Every now and then, you read a case and just scratch your head. I have been doing this for 30 years and I get how emotional the divorce process can be. I get that some people just don’t want to get divorced, while at the same time, not wanting to make the changes necessary to stay married (and often, they don’t believe that they have any responsibility, whatsoever, for the breakdown of the marriage. Most people, like it or not, get a grip by the time that a matter gets to trial.

And while there may be pot shots taken during testimony, or improper sparring with opposing counsel, it is rarely the case where the conduct is uncontrolled bedlam resulting in both a finding of contempt and the dismissal of a party’s pleadings for refusing to allow a meaningful cross examination. But that is exactly what happened in the case of B.R. v. R.R., an unreported (non-precedential) opinion released on October 11, 2022.

In that case, the trial court held the plaintiff in contempt based on his “abhorrent and disruptive” behavior during the trial. The bad conduct started on the opening day of trial when he called the defendant a thief, and continued, seemingly unabated, throughout the entirety of the trial. The court noted that Plaintiff repeatedly gave unresponsive and inflammatory answers to the questions posed to him and made extraneous comments when no question was pending. Plaintiff complained about defense counsel’s objections, accusing her of trying to confuse him and of being a “hostile attorney.” Even though the judge and plaintiff’s counsel repeatedly told plaintiff to stop speaking when defense counsel objected, plaintiff continued to testify when defense counsel objected.

At the beginning of each day of trial and throughout the trial, the judge warned plaintiff to discontinue he aberrant behavior, but he did not. In fact, on at least one occasion, he was warned that his pleadings could be dismissed. The bad conduct, which started during questioning from his own attorney continued during cross examination, despite another warning from the judge in advance of cross which lead Plaintiff to accuse the judge of being prejudiced and request another judge.

Plaintiff continued to be unresponsive and argumentative during cross examination and continued to make inappropriate comments. He asserted defense counsel “can’t be trusted” and accused her of “mentioning many lies” about him, “trying to steal everything,” being “not too attentive,” lacking understanding, and “making a lot of money off this.” The judge repeatedly had to instruct plaintiff to answer counsel’s questions and sustained objections to his testimony as being unresponsive. Towards the end of the third trial day, after the judge had instructed plaintiff to “wait for the question” before speaking, plaintiff again declared the
judge was “prejudiced” and “discriminatory” and requested another attorney and another judge. This caused the judge to state that plaintiff could leave the courtroom whereupon she denied his “motion” for recusal. At this point, plaintiff’s attorney contended that plaintiff was “incompetent and cannot continue on” and had “issues psychologically and they are bubbling out to the surface.”

Defendant moved to dismiss plaintiff’s complaint and have him found in contempt and both motions were granted. In granting the motions, the trial judge found:

plaintiff had engaged in “name-calling, calling the defendant all kinds of horrific names in definitely an attempt to embarrass her, he’s cursed in court, he’s moaned loudly, he
expresses extreme frustration whenever things did not go his way, he breathes loudly.” The judge rejected plaintiff’s counsel’s suggestion that she give plaintiff another chance because “the [c]ourt engaged in a number of warnings and admonishments repeatedly to advise [plaintiff] to cease and desist and he failed to yield any such warnings. His contemptuous behavior continued. It was willful in the [c]ourt’s own estimation.” The judge found unpersuasive plaintiff’s incompetency argument, citing plaintiff’s prior insistence he could stand trial, his failure to provide a medical report about his “alleged psychological impairment,” and his ability to “maintain several businesses[,] . . . rental property[,] and a full-time job with the State of New Jersey.”

Finding plaintiff had presented “insufficient testimony” and had “refused to submit to cross[-]examination,” the trial judge dismissed the complaint pursuant to Rule 4:37-2. In the Order memorializing her decision. the judge confirmed her findings that plaintiff’s behavior was “willful” and “abusive, harassing, noncompliant, and intended to embarrass [d]efendant” and that plaintiff had “refused to avail himself to cross-examination.” At the conclusion of trial, the judge entered the Final Judgment of Divorce dissolving the marriage, awarding defendant sole legal custody of the children, equitably distributing the parties’ property, and requiring plaintiff to pay child support, alimony, and sixty percent of defendant’s legal fees and costs, supported by a 48 page written opinion.

Defendant appealed but the Appellate Division affirmed holding:

Plaintiff’s assertion on appeal that “[t]he transcript of his testimony . . . shows that there were a few comments here and there . . . but plaintiff’s testimony proceeded well without major interruption” is wholly belied by the record. In the presence of the judge throughout the course of the trial, plaintiff again and again refused to answer the actual questions posed to him, made inappropriate inflammatory comments, and failed to follow the judge’s repeated
instructions. His behavior began before he took the witness stand, continued during his direct examination, and accelerated during cross-examination, despite the numerous warnings issued by the judge. His behavior obstructed the proceedings, particularly defense counsel’s attempt to cross-examine him, and would have continued to do so had the judge not intervened. His conduct was willful, as observed by the judge and confirmed by his repeated refusal to heed her warnings and instructions.

Plaintiff’s conduct and commentary were clearly intended “to intimidate, influence, impede, embarrass, or obstruct . . . the administration of justice . . . .” McAllister v. McAllister, 95 N.J. Super. 426, 439 (App. Div. 1967). His multiple assertions of court bias, acknowledged by his counsel to be unfounded, and his failure to follow the judge’s directives “besp[oke] of scorn or disdain for [the] court [and] its authority.” In re Daniels, 118 N.J. 51, 69 (1990) (quoting
In re De Marco, 224 N.J. Super. 105, 116 (App. Div. 1988)). The judge correctly held plaintiff in contempt “to maintain order in the courtroom” and to prevent plaintiff from “interfer[ing] with or obstruct[ing] the orderly administration of justice.” Id. at 61.

The decision goes on to discuss the appropriateness of the contempt findings without a separate evidentiary hearing as well as the appropriateness of the dismissal of plaintiff’s pleadings.

In any event, it is evidence of the inability to control his emotions and moreover, acting in a way that was detrimental to his interests. In that respect, it is tragic, but what else could the judge have done?

Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Department of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.