Morristown Divorce Attorneys

Arbitration – essentially, a private trial in which the parties hire a fact-finder who serves in lieu of a judge – has become an increasingly common means of resolving family law disputes.  Although an arbitration may be conducted with all the formalities of a trial, usually parties can agree to dispense with certain formalities, some of which can be costly for the parties.  Arbitration takes a trial out of the sometimes messy court system, usually guarantees a decision will be made in a timely manner, and ensures that the trial does not become a matter of public record.  In family law matters where the issues can be sensitive and the testimony potentially embarrassing to the parties, this may be preferred by the parties.

Another advantage to arbitration is that the litigants are not beholden to the deadlines of the Court system.  They can move on with their lives and even get divorced, while agreeing to defer certain issues to arbitration on a more relaxed timelines.  But sometimes this can backfire.

In a recent unpublished (non-precedential) decision, Shah v. Shah, the Appellate Division addressed the question:  “What happens to an agreement to arbitrate when nobody arbitrates?”

The answer given by the Appellate Division is an interesting one, especially in light of the facts of the Shah case.  In a nutshell, here they are:

  • The Shahs entered into an agreement resolving at least some of their issues in January 2003.  As to those issues that were not resolved (and there were a whopping seventeen of them), they agreed that they would proceed to arbitration.  They agreed on an arbitrator, paid his retainer, and set a date for arbitration.  However, the arbitration did not go forward and after several years passed, Arbitrator # 1 returned the retainer.
  • In 2008, the parties mutually agreed upon a new arbitrator, Arbitrator # 2.  However, neither of them took any steps to retain him.
  • In 2009, Mr. Shah filed a motion to compel the arbitration, expand the scope of the arbitration beyond the seventeen issues identified in the parties’ agreement, and appoint a new arbitrator.  The Court granted Mr. Shah’s motion and appointed Arbitrator # 3.  The Court also entered a discovery schedule, and entered an order directing the parties as to the manner in which Arbitrator # 3’s retainer would be paid.  Despite Mrs. Shah’s apparent attempts to move forward with Arbitrator # 3, Mr. Shah did nothing.  Eventually, Arbitrator # 3 wrote to the Court to, understandably, advise that he would not arbitrate until his retainer agreement was signed.  Neither party signed it.
  • In 2015 (now twelve years after the parties agreed to arbitrate), Mr. Shah once again asked the Court to compel the arbitration, this time asking that Arbitrator # 2 be appointed.  Mrs. Shah cross-moved.  Among other things, she asked the Court to terminate the parties’ obligation to arbitrate.  The Court granted Mrs. Shah’s request, reasoning that – twelve years later – the parties were in very different financial circumstances and could not be made to arbitrate at this point.  The Court also opined that the parties had waived their rights to arbitrate.
  • Mr. Shah moved for reconsideration of the Court’s Order, which the Court denied.

That brings us to Mr. Shah’s appeal.  In pertinent part, Mr. Shah argued that the decision of the lower court should be reversed because the judge incorrectly concluded that the parties had waived their rights to arbitrate due, essentially, to the passage of time.

The Appellate Division agreed with the judge below and concluded that the parties had waived their rights to arbitrate.  This is an interesting conclusion in light of the definition of a waiver:

Waiver is the voluntary and intentional relinquishment of a known right. The intent to waive need not be stated expressly, provided the circumstances clearly show that the party knew of the right and then abandoned it, either by design or indifference. [internal citations omitted].

Indeed, under the facts of the Shah case, there was no question that the parties had unduly delayed in proceeding to arbitration.  Mr. Shah apparently admitted to the Court that he was unhappy with Arbitrator # 3’s fee and therefore did nothing to move forward with the court-appointed arbitrator he had asked for in the first place.

At the same time, there were efforts over the years to move forward with the arbitration.  The major consideration the Appellate Division seems to have made was the amount of time that had passed, regardless of the fact that the parties had – at various points over that time period – made efforts to move forward with the arbitration.  One can imagine that this could be a closer call under even a slightly different set of facts.  For example, what if the facts were identical, but had occurred over the course of five years instead of twelve?

What is clear is that at some point, if parties do not arbitrate then the right to do so is waived, even if the parties have an agreement in place to proceed to arbitration, and one of them wants to enforce it.


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.

Sometimes, the location of a case – for one reason or another – can be just as important as anything else.  Perhaps the law is different and more beneficial to one side in a particular location; possibly, one place is simply more convenient for purposes of introducing evidence at a trial or merely having all parties be present in court.

In my practice, I have seen this issue come up more and more.  With our increasing mobility, the questions of where a case should be conducted and what court has jurisdiction has become increasingly complex.  This is especially so in cases involving children who reside with the primary parent in another state from the other parent.  Often, this can result in a tug of war between the courts in both states over where post-judgment issues related to the children should be addressed.

One recent case out of the trial court in Essex County squarely addressed this issue.  In B.G. v. L.H., the parties were divorced in New Jersey, but had specifically agreed when they divorced that the mother and children could relocate to Massachusetts, which they did.  The agreement also called for a parenting time schedule which afforded the father parenting time in Massachusetts and in New Jersey, which he exercised.  Significantly, the agreement did address the question of jurisdiction quite clearly, stating:

Each of the parties hereby irrevocably consents and submits to the jurisdiction of the courts of the State of New Jersey for any future custody and parenting time disputes, so long as one parent resides in New Jersey.

After the wife and children relocated to Massachusetts, the husband continued to reside in New Jersey and, as noted above, to exercise parenting time with the children in New Jersey. Eventually, issues arose regarding the children and their time with their father.  This included two complaints to the Massachusetts Department of Children and Family by one child’s teacher and the other child’s doctor.  The Massachusetts DCF conducted an investigation and concluded that the allegations were unsubstantiated.  However, this prompted the Mother to institute proceedings regarding custody and parenting time in the Probate and Family Court for the Commonwealth of Massachusetts.

And so the basic question arose:  Should the custody and parenting time issues that arose be decided by a Massachusetts Court, or a New Jersey Court?  In this particular case, the answer may seem obvious.  The parties agreed, “irrevocably,” that as long as either of them resided in New Jersey, the courts of the State of New Jersey would have jurisdiction over custody and parenting time disputes.  It was not disputed that the Father continued to reside in New Jersey.  Therefore, based on their agreement, it would seem that New Jersey should continue to have jurisdiction over custody and parenting time issues.

However, the trial court judge went further and conducted an analysis of the issue as though there was no provision in the parties’ Matrimonial Settlement Agreement which addressed this issue.  This is because only the Court can determine if it should relinquish jurisdiction, even where an agreement exists (although the existence of an agreement is an important factor the court must consider, as discussed below).  Judge Passamano’s opinion provides a good overview of how the question of jurisdiction over custody and parenting time issues should be addressed under New Jersey’s Uniform Child Custody Jurisdiction and Enforcement Act (NJUCCJEA):

  1.  Did New Jersey acquire continuing, exclusive jurisdiction over child custody issues?
  2. If so, have circumstances changed so as to divest New Jersey of continuing, exclusive jurisdiction?
  3. And, if circumstances have not changed, then is New Jersey no longer a convenient forum to decide these issues, and is the other state the appropriate forum?

Notably, this procedure prevents a party from doing what the Mother in B.G. v. L.H. tried to do – simply filing an application to modify custody/parenting time in another state’s court.  The state court which originally had jurisdiction must conduct this analysis and affirmatively relinquish its jurisdiction.

Part 1:  Continuing and Exclusive Jurisdiction

Generally speaking, a Court acquires continuing and exclusive jurisdiction as to custody issues when it makes an initial custody determination, or when it modifies a custody determination made by another state as authorized by law.  In B.G. v. L.H., the initial custody determination was made in New Jersey, by a New Jersey Court.  Therefore, the Court proceeded to the next question.

Part 2:  Change of Circumstances

According to the NJUCCJEA, circumstances will have changed so as to divest New Jersey of jurisdiction when either of the following occur.

  1.  A NJ court determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with New Jersey and that substantial evidence is no longer available in New Jersey concerning the child’s care, protection, training, and personal relationships; or
  2. A court of NJ or a court of another state determines that neither the child, nor a parent, nor any person acting as a parent presently resides in New Jersey

The question of whether there is a significant connection with the state cannot merely be based on whether one party continues to reside in NJ.  Instead, it goes to the relationship between the child and the parent that remains in NJ.  This is where the distinction between what the parties in B.G. v. L.H. contracted for and what the law dictates lies.  The agreement between the parties called merely for the continued residency of one parent in New Jersey, but absent an agreement, the Court must look deeper at the relationship between the parent and the child.  The judge in B.G. v. L.H. opined that, since the children in that case exercised parenting time with the Father in NJ, there existed the requisite significant connection in any event.

Part 3:  Which is the Convenient Forum?

Having decided in favor of New Jersey on the first to issues, a New Jersey Court can still determine that it should relinquish jurisdiction if it finds that it is not a convenient forum, AND that the other state is the appropriate forum.  Pursuant to N.J.S.A. 2A:34-71(b), the factors that the Court considers in answering this question are:

  1. Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
  2. The length of time the child has resided outside of the State;
  3. The distance between the court in this State and the court in the state that would assume jurisdiction;
  4. The relative financial circumstances of the parties;
  5. Any agreement of the parties as to which state should assume jurisdiction;
  6. The nature and location of the evidence required to resolve the pending litigation, including the testimony of the child;
  7. The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
  8. The familiarity of the court of each state with the facts and issues of the pending litigation.

Again, in B.G. v. L.H., Factor 5 makes it impossible to ignore the fact that the parties explicitly, knowingly, and voluntarily, entered into an agreement that New Jersey would continue to have jurisdiction over custody and parenting time disputes so long as either of the parents (obviously, the Father in this case) merely resided in New Jersey.  Although the Court must give some due consideration to the other factors, so long as the best interests of the children – which must always be paramount – are not deleteriously affected by jurisdiction remaining in New Jersey, it would be hard to argue that there should be any other result in the face of such clear cut language in the agreement.

Practice Issues

The B.G. v. L.H. case provides a good lesson to practitioners about the importance of addressing this issue in agreements, especially if one parent’s relocation to another state may be on the horizon.  If you are on the side of the potentially relocating custodial parent, know that a provision like the one the parties entered into in this case may make it more difficult for your client in the event he or she wants New Jersey to relinquish jurisdiction.  By the same token, if you represent a party who may eventually be defending against an attempt to remove jurisdiction to another state, language like that included in the agreement in B.G. v. L.H. will be helpful to your client.


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.

In 2014, I authored a post on this blog entitled Stern Revisited – Using the Shareholder Agreement to Determine Value.  I noted then that it seemed that after the Appellate Division’s decision in Brown v. Brown  which changed the landscape by doing away with discounts and essentially ushered in more of a value to the holder construct, that the consideration of an agreement was dead.  Rather, a myopic view of methodologies focused on income seemed to be the norm – disregarding all else.

This was the case even though there was New Jersey Supreme Court case law  (Stern v. Stern and Bowen v. Bowen to be precise ) that suggests the use of a “trustworthy” buy-sell agreement to establish value, noting that in some instances it may appropriately establish a presumptive value of a party’s interest.  Often the issue is what is a “trustworthy” buy-sell agreement?  What makes an agreement trustworthy?  It is updated frequently and routinely used when people enter and exit a business.  In my 2014 post, I blogged about the use of the buy-sell agreement in deciding the value of a medical practice where there had been 32 purchases or sales of interests in the practice in the recent past.  In the case cited in that blog, the Appellate Division noted “We find no error in the judge’s considered decision that the practice’s regularly updated corporate agreements were a better measure of value than plaintiff’s expert’s projection of cash flows through 2020, discounted by a rate chosen on the basis of U.S. Treasury bonds, augmented by selected risk premiums and reduced by an assumed long-term growth rate.”  Simply put, what the doctor would have received if he left the practice was used as the value.  Unlike many valuation calculations, there was no subjectivity to that number.  But this case was an unreported decision which means that it wasn’t precedential and there haven’t been many, if any, reported decision on the issue in some time.

That is, until August of 2017 when the Slutsky case was decided.  In that case, the husband was a partner at a major New Jersey law firm.  Though his income was substantial, he was not a rainmaker, and thus, worked on business generated by other attorneys at his firm.  In valuing the husband’s interest in the firm, the big issue was whether there was goodwill to be added to the amount that the husband would have been due under the firm’s partnership agreement.  The wife’s expert added goodwill; the husband’s expert did not.  The trial judge sided with the wife’s expert finding it “”incredible” the firm had no goodwill value. ”  The Appellate Division disagreed and reversed.

The Court noted that:

As Dugan instructs, the start of the examination of goodwill considers whether excess earnings exist. Dugan, supra, 92 N.J. at 439-40. This was a highly contested issue on which the experts used slightly different resources and offered greatly disparate opinions. Factual findings regarding this pivotal question were not provided.

Moreover, the court returned to Stern and the husband’s argument in that case regarding  “the propriety of considering his earning capacity as being a separately identified and distinct item of property” and pointed out the passage in Stern that held as follows:

[A] person’s earning capacity, even where its development has been aided and enhanced by the other spouse, as is here the case, should not be recognized as a separate, particular item of property within the meaning of N.J.S.A. 2A:34-23. Potential earning capacity is doubtless a factor to be considered by a trial judge in determining what distribution will be “equitable” and it is even more obviously relevant upon the issue of alimony. But it should not be deemed property as such within the meaning of the statute.

Of note, in this case the Appellate Division framed the real issue as follows:

Here, a nuanced valuation methodology is required because defendant is an equity partner in a large firm, who generally is not responsible for originations, and who is bound by the firm policies and a shareholder agreement.

In this case, the Appellate Division found that the formula in the firm’s agreement actually captured good will.  In addition, the court noted:

We believe the trial judge misunderstood Hoberman’s conclusion, as suggesting goodwill did not exist for the firm. Actually, Hoberman’s opinion asserted the TCA of each equity partner accounted for any goodwill. Further, plaintiff, who was not an originator but a worker in a highly specialized legal area, was actually paid what a similarly skilled lawyer would be paid. Thus, defendant’s compensation matched his earning capacity, nothing more. This view considered whether defendant’s “future earning capacity has been enhanced because reputation leads to probable future patronage from existing and potential clients” and concluded it did not. Accordingly, there was no additional component of goodwill. Id. at 433.

In this matter, any analysis of goodwill must evaluate the firm’s shareholder’s agreement to determine whether it is an appropriate measure of the total firm value, including goodwill. That formula computes an exiting partner’s interest, calculated as a portion of the firm’s excess earnings. See Levy, supra, 164 N.J. Super. at 534. The Court must discern the objectiveness and accuracy of the formula and calculations. When “it is established that the books of the firm are well kept and that the value of partners’ interests are in fact periodically and carefully reviewed, then the presumption to which we have referred should be subject to effective attack only upon the submission of clear and convincing proofs.” Stern, supra, 66 N.J. at 347.

The take away here is that Stern lives now for the same reasons that that it was originally decided.  If a regularly updated and followed agreement was disregarded, the titled spouse would be stuck getting only what the agreement allows, which the other spouse could wind up with a lot more, or less, if valuation methodologies with subjective components are used.  On the other hand, say that there are two similarly situated law firm partners with a similar book of business and making similar money, but one worked at a large firm with a regularly updated and followed shareholders agreement and the other at a smaller firm without a formal agreement, it seems like a safe bet that the values of their practices would be extremely different.  One other question to ponder.  Would the result have been different if the husband here was a major rainmaker?  Perhaps that will be addressed in a future case.

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

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We have all had those cases where any request that we made, big or small, has been rejected by the other side and any requests that our client has made to her/his spouse is similarly rejected.  They don’t agree to informally provide discovery that they will eventually have to provide formally (and then maybe even not then).  They won’t agree to a mediator because you proposed him or her.  They won’t agree to a joint expert, for the same reason.  They wont agree to pay any or the right amount of support.  They won’t agree to parenting time.  They wont agree to the slightest deviations to parenting time.  Post-judgment, when an Agreement says that the parties must agree on something before the other side will have to pay “with consent to not be unreasonably withheld”, they will not agree to anything, nor even make proposals for the other side to agree to.

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This is bad when the litigant’s do this.  It is worse when the lawyers do it, especially when there is no advantage, tactical or otherwise, not to be agreeable.  I have a matter now where the other party simply refuses to answer discovery or do anything whatsoever, and there is no benefit to him in any way, shape or form.  Sometimes you hear “my client wont let me agree to an adjournment” which, quite frankly, is rarely, if ever, should be the basis of denying a reasonable adjournment request.  But all too often, the lawyer becomes the instrument of the client’s bad behavior or general inability to reasonably agree to anything.

I recently heard a story about a party rejecting out of hand a Consent Order providing the relief that he asked for and got, simply because it was drafted by the other attorney.  Instead of getting it done, his attorney said “why did you even bother since he wont sign anything unless I draft it.”  Think about that.  He was willing to cut off his nose to spite his face, and put himself in a more precarious position, simply because of who the messenger was, ignoring the message completely.

This can permeate every part of a case.  How many times have we seen bogus motions to quash of completely discoverable materials (i.e. income information, current bank account information, etc. – i.e. the stuff that you have a duty to update until the end of a case, if requested)?  How many times have we had to file repeated motions to compel or repeated enforcement motions?  How many times has an adversary apologized for taking a ridiculous position forcing you to file a motion rather than forcing their client to do the right thing?

On the rare occasion that the disagreeable person actually makes a settlement proposal that your client agrees to, how many times have you seen the offer be walked back or the deal otherwise go south because the proposal was really made in bad faith and was never expected to be accepted, and the offering party now thinks that the offer was too good if your client actually accepted.

 

Are their any benefits to saying no to everything?  Assuming the clients can pay, maybe the attorneys do ok.   Or do they?  When your reputation is damaged and/or your stature and relationship with your judge and your adversary takes a hit, is it worth it?  For the parties, unless both parties are equally disagreeable, and this happens sometimes, the court eventually figures out who the difficult party is.  Do you want that impression guiding a judge’s substantive or counsel fee decisions.

Now I am not suggesting that you need to agree on everything that the other party says.  There will be good faith disputes and disagreements that will have to be resolved by a judge or arbitrator.  But, in most cases unless there is an emergency or some really good strategic reason, what is the harm in trying to resolve issues, big and small, before just saying “no,”  It doesn’t make you weak, it makes you smart.

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

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Ah, technology.  In this modern world, we navigate the roads on our phones instead of a map.  We talk to a cylindrical tube to tell it to order more toilet paper for us, tell us the weather, read us the news, or turn on the lights.  We don’t remember anyone’s phone number because they are all stored for us on our phones.  And we obtain personal jurisdiction over an out-of-state defendant via Facebook.

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The legal world is, perhaps, notorious for its luddite tendencies.  One need only step into any lawyer’s office to see reams of paper everywhere – stacked on the floor (okay maybe that’s just me), piled on the desk, packed into boxes.  But in terms of the use of social media as a mechanism for exercising “long-arm” jurisdiction over a defendant, the law appears to be catching up with modern means of communication as more and more jurisdictions are allowing the use of Facebook and other social media platforms to serve as a form of substituted service.

Personal Jurisdiction = Sufficient Minimum Contacts + Service of Process

For those who didn’t take Civil Procedure, it is important to understand that there are rules (a lot of them!) about who is subject to the jurisdiction of a particular Court.  Every state in the country has the ability to exercise “long-arm” jurisdiction over parties who do not reside within it, but only if certain rules are followed and conditions met.

In order for a New Jersey court to exercise jurisdiction over a person who does not live in this state, that person must have sufficient minimum contacts (a phrase drilled into every first-year law student’s head for all of time) with New Jersey, and must also be properly served with process.  Broadly speaking, the “minimum contacts” test is satisfied if the individual could or should reasonably expect to be brought into court in the state.

Importantly, there are limits on what types of actions a court can exercise its jurisdiction over, and these are based upon the type and scope of the minimum contacts the out-of-state defendant has with the state.  For example, if a PA resident has a car accident in NJ, and the nexus of personal jurisdiction is that the PA resident drove into NJ where the accident occurred, then a New Jersey Court would have jurisdiction over any legal claims arising out of the car accident.  But, if someone wanted to sue the PA resident for some other reason in NJ, there would have to be some other finding of minimum contact related to that cause of action here in NJ.

There also has to be service of process.  The purpose of this requirement is two-fold.  First, service must be reasonably calculated to apprise the party of the pending legal action.  Second, it must allow the party an adequate opportunity to respond.  Simply speaking, under our Court Rules, personal service (i.e. actually delivering the process to the person or a representative) is the preferred form of service.  Under certain conditions, service can also be made by mail.  But then, there is a third option.  If service cannot be made personally or by mail, then it can be made “as provided by a court order, consistent with due process of law.”  In other words, the Court can determine an alternate method of service, so long as this method accomplishes the dual purposes of service of process: the manner of service must be reasonably calculated to let the party know about the pending legal action and the claims against him/her, and must allow the defendant the opportunity to respond.

Recent Court Ruling Approves Service of Process Via Facebook

In a recent published (precedential) decision, K.A. and K.I.A. v. J.L, a New Jersey trial court found that – under the circumstances – service by Facebook would be sufficient to confer personal jurisdiction over the defendant.  In that case, K.A. and K.I.A. were adoptive parents of their son, referred to as “Z.A.”  Z.A.’s biological father had contacted not only Z.A. but also K.A. and other family members (all of whom were NJ residents) on Facebook and had disclosed to Z.A. on Instagram that Z.A. was adopted and told him the identity of his birth mother and the location of his birth.  J.L. also obtained photographs of Z.A. from K.A.’s Facebook page and published them on his own page, holding Z.A. out as his son.  The plaintiff’s commenced an action to enjoin J.L. from holding Z.A. out as his son, to enjoin him from contacting them and Z.A., and to compel J.L. to remove information pertaining to Z.A. that he allegedly published online.

The plaintiff’s attorney sent cease and desist letters to both of the defendant’s last known addresses, which were in Pennsylvania, by certified and regular mail.  Under the Court Rules, this is an acceptable method of service so long as the regular mail is not returned to the sender, and so long as an answer or response is made by the defendant.  In this case, both of the certified mailings were unclaimed and, although the regular mail was not returned, no answer was made by the defendant.

Because the defendant, based upon the conduct forming the basis of the claims against him, was evidently an active Facebook user, the plaintiffs sought permission from the Court to effect substituted service by use of Facebook.

Judge Hansbury found that under the circumstances, such service would meet the requirements to confer personal jurisdiction over the defendant with regard to the claims against him based on the following:

  • Personal Jurisdiction:  Judge Hansbury relied upon a Third Circuit case, Toys R’ Us, Inc. v. Step Two, S.A., 318 F.3d 446 (3d Cir. 2003), which held that a defendant’s intentional interaction with the forum state via the internet is sufficient to confer jurisdiction.  In the case before the Court, the defendant intentionally reached out to various members of the plaintiffs’ family who are NJ residents, using his social media accounts.  Any harm arising from these intentional contacts would clearly be concentrated in NJ.  Therefore, the Court found that it could exercise personal jurisdiction over the defendant by virtue of his intentional contact with the State via the internet.
  • Scope of Personal Jurisdiction:  Because the defendant’s contacts with the state were precisely those that gave rise to the causes of action the plaintiffs pursued against the defendant, the Court found that the scope of its personal jurisdiction over the defendant included these claims, though it acknowledged it did not have personal jurisdiction over the defendant as to any claims unrelated to the alleged contact with the plaintiffs and their family members.
  • Service:  Under the facts of the case, service of process via Facebook would accomplish the dual purposes of the service of process requirements discussed above.  The Court reasoned that because the defendant solely used his Facebook and Instagram accounts as the “conduits of the purported harm,” service via Facebook was reasonably calculated to apprise the defendant of the pendency of the action and afford him an opportunity to respond.  The Court observed that the plaintiffs had demonstrated that the defendant’s Facebook account was active.  Further, the Court noted that Facebook includes a feature that allows the sender of a message to see whether the recipient has opened and received the message, which would indicate whether the defendant was actually notified of the case.

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Limitations on the Use of Facebook to Confer Personal Jurisdiction

It is important to note that Judge Hansbury’s ruling does not mean that service of process via Facebook is acceptable as a primary method of service or even that it is available in every case.  Central to the ruling here is that personal service could not be affected, nor could service by mail.  Moreover, it was due to the particular facts of this case – specifically, that it was evident the defendant had an active Facebook account and that the Facebook account was the primary means of the harm alleged in the case – that caused the judge to believe it would be an appropriate means of substituted service.  However, given the widespread use of Facebook, the ruling suggests that it can be used in other cases as a means of substituted service and is something to keep in mind in cases where out-of-state defendants cannot be served by traditional methods.


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Jessica 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.

Last year I blogged on tri-parenting, or the concept whereby three parents agree to raise a child or children together as a family, with regard to the published New Jersey trial court decision of D.G. and S.H. v. K.S. My previous blog post can be found here.

In that matter, D.G. and his husband, S.H., along with their friend K.S. embarked on a journey of conceiving and raising a child together. The parties agreed to use D.G.’s sperm and K.S.’s egg, as they had known each other longer, and they would give the child S.H.’s surname. All three parties parented the child and were effectively able to do so for most of the child’s early life, until K.S. announced that she had fallen in love with A.A., who she intended to marry, and that she wanted to relocate with the child to California where A.A. resided. When the parties’ could not agree on a “tri-parenting plan”, D.G. and S.H. filed a Complaint seeking legal and physical custody of the child, parenting time, and that S.H. (who did not have any biological ties to the child), was the child’s legal and psychological parent.

After 19 days of trial, the Court found that S.H. was in fact the child’s psychological parent (although K.S. also stipulated to this on the eve of trial), and concluded that D.G., S.H. and K.S. should have equal legal and residential custody of the child, and the court established a 50/50 parenting time schedule. However, the court denied S.H.’s request for legal parentage as a matter of law on the basis that the court does not have jurisdiction to create a new recognition of legal parentage other than what already exists—genetic contribution, adoption, or gestational primacy. Further, although the best interest of the child standard is used for various family law determinations, it is not a factor in defining parenthood under the Parentage Act. (N.J.S.A. 9:17:38 through 9:17-59).

I concluded my prior post by stating that

With the evolution of today’s family, “tri-parenting” and other, similar custody and parenting time situations will emerge, creating a new, unique set of issues for families who are dissolving/separating. As the role of “parent” expands, it will be interesting to see how the courts will progress to handle these delicate issues.

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On March 8, 2017, The New York Supreme Court of Suffolk County also granted tri-legal custody and visitation, in the matter Dawn M. v. Michael M.

In that matter, Dawn and Michael, a married couple, began a polyamorous relationship with Dawn’s friend, Audria. All three parties considered themselves a family and decided to have a child together. Since Dawn was unable to have a child, the parties decided that Michael and Audria would try to conceive. The credible evidence presented to the Court established that all three parties agreed, prior to a child being conceived, that they would raise the child together as tri-parents.

Audria became pregnant and gave birth to a boy, J.M.; however shortly thereafter the relationship between the parties became strained and Dawn and Audria moved out together with J.M. Michael commenced a divorce action against Dawn, and asserted he no longer considered Dawn to be J.M.’s parent.

The court found credible the testimony of Audria and Dawn that J.M. was raised with two mothers and that he continues to the present day to call both “mommy.” The court further found that in all respects, during the first eighteen months of J.M.’s life when Dawn, Michael and Audria all lived together, and thereafter after their separation, Dawn acted as a joint mother with Audria and that they all taught the child that he has two mothers. The Court also conducted an in camera interview with J.M., which left no doubt in the Court’s mind that he considered both Dawn and Audria to be equal “mommies” and that he would be devastated if he were not able to see Dawn.

Although not a biological parent or an adoptive parent, Dawn argued that she has been allowed to act as J.M.’s mother by both Audria and Michael, that she has always lived with J.M., J.M. has known her as his mom since his birth and that the best interest of J.M. dictates that she be given shared legal custody and visitation with him. Audria, J.M.’s biological mother, strongly agrees. Dawn further argued, along with the child’s attorney, that Michael should be estopped from opposing this application because he has created and fostered this situation by voluntarily agreeing, before the child was conceived, to raise him with three parents, and that Michael has acted consistent with this agreement by allowing the child to understand that he has two mothers.

The Court found that the best interests of J.M. would be served by granted Dawn shared legal custody, stating that “J.M. needs a continuing relationship with the [Dawn] as his mother and that relationship cannot be left to depend on the consent or whim of either his biological mother or father. Anything less will promote great hardship and suffering for J.M.”, and established a tri-custodial arrangement, as Michael and Audria already shared joint legal custody.”

The Court concluded that Dawn, Michael and Audria

created this unconventional family dynamic by agreeing to have a child together and by raising J.M. with two mothers. The Court therefore finds that J.M.’s best interests cry out for an assurance that he will be allowed a continued relationship with [Dawn]. No one told these three people to create this unique relationship. Nor did anyone tell [Michael] to conceive a child with his wife’s best friend or to raise that child knowing two women as his mother. [Michael]’s assertion that [Dawn] should not have legal visitation with J.M. is unconscionable given J.M.’s bond with [Dawn] and [Michael]’s role in creating this bond. A person simply is responsible for the natural and foreseeable consequences of his or her actions especially when the best interest of a child is involved. Reason and justice dictate that [Michael] should be estopped from arguing that this woman, whom he has fostered and orchestrated to be his child’s mother, be denied legal visitation and custody…To order anything other than joint custody could potentially facilitate [Dawn]’s removal from J.M.’s life and that would have a devastating consequence to this child.”

Although the issue of legal parentage was not discussed in the New York Court opinion, it appears that the New York Court is as progressive as the New Jersey Court in moving  towards alternative custody arrangements in light of the evolution of today’s families.

While we do not typically blog on cases outside of the family court, a recent law division case examined the child support lien statute, N.J.S.A. 2A:56.23b and its impact on settling a personal injury case and on settlements in general.  The statute requires that a child support judgment search be performed to determine if a plaintiff in a given lawsuit has an outstanding child support obligation.  If he or she does, then the statute requires that any “net proceeds of a settlement” (i.e. the proceeds left after the payment of attorney’s fees, witnesses’ fees, court costs, and other related costs associated with the lawsuit are deducted from the settlement award) in excess of $2,000 be paid in either full or partial satisfaction of the outstanding child support arrears.  For example, let’s say $10,000 was owed in child support arrears, and a given plaintiff’s litigation costs totaled $10,000.  If the plaintiff took a $20,000 settlement, then $10,000 would go to pay his litigation costs, $8,000 would go to pay off the child support arrears, and the plaintiff would get to keep $2,000 (but would still have $2,000 in child support arrears).

In Smiley v. Thomas, et. al. , the plaintiff sued the defendants for personal injury as a result of a car accident.  He had also entered into a contingent fee agreement with his counsel, meaning that they agreed to take a fixed percentage of whatever the plaintiff was awarded in settlement or after a trial as their fee, rather than charging the plaintiff at their hourly rates.

Eventually, the defendants made a settlement offer of $25,000.  The only problem was, after the child support judgment search was conducted pursuant to the statute, it was discovered that the plaintiff had outstanding child support arrears in the amount of $19,306.04.  After satisfaction of the arrears and payment to his attorneys, the plaintiff would be left with $2,000; in fact, because his counsel fees and litigation costs exceeded the difference between the child support owed and the settlement amount, he would also be left with some unpaid child support arrears because he would have to pay counsel first.  The plaintiff refused to accept the settlement if, at the end of the day, it meant that he would only walk away with $2,000.

"No Deal"
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But, evidently, the plaintiff’s attorney really wanted him to settle his case.  So badly, in fact, that the attorney was willing to reduce his fee.  So, the attorney asked the Court to modify the fee agreement accordingly; but, and here’s the rub, the attorney also asked the Court to call the money that the plaintiff would realize as a result of this reduction something other than “net settlement proceeds” so that they would not be subject to the child support lien by operation of law.

The Court weighed two important competing interests.  On the one hand, Courts love settlements!  Settlements make both parties feel happy (or equally unhappy) with the outcome and therefore (hopefully) curb future or continued litigation.  On the other hand, our case law is replete with decisions affirming over and over again a parent’s obligation to financially support his or her children and there is plenty of case law carving out exceptions, identifying specific needs of the children that should be included in support, and generally providing guidance as to arrival at an appropriate child support arrangement (seriously, there are a lot of these decisions and we’ve blogged on them here, here, here, here, here, and many more times).

Ultimately, the Court determined that a parent’s obligation to financially support his or her children trumps the competing interest in promoting settlement.  The Court found that it had the obligation to call a spade a spade.  It did not, and found that it could not, call the money that the plaintiff would receive as a result of the reduced counsel fee award something other than “net proceeds from settlement” in order to help the plaintiff evade his child support obligation.  To do so would be in direct contravention of the very purpose of the child support judgment lien statute.


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.

On December 5, 2016, an extremely interesting reported (precedential) opinion was released by the Appellate Division in the matter of J.S. v. D.S.  The opinion was remarkable for two reasons, one procedural and one substantive.  On the procedural side, what was interesting was that the Appellate Division proceeded to decide the case even though the matter was settled and the parties sought to have the appeal dismissed because the Court determined that “the interests of justice require a disposition of the appeal’s merits.”

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The substantively interesting part of the opinion was the holding that parties cannot consent to the entry of a domestic violence Final Restraining Order (“FRO”).  Rather, because of the far reaching implications of an FRO, a trial court must make the requisite finding that an act of domestic violence has occurred.

In this case, after the entry of a Temporary Restraining Order (“TRO”), at the date of the FRO hearing, the parties reached an agreement which called for defendant’s consent to an FRO in exchange for plaintiff’s consent to defendant’s exclusive possession of the marital home pending further order in the matrimonial proceedings.  Rather than question the plaintiff about the act of domestic violence or the defendant to see if there was agreement that the act had occurred, but rather only asked the usual questions regarding the voluntariness of the agreement.  Satisfied that the agreement was voluntary, an FRO was entered.  The defendant then filed a timely appeal asserting that the FRO was void ab initio (i.e. from the outset) because the judge mistakenly issued the FRO without taking testimony about the allegations, without finding an act of domestic violence occurred, and without determining plaintiff required protection from defendant.

Apparently, while the appeal was pending, the same or similar agreement to continue the FRO was reached again and the parties tried to dismiss the appeal but the Appellate Division would not allow it finding:

… In light of the strong public policies underlying the Act, we choose to exercise our discretion to consider the appeal on its merits. We have an obligation to ensure the FRO was legitimately entered and should not permit its wrongful perpetuation simply because it may have become a useful chip in the settlement of the parties’ matrimonial disputes.

Having rejected the parties’ request that we dismiss the appeal and having resolved to consider the merits of this appeal, we agree with what defendant previously argued: the FRO can no longer stand. A domestic violence final restraining order may not be entered by consent or without a factual foundation. See Franklin v. Sloskey, 385 N.J. Super. 534, 540-41 (App. Div. 2006).  Because the trial judge mistakenly failed to elicit a factual foundation, failed to find domestic violence occurred, and failed to determine whether plaintiff required protection as a result of defendant’s conduct, we vacate the FRO.

The matter was then remanded for an FRO hearing.

Interestingly, in a footnote, the Appellate Division provided a road map, as it were, for parties that want to consent to an FRO, when it stated:

We do not mean to suggest every domestic violence action must be tried to a conclusion or that a defendant may not accede to relief sought by a plaintiff. Nothing prevents a defendant from declining to defend against such an action or from acknowledging under oath the commission of an act of domestic violence. The consequences, however, are too serious to permit entry of an FRO merely by consent. Before entering an FRO, a court must ensure there exists an adequate factual foundation and that the defendant understands the consequences of the decision not to contest the matter. A court must also find that the FRO is necessary “to protect the plaintiff from an immediate danger or to prevent further abuse.” Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006). (Emphasis added).

The take away from this case is that FROs are serious matters and that care must be taken if they are going to be used as bargaining chips to settle issues on either an interim or final basis.

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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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The standard for entry of a Final Restraining Order (FRO) under the NJ Prevention of Domestic Violence has been long established by the Courts (and discussed many times on this blog); under the seminal case Silver v. Silver, in order to obtain an FRO, the plaintiff must have a qualifying relationship with the defendant, and also has the burden to establish that:

  1. The defendant committed one or more of the predicate acts of domestic violence identified in the Prevention of Domestic Violence Act; and
  2. There is a need for the protection of an FRO going forward.

In a recent published (precedential) decision, A.M.C. v. P.B., the Appellate Division addressed the second prong of that test and the misapplication of the facts to the law that led to the trial court denying the plaintiff’s request for a Final Restraining Order.  In this case, the plaintiff filed a temporary restraining order alleging that the defendant had committed the predicate acts of harassment, assault, and terroristic threats.  At trial, the Court made a factual finding that the predicate act of assault had occurred.  More specifically, the Court found that the act of assault that formed the predicate act of violence for the complaint had occurred and that the defendant had assaulted the plaintiff in an attempt to prevent her from fleeing the marital home.  Further, the trial Court found that a prior act of assault had occurred three weeks earlier.

Despite making those factual findings, the trial court denied the Final Restraining Order because it found that – in spite of two acts of assault that had occurred within a three week period – the plaintiff did not need the protection of an FRO to prevent the defendant from committing further acts of domestic violence against her.  The trial court made this finding based chiefly on 1) the fact that the defendant had not contacted the plaintiff in the 10 days between her having filed the TRO and the Final Restraining Order hearing; 2) the parties’ marriage and, indeed, relationship, was short-term; and 3) the parties did not have children together, which was seen by the court as a mitigating factor because, the judge reasoned, there was less of a likelihood of interaction between the parties since they would not have to go on to co-parent together.

The plaintiff appealed.  On appeal, the Appellate Division squarely addressed the question, “Despite finding that a defendant committed one of the predicate acts listed in N.J.S.A.2C:25-19a, when may a court properly refuse to issue restraints?”  Hearkening back to the seminal Silver case itself, the Appellate Division answered that question by holding that when the predicate acts involves a violent offense – such as assault – and the Court has found that it occurred, then “the decision to issue an FRO ‘is most often perfunctory and self-evident.'” (quoting Silver at p. 127).  The Appellate Division reversed; it found that, in determining that the plaintiff did not need the protection of an FRO going forward, the trial court had “no rational basis” for relying on the length of the marriage, the fact that the parties have no children, and the fact that the defendant had not contacted the plaintiff between when she fled the home and the day of the FRO hearing.  And this makes sense:  if it has been found that a given defendant has a propensity for physical violence against the plaintiff, this should be more persuasive than any of the facts that the trial court relied upon when it made its decision.  Just because a relationship is short-term and there are no children, or the defendant didn’t contact the plaintiff during the ten day period between issuance of a TRO and the FRO hearing, doesn’t lessen the likelihood that the defendant will target the plaintiff with physical violence again.

The takeaway?  The Appellate Division has held that, where the court finds that a predicate act of physical violence (for example, assault or sexual assault) has occurred, the fact that the act was violent in nature should be weighted heavily by the trial judge when assessing whether there is a need for the protection of the FRO going forward, and that an FRO should generally be issued in these instances.


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.

In law school, lawyers begin to be engrained with the concept of ethical duty of zealous advocacy.  While this concept used to be in the Rules of Professional Conduct, over time, it has been removed.  It has even been largely removed from the ABA’s Model Rules, upon which many State’s rules have been based upon, other than in statements in the Preamble that say, “As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system” and:

In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system. (Emphasis added).

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Nevertheless, time and again you hear the refrain, in defense of an aggressive if not improper action, position, etc. that “I was only being a zealous advocate.”  However, assuming for arguments sake, that the duty of zealous advocacy exists in either some express or implied way, there certainly seems to be a difference between zealous advocacy and overzealous advocacy.  While the former may be appropriate, the latter is often not.  Moreover, it can be very costly, both financially and emotionally for the parties.

In a recent matter, I have seen an attorney send subpoena after subpoena seeking records, that if obtained, would add nothing to her client’s case.  In some instances, it is more than a fishing expedition or seeking a needle in a haystack, as even if the records were produced, no matter what they said, they would have no probative value in the case.  Moreover, when the subpoenas were not responded to or not responded to the their liking, threats of contempt followed.  Even the seemingly appropriate subpoenas seem needless given that a third party with much greater resources had already done an investigation.  There is one thing about leaving no stone unturned when there is a possibility that the due diligence will be fruitful, and quite another when it is a clear waste of time and money, if not harassment of third parties, from the start.  In that case, the “my client just wants to be sure” defense may not really cut it.

What about the lawyer that lies to further their client’s interests.  I have previously done a blog entitled The Lawyer The Liar which discussed this improper practice.

How about taking and litigating a position that is either contrary to the law, contrary to the facts, or both, and refusing to give it up notwithstanding.  I have seen lawyers push these issues because their client wanted to, because they figured they could make money and/or they figured they would wear the other side down and force them to capitulate to be done.   There are many other examples that I am sure my colleagues can add about examples of overzealous advocacy.

When the offender is called on these tactics, they hide behind the “zealous advocacy” shield. The question to ponder is what is a court to do when zealous advocacy crosses the line to overzealous advocacy.  Whether or not this rises to an ethical issue, will a court make the other party whole or at least put a stop to it?  If not, are we not rewarding pushing the envelope?


 

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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