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K.M. v. S.S.M.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 31, 2008

K.M., PLAINTIFF-MOVANT,
v.
S.S.M., DEFENDANT-RESPONDENT.

On motion transferred from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1254-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 15, 2008

Before Judges C.S. Fisher and Grall.

This matter has come before us as the result of the trial judge's transfer of a motion that was filed in the Family Part by plaintiff K.M. in this pending matrimonial action. The parties are in the midst of a trial, although they have not provided sufficient clarity or detail by which we may determine the trial's current status. In any event, we assume that the procedural squabble at hand has had the unfortunate consequence of causing the trial to come grinding to a halt.

Plaintiff's motion was prompted by events that occurred in a different forum and, we assume, after the matrimonial trial was commenced. On May 4, 2007, plaintiff received written notification from the Division of Youth and Family Services (Division) that the Division had both substantiated his abuse and neglect of the children of the marriage and would include his name in the Central Abuse Registry. Plaintiff claims he timely demanded an administrative appeal of the Division's ruling.*fn1

There appears to be no dispute that the Division did not refer plaintiff's administrative appeal to the Office of Administrative Law (OAL). As a result, plaintiff moved in the Family Part for an order:

1. consolidating the issues he claims should have been referred to the OAL with the pending matrimonial action;

2. directing the Division to take all necessary steps to perfect plaintiff's administrative appeal;

3. "confirming" that an earlier Appellate Division order permitted the trial judge to determine whether the children of the marriage were abused or neglected as defined by N.J.S.A. 9:6-8.9;

4. directing that any finding by the trial judge of abuse or neglect "shall be dispositive" of plaintiff's administrative appeal;

5. directing the Division to remove plaintiff's name from the Central Abuse Registry if the trial judge makes a finding that the children were not abused or neglected;

6. directing that, "irrespective" of whether the Division chooses to participate in the matter following consolidation, the Division shall be collaterally estopped from contesting the trial judge's findings in "any subsequent proceeding";

7. directing "that all records, reports, documents and testimony relating to any allegation of abuse which would otherwise be kept confidential in a court proceeding initiated by the Division . . . shall remain confidential consistent with N.J.S.A. 9:6-8.10a and prior rulings" of the trial court; and

8. awarding counsel fees and costs to plaintiff's counsel.*fn2

For the reader's ease, we refer to each separate request for relief in this motion by its number, e.g., Part 1 refers to the motion to consolidate.

On April 28, 2008, the trial judge rendered a written decision and entered an order transferring the motion to this court.

As a general matter, in considering this motion and all its parts, the trial judge correctly observed that he lacked jurisdiction to grant relief regarding the agency matter. It is the Appellate Division that has exclusive jurisdiction over an agency's final decision as well as an agency's failure to act. As the Supreme Court has held, our court rules, see R. 2:2-3(a)(2) and 2:2-4, contemplate that "every proceeding to review the action or inaction of a state administrative agency [shall] be by appeal to the Appellate Division." Pascucci v. Vagott, 71 N.J. 40, 52 (1976) (emphasis and internal quotes deleted) (quoting Central R.R. Co. v. Neeld, 26 N.J. 172, 185, cert. denied, 357 U.S. 928, 78 S.Ct. 1373, 2 L.Ed. 2d 1371 (1958)). See also Sod Farm Assocs. v. Twp. of Springfield, 366 N.J. Super. 116, 131-32 (App. Div. 2004); Hospital Ctr. at Orange v. Guhl, 331 N.J. Super. 322, 329 (App. Div. 2000).

Having correctly applied these principles, and having concluded that this court possesses exclusive jurisdiction over plaintiff's indirect attempts to remedy the agency's inaction,*fn3 the trial judge transferred the motion to this court. To bring these issues to a head, plaintiff filed a motion for summary disposition; other procedural motions have also been filed in this court.

Although we find no fault in the trial judge's recognition that he did not have jurisdiction of Parts 1 and 2 of the motion, and despite our misgivings about the limits of R. 1:13-4(a) mentioned above, we will consider Parts 1 and 2 on their merits. And, although we conclude that the judge need not have transferred the remainder of the motion and could have disposed of Parts 3, 4, 5, 6, 7 and 8 without treading on our exclusive jurisdiction, in the spirit of expeditiously resolving these issues, we have considered these other requests and they are either premature or wholly without merit.

In deciding Part 1, we must first determine what it is that plaintiff would have consolidated with the pending matrimonial action. As we have observed, a claim that the children were abused by plaintiff was substantiated by the Division, which directed the inclusion of plaintiff's name in the Central Abuse Registry, following which plaintiff apparently attempted to administratively appeal that determination. The Division, however, did not refer the matter to the OAL, and, as a result, plaintiff filed this motion, which the trial judge transferred to us, seeking relief from the Division's inaction. Plaintiff, in seeking consolidation, would have had the trial judge consider the evidence that would have been put before the OAL --assuming there is merit to plaintiff's claim that the Division should have referred the matter to the OAL -- and then make whatever findings the OAL would be entitled to make based upon that evidence.

Plaintiff, of course, has the right to seek relief from the agency's failure to allow the administrative appeal to go forward, but plaintiff should have sought that remedy from this court through the filing of a notice of appeal and not by way of a motion that would have the trial judge grant that remedy and take jurisdiction over the administrative appeal. As already mentioned, we view agency inaction as we view a final agency decision. When an agency fails to take steps required of it --steps that would ultimately lead to a final decision -- then the agency's failure to act is appealable to this court. Pascucci, supra, 71 N.J. at 52. It is true, as plaintiff argues, that at times this court remands matters, over which it has exclusive jurisdiction, to the trial court for fact finding; we occasionally do this to obtain the development of a record through a plenary hearing, which cannot be feasibly or practicably conducted in an appellate court. See, e.g., Hospital Ctr. at Orange, supra, 331 N.J. Super. at 329-30; Trantino v. N.J. State Parole Bd., 296 N.J. Super. 437, 460 (App. Div. 1997), modified on other grounds, 154 N.J. 19 (1998). That does not mean, however, that a litigant may either decide for himself when that record must be developed or unilaterally select the forum for its development by commencing proceedings in the trial court. Plaintiff had no right to seek review of the agency's inaction in the trial court by way of this motion. If the agency erroneously failed to process the administrative appeal within the time required, plaintiff's only avenue for relief was by way of appeal to this court. Because plaintiff has not filed a notice of appeal, there is no pending matter to be consolidated with the matrimonial action. For this simple reason alone, we may deny the motion to consolidate.

Even if plaintiff had filed a notice of appeal and sought our review of the agency's inaction, or even if plaintiff files such an appeal in the future,*fn4 and at the risk of being accused of uttering dictum or issuing an advisory opinion,*fn5 we would not permit consolidation of that appeal with the pending matrimonial action. First, as we observed at the outset, the parties have not adequately described the progress of the matrimonial trial. We have no way of knowing what percentage of the trial remains to be completed, and we have been provided with only the most general comments about its status. As indicated in the February 2, 2007 order entered by this court on an earlier emergent application, the trial was scheduled to commence on February 15, 2007 -- 17 months ago.*fn6 Plaintiff simply indicates in his submission that the trial is "underway" and that he does not anticipate its completion for "months (or years)." In addition, defendant's submission suggests that all the experts regarding the allegations of abuse have already testified: "[a]s the trial proceeded and evidence was presented, the overwhelming majority of the experts involved in this case substantiated child sexual abuse." And, in its brief in opposition to consolidation, the Division refers to the trial as already being "lengthy" and asserts there has been "a multitude of hearing dates for over one year."

The lack of clarity about the status of the trial is highly relevant because consolidation would inject the Division and its counsel into the trial. Since the trial started and has proceeded without the Division, it would appear likely, in fairness to the Division, that if consolidation was permitted, at least some part of the trial would have to be repeated. The rule-based right to consolidation turns on, among other things, an analysis of the need to avoid inconsistent rulings with the importance of conserving judicial resources. See R.K. V. A.J.B., 284 N.J. Super. 687, 696 n.6 (Ch. Div. 1995); Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. Super. 143, 144 (Ch. Div. 1951). Without knowing the extent to which the interests of judicial economy will be impaired and the cost to the parties enhanced*fn7 if a mistrial must be declared or at least some part of the trial repeated, we cannot say whether it would serve the efficient administration of justice to consolidate the appeal, which has yet to be filed, with the ongoing matrimonial trial. In the same vein, we have not been informed as to what portion of the trial will be (or has been) devoted to the allegations of abuse and neglect that are of interest to the Division and what portion deals with other matrimonial issues that are undoubtedly of no interest to the Division. In short, the practical effect of consolidation and the fairness of entering an order that would require the Division's participation cannot be adequately analyzed on this record.

Moreover, plaintiff's nascent appeal of the Division's inaction is geared to one of two possible resolutions. As a general matter, we might conclude in such an appeal that the matter should either be heard in the OAL and thereafter require that it follow the normal course of such matters, or we might hold that the Division was permitted to choose not to refer the matter to the OAL. The judicial process in administrative matters is markedly different from the factfinding process in which the trial judge is now engaged in the matrimonial action, and we can find no compelling nexus between the adjudication of the matrimonial action and the disposition of an appeal of the Division's inaction such as would warrant our granting the extraordinary relief sought by plaintiff. The former involves the hearing of testimony and weighing of other evidence; the latter involves, first, appellate review of the Division's inaction that will either end the matter or require referral for factfinding by a body that has expertise in such matters and that is not bound, as is the matrimonial judge, to a strict application of the rules of evidence, followed by consideration by the agency head, and appellate review in this court. The proceedings are thus simply too different to warrant consolidation. We would also observe that administrative proceedings are intended to be expeditious affairs. The apparent languid pace of the trial in this matrimonial action provides sharp contrast between the matters that plaintiff would have us consolidate. We conclude that even if there existed another proceeding to join with the matrimonial action we would not permit consolidation. Part 1 of the motion is denied.

Part 2, by which plaintiff sought an order from the trial court (and now from us) that would compel the Division to perfect plaintiff's administrative appeal, must also be denied, although without prejudice. As we have held, the avenue for seeking such relief is by way of appeal to this court -- a step plaintiff has yet to take. Until plaintiff commences an appeal, we offer no opinion about the Division's alleged inaction in the administrative matter.

Of relevance to Part 3 is the fact that, over eighteen months ago, defendant sought leave in the trial court to file a complaint against plaintiff alleging the abuse or neglect of the children pursuant to Title 9. That request was denied by the trial judge, and defendant sought emergent interlocutory relief from this court. By order entered on February 2, 2007, a different panel indicated that it was "satisfied that the issues raised by defendant in her Title 9 complaint will be thoroughly addressed at the hearing scheduled to commence on February 15, 2007." Part 3 of plaintiff's motion would have us now "confirm[]" that the February 2, 2007 order authorizes the trial judge to resolve defendant's Title 9 allegations. We decline the invitation to interpret an order issued by another panel or to otherwise entertain the parties' dispute -- to the extent there is a dispute -- about the meaning of the order. If plaintiff actually harbors some apprehension about the order's meaning, he should have timely moved before that panel for reconsideration.

By way of Parts 4, 5 and 6, plaintiff seeks an order that would impose preclusive effect on any positive or negative finding of abuse or neglect. We refuse to reach these issues because they have not yet been considered by the trial court or by the agency. In light of the inadequate record presented to us, it would be quite impossible for us to determine the issues raised in these aspects of the motion. Indeed, we question how any court could determine the preclusive effect of findings that have not yet been rendered. Plaintiff's requests for relief are, at best, premature in any forum, and, accordingly, we dismiss without prejudice Parts 4, 5 and 6 of the motion.

We discern no particular controversy about the issues raised in Part 7. Again, we will dismiss that part of the motion without prejudice; the issue may be pursued again in the trial court, if necessary.

Lastly, by way of Part 8, plaintiff seeks an award of counsel fees. In light of the lack of merit in those aspects of the motion that are not premature, we find no cause to award fees in plaintiff's favor.

In summary, we deny Parts 1, 2, 3 and 8, and we dismiss without prejudice Parts 4, 5, 6 and 7. Together with our rulings on certain ministerial motions that were filed in this court after the transfer, which we have decided by way of separate orders, our rulings herein complete the proceedings now pending in this court.


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