PATRICIA POLITI v. ALESIO POLITI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1372-08T31372-08T3

PATRICIA POLITI, n/k/a

PATRICIA DEPASQUE MILLER,

Plaintiff-Respondent,

v.

ALESIO POLITI,

Defendant-Appellant.

_______________________________

 

Submitted May 11, 2010 - Decided

Before Judges Fuentes and Gilroy.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Bergen County

Docket No. FM-02-29572-87.

Alesio Politi, appellant pro se.

Dominic V. Caruso, attorney for respondent.

PER CURIAM

Defendant Alesio Politi appeals from the order of the Family Part denying his post-judgment motion seeking to modify the terms of the judgment of divorce (JOD) that dissolved the marriage between defendant and plaintiff Patricia Politi. We affirm. The following facts will inform our discussion of the legal issues presented.

The parties divorced on May 27, 1988. As part of the JOD, the court directed defendant to pay his former wife $50,000 as consideration for the relinquishment of her ownership interest in two businesses owned by the parties. In a subsequent order, the court also restrained defendant from entering the businesses and having contact with plaintiff. Defendant alleges that after these restraints were issued, plaintiff, her parents, and the family's "organized crime associates" stole approximately $350,000 worth of inventory from one of his businesses. According to defendant, plaintiff's father "threatened [to] 'cut my head off and send it to my mother' if I file[d] a criminal complaint." Plaintiff submitted affidavits from several persons in support of these allegations.

Shortly after these alleged thefts, defendant was convicted of kidnapping his former father-in-law; he served eighteen years in prison for this crime. Defendant was also convicted of aggravated arson for burning down his home in Little Silver; he was sentenced to a term of twenty years in prison for that offense to run concurrently with the kidnapping conviction. While incarcerated, defendant filed a series of motions seeking to modify the terms of the JOD.

Defendant's first post-judgment motion sought reconsideration of the relief granted plaintiff as part of the JOD. By order dated March 18, 2005, the court denied the motion without prejudice on procedural grounds, based on defendant's failure to comply with the requirements of Rule 1:4-1 and Rule 1:4-2. On July 18, 2006, the Family Part again denied one of defendant's attempts to modify the terms of the JOD. This time defendant failed to provide the court with evidence in support of the relief requested and failed to provide adequate proof of service of process. Because the denial was again based on procedural irregularities, the court noted that its decision was without prejudice. On November 14, 2006, the court denied yet another of defendant's motions for post-judgment relief based upon his failure to "provide evidence or exhibits to support his claims" and because he filed the motion "[eighteen] years after the parties[ ] divorced and offer[ed] no compelling reason with supporting evidence why he could not assert his rights within a reasonable time."

Defendant was released from prison in 2007. On June 6, 2008, defendant filed another post-judgment motion before the Family Part seeking: (1) to compel plaintiff to comply with the terms of the JOD; (2) to vacate the relief awarded to plaintiff in the JOD based on alleged fraud and duress committed by plaintiff; (3) to compel plaintiff to reimburse him for certain marital debts; (4) to compel plaintiff to turn over one-half of the marital assets; (5) to set a hearing date to adjudicate his claims based on fraud; (6) to conduct discovery concerning plaintiff's assets; and (7) for the court to award him costs, fees, and other just and equitable relief.

By order dated July 8, 2008, the court denied defendant's motion, finding that it was barred by the doctrine of laches because the motion was not brought within a reasonable time and defendant did not provide a compelling reason for his delay in prosecuting the motion. The trial court also found that defendant had not established a prima facie case of fraud on plaintiff's part. The court thereafter denied defendant's motion for reconsideration.

Against this record, we find no legal grounds to disturb the motion judge's ruling that defendant's claims are barred under the doctrine of laches. In Clarke v. Clarke ex rel. Costine, 359 N.J. Super. 562, 570 (App. Div. 2003), we held that "laches is the failure to assert a right within a reasonable time resulting in prejudice to the opposing side . . . The key factors are the length of delay, reasons for delay, and change of position by either party during the delay." Because laches is an equitable remedy, we review the Family Part's invocation of the doctrine under an abuse of discretion standard. Sears Mortgage Corp. v. Rose, 134 N.J. 326, 354 (1993).

In applying the doctrine of laches, the motion judge first found that defendant had not come forward with a plausible justification for waiting over twenty years to bring forth these allegations of fraud and theft against plaintiff. The judge rejected, as illogical and facially untenable, defendant's assertion that he did not file these claims because he feared his former father-in-law, the same person defendant later criminally abducted.

Nowhere does this defendant document . . . that the threat . . . allegedly made by plaintiff's [father] would give rise to the level of duress as to deprive the [defendant] of his rights . . . I think a reasonable person under that level of duress would not put himself in harm's way by kidnapping the person who's allegedly going to perpetuate a violent act against him.

It just is illogical to come to the conclusion that I was under such duress that I didn't go to a lawyer, file a lawsuit, and have the legal system protect me, so I kidnapped the guy . . . [I]t's illogical.

We agree.

Lastly, the motion judge properly found that plaintiff showed that she would suffer prejudice if the court permitted defendant's motion to go forward. The divorce proceeding ended more than twenty years ago; many of the files and documents pertaining to that proceeding have been destroyed or are otherwise unavailable. Additionally, human memory fades over time and the particulars of any given incident cannot be retrieved as simply as if one was conducting a document search on a computer.

Weighing these factors, the motion judge properly exercised his discretion in denying defendant's motion pursuant to the doctrine of laches.

Affirmed.

 

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A-1372-08T3

July 22, 2010