IWONA E. LONGHITANO VS. ANTHONY G. LONGHITANO, JR. (FM-18-0488-16, SOMERSET COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5113-17T4
IWONA E. LONGHITANO,
Plaintiff-Appellant,
v.
ANTHONY G. LONGHITANO,
JR.,
Defendant-Respondent.
_____________________________
Submitted September 16, 2019 – Decided November 8, 2019
Before Judges Rothstadt and Moynihan.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Somerset County,
Docket No. FM-18-0488-16.
Neal J. Berger argued the cause for appellant.
Respondent has not filed a brief.
PER CURIAM
Plaintiff Iwona Longhitano appeals from a judgment of divorce (JOD)
entered by Judge Michael J. Rogers following a three-day trial, arguing on
appeal:
POINT I
THE LOWER COURT'S DECISION MUST BE REVERSED BECAUSE
[PLAINTIFF] WAS DENIED HER CONSTITUTIONAL RIGHT TO BE
REPRESENTED BY AN ATTORNEY OF HER CHOICE.
POINT II
THE APPELLATE DIVISION SHOULD REMAND THIS CASE TO
THE TRIAL COURT FOR A DETERMINATION OF WHETHER
[PLAINTIFF] WAS COMPETENT TO PROCEED TO TRIAL AND
WHETHER HER TRIAL COUNSEL ZEALOUSLY REPRESENTED
HER.
We reject both of these meritless arguments, refuted by the record, and affirm.
Plaintiff contends that the judge mistakenly applied his discretion in
denying her request for a continuance due to her mental health , contending
during the trial she "was prejudiced . . . because she was not able to respond
clearly and in sound mind." The trial record, however, is devoid of any requests
by plaintiff seeking a continuance.
In his oral decision following trial, Judge Rogers recounted that on the
initial trial date of April 25, 2018, plaintiff's counsel represented to the court
that plaintiff "was not functioning very well and was not ready for trial."
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"[N]oting that [plaintiff], by statements of her counsel, was suffering from some
mental health issues[,]" the judge entered an order that day directing "counsel to
obtain any relevant mental health records and a report from [plaintiff's]
therapist" so the judge could ascertain if she "was able to proceed to trial."
On May 14, 2018, Judge Rogers reviewed a report authored by a nurse
practitioner in psychiatry who informed the court that plaintiff was "under her
care for a mood and anxiety disorder, and was on medication and supportive
psychotherapy." Neither plaintiff nor her counsel requested a continuance or
voiced concern about plaintiff's ability to proceed. Instead, plaintiff's counsel
asked and received the judge's permission to voir dire plaintiff with regard to
her mental condition and her "ability to understand the proceedings." Counsel
questioned if plaintiff was "okay with testifying this morning," to which plaintiff
responded, "I guess." Notwithstanding that plaintiff was taking medications—
the names of which she did not "remember . . . exactly"—plaintiff affirmatively
responded to the judge's questions about the role of the judge and both counsel.
The judge subsequently asked plaintiff if she was "prepared to proceed today[.]"
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Plaintiff responded she just needed "like one hour" because she had a "big
problem sleeping" and was feeling "a little bit like foggy kind of right now." 1
Although plaintiff asserts that "given this information, the [judge] failed
to continue the trial[,]" the full context of Judge Rogers's response evinces that
he found plaintiff was able to proceed and assured her he would address any
change in her condition if it arose during the course of the trial. Following
counsel's and his questioning, Judge Rogers observed plaintiff was "able to
answer the questions, and [was] very focused on the questions." After telling
plaintiff, "if you feel there comes a point in time where you're laboring under
some problem" to so advise her counsel, "and I'm sure [counsel will] bring it to
my attention," to which plaintiff responded, "Yeah." Judge Rogers described
plaintiff as "looking me right in the eye" when he told her:
you seem focused, you're paying attention, you're
nodding your head, your answers are responsive to the
questions that were asked by [your counsel] and by me.
And you certainly know the role of your attorney, you
know the role of your husband's attorney, and you know
the role of the [c]ourt.
So I do understand though, and I have a medical
report that says you do suffer from some anxiety issues,
1
On the second successive day of trial, plaintiff testified that she was unable to
drive if she did not "sleep for a few days" because she did not "want to be put
other people in danger if I don't sleep." When asked how she got to trial,
however, she indicated she drove herself, as she did after the initial trial date.
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and I respect that and understand that. That doesn't
mean you're not prepared to proceed, it just means that
we, in this our society, we medicate these medical
conditions. And you're on some medicines for that
purpose. But you seem fine to proceed to me.
So if that changes, if you don't feel right, or
you're sick or something happens, let [your counsel]
know and we'll deal with it when it comes up.
But today is the day. It's an old case, today is the
day that these parties, you and your husband are entitled
to a decision on your case. That's what this system is
all about.
I see [plaintiff] is nodding her head and . . . seems
to be focused on getting through this process, as I said
earlier, calmly and peacefully, correct? Okay. So she's
nodding her head, yes, please say yes for the record.
Contrary to plaintiff's present argument that she "was not feeling well"
during the trial and that the judge's failure to grant a continuance "resulted in an
unfair trial where [plaintiff] could not appreciate questions, the roles and
consequences[,]" the judge amplified his initial findings in his final decision,
reflecting,
while it's clear that [plaintiff] does suffer from
depression and anxiety, based on the medical records,
it's equally clear that she was under appropriate
medication, she was able to deal with the testimony
quite easily. And even though she was on medications,
it in no way [a]ffected her ability to testify and to
understand the issues in the case and to take a position
as she did on various issues during trial.
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Judge Rogers concluded plaintiff was "in complete command of her faculties
[and] knew exactly the purpose of the trial."
We are unpersuaded by plaintiff's freighted use of parts of the trial
transcript to support her contention that she was "rambling," "not speaking
cohesively (sic)," and "could not appreciate questions." Plaintiff points to the
judge's comment that plaintiff has "been rambling a little bit, and she's not been
particularly responsive, although when [plaintiff's counsel] gets her focused she
does become responsive."
A complete review of the record reveals the judge was commenting, not
on plaintiff's inability to focus or incoherence, but on plaintiff's additional
comments that were unresponsive to the exact question posed and often added
complaints about her marriage. Illustrative of this problem is plaintiff's
testimony during cross-examination during the second day of trial:
Q. Isn't it true that you worked as a nanny, as you
testified yesterday?
A. Yeah, in 2013, when he throw me out from my
house.
Q. And isn't it true that you also worked cleaning
houses?
A. Yeah, before that, yeah.
Q. When did you do that?
A. 2013 too, when he start throwing me out from the
house and I couldn't go because (indiscernible) was
coming.
Q. Can you answer my question, [plaintiff]?
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A. Yes. And took my phones away from me because
he didn't reach me. And he was pushing people too[.]
THE COURT: [Plaintiff], please try and just confine
yourself to the question.
THE WITNESS: Okay.
THE COURT: [Defense counsel] has a right to the
questions --
THE WITNESS: Okay.
THE COURT: And answer format.
THE WITNESS: Okay.
THE COURT: And you're, I'm not criticizing you, a lot
of people do this.
THE WITNESS: Okay.
THE COURT: But you you're just running on --
THE WITNESS: Okay.
THE COURT: With other statements that are not
responsive to what [defense counsel is] saying.
THE WITNESS: Okay.
THE COURT: So please just listen to [defense
counsel], and answer [defense counsel's] question and
then wait for the next question. At some point [defense
counsel will] be done with his questions, just take them
one at a time.
As the judge noted shortly thereafter when allowing plaintiff's counsel to
interject during cross-examination instructions to plaintiff to answer the
question posed, plaintiff "does talk on . . . a little bit from time to time. We're
just trying to keep her focused. I didn't see anything wrong with it." Thus, the
issue involved not plaintiff's mental state but the age-old problem of confining
a witness's answers "to the sphere of responsiveness." Maisto v. Maisto, 123
N.J.L. 401, 403 (Sup. Ct. 1939), aff'd, 124 N.J.L. 565 (E. & A. 1940).
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As the judge found in his decision, plaintiff's "demeanor was as a result
of the pressures of marriage and divorce and had nothing to do with any anxiety
or mood disorder. She was completely responsive and she was able to fully
participate in the trial." In addition, the judge determined that plaintiff's
emotions during her testimony, which included "bitterness, anger" were
attributed to the stress of litigating a divorce, and not to her anxiety disorde r.
We see no support in the record for plaintiff's contention that she
requested an adjournment or that there was cause for her counsel to request one.
And even if one was requested, plaintiff offered no grounds to justify a
continuance. Moreover, even if the judge abused his discretion in denying an
adjournment request, plaintiff failed to articulate how she was prejudiced. See
State v. Hayes, 205 N.J. 522, 537 (2011) (recognizing New Jersey has long
accepted the view that a "'motion for an adjournment is addressed to the
discretion of the court, and its denial will not lead to reversal unless it appears
from the record that [a party] suffered manifest wrong or injury'" (quoting State
v. Doro, 103 N.J.L. 88, 93 (E. & A. 1926))). Indeed, plaintiff does not appeal
any of the JOD terms.
Plaintiff also argues the trial court "refused to discharge [plaintiff's]
counsel, and forced [her] to proceed to trial, rather than postpone the trial and
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allow [her] to retain the services of an attorney of her own choosing." We
determine plaintiff's arguments, including her inapposite reliance on criminal
right-to-counsel cases, lacks sufficient merit to warrant discussion in this written
opinion. R. 2:11-3(e)(1)(E); see In re Estate of Schifftner, 385 N.J. Super. 37,
44-45 (App. Div. 2006) (stating that generally there is no constitutional right to
counsel in civil cases). We add only that the record is bereft of any request by
plaintiff to obtain new counsel or to represent herself. On the second day of
trial, a tardy plaintiff apologized to the judge and stated, "Because my attorney
tried to release her from representing me. So if I want to appeal the case, because
things happened between me and her[.]" She said nothing about obtaining new
counsel. And, once again, she failed to proffer any evidence that she was
prejudiced by her chosen counsel's representation.
Affirmed.
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