The New Jersey Judiciary website provides each days published and unpublished Appellate Division decisions.  If you read this blog with any frequency, you know that we often write about the decisions that are released.  Today there were three decisions from post-judgment divorce cases.  We will likely blog in more detail about some or all of them in the future.  What is interesting is that despite the fact that historically, appeals succeed only approximately 20% of the time, there were reversals in all three cases. 

In one, alimony was modified and permanent alimony was awarded without the court holding a plenary hearing (i.e. trial) on the contested issues. 

In another, the trial judge modified child support, multiplying the old child support amount  by the percentage increase in the plaintiff’s income.  The Appellate Division held that a simple mathematical calculation does not comply with the mandates of the statute and case law.  They further held that while the percentage increase is an important factor in determining the support obligation, it is not exclusive and does not relieve the trial judge of performing the required analysis
prescribed by the statute and case law.

In the third, there were conflicting certifications regarding a husband’s application to reduce support and the wife’s cross application for enforcement.  Not only was there no plenary hearing ordered despite conflicting certifications, there was not even oral argument on the motion allowed despite both parties requests for same.

Continue Reading Three Matrimonial Appeals Decided Today – Three Reversals

Following on the heels of an earlier blog entry this week addressing "alimony escalators" in the context of proving a change in circumstances meriting a decreased alimony obligation, a new unreported (not precedential) decision from the Appellate Division in the matter of Eick v. Eick, found that the husband had fulfilled his initial "changed circumstances" burden meriting the matter being sent back to the trial court for a plenary hearing on the issue. 

In Eick, the husband was a self-employed bookbinder who was obligated to pay permanent alimony to his former spouse pursuant to a February 2007 property settlement agreement in the amount of $1,500 per month, as well as $2,000 per month in child support for the parties’ two younger children (a number agreed upon that went beyond the child support guidelines calculation).  Critically, the PSA established that such figures were based on an income of $117,000 for the husband and $29,000 for the defendant.  As an important aside, it is important in any settlement agreement to note what incomes were utilized to determine support so that a baseline figure exists should the issue arise in the future.

In March 2009, the payor husband filed a motion to reduce his support obligations based on an alleged change in circumstances – a claim that his business had "declined dramatically" due to online research tools utilized by many clients that rendered the need for his services substantially diminished.  He also claimed that his business had suffered due to the growth of imported bond printed material, as well as the general downturn in the economy. 

Interestingly, the former husband supported his application by submitting the report of an employability expert, who concluded that, while he could learn new skills, changing careers was not a realistic possibility after 27 years in the bookbinding business.  The report further concluded that his best option was to stay in his industry, anticipate a continued decrease in business volume, revenue and earnings, and consult with a career counselor or business consultant to determine available options.

In reversing and remanding the trial court’s decision denying the husband’s modification motion, the Appellate Division noted that not only had his income decreased, but that the wife’s income had "significantly increased" – an undisputed fact set forth in the wife’s Case Information Statement that the trial court failed to address.  The Appellate Division also concluded that the trial court failed to make sufficient findings as to whether the husband’s decreased earning situation was of a permanent or temporary nature, since a temporary situation is not enough to merit a changed circumstances finding.  Even though the trial court noted that the bookbinding industry had undergone difficult times when the PSA was entered, the judge also noted that the situation was further "complicated" by the downward economy.  As a result, the trial court’s denial of the husband’s application was reversed and remanded for a plenary hearing.

We have recently blogged on the requirement that there be oral argument on substantive motions if it is requested.  Another requirement is that court’s should hold plenary hearings (i.e. trials) when there are conflicting certifications regarding a material fact in dispute.  That requirement was made clear again in the unreported (non-precedential) decision in Marquez v. Cabrera released on July 15, 2010. 

In this case, the Property Settlement Agreement provided that the wife got to keep two pieces of real estate owned by the parties, seemingly their largest assets, while the husband remained responsible for some debt associated with the properties.  This does not seem to pass the smell test on its face, a fact not lost on the Appellate Division in its decision.  The husband moved to set aside the agreement, alleging fraud – essentially that a signature page from a different agreement was appended to the one filed with the court on the day of the divorce hearing.  Of course, the wife denied this.  There was some credence on its face to the husband’s arguments given that there were two page sevens of the agreement. 

In any event, the trial court  denied the motion finding the wife more credible.  The problem there is that court are not supposed to make credibility determinations on mere certifications alone.  Rather, as noted above, if there are competing certifications, a plenary hearing must be held.  As such, the matter was reversed for a plenary hearing.  In addition, the Appellate Division held, "because the motion judge made credibility determinations and "may have a commitment to [her] findings," the plenary hearing must be conducted before a different judge." 

Continue Reading Failure to Hold a Plenary Hearing When There Were Conflicting Certifications Regarding Alleged Fraud Was Reversible Error

On June 28, 2010, the Appellate Division released the unreported (non-precedential) opinion in the case of "O.R. v. H.S."  In this case, the Appellate Division reversed the trial court’s Order, rendered without a plenary hearing and where there were disputed facts, granting the defendant joint legal custody. 

In this case, the parties were never married. While the plaintiff was pregnant with the parties’ child, she obtained a domestic violence final restraining order against the defendant.  Four years had passed and the parties were now in court dealing with emergent custody and parenting time issues.  The defendant’s attorney requested that joint legal custody be ordered and plaintiff’s attorney objected, contradicting defendant’s account of his support of the child and noting defendant’s history of drug use.  Plaintiff also noted the FRO, her fear of the defendant and that defendant presented no proof regarding his relationship with the child.  Notwithstanding, the Court issued an Order granting the parties joint legal custody and designating the plaintiff the parent of primary residence.

Plaintiff appealed and the Appellate Division reversed noting that a decision like this, where there was contradictory information presented, required a plenary (evidentiary) hearing.  The Appellate Division also noted that the parties’ relationship had been strained for year, as noted by the FRO, and that along with the FRO goes a presumption in favor of awarding custody to the non-abusive parent.  In addition, the Court noted that the plaintiff’s fear as well as the defendant’s drug use need to be considered at the hearing. 

This case reminds us of two things.  First, court’s cannot decide major issues without having plenary hearings if there are material facts in dispute.  Second, court’s must be mindful of findings of domestic violence when addressing the issue of custody, including legal custody, considering the statutory presumption of custody favoring the non-abusive parent.  Fundamental to the notion of joint legal custody is the parties’ ability to communicate and cooperate which is why a review of the history of domestic violence is so important.

Last week, I published a blog post entitled "No Hearing Required for Serial Modification Motions." To view that post, click here.  However, released on February 9th was the unreported decision in the case of Cordero v. Mora with a different result. To view the full text of the case, click here.

This case involves the former Major League baseball player, Will Cordero, who was seeking, once again, to reduce his child support obligation for the child of his first marriage.  He played with the Boston Red Sox, Cleveland Indians, Pittsburgh Pirates, Montreal Expos, Florida Marlins and Washington Nationals in the major league for fourteen years. He made a substantial amount
of money during his career. In some seasons he made as much as $6,000,000.  He now claims to be out of baseball, having last played in the Major Leagues in 2005.  He participated in spring training in 2007 with the Mets in their minor league camp but was cut.

Over the years, Mr. Cordero has filed many application to reduce his support. In 2005 resulted in a reduction of child support from $1300 to $800 weekly. The  following year, he sought and obtained another reduction based on a substantial salary reduction.  from $800 to $500 weekly. On appeal,
he argued he should have received a greater reduction.  In June 2007, that argument was rejected by the Appellate DIvision.  However, just prior thereto, the ex-wife filed an enforcement motion and Mr. Cordero filed another motion seeking a reduction.  The judge granted the motion to enforce the existing order. In addition, the judge ordered him to pay $11,999 in arrears within thirty days and denied his motion for a further reduction. The judge noted that plaintiff provided limited and spotty financial information. Based on the information before the court, the judge concluded that plaintiff had the ability to pay the arrears. He also found that plaintiff produced extremely limited information about his efforts to obtain employment and incomplete information about assets that may generate unearned income or can be liquidated to meet his on-going child support obligation. The judge was particularly concerned that plaintiff had not provided an accounting of the millions of dollars he had earned during his professional baseball career.




On February 2, 2009, the Appellate Division released a reported (precedential) decision that affirmed a decision of the trial court denying the former husband’s motion for a downward modification of his alimony and child support obligations.  The Appellate Division found that the trial judge properly exercised his discretion particularly when viewed against his findings from a multi-day plenary hearing (trial) that occurred less than one year prior. To see the full text of this case, click here.

The parties were divorced in 2003 and entered a Property Settlement Agreement (PSA) where he agreed to pay $1,000 per week in alimony and $350 per week in child support for the parties’ 3 children.  In addition, based upon the joint accountant’s finding of the five year average of the husband’s income, he agreed that support was based upon $185,000 for him. 

In 2005, the husband moved for a reduction in his support obligation claiming a downturn in his law practice.  The plenary hearing on this motion was held over several days in December 2006.  After the hearing, the judge denied the husband’s motion finding that during the time that the husband’s income had supposedly decreased, he obtained a new $58,000 Lexus and bought a home for $785,000 with a $600,000 mortgage.  The judge also found that based upon the evidence at trial and his CIS, that the husband’s income was more in the $140,000 range and not $100,000.  The judge also rejected the husband’s claim that he was indebted to the Internal Revenue Service in the amount of $55,000 because Gregory failed to provide any documentation to
support that assertion.



New Jersey Courts are required to strictly apply procedural safeguards when a child’s custody is at stake due to the substantial impact that a custody decision has on the parent-child relationship. A review of these safeguards is warranted in light of the Appellate Division’s recent decision in In the Matter of K.S.H., where it reversed a trial court’s custody Order because it found the existence of a genuine dispute requiring the Court to provide the parties’ with prior notice of its intended action to change custody and to conduct an evidentiary hearing on the issue.

A lengthy procedural history preceded the events that are at the core of this discussion involving several attempts by DYFS and a child’s Law Guardian to have physical custody of the child removed from his mother based on allegations of neglect. Ultimately, a trial court in 2007 entered an order directing that the child be removed from the mother and that DYFS be granted physical custody because it deemed the mother to have abrogated her responsibilities as the child’s caretaker and violated related court orders and directives. Of import here was the decision of another trial judge in 2008 to reject DYFS’s permanency plan to terminate parental rights followed by adoption, granted visitation to the grandmother, and ordered that physical custody be returned to the mother all without providing notice to the parties of its intent to change custody. DYFS and the child’s Law Guardian were granted leave to appeal the second trial judge’s findings, arguing that the second trial judge erred by ordering the return of the child to the mother’s custody without having provided prior notice to the parties and without conducting an evidentiary hearing regarding the custody change

In agreeing with DYFS and the Law Guardian, the Appellate Division reiterated the need for a decision involving custody to be based on evidence admitted during a hearing held on the record with all documentary exhibits considered by the court clearly identified for appellate review and with testimonial evidence presented through witnesses who are under oath and subject to cross-examination.  

The Appellate Division found that the trial judge violated basic rules of trial practice and failed to provide a complete record for appeal because the order returning custody was premised upon a mere conference between the court, DYFS’s attorney, the Law Guardian, the mother on her own behalf, and an unidentified DYFS caseworker present in the courtroom at the time. There was no competent evidence supporting the decision – no witnesses were identified, no documents were admitted into evidence, there was no attempt to exclude inadmissible hearsay, and the trial court relied upon reports that had not been admitted into evidence.   As a result, the order returning custody was vacated and the matter remanded for an evidentiary hearing.

As set forth in another recent post in this Blog, the Appellate Division will not hesitate to reverse and remand a decision of a trial judge made without application of necessary procedural safeguards, including the conducting of a plenary hearing, especially when the custody of a child is at stake.

In some cases, either parties will agree or a court will Order the payment for a nanny.  In fact, this is typically in the nature of work related child care which is something that parents are typically required to share the costs of in accordance to their incomes under the Child Support Guidelines. 

A question that is more interesting is for how long must we pay for a nanny.  In hign income cases, perhaps this is less of an issue because it becomes more of a lifestyle issue than work related child care.  In fact, in many cases like that, there is a nanny or nannies even when one parent does not work outside of the home.  That is why I say it is more of a lifestyle issue.

What happens when there is a nanny in a garden variety case where the resources are more limited?   In an unreported Appellate Division case released on November 7, 2008 entitled Herega v. Figueroa that issue was addressed to a certain extent. To see the full text of the case, click here.

In this case, it appears as though the father had custody of the children.  At time of the divorce, both children were not in school full time.  As such, recgonizing a need for assistance, the wife agreed to pay for half of the nanny.

However, the current litigation stems from her motion to cease contributing to the nanny among other things.  There were two major rationales given.  First, she alleged that the father and the nanny were now a romantic couple – indeed sharing the same bedroom.  Second, since the kids were now 6 and 9 and in school full time, she asserted that there was no need for a full time nanny.  In fact, their school offered low cost before and after care.  The husband denied that there was a relationship and otherwise opposed the motion.  The trial court denied the motion.

The Appellate Division reversed and remanded the matter for a plenary hearing (trial) on the issue of whether there was a relationship between the nanny and the husband.  Further, the hearing was to address whether the nanny was still needed given the maturation of the children and the availablity of after care at school.

While not reported, this case remains interesting for the above reasons.  In addition, it is another example of the Appellate Division reminding trial judges that plenary hearings are required when there are important factual issues in dispute.