Yvietta Matison v. Mark Lisnyansky

129 A.3d 1082, 443 N.J. Super. 549

• Court: New Jersey Superior Court Appellate Division
• Decided: January 13, 2016
• Docket: A-5656-13T2
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5656-13T2

YVIETTA MATISON, APPROVED FOR PUBLICATION

January 13, 2016 Plaintiff-Respondent, APPELLATE DIVISION v.

MARK LISNYANSKY,

Defendant-Appellant. ________________________________________________________________

Argued November 12, 2015 – Decided January 13, 2016

Before Judges Fuentes, Koblitz and Gilson.

On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. FM-02-1572-10.

Scott Adam Laterra argued the cause for appellant (Laterra & Hodge, LLC, attorneys; Mr. Laterra and Jeffrey B. Hodge, on the brief).

Bruce J. Ackerman argued the cause for respondent (Pashman Stein, PC, attorneys; Mr. Ackerman, Kamilla B. Rodrigues, and Tadd J. Yearing, on the brief).

The opinion of the court was delivered by

KOBLITZ, J.A.D.

We dismiss this appeal based on the legal doctrine of

fugitive disentitlement. A father may not obtain the protection of our judicial system to appeal a palimony and custody default

judgment while he remains outside of the country avoiding arrest

on an outstanding child-support bench warrant.

Defendant Mark Lisnyansky appeals from the trial court's

June 20, 2014 order denying his motion to vacate a May 1, 2013

default judgment, which awarded plaintiff Yvietta Matison

palimony and custody of the couple's twin children, who were

born in 2004. Prior to the default hearing, a warrant for

defendant's arrest had been issued due to his failure to pay

court-ordered child support. See R. 1:10-2; Pasqua v. Council,

186 N.J. 127, 140 (2006) (stating that a parent is subject to

criminal contempt proceedings pursuant to Rule 1:10-2 when the

"parent fails to abide by a court-ordered child support

obligation"). On the day of the hearing, defendant was in

Russia and did not personally appear before the trial court.

According to plaintiff, before she came to the United

States in March 2006, defendant purchased a home valued at

approximately $1.9 million in Franklin Lakes and paid for

substantial renovations to the home. He also provided a nanny,

interior decorator, and secretary. During this time, defendant

returned to Europe to conduct business and plaintiff remained in

the Franklin Lakes home with the children and their nanny. He

subsequently sold the property and plaintiff and the children

2 A-5656-13T2 moved to Tenafly where the children were enrolled in private

school. Defendant continued to provide support to plaintiff

from abroad.

In 2012, after defendant stopped supporting his children,

plaintiff obtained a court order for child support. The April

27, 2012 support order states: "A writ of Ne Exeat shall remain

entered against defendant" and requires that a "bond or

alternate security, if any[,] shall be posted in an amount to be

determined by the Court upon receipt of defendant's revised Case

Information Statement." The order also states: "The Warrant for

defendant's arrest shall remain outstanding until he satisfies

his support arrears and complies with the other terms of this

Order."

After a number of adjournments, the court scheduled the

matter for trial on December 4, 2012. Defendant sought another

adjournment, which the trial court denied. Defendant then

failed to appear for the trial and discharged his attorney. The

court entered a default against defendant and held a four-day

hearing on plaintiff's claims for relief. On May 1, 2013, the

trial court entered a default judgment. Defendant later moved

to vacate the default judgment, one day prior to the one-year

limit set forth in Rule 4:50-2. When this motion was denied, he

filed this appeal through counsel. While defendant initially

3 A-5656-13T2 submitted himself to New Jersey's jurisdiction by filing for

relief here, after the warrant was issued he left the country

and became a fugitive. The child support bench warrant first

issued in 2012 remains outstanding against him. Neither party

having raised the issue, we directed the parties at oral

argument to brief the issue of fugitive disentitlement.1

The fugitive disentitlement doctrine bars a fugitive from

seeking relief in the judicial system whose authority he or she

evades. Matsumoto v. Matsumoto, 171 N.J. 110, 120 (2002). The

doctrine is applicable to both civil and criminal cases. Id. at

128-29. In Matsumoto, Justice Long set forth the standards for

application of the doctrine:

[T]he party against whom the doctrine is to be invoked must be a fugitive in a civil or criminal proceeding; his or her fugitive status must have a significant connection to the issue with respect to which the doctrine is sought to be invoked; invocation of the doctrine must be necessary to enforce the judgment of the court or to avoid prejudice to the other party caused by the adversary's fugitive status; and invocation of the doctrine cannot be an excessive response.

[Id. at 129.] Justice Long underscored that the fugitive disentitlement

doctrine is not to be imposed as a punishment, but as an

1 We have ignored all facts set forth in these briefs that were not provided to the trial court.

4 A-5656-13T2 invocation of the court's inherent power to enforce its orders

"against those who have evaded them by fleeing either physically

or constructively." Id. at 135.

Here, defendant has been avoiding his court-ordered

responsibility to support his two children while at the same

time seeking to be heard by the court with regard to other

issues in the litigation. He seeks to avoid the imposition of

the doctrine because one of the issues in the case involves

custody. We agree that the doctrine is not generally consistent

with a proper analysis of the best interests of the child. See

id. at 133 (stating that "whatever limits the fugitive

disentitlement doctrine might impose in other settings would not

be applicable in a custody case in which no enforcement issue

exists"). Here, however, defendant has been afforded contact

with his children by way of continued "supervised parenting time

to be arranged as between the parties." Defendant offers no

custodial alternative, nor did he complain about custody

throughout the litigation — waiting until the last possible date

to file a motion to vacate default judgment. He may always

reopen the issue of custody should he be in a position to offer

his children a viable custodial alternative. See Hand v. Hand,

391 N.J. Super. 102, 105 (App. Div. 2007) (stating that a party

can modify a custody order by demonstrating "changed

5 A-5656-13T2 circumstances that affect the welfare of the children"). We

decline to afford him the protection of the court while he

flaunts the court's authority from overseas.

This appeal is therefore dismissed.

6 A-5656-13T2