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

May I Have A New Judge Assigned To My N.J. Divorce?

     Probably not.  The lawyers at our East Brunswick, New Hersey law firm have heard this request from our divorce client’s many times over the years.  Long story short, your attorney will likely have a difficult time having a new judge assigned to your divorce in a New Jersey Family Court.  This divorce case provides a great analysis of what is required to do so.

            In Ramundo v. Ramundo, Gino S. Ramundo appealed from a final judgment of divorce entered by the Superior Court of New Jersey, Family Part of Bergen County on May 8, 2014. Among other things, Gino argued that Judge Mizdol should have recused herself from the proceedings. Gino also argued that the November 14, 2013 order that struck his complaint, and limited his participation at trial to cross-examination was unjust, because it prevented him from fully participating in the hearing. After a thoughtful review, the New Jersey Appellate Division dismissed both of Gino’s arguments.

Gino and Rita Ramundo got married in 1998, and had two children together. During the course of their divorce litigation, the parents had numerous issues relating to parenting time. On February 8, 2013, the assignment judge advised the parties that that an unnamed doctor had told another judge that Gino had paid a psychiatrist to make a false report diagnosing Rita with borderline personality disorder so that he could get custody of the child and avoid paying child support. However, the judge stated that there was not enough evidence to warrant him reporting the allegation to the proper authorities. Gino’s attorney requested a conference with the judge to get more information about the allegation, but the court said there was no need for it, and that Gino could proceed. Gino’s attorney also tried to schedule conferences with the presiding judge of the Family Part, Judge Bonnie Mizdol, and Judge William DeLorenzo, the judge who presided over the issue, but no conference was ever conducted. His attorney raised the issue again at the December 9, 2013 proceeding to to find out if the judge had any involvement about the spreading “malicious gossip” about Gino allegedly trying to bribe a psychiatrist to Judge Doyne. The judge denied being involved

Judge Mizdol signed an order on June 27, 2013 stating that discovery issues had to be addressed before settlement negotiations could continue. As such, she ordered Gino to submit, certain documents relating to his businesses, within thirty days. Judge Mizdol stated that Gino’s attorney did not request reconsideration of the order, nor did he seek an appeal. Rita complied with the discovery obligations of the order, but Gino merely submitted a short response out of time. A a later hearing, Judge Mizdol informed Gino that the violations of the June 27, 2013 order would not be tolerated, and that his failure to comply could result in sanctions, counsel fees, and the suppression of evidence.

Rita filed a motion to strike Gino’s pleadings, bar presentation of evidence, draw negative inferences, and limit Gino’s trial participation to just cross-examination. She provided a detailed certification of a financial analyst relating to the outstanding discovery. According to the certification, Gino had failed to provide documentation to account for over $ 3 million of the marital estate that was in his sole control. Judge Mizdol heard oral argument on this motion on November 14, 2013. She found that just because the discovery in this case was complicated did not mean that Gino was relieved of his duty to provide that discovery, and that he was flagrantly disregarding the court rules. Consequently Judge Mizdol limited Gino’s trial participation to cross-examination.

On appeal, Gino argued, among other things, that Judge Mizdol should have recused herself. The New Jersey Appellate Division found Gino’s claim to be completely without merit. The appellate panel stated that the judge’s continued involvement did not in anyway appear to be improper. In fact, it is routine for judges to preside over matters in which negative information about one person is presented.

Moreover, Gino had himself waived any objection to the judge’s involvement. He stated that he was satisfied were the judge’s explanation that she was just the “middleman” who conveyed the information from a third judge to the initial assignment judge, and characterized it as “more than adequate.” The appellate panel explained that according to the invited error doctrine, errors at trial that are encouraged, induced or acquiesced in, or consented to by the defense are generally not a valid basis for reversal on appeal. This principle of law gives further credence to the common sense notion that a disappointed party cannot just appeal and argue that a previous ruling was in error if the same party allowed the lower court to adopt the position which is now being alleged to be erroneous.

Gino also argued that the November 14, 2013 order that limited his participation at trial to cross-examination was unjust, because it prevented him from fully participating in the hearing. However the New Jersey Appellate Division held that the interest of justice demanded this order be entered. Judge Mizdol detailed the exact discovery that Gino was required to provide within thirty days in the June 27, 2013 order. Gino failed to meet this burden, and a week after the deadline had passed, he merely submitted a response that even his own lawyer stated was incomplete, disorganized, and “garbage.” Furthermore, at another settlement conference, Judge Mizdol explicitly cautioned Gino that she would enter sanctions against him if he failed to provide the needed information. Rita officially filed a motion for sanctions on October 9, and only then did Gino provide more discovery, more than two weeks later on October 29.

Judge Mizdol heard oral argument on Rita’s discovery motion on November 14. Gino’s lawyer argued that upon receiving the motion, Gino “began to diligently work on assembling materials that were in the order,” and had provided a significant amount of documents. He claimed that Gino could not get the other documents because either they did not exist, or his business partner failed to provide them. He further argued that that in 2012 he let a financial expert have access to his records storage facility, and that this should be considered as the equivalent of complying with the discovery orders. The judge found that this argument was superficial and misleading, because it was not the expert’s responsibility to sift through the documents, put them in a sensible format and submit them, it was Gino’s responsibility. The New Jersey Appellate Division agreed. He had the duty to put all the information together, and he can not just leave it to an expert to go through the hundreds, if not thousands, of pages of documents. That would make a mockery of the discovery process.

Moreover, Gino’s response was late and inadequate. This discovery process had been going on for three years, and while he did produce some documentation in October, the judge stated that it should have been produced two years ago. The New Jersey Appellate Division agreed that Gino’s behavior was a flagrant and willful disregard of the Family Part’s June 27, 2013 order. As such, the New Jersey Appellate Division agreed that striking his complaint and limiting his participation at trial to mere cross-examination was a proper and appropriate sanction. Therefore, the New Jersey Appellate Division dismissed both of Gino’s arguments, that the judge should have recused herself, and that his participation at trial should not have been limited.

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