Monday, January 21, 2019

Conrtibuting to Children's Education

In Fanelli v. Hnatowski, Plaintiff Daria Fanelli filed a post-judgment motion seeking contribution from her former husband, Kenneth Hnatowski, for 50% of their two children’s private school tuition as was agreed upon in the parties’ property settlement agreement. Fanelli paid the tuition for both children for 9 years without contribution by the Defendant. The parties divorced in 2005 and Plaintiff was the primary caregiver to the children, ages 15 and 16 at the time of the post-judgment motion. At the time of their divorce, the parties entered into a property settlement agreement containing, among other things, that each would pay 50% of the children’s school costs. The children have attended private school since kindergarten. In 2016, the Plaintiff sought a contribution from the Defendant in the amount of 50% of the children’s tuition or a contribution in proportion to the parties’ respective incomes. The Union County Family Part judge hearing the matter ordered the Defendant to pay 50% of the children’s tuition and Defendant appealed on the grounds that the Plaintiff’s failure to seek contribution for 9 years barred her from doing so and that the term “school costs” does not mean tuition. The Defendant directed the court to Hoefers v. Jones, 288 N.J. Super. 590, 611-12 (Ch. Div. 1994), aff’d, 288 N.J. Super. 478 (App. Div. 1996) which sets forth 14 enumerated factors which the court must evaluate when ordering payment. The factors include the ability of parents to pay, the continuity of the children’s education, the contemplation that they would participate in the program for which contribution is sought, whether enrollment was reasonable, the benefit to the child of the program, whether the party enrolling the child had the right to do so, the child’s best interests and other factors. The NJ Appellate Division held that the term “school costs” was not ambiguous and that the Defendant was required to contribute to the children’s tuition under the parties’ agreement. Thereafter, the appellate division stressed the importance of upholding resolutions negotiated by the parties in citing to Quinn v. Quinn, 225 N.J. 34, 44 (2016), Konzelman v. Konzelman, 158 N.J. 185, 193-94 (1999). The trial court determined that Defendant’s failure to object to the children’s attendance in private school for 9 years operated as implied consent. On appeal, the court found the issue of consent to be of no consequence as the Plaintiff was not seeking contribution for the 9 prior years of private school tuition and the Defendant did not seek relief compelling the children to attend public school. If you need post-judgment relief to enforce litigant’s rights in a family law case, please visit DarlingFirm.com for more information or call us now at 973-584-6200 to schedule a consultation. This blog is for informational purposes only and not intended to replace the advice of counsel.

Friday, January 4, 2019

Final Restraining Order Trial Requires Opportunity to Cross-Examine

V.M. v. A.M., involved petition for a Final Restraining Order (FRO), under the Prevention of Domestic Violence act (N.J.S.A. 2C:25-17 to -35), based on an amended Temporary Restraining Order (TRO). Plaintiff initially claimed her husband committed the crimes of sexual assault, harassment and stalking against her but then dismissed all but the sexual assault claims prior to the parties' hearing. Both parties offered testimony but the court gave neither the opportunity to cross-examine the other. While the plaintiff claimed sexual assault, the defendant maintained that the parties had consensual sex multiple times over the course of the weekend in question in spite of ongoing marital difficulties. The trial judge's ruling found both parties credible but found that the plaintiff failed to prove her allegations by a preponderance of the evidence. Plaintiff appealed on the basis that the judge must find one party credible and the other not credible, rather than finding both credible, and that the judge did not give the parties the opportunity for cross-examination. The Appellate Division held that a court can find both credible but that the opportunity for cross-examination is required in order for the trial court to fully assess the credibility of the parties. The matter was reversed and remanded for a new hearing. In a domestic violence hearing, in order to obtain a FRO, the alleged victim must demonstrate the following factors as set forth in Silver v. Silver , 387 N.J. Super. 112 (2006) before a FRO may issue: 1. The parties' were involved in a domestic or dating relationship; 2. The defendant committed a predicate act of domestic violence under N.J.S.A. 2C:25-19; and 3. A restraining order is needed to protect the alleged victim from the defendant. For more information about domestic violence or restraining orders, visit DarlingFirm.com or, if you are a victim or accused of domestic violence, call now to schedule a consultation. This blog is for informational purposes only and not intended to replace the advice of counsel.

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.