CASSANDRA Y. DUPONT v. KEVIN A. RUFFIN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5790-04T25790-04T2

CASSANDRA Y. DUPONT, (f/k/a

CASSANDRA Y. RUFFIN),

Plaintiff-Respondent,

v.

KEVIN A. RUFFIN,

Defendant-Appellant.

_________________________________

 

Submitted March 1, 2006 - Decided September 1, 2006

Before Judges Wefing, Wecker and Fuentes.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Union County, FM-20-571-04G.

Donahue, Hagan, Klein, Newsome & O'Donnell,

attorneys for appellant (Edward J. O'Donnell,

of counsel; Mr. O'Donnell and Terryann Bradley,

on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant, Kevin A. Ruffin, appeals on both procedural and substantive grounds from several portions of a Final Judgment of Divorce entered after a nine-day trial. Defendant's procedural argument concerns the trial judge's alleged failure to accommodate his need for a courtroom environment with reduced allergens. As a result, defendant participated by telephone virtually throughout the trial. Defendant's substantive arguments concern the judge's custody determination and the determination of credits owed to plaintiff, Cassandra Y. Dupont, against the equity in the parties' marital property.

The parties were married on December 30, 1984. They have two children: a daughter, who was nineteen years old and a student at Rutgers University at the time of trial, and a son who was then fifteen and attended the local public high school.

During the majority of the parties' married years, defendant worked at Bell Laboratories and later with Lucent Technologies. In 2000, defendant accepted a position with British Technologies Group ("BTG") in Philadelphia. While working in Philadelphia, defendant maintained an apartment there, returning home on weekends. In the summer of 2001, defendant left that job, citing an unspecified medical condition that was affecting his ability to work. He returned to live full-time with plaintiff and their children in New Jersey.

On October 8, 2003, plaintiff filed a complaint for divorce, alleging extreme cruelty over a four-year period. In her complaint, plaintiff sought custody of the parties' children. Defendant filed an answer and counterclaim in which he sought joint legal custody of the children and designation as the parent of primary residence. Defendant subsequently amended his complaint to include a demand for rehabilitative alimony. After the initial pleadings were filed, both parties proceeded pro se. The parties met with the trial judge for two case management conferences. Following the first conference, the judge issued an order appointing Dr. John LoConte "to conduct a psychological evaluation as to the custody of [their son]." At the next conference, the parties agreed to allow Dr. LoConte's report to be admitted into evidence at trial, without his testimony but with the right to comment on the report. In his report, Dr. LoConte stated: "It is firmly recommended that Mrs. DuPont-Ruffin gain primary physical custody of her son [ ] despite [his] stated goals to live with his father."

Before the trial began, defendant made a written request to the judge to move the trial to a courtroom in the newer building of the Union County Courthouse complex, claiming that he suffered from severe allergies and his symptoms were exacerbated following each of his appearances in the older courthouse building. Defendant said that his symptoms included "headache, fatigue, inability to concentrate, irritableness and others . . . " He said he did not suffer these symptoms when he entered and remained in the newer portion of the building.

The judge denied defendant's request to move the trial. In a letter dated March 11, 2005, the judge offered instead that if defendant purchased an air filter, she would have it placed near defendant during the trial. The judge stated that her own allergist made a similar recommendation when she reported persistent coughing while she was assigned to a different courtroom in the old building; she had no such problem in her current courtroom.

On the first day of trial, March 29, 2005, defendant appeared in the courtroom but reported feeling soreness in his throat and an inability to concentrate. The judge discussed with defendant possible alternatives to address defendant's alleged difficulties, including his appearance by telephone. The following day, March 30, 2005, defendant came to the courthouse and communicated with the court by cellular telephone while physically remaining in a different area of the building. The communication was unsatisfactory, and the judge suggested that on the following day, defendant should remain at home so that they could be connected by landline telephone for better reception. The trial continued on March 31, April 5, 6, 7, 12, and May 16, 2005; another case management conference was held on April 22, 2005. Defendant was not present at the courthouse during any of these proceedings; he participated entirely by telephone from home.

The judge rendered an oral decision on May 16, and on May 20, 2005, an Amended Dual Final Judgment of Divorce was filed. The judgment provided that the parties were to share joint legal custody of their son and that "the plaintiff shall be the parent of primary residence and the defendant shall be the parent of alternate residence." The order also denied defendant's demand for rehabilitative alimony and granted plaintiff's request that she receive a credit for a portion of the household overhead expenses that she paid during the four years of defendant's unemployment. Specifically, plaintiff was awarded "a credit of $2,000 per month from August 2001 through . . . May, 2005 . . . ." against defendant's share of equitable distribution.

These are defendant's arguments on appeal:

POINT I

THE DEFENDANT WAS DEPRIVED OF DUE PROCESS WHEN THE TRIAL COURT EFFECTIVELY PREVENTED HIM FROM PARTICIPATING IN PERSON DURING HIS DIVORCE TRIAL.

POINT II

THE DEFENDANT'S RIGHTS UNDER THE AMERICANS WITH DISABILITIES ACT AND NEW JERSEY LAW AGAINST DISCRIMINATION WERE VIOLATED WHEN THE TRIAL COURT FAILED TO PROVIDE REASONABLE ACCOMODATIONS TO ENABLE DEFENDANT TO PARTICIPATE IN PERSON IN HIS DIVORCE TRIAL.

POINT III

THE TRIAL COURT'S CUSTODY DECISION WAS MADE IN ERROR AS IT WAS BASED UPON INADMISSIBLE HEARSAY EVIDENCE.

POINT IV

THE TRIAL COURT'S CUSTODY DECISION WAS IN ERROR AS IT ABROGATED ITS RESPONSIBILITY TO ANALYZE THE FACTS OF THIS MATTER TO DR. LOCONTE.

POINT V

THE TRIAL COURT ERRED IN AWARDING RETROACTIVE CREDITS TO THE PLAINTIFF FOR YEARS PRIOR TO THE COMMENCEMENT OF THE PARTIES' DIVORCE ACTION.

A. Defendant was provided no advance notice of plaintiff's claim.

B. The trial court failed to make any findings as to the actual amount of any credits alleged by the plaintiff.

C. The trial court inappropriately provided relief pre-dating plaintiff's Complaint for Divorce.

D. The trial court made no finding that the defendant was voluntarily unemployed.

POINT VI

THE TRIAL COURT ERRED IN FAILING TO PROPERLY ASSESS THE DEFENDANT'S REQUEST FOR REHABILITATIVE ALIMONY IN ACCORDANCE WITH THE STATUTORY CRITERIA SET FORTH IN N.J.S.A. 2A:34-23.

I

Defendant alleges that he was denied his right to due process when the trial court denied his request to have his trial moved to a different courtroom to accommodate his severe allergies. He claims that as a result of the "obstacles" that he faced due to his physical absence from the courtroom during trial, "[h]e was not privy or cognizant of the court's rulings or the testimony of plaintiff and other critical witnesses."

Defendant presented the judge with letters from his treating physician noting that he suffered substantial symptoms as a result of allergies to several common substances, and the judge apparently believed that defendant was suffering from serious allergic sensitivity. If more substantial or specific evidence was required to support defendant's need for accommodation, it appears that the physician's testimony could have been secured by telephone.

The judiciary has a written policy respecting access to the courthouse for persons in need of an accommodation due to physical disability. Each county, including the county where the trial took place, has a designated person to oversee such a request and a procedure for seeking such accommodation. In Union County, it is the Assignment Judge to whom the request should be addressed. There is no record that defendant's request was directed to the Assignment Judge's attention. Particularly in a non-jury trial such as this, it does not seem an undue burden for the trial judge to have attempted to obtain the use of a courtroom in the newer building.

Nonetheless, a careful review of the record does not support defendant's assertion that he was not cognizant of court rulings or witness testimony. When defendant expressed his difficulty or inability to hear, the judge either saw that what defendant missed was repeated, or delayed the proceedings until defendant's ability to hear the proceedings improved. Our reading of the transcript belies defendant's contention that the decision "was reached essentially absent any meaningful participation by the defendant." If anything, both parties, each of whom appeared pro se, engaged in constant "colloquy" with the judge, repeatedly interrupting her and each other throughout the trial.

Despite our disapproval of the limited accommodation to defendant's allergic condition, with the result that he appeared by telephone throughout virtually the entire trial, we conclude that the final judgment was not affected by the procedure, and defendant was not actually prejudiced thereby.

Defendant's reliance on this court's decision in Peterson v. Peterson, 374 N.J. Super. 116 (App. Div. 2005), is unpersuasive. The Peterson defendant appealed from a final restraining order against him. This court, in an opinion written by Judge Graves, reversed the order and remanded for a new trial, citing the defendant's inability to cross-examine the plaintiff and her witness, and the failure of the lower court to permit defendant's witnesses to testify. Id. at 125-26. Here, although defendant alleges that he was disadvantaged by not being physically present in the courtroom, he does not contend that his opportunity to cross-examine witnesses was limited or that he was denied the opportunity to present witnesses on his own behalf. The record demonstrates that defendant did have an adequate opportunity to do both.

II

Defendant alleges that the trial judge erroneously relied upon the report prepared by a court-appointed psychologist who did not testify at trial. Dr. John LoConte prepared a psychological evaluation of the parties and made recommendations respecting custody and parenting time. Dr. LoConte's report, although hearsay, was admitted into evidence at trial by prior agreement of the parties.

Defendant argues, without any basis in the record, that the judge "essentially adjudicated the custody issues based solely on the recommendations of Dr. LoConte." Whereas the judge's findings and decision on custody and parenting time span more than eighty pages of transcript, defendant cites only two pages of that transcript as evidence of allegedly improper reliance on the doctor's report. The record here bears no similarity to the circumstances in P.T. v. M.S., 325 N.J. Super. 193 (App. Div. 1999), upon which defendant relies. There, we reversed an order changing sole custody of a child because the judge failed to hold a plenary hearing on custody, barred cross-examination of the expert, and "ceded the court's authority to an appointed expert psychologist." Id. at 198-200, 214, 216. Here, the judge interviewed the child whose custody was at issue, and in rendering her opinion on custody, the judge referred to the child's statements, his sister's testimony, and the testimony of both parents. The trial judge did not rely exclusively on the findings of the expert, much less cede her decision-making authority to the expert.

III

Defendant contends that he lacked adequate notice that plaintiff sought credit for expenses that she paid while defendant was unemployed. Although plaintiff's pleading did not make specific reference to retroactive contributions, or even to the equitable distribution of the parties' marital assets, such distribution is inherent in a divorce proceeding, and a determination of credits that may be due between the parties is a component of the determination of an equitable division of assets.

Having said that, we nonetheless find no basis for the trial court's order awarding plaintiff credit against defendant's share of the equity in the marital home for the entire period when defendant was unemployed. The credit represented partial reimbursement for mortgage and related shelter expenses that plaintiff paid while the parties were married and living together, with their children, both before and after plaintiff filed her divorce complaint. Plaintiff, who was earning approximately $90,000 per year, paid those expenses while defendant was unemployed. The judge reasoned that because defendant did not offer medical testimony sufficient to prove that he was medically unable to work, he owed plaintiff a portion of those household expenses, which the judge determined to be $20,000 per year.

We agree that such an assessment was a reasonable discretionary decision for the period after plaintiff filed her complaint. Absent evidence of an earlier, irretrievable breakdown of the marriage, it is at that point that the marital partnership is deemed to have ended. See, e.g., Pascale v. Pascale, 140 N.J. 583, 609 (1995); Portner v. Portner, 93 N.J. 215, 219-20 (1983); Painter v. Painter, 65 N.J. 196, 218 (1974). To the extent that plaintiff paid defendant's share of their joint living expenses thereafter, she is entitled to a credit out of defendant's share of equitable distribution. But while the parties remained married and living together, the fact that one party became unemployed does not trigger a duty of reimbursement for that party's or the family's expenses. After all, "marriage is a shared enterprise, a joint undertaking, that in many ways is akin to a partnership." Rothman v. Rothman, 65 N.J. 219, 229 (1974).

The fact that defendant's financial contribution during the last two-and-one-half years of the marital partnership was reduced to the level of his unemployment insurance benefits presents a circumstance no different from any income disparity between spouses. It does not justify a retroactive equalization of financial contributions. The judge awarded plaintiff a $76,000 credit, based on $2,000 per month for the period August 2001 through May 2005, but plaintiff's complaint was not filed until October 2003. The judgment must be modified to limit plaintiff's credit to the period after plaintiff filed her complaint. We therefore remand for correction of the judgment to reflect an appropriate, reduced credit, consistent with this opinion.

IV

N.J.S.A. 2A:34-23d provides that "[r]ehabilitative alimony shall be awarded based upon a plan in which the payee shows the scope of rehabilitation, the steps to be taken, and the time frame, including a period of employment during which rehabilitation will occur." However, before a court "can even consider rehabilitative alimony, there must be evidence presented which could form the basis of such an award, and such factors must be proven by the greater weight of the evidence." Finelli v. Finelli, 263 N.J. Super. 403, 406 (Ch. Div. 1992). Here, the judge found that defendant was unable to establish that his medical condition caused him to be unable to work and to support himself.

At a case management conference on April 22, 2005, the judge advised defendant that she would allow a doctor to testify on his behalf if defendant could obtain a certification that the doctor would testify "within a reasonable degree of medical certainty that Mr. Ruffin was not able to work during some or all of the [p]ast four years." However, when defendant did not obtain such a certification, the judge reminded him that there was no evidence in the record to establish that his medical conditions precluded him from working at any time during the past four years.

The exchanges between the judge and defendant on the subject of medical testimony were directed at the issue of credits (discussed in Part III of this opinion). It is, however, plain that defendant did not offer sufficient evidence that his medical condition severe allergies prevented him from working in his field or in any field. Moreover, he did not proffer a plan that would include "the scope of rehabilitation, the steps to be taken, and the time frame" for such rehabilitation, as required by N.J.S.A. 2A:34-23d. Defendant was unable to provide the requisite evidence upon which his claim for such relief could be based. See Finelli, supra, 263 N.J. Super. at 406. We find no reason to intervene in the decision denying rehabilitative alimony.

Affirmed in part, reversed in part, and remanded.

 

Because the parties' daughter is over the age of eighteen, her custody is not in issue.

Defendant's claim that "the trial court offered him no alternative reasonable accommodations" in response to his request that the trial be moved to a different courthouse building is somewhat misleading. The judge made arrangements to have the courtroom cleaned for defendant's benefit, and offered to conduct the trial during the morning, to allow defendant to return home and shower prior to participating by telephone during the afternoon.

Evidence of an allergic condition sufficient to warrant accommodation in the courthouse does not equate to evidence that the condition renders defendant unable to work, the subject we address in Part IV of this opinion.

Mortgage, taxes and insurance as reflected on defendant's own Case Information Statement totaled $3,924 per month; thus $20,000 per year represents approximately forty-two percent of the annual payments.

It appears that the $76,000 credit may be a net figure, after offsetting credits due to defendant.

(continued)

(continued)

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A-5790-04T2

September 1, 2006