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McAllister v. McAllister

Decided: June 15, 1967.

ELIZABETH T. MCALLISTER, PLAINTIFF-RESPONDENT,
v.
EDWARD W. MCALLISTER, DEFENDANT-APPELLANT



Goldmann, Kilkenny and Collester.

Per Curiam

[95 NJSuper Page 429] Defendant Edward W. McAllister was found guilty of criminal contempt of court for violation of an order made by Judge Consodine in the Chancery Division on January 20, 1966. He was sentenced for a term of 12 months in the Essex County Penitentiary -- one month in custody and the balance on probation. In addition to the ordinary

terms of probation, the court imposed three further conditions, hereinafter more particularly noted. Defendant appeals from the judgment of conviction of criminal contempt. We stayed the judgment pending appeal.

The order of January 20, 1966 was entered by the trial court on its own motion for the reasons expressed in the preamble thereof. As the court noted therein, defendant had burdened the court with unsought correspondence, the reading of which was time-consuming to the detriment of the rights of other litigants and to the orderly calendar of the court, and the content of which was irrelevant to the issue then presently on hearing before the court and amounted to attempts to prejudice the mind of the court by statements, conclusions and alleged facts. The then most recent correspondence of December 12 and 23, 1965 and January 10, 1966 was attached to and made part of the order. The court had warned defendant both on the record and by letter to cease and desist from this type of correspondence but, subsequent to a letter written by the court on January 4, 1966, defendant sent a communication dated January 10, 1966 -- 22 large-sized pages in length to which seven exhibits were annexed. Only a negligible part of this massive correspondence was in any way related to the issue of visitation rights then before the court.

In this same preamble to the order of January 20, 1966 Judge Consodine further noted that defendant's communications were generally repetitious and "in great portion scurrilous, scandalous, shocking, outrageous, shameful, malicious, slanderous and defamatory." This irrelevant and grossly scurrilous correspondence had continued despite the fact that prior similar correspondence had been stricken from the file by order of September 24, 1965.

Based upon the preamble recitals, the court on January 20, 1966 ordered that:

"* * * Edward W. McAllister, defendant here and appearing pro se herein, cease and desist from correspondence on any phase of the matter before this Court -- at this time his visitation rights with the

child of the marriage to plaintiff -- except in answer to correspondence from the Court and requests of the Court for legal or factual briefs in which instances his correspondence thereto will be in answer to the question raised by the Court or in the latter regard on the issue before the Court; and it is further

Ordered that no other communications, exhibits, newspaper clippings or anything else shall be mailed, sent, delivered or forwarded by Edward W. McAllister to this Court; and it is further

Ordered that in all phases of the matters before the Court in this case, now and in the future, the defendant will proceed by Notice of Motion or Order to Show Cause in accordance with the Rules Governing the New Jersey Courts."

On January 26, 1966 defendant was served with a copy of this order.

Plaintiff had obtained a final judgment of divorce against defendant on April 17, 1961. Several attempts by defendant to reverse that judgment had failed, so that its validity was beyond legal attack at the time in issue. The only proper question before the court at the time of the January 20, 1966 order was defendant's claim to greater visitation rights with the child of the marriage. Hearings on that score had been almost completed on March 15, 1966, when defendant filed a "Notice of Motion" for a change of venue, alleging an inability to get a fair hearing in Essex County where the matter was then pending. This motion was patently out of time under the rules. R.R. 4:3-3. Defendant relied upon R.R. 1:27A which deals with "Relaxation of the Rules" as a basis for his belated motion. But the lateness of the motion and the imminency of the disposition of the matter under consideration are manifested by the fact that this phase was finally argued on March 17, 1966, only two days after the Notice of Motion, and the matter was decided in a lengthy opinion by Judge Consodine on March 25, 1966. The order concerning visitation was dated and filed on March 28, 1966.

The gravamen of the charge of criminal contempt is that defendant used the form of a notice of motion, with the papers annexed thereto, to do what he had been forbidden to do by the order of January 20, 1966. To his notice of motion

of March 15, 1966 defendant had annexed a supporting affidavit and further annexed the old repetitive, irrelevant, time-consuming, scurrilous and defamatory correspondence and so-called exhibits which he had been repeatedly told not to employ, as formalized in the order of January 20, 1966.

On March 28, 1966, pursuant to R.R. 4:87-1, Judge Consodine certified that defendant's mailing to him of the notice of motion dated March 15, 1966 by special delivery with the intention that the same be delivered to him, and his receipt thereof on March 16, 1966 when hearings were pending and incomplete on the matter before the court and prior to disposition thereof, was a willful violation of the aforesaid order of January 20, 1966, "and in the actual presence of this court." The certification referred to the following papers attached to the notice of motion:

"Supporting Affidavit, four pages in length; a copy of a letter dated August 23, 1963 from a C.J. Watts to Rokos & Drucker; a copy of a one page letter dated March 1, 1966 to Governor Richard Hughes from a Stanley Sredzinski; a copy of a page of what appears to be newspaper clippings; sheet of nearly two pages entitled Ex-F and having to do with defendant's interpretation of matters before this Court several years ago, and not part of the present proceeding, and said Ex-F continued as Exhibit F for three pages thereafter; four pages of a transcript of certain testimony all of which was available to this Court; two pages of copies of letters from the infant child, Denise, to defendant which were offered and received in evidence; and nine pages of a mimeographed copy of a letter from defendant to Chief Justice Weintraub, dated March 15, 1966, and marked 'FOR IMMEDIATE RELEASE TO THE PRESS.'"

By order of March 28, 1966 defendant was directed to appear before Judge Consodine on April 7, 1966 for imposition of a sentence for criminal contempt. A copy of the certification pursuant to R.R. 4:87-1 was attached to this order. Service was made upon defendant of a copy of this order and attached certification.

On April 4, 1966 defendant wrote a letter to Judge Consodine acknowledging that he had been served on April 2 with the order to appear on April 7, stating that he was trying to

contact an attorney, and requesting a postponement of the hearing for at least two weeks. He was directed to make a motion in open court in accordance with his letter. He did so and the hearing was postponed until April 27, 1966. He appeared in court on that date with an attorney and, after a hearing at which he and his attorney were given every opportunity to be heard, he ...


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