M.A. VS. A.I. (FM-20-0973-09, UNION COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-4755-17T3
M.A.,1
Plaintiff-Respondent,
v.
A.I.,
Defendant-Appellant.
____________________________
Argued October 17, 2019 – Decided October 31, 2019
Before Judges Whipple and Mawla.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Union County, Docket
No. FM-20-0973-09.
A.I., appellant, argued the cause pro se.
M.A., respondent, argued the cause pro se.
PER CURIAM
1
We use initials in this opinion to be consistent with our prior appellate decision
in order to protect the children's privacy notwithstanding they are now adults.
Defendant appeals from a June 1, 2018 denial of his motion for
reconsideration of an April 20, 2018 denial of a motion for relief from judgment
and motion for recusal of the trial judge.
The parties were involved in an extensive and extended matrimonial
litigation dating back to 2009, which resulted in over 120 orders to date. The
litigation was bifurcated into two separate trials – one to determine the custody
and parenting time issues, M.A. v. A.I., No. A-4021-11 (App. Div. Dec. 15,
2014), and one to determine the financial issues, M.A. v. A.I., No. A-2800-13
(App. Div. April 4, 2017). The history of this case is fully recounted in our prior
decisions and need not be fully repeated here.
In sum, plaintiff and defendant married in Romania in 1989 and had two
children, both of whom are now adults. On January 7, 2009, plaintiff filed a
complaint for divorce based on irreconcilable differences. As a result of the
extensive number of motions filed, the trial court bifurcated the matter,
separating the custody and parenting claims from the financial claims. The
custody and parenting claims resulted in numerous orders and a twenty-three
day trial to determine if defendant alienated the children from their mother.
The trial included expert witnesses, resulting in high expert and counsel
fees for both litigants. The trial judge issued an order mandating, among other
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issues, therapy for the family and that defendant contribute to the cost.
Defendant appealed the trial court's decision. We reversed and remanded the
matter due to the trial court's impermissible reliance on parental alienation
syndrome, because the reliability and acceptance of the science undergirding the
theory was not established at trial.
We issued that decision on December 15, 2014. In the interim, the
bifurcated financial matters continued in litigation. On November 14, 2013,
following an eight-day trial, the court entered a final judgment of divorce. In
addition to ordering equitable distribution of the marital assets, the trial court
found plaintiff's legal fees approximated $797,278, of which $520,000 were
associated with the custody portion of the litigation, and defendant's legal fees
totaled $117,712 to two different attorneys. Because a significant portion of the
legal fees were incurred from enforcing various custody orders against
defendant and compelling his compliance with other court orders, the court
found defendant acted in bad faith and caused the protracted litigation in the
custody phase. As a result, the court held defendant responsible for $370,000
of plaintiff's legal fees, plus interest, for the custody phase of the divorce
litigation, as well as for all of the expert fees.
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After the court entered the final judgment for divorce in November 2013,
defendant moved for reconsideration, objecting to fourteen of the twenty-one
decisions rendered. On February 4, 2014, the court denied the motion for
reconsideration. Two days later, the court signed an amended judgment of
divorce clarifying the amount credited to each party, and the total amount
defendant owed plaintiff was $308,340, whereas plaintiff owed defendant
$43,596. Even after applying the amounts held in escrow for defendant's
obligations, $264,804 was still due.
Defendant appealed from the final judgment of divorce and the denial of
the motion for reconsideration. We affirmed the trial's court decision on April
4, 2017, after we determined the judge's findings were well supported by the
record. With respect to the legal fees and defendant's contentions of improper
bifurcation of the matters, we found no abuse of discretion.
Defendant appealed the matter to the New Jersey Supreme Court, and his
petition was denied. M.A. v. A.I., 233 N.J. 108 (2017). He then appealed to the
United States Supreme Court, and was denied certiorari. A.I. v. M.A., ___ U.S.
___, 138 S. Ct. 980 (2018). Following these denials, he returned to the Family
Part and moved for recusal of the judge as well as for relief from the financial
judgment. While he did not file a proper motion for recusal and instead sent a
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letter to the assignment judge, the trial judge nevertheless chose to address the
matter. Defendant contended the judge should recuse himself both because he
served in the Civil Division with a presiding judge whose wife was involved in
the underlying matrimonial litigation, and because defendant believed the judge
would hold him in contempt for his submission of inappropriate certifications.
The trial judge rejected the argument as specious and baseless, and so do we.
Pursuant to Rule 4:50-1, defendant argued he was entitled to relief from
the judgment of divorce because the financial determinations made therein were
made without knowledge of our decision reversing and remanding the custody
matter. Defendant asserted that because the original custody determination was
reversed, the apportionment of fees from the custody trial was inappropriate,
and plaintiff was therefore no longer entitled to the award of any fees based on
that trial. The trial judge denied the motion for relief from judgment, stating
one of the "basic concept[s] of the rule of law . . . is that litigants are entitled to
finality. . . . [M]atters decided by a [c]ourt are not subject to an . . . infinite
number of challenges to the decisions of the [c]ourt." He held the denial of
defendant's petition to the United States Supreme Court should have concluded
defendant's challenges to the four-year old order, and found "none of the reasons
outlined in [Rule] 4:50-1 support[] amending the judgment order." Ultimately,
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the trial judge rejected the motion because there was no basis for defendant's
application, and defendant was "not entitled to re-litigate the same matters over
and over again."
On May 7, 2018, defendant then moved for reconsideration pursuant to
Rule 4:49-2, which was also denied. The trial judge declined to hear oral
arguments on the matter, citing Kozak v. Kozak,2 holding a court need not grant
oral argument if satisfied the motion is made for the purpose of abusing the
judicial system and the other parties. He also denied oral argument because it
would be unproductive, given the motion did not properly present substantive
issues to the court, citing Palombi v. Palombi, 414 N.J. Super. 274, 285-88 (App.
Div. 2010). The trial judge again found defendant's motion to be specious, and
that the same arguments were already litigated and rejected by this court, and
further held the motion for recusal was baseless for the reasons given in his
decision on the initial motion. While the trial judge also found this matter to be
frivolous litigation under Rule 1:4-8, he declined to impose sanctions.
This appeal followed. Defendant raises the following issues on appeal.
POINT I. THE REVERSAL OF THE ATTORNEY
AND EXPERT FEES WAS DELAYED BECAUSE OF
THE FAILURE TO PROPERLY APPLY [RULE] 4.42-
9(D) AND AN IMPROPER BIFURCATION.
2
280 N.J. Super. 272 (Ch. Div. 1994).
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POINT II. THE REVERSAL OF THE ATTORNEY
AND EXPERT FEES IS GUARANTEED UNDER
[RULE] 4.50-1(E).
POINT III. APPARENT CONFLICT OF INTEREST
AND BIASED DECISIONS HAVE NEGATIVELY
AFFECTED THIS CASE.
We address each argument in turn. At the outset, we note res judicata bars
re-litigation of claims or issues already litigated. Velasquez v. Franz, 123 N.J.
498, 505 (1991). "In essence, the doctrine . . . provides that a cause of action
between parties that has been finally determined on the merits b y a [court]
having jurisdiction cannot be re[-]litigated by those parties or their privies in a
new proceeding." Ibid. (citing Roberts v. Goldner, 79 N.J. 82, 85 (1979)). "For
a judicial decision to be accorded res judicata effect, it must be a valid and final
adjudication on the merits of the claim." Id. at 506 (citation omitted).
Defendant had the chance to fully litigate all of the issues now before the
court during his custody and financial trial appeals. His chance to litigate and
appeal any issues from the trial judges' decisions was during those trials and
subsequent appeals of the case in 2014 and 2017. When this matrimonial case
was bifurcated into separate trials for custody and financial issues, each of those
matters was fully litigated in extensive trials, including a twenty-three day trial
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regarding the custody and parenting time issues and an eight-day trial regarding
the financial issues.
When these trials were appealed, we rendered comprehensive, final, and
binding decisions regarding the matters. Our 2014 decision reversed the custody
determination on the very specific issue of the trial judge's error in basing
custody and parenting time determinations on unreliable science in the expert's
testimony. We remanded the matter to the Family Part for establishment of a
parenting time schedule for defendant and potential reunification with his
children, and the New Jersey Supreme Court denied the petition to hear the case.
Thus, notwithstanding the remand, our decision was final and binding on the
parties.
The 2017 decision regarding the financial issues affirmed the decisions of
the trial judge in full. The panel addressed and adjudicated all the meritorious
arguments defendant raised, including but not limited to the award of fees to the
plaintiff. Ultimately, we affirmed the trial judge's decision, holding he did not
abuse his discretion by awarding attorney's fees to plaintiff because defendant
acted in bad faith, and defendant's petitions to the New Jersey and United States
Supreme Court were subsequently denied. As such, our decision regarding the
financial issues trial was a final decision on the merits and is therefore binding
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on the parties. Defendant is now contesting these same findings by merely
repackaging his arguments. His argument rests on the logic that because our
2014 custody decision was reversed and remanded, the portion of the fees
awarded in the financial trial relating to the 2014 decision should also be
reversed. However, defendant's argument does not recognize that fees were
awarded due to his bad faith actions throughout the entire matrimonial litigation
and nothing in our custody decision undermined such a finding. Moreover, the
findings defendant contests were already affirmed and are binding und er the
doctrine of res judicata as discussed above.
Therefore, defendant is estopped from bringing this claim under the
doctrine of res judicata. The same reasoning applies to defendant's argument
concerning bifurcation. Defendant already contested the bifurcation in his
appeal of the financial trial, and the matter was decided. As discussed above,
res judicata bars re-litigation of this issue.
Similarly, defendant's arguments regarding Rule 4:42-9(a)(1) are
unpersuasive. Defendant contends, under Rule 4:42-9(d), the fee award was
impermissible, as subsection (d) prohibits separate orders for allowances of fees.
It states, "[a]n allowance of fees made on the determination of a matter shall be
included in the judgment or order stating the determination." R. 4:42-9(d).
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However, the rule's annotations provide little to no assistance for
defendant's claim that this portion of the rule precludes the award of attorney's
fees in this matter. Here, defendant is not contesting the timing of the
application made for an award of counsel fees, but rather is contesting the
judgment awarding the fees itself. Further, there are no facts in the record
indicating the application for counsel fees was made out of time, nor is this the
argument defendant is attempting to make with regard to the rule. The rule's
intention is to ensure later applications for the award of attorney's fees are not
made after a final determination on the case as a whole has been made, which
was not the case here.
Moreover, the trial judge properly awarded counsel and expert fees to the
plaintiff, making findings of fact, which we affirmed in 2017. We found the
trial judge did not abuse his discretion by awarding expert and counsel fees to
plaintiff because defendant acted in bad faith during litigation.
Having fully considered the record and the submissions of the parties,
pursuant to Rule 2:11-3(e)(1)(E) we do not address defendant's additional
arguments because they lack sufficient merit to warrant discussion in a written
opinion.
Affirmed.
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