We have recently blogged on the requirement that there be oral argument on substantive motions if it is requested.  Another requirement is that court’s should hold plenary hearings (i.e. trials) when there are conflicting certifications regarding a material fact in dispute.  That requirement was made clear again in the unreported (non-precedential) decision in Marquez v. Cabrera released on July 15, 2010. 

In this case, the Property Settlement Agreement provided that the wife got to keep two pieces of real estate owned by the parties, seemingly their largest assets, while the husband remained responsible for some debt associated with the properties.  This does not seem to pass the smell test on its face, a fact not lost on the Appellate Division in its decision.  The husband moved to set aside the agreement, alleging fraud – essentially that a signature page from a different agreement was appended to the one filed with the court on the day of the divorce hearing.  Of course, the wife denied this.  There was some credence on its face to the husband’s arguments given that there were two page sevens of the agreement. 

In any event, the trial court  denied the motion finding the wife more credible.  The problem there is that court are not supposed to make credibility determinations on mere certifications alone.  Rather, as noted above, if there are competing certifications, a plenary hearing must be held.  As such, the matter was reversed for a plenary hearing.  In addition, the Appellate Division held, "because the motion judge made credibility determinations and "may have a commitment to [her] findings," the plenary hearing must be conducted before a different judge." 

There was one other interesting thing to take from this case.  The trial court also placed great weight on the fact that the husband did not produce the notary who allegedly witnessed the signature. The Appellate Division noted that this too was improper because while perhaps he could have secured an affidavit from that person, the failure to do so at this stage of the proceedings should not have been dispositive. In fact, the Appellate Division noted that the husband would not have even been able to subpoena the notary at this point in time, relying on Welch v. Welch, 401 N.J. Super. 438 (Ch. Div. 2008). In Welch, a trial court judge said that in a post-judgment matter, where there is nothing currently pending before the court, that a party could not issue a subpoena and use that information as the basis for a motion to modify custody.  Because this was only a trial court opinion, it is not binding on other trial courts or the Appellate Division.  However, since the Appellate Division cited Welch in this case, it may give greater weight in the future to that decision.