December 12, 2007
STEPHEN ROGACKI, PLAINTIFF-RESPONDENT,
NANCY ROGACKI, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 7, 2007
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 stages in the court proceedings.
The trial judge denied the adjournment request and carried the trial until 11:00 a.m. that morning in order to provide defendant with time to come to court. He instructed defense counsel to advise defendant that she had not provided sufficient medical documentation to support an adjournment, stating that "[h]er bare allegation that she is unable to be here is not enough."
Defense counsel reported back that she had faxed her client the information and had told defendant to have her neurologist call the court to update the court on her condition. Defense counsel heard nothing further. The court received no call, so the trial began. Just before the luncheon recess, the court directed defense counsel to contact defendant and advise her that at the conclusion of the trial, he may direct that the marital home, where defendant was then living, be sold. Over the luncheon recess, defense counsel faxed her client again, requesting that she either come to court or have her neurologist call. Neither the court nor counsel heard from either the defendant or her doctor. The trial proceeded. At the conclusion of the testimony that day, the judge once again advised defense counsel to contact her client to give her an opportunity to be present on April 26, 2006, the next trial day, or to provide medical documentation demonstrating that the trial should be delayed.
On April 26, 2007, the court received a number of faxes from defendant. One contained a letter from a Linda Vickery, M.D. dated March 27, 2006, one month earlier, stating that Mrs. Rogacki has "severe depression," that she needs to see a psychiatrist as soon as possible, and that "the stress of a trial may cause . . . a nervous breakdown" and that "[s]he has difficulty with rational reasoning and functioning when she is upset and may well have trouble staying within court protocol or assisting in her own defense." (emphasis supplied). The court also received a note written by Dr. Stephen advising that defendant was "being evaluated and treated for headaches."
The depression described in Dr. Vickery's letter was not a new development. A letter in the record from this same doctor dated January 15, 2003, three years earlier, stated that defendant's "depression makes it hard for her to function and it is currently a struggle to perform the basics of daily living," and noted that defendant had been referred to counseling.
Defense counsel advised that the doctor defendant had seen that day, was willing to speak to the court. The court instructed defense counsel to contact the doctor to determine if he could testify to a reasonable degree of medical certainty that defendant was unable to attend the trial. Defense counsel reported back that two of defendant's doctors could speak to the court later that afternoon, but they only had permission to talk to the judge and so would not talk to her. The court refused to have an ex parte conversation with the doctors, noting that any testimony of the doctors needed to be on the record. The trial judge went on to indicate that he would accept "the most rudimentary of notes indicating that her [defendant's] medical condition is such that she cannot participate in the proceedings or is incapable of understanding the proceedings or assisting counsel in the proceedings, none of which I have." Further, as he earlier noted, the case had been specifically adjourned for several weeks in order to allow defendant the time to obtain the necessary medical documentation; instead, defendant had been uncooperative even with her own attorney. In addition, on both trial days, the judge noted that the communications he received directly from defendant were coherent and demonstrated a clarity of thought. The trial proceeded on that day.
The trial was continued to May 24, 2006, a month later, and once again defendant sought an adjournment due to her medical condition, without any medical documentation to back it up. At this point, defense counsel requested appointment of a guardian ad litem. The trial judge declined to adjourn the trial noting that no medical evidence had been submitted to him indicating that defendant had a legitimate medical or mental problem that prevented her from attending the trial, and stated "if there was the barest information that satisfied me that the interest of justice required that this proceeding be delayed, I would do it."
At the conclusion of the trial, the court allowed counsel to submit written summations, thereby giving defense counsel the opportunity to consult with her client on the content of the summation. (However, written summations were not part of the record before this court.) The court further instructed defense counsel to communicate with her client on the litigation and stated that: "if there is some legitimacy by the barest scintilla of evidence, I may permit her to reopen her case and to afford her the opportunity to present evidence in this case. But I would have to have some documentation which would satisfy me that that should be done in the interest of justice." No such application was made.
The court placed its decision on the record on June 23, 2006. Prior to doing so, defense counsel presented a letter from a psychiatrist, dated May 25, 2006, the day after the last trial date, stating that defendant had a "generalized anxiety disorder, post traumatic stress disorder and major depressive disorder," and that she could not attend court until further notice.
The court proceeded to render its decision. The marriage was dissolved. The marital home, valued at $465,000, (burdened only by a home equity loan of about $4,000) was ordered to be sold and the net proceeds divided equally between the parties. Plaintiff's pension, paying at the time of trial $5,069 per month, was the main source of income for the parties and was also divided equally between the parties. With respect to plaintiff's locksmith business that began as a hobby and became a small business valued at $40,000, the court found that most of the business had been generated after the divorce suit was commenced. As a result, defendant was awarded only $5,000, for the value of this business.
The court found that through "self-help," defendant had withdrawn from marital accounts a total of $47,151.20. The court allowed defendant to keep these monies and also awarded defendant the balance of any other marital accounts over which she had retained control. Plaintiff was allowed to keep his Schwab IRA, last valued at $6,697.19, but the T.B. Waterhouse account, last valued at $5,703.57, was given to defendant. Defendant was allowed to keep the proceeds of her personal injury award totaling $54,963.75, that had been received during the marriage. Plaintiff had made no claim to the personal injury award.
The equitable distribution award and allocation of pension payments were in lieu of alimony. As noted above, defendant will receive half of plaintiff's pension payment, which is his primary source of income. From this source, she will receive the sum of $2,534.50 per month, based on the amount of the pension payment at the time of the divorce. In addition, defendant received the marital accounts noted above. Due to the negligible mortgage on the marital home, her share of the proceeds from the sale of the marital home will be substantial. The trial court did not require plaintiff to provide defendant with life insurance because no alimony is being paid and, at his age, the cost of such insurance would be prohibitive. Provision was made for distribution of the personalty. Due to defendant's bad faith and obstructionist conduct that unduly delayed the proceeding, the court awarded plaintiff counsel fees. Defendant was required to pay plaintiff the sum of $25,000 out of a total fee that exceeded $39,000. The court divided equally between the parties the cost of the joint appraisals of the locksmith business in the amount of $3,500 and of the marital home in the amount of $375.
Defendant raises the following issues on appeal:
I. THE TRIAL ERRED IN DETERMINING A PENDENTE LITE AWARD WITHOUT TAKING INTO CONSIDERATION PLAINTIFF'S COMPLETE INCOME AND ASSETS AND IS INCONSISTENT WITH THE LIFESTYLE MAINTAINED BY THE PART DURING THE MARRIAGE
A. The trial erred in failing to award defendant pendent lite support arrears.
II. DEFENDANT-APPELLANT'S SUBSTANTIVE DUE PROCESS RIGHTS WERE VIOLATED BY NOT BEING ABLE TO ATTEND HER OWN TRIAL
III. THE TRIAL COURT ERRED WHEN IT DETERMINED ISSUES OF EQUITABLE DISTRIBUTION WITHOUT TAKING INTO CONSIDERATION DEFENDANT-APPELLANT'S TESTIMONY REGARDING SAME
IV. THE AWARD FOR COUNSEL FEES IS UNWARRANTED
V. IN THE EVENT OF REMAND, THIS MATTER MUST BE HEARD BY A DIFFERENT TRIAL JUDGE
We reject defendant's argument that the trial court should have appointed a guardian ad litem for defendant. The court rules authorize appointment of a guardian ad litem for an "alleged mentally incapacitated person." R. 4:26-2(b). A guardian ad litem may be appointed (1) "to insure the protection of the rights and interests of a litigant who is apparently incompetent to prosecute or defend the lawsuit," In re Commitment of S.W., 158 N.J. Super. 22, 25-26 (App. Div. 1978); see, e.g., Chambon v. Chambon, 238 N.J. Super. 225, 231 (stating that the appointment of a guardian ad litem should be investigated "if competency was deemed in question"), (2) to advise the court on whether a formal competency hearing is necessary, and if so, to represent the mentally incapacitated person at that hearing, Pressler, Current N.J. Court Rules, comment 3 on R. 4:26-2 (2008), and (3) to represent a person who has been adjudicated mentally incapacitated when the guardian does not appear. Pressler, supra, comment 3 on R. 4:26-2.
The appointment of a guardian ad litem is, therefore, appropriate where either the person is mentally incapacitated or a question of competency is present. In Julius v. Julius, 320 N.J. Super. 297 (App. Div. 1999), the family court judge appointed a guardian ad litem for a defendant husband in a divorce case who appeared to be suffering from confusion and who had refused to attend a court ordered psychological evaluation. Id. at 299-300. While appointment of the guardian ad litem at that point was found to be warranted, once the court received psychiatric evidence that defendant was competent, the appointment "should probably have been reconsidered." Id. at 309-10.
A mentally incapacitated person is one who is "unfit and unable to govern himself or herself and to manage his or her affairs." R. 4:86-2(b). Such a finding by the court must be based on the affidavit of two physicians or one physician and a licensed practicing psychologist. Ibid. Upon such a finding, a guardian is appointed for the person. R. 4:86-6.
While a formal adjudication of incapacity is not a necessary precondition to the appointment of a guardian ad litem, the same standard of incapacity applies. See In re Commitment of S.W., supra, 158 N.J. Super. at 25-26. In order to appoint a guardian ad litem, the court must determine that "the party from any cause, whether by age, disease, affliction, or extreme intemperance, has become incapable and unfit for the government of himself and his property." Id. at 26.
Nothing in this record indicates that defendant was a mentally incapacitated person at the time of this trial, and that this judgment should be aside on that basis. While the doctor who saw defendant a month before the trial states that defendant suffered from anxiety and depression, and the psychiatrist who saw her after the trial also found anxiety, depression, and post traumatic stress disorder, neither doctor suggests that defendant met the legal standard for mental incapacity. "[M]ental illness does not automatically warrant the appointment of a guardian ad litem for the patient." Pressler, supra, comment 3 on R. 4:26-2. Indeed, defendant's depression had been a long standing problem going back at least as far as 2003. No application was made to the trial court to set the judgment aside on the basis that defendant was mentally incapacitated, nor does defendant argue on this appeal that she was mentally incapacitated at the time of trial, requiring the appointment of a guardian.
Further, appointment of a guardian ad litem was not likely to make a material difference in these proceedings, since defendant still could absent herself from the proceeding and defense counsel protected defendant's rights to the extent any guardian ad litem could have done. As a result, no error occurred by denying the application to appoint a guardian ad litem.
Defendant argues that the judgment should be set aside because she was unable to physically and emotionally participate in the trial, and was not even physically present. Indeed, "[e]very litigant is entitled to a day in court. What that means is not mere physical presence in the courtroom but also such mental and emotional stability as is required to participate meaningfully in the process." Chambon v. Chambon, 238 N.J. Super. 225, 232 (App. Div. 1990). However, a defendant may not elect to insulate himself or herself from the adjudication of a claim by refusing to appear at trial.
In Chambon, the defendant wife had been under psychiatric care and had engaged in irrational behavior. Chambon, supra, 238 N.J. Super. at 227. Her attorney moved to be relieved of counsel prior to the trial, due to the defendant's lack of cooperation and increasing depression and irrational behavior, as evidenced by an ex parte visit to the judge's chambers. Id. at 227-28. In addition, defendant herself wrote to the court requesting an adjournment due to her "severe physical illness" and inability to function. Id. at 228. The matter proceeded to a hearing without a ruling on the motion, and defendant's request for an adjournment was ignored. Ibid.
In reversing, the Chambon court noted that the motion to be relieved of counsel should have been decided on the record and that the request for an adjournment should have been addressed. Id. at 231. A psychiatric evaluation, and the appointment of a guardian ad litem, may have been necessary. Ibid. If not, then due to the non-communication between the attorney and defendant, the Chambon court questioned whether the trial should have gone forward. Ibid. In setting aside the judgment, the court further noted the trial court's failure to put adequate findings on the record, the unfairness of the alimony award, and defendant's impaired mental abilities at the time of trial. Id. at 231-32.
The circumstances in this case are somewhat different. Defendant here was not undergoing psychiatric care at the time of the trial, and she did not demonstrate irrational tendencies as the wife did in Chambon. Indeed, the trial judge in this case found defendant's communications to him to be coherent and to demonstrate clarity of thought. Further, the trial judge did not ignore the requests for an adjournment nor the motion to be relieved from counsel. He directly addressed them, providing defendant with every opportunity to present medical evidence that she could not proceed. The trial court even provided defendant with an opportunity to reopen the proceedings. Further, as demonstrated by the January, 2003, doctor's note, defendant's emotional problems were longstanding, and unlikely to clear up with an adjournment. Indeed, her initial requests for adjournments were for physical, not mental health problems. The case at the time of the hearing was over three years old; at some point, the matter had to be adjudicated. Nothing in this record suggests that defendant's emotional state would have improved with a further adjournment.
Finally, unlike the disposition in Chambon, the resolution of this case is eminently fair to defendant. Each party received half of the marital home, the main marital asset. From the marital accounts, plaintiff received only one IRA worth about $7,000, and defendant received the rest of the substantial marital monies. Defendant also kept the $54,000 from her personal injury claim. In addition, she received $5,000 from plaintiff's locksmith business. Indeed, defendant actually received more of the marital assets than plaintiff. While defendant complains that she was not awarded alimony, the fact is that her husband had retired, and his main source of income was his pension. She was awarded half of his pension which amounts to over $2,500 per month. The only other income plaintiff has is his modest locksmith business developed primarily after the separation and which grew to meet the alimony payments; plaintiff testified that he seeks to reduce his work and eventually eliminate it over the next couple of years.
Defendant also asserts a claim for pendente lite support arrears. Plaintiff testified that he thought he was in arrears on support, although he did not know the amount and had not been given all of the credits due to him. The trial court's oral decision and the judgment of divorce do not expressly address the pendente lite support claim. Accordingly, we remand so that this loose end may be addressed. In doing so, we do not suggest that any award must be made, but defendant is entitled to a ruling from the trial judge on this point.
The remaining issues in this appeal are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
In conclusion, we remand only for a ruling on defendant's request for pendente lite support arrears. The balance of the judgment of divorce is affirmed.
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