Some people think there are no winners in divorce court. While I like to have a more optimistic outlook, it goes without saying that family law cases sometimes yield unhappy litigants.   With emotions running high and issues so personal in nature, it is common to have one, or both, parties unhappy with a decision of the court. So what do you do when you’re on the receiving end of an unfavorable court order? A recent Appellate Division case reminds us that, when looking for a second bite at the apple, procedural errors made by the lower court can be just as important as substantive ones.

In the recent unpublished decision of J.H. v. K.H., the defendant was dissatisfied with a trial court’s order, so he filed a motion to vacate that order and, when that was unsuccessful, he filed an appeal. This case involved post-divorce issues related to interpretation of the parties’ property settlement agreement (PSA) and issues regarding child support.

At the time of divorce in 2016, the parties executed a two-page PSA, without the assistance of attorneys. It provided, in part, that defendant would pay child support to plaintiff and he would give plaintiff the former marital home “free and clear” by September 2021. When defendant failed to meet his child support obligations, plaintiff filed a motion in 2017 to enforce her rights under the agreement, as defendant’s failure to pay support allegedly resulted in her inability to pay the mortgage on the former marital home.

Defendant contended that he was never served with a copy of the motion papers and only learned of the pending motion by calling probation to inquire about his support arrears. When he appeared in court on the return date of the motion, he was “advised to leave” by court staff because he had filed no papers and the matter was being decided as unopposed.

The resulting order found defendant in violation of litigant’s rights for failure to pay child support and “regarding” the former marital home. The statement of reasons provided with that order cited to the PSA to provide that “defendant shall satisfy his child support obligations” and “bring his mortgage payments current,” with no reference made whatsoever as to the proper service of motion papers on defendant or his ability to meaningfully respond.

When defendant filed a motion to vacate that order, he certified that he never received the motion papers, while plaintiff certified to the contrary. Defendant further requested a finding (or alternatively, a plenary hearing) as to interpretation of the two-page PSA, as he contended it was the parties’ intention to afford plaintiff a five year window to refinance the former marital home and that he was not responsible for mortgage payments in the interim. The trial court denied oral argument on this motion and summarily denied defendant’s request, in part finding that defendant was obligated to “give” plaintiff the property by September 2021 pursuant to the PSA and that he shall therefore “deliver the property” to her by that date. The trial court further found this provision of the PSA to be “unambiguous.”

On appeal, the Appellate Division found several procedural errors below:

Deficient Statement of Reasons: The trial court erred by failing to make requisite findings pursuant to R. 1:7-4(a). The appellate court held that meaningful appellate review is inhibited unless the judge who sat below sets forth the reasons for his or her opinion. The appellate court determined that the trial judge made insufficient findings and conclusions of law. The statement of reasons issued with the first trial court order was deemed conclusory in nature. The court found this to be especially problematic where the motion was decided on the papers.

Failure to Grant Oral Argument: The trial court erred in denying oral argument on the motion pursuant to R. 5:5-4(a).  The appellate court found that there is a strong presumption in favoring argument of motions other than calendar and routine discovery matters. This error was particularly egregious considering the conflicting certifications of the parties filed in connection with the motion to vacate.

Service of Process Issues: Though not expressly stated in the decision, the appellate court seemed troubled by the lack of probing inquiry made by the trial court into the allegedly deficient service of process of the original motion on defendant. Further, the appellate court chastised the lower court for not curing this procedural deficiency by affording defendant the opportunity to present his “potential, meritorious defenses” in the first motion.  In theory, this could have been accomplished either by granting oral argument or permitting an out of time submission.

Relying on these procedural issues, in part, the Appellate Division reversed the trial court’s determinations and remanded for a plenary hearing regarding the parties’ intention as to their PSA.

While in this case, the appellate court found both procedural and substantive issues with the lower court’s decision, it shows how fatal procedural errors can be, regardless of substance. If you are dissatisfied with a court ruling, in addition to analyzing the merits of the ruling, don’t forget to look at how the court came to that decision, as a procedural error may be the key to undoing the  decision the court has made and getting the opportunity to make the court take a second look at your substantive issues.



Katherine A. Nunziata, Associate, Fox Rothschild LLPKatherine A. Nunziata is an associate in the firm’s Family Law practice, based in the Morristown, NJ office. You can reach Katherine at (973-548-3324) or at