DEBRA STEELE v. MICHAEL STEELE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3737-07T13737-07T1

DEBRA STEELE,

Plaintiff-Respondent,

v.

MICHAEL STEELE,

Defendant-Appellant.

 

 
Submitted October 15, 2009 - Decided

Before Judges Stern and J. N. Harris.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1083-05.

Michael Steele, appellant pro se.

Deborah A. Rose, attorney for respondent.

PER CURIAM

This is the fourth appeal by defendant. It has its genesis in our mandate to the Family Part "to permit defendant to proceed with a Rule 4:50-1 application and for a plenary hearing as to the impact of the Social Security determination and defendant's medical condition on his ability to try the matrimonial action in late October 2005." Defendant seeks review of two determinations that were rendered against him on remand. The first denied defendant's application for a court-ordered medical examination pursuant to Rule 5:3-3(a). The second denied defendant's application for a new trial pursuant to Rule 4:50-1.

We affirm.

I.

Plaintiff and defendant were married on July 2, 1994. Plaintiff filed a complaint for divorce in 2004. The parties prepared for trial, which was initially scheduled for September 2005, but was adjourned until the end of October 2005. The trial commenced on October 28, 2005, and proceeded over a total of three days. Defendant requested yet another adjournment of the trial and sought certain accommodations because of his putative medical condition. The trial was not adjourned.

At the conclusion of the trial on November 1, 2005, a "Dual Judgment of Divorce" was entered. An "Amended Dual Judgment of Divorce" was entered and filed on November 28, 2005; subsequently, a "Second Amended Dual Judgment of Divorce" was entered and filed on December 21, 2005.

Immediately following the trial and entry of the first judgment, on November 9, 2005, defendant filed a motion for reconsideration. The object of the motion was to persuade the trial judge that the divorce judgment should be vacated because the trial should have been adjourned. The motion was denied on December 16, 2005.

Defendant then embarked upon a campaign of motion practice in the Family Part throughout the next several months. After suffering a series of denials of his various motions for reconsideration, defendant filed the first of four notices of appeal on April 3, 2006. In our first opinion among the appeals that followed, we determined that defendant's appeal of the divorce judgment was "far out of time" and "there appears an insufficient basis on which to order a new trial or conclude that a new trial would affect the result."

Shortly before we filed that first opinion, the Office of Disability Adjudication and Review of the Social Security Administration ruled on defendant's then-pending application for a period of disability, disability insurance benefits, and supplemental security income. The Administrative Law Judge concluded, "from October 1, 2004 through November 30, 2005 the claimant was unable to perform his past relevant work." Those findings, rendered eight days before ours, included:

I am satisfied that, during the time the claimant was undergoing interferon treatment from October 1, 2004 through November 30, 2005 the side effects from that medication, such as fatigue and difficulty concentrating, along with his foot fracture, his poorly controlled diabetes and his moderate depression would have reasonably precluded any gainful employment.

Defendant asserts that this pronouncement supports his view that he "was medically incompetent to stand trial due to multiple medical conditions and the side effects of all of the pharmaceutical medications in light of defendant's Social Security award letter."

On May 14, 2007, this court denied a motion for reconsideration "without prejudice to an application to the trial court for a new trial based on the allegedly new medical evidence which is asserted to be relevant to Defendant's condition at the time of trial." The denial of that motion engendered the third notice of appeal, which we will discuss.

Before we decided the first appeal, defendant filed his second notice of appeal on November 21, 2006. The second appeal sought review of an order of August 25, 2006 denying his post-judgment motion for relief of judgment pursuant to Rule 4:50-1(c) and a subsequent motion denying reconsideration. The Family Part declined to decide the merits of defendant's motions because of the existing first appeal. See R. 2:9-1(a). We ultimately dismissed the second appeal as moot, but directed the Family Part to hear and decide any other pending Rule 4:50 application not yet considered within thirty days because of the pending first appeal. Steele v. Steele, No. A-1749-06T1 (App. Div. January 22, 2008).

The already-mentioned third notice of appeal sought review of the Family Part's order of July 6, 2007, which denied on the merits defendant's motion for a new trial. This motion was decided on the papers without an evidentiary hearing, and squarely considered defendant's medical condition in 2005, the Social Security adjudication, and defendant's ability to participate in the matrimonial trial. After reviewing the motion judge's oral and written determinations, including his direct observations made of defendant while overseeing the trial, we remanded the matter to the Family Part "for a plenary hearing as to the impact of the Social Security determination and defendant's condition on his ability to try the matrimonial action in late October 2005." Our rationale was that because the motion for a new trial had been decided without the benefit of any testimony, we felt that defendant should be given an opportunity to convince the Family Part of his inability to try the matrimonial action "with the support of a medical expert or reference to medical literature that there is a relationship between the Social Security Administration findings and the ability to try the case at the time of trial in October 2005."

The instant appeal defendant's fourth stems from the outcome of the remand. Prior to the plenary hearing, defendant moved for the appointment of a medical expert pursuant to Rule 5:5-3(a). At oral argument on the motion, it became clear that defendant wanted a court-ordered psychiatrist to be appointed in order to provide evidence for use in the plenary hearing. He suggested that the New Jersey Division of Youth and Family Services (DYFS) become involved because DYFS required a psychological evaluation of defendant before he could see his children. Defendant argued that economic circumstances made it impossible for him to fund a medical expert, but the monies that were already set aside for defendant's child support obligations might be tapped to pay for the court-appointed witness.

On September 26, 2008, the motion judge denied the application without explanation (at that time) and scheduled the plenary hearing for a few weeks hence. When the judge decided the contested issues at the plenary hearing, she explained that she had denied defendant's request for a court-appointed expert because "the court found no legal basis to grant that particular application."

Finally, on February 4, 2009, after another adjournment, the Family Part judge presided over the plenary hearing. Aside from documents, the only evidence submitted to the court was the testimony of Richard Lorraine, M.D., board certified in internal medicine, and licensed to practice medicine in Pennsylvania. Defendant retained Dr. Lorraine. At the plenary hearing, defendant stated that he offered Dr. Lorraine as a witness to "answer the Appellate [Division's] question about whether or not I was capable of defending myself in the initial hearing." Although not expressly qualified as an expert witness by the court pursuant to N.J.R.E. 702, Dr. Lorraine was, nevertheless, permitted to express opinions regarding the probable side effects of certain pharmaceutical products upon defendant. The doctor, however, conceded that he had never treated defendant and learned of defendant's medical history solely through a review of defendant's medical records. The court labored to understand defendant's proffer of Dr. Lorraine as an expert witness, ultimately concluding that it would give defendant some leeway:

[The court will] allow the witness to testify not in the area necessarily as an expert in any particular area. But as a doctor who reviewed the various reports provided by Mr. Steele so that Mr. Steele what needs to be elicited from this witness is what specific documents were provided to him.

And have the witness testify with regard to his review of those documents and what if anything he was able to ascertain from those documents about your ability to proceed at the time of the trial in 2005. All right. So that [is] the area that we're focusing on.

Ultimately, on cross-examination Dr. Lorraine stated:

Q. And so you mentioned is what was in the realm of possibility that physical and mental effects of treatment could have made him incapable of having of handling affairs. It's also well within the realm of possibility that they didn't, that nothing made him incapable of properly handling his affairs. Is that correct?

A. Yes.

Q. So that there were as far as you see strike that. So you also mention it's within a realm of possibility that he couldn't handle legal proceedings. Do you know what the legal proceedings consisted of?

A. No.

Q. Were you aware that Mr. Steele had been handling his own affairs legal proceedings for a substantial period of time until before trial?

A. Within the documents that I was given there was some indication that Mr. Steele was appearing as his own attorney.

Q. So at that particular time of the trial do you feel that he was more incapable of handling of legal affairs than he was at any other point in time?

A. I'm not sure I understand the question.

Q. You don't know the legal proceedings were, correct?

A. I wouldn't know specifically. I would have a general idea such as in what we are participating today.

Q. And based on your reasonable degree of medical certainty he might have been unable to handle legal proceedings. Is that correct?

A. Yes.

Q. He might have been able to handle legal proceedings. Is that correct?

A. Yes.

Q. But you have no opinion based on your direct testimony, you really have no you've reached no conclusion as to whether Mr. Steele himself specifically Mr. Steele was able to handle his own legal proceedings as any other pro se litigant at the time of trial. Is that correct?

A. From the medical records I cannot reach a definite conclusion.

When defendant attempted to offer Dr. Lorraine's written report into evidence, the judge refused to allow its admission, but, as noted, permitted extensive testimony that duplicated the contents of the report.

At the conclusion of the plenary hearing, the judge rendered an oral opinion finding that defendant had not established that the Social Security determination regarding his disability influenced defendant's ability to try the matrimonial action. She highlighted the failure of defendant's expert to conclude "within a reasonable degree of medical certainty as to what exactly Mr. Steele's capabilities were at the time he tried his matrimonial matter in 2005." The court further mentioned that the most Dr. Lorraine was able to do was opine on "the possibility that any medications that Mr. Steele was taking at the time that his matrimonial matter was tried and the possible side effects could have had some impact upon his ability to try this case." The judge entered an order on the same day, declaring that the matrimonial judgment and all-post judgment orders were to remain in effect. Two weeks later, an order was entered in favor of plaintiff reallocating attorneys fees. This appeal followed by the filing of an amended notice of appeal on February 27, 2009.

II.

We begin by recognizing that our scope of review of all of the proceedings on the remand and their alleged errors involves an examination of discretionary decisions of the Family Part. For example, our scope of review of the Family Part's decision to deny defendant a new trial is narrow. "A motion for a new trial is addressed to the sound discretion of the trial court." Baumann v. Marinaro, 95 N.J. 380, 389 (1984); see also Crawn v. Campo, 136 N.J. 494, 510-12 (1994); Hill v. N.J. Dep't of Corr., 342 N.J. Super. 273, 302 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002). The grant or denial of a motion for a new trial should not be disturbed on appeal unless that discretion has been abused. Hill, supra, 342 N.J. Super. at 302, see also R. 2:10-1 (a court's ruling on a new trial motion shall not be reversed "unless it clearly appears that there was a miscarriage of justice under the law").

In like vein, our standard of review of the findings of fact and, in particular, the credibility determinations of the trial court is "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 148, 161-62 (1964)).

Additionally, our standard of review with respect to the trial court's evidentiary rulings is whether the court abused its discretion. State v. McDougald, 120 N.J. 523, 577-78 (1990); see Hall v. St. Joseph's Hosp., 343 N.J. Super. 88, 107-08 (App. Div. 2001), certif. denied, 171 N.J. 336 (2002); see also State v. Morton, 155 N.J. 383, 453 (1998) ("Traditional rules of appellate review require substantial deference to a trial court's evidentiary rulings."), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).

Lastly, our standard of review regarding the employment of court-appointed experts pursuant to Rule 5:3-3(a) is constrained by the very language of the rule and follows the abuse of discretion standard. See R. 5:3-3(a)("Whenever the court, in its discretion, concludes that disposition of an issue will be assisted by expert opinion. . . ." (emphasis added)).

In making a discretionary decision, a court must present an explanation for its choice sufficient to enable a reviewing court to determine that it did not act thoughtlessly, but instead that it considered the factors relevant to its decision and in fact exercised principled discretion. On the other hand, if our analysis of the issue shows us that the decision was correct on a basis the Family Part did not provide, we may nonetheless affirm in the interest of efficiency and judicial economy. See Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968) ("It is a commonplace of appellate review that if the order of the lower tribunal is valid, the fact that it was predicated upon an incorrect basis will not stand in the way of its affirmance.").

Defendant presented neither good cause nor exceptional circumstances to the Family Part regarding his request for the appointment of a medical or mental health expert. Defendant's rationale for such expert was rooted in his economic circumstances, not the need for an independent examination in order to assist the court. His offer to tap into a fund set aside in this litigation was of no moment because there was no underlying reason for the court to become involved in the process of selecting an expert in the first instance.

In resolving the disputed issues in this case, the Family Part was well advised not to consider the appointment of an independent expert to assist it. Although the Supreme Court has emphasized the important role that court-appointed experts may play in resolving issues of technical complexity before a court, Southern Burlington Cty. NAACP v. Mount Laurel Twp., 92 N.J. 158, 292-93 (1983), it has noted that courts should employ independent experts under Rule 5:3-3 when necessary to resolve specific disagreements between the parties' experts. Bowen v. Bowen, 96 N.J. 36, 53 (1984).

In this case there was no battle between experts. Thus, there was little cause for the court to interject itself where the parties remained free to employ experts of their choosing, but who as of the time of the motion had not yet done so. R. 5:3-3(h). Furthermore, defendant has not demonstrated that he suffered any undue prejudice because, eventually, defendant enjoyed and took advantage of that freedom through his utilization of Dr. Lorraine.

To the extent that defendant claimed an entitlement to the appointment of a court-selected expert on the grounds of economic hardship or indigency, he failed to demonstrate the legal basis for such a claim. Motions for indigency are entirely within the discretion of the court. R. 1:13-2(a). Absent a showing of abuse of discretion, we are constrained to affirm. Here, defendant has not shown that the Family Part abused its discretion.

"Procedural rules are not abrogated or abridged by plaintiff's pro se status." Rosenblum v. Boro. of Closter, 285 N.J. Super. 230, 241 (App. Div. 1995), certif. denied, 146 N.J. 70 (1996). Significantly, if litigants choose to represent themselves, "they must understand that they are required to follow accepted rules of procedure promulgated by the Supreme Court to guarantee an orderly process." Id. at 241-42 (quoting Tuckey v. Harleysville Ins. Co., 236 N.J. Super. 221, 224 (App. Div. 1989)).

Defendant claims to be aggrieved because the Family Part was, in the end, unpersuaded by Dr. Lorraine's attenuated opinions and refused to adopt defendant's position that the Social Security Administration's determinations were indicative of an inability to try the divorce case in 2005. As already noted, the Family Part had the benefit of observing Dr. Lorraine testify and listening to his answers to direct and cross-examination. The judge concluded that Dr. Lorraine's opinions were equivocal and not very useful, even in light of the administrative decision regarding Social Security benefits. We discern no error in the court's conclusions.

The Family Part did not err in refusing to admit Dr. Lorraine's report into evidence. See Corcoran v. Sears Roebuck and Co., 312 N.J. Super. 117, 126 (App. Div. 1998) (expert report not admissible as an adoptive admission); Hill v. Cochran, 175 N.J. Super. 542, 546-47 (App. Div. 1980) (noting expert reports are hearsay and generally not admissible). Furthermore, there was no perceptible prejudice because the court granted defendant almost unfettered opportunities to elicit facts and opinions from Dr. Lorraine. Thus, even without the label of an "expert," which is simply a shorthand way of identifying a particularized witness who is permitted to express opinions, Dr. Lorraine functioned as such under N.J.R.E. 702 and 703.

Dr. Lorraine never examined defendant. Indeed, he had not even met defendant in person until the morning of the plenary hearing. This militated against Dr. Lorraine giving an authoritative opinion about defendant's physical and mental condition as of October 2005. Also, defendant did not present any medical literature that supported his claim that the ingestion of several pharmaceutical products impaired his ability to function as an effective litigant during the divorce trial. Finally, there was nothing improper about factoring into the analysis of defendant's ability to participate in his divorce trial the observations of and accommodations given to defendant by the trial judge.

Contrary to defendant's thinking, the Social Security determination is not conclusive of his entitlement to a new trial. It is but one piece of a complicated jigsaw puzzle that, when assembled, reveals the totality of the circumstances, which were fully reviewed by the Family Part at the plenary hearing. We are unable to detect any error in that process capable of inducing doubt as to the rightness of the orders under appeal.

 
The remaining arguments advanced by defendant, including his fraud on the court line of reasoning, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Thus, we affirm.

We ordered the plenary hearing in what was then the third appeal of the parties' dispute. Steele v. Steele, No. A-6148-06T1 (App. Div. May 14, 2008).

Steele v. Steele, No. A-4143-05T1 (App. Div. April 13, 2007).

The motion judge noted:

[T]he Court would suspend the proceedings in order for the Defendant to rest or sleep. At no time during the proceedings did Defendant ever request the trial be stopped, or give any appearance of falling asleep, or appear in any way incapable of proceeding. On the contrary, Defendant was an active participant in the trial, vigorously questioning, objecting, and making his case.

(continued)

(continued)

17

A-3737-07T1

November 10, 2009