Passaic County Divorce Attorneys

They say a picture is worth a thousand words, and in the recently unpublished (not precedential) case of C.S. v. B. S., Judge Jones determined that 25-years’ worth of family pictures destroyed by a scorned ex-wife are also worth $5,000.00.

In C.S. v. B. S., the parties divorced after approximately 25 years of marriage. They had one child, who was emancipated. The parties’ entered into a Matrimonial Settlement Agreement, and agreed, among other things, that the husband would have the right to share in the family photographs and videos that were kept in the in the marital residence, where the wife continued to exclusively reside.

However, shortly after the parties’ divorce, the wife refused to allow plaintiff to have or copy any of the photos or videos of the marriage. The husband sent the wife an email requesting her cooperation to retrieve the photos and videos and she replied that she had disposed of them because he had allegedly been unfaithful during the marriage and no longer wanted to be reminded of him.

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The husband sought enforcement of his rights and damages for the wife’s breach of the marital settlement agreement and the Court scheduled the matter for a hearing. At the hearing, the Court did not accept the wife’s testimony that she returned the husband’s childhood pictures (one torn into pieces), completely skipping over the last 25 years of the husband’s life, due to her interpretation of the parties’ agreement. Further, the wife did not indicate how or when she disposed of the photos, but testified that she believed it was before the divorce. She could not answer why, if she disposed of the photos before the divorce, the settlement agreement provided for plaintiff to share in the photographs and videos. The Court concluded that the wife’s refusal to provide the husband with the photos and videos of the marriage was a violation of the husband’s rights.

So what is the husband’s remedy? Unfortunately, the 25 years of family photographs cannot be replaced, so the Court had the task of fashioning an appropriate remedy.

First, the Court found that, in divorce proceedings, there is an implicit duty of good faith and fair dealing between parties. This means that each party has an obligation to treat the other fairly and respectfully during the divorce process, including honoring each other’s rights to marital property and adhering to terms of settlement agreements and consent orders. Thus, the wife breached the duty of good faith and fair dealing by depriving the husband of the family photos and videos.

The Court came up with three scenarios based on the Wife’s testimony: (1) she disposed of the photos and videos after the entry of the marital settlement agreement; (2) she disposed of the photos and videos before the entry of the marital settlement agreement; and (3) the photos and videos were not destroyed and still exist.

The Court opined that under scenario 1, if the wife disposed of the photos and videos after the entry of the marital settlement agreement, such action is a violation of the husband’s rights under the express terms of the document.

Under scenario 2, if the wife disposed of the photos and videos before the entry of the marital settlement agreement, such action is a violation of the implicit obligation of fair dealing, as the wife could not have possibly honored the agreement regarding the sharing of the photos and videos if they no longer existed. Under this scenario, the wife’s conduct “would constitute more than a mere breach of contract, but an actual misrepresentation”. The court also added that, when parties file divorce pleadings, the property of the marriage is deemed, in custodia legia (i.e. property under control of the court) pending resolution. Thus, the wife’s complete disposal of the marital photos and videos during the divorce process is evidence of a lack of good faith and fair dealing.

Under scenario 3, if the photos and videos were not destroyed and still exist, the wife is committing the tort of conversion (i.e. the intentional exercise of dominion or control over a property which interferes with the legal right of another to possess or control same).

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Regardless as to which scenario was the truth, each entitled the husband to damages from the wife and thus the Court was next tasked with crafting a remedy for the husband. Generally, when a party wrongfully takes another’s property, the aggrieved party is entitled to damages, which are assessed under either a market value analysis or cost replacement analysis. However, in this case, due to the unique nature of the photos and videos neither of these analyses apply, since there is no market value or cost replacement value for personal family photos and videos. Therefore, financial compensation and/or reasonable sanctions are the most logical and available options in the Family Court, even though assigning an amount may prove complicated.

Prior to assessing financial compensation and/or reasonable sanctions in this type of scenario, there must be a foundation of evidence to support that:

(a)        the other party actually did take, damage or destroy the property, in violation of the aggrieved party’s rights;

(b)        the aggrieved party genuinely wanted the items in question; and

(c)        the violating party knew or should have known that the aggrieved party wanted the property and that such property had a particular personal value or significance.

Here, after a consideration of the parties’ testimony and other evidence before the Court, Judge Jones found that the wife, by disposing of or destroying the family photos and videos, met all of these factors and awarded the plaintiff $5,000.00.

Before concluding, Judge Jones reminded us that each case and each issue is fact-sensitive and that damages are to be assessed based on the specific facts of each case.

That being said, revenge comes with a price. Here, it was $5,000.00 and 25 years of lost memories, but let this be a warning: before you act, whether it be out of anger, spite, or revenge, think twice about how much it may cost you for that moment of satisfaction.

In today’s ever-increasing mobile society, divorced or separate families find themselves relocating for a variety of reasons, including employment opportunities, new relationships, financial incentives and to be closer to family.

But what happens after families relocate out-of-state and child custody issues arise? Which state has jurisdiction to hear the matter?

Background

In 1968, the Uniform Child Custody Jurisdiction Act (UCCJA) was promulgated in order to prevent parental interstate kidnapping and forum shopping by the non-custodial parent (i.e. attempting to secure a more favorable forum to litigate child custody and parenting time issues in order to obtain a better result) by creating a uniform system for states to determining interstate custody and parenting time jurisdictional issues. By 1981, all 50 states had adopted their version of the UCCJA.

However, in December 1980, prior to all 50 states adopting the UCCJA, Congress enacted the Parental Kidnapping Prevention Act (PKPA). The PKPA was enacted to address interstate custody jurisdictional problems that continued after the enactment of the UCCJA, but ended up being largely inconsistent with the UCCJA and created almost 30 years of conflicting case law.

To address both the problems stemming from the UCCJA and the PKPA, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) was created in 1997. To date, the UCCJEA has been adopted by 49 states and the District of Columbia (except for Massachusetts) and various U.S. territories.

Two of the major revisions made to the UCCJEA were the prioritization of home state jurisdiction and the vesting of exclusive, continuing jurisdiction in the State that entered an original/initial child custody order.

Home State Jurisdiction

The first major revision to the UCCJEA was the establishment of Initial Child Custody Jurisdiction or “home state” jurisdiction. “Home state” is defined as, “the State in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the State in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.” See Section 101 (7) of the UCCJEA.

Pursuant to Section 201 of the UCCJEA, in interstate child custody matters, a state is granted jurisdiction to make a child custody determination only if:

(1) The state was the “home state” of the child on the date of the commencement of the judicial proceedings, or was the home state of the child within the six (6) month period before the commencement of the judicial proceeding, and the although the child is not residing in the state, a parent or person acting as a parent continues to live in the state;

(2) A court of another state does not have jurisdiction, or the home state of the child has declined to exercise jurisdiction on the basis that this state is a more appropriate forum, and:

(a) The child and the child’s parents, or the child and at least one parent (or person acting as a parent) have a significant connection with the state, other than physical presence.

(b) Substantial evidence is available in this state concerning the child’s care, protection, training and personal relationships.

(3) All courts having jurisdiction have declined to exercise same on the basis that this state is the more appropriate forum.

(4) No Court of any other State would have jurisdiction under the criteria set forth in (1), (2), or (3).

Exclusive, Continuing Jurisdiction

The other major revision to the UCCJEA was the addition of “exclusive, continuing jurisdiction”. Pursuant to section 202, the continuing jurisdiction of the original decree state (i.e. the state that made an initial custody determination) is exclusive, and will continue until one of two events occur:

(1) If a parent or person acting as the child’s parent remains in the original decree state, continuing jurisdiction is lost when neither the child, the child and a parent, nor the child and a person acting as a parent continue to have a significant connection with the original decree state and there is no longer substantial evidence concerning the child’s care, protection, training and personal relationships in that State.

(2) When the child, the child’s parents and any person acting as a parent no longer reside in the original decree state.

This means that, even if the child has acquired a new “home state”, the original decree state retains exclusive, continuing jurisdiction, so long as the “significant connection” requirement of Section 201 (See 201(2)((a) and (b)) is met. However, if the original decree state determines that the relationship between the child and the person remaining in the original decree state has diminished, thus precluding a finding of significant connections and substantial evidence, jurisdiction in the original decree state would no longer exist.

Additionally, when the child, the parents, and all persons acting as parents physically leave the original decree state and live elsewhere, exclusive continuing jurisdiction ceases. In this event, either the original decree state or the new state may decide whether the original decree state has lost jurisdiction.

Jurisdiction to Modify Initial Determination

But what happens where an original decree state finds that it no longer has exclusive, continuing jurisdiction over a matter? How does it relinquish jurisdiction to a new “home state”?

Pursuant to Section 203, a new state may not modify a child custody determination made by the court of another state unless the new state has “home state jurisdiction” under Section 201 and

(1) the original decree state determines that it no longer has exclusive, continuing jurisdiction, or the original decree state determines that the new state would be a more convenient forum (See Section 207); or

(2) a court of the original decree state or a court of the new state determines that the child, the child’s parents and any person acting as a parent do not presently reside in the original decree state.

Thus, a new state is prohibited from modifying a custody determination made by an original decree state unless the original decree state has determined that it no longer has exclusive, continuing jurisdiction or the new state has decided is it a more convenient. The new state is not authorized to determine whether the original decree state has lost its jurisdiction; only the original decree state can make that determination. The only exception to this is when the new state finds that the child, the child’s parents and any person acting as a parent no longer reside in the original decree state.

It is clear from section 203 that when an interstate child custody issues arises, the original decree state and the new state must communicate and cooperate to determine the proper jurisdiction of a matter; but how often does this occur?

 

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Application of the UCCJEA in New Jersey

While the new revisions and clarifications made to the UCCJEA were supposed to make it easier for courts to determine who could hear interstate child custody matters, as discussed in the recent unpublished (not precedential) decision of C.G. v. A.D. it is clear that the courts are still struggling over jurisdictional issues.

In the aforementioned case, the mother A.D., lived with the parties’ daughter in Delaware for 5 years, until the child temporarily moved to New Jersey to live with her father, C.G., due to A.G.’s medical condition.

Shortly thereafter the mother filed a petition in Delaware for custody of the parties’ daughter. In September 2012, the Delaware judge entered an order awarding the mother sole custody after determining that Delaware was the child’s “home state” pursuant to the UCCJEA, finding that since the mother filed the petition less than six months after the child left Delaware and went to New Jersey, Delaware retained jurisdiction.

The mother then filed a motion in New Jersey, requesting that the court to enforce the custody order entered by the Delaware court.

In June 2014, a New Jersey judge, after conducting oral argument, denied the mother’s application without making any findings of fact as to the child’s residency leading up to the mother’s petition for custody in Delaware and without communicating with the Delaware court regarding the original order. Additionally, despite failing to follow the procedural requisites of the UCCJEA, the New Jersey Judge entered an order requiring the mother to attend therapeutic intervention to aid her parenting time with her daughter.

Thereafter, the mother then returned to the Delaware court seeking again, an order of custody of the parties’ daughter. The Delaware court affirmed its original September 2012 custody order asserting, among other things, that Delaware had jurisdiction to enter the initial order due to the fact that Delaware was the “home state” of the child at the time the mother filed the application.

The mother then appealed the June 2014 New Jersey order, challenging the intervention of the New Jersey court in light of the original Delaware custody order entered in September 2012.

The Appellate Division made it clear that the dispute at bar was subject to UCCJEA and that an initial custody order was properly issued in Delaware. Thus, the subsequent order entered in New Jersey was a “modification proceeding” and in order to modify the initial order, New Jersey was required to make a two-tiered finding as to whether (1) New Jersey was the child’s “home state” and (2) if it was not, whether Delaware was.

If the New Jersey court concluded that New Jersey had “home state” jurisdiction, the next step would be to determine whether custody proceedings had been commenced in another state. If so, New Jersey must stay its proceedings and communicate with the other court to seek an agreement as to whether New Jersey is a more convenient forum or Delaware retained jurisdiction.

If New Jersey concluded that Delaware remained as the child’s “home state”, then all proceedings should have been deferred to Delaware.

Unfortunately, in this matter, the New Jersey court did not follow the proper procedure under the UCCJEA, despite being presented with an existing custody order from Delaware, and the subsequently entered June 2014 order requiring the mother to attend therapeutic intervention to aid her parenting time with her daughter was reversed and remanded.

Parting Words

When it comes to the interstate child, the first order of business before filing a custody or parenting time application, it to determine the proper jurisdiction for doing so. In a matter where two (or sometimes more) courts must communicate, it may be prudent to file an application in all possible jurisdictions, requesting that the possible courts communicate with one another to determine the appropriate forum. This step will (presumably) avoid the inconsistencies that arise when multiple orders are rendered by multiple jurisdictions. Taking this simple step before filing an application may also avoid extensive litigation to correct jurisdictional errors, which could elongate matters and drive up fees unnecessarily.

When most people hear the horrific phrase “domestic violence”, they think only of the physical abuse or threats of physical abuse inflicted upon another; however, financial or economic abuse exists in approximately 98% of all domestic violence situations, according to the National Network to End Domestic Violence.

Financial or economic abuse is defined as “making or attempting to make a person financially dependent”. In order to accomplish this form of dependency, an abuser may resort to the following tactics:

  • Maintaining sole title and control over bank accounts, real property or other assets;
  • Withholding or restricting access to money;
  • Making all major financial decisions without consulting the victim;
  • Refusing to put the victim’s name on joint assets or removing the victim’s name from previously joint assets so that the victim does not have any knowledge of the family’s resources, or own any assets/property;
  • Using the victim’s personal identity information (such as Social Security number) to open credit card accounts or obtain loans, which are then never paid (destroying the victim’s credit);
  • Forcing the victim to co-sign credit card accounts or loans;
  • Forcing the victim to sign a power-of-attorney so that the abuser can sign legal or financial documents on the victim’s behalf, without their knowledge;
  • Forcing the victim to cash-in assets in his/her name only, and turn them over to the abuser;
  • Placing the victim on an “allowance”;
  • Forcing the victim to account for all money spent, including providing proof such as receipts;
  • Forcing the victim to beg for money to meet basic needs, such as food, clothing or shelter, yet spending money freely on him/herself;
  • If the victim is employed, forcing him/her to turn over all earned income/paychecks to the abuser;
  • Harassing the victim at work or threatening the victim’s employer with the intention to get/have the victim fired (and therefore cannot work and earn money);
  • Isolating the victim from the family, friends and support system and/or turning others against the victim;
  • Preventing the victim from attending school or job-training programs;
  • Preventing the victim from obtaining employment, thereby forcing the victim to be totally dependent; and/or
  • Threatening the victim that if they leave they will never see the children again and will never win a custody dispute if they go to Court.

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Financial abuse typically starts out slowly, and may not even be recognizable at first. Simple statements such as “let me handle the finances, you have enough to worry about” or “since I’m better at saving, let me maintain our bank accounts”, evolve into situations where the abuser has gained a total financial stronghold over the victim.

The number one reason victims of financial abuse remain or return to abusive relationships is because they do not have the financial resources to escape. Thus, victims of financial abuse are caught in an inevitable Catch 22: either they stay in the abusive relationship (physical, emotional and/or financial abuse) or they leave and risk becoming impoverished and/or homeless because they do not have the financial wherewithal to even obtain a bus ticket. Worse, if the abuser has incurred debt under the victim’s name and/or destroyed their credit, the victim will not even be able to obtain housing, a credit card, a cell phone or even certain jobs. It’s no wonder victims choose to stay in unhealthy situations.

Moreover, abusers often manipulate the victim into believing that they cannot leave because they will not survive without them; however, the situation becomes even more contentious when children are involved. Abusers often threaten victims that if they leave, they will “never see their children again”, they will call child protective services and/or utilize the court system to gain custody. Unfortunately, victims have no reason to believe otherwise. Contacting a knowledgeable family law attorney can help alleviate some of the fiction perpetrated by abusers, which usually has no basis in law, and a skilled practitioner can help you take the first steps into protecting yourself and your children, and rebuilding your life.

Victims of domestic violence should be aware of their legal and other options. Below is a list of some New Jersey based resources:

If you or someone you know is a victim of financial domestic violence, below is an excerpt from the Forbe’s article ‘I’ll Take Care of the Bills’: The Slippery Slope Into Financial Abuse (see citation below) that provides a strategy for victims of financial abuse to start breaking the cycle:

  1. Learn more about it to see if your situation matches the description. Find a checklist online, such as this onethis onethis one or this one.
  2. If you believe you are a victim, start organizing important financial and personal documents such as bank statements, birth and marriage certificates, etc., and store them with friends or family or in another secret, safe location outside of your home.
  3. Earn extra money however you can, and keep it with a trusted person or in a secret location, so you can rely on this when you leave.
  4. Get a free copy of your credit report at Annual Credit Report. Report or dispute any fraudulent charges.
  5. Create a budgetso you know how much your housing, food, transportation and other expenses will cost when you leave.
  6. Change your PIN codes and passwords so your abuser can’t access your financial information or track your activity.
  7. Check out resources like URI NYCThe National Domestic Violence Hotline(1-800-799-Safe (7233)) and Safe Horizon.

Resources used for this article:

  1. Shin, Laura. “‘I’ll Take Care of the Bills’: The Slippery Slope Into Financial Abuse.” Forbes. 19 March 2015. Web 05 Feb. 2016.
  2. Triffin, Molly. “The Warning Signs of Financial Abuse.” Daily Worth. 20 July 2015. Web 05 Feb 2016.
  3. Purple Purse; http://purplepurse.com/

 

The Simkin v. Blank case in New York has been a frequent topic on this blog.  It was game over for Mr. Simkin today when the NY Court of Appeals ruled that this Madoff victim could not revise his divorce deal.

 We first wrote when the case was filed.  In this case, in June 2006, the parties agreed to evenly split the $5.4 million in an account they had with Madoff Securities. As a result, the husband gave the wife $2.7 million in cash, and retained the account. As a result of the alleged Madoff Ponzi scheme that has essentially rendered the account worthless, the husband filed suit seeking the $2.7 million that he paid the wife. The husband alleges that because the account turned out to be valueless, the spirit of the agreement was broken.

We next wrote when the trial court first ruled, dismissing the matter.   I even participated in a podcast about this ruling. Acting New York State Supreme Court acting Justice Saralee Evans decided that the husband is stuck with his decision to keep the account instead of withdrawing his money before the December 2008 collapse of Bernard L. Madoff Investment Securities LLC. The Justice noted that while the husband claimed the Madoff account held no assets, he did not allege it had no value. Key to the decision was that in 2006 and "the several years after that plaintiff maintained this investment," the account "could have been redeemed for cash, presumably significantly in excess of its 2004 value." In addition, the Justice held that "An investor’s ability to redeem an account for value, was the assumption on which the parties relied in dividing their property and in doing so they made no mistake."

The next installment was about the Appellate Division’s decision which reversed the trial court decision and reinstated the Complaint.  The Appellate Court found that dismissal was improper and the husband had the right to try to pursue both the issues of mutual mistake (i.e. there never really was an account) and that the wife was unjustly enriched. In coming to its decision, the majority of the court held:

The dissent states: “[a]t the time of the agreement, Steven had an account in his name with [Madoff].” Untrue. Steven never had an account in his name with Madoff; on Madoff’s own admission there were no accounts within which trades were made on behalf of investors.

The dissent then states, “Steven liquidated part of the account to fund his payments to Laura.” Untrue. In Madoff’s Ponzi scheme what appeared to Steven and Laura to be a partial liquidation of an account was simply a payment to Steven that came from funds deposited by a more recent “investor” in what the “investor” believed was his own account.

The dissent further observes, “[Steven] did not liquidate the rest of the Madoff account … and he continued to invest in it.” Untrue. There was no account which could be liquidated, as became apparent when Madoff received $7 billion worth of “liquidation” calls from investors in 2008. Nor was Steven “investing” in an account; his further contributions went directly to pay other “investors” in the scheme.

Continue Reading Madoff Mess Hits the Divorce Court – The End

While decisions from the Appellate Division addressing a former professional athlete’s motion to reduce his support obligations do not come around all that often, we have, in fact, previously blogged on the issue.  Now from the Appellate Division comes the unpublished (not precedential) matter of Villone v. Villone, where the Appellate Division strictly relied on "triggering" language in the parties’ Marital Settlement Agreement in reversing and remanding a trial court’s decision that a former Major League Baseball pitcher was not entitled to a modification of support. 

The matter involved that of former pitcher Ron Villone, who has played for more franchises than almost anyone else in the history of the game (an interesting record that was recently broken) – 12 to be exact as of Spring Training 2011, when he was released by the Washington Nationals and signed with the Somerset Patriots (an independent, minor league baseball club).  He became well known for his travels, earning the nickname "Suitcase" Villone from teammates.  Also interesting is that his current wife is on the reality show "Baseball Wives", which, in the context of asking for a support reduction could provide potential evidence for his former spouse to use against him in opposing such request at the trial level.

Continue Reading STRIKEOUT? FORMER PITCHER GRANTED RELIEF ON MOTION TO REDUCE SUPPORT

As we have blogged before, perhaps the most critical document in the New Jersey family law landscape is the Case Information Statement.  A document designed to provide the court, parties and legal counsel with a complete economic picture – income, expenses, assets and liabilities – the CIS, which is signed by the party under oath, can be used to address several issues including, but not limited to, alimony, child support and equitable distribution. 

Rule 5:5-2(a) requires the filing of a CIS in "all contested family actions, except summary actions" where there exists any issue as to custody, support, alimony or equitable distribution.  The rule also provides that a CIS may otherwise be required by Court Order or on motion of the court or other party. 

For the more specific purpose of this blog entry, Rule 5:5-4(a) provides that, when filing a motion in the family part for "the entry or modification of an order or judgment for alimony or child support based on changed circumstances", the motion must be accompanied by a copy of the prior filed CIS/statement(s) upon which support was originally determined and now sought to be modified, and a newly updated CIS.  This subsection of 5:5-4 concludes by providing that if the party seeking the modification establishes a "substantial change in circumstances", the court will then order the other party to file a copy of a current CIS.

Bringing us to the Appellate Division’s newly unreported decision in Livingstone v. Daniel, wherein the Court found that the trial judge did not properly state a basis for his decision to modify child support after he terminated alimony following a plenary hearing.  As part of the alimony termination decision, the trial court directed the parties to submit their last 3 pay stubs, medical insurance information, and work related child care expenses for a child support calculation to be made.  After such information was submitted, the trial court issued a new order, without further briefing or oral argument, increasing child support based on the parties’ gross weekly incomes, mom’s net annual work-related child care expense, and the children’s health insurance premiums.  Importantly, the Appellate Division found that the trial court’s reliance on pay stubs in lieu of Case Information Statements was improper, since there was the full financial picture for both parties was lacking.  As a result, the trial court was directed to conduct further proceedings upon review of the parties’ CISs.

Interestingly, the court also remanded as to whether dad was required to contribute to the children’s private school expense, even though the parties’ settlement agreement only referenced such contributions in relation to college.  The alimony termination was deemed a change in circumstances meriting new review on this issue, to which the trial court failed to perform the proper analysis/consideration of several factors in deciding that the settlement agreement controlled.  In addition to determining whether a child support modification was warranted based on CISs to be filed, the trial court, thus, was also required to consider private school contributions.

The scenario in Livingstone only serves to reiterate just how important filing that CIS for several reasons, as it is the complete financial picture that is critical to rendering a proper determination on issues of support, education contributions, and the like.

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Robert Epstein is a contributor to the New Jersey Family Legal Blog and a member of Fox Rothschild’s Family Law Practice Group. Robert practices throughout New Jersey in all areas of family law and family law litigation. You can reach Robert at (973)994-7526, or repstein@foxrothschild.com.

An interesting decision on the issue of support modifications came down last week from the Appellate Division in the unpublished (not precedential) matter of Schechter v. Shechter.  There, the husband in 2004 agreed via settlement to pay child support and 12 years of limited duration alimony.  In July 2010, he filed a motion to modify his support obligations on the basis of a substantial and continuing change in circumstances (he had been unemployed since March 2009).  

The motion judge denied the parties’ request for oral argument and, in ruling "on the papers," added several paragraphs to the husband’s proposed form of order.  As part of the order, the judge, among other forms of relief, temporarily reduced the husband’s child support obligation due to a finding of changed circumstances, but then denied his request to modify his alimony obligation. 

The husband appealed, arguing that the trial judge erred by (1) denying his request to modify alimony despite finding that changed circumstances warranted a temporary reduction in child support; (2) denying the parties’ request for oral argument; (3) failing to make requisite findings of fact and conclusions of law; and (4) failing to conduct a plenary hearing. 

The Appellate Division reversed and remanded the matter because the motion judge failed to make proper findings of fact and conclusions of law.  As a result, the Appellate Division was unable to reconcile why the motion judge modified child support based upon a finding of changed circumstances, while also denying a modification of alimony.

Notably, while the husband was successful on having the matter reversed and remanded, it was a hollow victory because the motion judge had since retired.  The matter, as a result, was remanded to an entirely new trial judge for a "fresh look," especially in light of the parties’ "possibly evolving financial circumstances."  Thus, while the prior motion judge had made a finding of changed circumstances (at least as it applied to child support), the new motion judge would no longer be bound by such a finding.  The husband, by unfortunate result, was essentially left with no choice but to start over.  While we have discussed on several occasions the issues raised by denying oral argument and failing to make proper findings of fact and conclusions of law, the result in this matter seemed particularly inequitable to one party under somewhat unique circumstances beyond his control.

In determining a payor spouse’s gross income in analyzing an appropriate level of alimony or child support, one question that arises on occasion is whether to include so-called "mandatory" contributions to the total number.  For instance, if the payor spouse is required by his employer to contribute $30,000 per year towards his 401(k), should such money be included in that spouse’s income in determining support?  As to child support, the answer is a definitive "no." 

As to alimony, since such contributions are excluded from the child support equation and child support carries great weight as a matter of public policy – the New Jersey Child Support Guidelines posit that children should not be forced to live in poverty due to family disruption – it is only sensible and reasonable for such contributions to be similarly be excluded from the alimony calculation.  Simply put, since the Guidelines consider any and all sources of income to aid children, the fact that mandatory contributions are excluded demonstrates that it would be even more unfair and unreasonable to include such contributions in calculating alimony.

The Guidelines provide a definition for "gross income" and, in so doing, expressly exclude mandatory contributions.  Gross income is defined as "all earned and unearned income that is recurring or will increase the income available to the recipient over an extended period of time.  When determining whether an income source should be included in the child support guidelines calculation, the court should consider if it would have been available to pay expenses related to the child if the family would have remained intact or would have formed and how long that source would have been available to pay those expenses."

Continue Reading TO INCLUDE OR EXCLUDE MANDATORY CONTRIBUTIONS IN DETERMINING INCOME – A BASE-LEVEL ANALYSIS

This past weekend, my wife and I saw the new film, "Crazy, Stupid, Love," the story of which revolves around a divorcing couple attempting to move on with their lives.  While I enjoyed the movie more than I thought I would, the purpose of this blog entry is not to give a movie review.  Rather, it is to focus on the theme that I took from the conduct of the husband in the movie, played by Steve Carrell, and how such conduct applies to "real life" divorce situations.

Mr. Carrell’s character did not want to get divorced.  It is likely that we all know such a person.  In fact, when his wife played by Julianne Moore told him that she wanted a divorce, he unbuckled his seat belt, opened the door to a moving car, and rolled out onto the street from his passenger seat.  He then spent the rest of the movie trying to move on with his life while remaining an integral part of his family.  Had this scene unfolded in New Jersey, however, Mr. Carrell’s character would have had no choice but to be divorced in this "no fault" state. 

While we have previously blogged on this topic, I was recently reminded about how this somewhat cold, hard fact can understandably be for some clients to swallow.  After years, if not decades of marriage with the same person, hearing from that person that they no longer want to be married, and then having to go through a divorce can be difficult to the point of traumatic.  The unwilling party is still trying to come to grips with a spouse who no longer wants to be married, while having no choice but to be attentive during the divorce process to protect his or her potential rights to support, equitable distribution and the like.

To that end, clients often let their focus on the root cause for the divorce or, perhaps, a desire to reconcile, overwhelm the need to pay proper attention to the divorce process.  Not surprisingly, this can be especially dangerous where the other party  has no interest in reconciling and is litigating as necessary to move forward.  Even worse, the other party may try to capitalize on your client’s desire to reconcile to gain leverage in the settlement negotiation process. 

Ultimately, if one spouse wants a divorce, it is going to happen.  As matrimonial counsel, it is important to understand the very difficult, conflicting emotions experienced by your client, and even convey that understanding to your client during the course of representation.  Such an understanding will hopefully help focus your client on the divorce, and, perhaps, even aid in providing your client with a better sense of closure once the matter is complete.  It could also help your client understand that you can relate to their situation, which will hopefully lead to a stronger attorney-client relationship and representation. 

Following on the heels of Melissa Ruvolo’s blog entry discussing the need for detailed proofs to fulfill one’s threshold burden required to modify support, the Appellate Division’s unpublished (not precedential) decision in Bonaventura v. Bonaventura tells the tale of a supporting spouse who unsuccessfully (and surprisingly) tried to reduce his alimony obligation after losing his job in the financial industry.  With the Dow having dropped 500 points yesterday as widespread economic jitters continue three years after the bottom fell out of the economy, and unemployment rates soaring at around 19%, job losses, especially in the financial industry are to sure to continue. 

With that, our jobs as matrimonial practitioners will continue to require creativity to convince courts that a given case is different from the "run of the mill" Lepis applications and, at the very least, necessitates a period of discovery and subsequent plenary hearing.  Bonaventura reveals, however, that not only is each case fact-specific, but also each trial judge can rule differently on a similar factual scenario.

Continue Reading ON THE OTHER HAND, MODIFYING SUPPORT CAN BE A STEEP HILL TO CLIMB