GEORGE BOGHOSSIAN v. SANDRA PEREIRA, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6661-04T26661-04T2

GEORGE BOGHOSSIAN,

Plaintiff-Appellant,

v.

SANDRA PEREIRA, and

JEFF PEREIRA,

Defendant-Respondent.

_________________________________

 

Submitted March 6, 2006 - Decided March 24, 2006

Before Judges Parrillo and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, County of Bergen, Docket No. FD-02-1474-05.

George Boghossian, appellant pro se.

Jeff and Sandra Pereira, respondents pro se.

PER CURIAM

Plaintiff, George Boghossian, is the father of defendant, Sandra Pereira, and father-in-law of defendant, Jeff Pereira. On June 6, 2005, plaintiff filed a complaint against defendants seeking to establish his right to visitation with M.P., his granddaughter, age five, pursuant to the Grandparent Visitation Statute, N.J.S.A. 9:2-7.1. Plaintiff's application was opposed by defendants, and the matter was assigned to Judge Torack for trial on July 1, 2005. Prior to trial, plaintiff filed a motion requesting Judge Torack recuse himself from the matter because he had presided over plaintiff's prior divorce case. On July 1, 2005, Judge Torack denied the motion for recusal, and following a trial, denied plaintiff's application for visitation, concluding that plaintiff had failed to establish by a preponderance of the evidence that visitation was necessary to avoid harm to the child. A confirmatory order was entered that date. Subsequent to plaintiff filing his notice of appeal, Judge Torack rendered a comprehensive, seven-page supplemental written opinion, pursuant to Rule 2:5-1(b), amplifying his decision of July 1, 2005, denying plaintiff's application for grandparent visitation.

On appeal, plaintiff argues that the judge erred in denying his motion for recusal, and denying his application for grandparent visitation. We disagree, and affirm.

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Such deference is "especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Tp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). It is against these standards that we review the decision below.

We have carefully reviewed the record, and conclude that plaintiff's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We affirm substantially for the reasons articulated by Judge Torack in his oral decision of July 1, 2005, and in his thoughtful, written supplemental opinion of August 25, 2005. We add only the following comments concerning plaintiff's motion for recusal.

Plaintiff supported his motion for recusal with a certification which sets forth the basis for the motion:

Judge Torack heard my divorce case and decided on my divorce decree back [on] June 30, 2004. Further[,] I was informed by my attorney (at the time)[,] Robert Corcoran[,] that Judge Torack indirectly threatened me during the hearing of my divorce case by indicating that unless I settled my case I would be faced with harsher decisions and I might lose everything.

At time of argument on the motion on July 1, 2005, plaintiff stated to Judge Torack:

Okay. Here [is] what happened, [Y]our Honor. I was here exactly one year and a day ago going through my divorce finalization in court, in front of you here in your courtroom. And before my decision to settle my case with my divorce, I was coerced by my attorney, Robert Corcoran, to believe that you had indirectly threatened me that I would lose more of my case if I had not settled the matter. And I did not think that it would be proper for me to stand in front of you, Judge, to understand that if you came out with that statement to my attorney -- which I do [not] believe you did, by the way, okay? I do [not] believe you did that.

And I think that he lied to me to make me settle the matter. (emphasis added).

In ruling on the motion, the judge stated:

I have no recollection of your divorce or anybody else. I go through so many cases.

Now Mr. Corcoran is one of the best family lawyers in the state. His advice, if he gave it to you and told you to settle the case, was probably the best advice.

Now what I usually do on divorce cases is I conference them with the lawyers in chambers. And they tell me what the facts are all about. And I tell them, based upon what information is given to me, I tell them that this is what I think they should do. I do [not] threaten anybody. I do [not] give anybody an ultimatum. I suggest to them that this is the way they should settle their case. If they want to have a full trial, they [are] entitled to a trial. They [are] entitled to a full hearing. But I do [not] threaten anybody, I do [not] force anybody to settle. If they want to have a case tried, they can try the case.

Now you probably after -- you probably spoke to Mr. Corcoran after I had a conference in chambers with both lawyers. You probably spoke with him and he probably said to you in his opinion, based upon the circumstances of the case, based upon the conference that we had with Judge Torack, you should settle the case X, Y, Z, the way you settled it.

Then you came back into this courtroom probably and you testified under oath that you understood the settlement; you entered into it voluntarily; you were satisfied that it was acceptable and fair; that you were satisfied with the services of your attorney; that you were not suffering from any mental or physical impairment that affected your judgment; and that you knew you had a right to trial, but you wanted to settle the case. So you testified probably in open court to that [e]ffect.

Now once you say that, that [is] done. The case is settled.

I did [not] hear the case. I do [not] have any impressions. I do [not] have any recollection as to what happened. I do [not] have any bias or prejudice in this case. This is a completely different situation. This is a grandparent visitation application. There [is] no reason why I have to recuse and I [am] not going to recuse.

. . . .

I can sit on this case fairly and impartially, hear your evidence, hear their evidence, apply the applicable law[,] and make a decision. And that [is] what I [am] going to do.

In acknowledging the judge's ruling on the motion, plaintiff further stated: "As I said in my letter to you, I was told that by the attorney[,] and I said this today in court here in front of you that I do [not] believe that you would have made that statement, okay?"

Applications to disqualify a judge from presiding over a matter may be brought by "[a]ny party, on motion made to the judge before trial or argument and stating the reasons therefor." R. 1:12-2. The motion, while not limited, may be based on one or more of the grounds stated in Rule 1:12-1. Under the latter Rule, "[t]he judge of any court shall be disqualified on the court's own motion and shall not sit in any matter . . . when there is any other reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so." R. 1:12-1(f). If the motion is not supported by facts appearing of record and not judicially noticeable, the motion must be supported by "affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify." R. 1:6-6.

 
Judge Torack properly denied the motion for recusal. The motion was based upon an allegation that he had indirectly threatened plaintiff during plaintiff's divorce case, that is, unless plaintiff settled the case, he might lose everything. The allegation is not made on "personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify." R. 1:6-6. The alleged statement of the attorney is hearsay, and not admissible on the motion. N.J.R.E. 801(c). In addition to the procedural deficiencies concerning the motion, plaintiff stated that he himself did not believe the alleged statement, and as such, we conclude that the statement did not constitute a basis "which might reasonably lead . . . the parties to believe" that Judge Torack's presiding over the plaintiff's prior divorce proceeding would "preclude a fair and unbiased hearing and judgment" in the matter. R. 1:12-1(f).

Affirmed.

"In lieu of the affidavit . . . the affiant may submit . . . [a] certification which shall be dated and immediately precede the affiant's signature: 'I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment.'" R. 1:4-4(b).

(continued)

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A-6661-04T2

March 24, 2006