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Thelmo v. Thelmo

November 19, 2008

FRANKLIN THELMO, PLAINTIFF-APPELLANT,
v.
ROSE THELMO, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-14125-86.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 6, 2008

Before Judges Fisher and Baxter.

After carefully considering the arguments raised in this appeal, we agree with plaintiff Franklin Thelmo's contention that the trial judge should have disqualified himself due to the judge's past employment of and past attorney/client relationship with Franklin's second wife. As a result, we vacate the order that denied Franklin's motion to terminate his alimony obligation to his first wife, defendant Rose Thelmo, and remand for new proceedings before a different judge.

The record reveals that the parties were married in 1963 and that Franklin commenced this divorce action against Rose in 1985. A judgment of divorce was entered in 1989. Although it is claimed that the judgment is no longer available, the parties do not dispute that it obligated Franklin to pay $450 per week in permanent alimony to Rose.

Franklin filed his motion for the termination of alimony on January 26, 2007. He asserted he was 73 years of age and, because of poor health, was no longer able to practice surgery and "had practically no income." Franklin also argued that, due to the passage of time, the parties' financial circumstances at the time of the divorce are presently "unknown and, practically, unknowable," suggesting that, at the very least, a plenary hearing was required to reconstruct the circumstances existing in 1989 and to ascertain whether or to what extent present circumstances are markedly different.

In addition, Franklin asserted that his ability to pay alimony was impacted by his obligations to pay support to his second wife, Evamarie, as well as the "continued educational requirements" imposed on him regarding the children of his second marriage. The record indicates that, at that time this motion was heard, Franklin's obligations to Evamarie had been the subject of litigation before another judge in the same vicinage.

In light of the fact that Evamarie was the trial judge's secretary while he was in private practice, Franklin moved for the judge's disqualification. During the March 9, 2007 proceedings, the trial judge acknowledged that Evamarie "was a secretary of [his] for a number of years many years ago." The judge also recognized that he knew there had been post-judgment disputes in the divorce action between Franklin and Evamarie before another judge:

I've had an occasion to talk to [the judge in the Franklin-Evamarie case] to find out the procedural status of the other case. [That judge] tells me that there's an application or an Order, I guess, by [Evamarie] to enforce certain provisions of an Order against [Franklin] and that that was stayed and the enforcement is being appealed to the Appellate Division. But [the judge] tells me that there is, in fact, no application by [Franklin] for a reduction of his support obligations that is presently pending in that case. So I don't know that there's anything for one case to be joined into the other case.

Rose's attorney argued that the status of the other action rendered premature Franklin's application for disqualification, prompting the trial judge to say:

Yes. I mean, it would seem to me if anybody was going to complain about me being involved in this case, it would be [Rose] because she might fear that I was going to prefer spending the money on [Evamarie] and her children to [her] detriment. . . . I can't see where [Franklin] has any legitimate basis to be concerned about the fact that his other wife was my secretary a number of years ago.

I'm going to deny that request at this time, Mr. Popovitch. You may be right. I mean, as things progress, it may determine at some point in time that there's a trial that involves both of these two matters. And if that takes place, I certainly would agree that I could not handle a case that wherein my former secretary was a party. But at this time, as I see it, she's basically a disinterested stranger to the proceedings between [Franklin and Rose].

I acknowledge that there's some tie-in tangentially, but I don't see where my involvement is in any way detrimental to [Franklin]. I think Rose Thelmo may decide she doesn't want me in the case and I'd probably have to honor it if that's the case. But I can't see where [Franklin] can be ...


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