Lisa Ippolito v. Tobia Ippolito , 443 N.J. Super. 1 ( 2015 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4840-13T1
LISA IPPOLITO,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
November 9, 2015
v.
APPELLATE DIVISION
TOBIA IPPOLITO,
Defendant-Appellant.1
_______________________________________________________
Argued October 27, 2015 – Decided November 9, 2015
Before Judges Fisher, Rothstadt and Currier.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Morris County, Docket No. FM-14-147-13.
Angelo Sarno argued the cause for appellant
(Snyder & Sarno, LLC, attorneys; Tobia
Ippolito, on the pro se brief).
William M. Laufer argued the cause for
respondent (Laufer, Dalena, Cadicina, Jensen
& Boyd, LLC, attorneys; Mr. Laufer, of
counsel; Kimberly Gronau Boyd and Carly
DiFrancisco, on the brief).
The opinion of the court was delivered by
FISHER, P.J.A.D.
1
Although this appeal arises from a summary contempt proceeding
initiated by the trial judge pursuant to Rule 1:10-2 – and thus,
should bear a caption in the form designated in Rule 1:10-2(a) –
we utilize the caption in the related matrimonial action because
the order that has been appealed was so captioned.
In this three-year old matrimonial action, the family judge
instituted this contempt proceeding, pursuant to Rule 1:10-2,
against defendant Tobia Ippolito upon the judge's receipt of a
letter from counsel for plaintiff Lisa Ippolito; the letter
asserted that defendant had violated the terms of a February 20,
2014 order, which prohibited defendant from "threatening or
intimidating any expert in this matter." Because the judge
erred by presiding over the very contempt proceeding he
initiated, we vacate the order under review and remand the
contempt proceeding to the trial court; the assignment judge is
directed to forthwith designate a judge to preside over the
contempt proceeding.
Having concluded that the matter must begin anew with
another judge, we need not engage in an extensive discussion of
the underlying circumstances. As noted, defendant had been
ordered not to "threaten" or "intimidate" any expert based
apparently on what the family judge perceived to be a pattern of
such conduct when the matter was handled by another family judge
who had recused himself. In responding to this appeal,
plaintiff has regaled us with many of these earlier
circumstances. These prior events may constitute relevant
evidence in the contempt proceedings that will follow today's
remand, but they have no bearing on the primary question before
2 A-4840-13T1
us – whether the family judge who initiated the contempt
proceeding should have presided over the trial of that matter.
There was a time when a hard-and-fast rule prohibited the
initiating judge from presiding over a summary contempt
proceeding. See In re Fair Lawn Educ. Ass'n, 63 N.J. 112, 115,
cert. denied, 414 U.S. 855, 94 S. Ct. 155, 38 L. Ed. 2d 104
(1973); City of Bridgeton v. Jones, 228 N.J. Super. 325, 336-38
(App. Div. 1988). As we observed in Warren County Community
College v. Warren County Board of Chosen Freeholders, 350 N.J.
Super. 489, 512 (App. Div. 2002), aff’d in part, modified in
part, 176 N.J. 432 (2003), before the 1994 amendment to Rule
1:10-2, "[i]t was reversible error for the same judge to hear
the [summary contempt] proceedings." See also City of
Bridgeton, supra, 228 N.J. Super. at 337 (finding it "fatally
defective" for the initiating judge to preside over a summary
contempt proceeding). This approach was adopted chiefly because
of the potential for arbitrariness when a judge acts as
"complainant, prosecutor, judge and executioner." In re
Buehrer, 50 N.J. 501, 514 (1967). As explained by Chief Justice
Weintraub:
With respect to procedural antidotes, our
practice in contempt matters is calculated
to limit the risk of arbitrariness and the
appearance of arbitrariness. So, for exam-
ple, when the charge is a violation of a
court order, the penal proceeding may not be
3 A-4840-13T1
heard by the judge whose order was allegedly
contemned unless the defendant consents to
his sitting. Thereby obviated is the risk
which inhered singularly in the contempt
area when the offended judge sat in judgment
of his own charge.
[Fair Lawn Educ. Ass'n, supra, 63 N.J. at
115 (citations omitted).]
Since 1994, however, Rule 1:10-2(c) (emphasis added) requires
only that "[t]he matter shall not be heard by the judge who
instituted the prosecution if the appearance of objectivity
requires trial by another judge."2 We are, therefore, required
to consider whether "the appearance of objectivity" prohibited
what occurred here.
As the record reveals, the judge's April 16, 2014 order to
show cause was prompted not only by the April 15, 2014 written
complaint of plaintiff's counsel regarding defendant's
communication with a custody expert, but also the suit's prior
history, which had led to orders limiting or prohibiting such
communications. The order to show cause also appears to have
issued before defendant had an opportunity to explain or
respond. This sudden leap from a complaining letter of
matrimonial counsel to the commencement of summary contempt
proceedings might alone suggest the appearance of objectivity
2
The prior versions of the Rule prohibited a judge from
presiding over the summary contempt proceeding without
exception.
4 A-4840-13T1
had been lost. But, even if that were not so, we are satisfied
from the events that followed that the judge erred in presiding
over the summary contempt proceeding he initiated.
We examine this question by first acknowledging that "[t]he
summary prosecution of a contempt committed outside the presence
of the court is inherently a highly sensitive matter," and, for
that reason, warrants "scrupulous attention to the procedural
safeguards embodied by the rules." City of Bridgeton, supra,
228 N.J. Super. at 335. Our review is de novo for these very
reasons.3 Here, the judge opened the contempt proceeding –
before even inviting the appearances of counsel – with a
statement describing the proceeding by stating that he had
directed defendant to
show cause before this [c]ourt why his
failure to comply with the [c]ourt's [o]rder
of February 20, 201[4,] in addition to
numerous prior court orders[,] which
prohibited [d]efendant from directly
contacting any experts in this matter[,]
would not be subject to me holding him in
contempt.
3
Because of concerns about the arbitrariness of the power of
summary contempt, appellate review is immediately available as
of right, R. 2:2-3(a)(1), and execution of sentence is
automatically stayed for five days following its imposition or,
if an appeal is taken, during the pendency of the appeal, R.
1:10-2 (incorporating the stay provisions of the rule applicable
to contempt in the presence of the court, R. 1:10-1), although
bail may be required if reasonably necessary.
5 A-4840-13T1
Now, let's be clear. Counsel is here,
and we'll have your appearances in a minute.
But I note . . . [c]ounsel is here. I note
that the parties are here. And when I
direct this following comment at Mr.
Ippolito –
I direct this at you, sir, with all due
respect. I am not here to find you in
contempt. I am here to find out if you are
in contempt. Understand that? Big
difference. Yes? No? All right. Well,
we'll get to that in a minute. You want to
talk to your lawyer, no problem. That was a
pretty basic question.
So, let's have Mr. Ippolito sworn.
After defendant was sworn as directed by the judge, and after
the attorneys gave their appearances, the judge then turned to
defense counsel and said
So what I want you to do, Mr. Donahue, right
now is your client is here in the [witness]
box. He is here to tell me why he should
not be held in contempt. All right? So
please question him and he'll be cross-
examined as we see fit.
Although the transcript lacks the dynamics of a live
presentation, the first few pages of the transcript are
nevertheless palpable; the judge spoke directly at defendant and
made clear that defendant was there to explain his conduct. The
procedural safeguards contained in Rule 1:10-2 are, as we have
mentioned, intended to avoid the inherent arbitrariness of a
summary contempt proceeding. The utilization of all those
safeguards ensures the "appearance of objectivity." Their
6 A-4840-13T1
absence, as readily revealed by the judge's opening comments,
calls into question the objectivity of the proceedings.
For example, because the commencement of a proceeding
pursuant to Rule 1:10-2 constitutes a charge of criminal conduct
– "[t]he essence of the offense is defiance of public
authority," In re Yengo, 84 N.J. 111, 120 (1980), cert. denied,
449 U.S. 1124, 101 S. Ct. 941, 67 L. Ed. 2d 110 (1981) –
defendant was entitled to most of the safeguards accorded
criminal defendants, with the exception of the right to
indictment and the right, in some cases, to a jury trial.
Defendant was entitled to "the presumption of innocence, the
privilege against self-incrimination, the right of cross-
examination, proof of guilt beyond a reasonable doubt, and the
admissibility of evidence in accordance with the rules of
evidence." Ibid.
The importance of these rights is further illuminated by
their historical underpinnings. Similar circumstances prompted
Justice Frankfurter to observe that "[b]itter experience has
sharpened our realization that a major test of true democracy is
the fair administration of justice," and that "[i]t is not for
nothing that most of the provisions of our Bill of Rights are
concerned with matters of procedure." Sacher v. United States,
343 U.S. 1, 23-25, 72 S. Ct. 451, 462-63, 96 L. Ed. 717, 731-32
7 A-4840-13T1
(1952) (dissenting opinion); see also Burdeau v. McDowell, 256
U.S. 465, 477, 41 S. Ct. 574, 576, 65 L. Ed. 1048, 1051 (1921)
(in which Justice Brandeis noted in his dissent that "in the
development of our liberty insistence upon procedural regularity
has been a large factor"). By directing defendant to take the
oath and respond to the unsworn allegations conveyed by
counsel's letter that led to the contempt proceeding, the judge
sought defendant's waiver of his right against self-
incrimination. And, by requiring that defendant testify first –
asserting that "[defendant] is here to tell me why he should not
be held in contempt" – the judge mistakenly assumed defendant
was saddled with the burden of proving his innocence. The judge
was greatly mistaken in this regard; it was the prosecution's
burden to demonstrate defendant was in contempt beyond a
reasonable doubt.4 With one swift direction at the start of the
proceeding, the judge deprived defendant of the presumption of
innocence.5
4
Interestingly, the judge called no other witnesses to testify –
not even the expert who was allegedly threatened or intimidated
by defendant's communication.
5
To be sure, the judge concluded in his written opinion that
defendant "intentionally" violated "the intent and the spirit"
of the February 20, 2014 order. That is not the same as finding
that defendant intentionally acted beyond a reasonable doubt.
To the contrary, the entire tenor of the proceeding and the
content of the judge's written opinion suggests to us – in
(continued)
8 A-4840-13T1
Defendant emphasizes another procedural safeguard bypassed
here. Rule 1:10-2(c) declares the proceeding "may be prosecuted
on behalf of the court only by the Attorney General, the County
Prosecutor of the county, or where the court for good cause
designates an attorney, then by the attorney so designated"
(emphasis added). No attorney was designated. Instead, the
judge seems to have largely prosecuted the matter himself; he
directed that defendant testify first and, after defendant was
briefly examined by his own attorney and then briefly by
plaintiff's attorney, the judge extensively cross-examined.
Despite the Rule's unambiguous declaration as to whom may
prosecute such a matter, the judge took on that role. Contrary
to law, the judge who instituted the action became "complainant,
prosecutor, judge and executioner." Buehrer, supra, 50 N.J. at
514.
If there was any question about the "appearance of
objectivity" before the proceeding began, the judge's comments
at the outset and the proceedings themselves eliminate any
doubt.6 The judge's written decision, which explained the basis
(continued)
reviewing the matter de novo – that the judge failed to apply
the reasonable-doubt standard.
6
We would note that the form of the order to show cause is also
problematic. Although an alleged contemnor has no constitutional
(continued)
9 A-4840-13T1
for his finding of contempt, was the judge's own expression of
the reasons for the contempt proceedings. He stated that the
history of prior difficulties with experts led to his concern
when plaintiff's counsel wrote to him about defendant's
communication with an expert; the judge opined in his written
decision that "yet another expert had been made uncomfortable
and was potentially poised to resign from his role in this
case."7
For these reasons, we conclude the "appearance of
objectivity" required that a different judge preside over the
trial of the summary contempt proceedings.
We lastly consider plaintiff's argument that what occurred
was not actually a summary contempt proceeding but a proceeding
of the type permitted by Rule 1:10-3. That argument is without
sufficient merit to warrant further discussion in a written
opinion. R. 2:11-3(e)(1)(E). We would add only that it is
(continued)
right to indictment, Yengo, supra, 84 N.J. at 120, he does have
a right to notice of the charges. The assertion that defendant
violated both the February 20, 2014 order and "addition[al]
numerous other prior [c]ourt [orders]" was insufficient to put
defendant on notice of what he was being asked to defend
against. At the very least the earlier orders that the judge
believed had been violated should have been specified.
7
There was no proof to support that contention. The expert was
never called to testify about his alleged discomfort.
10 A-4840-13T1
clear from everything the judge said8 and wrote9 with regard to
this proceeding – except the caption used on the order under
review – that the judge believed he was conducting a summary
contempt proceeding.10 The word "contempt" is repeated
throughout the hearing11 when describing the nature of the
8
Toward the end of the April 23 hearing, the judge and defense
counsel engaged in a colloquy about the nature of the
proceeding. When defense counsel argued that he did not
anticipate that testimony would be taken, asserting
"[g]enerally, [t]estimony isn't taken on [o]rders to [s]how
[c]ause," the judge responded: "Well, on a contempt hearing
testimony is taken, Frank . . . . [T]his was an order to hear a
contempt citation" (emphasis added). There is no question that
the judge realized this was a summary contempt proceeding and
not a Rule 1:10-3 proceeding.
9
In fact, the judge revealed his awareness of these inherently
different proceedings in his written opinion when he stated that
"[a] contempt of court may be considered an offense against
governmental authority, and may be punished criminally[,]" but,
"[o]n the other hand, 'a proceeding to afford a litigant
supplemental relief from an adverse party's failure to obey a
court's order is civil.'" In short, the judge clearly
demonstrated his understanding of the difference; we therefore
decline to view the proceedings as a de facto Rule 1:10-3
hearing when the judge intended no such thing.
10
Although a court may conduct a hearing pursuant to Rule 1:10-3
simultaneously with a Rule 1:10-2 proceeding — as the last
sentence of Rule 1:10-3 makes clear — this may only occur with
the consent of the parties and, even then, the provisions of
Rule 1:10-2(c) must still be honored.
11
Even though courts occasionally refer to the conduct that
would support Rule 1:10-3 relief as "civil contempt," see
Anyanwu v. Anyanwu, 339 N.J. Super. 278, 290 (App. Div. 2001),
certif. denied, 170 N.J. 388 (2001), that Rule is better
understood and described without utterance of the word
"contempt," see Ridley v. Dennison, 298 N.J. Super. 373, 381
(continued)
11 A-4840-13T1
proceeding and uttered more than a dozen times in the judge's
ten-page written opinion. The preamble of both the order to
show cause and the order that concluded the matter invoked Rule
1:10-2, and the judge, in his opinion, cited only to Rule 1:10-2
as the authority upon which the proceeding was based; he also
cited numerous cases that dealt with the summary contempt power,
demonstrating a clear understanding of the difference between
the proceedings permitted by Rule 1:10-2 and those authorized by
Rule 1:10-3. On the other hand, Rule 1:10-3 was never mentioned
(except to distinguish it from the summary contempt procedure)
or cited either during the hearing or in the judge's written
opinion or final order.
The May 7, 2014 order under review is vacated. We remand
to the assignment judge for the designation of another judge to
preside over the summary contempt proceeding instigated by the
order to show cause entered on April 16, 2014, and for further
proceedings in conformity with this opinion. We do not retain
jurisdiction.
(continued)
(App. Div. 1997); Bd. of Educ., Twp. of Middletown v. Middletown
Twp. Educ. Ass'n, 352 N.J. Super. 501, 508-09 (Ch. Div. 2001).
12 A-4840-13T1