Opinion
DOCKET NO. A-4353-13T1
11-06-2015
ELIZABETH VANDER PLOEG, Plaintiff-Appellant, v. JAMES VANDER PLOEG, Defendant-Respondent.
Joseph DiPiazza argued the cause for appellant (Lesnevich & Marzano-Lesnevich, L.L.C., attorneys; Madeline Marzano-Lesnevich, of counsel; Mr. DiPiazza, on the brief). Harold P. Cook, III, argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Koblitz and Gilson. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1861-11. Joseph DiPiazza argued the cause for appellant (Lesnevich & Marzano-Lesnevich, L.L.C., attorneys; Madeline Marzano-Lesnevich, of counsel; Mr. DiPiazza, on the brief). Harold P. Cook, III, argued the cause for respondent. PER CURIAM
Plaintiff Elizabeth Vander Ploeg appeals the final and amended final judgment of divorce, and related orders, entered following a trial where plaintiff was precluded from presenting evidence because her pleadings had been stricken for failure to comply with discovery. The record establishes that there was an insufficient basis for the drastic remedy of striking plaintiff's pleadings and only partial compliance with the requirements mandated by Rule 4:23-5. Consequently, we reverse and remand for completion of discovery and a new trial.
I.
Plaintiff and defendant James Vander Ploeg were married in 1989. On February 14, 2011, after 22 years of marriage, plaintiff filed for divorce. The parties have two children, a son, who is emancipated, and a daughter, born in 1998. The daughter has lived with plaintiff since the parties separated in 2011.
The divorce litigation was contentious. Both parties resisted providing discovery and both parties filed motions to compel discovery and accused each other of violating court orders. A significant portion of the pre-trial disputes centered on plaintiff's efforts to obtain pendente lite support and both parties' efforts to compel discovery from the other party.
Early in the litigation, plaintiff filed for and obtained an order compelling defendant to pay over $10,000 per month in pendente lite support. Plaintiff maintained that during the marriage, defendant had been the primary economic supporter of the family, that he made in excess of $100,000 per year, and that he owned and operated his own business, J-Lex Mechanical Contractors, LLC. Plaintiff also contended that defendant had other business interests that held assets worth more than one million dollars.
Defendant asserts that his business lost its major customer and, as a consequence, in August 2012, his business J-Lex Mechanical Contractors, LLC filed a voluntary petition for Chapter 7 bankruptcy. The parties' divorce litigation was stayed during that bankruptcy proceeding. Plaintiff contends that the circumstances surrounding the bankruptcy were never fully disclosed or explored during discovery. For example, plaintiff asserts that in the same month that the bankruptcy petition was filed, defendant, together with his sister and the parties' son, formed a new company, J-Lex Management Group. Thus, plaintiff believes that defendant continues to receive income from other business sources.
In October 2013, during the course of the litigation, defendant was injured in a work-related accident. Defendant contends the accident left him permanently disabled and unable to work. Defendant applied for and, in December 2013, began receiving Social Security disability benefits of $2,192 per month.
From the time that the first pendente lite support order was entered in August 2011, defendant contended that he could not afford to pay that support. Beginning in 2011, defendant fell behind in paying the support. Over the next two years, there were a series of motions to enforce or reduce the pendente lite support. At one point, defendant was incarcerated for his failure to pay support. Eventually, in August 2013, defendant was successful on a motion to reduce the amount of pendente lite support to $160 per week and to stay enforcement of his support obligations. By that time, however, plaintiff contends defendant owed plaintiff over $194,000 in support arrears.
There were also discovery disputes during the divorce litigation. In 2011, defendant filed a motion to compel plaintiff to turn over certain documents, passcodes and access codes. The court granted, in part, that motion. In July 2012, plaintiff filed a motion to strike defendant's pleadings for failure to provide discovery. Plaintiff alleged defendant: (1) failed to appear for his deposition on two occasions; (2) did not answer interrogatories; and (3) did not respond to document demands. The court denied plaintiff's motion.
The divorce action was originally listed for trial in September 2012. The court adjourned the trial date in response to defendant's business's ensuing bankruptcy petition. When the case was reactivated, the parties continued to have discovery disputes. For example, in October and November 2013, counsel for plaintiff sent letters to defendant's counsel requesting outstanding discovery. Defendant, likewise, sought to take plaintiff's deposition, contending that she had control over much of the information concerning the parties' financial situation during their marriage.
Of particular note to this appeal, on October 28, 2013, the family court entered an order directing plaintiff to appear for her deposition on October 30, 2013. That order was apparently entered following a case management conference, where counsel for both parties appeared. On October 29, 2013, plaintiff's counsel wrote to defendant's counsel and stated that plaintiff would not appear for her deposition because she would be meeting with experts in preparation for trial, which at that time was scheduled to begin on November 12, 2013. Plaintiff's then counsel also wrote to defendant's counsel requesting the production of outstanding discovery from defendant. Plaintiff failed to appear for her court-ordered deposition on October 30, 2013.
At that same time, plaintiff and her then counsel had a breakdown in their relationship. On October 30, 2013, plaintiff's then counsel filed an order to show cause to be relieved as counsel for plaintiff. That attorney was the third attorney to represent plaintiff in this divorce action. The family court scheduled that application to be heard on November 8, 2013.
On November 4, 2013, counsel for defendant sent a letter to the family court informing the court of plaintiff's failure to appear for her deposition and requesting an order striking plaintiff's pleadings. Along with that letter, counsel submitted an attorney certification and a proposed order. On November 7, 2013, then counsel for plaintiff sent the family court a letter opposing defendant's application and pointed out that defendant still owed discovery to plaintiff.
On November 14, 2013, the family court entered an order relieving plaintiff's then counsel. That same day, the law clerk to the judge sent a letter to defense counsel stating:
I am in receipt of your Certification in Support of Plaintiff's Order to Show Cause. In regards to your request to strike Plaintiff's pleadings, we cannot address this application because you must file a motion under [Rule] 4:23-5(a).A copy of that letter was sent to plaintiff.
We note this letter was signed by the judge's law clerk. When the official letterhead of the court is used to communicate with counsel or the litigants, the better practice is for the judge to sign the letter. Any communications from the law clerk using the court's official letterhead should make clear that instructions to counsel or the litigants are coming from the judge.
On November 26, 2013, defendant's counsel filed a notice of motion to strike plaintiff's pleadings. The notice was accompanied by a certification of defendant's counsel and a proposed form of order. Plaintiff, then self-represented, filed no opposition. On December 20, 2013, the family court entered an order stating: "The pleadings of the Plaintiff, Elizabeth Vander Ploeg are hereby stricken and are [of] no force and effect." That order was the form of order submitted by counsel for defendant. There was no oral argument or hearing concerning the motion. The record contains no oral or written fact-findings, opinions, or statement of reasons concerning the December 20, 2013 order.
The trial in the divorce action was conducted on March 24, 2014. Defendant appeared with counsel, and defendant testified and submitted evidence. Defendant's brother, Joseph Vander Ploeg, also appeared with counsel and gave testimony. Plaintiff appeared, self-represented, but because her pleadings had been stricken, she was not permitted to testify or submit evidence. Plaintiff was allowed to ask questions of defendant and of his brother, but she informed the family court that she was not prepared to ask questions because she was self-represented.
Following the one-day trial, on April 17, 2014, the family court entered a judgment of divorce, accompanied by a written statement of reasons. The judgment of divorce directed defendant to prepare and submit an amended judgment of divorce incorporating the court's rulings as set forth in the statement of reasons. Among other things, the amended judgment of divorce:
1. Awarded no alimony, because the family court found that defendant was disabled and only receiving Social Security disability benefits in the yearly amount of just over $26,000, while plaintiff, who was unemployed, had the imputed ability to earn approximately $25,000 per year;
2. Granted the parties joint legal custody of their daughter, designated plaintiff as the parent of primary residential custody, and ordered defendant to pay $100 per week in child support;
3. Retroactively adjusted child support, effectively eliminated thousands of dollars defendant owed in support arrears and gave defendant a credit of over $44,500 for "overpayment" of child support; that overpayment was to be paid from equitable distribution otherwise due to plaintiff;
The record does not show the full extent of defendant's arrears. Plaintiff claims they exceeded $194,000 when defendant's pendente lite obligations were modified on August 5, 2013. --------
4. Found certain real property to be a premarital asset belonging to defendant and not subject to equitable distribution;
5. The real property jointly owned by the parties, including their marital home, was to be sold or transferred in kind and the proceeds to be equally distributed to plaintiff and defendant;
6. Found that New York Giants personal seat licenses purchased by the parties during their marriage were intended as a gift to their son and, therefore, they were not subject to equitable distribution; and
7. Awarded defendant $5,000 in attorney's fees.
As part of the trial on March 24, 2014, the family court also addressed a civil action that had been filed by defendant's brother, Joseph Vander Ploeg. That civil action alleged that Joseph and defendant jointly owned Riverside Realty, LLC ("Riverside"), which in turn owned real properties. Joseph claimed defendant and plaintiff owed him $462,500 in connection with Riverside. The civil action had been consolidated with the divorce action prior to trial. Thus, on March 24, 2014, Joseph and his attorney also appeared and Joseph gave testimony about his claims. The family court judge ruled that Joseph proved the debt in the amount of $462,500, and that only defendant was responsible for that debt. The family court did not address whether the real properties held in Riverside were marital assets. Plaintiff claims on appeal that one of the properties owned by Riverside is a home that the parties purchased in 2006. Plaintiff also claims that defendant currently lives in that home with the parties' son and defendant's new girlfriend and that the home is worth more than one million dollars. Defendant, in contrast, asserts that he "gave up" his interest in Riverside "to be relieved of the outstanding loans" of Riverside.
On May 7, 2014, the family court also entered an order directing that the real property jointly owned by the parties was to be listed for sale. That order appointed real estate agents for the sale and appointed those agents as "attorney-in-fact" for plaintiff in connection with the listing and sale of the properties. The properties covered by that order included (1) the marital home; (2) a property located in Prospect Park, New Jersey; and (3) two time shares in Aruba.
Plaintiff contends that she and her daughter still live in the marital home. Defendant asserts that plaintiff has failed to pay the mortgage on the marital home and, while the home still has equity, it is subject to foreclosure. Defendant also asserts that the IRS has liens on the parties' assets and his disability payments and that those liens are in connection with debts of over $127,000 arising from the parties' failure to pay all income taxes during their marriage.
II.
On appeal, plaintiff, now represented by legal counsel, argues: (1) the family court abused its discretion by striking plaintiff's pleadings and not allowing her to present evidence, witnesses or testify at the divorce trial; and (2) the family court abused its discretion by failing to use its equitable powers in striking plaintiff's pleadings. Plaintiff also argues that the resulting judgment of divorce was unfair because she was not allowed to participate meaningfully in the proceedings to dissolve her marriage and because there are a number of questionable rulings concerning alimony and equitable distribution. Defendant, in opposition, contends that plaintiff failed to cooperate in discovery throughout the course of the litigation and that she created her own problems in not getting along with any of the three different lawyers who represented her. Defendant then argues that the Family Part acted within its authority in striking her pleadings and that the resulting judgment of divorce was fair.
Generally, an appellate court accords a reasonable amount of discretion to a trial court, particularly when the trial court addresses issues related to discovery. Wilson v. Amerada Hess Corp., 168 N.J. 236, 253 (2001). Moreover, given the Family Part's special expertise in matrimonial and family disputes, appellate courts accord particular deference to the factual determinations of the trial judges hearing such cases. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). An appellate court "will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citations omitted). An appellate court, however, owes no special deference to a Family Part judge's conclusions of law, which we review de novo. See Manalapan Realty L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
When it comes to striking a party's pleadings with prejudice, "meticulous attention" to the rules of court are required. See Zimmerman v. United Servs. Auto. Ass'n, 260 N.J. Super. 368, 376-77 (App. Div. 1992). That meticulous standard is rooted in several well-established principles of justice. First, the goal of litigation is to afford all parties a fair hearing that resolves the "disputes on the merits." See St. James AME Dev. Corp. v. City of Jersey City, 403 N.J. Super. 480, 484 (App. Div. 2008). Second, as a matter of policy, the general preference is to address disputes on the merits and reserve the ultimate sanction of suppression of pleadings or dismissal of a cause of action with prejudice for matters in which lesser sanctions have proven to have been ineffective or inadequate. Kent Motors Cars, Inc. v. Reynolds & Reynolds, Co., 207 N.J. 428, 447 (2011) (citing Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 514 (1995)).
A party's failure to submit to a deposition subjects that party to the striking of his or her pleadings under the procedures established in Rule 4:23-5. Fik-Rymarkiewicz v. Univ. of Med. & Dentistry of N.J., 430 N.J. Super. 469, 480-81 (App. Div.), certif. denied, 214 N.J. 118 (2013). Rule 4:23-5 has a two-step procedure before pleadings can be stricken with prejudice. First, a party must move for dismissal without prejudice. R. 4:23-5(a)(1). Second, the non-compliant party has sixty days to cure and move to vacate the dismissal order. R. 4:23-5(a)(2). Only after the opportunity to cure has expired, can the moving party then move for an order striking a non-compliant pleading with prejudice. Ibid. The rule, moreover, has a number of procedural requirements. See R. 4:23-5(a)(3).
In moving for an order of dismissal without prejudice, the moving party must, among other things: (1) file an affidavit; (2) state that the moving party is not in default in any discovery obligations owed to the delinquent party; and (3) represent that the moving party has conferred with the delinquent party in a good faith effort to resolve the dispute. R. 4:23-5(a)(1) and (3). See generally R. 4:23-5(a)(3) (incorporating by reference the requirements of R. 1:6-2(c)). Upon issuance of the order of dismissal without prejudice, that order must be served on the delinquent party with notice of the consequences of not curing the discovery problem. R. 4:23-5(a)(1); see also St. James AME Dev. Corp., supra, 403 N.J. Super. at 483-84 (citing R. 1:5-1). If the delinquent party is represented by counsel, that counsel is responsible for effectuating service. R. 4:23-5(a)(1). If the delinquent party is self-represented, counsel for the moving party must serve the party. Ibid.
In moving under step two for dismissal with prejudice, additional procedural requirements attach. Those include: (1) the moving party must wait sixty days to give the non-compliant party an opportunity to cure the defect; and (2) the moving party must then file a separate second motion providing specific notice to the delinquent party. R. 4:23-5(a)(2).
We have previously explained:
[A]chievement of the salutary scheme of the . . . rule requires meticulous attention to its critical prescriptions, and particularly to those provisions which are intended to afford a measure of protection to the party who is faced with the ultimate litigation disaster of termination of his [or her] cause.The reason for that strict adherence to procedure is that Rule 4:23-5 is designed to compel discovery rather than dismiss pleadings. Adedoyin v. Arc of Morris Cty. Chapter, Inc., 325 N.J. Super. 173, 180 (App. Div. 1999).
[Zimmerman, supra, 260 N.J. Super. at 376-77.]
In this case, some of the most important procedural requirements called for under Rule 4:23-5(a) were not satisfied. Defendant initially sought to strike plaintiff's pleadings by submitting a letter. Such a letter obviously is not permitted by the rules. See R. 1:6-2 (explaining the proper form of motions). After receiving direction from a law clerk, defendant filed a motion and a certification of counsel, together with a proposed form of order. The certification of counsel, however, failed to (1) state that defendant does not owe any discovery to plaintiff, or (2) represent that defendant had consulted with opposing counsel. Both those procedures are required under Rule 4:23-5(a)(1) and (3). Indeed, the record establishes that defendant was delinquent in producing discovery when he moved to strike plaintiff's pleadings.
Most critically in the context of this case, defendant failed to serve the order, and notice on how to cure, on plaintiff, who was then self-represented. Moreover, defendant completely failed to comply with the second step of Rule 4:23-5(a)(2). Indeed, in this case there was no second step. The December 20, 2013 order does not state that it is with or without prejudice. Generally, when an order fails to say that it is with prejudice, it is deemed to be without prejudice. See Sullivan v. Coverings & Installation, Inc., 403 N.J. Super. 86, 93-97 (App. Div. 2008) (rejecting trial court's actions treating the dismissal as a dismissal with prejudice when only one motion under R. 4:23-5 had been made). In this case, however, both defendant and the trial court treated the December 20, 2013 order as if it was with prejudice. Critically, plaintiff was never informed of her right to cure the discovery defect and move to vacate the order. Just as critically, defendant never moved for a second order.
Defendant argues that the situation was plaintiff's own fault since she had alienated her own counsel who had moved to withdraw from representing plaintiff. Somewhat inconsistently, defendant also argues that plaintiff was not really self- represented at the time that the December 20, 2013 order was entered because her counsel was relieved after counsel for defendant had filed his initial non-compliant letter of November 4, 2013. Both those arguments miss the fundamental point. The party seeking to impose the sanctions has the obligation to satisfy Rule 4:23-5's procedural requirements to permit the court to enter an order dismissing plaintiff's complaint with prejudice. There is no provision in Rule 4:23-5 that permits shifting this burden to the delinquent party.
For example, in St. James AME Dev. Corp., we held that the moving party's failure to serve the delinquent party with the order of dismissal without prejudice precluded dismissal with prejudice because the delinquent party did not know that it was facing dismissal with prejudice. St. James AME Dev. Corp., supra, 403 N.J. Super. at 483-84; see also A & M Farm & Garden Ctr. v. Am. Sprinkler Mech., L.L.C., 423 N.J. Super. 528, 539 (App. Div. 2012) (holding that when a court considers a motion to dismiss a complaint with prejudice, and there is nothing to show that the plaintiff "has received notice of its exposure to the ultimate sanction, the court must take some action to obtain compliance with the requirements of the rule before entering an order of dismissal . . . with prejudice").
In short, because many of the required procedures of Rule 4:23-5(a) were not complied with, the order dismissing plaintiff's pleadings will be vacated.
We are cognizant of the need for trial courts to be able to control litigation and, in appropriate circumstances, sanction non-compliant litigants. Nevertheless, when such sanctions are visited, it is incumbent on trial courts to explain the reasons for such a sanction. See Klajman v. Fair Lawn Estates, 292 N.J. Super. 54, 61 (App. Div.) (holding that trial court must provide reasons when dismissing with prejudice), certifs. denied, 146 N.J. 569 (1996); see also R. 1:7-4(a). In this case, the family court never articulated any reasons for the entry of the December 20, 2013 order striking plaintiff's pleadings. Consequently, we do not know why the court believed that the ultimate sanction of striking plaintiff's pleadings was warranted as opposed to a lesser sanction.
We are also mindful that the record in this case establishes that plaintiff was not always compliant, and there are indicia that plaintiff caused a good deal of the delay in this long-pending action. The record also reflects, however, that defendant also contributed to that delay and also did not always comply with court orders. Accordingly, in such litigations, if the trial court is going to sanction one party, the court should explain, on the record or in writing, why it is sanctioning one party. In this case we have no articulated reasons for the sanction imposed. As then Judge Long noted twenty-five years ago:
[F]ailure to perform the fact-finding duty constitutes a disservice to the litigants, the attorneys and the appellate court. Meaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion. In the absence of reasons, we are left to conjecture as to what the judge may have had in mind.
[Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990) (citations omitted).]
III.
We reverse and vacate the order of December 20, 2013, the judgment of divorce filed on April 17, 2013, the amended judgment of divorce filed on May 7, 2013, the order entered on May 7, 2014, awarding defendant attorney's fees, and the separate order entered on May 7, 2014, directing the sale of the marital real properties. We remand for completion of discovery and a new trial.
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