MARK J. MOLZ v. THERESA MITCHELL
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1151-20
MARK J. MOLZ,
Plaintiff-Appellant,
v.
THERESA MITCHELL,
f/k/a THERESA MOLZ,
Defendant-Respondent.
_________________________
Argued March 21, 2022 – Decided April 7, 2022
Before Judges Rose and Enright.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Mercer County,
Docket No. FM-11-0626-12.
Mark J. Molz, appellant, argued the cause pro se.
Andrew L. Rochester argued the cause for respondent
(Morgenstern & Rochester, attorneys; Andrew L.
Rochester, on the brief).
PER CURIAM
In this post-judgment matrimonial matter, plaintiff Mark J. Molz appeals
from the October 14 and December 11, 2020 orders entered in favor of his ex -
wife, plaintiff Theresa Mitchell (f/k/a Molz). We affirm, substantially for the
reasons outlined in the cogent oral opinions accompanying the challenged orders
entered by Judge Catherine Fitzpatrick.
The parties were married in 1994 and have two adult daughters. Their
marriage ended in January 2018 with the entry of a judgment of divorce (JOD).
Plaintiff, a practicing attorney, appealed from the JOD. In part, he challenged
Judge Fitzpatrick's awards of alimony, equitable distribution, and counsel fees
to defendant. He also appealed from two post-judgment orders dated May 14,
and September 17, 2018, which enforced the JOD and held him in contempt.
We affirmed the JOD and contested orders. Molz v. Molz, No. A-2888-
17 (App. Div. May 1, 2020). The Supreme Court denied plaintiff's petition for
certification. 244 N.J. 163 (2020).
In July 2020, plaintiff filed a post-judgment motion requesting: the right
to buy out defendant's share of equity in the former marital home and the parties'
office property based on appraisals he secured; a credit for payments defendant
received from a certain bank account as of 2011, which he claimed were "never
credited through Probation" against his support obligation; and a reservation of
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"all rights and positions" if the Supreme Court granted his then-pending
certification petition.
One month later, defendant filed a cross-motion, seeking to enforce the
JOD, as well as certain post-judgment orders, and requesting the denial of
plaintiff's motion. 1 Within weeks of hearing argument, the judge rendered an
oral opinion on the cross-applications and entered the October 14 order, denying
plaintiff's motion in its entirety and granting the bulk of defendant's enforcement
motion.
In denying plaintiff's request to buy out defendant's one-half share of the
equity in the former marital home, the judge stated:
This prayer for relief is just a clear example of
the disingenuous filing by [plaintiff] with regard to
obtaining subsequent appraisals, which the court issued
an order saying he's not to do that.
....
[Plaintiff] completely ignores other post-
judgment orders submitted by this court. If the house
value has gone down, it's only as a result of his delay
tactics, when this house should have been put on the
market or he should have done the buyout a long time
ago.
1
The court-appointed receiver also filed a cross-motion, opposing plaintiff's
application and seeking to enforce prior orders.
A-1151-20
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And he has clearly not been taking care of the
property . . . . He has committed waste on the property
....
....
This also applies to his . . . application . . . to
purchase the defendant's interest in the office property
....
....
So [plaintiff] continues his course of action
which is defying court orders and continuing to keep
this litigation going, all to the detriment, clearly, of the
defendant.
The judge further observed that to effectuate the sale of the former marital home,
she previously had authorized the court-appointed receiver "to evict the
[p]laintiff and drill the locks if necessary" and "require[d] the marital residence
to be maintained in a show ready condition."
Regarding plaintiff's request to be credited for monthly annuity payments
defendant received from a certain bank account, the judge acknowledged
plaintiff was due a credit to offset the monthly alimony he was obliged to pay
through the Probation Department. But the judge stated, "plaintiff is not going
to get the credit until he complies with the prior court orders . . . all of which
required [him] to direct payment of [his] two annuities to Probation." She
explained, "[a]s soon as the plaintiff complies with [this order], the credit will
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be calculated by the defendant and she shall provide notice to the Probation
Department of the credit." Because plaintiff had been ordered multiple times to
have his annuity payments forwarded to the Probation Department, the judge
also announced plaintiff's "continued contempt and failure to direct payment of
two annuities through the Probation Department will result in a daily sanction
against [him] until [he] complies with this order." In fact, the judge granted
defendant's request for a daily sanction of $250 "until such time as plaintiff
comes into compliance with all provisions of the order from this motion."
Finally, the judge denied as moot plaintiff's request to preserve his "rights and
positions" during the pendency of his Supreme Court petition because by then,
his petition had been denied.
Regarding defendant's cross-motion, and pertinent to this appeal, the
judge granted defendant's requests that plaintiff: immediately sell the marital
home and office property, and keep them in show ready condition until their
sale; vacate the marital home and have other resident occupants do the same
within thirty days; pay the carrying costs on properties subject to equitable
distribution; provide proof of life insurance per the JOD; pay defendant $9,000,
representing half of the parties' loss from a delayed boat sale; pay defendant half
of certain sailboat proceeds and satisfy various boat-related debts; reimburse
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defendant $2,000 in appraisal fees; forfeit a $2,500 deposit for failing to
complete the purchase of certain motor vehicles; pay sanctions of $250 per day
pending compliance with existing orders; satisfy outstanding counsel fee
awards; and pay defendant an additional counsel fee of $3,327.50.
The judge also granted the receiver's request to enforce a May 15, 2020
order requiring "plaintiff to turn over all business records for all businesses [in]
which plaintiff claims an interest . . . ." Further, the judge ordered plaintiff to
provide proof of the mortgage debt on the office property, given he claimed the
debt was marital but defendant alleged the debt was fraudulent.
Plaintiff moved for reconsideration and a stay of the October 14 order. He
certified he was unable to vacate the former marital home with his daughters
within thirty days and had "serious concerns" about moving out during the
pandemic. Additionally, he claimed the business records ordered to be released
to the receiver could not be turned over because the business entities did not
consent to producing this information. Plaintiff made this representation as the
attorney for the entities.
Defendant filed a cross-motion, opposing plaintiff's application; the
receiver filed a certification opposing plaintiff's motion, but did not object to
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giving plaintiff more time to move from the marital home, considering the
deadline for plaintiff's move had passed.
Shortly before the return date of the cross applications, plaintiff sent Judge
Fitzpatrick a letter — not a filed formal motion — asking the judge to recuse
herself based on a pending lawsuit he filed against her. When argument on the
motions commenced on December 4, 2020, the judge declined to recuse herself,
stating she could be impartial, and "it would be unduly unfair to [defendant] to
bring another judge into this longstanding litigation when this court knows . . .
all the applications that have been made . . . since 2014." Following argument,
the judge reserved decision on the formal motions.
On December 11, the judge issued an order denying plaintiff's
reconsideration motion and request for a stay. In the oral opinion she rendered
the same day, the judge found plaintiff had "provided no persuasive arguments
at all for th[e] court to reconsider [its] decision" from October 14. Further, she
noted the receiver had certified plaintiff remained in violation of court orders to
make various payments, provide documents, or maintain the marital home in
"show ready condition." The judge expressed regret at plaintiff's "continued
lack of candor with the court" and his "recalcitrant behavior for years,"
concluding defendant was "entitled to resolution of these equitable dis tribution
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issues." Still, she afforded plaintiff a brief extension of time to vacate the former
marital home. The judge also granted defendant's enforcement application and
awarded her counsel fees, referencing the level of income imputed to plaintiff
in the JOD and finding "the bad faith of [plaintiff] is clear."
On appeal, plaintiff argues the judge erred by: (1) denying him a credit
for annuity payments defendant received and ordering the assignment of his
premarital annuities to defendant; (2) directing him and the parties' daughters to
vacate the former marital home; (3) denying him a credit for carrying costs paid
on the home and office properties; (4) failing to hold a hearing regarding the
condition of the home; (5) ordering the office property's sale; (6) compelling the
production of corporate records; (7) crediting defendant for the loss of a boat
sale; (8) compelling him to forfeit a $2,500 deposit toward the purchase of
certain cars; (9) awarding defendant a $2,000 appraisal fee and counsel fees;
(10) imposing a $250 daily sanction; and (11) failing to recuse herself.
We start our analysis mindful that many of plaintiff's contentions were
previously raised and rejected by us when we affirmed the JOD, and the May
14, and September 17, 2018 orders. For example, we affirmed the May 14 order
directing plaintiff's two annuity payments to be paid through Probation to offset
his monthly alimony obligations and rejected his claim to receive credits for
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pendente lite payments beyond those already afforded to him. "If an issue . . .
has been determined on the merits in a prior appeal[,] it cannot be re-litigated in
a later appeal of the same case, even if of constitutional dimension."
Washington Commons, LLC v. City of Jersey City, 416 N.J. Super. 555, 564
(App. Div. 2010).
Further, it is clear to us plaintiff attempts to collaterally challenge recent
enforcement orders despite failing to appeal from earlier orders providing for
the same relief. By way of example, defendant failed to appeal from the June
25, 2018 order requiring him "to pay all carrying costs . . . associated with the
[marital] properties for as long as plaintiff retains access to the marital properties
referenced in the . . . [JOD]." Similarly, he did not appeal from two orders dated
May 15, 2020 directing him, in part, to: pay defendant a $9,000 credit for loss
of a boat sale; forfeit a $2,500 deposit if he failed to purchase certain motor
vehicles; reimburse defendant for a $2,000 appraisal fee; and "turn over all
business records for all businesses [in] which plaintiff claims an interest,
including, but not limited to, tax returns for the last ten years, . . . valuation s of
assets, [and] credit applications . . . ." Such untimely challenges to these rulings
are barred under Rule 2:4-1(a). Additionally, we are convinced each of
plaintiff's arguments lack merit. R. 2:11-3(e)(1)(E).
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We defer to the family court's factual findings if "supported by adequate,
substantial, and credible evidence in the record." D.A. v. R.C., 438 N.J. Super.
431, 451 (App. Div. 2014) (citing Cesare v. Cesare, 154 N.J. 394, 411-13
(1998)). However, we owe no deference to fact findings that are not based on
witness testimony or credibility findings. Yueh v. Yueh, 329 N.J. Super. 447,
461 (App. Div. 2000). We also review a Family Part's formulation of equitable
remedies to enforce one of its orders for an abuse of discretion. Milne v.
Goldenberg, 428 N.J. Super. 184, 197-98 (App. Div. 2012). The same standard
of review is applicable to orders denying reconsideration, Cummings v. Bahr,
295 N.J. Super. 374, 389 (App. Div. 1996), fee sanctions, Slutsky v. Slutsky,
451 N.J. Super. 332, 365 (App Div. 2017), and counsel fee awards, Tannen v.
Tannen, 416 N.J. Super. 248, 285 (App. Div. 2010), aff'd o.b. 208 N.J. 409
(2011). We review de novo the court's legal conclusions. Barr v. Barr, 418 N.J.
Super. 18, 31 (App. Div. 2011) (citing Zabilowicz v. Kelsey, 200 N.J. 507, 512-
13 (2009)).
The Family Part "possesses broad equitable powers to accomplish
substantial justice" and may tailor an appropriate remedy for violation of
its orders. Finger v. Zenn, 335 N.J. Super. 438, 447 (App. Div. 2000). In
addition, N.J.S.A. 2A:34-23 provides:
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[A]fter judgment of divorce . . . the court may make
such order as to the alimony or maintenance of the
parties . . . as the circumstances of the parties and the
nature of the case shall render fit, reasonable[,] and
just, and require reasonable security for the due
observance of such orders . . . . [O]r the performance
of the said orders may be enforced by other ways
according to the practice of the court.
Additionally, our Supreme Court has held "the trial court may exercise its
discretion to order the sale of marital assets and the utilization of proceeds in a
manner as 'the case shall render fit, reasonable, and just.'" Randazzo v.
Randazzo, 184 N.J. 101, 113 (2005). While Randazzo involved the sale of real
property prior to a final judgment of divorce, plaintiff makes no convincing
argument as to why the court's ability to fashion appropriate relief in
a divorce proceeding should be any less expansive where a party persists, after
entry of a JOD, in refusing to comply with orders establishing his
equitable distribution, alimony, and related obligations. See e.g., Slayton v.
Slayton, 250 N.J. Super. 47, 50 (App. Div. 1991) ("An item which was equitably
distributed may . . . be tapped as a fund out of which otherwise calculated
alimony may be satisfied.").
Further, "Rule 1:10-3 allows a court to enter an order to enforce litigant's
rights commanding a disobedient party to comply with a prior order" or face
sanctions. Milne, 418 N.J. Super. at 198. Sanctions under the Rule are intended
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to coerce a party's compliance. Ridley v. Dennison, 298 N.J. Super. 373, 381
(App. Div. 1997). See also R. 5:3-7 (outlining remedies a Family Part judge
may employ upon a finding of a violation of a judgment or order).
Next, per Rule 5:3-5(c), a judge has discretion to award counsel fees in a
matrimonial action, Tannen, 416 N.J. Super. at 285; such fees "are normally
awarded to permit parties with unequal financial positions to litigate (in good
faith) on an equal footing." J.E.V. v. K.V., 426 N.J. Super. 475, 493 (App. Div.
2012) (quoting Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch. Div. 1992)).
Where one party acts in bad faith, "the relative economic position of the parties
has little relevance because the purpose of the award is to protect the innocent
party from unnecessary costs and to punish the guilty party." Yueh, 329 N.J.
Super. at 461 (internal quotation marks omitted). Bad faith may consist of a
party's "constant disregard" of court orders, id. at 460, or the "intentional
misrepresentation of facts," Borzillo v. Borzillo, 259 N.J. Super. 286, 294 (Ch.
Div. 1992).
Regarding the issue of recusal, we observe Rule 1:12-2 provides, "[a]ny
party, on motion made to the judge before trial or argument and stating the
reasons therefor[e], may seek that judge's disqualification." (Emphasis added).
Motions for recusal must be made "directly to the judge presiding over the
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case." State v. McCabe, 201 N.J. 34, 45 (2010) (citing R. 1:12-2; Magill v.
Casel, 238 N.J. Super. 57, 63 (App. Div. 1990)). "They are entrusted to the
sound discretion of the judge and are subject to review for abuse of
discretion." Ibid. (citing Panitch v. Panitch, 339 N.J. Super. 63, 66, 71 (App.
Div. 2001)). As we explained to plaintiff when he argued for Judge Fitzpatrick's
recusal after entry of the JOD, "[b]ias cannot be inferred from adverse rulings
against a party." Molz, slip op. at 33 (quoting Strahan v. Strahan, 402 N.J.
Super. 298, 318 (App. Div. 2008)).
Governed by the standards we have outlined, we perceive no basis to
disturb either the October 14 or December 11 orders, particularly given
plaintiff's flagrant and longstanding refusal to comply with the JOD and
numerous post-judgment orders, including those he never challenged on appeal.
To the extent we have not specifically addressed plaintiff's remaining
arguments, we conclude they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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