Rules of Domestic Relations Procedure

Rules of Domestic Relations Procedure Domestic Relations Procedure Rule 56: Summary judgment

Effective Date: 05/01/2009
Updates: Adopted October 10, 1997, effective December 1, 1997 Amended October 27, 1999, effective January 1, 2000
Amended June 5, 2003, effective September 2, 2003 Amended April 1, 2009, effective May 1, 2009

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(a) Motions for summary judgment

A party may move for summary judgment subsequent to the commencement of any proceeding under these rules except in actions for divorce or in actions for custody or visitation or for criminal contempt. Each motion for summary judgment shall be accompanied by a "Affidavit of Undisputed Facts" which shall enumerate discretely each of the specific material facts relied upon in support of the motion and cite the particular portions of any pleading, affidavit, deposition, answer to interrogatories, admission or other document relied upon to establish that fact. The motion shall be served at least ten (10) days before the time fixed for the hearing. The moving party shall be responsible for filing with the Court all evidentiary documents cited in the moving papers. The motion for summary judgment shall be denied if the moving party fails to file and serve the affidavit required by this paragraph.

(b) Opposition

Any party opposing a motion for summary judgment shall file and serve no later than three (3) days before the time fixed for the hearing, unless the court otherwise orders, an affidavit using the same paragraph numbers as in the "Affidavit of Undisputed Facts" and admit those facts which are undisputed and deny those which are disputed, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, answers to interrogatories, admission or other document relied upon in support of the denial. The opposing party may also file a concise "Affidavit of Disputed Facts," and the source thereof in the record, of all additional material facts as to which there is a genuine issue precluding summary judgment. The opposing party shall be responsible for the filing with the court of all evidentiary documents cited in the opposing papers. If a need for discovery is asserted as a basis for denial of the motion, the party opposing the motion shall provide a specification of the particular facts on which discovery is to be had or the issues on which discovery is necessary.

(c) Stipulated facts

All interested parties may jointly file a stipulation setting forth a statement of stipulated facts to which all interested parties agree. As to any stipulated facts, the parties so stipulating may state that their stipulations are entered into only for the purposes of the motion for summary judgment and are not intended to be otherwise binding.

(1) In any pending motion for summary judgment, the assigned judge may order the parties to meet, confer and submit, on or before a date set by the assigned judge, a joint statement of undisputed facts.

(d) Deleted

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(e) Form of affidavits; further testimony; defense required

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in any affidavits shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

(f) When affidavits are unavailable

Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

(g) Affidavits made in bad faith

Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which filing of the affidavit caused him to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.

(h) Judgment

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and responses to requests for admission under Rule 36, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Summary judgment, when appropriate, may be rendered against the moving party.

Reporter's notes

(2009) The amendment will allow for summary judgment in all cases exclusive of divorce actions, actions for custody or visitation or actions for criminal contempt.

(2003) The amendment to Rule 56(h) deletes the phrase “on file” from the first sentence in recognition that discovery documents are generally no longer filed separately with the court. See Rule 5(d)(2). The previous reference to admissions has also been replaced by a reference to “responses to requests for admission under Rule 36.”

(2000) As originally promulgated, rule 56(b) did not require the party opposing a motion for summary judgment to file an affidavit. Rather, it required the opposing party to reproduce the itemized facts contained in the “Affidavit of Undisputed Facts” and admit those facts which were undisputed and deny those which were disputed. The amendment to rule 56(b) rectifies this problem by requiring the party opposing the motion for summary judgment to file and serve, no later than three (3) days before the time fixed for the hearing, an affidavit reproducing the itemized facts contained in the “Affidavit of Undisputed Facts.”

(1997) Rule 56 introduces summary judgment for the first time to domestic relations procedure. The rule allows a party to move for summary judgment in actions for modification and actions to modify or enforce a foreign judgment. Rule 56(h) allows summary judgment only if there is “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

Rule 56(a) requires that each motion for summary judgment be accompanied by an “Affidavit of Undisputed Facts” which sets forth the material facts relied upon in support of the motion. If the moving party fails to file and serve the affidavit, the summary judgment motion will be denied.

The party opposing the motion for summary judgment shall reproduce the “Affidavit of Undisputed Facts” and shall admit those facts which are undisputed and deny those which are disputed. The opposing party has the option of filing an “Affidavit of Disputed Facts” enumerating all additional material facts where there is a genuine issue which would preclude summary judgment.

Rule 56 allows parties to jointly file a statement of stipulated facts. If they do so, they may state that the stipulation is only for the purpose of the motion for summary judgment and is not intended to be otherwise binding. The rule also allows the judge to order the parties to meet and submit a joint statement of undisputed facts.

Sections (e), (f) and (g) of Rule 56 address the form of the affidavits, when an affidavit is not available, and sanctions for falsely made affidavits.

Downloads for Domestic Relations Procedure Rule 56: Summary judgment

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Updates: Adopted October 10, 1997, effective December 1, 1997 Amended October 27, 1999, effective January 1, 2000
Amended June 5, 2003, effective September 2, 2003 Amended April 1, 2009, effective May 1, 2009
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