CECILIA M. KERRIDGE v. RODNEY J. KERRIDGE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4120-08T14120-08T1

CECILIA M. KERRIDGE,

Plaintiff-Appellant,

v.

RODNEY J. KERRIDGE,

Defendant-Respondent.

_________________________________

 

Submitted March 3, 2010 - Decided

Before Judges Payne, Miniman and Waugh.

On appeal from Superior Court of New Jersey, Chancery Division, Somerset County, Docket No. FM-18-17373-90.

Cecilia M. Kerridge, appellant pro se.

Heer & Lyons, LLP, attorneys for respondent (Theresa A. Lyons, on the brief).

PER CURIAM

Plaintiff Cecilia M. Kerridge appeals the order entered by the Family Part terminating the obligation of her former husband, defendant Rodney J. Kerridge, to pay her alimony under the terms of their property settlement agreement (PSA). We affirm.

I.

We discern the following facts and procedural history from the record.

The parties were married on November 11, 1972, and divorced on November 13, 1991. The final judgment of divorce incorporated the PSA, which provided for "permanent alimony" of $475.00 per month. The alimony was to "continue until either of the parties' death, [Cecilia's] remarriage or cohabitation with any unrelated adult male."

In 2001, Rodney performed an internet search of newspapers in Santa Cruz, California, where Cecilia and the parties' children were living. He found an article entitled: "The high cost of Senior Year." The article referred to Rodney's son as the "stepson-to-be" of a "Tim Libel," whose last name is actually Leibel. Because the article only referred to his son as Leibel's "stepson-to-be," Rodney did not move for termination of alimony at that time.

In 2007, Rodney discovered his daughter's online journal, in which she referred to Leibel as her "stepfather." Rodney then hired a private investigator. In January 2008, the investigator confirmed that Leibel and Cecilia used the same address. Rodney performed an internet search on Leibel, and found a bankruptcy petition filed by "Timothy Patrick Leibel," using the same address as Cecilia.

In March 2009, Rodney filed a motion to terminate his alimony obligation, citing the provisions of the PSA concerning cohabitation. Cecilia opposed the application, arguing that Rodney had failed to make a prima facie showing of cohabitation.

Judge Thomas Dilts held that Rodney had made a prima facie showing and "[wa]s entitled to a plenary hearing on the issue of [Cecilia's] cohabitation to determine whether it meets the definition of cohabitation as set forth . . . in Konzelman [v. Konzelman, 158 N.J. 185, 202 (1999)]." He established a time period for discovery and scheduled a plenary hearing. He also ordered that Rodney make his alimony payments into an escrow account, but subsequently suspended the payment of alimony and eventually ordered that the escrowed funds be returned to Rodney.

Throughout the litigation, Cecilia has never denied that she and Leibel reside in the same house. She argued instead that they were not "cohabitating" within the meaning of Konzelman because they do not share an intimate relationship with "all the indicia of marriage." She also denied that she and Leibel had any financial interdependence. In support of her position and in opposition to Rodney's discovery applications, she submitted her own certifications, as well as certifications from Bridget F. Grant, Ph.D., her sister and attorney-in-fact, and Leibel.

Grant maintained that Leibel was a friend of hers who, at her request, moved into the California home that she co-owns with Cecilia. Grant was concerned about Cecilia's health and her inability to maintain the house. According to Grant, "I asked Mr. Leibel if he would consider going to California to live in my home rent free in return for his labor related to doing minor home repairs, maintaining the extensive grounds and arranging for contractors to do major repairs prior to my visits to California."

Leibel certified that, since moving into the California home in 2000, he developed a friendship with Cecilia, but that he never had a romantic or intimate relationship with her, nor did he contribute to the household expenses. He also asserted that they had no shared assets or bank accounts.

Notwithstanding numerous court orders compelling their depositions, neither Cecilia nor Leibel appeared for deposition. Throughout the litigation, Cecilia has contended that she is too ill to be deposed or otherwise participate in the litigation:

I have been disabled to some extent since the early 1990s. Over the years these disabilities and other new disabilities have progressed to the point that I am now permanently and totally disabled. I ceased work altogether in 2004, at which time I retired on disability and shortly thereafter (6 months) I received SSDI. My conditions are progressive, extremely serious and not curable. The nature of my pain, which is constant, has been evaluated as 10 on a scale of 1 to 10 (10 being most severe and equivalent to amputation). I have a large spinal cord stimulator implanted permanently at the base of my spine. I take numerous medications. I have been hospitalized twice in the last year and see numerous physicians, mostly specialists. My problems extend beyond pain, such as progressive hearing loss (I have difficulties hearing on the telephone even with amplification and even in close conversation), severe limitations in walking, and memory lapses among other symptoms.

In further support of her contention, Cecilia submitted unsworn statements from her primary care physician, Maria Mead, M.D. On June 16, 2008, Mead wrote that "[Cecilia] has numerous and serious medical conditions and impairments all of which would prevent her from traveling by any mode of transportation to New Jersey." On August 25, 2008, she wrote:

It is my opinion that [Cecilia's] level of physical dysfunction and disability would not permit her to participate in any aspect of a legal action. Her mobility and other physical functioning are impaired and her conditions are associated with extreme pain. Further, the large amount of pain and other medications taken by [Cecilia] for her physical conditions have several side effects that considerably impair her ability to think and concentrate and her memory. [Cecilia] has also recently seen a neurologist concerning frequent memory lapses of significant duration that might be attributable to her medications.

On November 10, 2008, Mead wrote to the court to confirm "that [Cecilia] has been diagnosed in the past few weeks with severe, major depressive disorder."

Based on Mead's statements, the judge scheduled a hearing for December 1, 2008, finding "that a plenary hearing is necessary to determine whether [Cecilia] can appear for deposition, either in person or telephonically." He further explained:

If [Cecilia] fails to produce Dr. Maria Mead . . . via telephone, or alternatively, if [Cecilia] fails to release medical records so that Dr. Mead may testify, then the court will proceed with the plenary hearing when all other discovery is complete and draw inferences against [Cecilia] as a result of her failure to submit to deposition. The court reiterates that [Cecilia] has a duty to submit to deposition and has given [Cecilia] every opportunity to make discovery.

On December 1, 2008, Grant appeared in court and advised the judge that Cecilia would not be appearing in court or by telephone, and would not waive her physician-patient privilege or release her medical records. The judge ruled that adverse inferences would be drawn against Cecilia as a result of her unwillingness, explaining:

The Superior Court judge has a duty to test that which is said by a doctor. So I wanted the doctor on the phone. I wanted [Cecilia] to be able to participate on the phone. . . . I would not just read her short letter, but I would be able to ask her questions, hear what she has to say and then I could make a decision.

. . . [T]oday, because [Cecila] through Doctor Grant, her attorney-in-fact, has asserted that she objects and will not release any records, it is clear that [the] opportunity that I gave was rejected by [Cecilia]. And so, obviously, we are not going to have a plenary hearing on whether she can testify.

The hearing on Rodney's application to terminate alimony took place over two, non-consecutive days in January and February 2009. Rodney was represented by counsel. Grant, even though she is not an attorney, was permitted to represent Cecilia on the basis of the power-of-attorney.

Rodney was his only witness at the plenary hearing on cohabitation. He testified about how he came across the newspaper article, his daughter's online journal, and Leibel's bankruptcy petition, but he offered no other evidence of Cecilia's cohabitation with, or financial dependence on, Leibel.

Grant was Cecilia's only witness. Her testimony can be summarized as follows. She and Cecilia are co-owners of the house where Cecilia and Leibel resided. She met Leibel in 1998, and they became very good friends. In 2000, she invited Leibel to move into the California home because Cecilia had been very ill since 1998 and could not maintain the home. According to Grant, "the deal was that he would not be paying any rent or utilities if he would take care of the properties."

Grant explained that Cecilia had trouble hearing and memory problems, and that she would be incapacitated for days or weeks at a time, during which she could not get out of bed. Cecilia had difficulty traveling outside the house, and walked with a cane or walker. She also had trouble bathing, and washing and brushing her own hair. When her health would permit it, Cecilia did her own laundry and drove herself to the doctor. Grant testified that Leibel would sometimes drive Cecilia to the doctor or emergency room.

Grant further testified that Leibel never paid for any household repairs or supplies, although he provided the labor. He paid for his own food and clothes, cooked his own meals, and did his own laundry. He did not pay the utilities, mortgage, or taxes. Grant and Cecilia split those bills. She further testified that Leibel and Cecilia had separate bedrooms and bathrooms. Grant testified that she travels to the California house on an average of four times per year, staying at the house approximately forty to fifty nights over the course of a year.

Grant estimated that the value of the services performed by Leibel in lieu of rent was between $700 and $800 per month. In addition, she testified that, although the house was built in 1997, it required approximately $10,000 worth of maintenance per year.

On March 20, 2009, Judge Dilts issued written findings of fact and conclusions of law. He made the following findings of fact:

1. Living Arrangement. The plenary hearing began on January 26, 2009 and ended on February 6, 2009. During these two days the court heard the testimony of [Rodney] and Dr. Grant. With regard to Dr. Grant's testimony, she testified, among other things, that she knew Mr. Leibel in 1998. He was her friend in Maryland. Dr. Grant testified that in 2000 she decided that it would be good for Mr. Leibel to go to live in the California home owned by her and her sister, Cecilia Kerridge. This was a new home that was constructed in 1997, which Cecilia Kerridge and her children then occupied. Mr. Leibel moved to California and lived in the residence since April 2000. The court finds, based upon the testimony of Dr. Grant, that Mr. Leibel and [Cecilia] lived together in the same residence from April 2000 through the present time.

2. Services provided by Mr. Leibel. Dr. Grant testified that the reason Mr. Leibel went to live with [Cecilia] was because her health was deteriorating. She testified that in 1998 [Cecilia's] health had gotten worse and she couldn't take care of the house or the yard. Dr. Grant testified that Mr. Leibel pays no rent and does not pay utilities. Instead, he cuts trees, works on drainage and takes care of house repairs. Mr. Leibel does not pay for any materials for his repairs; rather, he only provides his labor. The cost of materials are paid 50 percent by [Cecilia] and 50 percent by Dr. Grant. Dr. Grant denied that Mr. Leibel provides any health care or personal care for [Cecilia] and denies that he prepares food or takes any action that benefits her directly. There is no evidence to rebut this testimony.

3. Financial relationship between Mr. Leibel and Cecilia Kerridge. The case information statement filed by [Cecilia] and the testimony of Dr. Grant, indicate that [Cecilia's] only source of income is a share of [Rodney's] pension, which was distributed at the time of the divorce, in addition to social security disability and private disability. There is no proof that she receives any income from Mr. Leibel. Various documents were offered in evidence that indicate that utility bills (from the date of the filing of the motion to terminate support), mortgage payment, deed to the property, checking account, car ownership, are all in [Cecilia's] name, or the name of [Cecilia] and Dr. Grant, and none are in the name of Mr. Leibel. In fact, there is nothing in evidence [to] show any joint bank account, shared living expenses or intertwining of finances between Cecilia Kerridge and Mr. Leibel. The bankruptcy petition filed by Mr. Leibel does not disclose any financial intertwining between [Cecilia] and Mr. Leibel.

4. Evidence relating to "intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage." There was no proof offered with regard to a sexual relationship or a romantic relationship in the proofs before me. Rather, the record discloses a long-term living arrangement where both parties live in the same residence. Additionally, the article in the Santa Cruz Sentinel Newspaper on June 7, 2001 is the only evidence of an intimate relationship that had been developed between [Cecilia], her children, and Mr. Leibel. A little more than a year after he moved into the residence, Mr. Leibel was quoted in a newspaper article with regard to the high cost of senior year activities. Reference was made to . . . the son of plaintiff and defendant. The article, in relevant portions, reads as follows:

Tim [Leibel], whose stepson-to-be, . . . graduates from Harbor High School next Thursday, ticked off some figures: $300 for the fall prom, $200 more for the spring formal, $400 for a class ring, $100 for cap and gown, $25 for a videotape of the ceremony, $200 for senior pictures. "That's $1, 225 I can think of in 30 seconds," he said. "The costs of ACTs, SATs, applications for colleges and traveling to check out places, that's probably another $1,000." He's not sure how much graduation will cost, but with family visiting from back east, he expects expenses will go up. "What are you going to do?" Libel asked. "You only get to do it once, and it's a big day for parents, for the whole family."

The court infers from this article that an intimate relationship did exist between Mr. Leibel and [Cecilia] sufficient that Mr. Leibel in discussing [the son's] graduation held [the son] out to be [his stepson-to-be]. He then recited with a parent's personal familiarity the cost incurred in [the son's] activities.

With respect to other proof's [of] an "intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage," there are no other proofs that were offered and the court makes no further findings other than this on the record before me.

5. Indirect financial benefit to [Cecilia]. [Rodney's counsel] argues that Dr. Grant testified that Mr. Leibel does repair and yard work in exchange for rent and she estimates the value of the exchanged services to be approximately $800 per month. It is argued that because [Cecilia] is a 50 percent owner of the home, that she is receiving at least $400 per month in economic services from Mr. Leibel which is only $75 less than the regular monthly alimony support obligation. The court finds this argument to be correct but would not, on the record before this court, reduce the alimony obligation to $75 per month plus the 25 percent share of his gross annual bonus as set forth in paragraph 8 of the 1991 Property Settlement Agreement. The reason for this is that the reduction in support must be granted in proportion to the contribution of the cohabitant to the defendant's spouse's need. A $400 reduction in maintenance costs per month would be approximately 15 percent of [Cecilia's] stated monthly budget. The amount contributed is to be reduced in proportion to the contribution and is not to be a dollar per dollar reduction for the benefit of [Rodney's] obligor.

The judge then determined that Rodney had made a prima facie showing of cohabitation, thereby shifting the burden of proof to Cecilia. In doing so, he relied on our opinion in Ozolins v. Ozolins, 308 N.J. Super. 243, 248-49 (App. Div. 1998) ("There is a rebuttable presumption of changed circumstances arising upon a prima facie showing of cohabitation. The burden of proof, which is ordinarily on the party seeking modification, shifts to the dependent spouse.").

He explained his reasons for concluding that Cecilia had not met her burden of proof as follows:

The court initially decided on May 9, 2008 that a prima facie case had been established and there was a right to a plenary hearing and an opportunity for discovery. After the plenary hearing, the court still holds that a prima facie case was shown in that it is undisputed that Mr. Leibel has lived in the same residence with [Cecilia] since April 2000 and because the relationship was close enough that 15 months after he moved in, Mr. Leibel was holding [her son] out as his "[stepson]-to-be." To be very clear, this court's decision turns on who has the burden of persuasion once it is shown that there is cohabitation. In this case, the court holds that [Cecilia] has the obligation to submit to discovery. She did not do so. She refused to attend a deposition despite court order and the opportunity to do so. [Cecilia] and her attorney-in-fact, Dr. Grant, refused to produce Dr. Maria Mead for purposes of answering the court's concerns with regard to her alleged disability and inability to testify at a deposition a few miles from her home. The court holds that her failure to make discovery denied to [Rodney] and to the court relevant information that could have shown the existence of an "intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage." Her decision to stubbornly refuse to submit to full discovery, and to fully participate in this proceeding without justifying her medical inability to do so, is decisive to this court's decision. The information that is needed to give [Rodney] the opportunity to prevail is solely within the hands of [Cecilia] and Mr. Leibel. Certainly the record before me does not show "intertwined finances such as joint bank accounts, sharing living expenses." However, by the failure to engage in full discovery, Dr. Grant has been permitted in her proofs to "cherry pick" that which she would . . . offer[]. Additionally, there is really no opportunity for [Rodney] to effectively deal with the issue of shared "household chores" or to fully explore the "recognition of the relationship in the couple's social and family circle" or to challenge the proofs offered regarding co-mingling of funds.

The court's decision is that [Rodney's] motion to terminate his alimony obligation will be granted effective March 20, 2008, the date he filed the motion. [Cecilia] denied him access to important information and as the court indicated in its November 14, 2008 Order, and confirmed in its December 1, 2008 Order, the failure to make discovery causes the court to "draw adverse inferences against [Cecilia] as a result of her failure to submit to deposition." [Cecilia] cannot deny to this court the information that is needed for a full and fair hearing and then successfully claim the right to continue to receive alimony. If she wishes to receive alimony, she has an absolute obligation to submit to full discovery. Drawing adverse inferences against [Cecilia] on important aspects of the intimacy of their relationship and the full nature of the relationship between her and Mr. Leibel, the court concludes that alimony will be terminated effective March 20, 2008.

Based upon his findings of fact and conclusions of law, the judge entered an order on March 20, 2009, (1) terminating alimony as of March 20, 2008, the date on which Rodney filed his motion, (2) denying both sides' motions for counsel fees, and (3) permitting Rodney to terminate his life insurance policy, at his option, as of January 1, 2010. Rodney was also given the right to change the policy's beneficiary immediately. This appeal followed.

II.

Before turning to the specific arguments raised in this appeal, we address more generally some of the legal principles that govern this appeal.

A.

Our scope of review of a Family Part judge's factual findings is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998); Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007). We are generally bound by the trial court's findings of fact "when supported by adequate, substantial, credible evidence." Cesare, supra, 154 N.J. at 411-12. This is especially so when questions of credibility are involved. Id. at 412. In addition, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.

Because of the special expertise of Family Part judges, "we do not second-guess their findings and the exercise of their sound discretion," and we recognize that "'[j]udicial discretion connotes conscientious judgment, not arbitrary action; it takes into account the law and the particular circumstances of the case before the court.'" Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007) (quoting Higgins v. Polk, 14 N.J. 490, 493 (1954)). However, a trial judge's legal decisions are subject to our plenary review. Crespo, supra, 395 N.J. Super. at 194; Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

"Whether an alimony obligation should be modified based upon a claim of changed circumstances rests within a Family Part judge's sound discretion." Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) (citing Innes v. Innes, 117 N.J. 496, 504 (1990)). "Each and every motion to modify an alimony obligation 'rests upon its own particular footing and the appellate court must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters.'" Ibid. (quoting Martindell v. Martindell, 21 N.J. 341, 355 (1956)). The trial court's determination of whether the moving party has demonstrated changed circumstances is entitled to "substantial deference" and will not be disturbed unless we are convinced that the findings "'are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Walles v. Walles, 295 N.J. Super. 498, 513 (App. Div. 1996) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).

"An appellate court will generally defer to a trial court's determinations regarding discovery," and those determinations are reviewed under the abuse of discretion standard. Pressler, Current N.J. Court Rules, comment 4.5 on R. 2:10-2 (2009); see Rivers v. LSC Partnership, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005) (stating that "generally, [the appellate court will] defer to a trial court's disposition of discovery matters unless the court has abused its discretion or its determination is based on a mistaken understanding of the applicable law"). An abuse of discretion "arises when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002) (citation omitted). Stated differently, this standard examines "whether there are good reasons for an appellate court to defer to the particular decision at issue." Ibid.

B.

In Gayet v. Gayet, 92 N.J. 149, 154-55 (1983), the Court held that "cohabitation" was a changed circumstance under Lepis v. Lepis, 83 N.J. 139, 150-53 (1980).

If plaintiff cohabits with another woman, defendant will have the opportunity to seek a reduction in alimony by obtaining discovery and showing either that plaintiff's economic needs have decreased because the woman is contributing to his support, or that he is subsidizing her at defendant's expense. It is impermissible for the court to assume in advance, and in the absence of a factual context, that cohabitation would eliminate plaintiff's need.

[Boardman v. Boardman, 314 N.J. Super. 340, 347 (App. Div. 1998).]

A dating relationship alone does not give rise to a claim to terminate alimony. Konzelman, supra, 158 N.J. at 202. Rather, "cohabitation" is a prerequisite to recovery precisely because it involves much more, as it is predicated on a relationship that enjoys "stability, permanency and mutual interdependence." Ibid. Indeed, to determine the "true nature of the relationship," one looks at whether the couple "bears the 'generic character of a family unit as a relatively permanent household.'" Gayet, supra, 92 N.J. at 155 (internal citation omitted). This includes:

those factors that make the relationship close and enduring and requires more than a common residence, although that is an important factor. Cohabitation involves an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage. These can include, but are not limited to, living together, intertwined finances such as joint bank accounts, sharing living expenses and household chores, and recognition of the relationship in the couple's social and family circle.

[Konzelman, supra, 158 N.J. at 202.]

Generally, the burden of proving changed circumstances rests upon the party seeking to modify the support obligation. Lepis, supra, 83 N.J. at 157. A dependent spouse's cohabitation with another party has been recognized as changed circumstances warranting modification of a support obligation. Id. at 151.

Changed circumstances resulting from a dependent spouse's cohabitation warrant modification "when (1) the third party contributes to the dependent spouse's support, or (2) the third party resides in the dependent spouse's home without contributing anything toward the household expenses." Gayet, supra, 92 N.J. at 153. Simply stated, modification is required "only if one cohabitant supports or subsidizes the other under circumstances sufficient to entitle the supporting spouse to relief." Id. at 153-54.

Generally, economic contribution by the cohabitee is the primary factor in determining whether cohabitation by the dependant spouse should reduce an alimony award. Melletz v. Melletz, 271 N.J. Super. 359, 363 (App. Div.), certif. denied, 137 N.J. 307 (1994). The test is "'whether the relationship has reduced the financial needs of the dependent former spouse.'" Ibid. (quoting Gayet, supra, 92 N.J. at 150).

"[A] rebuttable presumption of changed circumstances [arises] upon a prima facie showing of cohabitation. The burden of proof, which is ordinarily on the party seeking modification, shifts to the dependent spouse" to show that he or she has not derived an economic benefit from the cohabitation. Ozolins, supra, 308 N.J. Super. at 248-49. The reason for this shift in the burden of proof from the party seeking modification to the dependent spouse is because "'it would be unreasonable to place the burden of proof on a party not having access to the evidence necessary to support that burden of proof.'" Id. at 249 (quoting Frantz v. Frantz, 256 N.J. Super. 90, 93 (Ch. Div. 1992)).

III.

We now turn to the issues on appeal.

A.

Cecilia argues that the Family Part judge incorrectly determined that Rodney had made out a prima facie case of cohabitation. We disagree.

Significantly for the purposes of this appeal, Cecilia does not deny that she and Leibel shared the same residence during the relevant time period. Indeed, Grant's trial testimony was to that effect. We see no abuse of discretion in the judge's determination that Rodney's motion, supported by his certification with respect to the joint residence and the apparent references to Leibel as the future or present step-parent to the Kerridge children, was sufficient to warrant discovery and eventually a plenary hearing.

The specific purpose of both the discovery and the plenary hearing was to determine whether Cecilia's joint residence with Leibel constituted cohabitation within the meaning of Konzelman. Obviously, Cecilia and Leibel, both of whom live in California, were the primary sources of the facts that would inform that determination. See Ozolins, supra, 308 N.J. Super. at 249.

Cecilia resisted direct participation in discovery, particularly the taking of her deposition, citing her poor health and supporting her assertions in that regard with unsworn statements from her doctor. The judge correctly decided to hold a telephonic hearing to assess for himself whether Cecilia was able to participate. Once the judge set up the telephonic hearing, Cecilia, who had directly put her medical condition in issue, refused to participate and invoked the physician-patient privilege to prevent Mead's testimony. She did so in the face of the judge's clear warning that he would draw adverse conclusions under those circumstances.

We see no abuse of discretion with respect to the judge's decision to hold the telephone hearing to determine the issue of Cecilia's ability to participate in the litigation in general and the deposition in particular. He was certainly under no obligation to accept Mead's unsworn statements, nor did he have to rely on Cecilia's sworn statements concerning her medical condition without testing them through taking her testimony. See R. 1:6-6. He correctly accommodated Cecilia's apparent inability to travel by proposing to take the testimony over the telephone.

Having herself put her medical condition at issue and disclosed Mead's medical opinions, Cecilia was not free to invoke the physician-patient privilege. See Stigliano v. Connaught Labs., Inc., 140 N.J. 305, 312 (1995) ("Once a patient waives the physician-patient privilege, it 'is a waiver of the privilege in regard to all of his knowledge of the physical condition asked about.'" (quoting 8 Wigmore on Evidence 2390 at 861 (McNaughton rev. 1961))). Under the circumstances, the bar against drawing an adverse inference from the invocation of a privilege, N.J.S.A. 2A:84A-31 and N.J.R.E. 532, is not applicable. We also reject Cecilia's argument that she needed to protect her medical condition from Rodney. She was, as noted, the one who introduced the issue in connection with her efforts to avoid a deposition. More significantly, it was the judge himself who wanted to question Mead about Cecilia's alleged disabilities.

We see no abuse of discretion in the judge's determination to draw adverse inferences from Cecilia's refusal to participate in deposition discovery and to prevent Mead's participation. As a general matter, the imposition of discovery sanctions will not be disturbed absent an abuse of discretion. Cavallaro v. Jamco Prop. Mgmt., 334 N.J. Super. 557, 571 (App. Div. 2000). See also Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995) (noting that the standard of review for discovery misconduct is whether the trial judge abused his or her discretion). "A trial court has inherent discretionary power to impose sanctions for failure to make discovery, subject only to the requirement that they be just and reasonable in the circumstances." Calabrese v. Trenton State Coll., 162 N.J. Super. 145, 151-52 (App. Div. 1978), aff'd, 82 N.J. 321 (1980); Grubbs v. Knoll, 376 N.J. Super. 420, 435 (App. Div. 2005).

In addition, the judge was also permitted to draw adverse inferences from Cecilia's failure to testify at the subsequent plenary hearing, as well as her failure to offer Leibel's testimony at that time. "Generally, failure of a party to produce before a trial tribunal proof which, it appears, would serve to elucidate the facts in issue, raises a natural inference that the party so failing fears exposure of those facts would be unfavorable to him." State v. Clawans, 38 N.J. 162, 170 (1962). "The adverse inference charge, also known as the Clawans charge, is available when a party does not call to the stand a witness that the party has the power to produce and whose testimony would be superior to testimony presented at trial." Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 118 (2005). Cecilia was able to obtain a certification from Leibel, with whom she still resides; and there is no reason to believe she could not have prevailed upon him to testify, especially in light of the judge's willingness to take testimony by telephone.

Both Cecilia and Leibel were in the best position to supply evidence concerning their relationship, yet they were only willing to do so through sworn statements, rather than live testimony, even by telephone, during which they would have been subject to cross-examination.

Cecilia's argument that she should have been allowed to offer her own testimony through her attorney-in-fact, Grant, has no merit and her reliance on Rule 4:14-2, which applies to corporate agents, is misplaced. Grant was a trial witness, but she could not have testified with personal knowledge to facts known only to Cecilia. In fact, it was clear from Grant's testimony that she generally went to the house in California only four times a year for a total of approximately forty to fifty days, and was consequently absent for over three hundred days a year.

Grant's proposed testimony as to Cecilia's knowledge would have been inadmissible under N.J.R.E. 602. The foundation for the admission of lay testimony is personal knowledge. Phillips v. Gelpke, 190 N.J. 580, 589 (2007) (citing N.J.R.E. 602). "A person who has no knowledge of a fact except what another has told him [or her] does not, of course, satisfy the present requirement of knowledge from observation." McCormick on Evidence 10 (5th ed. 1999). "When the underlying statement is hearsay, there can be no 'personal knowledge' of the substance of the statement, but only knowledge of the fact that the statement was made." Neno v. Clinton, 167 N.J. 573, 585-86 (2001).

We have determined that the record as a whole, including adverse inferences based upon Cecilia's conduct, supports Judge Dilts' determination that there was cohabitation between Cecilia and Leibel and that a termination of alimony was warranted. To the extent the decision was made without the benefit of evidence directly from Cecilia, the fault was her own and not that of the judge or Rodney. In our view, her refusal to participate, coupled with her refusal to allow the judge to satisfy himself that she was medically unable to do so, left the judge little choice but to grant Rodney's application.

B.

Cecilia argues that the judge erred by denying her October 1, 2008, and December 10, 2008, motions for his recusal. She argues that "a continued blatant pattern of biased and unfair rulings, failure to follow the rules of the court of New Jersey and abuse of power . . ., constituted reasons . . . that would preclude a fair and unbiased hearing and judgment." Rule 1:12-2 provides: "Any party, on motion made to the judge before trial or argument and stating the reasons therefor, may seek that judge's disqualification." The disposition of a motion for recusal is entrusted to the "'sound discretion' of the judge whose recusal is sought." Pressler, Current N.J. Court Rules, comment on R. 1:12-2 (2009) (citing Chandok v. Chandok, 406 N.J. Super. 595, 603 (App. Div.), certif. denied, 200 N.J. 207 (2009)); see also Magill v. Casel, 238 N.J. Super. 57, 63 (App. Div. 1990).

In denying Cecilia's October 1, 2008, motion for recusal, the judge explained:

Rule 1:12-1(c), (d), (e) and (f) do not apply. The judge has not been attorney of record or counsel in the action, the judge has [not] given an opinion upon a matter in question in the action nor does the judge have an interest in the events of the action.

Under part (f), there is no other reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so. This court does not have personal bias or prejudice concerning any party in this litigation. The court is familiar with the matter and has handled this case since the mid-1990's. The fact that a party here, [Cecilia] does not like the court's rulings is not a basis for recusal. Rulings that are necessarily made by a judge handling a case are not reason for recusal. In fact, to the contrary, the judge's obligation to hear the case continues and is even greater based upon his familiarity with the issues presented.

In denying Cecilia's December 10, 2008, motion for recusal, the judge explained that her request was utterly without merit and summarily denied it. She had presented nothing new and was essentially making a motion for reconsideration. She utterly failed to establish good cause.

There was no evidence that the trial judge was not impartial. A judge must conduct the court proceedings in a fair and impartial manner. Mercer v. Weyerhaeuser Co., 324 N.J. Super. 290, 297-98 (App. Div. 1999) (citing Cestero v. Ferrara, 110 N.J. Super. 264, 273 (App. Div. 1970), aff'd, 57 N.J. 497 (1971)). Having reviewed the record, we find nothing to support any assertion of judicial bias.

C.

Having reviewed the remaining issues raised on appeal in light of the record before us, we have determined that they do not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

IV.

In summary, we affirm the order on appeal for the reasons stated in Judge Dilts' thoughtful oral and written opinions, as to which we have found support in the record and no abuse of the judge's broad discretion.

Affirmed.

 

Because the parties use the same last name, we refer to them by their first names for the sake of convenience.

They apparently continue to do so.

Rule 1:6-6 (emphasis added) provides:

If a motion is based on facts not appearing of record or not judicially noticeable, the court may hear it on affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify and which may have annexed thereto certified copies of all papers or parts thereof referred to therein. The court may direct the affiant to submit to cross-examination, or hear the matter wholly or partly on oral testimony or depositions.

N.J.R.E. 602 provides that "a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter."

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10

A-4120-08T1

May 3, 2010