Enforcement of Litigant's Rights

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.Continue Reading A Decision To Not Require Child Support Is Not Binding on Future Court To Hear Matter – Child Support Cannot Be Waived

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.Continue Reading Just Enough Rope – Ex-Husband’s Attempt To Further Delay Paying Equitable Distribution Is Denied

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.Continue Reading Hell Has No Fury Like a Husband’s Scorn

On February 3, 2010, the Appellate Division issued a reported (precedential) opinion in the case of Parish v. Parish.  This case is near and dear to me because I represent Mr. Parish and we made new law. 

In this post-judgment litigation we filed a motion seeking enforcement of the parties’ divorce agreement because the ex-wife interfered with his parenting time with the children and to fix a parenting schedule for the next several months. The schedule was supposed to be arrived at with the assistance of a parenting coordinator but the issuance of a domestic violence temporary restraining order against Mr. Parish’s ex-wife delayed that process. After the restraining order was dismissed, the parties went to the parent coordinator who made recommendations prior to the return date of the motion. Mr. Parish agreed with them – he ex-wife would not state if she agreed or not, waiting to see what the court would do.

The trial court denied Mr. Parish’s motion as moot, ordered the parties back to the parent coordinator to deal with the issues in the motion and required that the parties attend settlement conferences before filing any future motions, even enforcement motions.

We appealed arguing that (1) the trial court unconstitutionally impaired Mr. Parish’s access to the Court and (2) the court improperly abdicated its responsibility to a parent coordinator who cannot, by Supreme Court directive, address enforcement issues in any event.

The Appellate Division agreed in a 2-1 decision. In doing so, they crafted new requirements before a family part litigant’s access to the Court can be restricted.Continue Reading APPELLATE DIVISION CREATES NEW PROCEDURE LIMITING JUDGE'S ABILITY TO RESTRICT A LITIGANT'S ACCESS TO THE FAMILY COURT