Posted on February 10, 2009 by Eric S. Solotoff

HEARING FOR SERIAL FILER OF SUPPORT MODIFICATION MOTIONS - ANOTHER RESULT

Last week, I published a blog post entitled "No Hearing Required for Serial Modification Motions." To view that post, click here.  However, released on February 9th was the unreported decision in the case of Cordero v. Mora with a different result. To view the full text of the case, click here.

This case involves the former Major League baseball player, Will Cordero, who was seeking, once again, to reduce his child support obligation for the child of his first marriage.  He played with the Boston Red Sox, Cleveland Indians, Pittsburgh Pirates, Montreal Expos, Florida Marlins and Washington Nationals in the major league for fourteen years. He made a substantial amount
of money during his career. In some seasons he made as much as $6,000,000.  He now claims to be out of baseball, having last played in the Major Leagues in 2005.  He participated in spring training in 2007 with the Mets in their minor league camp but was cut.

Over the years, Mr. Cordero has filed many application to reduce his support. In 2005 resulted in a reduction of child support from $1300 to $800 weekly. The  following year, he sought and obtained another reduction based on a substantial salary reduction.  from $800 to $500 weekly. On appeal,
he argued he should have received a greater reduction.  In June 2007, that argument was rejected by the Appellate DIvision.  However, just prior thereto, the ex-wife filed an enforcement motion and Mr. Cordero filed another motion seeking a reduction.  The judge granted the motion to enforce the existing order. In addition, the judge ordered him to pay $11,999 in arrears within thirty days and denied his motion for a further reduction. The judge noted that plaintiff provided limited and spotty financial information. Based on the information before the court, the judge concluded that plaintiff had the ability to pay the arrears. He also found that plaintiff produced extremely limited information about his efforts to obtain employment and incomplete information about assets that may generate unearned income or can be liquidated to meet his on-going child support obligation. The judge was particularly concerned that plaintiff had not provided an accounting of the millions of dollars he had earned during his professional baseball career.

 

 

Notwithstanding all of the above, the Appellate Division reversed finding that Mr. Cordero was entitled to a hearing because he no longer had his earned income as a professional baseball player.  The Court held:

Any consideration of a request to reduce a child support award cannot focus solely on the amount of income earned in the past. The judge must also consider the type of work performed by the obligor that produced the income. This is particularly
true when the obligor is a professional athlete. At the height of a career, a professional athlete may earn vast sums of money. The ability to earn such an income is almost always transitory. Here, there is no question that plaintiff has not played professional baseball since 2005, when he was cut by the Washington Nationals. He obtained a minor league contract with the New York Mets organization but did not make the team. While a court may impute income, Caplan v. Caplan, 182 N.J. 250, 268- 69 (2005), a judge cannot assume that the obligor will continue
to earn income at the same level as an active professional athlete unless the athlete has other exceptional attributes. There is nothing in this record to suggest that is the case. Admittedly, current income is not the sole focus of an analysis of a request to reduce child support. The judge must consider the moving party's ability to earn income in the future. Such an inquiry must consider the education and other
abilities demonstrated by the moving party. N.J.S.A. 2A:34-23. The judge must also consider the assets of the moving party and the ability of those assets to produce income to meet the moving party's obligations.

The Court, however, reiterated that Mr. Cordero has the burden of proof  to demonstrate that he is entitled to a further reduction of his child support obligation. He was required to fully disclose his financial condition, including the value of his major league baseball and the the terms and conditions of this pension,.  He also was required to disclose the obligations he has assumed in the course of the dissolution of his 2 subsequent marriages.

However, can the case in this post and the one in last week's post be reconciled.  In both cases, the disclosures were lacking.  The difference here is that, unlike the self employed lawyer who can manipulate his income, Mr. Cordero's status as a major league ball player was easy to discern and the loss of income from that pursuit virtually impossible to dispute. 
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Posted on February 2, 2009 by Eric S. Solotoff

NO HEARING REQUIRED FOR SERIAL MODIFICATION MOTIONS

On February 2, 2009, the Appellate Division released a reported (precedential) decision that affirmed a decision of the trial court denying the former husband's motion for a downward modification of his alimony and child support obligations.  The Appellate Division found that the trial judge properly exercised his discretion particularly when viewed against his findings from a multi-day plenary hearing (trial) that occurred less than one year prior. To see the full text of this case, click here.

The parties were divorced in 2003 and entered a Property Settlement Agreement (PSA) where he agreed to pay $1,000 per week in alimony and $350 per week in child support for the parties' 3 children.  In addition, based upon the joint accountant's finding of the five year average of the husband's income, he agreed that support was based upon $185,000 for him. 

In 2005, the husband moved for a reduction in his support obligation claiming a downturn in his law practice.  The plenary hearing on this motion was held over several days in December 2006.  After the hearing, the judge denied the husband's motion finding that during the time that the husband's income had supposedly decreased, he obtained a new $58,000 Lexus and bought a home for $785,000 with a $600,000 mortgage.  The judge also found that based upon the evidence at trial and his CIS, that the husband's income was more in the $140,000 range and not $100,000.  The judge also rejected the husband's claim that he was indebted to the Internal Revenue Service in the amount of $55,000 because Gregory failed to provide any documentation to
support that assertion.

 

In addition, the judge found no proof to support the husband's claims about his practice's "deteriorating case load." He held that the husband's testimony, which was the only evidence provided  "unconvincing" and his testimony that  he was unable to support the marital
standard of living was "incredulous."   Further, while  unpersuaded that his level of income had substantially deteriorated, the judge also referred to the Appellate Division decision in Larbig v. Larbig,  and held he was "not convinced" that the husband's alleged decline in business "is of [a]
permanent nature which inhibits his ability to sustain himself as well as child support and alimony payments" in the amount set forth in the PSA.

Nine months after the January 2007 Order denying the first motion, the husband filed a second motion for essentially the same relief.  On this occasion, the motion was denied after oral argument without a plenary hearing.  The Court found that since the original motion was filed in 2004, the husband took on greater obligations that were reasonable if his income were actually dwindling.  The husband appealed.

The husband argued that the trial judge was in error because he was committed to his prior findings.  The Appellate Division agreed that this was no doubt true but not error and as such, the case should not be assigned to another judge.  The Court further held:

As we have already indicated, the judge was not required to wipe the slate clean and consider a similar contention regarding Gregory's earnings less than one year after the prior order as if the earlier hearing had never occurred. To the contrary, the judge was required to consider not whether there was a substantial change since the 2003 PSA but whether there was a substantial change since he rendered his fact findings in December 2006. Admittedly, a sworn assertion that the obligor's income had fallen to $50,000 strongly suggests a substantial change in circumstances -- if that is all that is considered.   The judge correctly observed, however, that the focus must also be on the length of time that had elapsed since the last milepost in these post-judgment proceedings. In Larbig, for example, we affirmed a trial judge's determination that a motion for a reduction in support filed "a mere twenty months after the parties' execution of the PSA," 384 N.J. Super. at 22, alleged only a temporary change. See also Lepis, supra, 83 N.J. at 151 ("Courts have consistently rejected requests for modification based on circumstances which are only temporary . . . .").

The Court further found that given that this motion was filed 9 months after the last one, the husband had not demonstrated a change of circumstances.

Not surprisingly, there was skepticism regarding the husband's income which was enhanced because he was self employed and thus could manipulate his income.  In fact, the Appellate Division stated:

As we also observed in Larbig, "what constitutes a temporary change in income should be viewed more expansively when urged by a self-employed obligor," as here, who is "in a better position to present an unrealistic picture of his or her
actual income than a W-2 earner." 384 N.J. Super. at 23. The judge recognized this in denying Gregory's motion; indeed, the judge's decision on Gregory's first Lepis motion reflects a determination that Gregory's actual income was greater than what
was urged.

This case demonstrates a problem that is often seen in the cases, post-judgment, to wit, repeated motions for the same relief without providing competent evidence, and then re-filing the motion over and over without really providing more.  The Court correctly determined that it need not expend the wife's money in counsel fees or the Court's resources to have another trial less than one year later. 
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Posted on November 9, 2008 by Robert A. Epstein

WHAT PROCEDURAL SAFEGUARDS MUST BE IN PLACE WHEN CUSTODY IS AT STAKE?

New Jersey Courts are required to strictly apply procedural safeguards when a child’s custody is at stake due to the substantial impact that a custody decision has on the parent-child relationship. A review of these safeguards is warranted in light of the Appellate Division’s recent decision in In the Matter of K.S.H., where it reversed a trial court’s custody Order because it found the existence of a genuine dispute requiring the Court to provide the parties’ with prior notice of its intended action to change custody and to conduct an evidentiary hearing on the issue.

A lengthy procedural history preceded the events that are at the core of this discussion involving several attempts by DYFS and a child’s Law Guardian to have physical custody of the child removed from his mother based on allegations of neglect. Ultimately, a trial court in 2007 entered an order directing that the child be removed from the mother and that DYFS be granted physical custody because it deemed the mother to have abrogated her responsibilities as the child’s caretaker and violated related court orders and directives. Of import here was the decision of another trial judge in 2008 to reject DYFS’s permanency plan to terminate parental rights followed by adoption, granted visitation to the grandmother, and ordered that physical custody be returned to the mother all without providing notice to the parties of its intent to change custody. DYFS and the child’s Law Guardian were granted leave to appeal the second trial judge’s findings, arguing that the second trial judge erred by ordering the return of the child to the mother’s custody without having provided prior notice to the parties and without conducting an evidentiary hearing regarding the custody change

In agreeing with DYFS and the Law Guardian, the Appellate Division reiterated the need for a decision involving custody to be based on evidence admitted during a hearing held on the record with all documentary exhibits considered by the court clearly identified for appellate review and with testimonial evidence presented through witnesses who are under oath and subject to cross-examination.  

The Appellate Division found that the trial judge violated basic rules of trial practice and failed to provide a complete record for appeal because the order returning custody was premised upon a mere conference between the court, DYFS’s attorney, the Law Guardian, the mother on her own behalf, and an unidentified DYFS caseworker present in the courtroom at the time. There was no competent evidence supporting the decision – no witnesses were identified, no documents were admitted into evidence, there was no attempt to exclude inadmissible hearsay, and the trial court relied upon reports that had not been admitted into evidence.   As a result, the order returning custody was vacated and the matter remanded for an evidentiary hearing.

As set forth in another recent post in this Blog, the Appellate Division will not hesitate to reverse and remand a decision of a trial judge made without application of necessary procedural safeguards, including the conducting of a plenary hearing, especially when the custody of a child is at stake.

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Posted on November 7, 2008 by Eric S. Solotoff

DOES A NON-CUSTODIAL PARENT HAVE TO CONTRIBUTE TO A NANNY FOREVER? PROBABLY NOT

In some cases, either parties will agree or a court will Order the payment for a nanny.  In fact, this is typically in the nature of work related child care which is something that parents are typically required to share the costs of in accordance to their incomes under the Child Support Guidelines. 

A question that is more interesting is for how long must we pay for a nanny.  In hign income cases, perhaps this is less of an issue because it becomes more of a lifestyle issue than work related child care.  In fact, in many cases like that, there is a nanny or nannies even when one parent does not work outside of the home.  That is why I say it is more of a lifestyle issue.

What happens when there is a nanny in a garden variety case where the resources are more limited?   In an unreported Appellate Division case released on November 7, 2008 entitled Herega v. Figueroa that issue was addressed to a certain extent. To see the full text of the case, click here.

In this case, it appears as though the father had custody of the children.  At time of the divorce, both children were not in school full time.  As such, recgonizing a need for assistance, the wife agreed to pay for half of the nanny.

However, the current litigation stems from her motion to cease contributing to the nanny among other things.  There were two major rationales given.  First, she alleged that the father and the nanny were now a romantic couple - indeed sharing the same bedroom.  Second, since the kids were now 6 and 9 and in school full time, she asserted that there was no need for a full time nanny.  In fact, their school offered low cost before and after care.  The husband denied that there was a relationship and otherwise opposed the motion.  The trial court denied the motion.

The Appellate Division reversed and remanded the matter for a plenary hearing (trial) on the issue of whether there was a relationship between the nanny and the husband.  Further, the hearing was to address whether the nanny was still needed given the maturation of the children and the availablity of after care at school.

While not reported, this case remains interesting for the above reasons.  In addition, it is another example of the Appellate Division reminding trial judges that plenary hearings are required when there are important factual issues in dispute.

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