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Leventhal v. Leventhal

Decided: October 11, 1989.

RICHARD B. LEVENTHAL, PLAINTIFF
v.
ROSALYN LEVENTHAL, DEFENDANT



Krafte, J.s.c.

Krafte

This matter is before the court on a motion requesting the bifurcation of the matrimonial dissolution and custody dispute from the issues of support and equitable distribution. This court finds that there has been no showing of "unusual and extenuating circumstances" which would require affording a preferential treatment to this particular case by granting the husband a divorce prior to a resolution, by trial or otherwise, of alimony and the equitable distribution issues in this considerable marital estate.

The complaint for divorce was filed on February 16, 1987 by the husband, Richard Leventhal. While the parties each sought custody of the two minor children, both teenage girls, ages 16 and 13, have in fact, been living with their father for most of the time since the separation. Mrs. Leventhal is residing in the

marital home and was awarded $2500 a week pendente lite support. All discovery is complete, per court order of March 20, 1989. The parties express no hope of settlement of the economic issues without proceeding to trial.

Because of extreme calendar congestion, this case has not been reached for trial, there being a considerable number of older cases awaiting trial. Plaintiff is now requesting a bifurcation so that he may be granted an uncontested divorce, reserving the trial of the economic issues to a date to be set by the court, or alternatively, to list the case peremptorily.

As of the date oral argument was heard on the motion for bifurcation, this court had 626 dissolution cases on its individual calendar. Without even considering financial plenary hearings, " Holder hearings," true custody and visitation trials, reversals and remands from the Appellate Division, the burden created by the over-crowded calendar is evident. Plaintiff is number 51 of 109 on a special list of cases which have been reached for trial after they were two years or older. Needless to say, all parties placed on that list are also anxious to go to trial, to have their matters resolved, and to bring their lives back to normalcy.

Generally, the rationale behind the use of the procedural device of bifurcation is judicial economy. The decision to bifurcate should be made only after balancing the advantages and disadvantages and determining that there would be a greater benefit to the court with bifurcation than without. 27A C.J.S., Divorce, ยง 209(b). The purpose is not to ensure the absolute necessity of a second proceeding, as would be the case here, but rather reduce the probability of multiple litigation. Thus, in a tort action, bifurcation would be proper. Once the issue of liability is resolved, a trial on damages may not be necessary. The decision whether liability should be bifurcated from the issue of damages is within the sound discretion of the court. R. 4:38-2(b) provides that liability and damage claims may be, in effect, bifurcated, "whenever the court finds that a

substantial savings of time would result from trial on the issue of liability in the first instance. . . ." If this language were somehow deemed to apply to a divorce case, the court would be compelled to find that initially trying the dissolution (liability) aspect would probably afford the referred to time-savings by eliminating or substantially reducing time needed for the financial (damages) issues. Pressler, Current N.J. Court Rules, Comment R. 4:38-2(b) (1989); Ventura v. Ford Motor Corp., 180 N.J. Super. 45, 433 A.2d 801 (App.Div.1981); Cotton v. Travaline, 179 N.J. Super. 362, 432 A.2d 122 (App.Div.1981); Radigan v. Innisbrook Resort and Golf Club, 150 N.J. Super. 427, 375 A.2d 1229 (App.Div.1977). However, in a matrimonial action, as the one presently before the court, where the economic issues are vast and complicated, a trial on the dissolution, no matter how short, will do absolutely nothing to simplify or reduce the prospect of further proceedings. Plaintiff alleges that there is no possibility of a settlement, so the effect of trying the issues separately would only serve to prolong and exacerbate this litigation. The bifurcation would have no benefit to the already over-burdened court calendar. Its sole effect would be to personally benefit plaintiff in his desire to remarry without addressing his responsibility to reach a final disposition of all other issues involved.

The State of New Jersey has no specific provision, either by statute or court rule, for bifurcation, where a judge may grant a divorce and defer consideration of the other issues in a matrimonial case. The Supreme Court Committee on Matrimonial Litigation, Interim Report (July 20, 1979) set forth its policy on bifurcation. The report noted the existing controversy regarding the procedure and the delays inherent in its use. The committee's recommendations encouraged a court rule or directive on bifurcation, but in its absence stated that bifurcation be granted "only in unusual and extenuating circumstances," and then only with the approval of the assignment judge. Id. at 24. The actual decision as to the merits of bifurcation of

this case has been deferred to this trial court by the ...


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