Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

Abusing A Child Custody Expert May Result In Contempt Of Court

A divorce can be extremely stressful, especially at trial before a judge. As a seasoned divorce attorney I know how important it is not only to follow all orders but also embrace that some folks simply cannot control their emotions.  Over the years as a New Jersey divorce and child custody lawyer, I have learned to advise my client’s to control their emotions and to even consider therapy if they find that they are struggling to do so.  I do this for many reasons.  First, any attorney knows that their client’s demeanor during a child custody battle is essential, especially towards a child custody expert who had been appointed by a New Jersey Family Court.  Second, you do not need to be an attorney to know that abusing or intimidating a child custody expert can only cause damage and have absolutely no positive effect on the case.  Finally, a judge of the Family Part, Superior Court of New Jersey not only takes their orders very seriously, but will also protect an expert (who is simply just doing their job) from being mistreated. Otherwise, this parent could be held in contempt of court, which as very serious consequences.

In Ippolito v. Ippolito, a family judge instituted a contempt proceeding under Rule 1:10-2, against husband Tobia Ippolito. This proceeding started because the judge received a letter from wife Lisa Ippolito’s lawyers that claimed Tobia had violated the provisions of a February 20, 2014 order that prohibited him from threatening or intimidating experts in the trial. However, the trial judge presided over the very same contempt proceeding that he initiated. Therefore the New Jersey Appellate Division held that contempt order must be vacated, and the issue must be reassigned to a new impartial judge. A family law judge cannot preside over a contempt proceeding initiated in the same matter.

A contempt proceeding is the action that is taken against a person who disobeys, or acts contemptuously or demeans the court of law. There are essentially two types of contempt: (1) being rude, disrespectful to the judge or other attorneys or causing a disturbance in the courtroom, particularly after being warned by the judge; (2) willful failure to obey an order of the court. Contempt proceedings are especially used to enforce equitable remedies, such as injunctions. When a court decides that an action constitutes contempt of court, it can issue a court order that in the context of a court trial or hearing declares a person or organization to have disobeyed or been disrespectful of the court's authority, called "found" or "held in contempt"; this is the judge's strongest power to impose sanctions for acts that disrupt the court's normal process.

A finding of being in contempt of court may result from a failure to obey a lawful order of a court, showing disrespect for the judge, disruption of the proceedings through poor behavior, or publication of material deemed likely to jeopardize a fair trial. A judge may impose sanctions such as a fine or jail for someone found guilty of contempt of court. Judges in common law systems usually have more extensive power to declare someone in contempt than judges in civi law systems. The client or person must be proven to be guilty before he/she will be punished.

Before the 1994 amendment to Rule 1:10-2 there was a strict rule that prohibited an initiating judge from presiding over a summary contempt proceeding. Judges followed this approach mainly because of the potential for impartialness and arbitrariness when a judge acts as the reviewer of a violation of a court order. Ever since 1994, however, Rule 1:10-2(c) only requires that the matter not be heard by the by judge who instituted the proceeding if the appearance of objectivity requires trial by another judge. Thus the New Jersey Appellate decision had to decide if the appearance of objectivity prohibited what occurred.

The record showed that the judge’s April 16, 2014 order to show cause was prompted by both the April 15, 2014 written complaint of Lisa’s lawyer regarding Tobia’s communication with a custody expert, and the suits prior history which was comprised of orders limiting or prohibiting such communications. Also, the order to show cause appeared to have issued before Tobia had an opportunity to explain or respond. This sudden shift from a complaining letter to the commencement of a summary contempt proceeding could alone suggest the appearance that objectivity had been lost. Even if that was not so the New Jersey Appellate Division stated that the events that followed showed that the trial judge should not have presided over the summary contempt proceeding he initiated.

The New Jersey Appellate Division stated that the summary prosecution of a contempt committed outside the presence of the court if a highly sensitive matter. For this reason it warrants intensive attention to the procedural safeguards embodied by the rules. This is why the appellate courts review was de novo. In this type of review, the appellate court examines whether the decision made by a trial court applied the law correctly to the facts of the case. De novo review is distinct in that it looks into how law is applied rather than the factual basis for the trial court's decision. In either case, the appellate review will not hear new testimony or consider new evidence.  A trial de novo is a form of appeal in which the appeals court holds a trial as if no prior trial had been held.

The commencement of a proceeding under Rule 1:10-2, or contempt, is a charge of criminal conduct. The essence of a contempt charge is the defiance of public authority. Therefore, anyone defending a charge of contempt is entitled to most of the safeguards given to criminal defendants. The only exceptions of the right to indictment and the right in some cases to a jury trial. Still, Tobia was entitled to the presumption of innocence, the privilege against self-incrimination, the right of cross-examination, proof of guilt beyond a reasonable doubt, and the admissibility of evidence in accordance with the rules of evidence. These important rights have strong historical purposes. The New Jersey Appellate Division cited Justice Frankfurter who observed that “bitter experience has sharpened our realization that the major test of a true democracy is the fair administration of justice. In the United States Supreme Court case of Burdeau v. McDowell, Justice Brandeis noted in dissent that insistence on procedural regularity has been a large factor in the development of liberty. By telling Tobia to take the oath and respond to the unsworn allegations claimed by Lisa’s lawyer that led to the very contempt proceeding, the judge effectively waived Tobia’s  right against self-incrimination. Furthermore, by requiring that Tobia first testify, asserting that he was there to tell him why he should not be held in contempt, the judge wrongly assumed that Tobia had the burden of proving his innocence. Conversely, the New Jersey Appellate Division noted that it was the prosecution’s burden to prove that Tobia was in contempt beyond a reasonable doubt. With this short statement at the beginning of the proceeding, the judge denied Tobia of his presumption of innocence.

Rule 1:10-2(c) also declares that a contempt proceeding may only be prosecuted on behalf of the court by a the Attorney General, the County Prosecutor, or where the court designates an attorney. In Ippolito, no attorney was designated. Quite the opposite, the judge seemed to prosecute the matter himself. He was the one who directed Tobia to testify first, and he was the one who cross-examined him. Despite the clear rule barring such actions, the judge still decided to take on that role. The judge’s comments at the beginning of the proceeding eliminated any doubt about the “appearance of objectivity.” Therefore, the New Jersey Appellate Division held that the May 7, 2014 order was to be vacated. The court remanded the case to an assignment judge to pick another judge to preside over the summary contempt proceeding started by the order to show cause entered on April 16, 2014.

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