On certification to the Superior Court, Appellate Division, whose opinion is reported at 335 N.J. Super. 174 (2000).
The opinion of the court was delivered by: Long, J.
Argued September 24, 2001
This case requires us to determine whether the fugitive disentitlement doctrine should be applied to bar an appeal in a civil case and if so, to limn its contours.
Defendant, Tatsuya Matsumoto, married plaintiff, Satoko Matsumoto, in Japan on March 18, 1984. Their only child, Hyugo, was born in New York City on July 6, 1985. The Matsumoto family resided in New Jersey from 1985 to 1997. During that time, they were essentially supported by Tatsuya's mother, Kazuko Matsumoto, who lived in Japan. They resided in a house Kazuko owned in Cedar Grove. Over time, the marital relationship began to deteriorate. In March 1997, the Matsumotos and their son traveled to Japan for the purpose of enabling Satoko to attend a Buddhist ceremony commemorating the anniversary of the death of her father. The Matsumotos differ over what happened during the trip but agree that their son remained in Japan and that they returned to the United States on separate flights.
Satoko contends that during the trip Tatsuya and his mother began to pressure her to stay in Japan, and that Tatsuya forcibly detained her for a period of time in an effort to coerce her to remain in Japan permanently. She also claims that she had to flee to her mother's house, and that thereafter Kazuko prevented her from communicating with Hyugo. Satoko returned to the United States by herself. Tatsuya contends that Satoko's return to America without Hyugo was volitional.
Tatsuya left Hyugo with his grandmother and briefly returned to the United States where he liquidated all bank accounts, totaling over $1,000,000, sold the cars, and had all the Matsumotos' furniture shipped to Japan. The contents of the house had a value of $413,000. Tatsuya also informed Hyugo's school that his son would not be returning. Satoko claims that during that time Kazuko had the locks changed on the marital residence, instructed her real estate manager not to give the keys to Satoko and directed the agent to remove Satoko's personal belongings from the house.
On April 25, 1997, Satoko filed a complaint for custody and separate maintenance and an ex parte application for an order to show cause. She was awarded sole temporary custody of Hyugo and exclusive possession of the house in Cedar Grove. Tatsuya and Kazuko were ordered to return Hyugo within forty-eight hours. In addition, the court ordered Tatsuya to account for all personalty he had removed from New Jersey and enjoined him from dissipating assets acquired by the parties during the marriage.
Neither Tatsuya nor Kazuko complied with the order. As a result, on May 2, 1997, a supplemental order to show cause issued, which included the threat of arrest warrants against Tatsuya and Kazuko for contempt. Tatsuya and Kazuko did not respond, and on July 3, 1997, the trial court entered a final order imposing sanctions against them of $1,000 per day retroactive to the date Hyugo was removed to Japan and continuing to accrue until Hyugo was returned. That order also adjudicated Tatsuya in violation of Satoko's rights for his failure to comply with the April 25, 1997 Order directing him to account for the personalty he had removed from New Jersey.
In June 1997, Satoko filed an Amended Complaint alleging additional causes of action, including intentional infliction of emotional distress, international interference with custody, fraud and conversion. The complaint contained a prayer for equitable distribution. In September 1997, Satoko filed a Second Amended Complaint adding claims for divorce and alimony. Neither Tatsuya nor Kazuko responded. Accordingly, a default was entered. A subsequent motion by Kazuko's attorney to reopen the default was denied.
On December 4, 1997, criminal indictments issued against Tatsuya and Kazuko for conspiracy to interfere with child custody, interference with child custody, and child endangerment. On December 23, 1997, bench warrants issued for Tatsuya's and Kazuko's arrest for failure to appear at the arraignment.
In March 1998, Tatsuya and Kazuko submitted certifications to the trial court offering to waive personal jurisdiction defenses in exchange for a dismissal of the arrest warrants, monetary sanctions and criminal indictments. Tatsuya further responded that he would bring Hyugo to New Jersey and would establish a temporary residence until the court decided the custody issue. In May 1998, the trial court denied Tatsuya's request. In June 1998, Kazuko's attorney contacted Satoko's attorney and asked him to cooperate in vacating the civil and criminal warrants so that Tatsuya and Kazuko could bring Hyugo back to New Jersey.
Having received no response, the attorney faxed a letter to Satoko's attorney informing him that Hyugo would be arriving at Newark airport at 6:55 p.m. on July 16, 1998. Satoko's attorney wrote back stating that Satoko would not be available from mid- July until after August 24, 1998. Hyugo returned to the United States on or about July 10, 1998.
During the period that Hyugo was in Japan, Tatsuya and Kazuko refused all letters and gifts sent to him by Satoko, and mother and son became estranged. Thus, when Hyugo initially came back to New Jersey, he stayed at a friend's house and Satoko visited him. Ultimately, Hyugo moved in with Satoko but their differences were irreconcilable. Satoko alleges that Hyugo was programmed by Tatsuya and Kazuko "to exhibit unprecedented violence and hostility towards [her]," and that during the time that Hyugo stayed with her he was physically abusive - "kicking her repeatedly, knocking her to the ground, and striking her with a plastic bottle." Ultimately, because Hyugo's demands to return to Japan were relentless and Satoko could no longer control him, she felt that she had no choice but to allow him to leave. However, she sought an Order that would give her continued custody of Hyugo while he attended school in Japan (as he was demanding) and require him to live with her at times that the school was not in session.
The matter was set down for a hearing on September 21, 1998. In the interim, on September 11, Satoko allowed Hyugo to return to Japan. Satoko wrote to Hyugo and the letters were not returned. Instead, Hyugo wrote the following responses: ". . . you bitch"; "Go to hell and die"; "Don't send any more mail"; "Don't use me for the case"; and "I have severed all the ties with you."
In February, 1999, Tatsuya and Kazuko filed a motion to "Define Rights of Defendants at Default and Sanction Hearing." In essence, they sought the right to fully participate in the divorce action. The application was denied except for the opportunity to cross-examine Satoko's witnesses. Counsel for Tatsuya made an oral request that Hyugo be examined by a psychologist and interviewed by the trial court. The trial court ruled that Tatsuya, as a party in default, lacked standing to make that application. Subsequently, in April 1999, Hyugo's paternal uncle, Dr. Yasunori Matsumoto, sought to represent Hyugo and to be appointed as guardian ad litem to participate in a best interests investigation. He proposed an in camera interview with the child. On April 6, 1999, the court appointed Dr. Matsumoto as guardian ad litem conditioned upon the posting of a $100,000 surety bond, and appointed Dr. Madelyn Milchman, Ph.D., to conduct a psychological evaluation. On April 23, 1999, the court interviewed Hyugo in camera.
On June 7, 1999, Dr. Milchman issued a report recommending that (1) both parents receive complete psychological and custody evaluations before a final custody award issued; and (2) Hyugo's stated desire to live in Japan should, pending the award, be respected. She also concluded that Hyugo did not show evidence of having been "programmed" or "brainwashed."
A Judgment of Divorce entered in June 1999 granted Satoko temporary legal and residential custody of Hyugo. An Amended Judgment of Divorce was entered in July 1999. As a result, Satoko was awarded the marital residence, $944,500 in assets, permanent alimony in the amount of $48,000 per year, retroactive alimony in the amount of $54,000, and sole custody of Hyugo along with child support in the amount of $271 per week. Tatsuya was further ordered to pay for Hyugo's medical and dental insurance and to maintain two irrevocable life insurance policies to protect the alimony and child support awards, respectively. In addition, the court imposed on both Tatsuya and Kazuko (jointly and severally) compensatory damages of $179,500 for their intentional interference with custody as well as punitive damages ($100,000 against Tatsuya and $200,000 against Kazuko.) Finally, Satoko was awarded attorneys' fees and costs totaling $58,152. Dr. Yasunori Matsumoto's application for the return of his escrowed funds was denied. Tatsuya and Kazuko appealed from the entirety of the judgments against them, and Dr. Yasunori Matsumoto appealed from the denial of the return of his funds.
The Appellate Division reversed the trial court's order denying Dr. Matsumoto's application that the escrowed funds be returned to him. Matsumoto v. Matsumoto, 335 N.J. Super. 174, 187-88 (App. Div. 2000). With respect to Tatsuya and Kazuko, the Appellate Division held: (1) the exercise of personal jurisdiction over Kazuko did not violate the due process clause; and (2) the refusal of Tatsuya and Kazuko to comply with court orders prevented consideration of their appeals based on the "fugitive disentitlement doctrine":
[B]ecause the trial court had jurisdiction over both defendants, their refusal to respond to the warrants, return to the State and litigate here prevents our consideration of their respective appeals. See, e.g., Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S. Ct. 498, 498-99, 24 L. Ed.2d 586, 587-88 (1970); State v. Rogers, 90 N.J. 187, 447 A.2d 537 (1982) (criminal appeals); Kamelia S. v. Derek S., 82 Cal. App.4th 1224, 1229, 98 Cal. Rptr.2d 816 (Ct. App.2d Dist. 2000) (appeal dismissed where appellant violated court orders, was in contempt for absconding with child who had been placed in foster care and warrants were issued for his arrest). [Id. at 185 (footnote omitted).]
The Appellate Division stated that "in these circumstances we believe that defendants should not be able to ask us for relief while refusing to otherwise respond to the lawful orders of our courts." Ibid. Accordingly, the court dismissed the appeals of Tatsuya and Kazuko without prejudice to reinstatement upon their surrender or upon vacation of the warrants outstanding against them. The Appellate Division also lifted the stay that it had imposed on the distribution to Satoko of the proceeds of the sale of the marital residence. On motions of Kazuko and Satoko, we reimposed the stay but permitted the distribution of $25,000 from the funds held in escrow.
We granted the petitions for certification filed by Tatsuya and Kazuko on a single issue: the application of the fugitive disentitlement doctrine to them. 167 N.J. 635 (2001). In essence, both Tatsuya and Kazuko claim the fugitive disentitlement doctrine should not be adopted for use in civil cases and, alternatively, that if adopted it should be narrowly applied. Kazuko argues separately that even if the fugitive disentitlement doctrine applies to civil cases, it is inapplicable to her because she did nothing to warrant its invocation. We have carefully reviewed the record in light of those contentions. We now affirm but modify the judgment of the Appellate Division.
Fugitive disentitlement is a doctrine that springs out of the inherent power of courts to enforce their judgments and protect their dignity. Martha B. Stolley, Sword or Shield: Due Process and the Fugitive Disentitlement Doctrine, 87 J. Crim. L. & Criminology 751, 778-79 (1997). In essence, it provides that "a fugitive from justice may not seek relief from the judicial system whose authority he or she evades." Id. at 752 (footnote omitted); see also Molinaro, supra, 396 U.S. at 366, 90 S.Ct. at 498, 24 L.Ed.2d at 587-88 ("No persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed upon him pursuant to the conviction.").
The doctrine is rooted in the criminal law, and its most common application has been a nearly automatic bar to the criminal appeal of a defendant who has become or remains a fugitive from justice. The United States Supreme Court approved that application over a century ago. Molinaro, supra, 396 U.S. at 365-66, 90 S.Ct. at 498-99, 24 L.Ed.2d at 587 (citing Allen v. Georgia, 166 U.S. 138, 141, 17 S.Ct. 525, 526, 41 L.Ed. 949, 950 (1897); Bohanan v. Nebraska, 125 U.S. 692, 8 S.Ct. 1390, 1390-91, 31 L.Ed. 854 (1887); Smith v. United States, 94 U.S. 97, 97-98, 24 L.Ed. 32, (1876)); see also Estelle v. Dorrough, 420 U.S. 534, 537, 95 S.Ct. 1173, 1175, 43 L.Ed.2d 377, 380 (1975) (noting that court "has long followed the practice of declining to review the convictions of escaped criminal defendants"). Most federal and state courts have followed suit. See, e.g.,United States v. Morgan, 254 F.3d 424, 427 (2nd Cir. 2001); United States v. Hanzlicek, 187 F.3d 1219, 1220 (10th Cir. 1999); Parretti v. United States, 143 F.3d 508, 511 (9th Cir.), cert. denied, 525 U.S. 877, 119 S.Ct. 179, 142 L.Ed.2d 146 (1998); United States v.
Wright, 902 F.2d 241, 242 (3rd Cir. 1990); United States v. Amado, 754 F.2d 31 (1st Cir. 1985); People v. Elkins, 55 P. 599 (Cal. 1898); Doren v. State, 104 N.E. 500 (Ind. 1914); Lofton v. State, 115 So. 592 (Miss.), cert. denied, 278 U.S. 568, 49 S.Ct. 83, 73 L.Ed. 510 (1928); Arvey v. State, 583 P.2d 1086, 1087 (Nev. 1978); People v. Jones, 632 N.Y.S.2d 201 (N.Y. App. Div. 1995); State v. Dalton, 115 S.E. 881 (N.C. 1923); State v. Bell, 608 N.W.2d 232, ...