MARC ROSS v. MAUREEN L. REPMANN ROSS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3992-11T4

MARC ROSS,

Plaintiff-Respondent,

v.

MAUREEN L. REPMANN ROSS,

Defendant-Appellant.

_______________________________________

November 15, 2013

Argued October 8, 2013 Decided

Before Judges Koblitz and O'Connor.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-442-11.

Theodore Sliwinski argued the cause for appellant.

Donald Schumacher argued the cause for respondent (Weinstein Lindemann & Weinstein, attorneys; Mr. Schumacher, of counsel and on the brief).

PER CURIAM

Defendant Maureen Repmann Ross challenges rulings made by the trial court before and during the trial in this action for divorce, as well as in the judgment of divorce, entered on February 27, 2012. After reviewing the record, the positions of the parties, and the applicable law, we reverse.

The first issue defendant raises in this appeal is that the trial court improperly denied her request to temporarily suspend the divorce trial after she informed the court she had a medical condition which precluded her from being present during the trial. After denying defendant's adjournment request, the court continued and concluded the trial in defendant's absence.1

The record reveals that the judge granted defendant four requests to adjourn the trial, which finally commenced on January 10, 2013. Just before plaintiff Marc Ross called his first witness, defendant advised the court she was having a "medical emergency," but was "perfectly willing to stay under the circumstances." During the remainder of the day defendant did not request an adjournment or any other kind of accommodation pertaining to any medical problem. The trial was scheduled to resume two days later, on January 12, 2012.

The following day, defendant's doctor faxed from his office directly to the trial court's chambers a signed note2, dated January 11, 2012, which was handwritten on a sheet from a prescription pad. The note stated:

[Defendant] is suffering from menorrhagia3 Started hormonal treatment today. I advise bed rest for then [sic] next 2-3 days, until her bleeding stops.

Defendant appeared in court on January 12, 2012 and requested that the trial be adjourned based upon the note from her doctor. The judge denied the request, stating:

I'm going to put . . . on the record, the reasons why; this court this may be the first time probably is the first time I've denied a request for an adjournment based on medical reasons, or alleged medical reasons. The reason I'm doing it is [because] this case has a long and tortured history where this is a pattern of behavior on your part, where every time we approach resolving the case, there are requests for adjournments either based on discovery, based on health reasons, based on every reason under the sun; and this is, in the court's opinion, just the latest attempt to delay the inevitable, by you.

And in addition, the note, it's a handwritten note on a prescription pad. It doesn't tell me if he examined you, it doesn't tell me if his diagnosis was based on your self-reporting, it doesn't tell me a whole lot of anything.

For all I know, you went and told him you were having a problem, didn't feel well [and] he said, fine, go to bed for two days; as opposed to conducting an exam, giving me a diagnosis, telling me what it's based on. And I think my impression and also, it came in after 4 o'clock yesterday, which is also highly convenient, from your point of view. And that's why we're going to proceed today.

Of course, it you need a few minutes, here and there to attend to your health, you just let me know, and we'll take all reasonable adjournments. But we are going to proceed today.

After additional colloquy, defendant told the court she did not feel well enough to remain. Plaintiff did not object to the requested delay. The court advised that if defendant left the court room, the trial would continue. Defendant then left, and the trial continued. Plaintiff completed introducing evidence in his case that day and, as defendant was not in attendance to present her case, the trial ended.

On February 27, 2012, the trial court issued a written decision setting forth his findings of facts and conclusions of law based upon the evidence introduced during the trial, and entered a Judgment of Divorce the same day. Defendant argues the Judgment of Divorce must be vacated and the matter remanded for a new trial. She contends it was error for the judge to have denied her request for an adjournment of the trial on January 12, 2012, as her physician had provided a note to the court stating she needed bed rest because of a medical condition. We agree.

A trial court's decision to grant or deny an adjournment is reviewed under an abuse of discretion standard. State v. D'Orsi, 113 N.J. Super 527, 532 (App. Div.), certif. denied, 58 N.J. 335 (1971). Here, the note defendant's doctor faxed to the court identified the condition from which defendant was suffering and specified the treatment required (bed rest for two to three days, or until the bleeding stopped). The judge questioned the legitimacy of the treatment the doctor recommended, because the note did not indicate whether the doctor had physically examined defendant or whether his conclusions and recommendation were based merely upon defendant's "self-report."

What information the doctor needed to have before making his recommendation is not common knowledge. See Kelly v. Berlin, 300 N.J. Super. 256, 268 (App. Div. 1997) (Without the aid of expert testimony, a fact-finder should not draw conclusions on matters about which laypersons could not be expected to have sufficient knowledge.). Without input from a medical expert, or the doctor himself, the judge did not know that the doctor possessed insufficient information to have given the advice he did. Information other than that derived from a physical examination or defendant's subjective comments about her physical condition, such as her medical history, could well have played a role in the doctor's decision to recommend bed rest. Absent further inquiry, such as a telephone call to the doctor in the presence of the parties and on the record, the judge should not have concluded the treatment the doctor ordered was invalid.

The trial court also discounted the worthiness of the note because it was handwritten on a sheet from a prescription pad. There is, however, nothing about a handwritten note which undermines the substantive content of such note, per se. Certainly, the fact the note was handwritten does not detract from its authenticity. Further, the printed information on the prescription sheet was similar to that typically included by medical professionals. The prescription sheet set forth the name of the medical group, the addresses and telephone numbers of the group's various office locations, and the names of the physicians in the group (which included the name of the doctor who signed the subject note).

We appreciate the judge was frustrated and skeptical whether defendant's fifth request for an adjournment was genuine. It was appropriate for the judge to have scrutinized the circumstances under which defendant's request was made. As the judge put it in his February 27, 2012 written opinion, the trial in this matter was "delayed by a preternatural correlation between the scheduled trial dates and declines in defendant's health that required adjournments."

We are mindful there are litigants who stoop to unscrupulous conduct in an endeavor to delay court proceedings. We do not suggest there are not instances when there is a reasonable basis to reject the authenticity of a doctor's note or the legitimacy of a doctor's recommendation that a litigant be excused from appearing in court. Each case is fact sensitive and must be examined on its own merits.

Here, however, there was not a reasonable basis to reject as unreliable the note from the doctor indicating defendant was suffering from a malady requiring bed rest. Given the absence of any evidence the doctor and defendant colluded to "game the system" or that the contents of the note were otherwise unworthy of belief, it behooved the judge to grant a short adjournment of the trial until defendant was well enough to attend court. Under the factual circumstances presented, we are constrained to conclude that the denial of the adjournment request was a mistaken exercise of discretion. Given our disposition, we need not reach the other points raised by defendant in this appeal.

1 Defendant was unrepresented and thus an attorney was not present to represent her interests.

2 Plaintiff filed a motion to dismiss the appeal and defendant cross-moved for supplementation of the record. We denied the motion and reserved on the cross-motion, which we now grant and consider the doctor's note, as it, although not marked as an exhibit, was specifically addressed by the judge during the divorce trial. See R. 2:5-5(a).

3 Menorrhagia is the medical term for abnormally profuse menstrual flow. Webster's Ninth New Collegiate Dictionary 741 (9th ed. 1988).