July 22, 2009
CARMELA RANDAZZO, PLAINTIFF-RESPONDENT,
STEFANO RANDAZZO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-1709-07G.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 21, 2009
Before Judges Winkelstein, Fuentes and Chambers.
Defendant Stefano Randazzo appeals from the order of the Family Part suppressing his responsive pleading, entering default against him, and as a consequence, limiting his participation in the case to the hearing conducted to determine plaintiff's equitable distribution award. The court entered this order against defendant as a sanction based, in large part, on defendant's pattern of obstreperous conduct, culminating in his failure to appear at a court-ordered case management conference.
After carefully reviewing the record before us, and in light of the deference owed to Family Part judges in dealing with these contentious matrimonial matters, we affirm. We are satisfied that Judge Cassidy properly exercised her discretionary authority to prevent defendant from disrupting and delaying the trial proceedings, to the detriment of plaintiff and the children born of the marriage.
These are the salient facts. The parties were married in September 1993, and separated in April 2007, when the plaintiff obtained a temporary restraining order under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. The parties had four children during their fourteen-year marriage, three girls and one boy ranging in ages from thirteen to six years old. Plaintiff filed for divorce in April 2007, and obtained a final restraining order against defendant in May 2007, awarding her temporary custody of the children.
Although neither party has a great deal of formal education, defendant owns a successful carpet business and plaintiff is employed as a teacher's assistant by the Elizabeth Board of Education. Due to defendant's consistent failure to honor his discovery obligation, the record does not clearly reveal defendant's actual earnings. The court thus imputed income to defendant at $85,000 annually; plaintiff's salary is $30,000 per year.
From the commencement of this litigation, defendant consistently thwarted plaintiff's efforts to ascertain the value of his carpet business. As a result, plaintiff was forced to resort to motion practice and subpoenas to obtain the necessary financial records. Defendant was equally defiant of court orders awarding plaintiff and the children pendente lite relief. As a result, plaintiff was again forced to seek judicial intervention in the form of orders to show cause and motions to enforce litigant's right.
Although plaintiff prevailed in each of these efforts, this did not deter defendant from continuing to defy the orders of the court. The January 29, 2008, order finding defendant in violation of litigant's rights for his failure to pay pendente lite relief ordered on September 14, 2007, illustrates the point. Among the relief granted to plaintiff, the court ordered defendant to sell a warehouse property he jointly owned with his father-in-law, and turn over 50% of the net proceeds of the sale to plaintiff. The court authorized plaintiff to use these funds to pay off a $99,000 equity loan secured by a mortgage on the marital property. The remaining funds from the warehouse sale were to be held in trust pending the outcome of the case. The court also ordered defendant to sell three lots he owned in Old Bridge.
As a corollary to this action, plaintiff's father filed suit against defendant in connection with the warehouse property and the carpet business. Defendant and his father-in-law reached a stipulation of settlement in that case on February 5, 2008, requiring defendant to pay his father-in-law $110,000, thereby obtaining clear title to the warehouse. This payment was due within sixty days of the settlement date. Defendant agreed to assume this financial obligation at the same time he was failing to honor his court-ordered support obligations to plaintiff and the children.
Throughout this time, defendant had been represented by attorney Robert J. Jeney. In February 2008, attorney Ashton E. Thomas filed a notice of appearance and substitution of attorney on defendant's behalf. By this time, the case had gone through one year of intense motion practice and had been reviewed for possible resolution by the Early Settlement Program. R. 5:5-5.
On February 22, 2008, plaintiff received notice from the attorneys representing the home equity lender, indicating the commencement of a foreclosure action based on defendant's failure to pay court-ordered payments for the past eleven months. The foreclosing mortgagee agreed to reinstate the loan upon receipt of $42,789.23. A total of $110,000 was needed to pay off the entire loan.
Plaintiff petitioned the court to permit her father to buy defendant's interest in the warehouse, thereby making available to her the $110,000 necessary to pay off the home equity loan. By this time, defendant had failed to take any steps to sell the warehouse or the three lots in Old Bridge as ordered by the court on January 29, 2008. As a consequence, no funds were available to retain a forensic accountant to value defendant's business, frustrating yet another provision of the January 29, 2008 order.
On March 4, 2008, plaintiff filed another order to show cause seeking to compel defendant to sell the warehouse to her father for $330,000, and crediting $110,000 to her father as per the stipulation of settlement he reached with defendant. On March 14, 2008, Judge Cassidy granted plaintiff's request for relief, finding defendant "in violation of litigant's rights for failing to list the warehouse for sale and failing to list the Old Bridge properties for sale."
The court also directed that the $220,000 balance from the sale of the warehouse property be held in trust, and thereafter be utilized to pay off the equity loan on the marital property; the remaining balance was to be held in the trust account of plaintiff's counsel until further order of the court. The court also granted plaintiff's application for $930 in counsel fees incurred in the prosecution of the order to show cause.
Judge Cassidy handwrote the following notation at the end of the form of order: "No responsive papers were filed. The Court received correspondence concerning a new attorney, and attempted to facilitate a conference call, but counsel were unable to participate in a call. No substitution of attorney was filed. Trial remains on for April 29, 30, 2008."
The court scheduled a settlement conference on April 10, 2008. All counsel and parties were notified that attendance was mandatory. Plaintiff and her counsel appeared. Defendant and his counsel of record did not. As a consequence, Judge Cassidy issued the following order:
Mr. Thomas remains counsel of record. He did not appear and Mr. Randazzo did not appear. Therefore Mr. Randazzo's Answer is suppressed and a default is entered on behalf of the plaintiff.
[Plaintiff's counsel] shall file and serve a Notice of Equitable distribution [sic] on Mr. Thomas and also attempt to serve it on Mr. Randazzo directly by Monday April 14, 2008.
The matter remains listed for 4/29/08.
At that time a default hearing will be conducted pursuant to this notice of equitable distribution. [Plaintiff's counsel] shall provide proof of service of notice of equitable distribution prior to hearing.
Neither defendant nor his counsel had any contact with the court until April 23, 2008, when attorney Bart W. Lombardo filed an appearance on defendant's behalf and a substitution of attorney signed by Mr. Thomas. Mr. Lombardo also filed a motion to vacate the default. In support of this application, Mr. Lombardo argued that defendant had been "in between [two] lawyers," meaning the attorney who represented him in the warehouse suit with his father-in-law, and the attorney in this matrimonial case. According to defendant, neither one of these attorneys "proceeded to pick up the ball and represent him."
In response, Judge Cassidy emphasized that defendant had been apprised of all of the procedural events in this case, both through counsel of record, and directly. Prior counsel had filed formal responses on defendant's behalf to plaintiff's various enforcement motions. After chronicling defendant's protracted history of defiance of court-ordered relief, Judge Cassidy denied the motion to vacate the default. The court noted, however, that defendant, through his current counsel, was free to participate at the equitable distribution hearing, in which plaintiff carried the burden of proof. R. 5:5-10.
Against this backdrop, we will now address the issue at hand. It is well-settled that Family Part judges have special expertise in dealing with family-type matters. O'Donnell v. Singleton, 384 N.J. Super. 141, 144 (App. Div. 2006). We are most mindful of this special expertise when we review a Family Part judge's exercise of discretionary authority in managing contentious matrimonial cases. We are bound to uphold a Family Part judge's exercise of this discretionary authority absent evidence that it was so wide of the mark that it resulted in an unfair, capricious or arbitrary disposition of the case. Ibid.
Here, the record shows that defendant consistently refused to abide by repeated court orders providing temporary monetary relief to plaintiff and the children. As a direct consequence of defendant's untenable defiance, the marital residence was placed in danger of foreclosure requiring plaintiff to seek emergent relief. The record also shows that defendant switched counsel during critical phases of this case, thus exacerbating the tumult he caused by consistently failing to comply with court-ordered relief. Under these circumstances, Judge Cassidy was entitled to conclude that defendant's actions were calculating and deliberate, intended to frustrate and delay the prosecution of this matrimonial action to the detriment of plaintiff and the children.
Against this record, Judge Cassidy's decision to deny defendant's eleventh-hour application to vacate default constituted a proper exercise of her discretionary authority, and will not be disturbed on appeal.
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