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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...