CATHRYN A. MITCHELL v. RICHARD M. MILLER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CATHRYN A. MITCHELL,

Plaintiff-Appellant,

v.

RICHARD M. MILLER,

Defendant-Respondent.

June 11, 2015

Before Judges Yannotti, Fasciale and Hoffman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-0287-10.

Georgia M. Fraser argued the cause for appellant (The Deni Law Group, L.L.C., attorneys; Cathryn A. Mitchell, on the pro se briefs).

Richard D. Miller, respondent, argued the cause pro se.

PER CURIAM

Plaintiff appeals from the Final Judgment of Divorce ("FJOD") dated March 8, 2013. For the reasons that follow, we affirm.

I.

Plaintiff filed for divorce on September 28, 2009. Although the complaint coincided with allegations of spousal abuse and harassment by both parties, no such allegations were ever substantiated.

Trial was originally scheduled for August 9, 2010, but was adjourned several times, due, in part, to the fact that plaintiff changed attorneys three times before trial, alleging conflicts and misconduct. Trial ultimately commenced on February 22, 2011. The parties entered into a custody agreement resolving custody and parenting time issues on February 28, 2011, which was subsequently incorporated into a judgment dated March 10, 2011.

Trial lasted thirteen days. After the tenth day, March 10, 2011, plaintiff sought an adjournment in order to again change attorneys, claiming misconduct and cognitive problems that had escalated into a conflict with her trial counsel. The trial judge heard argument on March 23, 2011, and noted that she had not witnessed trial counsel exhibit any cognitive difficulties. The judge concluded that substitution of counsel at that late stage would cause undue delay and unfairly prejudice defendant, and denied plaintiff's request.

The trial court nevertheless offered plaintiff three options: to continue with trial counsel as her attorney; to represent herself, as an attorney admitted to practice in New Jersey; or to obtain a new attorney post-trial to prepare a written summation on her behalf. Plaintiff refused to choose one of these options, and the court ordered trial counsel to continue representing plaintiff.

We discern the following facts from the trial record. Plaintiff and defendant are both attorneys practicing in New Jersey. They were married in October 1993, and had two children, born in 1995 and 1999. Defendant also had two emancipated children from a prior marriage. The parties generally lived an affluent lifestyle, including luxury vehicles, international family vacations, frequent Broadway shows, and country club memberships.

The parties worked together for the majority of their marriage, moving together into various positions, including in-house counsel to a sporting goods manufacturer, various law firms throughout New Jersey and New York, and their own law firm. Financial documents indicated that they earned roughly equal salaries throughout, for a combined annual salary ranging from approximately $350,000 to nearly $1,000,000.

According to plaintiff, defendant performed the majority of the work and earned most of the income throughout the marriage. A partner from one firm testified for defendant regarding the parties' terms of employment and work performance. Records provided to that firm as part of its due diligence in hiring plaintiff and defendant reflected that plaintiff had actually billed slightly more in fees than defendant. The partner stated that plaintiff and defendant had been hired as "a team of equals[,]" but that they departed due to concerns over plaintiff's performance, suspect billing, and interpersonal conflicts. Plaintiff admitted to billing for defendant's work at another firm in order to disguise the fact that she had a small practice.

Plaintiff earned $136,044 in income in 2009, while defendant received $149,937. Plaintiff had not filed her 2010 tax returns by the time of trial, and asserted she would net approximately $50,000 in fees for the year. Defendant earned $203,700 in 2010.

In the two weeks before filing the complaint, plaintiff charged over $12,000 to her credit cards in purchases and cash withdrawals. She also diverted $57,000 in fees from the parties' law firm into her personal account. At trial, she explained that she had been financially destitute because defendant had cut her off from their bank accounts and credit cards. Meanwhile, defendant signed plaintiff's name to a check for $17,000. Defendant testified that it had been common practice during the marriage for him to sign plaintiff's name to checks, and that he had used the money to pay joint bills.

Trial testimony concluded on March 29, 2011, followed by oral summations on April 13, 2011. The court issued the FJOD and a written opinion nearly two years later, on March 8, 2013. The judge found plaintiff's actions unreasonable and her testimony suspect, as she often evaded questions by answering "I don't know[,]" or "I can't remember[,]" sometimes even before the attorney had finished asking the question. In pertinent part, the court distributed the marital assets equally, and denied alimony, child support, and fee-shifting.

II.

On appeal, plaintiff argues: (1) the trial court violated plaintiff's right to procedural due process by delaying its ruling and denying her request to substitute counsel; (2) the FJOD is void because the judge was biased and failed to recuse herself; (3) the FJOD is void due to fraud by defendant; (4) the procedural defects, bias, and fraud resulted in unspecified errors regarding alimony, equitable distribution, and child support; (5) the custody agreement is void due to duress; (6) plaintiff was entitled to fee shifting due to defendant's misconduct; and (7) numerous residual arguments not articulated with sufficient clarity for us to discern their import. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) ("An issue not briefed on appeal is deemed waived.").

We give particular deference to "the family courts' special jurisdiction and expertise in family matters," Cesare v. Cesare, 154 N.J. 394, 413 (1998), and disturb the trial court's fact finding only if it is "manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice," Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484, (1974). However, we review issues of law de novo. R.K. v. F.K., 437 N.J. Super. 58, 61 (App. Div. 2014).

As to procedural due process, "a party in a judicial hearing [must] receive 'notice defining the issues and an adequate opportunity to prepare and respond.'" H.E.S. v. J.C.S., 175 N.J. 309, 321 (2003) (quoting McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 559 (1993)). "The hearing must be 'at a meaningful time and in a meaningful manner.'" Avant Indus. Ltd. v. Kelly, 127 N.J. Super. 550, 553 (App. Div. 1974) (quoting Goldberg v. Kelly, 397 U.S. 254, 267, 90 S. Ct. 1011, 1020, 25 L. Ed. 2d 287, 299 (1970)).

Requests for adjournment to substitute counsel are subject to the trial court's discretion. Kosmowski v. Atl. City Med. Ctr., 175 N.J. 568, 575 (2003). "Within ninety . . . days of a scheduled trial date, an attorney may withdraw from a matter only by leave of court, on motion with notice to all parties." R. 5:3-5(d)(2). The trial court must consider

[T]he terms of the written retainer agreement and whether either the attorney or the client has breached the terms of that agreement; the age of the action; the imminence of the scheduled trial; the complexity of the issues; the ability of the client timely to retain substituted counsel; the amount of fees already paid by the client to the attorney; the likelihood that the attorney will receive payment of any balance due under the retainer agreement if the matter is tried; the burden on the attorney if the withdrawal application is not granted; and the prejudice to the client or to any other party.

[Ibid.]

A civil litigant has lesser rights to counsel than criminal defendants. In re Estate of Schifftner, 385 N.J. Super. 37, 44-45 (App. Div.), certif. denied, 188 N.J. 356 (2006). Nevertheless, in analyzing the substitution of counsel at trial we rely upon the framework articulated for criminal cases

What constitutes a reasonable adjournment to permit a defendant to retain counsel of his own choice depends generally upon the surrounding facts and circumstances. One of the leading cases on the subject is United States v. Burton, [ 584 F.2d 485, 490-91 (D.C. Cir. 1978), cert. denied, 439 U.S. 1069, 99 S. Ct. 837, 59 L. Ed. 2d 34 (1979)], where the court commented on the factors to be considered in determining whether a reasonable delay is warranted

Some of the factors to be considered in the balance include the length of the requested delay; whether other continuances have been requested and granted; the balanced convenience or inconvenience to the litigants, witnesses, counsel, and the court; whether the requested delay is for legitimate reasons, or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance; whether the defendant has other competent counsel prepared to try the case, including the consideration of whether the other counsel was retained as lead or associate counsel; whether denying the continuance will result in identifiable prejudice to defendant's case, and if so, whether this prejudice is of a material or substantial nature; the complexity of the case; and other relevant factors which may appear in the context of any particular case.

When a defendant applies for an adjournment to enable him to substitute counsel, the trial court must strike a balance between its inherent and necessary right to control its own calendar and the public's interest in the orderly administration of justice, on the one hand, and the defendant's constitutional right to obtain counsel of his own choice, on the other.

[State v. Furguson, 198 N.J. Super. 395, 402 (App. Div.), certif. denied, 101 N.J. 266 (1985).]

Here, it is apparent that the conflict between plaintiff and her attorney arose from her own accusations of incompetence and mental defects. Those accusations are not supported by the record. The trial had already been subject to significant delays, and, more importantly, was nearly complete. An unexpected two-week delay at that late date would have been unfairly prejudicial to defendant, and would have undermined plaintiff's own case.

Moreover, the trial court presented plaintiff with several options to address her concerns without delaying the trial, and plaintiff refused to select any of the alternatives. Accordingly, we discern no abuse of discretion in the denial of plaintiff's request to adjourn the trial to accommodate plaintiff's substitution of counsel.

We next turn to plaintiff's argument that the trial judge was biased and erred by not recusing herself from the case. "Any party, on motion made to the judge before trial or argument and stating the reasons therefor, may seek that judge's disqualification." Rule 1:12-2. The motion must be made directly before the judge who is to be disqualified. State v. McCabe, 201 N.J. 34, 45 (2010). The motions are "entrusted to the sound discretion of the judge and are subject to review for abuse of discretion." Ibid.

Alternatively, a judge "shall be disqualified on the court's own motion and shall not sit in any matter, if the judge" has "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. "However, a judge need not 'withdraw from a case upon a mere suggestion that he [or she] is disqualified unless the alleged cause of recusal is known by him [or her] to exist or is shown to be true in fact.'" Chandok v. Chandok, 406 N.J. Super. 595, 603 (App. Div.) (quoting Panitch v. Panitch, 339 N.J. Super. 63, 66-67 (App. Div. 2001)), certif. denied, 200 N.J. 207 (2009). Actual prejudice on the part of the court need not be proved; any "objectively reasonable" appearance of bias requires disqualification. State v. Marshall, 148 N.J. 89, 279, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

Here, the trial judge read several news columns written by plaintiff and attended seminars given by plaintiff when she was the president of the Princeton Bar Association. Defendant also worked in a different department of the same firm as the judge's husband from 1993 to 1996. Plaintiff alleges various other instances of bias, none of which are supported by relevant citations to the trial record. Additionally, plaintiff was aware of the connections between the judge and the parties before trial, but declined to bring a pre-trial motion for recusal.

The connections between the trial judge and the parties are attenuated, and no objectively reasonable observer could conclude that the proceedings were unfair. Moreover, the judge's written decision is well supported by the record, and there is no evidence of bias. Accordingly, we discern no abuse of discretion in the judge's failure to recuse herself in this case.

Plaintiff's remaining arguments lack sufficient merit to warrant additional discussion in a written opinion. R. 2:11-3(e)(1)(E). As to the two-year delay in rendering the FJOD, while we disapprove of the lengthy delay, we discern no undue prejudice to plaintiff. Contrary to her assertions, and as the present appeal demonstrates, she was not deprived of her ability to seek review. Additionally, we discern nothing in the court's decision to indicate that it relied upon post-trial motion evidence outside of the trial record. Accordingly, the two-year delay did not undermine the validity of the FJOD.

We further note that the trial record simply does not support plaintiff's claims that defendant committed fraud or spousal abuse, that plaintiff was under duress when entering the custody agreement, or that the trial court admitted or relied upon any irrelevant, false, or otherwise inadmissible or untrustworthy evidence. Absent any error supported by citation to the trial record, and absent any substantiated claims of procedural impropriety, plaintiff's remaining arguments fail. Accordingly, we affirm the FJOD substantially for the reasons set forth by the trial court in its thorough seventy-one page written opinion.

Affirmed.