PHILLIP CANNING v. TONI ANN CANNING

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5388-05T35388-05T3

PHILLIP CANNING,

Plaintiff-Appellant,

v.

TONI ANN CANNING,

Defendant-Respondent.

________________________________________________________________

 

Submitted May 23, 2007 - Decided June 15, 2007

Before Judges Parker and Messano.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-2757-02.

Lawrence A. Leven, attorney for appellant.

Respondent did not file a brief.

PER CURIAM

Plaintiff Phillip Canning appeals a series of post-judgment orders culminating in the June 1, 2006 order directing him to pay $3988.05 to his ex-wife, defendant Toni Ann Canning. After carefully considering the record and the legal arguments raised, we reverse and remand the matter for further proceedings consistent with this opinion.

The parties were divorced on December 13, 2004, after more than twelve years of marriage and having had two children together, Alexa, born on June 16, 1993, and Michael, born on August 7, 1997. On February 8, 2005, they entered into a property settlement agreement which was incorporated into their dual judgment of divorce. In pertinent part, the agreement required defendant, in whose name various credit card accounts were established, to provide plaintiff with a full accounting of the outstanding balances on the credit cards within thirty days; thereafter, plaintiff would pay defendant fifty percent of all balances due either in one lump sum, or in equal monthly installments over the next six months.

Apparently the accounting never took place and defendant was subjected to at least one collection action brought by one of the creditors. On July 26, 2005, defendant appeared ex parte and pro se before the motion judge applying for an order to show cause to enforce litigant's rights. Although the defendant's application is not part of the record, we gather from the motion judge's amplification of reasons filed pursuant to R. 2:5-1(b) that defendant raised "monetary" issues in her request. It is undisputed that defendant never served her initial papers on plaintiff prior to the court's entry of its order.

In that July 26, 2005, order, the motion judge converted defendant application for an order to show cause into a "motion to enforce litigant's rights" returnable on September 8, 2005. The order further provided that defendant was to serve plaintiff personally or by certified mail no later than August 1, 2005. On July 29, defendant sent a letter to the motion judge directly. In it, she requested that he "address all other agreements in the Amended Dual Judgment of Divorce" that plaintiff "has not responded to."

On September 9, 2005, defendant appeared in court but plaintiff did not. The judge inquired of defendant whether she served the July 26 order upon plaintiff. Defendant apparently displayed the certified mail return receipts and indicated she recognized plaintiff's signature on them. She also claimed to have spoken to plaintiff about the upcoming court date. Convinced plaintiff had been properly served, the judge entered an order which found plaintiff "in violation of litigant's rights" and also 1) fixed plaintiff's obligation for the credit card debts at $8500; 2) ordered probation to immediately "take an additional $250 per week from [plaintiff's] wages and forward [those monies] to defendant until the $8500 is paid off"; 3) ordered plaintiff to pay an additional $300 "as his share of extra expenses"; 4) ordered plaintiff to furnish defendant with proof of life insurance no later than October 21, 2005, failing which defendant could obtain life insurance and any premiums would be deducted from plaintiff's wages; and 5) ordered plaintiff to provide all necessary information from his employer regarding the formulation of the Qualified Domestic Relations Order (QDRO) contemplated in the judgment of divorce.

Plaintiff moved for reconsideration seeking to vacate the September 9, 2005 order, the return of any amounts that had been garnished from his salary since the order was entered, and counsel fees. In his certification, plaintiff contended that he never received notice of the return date because defendant served him at his mother's address where he no longer resided, that his mother signed for the certified mail and did not tell him, and defendant never orally told him about the date despite having seen him on multiple occasions when he visited with his children. In addition, he contested many of defendant's claims regarding the credit card debts, failure to provide the life insurance information, and failure to produce the QDRO.

Plaintiff's motion was made returnable on December 20, 2005, and he did not seek oral argument unless the motion was opposed. Defendant did not file any opposition, but she appeared pro se on the return date of the motion as did plaintiff and his counsel. The motion judge -- who noted at one point his "difficulty believing both of these people" -- was obviously frustrated in trying to determine whether defendant had actually served plaintiff with her prior motion.

The judge determined that plaintiff knew about the prior court date but ignored it. Turning to the substance of plaintiff's motion, the judge advised plaintiff's counsel that he would employ the following process to decide the disputed issues between the parties:

[The Court]: I just got a great idea. It's going to take you out of the mix and me out of the mix. I'm going to appoint an accountant . . . . They're both going to pay and . . . the Court will assess who should [] reimburse at the end . . . . I'm not going to go and play nursemaid and neither should you . . . . I'm not going to have a hearing on whether you got the information, didn't get any of the information, he paid, she paid. It's ridiculous.

He noted, "The accountant will be my deputy judge. And we get rid of this nonsense once and for all." The judge concluded the hearing by noting,

I'll have [the plaintiff and defendant] back here at the end of January, and that will remove both of us from the mix. The accountant's report will be absolutely convincing to the Court because it will be predicated upon documents. This is a paper trial. And that's what I'm going to do.

The judge entered an order setting forth the parties' obligation to cooperate with the accountant, share in the cost of his fees, and setting a February 22, 2006 return date for plaintiff's motion.

On March 7, 2006, the parties were before the judge again. Plaintiff's counsel indicated that he had forwarded all his client's financial data to the accountant, but the accountant now wanted a retainer of $3500. Defendant, appearing pro se, also indicated she had forwarded her financial data to the accountant and was only able to afford a payment of $200 toward his retainer. Calling the case "ludicrous," the judge noted, "[t]his court is not going to put anymore energy into trying to resolve ridiculous one-upmanship." The judge entered another order appointing an attorney, Karen Meislik, to review the submissions of both parties regarding the various financial obligations imposed by the judgment of divorce and to prepare a report no later than April 26, 2006, the new return date for plaintiff's motion. The judge specifically advised defendant to furnish plaintiff's counsel with copies of all financial data she submitted to Meislik.

On April 7, 2006, plaintiff's counsel wrote to the judge.

Despite the fact that Your Honor informed [defendant] to submit her position to me with documentation, she has not complied. [Plaintiff's] motion was filed in September 2005. [Defendant] has not responded. She has never submitted certifications, bills, documents, cancelled checks or even a letter stating her position or responding to [plaintiff's] motion . . . .

[Plaintiff] has also made offers to resolve the motion by consent order. Those offers have been ignored. Under these circumstances I am asking the court to decide the motion on the papers.

I would appreciate it if Your Honor would inform me how the court wishes to proceed prior to the third scheduled appearance for April 26, 2006.

The record does not reveal any response from the judge. The scheduled court appearance was postponed until May 22. On May 2, 2006, Meislik forwarded her report to the judge and the parties.

On May 11, 2006, the judge entered an order granting plaintiff's counsel's request to decide the motion on the papers. The order further provided, "Based upon the report of Ms. Meislik . . . the court finds that pursuant to the terms of the property settlement agreement . . . plaintiff owes defendant [$]3988.05." The judge ordered plaintiff and defendant to each pay one-half of Meislik's $2677.25 bill for services rendered, ordered probation to garnish plaintiff's wages at the rate of $250 per week, and denied plaintiff's request for counsel fees.

On May 25, 2006, plaintiff's counsel wrote to the judge. He questioned the cancellation of the May 22 oral argument. He also submitted a proposed order vacating the wage garnishment and permitting a lump-sum payment to the defendant. The judge entered the order, with modification, on June 1, 2006. Plaintiff filed his notice of appeal on June 23, 2006.

In essence, plaintiff argues the process employed by the judge in consideration of his motion was fundamentally flawed because 1) defendant, whose position was clearly considered by the judge, was never required to file or serve any opposition as provided by the Rules of Court, 2) plaintiff was never provided copies of defendant's submissions to Meislik, and 3) plaintiff was denied an opportunity to fairly rebut defendant's assertions. We agree.

Defendant's initial "motion" did not comply with R. 1:6-2(a),(c), and (d) or R. 5:5-4. Nevertheless, once plaintiff filed his motion for relief from the court's initial order, the parties were now properly before the judge for his consideration of the merits of the issues raised. Defendant never filed opposition to the motion. Nevertheless, the judge entertained defendant's argument by requiring both parties to submit financial data to Meislik.

From the judge's comments, we appreciate his frustration in attempting to resolve the latest dispute between plaintiff and defendant, whose divorce had apparently been acrimonious and expensive relative to the modest marital assets. We also recognize that in his discretion, the judge could appropriately relax the strictures of our rules for a pro se litigant to avoid the denial of fundamental due process. See Rubin v. Rubin, 188 N.J. Super. 155, 159 (App. Div. 1982) (holding that pro se matrimonial litigant who failed to abide by court rules was not "entitled to greater rights" than one represented by counsel but was entitled to protections to ensure procedural due process rights).

Here, however, after noting that defendant had failed to serve plaintiff's counsel with any opposition to the motion, the judge ordered her to serve her financial data when she forwarded it to the court-appointed attorney. When plaintiff's counsel advised the court of defendant's continued refusal to cooperate, the judge simply never addressed the problem. As a result, defendant not only failed to comply with the letter of our rules, she flouted the spirit of the fundamental due process they are intended to provide.

We also agree with plaintiff's contention that he was never permitted the opportunity to fairly rebut whatever information defendant supplied to Meislik. R. 5:5-4(a) requires the judge to "ordinarily grant requests for oral argument on substantive and non-routine discovery motions." Plaintiff's motion did not request oral argument unless opposition was filed.

Although defendant never filed opposition, the judge's decision to allow her to submit her financial data to Meislik was its equivalent. And, thereafter, the judge repeatedly indicated he would have the parties return to court after receipt of Meislik's report.

In his post-appeal amplification, the judge notes that plaintiff's counsel's April 7, 2006, letter waived oral argument. While true, that removes the correspondence from its proper context which was that defendant had failed to serve any of her financial data upon plaintiff in contravention of the judge's earlier directive. In essence, the motion remained unopposed, and counsel's letter must be seen in that context.

We have repeatedly noted that oral argument of substantive motions in the Family Part should be the norm, Fillipone v. Lee, 304 N.J. Super. 301 306 (App. Div. 1997), and, when necessary to resolve disputed facts, plenary evidentiary hearings on those motions are required. Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div. 1982). Here, there were significant factual disputes about the credit card debts and the amounts previously paid by the parties on those balances. Instead of resolving those disputes on the record in open court, the judge referred the parties to Meislik whose report essentially contained factual findings and conclusions apparently reached in independent discussions with the litigants.

We believe that process is fundamentally flawed for at least two reasons. First, the judge should not abdicate the obligations imposed upon him by R. 1:7-4(a) to someone outside the judicial system. Second, the litigants must be accorded an opportunity to fully and completely present and rebut any evidence on the merits of the issue before the judge reaches his decision.

We therefore vacate all post-judgment orders previously entered and remand the matter for a plenary hearing on plaintiff's motion. The matter shall be assigned to a different motion judge. That judge shall take whatever steps are necessary to assure the parties have properly exchanged the necessary financial information before the hearing and have otherwise complied with the appropriate Rules of Court.

Reversed and remanded. We do not retain jurisdiction.

 

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A-5388-05T3

June 15, 2007