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.

Tuesday, August 27, 2019

No Reasonable Fear Means No FRO

K.M. v. M.D. involved a Final Restraining Order (“FRO”) sought by the Plaintiff after the Defendant, Plaintiff’s estranged Wife placed a GPS tracking device on his vehicle and showed up at his residence several times without his knowledge. The matter was heard in the Superior Curt of New Jersey, Essex County. After testimony was presented, the trial judge determined that the placing of a GPS device on the Plaintiff’s vehicle did constitute the predicate criminal act of stalking N.J.S.A. 2C:12-10. Under the Prevention of Domestic Violence Ace (“PVDA”), N.J.S.A. 2C:25-19(a), in order to establish a claim under the act, the alleged actor must have committed one of certain enumerated acts, stalking being one of said qualifying acts. Additionally, in order to give rise to a final restraining order, the Plaintiff must demonstrate an actual fear and that the order is necessary to prevent harm to the Plaintiff at the hands of the Defendant. Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006). The parties had a 10 year marriage, during which one child was born and which ended in a contentious divorce. The Defendant admitted placing the GPS device on the husband’s vehicle but indicated that it was only for the purpose of knowing her daughter’s whereabouts during parenting time with the Plaintiff. However, Plaintiff recounted multiple specific incidents in which the Wife would send photos of his car in specific locations minutes after he left the locations, would call others asking what the Plaintiff and child had been doing there, send text messages admonishing him regarding his whereabouts and the like. Plaintiff indicated that the messages were alarming and he went to his wireless provider and phone manufacturer to determine whether there was something in his phone that was enabling the Defendant to track him. Plaintiff testified that the Wife’s behavior was impacting his life, relationship with his children and his sleep and he also testified to prior acts of physical violence by the Defendant. The Defendant indicated that a hurricane force wind cause the Plaintiff’s truck door to slam on his foot and that she had no involvement in the incident. Defendant further indicated that the Plaintiff had previously driven his vehicle, with their daughter as a passenger, after he had consumed alcoholic beverages. The trial judge held that significant evidence was missing including any of the alleged alarming texts from the Defendant to Plaintiff and any medical testimony indicating his sleep was impacted by the Defendant’s behavior. After hearing testimony from both parties, the trial judge determined that although the Defendant had clearly been stalking the Plaintiff, there was no history of domestic violence between the parties and a final restraining order was not needed for the Plaintiff’s safety. The trial judge dismissed the Plaintiff’s request for a final restraining order and the underlying temporary restraining order (“TRO”) was dissolved. The Plaintiff appealed and the Appellate Division affirmed the decision of the court below. If you are facing or seeking a final restraining order, call The Darling Law Firm, LLC at 973-584-6200 to obtain the results you seek. For more information about restraining orders, divorce 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, August 14, 2019

Child’s Need For Safety Trumps Parental Rights

Parents living in a hotel room with their children were charged with abuse and neglect for allowing the father, a Megan’s Law offender, unsupervised contact with the children, failure to immunize the children and failing to provide appropriate sleeping arrangements for the children. In New Jersey Div. of Child Prot. And Permanency v. J.B., the division learned that the mother, J.B., left the children alone with the father, C.R., who was prohibited from staying in a location where a minor was present without approval and subject to community supervision for life for Megan’s Law offenses involving the father’s 7 year old child and the mother’s older children from a prior relationship. The division filed for custody, care and supervision of the children under N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12. The referrant advised the division that the mother had recently given birth to a son after she had carried with no prenatal care and that the parents did not want to leave the infant at the hospital for a 48 hour monitoring period after birth, which the doctors believed prudent in light of the fact that the mother had no prenatal care. Also included in the complaint was the fact that the children did not have adequate sleeping accommodations and seeking to provide immunizations to the children. The daughter was 2 years and 9 months old and had been sharing a bed with the parents. The Defendants ultimately stipulated to abuse and neglect after the Superior Court judge granted the division custody but the parents denied the division approval to immunize the children. Once the parents stipulated to abuse, the division moved again to immunize the children over the parents’ objections on religious grounds and the trial court found in favor of the division over the parents. The parents appealed the decision of the Superior Court judge to permit the division to immunize the children in spite of the Defendants’ objections on religious grounds. Although the parents objections to immunization fit squarely into one of two permissible objections, religious or medical, the N.J. Appellate Division cited In re Guardianship of J.C., 129 N.J. 1, 9-10 (1992), acknowledging a parent’s constitutionally protected rights to raise their children, even if those children are in foster care. The N.J. Appellate Division then cited In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999) in holding that the parents rights are superseded by the children’s safety and that the court has the ultimate authority to protect children in the event that they are in danger. The decision below was affirmed. For more information about parenting time, custody or other matters pertaining to parental rights visit DarlingFirm.com or call 973-584-6200 now to schedule a consultation. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Tuesday, May 7, 2019

Emancipation Abides The Jurisdiction At The Time Of Application

Lawson Scott Glassergreen sought to have his oldest child emancipated. Although Amy Glasser and Glassergreen were married in New Jersey, they divorced in Colorado. Plaintiff, Glasser, resides in New Jersey and the Defendant resides in Kentucky. Their oldest child attends an out-of-state Ivy League university and the youngest attends vocational school in Arizona and both reside with the Plaintiff when they are not in school. Defendant moved, in the New Jersey Superior Court, to have the parties’ oldest child emancipated. The parties Colorado Order which established the Defendant’s support obligations was registered in New Jersey. The Defendant argued that Colorado law requires emancipation at the age of 19 but the Superior Court of New Jersey obtained modification and enforcement jurisdiction over the matter in 2007 and, therefore, the age of emancipation is dictated by the laws of New Jersey. The Appellate Division affirmed the denial of the Defendant’s Motion. If you are seeking the emancipation of a child, or trying to prevent the premature emancipation of a child, you should seek an experienced family law attorney to assist you in your matter. The laws are subject to change and there are many nuances easily overlooked when researching the matter. For more information on emancipation or other family law matters, visit DarlingFirm.com or call 973-584-6200 now to learn your rights. This blog is for informational purposes only and not intended to replace the advice of an attorney.