This is sort of a cross-post to the Appellate Practice Committee group. I know there are several people on this list who aren't members of the APC.
In reference to an issue and potential rule change, we are looking for more cases where the Appellate Division denied an application to proceed on an emergent basis as a result of the failure to obtain an order from a trial court addressing a stay application -- where a stay request was made, but not ruled on.
Please contact me (on list or off) if you've had this happen. More on the facts / specifics is below, but if you've had this happen, you'll know immediately what we're talking about.
Thanks.
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David Perry Davis, Esq.
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At a Committee meeting (several ones back - maybe March?), there was discussion regarding a change in procedure on emergent applications when the trial court will not address an application for a stay. I had a matter that went up to the Supreme Court on an emergent application after the App Div denied permission to proceed on emergent basis as no stay application had been ruled on.
A fellow practitioner just contacted me with very similar facts (see below). I'm fairly certain this was addressed, but don't recall if it was a rule change or something else we should reference when applying to the App Div after a trial court doesn't rule on a stay application.
Thanks.
Facts:
Mom moved out of state to flee DV from dad. She?s there, settled with a new job, with their 6 month old baby. Dad files an OTSC to compel her return. Mom gets served with THE ORDER ONLY and not the application leading up to the Order.
Mom is required to produce the child in NJ yesterday. Mom calls the Court and request an adjournment. Court says no, but allows mom to appear by phone at the hearing.
On the phone, the trial court judge appeared personally angry with mom, won?t let her speak, allows oral argument from dad?s attorney, and ultimately transfers custody to Dad, grants mom a week of visitation in her state at Christmas, and allows dad to go extract the child from mom in the new state on Monday!
No plenary hearing.
No testimony from either party.
No ability for mom even to file a certification responding to dad.
No ability for mom to even receive a copy of what dad filed.
Just transferred custody of a 6 month old baby from its only caregiver to dad.
Needless to say, we are filing an application to proceed with an emergent appeal.
I requested a stay from the trial court two days ago - sent a letter with two proposed orders, one granting the stay, one denying it. Haven't heard back. I called chambers multiple times.
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Nov 13, 2015 3:45 PM
Rajeh A. Saadeh, Esq
A similar situation occurred to me, at least on a procedural basis, in 2013 respecting the trial court's refusal to enter a written order on a custody issue and the denial of my request for a stay. I was on the phone with the clerk whose App Div judge was on emergent duty, and he gave me instructions to send to the trial court by letter, which I did. After following up with the App Div and trial court multiple times and following the App Div's instructions, which included filing a certification respecting my unsuccessful attempts to have the trial court enter a written order, the App Div eventually permitted me to file the application to proceed on an emergent basis and granted it.
Bottom line: call the App Div, tell them what is happening, and follow their instructions.
Good luck.
Rajeh A. Saadeh
The Law Office of Rajeh A. Saadeh, L.L.C.
50 Division Street, Suite 501
Somerville, N.J. 08876
p: 908.864.7884
f: 908.301.6202
[email protected]
http://www.rajehsaadeh.com
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Thanks, Raj, but the situation has now progressed. At 4:25, the trial court got Mom's attorney on the phone and heard argument on a stay. At 4:40, the trial court verbally indicated that it was going to grant a stay, changing its order so that mom had to return / relocate the child back to New Jersey (the right and reasonable order) from an order that Dad would have sole residential custody of this six-month-old (the unreasonable order).
At 4:45, while that decision was being announced on the record, the Appellate Division faxed an order denying the application for emergent relief -- because no order granting or denying the stay had been entered below. Upon reviewing this, the trial court promptly changed its decision and denied the stay, holding that dad was to pick up the child in Georgia.
Mom's attorney called me and, at 5:25, I made a Hail Mary pass by calling the (usually 8:30-4:30) emergent clerk of the Supreme Court. Remarkably, she was there and instructed that an emergent application to a Supreme Court justice would be heard, asking that the papers be in as soon as possible.
So I just went over her application for an emergent application to the Supreme Court seeking to stay the custody transfer. The issue / question remains the same: Was the discussion as to the Appellate Division changing its policy on denials "because no stay order was attached" when in fact there was no ruling on a stay order put in writing anywhere? Mom can and should cite it to the SCT. Obviously, mom is going to have to return to New Jersey with the child and do so post-haste...but a custody transfer isn't appropriate and should be stayed.
David Perry Davis, Esq.
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www.FamilyLawNJ.pro
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112 West Franklin Avenue
Pennington, NJ 08534
Voice: 609-737-2222
Fax: 609-737-3222
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The application for a stay has been filed with the Supreme Court. Here's hoping. Mom should be ordered to return the infant to NJ post-haste. Custody of the six month old should not be transferred without a hearing. Should the trial court find a change in circumstances potentially warranting this extreme modification of the status quo, mediation should occur within 72 hours thereof. If mediation fails, a hearing addressing the relevant statutory factors should be held.
<x-tab> </x-tab>Let's hope the SCT sees it that way. Good luck, Allison.
I hope that won't be the end of the larger issue, which is absolutely guarenteed to recur (this is three times in two years that I'm aware of, and these denials are not public knowledge).
When a trial court has failed to act on a request for a stay after counsel has provided with a reasonable opportunity to do so, the Appellate Division should not deny an application to proceed on an emergent basis for the failure "to obtain a signed court order ... before seeking a stay from the Appellate Division" (copy of current form Disposition on Application to Permission to File Emergent Motion attached - http://www.dpdlaw.com/NoStay.PDF - the underling is in the order). We are responsible for making the request to the trial court. Litigants in situations dire enough to be seeking emergent appellate action should not be penalized for the failure of counsel to "obtain a signed court order" when there's nothing more we can do.
Suggestion: If counsel certifies "I sought a stay from the trial court on _____________. That application has not been ruled on and the failure to grant a stay will result in irreparable damage as set forth herein" -- This should be enough. In my humble opinion, anyway.
Dave (Trombodore) - Can we put this issue on the agenda for the next meeting? Is a rule modification required, or can this be done via a modification to the form?
_________________________________________________________Nov 16, 2015 11:35 AM__________________________________________________________
David Perry Davis, Esq
The Supreme Court stepped in on Saturday afternoon and Justice LaVeccia did the right thing - reversed the Appellate Division's denial of a stay and issued a 10 day stay on the custody transfer pending further proceedings below.
If anyone else has had the Appellate Division deny an application to proceed on an emergent basis as a result of the failure to obtain a stay after a stay had been requested from the trial court but not acted on, please let me know (either on-list or off). As I said earlier, I'm aware of three cases, but would like to get a better handle on how common this problem is.
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