Last week, I blogged about the fact that the Supreme Court was going to be hearing argument on the Gnall v. Gnall case on November 12, 2014.  I watched part of the argument streaming on the judiciary website and the rest of it later when it was posted to the site.  For those of you who have not read our prior posts on this case, this is the case where the Appellate Division deemed a 15 year marriage to be “long term” and remanded the matter for consideration of permanent alimony.

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Two things were interesting to me about the argument.  First, it appears as though loose language in both the trial court and appellate division decisions may have unnecessarily given rise to the appellate litigation that followed.  Reading the Appellate Division decision, it would have appeared that the trial court’s statement that this is not a 25-30 year marriage was all that was said.  Yet, reviewing the oral argument, it appears as though the trial judge wrote a lengthy opinion that considered all of the alimony factors.  Additionally, we previously blogged that had the Appellate Division added the words “in this case” to the discussion that 15 years was long term meriting a consideration of permanent alimony, the case likely would not have received the attention it got.  The bottom line is that this might have been much ado about nothing but for some imprecise opinion drafting.

What was most interesting about the argument was Justice Albin’s and Justice Patterson’s questions during the argument of one of the groups that filed an amicus brief.  Specifically, they asked whether it was  problematic that two different judges looking at the same facts could give such completely different results – one said permanent and the other said 11 years.  Justice Albin went on to ask something like, “What doe that project to the public about our ability to apply the rule of law to achieve just results.”

The alimony reformers must have gasped and cheered out loud.  The issue was not one of a judge having the discretion to do justice in a particular case, but rather, that the same case, the very same set of facts, could result in two wildly divergent decisions.  How can the same parties go to courtroom A and get one result and go to courtroom B and get a complete different result on the same set of fact?  This seem to be the cause of some concern by at least these two justices. 

Many of us have been to meetings or seminars where there was a panel of judges who were given the exact same fact pattern and asked to tell how they would rule.  The wide divergence in opinion, much less the lack of uniformity certainly, gives cause for pause.  In fact, Justice Albin asked that given the discretion given to trial judges, couldn’t an Appellate court affirm both an award of permanent alimony and an award of 11 years of alimony in the very same set of facts.  Seemingly, one of these decisions should arguably be an abuse of discretion in that case but likely, both would be affirmed.  There seems to be something unsettling about that.

Whether or not this gives rise to renewed talk about guidelines or whether it was just an interesting intellectual debate remains to be seen.  Until then, the unpredictable application of the law remains an every day possibility.  If litigants are sure of victory and not afraid to try their case, they should think again because you just never know.

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Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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One Response to Is It A Problem That Two Different Judges Can Look At The Same Facts And One Would Say Permanent Alimony And One Would Not?

Eric, “whether or not this gives rise to renewed talk about guidelines or whether it was just an interesting intellectual debate” really shouldn’t be a tough call. It is already adding impetus to the drive to take the steps the legislature omitted in the 2014 “Alimony Reform” bill, and to finally provide guidelines (as does PA, DE, NY, and most other states). Justice Albin’s remarks are being transcribed as we speak. In a letter issued by Gov. Christie when “Alimony Reform Round I” was signed, he indicated that “this piece of legislation is the beginning of much-needed
reform.”

It was indeed “the beginning”, and the enactment of guidelines, which will leave discretion for the unusual case but address the absurdities noted by Justice Albin, are the major focus of the next round.

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