Monday, December 23, 2019
M.G. v. S.M. is a post-judgment divorce matter where the marital coverture share of a stock award vesting after the filing of the divorce complaint was sought by the Defendant. The parties married in 1998. Every August, from 2003 through 2010, the Plaintiff received a stock award from his employer which would vest in stages thereafter, beginning in 2011. On July 28, 2014, Plaintiff filed the divorce complaint. By that time, M.G. had been granted eight stock awards but only three had fully vested with the remainder to vest annually thereafter, each August. The company’s policy was reviewed and specifically stated that employees were granted stock to compensate them for long-term contributions to the company’s success and that the stock awards “represent the future right to receive shares…when a vesting requirement is satisfied.” According to the Plaintiff, the stock awards are a way for the employer to retain employees and give them reason to drive the stock higher through personal performance. Plaintiff did agree to share the vested stocks with the Defendant but maintained that any non-vested stock would vest only if he continued to perform at higher levels following the filing of the divorce complaint. The trial judge found that S.M. was entitled to one-half of all stocks awarded before or near the date of the complaint. In his opinion, the trial judge found Plaintiff to be credible and Defendant non-credible. In his written opinion, the judge went on to include that the stock awards of 2014 were based on the Plaintiff’s past performance, which was rendered during the marriage. The Plaintiff filed a motion for reconsideration with which he submitted documents from his employer spelling out the fact that post-award changes in employment status, hours, leaves, disability, and otherwise “shall” affect the employee’s rights in stock awards in support of his argument that the non-vested options did not belong, in part, to the Defendant. The motion was denied. Plaintiff appealed to the New Jersey Appellate Division. In Pascale v. Pascale, 140 N.J. 583 (1995) and Reinbold v. Reinbold, 311 N.J. Super. 460 (App. Div. 1998), the court held that options and other incentives earned during the marriage, even if distributed later, are subject to equitable distribution. The trial judge misapplied these cases to stock awards that would be earned after the marriage. In Slutsky v. Slutsky, 451 N.J. Super. 332, 344 (App. Div. 2017), the court held that “reversal is warranted when the trial court’s factual findings are ‘so manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice.” In Clark v. Clark, 429 N.J. Super. 61, 71 (App. Div. 2012), the court determined that a family judge has wide discretion in the distribution of assets which are subject to equitable distribution, however, in the within case, the trial judge’s findings were not supported by credible evidence and controlling legal principles pursuant to the terms of Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340, 354 (App. Div. 2009). In Pascale, the Supreme Court upheld its earlier decision from Landwehr v. Landwehr, 111 N.J. 491, 504 (1988), wherein the court held that when equitable distribution is sought for assets received post complaint, the touchstone becomes whether the asset was acquired as a result of efforts during the marriage, in which case the asset is subject to equitable distribution, or post-complaint in which case it belongs to the spouse who still must earn the asset. The N.J. Appellate Division panel determined that the trial judge was incorrect in his decision. The matter was reversed and remanded to the trial judge for findings pursuant to applicable case law and N.J.S.A. 2A:34-23.1. If you are considering divorce or have been served with divorce papers, you should consult with an experienced family law attorney in order to insure that your rights are protected. For more information about divorce, post-judgment motions, equitable distribution or other family law matters, visit DarlingFirm.com. To schedule a consultation, call us today at 973-584-6200. This blog is for informational purposes only and not intended to replace the advice of an attorney.
Wednesday, December 11, 2019
K.S. v D.J.S. is a post-judgment family matter. In November 2012, the parties divorced with a Marital Settlement Agreement (MSA). The Defendant acknowledged that after twenty-one years of marriage, the Plaintiff would need financial support and agreed to pay the amount of $3,400 monthly as support for the Plaintiff. The Defendant also agreed to pay one-third of any additional income over and above $139,000 to Plaintiff, to a maximum of $12,000 annually. The parties left the MSA open to modification by agreement of the parties or as permitted under the laws of the state of New Jersey. Plaintiff filed a motion to enforce litigant’s rights when the Defendant failed to comply with the terms of the MSA and the Plaintiff cross-moved for a reduction in alimony based upon “materially changed circumstances” which included the Plaintiff’s significantly changed earning capacity wherein she was making well over $100,000 and also more than Defendant made after his alimony was taken out of his income. The Defendant blamed the arrearages on the fact that his earning potential with his law firm had decreased and he was unable to meet his financial obligations without an alimony reduction. The court found nothing warranting a downward modification in alimony from the documents submitted by the Defendant. The court refused to grant the alimony modification and ordered the Defendant to pay all sums outstanding to Plaintiff. On appeal, the court found that the Defendant was a partner in the same law firm he had been with at the time of the divorce and his base salary had increased. The appellate division cited Lepis v. Lepis, 83 N.J. 139 (1980) and its progeny which dictate that alimony is based largely on the parties’ standard of living during the marriage and the fact that alimony modification may occur, under the factors of N.J.S.A. 2A:34-23, upon the demonstration of “changed circumstances.” The appellate division further cited to Crews v. Crews, 164 N.J. 11 (2000) regarding the changed circumstances significantly impairing the ability of the supporting spouse to maintain a reasonably comparable standard of living during the marriage and Stamberg v. Stamberg, 302 N.J. Super. 35 (App. Div. 1997) which sets forth the consideration of the significant improvement in the supported spouse’s economic situation. The appellate division also found that the court below made no findings as to the Plaintiff’s improved earning capacity and remanded for findings as to the Plaintiff’s independent financial circumstances. If you are considering filing a post-judgment motion, or your former spouse has done so, you should consult with an experienced family law attorney to learn your rights. For more information about divorce, alimony or post-judgment motions, visit DarlingFirm.com or, to schedule a consultation, call us now at 973-584-6200. This blog is for informational purposes only and not intended to replace the advice of an attorney.
Tuesday, November 26, 2019
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
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
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
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
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.