Enforcement Issues

We don’t typically post about DYFS (now DCPP) or similar type cases on this blog as we usually focus on divorce and related issues. That said, for fun, I was reading the new cases that were decided yesterday and came upon a case that I found compelling, both because it indicated some systemic problems in custody cases and because it had some real strong language about parental rights – that while stating the obvious, perhaps, did so in a powerful way and in a way that needed to be reiterated. 

The case I’m talking about is  C.D., A.P. and D.D. v. N.D.M.  and A.L.   which was an unreported (non-precedential) decision released by the Appellate Division on January 8, 2013.  In that case, the aunt and grandparents received temporary custody of her niece and a best interest evaluation, to be completed within 90 days, was ordered.  The parties ultimately agreed to a joint expert to do the evaluation,  That evaluation, which by court order was to be completed in 90 days, took more than a year to complete.

SYSTEMIC ISSUE #1:  All custody and best interest evaluations are supposed to take 90 days or so.  That almost never happens.  Rather, it is not unusual for it to take 6 months or longer to get a report.  If it is a joint or court appointed expert, the party who doesn’t like the report has the right to get their own report so add another several months to the process.  As in this case, where the mother’s custody with her own child hinged upon this report, the prejudice cannot be quantified.Continue Reading Getting Temporary Custody of a Relative Does Not Make You the Psychological Parent

Very often, when parties settle their cases, in their Marital Settlement Agreement (a/k/a Property Settlement Agreement), there is a provision to the effect that if a party does not comply with the Agreement, they will be liable for the other party’s fees if the Agreement has to be enforced in Court.  That said, court’s more often than not disregard that paragraph (as well as the Rule 1:10-3 which suggests an award of counsel fees when a party fails to comply with an Order), and apply the typical matrimonial case law and court rules regarding fee shifting in a matrimonial matter, if the court gives any real consideration to the issue, at all.  The aggrieved litigant is often frustrated by the fact that they had to incur fees to get something that they were already entitled to.  The offending party is sometimes empowered because he or she has suffered no negative result from the failure to comply.

However, in a refreshing unreported (non-precedential) opinion in the case of Ullmann v. Ullmann decided on March 23,2011, the Appellate Division held that it was improper for the trial court to ignore that provision in the parties’ agreement.Continue Reading Provision for Payment of Counsel Fees for Non-Compliance in Settlement Agreement Enforced by the Appellate Division

For many, litigation after a final judgment of divorce is a well known reality.  Oftentimes, especially when children are involved, issues arise regarding child support, other expenses for the children, enforcing terms of a judgment or agreement.

In the matter of Warmke v. Warmke, Appellate Division, decided January 26, 2009, the Court faced such issues as noted above in what stemmed from post judgment motion practice.  Ms. Warmke filed an application with the trial court seeking to fix the amount of childcare arrears owed by Mr. Warmke, modify and enforce child support payments, modify parenting time, modify the amount of life insurance required by their agreement and for counsel fees.  Mr. Warmke filed a cross application requesting that Ms. Warmke contribute to summer camp expenses, a hearing aid for the older child, medical expenses, requiring her to share the transportation reimbursement from the public school and for counsel fees.

The Warmke’s had been divorced since 1996 and had entered into an Agreement resolving the outstanding issues in their marriage.  They had two children, the eldest of which suffers from Down Syndrome, Pervasive Developmental Disorder, anxiety disorder, seizures, and hearing and vision impairments.

The parties’ agreement provides for joint legal custody. Ms. Warmke has primary physical custody and Mr. Warmke receives liberal parenting time.  At some point after the agreement was entered into, the parties modified their parenting time arrangement, allowing Mr. Warmke primary physical custody during the school summer holiday.Continue Reading Arrears, Enforcement and Modification: A Triple Threat?