APPELLATE DIVISION CREATES NEW PROCEDURE LIMITING JUDGE'S ABILITY TO RESTRICT A LITIGANT'S ACCESS TO THE FAMILY COURT
On February 3, 2010, the Appellate Division issued a reported (precedential) opinion in the case of Parish v. Parish. This case is near and dear to me because I represent Mr. Parish and we made new law.
In this post-judgment litigation we filed a motion seeking enforcement of the parties' divorce agreement because the ex-wife interfered with his parenting time with the children and to fix a parenting schedule for the next several months. The schedule was supposed to be arrived at with the assistance of a parenting coordinator but the issuance of a domestic violence temporary restraining order against Mr. Parish's ex-wife delayed that process. After the restraining order was dismissed, the parties went to the parent coordinator who made recommendations prior to the return date of the motion. Mr. Parish agreed with them - he ex-wife would not state if she agreed or not, waiting to see what the court would do.
The trial court denied Mr. Parish's motion as moot, ordered the parties back to the parent coordinator to deal with the issues in the motion and required that the parties attend settlement conferences before filing any future motions, even enforcement motions.
We appealed arguing that (1) the trial court unconstitutionally impaired Mr. Parish's access to the Court and (2) the court improperly abdicated its responsibility to a parent coordinator who cannot, by Supreme Court directive, address enforcement issues in any event.
The Appellate Division agreed in a 2-1 decision. In doing so, they crafted new requirements before a family part litigant's access to the Court can be restricted.
In doing so, the Appellate Division instituted a new procedural rule. The relevant portion of the opinion is as follows:
We also emphasize that judicial review of enforcement motions, no matter how time consuming, is essential to discerning which motions pose problems mandating immediate attention and which describe matters that are trivial. If a court finds a motion is based on unsubstantiated allegations; is frivolous, repetitive, or intended to harass the former spouse; is the result of abusive litigation tactics; or is designed to interfere with court operations, the judge has the power to craft appropriate sanctions to curb such manipulations. When the imposition of sanctions fails, injunctive relief may be warranted.
In those limited instances where appropriate, an injunction should be issued only after the judge:
1. makes a finding that past pleadings were frivolous or designed for an abusive purpose;
2. fully scrutinizes the newly filed pleadings and determines them to be repetitive and within the scope of the prescribed vexatious matters; and
3. has unsuccessfully attempted to abate the abuse by employing sanctions such as those provided by Rule 1:10-3 or Rule 5:3-7.
Additionally, any restraint entered must be circumscribed, not global, and narrowly focus on the issues shown to warrant restraint.
The Court also made clear that parent coordinators cannot address enforcement issues nor can they modify parenting plans. Further, a trial court must make decisions on motions and cannot abdicate that responsibility to third parties or experts.
Because there was a spirited dissent in this case, there is an automatic right to appeal the matter to the Supreme Court if the other side chooses to do so.
in any event, we are proud of our efforts and the results obtained in this case. Robert Epstein assisted in this matter as well.