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Lilieholm v. Lilieholm


October 21, 2008


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, FM-14-1447-06.

Per curiam.


Argued October 2, 2008

Before Judges Stern and Waugh.

Defendant George C. Lilieholm appeals three post-judgment orders denying his motions concerning parenting time and the sale of the former marital residence. Despite the requirements of Rule 5:5-4(a), the motion judge decided the motions without oral argument. We vacate portions of the orders under appeal and remand for oral argument.

The parties were married in 1992. They have three children, born in 1992, 1994, and 1998. Plaintiff Kathleen M. Lilieholm filed a complaint for divorce on June 1, 2006, shortly after she had obtained a temporary domestic violence restraining order. She obtained a final restraining order later in June 2006.

After considerable motion practice, primarily concerning support and parenting time, the parties entered into a property settlement agreement (PSA) on April 16, 2007. The PSA was incorporated into their judgment of divorce on the same day.

The PSA provided for joint legal custody of the children, with the former wife being the parent of primary residence. The former husband was to have unsupervised parenting time with the children every other weekend, with dinner on the Wednesday evening of the off week. Pending the former husband's satisfactory demonstration of "abstinence" from the use of "CDS" through random drug testing for a period of six months, he was not permitted overnight parenting time. The PSA also provided that the parties would "utilize the services of a Court mediator or parenting time coordinator prior to filing any court proceedings" in the event of disagreements over parenting time.

As part of equitable distribution, the PSA called for the sale of the former marital residence. Pending such sale, the former wife and the children would continue to reside there. Once the residence is sold, the proceeds are to be split evenly between the parties, subject to certain adjustments in favor of the former wife. The sale of the marital residence will trigger a reduction in the former husband's support obligation.

The PSA contained the following provisions with respect to the listing and sale price of the former marital residence:

The parties shall list the home at the price recommended by the realtor and shall accept a reasonable price as recommended by the realtor. The parties shall also agree to lower the asking price on the home in accordance with the realtor's recommendation.

On September 10, 2007, the former husband filed a motion seeking the following relief: (1) enforcement of his right to parenting time; (2) direction to the former wife not to use the parties' daughter as a messenger; (3) reduction in the listing price of the marital residence; and (4) reduction in support because of the delay in selling the marital residence. On September 27, 2007, the former wife filed a cross-motion seeking, in addition to denial of the former husband's motion, the following relief: (1) referral of the parenting issues to mediation; (2) disclosure of the identity of the former husband's roommate; (3) proof that the former husband was complying with his drug-screening obligation; and (4) enforcement of certain financial provisions in the PSA.

Although both parties requested oral argument, the motion judge decided both motions on the papers. He entered two orders on November 19, 2007, one on each motion, attaching a statement of reasons for each. He explained his refusal to hold oral argument as follows:

No oral argument was granted because the issues were readily resolved by reference to the parties' P.S.A. or the submissions of the parties. R. 5:5-4(a). Moreover, significant substantive issues were not raised. Mackowski v. Mackowski, 317 N.J.

Super. 8, 14 (App. Div. 199[8]).

By way of substantive relief, the motion judge made the following rulings: (1) the parenting-time issues were referred to a parenting-time coordinator; (2) the parties were both instructed not to use their children to convey messages to each other; (3) the application to reduce the listing price of the marital residence was denied; (4) the application to reduce the former husband's support obligation was denied; (5) the former husband was required to provide proof that he was complying with his drug-screening obligation; (6) the former husband was required to disclose the identity of his roommate; and (7) the former wife's applications with respect to the remaining financial issues were denied as being beyond the scope of the initial motion. See R. 1:6-3(b).

The motion judge entered an amended order on November 26, 2007. Apparently having realized that there was a domestic violence restraining order in effect, he vacated the requirement that the parties engage in parenting-time mediation. However, he did not address the substance of the unresolved parenting-time issues. The former husband appeals those aspects of the motion orders that declined to address parenting time and the sale of the marital residence.*fn1

Rule 5:5-4(a) provides: "Motions in family actions shall be governed by R. 1:6-2(b) except that, in exercising its discretion as to the mode and scheduling of disposition of motions, the court shall ordinarily 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 Mackowski v. Mackowski, 317 N.J. Super. 8, 14 (App. Div. 1998), the case relied upon by the motion judge in refusing oral argument, we made the following observations concerning the requirements of Rule 5:5-4(a):

Lastly, we must comment on the refusal to grant defendant's request for oral argument. R. 5:5-4(a) grants discretion to the trial judge to allow oral argument but provides that "the court shall ordinarily grant requests for oral argument on substantive . . . motions." We have interpreted this rule as mandating argument when significant substantive issues are raised and argument is requested. Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997). The issues raised here involved a change of custody and the implications of such change on child support as well as other issues impacting the long-range relationship of the parties. The child custody issue alone, certainly a matter of substance, warranted oral argument. The denial of such argument deprives litigants of an opportunity to present their case fully to a court. Denial of such a right, given the issues in dispute, was an abuse of discretion and was violative of both the letter and spirit of R. 5:5-4(a).

In our view, the issues raised in the motions, especially parenting time, drug monitoring related to parenting time, and the sale of the marital residence, were clearly "significant substantive issues." Oral argument provides a motion judge the opportunity to interact directly with counsel in an effort to resolve outstanding issues. Oral argument in this case would, for example, have alerted the trial judge to the fact that the restraining order precluded mediation. Because he first ordered mediation and then vacated that requirement, the parenting-time issues have remained unresolved throughout the pendency of this appeal. Oral argument would also have given the motion judge an opportunity to reach a resolution of the issues related to the sale of the marital residence, which, we understand, not only remains unsold, but is not even currently on the market.

Consequently, we vacate those portions of the orders on appeal concerning parenting time and the sale of the marital residence. We remand those aspects of the motions to the trial court for further proceedings, which shall include a reasonable opportunity to supplement the record and oral argument. In view of our remand, the former wife's pending motion to strike portions of the former husband's appendix is moot.

Remanded. We do not retain jurisdiction.

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