ALBERT WITTIK v. DEBRA WITTIK (FM-18-0426-12, SOMERSET COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-3530-20
ALBERT WITTIK,
Plaintiff-Appellant,
v.
DEBRA WITTIK,
Defendant-Respondent.
_____________________________
DEBRA WITTIK,
Third Party Plaintiff,
v.
ANGELA SUSKE, individually,
ANGELA SUSKE as Guardian
for NICHOLAS SUSKE,
NICHOLAS SUSKE, individually,
NINA SUSKE, individually,
and THERESA ANGELO,
Third-Party Defendants.
_____________________________
Submitted June 8, 2022 – Decided July 5, 2022
Before Judges Gooden Brown and Gummer.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Somerset County,
Docket No. FM-18-0426-12.
Albert Wittik, appellant pro se.
Jeney Law, LLC, attorneys for respondent (Carol A.
Jeney, on the brief).
PER CURIAM
In this post-judgment matrimonial matter, pro se plaintiff Albert Wittik
appeals from a June 1, 2021 Family Part order. The June 1 order: (1) denied
his motion to vacate a September 13, 2019 order, requiring that his motions be
reviewed by a judge prior to being accepted for filing; and (2) granted his ex-
wife's cross-motion to compel payments for funds owed to her under the parties'
2017 Judgment of Divorce (JOD). We affirm.1
We glean these facts from the record. The parties divorced in 2017 after
plaintiff's divorce complaint was dismissed with prejudice, default was entered
on defendant Debra Wittik's counterclaim seeking equitable distribution and
other relief, and a default hearing was conducted which resulted in defendant
being awarded $500,000 as her share of equitable distribution and $169,587.50
1
Plaintiff failed to include the September 13, 2019 order in his appendix in
contravention of Rule 2:6-1(a)(1).
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in counsel fees. In the JOD, Heidi Lepp was appointed as trustee in the matter,
"to ensure that . . . [d]efendant . . . and [counsel] receive[d] the sums awarded
to both under the provisions of th[e JOD]." 2
After the JOD was entered, plaintiff moved for reconsideration of certain
provisions and for a stay of enforcement pending appeal. In a September 18,
2017 order, plaintiff's motion was denied. Subsequently, in 2019, plaintiff filed
two separate pro se motions – one to vacate the JOD and one for an accounting
and return of certain assets. The judge denied both motions in an August 16,
2019 order, which we affirmed in an unpublished opinion. See Wittik v. Wittik,
No. A-0069-19 (App. Div. Oct. 1, 2020).
Plaintiff continued to engage in extensive post-judgment motion practice.
In response to numerous frivolous motions filed by plaintiff, an order was
entered on September 13, 2019, providing that all motions from plaintiff "first
be reviewed by a Judge of the Superior Court" prior to being "accepted for filing
2
During the divorce proceedings, defendant had filed a third-party complaint
naming Angela Suske, plaintiff's adult daughter from a prior marriage, Suske's
children, and plaintiff's mother as third-party defendants, alleging that, among
other things, plaintiff's transfer of property to Suske prior to the filing of the
divorce complaint was an attempt to prevent defendant from receiving her share
of the marital property. Suske later appealed the adjudication of the third -party
complaint, which resulted in an unpublished opinion that has no bearing on this
appeal. See Wittik v. Wittik, No. A-0333-17 (App. Div. Dec. 3, 2018).
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by the Clerk of the Court." Plaintiff did not appeal the September 13 order or
file a timely motion for reconsideration. See Rule 4:49-2 (permitting a party to
file a motion for reconsideration of an order no later than twenty days after the
service of the order). Instead, over eighteen months later, on April 15, 2021,
plaintiff moved to vacate the September 13 order, asserting it was entered in
contravention of caselaw.
Defendant opposed the motion and cross-moved to compel plaintiff to pay
her $14,500, to garnish plaintiff's pension, and for counsel fees. In support,
defendant submitted certifications prepared by her attorney and a letter from
Lepp, the former trustee appointed in the case.3 Defendant's submissions
asserted that plaintiff continued to file frivolous motions, had assets he had
hidden during the divorce, and still owed defendant substantial sums under the
JOD and other orders. In one certification, defendant's attorney averred that
plaintiff's hidden assets were uncovered when plaintiff attempted to purchase a
home in March 2020.
In a June 1, 2021 order, the judge denied plaintiff's motion and granted in
part defendant's cross-motion, awarding her $14,500 and garnishing plaintiff's
3
The record does not include the Lepp letter and only includes one of
defendant's attorney's certifications.
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pension. Defendant's request for counsel fees was denied. In an accompanying
written statement of reasons, the judge determined that plaintiff's motion for
reconsideration of the September 13 order was untimely. Evaluating defendant's
application for relief under Rule 4:50-1(b), requiring a showing of "newly
discovered evidence," 4 the judge explained that:
Plaintiff has not submitted any new evidence that was
not available at the time of the original motion, nor has
he shown any other reason why the order should be
vacat[ed]. Plaintiff's recent conduct and practice of
filing numerous motions is the exact type of action that
the September 13, 2019 [o]rder was entered to prevent.
Plaintiff lacks credibility and it is burdensome for
defendant and others to have to defend against his
frivolous motions.
In granting defendant's motion to compel plaintiff to pay $14,500, the
judge reasoned plaintiff still owed defendant "significant funds" totaling over
$144,552, and "[d]efendant has produced proof that plaintiff has significant
liquid assets in spite of his claims that he has little income and no assets ."
Specifically, the judge referenced plaintiff's two recent attempts "to purchase a
home," where he "paid a deposit of $14,500[], which was returned by the seller."
4
Under Rule 4:50-1(b), a party may obtain relief from an order based on "newly
discovered evidence which would probably alter the . . . order and for which by
due diligence could not have been discovered in time to move for a new trial
under R[ule] 4:49." An application under Rule 4:50-1(b) must be made "not
more than one year" after the entry of the order. R. 4:50-2.
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The judge concluded "[p]laintiff has at least $14,500[] as indicated by the
returned check" and ordered defendant to pay plaintiff that amount. The judge
also granted defendant's motion to garnish plaintiff's pension because
"[p]laintiff continue[d] to act in bad faith and make false statements about his
financial situation." The judge added, "[p]laintiff continues to proclaim that he
has been wronged by the system and accuses others of stealing from him. It is
clear that defendant will never receive any of the monies that are owed to her
without ongoing litigation and attorneys['] fees."
In his present appeal from the June 1, 2021 order, plaintiff argues, without
elaboration, that the judge "hastily moved the hearing to inhibit the proper and
adequate consideration of the original purpose of the [m]otion," and defendant's
"cross motion did not respond to . . . [p]laintiff's [m]otion," and therefore should
not have been considered. He contends the judge's "order compelling . . .
[p]laintiff to pay $14,500 to . . . [d]efendant was granted on hearsay, conjecture,
and completely without a modicum of proof." He also argues that the court
should not have considered Lepp's letter in opposition to his motion. Further,
plaintiff argues the judge had no "legal authority" to "garnish . . . [p]laintiff's
pension."
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We first address the procedural issue raised by plaintiff. Rule 1:6-3(b)
states, in pertinent part:
A cross-motion may be filed and served by the
responding party together with that party's opposition
to the motion and noticed for the same return date only
if it relates to the subject matter of the original motion,
except in Family Part motions . . . where a cross-motion
may seek relief unrelated to that sought in the original
motion.
"This paragraph of the rule excludes motions in family actions which are
generally governed by R[ule] 5:5-4 and makes it clear that non-germane cross
motions are permissible in the Family Part." Pressler & Verniero, Current N.J.
Court Rules, cmt. 2 on R. 1:6-3(b) (2022); see also Van Horn v. Van Horn, 415
N.J. Super. 398, 409 (App. Div. 2010) (finding "no error" in the Family Part
judge's relaxation of the rule and consideration of defendant's cross-motion
notwithstanding the fact that it "did not specifically relate to the subject matter
of the original motion" where plaintiff failed to demonstrate "any prejudice to
his ability to defend the cross-motion"). Here, as authorized under the rule, the
judge properly considered defendant's cross-motion to enforce litigant's rights,
even though it did not specifically relate to the subject matter of plaintiff's
original motion.
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A motion to enforce litigant's right is governed by Rule 1:10-3. "Rule
1:10-3 provides a 'means for securing relief and allow[s] for judicial discretion
in fashioning relief to litigants when a party does not comply with a judgment
or order.'" N. Jersey Media Grp., Inc. v. State Office of the Governor, 451 N.J.
Super. 282, 296 (App. Div. 2017) (alteration in original) (quoting In re N.J.A.C.
5:96, 221 N.J. 1, 17-18 (2015)). We review an order entered under Rule 1:10-3
under an abuse of discretion standard, id. at 299, and we accord "great deference
to discretionary decisions of Family Part judges," Milne v. Goldenberg, 428 N.J.
Super. 184, 197 (App. Div. 2012), in recognition "of the family courts' special
jurisdiction and expertise in family matters," Cesare v. Cesare, 154 N.J. 394,
413 (1998).
Likewise, "[a] trial court's determination under [Rule 4:50-1] warrants
substantial deference and should not be reversed unless it results in a clear abuse
of discretion." U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012).
An abuse of discretion occurs "when a decision is 'made without a rational
explanation, inexplicably departed from established policies, or rested on an
impermissible basis.'" Ibid. (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J.
88, 123 (2007)). However, "[a] trial court's interpretation of the law and the
legal consequences that flow from established facts are not entitled to any
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special deference." Hitesman v. Bridgeway, Inc., 218 N.J. 8, 26 (2014) (quoting
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378
(1995)).
Applying these principles, we find no abuse of discretion in the judge's
decision to deny plaintiff's motion to vacate the September 13 order. As the
judge pointed out, the motion was time barred and lacked substantive merit.
Moreover, "once an abuse of the system is identified," a litigant's filings may be
required to undergo the kind of scrutiny encompassed in the September 13 order.
Rosenblum v. Borough of Closter, 333 N.J. Super. 385, 394 (App. Div. 2000).
As was the case here, such an order may be "directed to one 'whose history of
repetitious and frivolous filings indicates a clear intent to abuse the courts'
and . . . can require 'only that a litigant refrain from filing a repetitious claim or
a claim that the [litigant] knows to be frivolous.'" Ibid. (quoting Abdul-Akbar
v. Watson, 901 F.2d 329, 334 (3d Cir.1990)).
Similarly, we find no abuse of discretion in the judge's decision to grant
defendant's cross-motion to enforce litigant's rights. We conclude that plaintiff's
arguments are without sufficient merit to warrant discussion in a written
opinion, R. 2:11-3(e)(1)(E), and affirm substantially for the reasons stated in the
judge's cogent statement of reasons.
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Affirmed.
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