VINCENT LIJOI v. MARYANN LABIENTO-LIJOI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6733-04T56733-04T5

VINCENT LIJOI,

Plaintiff-Appellant,

v.

MARYANN LABIENTO-LIJOI,

Defendant-Respondent.

________________________

In the Matter of Vincent Lijoi

Charged with Contempt of Court

_________________________________________________

 

Submitted August 29, 2006 - Decided September 6, 2006

Before Judges Payne and Gilroy.

On appeal from Superior Court of New

Jersey, Chancery Division - Family Part,

Middlesex County Docket No. FM-12-1573-05.

Lesnevich & Marzano-Lesnevich, attorneys

for appellant (Madeline Marzano-Lesnevich

of counsel, Sarah J. Tremml, on the brief).

Respondent has not filed a brief.

PER CURIAM

Vincent Lijoi (husband), plaintiff in divorce proceedings instituted on February 3, 2005 against defendant Maryann Labiento-Lijoi (wife), appeals from a sentence of fifteen days' incarceration, imposed following an adjudication of contempt, to be served in the Middlesex County Labor Assistance Program. On appeal, Lijoi argues that the imposition of a custodial sentence constituted an abuse of the court's discretion. We agree and vacate the sentence.

Husband and wife were married on October 15, 1988, had two children born on November 14, 1989 and October 17, 1992, respectively, and separated on January 26, 2005 after wife obtained a temporary restraining order that required husband to vacate the marital residence. However, wife's application for final restraints was withdrawn on February 3, 2005 following entry of a consent order that limited contact between the parties. Thereafter, a dispute arose over the disposition of husband's 1965 Pontiac LeMans, an alleged premarital asset that remained at the marital residence after husband's departure. Wife had the car towed from there to an empty lot and affixed a for sale sign on it that listed husband's cell phone number. Verbal threats by husband uttered after he commenced receiving responses to wife's notice led to the entry of a second temporary restraining order on March 21, 2005. Following a hearing on April 21, 2005, the February consent order was amended to impose further restraints on contact between the parties. The order further provided that husband

shall forthwith turn over the title to his 1965 Pontiac LeMans [to] his attorney who shall hold same in trust. Neither party shall dispose of any assets regardless of whether they are subject to equitable distribution.

In an undated motion to enforce litigant's rights made returnable on June 24, 2005, wife claimed that she had failed to receive child support payments, and she alleged noncompliance with the court's April 21 order, stating in relevant part:

[Plaintiff] order[ed] to turn over title of vehicle as of 4/21 and to be held in trust. Counsel and defendant have not complied, vehicle sold against judge's direct order.

Following receipt of the motion, husband cross-moved for an order dismissing wife's motion as moot, ordering parenting time with the couple's children, and seeking other relief.

A hearing on the parties' motions occurred on July 22, 2005. After preliminary argument with respect to wife's requests for child support and other payments and the receipt of testimony that suggested that all allegedly past-due amounts had been paid by husband, the court's attention turned to the car. At that time, husband's attorney acknowledged husband's violation of the court's order and stated that the car had been sold for $1,000 to a person named David Lambert and that the money had been placed in the attorney's trust account. The attorney stated further that she had promptly informed the court in writing of what had occurred. The following colloquy between the court and husband then took place:

THE COURT: "I, Vincent Lijoi, sold my 1965 Pontiac convertible to David Lambert of 50 Gulino Place, Carteret, for the sum of $1,000 as is." Okay, and why did you do that?

MR. LIJOI: Because I couldn't keep the car where it was. If we were - I don't know if we ever knew the whole story about this car.

THE COURT: No, no, no, no, why did you do that?

MR. LIJOI: Why did I sell it?

THE COURT: There's a court order telling you to turn the title over and not to sell any assets. Why did you sell it?

MR. LIJOI: Because I couldn't take two parking spaces up in my new apartment where I am.

THE COURT: Why didn't you ask your lawyer to make an application to the Court, say a -

MR. LIJOI: I have not gone through this, before. I have no idea about these things.

THE COURT: Did you not understand this order?

MR. LIJOI: I said I understood it.

THE COURT: Right.

MR. LIJOI: And the car was sold two or three days after we were here. Somebody knocked on my door and said are you looking to sell that car, and I really wasn't but it was becoming a burden.

* * *

THE COURT: Where was the car when the person knocked on the door?

MR. LIJOI: In front of my apartment, which I am allowed to have one parking space at that apartment and I was only there since March 2nd. Meanwhile I have two cars there and I was juggling -

* * *

MR. LIJOI: If that car was still in my garage . . . at my home . . . this wouldn't have happened.

THE COURT: How much was the car insured for?

MR. LIJOI: $8,000, I believe.

THE COURT: Why did you sell it for $1,000?

MR. LIJOI: Because it was becoming a burden.

After further testimony regarding the value of the car, during which husband detailed why the car was only worth $1,000 and confirmed that he received nothing further as payment in the sale, the court observed that husband had given away a "huge asset." The court then stated:

All right, here's the deal, Mr. Lijoi. You violated the court order blatantly, blatantly, and your wife is not happy about it, nor is this Court. My concern is not your car, my concern, quite frankly, was that there was some - something, some asset set aside, god forbid your children were in dire straits, and I was really thinking about your daughter with regard to tuition. Within three days you practically give away this car. . . . Okay. Well, there's consequences, see, when you do this kind of stuff, when you're ordered not to do something and you do it, there's going to be consequences, do you understand?

The court thereupon declared that husband was under arrest, that it was issuing an order to show cause pursuant to R. 1:10-2 why he should not be held in contempt of court, and set a return date for the order of August 12. Additionally the court set bail at $5,000, with no ten percent option and ordered that husband be handcuffed and placed in custody until bail was procured. Following these actions, the court found that recusal was not necessary, finding "specifically that this Court has the ability to remain objective and unbiased, notwithstanding the fact that Mr. Lijoi's violation at issue is his violation of this court's particular order of April 21st." Husband was thereupon taken into custody, booked, and spent approximately six and one-half hours in the "tank" before his father posted bail by certified check.

A contempt hearing, prosecuted at the court's request by wife's counsel, was conducted on August 19, 2005, at which time husband stipulated that he sold the car in violation of the court's order for $1,000 and that the sum remained in his attorney's trust account. Additionally, testimony was given by David Lambert, the purchaser of the car, who stated without any evidence to the contrary that he was in the business of restoring cars, that he paid $1,000 for the Pontiac, that it needed approximately $15,000 in repairs plus approximately six months of labor, that its maximum worth at the time of sale was only "maybe a few hundred dollars more" than Lambert paid, and that its worth when fully restored was approximately $30,000. At the conclusion of the testimony, the court adjudicated husband to be in contempt of its order of April 21, 2005. It sentenced husband to fifteen days in jail. However, as the result of concern that the sentence might cause husband to lose his job and the income necessary for him to meet his monetary obligations to his wife and children, he permitted the sentence to be served on weekends in the county's labor assistance program. Although husband stated that his work week extended from Tuesday through Saturday, the court refused any further modification of the sentence.

Following our denial of emergent relief, husband appealed from the sentence imposed upon him as constituting an abuse of the court's discretion.

We agree. Although our independent review of the record of this criminal contempt proceeding pursuant to R. 2:10-4 satisfies us that the adjudication of contempt was supported by evidence in the record of husband's willful disobedience of the court's order, a matter that husband does not contest, we find the sentence imposed to have been excessive in light of the nature of the offense, the lack of proven economic harm resulting from husband's conduct, and husband's otherwise unblemished record. City of Bridgeton v. Jones, 228 N.J. Super. 325, 338 (App. Div. 1988); Kerr S.S. Co., Inc. v. Westhoff, 215 N.J. Super. 301, 305 (App. Div 1987). As the Court stated in Matter of Daniels, 118 N.J. 51, cert. denied sub nom. Daniels v. Super. Ct. of N.J., App. Div., 498 U.S. 951, 111 S. Ct. 371, 112 L. Ed. 2d 333 (1990), an appeal from a summary adjudication of contempt pursuant to R. 1:10-1 resulting in a sentence of confinement:

[W]e would add a special note of concern when we deal with imprisonment. There is a difference between money and freedom. No one can deny that the loss of liberty, next to the loss of life, is the greatest deprivation that a free citizen may suffer. In addition, imprisonment poses an extraordinary threat to the person who is imprisoned, both of violence in the prison setting . . . and the unknown and unanticipated reaction of the prisoner . . . .

[Id. at 65.]

In the present case husband, with knowledge of the recent entry of the court's order requiring that he surrender the title to his Pontiac to his attorney, sold the car. However, nothing in the record suggests that the sale was contrary to the ultimate intent of both parties that the asset be liquidated or that the sale occurred out of spite or other improper motive. Husband sold the car because wife would not keep it at the marital residence and he had no place to park it.

Moreover, there is no competent evidence in the record to suggest that the car was worth substantially more than the amount that husband realized by the sale. David Lambert testified that the car was not drivable when he purchased it. His litany of needed major repairs was impressive and uncontradicted, as was his estimate of the car's value in its unrepaired condition.

Finally, this is not a case in which a history of willful noncompliance with the court's orders exists. Although husband may at times have been a "slow-pay," at the time of the hearings that figure in this appeal, he was current in his obligations, despite what appears to have been his relatively modest income. No evidence exists that husband sought to hide assets or to avoid his financial obligations to his wife and children through sale of the car or by other means.

At the conclusion of the July 22 hearing, the judge found that his recusal from the contempt hearing was not necessary as the result of his determination that he had "the ability to remain objective and unbiased, notwithstanding the fact that Mr. Lijoi's violation at issue is his violation of this court's particular order of April 21st." We note that the judge employed a subjective standard in making that appraisal, whereas the Court Rule requires recusal "if the appearance of objectivity requires trial by another judge." R. 1:10-2(c). Although we cannot determine on this record whether bias in fact infected the sentencing proceeding, we find in the circumstances of this case, that imposition of a custodial sentence, "the greatest deprivation a free citizen may suffer," Daniels, supra, 118 N.J. at 65, constituted too severe a punishment for the conduct in which husband engaged, and that a lesser punishment would have sufficed to vindicate the interest of the court and to impress husband with the wrongfulness of his conduct. Matter of Daniels, 219 N.J. Super. 440, 592 (App. Div. 1987), aff'd 118 N.J. 51 (1990).

Because we find that the time spent by husband in custody on August 19, 2005 while awaiting the posting of bail to have constituted a sufficient punishment for husband's contumacious conduct, we vacate the fifteen-day custodial sentence imposed upon him.

 

Husband's sentence has been stayed pending resolution of this appeal.

The trial court deemed the matter to be civil in nature and captioned his sentencing order as such. However, the proceeding, initiated by the court, was clearly criminal, since the penalty of incarceration that was imposed was punitive, thereby vindicating the authority of the court, and of a defined duration, not coercive and terminable upon compliance with the court's directive. Matter of Daniels, 118 N.J. 51, 59-60 (1990); City of Bridgeton v. Jones, 228 N.J. Super. 332 333-34 (App. Div 1988).

(continued)

(continued)

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A-6733-04T5

September 6, 2006