Essex County Divorce Attorneys

Many parents want to believe their children are “gifted,” but do they know that this “giftedness” may increase their child support obligations?

Judge Jones’ new published (precedential) opinion, P.S. v. J.S. highlighted the distinction between a regular old “extra-curricular activity” and the pursuits of a “gifted” child, reaffirming that, where a child is “gifted,” the Court may deviate from the Child Support Guidelines to award supplementary child support in order to foster that child’s talents and providing some guidance on how the Court might assess whether a child is “gifted” in a particular area.

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In many cases, the issue of extra-curricular activities is a big one.  Parents want their children to be able to enjoy sports, dance classes, acting lessons, singing lessons, and so on and so forth.  Most parents agree that such activities are important for a child’s enrichment and development.  However, there is often a question over whether the child support payor should contribute to these activities over and above his or her basic child support payment.

In P.S. v. J.S., the parties acknowledged that their daughter loved to act and that they wanted to support her theatrical endeavors.  The only question was whether the non-custodial parent’s child support payment already covered the cost of the daughter’s acting activity, or whether there should be an additional contribution over and above the child support payment.

In his opinion, Judge Jones began by recognizing that the Child Support Guidelines do, in fact, contemplate that the guidelines-based child support award will cover “entertainment expenses,” defined by law to include:

…fees, memberships and admissions to sports, recreational or social events, lessons or instructions, movie rentals, televisions, mobile devices, sound equipment, pets, hobbies, toys, playground equipment, photographic equipment, film processing, video games, and recreational, exercise or sports equipment.

Thus, “extra-curricular” activities are technically covered by a child support award calculated under the Child Support Guidelines.

But just when you think Judge Jones is going to “zig,” he “zags.”  Judge Jones went on to note that Comment 9(d) of the Child Support Guidelines

…expressly provides that the Court may in fact add supplemental funds to guideline-level support to help defray expenses for the development and special needs of a “gifted” child.  Under the guidelines, if a court deems a child to be “gifted” regarding a particular field or discipline, then it may be financially fair, equitable and appropriate for a court, upon application of a parent, to add a reasonable additional earmarked stipend onto both parents’ basic support obligation to help defray the costs of developing, enhancing and encouraging growth of a the child’s giftedness in a specific area.

The Court further held that the supplemental funds awarded to advance a gifted child’s development  “must be economically reasonable, with significant deference to each parent’s financial situation and actual ability to pay.”  In other words, there must be limits commensurate with the parents’ financial abilities.

The question, then, became whether the child at the center of the case was merely interested in acting as an extra-curricular activity, or whether she is a “gifted” actress.  Judge Jones opined that a child’s giftedness will generally relate “to a child’s aptitude , abilities and/or achievements” in one of four areas:  Academics, Athletics, Technology, or The Arts (though he did not foreclose other areas of “giftedness” outside these general categories).  In the particular case before Judge Jones, he found that the child in question was in fact “gifted” at acting.  As a basis for this ruling, he seemed to primarily rely upon two (2) interviews he had with the child approximately two years apart, and his observation that her dedication to and enthusiasm for acting had only seemed to grow in that time.  His decision did not, however, rest upon any sort of evaluation of her acting skills, as he acknowledged in his opinion that he had not observed her perform.  The decision suggests that a determination of a child’s giftedness may not rest upon his or her actual skill level alone.  In my opinion, the criteria for determining whether a given child is gifted will be tested and refined by further cases addressing this distinction between an extra-curricular activity and a gifted child’s pursuit.  Stay tuned…


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.

Mark Ashton, a partner in our Exton (Chester County), Pennsylvania office and former editor of our Pennsylvania Family Law Blog wrote an interesting post entitled “Listening to Your Kids During Traumatic Times” .

In this post, Mark, from a child’s perspective, lists 15 things that parents going through this process should consider, as follows:

  1. As your kid, I want to love both of you fairly and equally and not have you think that my love for you diminishes my love for the person you once promised to love “forever.”

  2. Moving from one house to another sucks and it’s made even worse when you get all stressed about my leaving. I will be back, just like the court order says.

  3. You are not responsible for everything that happens to me and I realize that when parents disagree, it gets disagreeable. But please don’t make it worse by making yourself crazy. If you feel trapped, try being in my place with two powerful adults wrangling over me.

  4. Please don’t share with me what you and my other parent are fighting about. And, oh yes, I did tell you each something different about what sport I want to play because I didn’t have the courage to stand up to either of you and feel your disappointment.

  5. Let me figure out whether I like the other parent’s new significant other. I am stressed with conflicting loyalty issues already.

  6. It really, really hurts when you don’t show up for something we have scheduled.

  7. Yes, gifts and trips are great but I can tell when the motivation is “Love me more.”

  8. When I’m with you, I do miss my other parent and that does not diminish my love for you.

  9. I am not staying with you to provide information about what the other parent is doing.

  10. Understand that when you share your animosity for the other parent or the frustration you have with them, I have just about no ability to help you with that. I am just the child which usually means all I can really do is channel your stress together with mine.

  11. You may have “moved on” emotionally and found the man or woman of your dreams. Please don’t ask me to share your dream until I am ready. I also know when your “friend” is a lot more than a friend.

  12. If I score a goal or play Dorothy in the “Wiz” I would like you both there sharing my joy. If I hug the other one first afterward, it is not a judgment.

  13. I don’t need to know your side of what happened. I don’t have the coping abilities of an adult and I have never been an adult. If money (or its absence) means you can’t say yes to me, that is something you can tell me without feeling that you failed me.

  14. If there is bad news, please don’t ask me to be the courier.

  15. Over time, I may judge the other parent harshly either with justification or without. I may be asking you to listen. I do want you to listen but I’m not ready to sign up permanently for the “Hate the Other Parent” team.

I recommend that everyone take a minute to read the entirety of this very thoughtful piece.

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Eric SolotoffEric 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 Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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Every family uses its money in different ways. Some families spend every cent they have on everything imaginable, others save every last possible cent for the proverbial “rainy day”, and many families fall somewhere in between. Once a marriage comes to an end, however, will both spouses be able to continue spending or saving in the same way they did during the marriage as part of the lifestyle lived?

New Jersey case law has long held that a trial court may consider a savings component as part of an alimony award to protect a dependent spouse from the potential future loss of income by allowing her to accumulate a post-Judgment safety net. One question that has never been answered until now, however, is whether a history of regular savings during the marriage as part of the marital lifestyle should be considered in setting an initial alimony award even when there is no need to protect the dependent spouse.

According to the Appellate Division in the newly published, precedential decision of Lombardi v. Lombardi, the answer is a resounding yes.

Kid counting money
Copyright: sbworld8 / 123RF Stock Photo

FACTS TO KNOW:

During the parties’ marriage, savings was the largest component of the parties’ lifestyle, but the trial judge rejected inclusion of a savings component when awarding alimony because the payee-wife did not need such funds to protect herself from a potential future loss of alimony. The parties jointly decided to live a comfortable lifestyle during which they saved approximately $70,000 per month, and budgeted most of the earned collective income so that the parties would have no worries about finances when paying for college and entering into retirement. In fact, the parties budgeted so efficiently that the payor-husband could retire at age 45 with an accumulation of $5 million in assets that could generate sufficient income to help fulfill the family’s lifestyle.

THE TRIAL COURT’S DECISION:

At trial, the wife indicated that she needed approximately $16,000 per month for herself and the three children to live a standard of living comparable to that lived during the marriage, exclusive of a savings component that she requested in the monthly amount of $30,000. She also sought $5,000 in monthly child support and for the husband to be responsible for all child-related supplemental expenses.

The trial judge acknowledged the existence of savings component during the marriage, but awarded a monthly permanent alimony payment of $7,600 based on a finding that the parties lived an undisputed “modest middle-class lifestyle” with a monthly budget of $14,516 (excluding savings). The $7,600 was calculated as sufficient to cover the shortfall in the wife’s budget after accounting for child support, monthly after-tax income estimated she could generate by investment of her share of equitable distribution (each party was receiving half of the roughly $5.5 million estate), and her after tax net income from part-time work.

Based on each party’s anticipated share of equitable distribution, the trial court found that each party had a significant opportunity to save and invest, even though the husband’s substantial income provided him with a far greater opportunity than the wife. Specifically, the court noted that the parties monthly average savings of approximately $87,000 was a “component of lifestyle” (whether for an early retirement or to enhance the parties’ economic security), but should be included in an alimony award “only [ ] to the extent it was necessary to ensure a dependent spouse’s economic security in the face of a later modification or cessation of support, which were not issues here.”

Even without a higher amount of alimony (inclusive of a savings component) the court noted that the wife could save (albeit at a lesser extent than that seen during the marriage) when considering:

  1. some “overlap” in the presented alimony and child support budgets;
  2. the wife’s right to claim the children as exemptions for tax purposes; and
  3. her “ability to work and retain earnings to use for savings . . . because of the maturation of the children . . . such that she would have more time to spend working if she chose to do so.”

The court also noted the wife would have no obligation to pay for college or any unreimbursed medical expense, the cost of extracurricular activities was covered by the “above guidelines” child support award, and if she wanted to work more she would be “protected against any claim that her alimony should be reduced or that she has lesser need,” and the alimony would likely never be reduced because of the husband’s income and assets. Summarizing its determination to exclude a savings component, the court held:

The [c]ourt finds that a permissible savings component which it elected not to do or not to include was because there are potentials for [plaintiff] to accumulate, earn, and otherwise be protected from a reduction by virtue of, one, reasons having to do with the current budget and the room in the budget to still save, the ability to work more without worry about a reduction in alimony, the investment opportunity that might enhance the return on the over $2 million that she will receive, the life insurance to protect against the death of the defendant, and the likelihood of a continued appreciation and increase in assets and earnings that . . . would protect her against any arbitrary . . . reduction in alimony based upon early retirement or otherwise.

The wife’s appeal followed.

THE APPELLATE DIVISION WEIGHS IN:

On appeal, the Appellate Division agreed with the wife’s position that the subject award allowed only the husband to maintain the standard of living experienced during the marriage, and that required Case Information Statement form, on its face, suggests that a savings component is a “fundamental element of the family lifestyle” because the savings category was specifically added to the budget portion of the form after its initial issuance.

Reviewing seminal New Jersey alimony law, the Court reminded that each party is entitled post-divorce to live a lifestyle reasonably comparable to that lived during the marriage, with neither party having a greater entitlement to do so than the other (as codified in the 2014 statutory amendments to the alimony law). As a result, the alimony award designed for the supported spouse to achieve such lifestyle that is ultimately the “touchstone for the initial alimony award.”

While noting how case law has long recognized that a savings component in an alimony award can protect a dependent spouse against the potential future termination of alimony, or to provide for future events such as retirement, the Court provided:

The most “appropriate case” in which to include a savings component is where the parties’ lifestyle included regular savings. Because it is the manner in which the parties use their income that is determinative when establishing a marital lifestyle, see Weishaus, supra, 180 N.J. at 145, there is no demonstrable difference between one family’s habitual use of its income to fund savings and another family’s use of its income to regularly purchase luxury cars or enjoy extravagant vacations. The use of family income for either purpose over the course of a long-term marriage requires the court to consider how the money is spent in determining the parties’ lifestyle, regardless of whether it was saved or spent on expensive purchases. The fact that the payment of the support ultimately is protected by life insurance or other financial tools, does not make the consideration of the savings component any less appropriate.

Rejecting the husband’s argument that the court appropriately considering savings through its equitable distribution award, the Appellate Division held:

The argument runs afoul of the rule that “equitable distribution determinations are intended to be in addition to, and not as substitutes for, alimony awards,” which are awarded to provide for the maintenance of the marital lifestyle post-dissolution. Steneken, supra, 183 N.J. at 299. Moreover, it is not equitable to require plaintiff to rely solely on the assets she received through equitable distribution to support the standard of living while defendant is not confronted with the same burden. As expressed under the alimony statute’s current version, the court must recognize that “neither party ha[s] a greater entitlement to that standard of living than the other.” N.J.S.A. 2A:34-23(b)(4).

In finding that its holding went beyond what most other jurisdictions provided regarding the savings component issue, the Court concluded:

We therefore hold that the Family Part must in its assessment of a marital lifestyle give due consideration to evidence of regular savings adhered to by the parties during the marriage, even if there is no concern about protecting an alimony award from future modification or cessation upon the death of the supporting spouse.

The issue of how to treat savings as part of the marital lifestyle under the type of circumstances present in Lombardi has long been discussed amongst family law attorneys without definitive judicial guidance.  Now that such guidance is here, this may not be the last we hear from the Lombardi family as perhaps the Supremes will ultimately weigh in.

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Robert A. EpsteinRobert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

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I previously blogged on economic abuse as a form of domestic violence in a post titled Financial Abuse: The Invisible Wounds of Domestic Violence. Although occurring in approximately 98% of all domestic violence situations according to National Network to End Domestic Violence, economic abuse is not what most people think about when they hear the term “domestic violence”.

Recently, the unpublished decision of C.G. v. E.G. addressed interference with employment as a harassing and coercive form of domestic violence. In this matter, the defendant intentionally attempted to obstruct and interfere with plaintiff’s new employment by calling her place of work without her consent, bothering her employer as well as her employer’s wife, and embarrassing plaintiff by alleging that she and her employer were having an affair.

Judge Jones defined economic harassment as “including purposeful acts which a defendant perpetrates while intending that such acts either (a) impair or obstruct a plaintiff’s actual or prospective job or job-related duties, or (b) threaten to do so with the purpose of controlling [someone], and/or pressuring or intimidating [someone] into submitting to [their] demands or wishes.” Judge Jones went on to describe this behavior as “fear-inducing to a victim of physical abuse” and that “there are arguable few threats more potentially harassing and coercive than threatening one’s livelihood or employment.”

20143619 - illustration depicting a sign with a victim concept

So what encompasses purposefully interfering with another’s employment?

(1)        Directly threatening to contact the victim’s place of employment and attempting to get the victim fired, either by making false allegations, or improperly publicizing private, personal and embarrassing information about the victim;

(2)        Actually contacting the place of employment and following through with actions designed to damage the victim’s status, and stability at his/her job; and

(3)        Repeatedly appearing uninvited at the victim’s place of employment and causing a disturbance, or otherwise acting in a manner which is disrespectful of, and/or embarrassing to, the victim, and disruptive to the victim’s job responsibilities and performance, and/or standard business operations.

The abusers underlying behavior, while an obvious form of harassment, is often times done as a way to corner the victim into either interacting with the aggressor or submitting to certain demands. Often times the victim, in order to avoid embarrassment gives in to the aggressor’s behaviors to their detriment.

Such interference with employment may constitute both harassment and coercion. The National Coalition Against Domestic Violence has reported that between 35% and 65% of victims of domestic violence are harassed at work by their abusers.

The New Jersey Supreme Court has recognized the right to be left alone in State v. Hoffmann, 149 N.J. 564, 585-85 (1997). Thus, “a person has a basic right to be left alone by an estranged or former spouse or dating partner at his or her place of employment.”

The Court concluded in C.G. v. E.G. that by phoning “plaintiff’s place of employment against plaintiff’s wishes, with the purpose and tactic of causing her harm as expressed and desired in his text message, and/or otherwise wearing plaintiff down into submission”, defendant “knew or should have known that he was improperly encroaching on Plaintiff’s new employment, while potentially subjecting her to public embarrassment in front of her employer and co-workers” and that these actions constitute harassment.

Additionally, defendant’s actions constitute a new form of domestic violence, coercion. In August 2015, the New Jersey Legislature amended the Domestic Violence Act to include “coercion”.

Coercion is defined as “threats made to unlawfully restrict another’s freedom of action to engage or refrain from engaging in conduct by threatening to:

(1)        Inflict bodily injury on anyone or commit any other offense;

(2)        Accuse anyone of an offense;

(3)        Expose any secret which would tend to subject any person to hatred, contempt or ridicule, or to impair his credit or business repute;

(4)        Take or withhold action as an official, or cause an official to take or withhold action;

(5)        Bring about or continue a strike, boycott or other collective action, except that such a threat shall not be deemed coercive when the restriction compelled is demanded in the course of negotiation for the benefit of the group in whose interest the actor acts;

(6)        Testify or provide information or withhold testimony or information with respect to another’s legal claim or defense; or

(7)        Perform any other act which would not in itself substantially benefit the actor but which is calculated to substantially harm another person with respect to his health, safety, business, calling, career, financial condition, reputation or personal relationships.

Interference with one’s employment can be considered both harassment and coercion, the latter expanding the prior definition of domestic violence to give victims more alternatives for protection against their abusers.

If you or someone you know is a victim of domestic violence, contact your local law enforcement and/or the confidential and anonymous National Coalition Against Domestic Violence Hotline at 1-800-572-7233.

Perhaps Kurt Cobain knew when writing the song “All Apologies” that one day his daughter would be embroiled in a nasty divorce battle.  While the lyrics, “Married, Buried, Married, Buried”, may not sound uplifting, they are undeniably classic Nirvana.  Fans of the band would largely agree that the most well known live performance of the song was the acoustic version played during the band’s “Unplugged in New York”, which took place shortly before Cobain’s death.  Now it is the guitar used by Kurt during that performance which lies at the center of Frances Bean Cobain’s divorce from her husband.

nirvana

Specifically, Frances’s husband is in possession of the guitar – thought to be worth several million dollars – and refuses to return it to her while alleging that she gave it to him as a wedding present.  Not surprisingly, Frances denies ever giving it to him at the start of their short-term marriage, and is taking the position that he has no right to any money from her fortune (Kurt’s estate is valued at approximately $450 million).

With that said, and straight from Seattle to the swamps of New Jersey, how would a court here potentially address the issue?

I Think I’m Dumb, or Maybe Just Happy:  Well, for starters, is there a prenup protecting Frances’s rights and interests in Kurt’s estate and, as part of the estate, the subject guitar?  I don’t know the answer, but even if Frances was blinded by her love for her now soon to be ex-husband, she would hopefully be smart enough to have had some sort of agreement drafted and signed protecting her from the claim now being made (unlike Paul McCartney in his divorce from Heather Mills, for example).  Such agreements often have language addressing so-called separate property and whether separate property is exempt from equitable distribution.  Language regarding interspousal gifts is also common and can be crafted in a way to ensure that even if she did gift the guitar to him during the marriage, it could still remain separate property exempt from distribution.

And For This Gift, I Feel Blessed:  At the heart-shaped box of this matter is whether the guitar was an interspousal gift from Frances to husband during the marriage.  This is essentially what husband is claiming.  In New Jersey, an interspousal gift is subject to equitable distribution.  Husband can take the position that even if the guitar was originally a non-marital asset exempt from equitable distribution (for instance, as an inheritance or gift to Frances, or by agreement), it lost that exempt status and became marital property subject to distribution once she gifted it to him.  If proven, Frances loses the right to claim that the guitar is exempt from equitable distribution at the time of the divorce.  With a guitar worth several million dollars, husband may look at his share of the guitar as the proverbial meal ticket in a short-term marriage where his rights are likely otherwise limited.

Hey!  Wait!  I’ve Got a New Complaint:  To rebut husband’s claim and supporting evidence/testimony that Frances gifted him the guitar, Frances would have to establish that there never was any gift.  In other words, there was no intent by Frances to gift him the guitar – a fact that perhaps she could establish by testifying about how she told husband at the time, and/or at other times during the marriage, that it was her/her family’s guitar, rather than husband’s guitar.  Maybe husband simply took it from the home and is now fabricating the entire story.  Credibility and the surrounding factual circumstances will play a large part in the final result.  Also, even if the guitar was ultimately deemed to be an interspousal gift, Frances may be aided in the actual allocation of the asset by New Jersey’s equitable distribution factors, especially that regarding who brought the subject property to the marriage.  Keeping the guitar in the Cobain family would seemingly be an important consideration for a family court judge, and may sway any determination regarding whether Frances could ever have intended it to be a gift.

It will be interesting to see how this matter unfolds and ultimately concludes.  Whether the litigant is Frances or anyone else similarly in her shoes, learning the law regarding gifts and equitable distribution may leave the litigant forever in debt to such priceless advice.

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Robert A. EpsteinRobert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

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*image courtesy of google free images.

While we do not often, if ever, blog about decisions in the area of employment law, the Supreme Court of New Jersey earlier this week in the decision of Smith v. Millville Rescue Squad held that our state’s Law Against Discrimination precludes discrimination and retaliation against an employee based on “marital status.  The meaning of “marital status” was found to include not only being single or married, but also “employees who have declared that they will marry, have separated from their spouse, have initiated divorce proceedings, or have obtained a divorce”.

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The case involved an employee who was terminated from his employment after he told his supervisor that he was having an affair with a co-worker, he was separated from his wife (who was also a co-worker), and was about to commence divorce proceedings.  Notably, the supervisor’s response to learning of such information was that he could not promise it would not have an impact on the employee’s job, and he later indicated his belief that the divorce would be “ugly.”

Written documentation regarding the termination, however, referred only to a corporate restructuring and the employee’s allegedly poor performance.  Notably, the employee testified that during his term of employment he was never subjected to formal discipline, was promoted twice, and received annual raises.

The trial court granted employer’s motion for an involuntary dismissal and, in so doing, found that employee failed to present evidence that he was terminated because of his marital status.  In finding that management properly acted out of concern that the divorce would likely be contentious, the trial judge found that such action did not constitute discrimination pursuant to marital status under the NJ LAD.

The Appellate Division disagreed, finding that “marital status” included being separated and involved in a divorce proceeding.  The Supreme Court agreed.  In so holding, the High Court provided:

The LAD prohibits an employer from imposing conditions of employment that have no relationship to the tasks assigned to and expected of an employee.  It also prohibits an employer from resorting to stereotypes to discipline, block from advancement, or terminate an employee due to a life decision, such as deciding to marry or divorce.  The LAD does not bar an employer from making a legitimate business decision to discipline or terminate an employee whose personal life decisions, such as a marital separation or divorce, have disrupted the workplace or hindered the ability of the employee or others to do their job.  However, an employer may not assume, based on invidious stereotypes, that an employee will be disruptive or ineffective simply because of life decisions such as a marriage or divorce.

The decision makes substantive and practical sense in defining the term “marital status,” which is not defined in the terms of the LAD, itself.  Separately, as noted in a post on this case from our Employment Discrimination Report blog, employers may not rely upon any religious exception for this prohibition.

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Robert A. EpsteinRobert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

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*image courtesy of google free images.

Family law practitioners know that in this area of practice, perhaps more so than in any other practice, hearsay statements are often an important part of motions brought before the trial court for every kind of relief imaginable.  A hearsay statement is a statement made outside of the court that is offered for the truth of the matter asserted.  Unless one of many exceptions apply, hearsay statements are inadmissible.  For example, if mom in her certification filed with a motion asking the court to address parenting time includes statements from the parties’ daughter that mom is asking the court to consider as truth, the daughter’s statements constitute inadmissible hearsay.  In other words, the court should not consider the daughter’s statements when rendering its decision.

Evidence pic

As we have frequently written, however, oftentimes anything goes in family law.  Hearsay statements are commonly no exception.  I have heard many times from Family Part trial judges that the rules of evidence will often be relaxed, including the hearsay rule, especially when issues of custody and parenting time are before the court to ensure that the best interests of the child are fulfilled.  It is for that reason why practitioners and litigants often put whatever they can before the trial court to convince the judge to rule in his or her favor.

In Arrowood v. DiBenedetto, a recently unpublished (not precedential) Appellate Division decision, the Court addressed the trial court’s rejection of various hearsay statements from the subject child provided by mom in denying mom’s motion to terminate overnight parenting time with dad because he continued to smoke in the child’s presence against doctor’s orders.  Addressing mom’s application, the Court noted:

What we glean from the record provided is defendant’s most recent motion relied on her daughter’s hearsay statements and a certification from [dad], the content of which is not before us. A trial court generally does not abuse its discretion by not relying on hearsay statements, because there is always a question about the exact content of such statements, especially when they are recounted by a party with an interest of the outcome of a decision. The law controlling the presentation of evidence in our courts excludes hearsay in numerous contexts. We certainly cannot conclude from the scant record before us that the trial court here abused its discretion by not imposing the drastic sanction of terminating parenting time based on hearsay.

Notably, however, the Court suggested that there still may not have been an abuse of discretion had the trial court considered the subject hearsay statements, especially since the matter involved the subject child’s health:

That is not to say we are insensitive to either defendant’s arguments or her frustration. Although she has not provided us with the transcripts or the statement of reasons for the court’s previous orders, at least one order appears to have been based on her firsthand observation. Notions of fairness and confidence in our system of justice often dictate that a court enforce its orders. That would appear to be especially so when a child’s health is at issue. But enforcement motions generally present competing versions of events and often require courts to balance profound competing interests. That is particularly so in family matters involving children and parental rights. That is also why Family Part judges are vested with broad discretion, and why we review their discretionary decisions with deference. Here, the record does not establish such an abuse of discretion.

So what is the takeaway here.  Sometimes the Rules of Evidence apply and sometimes they do not, although there is no specific rule indicating that the evidence rules should not always apply.  In practice, it depends on the factual circumstances, the litigants, the trial judge, and the like.  Especially when a child is at the center of the dispute, as opposed to more straightforward financial issues, a court is more likely to stretch its discretionary muscles to protect the child’s best interests above all else.

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Robert A. EpsteinRobert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

Connect with Robert: Twitter_64 Linkedin

*image courtesy of freedigitalphotos.net

In many custody disputes, a primary area of concern is one parent’s ability to relocate with the children after the divorce is over.  Relocation requests have been characterized as often resulting in “heart-wrenching” decisions.  As we have previously discussed on this blog, the legal standard to be applied to a parent’s interstate removal application differs if the parent is the primary caretaker as compared to an equal/”shared” physical and legal custodian with the other parent.  The two standards are briefly explained below:

US

Equal/”Shared” custodial parents:  If the parents “truly share both physical and legal custody,” then the moving parent must prove that the best interests of the children would be better served by residential custody being primarily vested with the relocating parent.

One primary custodial parent:  On the other hand, if one parent is the primary caretaker, that parent’s request to relocate with the children is governed by the two-prong Baures test – specifically, the moving party has to prove by a preponderance of the evidence that (1) there is a good faith reason for the move; and (2) the move will not be inimical to the children’s interests.  The Baures test is analyzed in the context of twelve (12) factors set forth in that case, and is more favorable to the primary custodian seeking relocation.  In fact, it is this favorable standard that often sees non-custodial parents claiming “de facto” equal custodial status in response to a primary custodian’s relocation motion so as to convince the trial judge to utilize the best interests standard.  As an aside, there exists pending legislation that would alter this favorable legal standard.

What happens, then, if there exists a so-called non-relocation agreement and a primary custodian seeks to relocate interstate?  The Appellate Division was faced with that issue in the newly published (precedential) decision of Taormina Bisbing v. Bisbing.  Here are the facts that you need to know:

  • The parties were married in 2005 and the children were born in 2006.  Both parties were highly-paid professional employees, with wife earning more than husband.
  • In early 2013, husband investigated job opportunities in Colorado and California.  The parties separated in August, 2013 and, in November, wife began a long distance relationship with a Utah resident who had children from a prior marriage.  The Utah resident owned a business in Idaho and had business interests requiring him to frequently travel to California and Louisiana.
  • On March 8, 2014, the parties entered into a marital settlement agreement wherein they agreed to joint legal custody, and that wife would have primary residential custody under the condition that she would not relocate outside of New Jersey.  The MSA also provided that dad would have “broad, reasonable and liberal timesharing” of the children – Father’s Day, his birthday, every other weekend and on one weeknight during the weeks when he did not have parenting time, every other Thanksgiving, Christmas Eve, Christmas Day, New Year’s Eve, New Year’s Day, and school breaks.  Each parent was entitled to attend all sporting events and activities regardless of which parent was scheduled to have parenting time.
  • As to relocation, the agreement provided:

The parties agree that each shall inform the other with respect to any change of residence concerning himself or herself or the said   minor Children for the period of time wherein any provision contained in this Agreement remains unfulfilled. The parties represent that they both will make every effort to remain in close proximity, within a fifteen (15) minute drive from the other. Neither party shall permanently relocate with the Children from the State of New Jersey without the prior written consent of the other. Neither parent shall relocate intrastate further than 20 miles from the other party. In the event either party relocates more than 20 miles from the other party, the parties agree to return to mediation to review the custody arrangement. In the event a job would necessitate a move, the parties agree to discuss this together and neither will make a unilateral decision. Neither party shall travel with the minor Children outside of the United States without the prior written consent of the other party.

The parties hereby acknowledge that the Children’s quality of life and style of life are provided equally by Husband and Wife.

The parties hereby acknowledge a direct causal connection between the frequency and duration of the Children’s contact with both parties and the quality of the relationship of the Children and each party.

The parties hereby acknowledge that any proposed move that relocates the Children any further away from either party may have a detrimental impact upon the frequency and duration of the contact between the Children and the non-moving party.

  • On April 16, 2014, a final judgment was entered that incorporated the terms of the settlement agreement.  Husband represented that, after the divorce, he was very involved in the children’s lives, coached their teams, took them to activities, and attended school events.
  • One month after the divorce, wife sent an email to husband telling him that, although she received no alimony, she was planning to leave her job on July 1, 2014 to be a full-time stay-at-home parent, which she did.
  • On January 8, 2015, wife called husband to tell him of her intention to get married to the Utah resident and relocate to Utah.  Wife asked for husband’s permission to relocate with the children.  Husband refused, indicating that she could move and leave the children with him.
  • On March 16, 2015, wife filed a motion to relocate with the children to Utah without the need for a plenary hearing.  The court granted the motion – without a hearing – so long as a visitation schedule could be established through mediation.
  • On July 14, 2015, after unsuccessful mediation, with only wife suggesting a parenting plan, the court issued a supplemental order establishing a parenting time and communication schedule using most of wife’s suggestions.  Eleven days later, wife and the children “left for a vacation to Utah.”  Three days thereafter, she permanently relocated with the children in Utah.

In reversing and remanding for a plenary hearing, the court found:

  1. The best interests of the child standard should be applied if wife was found to have negotiated the settlement agreement in bad faith.
  2. If no bad faith finding is made, the court is to consider whether wife proved a substantial unanticipated change in circumstances “warranting avoidance of the agreed-upon non-relocation provision and simultaneously necessitating a Baures analysis.”
  3. If the settlement agreement was deemed to have been negotiated in good faith, but wife fails to prove a substantial unanticipated change in circumstances, the court is to apply the above-referenced best interests of the child standard.
  4. In other words, wife could only receive the “benefit” of the Baures standard if wife was found to have negotiated in good faith and proved a substantial unanticipated change in circumstances.

Under such guidance, the Court distinguished from the notable prior trial court decision of Shea v. Shea,wherein the father accused the mother of of manipulating the Baures procedure by settling the divorce, and immediately thereafter filing for removal so as to reply upon the more favorable burden of proof.  Here, the Court critically found that husband was entitled to a hearing to prove whether wife manipulated the situation to obtain “favorable Baures removal procedures” that:

  1.  When wife entered into the agreement, she may not have definitely known of the “material facts and circumstances forming the good faith reason for the removal request” (i.e., moving to Utah to marry her boyfriend).
  2. The non-relocation provision did not exist in the earlier matter.

In so holding, the court found:

Similar to the situation in Shea, the close proximity between the parties’ agreement and [wife’s] plans to relocate provides evidence of suspicious circumstances requiring a plenary hearing.  If, after holding a hearing, the family court finds that [wife] negotiated in bad faith, it should then analyze the relocation request under a “best interests” analysis.

The non-relocation was to be considered even if wife is found to have negotiated in good faith, “without manipulative intent” premised on New Jersey’s strong public policy favoring agreements that resolve marital disputes.  In damning tone, the Court found:

Thus, [wife], in a written and voluntarily agreed-upon contract, specifically surrendered her “freedom to seek a better life” in another state while obtaining primary custody of the children, and was well aware of that agreement when she chose to remarry and move far away.

While the relocation language of the agreement considered new employment as a basis for moving, it did not mention remarriage, thereby leading the Court to suggest that testimony would reveal whether remarriage was a considered eventuality at the time of the agreement and, thus, not an unanticipated substantial change in circumstance.  The Court also noted that, if the Baures standard was to ultimately apply, the trial judge would be charged with analyzing the effect on the children of moving away from both parents’ extended families.

When I first read the facts, I was saddened, but not at all shocked at what seemed to be a clear manipulation of the prevailing legal standards discussed above.  I have been involved in many cases on both sides of the relocation argument, and have seen the devastation that can result.  A difficult situation becomes all the more tragic when it is clear that one party is not proceeding in good faith.  What wife seemingly did here is just as bad as the non-custodial parent who claims de facto equal custodial status just to have the best interests standard applied.  It is for these reasons, in part, why the pending legislation mentioned above makes sense in some form – to remove this sort of gamesmanship from the equation when children are involved and the relationships with one or both of their parents is potentially at stake.  The Appellate Division certainly got it right here with a just result.

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Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

Connect with Robert: Twitter_64 Linkedin

*Photo courtesy of Google free images.

Suffice it to say, the issue of cohabitation under the amended alimony statute has been a hot topic of late in New Jersey family law. With several recent notable seminars on the topic, and two recently issued Appellate Division decisions (one published and the other unpublished) addressing when the amended law applies, practitioners and potential litigants hungrily consume these new cases looking for any morsel of guidance on how the statutory language will work.

Back when the law originally passed, I wrote an article for the New Jersey Law Journal analyzing cohabitation law past, present and future. A year and a half later, I am not only unable to confirm how a trial judge would apply the new statute, but if the discussions from each of those recent seminars are any indication, different judges may and will likely apply the statute very differently.  In other words, some trial judges may favor applying the pre-amendment legal analysis, some may strictly apply the new statutory language, and some may even implement some sort of combination of the two.

PI

Thus, as a very strong introductory caveat – We have no idea how the new will be applied given what we have heard judges say about it, and the fact that there is no law to guide us.  Now, with that being said…

Just to briefly refresh, what did the old law say? Well, cohabitation was described by the Supreme Court of New Jersey as:

  • An “intimate,” “close and enduring” relationship that requires “more than a common residence” or mere sexual liaison. The relationship “bears the generic character of a family unit as a relatively permanent household,” is “serious and lasting,” and reflects the “stability, permanency and mutual interdependence” of a single household.
  • It involves conduct whereby “the couple has undertaken duties and privileges that are commonly associated with marriage.”

Indicia may include, but is not limited to, long-term intimate or romantic involvement; living together, intertwined finances such as joint bank accounts, shared living expenses and household chores, and recognition of the relationship in the couple’s social and family circle.  The so-called “economic benefits” test would come into play after the payor made an initial showing of cohabitation, at which time the court would determine if the third party contributed to the dependent spouse’s support, or if the third party resided in the dependent spouse’s home without contributing anything to household expenses.

Now what does the new law have to say? The law defines cohabitation as involving a “mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union but does not necessarily maintain a single common household.” A trial judge presented with a cohabitation allegation is required to consider: (1) Intertwined finances such as joint bank accounts and other joint holdings or liabilities; (2) Sharing or joint responsibility for living expenses; (3) Recognition of the relationship in the couple’s social and family circle; (4) Living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive intimate personal relationship; (5) Sharing household chores; (6) Whether the recipient of alimony has received an enforceable promise of support from another person within the meaning of subsection h. of R.S. 25:1-5; and – of course, since this is family law that we are dealing with – (7) All other relevant evidence. So we now know that, at the very least – under the amended law – cohabitation does not require the couple to live together on a full time basis, which was unresolved pre-amendment.

Also to clarify what I indicated earlier, some trial judges have suggested that because the family part is one tasked with imparting an equitable result, they may still apply the economic benefits test and potentially modify – rather than suspend or terminate as the statute says – an existing alimony obligation. Notably, as I wrote for the Law Journal, those amended portions of the law addressing an alimony change in the event of the payer’s retirement or down income use the word modify as a possible option, but that word is nowhere to be found in the cohabitation section. Was that deliberate, favoring the notion that the law is more payor friendly, or was it unintentional and not meant to wipe away the old law?  We do not yet know the answer.  Also notable is how a recent case addressing the retirement language section of the amended statute relied upon statutory interpretation and construction, rather than a broader interpretation that perhaps some practitioners were expecting. This does not mean, however, that the cohabitation portion of the statute will be similarly analyzed and applied.

Other trial judges have indicated that the statute requires a suspension or termination, although a separate question exists as to when a suspension would occur. Perhaps as a sign of rulings to come or, perhaps, also inadvertently, the Appellate Division in one of those two cases I mentioned above indicated that alimony “shall” terminate upon cohabitation by the payee. This, however, was neither an issue or holding in the case, and even the statute uses the word “may” rather than “shall.” Also, when should a so-called suspension of alimony even occur? Should it only occur during a cohabitation proceeding and potentially be reinstated if cohabitation is ultimately unproven? Should it occur as a final result and be subject to reinstatement if the cohabitation ends?  The answers are unknown at this point.

What about making the initial cohabitation showing?  As is true with any case, judges are going to look at the same set of facts differently from each other. For instance, while one judge may find it sufficient for the payor to establish that the couple has been living together at least four days per week for a month, another judge may want more. While one judge may deem sufficient intertwined finances via a single joint bank account and the couple holding themselves out as in a relationship on occasion, another judge may disagree. All judges present at the seminars seem to agree, however, that the more information and evidence of cohabitation to be considered in the initial filing, the better. We even discussed a good old fashioned garbage inspection, where you never know what kind of gems may turn up in a payee’s trash bin – in other words, one payee’s trash may be one payor’s Exhibit A to a Certification.

Thus, no matter how the law is to apply once cohabitation is established (suspension, terminate or modify), the process by which a payor spouse is to gather information for a motion to “address” alimony due to cohabitation seems to remain the same. Private investigators will often still be a potentially key part of the puzzle, and, to the extent the couple somehow cannot manage to keep themselves from discussing the relationship on social media, such evidence is often, but not always, the equivalent of the goose that laid the golden egg – in other words, the online version of the garbage can.

It was those recent seminars that really brought back to the forefront for me how much has yet to be determined under the amended law and, perhaps more importantly, how each case leaves unanswered the question of what gets a moving party passed that first litigation hurdle, and what a payee spouse can do to successfully fend it off. For both sides, the picture remains cloudy in some ways and crystal clear in others, and that is without any of the sort of guidance that we have recently seen with the retirement portion of the amended law.  We will all continue to stay tuned as to what this portion of the new law can do once tested.

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 Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

Connect with Robert: Twitter_64 Linkedin

*Photo courtesy of mondspeer (Google free images).

Ah, the moment you have been waiting for – nay, dreaming of – has arrived:  your child has gotten his or her driver’s license!  It was a long time coming, after 17 long, hard years of carpooling to school, arguing with the other parents about who is going to pick the kids up from their mall hang-out session, shuttling your child to sports practices, lessons, tutors, and so forth.  Freedom is yours!  There’s just one question:  who’s going to pay for the expenses associated with your son or daughter’s car and insurance expenses?

teenage driver graphic

When it comes to working out a fair child support arrangement, the devil is often in the details.  Child support recipients often feel that the support awarded to them under the Child Support Guidelines – the formula used in this state to calculate appropriate child support awards in most cases – isn’t enough.  After all, kids cost a lot of money.  Plus, their needs are constantly changing.  A child support award entered when the child is 3 years old may not be adequate when that child turns 13.  For parents of teenagers, one life change that often creates a dispute about the adequacy of the child support award occurs when the child begins driving and, at the very least, increases auto insurance costs.

For years, family law attorneys and our clients have grappled with the issue of whether the cost of a child’s car insurance as a new teenage driver was intended to be covered by a Child Support Guidelines-based award or, alternatively, it should be treated as an “add-on” expense to be shared by the parties over and above the child support payment.  And, as Judge Jones points out in his latest thoughtful opinion, Fichter v. Fichter, it has been unclear as to whether the Court may use its discretion to increase the child support contribution in order to address the costs of having a new teenage driver of divorced or unmarried parents.

In 2013, The New Jersey Child Support Guidelines were amended and gave us some answers to these questions.  As amended, child support is to include:

Transportation – All costs involved with owning or leasing an automobile including monthly installments toward principal cost, finance charges (interest), lease payments, gas and motor oil, insurance, maintenance and repairs. Also, included are other costs related to transportation such as public transit, parking fees, license and registration fees, towing, tolls, and automobile service clubs. The net outlay (purchase price minus the trade-in value) for a vehicle purchase is not included. Transportation also does not include expenses associated with a motor vehicle purchased or leased for the intended primary use of a child subject to the support order.

So, the 2013 amendments told us that if a child is going to drive his/her own car, the expenses associated with buying that car, and all other expenses associated with that car – which presumably includes insurance costs – are more appropriately considered “add-ons” to child support and not part of the child support expense.  By contrast, the 2013 amendments tell us that if a child is driving his/her parents’ car, child support will include all costs associated with that car.  And that makes sense:  if no new car is being purchased for the child, the actual expenses incurred by the parent who owns that car are going to remain the same.

Well, except for the auto insurance.  New teenage drivers can increase the cost of auto insurance for an existing car exponentially – they are one of the most expensive classes of drivers to insure due to their inexperience.  To say that an existing child support award covers the cost of adding a newly licensed teenage driver to the auto policy for an existing family car – while the cost of insurance for a new car primarily for that child’s use is NOT included – seriously prejudices those families who can’t afford to, or don’t want to, buy a new car just for their child to use.  Judge Jones’ new decision recognizes that inequity and allows the Court to deviate from the Child Support Guidelines and craft a child support award that takes into account the new expense of adding a teenage driver to an existing auto insurance policy:

The Court finds that, based upon the totality of a family’s economic circumstances, a court may in its discretion find good cause to deviate from the guidelines and require each parent to contribute additional reasonable and affordable monies towards a newly licensed teenage driver’s car insurance.  Good cause may logically include, but not necessarily be limited to, the special nature and importance of car insurance and the need to adequately protect a child as a newly licensed driver.

And that seems fair.  Shouldn’t both parents contribute to the increase of the cost in insurance if they agree they will not purchase a new car intended primarily for their child’s use?  Of course, like most other things in family law, Judge Jones’ decision is fact-sensitive and not a brightline rule.  Although the decision opens the door for a Court to decide to adjust child support to take into account the cost of insuring a newly licensed teenage driver on an existing family vehicle, good cause to do so must still be shown.


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.