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
I recently read a quote from Joseph Addison, an eighteenth century British author, which said, “Husband a lie, and trump it up in some extraordinary emergency.” It lead me to consider how family law attorneys categorize the notion of an emergency, often with a mixture of histrionics and hysteria, in contrast with how the rest of the world does.
In the world of family law, emergencies are governed almost exclusively by the filing of the well-conceived and ill-named Order to Show Cause. R. 4:52-1 of the New Jersey Court Rules governs the filing of an Order to Show Cause in most scenarios in Family Court, when we are seeking temporary restraints or injunctive relief. It addresses the standard for filing an emergent application, which we all know by heart by now is, that immediate and irreparable damage will probably result to a party or the parties’ child(ren), unless an Order is entered immediately.
As a former law clerk and current family law practitioner, I have a unique perspective on both the utilization and exploitation of the Order to Show Cause. What was designed to ideally be filed judiciously and to address genuine emergencies is habitually used as a litigation tool to get our clients the instant gratification that they far too often seek. Fittingly enough, these applications filed to presumably accelerate a divorce proceeding often become the ultimate double-edged sword.
Continue Reading A Day That Will Live In Exigency: The (Over) Use Of the Order to Show Cause
We have blogged before on the increasing trend by trial courts to deny litigant’s an opportunity to engage in oral argument in motion practice. Rule 5:5-4 of the New Jersey Rules of Court provides that "the court shall ordinarily grant requests for oral argument on substantive and non-routine discovery motions . . . ." Considering…
The New Jersey Judiciary website provides each days published and unpublished Appellate Division decisions. If you read this blog with any frequency, you know that we often write about the decisions that are released. Today there were three decisions from post-judgment divorce cases. We will likely blog in more detail about some or all of them in the future. What is interesting is that despite the fact that historically, appeals succeed only approximately 20% of the time, there were reversals in all three cases.
In one, alimony was modified and permanent alimony was awarded without the court holding a plenary hearing (i.e. trial) on the contested issues.
In another, the trial judge modified child support, multiplying the old child support amount by the percentage increase in the plaintiff’s income. The Appellate Division held that a simple mathematical calculation does not comply with the mandates of the statute and case law. They further held that while the percentage increase is an important factor in determining the support obligation, it is not exclusive and does not relieve the trial judge of performing the required analysis
prescribed by the statute and case law.
In the third, there were conflicting certifications regarding a husband’s application to reduce support and the wife’s cross application for enforcement. Not only was there no plenary hearing ordered despite conflicting certifications, there was not even oral argument on the motion allowed despite both parties requests for same.
As a post-script to the blog article of earlier this week, What! No Oral Argument?, a recent unreported case makes the point. In the blog, the Palombi case was addressed. In that case, on review by the Appellate Division of a series of post-judgment orders in which the trial judge declined to grant oral argument…
One issue that has frequently arisen within recent months is what happens when a party is denied oral argument on a motion. In fact, we have blogged about it numerous times. Those prior entries can be found by clicking here and here. While the New Jersey Court Rules, 5:5-4 in particular, states that courts…
We have previously blogged on the issues of counsel fee awards and a trial court’s decision to grant or deny a party’s request for oral argument on a pending motion. Two of these prior postings can be found here and here. Both of these issues framed the Appellate Division’s recent unpublished opinion in Bove v. Bove, found here.
The parties at issue were divorced on June 28, 2001 and three children were born of the marriage (two adult sons and a 16-year old daughter). A supplemental Judgment of Divorce established that the Wife would have sole physical custody and the parties would share joint legal custody. Additionally, the Husband was required to create trust funds for the children’s college expenses and to be responsible for 80% of the daughter’s college tuition.
The Wife sought to enroll the daughter in a private high school, informing the Husband that she could not pay for any part of private school tuition, that she was taking the daughter to open houses and that she asked for the Husband’s "thoughts on the matter." The Husband responded in a letter that he would not contribute to tuition prior to college and was displeased that the issue was broached with their daughter before him. Nevertheless the Wife moved forward with the process and, when the Husband sought to have the Wife confirm in writing that she would not seek contribution from him for high school tuition, she refused. The Wife also contended that the Husband was using the college trust funds for non-college expenses, as defined by the supplemental JOD, and the Husband contended that the Wife ignored, and then hedged, on his timely requests for vacation with the children.
It used to be that unless a motion had to do with discovery or was a motion for reconsideration, requests for oral arguments of motions were typically granted, without exception. In fact, if a discovery motion was complex, many judges would grant oral argument. The same is true about motions for reconsideration.
There has been a…