I have written many times over the years regarding parent coordination, both during and after the end of the Supreme Court pilot program.  A parent coordinator is a person, sometimes a mental health professional and sometimes a lawyer, that is appointed to assist parties in high conflict custody disputes.  The description and function of a parenting coordinator under the pilot program were as follows:

A Parenting Coordinator is a qualified neutral person appointed by the court, or agreed to by the parties, to facilitate the resolution of day to day parenting issues that frequently arise within the context of family life when parents are separated. The court may appoint a Parenting Coordinator at any time during a case involving minor children after a parenting plan has been established when the parties cannot resolve these issues on their own.

The Parenting Coordinator’s goal is to aid parties in monitoring the existing parenting plan, reducing misunderstandings, clarifying priorities, exploring possibilities for compromise and developing methods of communication that promote collaboration in parenting. The Parenting Coordinator’s role is to facilitate decision making between the parties or make such recommendations, as may be appropriate, when the parties are unable to do so. One primary goal of the Parenting Coordinator is to empower parents to develop and utilize effective parenting skills so that they can resume the parenting and decision-making role without the need for outside intervention. The Parenting Coordinator should provide guidance and direction to the parties with the primary focus on the best interests of the child by reducing conflict and fostering sound decisions that aid positive child development.

The goals are laudatory and make sense.  That said, they often didn’t work because the intransigent party would not follow the parent coordinator’s recommendations.  In these circumstances, if the court order required the parties to bring parenting issues to a parent coordinator first before coming to court, and one party wasn’t going to follow the recommendation, the result was often a several month delay until something got decided by a court.  Separately, the problem parent, assuming one was worse than the other, would present any issue, every issue to the parent coordinator, using the process as a way to abuse the other parent.  This sometimes could be dealt with with a fee shifting provision, but again, if the party didn’t comply with the fee shifting provision, then back to court the parties went anyway.

Over the last several years, I have seen parenting coordination Orders that provide that the parties must follow the parent coordinator’s recommendation, unless and until it was modified by the Court and moreover, it put the onus on the objecting party to bring the matter to court (but comply pending the decision).  Note that court’s cannot totally abdicate decision making to a PC and this is not a total abdication because there is a right to object to the Court.

That seemed like progress except when the parent coordinator refuses to enforce their recommendations.  In a recent matter, both the Court’s Order of appointment and the parenting coordinator’s own retainer agreement provided language that his recommendations were binding until modified by a court.  Except that the father would never accept or follow the recommendations, and also not go to court to set them aside)and the PC would often relent.  I have heard of another recent matter with a similar mandate that was in a Consent Order requiring that the parties follow the PC’s recommendations or file a motion within a certain number of days from the recommendation if they objected.  The objecting parent will not comply and the PC is not putting her foot down.  Not only does this empower the offending parent, but it further delays resolution and continues to victimize the parent that is in the right.

Often, the explanation is that the PC wants the parties ultimately to come to a consensus.  In most cases, however, if they were able to do that, they wouldn’t need a PC in the first place.  More importantly, the role is not mediator or therapist.  The goal is to not be even handed or Solomonic where you have one parent that is the offender the majority of the time.  If the PC cannot make the tough recommendation and stand behind it, their appointment is pointless and a waste of the parties’ resources.  Moreover, it allows the offending party to continue to use the process to harass and abuse the other party.


 Eric 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.


Grandparent visitation is a unique area of family law that presents interesting case law every few years and seems to be growing with time and modern families.  We have blogged about this issue, including the requirement to show harm to the child if the grandparent doesn’t have visitation and procedure for grandparent visitation applications, as well as impact of Consent Orders between parents and grandparents for visitation with the child.   The Appellate Division just released an unpublished (non-precedential) decision in a consolidated appeal that touches upon both the harm requirement for cases reviewed under the Grandparent Visitation Act, as well as issues with consent agreements for grandparent visitation: L.S. and L.V. v. F.S. and S.P.M./L.S. and L.V. v. F.S. and A.K.

The case answered two unique questions:

  1. Whether a grandparent visitation claim can be dismissed without a plenary hearing.
    • Yes. “Where a grandparent cannot make a threshold showing of harm, the complaint should be dismissed.”
  2. Whether a change in circumstances is required in order to modify the agreement between one parent and the grandparents when the agreement is not incorporated into an enforceable judgment or Court Order.
    • No. “…[G]randparent visitation agreements should be subject to a change of circumstances standard only if the agreement is incorporated  into an order or judgment and an application to the court is made for “modification of a consent order governing grandparent visitation”‘.

While those answers may seem simple, the facts of this case are nothing short of intriguing.  The plaintiffs in both matters are paternal grandma and great grandma.  The defendants in both matters are dad (F.S.) and former wife (S.P.M.), and dad (F.S.) and current wife (A.K.).  In both matters, plaintiffs sought parenting time with F.S.’ children/their grand and great grandchildren (1 child in the S.P.M. matter and 3 children in the A.K. matter, 1 of whom is A.K.’s child from another relationship who F.S. was adopting).

F.S. and S.P.M.

F.S. and S.P.M. had their daughter, Ellen, at young ages as she was born in 2011 and S.P.M. turned 18 in 2013.  Plaintiffs claim that Ellen, F.S. and S.P.M. lived with plaintiffs until they moved to a home near great grandma’s house.  However, S.P.M. claims she only lived with plaintiffs on the weekends.  Regardless, it appears undisputed that Plaintiffs brought F.S. and S.P.M. into the family business and paid the majority of their expenses.  Plaintiffs also claim that when the F.S. and S.P.M. moved into their own home, plaintiffs provided daycare services, the family had most dinners in plaintiffs’ home and Ellen spent a weekly overnight in plaintiffs’ home.  Eventually, F.S. and S.P.M. separated and got divorced.  F.S. had supervised parenting time with Ellen in plaintiffs’ home with great grandma as the selected supervisor and S.P.M. also present.  S.P.M. moved in with F.S.’ aunt and uncle and engaged in a relationship with the uncle (i.e.: grandma’s brother-in-law).  F.S. was abusing drugs (which was blamed on this relationship).  In any event, S.P.M. remained close with F.S.’ family and Ellen visited with grandma at least 3-4 days per week and they had daily telephone contact.  F.S.’ parenting time with Ellen continued at plaintiffs’ home until she was three years old.

F.S. and A.K.

Meanwhile, F.S. started a relationship with A.K.  and they lived together in plaintiffs’ home with A.K.’s child from a prior relationship.  They moved out after the birth of their first child together.  When F.S. had parenting time with Ellen, A.K. and their child, as well as A.K.’s child from another relationship, would all have dinner together with plaintiffs and the children spent overnights there. Plaintiffs continued to provide financial support to F.S. and the children.

Breakdown with Plaintiffs

It seems like every party has a different reason for the breakdown between Plaintiffs and each Defendant; however, they all agree the a significant breakdown occurred.  Plaintiffs claim that problems started in 2016, which they blame on F.S. and A.K. extorting money from plaintiffs in order to have visitation, leading to over a year of grandma not having a meaningful relationship with her grandchildren.  In her cross motion, S.P.M. claimed that problems began before then and were primarily related to plaintiffs fueling disagreements between F.S. and S.P.M., instigating child welfare complaints against S.P.M. (that did not result in any findings against S.P.M.) and exposing Ellen to screaming arguments between F.S. and plaintiffs.  At oral argument, F.S. blamed the period of no contact on an argument between F.S. and plaintiffs that then resulted in him being fired from the family business and in a homeless shelter.S.P.M. also explained that once F.S. was estranged from plaintiffs, he and S.P.M. successfully co-parented and Ellen improved in school and in her personal life.  In the year without contact, Ellen spent parenting time with F.S. on weekends and weekdays without incident.  A.K. claimed that during the year of no visitation, grandma refused to visit Ellen in their home even though other family members visited, and that the children were experiencing “peacefulness” during this no contact period.

Grandparent Visitation Agreement

Toward the end of the no contact year, plaintiffs and F.S. entered into an agreement for visitation with the children.  Neither S.P.M. nor A.K. signed the agreement or even knew about the agreement before it was signed.  F.S. thought S.P.M. and A.K. would object to the agreement had he presented it.  The agreement  did not refer to the pending divorce between A. K. and F.S., under which parenting time orders had been entered. The agreement was never entered into an enforceable Court Order or judgment.  Notwithstanding, the agreement had clear terms for regular and summer visitation with plaintiffs, exchange locations, make-up time, anti-alienation clauses and language acknowledging the children’s significant relationship with plaintiffs.

F.S. did not follow the agreement, which plaintiffs claimed was because he still tried to extort them for money in order for them to have visitation under the agreement. F.S. claims he did not cooperate because plaintiffs violated S.P.M.’s wishes, such as posting pictures of the children on social media and letting them in a pool.

Notably, at oral argument, F.S. claimed he did not participate in the drafting or understand that overnights were part of the agreement. Both mothers were opposed to plaintiffs having any contact with their children.

Close up of wooden gavel isolated on white backgroundTrial Court Decision

The trial court heard the matter in November 2017 and dismissed plaintiffs action without a plenary hearing after hearing oral argument.  Plaintiffs and S.P.M. had counsel arguing on their behalf and the court took testimony from F.S. and A.K. who did not have counsel, as well as from S.P.M. regarding lack of harm to the children by not having contact with plaintiffs.  A.K. also acknowledged that she knew about the agreement, but not until after it was signed and she objected to plaintiffs having any contact with the children.

The trial court’s decision considered both enforcement of the agreement and the grandparent visitation rights statute.

Regarding the agreement, the trial court  distinguished this matter from Slawinski v. Nicholas, noted in the above prior blog, involving a Consent Order for grandparent visitation.  However, the agreement here was merely a private agreement and it was not signed by both biological parents.  The trial court further noted that the biological mothers who object to the visitation are fit parents.  The mothers also believe that the relationship between the children’s parents would be impacted by the grandparents having visitation.  F.S. is also a fit parent and also objects to the time.

Regarding the act, plaintiffs did not meet their burden to prove by a preponderance of the evidence that the children would be exposed to harm without the grandparent visitation, despite the trial court’s acknowledgment of a close relationship between plaintiffs and the children.  This step is required before a court turns to the statutory factors, as explained in the above prior blogs. The trial court noted that two of the four children were infants when the agreement was signed and, thus, could not have had the “profound, substantial and enduring relationships” with plaintiffs as they had claimed; the plaintiffs were never full-time caregivers; and, the mothers were not parties to the agreement.  The trial court went on to state that even if harm was demonstrated, visitation would not be in the children’s best interests because the mothers were fit parents and it would have negatively impacted the parents’ relationship with each other.

Appellate Decision

The Appellate Division affirmed the trial court’s holding.  The Court acknowledged the “value of a child’s relationship with his or her grandparent”.  However, superior to that value is “…the principle that parents have a fundamental right ‘to make decisions regarding the care and custody of their children'”, citing to the polestar case of Moriarty v. Bradt, also discussed in the above prior blogs.  Pursuant to Moriarty, the grandparents must prove by a preponderance of the evidence that visitation is necessary to perform harm to the child, which the grandparents did not accomplish here.  As the Court explained while relying on case law, the statutory factors are only reviewed after this burden to prove harm is met. Thus, the court held that “Where a grandparent cannot make a threshold showing of harm, the complaint should be dismissed“, which is what happened in this matter.  They further stated that “…no evidence [was] presented by plaintiffs that established the requisite showing of particular ‘concrete harm’ to any of the children that would support a finding that plaintiffs overcame the presumption against interference with the parents’ fundamental rights” – focusing on the fact that all parents opposed the visitation and are themselves fit parents, the grandparents were never permanent caretakers of the children and they only speak of general suffering in the event of lost contact.

Regarding the agreement, the court found that it is not enforceable/doesn’t require a change in circumstances to modify.

We concluded in Slawinski that grandparent visitation agreements should be subject to a change of circumstances standard only if the agreement is incorporated into an order or judgment and an application to the court is made for “modification of a consent order governing grandparent visitation

Absent a court order, a parent who agrees orally or in writing to allow grandparent visitation is free to withdraw from that agreement unless the significant harm required by the Act is established.”


After all of that, it’s important to remember the tough burden of proof in grandparent visitation cases before running into court.  Also, if entering into an agreement for grandparent visitation, make sure it’s filed with the Court and both biological fit parents are parties if you foresee any enforcement issues (and even if you don’t).

Lindsay A. Heller is an associate in the firm’s Family Law practice, based in its Morristown, NJ office. You can reach Lindsay at 973.548.3318 or lheller@foxrothschild.com.

Lindsay A. Heller, Associate, Fox Rothschild LLP

Some people think there are no winners in divorce court. While I like to have a more optimistic outlook, it goes without saying that family law cases sometimes yield unhappy litigants.   With emotions running high and issues so personal in nature, it is common to have one, or both, parties unhappy with a decision of the court. So what do you do when you’re on the receiving end of an unfavorable court order? A recent Appellate Division case reminds us that, when looking for a second bite at the apple, procedural errors made by the lower court can be just as important as substantive ones.

In the recent unpublished decision of J.H. v. K.H., the defendant was dissatisfied with a trial court’s order, so he filed a motion to vacate that order and, when that was unsuccessful, he filed an appeal. This case involved post-divorce issues related to interpretation of the parties’ property settlement agreement (PSA) and issues regarding child support.

At the time of divorce in 2016, the parties executed a two-page PSA, without the assistance of attorneys. It provided, in part, that defendant would pay child support to plaintiff and he would give plaintiff the former marital home “free and clear” by September 2021. When defendant failed to meet his child support obligations, plaintiff filed a motion in 2017 to enforce her rights under the agreement, as defendant’s failure to pay support allegedly resulted in her inability to pay the mortgage on the former marital home.

Defendant contended that he was never served with a copy of the motion papers and only learned of the pending motion by calling probation to inquire about his support arrears. When he appeared in court on the return date of the motion, he was “advised to leave” by court staff because he had filed no papers and the matter was being decided as unopposed.

The resulting order found defendant in violation of litigant’s rights for failure to pay child support and “regarding” the former marital home. The statement of reasons provided with that order cited to the PSA to provide that “defendant shall satisfy his child support obligations” and “bring his mortgage payments current,” with no reference made whatsoever as to the proper service of motion papers on defendant or his ability to meaningfully respond.

When defendant filed a motion to vacate that order, he certified that he never received the motion papers, while plaintiff certified to the contrary. Defendant further requested a finding (or alternatively, a plenary hearing) as to interpretation of the two-page PSA, as he contended it was the parties’ intention to afford plaintiff a five year window to refinance the former marital home and that he was not responsible for mortgage payments in the interim. The trial court denied oral argument on this motion and summarily denied defendant’s request, in part finding that defendant was obligated to “give” plaintiff the property by September 2021 pursuant to the PSA and that he shall therefore “deliver the property” to her by that date. The trial court further found this provision of the PSA to be “unambiguous.”

On appeal, the Appellate Division found several procedural errors below:

Deficient Statement of Reasons: The trial court erred by failing to make requisite findings pursuant to R. 1:7-4(a). The appellate court held that meaningful appellate review is inhibited unless the judge who sat below sets forth the reasons for his or her opinion. The appellate court determined that the trial judge made insufficient findings and conclusions of law. The statement of reasons issued with the first trial court order was deemed conclusory in nature. The court found this to be especially problematic where the motion was decided on the papers.

Failure to Grant Oral Argument: The trial court erred in denying oral argument on the motion pursuant to R. 5:5-4(a).  The appellate court found that there is a strong presumption in favoring argument of motions other than calendar and routine discovery matters. This error was particularly egregious considering the conflicting certifications of the parties filed in connection with the motion to vacate.

Service of Process Issues: Though not expressly stated in the decision, the appellate court seemed troubled by the lack of probing inquiry made by the trial court into the allegedly deficient service of process of the original motion on defendant. Further, the appellate court chastised the lower court for not curing this procedural deficiency by affording defendant the opportunity to present his “potential, meritorious defenses” in the first motion.  In theory, this could have been accomplished either by granting oral argument or permitting an out of time submission.

Relying on these procedural issues, in part, the Appellate Division reversed the trial court’s determinations and remanded for a plenary hearing regarding the parties’ intention as to their PSA.

While in this case, the appellate court found both procedural and substantive issues with the lower court’s decision, it shows how fatal procedural errors can be, regardless of substance. If you are dissatisfied with a court ruling, in addition to analyzing the merits of the ruling, don’t forget to look at how the court came to that decision, as a procedural error may be the key to undoing the  decision the court has made and getting the opportunity to make the court take a second look at your substantive issues.



Katherine A. Nunziata, Associate, Fox Rothschild LLPKatherine A. Nunziata is an associate in the firm’s Family Law practice, based in the Morristown, NJ office. You can reach Katherine at (973-548-3324) or at knunziata@foxrothschild.com.

We often deal with cases in which one or both spouses own a business.  In many of those cases, a spouse received their interest in a business prior to the marriage, either from a family member, or otherwise.  With regard to premarital assets and/or any other assets that a party claims is exempt, that party must prove that the asset is truly exempt.  The inquiry doesn’t end there.  If the asset is an active asset, like a business, the other party may share in the increase in value of the business during the marriage.  Typically, the non-titled spouse will share in the increase in value if they can show that they contributed to the increase by make financial or non-financial contributions.

An interesting question that is not often discussed is who bears the burden of establishing what the premarital value actually was.  That question was recently addressed in Fox v. Fox, an unreported (non-precedential) Appellate Division decision released on April 9, 2019.  In Fox, the Appellate Division determined that in that case, the burden was on the business owner to establish the pre-marital value.  Specifically, the Appellate Division stated:

… Sculler explains that the non-owner spouse must show that “there has been an increase in value of the asset during the term of the marriage.” 348 N.J. Super. at 381. Naturally, to establish an asset’s appreciation, its value must be established at both the beginning and the end of the valuation period. Sculler can be read to suggest it was Catherine’s burden to prove EBN’s value in 2004.

We do not think such a rule makes sense in this case. General principles suggest that courts must consider the parties’ “comparative interests” and “relative litigational strengths,” their “access . . . to proof[s],” and the “objectives to be served by the evidence,” when assigning the burden of proof. Romano v. Kimmelman, 96 N.J. 66, 89 (1984). Here, Edward contends EBN had value before marriage. In other words, he asserts part of the asset is immune from equitable distribution. Because the burden to establish an asset’s immunity “rest[s] upon the spouse who asserts it,” Painter, 65 N.J. at 214, we hold that Edward must prove that EBN had value in 2004. As it may have been unclear that he had that burden, it is fair to remand to give him an opportunity to present proof as to EBN’s pre-marital value.

While it is interesting that the Court stated that this should be the process “in this case”, the rationale provided suggested that this should be the rule in every case.  When would the non-titled spouse have better “access …. to proofs” than the owner of the business?  As to the objectives served by the evidence, when would the non-titled spouse’s objective be to show a premarital value.  Put another way, despite the holding in the Sculler case that was discussed in the opinion, it seems that if this logical rationale was to be followed, in most of not all cases where a party is claiming the exemption of the premarital value, it will be their burden to establish the value.

There were a few other interesting points that one can take away from this case.  First, the court reminded us about what non-financial contributions may look like when it stated:

The non-owner spouse can contribute to an asset’s appreciation in a number of ways. For instance, a non-owner spouse can provide the necessary support that allows his or her partner to devote time and energy to a business. Id. at 339 (concluding that a spouse who “took care of the home, worked part – time and raised [their son]” contributed to an asset’s appreciation).

Second, just because a business is not profitable, does not mean that it has no value.  The Court stated, “An unprofitable business may still have a positive fair market value.  For instance, a business can have valuable tangible assets or inventory, as well as intangible assets, such as goodwill and customer lists.”

Third, despite the often espoused notion that businesses are never divided 50-50, in this case, the increase in value of the business was, in fact, equally divided and that decision was affirmed by the Appellate Division.

Fourth, in this case, the husband argued that the value as of the date of separation should have been used as opposed to the value as of the date of Complaint which is the norm.  That notion was roundly rejected by the trial court and the Appellate Division, who noted that argument is just inconsistent with the law.  Rather, the court reminded us again of the exceptions to using date of complaint as the cut-off date when it held:

The Court recognized two exceptions to the Painter rule: first, where the couple physically separated and entered into a written separation agreement, the agreement date governs; second, where the couple separated and actually divided their assets pursuant to an oral agreement, “assets acquired afterwards are not eligible for equitable distribution.”

For the reasons stated above, the Fox case provides many useful reminders regarding the valuation, burden of proof and division of active assets.  It also provides the opportunity to remind people that if they want to immunize a premarital business, they should give serious consideration to entering into a prenuptial agreement.

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.

I have previously written about the custody and parenting time issues that may be presented when a child is moved from state to state within the country.  But what of child support?

In an interesting recent unpublished decision, Flynn v. Flynn, the New Jersey Appellate Division examined the question: in a case where multiple child support orders have been entered in multiple states, which state has jurisdiction over the issue, and which state’s law controls?

The Uniform Interstate Family Support Act (UIFSA)

Because the issue of modification and enforcement of child support requires a level of uniformity and coordination among the fifty states, there is a Uniform act which different states – including New Jersey – have adopted with slightly different modifications or additions depending on the policies of each state.  The purpose of UIFSA is to resolve questions about which state has jurisdiction in the event multiple child support orders are entered over the course of a child’s life in different states, and provides the courts with guidance on which law to apply.Image result for public domain image map of the united states

Jurisdiction Over Child Support Matters

Under New Jersey’s version of UIFSA (N.J.S.A. 2A:4-30), where there are two or more child support orders that have been issued by tribunals in this state OR another state regarding the same obligor and child(ren), and New Jersey has personal jurisdiction over both the obligor and obligee, then the controlling child support order is the one that is issued by the current home state of the child.  For example, in Flynn, the parties were divorced in Pennsylvania.  After the divorce, both of them – together with the children – moved to New Jersey.  New Jersey, then, became the state with jurisdiction to modify and then to enforce the child support obligation.

But Which State’s Law Applies?

Just because a State is conferred jurisdiction (which is merely the authority or power to make a decision about the parties and the issues between them) does not mean that State’s law is the one that applies.  Indeed, New Jersey’s UIFSA statute makes clear that even if it has jurisdiction to modify or enforce a child support order, its courts cannot makes modifications which substantively depart from the laws of the state that issued the Order:

[The] law of the issuing State or foreign country governs:  the nature, extent, amount and duration of current payments under a registered support order.

N.J.S.A. 2A:4-30.171(a)(1).


A tribunal of this State may not modify any aspect of a child support order that may not be modified under the law of the issuing state, including the duration of the obligation of support.

N.J.S.A. 2A:4-30.178(c)

Importantly, the “issuing state” may not be state that ORIGINALLY entered a child support order.  We’ll get to that next.  The “issuing state” is the state that issued the controlling child support.  So, in Flynn, New Jersey was the issuing state.  New Jersey had entered multiple orders over the years regarding child support and had jurisdiction over the issue.  Therefore, New Jersey law applied.

EXCEPT with respect to one very important issue which was the crux of the Flynn case:  duration of the child support obligation.  On this particular issue, New Jersey law says that the law of the state that entered the first child support order must control:

In a proceeding to modify a child support order, the law of the state that is determined to have issued the initial controlling order governs the duration of the obligation of support.  The obligors’ fulfillment of the duty of support established by that order precludes imposition of a further obligation of support by a tribunal of this State.

N.J.S.A. 2A:4-30.178(d) (emphasis added).

In Flynn, the Father sought to apply the law of Pennsylvania to the question of whether his child support obligation should be terminated, or whether he had an obligation to continue to pay child support for his son while in college.  Under Pennsylvania law, his obligation would not have continued; but under New Jersey law, which requires parents to continue to provide support for children while they are in college, he would have been required to continue to pay.  The Court applied Pennsylvania law and terminated his obligation.

And this makes sense.  When parties negotiate the various financial aspects of their agreement – or when the Court decides these issues if a trial takes place – the terms may be dictated in part by how long the support will be paid.  If all the other pieces of the puzzle were based upon this question, then it would be unfair to blindside an obligor by building in additional time to make payment when that was not contemplated at the time the original child support was entered.

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.

A few months ago, I blogged about due process for defendants in domestic violence actions.  We now have another unpublished decision on this topic but with a different due process violation.  In the matter of S.C. v. Z.B., the parties had cross-temporary restraining orders (“TRO”) against each other stemming from the same incident involving an argument and broken plate.

In the TRO procured by S.C./husband, he alleged the predicate act of criminal mischief based on his allegation that Z.B./wife broke the plate during an argument in front of S.C. and their children.  Z.B. later procured a TRO against S.C. for the same incident alleging the predicate acts of criminal mischief and harassment based on her allegation that S.C. shoved her, grabbed the plate from her and broke the plate on the floor.  Each party alleged prior acts of domestic violence against the other.  After a lengthy five-day trial, the trial court entered an FRO against Z.B., based in large part on credibility findings, and denied Z.B.’s request for a final restraining order (“FRO”) against S.C. based on the same findings.  However, and what matters here, is the trial court’s finding that S.C. did not prove the underlying act of criminal mischief.  Rather, the trial court sua sponte (on its own) entered the FRO against Z.B. based upon harassment even though harassment was not alleged in S.C.’s TRO.  Therein lies the due process violation.

The issue here is this: The TRO serves as the complaint placing defendant on notice of the allegations for which he/she has the right to defend against.  This includes underlying acts, facts of the incident and prior domestic violence history.  The trial court is limited to the four corners of the TRO at the FRO trial.  Given that the harassment box was not checked off on S.C.’s TRO, Z.B. was not on notice to prepare a defense against harassment.  In practice, plaintiff’s in domestic violence matters often amend their TRO after the initial entry for a myriad of reasons, including to add other underlying acts, specify the facts of the underlying incident, adding to the history of domestic violence listed, etc.  Keep in mind that a party procuring a TRO is often in a frenzy having just experienced the allegations and called the police.  Also, the TRO is generally obtained without counsel.  Thus, it makes sense that the initial TRO would require amendments.  However, in order to assure due process to the defendant, the FRO hearing is adjourned following the TRO amendment so the defendant has an opportunity to prepare the appropriate defense.

This concept is codified in precedent setting case law as cited by the Appellate Division in S.C. v. Z.B., and is one that we often use in practice when representing either side on the domestic violence action.  As the plaintiff, you do not want to be in the position of S.C. and lose your FRO because you forgot to check a box or an adjournment was not granted when it should have been.  As the defendant, you need to ensure that you have appropriate notice of all allegations to prepare your case.

The takeaway here is simple but extremely important.  If you are the plaintiff, make sure your TRO is thorough and that you allege any relevant underlying acts based upon the facts of the incident.  If you did not have the opportunity to do so when you initially obtained the TRO, then have it amended.  Also, make sure that all of the relevant boxes representing the predicate acts are checked off (e.g. harassment, stalking, assault, battery, criminal mischief, etc.)   If you are the defendant, make sure you request an adjournment if needed to prepare your defense against the initial and future amended TRO.  Either party doing otherwise may be a fatal error as we see in S.C. v. Z.B.

Lindsay A. Heller is an associate in the firm’s Family Law practice, based in its Morristown, NJ office. You can reach Lindsay at 973.548.3318 or lheller@foxrothschild.com.

Lindsay A. Heller, Associate, Fox Rothschild LLP

spring cleaning

Ahhh, April. This month always feels like a fresh start for me. The sun emerges and it starts to truly feel like spring. April also happens to be my birth month, so I can’t help but feel refreshed and energized at the start of this season.

There’s a reason why “spring cleaning” is a thing, and this year, home and office organization are all the rage. If you’ve managed to avoid learning the name Marie Kondo or the phrase “spark joy” in 2019, I commend you. If you have no idea what I’m talking about, I highly recommend the Netflix special about tidying up and decluttering, which has the masses taking spring cleaning to the max this season.

If you’re already on the bandwagon, you have probably come across a big pile of paperwork you’ve “filed” in the corner of a spare room somewhere, dubiously eyeing it and dreading the task of sorting through what you must keep and what can be discarded. If you’ve been through a divorce, you probably have a box or two of old court documents lying around, taking up space and reminding you of a less pleasant time in your life.  You are probably all too eager to toss it entirely (the likelihood of divorce paperwork “sparking joy” is slim!) but unfortunately there are a few things you really need to keep on file. In a perfect world, we would recommend that you keep your entire file, but if that is impossible for you, here are the highlights on the necessities:

  1. Your Judgment of Divorce: This document is the single most important paperwork from your divorce. Your Judgment of Divorce proves that you are legally divorced. It also proves that you are free to remarry! It should have a gold seal on it from the time it was entered. This copy is incredibly important. When transferring assets, applying for refinancing on a loan or even changing your name after divorce, various agencies may ask to see a Gold Seal Copy of your Judgment of Divorce.  And while you can make copies of the judgment of divorce to your heart’s content, don’t give the Gold Seal copy away! If you lose it, you can always obtain a new Gold Seal copy from the Courthouse in the County where you got divorced, but they will charge you a fee. I highly recommend keeping this document in a safe place, like a safe deposit box or fireproof box in your house.
  2. Your Marital Settlement Agreement: For the majority of litigants who dissolve their marriage by way of agreement instead of a trial, you should have a marital settlement agreement, sometimes called a property settlement agreement, which outlines all of the issues in your divorce and how you’ve agreed to resolve them. This agreement probably addresses issues like alimony, divisions of assets and debts, custody, child support, contribution to college costs, filing taxes, and other miscellaneous items. It probably outlines each party’s respective rights and obligations, as some things set forth in your agreement may not happen right away. For example, if you have adolescent children but your agreement outlines how their college expenses will be funded, portions of the agreement may not “kick in” until many years later. You’ll need a copy of your agreement on hand to know what you are contractually obligated to do and when. Speaking of obligations, it should be no surprise that sometimes people don’t always abide by the terms of their agreement.  If you find yourself in a situation where your ex-spouse is not living up to his/her end of the deal, and you need to enforce the agreement in some way (whether it’s filing a motion in court or trying to go to mediation) you’ll absolutely need a copy of your agreement to decipher exactly which terms are not being complied with.
  3. Your Case Information Statements: These are the forms you filled out during your divorce which set forth your income, assets, liabilities, and expenses. This document was critical in litigating and resolving your divorce, but may become relevant again in a post-divorce situation, if you have outstanding issues to address. For example, if you want to file an application to modify your alimony obligation (or need to defend against one) your Case Information Statement will have helpful information about what the financial state of affairs was at the time you got divorced. If you or your ex-spouse is trying to show a change of circumstances, it is helpful to know what those circumstances were at the time so you can see how they’ve changed. If you have a copy of your ex-spouse’s Case Information Statement, you should definitely keep that, too.
  4. All Orders entered in your Case: I like to think of Court Orders as the Cliff’s Notes for a case. While Court Orders don’t tell you everything about the history of a case, they give you a fairly accurate abbreviated summary of what happened and when. If you ever have to recall who filed a motion or when a critical event in your divorce took place, a Court Order is a great first place to look to hone in on a date or an outcome.
  5. Any Transcripts or Recordings that you Ordered: In the context of a post-divorce dispute, these documents may or may not be relevant later on, but they are still worth keeping because, in order to retrieve another copy from the Court, you’ll have to pay a fee. Transcripts can be quite costly, so there’s no point in purchasing the same thing twice if you already have a copy on hand.

I must reiterate that it is important to keep all of your old court records if you have the space, including all of the letters and emails your attorneys may have sent throughout the litigation. While your attorney has an obligation to keep your files for at least seven years, you may need to pay for the copying costs to get those. Depending on the amount of time that has passed, your records may no longer be available. If you are tech savvy and can digitize all of your records, that’s even more so a reason to keep everything.  But if you simply can’t, keep in mind these spring cleaning tips to make sure you have the most important legal documents ready and accessible if you need them.  Happy cleaning!



Katherine A. Nunziata, Associate, Fox Rothschild LLPKatherine A. Nunziata is an associate in the firm’s Family Law practice, based in the Morristown, NJ office. You can reach Katherine at (973-548-3324) or at knunziata@foxrothschild.com.

Anything can happen in court.  Last week, while in the midst of an appearance, I served as de facto wedding photographer.  Although the bride and groom were blissfully unaware of it, their wedding ceremony came as a welcome reprieve from an incredibly heated argument between me and my adversary, back in court just three months after finalizing our clients’ divorce.  It was hard to imagine that the parties – who had not only hired attorneys to argue on their behalf, but were also fighting with one another in the court room directly – had ever stood in the shoes of that bride and groom.

The entire episode served as a reminder that practicing family law is different.  Behind every legal issue is also an emotional thread that drives the parties.  Sometimes, this emotional component takes over and causes a good legal case to go haywire.  Nowhere can things go more wrong than in the courtroom.

Oftentimes, the same judge will be with your case for its entire lifetime.  Judges are people too, and the observation or opinion that one of the parties cannot control him or herself in their courtroom may impact their view of your case and, ultimately, their rulings.  Here is what I tell clients about how to behave in front of the judge, despite the emotional content of their cases:

  1. Don’t overreact.  Judges say things that can be upsetting.  A judge may make an observation that a party does not think is accurate or fair.  Or, the judge may make a decision that one party believes to be wrong or out of line.  Keep it to yourself.  Nobody likes a sore loser.  And by reacting negatively, you may be re-enforcing the judge’s already negative opinion of you.  By contrast, sometimes you’re on the other side of the equation and you are thrilled that your ex is FINALLY being read the riot act – and by a judge, no less.  Well, keep it to yourself.  Nobody likes a show-off, either.  This also applies to any friends or family members you might bring with you for moral support (who should probably wait outside the courtroom, anyway).
  2. When in doubt, act like you’re watching paint dry.  See above.  If you can’t control yourself, tune out.
  3. Dress appropriately.  As a party, you do not need to wear a suit to court.  But remember, again, judges are people too.  Just like everybody else, they are judging your appearance.  Don’t show up in an outfit that shows disrespect to the Court.
  4. Don’t speak unless spoken to.  If you hired an attorney, let the attorney do the talking.  You are paying your attorney to actually represent and speak for you, so let him or her do that.  If you start speaking on your own, you may say something against your own interest, or inadvertently reveal a privileged communication.  Plus, judges hate it!  They want order in their courtroom, and if the parties and the litigants are all arguing with one another, it is a disaster.  If the Judge asks you a question directly, keep it short and sweet.
  5. Don’t fight with your attorney, your ex, or your ex’s attorney.  At least not where the judge can see you.  Sometimes, emotions run high.  You might disagree with something your attorney said.  That is a privileged conversation that you should have with your attorney in private.  Undermining your attorney in front of the judge is not the way to help yourself.  Alternatively, you might be REALLY angry at something your ex or his/her attorney said about you in the courtroom. Let your attorney deal with that at the appropriate time.  And remember, the judge’s staff (his/her secretary, law clerk, court clerk, and officer) are an extension of the judge.  If they see the courthouse equivalent of the Fight of the Century happening – even if its outside of the courtroom itself – they are going to let the judge know about it.


Jessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

When networking or meeting with a potential client, I am often asked: “Why should I hire you?”  Most people think that more experience is always better and, at first blush, that makes sense.  After all, if I were having surgery, I’d certainly want to go under the knife with a credentialed surgeon instead of a novice intern.  However, when it comes to the practice of law, especially family law, there can be a great benefit to using a neophyte attorney with a few years of experience under his or her belt. Here’s why:

  1. We think outside the box. “Maverick” is a synonym of “newcomer.” And do you know what a maverick is? One who takes chances and departs from the accepted course. Some veteran attorneys regale you with their war stories or boast an “I’ve seen it all” attitude. This experience is really valuable, but remember that years of experience does not always mean expertise.  The wrong kind of lawyer may be limited to his or her own ideas about what “kind of case” you have or how it will resolve in the end. Lawyers who are eager to get creative, come up with unique problem solutions and are not limited by their predictions and assumptions are invaluable. There’s also nothing more satisfying than being underestimated by your more experienced, condescending adversary, only to come up with better strategies.
  2. Our contacts are just as important (if not more important) than our mentors’. The big-wigs rub elbows with judges and other esteemed lawyers. They have visible positions on boards and bar associations and their walls are lined with accolades. Younger attorneys have equally valuable contacts, especially in the courthouse, where it really counts.  Many newer attorneys are recent law clerks and have firsthand knowledge of the way judges in their county think and rule.  They are familiar with the secretaries, court staff, and other administrators and know just who to call to answer a question or streamline a process. For several years after law school, our classmates are clerks in the courthouse and act as a valuable resource in practice.  Sometimes it pays more to know the bouncer than the headliner.
  3. We are cost-effective. This one’s obvious, but critical. Lawyers (especially in family law) are routinely paid by the hour for their services. With more experience, comes higher hourly rates. If managing costs is a big concern, selecting an attorney with three years versus twenty years of experience can make a huge difference to your bottom line.  If you expect your case to be relatively straightforward, selecting an attorney with a lower hourly rate may be your best cost-saving strategy.
  4. We are savvy information-seekers. I wanted to write this entire post without using the “m” word, but let’s face it, millennials are really good at technology. A smart millennial knows when to ask for help but also knows where to look. If you suspect your ex of cohabiting and you want to modify your alimony obligation, the conventional first step would be to hire a private investigator. A social media-savvy attorney may get the same answer with a targeted social media search (assuming you ex has lax privacy settings, of course). And when it comes to seeking answers, a good attorney, young or old, knows when to ask for help.  A wise, budding attorney will have a mentor who acts as a sounding board.  Even the most experienced attorneys sometimes need a second opinion, too.
  5. We hear you. Family law is emotionally taxing. Whether you’re negotiating a prenup, arguing over custody, navigating a divorce, or fighting with your ex after the fact, all of these issues can be draining, especially if they are high-conflict. The attorney with many years of practice invariably becomes immune to the emotional rollercoaster.  I’d dare say it’s a necessity to keep up with the practice. And you need a lawyer who can take the emotions out and give you objective counsel about your legal rights. A younger lawyer is trained to do just that, but can also empathize with your situation.  Some days you really need to be “heard”.  All great lawyers, old and young, have mastered this skill.  A newer attorney, who probably has less clients than the decorated expert, likely has more time and emotional bandwidth to do so.

Depending on your situation, it may be logical to go straight to the top. Maybe you have a very complicated case with a lot of moving parts.  Maybe your case has a long history and you need some reputational muscle to bring out the big guns and bring your matter to a close.  In these cases, this is strategically your best choice.  However, I invite you to reconsider your assumption that older is always wiser.  For the right type of case, the newer kid on the block just might be your greatest asset.



Katherine A. Nunziata, Associate, Fox Rothschild LLPKatherine A. Nunziata is an associate in the firm’s Family Law practice, based in the Morristown, NJ office. You can reach Katherine at (973-548-3324) or at knunziata@foxrothschild.com.

In the recent unpublished decision of L.G. v. T.G.. the Appellate Division addresses an issue that we are dealing with more and more – tracking one’s spouse through a hidden GPS on their car.  GPS in terms of domestic violence isn’t necessarily “new” – you can read about the beginnings in Eric Solotoff’s 2011 blog.  But this case also demonstrates that having a third party contract the private investigator services does not protect a defendant/spouse from entry of a final restraining order (“FRO”) based upon stalking and that reviewing the information/using it against the victim can also lead to the FRO based upon harassment.  Of note, although not explicitly stated, is that the tracking/private investigation was not intended to assist the defendant’s case, such as for cohabitation, but rather the opinion reads as though the only purpose of tracking the plaintiff was to learn about and question her whereabouts.  Other important factors that we often see, and which the court considered, include that the defendant was the sole wage earner and can therefore exert financial control against the plaintiff and the defendant used his larger physical stature to instill fear in the plaintiff.  In this very thorough decision, before addressing the merits of the appeal, the Appellate Division specifically stated that it “defer[s] to the judge’s thoughtful findings on this subject because those findings were solidly grounded on the judge’s credibility findings – he found L.G. much more credible than T.G., who was evasive – as well as other reliable evidence”.

In L.G., the Complaint for Divorce was filed in July 2017 following an approximate thirteen year marriage that commenced in 2004 and fell apart due to financial issues related to L.G.’s spending habits, including spending down the parties’ joint accounts, their daughter’s accounts, defendant’s inheritance and substantial credit card charges, causing T.G. to place her on a budget. The relevant restraining order in L.G. occurred after the divorce complaint was filed and after L.G. dismissed a pre-complaint temporary restraining order (“TRO”) against T.G.   That initial TRO resulted from a telephone call and text message exchange between the parties in response to T.G. closing their joint bank account.

Back to the TRO at issue here… Approximately three months post-complaint in October 2017, T.G. had his father retain a private investigator to conduct surveillance on L.G., including by having a GPS tracking device placed on her vehicle without her knowledge.  L.G. did not discover the device for nearly a month. During this period, there were 88 successful logins to view activity on the GPS that provided real-time whereabouts and approximately 391 updates from the GPS.  L.G. was followed personally for about three days.  Also during this period, and on the day that L.G. discovered the GPS, T.G.  questioned L.G. about her whereabouts and evasively confronted her with information he knew  from the tracking device before she knew it existed.  The parties got into an argument and each of them obtained a TRO against the other.  Following a trial, L.G. was granted an FRO and T.G.’s TRO was dismissed.

L.G.’s FRO was entered based upon the predicate acts of stalking and harassment – both of which stem from the GPS.  The statute guiding the predicate act of stalking is:

N.J.S.A. 2C:12-10(b)

  • [a] person is guilty of stalking, a crime of the fourth degree, if he purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear for his safety or the safety of a third person or suffer other emotional distress.

N.J.S.A. 2C:12-10(a)

  • For the purposes of this statute:
    • (1) “Course of conduct” means repeatedly maintaining a visual or physical proximity to a person; directly or indirectly, or through third parties, by any action, method, device, or means, following, monitoring, observing, surveilling, threatening, or communicating to or about a person, or interfering with a person’s property; repeatedly committing harassment against a
      person; or repeatedly conveying, or causing to be conveyed, verbal or written threats or threats conveyed by any other means of communication or threats implied by conduct of a combination thereof directed at or toward a person.
    • (2) “Repeatedly” means on two or more occasions.
    • (3) “Emotional distress” means significant suffering or distress.
    • (4) “Cause a reasonable person to fear” means to cause fear which a reasonable victim, similarly situated, would have under the circumstances.

T.G. came up with plenty of defenses regarding the GPS, including that “he did not personally install it; he never threatened her; he did not personally maintain visual and physical proximity to her ; and that his behavior was not persistent because it occurred over a one week period”  However, the Appellate Division didn’t buy it.  Rather, the court looked to the purpose of the stalking statute to “cast a wide net of protection for stalking victims by broadly prohibiting and punishing persistent, unwanted, and frightening behaviors” and “to intervene in repetitive harassing or threatening behavior before the victim has actually been physically attacked”.  The court also looked to the purpose of the Prevention of Domestic Violence Act to assure the maximum protection to victims.  Against this background, the court did not forgive T.G. because the device was on L.G.’s car as opposed to inside the home, such as in a bathroom or bedroom where L.G. would have a greater expectation of privacy.  Additionally, the court did not buy T.G.’s arguments that he should avoid the consequences of an FRO because he did not physically place the GPS on L.G.’s car and instead authorized his dad to do so.   Ultimately, the Appellate Division opined that “[i]ndirectly and through a third party, T.G. had L.G. followed, monitored, observed, and surveilled, by using adevice in violation of N.J.S.A. 2C:12-10(a).”

The Appellate Division then turned to harassment, which incorporated the same behavior from the above stalking, although not placement of the GPS itself. The statute guiding the predicate act of harassment is:

N.J.S.A. 2C:33-4:

  • 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.

Here, the trial court found that while the GPS was not harassment as T.G. did not intend for L.G. to detect the device, he did use the information obtained from the GPS to intentionally harass, intimidate and try to trap L.G., as well as to cause alarm and serious annoyance.

As to the history of violence and need for protection, the trial court found L.G.’s testimony credible regarding her fear of T.G. and need for an FRO to “feel safe with her kids”, as well as the parties’ prior arguments including an incident when T.G. said to L.G. “do you know what one punch will do to your face?”, as well as the physical incident when T.G. pushed and pinned down L.G. and, as L.G. later testified, threw her phone against the wall.  T.G. had also demanded access to her phone and contacts.

When I said this opinion was thorough, I wasn’t kidding, but it’s important.  The takeaway here is to think twice about placing a GPS on a spouse’s vehicle.  This is especially true when the surveillance has no bearing on your underlying claims and is merely for personal knowledge.  It also doesn’t matter that you may feel aggrieved by your spouse for spending habits or similar reasons.  Remember, even your dad can’t get you out of this one.

Lindsay A. Heller is an associate in the firm’s Family Law practice, based in its Morristown, NJ office. You can reach Lindsay at 973.548.3318 or lheller@foxrothschild.com.

Lindsay A. Heller, Associate, Fox Rothschild LLP