As family law practitioners who frequently represent parties in domestic violence actions, we are often confronted with clients who, having been the victim of domestic violence, seek to prohibit their spouse’s presence at any location where they will also be present. Until just recently, the law remained silent as to whether a restraining order could provide such broad prohibitions. On January 17, 2012, the legal silence ended by way of the matter of State v. S.K., Docket No. A-1488-10T1, which has been approved for publication and is, therefore, binding law upon the trial courts of our state. As established in S.K., a provision in a domestic violence restraining order that prohibits a defendant from “any other place where plaintiff is located” is not generally not enforceable as The Prevention of Domestic Violence Act does not authorize such non-specific restraints. N.J.S.A. 2C:25-17 to -35.

In addition to the more ‘common’ relief of barring defendant from plaintiff’s place of residence and employment, the final restraining order in S.K. went one large step further by prohibiting defendant from “any other place where plaintiff is located”. Over five years after the restraining order was entered, defendant attended the soccer game of the parties’ children at a local high school that plaintiff also attended. While plaintiff sat in the bleachers, defendant stood near the bleachers, watching the game. Upon seeing defendant, plaintiff telephoned the police and advised them that defendant was in violation of the final restraining order. At no time did plaintiff accuse defendant of communicating or contacting her in any way. No action was taken by the police at that time.

The day following the soccer event, plaintiff filed a “citizen’s complaint” against defendant for violation of the restraining order. In response, the police filed a formal complaint, charging defendant with “disorderly persons contempt” in violation of N.J.S.A. 2C:29-9b, as well as “petty disorderly persons harassment”, in violation of N.J.S.A. 2C:33-4a. Accordingly, defendant was arrested and processed and released from custody. Trial was held six months later, wherein the State offered defendant a plea agreement in exchange for serving no jail time. Defendant agreed to plead guilty to the contempt charge conditioned upon the State dismissing the harassment charge.

Finding in favor of plaintiff, the Appellate Court reversed plaintiff’s conviction and remanded to the trial court for dismissal of the complaint filed by the Sate and consideration of an appropriate amendment of the final restraining order to delete the invalid provision.


Continue Reading Enforceability of Domestic Violence Restraints That Prohibit a Defendant from Attending Any Location Where Plaintiff May Also Be Present

The substantial weight placed on every parents’ entitlement to have their child bear their surname is paramount in the law of New Jersey, and codified by statute. N.J.A.C. 8:2-1.4.

Where both parents cannot agree upon a surname for a child at the time of a child’s birth, both parents have the legal right to provide a surname for the child, with the child’s name being alphabetically hyphenated to reflect the name chosen by both parents. N.J.A.C. 8:2-1.4(a)(2). Deference will only be afforded to the parent with custody of the child in the event the other parent is “unavailable” at the time of the child’s birth. N.J.A.C. 8:2-1.4(a)(1).

But what happens where the “unavailable” parent has been unduly deprived of his right to attend the birth of his child due to the biological mother’s failure to notify the parent of the existence (or birth date) of his child?   This author suggests that where a parent was involuntarily unavailable at the time of his child’s birth as a proximate result of the biological mother’s wrongful actions, said parent must not be deemed “unavailable” for purposes of depriving that parent his right to name his child. Both equity and logic follow this proposition. Had the “unavailable” parent been appropriately advised by the biological mother as to his parental status (or properly notified as to the birth date of the child), he would have had the opportunity to attend his child’s birth and to provide his child with a surname to be hyphenated alphabetically with the surname chosen by the biological mother. Surely, the intent of the law was not to reward a mother’s deception by granting her sole authority to provide a surname for the child, while simultaneously punishing the unknowingly absent parent by denying him his legal right to have his child bear his name. 


Continue Reading Mom v. Dad: Who determines a child's last name?

Generally speaking, New Jersey statutes and court rules cloak settlement negotiations with secrecy (legally, called a “privilege”) such that what goes on in those proceedings are not evidential, that is, they are “privileged” from being disclosed to a court.

Somewhat of an exception arises in cases in which the negotiations produce an oral agreement. Let’s first deal with this in the context of settlement negotiations not in the mediation context. Usually, it happens this way: the parties are participating in a “4-way” settlement session in which each party is present (either physically or by phone), as is their attorneys. Through the negotiations, agreement is reached as to the basic provisions such that both parties walk away from the session thinking that they have reached a binding agreement, albeit oral, subject only to “finalizing” it by reducing it to writing (and filling in details that would normally expand the basic terms during the drafting process), approved by the attorneys, and signed by the parties. One of the parties then changes his or her mind before any written agreement is signed. The other party says “wait a minute, you can’t do that, we had an oral agreement. You can’t change your mind.” The party backing off of the arrangement says “but we did not have a full agreement. There were many terms and details still to be negotiated.”


Continue Reading Are Mediation Proceedings Really Sacred and Secret?

 Virtually every interspousal agreement contains a modification clause whereby the parties set forth procedures for subsequent enforceable modification. Many are constructed as follows:

No modification or waiver of any of the terms of this Agreement shall be valid unless: (1) in writing and executed by the party to be charged; or (2) ordered by a court of competent jurisdiction upon appropriate notice and upon an appropriate showing of changed circumstances as and if allowed under New Jersey law. The failure of either party to insist upon strict performance of any of the provisions of this Agreement shall not be deemed a waiver of any subsequent breach or default of any provision contained in this Agreement.

Note that there are two ways under this clause in which an agreement may be modified: (1) a subsequent writing; or (2) ordered by a court. As to the second, a court, generally, has the inherent power to modify support provisions of an agreement. Where an agreement restricts this power (such as would be the case in an agreement which contains a “non-modifiable” alimony obligation), the restriction will be upheld as long as it does not violate public policy.

However, for the purposes of this article, it is the first – modification by writing – as to which this article is addressed. Let’s take a look at the elements of the writing methodology:

(a)         A writing; and

(b)         Executed by the party to be charged.


Continue Reading Modification of Support Clause: Not Just Simple Boilerplate

 Previous blogs on this site have dealt with arbitration of various aspects of matrimonial disputes. N.H. v. H.H. is another in the developing law of arbitration of family law issues.   This article will deal with the subject of arbitration in the context of children issues, as the financial issues raised on appeal are less timely and more routine (as the law is well-developed in this area) as the issues relating to the children.

By way of background, the parties’ agreement in this case provided that they would be bound by the recommendations of an appointed psychologist who had been retained by them to conduct a custody evaluation and to render written report. Their agreement articulated that they desired this procedure in order to avoid “ . . . lengthy, protracted and divisive litigation over custody and parenting time issues . . .” In such posture, they agreed “. . . to be bound and to abide by the recommendations set forth in [the psychologist’s] report and to implement said recommendations immediately upon receipt of [the] report.”

The foregoing agreement came about in the context of the alternative dispute resolution method known as mediation in which the parties had first engaged the services of an extraordinarily well-respected former judge who had extensive experience in both the Family Part and the Appellate Division in reconciliation, but then switched his role to one of mediator.

After his investigation, the psychologist rendered a ninety-three page evaluation. In viewing the report, the Appellate Division went on for pages to describe in excruciating detail the methodology employed by the psychologist. The parties, the mediator, and the psychologist thereafter met to discuss the report. During that meeting, additional events concerning the issue of the wife’s consumption of alcohol in front of the children came to light. Thereafter, the psychologist supplemented his report in which he opined that the wife was in need of inpatient treatment, and recommended supervised parenting time with the children.

In response, the wife sought a judicial determination whereby the court would adopt the psychologist’s initial report, but reject the supplemental report. That application was denied by the court, effectively leaving both reports intact. Thereafter, the husband requested a determination that the agreement was enforceable and sought economic relief, and the wife cross-moved for various forms of relief including setting aside the agreement. Upon consideration, the court denied her application relative to the economic aspects of the agreement, but granted her request to set aside the custody and parenting provisions.


Continue Reading Arbitration of Children Issues

 The most timely and important issue in the recent Appellate Division case of N.H. v. H.H. dealt with the rapidly developing law of the alternative process of arbitration in the family law context, and in that case, particularly as that process relates to children issues. That is the subject of a companion article on this blog.

 Another issue of note to litigants raised by this case relate to claims of litigants as to lack of impartiality (bias and/or prejudice) of a decision-maker, whether the title be a judge, an expert rendering a report, a mediator or an arbitrator.

In this case, the Wife argued that the mediator’s prior role in the parties’ attempt at reconciliation “perverted” his ability to act as an impartial mediator, particularly due to his acquaintance with the Husband (an attorney). The reviewing court found nothing in the record to substantiate such a claim. In so finding, Judge Harris said that “. . . illusory or metaphysical doubts about the performance of a mediator’s services will not suffice to engender an erosion of confidence in the product of such process”

The significance of this aspect of the case encompasses legal resolutions far beyond that limited to the process of mediation. Many times a litigant will so totally disagree with a judge’s determination that he or she will characterize the judge’s attitude as being biased or prejudiced. During a proceeding, the process of addressing these issues is known as disqualification, and is governed by Rule 1:12-1(f) of the New Jersey Rules of Court. It provides (among other things) that a judge should disqualify himself or herself when there is any “. . . reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so.”    Cannon 3 of the Code of Judicial Conduct provides for disqualification for “personal bias or prejudice . . .”


Continue Reading Disqualification of a Decision-Maker

          Matrimonial Arbitration is a form of alternate dispute resolution (ADR). ADR seeks to resolve disputes utilizing a facilitator or tribunal who is not a judge. Sometimes, cases are submitted to ADR without a court action even being filed, in which case, it operates outside of the system and wholly on its own. When the parties resort to ADR during the pendency of the case, while the courts have some control and responsibilities, the process itself takes place in an ancillary fashion to the system.

                Let’s define terms.

1.            On one end of the spectrum of ADR is mediation, that is, where a third-party attempts to facilitate an agreement between the parties. Nothing is binding if and until an agreement is reached and (usually) reduced to writing and signed by the parties.

2.            On the other end of the spectrum is binding arbitration. This is a process of dispute resolution involving a “rent-a-judge” who is appointed by the parties to hear the matter (much as if the parties were in court) and render a binding determination (as distinguished from a decision by a trial court). While the parties can tailor the choice of the arbitrator to the circumstances of the case, only in limited circumstances is an action of the arbitrator appealable.

3.            In the center between the two is non-binding arbitration, that is, where a third-party makes a recommendation for settlement which is not binding. The parties can accept it; reject it; or use it as a basis for further negotiation. In New Jersey, this is essentially the function of Early Settlement Programs established in each county to aid in the settlement of matrimonial actions.

                Note, then, the differences:

                         Type of ADR                               Type of Result

                         Mediation                                            Negotiation

                         Non-binding arbitration                 Recommendation

                         Binding arbitration                          Determination

          


Continue Reading Matrimonial Arbitration is on Its Way

A recent matrimonial case points out the difficulties of when one party to a divorce is the beneficiary of one or more trusts.

In Tannen v Tannen, a recent published case from the Appellate Division, the wife was the beneficiary of a trust established by her parents. She was the sole beneficiary and was also one of the trustees along with her parents. The standard for distributions, by the terms of the trust, was for the best interests of the wife’s “health, support, maintenance, education and general welfare.” The trust was of the “discretionary” type, that is, under the terms thereof, the trustees had “sole discretion” over distributions of both income and principal, and they should make their determinations after considerations of the wife’s other financial resources, but “without regard to the duty of any person to support” her. The trust also included a “spendthrift” provision which prohibited the wife, as beneficiary, from assigning, selling, encumbering, or in other ways “alienating” income or principal distribution without the written consent of the trustees. At the time of trial, the corpus of the trust included cash and securities, investment real estate, the home in which the parties and the children lived. The trust paid for the property taxes on the home, half of the cost of a housekeeper, and various capital improvements. The trust also paid for the children’s private school tuition, but on at least one occasion, the wife’s father refused her request for distribution for a vacation trip. Without there being delineation in the body of the opinion, it nonetheless appears that income generated by the trust may have significantly exceeded these disbursements on an annual basis.

At the trial judge’s direction, the trust was named as a party to the litigation and participated at trial.


Continue Reading To Trust or Not

 An opinion recently rendered by the Appellate Division points out the necessity of submitting proper paperwork on motions, particularly post-judgment motions. The opinion in Palombi v. Palombi arises in the context of the denial by the motion judge to grant oral argument on motions. Oral argument is generally favored in New Jersey because by providing a platform in addition to the submitted papers with which a party may fully and completely present his or her case, it gives the court an opportunity to better flush out the issues and articulate the positions of the parties. Typically at oral argument, stipulations can be reached as to certain facts or various issues, thus leaving the court with a more focused understanding of the more important issues to be decided.

Some history of oral argument of motions is in order. In long years past, all motions in New Jersey were argued. Rarely was a motion decided in any other way, i.e., on the papers, without oral argument of counsel. However, as the court system became busier, many judges routinely denied requests for oral argument. The tension between the courts and lawyers caused by lawyers’ desires for oral argument and the courts’ desires for more expeditious methods of resolutions of issues was thought to be resolved when the rules were amended years ago to provide that in exercising discretion as to whether or not to grant oral argument, ordinarilysubstantive and non-routine discovery motions should be orally argued, and calendar and routine discovery motions should not.             


Continue Reading WHAT! NO ORAL ARGUMENT ON MOTIONS?