2012 was another banner year for reported family law decisions. Among other matters, the New Jersey Supreme Court decided Gere v. Louis, Segal v. Lynch, and D.W. v. R.W. that made the top ten. Although Justice Virginia Long’s retirement brought a close to her reign as the seminal writer of family law opinions in this state, 2012 saw the emergence of Judge Marie E. Lihotz of the Appellate Division. Judge Lihotz authored Clark v. Clark, Jacoby v. Jacoby, and Ducey v. Ducey that also made the top ten. As Chair of the Supreme Court Family Part Practice Committee, Judge Lihotz is likely to remain an important voice in the development of our case law for years to come.
The following are my selections for the ten most important reported cases decided in 2012. These cases addressed significant issues relevant to the practice of divorce and family law. This presentation will review each opinion and the impact that it will have upon our practice and upon future Family Court matters. Practice tips will also be discussed as to how matrimonial attorneys can best utilize these decisions.
Gere v. Louis, 209 N.J. 486 (2012)
Issue: Is a plaintiff’s legal malpractice claim barred under Puder v. Buechel, 183 N.J. 428 (2005), when, as part of her resolution of a post-judgment property dispute with her former spouse, plaintiff entered a settlement agreement that included a reservation of rights to sue her former attorneys?
Holding: No. The malpractice action is not barred because it is factually distinguishable from the Puder holding, which is an equity-based exception to Ziegelheim v. Apollo, 128 N.J. 250 (1992).
Discussion: For over thirty years, Plaintiff, Julia Gere, was married to Peter Ricker. In 1997, divorce proceedings commenced. On March 13, 2000, a property settlement agreement (PSA) was entered that resolved the distribution of substantial assets which were acquired during the marriage. During the divorce proceedings, each party was represented by sophisticated counsel in connection with the negotiation, preparation, and execution of the PSA.
The provision which was the basis to the malpractice claims arose from Article 17 – “Ancillary Real Estate Investments” – of the PSA. Provision 17.1(a) of the PSA, stated that as of April 1, 2000, plaintiff had six (6) months to review all financial information regarding the investments and notify her former spouse whether or not she will remain an equal partner. In the event plaintiff did not notify her former spouse in writing, provision 17.1(a) of the PSA states that plaintiff would continue to maintain all the assets jointly and equally pursuant to a Partnership Agreement.
On October 11, 2000, Gere’s attorney Mr. Louis prepared a letter to the former spouse’s attorney, confirming that Gere wanted to maintain a one-half interest in all the properties, except for the marina. Post-judgment litigation ensued and Mr. Louis’s letter of October 11, 2000 was an issue. It was disputed whether Gere authorized its issuance and the meaning of the letter. At that point, Mr. Louis withdrew from his representation. Gere subsequently hired Mr. DeBartolo to represent her in the post-judgment litigation.
On September 30, 2002, Gere submitted a certification that the October 11, 2000 letter only referred to the business aspect of the marina and not the real estate since she wanted to avoid risks associated with the business operations. However, in Gere’s subsequent certification, dated July 10, 2003, she claimed that the letter was not authorized or intended by her. Gere and her former spouse entered into a 60 day discovery period. At the end of the 60 days, cross-motions for summary judgment were filed. The trial court denied the motions and ordered a plenary hearing.
At the time of the plenary hearing in 2006, Gere replaced Mr. DeBartolo with Mr. Soranno to represent her in the post-judgment litigation. The plenary hearing began on April 12, 2006 and concluded after eight (8), non-consecutive days, on October 12, 2006. Prior to the trial court rendering its decision, on July 27, 2007 Gere and her former spouse entered into a settlement, on the record, that would supplement the original PSA. The supplemental agreement allowed Gere to retain an interest as of January 1, 2007 in 50% of the real estate of the marina and 40% of the business operations of the marina. Gere claimed that she agreed to the reduced interest to avoid the risk of receiving nothing. The agreement also included a provision that Gere was not prevented from bringing claims against third parties (including her former attorneys).
At the time this agreement was placed on the record, Gere had two (2) attorneys present. Mr. Soranno represented her with regard to the post-judgment litigation, and Ms. Acciavatti represented her with regard to the contemplated malpractice claims against her former attorneys and experts. The trial court allowed the record to reflect that Gere was not precluded from suing her former attorneys because she entered into this supplemental agreement.
Gere filed malpractice claims against Louis and DeBartolo on or about November 2007. Gere alleged that the attorneys were negligent and as a consequence she received less in the July 2007 settlement than she was originally entitled to under the original PSA.
Both defendants moved for summary judgment claiming the matters were barred by Puder. The trial court agreed with the defendants and further barred any claims against Louis because the six (6) year statute of limitations had run. Gere appealed to the Appellate Division, which affirmed the trial court’s decision in an unpublished opinion.
The Supreme Court granted certification that was limited to the issue of whether Puder barred Gere’s malpractice claim against DeBartolo. The Supreme Court also granted amicus curiae status to the New Jersey State Bar Association.
Gere claimed that her matter was factually distinguishable from Puder because she took no contradictory positions and that she objectively made a reasonable decision to mitigate losses in the July 2007 settlement. The Supreme Court emphasized New Jersey’s strong public policy in favor of settling litigation. The Court made clear that Puder did not erect an absolute bar to malpractice claims where a former client enters into a settlement with regard to the underlying action before obtaining a decision with respect to the complained-of conduct of the attorney. Puder is only an exception – not a new rule – to the equitable principles set forth in Ziegelheim which permitted a litigant to sue a former attorney after a settlement had been reached. See also Guido v. Duane Morris, LLP, 202 N.J. 79, 94 (2010).
The Supreme Court found there was no basis to apply the “equity-based exception” of Puder to this case. The Court was not persuaded that Gere’s statements to the trial court in support of the July 2007 settlement precluded her from making a claim against DeBartolo. Also, since the matter was decided by way of summary judgment, the Supreme Court had to view the record in the light most favorable to plaintiff. Thus, the Supreme Court reversed and remanded the matter to the trial court for further proceedings.
Observation: This decision is relevant as to procedure and process – not whether any attorney committed malpractice. Practitioners should be aware that the procedure could be changing as the New Jersey State Legislature is now considering S-2215/A-2553 which would modify the statute of limitations for attorney malpractice from six (6) years to two (2) years consistent with the statute of limitations for medical malpractice.
In family law, more than in any other practice, it is not uncommon to have more than one attorney retained by a client during the course of a case. When a client believes that prior counsel has committed malpractice, the question arises whether the case can be settled without jeopardizing the potential malpractice claim. This is an important question because in family law, over 95% of all cases filed do settle at some point. Does the litigant have to try the case to conclusion to find out if he was damaged by the actions of prior counsel and the extent thereto? Or can the litigant settle the case and mitigate his damages (if you will) and then pursue a malpractice case to receive damages from former counsel? Ziegelheim made clear that a party who settles a case is not precluded from bringing a malpractice suit against the attorney who advised the client to settle. Puder suggested that when a litigant raises her hand and testifies that the settlement is fair and equitable, she is barred from later taking action against prior counsel. From Ziegelheim to Puder to Gere, the Court comes full circle limiting Puder to little more than the facts of that case. Note that in Gere, the litigant was keenly aware of Puder and even brought her malpractice attorney to court and made clear that she was settling to mitigate damages and that she was preserving her right to sue former counsel. In her words, “It’s the best that I could do, and I am satisfied with it.” In that regard, Gere is probably the right result.
For those seeking to reconcile the rulings in Ziegelheim, Puder and Gere, consider the following: Ziegelheim raised her hand and testified that her Agreement was fair because her attorney told her she could only expect to receive 10%-20% of the marital estate. Puder was advised to settle the case but later backed out of the deal and then entered a new deal for more money which she testified was fair. So the original settlement which she claimed was the product of malpractice was never implemented. Gere settled her case but made clear it was a compromise “the best that I could do” because of alleged malpractice.
Segal v. Lynch and Schofel, 211 N.J. 230
Issue #1: Is an attorney, serving as a court-appointed parenting coordinator, entitled to an award of parenting coordinator fees for the time spent responding to a litigant’s grievances?
Holding: Yes. In this case, the response to the grievances was in part necessitated by court order and therefore was akin to a report to the court of the kind contemplated by the parenting coordinator’s retainer agreement, which permitted her to charge fees in order to prepare reports to the court.
Issue #2: Is an attorney, serving as a court-appointed parenting coordinator, entitled to an award of counsel fees in connection with motions seeking to compel discovery, motions for reconsideration, and the successful defense of those orders before the Appellate Division?
Holding: No. Attorneys who represent themselves are not entitled to be paid for their time just like all other pro se litigants who would be denied such compensation.
Discussion: The plaintiff, Segal, and the defendant, Lynch (who was not a party to this appeal), had a common law marriage in Canada, as a result of which they had two (2) children together. After their separation, Lynch and the children moved to New Jersey. In 2006, Segal commenced litigation against Lynch for joint custody and extended parenting time. The trial judge appointed Linda Schofel, Esq. to serve as the parenting coordinator in the custody dispute. Schofel is a social worker and licensed attorney. In accordance with the Guidelines set forth in the Parenting Coordinator Pilot Program, Schofel presented her proposed retainer agreement to the litigants. That agreement set forth an explanation of Schofel’s fees and also provided Schofel with the right to assess her costs disproportionately if she were to determine that either of the parties is abusing the process. Both parties signed the retainer agreement.
In the months that followed, Segal and Schofel engaged in a series of disputes wherein Segal set forth numerous grievances against Schofel in her role as parenting coordinator. In November 2007, Segal sent Schofel an email which listed twenty grievances that he had against her. Schofel replied almost immediately and indicated that she would send a detailed response to Segal’s grievances within the next thirty days. She also advised Segal that in accordance with the terms of the retainer agreement relating to disproportionate assessment of costs, she believed that Segal, and not Lynch, should be billed for the time it would take her to respond to the grievances. Segal responded by stating that if a court were to require him to pay her fees, he would do so.
In December, Segal’s attorney advised the court in writing about the fee dispute with Schofel and indicated that Schofel was refusing to discuss the matter with Segal. Schofel responded to the court by way of letter outlining the steps she took in order to resolve the dispute. As a result, the court issued an order, requiring Segal to show cause as to why he should not be mandated to pay all invoices from Schofel.
In January 2008, Schofel sent counsel for both parties her certification in response to the grievances asserted by Segal. The certification was eighty-nine pages in length, responded individually to each of Segal’s grievances, and attached more than 200 pages of supporting exhibits. In response, Segal filed a certification requesting a hearing on the grievances and requesting that the fee dispute be referred to arbitration.
In April 2008, the court issued an order which denied Segal’s request for a hearing, denied his request that the dispute be sent to fee arbitration, found that his grievances against Schofel were without merit, and ordered Segal to pay $45,433.52 to Schofel, representing $12,128.95 owed for Schofel’s services as parenting coordinator and $33,304.57 for her time spent responding to his grievances. The court stated that Schofel was entitled to be awarded fees for the time spent responding to the grievances because her retainer agreement specifically stated that she will charge the parties for “time spent preparing notes, recommendations or reports for the parties, the attorneys and/or the Court.”
In June 2008, the court issued another order denying Segal’s request to compel members of Schofel’s law firm to produce documents and to compel depositions of three (3) of the four (4) members of that firm. The court also granted the law firm’s motion for an award of counsel fees, citing as its authority R. 4:23-1(c). In a subsequent order, the court denied Segal’s motion to compel Schofel to produce documents regarding other matters in which she served as parenting coordinator and documents she had exchanged with members of her law firm. It also granted Schofel’s request for counsel fees relating to the motion to compel the production of documents. Segal filed a motion for reconsideration. Schofel’s law firm, appearing as pro se, opposed reconsideration and cross-moved for counsel fees related to the motion for reconsideration. Schofel argued that after she was relieved as parenting coordinator, she attempted to end her involvement with the matter, but that Segal’s motions required her to respond and that she was entitled to counsel fees for her efforts. The court denied Segal’s motion for reconsideration and awarded the law firm counsel fees for Schofel’s time spent responding to that motion.
Segal appealed the trial judge’s orders. The Appellate Division affirmed the orders awarding fees to Schofel in all respects, including the time spent responding to Segal’s grievances and the time spent responding to Segal’s subpoenas. The Appellate Division also upheld the award of fees for Schofel’s time spent responding to the reconsideration motion. Schofel then moved before the Appellate Division for an award of attorney’s fees incurred in connection with her successful defense of the appeal and the Appellate Division granted her motion pursuant to R. 2:11-4.
Segal subsequently filed a petition for certification before the Supreme Court, which was granted. Segal argued that fees for responding to a grievance are not authorized by the guidelines set forth by the Supreme Court for the parenting coordinator pilot program and that Schofel’s certification in response to the grievances was not a report to the court. He also argued that Schofel, acting pro se, was not entitled to an award of counsel fees, because no attorney represented her. He also challenged the award of fees by the Appellate Division, arguing that R. 2:11-4, which permits fees in family proceedings, is similarly limited to fees incurred by parties.
Schofel, in response, argued that she was entitled to fees for the time spent responding to the grievances, because she did so in her capacity as the parenting coordinator who was preparing a report to the court. She also argued that there are sound public policy reasons for permitting a parenting coordinator who is also an attorney to be awarded counsel fees when proceeding pro se.
The Supreme Court affirmed in part and reversed in part. With regard to the court’s award of fees to Schofel for her time spent in preparing a response to Segal’s grievances, the Court upheld the Appellate Division. The Court held that the retainer agreement made clear that the parties would pay for time spent preparing reports to the court. Because the response to the grievances was in part necessitated by the issuance of the court’s order to show cause, it was akin to a report to the court of the kind contemplated by the retainer agreement. In addition, Schofel notified Segal of her intention to charge him for the time spent responding to his grievances. The Court held that the exchange of emails between the parties estopped Segal from denying that he agreed to pay for Schofel’s time. In addition, the trial court considered and rejected every one of Segal’s grievances as completely meritless. In that context, the Court could have exercised its inherent power to sanction a party for behavior that is vexatious, burdensome, and harassing, and could have supported an award of fees on that ground.
The Court, however, reversed the trial court’s decision to award fees to Schofel. It held that R. 4:23-1(c) is not a source of authorization to award fees as a sanction for discovery violations. None of the limited grounds that R. 4:23-1 designates as being a permissible support for an award was presented as the basis on which Schofel sought, and on which the trial court awarded fees. The Court did, however, uphold the award of fees to Schofel for the time she spent attending her own deposition.
With regard to the award of counsel fees to Schofel for the time spent defending against Segal’s motions and his appeal, the Court held that Schofel could not be treated any differently than every other pro se litigant. The Court found no basis on which to conclude that attorneys who represent themselves are entitled to be paid for their time when all other litigants who choose to represent themselves would be denied such compensation.
Finally, the Court found no error in the trial court’s denial of Segal’s request for a hearing to address his grievances against Schofel. Nothing in Segal’s submissions to the court suggested that there existed a genuine, material, and legitimate factual dispute that would warrant testimony or that would require resolution in a plenary hearing.
Observation: In 2006, the Supreme Court implemented a pilot program in Bergen County, Union County, Middlesex County, and Morris/Sussex County. As part of the pilot program, the Court established guidelines to be followed by the trial courts when appointing a parenting coordinator. Since those guidelines were established, the courts have provided practitioners with more guidance as to the parenting coordinator program. In addition to the Supreme Court’s decision in Segal, the Appellate Division recently decided Milne v. Goldenberg, 428 N.J. Super. 184 (App. Div. 2012). In Milne v. Goldenberg, the question became whether the guidelines established by the Supreme Court applied when a parenting coordinator was appointed outside of one of the pilot counties. The Appellate Division very clearly provided an affirmative answer. Judge Lihotz, in her decision, wrote, “although we are aware of no reported authority binding a non-pilot county to the Guidelines, we have no hesitation in ordering such a result.”
Under the guidelines implementing the parenting coordinator pilot program, an attorney can only serve as parenting coordinator if the parties consent. Under the guidelines, a parenting coordinator may be a “social worker, a psychologist, a psychiatrist, or a marriage and family therapist.” In Milne, the Appellate Division reversed the trial court’s appointment of an attorney as parenting coordinator.
Since the Supreme Court’s decision in Segal and the Appellate Division’s decision in Milne, the Parenting Coordinator Pilot Program was terminated, effective November 26, 2012. See Notice to the Bar: Parenting Coordinators – Conclusion of Pilot Program; Continuing Authority to Appoint in Individual Cases (November 13, 2012); http://www.judiciary.state.nj.us/notices/2012/n121126a.pdf. The termination of the Pilot Program came about at the recommendation of both the Conference of Family Presiding Judges and the Supreme Court Family Part Practice Committee. The Notice to the Bar states that while the official program has ended, family judges have the authority to appoint a parenting coordinator in any vicinage either by consent of both parties or upon motion by a party.
The decision to end the Parenting Coordinator Pilot Program does not render the decisions in Segal and Milne moot. It remains to be seen whether the termination of the official program will have any effect on the appointment of parenting coordinators or whether trial courts will continue to appoint coordinators at their discretion.
D.W. v. R.W., 212 N.J. 232 (2012)
Issue: When there is a presumed father and there is a reasonable possibility that parentage is in doubt, what is the standard for the court to compel genetic testing?
Holding: A court may compel genetic testing pursuant to the New Jersey Parentage Act, unless the party opposed to such testing presents “good cause” for not ordering the test.
Discussion: The husband and wife were married for twenty-seven years. During the course of the marriage, the wife gave birth to three (3) children. The youngest child, Mark, was born in 1987. In 2006, the wife moved out of the marital home and filed for divorce. Shortly thereafter, the husband began to suspect that Mark was not his child. The wife later admitted that she had been intimate with her brother-in-law, Donald, in the latter part of 1986, around the time of Mark’s conception. The husband became suspicious of Mark’s paternity and purchased a home DNA testing kit. Without telling Mark the purpose of the DNA testing, he submitted DNA samples to a laboratory for paternity testing, which revealed that Mark was not his biological son. He did not disclose the results to Mark at the time. Shortly thereafter, Mark learned from another source that the husband might not be his biological father. In February 2007, the husband filed a complaint against Donald, alleging that Donald was Mark’s biological father and demanding reimbursement from him for the monies spent rearing Mark. He then filed a motion to compel genetic testing and joined Mark, for discovery purposes only, as a third party.
In the meantime, the husband’s relationship with Mark began to deteriorate. By February 2008, the two stopped communicating on a regular basis. By August 2008, their relationship was almost non-existent. By April 2009, they had no relationship at all and a once intact family was completely broken.
In support of the husband’s request for genetic testing, he argued that he had the inherent right to know if Mark is his biological child. The wife claimed that genetic testing would not be in Mark’s best interests because Mark expressed to her that he would like to choose when the testing is done. Mark also testified that he did not feel it was in his best interests to resolve his paternity at the present time due to other events in his life that were causing him stress.
The trial judge rejected the husband’s request for genetic testing, relying on the best-interests-of-the-child standard set forth M.F. v. N.H., 252 N.J. Super. 420 (App. Div. 1991). The court held that the husband failed to prove by clear and convincing evidence that testing to determine paternity was in the best interests of Mark. The court acknowledged that by denying the request for genetic testing, the paternity litigation would be virtually over and shortly thereafter granted Donald’s request for summary judgment. In deciding against genetic testing, the trial judge dismissed the results of the surreptitious home DNA test on the ground that Mark had a right to consent to submit to a DNA test. It further pointed out that if the husband were to succeed in the parentage action, Mark would lose the right of inheritance and everyone would know with certainty that Mark is not his son. The court further rejected the husband’s assertion that he had a right to know whether Mark was his son. The court stated that it was not the husband’s right to know because the Parentage Act is focused upon what is right for the child and that its principal purpose was not to provide a cause of action for a husband who found out he was not the father to seek reimbursement. The court concluded that the husband did not provide clear and convincing evidence that genetic testing would be in the best interests of Mark.
The Appellate Division affirmed the trial court’s decision and concluded that the trial court properly denied the request for genetic testing based on statutory and case precedent.
The Supreme Court reversed the decisions of the trial court and Appellate Division, finding that neither court referenced the applicable statutory provision in the New Jersey Parentage Act, N.J.S.A. 9:17-48, which addresses the circumstances that warrant an order of genetic testing when parentage is in doubt.
Pursuant to the Parentage Act, no action to prove parentage may be instituted more than 5 years after the child attains the age of majority, which occurs when the child turns 18. Accordingly, the Act established a 23-year window in which to file a reimbursement action. In this case, Mark was 20 years old at the time the husband filed his complaint against Donald.
The challenge for the husband in this case was to overcome the presumption that he is Mark’s biological father. That presumption may be rebutted by clear and convincing evidence only. The Court held that genetic testing demonstrating non-paternity would meet the “clear and convincing evidence” standard to rebut the presumption.
The Parentage Act further provides that after a parentage action is brought, “the court shall order the child and the parties to submit to blood tests or genetic tests unless…the court finds, good cause for not ordering the tests.” The Court made clear that the burden is placed on the opponent (here Donald) to show that genetic testing should not go forward.
The statute, however, does not provide a definition of “good cause.” Under M.F. v. N.H., it was believed that the best interests of the child should control in determining whether to order testing. The Court rejected Donald’s argument, finding that the facts of M.F. were drastically different from the case at bar. In M.F., the plaintiff filed a parentage action to obtain visitation rights to an infant he claimed to have fathered during a relationship with a married woman. In that case, the Appellate Division declined to order blood tests, noting that the woman’s husband was entitled to the benefit of the paternity presumption and that a strong public policy favored the preserving of the family unit where neither the husband nor the wife disavowed the husband’s paternity.
Here, the Supreme Court held that the Parentage Act controls, rather than the Appellate Division’s decision in M.F. The standard articulated in M.F. is specific to the facts of that case and could not be applicable to the facts of D.W. In D.W., the presumed father was in fact disavowing his paternity; the family unit was far from intact; the relationship between the father and son was beyond repair; and the son was not a minor child.
The Court further held that the husband showed a “reasonable possibility” that Donald is the biological father and therefore it would be necessary to determine whether there is good cause to deny genetic testing, a burden which the Court made clear fell on Donald to satisfy. The Court then set forth eleven (11) factors which must be considered in a trial court’s good cause determination whether to grant or deny genetic testing:
(1) The length of time between the proceeding to adjudicate parentage and the time that the presumed or acknowledged father was placed on notice that he might not be the genetic father;
(2) The length of time during which the presumed or acknowledged father has assumed the role of father of the child;
(3) The facts surrounding the presumed or acknowledged father’s discovery of his possible nonpaternity;
(4) The nature of the relationship between the child and the presumed or acknowledged father;
(5) The nature of the relationship between the child and any alleged father;
(6) The age of the child;
(7) The degree of physical, mental, and emotional harm that may result to the child if presumed or acknowledged paternity is successfully disproved;
(8) The extent to which the passage of time reduces the chances of establishing the paternity of another man and a child-support obligation in favor of the child;
(9) The extent, if any, to which uncertainty of parentage exists in the child’s mind;
(10) The child’s interest in knowing family and genetic background, including medical and emotional history; and
(11) Other factors that may affect the equities arising from the disruption of the father-child relationship between the child and the presumed or acknowledged father or the chance of other harm to the child.
After applying these factors to the facts of the case, and weighing them in
consideration with Mark’s best interests, the Court determined that Donald did not satisfy the good cause requirement of the Parentage Act. The Court accordingly concluded that the trial court and the Appellate Division erred in depriving the husband of the discovery necessary to proceed with his parentage action. It therefore reversed the judgment of the Appellate Division.
Observation: The law presumes that the husband is the father of a child born during the course of his marriage. N.J.S.A. 9:17-43(a)(1). This presumption of parentage can only be overcome by clear and convincing evidence. N.J.S.A. 9:17-43(b). Under N.J.S.A. 9:17-48(d), when there is a reasonable possibility that parentage is in doubt, good cause must be shown why genetic testing should not be undertaken.
Under M.F. v. N.H., the standard for compelling genetic testing to prove paternity appeared to be the best interests of the child. Clearly, with this decision, the Court moves away from the best interest of the child standard and now adopts an eleven factor “good cause” test as mandated by N.J.S.A. 9:17-48. Although best interest of the child has not been made irrelevant, the eleven factors now dictate the outcome of the case. In this case, the child was twenty years of age and made clear he did not favor the testing. The child’s position obviously did not prevail.
What is not clear is after genetic testing assuming the husband is able to establish he is not the father, whether he will be entitled to reimbursement from the biological father and if so, how those damages are to be determined.
Clark v. Clark, 429 N.J. Super. 61
(App. Div. 2012)
Issue: Does extraordinary, flagrant, financial misconduct during the marriage rise to the level of egregious fault warranting a denial of an otherwise valid claim for alimony?
Holding: Yes. When marital misconduct, even though economically based, evinces significant, willful wrongdoing, designed to fraudulently and purposefully deprive one’s spouse of the economic benefits of the marital partnership, the acts transcend fault affecting the economic status quo, and in fact violate societal norms, and equate to egregious fault.
Discussion: The husband and wife were married for twenty-eight years. During the marriage, the parties were equal shareholders in DeFranc, Inc., which owned and operated a pharmacy. The husband was the founder and pharmacist. The wife acted as the pharmacy’s bookkeeper, which required her to oversee the payroll, staff maintenance, and maintain the financials. The wife filed her Complaint for Divorce in 2007. In 2008, the pharmacy’s accountant warned the parties that the pharmacy was facing failure due to a cash flow shortage. The husband began discussions to sell the business and received several purchase offers. The wife rejected these offers and the husband was forced to file a motion to compel her cooperation. The judge denied the husband’s motion, finding that he failed to prove the financial necessity of a sale and because the pharmacy provided a substantial source of income for the family. The judge, however, appointed a receiver to review the pharmacy’s financials. The pharmacy ultimately filed for bankruptcy.
During the discovery process, the husband learned that the wife held a savings account and safe deposit boxes titled solely in her name. The savings account reflected large deposits. An accountant was brought in to examine the pharmacy’s cash flow and it was determined that there was a pattern of consistent removal of significant cash receipts from the pharmacy. The husband argued that the wife used her position as bookkeeper to divert cash from the business, moving it between bank accounts, her basement, and safe deposit boxes. The husband alleged that the wife took more than $400,000 from the cash receipts of the business during a four (4) year period by diverting 34% to 40% of the daily cash receipts.
During trial, the husband presented witnesses who testified against the wife. One was an employee of the pharmacy, who testified that the wife urged her to lie to the husband by telling him she forgot she had borrowed $10,000 from the wife and discarded the receipt. The other was a friend of the parties, who testified that she saw the wife come from the basement of the parties’ home with stacks of cash. The accountant also served as an expert witness and testified that there were significant discrepancies between the recorded cash sales and bank deposits and that there were missing records for months at a time.
The wife testified in her own defense and alleged that the discrepancies in the pharmacy’s financials were as a result of a malfunctioning computer system. She also argued that the pharmacy employees had access to the cash and could have taken it.
In support of her request for alimony, the wife noted that the husband remained at the pharmacy after being hired by the new owner and earned $107,000 per year. She, however, remained unemployed after the husband forced her to leave the pharmacy. She argued that she was unable to find a job and had no income or resources.
The trial judge ordered the husband to pay permanent alimony to the wife of $600 per week. The judge further determined that the testimony of the accounting expert supported a finding that the wife took and hid sums of money as the bookkeeper from the business and from the marriage. Accordingly, the judge ordered the wife to repay the husband one-half (1/2) of the amount wrongfully withdrawn.
The husband appealed the alimony award, arguing that the wife’s egregious conduct extinguished any obligation to pay alimony. In the alternative, the husband argued that the trial judge erred in denying his request to offset his monthly alimony payments by the amount of the wife’s theft.
The Appellate Division reversed the alimony provision of the final judgment of divorce based on the trial court’s failure to consider the issue of marital fault. The issue of marital fault was addressed by the Supreme Court in Mani v. Mani, 183 N.J. 70 (2005). Mani held that marital fault typically does not garner much, if any, weight. However, Mani acknowledged two exceptions: (1) cases in which the fault has affected the parties’ economic life; and (2) cases in which the fault so violates societal norms that continuing the economic bonds between the parties would confound notions of simple justice. With respect to the first exception, the Court held “to the extent that marital misconduct affects the economic status quo of the parties, it may be taken into consideration in the calculation of alimony.” However, when egregious conduct occurs, “it may be considered by the court, not in calculating an alimony award, but in the initial determination of whether alimony should be allowed at all.”
The Appellate Division found that the wife’s conduct transcended mere economic impact, “as she not only betrayed the sanctity of the marital vows of trust, but also kicked their economic security in the teeth by secretly draining cash from the pharmacy.” The Appellate Division found that her actions “smack of criminality and demonstrate a willful and serious violation of societal norms.”
The Appellate Division conceded that fault which merely affects the economic status quo of the parties such as gambling, excessive spending, waste of marital assets, or other acts of bad judgment do not equate to “egregious fault.” However, the Appellate Division, held “when marital misconduct, even though economically based, evinces significant, willful wrongdoing, designed to fraudulently and purposefully deprive one’s spouse of the economic benefits of the marital partnership, the acts transcend fault affecting the economic status quo, and in fact violate societal norms, and equate to egregious fault.” The Appellate Division then found that the trial judge’s failure to consider whether the wife’s economic improprieties were so outrageous as to warrant denial of an alimony award was a fatal omission. Accordingly, the Appellate Division vacated the alimony award and remanded the matter back to the trial court for further consideration. On remand, the Appellate Division instructed the trial court to assess the wife’s conduct in light of the standard articulated and to discern whether egregious fault has been demonstrated. If so, the trial court must then consider whether the conduct obviates the propriety of an award of alimony.
Observation: Marital fault which affects the parties’ economic life is to be considered in the alimony calculus. Egregious conduct if established is to be considered by the Court in whether to allow alimony at all. Clark is a game changer because it says for the first time that marital fault of an economic nature can rise to the level of egregious conduct thereby barring alimony. Until Clark, egregious conduct was believed to be limited to cases where there was physical harm (e.g. deliberately infecting a spouse with a loathsome disease). As a result of the Supreme Court’s decision in Mani in 2005, marital fault became largely irrelevant in divorce cases. Does Clark signal the reemergence of marital fault both in the calculation of alimony and the initial determination of whether alimony should be awarded at all?
J.E.V. v. K.V., 426 N.J. Super. 475
(App. Div. 2012)
Issue: Is it appropriate to deny a wife permanent alimony and award instead limited duration alimony for a period longer than the duration of the marriage when the parties were married for 9 ½ years and the wife has mental health issues?
Holding: Yes. A limited duration alimony award for a period of ten years was equitable in a situation where the parties were married for 9 ½ years and the wife suffered from a mental health condition which did not render her totally and permanently disabled.
Discussion: The husband and wife were married for 9 ½ years, which resulted in the birth of two (2) children. At the time of trial, the husband was 44 years old and the wife was 37 years old. The parties met when the husband was a dermatology resident in medical school. Shortly after the marriage, the parties moved to California so that the husband could participate in a fellowship. During that year, the wife was employed and earned $65,000 annually. The husband then accepted a position as director of surgical service at a major hospital in New Jersey. The wife took a position as a pharmaceutical sales representative, but stopped working when she became pregnant with the parties’ first child in 1998. In 2001, the husband opened his own medical practice and became extremely successful. The wife worked as office manager and administrator and worked about twenty hours per week for the practice. After the birth of their children, the parties hired full-time nannies and housekeepers. It is undisputed that the parties enjoyed an affluent lifestyle.
The wife had a history of mental and emotional problems. In 2003, she was diagnosed with mania and anxiety. Soon thereafter, she was diagnosed with bipolar disorder and had symptoms of borderline personality disorder. The wife testified that she experienced numerous side effects from her medications and had been hospitalized on three (3) separate occasions. During trial, the wife’s psychiatrist testified that she might be able to get a job but expressed reservations about her ability to retain a job. Her vocational expert testified that the wife was unemployable and was unable to work. By contrast, the husband’s vocational expert testified that the wife’s past employment history and her demonstrated success in those positions permitted her to obtain employment as a sales representative, secretary, or general office clerk.
The trial judge awarded the wife limited duration alimony of $25,527 per month for the first two (2) years and $23,403 per month for the next eight (8) years. She ordered alimony to cease in 2019, when the youngest child turns eighteen and presumably enters college. The trial judge found that permanent alimony was not warranted in light of the intermediate term of the marriage, wife’s age, her failure to prove a permanent disability, her ability to earn income in the future, and her success in past employment endeavors. The judge found that the wife could earn approximately $35,000 annually and based the amount of the award on the wife’s budget.
Neither party appealed the amount of alimony awarded. The wife appealed the duration of the alimony award, arguing that her mental health problems entitled her to permanent alimony. The Appellate Division rejected the wife’s argument. The Court reiterated the law as established in N.J.S.A. 2A:34-23(c), which provides that “in determining the length of the term, the court shall consider the length of time it would reasonably take for the recipient to improve his or her earning capacity to a level where limited duration alimony is no longer appropriate.” The Court further stated that it is well established that a court dealing with an economically dependent spouse should consider the dependent spouse’s needs, his or her ability to contribute to the fulfillment of those needs, and the supporting spouse’s ability to maintain the dependent spouse at the former standard of living. It further held that limited duration alimony is awarded in recognition of a dependent spouse’s contributions to a relatively short-term marriage that demonstrated attributes of a marital partnership.
The Appellate Division also held that the “defining distinction” between permanent and limited duration alimony is the length of the marriage. In this case, the Appellate Division agreed with the trial judge that this was a marriage of intermediate duration and that such a term merits an alimony award because the wife was economically dependent on the husband for most of the marriage and made contributions to the husband’s medical practice. The Court cautioned, however, that financial dependency does not dictate an award of permanent alimony in all instances. In certain circumstances, the inability of the dependent spouse to ever earn enough income to maintain the marital lifestyle on her own may be an appropriate consideration.
In this case, the Court found that the record demonstrated a need for alimony, such that the wife became economically dependent on the husband during the second half of the marriage and there was a significant education disparity between the parties which permitted the husband to earn substantial income at levels that the wife’s education would simply not permit. The Court noted, however, that complete economic dependency arose only in the second half of the marriage. While the wife’s mental health issues complicated this matter, the Appellate Division agreed with the trial judge that the wife would be able to return to the workforce. The Court found her to be a woman fully involved in the life of her children and community and engaged in numerous activities which require skill, dedication of time, energy, and attention.
The Appellate Division agreed with the trial judge that the term of ten years represented a fair award, such that it would permit the wife to remain the primary caretaker of the children until the younger child enters college. It held that given the intermediate term of the marriage, wife’s age, and the limited duration of the very affluent lifestyle which the wife wished to maintain, coupled with the finding that her mental health condition did not render her totally and permanently disabled, the ten year term and the amount of the award was an equitable response to the circumstances of both parties.
Observation: This decision dispels the notion that a limited duration alimony award must always be for a term less than the duration of the marriage. On the other hand, this case distances itself from Hughes v. Hughes, 311 N.J. Super. 15 (App. Div. 1998) which did not disturb an award of permanent alimony in a ten year marriage.
Remember this quote from J.E.V. v. K.V.: “Financial dependency…does not dictate an award of permanent alimony in all instances.” Translation: in ten years, the wife is not going to earn the equivalent of her $23,000.00 per month alimony award – but that is not a reason to award permanent alimony in a short or intermediate duration marriage.
This case is significant not only because of the holding, but because of the composition of the panel: Judge Cuff (now temporarily assigned to the Supreme Court) and Judge Lihotz (Chair of the Supreme Court Family Part Practice Committee).
There is a so-called “alimony reform” group making claims about abuses of permanent alimony awards and calling for a Blue Ribbon Commission to re-examine the law of alimony in the state. This case throws cold water on the anecdotal claims by some about just how easy it is to get permanent alimony in New Jersey.
Jacoby v. Jacoby, 427 N.J. Super. 109
(App. Div. 2012)
Issue: Does a child’s attendance at college away from home automatically entitle the obligor to a reduction in his or her child support obligation?
Holding: No. A child’s attendance at college is a change in circumstance warranting review of the child support amount. However, there is no presumption that a child’s required financial support lessens because he or she attends college.
Discussion: The parties divorced after almost fifteen years of marriage in 2001. As part of their divorce settlement agreement, the parties shared joint legal custody of their two (2) children, with the wife being designated as the parent of primary residence. Originally, the parties agreed that the husband’s only child support obligation would be his payment of the property tax and homeowner’s insurance associated with the former marital home.
In 2005, the parties modified the husband’s child support obligation using the wife’s yearly income of $43,240 and the husband’s yearly income of $71,011. Under the New Jersey Child Support Guidelines, child support was calculated at $215.00 per week for two (2) children.
In 2007, the parties’ older child entered college in West Virginia. The husband made an application to modify his child support obligation, arguing that his obligation should be reduced because the child no longer resided in the wife’s home. The trial judge granted the husband’s request and recalculated the child support amount using the following formula: the judge first calculated the support for two (2), then one (1) child under the Child Support Guidelines. Taking the difference in these sums, the judge determined 38% of the difference, and 25% of the calculated remainder for the child living away at college. This calculation resulted in child support being reduced to $170.00 per week for two (2) children.
In 2009, the younger child began attending college in Kentucky. In 2011, the husband made another application for a reduction in his child support obligation, arguing his income had fallen to $50,000 per year and because the younger child was away “at school…in excess of 85% of the year.” The wife opposed the husband’s request for a reduction and filed a cross-motion seeking an increase in his weekly obligation.
A different trial judge denied the husband’s request to reduce his weekly support obligation based on the formula used in the prior application. However, using the parties’ current incomes, the judge recalculated child support pursuant to the Child Support Guidelines at $159.00 per week for two (2) children.
The husband appealed the trial judge’s order, arguing that she erred when she declined to apply the formula used by the original judge in 2007, which the husband argued was the “law of the case.” The Appellate Division reversed and remanded back to the trial court, but rejected the husband’s argument that the trial judge erred by not utilizing the earlier formula. The Appellate Division held that a court is never irrevocably bound by its prior interlocutory ruling and that it has the discretion to change its prior rulings in the interest of justice. Furthermore, the Court held that the personal facts and circumstances faced by each child who attends college, as well as the financial circumstances of the child’s parents, reflect fluid circumstances “obviating the rote application of a static formula.” The Court therefore did not find any error in the trial judge’s decision not to apply the formula used in the past.
With regard to the actual request for modification, the Appellate Division held that the husband’s change in income, as well as the fact that the children were living away at college, demonstrated a significant change of circumstances necessitating a review of an obligor’s child support obligation. The Court, however, held that the trial judge’s decision to apply the Guidelines was incorrect. Citing Appendix IX-A to R. 5:6A, the Court reiterated that the Guidelines are not applicable when determining the parental obligation for child support of unemancipated college students living away from home. In these cases, child support is to be set “in light of all the financial circumstances of the parties and the children,” under the factors enumerated in N.J.S.A. 2A:34-23a.
The Appellate Division also addressed the husband’s argument that his child support obligation must be reduced now that the children reside on campus. The Court rejected the husband’s argument, holding that he failed to provide any evidence showing that either child’s needs have lessened since attending college. Although child support needs lessen in certain areas such as room and board, which falls within college costs, the Court held that other necessary expenses may increase when a child goes to college, such as transportation, furniture, clothing, luggage, supplies, toiletries, and the like. The Court held that this list is not exhaustive, but demonstrates the costs associated with supporting a child attending college and living away from home, and reinforces the inapplicability of a support award based strictly on the Guidelines. The Court also held that the trial judge must consider and determine the child’s obligation to pay certain expenses considering that many students share the financial burden of meeting expenses.
The Appellate Division also suggested that there is a close relationship between college cost and support in that the higher the child support the less money remains available to contribute to college expenses. The Court indicated that it may be more appropriate for a parent to provide direct payments to the student for some of his or her support needs rather than to the other parent.
On remand, the Court instructed the trial judge to calculate child support based on the factors enumerated in N.J.S.A. 2A:34-23a and to determine the children’s individual needs in order to “assess the income, assets, debts, earning ability, age, and health of each child and each parent to reach an appropriate level of support.”
Observation: For years family law attorneys have operated on the assumption that if a child leaves home to go to college – child support must be reduced. For once and for all, this case puts that fallacy to rest. Leaving home to live at college is a change of circumstances, but depending upon the facts of the case, child support might be higher or lower as a result thereof.
The formula that the original trial judge employed in 2007 when recalculating the husband’s child support obligation effectively presumed that there was a lower amount of variable and controlled costs when the child was away at college. The Appellate Division did not address that formula other than to make it clear that it was not bound by it as the law of the case. However, the Appellate Division found that there are many expenses of a college student that are not accounted for in the Child Support Guidelines. This would suggest that any well meaning application of the Guidelines for children in college living away from home is defective.
Family Law 101: The Child Support Guidelines are not applicable to calculate child support for a child residing away from home at college. N.J. Court Rules, Appendix IX-A at 2513-14 (2012). The Guidelines do apply for college students who live at home and commute to school.
There are two (2) hidden nuggets in this case. First, the opinion lends support to an obligor making his child support payments directly to an unemancipated child over 18 living away at college (rather than paying child support to the custodial parent). I know of no prior authority for this, notwithstanding the fact that it frequently is requested by payor clients in exactly this type of fact pattern. Second, the case makes reference to a nexus between contribution to college and child support. The clear meaning of this is that especially in cases where college is not pre-funded (via 529 accounts or UGMA accounts), something may have to give. As it is clear that the Court does not intend to saddle parents with debt, in cases of limited financial circumstances a party’s contribution to child support may reduce that party’s obligation to pay for college. Practice tip: do not concede a party’s contribution to college at the time of the divorce, especially when college is several years away.
Sauro v. Sauro, In the Matter of Budd Larner, 425 N.J. Super. 555
(App. Div. 2012)
Issue: Can an attorney’s charging lien be effectively nullified by the court in order to fund a trust account for the college education of the children?
Holding: Yes. Under the court’s parens patriae responsibility, the court has the discretion to fund a college education trust with marital funds notwithstanding the prior existence of an attorney charging lien. The lien created only attaches to funds available to the parties at the time of final disposition.
Discussion: The parties were married in 1986 and filed for divorce in 2003. They had three (3) children as a result of the marriage. During the divorce proceedings, the parties aggressively litigated all of the issues relating to the dissolution of their marriage. As a result of the litigation, the parties incurred substantial legal fees that led to a financial meltdown.
Throughout the proceedings, all law firms that were involved sought and obtained leave from the trial court to withdraw as counsel. Further, all firms that withdrew petitioned the trial court to impose an attorney charging lien in the amount of any outstanding legal fees the particular party owed at the time of withdrawal.
In July 2008, the trial court granted Budd Larner’s motion to be relieved as counsel. At that time, withdrawing counsel obtained an attorney charging lien in the amount of $122,664.97 that would attach to plaintiff’s equitable distribution award.
A plenary hearing was held in October 2009 to address the attorney liens and children’s college education costs. After six (6) years of litigating, both parties were without legal representation when the Judgment of Divorce was entered in December 2009. From the remaining marital assets, the court designated $200,000.00 toward a trust account for the children’s education. This effectively nullified the Budd Larner charging lien because there were limited funds remaining in the marital estate. Budd Larner appealed arguing that the trial court improperly diminished the value of the marital assets to which its attorney charging lien attached.
The Appellate Division affirmed the trial court, holding that the trial judge’s decisions were within the court’s authority when the court designated an education trust for children’s college expenses. According to N.J.S.A. 2A:34-23, the Family Part judge has the “statutory authority to enter orders providing for the ‘care, custody, education and maintenance of the children,’ and ensure funds will be available to cover the cost for these concerns.” The court’s authority is not limited to “the creation of trusts or other security devices, to assure payment of reasonably foreseeable medical and educational expenses.” Id. Broad discretionary authority to equitably distribute marital property also lies with the courts.
The Appellate Division stated that the evidence supported the creation of a trust because the financial circumstances of the family required special protection for future college expenses. The Court noted that the trial court was within the Family Part’s parens patriae obligation – to prevent harm to the children. Prioritizing the children’s education over a right of counsel to enforce an attorney charging lien was well within the court’s parens patriae authority.
The Appellate Division reasoned that an attorney’s right to recover fees is unrelated to the Family Part’s authority to act in the children’s best interest. A statutory lien is only an inchoate right that vests after a final judgment is entered. The Appellate Division concluded that an attorney charging lien that can be asserted against family’s limited funds, cannot undermine the court’s parens patriae responsibility.
Observation: This case should be read by every family law attorney, every managing partner of a family law firm, and every client going through a high conflict divorce. Because the parties refused to modify their lifestyle or their strategies in the divorce case, they literally consumed all available marital assets. Now that is their right. But attorneys cannot be idle eyewitnesses (let alone accomplices) to this devastation. Here, the parties fought each other with unrestrained aggression (according to the court they were unwilling to act in the best interests of their own children). When attorneys see this conduct and are unable to discourage their own clients from such reckless behavior, if the attorney elects to remain in the case then, at a minimum he must insist on payment when service is rendered. This might give parties pause to rethink the sanity of their aggression.
While at first glance you may wish to blame the judge for this unpleasant outcome, remember the trial court let every attorney out of the case and granted each attorney a lien. So the attorneys who elected to stay in the case, even when they were not being paid, should have understood they were running a real risk of never being compensated for their services. We all from time to time stay with a case even when we know we will never be paid – out of principle or professionalism – and that’s our choice. Indeed, we fail to get enough credit for it. But we should never delude ourselves into staying in a case when the parties are acting recklessly, payment has not been made, and there is no clear path to immediate payment.
J.D. v. M.A.D., 429 N.J. Super. 34
(App. Div. 2012)
Issue: Does an abusive party’s history as primary caretaker of the children rebut the presumption established by the Prevention of Domestic Violence Act, which states that the best interests of the child are served by an award of custody to the non-abusive parent?
Holding: No. The finding that the abusive parent was the primary caretaker of the children, standing alone, is insufficient to rebut the presumption that the child’s best interests are served by an award of custody to the non-abusive parent.
Discussion: The parties were married for nine (9) years and had two (2) children at the time the events which triggered this matter occurred. In 2005, the husband/defendant was diagnosed with a serious illness. The wife/plaintiff, who had previously been at home with the children, went back to work in order to help support the family. By 2010, the husband had largely recovered from his illness and although he was unable to work, he was able to care for the children, oversee their activities, and coach their athletic teams.
In 2011, the husband learned that his wife was having an extramarital affair. He confronted her about the affair in the presence of the parties’ minor children. The husband then pushed his wife against a wall in their bedroom and put his hands around her throat. The parties’ eight-year-old son, upon witnessing his father choking his mother, called the police. Upon the arrival of the police, they persuaded the husband to leave the residence to cool off. The wife then left the home with the children for a family birthday party. She was called back home several hours later by the husband’s mother. Upon her return, she found the bedroom in complete disarray. The husband had taken her clothes, pictures, and jewelry and burned them in the backyard. The husband, upon his actions being discovered, went to a crisis center for evaluation, from which he was released the following day. He returned to the marital home a few days later.
Upon the husband’s return to the marital home, the parties engaged in a conversation over their relationship. The wife indicated that she wanted to work out their problems. The husband indicated that he needed space. They signed an agreement whereby the wife agreed to leave the home and have the children stay with the husband as the primary custodial parent. The agreement also outlined a parenting time arrangement for the wife. The wife remained away from the home for at least one (1) month before returning to live with the husband and the children as they made attempts to reconcile.
Several months later, the parties engaged in a verbal dispute while driving in the car with both children. The husband grabbed the wife’s hair, squeezed and held her hand, and lifted her chin and pushed it towards the window. Later that month, the husband became even more violent, pushing the wife with such force that she fell backwards. As she raised her arms to cover her face, the husband punched her three (3) times with a closed fist, striking her in the upper arm. As she tried to get up, he pushed her back down.
Approximately one (1) month after this incident, the parties were involved in yet another incident. The husband returned home after hours of drinking while the wife was asleep with their daughter next to her. The husband roughly awoke her and ordered the wife to sleep on the couch. As the wife got up to go downstairs, the husband pushed her into the closet and put his hands around her throat. He continued to call her names and woke up their son who asked why daddy was yelling at her. Two (2) weeks later, after the wife had settled in on the couch for the night, the husband entered the room, told her she did not deserve to be comfortable, and ordered her to the loveseat. Once she moved to the loveseat, the husband told her he wanted her to leave. He pulled her up by the shoulder, grabbed her hair, and pushed her, causing her to stumble. When she tried to reach for the telephone to call the police, he grabbed the phone from her and pulled it off the wall. The disturbance roused the parties’ daughter, who came to stand nearby. After this incident, the wife obtained a temporary restraining order.
Following the Final Restraining Order hearing, the trial judge found that the wife had proven by a preponderance of the evidence that the husband had committed an offensive touching, that he acted with a purpose to harass, and that a restraining order was necessary in order to prevent future acts of domestic violence. The trial judge then entertained argument as to who should have possession of the marital home and temporary custody of the parties’ children. After hearing argument, the trial judge awarded temporary custody to the husband. The court reasoned that the husband had become the children’s primary caretaker. The court further found that the statutory presumption of N.J.S.A. 2C:25-29b(11), that the best interests of the child are served by awarding custody to the non-abusive parent, had been rebutted. The court reasoned that the husband had taken on a central role in the children’s lives and that the husband’s anger issues stemmed from one issue only – the wife’s affair. Accordingly, the trial judge held that it would be in the best interests of the children to continue to reside with the person who has been primarily raising them, and that because the children need a place to live, the husband would have possession of the marital home.
The wife appealed the trial judge’s decision, arguing that the court erred in granting the husband exclusive possession of the home and temporary custody of the children. The Appellate Division agreed with the wife and reversed. The Appellate Division held that the facts, as found by the trial judge, do not overcome the presumption in N.J.S.A. 2C:25-29b(11). The Court noted that the Legislature’s intent in enacting the Prevention of Domestic Violence Act was to provide the maximum protection from abuse that the law can provide. In enacting the statute, the Legislature also found that there is a positive correlation between spousal abuse and child abuse, and that children, even if not themselves physically abused, suffer long-lasting effects from exposure to domestic violence.
Accordingly, the Appellate Division held the trial court’s finding that the husband had become the children’s primary caretaker was not enough to rebut the presumption of temporary custody to the non-abuser. The Appellate Division further held that the temporary custody award was further inappropriate in light of the fact that the trial judge found a predicate act and three (3) separate prior acts of domestic violence against the wife, all of which involved a physical touching, and many of which occurred in front of the children. The Appellate Division held that “the judge erred and misperceived the nature and effect of domestic violence in a family when he apparently determined that the level of anger defendant harbored for his wife was isolated and thus did not affect the couple’s children.” All of the facts as found by the trial judge make clear that the presumption was not rebutted and that the award of custody to the husband was error.
Furthermore, the Appellate Division found that the trial judge erred by granting exclusive possession of the marital residence to the abuser under circumstances in which there was no impediment to the wife remaining in the home. The Appellate Division held that “there is no statutory authorization for such relief” and accordingly reversed and remanded the matter, instructing the trial court to immediately reconsider the existing temporary custody arrangements and the provision granting the husband exclusive possession of the marital home.
Observation: The fact that you represent the primary caretaker of a child does not rebut the presumption that temporary custody will be awarded to the victim if your client is found by a preponderance of the evidence to have committed an act of domestic violence. In contested custody matters, under no circumstances should you risk the entry of a domestic violence FRO against your client. Practitioners should consider civil restraints or an alternative resolution short of an admission of domestic violence. Under N.J.S.A. 9:2-4, in making an award of custody, the Court is to consider fourteen (14) factors of which the history of domestic violence is only one. In a domestic violence hearing, however, a finding of domestic violence takes on much greater importance in the custody calculus.
Here, the victim was also facing the prospect of being restrained from her own home because the defendant committed an act of domestic violence and because the defendant was the primary caretaker of the children. This result could not be tolerated by the Appellate Division because it sends the message that victims who seek protection under our domestic violence laws could be punished by the Act.
The Appellate Division did not address whether the Act would prevent a “nesting” arrangement which has recently gained popularity in custody cases (i.e. the abuser stays in the home from 6:30 a.m. to 4:30 p.m. to care for the children – the victim has the home and the children from 4:30 p.m. to 6:30 a.m. when she is not working). The Court agreed however that based upon the domestic violence in this case such an arrangement would be unwise.
F.H.U v. A.C.U., 427 N.J. Super. 354
(App. Div.) certif. den. 212 N.J. 198 (2012)
Issue: Does the fact that a child has been determined to be well-settled in her new residence in this country preclude the child’s return to her former habitual place of residence under the Hague Convention?
Holding: No. A trial court may order the return of a child to her former home country when a determination is made that the child has been wrongfully removed, even if the removal occurred more than one (1) year prior and the child is well-settled in her new residence.
Discussion: The parties were married in 1997 and lived together until June 20, 2008. They had one (1) child as a result of the marriage, M.U. At the time of the hearing, Mother resided in Istanbul, Turkey with her parents, while Father and M.U. resided in New Jersey. M.U. was born in the United States in 2002, while her parents were vacationing. The parties admitted that the timing of her birth was arranged so that the child would be born in this country. Several weeks after M.U.’s birth, the family returned to Turkey. M.U. speaks Turkish and was enrolled in preschool. In 2008, the parties experienced marital difficulties and temporarily separated. However, the parties reconciled and lived together for another several months. On June 20, 2008, Father told Mother that he would take Mother and M.U. to Italy to visit some friends. He left the home on the morning of June 20, 2008 with M.U. and told Mother that they were going to the Italian embassy to arrange for a travel visa and that they would be back in several hours. Father did not return home with M.U. that day and did not answer Mother’s numerous telephone calls. He called her three (3) days later to tell her that he and M.U. were in the United States and intended to bring Mother there so that she could care for their daughter.
Mother began a petition process pursuant to the Hague Convention and began a custody case in Turkey. In October 2008, Mother received an interim order granting her custody of M.U. M.U., however, remained in the United States for another two-and-a-half years prior to a hearing before the trial court. During this time, Mother communicated with her daughter via telephone and internet. Mother could not come to the United States prior to the hearing because she could not get a visa. Mother also testified that Father traveled to the United States several times between 2005 and 2008 for what he told her was company business. However, she now believed that the frequent visits were to maintain his green card for six-month periods.
Father testified that Mother knew of his plan to first take M.U. to the United States and then bring Mother over. He further testified that Mother did not object to his plan. He testified he called Mother as soon as they landed safely in New Jersey. At the time of the hearing, he and M.U. resided in a two-bedroom apartment in Clifton. M.U. had her own room, toys, and clothes. She first attended daycare and then entered a charter school, where she excelled. The school’s principal reported that M.U. was a happy and well-adjusted child. Father also testified that M.U. would face a “grave risk” of psychological harm if she returned to Turkey. He testified that she would be forcibly taken from her environment here and that it was her preference to live in the United States.
In April 2011, the trial judge issued an order finding M.U. to be a habitual resident of Turkey, wrongfully removed by Father. Temporary custody of M.U. was granted to Mother to take her back to Turkey for a determination of permanent custody. The trial judge did not deem it necessary to determine whether the child was “well-settled” in the United States, as it relates to Article 12 of the Hague Convention, because it found that M.U.’s removal was wrongful. Furthermore, it held that Mother had done all she could to comply with the one-year requirement set forth by Article 12, which requires a party to bring an action within one (1) year of removal. The court held that this requirement was tolled based on bureaucratic delays outside of the Mother’s control.
Father appealed on an emergent basis seeking a stay of the trial court’s order. The Appellate Division granted the stay and remanded to the trial court for a supplemental decision to determine whether the child was well-settled in the United States as that term is defined in Article 12 of the Hague Convention. The trial judge issued a supplemental decision, finding that M.U. was in fact well-settled.
Father appealed, arguing that the one-year provision of the Convention should not have been tolled. He further argued that the judge erred in finding that the return of the child would not present a grave risk to her. He also argued that the trial judge erred by not conducting an in camera interview of the child as part of its analysis. Mother filed a cross-appeal challenging the court’s finding that M.U. was well-settled.
The Appellate Division undertook a detailed analysis of the Hague Convention, stating that it is intended to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return. Article 12 of the Convention provides that “Where a child has been wrongfully removed or retained . . . and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.” Article 12 further states that even if one (1) year has expired, the child will be ordered returned unless it is demonstrated that the child is now settled in its new environment.
Accordingly, in order to proceed pursuant to the Convention, a petitioner must first establish a prima facie case for wrongful removal. Specifically, it must be shown that (1) the child’s habitual residence was in the country from which the child was removed; (2) the removal breached the custodial rights of the petitioner; and (3) at the time of removal, the petitioner was exercising his or her custodial rights. Upon such a showing, a respondent may argue the following defenses: (1) the petitioner consented to the removal; (2) a return to the child’s habitual residence would subject the child to a grave risk of physical or psychological harm; and/or (3) the child does not wish to be returned. Additionally, if the petition is commenced more than one (1) year after the removal, the respondent may present evidence that the child is well-settled in his or her new environment.
The Appellate Division held that a showing by the respondent that the petition was filed more than one (1) year after the removal and that the child was well-settled does not automatically end the inquiry. The reviewing court still has the power to order that the child be returned to the habitual residence.
In this case, the Appellate Division held that the trial judge erred by finding that the bureaucratic delays encountered by Mother were sufficient to equitably toll the one-year term in Article 12. This provision is tolled only in situations where the respondent actively concealed his and the child’s location. The Appellate Division held that the record did not demonstrate that Father concealed their location and that Article 12 could not be equitably tolled when the acts of third parties result in the delay of the action being brought within one (1) year. The Court held, however, that it does not follow from this holding that M.U. should not be ordered returned to Turkey.
The Appellate Division next examined the trial judge’s determination that the child was well-settled in New Jersey. The Court held that finding a child to be well-settled does not render a court powerless to order the child returned. Although the trial judge recognized the many positive aspects of M.U.’s life in New Jersey, the Appellate Division agreed with the trial judge that the appropriate analysis in a Hague Convention case is not the best interests of the child, but whether the child was wrongfully removed. The Appellate Division held that “by ordering that M.U. be returned based on the circumstances of her removal, and with appreciation of her time, experiences, and relationships during her time here, the trial court properly exercised its discretion to make factual findings within its realm of expertise while upholding the Convention’s prime purpose.”
The Appellate Division also analyzed Father’s defenses to Mother’s contention that M.U. was wrongfully removed. The Court rejected the father’s defenses, finding that in light of Mother’s testimony regarding her initial reaction to the abduction, her attempts to locate Father and M.U., and her compelling testimony throughout the hearing, it had no cause to find an abuse of discretion in the trial court’s ruling that Father failed to meet his burden to show agreement for removal by the Mother. He also failed to meet his burden to prove that M.U. faced a grave risk of harm if she were returned to Turkey. He did not present any evidence, other than his own opinion, that M.U. would be harmed by returning to live with her mother in Turkey. Finally, the Court also held that the trial judge did not err in choosing not to interview the child, finding that the decision as to whether to conduct an in camera interview is in the trial judge’s discretion.
As a result of its detailed analysis, the Appellate Division affirmed the trial court’s decision to return M.U. to Turkey with her mother, finding that she had been wrongfully removed. The matter was remanded to the trial court to make arrangements for the expeditious transfer of physical custody of M.U.
Observation: The Hague Convention was ratified by the United States on July 1, 1988 and is implemented by the International Child Abduction Remedies Act 42 USC • 1160, et. seq. (1988), also known as ICARA. The text of the Convention is published at 51 Fed. Reg. 10498 (1986). A copy of the Convention is also attached to the opinion in Duquette v. Tahan, 252 N.J. Super. 554, 563-579 (App. Div. 1991).
The Convention is not a custody statute. It is a jurisdiction statute and law of international comity which provides that the country where a child was “habitually resident” is to be the decision maker in a custody dispute. Therefore, where there is wrongful removal of a child, the remedy under the Convention is for the child to be returned and to have the country where the child was “habitually resident” determine the issue of custody.
Ducey v. Ducey, 424 N.J. Super. 68 (App. Div. 2012)
Issue: After a contested trial, can a Family Part judge enter a Judgment of Divorce (JOD) accompanied only with a statement “the underlying opinion will be sent shortly”?
Holding: No. When a trial judge enters a JOD she must decide all issues accompanied by the underlying factual findings and reasons for the decision.
Discussion: This case involves a complex matrimonial matter where both parties appealed various provisions of an amended final JOD. The parties were married on June 19, 1993 and separated in May 2006. The parties have four (4) minor children. Plaintiff was a full-time homemaker and defendant was an orthopedic surgeon.
After a fourteen-day trial, the Family Part judge, who presided over the trial, issued a final JOD, seven (7) months later, that included a letter advising the parties that an “underlying opinion will be sent shortly.” The final JOD included provisions regarding custody, parenting time, limited duration alimony, child support, and equitable distribution of the assets.
Three (3) months after the JOD was issued, the trial judge rendered a thirty-two page written opinion, addressing already finalized issues which did not support the previously reached conclusions. For example, the amount of child support, the amount and duration of alimony, and the value of defendant’s medical practice substantially increased. The opinion did not mention the initial JOD or even explain why the court deviated from the JOD. Both parties appealed various financial provisions of the amended JOD.
The Appellate Division did not address the parties’ arguments on the merits of the issues but clearly rejected the trial judge’s procedure, and reversed and remanded the matter for a new trial before a new Family Part judge. The Appellate Division found that the substantive financial provisions diverged significantly from those in the initial JOD and the trial judge did not give an explanation for the wholesale alteration. The Court focused on the trial judge’s deviations from its fact finding obligation, under R. 1:7-4(a), since the opinion was issued more than three (3) months after the JOD was entered. The Appellate Division vacated the financial provisions in the amended JOD because there was no explanation for the divergence.
In determining that the trial judge abused her discretion, the Court reiterated that judges in matrimonial matters must enter a final JOD with an accompanied opinion “underlying factual findings and reasoning.” The Appellate Division reminded trial courts that submitting a “mere statement that ‘[t]he underlying opinion will be sent shortly’” perverts the court’s primary obligation as a fact finder. The matter was referred to the Conference of Family Presiding Judges for review and implementation of any policy provisions or training.
Observation: This case puts all trial court judges on notice that when deciding a matter at final hearing, the judge should decide all issues before it and provide its underlying findings of facts and reasons for its decision. The pressure upon the judiciary to complete trials and to issue timely decisions is well known. It is also well known that the courts simply do not have enough judges available to handle the influx of matrimonial cases. However, the Appellate Division was not critical of the fact that it took ten (10) months to decide the case. What it rejected was the mere submission of a Final Judgment (perhaps to meet some AOC reporting time line) and leave for a later date the reasoning as to how the court arrived at its decision. Here where the trial court’s findings and decisions were in conflict with matters decided in the Final JOD, the trial court’s actions became indefensible.
The trial court’s procedure in this matter borders on entering a bifurcated divorce (i.e. where a divorce is entered before the Court decides the financial and other substantive issues in the case). That practice is specifically prohibited by AOC directive.