SHERYL BLOYD v. LEE BLOYD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5196-04T25196-04T2

SHERYL BLOYD,

Plaintiff-Respondent,

v.

LEE BLOYD,

Defendant-Appellant.

_________________________________________________________

 

Argued August 22, 2006 - Decided September 5, 2006

Before Judges R. B. Coleman and Holston, Jr.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County FV-18-1209-01.

Lee Bloyd, appellant, argued the cause pro se.

Mark Ferraz argued the cause for respondent (Vastola, Fackelman & Sullivan, attorneys; Dennis M. Fackelman, on the brief).

PER CURIAM

Defendant, Lee Bloyd, appeals from an order dated April 21, 2005 denying his motion for a new trial on the question of whether a final restraining order should have been issued against him in favor of his ex-wife, plaintiff Sheryl Bloyd. For reasons stated on the record in open court on April 21, 2005, Judge Thomas H. Dilts denied the relief requested by defendant. We affirm.

The final restraining order was issued on June 14, 2001. That order was issued by Judge Paul Armstrong, who was no longer assigned to the Family Part at the time of the motion from which this appeal is taken. Consequently, the motion was considered by Judge Dilts, the presiding judge of the Part. The judge had access to and recited his review of the transcripts and other materials presented at the time of the initial consideration of the domestic violence complaint.

Defendant took a timely appeal from the June 14, 2001 restraining order and in an unpublished per curiam opinion, decided April 25, 2002, this court affirmed that order. In that unpublished opinion, we stated:

As the trial judge noted in his oral opinion of June 14, 2001, there were serious questions of credibility, matters within the exclusive dominion of the fact-finder. State v. Butler, 32 N.J. 166, 196 (1960) cert. denied, 362 U.S. 984, 80 S. Ct. 1074, 4 L. Ed. 2d 1019 (1960). Accepting the testimony of the plaintiff, he found that on May 22, 2001, plaintiff had been the victim of a death threat and that she genuinely feared for her life, health and well-being. Specifically, the judge found, as a fact, after weighing the credibility of the parties, that during an argument, defendant took his thumb and raked it across plaintiff's throat and threatened that this is what will happen to her. These findings and the judge's conclusion are supported by the record. Rova Farms Resort v. Investors Ins. Co., [ 65 N.J. 474, 484 (1974).]

By order dated May 10, 2002, we denied defendant's motion for reconsideration of that decision, and we decline defendant's current challenge to the credibility assessment, after the passage of an additional four years.

In the motion from which defendant currently appeals, he contends that newly discovered evidence confirms that plaintiff is not and never has been credible. Defendant asserts that plaintiff filed her request for an order under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-1 to -35, not because she feared him but, rather, at the suggestion of her attorney and in order to gain an advantage in the divorce proceeding. Defendant emphasizes that plaintiff initiated the divorce proceeding within a week or two of the date of the hearing on the domestic violence complaint, yet she did not claim domestic violence in the divorce complaint. He contends that documents submitted in support of his motion for a new trial show that plaintiff "defied almost all court orders, stole money from the frozen accounts, cashed checks belonging to the defendant, lied to the Division of Youth and Family Services (DYFS), lied about her drinking to the evaluation personnel and [lied about] fear[ing] for her life or to be shot."

Judge Dilts noted that defendant's motion for a new trial was filed close to four years after the issuance of the final restraining order, but he, nevertheless, considered plaintiff's assertions on the merits. The judge concluded that the evidence relied upon by defendant does not constitute new evidence, as contemplated by the rules of court, and it does not furnish an appropriate basis to grant a new trial. As the judge explained, the omission of any reference to an act of domestic violence from a contemporaneously filed divorce complaint does not "rise to the level of a lie or a basis to grant a new trial or to even question the judge's decision when it was entered [in] 2001." This is so, the judge continued, because:

a complaint for extreme cruelty cannot rely upon and almost never refers to incidents that occurred within three months. It's not saying that no extreme [cruelty] occurred in the past three months. . . . If something is omitted from the complaint, it doesn't mean it's not true. It just means it hasn't been alleged either because, A, it shouldn't be as a matter of law, or B, the party chooses not to do so, and that's the party's choice.

We perceive no abuse of discretion in the court's denial of defendant's motion to vacate the final restraining order on that ground. We note further that R. 4:50-2 directs that motions for relief from a prior order or judgment must "be made within a reasonable time, and for reasons (a), (b) and (c) of R. 4:50-1 not more than one year after the judgment, order or proceeding was entered or taken." Subsection (a) is "mistake, inadvertence, surprise or excusable neglect." Subsection (b) is "newly discovered evidence, which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49," not later than twenty days after service of the judgment or order. Subsection (c) concerns "fraud . . . misrepresentation, or other misconduct of an adverse party." Plainly, defendant's motion for relief was made well beyond the time frames contemplated by the rules.

Even under subsection (f) of R. 4:50-1, often called the "catchall" provision, the extraordinary relief must be sought within a reasonable time, and may be involved "only upon a showing of exceptional circumstances." Bauman v. Marinaro, 95 N.J. 380, 393 (1984). In this case, the untimeliness is not reasonable. It is more than a matter of days or weeks. It is a matter of years. We conclude that the circumstances of this case are not so exceptional and the untimeliness is so great that no relief from the prior order is warranted.

In summary, a "motion for vacation of a judgment based on any of [the] specified grounds [in R. 4:50-1] should be granted sparingly, and is addressed to the sound discretion of the trial judge, whose determination will be left undisturbed unless it results from a clear abuse of discretion." Posta v. Chung-Loy, 306 N.J. Super. 182, 205 (1997). "Moreover, an application to open a judgment to take additional testimony with a possible consequent amendment of findings of fact necessarily invokes a broad judicial discretion." Quick Check Food Stores v. Springfield Twp., 83 N.J. 438, 446 (1980). Newly discovered evidence "must be such that it was not discoverable by diligent search at the time of trial." Ibid. We are satisfied that Judge Dilts fairly and reasonably exercised the discretion vested in him.

Finally, defendant argues the final restraining order has been used by plaintiff to harass him. At oral argument, defendant stressed that he has never purposely violated the restraining order, but he gave an example of the embarrassment he suffered when he was escorted by the police from a public performance at which the couple's child was a participant, solely because plaintiff was also present. While his exclusion is a harsh reality of the limiting effects of a restraining order under the Domestic Violence Act, that effect is not indicative of misuse or abuse by the one who is the protected party under the order. We are confident that a court reviewing a particular factual circumstance for purposes of enforcement would be sensitive and responsive to any claim of harassment, undue manipulation or exploitation by a protected party. On the record before us, we are unable to detect any such harassment, undue manipulation or exploitation.

 
Affirmed.

Pursuant to N.J.S.A. 2C:25-29c, "[u]pon good cause shown, any final order may be dissolved or modified upon application to the Family Part of the Chancery Division of the Superior Court, but only if the judge who dissolves or modifies the order is the same judge who entered the order, or has available a complete record of the hearing or hearings on which the order was based."

(continued)

(continued)

7

A-5196-04T2

RECORD IMPOUNDED

September 5, 2006