Is it a court’s job to be “fair” or to get it right? If you file a clear enforcement motion, should a court grant part of the other side’s knee jerk, bogus cross motion, just to give everyone a little something? When deciding a temporary support amount, should the number be the right number, as opposed to one that will cause a problem for the judge because it will make a case harder to settle because the support is too much or too little – but not really if the circumstances really warrant it? In a perfect world, the court is supposed to get it right, whether each party perceives the result to be fair or not.
Another common theme in divorce cases is the question as to whether a court can restrain a parent from exposing the children to a new significant other. The law is reasonably clear that while it may be possible before the judgment of divorce (though that notion and the case law are both old and oftened not enforced these days), after the divorce, it is much more difficult to get restraints.
These two concepts collided in the case of Krenicki v. Krenicki, an unreported (non-precedential) decision released today. This case came to the court as a result of certain post-judgment support issues which were interesting (and wrongly decided thus reversed), in an of themselves. While awaiting a plenary hearing on those issues, the former husband filed an order to show cause requesting that his ex-wife cease cohabitating with her purported boyfriend, certifying that he had retained a private investigator who subsequently discovered that the boyfriend had been charged with, and served jail sentences for, several drug-related offenses. The ex-wife provided a certification from the boyfriend stating that while he had problems in the past, he was rehabilitated. On the return date, the ex-husband sought permanent restraints since the boyfriend’s record reflected five drug-related arrests and seven driving while intoxicated charges, two of which occurred after his purported rehabilitation.
I think we all can agree that it seems pretty clear that this is one of those rare occasions where post-divorce restraints seem appropriate. The judge did just that, restraining the boyfriend from driving the children or being alone with them. One could argue that greater restraints could have been imposed.
That said, the judge went a step further and asked if he was still seeing his girlfriend. When he answered in the affirmative, the judge placed identical restraints on the girlfriend, though there was no suggestion that she had any issues. In what appears to be frustration with one of both of the parties, the judge said:
I’m going to be fair. She’s not going to drive the children either, and she’s not going to be alone with them because I’m going to be fair to both of you. You want to micro manage, I’m going to micro manage.
She [sic] will not drive the children, either. What’s fair is fair. I don’t have any information on her. I didn’t order a report on her, but I’m concerned for these children so I have to be even-handed and fair.
Huh? Restraints granted without any facts, much less fact finding? Apparently the Appellate Division felt the same way as me because they reversed the restraints on the girlfriend, holding:
Here, the motion judge acknowledged that she possessed no information about S.S., but nevertheless ordered the restraints to appear “even-handed and fair.” While we recognize that “[t]here are obviously few judicial tasks which involve the application of greater sensitivity, delicacy and discretion than the adjudication of child custody disputes,” Fehnel v. Fehnel, 186 N.J. Super. 209, 215 (App. Div. 1982), the judge’s order was unsupported by
competent evidence and must be reversed. Cesare, supra, 154 N.J. at 412.
Whether the decision was rendered out of frustration or “fairness”, it was just wrong. In fact, what was purportedly meant to be “fair” was not fair at all. Identical restraints were placed upon a person with a significant substance abuse and criminal history and a person, who for all the court knew, had no history at all. That is not fair; that is not justice. And the husband can’t recover fees from the court, and unlikely from his ex-wife, for this serving of “fairness” that he got.
Eric 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 Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or firstname.lastname@example.org.