While we do not typically blog on cases outside of the family court, a recent law division case examined the child support lien statute, N.J.S.A. 2A:56.23b and its impact on settling a personal injury case and on settlements in general.  The statute requires that a child support judgment search be performed to determine if a plaintiff in a given lawsuit has an outstanding child support obligation.  If he or she does, then the statute requires that any “net proceeds of a settlement” (i.e. the proceeds left after the payment of attorney’s fees, witnesses’ fees, court costs, and other related costs associated with the lawsuit are deducted from the settlement award) in excess of $2,000 be paid in either full or partial satisfaction of the outstanding child support arrears.  For example, let’s say $10,000 was owed in child support arrears, and a given plaintiff’s litigation costs totaled $10,000.  If the plaintiff took a $20,000 settlement, then $10,000 would go to pay his litigation costs, $8,000 would go to pay off the child support arrears, and the plaintiff would get to keep $2,000 (but would still have $2,000 in child support arrears).

In Smiley v. Thomas, et. al. , the plaintiff sued the defendants for personal injury as a result of a car accident.  He had also entered into a contingent fee agreement with his counsel, meaning that they agreed to take a fixed percentage of whatever the plaintiff was awarded in settlement or after a trial as their fee, rather than charging the plaintiff at their hourly rates.

Eventually, the defendants made a settlement offer of $25,000.  The only problem was, after the child support judgment search was conducted pursuant to the statute, it was discovered that the plaintiff had outstanding child support arrears in the amount of $19,306.04.  After satisfaction of the arrears and payment to his attorneys, the plaintiff would be left with $2,000; in fact, because his counsel fees and litigation costs exceeded the difference between the child support owed and the settlement amount, he would also be left with some unpaid child support arrears because he would have to pay counsel first.  The plaintiff refused to accept the settlement if, at the end of the day, it meant that he would only walk away with $2,000.

"No Deal"
Copyright: pockygallery / 123RF Stock Photo

But, evidently, the plaintiff’s attorney really wanted him to settle his case.  So badly, in fact, that the attorney was willing to reduce his fee.  So, the attorney asked the Court to modify the fee agreement accordingly; but, and here’s the rub, the attorney also asked the Court to call the money that the plaintiff would realize as a result of this reduction something other than “net settlement proceeds” so that they would not be subject to the child support lien by operation of law.

The Court weighed two important competing interests.  On the one hand, Courts love settlements!  Settlements make both parties feel happy (or equally unhappy) with the outcome and therefore (hopefully) curb future or continued litigation.  On the other hand, our case law is replete with decisions affirming over and over again a parent’s obligation to financially support his or her children and there is plenty of case law carving out exceptions, identifying specific needs of the children that should be included in support, and generally providing guidance as to arrival at an appropriate child support arrangement (seriously, there are a lot of these decisions and we’ve blogged on them here, here, here, here, here, and many more times).

Ultimately, the Court determined that a parent’s obligation to financially support his or her children trumps the competing interest in promoting settlement.  The Court found that it had the obligation to call a spade a spade.  It did not, and found that it could not, call the money that the plaintiff would receive as a result of the reduced counsel fee award something other than “net proceeds from settlement” in order to help the plaintiff evade his child support obligation.  To do so would be in direct contravention of the very purpose of the child support judgment lien statute.


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.

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.

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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?!?!

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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

In the case of M.C. v. P.C. (unreported, non-precedential), Judge Jones explores the issues surrounding mid-week overnight parenting time during the school year and its effect on the best interests of the children. In many cases, both parents live close by and are routinely exercising parenting time on weekdays in addition to weekends. While frequent and continuing contact with both parents is almost always positive for the child, it does not come without issue in the post-divorce context. We frequently see cases where one parent refuses to complete homework or take the child to soccer practice during their weekday parenting time.

The facts of this case are simple. The parents have two children, ages 8 and 10. As part of their divorce agreement, one parent was the primary residential custodial parent with the other parent having reasonable and liberal parenting time, to include every Thursday evening overnight into Friday mornings.

The primary parent, who works in the children’s school (but is not their teacher) filed an application to modify midweek overnight parenting time asserting that the children often come to school unprepared on Friday mornings and without their homework completed. It was alleged that the primary parent then has to rush around on Friday mornings assisting the children with completing their assignments before school formally begins. The noncustodial parent obviously denies same, however the Court noted that neither party produced any corroborating evidence so the Court was forced to rely upon the parties own testimonial positions.

In its analysis, the Court took “judicial notice” (meaning something is so well known it cannot be reasonably doubted) that education is one of the most important aspects of a young child’s life. The Court noted that children “need to learn from both parents, as early as possible, that tending to homework, test preparation and general scholastic readiness must take an appropriately high priority in a child’s schedule”.

That said, even in the cases where the parents are entirely cooperative, when the children go back and forth between households, this creates another layer of difficulty in trying to implement these fundamental educational values and maintain consistency. The Court opined while it is conceivable that back and forth parenting time could cause a child to incur a significant distribution and a loss of appropriate focus on meeting scholastic responsibilities, it is not per se harmful or contrary to a child’s best interests. As with many issues that arise in a family law matter, it is fact-sensitive and case specific given that each family and child is unique.

The Court goes on to remind that:
“Shared parenting” means more than simply counting the hours and minutes a child stays under a parent’s roof but also involves each parent meeting his or her responsibilities during such a time rather than unilaterally passing it off onto the other parent. Put another way, a parent cannot insist on simply taking the children for parenting time while siphoning out the parenting obligations which naturally continue to exist during such times. If a parent wants midweek overnight parenting time during a school year, that comes with all of the scholastic responsibility and other midweek obligations, in one integrated package.

The Court noted that although the primary parent’s testimony was persuasive there were evidentiary obstacles insofar as how prevalent the deficiencies that were complained of really were. Was this a situation where the child only missed 1 out of 10 assignments or a situation where the child’s backpack was not even opened with nothing done at all? The Court noted that evidence could have been presented by school records, testimony from teachers, lower test scores or any other evidence of the children’s lack of readiness on Fridays, as compared with other days when the children are in the care of the primary parent.

In sum, the Court found that there was insufficient evidence to make a specific finding that the homework issue was so prevalent as to require an immediate elimination of midweek overnight parenting time but established a helpful protocol for the parties moving forward as to how to deal with the issue of homework.

What can be taken away from this is case is how important it is to be fully prepared when presenting your application to the Court. Had the primary parent produced more corroborating evidence as to the magnitude of the missed assignments (assuming it was substantial), the outcome may have been different. It is always important to seek the advice of experienced counsel when presenting any application (especially an application to modify an existing arrangement/order) to the Court.

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Lauren K. Beaver is a contributor to the New Jersey Family Law Blog and an attorney in Fox Rothschild LLP’s Family Law Practice Group. Lauren practices out of the firm’s Princeton, New Jersey office representing clients on issues relating to divorce, support, equitable distribution, custody, and parenting time. Lauren also offers mediation services to those looking to procure a more amicable divorce. Lauren can be reached at (609) 844-3027 or lbeaver@foxrothschild.com.

It’s a story as old as time in the New Jersey courts. Alimony is set based upon the income of parties to a divorce, but then years later, a spouse loses his or her job and is unable to continue to make the agreed upon or ordered payments. What is a Court to do?

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In the old days, prior to the enactment of the new alimony statute, judges had certain checklists, gathered from all the law that they typically used to assess whether to obligor would gain relief. You can find that checklist I compiled in 2013 here.

However, now that the new statute is in effect, the question becomes, how should judges treat on obligor’s loss of employment?

Mills v. Mills, an opinion by Judge Jones of Ocean County, approved for publication, provides some guidance on the issue.
In the Mills case, the parties divorced in 2013 after a 13-year marriage. At the time of the divorce, the parties agreed that the Husband would pay the Wife alimony in the amount of $330 per week for 8 years, as well as child support in the amount of $200 per week. This award was based upon the Husband’s income as a district sales manager for a company selling residential and commercial flooring services, earning $108,000 per year and the wife’s income as a teacher, earning $59,000 per year.

In January 2015, after 12 years of employment at the flooring company, the Husband lost his job. The job loss was involuntary; it stemmed from his employer’s decision to restructure its business plan and eliminate the Husband’s position.

The Husband began searching for a new job immediately. In April, 2015, he received an offer of employment form another flooring company, but at a significantly lower salary of $70,000, with a $6,000 car allowance.

At this point, the Husband was faced with a difficult decision – does he accept the job at a lower rate, or decline the opportunity and look for another job closer to his prior income? Ultimately, he decided to accept the new job.

Initially after accepting the new job, the Husband continued to pay alimony at the rate of $330 per week. He had received severance pay of $35,000 and was able to temporarily supplement his income from there. However, as the year neared its end, the Husband had depleted all reserves.

The Husband filed a motion on November 24, 2015 for a prospective modification and reduction of his support obligations based upon a substantial change in circumstances. In the meantime, he earned a performance bonus of $6,000, bringing his total compensation t $82,000, which still constituted a $26,000 from his prior income.

The Wife opposed the motion, and questioned the circumstances under which the Husband lost his prior employment, and that even if the loss was involuntary, he had not demonstrated that he could no longer earn at least $108,000. She also stated that the loss of support would create economic difficulties for her.

The parties were unable to resolve their differences and the matter proceeded to a contested hearing. The Husband testified that when he began at the flooring company, he was earning $50,000 and gradually worked his way up to a salary of $108,000. The Court found that he testified credibly that he could not simply walk into a new position at a new company and immediately command the same salary.
Interesting, the Court began its legal analysis by expounding upon a “Catch 22” in which many obligors found themselves under the old statute.

…no matter what decision he or she made in accepting or declining a new position at a lower pay, that decision might subsequently be critiqued, criticized and even legally challenged by an ex-spouse who, in resisting a reduction in alimony, might contend that the supporting spouse made an inappropriate choice and therefore should not receive a reduction in his or her support obligation   … when a supporting spouse lost his or her job and then declined an offer to take a lower paying position…and instead kept searching for a higher paying position while seeking a reduction in support, the supported spouse would often argue that the obligor unreasonably bypassed an opportunity to earn at least some income that could have been used to pay some of the ongoing support obligation…

Reciprocally, if a supporting spouse accepted the offer for new employment at a substantially lower salary and then sought a reduction in support, a supported spouse would often argue that the obligor was underemployed because he or she accepted a position at a significantly decreased level of pay or proven “income potential”…

Judge Jones rejected the suggestion that there is a “one-size-fits-all” legal analysis for approaching and analyzing these types of issues. In that regard, he stated “imputation of income was a discretionary matter not always capable of precise or exact determination”.

After citing the amended alimony statute – N.J.S.A. 2:a:34-23(k) – for guidance as to how to analyze this issue. In doing so, he specifically referenced subsection (2), which expressly references that when an obligor loses his or her employment, a judge may consider the obligor’s documented efforts to obtain replacement employment or pursue an alternative occupation, as well as subsection (3) which provides that a court may consider the obligor’s good faith effort to find remunerative employment at any level in any field.

However, the Judge noted that the amended statute does not expressly establish or provide a specific standard for statutory analysis in situations when an obligor actually obtains new employment at a significantly lower pay, then seeks to reduce his or her support obligation over the supported spouse’s objections.

The Court concluded that as a matter of equity, fairness, as well as the most reasonable, consistent and straightforward analysis would be addressed by the following two-step inquiry:

(1) Was the supporting spouse’s choice in accepting a particular replacement employment opportunity objectively reasonable under the totality of the circumstances?
(2) If so, what if any resulting support adjustment should occur that is fair and reasonable to both parties, given their respective situations?

In applying this two-step inquiry, as well as the statutory mandates, the Court concluded that the loss of income was involuntary and that the Husband made legitimate efforts to obtain new employment in the same industry in good faith.

While the salary in the new position was lower, the Court found that the Husband nonetheless made an objectively reasonable decision in responsibly trying to begin at a new place of employment. In fact, the Court found that the Husband was very fortunate in this economy to find replacement work.

Nor did the Court find any objective evidence that the Husband was deliberately underemployed or unreasonably turned down or avoided other job opportunities at higher income levels.
After considering all the evidence, the Court reduced the Husband’s alimony obligation to $250 per week and his child support obligation to $194 per week.

With this decision, Judge Jones clearly articulated what I have personally heard many obligors say to me when deciding whether to move forward with a first, second or even third motion for a reduction in alimony based upon reduced income. Whatever step an obligor took, the supported spouse had a response; and one that was well supported by case law.

Either way, the supported spouse would argue that the reduction in income constituted underemployment and that the Court should impute income consistent with the obligor’s prior income.

Judge Jones’ decision provides a clearer analysis that Court should undertake in this all-too-familiar situation.
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Eliana Baer, Associate, Fox Rothschild LLPEliana 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.

More and more, when discussing the payment of college education expenses with clients for their children, I am being asked, “What about graduate school?”  The guiding principal behind that question, I suppose, is that, in New Jersey, it is well-settled that absent extenuating circumstances, both parties to a divorce have an obligation to financially provide for their children’s college educations.  By that logic, if a child seeks an advanced degree, don’t both parties have an obligation to financially contribute to those educational costs as well?

The question of whether a graduate degree is the new undergraduate degree is a debatable one, sure.  But in a recent unpublished (not precedential) decision, J.C. v. A.C., the New Jersey Superior Court determined that even though divorced parents have an obligation to contribute to their children’s pursuit of a college degree in ordinary circumstances, this doesn’t mean that there is a continuing obligation to contribute to the child’s pursuit of a graduate degree.

 

The pertinent question here is whether the child is emancipated, i.e., whether the child has the ability to support him or herself.  New Jersey generally deems children to be unemancipated, even if they are over the age of 18, if they are attending college full time.  This is because our courts have established that a child attending college is generally not capable of supporting him or herself yet.  But, as Judge Jones discusses in J.C., the same cannot necessarily be said of a child who has already obtained a college education and has a college degree.  The Court cannot simply look at graduate school as an extension of undergraduate education, because there are clear differences between a college student with only a high school degree, and a graduate student with a college degree:

First, as previously noted, a graduate student has usually and most critically already obtained a bachelor’s degree, evidencing an enhanced ability to start taking independent responsibility for his or her own life.

Second, a graduate student who already has a bachelor’s degree – as compared to an undergraduate student with only a high school diploma – may logically and inherently more marketable [sic] in certain instances, an therefore reasonably expected to utilize the degree and apply for jobs where he or she can earn an independent living, even if such jobs may pay less than certain positions which require a master’s degree or other advanced degrees that the student can obtain on his or her own at a later date. [. . .].

Third, the distinction between an undergraduate student and a graduate student has been implicitly recognized by the Federal government itself.  When an undergraduate student applies for financial aid through FAFSA, the FAFSA application form generally requires applicants to disclose parental income as part of the information necessary to determine eligibility and the amount of financial aid the applicant may receive.  Graduate and professional degree students are generally considered independent students and are not required to supply information regarding parental income on the FAFSA application. [. . .].

Fourth, absent highly unusual circumstances, a graudate student is, from a chronological standpoint, generally older than the undergraduate student, and therefore naturally expected to be more mature and independent in a manner consistent with his or her years and life experience.  With such years are naturally expected to come the ability to be self sufficient, outside the sphere of parental influence. [. . .].

Fifth, from a standpoint of sensibility, one may legitimately question just how far the concept of extending emancipation and child dependency beyond college graduation actually goes. [. . .]. Does a parent have to financially maintain a “child” who is 25 or 30 years old, just because the child chooses to seek further advanced degrees, and the parent happened to have had an unsuccessful marriage and divorced the child’s other parent many years earlier?  Does such a result make practical sense?

The question then, says Judge Jones, must be:  is this college graduate emancipated, or not?  Judge Jones’ analysis above suggests that the Court should, in most circumstances, consider a college grad to be capable of supporting him or herself – even if he or she might want to pursue a higher education degree that would allow him or her to support him/herself, perhaps, on a higher salary – and therefore be emancipated.  The burden of proof, then, should lie with the applicant seeking a parent’s contribution to graduate educational expenses to show that it is “appropriate, necessary, and equitable under the circumstances” to require continued support by way of an order requiring a parent to help pay for grad school.  The pertinent factors in that analysis would be the oft-cited Newburgh v. Arrigo factors:

  1. Whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education;
  2. The effect of the background, values, and goals of the parent on the reasonableness of the expectation of the child for higher education;
  3. The amount of the contribution sought by the child for the cost of higher education;
  4. The ability of the parent to pay that cost;
  5. The relationship of the requested contribution to the kind of school or course of study sought by the child;
  6. The financial resources of both parents;
  7. The commitment to and aptitude of the child for the requested education;
  8. The financial resources of the child, including assets owned individually or held in custodianship or trust;
  9. The ability of the child to earn income during the school year or on vacation;
  10. The availability of financial aid in the form of college grants and loans;
  11. The child’s relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and
  12. The relationship of the education requested to any prior training and to the overall long-range goals of the child.

These, combined with other equitable factors for consideration – most obviously, the inherent differences between a high school student seeking contribution to undergraduate expenses and a college grad seeking contribution to graduate school expenses – have to be considered when determining whether it is fair for a parent to have to contribute to graduate education expenses.

But wait…what about the new statute?

The J.C. v. A.C. case recognizes that, effective February 1, 2017, there will be major changes in the law of emancipation and termination of a parent’s obligation to pay child and other financial support under N.J.S.A. 2A:17-56.67.  Under that statute – which will apply retroactively as well as prospectively – a parent’s obligation to pay child support will terminate by operation of law when a child reaches the age of 19, unless a court orders an extension of payment which shall not extend beyond the child’s 23rd birthday.  If a child is enrolled full time in college after he or she reaches the age of 19, then child support will not be terminated until that child reaches age 23, by which time the average college student has indeed graduated.

That’s a long-winded way of saying:  If your kid is in college, child support and a parent’s obligation to pay for college will continue until your kid turns 23.  Then, there can be no more child support.

BUT – and this is a big “but” – the amended statute provides that even though “child support” – i.e. payments from one parent to another for the support of the child – terminates, a child over the age of 23 will be able to seek a court order requiring “other forms of financial maintenance” from a parent.  In other words, a child over the age of 23 can still ask the court to require a parent to pay his/her expenses, it just won’t be called “child support.”

I recently moderated a Continuing Legal Education Panel where the panelists and I discussed this impending new statute, and this very issue was raised:  Under the new statute, could a 23 year old (or older!) “child” apply to the Court for another “form of financial maintenance” from a parent in the form of contribution to graduate education expenses?  And could that child be successful?

Judge Jones’ opinion certainly provides guidance on that question and suggests that not every claim by a child seeking a parent’s contribution to graduate school expenses should be granted under the new statute; the test will be whether the child can meet his or her burden of proof to show that an order requiring a parent to contribute to grad school expenses is “appropriate, necessary, and equitable under the circumstances” based upon the Newburgh factors and any other equitable considerations, including most importantly the general distinctions that can be made between a high school student seeking contribution to undergraduate expenses and a college graduate seeking contribution from a parent for grad school expenses.


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.

On December 5, 2016, an extremely interesting reported (precedential) opinion was released by the Appellate Division in the matter of J.S. v. D.S.  The opinion was remarkable for two reasons, one procedural and one substantive.  On the procedural side, what was interesting was that the Appellate Division proceeded to decide the case even though the matter was settled and the parties sought to have the appeal dismissed because the Court determined that “the interests of justice require a disposition of the appeal’s merits.”

44694685 - domestic violence abuse or aggression within marriage against partner wife or children

The substantively interesting part of the opinion was the holding that parties cannot consent to the entry of a domestic violence Final Restraining Order (“FRO”).  Rather, because of the far reaching implications of an FRO, a trial court must make the requisite finding that an act of domestic violence has occurred.

In this case, after the entry of a Temporary Restraining Order (“TRO”), at the date of the FRO hearing, the parties reached an agreement which called for defendant’s consent to an FRO in exchange for plaintiff’s consent to defendant’s exclusive possession of the marital home pending further order in the matrimonial proceedings.  Rather than question the plaintiff about the act of domestic violence or the defendant to see if there was agreement that the act had occurred, but rather only asked the usual questions regarding the voluntariness of the agreement.  Satisfied that the agreement was voluntary, an FRO was entered.  The defendant then filed a timely appeal asserting that the FRO was void ab initio (i.e. from the outset) because the judge mistakenly issued the FRO without taking testimony about the allegations, without finding an act of domestic violence occurred, and without determining plaintiff required protection from defendant.

Apparently, while the appeal was pending, the same or similar agreement to continue the FRO was reached again and the parties tried to dismiss the appeal but the Appellate Division would not allow it finding:

… In light of the strong public policies underlying the Act, we choose to exercise our discretion to consider the appeal on its merits. We have an obligation to ensure the FRO was legitimately entered and should not permit its wrongful perpetuation simply because it may have become a useful chip in the settlement of the parties’ matrimonial disputes.

Having rejected the parties’ request that we dismiss the appeal and having resolved to consider the merits of this appeal, we agree with what defendant previously argued: the FRO can no longer stand. A domestic violence final restraining order may not be entered by consent or without a factual foundation. See Franklin v. Sloskey, 385 N.J. Super. 534, 540-41 (App. Div. 2006).  Because the trial judge mistakenly failed to elicit a factual foundation, failed to find domestic violence occurred, and failed to determine whether plaintiff required protection as a result of defendant’s conduct, we vacate the FRO.

The matter was then remanded for an FRO hearing.

Interestingly, in a footnote, the Appellate Division provided a road map, as it were, for parties that want to consent to an FRO, when it stated:

We do not mean to suggest every domestic violence action must be tried to a conclusion or that a defendant may not accede to relief sought by a plaintiff. Nothing prevents a defendant from declining to defend against such an action or from acknowledging under oath the commission of an act of domestic violence. The consequences, however, are too serious to permit entry of an FRO merely by consent. Before entering an FRO, a court must ensure there exists an adequate factual foundation and that the defendant understands the consequences of the decision not to contest the matter. A court must also find that the FRO is necessary “to protect the plaintiff from an immediate danger or to prevent further abuse.” Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006). (Emphasis added).

The take away from this case is that FROs are serious matters and that care must be taken if they are going to be used as bargaining chips to settle issues on either an interim or final basis.

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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

Photo credit:  Copyright: <a href=’http://www.123rf.com/profile_dirkercken’>dirkercken / 123RF Stock Photo</a>

Custody Neutral Assessments (CNAs), a mostly South Jersey phenomenon, have been described as a supposed alternate dispute resolution program that was available for high conflict cases that were inappropriate for, or are unable to be resolved, through mediation. This program utilizes several mental health practitioners in the community who meet with the parties, discuss contested issues and make clinical recommendations to the court on how to resolve disputed issues.  The way it was supposed to work is that in the counties that use CNAs, after mandatory mediation fails, the Court was to enter an order appointing an evaluator to perform a CNA.  The parties then were to receive notices as to the time and date of their initial meeting. The fee was nominal compared to a full-blown custody evaluation because the parties are paying for approximately 4 hours of the evaluator’s time.  Each of the parties meet with the evaluator and it is up to the evaluator to determine if it would be appropriate for the children, step-parents, etc. to participate.  Unlike a custody evaluation, there is no psychological testing or psychological evaluations.  The evaluator then issues recommendations to the Court which can include custody, a parenting time schedule, anger management, a drug and alcohol evaluation, and recommendations regarding related issues.  Once the Court receives the CNA, the parties are scheduled for a Case Management Conference at which point the Court determines whether to accept, reject or modify the CNA recommendations.  At this hearing, the party that is dissatisfied with the CNA can request a custody evaluation if the CNA involves a change in custody or custody determination.

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However, what was supposed to be a non-binding dispute resolution tool often became some more than that though many practictioners questioned how this could be so.  In fact, when I wrote the Custody chapter in the most recent edition of New Jersey Family Law Practice, published by ICLE, I wrote:

            While this process may be a way to get some level of expert involvement in cases that cannot afford a full-blown evaluation, or a way to ferret out bad-faith, anger driven or other “custody cases” that are not truly bona fide custody disputes, there are certainly causes for concern with the process.  First, given that the CNAs are abbreviated, it seems unlikely, if not impossible that the recommendations being made are based upon a reasonable degree of psychological certainty.  See N.J.R.E. 702, 401 and 402.  See also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed. 2d 469 (1993); James v. Chevron U.S.A., Inc., 301 N.J. Super. 512 (App. Div. 1997), aff’d 155 N.J. 279 (1998)(which held that Daubert applied in New Jersey).  See also Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167 (1999).  As such, they would be legally inadmissible at trial and little more than a net opinion.

Further, if this is a method of alternate dispute resolution, one wonders whether it is proper that the court is being provided with these so-called “recommendations” made after limited involvement with the parties and perhaps no involvement with the children.  To the extent that the process is meant to evoke a settlement, does the reporting of the recommendations to the court violate N.J.R.E. 408?  Though it is clearly not mediation, should a confidentiality standard that applies to mediation also apply to a CNA?  See Lehr v. Afflito, 382 N.J. Super. 376 (App. Div. 2006).  If it is an alternate dispute resolution method that may have binding implications, should there not be heightened procedural safeguards as there are now required for arbitration of custody matters?  See Fawzy v. Fawzy, 199 N.J. 456 (2009).

If and when there become more widespread implementation of CNAs, perhaps some of these questions will be answered.

 

Well, it took almost 5 years since I wrote those words, but the question was just answered by Judge Jones in his unpublished decision in the  case of Serrano v. Urbano released on December 1, 2016 when he held that CNAs were not evidential as an expert report, though the preparer could testify about what was told and “his or her professional impressions and concerns regarding such statements or actions which the assessor personally witnessed and/or experienced in his or her contact with either party during such process, if relevant to the best interests of the child at issue.”

Of note, Judge Jones held that:

A C.N.A., however, is not a “mini-evaluation,” or an “express evaluation”, or a “discount evaluation. Most particularly, the C.N.A. generally does not involve any forensic psychological testing of either party. Nor are there generally any bonding evaluations between the parties and child. In fact, the assessor may not even meet the child, and may not include an analysis of the statutory custody factors under N.J.S.A. 9:2-4. Rather, unless otherwise agreed, the assessor generally meets with the litigants for a limited period of time, converses with them separately, and renders a report .

More importantly, the Judge held:

When an expert has not conducted a forensic custody evaluation to serve as the foundation for a recommendation, any “expert forensic opinion” rendered by the professional regarding custody, as rendered in the content of a C.N.A., cannot be admitted into evidence as the results of a full forensic evaluation, because no such evaluation ever took place. An expert forensic opinion on custody without a forensic evaluation is essentially a net opinion. Moreover, the assessor in this case, though a mental health professional, was not a forensic psychologist.

That, however, is not the end of the analysis because the Judge also held that:

Under the doctrine of limited admissibility, however, the testimony and C.N.A. report of the assessor is admissible in part on the issue of the parties’ words, actions and conduct during the C.N.A. process, as well as any impressions and concerns the assessor experienced in witnessing same.

The first part of that essentially renders the preparer of the CNA a fact witness which seems consistent with the Rules of Evidence in terms of admissibility.  However, most fact witnesses are not permitted to testify about their opinion. Since impressions and concerns are essentially opinions, this seems to provide a way to get in through the back door what you can’t get in through the front door.  Since this is both a trial court and unreported decision, it is not precedential on any other trial judge, thus, the argument that the court should not consider the preparer of the CNA’s “impressions” or “concern” remains a viable one to make.

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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.

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Ah, that unforgettable line uttered by Veruca Salt in Willy Wonka and the Chocolate Factory.  As a matrimonial attorney, this is what it feels like we deal with quite often.  But I am not referring to people just being demanding, I am talking about people making unreasonable demands, with no apparent justification in law or in fact.  In fact, I have had enough of “my client just wants”, “that’s not enough” and “I know that a court would never do that but my client insists” over the last several months to last me a career.

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Some examples have been, in no particular order, demands for child support that exceed what the Guidelines would require by 7 to 10 times; demands for combined alimony and child support representing 60% or more of pre-tax income; demands for a buy out on the house for higher than the agreed upon value less the agreed upon mortgage; demands to share in exempt inheritances, trusts or family gifts that were never commingled; demands that one party get most of the marital assets because they were held in her name, though not exempt; demands for more than half of the assets, or 100% of the house free and clear of the substantial mortgage debt “because you caused the divorce.”

It is bad enough when an a litigant, who is uneducated about the law makes these demands.  That is to be expected because of ignorance of the law or raw emotions clouding judgment or both.  It is quite another thing when the client’s lawyer makes the demand, knowing that there is no rational or legal basis for the request.  As a younger lawyer, I remember incredulously asking an adversary, “Is your client really seeking 80% of the assets and 90% of my client’s net income?” to which the answer was yes.  Inevitably, when they are called on it, they sell their client out, saying how unreasonable they are, but they are just doing what they have been instructed to do.  Is that response good enough?  First, you wonder if they ever actually educated their client on the law (or whether they know it themselves).  If they have educated the client, is it proper to make a demand that is unreasonable, if not bad faith?

On the other side of the equation there may be the litigant that is willing to negotiate a reasonable resolution within the expected settlement parameters based upon the facts of the case (though often, water finds is level and where there is one unreasonable party, their spouse may be their mirror image in that regard.)  But what is the reasonable litigant to do?  They are often left with having to make the  “Hobson’s choice” of capitulating to the unreasonable party, or incurring the cost of litigation.  Worse yet, I have seen mediators, early settlement panelists, and even judges, try to pressure the reasonable party to settle because the other party wont budge, or split differences between the reasonable proposal and the unreasonable demand resulting in a slightly less unreasonable proposed resolution.  That said, I have seen these same judges, mediators or panelists use the threat that the unreasonable party may be required to pay the other party’s counsel fees as an effective deterrent.  Unfortunately, usually by that time, a lot of money has already been spent for something that should probably have been nipped in the bud from day one.

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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.

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Many parents want to believe their children are “gifted,” but do they know that this “giftedness” may increase their child support obligations?

Judge Jones’ new published (precedential) opinion, P.S. v. J.S. highlighted the distinction between a regular old “extra-curricular activity” and the pursuits of a “gifted” child, reaffirming that, where a child is “gifted,” the Court may deviate from the Child Support Guidelines to award supplementary child support in order to foster that child’s talents and providing some guidance on how the Court might assess whether a child is “gifted” in a particular area.

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In many cases, the issue of extra-curricular activities is a big one.  Parents want their children to be able to enjoy sports, dance classes, acting lessons, singing lessons, and so on and so forth.  Most parents agree that such activities are important for a child’s enrichment and development.  However, there is often a question over whether the child support payor should contribute to these activities over and above his or her basic child support payment.

In P.S. v. J.S., the parties acknowledged that their daughter loved to act and that they wanted to support her theatrical endeavors.  The only question was whether the non-custodial parent’s child support payment already covered the cost of the daughter’s acting activity, or whether there should be an additional contribution over and above the child support payment.

In his opinion, Judge Jones began by recognizing that the Child Support Guidelines do, in fact, contemplate that the guidelines-based child support award will cover “entertainment expenses,” defined by law to include:

…fees, memberships and admissions to sports, recreational or social events, lessons or instructions, movie rentals, televisions, mobile devices, sound equipment, pets, hobbies, toys, playground equipment, photographic equipment, film processing, video games, and recreational, exercise or sports equipment.

Thus, “extra-curricular” activities are technically covered by a child support award calculated under the Child Support Guidelines.

But just when you think Judge Jones is going to “zig,” he “zags.”  Judge Jones went on to note that Comment 9(d) of the Child Support Guidelines

…expressly provides that the Court may in fact add supplemental funds to guideline-level support to help defray expenses for the development and special needs of a “gifted” child.  Under the guidelines, if a court deems a child to be “gifted” regarding a particular field or discipline, then it may be financially fair, equitable and appropriate for a court, upon application of a parent, to add a reasonable additional earmarked stipend onto both parents’ basic support obligation to help defray the costs of developing, enhancing and encouraging growth of a the child’s giftedness in a specific area.

The Court further held that the supplemental funds awarded to advance a gifted child’s development  “must be economically reasonable, with significant deference to each parent’s financial situation and actual ability to pay.”  In other words, there must be limits commensurate with the parents’ financial abilities.

The question, then, became whether the child at the center of the case was merely interested in acting as an extra-curricular activity, or whether she is a “gifted” actress.  Judge Jones opined that a child’s giftedness will generally relate “to a child’s aptitude , abilities and/or achievements” in one of four areas:  Academics, Athletics, Technology, or The Arts (though he did not foreclose other areas of “giftedness” outside these general categories).  In the particular case before Judge Jones, he found that the child in question was in fact “gifted” at acting.  As a basis for this ruling, he seemed to primarily rely upon two (2) interviews he had with the child approximately two years apart, and his observation that her dedication to and enthusiasm for acting had only seemed to grow in that time.  His decision did not, however, rest upon any sort of evaluation of her acting skills, as he acknowledged in his opinion that he had not observed her perform.  The decision suggests that a determination of a child’s giftedness may not rest upon his or her actual skill level alone.  In my opinion, the criteria for determining whether a given child is gifted will be tested and refined by further cases addressing this distinction between an extra-curricular activity and a gifted child’s pursuit.  Stay tuned…


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.

“Justice delayed is justice denied.”  I am sure that many have heard this old legal maxim.  Though the original source is unclear, what is not unclear is that it essentially means that when a legal remedy is available, but not provided in a timely fashion, it is like having no remedy, at all.

38413886 - words justice delayed is justice denied

When I speak to other attorneys in court, at mediations or at bar events, one of the things discussed most is the delay in getting matters decided.  While the discussion is sometimes about a trial decision, most of the time we are talking about routine motion practice both during active divorce cases and during post judgment cases.  For a trial, especially a long one, it is more understandable.  Very often the attorneys want to review the transcripts and otherwise have a month or more from the close of the evidence to submit written summations.  Moreover, in addition to their jam packed daily dockets, the judge needs time to review the evidence and prepare a thoughtful and comprehensive (hopefully) written or oral decision.  That said, I have been in involved in cases where it has taken more than a year from the end of a trial to get a decision.  I have heard, anecdotally, of people getting trial decisions more than 2 years after the close of the evidence.  In addition, several years ago, we heard that one judge was not permitted to start any more trials due to the number of completed trials that were not decided.  A moment ago I said that “hopefully” you then get a comprehensive decision, but very often, it seems that decisions are either incomplete, or certain findings of fact simply wrong, most likely due to the passage of time between when the testimony heard and evidence presented, and the completion of the opinion.  During this time, peoples lives remain on hold and temporary support orders which might be too high or too low remain in effect.  In the off chance that they are adjusted by the trial decision, that could create a huge arrears or huge credit to a party.  If they are not corrected, then one party had to live with a potentially unfair result for a very long time.

While there are delays in receiving trial decisions, while more understandable, this impacts fewer litigants than delays in receiving motion decisions because a very small percentage of cases are actually tried to conclusion.  On the other hand, motions are heard every Friday or every other Friday depending on the county and the judge.  Now, the rule regarding motions in family part cases, specifically R. 5:4-4(f), clearly states:

(f) Orders on Family Part Motions. Absent good cause to the contrary, a written order shall be entered at the conclusion of each motion hearing.

Unfortunately, all too often, this Court Rule is honored in the breach and the decision on the motion is delayed days, weeks, months or even years.  Yes, I said YEARS.  I have one pre-judgment motion that was filed nearly 2 years ago, in large part regarding the payment of college for the first child.  A second child is now in college and there is still no decision.  The matter, which was supposed to be tried more than a year ago, has basically been shut down for 22 months and counting.  I have another motion that is pending for more than 15 months.  We have others which have been pending for several months, including ones that are seeking either financial restraints or restraints related to children which are being flaunted while no decision is made.  I hear similar stories from many or our colleagues and adversaries.

Note too that these delays are on top of the delays in getting the motion heard in the first place.  It is not unusual for a motion to be delayed based upon an adversaries request for an adjournment.  Since first adjournment requests are almost universally granted, even when there is time of the essence on certain issues, it is most often fruitless to oppose them – though sometimes you have to.  Very often, motions are administratively adjourned because the judge’s motion calendar for the selected day is full or the judge is otherwise unavailable.  When that adjournment is added to the first adjournment request, which at that point possibly shouldn’t be granted but is granted anyway, then the motion is heard about one month after the original return date and about 2 months after it was filed.  Some judges, however, despite demanding that all papers be filed as if the motion is going to be heard, do not schedule oral argument on the motion for weeks or months.  That is then compounded when that same judge doesn’t decide the motion on the day of argument as required by the Court Rules.

What is the outcome of this delay?  For a party who is cut off financially by their spouse, they could go weeks, if not months, with little to no money at all.  When it is an enforcement motion, the violator is often empowered by the lack of a decision and doubles down in his or her violation of court Orders because they feel impervious to sanctions.  When restraints are sought and adjudication is delayed, the risk of a new status quo being improperly created or parties or children harmed because you cannot “put the genie back into the bottle”, or the money is gone, or worse yet, a child is physically or emotionally hurt, are real results of justice delayed.

The other outcome is that the harmed litigant loses faith in the judicial system. They have not been treated fairly by the delay and feel that they will never receive a fair result from the judge that they believe does not care about their case – or worse yet, they feel that the judge is harming their case if not their children and/or their life. Sometimes this results in them losing faith in their lawyers too.  Sometimes it makes cases harder to settle because decisions that could have nipped issues in the bud or shaped a fair resolution of the case do not happen or come too late and then the fight is how to fix the mess created by the delay or counsel fees created by it.  And who do you complain to?  Do you risk a negative result on the pending motion or future appearances before that judge by writing to the Presiding or Assignment Judge?

The only ones who seem to benefit from this delay are mediators or arbitrators, who the parties now have to pay because they cannot get timely relief from the court.  There is something very unfair about that, though this happens every day.  Clients suffer and the system as a whole suffers as a result.

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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.

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