Articles Posted in Procedure

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Despite the recent heat wave, Fall has arrived. Besides the presumably cooler weather, when the calendar hits September, we can always look forward to a number of things – school starts, rush hour traffic resumes, shorter days, etc. However, for us lawyers September brings with it the annual amendments that have been approved by our Supreme Court to the Rules Governing the Courts of the State of New Jersey. Unlike last year, a number of these recent Rule Amendments directly impact upon Family Part Practice. A number were in response to statutory changes that recently went into effect. In light of the number involved, I will summarize and discuss these Amendments over the course of several blog posts. Court-Rules-2018-300x300

First, there have been a number of significant changes to Rule 5:3-5, the rule dealing with attorney’s fees, retainer agreements and withdrawal of counsel in Family Actions. Under Rule 4:42-9, an allowance for the awarding of attorneys fees in Family Actions is expressly authorized. Rule 5:3-5 set forth the procedural and substantive prerequisites and requirements for such fee applications, not only referring to the factors enumerated in the Rules of Professional Conduct (RPC 1.5(a)), but the provisions of Rule 4:42-9(b), (c), and (d).  Rule 4:42-9 (b) requires that all applications for the allowance of fees be supported by an affidavit of services addressing the factors in the RPC 1.5. Notwithstanding the fact that reference to this Rule was included already, the Supreme Court felt it prudent to repeat the language of Rule 4:42-9 (b) almost verbatim as new subsection Rule 5:3-5(d), and thereby avoid any doubt that all such applications for the allowance of fees be supported by an affidavit of services. As a result, former subsection (d) became subsection(e), dealing with withdrawal from representation.

In actuality, the most significant amendment to Rule\5:3-5 was the addition of subparagraph (e)(3) dealing with the handling of motions to withdraw from a procedural or scheduling basis. Often a breakdown in the attorney/client relationship occurs during the midst of the divorce litigation. Sometimes this occurs when there are other disputed issues that are being brought before the court by way of motion. The problem which often arose was how these substantive disputes would or could be addressed where a breakdown in one party’s attorney/client relationship had also lead to an application to withdraw or to be relieved being filed.  The new Rule 5:3-5(e)(3) attempts to address this predicament. This Rule provides that upon the filing of a motion or cross motion to be relieved as counsel, the court, absent good cause, shall sever all other relief sought by the motion or cross motion from the motion to be relieved as counsel, and whereby the court would first decide the motion to be relieved and, in the order either granting or denying the motion to be relieved include a scheduling order for the filing of responsive pleadings and the return date for all other relief sought in the motion or cross motion. This is obviously designed to avoid situations where the party and/or counsel are forced to address substantive matters when there has been a apparent breakdown of relationship and/or conflict between a party and his or her attorney at that juncture.

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e3bc10d77963468f2705f7119c049b73-300x199On September 20, 2017 the New Jersey Appellate Division approved a domestic violence case for publication the matter of L.C. v. M.A.J. (A4933-15T2), in which the Appellate Division addressed the use of pre-trial in limine motions, which are pretrial motions commonly used to request the court to make legal determinations about evidence before trial, to seek an eve of trial dismissal of a litigant’s pleadings.

The Plaintiff in this case filed a domestic violence complaint in May, 2016 in which she alleged that the defendant was harassing her by sending communications to her and her employer; the complaint further alleged a history of past domestic violence that included physical abuse and controlling conduct.   At the final hearing, Defendant filed a motion in limine to dismiss that he claimed was based on  Rule 4:6-2(e) for failure to state a claim upon which relief may be granted.   His actual pleadings, did not address whether Plaintiff met the elements for a cause of action but asserted that his communications related to parenting issues, not harassment.   The court granted the motion to dismiss the temporary domestic violence restraining order and heard no testimony.

The Appellate Division reversed.  The Appellate Division condemned the use of in limine motions that are dispositive of or seek to terminate an action on the eve of trial.  Instead, an in limine motion at such a late date should only address preliminary or evidentiary issues, and even then such in limine motions are disfavored and should be heard sparingly.  Defendant’s motion did not ask the court to resolve a preliminary or evidence issue, but a sudden and summary dismissal of Plaintiff’s complaint, which the Appellate Division found improper, especially in a domestic violence matter where an alleged victim’s safety was at issue.   The Appellate Division stated that in rare cases could a domestic violence case be dismissed before trial, and even then, due process required adequate notice to the plaintiff and an opportunity to respond and file his/her own papers, which Plaintiff in this case did not have an opportunity to do with so little notice.   If Defendant felt that he had grounds for dismissal, he should have instead requested an involuntary dismissal at the close of the plaintiff’s case or at the close of all the evidence.

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This week the Honorable Stephen Hansbury, P.J. Ch. published a Superior Court opinion that demonstrates how technology and social media is changing the legal landscape and creating new challenges and solutions.   In the published opinion in KA v. JL, in which Judge Hansbury addressed a cause of action that occurred based on a defendant’s use of social media, whether a New Jersey court can obtain personal jurisdiction over an out of state litigant over his use of social media, and whether pleadings may be served via social media. Continue reading

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Going through a divorce can be time consuming, expensive, and emotionally draining, among many other things. For this reason and more, many people try to rush the process and enter into an file0001849487704-300x225ill advised settlement agreement  on their own in order to obtain a quick divorce and move on with their lives sooner rather than later.  Conversely, other people prefer to stick their heads in the sand and do nothing when their spouse files a divorce complaint, which can lead to the entry of a default judgment of divorce by the court that is contrary to their best interest.  While taking either of these actions may work for some individuals, if such actions result in an unfavorable outcome, it can be costly and possibly difficult to correct, if they can be corrected at all. Continue reading

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On February 1, 2017, the New Jersey Appellate Division published its opinion in the case of New Jersey Division of Child Protection and Permanency v. V.E., A-0586-15T4 — A.3d —- (2017). V.E.file000626018085-300x225 is the mother of R.S. now age nine.  V.E. appealed an administrative finding of the New Jersey Division of Child Protection and Permanency  (“DCPP) that “established” a finding of abuse or neglect without her first being given an evidentiary hearing. The Appellate Division reversed the decision of the trial court to not afford V.E. a plenary hearing “because an established finding is a finding of child abuse or neglect under N.J.S.A. 9:6–8.21(c)(4), subject to disclosure as permitted by N.J.S.A. 9:6–8.11a(b) and other statutes, due process considerations require a party against whom abuse or neglect is established be afforded plenary administrative review. The agency’s denial of an administrative hearing is reversed.” Continue reading

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It is well cited the significant extent that domestic violence is in this State and in this country.  It has alsoOfficer Holding Cell Phone been in the news over the course of the last year or more the danger that police officers and the need for them to protect themselves on the job.  How do we balance the need for officer protection, and the public interest in domestic violence victims, with citizens’ Constitutional rights? Continue reading

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The Presidential election is about a month away, and one of the major issues of this election has been immigration.   Immigration is regulated under federal law, chiefly under the Immigration and

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Nationality Act (INA), enacted by the U.S. Congress in 1952, and the Immigration Reform and Control Act (IRCA), which was passed by the U.S. Congress in 1986 in an effort to curb illegal immigration.   The U.S. Supreme Court has has almost universally overruled any state’s efforts to regulate immigration, not only based upon the Supremacy Clause of the U.S. Constitution, but also to ensure a national standard on immigration rather than various patchwork laws by the individual states.  Family law, however, is an area that falls into the control of the individual state’s authority to legislate and govern. Continue reading

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file000388004075In a prior post, I took a look at the process necessary to seek the dissolution or modification of a Final Restraining Order (FRO), specifically taking into consideration the Carfagno factors that have since been adopted by the Appellate Division as a non-exhaustive list of factors for the Court to consider when one of these applications is made.  In a recent, albeit unpublished, decision, the Appellate Division revisits this issue and takes a closer look at what constitutes a prima facie case of good cause and changed circumstances warranting a plenary hearing on this issue.  That case, B.R. v. J.A., originated in Hudson County and has been reversed and remanded for a plenary hearing by the Appellate Division, without any discussion on the merits of the defendant’s application. Continue reading

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TANGEL 13he jurisdiction of the Family Part of the New Jersey Superior Court to make orders determining custody is based upon the common law doctrine of parens patriae, which imposes upon the court an affirmative duty to protect the best interests of minor children. The members the New Jersey Judiciary that serve our State in making these decisions will tell you that these decisions are some of the most difficult they have faced in their professional careers and also some of the most rewarding. On December 15, 2015, the Supreme Court of New Jersey issued an opinion modifying and affirming the Appellate Division’s decision denying the appeal by the New Jersey Division of Child Protection & Permanency in the case of New Jersey Division of Child Protection & Permanency v. K.N. and K.E., 435 N.J. Super. 16 (App.Div. 2014), wherein the “Division” appealed from a June, 2013 order that awarded custody of T.E. (“Tommy”), the six-year-old son of K.N. (“Kara”) and T.E. (“Kevin”) to his maternal grandmother as a paid resource placement parents. Continue reading

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file0001207444674New Jersey’s removal statute, N.J.S.A. 9:2-4, bars a parent from permanent relocating a child from the State of New Jersey without the other parent’s consent or the permission of the court.   In a previous 2013 blog, my colleague, Daniel Burton, Esq., discussed at length the standard created under our case law when a custodial parent seeks to move out of New Jersey with a child and the noncustodial parent objects. The present leading case on relocation is  Baures v. Lewis, 167 N.J. 91 (2001), in which the New Jersey Supreme Court listed 12 factors for court to consider when deciding applications for a parent to relocate a child from New Jersey. Continue reading