ANDRES D. MELENDEZ v. EMILE K. CALIM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2726-06T12726-06T1

ANDRES D. MELENDEZ,

a/k/a ANDRES D. VALOIS,

Plaintiff-Appellant,

v.

EMILE K. CALIM,

Defendant-Respondent.

______________________________________________________________

 

Submitted September 19, 2007 - Decided

Before Judges Cuff and Lihotz.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM-09-2817-01.

Aslan T. Soobzokov, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Plaintiff Andres D. Melendez appeals from a Family Part order denying his request to amend his final judgment of divorce entered on December 20, 2001, to a judgment of annulment. Melendez stated he was mistaken when he sought divorce relief. The motion judge found no mistake of fact or law warranting that the judgment be vacated. We affirm.

Melendez and defendant Emile Calim married on May 16, 1994, in Bronx, New York. Melendez filed a complaint for divorce alleging abandonment in the Supreme Court, Bronx County, New York, on November 15, 1999. Melendez believed the filing resulted in the entry of a judgment of divorce. Melendez moved to New Jersey and married Janet Lopez on May 6, 2000. One child was born to Melendez and Lopez on March 5, 2001, and a second was born on January 25, 2003.

The Bureau of Immigration and Customs Enforcement (BICE) notified Melendez was that his petition for immigration could not be considered because BICE did not recognize his marriage to Lopez. It was then that Melendez learned the complaint for divorce had been dismissed for lack of prosecution and he remained married to Calim. Melendez proceeded to file a complaint for divorce against Calim in the Chancery Division, Hudson County, New Jersey. Divorce was granted by final judgment dated December 20, 2001. Melendez resubmitted his application to BICE requesting residency. He was advised by BICE that his marriage to Lopez was again not recognized because it occurred while he was married to another. BICE then initiated deportation proceedings.

Melendez filed a motion to amend the date of the final judgment of divorce to April 26, 2000, which was denied. Thereafter, he moved to "rescind the divorce judgment and permit [him] to file for nullification of the marriage to Calim." He stated that his immigration status "cannot be adjusted as a legal resident unless the marriage to Calim is annulled." Judge Sogluizzo denied the request on October 10, 2006, after determining plaintiff failed to establish a basis for relief as required by Rule 4:50-1, stating:

The reasons given for the within vacation [request] were well known to the plaintiff at the time of the divorce, [and] despite the plaintiff's imminent deportation, there is no good cause to set aside the judgment in order to give validity to his second marriage[,] which took place prior to the judgment of divorce.

Melendez filed for reconsideration. The court denied the motion on January 5, 2007.

The scope of our review is limited. "'The decision whether to vacate a judgment on one of the six specified grounds [of R. 4:50-1] is a determination left to the sound discretion of the trial court, guided by principles of equity' and that decision must be left undisturbed unless a clear abuse of discretion appears." Del Vecchio v. Hemberger, 388 N.J. Super. 179, 186-87 (App. Div. 2006) (quoting F.B. v. A.L.G., 176 N.J. 201, 207 (2003)). Under Rule 4:50-1, a court may relieve a party from a final judgment for "(a) mistake, inadvertence, surprise, or excusable neglect; . . . or (f) any other reason justifying relief from the operation of the judgment or order." The rule "is designed to reconcile the strong interests in finality of judgments and judicial efficiency with the equitable notion that courts should have authority to avoid an unjust result in any given case." Mancini v. EDS ex rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 334 (1993) (citations and internal quotations omitted). The timeliness of the motion is addressed by Rule 4:50-2, which requires that for allegations of mistake, inadvertence, or excusable neglect, the motion must "be made not more than one year after the judgment, order or proceeding was entered or taken."

We have analyzed the record in light of the written arguments advanced by plaintiff and the prevailing standards of law and conclude that plaintiff's arguments are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). Not only was plaintiff's motion untimely, having been filed five years after entry of the divorce judgment, but also plaintiff's suggested "mistake," which is, he should have sought an annulment rather than divorce, is not a reason for relief as allowed by the rule. We agree with Judge Sogluizzo's determination that plaintiff failed to present any evidential basis as required by Rule 4:50-1 to support that the judgment be set aside. We discern no abuse of discretion. Further, we find no abuse of discretion by Judge Sogluizzo in denying reconsideration of her initial decision. D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990).

Affirmed.

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A-2726-06T1

October 11, 2007