NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4840-13T1

LISA IPPOLITO,

Plaintiff-Respondent,

v.

TOBIA IPPOLITO,

Defendant-Appellant.1

_______________________________________________________

Argued October 27, 2015 – Decided

Before Judges Fisher, Rothstadt and Currier.

On appeal from the Superior Court of New 

Jersey, Chancery Division, Family Part, 

Morris County, Docket No. FM-14-147-13.

Angelo Sarno argued the cause for appellant 

(Snyder & Sarno, LLC, attorneys; Tobia

Ippolito, on the pro se brief).

William M. Laufer argued the cause for 

respondent (Laufer, Dalena, Cadicina, Jensen 

& Boyd, LLC, attorneys; Mr. Laufer, of 

counsel; Kimberly Gronau Boyd and Carly 

DiFrancisco, on the brief).

The opinion of the court was delivered by

FISHER, P.J.A.D.

 

1 Although this appeal arises from a summary contempt proceeding 

initiated by the trial judge pursuant to Rule 1:10-2 – and thus, 

should bear a caption in the form designated in Rule 1:10-2(a) –

we utilize the caption in the related matrimonial action because 

the order that has been appealed was so captioned.

APPROVED FOR PUBLICATION

November 9, 2015

APPELLATE DIVISION

November 9, 2015
2 A-4840-13T1

In this three-year old matrimonial action, the family judge 

instituted this contempt proceeding, pursuant to Rule 1:10-2, 

against defendant Tobia Ippolito upon the judge's receipt of a 

letter from counsel for plaintiff Lisa Ippolito; the letter 

asserted that defendant had violated the terms of a February 20, 

2014 order, which prohibited defendant from "threatening or 

intimidating any expert in this matter." Because the judge 

erred by presiding over the very contempt proceeding he 

initiated, we vacate the order under review and remand the 

contempt proceeding to the trial court; the assignment judge is 

directed to forthwith designate a judge to preside over the 

contempt proceeding.

Having concluded that the matter must begin anew with 

another judge, we need not engage in an extensive discussion of 

the underlying circumstances. As noted, defendant had been 

ordered not to "threaten" or "intimidate" any expert based 

apparently on what the family judge perceived to be a pattern of 

such conduct when the matter was handled by another family judge 

who had recused himself. In responding to this appeal, 

plaintiff has regaled us with many of these earlier 

circumstances. These prior events may constitute relevant 

evidence in the contempt proceedings that will follow today's 

remand, but they have no bearing on the primary question before 
3 A-4840-13T1

us – whether the family judge who initiated the contempt 

proceeding should have presided over the trial of that matter.

There was a time when a hard-and-fast rule prohibited the 

initiating judge from presiding over a summary contempt 

proceeding. See In re Fair Lawn Educ. Ass'n, 63 N.J. 112, 115, 

cert. denied, 414 U.S. 855, 94 S. Ct. 155, 38 L. Ed. 2d 104

(1973); City of Bridgeton v. Jones, 228 N.J. Super. 325, 336-38 

(App. Div. 1988). As we observed in Warren County Community 

College v. Warren County Board of Chosen Freeholders, 350 N.J. 

Super. 489, 512 (App. Div. 2002), aff’d in part, modified in 

part, 176 N.J. 432 (2003), before the 1994 amendment to Rule

1:10-2, "[i]t was reversible error for the same judge to hear 

the [summary contempt] proceedings." See also City of 

Bridgeton, supra, 228 N.J. Super. at 337 (finding it "fatally 

defective" for the initiating judge to preside over a summary 

contempt proceeding). This approach was adopted chiefly because 

of the potential for arbitrariness when a judge acts as 

"complainant, prosecutor, judge and executioner." In re 

Buehrer, 50 N.J. 501, 514 (1967). As explained by Chief Justice 

Weintraub:

With respect to procedural antidotes, our 

practice in contempt matters is calculated 

to limit the risk of arbitrariness and the 

appearance of arbitrariness. So, for example, when the charge is a violation of a 

court order, the penal proceeding may not be 
4 A-4840-13T1

heard by the judge whose order was allegedly 

contemned unless the defendant consents to 

his sitting. Thereby obviated is the risk 

which inhered singularly in the contempt 

area when the offended judge sat in judgment 

of his own charge.

[Fair Lawn Educ. Ass'n, supra, 63 N.J. at 

115 (citations omitted).]

Since 1994, however, Rule 1:10-2(c) (emphasis added) requires 

only that "[t]he matter shall not be heard by the judge who 

instituted the prosecution if the appearance of objectivity 

requires trial by another judge."

2 We are, therefore, required 

to consider whether "the appearance of objectivity" prohibited 

what occurred here.

As the record reveals, the judge's April 16, 2014 order to 

show cause was prompted not only by the April 15, 2014 written 

complaint of plaintiff's counsel regarding defendant's 

communication with a custody expert, but also the suit's prior 

history, which had led to orders limiting or prohibiting such 

communications. The order to show cause also appears to have 

issued before defendant had an opportunity to explain or 

respond. This sudden leap from a complaining letter of 

matrimonial counsel to the commencement of summary contempt 

proceedings might alone suggest the appearance of objectivity 

 

2 The prior versions of the Rule prohibited a judge from 

presiding over the summary contempt proceeding without 

exception.
5 A-4840-13T1

had been lost. But, even if that were not so, we are satisfied 

from the events that followed that the judge erred in presiding 

over the summary contempt proceeding he initiated.

We examine this question by first acknowledging that "[t]he 

summary prosecution of a contempt committed outside the presence 

of the court is inherently a highly sensitive matter," and, for 

that reason, warrants "scrupulous attention to the procedural 

safeguards embodied by the rules." City of Bridgeton, supra, 

228 N.J. Super. at 335. Our review is de novo for these very 

reasons.3 Here, the judge opened the contempt proceeding –

before even inviting the appearances of counsel – with a 

statement describing the proceeding by stating that he had 

directed defendant to

show cause before this [c]ourt why his 

failure to comply with the [c]ourt's [o]rder 

of February 20, 201[4,] in addition to 

numerous prior court orders[,] which 

prohibited [d]efendant from directly 

contacting any experts in this matter[,]

would not be subject to me holding him in 

contempt.

 

3 Because of concerns about the arbitrariness of the power of 

summary contempt, appellate review is immediately available as 

of right, R. 2:2-3(a)(1), and execution of sentence is 

automatically stayed for five days following its imposition or, 

if an appeal is taken, during the pendency of the appeal, R.

1:10-2 (incorporating the stay provisions of the rule applicable 

to contempt in the presence of the court, R. 1:10-1), although 

bail may be required if reasonably necessary.
6 A-4840-13T1

Now, let's be clear. Counsel is here, 

and we'll have your appearances in a minute. 

But I note . . . [c]ounsel is here. I note 

that the parties are here. And when I 

direct this following comment at Mr. 

Ippolito –

I direct this at you, sir, with all due 

respect. I am not here to find you in 

contempt. I am here to find out if you are 

in contempt. Understand that? Big 

difference. Yes? No? All right. Well, 

we'll get to that in a minute. You want to 

talk to your lawyer, no problem. That was a 

pretty basic question.

So, let's have Mr. Ippolito sworn.

After defendant was sworn as directed by the judge, and after 

the attorneys gave their appearances, the judge then turned to 

defense counsel and said

So what I want you to do, Mr. Donahue, right 

now is your client is here in the [witness] 

box. He is here to tell me why he should 

not be held in contempt. All right? So 

please question him and he'll be crossexamined as we see fit.

Although the transcript lacks the dynamics of a live 

presentation, the first few pages of the transcript are 

nevertheless palpable; the judge spoke directly at defendant and 

made clear that defendant was there to explain his conduct. The 

procedural safeguards contained in Rule 1:10-2 are, as we have 

mentioned, intended to avoid the inherent arbitrariness of a 

summary contempt proceeding. The utilization of all those 

safeguards ensures the "appearance of objectivity." Their 
7 A-4840-13T1

absence, as readily revealed by the judge's opening comments, 

calls into question the objectivity of the proceedings.

For example, because the commencement of a proceeding 

pursuant to Rule 1:10-2 constitutes a charge of criminal conduct 

– "[t]he essence of the offense is defiance of public 

authority," In re Yengo, 84 N.J. 111, 120 (1980), cert. denied, 

449 U.S. 1124, 101 S. Ct. 941, 67 L. Ed. 2d 110 (1981) –

defendant was entitled to most of the safeguards accorded 

criminal defendants, with the exception of the right to 

indictment and the right, in some cases, to a jury trial. 

Defendant was entitled to "the presumption of innocence, the 

privilege against self-incrimination, the right of crossexamination, proof of guilt beyond a reasonable doubt, and the 

admissibility of evidence in accordance with the rules of 

evidence." Ibid.

The importance of these rights is further illuminated by 

their historical underpinnings. Similar circumstances prompted 

Justice Frankfurter to observe that "[b]itter experience has 

sharpened our realization that a major test of true democracy is 

the fair administration of justice," and that "[i]t is not for 

nothing that most of the provisions of our Bill of Rights are 

concerned with matters of procedure." Sacher v. United States, 

343 U.S. 1, 23-25, 72 S. Ct. 451, 462-63, 96 L. Ed. 717, 731-32 
8 A-4840-13T1

(1952) (dissenting opinion); see also Burdeau v. McDowell, 256 

U.S. 465, 477, 41 S. Ct. 574, 576, 65 L. Ed. 1048, 1051 (1921) 

(in which Justice Brandeis noted in his dissent that "in the 

development of our liberty insistence upon procedural regularity 

has been a large factor"). By directing defendant to take the 

oath and respond to the unsworn allegations conveyed by 

counsel's letter that led to the contempt proceeding, the judge 

sought defendant's waiver of his right against selfincrimination. And, by requiring that defendant testify first –

asserting that "[defendant] is here to tell me why he should not 

be held in contempt" – the judge mistakenly assumed defendant 

was saddled with the burden of proving his innocence. The judge 

was greatly mistaken in this regard; it was the prosecution's 

burden to demonstrate defendant was in contempt beyond a 

reasonable doubt.4 With one swift direction at the start of the 

proceeding, the judge deprived defendant of the presumption of 

innocence.5

 

4 Interestingly, the judge called no other witnesses to testify –

not even the expert who was allegedly threatened or intimidated 

by defendant's communication.

5 To be sure, the judge concluded in his written opinion that 

defendant "intentionally" violated "the intent and the spirit" 

of the February 20, 2014 order. That is not the same as finding 

that defendant intentionally acted beyond a reasonable doubt. 

To the contrary, the entire tenor of the proceeding and the 

content of the judge's written opinion suggests to us – in 

(continued)
9 A-4840-13T1

Defendant emphasizes another procedural safeguard bypassed 

here. Rule 1:10-2(c) declares the proceeding "may be prosecuted 

on behalf of the court only by the Attorney General, the County 

Prosecutor of the county, or where the court for good cause 

designates an attorney, then by the attorney so designated"

(emphasis added). No attorney was designated. Instead, the 

judge seems to have largely prosecuted the matter himself; he 

directed that defendant testify first and, after defendant was 

briefly examined by his own attorney and then briefly by 

plaintiff's attorney, the judge extensively cross-examined. 

Despite the Rule's unambiguous declaration as to whom may 

prosecute such a matter, the judge took on that role. Contrary 

to law, the judge who instituted the action became "complainant, 

prosecutor, judge and executioner." Buehrer, supra, 50 N.J. at 

514.

If there was any question about the "appearance of 

objectivity" before the proceeding began, the judge's comments 

at the outset and the proceedings themselves eliminate any 

doubt.6 The judge's written decision, which explained the basis 

 

(continued)

reviewing the matter de novo – that the judge failed to apply 

the reasonable-doubt standard.

6 We would note that the form of the order to show cause is also 

problematic. Although an alleged contemnor has no constitutional 

(continued)
10 A-4840-13T1

for his finding of contempt, was the judge's own expression of 

the reasons for the contempt proceedings. He stated that the 

history of prior difficulties with experts led to his concern 

when plaintiff's counsel wrote to him about defendant's 

communication with an expert; the judge opined in his written 

decision that "yet another expert had been made uncomfortable 

and was potentially poised to resign from his role in this 

case."7

For these reasons, we conclude the "appearance of 

objectivity" required that a different judge preside over the 

trial of the summary contempt proceedings.

We lastly consider plaintiff's argument that what occurred

was not actually a summary contempt proceeding but a proceeding 

of the type permitted by Rule 1:10-3. That argument is without 

sufficient merit to warrant further discussion in a written 

opinion. R. 2:11-3(e)(1)(E). We would add only that it is 

 

(continued)

right to indictment, Yengo, supra, 84 N.J. at 120, he does have 

a right to notice of the charges. The assertion that defendant 

violated both the February 20, 2014 order and "addition[al] 

numerous other prior [c]ourt [orders]" was insufficient to put 

defendant on notice of what he was being asked to defend 

against. At the very least the earlier orders that the judge 

believed had been violated should have been specified.

7 There was no proof to support that contention. The expert was 

never called to testify about his alleged discomfort.
11 A-4840-13T1

clear from everything the judge said8 and wrote9 with regard to 

this proceeding – except the caption used on the order under 

review – that the judge believed he was conducting a summary 

contempt proceeding.10 The word "contempt" is repeated 

throughout the hearing11 when describing the nature of the 

 

8 Toward the end of the April 23 hearing, the judge and defense 

counsel engaged in a colloquy about the nature of the 

proceeding. When defense counsel argued that he did not 

anticipate that testimony would be taken, asserting 

"[g]enerally, [t]estimony isn't taken on [o]rders to [s]how 

[c]ause," the judge responded: "Well, on a contempt hearing

testimony is taken, Frank . . . . [T]his was an order to hear a 

contempt citation" (emphasis added). There is no question that 

the judge realized this was a summary contempt proceeding and 

not a Rule 1:10-3 proceeding.

9 In fact, the judge revealed his awareness of these inherently 

different proceedings in his written opinion when he stated that 

"[a] contempt of court may be considered an offense against 

governmental authority, and may be punished criminally[,]" but, 

"[o]n the other hand, 'a proceeding to afford a litigant 

supplemental relief from an adverse party's failure to obey a 

court's order is civil.'" In short, the judge clearly 

demonstrated his understanding of the difference; we therefore 

decline to view the proceedings as a de facto Rule 1:10-3 

hearing when the judge intended no such thing.

10 Although a court may conduct a hearing pursuant to Rule 1:10-3 

simultaneously with a Rule 1:10-2 proceeding — as the last 

sentence of Rule 1:10-3 makes clear — this may only occur with 

the consent of the parties and, even then, the provisions of 

Rule 1:10-2(c) must still be honored.

11 Even though courts occasionally refer to the conduct that 

would support Rule 1:10-3 relief as "civil contempt," see

Anyanwu v. Anyanwu, 339 N.J. Super. 278, 290 (App. Div. 2001), 

certif. denied, 170 N.J. 388 (2001), that Rule is better 

understood and described without utterance of the word 

"contempt," see Ridley v. Dennison, 298 N.J. Super. 373, 381 

(continued)
12 A-4840-13T1

proceeding and uttered more than a dozen times in the judge's 

ten-page written opinion. The preamble of both the order to 

show cause and the order that concluded the matter invoked Rule

1:10-2, and the judge, in his opinion, cited only to Rule 1:10-2

as the authority upon which the proceeding was based; he also 

cited numerous cases that dealt with the summary contempt power, 

demonstrating a clear understanding of the difference between 

the proceedings permitted by Rule 1:10-2 and those authorized by

Rule 1:10-3. On the other hand, Rule 1:10-3 was never mentioned 

(except to distinguish it from the summary contempt procedure) 

or cited either during the hearing or in the judge's written 

opinion or final order.

The May 7, 2014 order under review is vacated. We remand 

to the assignment judge for the designation of another judge to 

preside over the summary contempt proceeding instigated by the 

order to show cause entered on April 16, 2014, and for further 

proceedings in conformity with this opinion. We do not retain 

jurisdiction.

 

(continued)

(App. Div. 1997); Bd. of Educ., Twp. of Middletown v. Middletown 

Twp. Educ. Ass'n, 352 N.J. Super. 501, 508-09 (Ch. Div. 2001).