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Teresa Vande Creek v. John Vande Creek


April 12, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1817-10.

Per curiam.


Submitted: March 28, 2012

Before Judges Cuff and Lihotz.

Plaintiff Teresa Vande Creek and defendant John Vande Creek married on August 31, 1991. Plaintiff filed a complaint for divorce on June 11, 2010. Defendant appeals from the judgment of divorce entered following a trial at which neither he nor an attorney appeared. The judge did not permit a purported newly-retained attorney to cross-examine witnesses telephonically. Defendant contends the judge deprived him of his constitutional rights to due process of law and confrontation of witnesses. He also requests this court to review additional evidence relevant to his ability to pay the alimony and child support awards. We affirm.

Following entry of a pendente lite order requiring defendant to pay $10,000 monthly to cover the shelter and personal expenses for plaintiff and the two children born of the marriage, to maintain existing life insurance, and to restrain from disposing of marital assets,*fn1 defendant withdrew from participation in the marital litigation. Defendant unilaterally cancelled an April 13, 2001 economic mediation session without notice to his attorney, plaintiff, or the court. He consistently failed to return phone calls to his attorney, plaintiff, or the court. He failed to consult his attorney or appear at scheduled meetings and ignored legal advice. Defendant's attorney filed a motion to withdraw as counsel due to lack of cooperation and communication. This motion was denied but renewed on the trial date. At that time defendant did not appear, and the judge relieved counsel.

Trial commenced on June 27, 2011. After relieving defendant's counsel, the judge reported she had received that morning a telephone message and a letter from David Gott, who asserted he had been retained that day to represent defendant. The message demonstrated Gott knew that the trial was scheduled to commence that morning and he left several telephone numbers at which he could be reached. He did not explain why he would not appear that morning. The judge called each number to no avail. She left a message that the trial would proceed without him or defendant.

In the midst of plaintiff's direct testimony, Gott called the judge. He informed the judge that he had been retained by defendant that morning. The record suggests that Gott was unaware defendant had not appeared. Gott explained he did not appear in court because he had not been retained until that morning and he was in Florida.

He also requested to cross-examine plaintiff telephonically. The trial judge did not permit this course and rejected the contention that exigent circumstances required such action. When Gott suggested defendant might be insane, he readily admitted he had no evidence to support such an assertion. When Gott stated that he wanted to question plaintiff about unreported income from a software consulting job, he conceded he had no evidence to support such a claim. The trial continued without the presence or participation of defendant or his newly-retained attorney.*fn2

Judge Thornton issued an oral opinion on June 30, 2011. The judge awarded plaintiff sole custody of the two children. Finding that defendant earned $218,000 and plaintiff $63,000, the judge awarded plaintiff permanent alimony in the amount of $48,560 annually. She also awarded plaintiff child support in the amount of $406 weekly.

On appeal, defendant argues that the trial judge's refusal to permit defendant's newly-retained attorney to participate telephonically or to adjourn the trial denied his rights to due process and to confront witnesses. He also argues that this court should review financial documents never presented to the trial judge as evidence of defendant's true financial condition and ability to pay alimony and child support. Having reviewed this record in its entirety, we are satisfied that the arguments presented by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief comments.

Defendant's arguments ignore the considerable discretion bestowed on the trial judge to conduct a trial. R. 1:2-4. This discretion includes the disposition of adjournment applications, Allegro v. Afton Village Corp., 9 N.J. 156, 161 (1952); Fehnel v. Fehnel, 186 N.J. Super. 209, 214 (App. Div. 1982); and the manner in which a trial shall be conducted, Conrad v. Michelle & John, Inc., 394 N.J. Super. 1, 10 (App. Div. 2007). We will not disturb a decision to deny an adjournment or a request to examine a witness telephonically, unless we determine that the trial judge abused her discretion. Lynch v. Galler Seven-Up Pre-Mix Corp., 74 N.J. 146, 151-52 (1977). In this matter, we discern no mistaken exercise of discretion.

Defendant had notice of various pre-trial proceedings and elected not to participate. In fact, he unilaterally cancelled an economic mediation session. The record clearly demonstrates defendant had notice of the trial date. Gott, retained the morning the trial commenced, informed the trial judge he had met with defendant and knew the trial was expected to commence on June 27, 2011. Gott did not call the court until midway through plaintiff's testimony and then revealed he was in Florida. It is little wonder that the trial judge denied Gott's adjournment request. Moreover, the trial judge acted well within her discretion to deny Gott's participation by telephone. He admitted he had nothing to support defendant's principal contention that plaintiff had unreported income from another job.

Defendant's due process argument also fails. The representations of his newly-retained attorney establish that defendant knew the trial date and elected not to appear. Defendant had every right to attend the trial and participate in the trial and he was given that opportunity. He did not have the right to delay the proceedings by engaging counsel, who lived out-of-state, on the very morning the trial was scheduled to commence, and no right to expect that the proceedings would be adjourned to suit his needs or convenience.

This court will also not consider documents or issues never considered by the trial court. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Moreover, defendant's attempt to alter the findings of fact and conclusions of law of the trial judge are barred because he failed to file a motion for a new trial pursuant to Rule 4:50. This court will not consider an argument that the judgment entered following trial is not supported by the evidence unless a motion for a new trial has been filed. R. 2:10-1.*fn3


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