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Interview with Marie E. Lihotz, J.A.D. (ret.): A Life on the Bench

The Honorable Marie E. Lihotz, the subject of the following in-depth interview, is known to family law practitioners as a prolific author of decisions addressing family law issues over the past 15 years.

Judge Lihotz retired when she was still young, after a ‘lifetime’ of judicial service. At the time of her retirement, she was serving as the presiding judge of part B of the Appellate Division, where she served since 2006. During her Appellate Division service, she was appointed to the Supreme Court Family Part Practice Committee in 2007 and became that standing committee’s chair from 2009 until her retirement in 2017. Prior to her appointment to the Appellate Division, she was presiding judge of the Burlington Vicinage Family Part from Feb. 2001 to June 30, 2006, and a trial court Family Division judge from 1997.

During her career, she has been at the forefront of legal and judicial education. She was a founding member of the Thomas S. Forkin Family Law American Inn of Court, serving as president from 2008 to 2010, and continuing on the board of trustees at the time of her retirement. She chaired the Judicial Education Commit­tee of the Conference of Presiding Judges between 2002 and 2006 and was responsible for updating program materials for the Comprehensive Judicial Orientation Program and coordinating the Family Judges Spring Educational Conference. She also served on the Supreme Court Judicial Education Committee; co-chaired the subcommittee on the New Family Judges Orientation, the Supreme Court Committee on Public Access to Court Records, the Public Access Working Group, the Supreme Court Committee on Internet Technology handling efil­ing; and was a member of the Supreme Court Committee on Women in Courts. She has served as a guest lecturer at the Rutgers University School of Law—Camden and continues to serve in that capacity for the Institute for Continuing Legal Education, the New Jersey State Bar Association and county bar associations.

During her tenure in the Appellate Division, Judge Lihotz authored 35 reported appellate decisions pertain­ing to family law and one reported trial court decision.1

We thank Judge Lihotz for allowing us to spend time with her. The following excerpts are from her multi-hour interview conducted by Editor-in-Chief Charles F. Vuotto Jr., Executive Editor Ronald G. Lieberman and Senior Editor John Finnerty. We have attempted to organize the transcript of the interview with topical headings.

What came across in our interactions with Judge Lihotz was the same quality that comes across in her published opinions: an unremitting compulsion to consider the facts and the record and to do every­thing she could to make sure she “got it right.” We are saddened by her loss from the bench, but pleased that she has moved into another phase of her career.

Being a Judge

Vuotto: Your Honor, on behalf of the New Jersey Family Lawyer, I would like to thank you for taking the time to meet with us today. My first question is, what was your favorite part of being a judge?

Judge Lihotz: Well, I think lawyers get to advance positions of their clients. They get to help their clients present whatever issue or matter they want, but ideally a judge changes the law. That really is the most funda­mental difference, and I think that if you really examine what a judge has to deal with—the controversy in front of you—and when you are presented with a unique issue, typically the judges decide how this is going to go—deciding which lawyers’ arguments are found to be more persuasive, based on the law. And that, to me, is a pretty ominous responsibility. When you consider what you are doing, remaining neutral and looking at—espe­cially in the Appellate Division—what is the impact of the decision. I know counsel sometimes don’t view the issues that way. They know the impact to their client. They don’t usually look at what happens after this case. So, in the Appellate Division, we have to consider where are the parameters? What are the ends of this particular argument and how is it going to affect other similar cases? What facts would change this result. That’s why I know, during oral argument, many of our questions,  which seem as if they are from left field, are really trying to engage lawyers to talk about the possible parameters if the law is altered.

Lieberman: Judge, can you think of a case where you went into an oral argument on a family law matter having read the briefs and thought one thing about the case but after oral argument thought oral argument helped to clarify your thoughts?

Judge Lihotz: I can’t think of a specific family law case, but there are cases. In one particular case, when the attorney started talking, the three judges looked at each other and said wait a minute, that’s what this case is about? Because it was not clear from the brief that that’s what it was about. There is another case that actu­ally was a contract case and, during rebuttal, counsel made a comment in argument that, as far as I was concerned, made me take one giant step backwards and think he’s right.

The Uniqueness of Each Case: The Judicial Experience—Trial and Appellate

Vuotto: So what will you miss most about being a judge?

Judge Lihotz: There is an intellectual stimulation to the Appellate Division that differs from the trial court. In the trial court it’s more time spent trying to organize and analyze the issues and get people to an end result. The Appellate Division is more about analyzing the law, which is something that when you look that way, it’s fun. But mostly I’ll miss the people. I’ll miss my colleagues more than anything else. Because, unlike the trial court where you’re in a vicinage and you really don’t have time to go to lunch with another judge sitting in a different vicinage unless you are really, really geographically close to each other, which a couple of the vicinages up north are close enough to have lunch together, the Appellate Division brings judges together from different parts of the state.

Vuotto: Do you have any general tips to practitioners about appellate practice?

Judge Lihotz: My sense has been for a long time that most lawyers don’t understand appellate practice and most clients absolutely don’t understand appellate practice. Mostly, they don’t understand the very limited standard of review. No matter how many times we say it, many people think it’s a do over.

Finnerty: Right.

Judge Lihotz: Lawyers want to tell you what the other judge got wrong and the reality is if a case turns on credibility, and the trial judge makes it very clear that the determination made turns on credibility, it is near impos­sible to reverse because we don’t examine credibility. If the trial judge weighed the facts and you had compet­ing facts and the judge said I choose A instead of B or B instead of A, and those facts are found in the record, again, there really is no basis for us to intervene. If it’s a question of law, then you get a free pass because we look at the law and decide what the law should be. Now inter­estingly, our Supreme Court in the last several years has made clear that there are times when the law will change, and they have been persuaded to change it. The Appellate Division doesn’t have that luxury. So, we’re really bound by the Supreme Court’s decisions, but the Supreme Court decides if the law is going to change.

Finnerty: When you get something like the new stat­ute, someone’s got to say what it means.

Judge Lihotz: That’s right. That’s the Appellate Divi­sion’s role.

Finnerty: Right.

Judge Lihotz: When the Supreme Court hasn’t spoken on the subject, we’re the ones that give it the first shot, and then the Supreme Court tells us when we are incorrect.

Finnerty: But if a trial judge says, “I’ve observed the demeanor of the defendant and I observe him to be an angry man based upon the way he’s answering questions and raising his voice…”

Judge Lihotz: Well, if he’s short tempered and then there’s an allegation that he was short tempered during the incident, sure the judge could support that state­ment. But it’s interesting, sometimes judges, and I’ve seen this too in records, say, “Well my experience is a child under two should never spend an overnight with the non-custodial parent.” Well that’s not the law, that’s their experience. Thank you, I appreciate your input, but judges are not appointed for their opinions; they are appointed to apply the law. In such a case, every child is unique. I think the Supreme Court in Bisbing made it very, very clear that each case turns on its own facts. I really think a driving force for the Court to switch gears resulted because if you use the best interests of the child test, then every case is unique.

Finnerty: Right, every case is unique. It’s like this whole practice is like that. Every case almost, is unique.

Judge Lihotz: Right. So that gives lawyers the opportunity to make sure they marshal facts that show how our case differs from the facts in this case or the facts in that case.

Credibility Determinations and Appellate Review

Finnerty: Have you ever had an experience where the trial judge decided based on credibility and you had to handle the appeal and reverse the decision where the judge did make a credibility call but, because of other reasons, you decided that the overwhelming weight of the evidence as you assessed it beyond the credibility call was such that it didn’t hang together?

Judge Lihotz: Addressing when there’s a credibil­ity determination, a lot of trial judges often start their opinion and say, “I find both witnesses are credible.” Alright, thank you, that’s not helpful enough. I remember one case in particular where the issue was whether the husband delivered to the wife certain stock certificates. She said no, he said yes. And the opinion started with I found both the witnesses credible.

Finnerty: How is that possible?

Judge Lihotz: That kind of a credibility determina­tion is not helpful. The credibility determinations that are helpful explain what and why. Not every judge does it, and I can say the Supreme Court doesn’t necessarily require it. But if you say, the wife gave this set of facts as an explanation for what happened, and the husband gave this set of facts as an explanation for what happened, I believe one side or the other and explain why, and then you can tie it to other facts and evidence.

Finnerty: That’s interesting. A trial judge can say, “Okay, I find the defendant more credible then you,” and render a final decision based upon that without telling why they find them more credible.

Judge Lihotz: That could be a problem. It depends on whether it hangs, as you said, whether the rest of the case hangs together. A lot of times judges do that with experts and accept one expert’s opinion over another, but don’t explain why, and sometimes that’s a problem.

Lieberman: Often an appellate decision will cite Rule 2:11-3(e)(1)(E), saying that an argument will be affirmed without further explanation, because the argument lacked merit. What is it generally about an argument that would cause an appellate panel to use that citation?

Judge Lihotz: Often it’s because the law on the issue is so very clear.

Special Expertise of Family Part and Judicial Experience

Finnerty: Can Your Honor explain why the Appellate Division cites to the “special expertise” of a family law judge, when sometimes those trial judges come to the family part with little to no experience in family law as an attorney?

Judge Lihotz: That phrase, “special expertise” is the most misunderstood phrase. Expertise is based upon fact finding. Since family law is a specialized area, the factual findings by a trial judge are what the court defers to and what the court references in terms of a judge’s expertise. You have a family judge who only does family matters day in and day out, so when that judge makes a factual finding, if that factual finding is supported by the record, that’s what we defer to. The issue often refers to the depth of discretion, because family court judges have very wide discretion in a factual determination.

Finnerty: In some counties, it has been my experi­ence that when judges are first appointed to the bench, they get assigned to the family part, having had no expe­rience there. Is that a good thing to occur?

Judge Lihotz: Well, I can appreciate that reality. As an aside, my personal opinion has always been, and I’ve always advocated and tried to explain to other lawyers and other judges, that family court is a way to help someone learn how to be a judge. You have lots of deci­sions you have to make regularly. You do have to learn how to exercise discretion. You do have to understand what that means. You do have to learn how to control the courtroom. You do have to learn application of Rules of Evidence, contrary to another misnomer advanced often. I do think it’s a great forum to learn judging. I recognize that a lot of people don’t view it that way because it’s difficult and has a high-volume case load. And, I recog­nize your suggestion that if a judge has no family experi­ence, how can they do an FM case? There’s a lot of truth to that. I remember one noted family law judge who went to the Appellate Division said, “Oh [dissolution] it’s easy when there’s two lawyers on the case because they will guide you as to what the law is.” I did not have that expe­rience. I didn’t think that was true. I thought attorneys tried to guide me away from the law, particularly when a lot of them didn’t recognize that I actually knew what the law was. When I started, there’s one lawyer who told me: “Judge, in this county, the person who talks last wins.” I said thank you very much, that’s not going to hold in this courtroom. I mean, it was just kind of silly stuff.

Another argument often is, “This is only fair.” Well yeah, but fairness has to follow what the established law is. You’re right, judges should take very, very seriously the responsibility to learn. And there’s been some very, very good [family] judges who never touched a family case until they were appointed, and they learned because they have a certain pride.

Finnerty: It’s in here, inside.

Judge Lihotz: They know how serious the respon­sibility is, and they want to make sure that they get it right, not for their own ego to look good, but because the impact of every decision in family court is very, very heavy, in my view.

Judicial Discretion

Vuotto: You mentioned judicial discretion. I find that to be one of the most difficult things to explain to a client and sometimes to understand myself, in terms of what are the standards for abuse of discretion. Your Honor actually had a wonderful discussion about that in Slutsky. I think these are important quotes: “The authority to exercise discretion is not an arbitrary power of the individual judge to be exercised when and as his individual passion or partiality may dictated.” Then Your Honor went on to write: “The obligations to render a decision guided by the spirit, principle and analogies of the law and founded upon the reasoned and conscious of the judge to a just result in the light of the particular circumstances of the case.” Finally, Your Honor said, “We must reverse if we find the trial judge clearly abused his or her discretion such as when the stated findings were mistaken or that the determination could not reasonably have been reached on sufficient credible evidence present in the record or where the judge failed to consider all of the controlling legal principles.” So that seems to tell me, really, that abuse of discretion is the same as not finding support in the credible record or the substantial record.

Judge Lihotz: That’s a good part of it. Chuck, part of what you’re asking me is whether in some cases there’s just a general sense of wrongness, and can the issue of judicial discretion pervade other areas of law? For exam­ple, in criminal sentencing much of it is discretionary, but if there is a sense of wrongness when the Appellate Division judges review a sentence and find the result enrages our sensibility, so to speak. In that case we would reverse the exercise of discretion and vacate the sentence. We examine the case to see whether the discretion went too far. Frankly, any time a judge would say “my experi­ence is,” you have a potential for an abuse of discretion. It’s those kinds of things that are problems, because they ignore what the facts are and just make pronouncements. While the amount of alimony or support may be a discre­tionary call granting the support, whether it’s warranted or not, is a legal issue.

Vuotto: So, what did Your Honor enjoy more, being at the trial court or in the appellate court?

Judge Lihotz: Each assignment has its benefits. I know many trial judges who go to the Appellate Division have a little difficulty with the solitariness of it because, yes, you have a panel you are assigned to, and you only have court once a week when you see the other judges. There’s other judges in chambers, but everybody’s very busy writing, and so there’s not a lot of interaction. In the trial court, I could go talk to one of the other family judges and say, “what’s your reaction to this, what do you think? Did you ever experience this kind of a problem?” Sometimes you make a phone call to somebody who you know has more experience in a particular area than you, but otherwise that type of interaction doesn’t happen as often in the Appellate Division. I was lucky because I was able to satisfy the urge to be with people by lecturing, by working with the bar association. I did a lot of judicial education things, and the Family Practice Committee. But not everyone can balance all of those things with the responsibility in the Appellate Division because it can be a lot of work.

Interlocutory Appeals—When to Try

Finnerty: Let’s address the concept of how you would counsel lawyers, young and old, about things such as when you take a shot at a motion for leave to appeal. I know it’s a long shot and I know it’s like five percent, maybe 10. (I don’t know what the statistics are, but it’s very small.) But I had the humbling experience of being so offended by a decision that happened on an interlocu­tory basis that really will affect the case. It’s a discovery issue in a cohabitation case, and so I thought it was just wrong, so I filed a motion for leave to appeal and I told my client, “Listen, it’s a long shot, but let’s do it. What do we have to lose, since we’re going to have a problem in the case if we don’t do it and we are unsuccessful.” My adversary did not file a brief in response and I still lost.

Judge Lihotz: As a lawyer, I once took an appeal of a pendente lite determination. The other side called me up and literally laughed at me on the phone. They said, “Nobody ever does this, you can tell you’re a new lawyer, you don’t know what you’re doing.” I said, “Well do you remember when I asked the judge to provide findings and conclusions under Rule 1:7-4, and he said, “I’ve made my decision, get out of my courtroom?” I thought that was a reason to appeal it, and it was summarily reversed.

Lieberman: I’d like to hear this because I’ve got one right now.

Judge Lihotz: Well, it’s really tough. So, for example, a lot of judges just enter orders. They don’t give reasons. If there’s no reasons, I think there is a much better shot than an order that has reasons.

Lieberman: Does it have anything to do with which standard a court would apply, which body of law to apply, or who has the burdens of proof and persuasion?

Judge Lihotz: Well that could be another issue. If, for example, it’s pretty clear the burden rests on one party or the other, or there’s a burden shifting, and the judge ignored that in making an interim decision so that ruling could make a difference going forward—interim relief is more likely. Sometimes issues of discovery with respect to third parties trigger interlocutory review because there’s a privacy interest and because once you let the cat out of the bag...We often see issues with corporations. Discovery is demanded from a corporation, not a closely held corporation, and it’s opposed but the judge orders production without really explaining why and without a protective order. Those kinds of things I think the court would examine more carefully than, for example, a guy challenging discover ordered from his own corporation, who is trying to hide behind the corporate shield. Also, jurisdiction questions, I think, always are looked at on an interlocutory basis because that makes a huge difference. But I candidly admit when someone is ordered to pay a certain amount of money, often times it’s not something the court is going to examine.

Lieberman: Not even something as specific as a dollar figure? If there’s a standard, there’s a legal standard and a question about whether standard A or standard B is going to guide the remaining proceeding, a plenary hear­ing, would that be reviewed?

Judge Lihotz: Well that’s a legal issue, right?

Lieberman: So you’re an attorney bringing it up, and you are saying, “I need you, the Appellate Division, to say that the standard that the trial judge is going to apply to guide the next however many months this plenary hear­ing is going to take and then proceed is correct or that the judge is incorrect, in which case turn the ship around and move us around.” Wouldn’t that be something that, if you were handling it, you would say we need to do this right now as opposed to a year from now?

Judge Lihotz: Obviously I can’t speak for all of my colleagues, but that’s an issue I think that would be examined very carefully. In addition, if you can some­how garner some kind of irreparable harm. Let’s say in an ongoing case the judge told one of the parents to do three specific things and then we’ll have parenting time. The party did those three things and the judge said well let’s just see how it goes over the next few months with­out following the order to allow parenting time. Again, it seems to be an arbitrary result that does make a huge difference. It impacts the child. It impacts the parent. But more importantly, it’s irreparable harm to the child and the relationship between the parent and child.

The Judicial Process—Thinking and Deciding

Lieberman: Which decision out of all the family law decisions did Your Honor think was the most difficult to draft?

Judge Lihotz: I honestly don’t think that family cases were difficult to write because I understood the different parts of the issues. In the Appellate Division, I would gather the law and examine where this case fits within the published spectrum of decisions, then come up with a decision. I mean, I appreciated and understood the issues. So, when you do that, when you start with that kind of a framework, the decisions are not that hard. Are you asking which one took me the longest to write?

Lieberman: In general, when we’re writing whatever we’re writing, gosh I just can’t seem to figure out how to craft this cert or put this brief together or make these different.

Vuotto: Or how to resolve the issue.

Lieberman: I just don’t know how to come up with the theory of the case.

Judge Lihotz: As a judge, the very first trial I did was a custody trial between what I’ll call two less than stel­lar parents. I couldn’t make a decision. It took me a long time. It took me almost a year, which is horrible after a trial. I knew it, and it was nagging at me and nagging at me. But each parent had deficits, each one had some benefits but how does one weigh that? It was kind of a complicated fact pattern. But then there was a physical altercation between one of the parents and the children and then it because easy.

Finnerty: So it worked itself out.

Judge Lihotz: Well you feel the necessity to get it right. But after that experience, I started to have a better sense of weighing those types of issues. That’s why I think with trial judges it may be really difficult in the beginning to get your feet going and actually be able to write or make a decision, but once you do it, if you go through that process, then I think it becomes a lot better. There was a DYFS case where I actually…a termination of parental rights case where I actually would not terminate parental rights as to one child, but did terminate as to two others because the mother’s relationship with each one of these kids was completely different.

Finnerty: That’s fascinating.

Judge Lihotz: The one that I refused to terminate, or declined the request to terminate, had mental health issues and it seemed to me, based on the evidence, the only stability in this child’s life was his mother, and he wasn’t living with her. He was in a school because of his mental health issues, a resident facility, but at the same time, he was on the path to be released. But the other two children…her relationship with those children was not good, and it was harmful for the children. So, I know the division was very confused by the decision. The mom, at first, was confused, but then later wrote a letter to me and said “I understand exactly what you did,” and so that’s why I, again, emphasize every case turns on its own facts. If lawyers really want to have a judge decide something different from precedent, they need to marshal the facts to show why it’s not guided completely by that published case.

Finnerty: We lawyers these days, I feel, are not encouraged to practice that way by trial judges. One example in alimony, the one-third rule.

Judge Lihotz: There is no such rule.

Finnerty: I know that. And I say that to every client. I say, “Well you’re not going to find this in any of those books that are around the room that we’re in, but this is the pressure you get in the courthouse to approach a case that way. So, it’s get it over with. Let’s get this over with. This is the range, the range sort of works for what­ever reason it works.” So, there’s not an encouragement, I don’t think, really to develop the details, to develop the evidence. I just feel that. Well these questions are for you, but I feel there’s a change in the practice, if you will.

Judge Lihotz: I think there was an element of that, even when I practiced law. But I think the question for lawyers to consider as a business decision is, “Shouldn’t I take an appeal, even though the client may not be able to pay for it? Shouldn’t I do it to just right the ship?” And I know lawyers say, “Oh then the judge will hate me.” Not the good judges. The good judges say, “I made a mistake. I realize now.” I did file appeals a couple of times as a lawyer, and more than once the judge said to me, “You showed me something I never even considered.” And I’m thinking, “Okay, I tried to show it while I was in front of you but obviously I wasn’t successful,” but the judge respected my arguments after that.

Lieberman: Well, those aren’t easy to do. I had to go tell a judge who was just appointed, “I get to be the first one to appeal you.” I called up and said, “I’m sorry to do this to you. There’s a reason why we waited until almost the 45th day to do this. I have to do this. If you take offense at this, I’m sorry.”

Judge Lihotz: No judge should ever take it personally if an appeal is filed and/or if they get reversed, because the objective is always to figure out what the law is. I know there’s one or two issues where as a trial judge I was reversed by the Appellate Division, and I still disagree with the decisions. It’s one of those things that sometimes everybody, appellate judges, trial judges, they get locked in the rubric of structure and stop thinking. More than anything else, good judges always think.

Original Appellate Jurisdiction

Lieberman: What situation will cause the Appellate Division to assume original jurisdiction?

Judge Lihotz: If you look at the original jurisdiction rule, it guides the court. There are certain parameters when the court would exercise original jurisdiction, but it is the exception. One area is when the expense for the parties does not warrant remand when the Appellate Division can just end it.

Changes in the Practice of Law

Lieberman: Have you noticed any changes in the way that the practice of law has been conducted since Your Honor first went on the bench as a trial court judge?

Judge Lihotz: I think attorneys and judges are all too busy, so at times there’s less care taken in making presentations and decisions. There are more and more pro se litigants, both in the trial court and Appellate Division, likely driven by financial issues. Over the 11 years that I was in the Appellate Division the issues have become more complicated.

Lieberman: Has Your Honor noticed a change in the way attorneys conduct themselves as professionals?

Judge Lihotz: I haven’t seen any significant disrespect, but some are more informal with the appellate court. I have seen more aggressiveness, which goes beyond advo­cacy. People, for whatever reason, think they win points by directing comments to the other side or calling the trial judge names. I always stopped counsel when that would happen. It definitely tears at professionalism.

Lieberman: I’ve even noticed that the younger attorneys coming up feel a little bit different than how I conducted myself as a younger lawyer. I mean when I was their age, I would never have said some of the things on the record or in papers or in letters that I get from some young lawyers.

Judge Lihotz: It definitely tears at professionalism, and I think that much of that results from less and less mentor­ing. Again, going back to there’s not enough time. People want to get things finished. They want to get paid. They don’t want to spend a lot of time if they don’t have to. So, it makes it more difficult to spend time mentoring others.

Finnerty: In family law, perhaps it’s become more of a business direction model. I don’t know. The concept of mentoring is, I think, a really important thing that’s fun to do. I find it fun to do. There’s a lot of people that move around who say no one is teaching them anything.

Judge Lihotz: Judges have to be mentors too. But because they have calendars, they have so many things to do there isn’t as much opportunity to provide for the kind of mentoring that occurred in the past. There’s no school to learn how to be a judge. You learn by doing it and by seeing other people do it. I was lucky because I was a bankruptcy attorney, among other things, and Judy Wizmur was one of the people who I was amazed by, especially her demeanor on the bench, her ability never to lose her cool, her ability never to be caustic, never to be sarcastic. She was a great example, I think, of what all judges should be. Lawyers should always look for some­body to pattern themselves after. And I’m not so sure if young lawyers are even told to find somebody to emulate.

Changes in Systemic Pressures to Move Cases

Vuotto: Have you seen a change in pressure to move cases by the Administrative Office of the Courts over the years?

Judge Lihotz: That’s always been a mantra, I think, that people assume. The balance to get cases concluded, but not at the expense of justice, is something judges have to learn.

Finnerty: I find that the experience of best practices and its implementation in terms of pressures on lawyers and compliance on deadlines varies from county to county.

Judge Lihotz: Judges understand the responsibility to get cases done without sacrificing a sense of fairness to the litigants. And I think in my experience as a presiding judge, I was very fortunate because I cross-trained all the judges. They all knew every case type. We all had part­ners so if one judge was on vacation, that judge’s partner was responsible for what I’ll call the volume calendar, whether it be FD or DV or child support enforcement, so those calendars would not fall behind. Could the divorce trials get backed up? Maybe, but they didn’t because the judges also understood the responsibility to get those done and they kept specific track of cases they were assigned. I was able to have everybody really work together. They all cooperated with each other. So that sense of comradery, if you can achieve that in a court­house, eases the case load. But it falls on the presiding judge, and it’s a lot of work. It’s a lot of responsibility. Everybody always says if you have a real trial date, the cases will go away and it’s really, really true.

Finnerty: From a lawyer’s perspective, there needs to be a partnership with the trial judge. I know the tradition was one judge per case. That was the tradition. It seems that is less honored now because of rotation into and out of judicial assignments.

Judge Lihotz: It is harder and harder to meet the ideal of one judge, one family, even though it makes sense. Now judges have specialized calendars, as opposed to handling all matters in the family part. If you have a child protection matter, the judge assigned to that calendar will hear that case, but a judge assigned to an FD matter involving that family may not be the same as the child protection judge or the judge handling domestic violence involving these same parents. It’s a question of the resources available in the system.

Publication of Opinions

Vuotto: Many are perplexed by how an appellate matter is deemed worthy of being published, and thus becoming binding precedent. Would Your Honor give us some insight into that process?

Judge Lihotz: It’s actually a fascinating thing because I think lawyers don’t really understand the publication process in and of itself. For a trial judge, that judge could either submit it to the committee for publication or a lawyer could write a letter to the committee requesting publication. For the Appellate Division, each presiding judge is responsible for deciding whether an opinion gets published on the part. During my years as presid­ing judge, I knew when I first reviewed a case that it was more likely than not one designated for publication because of the issues to be addressed.

Finnerty: You can decide, as the presiding judge whether it should happen.

Judge Lihotz: Well yes and no. For example, during the panel’s preliminary discussions, I would say, “John, I’m going to assign this case to you. I think it warrants publication, so when you are writing it, keep that in mind.” Okay, John drafts the opinion for the court and when we get it finalized, each judge has a vote on publication. If the author of the opinion says no, it won’t be published. If another judge says no and the group cannot be persuaded for it to be published, then it won’t be published. If the presiding judge was not part of the panel, and the panel wants the case published but the presiding judge reviews it and says no, it won’t be published.

Finnerty: So it’s a veto. Ability to veto.

Judge Lihotz: Designation and veto. The other way to get the ball rolling is, any lawyer, even if you are not involved in the case, can ask the court to publish a case by writing and explaining it is really important. You write a letter to the Appellate Division clerk’s office stating the significance and why you think it should be published. The letter is submitted to the panel and the same process is started. The presiding judge talks to the author and then it goes to the other judges. If you wait too long to submit a request—if it’s more than 45 days after the opinion is issued—chances are the panel won’t let it be published. It’s also important to know if a case is published, the Supreme Court may look more carefully at certification requests.

Finnerty: What about the trial court?

Judge Lihotz: Trial court requests for publication go to the Committee on Publication, and the commit­tee itself, at least in my understanding, is comprised of retired appellate judges.

Finnerty: So for a trial court opinion, any lawyer who reads it, even if they are not involved, can submit a request for publication to the committee with the ratio­nale as to why he or she thinks it should be published?

Judge Lihotz: Correct.

Vuotto: So what published decision would you like an opportunity to re-write?

Judge Lihotz: The only one I would re-write would be one word changed in Gnall stating “this fifteen-year marriage is not short-term.” The Supreme Court did not like use of a bright-line rule.

Vuotto: What published decision are you the proud­est of?

Judge Lihotz: Division of Youth and Family Services v. S.L. The grandmother was requested by the division to have her granddaughter taken for psychiatric care and she said, “I do not think the child needs it,” but the divi­sion said, “yes, the child does.” The grandmother then gave permission for the division to take the child for a psychiatric exam and the grandmother didn’t interfere with what the division thought was needed. Never­theless, there was a complaint charging neglect: that grandmom failed to provide needed medical care for the child. The question required an objective examination of the facts to decide whether what happened was abuse or neglect under the statute because you don’t want the arm of the state to overstep its authority. The decisions I’m most proud of are the ones that I corrected what I thought was an injustice. Justice was the winner.

Vuotto: What published decision do you think will have the most impact on family law?

Judge Lihotz: If you want to know what cases got the most attention, obviously Gnall caused a firestorm. I mean I would read letters to the editor in local county papers attacking me and my intelligence. From my perspective, I didn’t really see the case as one that was difficult when you objectively look at the parties’ respec­tive incomes and their respective circumstances.

Vuotto: Judge, thank you very much for the time.

Finnerty: Thank you.

Lieberman: Thank you, Your Honor.

Endnote

1. In re R.S., 448 N.J. Super. 374 (App. Div. 2017); R.G. v. R.G., __ N.J. Super. __ (App. Div. 2017); Ricci v. Ricci, 448 N.J. Super. 546 (App. Div. 2017); Slutzky v. Slutzky, __ N.J. Super. __ (App. Div. 2017); In re Adoption of a Child by M.E.B. and K.N., 444 N.J. Super. 83 (App. Div. 2016); Lall v. Shivani, 448 N.J. Super. 38 (App. Div. 2016); Landers v. Landers, 444 N.J. Super. 315 (App. Div. 2016); Spangenberg v. Kolakowski, 442 N.J. Super. 529 (App. Div. 2016); Elrom v. Elrom, 439 N.J. Super. 424 (App. Div. 2015); In re I.N.W., 435 N.J. Super. 130 (App. Div. 2014); In re S.I., 437 N.J. Super. 142 (App. Div. 2014); Gnall v. Gnall, 432 N.J. Super. 129 (App. Div. 2013); Minkowitz v. Israeli, 433 N.J. Super. 111 (App. Div. 2013); Reese v. Weis, 430 N.J. Super. 552 (App. Div. 2013); D.N. v. K.M., 429 N.J. Super. 592 (App. Div. 2012); Clark v. Clark, 429 N.J. Super. 61 (App. Div. 2012); Ducey v. Ducey, 424 N.J. Super. 68 (App. Div. 2012); In re Guardianship of A.T.D., 428 N.J. Super. 451 (App. Div. 2012); Jacoby v. Jacoby, 427 N.J. Super. 109 (App. Div. 2012); Milne v. Goldenberg, 428 N.J. Super. 184 (App. Div. 2012); Sajjad v. Cheema, 428 N.J. Super. 160 (App. Div. 2012); Barr v. Barr, 418 N.J. Super. 18 (App. Div. 2011); In re B., 422 N.J. Super. 583 (App. Div. 2011); In re E.C., 423 N.J. Super. 259 (App. Div. 2011); Colca v. Anson, 413 N.J. Super. 405 (App. Div. 2010); In re J.B., J.D. and J.D., 417 N.J. Super. 1 (App. Div. 2010); In re Guardianship of M.S., 417 N.J. Super. 228 (App. Div. 2010); In re Guardianship of R.V., 414 N.J. Super. 423 (App. Div. 2010); In re K.A.N., J.B. and K.B., 412 N.J. Super. 593 (App. Div. 2010); In re J.B., J.D. and J.D., 417 N.J. Super. 1 (App. Div. 2010); Parish v. Parish, 412 N.J. Super. 39 (App. Div. 2010); In re P.M.P., 404 N.J. Super. 69 (App. Div. 2008); Genovese v. Genovese, 392 N.J. Super. 215 (App. Div. 2007); Finamore v. Aronson, 382 N.J. Super. 514 (App. Div. 2006); In re A.S., 388 N.J. Super. 521 (App. Div. 2006); L.D. v. K.D., 315 N.J. Super. 71 (Ch. Div. 1998).