Alter Ego Theory Failed to Sustain Personal Jurisdiction Over Foreign Parent Corporation

FDASmart, Inc. v. Dishman Pharmaceuticals & Chemicals Ltd., ___ N.J. Super. ___ (App. Div. 2016).  Plaintiff filed an action for breach of contract against two defendants, Dishman Pharmaceuticals & Chemicals, Ltd. (“DPCL”), a company based in India, and its United States subsidiary, Dishman USA, Inc.  DCPL asserted that New Jersey courts had no personal jurisdiction […]

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Fee Awards Under Consumer Statutes Can Go Beyond the Extent of a Plaintiff’s Success On His or Her Complaint

DeGarmeaux v. DNV Concepts, Inc., ___ N.J. Super. ___ (App. Div. 2016).  As Judge Manahan stated in his opinion for the Appellate Division in this case, “[t]he issue of reasonbleness of counsel fees has been the subject of numerous decisions.”  This opinion addressed what the panel viewed as an issue of first impression:  “whether prevailing […]

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The New Year’s Resolution Divorce

Our partner in our Chester County, Pennsylvania office, Mark Ashton, just wrote an interesting piece on our Pennsylvania Family Law Blog entitled “”Tis the Season”  about how the time between November 1st and the end of the year used to be the quiet time for new matters and how he has found that this year has been different.  We have found that to be the case, as well, as noted below.

That said, for many divorce attorneys, the busy season starts after the first of the year. For the last few years, I have posted on the phenomenon of the New Year’s Resolution Divorce. For whatever reason, this post has struck a chord and has been both well received and cited by other bloggers. As such, given that the new year is near, I thought I would share that piece again, updated slightly for the new year.

Over the years, I have noted that the number of new clients spikes a few times of the year, but most significantly right after the new year. Out of curiosity, I typed “New Years Resolution Divorce” into Google and got 540,000 results in .29 seconds. While not all of the search results were on point, many were extremely interesting. It turns out that my intuition about this topic was right and that there are several reasons for it.

One article on Salon.com put divorce up there with weight loss on New Years resolution lists. Also cited in this article was that affairs are often discovered around the holidays. Another article linked above attributed it to “new year, new life”. Another article claimed that the holidays create a lot of pressures at the end of the year that combine to put stress on people in unhappy or weak relationships. Family, financial woes, etc. associated with the holidays add to the stress. Turning over a new leaf to start over and improve ones life was another reason given. This seems to be a logical explanation for a clearly difficult and perhaps heart wrenching decision.

In my experience, people with children often want to wait until after the holidays for the sake of the children. There is also the hope, perhaps overly optimistic, that the divorce will be completed by the beginning of the next school year. These people tend to be in the “improving ones life” camp.

So as divorce lawyers, we hope to avoid or at least resolve in advance the holiday visitation disputes that inevitably crop up, then relax and enjoy the holiday as we await the busy season to begin.

In the last several years, the phenomena started early for us and many other attorneys. We were contacted by more people in December in the last few years than in any years in recent memory. This year, the calls started in November at a pace more robust than in prior years.  Moreover, we have heard of more people telling their spouse it “is over” before the holidays this year. I suspect that in some, it was the discovery/disclosure of a new significant other or perhaps pressure being exerted by that person that was the cause. In other cases, the person just didn’t want to wait until the new year to advise their spouse.

Whatever the reason, we await those who see 2017 as a chance for happiness or a fresh start. Happy New Year?!?!

______________________________________________________

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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Rule 11 Sanctions Are Not to be Imposed for Minor Alleged Offenses

Moeck v. Pleasant Valley School District, ___ F.3d ___ (3d Cir. 2016).  Motions for sanctions under Federal Rule of Civil Procedure 11 are not favored because, as Judge Shwartz pointed out in her opinion in this case today, Rule 11 sanctions “are 1) in derogation of the general American policy of encouraging resort to the […]

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Mandatory Electronic Filing of Pretrial Detention Appeals Begins on January 1, 2017

This morning, the Appellate Division issued a Notice to the Bar, available here, to remind practitioners and appellants that, effective on January 1, 2017, appeals to the Appellate Division on pretrial detention matters must be filed electronically.  The notice also observes that four other categories of appeals are already subject to mandatory electronic filing.  Those […]

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Circuit Court Appeals Are (Slightly) Down, While Reversals Are (Slightly) Up

An analysis issued yesterday by the Judiciary and Data Analysis Office of the Administrative Office of the United States Courts revealed some interesting information about and trends in federal appeals.  The total number of appeals dropped slightly in 2015, to 53,266, from 53,799 in 2014.  In the period beginning January 1, 2011, the total number […]

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Special Needs Trust Fairness Act

On December 13, 2016, President Obama signed into law the Special Needs Trust Fairness Act as part of the 21^st Century Cures Act. The new act allows first party special needs trusts to be established by mentally competent individuals with disabilities for their own benefit.

Prior to this, first party special needs trusts could only be established for disabled persons by their parent, grandparent, legal guardian, or a Court, necessitating in many cases the expense and delay of a Court application or family involvement to establish these trusts. Now, and effective as of December 13, 2016, adults with disabilities who are competent may establish and fund their own first party special needs trusts.

Specials needs trusts can be invaluable to disabled individuals who receive benefits through means tested programs such as Medicaid and Supplemental Security Income (SSI), enabling them to enjoy the benefit of trust assets without disqualifying them from essential governmental assistance.

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Tax Credits for a Disabled Child vs. Tax Deductions for Such a Child

Polsky v. United States, ___ F.3d ___ (3d Cir. 2016).  Plaintiffs are the parents of a permanently disabled daughter.  They claimed a child tax credit on two years’ federal tax returns.  The Internal Revenue Service disallowed that claim, on the ground that the child was too old to qualify for the credit.  Plaintiffs, acting pro […]

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Your Current Commercial Property’s Assessment and Tax Bill: The Best Defense Is A Good Offense – Take Action Now!

In the fall and early winter, as we approach the final days of the calendar year, the farthest thing from the mind of New Jersey taxpayers is their property tax bill. Months ago, the new tax bills were mailed and then filed away to be pulled out when quarterly payments are due. However, an astute taxpayer should make a note on the calendar for the last quarter of the year to look at the total assessment that appears on the tax bill and consider whether it reflects a fair or true value for the property. Acting proactively at this time of year can potentially shave significant dollars from a property owner’s tax bill, depending on the size of the assessment and the tax burden imposed by the municipality. Here’s why.

In several instances (but not all) a total assessment does not reflect the market value of the property that has been assessed. It is not a well-known fact, but the New Jersey Division of Taxation publishes what is known as the Table of Equalized Valuations in October of the pre-tax year. This is closely followed by the table of Common Level Ranges; the so-called Chapter 123 table. This table establishes the ratio of assessed values to true or market values for each municipality in New Jersey. The assessed values are expressed as the numerator and the market values (of selected sales) are expressed as the denominator. By simply dividing the property’s assessment by the ratio for a particular municipality, the equalized assessed value or presumed market value of a property can be determined.

For example, if the municipality’s property is assessed at $900,000, and its ratio is 90%, and its presumed market value is $1,000,000.

Let’s say that an appraisal was recently done on this hypothetical property for financing purposes and the appraiser concluded that its market value was $750,000. Applying the Chapter 123 ratio and presuming the appraiser’s conclusions are on the money, the property would be assessed at $675,000 ($750,000 x .90, the Chapter 123 ratio). Under a Chapter 123 analysis, applying the so-called “corridor rule”, the taxpayer would very likely win a formal appeal. However, a formal appeal will not be decided until much later during the appeal season, which starts after the last day to file or April 1^st of the tax year.

Can anything be done to address this excessive tax burden sooner?

By law, the assessors must perform prescribed duties under certain deadlines throughout the tax year. These statutory responsibilities, along with the Division of Taxation’s publication of the Table of Equalized Valuations and then Chapter 123 table, present an opportunity for the taxpayer to seek tax relief well before the formal appeal season. Here, the phrase “the best defense is a good offense” is particularly apt as taking action can, in many instances, yield results positively impacting the bottom line by reducing the operational costs of a property. It is important, however, to recognize that steps need to be followed in a relatively narrow window of time which closes very soon in the year of the assessment.

The assessor is required to file lists of added and omitted assessments no later than October 1^st of the pre-tax year. N.J.S.A 54:4-35.5 and -63.19. During this time period, the assessor is collecting information usually consisting of property sales but also leases, listings, and similar market data. The assessors and professionals in this field are mindful that October 1^st of the pre-tax year is the valuation date for formal appeals filed the following year. See N.J.S.A 54:4-35.5. Thus, the collection of market data, appraisals, and the publication of the Chapter 123 table all bear on the opportunity to seek an assessment reduction if warranted.

What should you do?

There is a distinct advantage in approaching an assessor at this time. There are essentially two options: First, wait and file a formal appeal by April 1^st of the next year. Second, initiate discussions with the assessor during this time period. Why? Because each year the assessor is under an obligation to file a certified list of assessments with the County Board of Taxation by January 10^th of the tax year, or a later date if an extension to file was granted (not every Board of Taxation will grant extensions).

In carrying out his/her duties, the assessor is given considerable discretion in selecting a property’s assessed value to be included on the certified list. Further, any agreement to reduce an assessment will be done through discussions around a conference table or across a desk, and not in the context of a formal tax appeal. In the latter case, municipal assessors and officials are keenly aware that tax appeals can lead to huge refunds, resulting from an adverse judgment. In that case, the refund monies come directly from municipal coffers and not from any of the public entities that ultimately receive tax receipts such as school districts, counties, fire districts, etc. Also, a taxpayer who is successful in obtaining a lower assessment at this time will receive the immediate benefit of the lower assessment.

Typically, taxes will be adjusted within the first two quarters – either by February 1^st or the latest May 1^st. In the case of a formal tax appeal, even if the taxpayer obtains a favorable judgment, the reduction is retroactive and a refund will be issued at a much later date. However, the taxpayer must continue to pay higher taxes throughout the pendency of the appeal. This can be particularly onerous as sometimes Tax Court tax appeals take years to resolve, causing the taxpayer to pay excessive taxes throughout the appeal.

In the example given above, a reduction to an assessment well below the assessed value of $900,000 is highly likely. Usually, assessors will give some deference to appraisals in discussing whether a property is properly assessed. However, valuation of commercial properties is highly sophisticated, and there are special rules for valuation followed by the County Boards of Taxation and the Tax Court. Here, the value of a professional team cannot be understated. While the taxpayer can engage in discussions with the assessor, attorneys who practice in this field have developed the skills and relationships in order to usually achieve the best results.

In conclusion, it is most important that an owner, or triple net tenant with the right to appeal, be proactive. The Chapter 123 ratio is readily available and relatively easy to employ to get a snapshot of the equalized assessed value of property. With an appraisal or other data, such as the property’s income and expenses, the tools readily exist to perform a check to see if the property is properly assessed.

One last word of caution to property owners or tenants that seek to manage a property’s assessment and its taxes: be sure to complete and timely file the Chapter 91 (Income and Expense) request mailed by the assessors. Ignoring a Chapter 91 request can lead to dire circumstances, including dismissal of a formal appeal, ending the taxpayer’s opportunity to lower the assessment. Further, the assessor may choose not to discuss an assessment reduction informally.

For further information, please do not hesitate to contact Stark & Stark’s tax appeal attorneys.

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Volunteer Emergency Medical Technician is Not a “Public Servant” for Purposes of the Official Misconduct Statute

State v. Morrison, ___ N.J. ___ (2016).  In today’s unanimous opinion by Justice Albin, the issue was whether a volunteer emergency medical technician (“EMT”) is a “public servant” who can be charged with official misconduct under N.J.S.A. 2C:30-2(a).  This was one of a number of criminal charges that defendant faced in connection with alleged misappropriation […]

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Your Right to File a Construction Lien on a Commercial Project

In general, a contractor, subcontractor, or supplier is entitled to file a construction lien on a commercial project provided that the lien is filed within 90 days of the last date the entity provided materials or services with regard to the subject project. There are certain requirements, however, that must be met prior to being able to file a construction lien.

The first requirement is that there must be a signed contract pursuant to which the entity provided the materials or services. The next requirement is that the lien must be filed within the 90 days following the last date the entity provided materials or services with regard to the project. If the project involves a municipal project or residential construction, the requirements are different than discussed in this blog. That topic will be discussed in another blog. In a nut shell, however, if a lien is filed within 90 days of the last date that materials or services were provided pursuant to a contract which exists between the claimant and the contractor, or owner, then the lien can be filed. The following paragraph addresses

Who is Eligible to File a Construction Lien?

The definition section of the New Jersey Lien Law provides that a “supplier” means any supplier of materials or equipment having a direct contract with the owner, contractor, or subcontractor. Thus, the cutoff for a supplier being able to file a lien claim on a project would be if they were a supplier to a sub-subcontractor on a project. In that scenario the supplier would not be permitted to file a lien. Essentially the same rule applies for a subcontractor. For the purposes of filing a lien claim, a “subcontractor” is defined as any contractor or subcontractor who has a direct contract with a contractor on a project. As such, a sub-subcontractor would be unable to file a construction lien on a project.

In addition to the definitions set forth above, it is also important that the lien be founded upon a valid contract as discussed above. Furthermore, if a lien is overstated intentionally or is unsupported by documents which evidence the amount which is due, the lien can likewise be deemed invalid. Under those circumstances, the lien claim is considered “willfully overstated”, and thus, the claimant may be subject to penalties as provided by the relevant lien law. This short blog, however, is designed solely to inform you as to generally who may file a construction lien on a commercial project.

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The Supreme Court Will Review a Big Constitutional Law Case, Three Criminal Appeals, and an Insurance Coverage Case

This morning, the Supreme Court announced that it will review five more cases.  Three of those are criminal cases, one is an insurance coverage case, and one is a constitutional law matter that is likely to be one of the blockbusters of the current Supreme Court term. The constitutional case is American Civil Liberties Union […]

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A New Rule, 2:9-14, is Promulgated Regarding Supreme Court Review of Orders Granting Pretrial Detention

This morning, the Supreme Court published a notice to the Bar, available here, regarding a new Court Rule that addresses review by the Court of Appellate Division rulings regarding pretrial detention.  That rule, Rule 2:9-14, was adopted on December 6 and will be effective as of January 1, 2017. The new Rule 2:9-14 provides that […]

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Equitable Distribution Statute Does Not Apply to Property Acquired During Cohabitation, But Equitable Principles Come to the Rescue

Thieme v. Aucoin-Thieme, ___ N.J. ___ (2016).  Plaintiff and defendant cohabited for eight years, were married for a short time, and then divorced.  Before and during the marriage, plaintiff had been a salaried employee of a consulting business, for which he worked long hours and traveled extensively.  The principals of the business promised to compensate […]

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A Section 1292(b) Appeal on an Employment Discrimination Issue

Carroll v. Delaware River Port Authority, ___ F.3d ___ (3d Cir. 2016).  28 U.S.C. §1292(b) permits a District Court to certify a question of law to a Court of Appeals for resolution.  The Court of Appeals must consent to decide the issue.  Today, the Third Circuit issued an opinion in such a case, which does […]

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Avoiding an Absurd Result in a Statute of Limitations Case Under the Survivor Act

Warren v. Muenzen, ___ N.J. Super. ___ (App. Div. 2016).  A 2009 amendment to the Survivor Act, N.J.S.A. 2A:15-3, included language that “[e]very action brought under this chapter shall be commenced within two years of the death of the decedent, and not thereafter,”  Plaintiff in this case, who alleged that medical negligence resulted in her husband’s […]

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You Destroyed Our Marriage—So I’m Destroying Your Memories; Consequences for Destroying or Disposing of Personal Photographs and Videos Accumulated During Marriage

They say a picture is worth a thousand words, and in the recently unpublished (not precedential) case of C.S. v. B. S., Judge Jones determined that 25-years’ worth of family pictures destroyed by a scorned ex-wife are also worth $5,000.00.

In C.S. v. B. S., the parties divorced after approximately 25 years of marriage. They had one child, who was emancipated. The parties’ entered into a Matrimonial Settlement Agreement, and agreed, among other things, that the husband would have the right to share in the family photographs and videos that were kept in the in the marital residence, where the wife continued to exclusively reside.

However, shortly after the parties’ divorce, the wife refused to allow plaintiff to have or copy any of the photos or videos of the marriage. The husband sent the wife an email requesting her cooperation to retrieve the photos and videos and she replied that she had disposed of them because he had allegedly been unfaithful during the marriage and no longer wanted to be reminded of him.

The husband sought enforcement of his rights and damages for the wife’s breach of the marital settlement agreement and the Court scheduled the matter for a hearing. At the hearing, the Court did not accept the wife’s testimony that she returned the husband’s childhood pictures (one torn into pieces), completely skipping over the last 25 years of the husband’s life, due to her interpretation of the parties’ agreement. Further, the wife did not indicate how or when she disposed of the photos, but testified that she believed it was before the divorce. She could not answer why, if she disposed of the photos before the divorce, the settlement agreement provided for plaintiff to share in the photographs and videos. The Court concluded that the wife’s refusal to provide the husband with the photos and videos of the marriage was a violation of the husband’s rights.

So what is the husband’s remedy? Unfortunately, the 25 years of family photographs cannot be replaced, so the Court had the task of fashioning an appropriate remedy.

First, the Court found that, in divorce proceedings, there is an implicit duty of good faith and fair dealing between parties. This means that each party has an obligation to treat the other fairly and respectfully during the divorce process, including honoring each other’s rights to marital property and adhering to terms of settlement agreements and consent orders. Thus, the wife breached the duty of good faith and fair dealing by depriving the husband of the family photos and videos.

The Court came up with three scenarios based on the Wife’s testimony: (1) she disposed of the photos and videos after the entry of the marital settlement agreement; (2) she disposed of the photos and videos before the entry of the marital settlement agreement; and (3) the photos and videos were not destroyed and still exist.

The Court opined that under scenario 1, if the wife disposed of the photos and videos after the entry of the marital settlement agreement, such action is a violation of the husband’s rights under the express terms of the document.

Under scenario 2, if the wife disposed of the photos and videos before the entry of the marital settlement agreement, such action is a violation of the implicit obligation of fair dealing, as the wife could not have possibly honored the agreement regarding the sharing of the photos and videos if they no longer existed. Under this scenario, the wife’s conduct “would constitute more than a mere breach of contract, but an actual misrepresentation”. The court also added that, when parties file divorce pleadings, the property of the marriage is deemed, in custodia legia (i.e. property under control of the court) pending resolution. Thus, the wife’s complete disposal of the marital photos and videos during the divorce process is evidence of a lack of good faith and fair dealing.

Under scenario 3, if the photos and videos were not destroyed and still exist, the wife is committing the tort of conversion (i.e. the intentional exercise of dominion or control over a property which interferes with the legal right of another to possess or control same).

Regardless as to which scenario was the truth, each entitled the husband to damages from the wife and thus the Court was next tasked with crafting a remedy for the husband. Generally, when a party wrongfully takes another’s property, the aggrieved party is entitled to damages, which are assessed under either a market value analysis or cost replacement analysis. However, in this case, due to the unique nature of the photos and videos neither of these analyses apply, since there is no market value or cost replacement value for personal family photos and videos. Therefore, financial compensation and/or reasonable sanctions are the most logical and available options in the Family Court, even though assigning an amount may prove complicated.

Prior to assessing financial compensation and/or reasonable sanctions in this type of scenario, there must be a foundation of evidence to support that:

(a)        the other party actually did take, damage or destroy the property, in violation of the aggrieved party’s rights;

(b)        the aggrieved party genuinely wanted the items in question; and

(c)        the violating party knew or should have known that the aggrieved party wanted the property and that such property had a particular personal value or significance.

Here, after a consideration of the parties’ testimony and other evidence before the Court, Judge Jones found that the wife, by disposing of or destroying the family photos and videos, met all of these factors and awarded the plaintiff $5,000.00.

Before concluding, Judge Jones reminded us that each case and each issue is fact-sensitive and that damages are to be assessed based on the specific facts of each case.

That being said, revenge comes with a price. Here, it was $5,000.00 and 25 years of lost memories, but let this be a warning: before you act, whether it be out of anger, spite, or revenge, think twice about how much it may cost you for that moment of satisfaction.

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Considerations When Determining a Midweek Overnight Parenting Time Schedule

In the case of M.C. v. P.C. (unreported, non-precedential), Judge Jones explores the issues surrounding mid-week overnight parenting time during the school year and its effect on the best interests of the children. In many cases, both parents live close by and are routinely exercising parenting time on weekdays in addition to weekends. While frequent and continuing contact with both parents is almost always positive for the child, it does not come without issue in the post-divorce context. We frequently see cases where one parent refuses to complete homework or take the child to soccer practice during their weekday parenting time.

The facts of this case are simple. The parents have two children, ages 8 and 10. As part of their divorce agreement, one parent was the primary residential custodial parent with the other parent having reasonable and liberal parenting time, to include every Thursday evening overnight into Friday mornings.

The primary parent, who works in the children’s school (but is not their teacher) filed an application to modify midweek overnight parenting time asserting that the children often come to school unprepared on Friday mornings and without their homework completed. It was alleged that the primary parent then has to rush around on Friday mornings assisting the children with completing their assignments before school formally begins. The noncustodial parent obviously denies same, however the Court noted that neither party produced any corroborating evidence so the Court was forced to rely upon the parties own testimonial positions.

In its analysis, the Court took “judicial notice” (meaning something is so well known it cannot be reasonably doubted) that education is one of the most important aspects of a young child’s life. The Court noted that children “need to learn from both parents, as early as possible, that tending to homework, test preparation and general scholastic readiness must take an appropriately high priority in a child’s schedule”.

That said, even in the cases where the parents are entirely cooperative, when the children go back and forth between households, this creates another layer of difficulty in trying to implement these fundamental educational values and maintain consistency. The Court opined while it is conceivable that back and forth parenting time could cause a child to incur a significant distribution and a loss of appropriate focus on meeting scholastic responsibilities, it is not per se harmful or contrary to a child’s best interests. As with many issues that arise in a family law matter, it is fact-sensitive and case specific given that each family and child is unique.

The Court goes on to remind that:
“Shared parenting” means more than simply counting the hours and minutes a child stays under a parent’s roof but also involves each parent meeting his or her responsibilities during such a time rather than unilaterally passing it off onto the other parent. Put another way, a parent cannot insist on simply taking the children for parenting time while siphoning out the parenting obligations which naturally continue to exist during such times. If a parent wants midweek overnight parenting time during a school year, that comes with all of the scholastic responsibility and other midweek obligations, in one integrated package.

The Court noted that although the primary parent’s testimony was persuasive there were evidentiary obstacles insofar as how prevalent the deficiencies that were complained of really were. Was this a situation where the child only missed 1 out of 10 assignments or a situation where the child’s backpack was not even opened with nothing done at all? The Court noted that evidence could have been presented by school records, testimony from teachers, lower test scores or any other evidence of the children’s lack of readiness on Fridays, as compared with other days when the children are in the care of the primary parent.

In sum, the Court found that there was insufficient evidence to make a specific finding that the homework issue was so prevalent as to require an immediate elimination of midweek overnight parenting time but established a helpful protocol for the parties moving forward as to how to deal with the issue of homework.

What can be taken away from this is case is how important it is to be fully prepared when presenting your application to the Court. Had the primary parent produced more corroborating evidence as to the magnitude of the missed assignments (assuming it was substantial), the outcome may have been different. It is always important to seek the advice of experienced counsel when presenting any application (especially an application to modify an existing arrangement/order) to the Court.

———————

Lauren K. Beaver is a contributor to the New Jersey Family Law Blog and an attorney in Fox Rothschild LLP’s Family Law Practice Group. Lauren practices out of the firm’s Princeton, New Jersey office representing clients on issues relating to divorce, support, equitable distribution, custody, and parenting time. Lauren also offers mediation services to those looking to procure a more amicable divorce. Lauren can be reached at (609) 844-3027 or lbeaver@foxrothschild.com.

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“On the Road Again”: The Appellate Division Will Hear Arguments in Freehold Next Week

The Appellate Division normally hears oral arguments in Newark, Trenton, Hackensack, and Morristown.  Every so often, however, the Appellate Division takes its show on the road to other venues. Today, it was announced that a panel consisting of Judges Messano, Guadagno, and Suter will hear oral arguments at the Monmouth County Courthouse in Freehold on […]

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Grandparent Visitation Redux

Slawinski v. Nicholas, ___ N.J. Super. ___ (App. Div. 2016).  There are a surprising number of published New Jersey cases in the family context regarding grandparent visitation of grandchildren.  Examples are here, here, and here.  This latest decision, by Judge Ostrer, deals with whether a parent can modify or terminate a grandparent’s visitation rights. As […]

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Alimony Obligors May Find Relief for Decreased Income Under New Statute

It’s a story as old as time in the New Jersey courts. Alimony is set based upon the income of parties to a divorce, but then years later, a spouse loses his or her job and is unable to continue to make the agreed upon or ordered payments. What is a Court to do?

In the old days, prior to the enactment of the new alimony statute, judges had certain checklists, gathered from all the law that they typically used to assess whether to obligor would gain relief. You can find that checklist I compiled in 2013 here.

However, now that the new statute is in effect, the question becomes, how should judges treat on obligor’s loss of employment?

Mills v. Mills, an opinion by Judge Jones of Ocean County, approved for publication, provides some guidance on the issue.
In the Mills case, the parties divorced in 2013 after a 13-year marriage. At the time of the divorce, the parties agreed that the Husband would pay the Wife alimony in the amount of $330 per week for 8 years, as well as child support in the amount of $200 per week. This award was based upon the Husband’s income as a district sales manager for a company selling residential and commercial flooring services, earning $108,000 per year and the wife’s income as a teacher, earning $59,000 per year.

In January 2015, after 12 years of employment at the flooring company, the Husband lost his job. The job loss was involuntary; it stemmed from his employer’s decision to restructure its business plan and eliminate the Husband’s position.

The Husband began searching for a new job immediately. In April, 2015, he received an offer of employment form another flooring company, but at a significantly lower salary of $70,000, with a $6,000 car allowance.

At this point, the Husband was faced with a difficult decision – does he accept the job at a lower rate, or decline the opportunity and look for another job closer to his prior income? Ultimately, he decided to accept the new job.

Initially after accepting the new job, the Husband continued to pay alimony at the rate of $330 per week. He had received severance pay of $35,000 and was able to temporarily supplement his income from there. However, as the year neared its end, the Husband had depleted all reserves.

The Husband filed a motion on November 24, 2015 for a prospective modification and reduction of his support obligations based upon a substantial change in circumstances. In the meantime, he earned a performance bonus of $6,000, bringing his total compensation t $82,000, which still constituted a $26,000 from his prior income.

The Wife opposed the motion, and questioned the circumstances under which the Husband lost his prior employment, and that even if the loss was involuntary, he had not demonstrated that he could no longer earn at least $108,000. She also stated that the loss of support would create economic difficulties for her.

The parties were unable to resolve their differences and the matter proceeded to a contested hearing. The Husband testified that when he began at the flooring company, he was earning $50,000 and gradually worked his way up to a salary of $108,000. The Court found that he testified credibly that he could not simply walk into a new position at a new company and immediately command the same salary.
Interesting, the Court began its legal analysis by expounding upon a “Catch 22” in which many obligors found themselves under the old statute.

…no matter what decision he or she made in accepting or declining a new position at a lower pay, that decision might subsequently be critiqued, criticized and even legally challenged by an ex-spouse who, in resisting a reduction in alimony, might contend that the supporting spouse made an inappropriate choice and therefore should not receive a reduction in his or her support obligation   … when a supporting spouse lost his or her job and then declined an offer to take a lower paying position…and instead kept searching for a higher paying position while seeking a reduction in support, the supported spouse would often argue that the obligor unreasonably bypassed an opportunity to earn at least some income that could have been used to pay some of the ongoing support obligation…
…
Reciprocally, if a supporting spouse accepted the offer for new employment at a substantially lower salary and then sought a reduction in support, a supported spouse would often argue that the obligor was underemployed because he or she accepted a position at a significantly decreased level of pay or proven “income potential”…

Judge Jones rejected the suggestion that there is a “one-size-fits-all” legal analysis for approaching and analyzing these types of issues. In that regard, he stated “imputation of income was a discretionary matter not always capable of precise or exact determination”.

After citing the amended alimony statute – N.J.S.A. 2:a:34-23(k) – for guidance as to how to analyze this issue. In doing so, he specifically referenced subsection (2), which expressly references that when an obligor loses his or her employment, a judge may consider the obligor’s documented efforts to obtain replacement employment or pursue an alternative occupation, as well as subsection (3) which provides that a court may consider the obligor’s good faith effort to find remunerative employment at any level in any field.

However, the Judge noted that the amended statute does not expressly establish or provide a specific standard for statutory analysis in situations when an obligor actually obtains new employment at a significantly lower pay, then seeks to reduce his or her support obligation over the supported spouse’s objections.

The Court concluded that as a matter of equity, fairness, as well as the most reasonable, consistent and straightforward analysis would be addressed by the following two-step inquiry:

(1) Was the supporting spouse’s choice in accepting a particular replacement employment opportunity objectively reasonable under the totality of the circumstances?
(2) If so, what if any resulting support adjustment should occur that is fair and reasonable to both parties, given their respective situations?

In applying this two-step inquiry, as well as the statutory mandates, the Court concluded that the loss of income was involuntary and that the Husband made legitimate efforts to obtain new employment in the same industry in good faith.

While the salary in the new position was lower, the Court found that the Husband nonetheless made an objectively reasonable decision in responsibly trying to begin at a new place of employment. In fact, the Court found that the Husband was very fortunate in this economy to find replacement work.

Nor did the Court find any objective evidence that the Husband was deliberately underemployed or unreasonably turned down or avoided other job opportunities at higher income levels.
After considering all the evidence, the Court reduced the Husband’s alimony obligation to $250 per week and his child support obligation to $194 per week.

With this decision, Judge Jones clearly articulated what I have personally heard many obligors say to me when deciding whether to move forward with a first, second or even third motion for a reduction in alimony based upon reduced income. Whatever step an obligor took, the supported spouse had a response; and one that was well supported by case law.

Either way, the supported spouse would argue that the reduction in income constituted underemployment and that the Court should impute income consistent with the obligor’s prior income.

Judge Jones’ decision provides a clearer analysis that Court should undertake in this all-too-familiar situation.
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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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Parents Cannot Unilaterally Modify Consent Orders for Grandparent Visitation

As we have blogged before, in light of the Constitutional protections given to parents, grandparent visitation is very hard to obtain because the grandparents have to show harm to a child to meet their burden.  What happens, however, if parties agree to grandparent visitation and the parent then either changes their mind or reconsiders decides that the grandparents shouldn’t have visitation anymore?  Must the grandparents then have to prove harm, as if there never was a consent order in the first place because there was no proof that the visitation was necessary to avoid harm to the child.  That is exactly what a trial court, in the case of Slawinski v. Nicholas held.  Note that that basis for the motion to terminate the visitation was a claim that the child was upset by the visits, was not properly cared for during the visits and further, that the grandparent allowed the child’s father to be present at a visit even though his visitation had been suspended by a prior court order.  However, in a reported (precedential) opinion, released on December 6, 2016, the Appellate Division reversed and held that a parent could not unilaterally modify a consent order for grandparent visitation.

The parent’s attorney argued that she  should not have the burden to demonstrate grounds to terminate visitation inasmuch as the original Consent Order was entered by consent without any judicial findings that the visitation was beneficial. The attorney further contended, “[T]here is no burden that my client has to do anything other than say this is not working out, I tried.” The trial judge agreed and held that since the order was entered by consent, defendant was entitled to terminate visitation unless plaintiff could demonstrate, by a preponderance of the evidence, “that denial of visitation would result in harm to the child.”

In the decision, the Appellate Division provided a concise primer on the state of grandparent visitation, as follows:

We recognize that a parent’s fundamental right to raise a child as he or she sees fit encompasses the authority to determine visitation by third parties, including grandparents. See Moriarty v. Bradt, 177 N.J. 84, 114-15 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004). Yet, that autonomy gives way to the need to protect the child from harm. Id. at 115. Thus, “grandparents seeking visitation . . . must prove by a preponderance of the evidence that denial of the visitation they seek would result in harm to the child.” Id. at 88. “If the court agrees that the potential for harm has been shown, the presumption in favor of parental decision making will be deemed overcome.” Id. at 117.

Still, proof of harm involves a greater showing than simply the best interests of the child. Id. at 116 (stating that a dispute between a “fit custodial parent and the child’s grandparent is not a contest between equals[,]” consequently “the best interest standard, which is the tiebreaker between fit parents, is inapplicable”). Substantively, it is a “heavy burden.” Major v. Maguire, 224 N.J. 1, 18 (2016); cf. Fawzy v. Fawzy, 199 N.J. 456, 479 (2009) (“The threat of harm is a significantly higher burden than a best-interests analysis.”). The harm to the grandchild must be “a particular identifiable harm, specific to the child.” Mizrahi v. Cannon, 375 N.J. Super. 221, 234 (App. Div. 2005). It “generally rests on the existence of an unusually close relationship between the grandparent and the child, or on traumatic circumstances such as a parent’s death.” Daniels v. Daniels, 381 N.J. Super. 286, 294 (App. Div. 2005). By contrast, missed opportunities for creating “happy memories” do not suffice. Mizrahi, supra, 375 N.J. Super. at 234. Only after the grandparent vaults the proof-of-harm threshold will the court apply a best-interests analysis to resolve disputes over visitation details. Moriarty, supra, 177 N.J. at 117.

The Appellate Division then discussed the impact of a consent order on the above law, and held:

But nothing about a parent’s right to autonomy warrants allowing a parent to unilaterally modify or terminate a consent order on grandparent visitation. The parent effectively waives that autonomy by entering into the order, just as a parent waives rights when entering into any other consent order governing custody or visitation. Given our respect for the consensual resolution of family-related disputes and the stability such agreements achieve, modification of a consent order governing grandparent visitation must be considered according to the same Lepis changed circumstances framework applicable to other custody and visitation orders.

The Appellate Division then provided the necessary procedure to follow should a parent wish to modify a Consent Order for Grandparent visitation, as follows:

Consistent with this approach, the court should apply the standard governing grandparent visitation if the movant-parent also succeeds in establishing changed circumstances. That is to say, the court must consider whether or not the modification of a grandparent’s visitation will cause harm to the child, as distinct from considering the best interests of the child.3 If the modification will not cause harm, the court must grant the modification even if the grandparent could show doing so was contrary to the child’s best interests.

When the parent is the movant, the parent bears the burden to establish grounds for modification. See Beck v. Beck, 86 N.J. 480, 496 n.8 (1981) (“[W]hen seeking joint custody after an initial custody determination has been made, even a parent enjoying such a relationship must satisfy the same burden of proof as applies to anyone seeking to change a custody decree, namely, a change of circumstances warranting modification.”); Abouzahr, supra, 361 N.J. Super. at 152 (assigning burden to show change of circumstances and child’s best interests to “party seeking a modification”); Sheehan, supra, 51 N.J. Super. at 287 (stating “the party seeking a modification bears the burden of proof”).

Thus, in a grandparent visitation case, the parent seeking modification bears the burden to prove changed circumstances and that the child would not suffer a particular, identifiable, child-specific harm, see Mizrahi, supra, 375 N.J. Super. at 234, if modification were ordered. Given that a grandparent’s burden to prove harm is more onerous than satisfying a best interests test, the parent’s burden to prove the absence of harm is less onerous than the best interests test. See Moriarty, supra, 177 N.J. at 113 (noting that a best interests test can be satisfied although the child suffers no harm) (citing Watkins v. Nelson, 163 N.J. 235, 248 (2000)); cf. Morgan v. Morgan, 205 N.J. 50, 63-65 (2011) (noting that a custodial parent’s burden to prove good faith and lack of harm in order to remove the child is less onerous than a showing of best interests). Once the parent establishes changed circumstances and the absence of harm, the court must grant the parent’s requested modification.

The Appellate Division was clearly wrestling with the long standing public policy favoring the settlement of disputes as juxtaposed against a parent’s constitutional rights as it relates to their children.  That said, one wonders whether a parent would be willing to give up their autonomy, especially in questionable circumstances, if they have will have to expend a lot of time and money to terminate the grandparent visitation in the future.

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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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Supreme Court Will Review OPRA, Statute of Limitations, and Employment Contract Cases

The Supreme Court announced this afternoon that it has granted review in three more cases.  The first is an Open Public Records Act (“OPRA”) case, Paff v. Ocean County Prosecutor’s Office.  The plaintiff there, John Paff, is a frequent filer under OPRA, including (among many others) this case.  Indeed, the Supreme Court already has another […]

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Comparative Negligence of John Doe Defendant is Generally to be Considered in Apportioning Damages

Krzykalski v. Tindall, ___ N.J. Super. ___ (App. Div. 2016).  This was an auto accident case.  At trial, the jury was allowed to consider in the comparative negligence mix not only defendant’s negligence but that of a John Doe defendant whose driving had a role in the collision.  The jury found Doe 97% negligent and […]

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The Appellate Division Rejects a Stipulated Dismissal of an Appeal From a Final Domestic Violence Restraining Order

J.S. v. D.S., ___ N.J. Super. ___ (App. Div. 2016).  Normally, when parties agree to dismiss an appeal, the courts are only to happy to oblige.  This opinion by Judge Fisher yesterday in a domestic violence final restraining order case is a rare exception to that general rule. Plaintiff filed a complaint against her husband […]

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Do Parents Have an Obligation to Pay for Grad School? One New Jersey Trial Court Says, “It depends” Under Current Law and the Newly Enacted Statute

More and more, when discussing the payment of college education expenses with clients for their children, I am being asked, “What about graduate school?”  The guiding principal behind that question, I suppose, is that, in New Jersey, it is well-settled that absent extenuating circumstances, both parties to a divorce have an obligation to financially provide for their children’s college educations.  By that logic, if a child seeks an advanced degree, don’t both parties have an obligation to financially contribute to those educational costs as well?

The question of whether a graduate degree is the new undergraduate degree is a debatable one, sure.  But in a recent unpublished (not precedential) decision, J.C. v. A.C., the New Jersey Superior Court determined that even though divorced parents have an obligation to contribute to their children’s pursuit of a college degree in ordinary circumstances, this doesn’t mean that there is a continuing obligation to contribute to the child’s pursuit of a graduate degree.

The pertinent question here is whether the child is emancipated, i.e., whether the child has the ability to support him or herself.  New Jersey generally deems children to be unemancipated, even if they are over the age of 18, if they are attending college full time.  This is because our courts have established that a child attending college is generally not capable of supporting him or herself yet.  But, as Judge Jones discusses in J.C., the same cannot necessarily be said of a child who has already obtained a college education and has a college degree.  The Court cannot simply look at graduate school as an extension of undergraduate education, because there are clear differences between a college student with only a high school degree, and a graduate student with a college degree:

First, as previously noted, a graduate student has usually and most critically already obtained a bachelor’s degree, evidencing an enhanced ability to start taking independent responsibility for his or her own life.

Second, a graduate student who already has a bachelor’s degree – as compared to an undergraduate student with only a high school diploma – may logically and inherently more marketable [sic] in certain instances, an therefore reasonably expected to utilize the degree and apply for jobs where he or she can earn an independent living, even if such jobs may pay less than certain positions which require a master’s degree or other advanced degrees that the student can obtain on his or her own at a later date. [. . .].

Third, the distinction between an undergraduate student and a graduate student has been implicitly recognized by the Federal government itself.  When an undergraduate student applies for financial aid through FAFSA, the FAFSA application form generally requires applicants to disclose parental income as part of the information necessary to determine eligibility and the amount of financial aid the applicant may receive.  Graduate and professional degree students are generally considered independent students and are not required to supply information regarding parental income on the FAFSA application. [. . .].

Fourth, absent highly unusual circumstances, a graudate student is, from a chronological standpoint, generally older than the undergraduate student, and therefore naturally expected to be more mature and independent in a manner consistent with his or her years and life experience.  With such years are naturally expected to come the ability to be self sufficient, outside the sphere of parental influence. [. . .].

Fifth, from a standpoint of sensibility, one may legitimately question just how far the concept of extending emancipation and child dependency beyond college graduation actually goes. [. . .]. Does a parent have to financially maintain a “child” who is 25 or 30 years old, just because the child chooses to seek further advanced degrees, and the parent happened to have had an unsuccessful marriage and divorced the child’s other parent many years earlier?  Does such a result make practical sense?

The question then, says Judge Jones, must be:  is this college graduate emancipated, or not?  Judge Jones’ analysis above suggests that the Court should, in most circumstances, consider a college grad to be capable of supporting him or herself – even if he or she might want to pursue a higher education degree that would allow him or her to support him/herself, perhaps, on a higher salary – and therefore be emancipated.  The burden of proof, then, should lie with the applicant seeking a parent’s contribution to graduate educational expenses to show that it is “appropriate, necessary, and equitable under the circumstances” to require continued support by way of an order requiring a parent to help pay for grad school.  The pertinent factors in that analysis would be the oft-cited Newburgh v. Arrigo factors:

1. Whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education;
2. The effect of the background, values, and goals of the parent on the reasonableness of the expectation of the child for higher education;
3. The amount of the contribution sought by the child for the cost of higher education;
4. The ability of the parent to pay that cost;
5. The relationship of the requested contribution to the kind of school or course of study sought by the child;
6. The financial resources of both parents;
7. The commitment to and aptitude of the child for the requested education;
8. The financial resources of the child, including assets owned individually or held in custodianship or trust;
9. The ability of the child to earn income during the school year or on vacation;
10. The availability of financial aid in the form of college grants and loans;
11. The child’s relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and
12. The relationship of the education requested to any prior training and to the overall long-range goals of the child.

These, combined with other equitable factors for consideration – most obviously, the inherent differences between a high school student seeking contribution to undergraduate expenses and a college grad seeking contribution to graduate school expenses – have to be considered when determining whether it is fair for a parent to have to contribute to graduate education expenses.

But wait…what about the new statute?

The J.C. v. A.C. case recognizes that, effective February 1, 2017, there will be major changes in the law of emancipation and termination of a parent’s obligation to pay child and other financial support under N.J.S.A. 2A:17-56.67.  Under that statute – which will apply retroactively as well as prospectively – a parent’s obligation to pay child support will terminate by operation of law when a child reaches the age of 19, unless a court orders an extension of payment which shall not extend beyond the child’s 23rd birthday.  If a child is enrolled full time in college after he or she reaches the age of 19, then child support will not be terminated until that child reaches age 23, by which time the average college student has indeed graduated.

That’s a long-winded way of saying:  If your kid is in college, child support and a parent’s obligation to pay for college will continue until your kid turns 23.  Then, there can be no more child support.

BUT – and this is a big “but” – the amended statute provides that even though “child support” – i.e. payments from one parent to another for the support of the child – terminates, a child over the age of 23 will be able to seek a court order requiring “other forms of financial maintenance” from a parent.  In other words, a child over the age of 23 can still ask the court to require a parent to pay his/her expenses, it just won’t be called “child support.”

I recently moderated a Continuing Legal Education Panel where the panelists and I discussed this impending new statute, and this very issue was raised:  Under the new statute, could a 23 year old (or older!) “child” apply to the Court for another “form of financial maintenance” from a parent in the form of contribution to graduate education expenses?  And could that child be successful?

Judge Jones’ opinion certainly provides guidance on that question and suggests that not every claim by a child seeking a parent’s contribution to graduate school expenses should be granted under the new statute; the test will be whether the child can meet his or her burden of proof to show that an order requiring a parent to contribute to grad school expenses is “appropriate, necessary, and equitable under the circumstances” based upon the Newburgh factors and any other equitable considerations, including most importantly the general distinctions that can be made between a high school student seeking contribution to undergraduate expenses and a college graduate seeking contribution from a parent for grad school expenses.

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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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A Domestic Violence Final Restraining Order Cannot Be Entered In To By Consent

On December 5, 2016, an extremely interesting reported (precedential) opinion was released by the Appellate Division in the matter of J.S. v. D.S.  The opinion was remarkable for two reasons, one procedural and one substantive.  On the procedural side, what was interesting was that the Appellate Division proceeded to decide the case even though the matter was settled and the parties sought to have the appeal dismissed because the Court determined that “the interests of justice require a disposition of the appeal’s merits.”

The substantively interesting part of the opinion was the holding that parties cannot consent to the entry of a domestic violence Final Restraining Order (“FRO”).  Rather, because of the far reaching implications of an FRO, a trial court must make the requisite finding that an act of domestic violence has occurred.

In this case, after the entry of a Temporary Restraining Order (“TRO”), at the date of the FRO hearing, the parties reached an agreement which called for defendant’s consent to an FRO in exchange for plaintiff’s consent to defendant’s exclusive possession of the marital home pending further order in the matrimonial proceedings.  Rather than question the plaintiff about the act of domestic violence or the defendant to see if there was agreement that the act had occurred, but rather only asked the usual questions regarding the voluntariness of the agreement.  Satisfied that the agreement was voluntary, an FRO was entered.  The defendant then filed a timely appeal asserting that the FRO was void ab initio (i.e. from the outset) because the judge mistakenly issued the FRO without taking testimony about the allegations, without finding an act of domestic violence occurred, and without determining plaintiff required protection from defendant.

Apparently, while the appeal was pending, the same or similar agreement to continue the FRO was reached again and the parties tried to dismiss the appeal but the Appellate Division would not allow it finding:

… In light of the strong public policies underlying the Act, we choose to exercise our discretion to consider the appeal on its merits. We have an obligation to ensure the FRO was legitimately entered and should not permit its wrongful perpetuation simply because it may have become a useful chip in the settlement of the parties’ matrimonial disputes.

Having rejected the parties’ request that we dismiss the appeal and having resolved to consider the merits of this appeal, we agree with what defendant previously argued: the FRO can no longer stand. A domestic violence final restraining order may not be entered by consent or without a factual foundation. See Franklin v. Sloskey, 385 N.J. Super. 534, 540-41 (App. Div. 2006).  Because the trial judge mistakenly failed to elicit a factual foundation, failed to find domestic violence occurred, and failed to determine whether plaintiff required protection as a result of defendant’s conduct, we vacate the FRO.

The matter was then remanded for an FRO hearing.

Interestingly, in a footnote, the Appellate Division provided a road map, as it were, for parties that want to consent to an FRO, when it stated:

We do not mean to suggest every domestic violence action must be tried to a conclusion or that a defendant may not accede to relief sought by a plaintiff. Nothing prevents a defendant from declining to defend against such an action or from acknowledging under oath the commission of an act of domestic violence. The consequences, however, are too serious to permit entry of an FRO merely by consent. Before entering an FRO, a court must ensure there exists an adequate factual foundation and that the defendant understands the consequences of the decision not to contest the matter. A court must also find that the FRO is necessary “to protect the plaintiff from an immediate danger or to prevent further abuse.” Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006). (Emphasis added).

The take away from this case is that FROs are serious matters and that care must be taken if they are going to be used as bargaining chips to settle issues on either an interim or final basis.

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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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The Termination of Child Support Law—Benefit or Burden?

It is a common misconception that children automatically emancipate upon reaching the age of eighteen in New Jersey. In reality, there is no specific age when a child emancipates and child support payments terminate.

In fact, New Jersey law is clear that such findings are always fact-sensitive based on the circumstances of each case.

In practice, the burden to emancipate a child absent consent generally falls upon the non-custodial parent. A recent bill signed into law by Governor Christie seeks to reverse this trend. Rather than place the burden on the non-custodial parent to cease payments, this new law will place a greater burden on the custodial parent to continue to receive child support payments. For purposes of this article I will refer to this legislation as the “termination of child support law.”

The law becomes effective on February 1, 2017 for “all child support orders issued prior to, on, or after the effective date.” Of importance is the law’s presumption that child support will automatically terminate upon the child’s nineteenth birthday and that it will be the responsibility of the custodial parent to establish a basis for child support to continue unless “another age (which shall not exceed age twenty three) is specified in a court order.” Standing alone, the “age twenty three” provision is a radical change to current law.

Notably, the termination of child support law only applies to child support paid through a Probation Department. This is because the purpose of the law is to reduce court backlog and shift the burden to custodial parents in order to continue to receive child support. However, the practical effect may be the filing of more court applications than before and raise more questions about the fact-sensitive nature of emancipation.

It is important that persons receiving or paying child support through a Probation Department consider obtaining legal advice regarding their rights and more importantly, the rights of the child(ren) under the new law.

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The Legislative Review Clause of the New Jersey Constitution

Communication Workers of America, AFL-CIO v. New Jersey Civil Service Comm’n, ___ N.J. Super. ___ (App. Div. 2016).  Article V, section 4, paragraph 6 of the New Jersey Constitution, approved by the voters in 1992, gives the Legislature the power to “review any [administrative agency] rule or regulation to determine if the rule or regulation […]

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An Intervention Dispute: Is a Denial of a Motion to Intervene Immediately Appealable?

HUNY & BH Associates v. Silberberg, ___ N.J. Super. ___ (App. Div. 2016).  This 2-1 decision of the Appellate Division, issued today, is a rare published opinion on a motion to dismiss an appeal.  Defendant Silberberg filed a motion to intervene in a multi-party lawsuit on behalf of himself doing business as “Right Time,” a […]

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Custody Neutral Assessments (CNA) Found Not to be Admissible as Expert Reports

Custody Neutral Assessments (CNAs), a mostly South Jersey phenomenon, have been described as a supposed alternate dispute resolution program that was available for high conflict cases that were inappropriate for, or are unable to be resolved, through mediation. This program utilizes several mental health practitioners in the community who meet with the parties, discuss contested issues and make clinical recommendations to the court on how to resolve disputed issues.  The way it was supposed to work is that in the counties that use CNAs, after mandatory mediation fails, the Court was to enter an order appointing an evaluator to perform a CNA.  The parties then were to receive notices as to the time and date of their initial meeting. The fee was nominal compared to a full-blown custody evaluation because the parties are paying for approximately 4 hours of the evaluator’s time.  Each of the parties meet with the evaluator and it is up to the evaluator to determine if it would be appropriate for the children, step-parents, etc. to participate.  Unlike a custody evaluation, there is no psychological testing or psychological evaluations.  The evaluator then issues recommendations to the Court which can include custody, a parenting time schedule, anger management, a drug and alcohol evaluation, and recommendations regarding related issues.  Once the Court receives the CNA, the parties are scheduled for a Case Management Conference at which point the Court determines whether to accept, reject or modify the CNA recommendations.  At this hearing, the party that is dissatisfied with the CNA can request a custody evaluation if the CNA involves a change in custody or custody determination.

However, what was supposed to be a non-binding dispute resolution tool often became some more than that though many practictioners questioned how this could be so.  In fact, when I wrote the Custody chapter in the most recent edition of New Jersey Family Law Practice, published by ICLE, I wrote:

            While this process may be a way to get some level of expert involvement in cases that cannot afford a full-blown evaluation, or a way to ferret out bad-faith, anger driven or other “custody cases” that are not truly bona fide custody disputes, there are certainly causes for concern with the process.  First, given that the CNAs are abbreviated, it seems unlikely, if not impossible that the recommendations being made are based upon a reasonable degree of psychological certainty.  See N.J.R.E. 702, 401 and 402.  See also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed. 2d 469 (1993); James v. Chevron U.S.A., Inc., 301 N.J. Super. 512 (App. Div. 1997), aff’d 155 N.J. 279 (1998)(which held that Daubert applied in New Jersey).  See also Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167 (1999).  As such, they would be legally inadmissible at trial and little more than a net opinion.

Further, if this is a method of alternate dispute resolution, one wonders whether it is proper that the court is being provided with these so-called “recommendations” made after limited involvement with the parties and perhaps no involvement with the children.  To the extent that the process is meant to evoke a settlement, does the reporting of the recommendations to the court violate N.J.R.E. 408?  Though it is clearly not mediation, should a confidentiality standard that applies to mediation also apply to a CNA?  See Lehr v. Afflito, 382 N.J. Super. 376 (App. Div. 2006).  If it is an alternate dispute resolution method that may have binding implications, should there not be heightened procedural safeguards as there are now required for arbitration of custody matters?  See Fawzy v. Fawzy, 199 N.J. 456 (2009).

If and when there become more widespread implementation of CNAs, perhaps some of these questions will be answered.

 

Well, it took almost 5 years since I wrote those words, but the question was just answered by Judge Jones in his unpublished decision in the  case of Serrano v. Urbano released on December 1, 2016 when he held that CNAs were not evidential as an expert report, though the preparer could testify about what was told and “his or her professional impressions and concerns regarding such statements or actions which the assessor personally witnessed and/or experienced in his or her contact with either party during such process, if relevant to the best interests of the child at issue.”

Of note, Judge Jones held that:

A C.N.A., however, is not a “mini-evaluation,” or an “express evaluation”, or a “discount evaluation. Most particularly, the C.N.A. generally does not involve any forensic psychological testing of either party. Nor are there generally any bonding evaluations between the parties and child. In fact, the assessor may not even meet the child, and may not include an analysis of the statutory custody factors under N.J.S.A. 9:2-4. Rather, unless otherwise agreed, the assessor generally meets with the litigants for a limited period of time, converses with them separately, and renders a report .

More importantly, the Judge held:

When an expert has not conducted a forensic custody evaluation to serve as the foundation for a recommendation, any “expert forensic opinion” rendered by the professional regarding custody, as rendered in the content of a C.N.A., cannot be admitted into evidence as the results of a full forensic evaluation, because no such evaluation ever took place. An expert forensic opinion on custody without a forensic evaluation is essentially a net opinion. Moreover, the assessor in this case, though a mental health professional, was not a forensic psychologist.

That, however, is not the end of the analysis because the Judge also held that:

Under the doctrine of limited admissibility, however, the testimony and C.N.A. report of the assessor is admissible in part on the issue of the parties’ words, actions and conduct during the C.N.A. process, as well as any impressions and concerns the assessor experienced in witnessing same.

The first part of that essentially renders the preparer of the CNA a fact witness which seems consistent with the Rules of Evidence in terms of admissibility.  However, most fact witnesses are not permitted to testify about their opinion. Since impressions and concerns are essentially opinions, this seems to provide a way to get in through the back door what you can’t get in through the front door.  Since this is both a trial court and unreported decision, it is not precedential on any other trial judge, thus, the argument that the court should not consider the preparer of the CNA’s “impressions” or “concern” remains a viable one to make.

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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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