JANE BANSAL v. ASHWANI BANSAL
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0242-06T30242-06T3
A-0430-06T3
A-0598-06T3
JANE BANSAL,
Plaintiff-Appellant,
v.
ASHWANI BANSAL,
Defendant-Respondent.
______________________________________
Submitted September 8, 2008 - Decided
Before Judges Lisa and Sapp-Peterson.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-315-04 (A-0242-06T3 and A-0598-06T3); Law Division, Hunterdon County, Docket No. L-151-05 (A-0430-06T3).
Jane Bansal, appellant pro se.
Respondent did not file a brief in A-0242-06T3.
Nadine Maleski, attorney for respondent in A-0430-06T3.
Ashwani Bansal, respondent pro se in A-0598-06T3.
PER CURIAM
These are back-to-back appeals consolidated for purposes of this opinion. They arise out of a dissolution action in the Chancery Division, Family Part, and from a civil action in the Law Division for domestic torts that the Family Part judge severed from the dissolution action. Pro se plaintiff, Jane Bansal, appeals from the July 26, 2006 order of the Family Part denying her motion for relief from the final judgment of divorce (FJOD) entered on June 10, 2005, and the court's subsequent August 14, 2006 order denying her motion to enforce litigant's rights. From the Law Division action, plaintiff appeals the February 28, 2006 order granting defendant, Ashwani Bansal, partial summary judgment, and the May 10, 2006 order denying reconsideration, denying a discovery extension, and denying plaintiff's motion to disqualify the motion judge. Finally, plaintiff appeals from the August 25, 2006 order denying plaintiff's motion for a new trial.
On appeal, plaintiff raises the following points for our consideration under A-0242-06T3:
POINT I
PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT UNDER RULE 4:50-1 WAS TIMELY FILED AS REQUIRED BY RULE 4:50-2.
A. JUDGMENT OF DIVORCE ON FILE WITH COURT AND DEFENDANT SUBMITTED A COPY IN HIS RESPONSIVE PLEADINGS.
POINT II
GUIDED BY PRINCIPLES OF EQUITY AND JUSTICE, INTENT OF MOTION IS TO REOPEN JUDGMENT TO CURE OBJECTIVE FACTUAL MISTAKES AND OMISSIONS THAT HAVE BEEN REVEALED OVER THE PAST YEAR TO BE IN ACCORDANCE WITH INTENT OF TRIAL JUDGE, TO RESOLVE AMBIGUITIES, AND TO EXPUNGE VOID COMMENTS OUTSIDE OF JURISDICTION.
A. THE CONTINUED FAILURE AND REFUSAL OF THE DEFENDANT AND HIS FORMER EMPLOYER TO COMPLY WITH THE REQUIREMENTS OF THE DECISION AND THE JUDGMENT WARRANTS THE RELIEF SOUGHT AND JUSTIFIES THE TIME OF FILING THE MOTION FOR RELIEF FROM JUDGMENT.
B. WHAT RULE 4:50-1 MEANS TO PLAINTIFF AND HER RELIANCE ON IT FOR THE RELIEF SOUGHT.
C. NOT CORRECTING "OBJECTIVE" FACTUAL MISTAKES, OMISSIONS, AND AMBIGUITIES CONSTITUTES A MANIFEST ERROR NOT OPEN TO CONTROVERSY AND IS [A] PROPER SUBJECT FOR RELIEF UNDER RULE 4:50-1(a) and 1:13-1.
D. ORDER TO SEVER FORMALLY TERMINATED THE FAMILY COURT'S JURISDICTION OVER THE TORT CLAIMS SO ANY COMMENTS IN THE JUDGMENT REGARDING THESE TORT CLAIMS ARE INVALID AND VOID FOR ALL PURPOSES.
POINT III
THE TOTALITY OF THE CIRCUMSTANCES JUSTIFIES THE FILING OF PLAINTIFF'S MOTION AND THE RELIEF SOUGHT THEREIN.
A. EXERCISE OF DISCRETION REQUIRES CONSCIENTIOUS JUDGMENT, DIRECTED BY LAW AND REASON, AND LOOKING TO A JUST RESULT.
B. PLAINTIFF DENIED FAIR OPPORTUNITY TO BE HEARD: REQUEST FOR EXPANDED TIME TO GIVE FULL EXPRESSION TO FACTUAL ISSUES WAS DENIED, 10-MINUTE TIME LIMIT IMPOSED ON PLAINTIFF WAS AN EXERCISE IN FUTILITY.
POINT IV
ADDITIONS AND MODIFICATION TO JUDGMENT NEEDED TO OVERCOME MISTAKES, OMISSIONS, AND AMBIGUITIES IN ORDER TO GIVE FULL EXPRESSION TO INTENT OF JUDGMENT AND TO PROTECT PLAINTIFF'S RIGHTS AND INTERESTS.
A. RULE 1:13-1 AND FEDERAL RULE 60(a) ALSO APPLY TO THE RELIEF SOUGHT IN PLAINTIFF'S MOTION.
B. THE CONTINUED FAILURE AND REFUSAL OF THE DEFENDANT AND HIS FORMER EMPLOYER TO COMPLY WITH THE REQUIREMENTS OF THE DECISION AND THE JUDGMENT WARRANTS THE RELIEF SOUGHT AND JUSTIFIES THE TIME OF FILING THE MOTION FOR RELIEF FROM JUDGMENT.
1. BONUSES.
C. INTENTIONAL INCONSISTENT POSITIONS BARRED BY JUDICIAL EXTOPPEL.
2. LONG[-]TERM INCENTIVE COMPENSATION AWARDS.
3. GROUNDS FOR DIVORCE.
4. HOUSE REPAIR BILL.
5. ANNUAL BONUS FOR 2 003 AND 2004.
6. COLLEGE EXPENSES.
7. COUNSEL FEES.
8. SAVINGS ACCOUNT.
9. LIFE INSURANCE.
10. MEDICAL EXPENSE REIMBURSEMENT (FRAUD).
POINT V
A COURT ORDER WITHIN THE JURISDICTION OF THE COURT IS BINDING ON THE COURT ITSELF AND ON THE PARTIES, IS A MANDATORY DIRECTIVE TO COMPLY, AND IS ENFORCEABLE BY SANCTIONS.
A. FULL FACTS AND CORROBORATIVE EVIDENCE WITHHELD BY PLAINTIFF IN DIVORCE TRIAL DUE TO ORDER TO SEVER WHICH RESULTED IN JUDICIAL COMMENTS IN THE DECISION THAT WERE FACTUALLY MISTAKEN, INCONSISTENT, AND LEGALLY VOID.
POINT VI
AN ORDER RENDERED WITHOUT JURISDICTION IS VOID FOR ALL PURPOSES, IS OF NO FORCE AND EFFECT, AND CAN BE COLLATERALLY ATTACKED, INCLUDING UNDER RULE 4:50-1(d).
11. ORDER TO SEVER AND MONEY DIVERTED TO INDIA: JUDGE'S VOID COMMENTS CONTRADICTORY. DEFENDANT'S KNOWINGLY UNDERSTATING AMOUNT OF MARITAL ASSETS DIVERTED TO INDIA IS AN ADMISSION AGAINST INTEREST AND A PARTIAL RESTITUTION ONLY.
12. ORDER TO SEVER: "FLUCTUATIONS IN VALUE OF PORTFOLIO" PERTAINS ONLY TO THE NON-MARITAL UTMA ACCOUNTS AND ISSUES OF CUSTODIANSHIP AND DATE OF VALUATION, NOT TO FRAUD OR FINANCIAL DISHONESTY.
13. ORDER TO SEVER AND CREDIBILITY OF DEFENDANT: JUDGE'S OPINION BASED ON DEFENDANT'S MISLEADING AND INCONSISTENT STATEMENTS AND A LACK OF CREDIBLE EVIDENCE.
14. ORDER TO SEVER AND MARGIN DEBT LACK OF SUBJECT MATTER JURISDICTION (COUNTS VI AND VIII).
A. JUDGE FAILED TO COMPREHEND THE LEGAL EFFECT OF HIS OWN ORDER TO SEVER ON THE TERMINATION OF COURT'S JURISDICTION OVER THE TORT CLAIMS AND ON PLAINTIFF'S RIGHT TO A FAIR TRIAL. FACTUALLY MISTAKEN AND VOID JUDICIAL COMMENTS MUST BE DELETED FROM THE DECISION AND JUDGMENT.
B. IF RELIEF IS AVAILABLE UNDER ANOTHER PROVISION OF THE RULES, OBJECT OF COURT IS TO REACH A JUST AND FAIR RESULT REGARDLESS OF WORDING OF MOTION.
C. FEDERAL RULE 60(b): NO TIME LIMIT ON AN ATTACK ON A JUDGMENT AS VOID.
D. JUDGE HAS A DUTY TO ANNUL VOID COMMENTS IN DECISION AND JUDGMENT.
POINT VII
A VOID ORDER WILL NOT SUPPORT RIGHTS, REMEDIES, OR PROCEEDINGS PREDICATED ON IT.
A. IMPROPER RELIANCE OF LAW DIVISION ON VOID COMMENTS OF JUDGE CONTRARY TO CONTROLLING NEW JERSEY LAW.
Under A-0430-06T3, plaintiff raises the following points for our consideration:
POINT I
PLAINTIFF WAS NOT REPRESENTED BY COUNSEL IN THE DIVORCE TRIAL NOR IN THE ASSAULT TRIAL.
A. PARTY AGAINST WHOM COLLATERAL ESTOPPEL IS INVOKED MUST BE FULLY REPRESENTED BY COUNSEL IN THE PRIOR ACTION.
POINT II
FAMILY COURT'S ORDER TO SEVER TERMINATED ITS JURISDICTION OVER THE TORT CLAIMS AND THEIR ISSUES AND TRANSFERRED TO THE LAW DIVISION "ORIGINAL JURISDICTION" OVER THEM.
A. PLAIN AND HARMFUL ERRORS RESULTED WHEN FAMILY COURT JUDGE AND TWO LAW DIVISION JUDGES FAILED TO COMPREHEND THE LEGALLY BINDING EFFECT OF THE ORDER TO SEVER[] TERMINATION OF THE FAMILY COURT'S JURISDICTION OVER THE TORT CLAIMS.
B. EXERCISE OF DISCRETION REQUIRES CONSCIENTIOUS JUDGMENT, DIRECTED BY LAW AND REASON, AND LOOKING TO A JUST RESULT.
POINT III
A COURT ORDER WITHIN THE JURISDICTION OF THE COURT IS BINDING ON THE COURT ITSELF AND ON THE PARTIES, IS A MANDATORY DIRECTIVE TO COMPLY, AND IS ENFORCEABLE BY SANCTIONS.
POINT IV
FULL FACTS AND CORROBORATIVE EVIDENCE WITHHELD BY PLAINTIFF IN DIVORCE TRIAL DUE TO ORDER TO SEVER.
POINT V
JUDICIAL ESTOPPEL IS BINDING ON DEFENDANT AS PERSON WHO WAS FULLY RESPONSIBLE FOR FINANCIAL DECISIONS AND LOSSES.
A. MULTITUDE OF MISTAKEN CONCLUSIONS IN DECISION.
POINT VI
ISSUES LITIGATED IN THE DIVORCE TRIAL ARE NOT IDENTICAL TO THE ISSUES IN THE SEVERED TORT CLAIMS IN V, VI, AND VIII.
A. GENUINE ISSUES OF MATERIAL FACTS REMAIN.
B. "FLUCTUATIONS IN VALUE OF PORTFOLIO" PERTAINED ONLY TO THE NON-MARITAL UTMA ACCOUNTS AND ISSUES OF CUSTODIANSHIP AND DATE OF VALUATION AND NOT TO COUNTS VI OR VIII.
C. NO FACT[-]FINDINGS AS TO COUNT V.
POINT VII
NO FAIR AND FULL LITIGATION OF SEVERED TORT CLAIMS OF COUNT VI, FRAUD[,] AND COUNT VIII, GROSS NEGLIGENCE AND BREACH OF FIDUCIARY DUTY IN THE DIVORCE TRIAL.
A. ORDER TO SEVER AND MONEY DIVERTED TO INDIA: JUDGE'S VOID COMMENTS CONTRADICTORY. DEFENDANT'S KNOWINGLY UNDERSTATING AMOUNT OF MARITAL ASSETS DIVERTED TO INDIA IS AN ADMISSION AGAINST INTEREST AND A PARTIAL RESTITUTION ONLY (COUNT VI).
B. ORDER TO SEVER AND MARGIN DEBT: LACK OF SUBJECT MATTER JURISDICTION (COUNTS VI AND VIII).
POINT VIII
INVALID COMMENTS IN THE FAMILY COURT'S DECISION WERE INCONSISTENT, LEGALLY VOID, AND FACTUALLY MISTAKEN DUE TO THE DEFENDANT'S KNOWINGLY MISLEADING TESTIMONY, AND SUBSTANTIALLY PREJUDICED PLAINTIFF'S RIGHT TO A FAIR TRIAL IN THE LAW DIVISION.
POINT IX
IT IS A VIOLATION OF DUE PROCESS TO COLLATERALLY ESTOP A PARTY WHO HAS NEVER HAD AN OPPORTUNITY TO PRESENT EVIDENCE AND ARGUMENTS ON THEIR CLAIMS.
POINT X
AN ORDER RENDERED WITHOUT JURISDICTION IS VOID FOR ALL PURPOSES, IS OF NO FORCE AND EFFECT, AND CAN BE COLLATERALLY ATTACKED.
A. A JUDGMENT VOID FOR LACK OF JURISDICTION HAS NO FORCE AS RES JUDICATA.
B. FEDERAL RULE 60(b): NO TIME LIMIT ON AN ATTACK ON A JUDGMENT AS VOID.
POINT XI
A VOID ORDER WILL NOT SUPPORT RIGHTS, REMEDIES, OR PROCEEDINGS PREDICATED ON IT.
A. A JUDGMENT VOID ON ITS FACE IS A NULLITY AND CAN BE NEITHER A BASIS NOR EVIDENCE OF ANY RIGHT WHATEVER AS ALL ACTS PERFORMED UNDER IT ARE VOID.
POINT XII
IN LAW DIVISION, NO EVIDENCE EXISTED TO SUPPORT DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT BECAUSE VOID COMMENTS IN FAMILY COURT'S DECISION WERE A NULLITY AND THUS A "LEGALLY INVALID" BASIS ON WHICH TO MAKE A DETERMINATION OF RES JUDICATA.
A. DEFENDANT DID NOT MEET HIS BURDEN OF PROVING ISSUE PRECLUSION SINCE NO EVIDENCE OF THE "RECORD" OF THE PRIOR PROCEEDINGS WAS PROVIDED.
B. DEFENDANT DID NOT DISPUTE THE CORRECTNESS OR CONTROLLING APPLICABILITY OF FUNDAMENTAL NJ LAW.
POINT XIII
SUMMARY JUDGMENT SHOULD NOT BE GRANTED ON THE BASIS OF THE CREDIBILITY OF A WITNESS' TESTIMONY.
POINT XIV
DEFENDANT'S PRE-TRIAL OBSTRUCTION OF DISCOVERY IN TWO DIFFERENT COURTS OF JURISDICTION HAD SUBSTANTIALLY PREJUDICED PLAINTIFF'S RIGHT TO DUE PROCESS AND TO A FAIR TRIAL.
A. SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED WHILE DISCOVERY WAS NOT YET COMPLETED.
B. IN LAW DIVISION, DEFENDANT REFUSED TO ANSWER INTERROGATORIES AND DID NOT PRODUCE ANY DOCUMENTS DEMANDED IN NOTICE TO PRODUCE OR IN NOTICE IN LIEU OF SUBPOENA.
POINT XV
ASSAULT TRIAL IN LAW DIVISION.
A. PLAINTIFF'S ATTORNEY'S FAILURE TO PURSUE DISCOVERY NON-COMPLIANCE IN LAW DIVISION WARRANTED AN EXTENSION OF DISCOVERY AND POSTPONEMENT OF TRIAL IN ORDER FOR FAIRNESS AND JUSTICE TO PREVAIL.
B. DISMISSAL OF REMAINING TORT CLAIMS AND ISSUES IN COUNTS V, VI, AND VII BY MUTUAL DECISION OF [SECOND] LAW JUDGE AND DEFENDANT'S ATTORNEY.
C. JUDICIAL ESTOPPEL IS BINDING ON DEFENDANT AS AGGRESSOR SO HE CANNOT ASSERT SELF-DEFENSE.
D. PLAINTIFF NOT GIVEN OPPORTUNITY FOR REBUTTAL AND JUDGE PREJUDICED JURY IN FAVOR OF DEFENDANT BY HIS REMARKS ABOUT THE IMPLICATIONS OF A RESTRAINING ORDER. NO PROCEDURAL SAFEGUARDS FOR PLAINTIFF.
E. JURY VERDICT WAS INCONSISTENT, IMPROPER, AND IRRECONCILABLE AND, THEREFORE, FATALLY DEFECTIVE, AND SHOULD BE SET ASIDE.
POINT XVI
CHANGE OF VENUE DUE TO MANIFEST INJUSTICES.
Finally, under A-0598-06T3, plaintiff raises the following points for our consideration:
POINT I
FAMILY COURT HAS AUTHORITY AND DUTY TO ENFORCE SUPPORT ORDERS.
POINT II
SETTLEMENT AGREEMENTS ARE CONTRACTS AND ARE ENFORCEABLE.
POINT III
THE CONTINUED FAILURE AND REFUSAL OF THE DEFENDANT TO COMPLY WITH THE REQUIREMENTS OF THE PRIOR SETTLEMENT AGREEMENT AND DECISION WARRANTS THE RELIEF SOUGHT.
POINT IV
SITUATION FURTHER AGGRAVATED BY DEFENDANT HAVING CONCEALED HIS CHANGE OF EMPLOYMENT IN 2006.
A. DEFENDANT CONTINUES IN 2007 TO WITHHOLD INFORMATION ABOUT NEW EMPLOYER FROM PLAINTIFF AND PROBATION DEPARTMENT.
POINT V
STIPULATION OF ALIMONY AND BONUS AGREEMENT.
A. DEFENDANT/RESPONDENT IS CLEARLY IN ARREARS ON SUPPORT PAYMENTS.
B. DEFENDANT CLAIMS TO BE CURRENT IN HIS ALIMONY PAYMENTS DESPITE EVIDENCE TO THE CONTRARY.
POINT VI
INCONSISTENT POSITIONS BARRED BY JUDICIAL ESTOPPEL.
A. DEFENDANT UNILATERALLY CHANGES TERMS OF ALIMONY AND BONUS AGREEMENT OVER PLAINTIFF'S OBJECTIONS.
B. DEFENDANT KNEW HIS JOB CHANGE IN 2006 MEANT NO ANNUAL BONUS RECEIVED IN 2007 FROM FORMER EMPLOYER.
C. JUDICIAL ESTOPPEL PREVENTS DEFENDANT FROM ASSUMING POSITIONS INTENTIONALLY INCONSISTENT WITH PREVIOUSLY ASSERTED POSITIONS REGARDING STIPULATED AGREEMENT.
D. DEFENDANT'S INTENTIONALLY INCONSISTENT POSITIONS REGARDING BONUSES CAUSES PROBATION DEPARTMENT'S UNWILLINGNESS TO ENFORCE STIUPLATED BONUS AGREEMENT.
POINT VII
PLAINTIFF'S MOTION SEEKS TO ENFORCE HER RIGHTS AND INTERESTS DUE TO DEFENDANT'S REFUSAL TO COOPERATE.
A. DEFENDANT FAILED, ON PLAINTIFF'S BEHALF, TO ESTABLISH HER RIGHTS AND INTERESTS IN CERTAIN MARITAL ASSETS AND BONUSES WITH HIS FORMER EMPLOYER.
POINT VIII
COURT'S NON-ENFORCEMENT OF PLAINTIFF'S RIGHTS IS AN ABUSE OF DISCRETION AND A MANIFEST DENIAL OF JUSTICE.
POINT IX
DEFENDANT'S CONDUCT AND PROBATION DEPARTMENT'S FAILURE TO PERFORM WARRANTS AN AUTOMATIC WAGE DEDUCTION ARRANGEMENT FOR DIRECT PAYMENT OF ALIMONY AND BONUSES.
A. ALIMONY PAYMENT DEFICIENCIES.
B. PROBATION DEPARTMENT UNWILLING TO CONSISTENTLY INSTITUTE AN AUTOMATIC WAGE DEDUCTION FOR ALIMONY.
C. AUTOMATIC WAGE DEDUCTION FOR ALIMONY NO LONGER IN PLACE AGAIN SINCE PROBATION DEPARTMENT HAS FAILED TO REQUIRE DEFENDANT TO DISCLOSE INFORMATION REGARDING HIS NEW EMPLOYER.
D. PROBATION DEPARTMENT UNABLE TO PROCESS IRREGULAR BONUS PAYMENTS WHICH HAS CONTRIBUTED, IN PART, TO THEIR LACK OF ENFORCEMENT.
E. AUTOMATIC WAGE DEDUCTIONS ALREADY IN PLACE FOR TAXES AND DEFENDANT'S VOLUNTARY CONTRIBUTIONS TO 401K AND MEDICAL SPENDING ACCOUNT, SO DEDUCTIONS AND DIRECT DEPOSIT OF PLAINTIFF'S ALIMONY AND SHARE OF BONUSES WOULD BE NO BURDEN ON EMPLOYER.
POINT X
DEFENDANT OWES PLAINTIFF ARREARS ON ALIMONY AND BONUSES PLUS INTEREST AND PENALTIES.
POINT XI
DEFENDANT SHOULD BE BARRED FROM ELECTING TO DEFER THE PAYMENT OF ANY BONUSES THAT HE'S ELIGIBLE FOR.
POINT XII
DEFENDANT SHOULD BE ORDERED TO PROVIDE FULL DOCUMENTATION ON ALL MATTERS PERTAINING TO MARITAL ASSETS, ALIMONY, AND BONUSES WHICH PLAINTIFF IS ENTITLED TO NOW AND IN THE FUTURE.
A. DEFENDANT AND HIS EMPLOYERS SHOULD FURNISH PLAINTIFF DOCUMENTATION PERTAINING TO ANY BONUSES RECEIVED BY HIM.
B. DEFENDANT FAILED TO PROVIDE DOCUMENTATION ON MASSMUTUAL CASH SURRENDER VALUE AND TO PAY PLAINTIFF INSURANCE AND CHECKING ACCOUNT PROCEEDS.
C. DEFENDANT SHOULD FURNISH PLAINTIFF IRS-CERTIFIED COPIES OF HIS INCOME TAX RETURNS FOR 2003, 2004, 2005, AND 2006.
POINT XIII
A COURT SHOULD RENDER JUSTICE ACCORDING TO THE LAW IN THE INDIVIDUAL CASE.
POINT XIV
COURT SHOULD ESTABLISH JURISDICTION OVER DEFENDANT'S EMPLOYERS TO PROTECT AND ENFORCE PLAINTIFF'S RIGHTS AND INTERESTS IN THE ALIMONY AND BONUS AGREEMENT.
A. DEFENDANT VIOLATING PLAINTIFF'S OWNERSHIP RIGHTS AND INTERESTS IN LONG[-]TERM INCENTIVE (BONUSES) COMPENSATION AWARDS BY OPTING TO DEFER PAYMENT BEYOND THE ORIGINAL 5-YEAR MATURITY DATES.
We have considered plaintiff's arguments in light of the record and applicable legal principles. We conclude that as to the Family Part matters, with the exception of the rulings related to child support, grounds for divorce and defendant's long-term incentive awards, the remaining arguments are procedurally barred or otherwise do not establish a basis for relief. We conclude further that with regard to the Law Division action, the judge (1) did not abuse his discretion in denying a further extension of discovery, (2) properly granted partial summary judgment, and (3) did not err in denying plaintiff's motion for a new trial.
The parties were married in a civil ceremony on August 18, 1978. Two children were born of the marriage, one in 1983 and one in 1986. With the exception of a brief four-month stint as a temporary office worker, plaintiff was a homemaker and primary caretaker for the couple's two children. Defendant was the director of marketing for NACCO, a company involved with industrial lift trucks. His gross income at the time plaintiff filed for divorce in 2004 was $189,103.
In April 2004, plaintiff filed a divorce complaint that was twice amended. Plaintiff alleged extreme cruelty (Count One), assault and abuse (Count Two), fraud and misrepresentation (Count Three), Negligent Infliction of Emotional Distress (NIED) (Count Four), gross negligence (Count Five), and unjust enrichment (Count Six). According to plaintiff, defendant mismanaged their financial affairs, concealed and misrepresented financial activities, used margin debt to finance high-risk stock purchases, transferred marital funds to his family in India, withdrew 401(K) funds, refused to abide by her request to diversify their financial portfolio, and sabotaged her relationship with their children, causing her to suffer serious emotional distress.
On February 18, 2005, over plaintiff's objection, the motion judge severed the second, third, and fourth counts of the complaint and transferred the disposition of those claims to the Law Division. The judge determined that removal of the domestic tort claims was appropriate, particularly where there were no overriding parenting time or child support issues.
As a result of the severance order, the only remaining issues before the Family Part were the questions of alimony and equitable distribution. Prior to trial, the parties resolved the question of alimony and, with each represented by counsel, they placed the agreement on the record on February 23, 2005. Under the agreement, upon the sale of the marital home, defendant would pay $4,600 per month in alimony plus twenty-five percent of any bonus "received." This amount was based on defendant's 2004 earnings of $143,499.96 per year, with a bonus of $45,603, and plaintiff's imputed earnings of $30,000 per year. This agreement was later incorporated into the final judgment of divorce.
The parties proceeded to trial solely on the issue of equitable distribution. Plaintiff, who at that point was appearing pro se, urged that she should be awarded more than fifty percent of the parties' assets because of defendant's "financial dishonesty." She presented a list of their known assets and liabilities and testified that defendant had failed to disclose other assets. She referenced an earlier Case Information Statement (CIS) that she claimed reflected a savings account maintained by defendant that had not been disclosed during discovery as an example of defendant's financial dishonesty. She produced defendant's 2004 CIS and 2005 CIS, which she claimed misstated defendant's income and expenses. She also contended that defendant never produced a copy of the Fidelity checkbook, from which fifty-four checks were written. Plaintiff maintained that she should not be held responsible for the margin debt because defendant incurred that debt without her knowledge or consent.
During cross-examination, plaintiff acknowledged that she had withdrawn money from her savings account after the court had ordered both parties not to dissipate assets. Plaintiff stated that she used the money for her attorney's fees and that there was still at least half of the $44,790.29, which had been in the account at the time the court entered its order, left for defendant.
Defendant, in his testimony, explained that he had been paying the college expenses of their older daughter and would pay the college expenses of the younger daughter, who would begin college the following fall. He intended to defray her college expenses through his own funds, as well her Uniform Transfers to Minors Account (UTMA), over which plaintiff was the named custodian. He requested that the two UTMA accounts be restored to the children, who, at the time of the trial, were both over the age of eighteen.
Next, defendant discussed plaintiff's savings account. He requested that he receive one-half of the balance of that account as of the date of the divorce complaint. He noted that plaintiff took money out of the parties' joint checking account and transferred it into her own savings account without defendant's consent.
After that, defendant addressed the parties' margin debt, explaining that they utilized margin debt for twenty years, that all transactions were reviewed with plaintiff, and that she had access to all of the monthly statements. He testified that he transferred between $70,000 and $100,000 to India over the course of the marriage and that plaintiff consented to every transaction.
After defendant's testimony, the judge allowed plaintiff the opportunity to refute some of defendant's claims. As to the UTMA accounts, plaintiff maintained that defendant had sole control over these accounts and that it was his fault they had depreciated in value. She attempted to describe other investment accounts that depreciated in value due to defendant's high-risk investments in the stock market. Plaintiff explained that she opened up her own savings account to try to save the money they were losing. As to the transfer of funds to India, plaintiff argued that she never consented to any of those transactions.
The judge questioned the parties on the assets listed in the balance sheet. With respect to defendant's long-term compensation awards, plaintiff argued that those awards were not part of the alimony agreement and were instead subject to equitable distribution. The judge requested a copy of the transcript of the alimony agreement so that he could determine whether the awards should be equitably distributed.
On May 18, 2005, the trial judge set forth his oral decision on the record. As an initial matter, he noted the parties' agreement previously placed on the record on February 23, 2005, in which defendant agreed to pay $4,600 per month in alimony plus twenty-five percent of any bonus received upon the sale of the marital home. The judge noted that custody and parenting time were no longer issues as both daughters were over the age of eighteen. However, he did order that the daughters' UTMA accounts, valued at $44,000 and $29,000 respectively, be turned over to defendant because he had agreed to assume responsibility for their educational expenses. The court granted plaintiff a judgment of divorce on the grounds of extreme cruelty, having found that she satisfied all the statutory and procedural requirements. In so doing, the judge noted that plaintiff's outstanding Tevis claims had been transferred to the Law Division.
The judge next identified the assets and liabilities subject to equitable distribution in accordance with Rothman v. Rothman, 65 N.J. 219, 232 (1974). He identified the following assets: (1) marital home valued at $600,000, (2) bank accounts, (3) two vehicles, (4) personal property and coins, (5) stocks held in Vanguard and Fidelity accounts, (6) defendant's pension and profit-sharing plans, (7) five IRAs, and (8) Massachusetts Mutual Life Insurance policies. The judge identified the following liabilities: (1) margin debt of $40,000, (2) home repair of $6,061.90, and (3) house mortgage with balance of $85,000.
The judge then analyzed the statutory criteria set forth in N.J.S.A. 2A:34-23.1 to determine the proper distribution. Specifically, with regard to the contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property, N.J.S.A. 2A:34-23(i), the judge determined that defendant did not engage in fraud or dishonesty. The judge specifically noted:
I find that the plaintiff was aware of financial transactions, and as such, she should share equally in increases and equally in the losses in the value due to market performance of these assets. As to the losses relating to the [U]TMA accounts, it was the plaintiff who was custodian of these accounts. She had legal title. She kept the records. Not only of these, but kept other financial records in the marital home which she occupied. I find no basis to hold the defendant solely accountable for the decreases in the values of these assets which are intended for the benefit of the children.
However, the judge did find that defendant diverted between $70,000 and $100,000 to India without plaintiff's consent. Accordingly, he credited $42,500 to plaintiff, which represented one-half of the estimated $85,000 that defendant sent to India. The judge also deducted $3,030.95 from defendant's share of the equitable distribution to pay for one-half the cost of recent home repairs.
After accounting for the various credits and deductions attributable to each party, the court determined the marital res, which included bank accounts, stocks, Individual Retirement Accounts (IRAs) and life insurance policies, would be equitably distributed on a fifty-fifty basis. Plaintiff was also awarded her marital share of defendant's pension and profit sharing plans, which were to be divided by a Qualified Domestic Relations Order (QDRO), the cost of which was to be shared between the parties. Additionally, the court directed that defendant's deferred income account and long-term incentive account be included in the QDRO. The court ordered defendant to continue to maintain his Fidelity Life Insurance policy, with plaintiff listed as the beneficiary in the amount of $600,000 and the children in the amount of $200,000, until further order of the court. Each party was to maintain their own health insurance and plaintiff was entitled to COBRA. The parties were to share equally in any tax refunds but only to the extent the refund stemmed from the filing of a joint tax return. Defendant was awarded the medical savings accounts.
The judge concluded by stating that both parties were responsible for their own counsel fees. Defense counsel submitted an FJOD incorporating the judge's decision, which was signed on June 9, 2005, and filed on June 10, 2005.
On June 12, 2006, a year and two days after the JOD had been entered, plaintiff filed a motion for relief from judgment under Rule 4:50-1(a), (c), and (f). Although plaintiff claims that she filed the motion on June 9, she did not attach a filed copy of her motion in her appendix (even though she submitted filed copies of other motions submitted to the court). She listed a total of twenty errors in the judge's decision and the FJOD, ten of which she raises in this appeal. The trial court heard oral argument on July 21, and issued an order on July 26, denying plaintiff's motion in its entirety. In a statement of reasons, the judge found that plaintiff had not filed her Rule 4:50-1(a) and (c) claims within the one-year time period set forth in Rule 4:50-2. He further found that plaintiff had not demonstrated mistake, fraud, or injustice stemming from the FJOD, and that she was merely unhappy with the decision reached by the court. Plaintiff filed a notice of appeal from the order denying her motion for relief from judgment on September 7.
On July 13, 2006, one month after she filed her motion for relief from judgment under Rule 4:50-1, plaintiff filed a motion for enforcement of litigant's rights under Rule 1:10-3. She requested, among other things, that defendant pay her for deficiencies in alimony, that the alimony payments be made through automatic wage deduction, and that defendant pay her certain bonuses. The trial judge heard oral argument on August 11, and issued an order filed August 14, denying her requests for relief. Plaintiff filed a notice of appeal of that order on September 27, 2006, and an amended notice of appeal on October 13, 2006.
After the court severed the domestic torts counts from plaintiff's matrimonial action, plaintiff, on April 1, 2005, filed a ten-count amended complaint alleging assault and battery (Counts One through Four), financial abuse (Count Five), fraud and misrepresentation (Count Six), Negligent Infliction of Emotional Distress (NIED) (Count Seven), gross negligence (Count Eight), breach of marriage contract (Count Nine), and unjust enrichment (Count Ten).
The factual allegations plaintiff set forth in the complaint claimed that defendant hit, kicked, slapped, and shoved her into the furniture and onto the floor on four separate occasions. Plaintiff also alleged that defendant diverted his entire salary to a bank account in North Carolina, denied plaintiff access to marital funds, removed plaintiff as beneficiary on three IRA accounts, canceled joint credit cards, threatened plaintiff's medical and dental benefits, and knowingly misrepresented and/or concealed his use of marital assets, which included (1) incurring margin debt to fund high-risk stock purchases, (2) transferring funds to India, (3) purchasing $80,000 worth of Indian bonds, (4) withdrawing money from his 401(K) to pay the college expenses of their oldest daughter, and (5) failing to disclose documents pertaining to these transactions during the course of litigation. Further, plaintiff claimed defendant squandered and wasted marital assets when he purchased high-risk stock without diversifying their portfolio, refused to cash out their daughters' UTMA accounts, threatened her financially, concealed financial information, and gambled in the stock market.
Defendant successfully moved for partial summary judgment dismissing plaintiff's claims of gross negligence, breach of marriage contract and unjust enrichment. Additionally, the court ruled that plaintiff could not re-litigate those issues about which the Family Part judge had made factual findings. The judge extended discovery for an additional sixty days. Plaintiff thereafter filed a motion for reconsideration. In the motion, she also sought a further extension of discovery and disqualification of the motion judge. The court denied all of the motions.
Defendant filed a second motion seeking partial summary judgment, and over plaintiff's objection, the court granted the motion dismissing plaintiff's financial abuse, fraud, and misrepresentation claims. The court concluded that the factual allegations supporting these claims had already been addressed in the Family Part judge's decision. The judge reserved decision on the NIED claim, surmising that this claim could potentially proceed as an intentional infliction of emotional distress claim (IIED).
Trial on the NIED/IIED claims commenced on June 2, 2006 and concluded on June 6. Near the close of evidence, defendant again moved to dismiss plaintiff's NIED claim. The court granted the motion, finding that the conduct about which plaintiff complained did not rise to the level necessary to sustain a claim for either NIED or IIED. As to the remaining claims before the jury, it found that plaintiff proved an assault. Nonetheless, the jury found that defendant acted in self-defense with respect to each and every assault. As such, the jury entered a verdict of no cause in favor of defendant on the assault and battery claims.
Plaintiff moved for a new trial, asserting twenty-three grounds for relief. The court denied the motion in its entirety. Plaintiff filed a timely appeal challenging the court's February 28 order granting partial summary judgment, the May 10 order denying her recusal application and her request for a further extension of discovery, and the August 25 order denying her motion for a new trial.
I.
The Family Part Action - Dissolution Action
Rule 4:50 provides relief from judgment may be obtained
[o]n motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) 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; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.
Generally, with the exception of default judgments, motions for relief from judgment under Rule 4:50 should be granted sparingly. Pressler, Current N.J. Court Rules, comment on Rule 4:50-1 (2008). To establish a right to relief under Rule 4:50-1, the moving party must show "that enforcement of the order would be unjust, oppressive or inequitable." Harrington v. Harrington, 281 N.J. Super. 39, 48 (App. Div.), certif. denied, 142 N.J. 455 (1995). The court must then balance "'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.'" Baumann v. Marinaro, 95 N.J. 380, 392 (1984) (quoting Manning Eng'g, Inc. v. Hudson Cty. Park Comm'n, 74 N.J. 113, 120 (1977)). The rule, however, may not be used to circumvent the time limitations for appeals and other post-judgment motions in order to challenge erroneous factual findings and trial errors. Id. at 392; Hodgson v. Applegate, 31 N.J. 29, 36-37 (1959); Wausau Ins. Co. v. Prudential Prop. & Cas. Ins. Co., 312 N.J. Super. 516, 519 (App. Div. 1998); DiPietro v. DiPietro, 193 N.J. Super. 533, 539 (App. Div. 1984). Thus, the denial of a motion for relief from judgment will not be disturbed absent a clear abuse of discretion. In re Guardianship of J.N.H., 172 N.J. 440, 473 (2002).
A motion for relief from judgment may be filed at anytime, except that for reasons set forth in subsections (a), (b) and (c) of the rule, the motion must be made not more than one year after the judgment or order was entered. See R. 4:50-2. Moreover, neither the parties nor the court may enlarge the time specified by Rule 4:50-2. See R. 1:3-4(c). Thus, a court's first inquiry is to determine under what section of the rule relief is being sought and, secondly, to determine whether the moving party has put forth a basis for relief under the particular subsection.
Here, the court denied the motion, finding,
Plaintiff did not file her motion within the time period stated in [Rule] 4:50-2 on her [Rule] 4:50-1(a) and 4:50-1(c) claims. Even looking at the substance of these claims, Plaintiff has not demonstrated mistake, fraud or injustice stemming from the Judgment of Divorce; it appears Plaintiff is merely unhappy with the decision reached by the Court. Further, although Defendant provided the Court with 24 [e]xhibits with her [m]otion, she did not attach a copy of the Judgment of Divorce from which she seeks relief.
In plaintiff's motion, she sought relief based upon "[m]istakes and [i]nadvertences" (subsection (a)), "[f]raud, [m]isrepresentation, and [m]isconduct" (subsection (c)), and "[o]ther [r]eason [j]ustifying [r]elief from the [o]peration of the [j]udgment" (subsection (f)). We address each of the bases claimed.
A. Mistake and Inadvertence
As to plaintiff's claim for relief based upon mistakes and inadvertences, (subsection (a)), she contends there were clerical errors related to the effective date she was to receive her twenty-five percent share of defendant's bonuses, and requested that defendant's employer be required to send written notices to her of bonuses he received and that her share be paid through automatic deduction. She also argued that long-term incentive compensation awards could not be divided by a QDRO because such awards were not qualified plans under the Employee Retirement Income Security Act (ERISA), 29 U.S.C.A. 1001 to 1461, and therefore cannot be divided by QDRO.
Plaintiff also raised questions about the pension/profit sharing plans and sought language that specifically identified the two plans that could be divided by QDRO. Additionally, she wanted language related to the unfunded benefit plan changed to read as she proposed.
Next, plaintiff noted that the FJOD neglected to include that extreme cruelty was the basis upon which the court dissolved the parties' marriage. She also complained that defendant owed her money for house repairs that the JOD required the parties to assume equally. Further, plaintiff contended the annual incentive bonuses for 2003 and 2004 that defendant received were "erroneously omitted from equitable distribution."
Plaintiff also contended that since the only issue litigated "in regard to the UTMA's was to remove Plaintiff as the custodian of the two UTMA accounts and turn over the custodianship of said accounts to the Defendant," she was entitled to $23,642.08 or half of the $47,284.16 in their older daughter's UTMA custodial account.
Plaintiff believed that she was entitled to a retroactive award of counsel fees, that she should be able to keep money from the couple's savings account that the court equitably distributed, and requested that she be designated the primary beneficiary on defendant's term life insurance with Fidelity Investments with a renewal in the same $800,000 amount after defendant reached sixty-three years old.
Finally, plaintiff requested damages for defendant's "intentional and malicious cancellation of Plaintiff's medical and dental coverage and an order directing that plaintiff be afforded an opportunity to sign up for Cobra coverage under the original cost in existence during the period of her eligibility which expired in October 2005[,]" with the court directing defendant to "sign whatever papers required to effectuate this."
B. Fraud, Misrepresentation and Other Misconduct
In connection with her claims of fraud, misrepresentation, and other misconduct of defendant, (subsection (c)), plaintiff claimed that "Defendant engaged in pre-trial misconduct by obstructing discovery in an effort to intentionally conceal material documents[,]" fraudulently submitted a claim for reimbursement of medical expenses which she actually paid, and he owed her $131,825 as her share of marital assets dissipated when he diverted those assets to persons in India without her knowledge and consent.
The FJOD was entered on June 10, 2005. Plaintiff's motion was not filed until June 12, 2006. Therefore, the court properly denied plaintiff's motion for relief from judgment based upon subsections (a) and (c).
However, assuming the court's reliance upon FACTS was misplaced, in view of the June 9 motion filing fee receipt, we agree that plaintiff's motion was, as the judge characterized it, a reflection of her dissatisfaction with the trial judge's decision. Plaintiff's remedy for such dissatisfaction was a motion for new trial or direct appeal. See Hodgson, supra, 31 N.J. at 36-37 (1959). Plaintiff's failure to resort to any of these remedies is not cured through a Rule 4:50 motion. See Wausau, supra, 312 N.J. Super. at 519 (holding relief under Rule 4:50 is not a substitute for appeal) (citing DiPietro, supra, 193 N.J. Super. at 539).
Nonetheless, in our view, although plaintiff asserted the omission of the grounds for divorce from the FJOD as a mistake subject to relief pursuant to Rule 4:50, the omission is an error "arising from oversight and omission that may at any time be corrected by the court on its own initiative or on the motion of any party[.]" See R. 1:13-1. Plaintiff is therefore entitled to the entry of an amended FJOD reflecting the grounds for divorce granted by the court.
C. Any Other Reason Justifying Relief
As to plaintiff's claims asserted under subsection (f), any other reason justifying relief from the operation of the judgment or order, relief may be sought at any time. Relief under this subsection requires a showing of exceptional circumstances justifying the relief sought. Once again, however, this subsection ordinarily may not be utilized to raise trial errors. Hodgson, supra, 31 N.J. at 36-37.
In seeking relief under this section, plaintiff asserts that defendant owes her in excess of one million dollars in compensation for avoidable losses in nine investment accounts caused by defendant's failure to diversify their stock portfolio and by incurring margin debt without her knowledge and consent. These are issues that plaintiff presented at trial, and plaintiff's dissatisfaction with the trial court's findings should have been the basis for direct appeal or a motion for a new trial, not a motion for relief from judgment. Ibid.
Additionally, plaintiff contends that once the court severed the tort issues, she abided by the order and did not litigate any of the severed tort issues. On the other hand, she argues that throughout the trial, the Family Part judge commented on the severed issues, knowing that those issues were not before the court and that there was "no competent record or evidence or basis before him on which to make any comments or spurious findings on matters involved in the severed and transferred claims."
In denying plaintiff's motion, the court did not address plaintiff's claim for relief asserted under subsection (f), which, as we noted earlier, affords a party the opportunity to seek relief at any time. Nonetheless, because the substance of plaintiff's claims raise trial errors, which are not appropriate matters for relief under Rule 4:50, Hodgson, supra, 31 N.J. at 363, we find the court's failure to specifically address plaintiff's claims under this subsection harmless. We do, however, believe that plaintiff's claim related to defendant's long-term incentive awards compensation, raised as "mistakes and inadvertences" under subsection (a), should have been considered by the trial court under subsection (f).
Plaintiff argues that she has been unable to collect her share of three long-term incentive compensation awards. Although plaintiff raised this issue as a basis for relief under subsection (a) of Rule 4:50-1, we believe plaintiff is entitled to relief pursuant to subsection (f).
Defendant does not dispute that the long-term compensation awards cannot be divided by QDRO. Defendant instead argues that plaintiff's share will be distributed in accordance with the divorce agreement and that there is nothing else that needs to be done in this area. Defendant maintains that he has the right to elect the timing of receipt of these payments beyond the minimum mandated waiting time. Since these payments cannot be received in partial amounts, defendant cannot elect a fifty percent payout and turn those proceeds over to plaintiff. Because defendant has a much higher financial burden than plaintiff, he will elect the timing of the payment that is appropriately balanced between the need for money and incurring additional tax liability.
In his oral decision, the trial judge determined that the long-term compensation awards were subject to equitable distribution:
As to pension, profit sharing, they will be QDRO'd. The plaintiff will be entitled to her marital coverture to April 22nd, 2004. This will be accomplished by the defendant's counsel or outside service. Likewise, the defendant's deferred account -- income account and long-term incentive account will be QDRO'd. All IRA's -- excuse me. The cost of doing the QDROs will be equally divided between the parties. (emphasis added)
The judgment of divorce incorporated the judge's determination as follows:
Deferred Income Account/Long Term Incentive Account. These accounts will be divided by Qualified Domestic Relation Order, if necessary. The plaintiff is entitled to her marital coverture to April 22, 2004. This will be accomplished by the defendant's legal counsel or an outside service. The expense of the Qualified Domestic Relation Order will be divided between the parties.
Generally, a QDRO recognizes the existence of an alternate payee's right to receive all or part of the benefits payable to an employee under a retirement plan. It typically permits an alternate payee to collect his or her share of the benefits in accordance with the terms of the plan, but it may not permit any type of benefit or option not otherwise provided by the plan. In other words, an alternate payee can elect to collect benefits as soon as the employee is eligible to do so, regardless of whether or not the employee actually chooses to do so at that time. See generally, Susan Reach Winters & Thomas D. Baldwin, 11 New Jersey Practice, Family Law and Practice, 37, 389-419 (1999).
Here, it appears the trial judge intended for the three long-term compensation awards to be distributed in the same manner that a pension is distributed by QDRO. Thus, plaintiff would be entitled to her share of these awards on the date that defendant was eligible to receive them. Because the judge's decision that plaintiff's share of these awards should be distributed by a QDRO cannot be accomplished, plaintiff has demonstrated exceptional circumstances justifying relief under subsection (f). Lawson Mardon Wheaton, Inc. v. Smith, 160 N.J. 383, 404-07 (1999). Therefore, we remand to the Family Part to enter an order that allows plaintiff to collect her share of the matured value of the three long-term compensation awards. If any of the awards have matured as plaintiff claims, defendant should be directed to either (1) cash out all or some of the awards and pay plaintiff her fifty percent share, or (2) continue deferring payment of the awards and pay plaintiff her fifty percent share from other assets.
II.
Family Part Post-Judgement Motion to
Enforce Litigant's Rights
Also on July 12, 2006, plaintiff filed a motion pursuant to Rule 1:10-3 to enforce litigant's rights, seeking to compel defendant to comply with certain provisions of the FJOD. In particular, plaintiff claimed that defendant was delinquent in his $4,600 monthly alimony payment by $1,300.04, which represented arrears incurred between February and May 2006. Plaintiff also claimed that defendant failed to provide proof of the value of his Massachusetts Mutual Life Insurance Policy, from which plaintiff was to receive half of the excess value of her own policy. Further, plaintiff maintained that she had not received her fifty percent share of the parties' combined checking account balances. Plaintiff sought an order directing defendant to turn over the funds to which she was entitled, directing that all future alimony payments be automatically deducted from defendant's checking account on the sixth day of each month, and directing that defendant be required to provide her with information regarding his current employer.
Defendant denied that he was in arrears, claimed that plaintiff was not entitled to her share of his short-term bonus until March 2007, and objected to plaintiff's demand for a statement of bonuses he received in prior years because he was in compliance with all of his court-ordered obligations. Defendant argued that any verification plaintiff sought as to the amount of any bonus could be verified by a court employee and that plaintiff owed him (1) $30,340.46 from the division of their savings and checking accounts, (2) the adjustment for the difference in the value of their vehicles, (3) the proceeds from whole life insurance policies, and (4) the proceeds resulting from the liquidation of the joint brokerage account. In addition, defendant contended that plaintiff owed him money for taking "almost all the furniture and other contents from the house upon her move."
The motion judge, who had also been the trial judge in the dissolution action, denied plaintiff's motion in its entirety. He ruled that the Probation Department's account for defendant showed he was current on his alimony obligations and that since defendant's employer was not a party to the litigation he could not order wage execution. He also found that the payments were currently being deducted from his paycheck by Probation. Further, the judge denied without prejudice that part of the motion seeking plaintiff's share of the balance contained in the parties' checking account. He noted that "[w]hile both parties agreed this provision of the Judgment of Divorce has not been effectuated, neither party provides sufficient documentation for the Court to determine what amount is due to which party." The judge also denied, without prejudice and without explanation, plaintiff's request to verify the cash value of defendant's life insurance policy.
Rule 1:10-3 creates a private right of action on the part of a litigant in any action to seek enforcement of his or her rights. A court may award relief under this rule where the court is satisfied that the conduct of the party against whom relief is sought has been willfully contumacious. See P.T. v. M.S., 325 N.J. Super 193, 206-08 (App. Div. 1999) (holding court erred in finding the defendant in contempt under this rule where the court did not make a finding that the defendant's failure to comply with court order was willful rather than the result of a legitimate financial inability to comply with the court's order).
Here, although the court's Automated Child Support Enforcement System (ACSES) reflected, as plaintiff claimed, a $1,300.04 shortfall in defendant's alimony payments, the court nonetheless concluded that defendant was current in his alimony obligations because the parties' Probation account reflected that defendant was current. The particular "Probation account" the court considered in reaching its determination is not described by the court in the statement of reasons accompanying the order. Thus, meaningful appellate review cannot be accomplished on this issue.
In addition, the court denied plaintiff's motion to have alimony payments deducted directly from defendant's bank account, stating that deductions were already being taken from defendant's paycheck by Probation. Defendant, however, in his certification in opposition to the motion, stated that because he had become an independent contractor, his alimony payments were not directly deducted from his paycheck. Rather, he was making payments directly to Probation. Therefore, the court was mistaken in its conclusion that automatic deductions were already occurring. Consequently, we vacate that portion of the order denying plaintiff's motion to enforce her rights to payment from defendant for outstanding arrears and to require all future spousal support payments to be made through Probation. We remand for further findings by the trial court. In view of this remand, we also remand for further proceedings related to plaintiff's request for verification of the cash value of defendant's life insurance policy because the court neglected to give any reasons for its decision on this issue. See R. 1:7-4.
In denying the remainder of plaintiff's motion, the court determined that the issue of plaintiff's entitlement to her share of the bonuses defendant received on or after February 23, 2005 had already been litigated as part of the equitable distribution trial. We agree.
The FJOD provides that
[u]pon the sale of the marital home the defendant shall pay $4,600.00 per month through the appropriate probation department plus twenty-five percent (25%) of any bonus received. This amount is based on the defendant's earnings of $143,499.96 with a bonus of $45,603.00 and the plaintiff's imputed earnings of $30,000.00 per year. This is in accord with the transcript from February 23, 2005.
The referenced transcript from the February 23 proceedings provides:
[PLAINTIFF'S COUNSEL]: Judge, this is one of the serious -- all issues are important, of course, but this was a real significant issue[]. We have resolved the alimony questions as follow[s.]
[Defendant], we find, for the year 2004, with bonus -- or had a salary of 143,499.96, with a bonus of about 45,603, a total of just over 189,000.
We recognize that and we've looked at all the figures here. We've come to the conclusion that my client will be able to make, it is our opinion, 30,000 a year -- as an income.
We then have resolved the matter, as follows. And that would be as this.
That when the house is sold -- and we're going to be discussing listing the house, immediately, for sale -- but when the house is sold, the defendant shall pay to my client, the plaintiff, the sum of $4,600.00 per month in alimony. He shall also pay the sum of 25 percent of any bonuses received, when they are received by him. So, her alimony number will be $4,600.00 a month, plus 25 percent of bonuses, should he be paid bonuses.
And, for the record, it is clear to me, even the numbers we've looked at, 2000 through today, 2004, bonuses were paid each year. But, they are -- there's no guarantee to those things, we understand that. So, that's how we've resolved it.
And I've discussed this with my client. I've discussed with her the right to go to trial on this issue and she, after a whole morning of intensive discussions and negotiations, has agreed to this.
So, that's the -- my understanding of the settlement on that issue.
THE COURT: [Defense counsel]?
[DEFENSE COUNSEL]: And that is my total understanding of the settlement.
THE COURT: All right. If I can -- [plaintiff], do you understand the agreement that was reached --
[PLAINTIFF]: Yes, I do.
THE COURT: -- as to alimony? Was this freely and voluntarily entered into by you?
[PLAINTIFF]: Yes, it was.
THE COURT: You weren't forced, threatened, or coerced to enter into this arrangement, were you?
[PLAINTIFF]: No.
THE COURT: Did [your attorney] answer whatever questions you might have?
[PLAINTIFF]: Yes, He did.
THE COURT: Are you satisfied with his legal representation?
[PLAINTIFF]: Yes, I am.
THE COURT: Now, you understand there are other issues in this case?
[PLAINTIFF]: Yes, I do.
THE COURT: Equitable distribution, obviously, being a significant item, and there may be others as well, but do you agree that even if there is no agreement on the other issues, that you agree to be bound to the agreement that was set forth, as it relates to support for you?
[PLAINTIFF]: Yes.
THE COURT: Hopefully, you can reach an agreement on everything else, but, at least at this point, you agree to be bound by the alimony, is that correct?
[PLAINTIFF]: That's correct.
THE COURT: And you understand that you can't come back later and say, you know what, I'm not happy with this, I want to change it. No matter what happens, this is the agreement as to alimony. You understand that?
[PLAINTIFF]: I do.
THE COURT: [Plaintiff's counsel], do you have any questions for your client?
[PLAINTIFF'S COUNSEL]: Just one. Do you understand that we're here for trial today, you understand that?
[PLAINTIFF]: I do.
[PLAINTIFF'S COUNSEL]: And, but for the fact that you resolved this issue -- I know that there are other issues to be resolved -- but you would have the right to trial and Judge Rubin would call the issue, and he would either go better, worse, and -- who knows. He could -- you have no idea what the Judge would have done, do you understand that?
[PLAINTIFF]: I do.
[PLAINTIFF'S COUNSEL]: And you're still willing to resolve this?
[PLAINTIFF]: Right.
Finally, the court denied, without prejudice, plaintiff's request that the court compel defendant to divide the parties' checking accounts and life insurance policies. The court noted that "[w]hile both parties agreed this provision of the Judgment of Divorce has not been effectuated, neither party provides sufficient documentation for the Court to determine what amount is due to which party."
In the absence of evidence of an abuse of discretion, we defer to the factual determinations of trial judges, particularly those of Family Part judges, who have special expertise in the matters of the family. Cesare v. Cesare, 154 N.J. 394, 412 (1998). This is especially true here where the motion judge was also the trial judge before whom both the pre-trial and trial proceedings took place. In summary, other than the question of defendant's alimony arrearages and the absence of stated reasons for denying plaintiff's insurance verification request, nothing in the record supports the conclusion that the court abused its discretion in denying the motion to enforce litigant's rights.
III.
The Law Division Summary Judgment Motion
Defendant moved for partial summary judgment on six of the ten counts of plaintiff's Law Division complaint, arguing that many of plaintiff's allegations had been addressed in the Family Part action and plaintiff was therefore precluded from re-litigating these issues in the Law Division action. The court granted the motion as to gross negligence (Count Eight), breach of marriage contract (Count IX), and unjust enrichment claims (Count X), concluding that these claims were not contemplated in the severance order transferring the matter to the Law Division. Moreover, as to the gross negligence claim, the court stated, "the Final Judgment of Divorce deals in detail with the Plaintiff and Defendant's joint knowledge of the marital assets and joint responsibility for stock purchases and subsequent stock performance."
The court next determined that no reasonable trier-of-fact, giving plaintiff the benefit of every favorable inference, could conclude that defendant's withdrawal of 401(K) funds to finance his children's education rises to the level of gross negligence. As to the breach of contract and unjust enrichment claims, the court similarly found that these were not claims contemplated by the Family Part judge's severance and transfer order and, based upon the merits of these claims, plaintiff failed "to state an adequate claim upon which relief might be granted for Breach of Contract or Unjust Enrichment," thereby justifying summary judgment in favor of defendant on those counts.
Noting that discovery was still ongoing the court denied the motion, without prejudice, as to plaintiff's claims of financial abuse (Count Five), fraud and misrepresentation (Count Six), and NIED (Count Seven). Finally, as to these remaining claims, the court ruled that plaintiff would be precluded from re-litigating issues about which the Family Part judge had made findings of fact and conclusions of law.
When defendant renewed his summary judgment motion during a pre-trial conference, the trial judge questioned plaintiff as to whether there were any issues that had not already been litigated in the Family Part action related to plaintiff's claims of financial abuse, fraud and misrepresentation. Plaintiff attempted, somewhat inarticulately, to point out the issues that were not decided by the Family Part judge. She further argued that she didn't actually litigate any of the issues because of the order to sever. Plaintiff urged the judge to look at the divorce trial transcripts. The trial judge rejected plaintiff's arguments and granted defendant's motion as to the financial abuse, fraud and misrepresentation claims, stating:
There is no specification of issues here that are not covered by . . . Paragraphs Four and Five of [the Family Part judge's] ruling as already having been litigated []. [The] Court recognizes that the transfer order, the severing order came before the complaint was amended, but it appears that financial abuse, fraud, Counts Five and Six were part of what was at one point received. However, it does appear from [the Family Part judge's] order of February twenty-eighth he made findings that essentially the claims that are set forth in five and six were covered pending anything additional being produced during discovery. There has been nothing further during discovery.
However, the judge reserved decision on plaintiff's NIED claim, which he viewed as a potential IIED claim.
At trial, following the presentation of plaintiff's case in chief, the judge determined that there was no claim for NIED because "the alleged activity and even refusal as alleged, to listen to the plaintiff, with respect to selling stock does not appear to violate any duty . . . the defendant had with respect to the plaintiff" and because "the Court also has not been presented evidence of severe distress -- any indication that there was any particular distress other than anger." The judge further determined that there was no claim for IIED because the improper financial activity was not so "outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community."
Although, as an appellate court we review the grant or denial of a summary judgment motion de novo, in doing so we employ the same standard of review as the trial court in determining whether summary judgment was properly granted. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). In that regard, summary judgment is appropriate if there is "no genuine issue as to as to any material fact challenged and . . . the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). The court must consider "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact-finder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 540 (1995).
Here, there is no dispute that the Family Part judge severed plaintiff's claims for domestic tort relief and then made certain findings regarding those claims in rendering his decision as to equitable distribution. In ruling that plaintiff could not re-litigate issues that were the subject of findings of fact and conclusions of law in the Family Part, the Law Division judge essentially invoked the doctrine of collateral estoppel.
The doctrine of collateral estoppel, or issue preclusion, is a branch of the broader law of res judicata that bars re-litigation of any issue actually determined in a prior action between the same parties involving a different claim or cause of action. Sacharow v. Sacharow, 177 N.J. 62, 75-76 (2003). In order to foreclose re-litigation of an issue, the party asserting the bar must demonstrate:
(1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.
[First Union Nat'l Bank v. Penn Salem Marina, Inc., 190 N.J. 342, 352 (2007) (quoting Hennessey v. Winslow Twp., 183 N.J. 593, 599 (2005)).]
It is also essential that the party against whom collateral estoppel is being asserted had a "full and fair opportunity" to litigate the issue in the prior action. Sacharow, supra, 177 N.J. at 77; Habick v. Liberty Mut. Fire Ins. Co., 320 N.J. Super. 244, 257 (App. Div. 1999).
Application of collateral estoppel is appropriate where there has been a careful assessment and consideration of all relevant factors both in support of and against its application. Selective Ins. Co. v. McAllister, 327 N.J. Super. 168, 174 (App. Div.), certif. denied, 164 N.J. 188 (2000). The Court in Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 523 (2006), reviewed the factors that courts consider before applying the doctrine to a particular cause of action. Those factors include: "conservation of judicial resources; avoidance of repetitious litigation; and prevention of waste, harassment, uncertainty and inconsistency." Ibid. Among the factors disfavoring its application are whether the party against whom preclusion is sought could not have obtained review of the prior judgment; whether the quality or extent of the procedures in the two actions is different; whether, during the prior action it was foreseeable the disputed issue would surface in subsequent litigation; and whether the party against whom the doctrine is raised was afforded an appropriate opportunity to obtain full and fair adjudication of the issue in the prior proceeding. Ibid. (quoting Pace v. Kuchinsky, 347 N.J. Super. 202, 216 (App. Div. 2002)).
Here, plaintiff's domestic tort claims in the Law Division were based on the following acts of defendant: (1) use of margin debt to fund high-risk stock purchases, (2) transfer of marital assets to India, (3) withdrawal of 401(K) funds to pay daughter's college expenses, (4) purchase of high-risk tech stocks, (5) refusal to cash out fully funded UTMA accounts, (6) diversion of salary to a bank account in North Carolina, (7) removal of plaintiff as beneficiary on IRA accounts, (8) cancellation of joint credit cards, (9) threats to discontinue plaintiff's medical and dental coverage, and (10) purchase of $80,000 worth of Indian bonds. Although the Family Part judge severed plaintiff's tort claims and transferred them to the Law Division, he made specific factual findings with respect to some of these issues when deciding equitable distribution:
Number (i), the contribution of each party to the acquisition, dissipation, preservation, depreciation, or appreciation in the amount or value of marital properties as well as a contribution of the party as a homemaker. . . .
As to fluctuations in the value of the parties' portfolio, I don't find fraud or dishonesty as alleged by the plaintiff. I find that the plaintiff was aware of financial transactions, and as such, she should share equally in increases and equally in the losses in the value due to market performance of these assets. As to the losses relating to the [U]TMA accounts, it was the plaintiff who was custodian of these accounts. She had legal title. She kept the records. Not only of these, but kept other financial records in the marital home which she occupied. I find no basis to hold the defendant solely accountable for the decreases in the values of these assets which are intended for the benefit of the children.
I do find that the defendant, based on his own testimony, did divert between 70 and 100 thousand dollars of marital assets to his family members in India beginning in the 1980s. The defendant testified these payments of funds [are] a custom that is found in India. It's cultural, and it's, as he said, a precondition of the marriage. I find that while plaintiff was aware of these transactions, that she was not in agreement with these transactions. She testified that she really never consented to these payments. No writings or other proof produced evidence of the plaintiff's consent or agreement.
The fact that the defendant on his own mentioned these transactions serves to negate any fraud or dishonesty on his part. He was candid and credible. I believe him as to the amount that somewhere between 70 and 100 thousand dollars were paid. I will use a midpoint, or $85,000. Forty-two thousand 500 dollars I'm crediting to the plaintiff and will be paid from the defendant's share of the sale of the marital property. . . .
. . . .
As to the division, the balance of assets, I find that they should be on a 50/50 basis. The defendant urges this allocation. The plaintiff, when questioned about reducing her own savings from 44,000 to 29,767.71 to the Court, contrary to my order dated July 9th, 2004, tried to justify a withdrawal by saying that there remained in the account enough to [pay] plaintiff his half share. That's an indication to me how she feels about distribution. Her request for a sum greater than 50 percent in my judgment cannot be justified.
First, she can't prove fraud or [dishonesty]. Secondly, the defendant throughout the marriage essentially was a sole provider, and he provided the wherewithal for the parties to accumulate assets. I, of course, understand plaintiff's contribution as homemaker, and I recognize its importance, but this marriage -- this partnership, in my judgment, cannot justify the plaintiff receiving more than 50 percent.
Thus, the Family Part trial judge made certain findings with respect to the parties' margin debt, the transfer of funds to India, the high-risk stock purchases, and the UTMA accounts. However, the judge did not make any findings with respect to defendant's withdrawal of 401(K) funds, diversion of salary to a bank account in North Carolina, removal of plaintiff as beneficiary on IRA accounts, cancellation of joint credit cards, threats to discontinue plaintiff's medical and dental coverage, and the purchase of $80,000 worth of Indian bonds. Consequently, most of the issues precluded in the Law Division were not identical to the issues actually decided by the Family Part judge in the equitable distribution trial.
Moreover, while the Family Part judge's decision reflects the court's findings on the parties' margin debt, the transfer of funds to India, the high-risk stock purchases, and the UTMA accounts, plaintiff did not raise these issues during her direct testimony. She argued financial dishonesty, but her arguments appeared to have more to do with defendant's alleged refusal to disclose certain marital assets. For example, plaintiff maintained that defendant had misrepresented his income on a CIS and that he had not produced a copy of a Fidelity checkbook register. In other words, she only mentioned the transfer of funds to India in passing, and it appears from the transcript that she thought she would be litigating that issue in the Law Division. Plaintiff also argued that she should not be held responsible for the margin debt, but that was only in response to the judge's questioning regarding the distribution of liabilities.
On the other hand, it was defendant who first presented testimony regarding plaintiff's familiarity with the parties' finances, the UTMA accounts, and the transfer of funds to India. Plaintiff was given the opportunity to respond to these allegations, but we question whether that opportunity was adequate or whether plaintiff fully understood that it was appropriate, on redirect, to respond to defendant's contentions, in light of plaintiff's reliance upon the severance order.
It is also unclear from the appellate record whether the two Law Division judges, one of whom addressed pre-trial issues, and the other who addressed both pre-trial and trial issues, had access to the divorce trial transcripts, even though plaintiff implored them to read it. Because the trial transcripts from those proceedings have not been fully provided, meaningful appellate review has been hampered.
"The party asserting issue preclusion bears the burden of showing with clarity and certainty what was determined by the prior judgment." Gruntal & Co. v. Steinberg, 854 F. Supp. 324, 337 (D.N.J. 1994). That burden is met, not by producing the decision of the prior court, but by introducing a sufficient record of the prior proceeding to enable the trial court to pinpoint the exact issues previously litigated. See State v. Ebron, 61 N.J. 207, 216 (1972) (holding that the party claiming the estoppel has the burden of proof and therefore must produce so much of the record of the first proceedings as is necessary to show that an issue was necessarily determined). That was not done here. Consequently, the Law Division judges improperly dismissed plaintiff's claims for financial abuse, fraud and misrepresentation, and gross negligence on the grounds of issue preclusion.
We nonetheless conclude that the improper dismissal of those claims based upon issue preclusion does not warrant a reversal and remand to the Law Division for trial on those claims. We are persuaded that when the allegations are viewed most favorably towards plaintiff, she has failed to state a cognizable claim for relief on those causes of actions.
Plaintiff points to no decisional law in New Jersey that recognizes a cause of action for damages arising out of a claim for a spouse's alleged control over and mismanagement of marital assets, which is essentially what plaintiff alleges in her complaint. See, e.g., Susan Reach Winters & Thomas D. Baldwin, 12 New Jersey Practice, Family Law and Practice 49 (1999); Gary N. Skoloff & Laurence J. Cutler, New Jersey Family Law Practice 1.4B(3) (12th ed. 2006). Rather, such issues are more appropriately addressed in the context of equitable distribution. See N.J.S.A. 2A:34-23.1 (citing as a factor in deciding equitable distribution the contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property). (emphasis added). Plaintiff testified in the Family Part matter as to defendant's "financial dishonesty," his failure to disclose other assets, and his misstatements of income on the CISes. Thus, dismissal of the claims was proper. See Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968) ("[I]t is a commonplace of appellate review that if the order of the lower tribunal is valid, the fact that it was predicated upon an incorrect basis will not stand in the way of its affirmance").
Next, plaintiff's claims for NIED or IIED were properly dismissed because plaintiff failed to establish a prima facie case demonstrating the requisite conduct upon which liability may be premised for those claims or the level of harm necessary to recover damages. See Buckley v. Trenton Savs. Fund Soc'y, 111 N.J. 355, 366 (1988) (finding that a cause of action for IIED may lie if the plaintiff can prove that (1) the defendant acted intentionally or recklessly, (2) that the defendant's conduct was extreme and outrageous, (3) the defendant's actions were the proximate cause of plaintiff's emotional distress, and (4) the emotional distress suffered by the plaintiff was so severe that no reasonable person could be expected to endure it). Jablonowska v. Suther, 195 N.J. 91, 104 (2008) (holding that a cause of action for NIED may lie if four elements are proven: (1) the death or serious physical injury of another caused by defendant's negligence, (2) a marital or intimate familiar relationship between plaintiff and the injured person, (3) observation of the death or injury at the scene of the accident, and (4) resulting severe emotional distress).
Plaintiff's remaining arguments on appeal relating to the denial of her request to further extend discovery and recusal of the motion judge, namely, the rulings that (1) permitted defendant to assert self-defense, (2) excluded evidence of defendant's cultural values, and (3) denied her motion for a new trial, are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(C) and (E). We add the following comments with respect to the discovery application and new trial motion.
At the time plaintiff sought a further extension of discovery, the trial date in the Law Division action had already been set. Consequently, in order to obtain a further extension plaintiff was required to demonstrate exceptional circumstances for relief. R. 4:24-1(c). Despite plaintiff's claims that defendant failed to cooperate with her discovery demands, the motion judge found significant that plaintiff never filed any motions to compel discovery. Plaintiff argues on appeal that she should not be held responsible for her attorney's failure to file such motions. However, mere attorney negligence does not constitute exceptional circumstances for a further extension. See O'Donnell v. Ahmad, 363 N.J. Super. 44, 51-52 (App. Div. 2003). Moreover, plaintiff offers no reason why she did not seek to compel discovery during the times she was not represented by counsel and proceeding pro se. See Bender v. Adelson, 187 N.J. 411, 429 (2006).
Our review of the court's disposition of discovery motions is under an abuse of discretion standard. State v. Burr, 195 N.J. 119, 127 (2008) (citing State v. Jenewicz, 193 N.J. 440, 456 (2008) (applying abuse of discretion standard of review to trial court's findings.) Nothing in the record demonstrates that the motion judge abused his discretion in denying plaintiff a further extension.
In denying plaintiff's motion for a new trial, the trial judge rejected plaintiff's arguments that the jury's no cause verdict on the assault claims was inconsistent with the jury's initial finding that defendant assaulted her. The trial judge stated:
Essentially, plaintiff argues that the jury finding of self-defense was inconsistent with the jury's finding that the defendant had assaulted plaintiff. In fact, there was no such inconsistency. The defendant husband had testified, in a passage of the trial that was read back to the jury, that plaintiff assaulted him with a pen and that he did grab her, but only to ward off the attack on himself. This testimony clearly justified taking the issue of self-defense to the jury. It is thus consistent with the testimony for the jury to have found that indeed [defendant] had touched the plaintiff in an unconsented fashion, but that he had done so only in self-defense. There is nothing inconsistent or inadequate about the verdict. . . .
Nor does the jury finding based on this testimony constitute a miscarriage of justice. There was a credibility issue as to the circumstances of the August assault. The husband's testimony was clear and consistent as to what occurred in August. He also denied the other three alleged assaults with sufficient detail as to where he was and what he was doing at the time. Under these circumstances the jury could clearly find his the more credible version of the two descriptions of the August events, and the October and two December events. To the extent that the children's testimony is relevant on this issue, their characterization of [defendant] as the more passive of their two parents supports the jury's evident acceptance of his credibility. Since the credibility issue was clearly one for the jury, it had the right under the circumstances of this trial to find that there was self-defense by [defendant] in August and no assaults by him later.
Nor for Point 4 is there anything confusing about the jury charge. There was contest as to whether any of the three remaining alleged assaults occurred. The Court clearly told the jury that it had to find self-defense in order to exculpate [defendant] with respect to any of the assaults the jury had found to have occurred. On the facts, it was clearly open to the jury to find that there was no unconsented touching on any date except the one in August and that one occurred in self-defense. The instructions sufficiently advised the jury of how to proceed on the self-defense claim.
The judge also rejected the remainder of plaintiff's arguments, stating:
The remaining items raised in a perfunctory fashion essentially amount to a request for reconsideration. The Court gave ample prior opportunity for the plaintiff to address each of the issues raised in items 5 through 23. Nothing new has been presented. Thus, under D'Atria v. D'Atria, 242 N.J. Super. 392 (App. Div. 199[9]) and R. 4:49-2 there is no basis for reconsideration of this Court's prior decisions. For each and every one of these items, the evidentiary rulings during the trial, and the responses to [plaintiff's] request for still another adjournment and extension of discovery, and the elimination of certain of the reserved claims was sufficiently explained when the Court initially dealt with them. Plaintiff's very brief repetition of what was dealt with at length earlier warrants no further discussion. She is simply attempting to re[-]litigate matters already decided without providing any of the necessary justification for reconsideration. Her remedy if any is by appeal.
We will not disturb a trial judge's denial of a motion for a new trial pursuant to Rule 4:49-1 unless there is a clear showing of a miscarriage of justice. R. 2:10-1; Carrino v. Novotny, 78 N.J. 355, 360 (1979); Okulicz v. Degraaff, 361 N.J. Super. 320, 329 (App. Div. 2003). Although we independently review the record we defer to the trial judge's findings based on things such as witness credibility and his or her own "feel of the case." Dolson v. Anastasia, 55 N.J. 2, 7 (1969); Borngesser v. Jersey Shore Med. Ctr., 340 N.J. Super. 369, 377-78 (App. Div. 2001). Our careful review of the trial record offers no basis for us to disturb the jury's verdict.
To summarize, we reverse that part of the July 26, 2006 order denying plaintiff's motion for relief from judgment related to defendant's long-term incentive compensation awards and those portions of the August 14, 2006 order denying plaintiff's motion to enforce litigant's rights concerning alimony arrears and denying plaintiff's request for verification of the cash value of defendant's life insurance. We remand for further proceedings on these three issues consistent with this opinion. Further, upon remand, we direct that the FJOD be amended to reflect extreme cruelty as the grounds for divorce. We otherwise affirm the February 28, July 26, May 10 and August 25 orders in all respects.
Affirmed in part, modified in part and reversed and remanded in part with direction and for further proceedings. We do not retain jurisdiction.
"Margin debt" is defined as: "1. The dollar value of securities purchased on margin within an account. Margin debt carries an interest rate, and the amount of margin debt will change daily as the value of the underlying securities changes. 2. The aggregate value of all margin debt in a nation or across an exchange." Available at: http://www.investopedia.com/terms/m/margin_debt.asp (October 6, 2008).
Tevis v. Tevis, 79 N.J. 422 (1979).
It appears that the judge relied on a balance sheet provided by plaintiff at trial, which was marked as P-1 and later admitted into evidence. A corrected balance sheet was admitted as P-2. Plaintiff has provided a copy of the corrected balance sheet in her appendix.
Consolidated Omnibus Budget Reconciliation Act, 29 U.S.C.A. 1161 to -1169.
Subsequent to the filing of the Notice of Appeal, the Family Part judge who presided over the Rule 4:50 motion, in response to an inquiry from the Appellate Division, submitted a letter explaining that the Family Automated Case Tracking System (FACTS) reflects a filing date of June 12, 2006. The judge indicated that he relied upon the FACTS date in denying the motion. However, the "Central Fee Office Payment Receipt" indicates that plaintiff paid the filing fee on June 9, 2006 at 3:32 p.m.
In response to the judge's questions regarding the relevancy of the Fidelity checkbooks, plaintiff stated, "I can't put that on here because of the other, you know, case."
(continued)
(continued)
63
A-0242-06T3
October 22, 2008
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