ROBERT W. OLSZEWSKI JR v. CHRISTINE OLSZEWSKI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2000-11T1

ROBERT W. OLSZEWSKI, JR.,

Plaintiff-Appellant,

v.

CHRISTINE OLSZEWSKI,

Defendant-Respondent.

__________________________________

April 4, 2013

 

Argued December 11, 2012 - Decided

 

Before Judges Lihotz, Ostrer and Kennedy.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-334-11.

 

Kimberly A. Engan argued the cause for appellant (Pellettieri, Rabstein & Altman, attorneys; John A. Hartmann, III and Ms. Engan, of counsel; Ms. Engan and Jaclyn M. Wyrwas, on the briefs).

 

Angie Gambone argued the cause for respondent (Trace and Jenkins, LLC, attorneys; Thomas J. Jenkins and Ms. Gambone, of counsel; Ms. Gambone, on the brief).

PER CURIAM

On the first day of the parties' divorce trial, the court granted the motion of plaintiff's counsel to be relieved. She cited a break-down of communications between herself and plaintiff. The judge relieved counsel, insisted that plaintiff proceed with trial that day, representing himself, and denied his request for a continuance to hire another attorney. On the second day of trial, after the court rejected plaintiff's renewed request for a continuance, plaintiff requested the return of his relieved attorney. The court denied that request as well. As the court mistakenly exercised its discretion, we reverse the judgment entered after the custody trial and remand for a new trial before a different judge. We also vacate the court's order awarding fees to defendant.

I.

We focus on the court's procedural rulings at the outset of the trial, and in the days that followed. However, we first provide some background.

The parties were married for twelve years when they filed their respective complaints for divorce. From the beginning, it was apparent that custody of the parties' three children, then ranging in age from four to ten years old, was a point of dispute. Plaintiff sought a "co-equal shared physical parenting plan", and defendant sought primary residential custody.

By the time of the trial, the parties had obtained separate residences in the same town. They exercised a shared parenting arrangement, notwithstanding the entry of civil restraints in September 2011, after defendant dismissed a domestic violence temporary restraining order against plaintiff.

The parties had jointly hired David Davenport, Ed.D, a licensed psychologist, to conduct custody evaluations. But, they delayed initiating the evaluations. Unable to resolve the custody issue, Dr. Davenport examined defendant on September 19, 2011, and plaintiff on October 3, 2011. Dr. Davenport submitted his report to the parties on October 18, 2011, less than a week before the scheduled start of trial on October 24. He recommended that the parties share joint legal custody, with defendant as the parent of primary residence, and plaintiff exercising parenting time every other weekend from Friday evening through Sunday evening, plus one weekday evening per week.

The day after receiving Dr. Davenport's report, plaintiff's counsel, Christine C. Cockerill, requested that the court adjourn the trial to enable plaintiff to review the report. She also wrote, "We also anticipate the need to potentially retain an independent expert." The record does not include any written response by the court, but it is apparent the request was denied and the trial remained scheduled for October 24, 2011. However, the court did thereafter grant plaintiff a two-day adjournment because of a death in his family.

At the beginning of the first day of trial on Wednesday, October 26, 2011, the judge noted he had not received a trial memorandum from plaintiff's counsel, but instead received a letter from her, in which she explained that plaintiff had not permitted her to submit it, and, in the court's words, had "cut ties with" her.1 The judge also noted that he had received a motion to be relieved with a certification.

Initially, the judge stated, "I'm not going to release Ms. Cockerill unless you have another attorney that's willing to sign on and start today." However, the judge soon abandoned that position. Cockerill informed the court that she was prepared to try the case; she had pre-marked trial exhibits; but there had been a breakdown in communications between her and plaintiff, which was unrelated to fees. She proposed to present specifics to another judge. Plaintiff confirmed that communications had broken down, that he did not wish her to represent him, but that he did not wish to represent himself. The court then granted the motion.

We quote at length from the colloquy at the point where the court begins to question plaintiff:

THE COURT: Sir, is what Ms. Cockerill speaks of the truth?

 

THE PLAINTIFF: There was a communication breakdown, Your Honor. There was a communication breakdown.

 

THE COURT: Well, that's what I'm asking. Do you want her to represent you or not?

 

THE PLAINTIFF: I don't think it's a good time right now.

 

THE COURT: You don't think it's a good time right now?

 

THE PLAINTIFF: I mean, I called her yesterday and but I don't think it's a good I don't think it's

 

THE COURT: Sir, the question is very clear.

 

THE PLAINTIFF: From being what I'm hearing, no, I don't think it would be in my best interest for Ms. Cockerill

 

THE COURT: So you do not wish her to represent you at this time?

 

THE PLAINTIFF: Correct.

 

THE COURT: You have another attorney or you're going to represent yourself then?

 

THE PLAINTIFF: I do not wish to represent myself.

 

THE COURT: Well, then you have another attorney willing to step in?

 

THE PLAINTIFF: I do not.

 

THE COURT: Well, then you're proceeding on your own.

 

THE PLAINTIFF: I do that against my

 

THE COURT: Well, you will. That will be the case. If you're agreeing that you have thwarted her efforts at representing you, that she prepared a Trial Memorandum and you did not allow her to finish it, that's fine. It'll proceed without her.

 

THE PLAINTIFF: Your Honor, I'm not prepared to [re]present myself.

 

THE COURT: I don't care, sir.

 

THE PLAINTIFF: And this was a Saturday

 

THE COURT: I do not care. Today's the trial date. This is you're well aware of the issues. It's going to proceed today.

 

THE PLAINTIFF: I'm not aware of the issues. That was my main background.

 

THE COURT: Well, you're expected to if you're going to represent yourself. Ma'am, you're an attorney?

 

MS. O'NEILL: Yes, I am, Your Honor.

 

THE COURT: You want to come forward and identify yourself?

 

MS. O'NEILL: Monica O'Neill from the firm of Thomas, Thomas & Hafer. I am here not as counsel for Mr. Olszewski but as his friend.

 

I've become aware of the situation only very recently. It's my understanding

 

THE COURT: So you have no standing to be here. You're not represent[ing]?

 

MS. O'NEILL: I am not representing Mr. Olszewski. That is correct.

 

THE COURT: Thank you. Sit down. I am going to relieve Ms. Cockerill of her representation. I am going to ask her to take a half-hour at this time to present the Trial Memorandum that she had prepared, with the documents, exhibits.

 

Let the Defendant the Plaintiff review them. Make sure he has everything that you feel he needs and hand the file over to him, and then we're going to start this trial at approximately 11:00 o'clock.

 

MS. COCKERILL: Thank you, Your Honor.

 

The parties returned to court around 11:10 a.m. Plaintiff objected to the court's denial of a continuance, and reported that he had spoken with an attorney, he identified him, and said "he'd be here right now but he can't because he has, you know, another trial." Once the judge confirmed that plaintiff had not yet retained the attorney, he concluded, "he's not your attorney," and denied a request for time to retain the attorney. The court referred to prejudice to the defendant, who was prepared to start trial.

The court noted that the early settlement panel met on August 10, 2011; a pretrial conference was held September 27, 2011; and the trial date was set for Monday, October 24, 2011. It was then adjourned for two days to allow plaintiff to attend a funeral. Defendant insisted he did not want to represent himself.

THE COURT: Your attorney made a case and you agreed, that in fact you haven't been cooperating and you didn't want her here. That's what you told me. In essence, you want to be your own attorney.

 

MR. OLSZEWSKI: That is incorrect, Your Honor.

 

THE COURT: Well, you are your own attorney because you fired your attorney of record; right?

 

MR. OLSZEWSKI: Correct, I did.

 

THE COURT: You fired her.

 

MR. OLSZEWSKI: I did release my attorney but I correct.

 

THE COURT: Right. And I am not allowing you you have appeal rights at the end of this but I for the record, I am not allowing you to control the Court's trial schedule.

 

Once the trial began, plaintiff quickly surrendered his opportunity to present a case. He stated he had "no idea" how to proceed. He then stated, "I'll rely on the allegations contained in my Complaint and the other submissions by my former attorney. I rest."

Defense counsel proceeded to call his client, who testified briefly on the cause of action.2 Defense counsel then called plaintiff. Plaintiff renewed his request for a continuance stating he was not prepared to try the case. The court denied the request. The court then permitted defense counsel to treat plaintiff as a "hostile witness . . . as if it were cross-examination." In the course of the direct examination, the judge supplemented his reasons for proceeding, noting that the case was "one of my oldest cases. This case is severely over goal." The court referred to the pressure to move old cases.

Before the lunch break, the court encouraged the parties to try to narrow the issues. They did not and the trial continued for the balance of the afternoon, which was consumed by defense counsel's direct examination of plaintiff. The questioning addressed plaintiff's employment and financial issues. At numerous points in defense counsel's direct examination, plaintiff attempted to explain the financial transactions at issue, but the court barred him from doing so, and advised plaintiff he would have an opportunity to explain when plaintiff cross-examined himself. The day's proceedings ended without completing the direct examination of plaintiff.

At the outset of the next day, October 27, 2011, plaintiff placed on the record his continuing objection to moving forward with the trial, and stated that he was unable to hire an attorney. The judge insisted, "I made it clear to you that if you didn't have an attorney, you were going to be your own attorney." Plaintiff said he did not understand that. The judge acknowledged that he could have given plaintiff a short adjournment and remediated prejudice to defendant by awarding costs. "[I]t would have been very prejudicial to the defendant from the standpoint and I guess maybe I could have made it up with attorney fees and costs, I don't know but they're ready to go, you weren't. Well, actually you were but you fired your attorney."

The court attempted to provide guidance to plaintiff as to how to conduct himself in trial. Plaintiff conceded he was "all over the place", and "I don't know what I'm doing." He stated, "I did not understand that if I relieved my counsel when she stood up here, if I relieved her, that I was then going to represent myself. There is no way possible I would sit here . . . and do it."

The court then stated, "I thought it was clear." The judge then sought confirmation from defense counsel. "If there's any question in your mind I'll cancel it right now, Mr. Jenkins, because quite frankly it could prejudice you[r] proceeding." Defense counsel responded, "That was my understanding, Judge." The court then recalled, erroneously, that he relieved counsel only after requiring her to meet with plaintiff.

Plaintiff asked if the court would reconsider its decision to relieve his attorney and require her to return to represent him. "So is there anyway possible that the Judge could ask Christine [Cockerill] to come back and represent me?" The court denied the request, stating, "No, she's out of the case, sir. You released her yesterday. I didn't. You did."

Plaintiff stated that his primary interest was securing fifty percent shared custody. The judge then indicated that he was predisposed against awarding shared custody in the face of one party's opposition. The judge stated he was willing to participate in settlement discussions, and "make a call" on alimony, but would not do so on custody. "Custody, I don't know, you know, it's the best interest of the child issue. If you can't get along, it's not going to be shared. Can't do it."

The judge also suggested he would follow the expert's recommendation which favored defendant's position. "Look at the expert report. I have an expert report. I have to follow, normally, what an expert is telling me; right?"

The parties then recessed to attempt to settle the case. From the colloquy the following week, it is apparent that the judge personally participated in the settlement discussions. Plaintiff also apparently agreed to seek an attorney's review of the tentative agreement that was reached.3

The parties returned to court Monday, October 31, 2011. Defense counsel reported that he and plaintiff had engaged in settlement discussions, he had transmitted a proposed agreement to plaintiff on Friday, but plaintiff had not accepted it. The court then asked plaintiff if he had met with an attorney. Plaintiff stated he sought advice from friends, but no one formally sat down with him. The court ultimately concluded, based on that discussion, that plaintiff was not a credible witness.

THE COURT: You[] did meet with counsel?

 

MR. OLSZEWSKI: I did not.

 

THE COURT: Why didn't you? That's what you were

 

MR. OLSZEWSKI: Because I got in at 12:30 and I couldn't have time to. Nobody wanted to meet me on a Saturday or Sunday so I did it on my own. I mean I called friends and I asked for advice and things like that but nobody formally sat down with me and went over it step by step, these are your finances, these are your CIS's, this is what's going on, anything like that.

 

MR. JENKINS: (inaudible)

 

MS. OLSZEWSKI:4 Your Honor, just for the record. On Friday when we did send over the agreement, we were then contacted by Mr. Olszewski's attorney friend who was here, who informed us that she was reading the agreement and was sending it to [an] additional attorney friend and that they were all going to be working on reviewing the agreement.

 

MR. OLSZEWSKI: It was my attorney friend. She's not in family law or anything like that. She only had a question as to where

 

THE COURT: Yeah, you're I understand, sir.

 

MR. OLSZEWSKI: But I mean I didn't sit down with her and go through it but it was lines that were gone through and I asked her to give them a call. So I'm not withholding that it's just I never sat down with anybody who knows anything about this to discuss it.

 

THE COURT: Well, my problem is I think I'm too far into this settlement discussions to continue with the trial. Quite frankly, sir, I don't think you have any credibility whatsoever.

 

MR. OLSZEWSKI: Well, Your Honor

 

THE COURT: I've all ready made that determination in my mind.

 

MR. OLSZEWSKI: I'm sorry.

 

THE COURT: Just from the testimony I've heard from what you testified to you can listen to me now.

 

MR. OLSZEWSKI: I am. I caught myself, Your Honor.

 

THE COURT: And you're stuck with that testimony quite frankly but I'm not going to continue this trial. How I feel now because quite frankly I don't believe a word you're telling me. You say you're not having attorneys look at it then I find out after she says something, yeah, I have attorneys

 

The judge then stated that, based on plaintiff's still ongoing direct examination, and prior to cross-examination, he deemed plaintiff to be unworthy of belief, "Look, sir, please don't talk because every time you open your mouth to me, it further strengthens the fact that I don't believe a word you're telling me. I honestly don t." The court also said, "I don't give you any credibility whatsoever after the testimony I've heard, none." The court then qualified its statement, "I'm looking at from what I'm hearing and that may be drastic. I don't know. I haven't heard the rest of the testimony yet."

The court also questioned whether plaintiff had participated in settlement negotiations in good faith, stating, "I feel the plaintiff has wasted our time." Apparently referring to settlement discussions that preceded the trial, the judge stated, "This matter was all but settled with the attorney. I know that as a fact."

The judge initially concluded that he would not continue the trial because of his personal involvement in settlement negotiations on the previous Thursday, but then defense counsel urged the court to try the custody issue. He noted that Dr. Davenport suggested that plaintiff exercise parenting time every other weekend and Wednesday evenings. He disclosed that defendant offered plaintiff "more than that" in settlement discussions, but plaintiff declined. Defense counsel conceded that the parties "de facto have a shared parenting arrangement to the extent that they split the time equally." He agreed the status quo of shared parenting time remained unchanged. However, he asserted "[T]hat arrangement fell apart. That's why we did the custody evaluations, Judge, and that's where we are." Counsel asserted that the expert "was concerned about interference with appropriate medical treatment. He's concerned with trying to influence the older daughter to go along with this arrangement so there's a lot of stuff going on that needed to get dealt with."

Without hearing plaintiff's response to those allegations, the court decided he would permit the expert to testify the next day. Although the judge had already made findings regarding plaintiff's credibility, he stated he intended to rely on the expert. "I can't be any blunter than I just don't believe him. He's already proven that. I don't believe a word he says." However, he concluded, "On the child issues, I think it's a little separate because I'm going to hear from an expert . . . and I'll make a decision based upon what the experts tell me and let that go from there." The judge then predicted what his decision would be. Addressing defense counsel, the judge stated, "I expect to make a decision tomorrow on the custody. It's going to be somewhere between what your doctor is asking for and shared custody. I don't know where yet. I'm going to hear the facts and make the call[.]"

The next day, November 1, 2011, the judge provided his version of the proceedings to date, and again defended his decision to proceed with the trial and to compel plaintiff to proceed pro se. The judge stated that he was proceeding to hear custody because he now perceived there were emergent matters affecting the children's safety, based on defense counsel's representations of the expert's opinion.

Plaintiff pleaded with the court to adjourn the custody trial, stating he was ill-equipped to represent himself on what he called the most important issue in the case the custody of his children. He also challenged the assertion that there was an emergent threat to the children's safety. "[I]f there's egregious safety issues, and they're in danger, then absolutely, I agree [the case should be heard]. But, if that was the case, wouldn't anybody have petitioned the Courts if that was true?" The judge then responded that "they didn't say danger, they talked about issues involving the children's well-being." But, he stated it was his duty to address custody.

Plaintiff also noted that Cockerill had requested a continuance before the trial began in order to enable plaintiff to respond to Dr. Davenport's report. Plaintiff also asserted that he would be prejudiced by his inability to explain the testimony about financial transactions, which the court had concluded was not credible. Plaintiff argued that the court had promised him an opportunity to "cross-examine [him]self" but failed to do so. The court insisted that it would look at the custody issues "with a clean slate."

The court then commenced the custody trial by allowing defense counsel to call Dr. Davenport. Consistent with his report, Dr. Davenport opined that primary residential custody should be awarded to defendant.

Plaintiff cross-examined the witness for the balance of the day and into the next day. The court admitted the expert's report into evidence over plaintiff's objection. The parties also testified. After summations by defense counsel and plaintiff, defense counsel submitted two certifications of legal services in support of defendant's application for the award of fees.

On November 3, 2011, the court issued a lengthy oral opinion granting defendant primary residential custody. The court found Dr. Davenport to be "extremely credible." The judge "adopt[ed] . . . Dr. Davenport's opinion that mom is more fit to raise these children at this point in time than dad." Although plaintiff disagreed with Dr. Davenport's recommendation and sought an adjournment to consider hiring a responding expert, the court referred to the fact plaintiff and defendant had jointly retained Dr. Davenport. The court repeatedly referred to plaintiff's lack of credibility.

The parties' oldest child, then eleven, had told Dr. Davenport, "'I just want equal time with both parents.'" Dr. Davenport suspected the child's preference resulted from plaintiff's suggestion, from overhearing conversations by plaintiff, or direct coaching. Without interviewing the child, the court found the doctor's suspicions were correct. Based on the poor communications between the parties, and the presence of civil restraints, the court concluded the parties would not be able to cooperate to the extent necessary to make a shared parenting arrangement succeed.

The court also directed plaintiff to pay to defendant $2,450, which represented two-thirds of the cost of Dr. Davenport's expert fee; and $15,780, which represented two-thirds of defendant's counsel fees. In awarding fees, the court relied on, in part, defendant's success in the custody trial. He also found plaintiff has the ability to contribute to defendant's fees. "It's not like he has an attorney that he's paying." The court did not expressly consider the fact that plaintiff had incurred $27,575 in fees to Cockerill before trial, of which less than $9,000 was unpaid.

This appeal followed.5

II.

The court mistakenly exercised its discretion in denying an adjournment to enable plaintiff to retain substitute counsel, and in proceeding to try the custody case.

A.

Our analysis is grounded in the principle that "the request for an adjournment is addressed to the trial judge's discretion[.]" Kosmowski v. Atlantic City Med. Ctr., 175 N.J.568, 575 (2003); see alsoAllegro v. Afton Village Corp., 9 N.J.156, 161 (1952); Smith v. Smith, 17 N.J. Super.128, 131-32 (App. Div. 1951), certif. denied, 9 N.J.178 (1952); Pepe v. Urban, 11 N.J. Super.385, 389 (App. Div. 1951).

"[J]udicial discretion" is the option which a judge may exercise between the doing and the not doing of a thing which cannot be demanded as an absolute legal right, guided by the spirit, principles and analogies of the law, and founded upon the reason and conscience of the judge, to a just result in the light of the particular circumstances of the case.

 

[Smith, supra, 17 N.J. Super.at 132 (citations omitted).]

 

We therefore review a court's denial of an adjournment for an abuse of discretion. Id.at 131, 133-34 (stating court reviews trial court for "mistaken exercise of discretion"). Abuse of discretion "defies precise definition." Flagg v. Essex Cnty. Prosecutor, 171 N.J.561, 571 (2002). However, to command our deference, "the court must provide factual underpinnings and legal bases supporting the exercise of judicial discretion." Clark v. Clark, 429 N.J. Super.61, 72 (App. Div. 2012). We will reverse a discretionary decision "when the stated 'findings were mistaken[,] . . . the determination could not reasonably have been reached on sufficient credible evidence present in the record[,]' or the judge 'failed to consider all of the controlling legal principles.'" Ibid.(quoting Gonzalez-Posse v. Ricciardulli, 410 N.J. Super.340, 354 (App. Div. 2009); see alsoFeigenbaum v. Guaracini, 402 N.J. Super.7, 17 (App. Div. 2008) (stating an abuse of discretion occurs "when a decision is made without a rational explanation, inexplicably depart[s] from established policies, or rest[s] on an impermissible basis." (citations and quotations omitted)).

In order to reverse a judge's discretionary decision we must also find resulting prejudice. Smith, supra, 17 N.J. Super.at 132-33. Consequently, we will reverse a mistaken denial of an adjournment where an injustice has been done. Allegro, supra, 9 N.J.at 161.

The court's discretion to grant or deny a continuance is not unfettered. "Judicial discretion is not unbounded and it is not the personal predilection of the particular judge." State v. Madan, 366 N.J. Super. 98, 109 (App. Div. 2004). To determine whether to grant or deny an adjournment, the court must balance the needs of expedition, with the interests of reaching a just result on the merits. In Allegro, supra, the Court reversed a trial court's order dismissing a complaint, which could have been avoided had the court granted an adjournment: "While the expedition of business and the full utilization of their time is highly to be desired, the duty of administering justice in each individual case must not be lost sight of as their paramount objective." 9 N.J. at 161. See also Waters v. Island Transp. Corp., 229 N.J. Super. 541, 552 (App. Div. 1989) (reciting same principle in reversing, as abuse of discretion, refusal to adjourn); Pepe, supra, 11 N.J. Super. at 389 (same); cf. Kosmowski, supra, 175 N.J. at 574 (endorsing "'the salutary principle that the sins of the advocate should not be visited on the blameless litigant'" (quoting Aujero v. Cirelli, 110 N.J. 566, 573 (1988))); cf. Lang v. Morgan's Home Equip. Corp., 6 N.J. 333, 339 (1951) (reversing dismissal of party's counterclaim, stating such drastic remedy should be reserved for cases of "deliberate and contumacious" violation of court processes). The court should consider whether steps short of denial of adjournment would be sufficient to address the prejudice to the non-requesting party. Cf. Kosmowski, supra, 175 N.J. at 575 (stating the dismissal instead of adjournment should "normally be ordered only when no lesser sanction will suffice to erase the prejudice suffered by the non-delinquent party" (citation and quotation omitted)).

Our Court has identified numerous factors relevant to a court's determination whether to grant a continuance to allow a criminal defendant to retain or substitute counsel.

Some of the factors to be considered in the balance include the length of the requested delay; whether other continuances have been requested and granted; the balanced convenience or inconvenience to the litigants, witnesses, counsel, and the court; whether the requested delay is for legitimate reasons, or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance; whether the defendant has other competent counsel prepared to try the case, including the consideration of whether the other counsel was retained as lead or associate counsel; whether denying the continuance will result in identifiable prejudice to defendant's case, and if so, whether this prejudice is of a material or substantial nature; the complexity of the case; and other relevant factors which may appear in the context of any particular case.

 

[State v. Hayes, 205 N.J. 522, 538 (2011) (quoting State v. Furguson, 198 N.J. Super. 395, 402 (App. Div.) (quoting United States v. Burton, 584 F.2d 485, 490-91 (D.C. Cir. 1978), cert. denied, 439 U.S. 1069, 99 S. Ct. 837, 59 L. Ed. 2d 34 (1979)), certif. denied, 101 N.J. 266 (1985)).]

We recognize a matrimonial litigant does not enjoy a constitutional right to counsel equal to that of a criminal defendant. SeeIn re Estate of Schifftner, 385 N.J. Super.37, 44-45 (App. Div.) (stating that generally there is no constitutional right to counsel in civil cases), certif. denied, 188 N.J.356 (2006). Nonetheless, the factors Burtonidentified may inform a considered exercise of discretion to grant or deny a continuance in a civil case when a party seeks to retain or change counsel. SeeBenson v. Sebelius, 771 F. Supp. 2d 68, 78 (D.D.C. 2011) (applying Burtonto civil case).

B.

Applying the foregoing principles, we conclude the court mistakenly exercised its discretion in denying a continuance to enable plaintiff to retain substitute counsel.

In the days following the denial, in response to plaintiff's repeated requests that the court reconsider, the judge justified his decision to relieve plaintiff's attorney on the grounds that he made it clear that plaintiff would be required to represent himself, and he relieved Cockerill only after she conferred with him at the court's direction. However, as the colloquy we have quoted indicates, plaintiff agreed that communications with Cockerill had broken down; and he did not believe continuing the relationship was in his interest. Only after the judge elicited from plaintiff that he wished to discharge Cockerill, the judge advised him that he would need to represent himself and there would be no adjournment. The court also relieved Cockerill beforeasking her to confer with plaintiff, to transfer the file.

Defendant had a due process right to be represented by counsel if he wished. SeeFranklin v. Sloskey, 385 N.J. Super.534, 540-41 (App. Div. 2006).6 The court should have clearly and fully advised plaintiff of the consequences of his decision to relieve counsel beforeinquiring whether he wished to discharge his attorney. SeeD.N. v. K.M., __ N.J. Super.__, __ (App. Div. 2013) (slip op. at 23-24) (finding court adequately questioned domestic violence litigant regarding waiver of counsel, where court reviewed possible consequences); see alsoMazdabrook Commons Homeowners' Ass'n v. Khan, 210 N.J.482, 505-06 (2012) (stating waiver of constitutional right must be knowing, intelligent and voluntary).

The court also failed to adequately weigh the prejudice to plaintiff if the request were denied, and the prejudice to defendant if it were granted. As we discuss below, plaintiff suffered substantial prejudice as a result of representing himself. However, the prejudice to defendant from granting the adjournment was remediable. In response to Cockerill's motion to withdraw, defendant opposed an adjournment because of inconvenience. She had scheduled time off from work, and had already prepared for trial, as did her expert. However, all of these consequences could have been offset by a compensatory monetary sanction.

The court also relied upon the need to resolve cases on its calendar, and the age of this case. The judge asserted he would have no other case to try if the matter were adjourned, and therefore precious trial time would be wasted. We appreciate the scarcity of trial time. However, trial courts routinely schedule a "back-up trial" to assure that if one case does not proceed, trial time is not unused. We note that the October 24, 2011 trial date was the first trial date in the case. There had been no prior adjournments, except for the two-day delay for plaintiff's family matter.

The court made no record-based finding that plaintiff was at fault for the falling out between himself and Cockerill. We discern no evidence that plaintiff discharged Cockerill and sought an adjournment in a contrived effort to delay trial for delay's sake. Cockerill was plaintiff's attorney for over a year. He had paid her firm a substantial amount of fees. It was only on the Friday before trial that he lost confidence in her and "fired" her. However, it appears the court ultimately decided that plaintiff was to blame, concluding without evidence that he fired Cockerill because "[h]e didn't like what Ms. Cockerill told him[.]"

The court also mistakenly exercised its discretion when it summarily denied plaintiff's request on the second day of trial to reconsider its decision to release Cockerill. The court simply stated it was too late. However, there is no basis in the record to conclude that was true. Cockerill stated she was prepared to proceed to trial. While she made it clear in arguing to be relieved that she would object to being forced to represent a client who did not want her, she may well have been willing to return in view of plaintiff's renewed desire to work with her. Given the change in plaintiff's attitude, at the very least, the court should have permitted plaintiff to request Cockerill to resume her representation.

Having concluded the court mistakenly exercised its discretion, we turn to the issue of prejudice. We conclude the prejudice to plaintiff was profound. Based on our careful review of the record, plaintiff repeatedly demonstrated he was ill-equipped to represent himself. He surrendered his opportunity to present his case by essentially throwing up his hands, relying on his complaint and any other materials submitted by his prior attorney, and then resting. As a witness on financial issues, he was defensive and unfocused. In the custody trial, plaintiff pursued numerous potentially fruitful avenues in cross-examination of Dr. Davenport and defendant, but he did so inartfully, often argumentatively, and ultimately unsuccessfully. He failed to present witnesses or introduce documentary evidence to support his position on contested facts.

A new trial is necessary as well because we conclude the court erred in conducting the custody trial. The judge's initial instinct to recuse himself from the case entirely, after his involvement in the settlement discussions, was the correct one, because he had prematurely formed conclusions about plaintiff's credibility, and the merits of his position. It is the loss of neutrality that disqualified the judge from proceeding to determine the issues in dispute. Judges as triers of fact should not make fact-findings before the presentation of all the evidence. SeeState v. Aikens, 401 N.J. Super.298, 308-09 (App. Div. 2008) (reversing and remanding court's order to suppress evidence where court did not permit the State to present all its evidence).

Before the custody trial began, the court had already stated, in blunt and conclusive terms, that he found plaintiff not to be a credible witness. The court reached that conclusion based on its view of plaintiff's candor regarding the settlement discussions, and the court's assessment of plaintiff's partial testimony on financial issues. The court expressed, in advance of trial, he intended to rely on the expert, and would not grant shared custody but, at most, approve an arrangement that fell somewhere between the parties' two positions.

Given our conclusions, we also reverse and remand the court's allocation of the cost of the expert, and the award of attorney's fees. First, a principal factor in the court's award of attorney's fees was defendant's success on the merits of the hearing. SeeR.5:3-5(c)(7) (including "the results obtained" as a factor in the amount of a fee award). Second, the court did not consider the fact that plaintiff had paid substantial fees of $27,575 to his former attorney, and still owed almost $9,000, which affected his ability to pay two-thirds of defendant's fees and the fairness in requiring him to do so.

In light of our decision to reverse on the foregoing grounds, we do not reach plaintiff's argument that the court erred in denying an adjournment for the separate reason that Dr. Davenport's report was served late, and plaintiff needed time to evaluate it and potentially retain a responding expert.

Reversed and remanded for a new trial on custody before a different judge. We do not retain jurisdiction.

1 The letter is not included in the record.

2 The trial transcript inaccurately refers to defendant-wife as plaintiff.

3 The record does not reflect whether the tentative agreement covered all issues, or just financial issues.

4 Although the transcript indicates that Ms. Olszewski spoke on the record here, we suspect this comment was made by defense co-counsel, Angie Gambone.

5 While this appeal was pending, the parties resolved issues of equitable distribution, and a different judge tried remaining financial issues of alimony and support and entered a final judgment of divorce, which is not the subject of an appeal.

6 We do not suggest that he was entitled to the appointment of counsel if he could not afford one. Cf. D.N. v. K.M., __ N.J. Super. __, __ (App. Div. 2013) (slip op. at 19) (finding no right to appointment of counsel in civil domestic violence trial).