Summary Disposition in Matrimonial Practice

As matrimonial practitioners, we have all met with countless clients and immediately assessed the situation with regard to their cause of action, support, equitable distribution and custody. The initial consultation, retention and then commencement of the action are often followed by what may be called the typical divorce pretrial disposition. This includes the support application, fixing of a parenting schedule and perhaps an advancement of fees or pendente lite distribution of marital assets.

Decisive Procedures

There are extremely decisive procedures that can be used on a pretrial basis to enable the practitioner, as well as the litigant, to dismiss or limit the issues outstanding in a matrimonial matter. On a pretrial basis, a case or legal issue may be dismissed by a court as a result of a partial or complete determination on the merits as a matter of law. Effective tools such as summary judgment or in limine applications, which unfortunately are not utilized by the matrimonial practitioner often enough, cannot only serve to protect the interests of your client, but, more importantly, enable you to streamline your case.

Notice of Motion for Summary Judgment

Applicable in nearly every forum, a Notice of Motion for Summary Judgment is clearly provided for in our state under the New Jersey Court Rules. The Rules, which are analogous to those promulgated in other states, provide, in part:

The judgment or order sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law. R. 4:46-2.

The New Jersey Supreme Court, in an effort to articulate what constitutes an application ripe for summary judgment opined:

We hold that when deciding a motion for summary judgment … the determination whether there exists a genuine issue with respect to a material fact challenged requires the motion judge to consider whether the competent evidential materials presented when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational fact-finder to resolve the alleged disputed issue in favor of the non-moving party. Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 523 (1995).

The rationale underlying the vehicle of summary judgment was articulated by the court in State v. South Amboy Trust Company, 46 N.J. Super. 497 (Law Div. 1957):

For not only its protection against groundless claims and frivolous defenses, saving the antagonists the time and expense of protracted litigation, it also reserves judicial manpower and facilities to cases which meretriciously command attention. Id. at 501. Thus, the purpose of the summary judgment procedure is to grant relief in cases where procedural tactics are interposed to delay the trial and the inevitable result sought by the institution of the suit.

The ability to move forward on a summary disposition, avoiding trial, discovery and ongoing litigation, will not only satisfy your client, but make the courts grateful for your visions of efficiency and judicial economy. There are myriad issues that are ideal for a summary judgment resolution seeking a declaratory ruling. It is a tool that has been implemented and successful throughout the nation. For example, the New York courts have utilized summary judgment in matrimonial matters in an attempt to limit the issues with regard to a litigant's business. In the case of Moll v. Moll, 187 Misc. 2d 77 (NY Sup. Ct. 2001), the New York Supreme Court (a trial court) rendered a decision on the husband's application for partial summary judgment as it pertained to his business interests. The husband was a financial adviser managing the stock exchange for high-end clients. He sought to limit the court's review of marital property by asserting that his stock brokerage clients or “book of business” did not constitute a marital asset subject to equitable distribution. After significant review, the court ultimately sided with the wife, finding that the husband's “book of business” was part and parcel of his business interests and thus included in equitable distribution. However, this case raises yet another appropriate application of the summary judgment instrument.

Summary judgment has been successfully used to determine the title to real property as it relates to equitable distribution. It has also been utilized in annulment cases; in cases involving a foreign Judgment of Divorce and associated jurisdictional issues; suits by children against a parent for college contribution; issues involving the inclusion or exclusion of certain income for the purposes of support; in a case mandating the appropriate termination date of a marriage for purposes of equitable distribution of assets and defining the limitations of discovery, and enforcement of prenuptial agreements. See Slodowski v. Slodowski, 156 N.J. Super. 376 (Ch. Div. 1978); Torres v. Torres, 144 N.J. Super. 540 (Ch. Div. 1976); Pierrakos v. Pierrakos, 148 N.J. Super. 574 (App. Div. 1977); Corrigan v. Corrigan, 160 N.J. Super. 400 (Ch. Div. 1978); Johnson v. Bradbury, 233 N.J. Super. 129 (App. Div. 1989); Lickfield v. Lickfield, 260 N.J. Super. 21 (Ch. Div. 1992); Hallincks v. Stenbeck, 307 A.d. 2d 915, 762 NY Sup. 2d. 903; Moll v. Moll, 187 Misc. 2d 77 (NY Sup. Ct. 2001). Summary judgment has been utilized in many states and viewed as a significantly economical pretrial tool.

Civil practitioners have always used summary judgment on a routine basis in order to eliminate frivolous or unnecessary issues in their often voluminous litigations. Matrimonial practitioners have the same opportunity, but unfortunately often fail to employ this effective and beneficial tool, which has been provided to us by virtue of decisional law, as well as statutory language promulgated across our 50 states.

Summary judgment should be used as a pre-trial process of weeding out and eliminating issues. It can be used for trial purposes in cases in which the parties are able to stipulate to most, if not all, of the operative facts. In such a situation, the trial judge need only make a decision based upon the stipulations, rather than using vital court time to endure needless testimony. This pretrial strategy is particularly useful in cases where credibility is not an issue and the process can represent a savings of time and expense to both the litigants, as well as alleviating overburdened court calendars.

Today's Trend

Whether it is viewed as an unfortunate or fortunate trend, all types of litigation have tremendously increased in recent years. As a result, the majority of our nation has overburdened and burdening court calendars with overwhelming dockets and triers of fact who desperately need to streamline issues as well as caseloads. Previously, in a court of equity, the tribunal was hesitant to implement a summary resolution such as summary judgment for fear that a litigant may suffer an inequity. However, in the changing scheme of our court system, summary judgment now becomes an intricately helpful and beneficial tool, which enables the court to eliminate the irrelevant and unnecessary issues. Use of summary disposition tools allows the court better use of its time and compels attorneys to provide more detailed briefs and pleadings as to these limited issues. In ensuring judicial efficiency and protecting litigants, the courts must balance summary decisions, weighing the importance of trying a disputed issue against wasting time on frivolous litigation.

Broadening the horizon, the New Jersey courts have utilized the mechanism of summary judgment in post-judgment matters as well. In the case of Yueh v. Yueh, 329 N.J. Super. 447 (App. Div. 2000), the trial judge on a post-judgment application, after extensive discovery, decided a question of interpretation and application of provisions of an interspousal agreement by way of summary judgment.

Notice of Motion In Limine

An alternative to a summary judgment application is another useful pretrial strategy, a Notice of Motion In Limine. This type of motion essentially seeks a pretrial determination on a point of law or the admissibility of evidence. A New Jersey appellate court discussed the use of a Notice of Motion In Limine in State v. Whitehead Bros. Co. Ins., 210 N.J. Super. 359 (Law Div. 1986):

While there is no role or statute that expressly authorizes it, the procedure is recognized as a part of a civil procedure of the courts here and in most other jurisdictions. Not only is the motion an aggressive trial technique, but it is an increasingly popular method of getting an early ruling on the admissibility of evidence. Under the right circumstances, the motion provides an excellent framework for a ruling.

It has been [noted] that the in limine procedure often permits a more thorough briefing and arguments than would be likely if proceedings are deferred. On the other hand, it must be stated that “the courts are” vigilant for requests that may be premature instead of early; proofs which can only develop in the environment of the hearing will be left for a decision until that time. Id. at 364.

This procedural disposition can aptly and thoughtfully be applied in the matrimonial context. A classic and very appropriate example of when a Notice of Motion In Limine can benefit both the litigant and the court in a matrimonial context is a situation in which a spouse seeks a pre-trial ruling with regard to whether acquired assets are in fact subject to equitable distribution. This situation occurred in Berry v. Berry, 252 N.J. Super. 635 (App. Div. 1991). In that case, the husband sought a ruling from the trial judge that effectively would have “the trial and discovery shortened by eliminating all references to the value of the business, which he considered a premarital asset not subject to equitable distribution.” Id. at 642. The substantive ruling of the trial judge was extremely helpful to both litigants and their respective attorneys. The Notice of Motion In Limine was not wholly granted, but it prompted the court to provide instructions as to what issues would be considered at the time of trial. Clearly, this pretrial vehicle served to limit the issues and time expended to frame the issues the court was willing to consider.

Although this decision applies only to cases subject to New Jersey law, it explains and follows the rationale and philosophy underling the in limine motion practice, ie, to enable the court to streamline issues and allow litigants, as well as practitioners, to direct their attention to those critical issues which remain outstanding.

Laurence J. Cutler, a member of this newsletter's Board of Editors, is the founder and managing partner of Cutler, Simeone, Townsend, O'Donnell, Tomaio and Newmark, LLC, Morristown, NJ. He has written and taught extensively, most notably as an Adjunct Professor of Law at Seton Hall Law School and as co-author of New Jersey Family Law Practice, a five-volume treatise used by virtually every family law judge and lawyer in New Jersey. Terryann Bradley, a former clerk for a family court judge, is an associate at the firm.

As matrimonial practitioners, we have all met with countless clients and immediately assessed the situation with regard to their cause of action, support, equitable distribution and custody. The initial consultation, retention and then commencement of the action are often followed by what may be called the typical divorce pretrial disposition. This includes the support application, fixing of a parenting schedule and perhaps an advancement of fees or pendente lite distribution of marital assets.

Decisive Procedures

There are extremely decisive procedures that can be used on a pretrial basis to enable the practitioner, as well as the litigant, to dismiss or limit the issues outstanding in a matrimonial matter. On a pretrial basis, a case or legal issue may be dismissed by a court as a result of a partial or complete determination on the merits as a matter of law. Effective tools such as summary judgment or in limine applications, which unfortunately are not utilized by the matrimonial practitioner often enough, cannot only serve to protect the interests of your client, but, more importantly, enable you to streamline your case.

Notice of Motion for Summary Judgment

Applicable in nearly every forum, a Notice of Motion for Summary Judgment is clearly provided for in our state under the New Jersey Court Rules. The Rules, which are analogous to those promulgated in other states, provide, in part:

The judgment or order sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law. R. 4:46-2.

The New Jersey Supreme Court, in an effort to articulate what constitutes an application ripe for summary judgment opined:

We hold that when deciding a motion for summary judgment … the determination whether there exists a genuine issue with respect to a material fact challenged requires the motion judge to consider whether the competent evidential materials presented when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational fact-finder to resolve the alleged disputed issue in favor of the non-moving party. Brill v. Guardian Life Ins. Co. of America , 142 N.J. 520, 523 (1995).

The rationale underlying the vehicle of summary judgment was articulated by the court in State v. South Amboy Trust Company , 46 N.J. Super. 497 (Law Div. 1957):

For not only its protection against groundless claims and frivolous defenses, saving the antagonists the time and expense of protracted litigation, it also reserves judicial manpower and facilities to cases which meretriciously command attention. Id. at 501. Thus, the purpose of the summary judgment procedure is to grant relief in cases where procedural tactics are interposed to delay the trial and the inevitable result sought by the institution of the suit.

The ability to move forward on a summary disposition, avoiding trial, discovery and ongoing litigation, will not only satisfy your client, but make the courts grateful for your visions of efficiency and judicial economy. There are myriad issues that are ideal for a summary judgment resolution seeking a declaratory ruling. It is a tool that has been implemented and successful throughout the nation. For example, the New York courts have utilized summary judgment in matrimonial matters in an attempt to limit the issues with regard to a litigant's business. In the case of Moll v. Moll , 187 Misc. 2d 77 (NY Sup. Ct. 2001), the New York Supreme Court (a trial court) rendered a decision on the husband's application for partial summary judgment as it pertained to his business interests. The husband was a financial adviser managing the stock exchange for high-end clients. He sought to limit the court's review of marital property by asserting that his stock brokerage clients or “book of business” did not constitute a marital asset subject to equitable distribution. After significant review, the court ultimately sided with the wife, finding that the husband's “book of business” was part and parcel of his business interests and thus included in equitable distribution. However, this case raises yet another appropriate application of the summary judgment instrument.

Summary judgment has been successfully used to determine the title to real property as it relates to equitable distribution. It has also been utilized in annulment cases; in cases involving a foreign Judgment of Divorce and associated jurisdictional issues; suits by children against a parent for college contribution; issues involving the inclusion or exclusion of certain income for the purposes of support; in a case mandating the appropriate termination date of a marriage for purposes of equitable distribution of assets and defining the limitations of discovery, and enforcement of prenuptial agreements. See Slodowski v. Slodowski , 156 N.J. Super. 376 (Ch. Div. 1978); Torres v. Torres , 144 N.J. Super. 540 (Ch. Div. 1976); Pierrakos v. Pierrakos , 148 N.J. Super. 574 (App. Div. 1977); Corrigan v. Corrigan , 160 N.J. Super. 400 (Ch. Div. 1978); Johnson v. Bradbury , 233 N.J. Super. 129 (App. Div. 1989); Lickfield v. Lickfield , 260 N.J. Super. 21 (Ch. Div. 1992); Hallincks v. Stenbeck , 307 A.d. 2d 915, 762 NY Sup. 2d. 903; Moll v. Moll , 187 Misc. 2d 77 (NY Sup. Ct. 2001). Summary judgment has been utilized in many states and viewed as a significantly economical pretrial tool.

Civil practitioners have always used summary judgment on a routine basis in order to eliminate frivolous or unnecessary issues in their often voluminous litigations. Matrimonial practitioners have the same opportunity, but unfortunately often fail to employ this effective and beneficial tool, which has been provided to us by virtue of decisional law, as well as statutory language promulgated across our 50 states.

Summary judgment should be used as a pre-trial process of weeding out and eliminating issues. It can be used for trial purposes in cases in which the parties are able to stipulate to most, if not all, of the operative facts. In such a situation, the trial judge need only make a decision based upon the stipulations, rather than using vital court time to endure needless testimony. This pretrial strategy is particularly useful in cases where credibility is not an issue and the process can represent a savings of time and expense to both the litigants, as well as alleviating overburdened court calendars.

Today's Trend

Whether it is viewed as an unfortunate or fortunate trend, all types of litigation have tremendously increased in recent years. As a result, the majority of our nation has overburdened and burdening court calendars with overwhelming dockets and triers of fact who desperately need to streamline issues as well as caseloads. Previously, in a court of equity, the tribunal was hesitant to implement a summary resolution such as summary judgment for fear that a litigant may suffer an inequity. However, in the changing scheme of our court system, summary judgment now becomes an intricately helpful and beneficial tool, which enables the court to eliminate the irrelevant and unnecessary issues. Use of summary disposition tools allows the court better use of its time and compels attorneys to provide more detailed briefs and pleadings as to these limited issues. In ensuring judicial efficiency and protecting litigants, the courts must balance summary decisions, weighing the importance of trying a disputed issue against wasting time on frivolous litigation.

Broadening the horizon, the New Jersey courts have utilized the mechanism of summary judgment in post-judgment matters as well. In the case of Yueh v. Yueh , 329 N.J. Super. 447 (App. Div. 2000), the trial judge on a post-judgment application, after extensive discovery, decided a question of interpretation and application of provisions of an interspousal agreement by way of summary judgment.

Notice of Motion In Limine

An alternative to a summary judgment application is another useful pretrial strategy, a Notice of Motion In Limine. This type of motion essentially seeks a pretrial determination on a point of law or the admissibility of evidence. A New Jersey appellate court discussed the use of a Notice of Motion In Limine in State v. Whitehead Bros. Co. Ins. , 210 N.J. Super. 359 (Law Div. 1986):

While there is no role or statute that expressly authorizes it, the procedure is recognized as a part of a civil procedure of the courts here and in most other jurisdictions. Not only is the motion an aggressive trial technique, but it is an increasingly popular method of getting an early ruling on the admissibility of evidence. Under the right circumstances, the motion provides an excellent framework for a ruling.

It has been [noted] that the in limine procedure often permits a more thorough briefing and arguments than would be likely if proceedings are deferred. On the other hand, it must be stated that “the courts are” vigilant for requests that may be premature instead of early; proofs which can only develop in the environment of the hearing will be left for a decision until that time. Id. at 364.

This procedural disposition can aptly and thoughtfully be applied in the matrimonial context. A classic and very appropriate example of when a Notice of Motion In Limine can benefit both the litigant and the court in a matrimonial context is a situation in which a spouse seeks a pre-trial ruling with regard to whether acquired assets are in fact subject to equitable distribution. This situation occurred in Berry v. Berry , 252 N.J. Super. 635 (App. Div. 1991). In that case, the husband sought a ruling from the trial judge that effectively would have “the trial and discovery shortened by eliminating all references to the value of the business, which he considered a premarital asset not subject to equitable distribution.” Id. at 642. The substantive ruling of the trial judge was extremely helpful to both litigants and their respective attorneys. The Notice of Motion In Limine was not wholly granted, but it prompted the court to provide instructions as to what issues would be considered at the time of trial. Clearly, this pretrial vehicle served to limit the issues and time expended to frame the issues the court was willing to consider.

Although this decision applies only to cases subject to New Jersey law, it explains and follows the rationale and philosophy underling the in limine motion practice, ie, to enable the court to streamline issues and allow litigants, as well as practitioners, to direct their attention to those critical issues which remain outstanding.

Laurence J. Cutler, a member of this newsletter's Board of Editors, is the founder and managing partner of Cutler, Simeone, Townsend, O'Donnell, Tomaio and Newmark, LLC, Morristown, NJ. He has written and taught extensively, most notably as an Adjunct Professor of Law at Seton Hall Law School and as co-author of New Jersey Family Law Practice, a five-volume treatise used by virtually every family law judge and lawyer in New Jersey. Terryann Bradley, a former clerk for a family court judge, is an associate at the firm.