Tuesday, November 26, 2019

Party Chose to Ask Forgiveness Rather Than Permission to Relocate

In A.J. v. R.J., custody of the parties’ children was transferred to defendant upon plaintiff’s failure to comply with a prior order concerning plaintiff’s relocation with the children. The parties married in 2008, and divorced in 2013. Two children were born of the marriage. The parties divorced with a negotiated marital settlement agreement, rather than a trial, with defendant receiving parenting time every other weekend and one weeknight overnight. Plaintiff was a tenured teacher in Elizabeth and Defendant resided in Union. Post-judgment, Plaintiff remarried and had another child. Due to Plaintiff’s family growing, they moved to Mount Holly. Plaintiff failed to obtain permission, from the Defendant or the court, to move the children after the Defendant notified her that he did not wish for the children to live so far away. Upon learning of the move, the Defendant filed an order to show cause to modify the judgment as to custody and to prevent the Plaintiff’s relocation. The trial judge granted the Defendant parenting time three weekends each month. Thereafter, a plenary hearing occurred and the trial judge ordered Plaintiff to relocate within fifteen miles of Union prior to the beginning of the upcoming school year. In making his decision regarding the Plaintiff’s ability to relocate with the children, the trial judge relied upon the factors set forth in Baures v. Lewis, 167 N.J. 91 (2001). Plaintiff appealed, arguing that the judge applied the wrong standard in his determination of her ability to relocate and that he changed the terms of the partied MSA by including a fifteen-mile rule where the parties had none. With regard to the imposition of the fifteen-mile limitation, pursuant to Ridley v. Dennison, 298 N.J. Super. 373, 381 (app. Div. 1997), Rule 5:3-7 and Rule 1:10-3, the court may craft remedies or measures to facilitate enforcement in the event an order is violated. As to the Judge’s use of the Baures factors, Baures no longer applies when a court is addressing relocation; rather, the court must consider N.J.S.A. 9:2-4. As the motion judge did not apply the correct measure in sanctioning the plaintiff, the appellate division reversed and remanded. If you are planning to relocate and believe that it may affect your parenting time arrangement, or you are seeking to prevent your children's other parent from relocating, it is critical that you seek an experienced family law attorney to represent you as misapplication of law can cause disastrous results for you and your children. For more information about relocating with children, divorce, alimony, child support or other family matters, visit DarlingFirm.com. To schedule a consultation with an experienced family law attorney now, call 973-584-6200. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Wednesday, November 20, 2019

Pre-Marital Assets Comingled Become Joint Property

Andrew Flockhart v. Karen Flockhart was a divorce ending in a twelve day trial relating to alimony, custody, child support and equitable distribution. The parties married in 1995, had three children born in 1998, 2000 and 2004 and separated in 2012. The Plaintiff had a successful landscaping business that predated the marriage and owned his own home as well. The Defendant was employed and also helped the Plaintiff with his landscaping business prior to the birth of their first child. Thereafter, the Plaintiff stopped working until 2014 when she began working part-time. During the marriage, the Plaintiff sold his home and the parties upgraded through multiple residences and, in 1998, the Plaintiff sold his business and the parties formed an entity including property purchased with the proceeds of Plaintiff’s landscaping business in which they owned equal interests. The parties branched into other equally held businesses and real estate holding companies. Plaintiff also formed a business with his mother, in which she was a majority shareholder and to which she contributed $200,000. In 2012, the Plaintiff filed for divorce and the parties’ holdings were evaluated with valuations in the millions, although they were offset by significant outstanding mortgage balances. Plaintiff was granted sole legal custody of the sons with the Plaintiff having physical custody of the older son. The parties’ daughter was emancipated. The parties’ combined net income during the marriage exceeded $187,200 which would trigger certain child support guideline limits. Plaintiff was ordered to pay$224 weekly child support for the younger son and defendant was ordered to pay $380 per week in child support for the older son – a net weekly payment to Plaintiff from Defendant of $156 in child support. The court imputed Plaintiff income of $300,000 annually and Defendant was imputed income of $27,040 annually. Plaintiff was ordered to pay $2,500 weekly in alimony until the parties’ older son was emancipated and $1950 weekly thereafter for a total alimony period of seventeen years and five months, a duration equal to that of the marriage. In spite of the $275,000 disparity in their annual incomes, the alimony calculation left both Plaintiff and Defendant in the very similar position of falling slightly short of their post-marital monthly budgets of over $10,000 each. The court determined that the parties’ assets should be divided equally as they were amassed through joint efforts. The parties appealed as to several issues including alimony and equitable distribution. The result of the appeal was remand of the matter for a review of child support and some adjustments with regard to equitable distribution. There were no credits to the Plaintiff for the contribution of his premarital business for the growth of the marital enterprise, nor for the contribution of his premarital residence to the purchase of the successive marital residences. If you are considering divorce, it is imperative that you obtain the advice of an experienced family law attorney in order to insure that your rights are protected. For more information about divorce, alimony, child support or other family law matters, visit DarlingFirm.com or call 973-584-6200 today if you wish to consult with an experienced divorce lawyer. This blog is for informational purposes only and not intended to replace the advice of counsel.

Friday, September 27, 2019

PDAs And Living Together Does Not Show Cohabitation

In Wood v. Wood, Alan Wood sought to terminate his alimony obligation to Wendy Wood, pursuant to the terms of their property settlement agreement (PSA), based on her cohabitation with another man. The parties were married from 1993 until 2016 and two daughters were born of the marriage. Under the terms of the PSA, the Defendant, Alan Wood, was to pay the Plaintiff alimony of $525 weekly for a term of 10 years following the date of the parties’ divorce but could be modified or terminated, pursuant to N.J.S.A. 2A:34-25, in the event that the wife cohabited. The Defendant hired a private investigator to confirm that the Plaintiff was cohabiting with her boyfriend, K.C. The private investigator claimed that the boyfriend was at the Plaintiff’s residence 14 out of 15 non-consecutive dates at varying times of the day. Additionally, K.C.’s name was associated with both the marital residence, foreclosed upon following the parties’ divorce, and the Plaintiff’s current residence. K.C. used the Plaintiff’s address on his driver’s license and voter registration. On the various visits, K.C. was observed using keys to the residence, keys to the locked mailbox and kissing the Plaintiff. The private investigator opined the K.C. and the Plaintiff were permanently cohabiting together in a romantic relationship. In addition to a cross-motion, Plaintiff responded that K.C. was a roommate necessitated by her multiple disabilities which prevented her from working and for which she had not yet received any disability benefits. Plaintiff indicated that she could not qualify for a rental on her own as she did not have sufficient income. Plaintiff testified that she and K.C. each paid for their own expenses including groceries, rent and utilities and that they had separate rooms and baths. To further her position, the Plaintiff testified that, when she had brain surgery, her family and friends cared for her, not K.C., and that she and K.C. did not socialize together. Plaintiff also offered certifications from family members, a copy of the condominium lease and a letter from her doctor corroborating her position. The Defendant offered the private investigator’s report of K.C. and Plaintiff kissing, K.C. accompanying Plaintiff to Robert Wood Johnson Hospital and the fact that the parties’ children have advised him of the longtime romantic relationship between K.C. and Plaintiff and the fact that, as long ago as his final walk through at the marital residence preceding foreclosure, the Defendant observed men’s clothing that did not belong to him comingled with the Plaintiff’s clothing. Defendant further contended that the Plaintiff and K.C. were in fact co-lessees per the evidence Plaintiff provided. Plaintiff’s response was to deny kissing K.C., admit he drove her to the hospital on a single occasion, deny the presence of men’s clothing with her own and to acknowledge that she did rent a room to K.C. in the marital residence, prior to foreclosure thereupon, in order to obtain money for utility payments. The judge below denied Defendant’s motion finding that, absent a prima facie showing of changed circumstances, the court could order further discovery under Lepis v. Lepis, 83 N.J. 139 (1980) and Crews v. Crews, 164 N.J. 11 (2000) but, absent a prima facie showing of changed circumstances, it was inappropriate for the court to order additional discovery of a parties’ financial status. The judge included that a finding of cohabitation required a finding that the cohabitation include the kind of mutual support and intimacy commonly associated with a marital relationship, pursuant to Konzelman v. Konzelman, 158 N.J. 185, (1999), and concluded that the proof offered by the Defendant was not enough to substantiate such a belief. Defendant appealed arguing that the Plaintiff’s living with someone else was enough that he should have opportunity to obtain her basic financial information and also argued that genuine issues of material fact existed. The N.J. Appellate Division affirmed based on the record below and also cited to Gayet v. Gayet, 92 N.J. 149 (1983) and Ozolins v. Ozolins, 308 N.J. Super. 243 (App. Div, 1998) collectively holding that a prima facie case of cohabitation in a relationship equivalent to that of a marriage is required in order to obtain mutual discovery and only after such prime facie showing is made will the dependent spouse be required to defend the continuing need for alimony. If you are seeking to stop paying alimony based on cohabitation or to defend your alimony when cohabitation has been falsely alleged, call The Darling Law Firm, LLC now at 973-584-6200. For more information about alimony, cohabitation, divorce or other family law matters, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of counsel.

Monday, September 23, 2019

Police Officer Loses Weapons After Wife Refuses to Testify Against Him

J.C.H was a police officer and this matter arose under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 – 35. His wife, Grace, called 911 and when police arrived she indicated that she was injured in an altercation with J.C.H. when she tried to stop him from leaving the house after he took pills, drank a bottle of alcohol and put a gun to his own head and threatening to kill himself. Grace fell from the car she had climbed atop in an effort to prevent J.C.H. from leaving and was injured in the fall. Grace did not seek a temporary restraining order (TRO). According to the wife, there were 9 prior domestic violence incidents and threats to her life by J.C.H. with the assault as the predicate act under the PDVA in the instant case. As a result of the 911 call, 34 firearms were seized from J.C.H.’s residence. Grace refused to testify about the simple assault, N.J.S.A. 2C:12-1(a)(1), and assault by auto, N.J.S.A. 2C:123-1(c)(1) and the charges were dismissed. J.C.H. was placed on administrative leave until he could undergo and pass a fitness-for-duty exam. The State sought forfeiture of J.C.H.’s firearms and firearms purchaser identification card, In the Matter of Weapons Seized Pursuant to the Prevention of Domestic Violence Act from J.C.H. The fitness for duty examination determined that J.C.H. was unfit for duty. At the forfeiture hearing, the examining doctor indicated that the fitness for duty examination also determined that J.C.H. should not have access to guns. In 2013, J.C.H. had also been placed on administrative duty after Grace posted on social media about his alcohol, anger and emotional issues. On that occasion, J.C.H. had been found fit for duty and marriage counseling was suggested. The State presented evidence that J.C.H. is a habitual drunkard and unfit to possess weapons. J.C.H. presented expert testimony that alcohol and other issues could be present but that he was sober and had maintained the sobriety for nine months leading up to the hearing. The judge determined that, as J.C.H. was receiving psychiatric counseling, had maintained sobriety for nine months prior to the trial and had never consumed alcohol on duty, he could not be found unfit for duty under N.J.S.A. 2C:58-3(c). Additionally, the judge determined that the State failed to prove that returning J.C.H.’s weapons would be a danger to the public. The State’s motion for forfeiture of J.C.H.’s firearms and firearms purchaser identification card was denied. The State appealed the forfeiture and the appellate division held that the seizure of weapons and firearms identification cards permitted under N.J.S.A. 2C:25-21(d) supports the intent of the drafters of the PDVA, to protect victims of domestic violence. However, the State does carry the burden of proof to demonstrate that the forfeiture is legally permissible. State v. Cordoma, 372 N.J. Super. 524, 533 (App. Div. 2004). In light of the long and history of J.C.H.’s drinking in excess, the Appellate Division determined that a seven month span of sobriety was not enough to erase years of habitual drunkenness as described under N.J.S.A. 2C:58-3(c). The appellate division determined that forfeiture of the weapons of J.C.H. was both appropriate and necessary in the within matter. If you are facing domestic violence charges, or are seeking a restraining order, call The Darling Law Firm, LLC now at 973-584-6200 to protect your rights. If you are interested in learning more about restraining orders or the Prevention of Domestic Violence Act, visit DarlingFirm.com for additional information. This blog is for informational purposes only and not intended to replace the advice of counsel.

Thursday, September 19, 2019

Interference With Religious Upbringing?

Michelle Dilisa and Gioacchino Dilisi divorced in 2014 with a matrimonial settlement agreement (MSA) in place. The MSA provided for the children to be raised in the Roman Catholic faith. The MSA also called for shared custody with the Plaintiff, Michelle, as parent of primary residence. At the time of the parties’ divorce, their daughters were ten and eleven years old with both having been baptized and received their first communion with the older daughter preparing for confirmation but the Defendant did bring the girls with him to a non-denominational church at that time as well. In January 2018, the Defendant sought the Plaintiff’s permission to take the girls on vacation but no response was forthcoming and Defendant was left to file a motion in that regard. Plaintiff cross-moved with twenty-one items for which she sought relief, including the preclusion of Defendant from taking the girls to a church other than a Roman Catholic Church, which the judge granted. The Defendant appealed on the grounds that his taking the children to a non-denominational church did not violate the parties’ agreement that the children would be raised in the Catholic faith. The Defendant’s argument was based on the lack of constitutionality of the motion judge’s decision. On appeal, the court determined that the custodial parent has the right to determine the religious upbringing of the children in the absence of a “contractual mandate” to the contrary pursuant to Feldman v. Feldman, 378 N.J. Super. 83, 91 (App. Div. 2005). However, the court also held that there is no preclusion for non-custodial parents taking their children to other religious services during their parenting time and such a bar would be violative of said parent’s rights. Feldman, 378 N.J. Super. at 96. A “judicial decision that compels or prohibits an act is ‘state action’ and such state action by a court cannot transgress constitutional protections.” Brown v. Szakal, 212 N.J. Super 136, 139 (Ch. Div. 1986). Therefore, if the Defendant’s choice to bring the children to a non-denominational church where he chooses to worship does not interfere with the children’s Roman Catholic upbringing, to prevent him from doing so would violate the Defendant’s religious freedom. The N.J. Appellate Division reversed. If you are considering divorce or have been served with divorce papers, call The Darling Law Firm, LLC at 973-584-6200 to insure your rights are protected. For more information about divorce, custody, alimony or other family law matters, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Monday, September 9, 2019

NJ Restraining Order Against VA Man Is Valid

L.D.L. sought a final restraining order, pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, against D.J.L. in New Jersey immediately upon her return from Virginia, where an incident occurred. The parties resided in Virginia since they were first married there. When the parties divorced, the Plaintiff moved to New Jersey. While Plaintiff was in Virginia thereafter, the defendant chased her car with his, bumping it repeatedly at a light then proceeded to exit his vehicle and bang on the Plaintiff’s car window and threatening to kill her. The light changed and Defendant continued pursuit for approximately 20-30 minutes. Later the Defendant left Plaintiff a voicemail including “Hey, had a great time this morning. Can’t wait to do it again. See you soon….” Later that night, the Plaintiff called Defendant at his request and, when Plaintiff wanted to terminate the call, the Defendant said “I’ll see you soon.” Based on the car chase, the phone contact, and claims of Defendant’s past abuse and PTSD, Plaintiff sought a final restraining order. On the hearing date, both parties appeared without counsel and were advised of their right to an adjournment to seek counsel. Each agreed to proceed and to do so without counsel. This constituted the Defendant’s submission to personal jurisdiction in New Jersey. Additionally, testimony showed that Defendant had called Plaintiff in New Jersey by voicemail and telephone, conferring jurisdiction by establishing the minimum contacts required to establish personal jurisdiction. The court found that the Plaintiff had proven that the Defendant had made a terroristic threat, in violation of N.J.S.A. 2C:12-2, and did harass the Plaintiff in violation of N.J.S.A. 2C:33-4. Finally, the court found that the Plaintiff did need the protection of a FRO. The Defendant appealed, challenging that the New Jersey court did not have jurisdiction over him but without challenge to the factual basis. The N.J. Appellate Division upheld the decision of the court below as to jurisdiction and affirmed. If you are in need of a final restraining order, or in need of defense against a FRO, contact The Darling Law Firm, LLC at 973-584-6200. For more information about restraining orders, domestic violence or other family law matters, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Thursday, September 5, 2019

Child Support Modification Was Intended to Benefit Defendant

Ianniello v. Pizzo involved a motion to modify child support following a high-net worth divorce. Pizzo, remarried with another child from the second marriage, sought to increase Ianniello’s monthly child support payment to her from $10,000 to $75,000 per month when Plaintiff’s income increased. Pizzo and Ianniello were married in 2000. Two sons were born of the marriage in 2004 and 2008. In April 2011, the parties divorced with a marital settlement agreement providing for a $5.5 million equitable distribution to Pizzo from Ianniello’s stock options, $10,000 per month for six years in limited durational alimony and an additional $10,000 per month in child support. Defendant is a homemaker with no employment outside of the home. Plaintiff, also remarried, is an executive in a large corporation wherein his annual income fluctuates between $14 and $31 million annually plus benefits. Plaintiff argued that the $10,000 in monthly child support more than provided for the needs of the children and that the Defendant’s request was made just as her alimony was about to end in an effort to improve her own lifestyle, not that of the children as the expenses of a 10 and 13 year old did not amount to $900,000 annually. The court ordered Defendant to file a budget as per Walton v. Wisgil, 248 N.J. Super. 642 (App. Div. 1991). The court found Defendant’s budget to be more of a wish-list of extravagances which would mainly benefit the Defendant. Pursuant to the factors of N.J.S.A. 2A:34-23(a), the court noted that the child support guidelines called for $508 each week in child support which was stepped up substantially already to account for the parties’ incomes and the children want for nothing. Pursuant to the child support guidelines, if the combined net income of the parents is greater than $187,200 per annum, the court shall supplement child support with a discretionary amount based on the actual family income and the factors of N.J.S.A. 2A:34-23. The children vacation four times annually with their families, attend sports camps, enjoy country club memberships and live in luxurious residences. Additionally, the Plaintiff agreed to pay for the children's private school costs, college expenses and extracurricular activities. The court denied the Defendant’s request to modify child support and the N.J. Appellate Division affirmed. For more information on high net worth divorce, alimony, child support, or other family law matters, visit DarlingFirm.com or call 973-584-6200 to schedule a consultation and protect your rights. This blog is for informational purposes only and not intended to replace the advice of counsel.