A Petition for Mandamus is Not an “Appeal”

In re Arunachalam, ___ F.3d ___ (3d Cir. 2016).  A pro se plaintiff in related patent infringement cases in the District of Delaware sought to disqualify the District Judge.  When that motion was denied, plaintiff filed a petition for a writ of mandamus with the Third Circuit.  Yesterday, however, the Third Circuit ruled in a […]

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NEW JERSEY EMANCIPATION STATUTE SIGNED BY GOVERNOR CHRISTIE

On Tuesday, January 19th, Governor Christie took a break from his busy presidential campaign to sign several new pieces of pending legislation, one of which was New Jersey’s pending emancipation statute that impacts upon child support and when/how it terminates.  The new law, which takes effect 180 days after its signing, is applicable to all child support orders issued prior to, or, or after its effective date.  Much of it codifies existing case law, but alters, in part, the prior rebuttable presumption that child support terminates when a child reaches age 18.  The language specifics and nuances will most certainly in a manner similar to the amended alimony law, future litigation over what such language means and how it should be applied.

With that said, let’s take a look at the important components of the new emancipation law and what it means:

Termination of Child Support

The law provides that, unless otherwise indicated in a court order or judgment, the obligation to pay child support shall terminate without order on the date a child – who is less than 19 years of age – marries, dies or enters into military service.

Child support shall also terminate when a child reaches 19 years of age unless:

1.  another age for such termination is specified in a court order;
2. the parties consent and the court approves the continuation of support until after a predetermined date; or
3. child support is extended by the court based on an application filed by a parent or the child prior to reaching age 19.

A parent or child may also seek the continuation of child support beyond 19 years of age under the following circumstances:

1.  the child is still enrolled in high school or other secondary program;
2. the child is participating full-time in a post-secondary education program;
3. the child has a physical or mental disability that existed prior to the child reaching the age of 19 and requires continued child support; or
4. other exceptional circumstances as may be approved by the court.

Interestingly, if a court orders the continuation of child support, it must also provide in the order “a future date upon which the child support obligation will terminate or a date upon which the court will review the circumstances of the parties and children.”

Matters involving child support obligations supervised by the Probation Division will require Probation (and the State IV-D agency) to provide both parents with at least one notice of proposed termination and instructions on how to seek a continuation of child support.  Such notice is to be provided no less than 90 days prior to the termination of support under the new law.

Unallocated Child Support for Two or More Children

The new law codifies that if there exists an unallocated (not specifying the amount for each child) child support order for two or more children and the obligation to pay for one child terminates, the existing support obligation shall continue until modified by court order.  Of course, this is no way prevents the parties from coming to a resolution of the issue to avoid the time and expense associated with litigation.

If the support for such children was allocated – rather than unallocated – and support for one terminates, the amount of child support for the remaining children shall be adjusted to reflect only the amount allotted for the remaining child/children.

Arrears Existing at Termination

If support arrears exist when support terminates under the new statute, such arrears will remain due and enforceable.  The new law provides how payment for such arrears will be made, as the “sum of the recurring child support obligation in effect immediately prior to the effective date of termination plus any arrears repayment obligation in effect immediately prior to the effective date of termination” unless otherwise ordered.

Impact on Foreign Support Orders

The new statute shall not apply to child support provisions contained in orders/judgments entered by a foreign jurisdiction and registered in New Jersey for modification or enforcement under the Uniform Interstate Family Support Act (“UIFSA”), or a law substantially similar to New Jersey’s prior Uniform Reciprocal Enforcement of Support Act (“URESA”).

Impact on Support While Child in College/Post-Secondary Educational Institution

The law unambiguously provides that it does not require or relieve a parent from paying “support or other costs while a child is enrolled full-time in a post-secondary education program.”

Important Miscellaneous Points

Any party may also still seek to terminate child support for any reason other than that provided in the new law.  Also, the law confirms that it does not “prohibit the parties from consenting to a specific termination date subject to the approval of the court.”  Prior language that did not make its way into the final law focused on utilizing “capped” age of 23 to terminate support, which is often found in settlement agreements as a sort of “catch all” provision as to when child support will end.  I have had adversaries argue to me – when, of course, it suits their client’s position – that using the age of 23 as a cap to end child support is unenforceable as against public policy.  The new law confirms, however, that such a cap could be enforceable, and that it – like any other agreed upon language regarding a support termination date – is subject to the court’s approval.   Hopefully that will limit litigation that can occur surrounding such provisions in a settlement agreement.  To that end, practitioners should also consider incorporating references to the new law in the emancipation portions of their settlement agreements.

__________________________________________________________

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

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*Photo courtesy of Google free images.

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Interlocutory vs. Final Administrative Agency Decisions

Silviera-Francisco v. Elizabeth Bd. of Educ., ___ N.J. ___ (2016).  “Whether a trial court order is final or interlocutory has bedeviled courts and attorneys for decades.”  So said Judge Cuff in her opinion for the Court today in this matter, a 6-0 ruling.  The issue here, though, was whether a decision of an administrative agency […]

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Can Artwork Affect My Estate?

A recent Tax Court case highlights some of the issues faced by estates that own valuable artwork and the need to account for artwork as part of estate planning and estate administration. Artwork is an important aspect of estate planning and administration because artwork can affect the estate’s overall value, and can result in substantial estate or inheritance taxes. Artwork is a non-revenue producing asset that can make financing taxes more challenging, particularly when there is no advanced planning. Valuable artwork is subject to substantial changes in value, depending on market conditions.

This case involved a dispute over the value of fine artwork owned by a sophisticated art collector. The Estate owned three exquisite and valuable paintings: (1) “Tĕte de Femme (Jacqueline)” by Pablo Picasso; (2) an untitled piece by Robert Motherwell; and (3) “Elément Bleu XV” by Jean Dubuffet. The Picasso was by far the most valuable, selling at auction in 2010 for $12.9 million. On the Federal Estate Tax Return, the Estate reported the following values for each painting: (1) $5.0 million for the Picasso; (2) $800,000 for the Motherwell; and (3) $500,000 for the Dubuffet.

The IRS contested the Estate’s reported valuations and commissioned its own experts to value the paintings. The IRS’ experts determined the paintings had substantially higher values than those reported by the Estate: (1) $10.0 million for the Picasso; (2) $1.5 million for the Motherwell; and (3) $900,000 for the Dubuffet. Using these higher values, the IRS issued the Estate a Notice of Deficiency, and the dispute found its way into the U.S. Tax Court.

One important aspect of the dispute was the general state of the art market in 2009 at the time of the owner’s death. The Court noted that the recession took a toll on the art market in 2009, with auction houses suffering a substantial decline in revenues. By 2010, however, the market had made a substantial recovery. The Estate sold the Picasso at auction in 2010, generating a final price more than double the expected price set by the auction house.

The Tax Court held that the Picasso’s 2010 sales price was one of the most probative factors on its value. The IRS’ $2.9 million downward adjustment to the sales price addressed the 2009 market conditions in the eyes of the Court, and the Court sided with the IRS on the value of the Picasso. Conversely, the Estate’s experts properly evaluated comparable sales for the Motherwell and the Dubuffet, and the Court held in favor of the Estate as to both paintings.

This case shows that valuable artwork can result in a sizeable taxable estate, even during times of unfavorable market conditions. Planning for artwork is crucial, particularly if the family intends on keeping the artwork or desires to make charitable donations. If you have any questions concerning estate planning for valuable artwork, please contact experienced estate counsel immediately.

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Berry Unfortunate for Plaintiff, But Slip and Fall Claim Fails

Troupe v. Burlington Coat Factory Warehouse Corp., ___ N.J. Super. ___ (App. Div. 2016).  Today, Judge Suter authored her first published opinion for the Appellate Division.  While shopping at a Burlington Coat Factory store, plaintiff allegedly slipped and fell on a single berry that was on the floor.  She injured her knee and back.  Plaintiff […]

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Yogi Berra’s Tips for Appellate Advocacy

On this first workday after the big blizzard, what could be more appropriate than an article from a legal publication from Buffalo, NY, a place where they really know big snowfalls?  This piece is from the Buffalo Law Journal, and it adapts some of the wisdom of that well-known legal philosopher (a New Jersey citizen […]

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Access to Personnel File Allowed

The Personnel Files Act allows any individual to view their personnel file.  In this particular case the employee was denied access to their personnel file which violates the law.  They were directed to allow access but failed to do so under the auspice that Ms. xx was no longer an employee as she was terminated approximately one week earlier.  The Act allows for a reasonable amount of time to request access to your personnel file once you've been terminated.  Access to this information can allow further insight into the reasons behind termination.

Some Common Sense on Class Actions from the U.S. Supreme Court

Campbell-Ewald Co. v. Gomez, ___ U.S. ___ (2016).  The Supreme Court of the United States has made some dreadful decisions in the class action area, including notorious rulings restricting class certification, making it harder for plaintiffs to use expert testimony (though that ruling was likely limited to its own facts), and forcing putative class claimants […]

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One Family, One Judge? Perhaps Not in the Context of an Act of Domestic Violence

We’ve all heard the maxim “One Family, One Judge” in the context of matrimonial matters. The underlying premise is that one judge in the Family Part should hear the entire case because that judge is intimately familiar with the facts of the case, has observed the parties and their demeanors and perhaps has made credibility findings. One case even described this practice as a “matter of common sense.”

However, the situation becomes a little bit more murky in the context of domestic violence.

To provide some background:

Often an act of domestic violence results in 2 separate proceedings: one in family court and another in municipal court. This is because New Jersey’s Prevention of Domestic Violence Act references actual criminal offenses prosecuted under the criminal code.  Simply put: the family part deals with the quasi-criminal action – the issuance of a restraining order utilizing the elements set forth under the criminal code – and the municipal court deals with the purely criminal action – the conviction for the actual violation of the criminal code.

With that in mind, does the family part have authority to make a determination as to the issuance of a final restraining order AND take jurisdiction over any resulting criminal action that may be pending in municipal court?

Judge Jones weighs in in the case of M.R. v. T.R.

In M.R., there were three cases that were simultaneously pending:

CASE #1: Wife filed a domestic violence complaint filed on July 2, 2014, alleging that her husband harassed her by coming toward her in a physically menacing fashion, to the point where she used pepper spray in self-defense;

CASE #2: Husband became the complaining witness in a municipal court action against the wife, alleging that the wife had assaulted him with pepper spray in an unprovoked fashion; and

CASE #3: Wife filed a complaint for divorce against the husband on July 21, 2014, who in turn filed a counterclaim.

Case #1, the domestic violence complaint, was ultimately dismissed by the Court, upon a finding that there was insufficient evidence to support the entry of a final restraining order against the husband. However, Case #3, the divorce action, remained pending in the family court. Case #2 likewise remained pending in the municipal court.

As part of the divorce action (Case #3), the wife requested that the court transfer and consolidate the pending municipal court action (Case #2) with the divorce action (Case #3).   The husband opposed the transfer and asked that Case #2 remain in municipal court for adjudication.

Judge Jones considered the motion, which he ultimately denied. In doing so, he relied extensively upon R.5:1-2(c)(3), which states:

“[a]ny non-indictable offense or violation pending in the municipal court . . . may be transferred for trial and disposition to the Family Part pursuant to R.5:1-3(b)(2) if the gravamen of the offense or violation arises out of a family or family-type relationship between the defendant and a victim.”  [Emphasis added.]   R.5:1-2(c)(3). “Sub-paragraph (c)(3) permits transfer to the Family Part of all criminal and quasi-criminal matters pending in the municipal court where the gravamen of the offense arises out of a family or family-type relationship between the defendant and victim.”  [Emphasis added.] See Comment 2.3 to R.5:1-2(c)(3).

As Judge Jones noted, only two unreported decision have touched upon this issue. The first, Brown v. Brown, 196 N.J. Super. 92, 94-5 (Chan. Div. 1984), involved the transfer of a municipal court complaint of harassment against a spouse made by her spouse.

The Brown Court ultimately granted the transfer, stating “[t]his court is familiar with the parties’ situations and is best suited to address related problems as they arise.” However, the Court emphasized that such a transfer is a matter of judicial discretion, to be considered on a case by case basis.

By contrast, the second case, State v. Hall, 203 N.J. Super. 423, 426 (Law Div. 1985), denied the transfer of the municipal case because there was no actual case pending in the family court at the time of the application to transfer.

Against this legal backdrop, the Judge Jones opined that to transfer the matter from municipal court to the family part would give rise to multiple legal complications and conflicts. Primarily, Judge Jones cited the prohibition against utilizing testimony in a domestic violence matter in a simultaneous or subsequent criminal proceeding under N.J.S.A. 2c:25-29(a).  The spirit of the rule would naturally raise concerns if the same judge is left to consider both proceedings.

The Court concluded that because there is an inherent benefit of keeping litigation as free as possible from, at the very least, the perception of conflict and evidentiary confusion, there is “logical value” in avoiding the same judge hearing both the domestic violence action and the criminal action.

Moreover, Judge Jones highlighted the distinctions between the domestic violence actions, as follows:

(1)        The domestic violence action in the family part is filed by the victim, whereas the criminal action in the family court is filed by the State of New Jersey. 

(2)        The burdens of proof in the two courts differ as well, with the former being decided by a preponderance of the evidence, and the latter being decided beyond a reasonable doubt. 

(3)        In the criminal proceeding, the defendant has the right to remain silent to prevent self-incrimination.  However, in the context of a civil domestic violence proceeding, the adverse party may be called to testify against his or her own interest.

(4)        In order for the domestic violence plaintiff to be issued a restraining order, he or she must meet a 2 pronged Silver test: (1) that an act of domestic violence occurred, and (2) that there is a need for a restraining order to prevent ongoing violence and to protect the victim from further abuse.  The criminal court, by contrast, determines whether or not a defendant is guilty of an act of violence and enters a conviction accordingly.  Typically, no civil remedies are addressed.

(5)        In a domestic violence matter, a plaintiff may be represented by private counsel.  In a criminal proceeding, the case may proceed with a criminal prosecutor.  In that regard, there are different obligations to the defendant and there is a specific prohibition against a private attorney serving as a prosecutor.

(6)        In a criminal action, there is a right to pretrial discovery.  No such right exists, however, in a domestic violence proceeding, which typically is a summary proceeding.  Discovery in a domestic violence matter is only granted upon application and in the discretion of the court.

(7)        In a domestic violence proceeding, the case proceeds to a hearing under a very specific timetable – usually 10 days.  There is no such deadline in municipal courts.

Judge Jones aptly stated that the distinctions in the two proceedings are the very reason that the prohibition against the use of testimony from the domestic violence proceeding in a subsequent criminal proceeding exist to begin with.

The Court concluded that “the concept of transferring a municipal court case to family court to be heard by the same judge…is fraught with potential complications, risks and legal pitfalls.” It was for that reason that the Court denied the motion and both cases proceeded in their original intended venues.

_____________________________________________________________________________

 Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.

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In the recent Appellate Division case of In Re Sogliuzzo, the Appellate Court awarded counsel fees to the Estate to be paid by Defendant. This was due to the Defendant’s unlawful misappropriation of funds from his elderly mother, which he accomplished by exerting undue influence over her in order to facilitate the transfer of the funds. This case is the inverse of a typical challenge to a Will, wherein counsel fees are paid by the Estate to the contestant.

In this particular matter, which is much less common, the Estate was awarded counsel fees for prosecuting an undue influence action against the wrongdoer pursuant to which it was forced to incur counsel fees and costs in prosecuting the action. The Appellate Court found that Defendant’s exertion of undue influence over his mother, pursuant to which he obtained a substantial financial benefit for himself, met the rationale for an award of counsel fees.

Thus, Defendant was ordered to pay counsel fees to the Estate for the costs it incurred in bringing this action. The Court rationalized that this was the only way to make the estate whole due Defendant’s defalcation.

It should be noted, however, that had the Estate not succeeded with its undue influence claim against Defendant, there would have been no other possibility of recovering the counsel fees. It is only because the Estate was able to prove its claim that it was able to recover counsel fees. As such, an Estate litigation practitioner should consider if they are bringing an undue influence claim against a party on behalf of the Estate, as the Estate may be entitled to an award of counsel fees and costs in prosecuting the action.

Moreover, if the Court also finds that there was a defalcation while the defendant acted in a fiduciary capacity for the decedent, said judgment would not be dischargeable in the U.S. Bankruptcy Court. As such, if you are serving as an executor of the Estate and you are faced with a potential cause of action it is suggested that you consult with experienced counsel.

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Expungements Made Easier!

Chris Christie made it easier for people with criminal records, with incarceration, to obtain expungements.

If you've been convicted of a crime in New Jersey and wish for an expungement, call today to get started.  We offer free consultation with a NJ Criminal Attorney.  See if you qualify for an expungement and get the process started. Call 800-709-1131.

Christie OKs Measure Easing Expungement

Upcoming Estate Planning Seminar

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Be Careful What you Post on Facebook

It is always best practice to be careful what you put on the Internet.  Once something is on the internet, it never goes away.  If you wouldn't want something published in the New York Times, then don't write it or publish it on the Internet.

If you need a NJ Criminal Attorney or a NJ Divorce attorney, call Simon Law Group today 800-709-1131 for your free consultation.  Don't wait until it's too late.

An LDG Case is Argued in the United States Supreme Court

Today, Heffernan v. City of Paterson was argued in the Supreme Court of the United States.  [Disclosure:  My partner Victor Afanador handled this matter on behalf of defendants in the District Court and the Third Circuit.  He was at counsel table today as Supreme Court counsel argued for defendants.].  The transcript of today’s oral argument […]

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Justice Marie L. Garibaldi (1934-2016)

Retired Justice Marie Garibaldi died last Friday at age 81.  A 1959 graduate of Columbia University Law School (her class included just twelve women, one of whom was Ruth Bader Ginsburg, now a Justice on the Supreme Court of the United States), she was a woman of “firsts,” most notably as the first female president of […]

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The Doctrine of Fugitive Disentitlement and Its Impact on Child Custody Matters

The doctrine of fugitive disentitlement bars a fugitive from seeking relief in the judicial system whose authority he or she evades, i.e. one cannot flee the country and evade a court order and simultaneously seek the court’s protection.

Justice Virginia Long (now retired from the Supreme Court and Counsel at this firm) set forth the standards for the application of the doctrine in Matsumoto v. Matsumoto, 171 N.J. 11, 120 (2002):

[T]he party against whom the doctrine is to be invoked must be a fugitive in a civil or criminal proceedings; his or her fugitive status must have a significant connection to the issues with respect to which the doctrine is sought to be invoked; invocation of the doctrine must be necessary to enforce the judgment of the court or to avoid prejudice to the other party caused by the adversary’s fugitive status; and invocation of the doctrine cannot be an excessive response. Id. at 129.

In the realm of family law, this doctrine poses a unique question to Courts who are required to balance (1) their power to enforce their orders against those who have evaded them, against (2) a fugitive’s parental rights, duty of support and, most importantly, the best interest of the child(ren) whose parent is evading the law.

Recently, the Appellate Division in Matison v. Lisnyansky, held that “[a] father may not obtain the protection of our judicial system to appeal a palimony and custody default judgment while he remains outside of the country avoiding arrest on an outstanding child-support bench warrant.”

There, the defendant father, Mark Lisyansky and plaintiff mother Yvietta Matison, had twin children in 2004. Sometime thereafter, defendant came to the United States and purchased an approximately $1.9 million dollar home in Franklin Lakes, which was substantially renovated. In March 2006, the plaintiff and the parties’ two children then came to the United States and moved into the Franklin Lakes home. Defendant also provided a nanny, interior decorator and secretary. Defendant then returned to Europe to conduct business and plaintiff and the children remained in Franklin Lakes until defendant sold the home. Thereafter, plaintiff and the children moved to Tenafly and defendant continued to provide financial support from abroad.

This arrangement continued until 2012, when defendant stopped supporting the children. Plaintiff obtained a court order for child support (the parties were never married so this was not a divorce proceeding), which stated that, “[a] writ of Ne Exeat [which in Latin means, ‘that he not depart’] shall remain against defendant” and a bond or alternate security was required to be posted. The order also stated that “[t]he Warrant for defendant’s arrest shall remain outstanding until he satisfies his support arrears and complies with the other terms of this Order.”

The matter was set for trial and defendant discharged his attorney and failed to appear. The Court entered a default against defendant and held a four-day hearing on plaintiff’s claims, ultimately entering a default judgment on May 1, 2013. One-day before the one-year limit set forth in R. 4:50-2, defendant filed a motion to vacate the default judgment (through counsel as he could not appear due to the still outstanding bench warrant), which was denied. Defendant then appealed this Order.

The Appellate Division noted that defendant has been avoiding his court-ordered responsibility to support his two children, while at the same time, he sought to appeal the issues of palimony and custody resulting from the same litigation.

In its opinion, the Appellate Court acknowledged that, as set forth in Matsumoto, “whatever limits the fugitive disentitlement doctrine might impose in other settings would not be applicable in a custody case in which no enforcement issue exists”. Thus, if child custody is a substantial issue the doctrine would not apply. However, the Court concluded here that custody was not an actually an issue. The Appellate Division noted that, curiously, defendant did not raise custody as an issue throughout the litigation, raising it only for the first time in his motion to vacate the default judgment (almost a year after its entry). Further, Defendant did not offer a custodial alternative and the Court recognized that Defendant had been afforded contact with his children through supervised parenting time that was to be arranged between the parties.

Thus, since custody was clearly not an issue in the underlying litigation, the Court declined “to afford [defendant] the protection of the court while he flaunts the court’s authority from overseas.” Should custody reemerge in this matter, same is always modifiable upon a showing of changed circumstances.

Thus, the Court’s ultimate decision in this case balanced the fugitive disentitlement doctrine in favor of defendant’s facetious argument for custody. Though it might seem obvious that a person cannot flee our county and then seek the protections of the Court, that may not always be the case in family law matters. With today’s ever mobile society, it will be interesting to see in what instances, if any, a fugitive’s parental rights and the best interests of the child may outweigh the doctrine of fugitive disentitlement.

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Parent’s Right to an Intestate Share of their Child if the Child was Forsaken by the Parent

In the recent Appellate Division decision of In the Matter of the Estate of Michael Fisher, the Appellate Court reviewed whether the Appellant and father of the Decedent, Michael Fisher, would be entitled to an intestate share of his deceased son’s estate. The main issue before the Court was whether or not the Appellant had forsaken or abandoned his son, and as a result, he would not be entitled to an intestate share of his estate under N.J.S.A. 3B:5-14.1.

This statute provides in relevant part that if a parent refused to acknowledge and/or abandoned the Decedent when he/she was a minor by willfully forsaking the child, then the aforementioned parent would not be entitled to an intestate share of the Decedent’s estate. The Appellate Division explained that the application of this statute is factually sensitive.

In this matter, the Court concluded that a parent may lose his or her right to intestate succession if this parent abandoned the Decedent when he or she was a minor by: (1) willfully forsaking the Decedent; (2) failing to care for and keep control and custody of the Decedent so that the child was exposed to physical and/or moral risk without proper and sufficient protection; or (3) by failing to care for and keep the control and custody of the Decedent which resulted with the child being left in the care and custody and control of the State at the time of death.

After examining the legislative intent in this matter, the Court concluded that, in order to willfully abandon or forsake a child, they must find that the parent, through his or her unambiguous conduct, had clearly manifested intent to permanently forego all parental duties and relinquish all parental claims to their child.

In parental termination rights cases, the burden of proof generally rests with the party seeking to terminate parental rights to demonstrate by clear and convincing evidence that such application should be granted. The Appellate Division, however, refused require that level of proof with regard to the intestate share statute. Instead, the Court found that the preponderance of evidence standard is applicable.

As a result, the Court found in this appeal that the Appellant did not willfully abandon or willfully forsake his son. There was no proof presented of affirmative actions by the Defendant which would allow the Court to reach such a conclusion. In the absence of intentional and specific conduct whereby the Defendant has intentionally and permanently willfully abandoned or forsaken his/her child, he/she would still be entitled to an intestate share of the of the Decedent’s estate.

If you have any more questions about intestate share, it is strongly recommended that you seek experienced counsel immediately.

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Beware Legal Whack A Mole

Sometimes, instead of practicing family law, it feels like we are playing a game of legal Whack A Mole.  You know what Whack A Mole is, right?  For those who don’t, it is the carnival game where the player has a mallet and has to hit the mole that pops up.  As soon as you hit one mole, another pops up, again and again.

What is legal whack a mole, you may ask.  It is when every time you think that you have a case resolved, another issue is raised, out of the blue.  Often it is an issue that you thought you had resolved.  Often it is an issue of insignificance.  Perhaps it is a request for information that was already provided, or on a resolved issue, or better yet, a list for updated information that wouldn’t likely change the prior resolution.  Dealing with this makes you feel like the proverbial Dutch boy trying to plug the new leaks in the dike.  This is worse than the never ending negotiation that I have blogged about, because there really is no end in sight.

The key to dealing with this is to try to find out who this is coming from.  Is it coming from the other party?  If so, that might indicate that he or she is just not ready to settle the case and move on (especially if there has been extensive and complete or largely complete discovery.)  One of the first posts I did on this blog in 2008 was called All Cases Have a Life of Their Own.  Some times, you just have to wait for the other party to be ready to settle.

More problematic is when the other attorney is the impediment to settlement.  Now, it is one thing when you are trying to protect your client from selling him or herself out by agreeing to a deal that they will surely regret when the guilt, pressure, duress, etc. wears off.  I would argue that it is the attorney’s job to protect the client the best they can in that way, especially where all of the facts are not known – though at the end of the day, the decision to settle is ultimately the party’s.

That’s not what I am talking about here.  Rather, I am talking about when an adversary is obstreperous and an impediment to settlement for no apparent reason.  I have had an adversary that has blown up deals reached in mediation with lawyers present, 5 different times, though it was clear that his client wanted to settle.  I have had adversaries who have refused to allow the judge or mediator speak with their client alone.  I have had adversaries try to storm out of mediation with their client tugging on their arms to stay.  I have had adversaries delay, ask for more information, that they didn’t look at for months, only to then ask for updated information, or updated appraisals, or more depositions, or more experts with no clear direction or end game other than to drag the case out.

If the attorney is the culprit, as opposed to the client, some times it is best to get the trial judge involved.  If the trial judge cannot pressure/craft a settlement, at least she or he will see what is really happening and who is being unreasonable.  Because the issue in these types of cases often becomes counsel fees as the tail wagging the dog, the judge will quickly get the picture and this can impact or negate the offender’s claim for fees after a trial.  And if the nonsense continues, as I have said before, some times you just have to try a case.

_________________________________________________________

Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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Powerball Winner & Divorce?

With the upcoming Powerball jackpot being the largest in history ($1.5 billion), the issue of whether a lottery prize is subject to equitable distribution is certainly relevant, and may be a very real issue for some lucky winner(s). The answer to that inquiry is “it depends.” It depends on when the Complaint for Divorce is filed-before or after the big win.

It is a well-settled law that all assets and liabilities acquired during a marriage are subject to equitable distribution. The marriage lasts from the date of the marriage to the date the Complaint for Divorce is filed. Once the Complaint for Divorce is filed, any asset or liability acquired thereafter will not be subject to equitable distribution. In other words, the Complaint for Divorce sets the cut-off date for purposes of determining what assets are subject to equitable distribution.

If the Complaint for Divorce was filed prior to the lottery winner’s big win, the spouse of the lottery winner would be not so lucky, insofar as they would not be entitled to the winnings since it was won after the cut-off date.

If, however, the Complaint for Divorce is filed after the big lottery win, that prize is subject to equitable distribution. It is important to note that equitable distribution does not always mean that an asset is split equally—the Court must consider sixteen different factors in determining how a particular asset is divided.

Finally, the Family Court is a Court of equity, and in the event that the lottery prize is not subject to equitable distribution, there are equitable arguments that one could make for an unequal distribution of the rest of the marital assets, as well as other issues such as child support, alimony, etc. in light of the lottery winner’s prize.

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Are You Prepared to Win the Powerball Jackpot?

What would you do if you won the lottery? That is the big question we ask ourselves as the anticipation builds for the $1.5 billion Powerball drawing. After all, there’s nothing wrong with imagining what we would do if we held a winning lottery ticket or hit the jackpot in a casino.

But for the winners, there are some real concerns. Most importantly is how to protect your asset – the winning ticket. The jackpot will be paid to the person who carries the ticket into the State Lottery Commission office. If you are the lucky owner of the winning ticket, keep it in a safe place. Take time-stamped pictures of the ticket to document your ownership. It is often recommended that you sign the back of the ticket to prevent anyone else from redeeming it. Unfortunately, signing the ticket may limit your other planning options, but it may be the best protection from theft.

Before redeeming the ticket, you also need to decide whether to choose a lump sum or annuity payout. That decision isn’t as simple as it sounds. A $1.5 billion lottery jackpot is really the sum of $50 million annual payments over the next 29 years. The lump sum payout is $930 million – 62% of the advertised jackpot. Neither option is bad, but you must consult with tax and investment professionals to analyze the options. In simple terms, the annuity payout only yields around 2.2% annually, but the annuity allows you to pay the income tax liability over 29 years, instead of paying it all up front.

Many of the other concerns are not unique to lottery winners. The issues are no different from those faced by individuals who receive large sums of money from an inheritance, the sale of a business, or the settlement of a lawsuit.

One of the common concerns is privacy. Many people fear being inundated by people offering to help or asking you to share your wealth with them. Gifts to charity, family, and friends are important parts of the process, but the gifts must be pursuant to a plan that addresses both your needs and the needs of the gift recipients.

Some lotteries allow you to remain anonymous, while others require that you release your name. Some lottery commissions allow you to set up a Trust or Limited Liability Company to own and redeem the ticket in a fictitious name, while others refuse this ability. It is possible that specific threats to a lottery winner’s safety can be the basis for claiming anonymity. Except in the few states that allow you to remain anonymous, signing the back of the ticket will likely force you to redeem the ticket personally.

Regardless of the source of the wealth, maintaining your anonymity largely depends on your behavior. To remain under the radar, you must avoid conspicuous spending and other lifestyle changes that will broadcast your new financial situation to the world. Even if the Lottery Commission doesn’t know your name, you will not remain anonymous if you suddenly and uncharacteristically quit your job, buy a big house, and start driving a Ferrari. How you live your life after you have the money will affect how well you are able to maintain your privacy.

Whenever you experience large changes in your financial situation, it is important to assemble a team of professionals to help you with the legal, tax, and investment decisions that you must make. Very few people ever win a massive lottery jackpot; many more people will receive large sums of money from inheritances and other sources. As silly as it sounds, it is never too early to start asking yourself who you would want on your team.

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The Fugitive Disentitlement Doctrine

Matison v. Lisnyansky, ___ N.J. Super. ___ (App. Div. 2016).  This opinion by Judge Koblitz today, which dismisses the appeal, is one of the shortest published Appellate Division decision that I can recall.  That is because no lengthy discussion was necessary in this palimony and child support case. Defendant appealed a default judgment against him […]

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No Affidavit of Merit Needed for Malicious Use of Process Claim Against Attorney

Perez v. Zagami, LLC, ___ N.J. Super. ___ (App. Div. 2016).  Plaintiff Perez and defendant Zagami have a lengthy history of litigation against each other, including one case that went to the Supreme Court, as discussed here.  This latest case involved a claim of malicious use of process regarding an underlying defamation case.  In response […]

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The Supreme Court Lays Out the Procedures for Cases Under the Grandparent Visitation Statute

Major v. Maguire, ___ N.J. ___ (2016).  The Grandparent Visitation Statute, N.J.S.A. 9:2-7.1, permits grandparents to apply for visitation rights with their grandchildren even where the children’s parents object.  In Moriarity v. Bradt, 177 N.J. 84 (2003), the Supreme Court ruled that applications under the Statute to which parents object must be proven “by a […]

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Grandparent Visitation Just Got Easier – Well, Not Really, But At Least There Will Now Be A Uniform Procedure

After the US Supreme Court decided Troxel v. Granville in 2000, invalidating Washington’s “breathtakingly broad” grandparent and third party visitation statute, there was an onslaught of litigation, nationwide, seeking to invalidate grandparent visitation statutes in each state.  Ultimately, in 2003 in the case of Moriarty v. Bradt (a case I was involved with), the New Jersey Supreme Court addressed this issue for the first time, post-Troxel, and held that because a judicial order compelling grandparent visitation infringes on parents’ fundamental right to raise their children as they see fit, the statute could only survive a constitutional challenge if a “threshold harm standard” augmented the “best interests of the child” factors set forth in the statute. What followed was litigation about what constituted harm, how it could be plead, etc.

Thereafter, changes in court procedure began to create an obstacle to these cases meeting the initial threshold.  Because grandparent visitation cases are often treated as “non-dissolution” or “FD” cases, a streamlined, form pleading process was created by the court to use in FD cases.  The typical complaint which would lay out the facts was now not permitted.  Once it was determined that those attorney prepared pleadings could then be affixed to the form, the next issue that then arose was whether there was an entitlement to an expert and other discovery, since FD cases are deemed summary proceedings where discovery is not automatic.  While the Appellate Division seemed to resolve this in 2014 in R.K. v. D.L. which provided for a differentiated case management for complex FD cases, the Supreme Court had not yet weighed in on the topic.

Today, the Supreme Court has finally resolved this issue in grandparent visitation cases in the case of Major v. Maguire reaffirming the need for differentiated case management for complex grandparent visitation cases.  In this case, similar to the Moriarty case, one of the parents died and the remaining parent cut off the other grandparent’s access to the children leading to the litigation.  The trial court initially dismissed the Complaint because the grandparents could not prove harm.  The Appellate Division disagreed and reversed and remanded the matter to trial court with directions to re-examine the complaint under R.K..

The Supreme Court affirmed the Appellate Division, holding:

 We reaffirm the holding of Moriarty that, in order to overcome the presumption of parental autonomy in the raising of children, grandparents who bring visitation actions under N.J.S.A. 9:2-7.1 must prove by a preponderance of the evidence that denial of visitation will harm the child. This case, however, arises not from a court’s findings on a full record, but the grant of a motion to dismiss under Rule 4:6-2(e) at the pleading stage, in which plaintiffs must be afforded every reasonable inference of fact. Here, plaintiffs alleged in detail their involvement in their granddaughter’s life prior to the death of their son and contended on that basis that their alienation from the child caused her harm. The trial court should have denied defendant’s motion to dismiss and given plaintiffs the opportunity to satisfy their burden to prove harm.

Though the decision is 36 pages long, the following paragraphs encapsulate what you really need to know:

First, as applied to a complex grandparent visitation case, the Appellate Division’s case management recommendations in R.K., …, enhance the constitutional standard articulated in Moriarty. We concur with the panel in R.K. that in some grandparent visitation actions, the limitations imposed in summary actions may deprive a litigant of an opportunity to meet his or her burden under the statute and case law. … We recognize, however, that the case management procedures envisioned by R.K. also impose burdens on the privacy and resources of a family, and that they are neither necessary nor appropriate in every case.

We consider the approach reflected in Rule 5:5-7(c) to strike the appropriate balance. That Rule requires the trial court to hold initial and final case management conferences, and to enter an order addressing the full list of issues set forth in R.K., only in grandparent visitation cases that warrant assignment to the complex track. … Visitation applications that are not “complex” may be handled as summary actions, with or without case management and discovery as authorized by Rule 5:4-4(a). … Thus, when a trial court determines the need for complex case management in a particular case, the Appellate Division’s case management recommendations in R.K. provide a practical template for courts and parties.

Second, when a party seeks to have the matter designated as “complex,” the plaintiff should ordinarily file a non-conforming complaint, as permitted by Rule 5:4-2(i), to supplement the form pleading required by Directive 08-11. With no constraints on the length of their pleadings, many plaintiffs will be in a position to present a prima facie showing of harm in that complaint without the need for intrusive discovery. For example, in a case such as this one, the grandparent would be able to plead a showing of harm; he or she may allege his or her contacts with and care for a grandchild when the parent was alive, the timing and circumstances of the parent’s death, any changes in family relationships that followed, the nature of the claimed harm, and other pertinent considerations. … Relevant facts within a grandparent’s knowledge should be presented with precision and detail. Similarly, a parent opposing visitation should use his or her responsive pleading to identify issues on which the parties agree and counter the grandparents’ factual allegations on disputed issues…. Informed by the pleadings, the trial court can make a considered judgment about the complexity of the matter, the need for fact or expert discovery, and the issues to be resolved.

Third, in the event that fact discovery is required, the court and the parties should work together to coordinate and streamline the process. … Whether the case is designated as complex or handled as a summary action, Family Part judges have broad discretion to permit, deny, or limit discovery in accordance with the circumstances of the individual case. …Under the court’s supervision, the parties should address only the issues in dispute: whether the grandparents have met their burden to demonstrate harm to the child in the absence of visitation, and, if so, what visitation schedule will serve the best interests of the child, applying the factors identified in N.J.S.A. 9:2-7.1. …

Any discovery should be carefully circumscribed to prevent or minimize intrusion on the privacy of the child and his or her family. … It is the rare case that will require the trial court to embark on a comprehensive inquiry into family history or probe the relationships of warring adults. The court, counsel and parties should be aware that no matter how difficult the circumstances may be, the litigants’ interests are not the primary concern. Instead, the court’s focus, and that of the parties, must be the welfare of the child.

Fourth, as the Court noted in Moriarty, supra, expert testimony may be necessary for grandparents to meet their burden under N.J.S.A. 9:2-7.1. … Particularly in settings in which one of the child’s parents is deceased, and the other parent has barred or sharply limited the grandparents from contact with the child, parties seeking visitation may not have access to current information about the child’s status. In determining whether expert testimony is appropriate, trial courts should be sensitive to the impact of expert involvement on family resources, protective of the privacy of the child, and mindful of an expert’s potential value to the court and parties in suggesting a resolution of the dispute.

Fifth, even when it has afforded grandparents the opportunity to conduct fact or expert discovery, the trial court should not hesitate to dismiss an action without conducting a full trial if the grandparents cannot sustain their burden to make the required showing of harm. To that end, a court may dismiss summary actions pursuant to Rule 4:67-5, and decide complex visitation cases by summary judgment under Rule 4:46-2(c). Consistent with the due process autonomy interests recognized in Troxel, and Moriarty, a trial court should not prolong litigation that is clearly meritless.  (Emphasis added); (internal citations omitted and otherwise edited for space).

The takeaway is that, after a dozen years, there now seems to be more of a clear roadmap for the courts and litigants as to how to handle these cases if they are to be litigated.  That said, the Court interestingly noted that litigation may not be the answer, when it held:

Finally, trial courts should encourage parties to mediate or arbitrate grandparent visitation actions in accordance with New Jersey’s strong policy in favor of alternative dispute resolution. In a meritorious case, a seasoned mediator or arbitrator with experience in visitation and custody issues may devise a solution for the parties’ conflict promptly and inexpensively, to the benefit of the child and the parties.

Query, should or will a parent be forced to mediate a non-meritorious case because a trial court seeks to punt the above procedures down the road? If so, would that, in an of itself violate the constitutional protections that Moriarty and Major seek to impose.  The future of grandparent visitation cases will remain interesting, I’m sure.

_________________________________________________________

Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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Associate Max Schatzow Published: The Startup Lifecycle: Friends and Family Round

Stark & Stark Associate Max L. Schatzow, member of the Securities Group, authored the article The Startup Lifecycle: Friends and Family Round, which was published in the New Jersey Law Journal on December 1, 2015.

This is the third part of an ongoing series detailing all the minutia of a business’ startup lifecycle. In this article, Mr. Schatzow continues with the hypothetical business as it begins to raise funds. More specifically, this means its founder will need to conduct the offering under Rule 506 of Regulation D.

Further, Rule 506 requires “an issuer to make a subjective determination that, at the time of acquisition of the investment, each nonaccredited purchaser is sophisticated or has a sophisticated ‘purchaser representative.’” Meanwhile, under Regulation D “any purchaser that is not an ‘accredited investor’ must receive prior to the sale, at a minimum: i) the issuer’s balance sheet and potentially audited financial statements, and ii) nonfinancial information that is typically found in a prospectus.”

However, prior to conducting the offering, the founder would need to meet with his attorney to discuss all the information that will need to be disclosed in a private placement memorandum. This includes a description of the business, disclosing the use of proceeds, indentifying the directors and executive officers, list of principle shareholders, and other risk factors. As Mr. Schatzow explains, business owners are encouraged to provide this information to “all investors for fear of the antifraud provisions of the securities laws, where even an omission can create liability for the company.”

To read the full article, please click here.

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Some Appellate Division Insights From Judge Fisher

Last night’s meeting of the New Jersey State Bar Association’s Appellate Practice Committee featured Judge Fisher.  He took questions and discussed various issues of practice and the preferences of Appellate Division judges (or at least his own preferences). Judge Fisher said that, contrary to what many people believe, Appellate Division arguments are not generally tape-recorded, […]

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Judge Restrepo is Confirmed to the Third Circuit

By a vote of 82-6, the United States Senate last night confirmed Judge Luis Felipe Restrepo to the Third Circuit Court of Appeals.  Judge Restrepo fills the vacancy that arose when Judge Scirica took senior status on July 1, 2013. A graduate of the University of Pennsylvania and Tulane Law School, Judge Restrepo had sat […]

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Shareholder Timothy P. Duggan Interviewed in New Jersey Law Journal Article

Stark & Stark Shareholder Timothy P. Duggan, Chair of the Bankruptcy & Creditors’ Rights, Eminent Domain, and Real Estate Tax Appeal Groups, was interviewed in the article Margate Ruling Makes Waves in Still-Active Dune Litigation, which was published in the New Jersey Law Journal on December 17, 2015.

In the article, Mr. Duggan discussed a trial judge’s recent decision to allow an Atlantic County municipality to make its case against the federal government’s current beach replenishment plan. However, there is a high evidentiary burden required in order to overcome a condemning authority, so there is no guarantee this will be an easy victory.

According to Mr. Duggan, “I think there’s a good chance it’s going to work its way up the system…I’m wondering if, based on the decision on Margate, whether or not some other towns are going to take that same route.”

In order to prove their case, Margate was able to obtain expert reports on why improvements to its existing system of bulkheads would be superior to the U.S. Army Corps of Engineers’ current plan to construct dunes on various municipal parcels. However, in order for their plan to begin, they will first need to obtain the land necessary. This will be accomplished through eminent domain.

To read the full article, please click here.

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More Fun for Judge Fisher as He Affirms a Denial of Arbitration

Morgan v. Raymours Furniture Co., ___ N.J. Super. ___ (App. Div. 2016).  Today, Judge Fisher issued the first published Appellate Division decision of 2016.  Recently, Judge Fisher wrote an opinion that cited Humpty Dumpty and Joyce Kilmer’s poem “Trees.”  His opinion today incorporates Aesop, a 1546 form of a familiar proverb about having one’s cake […]

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Shareholder Steven L. Friedman Published Article on NJ.com

Stark & Stark Shareholder Steven L. Friedman, Chair of the Trusts & Estates Group, authored the article The Top Reasons for Establishing Control Over Your Estate, which was published on NJ.com on December 11, 2015.

The article details many of the factors that are involved in forming an Estate Plan. Various legal documents can assist you in developing an Estate Plan, which can include Wills, Trusts, Durable Powers of Attorney, and Advance Directives, but the most important factor can in this planning will always be communication. This can include discussing preferred health care decisions with your Proxy Directive or your plans for how you wish your minors to be educated and raised with your selected Guardians.

Mr. Friedman recommends that those wishing to start their Estate Plan complete a Personal Record Organizer, which can enable an individual to “communicate the location of important estate, personal and financial documents and records.” Once you have completed your Personal Record Organizer, you should have a comprehensive guide for your family and fiduciaries to follow. This information can include locations to the safety box and its key, Social Security card, Last Will and Testament, contact information for attorneys, accountants, and financial providers, and itemizations of mortgages or any liabilities owed.

To read the full article, please click here.

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Intestate Estate During a Will Contest

As I have discussed in previous blogs, if an individual is considering contesting a Will, they should also consider how the distributions from the Estate might be made should a Will contest result in an Intestate Estate. Simply put, if a Will is invalidated and there is no previous Will that can be probated by the Court, the decedent will be deemed to have died without a Will, otherwise classified as “intestate.” Under such circumstances, the intestacy statute governs how the distribution would be made by the Estate.

Under the most basic distribution of an Intestate Estate, if a spouse has survived the decedent and all of the children were both her and the decedent’s issue, then in that event, the surviving spouse would be entitled to the entire Estate. For further reference, any children of the decedent or spouse are referred to as “of issue” in Wills.

Likewise, if the spouse survived the decedent and there were no children of issue, the spouse would also receive the entire Estate. Aside from these simple scenarios, other potential scenarios can become more complex.

The next typical situation is where a spouse survives the decedent; however, the children of the decedent were not the children of the surviving spouse. Under these circumstances, the surviving spouse would not receive the entire Intestate Estate. Instead, in this case the Estate would be distributed as follows: the surviving spouse would receive the first 25% of the Intestate Estate, but not less than $50,000 nor more than $200,000, plus one-half of the balance.

Another scenario which can occur is if the parent of the decedent survives him or her, but there are no children of the decedent. In this case, the surviving spouse would receive the first 25% of the Intestate Estate, but not less than $50,000 nor more than $200,000, plus three-quarters of the balance. As is plainly evident, under these scenarios the surviving spouse will receive the majority of the estate.

The next scenario involves a situation if there is a mixture of surviving children between the decedent and the surviving spouse. If all the decedents’ surviving children are also descendants of the surviving spouse, and the surviving spouse has one or more surviving children who are not children of the decedent, or if there are surviving children of the decedent who are not children of the surviving spouse, the surviving spouse will receive 25% percent of the Intestate Estate, but not less than $50,000 nor more than $200,000, plus one-half the balance of the Intestate Estate.

Under N.J.S.A. 3B:5-4, the Intestate Succession Law provides for the distribution to heirs other than a surviving spouse or domestic partner. This statute provides that any of the Estate not passing to the decedent’s surviving spouse or domestic partner shall pass as follows: first, to the decedent’s children by representation. If there are no children of the decedent, then the Estate passes to the decedents’ parents equally if both survive or to the surviving parent.

This blog provides a quick glance as to potential distributions under an Intestate Estate. It can, however, become vastly more complex if we have one or two surviving parents, children from other relationships which might be children of the decedent or of the surviving spouse, or numerous other permutations. It is also worth noting that this statute only applies if there is a determination that there is no Will to probate. It is for these reasons that it is important for a party to consider the numerous types of distributions should a Will be invalidated and the Estate be distributed under the laws intestacy.

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The Startup Lifecycle: Friends and Family Round

Stark & Stark Associate Max L. Schatzow, member of the Securities Group, authored the article The Startup Lifecycle: Friends and Family Round, which was published in the New Jersey Law Journal on December 1, 2015.

This is the third part of an ongoing series detailing all the minutia of a business’ startup lifecycle. In this article, Mr. Schatzow continues with the hypothetical business as it begins to raise funds. More specifically, this means its founder will need to conduct the offering under Rule 506 of Regulation D.

Further, Rule 506 requires “an issuer to make a subjective determination that, at the time of acquisition of the investment, each nonaccredited purchaser is sophisticated or has a sophisticated ‘purchaser representative.’” Meanwhile, under Regulation D “any purchaser that is not an ‘accredited investor’ must receive prior to the sale, at a minimum: i) the issuer’s balance sheet and potentially audited financial statements, and ii) nonfinancial information that is typically found in a prospectus.”

However, prior to conducting the offering, the founder would need to meet with his attorney to discuss all the information that will need to be disclosed in a private placement memorandum. This includes a description of the business, disclosing the use of proceeds, indentifying the directors and executive officers, list of principle shareholders, and other risk factors. As Mr. Schatzow explains, business owners are encouraged to provide this information to “all investors for fear of the antifraud provisions of the securities laws, where even an omission can create liability for the company.”

To read the full article, please click here.

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Motions in Limine Cannot be Used as a Last-Minute, Short Notice Substitute for a Motion for Summary Judgment

Cho v. Trinitas Regional Medical Center, ___ N.J. Super. ___ (App. Div. 2015).  In this medical malpractice case, the only remaining defendant, a doctor, filed what was labeled as “motions in limine” on the day before a jury was to be selected.  But those motions, which included a 16-page brief and a total of 260 […]

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The NFL Learns a Lesson: Briefs With the Wrong Color Cover Get Bounced

This first post of 2016 reminds us all that appellate courts all have rules that dictate even mundane matters, such as the color of brief covers.  Appellate judges take those rules seriously, since those rules enable judges to know at a glance which brief they are about to read. Last week, the National Football League […]

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APPELLATE DIVISION ANALYZES WHAT IT MEANS TO “ABANDON” A CHILD “BY WILLFULLY FORSAKING” HIM

Family law and estate law are undoubtedly two very personal areas of the law that often cross-over with one another depending on the issues at hand.  In the Matter of the Estate of Michael D. Fisher, II presents us with one of the more tragic factual scenarios where the two worlds intertwine.

These are the facts that you need to know:

• The parties were married in 1994 and had one child, who was born in 1995.
• The parties separated in 2001 and mom procured a final restraining order against dad after he tried to move child from school without first telling her.    Dad, under the terms of the FRO, was permitted supervised parenting time with child at dad’s psychologist’s office, and dad was to undergo a risk assessment and “receive professional domestic violence counseling.”
• Dad neither attended all supervised time with his son or undergo either the risk assessment or counseling.
• In November 2001, dad filed a motion for unsupervised parenting time.  Mom cross-moved for all time to be supervised until dad completed anger management and the risk assessment.
• In January 2002, the court temporarily suspended dad’s parenting time pending his enrollment of the above-referenced anger management and assessment.
• In March 2002, the court entered a final judgment of divorce, incorporating the terms of the parties’ settlement agreement.  Mom procured sole custody of the child, and dad’s parenting time remained suspended until he complied with the terms of the January 2002 Order.
• During the divorce proceeding, mom presented dad with an offer that, if dad agreed to give up his rights to the child, she would not seek child support.  Dad rejected the offer “out of hand”.
• Dad did not appear for the scheduled risk assessment.  As a result, the parenting time suspension continued.
• From January 2002 until the child’s death in September 2010, dad “never had any legal visitation with his son” and had some phone conversations with him in 2001 and 2002.  He occasionally saw him in public places.
• Through subsequent litigation, dad, who had moved to Florida and became ill, procured a termination of his child support obligation.  He was obligated to pay substantial arrears that had accrued, but had otherwise paid support throughout the child’s life.  He even continued to pay a portion of the support when he was in poor health.  Interestingly, the trial court was critical of dad because he paid support through a wage garnishment even though this was specifically agreed to in the parties’ settlement agreement.
• Dad learned of the child’s death from a relative and returned to New Jersey to attend the funeral.  The child died intestate and, with dad’s consent, mom was appointed as administratrix and administratrix ad prosequendum (named where a wrongful death suit is to be filed) of the child estate.

Since the child had no spouse or children of his own, the parents were to share equally in his intestate estate under N.J.S.A. 3B:5-4(b).  However, another law that became effective only a year prior to the child’s death, N.J.S.A. 3B:5-14.1, provides:

1.  A parent of a decedent shall lose all right to intestate succession in any part of the decedent’s estate . . . if:

(1) The parent refused to acknowledge the decedent or abandoned the decedent when the decedent was a minor by willfully forsaking the decedent, failing to care for and keep the control and custody of the decedent so that the decedent was exposed to physical or moral risk without proper and sufficient protection, or failing to care for and keep the control and custody of the decedent so that the decedent was in the care, custody and control of the State at the time of death . . . .

As expected, mom filed a complaint to bar dad from receiving a share of the child’s estate under the newly passed law, alleging that dad abandoned the child after the divorce by failing to have any contact with him or pay his full child support obligation.  Dad denied that he abandoned the child.

The trial court granted mom’s application despite concluding, “[a]dmittedly, it may not have been [dad’s] specific intent or purpose to abandon his son.”  In so doing, the court found dad’s acts were “unequivocally intentional rather than accidental or involuntary” because it was his choice not to attend supervised parenting time or anger management counseling, as well as not pay child support.

On appeal, the court determined that whether dad “abandoned” the child turned upon an interpretation of the new statute, which provides:

b.  A parent of a decedent shall lose all right to intestate succession in any part of the decedent’s estate . . . if:

(1) The parent refused to acknowledge the decedent or abandoned the decedent when the decedent was a minor by willfully forsaking the decedent, failing to care for and keep the control and custody of the decedent so that the decedent was exposed to physical or moral risk without proper and sufficient protection, or failing to care for and keep the control and custody of the decedent so that the decedent was in the care, custody and control of the State at the time of death . . . .

Analyzing the language, the Appellate Division found that a parent may lose his or her right to intestate succession if the parent abandoned the decedent when he or she was a minor by taking any one of the following three specific steps:

1. willfully forsaking the decedent;
2. failing to care for and keep the control and custody of the decedent so that the decedent was exposed to physical or moral risk without proper and sufficient protection; OR
3. failing to care for and keep the control and custody of the decedent so that the decedent was in the care, custody and control of the State at the time of death.

In so finding, the Appellate Division noted that death or serious harm to the child need not occur for the statutory definition of “abandonment” to be fulfilled and that the law was not supposed to be so limiting in its application.

The Court also engaged in a statutory interpretation of the phrase “willfully forsaking”, noting that it was inappropriate for the trial court to utilize a dictionary definition of “willfully” when many prior cases had interpreted the phrase under a similar statute.  After engaging in its analysis, the Appellate Court determined:

After carefully reviewing these precedents and distilling them to their essence, we hold that, in order for a court to conclude that a parent has “abandoned” his or her child “by willfully forsaking” him or her under N.J.S.A. 3B:5-14.1(b)(1), the court must find that the parent, through his or her unambiguous and intentional conduct, has clearly manifested a settled purpose to permanently forego all parental duties and relinquish all parental claims to the child.

The burden of proof to be applied?  A “preponderance of the evidence”, rather than the more strict “clear and convincing evidence” because the issue merely involved whether a parent may share in a child’s financial estate, rather than the actual “best interests” of the child.  This despite will contests often involving the stricter standard.

Following its legal analysis, the Appellate Court found that dad did not “abandon” his son by “willfully forsaking” him even though he did not take actions necessary to enable him to have parenting time with the child after the FRO was procured by mom.  Ultimately, dad did not manifest a settled purpose to “permanently forego all parental duties and relinquish all parental claims to the child.”  Dad took repeated steps to restore his relationship with the child, would not agree to mom’s offer to terminate his parental rights in exchange for no child support, and paid child support throughout the child’s life (the Court noted that simply filing a motion to terminate child support is not evidence of a “settled purpose” to “permanently forego all parental duties and claims to his child” – in fact, dad did not oppose mom’s motion to reinstate child support if dad could procure Social Security Disability benefits.)

As a result, the Court concluded that the exception to intestate succession that mom sought to apply here was not appropriate and dad was entitled to share in the child’s estate.

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

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