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Gail H. Slater v. Lance E. Slater


June 29, 2011


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-487-05.

Per curiam.


Submitted June 1, 2011

Before Judges Parrillo and Espinosa.

Defendant Lance Slater appeals from the June 21, 2010 order of the Family Part denying his application to hold plaintiff Gail Slater and her counsel in contempt of a prior court order of December 4, 2009 and for counsel fees. We affirm. The pertinent background to this matter is provided in our related opinion affirming the Family Part's March 30, 2010 denial of defendant's motion to reduce his alimony obligation to plaintiff in light of alleged changed circumstances in employment earnings. Slater v. Slater, No. A-3977-09 (App. Div. May 11, 2011). The filing of that motion in November 2009, in turn, gave rise to the December 4, 2009 order, which defendant claims plaintiff violated and, therefore, underlies this appeal.

Briefly stated, the parties were married on June 23, 1988, had two children, and were divorced by a supplemental final judgment of divorce (FJD) on July 11, 2008. As per the FJD, defendant was to pay plaintiff $10,833 in monthly alimony and $2,917 in monthly child support. In the original FJD of June 26, 2008, the court fixed defendant's income at $360,000 per year. At the time, defendant was employed by Wachovia Securities.

Claiming he was terminated from Wachovia when the company was taken over by Wells Fargo, and that his subsequent employment at UBS in March 2009 caused him to incur $625,000 in debt, defendant filed a motion to reduce his spousal support obligation in November 2009. On December 4, 2009, the Family Part judge entered an order requiring defendant to confirm his termination from Wachovia and further requiring counsel for both parties to submit a memorandum outlining their factual and legal positions with respect to the loan transaction between the Defendant and UBS and the issues on whether any accruals that he is credited with and/or receives represents income or his share of incremental value of equitable distribution that is award[ed] to him.

Following the parties' submissions and argument on March 30, 2010, the court denied defendant's motion for post-judgment modification of his alimony obligations, concluding that defendant did not make a prima facie case of changed circumstances. The court also granted plaintiff's motion to compel defendant to bring current all outstanding support arrears which totaled $95,476.58.*fn1 As noted, defendant appealed and we affirmed.

Subsequent to the March 30, 2010 order, defendant filed another motion, this time seeking to hold plaintiff and her counsel in contempt or to otherwise sanction them for failing to comply with the court's December 4, 2009 order. Specifically, defendant claimed plaintiff's submission failed to address the factual and legal ramifications of the underlying loan transaction with UBS or whether the accrual of the account in issue constituted income, but instead focused on the issue of defendant's change in employment. In this regard, defendant argued that by providing additional information that was beyond the scope of the order, plaintiff caused him to incur additional expense to respond. Defendant also sought counsel fees based on plaintiff's alleged contempt. Plaintiff cross-moved for, among other things, counsel fees.

Following argument, on June 4, 2010, the court entered an order denying defendant's request to hold plaintiff and her counsel in contempt. The court stated it did not believe that the Plaintiff exceeded the scope or the perview [sic] of the December 4, 2009 Order. The Court also addressed this issue during the March 30, 2010 hearing. Furthermore, neither party was prejudiced by any additional pleadings submitted and each party had an ample opportunity to respond to said pleadings.*fn2

In support of his claim on appeal that the court erred in refusing to hold plaintiff and her counsel in contempt, defendant cites to Rule 4:23-2, which relates to sanctions for failure to comply with discovery orders, and N.J.S.A. 2A:10-1, which provides the statutory authorization for the court to punish for contempt. However, neither provision applies to this case.

Rule 4:23-2 authorizes the court to impose sanctions on a party for failure to comply with a discovery order. A trial judge has broad discretion to formulate sanctions under this rule so long as they are "just and reasonable." Conrad v. Robbi, 341 N.J. Super. 424, 441 (App. Div.), certif. denied, 170 N.J. 210 (2001). Appellate courts serve a limited function in reviewing the imposition of sanctions on parties for discovery violations and should only interfere where the trial court has abused its discretion. Abtrax Pharms, Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995); see also Cavallaro v. Jamco Prop. Mgmt., 334 N.J. Super. 557, 571 (App. Div. 2000). Where the "record contains adequate, substantial, and credible evidence . . . to sustain the trial court's factual findings," this court should not disturb the trial court's decision.

Abtrax Pharms., supra, 139 N.J. at 520 (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).

We discern no violation of the December 4, 2009 order for which sanctions could properly be imposed. In the first instance, the December 4, 2009 order is not a discovery order as it relates to plaintiff but simply a request for her to submit additional factual and legal submissions. More significant, plaintiff did not violate the court order. Plaintiff's January 8, 2010 response did comply with the court's mandate in paragraph two of the order to outline the legal and factual positions on the so-called loan from UBS to defendant and whether any accruals accredited to defendant count as income. Nor did plaintiff violate the first paragraph of the December 4, 2009 order, which required:

1. The Defendant shall submit to the Court and the attorney for the Plaintiff a copy and any attachment to the letter of March 25, 2009 which purports to be the confirmation of the termination notice of the Defendant. In addition, the Defendant will supply to the Court and Plaintiff's attorney with any documentation and/or a certified statement from an official of Wells Fargo relating to any potential employment status that the Defendant may have been able to secure with Wells Fargo.

Although this requirement was directed towards defendant, plaintiff also offered her position with regard to this issue and included three exhibits in response to defendant's change in employment. After all, the issue of defendant's severance from Wachovia was critical to the outcome of the relief he was seeking - a reduction in his alimony obligation. The information provided by plaintiff was clearly relevant to an informed resolution of the issue presented by defendant himself. Moreover, defendant was given a full opportunity to respond to plaintiff's challenged submissions. When he voiced an objection at the February 5, 2010 motion hearing, the matter was adjourned so that defendant may "submit further pleadings . . . ."

Defendant availed himself of this opportunity and submitted additional materials. As the court noted, neither party was "prejudiced by any additional pleadings submitted and each party had an ample opportunity to respond to said pleadings." The court ultimately found:

The Court would first note that this is not the first time this matter has been brought before the Court. It's been addressed in a number of prior applications as well. The Court already placed reasons on the record in past matters as to why it does not believe that these submissions that were submitted on behalf of the plaintiff exceeded the scope of the December 4, 2009, order.

. . . [Defendant's counsel] argues that there was exceeding of the scope of the purpose and intent of the order with respect to paragraph one of the December 4 order and this, this said very simply that the Court wanted a copy of any attachment to the letter of March 25, 2009, and to supply to the Court and plaintiff's attorney with any documentation and a certified statement from an official of Wells Fargo relating to any potential employment status the defendant may have been able to secure at Wells Fargo.

A strict reading of that order would not have necessitated any certification from [defendant] with respect to a history and background of his employment relationships. If there was going to be strict compliance with that order, then all his response would have been is there is no attachment or here is the attachment and there's no certified statement I can get from Wells Fargo. [Defendant's] certification and [defendant's counsel's] submission along with that went into some detail relating to the employment circumstances that led him to the UBS situation.

Now did that exceed the scope of the order? That's a matter, what's called interpretation and the court allowed it because it felt it was a fair, a fair way of addressing what was a critical issue in this motion and that was the certification under which [defendant] was, quote, terminated, close quote, from his employment position.

This Court gave the opportunity to the defendant to explain that situation which[,] strictly construed[,] would not have been within the scope and purview of that order. The Court -- now while it was to be supplied to the plaintiff's attorney, the defendant is apparently suggesting that the plaintiff had no opportunity to respond to that. That would not be fair. The Court just simply gave the plaintiff the same even footing that it gave the defendant and all the plaintiff did was set forth [her] position with respect to what the defendant had asserted relating to his employment situation. That was clearly within the scope, the spirit, and intent of paragraph one, that employment being a critical issue in this matter.

A court order must be interpreted with the spirit and intent of that order what the Court was trying to accomplish. The Court allowed both parties to go into some detail with respect to the employment situation because again it was a critical issue.

We accord a high standard of deference to the trial court's ruling on sanctions. Abtrax Pharms., supra, 139 N.J. at 517. Here, the Family Part judge, who found no basis for imposition of sanctions on plaintiff, was uniquely situated to not only interpret, but also determine compliance with his own order. We, therefore, find no abuse of the court's broad discretion in enforcement of its order. Affirmed.

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