Posted on August 12, 2009 by Robert A. Epstein

WHEN ORAL ARGUMENT ON A MOTION IS DENIED - REVERSAL BY THE APPELLATE COURT IS OFTEN THE RESULT

One issue that has frequently arisen within recent months is what happens when a party is denied  oral argument on a motion.  In fact, we have blogged about it numerous times.  Those prior entries can be found by clicking here and here.  While the New Jersey Court Rules, 5:5-4 in particular, states that courts must "ordinarily grant rqeuests for oral argument on substantive and non-routine discovery motions," courts in certain counties have seemingly been more selective in granting oral argument of late.  This despite commentary in the Court Rules book following 5:5-4 stating that a "strong presumption" favoring oral argument on such motions exists.  In fact, this "presumption is cited over and over in appellate cases when this issue comes up.

On August 11, 2009, the Appellate Division released an unreported (not precedential) decision in O'Connor v. Drobner, which concluded that the trial court should have granted oral argument on the Wife's cross motion as to unreimbursed medical expenses, child support arrears, and private school expenses, rather than just address them in a supplemental statement of reasons. 

Interesting was the Appellate Division's focus on the Husband's need for oral argument on these issues, which went beyond the bounds of the relief sought in his own motion, even though such relief was sought by the Wife.  Specifically, the husband filed a motion on a limited, unrelated issue and did not seek oral argument.  The wife filed a cross motion and sought oral argument.  Given the Court Rules, the husband's ability to respond is limited by page limitations, however, in light of the wife's request for oral argument, he expected to have the ability to argue the issues raised in the wife's cross motion.  The matter was reversed and remanded to the trial court for that reason.

While trial courts may continue to deny oral argument, it appears that the Appellate Division will pulls things back when necessary by remanding and requiring oral argument within the confines of 5:5-4 and understanding that litigants cannot be deprived of the opportunity to fully present their case in court. 

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Posted on July 6, 2009 by Sandra C. Fava

PROCEDURE CLEARED UP FOR THE FILING OF CROSS MOTIONS

Since I began practicing in family law, there has been a great debate about whether when filing a cross motion in the family part, if the subject matter has to relate back to the subject matter of the motion. 

Motion practice in family law is very common.  Before a final judgment of divorce is entered motions are filed to address issues of support, custody, visitation, and a gamut of other issues that may arise in family court matters.  After a judgment of divorce is entered motions are filed to enforce or modify its terms.  The New Jersey Court Rules provide specific guidelines for filing deadlines, font, spacing, length of pages, service, etc. when filing a motion.  When one party files a motion seeking any type of relief, the other party has a right to respond, within a certain timeframe and has the choice to file a cross motion to seek their own affirmative relief.

So why the debate? The Rule regarding cross motions in family matters was unclear and interpreted all over the map by trial judges. 

I guess you could say that there were two sides of the coin.  On the one hand, requiring the subject matter of a cross motion to relate to the subject matter of a motion saves litigants time and money.  Money not only in filing fees but attorneys fees as well.  The attorney files a cross motion addressing the relief sought in the motion and requesting new relief.  The moving party has an opportunity to respond.  The attorney appears in court on one occasion to argue the merits of the application and the judge makes his/her decision.

On the other side of the coin is the argument that when a party files a cross motion seeking several prayers for relief entirely unrelated to the initial application, the moving party is deprived of the chance to fully respond due to the 10 page limit.  I have heard litigants and attorneys alike argue that they or their client have been prejudiced by the inability to fully respond to issues raised in a cross motion given the page limit.

The Appellate Division,in a recent unpublished opinion, has finally cleared up this issue.  In the matter of Marangos v. Marangos, decided June 4, 2009, A-2625-07T1, the Court tells us that Rule 1:6-3(b) requires that the subject matter of all cross motions relate back to the subject matter of the original motion.  This rule applies to motions filed in the family part. 

From a practice perspective, it will be interesting to see how judges will respond to this decision.  Although unpublished and therefore not binding, the decision is persuasive and some judges may follow its holding and require that the subject matter of all cross motions relate back to the subject matter of motions.  If not litigants may be required to file separate applications for the relief they seek.  Given the backlog in our courts due to the a number of judicial vacancies which remain, this new requirement could only add to the pile of motions that remain to be decided.

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