Due Process Requires Counsel for an Indigent Parent in a Private Adoption Case That Would Terminate Parental Rights

In re Adoption of a Child by J.E.V. and D.G.V., ___ N.J. ___ (2016).  In this unanimous opinion, authored by Chief Justice Rabner, the Supreme Court ruled that an indigent parent who faces the termination of her parental rights in a private adoption proceeding has a right to appointed counsel under the due process guarantee […]

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Interference with Employment: A New Form of Domestic Violence

I previously blogged on economic abuse as a form of domestic violence in a post titled Financial Abuse: The Invisible Wounds of Domestic Violence. Although occurring in approximately 98% of all domestic violence situations according to National Network to End Domestic Violence, economic abuse is not what most people think about when they hear the term “domestic violence”.

Recently, the unpublished decision of C.G. v. E.G. addressed interference with employment as a harassing and coercive form of domestic violence. In this matter, the defendant intentionally attempted to obstruct and interfere with plaintiff’s new employment by calling her place of work without her consent, bothering her employer as well as her employer’s wife, and embarrassing plaintiff by alleging that she and her employer were having an affair.

Judge Jones defined economic harassment as “including purposeful acts which a defendant perpetrates while intending that such acts either (a) impair or obstruct a plaintiff’s actual or prospective job or job-related duties, or (b) threaten to do so with the purpose of controlling [someone], and/or pressuring or intimidating [someone] into submitting to [their] demands or wishes.” Judge Jones went on to describe this behavior as “fear-inducing to a victim of physical abuse” and that “there are arguable few threats more potentially harassing and coercive than threatening one’s livelihood or employment.”

So what encompasses purposefully interfering with another’s employment?

(1)        Directly threatening to contact the victim’s place of employment and attempting to get the victim fired, either by making false allegations, or improperly publicizing private, personal and embarrassing information about the victim;

(2)        Actually contacting the place of employment and following through with actions designed to damage the victim’s status, and stability at his/her job; and

(3)        Repeatedly appearing uninvited at the victim’s place of employment and causing a disturbance, or otherwise acting in a manner which is disrespectful of, and/or embarrassing to, the victim, and disruptive to the victim’s job responsibilities and performance, and/or standard business operations.

The abusers underlying behavior, while an obvious form of harassment, is often times done as a way to corner the victim into either interacting with the aggressor or submitting to certain demands. Often times the victim, in order to avoid embarrassment gives in to the aggressor’s behaviors to their detriment.

Such interference with employment may constitute both harassment and coercion. The National Coalition Against Domestic Violence has reported that between 35% and 65% of victims of domestic violence are harassed at work by their abusers.

The New Jersey Supreme Court has recognized the right to be left alone in State v. Hoffmann, 149 N.J. 564, 585-85 (1997). Thus, “a person has a basic right to be left alone by an estranged or former spouse or dating partner at his or her place of employment.”

The Court concluded in C.G. v. E.G. that by phoning “plaintiff’s place of employment against plaintiff’s wishes, with the purpose and tactic of causing her harm as expressed and desired in his text message, and/or otherwise wearing plaintiff down into submission”, defendant “knew or should have known that he was improperly encroaching on Plaintiff’s new employment, while potentially subjecting her to public embarrassment in front of her employer and co-workers” and that these actions constitute harassment.

Additionally, defendant’s actions constitute a new form of domestic violence, coercion. In August 2015, the New Jersey Legislature amended the Domestic Violence Act to include “coercion”.

Coercion is defined as “threats made to unlawfully restrict another’s freedom of action to engage or refrain from engaging in conduct by threatening to:

(1)        Inflict bodily injury on anyone or commit any other offense;

(2)        Accuse anyone of an offense;

(3)        Expose any secret which would tend to subject any person to hatred, contempt or ridicule, or to impair his credit or business repute;

(4)        Take or withhold action as an official, or cause an official to take or withhold action;

(5)        Bring about or continue a strike, boycott or other collective action, except that such a threat shall not be deemed coercive when the restriction compelled is demanded in the course of negotiation for the benefit of the group in whose interest the actor acts;

(6)        Testify or provide information or withhold testimony or information with respect to another’s legal claim or defense; or

(7)        Perform any other act which would not in itself substantially benefit the actor but which is calculated to substantially harm another person with respect to his health, safety, business, calling, career, financial condition, reputation or personal relationships.

Interference with one’s employment can be considered both harassment and coercion, the latter expanding the prior definition of domestic violence to give victims more alternatives for protection against their abusers.

If you or someone you know is a victim of domestic violence, contact your local law enforcement and/or the confidential and anonymous National Coalition Against Domestic Violence Hotline at 1-800-572-7233.

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Trial Courts May Not Take Away a Jury Trial as a Sanction for a Rule Violation

Williams v. American Auto Logistics, ___ N.J. ___ (2016).  Parties who fail to follow procedural rules are a source of frustration to busy trial judges.  As Justice Fernandez-Vina noted in today’s opinion for a unanimous Supreme Court, courts have “a panoply of sanctions in [their] arsenal” to redress violations of procedural rules.  In this Special […]

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“Time of Application” Rule in Municipal Land Use Law is Construed in Favor of Developers

Jai Sai Ram, LLC v. South Toms River Planning and Zoning Bd., ___ N.J. Super. ___ (App. Div. 2016).  As Judge Reisner stated in her opinion in this case today, before the Legislature amended the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. in 2010, “our courts applied the ‘time of decision’ rule, under which […]

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Supreme Court Grants Review of Two TCCWNA/CFA Class Certification Decisions

The Supreme Court has granted certification of class certification decisions in two cases under the Consumer Fraud Act, N.J.S.A. 56:8-1 et seq., and the Truth in Consumer Contract, Warranty, and Notice Act, N.J.S.A. 56:12-14 et seq.  One of the cases, Dugan v. TGI Friday’s, Inc., 445 N.J. Super. 59 (App. Div. 2016), was discussed here, […]

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Supreme Court Will Review OPRA Metadata Case

The Philadelphia Inquirer reports that the Supreme Court has granted review of the Appellate Division’s decision in Paff v. Galloway Tp., 444 N.J. Super. 495 (App. Div. 2016).  That decision was discussed here.  The Open Public Records Act (“OPRA”) requestor plaintiff there sought logs of emails (not the emails themselves, which defendant admitted could have […]

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Blatant Self-Promotion (Perhaps Soft-Pedaled by Borrowing Another Blogger’s Material, With Attribution)

Each year, the American Bar Association nominates legal blogs for its “Blawg 100″ list.  If this were a post urging readers to nominate this blog, it would include a link to information as to how make such a nomination.  That link would be here.  But such a request would be blatantly self-promoting. Instead, after pondering […]

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Future Advance Mortgages: The Law From the Past Remains the Law (With Perhaps One Exception) in the Present

Rosenthal & Rosenthal, Inc. v. Benun, ___ N.J. ___ (2016).  A future advance mortgage, in broad outline, is a mortgage that secures a loan that is made in stages, rather than all at once.  This case called on the Supreme Court to decide whether and when such a mortgage has priority over an intervening lien.  […]

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The Fine (or Maybe Not So Fine) Line Between Zealous Advocacy and Overzealous Advocacy

In law school, lawyers to be begin to be ingrained engrained with the concept of ethical duty of zealous advocacy.  While this concept used to be in the Rules of Professional Conduct, over time, it has been removed.  It has even been largely removed from the ABA’s Model Rules, upon which many State’s rules have been based upon, other than in statements in the Preamble that say, “As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system” and:

In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system. (Emphasis added).

Nevertheless, time and again you hear the refrain, in defense of an aggressive if not improper action, position, etc. that “I was only being a zealous advocate.”  However, assuming for arguments sake, that the duty of zealous advocacy exists in either some express or implied way, there certainly seems to be a difference between zealous advocacy and overzealous advocacy.  While the former may be appropriate, the latter is often not.  Moreover, it can be very costly, both financially and emotionally for the parties.

In a recent matter, I have seen an attorney send subpoena after subpoena seeking records, that if obtained, would add nothing to her client’s case.  In some instances, it is more than a fishing expedition or seeking a needle in a haystack, as even if the records were produced, no matter what they said, they would have no probative value in the case.  Moreover, when the subpoenas were not responded to or not responded to the their liking, threats of contempt followed.  Even the seemingly appropriate subpoenas seem needless given that a third party with much greater resources had already done an investigation.  There is one thing about leaving no stone unturned when there is a possibility that the due diligence will be fruitful, and quite another when it is a clear waste of time and money, if not harassment of third parties, from the start.  In that case, the “my client just wants to be sure” defense may not really cut it.

What about the lawyer that lies to further their client’s interests.  I have previously done a blog entitled The Lawyer The Liar which discussed this improper practice.

How about taking and litigating a position that is either contrary to the law, contrary to the facts, or both, and refusing to give it up notwithstanding.  I have seen lawyers push these issues because their client wanted to, because they figured they could make money and/or they figured they would wear the other side down and force them to capitulate to be done.   There are many other examples that I am sure my colleagues can add about examples of overzealous advocacy.

When the offender is called on these tactics, they hide behind the “zealous advocacy” shield. The question to ponder is what is a court to do when zealous advocacy crosses the line to overzealous advocacy.  Whether or not this rises to an ethical issue, will a court make the other party whole or at least put a stop to it?  If not, are we not rewarding pushing the envelope?

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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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Third Circuit Bench-Bar Conference in April 2017 in Lancaster, PA

The Third Circuit has posted a “save the date” notice, available here, for a bench-bar conference next year.  The dates are April 19-21, 2017, and the venue will be Lancaster, PA, in the heart of Pennsylvania Dutch country.  This will be the 73rd Third Circuit Judicial Conference.  In addition to the chance to interact with judges, the […]

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Celebrities & Snapchat Feuds: Are Recording Phonecalls Legal?

As most people know, there has been on-going feud between Taylor Swift and Kayne West. Last night, more fuel was added to the fire when Kayne’s wife, Kim Kardashian, went to Snapchat and posted recordings of a conversation between Ms. Swift and Mr. West which purport to show that Taylor was aware of off-colored lyrics in one of Mr. West’s songs, and gave her blessing to include before the album released. To date, Taylor denies giving such approval. Taylor went to her Instagram account soon after, writing: “That moment when Kanye West secretly records your phone call.”

Besides the tabloid juiciness of the story, there is an interesting and very serious issue regarding the legality of the recordings. In many states it is illegal to record a telephone conversation without the consent of both parties participating in the telephone conversation. California, where it is believed Mr. West and Ms. Kardashian reside, is one of these “two-party consent states.” In fact, California has some of the strictest laws when it comes to secretly recording telephone conversations. California provides criminal penalties for not gaining consent from all parties, and additional penalties for disseminating or publishing a recording. In addition, California allows for civil remedies for recording a communication without prior consent.

One of the biggest issues is which state Mr. West and Ms. Kardashian were located when they made the recording. For example, in New Jersey, we are a “one-party” consent state. The New Jersey Wiretapping and Electronic Surveillance Control Act N.J.S.A. 2A:156A-3 permits a party who is participating in the conversation to record the conversation. In my practice as a matrimonial attorney in New Jersey, the issue of recording telephone communications is very common, as estranged spouses often want to record communications of abuse and/or misconduct on the part of the spouse. In those cases, a spouse who is participating in a conversation with their spouse is legally permitted to record said conversation.

That all being said, even if the Mr. West was lucky enough to have initiated the telephone call from a “one-party consent” state, such as New Jersey, Ms. Kardashian may still not be in the clear. New Jersey law is clear in that the party recording the communication must be a party to a communication; in other words, they must participate in the conversation. In the recordings posted by Ms. Kardashian, it does not appear that she participated in the conversation and therefore was not a party to the conversation, making her recording illegal.

At this time, it is too soon to know what if any civil and/or criminal ramifications Mr. West and Ms. Kardashian might face, but I am sure we will all keep a close eye as the drama unfolds.

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Defending a Will Contest

In many of my previous blogs I have discussed the procedure involved in contesting a Last Will and Testament. This blog shall focus on other side of the equation, the defense of a Will contest. Since there are many facets involved in the defense of a Will contest, we shall first focus on what the named Executor or Executrix must do upon being served with a Verified Complaint seeking to contest the validity of a Last Will and Testament. For the purposes of this blog, I will assume that the Executor had already taken the necessary steps to admit to probate the Last Will and Testament of the decedent.

A Will contest is typically commenced by way of a Verified Complaint filed by the contestant which seeks to invalidate the Last Will and Testament which has been admitted to probate. For the purpose of this blog, it will be assumed that the executor had already sought to admit the Last Will and Testament to probate, and moreover, had provided appropriate notice to all heirs or potential beneficiaries of the Estate. As discussed in previous blogs, a Will contest must be filed within the relevant statutory period, which is four months for in-state residents and up to six months for out-of-state residents. Provided that Plaintiff has complied with the relevant statutory authority by timely filing the Will contest, the Executor needs to take several actions in order to respond to the complaint.

The first step an executor should take is to contact the attorney who drafted the Decedent’s Last Will and Testament. This attorney is an essential witness when seeking to defend the Last Will and Testament against a Plaintiff’s challenge. While this attorney may be involved in defending the Will, he/she cannot be the sole attorney representing the Estate as he/she is also a fact witness. Should this attorney have other members in his/her office who may serve as defense counsel, then you may retain this office to proffer the defense. If not, then you will have retain other counsel who can represent the Estate in defending the Will. The good news for an Executor as a proponent of the Last Will and Testament is that your counsel fees for defending the validity of the Will will be paid by the Estate. As such, an Executor should not have to pay out of pocket for any counsel fees for the defense of the Last Will and Testament. The only time that an executor could potentially be exposed to paying counsel fees would be at the conclusion of the matter if it was determined that the executor acted in bad faith and caused the Last Will and Testament to be executed. Otherwise, all counsel fees incurred in defending the challenged Will will be paid by the Estate.

After you have retained an attorney to help you defend the Will, the next step would be to file an Answer to the Verified Complaint. Once this has occurred, you should now commence, with the assistance of your attorney, the process of locating witness who may possess relevant knowledge with regard to the Decedent’s health and mental condition at the time that the Last Will and Testament was executed. A starting point would be the individuals who witnessed the execution of the Last Will and Testament. Furthermore, treating physicians, family, friends, or other individuals who made observations of the Decedent at the time that the Will was executed are likewise essential. It is preferable at this early juncture in the litigation to start organizing these witnesses and obtaining their information, as their importance will become very apparent during the Will contest.

After you have located witnesses who may have relevant knowledge, the next step is to start marshaling and obtaining documents with regard to assets of the Estate. Typically, the litigation attorney will assist you in obtaining information related to the Estate so that an informal accounting can be prepared with regard to the Estate’s assets. You will play an active role in this process and thus, will need to cooperate with the attorney.

As discussed in previous blogs, the main causes of action which may be asserted by a party contesting a Will are undue influence and lack of capacity. Both of these causes of action will require witness testimony, medical records, and perhaps an expert witness. The witness testimony will undoubtedly involve the witnesses discussed above, however, may also include the testimony of medical doctors, nurses, and other potential expert witnesses with regard to the capacity of the decedent. Furthermore, financial records may likewise become relevant, as well as other records related to the health and mental well-being of the decedent at the time the Last Will and Testament was executed.

Obviously, defending a Will contest is a daunting task which requires the consideration of a multitude of factors. The earlier you get an attorney involved to assist you with this process, the greater likelihood of your chances of success. As such, I suggest that you consult with an attorney early in this process in order to achieve the best possible result.

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“Insurance Coverage and Undersized Broiler Chickens”

Phibro Animal Health Corp. v. National Union Fire Ins. Co., ___ N.J. Super. ___ (App. Div. 2016).  When it comes to whatever the judicial opinion equivalent is of “click-bait,” few if any court rulings can top Judge Sabatino’s opening sentence in his opinion for the Appellate Division in this case yesterday.  “This case is about […]

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The Appellate Division Goes Back on Tour

It was announced today that on July 25, a panel of the Appellate Division, consisting of Judges Guadagno and Vernoia, will sit at the Monmouth County Courthouse in Freehold.  The Appellate Division normally sits in Newark, Trenton, Morristown, and Hackensack.  But occasionally oral arguments are held elsewhere, in order to allow the public to watch […]

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A “Graduating Class” Means a Group of Students Who Complete an Educational Program and Receive Diplomas or Certificates in the Same Given Year

In re Revocation or Suspension of Provisional Accreditation of Eastwick College LPN-to-RN Bridge Program, ___ N.J. ___ (2016).  As Justice Patterson reminded us in her opinion in this case today, an administrative agency’s interpretation of its own regulations receives deference from reviewing courts unless the interpretation is “plainly unreasonable.”  Today, however, a unanimous Supreme Court […]

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Does Recent 9th Circuit Court of Appeal Decision Make It a Crime to Share Passwords to Online Accounts?

On July 5, 2016, the United States District Court of Appeals for the Ninth Circuit issued a decision in the case entitled United States v. Nosal. The case involved a former employer and others using the password of another employee to hack into his former employer’s database in order to access and take information which belonged to his former employer.

The decision has gained a lot of attention and press because Mr. Nosal’s criminal conviction was based upon his use of another employee’s passwords. There are a large number of articles and blog posts warning that the holding in the case could result in the criminal prosecution of an individual who uses a friend’s Netflix or HBO GO password to access those sites. While that could be one result of the decision, I believe the holding in the Nosal case does not currently go that far. Per the Ninth Circuit, “this appeal is not about password sharing. Nor is it about violating a company’s internal computer use policies.” Rather, the case revolves around accessing a protected computer with the intent to defraud as defined in the Computer Fraud & Abuse Act (CFAA), 18 U.S.C. § 1030.

The CFAA imposes criminal penalties upon those who “knowingly and with intent to defraud, access a protected computer without authorization or exceed authorized access, and by means of such conduct further the intended fraud and obtain anything of value….” Id. at 1030(a)(4). The issue in the case falls under the meaning of the first prong of the Act; specifically, what the terms “knowingly and with intent to defraud” and “accessing a protected computer without authorization” mean. The Ninth Circuit Court of Appeals used a very simplistic and plain meaning to answer that question. It held, simply, that it means accessing a protected computer “without permission.”

The reason legal commentators, bloggers, and attorneys are pondering whether or not the decision applies to the Netflix accounts is because Netflix only licenses to the holder of each password. Netflix does not contractually give permission to an authorized user’s “friend” to use their password and access Netflix’s databases with its online content. Applying the simplistic “without permission” definition could result in a criminal case against a non-authorized user utilizing the authorized user’s password. While this could someday be the ultimate interpretation, the Court’s own limitations as set forth in the preceding paragraph seem to negate that argument.

Nevertheless, until the issue is clarified, unauthorized users using their friends’ passwords should be forewarned. District Courts or Circuit Courts of Appeal, including future deacons out of the 9th Circuit, may hold that the unauthorized logging into Netflix or other computer databases are in violation of the CFAA which, in turn, could lead to criminal prosecution. As it stands now, the law appears to be in flux and developing as technologies advance.

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Another Mount Laurel Case for the Supreme Court?

In re Declaratory Judgment Actions Filed by Various Municipalities, ___ N.J. Super. ___ (App. Div. 2016).  It has been 41 years since the Supreme Court issued its original Mount Laurel opinion.  Southern Burlington Cty. NAACP v. Mount Laurel Tp., 67 N.J. 151 (1975) (discussed here).  Judge Fasciale’s opinion yesterday in the attached case offers a […]

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Supreme Court Grants Review in Hurricane Sandy Case

The Supreme Court announced yesterday that it has granted certification in Oxford Realty Group Cedar v. Travelers Excess & Surplus Lines Co.  The question presented, as framed by the Supreme Court Clerk’s office, is “Under the terms of this insurance policy, is plaintiff entitled to coverage for the cost of debris removal in addition to […]

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Exacting Revenge On Your Ex May Not Be So Sweet After All

Cersei Lannister may seem like she has it all: unbridled brutality, a mountain of a protector, disfavor in the Realm and a growing list of enemies she’s collected along the way. After all, she’s just destroyed her enemies in one fell swoop as she blew up the Great Sept of Baelor. Although Cersei seemed to have finally served her sweet revenge, she comes to discover that bittersweet aftertaste that just won’t quit.

Cersei soon found out that the fleeting rush she got from all the carnage and destruction (just a few of her favorite things) gave way to a mixed bag of emotions; on the one hand she finally got her seat on the Iron Throne, but on the other hand, she had lost all of her children in the process.

HBO.com

Apparently, Cersei’s conflicted feelings on the subject of revenge are not unique to her.
A recent study in the upcoming edition of the Journal of Experimental Social Psychology found that the emotional consequences of revenge “are a mixed bag, in that we feel both good and bad when we take revenge on another party.”

Take the good: we love revenge because we punish the offending party. Apparently, the brain areas in charge of making crime and punishment judgments overlap with areas that process reward, which explains the pleasure in punishment/ revenge.

But then there’s the bad: it reminds us of the original act. To put that kind of pain it in context, think about the revenge your stomach exacts the morning after you eat an entire pizza. We’ve all been there.

In fact, just ask anyone who has slashed their cheating ex’s tires. Or take the story recounted by Marylin Stowe, one of England’s top divorce lawyers: Lady Graham Moon has gone down in English family law history for acting like a milkman, except that she was delivering to her neighbors the contents of her estranged husband’s valuable wine cellar.

The act of revenge may feel good in the moment, but soon thereafter, people are reminded of how they felt to have evoked the desire for revenge to begin with.

The stakes become even higher when that cheating ex and you share children together. Indeed, the Journal of Experimental Social Psychology study found that feelings of revenge support endless cycles of retribution that may emerge in the context of conflicts between families. And we all know how that can turn out for parents and children alike.

So take a page out of the book of Cersei, the Queen of Family Dysfunction, and now, the Seven Kingdoms. She should have listed to Mark Twain who said: “Therein lies the defect of revenge: it’s all in the anticipation; the thing itself is a pain, not a pleasure; at least the pain is the biggest end of it.”
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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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The Interplay Between Personal Firearm Forfeiture and Domestic Violence Proceedings Gets Some Clarification from the NJ Supreme Court

Recently, the New Jersey Supreme Court provided some important clarification with regard to the issue of firearm forfeiture in the wake of an arrest and firearm seizure pursuant to the New Jersey Prevention of Domestic Violence Act (NJPDVA), N.J.S.A. 2C:25-17 to 35.  In In the Matter of the Application of New Jersey for the Forfeiture of Personal Weapons and Firearms Identification Card Belonging to F.M., the Supreme Court squarely addressed the following important question:  Under what circumstances can a personal firearm and firearms purchaser identification card seized pursuant to the NJPDVA be forfeited pursuant to the firearms forfeiture statute N.J.S.A. 2C:58-3(c)(5)?

The Facts & Evidence

The firearm owner at the center of this case – “F.M.” – was involved in a Domestic Violence proceeding in March 2010, wherein he was named defendant.  As a result of the domestic violence incident, F.M.’s personal firearm and identification card were confiscated by the police.  In addition to the domestic violence proceedings, F.M. was charged with simple assault.  Notably, F.M. himself worked as a police officer and, therefore, had not only a personal weapon but also a service weapon.  At a hearing to determine whether a Final Restraining Order should be entered against F.M. for the protection of his wife, the Court decided against the entry of same and dismissed the case against F.M.

Although one might think that, upon dismissal of an FRO, any weapons seized in connection with the restraining order are automatically returned to the defendant, this is not always the case.  The State may move to forfeit a personal weapon and identification card under N.J.S.A. 2C:58-3(c)(5) even if the domestic violence case under which the weapons were initially seized is dismissed.  This is precisely what the State did in the instant case.  Reserving on the State’s motion, the trial court judge noted that the court would issue a decision on the final disposition of F.M.’s personal and service weapons after he completed a batterer-intervention program and attended individual counseling.  F.M. did so, and subsequently filed a motion seeking the return of his personal weapon, the weapon at issue in this matter.

The State opposed F.M.’s motion, arguing that the return of F.M.’s personal firearm and identification card would not be in the interest of the public health, safety, or welfare.  To make out its case, the State relied upon the testimony of F.M.’s wife, who testified as to F.M’s history of violence against her, as well as the arresting office who responded to the March 2010 incident and confiscated F.M.’s personal firearm and identification card.  Interestingly, the State also relied upon the testimony of two licensed psychologists who had previously performed Fitness for Duty (FFD) evaluations on F.M., and had interviewed F.M.’s wife in connection with same.  Although their evaluations were directly applicable to the issue of F.M.’s service weapons, their testimony was permitted to address the issue of forfeiture of his personal weapon as well.  One of the psychologists had concluded that F.M. was not fit for full duty and recommended that he be disarmed because he was a “danger [] to himself or others.”  The other psychologist concluded that, although he couldn’t be classified as having a personality disorder, F.M. exhibited elements of various personality disorders that negatively impacted his ability to effectively serve as a police officer; he concluded that F.M. suffered from “a nearly paranoid sense that everyone was out to get him, poor impulse control, poor anger control, and poor judgment.”  He also stated that he believed the public would be endangered if F.M. continued to serve as an armed police officer and that F.M was not fit for duty.

The Path to the N.J. Supreme Court

Largely because there were no findings of clinical mental illness or personality disorder – but rather only elements of same, or what the trial court judge called “subclinical personality styles and tendencies” – the trial judge ordered the return of the personal weapon and identification card.  Interestingly, the Court rejected the psychologists’ conclusions as to the credibility of F.M.’s wife, because the judge him or herself had had more “exposure” to the altercations between F.M. and his wife as the Family Part Judge handling their domestic violence proceedings. The Family Part judge also seems to have concluded that F.M.’s wife had played a part in instigating the dispute that led to the seizure of the weapon, and that there was no prior instance during which F.M. had actually used a gun to harm anyone.  The Appellate Division largely agreed with the Family Part judge’s analysis and findings, noting that deference is accorded to Family Part judges given their intimate involvement with the facts of family part cases.  The State then appealed to the Supreme Court, arguing that the Family Part judge had misapplied the law.

The N.J. Supreme Court Decision

The N.J. Supreme Court agreed with the State as to its contention that the Family Part judge had misapplied the law and, in according the Family Part deference, the Appellate Division had erred.  In making its decision, the Court looked to the applicable statute which describes who may obtain a personal firearm and identification card, N.J.S.A. 2C:58-3(c), which states:

No person of good character and good repute in the community in which he lives, and who is not subject to any of the disabilities set forth in this section or other sections of this chapter, shall be denied a permit to purchase a handgun or a firearms purchaser identification card, except as hereinafter set forth.

The statute goes on to list 10 “disqualifiers” for purchase of a personal weapon and issuance of a firearms purchaser identification card, including:

(1)  To any person who has been convicted of any crime, or a disorderly persons offense involving an act of domestic violence as defined in section 3 of P.L. 1991, c.261 (C.2C:25-19), whether or not armed with or possessing a weapon at the time of such offense; [. . .](5) To any person where the issuance would not be in the interest of the public health, safety, or welfare; [. . .].

Relying on prior decisions, the Court noted that, in order to forfeit a weapon under subpart five (5) of the statute, the State only had to prove by a preponderance of the evidence (a lower evidentiary standard equating to “more likely than not”) that an individual’s possession of a firearm would be against the public health, safety, or welfare.  The purpose of the low evidentiary standard is, perhaps obviously, “to prevent firearms from coming into the hands of persons likely to pose a danger to the public.”

Contrary to the holding in the lower courts, the Supreme Court found that the  testimony of F.M.’s wife, the responding officer, and the psychologists – despite their lack of finding a clinical mental illness or personality disorder – suggested that F.M.’s possession of a firearm would indeed more likely than not pose a danger to the public.

Takeaways for the Family Law Practitioner

Those of us who practice family law are well versed in the precedential law that says that the Appellate Division and Supreme Court accord great deference to Family Part Judges.  In this case, however, the Supreme Court reminded us that, although such deference is given to Family Part judges as to the facts of a case, a judge’s legal determinations are of course not immune to review by the higher courts.  A Family Part judge may have a greater “feel” for the case given its familiarity with the parties and issues, but – and perhaps this is stating the obvious – that doesn’t mean their application of the law to the facts must be given deference on appeal.  In this case, the Family Part overlooked the plain language of the statute and appropriate evidentiary standard, and instead made its own justifications for returning the personal weapon and identification card to the defendant.

For those involved in domestic violence matters, this case also serves as a reminder that weapons forfeiture under that statute is black-and-white when an FRO is entered.  If a final restraining order is entered, under subpart (1) of N.J.S.A. 2C:58-3(c), the defendant’s firearm and identification card will be forfeited, something that must be taken into consideration if you are representing a defendant who is a licensed firearm owner.

And yet, if the domestic violence case is dismissed, the issue becomes more gray.  Even if the domestic violence matter that led to the initial confiscation of a firearm and ID card is dismissed against a firearm-owning defendant, the case discussed here makes clear that weapons can still be forfeited if there is credible testimony showing by a preponderance of the evidence that the defendant may be a danger to the public.  Notably, the outcome here also shows that, even if a plaintiff’s testimony in his or her domestic violence matter is insufficient to sustain the entry of a restraining order under the NJPDVA, his or her testimony may be used to prove that the defendant’s firearm and identification card should be forfeited on other grounds.

Whether you represent the party pursuing a restraining order or defending against one, this is important knowledge to have when dealing with a firearm-owning client or adverse party in a domestic violence matter.

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

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“Purple Prose” Makes the Appellate Division See Red

McRae v. New Jersey Transit Bus Operations, Inc., 2016 N.J. Super. Unpub. LEXIS 1598 (App. Div. July 8, 2016).  Appellate advocates like to write in ways that make an impact.  But sometimes they can go too far.  In today’s non-precedential, per curiam opinion in this appeal from a labor arbitration ruling, Judges Fisher and Fasciale […]

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The 2016-2017 General Assignment Order

Today, Chief Justice Rabner issued the 2016-2017 General Assignment Order, which is available here.  This document contains the assignments of all Superior and Tax Court judges for the coming term. Relevant to the Appellate Division, the General Assignment Order continues Judge Messano as Presiding Judge for Administration and Judge Sabatino as Deputy Presiding Judge for […]

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Shareholder & Associate Contributed to Published Book Moonshiner to Craft Distillery, Leading Lawyers on the Business of Distilling

Stark & Stark Shareholder Dolores R. Kelley, Esq., with contributions from Associate Marshall T. Kizner, Esq., authored a chapter in the book Moonshiner to Craft Distillery, Leading Lawyers on the Business of Distilling (Inside the Minds™)[1], which was published by Thomson Reuters. The chapter they authored, entitled “Ensuring Distillery Compliance Requires an Interdisciplinary Approach,” explains the effect of the evolution of distillery laws on the craft distillery industry.

The authored chapter reviews considerations for craft distillers opening for business, including the impact of licensing, local and federal law, financing, and trademark issues on the startup process. Dolores and Marshall impart important advice on navigating the legal obstacles faced by new distilleries in order to successfully open a craft distillery’s doors. Furthermore, the chapter offers insights on compliance issues businesses need to consider in order to ensure its continued long-term success.

Shareholder Dolores R. Kelley is a member of Stark & Stark’s Business & Corporate, Real Estate, Zoning, & Land Use, and Beer & Spirits Groups. Among other things, she concentrates her practice in the representation of start-up and emerging companies, breweries, and distilleries. Associate Marshall T. Kizner is a member of Stark & Stark’s Bankruptcy & Creditors’ Rights and Beer & Spirits Groups. He focuses on assisting breweries, wineries, and distilleries in state and federal licensing, equipment leasing, real estate leases, land use and zoning issues, financing, trade secrets, and employment matters.

The book Moonshiner to Craft Distillery, Leading Lawyers on the Business of Distilling, is part of a series published through Thomson Reuters entitled Inside the Minds™, with each book delving into the specifics of a certain area of law.

To purchase a copy of Inside the Minds™, Moonshiner to Craft Distillery, Leading Lawyers on the Business of Distilling, click here. For more information on Stark & Stark’s Beer & Spirits practice group, contact Ms. Kelley at dkelley@stark-stark.com.

 

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[1] 2016 Thompson Reuters/Aspatore

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All Apologies and the Distribution of a Famous Guitar

Perhaps Kurt Cobain knew when writing the song “All Apologies” that one day his daughter would be embroiled in a nasty divorce battle.  While the lyrics, “Married, Buried, Married, Buried”, may not sound uplifting, they are undeniably classic Nirvana.  Fans of the band would largely agree that the most well known live performance of the song was the acoustic version played during the band’s “Unplugged in New York”, which took place shortly before Cobain’s death.  Now it is the guitar used by Kurt during that performance which lies at the center of Frances Bean Cobain’s divorce from her husband.

Specifically, Frances’s husband is in possession of the guitar – thought to be worth several million dollars – and refuses to return it to her while alleging that she gave it to him as a wedding present.  Not surprisingly, Frances denies ever giving it to him at the start of their short-term marriage, and is taking the position that he has no right to any money from her fortune (Kurt’s estate is valued at approximately $450 million).

With that said, and straight from Seattle to the swamps of New Jersey, how would a court here potentially address the issue?

I Think I’m Dumb, or Maybe Just Happy:  Well, for starters, is there a prenup protecting Frances’s rights and interests in Kurt’s estate and, as part of the estate, the subject guitar?  I don’t know the answer, but even if Frances was blinded by her love for her now soon to be ex-husband, she would hopefully be smart enough to have had some sort of agreement drafted and signed protecting her from the claim now being made (unlike Paul McCartney in his divorce from Heather Mills, for example).  Such agreements often have language addressing so-called separate property and whether separate property is exempt from equitable distribution.  Language regarding interspousal gifts is also common and can be crafted in a way to ensure that even if she did gift the guitar to him during the marriage, it could still remain separate property exempt from distribution.

And For This Gift, I Feel Blessed:  At the heart-shaped box of this matter is whether the guitar was an interspousal gift from Frances to husband during the marriage.  This is essentially what husband is claiming.  In New Jersey, an interspousal gift is subject to equitable distribution.  Husband can take the position that even if the guitar was originally a non-marital asset exempt from equitable distribution (for instance, as an inheritance or gift to Frances, or by agreement), it lost that exempt status and became marital property subject to distribution once she gifted it to him.  If proven, Frances loses the right to claim that the guitar is exempt from equitable distribution at the time of the divorce.  With a guitar worth several million dollars, husband may look at his share of the guitar as the proverbial meal ticket in a short-term marriage where his rights are likely otherwise limited.

Hey!  Wait!  I’ve Got a New Complaint:  To rebut husband’s claim and supporting evidence/testimony that Frances gifted him the guitar, Frances would have to establish that there never was any gift.  In other words, there was no intent by Frances to gift him the guitar – a fact that perhaps she could establish by testifying about how she told husband at the time, and/or at other times during the marriage, that it was her/her family’s guitar, rather than husband’s guitar.  Maybe husband simply took it from the home and is now fabricating the entire story.  Credibility and the surrounding factual circumstances will play a large part in the final result.  Also, even if the guitar was ultimately deemed to be an interspousal gift, Frances may be aided in the actual allocation of the asset by New Jersey’s equitable distribution factors, especially that regarding who brought the subject property to the marriage.  Keeping the guitar in the Cobain family would seemingly be an important consideration for a family court judge, and may sway any determination regarding whether Frances could ever have intended it to be a gift.

It will be interesting to see how this matter unfolds and ultimately concludes.  Whether the litigant is Frances or anyone else similarly in her shoes, learning the law regarding gifts and equitable distribution may leave the litigant forever in debt to such priceless advice.

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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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*image courtesy of google free images.

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The Supreme Court Answers a Certified Question About Take-Home Toxic Torts

Schwartz v. Accuratus Corp., ___ N.J. ___ (2016).  A “take-home toxic tort” is very different than a take-home final examination or take-out foods.  It refers to a cause of action that arises when an employee works with toxic materials and then brings his (often, but not necessarily always, “his”) clothes home, where someone he lives […]

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Child Pornography and Collateral Estoppel

Doe v. Hesketh, ___ F.3d ___ (3d Cir. 2016).  Today, the Third Circuit, in an opinion by Judge Greenaway, ruled in a case of a child victim of federal crimes related to child pornography, under 18 U.S.C. §2255.  The government had prosecuted a defendant, Mancuso, under that statute, and Mancuso had entered a guilty plea […]

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Twenty One Day Advance Voter Registration Requirement is Held Constitutional

Rutgers University Student Assembly v. Middlesex Cty. Bd. of Elections, ___ N.J. Super. ___ (App. Div. 2016).  This appeal involved the constitutionality of N.J.S.A. 19:31-6.3b, which requires eligible voters to register at least twenty one days before an election in order to be able to vote.  This case came before the Appellate Division in 2014, […]

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