Monday, November 5, 2018

A-4292 Protection for Car Dealers at your Expense

Assembly Bill A-4292 came to my attention today. Although it is not one of the topics I typically write about, I feel it is important for people to understand this harmful legislation. Introduced in June 2018, this bill requires auto dealerships to notify buyers of recalls on used motor vehicles for sale. That part is ok but what comes next is not palatable for consumers. The second main feature of this Bill is the limitation on attorneys’ fees in consumer fraud actions against car dealers. My first thought was that the person pointing this out to me was an attorney who makes a good living representing consumers against car dealerships under the current statute which allows for treble damages and counsel fees. My second thought was of the individuals I have represented in consumer fraud actions against car dealers. Car dealers have attorneys representing them and it is just part of the cost of doing business. Car manufacturers also have big corporate attorneys who come in to represent them. First they bring the local “big guns” and then they bring in the real “big guns” from Detroit if they lose the summary judgment motion to get out of the case. Without the car manufacturer pressuring the dealership to settle, the dealership will fight to the end to protect their reputation in their territory at great expense to the defrauded consumer. Whether it is on a contingency fee basis or through the recovery of attorneys’ fees to pay back their litigation expenses, the provision for attorneys’ fees to the consumer under the Consumer Fraud Act is often the only way a consumer can afford to fight a car dealership when a car is not sound or when they are defrauded by a dishonest dealer. I have represented individuals who would have been left with a non-working vehicle and no way to fight if they did not have a reasonable degree of certainty they would recover counsel fees at the end of the case. A-4292 still provides for compensatory damages and does permit treble damages in certain instances but it limits attorney fees to “up to $1,000 or up to one third of the amount of damages awarded to the person in interest, at the discretion of the court…” What this could mean to a consumer is that if they purchased a vehicle that suddenly became inoperable and the dealership refused to repair it based on some limited liability theory, they could sue the dealership, and sometimes the car manufacturer, and the court may award them a replacement vehicle to make them whole after litigation. After fighting summary judgment motions against the dealership and the manufacturer’s “big guns” and then going through negotiations or trial, they can find themselves with a legal bill exceeding the value of the car that was replaced. If the consumer knows that they will get only $1,000 or even one third of the amount of damages awarded, that means that, unless they received a replacement vehicle and additional punitive damages award from the court, they may have a bill for legal fees that exceeds the value of the vehicle. In summary, A-4292 serves to limit the opportunity for the consumer to sue a car dealership or manufacturer and offers a layer of protection for dealerships exercising bad practices. There are other certain presumptions created under A-4292 that are favorable to the dealerships and adverse to consumers. The Consumer Fraud Act was created to protect you from bad practices of car dealers and others. To limit its scope is to diminish the bargaining power of the consumer. For more information about legal issues, visit DarlingFirm.com.

Friday, November 2, 2018

Charitable Gift To Unintended Beneficiary

Estate planning contemplates the future based on the present. A current suit involving Rider University, the Westminster Choir College, NJ Attorney General Gurbir Grewal, Kaiwen Education and various plaintiffs demonstrates why estate planning must contemplate the currently unforeseeable. In 1935, Sophia Strong Taylor gifted 23 acres to Rider University. Westminster Choir College was founded in 1920 in Dayton, Ohio. It moved to Ithaca, New York in 1929 and to Princeton, NJ in 1935. In 1992, Westminster Choir College merged with Rider University. In 2017, Rider announced the severance of Westminster in a sale to Kaiwen Education, a subsidiary of the Chinese government for $40,000,000 with the limitation that Kaiwen must continue to operate Westminster Choir College at the Princeton location for at least 10 years. The suit has been brought by alumni, faculty and other supporters of Westminster. Their claim is that Sophia Strong Taylor donated the land with a specified intent that it support a college with a religious mission and that the Chinese government, which controls Kaiwen, imposes restrictions on religious practice. The suit seeks declaratory judgment that Taylor’s grant of the property to Westminster was conditioned upon Westminster’s continued operation as a training school for music ministers. Additionally, ownership of the Princeton campus was to transfer to the Princeton Theological Seminary in the event that Rider, or its successor, ceased using the property for the intended purpose. Howard McMorris, the last surviving board member of Westminster from the time of the Rider merger and a Plaintiff in the suit, claims that the Westminster board of trustees did not reasonably foresee Rider’s for profit sale to what the plaintiff’s call a sham charitable entity created by a for-profit entity with joint board membership between the non-profit and for-profit. Sophia Strong Taylor is no longer here to clarify her intent and the only way the court will be able to discern same is through the documents she had prepared and signed during her lifetime. Trusts and Wills may be interpreted by the court but not revised, rewritten or filled in with terms not present in the document. It is imperative that you think through the possibilities with any Trust. However, when giving to charity through a trust, at all times, include a reversionary clause in charitable giving that redirects your gift to another charity in the event that the charity of your initial choosing merges with another entity or otherwise changes their mission or purpose in a manner that is no longer congruent with your reason for benefitting them. With many, Irrevocable Trusts are created long before death but, as they are irrevocable, they may not be only be reformed as called for within the document itself at the time of drafting. Although charitable remainder trusts are excellent ways to save on taxes, the underlying charity if most often chosen for its specific benevolent purpose. For additional information regarding estate planning and trusts, please visit DarlingFirm.com or call 973-584-6200 to schedule a consultation and insure your estate planning needs are met. This blog is for informational purposes only and not intended to replace the advice of counsel.

Wednesday, September 26, 2018

Fleeing the Country to Avoid Alimony and Child Support

In Jonas v. Jonas, defendant Edwin Jonas, III appealed, for the eleventh time, the court’s decision in favor of Linda Jonas. Edwin Jonas, III was a prominent attorney who willfully refused to pay child support and alimony for decades, since his 1990 divorce, to the demise of his reputation and business. In his efforts to avoid payment, Edwin Jonas has removed his children from the country, lied to the court, fled jurisdiction and dissipated assets. The Defendant's appeal centers around the theme that he cannot receive a fair trial in Camden County Superior Court due to judicial prejudice against him. The Defendant's belief stems from the fact that he represented to the court that he had no intention of liquidating assets or leaving the country with the parties' children. Thereafter, Edwin Jonas, III left the country with the children, purchased a residence in the Cayman Islands and took steps to sell a convenience store he owned, causing title of several assets owned by the Defendant to be transferred into Plaintiff's name by Court Order. The idea was to create a constructive trust to ensure payment of alimony and child support. Rather than paying the sums due for support for a full twenty-eight years, the Defendant, is willing to file appeals and appear in court to try to seek an accounting from the Plaintiff. As a result of the Defendant's ongoing failure to acknowledge any wrongdoing and continue with his onslaught of appeals, the court denied the Defendant's motion. If your earnings, or those of your spouse, include commissions, bonus, expense accounts, profit sharing or other items which are irregular, it may make a substantial difference in what you pay or receive at the conclusion of your divorce. It is imperative that you consult an experienced divorce attorney to discuss your rights and obligations prior to filing for divorce. For more information about divorce, child support, alimony, property distribution or other family law matters visit DarlingFirm.com.

Thursday, June 7, 2018

Disability Claims in Alimony and Child Support Matters

Assembly Bill 1551 would serve to amend the New Jersey support statute, N.J.S. 2A:34-23 insofar as it would make a social security disability determination inadmissible in the calculation of a party’s alimony or child support receipt or obligation. The Bill, introduced by Morris County Assemblyman Michael Patrick Carroll, would affect actions in which earning capacity was in question due to a disability claim by a party in an action for child support or alimony. In making a determination of earning capacity, “a record or oral testimony on a determination of a federal social security disability benefit award or the receipt of past or on-going social security benefits shall be inadmissible for purposes of establishing the cause, or the extent or duration of the party’s disability in its impact on the earning capacity of that party.” The Bill would require genuine medical records and testimony of treating physicians in order to prove a party’s earnign capacity as it relates to need or ability to pay alimony or child support. Further, the Bill would provide for reasonable costs and attorney fees for the production of proofs by a party victorious in proving a disability limiting earning capacity and costs to a party successfully refuting the other party’s disability claim. The basis for the Bill is the lack of a meaningful adversarial process in the determination of whether an individual is afflicted with a disability in the confines of a social security administration hearing. The language in the bill would add a layer of proof serving to protect the interests of the other party in a family law matter whose interests were not represented in the social security disability matter. If you are considering divorce or post-judgment modification of alimony, you should consult an experienced divorce attorney to protect your rights. This blog is for informational purposes and not intended to replace the advice on an attorney. If you wish to consult with a divorce attorney, please visit DarlingFirm.com to learn more about our services and how to contact us.

Wednesday, February 7, 2018

Alimony May Continue After Obligee Spouse Remarries

In Alisa Forman v. Mark Forman, the parties agreed to 5 years of alimony which could not be terminated for any reason other than the death of the obligee. The parties were divorced in June 2012 and the Wife remarried in August 2013. The Husband discontinued alimony in September 2013 and the Wife filed to enforce the alimony obligation. The case was originally heard in the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County wherein the court directed the Husband to comply with the terms of the parties’ negotiated marital settlement agreement (MSA) and continue paying alimony. The Husband appealed and the New Jersey Appellate Division considered the fact that the parties’ went to great pains, in their MSA, to spell out very specific and limited reasons for termination of alimony but also considered the legal framework in existence at the time of the writing of the MSA. The Appellate Division looked to interpretive principles cited in Ravin, Sarasohn, Cook, Baumgarten, Fisch & Rosen, P.C. v. Lowenstein Sandler, P.C., 365 N.J. Super. 241 (App. Div. 2003) including Judge Learned Hand’s expression that “there is no surer way to misread a document than to read it literally...” and that parties to a contract formed in New Jersey are presumed to have selected New Jersey Law as their framework. The Appellate Division then looked to the laws of New Jersey pertaining to alimony, the parties use of very specific terms and the possible interpretations and determined that the matter should be remanded to the trial court for a plenary hearing to determine the parties’ intent at the time the MSA was prepared with regard to the automatic alimony termination statute N.J.S.A. 2A:34-25. This blog is for informational purposes and not intended to replace the advice of an attorney. If you wish to consult with one a divorce attorney, you may visit DarlingFirm.com to learn more about our services or how to contact us.

Friday, March 17, 2017

Do Child Support and Tuition Continue Through Grad School?

Child Support laws in New Jersey changed effective February 1, 2017. Included among the changes was the presumption of emancipation at the age of 23. In light of then upcoming changes in the child support laws, a New Jersey Superior Court judge struggled, in December, with whether a non-custodial father should be required to pay for his child’s graduate education. In J.C. v. A.C., Ocean County Superior Court Judge Lawrence Jones considered whether A.S., the father of A.A.C. and K.C. , should be required to pay for the graduate education of A.A.C. Although the N.J. Supreme Court, in Newburgh v. Arrigo, 88 N.J. 529 (1982), set forth the obligation for divorce parents to help pay for their child’s education, graduate school was not addressed in Newburgh. The parties’ settlement agreement, entered into at the time of their divorce, included that they would share equally the cost of their children’s college education but included no provision for graduate school. The Judge reasoned that, with her bachelor’s degree in accounting, A.C.C. could support herself while pursuing her master’s degree, as many others do. He determined that the intent of the legislature in revising the statute was to limit the obligations of noncustodial parents unless there was a showing of extraordinary circumstances. Although application could be made, the judge did not find that it must be granted. If you are seeking or disputing contributions toward your child’s education or other support, there are multiple factors which must be considered and it is within your best interests to consult with an experienced divorce attorney prior to taking action. For more information regarding child support, divorce, post-judgment modifications 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.

Wednesday, March 8, 2017

High Income Divorce With Extra Complications

In the high income divorce of Jennifer Maynard and Chad Michna, the parties disputed child support. The parties each had a prior marriage and in each marriage a child with special needs was born. One child was born of the marriage and the parties’ relationship ended approximately 4 months thereafter. Maynard filed a Divorce Complaint seeking sole residential custody and legal custody, child support and payment of the child’s expenses. During their divorce hearing, the parties reached an agreement with regard to custody and parenting time. The plaintiff was a medical sales representative with a base salary, commission, and bonus. She also had investment income from outside business affiliations, rental property and child support. The plaintiff included her prior son’s expenses, as well as mortgage and costs of her investment properties, as expenses on her Case Information Statement. She also included the costs of a nanny at is employed 12 hours each day, and weekends. During cross-examination, plaintiff provided more accurate versions of her expenses. Michna was a director of government accounts with a base salary, commissions and a company stock appreciation rights plan and passive interest income. The defendant showed approximately $2,500 per month in expenses related to his son from a prior marriage. Michna sought to have the time period for income calculations to extend back to 2009 when he earned substantially less and Maynard made substantially more. Additionally, as the parties’ maintained a long-distance relationship during most of their marriage, Michna indicated that Maynard’s lifestyle was attributable to her family’s wealth and he could neither afford nor match such a lifestyle. The trial judge’s written opinion included income calculations from 2010 through 2012 and included child support differing from the Guidelines amount. Michna appealed and Maynard cross-appealed in Maynard v. Michna. The Appellate Division first looked to Pascale v. Pascale, 140 N.J. 583 (1995) for the basic premise that child support is to ensure the child’s basic needs are met. Pursuant to N.J.S.A. 9:2-3 and Caplan v. Caplan, 182 N.J. 250 (2005), child support is paid by the non-residential parent to assist the residential parent in raising the child with the economic means he or she would have been raised had the family remained intact. Child support may not be waived by a parent as it is the right of the child. Pascale, 140 N.J. at 591. Under Jacoby v. Jacoby, 427 N.J. Super. 109 (App. Div. 2012) and N.J.C.R. 5:6A, the Guidelines are to be followed in establishing child support. Under Harte v. Hand, 438 N.J. Super. 545 (Ch. Div. 2014), if an award in line with the Guidelines would cause injustice, the trial judge could use discretion to modify the award. Reviewing the facts of the case through binding precedent, the N.J. Appellate Division remanded the matter for recalculation of the parties’ incomes and a clear statement on the record as to whether the Guidelines were utilized, why the child support award differed from the Guidelines including adjustments to account for the fact that Maynard included her child from another marriage in the expenses utilized to calculate child support for the parties’ child and the deduction of non-work related child care. If your earnings, or those of your spouse, include commissions, bonus, expense accounts, profit sharing or other items which are irregular, it may make a substantial difference in what you pay or receive at the conclusion of your divorce. It is imperative that you consult an experienced divorce attorney to discuss your rights and obligations prior to filing for divorce. For more information about divorce, child support, alimony, property distribution or other family law matters visit DarlingFirm.com.