MICHAEL PALOMBI V. SUSAN PALOMBI, 414 N.J. Super. 274 (App. Div. 2010), A-2189-08T2, July 8, 2010:

Rule 5:5-4 states,

[I]n exercising its discretion as to the mode and scheduling of disposition of motions, the court shall ordinarily grant requests for oral argument on substantive and non-routine discovery motions and ordinarily deny requests for oral argument on calendar and routine discovery motions.

This provision has generally been interpreted to require oral argument “when significant substantive issues are raised and argument is requested.” Mackowski v. Mackowski, 317 N.J. Super. 8, 14 (App. Div. 1998). The denial of oral argument when a motion has properly presented a substantive issue to the court for decision “deprives litigants of an opportunity to present their case fully to a court.” Ibid.

However, the Rule still permits a trial court to exercise its discretion to deny such requests, even in cases involving “substantive” issues. The discretion afforded by Rule 5:54-4(a) is designed to give the judge “the option of dispensing with oral argument . . . when no evidence beyond the motion papers themselves and whatever else is already in the record is necessary to a decision. In short, it is the sole purpose of these rules to dispense with what is regarded as unnecessary or unproductive advocacy.” Fusco v. Fusco, 186 N.J. Super. 321, 328-29 (App. Div. 1982). Such advocacy is plainly unnecessary when there is no factual dispute between the parties. Advocacy does not become necessary or productive simply because the parties disagree as to facts, however minor. There are cases in which factual disputes exist, but because a motion is deficient on its face, the motion fails to properly present “substantive” issues to the court for determination.

The inquiry does not end because the nature of an issue presented can be labeled as pertaining to a substantive issue or because the parties do not agree on all facts. Other circumstances, such as the sufficiency of the supporting facts alleged are also relevant to the exercise of discretion. This is particularly true in the case of motions that seek a modification of financial obligations or reconsideration of a prior order because the movant must satisfy certain requirements before these motions are ripe for decision by the court. See R. 5:5-4(a); R. 4:49-2. When the record presented to the court in support of a motion is deficient on its face to satisfy such requirements, oral argument does not afford litigants an opportunity to cure such evidentiary deficiencies.

See related Blog Post, published in the New Jersey Family Law blog.

See related Blog Post by Laurence J. Cutler, Esq.; with a follow-up HERE.

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.