FRANKLIN THELMO v. ROSE THELMO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0755-07T20755-07T2

FRANKLIN THELMO,

Plaintiff-Appellant,

v.

ROSE THELMO,

Defendant-Respondent.

____________________________________________________

 

Argued November 6, 2008 - Decided

Before Judges Fisher and Baxter.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-14125-86.

Popovitch & Popovitch, attorneys for appellant (Frederick E. Popovitch, on the brief).

Respondent has not filed a brief.

PER CURIAM

After carefully considering the arguments raised in this appeal, we agree with plaintiff Franklin Thelmo's contention that the trial judge should have disqualified himself due to the judge's past employment of and past attorney/client relationship with Franklin's second wife. As a result, we vacate the order that denied Franklin's motion to terminate his alimony obligation to his first wife, defendant Rose Thelmo, and remand for new proceedings before a different judge.

The record reveals that the parties were married in 1963 and that Franklin commenced this divorce action against Rose in 1985. A judgment of divorce was entered in 1989. Although it is claimed that the judgment is no longer available, the parties do not dispute that it obligated Franklin to pay $450 per week in permanent alimony to Rose.

Franklin filed his motion for the termination of alimony on January 26, 2007. He asserted he was 73 years of age and, because of poor health, was no longer able to practice surgery and "had practically no income." Franklin also argued that, due to the passage of time, the parties' financial circumstances at the time of the divorce are presently "unknown and, practically, unknowable," suggesting that, at the very least, a plenary hearing was required to reconstruct the circumstances existing in 1989 and to ascertain whether or to what extent present circumstances are markedly different.

In addition, Franklin asserted that his ability to pay alimony was impacted by his obligations to pay support to his second wife, Evamarie, as well as the "continued educational requirements" imposed on him regarding the children of his second marriage. The record indicates that, at that time this motion was heard, Franklin's obligations to Evamarie had been the subject of litigation before another judge in the same vicinage.

In light of the fact that Evamarie was the trial judge's secretary while he was in private practice, Franklin moved for the judge's disqualification. During the March 9, 2007 proceedings, the trial judge acknowledged that Evamarie "was a secretary of [his] for a number of years many years ago." The judge also recognized that he knew there had been post-judgment disputes in the divorce action between Franklin and Evamarie before another judge:

I've had an occasion to talk to [the judge in the Franklin-Evamarie case] to find out the procedural status of the other case. [That judge] tells me that there's an application or an Order, I guess, by [Evamarie] to enforce certain provisions of an Order against [Franklin] and that that was stayed and the enforcement is being appealed to the Appellate Division. But [the judge] tells me that there is, in fact, no application by [Franklin] for a reduction of his support obligations that is presently pending in that case. So I don't know that there's anything for one case to be joined into the other case.

Rose's attorney argued that the status of the other action rendered premature Franklin's application for disqualification, prompting the trial judge to say:

Yes. I mean, it would seem to me if anybody was going to complain about me being involved in this case, it would be [Rose] because she might fear that I was going to prefer spending the money on [Evamarie] and her children to [her] detriment. . . . I can't see where [Franklin] has any legitimate basis to be concerned about the fact that his other wife was my secretary a number of years ago.

I'm going to deny that request at this time, Mr. Popovitch. You may be right. I mean, as things progress, it may determine at some point in time that there's a trial that involves both of these two matters. And if that takes place, I certainly would agree that I could not handle a case that wherein my former secretary was a party. But at this time, as I see it, she's basically a disinterested stranger to the proceedings between [Franklin and Rose].

. . . .

I acknowledge that there's some tie-in tangentially, but I don't see where my involvement is in any way detrimental to [Franklin]. I think Rose Thelmo may decide she doesn't want me in the case and I'd probably have to honor it if that's the case. But I can't see where [Franklin] can be upset by it. I don't see that there's a legitimate basis for him to be upset.

As a result, the trial judge denied the motion.

In later proceedings regarding the motion to terminate alimony, Franklin produced additional information, which included materials indicating the trial judge had not only employed Evamarie but also represented her sometime in 1991. The judge observed in later proceedings that he did in fact represent Evamarie at that time but he asserted that it had no "impact on this case." Ultimately, the judge refused to conduct an evidentiary hearing regarding the alimony obligation, and he denied Franklin's motion for the termination of his alimony obligation to Rose.

Franklin appealed that final order, requesting that we reverse the denial of disqualification or otherwise reverse the denial of his motion to terminate alimony. We agree that the judge should have disqualified himself.

The judge recognized that he had a prior employment relationship with Evamarie, that he had represented Evamarie in an unrelated matter prior to his appointment to the bench, and that there were other proceedings in the recent past in the same vicinage that related to Franklin's alimony obligation to Evamarie. As the judge acknowledged, he would have disqualified himself if Rose had made the request but he concluded that Franklin's request was insubstantial because, in the judge's view, Franklin would not be prejudiced if it was true that he harbored any alleged bias in favor of Evamarie.

We reject the fine line the judge attempted to draw here. Regardless of whichever litigant may have had cause to be concerned about any alleged partiality the judge may have exhibited in favor of Evamarie, the circumstances presented an appearance of impartiality that required the judge's disqualification. See, e.g., Rivers v. Cox-Rivers, 346 N.J. Super. 418, 421-22 (App. Div. 2002).

We would lastly observe that the most appropriate manner of efficiently and fairly managing these cases requires handling by a single judge. Although we have only gained a cursory understanding of the status of the post-judgment proceedings in the Franklin-Evamarie divorce action, it seems to us that it was highly desirable to have a single judge determine whether or to what extent Franklin had the ability to pay alimony to either of his ex-wives -- a circumstance that stood at the heart of both cases. The continued handling of both cases by different judges in the same vicinage generated inefficiency and the possibility of inconsistent rulings.

We reverse the order of March 9, 2007, which denied the motion to disqualify the judge, and we vacate the order of May 11, 2007, which denied the motion to terminate alimony. The motion to terminate is to be heard anew by the judge who is currently handling any pending proceedings in the Franklin-Evamarie divorce action.

 
We do not retain jurisdiction.

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6

A-0755-07T2

November 19,2008