Eric S. Solotoff

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On May 21, 2010, the Appellate Division issued a reported (precedential) opinion in Colca v. Anson involving different aspects of child support and college support.  This case reinforces several principles regarding child support and payment of college expenses that we already knew (which makes it somewhat surprising that it was reported) but nevertheless is a good reminder of certain basic principles. 

The first of these principles is that child support belongs to the child and thus cannot be waived by a parent or for that matter, by a court.  This comes up in two contexts in this case.  First, in a 2005 Order, for whatever reason, the trial court denied the father’s request for child support for the parties’ daughter who was in college.  In another motion in 2008, the father sought child support again.  Thinking that the matter had previously been decided by the court and that there were no changes of circumstances, the mother did not even file a Case Information Statement. 

The trial court disagreed with the mother’s position that the prior Order was forever binding and required a showing of changed circumstances, pointing out that the duty to support a child continues until emancipation.

In addition, the Appellate Division affirmed the trial court’s decision that the child’s inheritance could not be considered with regard to support.  While perhaps correct as to child support, there are not enough facts given in this opinion about how much was really in dispute. That said, the Child Support Guidelines suggest an adjustment to child support may be required if a child has an extraordinarily high income.  Also, in the famous NJ case on college expenses, Newburgh v. Arrigo, which we have blogged on many times before, a child’s assets are a factor to be considered.  Since the college was at issue in this case, one wonders why the inheritance was not considered here.Continue Reading A Decision To Not Require Child Support Is Not Binding on Future Court To Hear Matter – Child Support Cannot Be Waived

Previously, we blogged about a trial court opinion that allowed a parent to seek damages for interference with custody/parental alienation.  In fact, we noted the conflicting trial court opinions released in the last year or so, one of which (in Hudson County) allowed a suit for intentional infliction of emotional distress in these matters, and another (in Morris County) which denied this relief for failing to state a claim.The Appellate Division weighed in on the Morris County case on May 3, 2010, affirming Judge Rand’s decision to dismiss the case in Segal v. Lynch.  This was a reported, thus precedential opinion.

While rejecting the trial court’s decision to dismiss the case based upon the "Heart Balm Act" which prohibited suits for interference with a marital relations, the Appellate Division nonetheless decided that the suit was barred based upon best interest and public policy considerations.  In doing so, the court held:

We acknowledge with equal force, however, that plaintiff’s cause of action raises profound questions of public policy concerning the propriety of permitting a parent to utilize a child’s loss of affection for him or her as grounds for civil liability against the other parent. On its face, such a cause of action has the potential to deteriorate into an abusive process; it can be wielded like a sword by an emotionally
distraught parent with little to no consideration of how the litigation will affect the child. Most alarming is the potential for great harm such a cause of action would pose to the child.

Our overarching consideration in all matters concerning children involved in the judicial system is "the best interests of the child." This principle is embedded in the doctrine of parens patriae, which authorizes the court to intervene when necessary to prevent harm to the child. Application of this principle to the case at hand leads us to one inexorable conclusion: plaintiff’s cause of action for intentional infliction of emotional distress must be barred as inimical to and irreconcilable with the best interests of the children
involved in this suit.

Continue Reading APPELLATE DIVISION REJECTS INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AS REMEDY FOR INTERFERENCE WITH CUSTODY

In an interesting unreported opinion in the case of Tiger v. Tiger released on April 21, 2010, the Appellate Division affirmed an Order enforcing a Property Settlement Agreement and post-judgment Consent Order and denying the husband’s request for an ability to pay hearing regarding alimony and the remainder of his equitable distribution obligation.

After a 35 year marriage, the parties were divorced in 2005 and the husband was required to pay short term alimony and $150,000 in equitable distribution over 4 years.  The husband failed to pay his 2007 and 2008 obligations but never filed a motion seeking modification.  The wife, however, filed an enforcement motion in 2007 and the husband was ordered to pay the $40,000 owed.  The husband filed a motion for reconsideration wherein his alimony was reduced from $70,000 to $50,000 and he was granted more time to pay his equitable distribution payment.  He then failed to pay his 2008 equitable distribution payment and another enforcement motion ensued.  A plenary hearing was ordered as a result but the hearing never happened because the parties entered into a Consent Order wherein the husband agreed not to seek to modify the equitable distribution again and not to seek to modify the alimony before 1/1/10. Not surprisingly, he failed to comply and another enforcement motion was filed in late 2008. The husband used the economic situation in the real estate industry as a reason for his non-compliance.  The trial court denied his motion finding that the husband was a sophisticated business man who entered into the consent order will full knowledge of the economic situation in the real estate industry.  The appeal ensued.Continue Reading Just Enough Rope – Ex-Husband’s Attempt To Further Delay Paying Equitable Distribution Is Denied