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Parenting Time Agreement Upheld On Appeal

n a recent NJ Appellate Division case, S.L.R. v. M.J.P., the Plaintiff-wife appealed from a 2013 Court Order that, in part, required her to honor the parenting time arrangement with her Defendant-husband regarding the parties' two youngest children and denying her request that the court interview the two children and award the Plaintiff sole legal custody over them. The Plaintiff and Defendant were married in 1989 and three children were born of their marriage. The parties decided to divorce in 2002 and their Final Judgment of Divorce incorporated a property settlement agreement (PSA). The terms of the PSA specified that the parties would share joint legal custody of the children with the Plaintiff acting as the parent of primary custody. Further, the agreement designated that the Defendant would have parenting time with the children on alternating weekends and one overnight during the week. In 2013, the parties' eldest daughter, Katherine, began living with the Defendant. In March of that year, the Plaintiff's attorney sent a letter to the Defendant stating that the children have decided that they will no longer attend the Defendant's parenting time at which time the attorney advised the Defendant to consider the letter as notice that his youngest two children, Kali and Emily, would not be going to his home in the foreseeable future. The Defendant filed a Motion seeking an Order naming him the parent of primary residence for Katherine and compelling the Plaintiff to honor their parenting time agreement with respect to the younger children. The Family Court granted the Defendant's request to be named Katherine's parent of primary residence, granted his request that the parenting time arrangement as it was designed in the parties' PSA be followed, and denied the Plaintiff's request that the youngest children be interviewed regarding the matter. The Plaintiff appealed from this decision. According to the Appellate Court, the Family Court failed to make any findings of fact to justify its conclusion, including whether a changed circumstance warranted a modification to the parenting time arrangement when it denied the Plaintiff's request to interview the children who were seventeen and thirteen years old. R. 1:7-4(a); Rolnick v. Rolnick, 290 N.J. Super. 35, 42 (App. Div. 1996). Further, the Family Court did not acknowledge the existence of conflicting certifications, ignored the evidence the parties presented on the issue of parenting time, failed to make findings of fact, and reached its decision by shifting the burden to the Defendant to resolve the matter. In addition, the Family Court also failed to engage any meaningful review of the terms of the PSA which should have included a best interests evaluation. N.J.S.A. 9:2-4(a); Palermo v. Palermo, 164 N.J. Super. 492 (App. Div. 1978). For all of these reasons, the Appellate Division remanded the case back to the Family Court to conduct a plenary hearing to decide the disputed issues of fact. Disputes over parenting time and child custody are among the most emotional and contested issues in family law. If you are involved in a child custody or parenting time dispute or if you are battling over provisions in your property settlement agreement it is of paramount importance that you seek out the advice of an experienced attorney before proceeding. For more information about parenting time, custody & visitation, post-judgment modification, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

No Post-Judgment Modification Of Alimony Without Changed Circumstances

In the recent Appellate Case, Youngblood v. Youngblood, appealed out of Sussex County, the Plaintiff appealed from a post-judgment modification Court Order that affected his alimony and child support obligations and required him to obtain health insurance for his son. The Appellate Court affirmed the decision of the Family Court because the Plaintiff was unable to prove changed circumstances. The parties in this case were married in 1985 and two sons were born of this marriage. One of these sons was still unemancipated at the time of this action. The Plaintiff filed for divorce in 2010 and a trial proceeded on the issues of alimony and child support. The Family Court judge rendered a written statement of the reasons for his decision and in his statement he reviewed all of the statutory factors applicable to alimony according to N.J.S.A. 2A:34-23(b). With specific regard to his income, the Plaintiff argued that his business peaked in the previous five years but suffered extreme losses in 2008 after he lost two of his most important customers. The judge averaged out his income over two of the median years to best reflect a more accurate income figure. In the final divorce judgment the judge ordered the Plaintiff to pay permanent alimony of $2,500 a month and $185 a week in child support. In 2012, the Plaintiff filed a Motion to reduce his alimony and child support obligations. The Defendant responded with a Cross-Motion requesting that the Plaintiff provide health insurance for their son. The judge denied the Plaintiff's Motion and granted the Defendant's relief. The Plaintiff then filed a Motion for reconsideration. The Appellate Court affirmed the decision of the Family Court holding that changed circumstances is the standard with which any modification of child support and alimony must be evaluated. Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012); Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). A change in circumstances can arise from various factors, including a reduction of income that occurs after the judgment of divorce. Lepis v. Lepis, 83 N.J. 139, 151 (1980). The Family Court must also consider whether the "changed circumstances have substantially impaired the [spouse's] ability to support himself or herself," however, "courts have consistently rejected requests for modification based upon circumstances which are only temporary. Lepis, 83 N.J. at 151. The Plaintiff's argument that he suffered a change in circumstances relies on the premise that the Family Court erred in computing his income, but the Plaintiff did not appeal from that judgment. According to the court, reconsideration is a "matter within the sound discretion of the Court, to be exercised in the interest of justice." D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). In sum, the Appellate Division found that the Plaintiff's argument that the Family Court judge erred in his decision were without merit because he did not provide any evidence before the motion judge that a change in circumstances since the rendering of the final divorce judgment "substantially impaired the ability to support himself." If you anticipate that you may want to petition the court for a post-judgment modification of your alimony or child support obligation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, alimony, divorce, child support, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Sole Custody After Child Endangerment Allegations?

In the recent NJ Appellate Division case, Hernandez v. Fermin, the Plaintiff sought sole custody of the parties' daughter alleging violations of his rights following accusations by the Defendant that he endangered their daughter's safety. The Plaintiff appealed from a 2012 Family Court Order that upheld a previous parenting time and custody order. In this case, the Plaintiff and Defendant started dating around 2008, and although the parties never married, they had a daughter together who was born in 2009. One month after, Sara, their daughter, was born they dissolved their relationship and the Defendant assumed custody of her. In 2010, the Defendant formally filed a Complaint for custody of Sara and the Family Court granted her temporary custody and a Parenting Time Order. The court also granted the Defendant temporary legal and residential custody and assigned a parenting time schedule for the Plaintiff. Subsequently, the parties went to mediation where they agreed to joint legal custody and signed a Consent Order granting the Defendant residential custody of their daughter and continuing the existing parenting time schedule. In 2012, the Plaintiff filed another Motion with the court arguing that the Defendant engaged in multiple parenting time violations and seeking sole legal custody over Sara. The Plaintiff's concerns were based upon the safety of Sara, who had recently suffered second or third degree burns while in the Defendant's custody. The Plaintiff also asserted that when Sara was younger she noticed that she had an unexplained cut on her leg while in the Defendant's care and that the Defendant had failed to care for a dental cavity that Sara had. The Family Court judge denied the Motion, holding that in order to determine the issue of sole custody of a child, he would need to hear the testimony from professionals like psychologists or other doctors regarding either parents' fitness. The judge held that in order to modify a custody arrangement "you've got to prove a substantial change of circumstances. The fact that the [child] got injured is not in or itself grounds to take a child away . . ." Therefore, the Family Court found that the Plaintiff's arguments were insufficient to warrant a change in custody. The Plaintiff then appealed from this decision. The NJ Appellate Court held that the resolution of a request to change custody requires the court to consider the custodial parent's fitness and the presence of a changed circumstance. Sheehan v. Sheehan, 51 N.J. Super. 276, 295 (App. Div. 1958); N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002). Following these principals, the Appellate Court found no error in the Family Court's determinations and held that the Plaintiff's assertions were without merit and affirmed the decision of the lower court. R. 2:11-3(e)(1)(E). Child custody cases are of the most emotional and difficult cases in all of family law. If you anticipate that you may want to petition the court for to establish custody or for a post-judgment modification of your current child custody arrangement it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about child custody, post-judgment modification, parenting time, divorce, child support, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Post-Judgment Modification Of Alimony Denied Upon Lack Of Changed Circumstances

In the recent Appellate Division case, Stratthaus v. Stratthaus, the Plaintiff, Gerard Stratthaus appealed from 2013 Family Court Orders which denied his request for a post-judgment modification of his alimony obligation and a reduction in the amount of life insurance he had to take out for the benefit of his ex-spouse. The Plaintiff argued that the court was wrong to deny him the relief that he sought, specifically, 1) a decrease in his alimony payments, 2) a reduction in his obligation to obtain a $150,000 life insurance policy, 3) a reversal of the requirement that he have to name his wife as both the beneficiary and owner of his life insurance policy, 4) and awarding his ex-wife, Defendant, Mary Stratthaus, half of the gross accounts receivable from his business. The Defendant did not file a response to the Plaintiff's Motion. The parties in this case obtained a divorce in 2008 following a thirty-five (35) year marriage. The Defendant gave birth to three children during their marriage, two of which were emancipated at the time of their divorce and one was still attending college. The parties incorporated a property settlement agreement (PSA) into the Final Judgment of Divorce which stipulated that the Plaintiff was to pay $3,500 a month in permanent alimony which was to be satisfied from the Plaintiff's half of the sale of his business. The parties agreed at that that in 2011 they would revisit the issue of alimony and could modify the amount if circumstances had changed. The PSA also obligated the Plaintiff to maintain a $150,000 life insurance policy for as long as he was required to pay child support and alimony. The Family Court judge who heard the parties' Motions found that the Defendant's actual wages were higher than when the Plaintiff filed his Cross-Motion seeking a reduction than when the obligation was set, therefore, she denied his application without making the Defendant file financial information again and concluded that the Plaintiff did not establish a change in circumstances warranting a modification of his obligation. The Appellate Division held that "The basic contractual nature of matrimonial agreements has long been recognized." Pacifico v. Pacifico, 190 N.J. 258, 265 (2007). "Matrimonial agreements between spouses relating to alimony . . . , which are fair and just, fall within the category of contracts enforceable in equity." Peterson v. Peterson, 85 N.J. 638, 642 (1981). The court further notes that when a party to a comprehensive and mutually negotiated PSA seeks to modify any support obligation, that party must meet the threshold of changed circumstances. J.B. v. W.B., 215 N.J. 305, 327 (2013). According to the Appellate Court, the language in the parties' PSA does not guarantee a modification, it only notes that the parties had the right to seek a modification from the court at a specific time. The court agreed with the Family Court that the Plaintiff had not established a legitimate reduction in his earnings to constitute a changed circumstance. In addition, with regard to the Plaintiff's obligation to take out a life insurance policy in the amount of $150,000, it appeared to the court that the Plaintiff already owned a policy for $75,000 that was provided by his employer and according to the court it did not seem reasonable to compel him to purchase an additional $75,000 policy if he current coverage was available through his employer at no cost. Therefore, as long as the Defendant remains named as the beneficiary for the policy, the Plaintiff does not have to purchase another policy. In all, the Appellate Division affirmed the decision of the Family Court except for the part of the order dealing with the insurance policy. If you anticipate that you may want to petition the court for a post-judgment modification of your alimony obligation or any other court mandated legal obligation it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, alimony, divorce, child support, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Court Denies Request To Modify Child Support For Applicant's Procedural Deficiencies

In the recent Appellate Division case, Townsend v. Townsend, the Plaintiff, Claude Townsend, appealed from the Family Court's denial of his Motion seeking: 1) reconsideration of a 2012 Court Order setting his child support arrears and denying his request for a modification of his child support obligation to his former spouse, Defendant Karla Townsend; an 2) a modification of his current child support obligation, but the Appellate Court denied his request because he failed to follow proper court procedure. The Appellate Court affirmed the decision of the Family Court because the Plaintiff failed to provide the court with the parts of the trial court record that were "essential to the proper consideration of the issues," according to Court Rule 2:6-1(a)(1)(I); Soc'y Hill Condo Ass'n, Inc. v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177-78 (App. Div. 2002). In the Court Order at issue in this case, the Plaintiff's child support arrears were established and the Family Court judge explained that the Plaintiff had sought and was denied reconsideration of this Order because he did not establish legal grounds for relief. Further, the judge noted that he was denying the Plaintiff's request for a modification of his child support obligation because the information that was submitted to the court was the same information that had been available to him when he had filed Motions in the past seeking the same or similar relief from the court, of which were denied. On appeal, the only documents that were submitted to the court by the Plaintiff were: 1) the parties' Final Divorce Judgment; 2) a Certification that the Plaintiff had previously submitted to the court on a prior unidentified cross-motion; 3) a letter from the his union from 2009; 4) the previous Court Order; 5) a letter from a private school from 2013; and 6) a history of his child support payments. In addition, the Plaintiff submitted an appendix with an unpublished legal opinion from 2008. Therefore, the Appellate Court affirmed the decision of the Family Court because the Plaintiff did not submit the proper paperwork or legal analysis for the court to consider his requests. Complex legal matters involving child support, divorce, equitable distribution, and other aspects involved with family law require that litigants submit the proper documents, in acceptable form, and in a timely manner to the court in order for a court to consider the relief he or she is seeking. Therefore, it is imperative that anyone looking to petition a court for relief consult with an experienced legal professional before doing so, to ensure that they are adhering to all of the court rules and procedures that will be required for any court to proceed on an action for relief. For more information about child support, alimony, post-judgment modification, divorce, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Post-Judgment Modification Of Alimony And Child Support After Ex-Wife Remarries

In Pietrontone v. Kiernan, the Defendant, Thomas Kiernan, filed a Motion for post-judgment modification of his alimony and child support payments because he believed that funds were improperly taken from his wages after his ex-wife re-married. The Defendant appealed the decision of three (3) Family Court Orders that were issued in 2012. New Jersey Court Rule 2:4-1 requires that appeals be taken up by the court within forty-five days of the entry of the challenged Court Order or decisions. The Defendant's appeals of the first two orders were dismissed by the Appellate Court because the appeals were untimely. Regarding the appeal of the third Order, issued on September 14, 2012, the court affirmed in part and remanded for an audit of his account. The September 14, 2012, Court Order was issued following Tina Pietrontone's Motion to the court requesting various forms of relief regarding issues following the parties' split. The Defendant submitted a Cross-Motion in response seeking 1) reimbursement for wage garnishments from his salary for alimony after the Plaintiff's re-marriage in 2012 and for child support; 2) documents reflecting the exact date of the Plaintiff's re-marriage; 3) a correction of the NJ Child Support Guidelines calculation of his child support obligation due to what he argues was a mistake on the Family Court judge's part. In the 2012 Order at issue, the Family Court judge found that the Defendant's Motion to compel the Plaintiff to provide proof of the date of her marriage as well as the issue of the disgorgement of alimony which the Defendant claims he paid after the Plaintiff's re-marriage were moot. Further, the judge denied the Defendant's request to modify his child support obligation because of the higher amount of money he paid for the children's health insurance because the judge found that the evidence submitted did not support his claim. The Appellate Court held that any evidential decisions that were rendered by a Family Court judge are subject to review for abuse of discretion. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). The Appellate Division did not find that the Family Court judge abused his discretion when he decided to fix the Plaintiff's re-marriage date based upon her Certification as opposed to ordering an official document reflecting the information as the Defendant requested. In addition, the Appellate Division found that the Family Court judge's reliance on paystub figures to set the Defendant's child support obligation was not an abuse of discretion. According to the Appellate Court, the heart of the Defendant's appeal is his argument that in lieu of the Court Orders terminating his alimony and child support obligations, he never received an explanation from the court or probation department with regard to the funds that were taken from his wages. Therefore, even though the Appellate Court denied the Defendant's substantive issues on appeal, it ordered that he be provided with the calculation of his credits and debits as they pertain to his account for alimony and child support. If you anticipate that you may want to petition the court for a modification or alteration of your child support or alimony award or have any questions regarding alimony it is imperative that you seek out the advice of an experienced attorney. For more information about child support, alimony, post-judgment modification, divorce, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

U.S. Military Dad Petitions For Retroactive Relief From Child Support Obligation

On appeal from the Union County Family Court in, Kent v. Kent, the Defendant, Joel Kent, appealed from a 2013 Court Order denying him relief from prior Orders that enforced his child support obligation over his protest that a portion of his obligation was allocated for work-related child care expenses during a time when the Plaintiff was unemployed. According to the Defendant, because he was in the military he was entitled to retroactive relief of his obligation and a recalculation of his child support figure. The Appellate Court affirmed the decision of the Family Court. The Defendant is an active member of the United States Navy and has been since 2001, before his marriage to the Plaintiff. The parties got married in 2003 and had one child during their marriage who was born in 2004. The parties then divorced in Virginia in 2006 and mutually agreed to a child support amount. In 2011, the Plaintiff filed a Motion to Enforce Litigant's Rights in New Jersey, where she was now living with the parties' child. Virginia relinquished jurisdiction to New Jersey in 2012 and a New Jersey Family Court judge delayed a hearing on the issue of enforcement because the Defendant was serving in the Navy and could not attend. The Motion was finally heard on the papers on January 4, 2013 after both parties submitted documents reflecting their arguments. At that time, the judge ordered the Defendant to bring current his child support arrears and pay it through the Union County Probation Department. The Defendant requested that the judge reconsider his Order, which he did. Specifically, the judge reconsidered the Defendant's application for additional credit toward his arrears and the return of $11,028.85, which represented a portion of child support allocated in Virginia for the Plaintiff's work-related child care costs that accumulated while the Plaintiff was unemployed. The Defendant became aware that the Plaintiff was unemployed for two years and yet she still collected $370.51 a month from the Defendant as a contribution to the total $670.00 monthly work-related child care expenses that was used to calculate the child support obligation. The judge granted the Defendant $211.90 credit for overpayment of arrearages but denied his application for the work-related child care amounts. The Defendant appealed. The Appellate Court determined that the Defendant had no basis for defending against the enforcement Motion beyond the relief that he was granted because the Defendant could have moved for a recalculation of his child support obligation due to changed circumstances at any time. The court also found that it did not need to determine whether the Defendant's rights under the Servicemembers' Relief Act (U.S.C.A. 521(g)(1)) and Bernhardt v. Alden Cafe, 374 N.J. Super. 271, 281-82 (2005) were violated. According to the court, "The spirit of the federal and New Jersey Acts certainly encompasses the public policy to give service members a fair opportunity to be heard in court in every proceeding," but here in deference to the Defendant's request as an active service member, the judge delayed the Motion for more than a year before rendering a decision on the papers and listened to the Defendant's argument and considered his Cross-Application. Newman v. Bd. of Review, 434 N.J. Super. 483, 489-90 (App. Div. 2014). Finally, the Defendant's Cross-Application to require the Plaintiff to refund the portion of child support that was attributable to work-related child care costs was properly denied because child support cannot be retroactively diminished. N.J.S.A. 2A:17-56.23a. Disputes regarding child support can be of the most important in family law because child support money is critical for the welfare of the children of divorced parents. If you are involved in a child support dispute it is imperative that you seek out the advice of an experienced attorney before proceeding. For more information on child support, post judgment modification, alimony, divorce, or other family law matters in New Jersey visit Darlingfirm.com. This blog is for informational purposes and is in no way intended to replace the advice of an attorney.

Party's Power of Attorney Cannot Appear In Divorce

In the recent New Jersey Superior Court case, Marsico v. Marsico, the Family Court denied a litigant's attempt to appear in his divorce proceedings through a designated power of attorney (POA) in a case of first impression for the court. The parties in this case are both in their eighties. They married in 1978 and remained wed for thirty-five (35) years. Together, the parties do not have any children, but the Defendant has an adult daughter from a previous marriage named Laura Mertz. In 2012, the Defendant executed a POA which appointed Ms. Mertz to be his "true and lawful attorney-in-fact" to govern over his affairs, and empowering her to deal with virtually all of his financial affairs. The provisions contained in the power of attorney (POA) also authorize Ms. Mertz to "institute, prosecute and defend any actions or proceedings brought in any court" on her father's behalf. Ms. Mertz's husband, Timothy Mertz, is listed in the POA as the Defendant's alternate attorney-in-fact. Three months after the execution of the Defendant's POA the Plaintiff filed a Complaint for Divorce against the Defendant seeking the equitable distribution of the parties' assets. Subsequently, the Defendant also retained the services of an attorney who answered the Plaintiff's Complaint with a Counterclaim on the Defendant's behalf under Rule 5:4-2. The Defendant did not personally sign the certification page in these documents. Instead, Ms. Mertz signed as the Defendant's power of attorney. When the Plaintiff's counsel received the Defendant's Answer and Counterclaim, they objected to the fact that Ms. Mertz signed on behalf of the Defendant because the Defendant had not be adjudicated to be incompetent. Attorneys for both parties stipulated to the court that their research did not reveal any prior case law in New Jersey addressing the issue of whether a litigant in a divorce proceeding can appoint a third person to appear on his or her behalf. According to the court, generally a competent person has the right to appoint another person to act on his or her behalf upon the execution of a written POA, as codified in N.J.S.A. 46:2B-8.1. Once a person is designated as another's attorney-in-fact he or she can conduct legal affairs such as retaining and communicating with a lawyer and authorizing an attorney to act on a principal's behalf. However, the statute does not expressly authorize a person the right to delegate the ability to render written certifications or oral testimony on the principal's behalf. In fact, the court found that a competent person cannot designate another person, either through a POA or any other means, to testify in his or her place without the consent of the other party or the court. In the present case, the Defendant had never been declared to be incompetent and a court cannot and should not presume that just because a litigant is elderly he is unable to appear in court, understand legal documents, or function independently. State v. R.W., 104 N.J. 14, 21-22 (1986). The court noted that no evidence was submitted in this case indicating that the Defendant was suffering from any illness or injury that would restrict him from participating in the divorce proceedings. Therefore, the court held that if the Defendant wished to proceed with his Answer and Counterclaim in the divorce he must sign and file his pleadings and certifications within the time frame provided by the rules of the court; Rules 5:4-2(c), 5:4-2(f), and 5:4-2(h). If you are involved in a contested divorce and would like information regarding your rights and obligations it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about contested divorce, equitable distribution, alimony, child support, or other family law matters in New Jersey visit the DarlingFirm.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.