On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FM-04-259-89.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and Collester.
This is the fifth time this case has come before us since the parties' 1998 divorce. We need not relate the lengthy procedural history set forth in our prior opinions under docket numbers A-1431-93T1 and A-3734-95T5/A-1950-96T5. This appeal arises from plaintiff's motion to enforce litigant's rights for:
(1) payment of alimony; (2) entry of judgment against defendant for alimony arrears; (3) entry of judgment against defendant for unpaid medical insurance costs and his share of unreimbursed medical and dental care for the children; (4) termination of defendant's child support obligation as of December 31, 1999; and (5) for counsel fees. Defendant filed opposition and a cross-motion to: (1) terminate his alimony obligation; (2) compel an accounting of all monies paid to plaintiff from a constructive trust imposed by the court on January 12, 1996; (3) appoint a receiver; and (4) deny defendant's cross-motion based on unclean hands.
Counsel appeared for oral argument on April 4, 2006. Defense counsel requested an adjournment to address the fugitive disentitlement doctrine, which was raised during the hearing. Judge Page granted the adjournment but required that defendant appear in person before the court on or before the adjourned date. On May 2, 2006, defendant did not appear even though his attorney reported that he recommended he do so. After argument, Judge Page held that the fugitive disentitlement doctrine was applicable. He therefore disregarded defendant's responding papers to plaintiff's motion and dismissed defendant's cross-motion. His order of May 4, 2006 granted plaintiff's requested relief and dismissed defendant's cross-motion without prejudice for further consideration if defendant personally appeared before the court and posted a surety bond to cover all outstanding judgments.
In a lengthy oral opinion on May 2 and May 4, 2006, Judge Page set forth his reasons for applying the fugitive disentitlement doctrine. He summarized defendant's history of deliberate defiance of court orders and his actions to evade their enforcement as well as his adamant refusal to appear in a New Jersey court despite orders so directing and warrants issued for his arrest including an outstanding arrest warrant issued on November 29, 1999.
The fugitive disentitlement doctrine bars a fugitive from seeking relief from the judicial system whose authority he or she evades. Matsumoto v. Matsumoto, 171 N.J. 110 (2002). It is applicable to both civil and criminal cases. Id. at 128-29. In the Matsumoto majority opinion Justice Long set forth the following standards for application of the doctrine:
[T]he party against whom the doctrine is to be invoked must be a fugitive in a civil or criminal proceeding; his or her fugitive status must have a significant connection to the issue with respect to which the doctrine is sought to be invoked; invocation of the doctrine must be necessary to enforce the judgment of the court or to avoid prejudice to the other party caused by the adversary's fugitive status; and invocation of the doctrine cannot be an excessive response. [Id. at 128-29.]
Justice Long underscored that the fugitive disentitlement doctrine is not to be imposed as a punishment, but as an invocation of the court's inherent powers to enforce its orders against those who have evaded them by fleeing either physically or constructively. Id. at 135.*fn1 In this case the record clearly reveals defendant's obstinate refusal to court orders and his efforts to flee from them both physically and constructively.
He has not personally appeared since 1995 or posted a bond as directed. Moreover, Judge Page properly directed that his order refusing to consider defendant's response to plaintiff's motion and dismissal of his counterclaim was without prejudice and would be considered if defendant complied with past orders of the court:
The court will adopt the formula or the ruling in Matsumoto and make it applicable to the present events. As noted in that case, if Edwin Jonas wishes to be heard or appear in this court, "he may do so if he posts a bond in the full amount of the judgments pending against him to assure the enforceability thereof and avoid prejudice" to Linda Jonas.
Specifically this court now determines that upon Edwin Jonas' posting such bond to cover the judgments obtained by Linda Jonas and committing himself to appear personally in New Jersey as soon as possible, at a time mutually agreed upon between the parties and the courts, the ...