Z.S. VS. L.G.-S. (FM-15-0500-14, OCEAN 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NOT FOR PUBLICATION WITHOUT THE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-2418-16T1
Z.S.,
Plaintiff-Appellant,
v.
L.G.-S.,
Defendant-Respondent.
__________________________
Submitted March 26, 2019 – Decided May 7, 2019
Before Judges Fisher and Hoffman.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County, Docket
No. FM-15-0500-14.
Z.S., appellant pro se.
Respondent has not filed a brief.
PER CURIAM
Plaintiff Z.S. appeals from the final judgment of divorce (FJD) entered by
the Family Part following a one-day trial. He presents the following points of
appellate argument for our consideration:
I. Trial Court egregiously abused discretion in
award of unallocated support (Alimony and Child
Support) without ever conducting any hearing,
requiring reversal of the Final Judgment of
Divorce.
II. Trial Court egregiously abused discretion in
award of unallocated support (Child Support)
without ever conducting any hearing, testimony,
or evidence, requiring reversal.
III. Trial Court egregiously abused discretion in
denying Plaintiff's parental rights, without any
child custody or parenting time determination,
caused by false domestic violence allegations
filed by Defendant, thus, requiring reversal.
IV. Trial Court egregiously abused discretion in
failing to consider the equitable distribution
factors and should have sold the marital residence
as it was draining resources, thus, requiring
reversal.
V. Trial Court egregiously abused discretion in
awarding Defendant attorneys' fees, therefore
requiring reversal.
A. Fees should not be awarded to
Defendant on grounds that Plaintiff
acted in "bad faith", when Defendant
was the party who acted in bad faith
and filed a false domestic violence
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charge which was dismissed,
Plaintiff's divorce pleadings were
improperly suppressed contrary to
the facts he and his 3 attorneys
submitted all discovery, Defendant
held discovery in marital residence
after Plaintiff removed, and
defendant never provided any
discovery that was demanded by
Plaintiff and his attorneys, requiring
reversal.
Having reviewed the record, we find that the extensive oral decision of
Judge Marlene L. Ford is supported by sufficient credible evidence, is consistent
with applicable law, and does not represent an abuse of the judge's discretion.
See Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Steneken v. Steneken, 367
N.J. Super. 427, 434-35 (App. Div. 2004), aff’d as modified, 183 N.J. 290(2005). We perceive no reason to depart from our usual rule of deference to a
trial judge's credibility determinations and to the expertise of the Family Part in
handling matrimonial disputes. Cesare, 154 N.J. at 412. We affirm substantially
for the reasons set forth by Judge Ford in her comprehensive oral opinion issued
on December 20, 2016. We add the following comments.
The parties married in 1999 and three children (current ages nineteen,
fifteen, and eleven) were born of the marriage. In January 2014, police arrested
plaintiff following a domestic violence incident and defendant obtained a
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temporary restraining order (TRO); however, the court dismissed the TRO
following a trial that same month.
Plaintiff filed for divorce in October 2013. In April 2014, following a
hearing which plaintiff failed to attend despite receiving notice, Judge Madelin
F. Einbinder ordered defendant "shall have temporary sole, legal and residential
custody" of the parties' children. That same order granted plaintiff supervised
parenting time.
Throughout the remainder of the proceedings, Judge Ford ordered plaintiff
would continue to receive supervised parenting time, provided he complete an
anger management program, based upon the domestic violence alleged by
defendant, a recording defendant submitted capturing plaintiff in a rage, and
plaintiff's admission to police he used corporal punishment with the parties'
oldest child.
At the time of the divorce trial, Judge Ford found the corporal punishment
was "excessive" and "harmful," but concluded it was "an isolated incident." She
noted that the oldest child did not wish to have parenting time with plaintiff and
the middle child was hesitant to visit with plaintiff in an unsupervised setting.
Moreover, the judge noted plaintiff provided vague and incomplete information
as to his place of residence. The judge also found "plaintiff has some impulse
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control problems . . . and some anger management issues," which he exhibited
"during the course of the trial."
The litigation was extremely contentious and involved voluminous filings
by the parties. Ultimately, Judge Ford found plaintiff acted in bad faith
throughout the litigation, draining defendant's resources and disrupting the
proceedings. The court also found plaintiff intentionally failed to comply with
court orders, make sufficient financial disclosures, and otherwise attempted to
obscure his financial status to defendant's disadvantage. As a result, on
December 18, 2015, Judge Ford granted defendant's motion to suppress
plaintiff's pleadings, pursuant to Rule 4:23-2(b), concluding he engaged in "a
calculated effort to avoid his obligations to make discovery and to otherwis e
conduct himself in good faith . . . ." The record provides ample support for this
conclusion, including defendant's failure to obey a previous court order
requiring him to pay the mortgage and all utilities for the marital home occupied
by defendant and the parties' three children. As a result, the home went into
foreclosure, and the gas and electrical services to the home were shut off, leaving
"the children . . . without the ability to have hot showers . . . ."
In her oral decision on the FJD, Judge Ford carefully addressed and made
findings as to each of the statutory factors applicable to a custody and parenting
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time determination. The FJD included supervised parenting time for plaintiff
and ordered the parties to participate in a custody neutral assessment to
determine whether and when it would be appropriate to transition plaintiff to
unsupervised parenting time. The record clearly reflects that Judge Ford
reasonably exercised her discretion when she addressed the issues of custody
and parenting time.
Regarding equitable distribution, plaintiff contends, "Defendant was
awarded all assets and monies based on fraudulent 'bad faith[,]'[] and then
granted alimony after being given [one-hundred percent] of the financial assets."
Ibid. Plaintiff asserts the former marital residence was a drain on assets and
should have been sold, pursuant to Randazzo v. Randazzo, 184 N.J. 101, 113
(2005). We disagree.
Judge Ford did not award 100 percent of the assets to defendant. Instead,
she ordered that defendant was entitled to equitable distribution if the
undisclosed business entities which plaintiff was alleged to own, or have an
interest in, were eventually located. This does not presume defendant was
granted 100 percent of the asset. Additionally, the judge ordered defendant was
entitled to equitable distribution of $650,000, representing assets which plaintiff
claimed he no longer possessed but the judge concluded he failed to provide a
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sufficient account as to their disposition. The judge also ruled defendant was
entitled to fifty percent of the proceeds generated from the sale of the cars
purchased during the marriage. As to the former marital residence , the judge
ordered defendant should retain title, in part, to utilize whatever equity existed
in the property to offset plaintiff's substantial arrearages of support paymen ts.
The court also provided that defendant would retain the items in the former
marital residence because plaintiff previously entered the home and removed his
work and personal items.
The judge adequately addressed the factors of N.J.S.A. 2A:34-23.1. Her
decision was well within her broad discretion to allocate the marital assets she
determined were subject to equitable distribution.
Plaintiff asserts the trial court failed to consider the nine factors under
Rule 5:3-5(c) before ordering plaintiff to pay defendant's counsel fees. Ibid. He
also argues he was unable to retain counsel, which was "catastrophic and
requires reversal." We are not persuaded.
Judge Ford made ample findings throughout the pendency of the litigation,
and upon her final disposition, as to the award of counsel fees. The judge noted
plaintiff's outright failure to comply with numerous court orders, his filing of
frivolous motions intended to drain defendant's resources, his refusal to pay
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court-ordered child support, and the fact that all marital assets were maintained
in accounts controlled by plaintiff and defendant was essentially a homemaker
with limited earning capacity. Additionally, the judge addressed the Rule 5:3-
5(c) factors and made detailed findings on the record supporting her award of
attorney's fees. Her determination that plaintiff acted in bad faith to disrupt the
litigation and drain defendant's resources, and caused defendant to incur
substantial unnecessary costs, was amply supported by the record and not an
abuse of discretion.
Plaintiff's additional appellate contentions lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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