Articles Posted in Rules of Court

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You know the feeling. Like clockwork a favorite relative sends you a birthday card year after year, often days if not weeks before your actual birthday. Then one year your birthday comes and goes and no card was received from that relative. You are filled with feelings of surprise and disappointment. What happened? Did the relative forget? Is the relative upset with me? For whatever the reason, you feel a sense of loss. For those of you who are regular readers of my blog posts, you know that in the Fall of each year, like clockwork, I write a series of posts summarizing recently promulgated amendments to the New Jersey Court Rules that would directly or indirectly impact Family Court matters. Like the expected birthday card that was not received, I am sure you are surprised and disappointed that I have yet to do so. However, like the belated birthday card that arrives weeks later, this blog post is just what you are waiting for. Candidly, however, it is more like getting a card without the expected check inside. Why? Whether due to the COVID pandemic or other reasons, there were an unusually small number of changes or amendments made to the Court Rules for this year, none relating to the Part V Family Part Rules, and few even indirectly impacting Family Court practice. However, there was one new Rule which was adopted, which although procedural in nature, could directly impact how Family Court matters are handled, particularly those unresolved matters for which a trial may be necessary. What you may ask? We finally have a Rule dealing with in limine motions.

I know. I know. You are asking what in the world is an in limine motion, and why does it deserve its own Rule? Over the years, in limine motions have come to resemble the “Wild Wild West” of motion practice. Generally speaking such in limine motions were made on the eve of and/or at the outset of a trial. Often they sought to address various evidence-related issues, such as whether certain evidence should be allowed and/or excluded from consideration during the trial. However, motions labeled as “in limine” were also being filed for the purpose of having a court make a determination on certain substantive matters such as whether a certain claim or issue would be granted or excluded from a case. For example in the Family Court context, a party may make a motion in limine as to whether or not a certain asset should be deemed exempt from equitable distribution in the hopes of “limiting” the issues to be addressed at trial. Often such in limine motions were made within days of, if not on the day of trial itself, leaving the opposing party with nominal opportunity to prepare and respond to same. How such motions were handled were largely left to the discretion of the trial court. While less so in the Family Court context, such in limine motions were being filed, the disposition of which could actually result in the dismissal of a complaint or claim, or of a defense thereto. Ultimately, several court decisions were rendered making clear that one should not be able to disguise what was in effect a “summary judgment” motion as a motion in limine, and that such motions must utilize the timing and notice requirements for summary judgment motions under R.4:46. Unfortunately, notwithstanding these admonitions against the misuse of the in limine motion practice, these abuses continued.

In the case of Seoung Ouk Cho v. Trinitas Regional Medical Center, 443 NJ Super 461 (App. Div. 2015); cert. denied, 224 NJ 529 (2016) the Appellate Division appeared to reach a breaking point when it came to this use and abuse of in limine motion practice and the lack of any rules or guidelines respecting same. In this medical malpractice case, the defendant doctor made a motion “in limine” on the day before jury selection was to begin to dismiss the claims against him. Although initially questioning whether this was a proper “in limine” motion, the trial court ultimately granted that motion. The Appellate Division reversed. In so doing it noted:

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I’ve gotten a lot of questions lately about how the Divorce process works. This blog is intended to outline the procedural steps usually taken in a Divorce Litigation. It is not tied to any particular complexity and as it is generic in nature and since litigation is not always one size fits all it is neither exhaustive nor is it intended to cover all the nuances in more complicated litigation.Person in White Long Sleeve Shirt and Black Pants

1) A litigation usually starts with a letter to the opposing spouse advising them that  A Complaint for Divorce is about to be filed and they should retain a lawyer and have them contact the writer. The hope is that the lawyers will be able to discuss The matter early on and save the litigants time and money.

2) A Complaint for Divorce is filed and either served on the opposing spouse or  More frequently acknowledged by the spouse’s lawyer.

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pexels-sora-shimazaki-5668882-200x300In the Supreme Court decision, Roman Catholic Diocese of Brooklyn v. Cuomo, the limits placed on houses of worship in certain “orange areas” in New York City were struck

down on constitutional grounds based on religious freedom and equal protection.

Fundamentally the Supreme Court found that there was no rational basis that allowed the Governor by Executive Order to treat religious houses of worship differently from nonessential manufacturing facilities, certain classes of categorized “essential services” and pubic transportation. The Court was split 5- 4 with Chief Justice Roberts voting with the minority.

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pexels-ketut-subiyanto-4308054-300x200People are always asking me if they should divorce. My stock answer is that the decision to divorce is personal and that I am not qualified to make that decision for the client or even make a recommendation. Everybody has a different view of what a good marriage should look at and it is not mine to Judge. I do when the reasons for divorce seem like an argument that will blow over or the parties are older ask the client to think about options and give it a week to let things settle down and the realities of Divorce hit home. I am aware that not all marriages are built to last and that happiness like beauty is in the eyes of the beholder. Having said that I do have some views of my own about when a Divorce makes sense and when it does not. I am not a mental health professional. I am a lawyer who has practiced in this field for most of my career after a near-death experience ( from boredom) as a tax lawyer.

Often the decision to Divorce has been made by your spouse and you really have no option but if the choice is yours here are some things to think about. If you are in a destructive relationship and your spouse is physically or mentally abusing you should get out. Abusive people do not change. It is not your fault. If your spouse cheats on you and you will only reconcile if they don’t stop cheating now and forever and you can not live with a spouse who keeps cheating, get a divorce. My experience shows that once a cheater always a cheater.

If your marriage leaves you so unhappy that each day is drudgery or you find yourself wishing you were dead so the marriage can be over get the divorce. There is life on the other side.

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I was recently asked by a high net worth client how they could save legal fees during their proceeding. I understood his concern as the matter is complicated and his wife had very little knowledge of family finances. Accordingly. it would be up to her lawyer to verify assets and advise the client. Half the cost of a divorce is the trial if the matter is not settled. One of the best ways to save money in a divorce proceeding is to avoid the trial and make a reasonable settlement. The other half of the cost of a divorce is pretrial preparation. Most of the pretrial action in a divorce deals with issues of child custody, interim support, and discovery. In this case, since the wife knew nothing about finances until discovery was exchanged, there could be no settlement. There were kids involved and my client was an active parent who wanted to stay involved. His wife opposed this may be out of anger or fear or desire to control the one thing that she did control during the marriage. My client liked bullet points and so I e-mailed him the following bullet points which have been sanitized to protect confidentiality:pexels-karolina-grabowska-4386373-1024x683

1) Put together a series of binders with all your bank and brokerage records over the last five years.

2) Do the same for the last five years of credit card statements.

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Teaching and advancing the knowledge of the Bar and the Bench has always been part of the mission of our firm. In furtherance of that mission with Appellant Judge Hany A. Mawla I will present our annual seminar on recent cases in family law in the Fall of 2021. That seminar features The Yudes Family Law Citator, a compendium of every reported case in Family Law since 1949.

In January of 2021 at the Family Law Sections Annual Hot Tips Seminar I am presenting a paper in my role as a past Chair of the section entitled, Domestic Violence: Social Media & other Cyber-Activity, technology has given rises to a whole new platform of cyber harassment and this paper explores the issue and available legal protections. In February 2021 I am teaching an Advanced Course in property valuation for the Institute of Continued Legal Education, the educational arm of the New Jersey Bar Association, entitled, The Haunting Trinity of Vexing Valuation in High Asset Litigation; 1) active v Passive, 2) The Double Count, 3) Trusts. This seminar will explore; with a panel of distinguished experts in business and real estate valuation theory focusing on cutting-edge issues dealing with asset valuation and exclusion.

In the Supreme Court decision of, Dugan v Dugan, our firm established the standard for valuing professional practice. Since then we have been involved in various reported decisions dealing with various aspects of family litigation. Through our educational outreach, we try to share our view of how Family Law has and should develop.

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Various blogs have been written by members of our firm about situations where a custodial parents IMG_1930-300x225wants to move with the parties’ children to a state other than New Jersey.   Can a custodial parent live wherever he/she wants within the State of New Jersey?  Can a non-custodial parent ask a New Jersey family court just to stop a custodial parent from moving with the children to another town or city within the State of New Jersey?

Certainly some parents have reached an agreement with one another that they will live within a certain proximity to one another where they feel that it is in their own best interest for their children to live in certain areas of New Jersey or for the parents to live within a certain proximity to one another in order for their custody and parenting time agreement to work out.   New Jersey has a public policy of enforcing settlement agreements where they are fair and equitable.

What if parents do not have such an agreement?  Can the non-custodial parent prevent the custodial parent from living anywhere within the state of New Jersey that the custodial parent wants to live? In 2003, the Appellate Division addressed this question in the case of Schulze v. Morris, 361 N.J. Super. 419 (2003).  In this case, the parties had both been living in Middlesex County, New Jersey, but after the custodial parent was denied tenure at her teaching position, she found another teaching job in Sussex County and wanted to move with the parties’ child to Sussex County.  The non-custodial parent filed an Order to Show Cause seeking to stop the custodial parent from moving with the parties’ child to Sussex County.   The Appellate Division concluded that a custodial parent’s request to move to a different place within the State of New Jersey is not a “removal” action pursuant to N.J.S.A. 9:2-2 for which the custodial parent has to obtain the permission of the Court.   However,  the Appellate Division recognized that a custodial parent’s move with a child can have significant impact on the relationship between the child and the non-custodial parent and that there are occasions where an intrastate relocation can constitute a substantial change in circumstance warranting a modification of the custody and parenting time arrangement.   When a noncustodial parent opposes an intrastate relocation of the child(ren) but the custodial parent on the basis that the move will be “deleterious to the relationship between the child and the non-residential custodial parent, or will be otherwise inimical to the child’s best interests”, then the Appellate Division in Schultze directed that the family court had to assess the factors in Baures v. Lewis, 167 N.J. 91 (2001), an interstate relocation case.

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In my last blog post I noted that, effective September 1, 2019, a number of Court Rules directly court-rules-225x300impacting upon Family Part practice had been amended. In this blog post, I will continue this discussion, summarizing some additional court rule amendments, including those which were in response to, or in clarification of, statutory changes which went into effect over the last few years.

Domestic Violence

Rule 5:7A was adopted for the purpose of implementing the provisions of the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 et seq., and provided a procedure by which a victim of domestic violence may obtain both temporary and long-term relief to the extent afforded under the statute. There were six (6) subparagraphs to this Rule, designated (a) through (f). However, as part of the 2019 Amendments, these subparagraphs were reorganized “to better reflect the flow of a case through the court process”. Notwithstanding this reorganization, most of the language of these Rule provisions remained unchanged, except for three (3) specific modifications/clarifications.

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The calendar turning to September signifies different things to different people. For some it signals the court-rules-225x300end of heat and humidity, cooler temperatures and changing leaves. For others, it’s the kids finally going back to school. To still others, it signals the start of the football season, the excitement of baseball pennant races and playoffs, or the opening of basketball or hockey training camps. However, for lawyers such as myself, the holidays come early as each September brings with it special gifts, namely 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, many being in response to, or in clarification of, statutory changes that went into effect over the last few years. I will summarize and discuss these Amendments over the course of several blog posts.

Arbitration

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While not limited to family law matters, at the conclusion of a case a client may often have an outstanding balance due for legal fees in regards to services rendered by the attorney in the a615c5170cfbe42ac3ed71065bce6f12-300x199underlying action. Most of the time payment arrangements end up getting worked out. Sometimes they are not. In those instances most attorneys are reluctant to initiate legal proceedings against their former client to collect the outstanding fees, viewing it as a matter of last resort. However, even before being able to pursue same, an attorney is obligated to advise the client of his/her opportunity to request fee arbitration, a program implemented by the New Jersey Supreme Court as a means to resolve fee disputes between an attorney and client under R.1:20A-1 et. seq. Sometimes clients choose not to proceed with fee arbitration. Other times, a fee arbitration request may be declined as being beyond the jurisdictional limits of the program. In those instances, an attorney may feel he/she is left with no alternative but to file a civil action complaint against his/her former client to collect its outstanding fee.

In certain of these instances, a former client may express dissatisfaction with the legal services rendered by the attorney on their behalf. Perhaps the client is displeased with what he/she views to be an unfavorable result, and blames the lawyer for this outcome. Perhaps the client questions the specific services rendered or fees charged. However, there may be times where the client believes that the attorney did not represent them properly or was somehow negligent, alleges that they sustained some sort of damage or loss, and which they assert gives rise to a claim for legal malpractice.

When must a claim for legal malpractice be brought? If an attorney has already filed a collection action, would this impact how and when such claims must be filed? Are there circumstances where a legal malpractice claim may be barred? In the recent case of Dimitrakopoulos v. Borrus et als 2019 N.J. LEXIS 272, 2019 WL 1065049, the New Jersey Supreme Court attempted to address and clarify these questions, specifically in the context of what is known as the Entire Controversy Doctrine.

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