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William F. Kaetz v. Bonnie J. Mizdol

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 20, 2011

WILLIAM F. KAETZ, PLAINTIFF-APPELLANT,
v.
BONNIE J. MIZDOL, PRESIDING JUDGE FAMILY DIVISION, SUPERIOR COURT OF BERGEN, STATE OF NEW JERSEY; JENNIFER CRISO, LAW CLERK FOR BONNIE J. MIZDOL, PRESIDING JUDGE FAMILY DIVISION; ROBERT JENSEN, EMPLOYEE OF THE FAMILY DIVISION, SUPERIOR COURT OF BERGEN, STATE OF NEW JERSEY; MITCHELL I. STEINHART, ATTORNEY FOR THE BERGEN COUNTY BOARD OF SOCIAL SERVICES, B.C.B.S.S. 216 RTE. 17 N., ROCHELLE PARK, NJ, 07662; CLARIZA COLON, BERGEN COUNTY PROBATION DEPARTMENT, CHILD SUPPORT ENFORCEMENT DIVISION; LAUREN SCHLOSSARECK, BERGEN COUNTY PROBATION DEPARTMENT, CHILD SUPPORT ENFORCEMENT DIVISION, DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3709-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 9, 2011

Before Judges Yannotti and Kennedy.

Plaintiff William F. Kaetz appeals from an order entered by the Law Division on September 16, 2010, dismissing his complaint against defendants Judge Bonnie J. Mizdol, Jenifer Criso (Criso), Robert Jensen (Jensen), Clariza Colon (Colon), and Lauren Schlossareck (Schlossareck). We affirm.

On June 24, 2009, a Pennsylvania court issued an order requiring plaintiff to pay child support in the amount of $614.13 per month, plus $52 per month for arrears. On January 12, 2010, Bonnie J. Mizdol, Presiding Judge of the Family Part in the Bergen County Vicinage, entered an order registering the Pennsylvania order in New Jersey for enforcement purposes only, and setting arrears in the amount of $6,496.54, as of August 19, 2009.

On July 13, 2010, plaintiff filed pro se complaint in the Law Division, Bergen County, asserting claims under 42 U.S.C.A. § 1983 against Judge Mizdol; Criso, who was Judge Mizdol's law clerk; as well as Jensen, Colon, and Schlossareck, who are employees of the court in the Bergen County Vicinage (collectively, the Judiciary Defendants). Plaintiff also named Mitchell Steinhart (Steinhart), attorney for the Bergen County Board of Social Services, as a defendant.

In his complaint, plaintiff alleged that defendants violated his federal constitutional rights. He claimed that he had been "railroaded into the New Jersey Child Support System with all the ramifications that include but are not limited to, threats and harassment using the U.S. mail."

The Chief Justice transferred the matter to the Passaic County Vicinage. Plaintiff thereafter filed a motion in the trial court to return the matter to the Bergen County Vicinage. Plaintiff's motion was denied.

On August 17, 2010, the Judiciary Defendants filed a motion to dismiss the claims against them. These defendants argued that they were immune from liability for the actions that formed the basis of plaintiff's complaint. The motion was returnable at 9:00 a.m. on September 16, 2010, or as soon thereafter as counsel could be heard. On September 15, 2010, plaintiff was informed that oral argument on the Judiciary Defendants' motion would be held at 9:30 a.m. the following day.

The trial court considered the motion on the return date. The court noted that the motion was scheduled to be heard at 9:30 a.m. and plaintiff had not appeared at that time. The court stated that it waited "an additional period of time" because of traffic in the vicinity of the court house.

The court decided to proceed without plaintiff. The court determined that the Judiciary Defendants' motion should be granted because they were entitled to immunity. The court entered an order dated September 16, 2010, granting the Judiciary Defendants' motion to dismiss.

On October 5, 2010, plaintiff filed a motion for reconsideration. He argued, among other things, that the New Jersey court lacked jurisdiction to enforce the "alleged" outof-state child support order. Plaintiff claimed that the State Defendants had acted "in complete absence of . . . jurisdiction[,] thereby denying plaintiff of certain "rights."

Plaintiff filed a notice of appeal with this court on November 30, 2010. However, the trial court proceedings in the case had not been completed when that notice of appeal was filed. Plaintiff's motion for reconsideration was still pending in the trial court and plaintiff's claims against Steinhart had not been resolved.

Thus, when the notice of appeal was filed, no final, applicable judgment had been entered in the case. See R. 2:2-3(a)(1) (appeals may only be taken from final judgments of the Superior Court's trial divisions); see also N.J. Schs. Constr. Corp. v. Lopez, 412 N.J. Super. 298, 308 (App. Div. 2010) (noting that a judgment is not final until the trial court resolves all issues as to all parties).

On December 21, 2010, Steinhart filed a motion to dismiss the claims against him. On December 29, 2010, plaintiff filed an amended notice of appeal with this court, apparently to address certain deficiencies in the earlier-filed notice of appeal. The amended notice of appeal stated that plaintiff was appealing from the trial court's September 16, 2010 order.

The trial court considered Steinhart's motion and plaintiff's motion for reconsideration on January 7, 2011. The court granted Steinhart's motion and denied plaintiff's motion. Plaintiff did not file an amended notice of appeal thereafter, and never indicated that he was challenging the denial of his motion for reconsideration or the grant of Steinhart's motion to dismiss.

On appeal, plaintiff argues that the trial court erred by failing to properly and timely inform him of the time for the argument on the Judiciary Defendants' motion to dismiss.

Plaintiff contends that the court violated his right to due process by failing to afford him "an opportunity to be heard at a meaningful time and in a meaningful manner . . . ."

We are convinced that this argument is entirely without merit. In a letter to the court dated September 22, 2010, plaintiff conceded he had received a call on September 15, 2010, informing him that the argument on the motion was scheduled for 9:30 a.m. on September 16, 2010. Plaintiff said that the call was recorded on the answering machine in his "shop" but he did not hear the message until the evening of September 16, 2010.

The record shows, however, that the Judiciary Defendants' motion to dismiss was returnable at 9:00 a.m. on September 16, 2010, or as soon thereafter as counsel may be heard. Plaintiff should have been in court at the time specified in the notice of motion, in the absence of notice from the court that he should appear later. Moreover, the trial court deferred considering the motion for a period of time in view of traffic congestion in the area, but reasonably determined to proceed in plaintiff's absence when he failed to appear.

We are satisfied that the court did not abuse its discretion in doing so. We note that, in ruling on the motion of the Judiciary Defendants, the court pointed out that plaintiff had opposed the motion but had not directly addressed the argument in the motion, which was that the Judiciary Defendants were entitled to immunity in respect of the actions that formed the basis for plaintiff's complaint. Therefore, plaintiff was not prejudiced by the court's decision to proceed in his absence.

In his reply brief, plaintiff argues, among other things, that the Judiciary Defendants were not entitled to immunity in this case. We have carefully considered these arguments. We are satisfied that plaintiff's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

20111220

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