GREGORY FURDYNA VS. TAMMIE K. MACFARLAND (FM-08-0602-18, GLOUCESTER COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3658-18
GREGORY FURDYNA,
Plaintiff-Respondent,
v.
TAMMIE K. MACFARLAND,
Defendant-Appellant.
Submitted February 8, 2021 – Decided April 21, 2021
Before Judges Currier and Gooden Brown.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester County,
Docket No. FM-08-0602-18.
Lane & Lane, LLC, attorneys for appellant (Daniel J.
Lane, on the briefs).
Rebel Brown Law Group, LLC, attorneys for
respondent (Marianne Rebel Brown, on the brief).
PER CURIAM
In this matter arising out of the parties' divorce proceedings, defendant
appeals from the Dual Final Judgment of Divorce (FJOD). She contends the
Family Part judge erred in denying her request for an adjournment on the day of
trial when her newly-retained attorney was not available. Because we conclude
the judge did not mistakenly exercise her discretion under the presented
circumstances, we affirm.
After sixteen years of marriage, defendant filed a non-dissolution verified
complaint for support and maintenance. 1 Both parties were self-represented
during the initial argument. The following month, plaintiff filed a complaint for
divorce and a motion for reconsideration of the earlier order awarding defendant
spousal support and other funds. Defendant filed papers in response to the
motion for reconsideration but did not answer the complaint.
After plaintiff filed a request to enter default, defendant retained counsel
who filed a notice of appearance, and the parties consented to vacate the default.
Defendant filed an answer and counterclaim, and the parties submitted a case
management order.
Three months later, defendant's attorney moved to be relieved as counsel,
asserting defendant had not paid her and was not cooperating with her or
1
There were no children born of the marriage.
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providing the information necessary for the preparation of the case. The matter
had not yet gone before an early settlement panel and no trial date was
scheduled. Before the court ruled on the motion, a subsequent substitution of
attorney was filed with defendant representing herself.
Three months later, and two weeks before the trial date, defendant filed a
motion pro se asking for an increase in alimony payments and for a lump sum
of $45,000. Because the trial occurred prior to the return date of the motion, the
court denied all aspects of the motion other than continuing the pendente lite
alimony payment of $1000 a month.
The parties appeared for trial on Tuesday, January 29, 2019. Both were
self-represented. As the proceeding began, defendant told the court she had
obtained counsel "as of last Friday." Defendant gave the court the attorney's
name and stated he instructed her to request an adjournment. She did not know
the spelling of his name or his phone number. She acknowledged counsel had
not entered an appearance with the court. The judge advised she had not
received a notice of appearance or had any communication from the attorney.
Plaintiff objected to any adjournment of the case.
When the judge attempted to call counsel, the call went to voicemail. The
judge left the following message:
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[Counsel], this is Judge . . . calling from Gloucester
County, New Jersey on the Furdyna versus MacFarland
matter. The matter is scheduled for trial. We are
preparing to begin trial. [Defendant] has indicated that
she retained you, but we have no entry of appearance or
any record. Could you please call the courtroom[?]
...
The judge then began to question the parties about their assets and
employment and methodically went through the information contained in the
Case Information Statements (CIS). Defendant did not object.
After several hours of testimony, the court took a recess. Defendant stated
she was going to pick up additional documents she wanted to present to the
court. When the parties reconvened, the judge advised that defendant's attorney
had contacted her chambers and spoken to her staff. Counsel said he had not
been fully retained. Defendant had spoken to the lawyer as well, and she told
the judge the attorney was not going to come to court that afternoon but
"[counsel] hopes it runs into tomorrow so he can."
Without objection, the court continued to elicit information from the
parties for the remainder of the day. The parties were instructed to return the
following afternoon to conclude the trial.
On the second day of trial, both parties provided the court with additional
documentation. Defendant informed the court she had received an email from
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the attorney advising he was available for trial on February 4 and 7, 2019. The
judge replied that she had not received any communication from the attorney.
However, if the trial did not finish that day, the attorney could come on February
4. Thereafter, defendant told the court "That's okay. We can continue." She
also informed the court she was leaving that night for vacation.
At the end of the second day of trial, the judge requested the parties return
on February 7 so defendant's counsel could attend. No transcript has been
provided for that day or any further proceedings, nor do counsel or the court
refer to a third day of trial in their respective submissions and decision. We
presume the parties agreed they did not need any further testimony.
On March 13, 2019, the Family Part judge issued a comprehensive oral
decision and entered a FJOD. She stated she found "significant issues with
regard to the credibility of the parties in this matter with regard to their economic
history." She noted the parties agreed the only issues for the court's
determination were alimony and equitable distribution.
In considering an award of alimony, the court thoroughly analyzed the
statutory factors under N.J.S.A. 2A:34-23(b). She considered the tax returns
submitted by the parties and the information in their respective CISs. The judge
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ordered plaintiff to pay defendant limited duration alimony of $250 a week for
a term of six years and to become current on the arrears.
The court similarly assessed the factors under N.J.S.A. 2A:34-23.1 in
considering the issue of equitable distribution. The judge awarded defendant
the marital home and deemed her responsible for the mortgage. The court
ordered the parties equally responsible for any property tax liabilities. The
parties retained the vehicles that were already in their possession. In considering
the difference in the value of the vehicles, the court ordered plaintiff to pay
defendant $8500. Plaintiff was responsible for any tax liabilities relating to his
business. There were no further assets to distribute.
We defer to family court fact findings "'when supported by adequate,
substantial, credible evidence.'" Fattore v. Fattore, 458 N.J. Super. 75, 83 (App.
Div. 2019) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). Where
there is "satisfactory evidentiary support for the trial court's findings . . . [we]
should not disturb the result." Llewelyn v. Shewchuk, 440 N.J. Super. 207, 213
(App. Div. 2015) (citing Beck v. Beck, 86 N.J. 480, 496 (1981)). Deference is
especially appropriate here, in a bench trial, when the evidence is "largely
testimonial and involves questions of credibility." Cesare, 154 N.J. at 412(citation omitted). A trial judge who observes witnesses and listens to their
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testimony is in the best position to "make first-hand credibility judgments about
the witnesses who appear on the stand. . . ." N.J. Div. of Youth & Family Servs.
v. E.P., 196 N.J. 88, 104 (2008).
Therefore, this court "should not disturb the 'factual findings and legal
conclusions of the trial judge unless [it is] convinced that they are so manifestly
unsupported by or inconsistent with the competent, relevant and reasonably
credible evidence as to offend the interests of justice.'" Cesare, 154 N.J. at 412(quoting Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).
Our review of a trial court's "legal conclusions, and the application of
those conclusions to the facts," is de novo. Fattore, 458 N.J. Super. at 84.
On appeal, defendant argues the court abused its discretion in denying her
request for an adjournment of the divorce proceedings after she informed the
court she had recently retained counsel and that he needed time to prepare for
trial. In addition, defendant contends the court proceedings were "confusing"
and "unclear" for a pro se litigant, which caused her significant and substantial
prejudice.
We review a trial court's denial of a request for an adjournment under an
abuse of discretion standard. State ex rel. Comm'r of Transp. v. Shalom Money
St., LLC, 432 N.J. Super. 1, 7 (App. Div. 2013). Whether there was an abuse of
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discretion depends on the amount of prejudice suffered by the aggrieved party.
State v. Smith, 66 N.J. Super. 465, 468 (App. Div. 1961). Thus, the refusal to
grant an adjournment will not lead to reversal "unless an injustice has been
done." Nadel v. Bergamo, 160 N.J. Super. 213, 218 (App. Div. 1978); see State
v. Maisonet, ___ N.J. ___, ___ (2021) (slip op. at 20) (holding court did not
misapply its discretion in denying the defendant's request for an adjournment to
obtain new counsel on the first day of his murder trial because he suffered no
prejudice).
Under these circumstances, we are satisfied the Family Part judge did not
misapply her discretion. Both parties represented themselves in pre-trial motion
practice and proceedings. Defendant's prior counsel had moved to be relieved
because defendant was not paying her and was not cooperating with counsel's
requests to provide the information necessary to prepare the case. Defendant
substituted in herself as counsel more than three months before trial and
remained self-represented until the trial date. She filed a motion pro se for
certain relief less than two weeks before the trial date.
Neither party appeared with counsel on the long-scheduled trial date. It
was not until after the court proceedings began that defendant informed the court
she had retained an attorney two business days earlier. However, the attorney
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was not available to come to court, and was not prepared to begin the trial.
Defendant stated counsel had instructed her to request an adjournment.
Defendant did not have the correct spelling for the attorney's name or his phone
number. During the colloquy, defendant said she was ready to proceed with the
case.
Nevertheless, when the court staff was able to ascertain the attorney's
identity, the judge left a message on the attorney's voicemail. Counsel called
back several hours later, stating he was not fully retained and would not be
coming to court that day. At no time did counsel contact the court regarding his
representation, request an adjournment either orally or in writing or file a notice
of appearance. When it was evident the second day of trial that counsel did not
intend to appear, defendant stated: "That's okay. We can continue."
Clearly, new counsel was not prepared to try the case on the scheduled
trial date. Understandably, he was not contacted until two business days before
the trial date and, apparently, he was not paid his full retainer. In addition, the
judge gave defendant the opportunity to return for a third day of trial with
counsel on a date counsel was available. Defendant did not avail herself of this
offer. Under these facts and given the court's wide latitude to manage its
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calendar, we discern no mistaken exercise of discretion in denying the
adjournment.
Moreover, defendant has not demonstrated she was prejudiced by the
denial of her adjournment request. The judge painstakingly went through the
statutory factors and gathered information from the parties in making her
determinations regarding alimony and equitable distribution. Other than
expressing a dissatisfaction with the alimony terms, defendant has not
established she was unfairly prejudiced by the court's rulings in which she was
awarded alimony and possession of the marital home.
Affirmed.
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