Post-Judgment Appeal To Unseal Ex Parte Transcript Is Moot
- January 14, 2015
- No comments
In Gearey v. Gearey, the Defendant, Lillian Gearey, appealed from a 2013 Family Court Order denying her post-judgment modification Motion seeking to “reveal the ‘super secret ex parte’ protected [o]rder” with regard to a hearing that was conducted between the judge, her ex-husband and her ex-husband’s attorney. The Appellate Division affirmed the decision of the Family Court. The parties in this case were married in 1979 and two (2) sons were born of the marriage – one in 1988 and the other in 1991. In 1999, the parties were divorced pursuant to a final divorce judgment which incorporated a property settlement agreement (PSA). The parties have engaged litigation multiple times since their divorce to deal with post judgment issues. The Defendant provided the Appellate Court with a transcript from 2009, which she specifically ordered for this appeal, that depicted a hearing that was held with regard to the Plaintiff’s application to the court to reduce his support amount. At the time, the judge sealed (pursuant to Rule 1:38-11) the proceeding and specifically closed it to the Defendant and her attorney. The proceeding was a discussion involving the judge, the Plaintiff, and his counsel only, with regard to the attorney’s request to be allowed to withdraw as counsel. Almost two (2) weeks after this, the Plaintiff’s attorney wrote a letter to the court stating that the Plaintiff withdrew his application to modify his support obligation. The Appellate Division noted, that the Defendant had raised the issue of this protected Order on numerous other occasions and has been “denied numerous times.” Further, the Defendant’s appellate brief was “difficult to decipher,” as she sought an “Order,” with regard to the issuance of the “secret ex parte Order” but the court had no indication that an Order was ever generated after the “secret” on-record discussion that took place in 2009. The court opines, “Rather than an order, perhaps defendant has been seeking a copy of the sealed transcript of the proceeding where she and her attorney were excluded.” Further, it was unclear to the Appellate Division why the transcript was even provided to the Defendant in the first place for the appeal in the absence of an Order unsealing it pursuant to Rule 1:38-12. Most obviously, the Appellate Court noted that the 2009 transcript it received was ordered six (6) weeks after the Family Court’s 2013 Order from which this appeal spawned from. The court assumes that the receipt of the transcript might have satisfied the Defendant’s need to know what the 2009 ex parte discussion was about. If that was the case, the entire appeal was moot. According to the court, “An issue is moot when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy.” Greenfield v. N.J. Dep’t of Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006). The Appellate Division affirmed the decision of the lower court citing that the rest of the Defendant’s arguments were without merit. If you anticipate that you may want to petition the court for a post-judgment modification of your child support or alimony obligations it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification , divorce, alimony, child support, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.