Adjournment Requests in Divorce Litigation: Be Kind

New York Law Journal

Founded by a Marine in 2017, the “Til Valhalla Project” has donated over $1 million to #Mission22 as part of the fight against veteran suicide. This year, the project rolled out a simple message: “Be Kind.” The foundation of the message is straightforward: “With each kind act, we make the world a little bit better.”

On the subject of kindness, we turn to requests for adjournments in matrimonial practice. Requests for adjournments from your opposing counsel (also known as your adversary) are a routine occurrence. Sometimes you may have double-booked. Other times, you might find yourself overwhelmed on one matter and in need of an adjournment on another matter. Or, you might request an adjournment so that you do not miss a milestone involving a family member. And then, there are those times that a request for an adjournment is made for personal reasons, be it due to issues of physical, or mental health.

The question becomes whether and under what circumstances do you, as the recipient of the request for an adjournment, say “yes” or “no.” Once again, no training was provided to us in law school on how to answer this question.

To evaluate how to address requests for adjournments in matrimonial practice, this author urges you to read, and learn, from what happened in the matter of Tucker v. Lantmännen Unibake USA, (U.S. Dist. Ct., Dist. of Maine, 5/30/23). At first blush, you might be asking what a decision by a federal court in Maine involving an age and gender discrimination lawsuit against a company specializing in artisan bread and Danish pastries has to do with adjournment requests in New York state matrimonial proceedings. But you would be wrong to disregard this decision, which was addressed in this Journal in June 2023.

In my commercial litigation days, I experienced firsthand how the practice of law can be a compassionless forum. Being reputed for a lack of compassion is not a badge of honor. You can be a supremely zealous advocate while at the same time appreciating the fragility of the human condition in the process.

Indeed, when my COVID nightmare befell me in January 2021, a colleague advised me to clear the decks and immediately adjourn every one of my deadlines by months. When I forthwith requested adjournments to the tune of three months, not knowing what my condition would be, not one of my formidable adversaries blinked. The answer was uniformly “yes.” You know who you are, and I’m forever grateful for your kindness during that time.

Perhaps this is why I am so dismayed by what transpired in the Tucker case. Having lost someone deeply special to me to cancer admittedly compounds my strong reaction. In Tucker, Ms. Rinda Tucker sued her former employer (Lantmännen) for age and gender discrimination. I will not burden you with all of the procedural nuance; in short, in the context of Lantmännen’s motion for summary judgment, Tucker’s attorney, Guy Lorganer, “failed to timely file a statement of additional material facts because he was undergoing treatment for a recurrence of cancer.”

When Loranger filed a motion for leave to file his statement of material facts, defendant Lantmännen objected. Specifically, “While expressing sympathy for attorney Loranger’s medical issues, Lantmännen strenuously objects to the motion for late filing.”

Before we proceed further, I cannot help but notice that “strenuously objects” sounds eerily similar to Demi Moore’s strenuously—and legendarily—disastrous objection in “A Few Good Men.’ Whether or not Judge Woodcock Jr. had this in mind when he wrote the Tucker decision, I do not know.

Lantmännen bemoaned a “delay of seven months” as a basis to deny Loranger’s motion for leave. Lantmännen concluded that the delay could only mean that Tucker’s attorneys did not “actually read the defendant’s reply.” Finally, Lantmännen claimed it would be prejudiced “by having to respond to the plaintiff’s statement of additional material facts; by having to reassess its strategic decisions and rewrite its reply; and by incurring additional delay.” Practice pointer: it’s best not to impress upon a court that you are, in effect, terrified of additional information coming into the record, be it evidentiary material at trial or a statement of additional material facts on a motion for summary judgment.

Now for the factual background that will put everything in context: Loranger was diagnosed with cancer, working part-time, and “actively undergoing chemotherapy treatment when [Tucker’s] opposition to the motion for summary judgment was due.” In April 2022, Loranger “had a recurrence of cancer and his treatment plan involved 12 two-week cycles of chemotherapy, covering a total of 24 weeks, and radiation.” Loranger stated that “he and his oncologist decided to pause the last two cycles because both physically and mentally, he needed a break from treatment.” Loranger stated that “he and his oncologist decided to suspend treatment” and that “he was exhausted at the completion of the Tucker opposition.” The court found that Loranger’s “recurrence of cancer and his need for intensive treatment” was “facially valid and fits within the concept of excusable neglect.”

The court concluded that “Attorney Loranger’s excuse is much more compelling than mere ‘inattention or carelessness,’ which typically does not constitute excusable neglect.” Critically, citing a prior decision of the same court, the decision provides as follows: “lawyers are human beings; they make mistakes and omissions that can amount to neglect of their professional responsibilities. But that does not make all such neglect ‘excusable.’ Something more is required. Here, cancer and cancer treatment meet the requirement for ‘something more.’”

It therefore should come as no surprise that the court “infers that Loranger’s neglect was likely due to an incapacity or distraction caused by his recurrent cancer or his treatment.”

There is something troubling about the fact that rather than state that Loranger’s missed deadline was “excusable,” the law still feels the need to characterize it as excusable “neglect.”

Neglect implies careless wrongdoing. Loranger did not engage in wrongdoing.

Of course, there will be times, in divorce litigation, when you receive a request for an adjournment that merits a “no,” e.g., a request for an adjournment designed to enable a party’s bad conduct to continue. As but one glaring example, the father who refuses to pay child support but wants an adjournment of the return date for the mother’s motion for an immediate award of child support; that type of adjournment request merits a “no.”

In law school, we were taught about the “reasonable person” standard in the context of negligence claims (torts). Specifically, negligence claims are to be adjudicated by asking what an ordinary person with basic intelligence would do under the circumstances.

With that in mind, when your opposing counsel asks for an adjournment in divorce litigation, ask yourself this: “What would a reasonable person do?” If you find yourself struggling to come up with an answer, go back and read the Tucker decision. The lessons to be learned from Tucker will no doubt get you to the right answer.

“Adjournment Requests in Divorce Litigation: Be Kind,” by Alan Feigenbaum was published in the New York Law Journal on July 17, 2023.

Reprinted with permission from the July 17, 2023, edition of the New York Law Journal © 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.