                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0920-17T3

MARINA DISTRICT
DEVELOPMENT CO., LLC
t/a BORGATA,

          Plaintiff-Appellant,

v.

MICHAEL TSEYTIN,

     Defendant-Respondent.
____________________________

                    Submitted December 19, 2018 – Decided March 13, 2019

                    Before Judges Vernoia and Moynihan.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Atlantic County, Docket No. L-2720-12.

                    Josiah Knapp, attorney for appellant.

                    Respondent has not filed a brief.

PER CURIAM

          Plaintiff Marina District Development Co., LLC t/a Borgata appeals from

the trial court's order denying plaintiff's motion for reconsideration of an order
denying its motion to hold defendant in contempt for failing to appear for a

court-ordered supplementary proceedings deposition, R. 4:59-1(f), following

the entry of a $202,332.60 judgment, plus costs, against defendant. Plaintiff

argues the trial court erred by requiring that plaintiff first file an order to show

cause to commence contempt proceedings. Because plaintiff requested that

defendant be held in contempt, the trial court correctly ruled such relief is

available only if proceedings are instituted by order to show cause; 1 thus, we

affirm.

      We conduct a de novo review of the applicable Court Rules, according no

special deference to the "trial court's interpretation of the law." Manalapan

Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Plaintiff,

as a judgment-creditor, had the option of taking defendant's deposition or

proceeding as provided by Rule 6:7-2. R. 4:59-1. If, as here, the judgment-

debtor fails to obey an order for discovery, the judgment-creditor could

commence proceedings seeking relief pursuant to Rule 1:10-3 by filing a

supported notice of motion. R. 6:7-2(e). The notice of motion must set forth a

return date and the relief the judgment-creditor seeks, and include an order:



1
  Contempt proceedings can also be commenced by the court upon an order for
arrest, an avenue unavailable to a party. R. 1:10-2(a).
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                                         2
           (1) adjudicating that the judgment-debtor has violated
           the litigant's rights of the judgment-creditor by failing
           to comply with the order for discovery or information
           subpoena;

           (2) compelling the judgment-debtor to furnish answers
           immediately as required by the order for discovery or
           information subpoena;

           (3) directing that if the judgment-debtor fails to appear
           in court on the return date or to furnish the required
           answers, he or she shall be arrested and confined to the
           county jail until he or she has complied with the order
           for discovery or information subpoena;

           (4) directing the judgment-debtor, if he or she fails to
           appear in court on the return date, to pay the judgment-
           creditor's attorney fees, if any, in connection with the
           motion to enforce litigant's rights; and

           (5) granting such other relief as may be appropriate.

           [Ibid.]

     Rule 6:7-2(f) provides an enforcement mechanism:

           If the judgment-debtor has failed to appear in court on
           the return date and the court enters an order to enforce
           litigant's rights, [the order, in prescribed form] shall
           state that upon the judgment-debtor's failure, within 10
           days of the certified date of mailing or personal service
           of the order, to comply with the information subpoena
           or discovery order, the court may issue an arrest
           warrant.

     The Rule pursuant to which such relief is sought, R. 1:10-3, provides,

"[n]otwithstanding that an act or omission may also constitute a contempt of

                                                                       A-0920-17T3
                                      3
court, a litigant in any action may seek relief by application in the action." The

relief available in a Rule 1:10-3 motion – commonly known as a motion to

enforce, or in aid of, litigant's rights 2 – is limited in scope "to remediation of the

violation of a court order." Burke, 206 N.J. at 371. Neither Rule 6:7-2 nor Rule

1:10-3 provides for contempt as an available form of relief to a litigant seeking

to enforce a court's supplementary-proceedings discovery order. The sanctions

against a non-compliant judgment-creditor available under Rule 1:10-3 are

intended to be coercive. Milne v. Goldenberg, 428 N.J. Super. 184, 198 (App.

Div. 2012). Likewise, the express relief provided in a Rule 6:7-2 order is

coercive, not punitive, in nature.

      Conversely, contempt proceedings are penal. Zoning Bd. of Adjustment

v. Datchko, 142 N.J. Super. 501, 509 (App. Div. 1976). Proceedings "to punish

for contempt [except for contempt in the court's presence] shall be on notice and

instituted only by the court upon an order for arrest or an order to show cause."

R. 1:10-2. As we said in Datchko, 142 N.J. Super. at 509-10, a person charged

with contempt

             must be afforded all of the rights of one charged with a
             crime except the right to indictment and to trial by jury.
             This includes the right to have the order to show cause

2
  See Abbott v. Burke, 206 N.J. 332, 359 (2011); see also Manalapan Realty,
140 N.J. at 392.
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                                          4
            itself specify the acts or omissions alleged to have been
            contumacious. Moreover, the order to show cause must
            clearly indicate that it involves a true contempt
            proceeding and not, as here, supplementary relief to the
            litigant.

      Although plaintiff could have availed itself of the panoply of remedies

available under Rules 6:7-2 and 1:10-3, it chose to seek to hold defendant in

contempt.3 As the trial court noted, contempt proceedings must be initiated by

order to show cause. The court, therefore, did not express "its decision based

upon a palpably incorrect or irrational basis" or fail to consider or "appreciate

the significance of probative, competent evidence" to justify reconsideration of

its prior ruling. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996)

(quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401-02 (Ch. Div. 1990)).

      Affirmed.




3
  Plaintiff's moving papers were not included in the record. In its merits brief,
plaintiff states it "filed a [m]otion . . . to hold [defendant] in contempt of court
for his failure to attend a court-ordered deposition."
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