New Jersey Superior Court (Appellate Division)

As technology progresses, the use of it rears its head during divorce cases.  One such form of technology is the use of a GPS in a spouses vehicle.  In a reported (precedential) opinion decided on July 7, 2011, in the case of Villanova vs. Innovative Investigations, the Appellate Division affirmed a trial court’s granting of summary judgment, effectively dismissing a husband’s invasion of privacy claim.

In this case, the wife , in the midst of divorce proceedings, hired a private investigator to follow her husband.  The private investigator later suggested that the wife put a GPS device in the family vehicle driven by the husband and she did.  She later used the findings in the divorce case.  During the divorce case, the husband amended his divorce pleading to seek invasion of privacy damages against the wife.  He also tried to add the defendant’s in this case, the private investigator as a defendant in the divorce case but the court would not allow that.  The husband ultimately abandoned his tort claim against the wife in their settlement but reserved his rights to pursue his claim against the private investigator.

The invasion of privacy claim in the case against the private investigator was ultimately dismissed because the court found that there is no expectation of privacy driving over public roads. 

Continue Reading Appellate Division Finds that Putting GPS in Spouse's Car was Not an Invasion of Privacy

The New Jersey Judiciary website provides each days published and unpublished Appellate Division decisions.  If you read this blog with any frequency, you know that we often write about the decisions that are released.  Today there were three decisions from post-judgment divorce cases.  We will likely blog in more detail about some or all of them in the future.  What is interesting is that despite the fact that historically, appeals succeed only approximately 20% of the time, there were reversals in all three cases. 

In one, alimony was modified and permanent alimony was awarded without the court holding a plenary hearing (i.e. trial) on the contested issues. 

In another, the trial judge modified child support, multiplying the old child support amount  by the percentage increase in the plaintiff’s income.  The Appellate Division held that a simple mathematical calculation does not comply with the mandates of the statute and case law.  They further held that while the percentage increase is an important factor in determining the support obligation, it is not exclusive and does not relieve the trial judge of performing the required analysis
prescribed by the statute and case law.

In the third, there were conflicting certifications regarding a husband’s application to reduce support and the wife’s cross application for enforcement.  Not only was there no plenary hearing ordered despite conflicting certifications, there was not even oral argument on the motion allowed despite both parties requests for same.

Continue Reading Three Matrimonial Appeals Decided Today – Three Reversals

On June 28, 2010, the Appellate Division released the unreported (non-precedential) opinion in the case of "O.R. v. H.S."  In this case, the Appellate Division reversed the trial court’s Order

Continue Reading Appellate Division Reverses Award, Without a Plenary Hearing, of Joint Legal Custody, to Someone Guilty of Domestic Violence

The phrases “he who is his own lawyer has a fool for a client” and “you get what you pay for” proved to be true in the recent unpublished New Jersey Appellate Division decision of Andreaci v. Andreaci, App. Div. Docket No. A-1934-08T31934-08T3, decided, January 25, 2010. In Andreaci, after 16 years of marriage, husband filed for divorce. The husband represented himself and the wife had a pro bono lawyer. The parties reached a settlement which was memorialized into a Marital Settlement Agreement and incorporated into the parties’ Judgment of Divorce. The Agreement provides, in pertinent part, the following:

  1. Wife obtained custody of the parties to two children and ownership of the marital home;
  2. The second home owned by the parties was to be sold, and the proceeds held for the education of the children; and
  3. Husband was required to pay $800 per week/$3,466 per month (Said sum was designed to cover the cost of the monthly mortgage payment of approximately $3,000 per month).

The husband quickly fell behind on his child support payments. He was incarcerated on a bench warrant for non-support, and borrowed $5,000 to obtain his release from jail. Thereafter, husband filed a motion to seeking to reduce his support payments and other ancillary relief.  The trial court set the matter down for a plenary hearing and in the interim reduced husband’s support payments to $225 per week.

Continue Reading The Importance of Legal Representation

Previously, I blogged on the Appellate Division’s reported (precedential) decision in Kay v. Kay.  The New Jersey Supreme Court granted Certification and the decision was rendered on January 6, 2010.  In a per curiam decision (i.e. no one specific Supreme Court Justice authored the opinion), the Appellate Division decision was affirmed for substantially the reasons set forth in Judge Grall’s appellate opinion.

To reiterate what this case is about, the Appellate Division held that when the estate of a spouse who died while an action for divorce is pending presents a claim for equitable relief related to marital property, the court may not refuse to consider the equities arising from the facts of that case solely on the ground that the estate may not assert equitable claims against the marital estate sounding in constructive trust, resulting trust, quasicontract or unjust enrichment. In that case, the husband died basically penniless and the wife had assets in excess of $650,000 at the time.

The Appellate Division and now Supreme Court held that when the estate of a spouse who died while an action for divorce is pending presents a claim for equitable relief related to marital property, the court may not refuse to consider the equities arising from the facts of that case solely on the ground that the estate may not assert equitable claims against the marital estate sounding in constructive trust, resulting trust, quasicontract or unjust enrichment. This case rejects the holding in Krudzlo v. Krudzlo, a reported trial court opinion from 1990.

Continue Reading Supreme Court Affirms Kay Decision – Estate of Litigant Who Dies During Divorce Can Make Equitable Claims

A basic question that people often ask at the outset of a divorce is, does the Court have the ability, or jurisdiction, to hear their case, especially when one spouse lives in a state other than New Jersey?

New Jersey statutory law seems clear, but the outcomes of a jurisdictional question over whether the Court can hear the cause of action for divorce are often based on highly fact-specific scenarios. N.J.S.A. 2A:34-10 states, in relevant part to this blog entry, that a New Jersey Court may have jurisdiction over a divorce when either party to the marriage has “become, and for at least 1 year next preceding the commencement of the action has continued to be, a bona fide resident” of New Jersey. As noted by the Appellate Division in the recently decided Boghosian v. Boghosian, an intricate and interesting unreported (not precedential) opinion decided on August 17, 2009, New Jersey Courts interpreting the language of this law have concluded that “bona fide resident” is the equivalent of “domiciliary” and that either party must actually be domiciled in this State. 

Continue Reading Appellate Division Issues Interesting Opinion on Jurisdictional Issues

Oftentimes clients will ask once an Order or Judgment of Divorce is entered, what happens if he/she does not comply with its terms? The bitter and harsh truth is that an Order or Judgment is a piece of paper that is enforceable by the Court. So what does that mean exactly? Well, in simplest terms, if a spouse or ex-spouse does not comply with its terms, then a enforcement application will have to be filed with the Court. That application, among seeking enforcement of the Order or Judgment, can also request additional relief such as the payment of counsel fees, sanctions, interest payments, possible jail time, etc.

Recently, the Appellate Division addressed this issue in the unpublished decision of Scheps v. Paparazzo, A-0717-08T1, decided July 29, 2009. This appeal stemmed after Wife filed several post judgment applications seeking to enforce the parties’ Property Settlement Agreement for her payments of alimony and a subsequent more detailed Consent Order regarding these payments. From the record it appears as though Husband had the ability to pay the monies owed, however he would not make these payments according to the schedule set forth in the Agreement and subsequent Orders.

After Husband had been found in violation of litigant’s rights on more than one occasion and judgments were entered and recorded against him , the parties entered into negotiations. As a result, a Consent Order was drafted and executed which carefully delineated the result of Husband’s continued non-compliance. The relevant portions stated that Husband would “pay any and all legal fees and costs associated with plaintiff’s enforcement of the terms of this Consent Order….., if defendant does not make timely payments on or before the first of each month as defined above, the defendant expressly agrees to pay the plaintiff interest in the amount of 6% per month on any balances due and owing…” The 6% monthly interest was in addition to a 7% annual interest on the monies owed.

Continue Reading Interest: Penalty or Right By Contract?

i have heard on a number of occasions lawyers and judges saying that they cannot, at trial, award retroactive support for the pendency of case if no interim (called pendente lite in

Continue Reading Appellate Division Affirms Alimony Retroactive to Filing of the Divorce Complaint Even When There Was No Pendente Lite Support Motion Filed During Pendency of the Case