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Pertinent Information As It Relates To New Jersey Family Laws

TRIAL COURT FOUND TO HAVE DENIED DUE PROCESS RIGHTS TO PRO SE LITIGANT IN DOMESTIC VIOLENCE MATTER

Posted in Domestic Violence, Practice Issues

Law is never easy.  Practicing law can be even less so.  How about going it on your own without an attorney?  Not everyone may know that a “pro se” litigant acting on his or her own behalf is expected to know all of the rules and law that apply to their given case.  However, going through the process of litigation, let alone appearing in court and proceeding through a trial, can be overwhelming for even the most knowledgeable of self-represented litigants (not to mention some licensed attorneys).

What happens, then, in a case where the self-represented litigant is denied the ability to question a witness and present his case?  That was the scenario in C.H. v. J.S., a newly unpublished (not precedential) decision from the Appellate Division where a final restraining order entered against a defendant in a domestic violence matter was vacated due to a lack of sufficient evidence and based on a finding that the “procedures employed at trial deprived defendant of fundamental due process.”

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The known facts are sparse.  The plaintiff asked for a final restraining order based on her alleging that defendant (her former dating partner) engaged in criminal harassment by sending plaintiff a series of “six or seven ranting text messages” calling her names and suggesting that he intended to post private videos of her on the Internet.  She further claimed that he had made such threats before, wanted to end the conduct and, when questioned by the trial judge during the final hearing, indicated that “once something goes on the Internet it doesn’t come off the Internet.”

The judge asked the defendant if he had any questions for the plaintiff, to which the defendant responded to the effect that he did not know.  The judge then asked the defendant if he disputed having the alleged conversation with the plaintiff and sending the subject emails, to which defendant responded that he was hurt by the plaintiff breaking up with him a third time, said things he didn’t mean, but that she knew he would never do such things to her.  The judge then ended the hearing, deemed the defendant’s response to his question an admission of harassment, and implemented the final restraining order.

Notably, while the trial judge was detailing on the record the provisions of the FRO, the defendant objected and indicated that he was unable to ask several questions that he had (to which the judge responded such questions could be posed after the Order was issued), and that he was unable to cross-examine the plaintiff as to her allegations and his defenses.

On appeal, the Appellate Division first concluded that there was insufficient evidence that the defendant had committed an act of criminal harassment and, more specifically, that he had a purpose to harass the plaintiff.  It is at that point where the decision gets interesting, as the Appellate Division strongly concluded that the defendant was denied his fundamental due process rights by what transpired:

Even more important, we conclude defendant’s fundamental rights to be heard were trampled by the hearing procedures employed. A litigant in civil proceedings is entitled to a fair hearing, imbued with the protections of due process. See A.B. v. Y.Z., 184 N.J. 599, 604 (2005); H.E.S. v. J.C.S., 175 N.J. 309, 321-23 (2003).  The due process guarantee expressed in the Fourteenth Amendment to the United States Constitution requires assurance of fundamental fairness during legal proceedings. U.S. Const. amend. XIV, § 1. This includes the opportunity to be heard and requires “procedural safeguards including the right to cross-examine adverse witnesses and the right to call witnesses . . . .” Peterson v. Peterson, 374 N.J. Super. 116, 124 (App. Div. 2005).

It is clear from this hearing transcript defendant was not given the chance to meaningfully respond to plaintiff’s allegations and was never permitted to present evidence, including witnesses or documents he believed supported his defense.  Rather, the judge concluded the hearing when he understood defendant’s response amounted to an admission that satisfied plaintiff’s elements of proof.

We recognize these matters are summary in nature, which may be accompanied by some relaxation of formal trial procedures, such as requiring a party to stand when addressing the court or requiring witnesses to take the stand. We are also aware of the limited need of trial judges to aid the trial process by initiating examination. However, we will not condone the relaxation in trial formalities that deprive due process.

Many litigants who come before our courts in domestic violence proceedings are unrepresented by counsel; many are unfamiliar with the courts and with their rights. Sifting through their testimony requires a high degree of patience and care. The pressures of heavy calendars and volatile proceedings may impede the court’s willingness to afford much leeway to a party whose testimony may seem disjointed or irrelevant. But the rights of the parties to a full and fair hearing are paramount.

[M.D.F., supra, 207 N.J. at 481.]

Defendant was not afforded a “full and fair hearing,” which must be provided before entry of something as serious as a final restraining order. The July 9, 2014 order must be vacated.

The Court’s findings and conclusions as to due process were in the context of a domestic violence matter, but are not limited to that type of matter.  While self-represented litigants are, thus, expected to know the law, rules and procedure that apply to their matter, this decision guides trial courts and practitioners to ensure that such procedures are properly followed and notions of due process maintained in all types of litigation.

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Robert A. EpsteinRobert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group. Robert practices throughout New Jersey and is based in the firm’s Roseland, New Jersey office.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

Connect with Robert: Twitter_64 Linkedin

 

WHO’S YOUR DADDY?

Posted in child support, Paternity

In a recent case, Passaic County Board of Social Services on Behalf of T.M. v. A.S., the New Jersey Family Court encountered a unique set of facts.  A mother of two twin girls sought to establish the paternity of her daughters in order that the father would be obligated to commence paying child support.  She named the defendant, A.S., as the father and he submitted to DNA testing.  As it turned out, the DNA test established that A.S. was the father to only one of the twin girls.  The twins had been fathered by two different people, known as “bipaternal twins,” a rare medical phenomenon.

I think most people would agree that the DNA result in this case merits a “huh?” and Judge Mohammed, who rendered the decision in this case, thought so too.   In general, the court observed, the DNA testing process is scientifically sound and very reliable.  However, Judge Mohammed also recognized that under the law, the results of genetic testing create a rebuttable presumption as to paternity.  In other words, even if a DNA test says John Doe is the father, John Doe can still try to disprove those results.  But how do you argue with science?  And should you?

As to the first question, Judge Mohammed’s opinion indicates that you argue with science by questioning the standards and methods used by the DNA specimen collection facility and the testing lab.   Maybe someone along that chain of custody messed up, or maybe the procedures employed by the collection facility or lab are not sound.  Focusing on the sampling, handling, processing, and analysis of DNA, Judge Mohammed set forth several factors to consider when one party questions DNA testing results, as follows:

1) The methods employed and conditions under which the DNA specimen was obtained;

2)  The training, skill, and judgment of DNA handlers;

3)  Whether adequate procedures were in place for specimen collection, storage, transportation, sampling, handling and processing of DNA tests;

4)  “Chain of custody” considerations;

5)  Any evidence of tampering, hacking, user bias, or other external interference calling into question the integrity of the test result;

6)  Whether the testing laboratory adhered to scientifically acceptable, reliable, and established DNA testing and methodology standards;

7)  The ability of the handlers to replicate test results submitted to the court; and

8)  Access to and handling of information regarding abnormal or irregular results, or those collected in error.

If the standards and practices of the collection facility and the lab are sound, and there was no departure from those standards and practices, then the DNA test must be considered reliable evidence.  But maybe the collection facility contaminated the sample, or maybe the lab did not properly store the sample.  Then there might be a good reason for the court to decline to rely on a particular DNA test.

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As to the second question – whether you should argue with a DNA test or not – Judge Mohammed seems to say that, yes you should – but only if the results are cause for a double take.  Generally speaking, Judge Mohammed writes, “a medical or scientific innovation or rarity should not create judicial uncertainty.” In other words, people should trust the results of a DNA test, and if they don’t, then the Court should question the methods used by applying the eight factors listed above.  As Judge Mohammed eloquently put it in the context of the case,

“Given the rarity of this medically acceptable phenomena, coupled with the general public’s lack of awareness, it is not unreasonable to expect that when one is confronted with the DNA test results that show each twin in a given case has a different father, an overwhelming majority will likely express sheer disbelief.  This in turn will give rise to lack of confidence in the results.  One may begin to question whether DNA is truly a valid indicator or “snapshot” of one’s identity.”

And in the context of family law cases – specifically, paternity issues – questioning a curious DNA result will be critical to the child at issue.  As Judge Mohammed emphasized, courts across the country, including New Jersey, “have recognized the profound right of a child to know the identity of his or her parents.”  Our courts have recognized a child’s right to feel “rooted” and know his or her true origins, not only for psychological and emotional reasons, but also for the purpose of medical treatment and genealogical history.  It is the court’s job to ensure that the best interests of the child are served, and it is also the court’s duty to act as gate-keeper of evidence.  The court must question the reliability of DNA testing by evaluating the integrity and reliability of the test results rather than blindly accept DNA results that are cause for skepticism.


headshot_diamond_jessicaJessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

Be One of Our ABA Blawg 100 Amici!

Posted in Other

Every year, the ABA Journal invites nominations for its Blawg 100 list, a compilation of staff and reader “favorites” within the legal blogosphere. The rigorous selection process for the 2015 list has begun, with the magazine calling for recommendations from “Blawg Amici” – regular readers who wish to support and spread the word about their favorite legal blogs.

Here’s a sampling of posts from the past year:

If you have enjoyed and valued our updates during the past year and believe the NJ Family Legal Blog deserves a spot in the top 100, we invite you to take a few moments to nominate us. The online nomination process is very quick – it shouldn’t take more than a minute or so.

Blawg Amici nominations will be accepted until 11:59 p.m. CT on August 16, 2015. Thank you in advance for your support!

J is for Justifying a Deviation from the Child Support Guidelines

Posted in child support, Practice Issues, Property Settlement Agreements, Uncategorized

Your lawyer has just told you what you are likely to receive for child support and your jaw has dropped because you know the amount comes nowhere near the actual cost of supporting the children. How then, do you get your soon-to-be ex-spouse to pay what you consider to be a fair amount for the children?

In a recent unreported decision, the court ordered an enhanced amount of child support ($50,000) but was then reversed on appeal because the judge failed to conduct an analysis and explain why he deviated from the formula which is used to calculate support for children.

In the vast majority of cases, child support is determined through the use of a formula known as the New Jersey Child Support Guidelines, which are found in Appendix IX-A of the Court Rules. This formula is a rebuttable presumption in both establishing and modifying all child support orders. Under the court rules, the Guidelines have to be applied in all matters whether contested or not. The court rules contain 53 pages of really small print explaining how they work. But generally, the idea is that each parent is responsible for a portion of the cost of raising children and the amount it costs to raise children is based on statistical averages throughout the state, depending on the parents’ combined income.

For cases in which the parents’ combined income is over the poverty line, and below $187,200 net, the guidelines apply, and the appropriate child support amount is applied to the case.  If the combined income is over that amount, then the Guidelines are applied, and an additional amount is added. The amount that is added is based on the remaining family income and the following factors:

(1) Needs of the child;

(2) Standard of living and economic circumstances of each parent;

(3) All sources of income and assets of each parent;

(4) Earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children including the cost of providing child care and the length of time and cost of each parent to obtain training or experience for appropriate employment;

(5) Need and capacity of the child for education, including higher education;

(6) Age and health of the child and each parent;

(7) Income, assets and earning ability of the child;

(8) Responsibility of the parents for the court-ordered support of others;

(9) Reasonable debts and liabilities of each child and parent; and

(10) Any other factors the court may deem relevant.

When a parent believes that the number under the Guidelines is inappropriate (even when income does not exceed $187,200), the court has discretion to deviate from that amount if circumstances exist such that the guidelines amount is unfair.  The court can take the following factors into consideration when deviating from the Guidelines:

(1) equitable distribution of property;

(2) income taxes;

(3) fixed direct payments (e.g. mortgage payments);

(4) unreimbursed medical/dental expenses for either parent;

(5) tuition for children (i.e. for private, parochial, or trade schools, or other secondary schools, or postsecondary education);

(6) educational expenses for either parent to improve earning capacity;

(7) single-family units (i.e. one household) having more than six children;

(8) cases involving voluntary placement of children in foster care;

(9) special needs of gifted or disabled children;

(10) ages of the children;

(11) hidden costs of caring for children such as reduced income, decreased career opportunities, loss of time to shop economically, or loss of saving;

(12) extraordinarily high income of a child (e.g. actors, trusts);

(13) substantiated financial obligations for elder care that existed before the filing of the support action;

(14) the tax advantages of paying for child health insurance;

(15) one obligor owing support to more than one family (e.g. multiple prior support orders);

(16) the motor vehicle purchased or leased for the intended primary use of this child subject to the support order;

(17) parties sharing equal parenting time; and

(18) overnight adjustment for multiple children with varying parenting time schedules.

This list is not exhaustive. There are several other reasons why the Guidelines can be deviated from.  The important thing is to build a case which addresses any and all reasons to deviate from the Guidelines-up or down.  When there are extenuating circumstances, it is critical to compile documents and information which substantiate the claim. While there is certainly no guarantee, the Perry case demonstrates that judges are willing to consider the issue, but have to be given the correct information.

Jennifer Weisberg MillnerJennifer Weisberg Millner is a partner in Fox Rothschild LLP’s Family Law Practice Group. Jennifer is resident in the firm’s Princeton Office, although she practices throughout the state. Jennifer can be reached at 609-895-7612 or jmillner@foxrothschild.com.

How to divide an Island and other wedding gift questions

Posted in equitable distribution, Practice Issues, Property Settlement Agreements

The BBC has recently reported that Cristiano Ronoldo, the soccer superstar, has given his agent a Greek Island for a wedding gift. While a Greek island may not be the typical wedding gift for most couples, the question of how the wedding gifts are divided in the event of a divorce certainly comes up often.

New Jersey, as well as the majority of states, considers all property that was acquired during the marriage to be subject to equitable distribution. This includes property which is obtained in contemplation of the marriage. Many clients like to take the position that she gets whatever gifts came from her side of the aisle and he gets whatever gifts came from his side of the aisle. Well, if the parties agree to this, fine. But if not, it’s all up for grabs. This does not mean you have to break up the 12 place setting of Lenox, but there has to be a fair distribution. So maybe one gets the Lenox and the other gets the Waterford Crystal.

Dividing personal property can be one of the most emotional parts of a marriage’s demise.  It’s one of those “hit you in the face,” “this is really happening” moments of the divorce. Unfortunately, it is a component of the divorce which can be used as a means to show the anger and hurt of the dissolution. When one spouse knows that something is meaningful to the other, it is sometimes used as a weapon.

That having been said, equitable distribution does not mean equal distribution. Rather, other factors will be taken into consideration when determining what a reasonable distribution of property, including wedding gifts, is. One factor which may be important is how soon after the wedding is the termination of the marriage occurring. In a situation in which a marriage falls apart shortly after the nuptials, it may be appropriate to have a disproportionate distribution of assets, including wedding gifts. On the other hand, 10 years and two kids later, the more equal distribution may likely occur.

Getting through distribution of property can be difficult for all involved. This includes the parties, the lawyers, the judges, and the children. Hopefully, a cool Meltemi Greek wind will blow in the right direction and calm things down rather than churn them up.

Jennifer Weisberg MillnerJennifer Weisberg Millner is a partner in Fox Rothschild LLP’s Family Law Practice Group. Jennifer is resident in the firm’s Princeton Office, although she practices throughout the state. Jennifer can be reached at 609-895-7612 or jmillner@foxrothschild.com.

Staying Together for the Kids- Maybe not such a great idea

Posted in Custody, Divorce

Oftentimes clients say that they are waiting until after high school or college graduation to get a divorce so that the child or children do not have to experience a divorce.  A lofty goal in most cases in which at least one party is dreadfully unhappy. Yet as they say, the road to you know where is paved with good intentions and this may be another example.

Recently, I read a column in which the writer said that she was glad her parents split when she was a young teenager, and I was reminded of several studies that have come out over the years in which children who were interviewed said that they wish their parents had divorced before they actually did.

The fact of the matter is that kids are smarter and far more intuitive than we give them credit for.  They know far more than we want them to- don’t think for an instant that they don’t know that mom and dad are having marital problems.  And it scares them. Moreover, particularly pre-teens and teens feel as if they are caught in the middle.  When mom and dad are actively fighting on a regular basis, collateral damage can occur in the way of stress, poor schoolwork, and attention seeking behaviors.  We are finding out that kids would sometimes rather have a plan going forward rather than uncertainty, and ideally, have two happy households to go to rather than one miserable one.

Parents who are contemplating a divorce need to take the path which is best for them, which in turn may be best for the kids.  This answer is not the same for every person.  Waiting may be the best option, and it may not. Talking to a mental health professional who has experience with children of divorce can be instrumental in timing the decision

 

Jennifer Weisberg MillnerJennifer Weisberg Millner is a partner in Fox Rothschild LLP’s Family Law Practice Group. Jennifer is resident in the firm’s Princeton Office, although she practices throughout the state, including South Jersey. Jennifer can be reached at 609-895-6712 or jmillner@foxrothschild.com

BE CAREFUL WHAT YOU WISH FOR…BECAUSE YOU JUST MIGHT GET IT

Posted in alimony, child support, Divorce, Interspousal Agreements, modification, Practice Issues, Property Settlement Agreements

As a matter of public policy, New Jersey Courts favor the enforcement of agreements reached between parties. Since Marital Settlement Agreements (“MSA”) are entered into consensually and voluntarily, they are often approached with a predisposition in favor of their validity and enforceability.  That notwithstanding, these agreements are enforceable only if they are fair and equitable. A bedrock principle of New Jersey divorce jurisprudence is that parties may be able to modify support provisions within their divorce agreements if they are able to show a continuing change of circumstances.

Although the ability to modify agreements based on a change of circumstances is essentially the default so to speak, parties are free to contract around same. Often times in exchange for additional financial considerations, such as unequal asset division or a “discount” on alimony, parties will agree that the amount of years alimony is paid and/or the actual amount of alimony paid each year is non-modifiable regardless of a change of circumstances, foreseeable or otherwise.

Unfortunately all too often parties are entering into agreements that are “non-modifiable” without really thinking through the consequences of same in an effort to “get the deal done” only to have it come back to haunt them.  This is exactly what happened to Mr. Fiorenza in the recent unpublished (non-precedential) case of Fiorenza v. Fiorenza.

In Fiorenza, the parties were married for 24 years and had three children. At the time of their divorce, they were able to come to a resolution regarding the Husband’s alimony and child support payments and agreed that Husband would pay $100,000 per year in alimony ($8,333/per month) and $833.00 per month in child support. Shortly after the divorce however, Husband stopped paying support and Wife filed an application to enforce the support provisions of the parties’ divorce agreement.

The parties were able to resolve their differences and entered into a Consent Order, which lowered Husband’s total support obligation to $5,000 per month ($833.00 of which would be considered child support), included an escalation clause that support would go up if his income did and vacated $10,000 in support arrears.  The parties also agreed however that the new support amount would be non-modifiable and included that if there was a default on this new payment structure, that the total support amount would revert back the original amount under the parties initial MSA. Specifically, the parties agreed:

No matter defendant’s annual gross income, at no time shall monthly support be lower than $5,000, except after the emancipation of [the parties’ youngest child] when the child support component may be reduced”.

After the entry of the Consent Order, Husband made the new support payments for a period of one year but then again stop paying altogether.  Wife immediately filed an application to enforce the terms of the Consent Order and asked that the initial amount of support be reinstated.  In response, Husband cross-moved for a reduction in alimony.

Both the trial Court and Appellate Court upheld the parties’ agreement and increased the support payment back to the original amount in the parties’ MSA (due to Husband’s default on the new support payments) noting that each party got the “expected benefit and burden of the contract”. Because of Husband’s current inability to pay the full support amount however, the Court set a reduced alimony and child support figure of $2,500 per month and allowed the difference between the MSA support award of $8,333 and the $2,500 to accrue as arrears.

The take away from this case is that you should think long and hard before you include any non-modifiable provision in your divorce agreements and consult with an experienced attorney to discuss the ramifications of same. Although you might feel you are getting a tangible benefit in the present by agreeing to a non-modifiable provision, it is important to think through all the circumstances that may occur in the future that would complicate your ability to comply with same (such as loss of income/employment) as you cannot expect a Court to simply invalidate the terms of your settlement agreement because you now view them as unfair with the benefit of hindsight.

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Lauren Koster Beaver is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Lauren practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, premarital agreements and Appellate Practice. You can reach Lauren at (609) 844-3027, or lbeaver@foxrothschild.com.

CAN A COURT GRANT A CHILD’S REQUEST TO HUG HER FATHER?

Posted in Custody, Visitation/Parenting Time

Despite my reputation to the contrary, sometimes I am a softy – especially when it comes to children.  Maybe it is due to my own experiences as a child of divorce.  Whatever the reason, I read a case today that was heartbreaking and uplifting at the same time.

The case, R.R. v. L.A.C., an unreported (so far because it seems like it was submitted for publication) decision written by Judge D’Alessandro in Hudson County, starts as follows: “This case concerns the Court’s authority to fulfill a Child’s request to hug and see her Father.” When I read that, I have to admit that I did a double take because on its face, it seems like this was not a legal issue at all (and maybe it really isn’t).

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The opinion goes on to address the marriage of people who for various reasons, never spent much time together during their marriage, both before or after the birth of their daughter, who is now in 8th grade.  As a result, the daughter was primarily, if not exclusively raised by her mother or with family in Peru.  During a DCPP evaluation in the past, the child “expressed a poignant wish: ‘to have a Dad.’ Her wish was not fulfilled.”  Just as home life was troubled, so was other areas of her life, as the court noted:

While flailing helplessly in the maelstrom of marital discord at home, Gabriela found no comfort at school. She was taunted and bullied because of her cleft palate, hearing loss and impaired speech. In desperation, Mother sent her back to Peru to live with her maternal Grandmother to escape the bullies and for medical treatment that she could not afford in the United States. Within a few months, Gabriela left her home in Peru for the United States; had her hopes for a family dashed; was bullied at school; and boarded a plane back to Peru without her Mother. Four months later, she returned to the United States at age 14. She is in therapy to ease the pain of separation, bullying, her many challenges and adolescent angst. She had cleft palate surgery. Surgical repairs, speech rehabilitation and dental restoration beckon.

At the divorce hearing, the Father requested a divorce, with the possibility of future parenting time “when I am ready.”  He did not know that his daughter was present in the courtroom.  The Judge noticed her in the courtroom and ultimately, when addressing the court:

Gabriela explained that she came here “to ask [the Court] if it is possible for him [Father] to see me once a week.” Gabriela hesitated before her evocative second request: “and I would like to give him a hug.”

The words in the opinion that followed were poignant:

A hungry person does not want a dissertation on the socio-economic causes of poverty. There will be time enough for that after the hunger pangs subside. A hungry person wants something to eat. Gabriela came to a Court believing that a Judge could and would help her. She did not seek an explanation of why some parents do not see their children. Gabriela stood courageously before strangers risking rejection, disappointment and more heartbreak if her requests were denied. Gabriela’s heart hungered to know and hug her Father.

The father still proclaimed not to be ready to see her.  What follows is what really started to tug at my heart strings.

Through colloquy with the Court, Father began to see things through his daughter’s eyes instead of his own. Father acknowledged that Gabriela was without him for most of her life wondering what she did wrong to explain his absence. He acknowledged that Gabriela might have been justifiably angry when she called him bad names in the past because she was unable to express her pain in a way that he approved of. Gabriela worried about her appearance, her prior surgeries and the surgeries to come. She suffered at school. She was depressed and attempted to harm herself. She was reminded why each time she spoke and whenever she saw her image in the reflection of her tears.

Before Gabriela returned to the courtroom, Mother said that she had a “gift” for Father. Her “gift” was to let him know that Gabriela is now considered a genius at school, and that she is a photographer and a poet whose poetry may soon be featured in the New York Times.

With that, the ice had melted.  The following is where I nearly lost it:

The Court then asked Father if he was ready to share the “gift” that was discussed while Gabriela was in chambers. Father quickly walked toward Gabriela as she rushed toward him. They sobbed heartily and hugged for a long time.

The opinion concluded with even more poignant words – the likes of which we seldom see in the battleground that is the family court:

Courage takes many forms and comes in all sizes. Gabriela’s courageous words were riveting. The tears that she and her Father shared were inspirational. Mother cried afterwards “that seeing my daughter happy makes me happy.” The Court thanks this beautiful child for her gift of hope. Tear-moistened soil is often fertile soil.

What a reminder of the resiliency and indomitability of spirit some children have.  What a reminder that it is never too late to re-establish a broken bond with your child.  What a reminder that a court should do whatever it can to prevent, if not stop (and if necessary, sanction) a parent that is taking actions (or allowing others to do so), which injure a child’s relationship with the other parent.  I have often said that childhood is fleeting.  Judge D’Alessandro’s thoughtful opinion is an excellent reminder of the importance of the parent-relationship.

Now I’m going home to hug my child.

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Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

Connect with Eric: Twitter_64 Linkedin

Photo credit: Copyright: <a href=’http://www.123rf.com/profile_lenm’>lenm / 123RF Stock Photo</a>

GNALL V. GNALL – WHAT STARTED WITH A BANG ENDED WITH A WHIMPER

Posted in alimony

As noted yesterday, the long awaited decision in the Gnall case was released today.  Previously, we have blogged about the Gnall v. Gnall case.  In this case, the Appellate Division deemed a 15 year marriage to be “long term” and remanded the matter for consideration of permanent alimony.  This case exploded onto the scene because it seemed to create a bright line that 15 years of marriage merited permanent alimony.

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However,  this case was decided before the new alimony reform statute had passed.  As I noted on this blog previously, there was a thought that the amendments to the alimony statute might render this much ado about nothing.  At the end of the day, it was much ado about nothing, but not because of the new statute, which was given very short shrift in the opinion.

Rather, the Justices, in a unanimous opinion, reiterated that all of the factors in the alimony statute must be considered, and no one factor can be elevated in importance.  One might say, “tell us something we don’t know.”

What was fascinating is the Supreme Court seemed to take both the trial court and the Appellate Division to task for focusing on one factor – duration of the marriage – to the exclusion of the others.  The Supreme Court noted:

… We find that the trial court did not consider and weigh all of the necessary factors required by N.J.S.A. 2A:34-23 in determining that permanent alimony was unwarranted but, instead, based its decision solely on N.J.S.A. 2A:34-23(b)(2). We further conclude that in reversing the Appellate Division inadvertently created a bright-line rule requiring an award of permanent alimony.

The Court went on to note that:

While the trial court identified the marriage as “not short-term,” it ultimately concluded that consideration of an award of permanent alimony was obviated by the parties’ relatively young ages and the fact that they were not married for twenty-five or thirty-years. The trial court therefore, in effect, determined that permanent alimony awards are reserved solely for long-term marriages of twenty-five years or more, excluding consideration of the other factors. No per se rule exists indicating that permanent alimony is unwarranted unless the twenty-fifth year anniversary has been reached. Therefore, we find that the trial court improperly weighed duration over the other statutorily defined factors in determining a long-term marriage must be twenty-five years or more.

We further conclude that in its disposition of this appeal the Appellate Division inadvertently created a bright-line rule for distinguishing between a short-term and long-term marriage as it pertains to an award of permanent alimony. Although the Appellate Division stated “we do not intend to draw specific lines delineating ‘short-term’ and ‘long-term’ marriages in an effort to define those cases warranting only limited duration rather than permanent alimony,” a fair reading of the opinion may lead to such a conclusion. By not clarifying that the statement reflected only the fifteen-year marriage in this particular case, the Appellate Division made a generally applicable declaration.

The Court further noted that in using the language that was used by the Appellate Division, consideration of the other alimony factors was functionally eliminated.  The Court held:

Moreover, we note that the final clause of the sentence affirms that the “not short-term” nature of a fifteen-year marriage mandates that it cannot be considered for limited duration alimony. Such a holding removes the other twelve factors from consideration for alimony awards once a marriage reaches the fifteen-year mark. Our cases have consistently held that all thirteen factors must be considered and given due weight, and the duration of marriage is only one factor to be considered. (Emphasis added).

There you have it – courts have to consider all of the factors.  Put another way, there can be long term marriages where permanent alimony was not appropriate when all of the other factors were considered, and short term marriages that may have required permanent alimony, all other things considered.

As noted above, the new statute was barely mentioned.  Essentially, the new statute was dismissed in a footnote which said:

N.J.S.A. 2A:34-23(c) was amended on September 10, 2014 to specify that “[f]or any marriage or civil union less than 20 years in duration, the total duration of alimony shall not, except in exceptional circumstances, exceed the length of the marriage or civil union. . . .” The amendment is not applicable to this case.

Clearly, on the remand, that means that the court will have to decide alimony based upon the old statute.  Query, however, what this means to cases settled or decided before the Amendment which have to go back to court for some reasons.  I suppose that some may use the footnote to argue that the old law should apply if it helps their client’s case.

I was fortunate to be one of the authors of the amicus brief filed by the New Jersey Chapter of the American Academy of Matrimonial Lawyers (AAML).  Even though the end result was somewhat anticlimactic, being involved in the process was still rewarding.

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Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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Gnall v. Gnall Being Decided On 7/29/15

Posted in alimony

The long awaited decision in the Gnall case is being released tomorrow (7/29/15).  Previously, we have blogged about the Gnall v. Gnall case.  In this case, the Appellate Division deemed a 15 year marriage to be “long term” and remanded the matter for consideration of permanent alimony.

I was fortunate to be one of the authors of the amicus brief filed by the New Jersey Chapter of the American Academy of Matrimonial Lawyers (AAML).  Interestingly, when we filed the brief, it was before the new alimony reform statute had passed.  While the amendments to the alimony statute might render this much ado about nothing, in any event, I am sure that the bar and the alimony reformers are interested in the outcome.

It will be interesting to see if tomorrow’s decision references the new statute and the justices’ feelings about it.

Stay tuned.

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Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

Connect with Eric: Twitter_64 Linkedin