On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-773-06.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Waugh and Ashrafi.
Defendant-wife, Rekha Chandok, appeals from a judgment of divorce, entered on June 26, 2007, following a twelve-day trial, which addressed child support, alimony and equitable distribution. Among other things, defendant specifically challenges an order of December 6, 2006, denying her motion to recuse the trial judge. The motion was premised on defendant's assertion that she could not receive a fair and unbiased hearing because of the prior relationship of the trial judge and her attorney. The assertion was based on the breakup of the law firm in which the judge and defendant's trial attorney were partners, and the resulting acrimonious litigation between the judge and her attorney.
Following the trial, the judge concluded that plaintiff- husband's interests in his business and investments, and in the marital home in Saddle River, were acquired with family gifts and therefore exempt from distribution, as were defendant's holdings in India. In light of defendant's exempt assets and her imputed income "in the very least . . . sum of approximately $513,500 annually," the judge further determined that defendant was not entitled to alimony. Plaintiff, who claimed to have supported the children, was ordered to continue doing so with respect to the parties' unemancipated son, but "no award [was] granted over and above the amount of husband's maximum obligation under the Child Support Guidelines" of $188 a week.
"Any further or enhanced needs of the children [were to be] paid by wife in view of her income substantially greater than that of the husband." The parties were "granted joint legal custody," but defendant was "granted primary residential custody" of the son. Defendant was also ordered to "pay the balance of fees in the amount of $41,500 to Seymour Rubin, CPA, discovery facilitator." The judge invited an application for counsel fees to "be addressed by the Court post-judgment." However, the record does not reflect any such award.
On this appeal, defendant challenges the "judge's refusal to recuse himself," the award of the equity in the marital home exclusively to plaintiff, the denial of discovery relating to the businesses and investment accounts of plaintiff's father (claimed to include assets of plaintiff), the lack of inclusion of plaintiff's business, Fuji Novel Batteries, in equitable distribution, and the decision to exclude testimony of the parties' twenty-four-year-old adult daughter. We reverse and remand for a new trial because the trial judge should have recused himself.
Upon his appointment to the bench in 1996, the trial judge placed his former partners, William T. Smith and A. Edward Hook, on his disqualification list. In 1997, the judge filed a complaint for dissolution of the partnership, and alleged, among other things, that Smith had made improper withdrawals from the firm's business account, improperly refused to disburse funds due the judge and breached the parties' "Good Will Purchase Agreement." The litigation was ultimately settled in 1998 following mediation.
The judge removed Smith and Hook from his recusal list on January 5, 2004, after almost eight years on the bench. The judge decided to take this action after Smith was substituted as counsel in an unrelated matter, Hilal v. Mulrenin, and indicated that he had no interest in seeking the judge's recusal.*fn1 Smith thereafter appeared before the judge "on several other occasions since that time."
In the spring of 2004, however, Smith filed a motion on behalf of the defendants in the matter of Mizrahi v. Cannon, seeking to have the judge recuse himself because of his prior litigation with Smith. In a May 17, 2004, decision denying the motion, the judge reviewed his relationship with Smith, and concluded that since Smith had begun appearing before him he had found no ill will, bias or prejudice. There is no animosity and no hard feeling. I have long since divorced myself from the partnership split up. I have found that the settlement was very satisfactory. In retrospect, I believe it was fair to both sides. There is no continuing business relationship. I was fortunately able to purchase the interest of Mr. Smith and Mr. Hook. The settlement seems to have worked well for both sides. All three of the former partners have continued to prosper. I harbor no ill feelings toward Mr. Smith.... Our prior relationship will not in any way affect my decision in this case or in any other case.
When I read the papers submitted in this case by Mr. Smith, my reaction was somewhat one of surprise. I frankly thought that Mr. Smith, in view of his comments on the record in the Hilal case, had also removed himself from the partnership litigation and split up. I note that Mr. Smith does not now allege any animosity or ill will toward me.... I have often advised litigants before me in contested cases where there is high conflict, that they must end their ill feelings and animosity and get on with the rest of their lives. From my viewpoint, that is exactly what happened here. The conflict has ended. It is finished. We have all gone on to prosper.
In reviewing the papers submitted on this motion and the documents in the file, and after a thorough introspective insight into my own mind, I can clearly state that I bear no ill will to either of the parties in this case or to Mr. Smith. There is no bias. There is no prejudice. I will act in good conscience and mature judgment to the best of my ability in hearing this case and in coming to a conclusion. I will continue to engage the attorneys in settlement conferences in order to encourage them to make a bona fide effort to bring about a fair settlement. I will not unduly coerce any party nor will I force them to settle this case.
As an additional reason for denying recusal in the Mizrahi case, the judge also noted that Smith had been substituted as counsel on the eve of trial, thereby raising the possibility that the motion was a "tactical move to force a recusal."*fn2
In the instant case, Smith was substituted as defendant's counsel on October 17, 2006, two months before the scheduled trial date. Prior thereto, the judge had criticized defendant for failing to answer discovery, and orders compelling her to provide discovery had been entered. After Smith entered the case, two management conferences were conducted before the recusal motion was filed. On November 2, 2006, a discovery order was entered in which the parties were each ordered to pay "$50,000 to a litigation fund to pay [court] appointed experts."
On November 27, 2006, the judge determined that defendant "has continued to violate discovery orders and requests of both experts and the court-appointed discovery facilitator." She was also found to have "failed to produce the [$]50,000 fund to pay experts as previously ordered [and] has refused to pay her own forensic expert." The judge concluded "[s]he has been stonewalling discovery for several months." As a result, the judge "suppressed" defendant's pleadings and precluded her from producing evidence at the trial, which the judge scheduled to commence only nine days later on December 6, 2006.
On December 5, 2006, the day before the scheduled trial, defendant filed a motion on short notice seeking the judge's recusal because of the poor relationship between Smith and the judge, which relationship, Smith certified, had "not ...