Enforcement of Litigant's Rights

They say a picture is worth a thousand words, and in the recently unpublished (not precedential) case of C.S. v. B. S., Judge Jones determined that 25-years’ worth of family pictures destroyed by a scorned ex-wife are also worth $5,000.00.

In C.S. v. B. S., the parties divorced after approximately 25 years of

For whatever reason, it is not unusual for a Marital Settlement Agreement and/or Custody Agreement to have a mediation clause in it which requires parties to go to mediation before bringing an issue to the Court by way or motion.  For some issues, like enforcement, one questions the obligation to go to mediation.  Either someone violated the agreement or they didn’t.  Other issues require a more swift decision and mediation could only slow the resolution down, especially for the party who might benefit from the delay.  And while we see these clauses all of the time, I have also seen many judges ignore the clause and adjudicate the dispute. 

This, however, is not what happened in the Decilveo n/k/a Woolf v. Decilveo case decided today by the Appellate Division in an unreported (non-precedential) opinion.  In this case, the parties divorce agreement stated:

In the event that any differences arise out of the interpretation, construction or
operation of this Agreement, the parties further specifically agree as follows:

(a) They shall first attempt in good faith to resolve such differences amicably and directly with each other, retaining the right to seek advice of counsel;

(b) If they are unable to resolve any dispute between themselves or with the assistance of counsel, or through mediation, either side may submit same to a Court of competent jurisdiction for resolution.

Arguably, this provision does not appear to specifically apply to enforcement or modification, two major parts of this litigation but the trial judge interpreted the agreement broadly, forcing the parties to mediation to address their numerous disputes. 


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Oftentimes, a less economically able party is faced with a spouse or former spouse who insists on litigating time and again simply because they can, hoping that the “war of attrition” will force the other party to give them what they want to avoid further motion practice.  We as family practitioners know that while the

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.


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One of the hardest questions to answer for a client is why a Court doesn’t enforce their own Orders.  The next hardest questions to answer are if they found the other side in violation of litigant’s rights, (1) why weren’t there any real consequences for the violation of the order and (2) why didn’t I get counsel fees.  The Court Rules suggest that a litigant is entitled to counsel fees if they are required to come to court to enforce an Order.  In addition, the court rules in the family part also include numerous provisions, including the imposition of monetary sanctions and counsel fees, for violation of a parenting time (visitation) Order. 

As such, it was interesting to see the unreported decision in the case of Friedman v. Friedman decided on March 7, 2011 wherein an awarded of sanctions for violating a parenting time order was affirmed by the Appellate Division.  In this case, the father asserted that the mother violated the parties’ parenting schedule when she "signed both children out of school and drove them to [Virginia]." As a result, the father sought sanctions against the mother "for making unilateral changes" to the parenting schedule "and for failing to cooperate with the recommendations of the Parenting coordinator."  The trial judge found that  the mother violated the parties’ parenting schedule and the recommendations of the parent coordinator by extending "the children’s time with her, in Virginia."  As a result, the mother was ordered ordered to pay the father $500.00 as a sanction plus reimburse him for his costs to file and serve the motion.  The decision was based upon the court’s finding that the mother had a history of failing to cooperate with the plaintiff.  In addition, the mother’s request to relieve the current parent coordinator was denied.


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Many divorces involve distribution of assets, including pensions.  To protect the non-titled party entitled to receive a share of the asset, i.e. pension, the court may mandate or the parties will negotiate security to ensure receipt of the value of the asset.  In a recent unpublished post judgment Appellate Division decision, Brown v. Brown, decided January 3, 2011, the court awarded the plaintiff-wife attorneys fees for enforcing defendant-husband’s obligation under the Judgment of Divorce to obtain a life insurance policy that guarantees the wife’s interest in defendant’s pension payments.  But the Appellate court refused to uphold the trial court’s Order, which imposed monetary sanctions against the husband for failing to obtain the requisite life insurance policy.

Defendant-husband was required to obtain a life insurance policy and to select a payout option where the wife would receive monthly income if the husband were to predecease the wife.  However, the husband failed to obtain the requisite life insurance and attempted to select the pension benefit that would maximize his income during retirement but would preclude the wife from receiving any income should he predecease her.  Only through the diligence of the wife was it discovered that husband had attempted to select the incorrect payout option.  As a result, the wife filed two motions seeking to enforce her rights under the Judgment of Divorce.


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On May 21, 2010, the Appellate Division issued a reported (precedential) opinion in Colca v. Anson involving different aspects of child support and college support.  This case reinforces several principles regarding child support and payment of college expenses that we already knew (which makes it somewhat surprising that it was reported) but nevertheless is a good reminder of certain basic principles. 

The first of these principles is that child support belongs to the child and thus cannot be waived by a parent or for that matter, by a court.  This comes up in two contexts in this case.  First, in a 2005 Order, for whatever reason, the trial court denied the father’s request for child support for the parties’ daughter who was in college.  In another motion in 2008, the father sought child support again.  Thinking that the matter had previously been decided by the court and that there were no changes of circumstances, the mother did not even file a Case Information Statement. 

The trial court disagreed with the mother’s position that the prior Order was forever binding and required a showing of changed circumstances, pointing out that the duty to support a child continues until emancipation.

In addition, the Appellate Division affirmed the trial court’s decision that the child’s inheritance could not be considered with regard to support.  While perhaps correct as to child support, there are not enough facts given in this opinion about how much was really in dispute. That said, the Child Support Guidelines suggest an adjustment to child support may be required if a child has an extraordinarily high income.  Also, in the famous NJ case on college expenses, Newburgh v. Arrigo, which we have blogged on many times before, a child’s assets are a factor to be considered.  Since the college was at issue in this case, one wonders why the inheritance was not considered here.


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In an interesting unreported opinion in the case of Tiger v. Tiger released on April 21, 2010, the Appellate Division affirmed an Order enforcing a Property Settlement Agreement and post-judgment Consent Order and denying the husband’s request for an ability to pay hearing regarding alimony and the remainder of his equitable distribution obligation.

After a 35 year marriage, the parties were divorced in 2005 and the husband was required to pay short term alimony and $150,000 in equitable distribution over 4 years.  The husband failed to pay his 2007 and 2008 obligations but never filed a motion seeking modification.  The wife, however, filed an enforcement motion in 2007 and the husband was ordered to pay the $40,000 owed.  The husband filed a motion for reconsideration wherein his alimony was reduced from $70,000 to $50,000 and he was granted more time to pay his equitable distribution payment.  He then failed to pay his 2008 equitable distribution payment and another enforcement motion ensued.  A plenary hearing was ordered as a result but the hearing never happened because the parties entered into a Consent Order wherein the husband agreed not to seek to modify the equitable distribution again and not to seek to modify the alimony before 1/1/10. Not surprisingly, he failed to comply and another enforcement motion was filed in late 2008. The husband used the economic situation in the real estate industry as a reason for his non-compliance.  The trial court denied his motion finding that the husband was a sophisticated business man who entered into the consent order will full knowledge of the economic situation in the real estate industry.  The appeal ensued.


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As the saying goes “Hell has no fury like a woman scorned,” but in a recent unpublished New Jersey Appellate Division decision the opposite was true.  In Weitz v. Weitz, App. Div. Docket No. A-1760-08T1, decided February 25, 2010, the defendant, Arthur Weitz, appealed from orders denying his post-judgment motions to terminate payment of alimony and for reconsideration.

Mr. Weitz and his ex-wife, Susan Weitz, were married in 1966 and divorced in 1994.  As part of the final judgment of divorce, a Property Settlement Agreement was entered into by the parties.  The Agreement required Mr. Weitz to pay alimony from 1994 until 2006, but if he was unemployed for a period exceeding 1 month than he would not have to pay for that month.  However, any months Mr. Weitz did not pay alimony would be tacked onto the termination date of the alimony.  The Agreement also stated that if Ms. Weitz remarried, died, or cohabitated with another man, alimony would immediately terminate.


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