October 23, 2008
DAWN M. HAZLEWOOD, PLAINTIFF-RESPONDENT,
SYLVAN POECKH, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-1002-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2008
Before Judges Winkelstein and Fuentes.
Defendant Sylvan Poeckh appeals from three post-judgment orders entered by the Family Part in response to motions he filed in this matrimonial case. Specifically, defendant appeals from: (1) an April 2007 order denying his motion for the judge's recusal; (2) a June 2007 order denying his motion for reconsideration of that decision; and (3) a July 2007 order denying a motion to transfer custody, modify child support, and terminate alimony. Defendant argues that the motion judge abused her discretion in denying him the relief requested. He thus seeks reversal of these orders, which would result in the Family Part Judge's disqualification from hearing and deciding any further motions connected to this case.
Before we address the merits of defendant's arguments, we must first acknowledge and overcome certain procedural hurdles.
The record here shows that defendant filed his notice of appeal outside the forty-five-day timeframe provided for in our appellate practice rules. R. 2:4-1(a). We have nevertheless decided to reach the merits of the issues raised by defendant by accepting his untimely notice of appeal nunc pro tunc. We are also satisfied that Judge Bartlett's decision denying defendant's recusal motion was an interlocutory order, requiring defendant to file a timely motion for leave to appeal. R. 2:2-3(b). Defendant did not do so. Here again we have decided to relax our standards of review in this respect, and sua sponte accept defendant's notice of appeal as the functional equivalent of a motion for leave to appeal, thus conferring jurisdiction upon us to review these orders.
We have taken these extraordinary measures because defendant's appeal raises questions impugning the integrity of a sitting judge. Such allegations compel appellate review. As the Supreme Court has recently noted: "The Judiciary derives its authority from the State Constitution but earns the public's confidence through acts of unquestioned integrity. When that trust is shaken--even slightly--our system of justice falters." DeNike v. Cupo, ___ N.J. ___, (2008), slip op. at 11.
After a careful review of the record before us, and in light of prevailing legal standards, we reject defendant's arguments and affirm. Under the circumstances presented to us, Judge Bartlett properly denied defendant's recusal motion.
There is no basis to conclude that Judge Bartlett's impartiality was at any time compromised by defendant's repeated attempts to have her removed from hearing and deciding matters concerning this case. Indeed, despite defendant's unrelenting and unwarranted barrage of personal attacks, Judge Bartlett consistently accorded herself with the utmost professionalism, deciding each of the legal issues before her based only on the relevant facts and applicable law.
We gather the following facts from the record before us.
Plaintiff Dawn M. Hazlewood*fn1 and defendant were married on February 15, 2003. They had twins born June 28, 2002. The parties separated in January 2004; plaintiff filed for divorce shortly thereafter. The case was tried over two days on June 27 and 28, 2005. Judge Dilts entered a dual judgment of divorce (JOD) on June 30, 2005, which incorporated the parties' June 21, 2005 custody and parenting time memorandum of understanding. Plaintiff retained physical custody of the children, with a provision that requires both parties to consult and discuss all matters concerning the children's health, education, welfare, healthcare, and religious upbringing. Defendant had the children for parenting time on Sundays from 11:00 a.m. to 7:00 p.m. The agreement also included a schedule for holidays.
As to child support and alimony, the JOD provided that:
Child Support. Effective July 1, 2005, until August 2007, the child support will be paid at the rate of $1,083 per month ($250 per week) for the two children of the marriage....
Alimony. Effective July 1, 2005, for the month of July 2005 until August 2007, defendant shall pay to plaintiff the sum of $1,733 per month ($400 per week) as limited duration alimony....
Future Child Support. Upon the children entering kindergarten, the child support will be recalculated pursuant to the child support guidelines using full time income for the plaintiff (imputing $38,000 if she is not working) and current income for the defendant adding in the cost of after school care.
Six months after the entry of the JOD, defendant filed his first motion seeking termination of his alimony obligations. In support of the motion, defendant argued that the children's participation in an "early intervention" pre-school program, running from 8:30 a.m. to 3:00 p.m., left plaintiff free to seek employment, an event not anticipated at the time of the divorce. The trial court denied the motion, reasoning that the longer than anticipated day care hours were not a sufficient change of circumstances to warrant termination of defendant's alimony obligations.
Approximately six months later, in August 2006, defendant learned that his father, then living in Washington State, had been diagnosed with esophageal cancer. He thus planned to travel to Washington and care for his ill father for a period of six to eight weeks. On August 29, 2006, defendant filed an order to show cause requesting that the trial court suspend his alimony and child support obligations for an eight week period.
That same day, Judge Bartlett granted defendant's application and temporarily suspended alimony and child support until the return date of the order to show cause, a period of eight weeks.
The matter next came before Judge Bartlett on October 27, 2006, when the parties appeared to argue defendant's order to show cause. On October 30, 2006, Judge Bartlett entered an order granting in part and denying in part defendant's prayer for relief. Specifically, she ordered that:
No alimony or child support arrearages shall be subject to enforcement proceedings so long as they are paid back at a rate of $100 per week, in addition to full payment of his ongoing support obligation being current. His current child support obligation is not modified for the period of Defendant's non-payment.
Reasons: Although the court temporarily suspended enforcement of Defendant's support obligations for 8 weeks, the children's financial needs were not suspended. The court granted this relief to Defendant on an emergent basis. While this relief is no longer necessary because Defendant has resumed working, he is obligated to bring his account current at $100 per week or probation will be entitled to commence enforcement procedures.
On March 12, 2007, defendant filed a motion on short notice requesting that Judge Bartlett recuse herself from the parties' case. In a certification in support of his motion, defendant made numerous allegations of bias against Judge Bartlett.
Defendant alleged that the Judge erroneously and prejudicially refused to hold fact-finding hearings on the issues of: (1) the propriety of a temporary restraining order filed by plaintiff in September 2003 and then quickly dropped; (2) the discrepancy between the parties' respective calculations as to defendant's annual income; (3) the nature and extent of the parties' children's alleged "special needs;" (4) whether plaintiff had a part-time job, and whether she was being paid "under the table;" and (5) whether plaintiff had family members living with her and providing her with financial support.
On the question of Judge Bartlett's alleged bias, defendant claimed that the Judge: (1) forced him to live in poverty while refusing to require plaintiff to seek practicable employment; (2) refused to entertain defendant's evidence of changed circumstances regarding plaintiff's living arrangements and earning capacity; (3) refused to sanction plaintiff for failing to update her Case Information Statement with the alleged changes in plaintiff's living arrangements and earning capacity; and (4) refused to sanction plaintiff for violating previous court orders by liquidating certain stocks which were part of marital assets. Defendant concluded his certification by accusing Judge Bartlett of gender bias.
After duly considering defendant's contentions at oral argument, Judge Bartlett denied the motion. She gave the following reasons for her decision:
Defendant details several previous orders that he is dissatisfied with dating back to pendente lite orders in his divorce litigation. He claims that these stem from this Judge's bias towards divorced fathers. All of the issues addressed by defendant in his motion would be more appropriately issues for either motions to reconsider and/or Appellate Division review.
The Court in Panitch v. Panitch, 339 N.J. Super. 63, addressed this issue stating that "The disposition of [a motion for a judge's recusal] is, at least in the first instance, entrusted to the "sound discretion" of the trial judge whose recusal is sought. (quoting Magill v. Casel, 238 N.J. Super. 57.) "The mere appearance of bias may require disqualification... However, before the court may be disqualified on the ground of an appearance of bias, the belief that the proceedings were unfair must be objectively reasonable." State v. Marshall, 148 N.J. 89. Here, the court does not find that any allegation of bias is objectively reasonable.
Defendant is not a lawyer and therefore misunderstands some of the court's determinations. He criticizes the court for not swearing in plaintiff to verify the certification she filed; he does not realize that a certification is a sworn statement. He states that N.J.S.A. 9:2-4 gives him the right to "equal custody" meaning "equality of parenting time;" it in fact gives him equal rights to custody of his children. In many instances defendant criticized the judge for believing plaintiff's certified facts even though they were uncontroverted by defendant, such as the amount of his income, the expenses paid by defendant during the marriage, the children's special needs. He also doesn't realize that the court can not enforce its orders without an application for enforcement, e.g., regarding plaintiff's return to work.
The court thereafter denied defendant's motion for reconsideration.
While defendant's reconsideration motion was pending, plaintiff filed a motion requesting that defendant be compelled to undergo a psychological evaluation. Defendant filed an opposition to this motion, and crossed moved for the imposition of sanctions against plaintiff, termination of alimony, modification of child support, and transfer of custody.
On July 6, 2007, Judge Bartlett denied plaintiff's motion for a psychological evaluation of defendant and denied all of defendant's requested relief. She gave the following reasons for denying defendant's application:
[D]EFENDANT'S REQUEST to transfer custody of [the] parties' children to defendant's care is DENIED. The defendant shall submit to the plaintiff color pictures of his current accommodations including pictures of the children's bedroom (with separate beds), and the common areas in defendant's home. If plaintiff is satisfied with these accommodations, the parties shall negotiate a parenting schedule which includes overnights for the defendant. Failing agreement, defendant may provide the pictures to the court with a motion proposing a specific parenting time schedule.
Here, the defendant fails to meet his burden of proof showing that it is in the best interests of the children to take the drastic step to transfer residential custody from plaintiff to defendant. The defendant's remarriage or plaintiff's alleged inability to maintain relationships is not evidence that his home is more stable than the plaintiff's home. The children attend therapy sessions near the plaintiff's home that are very crucial to children with developmental disorders. Further, the physicians, health care professionals, and schools with which the children are comfortable all [sic] near the plaintiff. For the foregoing reasons, the court does not find that a change in custody is warranted at this time.
However, the court does find that there is a change in circumstances that warrants a review of the parties' parenting time plan. Pursuant to the parties' Custody and Parenting Time Memorandum of Understanding which was incorporated into the parties' Judgment of Divorce, the parties were to discuss and be flexible with regard to overnight visitation once defendant is able to accommodate overnights. Defendant asserts that he is now able to accommodate overnight visitation. He further contends that plaintiff is not being flexible with regard to this request. However, defendant has not proposed a new parenting time schedule. Also, plaintiff needs to be satisfied that defendant has adequate accommodations for the children to have overnight visitation. She cannot act unreasonably in this regard. If she is satisfied, the parties should then determine an appropriate parenting time schedule including overnights. The court finds that overnight visitation is in the children's best interests so that they can maintain a close relationship with the non-custodial parent.
If the plaintiff refuses to negotiate a schedule of overnight parenting time, or the parties cannot agree, defendant may bring the issue back to the court with appropriate proofs.
DEFENDANT'S REQUEST to sanction plaintiff with costs, fees, expenses and other remuneration to be paid to defendant pursuant to Rule 1:4-8(f) and N.J.S.A. 2A:15-59 (frivolous litigation statute) for bringing the within motion in DENIED. Reasons: While the court does not grant plaintiff's request for a psychological evaluation of defendant, the court does not find that this request rises to the level that would warrant a sanction....
DEFENDANT'S REQUEST to terminate alimony and any alimony arrearages retroactively to June 29, 2005 is DENIED.
At the time that the Judgment of Divorce was entered in June of 2005, defendant was earning $80,000 based on his certification. Judge Dilts, when calculating child support, set his income at $1,577 per week, or $82,000 per year. The court finds this difference immaterial. Plaintiff was earning nothing. Judge Dilts set defendant's alimony obligation at $1,733 per month. Thus, prior to the child support calculation, Defendant had approximately $60,000 gross annually in which to support himself and with which to pay child support. After the child support calculation, which, contrary to defendant's assertion, does include the amount of alimony paid to plaintiff, the defendant's total support obligation is $2,816 per month-$1,083 per month in child support and $1,733 per month in alimony. These support amounts have not been modified since Judge Dilts ordered them in the parties' Judgment of Divorce. From defendant's gross income of approximately $80,000, defendant must pay $33,792 to plaintiff in child support and alimony per year. Thus, plaintiff receives $33,792 before taxes per year on which to support herself and two children. Defendant has $46,208 before taxes on which to support himself. Considering that defendant will be paying more in income and withholding taxes, the court finds that the two parties are in financial parity such that a recalculation of alimony is not warranted retroactive to the judgment of divorce. Plaintiff submitted several paycheck stubs the most recent of which is from May 18, 2007. This indicates that his year to date gross income is $30,440.28 up to May 11, 2007. This represents an annualized rate of approximately $83,300 which is comparable to the amount that defendant earned when alimony was initially determined. The court notes that defendant's income was $72,000 in 2006, however this downward deviation was not permanent is not so significant as to warrant a modification. Moreover, his Pennsylvania and federal taxes totaled $3,623 in 2006, leaving defendant $34,789 in 2006 for his own needs after payment of alimony and child support of $33,796 for plaintiff and 2 children.
Defendant complains of financial hardship as a change in circumstances; however, based on the above analysis the court does not find that any exists. Defendant also raises the issue of his remarriage as a change in circumstances; the court does not find that this change in non-financial circumstances warrants a review of defendant's alimony.
Regarding defendant's allegation that plaintiff is earning unreported income from her parent's painting business, the court agrees with defendant that such income would impact the alimony and child support calculation. However, defendant does not provide any credible corroboration for this assertion. Similarly, the court learned for the first time that, according to defendant, plaintiff's parents live with her, but defendant provides no details, including whether this is a change in circumstances from when the parties divorced.
DEFENDANT'S REQUEST to modify child support is DENIED, without prejudice. Either party may reapply for this relief once defendant's increased parenting time has commenced as well as the termination of alimony and/or upon plaintiff's return to work.
The Lepis court provided the procedure for modification of support orders. First, the moving party bears the burden of showing that there are permanent and substantial changed circumstances. Lepis v. Lepis, 83 N.J. 139 (1980). Examples of changed circumstances are found in (1) an increase in the cost of living, (2) an increase or decrease in the supporting spouse's income, (3) an illness or disability arising after the original judgment, (4) dependent spouse's loss of a house or apartment, (5) subsequent employment by the dependent spouse, and (6) changes in the tax laws. Id. at 151. Second, after the moving party has made the prima facie showing of changed circumstances, the court may order financial disclosure of both parties to allow the court to make an informed decision as to "what, in light of all the [circumstances] is equitable and fair." Id. at 158, quoting Smith v. Smith, 72 N.J. 350 (1977).
Here, the parties have not undergone a substantial and permanent change in circumstances that would warrant a modification to defendant's support obligations. However, both parties are about to undertake such changes. Defendant's alimony obligation terminates as of August 2007. Further, if defendant starts overnight visitation, then his overnights will impact the child support amount.
When the defendant or plaintiff reapplies for this relief, defendant can again address the imputation of income to plaintiff. The court finds that, given the limited duration alimony structure that was ordered by Judge Dilts, the court will not impute income to plaintiff at this time. Implicit in Judge Dilts' decision to terminate alimony as of August, 2007, is that plaintiff is expected to be working to support herself at that time, not before.
DEFENDANT'S REQUEST that plaintiff's former attorney,... answer to allegations of "ghost-writing" plaintiff's papers, and be subject to sanctions and referral to the local ethics panel for further sanctions is DENIED.
Reasons: The District Ethics Committees supervised by the New Jersey Supreme Court have exclusive jurisdiction over all allegations of ethical infractions.
We now turn to defendant's arguments on appeal. Defendant argues that Judge Bartlett erred in denying his motion for her recusal. We disagree. A party in any contested matter may move to recuse the judge presiding over the case. R. 1:12-2. Such a motion must be brought to the judge whose disqualification is sought. N.J.S.A. 2A:15-50; Bonnet v. Stewart, 155 N.J. Super. 326, 330 (App. Div.), certif. denied, 77 N.J. 468 (1978). The disposition of the motion is, at least in the first instance, entrusted to the "sound discretion" of the trial judge whose recusal is sought. Magill v. Casey, 238 N.J. Super. 57, 63 (App. Div. 1990).
We review a motion for recusal based on alleged bias or prejudice of a trial judge after reviewing the entire record in the case. Mercer v. Weyerhaeuser Co., 324 N.J. Super. 290, 298 (App. Div. 1999) (citing State v. Zwillman, 112 N.J. Super. 6, 20 (App. Div. 1970), certif. denied, 57 N.J. 603 (1971)). Although "the mere appearance of bias may require disqualification," disqualification based on appearance of bias must be grounded on an objectively reasonable belief that the proceedings were unfair. State v. Marshall, 148 N.J. 89, 279, cert. denied, 522 U.S. 850, 139 L.Ed. 2d 88, 118, S.Ct. 140 (1997).
Here, defendant's allegations of bias against Judge Bartlett implicate Canons 2A and 3A(3) of the Judicial Code of Conduct. Canon 2A provides:
A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
Canon 3A(3) provides:
A judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity, and should not permit lawyers, court officials, and others subject to the judge's direction and control to display impatience or discourtesy or to detract from the dignity of the court.
Here, after carefully reviewing the entire record, we find no basis to conclude that Judge Bartlett erred in denying defendant's motion. We have taken the time to cite, at times at length, Judge Bartlett's reasons for her various rulings to illustrate the depth of her commitment to give both parties in this case a fair and impartial assessment of the legal and factual issues raised.
The record also shows that Judge Bartlett displayed, and consistently retained, remarkable composure and professionalism in the face of defendant's discourteous and confrontational demeanor. The following exchange between defendant and Judge Bartlett during oral argument on the motion for reconsideration of the denial of recusal illustrates the point.
DEFENDANT:... I'm tired of being in front of a judge who has committed criminal acts against me. Okay?
THE COURT: Mr. Poeckh-
DEFENDANT: It's criminal-
THE COURT: That motion [referring to plaintiff's motion to compel a psychological evaluation of defendant]-
DEFENDANT: It's official misconduct.
THE COURT: That motion is not before me, Mr. Poeckh.
DEFENDANT: It's a pattern of official misconduct.
SHERIFF'S OFFICER: Let her finish.
DEFENDANT: This gentleman, please, have him sit down [referring to the sheriff's officer].
THE COURT: No.
DEFENDANT: I have a right to be here and state my case.
THE COURT: I will have my officer-
DEFENDANT: You will not intimidate me.
THE COURT:-conduct himself as he sees fit.
DEFENDANT: You will not intimidate me.
SHERIFF'S OFFICER: Let her finish.
THE COURT: He is in charge of security in this courtroom, Mr. Poeckh.
DEFENDANT: Am I a threat?
THE COURT: Listen to me-
DEFENDANT: Answer my question. Am I a threat?
THE COURT: You are a threat to the orderly conduct of this argument because you have gone now to an argument that isn't even before the court. It has-it's been filed, but hasn't been served on the court. You have not responded. That is not before the court.
What is before the court is a motion for reconsideration of my determination that I would not recuse myself in your case.
It's not about your parenting time. It's not about weekends. It's not about your income or your child support. Those are all motions that were decided months ago, and your recourse was to the Appellate Division or a motion for reconsideration before this court. You didn't file a motion for reconsideration. You didn't go to the Appellate Division.
The officer is the security person in this courtroom. He'll go where he wants to go. He'll speak when he chooses, and he'll act as he chooses.
Mr. Poeckh, I've asked you to seek legal representation because there are so many mistakes here that I can't begin to explain all of them.
Later in the argument, Judge Bartlett said to defendant:
THE COURT: Mr. Poeckh, I have no interest in keeping your case. I don't want to sit here and have these dialogues with you one Friday a month or every other month or even once a year. But you have not demonstrated to me that there is a basis under the law for me to recuse myself. You have not demonstrated a bias, gender or racial or in any other form at all. You haven't begun to demonstrate any basis for recusal.
There are a lot of cases in Somerset County, and at the moment two of us are handling all of them because the third judge has administrative duties.
I can't just, because I don't like having you come in and call me names, I can't just give that case to another judge-your case to another judge. There have to be standards, and you haven't met them.
If you think there is some kind of bias here, that I have taken uncertified or [not]provable facts, then put yourself,-start applying the same standard to yourself as you apply to the plaintiff in this case. Have you demonstrated to me that she lied? Have you provided proof that she liquidated some stock? Have you provided proofs that back up all the things that you say? No, you haven't.
Finally, Judge Bartlett also said to defendant:
THE COURT: Judges admit bias when it exists and recuse themselves every day. There are many reasons why a judge will feel that the situation has crossed the line.
Here, I just have your bald allegations that I have violated your rights. The last time you said you were going to the Prosecutor's Office to have me prosecuted criminally after you left the courtroom.
Your concepts are so far beyond what the law is about, that, frankly, it's hard to take a lot of what you say seriously.
You need to speak with a lawyer-even if you don't hire a lawyer, speak with a lawyer and find out how these concepts are applied in family law. Find out about the standards for modifying a custody arrangement, find out about standards for modifying child support. Find out what the 16 custody factors are that the court has to look to when discerning a new parenting plan.
You have remedies. You've made bald allegations. You have not demonstrated to me any standard that would allow me to recuse myself.
So the Appellate Division-whatever remedies you think you have, you have to pursue them.
As this colloquy shows, despite defendant's borderline contemptuous conduct, Judge Bartlett consistently addressed defendant in a respectful manner. She repeatedly attempted, albeit without success, to instruct and guide defendant to limit his presentation and remarks to the legal issues before the court. She also urged defendant to retain competent counsel who could assist him in presenting the issues to the court in a legally acceptable manner. Her efforts, however, were rudely rebuffed by defendant whose only interest seemed to be to intimidate and bully the court into submission. To her credit, Judge Bartlett never lost sight of the overriding principles involved; nor did she permit herself to be goaded by defendant into committing an act of incivility.
We recognize, as did Judge Bartlett, that at the end of a marriage, there are legal, economic, and personal entanglements that persist beyond the legal dissolution of the relationship.
These highly personal issues often give rise to deeply felt emotional reactions. Judges are therefore trained to understand that courtrooms sometimes become the forum where these strongly held, though legally misguided beliefs are expressed. There is no justification, however, for any one so involved, no matter how emotionally invested in their views, to unleash a barrage of unwarranted accusations against the judge presiding over the proceedings. There is no place in our jurisprudence for parties to engage in motion practice that serve only to unduly consume judicial resources, and further cement the emotionally laden, intransigent positions of those involved.
The balance of defendant's arguments directed at the court's denial of his motion to transfer custody, terminate alimony, and modify child support lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We thus affirm substantially for the reasons expressed by Judge Bartlett in her various memoranda of opinion.