Champagne Taste on a Beer Budget: How One Judge Determined Alimony for an Overspending Couple

I’m not usually one to place a lot of stock in celebrity gossip, but I couldn’t help but take notice of the fact that it has been rumored that Amber Heard’s monthly income is $10,000, yet she spends $44,000 a month on shopping, dining out and vacations. Her ask for spousal support: $50,000 per month, based upon the parties’ marital lifestyle.

45351836 – champagne bottle in ice bucket and two full glasses realistic vector illustration

Amber Heard may not be only one spending beyond her means. This phenomenon applies to us common folk as well.

Particularly during the economic downturn, we have seen many cases where parties have splurged during times of plenty and then failed to scale back when the economic downturn hit. As a result, the parties are living on credit or perhaps not paying their bills. It, in effect, creates an artificial lifestyle which neither party really has the ability to maintain.

This puts the Court in a tough spot. On the one hand, the Supreme Court explained in Crews, “the standard of living experienced during the marriage . . . serves as the touchstone for the initial alimony award.” On the other hand, what happens when the marital standard of living is based on nothing more than irresponsible spending?

An unpublished case was just recently decided by the Appellate Division that touched on this issue. Although the crux of the case really focused on the reversal of a judge’s suspension of alimony as a discovery sanction, what peaked my interest was how the judge dealt with what he classified as an “artificial lifestyle,” marked by the parties’ “irresponsible spending and outlandish behavior, whether going on expensive vacations to South America and Europe, or purchasing fancy cars” when awarding alimony.

In Ponzetto v. Barbetti, decided on June 28, 2016, the parties had a nineteen year marriage which ended in a contentious divorce when the parties were in their mid-forties. The parties did not have any children and the only issues in the case were equitable distribution and alimony, both of which were hotly litigated during the course of a lengthy trial.

The husband had started a sound system business when he was a teenager, for which the wife kept the books. At one point, the business was so lucrative, that it generated revenue of $500,000 per year. These were the times of plenty.

Unfortunately, the business suffered during the economic downturn. The parties’ lifestyle, however, did not. They continued to spend lavishly. By the time of the divorce, they had two Ferraris, a Harley Davidson, Pontiac Fiero and two hummers.

While typically a judge would look at the parties’ spending during the last several years of the marriage to determine lifestyle, in this case, the trial judge found that it would not be appropriate to do so in this situation, where the lifestyle was not based on income or need.

As a result, the judge declined to use “the parties’ irresponsible spending from 2006 through 2008 in determining marital lifestyle” and instead determined to “kindly” utilize the marital lifestyle from 1990 through 2006, which the judge determined to be $14,500 per month. Ultimately, the wife was awarded $400 per week in alimony.

This is just one example of how a judge has dealt with this increasingly common situation. However, judges are frequently placed in these precarious situations, where the parties have exceeded a reasonable lifestyle based upon their income as compared to their expenses. In the case of Ponzetto v. Barbetti, the judge crafted a remedy that was equitable given the specific circumstances of the case.
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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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Summary Judgment for Breach of Settlement Agreement Reversed Due to Issues of Fact

Globe Motor Co. v. Igdalev, ___ N.J. ___ (2016).  One of the fundamental principles of summary judgment jurisprudence is that a court cannot grant summary judgment when there are genuine disputes of material fact.  In evaluating whether such issues exist, the court is to give all reasonable inferences to the opponent of the motion. Nonetheless, […]

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Can the Parent-Child Bond be Restored After Alienation?

It’s a tale as old as time. Divorced parents bash each other in hopes of garnering favor with their child during a divorce or custody dispute. At some point the child, becomes so exposed to the bashing, blame and ill-will from one parent toward another that the child becomes disenchanted with the other parent; the relationship begins to break down, sometimes, irreparably.

25487205 – unhappy family and child custody battle concept sketched on sticky note paper

This strategy is known as parental alienation, and is being increasingly tossed around in Court battles – sometimes by a truly harmful parent who has exploited their child for a litigation win or as some sort of perverse retribution, and sometimes, it is levied against a parent legitimately attempting to protect their child from abuse or neglect.

However, in cases of true alienation, it is clear that it is injurious to all involved. University of Texas psychologist Richard Warshak, author of Divorce Poison: Protecting the Parent-Child Bond from a Vindictive Ex explains that it’s typically the emotionally healthier parent that is rejected, whereas the alienating parent thinks it acceptable to use the child as a form of punishment for the other parent. Warshak characterized it as a form of abuse toward both parent and child.

Still, as Eric Solotoff blogged in late 2012, the American Psychiatric Association board of trustees will still not go so far as to characterize Parental Alienation Syndrome as a mental illness in the DSM 5 (released in May 2013).

Yet, given the grave effects of parental alienation on both parent and child, it is no surprise that Courts are taking aggressive steps to try to restore the parent-child bond. Experts advise that alienation requires an order from a Court to allow a manipulated child time to bond with the alienated parent.

Sometimes, this will mean reunification therapy for the child and alienated parent, perhaps beginning once a week, and then gradually increasing. The therapist may ultimately place the child and parent in a “real-life” situation, like having the therapy occur in a diner, or at the park. Eventually, the parent may have parenting time alone with the child for an increasing amount of time as the relationship progresses.

For more extreme cases of alienation, where the child is completely past the point of even being open to conventional reunification therapy, the Court may order an intensive, immersion therapy program such as Stable Paths, which is described on its website as an “intensive therapeutic reunification intervention for families impacted by separation resulting from high-conflict divorce, parental alienation, and familial abduction.”

There, the families essentially move on to a tranquil campus, and immerse themselves in therapeutic activities together, such as horseback riding, cooking, sports and games. The goal is to create new memories and re-establish existing bonds and attachments in hopes of repairing the relationship. Each family leaves with a treatment plan for reunification.

The most extreme cases, however, may warrant a complete overhaul to the custody arrangement. Judges may award primary custody of the child to the alienated parent in an effort to extract the child from a toxic situation and reestablish the bond with the other parent.

In 2012, in Milne v. Goldenberg, the Appellate Division reaffirmed the necessity of trial court judges to consider removing a child from the custody of the uncooperative parent and/or imposing temporary or permanent modification of custody. The decision reinforced the holding of New Jersey courts that interference with an ex-spouse’s parenting rights is so inimical to the welfare of the child that judges should transfer custody when the non-compliance puts parent/child relationships at risk:

[T]he necessity for at least minimal parental cooperation in a joint custody arrangement presents a thorny problem of judicial enforcement in a case such as the present one, wherein despite the trial court’s determination that joint custody is in the best interests of the child, one parent (here, the mother) nevertheless contends that cooperation is impossible and refuses to abide by the decree…However, when the actions of such a parent deprive the child of the kind of relationship with the other parent that is deemed to be in the child’s best interests, removing the child from the custody of the uncooperative parent may well be appropriate as a remedy of last resort.

The Milne court reinforces that the Rules of Court provide for a change of custody as a remedy for recalcitrant parents. R. 5:3-7(a)(6) explains that remedies for violations of custody and parenting time Orders include “temporary or permanent modification of the custodial arrangement provided such relief is in the best interest of the children.”

Turning custody on its head, although seemingly an effective remedy, may prove difficult to swallow for some judges. Even if the Court finds alienation has occurred, it may prove almost impossible to override the child’s wishes, who, by the time the Court is involved, may be a preteen absolutely refusing to have any relationship with the alienated parent.

Accordingly to Psychology Today, House Divided: Hate Thy Father, by Mark Teich, it will take a “sophisticated judge to realize what psychologists might see as obvious: Deep down, the child has never really stopped loving the other parent. He or she has just been brainwashed like a prisoner of war or a cult victim, programmed to accept destructive beliefs until critical thinking can be restored.”

The same sophistication is required when a judge is asked to identify whether a parent accused of alienation is merely attempting to protect his or her child from actual abuse by the other parent. Parental alienation seems to have taken on “buzz word” status in recent years, being used even in cases where there may be a legitimate concern for the child’s safety and wellbeing.

As it stands right now, alienation can be repaired, but it requires judges to:

(1) Differentiate real alienation from legitimate concerns about abuse or neglect;
(2) Order parents to intensive therapy programs and ensure that resulting treatment plans are complied with; and
(3) Overlook the supposed desires of an alienated child to see that he or she has never stopped loving their parent, but has just been brainwashed to accept untrue and very destructive beliefs.
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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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NJ Supreme Court Finds Law Against Discrimination Protects Employees Going Through Divorce

While we do not often, if ever, blog about decisions in the area of employment law, the Supreme Court of New Jersey earlier this week in the decision of Smith v. Millville Rescue Squad held that our state’s Law Against Discrimination precludes discrimination and retaliation against an employee based on “marital status.  The meaning of “marital status” was found to include not only being single or married, but also “employees who have declared that they will marry, have separated from their spouse, have initiated divorce proceedings, or have obtained a divorce”.

The case involved an employee who was terminated from his employment after he told his supervisor that he was having an affair with a co-worker, he was separated from his wife (who was also a co-worker), and was about to commence divorce proceedings.  Notably, the supervisor’s response to learning of such information was that he could not promise it would not have an impact on the employee’s job, and he later indicated his belief that the divorce would be “ugly.”

Written documentation regarding the termination, however, referred only to a corporate restructuring and the employee’s allegedly poor performance.  Notably, the employee testified that during his term of employment he was never subjected to formal discipline, was promoted twice, and received annual raises.

The trial court granted employer’s motion for an involuntary dismissal and, in so doing, found that employee failed to present evidence that he was terminated because of his marital status.  In finding that management properly acted out of concern that the divorce would likely be contentious, the trial judge found that such action did not constitute discrimination pursuant to marital status under the NJ LAD.

The Appellate Division disagreed, finding that “marital status” included being separated and involved in a divorce proceeding.  The Supreme Court agreed.  In so holding, the High Court provided:

The LAD prohibits an employer from imposing conditions of employment that have no relationship to the tasks assigned to and expected of an employee.  It also prohibits an employer from resorting to stereotypes to discipline, block from advancement, or terminate an employee due to a life decision, such as deciding to marry or divorce.  The LAD does not bar an employer from making a legitimate business decision to discipline or terminate an employee whose personal life decisions, such as a marital separation or divorce, have disrupted the workplace or hindered the ability of the employee or others to do their job.  However, an employer may not assume, based on invidious stereotypes, that an employee will be disruptive or ineffective simply because of life decisions such as a marriage or divorce.

The decision makes substantive and practical sense in defining the term “marital status,” which is not defined in the terms of the LAD, itself.  Separately, as noted in a post on this case from our Employment Discrimination Report blog, employers may not rely upon any religious exception for this prohibition.

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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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An Ice Skater is (Wrongly?) Tripped Up by the Exhaustion Doctrine

Davidovich v. Israel Ice Skating Federation, ___ N.J. Super. ___ (App. Div. 2016).  The subculture that is international competitive sport came to the Appellate Division in this case yesterday.  Judge Sabatino wrote a lengthy and scholarly opinion for the panel after the case was argued twice and the panel issued multiple interim orders.  The facts […]

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No Need for a Law Firm LLP to Have “Tail” Insurance, Says the Supreme Court

Mortgage Grader, Inc. v. Ward & Olivo, LLP, ___ N.J. ___ (2016).  Justice Fernandez-Vina issued an opinion in this legal malpractice appeal today, his first opinion in quite some time, due to his illness. It is good that he is back in action. This was an appeal from the Appellate Division’s published opinion, 438 N.J. […]

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Watch Out: Judges Start Getting Creative with Non-Complying Litigants and Obstructers

If I’ve heard it once, I’ve heard it a million times: “why don’t judges enforce their own orders or take hard lines against obstructers?” Many times, litigants feel powerless. Powerless to change anything; powerless to have courts take a firm position in favor of those aggrieved; and, powerless to be heard. Clients and attorneys alike feel this frustration.

This is despite the fact that there are specific rules in New Jersey that apply to non-compliance in the family part. Rule 5:3-7 provides for very specific types of relief in specific actions:

Non-Compliance with Custody or Parenting Time Orders:

(1) compensatory time with the children;
(2) economic sanctions, including but not limited to the award of monetary compensation for the costs resulting from a parents failure to appear for scheduled parenting time or visitation such as child care expenses incurred by the other parent;
(3) modification of transportation arrangements;
(4) pick-up and return of the children in a public place;
(5) counseling for the children or parents or any of them at the expense of the parent in violation of the order;
(6) temporary or permanent modification of the custodial arrangement provided such relief is in the best interest of the children;
(7) participation by the parent in violation of the order in an approved community service program;
(8) incarceration, with or without work release;
(9) issuance of a warrant to be executed upon the further violation of the judgment or order; and
(10) any other appropriate equitable remedy.

Non-Compliance with Alimony or Child Support Orders:

(1) fixing the amount of arrearages and entering a judgment upon which interest accrues;
(2) requiring payment of arrearages on a periodic basis;
(3) suspension of an occupational license or drivers license consistent with law;
(4) economic sanctions;
(5) participation by the party in violation of the order in an approved community service program;
(6) incarceration, with or without work release;
(7) issuance of a warrant to be executed upon the further violation of the judgment or order; and
(8) any other appropriate equitable remedy.

In other words, with most family part actions, the sky is the limit in terms of what remedies can be utilized to secure compliance. Moreover, in other instances of non-compliance not covered by the family part rules, for instance, filing frivolous motions to harass the other party, or failing to make discovery, other rules apply that should serve to get a litigant to do the right thing.

So why the disconnect?

Well, it appears that some judges are beginning to take a hard stance against people who just feel like marching to the beat of their own drums, people without any regard for Orders of the Court, or resultant victimization to the other party.

For example, in August, a New Jersey couple was hit with a $543,000 sanction by a Manhattan judge for interfering with their son’s divorce. Justice Ellen Gesmer said that the couple “orchestrated the litigation” between their son and his wife, caused extensive delays, and launched a legal battle designed to “intimidate” their daughter in law.

The parties were married in 2005, and had one child in 2007. Tragically, the husband suffered a brain aneurysm in 2008, rendering him disabled. The wife initially cared for the husband, but was ultimately pushed out of the picture by his parents, who actually took him to a facility and hid him from the wife for several months in 2009.

When the divorce was filed in 2010, the grandparents ran the show on behalf of the son, and directed the son’s lawyers to delay the custody hearing for as long as possible so that they could pursue 50% custody of their grandchild, based upon the pretense that it was on their son’s behalf. By the end of the litigation, the wife’s legal bills were in excess of $928,000.

The judge ultimately found that the parents “willfully interfered with (their granddaughter’s) development of a positive and loving relationship with her father…(and) purposefully engaged in frivolous litigation.”

The judge also came down hard on the father’s lawyers, ruling that they engaged “in frivolous conduct by repeatedly making misrepresentations and knowingly false statements and claims to the court.” She ordered the lawyers to contribute $317,480.67 toward the wife’s legal bills.
The in-laws were ordered to pay, in total, a whopping $543,000.

Back on the other side of the river, in a recent Somerset County case, two opposing litigants were both ordered to perform community service for what the judge found was their willful non-compliance with their marital settlement agreement. The judge also warned them that they were to comply or face the possibility of sanctions.

It appears that judges are “getting real” about compliance. Whether it means the imposition of counsel fees against an overly litigious party or community service, a more clear message is being sent by these judges that non-compliance will not be tolerated.
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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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Two Days, Two New Law Against Discrimination Opinions From the Supreme Court

In each of the last two days, the Supreme Court issued unanimous opinions involving the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42 (“LAD”).  Yesterday, in Smith v. Millville Rescue Squad, ___ N.J. ___ (2016), the Court ruled that the LAD’s protection against discrimination based on marital status extends to persons who have separated […]

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How New Jersey’s New Emancipation Statute May Affect Graduate School Contribution

With summer just beginning, many people have visions of swimming pools, beaches and family vacations. Others in New Jersey have visions of Sallie Mae, tuition bills and book fees.

After four years of what has become obligatory college contribution pursuant to the mandates of Newburgh v. Arrigo, many parents in the state are then faced with the daunting possibility of an additional 3-4 (maybe more?) years of opening their wallets and contribute toward the cost of graduate school; sometimes for their 24, 25, 26 or 27 year old children who are not yet considered emancipated pursuant to our current laws. Many times, child support also continues during that period.

Indeed, New Jersey courts have recognized that completion of undergraduate education is not the determinative factor for either declaring emancipation or terminating child support. Many times, the determination as to whether child support would continue, and along with it the parents’ obligation to contribute toward the cost of the child’s education, focused largely on the whether the child, is “beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own”.

New Jersey is in fact one of the few states in the country that still requires divorced parents to pay for their children’s college educations. Even fewer require contribution toward graduate school. However, New Jersey remained an outlier in that regard.

For example, in the 1979 case of Ross v. Ross, the Chancery Division declared that the parties’ daughter could not be considered emancipated as she was attending law school after obtaining her undergraduate degree.

As recently as 2010 in Mulcahey v. Melici, the Appellate Division upheld a trial court’s determination that a 23 year old child was not emancipation and was entitled to contribution toward her education costs as well as continued child support. Eric Solotoff previously blogged about this case in his post entitled: I Don’t Have to Pay for My Kid’s Graduate School, Do I?

The New Jersey Emancipation Statute, signed into law on January 19, 2016, is set to take effect on February 1, 2017, and may change the way courts view graduate school contribution.

Whereas previously emancipation was a fact specific inquiry focusing on the level of independence of the child, now, child support “shall not extend beyond the date the child reaches 23 years of age.”

Does this mean that the possible obligation to contribute toward a child’s graduate school education is a thing of the past? If emancipation must occur by the age of 23, and the obligation to contribute hinges on the question of whether the child is emancipated, how could a parent be required to contribute to graduate school?

Another interesting question will be whether an agreement to pay for graduate school at the time of the divorce, pre-statute will be enforced.
Recall also the New Jersey Rutgers University professor who was ordered to pay more than $112,000 for his daughter to attend Cornell Law School in 2014 because he had agreed to contribute in his divorce settlement agreement, but failed to place any cap on tuition.

The enforcement of agreements to contribute toward college is extensively addressed in Robert Epstein’s – Appellate Division Addresses Enforceability of Settlement Agreement as to College in New Published Decision – but it will be interesting to see if the same principles are applied when it comes to graduate school.

We will keep you posted as the case law is decided.
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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

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Appellate Division Addresses Use of Hearsay Statements in Motions

Family law practitioners know that in this area of practice, perhaps more so than in any other practice, hearsay statements are often an important part of motions brought before the trial court for every kind of relief imaginable.  A hearsay statement is a statement made outside of the court that is offered for the truth of the matter asserted.  Unless one of many exceptions apply, hearsay statements are inadmissible.  For example, if mom in her certification filed with a motion asking the court to address parenting time includes statements from the parties’ daughter that mom is asking the court to consider as truth, the daughter’s statements constitute inadmissible hearsay.  In other words, the court should not consider the daughter’s statements when rendering its decision.

As we have frequently written, however, oftentimes anything goes in family law.  Hearsay statements are commonly no exception.  I have heard many times from Family Part trial judges that the rules of evidence will often be relaxed, including the hearsay rule, especially when issues of custody and parenting time are before the court to ensure that the best interests of the child are fulfilled.  It is for that reason why practitioners and litigants often put whatever they can before the trial court to convince the judge to rule in his or her favor.

In Arrowood v. DiBenedetto, a recently unpublished (not precedential) Appellate Division decision, the Court addressed the trial court’s rejection of various hearsay statements from the subject child provided by mom in denying mom’s motion to terminate overnight parenting time with dad because he continued to smoke in the child’s presence against doctor’s orders.  Addressing mom’s application, the Court noted:

What we glean from the record provided is defendant’s most recent motion relied on her daughter’s hearsay statements and a certification from [dad], the content of which is not before us. A trial court generally does not abuse its discretion by not relying on hearsay statements, because there is always a question about the exact content of such statements, especially when they are recounted by a party with an interest of the outcome of a decision. The law controlling the presentation of evidence in our courts excludes hearsay in numerous contexts. We certainly cannot conclude from the scant record before us that the trial court here abused its discretion by not imposing the drastic sanction of terminating parenting time based on hearsay.

Notably, however, the Court suggested that there still may not have been an abuse of discretion had the trial court considered the subject hearsay statements, especially since the matter involved the subject child’s health:

That is not to say we are insensitive to either defendant’s arguments or her frustration. Although she has not provided us with the transcripts or the statement of reasons for the court’s previous orders, at least one order appears to have been based on her firsthand observation. Notions of fairness and confidence in our system of justice often dictate that a court enforce its orders. That would appear to be especially so when a child’s health is at issue. But enforcement motions generally present competing versions of events and often require courts to balance profound competing interests. That is particularly so in family matters involving children and parental rights. That is also why Family Part judges are vested with broad discretion, and why we review their discretionary decisions with deference. Here, the record does not establish such an abuse of discretion.

So what is the takeaway here.  Sometimes the Rules of Evidence apply and sometimes they do not, although there is no specific rule indicating that the evidence rules should not always apply.  In practice, it depends on the factual circumstances, the litigants, the trial judge, and the like.  Especially when a child is at the center of the dispute, as opposed to more straightforward financial issues, a court is more likely to stretch its discretionary muscles to protect the child’s best interests above all else.

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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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Exceptional Circumstances Called for Extension of Discovery to Allow Medical Malpractice Plaintiff to Get a New Expert

Castello v. Wohler, ___ N.J. Super. ___ (App. Div. 2016).  In Medina v. Pitta, 442 N.J. Super. 1 (App. Div. 2015), discussed here, the Appellate Division ruled that a physician who was retired at the time of the occurrence that is the basis for a medical malpractice action cannot serve as an expert witness.  That […]

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Failure to Recreate the District Court Record as Ordered Leads to a Loss on Appeal

Roberts v. Ferman, ___ F.3d ___ (3d Cir. 2016).  Federal Rule of Appellate Procedure 10(c)  deals with the circumstance in which a transcript of a District Court hearing or trial is unavailable.  In such a case, the appellant “may prepare a statement of the evidence or proceedings from the best available means, including the appellant’s […]

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NJ Supreme Court Says Employees Can’t Agree to Shorten Statute of Limitations

Several months ago, I blogged about the Rodriguez v. Raymours Furniture Co., 436 N.J. Super. 305 (Super. Ct. 2014)case. The case addressed an important issue – whether or not an employee’s could enter an agreement to shorten the statute of limitations period from 2 years to six months to assert an employment discrimination claim pursuant to New Jersey’s Law Against Discrimination (LAD). Yesterday, the New Jersey Supreme Court held that the statute of limitations period could not be reduced by agreement.

In reaching this important decision, the New Jersey Supreme Court first discussed the importance of eradicating discrimination in New Jersey. That analysis led the court to conclude that it was against public policy for employees to reduce their right to sue an employer by signing an agreement. Moreover, the court held that if there was a shortened statute of limitations, lawyers presented with potential discrimination cases would not have an opportunity to properly investigate those claims before filing. Lawyers in those cases would need to file immediately to ensure they did not violate the applicable statute of limitations. The Court reasoned that by shortening the statute of limitations, frivolous (not well reattached) claims may be asserted.

Moreover, the Court reasoned that employers have a basis to avoid certain forms of liability if they “investigate” and “address” work-place discrimination. The Court reasoned that if employees had a shortened period to file litigation, the employer would not be afforded the defenses available to them if they properly investigated and addressed the allegations.

Finally, the Court reasoned that shortening the statute of limitations period could negatively affect the use of mediation to settle employment discrimination claims. Mediation is often a useful tool in settling cases prior to their commencement. If the limitations period was shortened, parties may not be able to engage in pre-litigation settlement discussions. Because LAD claims are “fee shifting,” this may make it more difficult to settle cases once they are filed

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Judge Greta Gooden Brown is Temporarily Assigned to the Appellate Division

Chief Justice Rabner announced today that Judge Greta Gooden Brown is being temporarily assigned to the Appellate Division.  That assignment is effective on August 1, 2016. A graduate of Douglass College and Rutgers-Newark School of Law, Judge Brown was nominated to the bench by Governor Corzine and took her seat in Passaic County in 2009.  […]

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APPELLATE DIVISION ADDRESSES ENFORCEABILITY OF SETTLEMENT AGREEMENT AS TO COLLEGE IN NEW PUBLISHED DECISION

The Appellate Division’s newly published (precedential) decision in Avelino-Catabran v. Catabran provides another lesson to practitioners and litigants about the language used in settlement agreements and how such language, if unambiguous and without basis to modify, will likely be upheld in matrimonial matters.  The specific dispute involved college payments for the parties’ older child and child support, but the importance of this decision stems from the enforceable nature of the settlement agreement itself rather than what portion of the agreement was at issue.

Here are the relevant facts that you need to know:

• The parties were married on June 18, 1993 and divorced on August 14, 2002.  A settlement agreement addressing custody and support of the children – 21 and 17 at the time of the appeal – were addressed therein.
• The agreement provided that the parties shared joint legal and physical custody of the kids, with mom being designated as the parent of primary residence during the school year and dad during the summer.
• The agreement also required dad to pay $137 per week in child support, and the parties seemingly agreed to increase the obligation to $800 per month in 2009.
• As to college, the agreement provided that the parties would be equally responsible for “net college expenses – those remaining after the children applied for financial assistance.”  The agreement provided:

• The minor children shall have an obligation to apply for any and all scholarships, student loans, grants and financial aid that may be available to help defray the cost of each child’s attendance at college.  After deductions for scholarships, student loans, grants and financial aid, the parties agree to be responsible for the net college educational costs of the minor children.  Net college cost[s] will be split equally by the parties.  (language was deleted providing that the parties respective obligations were to be determined pursuant to their respective abilities to pay at that time).

• In June 2004, the parties agreed to change the custody and parenting time arrangement, eliminating alternating weekends with the kids living full-time with mom during the school year and with dad during the summer.
• In May 2011, the custody and parenting time arrangement was again changed when mom and her new husband moved to Switzerland with the kids.  To facilitate the move, dad signed a letter at the time providing that mom had sole custody of the kids “[f]or the duration of, and subject to, their residing in Switzerland.”
• After graduating from high school, the oldest child decided to attend NYU starting in Fall 2012.  Total cost of attendance was approximately $62,000, but the school offered substantial financial aid (including a large scholarship, a work study offer, and student loans), the total value of which came to approximately $23,000.  The package also included PLUS loans worth approximately $39,000, which were defined by the award letter as “the maximum amount . . . . [a] parent may borrow.”
• The child accepted the full scholarship, work study, and student loans offered to her.  In an email sent at that time, dad asked mom, “how much Parent PLUS Loan should we borrow?” and suggested they borrow approximately $13,000 to cover mom’s share of the balance owed for college.  Mom responded by telling dad to “Please borrow this money on behalf of Catherine (the older child)”.  As a result, dad accepted the available PLUS loan.
• In October, 2012, dad filed a motion seeking to modify child support to reflect a split-parenting arrangement, an order requiring mom to pay half of the child’s net college expenses, and judgment against mom for the amounts due on the PLUS loan and owed to NYU for the Spring 2013 semester.
• Mom argued that no funds were owed by her for college costs because NYU provided the child enough financial aid to cover the total expense.  Financial documents submitted showed that mom’s gross income was approximately $225,000 annually and dad’s was $113,000 (they each earned $73,000 at the time of the divorce).
• In May, 2013, the court entered an order directing mom to contribute to college expenses, but required the parties to submit their financial documents to determine what said contribution should be.  It also directed the parties to submit pay stubs and tax returns to determine child support moving forward.  In so doing, the court found that the financial aid package did not cover the full college cost, the PLUS loans were available only to mom and dad, and dad had established changed circumstances warranting a child support modification.
• Notably, the court found that, based on the above-described emails, mom was aware of the financial aid package and that the loans dad was taking were to cover her share of the college costs.  NYU was also deemed an appropriate college choice by the child because of the “employment opportunities offered to NYU graduates” instead of another school preferred by mom.
• Mom moved for reconsideration of the trial court’s order.  The motions were denied in January 2014.
• During the next series of months, the parties submitted various financial disclosures to the court.  Mom claimed she could not afford to pay for college, and she had filed for Chapter 11 relief in bankruptcy court approximately six months prior.
• In May 2014, the court ordered mom to contribute 50% of the net college expenses.  It also modified child support, directing dad to pay $186 per week for the younger child, and mom to pay $281 per week for the older child (resulting in a net payment of $95 per week to dad).  In so doing, the court found mom had sufficient resources to contribute to college, considering the requisite legal factors (the Newburgh factors) in so doing, and relied on the language of the original settlement agreement calling for an equal payment obligation.
• As for child support, the court, in that same order, found that the children’s respective living arrangements (older child at college and younger child in Switzerland) merited a modification.  In so doing, the court relied upon the Child Support Guidelines, Rule 5:6A, and dad’s support proposal (not included in the order).  In so doing, the court also attached a Child Support Guidelines Sole Parenting Worksheet for two children in a “split-parenting situation” (for multi-child families where one parent has custody of one or more children, and the other parent has custody of the other children).  Support was modified retroactive to October 2012 when dad first filed his motion.
• Mom appealed the relevant order.

i.     Decision on College Expenses

In affirming the trial court’s finding as to college, the Appellate Court found that the lower court properly enforced the unambiguously written original settlement agreement requiring mom to be equally responsible for the kids’ college expenses because there was insufficient evidence of unconscionability, fraud, or changed circumstances (despite mom’s bankruptcy filing) that would merit a deviation from the agreement.  The Court reiterated the obligation of divorced parents to contribute to the higher education of children who are qualified students (notably, the court referenced a general parental obligation to pay – not just for divorced parents, which has been a hot topic of discussion in recent years).

• Notably, because the parties agreed on how to pay for college in the settlement agreement, the trial court was not required to apply all of the Newburgh factors in rendering a determination and was simply required to enforce the agreement/contract as written.
• As to the PLUS loan, the Appellate Division disagreed with mom’s position that the loan was secured for the child because the child was not eligible to apply for or receive the loan herself.  “Therefore, the PLUS Loans cannot be considered a student loan or financial aid available to [the child] for which she had to apply, as contemplated by the parties.  The court correctly determined that [mom] authorized the loan and she was responsible for same.“

ii.     Decision on Child Support Modification

The Appellate Court affirmed the trial court’s determination (without a hearing) that the older child living at college and spending her time off with dad instead of with mom in Switzerland was a sufficient changed circumstance to merit a support modification.  There was also no dispute that the parties’ incomes had substantially changed since the divorce.  The Appellate Court, however, agreed with mom’s position that the trial court erred in calculating child support by:

• Failing to consider the statutory child support factors as required by Jacoby v. Jacoby when a child lives away from home while attending college (at which point the Guidelines no longer apply);
• Failing to properly calculate the support award and issue a clear statement of reasons for same; and
• Relying on dad’s use of the Guidelines and its incorporation by reference of dad’s proposed calculation.

Primarily, the trial court failed to calculate the Guidelines-based amount and specifically provide why it was deviating from same in the best interests of the child.  “[A] court cannot simply attach a guidelines worksheet in lieu of providing a statement of reasons.”  In so holding, the Appellate Court noted, “The court’s statement regarding its abdication to [dad] of its obligation to calculate support did not satisfy its obligation to provide a statement of reasons for its decision.”

Avelino-Catabran provides a useful analysis for practitioners and litigants when it comes to drafting agreements and, in this particular instance, what will and should be included in the college expense portion of same.  Most of the agreements I have seen and drafted are largely similar on this topic and, by excluding the PLUS loans (which were not identified in the agreement) from the equation, the Court ensured that divorced parents cannot essentially abdicate their responsibility to provide for a child’s college expenses.

______________________________________________________

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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Delay in Bringing Suit Is No Bar to Copyright Infringement Claims

How long does a copyright owner have to bring suit for copyright infringement? The answer is three years from the date of the last infringement, regardless of when the very first infringement occurred. Copyright law follows the “separate-accrual rule,” which provides for a new three-year statute of limitations each time an infringement occurs. While the three-year look back period allows copyright owners to maintain actions years or decades after the initial infringement occurs (assuming subsequent infringements), the copyright holder would only be entitled to damages for that three-year period, rather than the entire period of time the infringing activity had occurred.

The Copyright Act (“Act”), 17 U.S.C. § 101 et seq., grants copyright protection to “original works of authorship” that are “fixed in any tangible medium of expression.” § 102(a). Copyright only extends to the expression of ideas – words, pictures, and sounds – but not to the ideas themselves. § 102(b). Copyright protection is afforded upon the fixing of an expression in a tangible medium (writing, sound recording, photograph, sculpture, etc.) and lasts, for works created after 1978, for the life of the owner plus seventy years. § 302(a). A copyright owner enjoys an exclusive bundle of rights, including the right to develop and market derivative works, to reproduce and distribute the work, and to perform or display the work publicly. § 106.

While it is advisable to include the copyright symbol (©) on newly created works, the absence of the symbol on a copyrightable work does not diminish the protections afforded under the Act. Registration of a copyright, while not required for receiving copyright protection, is nevertheless required for bringing a copyright infringement suit and for recovering attorney’s fees in a successful suit. § 411(a); § 412.

Suits for copyright infringement are subject to a three-year statute of limitations: “No civil action shall be maintained under the [Act] unless it is commenced within three years after the claim accrued.” § 507(b). A claim ordinarily accrues when a plaintiff has a complete and present cause of action.

In other words, limitations period generally begins to run at the point when a plaintiff can file suit and obtain relief. A copyright claim, therefore, arises or “accrues” when an infringing act occurs. Each time a defendant commits a copyright violation, the copyright owner has three years to file suit for that violation. The infringer, however, is insulated from liability for earlier infringements of the same work. Thus, each infringing act starts a new limitations period, but the infringer is not liable for infringements that occurred more than three years prior to the filing of suit.

This means a copyright owner who has knowledge of continued infringement does not need to file suit right away, but can wait for any reason or no reason before filing suit. Such was the case in Petrella v. MGM, 134 S. Ct. 1962 (U.S. 2014), which concerned the critically acclaimed movie Raging Bull, based on the life of boxing champion Jake LaMotta. LaMotta shared his story with his good friend Frank Petrella, who filed a copyright registration for a screenplay the duo prepared in 1963.

In 1976, LaMotta and Petrella assigned their rights in the screenplay to a production company, who later sold the rights, including the right to produce a motion picture, to Metro-Goldwyn-Mayer, Inc. (“MGM”). Petrella died in 1981, whose renewal rights to the screenplay reverted to his heirs, who could renew the copyright unburdened by Petrella’s previous assignments. See Miller Music Corp. v. Charles N. Daniels, Inc., 362 U.S. 373 (1960).

In 1991, Paula Petrella, Frank Petrella’s daughter and holder of the renewal rights, exercised her right and renewed the copyright in the 1963 screenplay. After waiting nearly 20 years, Paula filed a copyright infringement suit against MGM in January 2009. Given the three-year statute of limitations window, Paula sought relief only for acts of infringement occurring on or after January 2006. MGM sought summary judgment to have Paula’s complaint dismissed on the grounds of her 18-year delay in bringing suit (laches), claiming it was unreasonable and prejudicial. The district court granted summary judgment to MGM and the Ninth Circuit affirmed the laches-based dismissal.

In reversing the lower courts, the Supreme Court pointed out that the copyright statute of limitations takes account of delay by limiting a plaintiff’s damages to the three-year look-back period: profits made by the infringer in the years prior are untouchable. Prejudice to the defendant is allayed by the alleged infringer’s ability to offset profits by deducting expenses incurred in generating those profits. § 504(b). Moreover, the defendant may retain the return on investment shown to be attributable to its own initiatives, rather than value created by the infringed work, by offsetting plaintiff’s claimed damages by “elements of profit attributable to factors other than the copyrighted work.” § 504(b).

In rejecting MGM’s arguments, the Petrella Court found nothing wrong with the “wait and see” approach: “there is nothing untoward about waiting to see whether an infringer’s exploitation undercuts the value of the copyrighted work, has no effect on the original work, or even complements it.” Litigation is expensive, and even if an owner is aware of an ongoing infringement, the harm caused by the infringement may be too small to justify litigation.

As it stands, laches or delay is no bar to a copyright infringement suit. Should an owner have knowledge of an infringement, but wait years to institute suit, he will not be barred from seeking injunctive relief and disgorgement of profits for the three-year period preceding the filing of the complaint. This way, copyright owners can make the decision about when and whether the expenses of litigation are worth the fight.

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Law Against Discrimination Statute of Limitations Cannot be Shortened by Contract

Rodriguez v. Raymours Furniture Co., Inc., ___ N.J. ___ (2016).  Plaintiff became employed by defendant, who is better known to the public as Raymour & Flanigan.  The employment application that he signed contained a clause that said “I agree that any claim or lawsuit relating to my service with Raymour & Flanigan must be filed […]

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Stark & Stark Volunteers to Help Strike Out Hunger for the United Way

Joseph H. Lemkin, Esq. and the Stark & Stark team are honored to participate in the United Way of Greater Mercy County’s Strike Out Hunger event taking place June 21, 2016 at the Grounds for Sculpture in Hamilton. Volunteers will weigh, pack, seal and box servings of oatmeal to help hungry children in Mercer County.

This year the Strike Out Hunger fundraising goal is $37,500 to create packaged servings of oatmeal for distribution to food banks supporting New Jersey’s at risk children. Every $1000 raised provides 4,000 meals. Donations to the Stark & Stark fund can be made online here. If you would like to volunteer for the event or set up your online fundraising page, please contact the United Way of Greater Mercer County for more information.

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Potential Personal Injury Suit for Imodium

Popular Over the Counter Drug Issued Warning by FDA, may Ignite Lawsuits

Appellate Division Upholds Ultimate Price Against Litigant for Playing Discovery Games

Too often in family law practice, the discovery process by which one litigant is supposed to procure information from the other litigant becomes a frustrating and costly game where the non-compliant party hopes that the other party will simply give up rather than continue the chase down the rabbit hole of information.  Long-term readers of this blog may, in fact, remember Eric Solotoff’s post about the Discovery Dance, where parties can, in fact, “dance if they want to and leave their friends behind”.  Information is deliberately withheld, or incomplete, or ignored, etc.   As opposed to standard civil litigation, however, it often seems that a non-compliant litigant does not pay the price for such misconduct.  While perhaps this simply goes along with family law’s often mis-characterized “Wild West” reputation, what is one party who simply can’t get information from the other party to do when discovery motions are commonly frowned upon as a waste of the court’s limited resources?

This is especially true in cases where one party seeks to modify an alimony or child support obligation.  Trying to get the full financial picture, especially from the party seeking the modification, is often the most difficult challenge of litigating such a matter.  It often becomes even more difficult in cases where either party is remarried and the new spouse has assets, income and the like that the remarried litigant does everything he or she can to shield from the court’s consideration.  This becomes a problem when one party is, perhaps, providing the new spouse with money to hold in a separate account, or the house is solely in the new spouse’s name, and the like.  In other words, the financial picture can be manipulated a dozen different ways and roadblocks structured so that the court never has all of the relevant facts and circumstances upon which to render a determination.

In Null v. Null, a recently unpublished (not precedential) decision from the Appellate Division, an ex-husband’s application seeking a termination of his alimony obligation was dismissed – with prejudice – because of his repeated refusals to comply with discovery requests and related court orders.  Here is a brief recitation of the relevant facts:

• After a lengthy post-judgment procedural history wherein the payor sought to terminate his alimony obligation, the court – in November 2010 – found that he had made an initial showing of “changed circumstances” sufficient to warrant a plenary hearing on his motion to reduce alimony.  Notably, payee claimed that payor had entirely stopped making alimony payments at that point.
• The judge directed that payor produce certain forms of discovery including, but not limited to, his current wife’s most recent three pay stubs.  Payor objected, moving to bar discovery of his new wife’s assets.  The motion was denied because payor was claiming to be employed by a business owned by new wife, and payee claimed that payor had placed businesses and assets he owned in new wife’s name.
• Payor subsequently moved again to block discovery of his new wife’s financial information and was denied.  Payor was ordered to pay counsel fees – the first of many consequences to the payor for his misconduct.  New wife was also ordered to sit for her deposition.
• At her deposition, new wife failed to produce tax returns or pay stubs as previously ordered.  She also failed to produce documents relating to the dry cleaning business payee claimed was owned by her.
• With scheduled trial dates having come and gone, and payor still having failed to comply with discovery, the trial court denied payor’s motion to depose payee and compel her to undergo an employability evaluation.  In so doing, the judge noted that payor took no issue with violating discovery orders, and “unreasonably delayed” payee’s ability to effectuate litigation.  Counsel fees were again awarded for payee.
• In October 2013 – three years after the initial changed circumstances burden was fulfilled – a third trial judge entered an order rescheduling the plenary hearing, and appointing an expert to examine businesses allegedly owned by new wife and operated by payor.  Payee was permitted to depose new wife as to whether payor maintained an equitable ownership of the businesses registered to new wife.  Payee was again awarded counsel fees for a third time.  Payor sought reconsideration and a stay of the October 2013 orders.
• On April 3, 2014, the trial judge dismissed payor’s motions to modify alimony – with prejudice – pursuant to Rule 4:23-2(b) based on payor’s “failure to cooperate with the court’s expert, his failure to file complete Case Information Statements, and his extensive history of failure to timely respond to [payee’s] discovery requests and comply with court orders.”  Payor was also ordered to resume alimony payments at $6,000 per month, and to pay $201,000 in alimony arrears from November 2010 (when the hearing was first scheduled) through March 2014.

While noting that dismissing an action “with prejudice” (a final determination on the merits of the case that precludes further litigation of the matter) because of a party’s failure to comply with discovery is a drastic sanction “generally not to be invoked except in those cases in which the order for discovery goes to the very foundation of the cause of action, or where the refusal to comply is deliberate and contumacious,” the Appellate Division affirmed the trial court’s decision to do so in this case.

In so doing, the Court analyzed the differences between Rules 4:23-2 and 4:23-5 of the New Jersey Court Rules because payor argued that the trial court engaged in an abuse of discretion under 4:23-5 by failing to first dismiss the case “without prejudice” (a dismissal without a decision on the merits that leaves the parties able to litigate the matter in a subsequent action) and then only dismissing “with prejudice” if he failed to thereafter comply.  Disagreeing with payor, the Appellate Court found that while 4:23-5 does, in fact, require the initial without prejudice dismissal, 4:23-2 does not.

Here, payor even acknowledged that he had not been compliant with all discovery demands made, and his position that he and his new wife had provided timely and relevant information was unsupported by the record.  After more than five years of continuous litigation, there was still no clear picture of payor’s earnings, and the trial court found that his “willful and deliberate violations of court orders across a period of more than five years justified dismissal.”  Five years of delay.  At least ten court orders directing payor to provide payee with discovery to which she was entitled.  Still no end in sight.

The Appellate Division concluded, in light of such facts:

• “[T]he trial court reasonably concluded that it was unfair to plaintiff to be interminably delayed in resolving the alimony dispute.”
• “Because the judge’s decision was prompted by defendant’s blatant and continuous defiance of several court orders, we perceive no abuse of discretion in her decision to dismiss defendant’s claim with prejudice.”

While there will always be litigants who believe that the discovery rules and obligations are not worth more than the paper on which they are written with the belief that playing games will provide the optimal result, the trial court’s implementation of available sanctions shows that, at least in some cases, there is a price to pay for such non-compliance.

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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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“Humpty Dumpty” and Recalling a Discharged Jury

Dietz v. Bouldin, ___ U.S. ___ (2016).  When a judge discharges a jury in a civil case, and only thereafter realizes that the jury verdict contains an error, is there anything that can be done?  That was the question in this case, decided today by the Supreme Court of the United States.  By a 6-2 […]

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Public Employees Lose Again, as Supreme Court Upholds Suspension of Pension Cost of Living Adjustments

Berg v. Christie, ___ N.J. ___ (2016).  Today’s decision in this closely-watched case shows once again the importance of the standard of review applied.  In a 6-1 decision by Justice LaVecchia, the Court held that cost of living increases (“COLAs”) in pension payments are not “a non-forfeitable right to receive benefits as provided under the […]

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Appellate Division Finds Payor Spouse Fails to Fulfill Initial Burden of Proof on Cohabitation Claim

As regular readers of this blog may know, cohabitation has been a hot topic of discussion in recent months with several new cases addressing the subject within and beyond the context of the amended alimony law.  With new case law to consume, one question remains constant – how does a payor spouse fulfill his or her initial burden of proving cohabitation so as to justify a period of discovery and a future hearing as to how and whether alimony should be modified (or suspended, or terminated, etc.).

In Robitzski v. Robitzki, another recently issued cohabitation decision from the Appellate Division, the Court affirmed the lower court’s findings that the ex-husband/payor spouse failed to present sufficient evidence of a prima facie claim of cohabitation.  Here are the facts that you need to know:

• The parties were divorced in 2004.  The property settlement agreement required that the ex-husband pay the ex-wife $2,500 in monthly permanent alimony.
• The agreement also provided that alimony “shall be modified or terminated pursuant to New Jersey statutes and case law” in the event it was proven that the ex-wife was cohabiting with another.  The PSA did not define cohabitation, nor did it specify whether applicable “New Jersey statutes and case law” to be analyzed in such a claim would be those existing at the time of the divorce or those existing if and when the ex-husband filed a motion to address the issue.
• From the time of the divorce through the subject motion practice, the ex-wife admittedly maintained a lengthy relationship with a significant other.
• The ex-husband filed his motion after the alimony law was amended in late 2014.  He claimed that the parties were cohabiting under the amended law.
• The ex-wife cross-moved for a declaration that the 2014 amendments did not apply to the alimony obligation at issue.
• In support of his motion, wherein the ex-husband claimed the ex-wife and significant other were interdependent upon each other, he claimed that they held themselves out as the “equivalent” of spouses, and provided various items posted publicly on Facebook by the significant other containing photos and commentary of various family and social activities that the significant other engaged in with the ex-wife and her children.  The children referred to the significant other as “Pap Thom.”
• In opposing the motion, the ex-wife certified that the significant other only spent approximately 100 nights out of the year overnight with her, and they maintained separate finances and assets.  She provided copies of bank statements and bills for 2013 and most of 2014 showing the ex-wife paid her bills from her bank account balances, and that there were no deposits from any unaccounted for sources.
• The trial judge denied the ex-husband’s motion, finding that he failed to provide proof of financial interdependency, and the court did not consider the Facebook postings (which the judge deemed inadmissible hearsay and substantially unauthenticated).  The judge also denied application of the amended law to the present matter.
• Notably, however, limited discovery was granted ordering the significant other to provide a certification addressing his independent living arrangements – including the length of his lease or whether he owns the home, whether he and the ex-wife are co-owners or co-tenants, and whether he lives alone and how he pays for his current living arrangements.  The judge also ordered the ex-wife to provide an accounting of her household expenses, including how such expenses were paid for in 2012.

In addressing whether the amended law or pre-amended law applied, the court declined to resolve the issue for multiple reasons including that the settlement agreement language was ambiguous as to what law should apply.  In language that practitioners thirst for, even if an unreported (not precedential) decision, the Court notably provided:

          We recognize that the new statute eliminates the modification of alimony as a remedial alternative to termination or suspension upon a finding of cohabitation.

This language will surely provide some degree of guidance, although it is not likely the end of what we will hear about whether modification can still occur.

Ultimately, the court held that whether the new or old law applied, the ex-husband still failed to fulfill his initial burden.  The reasoning was as follows:

• The ex-wife attested to spending essentially a weekend of overnights each week with the significant other – “far less than the majority of days of the year.”  In so doing, the court noted:

          Although we do not treat the frequency of overnights as a dispositive “litmus test” for cohabitation, (and are mindful that subsection (n) of the new statute, if it applied, expressly disallows such per se reasoning) their infrequency here is certainly a significant consideration that bolsters the trial court’s conclusion that a prima facie case has not been presented.

• The Court acknowledged that the Facebook postings reflected that “he and the ex-wife take part with one another in a variety of social and family activities, go on vacations together, and attend graduation ceremonies, family gatherings and other such events together.”  The Court noted, however, the postings – even had they been considered by the trial court – were not enough.
• The Court, added, however, “Even so, the present record lacks any evidence that the couple’s finances are intertwined or that the ex-wife is financially dependent upon the significant other.”  No proof of joint bank accounts or other joint asset holdings or liabilities.  No proof of shared living expenses.  No proof of any enforceable promise of support.  Little proof of shared household chores with “the exception of occasional snow removal”.  Notable, however, is the level of potential difficulty in the ex-husband establishing financial inter-dependency on his initial motion without discovery beyond the limited documents provided by the ex-wife.
• Concluding its opinion, the Court commented that the ex-husband could make a future application with supplemental proofs that the couple resides together more frequently, or that their lives and finances are “actually more intertwined than what the present record suggest[ed].

Robitzski presents an interesting dilemma for practitioners and litigants looking to fulfill the initial burden of proof associated with a cohabitation claim.  How much is enough?  What is enough?  Every judge will look at the case differently.  Each case has its own set of facts where one component may weigh more heavily than another.  Only time will tell if a valid claim has been raised.

_______________________________________________________

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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