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June 18, 2004
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,v.MICHAEL A. PERO, III, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, S-2617-00.
Before Judges Carchman, Wecker and Weissbard.
Submitted April 28, 2004
By leave granted, defendant, Michael A. Pero, III, appeals an interlocutory order denying his motion to dismiss this indictment for failure to bring the case to trial within the 180-period required by the Interstate Agreement on Detainers (IAD). We affirm.
New Jersey and Connecticut are party states, along with forty-six other states, the District of Columbia, Puerto Rico, the Virgin Islands, and the United States, to the IAD.*fn2 Carchman v. Nash, 473 U.S. 716, 719, 105 S.Ct. 3401, 3403, 87 L.Ed. 2d 516, 520 (1985). The IAD aims"to encourage the expeditious and orderly disposition of [outstanding] charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints" by providing cooperative procedures among the party states. N.J.S.A. 2A:159A-1. Under the IAD, where a defendant in one jurisdiction is incarcerated in another jurisdiction, either the prisoner himself (under Article III of the IAD, N.J.S.A. 2A:159A-3) or the prosecutor in the jurisdiction where the charge is pending (under Article IV, N.J.S.A. 2A:159A-4) can initiate proceedings to bring the prisoner to trial. In this case, we deal only with defendant's request under Article III.
N.J.S.A. 2A:159A-3 is New Jersey's enactment of Article III. It provides in pertinent part:
(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party State, and whenever during the continuance of the term of imprisonment there is pending in any other party State any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the State parole agency relating to the prisoner.
(b) The written notice and request for final disposition referred to in paragraph (a) hereof shall be given or sent by the prisoner to the warden, commissioner of corrections or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.
(c) The warden, commissioner of corrections or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the indictment, information or complaint on which the detainer is based.
[Emphasis added.]
Failure to abide by the time limit set forth in Article III requires dismissal of the indictment as set forth in Article V:
[I]n the event that an action on the indictment, information or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in Article III or Article IV hereof, the appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.
[N.J.S.A. 2A:159A-5(c).]
A prisoner's request for final disposition pursuant to Article III requires four documents in prescribed form to be submitted to the prosecutor and the court in the"Receiving State," as defined by N.J.S.A. 2A:159A-2, in this case New Jersey.*fn3 It is the responsibility of the"Sending State," here Connecticut, to send those forms by certified or registered mail, return receipt requested. N.J.S.A. 2A:159A-3(b). The prescribed IAD forms are:
Form 1 -"Notice of Untried Indictment, Information or Complaint and of Right to Request Disposition," to be signed and dated by the warden of the custodial institution where the inmate is held, and then signed and dated by the inmate to acknowledge receipt.
Form 2 -"Inmate's Notice of Place of Imprisonment and Request for Disposition of Indictments, Informations, or Complaints," to be addressed to the Prosecutor in the jurisdiction where a charge is pending, signed and dated by the inmate.
Form 3 -"Certificate of Inmate Status," to be signed and dated by the warden, and to include: (1) The term of commitment under which the prisoner is being held, (2) the time already served, (3) time remaining to be served on the sentence, (4) the amount of good time earned, (5) the date of parole eligibility of the prisoner, (6) the decision of the parole board relating to the prisoner, (7) the maximum expiration date under the present sentence, and (8) Detainers currently on file against this inmate from the same state are as follows.
Form 4 -"Offer to Deliver Temporary Custody," to be signed by the warden.
Instructions printed on Forms 3 and 4 provide that"[I]n the case of an inmate's request for disposition under Article III [N.J.S.A. 2A:159-3(a)], copies of [Forms 3 and 4] should be attached to all copies of Form 2." Handbook, supra, at 127, 128; See also Forms 3 and 4, as adopted both by the New Jersey Department of Corrections (DOC), N.J.A.C. 10A:10-1.4(6), and by the Connecticut DOC.
The question, in light of the Supreme Court's decision in Fex v. Michigan, 507 U.S. 43, 113 S.Ct. 1085, 122 L.Ed. 2d 406 (1993), is whether strict compliance with the procedures set forth for initiating the prisoner's Request for Disposition by the receiving state is required in order to trigger the IAD's 180-day time limit and the severe sanction of dismissal, or whether substantial compliance, specifically, delivery of unsigned Forms 3 and 4, if received with proper Forms 1 and 2, is sufficient. We conclude that unsigned Forms 3 and 4 do not warrant exemption from the rule of strict compliance.
Here is the relevant history as appears in the record. On December 28, 2000, a grand jury indicted defendant on charges of first-degree kidnapping, N.J.S.A. 2C:13-1b; first degree robbery, N.J.S.A. 2C:15-1; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree theft, N.J.S.A. 2C:20-3; fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5d; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. The charges were based on acts allegedly perpetrated on February 5, 2000; defendant's mother was the alleged victim.
Defendant was indicted on these charges in Bergen County on December 28, 2000 and was scheduled to appear for arraignment on January 22, 2001. When he failed to appear, a warrant issued for defendant's arrest. After his subsequent arrest in Connecticut on unrelated charges, the Bergen County Prosecutor forwarded a detainer to Connecticut prison officials.*fn4 Defendant was sentenced to prison in Connecticut on October 31, 2002.
On November 7, 2002, defendant's informal, handwritten"notice and a request for final disposition," citing Article III of the IAD, was received by the warden of Connecticut's MacDougall-Walker Correctional Institution, where defendant was then held. The warden responded informally on November 14, advising defendant of his right to file for a trial in New Jersey and informing him that"the paperwork will be generated by Records and you will sign the necessary forms with your assigned assessment counselor." On November 19, 2002 defendant signed IAD Forms 1 and 2, provided by the Connecticut DOC as required by N.J.S.A. 2A:159A-3(c), thereby initiating his request for disposition of the New Jersey indictment. Apparently, a"records specialist" in the MacDougall-Walker facility in Connecticut partially completed Forms 3 and 4, which required the warden's signature. But those forms were not signed. The record on appeal includes unsigned Forms 3 and 4, each bearing the typed date November 21, 2002. The records specialist also prepared cover letters addressed to the Bergen County Prosecutor and the"Clerk of the Court" in Bergen County, dated November 21, 2002, purporting to attach"Forms 2, 3, and 4." Assuming that the appropriate New Jersey authorities received some documents from Connecticut"on or about" November 25, 2002 as defendant claims, he admits that"the records specialist mailed out Form 3 and Form 4 without the warden signing them."
In March 2003, defendant was transferred to a different Connecticut prison, the Garner Correctional Institution. On March 20, 2003, defendant wrote to the Bergen County Prosecutor's office, inquiring as to New Jersey's intention, enclosing a copy of his November 19 request for disposition, and alleging a 180-day deadline from that date to bring him to trial. In response to his request some four months later that Connecticut prison authorities check the status of his request for trial in New Jersey, defendant was permitted to make a telephone call to the court clerk in Bergen County. According to defendant, the clerk told him"all the paperwork is here. We are just waiting for somebody to pick you up. Everything is all set." The court clerk also faxed to defendant copies of the documents received in November from Connecticut. Defendant made copies of those documents, and on March 20, 2003 he sent a packet of material to both the Bergen County Prosecutor and the court clerk. He asked to be informed"of the intention of the State of New Jersey regarding these outstanding matters." Finally, completed and signed Forms 3 and 4 were sent by Garner prison personnel in April and received by the Bergen County Prosecutor on April 10, 2003.
The State now appears to admit it received Forms 1 and 2, signed by defendant, in November 2002.*fn5 The record includes unsigned copies of cover letters from the Connecticut DOC to the Bergen County Prosecutor and to the"Clerk of Court, Bergen County," dated November 21, 2002, referring to"[a]ttached"
"I.A.D. Forms 2, 3, 4." The record also includes unsigned copies of Forms 3 and 4, dated November 21, 2002, certifying defendant's commitment to MacDougall-Walker and his incarceration for the preceding 853 days. However, the only signed Forms 3 and 4 are dated April 3 and 2, respectively, and certify defendant's then current commitment at Garner and his incarceration in Connecticut for the preceding 1041 days. The State plainly did not receive Forms 3 and 4, signed by the warden, until after April 3.*fn6
For purposes of this motion, and our review, we will assume that the State received unsigned copies of Forms 3 and 4 in November. Thus the only issue before us is whether the 180-day period prescribed by the IAD was triggered by the Prosecutor's receipt of signed Forms 1 and 2 and unsigned Forms 3 and 4 in November, or whether the State's time to bring defendant to trial ran only from its April 10 receipt of all four completed forms, including those signed by the Connecticut authority on April 2 and 3.
The history thereafter is not in issue. The Law Division judge remanded defendant without bail on June 9, 2003. On July 10, the judge ordered a psychiatric exam to determine defendant's competence to stand trial, to represent himself, to waive an insanity defense, and whether he was a danger to himself or others. An August 11 trial date was set in that order. The record indicates that on August 11, the court accepted a psychiatric report determining defendant's competence to stand trial and to represent himself, and that he was not a danger to himself or others.
Defendant's motion to dismiss pursuant to the IAD also was argued on August 11, at which time the judge set September 9 for a status review and September 29 as the trial date. The judge's written letter decision denying defendant's motion was dated September 16, 2003.*fn7 The motion judge found that April 10, 2003 was the date that triggered the 180-day window within which the State had to bring defendant to trial under Article III.
The thrust of defendant's argument in the Law Division in support of his motion to dismiss the indictment was that the IAD required New Jersey to bring him to trial within 180 days of receiving his request for"final disposition"; that he submitted the required written form request to invoke the IAD to Connecticut prison authorities on November 19, 2001; that certain of the required forms were mailed to the Bergen County Prosecutor's office on November 21, 2002 and received in that office on November 25, 2002; that he was not brought to court in New Jersey until June 9, 2003; and that because he was not brought to trial within 180 days of his request,*fn8 the indictment must be dismissed.
The Bergen County Prosecutor opposed defendant's motion on the ground that he did not receive the four required forms that constitute a completed IAD request until April 10, 2003, and that his office acted within 180 days thereafter to bring defendant to trial. The State argued:
We can't initiate an [IAD] procedure unless we have the form, which is the"Certificate of Inmate Status," articulating that, what he's charged with, and what he has to serve, and how much is left. Most importantly we need the form which is called the"Offer to Deliver Temporary Custody" signed by the warden.
The State contends that"there may very well have been an error that occurred up in the correctional institution in Connecticut [in November]. But that's not chargeable to us." If fully signed forms were not required, according to the State,
[i]t would be too easy for the defendants to circumvent the system, and have cases dismissed.... [The 180 days] doesn't start until we get all complete paperwork, that is the documents signed by the wardens. Because there's check and balances within the criminal institution, and there's ways to force them to do things by signing a writ of mandamus to mandate that they, in fact, process that paperwork.
Defendant argued that even though his own investigator concluded"that Connecticut dropped the ball,... Bergen County dropped the ball too." According to defendant, the Prosecutor, on receiving defendant's signed Forms 1 and 2 with only unsigned Forms 3 and 4, was required to take steps to contact the Connecticut prison and obtain signatures, and not simply treat the request as"incomplete." Otherwise, according to defendant, a bad warden could intentionally subvert an inmate's trial request by failing to sign the forms. The judge accepted the State's position.
On appeal, defendant presents these arguments:
WARDEN NOT SIGNING I.A.D. FORMS 3 AND 4 DOES NOT VIOLATE LETTER OF THE I.A.D. AND DOES NOT VIOLATE RIGHTS OF PRISONER UNDER N.J.S.A. 2A:159 A-4(d).
TRANSFERRING OF CUSTODY BEGINS ONCE A REQUEST BY THE PRISONER OR BY THE JURISDICTION SEEKING CUSTODY IS LODGED; AND NOTHING BUT THE PRISONERS [sic] INABILITY TO STAND TRIAL CAN TOLL THE 180 DAY PERIOD OF THE I.A.D.
NEW JERSEY DID NOT CONTINUE THEIR [sic] EFFORT TO OBTAIN DELIVERY OF PRISONER WITH DILIGENCE OR DISPATCH ONCE A"REQUEST" HAS BEEN LODGED.
I.A.D. PAPERWORK IS STILL INVALID AS FORMS 1 AND 2 ARE FROM NOVEMBER OF 02' [sic] AND FORMS 3 AND 4 ARE FROM APRIL 03' [sic]
We have carefully considered the record and the briefs in light of applicable law. We are convinced that the 180-day period prescribed by Article III of the IAD began to run only when New Jersey authorities received completed and signed Forms 3 and 4 on April 10, 2003.*fn9 We therefore affirm the order denying defendant's motion to dismiss the indictment.
Our research has not revealed any case in any state or federal jurisdiction addressing the specific question before us: whether receipt of a prisoner's Request for Disposition (Form 2), accompanied by unsigned copies of Form 3 and/or Form 4, constitutes an effective request for disposition that triggers the 180-day period. We therefore look to the underlying purpose of the IAD and judicial interpretations of its requirements to inform our decision.
As a"congressionally sanctioned interstate compact," the interpretation of the IAD"presents a question of federal law." Cuyler v. Adams, 449 U.S. 433, 442, 101 S.Ct. 703, 709, 66 L.Ed. 2d 641 (1981)."[T]he IAD comes within the Compact Clause of the U.S. Constitution, art. I, § 10, cl. 3 ('No State shall, without the Consent of Congress,... enter into any Agreement or Compact with another State....'), and is thus a federal law subject to federal interpretation." U.S. v. Paredes-Batista, 140 F.3d 367, 372 n.9 (2d Cir.), cert. denied, 525 U.S. 859, 119 S.Ct. 143, 143 L.Ed. 2d (1998). Federal court interpretations of the IAD, which was enacted in virtually identical form by Congress, 18 U.S.C.A. App. 2, as well as by New Jersey and Connecticut, is binding upon state courts. E.g., Peterson v. State, 73 P.3d 108, 112 (Idaho Ct. App. 2003); Commonwealth v. Wilson, 504 N.E.2d 1060 n.10 (Mass. 1987); State v. Winnie, 816 A.2d 545, 547 (Vt. 2002) (citing New York v. Hill, 528 U.S. 110, 120 S.Ct. 659, 145 L.Ed. 2d 560 (2000), and following Fex).
In Fex v. Michigan, supra, 507 U.S. at 43, 113 S.Ct. at 1085, 122 L.Ed. 2d at 406, a majority in the Supreme Court resolved the question whether the Article III 180-day period began to run on the date the prisoner's request for trial was mailed by the sending state, or on the date it was received by the prosecutor in the receiving state. The Court parsed the meaning of the phrase"within one hundred and eighty days after he shall have caused to be delivered," as it appears in Article III (and in N.J.S.A. 2A:159A-3(a)), and held that"delivery is the key concept." Id. at 49, 113 S.Ct. at 1089, 122 L.Ed. 2d at 414 (emphasis added). The Court rejected the argument that the phrase"caused to be delivered" referred to the date the prisoner initiated the process by submitting his request to the prison authorities in the sending state.
The Supreme Court addressed the practical effect of the two interpretations and considered the"worst case scenario" under each. Whereas the Court recognized that the actions of a malicious or careless warden under a delivery-date rule would produce a bad result in that a prisoner might"spend several hundred additional days under detainer" with a concomitant delay in reaching trial, the Court nevertheless concluded that a mailing-date rule would produce a worse result:"the prosecution will be precluded before the prosecutor even knows it has been requested." 507 U.S. at 50, 113 S.Ct. at 1090, 122 L.Ed. 2d at 414. While the Court's decision in Fex v. Michigan does not resolve the precise question raised in this case, that is, whether receipt of unsigned Forms 3 and 4 trigger the 180-day limit, its rationale supports our decision.
Well before the Supreme Court decided Fex, we held that the 180-day time limit was triggered only by receipt of the requisite request forms by the New Jersey prosecutor and the New Jersey court, and not by the prisoner's delivery of a request to out-of-state prison authorities. State v. Ternaku, 156 N.J. Super. 30, 34 (App. Div.), certif. denied, 77 N.J. 479 (1978). Our rationale in Ternaku was much like that later expressed by the Supreme Court in Fex.
In our view it would be contrary to the public interest to start the running of the 180-day period prior to actual receipt of the notice and request by the prosecutor and the court. If we were to interpret the statute as defendant requests, an indictment would be subject to dismissal each time delivery of the documents to the prosecutor and court is delayed, regardless of cause. We cannot conceive our Legislature as intending such a result by enacting the Interstate Agreement on Detainers. [Ibid.]
See also State v. Stiles, 233 N.J. Super. 299 (App. Div. 1989) (requiring"strict" compliance with the IAD's prescribed procedures and holding that receipt of unsigned Form 2, without a"certificate of inmate status" [Form 3], does not trigger the 180-day deadline).
In a case that pre-dated Fex, a district court judge denied a writ of habeas corpus alleging a violation of the IAD by New Jersey authorities. Johnson v. Cuyler, 535 F. Supp. 466 (E.D. Pa. 1982) (denied for failure to exhaust state remedies), aff'd, 714 F.2d 123 (3d Cir. 1983). Defining the State's obligation under the IAD, the court said:"The state must bring an inmate to trial within 180 days after its receipt of a proper request for disposition under Article III." Id. at 474. The question before us, of course, is what constitutes"a proper request."
In another decision pre-dating Fex, the Third Circuit affirmed the denial of a habeas corpus petition that was based on an alleged violation of the IAD. Casper v. Ryan, supra, 822 F.2d at 1283. In its opinion, the court reviewed the procedure for a prisoner to initiate trial in another state and emphasized the importance of Forms 3 and 4:
Article III(a) of the IAD requires that the request of the prisoner for final disposition"shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decision of the State parole agency relating to the prisoner,"which is the same language used in Article IV(b) to describe the information needed. Forms 3 and 4, which are used when proceedings have been initiated by the prosecutor from another jurisdiction under Article IV, must also be attached to Form 2, used when an inmate requests disposition under Article III. [Id. at 1285 (emphasis added).]
In Casper, a Florida prisoner sent a notarized letter to the Philadelphia District Attorney's office, but his letter did not include Form 3,"which the statute provides must accompany the prisoner's request for disposition of outstanding charges." Id. at 1285-86. The court found"persuasive reasons for requiring a prisoner to comply with the procedures required by Article III(a) as a predicate for invoking Article V(c)'s severe sanction of dismissal with prejudice." Id. at 1292. Nonetheless, in dictum, the court suggested that"[s]trict compliance with Article III may not be required when the prisoner has done everything possible, and it is the custodial state that is responsible for the default." Id. at 1293. We question the viability of that suggestion after Fex.
In United States v. Dent, 149 F.3d 180 (3d Cir. 1998), the Third Circuit addressed the dictum in Casper with respect to a prisoner's obligation to comply strictly with Article III. The Court held that the prisoner's letter request for disposition did not trigger the 180-day limit because he omitted information concerning"his term of commitment, the time already served, the time remaining to be served on his sentence, or any information concerning good-time credits or parole eligibility" (the very information normally provided on Form 3). This was so even though the prosecutor already had most of the information, and even though the prison warden had failed to meet his obligations under Article III. Id. at 186-87. The court nonetheless recognized, as it had in Casper, a potential exception to the rule of strict compliance if the prisoner can show that"she/he substantially complied to the extent possible." Id. at 187 (quoting Casper v. Ryan, supra, 822 F.3d at 1293). We do not find circumstances here that warrant such a theoretical exception.
We reject defendant's reliance on the district court opinion in Nash v. Carchman, 558 F. Supp. 641 (D.N.J. 1983) (writ of habeas corpus issued), aff'd, Nash v. Jeffes, 739 F.2d 878 (3d Cir. 1984), rev'd on other grounds, Carchman v. Nash, 473 U.S. 716, 105 S.Ct. 3401, 87 L.Ed. 2d 516 (1985). In Nash v. Carchman, the district court judge recognized that"[o]rdinarily, a prisoner must comply with all the formal prerequisites of Article III to trigger the Agreement's 180-day period," but found that the prisoner had received incorrect advice from several New Jersey authorities respecting his rights and obligations under the IAD. The judge concluded that"technical compliance is unnecessary if, through no fault of his own, a petitioner fails to meet all the Article III requirements." Id. at 650. The district court opinion in Nash does not square with Fex.
Several circuit courts have rejected defense motions to dismiss an indictment for IAD violations, even where either prison officials or procedures have impeded a prisoner's ability to request disposition. In United States v. Paredes-Batista, supra, 140 F.3d at 375-76, the Second Circuit held that despite the inadequacy of the federal government's form speedy trial request, which did not inform the defendant of the IAD's delivery requirement, and even though the defendant,"incarcerated in state prison, would not have been in a position to personally ensure delivery to either [the prosecutor or the court], informing him of these prerequisites would at least have permitted him to monitor and police his speedy trial rights." Id. at 373. In several cases involving prison officials' failure to provide a defendant with the Article III notice of his right to seek disposition in another jurisdiction, courts have declined to extend the dismissal sanction, reading the IAD narrowly and limiting that remedy to prosecutorial failure to act after receiving a prisoner's request. See, e.g., United States v. Lualemaga, 280 F.3d 1260, 1263-64 (9th Cir.), cert. denied, 536 U.S. 949, 122 S.Ct. 2641, 153 L.Ed. 2d 820 (2002); United States v. Walker, 255 F.3d 540, 542-43 (8th Cir. 2001); United States v. Pena-Corea, 165 F.3d 819, 821-22 (11th Cir. 1999), mod. on other grounds, 149 F.3d 1226 (5th Cir. 1998); Lara v. Johnson, 141 F.3d 239, 243 (5th Cir. 1998) ("[D]ismissal because of negligence on the part of the sending state is not a part of the IAD").
In Pena-Corea, supra, the court said:"The question here is whether the Government should be held responsible for the state custodian's failure to serve Pena with the federal detainer and to advise him of his right to demand a trial. We think not." 165 F.3d at 821. Compare United States v. Johnson, 196 F.3d 1000 (9th Cir. 1999), where the Ninth Circuit held that delivery of the prisoner's request for disposition to the Marshal's Service constituted delivery to the U.S. Attorney, and his public defender's letter to the court seeking appointment to represent defendant was sufficient notice to the court under the IAD.
In State v. Millett, 272 N.J. Super. 68, 107 (App. Div. 1994), one of the few New Jersey cases interpreting the IAD after Fex, we affirmed a trial court order denying the defendant's motion to dismiss a murder indictment for failure to bring the defendant to trial within the required time period.*fn10 We found that time was tolled pursuant to N.J.S.A. 2A:159A-6(a).*fn11 We relied on State v. Lippolis, 55 N.J. 354 (1970), rev'g on dissent 107 N.J. Super. 137 (App. Div. 1969), for the proposition that"the focus of the inquiry... is the conduct and intent of the prosecutor: did the prosecutor cause the delay due to an error or misunderstanding, or by his inaction, or did he otherwise evidence an intention not to diligently pursue the case?" Millett, supra, 272 N.J. Super. at 105.
On the one hand, we said:"The consequences of official misunderstandings, or administrative errors and negligence, should not be visited on the prisoner who is blameless." Millett, supra, 272 N.J. Super. at 105 (citing State v. Mason, 90 N.J. Super. 464, 470 (App. Div. 1966)). On the other hand, after noting various reasons for the delay in that case, we found"no indication that the prosecutor was dilatory." Id. at 107. We also noted that the defendant was not"prejudiced by the delay, either through unavailable witnesses or through lost evidence." Ibid. Our emphasis should be, as in Millett, on the conduct of the prosecutor rather than the conduct of prison officials when dismissal of an indictment under the IAD is at stake.
In State v. Moreau, 287 N.J. Super. 179, 183 (Law Div. 1995) (dismissing an indictment before the IAD's 180-day period has run where prosecutor has expressed the clear intention not to bring the defendant to trial within that period), the court recognized that"[g]enerally, courts have required strict compliance with the notice provisions of Article III." To the extent, however, that dictum in Moreau suggests that"administrative error or mistake" solely on the part of the sending state (here, Connecticut) might permit invocation of the doctrine of substantial compliance, we disagree.
It is of course true that the IAD provides that it"shall be liberally construed so as to effectuate its purposes." N.J.S.A. 2A:159A-9. The stated purposes of the IAD are"to encourage the expeditious and orderly disposition" of charges against"persons already incarcerated in other jurisdictions" and"to provide... cooperative procedures" among its party states to that end. N.J.S.A. 2A:159A-1. We do not, however, interpret the prescribed liberal construction of the compact to mean that courts must favor the prisoner by applying the doctrine of substantial compliance. See State v. Moe, 581 N.W. 2d 468, 472 (N.D. 1998) ("Strict compliance with the notice provisions of the IAD is required.... [A]ctual notice of the prisoner's request alone does not put the State on notice of the information that would be included in the certificate of the official having custody of the prisoner." Id. at 471.)
We recognize that a prisoner has limited power to insure his warden's efficient and complete cooperation with the requirements of the IAD. Nonetheless, it does not seem unduly harsh to place both practical and legal burdens on the prisoner who seeks to force another jurisdiction to bring him to trial within 180 days, on threat of dismissal for failure to meet that deadline.
The practical burden on the prisoner is to follow up his attempted delivery of a complete disposition request, that is, Forms 2, 3, and 4, by periodically checking with the warden and the out-of-state prosecutor. See, e.g., State v. Winnie, supra, 816 A.2d at 547. The legal burden upon a defendant is to prove actual receipt by the prosecutor and the court in the State where the inmate seeks a prompt disposition. Most jurisdictions that have considered the placement of either of those burdens since Fex have held that it is the defendant's burden to follow up on delivery and to prove receipt of the required forms. E.g., Morganfield v. State, 919 S.W.2d 731, 734 (Tex. App. 1996); Yiaadey v. Commonwealth, 513 S.E.2d 446, 451 (Va. Ct. App. 1999); Peterson v. State, supra, 73 P. 3d at 112.
There is no reason to think that by joining the compact, the New Jersey Legislature or any other party state's legislature intended to allow its own prosecution of a defendant to be at risk, solely based upon the efficiency or inefficiency of prison officials in other states. See Yiaadey v. Commonwealth, supra, 513 S.E.2d at 451 n.8. The intent and
rationale for enacting the IAD was to counter the perceived evil when prosecutorial delay or inattention fail to provide a defendant incarcerated in another jurisdiction an opportunity for prompt disposition of charges. Such delay potentially prejudices a prisoner's opportunities and even his potential for concurrent sentences.
It does not serve either the legislative intent behind the IAD, or the public interest, for courts to dismiss an indictment where the prosecuting authority is not in violation of the compact. The deterrent effect of the IAD is not impaired by this recognition. The prosecutor remains at risk of dismissal for an unwarranted delay after receiving a valid, complete application for disposition.
We decline to impose upon the prosecution in the receiving state a greater duty than that expressly required by the IAD itself. See State v. Treece, 497 S.E.2d 124, 125 (N.C. Ct. App.) (following Fex and holding that"this language [of Fex] cannot be interpreted as requiring the district attorney to inquire as to whether a defendant has mailed written notice of his request for final disposition of his case"), appeal dismissed, review denied, 501 S.E.2d 924 (N.C. 1998). We therefore reject defendant's contention that the Bergen County Prosecutor had an affirmative duty to investigate and seek more complete information, assuming unsigned IAD forms were received in November.
Neither the State nor the prisoner appears to have been responsible for the delay here; a lack of attention on the part of the Connecticut prison authorities at the MacDougall-Walker facility prevented prompt completion of the required forms and their delivery to the Bergen County Prosecutor and the court in November 2001. Unquestionably, it would have been appropriate and indeed salutary for the prosecutor's office to inquire of the Connecticut prison authorities if incomplete or unsigned Forms 3 and 4 were received along with the prisoner's request for disposition. We merely stop short of holding that the prosecutor's failure to make inquiry in this case results in the running of time under Article III.*fn12
We are convinced that an effective Form 2 request for disposition must include completed and signed Forms 3 and 4, and that the IAD demands strict compliance with its procedures. For example, it has been held that where proper forms were delivered to the prosecutor but not to the court in the receiving state, the Article III time limit was not triggered. State v. Winnie, supra, 816 A.2d at 547 (Fex requires strict compliance); State v. Somerlot, 544 S.E.2d 52, 59 (W. Va. 2000) (noting that jurisdictions that recognized substantial compliance prior to Fex now require strict compliance). Likewise, where the court but not the prosecutor received the required forms, the time limit also was not triggered. See Peterson v. State, supra, 73 P.3d at 111 (on post-conviction relief).
Incomplete prisoner requests for disposition under the IAD have been held insufficient to trigger the 180-day time limit of Article III in many jurisdictions, some even before Fex. E.g., Gearheart v. Wallace, 964 F. Supp. 205, 209 (E.D. Va. 1997), aff'd, 145 F.3d 1324 (4th Cir. 1998); State v. Burks, 631 N.W.2d 411, 413-14 (Minn. Ct. App. 2001); State v. Moe, supra, 581 N.W.2d at 471; Eckard v. Commonwealth, 460 S.E.2d 242, 246 (Va. Ct. App. 1995); State v. Nearhood, 518 N.W.2d 165, 170 (Neb. Ct. App. 1994).*fn13
Defendant argues before us that"the failure of the warden to sign the last two documents [in November] is irrelevant because I can't be denied my rights once I get my notice." We disagree. We are satisfied that an individual who is incarcerated in another state that is a party to the IAD is adequately protected by the opportunity to check on the status of his own request, as defendant did here, and thereby to discover any failure to act in a timely fashion. The triggering date for New Jersey's 180-day time limit in this case, as the Law Division judge found, was April 10, 2003, the earliest date the evidence established that defendant's completed application, including all required, signed forms, was received by Bergen County authorities.*fn14
Affirmed and remanded for trial.
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March 3, 2010
JAMES REED, PLAINTIFF,v.WARDEN DOMINICK DEROSE, ET AL., DEFENDANTS.
Plaintiff James Reed filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 while he was confined at the Dauphin County Prison in Harrisburg, Pennsylvania. He subsequently was released. Named as Defendants are the following employees of the Dauphin County Prison: Warden Dominick DeRose, Captain Mark Jeszenka, Captain Madden, and Captain Patrick Corkle*fn1 . Plaintiff seeks to hold Defendants liable for his extended confinement at the Dauphin County Prison after his immediate release was directed by the Dauphin County Court of Common Pleas on February 13, 2009.
Service of the Complaint was directed by Order dated June 10, 2009. (Doc. 8.) Presently before the Court is a Motion to Dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) that was filed on behalf of Defendants on August 24, 2009. (Doc. 12.) After being directed to file his opposition by Order dated October 8, 2009 (Doc. 14), Reed filed his opposition brief on October 15, 2009 (Doc. 15). Therefore, the Motion is ripe for disposition. For the reasons set forth below, the Motion will be granted.
In considering a motion to dismiss pursuant to Rule 12(b)(6), courts "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)).
A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a). Rule 8(a)(2) requires that a complaint contain a short and plain statement of the claim showing that the pleader is entitled to relief, "in order to give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555. A plaintiff must make "a 'showing' rather than a blanket assertion of an entitlement to relief", and "without some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only 'fair notice,' but also the 'grounds' on which the claim rests." Phillips, 515 F.3d at 232 (citing Twombly, 550 U.S. at 555 n. 3). "[A] complaint must allege facts suggestive of [the proscribed] conduct, and the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 563 n.8. Therefore, "stating a claim requires a complaint with enough factual matter (taken as true) to suggest the required element." Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 555 n. 3).
On the other hand, "a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits." Id. at 231(citing Twombly, 550 U.S. at 555-56, 563 n.8). Rule 8 "'does not impose a probability requirement at the pleading stage', but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.'" Id. at 234 (quoting Twombly, 550 U.S. at 556).
Reed alleges that, on February 13, 2009, he was sentenced in the Dauphin County Court of Common Pleas to time served from September 17, 2008 through February 13, 2009. (Id. at 2 ¶ 1.) A fine of $225.00 was imposed, and Reed's immediate release was directed. (Id.) Upon his return to the Dauphin County Prison at 10:30 a.m., Reed was told that the court had not faxed paperwork for his release. (Id. ¶ 2.) At 6:30 p.m., Reed was told that Cumberland County had a detainer against him. (Id.) However, Reed claims that the detainer in Cumberland County was dismissed on December 16, 2008 after he appeared in Cumberland County Court and was sentenced on a bad check charge to one year probation and directed to pay a fine of $239.00. (Id. ¶ 3.)
On February 13, Defendant Jeszenka checked the computer and verified that the Cumberland County detainer no longer existed. (Id. ¶ 4.) Reed was told that a release order would be submitted to records by 9:00 a.m. the next morning and that he would be released. (Id.)
The next morning, February 14, 2009, at 9:00 a.m., Reed was told that nobody was working in the Records Department that day because it was a Saturday and that he should "try 2nd shift." (Id. ¶ 5.) Reed alleges that, on that same date at 2:30 p.m., he contacted Defendant Madden "and was told he would file release order and get back to me he never responded back." (Id.)
On Sunday, February 15, 2009 at 10:00 a.m., Reed alleges that he contacted Defendant Corkle "and was told I would have to wait until someone came to work in Records to enter the information in computer for my release maybe 2/17/09." (Id. ¶ 6.)
As relief, Reed requests immediate release from the Dauphin County Prison. (Id. at 3 § V. ¶ 1.) He also requests the following monetary relief: reimbursement for his unlawful incarceration, loss of freedom, and loss of wages in the amount of $2,500 per day; relief for his loss of marital rights in the amount of $1,000 per day; relief for the pain and anguish his wife and family suffered waiting in the parking lot for eight (8) hours for his release at the rate of $40.00 per hour; the $350.00 filing fee for this action; and reimbursement for phone calls to friends and attorneys in the amount of $30.00. (Id. ¶ 2.) He claims that, if he were released on February 17, 2009, he would be entitled to $14,700.00. (Id. ¶ 3.)
A. Defendant DeRose
To state a § 1983 claim, a plaintiff must plead two essential elements:
(1) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct deprived the plaintiff of a right, privilege or immunity secured by the Constitution or laws of the United States. Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000). Furthermore, "[a] defendant in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). However, the personal involvement requirement may be satisfied by a showing of "personal direction or of actual knowledge and acquiescence." Id.; Pansy v. Preate, 870 F. Supp. 612, 630 (M.D. Pa. 1994), aff'd mem., 61 F.3d 896 (3d Cir. 1995).
Reed's Complaint does not contain any allegations against Defendant DeRose. As such, it appears that Reed seeks to hold him liable solely in his capacity as warden of the Dauphin County Prison. Therefore, the instant Motion to Dismiss will be granted as to Defendant DeRose on the basis that the Complaint fails to allege the requisite personal involvement on his part.
B. Deliberate Indifference
Reed seeks to hold remaining Defendants Jeszenka, Madden and Corkle liable for his extended confinement at the Dauphin County Prison after his immediate release was directed by the Dauphin County Court of Common Pleas on Friday, February 13, 2009. We construe his claim as alleging that his detention constituted cruel and unusual punishment in violation of the Eighth Amendment.
Imprisonment beyond the term to which an inmate is sentenced may constitute cruel and unusual punishment in violation of the Eighth Amendment. Sample v. Diecks, 885 F.2d 1099, 1108 (3d Cir. 1989). In Sample, the Third Circuit Court of Appeals concluded that the record supported the district court's determination that a prisoner's Eighth Amendment rights were violated when he was imprisoned for nine months and eight days beyond the expiration of his sentence. Sample, 885 F.2d at 1110-11. However, in that case, the Court also held that there can be no Eighth Amendment liability where a prisoner alleges that he has been unlawfully held beyond the expiration of his sentence absent "a showing of deliberate indifference on the part of the defendant to whether the plaintiff suffers an unjustified deprivation of his liberty." Id. at 1110. The Court described the three elements that a plaintiff must demonstrate in order to establish liability for incarceration without penological justification as follows:
To establish § 1983 liability in this context, a plaintiff must first demonstrate that a prison official had knowledge of the prisoner's problem and thus of the risk that unwarranted punishment was being, or would be, inflicted. Second, the plaintiff must show that the official either failed to act or took only ineffectual action under circumstances indicating that his or her response to the problem was a product of deliberate indifference to the prisoner's plight. Finally, the plaintiff must demonstrate a causal connection between the official's response to the problem and the infliction of the unjustified detention.
In Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993), the Third Circuit Court of Appeals concluded that the district court properly determined that an inmate was not subjected to cruel and unusual punishment when he was imprisoned for three months after the expiration of his term. 986 F.2d at 687. In examining the district court's determination that the plaintiff failed to show deliberate indifference on the part of the prison official defendants, the Court observed that a plaintiff may recover under § 1983 on an Eighth Amendment claim only where he establishes that a defendant acted "intentionally or with a state of mind described as deliberate indifference to deprivation of the victim's constitutional rights." Id. (citing Wilson v. Seiter, 501 U.S. 294 (1991)). In particular, the Court recognized that "[d]eliberate indifference has been demonstrated in those cases where prison officials were put on notice and then simply refused to investigate a prisoner's claim of sentence miscalculation." Id. (citing Alexander v. Perrill, 916 F.2d 1392, 1398 (9th Cir. 1990); Haygood v. Younger, 769 F.2d 1350 (9th Cir. 1985).
Preliminarily, the Court notes that the plaintiffs in Sample and Moore were detained beyond the termination of their sentences for periods of just over nine months and three months, respectively. The Sample Court recognized that "[d]etention for a significant period beyond the term of one's sentence inflicts a harm of a magnitude similar to that involved in Estelle [v. Gamble, 429 U.S. 97(1976)]." Sample, 885 F.2d at 1109. Reed was detained for four (4) days after his release from the Dauphin County Prison was directed and was released on the next business day after his release was directed.*fn2 As such, it is unclear whether this relatively short period of extended confinement constitutes a sufficient harm to trigger an Eighth Amendment violation. See Sample, 885 F.2d at 1109.
Notwithstanding whether the length of time during which Reed was confined after his release was directed is sufficient to state a claim, accepting his allegations as true, Reed fails to establish § 1983 liability under the three elements identified in Sample. See Sample, 885 F.2d at 1110. Although he alleges that he contacted Defendants Jeszenka, Madden, and Corkle to inquire as to when he would be released, and therefore has satisfied the first Sample element that they were aware that he was being held after his release was directed, he fails to allege facts sufficient to show that their responses constituted deliberate indifference to his situation. See id.
The Sample Court observed that, "[a]mong the circumstances that are relevant to a determination of whether the requisite attitude was present are the scope of the official's duties and the role he or she played in the everyday life of the prison." Id. The Court added that "if a prison official knows that, given his or her job description or the role he or she has assumed in the administration of the prison, a sentence calculation problem will not likely be resolved unless he or she addresses it or refers it to others, it is far more likely that" the prison official acted with deliberate indifference. Id. In the instant case, Defendants Jeszenka, Madden, and Corkle all were employed as captains at Dauphin County Prison at the time of the events alleged in the Complaint, and therefore, as indicated by their responses to Reed's inquiries, their duties do not include the final processing that is necessary to release inmates. Nevertheless, we will address the allegations against each of the Defendants in turn.
As to Defendant Jeszenka, Reed does not allege that Jeszenka took any intentional action to prolong his detention. To the contrary, it appears that Jeszenka reasonably responded to Reed by advising him that an order directing his release would be submitted to the Records Department by the next morning.
With regard to Defendant Madden, accepting as true Reed's allegation that Madden responded to his inquiry by stating that he would file a release order and get back to him, but he never responded back, this allegation is insufficient to establish deliberate indifference by Madden. At most, his failure to report back to Reed constitutes negligence. Mere negligent conduct is not sufficient to establish a violation of constitutional rights for which compensation may be awarded. Davidson v. Cannon, 474 U.S. 344, 347-48 (1986).
As to Reed's allegation that, when he contacted Defendant Corkle, he was "told I would have to wait until someone came to work in Records to enter the information in computer for my release maybe 2/17/09," this allegation fails to suggest an intentional refusal to assist Reed that rises to the level of deliberate indifference. (See Doc. 1 at 2 ¶ 6.) The allegation shows that Corkle did not act with deliberate indifference, but rather believed that Reed's issue would be resolved without further action on his part. In sum, accepting Reed's allegations as true, the remaining Defendants' actions do not exhibit the "highly unreasonable conduct or . . . gross departure from ordinary care" necessary to constitute deliberate indifference. See Moore, 986 F.2d at 686 (citing Haygood v. Younger 769 F.2d 1350 (9th Cir. 1985) (mere negligent conduct is insufficient to impose liability).
If a complaint is subject to a Rule 12(b)(6) dismissal, as is the case here, a district court must permit a curative amendment or explain why amendment would be futile. See Phillips v. Allegheny County, 515 F.3d 224, 245-46 (3d Cir. 2008); Alston v. Parker, 363 F.3d 229, 235 (3d Cir.2004). It does not matter whether or not a plaintiff seeks leave to amend. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (citing Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000)). Amendment is futile if the complaint, as amended, would fail to state a claim upon which relief could be granted. In re Alpharma Inc. Sec. Litig., 372 F.3d 137, 153 (3d Cir. 2004). Thus, futility is governed by the same standard of legal sufficiency as a Rule 12(b)(6)motion to dismiss. Id. at 153-54. If a claim would still be deficient even after the pleading was amended, leave to amend should not be granted. In this case, no amendment would establish that Defendants' actions rose to the level of deliberate indifference such that Reed could establish liability under § 1983 for an Eighth Amendment violation. Therefore, amendment would be futile, and dismissal of the Complaint will be with prejudice. An appropriate Order will enter.
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Self awareness, self control, and social awareness are all key components of emotional intelligence. But the final piece –and a crucial one, especially in business – is being able to manage one's relationships.
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About Jeff Masters
Cat 6 lead authors: WU cofounder Dr. Jeff Masters (right), who flew w/NOAA Hurricane Hunters 1986-1990, & WU meteorologist Bob Henson, @bhensonweather
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August 15, 2011
WENDY L. CRESCENZO, PLAINTIFF-APPELLANT,v.JOHN CRESCENZO, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1973-06E.
Argued April 13, 2011
Before Judges Fuentes, Ashrafi and Nugent.
Plaintiff Wendy Crescenzo appeals from a December 23, 2009 order of the Family Part that modified the amount of permanent alimony defendant John Crescenzo must pay, declined to compel him to obtain additional life insurance coverage to protect future alimony payments, and denied reimbursement of her attorney's fees. Although the Family Part's decisions relevant to modifying alimony indicate the court considered several of the relevant statutory factors of N.J.S.A. 2A:34-23b, the record does not show that all factors were adequately addressed. Furthermore, the amount of alimony ordered has led the parties to conclude that the court used a simplified mathematical formula to set alimony based only on earned income of the parties. We reverse in part and remand for further proceedings in conformity with the statutory requirements.
This case unfortunately illustrates continuing involvement of the Family Part in the divorced parties' financial affairs after a final judgment of divorce has been entered. An award of permanent alimony that was properly granted after a thirty-six year marriage, followed by immediate changed circumstances in the available earned income to pay that alimony, has resulted in almost continuous litigation in which neither party can find satisfaction and accumulating attorney's fees deplete the parties' financial resources.
Wife and husband in this case were married in 1971 and divorced after a two-day trial in 2007.*fn1 At the time of divorce, the parties were in their late fifties, and their two children were emancipated. Relevant to issues of financial support, the Family Part determined that husband earned about $221,600 per year from his executive position at Sanofi Aventis Pharmaceutical, and the court imputed income of $14,870 per year to wife. A judgment of divorce was entered on June 27, 2007, awarding wife permanent alimony of $95,000 per year, payable in monthly installments of $7,916.66.
Even before the entry of the judgment, however, husband was laid off from his job at Sanofi Aventis in April 2007. Consequently, the parties filed motions pertaining to alimony and other matters, which the court denied at that time by orders dated October 22, 2007. In accordance with the court's instructions following trial, the parties negotiated and submitted an Amended Dual Judgment of Divorce incorporating their agreement on additional issues.
The amended judgment, dated December 17, 2007, repeated the permanent alimony obligation as previously stated, and it required that husband secure a life insurance policy of $500,000 for the purpose of protecting wife's alimony payments. The judgment required that wife be named as the owner and beneficiary of the policy. It permitted a policy with a decreasing face amount, reducing the benefit payable upon husband's death over a period of years based upon life expectancy tables.*fn2 The judgment further stated that if husband could not reasonably procure $500,000 in life insurance coverage, the court would entertain a motion to modify that obligation based on costs. Also, the amount of life insurance coverage could be modified if in the future the court reduced husband's alimony obligation.
On January 18, 2008, the Family Part denied husband's renewed motion to recalculate his alimony obligation because of his unemployment and health problems. On appeal, we ordered a limited remand concerning the alimony obligation, and the Family Part scheduled a plenary hearing for May 2008. Before the hearing occurred, the parties reached agreement and presented a consent order that was eventually filed on August 12, 2008. The consent order reduced husband's alimony obligation to $36,000 per year because of his unemployment. The appeal pending before us at that time was dismissed.
After the consent order, husband remained unemployed and did not make timely payments of $3,000 per month. In 2009, the parties again filed motions pertaining to alimony. On March 6, 2009, the Family Part denied without prejudice husband's request to modify his alimony obligation, stating that husband had not demonstrated a substantial and permanent change in circumstances that would warrant a plenary hearing. In addition, the court granted wife's request for proof of life insurance but modified husband's obligation, reducing the amount of required insurance benefit to $189,000 because of his reduced alimony obligation.
The parties then filed yet another set of motions. After hearing oral argument on July 16, 2009, the Family Part denied without prejudice husband's request to modify his alimony obligation and wife's request for proof of life insurance. Instead, the court scheduled a plenary hearing to be held in August 2009: 1) to address whether husband's unemployment status constituted a permanent change in circumstances warranting a reduction in his alimony obligation; 2) to require husband to provide proof that he attempted to secure a life insurance policy pursuant to the March 6, 2009 order; and 3) to address both parties' request for counsel fees.*fn3
After conducting the plenary hearing, the Family Part issued its decision in a letter-opinion of September 9, 2009.
The court concluded that husband's unemployment and ill health demonstrated a significant change of circumstances under Lepis v. Lepis, 83 N.J. 139, 151 (1980), warranting a reduction of his alimony obligation. The court imputed income to husband of $65,000 based on his prior work history and job search and made reference to income of $14,870 imputed to wife at the time of trial. The court concluded:
Using these numbers and the other factors under [N.J.S.A.] 2A:34-23(b)1-13, previously addressed, a yearly alimony figure of $15,000.00, payable in monthly installments of $1,250.00 would best address the current situation, effective June 11, 2009. Arrears shall be paid in the amount of $300.00 per month.
Addressing the issue of life insurance, the court stated that, considering husband's financial situation and good faith, a $189,000 ten-year term policy was sufficient because the expense "to change this policy for a ten year term to a twenty-year term will be cost prohibitive." Finally, the court reviewed the factors listed in Rule 5:3-5(c) pertaining to an award of attorney's fees and denied both parties' request in that regard.
The court entered an order on September 9, 2009, which mistakenly stated husband's alimony obligation was $1,500 per month. The order also stated that if husband's income rose above $65,000, alimony would be adjusted. The order required husband to maintain the term life insurance policy for $189,000, naming wife as the sole beneficiary. On September 30, 2009, the court entered an order correcting the alimony figure to $1,250 per month.*fn4
Before the September 2009 orders were issued, husband's attorney wrote to the court and wife's attorney on August 27, 2009, that husband had obtained new employment and would have a yearly income of $95,000. Court staff did not provide counsel's letter to the Family Part judge before the September 2009 orders and the court's letter-opinion were issued.
Wife filed a motion for reconsideration of the September orders based upon husband's re-employment. After hearing oral argument, the court entered an order on December 23, 2009, that:
1) raised husband's alimony obligation to $2,000 per month, and $400 per month toward arrears; 2) denied wife's request to modify the September 9, 2009 order as to sufficiency of the ten-year term insurance policy; and 3) denied both parties' request for attorney's fees. Wife filed a notice of appeal from the December 23, 2009 order.
The judge of the Family Part then issued a letter-statement pursuant to Rule 2:5-1(b) explaining further his December 23, 2009 order. In addition to relying on the changed circumstances standard of Lepis, supra, 83 N.J. 139, the judge suggested that the findings of September 9, 2009, still applied to the December 23, 2009 order with the single change that husband's income was now $95,000 rather than the imputed $65,000 while he was unemployed.
On appeal, wife argues: 1) the Family Part arbitrarily set defendant's alimony obligation without adequate explanation; 2) the ten-year term life insurance policy is not sufficient and contrary to the parties' agreement, especially since husband has new employment; and 3) wife is entitled to reimbursement of her attorney's fees for the motions.
We review the Family Part's decision on alimony for abuse of its discretionary authority. See Innes v. Innes, 117 N.J. 496, 504 (1990); Cox v. Cox, 335 N.J. Super. 465, 473 (App. Div. 2000). In Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340 (App. Div. 2009), we elaborated on what our standard of review entails:
To vacate a trial court's finding concerning alimony, we must conclude that the trial court clearly abused its discretion or failed to consider all of the controlling legal principles, or we must otherwise be satisfied that the findings were mistaken or that the determination could not reasonably have been reached on sufficient credible evidence present in the record after considering all of the proofs as a whole. [Id. at 354.]
Here, the Family Part's letter-opinion of September 9, 2009, and supplemental statement of March 26, 2010, provide reasons for setting alimony under the changing circumstances of husband's unemployment and subsequent re-employment. However, the court's reasons do not address all factors relevant to setting the amount of alimony.
N.J.S.A. 2A:34-23c requires that the court "make specific findings on the evidence" regarding statutory factors relevant to an award of alimony. Those factors are listed in N.J.S.A. 2A:34-23b:
(1) The actual need and ability of the parties to pay;
(2) The duration of the marriage or civil union;
(3) The age, physical and emotional health of the parties;
(4) The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living;
(5) The earning capacities, educational levels, vocational skills, and employability of the parties;
(6) The length of absence from the job market of the party seeking maintenance;
(7) The parental responsibilities for the children;
(8) The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;
(9) The history of the financial or non-financial contributions to the marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;
(10) The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;
(11) The income available to either party through investment of any assets held by that party;
(12) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment; and
(13) Any other factors which the court may deem relevant.
In Carter v. Carter, 318 N.J. Super. 34, 42 (App. Div. 1999), we held that when ordering alimony, the court "must adhere to the statutory requirement in every case, whether contested or uncontested." That is, the court must make findings of fact and determine a fair amount of alimony based upon the statutory factors. See also Rule 1:7-4 (statement of judge's findings of fact and conclusions required for judgments and appealable orders); Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996) (remand necessary because of Family Part's "[n]aked conclusions" inadequately supported by findings of fact in accordance with the statutory provisions authorizing an award of alimony); Schwarz v. Schwarz, 328 N.J. Super. 275, 282 (App. Div. 2000) ("an articulation of reasons is essential to the fair resolution of" a child support dispute).
Here, some of the statutory factors are self-evident and do not require discussion or detailed findings. For example, the length of the marriage and wife's primary role as a homemaker and caregiver for the children appear not to be matters in dispute that require detailed fact finding. Moreover, the Family Part's decisions were certainly more than bare conclusions. But the court did not state findings of fact pertaining to issues such as wife's need for alimony to support herself, the effect of equitable distribution on each party's financial circumstances, the ability of the parties to approximate the marital standard of living through the financial resources now available to them, and whether income was available to either party through investment of assets or other resources. Although the court mentioned that husband's assets were depleted during the period of his unemployment, and wife's careful management of her assets had preserved some resources for her, the court's remarks were generalized statements that do not set forth how those factors were assessed in determining a fair amount of alimony that husband must pay.
Wife argues, and husband appears to acknowledge, that the Family Part may have used an impermissible formula to determine the amount of alimony, rather than applying the factors required by N.J.S.A. 2A:34-23b to the facts shown by the evidence. Wife contends the court subtracted her imputed income from husband's income and then awarded her thirty percent of the resulting figure by each of the September 9 and December 23, 2009 orders. The resulting figures match such a formula. In September 2009, subtracting about $15,000 imputed to wife from $65,000 imputed to husband leaves a remainder of $50,000, and thirty percent of that amount is the $15,000 per year alimony awarded at that time. In December 2009, subtracting $15,000 from the $95,000 actual new income of husband leaves a remainder of $80,000, and thirty percent of that amount is the $24,000 awarded.
We decline to conclude that the Family Part used such a formula. Nevertheless, we agree with wife that use of a percentage formula based only on earned or imputed income is not authorized by law. Such a formula does not weigh and balance particular factors as listed in the statute and as might affect each individual case.
We also note that neither the court at the time of the 2007 trial nor the parties in their August 12, 2008 consent order resorted to such a formula to determine an appropriate amount of alimony. The original $95,000 per year alimony that was awarded in June 2007 is approximately forty-six percent of the difference between the parties' incomes using the above formula, and the $36,000 agreed by the parties in August 2008 is approximately seventy-two percent of the difference. We do not suggest that either of those percentages is appropriate in determining husband's alimony obligation at this time, but the figures illustrate that a percentage amount is not consonant with either the court's prior fact findings after trial or with the parties' agreement when circumstances of husband's employment changed.
Because specific findings and conclusions relevant to determining modification of alimony were not made in accordance with all relevant factors under N.J.S.A. 2A:34-23b, we reverse so much of the order of December 23, 2009 as fixed alimony at $2,000 per month and remand to the Family Part to make more detailed findings of fact and reconsider the amount based on those findings. We do not preclude the court from determining that $2,000 is the appropriate amount but require adequate support in the record for its determination.
As to the issue of life insurance, we conclude the Family Part did not abuse its discretion or misinterpret the provisions of the amended judgment of divorce permitting modification of the amount and term of life insurance that husband must provide. We see no basis, however, for omitting the requirement that wife be designated the owner of the life insurance policy as well as its sole beneficiary. Presumably, such a designation gives wife control of any changes that could be made to that policy.
Furthermore, because we are remanding so that the Family Part can reconsider the amount of alimony, the court should also reconsider whether the $189,000 face amount and ten-year term of the policy husband obtained remain a just resolution of the dispute now that he is re-employed. In that respect, the court can consider its award of alimony on remand, whether alternative life insurance is available at reasonable cost through husband's new employment, and any other circumstances that might affect the parties' original intent at the time of the 2007 amended judgment of divorce in providing adequate insurance coverage for the wife's future alimony expectations.
Finally, we discern no abuse of discretion in the Family Part's application of the factors listed in Rule 5:3-5(c) and its determination not to award attorney's fees to either party. See Gotlib v. Gotlib, 399 N.J. Super. 295, 314-15 (App. Div. 2008); Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004).
Affirmed in part and reversed in part and remanded. We do not retain jurisdiction.
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