R.J.E. v. R.I.E., A-4592-19

• Decision Date: 24 August 2021
• Docket Number: A-4592-19
• Parties: R.J.E., Plaintiff-Respondent, v. R.I.E., Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

R.J.E., Plaintiff-Respondent, v. R.I.E., Defendant-Appellant.

No. A-4592-19

Superior Court of New Jersey, Appellate Division

August 24, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 5, 2021

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No FM-18-0336-19.

Bilal Hill, attorney for appellant.

Henricks & Henricks, attorneys for respondent R.J.E (Patricia M. Love, on the brief).

Lyons & Associates, PC, attorneys for respondent Sara E. Kucsan (Sara E. Kucsan, of counsel and on the brief).

Before Judges Vernoia and Enright.

PER CURIAM.

In this matrimonial matter, defendant R.I.E.^[1] appeals from the March 12 2020 Judgment of Divorce (JOD), the July 16, 2020 amended JOD (AJOD), and pendente lite orders entered on August 16 and September 13, 2019. She also challenges certain evidentiary rulings rendered during the parties' four-day divorce trial. We affirm.

Defendant and plaintiff R.J.E. were married in May 1995. No children were born of the marriage, but both parties have adult children from prior relationships. Plaintiff is seventy-seven years old; defendant is sixty-seven years old.^[2]

During the marriage, defendant was the primary wage earner for the family, working as a critical care nurse. In 2017, she grossed approximately $182, 000. Plaintiff performed building and construction work during the early years of the parties' marriage, but in 2003, he suffered a stroke and stopped driving that same year. He subsequently retired and was receiving $638 per month from his Canadian government pension at the time of trial.

Defendant's November 2019 CIS reflected that the parties' marital lifestyle budget totaled over $14, 000 per month, whereas her personal current lifestyle budget was calculated to be slightly over $12, 200 per month. According to defendant, plaintiff "never contributed to the marital expenses." Plaintiff's November 2019 CIS did not include a marital lifestyle budget, but his personal budget was calculated to be roughly $5300 per month, which included $1280 worth of expenses for a "caregiver" and adult day care.

Plaintiff filed a complaint for divorce in September 2018. Three months later, defendant filed an answer without a counterclaim. During the initial stage of the divorce proceedings, the parties lived together, albeit in separate areas of the marital home, just as they had for several years prior to their divorce proceedings. In April 2019, following an argument, the police were called to the parties' home. Each party secured a temporary restraining order (TRO) against the other, but plaintiff was restrained from the home.^[3] A family friend, E.S., retrieved plaintiff from a Holiday Inn the next day, after plaintiff left a message on her answering machine, advising he was "thrown out of [his] house" and he did not know where he was.

The parties subsequently dismissed their TROs and entered into a consent order which provided defendant with "exclusive possession of the marital home pending resolution of the divorce" and restrained plaintiff from contacting her. From April 2019 until October 2019, plaintiff lived with E.S., and then relocated to Canada to live with his daughter. He was awaiting placement in either a nursing home or "memory care" facility at the time of trial.

At a case management conference on June 24, 2019, defendant's attorney sought to amend defendant's pleadings to include a Tevis^[4] count. The court granted him a brief period to file a motion to formally request the amendment. Also, during the case management conference, defendant's attorney stated he needed more time to prepare for trial, in part, because plaintiff was "going through a mental evaluation in connection with his criminal charges." Counsel stated, "I think we need to get the results of that before [plaintiff] can stand trial in this matter." Plaintiff's attorney acknowledged plaintiff was due to see a neurologist in September 2019. The judge asked the parties' attorneys if they had discussed using a guardian ad litem (GAL). The following exchange ensued between the judge and counsel:

COURT: I took [plaintiff's TRO] application .... I do recall that he had significant difficulty in remembering dates and times. I mean, significant. The court, you know, with all due respect -

DEFENDANT'S COUNSEL: Your Honor -

COURT: -- I mean, I was very patient, and I really tried, but the court does recall that he had significant issues with his memory ....

DEFENDANT'S COUNSEL: Yes. And then when we started the TRO trial, the judge kept referring to him as a party and he kept responding that he didn't attend a party. And it just went back and forth for five minutes. I just don't know how we can conduct a trial like that.

COURT: Right.

DEFENDANT'S COUNSEL: I do know my adversary here is his power of attorney. So, she's almost his de facto [GAL].

PLAINTIFF'S COUNSEL: No, I'm not his power of attorney.

DEFENDANT'S COUNSEL: Oh, I thought you were. Okay.

PLAINTIFF'S COUNSEL: There is a power of attorney who is a friend with whom he's staying because of the TRO having been filed. Basically, he had nowhere else to go.

COURT: Right.

PLAINTIFF'S COUNSEL: And so, he's living with her until this is resolved.

COURT: I mean, is there an objection to -- let's step back. Is there money to pay for a [GAL]?

PLAINTIFF'S COUNSEL: I don't -- my client has nothing.

COURT: That's the other issue.

PLAINTIFF'S COUNSEL: Yes.

COURT: Is there an objection to a [GAL] being appointed at this time on the court's own motion? And we would really have to see if somebody could do it on a pro bono basis.

DEFENDANT'S COUNSEL: Not if it's going to cost my client money, no.

COURT: I said we'd have to see about it being on a pro bono basis.

DEFENDANT'S COUNSEL: No objection, Your Honor.

PLAINTIFF'S COUNSEL: There's no objection by me.

COURT: I think that could assist in trying to resolve the matter. Okay. You know what, I think, rather than do a pretrial order, let's just do an order appointing a [GAL] for the plaintiff, indicating that discovery is to be completed in accordance with [the previously assigned judge's] order but no later than August 15th for all discovery. Defendant to file a motion to amend the complaint by July 8th. I'm not going to assign trial dates. I'm going to schedule it . . . for another pretrial conference in August. How's that? And we can see where we're at.

DEFENDANT'S COUNSEL: Okay, Your Honor.

The trial court entered an order that day, to which counsel affixed their signatures. The order provided: "[t]he court hereby appoints a [GAL] for the plaintiff, upon consent." On August 6, 2019, the judge entered a supplemental order specifically naming a GAL. The August 6 order confirmed the GAL was assigned "to represent the interests of the plaintiff." Notwithstanding defendant's position on appeal that the GAL's "appointment was predicated on it not costing [defendant] any money," the above exchange confirms the trial court was willing to explore a pro bono appointment but did not direct that the GAL would serve without compensation. In fact, neither the June 24, nor the August 6, 2019 order contains such a proviso, and defendant did not seek reconsideration or appeal from either order.^[5]

On August 16, 2019, the trial court denied defendant's request to amend her answer and granted plaintiff pendente lite support. The motion judge found, "[t]here has been no credible, reliable, or verifiable proof to show that defendant was subject to extreme cruelty, assault and/or battery, or intentional infliction of emotional distress within the past year." Citing to Rule 5:4-2(e), and noting defendant's proposed counterclaim referred to acts that occurred between 1999 and 2014, the judge concluded it was "not proper for defendant to supplement [her pleadings] as the alleged acts . . . took place well before the filing of plaintiff's original complaint. "

Additionally, the judge awarded plaintiff pendente lite support in the sum of $2500 per month, subject to defendant's ability to seek a credit for her support payments at trial. The judge found defendant earned "approximately $12, 500 per month as a critical care nurse," whereas plaintiff was "75 and not working as a result of a stroke he suffered in 2003," and living on $638 per month "via Canadian benefits." The judge also concluded that, contrary to defendant's argument that plaintiff was "being supported by his girlfriend, [E.S.], . . . there is no proof of same."

On September 13, 2019, the same motion judge considered E.S.'s motion to quash defendant's subpoena. Although E.S. consented to being deposed by defendant's counsel, she objected to the scope of the financial documents defendant subpoenaed. At oral argument, E.S. stated she believed she was "being targeted" by defendant for providing refuge to plaintiff even though she was not a "girlfriend, lover, or paramour to [plaintiff]." E.S. confirmed plaintiff was staying at her home "as of April 5, 2019 because he was thrown out of his house .... He had nowhere else to go." She characterized defendant's attempts to secure her financial records as a "fishing expedition," and stated she "share[d] no bank accounts or ownership of property with anyone else." E.S. also advised the court she wanted to retire the following year and was purchasing a house in Delaware which she would "share with no one." She added:

I repeat that. I will share this house with no one .... I have no intention of sharing my retirement home with [plaintiff] or anyone else. I am a hermit . . . and a loner. I would rather work for the rest of my life . . . than share a house with [plaintiff] or anyone else.

When describing plaintiff's mental health, E.S. stated h...