August 2, 2007
VICTOR RIZZOLO, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
BARBARA RIZZOLO, DEFENDANT-APPELLANT/CROSS-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-751-06G.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: July 5, 2007
Before Judges Skillman and King.
This is an appeal and cross-appeal from a final judgment of divorce entered on September 26, 2006. The substantive economic provisions of the order deciding this contested proceeding state:
1. The Bridgewater property located at 738 West Foothill Road, Bridgewater, New Jersey and the furniture and furnishings shall remain and be the property of the Defendant, Barbara A. Rizzolo;
2. The Florida property located at 453 Shade Drive East, Venice, Florida and all furniture and furnishings therein (with the exception of Defendant's clothing and personal effects) shall be awarded to Plaintiff, Victor A. Rizzolo, in equitable distribution. Defendant shall deliver a Deed to Victor A. Rizzolo for the said property, along with an Affidavit of Title, said Deed to be Bargain and Sale with Covenants against Grantor's Act, within ten (10) days of the date hereof. In the event that Defendant does not sign the Deed to the Florida property located at 453 Shade Drive East, Venice Florida within the allotted time, Dale E. Console, Esq., is hereby appointed as attorney-in-fact for the purpose of signing the Deed on behalf of Barbara A. Rizzolo.
3. Defendant shall keep as her own separate property the life insurance policy on the life of Victor A. Rizzolo;
4. Plaintiff shall keep his interest in Rizzolo & Rizzolo, a partnership free and clear from any claim by the Defendant;
5. The Pendente Lite Order previously entered in this matter shall be amended to provide that the Plaintiff shall pay to the Defendant the sum of $400.00 per week in permanent alimony. Plaintiff is relieved from paying any of the other charges and awards under the Pendente Lite Order after this date.
6. Each party shall each pay his or her own counsel fees and costs;
7. The balance of the fee due to Amper, Politziner and Mattia shall be paid by Plaintiff, Victor A. Rizzolo, within thirty (30) days of the date hereof;
8. The parties shall each be responsible for any debt in their name without contribution by the other, except for any Pendente Lite obligation that the Plaintiff may have that are still outstanding;
9. Any and all other assets shall be kept by the party in whose name they are registered, without any claim by the other party, with the exception of the 1926 Steinway Grand Piano with piano rolls, the Somerset County Antique Map and the Squires Map of New Jersey, which are currently located in the marital residence and shall be returned to the Plaintiff, Victor A. Rizzolo.
IT IS HEREBY FURTHER ORDERED AND ADJUDGED that defendant, whose date of birth is 10/9/1943, and whose social security number if XXX-XX-1407 be and is hereby permitted to resume her premarital surname; to wit, Barbara A. Jones; and
IT IS FURTHER ORDERED AND ADJUDGED that a copy of this Judgment shall be served upon all interested parties within seven (7) days of the date same is received by the submitting party.
HONORABLE GLENN BERMAN, J.S.C.
IT IS FURTHER ORDERED that any sale of the Florida property and its contents is stayed pending appeal and in the event that the Bridgewater property is sold, one-half of the proceeds shall be held in escrow in an interest bearing account by Defendant's attorney pending appeal. We hereby consent to the form of this Order Stanton & Stieh DONALD W. STIEH DALE E. CONSOLE Attorneys for Attorney for Plaintiff Defendant On appeal Barbara Rizzolo (Barbara) raises these four points:
POINT ONE - THE TRIAL COURT ERRED IN DENYING DEFENDANT'S COUNSEL'S REQUEST TO BE RELIEVED AND IN REQUIRING COUNSEL, WHO ADMITTED HE WAS UNPREPARED, AN ADJOURNMENT TO EITHER PREPARE FOR THE TRIAL OR GIVE DEFENDANT AN OPPORTUNITY TO RETAIN NEW COUNSEL.
POINT TWO - THE TRIAL JUDGE APPLIED INCORRECT LEGAL STANDARDS TO THE ISSUE OF WHETHER THERE WAS A VALID RECONCILIATION AGREEMENT AND FAILED TO APPROPRIATELY ASSESS DEFENDANT'S DETRIMENTAL RELIANCE ON THE AGREEMENT AND WHETHER PLAINTIFF WAS ESTOPPED FROM DISAVOWING THE PROPERTY TRANSFERS.
POINT THREE - THE TRIAL COURT ERRED IN CLASSIFYING THE MACK NESS COMMISSION AS FUTURE INCOME RATHER THAN A FORM OF DEFERRED COMPENSATION AND IN FAILING TO CONSIDER THE IMPACT OF THE FUNDS AS PART OF HIS OVERALL DECISION.
POINT FOUR - THE TRIAL COURT ERRED IN AWARDING DEFENDANT $400 PER WEEK IN TAXABLE ALIMONY WITHOUT CONSIDERATION OF HER ACTUAL NEEDS OR ANY OF THE FACTORS UNDER N.J.S.A. 2A:34-23.
On cross-appeal Victor Rizzolo (Victor) makes three claims of error:
POINT III - AWARDING PERMANENT ALIMONY TO THE DEFENDANT WAS UNREASONABLE.
POINT IV - THE MONIES RECEIVED BY PLAINTIFF FROM HIS MILITARY DISABILITY CANNOT BE CONSIDERED IN ALIMONY CALCULATION.
POINT VI - IT WAS ERROR FOR THE COURT TO AWARD THE MAJORITY OF EQUITABLE DISTRIBUTION TO THE DEFENDANT.
Victor agreed with the judge's ruling denying Barbara's counsel's request to withdraw, the finding that there was no valid "mid-marriage" agreement, and the denial of any share in the Ness estate future commission.
Since we agree with Barbara's Point I, we vacate the entire judgment and remand for a new trial. Barbara now has secured able and diligent counsel to pursue her claims and to conduct this appeal. We conclude that the judge should have allowed her thirty to sixty days to secure counsel of her choosing and erred in pressing this thirteen-month old case to trial in the circumstance. Because a new trial may present additional or new evidence, and certainly a possible new slant on the earlier evidence, we refrain from commenting on the substantive decisions of the trial judge. Any predictions by us based on what proofs might emerge at the fresh proceeding would be presumptuous on our part. The nature of the proofs is uncertain, especially with respect to the health of the parties in view of their age, their potential earning capability, living expenses and expected life-style. The substantial estate fee or commission allegedly due to Victor will no doubt be clarified. This case was thirteen-months-old when scheduled for trial on July 31, 2006. The complaint was filed on June 30, 2005. On July 26, 2006 Barbara's counsel sent this letter to the judge:
Please be advised that I have been told by my client, Barbara Rizzolo, that she feels that I have never been an advocate for her in this matter, that I do not know the facts of the case, and that she will not be represented by me any further in this matter. She has further told me that under no circumstances will she permit me to represent her any further. She has requested that I sign a substitution of attorney permitting her to represent herself in this matter, scheduled for trial on Monday, July 31, 2006.
I only learned of the extent of Ms. Rizzolo's displeasure with me yesterday, the day after I spent two hours preparing our trial memorandum with her, when my secretary informed me that Ms. Rizzolo no longer wished for me to represent her in this matter. I was unable to speak to her yesterday, but she appeared at my office today and informed me that she will not permit me to represent her any further.
I want to alert the Court to the fracture in my attorney[-]client relationship, and to the fact that I will be making a request to be relieved as counsel on Monday, July 31, 2006. I will present a formal motion pursuant to Rule 5:5-3(d) that day.
On the day of trial counsel appeared and advised the judge he was unprepared because of his client's desire to fire him and proceed pro se, if necessary. The judge told Barbara she could not proceed pro se and her counsel of record would not be relieved.
The trial judge then told Barbara she could (1) settle the case, (2) take a voluntary dismissal, (3) submit to binding arbitration, (4) start the trial promptly with present counsel of record, or (5) start trial with a new attorney if she had one immediately available. No adjournment was allowed. Given this virtual "Hobson's choice," Barbara proceeded to trial with her then-counsel of record whom she had discharged a week before and who was, by his own claim, unprepared. As a result Barbara now claims on this appeal that she "was left with inadequate means to meet her basic expenses let alone provide for her long-term needs." She currently is age 63 and unemployed; Victor is age 83 and is a former Superior Court judge who practices law with his son on a part-time basis.
The delicate balance here is between the policy of prompt resolution of contested matrimonial matters and the right of a litigant to counsel of her choice in whom she has confidence where she perceives that her permanent economic fate is at stake. In this case we rule in favor of the litigant's right to counsel of her choice. The right to counsel of one's choice in civil litigation is a valuable, deeply-rooted right. Hauck v. Danclar, 262 N.J. Super. 225, 228 (Law Div. 1993) (Judge Winkelstein); Dwyer v. Jung, 133 N.J. Super. 343, 347 (Ch. Div. 1975) (Judge Kimmelman). See also R. 5:3-5(d)(2) (withdrawal of representation).
In sum, a brief delay of thirty to forty-five days in the trial should have been countenanced. Barbara promptly secured able counsel to assist in formulating the final order and in pursuing this appeal. We conclude that a fresh hearing with her new, well prepared counsel will produce an adjudication fully supported by proper factual findings and legal conclusions, see R. 1:7-4, applying the statutory elements, in which this court can have full confidence.
We direct that the terms of the judge's September 26, 2006 order recited above continue in effect, unless modified by the judge, pending the final order on this remand. We strongly suggest that the matter proceed to trial and decision within 45 days of this remand.
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