For the year 2005

ALIMONY                  

GORDON V. ROZENWALD, 380 N.J. Super. 55 (App. Div. 2005) Before Judges Skillman, Grall and Riva.  Opinion delivered by Grall, J.A.D.                    

Issue:  Whether the statutory standard for modification of limited duration alimony, set forth at N.J.S.A. 2A:34-23c, applies retroactively to orders, judgments or agreements entered prior to the effective date of the statute.  N.J.S.A. 2A:34-23c provides that “…limited duration [alimony] may be modified based either upon changed circumstances, or upon the nonoccurrence of circumstances that the court found would occur at the time of the award.  The court may modify the amount of such an award, but…not…the length of the term except in unusual circumstances.”

Holding:  The court held, after a scholarly analysis of the law, that N.J.S.A. 2A:34-23c should be applied retroactively on a motion to modify term alimony regardless of the date of the agreement or order.   The moving party, who sought to convert 15 year term alimony to permanent alimony, failed to prove that a condition or expectation had not been realized or that there were unusual circumstances.  An increase in a supporting spouse’s income is not relevant to the duration of the alimony award.

KEAN V. COMMISSIONER OF INTERNAL REVENUE, 407 F.3d 186 (Ct. App. 2005)  Before Scirica, Chief Judge, and Roth and Van Antwerpen, Circuit Judges.  Opinion delivered by Van Antwerpen, Circuit Judge.

Issue:  Whether unallocated pendente lite support payments made from a husband to a wife and 3 children in a divorce proceeding constituted alimony for purposes of tax treatment.

Holding:  The payments must be considered alimony for tax treatment.  Pursuant to  I.R.C. 71(b)(1)(A), in order to constitute alimony, (1) the payment must be received by one spouse under a divorce or separation agreement; and (2) there must be no liability on the part of the payor to make such payments after the death of the payee.  In the case at bar, both requirements were satisfied since (1) the wife had control over the funds received from the husband; and (2) despite the fact that the pendente lite order did not state that the pendente lite obligation was to terminate upon the wife’s death, since pendente lite orders do not survive the death of a payee pursuant to the law of New Jersey, there was no liability on the part of the husband to continue to make the pendente lite payments after the wife’s death. 

MANI V. MANI, 183 N.J. 70 (2005) Opinion delivered by Justice Long.

Issue:  Whether marital fault is a factor in the determination of alimony and the award of counsel fees.  (NJSA 2A:34-23(g) provides that except for no fault divorce, the court may consider the grounds for divorce in determining alimony.)

Holding:  The Supreme Court held that fault is not a factor that should be considered in the determination of alimony except in two very specific and narrow situations:  1) where fault has affected the parties’ economic life (e.g., where one spouse has gambled away all of the parties’ savings and other assets are insufficient for the other spouse to be made whole) and 2) in cases where there is egregious fault (e.g., where the dependent spouse attempted to murder the other or where the dependent spouse knowingly exposed and infected the other spouse with a loathsome disease)  which so shocks society’s conscience such that continuing the economic bonds between the parties would confound notions of simple justice.  

            The court further held that fault in the marriage is not a factor to be considered with regard to an award of counsel fees.  Rather, the court must consider whether the party is in financial need, whether the party against whom fees are sought has the ability to pay the fees, and the good or bad faith by either party in pursuing or defending any aspect of the litigation.  The good or bad faith factor deals only with conduct in the litigation, not the marriage.

OVERBAY V. OVERBAY, 376 N.J. Super 99 (App. Div. 2005)  Before Judges Coburn, Wecker and Graves.  Opinion delivered by Graves, J.A.D.

Issue:  Whether the trial court erred by imputing income to the defendant/wife at a rate of 7.4% in accordance with Miller on her inheritance assets in determining an appropriate alimony award.  (The defendant’s actual rate of return was 2%.)

Holding:  The trial court did err by imputing income to the wife at the rate of 7.4% as in Miller v. Miller.  The court should have considered the specific facts in this case, including her age (58), her serious health problems, her limited employment income, her history of investment planning, aversion to risk and her stated desire to preserve capital.  The formula set forth in Miller was not intended to establish a universal rule to be applied in every case.  Based on Miller, when a spouse possesses investments that otherwise have the ability to generate additional earnings without risk of loss or depletion of principal, but fail to do so, it is equitable and appropriate to impute a more reasonable rate of return to the asset comparable to a prudent use of investment capital.  The court reversed and remanded the matter to the trial court.

STENEKEN V. STENEKEN, 183 N.J. 290 (2005) TA \l "STENEKEN V. STENEKEN,
 183 N.J. 290 (2005)" \s "STENEKEN V. STENEKEN, 183 N.J. 290 (2005)" \c 1   Opinion by Rivera-Soto.

Issue:  Whether it is an impermissible “double-dip” for a trial court to use a supporting spouse’s actual income in determining both alimony and the value of that supporting spouse’s business.

Holding:  In calculating a defendant’s alimony obligation, a trial court can include defendant’s actual income.  The use of a business owner’s “excess” income in valuing a business and calculating alimony is fair and consistent with the statutory design and does not constitute an impermissible “double-dip”.  Although alimony and equitable distribution calculations are interrelated, they are separate, distinct and not entirely compatible.  The interplay between an alimony award and equitable distribution is subject to an overarching concept of fairness. 

ARBITRATION

WEINSTOCK V. WEINSTOCK, 377 N.J. Super. 182 (App. Div. 2005)  Before Judges Lintner, Parker and Bilder.  Opinion delivered by Lintner, J.A.D.

Issue:  Is appellate review of an arbitration award permitted under the Alternative Procedure for Dispute Resolution Act (“APDRA”)?

Holding:  Pursuant to the APDRA, appellate review must be commenced by “summary application in the Superior Court for its vacation, modification, or correction.”  N.J.S.A. 2A:23A-13a.  The only appeal permitted under the APDRA “is an expedited summary review to the Chancery Division of the New Jersey Superior Court”.  Mt.  Hope Dev. Assoc. v. Mt. Hope Waterpower Project, 154 N.J. 141, 148 (1998) TA \l "Mt.  Hope Dev. Assoc. v. Mt. Hope Waterpower Project,
154 N.J. 141, 148 (1998)" \s "Mt.  Hope Dev. Assoc. v. Mt. Hope Waterpower Project, 154 N.J. 141, 148 (1998)" \c 1 .  Such a review is limited to those situations where an umpire’s decision “amounts to prejudicial error by erroneously applying law to the issues and facts presented.”  After the court has rendered its determination, “there shall be no further appeal or review of the judgment or decree.”  N.J.S.A. 2A:23A-18b.  Any further review can only occur in “rare circumstances” where “public policy would trigger the general supervisory power of the Courts”.  Mt. Hope, 154 N.J at 152. 

BANKRUPTCY

HESELTON V. MAFFEI, 374 N.J. Super. 184 (App. Div. 2005) TA \l "HESELTON V. MAFFEI,
 374 N.J. Super. 184 (App. Div. 2005)" \s "HESELTON V. MAFFEI, 374 N.J. Super. 184 (App. Div. 2005)" \c 1  Before Judges Skillman, Collester and Parrillo.  Opinion delivered by Skillman, P.J.A.D. 

Issue:  (1) Was the defendant’s obligation to indemnify the plaintiff for any liability she might incur for the mortgage on the former marital residence discharged in Bankruptcy under circumstances where his bankruptcy petition listed her only as a co-debtor and not a creditor?

Holding:  No.  The bankruptcy petition did not give the plaintiff sufficient reasonable notice that his indemnification obligation could be discharged.  Plaintiff may enforce the obligation notwithstanding the bankruptcy.

Issue:  (2)  In re-calculating defendant’s child support, should the court include in plaintiff’s income, the amount of money that defendant was ordered to pay the mortgagor?

Holding:  No.  The money paid by defendant to plaintiff to indemnify her for the claim made by the mortgagor is not deemed alimony and should not be taken into account when applying the child support guidelines.

Issue:  (3)  If a custodial parent removes the children to another state, should there be an adjustment in the child support guidelines to take into consideration the additional expenses incurred by the non-custodial parent in order to exercise parenting time at the out-of-state location?

Holding:  Yes.  Either an adjustment to the guidelines should be made or the custodial parent should directly reimburse the non-custodial parent for the additional expenses.

CHILD SUPPORT

CAPLAN V. CAPLAN, 182 N.J. 250 (2005) Opinion by Wallace writing for a unanimous court.

Issue:  (1)  Should the court impute earned income to a spouse who voluntarily terminated employment and who has sufficient unearned income to meet the needs of the children?  (The husband had earned between $1.7 million and $4.6 million in the five years preceding the divorce.  At the time of the divorce, the husband was unemployed and had not sought employment.)

Holding:  Yes.  The court should impute income to the husband based on his past earning or income even though his potential unearned income was sufficient to cover the children’s needs. 

Issue:  (2)  How should support be determined if the combined net income of the parties exceeds $151,000?

Holding:  a)  Determine the needs of the children

                  b)  Subtract the maximum child support under the guidelines.

                  c)  Apply the statutory factors of N.J.S.A. 2A: 34-23(a) for the remainder of the needs and allocate that amount between the parties.

                  The court noted that other methods may be appropriate as well.

CHRISTENSEN V. CHRISTENSEN, 376 N.J. Super. 20 (App. Div. 2005)   Before Judges Wecker, S.L. Reisner and Graves.  Opinion by S.L. Reisner, J.A.D.

Issue:  Whether a stepparent was equitably estopped from denying his child support obligation under circumstances where the stepparent intended to adopt the child, with the natural father having signed the consent to an adoption and believing that the child had in fact been adopted and relied upon the adoption of the child by the step-parent.   

Holding:  The court must first determine whether or not the natural father’s reliance on the stepparent adoption of the child would now result in financial detriment to the child. The burden is on the natural father to show why he should not be required to pay child support for his child.  If the natural father cannot pay support because he relied on the stepparent supporting the child and the natural father is now financially unable to support the child, the stepparent should be responsible for the support.  The court must determine the needs of the child and the ability of the stepparent and biological parent to meet the needs and the change in the financial status of the biological parent as a result of his reliance on the stepparent’s representation.

R.A.C. v. P.J.S., 380 N.J. Super. 94 (App. Div. 2005)   Before Judges A.A. Rodriguez, Cuff and Weissbard.  Opinion delivered by Cuff, J.A.D.                     

Issue:  Whether a claim under the Parentage Act for reimbursement of child support received by the mother who concealed the true biological father for 31 years, is time barred.

Holding:  Section 45b of the Parentage Act imposes a 23 year statute of limitations for actions under the Act.  The court held that, where the plaintiff believed he was the child’s father until the child was 31 years old and as a result of the purposeful deceit of the child’s mother and biological father, the plaintiff’s claim for reimbursement of child support paid by him through the child’s emancipation, was not time barred.  In so finding, the court applied the doctrine of equitable tolling.  That doctrine applies to prevent a statute of limitations from being used as a sword by a defendant whose own actions contributed to the expiration of the statutory period.  However, defendant’s claims for fraudulent concealment and intentional infliction of emotional distress were dismissed because they were based on a betrayal of marital trust that cannot be remedied by a court in the form of tort damages.

STRICKLAND V. 212 CORP. OF NJ, et al., 380 N.J. Super. 248 (Law Div. 2005)   Before William C. Todd, III, P.J.C.              

Issue:  Whether an attorney representing a plaintiff in a personal injury suit is authorized to distribute the proceeds of a settlement without making payment on child support arrears in another state, where a judgment search conducted pursuant to statute reveals that there are no recorded judgments.

Holding:  The attorney is authorized to release the proceeds under these circumstances (although child support arrears exist in another state, they are not registered or recorded as a lien in New Jersey), provided the distribution is made within 30 days of the judgment search.

CONSTITUTIONAL LAW

LEWIS, ET AL. V. HARRIS, ETC., ET AL., 378 N.J. Super. 168 (App. Div. 2005)  Before Judges Skillman, Collester and Parrillo.  Opinion by Skillman, P.J.A.D.  (This case is now pending decision by the New Jersey Supreme Court.)   

Issue:  Whether the refusal to issue a marriage license to same-sex couples was a violation of state constitutional rights to liberty, privacy, due process and equal protection. 

Holding:   Article I, paragraph 1 of the State Constitution addresses substantive Due Process Rights, including the right to privacy.  The right to privacy “embraces the right to make procreative decisions . . . [and] the right of consenting adults to engage in sexual conduct.”  [Citations omitted.]  The privacy protections in this section of the Constitution also include the right of members of the opposite sex to marry.   In determining whether a claimed right is entitled to the protection of due process, our Supreme Court has directed that the court look to the “traditions and [collective] conscience of our people to determine whether a principle is so rooted [there] … as to be ranked fundamental.”  Utilizing this analysis, the court held that clearly the right of same sex partners to marry is not fundamental.

            The court next examined whether or not the state’s refusal to issue a marriage license to same sex couples was a violation of equal protection.  The court found that there is no constitutional right for members of the same sex to marry.  If and when society accepts the view that same sex couples should be permitted to marry, the Legislature will likely amend the marriage laws.  (See the comprehensive dissenting opinion of Collester, J.A.D which is very instructive.)

IN THE MATTER OF THE PARENTAGE OF THE CHILD OF KIMBERLY ROBINSON, ___N.J. Super. ___ (Ch. Div. 2005)  Before Medina Talbert, J.S.C.

Issue:  Whether a same sex partner should be considered the “other parent” and therefore enjoy the presumption of parenthood under the Artificial Insemination statute, N.J.S.A 9:17-44, to a child conceived by her partner via artificial or “alternative” insemination.

Holding:  After thoroughly analyzing and considering public policy, which seeks to promote the best interests of children; legislative history; and legislative intent, the court held that the same sex partner should be considered the other parent of the child born to her same sex partner.  The court made it clear that the holding is fact sensitive given that this couple had “availed themselves of every legal opportunity open to them to declare they are committed domestic partners, a married couple and a dedicated family.”  The court found that in order to be afforded equal treatment under the Artificial Insemination statute, the person must show indicia of “commitment to be a spouse and to be a parent to the child.” 

COUNSEL FEES

WINE V. QUEZADA, 379 N.J. Super. 287 (Ch. Div. 2005)  Before Rothstadt, J.S.C.

Issue:  Whether an award of counsel fees to the victim of domestic violence was appropriate related to defendant’s motion to vacate a Final Restraining Order under the Prevention of Domestic Violence Act because he claimed he was not properly served.

Holding:  Plaintiff in the Domestic Violence matter was entitled to an award of reasonable attorney’s fees incurred to defend the motion to vacate the restraining order.  This award was governed by the provisions of the Act rather than the Rule governing an award of fees in family law matters.  In domestic violence matters, attorney fees are awarded as compensatory damages; the parties’ financial circumstances have no relevance whatsoever.

CUSTODY

BAXTER V. BAXTER, 423 F.3d 363 (3^rd Cir. 2005)  Before Judges Scirica, Alito and Garth.  Opinion delivered by Scirica, Chief Judge.    

Issue:  Whether the District Court erred by finding that the father of a child had consented to the child’s permanent removal to the United States under article 13(a) of the Hague Convention, thereby defeating his request for the child’s return to Australia.

Holding: The court held that nothing in the record supported the lower court’s finding that the father consented to permanent removal.  The District Court further erred by concluding that the child’s return to Australia would expose him to the risk of psychological or physical harm or otherwise place him in an intolerable situation under article 13(b) of the Convention.  Such a finding requires clear and convincing evidence, which was lacking in this case.  Accordingly, the court reversed the District Court’s Order denying the father’s petition for the child’s return and allowed the child to return to his country of habitual residence.

ENTRESS V. ENTRESS, 376 N.J. Super. 125 (App. Div. 2005)  Before Judges Petrella, Lintner and Parker.  Opinion delivered by Parker, J.A.D.     

Issue:  Whether it was proper for the trial court to summarily change custody from one party to another.

Holding:  In this contentious post-judgment custody matter, the court found that the entry of five post-judgment orders, based upon competing Certifications and reliance upon unsworn letters from a frustrated therapist was “clearly and unequivocally” reversible error.  Absent exigent circumstances, changes in custody are not to be made without a plenary hearing.  As dicta, the court further noted that it is a disservice to the litigants and the court to append a transcript of a settlement to a judgment and is a violation of R. 4:42-1(a)(4).   

FELDMAN V. FELDMAN, 378 N.J. Super. 83 (App. Div. 2005) Before Judges Newman, R.B. Coleman and Holston, Jr.  Opinion by Newman, P.J.A.D.                   

Issue:  What is the primary caretaker’s authority, post-divorce, to determine the religious upbringing of the children and the secondary caretaker’s limitations in this regard when exercising parenting time, where the parties have joint legal custody and the agreement was silent as to religious upbringing?

Holding:  The primary caretaker has the sole authority to dictate the religious upbringing of the children.  The other parent is not authorized to enroll the children in religious classes different from the religion chosen by the primary parent.  However, the non-custodial parent may expose the children to religious services or holiday observances.

GROVER v. TERLAJE, 379 N.J. Super. 400 (App. Div. 2005)  Before Judges Stern, Coburn and Wecker.  Opinion delivered by Stern, P.J.A.D.                

Issue:  Whether and to what extent does the entry of a Domestic Violence Final Restraining Order (“FRO”) have on a defendant/father’s request to modify the FRO to provide for joint legal custody?

Holding:  The presumption in favor of awarding custody to the non-abusive spouse embodied in the Prevention of Domestic Violence Act relates to legal and physical custody.  However, the court recognized that with the passage of time, during which there is not abusive conduct, the presumption lessens.  The presumption must be analyzed in the context of the nature of the DV act committed, the post-judgment circumstances, the passage of time and the relationship that the litigant has with the child.  In this matter, the abusive spouse made an application for joint custody three years after the FRO was entered but only two and quarter years after being placed on probation and only eight months after being discharged from probation.  The court held that the trial court did not abuse its discretion in denying the requested amendment at that time but directed that the defendant was free to make future requests for modification based on changed circumstances.

SILVESTRI v. OLIVA,         __ F.Supp.2d __, 2005 WL 3312937

Issue:  Pursuant to the Hague Convention, did the court err in finding that New Jersey was the children’s habitual residence immediately prior to their retention here?

Holding:  The determination of a child’s habitual residence, which is defined as “the place where [the child] has been physically present for an amount of time sufficient for acclimatization and which has a ‘degree of settled purpose’ from the child’s perspective,” is a question of both law and fact.  In determining whether a child is settled in a new environment, the court should consider: age of child, stability of the child’s residence, attendance at school or day care, stability of custodian’s employment, the child’s friends and relatives in the area and any ties to the country of habitual residence.

STATE v. FROLAND, 378 N.J. Super. 20 (App. Div. 2005)  Before Judges Braithwaite, Lisa and Winkelstein.  Opinion delivered by Winkelstein, J.A.D.                      

Issue:  Whether a custodial parent with joint legal custody can be charged with kidnapping his or her own children.

Holding:  The court held that a parent having custody may be charged with kidnapping.  The kidnapping statute N.J.S.A. 2C:13-1(b) makes it a crime to take or confine a child with the purpose of permanently depriving a parent or guardian of custody.  This is consistent with the Interference with Custody statute (N.J.S.A. 2C:13-4a).    

YANG v. TSUI, 416 F.3d 199 (3^rd Cir. 2005)

Issue:  Whether the District Court erred by abstaining from considering the petitioner’s application filed under the Hague Convention while a custody matter was pending in State Court.

Holding:  Yes, the District Court’s reliance on the Younger abstention rule was in error.  The Petition filed in Federal Court under the Hague Convention should have been heard.  The Younger abstention is an exception to the rule that the pendency of a state court proceeding is not reason for the federal court to decline to exercise jurisdiction.  Younger established a principle of abstention when a federal proceeding would disrupt a state criminal proceeding.  This principle has since been extended to civil and administrative proceedings.

            To be applicable, three requisites must be met before Younger abstention is appropriate:  1)  there must be an ongoing state proceeding to which the federal plaintiff is a party and with which the federal proceeding will interfere; 2) the state proceedings must implicate important state interests; and 3) the state proceeding must afford an adequate opportunity to raise the claims.

DOMESTIC VIOLENCE

Presentation By:  Steven Enis, Esq. and Michael Ascher, Esq.

MITCHELL v. OKSIENIK, 380 N.J. Super. 119 (App. Div. 2005) Before Judges Kestin, Lefelt and Fuentes.  Opinion delivered by Kestin, P.J.A.D.               

Issue: Whether, under the Prevention of Domestic Violence Act, the court has the authority to determine how and when the unmarried parties’ home should be divided.

Holding:  Yes, in this case, the trial judge ordered the sale of the property and the proceeds divided equally.  Although the parties were not married and title was in the name of one party, the court concluded that this was a joint venture and the parties were entitled to seek partition of this property.  The court properly invoked its general equity powers notwithstanding that the scope of remedies provided in the Act did not include the specific relief ordered.  The court further found that the sale of a property is appropriate under partition, where other remedies are not practical as in the present case.  To deny cohabiting and unmarried persons legal and equitable remedies would be unfair.  As a matter of judicial economy, all issues, including disputes over property, should be decided provided that notice is given 

PAZIENZA v. CAMARATA, 381 N.J. Super. 173 (App. Div. 2005) Before Judges Coburn, Lisa and Reisner.  Opinion delivered by Lisa, J.A.D.                     

Issue:  Whether the record in this Domestic Violence matter supported the trial court’s finding of harassment and whether the defendant was deprived of a fair trial by the court’s failure to provide him with a copy of an attachment that contained allegations of domestic violence against him.

Holding:  The court found that the testimony, including the testimony of the defendant, clearly established the finding of harassment; the defendant was not deprived of a fair trial because he did not receive the second and third pages of the Confidential Victim Information Sheet.  In this matter, both parties testified as to the allegations in the Complaint.  Defendant failed to assert surprise or prejudice at the time of the trial and did not request an adjournment.  Although the court offered defendant’s counsel the opportunity for a brief recess to review additional documents, on more than one occasion, he declined the offer.  To the extent there was an error, it was harmless error.

            The Appellate Court expressed concern that pages two and three of the Victim’s Confidential Sheet should be provided to the defendant since they do not contain confidential information but contain relevant information that defendant should be entitled to review.  The court referred the issue to the Supreme Court Family Practice Committee and the Supreme Court’s State Domestic Violence Working Group for their consideration of recommended modifications to the Procedures manual.

PETERSON v. PETERSON, 374 N.J. Super 116 (App. Div. 2005) Before Judges Stern, Graves and Landow.  Opinion delivered by Graves, J.A.D.

Issue:  Whether the evidence presented under the Prevention of Domestic Violence Act was sufficient to warrant the issue of a Final Restraining Order and whether or not the defendant received a fair trial.

Holding:  The evidence presented at this informal trial was not sufficient to sustain the trial court’s entry of a final restraining order.  Plaintiff had failed to meet the burden of proof required under the Act.  Further, the trial court’s failure to permit the defendant/husband to cross examine witnesses or present witnesses in his own defense violated his right to due process.  The matter is therefore reversed and remanded for a new trial.

STATE v. SMITH, 374 N.J. Super. 425 (App. Div. 2005)  Before Judges Skillman, and Parrillo and Grall.  Opinion delivered by Grall, J.A.D.

Issue:  Whether an individual who is questioned by the police in his home while responding to a domestic dispute, is in “custody” for purposes of  Miranda?

Holding:  The appellate division held that the defendant was not in custody, for purposes of Miranda, when he made statements to a police officer who was responding to a domestic dispute call.  A police officer may question individuals present without giving Miranda warnings provided that the inquiries are reasonably related to confirming or dispelling suspicion and the individuals questioned are not restrained to a degree associated with formal arrest or the equivalent of formal arrest.

DIVISION OF YOUTH AND FAMILY SERVICES

N.J. D.Y.F.S. V. L.V.,    Chancery Division on 8/3/05 (2005 WL 3527274)  Opinion delivered by Rothstadt, J.S.C.

Issue:  Whether DYFS met its burden to prove that a birth mother committed an act of abuse or neglect, where the mother was HIV positive and refused to take certain medications during her pregnancy to reduce the risk that the baby would be born HIV positive. 

Holding:  Given the narrow and specific facts in this case, the Court found that DYFS had not met its burden of proving, by a preponderance of the evidence, an act of abuse or neglect.  The focus is on whether the parent under review caused an injury to the child and, if not, whether that parent is likely to do so in the future.

DIVISION OF YOUTH AND FAMILY SERVICES V. D.F., 377 N.J. Super. 59 (App. Div. 2005) Before Skillman, Collester and Parrillo.  Opinion by Skillman, P.J.A.D.

Issue:  Whether it was proper, in a case where the mother was a victim of domestic violence in the home where she resided with her child, for DYFS to enter a mother’s name in the Central Registry of persons who have been identified as having committed an act of abuse or neglect, where the child was not harmed and the Division failed to remove the child from the home or file a protective services action.

Holding:  It was not proper for the Division to enter the mother’s name in the Central Registry under these circumstances.

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES V. DMB AND TBL, 375 N.J. Super 141 (App. Div. 2005) Before Judges Kestin, Lefelt and Falcone.  Opinion delivered by Kestin, P.J.A.D.

Issue:  Whether the trial court erred by not accepting the natural father’s “identified surrender of his parental right” and proceeding with the trial as to the division’s petition to terminate the parental rights of both mother and father.

Holding:  The trial court did not abuse its discretion in rejecting the natural father’s “identified surrender of his parental rights” and proceeding with the trial on the merits  given the limited nature of an identified surrender, which the division rejected because it was not in the best interest of the children to restrict their availabilities for adoption. 

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES V. H.B. AND L.M.B., 375 N.J. Super. 148 (App. Div. 2005)  Before Judges Lefelt, Fuentes and Falcone.

Issue:  Whether a parent can be found to have committed an act of abuse and/or neglect by allowing their spouse, who has been accused of sexually molesting the child, to return to live in the family home with the child.

Holding:  In this fact sensitive case, the Appellate Court held that the trial court’s dismissal of the abuse and neglect case against the mother was error.  The child had made allegations that her step-father had sexually molested her.  The mother entered into an agreement with DYFS that allowed her to maintain custody of her daughter, conditioned, in part, on her agreement not to allow her husband access to the child.  By allowing her husband to return to the family home, where the child was living, the mother violated her agreement with DYFS and placed the child at risk of being abused and/or neglected. 

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES V. F.M., 375 N.J. Super. 235 (App. Div. 2005) TA \l "NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES V. F.M.,
 375 N.J. Super. 235 (App. Div. 2005)" \s "NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES V. F.M., 375 N.J. Super. 235 (App. Div. 2005)" \c 1  Before Judges Cuff, Weissbard and Hoens.  Opinion delivered by Hoens, J.A.D.

Issue:  Whether the trial court properly terminated the parental rights of the biological mother.

Holding:  The Appellate Division emphasized the fact sensitive nature of these proceedings and reiterated the standard that must be applied in making such a determination.  In cases such as this, where the biological parent opposes the termination, the court’s function is to determine if the parent can raise the child without causing harm to the child.  The issue is not whether the parent is fit at that time, but whether they can become fit such that they will be able to properly meet the child’s needs.   The court should apply the best interests standard when balancing the fundamental rights of the parent against the State’s parens patriae responsibility.

EQUITABLE DISTRIBUTION

RANDAZZO V. RANDAZZO, 184 N.J. 101 (2005)  Wallace, J., writing for a unanimous Court.

Issue:  Whether the court is authorized to order the sale of real property prior to the Final Judgment of Divorce and direct how the proceeds should be distributed.

Holding:  Pursuant to NJSA 2A:34-23 and Rule 5:3-5(c), the court is authorized to order the premarital sale of marital real property as well as direct how the proceeds should be distributed when it is financially necessary to do so (i.e. to pay support for the parties pending the divorce) and in a manner that is “fit, reasonable and just.” 

ROBERTSON V. ROBERTSON, 381 N.J. Super. 199 (App. Div. 2005)  Before Judges Skillman, Payne and Francis.  Opinion delivered by Payne, J.A.D.     

Issue:  Whether the court erred by equitably distributing stock options that the Husband received from a new employer three days before the Complaint for Divorce was filed.

Holding:   The trial court erred given the specific facts in this case.  Relying on the holding in Pascale,  the focus should be on “whether the nature of the asset is one that is the result of efforts put forth ‘during the marriage’ by spouses jointly, making it subject to equitable distribution.”  The court found that the stock options at issue were awarded to the husband, three days before the Complaint was filed, to induce him to accept employment with a the new employer and insure his continued employment for at least four years, the time in which the options would vest. The options “in no fashion represented compensation attributable to the couple’s joint marital endeavors.”

SHAH V. SHAH, 184 N.J. 125 (2005) Opinion by Justice Rivera-Soto.        

Issue:  To what extent does New Jersey have authority to protect a person under the Prevention of Domestic Violence Act where the person claims to be the victim of domestic violence in another state and seeks shelter in New Jersey from an abuser who has no contact with New Jersey?

Holding:  New Jersey courts have the authority to issue ex parte relief, in the form of a temporary restraining order, upon a showing both that the “plaintiff is in danger of domestic violence,” and that an Order is required “to protect the life, health or wellbeing of a victim…”  If however, personal jurisdiction cannot be secured over the defendant, the Order may only provide for prohibitory relief (not affirmative relief) and no final restraining order may issue.

ETHICS/MALPRACTICE

FISCHER V. FISCHER, 375 N.J. Super. 278 (App. Div. 2005)  Before Judges Wefing, Fall and C.S. Fisher.  Opinion delivered by Fisher, J.A.D.

Issue:  When an attorney seeks to be relieved as counsel, does a Family Part judge have authority to order an attorney to return a $10,000 retainer to a client that the attorney claimed was earned in order for the client to retain new counsel.  (The client claimed she had no financial ability to retain new counsel.)

Holding:  The Family Part Judge did not abuse his discretion in ordering the attorney to return the retainer to the client when withdrawing from the matrimonial action since the judge’s ruling was without prejudice to the resolution of the parties’ fee dispute in the proper forum.  The judge rightfully exercised his equity powers and was imbued with the jurisdiction to take all reasonable steps in equitably distributing the marital property, which included the retainer.  With specific regard to applications to be relieved as counsel pursuant to R. 5:3-5(d)(2), a court may, in extraordinary circumstances, impose reasonable conditions upon an attorney’s withdrawal so long as the same do not unduly burden the withdrawing attorney. 

                  In a concurring opinion, Judge Fall noted that the return of a retainer to a litigant should be limited to circumstances where the withdrawing attorney has contributed to the need to withdraw (e.g. providing for a non-refundable retainer which is contrary to R. 5:3-5(b)) and there is no other available source of funds to pay counsel fees pursuant to R. 5:3-5(c).

NEWELL, ESQ., ET AL. V. HUDSON, 376 N.J. Super. 29 (App. Div. 2005)  Before Judges Newman, Axelrad and R.B. Colemen.  Opinion delivered by Judge Axelrad.

Issue:  Whether a litigant who lied about her understanding and voluntary acceptance of a property settlement agreement to induce the court to incorporate such agreement into a Judgment of Divorce is later estopped from pursuing a claim of malpractice against her attorney based upon the settlement.

Holding:  The litigant is estopped from pursuing a malpractice claim.  Her sworn testimony in the matrimonial proceeding regarding the fairness and acceptability of the Agreement acts as a bar to her inconsistent statements in the malpractice action.  In her deposition testimony related to the malpractice suit she repudiated her agreement by stating that the Agreement was not fair or voluntary.   If she intentionally lied in the first proceeding to obtain judicial approval of the Agreement so that she could get her divorce, she is subject to judicial estoppel of her legal malpractice claim.  Defendant’s self-serving conduct is precisely the type of behavior that the doctrine of judicial estoppel is intended to prevent.

PUDER V. BUECHEL, 183 N.J. 428 (2005)  Opinion by Justice Zazzali.  

Issue:  Is a litigant, who testifies that a settlement agreement is fair and acceptable and reserves her right to sue her first attorney for malpractice, precluded from maintaining a malpractice action against her former attorney.

Holding:  Based upon public policy and issues of fairness, the litigant is bound by her representations to the trial court that the settlement agreement was fair and acceptable to her, thereby precluding her from maintaining an action against her former attorney for malpractice.

GRANDPARENT VISITATION

DANIELS V. DANIELS, 381 N.J. Super. 286 (App. Div. 2005) Before Judges Coburn, Lisa and S.L. Reisner.  Opinion delivered by S.L. Reisner, J.A.D.         

Issue:  Whether the trial court erred in dismissing a grandmother’s complaint for visitation with her grandchildren where the parents of the children are still married and are unified in their opposition to the visitation?

Holding:  Relying on the Supreme Court’s decision in Moriarty v. Brandt, that grandparent visitation could not be ordered without a showing that the child would be harmed without such visitation; the court held that the trial court did not err.  In this matter, the grandmother’s motion submissions and appellate briefs failed to allege any harm whatsoever.  Trial courts must focus on whether the grandparent has made a “clear and specific allegation of harm to the children.”  General and conclusory allegations, as made in this case (i.e., that the denial of visitation will denigrate the value of a loving relationship with the grandparent), are insufficient.  

MIZRAHI V. CANNON, 375 N.J. Super. 221 (App. Div. 2005) Before Judges Wefing, Fall and Payne.

Issue: Whether grandparents have the right to seek visitation with grandchildren where the children’s parents are deceased and they are adopted by other relatives?

Holding:   The trial court erred by using a best interests standard rather than the applying the Supreme Court’s holding in Moriarty.  The grandparents herein failed to meet their burden of demonstrating that the child would suffer an identifiable harm.  Therefore, the trial court’s order for visitation and reunification was reversed.   Hence, the court did not have to decide, as a matter of law, whether or not grandparents that are related to the adoptive parents are barred from visitation.

MISCELLANEOUS

BANCO POPULAR NORTH AMERICA V. SURESH GANDI, 184 N.J. 161 (2005)  Before Chief Justice Poritz and Justices LaVecchia, Zazzali, Albin, Wallace, Rivera-Soto and Long.  Justice Long writing for a unanimous Court.

Issue:  In an action by a bank against an attorney, whether the attorney’s conduct of advising his client to transfer all of his assets into the name of his wife and issuing an opinion letter on behalf of his client to the creditor representing that to his knowledge no such transaction had occurred, constituted (1) creditor fraud for which a cause of action existed; (2) common-law fraud; or (3) negligent misrepresentation.

Holding:  There is no cause of action in New Jersey for an “amorphous creditor fraud claim that requires plaintiffs to prove neither reliance nor misrepresentation.”  Thus, no cause of action existed against the attorney for creditor fraud or common law fraud.  However, the attorney may be liable for conspiracy to violate the Uniform Fraudulent Transfer Act, N.J.S.A. 25:2-20 to 34 (“UFTA”) due to his participation in the transfer.  “Such an action would require the creditor to prove that the conspirator agreed to perform the fraudulent transfer, ‘which, absent the conspiracy, would give a right of action’  under UFTA”.  Morgan v. Union County Bd. of Chosen Freeholders, 268 N.J. Super. 336, 364 (App. Div. 1993) TA \l "Morgan v. Union County Bd. of Chosen Freeholders,
 268 N.J. Super. 336, 364 (App. Div. 1993)" \s "Morgan v. Union County Bd. of Chosen Freeholders, 268 N.J. Super. 336, 364 (App. Div. 1993)" \c 1 .  The attorney’s actions did not constitute negligence since the attorney’s act of aiding his client in the asset transfer was intended to be done without the bank’s knowledge and, therefore, the attorney’s actions did not result in the bank’s reliance.  However, if the opinion letter issued by the attorney contained misstatements of material facts on which the attorney should have known the bank would rely, the bank has an action for negligent misrepresentation so long as the same was pleaded in its complaint. 

H.K. V. DIVISION OF MEDICAL ASSISTANT AND HEALTH SERVICES, 379 N.J. Super. 321 (App. Div. 2005)  Before Judges Wecker, S.L. Reisner and Seltzer.  Opinion delivered by S.L. Reisner, J.A.D.

Issue:  Whether payments made to the petitioner’s wife pursuant to a “bed and board” divorce reduced the petitioner’s income for purpose of determining his Medicaid benefit Holding:  Recognizing that some portion of an institutionalized spouse’s income may be used to support a spouse pursuant to the both the federal Medicaid statute and New Jersey’s implementing regulations, the court nevertheless held that the alimony payments that the parties agreed upon, and which were incorporated into their judgment of divorce for bed and board, did not properly qualify as a spousal allowance, as defined in the statute, and therefore, that income was properly considered in the denial of his Medicaid benefit.

BURSZTYN V. BURSZTYN, 379 N.J. Super. 385 (App. Div. 2005) Before Judges A.A. Rodriguez, Cuff and Weissbard.  Opinion delivered by Weissbard, J.A.D.

Issue:  Whether the trial court has the authority to compel parties to file joint tax returns and whether it was appropriate to direct that alimony payments to the wife be held in escrow until she complied with the court’s Order to file joint returns.

Holding:  The trial court has the discretionary authority to direct parties in a matrimonial proceeding to file joint tax returns.  Whether to enter such an Order will depend upon the specific facts in each case.  The court did not abuse its discretion by directing the parties to file joint tax returns where there was significant financial benefit in doing so; there was no evidence that the husband had previously filed fraudulent returns; husband had the only income that would be reported; and the wife expressed no reason why she should not file jointly.

MARCINKIEWICZ V. MARRERO, 376 N.J. Super. 488 (App. Div. 2005)  Before Judges Kestin, Lefelt and Falcone.  Opinion delivered by Kestin, J.A.D.

Issue:  Whether or not a homeowner and parent of an emancipated child, who, “with careless indifference and reckless disregard” for the consequences, permits excessive drinking of alcohol on his premises, is liable for the damages caused to third parties and to the drinker himself and/or those who assert derivative claims.  The mother’s cause of action against the father sought damages for the death of her son caused by cirrhosis of the liver stemming from years-long consumption of alcohol.

Holding:  In this case of first impression, the court held that the mother did not have a cause of action against the father for the death of their son, given the fact that she too was aware that the child had a propensity to abuse alcohol and did nothing.  Divorced parents are “equally charged with their children’s care, nurture, education and welfare.”  Mother’s acquiescence that the child live with his father was not tantamount to a transfer of sole parental responsibility.

PENSION

FILES V. EXXONMOBIL PENSION PLAN, ET AL., 428 F.3d 478 (3^rd Cir. 2005)   Before Judges Sloviter, Fischer and Pollack.  Opinion delivered by Fischer, Circuit Judge.        

Issue:  Whether the District Court erred by finding that neither the PSA entered by the Superior Court of New Jersey entered prior to the participant’s husband’s death or an Order nunc pro tunc, entered by the same court subsequent to the Participant’s death, constituted a Qualified Domestic Relations Order resulting in the ex-wife losing her interest in her ex-husband’s pension and savings plan.

Holding:  The District Court did err.  After a thorough review of the relevant language in ERISA, the court found that there is no requirement that a QDRO be entered prior to the time benefits are payable or that an Alternate Payee does not have an interest until the QDRO is entered.  The PSA and the posthumous Order merely sought to enforce the Alternate Payee’s pre-existing interest in her now deceased ex-husband’s pension plans.

MOORE V. MOORE, 376 N.J. Super. 246 (App. Div. 2005)   Before Judges Lefelt, Fuentes and Falcone.  Opinion delivered by Lefelt, J.A.D.

Issue:  Whether the pensioner has an obligation to pay some portion of his pension (from pre-retirement earnings due to the fact that the pension cannot be paid to the ex-spouse until the pensioner retires) to his ex-spouse during his continued employment where he delayed his retirement beyond the age of 70, which was the age anticipated at the time the Property Settlement Agreement was entered into. 

Holding:  Here, where a specific retirement date was reasonably expected and relied upon in the negotiation of the overall Agreement, the pensioner can be required to pay from his present income the ex-spouse’s share of the pension benefit for each month that he chooses to work beyond the anticipated retirement date where the pension will not pay a benefit until the pensioner retires.  The matter was remanded for determination of how much should be paid to non-pensioned spouse.

SEALING A FILE

SMITH V. SMITH, 379 N.J. Super. 447 (Ch. Div. 2005)  Before Judge Sabatino, J.S.C.

Issue:  Whether R. 5:3-2(b) permits the Court to seal the record when the movants, third party witnesses, allege that they may suffer reputational harm as a result of allegations made by their son-in-law in a removal case against their daughter.

Holding:  Rule 5:3-2 requires that the “good cause” standard be applied to this inquiry.  In the matter at bar, the movants allege only that their reputation may be harmed as a result of the defendant’s allegations that removal should be denied because they and the plaintiff (their daughter) are alcoholics.  Without a showing that the embarrassing details would also have a detrimental impact upon the children involved in the litigation, mere embarrassment of the parties and other adult witnesses is insufficient to warrant sealing the matter from public view.

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