HOW TO OBTAIN EMERGENT RELIEF IN NEW JERSEY
(I.E., FILING AN “ORDER TO SHOW CAUSE”)
- 1 HOW TO OBTAIN EMERGENT RELIEF IN NEW JERSEY
- 1.1 ORDER TO SHOW CAUSE
- 1.2 RECOMMENDATION TO HIRE ATTORNEY
- 1.3 RULES OF COURT
- 1.4 WHAT IS AN INJUNCTION?
- 1.5 THE CROWE STANDARD
- 1.6 MUST BE NECESSARY TO PREVENT IRREPARABLE HARM
- 1.7 THE LEGAL RIGHTS UNDERLYING THE CLAIM MUST BE SETTLED
- 1.8 THERE MUST BE A REASONABLE PROBABILITY OF SUCCESS ON THE ULTIMATE MERITS
- 1.9 THE RELATIVE HARDSHIP TO THE PARTIES MUST FAVOR GRANTING RELIEF
- 1.10 SHOULD NOT HARM PUBLIC INTEREST
- 1.11 CLEAR AND CONVINCING EVIDENCE GENERALLY REQUIRED
- 1.12 LESS RIGID APPROACH SOMETIMES AVAILABLE
ORDER TO SHOW CAUSE
When you seek emergent relief, it is by applying for an “Order to Show Cause.” The name is literal; the Court grants temporary relief and then sets a date on which the parties are required to appear and “show cause” why that relief should or should not be made permanent. The application is often heard and decided the same day it is filed with the Court, and at most, it should be heard within a few days.
Nevertheless, Courts strongly disfavor emergent relief. The vast majority of requests should be made by traditional motion. When seeking emergent relief, the burden that must be satisfied is extremely high. It is only when threatened with irreparable harm that an Order to Show Cause is appropriate.
RECOMMENDATION TO HIRE ATTORNEY
The situation with which you are faced is severe, and therefore, I strongly recommend hiring an attorney. The burden for issuance of an Order to Show Cause is especially high (requiring “clear and convincing evidence”), and there are strict rules about what will and will not qualify as irreparable harm (typically, but not always, the harm must be non-financial).
You might win without an attorney. You might lose with one. But there is no doubt that hiring a qualified and aggressive attorney will dramatically increase your odds of success. When you are threatened with an irreparable harm in the event of failure, the choice is clear: Hire the best attorney you can find.
RULES OF COURT
Notably, the Court does not need to find a threat of irreparable harm if: (a) the application seeks relief on the date of the court appearance, rather than before the court appearance; (b) the opposing party has been given notice of the application; or (c) the opposing party consents to the requested relief. Nonetheless, the widespread practice of Courts in the Family Part is to require a showing of irreparable harm on all Orders to Show Cause. Although doing so is incorrect, lawyers and litigants must nevertheless address that practical reality.
“On the filing of a complaint seeking injunctive relief, the plaintiff may apply for an order requiring the defendant to show cause why an interlocutory injunction should not be granted pending the disposition of the action. … The order to show cause shall not, however, include any temporary restraints or other interim relief unless the defendant has either been given notice of the application or consents thereto or it appears from specific facts shown by affidavit or verified complaint that immediate and irreparable damage will probably result to the plaintiff before notice can be served or informally given and a hearing had thereon.” [R. 4:52-1(a).]
“If the order to show cause includes temporary restraints or other interim relief and was issued without notice to the defendant, provision shall be made therein that the defendant shall have leave to move for the dissolution or modification of the restraint on 2 days’ notice or on such other notice as the court fixes in the order. The order may further provide for the continuation of the restraint until the further order of the court and shall be returnable within such time after its entry as the court fixes but not exceeding 35 days after the date of its issuance, unless within such time the court on good cause shown extends the time for a like period or unless the defendant consents to an extension for a longer period. The order to show cause may be in the form in Appendices XII-G and -H to the extent applicable.” [R. 4:52-1(a).]
The Rules of Court also establish the form that the Court’s Order to Show Cause should take, and if your application is granted, the Court will issue a substantially similar document:
- Order to Show Cause with Preliminary Injunction: [Pressler, Current N.J. Court Rules, Appendix XII-G.]
- Order to Show Cause with Temporary Restraints: [Pressler, Current N.J. Court Rules, Appendix XII-H.]
WHAT IS AN INJUNCTION?
Your requests for emergent relief are not, however, limited to stopping the opposing party from doing something. You can also require the opposing party to do something. When the injunction requires the performance of some act rather than prohibiting the performance of some act, it is called a “mandatory injunction.” More specifically, “[u]nlike a prohibitory injunction, a mandatory injunction commands the defendant to do some positive act or particular thing, prohibits him from refusing (or persisting in a refusal) to do or permit some act to which plaintiff has a legal right, or restrains defendant from permitting his previously wrongful act to continue.” [Samaritan Center v. Borough of Englishtown, 294 N.J. Super. 438, n.4 (Law Div. 1996).] For example, typical mandatory injunctions in divorce litigation include orders requiring a party to reinstate insurance coverage and orders requiring the parties to communicate about their children’s health, education, and welfare.
THE CROWE STANDARD
In that case, the New Jersey Supreme Court established four factors that must be satisfied to justify the extraordinary remedy of preliminary relief. Thus, before the Court will grant your request for an Order to Show Cause, you need to establish that:
(1) the requested relief is necessary to prevent irreparable harm;
(2) the legal rights underlying the claims are settled;
(3) there is a reasonable probability of ultimate success on the merits; and
(4) the relative hardship to the parties in granting or denying relief favors granting the relief. [Crowe v. DeGioia, 90 N.J. 126, 132-34 (1982).]
MUST BE NECESSARY TO PREVENT IRREPARABLE HARM
“Harm is generally considered irreparable in equity if it cannot be redressed adequately by monetary damages. In certain circumstances, severe personal inconvenience can constitute irreparable injury justifying issuance of injunctive relief.” [Crowe v. DeGioia, 90 N.J. 126, 132-33 (1982).]
Generally, the harm must be “substantial.” [McKenzie v. Corzine, 396 N.J. Super. 405 (App. Div. 2007).] [Subcarrier Communications, Inc. v. Day, 299 N.J. Super. 634 (App. Div. 1997).]
Further, the harm generally must be “immediate” or “imminent.” [Subcarrier Communications, Inc. v. Day, 299 N.J. Super. 634 (App. Div. 1997).] [JH Renerde, Inc. v. Sims, 312 N.J. Super. 195 (Ch. Div. 1998).]
“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” [Elrod v. Burns, 427 U.S. 347, 359 (1976).]
“More than financial contests, custody and parenting time disputes trigger the need for a family judge, acting as parens patriae, to prevent harm and protect the best interests of children. In fact, interference with custody and parenting time may immediately and irreparably impact the best interests of a child and often represent classic cases necessitating court review.” [Parish v. Parish, 412 N.J. Super. 39 (App. Div. 2010).]
THE LEGAL RIGHTS UNDERLYING THE CLAIM MUST BE SETTLED
Despite this general rule, an exception exists “where the subject matter of the litigation would be destroyed or substantially impaired if a preliminary injunction did not issue.” [Gen. Elec. Co. v. Gem Vacuum Stores, Inc., 36 N.J. Super. 234, 236 (App. Div. 1955).]
Notably, this “settled legal right” prong is sometimes merged with the “reasonable probability of success on the merits” prong, but sometimes it is analyzed separately.
Notably, Courts will sometimes merge the “settled legal right” prong with the “reasonable probability of success on the merits” prong and analyze them together. At other times, however, they are analyzed separately.
THERE MUST BE A REASONABLE PROBABILITY OF SUCCESS ON THE ULTIMATE MERITS
Thus, to prevail on an application for a preliminary injunction, a plaintiff must demonstrate a reasonable probability of success on the merits. [Crowe v. DeGioia, 90 N.J. 126, 133 (1982).]
This requirement, however, “is tempered by the principle that mere doubt as to the validity of the claim is not an adequate basis for refusing to maintain the status quo.” [Crowe v. DeGioia, 90 N.J. 126, 133 (1982).]
In fact, “[t]he point of temporary relief is to maintain the parties in substantially the same condition ‘when the final decree is entered as they were when the litigation began.’” [Crowe v. DeGioia, 90 N.J. 126, 133 (1982).]
In at least one widely-discussed case, the Appellate Division reversed a Trial Court’s refusal to grant injunctive relief despite expressly finding that there was no reasonable probability of success on the ultimate merits. The Appellate Division reiterated that Courts may employ a “less rigid approach” when the relief is designed merely to preserve the status quo. [Waste Management v. Morris County, 433 N.J. Super. 445 (App. Div. 2013).] More discussion of the “less rigid approach” is set forth below.
THE RELATIVE HARDSHIP TO THE PARTIES MUST FAVOR GRANTING RELIEF
SHOULD NOT HARM PUBLIC INTEREST
Indeed, the Courts “have recognized the important role the public interest plays when implicated … and have held that courts, in the exercise of their equitable powers, may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved.” [Waste Management v. Morris County, 433 N.J. Super. 445 (App. Div. 2013).]
Divorce litigation, however, is almost always only between two private individuals (i.e., the divorcing couple). It is difficult to conceive of a scenario where the public would have any interest whatsoever in the outcome of a divorce proceeding. Therefore, the “public interest” requirement is almost always irrelevant.
Notably, Courts will sometimes merge the “public interest” prong with the “balancing the relative hardships” prong and analyze them together. At other times, however, they are analyzed separately.
CLEAR AND CONVINCING EVIDENCE GENERALLY REQUIRED
Thus, generally, the Court must find clear and convincing evidence that relief is warranted. [Am. Employers’ Ins. Co. v. Elf Atochem N. Am., 280 N.J. Super. 601, 611 (App. Div. 1995).]
Clear and convincing evidence is a high burden of proof that falls “somewhere between” the ordinary civil standard (preponderance of the evidence) and the ordinary criminal standard (beyond a reasonable doubt). [Aiello v. Knoll Golf Club, 64 N.J. Super. 156 (App. Div. 1960).] Such proof “should produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” [Matter of Purrazella, 134 N.J. 228, 240 (1993).] The proofs must be “so clear, direct and weighty and convincing as to enable a judge or jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” [Matter of Seaman, 133 N.J. 67, 74 (1993).] “It is questionable whether the standard can be adequately verbalized in greater detail.” [Aiello v. Knoll Golf Club, 64 N.J. Super. 156 (App. Div. 1960).]
LESS RIGID APPROACH SOMETIMES AVAILABLE
Indeed, “[i]n acting only to preserve the status quo, the court may place less emphasis on a particular Crowe factor if another greatly requires the issuance of the remedy.” [Brown v. City of Paterson, 424 N.J. Super. 176, 183 (App. Div.2012).]
“[T]he reason we consider whether a movant’s right to injunctive relief is clear doubtless lies in the fact that an interlocutory injunction is so drastic a remedy. But there are exceptions, as where the subject matter of the litigation would be destroyed or substantially impaired if a preliminary injunction did not issue.” [Waste Management of NJ, Inc. v. Morris County Mun. Utilities Authority, 433 N.J. Super. 445 (App. Div. 2013).]
“The power to impose restraints pending the disposition of a claim on its merits is flexible; it should be exercised whenever necessary to subserve the ends of justice, and justice is not served if the subject-matter of the litigation is destroyed or substantially impaired during the pendency of the suit.” [Waste Management of NJ, Inc. v. Morris County Mun. Utilities Authority, 433 N.J. Super. 445 (App. Div. 2013).]
“This less rigid approach, for example, permits injunctive relief preserving the status quo even if the claim appears doubtful when a balancing of the relative hardships substantially favors the movant, or the irreparable injury to be suffered by the movant in the absence of the injunction would be imminent and grave, or the subject matter of the suit would be impaired or destroyed.” [Waste Management of NJ, Inc. v. Morris County Mun. Utilities Authority, 433 N.J. Super. 445 (App. Div. 2013).]
Andrew M. Shaw, Esq. is the author of this New Jersey Divorce Guide and the founder of Shaw Divorce & Family Law LLC in Somerville, New Jersey.
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- American Bar Association - Family Law Section
- New Jersey State Bar Association – Family Law Section
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