The Anniversary of Hinfey v. Matawan Regional Bd. of Educ.

As the role of administrative agencies has grown, it has happened that more than one agency has, or arguably has, jurisdiction over the same matter.  How is it determined which agency should act?  On this date in 1978, the Supreme Court decided Hinfey v. Matawan Regional Bd. of Educ., 77 N.J. 514 (1978), which addressed […]

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Ensure a Successful Estate Plan: “Prepare for Tomorrow by Acting Today”

Stark & Stark Shareholder Robert F. Morris, member of the firm’s Trusts & Estates Group, will be hosting the free seminar “Prepare for Tomorrow By Acting Today: Tips for Ensuring a Successful Estate Plan.” This seminar will be held from 7:00 – 8:00 PM on Tuesday, September 15, 2015 at the Princeton Elks Lodge #2129, 354 Route 518, Blawenburg, New Jersey 08504.
The seminar will outline how individuals can make sure their estate plan is adequate to protect their family’s financial security. Rob will discuss topics including estate planning strategies, gift and death taxes, credit shelters, estate planning under a will or revocable trust, as well as inter vivos trusts.
Limited space is available for each session and pre-registration is mandatory. Attendees can RSVP to Sarah Ryan by calling 609.895.7246 or emailing sryan@stark-stark.com.


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New Guidelines for Emergent Applications in the Appellate Division

In a Notice to the Bar issued today, which is available here, Judge Messano announced new guidelines for emergent applications in the Appellate Division.  Those guidelines will take effect on September 14, 2015.  There will also be a revised Application for Permission to File Emergent Motion, which is the document that is used to initiate […]

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TRIAL COURT FOUND TO HAVE DENIED DUE PROCESS RIGHTS TO PRO SE LITIGANT IN DOMESTIC VIOLENCE MATTER

Law is never easy.  Practicing law can be even less so.  How about going it on your own without an attorney?  Not everyone may know that a “pro se” litigant acting on his or her own behalf is expected to know all of the rules and law that apply to their given case.  However, going through the process of litigation, let alone appearing in court and proceeding through a trial, can be overwhelming for even the most knowledgeable of self-represented litigants (not to mention some licensed attorneys).

What happens, then, in a case where the self-represented litigant is denied the ability to question a witness and present his case?  That was the scenario in C.H. v. J.S., a newly unpublished (not precedential) decision from the Appellate Division where a final restraining order entered against a defendant in a domestic violence matter was vacated due to a lack of sufficient evidence and based on a finding that the “procedures employed at trial deprived defendant of fundamental due process.”

The known facts are sparse.  The plaintiff asked for a final restraining order based on her alleging that defendant (her former dating partner) engaged in criminal harassment by sending plaintiff a series of “six or seven ranting text messages” calling her names and suggesting that he intended to post private videos of her on the Internet.  She further claimed that he had made such threats before, wanted to end the conduct and, when questioned by the trial judge during the final hearing, indicated that “once something goes on the Internet it doesn’t come off the Internet.”

The judge asked the defendant if he had any questions for the plaintiff, to which the defendant responded to the effect that he did not know.  The judge then asked the defendant if he disputed having the alleged conversation with the plaintiff and sending the subject emails, to which defendant responded that he was hurt by the plaintiff breaking up with him a third time, said things he didn’t mean, but that she knew he would never do such things to her.  The judge then ended the hearing, deemed the defendant’s response to his question an admission of harassment, and implemented the final restraining order.

Notably, while the trial judge was detailing on the record the provisions of the FRO, the defendant objected and indicated that he was unable to ask several questions that he had (to which the judge responded such questions could be posed after the Order was issued), and that he was unable to cross-examine the plaintiff as to her allegations and his defenses.

On appeal, the Appellate Division first concluded that there was insufficient evidence that the defendant had committed an act of criminal harassment and, more specifically, that he had a purpose to harass the plaintiff.  It is at that point where the decision gets interesting, as the Appellate Division strongly concluded that the defendant was denied his fundamental due process rights by what transpired:

Even more important, we conclude defendant’s fundamental rights to be heard were trampled by the hearing procedures employed. A litigant in civil proceedings is entitled to a fair hearing, imbued with the protections of due process. See A.B. v. Y.Z., 184 N.J. 599, 604 (2005); H.E.S. v. J.C.S., 175 N.J. 309, 321-23 (2003).  The due process guarantee expressed in the Fourteenth Amendment to the United States Constitution requires assurance of fundamental fairness during legal proceedings. U.S. Const. amend. XIV, § 1. This includes the opportunity to be heard and requires “procedural safeguards including the right to cross-examine adverse witnesses and the right to call witnesses . . . .” Peterson v. Peterson, 374 N.J. Super. 116, 124 (App. Div. 2005).

It is clear from this hearing transcript defendant was not given the chance to meaningfully respond to plaintiff’s allegations and was never permitted to present evidence, including witnesses or documents he believed supported his defense.  Rather, the judge concluded the hearing when he understood defendant’s response amounted to an admission that satisfied plaintiff’s elements of proof.

We recognize these matters are summary in nature, which may be accompanied by some relaxation of formal trial procedures, such as requiring a party to stand when addressing the court or requiring witnesses to take the stand. We are also aware of the limited need of trial judges to aid the trial process by initiating examination. However, we will not condone the relaxation in trial formalities that deprive due process.

Many litigants who come before our courts in domestic violence proceedings are unrepresented by counsel; many are unfamiliar with the courts and with their rights. Sifting through their testimony requires a high degree of patience and care. The pressures of heavy calendars and volatile proceedings may impede the court’s willingness to afford much leeway to a party whose testimony may seem disjointed or irrelevant. But the rights of the parties to a full and fair hearing are paramount.

[M.D.F., supra, 207 N.J. at 481.]

Defendant was not afforded a “full and fair hearing,” which must be provided before entry of something as serious as a final restraining order. The July 9, 2014 order must be vacated.

The Court’s findings and conclusions as to due process were in the context of a domestic violence matter, but are not limited to that type of matter.  While self-represented litigants are, thus, expected to know the law, rules and procedure that apply to their matter, this decision guides trial courts and practitioners to ensure that such procedures are properly followed and notions of due process maintained in all types of litigation.

____________________________________________________

Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group. Robert practices throughout New Jersey and is based in the firm’s Roseland, New Jersey office.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

Connect with Robert:  

 

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Pennsylvania Rule Waiving Bar Exam Requirement for Admission Only for Attorneys Licensed in Jurisdictions That Offer Reciprocity to Pennsylvania Attorneys is Constitutional

National Ass’n for the Advancement of Multijurisdiction Practice (NAAMP) v. Castille, ___ F.3d ___ (3d Cir. 2015).  For many years, New Jersey has not offered “reciprocity” to allow attorneys licensed in other jurisdictions to become members of the New Jersey Bar without taking the Bar examination.  As a result, other jurisdictions will not provide reciprocity […]

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Grandparent Visitation Revisited

Children of divorce are sometimes caught in the thorny legal thicket of “grandparent visitation.” No one wants to deny a child the benefits of having a good relationship with their grandparents. However, the situation is made more complicated by the right of a parent to raise their child or children as he or she sees fit, and one of those rights may include which may include limiting or prohibiting grandparent visitation.

New Jersey courts approach such cases with strong deference to the parent—in layman’s terms, this means that there is no level playing field between parents and grandparents from the courts’ perspectives. In fact, in order to succeed over an objection of a child’s custodial parent, a grandparent must prove by a preponderance of the evidence that the grandchild or grandchildren would suffer particularized harm in the absence of such visitation. Thus, grandparents must first make “a clear and specific allegation of concrete harm… significant enough to justify State intervention in the parent-child relationship” whereas “mere general and conclusory allegations of harm are insufficient.”

This heightened legal requirement is intended “to avoid imposing an unnecessary and unconstitutional burden on fit parents who are exercising their judgment concerning the raising of their children;” see Moriarty v. Brandt, which was decided by the N.J Supreme Court in 2003, and Daniels v. Daniels, an Appellate Division decision in 2005.

In the recently-decided case of Loser v. Witt, the Appellate Division was again called upon as the result of an appeal by Mr. and Mrs. Loser from the trial court’s dismissal of their complaint for grandparent visitation. Although Mr. and Ms. Witt were no longer a couple, they were united in opposing the Loser’s request.

While the trial Judge concluded that the Losers had “good bond” with the children, they “failed to meet the required threshold showing of particularized harm to subject the parents and children to further litigation.” Accordingly, the Judge deferred to the Witts’ “joint decision that is was in the best interests of their children to stop visitation.” It was from this determination that Mr. and Mrs. Loser appealed.

In affirming the trial court’s decision, the appellate panel cited Moriarty and Daniels above and concluded that the Loser’s Complaint failed to “allege any unusual circumstances that would likely give rise to particular harm from denial of visitation,” and that since the parents were fit, they had the constitutional right to successfully oppose grandparent visitation in the circumstances.

Whether you agree or disagree with the above rulings, New Jersey law is clear that grandparents who seek visitation over the objection of fit parents will continue to have a high wall to climb. This is not to suggest that the legal burden cannot be overcome, but to recognize that grandparents must be able to show the likelihood of “particularized harm” to a grandchild in order to proceed and in some cases prevail.

If you or someone you know is involved in a grandparent visitation dispute, it is recommended that you consult with experienced legal counsel to assist in the matter.

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Another New Jersey Sports Gambling Law Bites the Dust

National Collegiate Athletic Ass’n v. Governor of the State of New Jersey, ___ F.3d ___ (3d Cir. 2015).  In 2012, in an effort to aid Atlantic City, New Jersey passed the Sports Wagering Act, N.J.S.A. 5:12A-1 et seq.  That law permitted gambling on sports, which previously had been banned by statute and by the New […]

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The Importance of Cohabitation Agreements

In today’s society, many couples choose to live together rather than get married. This growing trend has become more common in recent years than ever before. There are a variety of possible reasons why couples choose to live together rather than get married. One factor that is likely considered is the complex legal proceedings that will occur if the couple was to get divorced. Couples that cohabitate would rather make it simple and just be able to move out rather than go through a formal divorce.

However, while cohabitating couples may think they are simplifying their lives, legally, it is important to note that they are given none of the legal protections of married couples. This is especially true in New Jersey, as common law marriages are not recognized, so cohabitating couples are actually doing themselves a disservice by not seeking out the legal protection offered in marriage. Some of the rights that unmarried but cohabitating couples lose out on include the protections provided by divorce laws, the right to make medical decisions for their partner, inheritance laws, survivor’s benefits as well as many others.

Cohabitating couples who decide to part often encounter issues and conflicts regarding the title and division of property purchased together, joint bank accounts they may have established, loans taken out together, gifts given between the parties and child custody and child support payments for children that were born of the relationship.

There is a simple solution that cohabitating couples can pursue to create legal rights for themselves: a cohabitation agreement. Similar to prenuptial agreements made prior to the marriage and settlement agreements reached during a divorce, a cohabitation agreement is a written legal document reached between a couple who have chosen to live together but are not legally married.

This sort of agreement provides a way for a currently cohabitating couple to protect themselves from future unnecessary costs and litigation should their cohabitation end. Furthermore, it allows for the parties to clearly indentify and safeguard their individual property, as well as indicate certain other rights they wish to maintain if they are to separate.

While there is no direct law in New Jersey in connection with legal rights resulting from cohabitation, a cohabitation agreement creates a contractual obligation between the two parties. This then creates legal rights that might not be otherwise automatically recognized by the state.

There are a variety of topics that a cohabitation agreement can cover, such as:

• The possibility of palimony being paid should the couple break up
• The division of real property
• The designation of jointly owned property in the event that one partner may die
• Medical decisions
• Individual contribution to household bills
• Custody and child support
• Inheritance rights of one partner if the other partner should die
• The designation of one partner on the other partner’s insurance policy

A cohabitation agreement is a very specific and personal document, and can be used to address a wide variety of topics beyond those just mentioned. It is highly recommended that any couple currently cohabitating or thinking about cohabitation consult with an attorney to draft a cohabitation agreement.

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Debtor Does Not Get a Free House After All

On February 2, 2015, the New Jersey Law Journal published my article discussing the Bankruptcy Court decision of In re Washington, Case No. 14-14573 (Bankr. D.N.J. Nov. 5, 2014), where the Bankruptcy Court held that under New Jersey law, a mortgage holder is time-barred from foreclosing on a residential mortgage if the complaint is not filed within six years of the date the mortgage loan was accelerated by the mortgagee.

On August 11, 2015, the United States District Court for the District of New Jersey reversed the decision, holding that the claim is time barred twenty years from the date of default. As a result, the mortgage is still valid and must be paid by the mortgagor.

The District Court looked to several recent state court cases (all unpublished) and the plain meaning of the statute in question. In May 2015, two Chancery Division Judges (Morris County and Hudson County) did not follow the Washington decision. The Judges disagreed with the Bankruptcy Court’s interpretation of N.J.S.A. § 2A:50-56.1.

The District Court followed the reasoning of the state court judges and found that the acceleration of a residential mortgage upon default does not accelerate the maturity date of the mortgage loan, since the maturity date is generally a specified date in the mortgage document (ie. date for last payment). Without a change in the maturity date, the District Court found that the twenty year statute of limitations was applicable to the facts before the Court.

It is too early to tell if the debtor will appeal to the Third Circuit Court of Appeals. If an appeal is filed, we will monitor and report on the case.

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Homeowners Association Can be Liable for Injuries on Sidewalks Owned and Controlled by Such Associations

Qian v. Toll Brothers, Inc.., ___ N.J. ___ (2015).  In Luchejko v. City of Hoboken, 207 N.J. 191 (2011), discussed here, the Supreme Court ruled that a condominium association was not liable to a person who was injured after falling on a public sidewalk that adjoined the residential condominium community.  The issue in this case […]

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Making a Claim against a Payment Bond Posted by a General Contractor or Sub-Contractor

In construction projects that are performed either on behalf of a municipality or a state agency, a general contractor and potentially a sub-contractor are typically required to post payment and/or performance bonds with the county or municipality. A general contractor or sub-contractor is required to post a payment and/or performance bond, because this ensures that sub-contractors or suppliers are paid, and enables the Township or state agency to have the work completed should the contractor fail to do so in a timely fashion. As a supplier or sub-contractor on such a municipal or state project, it is important to know your rights with regard to making a claim against a payment bond.

The most important thing that any sub-contractor or supplier must do prior to providing materials or services for a public contract is to provide the proper notice as required by N.J.S.A. 2A.44-145. This strict notice requirement specifies that the sub-contractor or supplier notify the party who posted the payment bond for the project in writing via certified mail of their intent to provide materials or services for the project. This is a prerequisite to being able to make a claim against the bond, or to receive a payment for materials and services with regard to the project if they are not paid by the sub-contractor or general contractor. As such, it is very important that any sub-contractor or supplier provide the appropriate notice to the party that posted the bond prior to performing any work or providing any materials.

If proper notification has been sent and a sub-contractor or supplier did not receive payment for materials or services provided, they may make a claim against the bond posted by the general contractor or the sub-contractor. It is always suggested that a sub-contractor or supplier obtain a copy of the bond posted by the general contractor or sub-contractor before providing materials or services. This is to ensure that any claim against the bond is made in a timely manner and is not forfeited by failing to comply with the terms of the bond, which require that a claim be made within a certain specified period of time.

Assuming that you have complied with the time requirements of the bond, a sub-contractor or supplier would first send a Notice of Demand for Payment to the bonding company with a copy to the contractor who posted the bond. Typically, the bonding company will require the production of any and all documents which justify the payment sought by the claimant that was not tendered by the sub-contractor or general contractor. Upon receipt of this information, the bonding company will make a determination whether payment is due for the materials and services which were provided.

If the bonding company denies payment, then a claim may still be brought against the bond. A law suit may also be filed against the general contractor or sub-contractor who supplied the bond as well. Due to the technical nature of this process, it is important that a party consult with an attorney. Stark & Stark can offer these types of services whenever a sub-contractor or supplier is faced with this scenario.

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What is an “Agenda”? Perhaps the Supreme Court Should Tell Us

Opderbeck v. Midland Park Bd. of Educ., ___ N.J. Super. ___ (App. Div. 2015).  The Open Public Meetings Act, N.J.S.A. 10:4-6 to -21 (“OPMA”), adopted in 1975, requires advance notice to the public of the “agenda, to the extent known” for a meeting of a public body covered by the OPMA.  In this case, the […]

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Estate Planning Seminar September 17, 2015 6PM

The Supreme Court Sends a Difficult Child Abuse Case Back to the Office of Administrative Law

Department of Children & Families v. E.D.-O., ___ N.J. ___ (2015).  Child abuse and neglect cases are often heartbreaking.  Branding a parent as abusive and neglectful is a hard step to take, but is sometimes necessary to protect the child.  Such cases make their way to the Supreme Court only in relatively unusual circumstances, as […]

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Chapter 91 Update: Time to Address the Mailing

What happens when the tax assessor mails a Chapter 91 request to the address maintained on the assessor’s public records, but the request is returned “unclaimed”? Is the assessor required to conduct any type of investigation to determine if the address is correct, or can the tax assessor rely solely on his or her records? Recently, the New Jersey Tax Court had an opportunity to review these issues in First Growth Plaza, LLC v. Borough of Raritan.

The Tax Court ultimately found that a tax assessor may rely upon its public records in sending out Chapter 91 requests and an “unclaimed” envelope will not defeat a motion to dismiss a tax appeal when the tax assessor relied upon his or her tax list when addressing the envelope. The Tax Court held that a tax assessor is not required to investigate the address of an unclaimed certified mailing. On the contrary, the Tax Court found that it is incumbent on the property owner to ensure that any change in the owner’s address is properly recorded with the assessor.

Property owners must be diligent in making certain that a tax assessor has a good address to mail notices and tax bills. Generally, the assessor will use the address set forth on a deed when updating a tax list after the sale of a parcel of property. That being said, this is not always the best address for the company.

More importantly, if a company merges, changes management companies or accountants or relocates, it must be diligent and send a formal change of address notice to the tax assessor if tax bills and notices need to be sent to a new address.

For any questions regarding this decision, it is recommended that you speak with experienced counsel.

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Discrimination in the Workplace: You Have a Right to Pump Breastmilk

Gender-based Discrimination in the Workplace is Illegal: You Have a Right to Pump Breastmilk

Stark & Stark Attorneys Recognized in 2016 “The Best Lawyers in America” Rankings

Best Lawyers announced the 2016 “The Best Lawyers in America” rankings, and 18 Stark & Stark attorneys have been named, for practice areas that include bankruptcy and creditor debtor rights, commercial litigation, corporate law, family law, bankruptcy litigation, construction litigation, trusts and estates litigation, personal injury litigation for both defendants and plaintiffs, real estate law, trusts and estates and workers’ compensation law.

Rankings for Best Lawyers are based on a rigorous evaluation process that is strongly rooted in peer-review, following an analysis of the feedback from Best Lawyers and a final eligibility check for all nominees. Attorneys can be nominated by anyone other than themselves.

For reference, here is the full list of Stark & Stark attorneys, along with their practice areas, that have made “The Best Lawyers in America” rankings:

Lawyer Name	Specialty
Timothy P. Duggan	Bankruptcy & Creditor Debtor Rights/Insolvency & Reorganization Law
Kevin M. Hart	Commercial Litigation
Lewis J. Pepperman	Commercial Litigation
Allen M. Silk	Corporate Law
John S. Eory	Family Law
Maria P. Imbalzano	Family Law
Timothy P. Duggan	Litigation – Bankruptcy
Donald B. Brenner	Litigation – Construction
Thomas J. Pryor	Litigation – Construction
Lewis J. Pepperman	Litigation – Trusts and Estates
John A. Sakson	Personal Injury Litigation – Plaintiffs and Defendants
Albert M. Stark	Personal Injury Litigation – Plaintiffs
Bruce H. Stern	Personal Injury Litigation – Plaintiffs
Gary S. Forshner	Real Estate Law
Daniel L. Haggerty	Real Estate Law
Steven L. Friedman	Trusts and Estates
Vicki W. Beyer	Workers’ Compensation Law – Claimants
Arthur H. Kravitz	Workers’ Compensation Law – Claimants

 

For more information about the Best Lawyers selection process, please click here.

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A Rebuttal on Equitable Mootness

In re Tribune Media Company, ___ F.3d ___ (3d Cir. 2015).  Roughly one month ago, Judge Krause authored a powerful concurring opinion in In re One2One Communications, LLC, ___ F.3d ___ (3d Cir. July 21, 2015), that criticized the bankruptcy doctrine of equitable mootness and advocated that it be reevaluated or even discarded.  That opinion […]

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Are Injured Workers Becoming Addicted to Prescriptions

Are Doctors Over Prescribing Pain Medication to Injured Workers?

Website on Preventing Sexual Assault to Launch

USDOJ Announces New Website Addressing Sexual Assault, Domestic Violence, Dating Violence and Stalking on Campus

Exposing Children to New Dating Partners

One of the most difficult issues that can occur in divorce cases involves the exposure of the child or children to a parent’s new girlfriend or boyfriend. In legal parlance, limitations on such contact are known as “DeVita” restraints, named after a 1976 decision which held that exposure of the parties’ child to Mr. DeVita’s new girlfriend on an overnight basis endangered the child’s moral welfare. Since this decision, the DeVita case has been routinely cited by family law attorneys.

This landscape was recently altered by the Hon. Lawrence R. Jones, J.S.C., in the case of Mantle v. Mantle, where Judge Jones was faced with the enforceability of a consent agreement between divorced parents which prohibited contact between their child and the dating partner of either parent. Significantly, the agreement contained no expiration or review date. When Ms. Mantle sought to enforce the agreement, Mr. Mantle objected on the basis that she was trying to alienate the child from him and denied the allegation that he had ever “slept” with his girlfriend in the child’s presence. He did not deny, however, that he was allowing contact between the child and his girlfriend.

In denying Ms. Mantle’s application, Judge Jones revisited DeVita and determined that the rationale employed by the court in 1976 –i.e., that having one’s dating partner stay overnight was “contrary to a substantial body of the community”—was no longer applicable today.

In place of this premise, Judge Jones held that while a court should always remain cautious concerning the motives of the parents in such cases, the controlling principle must be the impact on the child in question. In other words, some cases may warrant restraints while others may not. Moreover, even if restraints are ordered, they should be periodically reviewed to determine if they should be continued, relaxed or vacated. Judge Jones’ well-reasoned opinion will prove invaluable to judges, family law attorneys and divorcing parents going forward.

For questions of how this decision may affect you, or questions related to divorce proceedings, please contact experienced counsel.

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WHO’S YOUR DADDY?

In a recent case, Passaic County Board of Social Services on Behalf of T.M. v. A.S., the New Jersey Family Court encountered a unique set of facts.  A mother of two twin girls sought to establish the paternity of her daughters in order that the father would be obligated to commence paying child support.  She named the defendant, A.S., as the father and he submitted to DNA testing.  As it turned out, the DNA test established that A.S. was the father to only one of the twin girls.  The twins had been fathered by two different people, known as “bipaternal twins,” a rare medical phenomenon.

I think most people would agree that the DNA result in this case merits a “huh?” and Judge Mohammed, who rendered the decision in this case, thought so too.   In general, the court observed, the DNA testing process is scientifically sound and very reliable.  However, Judge Mohammed also recognized that under the law, the results of genetic testing create a rebuttable presumption as to paternity.  In other words, even if a DNA test says John Doe is the father, John Doe can still try to disprove those results.  But how do you argue with science?  And should you?

As to the first question, Judge Mohammed’s opinion indicates that you argue with science by questioning the standards and methods used by the DNA specimen collection facility and the testing lab.   Maybe someone along that chain of custody messed up, or maybe the procedures employed by the collection facility or lab are not sound.  Focusing on the sampling, handling, processing, and analysis of DNA, Judge Mohammed set forth several factors to consider when one party questions DNA testing results, as follows:

1) The methods employed and conditions under which the DNA specimen was obtained;

2)  The training, skill, and judgment of DNA handlers;

3)  Whether adequate procedures were in place for specimen collection, storage, transportation, sampling, handling and processing of DNA tests;

4)  “Chain of custody” considerations;

5)  Any evidence of tampering, hacking, user bias, or other external interference calling into question the integrity of the test result;

6)  Whether the testing laboratory adhered to scientifically acceptable, reliable, and established DNA testing and methodology standards;

7)  The ability of the handlers to replicate test results submitted to the court; and

8)  Access to and handling of information regarding abnormal or irregular results, or those collected in error.

If the standards and practices of the collection facility and the lab are sound, and there was no departure from those standards and practices, then the DNA test must be considered reliable evidence.  But maybe the collection facility contaminated the sample, or maybe the lab did not properly store the sample.  Then there might be a good reason for the court to decline to rely on a particular DNA test.

As to the second question – whether you should argue with a DNA test or not – Judge Mohammed seems to say that, yes you should – but only if the results are cause for a double take.  Generally speaking, Judge Mohammed writes, “a medical or scientific innovation or rarity should not create judicial uncertainty.” In other words, people should trust the results of a DNA test, and if they don’t, then the Court should question the methods used by applying the eight factors listed above.  As Judge Mohammed eloquently put it in the context of the case,

“Given the rarity of this medically acceptable phenomena, coupled with the general public’s lack of awareness, it is not unreasonable to expect that when one is confronted with the DNA test results that show each twin in a given case has a different father, an overwhelming majority will likely express sheer disbelief.  This in turn will give rise to lack of confidence in the results.  One may begin to question whether DNA is truly a valid indicator or “snapshot” of one’s identity.”

And in the context of family law cases – specifically, paternity issues – questioning a curious DNA result will be critical to the child at issue.  As Judge Mohammed emphasized, courts across the country, including New Jersey, “have recognized the profound right of a child to know the identity of his or her parents.”  Our courts have recognized a child’s right to feel “rooted” and know his or her true origins, not only for psychological and emotional reasons, but also for the purpose of medical treatment and genealogical history.  It is the court’s job to ensure that the best interests of the child are served, and it is also the court’s duty to act as gate-keeper of evidence.  The court must question the reliability of DNA testing by evaluating the integrity and reliability of the test results rather than blindly accept DNA results that are cause for skepticism.

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Jessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

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2015 Omnibus Rule Amendment Order Contains One Appellate Rule Change

The Supreme Court has published its 2015 Omnibus Rule Amendment Order, which is available here.  That Order contains amendments to several dozen Court Rules and appendices, and also adds new rule provisions.  All of the new or amended rules are effective on September 1, 2015. Though changes to any Court Rule may affect appeals and […]

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Physician Who Was Retired at the Time of “the Occurrence That is the Basis for the Action” is Not “Statutorily Authorized to Testify” as an Expert in a Medical Malpractice Case

Medina v. Pitta, ___ N.J. Super. ___ (App. Div. 2015).  The New Jersey Medical Care Access and Responsibility and Patients First Act, N.J.S.A. 2A:53A-37 to -42 (“PFA”), “established enhanced qualification requirements for experts who provide testimony or execute [affidavits of merit] in medical malpractice cases.”  Even a witness who satisfies the qualifications prescribed by the […]

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The Third Circuit Upholds Class Certification in a Long-Running Case

In re Community Bank of Northern Virginia Mortgage Lending Practices Litigation, ___ F.3d ___ (3d Cir. 2015).  Every five years, the Third Circuit issues an opinion on class certification in this protracted class action case.  See In re Community Bank of Northern Virginia, 622 F.3d 275 (3d Cir. 2010); In re Community Bank of Northern […]

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Chapter 91 Update: Delivery of Response

In our July 23, 2015 blog, “Tax Appeals: The Silent Killer,” we suggested that property owners return their Chapter 91 response by certified mail or some other method that generates a receipt. The basis for this suggestion is several tax court decisions, including the case discussed in my December 5, 2011 blog and the recent case of 2 JFK Blvd v. Township of Franklin, docket no. 00578-2015 (Tax Court June 24, 2015).

In 2 JFK Blvd, the municipality moved to dismiss a tax appeal alleging the property owner did not respond to a Chapter 91 request. The property owner alleged that it did respond in a timely manner and produced a certification that set forth the date the response was mailed, the address where the response was mailed and enclosed a signed copy of the response. The tax assessor certified that he did not receive the response.

The Tax Court found both witnesses credible and each scenario plausible. The Tax Court also commented that both witnesses “kept records with respect to the question at issue,” which seems to have bolstered the credibility of the property owner and assessor. Based upon the record, the Tax Court denied the motion to dismiss the appeal since there was not “sufficient evidence of non-compliance” by the property owner.

Sending the response by certified mail, overnight mail or hand delivery, provides a property owner with proof of service of his or her response and can help avoid a costly battle at the outset of an appeal.

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Be One of Our Blawg 100 Amici!

Every year, the ABA Journal invites nominations for its Blawg 100 list, a compilation of staff and reader “favorites” within the legal blogosphere. The rigorous selection process for the 2015 list has begun, with the magazine calling for recommendations from “Blawg Amici” – regular readers who wish to support and spread the word about their favorite legal blogs.

Here’s a sampling of posts from the past year:

• How To Divide an Island And Other Wedding Gift Questions
• Co-Parenting Calendars – I’m Not Your Secretary – Or Am I?
• Marry Her Anyway? No Matter What They Say? Well, It May End In Annulment Anyway
• Changing a Child’s Hair Color- Who Decides????
• What Do You Mean You Are Enforcing That Prenup That We Tore Up?!?
• Divorce Hotel – Paradise or Paradise Lost?

If you have enjoyed and valued our updates during the past year and believe the NJ Family Legal Blog deserves a spot in the top 100, we invite you to take a few moments to nominate us. The online nomination process is very quick – it shouldn’t take more than a minute or so.

Blawg Amici nominations will be accepted until 11:59 p.m. CT on August 16, 2015. Thank you in advance for your support!

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Jurisdictional Requirements of Child Support Modifications

A change in circumstances is a common occurrence in post divorce matters. The financial status of either divorcing party can easily change following a divorce. Considering that financial obligations, like child support, are calculated at the time of divorce, changes in financial status are especially impactful for those making the child support payments.

However, there is another factor to consider when attempting to modify child support payments:  the geographical location of the parties. Again, many things can change following a divorce—for example, either party can move from the state that initially granted the divorce. If that happens, it opens up a whole host of new questions. The foremost of which has to be, Which state should the party attempting to modify the child support payments file their petition? Choosing a state that has proper jurisdiction over a child support modification is critical because different states have different laws that could significantly affect what the revised payments are.

The Uniform Interstate Family Support Act (UIFSA) addresses this exact question and provides guidance as to which state has jurisdiction over the modification of child support payments. While a federal act, UIFSA has been codified by every state. For example, in New Jersey, N.J.S.A. 2A:4-30.72a provides that a State has continuing, exclusive jurisdiction over a child support order as long as the State remains the home of the obligor (the individual making the child support payments), the obligee (the individual receiving the child support payments) or the child who is the center of the child support order.

However, because the obligor and obligee, as well as the child can reside in different states, multiple states can technically have continuing exclusive jurisdiction. Now what happens? Per N.J.S.A. 2A:3-3074b(2), “if more than one of the tribunals would have continuing, exclusive jurisdiction under this act, an order issued by a tribunal in the current home state of the child shall be recognized, but if an order has not been issued in the current home state of the child, the order most recently issued controls and shall be recognized.”

Therefore, the home state of the child, and specifically whether an order regarding child support has been issued by that home state, is a critical fact. New Jersey courts have applied UIFSA in multiple scenarios, including Peace v. Peace. In Peace, Plaintiff and Defendant were married and had one child together. The parties originally resided in New Jersey with their child until they separated and Defendant husband relocated to Nevada. A formal child support order was entered in December 1987 in Atlantic County, New Jersey. After moving to Nevada, husband filed for and was granted a divorce in Nevada. Wife and child remained in New Jersey. In November 1998, Wife applied for an increase in child support. While New Jersey retained continuing, exclusive jurisdiction due to the fact that it was the state where both the obligee and child continue to reside, Nevada also issued an order (the divorce decree).

The court determined, “it appears that because both Nevada and New Jersey have issued an order and remain the residence of a party, each has continuing, exclusive jurisdiction, as defined by UIFSA.” Applying the section of UIFSA mentioned above, the Court noted that, “in this case, the child’s home state is New Jersey. Therefore, New Jersey is the state with the controlling order. Conversely, Nevada’s orders do not control…accordingly, any applications to modify Husband’s child support obligation must be pursued in the New Jersey court.”

Every post-divorce matter is different and you should consult your attorney to ensure that jurisdiction is proper before proceeding with any litigation.

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Redd v. Bowman: The Supreme Court Says That the Faulkner Act Initiative Proponents Must Start All Over Again

Redd v. Bowman, ___ N.J. ___ (2015).  In Redd v. Bowman, 433 N.J. Super. 178 (App. Div. 2013), discussed here, the Appellate Division held that an initiative petition with a proposed ordinance that would have undone the City of Camden’s decision to disband its police force and instead join a newly-created county police force did […]

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An Unusual Lineup in the Supreme Court

Ross v. Lowitz, ___ N.J. ___ (2015).  This case involved damage resulting from the migration of home heating oil from an underground storage tank on one property onto a neighboring property.  Plaintiffs, who had a contract to buy the property to which the oil migrated, cancelled the contract after learning of the contamination.  They sued […]

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Bankruptcy Considerations in Collection Actions

Understanding what can occur during a collection action can be vital in determining which accounts to pursue. One common occurrence is that a debtor files for bankruptcy.

There are two (2) types of consumer bankruptcy filings that may likely be encountered during a collection action. The first is a Chapter 7 Liquidation, meaning that the debtor is liquidating his/her assets. The second is a Chapter 13 Reorganization, in which the debtor proposes to pay creditors some of what creditors are owed over time (3-5 years.); the debtor will file a Chapter 13 Plan that sets forth how the debtor plans to do it.

The purpose of filing a bankruptcy is for the debtor to receive a discharge from personal liability for pre-petition debt (debt incurred prior to the date of the bankruptcy filing). The bankruptcy filing provides a stay of any collection actions against property of the debtor’s estate, including wage execution and bank levies.

Should you receive a bankruptcy notice, immediately stop all collection efforts. All communication with the debtor must be through their bankruptcy counsel.

A secured creditor can still pursue its secured property by getting bankruptcy court approval.  An order for relief from the automatic stay permits the creditor to pursue that property, i.e., through replevin action or foreclosure.

Another very important step to take in a Chapter 13 is for the creditor to file a Proof of Claim for any and all pre-petition amounts owed. This must be filed by a certain deadline established in each case, and it is vital that it not be missed.

Generally speaking, a Chapter 7 may take around 4-6 months from the Petition Date (date of filing) to discharge and case closure, while a Chapter 13 typically takes around 3-5 years from the Petition Date to discharge and case closure, unless the debtor does not make their plan payments, whereby the case would be dismissed.

Many things can occur during a collection and bankruptcy action; knowing how to navigate those occurrences will help business owners understand which accounts can be collected and when counsel needs to get involved, which ultimately will reduce unnecessary attorney fees and wasted time.

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Length of Marriage is Not Alone Dispositive as to Alimony

Gnall v. Gnall, ___ N.J. ___ (2015).  N.J.S.A. 2A:14-23(b) lists twelve factors, plus a “catch-all” thirteenth factor, that are to be considered in determining whether to award alimony.  One of those factors is “[t]he duration of the marriage or civil union.”  In this case, the couple had been married for fifteen years.  The Family Part […]

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J is for Justifying a Deviation from the Child Support Guidelines

Your lawyer has just told you what you are likely to receive for child support and your jaw has dropped because you know the amount comes nowhere near the actual cost of supporting the children. How then, do you get your soon-to-be ex-spouse to pay what you consider to be a fair amount for the children?

In a recent unreported decision, the court ordered an enhanced amount of child support ($50,000) but was then reversed on appeal because the judge failed to conduct an analysis and explain why he deviated from the formula which is used to calculate support for children.

Copyright: boykung / 123RF Stock Photo

In the vast majority of cases, child support is determined through the use of a formula known as the New Jersey Child Support Guidelines, which are found in Appendix IX-A of the Court Rules. This formula is a rebuttable presumption in both establishing and modifying all child support orders. Under the court rules, the Guidelines have to be applied in all matters whether contested or not. The court rules contain 53 pages of really small print explaining how they work. But generally, the idea is that each parent is responsible for a portion of the cost of raising children and the amount it costs to raise children is based on statistical averages throughout the state, depending on the parents’ combined income.

For cases in which the parents’ combined income is over the poverty line, and below $187,200 net, the guidelines apply, and the appropriate child support amount is applied to the case.  If the combined income is over that amount, then the Guidelines are applied, and an additional amount is added. The amount that is added is based on the remaining family income and the following factors:

(1) Needs of the child;

(2) Standard of living and economic circumstances of each parent;

(3) All sources of income and assets of each parent;

(4) Earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children including the cost of providing child care and the length of time and cost of each parent to obtain training or experience for appropriate employment;

(5) Need and capacity of the child for education, including higher education;

(6) Age and health of the child and each parent;

(7) Income, assets and earning ability of the child;

(8) Responsibility of the parents for the court-ordered support of others;

(9) Reasonable debts and liabilities of each child and parent; and

(10) Any other factors the court may deem relevant.

When a parent believes that the number under the Guidelines is inappropriate (even when income does not exceed $187,200), the court has discretion to deviate from that amount if circumstances exist such that the guidelines amount is unfair.  The court can take the following factors into consideration when deviating from the Guidelines:

(1) equitable distribution of property;

(2) income taxes;

(3) fixed direct payments (e.g. mortgage payments);

(4) unreimbursed medical/dental expenses for either parent;

(5) tuition for children (i.e. for private, parochial, or trade schools, or other secondary schools, or postsecondary education);

(6) educational expenses for either parent to improve earning capacity;

(7) single-family units (i.e. one household) having more than six children;

(8) cases involving voluntary placement of children in foster care;

(9) special needs of gifted or disabled children;

(10) ages of the children;

(11) hidden costs of caring for children such as reduced income, decreased career opportunities, loss of time to shop economically, or loss of saving;

(12) extraordinarily high income of a child (e.g. actors, trusts);

(13) substantiated financial obligations for elder care that existed before the filing of the support action;

(14) the tax advantages of paying for child health insurance;

(15) one obligor owing support to more than one family (e.g. multiple prior support orders);

(16) the motor vehicle purchased or leased for the intended primary use of this child subject to the support order;

(17) parties sharing equal parenting time; and

(18) overnight adjustment for multiple children with varying parenting time schedules.

This list is not exhaustive. There are several other reasons why the Guidelines can be deviated from.  The important thing is to build a case which addresses any and all reasons to deviate from the Guidelines-up or down.  When there are extenuating circumstances, it is critical to compile documents and information which substantiate the claim. While there is certainly no guarantee, the Perry case demonstrates that judges are willing to consider the issue, but have to be given the correct information.

Jennifer Weisberg Millner is a partner in Fox Rothschild LLP’s Family Law Practice Group. Jennifer is resident in the firm’s Princeton Office, although she practices throughout the state. Jennifer can be reached at 609-895-7612 or jmillner@foxrothschild.com.

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Social Security Disability Fund In Trouble

Congressional Inaction Endangers Social Security Disability Trust Fund

The Seventh Circuit Rejects Carrera Ascertainability, and Cites Judge Fisher With Approval

Regular readers of this blog have seen frequent criticism of the class action “ascertainability” doctrine espoused by Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013).  Recently, as discussed here, the Appellate Division in Daniels v. Hollister Co., ___ N.J. Super. ___ (App. Div. 2015), declined to import Carrera ascertainability into New Jersey state […]

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School Obligations to Prevent Sexual Assault

Studies Support Putting More Emphasis on Title IX Obligations of High Schools and Middle Schools