The Ten Most Important Family Law Cases Reported in 2023

By: John P. Paone, Jr.

2023 was another lean year for reported family law opinions. Aside from Cardali, where the New Jersey Supreme Court has now defined the standard for establishing a prima facie case of cohabitation in alimony cases, most reported opinions were again heavily weighted in favor of appeals from domestic violence dispositions. This makes sense as in many vicinages, due in large part to the shortage of judges, the only matters being tried to conclusion in 2023 were domestic violence cases.

Despite the dearth of reported cases, 2023 had its share of cases that family law practitioners will find relevant to their practice. In addition to Cardali, the Top 10 includes two federal cases and a couple of non-family decisions which have direct bearing upon issues commonly raised in family law actions. The following are my selections of the 10 most important family law decisions reported for 2023.

Cardali v. Cardali, 255 N.J. 85 (2023)

Issue: Does a prima facie showing of cohabitation require that a movant present evidence as to all factors set forth in N.J.S.A. 2A:34-23(n) as a prerequisite in order for a trial court to grant discovery and order a plenary hearing?

Holding: No. A movant need not submit evidence of all the statutory factors in order to establish a prima facie case for cohabitation. If the movant’s certification addresses some of the relevant factors and it is supported by competent evidence, and that evidence would warrant a finding of cohabitation if unrebutted, the trial court should find that the movant has presented prima facie evidence of cohabitation and should grant limited discovery tailored to the issues in the motion, subject to any protective order necessary to safeguard confidential information.

Discussion: The plaintiff (“Wife”) and defendant (“Husband”) were married for approximately 18 years in which they had two children who are emancipated. At the time of their divorce in 2006, the parties entered into a Property Settlement Agreement (“PSA”) which provided in relevant part that the Husband pay permanent alimony to the Wife at the rate of $5,417.00 per month. The PSA also stated that the Husband’s alimony obligation would terminate upon “remarriage or cohabitation (as defined by [New Jersey] Law) or [either party’s] death, whichever occurs first.”

Notably, the PSA was executed by the parties prior to the New Jersey Legislature amending the alimony statute in September 2014 which promulgated seven factors regarding cohabitation as set forth in N.J.S.A. 2A:34-23(n). These factors are analogous to those enunciated in Konzelman v. Konzelman, 158 N.J. 185 (1999) which was decided prior to the alimony amendments.

On December 1, 2020, the Husband filed a motion to terminate his alimony obligation based on the Wife’s alleged cohabitation with her paramour. The Husband proffered evidence as to some of the cohabitation factors outlined in N.J.S.A. 2A:34-23(n) but provided no proofs to demonstrate any financial relationship or nexus between the Wife and her paramour.

The Wife opposed the Husband’s Motion to terminate alimony in which she certified that she and her paramour had an on-again, off-again dating relationship, but she was not cohabiting with him. She further certified that her paramour would typically spend no more than one or two overnights per week at her residence usually occurring on weekends. The Wife maintained that there was no sharing of finances between her and her paramour, there were no shared chores and expenses, joint accounts, and they each had their own home.

On January 8, 2021, the trial court denied the Husband’s motion to terminate alimony. In denying the Husband’s relief to terminate alimony, the trial judge noted that while the evidence proffered by the Husband revealed that the paramour was the Wife’s long-term romantic partner, it did not definitively establish that the relationship was marriage-like or that they mutually supported each other financially or otherwise. The trial court based its determination on the factors outlined in N.J.S.A. 2A:34-23(n) even though its enactment was prior to the entry of the PSA.

The Husband appealed the Order by the trial court denying his request to terminate alimony. Although the Husband agreed with the trial court’s application of N.J.S.A. 2A:34-23(n) in this case, he contended that the trial court improperly imposed on him a burden to introduce evidence of all cohabitation factors set forth in N.J.S.A. 2A:34-23(n) without the benefit of discovery in order to prove that a prima facie case of cohabitation had been met.

Following its review of the record, the Appellate Division acknowledged that N.J.S.A. 2A:34-23(n) only applies prospectively. However, neither party challenged the trial court’s application of the statute and the statute essentially adopted the definition of cohabitation in Konzelman.

As for the substantive merits of the Husband’s appeal, the Appellate Division affirmed the trial court’s decision in its entirety. The Appellate Division observed that the proofs which were submitted by the Husband in this matter were far less significant than the evidence that was put forth by the moving party in Temple v. Temple, 468 N.J. Super. 364 (App. Div. 2021). In Temple, the supported former spouse was in a romantic relationship with a partner for approximately 14 years in which were countless social media posts confirming that the couple were together for important family events. Many of the social media posts also revealed the partner referring to the former spouse as his “wife”. In addition, the record in Temple established that the former spouse gave up her New York City apartment to live closer to the partner and was living full-time at her partner’s New Jersey home where she had undertaken household chores such as retrieving and opening mail and purchasing groceries.

The Appellate Division explained that unlike in Temple, in this instant matter there was no evidence of any financial entanglement between the Wife and her paramour nor did the paramour make any enforceable promise of support to the Wife. The Appellate Division concurred with the trial court that the surveillance evidence was indicative of a serious committed dating relationship, but was insufficient to establish a prima facie case of cohabitation. The Appellate Division noted that there was no justification to invade the Wife’s privacy as to her personal matters and that the Husband was thereby not entitled to any discovery.

The New Jersey Supreme Court granted the Husband’s petition for certification. Their review of the record in this matter was limited to two important questions: (1) whether evidence of intertwined finances and shared living expenses was required to establish a prima facie case for cohabitation; and (2) whether a payee spouse who is suspected of cohabiting has privacy rights sufficient to avoid discovery where the payee makes their relationship widely known to the public.

With regard to the first question, amicus curiae the New Jersey State Bar Association argued that a movant makes a prima facie showing for cohabitation if the evidence presented would support a factfinder’s conclusion that a couple is in a mutually supportive, intimate personal relationship in which they have undertaken duties and privileges commonly associated with marriage or civil union. Furthermore, an amicus brief was filed by the New Jersey Chapter of the American Academy of Matrimonial Lawyers asserting that a movant need not provide proof as to all factors identified in N.J.S.A. 2A:34-23(n) in order to sustain a prima facie case for cohabitation.

Upon review of the salient facts and arguments, the Supreme Court reversed the Appellate Division’s judgment and remanded the case back to the trial court for further proceedings. As a starting point, the Court observed that an application to terminate alimony based on cohabitation is predicated on changed circumstances as defined in Lepis v. Lepis, 83 N.J. 139 (1980). The Court made clear that the standard of cohabitation was defined in Konzelman which recognized that cohabitation can be a valid basis for discontinuing alimony, without regard to the economic consequences of that relationship. This finding is not based on a mere romantic, causal or social relationship but is premised on a cohabiting relationship steeped in stability, permanency, and mutual interdependence.

The Court found that the appeal was governed by the Konzelman standard which was the controlling legal authority since the parties’ PSA was executed before the 2014 amendments to the alimony statute had taken effect and the law was not retroactive. Notwithstanding, the Court elaborated that the factors identified in Konzelman mirror those in N.J.S.A. 2A:34-23 which was considered by the trial court including but not limited to the following: (1) intertwined finances such as joint bank accounts and other joint holdings and liabilities; (2) sharing or joint responsibility for living expenses; (3) recognition of the relationship in the couple’s social and family circle; (4) living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually support intimate personal relationship; and (5) sharing household chores.

The Court expressed that a prima facie showing for cohabitation is different than the proofs that are the basis for a final adjudication on the merits. It is a threshold showing to avoid a fishing expedition or unnecessary invasion of privacy in pursuit of a baseless cohabitation claim. The Court added that the movant’s burden should not be an onerous one as the evidence if unrebutted would sustain a judgment in favor of the movant.

Whether applying the factors identified under Konzelman or those enumerated in N.J.S.A. 2A:34-23(n), the Court declared that there is nothing which requires the movant to present evidence as to all relevant factors in order to set forth a prima facie case for cohabitation. Such a requirement would impose an unfair burden at the preliminary stage of the case in addition to the fact that a movant is unlikely to have access to financial records or other proofs which touch upon the financial criteria in evaluating a cohabitation application. The Court instructed that if the trial court deems that sufficient evidence has been presented which rises to the level of a prima facie case for cohabitation, an order should thereafter be entered granting narrowly tailored discovery regarding the cohabitation factors which govern the case. The Court also opined that there should be sufficient steps taken the by the trial court to safeguard the privacy of the spouse who may be subject to an intrusion of their finances and other sensitive information in the course of discovery, including but not limited to entering a protective order, but that privacy concerns do not obviate the need for limited and narrowly tailored discovery in cohabitation cases.

The Supreme Court also pronounced that after completion of limited discovery, the parties should file supplemental certifications in support of and in opposition to the motion. If any material facts remain in dispute after this stage, a plenary hearing should be scheduled to address these issues and to determine whether to terminate or suspend alimony.
It was concluded by the Supreme Court that the trial court did not properly exercise its discretion when it denied the Husband’s motion without any discovery. On remand, the trial court must order the Wife to provide limited discovery and to subsequently conduct a plenary hearing if after the submission of supplemental certifications there are still material facts in dispute as to whether the Wife is cohabiting.

Observation: The takeaways from Cardali are clear:

1. The movant does not need to present evidence as to all of the cohabitation factors in order to establish a prima facie showing of cohabitation. It’s enough that a movant present competent evidence as to at least some of the factors which if unrebutted would sustain movant’s burden of proof as to cohabitation. What does “some” of the factors mean? In Cardali, the movant presented evidence of “living together”, “shared household chores”, “recognition of the relationship in the couple’s social and family circle”, and that was deemed to be sufficient to make a prima facie case. While the movant still has the burden at the preliminary stage, it is not onerous as the movant is entitled to a presumption of the truth and the benefit of all reasonable inferences from the evidence he has marshaled. This avoids the movant’s need to go prying for financial information that is not in the public realm.
2. The Court found that the standard for proving cohabitation whether under N.J.S.A. 2A:34-23(n) or under Konzelman for cases resolved prior to September 2014, are virtually identical. And so the issue of which law applies has become irrelevant.
3. The Court proposes amendments to the Court Rules regarding discovery and uniform Interrogatories in order to streamline discovery and safeguard the privacy of the spouse receiving alimony, when a prima facie burden is satisfied. This directive to streamline discovery is similar to that which the Court prescribed in the grandparent visitation case of Major v. Maguire, 224 N.J. 1 (2016) which, not coincidentally, was also authored by Justice Patterson.
4. Finally, establishment of a prima facie case does not automatically entitle the movant to a plenary hearing. Rather, after the exchange of discovery, the parties are to file supplemental certifications and then only if material facts remain in dispute must a Court conduct a plenary hearing to determine the motion to terminate or suspend alimony. The Court declined to adopt the NJSBA position that the burden should shift to the recipient of alimony upon the establishment of a prima facie case. Rather, the burden remains with the movant at all stages of the proceeding.

United States v. Rahimi, 59 F.4th 163 (5th Cir. 2023)

Issue: Does federal statute 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms by individuals who are subject to a domestic violence restraining order, unfairly infringe upon the defendant’s fundamental rights afforded by the Second Amendment of the United States Constitution and is therefore unconstitutional?

Holding: Yes. The federal statute at issue falls outside of the class of firearm regulations contemplated by the Second Amendment. There is a presumption that the Second Amendment right belongs to all Americans who are law-abiding, responsible citizens. In this matter, the defendant is not a convicted felon nor is he subject to another longstanding prohibition as to the possession of firearms. Accordingly, the federal government is unable to demonstrate that its ban on the possession of firearms by domestic violence offenders is part of a historical tradition of regulations that strip certain persons of their Second Amendment rights.

Discussion: The defendant, Zackey Rahimi (hereinafter “Rahimi”), was involved in five shootings near Arlington, Texas between December 2020 and January 2021. The Arlington Police Department identified Rahimi as a suspect in the shootings and obtained a warrant to search his home. During the execution of the search warrant, the police found a rifle and a pistol. In the course of the police investigation, Rahimi admitted to law enforcement that he was subject to a civil restraining order entered on February 5, 2020 as a result of allegedly assaulting his ex-girlfriend.

Rahimi was subsequently indicted by a federal grand jury for possessing a firearm while under a domestic violence restraining order in violation of 18 U.S.C. § 922(g)(8). This statute expressly provides as follows:

“It shall be unlawful for any person who is subject to a court order that: (A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; (B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (C)(i) include a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonable be expect to cause bodily injury…to…possess in or affecting commerce, any firearm or ammunition…”

Rahimi filed an application to have the indictment dismissed on the basis that 18 U.S.C. § 922(g)(8) was unconstitutional. Although Rahimi acknowledged that this argument was initially foreclosed based on a prior decision by the 5th Circuit Court of Appeals and a prior panel of the Court agreed, the opinion of the prior panel was withdrawn. The appeal was reopened as a result of the U.S. Supreme Court opinion in New York State Rifle & Pistol Association, Inc. v. Bruen, which overturned a law in New York that prevented law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms. Upon review of the appeal de novo, the Court determined that Bruen overruled the case precedent regarding firearm regulations and that consequently 18 U.S.C. § 922(g)(8) no longer passed constitutional muster.

As part of its rationale in concluding that the statute was unconstitutional, the Court reviewed the decision in D.C. v. Heller and Bruen. In expounding upon the decision in Heller, the Supreme Court in Bruen noted that when a person’s Second Amendment rights are implicated, the government has the burden of affirmatively proving that its law is consistent with a historical tradition of firearms regulation. Notably, the Court observed that Heller and Bruen make clear that the Second Amendment only applies to law-abiding, responsible citizens. The Court interpreted from Heller that the term “law-abiding, responsible citizens” does not apply to those persons who are subject to longstanding prohibitions of possessing firearms based on felony convictions or those who are mentally ill. It also does not apply with respect to laws forbidding the carrying of firearms in sensitive places such as schools or government buildings.

The Court found that Rahimi did not fall into any group which would restrict his ability to carry or possess firearms. While Rahimi was suspected of other criminal conduct, he was not a convicted felon or otherwise subject to a longstanding prohibition on the possession of firearms which would have excluded him from being afforded his constitutional protection under the Second Amendment.

Since the Constitution permits Rahimi to possess firearms, this led the Court to the next part of its analysis as articulated in Bruen, which requires the government to justify its regulation by demonstrating that it is consistent with the nation’s historical traditional of firearm regulation. The Court noted that the government need not identify a “historical twin” which directly models its firearm regulation in question but rather, a well-established and representing historical analogue suffices. Moreover, the lack of any comparable historical regulation would serve as relevant evidence that the challenged regulation is inconsistent with the Second Amendment.

To support that there were historical underpinnings to its firearm regulations, the government offered examples of various English and American laws providing for disarmament of dangerous people, English and American “going armed” laws, and colonial early state surety laws. The Court found the arguments made by the government to be unpersuasive and that the laws which they relied upon were not substantially similar precursors to 18 U.S.C. § 922(g)(8).

The laws from the colonial period disarmed classes of people considered to be dangerous which specifically included those unwilling to take an oath of allegiance, slaves, and Native Americans. Thus, the Court explained the purpose of these laws was likely to target disloyal or unacceptable groups in order to preserve the political order rather than to protect persons from the threat of domestic gun abuse.

As for the “going armed” laws which originated from common law to deter those persons who sought to terrify the King’s subjects, the Court did not find that they were reflective of the nation’s historical tradition of firearm regulation, particularly as to the forfeiture of firearms. Moreover, those laws only disarmed an offender after criminal proceedings and a conviction. The Court added that these laws were aimed at curbing riotous and terroristic behavior which was different than the government’s firearm regulation which would serve to restrict the possession and use of firearms for persons who had no history of violence whatsoever.

The Court also addressed the surety laws from England which required persons to post a surety in order to carry a weapon where there was probable suspicion that some crime was intended or likely to happen. While the Court stated that the surety laws were closer to aligning with the tradition of firearm regulation, the historical surety laws did not prohibit public carry or possession of weapons provided that the offender posted surety.

In the instant matter, there is an absolute deprivation of a person’s fundamental right to possess any firearm upon the entry of a valid protective order. The law is overbroad and its passage cannot be justified based on any historical analogue embedded in the traditions of this nation which places a comparable burden on the right of armed self-defense.

Observation: In New Jersey, most family law practitioners would find it incredible that a person who commits domestic violence would be left with their weapons after the issuance of an FRO. Fortunately, the US Supreme Court accepted certiorari and based on the oral argument in November, most commentators believe the Court will reverse Rahimi and uphold the federal statute prohibiting the possession of firearms by domestic violence abusers. Stay tuned.

It would appear that the 5th Circuit lost its way here by searching for a “historical tradition” of regulation as required by Bruen. Recall that prior to the 1970s, domestic violence was not taken seriously in most jurisdictions. Since that time, Congress has enacted the Violence Against Women Act which clearly sets forth the public policy of the government to protect victims of abuse. It is difficult to see how persons who commit domestic violence can still be considered law abiding citizens eligible for gun ownership merely because they do not have a criminal conviction on their record.

Regardless of what the high court does in Rahimi, the case should send a cautionary note to those seeking to expand the domestic violence statute to include non-criminal acts. Presumably, domestic violence predicated on a non-criminal act would have a higher hurdle in providing for forfeiture of weapons that does not run afoul of the Second Amendment.

J.D. v. A.M.W., 475 N.J. Super. 306 (App. Div. 2023)

Issue: Did the trial judge commit reversible error in finding that a FRO was not warranted in order to protect the plaintiff from future acts of domestic violence (prong 2 of Silver) because there were already adequate safeguards in place in the form of civil restraints to protect the plaintiff?

Holding: Yes. A trial court must evaluate under the second prong of Silver v. Silver whether the defendant is likely to continue his course of abusive behavior, not whether external factors might thwart his attempts. Accordingly, it was improper for the trial judge not to enter a FRO when the predicate act of domestic violence, history of domestic violence, and defendant’s previous violations of civil restraints were clearly established in the record.

Discussion: The plaintiff (hereinafter “Mother”) and the defendant (hereinafter “Father”) were involved in a non-marital romantic relationship in which they had one child in common named M.W. The parties had shared custody of M.W. until December 2015 when M.W. came home from a visit with the Father having a black eye and cut above his eye.

The incident in question which gives rise to the instant matter occurred on August 29, 2021 when both parties were at a soccer field attending their son’s game. It was the Father’s day to have parenting time with M.W. who was 10 years old at the time. Over the course of the day, an argument ensued between the parties after the Mother realized that the Father had removed their son’s sneakers from her stroller. The Father chest-bumped and attempted to grab the Mother. During the incident, the Mother signaled for the child’s paternal grandfather, who was supervising the Father’s parenting time, who helped quell the situation.

Following the aforesaid incident at the soccer field, the Mother ultimately obtained a TRO against the Father. At the FRO hearing, the Mother testified to a history of violence during her relationship with the Father, which dated back to 2009. Specifically, the Mother testified that the Father would aggressively walk into her and that his conduct escalated over time to hitting, shoving, and other acts of physical violence. The Mother further testified as to a series of events at the time that she was pregnant with M.W. and when M.W. was 3 years old in which the Father was physically confrontational towards her. The Mother confirmed during her testimony that she was in fear of the Father during those prior incidents and that she sought a restraining order against the Father now because he became physical with her again recently at the soccer field, and because she was in fear that he would do something worse in the future.

During a lunch break on the second day of the FRO trial, another incident had taken place between the parties at the courthouse. When the Court was back in session, the Mother’s counsel stated on the record that the Father had purposeful contact with the Mother during lunch whereby the Father came within two feet of the Mother. Although the Mother’s counsel asked for a continuance of the FRO trial so that the matter could be investigated by the county police department, the trial court resumed the hearing and made findings.

Significantly, the trial judge concluded that while the Mother had presented sufficient evidence to prove the predicate act of harassment, there was no need for a FRO in order to protect her against future acts of abuse by the Father, in accordance with the seminal case of Silver v. Silver. Specifically, the trial judge did not find that the Mother was in immediate danger in primary part because there were already safeguards in place in the form of prior civil restraints that were entered into by the parties in 2017 and because the paternal grandfather, who supervises the Father’s parenting time with M.W., intervened in breaking up the conflict that led to the TRO and could continue to intervene in the future, if need be.

As a result of these findings, the trial judge entered a dismissal order for the TRO, but added a provision that the parties maintain at least 20 yards distance between each other at M.W.’s sporting events. The order further stated that the supervising paternal grandfather would be the intermediary for all necessary communication between the parties to prevent any further dustups. The trial judge commented that the Father “now gets it” and would not consider the lunch break incident that occurred during the second day of the FRO hearing based on the fact that there was no TRO before the Court regarding that specific incident.

An appeal thereafter ensued which was filed by the Mother to vacate the dismissal of the TRO that was entered by the trial court. Upon review of the record below, the Appellate Division reversed the trial court’s decision and remanded back to the trial court for entry of the FRO. In reaching this decision, the Appellate Division was particularly critical of how the trial court misapplied the two-prong test in Silver and failed to consider pertinent facts which should have warranted the entry of a FRO.

The Appellate Division found troubling the trial court’s analysis that the Mother’s husband and the paternal grandfather could protect her in the future and, therefore, there would be no need for additional protection. To the contrary, it was understood during the FRO hearing that these third parties were unable to prevent the Father’s acts of domestic violence on August 29th. The Appellate Division made clear that the trial court should not consider the capacity of third parties to protect a domestic violence victim from their abuser when assessing the need for protection under the second prong of Silver.

Furthermore, there was no basis for the trial court to rely on the civil restraints that the parties had previously signed in 2017 when there was ample evidence that the Father continued his course of abusive behavior towards the Mother. Accordingly, the Appellate Division concluded that the denial of a FRO by the trial court was made in error and incongruent with the overwhelming evidence in the record that was presented during the FRO hearing.

Observation: Apart from clarifying the application of Silver, the take away from this case is the need for the Court to do a better job in separating defendants from victims who are summoned to court for a domestic violence hearing. Here, another potential incident had occurred between the parties during the lunch break as the Court had failed to keep the parties separated. Perhaps the Court should stagger the times for appearances by each side; dismiss the parties from the courtroom separately; sheriff escort victims in the courthouse and to their vehicles. By its nature, where a TRO keeps the parties apart, a court summons brings them into potential contact and it is incumbent upon the judicial system to address this concern.

Lopresti v. Johnson et al., 2023 W.L. 6890732 (3d Cir. 2023)

Issue: Does the New Jersey child support law, N.J.S.A. 2A:17-56.67a, which requires a non-custodial parent to financially support a child who is past the age of majority and attending college violate the 14th Amendment Equal Protection and Due Process Clauses of the U.S. Constitution to the extent that the law treats divorced parents differently than married parents and infringes upon the fundamental right of parents to control the education of their children?

Holding: No. The New Jersey child support statute does not contravene the Equal Protection Clause as the law is rationally related to a legitimate governmental purpose in furthering the government’s interest in promoting access for children to higher education and helping children strive to secure a college degree. Moreover, while parents do have a fundamental right in directing the upbringing and education of their children under their control, there is no liberty interest in which a parent is entitled to protection under the Due Process Clause as it relates to avoiding financial obligations to a child which are validly imposed by state law and where the child is above the age of majority.

Discussion: This case arises from the child support obligations of the plaintiff, Larnado Pittman (hereinafter “Pittman”), in the aftermath of Pittman’s divorce from his former spouse. Pittman, who was designated as the non-custodial parent, had been making child support payments to his former spouse for the care of their daughter. Upon their daughter turning 19 years old, Pittman’s former spouse requested that Pittman’s child support obligations continue based on their daughter’s full-time enrollment in college. Accordingly, in April 2020, the trial court in New Jersey granted the request of Pittman’s former spouse and entered a Post-Majority Support Order (“PMSO”) requesting that Pittman continue to pay child support until May 5, 2023.

As a result of the PMSO being entered, Pittman initially filed an application for relief in the New Jersey family court to set aside this obligation. After failing to obtain relief from his motion, he thereafter filed suit in federal court against various New Jersey officials in which he claimed that the post-majority support law violated the Equal Protection and Due Process Clauses of the 14th Amendment of the U.S. Constitution. The thrust of Pittman’s claim was that the post-majority support law in New Jersey denied equal protection to non-custodial parents by requiring them to finance their children’s college education past the age of majority when there was no state-imposed obligation which existed for married, custodial parents. He also contended that the law violated substantive due process to the extent that it infringed upon the fundamental right of parents to control the upbringing and education of their children.

The District Court subsequently dismissed Pittman’s constitutional challenges in primary part for failing to state a claim in which relief could be granted. Following this dismissal, Pittman initiated an appeal with the U.S. Court of Appeals for the 3rd Circuit. While Pittman’s appeal was pending, his support obligations under the PMSO had expired.

Although the State of New Jersey (hereinafter “State”) which collectively represented the named defendants in this action moved to dismiss Pittman’s appeal as moot based on a change of circumstances with the PMSO, the Circuit Court of Appeals denied the State’s application. The Circuit Court of Appeals found that not only did it have the right to determine its own jurisdiction, but Pittman had a continuing obligation to pay his past-due child support under the PMSO which had continuing, adverse effects. Moreover, the Court explained that while Pittman was not seeking to recoup prior child support payments, he stood to benefit from a favorable ruling to the extent that it relieved him from existing financial obligations which were unpaid.

As for the additional argument by the State that Pittman could not obtain relief based on his own unclean hands for failing to make timely child support payment pursuant to the PMSO, the Circuit Court of Appeals found that the doctrine of unclean hands was not applicable and that this argument was uncompelling. The Court noted that the doctrine of unclean hands requires a type of unconscionable conduct by a party which goes beyond the mere wrongdoing of not paying a support obligation. In this case, there was no fraud or deceit by Pittman which would warrant his appeal to be dismissed without being adjudicated on the merits.

In addressing Pittman’s claim that N.J.S.A. 2A:17-56.67a was contrary to the Equal Protection Clause of the 14th Amendment, the 3rd Circuit explained that a rational basis review of the statute was justified. Rational basis review was appropriate because neither the marital nor custodial status of a party is recognized to be a suspect or quasi-suspect classification such as race or gender. Thus, the Court made clear that under rational basis review, the government must demonstrate that there is a rational relationship between the disparity of treatment and a legitimate government purpose.

The Court explained that the legitimate government purpose behind the post-majority child support law was to promote access to higher education among New Jersey’s youth. In fact, Pittman never disputed that the education and acquisition of knowledge for children of divorced parents who have more difficulty paying for college than children of married parents were legitimate government interests. Furthermore, the Court added that the New Jersey statute was entitled to a presumption of validity in which Pittman did not meet his burden of negating all conceivable justifications for the State’s disparate treatment of parental classes. Because Pittman did not meet his burden in this regard, the 3rd Circuit affirmed the District Court’s dismissal of Pittman’s equal protection claim.

As for the substantive due process claims raised by Pittman, the 3rd Circuit acknowledged that the issue of whether a parent’s liberty interest in controlling the education and upbringing of their children encompasses with it the right to refuse post-majority child support had never been addressed by their Court or the Supreme Court. Similar to the analysis that was undertaken for equal protection, the Court determined that rational basis review also applied to Pittman’s substantive due process challenges provided that the New Jersey law did not abridge certain fundamental rights and liberty interests.

While the Circuit Court of Appeals acknowledged that parents have certain fundamental rights regarding the care, custody, and control of their children, those rights are not limitless. In fact, the Court observed that the Supreme Court previously held that there was no legitimate right or liberty interest in a parent avoiding financial obligations to his natural child that were validly imposed by state law. Moreover, the Court emphasized that the fundamental guarantees of the Due Process Clause that are accorded to a parent with respect to decisions for a child do not extend to a parent’s interest in making decisions for their independent adult child. In the absence of any clear guidance or precedent from the Supreme Court regarding this issue, the Court declined to hold that parents have a fundamental right in deciding whether to fund the post-secondary education of their adult children. Since Pittman was unable to plausibly argue that the child support law in New Jersey did not bear a rational relationship to the State’s legitimate government purposes, the Court concurred with the District Court in dismissing his substantive due process claim.

Observation: The next time someone challenges the validity of New Jersey law which provides for child support and contribution to college for children over the age of majority, you have Lopresti which holds that the law passes muster under both the due process and equal protection clauses. While it may be comforting that New Jersey law is held constitutional in this case, practitioners will want to keep an eye on efforts in Trenton to limit the degree to which parents can be so compelled. Especially as New Jersey stands in the minority of jurisdictions compelling parents to contribute to the college education of their children, the Legislature is frequently petitioned to abolish or limit this right. For now, however, Newburgh v. Arrigo, 88 N.J. 529 (1982) and its progeny remain good law.

Freedman v. Freedman, 474 N.J. Super. 291 (App. Div. 2023)

Issue: Does the Family Part have jurisdiction to decide a case involving the disposition of the cremation remains and personal effects of a deceased child?

Holding: No. Such proceedings shall be filed and heard in the Probate Part. The Family Part continues to have jurisdiction to hear applications for a termination of child support, medical insurance coverage, and life insurance coverage following a child’s death.

Discussion: The parties were married in 2001 and their child (Hendrix) was also born that year. The parties were divorced in 2007 agreeing to joint legal custody, with a 4/3 arrangement in favor of the father. By 2010, things change to the point where the mother is now parent of primary residence and the father is parent of alternate residence, with the father requesting reunification therapy. Fast forward to 2021 and Hendrix dies in what is labeled an accident while in college in Colorado. Following his death, the mother unilaterally cremated Hendrix’s body without informing the father that their son had died, preventing him from participating in the cremation decision and attending the memorial service. Following Hendrix’s cremation, the mother maintained sole possession of his ashes and his remaining personal effects, and refused to divide them with the father.

On March 31, 2021, the family part granted the father’s Order to Show Cause and temporarily restrained the mother, or anyone acting on her behalf, from discarding or destroying Hendrix’s ashes and personal effects. Thereafter, the parties filed post-judgment Motions that were heard in April 2021. Among other relief, the father requested one-half of Hendrix’s ashes, one-half of Hendrix’s belongings, and a termination of all child support provisions. Meanwhile, the mother requested sole control over Hendrix’s remains and personal property.
Pursuant to their Motions, it was made clear that the father had virtually no relationship with the parties’ son during the five years preceding Hendrix’s death; however, the parties disputed the cause of the estrangement. The mother argued that the father and Hendrix never had a good relationship, that the father exercised inconsistent parenting time with Hendrix over the years, and that the father unilaterally cut-off all contact with Hendrix sometime in 2016. Conversely, the father argued that he previously had a great relationship with Hendrix, but that the mother alienated him from their son post-divorce.

On April 30, 2021, the family part judge issued an oral decision on the record, which was later embodied in a June 21, 2021 Order. In relevant part, the trial court reserved its’ prior ruling on the issue of the distribution of the ashes “until trial,” denied the father’s request to receive one-half of Hendrix’s personal belongings without prejudice; and granted the father’s request for a termination of all child support provisions effective the date of Hendrix’s death. The next day, the family part judge issued an Amended Order sua sponte that substantially modified the terms of the June 21, 2021 Order without further notice or hearing. In relevant part, the June 22, 2021 Amended Order granted the mother possession of Hendrix’s ashes based on her representation that she planned to distribute them in various locations that she knew her son either visited or wanted to visit and allowed the father to be informed and to have unlimited access to the places that the ashes would be distributed. In addition, the June 22, 2021 Amended Order stated that the issue of Hendrix’s belongings was moot based on the mother’s representation that none of his belongings were still available.

The parties appealed the June 21, and June 22, 2021 Orders, although the Appellate Division declined to hear the father’s application on an emergent basis while the orders were stayed pending appeal. On appeal, the father argued in primary part that the trial court erred in failing to hold a plenary hearing to determine the appropriate distribution of the unemancipated child’s ashes, especially given the dispute of material facts regarding his relationship with Hendrix. In her cross-appeal, the mother argued that no plenary hearing was necessary because the New Jersey Cemetery Act, 2003 (Cemetery Act), N.J.S.A. 45:27-1 to -41, controlled this issue and she was the only parent with a close relationship with Hendrix at the time of his death.

In the first part of its ruling, the Appellate Division held that the proceedings underlying the appeal should have been filed and heard in the Probate Part, not the Family Part. The Appellate Division confirmed that the application to terminate child support and medical insurance coverage was properly before the Family Part, but that the Family Part lacked jurisdiction to hear all other applications filed after Hendrix’s death.

In the second part of its ruling, the Appellate Division confirmed that the disposition of Hendrix’s cremation remains was governed by the New Jersey Cemetery Act, 2003 (Cemetery Act), N.J.S.A. 45:27-1 to -41, and its interpretive case law. The aforesaid statute provides that if the decedent does not have a spouse or children, then the parents shall control the disposition of the remains. The statute does not give priority to one parent over the other; however, the Appellate Division noted that the court has the authority to resolve such disputes between next-of-kin. In re Estate of Travers, 457 N.J. Super. 477, 482-83 (Ch. Div. 2017) (citing Marino v. Marino, 200 N.J. 315, 322 (2009).

The Appellate Division further noted that the Travers case presented similar facts to the case at bar whereby the divorced parents argued over whether their son should be cremated or buried, which issue was resolved utilizing a four-prong test. In issuing its ruling, the Appellate Division adopted “a modified version” of the Travers test as follows:

(1) Which parent is more likely to abide by the decedent’s expressed preferences, if any;
(2) Which parent had a closer relationship with the decedent and is in a better position to deduce the decedent’s preferences and expectations upon death;
(3) Which parent is more likely to adhere to the religious beliefs and cultural practices of the decedent, to the extent that such beliefs and practices pertain to funeral arrangements or the disposal of remains and reflect the decedent’s preferences; and
(4) Which parent will likely be designated administrator of the estate and act in the best interests of the estate relating to the funeral arrangements and disposition of the decedent’s remains.

Applying the modified test, the Appellate Division concluded that factors (1), (3), and (4) did not apply. Specifically, Hendrix had not expressed preferences regarding his remains or effects, neither Hendrix nor his parents had expressed any particular religious beliefs to be considered, and Hendrix’s assets were of “minimal economic value,” such that no estate had been filed with the Surrogate. Factor two was thus dispositive.

As to factor two of the modified test, the Appellate Division opined that Hendrix lived exclusively with his mother since at least 2015 until he left for college and that the father exercised no parenting time with Hendrix after 2016. Thus, the Appellate Division concluded that the mother had the closer relationship with Hendrix at the time of his death and was in a better position to ascertain Hendrix’s preferences and expectations, even though the parties contested the reasons as to why that occurred. Although the Appellate Division recognized that there was a dispute as to how the relationship between the parents and Hendrix unfolded, the panel explained that the father “had ample opportunity to seek relief in the Family Part from the mother’s alleged conduct when his parenting time and ability to communicate with Hendrix was curtailed or prevented from 2016 until Hendrix’s eighteenth birthday; however, he chose not to do so.”

Observation: The obvious lesson for family practitioners is that if a parent is being alienated from a child, the correct course of action is to pursue legal action to address the alienation and repair the relationship as soon as possible. To do nothing, no matter the motivation, leaves the Court to conclude that the failure to have a relationship with a child rests with the alleged aggrieved party (i.e. is it alienation or estrangement?) The Appellate Division denied the father’s request for a plenary hearing to address the question of why he had no contact with his son for five years, as the panel concluded that the issue was deemed to be “waived” by the father’s inaction.

Branco v. Rodrigues et al., 476 N.J. Super. 110 (App. Div. 2023)

Issue: Was the transfer of a recorded deed converting a fee simple estate into a joint tenancy with rights of survivorship a valid inter vivos gift where the donor never informed the donee about the conveyance and the donee only discovered the estate interest after the donor’s death?

Holding: Yes. The deed which transferred an estate interest to the donee was a valid inter vivos gift insofar as it satisfied the essential elements of delivery, intent, and acceptance along with an additional element that the donor sought to relinquish ownership and control over the subject matter of the gift. The fact that the donor recorded the deed and unilaterally dissolved his fee simple interest raised a strong presumption as to the validity of the transfer, which could not be overcome by the donor’s estate.

Discussion: This case involves a quiet title action primarily between the plaintiff, (hereinafter “Branco”) and the estate of the plaintiff’s long-time partner, Jose Rodrigues, who is one of the named defendants (hereinafter “Estate of Rodrigues”). Branco was in a nonmarital relationship with Rodrigues for approximately 25 years during which time they had been living together until Rodrigues passed away in a car accident in June 2020. Rodrigues was an entrepreneur who owned several real properties in New Jersey among which included a 16-unit multifamily residential building in Newark that was an income-producing asset. Rodrigues died intestate as he did not have a Last Will and Testament providing for a distribution of his assets.

In March 2007, unbeknownst to Branco at the time, Rodrigues conveyed title to the Newark property for nominal consideration which converted his fee simple interest in the property to joint tenancy with rights of survivorship for himself and Branco. Although the deed to the property was recorded in April 2007, Rodrigues never disclosed the conveyance to Branco nor did Branco discover the conveyance until Rodrigues’ death, which was 13 years subsequent to the date of conveyance.

Following Rodrigues’ death, the administrator of Rodrigues’ estate, Francisco Andre Rodrigues, forwarded rental checks from the property to Branco beginning in July 2020. In August 2020, Branco ordered a title search to the property where she first learned of her interest in the estate. Upon learning of this information, Branco formed a real estate holding company and transferred title of the property to the entity.

A verified complaint was filed by Branco in December 2020 which sought in relevant part injunctive relief, including a full accounting and administration of the Estate of Rodrigues, along with a separate injunction to prohibit the Estate from transferring or conducting business involving the property. All these claims were ultimately dismissed by Branco except for quiet title. The trial court addressed applications for summary judgment in January 2022.

The issue that the trial court was presented with was whether the property transfer was a completed inter vivos gift. In deciding the issue, the trial court found that all the requisite elements of an inter vivos transfer were met. Regardless of Branco’s lack of awareness of her estate interest when Rodrigues was alive, the trial court determined that there was donative intent insofar as Rodrigues continuously supported Branco financially with income generated by the property. The fact that the deed was also recorded constituted constructive notice to third parties about Branco’s property interest which the trial court believed favored Branco in granting her summary judgment.

The Estate of Rodrigues along with the other named defendants appealed the trial court’s order granting summary judgment to Branco. They contended that Branco failed to produce definitive evidence of Rodrigues’ donative intent and that the gifting was defective and transfer of title void because the three requisite elements of delivery, intent, and acceptance were not established.
The Appellate Division affirmed the ruling of the trial court in granting summary judgment in Branco’s favor regarding her interest in the property. By way of background, the Appellate Division made clear that there are four elements in order to demonstrate a valid and irrevocable inter vivos gift in New Jersey: (1) an act of actual symbolic delivery; (2) the donor must possess an intent to give; (3) the donee must accept the gift; and (4) a relinquishment or parting by the donor of ownership or dominion over the subject matter of the gift.

The Appellate Division noted that the transfer of title to the property from Rodrigues as a fee simple interest to himself and Branco as joint tenants with rights of survivorship was effective since there was a signed writing in the form of a deed which was also recorded. The recorded deed satisfied both the New Jersey Statute of Frauds, N.J.S.A. 25:1-11, as well as the recording statute, N.J.S.A. 46:26A-12, which gave constructive notice to all subsequent purchasers, mortgagees, and judgments creditors of its execution. The Appellate Division added that the mere act of recording the deed which conveyed title to Branco was evidence in and of itself of Rodrigues’ donative intent as the recorded deed manifested an intent that the new deed become immediately operative. The Court explained that the defendant also asserted no other evidence to support a lack of donative intent other than to present the unavailing argument that Rodrigues never informed Branco of the execution or existence of the deed.

There was also a strong presumption that the transfer was a gift based on the fact that Rodrigues took affirmative and unilateral action in dissolving his greater fee simple interest and converting it to a joint tenancy with rights of survivorship with Branco. Since the gift was presumed, the acceptance by Branco was also presumed being that she did not exercise her right to disclaim the gift within a reasonable time after she become aware that she held an interest in the property.

With regard to the final element of donor relinquishment, the Appellate Division found that by changing the estate interest from a fee simple to a joint tenancy with rights of survivorship, Rodrigues could not have revoked this transfer without Branco’s consent or by court intervention. The Appellate Division acknowledges that while Rodrigues could have filed a partition action with a court of equity to sever the real property while he was alive, this would have only resulted in converting the parties’ interest into a tenancy in common and would not have served to either revoke the gift or restore Rodrigues’ fee simple estate. Thus, the actions on the part of Rodrigues were compelling as he sought to irrevocably change the status of his fee simple estate which was sufficient to meet the relinquishment element necessary to establish an inter vivos gift.

Observation: Every day, family law practitioners are faced with claims that certain assets are exempt as a result of a gift. Thus, it is necessary that attorneys understand what constitutes a gift and gift law. Here, the estate argued there was no gift because the donee had no knowledge of the gift and therefore could not accept it. The Appellate Division held that acceptance could be presumed because the donee did not disclaim within a reasonable time after learning of the gift.

When we see cases of this type in the Family Court, we recognize them as palimony actions. Here, the parties were living together for 15 years without ever getting married. But this case did not become a palimony case as here the financially secure party made appropriate arrangements for the cohabitant. And so, as opposed to a cohabitant suing the estate under palimony – here we have the estate contesting the conveyance made by the decedent to the cohabitant.

Satz v. Satz, 476 N.J. Super. 536 (App. Div. 2023)

Issue: Did the trial court abuse its discretion in ordering the defendant to comply with explicit and detailed provisions of the parties’ Marital Settlement Agreement (“MSA”), among which included signing an arbitration agreement and participating in beis din rabbinical court proceedings?

Holding: No. The terms of the MSA were neither unconscionable nor contrary to public policy, which would render the agreement unenforceable. In that vein, the parties each made concessions to resolve their divorce litigation, they were each represented by competent counsel, and they each entered into a comprehensive agreement, which was the product of extensive negotiations. Accordingly, the trial court had the authority to enforce the MSA as written, as it was deemed a legally binding and enforceable contract.

Discussion: The plaintiff (hereinafter “Wife”) and defendant (hereinafter “Husband”) were embroiled in two years of acrimonious litigation which culminated in a divorce trial that began in September 2020. A major aspect of the parties’ ongoing dispute revolved around the Wife’s desire to obtain a get which is a divorce that is recognized under Jewish religious law. Prior to the conclusion of the trial, the parties reached an agreement as to all issues including each party’s obligation with respect to beis din proceedings in order for the Wife to obtain the get.
Before the MSA was memorialized, the trial court took testimony from the Husband in order to confirm his understanding and agreement as it related to the beis din provision. The Husband testified that he would respond to any summons which he received from the beis din and would agree to be bound by any decision the rabbinical court made regarding the get.
An MSA was executed on October 6, 2020 in accordance with the testimony that was taken of the parties and findings which were made by the trial court. Article IX of the MSA titled “Beis Din Proceedings/Get Issue provided in relevant part as follows:

“Both parties agree to respond to any summons from a [b]eis [d]in regarding the [g]et which shall be decided in accordance with Jewish [l]aw…Both parties shall timely participate in the [b]eis [d]in proceeding. Both parties will answer any summons in a prompt manner. [Defendant] represents that he may be opposing the [plaintiff]’s request for a [g]et. The parties agree that their submission to the [b]eis [d]in shall constitute an agreement to be bound by the [b]eis [d]in decision on an issue the [b]eis [d]in addresses, and the [b]eis [d]in shall have the authority to order monetary awards relating to the Jewish law matters before it, which awards may be confirmed in a court of law. Both parties shall participate in this process freely and voluntarily. Both parties shall abide by the recommendations of the [b]eis [d]in…”

On the day that the MSA was executed, the Husband testified before the trial court that he was not coerced into signing the MSA and he believed that the agreement was fair and reasonable under the circumstances. The Husband further testified that he would timely cooperate with the beis din proceedings as well as any recommendations made by the beis din and if he failed to comply, that he would be subject to sanctions by the Family Part.

At a subsequent Case Management Conference, the trial court was advised that the Husband had not complied with his obligations under the MSA, including participating in the beis din proceedings. Accordingly, a post-judgment Order was entered on December 6, 2021 which stated that the Husband shall participate in the beis din proceedings pursuant to Article IX of the parties’ MSA. Despite the entry of the December 6, 2021 Order, the Husband refused to participate in the beis din proceedings.

On January 25, 2022, the Wife filed an application for enforcement of the December 6, 2021 Order while the Husband cross-moved for a denial of the plaintiff’s application and a stay of any order enforcing Article IX of the MSA regarding the beis din proceedings. After hearing the parties’ respective post-judgment applications on March 25, 2022, the trial court granted the Wife’s request that the Husband participate in the beis din proceedings, denied the Husband’s application for a stay, and also awarded counsel fees to the Wife in finding that the Husband acted in bad faith by not complying with the trial court’s previous orders.

Between April 2022 and July 2022, the Husband filed multiple notices of appeal based on prior Orders entered by the trial court on June 30, 2021, October 20, 2021, December 6, 2021, March 25, 2022, and May 27, 2022. Contemporaneous with these filings in the Appellate Division, a beis din hearing finally occurred on May 11, 2022. The beis din issued a 15-page decision in which it ruled that the Husband had not properly responded to summonses from the rabbinical courts, that he was obligated to divorce the Wife immediately, and that the Husband’s refusal to provide the Wife a get was a form of abuse. The beis din decision further made clear that the Husband signed an arbitration agreement in which he agreed to a hearing and to accept the rules and procedures of the beis din.

As part of the plethora of arguments that the Husband raised before the Appellate Division, he contended in relevant part that the trial court had no authority to order him to arbitrate and participate in the beis din and that the trial court also violated the First Amendment by ruling on a “religious” agreement. The Appellate Division found the Husband’s arguments to be uncompelling and affirmed the decision of the trial court. Specifically, the Appellate Division found that the plain language of the MSA coupled with the detailed testimony of the Husband in the trial court made clear that the Husband knowingly and voluntarily agreed to participate in the beis din proceedings. In that regard, the Appellate Division noted that the Husband had full awareness that obtaining a get was extremely important to the Wife and that it was a material aspect of the parties’ agreement because absent a get, the Wife would continue to be viewed as a married person under Jewish law and would be unable to get remarried within her faith.

As for the argument proffered by the Husband that the trial court violated his First Amendment rights by ordering him to participate in the beis din proceedings and to sign a religious document, the Appellate Division explained that the trial court was asked by the Wife to enforce a civil contract (i.e., the MSA) not a religious one. Moreover, the Appellate Division explained that the trial court did not substantively review or affirm the beis din religious ruling, but merely enforced the procedural term of the MSA that obligated the Husband to abide by the ruling of the beis din. The Appellate Division made clear that there is no improper entanglement with religion under the First Amendment Establishment Clause because the trial court did not seek to interpret rabbinical law and applied well-settled principles of civil contract law only.

Finally, the Appellate Division concluded that the award of counsel fees to the Wife by the trial court was proper. It noted that Article VII, paragraph 5 of the MSA included indemnification language in which the breaching party was obligated to indemnify the non-breaching party for all reasonable counsel fees and costs that the non-breaching party incurred for having to enforce any provision of the agreement. The Husband’s failure to comply with his obligations under the MSA was a compelling factor in awarding fees. Furthermore, the record below in which the trial court reviewed the Husband’s Certification of Services clearly reflected that the Husband had the financial ability to pay the Wife’s counsel fees.

Observation: Religious issues are truly the third rail in Family Court and the courts strive to avoid them whenever possible. And so, in the unreported case of Bierig-Kiejdan v. Kiejdan, ___ N.J. Super.____ (App. Div. 2023), the court refused to compel arbitration by a beis din over whether to grant a get where it was not clear that the parties agreed to enter arbitration over that issue. The key is if the parties want to agree on religious issues, the Agreement should be in writing with all terms outlined in detail, and the parties should be placed under oath to confirm their agreement. In Satz, the Court concludes that it was enforcing nothing more than a civil agreement reached by consenting adults. See also Judge Selser’s opinion in Odattala v. Odattala, 355 N.J. Super. 305 (Ch. Div. 2002) for a similar analysis.

S.B.B. v. L.B.B., 476 N.J. Super. 575 (App. Div. 2023)

Issue: Did the trial court err in entering a Final Restraining Order against the Wife based on the predicate act of harassment where the Wife created a video accusing her estranged Husband of withholding a get and asking members of the Orthodox Jewish community to “press” the Husband to give her a get, which video was later disseminated to the Husband through social media?

Holding: Yes. The uploading of the video falls under the purview of constitutionally protected free speech and is not an act of domestic violence. The Appellate Division found the communication by the Wife in the video was not made to threaten or menace the Husband, but was merely intended to assist the Wife with obtaining a get. There was also no evidence that the Husband’s safety or security was put at risk by the Wife by creating the video, or that there was risk of danger to the Husband in the future.

Discussion: S.B.B. (hereinafter “Husband”) and L.B.B. (hereinafter “Wife”) were married for twenty years and they were both members of the Orthodox Jewish faith. The parties had been going through divorce proceedings since mid-2019 which became contentious and complicated based on a dispute between the parties in which the Wife requested that the Husband provide her with a get, which is otherwise known as a religious bill of divorce in the Jewish faith.

In March 2021, the Wife made a video in which she accused the Husband of refusing to give her a get and made a plea for anyone to “press” the Husband to give her a get.
On March 14, 2021, the Husband received a message from his sister in Israel. The message contained a photo of the Husband which was posted as his status on the WhatsApp messaging app. Above the photo of the Husband included the following written statement:

“This man has refused to give his wife a get. His name is [S.B.B.]. He is holding his wife chained for over a year and a half. He lives in Elizabeth NJ. If you see him, tell him to free his wife. #FREE[L.B.B.].

Between March 14 and 15, 2021, the Husband received numerous communications among which included approximately ten private or anonymous phone calls. The Husband also received a message from the Chief Rabbi’s son which included the video that was made by the Wife requesting that the Jewish community help her obtain a get from the Husband. Several friends of the Husband also sent the video to the Husband who became concerned as to his safety based on what he believed to be a history of harm to husbands in the Orthodox Jewish community who are deemed to be get refuses.

On March 19, 2021, the Husband obtained a Temporary Restraining Order (“TRO”) against the Wife in which he alleged a predicate act of harassment in his domestic violence complaint. As part of obtaining the TRO, the Husband testified that around 3:00 p.m. on March 12, 2021, he received numerous telephone calls from unknown numbers, a photograph which identified him as a get refuser, and the actual video that the Wife composed.

During the FRO trial, the Husband testified that he thought that the Wife posted the video because she wanted to press people to give her a get. He made clear during his testimony that under Jewish rules and traditions, “pressing” him for a get could mean protesting which may escalate to physical harm. The Husband testified that his father had previously been beaten up because he was a get refuser and that he was shocked, embarrassed, and scared by the photo which he received from his sister. The Husband also denied that he was a get refuser as he explained that he had given the get to the Chief Rabbi of Elizabeth. It was his understanding that the get would be provided to the Wife within one to two days after the civil divorce was made final in court.

After the Wife unsuccessfully moved for a directed verdict following the Husband’s case in chief, the Wife gave extensive testimony that it was not her intent to harass the Husband. The Wife testified that she admitted creating the video around March 6, 2021 at the request of a rabbinical judge and she claimed that she only sent the video to the rabbinical judge. The Wife testified that she played no part in the numerous phone calls to the Husband and did not know who made them. She further testified that the first time she saw the social media photo image was when she received it from a friend, but that she had no role or involvement in creating the photo or posting it on social media.

During cross-examination, the Wife was adamant that she did not believe accusing the Husband of withholding the get would put him in any danger of being threatened or hurt. She also was not aware of the Husband’s father being attacked or harmed as a result of his get refusal, but rather, it was her understanding that he spent a period of time in jail.

Following completion of the testimony, the trial judge rendered an oral decision finding the Husband’s testimony to be credible and the Wife to be not credible based on demeanor, body language, and content of their testimonies. The trial judge noted that the Wife’s testimony did not make much sense, particularly as she made the video for the rabbinical judges yet, made a plea for anyone who could help her. While the end result of making the video and sending it to the community may have been to obtain a get, the trial judge concluded that the manner in which she went about making the request was conducted with a purpose to press, harass, annoy, and alarm. The trial judge determined that the communications by the Wife were both harassing and invasive of the Husband’s privacy.

In addition to finding that there was sufficient evidence as to predicate acts of domestic violence, the judge also declared that an FRO was warranted in order to protect the Husband from the continued behavior by the Wife of inciting the community that the Husband was a get refuser. The judge noted that by telling the Jewish community that the Husband is a get refuser, it subjected him to danger or imprisonment.

The trial judge also rejected the Wife’s free speech arguments in adding that the Wife cannot hide behind First Amendment protection when the communication was intended to incite action, which is invasive of the Husband’s safety and privacy. Without any expert testimony during the FRO hearing, it was gleaned by the trial court during the Husband’s testimony that being a get refuser in the Jewish faith is a very serious allegation which carries substantial consequences.

Following the entry of the FRO by the trial court, the Wife filed a motion for reconsideration. In support of this application, the Wife submitted a certification from a rabbi claiming to be an expert trained on the laws of Jewish divorce. The rabbi explained that in his opinion withholding a get is a form of abuse as the woman is essentially chained to the marriage. In his certification, the rabbi noted that even rabbinical courts lack the power to force a husband to grant a get. The rabbi also opined that the video created by the Wife was merely an attempt to rally community support and get public sympathy in a social justice movement. The Wife also submitted her own certification stating that the Husband never authorized the Chief Rabbi to give her a get. She also certified that she felt that her only recourse was to seek public sympathy in order to obtain a get from the Husband.

After having reviewed the submissions and heard oral argument, the trial judge denied the Wife’s motion for reconsideration on August 27, 2021. The trial judge’s decision was based in primary part on the fact that the Wife could have presented the expert testimony during the FRO trial and that whether the Husband actually satisfied the giving of the get was irrelevant to the ultimate issue. The trial judge also awarded the Husband attorney’s fees as compensatory damages in the amount of $10,035.00.

The matter was subsequently taken up by the Wife for review before the Appellate Division. There were seven organizations which appeared amici curiae in support of the Wife’s positions, including but not limited to the American Civil Liberties Union of New Jersey, the Jewish Orthodox Feminist Alliance, the Organization for the Resolution of Agunot, Unchained at Last, and Shalom Task Force.

As a starting point, the Appellate Division reviewed the analysis that was undertaken by the trial court in granting a FRO to the Husband. The Appellate Division observed that the predicate act of harassment was solely based on the Wife’s creation and dissemination of a video. Although the trial judge found that the Wife’s communications fell under the “catchall provision” of N.J.S.A. 2C:33-4(a) being made in “any other manner to cause annoyance or alarm,” the Appellate Division noted that the catchall provision of subsection (a) is to apply only as to those communications that are also invasive to the recipient’s privacy.

The Appellate Division further elaborated that harassment, as a speech-regulating statute, is under the purview of the federal and state constitutions. Under the First Amendment to the United States Constitution, “Congress shall make no law… abridging the freedom of speech, or the of the press; or of the people’s right to assemble.” Furthermore, Article I, Paragraph 6 of the New Jersey Constitution provides that “[e]very person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to retrain or abridge the liberty of speech of the press.”

Based on constitutional law and case precedent, the Appellate Division declared that the video, whether viewed on its own or the context in which it was disseminated, did not fall outside the First Amendment’s protection. Although the trial judge was persuaded that the communication by the Wife was invasive of the Husband’s safety and privacy and that members of the Jewish community would be incited to act violently based on being identified as a get refuser, a general history of violent treatment against get refusers was insufficient to render the Wife’s video as a true threat of imminent danger to satisfy the incitement requirement.

The Appellate Division added that the First Amendment does not prohibit name-calling or language which may be characterized as vituperative, abusive, and inexact. Thus, it was difficult to envision how the Wife’s video, without nonspecific threatening connotations, could be unprotected based on the First Amendment.

Along similar lines, the Appellate Division found that the trial judge’s suggestion during the FRO hearing that the Husband should not be bothered with anonymous phone calls, threats, or picketing at his house was also insufficient to render the Wife’s communications illicit, especially as there was no evidence linking the Wife to making phone calls or disclosing the Husband’s contact information. Only the photo image that was posted on social media, which was not created by the Wife, identified the Husband’s hometown.

With regard to get refusers like the Husband’s father being subjected to imprisonment, the Appellate Division found that there was no such offense in the penal code. The Appellate Division posited that only Israeli courts, where marriage and divorce are governed exclusively by religious law, retain the power to impose sanctions including fines or jail sentences for get refusals. Accordingly, the trial judge’s conclusions that there would be a threat of violence or specter of imprisonment to the Husband by refusing to give the Wife a get was unsupported by the record.

In the absence of any credible evidence that the video incited or produced imminent lawless action or was likely to do so, the Appellate Division concluded that the Wife’s communication did not violate the First Amendment based on incitement. Nor was the Wife’s conduct an invasion of the Husband’s privacy in violation of subsection (a) of the harassment statute as N.J.S.A. 2C:33-4 criminalizes only private annoyances which would not be entitled to constitutional protection. Accordingly, the Appellate Division vacated the FRO as well as the counsel fee award to the Husband.

Observation: In Satz, we discussed the authority of the court to enforce an agreement reached by the parties to cooperate in having a beis din determine whether to grant a get. S.B.B. addresses a domestic violence mater which arises from a case where there is no agreement to participate in a beis din or to obtain a get. New York has enacted legislation requiring parties coming to court for divorce to certify that they will remove all barriers to remarriage upon obtaining a divorce. New Jersey has no law governing this issue as of this writing. S.B.B. makes clear that the making and dissemination of a video attacking the other party for failure to grant a get cannot constitute harassment if it is protected free speech under the First Amendment. S.B.B. is instructive that vituperative language alone that causes someone to be shunned, embarrassed, or picketed does not rise to the level of domestic violence.

In re Estate of Michael D. Jones______ N.J. Super. ______ (App. Div. 2023)

Issue: As to U.S. savings bonds, is the beneficiary designation of a spouse during the marriage automatically revoked upon divorce?

Holding: No. The divorce settlement agreement and the divorce itself are not enough to overcome federal law which is pre-emptive and provides that the proceeds of the U.S. savings bonds go to the designated beneficiary. The owner of the bonds must take additional steps to surrender the bond to an authorized agent and submit a request for reissue using specified”[s]ervice forms.” Likewise, the submission of certified documents to establish the divorce decree’s validity is also required to modify a beneficiary designation.

Discussion: In this probate dispute, defendant Jeannine Jones (hereinafter “ex-wife”) appeals from an April 23, 2021 Order granting partial summary judgment and dismissing her creditor’s claim against the estate of her deceased ex-husband, Michael Jones (hereinafter “ex-husband”). The creditor’s claim arose from a 2017 divorce settlement agreement (DSA) between the ex-spouses. In relevant part, the DSA provided that the ex-husband was obligated pay the ex-wife the sum of $200,000.00 over 3 years.

The DSA further provided that if the ex-husband predeceased the ex-wife, “the proceeds from [the ex-husband’s] estate will compensate [the ex-wife] for the remainder of the $200,000.00 in the event there is an unpaid balance.” On the condition that the $200,000.00 was paid in full in accordance with the terms of the DSA, the ex-wife waived all right, title, and claim to certain assets titled in the ex-husband’s name. Notably, the DSA was silent as to the U.S. savings bonds owned by the ex-husband on which the ex-wife was designated the beneficiary.

In accordance with the dictates of the DSA, the ex-husband paid the ex-wife $110,000.00 as of November 1, 2019 before he underwent emergency surgery to treat a perforated gastric ulcer on November 9, 2019. Unfortunately, the surgery was unsuccessful, and, on November 14, 2019, the ex-husband was placed into palliative care. On the same day, November 14, 2019, the ex-husband executed a Banking Power of Attorney (the POA) appointing the ex-wife as attorney-in-fact, which the ex-wife used to withdraw $17,000.00 from his PNC bank account later that day. There were no witnesses to the ex-husband’s signature on the POA other than the ex-wife, and a notary at PNC bank apparently notarized the ex-wife’s signature, but not the ex-husband’s signature.

Following the ex-husband’s death on November 16, 2019, the ex-wife took it upon herself to arrange his funeral, pay his outstanding bills, and maintain the former marital home “to [give] the appearance that someone was there and that it was secure” while it remained vacant. In addition, the ex-wife redeemed a number of U.S. Series EE Bonds (hereinafter “U.S. savings bonds”) in the amount of $77,864.40 that designated her as the pay-on-death (POD) beneficiary, which were stored in the former marital home. As a result of these financial transactions, the ex-husband’s daughter from a different relationship filed an amended complaint and order to show cause seeking, among other things, appointment as the administrator of her father’s estate, a full accounting from the ex-wife of all financial transactions involving her late father’s accounts at the time of his death, a full accounting of all items removed from her late father’s home, removal of the ex-wife from her late father’s home, and estate rent and utility costs for the ex-wife’s occupancy of her late father’s home. In response, the ex-wife filed a pleading designated as an “[a]nswer, [s]eparate [d]efenses, and [c]ounterclaim,” seeking her DSA entitlements. The trial court granted the late daughter’s requests for relief and a hearing was scheduled to address the ex-wife’s entitlements under the DSA.

On August 10, 2020, the ex-wife filed a creditor’s claim against the estate, wherein she claimed that the estate owed her the following: $100,000.00 pursuant to the DSA; $19,833.20 as reimbursement for “medical bills, funeral costs and household bills and real estate taxes paid by [her] from [her] personal funds” on the estate’s behalf; and “[a]ny portion” of Michael’s Department of Health and Human Services Office of Inspector General pension benefits “as determined by [the United States Office of Personnel Management].” The estate responded by arguing that the DSA had already been satisfied because the ex-wife had received $216,864.40 as follows: (1) $17,000.00 withdrawal from her late ex-husband’s PNC bank account prior to his death, (2) $122,000.00 in settlement payments from her late ex-husband, including payments he made to the ex-wife during a reconciliation period, and (3) $77,864.40 from redeeming the U.S. savings bonds that belonged to the late ex-husband, but which designated the ex-wife as the POD beneficiary. On that basis, the estate moved for partial summary judgment on the ex-wife’s DSA-related claims.

During the summary judgment Motion hearing, the ex-wife argued that the bonds were separate and apart from the DSA and should not be credited against her DSA entitlement. In furtherance of her argument, the ex-wife noted that the estate had supplied no evidence of her ex-husband’s intentions regarding the bonds, as well as the fact that the DSA was silent on the bonds’ disposition. The trial court disagreed with the ex-wife and accepted the estate’s argument that upon divorce, the bonds’ POD designation was presumptively revoked pursuant to N.J.S.A. 3B:3-14 (revoking disposition of property made by a divorced individual to his former spouse in a governing instrument). Accordingly, on April 23, 2021, the trial court granted summary judgment regarding the ex-wife’s claims and determined that there was an overpayment to the ex-wife in the amount of $16,864.40, “[w]hich still remain[ed] an open issue.”

Subsequently, the ex-wife moved for reconsideration of the summary judgment decision. During oral argument conducted on August 3, 2021, among other things, the ex-wife argued that the trial court “overlooked the plain language . . . in the agreement and incorrectly relied upon the federally preempted estate statutes to determine the distribution of the federal bond proceeds.” In that vein, the ex-wife asserted “[t]he bonds were not specifically included in the [DSA,]” which “preserved [her] rights to items that [were] expressly outside of the agreement,” and that “federal regulations would govern distribution of the bonds.” Based largely on the fact that there was no evidence of the late ex-husband’s intentions to maintain the ex-wife as the beneficiary of the U.S. savings bonds upon the divorce, the trial court affirmed its decision and rendered a final order on April 13, 2022, requiring the ex-wife to pay the estate $27,862.70, among other relief. Thereafter, the ex-wife filed an interlocutory appeal.

On appeal, the Appellate Division determined that the trial erred as a matter of law in concluding that the U.S. savings bonds should be credited towards the late ex-husband’s DSA obligation. Pursuant to federal regulations under 31 C.F.R. § 353.70(c)(1), as a designated beneficiary, the ex-wife became the sole owner of the bonds upon the ex-husband’s death, and she was entitled to payment as the sole owner. In the absence of any allegation of fraud or breach of trust, neither of which was present in this case, the Appellate Division determined that the trial court’s application of N.J.S.A. 3B:3-14, which allowed the ex-husband’s estate to improperly avoid the consequences of the bonds’ beneficiary registration, conflicts with the governing federal regulations and is, therefore, preempted. In that vein, the Appellate Division noted that “[t]he Department of the Treasury will recognize a divorce decree that ratifies or confirms a property settlement agreement disposing of bonds or that otherwise settles the interests of the parties in a bond;” however, additional steps are necessary in order to confirm a registration modification with respect to bonds. Specifically, the Appellate Division discussed that to eliminate a beneficiary designation on a bond, federal regulations require the owner to surrender the bond to an authorized agent and submit a request for reissue using specified”[s]ervice forms.” §§ 353.51, 353.47(c)(3). Likewise, the submission of certified documents to establish the divorce decree’s validity is also required. Id.; §§ 353.22, 353.23. Upon satisfaction of those provisions, “[r]eissue of a savings bond may be made to eliminate . . . or to substitute the name of one spouse for that of the other spouse as owner, co[-]owner, or beneficiary pursuant to the decree.” Id. § 353.22(a). As the late ex-husband did not complete the aforesaid steps in order to confirm a beneficiary modification under federal law, the ex-wife remained the sole owner of the bonds.

In addition, the Appellate Division determined that nothing in the parties’ DSA warranted a contrary conclusion. In fact, the Appellate Division noted that the ex-wife’s rights to the bonds were protected under the plain terms of the DSA, which stated that the ex-wife “will not waive, release[], and relinquish[] any actual or potential right, claim, or cause of action against the other party, including but not limited to asserting a claim against the estate of the other party or to act as a personal representative of that estate, except as otherwise provided in this agreement or arising hereunder.” In accordance with that waiver language, because the bonds had not been addressed in the DSA, the Appellate Division concluded that the ex-wife did not “release” or “waive” her rights to the bonds.

Observation: When federal law pre-empts state law resulting in the law triumphing over equity in the Chancery Division, the results always seem wrong. Here, there was little evidence to show that the ex-husband intended his ex-wife to benefit from the Savings Bonds. The DSA was pretty clear that the ex-husband was keeping all assets in return for a lump sum amount owed to the ex-wife. However, when federal law pre-empted the matter, there was little the Court could do to avoid an unjust result. Nor is it practical to think that a DSA should specifically name every asset of the marriage a spouse is keeping. So now that we know that in addition to advising clients to revise 401(k), IRA, and pension beneficiary designations, etc., clients who own U.S. Savings Bonds should be advised to change their designated beneficiary if their ex-spouse is the beneficiary who gave up all rights to the bonds upon divorce.

E.W. v. W.M.-H., 476 N.J. Super. 433 (Ch. Div. 2023)

Issue: Are all reporters to DCPP entitled to statutory immunity under N.J.S.A. 9:6-8.13?

Holding: No. In the context of domestic violence, if the Court determines that the defendant made a complaint to DCPP primarily for the purpose of harassing the plaintiff, the defendant is not entitled to statutory immunity because allowing children to be weaponized against their parents does not further the legislative purpose of the immunity statute, which is to protect children.

Discussion: The parties were in a brief dating relationship that lasted approximately one month and no children were born of the relationship. During their relationship, E.W. (hereinafter “the plaintiff”) claims that she was swindled into paying W.M-H (hereinafter “the defendant”) tens of thousands of dollars, in part, because the defendant purported to be a government assassin. Shortly after their relationship ended, the plaintiff filed criminal and civil actions against the defendant in an effort to reclaim the monies paid to him during their relationship. The day after the defendant was served with the civil complaint, DCPP commenced an investigation into the plaintiff based upon an anonymous report that the plaintiff was smoking marijuana in front of her daughter (who is not the defendant’s daughter). Believing that the defendant made a retaliatory complaint to DCPP against her, the plaintiff sought and obtained a temporary restraining order against the defendant for harassment.

During the final restraining order hearing, the defendant denied that he made the anonymous call to DCPP and claimed that many other individuals were aware of the plaintiff’s recreational use of marijuana. Meanwhile, the plaintiff testified that the defendant was motivated to make the report and claimed that the defendant previously threatened to file a DCPP complaint against her if she tried to seek replevin of the monies paid to him. Although there was no direct evidence as to the person responsible for the DCPP complaint, the trial court found the plaintiff’s testimony to be more credible than the defendant’s testimony, especially given the timing of the report to DCPP. The trial court also determined that while there may be some truth as to the plaintiff’s marijuana usage, the circumstantial evidence demonstrated that the defendant primarily made contact with DCPP to harass the plaintiff and specifically with the purpose to alarm or seriously annoy her in retaliation for the criminal and civil actions initiated against him.

After determining that the defendant made the DCPP referral as a form of harassment, the trial court analyzed whether the defendant was entitled to immunity under N.J.S.A. 9:6-8.13, which, in relevant part, provides, “[a]nyone acting pursuant to this act in the making of a report under this act shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed.” Although the trial court broadly interpreted the language of the aforesaid statute to mean that there is no good faith requirement in order for a referral to DCPP to be immunized, the trial court determined that the applications of the immunity statute and the Prevention of Domestic Violence Act (hereinafter “PDVA”) must be “harmonized.” In that regard, the trial court considered that there is a credible theoretical argument that a policy choice was made to protect children over victims of domestic violence in granting immunity to “anyone” reporting to DCPP, but the trial court ultimately determined that it could not find any support in the legislative history of the immunity statute for that proposition. Moreover, the trial court determined that the PDVA was created to protect both victims of domestic violence and their children from exposure to said violence, and that applying the immunity statute in the context of domestic violence would legalize the weaponization of DCPP referrals as a mechanism of harassment, which would further victimize children as being exposed to such acts of domestic violence. Thus, the trial court ruled that applying the immunity statute under these circumstances would contravene not only the PDVA, but also the underlying purpose of the immunity statute itself by putting children at risk of being exposed to harassment, and thus domestic violence, by DCPP referrals. Accordingly, the trial court ruled that the defendant did not have immunity for his harassing conduct and, therefore, the first prong of Silver was satisfied.

Next, the trial court analyzed whether there was a need for a final restraining order under the second prong of Silver. In this regard the trial court noted that there was no evidence of a history of domestic violence between the parties during their short-term dating relationship. In addition, the trial court determined that there was no evidence that the plaintiff was at risk of immediate danger to her person and property, noting that she was pursuing the appropriate legal channels in the civil division to secure the return of the funds that she provided to the defendant. The trial court further noted that, with the exception of the replevin litigation, the parties had not been in contact with one another and would have no reason to be in contact in the future following the conclusion of the civil litigation. Accordingly, the trial court ruled that, in viewing the totality of the circumstances, the plaintiff did not have a need for a final restraining order and, thereafter, dismissed the temporary restraining order.

Observation: While no FRO was entered here, this is nevertheless an important case for family law practitioners. It is not uncommon for family litigants to file bogus DCPP referrals for purposes of harassing or punishing the other party. This Chancery Division Opinion from Essex County makes clear that the general immunity for persons who make referrals of DCPP matters, does not act as a defense in a domestic violence case where a person uses a DCPP referral as a means to harass another. Keep in mind that the Court did not pierce the shield of confidentiality which persons making a DCPP referral hold. Rather, the Court concluded that the defendant made the referral based on circumstantial evidence.

In the end, the Court did not grant an FRO because the victim could not establish the need for protection in the future. But what if those baseless DCPP referrals are repeated, akin to the disturbing practice now happening in society called “swatting” (i.e. deceiving an emergency service into sending police or emergency service response to another person’s address). Would that not be enough to meet the second prong of Silver?