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

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

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

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

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

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

An unpublished case was just recently decided by the Appellate Division that touched on this issue.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

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

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

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

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

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

This is just one example of how a judge has dealt with this increasingly common situation. However, judges are frequently placed in these precarious situations, where the parties have exceeded a reasonable lifestyle based upon their income as compared to their expenses. In the case of Ponzetto v. Barbetti, the judge crafted a remedy that was equitable given the specific circumstances of the case.
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Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.

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Summary Judgment for Breach of Settlement Agreement Reversed Due to Issues of Fact

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

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Can the Parent-Child Bond be Restored After Alienation?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(1) Differentiate real alienation from legitimate concerns about abuse or neglect;
(2) Order parents to intensive therapy programs and ensure that resulting treatment plans are complied with; and
(3) Overlook the supposed desires of an alienated child to see that he or she has never stopped loving their parent, but has just been brainwashed to accept untrue and very destructive beliefs.
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Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.

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NJ Supreme Court Finds Law Against Discrimination Protects Employees Going Through Divorce

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

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

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

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

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

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

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

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

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*image courtesy of google free images.

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

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

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

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

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

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

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

Non-Compliance with Custody or Parenting Time Orders:

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

Non-Compliance with Alimony or Child Support Orders:

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

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

So why the disconnect?

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

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

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

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

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

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

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

It appears that judges are “getting real” about compliance. Whether it means the imposition of counsel fees against an overly litigious party or community service, a more clear message is being sent by these judges that non-compliance will not be tolerated.
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Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.

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