July 11, 2007
MARY CIANCIO, PLAINTIFF-RESPONDENT,
ANGELO CIANCIO, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 5, 2007
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Defendant appealed and in an unpublished opinion, we affirmed in part and remanded in part to the Family Part with instructions.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 impose if . . . a witness were not deposed. . . .
But in this particular case, we have a moving party who voluntarily decided that he was not going to be deposed. The case rises or falls based upon his view of the case. Whatever ancillary proofs he may or may not have had, I don't believe that he is privileged or entitled to bring here today, after having voluntarily decided that he was not going to be deposed. . . .
All that having been said, Mr. Kokes, for the reasons indicated, I'm granting your request that he not be permitted to move forward.
On March 23, 2006, defendant filed a motion for reconsideration. On April 26, 2006, he filed a notice of appeal of the court's March 13, 2006 order. On May 19, 2006 the court denied defendant's reconsideration motion and granted plaintiff's cross-motion. The judge ordered judgment entered against defendant in favor of plaintiff for child support arrears in the amount of $1,126.60. The judge also ordered a wage execution against defendant to insure payment of the judgment.
Defendant presents the following arguments for our consideration:
JUDGE RAUH HAS NO AUTHORITY TO PROMULGATE RULES WHICH ABROGATE OR MODIFY THE RULES PROMULGATED BY THE SUPREME COURT AND TO INVOKE RULE 4:23-2(b) IN VIOLATION OF STATE AND FEDERAL LAWS REGARDING CHILD SUPPORT.
JUDGE RAUH'S, PLAINTIFF/RESPONDENT'S AND A. HAROLD KOKES' WILLFUL ABUSE, WILLFUL ABANDONMENT, WILLFUL CRUELTY AND WILLFUL NEGLECT OF CHILDREN IS NOT EMPIRICAL OF A SOUND SOCIETY AND CONSTITUTES N.J.S.A. 9:6-1 AND A VIOLATION OF THE CHILDREN'S FOURTEENTH AMENDMENT RIGHTS.
JUDGE RAUH UNDER COLOR OF OFFICIAL RIGHT IS GUILTY OF MISAPPROPRIATION OF FUNDS, PIGGYBACKING OF JUDGMENT, ABUSE OF DISCRETION AND AIDING AND ABETTING RESPONDENT'S AND A. HAROLD KOKES' MISAPPROPRIATION OF FUNDS, ILLEGAL PIGGYBACKING OF JUDGMENTS, EXTORTION AND FRAUD.
RESPONDENT AND HER ATTORNEY MR. KOKES PERPETRATED A SHAM AND A FRAUD ON THE COURT AND APPELLANT REGARDING THIS CASE AND HER ASSETS.
Defendant contends the court abused its discretion when it imposed the ultimate sanction of denying his motion with prejudice. Defendant contends that in doing so the court failed to adhere to this court's directions on remand contained in our June 21, 2005 decision.
Rule 4:23-2, titled "Failure to Comply with Order," grants a court several options for the imposition of sanctions when a party fails to comply with a court order. Rule 4:23-2(b) states in applicable part:
If a party . . . fails to obey an order to provide or permit discovery, including an order made under R. 4:23-1, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
(1) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the introduction of designated matters in evidence;
(3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof with or without prejudice, or rendering a judgment by default against the disobedient party;
(4) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders.
"While a trial judge has broad discretion in the formulation of sanctions under R. 4:23, any sanction imposed must be just and reasonable." Pressler, Current N.J. Court Rules, comment 1 on R. 4:23-2 (2007); see Conrad v. Robbi, 341 N.J. Super. 424, 441 (App. Div.), certif. denied, 170 N.J. 210 (2001). Our Supreme Court has stated:
[T]he court has available to it, along with dismissal, where warranted, discovery-type sanctions such as orders to compel, the award of reasonable expenses incurred in obtaining the certification, and counsel fees. In each case, the court should assess the facts, including the willfulness of the violation, the ability of plaintiff to produce the certification, the proximity of trial, and prejudice to the adversary, and apply the appropriate remedy. That methodology provides judges with discretion to choose a response that is proportionate to the procedural stimulus; saves for trial the meritorious claims of truly injured victims; and allows dismissal of cases in which a plaintiff cannot or will not supply a certification or in which a plaintiff's conduct has irremediably prejudiced the defendant. [Casinelli v. Manglapus, 181 N.J. 354, 365 (2004) (internal citation omitted).]
"While the court must be loathe to impose the ultimate sanction of dismissal, a trial judge's exercise of the authority to do so must be affirmed where the plaintiff's failure to comply with a court order was egregious, of long standing, willful and deliberate." Pressler, Current N.J. Court Rules, comment 2 on R. 4:23-2 (2007). This court has stated that, "[w]e deem the last and least favorable option to be a bar of plaintiff's claim." Il Grande v. DiBenedetto, 366 N.J. Super. 597, 624 (App. Div. 2004). The Supreme Court has noted that "imposition of the severe sanction of dismissal is imposed not only to penalize those whose conduct warrant it, but to deter others who [might] be tempted to violate the rules absent such a deterrent." Abtrax Pharms., Inc. v. Elkins-Sinn, Inc. 139 N.J. 499, 518 (1995) (quoting Jansson v. Farleigh Dickinson Univ., 198 N.J. Super. 190, 196 (App. Div. (1985)).
"[T]he standard of review for dismissal of a complaint with prejudice for discovery misconduct is whether the trial court abused its discretion, a standard that cautions appellate courts not to interfere unless an injustice appears to have been done." Id. at 517. An abuse of discretion arises when a decision is made "without a rational explanation, inexplicably departed from established policies or rested on an impermissible basis." Flagg v. Essex County Prosecutor, 148 N.J. 561, 571-72 (2002) (quoting Achacoso-Sanchez v. Immigration and Naturalization Service, 779 F.2d 1260, 1265 (7th Cir. 1985)).
Our remand required a plenary hearing, but one was never held. Defendant defied the trial court's order that he (as well as his former wife and both children) be deposed to flesh out the disputed factual issue, namely with which parent Margaret resided since 2001. Because of defendant's persistent disobedience to the court's order, which frustrated plaintiff's ability to effectively litigate the issue, the judge imposed the ultimate sanction of dismissal of defendant's claim.
In light of defendant's egregious misconduct, as evidenced by his persistent defiance of the court's orders, we find no abuse of discretion in the sanction of denial with prejudice imposed by the court. As the Supreme Court made clear in Abtrax, supra, 139 N.J. at 514, the imposition of dismissal with prejudice may be an appropriate remedy "where the refusal to comply is deliberate and contumacious." (quoting Lang v. Morgan's Home Equip. Corp., 6 N.J. 333, 339 (1951)). A party invites the extreme sanction by deliberately pursuing a course that thwarts persistent efforts to obtain the necessary facts. Id. at 515. That is what the court concluded defendant did here by his adamant refusal to submit to a deposition in accordance with the court's order. Notwithstanding our affirmance of the sanction imposed by the court, our affirmance does not preclude defendant from bringing a new application for child support prospectively from the date of any such application.*fn3