Satoko Matsumoto v. Tatsuya Matsumoto

VERNIERO, J.,

dissenting.

I would affirm the judgment of the Appellate Division substantially for the reasons expressed in Judge Stern’s meticulous opinion. Matsumoto v. Matsumoto, 335 N.J.Super. 174 , 762 A.2d 224 (2000). Defendants spurned the civil orders of the trial court, and they remain at large under existing arrest warrants. Consequently, the Appellate Division dismissed their appeals “without prejudice to reinstatement upon surrender of' the defendants and/or vacation of the warrants now outstanding against them.” Id. at 186 , 762 A.2d 224 (footnote omitted). That disposition is eminently fair under the circumstances.

While remaining beyond the reach of New Jersey’s law enforcement authorities, each defendant is permitted by the Court to post a bond and, in so doing, to prosecute his or her civil appeal. Like the majority, I favor employing the fugitive disentitlement doctrine fairly and equitably in all cases. However, I disagree with my colleagues in their formulation of the standard to be used when deciding whether to apply the doctrine in these and future circumstances. In a nutshell, I believe that the Court’s approach may limit the doctrine so severely that it is rendered useless.

As a general rule, the doctrine does not apply “[a]bsent some connection between a defendant’s fugitive status and his appeal[.]” Ortegar-Rodriguez v. United States, 507 U.S. 234, 249 , 113 S.Ct. 1199, 1208 , 122 L.Ed.2d 581, 597 (1993). Such a connection exists in this case. The charges lodged against defendants as contained in the indictment (conspiracy to interfere with custody, interfering with custody, and endangering the welfare of a child) are related directly to one or more aspects of plaintiffs civil action.

The criminal indictment also provides the basis to apply the doctrine in respect of any appeal from the trial court’s custody order. Unlike the majority, I cannot conclude so readily that defendants would comply with an adverse custody ruling in the *137 absence of their returning to New Jersey with the child and submitting to this State’s jurisdiction. Indeed, defendants’ conduct to date belies any such prospect of compliance. As indicated in the majority opinion, defendants refused all letters and gifts sent to the child by plaintiff during the initial period when the child remained in Japan. Not surprisingly, mother and child became estranged. Under those circumstances, I do not interpret the child’s short-lived stay in New Jersey in July 1998 as a reliable indication of defendants’ willingness to comply with the custody order. In my view, then, neither Pesin v. Rodriguez, 244 F.3d 1250 (11th Cir.2001), nor the other cases cited by the majority, require the Court’s disposition.

The Court’s approach in permitting a fugitive to avoid application of the doctrine by posting a bond is attractive on the surface: it provides a mechanism to fund any judgment in favor of plaintiff should she prevail on appeal. Although that disposition may enhance this one plaintiffs ability to collect a monetary award, it diminishes the ability of the system as a whole to bring fugitives to justice. Perhaps this is a hard choice, but the Court should favor strengthening the system over enhancing the collection efforts of any one litigant. That choice, however, is not difficult here because plaintiff has not sought the Court’s remedy. She asks only that we affirm the judgment below.

One aspect of the procedural history bears repeating. The Appellate Division dismissed defendants’ appeal without prejudice. Thus, the harshness feared by post-Degen courts such as Sarlund v. Anderson, 205 F.3d 973, 974 (7th Cir.2000), in which the Seventh Circuit addressed “whether to dismiss a suit with prejudice as a sanction for mistakes, omissions, or misconduct[,]” (emphasis added), simply does not exist in this case. The Appellate Division’s disposition has not closed the doors to the courthouse; it has left them quite ajar. Defendants need only comply with all existing warrants and return the child to New Jersey to prosecute their civil appeals.

*138 In sum, this is not an instance in which a criminal defendant is being denied access to our courts to appeal a wholly unrelated civil judgment. Both civil and criminal warrants remain outstanding against defendants, and the warrants are based essentially on the same conduct. Stated differently, all aspects of plaintiffs civil matter, including child custody issues, are inextricably linked to the outstanding warrants and pending criminal allegations. The record, therefore, justifies application of the doctrine in this case. We should not permit defendants simply to post a bond to gain the benefit of our civil courts while they continue to spurn the civil warrants and avoid answering the criminal indictment. I respectfully dissent.

For affirmance as modified — Chief Justice PORITZ, Justices STEIN, LONG, LaVECCHIA and ZAZZALI — 5.

For affirmance — Justices COLEMAN and VERNIERO — 2.

Opposed — None.