MARY E. WHITE v. CARL J. FLORCZAK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1766-05T11766-05T1

MARY E. WHITE,

Plaintiff-Appellant,

v.

CARL J. FLORCZAK,

Defendant-Respondent.

 

Submitted September 20, 2006 - Decided October 23, 2006

Before Judges Hoens and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-1647-93.

Mary E. White, appellant pro se.

Respondent Carl J. Florczak did not file a brief.

Anne Milgram, Acting Attorney General, attorney for respondents Hon. Richard Newman, P.J.A.D. and Hon. Harvey Weissbard, P.J.A.D. (Patrick DeAlmeida, Assistant Attorney General, of counsel; Alyson R. Jones, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff Mary Elizabeth White appeals from three November 4, 2005 orders denying relief that she had sought against defendant Carl J. Florczak and two judges by way of three separate applications for Orders To Show Cause. We affirm.

The following factual and procedural history of this matter is relevant to the issues advanced on appeal. Plaintiff and defendant were married in April 1987 and have one child who was born in February 1992. When the parties were divorced in 1994, they were granted joint legal custody, and plaintiff was awarded physical custody, of their child. In May 1995, defendant was granted temporary physical custody of the child after he arrived at plaintiff's home and discovered her distraught and hysterical, necessitating immediate medical assistance for her. In June 1995, a further order awarding physical custody of the child to defendant was entered and plaintiff was granted permission to have visitation with the child. In 1996 the court ordered both parties to undergo psychiatric evaluations. The record does not reveal the outcome of those evaluations but it appears that the parties thereafter disputed plaintiff's rights to visitation and her request that physical custody be returned to her.

On February 17, 2005, Judge McDaniel issued an order suspending plaintiff's parenting time and directing that plaintiff show cause on February 25, 2005 why the suspension of her parenting time should not be made permanent. After hearing oral argument and considering the papers filed in connection with that Order To Show Cause, Judge McDaniel issued a further order on February 25, 2005 directing both of the parties to submit to psychiatric evaluations. That order also provided that the judge would convene a plenary hearing to address the issue of plaintiff's parenting time and her application for physical custody of the child following submission of the reports of the psychiatric evaluations.

Shortly thereafter, plaintiff sought relief from the February 25, 2005 order by way of an application for an Order To Show Cause. That relief was denied by Order dated March 4, 2005. In denying that application, the judge advised plaintiff that her request for immediate relief could not be granted since she had not complied with his earlier directive that she submit to the psychiatric evaluation. He further advised her that he would schedule a plenary hearing to address custody of the child, consistent with the child's best interests, after plaintiff had completed the previously-ordered psychiatric evaluation.

Plaintiff next filed both a request for emergent relief with the Appellate Division and an appeal ("the first appeal"), each asserting that she should be entitled to an immediate restoration of her parenting time and an immediate award of physical custody. The application for emergent appellate relief was considered by Judge Newman and was denied with an explanation that it did not meet the requirements for emergent relief. The first appeal, which was calendared and which has proceeded while the matters now before us were transpiring, has since been addressed in an unpublished opinion. See White v. Florczak, No. A-4287-04T1 (App. Div. May 10, 2006). The essence of that opinion is that in the absence of plaintiff's compliance with the judge's directive that she submit to a psychiatric evaluation which would then be considered as part of the evidence in a plenary hearing on custody, her appeal was interlocutory and could not proceed.

Following the denial of the application for emergent relief and while the first appeal was pending, plaintiff filed a motion in the Appellate Division, seeking pendente lite relief. That motion requested, again, an immediate restoration to plaintiff of her parenting time with the child, as well as an order holding defendant in contempt for his alleged violation of a September 2001 order relating to payment of a bill for the child's medical care. By orders dated June 30, 2005, and August 4, 2005, Judge Weissbard denied that motion and plaintiff's reconsideration motion, respectively.

Plaintiff next filed the three applications for Orders To Show Cause that form the basis for this appeal. Two of those applications sought to hold the two Appellate Division judges in contempt for issuing their orders denying her emergent applications and motions and for doing so without specifically setting forth their reasons for those orders. The third application sought relief against defendant based on his alleged refusal to disclose information about the couple's child that plaintiff had requested.

On November 4, 2005, Judge Cassidy declined to enter any of the requested Orders To Show Cause for reasons she explained on the record. In essence, she concluded that she could not issue the Orders To Show Cause directed to the two Appellate Division judges because she lacked jurisdiction to do so. She reasoned that plaintiff's remedy, as it related to Judges Newman and Weissbard, would lie either in an attempt to appeal their decisions to the Supreme Court through a petition for certification or through a motion returnable in the Appellate Division for reconsideration. Judge Cassidy also declined to issue the Order To Show Cause directed to defendant. She noted that the relief sought by plaintiff as against defendant arose from the earlier 2005 order that was then the subject of a pending appeal and she reasoned that plaintiff's application for an Order To Show Cause was based on plaintiff's dissatisfaction with the appellate process. Judge Cassidy therefore concluded that she lacked the power to issue a further order directed to defendant in light of the pending appeal.

On appeal from the November 4, 2005 denial of the three applications, plaintiff argues that she has been "repeatedly deprived of her rights by the courts" to the detriment of her son. More specifically, she asserts that, as to the applications directed to the two Appellate Division judges, Judge Cassidy erred in her analysis of the scope of her jurisdiction, deprived plaintiff of justice by accepting the applications and then rejecting them, and misunderstood both the record and the nature of the relief she sought. As to the application directed toward defendant, plaintiff asserts that Judge Cassidy misunderstood the relief that plaintiff was requesting and denied her due process both by failing to afford her an opportunity to be heard and by accepting the application for filing and then denying the requested relief. Our review of the record demonstrates that there was no error in Judge Cassidy's analysis or in the proceedings and compels us to therefore affirm.

We discern in plaintiff's brief and record several points that evidence some confusion about the proceedings in which she has been involved. First, to the extent that plaintiff was dissatisfied with the orders issued by Judges Newman and Weissbard, her options were limited. Regardless of whether plaintiff's dissatisfaction with those orders arose from their substance, the procedure utilized or the absence of a written statement of reasons, the avenues for relief were the same. Plaintiff could have sought relief through a motion for reconsideration. See R. 2:11-6. Indeed, she was aware of that option and pursued it as to Judge Weissbard's order denying her application for pendente lite relief. Alternatively, she could have attempted to challenge the Appellate Division judges' interlocutory orders through a motion for leave to appeal them to the Supreme Court. See R. 2:2-2. Resorting to the trial court, however, as a means to overturn the orders of the Appellate Division judges was not an available option and Judge Cassidy quite correctly concluded that she lacked jurisdiction to entertain those applications. Contrary to plaintiff's assertion on appeal, the attempt to challenge the order of an Appellate Division judge, although it may have related to a proceeding in the Family Part, is not itself an "action cognizable" in that Part.

Second, to the extent that plaintiff believed, as she asserts on appeal, that the two Appellate Division judges had violated the canons of Judicial Conduct, her remedy was in the disciplinary forum rather than in the Family Part. See R. 2:15. Plaintiff was aware of this avenue for redress as well, as the record includes documents in the nature of such complaints to the appropriate authorities, together with responses thereto. Nor was her assertion that the judges had engaged in acts in the nature of criminal offenses appropriately pursued in the Family Part. In fact, the record reflects that plaintiff had also presented criminal complaints to the appropriate authorities who had rejected plaintiff's efforts to pursue the two judges on those charges.

Third, to the extent that plaintiff believes that Judge Cassidy erred in permitting the three applications for Orders To Show Cause to be accepted for filing and then denying the requested relief, she misunderstands several fundamental principles. Accepting a paper presented for filing, including an application for an Order To Show Cause, is a ministerial act, see R. 1:5-6; Kimm v. Cha, 335 N.J. Super. 262, 264 n.1 (App. Div. 2000), certif. denied, 167 N.J. 632 (2001); White v. Katz, 261 N.J. Super. 672, 680-81 (App. Div. 1993), and is in no way related to entitlement to the requested relief. Indeed, an Order To Show Cause is only effective, as an initiating pleading, when reviewed and executed by a judge. In that context, Judge Cassidy was required to consider plaintiff's applications for the issuance of the Orders To Show Cause in order to determine if plaintiff was entitled to the relief requested, namely an order to the two Appellate Division judges and to defendant that each of them appear at a show cause hearing. Merely accepting the application for filing did not entitle plaintiff to issuance of the order itself and plaintiff's mistaken belief to the contrary cannot support her argument on appeal.

Finally, plaintiff's challenge to the denial of the relief she requested as against defendant was also appropriately considered and denied by Judge Cassidy. Because the issue that gave rise to her request for relief itself was then pending before the Appellate Division in the first appeal, Judge Cassidy was without jurisdiction to entertain it. See R. 2:9-1.

 
Our review of the several arguments raised by plaintiff on appeal from Judge Cassidy's November 4, 2005 denial of the three applications for Orders To Show Cause directed to the two Appellate Division judges and to defendant reveals no basis on which to interfere with those orders.

Affirmed.

(continued)

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9

A-1766-05T1

October 23, 2006