On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1910-03.
The opinion of the court was delivered by: R. B. Coleman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Sabatino.
The sole issue raised by defendant Louis Haddad in this appeal is whether the denial of his motion for a change of venue from Monmouth County to Ocean County and the denial of his motion to recuse Judge Terrence P. Flynn constituted reversible error. We hold it did not. Accordingly, we affirm the June 30, 2008 order from which defendant appeals, for substantially the reasons expressed in the concise written statement of reasons issued by Judge Honora O'Brien Kilgallen to the June 30, 2008 order.
Defendant and his ex-wife, plaintiff Elizabeth Haddad (now known as Elizabeth Balfour), were parties to what defendant describes in his appellate brief as a "highly contested divorce action involving [c]ause of [a]ction, [c]ustody, [r]elocation, [p]arenting [t]ime, [a]limony, [c]hild [s]upport, [e]quitable [d]istribution and [c]counsel [f]ees[.]" The complaint for divorce was filed by plaintiff on June 9, 2003. The matter was tried to completion during the summer of 2006, and the Final Judgment of Divorce (JOD) was entered on December 20, 2006. Defendant appealed from the JOD and the judgment was affirmed. Haddad v. Haddad, No. A-2805-06T3 (App. Div. April 11, 2008) (slip op.). In the meantime, disputes between the couple continued and were the subject of motions and cross-motions, certain of which resulted in a September 7, 2007 order, which was also appealed by defendant. We affirmed that order except with respect to compensatory parenting time with defendant's children as to which we remanded for further proceedings. See Haddad v. Haddad, No. A-0674-07T3 (App. Div. August 19, 2008) (slip op. at 8-9).
In the interim, on or about November 26, 2007, defendant filed an action in the United States District Court for the District of New Jersey in which he asserted that the defendants named in that action, including Judge Flynn who had presided over the divorce trial and the motion that had been appealed by defendant, had committed civil rights violations against him. In addition to his having filed that action in the United States District Court, defendant filed a motion in the Chancery Division, Monmouth County, for a change of venue. In his certification in support of the motion, defendant asserted that "as the Federal action involves a sitting Superior Court Judge in Monmouth County [Judge Flynn], and numerous other defendants including Monmouth County Municipal Divisions, etc., it is doubtful that the defendant herein can receive an impartial hearing on any further proceedings."
Plaintiff opposed the motion and filed a cross-motion for relief in aid of litigant's rights. She pointed out in her certification that Judge Flynn was not going to hear the motion to change venue, and she offered that "there is nothing that would prevent another judge from Monmouth County to hear the matter." She also asserted her belief that "my husband has filed a frivolous lawsuit for the purpose of attempting to disqualify a very competent judge and to continue to harass me through the court system."
The motion and cross-motion were considered by Judge Kilgallen, without oral argument. Judge Kilgallen denied defendant's request to change venue and directed that defendant's motion for recusal be decided by Judge Flynn. Judge Kilgallen gave a written statement of reasons for the order, in which the judge recognized that "pursuant to [Rule] 4:3-3(a)(2), the [c]court can [o]rder a change [of] venue 'if there is substantial doubt that a fair and impartial trial can be had in the county where venue is laid.'" The judge appropriately noted that such a "determination is left to the sound discretion of the court." (Citing State v. Ravenell, 43 N.J. 171 (1964)). Pertinent to the exercise of such discretion, the judge wrote:
In Monmouth County, there are nine Judges assigned to the Family Division. If Judge Flynn decides that he should recuse himself from hearing this case, there are eight other Judges who could take over hearing post judgment motions regarding this case.
Judge Flynn is not the first, and will not be the last, Judge of the Superior Court who is sued by a litigant. Thus, there is no reason to believe that Defendant would not receive "a fair and impartial" hearing in Monmouth County.
Based upon our independent review of the certifications submitted in the matter, including both parties' certifications and defendant's complaint in the federal civil rights action, we perceive no basis to disturb the judge's exercise of discretion in denying the request for a change of venue.
Judge Kilgallen also recognized that Rule 1:12 governs disqualification and disability of judges where the bases set forth in that rule are established. Among other reasons, a judge of any court shall be disqualified on the court's own motion and shall not sit in any matter if the judge: is related by blood or marriage to one of the litigants or to any attorney in the action; "has been an attorney of record or counsel in the action;... has given an opinion upon a matter in question in the action; or... is interested in the event of the action[.]" More pertinent to the present appeal, Rule 1:12 provides in subparagraph (f) that the judge shall be disqualified "when there is any other reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so." The responsibility to determine whether any particular judge should be disqualified rests with that particular judge. See, e.g., State v. Ramseur, 106 N.J. 123, 238, n. 51 (1987), (noting that "[e]ach member of the New Jersey judiciary is accountable to no person but only to the law and to his or her oath"). As the Court in Ramseur further observed "[t]he responsibility lodged in assignment judges over court administration matters is hardly of such a nature as to render other judges in the county incompetent to rule on the propriety of their actions[.]" Ibid. In short, the disposition of a motion for disqualification is entrusted to the "'sound discretion' of the trial judge whose recusal is sought." Chandok v. ...