Very often, uncertified expert reports are attached to certifications and courts are asked to accept them though there is no ability to cross examine the expert, etc.  Sometimes, that even happens at a default or other hearing.  That is, a party tries to put the report into evidence without any testimony – direct or cross-examination of the expert.  A default hearing occurs for a few reasons.  Sometimes, the defendant never actually answers the Complaint. Other times, a party is defaulted because they fail to answer discovery or cure discovery deficiencies.  Other times, a default can occur if they don’t show up for trial.

This is what happened in the recent unreported (non-precedential) opinion in the case of A.T.M. v. S.M. decided on November 10, 2020.  While this is quite a long opinion (36 pages) for an unreported decision, for purposes of this post, most of the facts are not important.  That said, in this case, the plaintiff was defaulted because she did not appear at trial, claiming that she was both ill and out of the country.  At the default hearing, the value of defendant’s medical practice was a substantial issue.  During the case, the parties had a joint forensic accountant who issued a report valuing the practice at $506,000.  He also traced certain marital funds that were at issue.

At the trial, without conducting voir dire (that is, questioned the expert regarding his credentials), the court qualified the accountant as an expert in forensic accounting and admitted his report into evidence without requiring him to testify.  In the court’s decision, the accountant’s opinions were accepted.  Plaintiff appealed arguing that the trial court erred by admitting the forensic accountant’s valuation report into
evidence at the default hearing without the accountant testifying and being subject to cross-examination.   The Appellate Division agreed and reversed the trial court’s decision.  In so deciding, the Appellate Division went back to basics regarding hearsay and held:

“Hearsay is ‘a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.'” State v. Branch, 182 N.J. 338, 357 (2005) (quoting N.J.R.E. 801(c)). “Hearsay is inadmissible unless it falls within one or more of the exceptions enumerated in our evidence rules.” State ex rel. J.A., 195 N.J. 324, 336 (2008) (citing Branch, 182 N.J. at 357).

Expert reports “are hearsay and generally are not admissible.” Corcoran v. Sears Roebuck & Co., 312 N.J. Super. 117, 126 (App. Div. 1998) (citing Hill v. Cochran, 175 N.J. Super. 542, 546-47 (App. Div. 1980)). A nontestifying expert’s opinion constitutes inadmissible hearsay. Brun v. Cardoso, 390 N.J. Super. 409, 422 (App. Div. 2006). Admission of a non-testifying expert’s report deprives the opposing party “of the ability to cross-examine the author of the report on [a] central issue of the case.” Ibid. 

The Appellate Division noted that if the expert had testified and substantiated his findings, his report may have been admissible to assist the trial court. That said, that isn’t what happened.  Rather, the judge said that he did not see a reason for the expert to testify “without anybody here to cross examine him…”  The judge also said that …” I have looked at [the report] and there is nothing that jumps out at me” and “there is nobody here to challenge his findings.”  Moreover, the plaintiff objected to the report being entered into evidence.

The Appellate Division then went into basics regarding trial practice, noting:

“Our legal system has long recognized that cross-examination is the ‘greatest legal engine ever invented for the discovery of truth.'” State v. Basil, 202 N.J. 570, 591 (2010) (quoting California v. Green, 399 U.S. 149, 158 (1970)). Cross-examination of an expert is often a crucial element in determining the accuracy, reliability, and probative value of the expert’s findings and opinions. See State v. Martini, 131 N.J. 176, 264 (1993) (“To determine the credibility, weight and probative value of an expert’s opinion, one must question the facts and reasoning on which it is based.” (citing Johnson v. Salem Corp., 97 N.J. 78, 91 (1984))).

The Appellate Division concluded that by admitting the expert’s report in evidence without requiring him to testify and be subjected to cross-examination, the trial court effectively prevented plaintiff from questioning him regarding the facts relied upon by the expert, his method of valuation, and the accuracy of his conclusions both as to the valuation issue and the dissipation issue.  By relying on the findings and opinions
expressed in the report, the court decided major issues in the case based solely on inadmissible hearsay and that this error was “clearly capable of producing an unjust result.”  Accordingly, the decision was reversed.

Separately, the court was critical of the entry of default given that plaintiff said that she had medical issues.  Moreover, when default is entered, the proceeding party is supposed to file a Notice of Proposed Final Judgment 20 days in advance which didn’t happen here because the default was entered on the first day of trial.  Accordingly, the default was reversed, as well.

Bottom line, while it was seemingly appealing to proceed without the testimony of the joint expert, had he simply been called to testify, the result in this case may have been different. .


Eric S. Solotoff, Partner, Fox Rothschild LLPEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or esolotoff@foxrothschild.com.

Many people opt for binding arbitration because it is supposedly faster and cheaper, and binding – thus final.  Some people have to arbitrate their matters that they cannot settle amongst themselves, because there are issues that they cannot try before a court given the court’s mandatory obligation to report certain matters to the proper authorities (e.g. taxing authorities). While many people seek the finality of a binding result, many others are concerned that because an arbitrator is human, she/he could make a mistake.  Accordingly, they want the ability to appeal the matter to a reviewing body of some sort.  However, the two main arbitration statutes have a very limited right of review.  Moreover, as we found out in 2007 in Hogoboom v. Hogoboom, parties cannot contract for a right of appeal of an arbitration decision to the Appellate Division.  So what do many people do?  As I have said on this blog before, their arbitration agreement provides a right of appeal to appellate arbitrators and expands the ability to review a matter to errors of law and fact, just like any other appeal.   Yet, time after time, we see Appellate Division decisions either rejecting appeals of arbitration awards or affirming the entry of an arbitration award and noting the limited rights of appeal.

These issues came up again in the case of Levinson v. Levinson, an unreported (non-precedential) Appellate Division decision released on November 9, 2020.  In the case, after mediation failed, the parties agreed to arbitrate their matter pursuant to the New Jersey Alternative
Procedure for Dispute Resolution Act (APDRA), N.J.S.A. 2A:23A-1 to -30.  After the arbitration was concluded, the plaintiff moved to confirm the arbitration award and the defendant moved to set it aside claiming fraud and that the arbitrator exceeded his authority.  The trial court entered a judgment of divorce and order incorporating the final arbitration decision. In its opinion, the trial judge rejected defendant’s arguments, finding the arbitrator reached his decision after reviewing ample evidence submitted by both parties and determining which of
the expert opinions in the record was most credible.  However, in reaching its decision, the trial court applied provisions of the Uniform Arbitration Act (UAA), N.J.S.A. 2A:23B-1 to -31, establishing the grounds on which the court may vacate or modify an arbitration decision, rather than the corollary provisions of the APDRA, which were applicable to the parties’ motions.

After substantially more motion practice, an appeal followed which ultimately affirmed the trial court’s orders even though the wrong statute was applied.  In doing so, the court noted right off the bat that the scope of re3view of an arbitration award is narrow.  The court then reviewed the law and the different arbitration statutes noting that when parties to a matrimonial proceeding agree to arbitrate disputed issues, they may designate whether the proceeding will be submitted pursuant to the APDRA or the UAA – and absent a specific designation, the UAA applies.

Under the APDRA, the court may only vacate, modify or correct an award for limited reasons, as follows:

(b) In considering an application for vacation, modification or correction, a decision of the umpire on the facts shall be final if there is substantial evidence to support that decision; provided, however, that when the application to the court is to vacate the award pursuant to paragraph (1), (2), (3), or (4) of subsection c., the court shall make an independent determination of any facts relevant thereto de novo, upon such record as may exist or as it may determine in a summary expedited proceeding . . . .
(c) The award shall be vacated on the application of a party who . . . participated in the alternative resolution proceeding . . . if the court finds that the rights of that party were prejudiced by:

(1) Corruption, fraud or misconduct in procuring the award;
(2) Partiality of an umpire appointed as a neutral;
(3) In making the award, the umpire’s exceeding their power or so imperfectly executing that power that a final and definite award was not made;
(4) Failure to follow the procedures set forth in this act, unless the party applying to vacate the award continued with the proceeding with notice of the defect and without objection; or
(5) The umpire’s committing prejudicial error by erroneously applying law to the issues and facts presented for alternative resolution.
. . . .
(e) The court shall modify the award if:
(1) There was a miscalculation of figures or a mistake in the description of any person, thing or property referred to in the award;
(2) The umpire has made an award based on a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted;
(3) The award is imperfect in a matter of form, not affecting the merits of the controversy; or
(4) The rights of the party applying for the modification were prejudiced by the umpire erroneously applying law to the issues and facts presented for alternative resolution.

The Appellate Division further noted that under the APDRA, there is no appellate review of the trial court’s decision to confirm, modify, or correct an arbitration award.   Moreover, as long as the trial court provides a rational explanation for its decision, the Appellate Division must dismiss the appeal “regardless of whether we may think the trial judge exercises that jurisdiction imperfectly.”  (Citing Fort Lee Surgery Ctr., Inc.
v. Proformance Ins. Co., 412 N.J. Super. 99, 104 (App. Div. 2010)).

By contrast, under, the UAA, the rights of review are as follows:

 a. Upon the filing of a summary action with the court by a party to an arbitration proceeding, the court shall vacate an award in the arbitration proceeding if:
(1) the award was procured by corruption, fraud, or other undue means;
(2) the court finds evident partiality by an arbitrator, corruption by an arbitrator, or misconduct by  an arbitrator prejudicing the rights of a party to the arbitration proceeding;
(3) an arbitrator refused to postpone the hearing upon showing of sufficient cause for postponement, refused to consider evidence material to the controversy, or otherwise conducted the hearing contrary to section 15 of this act, so as to substantially prejudice the rights of a party to the arbitration proceeding;
(4) the arbitrator exceeded the arbitrator’s powers;
(5) there was no agreement to arbitrate . . . .;
(6) the arbitration was conducted without proper notice of the initiation of the an arbitration . . . .

The court may modify or correct an arbitration award under the UAA pursuant to N.J.S.A. 2A:23B-24. if:
(1) there was an evident mathematical miscalculation or an evident mistake in the description of a person, thing, or property referred to in the award;
(2) the arbitrator made an award on a claim not submitted to the arbitrator . . . .;
(3) the award is imperfect in a matter of form not affecting the merits of the decision on the claims
submitted.

In dealing with the fact that the wrong statute was applied, the Appellate Division found that the relevant review provisions were “substantive equivalents and thus, defendant suffered no meaningful harm by the application of the wrong statute.

Again, the issue here, stems not from the review, but arguably from the agreement to arbitrate, because agreeing under either statute, without contracting for an appellate arbitration, limited the scope of the review from the outset.


Eric S. Solotoff, Partner, Fox Rothschild LLPEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or esolotoff@foxrothschild.com.

Over the years, I have blogged about alimony formulas, “rules of thumb” and similar ways that alimony is settled.  I say settled, because in most instances, courts are not allowed to use a formula to determine alimony.  Basically, there are two types of formulas that we often see.  One takes a percentage of the differences in the parties’ income (or imputed incomes) to come to a fixed amount of alimony to be paid.  The other – often used in cases where someone’s income fluctuates substantially from year to year – calculates alimony on some percentage of total income, often up to a cap but sometimes not.  In most of those cases, there is a floor to the alimony too.  Just as a court cannot use a formula for a fixed amount of alimony so too can they not really use a formula for variable alimony either though I have seen the Appellate Division affirm constructs like this from time to time.

On November 16, 2020, the Appellate Division issued an unreported (non-precedential) opinion in the case of P.J.W. V. E.B.W., which handled an agreed upon formula in an interesting way.  During the last 4 years of the marriage, the Husband’s income averaged $910,000 per year.  In the parties 2013 divorce, they agreed that the husband would pay the wife of 25% of husband’s total gross compensation up to a total of $1,250,000.00 per year in alimony (payable as a 25% of his salary when received and 25% of the bonus up to the cap.  The Agreement also included a standard clause that the parties could seek to modify alimony based upon a change of circumstances.

In the first 5 years post divorce, the Husband’s income averaged $850,000. However, in October 2017, he was notified that he was going to be fired as of January 5, 2018.  After a job search, the husband obtained a job with a base income of $200,000 ($220,000 less than his prior base income).  The Husband then filed a motion to reduce his alimony and child support based.  The Court found that there was a prima facie showing of a change of circumstances and ordered discovery and a plenary hearing.  Both parties hired employability experts, as a result.  Before the plenary hearing, the husband took a new job with a $265,000 salary with a potential for bonuses and stock options, causing the expert reports to be updated.

After the plenary hearing, wherein the experts differed on whether the husband made a good faith job search, the trial court granted plaintiff’s motion to modify his alimony obligations by requiring plaintiff to pay twenty-five percent of his salary and bonuses based on his compensation from his new employer and the appeal followed.  The Appellate Division affirmed the decision as to alimony.

The rationale for the decision was fascinating, however.  First, the Appellate Division agreed with the trial court that the 25% formula was not limited solely to the husband’s employer at the time of the divorce.  But the Appellate Division went even further, suggesting in a way, that the plenary hearing was not even necessary, when they held:

Given our interpretation of the Support Agreement, plaintiff did not need to show a change of circumstances. Nevertheless, even if plaintiff had to show such a change, the factual findings made by the family court establish that plaintiff showed a change of circumstances warranting a reduction in his alimony obligation. There is no dispute that plaintiff was fired from his job at
Barclays. Thus, he lost the position that was compensating him over $900,000 per year. (Emphasis added)

The Appellate Division also rejected the wife’s claim that the husband was voluntarily underemployed, deferring to the trial court’s opinion that expressly found that the husband had engaged in good-faith efforts to obtain new employment maximizing his compensation.

The cause for alarm was the finding that, per the Agreement, that the husband didn’t need to show a change of circumstances.   Despite what appears to be a reduction in income in the neighborhood of $400,000 or more, that seemingly didn’t make a difference because the formula was simply enforced.  Now, maybe in this case it wouldn’t have made a difference because the court found that the job search was in good faith and there was a change of circumstance.  That said, under the same rationale, if the agreement was strictly enforced, it might not matter if there was a good faith job search.  While the result in this case may have been fair (though I suspect that the wife disagrees), if a future court follows this rationale, maybe the result won’t be as fair.


Eric S. Solotoff, Partner, Fox Rothschild LLPEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or esolotoff@foxrothschild.com.

The newly unreported (does not set precedent) decision of Covone v. Curreri makes two bold moves: (1) asserting that the passage of time is not a change in circumstance warranting a modification to child support and (2) confirming that the trial court has authority to allocate expenses between parents even without proof of their financial circumstances.  When rendering this decision, affirmed by the Appellate Court, it seems that the trial court inadvertently gave some tips for couples with young children who are divorcing/setting child support.

Kid counting money

In this matter, the parties had a child in 2002 and then divorced in 2003.  In their divorce agreement, the parties set the former husband’s child support obligation and agreed to review it in April 2005.  The parties then entered into a Consent Order with an updated child support amount in 2005, and included cost of living adjustments (COLA) to increase child support in the years that followed, which they did.

In 2010, the parties agreed to retain a Parent Coordinator (“PC”), which is a professional (usually a family law attorney) who helps resolve custody/parenting time related disputes between parties, with the goal of reducing litigation.  Unless otherwise authorized by agreement of the parties, a PC’s recommendations are not binding.  Thus, if one party does not agree to the recommendation, it does not take effect.  The other party can file an application with the Court seeking to incorporate the recommendations into a Court Order, which is what happened here when the former husband refused to sign a Consent Order that the PC drafted with respect to parenting time and child support.

As should be expected, after the former husband refused to sign the Consent Order, the former wife filed a motion with the Court seeking:

  •  Adopting the PC’s recommendations;
  • Compelling the former husband to attend therapy with their daughter;
  • Compelling the former husband to file an updated Case Information Statement (setting forth income, budget, assets and liabilities) in order to recalculate child support, arguing that the passage of time (13 years) is a change in circumstance warranting such recalculation; and,
  • Compelling  the former husband to contribute to educational and extraordinary expenses on behalf of their daughter, such as SAT costs, driving lessons, college visits, prom costs and senior class trip. Practice tip: the sharing of these expenses are often outlined in the divorce agreement even when a child is so young that the actual allocation cannot be defined.  The agreement can simply list that extraordinary expenses will be shared at the relevant time based upon the parties’ financial circumstances, which would have required the financial circumstance/Case Information Statement exchange that the former wife sought.

Close up of wooden gavel isolated on white background

After a hearing and updated briefs from each party, the Court denied the former wife’s request for the former husband to file an updated Case Information Statement and for the recalculation of child support simply because 13 years had passed since the present obligation was set.  The Court did not seem to care that the former husband was driving a Maserati and had other luxury assets.

Citing to Martin v. Martin, the Court reiterated that the passage of time is not a change in circumstance warranting a child support modification and, in fact, that is why we have COLAs.  Here, the parties had implemented COLAs since the last time child support was determined, resulting in an increase of over $2,000 over those 13 years.

On the other hand, the Court did find that the child’s status as a high school senior did result in the parents having to incur additional expenses that are not covered by child support, thereby ordering that the parties equally share the expenses requested by the former wife and for the parties to confer before incurring any such expense above $500.

In a somewhat surprising fashion, the Appellate Division affirmed the decision.  While the child support order seems on point because there was no evidence of a change in circumstance  with respect to child support that would open up discovery of the party’s financial circumstances (required for post-divorce financial issues), it is questionable as to how the trial court could have determined that the extraordinary expenses should be equally shared without proof of financial circumstances.  Even the Child Support Guidelines state that extraordinary expenses are to be shared pro rata, i.e.: in proportion to income.  If using the Guidelines to calculate child support, which the parties did here, there is even a specific line in the Guidelines that demonstrates each party’s percentage share of income.  Moreover, generally in order to have a court compel the sharing of expenses, the cost (or estimated) cost must be provided.  In fact, the Case Information Statement, addressed above, asks for an attachment when seeking contribution toward college expenses.

The Appellate Division, in affirming the decision with respect to equal allocation for the child’s expenses, said that the Court exercised its discretion in the absence of accurate financial circumstances of either party.  This ignores that the former wife asked for the former husband to be required to produce such proofs (and presumably she would have had to also), and rewards the former husband for refusing to do so.  If his obligation would have otherwise been more than 50% upon such discovery exchange, the former wife is the one making up the difference out of pocket.

Thus, even if the law is correct to deny a discovery exchange with respect to base child support, it should have required financial circumstance proofs before allocating child-related expenses – understanding that it could have opened the door to a child support recalculation. Even if it did, child support is for the child – not a reward or punishment for the parents – so if ultimately a recalculation resulted, where is the harm?

Beyond the takeaway of never being so sure what the court or Appellate Division will decide, a good tip is for couples divorcing with young child.  In many of those circumstances (unless one part is significantly more wealthy than the other), you may want to build in reviews over time with required disclosures, and confirm an agreement to share extraordinary expenses at the relevant time based on financial circumstances at the time.  Both of those agreements will likely require a financial disclosure and you will not be left without modifying child support while your former spouse is driving a Maserati and equally paying for expenses when your share perhaps should have been less.


Lindsay A. Heller is a partner in the firm’s Family Law practice, based in its Morristown, NJ office. You can reach Lindsay at 973.548.3318 or lheller@foxrothschild.com.

Lindsay A. Heller, Associate, Fox Rothschild LLP

Two common questions I hear from potential clients, as well as the general public, are (1) are the courts open and (2) can people even file new matters (divorce, enforcement, modification, etc.) Some express shock when then learn that the Courts never actually closed – well sort of.

In March and early April, there was, let’s say, a hiccup of sorts as both the courts, attorneys and litigants got used to working remotely and dealing with court business remotely.  The Court buildings were basically closed to the public and judges and court staff had only limited access (some said once a week to pick up papers).  At some point, we would hear, anecdotally of some limited people returning the the courts.  Accordingly, many events that had been scheduled were delayed, some for a few weeks, others significantly longer.   At first, courts were supposed to have drop boxes for filing, but some counties didn’t have them and we were told to mail in filings.  Once they arrived at the court, they would sit for a few days until they were deemed safe to open.  Also, faxes were pointless because it could take days/weeks until anyone saw a fax.

That said, it didn’t take long for new systems and technologies to be rolled out so that we could get back to some semblance of business as usual.  While most of the other parts of the the court, including the Appellate Division, use an e-filing system called E-Courts which is attached to the Judiciary web site, most of the family part did not.  We still don’t.  But, we were given access to a system called JEDS that was used for other things so that Complaints, Motions, even letters to the Court can be filed and/or transmitted to the judges.  JEDS, which continues to improve, has been a real game changes in terms of both efficiency, cost and getting documents into a judge’s hand much sooner than in the past.

In addition, even though most court staff are working remotely, either the calls ring to wherever they are and/or they return calls promptly – perhaps even more promptly than before.  Further, pre-COVID, emails directly with court staff (secretaries and law clerks), was on a judge by judge basis, and I would say that for many judges, you had to call, fax, mail or hand deliver letters.  Post-COVID, most if not all email addresses are available.

Pre-Covid, you would usually have to appear in court for settled/uncontested divorce cases to put through the divorce.  I say usually because there were are few counties that allowed for divorce by written submission.  In at least one of those counties, they would only do that if the defendant didn’t file an answer and it was a default judgment, meaning, if the matter was originally litigated at any level and then settled, you had to come to court to put through the divorce.  Post-Covid, any settled case can be put through via written submission.  In the first one that I did, I literally had the signed Judgment of Divorce emailed back to me within the hour.  In addition, Judges are handling uncontested hearings via Zoom, where the parties can testify about their causes of action and assent to the divorce agreement, and the court places the findings on the record then emails the Judgment of Divorce.  The only minor delay is getting the gold sealed/certified copy of the Judgment because, typically, those are only mailed out on the one day a week that the Judges and their staff are typically in the Court house.

Instead of going to court for Case Management and other conferences, they are now done via Zoom, Teams or via telephone.  This eliminates the costs of travel time and a lot of the hurry up and wait that occurred in the past.   Put another way, in the past, a 15 minute court appearance, including travel and wait time , could total several hours that were billed to a client.  Now it is often much more economical.  That does not mean that there isn’t virtual hurry up and wait, as I have languished in Zoom waiting rooms for hours, but generally, things are specifically scheduled for a block of time now and the wait times are more infrequent.

Early Settlement Panels are also being done remotely via Zoom and because each one is scheduled for a time slot, the travel and wait times are also eliminated.

One of the things that has relatively stayed on track from the beginning of the pandemic has been the hearing of motions.  I have argued motions via phone, Zoom and Teams and quite frankly, I am not sure that I don’t prefer it.  When via Zoom or Teams, sadly these are some of the few times that I have had to put a suit on since March, but I have drawn the line at shoes and socks since no one sees your feet.  I do however, wear pants, especially after seeing many Zoom “fails” on social media.

As to trials,  the Court system is in their Phase 2 and supposedly, the court house can be occupied by 10% of the judges on any day.  Originally, we were told that cases that were complicated and that had substantial exhibits would not be done via Zoom.  That seems to have gone out the window pretty quickly and essentially, most trials are going to be done via Zoom.  We have quickly learned how to best prepare how to present/share exhibits via Zoom.  The only case that I had where the Judge wanted to and will be scheduling an in person trial is one that commenced in 2017 and had been tried over 59 days between 2017 and the summer of 2019.  The reason that that case won’t be via Zoom is that there are probably close to 700 exhibits between the two sides and it would be impractical for the judge, and quite frankly the rest of us, to bring the boxes and boxes of binders home.

Now, for the most part, trials were the big casualty of COVID and weren’t being held, until recently.  However, in late July, the judges were told that trials had to get going again and all of a sudden, trial dates were being given out out of the blue.  Given the 10% rule and the need to accommodate jury trials in the criminal and civil part, and other matters that require in person trials/court appearances, I would imagine that most divorce, custody and post-judgment trials and plenary hearings will be done remotely until further notice.  This may also make it easier to hear from witnesses that are out of the jurisdiction, provided that they are willing to appear.

Even Domestic Violence trials are being done remotely, though it is my understanding that defendants can request in person Final Restraining Order hearings.  That said, that may delay the actual hearing.

The other thing that is delaying some of these virtual trials is that each county has a limited number of Zoom licenses/Zoom virtual courtrooms that they share among the judges in the Vicinage.  For one trial which will be continuing next week, the Judge has only had a few hours of Zoom time on the morning of the three trial dates.

Outside of court, we have met with many new clients for consultations via video conference or phone.  I can’t comment them from the client perspective, but from my perspective, they have been seamless and you forget that you are not in the same room.

Similarly, we have participated in many mediations remotely via Zoom.  By now, most mediators are adept at Zoom and can use the breakout rooms, moving people in and out so that you have the same privacy that you would have as if in an in person mediation.

We are even taking depositions remotely, which, after an initial learning curve, seems to be going reasonably well.

Though we have not done one, you can do arbitration remotely, essentially in the same way that you would do a trial remotely.

Finally, during the Spring, I mentioned in a prior blog post that after the end of quarantine, China saw an uptick in divorce filings. anecdotally, that seems to be happening in New Jersey, as well – getting back to the answer to the original question – yes the courts are open.  While I hate the phrase, “the new normal”, I will say that the family law bench and bar have adapted to dealing with family law cases, post-COVID.  Obviously, COVID accelerated by several years the courts and many attorneys use of technology.  While eventually, I would expect that trials and other court appearances may return to normal, COVID has probably exposed certain systemic inefficiencies that may be forever corrected using technology.  In any event, we remain open for business as usual – or at least the new “usual.”


Eric S. Solotoff, Partner, Fox Rothschild LLPEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or esolotoff@foxrothschild.com.

In a recent decision, E.H. v. K.H., the Appellate Division made clear that a finding of harassment in connection with the entry of a domestic violence restraining order must be based upon a judge’s findings on all elements of the criminal statute incorporated in the New Jersey Prevention Against Domestic Violence Act, qualified by any subsequent decisional law narrowing or clarifying the statute.

In E.H., the trial judge found that the Defendant had committed harassment against the Plaintiff and that there was a need for the protection of a domestic violence restraining order to prevent against the further acts of domestic violence.  The Defendant had, among other acts of violence, anonymously circulated copies of his Counterclaim for Divorce (which were filled with embarrassing allegations about the Plaintiff including allegations that she had affairs with her co-workers) to multiple individuals unrelated to the divorce litigation between the parties such as Plaintiff’s supervisor and parents.

The Defendant argued that he had a right to disseminate his Counterclaim for Divorce and that the trial Judge’s decision to enter a restraining order against him on this basis was an infringement on his First Amendment rights.  This issue came up several years ago in a New Jersey Supreme Court decision, State v. Burkert.  In Burkert, the Supreme Court narrowed the scope of what it viewed as an overbroad and vague definition of harassment set forth by the legislature.  That definition was:

[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse 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.

N.J.S.A. 2C:33-4.

In Burkert, the Supreme Court narrowed the definition of “any other course of alarming conduct” and “acts with purpose to alarm or seriously annoy” as “repeated communications directed at a person that reasonably put that person in fear for his safety or security or that intolerably interfere with that person’s reasonable expectation of privacy.”

In E.H., the trial judge failed to consider the narrowing of the definition of harassment in Burkert.  As a result, the Appellate Division held that the enumerated potential acts of domestic violence contained in the New Jersey Prevention of Domestic Violence Act not only incorporate, by reference, the statutorily defined elements, but also any modifications made to those elements by the Supreme Court to satisfy constitutional requirements.


headshot_diamond_jessicaJessica C. Diamond is an attorney in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

It is important to understand the requirements to obtain a Final Restraining Order or to defend against the entry of one.  Through case law and the New Jersey legislature, there are specific requirements that need to be met.  In the recent unpublished decision, the Court reaffirms that both litigants and attorneys cannot stray away from the basic tenets to obtain a Final Restraining Order (“FRO”).   In M.H. v. J.B., the Appellate Division reversed the entry of the FRO because none of the requirements were met.

In M.H. v. J.B., an unpublished decision, meaning non-precedential, the parties are sisters-in-laws – the Plaintiff is married to the Defendant’s brother, but had apparently never lived together. The two parties argued via text message over the Plaintiff’s son’s (the Defendant’s nephew’s) birthday party. The Plaintiff failed to answer the Defendant’s phone calls and the Defendant proceeded to text the Plaintiff and the Plaintiff immediately responded. This continued for a period of twenty minutes. A couple of hours later, the Plaintiff reinitiated the conversation where the Defendant responded to “stop harassing [her] and [her] family”. Then, the Plaintiff, once again, reinitiated further conversation and the Defendant asked in six different messages for the Plaintiff to stop texting her.

Both parties obtained Temporary Restraining Orders against the other the next day, alleging harassment. Both parties submitted that they were former household members pursuant to the PDVA. The trial court entered a Final Restraining Order against the Defendant, finding that although there was no prior history of domestic violence between the two parties, found that the Defendant or through a third person attempted to contact the Plaintiff “repeatedly”. Additionally, the court found that the FRO was necessary “to protect the welfare and safety of the victim” as the parties had “bad blood” between them. The Plaintiff’s only allegation was that she feared  the Defendant.

Here, the Appellate Court found that none of the factors were present for a FRO to be entered.  To obtain a FRO the following must all be met: (1) a relationship within the meaning of the Protection Against Domestic Violence Act (“PDVA”); (2) a finding that an act of domestic violence occurred as listed within the PDVA; and (3) that a restraining order is necessary to protect the victim “from an immediate danger or to prevent further abuse.” Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006).

First, the Plaintiff’s testimony was clear that the parties never lived in the same household at the same time as the Defendant. Although the Defendant contended that the Plaintiff lived at the Defendant’s mother’s house, this does not equate that the two parties resided there at the same time. Therefore, the parties did not meet the definition as former household members under the PDVA. Although the parties’ allegations may have been sufficient for the court to entertain the parties’ applications, the trial court failed to engage in any jurisdictional analysis to determine whether these parties met the definition of former household members.  This was a fatal flaw.

Second, the Appellate Division did not find that the text messages constituted as a predicate act of harassment as contemplated under the PDVA for entry of a FRO. Without a finding of a predicate act, the court cannot move to the second prong of Silver to determine whether a restraining order is necessary to protect the victim. Notwithstanding this factor, the trial court failed to engage in any analysis that a restraining order was necessary to protect the Plaintiff from immediate danger or future harm from the Defendant. In fact, the parties agreed that they had a good relationship prior to the texting incident. There were no prior incidents of domestic violence between the parties; the Plaintiff made no claims that she was in physical fear or danger of the Defendant; and the Plaintiff’s sole allegation was fear of the Defendant. Thus, the Appellate Division found that a restraining order was not necessary to protect the Plaintiff and reversed the entry of the FRO.

A new reported trial court decision, S.N. v. C.R.was released today, confirming that the remedy of partition is still available when non-married parties purchase a home together and there is evidence that the purchase is a joint venture, even if they do not have a writing as required by the 2010 amendment regarding palimony (addressing support for non-married cohabitants).  In other words, there is still an equitable remedy available for unmarried couples with a joint property (exclusive of title) notwithstanding the writing requirement for palimony.

It’s not often that trial court decisions are reported so when they are, we know it’s important!  As the court notes, this is an issue of first impression:

“Whether, in the absence of a writing, partition of a residence remains an equitable remedy among unmarried, cohabitating intimates engaged in a joint venture.”

As always, the facts are important.  Here:

  • The parties began their romantic relationship in 2010 and moved in together.
  • They purchased a home in 2012.  The home and mortgage were titled individually to the plaintiff, but the defendant was heavily involved, including:

“He selected and communicated with the realtor. He provided $10,000 of the $15,000 down payment. He chose and paid the inspector. He received the inspection report, which listed him solely as the client. He chose the closing attorney. He negotiated a $10,000 seller’s concession. Finally, both C.N. and S.R. were, and remain, named insureds on the homeowners’ insurance policy. On closing, C.N. thought he and S.R. ‘would live there forever.'”

  • They became engaged in 2016.
  • They had a destination wedding “ceremony” in 2018 with guests.
  • Despite the “ceremony”, they were never legally married.
  • They broke up in 2019.
  • While they lived together, the mortgage payments were drawn directly from the plaintiff’s bank account, having made a majority of the payments (87-90 of 96 total) and the defendant paid the remaining payments when the plaintiff was out of work.
  • In 2019, the defendant took a 401(k) loan to reduce the principal on the mortgage in order to eliminate the private mortgage insurance and reduce the monthly payment amount.
  • The defendant paid for the upkeep for the home (utilities, security, landscaping, pest control, and the like), purchased furniture for the home and oversaw contractors working on the home, as well as worked with a lawyer to appeal a tax assessment.

In July 2019, the plaintiff filed a complaint in the non-dissolution unit of the family part, which is dedicated to separating couples who were never married (i.e.: not eligible for marriage “dissolution”).  The plaintiff initially sought only child-related relief.  The defendant filed a counterclaim for child-related and financial relief and, in September 2019, amended the counterclaim to seek partition of their residence.  Following a failed mediation process, the court held a trial on the limited issue of partition, which lasted for two days, included testimony from both parties and “voluminous exhibits”, and the above facts were found by the court.

Notably, during trial, the plaintiff present testimony that was not credible, including that she perceived the home as her individual investment (even though she delegated significant tasks to the defendant) and she was evasive about the source of the down payment for the home.   Moreover, despite the claims about her “own” investment, when she completed her Case Information Statement, the plaintiff listed March 2012 as “date of marriage” and listed an engagement and wedding ring under personal property.

So, what is the court to do when one party to a relationship is heavily involved in the purchase, maintenance and increased equity to an asset titled in the other party’s name and they were never married?  Partition.

As the trial court noted here, “‘[p]alimony is the enforcement of a broken promise made for future support’ made between unmarried parties involved in a marriage-like relationship. ”  As of the 2010 amended statute (section (h) of N.J.S.A. 25:1-5) all palimony agreements entered after the amendment must be in writing and comply with the Statute of Frauds.

While S.N. and C.R. did not have such a “promise”, and they certainly did not have a writing, the court found that it didn’t matter because palimony is different than partition.  As compared to palimony,  a party to a partnership or joint venture is entitled to accumulated assets, as demonstrated by the following from Connell v. Diehl, a 2008 palimony case before the Statute of Frauds applied to post-amendment palimony agreements:

“Generally, a mere promise to provide lifetime support does not extend to a claim against assets owned solely by the promissor. However, unmarried cohabitating persons “who have engaged in a joint venture to purchase property in which they reside, are entitled to seek a partition.” Joint venturers are entitled to seek a partition of their property when their joint enterprise comes to an end.”  

Going a step further, the court reviewed the amendment to the statute and specifically found it does not apply to partition.  Upon making this precedential finding, the court moved on from palimony analysis to partition analysis, relying upon Mitchell v. Oksienik, a partition case with facts similar to the instant matter (they purchased a home during their relationship titled in only one party’s name and the mortgage in the name of the same party, received a loan from the other party’s parents for the down payment, and ultimately separated).  There, the Appellate Division found that partition is appropriate for unmarried cohabitants who engage in a joint partnership to purchase property and that formal agreements are not required because “a joint enterprise can be ‘inferred from conduct of the parties'”, and that title is “‘essentially irrelevant to an equitable action'”.

Not only did the trial court equate Mitchell to this case, but it further found that the current facts are even more compelling because the defendant contributed $10,000 of the $15,000 down payment and he resided in the home longer than the non-titled partner in Mitchell, as well as took charge in all of the processes leasing to the closing of sale, he is named on the insurance policy and made 10% of the mortgage payments, as well as paid most of the other house-related expenses.

To close the loop in the decision, the court reviewed the law of joint venture, which is defined as a “limited-purpose partnership” with “some or all of the following elements”:

  1. contribution “of money, property, effort, knowledge, skill, or other asset to a common undertaking”;
  2. joint property interest;
  3. right of mutual control or management;
  4. expectation of profit, or presence of an adventure;
  5. right to participate in profits; and
  6. “limitation of the objective to a single undertaking.”

Based on all of the above, the court found that even without a writing, the defendant is entitled to the equitable remedy of partition, which survived/is not impacted by the palimony amendment, for “unmarried, cohabitating intimates engaged in a joint venture.”

The takeaway from this case carries a lot of weight.  We are equipped to prepare Cohabitation Agreements outlining each party’s expectations in a signed writing and I still recommend that parties are always safer to have a writing to rely upon.  However, when you do not have such a writing, this case tells us that unmarried cohabitants can still achieve equitable relief and receive their share of an asset without the ability to pursue equitable distribution had they been married.

Notably, the case did not address what would have happened if one party was seeking support from the other, which would fall under palimony.  There, the support request without a writing that meets the Statute of Frauds would still fail as the relationship began after 2010 (thus, so too would have been the promise to provide support in the future), while the partition action could survive.

Final tip – pay attention to your documents.  Note how that trial court made a point to reference the plaintiff’s Case Information Statement, use of the “date of marriage” and listing engagement/wedding bands, which contributed to the lack of credibility finding.

For more reading, here is a link the prior palimony blog posts: https://njfamilylaw.foxrothschild.com/articles/palimony/


Lindsay A. Heller is a partner in the firm’s Family Law practice, based in its Morristown, NJ office. You can reach Lindsay at 973.548.3318 or lheller@foxrothschild.com.

Lindsay A. Heller, Associate, Fox Rothschild LLP

Most of our cases dealing with enforceability of prenuptial agreements stem from marriages that end by divorce and involve one party seeking to enforce the agreement and the other party seeking to invalidate the same document, or vice versa.   You can read about many of those cases on our NJ Family Law Blog.  However, the recent unpublished (non-precedential) decision of In the Matter of the Estate of James J. Gillette, addresses the enforcement of a prenupital agreement upon the husband’s death, when the wife sought to invalidate the agreement in order to claim her elective share from his estate in lieu of the terms of the agreement.  The case tells us that the rules for prenuptial agreement enforcement upon a spouse’s death are the same as they would be in the event of divorce.  Interestingly, both prenuptial agreements and a spouse’s waive of his/her right to elective share require the same financial disclosure as described in N.J.S.A. 37:2-38(c)(1) (for prenuptial agreements) and N.J.S.A. 3b:8-10 (for waiving right to elective share).

In this case, the parties entered into a prenuptial agreement on August 29, 2013 prior to their marriage in November 2013.  Both parties had independent counsel.  They affixed schedules of their full financial disclosure to the prenuptial agreement and acknowledged within the document they had time to review the agreement  with their respective counsel.  The parties agreed to share in certain assets, to keep premarital assets separate and to waive their right to elective share of the other spouse’s estate.

The husband passed away on April 21, 2017.  The wife received the proper notice of probate on May 11, 2017.  Pursuant to the relevant statute, she had six months to seek to enforce her elective share.  The wife, through counsel, provided letter notice of such intent on September 18, 2017.  However, she did not file the complaint until July 12, 2018 – fourteen months after the probate notice and, thus, out of time.  As part of her complaint, the wife sought to invalidate the prenuptial agreement, claiming that the husband did not provide full financial disclosure, which is the relevant issue for this post.

The wife was unsuccessful both in her initial application and her reconsideration application.   Note that in her reconsideration application, the wife claimed to have “newly discovered evidence” as to the husband’s financial circumstances that she claimed demonstrated his failure to provide full financial disclosure for the prenuptial agreement, but the evidence was not new because the wife/her daughter had the documents for over a year before she even filed the complaint and, even if it was new, the court found that it did not demonstrate what the wife claimed.  This appeal followed.

As noted by the Appellate Division, the plaintiff/wife bears the burden to demonstrate that the prenuptial agreement is unenforceable based upon the factors within N.J.S.A. 37:2-38(c)(1), which provides:

The burden of proof to set aside a premarital or pre-civil union agreement shall be upon the party alleging the agreement to be unenforceable. A premarital or pre-civil union agreement shall not be enforceable if the party seeking to set aside the agreement proves, by clear and convincing evidence, that:a.The party executed the agreement involuntarily; or
b.(Deleted by amendment, P.L.2013, c.72)
c.The agreement was unconscionable when it was executed because that party, before execution of the agreement:

(1)Was not provided full and fair disclosure of the earnings, property and financial obligations of the other party;
(2)Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided;
(3)Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party; or
(4)Did not consult with independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel.

d.The issue of unconscionability of a premarital or pre-civil union agreement shall be determined by the court as a matter of law. An agreement shall not be deemed unconscionable unless the circumstances set out in subsection c. of this section are applicable.

Regarding subsection (c)(1), the husband’s financial statement was attached to the prenuptial agreement and, importantly, Article X of the agreement explicitly stated that the wife reviewed the husband’s financial statement and “retained independent counsel ‘to review and represent her in conjunction with’
the Agreement prior to signing it.”

In order to support her claim that the financial disclosure was insufficient, the wife relied on the unpublished (non-precedential) decision of Orgler v. Orgler, claiming that the husband was required to produce proof of how the value of his assets were established and provide supporting documentation for same.  The Appellate Division specifically rejected this argument, stating:

In Orgler, the court noted that the “‘easiest device’ to evidence” knowledge of a party’s financial condition “is by annexing to the agreement a list of assets and their approximate values.” Id. at 349 (quoting Marschall v. Marschall, 195 N.J. Super. 16, 33 (Ch. Div. 1984)). The court found the prenuptial agreement unenforceable in part because “the parties appended no schedule of their respective assets to the agreement.” Ibid.

However, in the matter at hand:

  • The wife had the benefit of the husband’s financial statement attached to the agreement;
  • The financial statement identified a list of assets with approximate values, as set forth in Orgler;
  • The wife had independent counsel before signing the prenuptial agreement;
  • Within the agreement, the wife acknowledged that she read and understood the agreement and had the necessary time to discuss same with counsel.
  • The wife, nor her attorney, ever asked for additional financial information before the agreement was finalized.

The lesson here is similar to many of our prenuptial agreement cases and the guiding statute, above – always, always, always be sure to affix the financial statement of each party to the prenuptial agreement, ensure that each party has independent counsel and, here, we learn the importance of including language within the agreement acknowledging that each party had sufficient time to review the agreement and financial disclosure with respective counsel prior to signing the agreement.  When dealing with a prenup, you want to be extra careful to follow these directives because you have to assume that at some point in the future, one party will be unhappy with the agreement at the time of divorce, or death.  To protect yourself against what may be the inevitable, you need to make sure that the agreement can withstand efforts to invalidate the document.


Lindsay A. Heller is a partner in the firm’s Family Law practice, based in its Morristown, NJ office. You can reach Lindsay at 973.548.3318 or lheller@foxrothschild.com.

Lindsay A. Heller, Associate, Fox Rothschild LLP

In Z.A. v. R.V., Jr., an unpublished Appellate Division case, meaning not precedential, the Appellate Division ruled that the best interests of the child governs a surname change. This rationale falls squarely with the court’s previous cases that a child’s name change must be evaluated under the best interest standard. Emma v. Evans, 215 N.J. 197 (2013); Gubernat v. Deremer, 140 N.J. 120 (1995). You can read our prior blog post on Emma here: https://njfamilylaw.foxrothschild.com/?s=emma+v.+evans. What we can gather is litigation over a child’s name or surname continues to be a contested issue. The analysis is fact-sensitive and will vary from case to case. In this case, the mother was permitted to change her son’s last name to be hyphenated with both hers and the father’s last names.

Defendant-father appeals the trial court’s decision to change the parties’ son surname. Plaintiff-mother made an application to change the parties’ son surname from Defendant’s surname to the hyphenated surnames of both Plaintiff and Defendant.

Plaintiff and Defendant were not married, but were in a dating relationship since February 2012. Plaintiff became a foster parent to a four-day old boy in April 2012 and lived solely with Plaintiff until November 2012, when Defendant moved in with Plaintiff. When the parties’ adoption was finalized in December 2014 and they agreed that their son would take Defendant’s surname.

In September 2017, the parties separated. At this time, Plaintiff wished for the parties’ son to the hyphenated surnames of both her and Defendant, which Defendant opposed. The parties proceeded to a name change hearing after entering into an agreement regarding custody, parenting time, and child support. After conducting the hearing, the trial court granted Plaintiff’s application for the child’s name changed. Defendant requested a stay of the ruling pending appeal.

On appeal, Defendant argued that the trial court failed to apply the factors as set forth in Emma 215 N.J. 197 (2013) and the trial court abused its discretion by “focusing on whether the proposed name change would be contrary to the child’s best interests.” Z.A., at *3 Specifically, Defendant argued that the trial court impermissibly considered in factor three (3) consideration of Plaintiff’s potential anxiety, embarrassment or discomfort as opposed to a “child-centric” analysis. Z.A. at *6.

When a party makes a name change application, the burden is on the moving party to show by a preponderance of the evidence that the name change is in the best interest of the child. Emma, 215 N.J. at 222. The court in Emma listed several factors that bear on whether the name change is in the child’s best interests, some of which were originally articulated by Gubernat v. Deremer, 140 N.J. 120, 141-42 (1995):

  1. The length of time the child has used his or her given surname.
  2. Identification of the child with a particular family unit.
  3. Potential anxiety, embarrassment, or discomfort that may result from having a different surname from that of the custodial parent.
  4. The child’s preference if the child is mature enough to express a preference.
  5. Parental misconduct or neglect, such as failure to provide support or maintain contact with the child.
  6. Degree of community respect, or lack thereof, associated with either parental or maternal name.
  7. Improper motivation on the part of the parent seeking the name change.
  8. Whether the mother has changed or intends to change her name upon remarriage.
  9. Whether the child has a strong relationship with any siblings with different names.
  10. Whether the surname has important ties to family heritage or ethnic identity.
  11. The effect of a name change on the relationship between the child and each parent.

Emma, 215 N.J. at 223.

The Appellate Division found the trial court appropriately applied the above factors. As to Defendant’s argument that the trial court considered Plaintiff’s potential anxiety, embarrassment, or discomfort, the trial court only acknowledged that this factor could apply to parents. However, the trial court emphasized the need to focus on the child’s best interest and further found that Plaintiff’s testimony as to her potential anxiety, embarrassment, or discomfort not compelling. The trial court found the hyphenated name would promote “important ties to family heritage or ethnic heritage” to both sides of the child’s family. Therefore, the Appellate Division affirmed the granting of the name change application.

The primary focus of a name change application is what is in the best interests of the child. While all factors do not need to be present, a trial court still must consider all the factors and determine which are applicable to the facts of the case.

 


Sofia M. Ucles, Associate, Fox Rothschild LLP   Sofia M. Ucles is an attorney in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Sofia at (973) 548.3349 or SUcles@foxrothschild.com