On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-254-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, Grall and Chambers.
Defendant, Nancy Rogacki, appeals from the judgment of divorce entered in this case after a trial which she did not attend. She was, however, represented by counsel throughout the proceeding. Since the trial court afforded defendant every opportunity to attend the trial or present medical evidence that she was unable to participate, proceeding with the trial was not error where defendant failed to provide such medical documentation in a timely manner. The medical documentation defendant did provide at the conclusion of the trial did not indicate that she was an incapacitated person in need of a guardian, nor did defendant avail herself of the opportunity provided by the court to apply for a reopening of the proceeding. Finally, the court's resolution of the financial issues was fair and favorable to defendant. We remand only for a ruling on defendant's claim for pendente lite support arrears.
This case marks the end of a long term marriage. Plaintiff, Stephen Rogacki, and defendant, Nancy Rogacki, were married on July 29, 1966. The two children born to the marriage are now emancipated. Plaintiff was the wage earner in the family, having served as the deputy fire chief of the Town of Harrison for twenty-seven years. He retired in 2000, prior to the commencement of this litigation. About five years before his retirement, he started a small locksmith business in anticipation of his retirement.
The divorce complaint was filed on November 14, 2002. Immediately after notice of the divorce proceeding, defendant removed monies from the marital accounts including $40,000 from a Bank of New York account, $20,000 from a Dreyfus account, $13,823.43 representing the entire amount of one certificate of deposit, $8,291.82 representing the entire amount of a second certificate of deposit, and $5,000 from the marital joint checking account. Also within a few days after learning of the divorce complaint, she set up a health trust for herself in the amount of $40,000, and she established a college fund in the name of her twelve year old grandson. The instruments of both funds give defendant the sole authority to withdraw monies for her benefit.
During the pendency of the divorce action, plaintiff was ordered to pay defendant $785 per week as pendente lite support retroactive to September 15, 2003. This award represented more than one-half of plaintiff's pension income. Plaintiff was able to generate further income from his locksmith business which he testified was necessary in order to meet his alimony payments. His tax returns reflect that his net income from this business was $2,946 for 2003 and $15,362 in 2004. At the time of trial, he did not have the figures for 2005, but he estimated the net income from the business to be between $10,000 and $12,000 for that year.
The trial went forward on April 24, and 26, and May 24, 2006, without defendant being present. Defendant contends that the court erred in proceeding without her and that her due process rights were violated by this circumstance. However, a careful review of the record indicates that the trial court gave defendant every opportunity to either be present or provide the court with medical evidence that she was unable to participate. This she did not do.
After a number of adjourned trial dates, the case was scheduled for trial on April 3, 2006. Due to a question about defendant's health status, the trial was carried to the next day, April 4, 2006, in order to give defense counsel an opportunity to ascertain what the problem was. On April 4, 2006, defense counsel reported to the court that she had been able to confirm with defendant's neurologist, Dr. Infanta Stephen, who was treating defendant for headaches, that defendant had undergone a brain biopsy that morning, an outpatient procedure. As a result, the court adjourned the trial to April 24, 2006, and advised defense counsel that, if a doctor finds that defendant is unable to participate in the trial at that time, documentation must be provided to the court.
On April 24, 2006, the adjourned trial date, defense counsel explained to the court that she had confirmed with Dr. Stephen that defendant had undergone a brain biopsy on April 4, 2006. Due to lack of cooperation from her client, who was refusing to communicate with her attorney or sign authorizations for the release of medical information, defense counsel was unable to document further defendant's medical condition. Defense counsel's motion to be relieved of counsel was denied.
While defendant did not appear in court, she sent a signed note to the judge on the trial date stating:
To whom it may concern: I am still under doctor's care recovering from surgery and on medication. The healing process is taking longer because I am diabetic. My first follow-up appointment is April 27, since the surgery was performed. I tried to fax Ms. Collins but her fax was either busy or there was no answer. I am also asking the Court's permission to defend myself about Ms. Collins' motion to be released and why I felt I want not being properly represented. I do have another lawyer who is willing to take on my case with the Court's written permission. Would you be kind enough to confirm you received this fax?
Plaintiff's counsel objected to the adjournment request, noting that these same type of difficulties had occurred at other ...