The word “harassment” is one of those terms I hear all the time as a family law attorney.  I have had complaints from clients that their spouse made a mess of the house just to “harass” them.  Or, I have had adversaries who intentionally misconstrue every single dispute between our clients as “harassment.”  It is just one of those hot-button words that everyone likes to use so much, that there are times when I wonder whether it has lost all meaning with judges and other family lawyers.

Merriam-Webster defines the word “harassment” as follows:

  1.  a: Exhaust; fatigue; b: 1) to annoy persistently; 2) to create an unpleasant or hostile situation for especially by uninvited and unwelcome verbal or physical conduct.
  2. to worry and impede by repeated raids.

And maybe making a mess around the house in order to drive your wife crazy or picking fights about what to feed the children, who last filled the car up with gas, or who is responsible for paying the nanny this week is harassment as Merriam-Webster defines it.

But when we start bandying about this word to one another before the Court and in the context of family law litigation, there is a legal definition that applies and that we should all be mindful of before labeling what is simply domestic contretemps as legally actionable harassment.

A person commits the criminal act of Harassment when:

[. . .] with purpose to harass another, he:

a.  Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b.  Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c.  Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

N.J.S.A. 2C:33-4.

Thus, to be legally actionable, the “harassment” must meet the above criteria. In the recent matter of State v. Burkert, the New Jersey Supreme Court addressed subpart (c) of this definition of harassment. The Court in Burkert found that – where the alleged harassment is based on purely expressive activity – a liberal reading of subpart (c) may run afoul of the First Amendment right to freedom of speech, which guarantees protection of speech even if it is offensive in nature.

In Burkert, the “purely expressive activity” had to do with the Defendant super-imposing some very, uh, colorful, language on a photograph of his co-worker’s wife and circulating it at work.  There was no question this act was committed “with purpose to alarm or seriously annoy” Burkert’s co-worker.  At the same time, to find Burkert guilty of harassment for engaging in this speech would run afoul of his First Amendment Protections.  No matter how offensive speech may be, it is generally protected barring a risk to one’s reasonable expectation of privacy or safety.

In order to reconcile First Amendment Protections with subpart (c) of the statute, then, the Court held the following:

Therefore, for constitutional reasons, we will construe the terms ‘any other course of alarming conduct’ and ‘acts with purpose to alarm or seriously annoy’ as repeated communications directed at a person that reasonably put that person in fear for his safety or security or that intolerably interfere with that person’s reasonable expectation of privacy.

While State v. Burkert is a criminal case, it is important for all family law practitioners and any individual considering obtaining a domestic violence restraining order based on harassment to take heed of Burkert.  In cases where a restraining order is sought based on allegations of harassment, the plaintiff must prove that harassment has occurred as defined by the above statute.  Therefore, the Court’s narrow construing of subpart (a) of the statute is critically important to those seeking the protections of a domestic violence restraining order based on harassment.

Practically speaking, then, what does this ruling change?  Well, it ensures that speech alone cannot be the basis of a harassment crime or of a domestic violence alone.  For example, if your spouse called you by an expletive instead of by your name 100 times in a 48 hour period, it might fit the Merriam-Webster definition of harassment, but it won’t fit the new definition of harassment under subpart (c), unless combined with harassing conduct and / or speech that reasonably makes you fearful for your life, or intolerably interferes with your reasonable expectation of privacy.


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.

For many divorce attorneys, the busy season starts after the first of the year. For the last several 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. Before writing this article for the first time, out of curiosity, I typed “New Years Resolution Divorce” into Google and got 540,000 results in .29 seconds. There are even more results when you do the same search now. While not all of the search results are 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. In some recent years, 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.

As noted in my blog post from last week, the reforms to the tax code may be the impetus for people on the fence to divorce in 2018 to take advantage of the last year of the deductibility of alimony.

Whatever the reason, we await those who see 2018 as a chance for happiness or a fresh start. Happy New Year?!?!

For me, my resolution will be to blog more in 2018.


Eric S. Solotoff, Partner, Fox Rothschild LLPEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or esolotoff@foxrothschild.com.

Since the first go round of the proposed massive revisions to the tax code were announced several weeks ago, matrimonial lawyers, litigants, accountants, etc. have been in a veritable tizzy over the prospect that one of the modifications was to eliminate the deductibility of alimony payments by the payer and the includability of the payments by the recipient as income, for all agreements or judgments after December 31, 2017.  The angst was with good cause because that provision of the tax code allowed the payer to pay more alimony to the recipient because he did not have to pay taxes on the income used to pay alimony, therefore, creating greater net after tax cash flow for him/her.  On the recipient side, because she/he often paid taxes at a lower rate, it made sense all the way around, except maybe to Uncle Sam who was losing the higher tax revenue by the shifting of income from the higher taxed payer to the lower taxed recipient.

When the Senate version of the tax reform bill was announced, this issue was not addressed at all, causing some hope, albeit short lived because the bill that came out of the reconciliation process had the elimination of the deduction, but not at the end of 2017, but rather, the end of 2018.  This was explained yesterday in a blog posted by my partner, Mark Ashton, of our Chester County, Pennsylvania Office, on our Pennsylvania Family Law Blog, entitled Alimony About to Experience an Untimely Death.  The House just voted to pass the tax bill and the Senate is not far behind.

The bottom line is that the new tax laws will provide less to go around for both sides of the equation. Old “rules of thumb” will go out the window.  Child support guidelines will have to be adjusted as they are based upon combined net income.  Because combined net income will be less, especially in places like New Jersey that are hit hard by the new laws eliminating some of the property tax and other deductions, will child support go down too?  Will this lead to a race to the courthouse in 2019 to adjust child support because whether or not you are able to deduct alimony, will tax increases be considered a change of circumstances?

I would think that savvy people who are contemplating divorce might see the change in the law as a catalyst to finally pull the plug on a marriage to take advantage of the tax benefits of alimony in their final year.  People embroiled in an ongoing divorce may finally agree on something, i.e. to get the divorce over with before the end of 2018 for the same reason.  Only time will tell whether the unintended consequence of the so called tax reform will cause 2018 to be the Year of the Divorce. Either way, we are all going to have to get used to this paradigm shift in figuring out what a fair alimony amount should be given the change in the law.


Eric S. Solotoff, Partner, Fox Rothschild LLPEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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With Chanukkah almost behind us and Christmas rapidly approaching, the time for being jolly is unfortunately also a peak time for parental conflict in divorcing and divorced families.  What one would think (hope) would be a relatively simple discussion between adults in an effort to resolve such issues often turns into something far worse.  Court applications often result where judges are called upon to make last minute decisions about where the children should be, who they should be with, and for what amount of time.

With that being said, here are a few things to keep in mind as a parent mired in such a conflict….

“It’s Christmas All Over Again” – Parents should do their best to resolve holiday conflicts amongst themselves, without involving the children.  Unfortunately, all too often the kids are brought into the picture, with one parent telling them how the other parent is a bad person, is at fault for some reason regarding the holidays, and worse.  Parents often believe it is necessary to justify/defend their actions to sway the kids to his or her side, but the impact on them is immeasurable.  Over time, kids who simply want to enjoy what is one of the best times of the year end up dreading its arrival because they know that there will always be some argument between mommy and daddy to tarnish the occasion.

“Wonderful Christmastime” – One way to ensure a merry holiday season is to address parenting time issues well in advance of when the time arrives.  This is not just limited to Chanukkah or Christmas parenting time, but all holiday parenting time.  Oftentimes, these issues are addressed during a divorce matter in a piecemeal or triage fashion, for a variety of reasons that may or may not be within your control.  The result is often less than ideal, and may become yet another dispute to address in the context of an ongoing matter.  Try to reach a resolution in advance, if possible, for the best interests of the kids and, quite frankly, everyone else involved.

“I Saw Mommy Kissing Santa Claus” – If you are considering bringing a significant other to the holiday dinner, it goes without saying that it should not be done in a manner that negatively impacts upon the kids.  More importantly (and obviously), do not do so in violation of a court order that imposes restrictions on your ability to introduce or involve a significant other in the kids’ lives.  Such an order oftentimes issues in the midst of a divorce matter.  The situation can often be very delicate, and should be approached with care.  If a child is in therapy, consider whether to discuss with the therapist how to best bring/introduce a new person to such an occasion.

“Happy Xmas (War is Over)”While John Lennon’s famous holiday song carried heavier political overtones, there is always a way to apply it to a family law blog post.  If you are going to file an application with the court to address holiday parenting time issues, please do not wait until the last minute to do so.  Seeking relief for these issues should not be an ambush.  It should not leave in flux for the kids what is going to happen.  It should be done with notice to the other party so that he or she can properly respond.  Judges have more than enough going on and if he or she sees that you could have brought the application several days, if not weeks prior, oftentimes they will be less than pleased with having to address the situation under such circumstances.

With these tips in mind, hopefully you are able to not only avoid or properly address the sort of holiday parenting time conflict that comes our way year in and year out, but also that your kids will be able to enjoy the season with a sense of calm and peace of mind.

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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.

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Ah, the 80s and MTV when bands still made music videos and we still cared to watch them.  Many of you may remember the video for the INXS song “Mediate” at the back end of the video for “Need You Tonight”, with the band holding a different sign for each word of the song until they all walk away from the camera during the sax solo.  Paying homage to a classic Bob Dylan song, Mediate is really one of the best videos from that time period with memorably cryptic lyrics that strangely came to mind while I was recently completing a weeks-long family law mediation course.

While some of the lyrics make absolutely no sense to this blogger, certain others work when talking about the benefits, harms, highs and lows of the mediation process.  For instance…

  • Mediate – Yes, mediate.  I have written many times about how mediation is not only a beneficial way in which to resolve your case without great expense and acrimony, but it also allows your matter to be privately and confidentially addressed through the use of a “neutral” whose entire role is to settle your case.  Mediation can occur either prior to or after commencing formal litigation, and in the course of litigation is a required part of the process because, ultimately, settling your case is almost always the best option.
  • Alleviate/Liberate – Resolving your case through mediation will not only ideally save you on further time and expense embroiled in your divorce matter, but it will also help alleviate emotional struggles that accompany the process.  Moving on with your life and into the post-divorce stage can only help your heart, mind and overall health (in addition to your financial well-being).
  • Try Not to Hate/Don’t Suffocate on Your Own Hate – So often, parties are blinded by hatred for the other party that it even colors the mediation process and any productivity realized therefrom.  Oftentimes, for worse, even the attorneys involved develop a dislike for the other lawyer or party that impacts negatively upon negotiations.  Going into mediation free of that mindset will aid your case in moving forward to a resolution.
  • Appreciate/Deliberate – Appreciate the mediation process and the mediator’s role in trying to reach a resolution.  So often parties (especially when accompanied by legal counsel), head into mediation with their feet dug as deeply as possible in the sand in an effort to get the other party to simply give in.  Such a strategy oftentimes fails, although one spouse usually believes that he or she will capitulate to the demands of the other simply to get a deal done.
  • Fabricate – A fundamental part of a productive mediation or settlement process is the provision of full and complete disclosure of all financials (income, assets and liabilities).  Concealing, misrepresenting, or lying about what exists can only lead to problems in the future should the other party learn the truth – especially when such disclosures are oftentimes made to the other party or the court under oath in the form of a signed Case Information Statement.
  • Guilt Debate – Oftentimes, the mediation process is colored by one party’s guilt for something he or she may have done.  Whether one spouse engaged in adultery, wrongfully spent down assets, or something worse, negotiations are sensitive to all facts and circumstances present in the parties’ lives.  Each party has to knowingly and voluntarily agree to the terms of settlement, and agreeing to terms that may not otherwise be deemed “fair and equitable” because of something that may have occurred during the marriage can potentially prove to a be a long-term mistake.
  • The Youth Irate – Resolving your case, whether in mediation or otherwise, not only acts to your benefit in allowing you to move on with your life, but also it allows your children to transition to a life without a divorce matter consuming their everyday existence.  No matter how hard parents may try (or not try) to avoid involving the children in the divorce matter, they oftentimes know what is going on, or simply feel the cloud of conflict hanging in the air.  While most parents say that the children are the highest priority in a case, oftentimes their own actions undermine what may be a very genuine sentiment.
  • Atomic Fate – A.K.A., “Trial”.  Not every case can settle in mediation or otherwise.  Sometimes, a case simply needs to go to trial so that a judge can make the final decisions on issues despite knowing very little about your life.  Whether it is a desire to be proven right, a preference for airing dirty laundry, or a fear of agreeing to something that may very well impact your life for decades to come, a resolution may not be possible.

On the heels of my last blog post regarding settlement, and many other posts on this blog about mediation and the settlement process, the above should not only be used as a reminder of a great 80s song, but also about how only you and your spouse can control how a case resolves.  Mediation is a great tool by which to achieve that goal, and hopefully give you What You Need….

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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.

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Amicably settling your divorce matter is almost always better than taking your chances at a trial before a trial judge who knows almost nothing about your life. Not only can settling save you substantial time and expense as compared to continued litigation, but also it provides you with the opportunity to end the case on your terms while removing the risk associated with an uncertain trial decision.

Spiderman in Lego formTo that end, settling also means potentially agreeing to terms that are not necessarily what the law may provide. As Uncle Ben once said to a young Peter Parker, “with great power comes great responsibility.”  It is critical that you are not only entering into your agreement voluntarily, but also that you actually know what you are agreeing to.  Sounds simple enough, but litigation oftentimes follows when disputes as to the terms of an agreement arise.  This was the situation in T.L.H. v. M.H., wherein the parties’ definition of cohabitation as an alimony-modification event was more expansive than that provided by law. Specifically, the subject settlement agreement there provided that alimony would terminate:

[U]pon the death of either party, or the marriage or cohabitation of [plaintiff]. The term “cohabitation[,”] in addition to its meaning as construed by New Jersey courts, shall also incorporate the scenario if [plaintiff] should take up residence with any family members (other than the children of the parties) or friends.

Solidifying the parties’ respective understanding as to the terms of the agreement, it also provided therein:

In arriving at this agreement both [plaintiff] and [defendant] had an opportunity to obtain the assistance of separate legal counsel and to be advised regarding the legal and practical effects of this [a]greement. . . . The parties have read this agreement in its entirety and each of them has entered voluntarily into this agreement. They have consented to and assume all of the covenants herein contained, having read the same and having fully understood them. They both acknowledge that it is a fair, just and reasonable agreement and [is] not the result of any fraud, duress, or undue influence exercised by either party upon the other or by any other person and that there have been no representations, warranties, covenants, or undertaking other than those as set forth herein.

Post-divorce, the wife moved in with her sister after she was forced out of the former marital home due to a sheriff’s sale. The husband, as a result, stopped paying alimony, which caused the wife to file a motion to enforce the agreement. In response, the husband moved to terminate alimony based on the wife’s cohabitation as defined by the parties’ agreement.

While not necessarily relevant to addressing the unambiguous language of the agreement, the husband argued that he negotiated the cohabitation provision because he knew the wife would ultimately move out of the former marital home and in with family. The wife argued that she negotiated a higher level of alimony because she knew her expenses would increase after she left the home. At the core of the wife’s argument was her position that living with someone is different than cohabitation. Specifically, she argued her understanding that cohabitation meant someone else was, at least to a significant extent, “supporting” her.

Relying on the language of the parties’ agreement, and both public policy and case law supporting the reaching and enforcement of private agreements, the trial court enforced the cohabitation provision and terminated alimony.

On appeal, the wife argued that: (1) a plenary hearing should have been held to address a genuine issue of fact regarding the parties’ intent in agreeing upon the cohabitation provision; (2) the trial court improperly failed to addressed existing economic circumstances at the time enforcement was sought. In affirming the trial court, the Appellate Division reiterated public policy favoring settlement and the enforcement of unambiguous language, while noting how a court cannot rewrite an agreement to provide for terms better than that bargained for by the parties. The Court also referenced cohabitation jurisprudence wherein the voluntarily agreed upon language of an agreement as to such issue can be subject to enforcement even when differing from that provided by law (as to what cohabitation is, the impact of cohabitation on alimony, and the like).

In so holding, the Court noted as to the facts at hand:

Here, there were no compelling reasons to depart from the clear, unambiguous, and mutually understood terms of the MSA. The agreement was voluntary, knowing and consensual, and the alimony-termination event upon cohabitation was fair under the circumstances of the case. We agree with the court’s finding that, while residing with her sister does not rise to the level of cohabitation under Konzelman, supra, plaintiff understood that residing with her sister was an event that could trigger termination of alimony under the description of cohabitation specified in her MSA. In our view, the explicit terms in the MSA obviated the need for a plenary hearing. Accordingly, we find no error in the court deciding the cross-motion on the papers.

The takeaway from this case is that while a litigant has great power to settle a case as the preferred approach over litigation, with great power comes great responsibility to know and understand that to which you have agreed.

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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.

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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.

Thankfully, sexual abuse allegations against parents do not often arise in the context of a divorce typical. However, when those scenarios do arise, they bring lawyers, litigants and judges alike in to unchartered territory where they sometimes have to sift through various accounts to get at the truth of the matter.

Twenty years ago, the Appellate Division succinctly described the dilemma Courts often face when dealing with sexual abuse allegations:

This case is an example of a tragic but recurring dilemma in certain family court cases involving allegations of child sexual abuse. On the one hand, there are clearly cases of imagined or even fabricated charges against a parent, especially when raised during the pendency of divorce proceedings. For a parent to stand accused of such an offense is devastating both to that individual, and to the child’s lifelong relationship with the parent. On the other hand, proof of such abuse, especially involving a very young child, is rarely clear, and the potential danger to a child from a reoccurrence, if the suspicions and accusations are well-founded, is enormous.

[P.T. v. M.S., 325 N.J. Super. 193, 198 (App. Div. 1999)].

In a subsequent case several years later, the Appellate Division in Segal v. Lynch, 413 N.J.Super. 171 (App. Div. 2010) even carved out a cause of action wherein one parent can sue the other for money damages on the grounds of parental alienation when one makes false sexual abuse allegations against the other:

[W]e are not blind to scenarios in which one parent intentionally or recklessly imbues a child with such calumnious accounts of the other parent, so wicked in their intent and so destructive in their effect, that the situation necessitates civil redress. For example, a case in which one parent falsely and intentionally accuses the other parent of sexually abusing the child is so despicable on its face and so destructive in its effect on the innocent parent that it cries out for compensation which is not available in the Family Part or even in the criminal courts. The same can be said of cases involving parental abduction, where one parent, unlawfully and without the knowledge or consent of the other parent, removes the child to a foreign jurisdiction with the intent of frustrating any lawful means for returning the kidnapped child to the aggrieved parent. In such cases, sound public policy demands that the aggrieved parent and, by extension the innocent abducted child, be given compensation beyond just reunification. Id. (emphasis added).

The recent published decision of E.S. v. H.A., A-3230-14T2 and A-3256-14T2, speaks to a different kind of scenario involving sexual abuse; one where the allegations have been sustained and the parent-child relationship hangs in the balance.

In E.S. the parties had a long history of contentious litigation, involving various domestic violence claims, motions, and the like. Ultimately, the Division of Child Permanency and Placement (DCPP) became involved with the family when allegations were made of sexual abuse against the father as to the parties’ child, Richard.

After various proceedings by the DCPP, at least some of the sexual abuse allegations against the father were sustained.  Thereafter, the mother moved for a suspension of the father’s parenting time.

Following a hearing, the trial court found, by clear and convincing evident, that the father had sexually abused Richard, granted the mother sole legal and physical custody of Richard and denied the father parenting time.  The resulting order further required the father to “comply with certain requirement prior to making any application for parenting time with his some”, including the following:

a.         Admission of wrongdoing;

b.         A psychosexual evaluation by a professional specializing in same; and

c.         Individual therapy.

The father’s subsequent appeal primarily concerned the above requirement that the be required to make an “admission of wrongdoing” prior to making an application for parenting time.  The father argued that requiring him to do so would violate the right against self-incrimination.

Indeed, the right against self-incrimination, although not protected by the New Jersey constitution, is deeply rooted in our jurisprudence and codified in N.J.S.A. 2A:84A-19, which states that every person in New Jersey “has a right to refuse to disclose in an action…any matter that will incriminate him or expose him to penalty…”

Both the United States Supreme Court and our New Jersey courts have consistently held that the state may not force an individual to choose between his or her Fifth Amendment right and another important interest because such choices are deemed to be inherently coercive. It does not matter whether the particular proceeding is itself a criminal prosecution. Rather, “the Fifth Amendment is violated ‘when a State compels testimony by threatening to inflict potent sanctions unless the constitutional privilege is surrendered.'” State v. P.Z., 152 N.J. 86, 106 (1997).

After a full examination of the case law and surrounding circumstances, the Appellate Division in E.S. reversed the trial court’s decision requiring the father to admit to the sexual abuse allegations prior to making an application for parenting time. Its reasoning was as follows:

Here, the November 2013 and January 2014 orders conditioned any future request by defendant for parenting time upon his admission of “wrongdoing,” which we presume, based on [the expert’s] testimony, means defendant must admit that he sexually abused Richard. Such a requirement compels defendant to waive his privilege against self-incrimination and violates his rights under the Fifth Amendment and our State Constitution.

The Appellate Division further vacated the remaining preconditions that the trial court imposed on the father “prior to any application for parenting time”, reasoning that, “imposition of these other preconditions violated defendant’s right to invoke the equitable powers of the Family Part to modify its order denying him any parenting time.” While the Appellate Division noted that these application may fail absent the father’s efforts to address the issues that the court saw as vital to the reintroduction of parenting time, it made clear that the court should not reach that conclusion in advance of such a request.

Cases involving sexual abuse pose special problems and considerations for our courts.  But this decision makes clear that it is important to note that our judiciary is required to preserve and protect the due process rights of everyone involved in the litigation.

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

In 2014, I authored a post on this blog entitled Stern Revisited – Using the Shareholder Agreement to Determine Value.  I noted then that it seemed that after the Appellate Division’s decision in Brown v. Brown  which changed the landscape by doing away with discounts and essentially ushered in more of a value to the holder construct, that the consideration of an agreement was dead.  Rather, a myopic view of methodologies focused on income seemed to be the norm – disregarding all else.

This was the case even though there was New Jersey Supreme Court case law  (Stern v. Stern and Bowen v. Bowen to be precise ) that suggests the use of a “trustworthy” buy-sell agreement to establish value, noting that in some instances it may appropriately establish a presumptive value of a party’s interest.  Often the issue is what is a “trustworthy” buy-sell agreement?  What makes an agreement trustworthy?  It is updated frequently and routinely used when people enter and exit a business.  In my 2014 post, I blogged about the use of the buy-sell agreement in deciding the value of a medical practice where there had been 32 purchases or sales of interests in the practice in the recent past.  In the case cited in that blog, the Appellate Division noted “We find no error in the judge’s considered decision that the practice’s regularly updated corporate agreements were a better measure of value than plaintiff’s expert’s projection of cash flows through 2020, discounted by a rate chosen on the basis of U.S. Treasury bonds, augmented by selected risk premiums and reduced by an assumed long-term growth rate.”  Simply put, what the doctor would have received if he left the practice was used as the value.  Unlike many valuation calculations, there was no subjectivity to that number.  But this case was an unreported decision which means that it wasn’t precedential and there haven’t been many, if any, reported decision on the issue in some time.

That is, until August of 2017 when the Slutsky case was decided.  In that case, the husband was a partner at a major New Jersey law firm.  Though his income was substantial, he was not a rainmaker, and thus, worked on business generated by other attorneys at his firm.  In valuing the husband’s interest in the firm, the big issue was whether there was goodwill to be added to the amount that the husband would have been due under the firm’s partnership agreement.  The wife’s expert added goodwill; the husband’s expert did not.  The trial judge sided with the wife’s expert finding it “”incredible” the firm had no goodwill value. ”  The Appellate Division disagreed and reversed.

The Court noted that:

As Dugan instructs, the start of the examination of goodwill considers whether excess earnings exist. Dugan, supra, 92 N.J. at 439-40. This was a highly contested issue on which the experts used slightly different resources and offered greatly disparate opinions. Factual findings regarding this pivotal question were not provided.

Moreover, the court returned to Stern and the husband’s argument in that case regarding  “the propriety of considering his earning capacity as being a separately identified and distinct item of property” and pointed out the passage in Stern that held as follows:

[A] person’s earning capacity, even where its development has been aided and enhanced by the other spouse, as is here the case, should not be recognized as a separate, particular item of property within the meaning of N.J.S.A. 2A:34-23. Potential earning capacity is doubtless a factor to be considered by a trial judge in determining what distribution will be “equitable” and it is even more obviously relevant upon the issue of alimony. But it should not be deemed property as such within the meaning of the statute.

Of note, in this case the Appellate Division framed the real issue as follows:

Here, a nuanced valuation methodology is required because defendant is an equity partner in a large firm, who generally is not responsible for originations, and who is bound by the firm policies and a shareholder agreement.

In this case, the Appellate Division found that the formula in the firm’s agreement actually captured good will.  In addition, the court noted:

We believe the trial judge misunderstood Hoberman’s conclusion, as suggesting goodwill did not exist for the firm. Actually, Hoberman’s opinion asserted the TCA of each equity partner accounted for any goodwill. Further, plaintiff, who was not an originator but a worker in a highly specialized legal area, was actually paid what a similarly skilled lawyer would be paid. Thus, defendant’s compensation matched his earning capacity, nothing more. This view considered whether defendant’s “future earning capacity has been enhanced because reputation leads to probable future patronage from existing and potential clients” and concluded it did not. Accordingly, there was no additional component of goodwill. Id. at 433.

In this matter, any analysis of goodwill must evaluate the firm’s shareholder’s agreement to determine whether it is an appropriate measure of the total firm value, including goodwill. That formula computes an exiting partner’s interest, calculated as a portion of the firm’s excess earnings. See Levy, supra, 164 N.J. Super. at 534. The Court must discern the objectiveness and accuracy of the formula and calculations. When “it is established that the books of the firm are well kept and that the value of partners’ interests are in fact periodically and carefully reviewed, then the presumption to which we have referred should be subject to effective attack only upon the submission of clear and convincing proofs.” Stern, supra, 66 N.J. at 347.

The take away here is that Stern lives now for the same reasons that that it was originally decided.  If a regularly updated and followed agreement was disregarded, the titled spouse would be stuck getting only what the agreement allows, which the other spouse could wind up with a lot more, or less, if valuation methodologies with subjective components are used.  On the other hand, say that there are two similarly situated law firm partners with a similar book of business and making similar money, but one worked at a large firm with a regularly updated and followed shareholders agreement and the other at a smaller firm without a formal agreement, it seems like a safe bet that the values of their practices would be extremely different.  One other question to ponder.  Would the result have been different if the husband here was a major rainmaker?  Perhaps that will be addressed in a future case.

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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 Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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