L.C. v. V.C.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0862-11T1

L.C.,1

Plaintiff-Appellant,

v.

V.C.,

Defendant-Respondent.

__________________________________

January 28, 2013

 

Submitted January 14, 2013 Decided

 

Before Judges Sabatino and Fasciale.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1542-06.

 

L.S., appellant pro se.

 

Einhorn, Harris, Ascher, Barbarito & Frost, P.C., attorneys for respondent (Stephen P. Haller and Jennie L. Osborne, on the brief).

PER CURIAM

Pro se plaintiff L.S. appeals from an October 4, 2011 order appointing a guardian ad litem (GAL), and a February 17, 2011 order denying plaintiff's motion to recuse the judge and disqualify the parenting coordinator (PC). We affirm in part, reverse in part, and remand regarding the application to disqualify the PC.

We described the facts of this case in L.C. v. V.C., No. A-6182-10 (App. Div. July 23), certif. denied, 212 N.J. 455 (2012). There, we stated:

The case has a troubling history. The parties were married in 1999, separated in 2005, and divorced in 2007. They have two daughters, now ages twelve and [ten, respectively], and one son, age [eight]. Since the parties' separation, the older daughter has adamantly rejected having a relationship with her father. The other two children have more normal relationships with both parents in the midst of a highly disputatious divorce, but they, too, have exhibited negative effects of the hostility between their parents.

 

The father has sought to rehabilitate his relationship with the older daughter through therapy and reunification strategies, but those efforts have been unsuccessful so far. The mother states that she wants her children to have better relationships with their father, but she is immutably distrustful of him, and anyone else who does not view the situation as she does and therefore has sided with him in plaintiff's eyes. Plaintiff accuses [defendant] of domestic violence against her and reports judicial support of that accusation, although a final adjudication of domestic violence was never entered. A temporary restraining order that she obtained at the time of their separation was dismissed after a contested hearing.

 

[Id. at 2-4.]

 

In early 2009, a Family Part judge appointed a PC,2 and in March 2009, the PC entered into a "Mediation Agreement/Parent Coordinator" agreement with both parties. On October 4, 2011, the judge ordered the appointment of a GAL, and he apportioned her fees. On October 22, 2011, plaintiff filed a notice of appeal from the October 4, 2011 order. She also filed a motion with us to stay the October 4 order, which we denied on November 7, 2011.3 In November 2011, plaintiff moved before us seeking to enjoin the GAL from performing her duties, which we denied.

In December 2011, plaintiff requested a limited remand to permit her to file the recusal and disqualification motions, and to limit the PC's powers. On January 9, 2012, we granted plaintiff's motion "for the limited purpose of enabling [plaintiff] to file motions to recuse the trial judge and to disqualify the [PC]." The order also stated that if the judge grants recusal, the successor judge shall rule on the PC's disqualification; if recusal is denied, the judge may rule on the PC. Plaintiff then filed motions to recuse the judge and to disqualify the PC, alleging various conflicts of interest.

On February 17, 2012, the judge denied plaintiff's motion contending that he was obligated to recuse himself because of an alleged conflict. As the judge noted, the alleged conflict was not substantiated despite efforts by plaintiff to have it investigated.4 After he denied her applications, the judge recused himself sua sponte because plaintiff's application itself made it impossible for the judge to continue to preside over the case fairly and impartially. The judge then recommended to the Assignment Judge that she remove the case from Essex County. The judge also denied the application to disqualify the PC.

On February 28, 2012, the case was transferred to a different county. In March 2012, the GAL resigned from her position while noting that plaintiff had "effectively and continuously raised issues which now include[d] false and unfounded allegations against me."

On appeal, plaintiff argues primarily that the judge erred by (1) ruling on the PC's disqualification when he "knew" that he would recuse himself; (2) abdicating his decision-making authority to the PC; (3) appointing the GAL when the court lacked jurisdiction; and (4) not disqualifying the PC who is biased against plaintiff and is inappropriately serving "dual roles."

At the outset, we reject plaintiff's contention that the judge abdicated his decision-making authority. We previously ruled that the judge did not abdicate his decision-making authority to the PC. L.C., supra, slip op. at 12.5 Nevertheless, we note that the judge had explained, on more than one occasion, that the PC's function is to implement the judge's orders and follow his directions. We therefore re-affirm our prior determination that there was no improper delegation to the PC. And, we conclude plaintiff's argument that the judge erred in appointing the GAL is now rendered moot in light of the GAL's resignation.6 We focus, instead, on her assertion that the judge erred by denying her motion to disqualify the PC after the judge elected to recuse himself, in violation of our January 9, 2012 order.

Our standard of review is limited. "The Family Court possesses broad equitable powers to accomplish substantial justice." Finger v. Zenn, 335 N.J. Super. 438, 446 (App. Div. 2000), certif. denied, 167 N.J. 633 (2001). The Appellate Division "accord[s] great deference to discretionary decisions of Family Part judges." Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (citing Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009)). This court, however, will not defer to a family court's decision where the court abused its discretion. See, e.g., State ex rel. J.A., 195 N.J. 324, 340 (2008). "An abuse of discretion 'arises when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Milne, supra, 428 N.J. Super. at 197 (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)). The trial judge's legal decisions are subject to this court's plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007).

"Any party, on motion made to the judge . . . stating the reasons therefor[e], may seek that judge's disqualification." Rule 1:12.2. "A motion for recusal may be granted for any 'reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so.'" Panitch v. Panitch, 339 N.J. Super. 63, 66 (App. Div. 2001) (quoting R. 1:12-1(f)). "The disposition of the motion is, at least in the first instance, entrusted to the 'sound discretion' of the trial judge whose recusal is sought." Ibid. Further, "[t]he challenged judge who hears the motion should clearly set forth the objective and subjective bases for the ultimate decision." Id. at 67 (internal quotation marks omitted). "'Litigants ought not have to face a judge where there is reasonable question of impartiality.'" Ibid. (quoting Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 162 (3d Cir. 1993)). Last, Rule 1:12-1(g) permits sua sponte recusal "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."

At the February 17, 2012 hearing for plaintiff's motion to recuse himself and disqualify the PC, the judge first explained that he was denying her motion because plaintiff's allegations of conflict were unsubstantiated. Thereafter, he explained that the PC's function is to implement orders and follow directions, and that he saw "no reason why" the PC should be removed.

We agree with plaintiff that by recusing himself sua sponte while at the same proceeding denying her motion to disqualify the PC, the judge did not sufficiently adhere to the sequencing mandated by our January 2012 order. "[A] trial judge has the responsibility to comply with pronouncements of an appellate court." Tomaino v. Burman, 364 N.J. Super. 224, 232 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004). Our order required the judge to have a different judge rule on plaintiff's motion to disqualify the PC if he recused himself. As such, we remand for a new judge to rule on plaintiff's motion to disqualify the PC.

After careful consideration of the record, we are satisfied that plaintiff's remaining arguments lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

We reverse that part of the February 17, 2011 order denying plaintiff's motion to disqualify the PC, and remand the matter for a different judge to rule on the motion. We re-affirm our prior determination that that there was no improper delegation to the PC. We do not retain jurisdiction.

1 Pursuant to Rule 1:38-3(d), we use initials to maintain the confidentiality of the Family Part records. Currently, plaintiff uses her maiden name; her initials are now L.S.

2 At some point before November 2010, this judge recused himself and another judge succeeded him (hereinafter referred to as "the judge").

3 On November 21, 2011, plaintiff filed an application for permission to file an emergent motion. On the same day, we denied the application.

4 The record contains correspondence from the Assignment Judge indicating that plaintiff s allegations of impropriety were never substantiated. There is no competent proof in the record reflecting otherwise.

5 Thus, the judge is bound by the law of the case doctrine and has not erred. "The law of the case doctrine teaches us that a legal decision made in a particular matter 'should be respected by all other lower or equal courts during the pendency of that case.'" Lombardi v. Masso, 207 N.J. 517, 538 (2011) (quoting Lanzet v. Greenberg, 126 N.J. 168, 192 (1991)).

6 Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 330 (1996).