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Emolo v. McDaniel

July 29, 2009

JOHN C. EMOLO AND GAIL BRAUN EMOLO, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
HON. FREDERIC R. MCDANIEL, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS JUDGE OF THE SUPERIOR COURT; HON. STUART RABNER AND HON. DEBORAH PORITZ, BOTH INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES AS CHIEF JUSTICE OF THE SUPREME COURT OF NEW JERSEY, HON. PHILIP CARCHMAN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS ADMINISTRATIVE DIRECTOR OF THE COURTS OF THE STATE OF NEW JERSEY, TRACEY DEGROOT, RICHARD CACIOPPO, IRVING PALTROWITZ, M.D., DEFENDANTS, AND RONALD M. ABRAMSON, ESQ., JACK S. ZAKIM, ROBERT J. KLEEBLATT, ESQ., RICHARD P. GALLER, ESQ., IAN S. KLEEBLATT, ESQ., THOMAS MCCONNELL, ESQ., INDIVIDUALLY AND JOINTLY AND SEVERALLY AS MEMBERS OF KLEEBLATT, GALLER, ABRAMSON & ZAKIM, L.L.C. AND KLEEBLATT, GALLER & ABRAMSON, L.L.C., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3645-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: May 28, 2009

Before Judges Axelrad, Parrillo and Messano.

Plaintiffs John Emolo and his wife appeal from summary judgment dismissal of their complaint with prejudice alleging abuse of process stemming from post-divorce proceedings involving Emolo's former wife, defendant Tracey DeGroot. We affirm.

On January l7, 1996, Emolo and DeGroot were divorced and the parties' property settlement agreement (PSA) was incorporated as part of the final judgment of divorce (FJD). On or about September 21, 2004, DeGroot, represented by defendant Ronald Abramson of the firm defendant, Kleebatt, Galler, Abramson & Zakim, LLC (collectively Abramson), filed a post-judgment motion to modify the original alimony award, terminate her child support obligation and hold a plenary hearing on the issue of modification and counsel fees. Emolo filed a cross-motion. Judge Frederic McDaniel entered an order of November 5, 2004, which among other relief, directed a plenary hearing on whether there was a prima facie case of changed circumstances for alimony modification.

The plenary hearing commenced in July 2005 and continued into 2007. On February 26, 2007, Emolo filed a complaint in the United States District Court for the District of New Jersey, seeking to enjoin Judge McDaniel from continuing to preside over the plenary hearing and alleging violations of Emolo's civil rights and rights of due process and equal protection. According to the complaint, DeGroot and Abramson were committing a fraud on the court by, among other things, misrepresenting a medical disability DeGroot claimed rendered her unable to work and misleading the court concerning large sums of money DeGroot had received from two former paramours that the court would then use to calculate Emolo's modified alimony payments. Emolo also claimed that Judge McDaniel had failed to address the perjured, contradicted testimony of DeGroot and her witnesses, and violated Emolo's right of due process by barring him from cross-examining DeGroot's witness, Dr. Amy Green, on her alleged acts of insurance fraud, and by failing to rule on motions for relief during the proceeding. After several amendments, including adding Ronald Abramson as a defendant, the federal court dismissed Emolo's complaint on January 30, 2008,*fn1 and denied reconsideration on April 15, 2008.

The plenary hearing concluded in state court in April 2007. On April l0, 2008, Judge McDaniel issued a lengthy written opinion detailing the law on changed circumstances, anti-Lepis*fn2 clauses and cohabitation as these issues pertained to spousal support, summarizing the witnesses' testimony and making credibility assessments in favor of DeGroot. Pertinent to this appeal, the court concluded that sufficient evidence existed supporting DeGroot's inability to currently work and that she was not cohabiting with another or receiving money from others establishing sufficient income to support her. The court also expressly rejected Emolo's claims of fraud and criminal wrongdoing on the part of DeGroot, her witnesses and her counsel, stating:

While [Emolo] has consistently accused [DeGroot], her witnesses and her counsel of conspiring to commit fraud based upon their testimony, I find no proof that such fraud exists. [Emolo] made accusations frequently during the hearing in an effort to convince the Court that [DeGroot] and others were not credible. This included accusing [DeGroot] of perjury when she denied saying certain things to Dr. Peter Crain [the court-appointed psychiatrist].

[Emolo's] proposed "Statement of Facts" alleges that [DeGroot] "initiated this proceeding based upon . . . fraudulent claims. . . [.]" He asserts that [DeGroot's] claim that she is medically disabled and unable to work was manufactured . . . .

. . . He claims that Richard Cacioppo [DeGroot's alleged former boyfriend] committed fraud when he testified that he loaned [DeGroot] money and that certain contradictions in [DeGroot's] and Mr. Cacioppo's testimony, when compared to numerous prior certifications, prove such fraud. This Court finds nothing by way of [Emolo's] counsel's assertions and suggested examples to establish any fraud.

A great deal of [Emolo's] arguments in support of a finding that [DeGroot] and her witnesses were not credible, are overblown and melodramatic accusations without much substance. There are numerous examples of embellishment and mischaracterizations designed to paint a picture of [DeGroot], her psychiatrist, her friend and her lawyer as criminals. . . . [Emphasis added.]

In contrast, the court found that Emolo "engaged in a pattern of conduct against [DeGroot] which can be characterized as being in bad faith" and awarded DeGroot partial counsel fees. An order memorializing the court's decision was entered on June 27, 2008.*fn3

On May l4, 2008, Emolo and his current spouse filed the subject order to show cause and verified complaint in the Law Division, seeking preliminary injunctive relief barring Judge McDaniel from ...


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