It seems that moving parties are more often trying to overcome the defects of their motions by arguing that a plenary hearing should be held due to unresolved questions of fact or issues of credibility. In other words, the litigant asks the court to hold a trial at some point in the future because the party asserts that the court cannot properly resolve the party’s motion simply by reviewing the disputing positions of the respective parties set forth on paper.
While the case law indicates that a court cannot resolve issues of credibility or disputed facts without a trial, involving testimony, properly submitted evidence and the like, litigants often try to use such case law as a crutch to get past the fact that their motion should be denied on its face. What often happens, as a result, is that a court will err on the side of caution in the realm of judicial discretion and grant the hearing. The collateral damage is the incurrence of additional counsel fees, and substantial time before the motion is actually decided, thereby leaving the parties in limbo. While hearings are often necessary to resolve legitimate issues, the question is whether the issue is always legitimate.
For the financially superior moving party, this may be exactly what he or she wants, as convincing a court to grant a future hearing can be an effective tactic to pressure the financially inferior party to settle. While that party can seek counsel fees from the court to help take them through the litigation against the other party on an even playing field, there is no certainty that such fees will be granted.
I recently experienced such a scenario where my client had not been paid alimony in quite some time. She was afraid to file a motion, knowing that her former spouse would come after her with "guns blazing." Finally, on the verge of financial destitution, she filed a motion to enforce the property settlement agreement compelling the husband to pay. In response, the husband claimed that the parties had verbally agreed at some point in the past to terminate alimony. There was no proof in support of his assertion other than his own words that there was such an agreement. My client denied the existence of the agreement.
It was because of this disputed issue of fact, where the parties’ respective certifications stood toe-to-toe with each other, that the court granted a plenary hearing to determine, through the taking of testimony and review of evidence, whether there was a prior agreement to terminate alimony. The court did afford some interim financial relief, however, recognizing the financial situation faced by my client.
The judge’s decision was completely reasonable and understandable – how else was the court to resolve the issue of whether there was an agreement without holding a trial to make that determination? In fact, I have been on the opposite side of the very same sort of motion, advocating for the existence of a prior verbal agreement to terminate alimony, which the parties lived by for several years as an implied acknowledgment of same. Ultimately, however, this is a problem that can plague each and every motion. Whenever a spouse or former spouse seeks to enforce the terms of the settlement agreement, the other party can respond that there was a verbal agreement not to abide by such language, with the hopes of getting a plenary hearing.
Many settlement agreements contain language that the agreement itself may not be modified unless the change is made in writing, and entered through formal measures. Even this language, however, is not bulletproof, as a verbal agreement may, in fact, have been made, and the parties, as I reference in the last paragraph, may have lived by it for several years, thereby creating a strong argument for the opposing party. Notwithstanding, there does arise an issue with the case law calling for a plenary hearing in the face of competing certifications.
I encountered another example recently where a father sought a reduction of his child support. Every single document submitted on his behalf suggested that his financial situation had, if not improved, at least remained steady. His certification, however, told a very different story, claiming the "gloom and doom" of his financial situation. Not surprisingly, my client disputed his claims, pointing in large part to the black and white numbers in the exhibits attached to dad’s certification.
Perhaps realizing the fatal defects of his application, dad’s response was to the effect of, "mom’s story is at odds with mine and, as a result, this court should hold a plenary hearing to find out the truth." During oral argument, dad told the same story, to which we responded that numbers on a page are not "bells and whistles," or the subject of competing certifications. Rather, it is simple fact, as it was clear that dad was simply seeking that plenary hearing with the hope of being able to pressure our client into an inequitable settlement since she could not afford a discovery period and trial.
When up against such a situation, it is important that you, as the litigant, point out that the situation is not a matter of competing certifications and credibility, but that the numbers at issue tell the true story. It is also important to convey to the court that almost every case involves certifications at odds with each other, and that it should take more than simple "pen to paper", with no supporting evidence, to take up the court’s time with a time consuming and expensive trial.
The court calendars are experiencing enough backlog that there needs to be some sort of "gatekeeper" standard to ensure to prevent this sort of litigation. Where there is a legitimate dispute of fact and credibility, then a hearing should certainly be granted so that testimony can allow the court to reach the truth of the matter. Unfortunately, as with my prior post regarding motions for reconsideration, this is not always the case.
Robert Epstein is an associate in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or firstname.lastname@example.org.