NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5656-13T2
YVIETTA MATISON, APPROVED FOR PUBLICATION
January 13, 2016
Plaintiff-Respondent,
APPELLATE DIVISION
v.
MARK LISNYANSKY,
Defendant-Appellant.
________________________________________________________________
Argued November 12, 2015 – Decided January 13, 2016
Before Judges Fuentes, Koblitz and Gilson.
On appeal from Superior Court of New Jersey,
Chancery Division, Bergen County, Docket No.
FM-02-1572-10.
Scott Adam Laterra argued the cause for
appellant (Laterra & Hodge, LLC, attorneys;
Mr. Laterra and Jeffrey B. Hodge, on the
brief).
Bruce J. Ackerman argued the cause for
respondent (Pashman Stein, PC, attorneys;
Mr. Ackerman, Kamilla B. Rodrigues, and Tadd
J. Yearing, on the brief).
The opinion of the court was delivered by
KOBLITZ, J.A.D.
We dismiss this appeal based on the legal doctrine of
fugitive disentitlement. A father may not obtain the protection
of our judicial system to appeal a palimony and custody default
judgment while he remains outside of the country avoiding arrest
on an outstanding child-support bench warrant.
Defendant Mark Lisnyansky appeals from the trial court's
June 20, 2014 order denying his motion to vacate a May 1, 2013
default judgment, which awarded plaintiff Yvietta Matison
palimony and custody of the couple's twin children, who were
born in 2004. Prior to the default hearing, a warrant for
defendant's arrest had been issued due to his failure to pay
court-ordered child support. See R. 1:10-2; Pasqua v. Council,
186 N.J. 127, 140 (2006) (stating that a parent is subject to
criminal contempt proceedings pursuant to Rule 1:10-2 when the
"parent fails to abide by a court-ordered child support
obligation"). On the day of the hearing, defendant was in
Russia and did not personally appear before the trial court.
According to plaintiff, before she came to the United
States in March 2006, defendant purchased a home valued at
approximately $1.9 million in Franklin Lakes and paid for
substantial renovations to the home. He also provided a nanny,
interior decorator, and secretary. During this time, defendant
returned to Europe to conduct business and plaintiff remained in
the Franklin Lakes home with the children and their nanny. He
subsequently sold the property and plaintiff and the children
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moved to Tenafly where the children were enrolled in private
school. Defendant continued to provide support to plaintiff
from abroad.
In 2012, after defendant stopped supporting his children,
plaintiff obtained a court order for child support. The April
27, 2012 support order states: "A writ of Ne Exeat shall remain
entered against defendant" and requires that a "bond or
alternate security, if any[,] shall be posted in an amount to be
determined by the Court upon receipt of defendant's revised Case
Information Statement." The order also states: "The Warrant for
defendant's arrest shall remain outstanding until he satisfies
his support arrears and complies with the other terms of this
Order."
After a number of adjournments, the court scheduled the
matter for trial on December 4, 2012. Defendant sought another
adjournment, which the trial court denied. Defendant then
failed to appear for the trial and discharged his attorney. The
court entered a default against defendant and held a four-day
hearing on plaintiff's claims for relief. On May 1, 2013, the
trial court entered a default judgment. Defendant later moved
to vacate the default judgment, one day prior to the one-year
limit set forth in Rule 4:50-2. When this motion was denied, he
filed this appeal through counsel. While defendant initially
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submitted himself to New Jersey's jurisdiction by filing for
relief here, after the warrant was issued he left the country
and became a fugitive. The child support bench warrant first
issued in 2012 remains outstanding against him. Neither party
having raised the issue, we directed the parties at oral
argument to brief the issue of fugitive disentitlement.1
The fugitive disentitlement doctrine bars a fugitive from
seeking relief in the judicial system whose authority he or she
evades. Matsumoto v. Matsumoto, 171 N.J. 110, 120 (2002). The
doctrine is applicable to both civil and criminal cases. Id. at
128-29. In Matsumoto, Justice Long set forth the standards for
application of the doctrine:
[T]he party against whom the doctrine is to
be invoked must be a fugitive in a civil or
criminal proceeding; his or her fugitive
status must have a significant connection to
the issue with respect to which the doctrine
is sought to be invoked; invocation of the
doctrine must be necessary to enforce the
judgment of the court or to avoid prejudice
to the other party caused by the adversary's
fugitive status; and invocation of the
doctrine cannot be an excessive response.
[Id. at 129.]
Justice Long underscored that the fugitive disentitlement
doctrine is not to be imposed as a punishment, but as an
1
We have ignored all facts set forth in these briefs that were
not provided to the trial court.
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invocation of the court's inherent power to enforce its orders
"against those who have evaded them by fleeing either physically
or constructively." Id. at 135.
Here, defendant has been avoiding his court-ordered
responsibility to support his two children while at the same
time seeking to be heard by the court with regard to other
issues in the litigation. He seeks to avoid the imposition of
the doctrine because one of the issues in the case involves
custody. We agree that the doctrine is not generally consistent
with a proper analysis of the best interests of the child. See
id. at 133 (stating that "whatever limits the fugitive
disentitlement doctrine might impose in other settings would not
be applicable in a custody case in which no enforcement issue
exists"). Here, however, defendant has been afforded contact
with his children by way of continued "supervised parenting time
to be arranged as between the parties." Defendant offers no
custodial alternative, nor did he complain about custody
throughout the litigation — waiting until the last possible date
to file a motion to vacate default judgment. He may always
reopen the issue of custody should he be in a position to offer
his children a viable custodial alternative. See Hand v. Hand,
391 N.J. Super. 102, 105 (App. Div. 2007) (stating that a party
can modify a custody order by demonstrating "changed
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circumstances that affect the welfare of the children"). We
decline to afford him the protection of the court while he
flaunts the court's authority from overseas.
This appeal is therefore dismissed.
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