NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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
- Responde nt,

v. TOBIA IPPOLITO,

Defendant
- Appella nt. 1

___________________________________________________ ____ Argued October 27 , 2015
– Decided
B efore 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, Jen sen & 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 initiat ed by the trial judge pursuant to Rule 1:10
- 2
– an d 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, 2015A - 4840
- 13T1 2 In this three
- year old matrimonial action, the family judge instituted this contempt proceeding, pursuant to Rule 1:10
- 2, against defendant Tobia Ippolit o 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 wha t the family judge perceived to be a pattern of
such conduct when the matter was handled by ano ther family judge
who had recused himself. In responding to this appeal, plaintiff has regaled us with many of these earl i er circumstanc es. T hese prio r events may constitute relevant evidence in the contempt proceedings that will follow today's remand, but they have no bearing on the primary question beforeA - 4840
- 13T1 3 us – whether the family judge who initiated the contempt proceeding should have pr esided over the trial of that matter . There was a time when a hard
- and
- fast rule prohibi ted 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 pa rt, 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 (find ing it "fatally defective" for the initiating judge to preside over a summary contempt proce eding ). T his approach was adopted chiefly because
of the potential for arbitrarin ess when a judge act s as "complainant, prosecutor, judge and executioner." In re Buehrer , 50 N.J. 501, 514 (19 67). 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 exam
ple, when the charge is a violation of a court order, the penal proceeding may not beA - 4840
- 13T1 4 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) requir es 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 communic ation with a custody expert , but also the suit's prior history , which had led to orders limiting or prohibi ting such communications. The order to show cause also appears t o have issued before defendant had an opportunity to explain or respond . This sudden leap from a complaining letter of matrimonial counsel to the c ommencement of summary contempt
proce edings might alone suggest the appearance of objectivity

2 The prior versi ons of the Rule prohibited a judge from presiding over the summary contempt proceeding without exception.A - 4840
- 13T1 5 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 proceedi ng 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 ope ned 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 ba il may be required if reasonably necessary.A - 4840
- 13T1 6 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 y ou, sir, with all due respect. I am not here to find you in contempt. I am here to fi nd 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.
Afte r defendant was sworn as direct ed by the judge, and after the attorney s 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 a nd he'll be cross
examined as we see fit. Although the transcript lacks the dynamics of a live presentation, the first few pages of the transcript are nevertheless palpab le ; the judge spoke directly at d efendant 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 objectivi t y." TheirA - 4840
- 13T1 7 absence, as readi ly 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 ac corded 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 cross
examination, pro of 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. S imilar circumstance s prompted Justice Fran kfurter 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 ma tters of procedure." Sacher v. United States , 343 U.S. 1, 23
- 25, 72 S. Ct. 451, 4 62
- 63, 96 L. Ed. 717, 7 31
- 32A - 4840
- 13T1 8 (1952) (dissenting opinion); see also Burdeau v. McDowell , 256
U.S. 465, 477, 41 S. Ct. 574, 576, 65 L. Ed. 1048, 1 051 (1921) (in which Justice B randeis 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 t he contempt proceeding , the judge sought defendant's waiver of his right against self
incrimi nation. And, by requiring that defendant testify f irst

– assert ing 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; i t was the prosecu tion's
burden to demonstrate defendant was in contempt beyond a

rea sonable doubt. 4 With one swift di rection 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 jud ge 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 ent ire tenor of the proceeding and the content of the judge's written opinion suggests to us

– in (continued)A - 4840
- 13T1 9 Defendant emphasizes anothe r 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, the n by the attorney so designated " (emphasis added). No attorney was designated . Instead, the judge seems to have largely prosecuted the matter himself; he direct ed that defendant testify first and , after defendant was briefly examined by his own attorney and then briefly by plaintif f's attorney , the judge extensively cross
- examine d . Despite the Rule 's unambiguous declaration as to who m may prosecute such a matter, the judge took on that role . C ontrary 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" be fore the proceeding began, the judge's comments at the outset and the proceedings themselves eliminate any doubt. 6 T he judge's written decision, which explained the basis

(continued) reviewing the matter de novo

– that t he judge failed to apply the reasonable
- doubt standard.

6 We w ould note that the form of the order to show cause is also pr oblematic. Although an alleged contemnor has no constitutional (continued)A - 4840
- 13T1 10 for his finding of contempt, was t he judge's own expression of
the re asons for the contempt proceedings. He stated that the history of prior di fficulties with experts led to his concern
when plaintiff's counsel wrote to him about defendant's communication with an expert ; the judge opin ed in his written decision that "yet a nother 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 proce edings. We lastly conside r plaintiff's argument that what occurred was not actually a summary contempt pro ceeding 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 assert ion that defendant violated both the February 20, 2014 order and "addition[al] numer ous other prior [c]ourt [orders]" wa s insufficient to put defendant on notice of what he wa s being asked to defend agains t. 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.A - 4840
- 13T1 11 clear from everything the judge said 8 and wrote 9 with regard to thi s proceeding

– except the capti on used on the order under review

– that the judge believed he was conducting a summary contempt proceeding. 10 The word "contempt" is rep eated throughout the hearing 11 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 t hat 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 con tempt citation" (emphasis added). There is no question tha t 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 o pinion 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 fail ure to obey a court's order is civil.'" In short, the judge clearly demonstrated his understanding of the difference; we therefore dec line to view the proceedings as a de facto Rule 1:10
- 3 hearing when the judge intended no such thing.

10 A lthough 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 Eve n 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," s ee Ridley v. Dennison , 298 N.J. Super. 373, 381 (continued)A - 4840
- 13T1 12 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 invoke d Rule
1:10
- 2, and the judge, in his opinion, cited only to Rule 1:10
- 2 as the authority upon whic h the proceeding was based; he also cited numerous cases that deal t with the summa ry 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 fro m the summary contempt procedure)

or c ited either during the hearing or in the judge's written opinion or final order. The May 7, 201 4 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 t o 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); B d . of Educ., Twp. of Middletown v. Middletown Twp. Educ. Ass'n , 352 N.J. Super. 501, 508
- 09 (Ch. Div. 2001).