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L.C. v. M.A.J.

Superior Court of New Jersey, Appellate Division

September 20, 2017

L.C., Plaintiff-Appellant,
M.A.J., Defendant-Respondent.

          Submitted September 12, 2017

         On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-0952-16.

          Weinberger Law Group, LLC, attorneys for appellant (Jessica Ragno Sprague, on the brief).

          Daly & Associates, LLC, attorneys for respondent (Carolyn N. Daly and Amy Kriegsman, on the brief).

          Before Judges Fisher, Fasciale and Moynihan.


          FISHER, P.J.A.D.

         On the day of a final hearing, defendant filed an in limine motion, unsupported by a sworn statement, seeking dismissal of his ex-wife's domestic violence complaint. Without taking testimony from any witness, the judge granted defendant's motion, concluding that plaintiff failed to sustain her burden of proving an act of domestic violence. Because the procedures employed were seriously flawed and contrary to the spirit of the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, we reverse.

         On May 16, 2016, plaintiff filed her domestic violence complaint and, at a brief hearing before a different judge the same day, she obtained a temporary restraining order. Her complaint alleged a history of domestic violence that included past physical abuse and other controlling conduct; as for the present, she complained defendant harassed her by sending communications to her and her employer.

         At the outset of the May 31 final hearing, defense counsel presented to the judge a motion to dismiss. Although the motion invoked no particular rule, in his merits brief here defendant argues the motion was based on Rule 4:6-2(e), which authorizes dismissal when a complaint fails to state a claim upon which relief may be granted. The moving papers, however, suggest something different. That is, defendant's motion didn't address whether plaintiff pleaded all the necessary elements of a cause of action; defendant addressed the specific facts alleged and argued plaintiff only asserted his communications related to parenting issues and did not constitute harassment. After hearing from both attorneys but without hearing any testimony, the judge granted the motion and dismissed the complaint.

         We reverse for two essential reasons.

         First, we have repeatedly condemned the filing or consideration of in limine motions that seek an action's termination. See Cho v. Trinitas Reg'l Med. Ctr., 443 N.J.Super. 461, 464, 470 (App. Div. 2015), certif. denied, 224 N.J. 529 (2016); Klier v. Sordoni Skanska Constr. Co., 337 N.J.Super. 76, 83-85 (App. Div. 2001). Our court rules simply do not countenance the practice of filing dispositive motions on the eve of or at the time of trial. An in limine motion, filed at such late date, is permissible only when it addresses preliminary or evidentiary issues. Even then, such motions are "disfavor[ed], " Cho, supra, 443 N.J. Super, at 470; State v. Cordero, 438 N.J.Super. 472, 484-85 (App. Div. 2014), certif. denied, 221 N.J. 287 (2015), and should be heard "only sparingly, " Bellardini v. Krikorian, 222 N.J.Super. 457, 464 (App. Div. 1988).

         Defendant's motion did not seek a resolution of a preliminary or evidentiary issue; defendant sought dismissal. By moving for a sudden and summary disposition of this domestic violence action, defendant proceeded improperly. And the judge erred by considering the motion instead of rejecting it out of hand.

          Indeed, what makes this case different from the other cases cited above is that the improper motion was filed in a domestic violence matter. We condemn even more vigorously motions of this type in this setting, where the alleged victim's safety and well-being are the suit's prime considerations.[1] It is the rare domestic violence action that may be amenable to a pretrial dismissal on its merits. And, in that rare case, due process - despite its flexibility - requires nothing less than adequate notice, an opportunity to file opposition, and a fair chance to be heard. The judge's mistaken willingness to consider defendant's last-minute dispositive motion deprived this alleged domestic violence victim of meaningful reflection and an opportunity to file responding papers. This rapid disposition deprived plaintiff of due process and compels reversal. See Doe v. Portiz, 142 N.J. 1, 106 (1995) (recognizing that "due process requires an opportunity to be heard at a meaningful time and in a meaningful manner"). If defendant possessed legitimate grounds for seeking dismissal - an assertion we do not address - he should have been relegated to moving for an involuntary dismissal at the close of plaintiff's case or at the close of all the evidence.

         Second, despite defendant's efforts here to recast his trial court motion as a motion to dismiss for failure to state a claim, the record reveals that defendant sought dismissal and the judge dismissed the action because they both believed plaintiff's factual allegations failed to provide an adequate framework for a final restraining order. Like the judge's oral opinion, the order under review states that the action was dismissed because the judge "determined . . . that the required burden of proof has not been met." This statement belies defendant's contention about the nature of the motion since a Rule 4:6-2(e) motion may not address a plaintiff's "ability ... to prove the allegation contained in the ...

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