Posted on September 9, 2009 by Sandra C. Fava

SANCTIONS - A REALISTIC PUNISHMENT

Week after week I find myself reading decisions that deal with the imposition of sanctions against one party in a family law matter and the validity of these sanctions.  Oddly enough it seems as though the recent flood of sanction-related cases have to do with a party's aberrant behavior and the court's attempt to curb this behavior in the form of a financial punishment.

Sanctions are not a new method of coercion or punishment in the court system.  Non-family related matters often use sanctions and some may say do so more willingly that family part judges. 

As with anything in life, there are times when we are asked or have to do things that we simply don't want to do or perhaps don't feel like doing at that moment.  Well imagine that feeling mixed with the high emotions that often run in any family law matter.  The simple reality is that there are times when despite an attorney's best efforts, a client simply will not do what they are asked to do or what the court and rules require them to do.  This is not only an uncomfortable and perhaps frustrating position for the attorney but even more importantly, a precarious position for the client. 

When the courts are involved disobedience on what one may deem is 'not a big deal' or 'won't make a difference' can carry heavy consequences.  Most frequently a court will hold one party in violation of litigant's rights.  In simplest terms, that means that one party has violated the rights of the other party and the court is noting this violation in a formal record, by way of an Order memorializing the violation.  The next step or often coupled with a finding of a violation of litigant's rights is an award of counsel fees to the non-violating party.  Often as a deterrent to future non-compliance and perhaps even as a punishment, the court will order the non-complying party to pay either all or a portion of the other party's counsel fees.  Oftentimes, this is enough to get the misbehaving party's attention.  It may not be though and where it is not and all other remedies have proven fruitless, a court can and will order sanctions. 

Sanctions are often a monetary fine but tend to be more serious then a payment of counsel fees.  I have seen sanctions in the form of a daily payment for each day that a party is non-compliant.  I have also seen bench warrants issue for the arrest of a non-compliant party.  In family law matters, these two methods are used - but they are far from everyday occurrences, as court's many times give litigants way too much leeway even when orders are clearly violated.

So what's with all the fuss from the Appellate Division about these sanctions if they are used when everything else fails you ask?  Well the recently decided case that I'm referencing dealt with an award of future sanctions for future non-compliance of an order.  In the matter of Sheinbaum v. Campbell, A-3857-07T3, decided August 25, 2009, the court ordered a $500 sanction against a party for each future violation of a court Order.  In this highly litigious matter where several motions and emergent applications had been filed where the one party failed to comply with multiple Orders issued, the trial judge ordered the above future sanction in conjunction with counsel fees and other relief.

On appeal, the Appellate Division held that the ordering of a $500 sanction for each future violation was "premature".  In addition, because the lower court did not explain how it arrived at the the amount; why a smaller sanction would not have been effective; or consider the party's inability to pay, the Court could not uphold the Order as it stood.

The message - perhaps if the lower court had explained how it came to the $500 amount and justified this amount versus a smaller amount and considered the party's ability to pay, the sanction may be have been upheld.  That remains to be seen.  In navigating your way through the court process, keep in mind that your non-compliance could have serious monetary or other consequences.  Then again, maybe it wont. 

EDITOR'S NOTE:  I have previously blogged about frustrations by lawyers and litigant's alike about a court not enforcing their own orders, not granting counsel fees when enforcement motions are filed, etc.  Too many recalcitrant litigant's know this too and take advantage of the system, knowing it will cost the other party money to get what they are entitled to and that they may suffer a slap on the wrist.  As a young lawyer, I practiced in Colorado for about 2 years after practicing in NJ for a year.  After my brief experience in NJ, I was shocked dung my first contempt hearing when the dad was cuffed and sentenced to 6 months for contempt for failing to pay child support.  Attorneys in other states have commented to me that they are surprised how lax our courts are in enforcement matters.  That does not mean that a litigant should give up and not file enforcement motions.  As in the case the Sandra blogged about, eventually enough was enough.  That said, even when sanctions were imposed, they did not hold up.  ERIC S. SOLOTOFF

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Posted on August 14, 2009 by Sandra C. Fava

WHO PAYS FOR WHAT? SANCTIONS AND THE OBLIGATION TO CONTRIBUTE TO COLLEGE

Previously I have blogged on both the issue of sanctions assessed by a court against one party in a divorce or post divorce matter and also the obligation to contribute to the costs of a college education for a child and to what extent.

These issues are often addressed to the Appellate Court of New Jersey as in many family law matters they are topics hot for debate.  Most recently, the Appellate Division in the unpublished decision of Hikes v. Hikes, Decided August 13, 2009, Docket No. A-6642-06T2 addressed both the issue of sanctions and the payment of college for a child.

Sanctions may be requested by a party or  granted by a court on its own in a situation where one party acts in extreme bad faith or is non-compliant.  Sanctions can be viewed as a sort of punishment for that extreme bad faith or non-compliance.  This is especially so when the other party acts in good faith and is complaint. 

In the Hikes matter, which stemmed from the ex-husband's post divorce application to terminate his alimony responsibility based upon his interpretation of language in their Settlement Agreement, the trial court found that the Husband acted in extreme bad faith by his continued refusal to comply with discovery requests and Court Orders. The judge also found him completely lacking in credibility on several issues. As a result of those findings, the trial judge imposed a $100 per day sanction as reasonable. These sanctions totaled $212,400. The trial judge further found that defendant had the ability to pay this amount.

On appeal, the Court held that defendant was entitled to remand on the $212,400 sanction. The Court found that the trial judge premised his sanctions Order primarily upon his unfavorable assessment of defendant's credibility. The Court noted it did not "necessarily take issue with that assessment", but held it was unclear from the record whether and when defendant ever complied with the production of the ordered discovery.

As for the college issue, this case is distinct in that by way of an Order dated February 10, 1999, the trial court declared the child emancipated as of June 30, 1996 and denied plaintiff's request for contribution towards the child's college costs. The judge then denied plaintiff's motion for reconsideration of those issues. Plaintiff appealed from those Orders and the Appellate Division reversed and remanded for a plenary hearing. Thereafter, the parties both got ill and the matter was dismissed without prejudice until they were healthy enough to resume addressing the issues.

The factors a court must consider when determining a parties' obligation to contribute to college expenses was set forth in Newburgh v. Arrigo, 88 N.J. 529 (1982) and were subsequently codified by statute at N.J.S.A. 2A:34-23(a) as follows:

1. Whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education.

2. The effect of the background, values, and goals of the parent on the reasonableness of the expectation of the child for higher education.

3. The amount of the contribution sought by the child for the cost of higher education.

4. The ability of the parent to pay that cost.

5. The relationship of the requested contribution to the kind of school or course of study sought by the child.

6. The financial resources of both parties.

7. The commitment to and aptitude of the child for the requested education.

8. The financial resources of the child, including assets owned individually or held in custodianship or trust.

9. The ability of the child to earn income during the school year or vacation.

10. The availability of financial aid in the form of college grants and loans.

11. The child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance.

12. The relationship of the education requested to any prior training and to the overall long-range goals of the child.

In June 2007, a three day plenary hearing was held to determine the issues. As a result of that hearing, the trial judge determined the child emancipated as of August 2004 (the day he graduated from Kean University). The trial judge also found that defendant would have paid for the child's college expenses had he still been living with the family based upon evidence that the parties had paid for an older sibling's college expenses. Lastly, the trial judge found that defendant should be responsible for all of the child's college expenses and that he had the ability to pay those expenses given the value of his financial assets.

Defendant appealed those findings. The Appellate Division affirmed the trial court's findings on this issue. In doing so the Court held that while attending college, the child lived either at home, in a dorm or in off campus housing, all paid by plaintiff. Further, the Court found that plaintiff paid for the majority of the child's college expenses. Given the child's need for financial help to attend college and his dependence upon his mother for support, the trial judge properly concluded that the child was not emancipated until he finally achieved his goal of college graduation. Plaintiff provided documented proof of the expenses she paid on behalf of the child. The trial judge properly found that as a "financially capable parent[]", defendant has the obligation to reimburse plaintiff for those expenses.
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Posted on July 3, 2008 by Sandra C. Fava

A CLIENT'S CONDUCT MAY HAVE FAR REACHING IMPLICATIONS

Have you ever wondered what, if anything, happens when an uncontrollable spouse disrupts a settlement conference spewing tirades against his divorcing spouse and/or his/her attorney?  What about when a spouse, unhappy with a judge's ruling on a motion, angrily confronts the adversary in the hallway of the courthouse?  Or when a deposition is abruptly ended because the witness walks out of the room and refuses to return?  Oftentimes these incredulous behaviors go without consequence but that may no longer be the case.

Judge Eduardo C. Robreno recently addressed what the consequences should be for these types of actions in GMAC Bank v. HTFC Corp., 248 F.R.D. 182 (E.D. Pa. 2008).  During the defendant-corporation's chief executive officer's deposition, the witness acted uncivil, hostile and vulgar frustrating and making it nearly impossible or the plaintiff's attorney to elicit legitimate answers.  In reviewing the deposition transcript, Judge Robreno found that despite the claim arsing from a contract dispute, the word 'contract' only appeared 14 times in the transcript as opposed to a certain vulgar four letter word, which appeared 73 times.

When addressing the plaintiff's motion for sanctions, the defendant asserted the defense that he suffered from a mental condition and was experiencing adverse effects to medication taken the day of the deposition.  Counsel for the defendant conceded that his client's conduct was crude and vulgar.  Judge Robreno found that the claim of mental instability did "not justify or mitigate his abusive, obstructive and evasive behavior".  The court granted the plaintiff's motion and ordered defendant to pay the expenses of the attorney's fees in connection with the motion ($13,026.00), deposition costs ($3,685.00) and 75% of plaintiff's attorney's fees at the deposition ($12,610.95).

In addition, the judge found the defendant's attorney jointly and severally liable for $29,322.00 in fees and costs citing that the attorney "failed to interecede and correct (his client's) violations of the Federal Rules," "joined in the offensive conduct," laughed at his client's abusive behavior toward plaintiff's counsel, and basically "emboldened (defendant) to further flout the procedural rules."

The lesson to be learned here is simple - misbehavior in legal proceedings could be extremely expensive not to mention hurt your case.  Neither of which are necessary or worth it.  Despite the stress and frustration that oftentimes accompanies a litigant facing a difficult litigation, such as a hotly contested divorce or custody proceeding, keeping your cool and following your attorney's advice may not only help with your litigation strategy but also save you some money!

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