Oral Argument of Motion

[Novice]

My question involves court procedures for the state of: NJ

Hi,

I need some help in regard to what I am and am not permitted to do/ask during motion proceedings in Court.

I will be appearing pro se, and my ex is represented by an attorney in a post-judgment family court motion proceeding. The motion proceeding is in regard to alleged arrears in support and judgment, and alleged violations of our matrimonial settlement. I feel that my ex has made numerous false statements and misrepresentations in her certifications to the Court. I have presented evidence of my beliefs to the Court in my reply certification and associated exhibits, and I have also provided copies of prior Court orders, which I feel she has violated, and (I believe) proving that I have not violated, and thus cannot be in arrears in any manner that she has suggested. I anticipate that only her attorney will be appearing in Court for our motion proceeding.

I had the understanding that I have a right to question my ex under oath during the Court appearance. In a prior motion, she failed to appear in Court, and her attorney made arrangement to represent her only via telephone. I have already submitted evidence to the Court (in the form of prior Court transcript of her attorney's statements and documentation that proves those statements false) that illustrate that her attorney will make false statements to the Court on her behalf. I believe that she is being instructed to not appear in Court, in order to avoid being questioned under oath. I question whether her attorney arranged to appear only by telephone in anticipation that I might present evidence of his prior false statement(s) to the Judge.

Am I incorrect in my belief that I have the right to question her before the Judge? If she is not present in the Court, and I am thus unable to question her directly under oath, do I have the right to ask the Judge to dismiss her motion entirely?

Thank you.

[Mr. Knowitall]

An argument is exactly that - argument. Typically: The moving party presents its argument to the court, the opposing party presents its argument, the court may permit rebuttal(s), and then the court either rules on the motion or takes it under advisement and issues a later ruling.

Witness testimony may be taken at an evidentiary hearing, but if all that is scheduled is argument on a motion you should not anticipate either that the court will transform the argument into an evidentiary hearing or that you'll later get an evidentiary hearing. I'm not going to speculate as to whether an evidentiary hearing has been requested or scheduled, or the court's policies if it decides it needs to take testimony before deciding a motion - you need to review the state and local court rules, examine the notice of hearing and any associated notices from the court, and perhaps even ask the judge's clerk, whatever it takes to determine what you need to do in representing yourself in your case. Better, retain counsel.

[Novice]

Thanks Mr. Knowitall.

Maybe my question here should have been, what are my rights to elicit testimony from the opposing party, in the event she or her attorney makes a false statement during the oral argument? This has occurred previously, when her attorney made a false claim pertaining to her employment status and housing. I stated to the Court at that time that her attorney's statement was false, and attempted to provide evidence that I had with me, but the Court refused to accept my evidence at that time, because it had not been submitted in advance of the motion proceeding and been made available to my opposition.

I was advised by a different member of this forum, under a previous post, that since my ex's attorney made this statement, and it was not made directly by her, that the attorney could claim confusion or that he misunderstood what she had told him. The other member (Tex11?) seemed to imply that I had the right to have my ex sworn in at that time, and question her directly, which I failed to do.

I am trying to determine what I am allowed to do in Court should a similar situation arise again, since I anticipate that my ex will not appear in Court and only her attorney will. If the attorney makes another false statement to the Court, and I am unable to have my ex make a clarifying statement under oath because of her absence, what is there to prevent her attorney from saying whatever false statement he wants?

This is a family court post-settlement motion proceeding, in regard to claims that I am in arrears on support payments and that I am in violation of the MSA. I doubt, as you said, that there will be any evidentiary hearing. I have not even received any notice of hearing from the Court, though I have confirmed the date with the Court clerk, after I submitted a request for adjournment and received no further notice. The ombudsman's office in the Court House is near impossible to get a hold of.

[Conrad Hunter]

I don't know NJ or family law specifically. However, generally speaking, motion hearings are not evidentiary hearings. An evidentiary hearing must be specifically noticed as such with notice that testimony will be taken, etc.

If it is an evidentiary hearing then you can call witnesses, subpeona witnesses and cross examine the other sides. You can also introduce evidence. Be sure you are able to authenticate it and then move it into evidence.

Standard motion hearings are based on the record such as affidavits and exhibits along with oral argument by the attorneys or pro se party. Oral argument is about the law but everyone argues the facts as they see them. Such argument of facts is not evidence, though I have seen plenty of judges forget that.

You should read up on family court procedure in your state. One thing to see is if you need to move your affidavits and exhibits into evidence to become part of the record in the case. Lots of people make the mistake thinking that just filing stuff with the clerk makes it evidence in a case. That is not true generally.