Opinion
DOCKET NO. A-5586-12T1
08-28-2015
MICHAEL DIPPEL, Plaintiff-Appellant, v. JANINE DIPPEL, Defendant-Respondent.
Linda Couso Puccio argued the cause for appellant (Fiorello, Puccio & Fiorello LLC, attorneys; Michael Dippel, on the pro se brief). Elizabeth Szabo argued the cause for respondent (Legal Services of Northwest Jersey, attorneys; Ms. Szabo, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Rothstadt. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-0239-11. Linda Couso Puccio argued the cause for appellant (Fiorello, Puccio & Fiorello LLC, attorneys; Michael Dippel, on the pro se brief). Elizabeth Szabo argued the cause for respondent (Legal Services of Northwest Jersey, attorneys; Ms. Szabo, on the brief). PER CURIAM
Plaintiff Michael Dippel appeals a June 13, 2013 final judgment of divorce (FJOD) that was entered by default on defendant Janine Dippel's counterclaim after his complaint was dismissed with prejudice.
We refer to the parties by their first names for ease of readership. We intend no disrespect.
Michael instituted the divorce proceedings in November 2010, and, on March 21, 2012, the court dismissed his pleadings without prejudice for failure to comply with discovery. On July 27, 2012, the court denied Michael's application to vacate the default and granted him until August 16, 2012 to provide discovery. That order was a consent order. On November 16, 2012, Michael again made an application to vacate the default, which was denied. The court advised Janine, in Michael's presence, that she could proceed with default proceedings pursuant to her counterclaim since Michael did not comply with discovery.
Trial commenced on June 5, 2013. The court stated the parties were married in a religious ceremony in Andover on September 14, 1996, and two children were born of the marriage. Janine's counterclaim for divorce was based on irreconcilable differences, which the court found as grounds for divorce. At trial, the judge advised Michael that "your pleadings are dismissed. You have no affirmative case. All you can do is cross-examine her." Trial continued on June 6 and ended on June 13. At the conclusion of the trial, the judge again noted that the court had dismissed Michael's pleadings and suppressed his defenses to the counterclaim.
The trial judge thoroughly placed on the record the history of Michael's "failure to comply with discovery. There were several attempts to get him to comply with discovery." It was only after Michael's continuous non-compliance that the order dismissing his pleadings, without prejudice, was entered on March 21, 2012. Michael then engaged an attorney and attempted to have his pleadings reinstated.
On November 16, 2012, his pleadings were dismissed with prejudice. The judge stated "[t]o make sure that the record is clear as to why that occurred . . . because the court found that one need only look at his updated case information statement to know that he had still not complied with discovery." The judge then proceeded with a lengthy factual catalogue of all of the discovery items not produced by Michael. The court stated "that while the [c]ourt agreed that every party should be given every opportunity to be a participant in the proceeding and the litigation, the [c]ourt found that [Michael] had done nothing but obstruct any meaningful ability for [Janine] to be able to understand the finances pre- and post- separation." Default was entered because of Michael's continuous, repeated failure to comply with Janine's right to discovery. As her counsel stated at the start of trial, "after plaintiff's pleadings were dismissed, we made it clear that if he provided the information, we would consent to vacate the default. And we worked very hard, but we never received any of the information."
The court then proceeded to adjudicate custody, parenting time, alimony, and child support. The court did not address equitable distribution of property, determining that any proceeds from the sale of assets, including the sale of the former marital residence, shall be held in escrow. The FJOD was entered on June 13, 2013.
Michael filed a pro se "brief" before us. Even viewed indulgently, Michael has not complied with the Rules of Court. Michael has included in his brief evidentiary material not in the record below and which will not be considered by us in our review. See R. 2:5-4; N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). Additionally, the contents of Michael's brief do not comply with Rule 2:6-2. However, we are able to glean from what appears to be a point heading the issue which he would like to raise on appeal, that is, "I ask that appeal court judge looks at my entire case altogether. I tried my best to separate the issues but it was not possible. There's a lot of information that intertwines." Further, in his conclusion, he requests that we terminate his alimony, modify his child support obligations, and address parenting time. However, Michael does not directly challenge the dismissal of his complaint for failure to comply with discovery.
Normally, "the rule in New Jersey is that a direct appeal will not lie from a judgment by default." N.J. Div. of Youth & Family Servs. v. T.R., 331 N.J. Super. 360, 363 (App. Div. 2000); see also McDermott v. Patterson, 122 N.J.L. 81, 84 (E. & A. 1939); Walter v. Keuthe, 98 N.J.L. 823, 824 (E. & A. 1923).
"The reason underlying this rule is that the very theory and constitution of a court of appellate jurisdiction is only the correction of errors which a court below may have committed, and a court below cannot be said to have committed an error when its judgment was never called into exercise, and the point of law was never taken into consideration, but was abandoned by acquiescence or default of the party who raised it."See also In re Estate of Siegel, 214 N.J. Super. 586, 591 (App. Div. 1987). In Walter, the Court of Errors and Appeals acknowledged that the Constitution gives a party the right to appeal, but the right "is to be enjoyed and exercised, subject to the regulations of law, and to the rules and practices of the court." Walter, supra, 98 N.J.L. at 825 (citation and internal quotation marks omitted). "The proper course was for [Michael] to apply to the trial court for relief from the default judgment pursuant to [Rule] 4:50-1 where he was obligated to demonstrate both excusable neglect and a meritorious defense." T.R., supra, 331 N.J. Super. at 364.
[T.R., supra, 331 N.J. Super. at 364 (quoting Haber v. Haber, 253 N.J. Super. 413, 416 (App. Div. 1992)).]
However, Michael did not acquiesce in the entry of default or fail to take any action in the trial court. Cf. id. at 363 (the defendant failed to appear for trial and took no action to challenge the resulting default judgment in the trial court); Haber, supra, 253 N.J. Super. at 415 (same). Rather, Michael challenged the default, and called into question the trial court's subsequent exercise of judgment in his motions to vacate the default.
The trial court's interlocutory orders denying those motions became appealable when the court entered the final judgment by default. See N.J. Mfrs. Ins. Co. v. Prestige Health Grp., LLC, 406 N.J. Super. 354, 357-59 (App. Div.), certif. denied, 199 N.J. 543 (2009). Thus, Michael could challenge those rulings in an appeal from the final judgment by default without filing a motion to vacate that judgment under Rule 4:50-1, which otherwise "provides a defaulting party with a remedy." Haber, supra, 253 N.J. Super. at 416-17. "[T]he stringent constraints imposed on final judgments and orders under Rule 4:50-1 (grounds for relief from judgment) are wholly inapplicable to interlocutory orders." Lombardi v. Masso, 207 N.J. 517, 534 (2011) (citing Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257-64 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988)).
Michael has not appealed the orders but has in effect requested the right to present his case which we will treat as an appeal of those orders. In his "brief," he offers "[w]hy default should have been lifted," stating "Judge never explained dismissal or default procedure to me." However, Michael offers no support in the record for this assertion.
The decision to deny a motion to reinstate a complaint dismissed for failure to provide discovery lies within the discretion of the motion judge. St. James AME Dev. Corp. v. City of Jersey City, 403 N.J. Super. 480, 484 (App. Div. 2008); Cooper v. Consol. Rail Corp., 391 N.J. Super. 17, 22 (App. Div. 2007). It is well-established that the main objective of the two-tier sanction process in Rule 4:23-5 is to compel discovery responses rather than to dismiss the case. See Sullivan v. Coverings & Installation, Inc., 403 N.J. Super. 86, 96 (App. Div. 2008); Pressler and Verniero, Current N.J. Court Rules, comment 1.1 on R. 4:23-5(a) (2015). However, in our view, the Rule continues to serve the interests of promoting compliance with discovery obligations, providing relief to the party whose discovery requests remain unsatisfied, and implementing the court's need to manage and expedite litigation. We discern no abuse of discretion or failure by the court to comply with the two-tier sanction process in Rule 4:23-5.
Finally, in the interest of thoroughness, we address the FJOD. First, Michael includes in his appendix numerous documents which are not part of the record and which will not be considered by us. It does not appear from the record the inclusion is the result of the confusion of a pro se litigant since, by order dated October 31, 2014, we denied Michael's request to supplement the record.
Because it is important that the parties understand our limited role in reviewing Family Part judgments, we begin by explaining some of the well-established principles that guide us. We give considerable deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009). When a Family Part judge has made findings of fact after considering the testimony and documents the parties have presented during a non-jury trial, the judge's findings are generally "binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
That is so "[b]ecause of the family courts' special jurisdiction and expertise in family matters." Id. at 413. Just as important, the trial judge is in the best position to make judgments as to whether witnesses are believable. Clark v. Clark, 429 N.J. Super. 61, 71 (App. Div. 2012). For those reasons, we will not reverse a trial judge's findings of fact unless they are "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 70 (quoting Rova Farms, supra, 65 N.J. at 484).
Unlike a trial judge's fact and credibility findings, the judge's "'interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). A trial judge "is in no better position than we are when interpreting a statute or divining the meaning of the law." D.W. V. R.W., 212 N.J. 232, 245 (2012). As such, we review the legal issues anew. Id. at 245-46.
"A Family Part judge has broad discretion in setting an alimony award," Clark, supra, 429 N.J. Super. at 71, and appellate courts will not intervene unless the trial court "clearly abused its discretion, failed to consider all of the controlling legal principles, made mistaken findings, or reached a conclusion that could not reasonably have been reached on sufficient credible evidence present in the record after considering the proofs as a whole." J.E.V. v. K.V., 426 N.J. Super. 475, 485 (App. Div. 2012). "When analyzing whether permanent alimony is appropriate, the trial court is required to make findings of fact and to state specific reasons in support of its conclusion." Gnall v. Gnall, ___ N.J. ___, ___ (2015) (slip op. at 15). Whether alimony should be awarded is governed by distinct, objective standards defined by the Legislature in N.J.S.A. 2A:34-23(b). When alimony is requested, the statute requires that the court "consider and make specific findings on the evidence" regarding the statutory factors relevant to the particular alimony award. N.J.S.A. 2A:34-23(c).
N.J.S.A. 2A:34-23(c) was amended on September 10, 2014 to specify that "[f]or any marriage or civil union less than 20 years in duration, the total duration of alimony shall not, except in exceptional circumstances, exceed the length of the marriage or civil union." L. 2014, c. 42, § 1. The amendment is not applicable to this case. --------
When determining child support awards, "the trial court has substantial discretion." Gotlib v. Gotlib, 399 N.J. Super. 295, 308 (App. Div. 2008); see also Pascale v. Pascale, 140 N.J. 583, 594 (1995). A child support award that is consistent with the applicable law "'will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice.'" Gotlib, supra, 399 N.J. Super. at 309 (quoting Foust v. Glaser, 340 N.J. Super. 312, 315-16 (App. Div. 2001)).
We pause to point out that "[p]arties are required to make an adequate legal argument." 700 Highway 33 LLC v. Pollio, 421 N.J. Super. 231, 238 (App. Div. 2011). Conclusory assertions that a judge committed error, devoid of reference to the judge's decision or the trial record, and further devoid of any attempt to apply applicable precedent to the factual underpinnings of such conclusory assertions, do not satisfy this requirement. Ibid.; see also State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977). Michael did not make an adequate legal argument.
Applying these standards to the judge's detailed findings, there is no basis for disturbing the court's alimony or child support determinations.
Having said that, we have, nevertheless, reviewed defendant's remaining arguments and find them to be without sufficient merit to warrant extended discussion in a written decision. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION