The calendar turning to September signifies different things to different people. For some it signals the end 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.
In 2015, the Rules of Court were amended to establish procedures and guidelines (Rule 5:1-5) governing those family law matters which parties agreed to submit to arbitration, including creation of an “arbitration track” (Rule 5:1-4(a)(5)) for those who choose arbitration to resolve issues related to their divorce proceedings rather than continuing to pursue litigation in the court. In doing so, the Supreme Court was furthering the policy that evolved in recent years, encouraging the use of complementary or alternative dispute resolution proceedings as a means to help parties settle cases and/or divert cases from a growingly overburdened judicial system. The Court essentially codified aspects of its 2009 decision in Fawzy v. Fawzy, 199 N.J. 456(2009), including allowing for the arbitration of child-related issues such as child support and child custody, subject to certain rules, procedures and considerations being in place to assure that the children’s rights and best interests were protected and served. Rule 5:1-5 provided for the arbitration of disputes between and among parties to any proceeding heard in the Family Part except (a) the entry of the Final Judgment of Annulment or Divorce; (b) actions involving the Division of Child Protection and Permanency; (c) domestic violence actions; (d) juvenile delinquency actions; (e) family crisis actions, and (f) adoption actions, all of which may not be arbitrated.
To pursue arbitration the parties must enter into either an Agreement to Arbitrate or a Consent Order to Arbitrate. In Fawzy, the Court was concerned that the parties be fully informed of the process and procedures involved with arbitration. Hence, the court rule required that the Agreement or Consent Order to Arbitrate state that the parties understood their entitlement to a traditional adjudication of their dispute and their willingness to waive that right, that the parties were aware of the limited circumstances under which a challenge to the award may be advanced and their agreement to those limitations, that the parties had sufficient time to consider the implications of their decision to arbitrate, and that they entered into same freely and voluntarily after due consideration of the consequences. Rule 5:1-5 also required the parties to review and execute an “Arbitration Questionnaire” in the form as set forth in Appendix XXIX-A to the Rules which detailed a similar set of affirmations, and which was also to be attached to the Arbitration Agreement or Consent Order to be filed with the court. Rule 5:1-5 also included reference to a form entitled “Arbitrator/Umpire Disclosure”as set forth in Appendix XXIX-D to the Rules in which the proposed arbitrator/umpire was to disclose the extent of any past or present relationships with the parties, their counsel or potential witnesses, direct or indirect, whether financial, professional, social, or of any other kind, and so as to assure the parties’ complete confidence in his/her impartiality.
However, there was nothing in the Rule indicating the use of this disclosure form was required. The recent amendments to both Rule 5:1-5 as well as Rule 5:1-4 make clear that use of both the “Arbitration Questionnaire” as well as the “Arbitrator/Umpire Disclosure” forms signed by the parties and/or the arbitrator/umpire are mandatory, and that these forms must be attached to any Arbitration Agreement or Consent Order to be filed with the court, and which are prerequisites for the matter’s assignment to the to the Arbitration Track.
Rule 5:5-4 deals with motions in Family Actions. First of all, Rule 5:5-4(a) has been substantially amended. Not only has it been re-organized into five (5) separate sub-paragraphs, but new language was added to clarify which attachments were required depending upon the nature of the motion relief sought in order to conform the Rule to the provisions of the 2014 amendments to the alimony statute, specifically N.J.S.A. 2A:34-23(j)(2) and (j) (3), with regard to applications to modify or terminate alimony based on retirement. The previous version of Rule 5:5-4(a) provided that when a motion was filed for enforcement or modification of a prior order or judgment, a copy of the order or judgment sought to be enforced or modified must be appended to the pleadings filed in support of the motion. This is largely unchanged with the recent amendment, except that the rule is now designated as Rule 5:5-4(a)(3) and adding the word “terminated” to the possible relief sought.
Prior Rule 5:5-4(a) also provided that when a motion or cross-motion was filed to establish alimony or child support, the pleadings filed in support of or in opposition to the motion, were to include a copy of a current Case Information Statement. Again, this aspect of the Rule has remained the same, except for now being designated as Rule 5:5-4(a)(2). However, it is the language of that portion of prior Rule 5:5-4(a) which dealt with motions to modify an obligation for alimony or child support which have been substantially amended at this juncture. The prior Rule did not differentiate the basis upon which modification was sought other than the catch-all of “changed circumstances”. It required the moving party to append copies of both his/her current and previously executed Case Information Statements and provided that only if the court concluded either that the moving party had demonstrated a prima facie showing of changed circumstances or there was other good cause, that the opposing party would be ordered to file a current Case Information Statement.
Under what is now designated as Rule 5:5-4(a)(4), the same attachments would still be required to applications seeking to modify or terminate alimony and child support – other than those applications based upon retirement filed pursuant to N.J.S.A. 2A:34-23(j)(2) and (j)(3).
N.J.S.A. 2A:34-23(j)(2) addresses applications to modify or terminate alimony made by an obligor who seeks to retire prior to attaining “full retirement age” which, as defined under the statute, means the age at which a person is eligible to receive full retirement for full retirement benefits under Section 216 of the Federal Social Security Act. N.J.S.A. 2A:34-23(j)(3) addresses retirement applications filed in a case in which there was an existing final alimony order or enforceable written agreement which had been established prior to the effective date of the statute where the obligor had reached full retirement age as defined therein.
In each instance, the statute required both the obligor’s application for modification or termination of alimony as well as the obligee’s response thereto to be accompanied by a current Case Information Statement or other relevant documents as required by the Rules of Court, as well as the Case Information Statements or other documents from the date of entry of the original alimony award and from the date of any subsequent modification. As a result Rule 5:5-4(a)(5) was added so as to conform to these statutory requirements. As such, both the obligor’s application to the court for modification and termination of alimony and the obligee’s response to same, must be accompanied by current Case Information Statements as well as the Case Information Statements previously executed or filed, or other relevant financial documents if there was no Case Information Statements executed or filed, in connection with the order, judgment or agreement sought to be modified.
This Rule also includes a new provision providing that in the event the previous Case Information Statements cannot be obtained after diligent effort was made to locate them or Case Information Statements were never prepared, a certification must be submitted detailing said diligent efforts or the non-existence of said documents.
Perhaps the most impactful amendment to the Family Part Rules was the subtle, yet significant, change to Rule 5:5-4(b) pertaining to the page limits of motions. Under the prior Rule, all certifications in support of a motion were not to exceed a total of 15 pages, all certifications in opposition to a motion or in support of a cross motion or both were not to exceed a total of 25 pages, and all reply certifications to those opposing pleadings were not to exceed a total of 10 pages. As a practical matter, meeting these page limits was often problematic, particularly for the initial moving party. Depending upon the history or circumstances of the case or of the relief sought, it was often difficult to set forth the basis for the motion in only 15 pages. On other occasions, a relatively simple or limited motion addressed in 5 pages may have been responded to with a complex cross motion using all 25 pages allotted, the reply to which would then be limited to only ten pages – often a difficult if not impossible task. In an obvious attempt to address these sorts of situations, Rule 5:5-4(b) has now been amended to provide that all certifications in support of a motion should not exceed a total of 25 pages, which 25 page limit may be allocated between the initial certification(s) and reply certification(s) as the movant deems appropriate. However, all certifications in opposition to a motion or in support of a cross motion continue to operate under the 25 page limit. While it may have been the intent all along, this Rule change makes clear that both parties to a motion have up to 25 pages each to set forth their respective positions, and now affords the initial moving party the flexibility to allocate those pages to best do so.
Rule 5:10 et seq. deals with adoption proceedings. Under Rule 5:10-4(b)(3), after a complaint for adoption is filed, and the court fixes a day for a preliminary or final hearing to be conducted, the Surrogate is required to append to the court’s order fixing that hearing date a form promulgated by the Administrative Director of the Courts informing the child’s parents of the procedure to object to the adoption, the right to legal counsel and how to apply for a court-appointed attorney, as well as requiring the plaintiff to serve the signed order, form and notice upon said parents. However, in apparent recognition of the unique set of circumstances found in stepparent and private placement adoptions, this Rule has been amended so that in these types of adoptions only those parents of the child “whose parental rights are subject to a termination proceeding” are to be given the aforementioned notice, and that service of the form on the child’s parent whose rights were not being terminated was not required. The language contained in Rule 5:10-5(a)(4) was correspondingly amended so as to make clear that in regards to private stepparent adoptions and direct private placement adoptions the “Notice of Rights in an Adoption Proceeding” form promulgated by the Administrative Director of the Courts, and filed with the court 10 business days before a preliminary hearing, is to be served only on parents whose parental rights were subject to a termination proceeding. Why this distinction? Obviously in a stepparent adoption, it is only one of the child’s parents whose parental rights are sought to be terminated, and in private placement adoptions there has often already been a voluntary surrender or relinquishment of parental rights by one or both of the child’s biological parents. Hence the limitation upon which parents of the child such service or notice would be required.
I will address another set of Family Part Rule Amendments in my next blog post. Stay tuned.