Submitted September 12, 2017
appeal from the Superior Court of New Jersey, Chancery
Division, Family Part, Morris County, Docket No.
Weinberger Law Group, LLC, attorneys for appellant (Jessica
Ragno Sprague, on the brief).
& Associates, LLC, attorneys for respondent (Carolyn N.
Daly and Amy Kriegsman, on the brief).
Judges Fisher, Fasciale and Moynihan.
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.
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.
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.
reverse for two essential reasons.
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).
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
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. 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.
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 ...