Opinion
DOCKET NO. A-5405-12T3 DOCKET NO. A-1040-13T3
08-24-2015
ISABELLA BLUMBERG, Plaintiff-Respondent, v. GIRSH BLUMBERG, Defendant-Appellant.
Girsh Blumberg, appellant, argued the cause pro se. Isabella Blumberg, respondent, argued the cause pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Waugh and Maven. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-1243-10. Girsh Blumberg, appellant, argued the cause pro se. Isabella Blumberg, respondent, argued the cause pro se. PER CURIAM
Following a ten-day trial beginning March 12, 2012, and ending December 10, 2012, the Family Part judge issued an order disposing of several pre-trial motions along with a nine-page statement of reasons on May 1, 2013. On May 31, 2013, he granted a final judgment of divorce (FJD) and issued a twenty-six page written opinion deciding the issues of equitable distribution, alimony, custody, child support, and counsel fees.
In the first appeal, defendant Girsh Blumberg raises thirty-two points of error challenging the FJD, and several pre-trial orders, including the court's findings on jurisdiction, service of process, evidential matters, the court's decisions to end his testimony and to terminate trial, and its basis for granting a divorce. He also challenges the court's decisions on equitable distribution, alimony, child support, and counsel fees. In the second appeal, Girsh raises eight arguments challenging the two post-judgment orders dated August 16, 2013, granting plaintiff Isabella Blumberg's motions enforcing the FJD, denying Girsh's cross-motion to void the FJD, for a stay pending appeal, and appointing Isabella as the attorney-in-fact to effectuate the equitable distribution ordered in the FJD.
Following a careful review of the record on appeal, we reverse and remand for reconsideration of only the child support calculation for the parties' daughter. The FJD is otherwise affirmed. We also affirm the post-judgment orders.
I.
We glean the facts and procedural history from the extensive record on appeal.
Isabella and Girsh married on May 28, 1988, in the Soviet Republic of Estonia where they were born and raised. At that time, Isabella was a college student studying art. Girsh was working at the Institute of Physics in Tallinn, Estonia. In the early years of the marriage, as Girsh's career advanced, they lived in Estonia, moved to Jerusalem, back to Estonia, and then Sweden.
They relocated to the United States in 1992 when Girsh accepted a positon at the University of Illinois. They lived in Illinois for five years. During that time, Isabella worked as a computer illustrator. After the birth of their son in July 1993, she stayed home for two years. She returned to work until their daughter's birth in August 1996, after which she stayed home for six months. In late 1998, the family moved to New Jersey when Girsh accepted a position at Bell Labs, where he worked for ten years. In 2008, Girsh accepted a position as a physics professor at Rutgers University.
On February 5, 2010, Isabella filed a complaint for divorce on the basis of irreconcilable differences and extreme cruelty. She requested residential custody of the children, and an award of child support. She also requested spousal support and equitable distribution of the marital assets, as well as counsel fees. The same month, Girsh filed a complaint for divorce in Estonia. Both parties were represented by counsel.
Isabella experienced difficulties serving the divorce complaint on Girsh. According to Isabella, on February 12, 2010, Girsh left the home without taking any personal belongings and without telling her where he was staying. He did not respond to her telephone calls, and her attempts to personally serve him at his place of employment were unsuccessful. After noticing that Girsh no longer received mail at the marital home, Isabella discovered that he had a post office box. She mailed a copy of the complaint to that address, but he refused to claim the package. Girsh did not respond to her attorney's February 23, 2010 letter requesting information on how to effectuate service of process. Isabella filed an order to show cause (OTSC) requesting substitute service of process, pendente lite support, an award of counsel fees, authorization to subpoena financial records, and an order freezing certain accounts that were held in Girsh's name.
On April 8, 2010 the court found that Girsh had evaded personal service and, therefore, it authorized service by "certified mail, regular mail, or any other manner calculated to effectuate notice." The court further found that Isabella had served the complaint as of April 8, 2010, and granted Isabella's request to freeze the eight bank accounts and to serve subpoenas for financial records. It denied as non-emergent her request for pendente lite support and required her to file a regular motion.
Thereafter, extensive motion practice ensued beginning with Girsh's motion to vacate the April 8, 2010 order and to dismiss Isabella's complaint for lack of jurisdiction due to his pending divorce complaint in Estonia. The order, dated June 25, 2010, reflects that Girsh "withdraws his application to dismiss [Isabella's] Complaint for Divorce for lack of jurisdiction with prejudice." The court denied Girsh's motion to vacate the April order. However, the order included provisions that released money from several of the frozen accounts and permitted each party access to those funds.
On April 16, 2010, the Harju County Court "ruled not to consider" Girsh's complaint for divorce "pursuant to the Code of Civil Procedure § 423 (1) p.4, and denied consideration of" Girsh's request for property distribution and child custody. Girsh appealed the decision to the Tallinn Circuit Court of Estonia, which on June 2, 2010, left the County Court ruling unchanged. Girsh appealed this decision to the Estonian Supreme Court.
On November 29, 2010, the Supreme Court of Estonia "annulled" the lower court's orders "and sent the matter to Harju County Court to proceed with the hearing" on Girsh's claims. Ultimately, on July 4, 2011, the Harju County Court issued an order divorcing Isabella and Girsh. The Estonian court equally divided the parties' Estonian bank account valued at €48,000 (Euros), and awarded Girsh the marital home and residential custody of the children.
On July 21, 2010, Girsh filed an answer to Isabella's complaint along with a counterclaim for divorce based on extreme cruelty and adultery. He denied Isabella's allegations, requested legal and physical custody of the children, and asserted seventeen affirmative defenses including, but not limited to, lack of jurisdiction, insufficient service of process, failure to state a claim, bad faith, unclean hands, "willful erosion" of marital assets, and willful failure to obtain suitable employment. In his counterclaim, Girsh alleged assault, battery, unlawful surveillance, invasion of privacy, dissipation of marital assets, intentional infliction of emotional distress, negligent infliction of emotional distress, dissipation or diversion of marital assets, fraud and deceit, and interference with a business relationship and/or a prospective economic advantage. He requested a jury trial on the marital tort claims.
In August and September, the parties filed cross-motions with respect to pendente lite relief. Among them were Girsh's request to have Isabella pay the bills associated with the home, Isabella's motion for pendente lite support, and both parties' requests for counsel fees. The court heard these motions on September 24, 2010. At the close of the hearing, the court awarded Isabella $3500 per month in pendente lite support and scheduled a rehearing for December 2010 to allow Girsh additional time to respond to Isabella's request for support. The court ordered Girsh to pay the monthly mortgage, taxes and utilities, and to subtract those expense payments from the $3500 otherwise payable to Isabella.
The court also ordered the parties to mediate all issues and denied without prejudice the motions to dismiss, and their requests for counsel fees. Instead, it created a "litigation fund" with $114,000 of marital assets and directed the parties to pay their outstanding counsel fees, a retainer for a mediator, and the current balances on the mortgage, real estate taxes, Isabella's car insurance, and all utilities from the fund. "All other applications not specifically addressed" were denied without prejudice.
In 2011, the parties filed additional motions principally centered on Isabella's claims that Girsh failed to cooperate with the discovery process and failed to cooperate with the pendente lite orders; and Girsh's repeated challenges to the court's prior orders and his position that the court lacked subject matter jurisdiction because a divorce decree had been entered in the parties' native country of Estonia.
In October, Girsh filed an OTSC again seeking dismissal of Isabella's complaint for lack of jurisdiction. In addition, he requested supervised interaction between Isabella and the children; for Isabella to compensate him for "defamation and damages"; for restoration of his parental and property rights; for "immediate recovery" of all accounts and funds; and exclusive possession of the marital home. The motion supplemented his pending applications filed on November 18, 2010, March 2, March 31, April 21, July 22 and September 6, 2011.
The March 2, April 21, and September 6, 2011 applications are not in the record on appeal, and no other documents discuss them. The November 18, 2010 application addressed pendente lite support, and the March 31, 2011 application addressed pendente lite support, expenses, assets, custody, access to the home, destruction of personal property, and lost investments. The July 22, 2011 application sought dismissal of Isabella's complaint and unfreezing of assets.
On October 13, 2011, the court denied Girsh's OTSC as non-emergent and directed Girsh to file a motion and serve Isabella in accordance with the court rules. The only relief granted was to vacate a portion of the April 8, 2010 order and release funds from one frozen Wachovia bank account, estimated to contain $30,000. The court distributed the funds equally between the parties.
The transcript of the October 13, 2011 proceeding reflects that after concluding the motion hearing and distributing the order to the parties in court, the judge returned to the bench after a recess to clarify a provision of the order. Isabella was present in court but Girsh was not. On the record, the court specified that its order intended to distribute funds from the Wells Fargo bank account, formerly known as Wachovia POD, Account No. **16. The record does not contain a copy of any such amended order.
The judge underscored that the September 24, 2010 order, obligating Girsh to pay Isabella monthly pendente lite support of $3500 minus the amount he paid for monthly bills, remained in full force and effect. He also made clear that Girsh's efforts to enforce the Estonian divorce decree and to dismiss Isabella's complaint for lack of jurisdiction were futile. The court reminded the parties that the June 25, 2010 order reflected that Girsh withdrew his application to dismiss Isabella's complaint for divorce for lack of jurisdiction with prejudice.
On December 29, 2011, Girsh sought permission to file an interlocutory appeal challenging the trial court's refusal to dismiss the divorce complaint for lack of jurisdiction. On January 4, 2012, we declined to hear the appeal. Girsh petitioned for certification to the Supreme Court challenging the order denying his request for an interlocutory appeal. On March 9, 2012, the Supreme Court denied Girsh's request for leave to appeal our denial of interlocutory review.
On November 22, 2011, Isabella filed another motion to enforce the support order. She also requested that the court sanction Girsh for repeatedly violating its orders and grant her access to certain funds. Girsh responded with a cross-motion, requesting the same relief raised in previous applications and the October OTSC.
On January 13, 2012, the assigned trial judge addressed the cross-motions. The judge declared Girsh in violation of litigant's rights for failure to pay pendente lite support and expenses in accordance with the September 24, 2010 order. Girsh was ordered to pay Isabella within fourteen days' time, all support due from October to December 2011; bring current the bills associated with the marital home; and pay Isabella half of the funds in the Wells Fargo (formerly Wachovia) account **16. The judge denied Girsh's request to regain access to the marital home. Finally, the court scheduled trial to begin on February 21, 2012.
The transcript of this hearing is not in the record on appeal.
From January to March, 2012, Girsh wrote numerous letters to the trial judge raising his concerns about the case and his prior applications. On March 6, he again wrote to the judge complaining that the court had not ruled on motions he filed between May 3, 2010, and January 30, 2012.
The Trial
The court conducted a ten-day trial beginning March 12, 2012 and ending December 10, 2012. The parties represented themselves. On the first day of trial, the court began by addressing and denying Girsh's motions for reconsideration of the January 2012 order. The court also considered Girsh's motion for a jury trial on his marital tort claims. In response to the court's request for the proofs he intended to rely upon to establish his claim and right to a jury trial, Girsh provided only an intake evaluation and several progress notes from the Summit Medical Group Behavioral Health & Cognitive Therapy Center. The notes indicated that Girsh suffered from depression and insomnia due to the divorce. The court denied the request for a jury trial finding that Girsh neither presented an expert report showing that he suffered a serious and significant injury as a result of Isabella's alleged intentional conduct, nor established that the nature of his injury required complex medical evidence.
See Tevis v. Tevis, 79 N.J. 422, 434 (1979) (requiring that claims arising out of marital torts be brought in conjunction with matrimonial proceedings).
The trial began with Isabella's testimony regarding the marriage, the parties' incomes and expenses, the marital assets subject to equitable distribution, the children, and her request for alimony. After cross-examining Isabella for five days, Girsh testified and presented several witnesses. Girsh and Isabella submitted written closing arguments in January 2013.
The parties' incomes and expenses
Isabella testified that Girsh's starting salary at Bell Labs in 1988 was $100,000. When he accepted the professorship at Rutgers University in 2008, his salary was $130,000 per year. In 2009 his salary for the academic year was $128,090, and he earned an additional $4 3,332 during the summer months.
It took about a year for Isabella to find a job in New Jersey. In 1999, she accepted a graphic designer position in Summit because it was close to home and the children. Her total income that year was $51,000. From 2006 through 2010, Isabella did freelance graphic design work on a project-to-project basis and collected unemployment benefits. She earned $41,839 $49,900 during that time. In January 2011, she secured full-time employment as a graphic designer at Sharp Electronics, earning an annual salary of $76,380.
Isabella requested $33,695 in yearly alimony. The parties agreed that during the marriage Girsh paid the bills associated with the home (shelter expenses), which were essentially undisputed. Isabella represented that her monthly shelter expenses during the marriage and after the separation were the same, namely $2858.
Isabella testified she paid the family's monthly personal expenses, which according to her CIS were $3837. Girsh, on the other hand, calculated expenses of $1975.
The difference in their figures may be explained by Girsh's CIS that showed he placed less or no amount in the categories for groceries, school lunches, clothing, vacations, or the children's' camp and lessons.
Girsh believed that Isabella was willfully underemployed and that she was capable of earning a yearly income of $130,000. He attempted to introduce as evidence a "salary expert study from Business Administration" that showed the average salary for someone with Isabella's art skills in the New York City area was $129,000. The court excluded this testimony as hearsay.
Girsh questioned the accuracy of Isabella's personal expenses and why she could not account for all of her income during the marriage. He claimed that over a period of ten years, her average income was $4 5,000 per year, or $450,000 for ten years. Relying on one of her credit card statements, he argued that she spent only about $15,000 of her income per year, or $150,000 over a ten year period. He cross-examined her on what she did with the remaining $300,000. Isabella could not explain where all of her pay went, but did not agree that she spent only $15,000 per year. Girsh urged the court to find that Isabella had hidden or dissipated $300,000 because she could not account for it.
In his September 2011 CIS, Girsh reported his 2010 annual wages as $131,013, with a net weekly income of $955. He represented that his total shelter expenses had increased from $2595 during the marriage to $3305 currently, attributing the increase to mortgage payments for the marital home. Girsh claimed that he became homeless after the judge awarded Isabella possession of the marital home.
Financial Accounts
Isabella testified that during the marriage Girsh wanted her to account for every penny she spent, and she refused to do so. She explained that he had access to her income, as she deposited her money into a joint checking account. From the joint checking account, Isabella paid the family's personal expenses. This joint account was the only account titled in her name. Girsh held the other accounts in his name and did not share financial information with her. After paying the bills, Girsh invested the rest of his income for retirement and the children's education. Isabella's ability to establish their financial worth was limited to accounts of which she was aware.
Isabella testified that by 2007, she suspected that Girsh was hiding money from her. After she subpoenaed documents regarding his accounts, she discovered that from January 16, 2009, to May 1, 2010, Girsh had withdrawn a total of $244,090. Isabella introduced into evidence a chart depicting the $244,090 in withdrawals, and the supporting documentation on which she relied. With the exception of deposits into an account shared with his sister, Isabella was unaware of the dispersion of the funds. Girsh denied knowing what he did with any of the funds, explaining that he could not trace his investments or accounts because his personal documents were all located inside the marital home.
The following is a list of bank, retirement and investment accounts held in the United States and Estonia addressed by the trial court:
• Three AFCU accounts
• Wells Fargo (previously Wachovia POD **16)
• UBS Bank Account
• VFINX-TD Ameritrade
• Rutgers TIAA CREF
• Alcatel Lucent 401(k)
• Merrill Lynch TBP 401(k)
• Fidelity 401(k)
• Fidelity Keogh
• Fidelity SEP IRA
• Charles Schwab Roth IRA
• Charles Schwab Roth Rollover IRA
• Estonian bank accounts
Valuation of the marital home
The marital home is located in New Providence. Girsh testified that he purchased the home for $285,000 and used funds from an account that he held in Estonia to pay twenty percent of the purchase price. The home was titled in his name only. The court-appointed expert appraised it as of November 24, 2010, at $418,000. Relying on the appraisal, Isabella estimated the equity to be approximately $2 60,000. Because he did not retain the appraiser, Girsh objected to the court's reliance on the report. In his July 2010 CIS, he estimated the home's value at $500,000 with an outstanding mortgage of $162,915. In his September 2011 CIS, however, he listed the home's value at $418,000, with an outstanding mortgage balance of $162,915, resulting in equity of $255,085.
Tallinn, Estonia properties
The parties testified to having an interest in two apartments and one parcel of vacant land in Estonia. According to Girsh, he owned the apartment in Tallinn where he and Isabella lived when they were first married. He inherited his grandparents' interest in the apartment in 1984. Girsh became the absolute owner of the apartment after Estonia became an independent country, and enacted its Privatization Act of June 17, 1993. On his July 2010 CIS, Girsh listed the value of the apartment as €54,498. He listed no value for the apartment in his September 2011, CIS. Without explanation, in her brief Isabella indicated it was worth $56,469. Girsh also acquired undeveloped land in Estonia from his employer in 1986. Neither party listed a value for the land on their CISs. Isabella testified that she owned an apartment in Estonia, but in 2006 gave Girsh's father power of attorney to sell it. She believed that it sold for $80,000, but she never saw any documents regarding the sale. Her father-in-law gave her only $20,000, which she deposited into the checking account that she shared with Girsh. Girsh testified that this property was a summer cottage he purchased for Isabella and titled in her name. He claimed that when she sold it she gave the proceeds to her mother.
The children
Isabella requested sole physical custody of the children and an award of child support. She testified that throughout the marriage, she was the children's primary caretaker, as Girsh worked long hours. After their separation, Isabella continued to live in the home with their daughter, who at the time of trial was a sophomore in high school. Between July 2011 and March 2012, Girsh and his daughter spoke infrequently. Their son was a full-time freshman at Rutgers University, New Brunswick. He lived in the dormitory during the school year and with Isabella during school breaks and summer recess.
Girsh denied that Isabella was the children's primary caregiver. He also requested primary physical custody of the children.
Automobiles, furniture, and patents
Girsh claimed he owned a Honda Accord worth $4 000 and Isabella owned a Honda Civic worth $14,000. Isabella testified that at the time she filed the complaint, she had an outstanding car loan of $6457, which she paid off during the litigation. She estimated they had $15,000 worth of household furnishings. She also believed Girsh owned patents through Lucent Technologies (formerly Bell Labs), but she did not know the value.
The court's rulings
In the May 31, 2013 opinion, the trial court first ruled that the June 25, 2010 order recognized that Girsh, through counsel, "willfully abandoned" his challenge to New Jersey's jurisdiction, with prejudice, and the October 13, 2011 order upheld that prior determination. The trial court ruled that the issue had been considered and rejected by a prior judge, and, therefore, honored that prior decision. The court also ruled that New Jersey law applied, notwithstanding the existence of an Estonian divorce decree.
With respect to Girsh's assertion that the court prematurely terminated the trial, the court noted that it had the authority under N.J.R.E. 611 to end testimony and close the record. The court noted further that this case was not complex and could have been tried by experienced matrimonial attorneys in two to three days. The court allowed the trial to continue for ten days to allow these self-represented litigants the time to produce all the relevant proofs.
The court next reviewed the testimony of the parties and found Girsh was not a credible witness. After weighing the evidence, the court awarded Isabella sole physical custody of their daughter and granted Girsh parenting time on alternating weekends and holidays. The court did not issue a custody award for their son, who was an adult at the time. The court calculated support using the New Jersey Child Support Guidelines found in Appendix IX-A of the New Jersey Court Rules and ordered Girsh to pay weekly $285 for their daughter. Pursuant to N.J.S.A. 2A:34-23(a), the court established a weekly support obligation of $75 for their son. The court awarded Isabella $33,965 in yearly alimony and ordered Girsh to pay an additional $200 a week until he satisfied the pendente lite support payments that he failed to make during the litigation.
The court found that the marital assets were subject to equal division, given the length of the marriage and the parties' joint contributions. The assets included the marital home ($420,000 value); the Tallinn, Estonia apartment ($56,000 value); $70,422 in Estonian bank accounts; and the bank, retirement and investment accounts held in the United States. The court ordered the parties to retain their own automobiles and personal property and to divide the furniture. It denied Isabella's request for an interest in the patents, finding insufficient evidence that they belonged to Girsh and not to his former employer.
The court found that Girsh had dissipated $244,090 of marital funds between January 2009 and May 2010, and, therefore, awarded Isabella ownership of the marital home ($420,000 value) as compensation. The court granted Isabella a $63,211 credit against Girsh's share of assets located in the United States in lieu of her share of assets held in Estonia. The credit comprised her fifty percent interest in the Tallinn, Estonia apartment ($28,000) and half of the $70,422 (€54,498) in Estonian bank accounts ($35,211). The court denied both parties' requests for counsel fees.
On July 11, 2013, Girsh filed a notice of appeal challenging the FJD and several prejudgment orders. Shortly thereafter, he requested a stay of the FJD pending appeal, which we denied.
The Notice of Appeal includes orders dated April 8, 2010, September 24, 2010, October 13, 2011, March 12, 2012, October 5, 2012, October 25, 2012, November 7, 2012, May 1, 2013, and the May 31, 2013 FJD.
Post-judgment orders
On July 23, 2013, Isabella filed a motion to enforce the FJD and to declare Girsh in violation of litigant's rights. Girsh filed a cross-motion requesting a stay of the FJD pending appeal, and to vacate the FJD. On August 16, 2013, the court found Girsh in violation of litigant's rights for failing to provide an accounting of the bills that he claimed to have paid, as required in the FJD. Accordingly, the court only granted him a credit of $10,000 for funds transferred to Isabella during trial, but added $15,260 to arrears for support payments that Girsh failed to make from November 2012 to May 2013.
In the second August 2013 order, the court denied Girsh's request for a stay because he did not establish a likelihood of success on the merits and irreparable injury if the stay was denied. The court also found that Girsh presented no evidence demonstrating that the equitable distribution award was erroneous. These appeals followed.
II.
On appeal, Girsh contends the trial court abused its discretion by failing to recognize the Estonian divorce, and by entering pre-trial orders and the FJD in a manner inconsistent with constitutional due process and New Jersey Court Rules. In a separate appeal, Girsh contends the court lacked the authority to address the post-judgment motions seeking enforcement of the FJD while the matter was pending appeal.
Our review of a family judge's factual findings and credibility determinations following a non-jury trial is limited. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). "We are bound by the trial court's findings 'when supported by adequate, substantial, credible evidence.'" Finamore v. Aronson, 382 N.J. Super. 514, 519 (App. Div. 2006) (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citations omitted)). "Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility." Cesare, supra, 154 N.J. at 412 (citation and internal quotation marks omitted). We afford particular deference "to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (citing Cesare, supra, 154 N.J. at 413). This "'feel of the case' . . . can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)).
Reversal is warranted when a trial court's findings are "so wide of the mark that a mistake must have been made[,]" M.M., supra, 189 N.J. at 279 (citations and internal quotation marks omitted), including factual findings "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221, (1963)). Simply stated, when a reviewing court concludes there is insufficient evidentiary support for the trial court's findings, we reverse.
We also consider whether the trial judge properly exercised reasonable discretion. "While the 'abuse of discretion standard defies precise definition,' we may find an abuse of discretion when a decision 'rest[s] on an impermissible basis' or was 'based upon a consideration of irrelevant or inappropriate factors.'" State v. Steele, 430 N.J. Super. 24, 34-35 (App. Div.) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (citations and internal quotation marks omitted)), certif. granted, 214 N.J. 233 (2013). Finally, our review of a trial court's legal conclusions is always de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
III.
Having reviewed Girsh's appellate arguments in light of the record and the applicable law, with the exception of the child support order, we have no hesitancy in concluding that the trial judge's factual findings are well-supported by the record. The judge correctly applied the law pertaining to custody and parenting time, and considered each factor under N.J.S.A. 9:2-4 in light of his factual findings. In determining alimony, the judge appropriately considered the criteria set forth in N.J.S.A. 2A:34-23(b), and for equitable distribution, N.J.S.A. 2A:34-23.1. Thus we do not reweigh the evidence based on the parties' appellate arguments, make our own factual determinations de novo, or exercise original jurisdiction as Girsh requests. Our duty is to ensure that the factual findings made by the trial court are reasonably grounded in the record and on that basis there is no reason to disturb the FJD or pre-trial orders. Therefore, except for child support, we affirm substantially for the reasons set forth in the trial court's comprehensive written opinion. The court had the authority to enforce the FJD and affirm the post-judgment orders for the reasons stated in the trial judge's August 16, 2013 oral decision. R. 2:11-3(e)(1)(A). We add only the following. A. Conduct of Trial
Girsh argues that the court erred by denying him a fair opportunity to present his case by: (1) limiting his cross-examination of Isabella; (2) refusing to allow him to respond to her testimony; (3) terminating his direct testimony; and (4) precluding closing arguments.
On the first day of trial, Isabella testified and presented her case-in-chief. Girsh then cross-examined her for five days. During this examination, he attempted to question Isabella about "the litigation" and the orders entered during the litigation. On several occasions, the judge interrupted the questioning when the information sought was irrelevant to the issues in the case or redundant of earlier testimony. On the third day of questioning, the judge said: "I'm telling you right now, we are not going to spend days going over every charge she's ever had to try and get to a number [on her spending] that you think is accurate. If there's a point you're going to make and that it's clear [sic], I'm just going to ask you to make it quickly." The court would not allow the trial to get "bogged down in minutia." On day four, Girsh complained that he could not "shortcut" all the issues when Isabella had taken "three years of [his] life" litigating "something completely ridiculous that could have been resolved in five minutes." He believed he had to cover all issues addressed in his prior submissions because the court denied all of them without reading them. The court stated that Girsh had two additional days to complete his examination.
On the fifth day of cross-examination, Isabella complained that Girsh had cross-examined her for eight hours, and her direct examination lasted only fifty minutes. During the sixth day of trial, in response to Girsh's attempt to challenge Isabella's April 2010 certification filed in support of her motion for substituted service, the judge excluded the proposed questioning as cumulative pursuant to Evidence Rule 403. The judge explained:
I've said from day one, from day one, that I'm going to determine this case based on the facts that are presented at the time of trial regarding the issues between the parties, not what's gone on during the course of the litigation. Under evidence rule 403, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of undue prejudice, confusion of issues, misleading information, undue delay, waste of time, or needless presentation of cumulative evidence.After redirecting Girsh's questions and areas of inquiry several times, the judge ended cross-examination.
We've had -- as noted, today is day six of a trial which is really not a very complicated trial, quite frankly, and at this point I don't find that anything in this line of questioning would be in any way helpful to the finder of fact in determining the evidence between the parties. We're not
going to re-litigate three years of litigation, we're not going to start cross-examining on whether . . . somehow she could have found him to serve the complaint with [sic]. Under evidence rule 403, that's exactly this type of needless, wasteful information that's just going to serve to delay this trial and not to allow the Court to make a determination on the facts of the event.
The court ended trial while Girsh was presenting his third day of direct testimony. During the first two days, Girsh primarily discussed his education and economic status prior to and early on in the marriage, as well as his career and contributions to the family. On the third day, he called his witnesses. On this same day, Girsh stated that he was going to address child custody, but instead he proceeded to discuss his religious beliefs and repeatedly attempted to raise arguments that had been previously addressed, notwithstanding the court's admonitions. As he began testifying that he and Isabella had not immigrated to the United States, the judge interjected:
I'm telling [you] right now, I want to be really clear because at some point or other I'm going to cut off the evidence because I've already heard your testimony, and I've already heard Ms. Blumberg's testimony about how you came to the United States . . . . I can't keep hearing the same testimony over and over again. It's not helpful to the Court and we have to get to an end to [in]After giving Girsh several opportunities to continue relevant testimony, the court ended the testimony. The judge explained:
this trial. So I've heard testimony from both of you exhaustively . . . [on the issue.]
Dr. Blumberg, I think I've heard enough. Thank you.The judge gave the parties time to prepare written summations, and did not limit their lengths.
Okay. It's ten after four. Let me tell you, this trial -- I believe -- I may be wrong -- it is at least the tenth day of trial and I told you that -- I told you early on, I think it was in July, we're sitting here in December, that I was concerned with the length of time that this matter has been taking. We now have had approximately ten days of testimony in what has essentially been a two-witness case.
Even with the best, most thorough attorneys in the world, this case should have taken three, perhaps four days. It's gotten to the point everyone has testified, everyone has called -- has asked questions of the other person; that the amount of information I'm getting that is new is, at this point, minuscule. It's the job of the Court to control the proceedings and how the evidence is heard. I am satisfied now that I have heard all the evidence that I'm going to hear in this case . . . .
N.J.R.E. 403 provides that "evidence, otherwise admissible, may nevertheless be excluded if the judge, in his discretion, finds that its probative value is substantially outweighed by any of the factors enumerated in the rule." Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 403 (2015). Such factors include "(a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." N.J.R.E. 403. Further, pursuant to N.J.R.E. 611(a), the trial judge has "broad discretion" to control the "mode and order of interrogation and presentation" so as to, among other things, "avoid needless consumption of time." "Exercise of that discretion is ordinarily not interfered with unless there is a clear abuse of discretion which has deprived a party of a fair trial." Persley v. N.J. Transit Bus Operations, 357 N.J. Super. 1, 9 (App. Div.), certif. denied, 177 N.J. 490 (2003); Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 611 (2015).
Our independent review of the entire record reveals that the trial judge conducted a fair and impartial trial. On the final day of his direct testimony, Girsh did not present any new evidence, but rather, argued legal issues that had previously been decided and testified to matters that had already been addressed. The court gave him numerous warnings and repeatedly requested that he present new information. We see no error in the manner in which the judge controlled the trial by redirecting Girsh on the areas of inquiry, addressing Isabella's objections, and by instructing her to respond to appropriate questions. Accordingly, we are satisfied that the judge did not abuse his discretion in the conduct of the trial. B. Choice of Law
Girsh contends that the court erred in denying his request to dismiss Isabella's complaint for lack of subject-matter jurisdiction, reasoning that after the Estonian court issued its July 4, 2011 divorce decree, there was no longer a marriage for the Family Part to dissolve. He further contends that the court was required to recognize the Estonian divorce decree under principles of full faith and credit, comity, the first-filed rule, res judicata, and the law-of-the-case. He argues that the doctrine of collateral estoppel did not preclude him from raising the jurisdictional challenge because the court never issued a final decision on the merits of that challenge. We conclude these claims lack merit.
Collateral estoppel provides that a party may not argue an issue of fact or law that was "actually litigated and determined by a valid and final judgment" in a prior proceeding between the parties. Winters v. N. Hudson Reg'l Fire & Rescue, 212 N.J. 67, 85 (2012) (quoting Restatement (Second) of Judgments § 27 (1982)). Because it is an equitable doctrine, the court may choose to not apply it in the interest of fairness. Pace v. Kuchinsky, 347 N.J. Super. 202, 216 (App. Div. 2002).
The law-of-the-case doctrine is also an equitable principle that precludes litigation of claims already decided. Lombardi v. Masso, 207 N.J. 517, 538 (2011). It provides "that a legal decision made in a particular matter 'should be respected by all other lower or equal courts during the pendency of that case.'" Ibid. (quoting Lanzet v. Greenberg, 126 N.J. 168, 192 (1991)). A court may decline to apply the doctrine when "the pursuit of justice and, particularly, the search for truth" weigh against its application. Id. at 538-39 (quoting Hart v. City of Jersey City, 308 N.J. Super. 487, 498 (App. Div. 1998)).
The legal principle known as comity
is neither a matter of absolute obligation on the one hand nor of mere courtesy and good will upon the other. But it is the recognition which one nation allows within its territory to the . . . judicial acts of another nation, having due regard both to international duty and convenience and to the rights of its own citizens or of other persons who are under the protection of its laws."The recognition of a judgment of a foreign court under the principle of comity is subject generally to two conditions: (1) that the foreign court had jurisdiction of the subject matter; (2) that the foreign judgment will not offend the public policy of our own State." Id. at 533.
[Fantony v. Fantony, 21 N.J. 525, 533 (1956) (citing Hilton v. Guyot, 159 U.S. 113, 16 S. Ct. 139, 143, 40 L. Ed. 95 (1895)) (citations omitted).]
New Jersey has long adhered to "the general rule that the court which first acquires jurisdiction has precedence in the absence of special equities." Sajjad v. Cheema, 428 N.J. Super. 160, 180 (App. Div. 2012) (quoting Sensient Colors, Inc. v. Allstate Ins. Co., 193 N.J. 373, 386 (2008)). "Under the first-filed rule, a New Jersey state court ordinarily will stay or dismiss a civil action in deference to an already pending, substantially similar lawsuit in another state, unless compelling reasons dictate that it retain jurisdiction." Ibid. Thus, a court reviewing a request to apply comity to a foreign judgment must determine whether "the foreign court had jurisdiction of the subject matter" and whether "the foreign judgment will not offend the public policy of our own State." Fantony, supra, 21 N.J. at 533.
In Bass v. DeVink, we held that in "[a]pplying principles of comity, we have long adhered to the general rule that the court first acquiring jurisdiction has precedence absent special equities." 336 N.J. Super. 450, 455 (App. Div.), certif. denied, 168 N.J. 292 (2001) (citation omitted). We also laid a framework for analyzing questions involving the filing of similar litigation in two separate jurisdictions:
The defendant bears the initial burden of establishing three predicate facts:
(1) there is a first-filed action in another state,
(2) both cases involve the same parties, the same claims, and the same legal issues, and
(3) the plaintiff will have the opportunity for adequate relief in the prior jurisdiction.
[Id. at 456.]
In this case, Isabella filed her divorce complaint in New Jersey on February 5, 2010 and, according to the Estonia decree, Girsh filed his complaint in Estonia on February 4. On April 16, 2010, the Estonian court denied Girsh's divorce complaint and requests for property distribution and child custody. Only after a remand by its Supreme Court did the Estonian Court hear the matter and grant the divorce, in July 2011.
Under the principles set forth above, we conclude the court did not err in refusing to grant comity to the Estonian decree. While Girsh may have filed his complaint first, the Estonian judgment did not address the same claims and legal issues as the New Jersey action. The Estonian judgment only divided the Estonian bank accounts, awarded Girsh the marital home, and granted him joint custody of the children. Here, the court considered the distribution of the marital assets sited in New Jersey and Estonia, including numerous bank and retirement accounts, and real and personal property. In addition, the court addressed legal issues not present in the Estonian matter.
Estonia had no jurisdiction to address the custody of the children. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), N.J.S.A. §§ 2A:34-53 to -95, governs the determination of subject matter jurisdiction in interstate, as well as international, custody disputes. Sajjad, supra, 428 N.J. Super. at 170. The UCCJEA treats a foreign sovereign "as if it were a state of the United States . . . if the foreign court gives notice and an opportunity to be heard to all parties before making child custody determinations." N.J.S.A. 2A:34-57(a). Ibid. Under the UCCJEA, the child's "home state" is the exclusive basis for jurisdiction of a custody determination. Dalessio v. Gallagher, 414 N.J. Super. 18, 26 (App. Div. 2010). In an initial request for custody,
a. . . . a court of this State has jurisdiction to make an initial child custody determination [ ] if:
(1) this State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State;
. . . .
b. Subsection a. of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this State.
c. Physical presence of, or personal jurisdiction over, a party or a child is neither necessary nor sufficient to make a child custody determination.
[N.J.S.A. 2A:34-65(a), (b), (c).]
In this case, the children never resided in Estonia, only in New Jersey. Thus, New Jersey, not Estonia, was the children's' home state for purposes of attaining jurisdiction to address custody.
Lastly, Isabella would not have been able to adjudicate her financial claims fully or have had the "opportunity for adequate relief" in Estonia. She needed to subpoena Girsh's United States bank records.
As to whether a foreign judgment has a preclusive effect in our state court, "it is well-established that judgments rendered in a foreign nation are not entitled to the protection of full faith and credit." Innes v. Carrascosa, 391 N.J. Super. 453, 495 (App. Div.) (internal quotations omitted), certif. denied, 192 N.J. 73 (2007).
In addressing Girsh's choice-of-law argument, the trial judge explained that under D'Agostino v. Johnson & Johnson, 133 N.J. 516, 523 (1993), and Veazey v. Doremus, 103 N.J. 244, 247 (1986), our courts apply a governmental-interest analysis. The choice-of-law rule set forth in the D'Agostino and Veazey decisions is applicable to divorce cases. See El-Maksoud v. El-Maksoud, 237 N.J. Super. 483, 491 (Ch. Div. 1989) (citing D'Agostino, supra, 133 N.J. at 523, in discussing a choice-of-law issue in a divorce case).
New Jersey had the greater interest in this case because the parties spent at least the last twelve years living, working and raising their children in this state, and most of their property was located here. They were also United States citizens who had lived in this country for more than twenty years. Accordingly, we conclude the trial judge did not abuse his discretion by disregarding the foreign judgment and applying New Jersey law. C. Post-judgment Orders
Girsh also contends the court had no authority to rule on the post-judgment motions during the pendency of an appeal. We disagree. A trial court has jurisdiction to enforce orders pending appeal. Rule 2:9-1 provides:
Except as otherwise provided by Rules 2:9-3, 2:9-4 (bail), 2:9-5 (stay pending appeal), 2:9-7 and 3:21-10(d), the supervision and control of the proceedings on appeal or certification shall be in the appellate court from the time the appeal isSee also D'Angelo v. D'Angelo, 208 N.J. Super. 729, 731 (Ch. Div. 1986) (stating "Clearly, this court has authority to enforce its own judgments. . . . To hold otherwise would frustrate the power of the court to enforce its own decrees").
taken or the notice of petition for certification filed. The trial court, however, shall have continuing jurisdiction to enforce judgments and orders pursuant to Rule 1:10 [contempt of court and enforcement of litigant's rights] and as otherwise provided.
The post-judgment orders in this case merely enforced the FJD. The court appointed Isabella as Girsh's attorney-in-fact to effectuate property distribution. N.J.S.A. 17:9A-28. The court made no substantive changes to the FJD. The court also appropriately declared Girsh in violation of litigant's rights because he failed to provide an accounting of the bills he paid pendente lite. The post-judgment hearing occurred in August, roughly three months after the court issued its final judgment. Girsh had sufficient time to provide the accounting, and failed to do so. Hence the court increased the arrears in accordance with Isabella's accounting. We discern no error in that exercise of discretion.
Moreover, the court correctly denied Girsh's request for a stay pending appeal. In determining whether to grant a stay, a court weighs "the equities including the factors of irreparable harm, existence of a meritorious issue and the likelihood of success." Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 2:9-5 (2015) (citing Garden State Equality v. Dow, 216 N.J. 314, 320-21 (2013); Crowe v. De Gioia, 90 N.J. 126, 133-35 (1982)). The court's decision will not be disturbed on appeal so long as it did not amount to an abuse of discretion. Ibid.
Here, Girsh failed to establish a likelihood of success on the merits and he failed to establish that he would suffer irreparable harm if the stay was denied. "[M]ere injuries, however substantial, in terms of money . . . are not enough" to establish a basis for a stay pending appeal. Zoning Bd. of Adjustment v. Service Elec. Cable Television of N.J., 198 N.J. Super. 370, 381 (App. Div. 1985) (quoting Virginia Petroleum Job. Ass'n v. Federal Power Comm'n, 259 F.2d 921, 925 (D.C. Cir. 1958)). Girsh's injuries in this case were financial. In sum, the court did not err in denying a stay of the motion. D. Child Support
Girsh complains that the court should not have awarded Isabella any support for their son because she did not have legal custody of him and she did not contribute to his support. He also claims that the court erred in computing support for their daughter because it used an inaccurate salary amount for him, and did not account for his mandatory retirement contributions, union dues, department deductions, and health insurance premiums.
In determining Girsh's income, the trial judge rejected as incredible and unsupported by evidence Girsh's assertion that his current yearly income was $130,000. The judge explained that according to Isabella's credible testimony, when Girsh became a Rutgers professor in 2008, his salary for the academic year was $130,000, and he earned an additional $43,000 during the summer months, totaling $173,000. In a footnote, the trial judge stated that "[a] simple database search of Rutgers's employees indicate[d]" that in 2012 Girsh's "base salary was $139,245.17 and his total income was $184,718.42." The court used this figure as Girsh's yearly income for purposes of setting support.
The court's findings must be based on the evidence presented at trial. Heinl v. Heinl, 287 N.J. Super. 337 (App. Div. 1996). Here, the judge looked outside the record for evidence of Girsh's income without providing the parties notice and an opportunity to be heard on the matter. He then computed child support based on a figure not based on the evidence presented by the parties.
In addition, a review of the Child Support Guidelines Worksheet attached to the FJD reveals that when calculating support for the daughter, the court did not consider all applicable deductions for Girsh, such as any mandatory retirement contributions, union dues, department deductions, and health insurance premiums. See New Jersey Child Support Guidelines, Appendix IX to New Jersey Court Rule 5:6A.
With respect to the separate support obligation for the son, we do not conclude that the court erred in awarding Isabella $75 per week. As the court found, both parents valued education and intended to support their children while they attended college. The son had minimal tuition or related expenses while attending Rutgers given Girsh's employment. During the marriage, Isabella paid for the children's personal expenses, and their son lives in the family home with her during school breaks and the summer months. Based on the salaries that the court applied, $75 weekly support for their son is reasonable.
Thus, on remand, the court must re-calculate child support for the daughter and establish the appropriate income and deductions for Girsh based on the record evidence. We leave to the court's discretion the determination whether to use $173,000 as his income, because the court found Isabella's testimony as to this figure credible, or to allow the parties to present additional evidence on the issue.
Girsh's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, reversed in part. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION