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Deborah A. Burns v. Patrick J. Burns Iii


April 27, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2367-09.

Per curiam.


Argued March 20, 2012 -

Before Judges Fisher and Maven.

Defendant appeals from the August 5, 2011 Family Part order (the August order) requiring him to procure medical and dental insurance through COBRA and pay the premiums from a certain trust account. Defendant asserts that the court erred as a matter of law by disregarding an order issued by another superior court judge and abused its discretion when rendering the order under review. These arguments have no merit. We affirm.

On August 19, 2010, Judge Barry A. Weisberg entered a Final Judgment of Divorce (FJD) ordering, among other things, that defendant maintain his work-related medical and dental insurance for the benefit of the parties' daughter. In an order dated March 3, 2011 (the March order), Judge Weisberg denied defendant's application for plaintiff to enroll the child in the NJ Family Care health insurance program. The judge also ordered that $30,000 from defendant's share of proceeds from the sale of the marital home be deposited into a trust account to fund defendant's outstanding financial obligations and any future alimony and child support shortfalls.

In accordance with Rule 5:7-5, the probation department notified defendant to appear at a hearing on May 5, 2011 to address his failure to provide health insurance. As a result thereof, a confirming order (the May order) incorporating the hearing officer's recommendation was signed by another Family Part judge and states in part, as follows:

Deft. present; he testifies that he is unemployed at the present time; he therefore does not have medical insurance available to him at this time; he is to provide same when medical insurance is available to him at a reasonable cost.

Plaintiff filed a motion before Judge Weisberg, seeking to compel defendant to provide health insurance as previously ordered. In August 2011, after oral argument, the court ordered defendant to provide the medical and dental insurance by enrolling the child under COBRA and directed the premiums to be paid out of the trust account that was established in the March order. This appeal follows.

On appeal, defendant raises the following arguments:




As a threshold matter, factual findings that undergird a trial court's judgment should not be disturbed unless "'they are so wholly insupportable as to result in a denial of justice,'" and must "be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). "[I]n reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the trial court's credibility determination[s] and the judge's 'feel of the case' based upon his or her opportunity to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (citing Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)), certif. denied, 190 N.J. 257 (2007). See also N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). The trial court's "'feel of the case' . . . can never be realized by a review of the cold record." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). We also recognize the special expertise of Family Part judges. Cesare, supra, 154 N.J. at 412-13.


Defendant claims that the May order suspending his obligation to provide health insurance established the "law of the case" and Judge Weisberg erred by later ordering different relief. We conclude that defendant's reliance on the law of the case doctrine is misplaced and the doctrine did not preclude the court from deciding the issues presented in the August 2011 hearing.

We begin with a review of the doctrine at the center of defendant's appeal. "The law of the case doctrine teaches us that a legal decision made in a particular matter 'should be respected by all other lower or equal courts during the pendency of that case.'" Lombardi v. Masso, 207 N.J. 517, 538 (2011) (quoting Lanzet v. Greenberg, 126 N.J. 168, 192 (1991)). "It is a non-binding rule intended to 'prevent relitigation of a previously resolved issue.'" Ibid. (quoting In re Estate of Stockdale, 196 N.J. 275, 311 (2008)). For a determination to constitute the law of the case, the issue must have been contested and decided. Reldan, supra, 100 N.J. at 204.

The issue in this case, defendant's obligation to provide health insurance, was contested and decided during the divorce trial. The FJD included stipulations on custody, apportionment of the retirement accounts and automobiles, and distribution of real property, as well as the judge's rulings on the contested issues of equitable distribution, alimony, child support, college contribution, life insurance, health insurance, tax exemption and counsel fees. The court was aware of defendant's unemployment and subsequent reinstatement.*fn1

We conclude that the court's ruling requiring defendant to provide health insurance established the law of the case. Once the obligation was established, it continued, notwithstanding the October 2010 and March 2011 post-judgment orders addressing the issue, until the May 2011 order.

At the March 2011 motion hearing, the court addressed defendant's unemployment and his objection to provide the insurance. The court did not have sufficient information to make the determination as to whether defendant should be relieved of the obligation. The order denied defendant's motion to enroll the child in NJ Family Care without prejudice, but permitted him to renew the application if he included the comparative costs of the State's insurance program and COBRA. The March order is interlocutory as it only partially resolved that issue.

The subsequent probation hearing*fn2 to address enforcement of the health insurance requirement resulted in an order that violated the spirit and intent of the law of the case doctrine, which generally bars a second judge on the same level from differing with an earlier ruling, in the absence of additional developments or proofs. See Reldan, supra, 100 N.J. at 204. When he appeared before the hearing officer, defendant was still unemployed and no additional proofs or developments were presented to the hearing officer to justify a recommendation to supersede the March order or to grant relief to defendant, particularly suspension of the obligation.

The May order also violated the essence of the doctrine by not considering its impact on the prior order. "A hallmark of the law of the case doctrine is its discretionary nature, calling upon the deciding judge to balance the value of judicial deference for the rulings of a coordinate judge against those 'factors that bear on the pursuit of justice and, particularly, the search for truth.'" Hart v. City of Jersey City, 308 N.J. Super. 487, 498 (App. Div. 1998)(quoting Reldan, supra, 100 N.J. at 205). Neither the hearing officer nor the subsequent judge fully reviewed the prior orders or the court's file before making the recommendation or signing the May order. Had either undertaken such a review, it would have been apparent that the May order was in direct conflict with the prior order. The failure to balance the hearing officer's recommended relief --suspension of the obligation -- with the March order, or give deference to it, resulted in a subsequent order that not only contradicted but was inconsistent with Judge Weisberg's management of the case and his efforts to compel compliance.

Even if we accepted defendant's argument that the law of the case doctrine had greater influence here, it would still fail. The law of the case doctrine does not apply where a judge reconsiders an interlocutory order. Gonzalez v. Ideal Tile Importing Co. 371 N.J. Super. 349, 356 (App. Div. 2004), aff'd, 184 N.J. 415 (2005), cert. denied, 546 U.S. 1092, 126 S. Ct. 1042, 163 L. Ed. 2d 857 (2006). Rule 4:42-2 provides that "any order or form of decision which adjudicates fewer than all the claims as to all the parties shall not terminate the action as to any of the claims, and it shall be subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice."

Judge Weisberg was fully empowered to reconsider and set aside the May order entered by another judge.


Having determined that defendant's law of the case argument has no merit, we turn our attention to the merits of Judge Weisberg's August order. Defendant claims the judge's decision requiring defendant to provide the health insurance through COBRA and pay the premium from the trust account was arbitrary, an abuse of discretion and manifestly unjust. We disagree.

In fashioning relief, a Chancery judge has broad discretionary power to adapt equitable remedies to the particular circumstances of a given case. Salorio v. Glaser, 93 N.J. 447, 469, cert. denied, 464 U.S. 993, 104 S. Ct. 486, 78 L. Ed. 2d 682 (1983); Mitchell v. Oksienik, 380 N.J. Super. 119, 130-31 (App. Div. 2005). Equitable remedies "are distinguished by their flexibility, their unlimited variety," and "their adaptability to circumstances." Salorio, supra, 93 N.J. at 469 (internal quotation and citation omitted). The rule on relief to litigants, Rule 1:10-3, upon which plaintiff relied in the trial court, provides that, in family actions, the court may grant additional remedies as provided in Rule 5:3-7. "On finding that a party has violated an alimony or child support order the court may, in addition to remedies provided by Rule 1:10-3, grant any of the following remedies, either singly or in combination: . . . (8) any other appropriate equitable remedy."

R. 5:3-7 (emphasis added). Because equitable remedies are largely left to the judgment of the court, which has to balance the equities and fashion a remedy, such a decision will be reversed only for an abuse of discretion. Sears Mortgage Corp. v. Rose, 134 N.J. 326, 354 (1993).

The specter of the lack of health insurance for the parties' child compelled the judge's re-examination of the issue. The judge properly balanced the needs of the child with the cost of the insurance on defendant, and fashioned an equitable remedy using the trust fund monies for the premium.

Defendant's present objections to the trial court's orders are not well taken. First, the judge had authority to act on his own order. Pursuant to Rule 1:10-3, a court may take measures to achieve compliance with its orders. See Roselin v. Roselin, 208 N.J. Super. 612, 618 (App. Div.) (holding appointment of a receiver or entry of recordable judgment transferring property are appropriate means for fulfilling the court's obligations to enforce its orders), certif. denied, 105 N.J. 550 (1986); Pressler, Current N.J. Court Rules, comment 4.4.4 on R. 1:10-3 (2009). Second, the judge followed the protocols dictating the methods for disbursement from the trust account. The trust account was established to fund defendant's obligations including any child support shortfall, and the court determined the payment of the insurance premium to be within the permitted uses. We discern no arbitrariness or abuse of discretion and conclude that defendant's argument is without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).


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