Was your judge sitting in Somerville by any chance? We have a judge there -who will be thankfully going to another county in September - not far enough away, though - whose orders were like yours, basic gibberish. After receiving a prelininary, my adversary and I both realized the order was a disaster and was going to cause more harm than good. Instead of going to OA, we met at my office and hammered out an agreement. A day or two later, the judge wrote to say that his prelim would be final if we didn't submit a consent order which we were still working on. I actually wrote the judge and told him that, from my perspective - I did not want to implicate my adversary although she felt the same way - I thought the prelim was poorly written, did not even get the agreed upon facts correct, let alone the law and that we did not want it entered as anorder in any form. I never heard anything more from thte judge on it and the consent order was submitted the next week. But, what happens to those poor litigants who are self-represented or who have lawyers who don't get along? Are they stuck with gibberish? IMHO, much, much more training should be going into judges - mostly new ones - who are going into the family division - the one division that can really make messes of entire families - and who have never handled a divorce in their career but who specialized in aviation or environmental law. Just one of my big pet peeves. Have a nice weekend all.
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Katherine Wagner Esq.
Somerville NJ
(908)526-0099
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Original Message:
Sent: 08-29-2013 15:08
From: David Perry Davis
Subject: How to handle a gibberish order
This message may be part vent / part question.
I filed a motion. Adversary a cross motion. Both are, IMHO, well presented, clear, well argued. Both sides present letter briefs as to the somewhat complex legal issues. The matter is argued. The judge begins by acknowledging that he didn't have the opportunity to thoroughly review the filings. Oral argument seems to go well in light of this disclosure.
We then receive an order a month later. It is essentially gibberish. For example, in the beginning section, it states that "plaintiff's application to modify pendente lite support is granted in part." The statement of reasons, however, say "plaintiff has presented no new information, his income and assets are unclear in contrast to his representations to the contrary, and he is in violation of discovery."
There were discovery violation issues raised, with extensive exhibits showing attempts to resolve the issues without filing a motion, and detailed lists of items that were not provided. The court ruled that "the parties should cooperate in good faith to complete discovery" (and denied counsel fees to a stay-at-home mom whose ex earns somewhere between $210K - $275K).
A request to consolidate the counsel fee and support terms of the FV that proceeded the FM is denied "as the court is procedurally unable to consolidate the matters..." (this was one of the briefed issues, with citations to Rule 4:38-1 and supporting case law). No discussion of the Rule or the case law, just a blanket statement. (Note that the above-referenced initial p.l. support was set under the FV, so modifying it would have also required consolidation, but that issue was ignored in the context of modification, but consolidation was denied in reference to enforcement).
There was a request to amend the complaint to assert a marital tort (disease transmission) and to briefly delay trial so discovery could be conducted. This was denied as being "violative of the Entire Controversy Doctrine." (which states all claims between parties need to be addressed in a single action where possible). But the denial of the amendment request was "without prejudice" - meaning what, when trial is now 30 days away? Without prejudice to what?
The whole thing is utter gibberish and nonsense. It's not a matter of either side winning or losing (to the extent that can even be determined in light of the contradictions in the order), it's just very apparent that the papers were never read, the arguments on either side never considered. It is just a quickly dictated random series of "decisions" with obvious block-and-copy of very long blurbs from essentially irrelevant cases (e.g., "discussion" of post-judgment modification law when the case is prejudgment). I've seen bad decisions before, but this is absolutely in a class by itself.
I was beginning to write the judge when a fax from my adversary came through indicating he shares at least some of the confusion.
The client is livid. She is bright and its very obvious what happened here. This motion cost her somewhere are $5,000 between the certs and evidence submitted and letter briefs and argument, and her ex about the same. As someone involved with this system, it is an embarrassment to me.
Notably, this is a judge I've appeared before who in the past did a fine job on motions, didn't always agree with the results, but the arguments were heard and intelligently ruled on. This judge was transferred from one vicinage to another, apparently with very little warning, and it seems that there was a rush to clear pending cases.
So, the vent: Litigants don't deserve this. No one taking a paycheck (never mind an oath of office) should have done this.
And the question: Any route anyone can see aside from the client funding a reconsideration motion (or interlocutory appeal)? How does one present legitimate frustration without appearing disrespectful (even when disrespect was earned)?
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David Perry Davis, Esq.
112 West Franklin Avenue
Pennington, NJ 08534
Voice: 609-737-2222
Fax: 609-737-3222
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