Oral Argument Is Rarely Denied in Navigating Complex Matters in Family Law Such as Modifications of Parenting Time

Robertelli v. Robertelli

Docket No. A-1187-19T2

Decided January 15, 2021

Submitted by New Jersey Family Law Firm, Hark and Hark

In a recent unpublished decision the Appellate Division reversed a trial court’s denial of oral argument and plaintiff’s motion to modify parenting time.

In Robertelli, the parties were married for 13 years before divorce and had three children together.  Pursuant to a custody and parenting time agreement (CPTA) executed during the litigation and incorporated into the dual final judgment of divorce, the parties agreed to equally share legal and physical custody of the children (the Robertelli children), ages ten, eight and five at the time of the divorce.

Plaintiff’s sister, Sandra Robertelli, was married to Jack Spinella, and the couple had two children (the Spinella children), before separating and ultimately divorcing. A provision in the parties’ 2018 judgment of divorce provided that Spinella’s parenting time with the Spinella children would not be on the same weekend defendant exercised her parenting time with the Robertelli children. This restriction was to continue “through at least June 30, 2019.” 1 Spinella has admittedly lived with defendant since 2018.

In August 2019, plaintiff filed a motion seeking to restrain defendant from exercising her weekend parenting time with the Robertelli children on the same weekends that Spinella exercised his weekend parenting time with the Spinella children.  He sought oral argument on the motion. Defendant opposed the motion.

The Judge denied plaintiff’s motion and did not allow oral argument, claiming he had all the information in the certifications.  The Judge also denied plaintiff’s request for a plenary hearing on the issue.  The Judge claimed plaintiff failed to demonstrate changed circumstances warranting a modification of the arrangement, and cited reasons from the Spinella litigation that occurred in a separate hearing that the same Judge handled.

Plaintiff appealed and the Appellate Division reversed.  The Court noted oral argument is necessary in complex and disputed matters to make the record clear and if one party requests it, courts should rarely deny it.  Just the denial of oral argument alone was enough to reverse the decision and remand for oral argument to take place.  In denying the plenary hearing, courts do not always need to schedule a trial if there is a dispute of fact, but only when there is a genuine material legitimate factually dispute.  Lastly, the trial court improperly relied on facts outside of the record, specifically in the Spinella litigation and that was inappropriate.

This case is also important to understand that oral argument is almost a right in arguing a motion in family court.  Oral argument is an opportunity to expand, clarify, and reiterate the points made in the motion papers.  A trial, or plenary hearing, on the other hand, is not always necessary and the Judge has some discretion in denying that request.  To navigate family motion practice such as modifications of parenting time, custody, child support, alimony and more, hire an experienced matrimonial attorney to ensure your best interests are protected.

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Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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