Opinion
DOCKET NO. A-3661-14T3
02-19-2016
P.C., Plaintiff-Respondent, v. T.C., Defendant-Appellant.
Adinolfi & Lieberman, PA, attorneys for appellant (Drew A. Molotsky, on the briefs). Jill M. Tribulas, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Haas. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FD-04-0722-10. Adinolfi & Lieberman, PA, attorneys for appellant (Drew A. Molotsky, on the briefs). Jill M. Tribulas, attorney for respondent. PER CURIAM
In this non-dissolution matter, defendant T.C. appeals from the Family Part's March 9, 2015, order granting plaintiff P.C. sole legal custody of the parties' son, then almost six years old. The court entered the custody order after it denied defendant's request to adjourn a plenary hearing, which the court conducted in defendant's absence. Having considered defendant's arguments in light of the record and applicable principles of law, we conclude that the trial court mistakenly exercised its discretion in proceeding with the custody hearing in defendant's absence.
I.
In January 2010, the parties were granted joint legal custody of their son. Plaintiff was designated the parent of primary residence, and defendant exercised parenting time. In the years that followed, the parties sharply disagreed over the care and custody of their son.
Plaintiff contends that their son has special medical needs, and he requires treatment. Defendant questions the diagnosis, maintaining it was based on inaccurate information plaintiff has supplied to diagnosticians. Defendant has on multiple occasions alleged plaintiff has abused the boy, but the Division of Child Protection and Permanency (DCPP) has not confirmed that. Plaintiff has alleged defendant has interfered with her parenting time by refusing to return the child according to established schedules.
In the summer of 2014, the court issued multiple orders to compel defendant to return the child to plaintiff as scheduled. Defendant believed the child was at risk with plaintiff. On July 14, 2014, the trial judge who entered the order on appeal compelled defendant to return the child to plaintiff on July 15, 2014, or face arrest. A second order, issued on July 25, 2014, compelled defendant to return the child on July 27, 2014. On July 28, 2014, the judge scheduled defendant's two discontinuous weeks of parenting time, and mandated that defendant administer medications to the child.
After defendant refused to return the child after his first vacation week, a second judge entered an order on August 12, 2014, compelling defendant to return the child. The court denied defendant's request for sole custody and ordered that defendant's parenting time be supervised pending a plenary hearing "[to ensure] compliance with the schedule." The court ordered DCPP to conduct a safety evaluation of the parties and investigate abuse allegations. The court also appointed psychologist John J. Guerin, Ph.D., to conduct a "forensic mental health evaluation of the child and both parties." The court ordered discontinuation of a particular medication, based on a physician's recommendation and the parties' agreement. The court scheduled a plenary hearing on October 13, 2014, before the first judge.
At least one other judge handled the parties' case in prior years. However, we refer only to the three judges who handled the case between July 2014 and February 2015.
The October 2014 hearing was adjourned to December 18, 2014 before a third judge. Both parties appeared on that day — defendant pro se — along with Dr. Guerin and numerous other witnesses, ready to try the matter. However, the judge informed the parties that he would be unable to try the matter because he was going to soon be assigned to a different docket within the Family Part.
In his February 2015 decision, the trial judge stated that defendant requested the adjournment. The record does not include the adjournment request, or the order rescheduling the hearing. The court-appointed psychologist completed his report in November 2014. Perhaps, the hearing was adjourned to await his report.
Nonetheless, the court conferenced the case, and secured the parties' agreement to attend mediation, and to utilize the services of a parent coordinator. Defendant expressed concerns about scheduling the mediation. Plaintiff's counsel conferred with the mediator and stated that he was available on January 20 or 27, 2015. The judge asked defendant which date he preferred.
[T.C.]: Either one. The earlier the better, Your Honor.
THE COURT: January 20th?
[T.C.]: I'm in the [oil] business and I'm going to [be] blown out. And watch it snow on that day or the day before and that's when — or within three days of snow coming I'm blown out.
THE COURT: Alright. When, you know what, if a circumstance like that arises, please call [plaintiff's counsel] and we'll see if we can change the date, all right?
[T.C.]: Yeah, the only thing with these court proceedings now at this time is that factor.
THE COURT: Well, we'll work with you, okay?
[T.C.]: Yes.
THE COURT: I can't guarantee it, but, . . . if we're here . . . a week before a giant snowstorm and maybe you can then grab that other date, you know what I mean?
[T.C.]: Yeah.
The plenary hearing was ultimately scheduled for Monday, February 23, 2015 before the first judge. In the early morning of February 20, 2015, defendant sent a request to plaintiff's counsel for an adjournment. That letter may have been preceded by a telephone conversation with counsel the previous day. Defendant also sent counsel a copy of a letter defendant intended to send to the judge. The letter apparently was delivered to the court early Monday, February 23.
Counsel stated ambiguously, "we talked on Thursday, but on Friday, I'm not sure."
In his letter to the judge, defendant explained that he was extremely busy because of "these dangerous temperatures, I am 100% unprepared an[d] not capable of coming to court on Monday . . . ." He told counsel, "When we get into weather, similar to what is happening now, it[']s like a 'STATE OF EMERGENCY' in our business . . . ." Defendant stated he was handling emergency heating service for low income residents in Pennsylvania, and that he was working seven days a week, 7 a.m. to 9 p.m. Defendant also stated he had retained a law firm — the one now representing him on appeal — and a retired judge at the firm. He also stated he wished to challenge Dr. Guerin's report and hire another expert.
At the hearing on February 23, 2015, the judge noted that the court received defendant's adjournment request by email at 7:46 a.m. Without seeking plaintiff's position on the request, the judge stated, "That is denied. First off, the fact the defendant needs to work is not something he didn't know a long time ago. Additionally, this case is now 196 days old." After confirming that plaintiff's counsel was prepared to proceed, the court conducted the hearing in defendant's absence. Plaintiff and several fact witnesses testified. The court also admitted Dr. Guerin's report into evidence. The report offered psychological opinions about both parties based on psychological testing, interviews, and collateral sources.
At the conclusion of the hearing, the court amplified its reasons for denying the adjournment.
The court also addressed the "rambling" and "accusatory" nature of defendant's prior correspondence and submissions, concluding they failed to support his substantive contentions and reflected poorly on his fitness to parent. While we shall not comment on the merits of defendant's contentions or his fitness to parent, we do not intend, by our silence, to condone the disparaging tone, coarse language, and personally insulting rhetoric used by defendant in his correspondence to the court and opposing counsel. However, that does not undermine his right to a hearing on the merits, as we discuss below. --------
THE COURT: All right. First of all, I want to initially comment on the adjournment requested [by] the defendant.
This is not the first time the defendant has sought to postpone this matter. In fact, this was originally scheduled for a hearing October 13th of 2014, which was also adjourned at the request of the defendant. I know there was a subsequent appearance before Judge Stein in the interim.
But I -- I also noted that while there was a letter marked as P-1 from defendant to plaintiff, which is different than what was sent to the Court, although that is also dated Monday, February 23.
The Court's first notice of a request to adjourn was this morning at 7:46 a.m. The defendant gives no viable reason for the adjournment, other than he's decided that he's busy at work in his industry and also that his employees are tired.
He talks about hiring counsel, the former Judge Testa, who he obviously would not hire, since he would not be able to appear in the State Court. And I note that
he previously had counsel at one point who withdrew from this case many months ago.
He asserts Dr. Guerin has to be met with again, although the doctor, obviously, felt comfortable enough to issue his report, which has been marked as Exhibit P-2.
After reviewing each of the factors under N.J.S.A. 9:2-4, the court granted plaintiff sole legal custody, and maintained defendant's supervised parenting time. In addition to relying on plaintiff's testimony and Dr. Guerin's report, the court reviewed, without admitting into evidence, various items of correspondence that defendant had sent to the court in the previous months, and correspondence from the proposed parenting coordinator and mediator. The court found the documents probative of defendant's demeanor and capacity to share legal custody.
The court also barred defendant from contacting his son's physicians in an attempt to interfere with the child's medical treatment. The court prohibited him from disparaging plaintiff, encouraging the child to lie, or videotaping the child naked (which defendant had apparently done to document signs of alleged abuse).
This appeal followed. Defendant argues the court erred in denying his adjournment request and conducting the hearing in his absence. He also contends the court erred in relying on Dr. Guerin's report.
II.
The court's decision to grant an adjournment rests within its sound discretion. J.D. v. M.D.F., 207 N.J. 458, 480 (2011). The exercise of discretion must be "founded upon the reason and the conscience of the judge, to a just result in the light of the particular circumstances of the case." State v. Hayes, 205 N.J. 522, 539 (2011) (quoting Smith v. Smith, 17 N.J. Super. 128, 132 (App. Div. 1951), certif. denied, 9 N.J. 178 (1952)). Initial trial adjournment requests based on "the unavailability of an attorney [or] a party" shall be granted if made timely . . . ." R. 4:36-3(b). Requests "should be made as soon as the need is known . . . ." N.J.S.A. 4:36-3. They shall be made no later than the Wednesday preceding the trial week, "absent exceptional circumstances." Ibid.
The Court has identified several factors for assessing a criminal defendant's request for a continuance to retain counsel:
the length of the requested delay; whether other continuances have been requested and granted; the balanced convenience or inconvenience to the litigants, witnesses, counsel, and the court; whether the requested delay is for legitimate reasons, or whether it is dilatory, purposeful, or contrived; whether the defendant contributed
to the circumstance which gives rise to the request for a continuance; whether the defendant has other competent counsel prepared to try the case . . .; whether denying the continuance will result in identifiable prejudice to defendant's case, and if so, whether this prejudice is of a material or substantial nature; the complexity of the case; and other relevant factors which may appear in the context of any particular case . . . .
[State v. Kates, 216 N.J. 393, 396 (2014) (internal quotation marks and citation omitted).]
Many, if not all, of these factors could be relevant to a reasoned exercise of discretion in granting an adjournment request in a child custody matter. The court should also consider the impact of the adjournment on the best interests of the child. See Luedtke v. Shobert (Luedtke), 342 N.J. Super. 202, 214 (App. Div. 2001) ("[W]here . . . a party is seeking relief which will impact upon a child who has no independent representation, the court should seldom, if ever, proceed without both parents being represented, or, if they choose not to be, then being entirely satisfied that the child's interests are being adequately protected.").
If a court appropriately exercises its discretion to deny an adjournment, and the requesting party then fails to appear for a hearing as scheduled without just excuse, the court may impose one of an escalating array of sanctions, including payment of costs to the court; payment of fees to the non-delinquent party; "dismissal of the complaint . . . or motion, or the striking of the answer and the entry of judgment by default, or the granting of the motion"; or such other relief as it deems appropriate. R. 1:2-4.
The ultimate sanction of dismissal, or suppression of defenses, should be imposed sparingly, and as a last resort, when no lesser sanction will address the prejudice suffered by the non-delinquent party. Kosnowsky v. Atlantic City Med. Ctr., 175 N.J. 568, 575 (2003); see also Connors v. Sexton Studios, Inc., 270 N.J. Super. 390, 393 (App. Div. 1994) ("[A] dismissal with prejudice[] should not be invoked except in the case of egregious conduct . . . and should generally not be employed where a lesser sanction will suffice."). "At least the same degree of indulgence applies to the non-appearance of a pro se party." Pressler & Verniero, Current N.J. Court Rules, comment on R. 1:2-4 (2015). A court should exercise particular caution in resorting to the remedy of dismissal where the interests of an unrepresented third-party, such as a child, are at stake. See Essex Cty. Div. of Welfare v. J.S., 205 N.J. Super. 244, 247 (App. Div. 1985); Fehnel v. Fehnel, 186 N.J. Super. 209, 215 (App. Div. 1982).
Applying these principles, we are persuaded the court mistakenly exercised its discretion in denying the adjournment and conducting the hearing in defendant's absence.
We appreciate the judge's concern for the age of the case. However, the court, not defendant, was responsible for adjourning the hearing at the last minute in December, when all parties and witnesses were present and ready to proceed. Moreover, calendar objectives should not override the need to do justice. See Berkowitz v. Soper, ___ N.J. Super. ___, ___ (App. Div. 2016) (slip op. at 23) (finding that denial of brief adjournment requested two days before trial based on party's illness "was inconsistent with the fundamental principles of justice and fairness that must guide all judicial decisions"); Connors, supra, 270 N.J. Super. at 395.
As a result of having multiple judges handle this case, the judge was clearly unaware that defendant had expressed concern about his work schedule at the December 2014 conference, and had been given assurance by the judge presiding at that time that the court would work with him. We recognize that the discussion pertained to the scheduling of mediation, not the new hearing date. However, the discussion nonetheless put the court on notice that defendant's business obligations could interfere with his ability to appear.
The judge also gave insufficient weight to defendant's decision to retain counsel, and to retain an expert, although we agree the record does not disclose good cause for defendant's delay. The court apparently doubted that defendant retained counsel because he mentioned the name of a retired judge who obviously could not appear in court on his behalf. However, defendant also stated he retained the retired judge's firm.
The court also noted that the attorney who represented defendant in August 2014 had ceased representing him in December. However, no evidence has been presented regarding the circumstances of that separation. In the absence of such evidence, it is not apparent why that separation should have weighed against defendant's desire to retain new counsel.
The court also did not adequately consider the relative prejudice to the parties, including the child. The prejudice to defendant of a one-sided presentation of the issues was obvious. See Berkowitz, supra, ___ N.J. Super. at ___ (slip op. at 23-24) (discussing prejudice to defendant of trial conducted in her absence). The one-sided trial also deprived the child of a hearing and best interests determination based on a full presentation of the evidence. As for prejudice to plaintiff, we recognize that she and her counsel were present, along with at least two witnesses (one of whom was plaintiff's father). However, the prejudice was not irremediable. The court could have granted defendant the adjournment, conditioned upon an order requiring defendant to compensate plaintiff for her lost wages — if any — and costs and fees incurred in connection with the appearance in court. On remand, the court shall consider the appropriateness, and reasonable amount of such a compensatory action.
This brings us to the court's sanction. The court's decision to proceed with the hearing, and to enter an order granting plaintiff sole legal custody of the child, amounted to a dismissal of defendant's motion and the striking of his answer to plaintiff's motion. It was an extreme sanction under the circumstances, when lesser, economic measures would have sufficed to redress any prejudice plaintiff suffered. Delaying the hearing maintained a status quo in which defendant's parenting time was supervised, to assure his compliance with the proposed schedule.
Moreover, proceeding in defendant's absence was not compelled by the interests of the child. The court was not presented with an emergency situation that warranted a hearing on that date. The court was empowered to enter interim relief, if it deemed that maintaining the status quo was insufficient. The child was best served by a determination of his best interests based on a complete presentation of evidence.
Given our decision, we need not reach defendant's point that the court erred in admitting Dr. Guerin's report in evidence. However, at a plenary hearing on remand, defendant shall be afforded the opportunity to cross-examine Dr. Guerin. See R. 5:3-3(g) (stating that a court may admit into evidence the report of a court-appointed expert "subject to cross-examination by the parties.").
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION