Judge Michael Patrick King, one of the longest-serving members of the Appellate Division, died on November 25, as was revealed publicly today here. A graduate of Fordham University and the University of Pennsylvania School of Law, he was in private practice with a Camden County law firm for twelve years until being appointed to the […]
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If you are like most Americans, you associate the Thanksgiving holiday with a few key traditional symbols: turkeys, family dinners and maybe a pilgrim or two. But for police, the holiday season means something different, an influx of intoxicated drivers and accidents.
Chief Justice Rabner announced today that Judge Lisa Rose will be temporarily assigned to the Appellate Division effective January 2, 2018. Judge Rose, who had been temporarily assigned to the Appellate Division from September 11-November 19, 2017, currently sits in the Civil Division in Hudson County. She comes up for tenure in July 2018.
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It is well accepted law that an Executor of an Estate may use Estate assets to defend any challenges levied against the Will and any provisions contained therein. So long as what is challenged is the Will itself or a provision therein, an Executor may hire an attorney to defend the Estate. Any counsel fees incurred in defending against a challenge to the Will would be payable through the Estate by the Executor. On the other hand, there are limitations as to when an Executor may utilize Estate assets to defend against claims related to non-probate assets.
While it is acceptable for an Executor to utilize Estate assets to defend against challenges to a Will or a provision therein, a different standard applies if a challenge is levied against a non-probate asset. A non-probate asset is defined as an asset which does not pass through the Decedent’s Estate, but instead, may pass by right of survivorship, or another instrument outside of the Last Will and Testament. At times, these non-probate transfers may benefit the Executor of the Estate to the exclusion of other beneficiaries of the Estate. If a challenge is levied against a non-probate transfer, however, an Executor is forbidden from utilizing Estate assets to defend against a challenge to non-probate assets which solely benefits the grantee. The case law is well established that an Executor or other person may not utilize Estate assets to defend a transaction which benefits only the Executor to the exclusion of the Estate. Should such payments made by an Executor utilizing Estate assets, these assets may be payable back to the Estate.
Often times during a Will contest there may be a challenge levied against both the Last Will and Testament or provision therein, as well as to the transfer of non-probate assets. An Executor which is defending such an action must be careful to clearly identify when counsel fees are generated on defending the Will or any provision therein, as compared to when counsel fees are generated concerning non-probate assets. The counsel fees must be clearly separated and delineated so that Estate assets are not improperly utilized to pay for the defense of non-probate assets which benefit the solely Executor or other person.
It is suggested that in the context of a Will contest, that an Executor carefully consult with their attorney to make sure that the delineation of counsel fees are clearly separated between probate and non-probate assets. The attorneys at Stark & Stark are well versed in asserting defenses on behalf of an Executor concerning challenges to both probate and non-probate assets.
Currently, there is much litigation about rent control, including cases such as this one. But the subject of rent control is not new. Instead, in our state courts, it goes back at least as far as the immediate post-World War II era, as reflected by Jamoneau v. Harner, 16 N.J. 500 (1954), which was decided […]
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Amicably settling your divorce matter is almost always better than taking your chances at a trial before a trial judge who knows almost nothing about your life. Not only can settling save you substantial time and expense as compared to continued litigation, but also it provides you with the opportunity to end the case on your terms while removing the risk associated with an uncertain trial decision.
To that end, settling also means potentially agreeing to terms that are not necessarily what the law may provide. As Uncle Ben once said to a young Peter Parker, “with great power comes great responsibility.” It is critical that you are not only entering into your agreement voluntarily, but also that you actually know what you are agreeing to. Sounds simple enough, but litigation oftentimes follows when disputes as to the terms of an agreement arise. This was the situation in T.L.H. v. M.H., wherein the parties’ definition of cohabitation as an alimony-modification event was more expansive than that provided by law. Specifically, the subject settlement agreement there provided that alimony would terminate:
[U]pon the death of either party, or the marriage or cohabitation of [plaintiff]. The term “cohabitation[,”] in addition to its meaning as construed by New Jersey courts, shall also incorporate the scenario if [plaintiff] should take up residence with any family members (other than the children of the parties) or friends.
Solidifying the parties’ respective understanding as to the terms of the agreement, it also provided therein:
In arriving at this agreement both [plaintiff] and [defendant] had an opportunity to obtain the assistance of separate legal counsel and to be advised regarding the legal and practical effects of this [a]greement. . . . The parties have read this agreement in its entirety and each of them has entered voluntarily into this agreement. They have consented to and assume all of the covenants herein contained, having read the same and having fully understood them. They both acknowledge that it is a fair, just and reasonable agreement and [is] not the result of any fraud, duress, or undue influence exercised by either party upon the other or by any other person and that there have been no representations, warranties, covenants, or undertaking other than those as set forth herein.
Post-divorce, the wife moved in with her sister after she was forced out of the former marital home due to a sheriff’s sale. The husband, as a result, stopped paying alimony, which caused the wife to file a motion to enforce the agreement. In response, the husband moved to terminate alimony based on the wife’s cohabitation as defined by the parties’ agreement.
While not necessarily relevant to addressing the unambiguous language of the agreement, the husband argued that he negotiated the cohabitation provision because he knew the wife would ultimately move out of the former marital home and in with family. The wife argued that she negotiated a higher level of alimony because she knew her expenses would increase after she left the home. At the core of the wife’s argument was her position that living with someone is different than cohabitation. Specifically, she argued her understanding that cohabitation meant someone else was, at least to a significant extent, “supporting” her.
Relying on the language of the parties’ agreement, and both public policy and case law supporting the reaching and enforcement of private agreements, the trial court enforced the cohabitation provision and terminated alimony.
On appeal, the wife argued that: (1) a plenary hearing should have been held to address a genuine issue of fact regarding the parties’ intent in agreeing upon the cohabitation provision; (2) the trial court improperly failed to addressed existing economic circumstances at the time enforcement was sought. In affirming the trial court, the Appellate Division reiterated public policy favoring settlement and the enforcement of unambiguous language, while noting how a court cannot rewrite an agreement to provide for terms better than that bargained for by the parties. The Court also referenced cohabitation jurisprudence wherein the voluntarily agreed upon language of an agreement as to such issue can be subject to enforcement even when differing from that provided by law (as to what cohabitation is, the impact of cohabitation on alimony, and the like).
In so holding, the Court noted as to the facts at hand:
Here, there were no compelling reasons to depart from the clear, unambiguous, and mutually understood terms of the MSA. The agreement was voluntary, knowing and consensual, and the alimony-termination event upon cohabitation was fair under the circumstances of the case. We agree with the court’s finding that, while residing with her sister does not rise to the level of cohabitation under Konzelman, supra, plaintiff understood that residing with her sister was an event that could trigger termination of alimony under the description of cohabitation specified in her MSA. In our view, the explicit terms in the MSA obviated the need for a plenary hearing. Accordingly, we find no error in the court deciding the cross-motion on the papers.
The takeaway from this case is that while a litigant has great power to settle a case as the preferred approach over litigation, with great power comes great responsibility to know and understand that to which you have agreed.
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Under the aegis of the Supreme Court’s Historical Advisory Board, which Chief Justice Rabner formed last year, the judiciary has launched a virtual museum dedicated to the history of the Supreme Court. The virtual museum can be accessed here. The museum includes a brief overview of the post-1948 Court, excerpts from the proceedings of the […]
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When a condo owner in arrears on assessments declares bankruptcy, a condo association often expresses concern about the effect of the bankruptcy on its ability to collect pre- and post-bankruptcy assessments.
The bankruptcy code states that fees or assessments that become due and payable after filing for bankruptcy protection are exempt from discharge. Any amounts owed prior to the filing the bankruptcy case are included in the discharge but may be reduced to liens against the property.
Under the New Jersey Condominium Act, NJSA 46:8B-21 (b), a condo association is entitled to a limited priority lien – over previously recorded liens (including mortgages) – for six months of “customary condominium assessments.” This statutory priority ensures that condo associations will be paid for some of the delinquent assessments instead of having their entire lien extinguished in foreclosure sales. Foreclosures often go hand in hand with bankruptcy.
In a Chapter 7 bankruptcy, pre-petition delinquent assessments are discharged as to personal liability of the debtor. A lien may be filed against the property. Post-petition assessments are not dischargeable. Thus, the debtor remains responsible to pay the fees until the property is sold or transferred.
In a Chapter 13 bankruptcy, if the owner stays in the home and retains ownership, the owner is responsible to pay pre- and post-due fees.
Aside from the six month statutory priority lien, in a Chapter 13 bankruptcy, the concern is that at the completion of the debtor’s Plan, remaining post-petition fees after the priority lien may be discharged as wholly unsecured. If the mortgage on a property exceeds its value, the community association’s lien may be stripped off the property, making the lien unsecured. A homeowner may seek to avoid or reduce the amount of the condo association’s secured claim if the bankruptcy court treats it as a statutory lien. Statutory liens in a Chapter 13 case can be avoided or stripped down to the extent they impair equity in the property. If the lien is stripped off, the owner would not be personally liable for payment but the association would retain an interest in the property as a secured creditor. The association may then pursue its lien through foreclosure. However – what about the all too common situation involving a property that is valued less than the mortgage encumbering it?
In In re: Mark and Ronda Rones, an amicus brief from the Community Associations Institute supported the community association’s successful challenge to an owner’s attempt to strip the assessment lien off the subject property. Reversing a Bankruptcy Court decision that allowed a condominium owner to avoid paying a lien in full under a Chapter 13 plan, the District Court found that an association’s lien may have priority. The issue in these cases is whether a condominium lien is a fully secured claim under bankruptcy law, or a partially secured claim which may be “stripped off” in a bankruptcy plan.
In the Rones case, the Whispering Woods Condominium Association’s recorded a lien for $18,761 for unpaid association fees and assessments – $1,494 was subject to the statutory six-month priority over the existing mortgages. The property was worth $170,000 and encumbered by a $288,063 mortgage. Due to the “under water” property value, under bankruptcy law, only the $1,494 six month priority lien and part of the first mortgage had priority. The bankruptcy court held that the balance of the association’s claim was unsecured and could be modified – and treated as an unsecured claim.
On appeal, the District Court reversed, finding that the condo association held only one lien, with limited priority, which could not be modified because it was partially secured by the six-month statutory priority under the Condominium Act. As a result, the District Court held that the condominium lien must be paid in full.
The takeaway is that although many condo associations fear that an owner’s bankruptcy will negatively affect their ability to collect unpaid assessments, this is not necessarily so after the New Jersey Condominium Act’s interplay with the bankruptcy code. A community association should contact its attorney if it plans to challenge a bankruptcy petitioner-homeowner’s attempt to strip an assessment lien from the property.
Benjamin Franklin once famously said that, “In this world nothing can be said to be certain except death and taxes.” President Trump’s recent tax reform proposal is the administration’s attempt to alleviate one of these certainties of life.
President Trump’s proposal, which was released on Sept. 27, contained the following changes for individual taxpayers:
Congress was supposed to issue the draft of the legislation on Nov. 1, but delayed the release after failing to finalize some of the details.
One apparent sticking point is the elimination of itemized deductions, especially the deduction for state and local taxes. The elimination of this deduction is estimated to raise between $1.3 trillion and $1.8 trillion over a decade, making it a significant revenue-raiser. Taxpayers in high-tax states, such as New Jersey and New York, however, will be significantly affected if this deduction is eliminated.
Since the release of the president’s tax reform proposal, the Trump administration has indicated that they are open to limiting the deduction for state and local taxes, instead of fully eliminating the deduction. The House Ways and Means Committee Chairman, Kevin Brady, however, has indicated that the legislation will fully eliminate the deduction for state and local taxes. The latest possible compromise is that a deduction will remain in place for state and local property taxes, but not for state and local income taxes.
The other debate that has arisen is whether a limit would be imposed on pre-tax contributions to 401(k) plans, which for four decades have helped millions of Americans save for retirement. The current maximum amount that can be contributed annually is $18,000. The idea that has been floated is to limit 401(k) contributions to $2,400 per year.
Limiting 401(k) contributions would generate tax revenue to offset the tax cuts of President Trump’s plan. Limiting the contributions, however, also runs the risk of alienating taxpayers who participate in their employers’ 401(k) plans. Since most employers no longer offer a pension benefit, a 401(k) plan is an employee’s only option for retirement savings. Limiting 401(k) contributions also runs the risk of alienating Wall Street, because many companies and institutions generate fees for managing 401(k) plans. Substantially lowering the amount that can be contributed to 401(k) plans will affect Americans at all income levels.
Returning to Franklin’s quote about death and taxes, what about eliminating the estate tax? Currently, the Federal estate tax is only imposed on single taxpayers who are worth $5.49 million or more at their death; married couples are taxed if their combined wealth is $10.98 million and above. The non-partisan Tax Policy Center has estimated that only 5,000 families nationwide are expected to pay estate tax this year. So the elimination of the estate tax will not affect the vast majority of Americans.
For businesses, the Trump proposal suggests the following changes:
The theory is that businesses, with the savings from these tax cuts, would invest and spend more, boosting demand for goods and services and pushing wages up. A report by tax experts from Boston University and MIT generally supports this view, finding that the cuts would boost wages by 4 percent to 7 percent after inflation. Another report, however, by the Tax Policy Center found that middle-income taxpayers would receive less than 10 percent of the benefit of a corporate tax rate cut, while the top 20 percent of taxpayers would receive about 70 percent of the benefit.
The president’s proposal was released on Sept. 27, and he wanted a bill on his desk by year-end. House and Senate Republicans are now hoping to pass separate tax bills before Thanksgiving, resolve the differences in the two bills in December, and send a final version to the president for signature before the first of the year.
Besides the certainty of death and taxes, it looks like we can also be certain that nothing is certain when it comes to tax reform legislation.
Thabo v. Z Transportation, ___ N.J. Super. ___ (App. Div. 2017). Under Rule 4:23-5, failure to make discovery can, in certain circumstances, result in dismissal of a complaint with prejudice. But Rule 4:23-5 contains “strict notice requirements” that embody “due process protections,” as Judge Fuentes said in his opinion today in this appeal. In this […]
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Greenbriar Oceanaire Community Ass’n, Inc. v. U.S. Home Corp., ___ N.J. Super. ___ (App. Div. 2017). [Disclosure: I represent U.S. Home, though not in this case]. In today’s decision in this appeal, which involved a dispute over which claims asserted by a homeowners association against the developer of the properties, Judge Fisher, writing for the […]
The post To Resolve an Arbitrability Dispute, Cut the Complaint in Two, the Appellate Division Says appeared first on Appellate Law NJ Blog.
Yesterday and today, the Supreme Court did what it does not often do: affirm a decision of the Appellate Division substantially for the reasons expressed by the Appellate Division, rather than writing its own fully-expressed opinion. Yesterday’s ruling, in Granata v. Broderick, ___ N.J. ___ (2017), affirmed a decision by Judge Guadagno that was reported […]
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Sparroween, LLC v. Township of West Caldwell, ___ N.J. Super. ___ (App. Div. 2017). Plaintiffs operated the Cigar Emporium in West Caldwell. In that business, they sell tobacco products, but they also make tobacco products available to be smoked on the premises. After plaintiffs had obtained development approvals from the municipal Planning Board, the Township’s […]
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The Supreme Court announced that it has granted review in two new cases. The first is In re William R. Hendrickson, Jr. The question presented there, as phrased by the Supreme Court Clerk’s Office, is “What is the appropriate standard of appellate review of a final agency decision when the initial decision of the administrative […]
The post The Supreme Court Will Decide an Administrative Law Standard of Review Issue and a Ruling Involving PIP Benefits appeared first on Appellate Law NJ Blog.
In general, a contractor or supplier is entitled to file a lien against a commercial property if they have performed work or provided materials pursuant to a written contract with the owner. These lien claims must be filed within 90 days of the last date of providing materials or services for the project.
On the other hand, if a contractor or supplier is providing materials or services for a tenant of a commercial property, the rules are different. The differences as to what the lien may attach to are discussed in detail below.
If the tenant of the property entered into a contract for the improvement of the property and the owner directly authorized the improvement in writing, the lien may attach to the real property. The proper way to ensure that a lien may attach to the real property is to have the owner of the property sign off on and approve any contract for the improvement of the real property.
As a contractor or supplier, it is suggested that you obtain the owner’s authorization which would thereby allow you to assert a lien claim against the property itself in the event of non-payment. This can become a very powerful tool on collecting an unpaid balance, as an action to foreclose upon the lien could be brought. This would place a great deal of pressure on the tenant to pay the outstanding balance.
Conversely, if the owner of the property does not sign off on or agree to the improvement to the real property, a lien claim would only attach to the lease hold interest of the tenant. Under these circumstances, the lien claim would not attach to the real property itself, but instead, solely to the lease hold interest held by the tenant.
The question then becomes what would be the value of the lease hold interest.
Depending upon the use of the property by the tenant, the lease hold interest could be quite valuable, or it may be close to worthless. Obviously, if the tenant is fully invested in the property the lien claim may carry substantial value, as it may force the tenant to satisfy the claim. Then again, if the lease hold interest is solely an office or two within a commercial property the lien claim may not possess significant value.
The above provides a general overview as to a lien claim on a commercial property which is occupied by a tenant. It is suggested, as a contractor or supplier, that you have the owner sign off for improvements. This gives you greater leverage when attempting to collect on a lien claim, and also, could force the sale of the property to satisfy same.
In either event, should you perform work on a property occupied by a tenant, it is suggested that you consult with an attorney to best secure the work you provided.
Everyone makes mistakes; some are at best inconsequential like forgetting to turn the lights out when you leave the room . Some carry with them huge life consequences that can alter your future. Every time you get behind the wheel of a vehicle intoxicated there is the possibility that when you get out, your future will be permanently altered. You could potentially end yours or someone else’s life. Walking away from one DUI should be enough to never make the mistake again. However that's often not the case, this is a glimpse into the fines and penalties that will be incurred if you receive your second or third offense.
On this date in 1956, the Supreme Court decided Friedman v. Tappan Development Corp., 22 N.J. 523 (1956). Like Newark Publishers’ Ass’n v. Newark Typographical Union, 26 N.J. 419 (1956), decided just one week earlier, Friedman was an opinion by Justice Heher that stated fundamental principles of contract law that continue to be cited today. […]
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A Gallup poll released in October showed that 64% of Americans favor the legalization of marijuana, the highest percentage ever. Eight states have already legalized the sale and distribution of it. During the recently concluded race for Christie's governorship, legalization was seen as a major ballot issue.
Hamer v. Neighborhood Housing Services of Chicago, ___ U.S. ___ (2017). In Bowles v. Russell, 551 U.S. 205 (2007), the Supreme Court of the United States explained that an appeal filing deadline mandated by statute is jurisdictional, meaning that a late filing requires dismissal of the appeal. But a time limit contained in a rule […]
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There are a multitude of reasons why you would plead guilty to a traffic ticket. You may not have the time to appear in court, or you may want to pay it and forget it. It's understandable, with how hectic life can be to not put too much worry into a moving violation
Very recently, last week in fact, I wrote an introductory blog about the many reasons it’s so difficult to win a medical malpractice lawsuit. An appeals court in New Jersey this week has stricken down a $1.25 million settlement after it found the terms of the settlement were not agreed by the Defense.
Divorcing parents often ask whether a judge listen to a child’s preference in a custody dispute. The answer is maybe – it depends on many factors, including the age of the child.
In determining an award of custody, a judge must consider the factors set forth in N.J.S.A 9:2-4, which provides that:
In making an award of custody, the court shall consider but not be limited to the following factor: the parents’ ability to agree, communicate and cooperate in matters relating to the child; the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child’s education; the fitness of the parents; the geographical proximity of the parents’ homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents’ employment responsibilities; and the age and number of the children.
Court Rule 5:8-6 requires a plenary hearing where the Court finds that custody of children is a “genuine and substantial” issue. As part of the hearing, the court may, on its own motion or at the request of a party, conduct an interview with the children. “May” is the key word as the Rule leaves the final decision whether to interview a child in a contested custody case to the discretion of the trial judge, to be guided by the best interests of the child standard. In the absence of good cause, the decision to conduct an interview shall be made before trial. If the judge decides not to conduct an interview, he or she must place the reasons on the record.
In Beck v. Beck, the Supreme Court of New Jersey held that in custody determinations, the preference of children of “sufficient age and capacity” must be accorded “due weight.” In that case, the parties were granted joint legal and physical custody of their two children, although neither party requested joint custody. The trial court nonetheless found joint legal and physical custody to be in the best interest of the children. The mother appealed and the Appellate Division reversed and remanded. The children were eight and ten years old at the time of trial. The trial court interviewed them privately, concluding that they had been persuaded to state their preference and that the mother’s negative attitude toward joint custody had “consciously or unconsciously spilled over” to the children. The Supreme Court found that based on the trial judge’s finding, combined with the ages of the children, a determination that did not fully accommodate the children’s express wishes for custody to be awarded to their mother was not unreasonable. The Supreme Court concluded that the trial court had correctly taken the children’s preferences into account in making its decision.
In Mackowski v. Mackowski, the Appellate Division held that a 16-year-old child’s preference to live with one parent constituted a prima facie showing of a change in circumstances, warranting a review of custody. The panel held that in order to properly assess the child’s ability to participate in the decision-making process, the Court could not rely on affidavits or letters. Rather, a hearing was required because the child has a statutory right to be heard by the decision-maker if he or she is of “sufficient age and capacity to reason so as to form an intelligent decision.”
The best interests of the child standard is used in custody decisions. While a child may have a strong opinion about what he wants, the Court will evaluate the circumstances to determine the “due weight” to be accorded to the child’s wishes. The preference of an older child may be given greater weight than the preference of a younger child.
There are a multitude of reasons why a child may want to live with one parent rather than the other. Sometimes as a child reaches adolescence, he or she wants to live with the parent of their same gender. In some cases, living with one parent would allow a child to attend school in a better district or allow more contact with other family members.
If the Parent of Primary Residence plans to relocate out of state, the child may want to stay in New Jersey with his or her other parent. A child’s desire to live with one parent rather than the other can also arise when a parent enters another relationship, especially if the new person moves into the home where the child is living.
The determination whether the child should be interviewed becomes especially sensitive in such circumstances. A Court may find it useful to interview a child in those circumstances where a desire to live with one parent is requested in reaction to a change in life circumstances. Nothing is permanent and six months down the road, the other parent may accept an out of state job offer or enter another relationship.
An important part of N.J.S.A 9:2-4 states that a court “shall order any custody arrangement which is agreed to by both parents unless it is contrary to the best interests of the child.” Before asking a Court to decide where their child will live, the parents try to reach a custody arrangement between themselves, with the guidance and advice of their attorneys.
If you are anyone you know have questions about custody, it is important to meet with an experienced attorney that specializes in Family Law.
If you have turned on the news in the last few years, in the last twenty years even, you’ll have heard about the issue of immigration. Notably in the decision by the Trump administration to push to end DACA and the recent calls to end the ‘diversity lottery.’
On Tuesday State Attorney General Christopher Porrino filed a lawsuit in Essex County Superior Court against Purdue Pharma. Purdue is the manufacturer of the opioid OxyContin. The suit seeks to connect the marketing aimed at those with chronic pain to the ongoing national opioid addiction crisis which has hit New Jersey incredibly hard. A National Survey on Drug Use and Health states that 75 percent of all opioid misuse begins with people using medication that wasn’t prescribed for them. They receive it often from family and friends who had at some point a need for it.
Kadonsky v. Lee, ___ N.J. Super. ___ (App. Div. 2017). In this appeal, plaintiff petitioned the New Jersey Division of Consumer Affairs (“the Division”) to have marijuana rescheduled from a Schedule I Controlled Dangerous Substance to a Schedule IV or V substance. The Controlled Dangerous Substances Act, N.J.S.A. 24:21-1 to -56, which gives the Director […]
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