Argued March 26, 2014.
Approved For Publication June 17, 2015.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-0759-06.
Edward Fradkin argued the cause for appellant ( Law Office of Edward Fradkin, LLC, attorneys; Mr. Fradkin, on the briefs).
Amy Sara Cores argued the cause for respondent ( Cores & Associates, LLC, attorneys; Ms. Cores, on the brief).
Before Judges FUENTES, SIMONELLI and FASCIALE.
[441 N.J.Super. 130] FUENTES, P.J.A.D.
In this appeal, plaintiff-wife argues the Family Part Judge who decided a number of post-judgment motions erred in denying her application to recuse himself. Plaintiff claims the judge's impartiality was tainted when his law clerk engaged in employment discussions with and ultimately accepted an offer of employment from the attorney who represents defendant-husband. Plaintiff claims defendant's counsel discussed employment opportunities with the judge's law clerk during the time in which the judge was managing this contentious post-divorce motion practice.
Plaintiff also alleges the law clerk is related to the trial judge in some undisclosed degree of consanguinity, which the judge refused to clarify despite plaintiff's counsel's repeated requests. Despite the lack of specific details concerning the law clerk's relationship to the judge, plaintiff claims the law clerk accepted defense counsel's offer of employment and began
working with defense counsel at the conclusion of her clerkship. Plaintiff points out that the judge also continued to preside over this case and decide the parties' outstanding post-judgment motions after the law clerk was employed by defense counsel. Plaintiff argues the combined effect of all these events created a conflict of interest or, at the very least, an appearance of impropriety requiring the judge's recusal.
Under these circumstances, plaintiff argues the trial judge erred in denying her motion to vacate orders the judge entered during the time his law clerk was engaged in employment discussions with defense counsel and after the law clerk began working for defense counsel's firm. Alternatively, plaintiff seeks a remand for the judge to develop a complete record addressing the ethical issues raised and to make specific factual findings and conclusions of law explaining the basis for denying plaintiff's motion seeking his recusal from this case.
After carefully reviewing the record before us, we are compelled to vacate the order denying plaintiff's motion seeking the recusal of the trial judge and remand this matter for the trial judge to [441 N.J.Super. 131] make specific findings: (1) describing the judge's specific familial relationship to his former law clerk; (2) determining with particularity the timeframe of defense counsel's employment discussions with the judge's law clerk; and (3) stating the specific time defense counsel made an offer of employment to the judge's law clerk. Building upon these findings, the judge must then determine the extent to which the law clerk's employment association with defense counsel created an appearance of impropriety requiring his recusal under the standards adopted by the Supreme Court in In re Reddin, 221 N.J. 221, 111 A.3d 74 (2015), DeNike v. Cupo, 196 N.J. 502, 958 A.2d 446 (2008), and Rule 1:12-2.
The parties married in 1999, had three children, and divorced in 2006. They have engaged in extensive and contentious post-divorce motion practice, resulting in numerous court hearings followed by orders intended to dispose of the issues raised by the parties. Both parties have also been tenacious in their efforts. This is the third appeal this court has decided concerning orders entered by the Family Part adjudicating post-judgment motions.
In the first appeal, defendant challenged the decision of the Family Part denying his motion to reduce his alimony and child support obligations. P.P. v. N.P., No. A-1174-09, (App.Div. Nov. 22, 2010) (slip op. at 1-2). We affirmed the Family Part's decision to deny a reduction of defendant's support obligation " for lack of sufficient and competent documentation to establish a prima facie basis for a support modification. However, with respect to the . . . enforcement order, we remand[ed] for an ability-to-pay hearing." Id. at 2.
In the second appeal, plaintiff challenged an order " restraining her from relocating within the state," and a subsequent order " establishing parenting time." P.P. v. N.P.,
No. A-1246-10 (App.Div. Dec. 23, 2011) (slip op. at 1-2). We affirmed the Family Part, concluding the judge's decision with [441 N.J.Super. 132] respect to the two issues raised by plaintiff was predicated on the terms of the Property Settlement Agreement (PSA). Id.
This third appeal relates back to our opinion disposing of the first appeal, P.P. v. N.P., supra, No. A-1174-09, in which we directed the trial court to conduct an ability-to-pay hearing to determine defendant's ability to fulfill his support obligations.
On March 28, 2012, the trial court entered an order withdrawing " with prejudice" defendant's request for the ability-to-pay hearing and dismissed all outstanding issues we directed the trial court to address on remand, " except" for preserving " either party's right to seek legal fees[.]"
The record shows defense counsel transmitted this form of order entered by the court as an attachment to a letter dated March 26, 2012. In this four-page, single-spaced letter, defense counsel described in detail her client's then financial status and discussed findings allegedly made by a forensic accountant concerning defendant's financial status. Defense counsel also represented to the court that " plaintiff has been sending police officers to the residence where the children are residing to effect service. We would ask that this cease as it is detrimental to the children's welfare."
Without the benefit of a sworn certification or other competent evidence, defense counsel recounted negative comments allegedly made by the forensic accountant against plaintiff and discussed plaintiff's efforts to obtain discovery from defendant's fiancé e and other third parties who may have had knowledge of defendant's finances. Defense counsel also noted her client's wishes to settle the outstanding support issues and his " multiple efforts to try to resolve this matter." The letter ended with the following statement:
As both parties have spent an offensive amount of money on legal fees litigating this issue, we feel that under the circumstances one side must back down. We see no end in sight. We are convinced that the plaintiff is incapable of settling these issues. While we believe that we would be ultimately be [sic] successful in proving that in 2009 our client did not have the ability to pay, at this point this does not justify the continued litigation costs. Unfortunately, the plaintiff does not agree.
[441 N.J.Super. 133] To that end the pending motion which addresses the various inappropriate subpoenas issued by the plaintiff is withdrawn. Again, there is no subpoena power post-judgment without a pending hearing. We further submit that the continued deposition of our client is no longer proper under the circumstances. Thus this allegedly emergent issue raised by the plaintiff's counsel last week is moot.
Defense counsel's letter triggered an immediate response from plaintiff's counsel. In his letter dated March 30, 2012, plaintiff's counsel objected to defense counsel's unilateral decision to communicate to the court and forgo a hearing that plaintiff's counsel believed was ordered by this court's decision to remand the issue of arrears to the trial court for a hearing. Plaintiff's counsel also objected to defense counsel's characterization of the status of the forensic accountant's efforts to ascertain an accurate and complete understanding of defendant's financial status. Plaintiff's counsel again indicated that defendant had misrepresented to the court in 2009 his financial ability to meet his support obligations.
Plaintiff's counsel asked the court to go forward with the ability-to-pay hearing in order to establish the exact amount of arrears. Counsel also took issue with defense counsel's statement concerning the legal viability of plaintiff's subpoenas and her disclosure and alleged mischaracterization of settlement discussions. Plaintiff's counsel requested the court to admonish defense counsel for claiming to have the authority to cancel the hearing and informing third parties not to honor or respond to plaintiff's subpoenas. Despite plaintiff's counsel's efforts, the trial judge signed the
form of order submitted by defense counsel.
On April 20, 2012, plaintiff filed a formal motion seeking to vacate the March 28, 2012 order. In a letter-brief in support of the motion, plaintiff's counsel argued the order was " improperly submitted" by defense counsel and " improperly entered" by the court. Plaintiff's counsel particularly emphasized that the manner in which defense counsel presented this order to the court violated established rules of procedure codified in Rule 4:42-1, and made substantive representations without competent evidence to support them.
[441 N.J.Super. 134] Plaintiff's counsel also sought the trial judge's disqualification pursuant to Rule 1:12-1. Counsel noted in his certification that after he received the order signed by the judge, he personally attempted to schedule a telephone conference with the judge and defense counsel " in order to express my position that the Order was improperly entered and should be vacated." Plaintiff's counsel represented in his certification that
[t]he phone conference was scheduled for April 19, 2012 with Your Honor, but unfortunately, that was cancelled by the [c]ourt. At this point I was left with no other choice but to file this application due to my reasonable belief that I do not believe that the plaintiff can receive a fair and unbiased hearing before Your Honor.
Defendant filed a cross-motion asking the court to restrain plaintiff from filing future motions seeking the recusal of the trial judge and seeking sanctions " in the event that the plaintiff files future recusal motions." Defendant also asked the court to decide defendant's pending motion seeking an award of counsel fees incurred in defending plaintiff's first appeal, and to enter an order " restraining and enjoining counsel for the plaintiff from sending correspondence to the court in this matter except without [sic] prior express permission or as part of a properly filed pleading."
By order dated July 20, 2012, the trial judge denied plaintiff's motions seeking: (1) the judge's recusal; (2) to vacate the March 28, 2012 order; and (3) to compel defendant to pay counsel fees incurred by plaintiff in the prosecution of the motion. In the same order, the trial judge denied defendant's cross-motion seeking to restrain plaintiff's counsel or impose sanctions. However, the judge granted defendant's motion with respect to counsel fees and awarded $11,500 as counsel fees incurred in defending the first appeal. The judge also reserved making a final determination " as to counsel fee awards for all counsel fees associated with the discovery leading up to the subsequent withdraw [sic] of [d]efendant's request for a plenary hearing[,]" and directed both parties to submit a certification of services. Finally, the judge determined defendant owed plaintiff a total of $18,443.51 in unallocated arrears for child support and alimony, including defendant's obligation [441 N.J.Super. 135] " for the entire month of June." The judge directed the probation department to update its records accordingly and " adjust for any payments made since then."
By letter dated August 7, 2012, addressed to the trial judge, plaintiff's counsel raised what he characterized as " a very serious issue about whether pursuant to Rule 1:12-1 and Canon 4 of the Code of Conduct for Judiciary Employees" the judge should recuse himself from this case, possibly retroactive to the previous orders entered in March and July 2012. Plaintiff's counsel indicated that the judge's law clerk had accepted a position with defense counsel's law firm. Plaintiff's counsel sought discovery to ascertain when defense counsel offered the position to the
law clerk and whether the law clerk " worked on any aspect of this matter" thereafter.
Plaintiff's counsel also claimed there was another basis that may require the trial judge's recusal from the case:
I have been advised by a fellow lawyer that Your Honor has a familial relationship with [the law clerk]. If I have been incorrectly advised then I apologize. However, if there is a familial relationship between Your Honor and [the law clerk] then pursuant to Rule 1:12-1 and Canon 4 that [sic] Your Honor should be recused from any matters involving [defense counsel's] office regardless of whether [the law clerk] worked on those files. I ask that Your Honor advise my office as to whether pursuant to Directive 17-08 Policy on the Appointment of Judges' Relatives to Judiciary Position issued on December 2, 2008 by the Honorable Glenn A. Grant, a request was made that permitted you to hire [the law clerk]. For these reasons as well it is respectfully submitted that not only should Your Honor be recused from this case, but that you should sua sponte vacate the July 20, 2012 Order that was entered in order to eliminate the need for an appeal to be filed.
Defense counsel responded to plaintiff's letter on August 13, 2012. In response to plaintiff's counsel's allegations concerning the judge's law clerk, defense counsel stated that the law clerk did not accept an offer of employment with her firm until August 1, 2012. Defense counsel thus objected to plaintiff's counsel's request for " 'discovery' on this issue." Defense counsel accused plaintiff's counsel of trying to increase the cost of litigation. Defense counsel also characterized plaintiff's counsel's concerns regarding a possible conflict of interest involving the judge's law clerk's employment with her law firm as " nothing more than an ...