ROXANNE E. LLOYD VS. BRIAN E. LLOYD (FM-06-0012-15, CUMBERLAND COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-4586-16T3
ROXANNE E. LLOYD,
Plaintiff-Appellant,
v.
BRIAN E. LLOYD,
Defendant-Respondent.
______________________________
Submitted June 5, 2018 – Decided June 29, 2018
Before Judges Reisner and Mitterhoff.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Cumberland
County, Docket No. FM-06-0012-15.
Law Office of Michael T. Van Der Veen,
attorneys for appellant (Joseph P. Capone, on
the brief).
Respondent has not filed a brief.
PER CURIAM
Plaintiff Roxanne E. Lloyd appeals from a May 15, 2017 final
judgment of divorce that was entered after the trial judge denied
the request of plaintiff's counsel for an adjournment because he
was on trial in another jurisdiction. The trial judge dismissed
plaintiff's complaint and rendered his decision based solely on
defendant's counterclaim. Defendant has not filed an opposing
brief. We reverse.
This matter arises from a contested divorce action in
Cumberland County. Plaintiff filed a complaint of divorce on July
2, 2014, seeking various remedies including no fault divorce,
spousal support, counsel fees and equitable distribution.
Defendant filed an answer to the complaint as well as a
counterclaim seeking similar recovery. Plaintiff was initially
represented by David Sufrin, Esq. Plaintiff's current counsel,
Joseph F. Capone, Esq., filed a substitution of attorney on or
about January 17, 2017.1
Trial was scheduled to commence on March 30, 2017. On March
29, 2017, another judge in Philadelphia County ordered Capone to
commence a jury trial. Capone informed the Philadelphia judge of
his commitment in Cumberland County, but that judge would not
delay the Philadelphia jury trial as the matter was several years
old. The specifics of the jury trial were sent to the Cumberland
County trial judge including the name of the case, the name of the
1
The substitution of attorney was not immediately filed because
the check that accompanied the filing bore the wrong year and was
returned to Capone, but that error was subsequently corrected. It
is clear from the trial transcript that the judge was aware of
this clerical error.
2 A-4586-16T3
judge, the location and phone numbers of the court and staff for
verification. Capone advised the trial court that the jury trial
would last approximately one week. Capone also informed
defendant's counsel of the conflict so he would not be
inconvenienced. Despite having been provided with detailed
information concerning counsel's whereabouts, the trial judge
unilaterally decided to dismiss plaintiff's complaint for divorce
including the count for equitable distribution and proceeded to
try defendant's counterclaim without plaintiff or her counsel
being present. Final judgment was entered on May 15, 2017. This
appeal ensued.
On appeal, plaintiff argues that the trial judge abused his
discretion in summarily dismissing plaintiff's complaint as her
counsel was on trial on another jurisdiction.
The granting or denial of an adjournment is within the trial
court's discretion. Kosmowski v. Atl. City Med. Ctr., 175 N.J.
568, 575 (2003). An appellate court will reverse for failure to
grant an adjournment only if the trial court abused its discretion,
causing a party a "manifest wrong or injury." Allegro v. Afton
Village Corp., 9 N.J. 156, 161 (1952); State v. Doro, 103 N.J.L.
88, 93 (E. & A. 1926).
In exercising discretion when counsel is not available, the
trial court must navigate a course between "the salutary principle
3 A-4586-16T3
that the sins of the advocate should not be visited on the
blameless litigant," and "the court's strong interest that
management of litigation, if it is to be effective, must lie
ultimately with the trial court and not counsel trying the case."
Kosmowski, 175 N.J. at 574 (quoting Aujero v. Cirelli, 110 N.J.
566, 573 (1998)(other citation omitted)). The court must remain
mindful of its overriding objective that "[c]ases should be won
or lost on their merits and not because litigants have failed to
comply with particular court schedules, unless such noncompliance
was purposeful and no lesser remedy was available." Connors v.
Sexton Studios, Inc., 270 N.J. Super. 390, 395 (App. Div. 1994);
see also Jiminez v. Baglieri, 295 N.J. Super. 162, 165 (App. Div.
1996)(abuse of discretion found where trial court denied a one-
day adjournment because of unavailability of expert), rev'd on
other grounds, 152 N.J. 337 (1998).
In this case, Capone, as a solo practitioner, was the only
attorney available to try the case to completion. There is no
evidence that he was not ready to try the case. Designation of
trial counsel provides a valid ground for adjournment of a
scheduled trial date where the named attorney has a superseding
commitment in another court. See Harmon Grove II Condo Ass'n,
Inc. v. Hart Mountain Indus., 258 N.J. Super. 519 (App. Div. 1992).
Opposing counsel did not object to what appeared likely to be a
4 A-4586-16T3
one-week adjournment of the trial. There is no brief in opposition
filed by defendant on this appeal. Plaintiff was deprived of her
ability to appear at trial represented by the attorney of her
choosing and was thus potentially deprived of remedies she sought
in her divorce complaint.
Under these circumstances, we find the judge mistakenly
exercised his discretion in denying a brief adjournment of the
trial, dismissing plaintiff's complaint, and deciding the case
solely on the basis of the counterclaim. Although we are
sympathetic to the trial court's need to expeditiously move cases,
we are also concerned about the need to have cases decided on the
merits, with the full participation of all parties. That Capone
was forced to trial in Philadelphia County was through no fault
of the plaintiff. To punish a blameless litigant for a situation
that even her counsel had no control over is manifestly unjust.
Accordingly, we find the judgment must be vacated and the matter
reversed and remanded for trial.
Reversed and remanded. We do not retain jurisdiction.
5 A-4586-16T3