Posted on October 13, 2009 by Erin DeGeorge

Retroactive College Contribution

Many couples in the midst of a divorce have very young children. As a result, the issue of funding their children’s college education is typically reserved until the child is of college age. Parties typically agree to include language in their Property Settlement Agreement wherein they will exchange income information and begin discussions regarding the child’s college expenses during the child’s junior year of high school. This makes sense because after all, no one can predict their financial future. Fast forward 15 years, the child is about to begin the process of applying to college. The parties have informal discussions, sans counsel, regarding their respective contributions. The custodial parent accepts the non-custodial parent’s contribution for a few years then decides it is just not enough. Can the custodial parent seek a retroactive contribution toward the child’s college expenses? 

The Appellate Division just answered this very question in the unpublished decision of Kmetz v. Fusaro, Decided October 9, 2009, Docket No. A-5870-07T3. In Kmetz v. Fusaro, the parties divorced when their daughter was 9. Their Property Settlement Agreement includes the following clause “The parties acknowledge their desire of the child to attend college or other post graduate professional schooling consistent with the child’s ability and the parent’s financial means. Each party agrees to assist the child in such endeavor and to contribute according to their then available means after all available financial aid, scholarships and part-time and summer earnings.”  

 

The parties’ daughter attended college immediately following high school graduation. The Father voluntarily paid $1,500 each year toward his daughter’s freshman and sophomore year college costs. In the summer between the daughter’s sophomore and junior year, the Mother asked Father to increase his contribution. Father increased said contribution to $2,000 that year. In the middle of the daughter’s junior year, Mother retained an attorney who contacted Father seeking an additional contribution toward the college expenses. Ultimately, Mother filed a motion with the trial court seeking contribution, in proportion to income, toward the daughter’s college costs for her freshman, sophomore, junior and senior years. The trial court granted Mother’s request and ordered Father to pay 68 percent of his daughter’s college costs for all four years.

 

The Appellate Division, relying upon Gac v. Gac, 186 N.J. 535 (2006) and Newburgh v. Arrigo, 88 N.J. 529 (1982), concluded that Father  should not have to contribute toward the college costs of his daughter’s freshman, sophomore and first semester junior year. Reason being, Mother accepted Father’s voluntary contributions for the aforementioned years.   Suffice it to say, if you are the custodial parent of a child on the heels of the college application process, it is essential that you discuss the funding of your child’s college education with your ex-spouse. If you are unable to reach a resolution, it is imperative that you seek the Court’s assistance prior to your child’s first day of college.

 

EDITOR'S NOTE:  To avoid the typical complaints about lack of consultation and lack of notice, the custodial parent should also involve the non-custodial parent in the process as early in college selection process, as possible, and put the communications in writing.  Perhaps the non-custodial parent should be invited to make college visits with the custodial parent and the child or otherwise, should be invited to take the child to other colleges for visits.  In fact, the other parent should be solicited for schools that he/she would suggest being considered.  The more that is done in this regard, the less the other side can object to and as such, the review becomes a financial one, as opposed to dealing with some of the other extraneous issues that often come up.  ERIC S. SOLOTOFF

Tags: , , , , , ,
Posted on June 29, 2009 by Sandra C. Fava

TO EMANCIPATE OR NOT TO EMANCIPATE- THAT IS THE QUESTION

Despite what people often think are iron-clad agreements, foolproof from any misinterpretation, despite best efforts, that may not always be the case.  One area that has been given significant recognition for interpretation by our courts is the area of what constitutes emancipation of a child.

This issue was recently addressed in the unpublished Appellate Court opinion, Zingone v. Zingone, decided June 1, 2009, A-0078-08T1.   Generally, a parent has no obligation to support an emancipated child.  So what constitutes emancipation?

The Supreme Court of New Jersey has held that emancipation can be found when a child marries, joins the military, reaching of an appropriate age, and when a court orders him/her so based upon the child's best interests.  Just because a child turns 18 years old only establishes prima facie, not conclusive proof.  Whether a child is emancipated at 18 years old depends on the facts of the case.

So what does the court look at? The most important inquiry is whether the child has moved beyond his or her parents' sphere of influence and responsibility and has obtained independent status.  To make this determination, one must look at the child's needs, interests and independent resources as well as the family's expectations and the parents' financial ability.

However, if an agreement remains vague as to a triggering emancipation event, as the plaintiff argued in Zingone above, courts will often refer to public policy, which in modern times, encourages a college education, especially where a child shows scholastic aptitude and the parents are able to afford it.

In New Jersey, our highest Court has recognized that generally, financially capable parents should contribute to the higher education of children who are qualified.  Even in cases where a child may take a brief break from college, during which time he or she is working full-time, our courts have held that that child is not emancipated because he or she has not yet moved beyond their parents' sphere of influence.

These cases are often extremely fact specific and require examination of several factors before an individual can determine whether or not their child may be emancipated under the laws of this state such that relief from financial obligations would be successful.

Tags: , , , , ,
Posted on April 13, 2009 by Sandra C. Fava

NOW THAT I'M DIVORCED- CAN I MOVE?

With technology, the Internet, mobility and information overflow, post divorce individuals often wonder if they can relocate to another state for personal or business related reasons.  The easy answer is sure, so long as there are no children or if your divorce judgment or agreement addresses this issue.

What happens when children are involved and the agreement or divorce judgment does not address the issue of relocation of a custodial parent.  The custodial parent seeking to relocate can file an application with the Court for an Order granting them permission to relocate.  The controlling statutory law is N.J.S.A. 9:2-2 and the precedential case in the state of NJ is Baures v. Lewis, 167 N.J. 91 (2001). 

Recently, the Appellate Division revisited this issue in the unpublished matter of Cathrall n/k/a Greenberg v. Cathrall, IV, decided March 18, 2009, Docket Number A-4085-06T3.  This appeal stemmed from a post judgment order denying relocation, which resulted from a post judgment motion requesting permission to relocate from New Jersey to Florida, filed by the mother/custodial parent. 

The parties were divorced in 2003.  Since their separation, plaintiff/mother had custody of the two minor children born of the marriage.  Defendant/father had supervised parenting time due to admitted issues with alcoholism and had a strained relationship with the minor children.  A year after the divorce was finalized plaintiff/mother remarried.  She was also the owner and operator of a children's clothing store in Stone Harbor, which was operated as a seasonal business during the summer months.  Plaintiff/mother filed an application in early 2004 seeking permission to relocate to Marathon, Florida.  Her desire was to open a similar store in Florida to operate during the winter months and return to NJ during the summer months to operate the store in Stone Harbor.  Defendant/father opposed this application, however by way of an Order dated April 8, 2004, the trial court granted the request.

Plaintiff/mother relocated with the children to Marathon, Florida and remained there until the end of the school year in May. She then returned to NJ but did not return to Florida at the end of the summer. She contended that she didn't return to Florida because defendant's mother sued her for a claimed indebtedness, for which she filed a third party complaint against defendant; her home in Florida was destroyed by a hurricane; and one of the children contracted an eating disorder for which he was receiving treatment here in NJ.

Two years later, plaintiff/mother decided to once again return to Florida, however this time to Jupiter. In the interim, the children were seeing their father, often unsupervised and spent most of their time during the summer months living with him. When plaintiff' announced her intention to move to Florida, defendant opposed the relocation. Plaintiff asserted that she did not need his permission because of the prior Court Order. She didn't seek further court permission to move, she didn't inform defendant of her move, and when he realized she had left with the children, she obstructed his efforts to determine their whereabouts.

In September 2006, defendant filed an emergent application seeking the return of the children. The immediate relief was granted, however plaintiff did not return until December 25, 2006. Thereafter, at a hearing, plaintiff was ordered to remain the parent of primary residence, the children to remain in NJ and supervised parenting time to continue.

The trial judge deemed plaintiff's relocation a renewal of her 2004 application, however this application was viewed differently as it was to a new city in Florida, thereby requiring a new hearing before relocation could again be allowed. At a hearing, plaintiff went through and provided information by way of testimony and evidence of the Baures factors a court must consider when addressing the issue of relocation:

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 issuing its decision, the trial court reviewed each of the factors and found that plaintiff had not met her burden, specifically to the first factor, thus her application was denied. In addition, the court removed the supervision requirement from defendant's parenting time From that Order, this appeal ensued. Part of the appeal relating to the unsupervised parenting time was made emergent and thus heard separately from the relocation issue.

Specifically there was concern that given her conduct, that the plaintiff would not foster a relationship between the children and defendant.  Her taking the children to Florida without notice to the father and similar conduct was the basis for this finding.

An interesting twist in this matter is that while the appeal was pending, issues and problems between defendant and the children became increasingly worse. The Appellate Court remanded the issue of the supervision requirement for further testimony. During the remanded proceedings, after interviewing the children, the trial court found that the increased unsupervised visitation was not going well, to say the least. The court then entered an Order allowing parenting time only if initiated by the children or in an appropriate therapeutic setting. Defendant did not cross appeal from that Order and the remainder of the issues proceeded in ordinary course.

When addressing the issue of the denial of plaintiff's renewed application for relocation, the Appellate Court noted that "relocation applications are extremely fact sensitive".  Deference is given to the trial judge who sits as the factfinder and carefully evaluates evidence to make factual findings within the Baures factors. The Court held that the trial court's findings were supported by the record evidence and his ultimate conclusion in then denying the application was sound. However, the record does not end there. In light of the proceedings and additional evidence and testimony that surfaced as a result of the emergent remand addressing the removal of the supervision requirement, the Court held that a "significant change in circumstances involving the relationship among the affected parties" had materialized.  Therefore, because of this change in events, which surfaced after the trial court denied plaintiff's removal application, the Appellate Court held that the relocation must also be remanded to the trial court for reconsideration of plaintiff's application.


 
Tags: , , , ,
Posted on February 9, 2009 by Robert A. Epstein

APPELLATE DIVISION PROVIDES PRIMER ON HARASSMENT UNDER THE PREVENTION OF DOMESTIC VIOLENCE ACT

The Appellate Division recently presented in an unreported decision an educational primer on the criminal act of “harassment” under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (the “Act”), in Curry v. Curry, found here. In ultimately dissolving a Final Restraining Order entered by the trial court, the Appellate Division found that the evidence only established the existence of “domestic contretemps” during the course of a troubled marriage, insufficient to prove that harassment occurred under the Act. In so doing, the Appellate Division thoroughly reviewed the legislative purpose of the Act, how to establish harassment, and how the Act is not designed to protect against the common emotional difficulties that arise between parties during the course of a dissolving marriage. 

The factual scenario was relatively common – an argument occurred between a married couple when the husband believed that he had found direct evidence of the wife’s infidelity. The wife obtained a Temporary Restraining Order against the husband and, after a hearing, the trial court entered a Final Restraining Order against him, finding that he committed harassment under the Act. 

 

Quoting from the Appellate Division’s opinion in Peranio v. Peranio, 280 N.J. Super. 47, 53 (App. Div. 1995), the Appellate Division commenced its review by noting that the Act’s legislative intent to address “regular serious abuse between spouses.” The Appellate Division then explained that, under the Act, “domestic violence” means “the occurrence of one or more of [fourteen specific criminal] acts inflicted upon a person protected under this act by an adult or an emancipated minor . . . .” N.J.S.A. 2C:25-19(a). The definition was designed to provide spouses subjected to criminal conduct with legal recourse. The Appellate Division also noted that the burden of proof on a party attempting to provide an act of domestic violence is a preponderance of the evidence, which a court determines based on a review of the following non-exhaustive factors:

 

(1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;

(2) The existence of immediate danger to person or property;

(3) The financial circumstances of the plaintiff and defendant;

(4) The best interests of the victim and any child;

(5) In determining custody and parenting time the protection of the victim’s safety; and

(6) The existence of a verifiable order of protection from another jurisdiction.

 

As harassment was at issue, the Appellate Division then quoted the three separate statutory definitions of such criminal conduct under N.J.S.A. 2C:33-4:

 

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively course language, or any other manner likely to cause annoyance or alarm;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

 

The situation here dealt with subsection (c) of the harassment statute, so the Appellate Division first analyzed whether the husband had a purpose to harass, and then whether he had engaged in a “course of alarming conduct or repeated acts intended to alarm or seriously annoy” the wife. In conducting its analysis, the Appellate Division noted that the Act was not intended to address incidence of “ordinary domestic contretemps.” In other words, the Act is not meant to protect against the emotionally difficult issues that typically arise between couples during the course of a troubled and dissolving marriage. 

 

In light of the above, the Appellate Division held that the evidence failed to establish harassment under the Act, but rather the existence of mere domestic contretemps in light of the husband believing that he had discovered direct evidence of the wife’s adultery. In so holding, the Appellate Division disagreed with the trial judge’s findings that harassment existed based on the husband disabling the wife’s motorcycle, taking a garment she was wearing, demanding her car keys and generally expressing anger and frustration with her. The Court also noted how the trial judge made no specific finding that: (1) the husband had engaged in the sort of “course of alarming conduct or of repeatedly committed acts;” (2) his purpose was to seriously annoy her; and (3) any prior history of domestic violence or an immediate danger to the wife.
Tags: , , , ,