In an unpublished decision from April 6, 2017, the Appellate Division reminded trial courts that if they are going to throw a litigant in jail for contempt, they need to follow the court rules. In Wilson v. Wilson, the self-represented defendant father was charged with contempt for speaking out during a pendente lite hearing. At issue was the court’s decision to transfer custody of the parties’ daughter from the father to the mother based on an expert report submitted by the mother. In the transcript exerpts provided in the opinion, the father appeared to be respectfully disagreeing with the court’s decision by arguing that he was not alienating his daughter and such a transfer of custody would not be in her best interest. When the father interrupted the Court’s opinion by stating he had never alienating their daughter, the judge stated if the father said “one more word” during the court’s decision, the bailiff had the authority to remand the father to the county jail for seven days. After the lower court made its decision and began addressing the issue of child support, the father again interrupted the court to revisit the custody issue at which time the judge had him remanded to the county jail.
Rule 1:10-1 governs summary contempt in presence of court and in addition to outlining how a judge may adjudicated contempt summarily without an order to show cause, states that the order of contempt shall recite the facts and contain a certification by the judge describing the contumacious behavior and further states that the sentence “shall be stayed for five days following imposition” and, if appealed, during the pendency of the appeal. The judge did not stay the seven-day sentence as required by the rule and did not recite his findings in the court order, which merely indicated that the father was remanded to the county jail “due to contempt of this Court.”
Given the lower court’s failure to abide by at least two of the Rule’s provisions, this was not a tough call for the Appellate Division. However, while the Appellate Division rested its opinion on a fairly straightforward analysis of Rule 1:10-1, the opinion offered other contextual clues that may have influenced the Court’s rulings. The opinion notes at the outset that the contempt finding “occurred at a pendent lite custody motion when the judge summarily transferred residential custody of the parties’ then-seven-year-old daughter based on a recent report from plaintiff’s evaluator and without a hearing.” Also of note, is the fact that the defendant father was self-represented and, while the opinion does indicate that the father interrupted the trial court at times, the transcript experts demonstrates that the father’s language was respectful while the trial judge’s was clearly derisive. These factors certainly portrayed a sympathetic litigant in a harsh legal environment.
After noting the New Jersey Supreme Court’s finding that the extraordinary contempt power should be exercised “sparingly”, the opinion stated that the lower court’s actions not only violated the Court rules but was “deprivation of liberty without due process” that was contrary to “our constitution and the federal constitution.” The Appellate Division concluded that “a judge’s frustration with a self-represented parent who decries the removal of his or her child should not result in this extraordinary outcome,” demonstrating that the sympathetic facts of the case likely influenced its decision.
