KEVIN D. KELLY v. DEBORAH E. KELLY
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1529-20
KEVIN D. KELLY,
Plaintiff-Appellant,
v.
DEBORAH E. KELLY,
Defendant-Respondent.
________________________
Argued April 6, 2022 – Decided April 21, 2022
Before Judges Firko and Petrillo.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Warren County,
Docket No. FM-21-0163-19.
Kevin D. Kelly, appellant, argued the cause pro se.
Deborah E. Kelly, respondent, argued the cause pro se.
PER CURIAM
In this post-judgment matrimonial matter, plaintiff Kevin D. Kelly, an
attorney who is self-represented, appeals from a January 20, 2021 Family Part
order entered by Judge Robert A. Ballard. Judge Ballard denied plaintiff's
motion seeking relief from orders entered on October 15, 2018 and March 27,
2020, pursuant to Rules 4:50-1(f) and 1:1-2. The October 15, 2018 order,
entered by Judge Haekyoung Suh, compelled plaintiff to satisfy his support
obligations as set forth in the parties' final judgment of divorce confirming
arbitration award (FJOD) and placed him on a single missed payment bench
warrant status. On March 27, 2020, Judge Suh entered an order compelling
plaintiff to reimburse defendant Deborah E. Kelly relative to a judgment levied
against her bank account due to his failure to make payments related to their
former joint marital Newton Commons Townhouse (Townhouse). On April 20,
2020, plaintiff filed a motion to stay the March 27, 2020 order and to vacate the
bench warrant provisions contained in the October 15, 2018 and March 27, 2020
orders, which Judge Suh denied on May 22, 2020. For the reasons that follow,
we affirm.
I.
The parties are familiar with the procedural history and facts of this case,
and therefore, they will not be repeated in detail here. 1 We briefly summarize
1
The initial chronology is set forth in this court's unpublished opinion entered
on October 17, 2016, in which we affirmed the Family Part's order enforcing the
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2
the facts pertinent to this appeal from the record. The parties were married in
1987 and have five children who are now emancipated. In 2010, plaintiff filed
a complaint for divorce. The parties consented to binding arbitration to resolve
their outstanding issues. On October 7, 2015, the arbitrator rendered a final
decision and award, which ultimately was incorporated into the FJOD on
October 27, 2017. 2 Plaintiff was ordered to pay defendant limited duration
alimony of $3,000 per month plus $400 per month towards arrearages until
satisfied in full. Alimony was to be paid for a term of ten years and was to be
paid until expiration of the term, death of either party, remarriage of defendant
or her cohabitation "as defined by the [c]ourts of the State of New Jersey at that
time, whichever occurs first."
In addition, plaintiff was ordered to pay child support for two of the
children, who were unemancipated at the time, in the sum of $286 per week as
calculated in accordance with the child support guidelines worksheet. Child
support was subject to modification when the two children were in college and
parties' voluntary agreement to binding arbitration. See Kelly v. Kelly (Kelly
I), Docket No. A-2637-14 (App. Div. Oct. 17, 2016). We incorporate, by
reference, the facts stated in our prior opinion.
2
We affirmed the validity of the parties' agreement to refer their matrimonial
issues to binding arbitration. See Kelly I, slip op. at 4.
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3
was to be paid through the probation department until their emancipation. The
FJOD also addressed equitable distribution and ordered plaintiff to "provide life
insurance on his life in the amount of $100,000[], naming the two (2)
unemancipated children . . . as beneficiaries until they became emancipated."
No life insurance was ordered to secure alimony payments.
Two months later on December 13, 2017, plaintiff filed a third-party
complaint against defendant in the Law Division alleging "the subject matter of
this litigation was not decided by the [a]rbitration [o]rder or [FJOD]." 3 On
January 23, 2018, defendant filed an answer to the third-party complaint, and
the matter was referred to non-binding arbitration on June 14, 2018. After the
arbitration was unsuccessful, a settlement conference was conducted on
November 2, 2018, but the matter was not resolved. On December 19, 2018, the
Law Division judge issued an order, which: (1) granted defendant's motion for
summary judgment and dismissed plaintiff's third-party complaint with
prejudice; and (2) granted defendant's motion to deem the third-party complaint
3 On June 30, 2017, the State of New Jersey Higher Education Student
Assistance Authority filed an eighteen-count complaint against plaintiff
"seeking [j]udgment of $222,350.66 plus interest and attorneys' fees for nine
student loans . . . . spent for the college education of [plaintiff]'s [two] oldest
children." See N.J. Higher Educ. Student Assistance Auth. v. Kelly, No. WRN-
L-0311-18. This case is ongoing.
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4
frivolous. Consequently, plaintiff was sanctioned in the amount of $3,000 for
filing the frivolous third-party complaint against defendant.
On December 13, 2017, the Sussex County Probation Department issued
a bench warrant for plaintiff's arrest for non-payment of support. In response,
plaintiff filed an emergent application to vacate the arrest warrant. On January
2, 2018, Judge Noah Franzblau vacated plaintiff's bench warrant based on his
pending appeal. On April 26, 2018, Judge Ralph Amirata ordered plaintiff to
immediately pay the sum of $2,976 towards child support arrearages which
dated back to January 2018, otherwise a bench warrant would issue for his arrest.
On June 6, 2018, defendant filed a motion to enforce the FJOD claiming plaintiff
was in arrearages for child support and alimony in excess of $117,000. Plaintiff
opposed defendant's motion for enforcement and requested a stay of the
proceedings because the issues related to the October 7, 2015 arbitration order
and decision were pending appeal.
On October 15, 2018, Judge Suh issued an order 4 denying plaintiff's
application to stay enforcement of the FJOD pending appeal and granted
4
Defendant's June 6, 2018 enforcement action was initially filed with the
Sussex County Family Part. On July 1, 2018, however, plaintiff was appointed
to the position of Sussex County Counsel, and the case was transferred to
Warren County. An enforcement hearing was conducted on August 9, 2018, and
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5
defendant's motion to compel enforcement. Relevant to the current appeal,
Judge Suh based her decision on a calculation of plaintiff's total net yearly
income based, in part, on his part-time employment as Sussex County Counsel,
for which he netted $149,812 per year. When combined with plaintiff's claimed
net annual income of $53,646, his total net yearly income equated to $203,458.
Even paying the yearly expenses and alimony obligation, Judge Suh found
"plaintiff will enjoy a surplus of $89,026."
Therefore, the judge denied plaintiff's application to modify enforcement
of his financial obligations pending appeal. Judge Suh ordered plaintiff to
continue paying $295 per week for his child support obligation and $3,000 per
month for base alimony, plus $400 per month towards alimony arrears. Plaintiff
was placed on a single missed payment bench warrant status. The record shows
a prior Warren County Family Part judge "ordered plaintiff to make a lump sum
payment of $800" on August 31, 2018. The matter was subsequently transferred
to Judge Suh.
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6
plaintiff did not file a motion for reconsideration, 5 notice of appeal, 6 or a motion
for relief based upon mistake 7 relative to Judge Suh's calculation of his income.
The October 15, 2018 order also denied, without prejudice, defendant's
request to compel plaintiff to obtain and maintain a $250,000 life insurance
policy naming her as beneficiary until he satisfied all of his financial obligations
under the FJOD. However, on July 19, 2019, Judge Suh issued an order granting
defendant's renewed motion to compel plaintiff to obtain and maintain a life
insurance policy naming her as beneficiary in response to his continued "failure
to comply with the FJOD." During oral argument, plaintiff stated he has not
obtained a life insurance policy as ordered because he is uninsurable. And, the
order required "plaintiff to pay defendant $2,474 each month, in addition to his
5 Rule 4:49-2 provides a motion for "reconsideration seeking to alter or amend
a[n] . . . order shall be served no later than [twenty] days after service of the"
order. (Emphasis added). "The motion shall state with specificity the basis on
which it is made, including a statement of the matters or controlling decisions
which counsel believes the court has overlooked or as to which it has erred . . . ."
Ibid.
6 Rule 2:4-1(a) requires an appeal of a final order to "be filed within [forty-five]
days of their entry." (Emphasis added).
7 Rule 4:50-1(a) permits relief from an "order if there has been a mistake."
DiPietro v. DiPietro, 193 N.J. Super. 533, 539 (App. Div. 1984). "A motion for
such relief must be made within one year after entry of the judgment." Ibid.
(citing R. 4:50-2).
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7
other financial obligations, until he obtain[ed] such a policy." 8 The July 19,
2019 order also "directed [p]laintiff to ensure [d]efendant was not liable for any
outstanding judgments arising out of the" Townhouse, pursuant to the FJOD,
which required him to indemnify and hold her harmless from same.
On March 27, 2020, in response to plaintiff's failure to indemnify
defendant, Judge Suh issued an order compelling plaintiff to pay defendant
$12,598 in satisfaction of a judgment levied against her bank account arising out
of defaults of payments and fees related to the Townhouse. The order required
plaintiff to provide proof of payment by April 27, 2020, otherwise a bench
warrant would issue. On April 20, 2020, plaintiff filed a motion to stay the
March 27, 2020 order and vacate the two bench warrant provisions set forth in
the October 15, 2018 and March 27, 2020 orders. Judge Suh denied plaintiff's
motion on May 22, 2020.
The matter was subsequently transferred to Judge Ballard. On September
14, 2020, Judge Ballard issued an order denying plaintiff's motion to reconsider
8 On November 15, 2019, Judge Suh issued another order compelling plaintiff
to either: (1) furnish proof of a life insurance policy in compliance with the July
19, 2019 order; or (2) "pay the monthly sanction in the amount of $2,474," which
at the time had accrued to the amount of $7,422 and would "continue to accrue
monthly until [plaintiff] complie[d] with the July 19, 2019 order."
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8
the October 15, 2018 and March 27, 2020 orders. Even giving plaintiff the
benefit of the doubt as to the timeliness of his motion for reconsideration, Judge
Ballard found the October 15, 2018 and May 22, 2020 orders had "fully
considered the matters at issue" and an ability-to pay-hearing was warranted.
The ability-to-pay hearing was ultimately scheduled for January 22, 2021.
On November 23, 2020, plaintiff filed a motion seeking relief from the
October 15, 2018 and March 27, 2020 orders, pursuant to Rules 4:50-1(f) and
1:1-2. Plaintiff claimed his income had been erroneously calculated by Judge
Suh, and the subsequent orders entered against him were based upon her
miscalculation. Defendant filed a notice of cross-motion seeking to hold
plaintiff in willful violation of the orders entered on October 15, 2017, July 19,
2019, November 15, 2019, and March 27, 2020. Defendant also requested a
bench warrant be issued for plaintiff's arrest. Oral argument was scheduled on
January 22, 2021 at the parties' request. However, two days earlier on January
20, 2021, the parties were provided with Judge Ballard's written statement of
reasons pursuant to Rules 1:6-2(f) and 1:7-4 and were advised by the court that
an appearance was unnecessary on January 22, 2021. 9
9
In his brief, plaintiff contends Judge Ballard rendered an opinion without the
benefit of oral argument or testimony from the parties. However, plaintiff did
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9
In his statement of reasons, Judge Ballard highlighted the portion of Judge
Suh's October 15, 2018 order that served as the basis for plaintiff's motion:
According to plaintiff[']s [case information statement]
submitted July 19, 2018, he made a net income of
$53,646 last year. During oral argument, [p]laintiff
revealed he also makes about $150/hour, working part-
time for [thirty] hours a week as Sussex County
Counsel. This amounts to $234,000 per year. Pursuant
to Appendix[,] [p]laintiff makes a net income of $1,617
per week ($234,000/52weeks=$4,500-$1,619=$2,881)
or $149,812 net per year as Sussex County Counsel.
Therefore, [p]laintiff stipulates to a total net yearly
income of $203,458 ($149,812 + $53,646).
Judge Ballard reasoned that "[t]he purpose and effect of the above
paragraph was not to calculate [p]laintiff's income" but "to explain why Judge
Suh denied [his] motion for a stay of enforcement of his already established
alimony and child support obligations." In addition, Judge Ballard emphasized
"Judge Suh's examination of [p]laintiff's financials was [done] to explain why
not brief the argument as to whether the judge was required under the law to
schedule a hearing. Therefore, we deem the issue waived. See Telebright Corp.
v. Dir., N.J. Div. of Tax'n, 424 N.J. Super. 384, 393 (App. Div. 2012) (deeming
an issue waived when the brief includes no substantive argument with respect to
the issue); Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011)
(stating "[a]n issue not briefed on appeal is deemed waived"); Mid-Atl. Solar
Energy Indus. Ass'n v. Christie, 418 N.J. Super. 499, 508 (App. Div. 2011)
(declining to consider issue raised "without a separate point heading"); DeSoto
v. Smith, 383 N.J. Super. 384, 395 n.1 (App. Div. 2006) (refusing to consider
issue not set forth as a separate issue in the legal argument of the appellate brief).
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the [c]ourt believed that [p]laintiff had the ability to comply with his existing
obligations while waiting for a decision from the Appellate Division."
Therefore, Judge Ballard found Judge Suh's "summary of [p]laintiff's financial
situation" was "irrelevant to his already existing obligations."
As to the applicability of Rule 4:50-1 advanced by plaintiff, Judge Ballard
concluded he "has not suffered any 'unjust result'" thereby barring invocation of
the rule. The judge denied defendant's cross-motion to issue a bench warrant
for plaintiff's arrest "pending the ability-to-pay hearing." This appeal
followed.10
Plaintiff raises the following issues on appeal:
(1) the motion judge applied the wrong standards in
denying relief to plaintiff;
(2) plaintiff is entitled to relief pursuant to Rule 4:50-
1(f);
(3) plaintiff is entitled to relief pursuant to Rule 1:1-2;
and
(4) proceedings upon remand must be before a different
judge to preserve the appearance of a fair and
unprejudiced hearing.
10 On February 10, 2021, plaintiff filed his notice of appeal as to the January
20, 2021 Family Part order. Plaintiff's ability-to-pay hearing was subsequently
adjourned pending the outcome of the within appeal.
A-1529-20
11
Having carefully reviewed the record, we affirm primarily for the reasons
expressed in the thorough statement of reasons Judge Ballard issued with the
order under review. R. 2:11(e)(1)(E). We add the following remarks.
II.
Appellate "review of Family Part orders is limited." Gormley v. Gormley,
462 N.J. Super. 433, 442 (App. Div. 2019). This court accords general
"deference to Family Part judges due to their 'special jurisdiction and expertise
in family [law] matters.'" Ibid. (alteration in original) (quoting Cesare v. Cesare,
154 N.J. 394, 413 (1998)). Therefore, we will uphold a Family Part judge's fact-
finding so long as it is "supported by adequate, substantial, credible evidence."
Ibid. (quoting Cesare, 154 N.J. at 411-12). Reversal is warranted only when the
Family Part judge's fact-findings "are 'so manifestly unsupported by or
inconsistent with the competent, relevant and reasonably credible evidence as to
offend the interests of justice.'" Ibid. (quoting Rova Farms Resort, Inc. v. Invs.
Ins. Co. of Am., 65 N.J. 474, 484 (1974)); see also Lombardi v. Lombardi, 447 N.J. Super. 26, 33 (App. Div. 2016) (noting this standard applies to the Family
Part's decisions regarding alimony and child support).
The judge's interpretation of law or its legal conclusions, however, are
reviewed de novo. See Ricci v. Ricci, 448 N.J. Super. 546, 565 (App. Div.
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12
2017); Spangenberg v. Kolakowski, 442 N.J. Super. 529, 535 (App. Div. 2015)
(quoting Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)).
"[A] Rule 4:50-1 decision rests within 'the sound discretion of the trial
court,' and [this court] will not disturb it 'absent an abuse of discretion.'" BV001
REO Blocker, LLC v. 53 W. Somerset St. Props., LLC, 467 N.J. Super. 117, 124
(App. Div. 2021) (quoting Mancini v. EDS ex rel N.J. Auto. Full Ins.
Underwriting Ass'n, 132 N.J. 330, 334 (1993)). Rule 4:50-1 provides:
On 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[ule] 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.
[Emphasis added].
"[A] motion for relief from judgment based on any one of the six specified
grounds should be granted sparingly," Pressler & Verniero, Current N.J. Court
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Rules, cmt. 1 on R. 4:50-1 (2022); see In re G'ship of J.N.H., 172 N.J. 440, 473-
74 (2002), and "may not be used as a substitute for a timely appeal ," In re Est.
of Schifftner, 385 N.J. Super. 37, 43 (App. Div. 2006) (quoting Wausau Ins. Co.
v. Prudential Prop. & Cas. Ins. Co., 312 N.J. Super. 516, 519 (App. Div. 1998)).
"The rule applies only to final orders and judgments." Pressler, cmt. 2 on R.
4:50-1; but see Pressler, cmt. 6.1 on R. 4:50-1 (noting "[a]s a general matter,
judgments and orders in family actions are covered by this rule.").
As asserted by plaintiff, Rule 4:50-1(f) "is the 'elusive catchall category'"
for relief. (Quoting Pressler, 5.6.1 on R. 4:50-1). "No categorization can be
made of the situations which would warrant redress under subsection (f). . . .
[T]he very essence of [subsection] (f) is its capacity for relief in exceptional
situations. And in such exceptional cases its boundaries are as expansive as the
need to achieve equity and justice." DEG, LLC v. Twp. of Fairfield, 198 N.J.
242, 269–70 (2009) (first and second alterations in original) (emphasis added)
(quoting Ct. Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)). "Whether exceptional
circumstances exist is determined on a case by case basis according to the
specific facts presented." J.N.H., 172 N.J. at 474.
Courts should consider, among other factors: (1) "the 'extent of the delay
in making the application for relief'"; (2) "the underlying reasons or cause"; (3)
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14
"fault or blamelessness of the litigant"; and (4) "any prejudice that would accrue
to the other party." Ibid. (internal quotation marks omitted) (quoting C.R. v.
J.G., 306 N.J. Super. 214, 241 (1997)); see BV001 REO Blocker, LLC, 467 N.J.
Super. at 126. "[T]he correctness or error of the original judgment," however,
"is ordinarily an irrelevant consideration." Pressler, cmt. 5.6.1 on R. 4:50-1.
The very purpose of a Rule 4:50 motion is not, as in
appellate review, to advance a collateral attack on the
correctness of an earlier judgment. Rather, it is to
explain why it would no longer be just to enforce that
judgment. The issue is not the rightness or wrongness
of the original determination at the time it was made but
what has since transpired or been learned to render its
enforcement inequitable.
[J.N.H., 172 N.J. at 476 (emphases added).]
Here, plaintiff contends Judge Ballard erred in denying relief pursuant to
Rule 4:50-1 because he applied the wrong standards. First, plaintiff argues
Judge Ballard refused to reconsider the merits of Judge Suh's decisions.
Specifically, plaintiff claims: (1) Judge Suh's October 15, 2018 order denying
his request to stay proceedings pending appeal and compelling him to pay child
support, alimony, and arrearages was based on an incorrect "finding that
plaintiff receives a salary as an employee of Sussex County," (emphasis added);
and (2) Judge Suh's March 27, 2020 order compelling him to satisfy the
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15
Townhouse judgment "was clearly imposed as the result of her prior erroneous
conclusion that plaintiff 'enjoys a surplus of $89,092' per year."
We note both of plaintiff's arguments rely on the correctness of the
original decisions, which "is ordinarily an irrelevant consideration." Pressler,
cmt. 5.6.1. on R. 4:50-1. However, plaintiff fails "to explain why it would no
longer be just to enforce [the] judgment[s]," J.N.H., 172 N.J. at 476 (emphasis
added). Indeed, plaintiff has provided no argument, facts, or legal authority to
support his contention why an un-appealed, three-year-old calculation11
constitutes an exceptional circumstance warranting redress "to achieve equity
and justice."12 DEG, 198 N.J. at 270 (quoting Court Inv. Co., 48 N.J. at 341).
11
Plaintiff claims "he had not fully reviewed the October [15,] 2018 [o]rder
until over a year later."
12
Plaintiff's reliance on our holding in DiPietro, 193 N.J. Super. 533, is
misplaced. In DiPietro, the Family Part erred in calculating a vested pension's
value for purposes of equitable distribution. See id. at 536-37. The Family Part
"intended [the] plaintiff to have [twenty-five percent] of [the] defendant's
pension. Through [the judge's] mathematical mistake, however, [the defendant]
[would] receive at least twice what the judge intended." Id. at 539. Therefore,
we concluded relief was proper under Rule 4:50-1(a). Ibid. First, under Rule
4:50-1(a), the Family Part may correct "a mistake in expressing his [or her]
judgment mathematically" within one year. Id. at 539; see R. 4:50-2. Second,
the mathematical mistake was relevant to calculating a vested pension's value
for purposes of equitable distribution. See id. at 536-37. We did not address
Rule 4:50-1(f) in our opinion, as argued in the matter under review. Here, Judge
Suh's calculation was not relevant to calculating plaintiff's alimony and child
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16
Plaintiff's belated arguments with regard to the Family Part's purported
errors in considering plaintiff's income and ability-to-pay would more properly
have been handled at an ability-to pay-hearing, which he did not request. See
Schochet v. Schochet, 435 N.J. Super. 542, 549-50 (App. Div. 2014) ("[A]n
[ability-to-pay] hearing has a far more limited purpose: to determine whether
the failure to pay was willful."). Therefore, we reject plaintiff's argument that
he was entitled to Rule 4:50-1(f) relief. Moreover, even giving plaintiff the most
indulgent presumption, his argument relative to the calculations made by Judge
Suh in her October 15, 2018 order is time-barred pursuant to Rule 2:4-1(a)13
because the forty-five-day time limit to file an appeal has long expired. Rule
2:4-3(e) permits the tolling of the forty-five-day limit if a "timely" motion for
support obligations because his obligations had been previously calculated,
entered, and affirmed. Moreover, Judge Suh's calculation did not alter plaintiff's
obligations. Rather, the sole purpose of Judge Suh's calculation was to
determine whether to grant or deny plaintiff's motion to stay enforcement of his
financial obligations pending appeal. Unlike in DiPietro, where the Family
Party's mathematical mistake had financial ramifications between the parties,
here, Judge Suh's mathematical calculation created no financial ramifications
between the parties because she merely enforced plaintiff's already existing
financial obligations pending appeal.
13 Rule 2:4-1(a) addresses Time: From Judgments, Orders, Decisions, Actions
and from Rules. "Except as set forth in subparagraphs (1) and (2), appeals from
final judgments of courts, final judgments or orders of judges sitting as statutory
agents and final judgments of the Division of Workers' Compensation shall be
filed within [forty-five] days of their entry." Ibid.
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reconsideration is filed with the Family Part. The record shows no such motion
was filed in the matter under review.
III.
Next, plaintiff argues Judge Ballard applied the wrong standards in
denying relief, and "erred by giving undue deference to the erroneous rulings of
[Judge Suh] to such an extent that he declared that its 'accuracy' was 'irrelevant.'"
Plaintiff relies on our recent holding in Lawson v. Dewar,14 in which we
stated:
If a prior judge has erred or entered an order that has
ceased to promote a fair and efficient processing of a
particular case, the new judge owes respect but not
deference and should correct the error. The polestar is
always what is best for the pending suit; it is better to
risk giving offense to a colleague than to allow a case
to veer off course.
[ 468 N.J. Super. 128, 135 (App. Div. 2021) (citations
omitted) (Emphasis added).]
Again, we reject plaintiff's argument.
Judge Ballard did not give undue deference to Judge Suh's previous
findings but stressed "the accuracy of [her] summary of [p]laintiff's financial
situation" was "irrelevant" to enforcing his existing obligations set forth in the
14
We note that our holding in Lawson addressed a Rule 4:42-2 motion dealing
with judgment upon multiple claims, not a Rule 4:50-1(f) motion.
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18 October 15, 2018 and March 27, 2020 orders. In arguing Judge Ballard erred
by declaring the accuracy of plaintiff's income to be "irrelevant," plaintiff asserts
our holding in Lawson entitles him to relief. Plaintiff also claims "the error was
obvious" regarding the calculation of his income after he became Sussex County
counsel because the County is a client of his law firm, Kelly & Ward, LLC, and
not him personally.
Plaintiff also asserts he is entitled to relief pursuant to Rule 1:1-2(a),
which provides:
[T]he Court Rules "shall be construed to secure a just
determination, simplicity in procedure, fairness in
administration and the elimination of unjustifiable
expense and delay." For that reason, "[u]nless
otherwise stated, any rule may be relaxed or dispensed
with by the court in which the action is pending if
adherence to it would result in an injustice."
[Salazar v. MKGC + Design, 458 N.J. Super. 551, 558
(App. Div. 2019) (second alteration in original)
(citation omitted) (quoting R. 1:1-2(a)).]
Plaintiff does not present a specific argument or cite to facts or legal
authority in his brief supporting his contention that he is entitled to relief
pursuant to Rule 1:1-2(a). Rather, he merely claims relief "is warranted for all
the same reasons and in furtherance of the facts, argument and legal authority
set forth" in Rule 4:50-1(f). Consequently, plaintiff has waived the issue. See
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19
State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977) ("[P]arties may not
escape their initial obligation to justify their positions by specific reference to
legal authority.").
We discern no abuse of discretion with Judge Ballard's analysis. The
record supports a finding that plaintiff's income changed and ostensibly
increased since the FJOD was entered. Plaintiff's child support and alimony
arrearages continue to increase, to the detriment of defendant. 15 Moreover,
enforcement of the January 20, 2021 order has not even been executed because
the ability-to-pay hearing has not yet occurred. Under these circumstances, we
conclude enforcement of the January 20, 2021 order would not be unjust or
inequitable. See BV001 REO Blocker, 467 N.J. Super. at 124.
IV.
Finally, plaintiff argues "[s]ince Judge Ballard has already
conscientiously expressed his opinion about this matter[,] . . . future proceedings
must be held before another [j]udge to preserve the appearance of a fair and
unprejudiced hearing," pursuant to Rule 1:12-1(d). (Citing generally Steele v.
Steele, 467 N.J. Super. 414, 445 (App. Div.), cert. denied, 248 N.J. 235 (N.J.
15
During oral argument, defendant advised the arrearages are now in excess of
$200,000.
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20
2021)). Specifically, plaintiff argues Judge Ballard's deference to Judge Suh's
rulings shows he "was not going to seriously reconsider any part of this tortured
litigation." Plaintiff references Judge Ballard's comments—"I've reviewed
Judge Suh's recent detailed order of May 22[,] 2020. She makes it very clear as
to the length that [plaintiff] has gone to avoid his responsibilities;" and "I've
reviewed all of the prior orders you have which basically exhausted any
credibility with this [c]ourt through your years of efforts."
Rule 1:12-1(d) provides that a judge "shall be disqualified on the court's
own motion and shall not sit in any matter, if the judge . . . has given an opinion
upon a matter in question in the action." Under this rule, a matter remanded
after an appeal should be assigned to a different judge if: (1) the matter is
remanded for a new trial; and (2) the judge "expressed conclusions regarding
witness credibility." See Pressler, cmt. 4 on R. 1:12-1 (emphasis added).
Alternatively, the appellate court may direct a matter remanded to be
assigned to a different judge "to preserve the appearance of a fair and
unprejudiced hearing." Ibid.; Graziano v. Grant, 326 N.J. Super. 328, 349 (App.
Div. 1999) ("That power may be exercised when there is a concern that the trial
judge has a potential commitment to his or her prior findings."); see e.g., Steele,
467 N.J. Super. at 445 (directing another judge to preside over the matter after
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remand where the first judge "already conscientiously expressed his opinion
about the fairness of the [marital agreement]" and the portion of the JOD that
enforced the marital agreement was vacated). However, "such authority is
ordinarily sparingly exercised." Pressler, cmt. 4 on R. 1:12-1.
Generally, we leave "the issue of recusal to the judge." Ibid. In Graziano,
where the trial judge found the defendant to be pursuing frivolous litigation and
inferred he had "engaged in 'chicanery, artifice, sharkness' and 'shady conduct,'"
we concluded "[t]his case does not clearly call for the assignment of the matter
to another judge." 326 N.J. Super. at 349-50. We held:
[C]onsideration must be given to the fact that, to some
extent, it would be counterproductive to require a new
judge to acquaint himself or herself with the litigation.
Rather, we believe that an application for
disqualification pursuant to R[ule] 1:12-1 should
initially be made to the motion judge . . . . If the judge
believes that he [or she] is committed to the findings he
[or she] has previously made, or there is any other
reason which might preclude a fair and unbiased
hearing and judgment or which might reasonably lead
counsel or the parties to believe so, R[ule] 1:12-1(f), we
have every confidence that the judge will recuse
himself [or herself].
[Id. at 350 (citation omitted).]
We find no basis to have a different judge be assigned to this matter for
future proceedings. Plaintiff has failed to demonstrate how Judge Ballard is
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biased or provide "any other reason[,] which might preclude a fair" hearing or
judgment. Ibid.16
To the extent we have not addressed any of plaintiff's arguments, it is
because we have concluded they are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E). The Family Part shall
schedule an ability-to-pay hearing forthwith. We do not retain jurisdiction.
Affirmed.
16
In her appellate opposition brief, defendant asks the court to address and
restrain plaintiff's "pattern of frivolous litigation." Because defendant did not
file a cross-appeal, we decline to consider her argument. See State v.
Eldakroury, 439 N.J. Super. 304, 307 n.2 (App. Div. 2015) ("Where a
[respondent] is seeking to expand the substantive relief granted by the trial court,
as opposed to merely arguing an additional legal ground to sustain the trial
court's [decision], the [respondent] must file a cross-appeal.").
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