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Gary Resman v. Nancy Resman

December 7, 2010


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-129-03.

Per curiam.


Submitted November 9, 2010

Before Judges Payne, Baxter and Koblitz.

Plaintiff appeals the denial of two post-judgment matrimonial motions on the sole basis that the Family Part presiding judge who had handled other post-judgment motions in the past erred in reassigning these motions to herself, taking them from another judge, contrary to Rules 4:5A-1 and 4:5A-2, which govern track assignments of civil cases. After considering his arguments in light of the appropriate Rules, we affirm.

Plaintiff Gary Resman and defendant Nancy Resman were married on November 17, 1984, and had two sons together, who are now in their early twenties. They were divorced in 2003 pursuant to a final judgment of divorce that incorporated their Property Settlement Agreement, which "was entered into freely, fully and voluntarily by the parties."

Plaintiff and defendant engaged in considerable post-judgment litigation. Judge Langan handled the first post-judgment motion, but as he was reassigned to another division, Presiding Family Part Judge Mizdol took over the litigation in 2008. The parties ultimately entered into consent orders resolving the pending motions. Judge Mizdol denied a third motion made by plaintiff to vacate the consent orders and adjudicated plaintiff in violation of litigant's rights for his violation of those orders on January 23, 2009, after she conducted a hearing. At that time, defendant also made a cross-motion requesting counsel fees. Judge Mizdol did not award the counsel fees requested by defendant, but warned plaintiff that if he made any further applications that she found frivolous, she would not hesitate to do so. Further, Judge Mizdol found that there was not "a scintilla of demonstration of fraud, or any other compelling circumstance to render the consent orders . . . unenforceable."

On August 17, 2009, plaintiff filed another motion, seeking modification and elimination of various provisions of the consent orders. Defendant filed a cross-motion seeking counsel fees. These motions were initially assigned by the clerk's office to Judge DeLorenzo. Judge Mizdol, however, was extensively involved and familiar with the parties' circumstances. Accordingly, at the request of defense counsel, and over plaintiff's objection, she handled the motions instead of Judge DeLorenzo. Judge Mizdol responded to plaintiff's objection by explaining,

I'll make the record clear for you. It was assigned to another judge and it was returned to me based upon the fact that I had all the experience and history with this matter. And that is the general policy and procedure here in Bergen County, that if a judge is familiar with the file and it is of such magnitude that it would work a[n] inconvenience to another judge[, t]hat the judge who originally handled it will continue to handle it for the sake of judicial economy.

So I will continue to handle this matter into the future, Mr. Resman.

Judge Mizdol entered an order on November 20, 2009, denying plaintiff's motion, awarding defendant counsel fees in the amount of $3500 and ordering American General Life Insurance Company to transfer ownership of a policy from plaintiff to defendant pursuant to the July 18, 2008, consent order. Plaintiff requested a stay of this order, which Judge Mizdol denied in a December 11, 2009, order.

Plaintiff appeals these two orders arguing that Judge Mizdol violated the Rules by handling these motions herself. Plaintiff cites specifically to Rules 4:5A-1 and 4:5A-2. Both of those Rules apply to pre-judgment track assignments of civil cases. The comparable Rule for Family Part pre-judgment case assignments is Rule 5:1-4. Post-judgment Family Part motions are not assigned to a track and thus none of these Rules are applicable in this situation.

A litigant who has been unsuccessful before a particular judge may welcome the opportunity to obtain a fresh start with a new judge. Sound judicial policy, however, supports, wherever practicable, one judge in the Family Part hearing motions in the same matter where he or she has presided over other contested phases of the case. Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 5:5-4 (2011). See O'Brien v. O'Brien, 259 N.J. Super. 402, 406 (App. Div. 1992) (holding that a motion for reconsideration of an order denying a motion for a reduction of child support should be heard by the same judge who heard the original motion); see also Feldman v. Feldman, 378 N.J. Super. 83, 100 (App. Div. 2005); Salch v. Salch, 240 N.J. Super. 441 (App. Div. 1990). In holding that a motion for reconsideration is to be heard by the judge who heard the original motion, we explained that requiring "all subsequent motions [to] 'be heard by the same judge who heard the first motion in the cause' . . . is a matter of common sense . . . ." O'Brien, supra, 259 N.J. Super. at 406 (quoting Pressler, Current N.J. Court Rules, comment on R. 1:6-2 (1993)). "The reason for this is that the outcome of the motion will depend in great measure on what the judge has seen and heard, the feel of the case." Salch, supra, 240 N.J. Super. at 444. We have held that mandating reassignment of future proceedings to another judge where the first judge is ...

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