AILEEN R. SCHWARTZ v. ALAN SUSSMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5833-11T1

AILEEN R. SCHWARTZ,

Plaintiff-Respondent,

v.

ALAN SUSSMAN,

Defendant-Appellant.

_______________________________________________

August 26, 2013

Submitted August 6, 2013 - Decided

Before Judges Lihotz and Guadagno.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1612-97.

Alan Sussman, appellant pro se.

Aileen R. Schwartz, respondent pro se.

PER CURIAM

Defendant Alan Sussman appeals from the June 15, 2012, order directing that he pay various expenses of the parties' child and setting a new child support obligation. On appeal, defendant claims the motion judge demonstrated racial bias in issuing this order as well as in prior orders; demonstrated an "indifference to due process"; and failed to consider defendant's financial hardship. We have considered these arguments in light of the facts and applicable law and reject them as having no merit.

We glean the following facts from the record. The parties divorced in 1998. They had one child and entered into a consent order in 2003, which resolved custody of the child as well as various support issues. Since then, the parties have returned to court frequently to resolve matters including visitation, child support and payment of child-related expenses.

On June 15, 2012, both parties appeared, self-represented, before the motion judge on plaintiff's motion to enforce prior orders. During oral argument, both parties demonstrated a lack of decorum and respect for the court, interrupting each other and the judge frequently. At one point, after an interruption, the judge instructed defendant to "[l]et me finish before you keep cutting me off." As the judge was speaking, he was interrupted again by defendant, then by plaintiff. After the judge asked the parties again to let him finish, he was interrupted by plaintiff twice. In two pages of transcript, as the judge was attempting to address the issues raised by the parties, he was interrupted by both parties twenty times.

When defendant accused plaintiff of prolonging the litigation because "she doesn't give a darn what the [effects] are on her daughter," the court cautioned him:

Well, let's not get into the personal part of it. I hear this every time. And you know you know I don't I respect both of you all, but to get into this personal, it doesn t move it along.

The parties continued to interrupt the judge until a court officer intervened and told them to speak, "[o]ne at a time." The instruction had no effect, and the parties continued to speak over each other until the court clerk interrupted them and repeated the court officer's warning, again, to no avail.

This led to the judge's attempt to intervene:

THE COURT: Stop, stop, stop. Wait one second. One second.

MR. SUSSMAN: I mean, all it does is create more bad blood.

THE COURT: The bottom line the bottom line is this. The bottom

MS. SCHWARTZ: Can I respond, please?

THE COURT: No, no.

MS. SCHWARTZ: I was talked over immediately.

THE COURT: No, no. You cannot respond. I'm talking now. You cannot respond.

When defendant interrupted plaintiff again and ignored the court's direction to "[l]et her finish," the court threatened sanctions:

Mr. Sussman. Mr. Sussman, you know what I'm going to start doing? I'll tell you what I'm going to start doing when both of you are cutting across. I have a record, and I've been keeping notes of all the times everybody been cutting across me all these different proceedings. I've been keeping all of that. And I've been more than respectful to both of you all. You keep cutting me off. And if you all keep cutting me off I'm just going to hold people in contempt. I'm going to start doing it, because I've kept a record. I'm very familiar what the law is with that. It's disrespectful that you cut the [c]ourt off. I could care less if you respect me personally. I really don t. But you have to respect the process. And it's disrespectful for you all to continually do it as if I'm not here half of the time. I've got orders in front of me.

. . . .

So, all of this continually, you know, cutting across, I'm really getting tired of it. And I would say I'm probably the most even-tempered judge in this building, but I'm really getting tired of it, because you all constantly and consistently do it. Constantly and consistently. It's disrespectful to the [c]ourt.

Like I said, I could care less if you respect me personally, because I'm going to do what I do every day, because the system we're being fair and impartial and respectful to people who walk in here. And I have some of the most difficult cases in this whole building, particularly now that I'm the presiding judge. But that consistently cutting across, that's going to stop. I'm going to start holding people in contempt for that. I'm going to start holding people in contempt. And I can do that consistent with the rules, because I've been keeping a record of it. And when I do I'm going to go back and recount all the times in support of it.

Now, do I want to do that? No, I do not. I know there's a lot of emotion in this case. I know that. But as a judge, I have a responsibility, and I can't do my responsibility if you all are going to keep cutting across. It's disrespectful. It's disrespectful. It really is.

The court then told the parties, while unruly behavior might be expected from some litigants who appear before him, the judge expected more from them, because they were educated and familiar with court proceedings:

It's not like you all -- look, when I get some families in here, frankly, no disrespect, I'm from Camden, but I expect them to do certain things, because that's the way they are. But with both of you all, who are individuals, you know, who are educated, and people who understand the process, notwithstanding the emotion, to continually do that, it's more than I get from a lot of my other clients. And it's disturbing.

Defendant claims these comments were "racially insensitive" and "demonstrate a bias in [the court's] thinking and treatment of the parties . . . in clear violation of Due Process." We disagree and find this argument is clearly without sufficient merit to warrant discussion in a written decision beyond these brief comments. R. 2:11-3(e)(1)(e).

"[D]ignity, order, and decorum [are] the hallmarks of all court proceedings in our country." Illinois v. Allen, 397 U.S. 337, 343, 90 S. Ct. 1057, 1061, 25 L. Ed. 2d 353, 359 (1970). The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. Ibid. It is well established that a trial court "has the authority as well as the duty to keep the arguments of [the parties] . . . within the limits of courtroom decorum." Roberts Electric, Inc. v. Foundations & Excavations, Inc., 5 N.J. 426, 430 (1950).

The Family Part judge noted that these parties were unusual as they refused to agree on any of the contested issues. The judge noted that even in high-conflict matrimonial cases, with "multi-million dollar estates . . . [there is] always some resolution of some of the issues." The judge found in this case, "a hundred percent of the issues [were] constantly argued" and "[w]hat happens every time is just motion, after motion, after motion, after motion. [There is] never any effort to resolve anything."

The transcript of what should have been a routine enforcement motion comprised sixty-eight pages. Rarely was the judge able to speak more than a few sentences without being rudely interrupted by one of the parties. Repeated warnings by the judge not to interrupt, were ignored by both parties.

We find nothing racially insensitive or biased in the judge's comments comparing these litigants to some of the less experienced and uneducated parties that appear before him, and remarking that he expected more from them. The behavior of both parties here was discourteous and disrespectful, not only to the judge but to the office he holds. Litigants who appear in our court, including self-represented parties, are required to display "a courteous and respectful attitude not only towards the court but towards opposing . . . parties . . . ." In re Vincenti, 92 N.J. 591, 603 (1983). "Respect for and confidence in the judicial office are essential to the maintenance of any orderly system of justice." Ibid.

The decision of the motion judge, who displayed the patience of Job, to only threaten and not impose sanctions was an exercise of restraint and judiciousness.

A