S.D. v. M.J.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

S.D.,

Plaintiff-Respondent,

v.

M.J.R.,

Defendant-Appellant.

____________________________________________________

January 28, 2014

Submitted November 13, 2013 Decided

Before Judges Messano and Hayden.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-1792-09.

Lora B. Glick, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

This matter was before us previously, resulting in a published opinion in which we reversed the Family Part's dismissal of the domestic violence complaint filed by plaintiff S.D. and ordered a final restraining order (FRO) be issued against defendant M.J.R. S.D. v. M.J.R., 415 N.J. Super. 417, 442 (App. Div. 2010). Parallel criminal proceedings were ongoing at the time of our decision, and defendant was ultimately indicted, tried and convicted of certain sexual crimes that were some of the predicate acts of domestic violence alleged in plaintiff's complaint.

Within months of our decision, on November 29, 2010, defendant filed a pro se motion to vacate the FRO pursuant to Rule 4:50-1(b).1 He claimed newly discovered evidence that only became available during his criminal trial refuted plaintiff's allegations.

Subsequently represented by counsel, defendant's motion was heard on November 29, 2011, before a judge other than the one who presided at the domestic violence trial.2 Defense counsel argued that during the criminal trial, which took place after the domestic violence trial, certain "medical report[s]" were provided to defendant. Counsel argued these reports "were in possession of either plaintiff or her counsel," not furnished during the domestic violence trial and "constitute[d] newly discovered evidence." Counsel claimed the reports were "exculpatory in nature."

In colloquy with defense counsel, the judge noted testimony at the domestic violence trial clearly indicated that plaintiff was taken to Christ Hospital by police for treatment in November 2008, and was again seen in January 2009. She asked if defense counsel in the domestic violence trial "subpoena[ed] Christ Hospital." Counsel responded, "No. They did not." Defense counsel also argued that, because defendant and plaintiff were now divorced, she lived out-of-state and he intended to return to his native country of Morocco, the FRO was no longer necessary.

Plaintiff's counsel indicated that the FRO was still necessary because her client feared defendant. She also noted that at the time of the domestic violence trial, plaintiff did not have the so-called "exculpatory" medical reports. More importantly, she argued the reports were of little import, since despite their availability at the criminal trial, defendant was nevertheless convicted.3

Addressing defendant's argument that the FRO should be vacated based upon newly-discovered evidence, the judge noted that the domestic violence proceedings in the case were ongoing from January to June 2009, and it was "no secret that [plaintiff] had been in Christ Hospital in November, and . . . had looked for additional medical treatment in January." That information was "[r]ight within the testimony that took place in April [2009]."4 The judge concluded that had the information been subpoenaed, all of plaintiff's treatment at the hospital would have been revealed, or alternatively, the issue could have been decided by the domestic violence trial judge. Accordingly, she found no grounds to vacate the FRO pursuant to Rule 4:50-1.

The judge then extensively considered the factors set forth in Carfagno v. Carfagno, 288 N.J. Super. 424, 435-42 (Ch. Div. 1995), before concluding the FRO would "remain in full force and effect, and . . . w[ould] not be dismissed." The judge entered an order synopsizing her reasons for denying the motion.

After court hours on December 19, 2011, defendant personally faxed a "letter in lieu of a more formal brief" directly to the judge. The copy in the appellate record is stamped "Filed" by the judge on December 20. The record also includes a pro se motion for reconsideration, dated December 19, that does not bear any stamp.

In his letter brief, defendant argued that the judge had failed to address the facts contained in the newly-discovered evidence, specifically the "SANE nurse reports [of] November 22[] 2008," and the reports of "Christ Hospital visits" made by plaintiff "in January 2009." On January 31, 2012, defendant forwarded another pro se letter brief and a copy of the transcript of the November 29, 2011 proceedings to the judge. The appellate record does not contain the brief.

In an order dated March 29, 2012, the judge noted that defendant's motion was not actually filed with the court until February 9, 2012, since the earlier submission "sent to Chambers was incomplete and did not contain the extensive brief" subsequently filed. The judge concluded defendant failed to comply with Rule 4:49-2, which requires "a motion for . . . reconsideration . . . [to] be served not later than 20 days after service of the judgment or order upon all parties." She denied defendant's motion for reconsideration, and this appeal followed.

Defendant argues that the judge mistakenly exercised her discretion by denying his motion for reconsideration as untimely, and had the judge considered the motion on its merits, the FRO should have been vacated 1) based upon proper consideration of the Carfagno factors; and 2) pursuant to Rule 4:50-1 (b) and (c). We have considered the arguments based on the record and applicable legal standards. We affirm.

We need not extensively address whether the judge mistakenly concluded the motion for reconsideration was untimely. See, e.g., Eastampton Center, LLC v. Planning Bd. of Tp. of Eastampton, 354 N.J. Super. 171, 187 (2002) (noting that a motion for reconsideration that lacked "all of the required supporting materials" may nonetheless be considered as timely). Assuming arguendo that the motion was timely, it lacked any merit.

Motions for reconsideration are addressed to "'the sound discretion of the [c]ourt, to be exercised in the interest of justice.'" Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). Reconsideration is to be utilized narrowly, and reserved for situations where the court relied "'on plainly incorrect reasoning[,]'" where the court failed to consider probative, competent evidence, or where "'there is good reason for [the court] to reconsider new'" evidence. Town of Phillipsburg v. Block 1508, Lot 12, 380 N.J. Super. 159, 175 (App. Div. 2005) (emphasis omitted) (quoting Pressler, Current N.J. Court Rules, Comment 2 on R. 4:49-2 (2005)); and see Fusco v. Board of Ed., 349 N.J. Super. 455, 462 (App. Div.) (noting "'[r]econsideration should be used only for those cases which fall into that narrow corridor'" where "'the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or . . . the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence'") (quoting D'Atria, supra, 242 N.J. Super. at 401), certif. denied, 174 N.J. 544 (2002).

Defendant contends the judge erred in failing to reconsider dissolution of the FRO pursuant to Carfagno, supra, because she made factual findings at the initial hearing that were unsupported by the record, for example, whether plaintiff consented to dissolution of the FRO or remained in fear of defendant. We disagree.

Pursuant to N.J.S.A. 2C:25-29d, the court may dissolve a final restraining order "[u]pon good cause shown." In Carfagno, the Chancery Division set forth eleven factors that should be considered.5 We have subsequently expressed our agreement with Carfagno's analytic paradigm, while also noting that "[t]he linchpin in any motion addressed to dismissal of a final restraining order should be whether there have been substantial changed circumstances since its entry that constitute good cause for consideration of dismissal." Kanaszka v. Kunen, 313 N.J. Super. 600, 607, 609 (App. Div. 1998). "[T]he moving party has the burden to make a prima facie showing good cause exists for dissolution of the restraining order prior to the judge fully considering the application for dismissal." Id. at 608 (emphasis added).

Applying these standards, we fully agree with the judge that defendant failed to establish good cause to dissolve the FRO. Although plaintiff did not appear at the hearing and apparently did not file a certification in opposition, her attorney represented that she opposed the motion, something implicit in the arguments counsel advanced. As for plaintiff's continued fear of defendant, counsel noted the serious nature of the acts of domestic violence against plaintiff which we acknowledged in our prior opinion, see S.D., supra, 415 N.J. Super. at 422-23 (detailing plaintiff's allegations and subsequent police investigation), and that she moved out-of-state, something defendant inexplicably already knew.

In short, the judge carefully considered all the Carfagno factors and adequately explained her reasoning as to each. We find no reason to reverse her decision.

Defendant also claims that the November 2008 and January 2009 medical reports obtained through criminal discovery "could not [have been] obtained via a subpoena" in the domestic violence case. He argues the reports would have adversely affected plaintiff's credibility during the domestic violence trial. As a result, he argues the judge erred in not dissolving the FRO pursuant to Rule 4:50-1(b) and (c). We again disagree.

Rule 4:50-1 provides:

On motion, with briefs, and upon such terms as are just, the court may relieve a party . . . from a final judgment . . . for the following reasons:

. . . .

(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 . . . , misrepresentation, or other misconduct of an adverse party . . . .

Although defendant has included subparagraph (c) in his point heading, there is no substantive argument made in the brief that plaintiff engaged in fraud, misrepresentation or misconduct during the domestic violence trial. We therefore deem any argument as to subsection (c) to have been waived. Finderne Heights Condominium Ass'n v. Rabinowitz, 390 N.J. Super. 154, 166 (App. Div. 2007). Moreover, the record fails to disclose any colorable claim that could have been made under subsection (c).

"To obtain relief from a judgment based on newly discovered evidence, the party seeking relief must demonstrate that the evidence would probably have changed the result, that it was unobtainable by the exercise of due diligence for use at the trial, and that the evidence was not merely cumulative." DEG, LLC v. Township of Fairfield, 198 N.J. 242, 264 (2009) (citation omitted). "All three requirements must be met." Ibid. Further, "'newly discovered evidence does not include an attempt to remedy a belated realization of the inaccuracy of an adversary's proofs." Ibid. (quoting Posta v. Chung-Loy, 306 N.J. Super. 182, 206 (App. Div. 1997), certif. denied, 154 N.J. 609 (1998)).

As noted, the judge clearly focused on defendant's ability to have obtained the medical reports by subpoena during the protracted domestic violence trial; alternatively, she found that defendant could have sought relief from the judge during the proceedings if there was an objection from plaintiff or the hospital. However, defendant contends before us that he was unaware of these particular reports, authored by a Sexual Assault Nurse Examiner (SANE) as part of the criminal prosecution, until the nurse actually testified during the criminal trial. We find no support for this argument in the record because nothing in the transcript of the testimony of the SANE nurse at the criminal trial demonstrates that defendant's criminal trial counsel was unaware of the reports.

Additionally, defendant argues that testimony at the domestic violence trial did not alert him to the possibility either SANE report existed. He notes that one of the investigating detectives from the prosecutor's office sexual assault unit specifically testified that plaintiff did not want to pursue a sexual assault charge in November 2008, thereby leading him to believe no SANE report was ever prepared then. And, plaintiff never testified at the domestic violence trial about an examination conducted at the hospital in January 2009.

We need not focus on whether the two SANE reports could have been obtained through the exercise of due diligence at the time of the domestic violence trial. It is clear to us that defendant has failed to meet the standards necessary for relief under subsection (b).

Defendant concedes that the two reports, at best, could have only impeached some of plaintiff's testimony at the domestic violence trial. For example, at that trial, plaintiff testified defendant forced her to have non-consensual sex on November 22, 2008, but the November SANE report of the same date includes plaintiff's account given to the SANE nurse that defendant "sometimes force[d] [her] to have sex[,] but not today[,] but it did happen on Thursday."6 Plaintiff also testified about non-consensual sex forced upon her by defendant on various days in January 2009. Defendant argues the January SANE report "reveals no evidence of prior sexual activity whatsoever." However, the report, which is in the record, includes notations that plaintiff's labia was swollen, albeit possibly from a urinary tract infection, and she had complaints of pain in her vagina and abdomen.

As already noted, to succeed under subsection (b), the movant must demonstrate that the newly-discovered evidence would have "probably . . . changed the result" of the trial "and that the evidence was not merely cumulative." DEG, supra, 198 N.J. at 264. As to this latter criteria, we explained in a case cited with approval by the DEG Court, that "the new evidence must . . . be material to the issue and not merely cumulative nor impeaching nor contradictory[.]" State v. Speare, 86 N.J. Super. 565, 581-82 (App. Div.) (emphasis added), certif. denied, 45 N.J. 589 (1965); and see McDonald v. Estate of Mavety, 383 N.J. Super. 347, 363 (App. Div. 2006) (same), overruled on other grounds, Devaney v. L'Esperance, 195 N.J. 247 (2008).

Here, the evidence cited by defendant may have contradicted plaintiff's version of events, but only in marginal fashion. Its limited impeachment value certainly would not have likely changed the result of the domestic violence trial, in which the judge concluded that defendant committed numerous predicate acts of domestic violence against plaintiff. See S.D., supra, 415 N.J. Super. at 427-28. Defendant's motion seeking relief under Rule 4:50-1 was properly denied.

1 The appellate record does not include the FRO that was issued following our decision.

2 It appears that defendant remained incarcerated during all times relevant to this appeal.

3 Defense counsel noted that the criminal conviction was under appeal at the time.

4 Defendant kept interrupting the judge, insisting the testimony at the domestic violence trial did not mention plaintiff's January 2009 visit to the hospital.

5 The Carfagno factors are:

(1) whether the victim consented to lift the restraining order; (2) whether the victim fears the defendant; (3) the nature of the relationship between the parties today; (4) the number of times that the defendant has been convicted of contempt for violating the order; (5) whether the defendant has a continuing involvement with drug or alcohol abuse; (6) whether the defendant has been involved in other violent acts with other persons; (7) whether the defendant has engaged in counseling; (8) the age and health of the [9] defendant; (9) whether the victim is acting in good faith when opposing the defendant's request; (10) whether [757] another jurisdiction has entered a restraining order protecting the victim from the defendant; and (11) other factors deemed relevant by the court.

[Carfagno, supra, 288 N.J. Super. at 435.]

6 November 22, 2008 was a Saturday.