It happens more frequently than one would think: the judge presiding over a family law matter either retires or in many cases is moved to another division within the court system.  For many years, family practitioners have been aware of the “one family/one judge” rule and the directives set forth by the administrative office of courts; there is a time-honored tradition of having one judge preside over a family matter for as long as the matter is active. In fact, it is an axiomatic premise that family court judges are well acquainted with the parties and for that reason appellate courts often do not like to disturb the findings of a family judge absent abusive discretion.  In other words, the standard of review of the family trial court is limited.  Cesare v. Cesare, 154 N.J. 394, 411 (1998).  The Appellate Division gives deference to family judges because they are well acquainted with the various idiosyncrasies and facts of the families involved in the matter. Donnelly v. Donnelly, 405 N.J. Super. 117 (App. Div. 2009).

The above was likely more true years ago than it is today considering judges spent most of their careers in the same division.  Today, in New Jersey, judges who are assigned cases in the family division are frequently moved from the family division to another division, such as the law division or criminal division, at some point during their tenure.  Due to the docket demands and lack of judicial resources, various vicinages move judges around throughout the different divisions within the courthouse.  Additionally, it is not uncommon for judges to retire in the middle of a case or in the middle of an existing family law matter.  When that occurs, those dockets are assigned to a new judge.

In some instances, the retiring judge may come back on recall and the cases that the judge presided over during their time on the bench will be reassigned to them for post judgment matters.  That said, however, recently this issue was addressed in the matter of T.E.J. v, H.A.W., 2018 WL 4839118.  In this case, the plaintiff appealed an order denying reconsideration of a previous order that granted the defendant residential custody of the parties’ daughter and allowed the relocation to another state.  Defendant had filed an application to relocate to Georgia and the trial court conducted a custody and relocation hearing.  The trial judge granted residential custody and allowed for the relocation to occur.  Thereafter, the plaintiff filed a motion for reconsideration, but the trial judge retired and the motion was then assigned to a new judge who had not presided over the relocation trial where the original extensive motion practice that had occurred previously.  The new judge assigned to the matter concluded that only the judge that made the custody and removal decision could order reconsideration.  Plaintiff then appealed the issue as to whether or not the motion judge erred when she denied reconsideration based on that premise.

The Appellate Division disagreed with the motion judge and determined that the motion judge was not procedurally barred from reconsidering the trial court’s custody and relocation order so long as the appropriate reconsideration standards were applied.  Therefore, the Appellate Division vacated the order denying reconsideration solely on those procedural grounds and remanded the issue back to the trial court and the new motion judge.

The Appellate Division did not address any of the merits regarding the custody and relocation order but, instead, restricted its decision to the procedural issue of whether or not a new motion judge could and should hear the motion to reconsider the order of a retiring judge.

It may seem that this particular issue, at least at first blush, is an anomaly or perhaps not even significant enough to address, but rest assured disagreement regarding the procedural issues surrounding one judge reconsidering the motion of another judge who is unavailable happens frequently. T.E.J. v, H.A.W. is a case that every family law practitioner should be mindful of when this issue arises.  Whether it is the adversary that argues against it, or the judge who is refusing, it is now clear that the Appellate Division, after having this issue raised numerous times and in an effort to quell any confusion, has unequivocally indicated that where an order is issued by a retiring judge, a new judge has the procedural authority to decide a motion for reconsideration.  It stands to reason that this does not just apply to motions for reconsideration but also applies to trials, new trials, other issues remanded by the Appellate Division and all issues regarding the review of orders issued by a judge who is no longer available and even judges that presumably have been transferred to another division.