Posted on March 10, 2010 by Eric S. Solotoff

NO DO-OVERS WHEN YOU AGREE TO SUBMIT ISSUE TO AN EXPERT FOR A BINDING DECISION

As we recently learned from the Fawzy case that we blogged on, parties have a right to private ordering and self determination of how they want to resolve their cases.  In Fawzy, the NJ Supreme Court held that people could arbitrate custody matters as long as certain procedural measures were taken.

Can people decide to submit an issue to an expert for a binding determination?  On March 10, 2010, in an unreported (non-precedential) decision issued by the Appellate Division in the case of Cully v. Cully, the question was answered affirmatively.

In this case, post-judgment litigation occur ed over the correct interpretation of a Property Settlement Agreement, more specifically, the correct form of a QDRO (the mechanism to divide an ERISA controlled retirement asset).  The judge suggested that the parties could elect to have a QDRO expert
review both parties' QDROs and decide which QDRO is acceptable. The parties would split the expert's fee, and the loser would reimburse the other party for counsel's fees. The parties adopted the judge's suggestion and agreed to be bound by the expert's determination.

With certain modifications, the expert suggested adoption of the husband's form of QDRO and it was ultimately entered as an Order of the Court.  The wife appealed arguing that the court should have held a hearing on the parties intent since the language in their Property Settlement Agreement was not entirely clear.

The Appellate Division affirmed the decision finding that the since the wife's attorney advocated for and agreed to a binding determination by the expert, the wife could not then object when the decision did not go in her favor.  In fact, the Appellate Division specifically stated:

Our judicial process's integrity would be damaged if defendant received a second bite at the apple because she is disappointed that the process, which her counsel agreed to and advocated for, resulted in a decision unfavorable to her.  Both the doctrines of invited error and judicial estoppel bar this court from considering defendant's claims regarding the trial court's decision to accept Ms. DeFuccio's determination in this esoteric area of family law.

There are several lesson here.  (1) When you agree to submit a matter for a binding determination, you are stuck with that decision. (2) When you are dealing with the division of pensions, and there is any possibility for different interpretations/ways to divide it, it may make sense to hire the QDRO expert before the settlement so that the correct language is in the PSA; (3) in a similar vein, if possible, have the QDRO signed the same day that the divorce is entered.  Here, it appears as perhaps imprecise drafting was the problem.  Moreover, if the issue ultimately required a determination of intent, the decision to allow an expert, or anyone for that matter, to make a binding determination without first determining what the intent was, is a curious one.

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Posted on March 2, 2010 by Sandra C. Fava

COLLEGE TUITION - WHO PAYS?

Post-judgment motions are common in family law, especially when it comes to paying for college tuition for the children of the divorced parties. Often times, older Property Settlement Agreements ("PSA") are ambiguous when it comes to which parent will pay a child’s college tuition. As was the situation in the recent unpublished decision in Orero v. Orero, App. Div., docket no. A-2230-08T3, decided on February 19, 2010.

The Orero’s were married in 1987 and divorced in 1996. In 1996, the parties entered into a PSA where they agreed that if the children were to attend college each party shall contribute “to the best of their ability.” Well fast forward 13 years and their oldest daughter is about to begin college in Colorado. Now, Mrs. Orero seeks Mr. Orero to contribute half of the daughter’s college expenses. Mr. Orero alleges that he was (1) not consulted regarding the daughter’s choice of schools, (2) doesn’t have the ability to pay because he has children from another marriage, and (3) if he must pay, than he is entitled to a plenary hearing (similar to a trial) to determine the relevant facts. As a result, Mrs. Orero files a motion with the court seeking to enforce the PSA. Notwithstanding Mr. Orero’s arguments, the trial judge ordered Mr. Orero to pay half the college expenses. Mr. Orero filed a motion for reconsideration, which is denied. So Mr. Orero appeals.
 

After hearing the arguments of both parties, the Appellate Division affirmed the denial of defendant's motion for reconsideration and granted plaintiff's motion to compel defendant to contribute to the costs of their daughter's college education based on its findings, among other things, that (1) there were no factual disputes that required a plenary hearing; (2) the language in the parties' property settlement agreement required defendant to contribute to his daughter's college expenses to the best of his ability, not if he believed he had the ability to do so; and (3) Mr. Orero must pay, notwithstanding he simply does not approve of her selection of an out-of-state school.

When dealing with older or ambiguous PSA’s attorneys must advise, and clients must understand, that “the court’s role is to consider what is written in the context of the circumstances at the time of drafting and to apply a rational meaning in keeping with the expressed general purpose” of the PSA.
 
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Posted on February 4, 2010 by Eric S. Solotoff

APPELLATE DIVISION CREATES NEW PROCEDURE LIMITING JUDGE'S ABILITY TO RESTRICT A LITIGANT'S ACCESS TO THE FAMILY COURT

On February 3, 2010, the Appellate Division issued a reported (precedential) opinion in the case of Parish v. Parish.  This case is near and dear to me because I represent Mr. Parish and we made new law. 

In this post-judgment litigation we filed a motion seeking enforcement of the parties' divorce agreement because the ex-wife interfered with his parenting time with the children and to fix a parenting schedule for the next several months. The schedule was supposed to be arrived at with the assistance of a parenting coordinator but the issuance of a domestic violence temporary restraining order against Mr. Parish's ex-wife delayed that process. After the restraining order was dismissed, the parties went to the parent coordinator who made recommendations prior to the return date of the motion. Mr. Parish agreed with them - he ex-wife would not state if she agreed or not, waiting to see what the court would do.

The trial court denied Mr. Parish's motion as moot, ordered the parties back to the parent coordinator to deal with the issues in the motion and required that the parties attend settlement conferences before filing any future motions, even enforcement motions.

We appealed arguing that (1) the trial court unconstitutionally impaired Mr. Parish's access to the Court and (2) the court improperly abdicated its responsibility to a parent coordinator who cannot, by Supreme Court directive, address enforcement issues in any event.

The Appellate Division agreed in a 2-1 decision. In doing so, they crafted new requirements before a family part litigant's access to the Court can be restricted.

In doing so, the Appellate Division instituted a new procedural rule.  The relevant portion of the opinion is as follows:

We also emphasize that judicial review of enforcement motions, no matter how time consuming, is essential to discerning which motions pose problems mandating immediate attention and which describe matters that are trivial. If a court finds a motion is based on unsubstantiated allegations; is frivolous, repetitive, or intended to harass the former spouse; is the result of abusive litigation tactics; or is designed to interfere with court operations, the judge has the power to craft appropriate sanctions to curb such manipulations. When the imposition of sanctions fails, injunctive relief may be warranted.

In those limited instances where appropriate, an injunction should be issued only after the judge:
1. makes a finding that past pleadings were frivolous or designed for an abusive purpose;
2. fully scrutinizes the newly filed pleadings and determines them to be repetitive and within the scope of the prescribed vexatious matters; and
3. has unsuccessfully attempted to abate the abuse by employing sanctions such as those provided by Rule 1:10-3 or Rule 5:3-7.

Additionally, any restraint entered must be circumscribed, not global, and narrowly focus on the issues shown to warrant restraint.

The Court also made clear that parent coordinators cannot address enforcement issues nor can they modify parenting plans. Further, a trial court must make decisions on motions and cannot abdicate that responsibility to third parties or experts.

Because there was a spirited dissent in this case, there is an automatic right to appeal the matter to the Supreme Court if the other side chooses to do so. 

in any event, we are proud of our efforts and the results obtained in this case.  Robert Epstein assisted in this matter as well.
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Posted on February 3, 2010 by Sandra C. Fava

MARRIAGE MAY BE TEMPORARY, BUT PARENTING LASTS A LIFETIME

I recently read an article about post-divorce parenting. The article made suggestions that I thought were important to echo. In my practice, I see and meet all types of people and parents. Divorce often brings out the worst in people. It’s an emotional time - separation from a partner, equitable distribution, visitation, sale of the marital home, separation from children, moving, dividing of assets, alimony, infidelity, child support, negotiations, court, motions – the list goes on and on. Hopefully, these things will be resolved at some point. But the most important thing when all is said and done is that the children of the marriage are emotionally and mentally unharmed and continue to have a good relationship with both parents. 

 Without reciting the whole article, I thought I would make some observations about the matters I have handled. One thing I often see in a divorce is when a parent begins to treat their child like a friend.  Parents going through a divorce should not tell their child the intimate details of the divorce as if they are an adult. Divorce is an adult matter. Parents should avoid discussing the legal intricacies of a divorce with their child. It is important to explain to the child that you will be living apart and that both parents still love the child and it’s not the child’s fault. But there is no need to explain who will be receiving the retirement accounts or how much alimony will be paid.

This brings me to my next observation – parents speaking ill of their former spouse either to their child or while the child is present. It’s natural for a spouse to be angry at their former spouse following a divorce, but a parent should not try to poison a child against their other parent. 

Don’t play the “gift game” with the child. Affection that is bought from a child will only foster a child to attempt to manipulate their parents to get what they want. Often children will complaint to a parent about how they are being treated unfairly by the other parent. Naturally a parent wants to help their child, so they go to Court and seek a change of living arrangements. Sometimes the child is correct. But before a parent just reacts to their child, they should think, why is this happening, is the child just manipulating me so they can stay out later, or go on a trip, or watch more TV - why is the child seeking a change?

This brings me to the most important thing I tell clients when they have children – act in the best interest of your children. When it comes to the children, try to be fair and reasonable, and put yourself in their shoes. If you think going through a divorce as an adult is difficult, image how a child must feel?
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Posted on January 19, 2010 by Eric S. Solotoff

WHICH ASSETS ARE EXEMPT FROM EQUITABLE DISTRIBUTION

Whether an asset is exempt is a common issue that arises in divorce case.  The general rule is that an asset acquired prior to the marriage which is not commingled is exempt from equitable distribution.  In addition, an asset that is received via inheritance and/or third party gift is also exempt as long as it is not commingled.  Commingling is essentially putting an asset into joint names or depositing it into a joint account.  Changing something from someones own name into joint names is deemed as making a gift to the marriage.

Also, the law is clear that the person who seeks to have an asset deemed exempt has the burden of proving that the asset is exempt.

Because an engagement ring is a premarital gift, albeit a conditional gift, from one spouse to to the other, it is exempt from equitable distribution.  If the ring is replaced and/or enhanced during the marriage, while the original stone, if it exists, remains exempt, the new ring is not exempt.  In fact, any gifts between spouses during the marriage are not exempt and are subject to equitable distribution on divorce.  As such, some times we are required to have jewelry, furs, and other expensive presents appraised to determine their value for equitable distribution purposes.  Sometimes this task is made a little easier because parties have appraisals for insurance purposes which is why we often ask for the homeowners insurance policy riders.

The premarital portion of retirement assets, i.e. IRAs, 401ks, pensions, are typically exempt. For defined contributions plans (ie. the accounts with cash balances), the trouble may be finding or obtaining the documents to establish the premarital values.  That said, even though the premarital values are often commingled with contributions made during the marriage, the premarital portions are typically exempt.  Contrast that with a regular premarital bank account where deposits are made during the marriage using marital income.  Many would argue that this account has lost it's exempt status.  Is that fair?  What is the real difference?  Perhaps the difference is that though money will usually go in and out of a bank account, there usually is not the same type of two way activity as to retirement accounts.

Similarly, marital homes owned by one party and never put into joint names often do not receive the treatment that the law would require.  Specifically, there is case law that says that only the principal pay down of the mortgage during the marriage plus the active appreciation (i.e. if the value of the home has been enhanced by capital improvements) is subject to equitable distribution.  That said, I have seen people argue judges state that because it is the marital home, somehow there should be some greater distribution, even if it is not 50-50. 

Note that aside from the retirement assets scenario described above, there is another exception to the commingling rule.  That is, there is a reported decision that says that when someone has temporarily parked an otherwise exempt asset in a joint account only to move it out to an individual account shortly thereafter, the asset will remain exempt.  I had a case where there husband lost his brother at an early age and he received the proceeds of his brother's life insurance.  Because he was so distraught about the loss, his wife took the insurance check and opened a new, joint account with it.  No other money ever went into or out of the account.  After a trial, the court found that the account was the husband's exempt property despite being in joint names for about 2 years or so.

To other notes on exemption.  First, even though an exempt asset was converted to a joint asset, that does not mean that it has to be divided equally.  New Jersey remains an equitable distribution state and assets that a party brought into the marriage and source of acquisition of the assets are two factors that must be considered. Second, the better practice to protect premarital assets is to have a prenuptial agreement.  Prenups can be used to preserve premarital assets, even if they are commingled, if the agreement says so.
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Posted on January 5, 2010 by Sandra C. Fava

CHILD SUPPORT FOR A CHILD THAT DOESN'T LIVE WITH YOU?

What happens if a parent throws a teenage child out of the home and continues to collect child support? In short – sanctions. Those were the facts in a recent unpublished New Jersey Appellate Division decision, Lidon v. Lidon, Appellate Division, docket no. A-3355-08T3, decided December 28, 2009. 

In Lidon, James and Jean Lidon were divorced in 1997.  Both parents were practicing attorneys. They had two children who resided with Jean. James paid $337 per week in child support to Jean.  The eldest child, a senior in high school, allegedly had a drug and alcohol problem. As a result, Jean threw their son out of her home in the summer of 2007.  This child subsequently lived with friends, in his car, and finally with Jean’s former boyfriend. He finished the school year and was accepted into Lehigh University. 

James only discovered that their son was no longer living with Jean in the spring of 2008, at which time he filed a motion seeking custody of the eldest child, termination of child support, sanctions for failing to inform him of the child’s whereabouts, and a reduction of support for the younger child. Jean cross-moved seeking reimbursement of unreimbursed medical expenses, sanctions for failing to exercise parenting time, and payment for a car that she unilaterally purchased for the eldest child.  Jean also sought to have her responsibility to pay for college expenses terminated because she no longer had a relationship with the eldest child.  

The Appellate Division affirmed the Trial Court’s order that gave custody of the eldest child to James, terminated child support for the eldest child, modified support for the younger child, and imposed sanctions of $3,120 on Jean for failing to inform James that the eldest son had moved out of her home.  The order also denied Jean’s motion and imputed $100,000 income to her for being underemployed.

 

This case exemplifies the myriad of issues that couples face as children mature, face adult issues, and begin to move toward emancipation. Although there was a strained relationship between both parents and their eldest child, the custodial parent had an affirmative obligation to inform the parent paying child support that the child was no longer residing in the home. Furthermore, the custodial parent did not have a right to continue receiving child support when they were no longer caring for the child. While the facts of the case may be considered extreme, it does show how a court will protect the interests of a parent and will sanction those parents who do not keep the non-custodial parent informed of such important issues. Animosity aside, communication is vital when children are involved.
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Posted on December 24, 2009 by Sandra C. Fava

CAN THE COURT ORDER A PATERNITY TEST?

Can a court order a person to take a paternity test? The short answer is - Yes.  Under the New Jersey Parentage Act of 1983, N.J.S.A. 9:17-38 to 59, any person with an interest recognized as justifiable by the court has standing to bring an action for the purpose of determining the existence or nonexistence of the parent and child relationship.  This type of action must be brought within 5 years after the child’s 18th birthday or by 23 years old.  That is, unless there is a justifiable reason for tolling. 

 In a recent New Jersey unpublished Appellate Division case, R.C. v. L.L., A-3057-08T1, decided December 11, 2009, the Appellate Division affirmed a Monmouth county trial court’s dismissal of a complaint by a 51 year old man against his estranged father to determine a parent/child relationship. RC was born in Germany to an unwed German mother in 1956. RC's mother had told him when he was a teenager that his father was an American soldier that had been stationed in Germany. In 1987, RC made efforts to find his father to no avail. Finally, in 2006 he was able to contact his alleged father, LL. Although at the time LL agreed to take a paternity test, he subsequently changed his mind. Finally in October 2008, RC filed a complaint seeking among other things an adjudication of LL's paternity. LL filed and was granted an application for summary judgment dismissing the case. RC appealed the trial court’s order. The Appellate Division affirmed the trial court’s decision and upheld the dismissal, finding that the complaint had been filed 28 years beyond the statute of limitations and allowing it to proceed was unfair. 

RC may have won on appeal, if the Appellate Division found that the case demonstrated an "extraordinary circumstance." In R.A.C. v. P.J.S., Jr., 192 N.J. 81, 95 (2007), the court gave the example of an adult child desiring to know if a parent's family member carries a "muscular dystrophy gene." That "might" establish an "extraordinary circumstance" by asserting a need to confirm parentage and the risk of passing on that gene. Unfortunately for RC, his affidavit failed to cite any medical reason or condition for seeking a paternity test. But had RC alleged a medical condition or necessity to know, the Court seemed to indicate it may be willing to order LL to take a paternity test. 

For anyone who does not know the identity of their parent(s), the desire to know more information is a natural feeling. Unfortunately in New Jersey, if those feelings do not evolve early enough – before 23 years old – the opportunity may be missed, especially if that parent is unwilling to acknowledge or agree to a paternity test. While the personal interest of a child may be the driving force behind wanting to know the identity of a parent, the judicial system is concerned that without a statute of limitations in place, the search may result in “recriminations and intrusions.” 

 

To learn more on this topic, the New Jersey child support website provides some helpful  information.
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Posted on December 9, 2009 by Sandra C. Fava

DIVORCING DURING THE HOLIDAYS - DON'T RUIN IT FOR THE KIDS

THE HOLIDAYS.   For some people, the holidays are a joyous, festive, and happy time of the year - filled with family, friends, and well wishes.   For the rest of us, the holidays are stressful, hectic, and at times depressing.  Another year has come and gone - little has changed. I am a year older.  I have not lost those 20 pounds I swore I would lose at the beginning of the year - and now I have to lose that 20 plus an additional 15!  Ahh yes..... the holidays. 

For those people on the midst of a divorce these feelings can be exacerbated and even compounded further when children are involved.   During a divorce or immediately following, will be the first time children and both parents are not celebrating the holidays together.  Old traditions may be broken.  No longer will certain in-laws be seen, some you may have actually liked.  This can be hard on everyone involved, especially the children.

Children will be separated from at least one of their parents during - Thanksgiving, Chanukah, Christmas Eve, Christmas Day, and/or New Year's Eve, New Years Day.  This can be a shock to any child and any parent.  The child and/or parent may finally realize that the divorce is for real.  Hopefully both parents are going to want to be there to comfort their child during this difficult time. 

For parents who are divorced already these decisions should be in the final custody and parenting time agreement or the judgment of divorce.  During the pendency of a divorce the parents will negotiate.  Coming to an amicable agreement is best, but if that isn't possible, either party has the option of filing a motion and letting a judge decide.  Even though the children may have spent every Christmas Eve and Christmas Day with the mother's family during the marriage, parents involved in custody controversies have by statute been granted both equal rights and equal responsibilities regarding the care, nurture, education and welfare of their children. N.J. Stat. Ann. § 9:2-4.   Aside from any special considerations, a judge will likely try to resolve the issue in a manner that is fair to both parents and the children.  Often, making everyone happy is an impossibility.

In the long term, this standard could result in joint custody with the parents switching holidays on an annual basis.  But the most troublesome aspect of a joint custody decree is the additional requirement that the parent exhibit a potential for cooperation in matters of child rearing. This aspect does not translate into a requirement that the parents have an amicable relationship. Although such a positive relationship is preferable, a successful joint custody arrangement requires only that the parents be able to isolate their personal conflicts from their roles as parents and that the children be spared whatever resentments and rancor the parents may harbor.

This is when parents have the opportunity to make a child's transition from celebrating the holidays as a family unit to celebrating the holidays separately with each parent as easy and stress free as possible.  Whatever the parents decide, remember that the holidays may not be a joyous, festive, and happy time of the year for you, but they should be for your children. 
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Posted on November 15, 2009 by Sandra C. Fava

RELOCATION WITH CHILDREN OUTSIDE OF NJ

I have previously blogged on the standard courts consider when asked whether a custodial parent can relocate outside of New Jersey. 

In our global economy with the economic times being what they are, more and more often I hear people asking if they'll be allowed to move with their children after the divorce.  Recently, the Appellate Court in New Jersey issued an unpublished decision in what appears to have been a hotly contested divorce and relocation trial.  In Hryack v. Hyrack, A-1321-08T4, A-3645-08T2 (two consolidated appeals) decided October 29, 2009, the court gave its thorough analysis of the relocation issue as it pertained to this family.

The first question for a court to answer when faced with an application for relocation outside of New Jersey is whether the physical custodial relationship between the parents is one where one parent is the primary caretaker and the other the secondary caretaker. O'Connor v. O'Connor 349 NJ Super. 381, 385 (App. Div. 2002). If a court does find that the relationship between parties is one where one parent is the primary caretaker and the other the secondary caretaker, the request to relocate must be analyzed further with the standard set forth in the New Jersey Supreme Court case of Baures v. Lewis, 167 N.J. 91 (2001).

Under the Baures case, the parent that wants to relocate with the children must provide evidence that shows that there is 1) a good faith reason for the move and 2) that the move will not be inimical to the children's best interest.  They should also propose a visitation schedule.

In other words, the parent seeking to move with the children must prove to the court that the request to move is being made in good faith and not, for example, to spite the other parent or thwart their parenting time with the children.  Also, the parent must show that moving with the children outside of NJ will not be contrary to the children's best interest.

If the parent who wishes to relocate can meet these two burdens of proof, then it becomes the other parent's responsibility to provide evidence opposing the move because its being done not in good faith or it is contrary to the children's best interest.

To assist courts, Baures provides 12 factors to serve as guide posts when assessing the issue.  They are :

1. Reasons given for the move.

 2. Reasons given for opposition.

3. Past history of dealings between the parties insofar as it bears on reasons advanced by both parties for supporting and opposing the move.

4. Whether child will receive educational, health and leisure opportunities at least equal to what is available here.

5. Any special needs or talents of the child that require accommodation.

6. Whether a visitation and communication schedule can be developed that will allow the non-custodial parent to maintain a full and continuous relationship with the child.

7. Likelihood that the custodial parent will continue to foster child's relationship with the non-custodial parent if the move is allowed.

8. The effect of the move on extended family relationships here and in the new location.

9. The child's preference.

10. Whether the child is entering his senior year in high school.

11. Whether the non-custodial parent has the ability to relocate.

12. Any other factor.

In the recently decided Appellate Division decision of Hyrack, the Court reversed and remanded to the trial court because there was not a thorough and detailed parenting plan addressing how the non-custodial parent would have sufficient time and access to the children so that his relationship with them was not impaired or injured based upon their move across country to California.

One of the lessons that Baures taught was the importance of both parties' efforts to create an alternative visitation plan that could bridge the physical separation between the noncustodial parent and the children.  Ways such as email, Internet cameras, visitation during school breaks, holidays, vacations and phone contact must all be considered.  What also must be considered is the cost of such a visitation plan.  What the court should focus on is whether the communication and visitation is detailed and sufficient enough to maintain and nurture the connection between the noncustodial parent and children.  An important consideration to be made is what the quality of the relationship will be between the children and the noncustodial parent.

Any parent seeking relocation must examine these factors carefully and set forth a detailed plan for visitation and parenting time that can be executed and that can maintain a quality in the relationship between the children and the other parent.
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