Arbitration – essentially, a private trial in which the parties hire a fact-finder who serves in lieu of a judge – has become an increasingly common means of resolving family law disputes.  Although an arbitration may be conducted with all the formalities of a trial, usually parties can agree to dispense with certain formalities, some of which can be costly for the parties.  Arbitration takes a trial out of the sometimes messy court system, usually guarantees a decision will be made in a timely manner, and ensures that the trial does not become a matter of public record.  In family law matters where the issues can be sensitive and the testimony potentially embarrassing to the parties, this may be preferred by the parties.

Another advantage to arbitration is that the litigants are not beholden to the deadlines of the Court system.  They can move on with their lives and even get divorced, while agreeing to defer certain issues to arbitration on a more relaxed timelines.  But sometimes this can backfire.

In a recent unpublished (non-precedential) decision, Shah v. Shah, the Appellate Division addressed the question:  “What happens to an agreement to arbitrate when nobody arbitrates?”

The answer given by the Appellate Division is an interesting one, especially in light of the facts of the Shah case.  In a nutshell, here they are:

  • The Shahs entered into an agreement resolving at least some of their issues in January 2003.  As to those issues that were not resolved (and there were a whopping seventeen of them), they agreed that they would proceed to arbitration.  They agreed on an arbitrator, paid his retainer, and set a date for arbitration.  However, the arbitration did not go forward and after several years passed, Arbitrator # 1 returned the retainer.
  • In 2008, the parties mutually agreed upon a new arbitrator, Arbitrator # 2.  However, neither of them took any steps to retain him.
  • In 2009, Mr. Shah filed a motion to compel the arbitration, expand the scope of the arbitration beyond the seventeen issues identified in the parties’ agreement, and appoint a new arbitrator.  The Court granted Mr. Shah’s motion and appointed Arbitrator # 3.  The Court also entered a discovery schedule, and entered an order directing the parties as to the manner in which Arbitrator # 3’s retainer would be paid.  Despite Mrs. Shah’s apparent attempts to move forward with Arbitrator # 3, Mr. Shah did nothing.  Eventually, Arbitrator # 3 wrote to the Court to, understandably, advise that he would not arbitrate until his retainer agreement was signed.  Neither party signed it.
  • In 2015 (now twelve years after the parties agreed to arbitrate), Mr. Shah once again asked the Court to compel the arbitration, this time asking that Arbitrator # 2 be appointed.  Mrs. Shah cross-moved.  Among other things, she asked the Court to terminate the parties’ obligation to arbitrate.  The Court granted Mrs. Shah’s request, reasoning that – twelve years later – the parties were in very different financial circumstances and could not be made to arbitrate at this point.  The Court also opined that the parties had waived their rights to arbitrate.
  • Mr. Shah moved for reconsideration of the Court’s Order, which the Court denied.

That brings us to Mr. Shah’s appeal.  In pertinent part, Mr. Shah argued that the decision of the lower court should be reversed because the judge incorrectly concluded that the parties had waived their rights to arbitrate due, essentially, to the passage of time.

The Appellate Division agreed with the judge below and concluded that the parties had waived their rights to arbitrate.  This is an interesting conclusion in light of the definition of a waiver:

Waiver is the voluntary and intentional relinquishment of a known right. The intent to waive need not be stated expressly, provided the circumstances clearly show that the party knew of the right and then abandoned it, either by design or indifference. [internal citations omitted].

Indeed, under the facts of the Shah case, there was no question that the parties had unduly delayed in proceeding to arbitration.  Mr. Shah apparently admitted to the Court that he was unhappy with Arbitrator # 3’s fee and therefore did nothing to move forward with the court-appointed arbitrator he had asked for in the first place.

At the same time, there were efforts over the years to move forward with the arbitration.  The major consideration the Appellate Division seems to have made was the amount of time that had passed, regardless of the fact that the parties had – at various points over that time period – made efforts to move forward with the arbitration.  One can imagine that this could be a closer call under even a slightly different set of facts.  For example, what if the facts were identical, but had occurred over the course of five years instead of twelve?

What is clear is that at some point, if parties do not arbitrate then the right to do so is waived, even if the parties have an agreement in place to proceed to arbitration, and one of them wants to enforce it.


headshot_diamond_jessicaJessica C. Diamond is an associate 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.

Sometimes, the location of a case – for one reason or another – can be just as important as anything else.  Perhaps the law is different and more beneficial to one side in a particular location; possibly, one place is simply more convenient for purposes of introducing evidence at a trial or merely having all parties be present in court.

In my practice, I have seen this issue come up more and more.  With our increasing mobility, the questions of where a case should be conducted and what court has jurisdiction has become increasingly complex.  This is especially so in cases involving children who reside with the primary parent in another state from the other parent.  Often, this can result in a tug of war between the courts in both states over where post-judgment issues related to the children should be addressed.

One recent case out of the trial court in Essex County squarely addressed this issue.  In B.G. v. L.H., the parties were divorced in New Jersey, but had specifically agreed when they divorced that the mother and children could relocate to Massachusetts, which they did.  The agreement also called for a parenting time schedule which afforded the father parenting time in Massachusetts and in New Jersey, which he exercised.  Significantly, the agreement did address the question of jurisdiction quite clearly, stating:

Each of the parties hereby irrevocably consents and submits to the jurisdiction of the courts of the State of New Jersey for any future custody and parenting time disputes, so long as one parent resides in New Jersey.

After the wife and children relocated to Massachusetts, the husband continued to reside in New Jersey and, as noted above, to exercise parenting time with the children in New Jersey. Eventually, issues arose regarding the children and their time with their father.  This included two complaints to the Massachusetts Department of Children and Family by one child’s teacher and the other child’s doctor.  The Massachusetts DCF conducted an investigation and concluded that the allegations were unsubstantiated.  However, this prompted the Mother to institute proceedings regarding custody and parenting time in the Probate and Family Court for the Commonwealth of Massachusetts.

And so the basic question arose:  Should the custody and parenting time issues that arose be decided by a Massachusetts Court, or a New Jersey Court?  In this particular case, the answer may seem obvious.  The parties agreed, “irrevocably,” that as long as either of them resided in New Jersey, the courts of the State of New Jersey would have jurisdiction over custody and parenting time disputes.  It was not disputed that the Father continued to reside in New Jersey.  Therefore, based on their agreement, it would seem that New Jersey should continue to have jurisdiction over custody and parenting time issues.

However, the trial court judge went further and conducted an analysis of the issue as though there was no provision in the parties’ Matrimonial Settlement Agreement which addressed this issue.  This is because only the Court can determine if it should relinquish jurisdiction, even where an agreement exists (although the existence of an agreement is an important factor the court must consider, as discussed below).  Judge Passamano’s opinion provides a good overview of how the question of jurisdiction over custody and parenting time issues should be addressed under New Jersey’s Uniform Child Custody Jurisdiction and Enforcement Act (NJUCCJEA):

  1.  Did New Jersey acquire continuing, exclusive jurisdiction over child custody issues?
  2. If so, have circumstances changed so as to divest New Jersey of continuing, exclusive jurisdiction?
  3. And, if circumstances have not changed, then is New Jersey no longer a convenient forum to decide these issues, and is the other state the appropriate forum?

Notably, this procedure prevents a party from doing what the Mother in B.G. v. L.H. tried to do – simply filing an application to modify custody/parenting time in another state’s court.  The state court which originally had jurisdiction must conduct this analysis and affirmatively relinquish its jurisdiction.

Part 1:  Continuing and Exclusive Jurisdiction

Generally speaking, a Court acquires continuing and exclusive jurisdiction as to custody issues when it makes an initial custody determination, or when it modifies a custody determination made by another state as authorized by law.  In B.G. v. L.H., the initial custody determination was made in New Jersey, by a New Jersey Court.  Therefore, the Court proceeded to the next question.

Part 2:  Change of Circumstances

According to the NJUCCJEA, circumstances will have changed so as to divest New Jersey of jurisdiction when either of the following occur.

  1.  A NJ court determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with New Jersey and that substantial evidence is no longer available in New Jersey concerning the child’s care, protection, training, and personal relationships; or
  2. A court of NJ or a court of another state determines that neither the child, nor a parent, nor any person acting as a parent presently resides in New Jersey

The question of whether there is a significant connection with the state cannot merely be based on whether one party continues to reside in NJ.  Instead, it goes to the relationship between the child and the parent that remains in NJ.  This is where the distinction between what the parties in B.G. v. L.H. contracted for and what the law dictates lies.  The agreement between the parties called merely for the continued residency of one parent in New Jersey, but absent an agreement, the Court must look deeper at the relationship between the parent and the child.  The judge in B.G. v. L.H. opined that, since the children in that case exercised parenting time with the Father in NJ, there existed the requisite significant connection in any event.

Part 3:  Which is the Convenient Forum?

Having decided in favor of New Jersey on the first to issues, a New Jersey Court can still determine that it should relinquish jurisdiction if it finds that it is not a convenient forum, AND that the other state is the appropriate forum.  Pursuant to N.J.S.A. 2A:34-71(b), the factors that the Court considers in answering this question are:

  1. Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
  2. The length of time the child has resided outside of the State;
  3. The distance between the court in this State and the court in the state that would assume jurisdiction;
  4. The relative financial circumstances of the parties;
  5. Any agreement of the parties as to which state should assume jurisdiction;
  6. The nature and location of the evidence required to resolve the pending litigation, including the testimony of the child;
  7. The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
  8. The familiarity of the court of each state with the facts and issues of the pending litigation.

Again, in B.G. v. L.H., Factor 5 makes it impossible to ignore the fact that the parties explicitly, knowingly, and voluntarily, entered into an agreement that New Jersey would continue to have jurisdiction over custody and parenting time disputes so long as either of the parents (obviously, the Father in this case) merely resided in New Jersey.  Although the Court must give some due consideration to the other factors, so long as the best interests of the children – which must always be paramount – are not deleteriously affected by jurisdiction remaining in New Jersey, it would be hard to argue that there should be any other result in the face of such clear cut language in the agreement.

Practice Issues

The B.G. v. L.H. case provides a good lesson to practitioners about the importance of addressing this issue in agreements, especially if one parent’s relocation to another state may be on the horizon.  If you are on the side of the potentially relocating custodial parent, know that a provision like the one the parties entered into in this case may make it more difficult for your client in the event he or she wants New Jersey to relinquish jurisdiction.  By the same token, if you represent a party who may eventually be defending against an attempt to remove jurisdiction to another state, language like that included in the agreement in B.G. v. L.H. will be helpful to your client.


headshot_diamond_jessicaJessica C. Diamond is an associate 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.

Ah, technology.  In this modern world, we navigate the roads on our phones instead of a map.  We talk to a cylindrical tube to tell it to order more toilet paper for us, tell us the weather, read us the news, or turn on the lights.  We don’t remember anyone’s phone number because they are all stored for us on our phones.  And we obtain personal jurisdiction over an out-of-state defendant via Facebook.

2969559163_00f2a6f6d4_m

 

The legal world is, perhaps, notorious for its luddite tendencies.  One need only step into any lawyer’s office to see reams of paper everywhere – stacked on the floor (okay maybe that’s just me), piled on the desk, packed into boxes.  But in terms of the use of social media as a mechanism for exercising “long-arm” jurisdiction over a defendant, the law appears to be catching up with modern means of communication as more and more jurisdictions are allowing the use of Facebook and other social media platforms to serve as a form of substituted service.

Personal Jurisdiction = Sufficient Minimum Contacts + Service of Process

For those who didn’t take Civil Procedure, it is important to understand that there are rules (a lot of them!) about who is subject to the jurisdiction of a particular Court.  Every state in the country has the ability to exercise “long-arm” jurisdiction over parties who do not reside within it, but only if certain rules are followed and conditions met.

In order for a New Jersey court to exercise jurisdiction over a person who does not live in this state, that person must have sufficient minimum contacts (a phrase drilled into every first-year law student’s head for all of time) with New Jersey, and must also be properly served with process.  Broadly speaking, the “minimum contacts” test is satisfied if the individual could or should reasonably expect to be brought into court in the state.

Importantly, there are limits on what types of actions a court can exercise its jurisdiction over, and these are based upon the type and scope of the minimum contacts the out-of-state defendant has with the state.  For example, if a PA resident has a car accident in NJ, and the nexus of personal jurisdiction is that the PA resident drove into NJ where the accident occurred, then a New Jersey Court would have jurisdiction over any legal claims arising out of the car accident.  But, if someone wanted to sue the PA resident for some other reason in NJ, there would have to be some other finding of minimum contact related to that cause of action here in NJ.

There also has to be service of process.  The purpose of this requirement is two-fold.  First, service must be reasonably calculated to apprise the party of the pending legal action.  Second, it must allow the party an adequate opportunity to respond.  Simply speaking, under our Court Rules, personal service (i.e. actually delivering the process to the person or a representative) is the preferred form of service.  Under certain conditions, service can also be made by mail.  But then, there is a third option.  If service cannot be made personally or by mail, then it can be made “as provided by a court order, consistent with due process of law.”  In other words, the Court can determine an alternate method of service, so long as this method accomplishes the dual purposes of service of process: the manner of service must be reasonably calculated to let the party know about the pending legal action and the claims against him/her, and must allow the defendant the opportunity to respond.

Recent Court Ruling Approves Service of Process Via Facebook

In a recent published (precedential) decision, K.A. and K.I.A. v. J.L, a New Jersey trial court found that – under the circumstances – service by Facebook would be sufficient to confer personal jurisdiction over the defendant.  In that case, K.A. and K.I.A. were adoptive parents of their son, referred to as “Z.A.”  Z.A.’s biological father had contacted not only Z.A. but also K.A. and other family members (all of whom were NJ residents) on Facebook and had disclosed to Z.A. on Instagram that Z.A. was adopted and told him the identity of his birth mother and the location of his birth.  J.L. also obtained photographs of Z.A. from K.A.’s Facebook page and published them on his own page, holding Z.A. out as his son.  The plaintiff’s commenced an action to enjoin J.L. from holding Z.A. out as his son, to enjoin him from contacting them and Z.A., and to compel J.L. to remove information pertaining to Z.A. that he allegedly published online.

The plaintiff’s attorney sent cease and desist letters to both of the defendant’s last known addresses, which were in Pennsylvania, by certified and regular mail.  Under the Court Rules, this is an acceptable method of service so long as the regular mail is not returned to the sender, and so long as an answer or response is made by the defendant.  In this case, both of the certified mailings were unclaimed and, although the regular mail was not returned, no answer was made by the defendant.

Because the defendant, based upon the conduct forming the basis of the claims against him, was evidently an active Facebook user, the plaintiffs sought permission from the Court to effect substituted service by use of Facebook.

Judge Hansbury found that under the circumstances, such service would meet the requirements to confer personal jurisdiction over the defendant with regard to the claims against him based on the following:

  • Personal Jurisdiction:  Judge Hansbury relied upon a Third Circuit case, Toys R’ Us, Inc. v. Step Two, S.A., 318 F.3d 446 (3d Cir. 2003), which held that a defendant’s intentional interaction with the forum state via the internet is sufficient to confer jurisdiction.  In the case before the Court, the defendant intentionally reached out to various members of the plaintiffs’ family who are NJ residents, using his social media accounts.  Any harm arising from these intentional contacts would clearly be concentrated in NJ.  Therefore, the Court found that it could exercise personal jurisdiction over the defendant by virtue of his intentional contact with the State via the internet.
  • Scope of Personal Jurisdiction:  Because the defendant’s contacts with the state were precisely those that gave rise to the causes of action the plaintiffs pursued against the defendant, the Court found that the scope of its personal jurisdiction over the defendant included these claims, though it acknowledged it did not have personal jurisdiction over the defendant as to any claims unrelated to the alleged contact with the plaintiffs and their family members.
  • Service:  Under the facts of the case, service of process via Facebook would accomplish the dual purposes of the service of process requirements discussed above.  The Court reasoned that because the defendant solely used his Facebook and Instagram accounts as the “conduits of the purported harm,” service via Facebook was reasonably calculated to apprise the defendant of the pendency of the action and afford him an opportunity to respond.  The Court observed that the plaintiffs had demonstrated that the defendant’s Facebook account was active.  Further, the Court noted that Facebook includes a feature that allows the sender of a message to see whether the recipient has opened and received the message, which would indicate whether the defendant was actually notified of the case.

16306963 - like thumb up sign on white background 3d

Limitations on the Use of Facebook to Confer Personal Jurisdiction

It is important to note that Judge Hansbury’s ruling does not mean that service of process via Facebook is acceptable as a primary method of service or even that it is available in every case.  Central to the ruling here is that personal service could not be affected, nor could service by mail.  Moreover, it was due to the particular facts of this case – specifically, that it was evident the defendant had an active Facebook account and that the Facebook account was the primary means of the harm alleged in the case – that caused the judge to believe it would be an appropriate means of substituted service.  However, given the widespread use of Facebook, the ruling suggests that it can be used in other cases as a means of substituted service and is something to keep in mind in cases where out-of-state defendants cannot be served by traditional methods.


headshot_diamond_jessica

Jessica C. Diamond is an associate 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.

Last year I blogged on tri-parenting, or the concept whereby three parents agree to raise a child or children together as a family, with regard to the published New Jersey trial court decision of D.G. and S.H. v. K.S. My previous blog post can be found here.

In that matter, D.G. and his husband, S.H., along with their friend K.S. embarked on a journey of conceiving and raising a child together. The parties agreed to use D.G.’s sperm and K.S.’s egg, as they had known each other longer, and they would give the child S.H.’s surname. All three parties parented the child and were effectively able to do so for most of the child’s early life, until K.S. announced that she had fallen in love with A.A., who she intended to marry, and that she wanted to relocate with the child to California where A.A. resided. When the parties’ could not agree on a “tri-parenting plan”, D.G. and S.H. filed a Complaint seeking legal and physical custody of the child, parenting time, and that S.H. (who did not have any biological ties to the child), was the child’s legal and psychological parent.

After 19 days of trial, the Court found that S.H. was in fact the child’s psychological parent (although K.S. also stipulated to this on the eve of trial), and concluded that D.G., S.H. and K.S. should have equal legal and residential custody of the child, and the court established a 50/50 parenting time schedule. However, the court denied S.H.’s request for legal parentage as a matter of law on the basis that the court does not have jurisdiction to create a new recognition of legal parentage other than what already exists—genetic contribution, adoption, or gestational primacy. Further, although the best interest of the child standard is used for various family law determinations, it is not a factor in defining parenthood under the Parentage Act. (N.J.S.A. 9:17:38 through 9:17-59).

I concluded my prior post by stating that

With the evolution of today’s family, “tri-parenting” and other, similar custody and parenting time situations will emerge, creating a new, unique set of issues for families who are dissolving/separating. As the role of “parent” expands, it will be interesting to see how the courts will progress to handle these delicate issues.

19754957 - one caucasian family father mother daughter man dispute reproach in silhouette studio isolated on white background

On March 8, 2017, The New York Supreme Court of Suffolk County also granted tri-legal custody and visitation, in the matter Dawn M. v. Michael M.

In that matter, Dawn and Michael, a married couple, began a polyamorous relationship with Dawn’s friend, Audria. All three parties considered themselves a family and decided to have a child together. Since Dawn was unable to have a child, the parties decided that Michael and Audria would try to conceive. The credible evidence presented to the Court established that all three parties agreed, prior to a child being conceived, that they would raise the child together as tri-parents.

Audria became pregnant and gave birth to a boy, J.M.; however shortly thereafter the relationship between the parties became strained and Dawn and Audria moved out together with J.M. Michael commenced a divorce action against Dawn, and asserted he no longer considered Dawn to be J.M.’s parent.

The court found credible the testimony of Audria and Dawn that J.M. was raised with two mothers and that he continues to the present day to call both “mommy.” The court further found that in all respects, during the first eighteen months of J.M.’s life when Dawn, Michael and Audria all lived together, and thereafter after their separation, Dawn acted as a joint mother with Audria and that they all taught the child that he has two mothers. The Court also conducted an in camera interview with J.M., which left no doubt in the Court’s mind that he considered both Dawn and Audria to be equal “mommies” and that he would be devastated if he were not able to see Dawn.

Although not a biological parent or an adoptive parent, Dawn argued that she has been allowed to act as J.M.’s mother by both Audria and Michael, that she has always lived with J.M., J.M. has known her as his mom since his birth and that the best interest of J.M. dictates that she be given shared legal custody and visitation with him. Audria, J.M.’s biological mother, strongly agrees. Dawn further argued, along with the child’s attorney, that Michael should be estopped from opposing this application because he has created and fostered this situation by voluntarily agreeing, before the child was conceived, to raise him with three parents, and that Michael has acted consistent with this agreement by allowing the child to understand that he has two mothers.

The Court found that the best interests of J.M. would be served by granted Dawn shared legal custody, stating that “J.M. needs a continuing relationship with the [Dawn] as his mother and that relationship cannot be left to depend on the consent or whim of either his biological mother or father. Anything less will promote great hardship and suffering for J.M.”, and established a tri-custodial arrangement, as Michael and Audria already shared joint legal custody.”

The Court concluded that Dawn, Michael and Audria

created this unconventional family dynamic by agreeing to have a child together and by raising J.M. with two mothers. The Court therefore finds that J.M.’s best interests cry out for an assurance that he will be allowed a continued relationship with [Dawn]. No one told these three people to create this unique relationship. Nor did anyone tell [Michael] to conceive a child with his wife’s best friend or to raise that child knowing two women as his mother. [Michael]’s assertion that [Dawn] should not have legal visitation with J.M. is unconscionable given J.M.’s bond with [Dawn] and [Michael]’s role in creating this bond. A person simply is responsible for the natural and foreseeable consequences of his or her actions especially when the best interest of a child is involved. Reason and justice dictate that [Michael] should be estopped from arguing that this woman, whom he has fostered and orchestrated to be his child’s mother, be denied legal visitation and custody…To order anything other than joint custody could potentially facilitate [Dawn]’s removal from J.M.’s life and that would have a devastating consequence to this child.”

Although the issue of legal parentage was not discussed in the New York Court opinion, it appears that the New York Court is as progressive as the New Jersey Court in moving  towards alternative custody arrangements in light of the evolution of today’s families.

In a new published (precedential) decision, Ricci v. Ricci, the Appellate Division addressed an adult child’s (an oxymoron, I know) request for her divorced parents to contribute to her college education expenses. Going  back to basics, the Appellate Division reminded us that – before any determination about a divorced parent’s obligation to contribute to college education expenses can be made – a threshold question must be answered, namely: Is the child emancipated?

The Facts

The pertinent facts are as follows:

  • Maura and Michael Ricci divorced when their daughter, Caitlyn, was four (4) years old.  As Caitlyn grew older, she engaged in some less-than-responsible behavior.  This is not in dispute.  Caitlyn graduated from high school in June 2012, at which time it was determined by Caitlyn’s parents that – due to said irresponsible behavior – Caitlyn wasn’t ready to go away to college and live on her own.  Therefore, Maura and Michael agreed that Michael would pay for the summer and fall semesters of community college; Caitlyn attended as a part-time student while continuing to live with her mother.
  • In Winter 2012, Maura and Michael agreed, as a way of testing the waters as to Caitlyn’s readiness to live on her own, that Caitlyn would  participate in the Disney College Program in Florida.  Within a month of starting the program, Caitlyn was expelled for underage alcohol use.
  • This is where the facts get a bit murky.  Maura and Michael say that, after Caitlyn’s expulsion from the Disney College Program, they wanted her to return to community college on a part time basis to complete her associate’s degree and outlined for Caitlyn a program of school, counseling, and work (i.e. a part time job) in order to instill discipline and a sense of responsibility in her.  Caitlyn viewed these expectations as unreasonable and impossible.  What is undisputed is that at this point, Caitlyn moved out of her mother’s home and in with her grandparents.  In Michael and Maura’s views, this move was intended as a rejection of their parenting and their attempts to help Caitlyn.  In Caitlyn’s view, her parents’ unrealistic demands “pushed her beyond the sphere of parental influence.”
  • In March 2013, after Caitlyn moved out, her parents agreed that Caitlyn was emancipated.  They entered into a consent order accordingly.
  • Months later, Caitlyn, still enrolled in community college, filed a motion to intervene in her parents’ divorce matter and sought continued support from her parents; specifically, their contribution to her community college tuition.  In October 2013, the trial court judge granted her application.  Importantly, the judge deemed Caitlyn “un-emancipated [sic] solely for the purpose of a potential contribution from [her parents] as it relates to college costs.”  He ordered that Maura and Mike pay for Caitlyn’s tuition, fees, and costs for the 2013-2014 school year, after application of Caitlyn’s financial aid award.  This amounted to about $2,000, or what the trial judge viewed as a “de minimis” amount.  The judge did not conduct a plenary hearing prior to making its decision that Caitlyn be deemed “un-emancipated” for this specific purpose.  Nor did he conduct a review of the parents’ finances to determine their abilities to pay for Caitlyn’s college expenses.
  • Caitlyn was accepted to Temple University for the Fall 2014 semester.  She applied for financial aid and received it, but had about $18,000 / year in un-met tuition expenses, which she wanted her parents to pay.  Caitlyn filed a motion seeking to enforce the Court’s prior order, arguing that it required her parents to pay her tuition, fees, and book expenses.  Maura and Michael opposed the application, arguing that the October 2013 Order was limited to tuition, fees, and books for the 2013-2014 year and that the Order did not determine their obligations, if any, for college contribution in subsequent years.  In October 2014, the Court granted Caitlyn’s application and “enforced” the prior Order, ordering Maura to cover 40% of the unmet college costs, and Michael to cover the balance.
  • Michael and Maura filed a motion for reconsideration.  They argued that the order was unfounded because Caitlyn had unilaterally moved out of Maura’s home after refusing to even compromise about the plan they had laid out for her to impose discipline; transferred to an expensive out-of-state school without conferring with them; refused to communicate with her parents; and continued to act independently, without regard to their parental input.  In short, they argued, she was emancipated and their obligation to support her ended with her rejection of their parenting.  The Court denied their motion and Mike and Maura appealed from all three (3) trial court orders.

The Legal Framework

Whew, that was a lot of facts!  Now let’s get to the law.  In her opinion, Judge Lihotz walked us through the legal framework to which the Court should adhere in these cases.  First, the Court needs to answer the threshold question of whether the child at issue is emancipated.  Lots more on that below.

Next, if the child is not emancipated, the court must consider whether the child has the aptitude for college.  The seminal Newburgh case does not require deferred emancipation for children reaching the age of majority in every single instance; if a child is unable to perform adequately for his or her academic program, then it may be appropriate to find that the child is emancipated.

Finally, if a child has the aptitude for college, a review of the parents’ finances and determination of their abilities to pay and to afford college must be undertaken so that the Court can determine what a parent may reasonably contribute to a child’s college education expenses.

Highlighting the Threshold Question of Emancipation

In reviewing the trial court decisions below, Judge Lihotz essentially found that the trial judges had put the proverbial cart before the horse by failing to address the threshold question of whether Caitlyn was emancipated or not.

Simply put, the parent-child relationship imbues parents with certain “rights, privileges, duties, and obligations.”  One such duty  is to provide financial support, a form of which is contribution to a child’s college education expenses.    The Court, in exercising its power to protect children, has authority to impose support obligations, but this power is limited and terminates upon a child’s emancipation.

So when is a child emancipated?  Well, Judge Lihotz wrote, this depends upon the nature of the parent-child relationship as much, if not more so, than the age of the child:

The dependent parent-child relationship indicative of unemancipation is not merely shown by a child’s claimed need for financial support.  Our jurisprudence unmistakably mandates there must be examination of the parent-child relationship itself.  In fact, a better description is the relationship is one of interdependence: the child’s right to support and the parents’ obligation to provide payment are inextricably linked to the child’s acceptance and the parents’ measured exercise of guidance and influence.  Conversely, a finding of emancipation is a recognition of a child’s independence from a parental influence. (internal citations omitted).

In this case, Judge Lihotz observed, the two sides of the story could lead to different results.  Caitlyn’s version of the facts was, essentially, that she couldn’t possibly have accepted her parents’ guidance and influence because they were imposing unreasonable, unbearable restrictions and demands upon her; they had forced her outside of their sphere of influence involuntarily, and why should she be penalized for that?  Maura and Michael’s version of the facts, on the other hand, was that they were parenting Caitlyn; she needed their strict guidance due to her wild and irresponsible behavior, but she had outright rejected it and chosen to live independently of them and their influence.  Given the diametrically opposed accounts of what had happened, Judge Lihotz observed, a plenary hearing and a fact-finding should have taken place in order to make a determination as to whether Caitlyn’s version of events rang true such that she should be deemed unemancipated, or whether it was appropriate for her to remain emancipated because her parents’ version of the story was more accurate.

One thing seems to be certain: it was improper for the judge to deem Caitlyn un-emancipated for the limited purpose of assessing college expenses to her parents.  As Heidi Klum might say, you’re either “in” or you’re “out.”

 

Either you are emancipated and not entitled to support from your parents – including payment for college expenses – or you’re not emancipated, and you are entitled to support.

Let’s Try This Again…

Ultimately, Judge Lihotz ordered a remand (legalese for a “do-over”) to the trial court.  First, the trial judge must hold a plenary hearing to determine whether Caitlyn was emancipated after all.  The judge will have to review the record and make an assessment as to whether Caitlyn voluntarily set out on her own path and rejected her parents’ guidance and influence.  If not, and she was not emancipated, then the Court will have to address the secondary questions of whether Caitlyn had the aptitude for her academic program (which, now that Caitlyn is 23 and may or may not have graduated from college by now, should be self-evident), and will have to review the parties’ finances to determine their fair shares of financial responsibility.  But it all boils down to that first question:  was Caitlyn emancipated when she made her initial application?


headshot_diamond_jessicaJessica C. Diamond is an associate 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.

Growing up, my siblings and I all played sports. My brother and I were basketball players and my sister was, in no uncertain terms, a track star. Playing sports was a lifestyle in our family, and no one took it more seriously than my father himself, a former basketball player and my toughest coach. My dad was not only an extremely skillful basketball player, but he was a great teacher and I valued all the time he spent with me in the driveway teaching me how to perfect my shot. I like to think this is why he was always my most vocal fan at my games.

No matter how packed the stands were for a Friday night game (my high school had almost 4,000 students), I could tune out every cheer, scream and shout, that is, except of course, my dad’s. He had his share of one liners, “advice” for the referees and positive feedback, but when I wasn’t playing up to his standards (which rival that of Coach K or Jim Boeheim), I was always able to find him in the sea of parents, with two fingers on the bridge of his nose shaking his head in disappointment or somehow hear his “instructions” as to what I could be doing better, over all the noise.

A few distinct memories are as follows: once, when I was about 12, in the middle of a game, my dad, then toting along my much younger sister, came down from the stands over to the bench to tell me that I was playing “so badly” he was going to wait in the car–if that did not instill fear in you to play better, nothing would. It was going to be a long car ride if I didn’t turn that around! Another time a referee told him to start drinking decaffeinated coffee before coming to tournaments. But my favorite was when I missed a few foul shots in a game (which was the equivalent, or worse than, being expelled from school). My dad drilled into my head from a young age the importance of foul shots, so after the game, I was not allowed to come inside the house until I made 25 foul shots, in a row. I still remember that cold December evening, standing outside in the dark on the chalk-drawn foul line he made, taking shot after shot in the glow of the overhead garage light. Once you learn how to make foul shots without feeling your hands, it becomes second nature.

In any event, everything my dad did (except maybe his “advice” towards the referees), taught me how to be a better basketball player, a better team player, work harder and, subsequently/somehow, positively shaped me into the person I am today. And while he was tough, I never once felt discouraged or embarrassed; instead he motivated me to work harder. After all, by high school, I was our team’s technical foul shooter.

But all too often, parents cross the line from teaching their children to be better athletes to acting inappropriately, disparagingly, and disruptive not only towards their own children, but towards their children’s team and coaches.

65898085 - rear view little league baseball team sitting on bench

In the unpublished (non-precedential) matter of D.W. v. M.W., the mother of a 7-year old child filed a motion seeking to prohibit her ex-husband, the child’s father, from attending their son’s coach-pitched Little League baseball games due to what she alleged, was “inappropriate public criticizing and disparaging of the coach’s baseball-related decisions and abilities in an embarrassing and demeaning manner”. According to the mother, the father routinely made negative and demeaning comments at the baseball field, that their 11-year old daughter then began repeating, that other parents witnessed this inappropriate conduct, and that the father even took his commentary from the baseball field to FaceBook. The child’s father denied these allegations.

After recognizing the cultural importance of Little League baseball, Judge Jones took judicial notice “that the results of particular Little League games are not nearly as significant as the underlying goal of developing a child’s ongoing personal character in a positive fashion. In this respect, there is a paramount importance in maintaining the surrounding environment at the Little League field as one which promotes respect, integrity, responsibility, discipline and self-restraint. Ironically, however, a great challenge in meeting these goals often comes not from the participating children, but from parents. While fathers and mothers come to games and practices for the alleged purpose of supporting their sons and daughters, there are times when overly critical, judgmental and interfering parents invariably end up acting in an objectively inappropriate manner, which can be highly embarrassing and emotionally detrimental for their own children, and others as well.”The “social phenomenon of out-of-control sports parents is often informally referred to as ‘Little League Parent Syndrome”.

41648699 - summerlin, nevada - june 4: a summerlin little league girls game on june 4, 2015, in summerlin, nevada. two players warm up at a summerlin little league game in summerlin in nevada.

But when and where does the Court intervene in this matter? A parent’s inappropriate and disruptive conduct, not only at the ball field but in any public venue, may be directly contrary to the best interests of their child, and in cases before the family court, a child’s best interests, rights and needs are greater than that of either parent.

In the case at bar, Judge Jones made it clear that he could have set the matter down for a costly and elongated plenary hearing, but decided to undertake what he referenced as the “fresh start” approach. The “fresh start” approach does not make any finding as to the credibility or accuracy of either party’s viewpoints, but requires that both parents submit to the same “(a) parameters of parental conduct at the ball field; and (b)… act at all times in a manner which is consistent with the children’s best interests as well as the true purpose of organized youth sports in the first place.”

The parties were also directed to follow all league rules concerning parental conduct and additionally, adhere to the following parameters not only at the site of the games and practices, but also on social media:

1) A parent may not publicly harass or demean his or [her] child or any other child;

2) A parent may not publicly harass or demean any coach or official. If a parent has a particular issue which he or she wishes to communicate with a coach or official, then absent a legitimate emergency, the parent may address the issue with the coach or official, privately, either by letter or by any other method deemed acceptable by league officials, including but not limited to, if reasonably necessary, an in-person meeting, outside the presence of children, and consistent with any existing league rules, with all such communication conducted in a mature, diplomatic, and respectful manner;

3) A parent may not publicly harass or demean any other or any parent or other spectator in the stands; including but not limited to that parent’s separated divorced, or otherwise estranged spouse, or such person’s guest(s). A child’s sporting event is a wholly inappropriate place for any public domestic disputes of any kind;

4) A parent who attends a child’s youth sporting event or practice has an affirmative obligation to act in a manner which upholds the dignity of the event. In particular, a parent may not act in a manner which is directly contrary to the core purposes of the event itself, such as teaching children concepts of maturity, respect, and discipline, and good sportsmanship. A parent who cannot or will not accept these parameters, and who acts in a manner which publicly undermines these core goals and values, may undermine the integrity of the event and the rights of all participating children and other adults in attendance;

5) A parent is to fully comply with all other rules of conduct required by the league or organization in question.

The purpose of the “fresh start” approach is much like the lessons learned from youth sports; there is always a second chance to do better. “With parenting, the reality is that parents who allegedly commit errors or fumbles in raising children, and who end up in court over such incidents, may positively and constructively learn from the entire experience” and make positive changes going forward that are in the best interests of their children. While the “fresh start” approach is contingent upon both parties making positive changes, if they are willing and able undertake this approach, I believe it can be successfully extended to other parenting issues as well. In the right instances, as practitioners, we should be mindful of this approach when dealing with similar parenting issues.

As a matrimonial litigant, you never want to feel that your lawyer does not know how best to take you through the divorce or post-divorce process.  After spending substantial sums of money on an advocate to aid you through a difficult and emotional process, let’s just say that “the blind leading the blind” is not the vibe that you want to be left walking away with.

Unfortunately, however, it happens way too often and I cannot tell you how many times I have had consults with potential clients during which I am told about how disappointed he or she was with prior counsel.  I have had several recent cases where I am left baffled and scratching my head at the inability of a matter to move forward to a trial or settlement – not because of difficult parties or issues of complicated substance, but, rather, a lawyer on the other side who simply does not seem to know what he or she is doing.

The experiences to which I allude are all the more reason to heed the following points when selecting your divorce lawyer:

  • Does the lawyer practice exclusively in the area of matrimonial law? You want a lawyer who knows the law, right?  You also want a lawyer who knows how the law has been applied, how it fits to the facts of your case, and how and when it may be changing.  While no lawyer is going to concede to you that he or she does not know the law, or that acting on your behalf will be a new experience, always do your due diligence before meeting with the attorney to see what you are really dealing with.  Aside from discussing with your referral source, perhaps review the attorney’s online profile to see what articles he or she has written, or what presentations he or she has given on family law topics.
  • Is your lawyer familiar with the judges, lawyers, mediators and experts who may be involved in your matter? This point coincides with the first point.  A lawyer who is well versed in or only practices in the area of family law will more likely be familiar with the people you will come across in the course of your matter.  Knowing how your spouse’s lawyer operates, knowing which mediator may be good or bad for your case, and knowing which expert can best address your financial or custodial needs is of great importance in properly presenting and proceeding in your case.
  • Do you feel comfortable in communicating with your advocate about the law and the facts of your case? You are going to get to know your lawyer very well.  You want to be able to confide in that person all of the good and the bad that may have happened during your marriage, as well as anything that may impact upon your divorce proceeding.  Providing your lawyer with such information and allowing him or her to best address such issues is one of the reasons why you retained that lawyer in the first place.
  • Do you strategize with your lawyer in a way that addresses many different potential approaches while also taking litigation costs into consideration? There are many, many…many different types of divorce lawyers.  There are lawyers who prefer the path of least resistance to get you to a resolution, lawyers who are always aggressive, and so many others in between.  The lawyer you retain should fit your goals and motivations of what you want or believe your divorce matter should be.
  • Is your lawyer responsive to your needs? Responsiveness is one of the issues that I hear about most often from clients who have had prior counsel.  You want to ensure that your attorney gets back to you in a reasonable time to address any issues that you may have.

These are just a few of the critical points that you should consider in retaining matrimonial counsel.  Every lawyer is different, as is every client.  Finding the right match for you is not a decision to be taken lightly, and should be based on a consideration of several factors.  Your attorney is someone who you are going to confide in more than most other people in your life, including, on occasion, your family and friends.  Trust and comfort in your lawyer’s ability to advocate on your behalf is a critical, if not the most critical decision that you may make during the entire divorce process.

_____________________________________________________

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

Connect with Robert: Twitter_64 Linkedin

 

I am not generally one to make resolutions at the New Year.  Most of them would involve eating, and I have a sweet tooth, so I am destined to fail. That being said, I do try to make some improvements to my work life each January and in addition to cleaning my desk, they include giving my clients some resolutions they should think about.

Copyright: underverse / 123RF Stock Photo
Copyright: underverse / 123RF Stock Photo

Number 1.  Don’t be a jerk.  Your dissolution/custody/post-judgment matter has enough difficult substantive issues involved without having to deal with unreasonableness for the sake of making things difficult.  It is so often tempting to lash out at someone who has acted in a childish, mean spirited manner against you.  However, while it might make you feel better for a hot minute, the longer effects of your actions may be that they come back to bite you in the derriere.  In today’s day and age, almost all of our actions are captured in some form of technology, whether it be a post on Instagram, a comment by someone other than you on social media, or a response by the recipient of your actions in an email.  Trust me- a judge will not be amused.

Talk to me first before you act against your ex.  Let’s discuss what was done to you and what is an appropriate response.  Remember, we judge ourselves by our intent, but we judge others by their actions.  This oftentimes necessitates taking the high road.  Let’s make sure we know how you will be judged by others (most notably a judge or expert).

Number 2.  Don’t ask me to be a jerk for you. I am a professional.  And I am courteous.  Add the two together, and I will practice professional courtesy.  Which means I will respond to a fellow attorney in a timely manner; I will pick up the phone, and yes, if I am asked to consent to an adjournment I will do so unless it will hurt my client’s interests. Trust me, I am doing this for you.  Why?  Because the fact of the matter is, you are going to need something later in the case, and chances are if I am a jerk, the other attorney will be a jerk right back at me.  More importantly, if I get a reputation of being a jerk, I am never going to get a break from the judge on your case. When you have a school play scheduled for 3:00 in the afternoon the day of a settlement conference, don’t hand the judge a reason to deny our request to move it.

Number 3. Understand my occasional scheduling issues.  You are important to me.  I promise. And it has nothing to do with the amount of money you have, the complexity of your case, or whether you are male or female.  I strive to do the very best I can for each one of my clients.  However, stuff happens.  It happens to you, and it happens to others.  And when one of my other clients has an emergency, I can only be at one place at one time. I am fortunate to have amazing colleagues who work with me, so it is rare that attention cannot be given to you.  I once was almost fired by a client when I had to reschedule an appointment to review documents when another client had been physically assaulted  by a spouse and I had to rush to the courthouse to get an order of protection.

Number 4 (and more important than number 3).  Understand that I have no power over the Court’s scheduling issues.  Trust me, I am just as frustrated at the fact that we have waited for over a month for an order from the Court.  I do understand that it is having a detrimental effect on you and your children.  However, the fact of the matter is that judges in NJ have approximately 400-450 cases, and there is only so much that can be done in a day or week.   Don’t ask me to call the court every day or write a scathing letter.  Trust me, this is not the way to endear you to the judge.

Number 5. Take a deep breath.  Your case is like a Bell Curve.  You are at the apex and it stinks.  I will help you get to the bottom, but it will not happen immediately.  Your matter will be over, and you will be able to move on with your life.

 

MillnerJennifer_twitterJennifer Weisberg Millner is a partner in Fox Rothschild LLP’s Family Law Practice Group. Jennifer is resident in the firm’s Princeton Office, although she practices throughout the state. Jennifer can be reached at 609-895-6712 or jmillner@foxrothschild.com.

Our partner in our Chester County, Pennsylvania office, Mark Ashton, just wrote an interesting piece on our Pennsylvania Family Law Blog entitled “”Tis the Season”  about how the time between November 1st and the end of the year used to be the quiet time for new matters and how he has found that this year has been different.  We have found that to be the case, as well, as noted below.

image

That said, for many divorce attorneys, the busy season starts after the first of the year. For the last few years, I have posted on the phenomenon of the New Year’s Resolution Divorce. For whatever reason, this post has struck a chord and has been both well received and cited by other bloggers. As such, given that the new year is near, I thought I would share that piece again, updated slightly for the new year.

Over the years, I have noted that the number of new clients spikes a few times of the year, but most significantly right after the new year. Out of curiosity, I typed “New Years Resolution Divorce” into Google and got 540,000 results in .29 seconds. While not all of the search results were on point, many were extremely interesting. It turns out that my intuition about this topic was right and that there are several reasons for it.

One article on Salon.com put divorce up there with weight loss on New Years resolution lists. Also cited in this article was that affairs are often discovered around the holidays. Another article linked above attributed it to “new year, new life”. Another article claimed that the holidays create a lot of pressures at the end of the year that combine to put stress on people in unhappy or weak relationships. Family, financial woes, etc. associated with the holidays add to the stress. Turning over a new leaf to start over and improve ones life was another reason given. This seems to be a logical explanation for a clearly difficult and perhaps heart wrenching decision.

In my experience, people with children often want to wait until after the holidays for the sake of the children. There is also the hope, perhaps overly optimistic, that the divorce will be completed by the beginning of the next school year. These people tend to be in the “improving ones life” camp.

So as divorce lawyers, we hope to avoid or at least resolve in advance the holiday visitation disputes that inevitably crop up, then relax and enjoy the holiday as we await the busy season to begin.

In the last several years, the phenomena started early for us and many other attorneys. We were contacted by more people in December in the last few years than in any years in recent memory. This year, the calls started in November at a pace more robust than in prior years.  Moreover, we have heard of more people telling their spouse it “is over” before the holidays this year. I suspect that in some, it was the discovery/disclosure of a new significant other or perhaps pressure being exerted by that person that was the cause. In other cases, the person just didn’t want to wait until the new year to advise their spouse.

Whatever the reason, we await those who see 2017 as a chance for happiness or a fresh start. Happy New Year?!?!

______________________________________________________

Eric SolotoffEric 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 esolotoff@foxrothschild.com.

Connect with Eric: Twitter_64 Linkedin

They say a picture is worth a thousand words, and in the recently unpublished (not precedential) case of C.S. v. B. S., Judge Jones determined that 25-years’ worth of family pictures destroyed by a scorned ex-wife are also worth $5,000.00.

In C.S. v. B. S., the parties divorced after approximately 25 years of marriage. They had one child, who was emancipated. The parties’ entered into a Matrimonial Settlement Agreement, and agreed, among other things, that the husband would have the right to share in the family photographs and videos that were kept in the in the marital residence, where the wife continued to exclusively reside.

However, shortly after the parties’ divorce, the wife refused to allow plaintiff to have or copy any of the photos or videos of the marriage. The husband sent the wife an email requesting her cooperation to retrieve the photos and videos and she replied that she had disposed of them because he had allegedly been unfaithful during the marriage and no longer wanted to be reminded of him.

24276086 - old letters and antique family photos parents, grandfather; grandmother; children nostalgic vintage pictures from ca 1900

The husband sought enforcement of his rights and damages for the wife’s breach of the marital settlement agreement and the Court scheduled the matter for a hearing. At the hearing, the Court did not accept the wife’s testimony that she returned the husband’s childhood pictures (one torn into pieces), completely skipping over the last 25 years of the husband’s life, due to her interpretation of the parties’ agreement. Further, the wife did not indicate how or when she disposed of the photos, but testified that she believed it was before the divorce. She could not answer why, if she disposed of the photos before the divorce, the settlement agreement provided for plaintiff to share in the photographs and videos. The Court concluded that the wife’s refusal to provide the husband with the photos and videos of the marriage was a violation of the husband’s rights.

So what is the husband’s remedy? Unfortunately, the 25 years of family photographs cannot be replaced, so the Court had the task of fashioning an appropriate remedy.

First, the Court found that, in divorce proceedings, there is an implicit duty of good faith and fair dealing between parties. This means that each party has an obligation to treat the other fairly and respectfully during the divorce process, including honoring each other’s rights to marital property and adhering to terms of settlement agreements and consent orders. Thus, the wife breached the duty of good faith and fair dealing by depriving the husband of the family photos and videos.

The Court came up with three scenarios based on the Wife’s testimony: (1) she disposed of the photos and videos after the entry of the marital settlement agreement; (2) she disposed of the photos and videos before the entry of the marital settlement agreement; and (3) the photos and videos were not destroyed and still exist.

The Court opined that under scenario 1, if the wife disposed of the photos and videos after the entry of the marital settlement agreement, such action is a violation of the husband’s rights under the express terms of the document.

Under scenario 2, if the wife disposed of the photos and videos before the entry of the marital settlement agreement, such action is a violation of the implicit obligation of fair dealing, as the wife could not have possibly honored the agreement regarding the sharing of the photos and videos if they no longer existed. Under this scenario, the wife’s conduct “would constitute more than a mere breach of contract, but an actual misrepresentation”. The court also added that, when parties file divorce pleadings, the property of the marriage is deemed, in custodia legia (i.e. property under control of the court) pending resolution. Thus, the wife’s complete disposal of the marital photos and videos during the divorce process is evidence of a lack of good faith and fair dealing.

Under scenario 3, if the photos and videos were not destroyed and still exist, the wife is committing the tort of conversion (i.e. the intentional exercise of dominion or control over a property which interferes with the legal right of another to possess or control same).

39848897 - old empty photo frame with tape

Regardless as to which scenario was the truth, each entitled the husband to damages from the wife and thus the Court was next tasked with crafting a remedy for the husband. Generally, when a party wrongfully takes another’s property, the aggrieved party is entitled to damages, which are assessed under either a market value analysis or cost replacement analysis. However, in this case, due to the unique nature of the photos and videos neither of these analyses apply, since there is no market value or cost replacement value for personal family photos and videos. Therefore, financial compensation and/or reasonable sanctions are the most logical and available options in the Family Court, even though assigning an amount may prove complicated.

Prior to assessing financial compensation and/or reasonable sanctions in this type of scenario, there must be a foundation of evidence to support that:

(a)        the other party actually did take, damage or destroy the property, in violation of the aggrieved party’s rights;

(b)        the aggrieved party genuinely wanted the items in question; and

(c)        the violating party knew or should have known that the aggrieved party wanted the property and that such property had a particular personal value or significance.

Here, after a consideration of the parties’ testimony and other evidence before the Court, Judge Jones found that the wife, by disposing of or destroying the family photos and videos, met all of these factors and awarded the plaintiff $5,000.00.

Before concluding, Judge Jones reminded us that each case and each issue is fact-sensitive and that damages are to be assessed based on the specific facts of each case.

That being said, revenge comes with a price. Here, it was $5,000.00 and 25 years of lost memories, but let this be a warning: before you act, whether it be out of anger, spite, or revenge, think twice about how much it may cost you for that moment of satisfaction.