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Diane Mistretta v. Michael J. Mistretta

August 9, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1554-07.

Per curiam.


Argued May 30, 2012

Before Judges Messano and Espinosa.

Plaintiff Diane Mistretta appeals from: 1) the April 15, 2011 order of the Family Part denying her motion seeking recusal of the judge; and 2) the May 13, 2011 order denying plaintiff's various requests for post-judgment relief (the May 13 order). We have considered the arguments made in light of the record and applicable legal standards. We affirm.

Plaintiff and defendant Michael J. Mistretta were married on December 29, 1996 and had three children: a son born in 1998; a daughter born in 2000; and a son born in 2004. A final dual judgment of divorce was entered on January 29, 2008 that incorporated a property settlement agreement (PSA). Motion practice commenced almost immediately thereafter, resulting in a series of court orders that culminated in an August 17, 2009 order that, among other things, ordered a plenary hearing on numerous issues.

On October 26, 2009, Judge Colleen M. Flynn, entered a case management order requiring the parties to submit a list of issues to be determined at the plenary hearing and a brief statement of their respective positions. A multi-day plenary hearing was held before Judge Flynn on December 3 and 15, 2009, and January 14, 20, 29, February 3 and March 29, 2010. After listening to the testimony and examining the evidence presented by the parties, on May 12, 2010, the judge issued two orders reflecting her decisions, more thoroughly explained in a comprehensive written opinion dated May 11, 2010.

Motion practice continued unabated. An order was entered on June 10. On July 8, Judge Flynn entered an order that essentially denied plaintiff's request to reconsider a multitude of provisions contained in the May 12 orders. On September 20, the judge notified both parties that she was scheduling other "multiple motions pending" for decision on October 15. Judge Flynn entered an order on that date that, among other things, denied most of the relief plaintiff sought, including plaintiff's request for reconsideration of the June 10 order. On December 17, 2010, and February 4, 2011, additional orders followed further motion practice.

On March 22, 2011, plaintiff filed a motion seeking Judge Flynn's recusal "on the grounds of extreme prejudice and unprecedented discrimination." The judge denied the motion without argument by order dated April 15, concluding that, Plaintiff[] has clearly not met her burden in showing that the factual bases upon which she seeks disqualification are true. The Plaintiff has provided no objective evidence of bias or prejudice or even the appearance of same, which would justify recusal.

Plaintiff filed another motion on April 14, 2011 essentially seeking reconsideration of various provisions of prior orders. Judge Flynn addressed each request for relief and, in most instances, denied plaintiff's request and entered the May 13 order. This appeal followed.

We address each of the specific claims of error contained in the May 13 order.

Division of Bank Accounts

Plaintiff argues that following the plenary hearing, the judge "incorrectly calculated the bank accounts" of the parties such that based upon the provisions of the PSA, she is owed an additional $9,110.82 from defendant. In her July 8, 2010 order, the judge denied plaintiff's request to correct the bank account distribution, explaining that plaintiff did not meet the standard for reconsideration. The court also denied the same request in an April 28, 2011 order. Paragraph three of the order under review denies the request again, quoting the reasoning used by the judge in her July 8, 2010 order, and citing Rule 4:49-2.

Mistretta Homes Inc.

Plaintiff claims the judge erred in calculating the amount due to her from the equitable distribution of Mistretta Homes Construction Inc. The opinion that followed the plenary hearing includes a detailed breakdown of how Judge Flynn arrived at the amount, $53,031.46, reflecting plaintiff's 45% interest as set forth in the PSA. Plaintiff apparently contended that she was entitled to a further distribution based upon interest that should have accrued; costs, including accountant's fees that were incurred as a result of defendant's alleged delays in filing various tax forms; and from otherwise cooperating with the distribution. In the May 13 order, Judge Flynn noted that plaintiff's request was time-barred, pursuant to Rule 4:49-2. She also noted that plaintiff previously challenged the payment of accountant's fees, resulting in an order of December 17, 2010 denying her request.

Plaintiff also argues that she was entitled to be reimbursed $272 for her share of taxes paid in 2008 for the corporation's 2006 tax return. In the May 13 order, Judge Flynn concluded "[t]his [wa]s an issue that arose prior to the parties' divorce and should have been addressed pendente lite or in the parties' JOD/PSA. This is not an issue properly brought up post-judgment when the PSA includes a provision that all issues and claims are released or waived (see paragraph ...

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