On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-993-06D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Waugh and Ashrafi.
Plaintiff Raymond Franza appeals from a judgment of divorce (JOD) based on the counterclaim of his wife, defendant Meredith Saxon-Kowalsky. The JOD was entered by the Family Part after Franza's complaint and his answer to the counterclaim had been stricken due to discovery violations. The trial judge held a proof hearing, pursuant to Rule 4:43-2(b) and Rule 5:1-1, at which Saxon-Kowalsky testified and was subject to cross-examination by Franza. We affirm as to all issues except: (1) counsel fees, as to which we remand; and (2) the transfer of the case to Connecticut, which we vacate. However, we affirm the implicit ceding of primary jurisdiction to Connecticut with respect to future child support and child custody proceedings to the extent Connecticut has jurisdiction over Franza.
We glean the following facts from the testimony given at the proof hearing. The parties were married in June 2001. They have two sons: the first born January 1, 2003; and the second born October 16, 2004.
In late 2005, Franza made several large withdrawals from the parties' joint checking account. He filed a complaint for divorce on January 12, 2006. On February 27, 2006, Saxon-Kowalsky filed an answer and counterclaim for divorce. Franza subsequently filed an answer to the counterclaim.
On January 19, 2006, Saxon-Kowalsky was leaving the marital residence with the two children when Franza "grabbed [her] by the neck and told [her] he was going to kill [her]." Franza's father, who was also present, "motion[ed] that he was going to kill [Saxon-Kowalsky] and slice [her] father's throat." Saxon-Kowalsky and her father were able to get to her car with the children. Franza followed after them, kicking the car and spitting at Saxon-Kowalsky and her father.
In an order in the matrimonial action dated January 26, 2006, the parties consented to joint legal custody of their children, with Saxon-Kowalsky having temporary residential custody. Franza was to have parenting time on alternating weekends, with Saxon-Kowalsky dropping the children off at the marital home, where Franza was residing until it was sold.
Saxon-Kowalsky filed a complaint on February 28, 2006, seeking a domestic violence restraining order against Franza, apparently based on the events of January 19, 2006. See N.J.S.A. 2C:25-17 to -35. On March 10, 2006, a final restraining order was entered against Franza. That order provided for Franza's parenting time to be supervised at the Monmouth County Courthouse, with daily telephone contact.
On May 16, 2006, Saxon-Kowalski filed a petition for bankruptcy protection under 11 U.S.C.A. §§ 701-784. In the petition, she listed total assets in the amount of $945,270 (primarily the marital home) and total liabilities of $955,896.91 (primarily the mortgage on the martial home). It appears from the petition that the marital home was titled solely in Saxon-Kowalsky's name.
On May 24, 2006, the trial judge issued a case management order concerning the parties' discovery obligations. Franza was ordered to answer all interrogatories and to comply with a notice to produce by June 30, 2006.
The trial judge issued an order for pendente lite relief on June 9, 2006, in response to a motion filed by Saxon-Kowalsky. In the order, the trial judge denied several of Saxon-Kowalsky's requests, including a request that the court draw a negative inference from Franza's failure to provide his income for 2005 in his case information statement and to require Franza to keep his life insurance policy in place, with Saxon-Kowalsky named as beneficiary. The order also deferred Saxon-Kowalsky's request for counsel fees and for Franza to be required to pay damages for certain property taken by him from the marital home. Franza was ordered to pay unallocated support in the amount of $2,750 per month. He was also enjoined from interfering with the sale of the marital home by the trustee in Saxon-Kowalsky's bankruptcy, provided that she delivered a copy of her bankruptcy petition to Franza by June 16, 2006.
On October 23, 2006, the trial judge entered a case management order, providing, in part:
1. Plaintiff shall provide more specific Answers to Interrogatories as requested in correspondence dated September 7, 2006, on or before Nov[ember] 16, 2006.
2. Plaintiff shall provide a response to the Notice to Produce that was originally due on May 5, 2006, and June 30, 2006 on or before Nov[ember] 16, 2006.
On December 7, 2006, Saxon-Kowalsky moved for dismissal of Franza's pleadings for failure to provide a response to the notice to produce. In the alternative, she requested that Franza be ordered to comply with the notice to produce, listing a number of other outstanding discovery requests.
On January 26, 2007, in response to Saxon-Kowalsky's motion, the trial judge ordered:
1. That if the parties cannot agree on a joint custody evaluator, the attorneys for the parties shall submit three names of acceptable custody evaluators to the Court within fifteen (15) days and the Court will appoint an evaluator off of the submitted list; and
2. That the Plaintiff shall pay all costs related to the custody evaluation, without prejudice and subject to allocation at final hearing; and
3. That the Plaintiff shall provide all requested discovery within thirty (30) days, or in the alternative submit a certification that the requested items do not exist; and
4. That in the event the Plaintiff fails to provide a response to the Notice to Produce within thirty (30) days, the Court will consider the imposition of appropriate sanctions; and
5. That the Defendant's request of the Court to dismiss the Plaintiff's pleadings for failure to provide a response to the Notice to Produce in accordance with R. 4:23-5(a)(1) is DENIED without prejudice; and
6. That the Plaintiff shall appear for a deposition on a date before February 26, 2007, which date should be agreed on by the parties within seven (7) days . . . . [(Emphasis in original).]
Thereafter, Franza filed a motion seeking to lower his support obligation. In response, Saxon-Kowalsky filed a motion requesting enforcement of litigant's rights. Her motion sought, among other things: (1) denial of Franza's application to lower his support obligation; (2) a bench warrant for Franza's arrest for failure to pay his pendente lite support obligations; (3) payment of all support arrears; (4) a written response to a prior discovery request along with all requested documents; and (5) for Franza's complaint to be stricken for failure to comply with discovery requests.
The trial judge issued her order on June 8, 2007, denying Franza's request to lower his support obligation, but providing that there would be no enforcement of the full amount if Franza paid a minimum of $1,500 in support per month. The order also provided for Franza to have parenting time on alternating weekends, with drop off and pick up to take place at the police station in Danbury, Connecticut. Saxon-Kowalsky had resided in Connecticut since shortly after the parties separated. The trial judge once again ordered Franza to comply with the outstanding discovery requests.
In August 2007, Saxon-Kowalsky filed a second motion to enforce litigant's rights. The motion sought relief similar to that sought in April. On October 5, 2007, the trial judge again ordered Franza to pay the minimum $1,500 per month in support payments and authorized wage garnishment to satisfy this obligation. She ordered Franza to sign authorizations allowing Saxon-Kowalsky to obtain information regarding life and health insurance directly from the insurance companies. Finally, the trial judge warned that Franza's pleadings "may be stricken and [Saxon-Kowalsky] may proceed by default," if Franza was not forthcoming with information concerning his insurance polices or failed to comply with all outstanding discovery requests.
In November 2007, Saxon-Kowalsky sought relief in a third motion to enforce litigant's rights. She sought a determination that Franza was in violation of the October 5, 2007, order requiring him to sign authorizations regarding two insurance policies and to comply with discovery orders. She also requested the trial judge to strike his pleadings.
On December 20, 2007, the trial judge entered an order providing:
1. That the Plaintiff is in violation of litigant's rights for failing to pay support and to provide discovery pursuant to prior Orders of the Court . . . .
3. That if the Plaintiff fails to retain an attorney and to substantially comply with the Defendant's discovery requests, including the execution of all requested authorizations, the Defendant shall be permitted to proceed by default at the next scheduled Court proceeding on January 29, 2008 . . . .
On January 4, 2008, Saxon-Kowalsky served a notice of equitable distribution, stating her intention to proceed with the default proceeding on January 29, 2008, if Franza failed to comply with the December 20, 2007, order.
On January 29, 2008, Franza appeared without counsel, asserting that he was not well and had been unable to obtain counsel through "legal aid." He presented two generalized reports from his doctor, acknowledging that Franza suffered from high blood pressure, a tear in his left rotator cup, and herniated cervical and lumbar discs. They did not address the issue of whether he was medically able to participate in a trial. The trial judge found that Franza's medical condition did not prevent him from proceeding "in an intelligent and articulate fashion." Later in the proceedings, Franza asserted that he had not only been in a car accident, but he had also suffered a stroke. The trial judge found "absolutely no evidence of a stroke."
Addressing Franza's claim that "legal aid" had denied his request for assistance, the trial judge stated, "obviously, they would not take your case," suggesting her agreement with Saxon-Kowalsky's argument that Franza was more than capable of paying for legal services. Relying on Franza's prior history of disregarding orders requiring him to provide discovery and the warning in her December 20, 2007, order, the trial judge determined that the case would "proceed by default." However, the trial judge allowed Franza "to give some of his input on certain issues" and "to ask questions on cross examination." Although Franza was never called to testify, he was placed under oath at the beginning of the proceeding and allowed to offer factual statements from time to time.
The trial judge took testimony from Saxon-Kowalsky separately with respect to the following issues: the cause of action for divorce, support, child custody, and her request that jurisdiction be transferred to the State of Connecticut. At the time of trial, neither party lived in New Jersey. Saxon-Kowalsky lived in Connecticut with the children and Franza lived on Staten Island. The cause of action is not in dispute on this appeal.
With respect to custody, there appeared to be a presumption that Saxon-Kowalsky would be the custodial parent and the testimony focused on the issue of Franza's parenting time. Saxon-Kowalsky testified that Franza sometimes failed to pick up the children for his parenting time or canceled while she was already in transit to the transfer location in Danbury. She asked that the transfer take place in West Hartford, which is closer to her residence than Danbury. She also testified that Franza rarely took advantage of his daily, hour-long telephone time with his children. Franza disputed Saxon-Kowalsky's factual assertions, and strongly opposed the change in the transfer point.
Saxon-Kowalsky also testified about the marital lifestyle. She reported that Franza was the primary provider for the family making a living as, among other things, an actor, an executive for his father's company, and a loan officer. She stated that they had enjoyed an ...