Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

When May Oral Argument Of A Motion Be Denied By The Family Part Of The Superior Court Of New Jersey?

The attorneys at my law firm file motions in the numerous types of cases that full under New Jersey family law, including but not limited to, divorce, child custody, child support and even restraining order hearings.  Your lawyer files some motions during the case while others are filed after the case has been concluded.  In any event, family law in New Jersey means intensive motion practice, virtually every Friday depending upon the county in our state.  

Now certain motions, especially the more complex ones, require oral argument on the part of your lawyer.  However, other motions that are straightforward are heard “on the papers.”  This means just what is sounds like; the Court decides on the papers submitted but neither you nor your lawyer are required to appear in a New Jersey Family Court when the motion is handled.  Below, please find a recent decision on a child support case that explains under what circumstances oral argument of a motion may be denied.

In Palombi v. Palombi, former husband and former wife filed numerous post-judgment motions including but not limited to custody, child support, college expenses, emancipation, and alimony. The motions were decided by the Superior Court of New Jersey, Family Part, Morris County, and the husband’s motion for reconsideration, without allowing oral argument to be heard under Rule 5:5-4. On appeal Michael, the husband, argued that the motion was wrong in deciding six post-judgement motions that concerned substantive issues without oral argument. Oral argument is required “when significant substantive issues are raised and argument is requested.” The denial or oral argument when a motion has properly stated a substantive issue to the court “deprives litigants of an opportunity to present their case fully to the court. However, even if the case deals with “substantive” issues, Rule 5:5-4(a) is designed to give the judge the option of foregoing oral argument when no evidence beyond the motion papers and the factual record is necessary to a decision. Oral argument in such a circumstance would be clearly unnecessary when there is no factual dispute between the parties. 

The New Jersey Appellate Division reviewed the circumstances of each motion. Motions that seek a modification of financial obligations without providing a current and prior case information pursuant to Rule 5:5-4(a), and motions for reconsiderations that fail to explicitly identify the matters or controlling decisions that show that the court acted in an arbitrary, capricious or unreasonable manner are deficient on their face. These deficiencies were evidentiary in nature thus they could not be cured at oral argument. Therefore, while the motions did raise substantive issues, they failed to present “substantive” issues to the court for determination, and so oral argument would have been unproductive and unnecessary. The motion judge acted within his discretion to deny oral argument. 

According to Rule 5:5-4(a), court should generally grant requests for oral argument on “substantive” motions. However, whether a trial court has properly exercised or abused its discretion in denying oral argument does not turn solely on the subject matter of the motion. 

Michael and Susan Palombi were married in May 1997. They had one child together, named Carly, born in 1089, and Michael adopted Susan’s two children from a prior relationship. In July 2005 Michael filed for divorce and Susan filed counter-claim. A three-day trial was held in December 2006, and a dual judgment of divorce was entered with a written opinion deciding all issues in April 2007. The court stated in the decision that custody of Carly was not an issue because she was eighteen years old. Regardless, the court found that she was not emancipated and required Susan to pay child support because she was still a high school senior and resided with her father. The judgment of divorce also required Michael to pay alimony to Susan. In January 2009, Michael appealed various post-judgment orders entered in this case from May through November 2008. Oral argument was denied on all the motions. Michael appealed the orders.

On appeal Michael argued that the failure of the court to hear oral argument or conduct a hearing involving issues of emancipation, child support, college expenses and alimony was an abuse of discretion because significant and opposing substantive and factual issues were raised by the parties. He further maintained that the failure to grant oral argument violated the provisions of Rule 5:5-4(a), and the Family Part court abused its discretion by not ordering a plenary hearing in light of the significant disputed issues between the parties.

The New Jersey Appellate Division reviewed the record and found that none of Michael’s arguments had merit. The appellate panel stated that a review of the trial court’s detailed written statements of reasons for each order in this case showed that the Family Part court carefully considered each issue that was argued. Rule 5:5-4 states that the court will generally grant requests for oral argument on substantive and non-routine discovery motions and ordinarily deny requests for oral argument on calendar and routine discovery motions. In the 1998 case of Mackowski v. Mackowski, the New Jersey Appellate Division interpreted this rule to basically mean that oral argument is required “when significant substantive issues are raised and argument is requested.” The denial or oral argument when a motion has properly stated a substantive issue to the court “deprives litigants of an opportunity to present their case fully to the court. While the New Jersey Appellate Division stated that they still hold to this rule, the rule still permits a trial court to exercise its discretion and authority to deny such requests, even if the case deals with “substantive” issues. Rule 5:5-4(a) is designed to give the judge the option of foregoing oral argument when no evidence beyond the motion papers and the factual record is necessary to a decision. The sole purpose of these rules is to avoid unnecessary or unproductive. Oral argument in such a circumstance would be clearly unnecessary when there is no factual dispute between the parties.

 Advocacy does not become necessary or productive simply because the parties disagree about the facts. The inquiry does not end because the nature of an issue might be substantive or the parties disagree about the facts. Other factors such as the sufficiency of the supporting facts alleged are also of relevance to the exercise of discretion. This is especially with motions that seek a modification of financial obligations or reconsideration of a prior order because the moving party must satisfy certain requirements before these motions are ready for decision by the court. If the record submitted to the court in support of a motion is deficient and does not satisfy such requirements, oral argument does not give litigants an opportunity to such evidentiary deficiencies. 

The New Jersey Appellate Division reviewed the issues presented and circumstances in each of the motions and found that the trial court did not abuse its discretion in deciding the motions without oral argument. The motions here did not all involve genuine “substantive” issues. In fact there were no motions that actually called for the court to make a decision on either custody or emancipation. The trial court ruled that custody was not an issue at the time of divorce because Carly was already eighteen years old. The court also ruled at that time that Carly was not emancipated because she was a high school senior, and no motion was ever filed that explicitly sought a declaration to the contrary. Furthermore, cross-motion decided by the May 30 order failed to raise “substantive” issues because it was about reimbursement of expenses that were not properly documented. 

The first time that the motion judge denied oral argument in a motion filed by Michael that actually dealt with a “substantive” issue was the August 21 order. This order dismissed Michael’s motion to terminate alimony based on changed circumstances and Susan’s cross-motion for increases in alimony and child support. Both of these motions were subject to the mandatory requirements of Rule 5:5null-4(a). Neither Michael nor Susan, however, submitted any case information statement. Thus neither party presented a sufficient factual basis for the court to assess essential facts necessary to a determination of the issues presented. Therefore, oral argument would not have filled in the holes in these motions because facts that are not of record, or judicially noticeable, which are presented through oral argument are not considered facts. The denial of oral argument was an appropriate exercise of the trial courts authority. 

If you need your rights enforced in a New Jersey family law matters, please feel free to contact my office today.