February 27, 2007
BRENDA C. SACHER (N/K/A RACHEL MARSCHNER), PLAINTIFF-APPELLANT,
S. MARK SACHER, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, FM-03-251-99.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 then ruled that he was going "to resolve this matter on the facts after they are fully explored . . . make a factual determination, and then . . . apply the applicable law of the State of New Jersey and reach a decision."
The judge also described why a plenary hearing was necessary for him to make a factual determination. He denied Sheldon's motion for summary judgment, required Brenda to answer specific numbered interrogatories by December 23, 2005, and scheduled a plenary hearing for February 9, 2006, indicating that there would be no further continuances. He explained to Brenda why it was necessary for her to appear and present her witnesses, advising her that a failure to appear in court or answer interrogatories "could result in the [c]court coming to . . . factual and legal conclusions that could be adverse to [her] interest." Brenda acknowledged her understanding.
Brenda did not appear at the February 9, 2005, hearing. Instead, she filed what she entitled "PLAINTIFF'S 5TH NOTICE OF FRAUD ON THE COURT," reiterating her belief that the court was "obvious[ly] defrauding," biased, and prejudiced against her, convincing her "now, more than before, that the fix is in." At the hearing, Judge Call placed on the record that on February 2, 2006, a civil complaint was filed in United States District Court in the District of Minnesota by Rachel Marschner and Ariel Sacher, naming D. Larry Pert, Howard Pert (the private detectives retained by Sheldon), Sheldon's counsel, Judge Call, Sheldon Sacher, Howard Sacher, and Tammy Durici of J&J Court Transcriber's Incorporated as defendants. Again, Judge Call indicated that he had no personal animosity toward Brenda, that he intended to conduct a hearing fairly and impartially and, citing the same reasons he had previously explained, that it would be inappropriate to recuse himself simply because a litigant had filed a civil litigation naming him as a defendant. He then proceeded with the plenary hearing.
At the plenary hearing, Sheldon presented proofs indicating that between July 2004 and December 2004, a total of fifty-seven telephone calls were made by Sheldon to Simpson's Grove City residence for the purpose of talking with Ariel, while only seven were made to Brenda's Litchfield address. He explained that often times Brenda or Simpson would answer. Sheldon testified that when he and his son visited Ariel in Minnesota in November 2004, they were met at the airport by Ariel, Brenda, and Simpson and, during their four-day stay, Brenda and Ariel resided at Simpson's home. Brenda's answer to interrogatories asking for financial documentation regarding her financial contributions to any residence and requesting copies of her checking and savings account was "Burdensome and Oppressive." Although she listed a series of improvements made to her property in Litchfield, she again refused to attach copies of estimates or repair bills for the Litchfield residence. When asked what relationship she had with Simpson, Brenda answered, "[n]o relationship," and when asked to state her interaction with Simpson from May 2005 until present, she replied, "[n]one."
The judge found that the telephone calls starting in July of 2004 adversely affected the credibility of Brenda prior to her assertion that she did not move into Simpson's residence until the winter of 2004. He found her answers to interrogatories and refusal to provide documentation confirming that she was repairing her Litchfield residence deceptive when compared to the various statements made in her motions.
Judge Call concluded that Sheldon established a prima facie showing of cohabitation, thus shifting the burden of proof to the dependent spouse. Ozolins v. Ozolins, 308 N.J. Super. 243, 248-49 (App. Div. 1998) (citing Frantz v. Frantz, 256 N.J. Super. 90, 93 (Ch. Div. 1992)). He then applied the economic needs test enunciated in Gayet v. Gayet, 92 N.J. 149, 153 (1983), to determine whether cohabitation required modification of the alimony award. Finding that Brenda had not been candid regarding the facts surrounding the furnace, the judge concluded that the evidence presented by Brenda in her papers filed previously with the court did not rebut the presumption and, therefore, he terminated Sheldon's alimony obligation. Noting the favorable result obtained in the case by Sheldon and the increased fees incurred by him as a result of Brenda's failure to provide discovery, failure to appear on December 1, 2005, and Sheldon's need to enforce the order requiring her contribution to Daniel's college expense, the judge awarded counsel fees of $1544.84 to Sheldon, using the same 22% income figures used in determining contribution to Daniel's college expenses.
On appeal, Brenda raises the following contentions:
I. The lower court misconstrued the law regarding cohabitation.
II. The lower court abused its discretion in not giving reasons for its rulings.
III. The lower court was and is biased against the Appellant.
IV. The lower court's award of counsel's fees against Appellant [was] unwarranted.
We find no error in the proceedings and affirm for the reasons given by Judge Call. The arguments of the plaintiff are without merit and any further discussion would have no precedential value. R. 2:11-3(e)(1)(A), (E). We add the following brief comments.
Judge Call's findings are adequately supported by sufficient evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). We must defer to a trial judge's factual findings especially where "the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997) (citing Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989)). Applying these principles, we are satisfied from our review of the evidence that Judge Call's findings of fact concerning cohabitation were unassailable.
Recusal is entrusted to the sound discretion of the trial judge where recusal is sought. State v. Marshall, 148 N.J. 89, 275-76, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997); Panitch v. Panitch, 339 N.J. Super. 63, 66 (App. Div. 2001). "Moreover, judges are not free to err on the side of caution; it is improper for a court to recuse itself unless the factual basis for its disqualification are shown by the movant to be true or are already known by the court." Marshall, supra, 148 N.J. at 276. "An adverse ruling in prior proceedings does not warrant disqualification." Ibid. In the absence of evidence that the trial judge's continuance might preclude a fair and unbiased hearing or judgment, recusal would be improper. Clawans v. Schakat, 49 N.J. Super. 415, 420 (App. Div.), certif. denied, 27 N.J. 156 (1958). Moreover, dissatisfaction or displeasure by a litigant with the court's rulings is not a sufficient basis for recusal. See R. 1:12-1.
Our review of the entire record satisfies us that Brenda's claims that Judge Call was biased and prejudiced are totally lacking in merit, and he appropriately exercised his discretion to continue despite her attack on his character, ability, and impartiality. Contrary to Brenda's contentions, our examination of the record reveals that Judge Call went out of his way to explain to her, as a pro se litigant who might not otherwise understand the legal basis for his decision, our law of cohabitation, the required burden of proof, and his reasons for requiring a plenary hearing. He showed exceptional tolerance, understanding, and patience, in the face of unceremonious accusations, in affording Brenda additional time to provide the required discovery and arrange for her appearance in court. We see no reason to intervene.
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