Opinion
DOCKET NO. A-2729-10T1
03-14-2012
DEBORAH MILWARD, Plaintiff-Respondent, v. ROBERT MILWARD, Defendant-Appellant.
Robert Milward, appellant pro se. Deborah Milward, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Waugh.PER CURIAM
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-0068-08.
Robert Milward, appellant pro se.
Deborah Milward, respondent pro se.
Defendant Robert Milward appeals from a Family Part order, which sanctioned him for failing to produce discovery. Defendant moved for a reduction in alimony because plaintiff Deborah Milward was cohabiting and defendant experienced an adverse change in financial circumstances. Defendant also sought modification of child support arrearages, contesting the date previously fixed for the children's emancipation. The motion judge determined a plenary hearing was necessary. The matter was assigned to a different judge to conduct the hearing. At plaintiff's request, the trial judge ordered defendant to produce financial records, including income tax returns. As a sanction for defendant's noncompliance, the trial judge canceled the hearing and declined to consider defendant's requests for modification of the support obligations.
Following our review, we conclude the trial judge abused his discretion in refusing to conduct a plenary hearing as a sanction for the discovery lapse. We remand the matter for additional proceedings consistent with this opinion.
I.
The parties were divorced after more than twenty years of marriage. They have two children, who are now emancipated. The handwritten Final Judgment of Divorce (JOD) dated April 8, 2008, incorporated the parties' settlement of the issues other than the dissolution of the marriage.
Under the JOD, the parties shared joint legal custody of the children, plaintiff was designated the parent of primary residence and defendant the parent of alternate residence. Attributing $100,000 annual income to defendant, who owned and operated a construction business, and $30,000 annual income to plaintiff, it was agreed defendant would pay plaintiff weekly child support and permanent alimony at $286 and $375 respectively. The JOD did not specify the commencement date of the support payments, but rather provided payments would begin upon the sale of either the marital home or the parties' beach home on Burke Avenue in Wildwood (Burke Avenue property). The parties owned another Wildwood property on Juniper Avenue (Juniper Avenue property), which was also to be listed for sale.
The JOD stated the parties would equally split the proceeds received (or deficiencies resulting) from the sales of the marital home and Juniper Avenue properties. The net proceeds realized from the sale of the unencumbered Burke Avenue property were to be disproportionately divided with plaintiff receiving eighty percent and defendant twenty percent. This distribution was in exchange for plaintiff's waiver of any and all interest she had in defendant's construction business.
Pending the realty sales, in lieu of the agreed upon support, defendant consented to continue to pay specified bills and expenses
set forth in paragraph [seven] of the December 21, 2007 [consent] order until either the Burke Avenue or the [marital home were] sold, which[ever] occur[red] first, at which time his responsibility for the payments set forth in that order shall cease [and] he shall begin to pay child support [and] alimony[.]The bills enumerated in the December 21, 2007 consent order included
the mortgage on the martial home, the property taxes and insurance associated withThe parties' agreement provided that if neither property was sold after four months, the bill payment arrangement would be reevaluated, along with the start date of the payment of alimony and child support.
the marital property, the property taxes and insurance for the parties' Burke Avenue . . . property, the utility bills for the Burke Avenue . . . property, [plaintiff]'s Nissan Versa car payment, one half of the monthly cable bill at the marital home for the regular service, the water and sewer bill for the marital home, water and sewer bill for the Burke Avenue . . . property and water and sewer bill for the Juniper Avenue . . . property and the reasonable utility bills associated with the marital home.
Neither the marital home nor the Burke Avenue property sold. Further, defendant did not pay the mortgage or satisfy the other obligations enumerated in the JOD. Consequently, a complaint seeking foreclosure of the marital home was filed by the mortgagee.
Plaintiff moved for enforcement of litigant's rights, requesting defendant's compliance with the designated payment obligations. Defendant filed no opposition and the motion judge granted the following relief:
The four (4) month period outlined in the [JOD] has expired, however, no application has been made to reevaluate the payments. The [d]efendant has not filed opposition to this motion. Pending further application made to the [c]ourt to reevaluate the provisions of the [JOD], based upon the
properties not yet being sold, the [d]efendant shall continue to make all payments set forth in both the [JOD] and December 21, 2007 [consent order]. To the extent the [d]efendant is behind on payments, all such payments shall be immediately made current.
Months later, plaintiff filed a second enforcement motion and requested the commencement of the alimony and child support payments stated in the JOD. This motion was unopposed and the motion judge granted plaintiff's requests regarding satisfaction of the specific bill payments, but denied her request for the commencement of alimony and child support, explaining the court "ha[d been provided] insufficient information to make that determination[.]"
Almost twelve months later, plaintiff filed a third motion seeking the enforcement of prior orders and the start of the support payments set forth in the JOD. This motion was also unopposed and the motion judge granted plaintiff's requests. Defendant was held in contempt for failing to comply with prior orders to bring the obligations related to the marital home current. The motion judge also concluded the alimony and child support payments in the JOD were triggered, stating:
The [c]ourt finds that [d]efendant's lack of payments and disregard of his financial obligations set forth in the [JOD] constitutes grounds to trigger his child support obligation. The [c]ourt has reviewed a foreclosure notice relative to
the [marital home]. The [d]efendant was responsible for payment of the expenses (including mortgage and taxes) on that property until it was sold. Defendant has failed to do so. Consistent with the [JOD], the [c]ourt has reviewed the matter after the four (4) month period and finds that the support provisions should [be] trigger[ed] since the [d]efendant has failed to meet the financial obligations that were considered when the [JOD] was entered. Defendant shall pay spousal support in the amount of $375.00 per week and child support in the amount of $286.00 per week through [c]hild [s]upport [p]robation via wage execution, effective October 23, 2009. Spousal support arrears shall be set at $2,450.00 and child support arrears at $2,002.00, given the retroactive application.
The parties executed a deed-in-lieu of foreclosure agreeing to surrender the marital home by February 15, 2010. Plaintiff vacated the marital home and moved into her boyfriend's residence.
On August 27, 2010, defendant filed a motion seeking the children's emancipation or alternatively, termination of his child support obligation because the children had been residing with him since February 11, 2009. Defendant also requested arrearages be vacated maintaining he was never served with plaintiff's prior motion because she mailed them to his parents' home in Delaware, even though she knew he was living in the former marital home. He certified he saw plaintiff regularly, but she never mentioned the motions and he only learned of the ordered obligations when he received a noncompliance notice. Defendant's motion included a request to terminate alimony because plaintiff had been living with her boyfriend since December 4, 2009. Finally, defendant asserted plaintiff had unreported income working as a hairdresser, that she used his share of the rental income to satisfy her car payment, and they agreed to surrender the marital home to the mortgagee because they could not afford it.
Plaintiff responded, objecting to the relief defendant sought and disputing his factual assertions. She filed a cross motion for discovery, recalculation of child support, seeking control of the rental and sale of the Burke Avenue property, and enforcing the prior orders for support. Plaintiff maintained defendant moved from the marital home on June 18, 2007, and told her to send his mail to his parents' home. She admitted she lived with her boyfriend out of necessity when forced from the marital home because of the foreclosure. Plaintiff disputed defendant's claim regarding their younger child, stating he lived with her and was about to attend college. She also refuted defendant's claims she had unreported income and that he paid any bills as ordered.
Although some issues could be determined based on the extensive pleadings, the motion judge identified numerous factual disputes that required testimony. The motion judge rejected plaintiff's claims that their younger child was embarking on a college career and ordered both children emancipated, effective July 16, 2010, and September 9, 2010, with a corresponding modification and termination of child support. Defendant was ordered to pay $75 per week towards the accumulated child support arrearages, subject to further order.Additionally, the judge ordered the scheduling of a plenary hearing to unravel the financial disputes, including the effect of plaintiff's cohabitation, the date the children began residing with defendant, the amount of arrearages, and the amount of defendant's support obligation. Pending the hearing, defendant's alimony obligation was decreased without prejudice to $200.00 per week, along with $25.00 per week towards arrears.
Beginning July 16, 2010, child support was reduced from $286 to $175 until September 9, 2010, when the obligation was terminated.
Documentation in the record suggests the combined child support and alimony arrearages totaled $38,889.56 as of September 29, 2011.
In reviewing plaintiff's cross-motion, the court granted her exclusive possession and control of the Burke Avenue property, which she was to "aggressively take steps to sell or rent" and was granted discovery, as follows:
Plaintiff's request to require the [d]efendant to supply his complete income tax returns with all schedules and notes, etc. for the years 2007, 2008, and 2009 is hereby GRANTED IN PART. The [d]efendant shall provide his 2009 [i]ncome [t]ax [r]eturns with full schedules to the [p]laintiff within thirty (30) days of this [o]rder.Before the hearing concluded, based on defendant's claims of improper service, he stated his address, which was included in the order.
Prior to the case management conference, the motion judge was rotated to the Civil Division and the file was assigned to another Family Part judge (trial judge). The trial judge conducted the management conference ordered by the motion judge. Plaintiff was again represented by counsel and defendant continued to be self-represented.
Defendant had provided some financial information to plaintiff's counsel, including a tax return for 2009, reflecting a net income of less than $5000. We also note, defendant's prior certifications contained his assertion he was not required to file tax returns for 2007 or 2008 because he did not meet the required income threshold for filing. Further, plaintiff's certification included a reconciliation of the rental income and expenses for the years 2008 to 2010. Plaintiff's counsel explained the disclosures were insufficient and suggested both parties supply updated case information statements with all necessary attachments. The following colloquy occurred:
[PLAINTIFF'S COUNSEL]: [The motion judge] lowered the alimony without prejudice based on cohabitation by my client and based on Mr. Milward's allegation that he made a whopping $4,600 . . . in 2009.
He was . . . to provide a signed, dated income tax return, which he did do.
When he first filed the motion, he filed a worksheet. Then he dropped something in my office that has marked all over it "Not for filing." It's not signed. It is not dated. And I would suspect it was never even filed with the IRS.
So we have -- part of what I would like, since we are going to have the alimony issue as part of the plenary hearing, I would like both sides to be required to file updated [c]ase [i]nformation [s]tatements and attach --
THE COURT: But I can't even hear the motion without that happening.
[PLAINTIFF'S COUNSEL]: That's right, for the plenary.
THE COURT: Now, what I'm going to need for the plenary on this issue, I'm going to need the last [c]ase [i]nformation [s]tatement filed by each party. And I'm going to need an updated [c]ase [i]nformation [s]tatement. And as part of the updated [c]ase [i]nformation [s]tatement, tax returns and filings that have been made over the last three years and any current income information. Okay?
[Defendant]: Well, I didn't (inaudible).
THE COURT: Okay. Let me understand this. This is a conference date today. And thee [sic] dates have been previously scheduled for court. That we're due for another conference on November 12.
. . .
Okay. So when it's about a support issue, you understand, sir, if you're wrong on this, there's going to be a heck of an attorney fee coming. You better make sure you're right on what you're saying.
[Defendant]: Right as far as what, Your Honor?
THE COURT: Well, what you're saying are the facts of your employment, although they had better be the facts.
[Defendant]: They are the facts, yeah.
THE COURT: Then you've got no problem.
[Defendant]: And what I -- I'm sorry?
THE COURT: Then you have no problem. But I'm telling you what's being built up here is if they're able to prove on December 14 that, in fact, you've been less than truthful on these issues --
[Defendant]: No. It's absolutely the truth.
THE COURT: I'm not asking for a response. I'm telling you what your -- what the issues are for me at the end.
If, in fact, I find out that, in fact, that they're not as you're saying, then there's going to be a heck of an attorney fee issue.
And if you don't respond appropriately with what I'm going to give you as an [o]rder today as a date -- it's an attorney fee issue. Because somebody's spending money here. I know [plaintiff's counsel]. Somebody's spending a lot of money to have me sit here today and it better be for a good reason. Okay?
[Defendant]: Yes, Your Honor. Now, you had stated that you wanted me to submit three years back -- three years?
Now, my understanding is I had to submit 2009 and that was it. Why are we going back three years?
THE COURT: Because you're filing -- the motion has been filed by both of you dealing with custody, emancipation and with issues--
[Defendant]: The arrears as well, right?
THE COURT: Exactly. And that three years is the normal look-back. And I'm requiring [p]laintiff and the [d]efendant to submit prior [c]ase [i]nformation [s]tatements that were filed.
Both of you must submit them. Don't think I have them because I'm not going through this file. You need to submit prior [c]ase [i]nformation [s]tatements that were filed.
[Defendant]: That was just recently filed with the last motion.
. . . .
[PLAINTIFF'S COUNSEL]: And the new one.
THE COURT: And then I want up-to-date [c]ase [i]nformation [s]tatements as of today with three prior years income tax with supporting documents --
. . . .
[Defendant]: Well, that's what I submitted to --
THE COURT: . . . I need it again. And current income W-2s or statements. For both parties you'll submit prior [c]ase [i]nformation [s]tatements and all supporting documents and up-to-date [c]ase [i]nformation [s]tatements as of . . . November 12 . . . .
As the dialogue continued, defendant suggested he had no prior obligation to make payments because he had not received plaintiff's motion. The trial judge responded:
THE COURT: That's where you're wrong. If there's an [o]rder --
. . . .
-- you make payments. If you don't like the payments, you bring a motion to change. . . .
[DEFENDANT]: That's what I did, Your Honor.
. . . .
I had no idea that I even had to make payments until Salem County Probation --
THE COURT: I don't buy that, sir. Don't even argue that. I'm not going to buy it.
All right. So what is the other issue besides spousal support and custody and emancipation?
An order resulting from the conference scheduled a second case management conference and the plenary hearing. Defendant was ordered to inform plaintiff's counsel if he desired to challenge the dates of the children's emancipation. Further, the order provided:
(3) Issue of correct [s]pousal [s]upport and [a]rrears will be subject of plenary [h]earing/trial. Parties to exchange by [November 12, 2010] copies of prior CIS statements filed w[ith] supporting documents. Also to supply current CIS w[ith] supporting documents and [three] years prior tax returns. Also current (2010) income statements and supporting documents.
(4) Issue of [h]ouse credits to be subject of [p]lenary [h]earing/trial. Parties to exchange any and [a]ll proofs to be submitted [a]t [h]earing by [November 12, 2010], to include photos, invoices, etc. Defendant left house on [September 12, 2010].
(5) Issue of [c]ounsel [f]ees to be subject of [p]lenary [h]earing.
The following month, a second case management conference was held. Defendant had not submitted the documents delineated in the prior case management order. He was told to do so before the hearing.
The record contains neither a transcript nor an order from this hearing.
On December 14, 2010, the parties appeared, and both were accompanied by counsel. Also, the parties' children were present to testify on the issues surrounding their residence and emancipation.
The trial judge called the matter at 2:29 p.m. and advised he was leaving "in about five minutes" for the swearing-in ceremony for the law clerks and would return thereafter. He then stated he had reviewed the prior order addressing the exchange of information and reiterated a hearing would not be held without the information he deemed "necessary for me to make the determination[.]" Because defendant had not submitted the documents, the trial judge declared defendant had "forfeited his right to a plenary hearing." After plaintiff conceded she would not challenge the order tentatively reducing alimony to $200 per week, the court made the temporary adjustment permanent, stating:
(1) The defendant has failed to supply any of the submissions required by the Oct[ober] 5, 2010 order.Defendant filed an appeal.
(2) The defendant has forfeited his right to a plenary hearing.
(3) Defendant's application for [a] decrease or termination of spousal support [is] denied. Spousal support to continue as per [c]ourt [o]rder dated Aug[ust] 27, 2010.
(4) Defendant's application to modify child support arrears based on where parties' [younger child] was residing is denied for failure to supply documentation.
(5) Plaintiff's request for counsel fees is reserved.
Additional enforcement motions were filed by plaintiff, including an application to remove defendant's name from the title to the Burke Avenue property and to reallocate any anticipated proceeds from sale. The trial judge initially denied relief without prejudice, but following a second motion for enforcement found defendant had not complied with prior orders and entered further sanctions. Defendant amended his notice of appeal to include the court's August 5, 2011 order.
We denied plaintiff's motion to exclude the August 5, 2011 order because the two orders on appeal are germane to each other.
II.
"A trial court has inherent discretionary power to impose sanctions for failure to make discovery, subject only to the requirement that they be just and reasonable in the circumstances." Calabrese v. Trenton State Coll., 162 N.J. Super. 145, 151-52 (App. Div. 1978), aff'd, 82 N.J. 321 (1980). A decision to impose discovery sanctions is reviewed under the abuse of discretion standard. Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995). While this "standard defies precise definition, it arises when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigr. & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). Also, an imposed sanction represents a misapplication of discretion when it is found to "be 'an arbitrary, capricious, whimsical, or manifestly unreasonable judgment.'" Ibid. (quoting Coletti v. Cudd Pressure Control, 165 F.3d 767, 777 (10th Cir. 1999)).
"In assessing the propriety of a sanction, we recognize that 'apart from any specific provisions of the discovery rules, an inherent authority empowers our courts to impose sanctions for . . . [blatant violations] of the spirit of those rules.'" Cavallaro v. Jamco Prop. Mgmt., 334 N.J. Super. 557, 571 (App. Div. 2000) (alterations in original) (quoting Summit Trust Co. v. Baxt, 333 N.J. Super. 439, 450 (App. Div.), certif. denied, 165 N.J. 678 (2000)). We "abstain from interfering with those discretionary decisions unless an injustice has been done." Ibid.
When litigants "fail[] to make discovery," the court has an "arsenal of remedies" available from which it can choose. Casinelli v. Manglapus, 181 N.J. 354, 365 (2004). Rule 4:23-2(b) provides:
(b) . . . If a party . . . fails to obey an order to provide or permit discovery, . . . the court . . . may make such orders in regard to the failure as are just, and among others the following:
(1) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the introduction of designated matters in evidence;
(3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof with or without prejudice, or rendering a judgment by default against the disobedient party;
(4) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders.
In lieu of any of the foregoing orders or in addition thereto, the court shall
require the party failing to obey the order to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
"In each case, the court should assess the facts, including the willfulness of the violation, the ability of [the party to produce the discovery at issue], the proximity of trial, and prejudice to the adversary, and apply the appropriate remedy." Casinelli, supra, 181 N.J. at 365.
In certain circumstances, courts are authorized to impose the ultimate sanction of dismissal. See R. 4:23-5(a). However, the Court has cautioned trial courts must not use this sanction in the first instance, stating:
In respect of the ultimate sanction of dismissal, this Court has struck a balance by instructing courts to impose that sanction only sparingly. The dismissal of a party's cause of action, with prejudice, is drastic and is generally not to be invoked except in those cases in which the order for discovery goes to the very foundation of the cause of action, or where the refusal to comply is deliberate and contumacious. Since dismissal with prejudice is the ultimate sanction, it will normally be ordered only when no lesser sanction will suffice to erase the prejudice suffered by the non-delinquent party, or when the litigant rather than the attorney was at fault. Moreover, the imposition of the severe sanction of dismissal is imposed not only to penalize those whose conduct warrant it, but to deter others who [might] be
tempted to violate the rules absent such a deterrent.
The scarcity of cases ordering dismissal demonstrates that trial courts have heeded our admonition to impose sparingly the ultimate sanction of dismissal.
[Abtrax, supra, 139 N.J. at 514-15 (alteration in original) (internal quotation marks and citations omitted).]
The imposition of discovery sanctions, especially severe sanctions, brings to bear the "traditional conflict between judicial efficiency and substantive justice[,]" and courts must guard against "striking an improper balance" between these two objectives. Georgis v. Scarpa, 226 N.J. Super. 244, 247 (App. Div. 1988).
Our primary focus in the administration of justice is the delivery of quality justice; the elements of which are: (1) adequate pretrial preparation and a fair trial, which in effect is due process; (2) expeditious disposition, and (3) economically effective operation. The court must balance these elements and never favor the latter two above the first, fair play.In other words,
[Id. at 254.]
[e]agerness to move cases must defer to our paramount duty to administer justice in the individual case. Expedition, . . . must supplant languor, but never at the expense of justice.See also Parish v. Parish, 412 N.J. Super. 39, 54 (App. Div. 2010) ("Any discretionary exercise of the extreme remedy of enjoining or conditioning a litigant's ability to present his or her claim to the court must be used sparingly; it is not a remedy of first or even second resort.").
. . . Until courts have exhausted means of performing their shepherding function which
do not terminate or deeply affect the outcome of a case, they ought not to bar a litigant's way to the courtroom.
[Audubon Volunteer Fire Co. No. 1 v. Church Constr. Co., 206 N.J. Super. 405, 406-07 (App. Div. 1986) (internal quotation marks and citations omitted).]
III.
Following the August 2009 cross-motions, the motion judge determined defendant had made a prima facie showing that there were genuine issues of material fact to be resolved necessitating a plenary hearing regarding the effect of plaintiff's admitted cohabitation on the level of alimony; whether the arrearages required adjustment because of the change in plaintiff's and the children's living arrangements; and whether the parties experienced a change in financial circumstances warranting a future adjustment of support. The order required defendant to produce only his 2009 income information. Defendant complied with this order.
At the case management conference, the trial judge expanded the scope of mandated discovery. When defendant failed to supply this information, the court entered the December 14, 2010 order and declined to proceed with the plenary hearing as scheduled.
We take no issue with a trial judge's authority to expand the scope of discovery following a case management conference. See R. 5:5-7(b) (providing that a case management order shall fix discovery schedules in standard cases). However, the record is not clear why the additional financial information was ordered to be produced, other than it was requested by plaintiff's counsel.
Plaintiff had not served interrogatories or a notice to produce. Moreover, the trial judge did not question the basis for the requested information. When defendant questioned the basis for requiring the additional discovery, the trial judge offered none, except to suggest "three years is the normal look-back." The trial judge has an obligation to make findings of facts supporting the provision of the order. See Rule 1:7-4(a) (stating factual findings and conclusions of law shall be made "on every motion decided by a written order that is appealable as of right").
More important, we cannot sustain the trial judge's exercised discretion in vacating the plenary hearing when defendant failed to fully comply with the expanded discovery order along with the determination that defendant had "forfeited his right to a plenary hearing." As we understand the issues to be tried, the recalculation of support would be the last step, reached only if defendant's proofs of changed circumstances resulting from plaintiff's cohabitation were borne out by his proofs. Many disputes needed to be determined that were unrelated to the income information requested by plaintiff's counsel.
Most of the material facts certified to in each party's pleadings were in direct conflict. The facts and circumstances needed to be determined before the court could evaluate the parties' competing requests for relief. Both parties claimed they had custody of the parties' youngest child and both asserted their residence as the former marital home. Defendant maintained he and plaintiff had agreed his share of rental income would satisfy her car payment and they mutually accepted that they could not continue to carry the costs of the marital home and surrendered it to the mortgagee. Defendant alleged plaintiff's cohabitation commenced almost a year before the foreclosure, at which time the children began to live with him and he was never served with plaintiff's motion to establish support. Finally, he asserted support needed to be reviewed because plaintiff's income had increased while his decreased.
Plaintiff argued she resided in the marital home until it was surrendered and defendant told her he lived with his parents. She contended the youngest child continued to live with her, at her boyfriend's home, and was bound for college. As to income, she rejected defendant's contentions that he had no money and certified she had no unreported income. Plaintiff suggested she was forced to accept her boyfriend's offer of housing because she had insufficient funds to obtain an alternate place to live.
In light of these stark disagreements over issues large and small, we understand the motion judge's order for a plenary hearing was designed to address whether plaintiff's cohabitation required a reduction in alimony or caused the children's change of residence obviating plaintiff's receipt of child support. Intertwined with these questions would be the need to determine the date cohabitation commenced and whether plaintiff's defense that she was forced to move because of the defendant's nonpayment, obviated defendant's request for modification. Once the facts and circumstances were sorted out, if necessary a new order for alimony and arrearages would be fixed using the parties' current incomes.
The principal issues related to the consequences of plaintiff's admitted cohabitation. In the face of plaintiff's admission, a trial court must discern whether changed circumstance result from the new living arrangement such that modification of a prior alimony award is warranted because the cohabitant "subsidizes" the dependent spouse's needs. Boardman v. Boardman, 314 N.J. Super. 340, 347 (App. Div. 1998). Once a prima facie case of cohabitation is established, a rebuttable presumption is created and "[t]he burden of proof . . . shifts to the dependent spouse[,]" Ozolins v. Ozolins, 308 N.J. Super. 243, 248-49 (App. Div. 1998), "to address the economic consequence of the relationship in order for the [c]ourt to make an appropriate assessment regarding a modification or termination of alimony." Conlon v. Conlon, 335 N.J. Super. 638, 650 (Ch. Div. 2000).
Here, plaintiff's challenge asserted defendant's disregard of the prior support orders should not change the alimony award. That defense called into question the commencement of cohabitation and whether defendant was served with the prior motions. Similarly, whether and when the children began living with defendant did not require a review of defendant's income. These subjects do not touch on defendant's past or current income, yet the trial judge concluded his failure to supply documentation in this regard warranted a closure of the courthouse doors. Counsel for defendant attempted to explain this point, but was cut short by the judge who stated, "I told you before, . . . this wasn't going to proceed without having all the information."
We question the court's comments suggesting all matters would be concluded that day in light of the announcement that the Judge was leaving in five minutes and did not state the length of time he would be attending to another obligation.
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Once the court concluded defendant's omission was negligent or even willful, it could have limited defendant's right to introduce evidence that his income deviated from that recorded in the JOD. Such a sanction, permitted by Rule 4:23-2(b)(1), would not obviate the need to determine whether plaintiff's motion was properly served, whether cohabitation eliminated plaintiff's need for alimony, or whether the children lived with defendant or were emancipated prior to the date determined by the motion judge.
Under these circumstances, employing an ultimate sanction tantamount to dismissal and denying all relief, without consideration of alternatives available in the "arsenal of remedies" was neither just nor reasonable. Calabrese, supra, 162 N.J. Super. at 151-52.
We also conclude the trial judge's order disregarded the court's obligation to protect due process, requiring he "assess the facts, including the willfulness of the violation, the ability of [the party to produce the discovery at issue], . . . and prejudice to the adversary," when evaluating a remedy to appropriately address defendant's noncompliance. Casinelli, supra, 181 N.J. at 365. The court never inquired as to reasons for defendant's failure to comply or weighed the prejudice to plaintiff. As noted above, the omission could have been addressed in a way that preserved and protected all parties' fundamental right to obtain a determination of their disputes. See Parish, supra, 412 N.J. Super. at 54 ("The business of the courts is to finalize disputes.").
Also disconcerting is the trial judge's rebuff of defendant's claims of improper service. The reproof, "I don't buy that, sir. Don't even argue that[,]" predetermined a critical issue on a record that was not irrefutable.
It is . . . fundamental that the court system is obliged to protect the procedural rights of all litigants and to accord procedural due process to all litigants. What constitutes due process varies with the circumstances of each case as well as with the individual situation of particular litigants. It is also axiomatic that pro se litigants are entitled to no less a degree of procedural solicitude than are represented litigants.
[Rubin v. Rubin, 188 N.J. Super. 155, 159 (App. Div. 1982).]
We do not assess the merits of defendant's position on this issue and recognize plaintiff's certification and documentation strongly refute defendant's claims. Yet, defendant properly raised this matter in his initial August 2009 pleadings and should have been permitted to present his proofs. The conflict, influenced by determinations of credibility, can be determined only by evidence produced during a plenary hearing. See Barblock v. Barblock, 383 N.J. Super. 114, 122 (App. Div.) (stating "[t]he credibility of the parties' contentions may wither, or may be fortified, by exposure to cross-examination and through clarifying questions posed by the court" in a plenary hearing), certif. denied, 187 N.J. 81 (2006).
We appreciate the practical difficulties facing Family Part trial judges who preside over emotionally-charged cases involving self-represented litigants. Nevertheless, the trial judge's determination in this matter, denying defendant the opportunity to be heard on all claims because of a violation of ordered discovery relating to only some contested claims, constituted error. Lesser sanctions should have been employed once the court established the facts surrounding why defendant had not complied.
IV.
The December 14, 2010 order and those provisions of the May 27, 2011 order enforcing its terms must be reversed. The matter is remanded to the Family Part for a plenary hearing, consistent with the August 19, 2009 order and this opinion.
Reversed and remanded.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION