On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM 05-19895-90.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Holston, Jr.
Defendant, Angelo Ciancio, appeals the Family Part's March 13, 2006 order denying, with prejudice, defendant's motion to modify child support for the period September 2001 to July 2003 and for prospective child support from July 2003 forward.*fn1
On June 29, 1990, the Family Part entered a pendente lite order requiring defendant to pay $175.00 per week in child support for the parties' two children, Joseph and Margaret. Thereafter, the parties were divorced pursuant to a dual final judgment of divorce entered February 26, 1992. Child support was recalculated retroactive to April 16, 1991 and was changed to $98.00 per week, plus $10.00 toward arrearages.
Sometime between 2001 and 2002 Joseph and Margaret began living with defendant. As a result defendant stopped making all of his support payments to plaintiff. Defendant filed a motion requesting dismissal of his child support obligation as to both children, credit against child support arrears for the period between September 2001 to November 2003, assistance with the children's medical expenses, joint custody, and support from plaintiff. On October 17, 2003, the trial court vacated defendant's support obligation as of July 28, 2003, reduced to judgment defendant's child support arrears of $16,057.62, granted plaintiff's motion for a wage execution, awarded the parties joint custody of the children but denied defendant's motion to discharge or modify his child support arrearage for the parties' son and daughter, denied defendant's motion for prospective child support, and denied both parties' motions for reimbursement of the children's medical expenses. Defendant's motion for reconsideration was denied on November 21, 2003.
Defendant appealed and in an unpublished opinion, we affirmed in part and remanded in part to the Family Part with instructions. Ciancio v. Ciancio, No. A-2264-03T1 (App. Div. June 21, 2005). We vacated the judgment against defendant with respect to Joseph, who the parties stipulated had lived with defendant since September 2001, and ordered a plenary hearing to determine which parent was and is the parent of primary residence as to Margaret. Further, we ordered that defendant should receive credit for any support paid between 2001 and July 2003 during which Joseph or Margaret was living with defendant as the parent of primary residence. Finally, we ordered the trial court to make prospective support orders for the children, as they were unemancipated full-time college students with medical needs. Id. slip op. at 9.
On November 18, 2005, the trial court held a hearing and denied defendant's request for pendente lite support. The court also ordered that depositions of defendant and the parties' two children should take place. Defendant was ordered to be deposed on December 5, 2005. However, during defendant's scheduled deposition, defendant's then attorney walked out from the deposition after an altercation with defendant.
In December 2005, defendant filed a criminal complaint against A. Harold Kokes, plaintiff's counsel, with the Cape May County Prosecutor. Additionally, defendant filed an ethics violation against Kokes. Defendant claims also to have filed a complaint with the Advisory Committee on Judicial Conduct against the motion judge.*fn2
On January 5, 2006, the court again ordered defendant's deposition and set forth that defendant must be deposed on February 23, 2006. Defendant wrote to the court refusing to be deposed. The court refused to have a telephonic conference with defendant regarding his refusal to be deposed by Kokes, and the court's law clerk contacted both counsel, "indicating that the Court saw no conflict on the part of Mr. Kokes continuing to handle this matter and indicating that the matter was to proceed in due course." The court ordered deposition did not occur because defendant refused to be deposed by Kokes.
Thereafter, plaintiff made a motion to the court claiming that she was unable to try the case because defendant refused to be deposed. Pursuant to Rule 4:23-2(b)(3), the court after oral argument, dismissed plaintiff's motion with prejudice for willfully failing to comply with the court order to submit to a deposition. The court stated:
At this particular point, Mr. Kokes, I'm going to grant your application that the defendant be not permitted to move forward at this particular point. The burden of proof is upon him. This is his particular motion. . . . [Defendant's] concerns were made known to the Court in advance of that deposition, and the Court replied both telephonically and in writing that his concerns were not the concerns of the Court and the deposition was to take place. He, at that particular point, voluntarily decided that he was not going to be deposed.
And the reason I am imposing the sanction that I'm imposing is (1) I believe that I have authority in the court rule; (2) I believe that that is the sanction that I indicated that I would ...