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Sacher v. Sacher

February 27, 2007

BRENDA C. SACHER (N/K/A RACHEL MARSCHNER), PLAINTIFF-APPELLANT,
v.
S. MARK SACHER, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, FM-03-251-99.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 5, 2007

Before Judges Lintner and C.L. Miniman.

Plaintiff, Brenda C. Sacher, now known as Rachel Marschner, and defendant, Sheldon M. Sacher, were divorced pursuant to a Dual Final Judgment of Divorce with Stipulation of Settlement filed with the court on May 25, 2000. The couple had two children, a son, Daniel, and a daughter, Ariel. The stipulation of settlement incorporated into the judgment obligated Sheldon to pay permanent and rehabilitative alimony of $800 per week for a period of two years, followed by $600 per week for a period of two years, followed by $500 per week in permanent alimony. Following the divorce, Brenda moved to Minnesota with both children. Daniel eventually moved back to New Jersey to live with Sheldon who was designated as the parent of primary residence pursuant to a consent order entered on March 15, 2004.

On July 15, 2005, Sheldon filed a motion seeking to eliminate his alimony obligation, based upon his observations while visiting Ariel and from a report of a private investigator he retained that Brenda was living with Peter Harold Simpson. He also sought contribution for Daniel's college expenses at the University of the Arts in Philadelphia.

Brenda replied with pro se motions filed on August 3, 2005, to (1) strike Sheldon's motion, (2) assess legal fees and sanctions against both Sheldon and his attorney, and (3) conduct a hearing via telephone. She asserted that defendant's motion was based upon both "prevarications and frauds" on the court and was "vexatious and frivolous." She also asserted that Sheldon's attorney was "legally barred from playing 'fast and loose' with the truth, facts and laws when Motioning this Court."

In support of her motion, she submitted affidavits from Ariel and Peter Simpson, essentially indicating that, after moving to Minnesota in the summer of 2004, Brenda and Ariel moved to Simpson's farm in the winter because Brenda's home heating system had failed and she could not afford a new system. The affidavits also indicated that Brenda and Simpson did not live as husband and wife, Ariel shares a bedroom with Simpson's daughter, and Brenda sleeps in a separate bedroom from that occupied by Simpson. Simpson averred that he and Brenda "never had marital relations, and . . . are not now having marital relations" and that both are followers of "the Law of God." On August 15 and September 6, plaintiff renewed and supplemented her motion to strike the relief sought by Sheldon, alleging fraud on the court.

On September 23, 2005, following a hearing with Sheldon present and plaintiff participating pro se via the telephone, Judge Call denied Sheldon's motion to eliminate alimony without prejudice, pending a plenary hearing on December 1, 2005. Judge Call noted that [p]erhaps one of the issues that Ms. Sacher does not understand [is] that cohabitation under New Jersey law does not suggest that there has to be a marital type relationship . . . the key element is that of economic dependency, i.e. whether or not an alimony order should continue if the person is living with someone else who is contributing to their economic well-being.

Identifying the factual issue before him as "what degree of economic dependence there was of Ms. Sacher upon Mr. Simpson," Judge Call provided examples such as whether she was living rent-free or provided with food. He concluded that "[t]hose are . . . issues . . . which the [c]court cannot resolve by way of certifications flying back and forth between the respective parties."

Apportioning the income figures provided by the parties, which established that Brenda's income was 22% of Sheldon's, Judge Call determined that Brenda should contribute $4929.10 per year, payable $2464.55 each semester, toward Daniel's college expenses. In addition to ordering a plenary hearing to address the issue of cohabitation, the judge ordered sixty days for the parties to participate in discovery, including depositions, interrogatories, request for admissions, and notices to produce. The judge also denied Brenda's motion for sanctions and Sheldon's motion for fees.

On November 14, 2005, Brenda filed a motion to conduct a hearing via telephone, asserting that she was financially unable to pay the expense for the round trip from Minnesota to New Jersey. On the same date, she filed an additional motion entitled "SUPPLEMENTAL NOTICE OF FRAUD ON THE COURT," complaining that the judge was biased, unprepared, inept, and prejudiced. She also attacked the judge's knowledge of the law, asserted that court proceedings were equivalent to "a legal lynching," demonstrative of a "DENIAL OF DUE PROCESS and Fraud on the Court by the Court." Finally, she suggested that the judge was mentally imbalanced for either substance abuse or financial reasons and that "the fix [was] in," thus supporting the notion that lawyers and judges are held in the "lowest esteem" by non-lawyers.

On November 16, 2005, Sheldon moved for summary judgment, asserting that Brenda conceded that she was cohabitating with Simpson and had failed to provide requested discovery. On November 25, Brenda countered with a motion to strike Sheldon's motion and assess sanctions. On December 1, 2005, Judge Call held a hearing in which Brenda again participated via telephone. The judge addressed Brenda's contentions that the court was biased in favor of Sheldon. Although Brenda had not filed a motion to disqualify him, Judge Call addressed her allegations that the court was unlearned, untrained, unfair, and biased in favor of Sheldon, as well as her claims of unethical conduct.

Judge Call explained the procedure used in posting a tentative decision under R. 5:5-4(e) at the court house at 8:30 a.m. and providing litigants with the tentative decision, thus indicating to her how Sheldon's attorney had knowledge of that decision during the September 23 hearing. He also told her that he did not fax the tentative decision to her because he did not have her fax number and that, in any event, he heard full oral argument on the motions presented at that time, after which he decided the issues presented. He also explained, despite her accusations, that he took no offense and if a court was to disqualify itself in every matter in which a pro se party said unkind things about the court or its decision, such a litigant "would be able to continue a matter forever simply by writing the next Judge and suggesting the same thing." Judge Call ...


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