An opinion recently rendered by the Appellate Division points out the necessity of submitting proper paperwork on motions, particularly post-judgment motions. The opinion in Palombi v. Palombi arises in the context of the denial by the motion judge to grant oral argument on motions. Oral argument is generally favored in New Jersey because by providing a platform in addition to the submitted papers with which a party may fully and completely present his or her case, it gives the court an opportunity to better flush out the issues and articulate the positions of the parties. Typically at oral argument, stipulations can be reached as to certain facts or various issues, thus leaving the court with a more focused understanding of the more important issues to be decided.

Some history of oral argument of motions is in order. In long years past, all motions in New Jersey were argued. Rarely was a motion decided in any other way, i.e., on the papers, without oral argument of counsel. However, as the court system became busier, many judges routinely denied requests for oral argument. The tension between the courts and lawyers caused by lawyers’ desires for oral argument and the courts’ desires for more expeditious methods of resolutions of issues was thought to be resolved when the rules were amended years ago to provide that in exercising discretion as to whether or not to grant oral argument, ordinarilysubstantive and non-routine discovery motions should be orally argued, and calendar and routine discovery motions should not.             

Unfortunately, the good intentions of the Supreme Court did not come to fruition, as the rule continued to be routinely ignored by some judges. Going back as far as almost three decades, the Appellate Division recognized this improper practice:

“It is our impression, however, based on the matters which have since found their way to our appeal and motion calendars, that the presumption is almost always against oral argument, all manner of questions, however delicate and however disputed, on the papers.”Fusco v. Fusco, 186 N.J. Super.321, 328 (App. Div. 1982).

Over the years, there have been other subsequent cases echoing Fusco’s frustration in matrimonial matters in which judges have continued their (contra-rules) policies of denying oral argument on motions, i.e., Filippone v. Lee, 304 N.J. Super. 301 (App. Div. 1997) (involving an issue of emancipation of a child resolved by the trial court without oral argument), and Mackowski v. Mackowski, 317 N.J. Super.8 (App. Div. 1998) (change of custody without oral argument). The practice, however, among some judges, still continues.

It is in this context that we now visit the Palombi case. There, the former husband appealed from a series of adverse post-judgment orders – all of which were decided on the papers without oral argument. On one set of motions, the former wife requested a change of custody and the husband cross-moved for reimbursement of certain expenses for the child involved. The court did not allow oral argument on the basis that neither party had provided sufficient evidence on the papers. On another set of motions, the former wife sought to enforce a previous order. Oral argument again was not had, this time on the basis that the wife had not sought oral argument and that her application was unopposed. On the yet another set of motions, the former husband sought to terminate alimony and child support, and the former wife sought an increase in those awards, but both parties failed to file the required Case Information Statement (CIS) which would have shown a more complete financial picture than either of their supporting affidavit had presented. Oral argument, too, was denied because, again, the papers failed to make out a prima facie case, that is, even if everything in the papers were true, the application as presented on the papers alone, without going further, failed to warrant the relief sought.

On appeal, the Appellate Division affirmed the trial court’s dispensing with oral argument in all instances. The reasoning of the reviewing court was: (1) insufficiency of the papers in that (a) procedurally, the papers failed to contain the documentation required by the rules; and (b) which failure, substantively, did not provide enough information for the court to render a proper decision; and (3) oral argument would not provide a platform for the curing of these insufficiency defects. Thus, the court held that merely because the substance of a motion is substantive, oral argument is not mandated in cases in which the papers, on their face, are insufficient procedurally or do not substantively make out a prima facie case.

The decision of the appellate court is fundamentally not wrong. It is, however, unfortunate that the court decided to publish this case, thereby making it part of our body of case law. The universal discussion of matrimonial lawyers on the issue of publication of this case is simply that by doing so, (while technically for the most part correct in its reasoning and result), it brings to the forefront a decision adverse to the push for oral argument in that (even though it should not) will probably give comfort to those judges who routinely deny oral argument on substantive issues. The Appellate Division’s admonition in Palombi that its opinion was not intended to be a “retreat” from prior cases in which motion judges were criticized for not granting oral argument will, unfortunately, it is opined, fall on deaf ears.

The less obvious lesson is clear: the filing of good and sufficient papers on substantive applications will go a long way in obtaining oral argument.

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