MARY E. WHITE v. CARL J. FLORCZAK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6503-05T16503-05T1

MARY E. WHITE,

Plaintiff-Appellant,

v.

CARL J. FLORCZAK,

Defendant-Respondent.

___________________________________________

 

Submitted May 31, 2007 - Decided

Before Judges Parrillo and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, FM-20-1647-93.

Mary E. White, appellant pro se.

Respondent did not file a brief.

PER CURIAM

Plaintiff appeals from a July 24, 2006 order dismissing her post-judgment motion to enforce litigant's rights pursuant to Rule 1:2-4 because she failed to appear for a scheduled plenary hearing in connection with a Final Judgment of Divorce (FJD) entered on January 24, 1994. We reverse.

The hearing at which plaintiff failed to appear was scheduled for July 24, 2006. It arose out of a May 10, 2006 decision by the Appellate Division in which we remanded plaintiff's appeal of a February 28, 2005 Order to Show Cause (OTSC), seeking restoration of her status as the custodial parent of her teenage son, to the Family Part for further proceedings. White v. Florczak, No. A-4287-04T1 (App. Div. May 10, 2006).

By way of background, plaintiff and defendant were married in April 1987. One child was born of the union in May 1992. The parties divorced in 1994 and were granted joint legal custody, with plaintiff awarded primary physical custody. In May 1995, defendant was granted temporary custody of the child after he found plaintiff distraught and hysterical in her home. She required medical assistance. Defendant's temporary custody was thereafter continued through subsequent orders, and the parties became embroiled in lengthy court proceedings related to defendant's continued custody of their child.

On February 25, 2005, as part of an OTSC why a February 17, 2005 order suspending plaintiff's parenting time should not be continued, the court directed both parties to submit to psychiatric evaluations. The order also provided that the court would convene a plenary hearing to address the issues of plaintiff's parenting time and her application for restoration of physical custody following the submission of the psychiatric evaluation reports. Thereafter, there were applications for emergent relief and appeals to the Appellate Division. In one such appeal, plaintiff appealed the March 4, 2005 order denying her February 28, 2 005 OTSC. On May 10, 2006, we remanded the matter for further proceedings because it was unclear whether the psychiatric evaluations had been performed and, if so, whether the plenary hearing had been conducted. The plenary hearing was then scheduled by the Family Part for July 24, 2006, and there is no dispute that plaintiff was aware of this hearing date.

On July 19, 2006, plaintiff faxed a copy of her filed petition for certification along with a letter explaining why plaintiff believed that she was not required to appear for the July 24, 2006 hearing. Plaintiff did not appear and there is no indication in the record whether defendant appeared. The matter was dismissed. However, the dismissal was not placed on the record. On August 14, 2006, the court placed its reasons on the record:

[The] matter of Mary E. Florczak, now known as Mary White v. Carl J. Florczak, under Docket FV-20-1647-93.

On July the 24th, 2006, this Court entered an order stating the following; one, the plaintiff's motion, which seeks to restore physical custody of Jeff[re]y Florczak, as previously ordered, is hereby dismissed pursuant to New Jersey Rule of Court 1:2-4 because of plaintiff's failure to appear without just excuse.

Previously, the plaintiff Mary Florczak filed a petition seeking physical custody of the minor child Jeffrey Florczak. The matter was heard and the Court scheduled psychological or psychiatric evaluations for both parties prior to a plenary hearing being established to determine who should obtain residential custody of the child.

Considerable amount of time passed. Eventually, Mrs. Florczak filed an appeal. While her appeal had been denied, the Appellate Division observed that the matter was still ongoing and queried as to why it had not been resolved. This Court later discovered that the psychiatric evaluation had never been done. And on its own motion, asked the parties to return to court to discuss what preparations should be made for a plenary hearing and to discuss why the psychiatric evaluations had not been completed.

So pursuant to that and both parties being requested to come to court, the plaintiff Mary White submitted a letter to this Court dated July 24th, 2006 stating the following, directed to the Court.

"Dear Judge McDaniel,

"I have received your letter dated July 21st about a scheduled appearance before Judge McDaniel on Monday. Due to prior discrimination in your courtroom, I do not feel I will get a fair hearing. I will not appear today.

"On June 19th, I faxed you a copy of my notice of petition to the Supreme Court regarding this at-risk child custody matter that had been in appeals court since March 2005. On Friday, July 21st, I submitted my petition for certification to the Supreme Court for review. As per my June 19th fax to you, I am waiting to get a ruling on a change of venue. Even without the change of venue, reassignment would be a better choice."

Based upon that, as I stated, this Court entered the order saying based upon her failure to appear under [Rule] 1:2-5, her petition was dismissed.

The order, while entered on July 24th, 2006, was not placed on the record. And on this date, August 14th, 2006, the Court's decision is therefore placed on the record.

On appeal, as best we can discern from the record, plaintiff contends that she was under no obligation to appear before the Family Part judge for two reasons. First, plaintiff contends because the custody issue was before the Appellate Division and the Supreme Court, the Family Part judge no longer had jurisdiction over the matter. Second, plaintiff contends the Family Part judge was biased and she wanted the matter heard in another venue.

Nothing in the record supports plaintiff's allegation of judicial bias. Moreover, at no time prior to the plenary hearing did plaintiff file a recusal motion or a motion for a change of venue. See R. 1:12-2; R. 4:3-3.

We turn now to plaintiff's contention that the Family Part lacked jurisdiction to conduct the plenary hearing because of the filing of her petition for certification before the Supreme Court. Rule 2:9-1, Control by Appellate Court of Proceedings Pending Appeal or Certification, provides, "the supervision and control of the proceedings on appeal or certification shall be in the appellate court from the time the appeal is taken or the notice of petition for certification filed." Normally, the filing of the petition for certification deprives the Family Part of jurisdiction to act further. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366 (1995). Here, however, the petition for certification appears to have been improvidently filed because the March 4, 2005 order that was the subject of our May 10, 2006 decision was interlocutory.

Nonetheless, we are convinced that imposition of the sanction of dismissal was improper. Rule 1:2-4(a) provides that "[i]f without just excuse . . . no appearance is made . . . on the return of a motion . . . or any other proceeding scheduled by the court . . . the court may order . . . the dismissal of the complaint." In Essex County Div. of Welfare v. J.S., 205 N.J. Super. 244 (App. Div. 1985), we held the dismissal sanction pursuant to Rule 1:2-4(a) is unavailable where the affirmative interests of others, particularly children, are affected by the action. J.S., supra, 205 N.J. Super. at 247.

The issues here involved the question of custody of the minor child, the subject of prolonged litigation for the past twelve years. The minor child is now fifteen. While plaintiff's failure to appear may have been in error, she had a good faith reason, at least as to the pendency of her petition for certification, not to appear, and she gave timely notice to the court.

Beyond reading plaintiff's July 19, 2006 letter into the record on August 14, 2006, we cannot determine whether the court responded to the letter in such a fashion as to advise plaintiff that her appearance was required on July 24, 2006, irrespective of her petition for certification or objection to the judge presiding over the matter. Under these circumstances, we are of the view that the court mistakenly exercised its discretion when it imposed the extraordinary remedy of dismissal for plaintiff's failure to appear. See Connors v. Sexton Studios, Inc., 270 N.J. Super. 390, 395 (App. Div. 1994) (recognizing that the duty to move cases must not yield to the paramount duty to administer justice and that this indulgence applies to the non-appearance of pro se party).

Reversed and remanded for further proceedings to determine whether psychiatric evaluations have been completed and, if so, a plenary hearing to resolve the outstanding custody dispute. Both parties shall be required to appear at these proceedings.

 
 

Although plaintiff refers twice to a June 19, 2006 fax transmission in her July 24, 2006 letter to the motion judge, we believe that is an error. The notice of petition for certification was not signed by plaintiff until June 28, 2006. Additionally, there is a fax transaction report dated July 19, 2006, showing a three-page fax having been received by the motion judge's chambers. Although there is no indication as to what was faxed, the transaction report immediately precedes the notice of petition for certification, which consists of three pages, in plaintiff's appendix.

Petition for certification was denied. White v. Florczak, 188 N.J. 357 (2006).

(continued)

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A-6503-05T1

July 25, 2007