                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-4840-13T1

LISA IPPOLITO,
                                        APPROVED FOR PUBLICATION
         Plaintiff-Respondent,
                                            November 9, 2015
    v.
                                           APPELLATE DIVISION
TOBIA IPPOLITO,

          Defendant-Appellant.1
_______________________________________________________

         Argued October 27, 2015 – Decided November 9, 2015

         Before Judges Fisher, Rothstadt and Currier.

         On appeal from the Superior Court of New
         Jersey, Chancery Division, Family Part,
         Morris County, Docket No. FM-14-147-13.

         Angelo Sarno argued the cause for appellant
         (Snyder & Sarno, LLC, attorneys; Tobia
         Ippolito, on the pro se brief).

         William M. Laufer argued the cause for
         respondent (Laufer, Dalena, Cadicina, Jensen
         & Boyd, LLC, attorneys; Mr. Laufer, of
         counsel; Kimberly Gronau Boyd and Carly
         DiFrancisco, on the brief).

    The opinion of the court was delivered by

FISHER, P.J.A.D.

1
  Although this appeal arises from a summary contempt proceeding
initiated by the trial judge pursuant to Rule 1:10-2 – and thus,
should bear a caption in the form designated in Rule 1:10-2(a) –
we utilize the caption in the related matrimonial action because
the order that has been appealed was so captioned.
       In this three-year old matrimonial action, the family judge

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

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

letter    from      counsel     for     plaintiff           Lisa     Ippolito;       the    letter

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

2014    order,      which     prohibited          defendant          from    "threatening         or

intimidating any expert in this matter."                                  Because the judge

erred     by    presiding       over     the           very    contempt          proceeding       he

initiated,       we   vacate      the    order         under    review       and    remand       the

contempt proceeding to the trial court; the assignment judge is

directed to forthwith designate a judge to preside over                                          the

contempt proceeding.

       Having       concluded     that       the       matter      must     begin    anew      with

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

the    underlying        circumstances.                As   noted,     defendant         had   been

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

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

such conduct when the matter was handled by another family judge

who     had    recused      himself.              In    responding          to    this     appeal,

plaintiff       has      regaled        us        with        many     of        these     earlier

circumstances.            These    prior          events       may    constitute         relevant

evidence in the contempt proceedings that will follow today's

remand, but they have no bearing on the primary question before



                                                  2                                        A-4840-13T1
us    –    whether   the    family    judge    who   initiated      the   contempt

proceeding should have presided over the trial of that matter.

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

initiating       judge     from    presiding     over   a     summary     contempt

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

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

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

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

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

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

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

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

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

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

defective" for the initiating judge to preside over a summary

contempt proceeding).            This approach was adopted chiefly because

of    the    potential     for     arbitrariness     when    a    judge   acts     as

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

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

Weintraub:

              With respect to procedural antidotes, our
              practice in contempt matters is calculated
              to limit the risk of arbitrariness and the
              appearance of arbitrariness.   So, for exam-
              ple, when the charge is a violation of a
              court order, the penal proceeding may not be



                                         3                                 A-4840-13T1
            heard by the judge whose order was allegedly
            contemned unless the defendant consents to
            his sitting.   Thereby obviated is the risk
            which inhered singularly in the contempt
            area when the offended judge sat in judgment
            of his own charge.

            [Fair Lawn Educ. Ass'n, supra, 63 N.J. at
            115 (citations omitted).]

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

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

instituted    the     prosecution       if       the    appearance     of   objectivity

requires trial by another judge."2                     We are, therefore, required

to consider whether "the appearance of objectivity" prohibited

what occurred here.

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

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

complaint      of      plaintiff's        counsel            regarding      defendant's

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

history, which had led to orders limiting or prohibiting such

communications.        The order to show cause also appears to have

issued     before     defendant    had       an        opportunity    to    explain   or

respond.       This     sudden    leap       from        a   complaining     letter   of

matrimonial    counsel     to     the    commencement          of    summary   contempt

proceedings might alone suggest the appearance of objectivity

2
   The prior versions           of the           Rule prohibited a judge from
presiding  over  the            summary           contempt  proceeding without
exception.



                                             4                                 A-4840-13T1
had been lost.      But, even if that were not so, we are satisfied

from the events that followed that the judge erred in presiding

over the summary contempt proceeding he initiated.

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

summary prosecution of a contempt committed outside the presence

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

that reason, warrants "scrupulous attention to the procedural

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

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

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

before   even    inviting      the    appearances       of   counsel   –   with     a

statement   describing        the    proceeding    by    stating   that    he    had

directed defendant to

            show cause before this [c]ourt why his
            failure to comply with the [c]ourt's [o]rder
            of February 20, 201[4,] in addition to
            numerous   prior   court   orders[,]    which
            prohibited    [d]efendant   from     directly
            contacting any experts in this matter[,]
            would not be subject to me holding him in
            contempt.




3
  Because of concerns about the arbitrariness of the power of
summary contempt, appellate review is immediately available as
of right, R. 2:2-3(a)(1), and execution of sentence is
automatically stayed for five days following its imposition or,
if an appeal is taken, during the pendency of the appeal, R.
1:10-2 (incorporating the stay provisions of the rule applicable
to contempt in the presence of the court, R. 1:10-1), although
bail may be required if reasonably necessary.



                                         5                                 A-4840-13T1
                 Now, let's be clear.   Counsel is here,
            and we'll have your appearances in a minute.
            But I note . . . [c]ounsel is here. I note
            that the parties are here.       And when I
            direct   this  following   comment   at  Mr.
            Ippolito –

                 I direct this at you, sir, with all due
            respect. I am not here to find you in
            contempt. I am here to find out if you are
            in    contempt.    Understand    that?   Big
            difference.   Yes?   No?   All right.  Well,
            we'll get to that in a minute. You want to
            talk to your lawyer, no problem. That was a
            pretty basic question.

                   So, let's have Mr. Ippolito sworn.

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

the attorneys gave their appearances, the judge then turned to

defense counsel and said

            So what I want you to do, Mr. Donahue, right
            now is your client is here in the [witness]
            box.   He is here to tell me why he should
            not be held in contempt.     All right?   So
            please question him and he'll be 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 palpable; the judge spoke directly at defendant and

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

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

mentioned, intended to avoid the inherent arbitrariness of a

summary    contempt      proceeding.         The   utilization     of    all   those

safeguards    ensures      the    "appearance      of     objectivity."        Their



                                         6                                 A-4840-13T1
absence, as readily revealed by the judge's opening comments,

calls into question the objectivity of the proceedings.

       For     example,       because         the       commencement         of       a     proceeding

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

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

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

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

defendant       was    entitled          to    most       of    the     safeguards               accorded

criminal       defendants,             with   the        exception          of    the        right      to

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

Defendant was entitled to "the presumption of innocence, the

privilege       against           self-incrimination,                the     right          of    cross-

examination, proof of guilt beyond a reasonable doubt, and the

admissibility          of    evidence         in    accordance          with      the        rules      of

evidence."       Ibid.

       The importance of these rights is further illuminated by

their historical underpinnings.                         Similar circumstances prompted

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

sharpened our realization that a major test of true democracy is

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

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

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

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




                                                    7                                            A-4840-13T1
(1952) (dissenting opinion); see also Burdeau v. McDowell, 256

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

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

development of our liberty insistence upon procedural regularity

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

oath     and   respond   to   the   unsworn     allegations   conveyed      by

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

sought     defendant's     waiver    of   his     right    against      self-

incrimination.     And, by requiring that defendant testify first –

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

be held in contempt" – the judge mistakenly assumed defendant

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

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

burden    to   demonstrate    defendant   was     in   contempt   beyond      a

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

proceeding, the judge deprived defendant of the presumption of

innocence.5


4
  Interestingly, the judge called no other witnesses to testify –
not even the expert who was allegedly threatened or intimidated
by defendant's communication.
5
  To be sure, the judge concluded in his written opinion that
defendant "intentionally" violated "the intent and the spirit"
of the February 20, 2014 order. That is not the same as finding
that defendant intentionally acted beyond a reasonable doubt.
To the contrary, the entire tenor of the proceeding and the
content of the judge's written opinion suggests to us – in
                                                    (continued)


                                      8                              A-4840-13T1
       Defendant emphasizes another procedural safeguard bypassed

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

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

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

designates      an    attorney,       then   by   the    attorney       so    designated"

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

judge seems to have largely prosecuted the matter himself; he

directed that defendant testify first and, after defendant was

briefly      examined     by    his    own   attorney       and    then       briefly    by

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

Despite      the     Rule's    unambiguous        declaration      as     to    whom    may

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

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

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

514.

       If     there    was     any    question      about    the     "appearance        of

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

at   the     outset    and     the    proceedings       themselves      eliminate       any

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



(continued)
reviewing the matter de novo – that the judge failed to apply
the reasonable-doubt standard.
6
  We would note that the form of the order to show cause is also
problematic. Although an alleged contemnor has no constitutional
                                                     (continued)


                                             9                                   A-4840-13T1
for his finding of contempt, was the judge's own expression of

the reasons for the contempt proceedings.                     He stated that the

history of prior difficulties with experts led to his concern

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

communication with an expert; the judge opined in his written

decision that "yet another expert had been made uncomfortable

and    was   potentially    poised    to    resign     from     his   role      in   this

case."7

       For    these    reasons,      we     conclude      the     "appearance          of

objectivity" required that a different judge preside over the

trial of the summary contempt proceedings.

       We lastly consider plaintiff's argument that what occurred

was not actually a summary contempt proceeding but a proceeding

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

sufficient     merit   to   warrant       further     discussion      in    a   written

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




(continued)
right to indictment, Yengo, supra, 84 N.J. at 120, he does have
a right to notice of the charges. The assertion that defendant
violated both the February 20, 2014 order and "addition[al]
numerous other prior [c]ourt [orders]" was insufficient to put
defendant on notice of what he was being asked to defend
against.   At the very least the earlier orders that the judge
believed had been violated should have been specified.
7
  There was no proof to support that contention. The expert was
never called to testify about his alleged discomfort.



                                          10                                    A-4840-13T1
clear from everything the judge said8 and wrote9 with regard to

this proceeding – except the caption used on the order under

review – that the judge believed he was conducting a summary

contempt     proceeding.10      The     word   "contempt"     is     repeated

throughout    the   hearing11   when    describing   the    nature    of   the


8
  Toward the end of the April 23 hearing, the judge and defense
counsel engaged in a colloquy about the nature of the
proceeding.    When defense counsel argued that he did not
anticipate   that    testimony   would   be   taken,  asserting
"[g]enerally, [t]estimony isn't taken on [o]rders to [s]how
[c]ause," the judge responded:     "Well, on a contempt hearing
testimony is taken, Frank . . . . [T]his was an order to hear a
contempt citation" (emphasis added). There is no question that
the judge realized this was a summary contempt proceeding and
not a Rule 1:10-3 proceeding.
9
  In fact, the judge revealed his awareness of these inherently
different proceedings in his written opinion when he stated that
"[a] contempt of court may be considered an offense against
governmental authority, and may be punished criminally[,]" but,
"[o]n the other hand, 'a proceeding to afford a litigant
supplemental relief from an adverse party's failure to obey a
court's order is civil.'"        In short, the judge clearly
demonstrated his understanding of the difference; we therefore
decline to view the proceedings as a de facto Rule 1:10-3
hearing when the judge intended no such thing.
10
  Although a court may conduct a hearing pursuant to Rule 1:10-3
simultaneously with a Rule 1:10-2 proceeding — as the last
sentence of Rule 1:10-3 makes clear — this may only occur with
the consent of the parties and, even then, the provisions of
Rule 1:10-2(c) must still be honored.
11
   Even though courts occasionally refer to the conduct that
would support Rule 1:10-3 relief as "civil contempt," see
Anyanwu v. Anyanwu, 339 N.J. Super. 278, 290 (App. Div. 2001),
certif. denied, 170 N.J. 388 (2001), that Rule is better
understood  and   described without  utterance  of   the  word
"contempt," see Ridley v. Dennison, 298 N.J. Super. 373, 381
                                                   (continued)


                                       11                            A-4840-13T1
proceeding and uttered more than a dozen times in the judge's

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

show cause and the order that concluded the matter invoked Rule

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

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

cited numerous cases that dealt with the summary contempt power,

demonstrating a clear understanding of the difference between

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

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

(except to distinguish it from the summary contempt procedure)

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

opinion or final order.

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

to the assignment judge for the designation of another judge to

preside over the summary contempt proceeding instigated by the

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

proceedings in conformity with this opinion.     We do not retain

jurisdiction.




(continued)
(App. Div. 1997); Bd. of Educ., Twp. of Middletown v. Middletown
Twp. Educ. Ass'n, 352 N.J. Super. 501, 508-09 (Ch. Div. 2001).



                                12                        A-4840-13T1
