Fungaroli v. Fungaroli

PETITIONER: Robert Michael Fungaroli
RESPONDENT: Judith Diane Fungaroli
LOCATION: Elkhart, Indiana

DOCKET NO.: 79-492
DECIDED BY: Burger Court (1975-1981)
LOWER COURT:

CITATION: 446 US 930 (1980)
ARGUED: Apr 16, 1980
DECIDED: May 12, 1980

ADVOCATES:
B. Ervin Brown, II - on behalf of the Appellee
John F. Morrow - on behalf of the Appellant

Facts of the case

Question

Media for Fungaroli v. Fungaroli

Audio Transcription for Oral Argument - April 16, 1980 in Fungaroli v. Fungaroli

Warren E. Burger:

We will hear arguments first this morning in Fungaroli v. Fungaroli.

Mr. Morrow, I think you may proceed whenever you are ready.

John F. Morrow:

Mr. Chief Justice, may it please the Court.

We are here this morning arguing a case to the effect that a North Carolina alimony-type Statute, specifically stating in the Statute that notice to the defendant is not required of temporary alimony hearings, is unconstitutional.

William H. Rehnquist:

Mr. Morrow, may I ask you, your Opponents claim that you did not raise that as a Federal Constitutional Fourteenth Amendment claim in the North Carolina Courts and my own reading of the Opinion of the Court of Appeals for North Carolina indicates that they say you said it was invalid, as not giving notice of the hearing they don't mention any federal case or federal constitutional provisions.

Did you before them or before the Trial Court put an issue on federal constitutional grounds of this provision?

John F. Morrow:

Now of course, we were not before the Trial Court because there was no notice of the hearing.

I was not the counsel at that time by the way.

William H. Rehnquist:

OK, how about the --

John F. Morrow:

But yes, we did raise it on appeal, I think that our assignments of errors and our Brief before the North Carolina Court of Appeals will clearly show you that.

The Court of Appeals, I simply contend to you ignored the issue, as did the Supreme Court of North Carolina, when they ruled it to be a frivolous appeal.

In North Carolina, of course, if you have a constitutional issue, you supposedly have an appeal as a matter of right to our Supreme Court.

Warren E. Burger:

-- is a frivolous issue, or is it that the appeal raised no constitutional questions.

Which was their holding?

John F. Morrow:

The way I understand the ruling is that it was a frivolous issue.

The question was there.

But as they looked at the case, the question really wasn't there.

Warren E. Burger:

Is there a time limit, either under the Rules of the Court or the Statute for the period in which that temporary order can be extant, without notice?

John F. Morrow:

For a period of -- I'm sorry.

Warren E. Burger:

Is there a time limit?

Thirty days?

Sixty days?

John F. Morrow:

As to how long the order is good?

Warren E. Burger:

That's right.

John F. Morrow:

Absolutely not.

In other words --

Warren E. Burger:

Many courts, for example on temporary restraining orders have a return day when it must be returned or the court imposes a return day.

John F. Morrow:

We try to discuss that in some detail in our Brief to point out to you that the order is entered and then at that time, whenever the defendant is notified, it's up to him as to whether or not to go to court and with the burden of proof to try to set that order aside that is, the order issued under the Statute which we are attacking.

William H. Rehnquist:

For our purpose, we really needed to know, I suppose, the contents of your Brief before the North Carolina Court of Appeals.

Is that in the record here?