PAMELA J. MACEK v. HENRY PEISCH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

PAMELA J. MACEK,

Plaintiff-Respondent,

v.

HENRY PEISCH,

Defendant-Appellant.

_____________________________________

September 15, 2016

Argued May 9, 2016 Decided

Before Judges O'Connor & Suter.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-896-10.

Adrian E. Bermudez argued the cause for appellant.

Respondent has not filed a brief.

PER CURIAM

Henry Peisch (father) appeals the denial of a motion for reconsideration of a January 7, 2015 Family Division order that found he voluntarily waived the appointment of counsel for a support enforcement hearing. We reverse.

I.

Pamela J. Macek (mother) and father divorced in 2011. Together they have seven children, two of whom are minors. Father is required to pay mother $581.40 per week in spousal support, $42 per week in child support, and $60 per week in arrears. By January 7, 2015, father's support arrears were $69,433.49, with the last payment of $7 having been made in August 2014.

On January 7, 2015, an enforcement hearing was held before a Family Division judge when father surrendered himself on an arrest warrant issued on account of his accruing support arrears. Father's court-appointed attorney was present at the hearing, but father requested his attorney be relieved of his appointment. Father claimed the attorney did "not do the things that [father] thought were reasonable to do" and acknowledged that he had threatened to file a grievance against the attorney.

This was the third attorney appointed for father by the Family Division for enforcement proceedings. See Pasqua v. Council, 186 N.J. 127, 146 (2006) (holding that "the appointment of counsel to assist parents found to be indigent and facing incarceration at . . . support enforcement hearings" was mandated by the federal and New Jersey constitutions). Father filed a malpractice action1 against the two prior appointed attorneys, which precluded their representation of him.

The Family Division judge found that father was aware, pursuant to Administrative Directive #2-14 (Apr. 14, 2014), that if for "whatever reason [counsel] cannot be appointed, incarceration is not an available remedy." The judge noted that "with every attorney we have appointed for [father, he] . . . either threatened [to sue] them, or . . . filed a notice of claim." Because father knew he had been found indigent and also knew he could not be incarcerated without counsel, father was "using the appointed counsel as a ploy to [either gain] time or delay this proceeding." The court concluded "[i]f I appoint another counsel [you are] just [going to] fire or threaten to fire that counsel, and then this is going to keep going on and on."

At that time, father was represented on a pro bono basis on appellate issues by an attorney, who, according to the court, is "inherently familiar with this matter since he has filed the appeals." The court was convinced father was "firing or threatening [to] sue attorneys . . . intentionally." The court found that "the obligor has effectively, based on his behavior . . . waived his right to counsel." He ordered that father could be represented by his appeals counsel or another attorney of his choosing at any ability to pay hearing.

Father's motion for reconsideration of the January 7, 2015 order was denied. The court found it had "appointed attorney after attorney for the [father], yet he repeatedly chose to reject those attorneys for his own reasons, reasons which he has refused to disclose to the court." The court found that father was using the law "as a mechanism for avoiding placement in the work release program, specifically by frustrating the court's attempts to appoint counsel . . . in such a way that it is practically impossible for [father] to be represented." Finding he had not met his burden for reconsideration, the court declined to appoint any further attorneys for father.2

Since this appeal was filed in April 2015, further enforcement proceedings in the Family Division have been held, in which father has been found non-indigent. In December 2015, the court found father had the ability to work, and to pay and hire counsel. Because father acknowledged using the resources of his mother for support, he was found to "have the ability to utilize those resources for the payment of [his] arrears." At a March 2016 hearing, father was found non-indigent because he was able to work and had a vehicle, enabling him to use the vehicle to pay the $3000 lump sum previously ordered.

Father appeals the April 6, 2015 reconsideration order raising the following issue:3

FINDING THAT AN INDIGENT OBLIGOR "EFFECTIVELY WAIVED COUNSEL" DUE TO FILING A MERITORIOUS MALPRACTICE LAWSUIT AGAINST PRIOR APPOINTED COUNSEL IS ERROR AND AN ABUSE OF DISCRETION.

In May 2016, we invited the parties to submit a letter brief addressing whether the appeal was moot "in light of the fact that, since [father] filed his appeal, the trial court has determined [he] is not indigent and thus is no longer eligible to have appointed counsel represent him." Mother responded and father did not.

II.

We accord "great deference to discretionary decisions of Family Part judges[,]" Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012), in recognition of the "family courts' special jurisdiction and expertise in family matters[.]" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J.328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J.394, 413 (1998)). "[F]indings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare, supra, 154 N.J. at 411-12 (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). 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. Twp. Comm. of Manalapan, 140 N.J.366, 378 (1995).

The doctrine of mootness emanates from the judiciary's role as an independent branch of government that acts only when a genuine dispute is before it. An issue is considered moot when our decision "can have no practical effect on the existing controversy." Greenfield v. N.J. Dep't of Corr., 382 N.J. Super.254, 258 (App. Div. 2006). "We generally do not render advisory decisions, for '[o]rdinarily, our interest in preserving judicial resources dictates that we not attempt to resolve legal issues in the abstract.'" State v. Davila, 443 N.J. Super. 577, 584 (App. Div. 2015) (quoting Zirger v. Gen. Accident Ins. Co., 144 N.J.327, 330 (1996) (other citations omitted)). In limited instances, courts will address the merits of appeals that have become moot, electing to do so "where the underlying issue is one of substantial importance, likely to reoccur but capable of evading review." Zirger, supra, 144 N.J.at 330.

We do not find moot the issue raised about father's waiver of court-appointed counsel. Although it has no relevance to enforcement at the present time because father has been found not to be indigent, should there be a finding at some future point that father has become indigent, the issue of waiver would be revisited. Thus, we cannot say the issue can have no practical effect in the enforcement of father's support obligation.

The trial court clearly believed that father sought to manipulate the system by claiming the need for assigned counsel and then rejecting every attorney assigned to his case by suing or threatening to sue them. The trial court relied on several out-of-state cases4in holding father had "effectively waived his right to counsel" through this tactic.

As we noted in State v. McCombs, 81 N.J.373, 378 (1979) a "defendant cannot have it both ways that is, he cannot refuse to represent himself but at the same time reject the services of assigned counsel." Furthermore, defendant's conduct can limit the exercise of certain rights. In Rosenblum v. Borough of Closter, 333 N.J. Super.385, 390, 397 (App. Div. 2000), we held due process is not impaired by enjoining litigation in certain circumstances. Where a litigant repeatedly filed frivolous litigation, the assignment judge can screen the filing of new lawsuits if traditional sanctions have not worked and the new complaints have no merit. Similarly, in Parish v. Parish, 412 N.J. Super.39, 48 (App. Div. 2010), we observed that courts have the inherent authority, if not the obligation, to control the filing of frivolous motions and to curtail "harassing and vexatious litigation." In State v. Morton, 155 N.J.383, 434 (1998), the Court noted that "[a] criminal defendant can waive constitutional rights, including the right to counsel." (citations omitted).

All this said, however, in examining the record here, we find the court's determination that father waived the appointment of counsel by filing lawsuits against successively appointed counsel was not adequately supported on this record. The court did not have a copy of the malpractice complaint or the affidavit of merit. It did not determine anything about the status of the litigation or explore the nature or validity of the underlying claims when it determined father waived his right to appointed counsel by filing the lawsuits. The trial judge concluded that father's lawsuit was intended to avoid his own incarceration by, in effect, depriving himself of counsel, except for the pro bono counsel that he kept "in reserve" for appeals such as this. The problem is the waiver determination was made on very limited information. We cannot say the evidence supported a knowing and voluntary waiver of counsel. State v. Crisafi, 128 N.J.499, 509 (1992) ("It is for the court to determine whether an accused has knowingly and intelligently waived [the right to counsel] and to establish the waiver on the record").

Therefore, we are constrained to reverse the April 2015 order of reconsideration to the extent that father was found to have waived his right to the court appointment of counsel. If in the future, father is found to be indigent, the court can conduct a hearing to determine whether father has waived the appointment of assigned counsel, whether there is a basis under Rosenblumto limit new litigation or to appoint counsel for the enforcement proceeding. There is no reason to conduct that inquiry now, however, given the finding father is not indigent and no longer entitled to appointed counsel.

Afterreviewing the record and the applicable legal principles, we conclude that father's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Reversed.

1 Father did not provide any documents relating to the pending malpractice litigation. The record is unclear whether the malpractice case involved other plaintiffs.

2 In June 2014, when an enforcement hearing was held, the court ordered father to pay a lump sum of $3000, which reflected the value of a vehicle father had been driving, but did not order coercive incarceration. We have not been provided with a copy of the transcript of this hearing. Then, in July 2014, another Family Division judge found father lacked credibility when he claimed he was indigent, which meant that he was no longer entitled to appointed counsel.

3 There are two other pending appeals. In Macek v. Peisch, No. A-3291-15 (filed Apr. 8, 2016), father appeals a March 24, 2016 order. In Macek v. Peisch, No. A-5502-15 (filed Aug. 18, 2016), father appeals an August 12, 2016 order.

4 United States v. Kelm, 827 F.2d 1319 (9th Cir. 1987); State v. Carruthers, 35 S.W.3d 516 (Tenn. 2000); Commonwealth v. Babb, 625 N.E.2d 544 (Mass. 1994); King v. Superior Court, 107 Cal. App. 4th 929 (2003).