DAVID PINCKNEY VS. CATHERINE DERY (FM-07-2588-12, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: May 28, 2020
• Docket: A-6003-17T3
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-6003-17T3

DAVID PINCKNEY,

Plaintiff-Appellant,

v.

CATHERINE DERY,

Defendant-Respondent. ______________________________

Submitted April 29, 2020 – Decided May 28, 2020

Before Judges Whipple and Gooden Brown.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FD-07-2588-12.

David Pinckney, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Plaintiff David Pinckney (father) appeals from the July 13, 2018 Family

Part order, entering judgment in favor of defendant Catherine Dery (mother) in the amount of $51,028.89 for plaintiff's unpaid child support, and transferring

venue from Essex to Somerset County where defendant and the parties' two

children currently reside. We affirm.

Plaintiff and defendant were married in 2004 in Accra, Ghana, and

separated in 2011. Two children were born of the marriage, one in 2005, and

the other in 2009, both girls. Following the separation, the parties engaged in

extensive motion practice regarding custody, parenting time, and child support.

As a result of the various motions, the parties were awarded joint legal custody

of the children in an October 4, 2011 order, "plaintiff's request for a change in

custody [was] denied" in a January 11, 2012 order, plaintiff's child support

obligation was established in a March 1, 2012 order in the amount of $198

weekly, "payable by income withholding from [plaintiff's] employer, Irvington

Board of Education,"1 and plaintiff's parenting time every weekend was

continued in an April 5, 2012 order. The latter order also noted that "plaintiff

1 Plaintiff's child support was calculated based on 104 overnights and an annual salary of $80,171 as a teacher. An annual income of $37,000 was imputed to defendant, then an unemployed hotel manager.

A-6003-17T3 2 withdrew his application for custody." Neither party appealed any of these

earlier orders.2

On May 31, 2012, plaintiff filed for divorce in Essex County. On October

17, 2014, the parties executed a custody and parenting time agreement, which

was approved by the court in a consent order. In the agreement, the parties

"agree[d] that they shall have joint legal custody of the minor children and

[defendant] shall be the [p]arent of [p]rimary [r]esidence." The parties also

agreed to a detailed parenting time schedule, with plaintiff "enjoy[ing] parenting

time" every weekend, over one month in the summer, alternate winter and spring

breaks, and specified holidays. When the agreement was executed, both parties

were represented by counsel.

On April 18, 2018, defendant moved to enforce litigant's rights in

connection with plaintiff's non-payment of child support, and sought a warrant

for his arrest. Plaintiff also requested a transfer of venue from Essex to Somerset

County and other relief. On April 24, 2018, plaintiff cross-moved to enforce

litigant's rights to prevent defendant from "interfering with . . . plaintiff's

2 The March 1 and April 5, 2012 orders were entered by Judge Donald A. Kessler. A-6003-17T3 3 custodial right[s]" and "alienating the affection between [plaintiff]" and his

children. Plaintiff also sought other relief not pertinent to this appeal.

On July 13, 2018, the judge conducted oral argument on the motions with

both parties appearing pro se. The judge confirmed that neither party resided in

Essex County, defendant having moved with the children to Somerset County

and plaintiff having moved to Passaic County in 2016. Further, defendant

acknowledged that he was $51,028.89 in arrears in his child support payments

and only paid defendant $3 per week through "automatic" bank payments.

Defendant told the judge he had "lost [his] job" as "a teacher," his

"unemployment ran out in 2016," and he had no "steady income." However, he

acknowledged that he was "an independent contractor," and that he "[did] odd

jobs," including working as "a security guard," "a substitute teacher," and a

"Lyft" driver.

Plaintiff claimed he did not have to pay child support as previously

ordered because "there was never a hearing" regarding custody. Instead,

plaintiff contended that in October 2011, the parties "were given a joint custody

. . . order," but when he came "back [to court] in March," he was improperly

ordered to pay "child support and [had his] custody rights changed" without a

hearing. Plaintiff explained that he had filed an action "in [f]ederal [c]ourt,"

A-6003-17T3 4 because his "due process ha[d] been trampled" by "previous judges." He

claimed that because the "child support order" was entered without "a hearing"

to change his "custody rights," it constituted "a Bill of Attain[d]er."3 As

indicated in his moving papers, plaintiff "request[ed] that the [c]ourt refrain

from doing anything . . . until [his] case in [f]ederal [c]ourt [was] finished"

because he had "the Essex County Family Court as a party in [his] [f]ederal

[c]ourt lawsuit" and it would be "a conflict of interest" for the court to take any

punitive action against him while the lawsuit was pending. Defendant countered

that although this was not a "custody hearing," she had been awarded residential

custody of the children dating back to 2011, but plaintiff kept insisting that

custody was never adjudicated. 4

In an oral decision from the bench, the judge noted there were no "disputes

of material facts with respect to the specific items . . . before the [c]ourt ," and

3 "A bill of attainder, by the common law, as . . . imported . . . from England . . . , before the adoption of the Constitution, was an act of sovereign power in the form of a special statute by which a [person] was pronounced guilty or attainted of some crime, and punished . . . without trial or judgment . . . ." United States v. Lovett, 328 U.S. 303, 322 (1946) (Frankfurter, J., concurring). Under the United States Constitution, a bill of attainder is "a legislative act which inflicts punishment without a judicial trial." Id. at 315. 4 The judge agreed that there was no "change in custody" application before the court.

A-6003-17T3 5 determined that plaintiff "ha[d] violated" the "child support order." Citing Rule

5:3-7 and Rule 1:10-3,5 the judge determined that instead of issuing a warrant

for plaintiff's arrest as requested by defendant, it was "appropriate" to enter "a

judgment in the amount of $51,028.89 as of July 2[], 2018" with interest to

accrue. The judge explained

[P]laintiff has indicated that he works various endeavors, but does not have a full-time job that could be subject to garnishment.

The remedy of fixing a judgment upon which interest accrues allows the other party, the obligee, to have a judgment for those amounts in order to be able to determine whether or not there are assets upon which . . . defendant could . . . seek to execute . . . .

The [c]ourt will, in addition to fixing the amount and entering that as a judgment[,] provide that . . . plaintiff shall, within [thirty] days of today, provide to [d]efendant a certified list of all his assets including any automobiles, bank accounts or any other real . . . or personal property of any sort. And that could provide . . . information to [d]efendant on which she could seek recourse to . . . obtain some payment on her support arrears.

5 "Rule 1:10-3 allows a court to enter an order to enforce litigant's rights commanding a disobedient party to comply with a prior order" or face sanctions. Milne v. Goldenberg, 428 N.J. Super. 184, 198 (App. Div. 2012). Rule 5:3-7, which is cross-referenced in Rule 1:10-3, offers useful remedies to coerce a recalcitrant litigant. The remedies are tailored to address the issues in the case, and include the "issuance of a warrant" as well as "fixing the amount of arrearages and entering a judgment upon which interest accrues." R. 5:3-7(a) and (b). A-6003-17T3 6 Additionally, "[w]ith respect to the change of venue request," citing Rule

4:3-3(a), the judge confirmed that he had been "designated" by the assignment

judge "to rule on the venue application." In that regard, the judge found that

defendant is residing in Somerset County and has brought an application to change venue to the county in which she now resides. . . . [P]laintiff indicated at oral argument today that he lost his house in Essex County in November of 2016. And at that point he . . . moved to . . . his brother's house in Passaic. So[,] he's been residing in Passaic. It'll be two years . . . in November.

So the [c]ourt finds that under [Rule] 4:3- 3[(a)](4) both parties now reside outside the county of original venue which was Essex. . . . So[,] the [c]ourt will grant . . . defendant's application to change venue to Somerset County.

The judge entered a memorializing order and this appeal followed.

On appeal, plaintiff argues that given his federal lawsuit in which the

Family Part of the Essex Vicinage was named as a defendant, there was "a

'conflict of interest'" that precluded the judge from acting "as a neutral arbiter in

the dispute." Accordingly, relying on Rule 1:12-1, plaintiff asserts the judge

"erred as a matter of law in proceeding in any manner," instead of

"disqualif[ying]" himself from the proceedings. We disagree.

Under Rule 1:12-1(g), a judge "shall be disqualified . . . and shall not sit

in any matter," when "there is any . . . reason which might preclude a fair and

A-6003-17T3 7 unbiased hearing and judgment, or which might reasonably lead counsel or the

parties to believe so." Pursuant to Rule 1:12-2, "[a]ny party, on motion made to

the judge before trial or argument and stating the reasons therefor, may seek that

judge's disqualification." The disposition of such a "motion is, at least in the

first instance, entrusted to the 'sound discretion' of the trial judge whose recusal

is sought." Panitch v. Panitch, 339 N.J. Super. 63, 66 (App. Div. 2001) (quoting

Magill v. Casel, 238 N.J. Super. 57, 63 (App. Div. 1990)).

It is well settled that "[l]itigants ought not have to face a judge where there

is reasonable question of impartiality." Id. at 67 (quoting Alexander v.

Primerica Holdings, Inc., 10 F.3d 155, 162 (3d Cir. 1993)). Notably, "Canon

3(C)(1) of the Code of Judicial Conduct provides that '[a] judge should

disqualify himself or herself in a proceeding in which the judge's impartiality

might reasonably be questioned.'" DeNike v. Cupo, 196 N.J. 502, 516 (2008)

(alteration in original). Under both Canon 3(C)(1) and Rule 1:12-1(g), "'it is not

necessary to prove actual prejudice on the part of the court' to establish an

appearance of impropriety; an 'objectively reasonable' belief that the

proceedings were unfair is sufficient." Id. at 517 (quoting State v. Marshall, 148

N.J. 89, 279 (1997)).

A-6003-17T3 8 To assess whether recusal is required, "[i]n DeNike, the Court stated the

key question that must be answered when a claim is made challenging a judge's

impartiality is, '[w]ould a reasonable, fully informed person have doubts about

the judge's impartiality?'" P.M. v. N.P., 441 N.J. Super. 127, 145 (App. Div.

2015) (second alteration in original) (quoting DeNike, 196 N.J. at 517). See

also In re Advisory Letter No. 7-11 of the Supreme Court Advisory Comm., 213

N.J. 63, 73 (2013) (finding that "the overarching objective of the Code of

Judicial Conduct is to maintain public confidence in the integrity of the

judiciary."). However, "DeNike does not set forth any bright-line rules." State

v. Dalal, 221 N.J. 601, 607 (2015). Instead, "the standard calls for an

individualized consideration of the facts in a given case." Ibid. Nonetheless,

"judges are not free to err on the side of caution," Marshall, 148 N.J. at 276, and

"[i]t is improper for a judge to withdraw from a case upon a mere suggestion

that he is disqualified 'unless the alleged cause of recusal is known by him to

exist or is shown to be true in fact.'" Panitch, 339 N.J. Super. at 66-67 (quoting

Hundred E. Credit Corp. v. Eric Schuster Corp., 212 N.J. Super. 350, 358 (App.

Div. 1986)).

Here, on July 10, 2017, prior to the filing of the parties' motions, plaintiff

filed a pro se complaint in the United States District Court for the District of

A-6003-17T3 9 New Jersey, naming the New Jersey Superior Court, Essex Vicinage, Family

Division, and Judge Donald H. Kessler as defendants. The complaint alleged

that plaintiff's constitutional rights were violated when Judge Kessler ordered

him to pay $198 per week in child support and changed his child custody status

from joint custody to that of a non-custodial parent. See Pinckney v. Superior

Court of N.J. Essex Vicinage Family Div., 757 F. App'x 198 (3d Cir. 2018). On

May 23, 2018, the District Court dismissed the federal action, finding that " it

lacked jurisdiction over the claims against the Family Court and against Judge

Kessler in his official capacity, as those claims are barred under the Eleventh

Amendment." Id. at 200. On December 14, 2018, the United States Court of

Appeals for the Third Circuit affirmed the District Court's dismissal of plaintiff's

federal action. Id. at 199.

In these circumstances, we are satisfied that plaintiff's "belief of

unfairness" was not "objectively reasonable," Chandok v. Chandok, 406 N.J.

Super. 595, 604 (App. Div. 2009) (quoting Panitch, 339 N.J. Super. at 67), and

it is highly unlikely that "a reasonable, fully informed person [would] have

doubts about the judge's impartiality." DeNike, 196 N.J. at 517. First, plaintiff

did not appeal Judge Kessler's order or any of the previous orders adjudicating

custody or child support. "In cases like this one, there is an additional concern:

A-6003-17T3 10 that [litigants] not be allowed to manipulate the judicial system and engage in

forum shopping." Dalal, 221 N.J. at 607.

Secondly, the motion judge, who was not Judge Kessler, only adjudicated

the parties' motions to enforce litigants' rights. No application to change custody

or modify child support was presented to or addressed by the judge.

Additionally, when the motion was adjudicated on July 13, 2018, the District

Court had already dismissed the federal action. Thus, there was no basis to

believe that "a fair and unbiased hearing and judgment" could not be rendered.

See id. at 606 (quoting R. 1:12-1(g)). In fact, at the conclusion of the

proceeding, plaintiff commended the judge, stating that his decision was "the

fairest decision." As "judges are not free to err on the side of caution," Marshall,

148 N.J. at 276, it would have been "improper for [the] judge to withdraw from

[the] case upon [plaintiff's] mere suggestion that he [was] disqualified."

Panitch, 339 N.J. Super. at 66. Indeed, because "the alleged cause of recusal"

did not "exist" and was not "true in fact," disqualification was not warranted.

Id. at 66-67 (quoting Hundred, 212 N.J. Super. at 358).

Plaintiff also argues that the judge erred in transferring venue from Essex

to Somerset County. Under Rule 4:3-3(a), "[i]n actions in the Superior Court[,]

a change of venue may be ordered by the Assignment Judge or the designee of

A-6003-17T3 11 the Assignment Judge of the county in which venue is laid." Specifically, "in

Family Part post-judgment motions," a change of venue may be properly

considered "if both parties reside outside the county of original venue and

application is made to the court by either party to change venue to a county

where one of the parties now resides." R. 4:3-3(a)(4).

Here, the judge's decision to transfer venue from Essex to Somerset is

amply supported by the record and thus entitled to deference on appeal. See

Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) ("The general rule is that findings

by the trial court are binding on appeal when supported by adequate, substantial,

credible evidence," and "an appellate court should not disturb the 'factual

findings and legal conclusions of the trial judge unless [it is] convinced that they

are so manifestly unsupported by or inconsistent with the competent, relevant

and reasonably credible evidence as to offend the interests of justice.'"

(alteration in original) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65

N.J. 474, 484 (1974))).

Plaintiff's remaining arguments challenge the earlier orders entered by the

court, including Judge Kessler's orders. However, the only order that is subject

to review on this appeal is the July 13, 2018 order identified in plaintiff's notice

of appeal. See 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super.

A-6003-17T3 12 456, 459 (App. Div. 2004) (explaining that "it is only the judgment or orders

designated in the notice of appeal which are subject to the appeal process and

review" (citing Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App.

Div. 1994))). Stated differently, any arguments raised by plaintiff that fall

outside the four corners of the notice of appeal likewise fall outside the scope of

our appellate jurisdiction and are not reviewable as a matter of law. Moreover,

any appeal of the earlier orders would be untimely and equally beyond our

jurisdiction. See In re Hill, 241 N.J. Super. 367, 372 (App. Div. 1990) ("Where

the appeal is untimely, the Appellate Division has no jurisdiction to decide the

merits of the appeal.").

Affirmed.

A-6003-17T3 13