plenary hearing

The New Jersey Judiciary website provides each days published and unpublished Appellate Division decisions.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.…

Continue Reading Three Matrimonial Appeals Decided Today – Three Reversals

We have recently blogged on the requirement that there be oral argument on substantive motions if it is requested.  Another requirement is that court’s should hold plenary hearings (i.e. trials) when there are conflicting certifications regarding a material fact in dispute.  That requirement was made clear again in the unreported (non-precedential) decision in Marquez v. Cabrera released on July 15, 2010. 

In this case, the Property Settlement Agreement provided that the wife got to keep two pieces of real estate owned by the parties, seemingly their largest assets, while the husband remained responsible for some debt associated with the properties.  This does not seem to pass the smell test on its face, a fact not lost on the Appellate Division in its decision.  The husband moved to set aside the agreement, alleging fraud – essentially that a signature page from a different agreement was appended to the one filed with the court on the day of the divorce hearing.  Of course, the wife denied this.  There was some credence on its face to the husband’s arguments given that there were two page sevens of the agreement. 

In any event, the trial court  denied the motion finding the wife more credible.  The problem there is that court are not supposed to make credibility determinations on mere certifications alone.  Rather, as noted above, if there are competing certifications, a plenary hearing must be held.  As such, the matter was reversed for a plenary hearing.  In addition, the Appellate Division held, "because the motion judge made credibility determinations and "may have a commitment to [her] findings," the plenary hearing must be conducted before a different judge." …

Continue Reading Failure to Hold a Plenary Hearing When There Were Conflicting Certifications Regarding Alleged Fraud Was Reversible Error

On June 28, 2010, the Appellate Division released the unreported (non-precedential) opinion in the case of "O.R. v. H.S."  In this case, the Appellate Division reversed the trial court’s Order…

Continue Reading Appellate Division Reverses Award, Without a Plenary Hearing, of Joint Legal Custody, to Someone Guilty of Domestic Violence

Last week, I published a blog post entitled "No Hearing Required for Serial Modification Motions." To view that post, click here.  However, released on February 9th was the unreported decision in the case of Cordero v. Mora with a different result. To view the full text of the case, click here.

This case involves the former Major League baseball player, Will Cordero, who was seeking, once again, to reduce his child support obligation for the child of his first marriage.  He played with the Boston Red Sox, Cleveland Indians, Pittsburgh Pirates, Montreal Expos, Florida Marlins and Washington Nationals in the major league for fourteen years. He made a substantial amount
of money during his career. In some seasons he made as much as $6,000,000.  He now claims to be out of baseball, having last played in the Major Leagues in 2005.  He participated in spring training in 2007 with the Mets in their minor league camp but was cut.

Over the years, Mr. Cordero has filed many application to reduce his support. In 2005 resulted in a reduction of child support from $1300 to $800 weekly. The  following year, he sought and obtained another reduction based on a substantial salary reduction.  from $800 to $500 weekly. On appeal,
he argued he should have received a greater reduction.  In June 2007, that argument was rejected by the Appellate DIvision.  However, just prior thereto, the ex-wife filed an enforcement motion and Mr. Cordero filed another motion seeking a reduction.  The judge granted the motion to enforce the existing order. In addition, the judge ordered him to pay $11,999 in arrears within thirty days and denied his motion for a further reduction. The judge noted that plaintiff provided limited and spotty financial information. Based on the information before the court, the judge concluded that plaintiff had the ability to pay the arrears. He also found that plaintiff produced extremely limited information about his efforts to obtain employment and incomplete information about assets that may generate unearned income or can be liquidated to meet his on-going child support obligation. The judge was particularly concerned that plaintiff had not provided an accounting of the millions of dollars he had earned during his professional baseball career.

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Continue Reading HEARING FOR SERIAL FILER OF SUPPORT MODIFICATION MOTIONS – ANOTHER RESULT

On February 2, 2009, the Appellate Division released a reported (precedential) decision that affirmed a decision of the trial court denying the former husband’s motion for a downward modification of his alimony and child support obligations.  The Appellate Division found that the trial judge properly exercised his discretion particularly when viewed against his findings from a multi-day plenary hearing (trial) that occurred less than one year prior. To see the full text of this case, click here.

The parties were divorced in 2003 and entered a Property Settlement Agreement (PSA) where he agreed to pay $1,000 per week in alimony and $350 per week in child support for the parties’ 3 children.  In addition, based upon the joint accountant’s finding of the five year average of the husband’s income, he agreed that support was based upon $185,000 for him.

In 2005, the husband moved for a reduction in his support obligation claiming a downturn in his law practice.  The plenary hearing on this motion was held over several days in December 2006.  After the hearing, the judge denied the husband’s motion finding that during the time that the husband’s income had supposedly decreased, he obtained a new $58,000 Lexus and bought a home for $785,000 with a $600,000 mortgage.  The judge also found that based upon the evidence at trial and his CIS, that the husband’s income was more in the $140,000 range and not $100,000.  The judge also rejected the husband’s claim that he was indebted to the Internal Revenue Service in the amount of $55,000 because Gregory failed to provide any documentation to
support that assertion.…

Continue Reading No Hearing Required for Serial Modification Motions