The practice of family law is difficult. I have read that divorce ranks just below the death of a parent or child in terms of grief. The cases are often emotionally charged. This sometimes causes people to take bad positions, delay, or simply act badly. Sometimes lawyers create or exacerbate the difficulties too.
That said, for the system to work, one would hope that the judge assigned to the case would not be part of the problem. Now there are many judges who come to the bench with little to no family law experience and there is a learning curve associated with that. I am not talking about that as a problem though in a perfect world, every jurist would have subject matter expertise.
What I am talking about is issues of temperament and demeanor that don’t help the process. One would think that no matter how frustrating, exasperating and sometimes even inappropriate a litigant or a lawyer can be, it seems critical that the judge remain the proverbial “adult in the room.”
When the wheels go off the track in this regard, the whole system gets a bit of a black eye. This is what appears to have happened in the case of Minzner-Conley v. Conley, an unreported (non-precedential) Appellate Division decision released on April 16, 2025.
The specific facts of the case aren’t that important other than to see that post-judgment attempts to effectuate enforcement of equitable distribution and alimony arrears lead to cross-TROs and motion practice.
As a lot of the dispute revolved around the ability of one party to retrieve personal property from the former marital home, the parties came to an agreement during oral argument of a motion that she would come on a date certain accompanied by an agreed-upon third person and spend six hours retrieving her belongings. The court ordered the other party to sit in the courtroom for those six hours. The Court also awarded the plaintiff $5,885 in counsel fees as a credit against unpaid alimony.
The Appellate Division disagreed that the award of counsel fees was an improper “sanction” and affirmed the award.
However, the short opinion next turned to the trial judge’s treatment of defendant’s counsel. The court noted that at the beginning of the motion argument, the court asked whether defense counsel was “a litigator.” He replied that he was a patent attorney and friend of the parties and was representing the defendant pro bono attempting to help the parties “move on.” The court then criticized counsel for his preparation of the brief and stated he had wasted the court’s time.
The Appellate Division then quoted the following from the transcript:
“There’s a look of concern on your face and I . . . want to tell you that I’m glad, because I think you . . . should have a look of concern. I probably have a look of concern on my face because I’m concerned. Very. I’m afraid, I’m afraid, [defendant’s counsel,] to tell you that it doesn’t seem like you know what you’re doing.
. . . .
And that’s . . . a big problem. So don’t say anything. I haven’t called on you to say anything at this point.
If that was it, that would be bad enough but it didn’t stop there. The opinion went on to note that:
“The court expressed its frustration that defendant had not complied with a prior order. But added: “I’m sorry to say I think he’s receiving advice from someone who doesn’t spend any time in Superior Court, Family Court and that has probably contributed to this situation. But I am inclined to afford to [plaintiff’s counsel] really what[ ]ever remedy [they] want.” The court described himself as using a “raised voice and excited tone.”
Later, the court told defendant’s counsel he “should stick to patent law,” he had wasted everyone’s time and made the situation worse. The court also said it was “tempted . . . to set [the case] down for an [o]rder [t]o [s]how [c]ause as to why [defendant’s counsel] should not be sanctioned a lot of money. I’m just so tempted to do it. But I just don’t have the time.”
While ultimately it was much ado about nothing because nothing seemed to come of it, the Appellate Division reminded the trial judge (and maybe all trial judges) about proper decorum when it stated:
“A lawyer should not be subjected to that mistreatment in a (virtual) courtroom proceeding in front of their clients. Defendant’s lawyer assisted twice in reaching agreements in this matter, alleviating the court of making any decision. That his client later failed to abide by the agreement was not the fault of counsel. Plaintiff sought fees for defendant’s failure to comply with the consent order and not as a sanction against his counsel.
For the reasons stated, we disagree that the fee award was a sanction against defendant or his counsel. However, considering the court’s acknowledged tone and behavior, we are constrained to remind the court of its duty to conduct proceedings with dignity, patience and courtesy to litigants and counsel alike. (Emphasis added).
The bottom line is that parties, attorneys and courts must treat each other with respect and dignity so that an already difficult situation doesn’t become even worse.
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