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Lilieholm v. Lilieholm

October 21, 2008

KATHLEEN M. LILIEHOLM, PLAINTIFF-RESPONDENT,
v.
GEORGE C. LILIEHOLM, DEFENDANT-APPELLANT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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