NJ Family Legal Blog

APPELLATE DIVISION AFFIRMS ALIMONY RETROACTIVE TO FILING OF THE DIVORCE COMPLAINT EVEN WHERE THERE WAS NO PENDENTE LITE SUPPORT MOTION FILED DURING PENDENCY OF THE CASE

esolotoff@foxrothschild.com (Eric S. Solotoff) — Thu, 09 Jul 2009 16:49:44 -0500

i have heard on a number of occasions lawyers and judges saying that they cannot, at trial, award retroactive support for the pendency of case if no interim (called pendente lite in New Jersey) support motion was made seeking support.

In the unreported case of Bright v. Bright decided July 9, 2009, the Appellate Division firmly holds to the contrary, affirming the decision of the trial court. While the case is very fact specific, the logic of the decision was clearly enumerated as follows:

The purpose of pendente lite support is to preserve the status quo, maintaining the parties in the positions they were in prior to the litigation. Mallamo v. Mallamo, 280 N.J. Super. 8, 11-12 (App. Div. 1995); Rose v. Csapo, 359 N.J. Super. 53, 58
(Ch. Div. 2002). "Maintenance of the status quo involves payment of the marital bills and expenses necessary to maintain the dependent spouse at the standard of living enjoyed during the course of the marriage." Rose, supra, 359 N.J. Super. at 60.

Moreover, logically, if someone is not receiving proper support during the pendency of the matter, eatery because they didn't seek it, by agreement or by court order, why should it matter how the deficiency occurred?

APPELLATE DIVISION FINDS THAT 9 YEAR MARRIAGE DOES NOT MERIT PERMANENT ALIMONY - PREMARITAL COHABITATION COUNTS TOWARD LENGTH OF MARRIAGE

esolotoff@foxrothschild.com (Eric S. Solotoff) — Wed, 08 Jul 2009 10:38:08 -0500

In an interesting unreported decision released yesterday in the case of Christopher v. Christopher, the Appellate Division reversed a trial court opinion granting the wife permanent alimony.

The parties were married 2006 and the Complaint for Divorce was filed in December 2004. Interestingly, the trial court found and the Appellate Division affirmed the tacking of the period of premarital cohabitation to the length of the marriage. Thus, the 8 year marriage became a 9 year marriage.

Even still, the Appellate Division found that the relationship was simply too short to award permanent alimony. Rather, citing the reported Cox decision, the Appellate Division again noted:

limited duration alimony is not intended to facilitate the earning capacity of a dependent spouse or to make a sacrificing spouse whole, but rather to address those circumstances where an economic need for alimony is established, but the marriage was of short-term duration such that permanent alimony is not appropriate. Those circumstances stand in sharp contrast to marriages of long duration where economic need is also demonstrated. In the former instance, limited duration alimony provides an equitable and proper remedy. In the latter circumstances, permanent alimony is appropriate and an award of limited duration alimony is clearly circumscribed, both by equitable considerations and by statute.

The Appellate Division in Christopher deemed this to be a marriage of short duration. Moreover, despite finding that the husband (a medical doctor) will probably earn more in the future and the wife (a personal trainer) will probably not earn enough to maintain the marital lifestyle in the foreseeable future, those facts alone don't justify permanent alimony in a marriage of short duration.

While not precedential, this case is instructive because it is not unlike many cases that we see and that come before the Courts.

WHO PAYS THE COUNSEL FEES?

sfava@foxrothschild.com (Sandra C. Fava) — Tue, 07 Jul 2009 22:27:48 -0500

If you've ever been involved in any type of litigation you are probably aware of how expensive the process can be. Attorneys bill for their time. In addition there are the copying costs, facsimiles, postage, etc. When experts are involved those fees must also be accounted for. When a trial is involved the fees can quickly mount. Trials involve preparation not to mention days and hours of an attorney's time.

Almost every client or prospective client asks the same question, "How much will this cost me?" The answer is an unsatisfying it depends. We often tell clients that we do our best to control our side of the case, however we have no control over the other side. It's nearly impossible to give clients an accurate fee estimate as things change on a daily basis. In family law, the minute an emergency arises that requires an emergent application to the court for relief, fees are expended. So who pays these fees?

The issue of fees can be addressed in one of two ways. One, the parties reach an agreement as to the responsibility of fees. Or, the parties can leave it up to the judge to decide.

In a recent unpublished Appellate Division decision of Bonder v. Bonder, decided June 11, 2009, A-1262-08T3, the Court revisited the issue of payment of counsel fees in a divorce matter.

These parties had acrimonious dealings during the pendente lite phase of their matter. After a day of trial they reached an agreement as to all issues except for the distribution of marital debt and payment of plaintiff-wife's counsel fees. Seven more days of trial continued as to those two issues. At the end, the attorneys agreed to submit Certifications of Services as to the fees expended for the trial judge to review. Before the Certifications were filed, the judge telephoned the attorneys to get the amount of fees spent and issued his written opinion. The judge denied the request for counsel fees.

Plaintiff filed a motion for reconsideration arguing that the judge erred by failing to allow the filing of the Certifications of Services and that the judge failed to consider defendant-husband's bad faith dealings, especially during the pendente lite phase of the litigation. The motion for reconsideration was denied and plaintiff's appealed followed.

The Court affirmed the trial court's opinion finding that defendant's pendente lite obligations were excessive, plaintiff would leave the marriage with substantial cash assets vis a vis defendant's debt, and defendant did not act in bad faith.

N.J.S.A. 2A:34-23 permits an award of counsel fees in a family law matter and requires a judge to "consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good faith or bad faith of either party." Rule 5:3-5(c) provides that the court may, in its discretion, make an award of attorney's fees to the parties in a family law matter upon consideration of the financial circumstances of the parties, their ability to pay their own fees or contribute to the fees of the other party, the good faith of each, party the extent of fees incurred and any fees previously awarded or paid, the results obtained, and the degree to which fees were incurred to enforce existing orders or compel discovery.

In assessing a request for an award of counsel fees, the judge must determine whether the party requesting the fees has a financial need; the party who's requested to pay the fees has the financial ability to do so; and when the first two factors have been established, whether the party seeking the award acted in good faith.

In the Bonder matter, plaintiff-wife was employed as a teacher and defendant-husband as a doctor. Despite the large discrepancy in their incomes, the Court still did not find a need or a basis for an award of fees to the plaintiff.

During litigation, especially in family law matters where emotions tend to run high, litigants who act in bad faith and have the financial wherewithal, run the risk of being forced to pay the other side's counsel fees.

PROCEDURE CLEARED UP FOR THE FILING OF CROSS MOTIONS

sfava@foxrothschild.com (Sandra C. Fava) — Mon, 06 Jul 2009 22:58:43 -0500

Since I began practicing in family law, there has been a great debate about whether when filing a cross motion in the family part, if the subject matter has to relate back to the subject matter of the motion.

Motion practice in family law is very common. Before a final judgment of divorce is entered motions are filed to address issues of support, custody, visitation, and a gamut of other issues that may arise in family court matters. After a judgment of divorce is entered motions are filed to enforce or modify its terms. The New Jersey Court Rules provide specific guidelines for filing deadlines, font, spacing, length of pages, service, etc. when filing a motion. When one party files a motion seeking any type of relief, the other party has a right to respond, within a certain timeframe and has the choice to file a cross motion to seek their own affirmative relief.

So why the debate? The Rule regarding cross motions in family matters was unclear and interpreted all over the map by trial judges.

I guess you could say that there were two sides of the coin. On the one hand, requiring the subject matter of a cross motion to relate to the subject matter of a motion saves litigants time and money. Money not only in filing fees but attorneys fees as well. The attorney files a cross motion addressing the relief sought in the motion and requesting new relief. The moving party has an opportunity to respond. The attorney appears in court on one occasion to argue the merits of the application and the judge makes his/her decision.

On the other side of the coin is the argument that when a party files a cross motion seeking several prayers for relief entirely unrelated to the initial application, the moving party is deprived of the chance to fully respond due to the 10 page limit. I have heard litigants and attorneys alike argue that they or their client have been prejudiced by the inability to fully respond to issues raised in a cross motion given the page limit.

The Appellate Division,in a recent unpublished opinion, has finally cleared up this issue. In the matter of Marangos v. Marangos, decided June 4, 2009, A-2625-07T1, the Court tells us that Rule 1:6-3(b) requires that the subject matter of all cross motions relate back to the subject matter of the original motion. This rule applies to motions filed in the family part.

From a practice perspective, it will be interesting to see how judges will respond to this decision. Although unpublished and therefore not binding, the decision is persuasive and some judges may follow its holding and require that the subject matter of all cross motions relate back to the subject matter of motions. If not litigants may be required to file separate applications for the relief they seek. Given the backlog in our courts due to the a number of judicial vacancies which remain, this new requirement could only add to the pile of motions that remain to be decided.

NEW DEVELOPMENT IN FAMILY LAW ARBITRATION

sfava@foxrothschild.com (Sandra C. Fava) — Thu, 02 Jul 2009 23:00:03 -0500

Previously both Jennifer Millner Weisberg and I blogged on a highly publicized New Jersey family law case, Fawzy v. Fawzy. To read my prior post on this case, click here. To read Jennifer's post, click here.

For those of you who may not be familiar with Fawzy, this matter involves parties who opted to participate in binding arbitration as to all outstanding issues in their matter, including a determination of custody and parenting time, as opposed to proceeding with a trial.

Alternate dispute resolution is another method by which parties who have outstanding legal issues between them can select a mutually agreeable individual to serve as a mediator and decide the issues, rather than sit through and bare the expense of an expensive and often lengthy trial. Alternate dispute resolution methods, such as arbitration, are available in nearly every area of the law and not limited to family law matters. People prefer arbitration because it may resolve issues more expeditiously than otherwise having a trial. In addition, the arbitration process can be more informal than deciding issues in a courtroom before a judge. Our courts encourage arbitration as a substitute for litigation. Arbitration conducted by an individual of the parties' own choosing is often less antagonistic than litigation and may minimize the harmful effects of divorce litigation on a family.

In Faherty v. Faherty, 477 A.2d. 1257 (1984), the New Jersey courts approved the arbitration of alimony and child support issues. So when the Fawzy's decided to arbitrate the issues of custody and parenting time- what was the problem?

Well, the answer is nothing, at first. However, after the arbitrator issued his decision, Mr. Fawzy filed an emergent application seeking a review by the trial court of this decision. When the trial court denied his request, he filed an appeal with the Appellate Division. The Appellate Division held that custody and parenting time issues cannot be submitted to binding arbitration. Mrs. Fawzy then filed a petition for certification with the Supreme Court of New Jersey and Mr. Fawzy cross-petitioned. That all occurred last summer. In February the Supreme Court heard oral argument on the matter and on July 1, 2009 their written opinion was published. To read the entire opinion, click here.

It has long been found that the right to parent a child is constitutionally protected and one of the fundamental rights of this country. However, this right is not absolute. Under the parens patriae doctrine, the state has an obligation to intervene when necessary to prevent a child from being harmed. The harm standard is a constitutional imperative that allows the state to intervene in what is otherwise a protected arena of parent-child relations.

In focusing on this fundamental right to parent a child, which includes decision making on behalf of a child, the Supreme Court held that parental autonomy includes the right of parents to choose the form in which to decide their disputes over custody and parenting time issues. This forum includes arbitration. In fact, the majority of states in the US have already addressed this issue and have concluded the parents may submit the issues of custody and parenting time to arbitration in the exercise of their parental autonomy. Just as parents choose to decide day-to-day issues among themselves, they may also decide to sidestep the judicial process by utilizing an arbitrator. This options allows parents to select an individual based on his/her familiarity with the family or understanding of the values that the parents may hold dear and have tried to follow when raising their child.

The right to submit these issues to arbitration is not without boundaries. Fawzy now tells us that: 1) an agreement to arbitrate must be in writing or recorded and must establish that the parties are aware of and have knowingly and voluntarily waived their rights to a trial; 2) a record of documentary evidence adduced during the proceedings must be maintained; 3) testimony must be recorded; and 4) the arbitrator must issue findings of fact and conclusions of law with respect to the award. The arbitrator's award is subject to review under the Arbitration Act, N.J.S.A. 2A:23B-1 to -32, except that a judicial review is also available if a party can establish that the award threatens harms to the child.

What exactly is the standard of judicial review? Where no harm to the child is threatened, there is no basis to infringe upon the parents' choice to be bound by the arbitrator's decision and the parties are limited to the Arbitration Act's remedies. If a prima facie case of harm is advanced, the court must determine the harm issue. If no finding of harm ensues, the award is only subject to review under the Arbitration Act standard. If the court finds harm, the presumption favoring the parents' arbitration choice will be overcome and the court must decide what is in the child's best interests.

To ensure an accurate record is kept, the decision dictates that a verbatim record must be kept of those portions of the arbitration proceedings that relate to custody and parenting time issues only. In addition, the arbitrator must also state in writing or otherwise record findings of fact and conclusions of law with a focus on the best interests standard. An arbitration award regarding custody and parenting time issues that is a result of any other procedure not specifically mentioned herein will be subject to vacation upon motion.

What does Fawzy mean for family law practitioners? It provides another forum to decide issues in what tends to be a more informal, less intimidating, and sometimes faster manner than traditional litigation. Practitioners must be mindful of the specific requirements to the arbitration of family law issues so as to protect the determination.

What does Fawzy mean for litigants? Again, it provides another forum to decide those issues in what may be a more informal, less intimidating and sometimes faster manner than traditional litigation. It also puts mechanisms in place so that the decision of the arbitrator is final and if the rules set forth herein are followed, the decision may be protected assuming there is no harm to the child.

EDITOR'S NOTE: IT WILL BE INTERESTING TO SEE HOW THIS PLAYS OUT IN PRACTICE. REQUIRING VERBATIM RECORDINGS AND SPECIFIC AND COMPREHENSIVE FACT FINDINGS WILL ADD A NEW LEVEL OF COST TO THE MATTER. RECENTLY I HANDLED A 10 PLUS DAY ARBITRATION WHERE THE COURT REPORTERS FEES WERE MORE THAN $25,000. THIS COST IS IN ADDITION TO THE COST OF THE ARBITRATOR WHO WILL PROBABLY CHARGE BETWEEN $325 AND $575 PER HOUR. MOREOVER, I SUSPECT THAT THE LOSING PARTY WILL SIMPLY ARGUE HARM, ATTEMPTING TO MAKE BINDING ARBITRATION NON-BINDING ERIC S. SOLOTOFF

Clarification to the Amended IRS Tax Exemption Provisions

asperalejo@foxrothschild.com (Apple Sulit-Peralejo) — Thu, 02 Jul 2009 09:37:59 -0500

During tax season this past Spring, we posted blog entry entitled "Who Gets The Tax Exemption". This past month in a Chief Counsel Advice (CCA), the IRS has clarified the provisions in the IRS Code relating to exemptions which were discussed in our blog. CCA 200925041 cautions that a Final Judgment of Divorce awarding one party a dependency exemption may not be upheld by the IRS if the Judgment awarding the dependency exemption contains contingencies.

In our prior blog, we discussed the recently amended IRS code, Section 152(e) relating to tax exemptions. Section 152(e) directs, for exemption purposes, that the custodial parent is the one with whom the child resides the greater number of nights during the year regardless of the terms of a divorce decree. However, Section 152(e) does not preclude the non-custodial parent from claiming the exemption so long a the custodial parent executes IRS Form 8332 releasing the exemption. Sandra Fava, the scrivener of the blog, noted that it is important to make sure that there is a procedure in place to have the custodial parent file IRS Form 8332 so that the non-custodial parent will be able to claim the exemption. CCA 200925041 clarifies the procedure in effectuating the exemption through execution of Form 8332 and further recommends additional procedures in order for the non-custodial parent to exercise his or her right to claim the exemption..

CCA 200925041 clarifies that (1) for pre-July 3, 2008 divorce decrees or separation agreements allowing a non-custodial parent to claim an exemption for a child, a non-custodial parent may attach pages of a divorce decree or separation instrument executed on or before July 2, 2008 if the pages constitute a statement substantially similar to the requirements of Form 8332 in effect at the time of the entry of the decree or separation agreement; and (2) for post-July 3, 2008 divorce decrees or separation agreements, a custodial parent's release of a claim to an exemption for a child must be separate from the decree or separation agreement. The release of the exemption my be pursuant to a signed Form 8332 or a document that conforms to the substance of Form 8332 but the document's only purpose must be to release a claim to the exemption.

Also very important is that CCA 200925041 specifically noted that for pre-July 3, 2008 divorce decrees or separation agreements, while in order to obtain the exemption the non-custodial parent may attach pages of a divorce decree or separation instrument executed on or before July 2, 2008, the provisions to the divorce decree or separation agreement must not contain any conditions on claiming the exemption. For example, parties often agree that one party may claim an exemption so long as his or her child support obligation is current. If this type of provision is contained in the divorce decree or the separation agreement, regardless of whether the condition is satisfied, a non-custodial parent will be unable to claim the exemption simply by attaching copies of the decree or separation agreement as has been the practice in the past.

Accordingly, it is important to do the following: (1) If you have a pre-July 3, 2008 divorce decree or settlement agreement that contains conditional requirements and you are the non-custodial parent, discuss with an attorney how to best protect your exemption right and any necessary modifications to your Judgment or your settlement agreement to effectuate your right; and (2) if you are currently separated or about to be separated and are heading to divorce, make sure that you address these issues with an attorney so that you can insure that there are no problems in the future with respect to the IRS and exemptions.

PHYSICAL AND LEGAL CUSTODY DETERMINATIONS - LOOK AT THE FACTS

repstein@foxrothschild.com (Robert A. Epstein) — Thu, 02 Jul 2009 07:47:11 -0500

Custody disputes are often the most emotional part of any divorce litigation. Determining what the physical and legal custodial arrangement will be is a fact-specific analysis that puts at the forefront the best interests of the child. While both parents start out with a presumpton of equal rights in a custody proceeding, fostering a child's relationship with both parents is of utmost importance, as is encouraging both parents' involvement in raising the child.

N.J.S.A. 9:2-4(c) provides for several factors that a trial court must consider in determining whether to award joint custody, sole custody or an alternative that works in the child's best interests. These factors include, but are not limited to, the parents' ability to agree, communicate and cooperate in matters relating to the child; the parents' willingness to accept custody; and the needs of the child. The Appellate Division recently addressed these factors in the context of a physical and legal custodial dispute in Elliott v. Prisock-Elliott, decided June 2, 2009.

For a joint physical and legal custodial arrangement, the New Jersey Supreme Court has held that the children must recognize both parents as sources of "security and love," with a desire to continue both relationships; both parents must be fit and willing to accept custody; and the parents must demonstrate a "potential" for cooperation analyzed outside of the divorce context. A parent involved in such a dispute should understand, though, that he or she need not have been as involved as the other parent in the child rearing process for joint custody to be appropriate.

Specifically as to physical custody, a court will also look at those factors focusing on the financial ability of the parents to provide adequate care in two homes; geographic proximity of those homes (looking at interference with schooling, the children's access to friends and relatives, and traveling between the two locations); demands of employment; and the age and number of children involved.

The New Jersey Supreme Court has determined that, where joint physical custody is not appropriate, the court should consider awarding joint legal custody and physical custody to only one parent with "liberal visitation rights" to the other parent. This way, both parents keep their decision-making roles as to the children and, as practicable, the non-custodial parent maintains a level of companionship with the child provided by joint physical custody.

Based on these considerations, the Appellate Division in Elliott affirmed the trial court's decision rejecting the father's proposal for joint physical custody, assigning sole physical custody to the mother, since the father failed to provide sufficient evidence regarding the joint physical custody considerations outlined above. The sole custody arrangement was also deemed to be in the children's best interests since the mother was primarily responsible for the care and development of the children during the marriage and was most familiar and better able to address their medical, educational and social needs.

Interestingly, however, as to trial court's decision granting sole legal custody to the mother, while the Appellate Division affirmed the trial court's conclusion that the parents could not cooperate for the children during the divorce proceedings, it found that the trial court failed to adequately consider the importance of establishing a custodial plan that would maintain and foster the father's relationship with the children.

Specifically, the Appellate Division noted the trial court's failure to consider years of parental cooperation prior to the divorce proceedings; failure to appreciate in its determination the mother's enrollment of the children in a before-school program that limited the father's parenting time; and the mother's preference for eliminating the father's parenting time entirely where there was evidence of the father abusing the children. As a result, the Appellate Division remanded to the trial judge on the issue, allowing the parties to submit evidence on the legal custody issue.

As described above, physical and legal custody determinations are highly fact-specific considerations ultimately decided upon a review of the statutory factors, always with the best interests of the child at the heart of any determination.

LIMITED DURATION ALIMONY - FOR HOW MUCH AND HOW LONG?

repstein@foxrothschild.com (Robert A. Epstein) — Thu, 02 Jul 2009 07:01:35 -0500

For about a decade, Limited Duration Alimony (LDA) has been an available form of alimony in New Jersey. The questions often asked regarding LDA is, when should it be awarded and, relatedly, for how much and how long?

These questions were recently addressed in the unpublished Appellate Division opinion of Elliott v. Prisock-Elliot, decided on June 2, 2009. Generally, where one spouse is economically dependent upon the other at the end of a marriage, an alimony award helps the dependent spouse achieve a lifestyle "reasonably comparable" to that enjoyed during the marriage. Several factors are included in a Court's alimony determination under N.J.S.A. 2A:34-23, including, but not limited to the dependent's spouse's needs and ability to fulfill them, and the other spouse's ability to contribute.

LDA, though, is specifically intended to address a dependent spouse's economic need for support where the marriage reflected a true partnership, but the marriage itself was too short in duration for a permanent alimony award, and the dependent spouse needs neither education nor job training to return to the workforce that would potentially merit a rehabilitative alimony award. LDA essentially aids the dependent spouse who has the education/job skills to have a career, but devoted efforts instead to the marriage and allowed the other spouse to increase their own earning capacity at the same time.

The Appellate Division found that the trial judge in Elliott failed to adequately consider the alimony factors and the purpose of LDA in granting its award of 10 years of LDA at $30,000 per year on a marriage of less than 10 years at the time the complaint for divorce was filed and approximately 12 years when the dual judgment of divorce was entered. Specifically, the Appellate Division noted the trial court's error as to the length of the marriage; its complete lack of findings as to each spouse's marital contributions other than that each had worked on their own to care for the children; and its insufficient assessment of the dependent spouse's need for alimony and the other spouse's ability to pay. The trial court's decision on alimony was reversed as a result.

While LDA should not be awarded as a substitute for permanent alimony when a permanent award is appropriate, a proper LDA determination requires a careful look at each fact-specific case and how those facts mesh with the statutory alimony factors in New Jersey, as well as a consideration of LDA's overall purpose in aiding a dependent spouse in need. Also, while the amount of an LDA may be modified, N.J.S.A. 2A:34-23(c) prohibits modification of the length of the LDA term except in the case of the broadly termed "unusual circumstances."

APPELLATE DIVISION FINDS DOMESTIC VIOLENCE STATUTE CONSTITUTIONAL

esolotoff@foxrothschild.com (Eric S. Solotoff) — Tue, 30 Jun 2009 21:31:15 -0500

Previously, we blogged upon the Hudson County case of Crespo v. Crespo where the trial judge held that New Jersey's Domestic Violence statute was unconstitutional. On June 18, 2009, in a reported decision, the Appellate Division reversed the decision of the trial court and found that the status was constitutional.

The trial court decision in Crespo was intriguing in that in 1992, the Appellate Division previously found the statute to be constitutional. The Appellate Division in Crespo was similarly surprised that it's binding precedent was "side stepped."

Notwithstanding, the Appellate Division re-affirmed that the lowest standard of proof, preponderance of evidence, was appropriate and constitutional in these matters, noting again the Legislative intent of protecting victims from domestic abuse which has been echoed by the New Jersey Supreme Court. In short, the public policy in this regard, was and is clear.

Stay tuned to see whether this matter is appealed to the New Jersey Supreme Court.

TO EMANCIPATE OR NOT TO EMANCIPATE- THAT IS THE QUESTION

sfava@foxrothschild.com (Sandra C. Fava) — Mon, 29 Jun 2009 22:25:47 -0500

Despite what people often think are iron-clad agreements, foolproof from any misinterpretation, despite best efforts, that may not always be the case. One area that has been given significant recognition for interpretation by our courts is the area of what constitutes emancipation of a child.

This issue was recently addressed in the unpublished Appellate Court opinion, Zingone v. Zingone, decided June 1, 2009, A-0078-08T1. Generally, a parent has no obligation to support an emancipated child. So what constitutes emancipation?

The Supreme Court of New Jersey has held that emancipation can be found when a child marries, joins the military, reaching of an appropriate age, and when a court orders him/her so based upon the child's best interests. Just because a child turns 18 years old only establishes prima facie, not conclusive proof. Whether a child is emancipated at 18 years old depends on the facts of the case.

So what does the court look at? The most important inquiry is whether the child has moved beyond his or her parents' sphere of influence and responsibility and has obtained independent status. To make this determination, one must look at the child's needs, interests and independent resources as well as the family's expectations and the parents' financial ability.

However, if an agreement remains vague as to a triggering emancipation event, as the plaintiff argued in Zingone above, courts will often refer to public policy, which in modern times, encourages a college education, especially where a child shows scholastic aptitude and the parents are able to afford it.

In New Jersey, our highest Court has recognized that generally, financially capable parents should contribute to the higher education of children who are qualified. Even in cases where a child may take a brief break from college, during which time he or she is working full-time, our courts have held that that child is not emancipated because he or she has not yet moved beyond their parents' sphere of influence.

These cases are often extremely fact specific and require examination of several factors before an individual can determine whether or not their child may be emancipated under the laws of this state such that relief from financial obligations would be successful.

APPELLATE DIVISION FINDS WIFE'S WELL INTENTIONED MOTIVATION TURNED INTO ONE WITH A "PURPOSE TO HARASS"

repstein@foxrothschild.com (Robert A. Epstein) — Mon, 29 Jun 2009 06:08:19 -0500

When can one's well intentioned conduct cross the line into a form of domestic violence under New Jersey's Prevention of Domestic Violence Act? That was the question addressed by the Appellate Division in P. O’D v. J. O’D, where it affirmed the trial court’s entry of a final restraining order against the defendant mother under the PDVA based on the trial court's finding that the wife harassed her ex-husband. Two children were born of the marriage, and the parties’ Property Settlement Agreement (PSA) provided that the parties would equally share residential custody (2 or 3 weekdays and alternating weekends).

The husband testified during a final hearing on a prior temporary restraining order that, starting in September 2007 for a 3-month period, the wife started calling him late at night and using profanity during their conversations. According to his testimony, there were a series of phone calls where the wife would keep calling until he would answer the phone. He further alleged, and the wife did not deny, that she started abusing alcohol at this time. On one night within the 3-month period, the wife threatened the husband’s well-being during her phone calls. A couple of days later, the husband was notified by the wife’s boyfriend that the children were in danger and that the husband should take them from her mother’s custody, which he did successfully.

In obtaining the TRO, the husband also alleged at the time that the wife repeatedly showed up at his residence without notice or invitation, banged on the door if no one answered and would even enter the residence when the husband was not home, using obscenities towards his second wife about him. Regarding the wife’s alcoholism, he added that on one occasion, the wife drove drunk with their son in the car where the son was forced to grab the wheel to avoid an accident.

The parties executed a Consent Order at the final hearing, agreeing to restrain each party from entering the residence of the other; restraining communications between them unless they dealt with the children and, in such cases, communications were to be made in writing unless in case of a life or death emergency; transferring custody of the children to the husband; providing the wife with supervised visitation for a 30-day period following the date of the Order; and requiring the wife to attend and demonstrate compliance with an after-work alcoholic rehabilitation program and counseling during the 30-day period. Should she fully comply, shared parenting time pursuant to the PSA would resume. While the parties never executed the Consent Order, they both testified at the subsequent hearing forming the basis of the appeal that they believed they were bound by its terms.

One month later, the wife submitted proof to the husband of her completion of the program and counseling, but the husband refused to turn the children over to the wife, asserting that the wife needed to provide breathalyzer results and a urine analysis demonstrating her non-consumption of alcohol. The police intervened at the wife’s call and the husband agreed to return the children to her the following day after he took them to a company holiday party. During the party, however, the wife repeatedly called the parties’ son to find out when the children would be brought to her and after the party she texted the husband with the same question. Shortly thereafter, the children were brought to her, but, according to the wife, the son was very upset because the husband was going to be divorced from his second wife.

Apparently this information prompted the wife to call the husband four times that night within a few minutes of each other, but none were answered. The wife then called the husband’s second wife twice shortly thereafter, to which the husband responded with a text message telling her to stop calling. The mother soon after responded that she needed to talk to him about their son, to which the husband responded by calling the son directly to see that everything was okay. The husband then texted the wife to tell her to stop calling, that she had ruined the work party by calling the son repeatedly and that he was not allowed to call. The mother then responded that they needed to talk about their son and that she was coming over to his place, to which the father responded not to come over and not to call. The wife again replied that she was not crazy and that they needed to talk about their son, subsequently texting again that it was about the son.

The wife went to the husband’s house uninvited and began banging on the door and loudly demanding to speak with the husband when she was not allowed in. Approximately 15 minutes later, she was allowed in, but the parties began shouting at each other. The husband’s second wife commented that the wife was acting like white trash, to which the wife responded by slapping the second wife in the face. The wife then left and the husband’s second wife called the police. A new TRO was entered against the wife, but no change in custody was ordered prior to the final hearing. Prior to the final hearing, however, the son found a wine bottle and claimed to have found a glass of wine in the mother’s office. As a result, the son decided to take his sister and went to live with the husband out of concerns for their own safety. The mother, however, denied alcohol abuse.

At the final hearing on this second TRO, the trial judge determined that the wife had engaged in harassment by a preponderance of the evidence. A final restraining order was entered against her, the father was awarded residential custody of the children, joint legal custody was left in place pursuant to the PSA, and the wife was permitted supervised visitation and telephone contact with the children. In so holding, the judge based the conclusion on the entire historical pattern of behavior, including late night telephone calls, coming to the husband’s residence uninvited and also a finding that the wife assaulted the second wife. While the judge found that the wife was motivated out of concern for the son, her conduct was done to harass or annoy the husband.

In affirming the trial court’s decision, the Appellate Division set forth the PDVA’s definition of harassment as:

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or serious annoy such other person.

The trial judge did not specify which section the wife violated, but the Appellate Division found, based on the trial opinion, that section (a) was at issue, which requires proof that: (1) defendant made or caused to be made a communication; (2) defendant's purpose in making or causing the communication to be made was to harass another person; and (3) the communication was in one of the specified manners or any other manner similarly likely to cause annoyance or alarm to its intended recipient. The Appellate Division quoted from the New Jersey Supreme Court’s opinion in State v. Hoffman, 149 N.J. 564 (1997), in adding that “annoyance” means to “disturb, irritate, or bother” within the realm of the statute, that a “purpose to harass may be inferred from the evidence presented,” and that the determination may be based on common sense and experience.

Analyzing the present facts, the Appellate Division found sufficient evidence presented to support the trial judge’s findings that the wife acted with a “purpose to harass.” In particular, the Appellate Division noted that, while the mother may initially have been motivated out of concern for the son, by the time she reached the husband’s home (if not sooner) the motivation was transformed while the son had already calmed down. The Court added that the wife’s means to inform the father of the son’s sentiment could be deemed intentionally harassing, especially in light of the late hours and offensive language used. Moreover, the wife’s recent history of conduct cemented the finding, but concluded that the wife’s drinking did not impact the decision based on her claim that she was sober. While the Appellate Division affirmed a finding of harassment under section (a) of the harassment statute, it also found that sufficient evidence existed for such a finding under section (c) as well.

The Appellate Division also rejected the wife’s argument that the trial court’s Order should be vacated because the judge, after finding harassment, did not also find that a restraining order was required to protect the husband. Quoting from its opinion in Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), the Court stated that the guiding standard as to “whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29a(1) to -29a(6), to protect the victim from an immediate danger or to prevent further abuse. N.J.S.A. 2C:25-29a requires that a trial judge consider, in pertinent part:

(1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse; and

(2) The existence of immediate danger to person or property.

The Appellate Division noted that, while the trial judge did not specifically address these considerations, the judge’s overall conclusion that the wife’s behavior was harmfully impulsive to those she cared about was sufficient under the Silver standard.

Finally, the Appellate Division rejected the wife’s argument that the husband was tactically using the PDVA against her on the pending issue of child custody in a corresponding matrimonial matter, finding no evidence of same and adding that the son voluntarily left the mother’s custody prior to the final hearing and refused to return to her residence on the date of the hearing. Further, since the custody order was entered without prejudice, the wife could file an application in the matrimonial matter to restore the prior custody arrangement.

APPELLATE DIVISION FINDS THAT TRIAL JUDGE SHOULD HAVE GRANTED MOTION TO RECUSE HIMSELF BASED ON PRIOR RELATIONSHIP AND LITIGATION WITH PARTY'S ATTORNEY

repstein@foxrothschild.com (Robert A. Epstein) — Sun, 28 Jun 2009 21:06:58 -0500

A difficult question often faced by litigants is whether a trial judge is deciding his or her case with a fair and unbiased eye. Should a litigant feel that they are not getting a fair shake, the party can file a motion for recusal of the trial judge. R. 1:12-2 of the New Jersey Rules of Court, however, requires that the motion be made to the actual trial judge whose recusal is sought.

This issue was recently addressed by the Appellate Division in the published opinion of Vic Chandok v. Rekha Chandok. Rekha appealed from the judgment of divorce on various issues, but the Appellate Division only addressed her challenge of the trial court's Order denying her motion to recuse the trial judge. The original motion was based on Rekha's assertion that she could not receive a fair and unbiased hearing because of a prior relationship between the trial judge and her attorney where they were partners in a law firm that went under, subsequently followed by contentious litigation between the judge and attorney. Ultimately, the trial judge ruled that Vic's business and investment interests were exempt from distribution; Rekha was not entitled to alimony; no child support was granted over and above Vic's maximum obligation pursuant to the Child Support Guidelines; the parties were granted joint legal custody; and Rekha was to pay in excess of $40,000 to a discovery master.

The Appellate Division first detailed the history between the trial judge and Rekha's attorney, noting, among other things, that the judge placed the attorney on his disqualification list once he was appointed to the bench. The judge subsequently filed a complaint for dissolution of the partnership, accusing the attorney of wrongdoing. The matter, however, ultimately settled. Six years later in 2004, the judge removed the attorney from the recusal list after Rekha's attorney in another matter did not seek the judge's recusal and had actually appeared before the judge several times.

Shortly thereafter in 2004, however, Rekha's attorney in yet another matter sought the judge's recusal based on their prior litigation. The judge denied that motion, concluding that the attorney had appeared before him previously with "no ill will, bias or prejudice," revealed that the settlement was satisfactory to him, and that the prior relationship would not affect his decision making ability in any case in which the attorney was involved. The judge also denied the motion in the prior case because he felt the attorney had been substituted in as a tactical move.

Here, the Appellate Division noted that Rekha's attorney was substituted as her attorney 2 months prior to trial and that, prior thereto, the judge criticized Rekha for failing to comply with discovery. Once the attorney commenced representation, two Case Management Conferences were held prior to her filing the recusal motion. The judge continued to find Rekha in violation of discovery Orders and ultimately issued an Order suppressing her pleadings and precluding her from producing evidence at trial, scheduled for 9 days after the Order's issuance. It was only on the day before trial that the motion for recusal was filed on short notice. In denying the motion, the trial judge noted that he had already twice denied such motions in other matters with which the attorney was involved and that he was relying on his reasoning in relation to one of those prior denials. The judge also added that Rekha deliberately tried to delay trial both before and after she retained the attorney and that the attorney knew when he entered the case that a trial date was set.

Reviewing R. 1:12-2 of the New Jersey Rules of Court, which states that "[a]ny party, on motion made to the judge before trial . . . and stating the reasons therefor, may seek that judge's disqualification," the Appellate Division noted that such decisions are within the sound discretion of the judge whose recusal is sought. Quoting the New Jersey Supreme Court's opinion in State v. Marshall, 148 N.J. 89 (1997), the Court stated, "On the other hand, '[i]t is unnecessary to prove actual prejudice on the part of the court, but rather "the mere appearance of bias may require disqualification,"' so long as the belief of unfairness is 'objectively reasonable.'"

Relying primarily on her attorney's Certification in support of her recusal motion, the Appellate Division determined that the recusal motion should have been granted, agreeing with Rekha that a reasonable person could have concluded, based on the specifically contentious circumstances between the judge and her attorney, that the judge might be biased against the attorney based on their prior relationship and litigation. The Appellate Division then concluded, however, that the issue should have been raised and resolved prior to the attorney's entry into the case; the judge should have notified Vic's attorney of the relationship as well before allowing the attorney's entry; and Rekha's attorney should have alerted the court and Vic's attorney that he could not assure that Rekha would not seek the judge's recusal. Notably, when Rekha's attorney entered the case with the consent of Vic's attorney, Vic's attorney was not made aware of the relationship at issue. The Court added that the judge should have recused himself from all prior litigation involving Rekha's attorney.

In finding that the recusal motion should have been granted, the Appellate Division also concluded that a new trial was necessary, specifically directing the new judge to determine whether the conduct of Rekha or her attorney merited an award of fees or levying of sanctions to reduce Vic's expenses required for the retrial.

ANTI-LEPIS CLAUSES - SAY WHAT YOU MEAN AND MEAN WHAT YOU SAY

repstein@foxrothschild.com (Robert A. Epstein) — Wed, 17 Jun 2009 06:51:36 -0500

One issue often looming over the preparation of a Property Settlement Agreement is whether or not the parties agree to waive statutory rights to seek a modification of support. Otherwise known as an "anti-Lepis" clause, such language seeks to essentially overcome the courts' "equitable power . . . to modify alimony and support orders at any time," under N.J.S.A. 2A:34-23 and the New Jersey Supreme Court's seminal decision in Lepis v. Lepis, 83 N.J. 139, 145 (1980). Drafting such an enforceable anti-Lepis clause is not as easy as it sounds, as found by the Appellate Division in Stefanacci v. Stefanacci.

The facts of the case are relatively straightforward, as it was the language of the Property Settlement Agreement at issue that formed the basis of the dispute. After a 20-year marriage, the parties filed for divorce. The parties ultimately resolved the matter, memorialized in an oral settlement stated on the record. Included in the oral stipulation was Joseph's agreement to pay Marcia limited duration alimony for 13.5 years or until Marcia's cohabitation with another person unrelated by blood or marriage for 120 days; Marcia's remarriage; Joseph's death; or Marcia's death. Provision was also made for the commencement of payments and Marcia's ability to seek child support should alimony cease and the children are unemancipated.

The parties subsequently memorialized the terms in a Property Settlement Agreement, which also addressed alimony in detail. In one paragraph of the alimony section, the PSA specifically stated that Marcia "waiv[ed] any ability to attempt to modify or extend the . . . term before any [c]ourt of competent jurisdiction." In the following paragraph, however, was another section entitled, "Waiver of Alimony" which stated:

Beyond the aforesaid alimony provided for in Article II, Paragraph 1, it is specifically understood . . . that both the [plaintiff] and [defendant] irrevocably waive any and all right and claim for alimony and support from the other party, past, present and future. Each party acknowledges that they are adequately provided for and capable of providing for their own support and maintenance, comfort and welfare. Each party recognizes that their income or asset structure may change from time to time even substantially and recognize that such change may have a detrimental effect upon their ability to provide for themselves. In full awareness that such potential change of circumstances may occur, the parties specifically agree that this agreement and especially, but not limited to their respective waivers of alimony, shall continue in full force and effect and shall not be altered or modified by either party or any judicial process notwithstanding that the parties may hereafter experience hardship. The parties have envisioned such change of circumstances and have agreed upon a distribution of their property and assets to contemplate such changes and provide for them. This Agreement shall have firm stability and shall not be subject to modification by reason of any change of circumstances encountered by either or both of the parties.

In 2007, Joseph filed an application to reduce his alimony obligation based on a purported change in his financial circumstances - a $150,000 reduction in his income which he claimed rendered him unable to pay $143,000 in annual alimony and other expenses for the children required by the parties' settlement. The trial court denied Joseph's application, claiming that the "Waiver of Alimony" section constituted an "anti-Lepis" clause precluding alimony modifications.

On appeal, the Appellate Division initially noted the well established contract principle that the PSA is to be enforced to the extent it is fair and equitable, consistent with the parties' intent. Analyzing the limited duration alimony at issue, the Appellate Division then noted that such support, in following N.J.S.A. 2A:34-23(c), may be modified "when either party experiences a substantial change in financial circumstances."

Noting that parties may waive statutory rights to seek modification through use of what is commonly known as an "anti-Lepis" clause, the Appellate Division quoted from its earlier decision in Morris v. Morris, 263 N.J. Super. 237 (App. Div. 1993) for the proposition that such a clause must be entered by the parties "with full knowledge of all present and reasonably foreseeable future circumstances" and, more explicitly must:

bargain for a fixed payment or establish the criteria for payment to the dependent spouse, irrespective of circumstances that in the usual case would give rise to Lepis modifications of their agreement. Lepis established an approach that courts must take when faced with a request for modification of child support or alimony. Where the parties have agreed on the amount of support or alimony, Lepis permits later modification to the extent that changed circumstances render the agreed terms no longer "fair and equitable."

To recapitulate, we must give an equivocal answer to the question of whether an anti-Lepis clause is enforceable. It is both yes and no . . . . If circumstances have made the parties' standards unreasonable, they can in extreme cases be modified. In less extreme cases, as here, the payments can be accrued with enforcement conditioned upon the payment of reasonable periodic payments. In short, the court should endeavor to carry out the agreement on a reasonable basis.

Applying these principles to Joseph and Marcia's PSA, the Appellate Division initially concluded that terms within the agreement regarding support, alimony and equitable distribution were interrelated - i.e., Marcia could seek child support in the event that alimony payments terminate. It then noted that while the PSA prevented Marcia from seeking any increase in alimony, it was silent as to Joseph's ability to seek modification.

The Appellate Division then analyzed the "Waiver of Alimony" section quoted above, noting that its language referencing the parties' mutual waiver of other alimony claims "past, present and future" waived claims "in addition to" or "outside of" the alimony award detailed in the earlier portion of the PSA. Thus, the Appellate Division held that the trial court's reliance on the last sentence of this paragraph - "This Agreement shall have firm stability and shall not be subject to modification by reason of any change of circumstances encountered by either or both of the parties," did not apply to and, thus did not impact, the alimony terms found earlier in the agreement. Rather, the Court concluded that it only related to the other alimony claims "past, present and future."

Moreover, the Appellate Division also held that the PSA neither specifically indicated that Joseph's alimony obligation was non-modifiable should he experience changed financial circumstances nor did it expressly waive modification rights granted in Lepis.

Accordingly, the Appellate Division, for three separate reasons, remanded for a plenary hearing to determine whether the PSA actually included an anti-Lepis clause precluding modification of the amount of alimony : (1) It found that the oral settlement placed on the record contained no provision prohibiting an alimony modification and the final hearing expressed no indication that the parties were contemplating an anti-Lepis clause; (2) the record was unclear as to consideration provided for the modification waivers sought within the language of the PSA detailed above since any such modification required the parties' knowledge as to what they bargained for and the bargain's intended consequences; and (3) additional evidence was required to determine the parties' intended meaning of the modification language.

Tax Issues can Have Serious Consequences for Settlements

jmillner@foxrothschild.com (Jennifer Weisberg Millner) — Mon, 15 Jun 2009 13:44:27 -0500

The disposition of the marital home is oftentimes the most pressing financial issue in a divorce case. The current real estate market brings tax issues to the forefront which must be given consideration. When negotiating a settlement, (or preparing for trial) it is important to understand the tax consequences of the disposition of property. Too often, parties simply think they are just going to divide assets at the value that they have today on a statement rather than understanding the tax affected value. One area that has to be carefully considered is the marital home.

As a general rule, when you sell your primary residence, you can make up to $250,000 in profit if you're a single owner, twice that if you're married, and not owe any capital gains taxes. However, in the 5 years prior to the sale of the house, you need to have lived in the house for at least 24 months in that 5-year period. In other words, the home must have been your principal residence.

In a matrimonial action, and in particular, in a long marriage where the parties have owned a house for many years, this rule can have a profound affect on a party who has not been living in the house while the action has been pending. Add to this a real estate market that us sluggish and in which houses are taking years to sell, a settlement that says the parties shall “sell the house and divide the proceeds equally”, can really result in an unequal amount to the parties after taxes if one parties pays a substantial capital gains tax and the other, who has been living in the house pending sale, does not. SO, if you are going to let one parent stay in the house for the next six years until junior finishes high school and the real estate market hopefully bounces back, make sure you have considered the possible tax consequences.

Capital gains of course, are not limited to houses. The same concern exists for investments and any other assets that have increased in value. So if Jane is going to get the AT&T stock that was a wedding gift 25 years ago and worth $100,000 today and John is going to get the money market account with $100,000, it’s really not an equal distribution of assets, because Jane is getting an asset that is going to be taxed.

The above examples are meant to stress the importance of understanding the effect that taxes can have on a distribution of assets and the importance of getting sound advise from your attorney and accountant or other tax professional prior to signing any agreement.

Hostility: Divorce Litigants and Divorce Attorneys

asperalejo@foxrothschild.com (Apple Sulit-Peralejo) — Mon, 15 Jun 2009 11:16:52 -0500

As we were sitting in the Courthouse waiting for a hearing with the Court, a client once said to me, "you are too nice" after I had said "good morning" to our adversary. I guess from the perspective of a litigant, it seems odd that their attorney would actually have an amicable relationship with the "enemy". However, litigants need to understand that the conduct of their attorneys can impact the outcome of their case-- being unfriendly and belligerent certainly does not score points for the Judge and fighting for the sake of fighting totally detracts from what should be the most important focus of the divorce, the Litigant and the Litigant' s rights and needs.

I had an adversary several years ago who was extremely belligerent both in and out of the courtroom. While initially, this attorney's client believed that the attorney was "protecting his interest" and was being very "aggressive", as the case progressed, the client learned (the hard way) that such an approach did nothing but to deter from the real issues in the case while increasing the cost of the litigation. Each case is supposed to be about the litigant and the important issues impacting the litigant's family and not about the "battle". Divorce litigants should hire attorneys for two reasons (1) the attorney knows the law and (2) the attorney will be objective. If objectivity is lost, the other side will surely find benefit.

In short, your interests aren't being protected if the focus of your case is the fight. "The best victory is when the opponent surrenders of its own accord before there are any actual hostilities... It is best to win without fighting." The Art of War, Sun Tzu 600 B.C

COHABITATION TO TERMINATE ALIMONY?

sfava@foxrothschild.com (Sandra C. Fava) — Sun, 14 Jun 2009 12:06:08 -0500

Many times a Property Settlement Agreement or Judgment of Divorce will address the payment of alimony. An alimony calculation, among other factors, is calculated upon the length of the marriage, the income of the parties, the assets each will receive by way of the divorce, the age and health of the parties, and the age of children, if any, etc. The standard in New Jersey for a divorcing spouse is the ability to maintain the 'marital standard of living' or as close thereto as may be economically possible.

So, does permanent alimony really mean forever? The answer depends on the language in an Agreement or Judgment of Divorce. There is case law in New Jersey stating that cohabitation may be a cause to terminate alimony. However, cohabitation alone is insufficient unless the Agreement states otherwise. There also needs to be some financial benefit or economic intermingling.

Recently, the Appellate Division issued an unpublished decision in the matter of Adessa v. Adessa, A-2854-07T2, decided May 29, 2009, wherein husband filed a motion seeking to terminate his alimony obligation based upon his former wife's cohabitation or alternatively, requesting a hearing and discovery to determine if there was an economic benefit being received by former wife as a result of her relationship.

The parties married in 1984 and divorced in 2006. Their Agreement required husband to pay permanent alimony, which would be terminable upon either party's death, wife's remarriage or her cohabitation. Husband's motion sought termination based upon cohabitation. Husband alleged cohabitation was proven by the fact that former wife and boyfriend purchased property together in Maine; former wife requested that two months of alimony be sent care of her boyfriend to a PO Box issued to boyfriend in Maine; alleging that former wife told husband to send alimony checks to her condo in Long Branch until it was sold because she was planning to move to Maine; former wife and boyfriend once lived together in the Long Branch condo; and husband received mail from former wife with a PO Box return address for a PO Box issued to boyfriend.

Former wife responded to the application and asserted that she was not cohabiting; that boyfriend lived in a separate residence; there was no economic benefit to her as a result of their relationship; that she was not planning to move to Maine as she had a business in New Jersey; and that she had only purchased a vacation home with boyfriend where they spend weekends or vacations.

The trial judge found that husband had failed to prove cohabitation and denied husband's application. He then appealed. The Appellate Court upheld the lower court's finding.

In order to have been successful on appeal, husband must prove that there is prima facie case of cohabitation before he is entitled to discovery and a plenary hearing. Where an Agreement provides for termination of alimony based upon cohabitation a court does not need to delve into the economics of the dependent spouse. However, the first hurdle is proving that cohabitation does in fact exist. If done, the supporting spouse need only show that the dependent spouse is involved in a marital-type relationship.

Having failed to prove the prerequisite cohabitation, husband's application failed.

As an aside, it can be difficult to prove cohabitation for the purpose of terminating alimony. Individuals who have termination clauses in their Agreements are often aware of those clauses and may be consciously planning their relationship so as to ensure that the alimony is not terminated.

EDITOR'S NOTE: There were several unreported cases where the finding was that with facts like these, the alimony payor was, at least, entitled to a discovery and plenary hearing to determine economic benefit. For whatever reason, the husband in this case was not so lucky. ERIC S. SOLOTOFF

RETROACTIVE MODIFICATION OF CHILD SUPPORT ALLOWED IN LIMITED CIRCUMSTANCES

esolotoff@foxrothschild.com (Eric S. Solotoff) — Thu, 11 Jun 2009 05:45:53 -0500

An opinion issued by Judge McGann in Monmouth County in December 2008 was released for publication in June 8, 2009. In the case of Centanni v. Centanni, the Court held again that child support could be modified retroactively in limited circumstances.

In this tragic case, one of the parties' children died in a car accident in October 2007. The father did not file a motion to modify his child support per the parties' 2004 Property Settlement Agreement until January 2008.

While typically the law is that child support cannot be retroactively modified, there are limited circumstances where it is possible. However, prior to this case, there were no reported decisions dealing with the death of a child. Judge McGann held that:

Upon the tragic death of the parties’ daughter, the duty to pay support for her ceased. Nothing within the four corners of the statute evinces an intent on the part of the legislature to bar retroactive modification upon such an occurrence. Moreover, there are other equities at work here. To bar retroactive modification would be to punish financially an obligor who has thoughtfully, and in good faith, allowed an appropriate period of grieving and healing to take place before seeking redress in court. Consequently, a bar on retroactive modifications would encourage an inopportunely-timed filing while families are still in the midst of coping with the tragedy.

Given the previous reported decisions allowing retroactive modification in certain circumstances, for instance, upon emancipation, one has to wonder why the mother fought the retroactive termination of support. Certainly, the legal fees that she expended were going to substantially cut into if not exceed the support at issue.

FROM EMANCIPATION TO COLLEGE EXPENSES - WHAT IS A PARENT'S FINANCIAL OBLIGATION?

repstein@foxrothschild.com (Robert A. Epstein) — Sun, 07 Jun 2009 09:01:22 -0500

Recently, I addressed the question as to when a child is emancipated under the eyes of New Jersey law. As I indicated there, the New Jersey Supreme Court defines emancipation as "the act by which a parent relinquishes the right to custody and is relieved of the duty to support a child." Newburgh v. Arrigo, 88 N.J. 529 (1982). A related question also addressed by the Court in Newburgh is a parent's obligation to contribute towards a child's postgraduate education expenses.

The Supreme Court in Newburgh set forth a non-exhaustive list of factors for a court to consider in determining a parent's obligation to contribute to such educational expenses. These factors were subsequently codified by statute at N.J.S.A. 2A:34-23(a) as follows:

1. Whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education.

2. The effect of the background, values, and goals of the parent on the reasonableness of the expectation of the child for higher education.

3. The amount of the contribution sought by the child for the cost of higher education.

4. The ability of the parent to pay that cost.

5. The relationship of the requested contribution to the kind of school or course of study sought by the child.

6. The financial resources of both parties.

7. The commitment to and aptitude of the child for the requested education.

8. The financial resources of the child, including assets owned individually or held in custodianship or trust.

9. The ability of the child to earn income during the school year or vacation.

10. The availability of financial aid in the form of college grants and loans.

11. The child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance.

12. The relationship of the education requested to any prior training and to the overall long-range goals of the child.

This issue recently was addressed in the unpublished Appellate Division decision of Subbie v. Subbie. The facts are relatively straightforward except for the fact that the parties were married and divorced to each other twice. They had three children, a son and two daughters. While the divorce complaint was pending in May 2006, the Wife sought interim, pendente lite relief for the children's college expenses. An Order was subsequently entered by the trial court directing the Husband to reimburse the Wife for $1,800 towards their son's 2005-06 college tuition, and also ordered an equal sharing of said costs through May 2007. All other relief on this issue sought by the Wife was denied pending a plenary hearing.

Months later, the Wife filed a motion to enforce litigant's rights because the Husband failed to reimburse her the $1,800 previously ordered. The Husband then cross-moved to emancipate the son, who was in his fifth year of college, and to re-compute his child support obligation. The Court found the Husband in violation of litigant's rights, granted counsel fees, and reserved the issues of emancipation and recalculation of support to the plenary hearing.

Following the plenary hearing, the trial court held that had the marriage remained intact, both parents - each of whom had college degrees - would have expected their daughter to attend college and that they each possessed the financial means to assist with college costs and would have contributed accordingly. The trial court also noted that the Husband should contribute $6,000 based on his financial ability despite his strained relationship with the daughter and that the cost to attend her school of choice - NYU - was beyond both parents' financial means. The trial court further ordered that the Husband was still required to reimburse the $1,800 (with interest) for the son's college previously ordered, but that he did not have to pay for the son's fifth year of college.

On appeal, the Appellate Division held that the trial court properly considered the factors outlined above in concluding that the Husband: (1) could contribute towards the daughter's higher education expense; (2) recognized that she would be attending college based on her academic achievements; (3) did not object to her attending college, but rather the actual college selection; and (4) the relationship between them was not always strained and, in actuality, was strained due to the divorce itself and the Husband's failure to attempt to resolve any damage the divorce proceedings caused to his relationship with the children.

The Appellate Division also concluded that the trial court properly found the son emancipated as of 2006 and that, as a result, the Husband's child support obligation would decrease. The Husband argued that the son should be declared emancipated sooner because he earned approximately $10,000 in 2005-06 and 2006-07; bought a new car; and incurred large credit card debt. The trial court, however, noted that the Husband contributed to the son's college expenses even while the son worked before the divorce and that the Wife simply wanted him to continue contributed the same amount that he did before the divorce transpired. It also correctly concluded that the Husband should pay the $1,800 previously ordered because his failure to pay for same was in "flagrant violation" of that earlier Order.

Questions regarding emancipation and college expenses are especially relevant in light of the current economic environment. Each situation is highly fact-specific, with an analysis of the above factors, as well as those discussed in my prior entry on emancipation. Consulting with an experienced matrimonial attorney will assist in your evaluation on these difficult financial issues involving your children future and educational well being.

POSSIBLE PARENTAL ALIENATION GIVEN SHORT SHRIFT BY APPELLATE DIVISION

esolotoff@foxrothschild.com (Eric S. Solotoff) — Fri, 05 Jun 2009 21:16:57 -0500

We have previously blogged on the issue of whether a separate tort cause of action exists for parental alienation. At present there are at least two cases in the Appellate Division addressing this issue. In at least one of the cases, there is the direction that parental alienation should be dealt with in the family court, but not as a tort.

In an unreported Appellate Division decision dated June 5, 2009 entitled Cole v. Cole one of the issues raised in an application was parental alienation on the mother's part. Specifically, the father alleged hat the mother seeks to alienate the children from him. He made a number of
general allegations that defendant was not abiding by the parenting schedule fixed by court order, including contentions that on multiple occasions defendant refused to allow court ordered parenting time or to permit the children to speak to him on the phone. In her responsive certification, the mother denied that she interferes with the father's. She stated that the children were "well, adjusted, healthy and normal, both physically and emotionally," although she did indicate problems with the children when they returned from defendant's home.

The trial court did not change custody or even give a hearing. The judge did find that certain additional parenting time should be considered for the father but denied his motion without prejudice. The father appealed arguing among other things that the decision condoned the mother's bad acts. The Appellate Division affirmed. In doing so, there was a very interesting quote, as follows:

After a careful review of the record, we concur with the trial judge that defendant has not made a sufficient showing that changed circumstances have occurred and that "a genuine and substantial issue" of custody is present. Certainly, the hostility between these parents does not benefit the children. In a divorce setting, oftentimes the greatest test of a parent's love for the children is to foster, in the face of adversity, the children's love for and relationship with the other parent and to work with the other parent in a civil manner to benefit the children. It is a circumstance that forces a parent to dig deep into himself or herself and put that love for the children ahead of the bitterness felt toward the former spouse. However, defendant's proposal to change custody will not accomplish that nor remedy any problem here.

If, indeed, parenting time is being denied, enforcement remedies should be sought. If defendant seeks additional parenting time, such as an additional weekday dinner as suggested by the trial judge, that relief can be requested from the trial court if the parties cannot agree. The record does not indicate that the circumstances here are so deleterious to the children that "a genuine and substantial issue" of custody
is present.

The full record is obviously not included in the opinion. Of note, however, is that there does not seem to be a finding that the mother was not interfering with the father's parenting time. If that is the case, it sure seems that her bad acts have been condoned by the Court.

Perhaps a motion seeking to change custody was premature and a motion for enforcement, make up parenting time, etc. may have been more appropriate at first. Maybe not. Had that motion have been made, it would not be shocking if the result was that a court did not grant a plenary hearing, and further, makes no real findings at all - but rather just admonishes the parent not to violate the order in the future.

Would it be shocking if that empowered the custodial parent to continue acting in an aberrant way, since nothing happened at the first motion. In that event, it is conceivable that the non-custodial parent either becomes resigned to this treatment or another motion is filed.

Maybe then the case is dubbed a "high conflict" case and a parent coordinator is appointed. Does the conduct stop - or is it just now become the province of the parent coordinator? If the Court really wont enforce an Order because perhaps there are conflicting Certifications, does the aggrieved party ever get any real relief? Does the situation with the children worsen? The Court above said that a change of custody would not remedy the situation. Why not? If interference with custody and/or alienation were really dealt with and sanctions were really imposed, one would thing that that would be a deterrent to future bad conduct. If loss of custody was a remedy, that too may be a deterrent.

The argument made in at least one of the pending Appellate Division cases was that the situation with the children was too far gone and the only real remedy was a tort action where money damages were possible. If the Family Part does not effectively deal with these issues, what is so wrong with that?

The aspiration goals of the above quote are laudable. But are they realistic? I would expect that the quote would be lost on the very people to whom it was directed in this case - and to those who it would be directed in similar cases.

COURT'S CAN'T "SPLIT THE BABY" WHEN IN COMES TO DUELING APPRAISALS

sfava@foxrothschild.com (Sandra C. Fava) — Tue, 02 Jun 2009 20:01:54 -0500

If you have never been through the process of a divorce yourself you may not know how, at the end of the day, things are actually decided. For example, how do attorneys or the court calculate how much of a spouse's pension or 401(k) gets divided? How do attorneys or the court calculate the value of real property? Experts are obtained to appraise assets in order to obtain values. Often parties each get their own experts and their are dueling appraisals. If the parties cannot agree on a value, a court will have to hear testimony from both experts and make the call.

That was an issue that was recently addressed in the published Appellate Division decision of Pansini Custom Design Associates, LLC and Roger Parkin Joint Venture v. City of Ocean City and Patrick Newton and Saving Our Station Coalition, A-2003-07T1, decided May 14, 2009.

Many people who go through the process of divorce own real property. If parties are unable to reach an agreement as to the value of real property owned so as to determine how much each may be entitled to, how does the issue get resolved? Typically, the parties may either retain a joint real estate appraiser or each obtain their own real estate appraiser who will create an appraisal. In the latter scenario, the result may be competing real estate appraisals and values. If no resolution is reached among the parties and the issue is left to a court to decide in a trial, the importance and validity of these real estate appraisals will be tested.

There are experts available on nearly every topic if you look hard enough. In family law, real estate experts abound. Many attorneys have their "go to" experts or others who may solicit them for business. No matter what, whatever expert is involved in your matter should be selected with thought and consideration to the specific facts of your case and the ultimate goals of the clients they work for.

Once an expert is selected and the real estate appraisal performed, how does the court determine which expert to rely upon when called upon to make a determination as to the value of real property? Are not all real estate appraisals the same? The answer is simply no. Courts have a body of case law that guides them on what considerations and factors they must focus on when called upon to make this determination.

A court's need for an expert to testify arises "where the fact [-] finder is not expected to have sufficient knowledge or experience and would have to speculate without the aid of expert testimony." Torres v. Schripps, Inc., 342 N.J. Super. 419, 430 (App. Div. 2001). While expert testimony is generally necessary to determine the fair market value of real property, Jacobitti v. Jacobitti, 263 N.J. Super. 608, 613 (App. Div. 1993), the court is not required to accept the testimony of an expert witness and may accept some testimony and reject other parts, Torres supra 342 N.J. Super. at 431. Where there's a question or rejection of the expert's testimony, the judge may appoint an independent expert. Id. at 436.

What it comes down to is the judge is left to weigh and evaluate the expert's opinion and credibility in order to reach a reasoned, just and factually supported conclusion. Pansini supra at p.9. The trial judge in Pansini decided to take the values and discounts given by three different experts and average them in order to reach a final number for fair market value. The Appellate Division tells us that "averaging...is not an appropriate methodology for assessing divergent values. The reasoned weight of authority provides sound policy reasons for such a conclusion. Properties are not fungible. Even with adjustments during the appraisal process, there are sufficient differences that must be weighed and considered by the fact-finder in addressing the ultimate issue in dispute." Id. at p. 13.

The Court goes on to state that averaging "will intentionally distort and skew the values to insure a high or low number without concern that the fact finder must resolve the issue with a careful analysis of data that may result in adoption of one appraisal figure over another." Id. at p. 14.

Pansini tells us that while it may seem like an easy and fair on its face solution, simply averaging competing expert's appraisal values is not sound methodology and should not be done by trial judges faced to decide such an issue as the fair market value of real property.

On another note, when using a real estate expert, don't be afraid to ask questions about comparable values used, discounts applied, etc. If the report and/or expert is going to be tested during a trial, you want to be sure that your expert can defend his/her report and will do well under the stress and pressure of a trial. Always talk to your attorney who should as well know and understand the expert's report and be able to present and defend it during a trial.