Order to show cause denied. This filing includes financial relief. See Crowe v De Gioia, 90 NJ 126 (1982). Submit a motion in the regular course. “Whether you’ve been on the winning or losing side of decisions like this, you’ve seen similar legal ‘reasoning.’ But did you know that financial matters – or rather, the consequences that come from financial matters – can be considered? be taken Crowe
Most practitioners are aware of this Crowe requires a party seeking injunctive relief to demonstrate with clear and convincing evidence that: (1) irreparable harm is likely if the injunction is refused; (2) the applicable underlying law is well regulated; (3) the material facts are not substantially disputed and there is a reasonable chance of ultimate success based on the merits; and (4) the balance of hardships for the parties will facilitate the granting of the requested relief. ID card. at 132-34; also see Brown v City of Paterson, 424 NJ Super. 176, 183 (App. Div. 2012). Unfortunately, Crowe has become a legal reference used on the head to remove an Order to Show Cause requesting financial support, without regard to the factual rationale and legal reasoning underlying the Supreme Court’s decision. However, the “Crowe factors ”can – and should – be used to address emerging financial problems in family matters.
Blasphemous, you say, court judges routinely conclude that Crowe is reserved for things that do not Involve finances. Indeed, judges often quote Crowe in support of their denials – and often they are wrong. Crowe is, essentially, a Palimony case requiring financial assistance. The Supreme Court decision in Crowe stemmed from a mover’s successful application to the Chancery Division for pendente lite support and to avoid eviction from her home – a home owned by her longtime romantic partner (Mr De Gioia). Crowe, NJ 90 at 129. Following the order of the Chancery Division, the Appellate Division has withdrawn and vacated the injunction. Crowe v De Gioia179 NJ Super. 36 (App. Div. 1981). The Supreme Court granted permission to appeal; maintained provisional support order pending its decision; and, in substance, temporary support was restored pending the final decision in the Chancery Division. Crowe, NJ 90 at 134-35. After reading Crowe, it becomes easy to discern why.
Mrs. Crowe and her children have been supported by De Gioia for almost 20 years. They lived, without rent, in a house owned by De Gioia. De Gioia, “a person with substantial resources, would incur relatively insignificant costs if he offered assistance [had been] granted. Crowe’s support, on the other hand, is [have been] devastating. ” ID card. at 134 In fact, she would have become homeless and would have needed “public help.” ID card. at 136. Of course, the ultimate question – whether the unmarried Crowe could make an enforceable promise – was rightly left to the court; but because of the serious, damaging circumstances Crowe faced without a preliminary injunction, the Supreme Court rightly maintained the “status quo” pending a plenary hearing.
Why do judges trust against that background Crowe refuse meaningful applications? For example, an application to force a contractually required, financially able parent to pay tuition fees, where the child is expelled from school in the absence of payment? Why do courts reject emerging applications where a financially able spouse has not paid support and the attendant effect of non-payment is: (i) that there is not enough money available for groceries and to pay for the utilities, including an internet bill ( luxury ”for homeschooling and work during COVID lockdowns); (ii) a home will be foreclosed, affecting a party’s credit; or worse, (iii) the beneficiary’s spouse is in danger of being evicted from her apartment. These are real world examples denied under the cover of CroweThe alleged unavailability simply because the relief sought is ‘financial’ in nature.
Words are important in our profession; How those words are used in the overall scheme of a decision is also important. As stated in this article, Crowe states: “a provisional injunction should be issued only when necessary to avoid irreparable damage.” Crowe also offers the following maxim: “[h]poor is generally considered irrecoverable in equity if it cannot be adequately offset by monetary damages. ” ID card. at 132-33. But did you appreciate the use of the word “sufficient” in that sense? Have you read the following sentence from Crowe“In certain circumstances, serious personal discomfort can constitute irreparable damage that justifies the granting of a temporary injunction. ” Ibid. (Emphasis added). It follows, therefore, that serious personal discomfort may fall within that category of benefits that cannot be “adequately” addressed with a subsequent award of damages.
It is clear from Crowe that courts need to consider the consequences that will be necessary if the requested financial compensation is refused. To some extent, almost every new request for financial relief is based on a claim of “personal inconvenience”; in turn, you must explain the immediate consequences of the absence of the requested financial compensation for the removal company in your case. This begs the question, what is “serious personal discomfort?” Croweprovides guidance on that point, of course: basic necessities, such as food and shelter, are ripe for temporary provisional relief, especially when the preservation of things like the ability to purchase food and shelter is merely preserving the status quo. Similarly the Crowe court requires De Gioia to pay Crowe’s “necessary medical, dental and pharmaceutical bills.” ID card. at 136. In a different spirit, in Jones vs Hayman, 418 NJ Super. 291, 301 (App. Div. 2011), the court concluded that female prisoners suffered “more than serious personal discomfort” after being “deprived of psychiatric and medical care,” [and] items of basic hygiene…. ” Ibid. (Internal quotes omitted).
Moreover, it does not follow Crowe that interim injunction to preserve assets should always be refused. For example, if the parties to a divorce are owners of a business subject to distribution, an interim injunction (in the form of a trustee, tax agent, or other coercive measures) may be appropriate. Cf. Balsamides against Protamene Chemicals, 160 NJ 352, 356 (1999) (provides shareholder with interim injunctive relief regarding governance and business operations, including the appointment of a director after a fight “erupted” in the company). A court may also take interim measures to prevent a party from disclosing trade secrets or confidential information; or otherwise harm the goodwill of a business, cf. Sun Dial Corp. v. Rideout, NJ 252 (1954) 16. It would logically follow that this lighting would be available to divorcing parties who have a business.
Crowe also offers guidance at the other end of the spectrum. In that regard, both the court and the Supreme Court concluded that De Gioia was not obliged to provide a car for Crowe because it[.] Crowe, NJ 90 at 136. In addition, both the Appeals Division and the Supreme Court concluded that the court had improperly restricted De Gioia’s use of assets. Ibid. It should be noted that the interests related to the car and the restrictions on assets were fact specific CroweBut cf. Camaraza v Bellavia Buick Corp., 216 NJ Super. 263, 267 (App. Div. 1987) (acknowledging, as dicta in a negligence case, the “significant personal inconvenience resulting from the lack of a car … [,]Including “being forced to walk to work or take disruptive public transportation. ”).
Here are a few helpful tips for getting past a denial. First, while marriage attorneys often file preliminary injunctions, many don’t file a cover letter. In accordance with Rule 4: 52-2, a party seeking injunctive relief while an action is pending must follow the requirements of Rule 4: 52-1. Subsection (c) of Rule 4: 52-1 provides in part: “Briefs will be filed in support of the injunction request.” While Family Part judges can ignore this requirement, you should not give the judge (or your opponent) a procedural reason to reject your application.
Second, give the court a legal basis to issue a preliminary injunction. If you are seeking financial aid, emphasize the underlying basis of the Supreme Court Crowe decision was a request for interim financial measures. If you are faced with issues with maintaining your business, rely on the cases mentioned in this article as well as the legal guidelines for the appointment of receivers or special tax agents. Moreover, if you are merely seeking to maintain the status quo – for example, providing for necessities or housing – you have a stronger argument. Crowe, NJ 90 at 133.
Third, articulate the factual basis for the court to conclude that the requested interim injunction is intended to maintain the status quo and / or prevent serious personal discomfort. Clearly state the immediate harm your client will suffer if the help sought is refused, and why your client cannot wait the “normal way”. This is a fact-sensitive issue that will revolve around the facts in your case. For example, a stay-at-home parent who does not have access to each car is a different circumstance than a stay-at-home parent who has access to the Range Rover, but not the Mercedes (in other words, don’t be greedy).
Finally, don’t look at the phrase “status quo” in a mechanical way. You should view your application for interim relief differently than and with a view to a motion for pending financial support. The latter can include things like a savings component, tennis lessons, or vacation component, while the former – temporary provision – is more limited when financial help is sought.
Matheu D. Nunn is a partner and co-chair of Appellate Practice at Einhorn, Barbarito, Frost & Botwinick, in Denville. Alyssa S. Engleberg, is a partner at Ruvolo Law Group in Morristown.
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