Credibility is key when it comes to matrimonial litigation – from your initial filing through the last day of trial. In our practice, we can often make educated guesses of the range for equitable distribution and alimony from the initial consultation based upon the many statutory factors that a court has to consider and some rules of thumb in settlement negotiations. However, there are those cases that do not result in such a typical manner and the reasoning often comes down to presentation.

For a trial that I conducted in February 2016, the Appellate Division recently upheld the court’s decision awarding the plaintiff/wife 100% of the equity in one of the parties’ businesses with a value of $133,000 (where she primarily worked) and 40% of defendant/husband’s $214,000 interest in the other business (where he primarily worked), as well as determining that each party retain his/her individual retirement accounts following a long-term marriage of over 30 years.  Wife’s retirement accounts exceeded those which husband disclosed – being the key word. In addition to this equitable distribution award, the Appellate Division upheld the trial court’s 40% counsel and expert fee award for the wife, totaling $31,388.10.

Why did the wife prevail in this way? It’s pretty simple based upon a reading of the decision – her husband just could not help himself as a litigant or a witness.

As a litigant, he “stonewalled” discovery, failed to pay the support obligation order during the pre-trial phase of the litigation (a.k.a pendente lite support) that was initially agreed upon, and failed to file a complete Case Information Statement (the bible in family law cases that lists income, budget, assets and debts).

As a witness, he would not even give a straight answer for his address. While he may have thought he was being cute when he responded that the wife could have the value one of the companies, and do “whatever she wants to do with it”, the trial court and the Appellate Division used the husband’s own words against him to find that he abdicated any interest in the company.

The husband’s lack of credibility resulted in a unique comment of the Appellate Division when it stated that the trial court’s counsel fee opinion was upheld even though the trial court did not specify the factors considered under the applicable Court Rule, R. 5:3-5(c). The Appellate Division opined that “…the discussion throughout the opinion made clear he had those factors very factors in mind”. The Appellate Division again cited to the husband’s bad faith (without utilizing the term) by citing to the trial court’s findings that the requested fees were “’fair and reasonable’ and that much work was required due to the ‘recalcitrance of [the husband]’”, as well as that the wife “faced substantial difficulties” to enforce court orders and agreements, and ultimately prepare for trial.

So, what’s the takeaway? What you say and how you act at each stage of the case is important… someone is always watching and, oftentimes, that someone is your spouse’s attorney who will jump at the opportunity to show the court how you have oppressed your spouse. Having handled this trial and appeal, I can confirm that cross examining the husband and finally having the opportunity to point out all of the misbehavior was fun, but not for him. You don’t want to end up in that seat! Mind your manners even in the heat of the moment and, as painstaking as it may be, always remember that it’s better to be the “bigger person” – the games will catch up to the other!


Lindsay A. Heller, Associate, Fox Rothschild LLPLindsay A. Heller is an associate 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.

Remanding a 2017 trial court decision in a renowned same-sex custody matter, the New York Supreme Court, Appellate Division, held yesterday in the Matter of K.G. v. C.H., that while a non-biological, non-adoptive party to an adopted child did not have standing as a “parent” under New York Domestic Relations Law Sec. 70 to pursue custody and visitation based solely on a preadoption agreement reached during the parties’ relationship to adopt and raise a child together, the trial record was incomplete as to whether such standing could be achieved based on an equitable estoppel theory.

A brief history of the extensive fact-pattern is worth noting here, since the Appellate Division’s affirmance of the trial court’s conclusion that K.G. lacked standing as a parent based on the preadoption agreement was essentially limited to the facts of this case.

The parties were in a romantic relationship that concluded in December, 2009.  In 2007, they agreed to internationally adopt and raise a child together.  The parties’ planned for C.H. to complete the adoption, the child would arrive in the United States, and K.G. would second adopt the child to become a legal parent.

  • When the parties’ relationship ended, no child for adoption had yet been identified by the adoption agency.  C.H. argued that when the parties’ relationship ended, so too did the preadoption agreement.  K.G. disagreed and argued that the agreement, once made, conferred standing upon her as a parent to file a petition for custody and visitation.
  • Extensive testimony was taken at trial regarding the nature of the agreement, the parties’ relationship, and the parties’ respective intentions regarding whether such agreement survived the relationship’s conclusion in 2009.
  • In March, 2011, the adoption agency identified and offered a child to C.H. for adoption.  C.H. adopted the child and K.G., despite the relationship’s demise, developed a loving and affectionate relationship with the child.

Based on the above general facts and underlying details developed at trial, the trial court held that the “parties’ mutual intention to raise an adopted child together did not survive the end of their romantic relationship.”  As a result, the trial court, as affirmed by the Appellate Division, rejected K.G.’s argument that the mere creation of the preadoption agreement conveyed standing upon K.G. to seek custody and visitation with the child.  In so affirming, the Appellate Division noted that the trial court’s decision did not mean that – in every case – the mere end of a romantic relationship does not, in and of itself, terminate the plan to adopt and raise a child together.  Rather, said plan terminated under the specific facts and circumstances at issue.

The Appellate Division also held that the trial court’s ruling on this component of its decision was consistent with the 2016 Court of Appeals seminal decision in Matter of Brooke, which expansively defined who is a “parent” under New York’s Domestic Relations Law to include non-biological, non-adoptive parents and, as a result, who has standing to seek custody and visitation of a child.  The Appellate Court provided:

Contrary to K.G.’s arguments, this legal analysis does not eviscerate Brooke.  If the parties have a plan in place when a particular child is identified, then they become parents under Domestic Relations Law Sec. 70 at that time, with standing thereafter to seek custody/visitation in the event of a change in the household.

As noted above, however, the Appellate Court remanded so that the trial court could more fully develop the record and consider K.G.’s position that she has standing as a “parent” under an equitable estoppel theory designed to ensure fulfillment of the child’s best interests  stemming from a recognized parent-child relationship.  Specifically, “under Domestic Relations Law Sec. 70, equitable estoppel concerns whether a child has a bonded and de facto parental relationship with a non-biological, non-adoptive adult” with the emphasis placed on the child’s point of view.  the key is whether the relationship between the subject adult and child “rises to the level of parenthood.”

As a result of the incomplete record, the Appellate Court could not rule on what factors a court should consider to establish “parent” status under the estoppel concept.  In so holding, the Court found that C.H. had a right to be heard in opposition to the estoppel theory, and the child’s voice was not heard (K.G.’s requests during the trial court matter for the appointment of an attorney for the child, a forensic evaluation and/or a Lincoln hearing where the child undergoes questioning by the judge in private).

Developments in this newsworthy case will continue to unfold as the trial court conducts further proceedings in a manner consistent with the Appellate Court’s ruling.

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Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey and Manhattan.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

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Although the typical matrimonial practitioner may not undertake Division of Child Protection and Permanency (“Division”) on a regular basis, we oftentimes face situations wherein a trial court, in a related matrimonial proceedings, determines Division investigations to be relevant to determinations of custody and parenting time before it. The recent case of DCP&P v. R.R., — N.J. Super. — (Mar. 19, 2018)(slip. Op. at 13), is an interesting new opinion that offers some guidance as to whether these types of investigations may be rendered reliable and when they may be challenged.

There, the subject father appealed from a finding of the Division following an investigation initiated at the request of a Family Part judge in a related matrimonial proceeding, that allegations he abused or neglected his daughter, E.R., were “not established.” In assessing whether to accord deference to such finding, the Appellate Division noted several omissions in the Division’s screening summary, including that the court’s concerns were inaccurately conveyed to the Division; the screening summary inaccurately identified the child involved; and, inaccurate details were recorded.

The Appellate Division ultimately concluded that the Division’s finding was “arbitrary and unreasonable, because the Division failed to consider essential documents and relevant facts,” including failing to obtain and review submissions in the matrimonial matter; or,  any testimony presented at the hearing on the return date. In so finding, the Court stated:

Although the record does not include these documents, it was incumbent upon the Division in this case to consider them as part of a reliable investigation…We recognize that the Division’s regulation governing “requirements for an investigation,” N.J.A.C. 3A:10-3.1, does not require review of relevant court documents. See also N.J.A.C. 3A:10-2.4 (evidence needed to support a finding). However, we cannot have confidence in an investigation – nor are we obliged to defer to the resulting finding – where the Division overlooked such relevant information under the circumstances of this case. Cf. In re Proposed Quest Acad. Charter Sch. of Montclair Founders Grp., 216 N.J. 370, 386 (2013) (“failure to consider all evidence in a record would perforce lead to arbitrary decision making” and a “decision based on a complete misperception of the facts . . . would render the agency’s conclusion unreasonable”); see also Bailey v. Bd. of Review, 339 N.J. Super. 29, 33 (App. Div. 2001) (stating that an appellate court’s deference to an agency decision “is premised on our confidence that there has been a careful consideration of the facts in issue”).

Where to use this type of case: If a trial court determines a Division investigation to be of import to its underlying findings as to custody and parenting time without examining the quality of the investigation done, particularly where the Division’s finding lacks fair support in the investigatory record that the Division compiled.

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Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.

In 2015, I wrote a post on this blog with the same title because seemingly, this issue has been resolved for some time.  All too often, parties would agree to mediate their disputes but would try to reserve a right to appeal, as of right, to the Appellate Division, as if the matter was tried by the family court.  Since the Hogoboom case in 2007, lawyers have should have known that this was a no-no.  In fact, in Hogoboom, the Appellate Division specifically held that:

“…Basically, arbitration awards may be vacated only for fraud, corruption, or similar wrongdoing on the part of the arbitrators. [They] can be corrected or modified only for very specifically defined mistakes as set forth in [N.J.S.A. 2A:24-9]. If the arbitrators decide a matter not even submitted to them, that matter can be excluded from the award. For those who think the parties are entitled to a greater share of justice, and that such justice exists only in the care of the court, I would hold that the parties are free to expand the scope of judicial review by providing for such expansion in their contract; that they may, for example, specifically provide that the arbitrators shall render their decision only in conformance with New Jersey law, and that such awards may be reversed either for mere errors of New Jersey law, substantial errors, or gross errors of New Jersey law and define therein what they mean by that.” … Here, the parties afforded themselves an expanded scope of review, as they were, by contract and by statute, permitted to do. The parties were not, however, entitled to create an avenue of direct appeal to this court. .. It is settled that consent of the parties does not create appellate jurisdiction.  … In our judgment, the parties must seek initial review of these awards in the trial court. The trial court is charged with employing the standard of review the parties contractually agreed upon in determining whether these awards, or either of them, should be vacated or modified. …

That seems clear enough, yet today, there was a reported (precedential) decision in Curran v. Curran that addressed this issue again.  In Curran, the parties agreed to arbitrate and entered into arbitration agreement which contained the very limited right to vacate an arbitration award per the New Jersey Arbitration Act.  However, the wife’s attorney wrote in the following sentence, “The parties reserve their rights to appeal the arbitrator’s award to the appellate division as if the matter was determined by the trial court.”  I guess they forgot about Hogoboom. If that was not bad enough, the parties signed the arbitrator’s retainer acknowledging that they were bound by the decision, except for the limited reasons under the act, and further, that they gave up their right of appeal.

After the arbitration, the husband filed a motion in court to vacate the award.  In refusing to vacate the award, the trial judge found the hand written addition preserving the right to appeal was unenforceable stating:

… that there was no provision under the Act to permit a direct appeal from an arbitrator’s decision to the Appellate Division. In addressing paragraph 3A, the judge stated: “The parties are not permitted to create subject matter jurisdiction by agreement which I think they tried to do here. The authority of a court to hear and determine certain classes of cases rests solely with the Constitution and the Legislature.” He concluded that paragraph 3A was unenforceable.

The trial judge did give a greater analysis of the matter than just permitted under the Act finding that that is what the parties had bargained for, and acted as “an Appellate Division of the arbitrator”  The Husband appealed asserting for the first time that the hand written addition preserving the right to appeal was illegal and voided the entire arbitration agreement and subsequent proceedings.

The Appellate Division disagreed and held that the unenforceable provision could be severed from the agreement.  The court held:

The primary purpose of the agreement was the resolution of the issues incident to the parties’ divorce through binding arbitration pursuant to the Act. This is evident from the contractual language stating: “The Parties having determined

that such issues be referred to binding Arbitration pursuant to the New Jersey Arbitration Act, N.J.S.A. 2A:23B-1 et. seq. . . . The parties shall attend binding Arbitration pursuant to the New Jersey Arbitration Act, N.J.S.A. 2A:23B-1 et. seq.” The parties attached an inclusive list to the agreement of all of the issues they intended the arbitrator to consider and resolve. The purpose of the agreement was for a final resolution of those issues. The arbitration agreement noted in multiple provisions that it was binding and not appealable, other than the limited grounds specified under the Act to modify or vacate an award.

Paragraph 3A did not defeat the parties’ intent to have their matrimonial litigation determined and considered by an arbitrator in an expeditious and comprehensive manner. After reviewing the parties’ submissions, the arbitrator rendered a preliminary award. Oral argument was heard on Robert’s application for reconsideration of the award. The arbitrator subsequently issued comprehensive findings of fact and conclusions of law, and a detailed final award. …

Severance of paragraph 3A does not defeat the primary purpose of the agreement. To the contrary, a revocation of the final award would only serve to frustrate the parties’ intent of reaching a final resolution to their matrimonial litigation and defeat the purpose of the arbitration agreement. The agreement is valid and enforceable.

As I noted in 2015, you can arbitrate and preserve a right of appeal.  Just like you can agree to arbitrate the initial determination of the issues, you can also agree to an appellate arbitration, as well.  I have had matters where our initial arbitration agreement called for the use of a panel of two retired appellate division judges (didn’t have to be – could have been anyone we agreed to be the appellate arbitrators), who would then decide the matter as if they were sitting as a regular appellate panel.  While in that case, you essentially lose the chance to appeal to the Supreme Court, you still have a body to review the matter if you think that the arbitrator got it wrong in the first case. The take away, however, is that your arbitration agreement must clearly spell out the scope of review and who will review the matter – taking into consideration what the court system can and cannot do with regard to an arbitration award.

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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.

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