MYRA P. DIDONATO VS. GEORGE v. DIDONATOÂ (FM-11-0713-05, MERCER COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-3465-15T2
MYRA P. DIDONATO,
Plaintiff-Respondent,
v.
GEORGE V. DIDONATO,
Defendant-Appellant.
___________________________
Submitted October 11, 2017 - Decided November 6, 2017
Before Judges Hoffman and Mayer.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Mercer County,
Docket No. FM-11-0713-05.
George V. DiDonato, appellant pro se.
Respondent has not filed a brief.
PER CURIAM
Defendant George V. DiDonato appeals from a March 18, 2016
order1 of the family court denying his motion seeking various
relief. We affirm.
1
Defendant purports to appeal from orders dated August 24, 2015,
October 16, 2015, and January 13, 2016. We note that defendant
Plaintiff Myra P. DiDonato and defendant were married in
April 1991. The parties were divorced and a dual judgment of
divorce (DJOD) was entered on August 14, 2008. Since the entry
of the DJOD, defendant has filed thirty-five motions. Defendant's
motions pursued the same claims and requested the same relief.
On September 15, 2015, defendant filed an order to show cause
requesting plaintiff's payment of the college tuition balance for
their youngest daughter. Defendant's application also sought
plaintiff's income tax returns and custody of their youngest
daughter.
Defendant's show cause application was converted to a motion
and heard on December 21, 2015. Unbeknownst to the motion judge,
defendant had appealed a prior order of another family court judge.
The judge dismissed defendant's motion without prejudice due to
the pending appeal. Defendant withdrew his appeal, which was
dismissed on January 22, 2016.
One week after dismissal of his appeal, defendant filed a
motion on short notice requesting the relief sought in his
September 2015 application.
On March 18, 2016, the judge ruled on defendant's application.
In addition to her review of the motion papers, the judge reread
failed to file notices of appeal within forty-five days as to
those orders. See R. 2:4-1(a).
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the extensive case file, including the record from the seventeen
day divorce trial and defendant's thirty-five prior motions. Based
on her analysis of defendant's motion, the judge concluded that
the relief sought had been denied previously by another judge.
The judge found that the case involved "a situation of a vexatious
litigant who keeps coming back . . . to try to get relief that has
already been denied by prior orders and prior judges." The judge
denied defendant's motion in its entirety because defendant failed
to demonstrate changed circumstances justifying his renewed
application. The judge also ordered that future motions submitted
by the parties would require leave of the court prior to filing.2
On appeal, defendant argues the following: the assigned
family court judges had ex parte communications with plaintiff and
plaintiff's attorney, failed to read defendant's motion papers,
and committed unspecified violations of the court rules and ethics
rules; defendant was not given an opportunity to respond to
plaintiff's motions; and the judge who signed the March 18, 2016
order caused defendant undue duress.
Self-represented litigants are required to comply with the
court rules the same as litigants who are represented by counsel.
2
The judge's oral ruling required both parties to seek leave of
court before filing future motions. However, the written order
imposed this requirement as to defendant only.
3 A-3465-15T2
Rubin v. Rubin, 188 N.J. Super. 155, 159 (App. Div. 1982). On
appeal, defendant failed to comply with the court rules by untimely
filing an appeal as to certain orders, raising issues on appeal
that were not raised before the family court, and including
improper material in his appellate brief and appendix.
Appeals from final judgments of courts must be taken within
forty-five days of their entry. R. 2:4-1(a). Defendant's notice
of appeal was filed on April 21, 2016. Only the March 18, 2016
order was appealed within the required forty-five day time period.
We decline to consider issues related to the orders dated August
24, 2015, October 16, 2015, and January 13, 2016, because defendant
failed to file timely notices of appeal from those orders.3
On appeal, defendant raises several new issues not presented
to the family court. Issues not raised below may be considered
on appeal under the plain error rule. We consider errors not
brought to the trial court's attention if the errors have a clear
capacity to produce an unjust result. See R. 2:10-2; see also
3
Defendant's arguments related to the August 24, 2015, October
16, 2015, and January 13, 2016 orders include the following:
failure to consider new legislation terminating alimony based on
cohabitation, ex parte communications between plaintiff and the
judges assigned to the case, failure to serve papers on defendant,
judicial bias, and new evidence.
4 A-3465-15T2
N.J. Div. of Youth and Family Servs. v. B.H., 391 N.J. Super. 322,
343 (App. Div.), certif. denied, 192 N.J. 296 (2007).
Defendant fails to identify the specific errors committed by
the family judges, as well as the "unjust result" from such errors.
Defendant's dissatisfaction with the judges' decisions is not
"error." His frustration with prior orders does not evidence a
clear capacity to produce an unjust result. Rather than cite
specific errors allegedly committed by the family court judges,
defendant speculates that denial of his motions was due to improper
ex parte communications between plaintiff and the family court
judges and the failure of the family court judges to read or
consider his submissions. Defendant provides no support for his
allegations.
In his appeal, defendant raises the issue of judicial bias,
a matter not raised before the family court. Our court rules
provide that a judge shall be disqualified "when there is any . . .
reason which might preclude a fair and unbiased hearing and
judgment, or which might reasonably lead counsel or the parties
to believe so." R. 1:12-1(g). A party may file a motion to
disqualify a judge for alleged bias in accordance with Rule 1:12-
2. Defendant never moved to disqualify the family court judges
assigned to his case. As a reviewing court, we are constrained
to review orders issued by the Superior Court trial divisions.
5 A-3465-15T2
See R. 2:2-3(a)(1). Because defendant never filed a motion to
disqualify the family court judges assigned to this matter, there
is no order for our review.4 See Zamboni v. Stamler, 199 N.J.
Super. 378, 383 (App. Div. 1985) (holding an appellate court's
jurisdiction not properly invoked to render an advisory opinion
or to decide cases in the abstract, without a developed factual
basis).
Defendant also includes improper material in his appellate
papers. An appellate appendix shall contain the order appealed
from and any such other parts of the record "as are essential to
the proper consideration of the issues" on appeal. R. 2:6-1(a)(1).
Defendant's appendix includes orders and motions dating as far
back as the DJOD without explaining how those materials are
essential to our consideration of his appeal. We are unable to
consider unrelated materials in defendant's appellate submission.
Additionally, defendant argues "undue duress" as a result of
the judge's sanction requiring leave of court prior to filing
future motions. "The court has the inherent power to protect
itself and litigants against harassment and vexatious litigation
4
Defendant also raises for the first time in his appeal that venue
in this matter should be transferred. Motions to transfer venue
are governed by Rule 4:3-3. Similar to his judicial bias claim,
defendant failed to file a motion to transfer venue so there is
no order for our consideration.
6 A-3465-15T2
and an abuse of process." Triffin v. Automatic Data Processing,
Inc., 394 N.J. Super. 237, 252 (2007) (quoting Atkinson v.
Pittsgrove Twp., 193 N.J. Super. 23, 32 (Ch. Div. 1983)). A court
should exercise its discretion to limit a litigant's ability to
present a claim sparingly, reserved to those situations where the
judge found past pleadings to be frivolous and tried to abate such
abuse by employing appropriate sanctions. Parish v. Parish, 412
N.J. Super. 39, 54-55 (App. Div. 2010).
In Parish v. Parish, we held that the motion judge erred by
restricting the parties' exercise of the right to file motions in
the absence of "a specific finding of the need to control frivolous
or vexatious litigation." Parish, supra, 412 N.J. Super. at 44.
While "complete denial of the filing of a claim without judicial
review of its merits would violate the constitutional right to
access of the courts," courts have "the inherent authority, if not
the obligation, to control the filing of frivolous motions and to
curtail 'harassing and vexatious litigation.'" Id. at 48 (quoting
Rosenblum v. Borough of Closter, 333 N.J. Super. 385, 387 (App.
Div. 2000)). In Parish, we emphasized that "enjoining the filing
of motions should be considered only following a determination
that the pleadings demonstrate the continuation of vexatious or
harassing misuse of judicial process.” Id. at 58.
7 A-3465-15T2
Findings by the family court judges are binding on appeal
when supported by "adequate, substantial, credible evidence."
Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We "should not
disturb the 'factual findings and legal conclusions of the trial
judge unless . . . convinced that they are so manifestly
unsupported by or inconsistent with the competent, relevant, and
reasonably credible evidence as to offend the interests of
justice'" or when the court has palpably abused its discretion.
Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co.,
65 N.J. 474, 484 (1974)). Since judges assigned to the family
court have special expertise in family matters, a family judge's
fact-finding should be accorded deference on appeal. Id. at 413.
We agree with the family court judge that defendant is a
vexatious litigant, as evidenced by his thirty-five motions
asserting the same claims and demanding the same relief. Defendant
repeatedly failed to make a prima facie showing of changed
circumstances justifying the requested relief. See Lepis v. Lepis,
83 N.J. 139, 157-59 (1980). It is within the court's power to
impose sanctions on a self-represented party for frivolous
litigation. Zehl v. City of Elizabeth Bd. of Educ., 426 N.J.
Super. 129, 141 (App. Div. 2012) ("Judges retain the inherent
authority to impose reasonable conditions on motion practice to
8 A-3465-15T2
allow for appropriate case management and the efficient and
effective administration of the case.")
In this case, because defendant is indigent and receives
disability, the judge properly recognized that money sanctions
would have been unfair. As the usual form of deterrence would
have economically disadvantaged defendant, the judge, after
reviewing the entire file and finding that defendant’s repetitive
and constant motions were vexatious, appropriately tailored her
order by requiring leave of court before defendant could file
future motions.5
We find that the judge's sanction was a suitable exercise of
judicial discretion imposed to ensure that defendant refrains from
filing repetitive motions and was not an abuse of discretion.
Similarly, we find that the judge's order dated March 18, 2016,
was supported by competent and credible evidence as defendant
failed to make a prima facie showing of changed circumstances
entitling him to the requested relief.
Affirmed.
5
According to the transcript of the March 18, 2016 motion hearing,
plaintiff had not filed a motion for "nearly a decade," and had
no opposition to the judge's ruling that neither party would be
permitted to file future motions absent leave of court.
9 A-3465-15T2