Posted on March 7, 2009 by Eric S. Solotoff

TRIAL IS AN EXPENSIVE WAY TO GET YOUR POUND OF FLESH

I just completed a 10 or so day trial (really a binding arbitration).  Why did it take so long?  Were there complicated valuation issues? No.  Complicated alimony issues? No.  Custody issues?  No - custody and parenting time were already settled. 

The answer in large part was one party's bad faith and need to extract a pound of flesh.  He did not get his pound of flesh and while we await the decision, I doubt he will receive satisfaction there either?

Some examples of the nonsense.  The case started in 2006 when real estate was at its height and the marital home was appraised by a joint appraiser in early 2007.  The case lingered and trial did not start until the fall 2009.  Despite the fact that the law is clear that homes are valued at the date of distribution, the husband opposed a new appraisal.  Why - as every knows, real estate values were going down.  Since he knew that the wife wanted to keep the house, he was trying to use this to his advantage.  Due to the delays, the wife had to get an updated appraisal in January 2008 when the was originally supposed to occur.  She had to get another one in August 2008 before the trial started.  The husband held out and opposed using the joint appraiser, costing the parties more money for experts and then wasting a day trying the issue of the value of the home.

 

The husband got an employability expert to determine the wife's earning capacity.  This is not unusual.  What caused a waste of time is that he lied to his expert about what his wife did when he had a small consulting business in the late 90s, trying to portray her as not being out of the workforce, despite the fact that she probably worked only a few hours per month.

Plaintiff's direct examination was 3 to 4 hours.  The cross examination was several days.  Why?  Despite the fact that he had no evidence of it nor would it be relevant, the husband had his lawyer try to pursue an adultery claim.   He had his lawyer try to pursue issues of parenting alienation despite the fact that custody was settled and the joint expert blamed his relationship with the children in larger measure on his conduct.

In addition, he had his lawyer nitpick on minutiae that was not relevant to anything.  Even if my client got the answer wrong, it would not prove that she was not credible. 

In fact, both this cross examination and the trial in general was torturous because of the costly and needless waste of time by the husband delving into irrelevant issues, which then had to be rebutted.  This brings up another point.  Just because you are having a trial does not mean you have to address every issue and every fact as to every issue that has every come up in a case.  Courts and arbitrators don't care about such nonsense.  It only causes more in counsel fees.  While it would be easy to cast aspersions at opposing counsel's trial capabilities, clearly much of it was following the marching orders of her client - at great and outrageously needed expense of both parties.

One can only hope that when all is said and done, counsel fees will be assessed such that the husband will pay for the folly he created.
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Posted on October 3, 2008 by Eric S. Solotoff

USE OF EMPLOYABILITY EXPERTS IN DIVORCE CASES

In order to determine alimony and child support, the court must know what both parties earn.  In fact, the child support and alimony statute requires the court to look at the parents "earning ability" (in the child support statute) and "earning capacities" (in the alimony statute).  Don't ask me why the terminology is different but the concept is the same.  That is, if someone is not earning up to their capacity, the Court needs to know what they can/should be earning.

This often comes up when one parent, by agreement or otherwise, was a stay at home parent or worked part-time in order to care for the children.  The other instance where this comes up is one someone is a malingerer or otherwise unmotivated to work.  In fact, in a trial court opinion, when discussing imputation of income in one of these situations, there is an amusing reference to a dictionary definition of a parasite.

Notwithstanding, if someone is not working or is only working part-time, the court can and usually should impute income to that party.  Of course, if child care will be needed to replace the care that that parent gave, the court must also assess and offset what appropriate child care would be. 

The New Jersey Department of Labor publishes statistics on wages for numerous occupations, providing statewide statistics and statistics broken down by groups of counties.  In addition, the charts provide the mean, median 25th percentile and 75 percentile of income for the particular job.  To go the the Department of Labor website regarding this information, click here. 

Courts have the ability to take judicial notice of these statistics.  Some judges will - some wont.  In addition, these are merely cold statistics and may are may not provide definitive income regarding what someone can earn. 

Another method of providing evidence of what someone can earn is to employ an employability expert to assess the underemployed party.  Note however, there are some judges who do not allow employability experts, at all.  Of course, in a case where that same judge said that a wife's part time income should be doubled to get to a full time wage for support purposes, the Appellate Division reversed that finding because it lacked evidence in the record to support it.

I have heard other judges say that they do not put much weight to the reports/testimony of any of these experts, though they will permit them.  Just recently, an adversary during a trial objected to the scientific basis of employability experts, seemingly in general (though the expert was permitted to testify and the report was received in evidence).

While I suppose there can be a debate about the science, I for one am a proponent of employability experts, where appropriate.  A good expert will meet with the party, get a detailed history, perhaps do some testing, if appropriate, then do research.  Part of this research typically includes resources looking at job availability in the industry.  They also look at wage statistics such as those set forth above and other sources.  More and more, the experts will do a labor market survey in where they contact employers in the target field to determine whether the candidate would be considered for the job and what the range of pay is.  The good thing about the labor market survey is that it can buttress the statistics.  The bad thing, at least at trial, is that it is a ripe area for damaging cross examination.

That said, employability experts are an effective tool to help the court determine what an unemployed or underemployed person can earn.

 

 

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