Appointment Of Retired Judge As Parenting Coordinator In Custody Matter Is Appealed

In Cestone v. Cestone, the Plaintiff appealed from a series of Family Court Orders with regard to the agreement to appoint a retired New Jersey judge to serve as a parenting coordinator in a child custody dispute. The Appellate Court affirmed the decision of the lower court. The parties in this case were divorced in 2007 and at that time executed a custody agreement as part of their divorce. Three (3) children were born of the marriage and pursuant to the custody agreement that was filed with the divorce judgment, the parties were to share joint custody of the children, and the children would live primarily with the Plaintiff at her residence. As part of their agreement, the parties agreed to use the mediation services provided by a New Jersey law firm and a retired judge to resolve disputes regarding custody. In 2012, the Family Court denied the Plaintiff's Motion to disqualify the retired judge as the parent coordinator. Also in 2012, the Family Court denied the Defendant's application for sole custody of the parties' two younger children, to restrict the Plaintiff's contact with them, and to appoint various therapists for the children. The trial court held that the Plaintiff was in violation of litigant's rights for refusing to comply with the aforementioned Court Orders. On appeal the Plaintiff argued that the court erred in denying the Motion to recuse the parent coordinator because he had a conflict of interest as a mediator and retired judge in violation of Directive 5-08. According to the Appellate Division, Directive 5-08 prohibits retired judges from serving as attorneys in contested matters in New Jersey state courts, testifying as expert character witnesses, and accepting fee-generating court-initiated appointments except when both qualified through training and experience and providing the first two hours of mediation at no cost to the litigants. Further, communications and conduct during mediation are confidential, unless confidentiality is expressly waived by all parties or substantially outweighed by the need for disclosure. Lehr v. Afflitto, 382 N.J. Super. 376, 391 (App. Div. 2006); N.J.C.R. 1:40-4; N.J.S.A. 2A:23C-8. According to the Appellate Court, nowhere in her legal argument did the Plaintiff provide support for her position that the retired judge was conflicted or in violation of Directive 5-08. Although a parenting coordinator does some mediation techniques, it serves to facilitate day-to-day parenting issues that very commonly arise within the context of life. Further, the parties chose and agreed that this particular retired judge would be their parenting coordinator and there was never a suggestion that he was unqualified to do so therefore, the court did not find a basis to overturn the Family Court's decision. Child custody and parenting time 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 a 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, parenting time, child support, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Happy New Year!

Happy New Year from all of us at The Darling Law Firm to all of you! Please remember to celebrate responsibly. HeatherDarlingLawyer.com

Mother Wins Custody Appeal After Husband Violates Order

In the recent Appellate Division case, Luyster v. Colucci, the Plaintiff, Jennifer Luyster, appealed from a 2013 Court Order denying her Motion to Enforce Litigant's Rights against the Defendant, James Colucci, to enforce a court ordered parenting time schedule. The Appellate Division reversed and remanded the decision of the lower court back for a hearing on the Motion. The parties in this case were married in 1997 and two (2) children were born of the marriage in 2000 and 2002 respectively. In 2003, the parties obtained a final divorce judgment which incorporated a Consent Order that defined custody and parenting time. The parties were to share joint custody of the children with the children living with the Plaintiff as the parent of primary residence. Further, the agreement specified that the Defendant was to have the children for two (2) weeks each summer. In 2013, the Plaintiff filed a Motion with the court requesting that it find that the Defendant was in violation of litigant's rights for interfering with the parenting time schedule because he retained the children for longer than his agreed-upon summer parenting time. The trial court issued an Order in September 2013 denying the Plaintiff's Motion as moot because the summer was over and therefore the issue of summer parenting time was no longer resolvable. The Plaintiff appealed from this decision arguing that the court erred by not making a determination as to whether or not the Defendant's conduct violated litigant's rights and the parenting time schedule. The Appellate Division held that the trial court erred in deciding that the Motion to enforce litigant's rights was moot because "summer vacations [were] over." The Appellate Court found that in addition to a Motion to enforce litigant's rights under N.J. Court Rule 1:10-3, additional remedies are available for violations of custody and parenting time Orders, including compensatory time with the children, economic sanctions, court-ordered counseling, and modification of the custodial arrangement pursuant to N.J. Court Rule 5:3-7(a). Ultimately, the fact that the summer was over when the trial court heard the Plaintiff's Motion did not prevent the court from addressing and remedying any violation that may have occured. Pasqua v. Council, 186 N.J. 127, 133 (2006); P.T. v. M.S., 325 N.J. Super. 193, 208 (App. Div. 1999). The Appellate Division agreed with the Plaintiff's argument on appeal and reversed and remanded the decision of the Family Court for a hearing on the Plaintiff's Motion to enforce litigant's rights. Child custody and parenting time 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 a 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, parenting time, child support, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

No Extension Of Limited Duration Alimony

In the recent Appellate Division case from Morris County, Buscher v. Tully, a post-judgment matrimonial matter, the Defendant Steven Tully appealed from the Family Court's Order granting the Plaintiff, Ann Buscher's Motion to extend the period of her limited duration alimony. The parties in this case were divorced in 2007 after eighteen (18) years of marriage. The parties' final divorce judgment incorporated a property settlement agreement (PSA). There were three (3) children born of the marriage one of which was almost seventeen, other eleven, and the final emancipated at the time of the divorce. Pursuant to the PSA, the Defendant agreed to pay limited duration alimony to begin after the parties' sold their marital residence and to end in December of 2016. The parties also agreed to live together in the house after their divorce and until the home was sold. While they lived together after their divorce, the Defendant agreed to place almost all of his income in a joint account to assist with living expenses. The record indicates that the parties did not list the marital residence for sale in 2007 and the Plaintiff remained in the home until 2011, when she left with the parties' youngest child. The Defendant remained in the home with the other unemancipated child until 2012. While the Plaintiff lived in the home she worked part-time, completed her undergraduate education and eventually obtained a Master's degree. In 2013, post-judgment Motions were heard in which the Plaintiff requested that because the parties did not sell the home until 2012 she wanted her alimony end date to be extended. The Defendant argued that the court should enforce the plain language of the PSA which provided that alimony would not commence until the house was sold because when the parties entered into the PSA they did not know when the house would be sold and the agreement made sure that the Defendant would not have to pay both alimony and the carrying costs of the home at the same time. The Family Court granted the Plaintiff's Motion to compel payment of alimony though 2020 concluding that the parties intended that the Plaintiff would receive nine (9) years of alimony. The Defendant appealed arguing that the court erred in awarding nine (9) years of alimony ignoring the plain language of the PSA and that the extension of limited duration alimony violated N.J.S.A. 2A:34-23. In reversing and remanding the decision of the lower court the Appellate Court held that it discerned no basis in the PSA or extrinsic circumstances for the trial court's conclusion that the parties intended to award the Plaintiff nine (9) years of alimony. The parties agreed to remain in the home for an indefinite period of time after the divorce, until the house was sold. During that time, the Defendant agreed to bear the majority of the home expenses and that these expenditures were undoubtedly a form of spousal support or alimony. Schorr v. Schorr, 341 N.J. Super. 132, 139 (App. Div. 2001); Mendell v. Mendell, 162 N.J. Super. 469, 475-76 (App. Div. 1978). If you anticipate that you may want to petition the court for a post-judgment modification of your alimony obligation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, post-judgment modification, equitable distribution, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Happy Holidays

May the warmth and cheer of the holiday season be in your hearts. From all of us at The Darling Law Firm

Child Custody Decision Reversed For Unaccepted Science

In the recent Appellate Division case, M.A. v. A.I., the Defendant, A.I., appealed from a 2011 Court Order, awarding, M.A., the Plaintiff sole legal and residential custody of the parties' children so that the Plaintiff and the children could engage in a reunification program and denying reconsideration of a prior Order. In this case, the Defendant had not had authorized contact with his children in two years and the Appellate Division reversed and remanded for a quick determination regarding his parenting time because the Family Court relied upon scientific evidence that was not widely accepted in the social science community. The Plaintiff and Defendant were married in 1989. Their marriage bore two (2) children. In 2007, their marriage began to fall apart and both children became hostile toward their mother. After the Plaintiff filed for divorce the children refused to spend time with her. A therapist was enlisted to help the children deal with the situation, but to no avail. In 2009, the Plaintiff filed a Motion with the court to compel the parties and the children to continue to attend family therapy with a therapist, to establish a parenting schedule, and to appoint a guardian at litem (GAL) for the children. In 2011, the Family Court determined that it was within the best interests of the children if they were to have relationships with both parents. The court realized that the children's relationship with the Plaintiff was in deep distress and needed instant help. The court ordered that the Plaintiff and her children participate in a family intervention program and sole legal and physical custody of the children was awarded to the Plaintiff on that date and during which the Defendant was to not have un-authorized contact with the children. In its findings, the court held that the Defendant engaged in behavior that amounted to alienation of the Plaintiff. In his appeal, the Defendant argued that the Family Court erred in awarding sole custody of the children to the Plaintiff and prohibiting him from having contact with them. The Appellate Court declined to address whether the Family Court was mistaken to award sole custody of the children to the Plaintiff. The record reflected that the determinations of the Family Court were made so that the family could secure the services of the family intervention program and the court viewed the ruling as an interim measure. However, the Appellate Division found that the Family Court erred in basing its decision in part on eight Parental Alienation Syndrome criteria that the judge drew upon from literature and testimony. Under N.J.R.E. 702, if scientific evidence will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert to testify on the specific issue is required and the science must be generally accepted in the scientific community. Dehanes v. Rothman, 158 N.J. 90, 100 (1999). At the time of the hearing, Parental Alienation Syndrome was not recognized by the DSM-IV and is not yet accepted as a scientifically accepted theory. Therefore, the court reversed and remanded the decision of the Family Court back for a parenting time and custody hearing to be conducted immediately. Child custody and parenting time 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 a 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, parenting time, child support, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

No Modifaction Of Alimony Or Child Support For Party Failing To Appear In Divorce

In the recent Appellate Division case, Vaish v. Vaish, the Plaintiff, Rajiv Vaish, appealed from a 2012 Family Court Order that denied his Motion to vacate parts of his Judgment of Divorce as with regard to issues of equitable distribution, alimony and child support. The parties in this case were married 1986 and two (2) children were born of the marriage. The first child was born in 1990 and the second in 1994. In 2010, the Defendant, Sanmati Vaish, filed for divorce. For reasons that were unclear the court initially dismissed her Complaint and then later reinstated it, and before the reinstatement, the Plaintiff filed a Complaint for Divorce which the parties decided to proceed under. Before a scheduled Early Settlement Panel (ESP) at the court problems arose between the Plaintiff and his attorney which lead the attorney to withdraw from representation and the Plaintiff to fail to attend the ESP. The court then dismissed the Plaintiff's Complaint for failure to appear at the ESP meeting. In 2011, the Defendant filed a request for a Default Judgment to be entered against the Plaintiff followed by an application for equitable distribution of the parties' assets and property. Copies of these documents were provided to the Plaintiff's new attorneys at that time. In October of 2011, the Family Court held a hearing on the Defendant's application for equitable distribution and the Plaintiff failed to appear. Upon hearing the Defendant's testimony and considering her expert's report the court entered a Final Divorce Judgment and accepted the Defendant's uncontested submission for equitable distribution, child support, and alimony. In October of 2012, 364 days after this judgment was entered, the Plaintiff filed a Motion with the court to vacate parts of the divorce judgment with regard to child support and alimony. The judge denied the Plaintiff's Motion finding that he did not demonstrate good cause to vacate the judgment and he did not prove that there had been changed circumstances that would warrant a modification. The Plaintiff then appealed arguing that the judgment of divorce should be vacated under N.J. court Rule 4:50-1(a). According the Appellate Division, the portion of N.J. Court Rule 4:50-1(a) that was relevant to this appeal is subsection (a) which allows relief from a judgment due to "mistake, inadvertence, surprise, or excusable neglect." These categories include instances where a party "through no fault of its own, has [made] . . . a mistaken judgment on a material point at issue in the litigation. DEG, LLC v. Twp. of Fairfield, 198 N.J. 242 262 (2009). The Plaintiff's claim for relief based upon excusable neglect is based upon his argument that he did not know that a default hearing was scheduled in 2011. The Plaintiff's own attorney admitted that the Plaintiff had notice of the hearing. Therefore, the decision of the Family Court was affirmed. The equitable distribution of assets is of the most emotional and complex aspects of a divorce. If you are involved in a battle over the division of marital property, assets, or debts it is extremely important that you seek out the advice of an experienced attorney before moving forward. For more information about equitable distribution, post-judgment modification, contested divorce, spousal support, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Equitable Distribution Of Home Is Open For Argument After Ambiguous PSA

In the recent Appellate Division case, Paintsil v. Oppong-manu, a post-judgment matrimonial case, the Defendant ex-husband appealed from a 2012 Family Court Order which enforced a property settlement agreement (PSA) with regard to the Plaintiff ex-wife's right to receive $22,672.50 as a share of the equitable distribution of their former marital home because he argued the provisions of their PSA were ambiguous and open to multiple interpretations. The parties in this case were marred in 1991 and obtained a divorce in 2008. They had two (2) children born in 1993 and 1997 respectively. On the date that their judgment of divorce was issued they entered into a PSA which designated the Defendant as the parent of primary residence and upon which the Defendant waived child support in exchange for the Plaintiff's waiver of alimony. Further, a provision of the PSA specifically directed that both parties are entitled to 50% of the equity of the marital residence and the "Husband agrees to [buy out] Wife's portion of the residence" if this was not possible then the house was to be sold and the proceeds to be split evenly. Specifically, the parties agreed that the fair market value of the marital home was $435,000 with a principal mortgage of $339,655 and an equity line of credit of $80,000. Therefore, at the time the equity in the home totaled $15,345 and subsequently the Plaintiff was entitled to $7,672.50. From the $80,000 home equity line of credit the parties used $30,000 on improvements and the Plaintiff received $10,000 which resulted in $40,000 that remained. According to the PSA, the Plaintiff was entitled to 50% less the $10,000 advance that she received and should have received another $15,000 additionally from the home equity line of credit. In total, the Plaintiff then was entitled to $22,672.50 from the marital home. In 2012, the Plaintiff filed a Motion to enforce litigant's rights to force the Defendant to pay her the money she was owed under the PSA. The Defendant argued that he could not refinance the home and the value of the home had dropped significantly since the divorce and that the PSA contemplated such an event allowing for modifications to the payouts. The judge found the Defendant was in violation of litigant's rights and ordered him to pay the Plaintiff $22,672.50 plus interest within thirty (30) days of the Order without holding a plenary hearing to evaluate the language of the PSA. The Defendant appealed. According to the Appellate Court, "[I]t is a basic rule of contractual interpretation that a court must discern and implement the common intention of the parties.: Pacifico v. Pacifico, 190 N.J. 258, 266 (2007). If the meaning of a contract such as a PSA is in dispute the court role is to consider "what is written in the context of the circumstances at the time of drafting and to apply a rational meaning in keeping with the 'expressed general purpose'." Atl. N. Airlines, Inc. v. Schwimmer, 12 N.J. 293, 302 (1953). In applying these principals the Appellate Division found that the trial court mistakenly exercised its discretion by finding that the Plaintiff was entitled to the enforcement of the PSA because more than one reasonable interpretation of the provisions was presented to the court, requiring a further plenary hearing that did not occur. Therefore, the court reversed and remanded the case back for further findings. The equitable distribution of assets is of the most emotional and complex aspects of a divorce. If you are involved in a battle over the division of marital property, assets, or debts it is extremely important that you seek out the advice of an experienced attorney before moving forward. For more information about equitable distribution, post-judgment modification, contested divorce, spousal support, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Appeal Of Child Support On Due Process Grounds

In the recent Appellate Division case out of Essex County, Barreto v. Bryant, the Defendant, Juan Bryant, appealed from a 2013 Family Court Order that denied his pro se Motion to modify a prior Court Order setting child support for a child that was conceived by he and the Plaintiff, Evelyn Barreto. In 2012, the Defendant's child support obligation was set by the court at $153 a week with a $5,049 arrears. This Order further specified that the child support was calculated using the NJ Child Support Guidelines and New Jersey Court Rule 5:6A based upon the Defendant's imputed income of $57,750. In late 2012, the Defendant first sought to modify his obligation based upon changed financial circumstances. In 2013, a judge denied this requested because the Defendant failed to provide sufficient proof that he was experiencing a significant and permanent/long term change in circumstances. Soon thereafter, the Defendant filed another Motion for a downward modification of his child support obligation and this time provided his W-2 documents from 2012 which demonstrated that his annual pay was $33,470. At a hearing before a hearing officer held on the matter, the Plaintiff was present and the Defendant did not physically appear. The hearing officer denied the Defendant's Motion and noted that the Defendant only lived one hour away and that the court did not allow telephonic appearance for people who are only one hour away. An Order was issued on April 24, 2014 by a Family Court judge which indicated that the Defendant's Motion had indeed been denied for failing to show a change in circumstances and that the Defendant "lives within [ninety] minutes of the court house and he should appear for court proceedings." The Defendant filed a timely appeal arguing that he was never contacted by phone for the April 2013 hearing and therefore the merits of his Motion were never heard. The Appellate Division held that self-represented litigants are accorded the same procedural due process rights as those who are represented by counsel. Ridge at Back Brook, LLC v. Klenert, 437 N.J. Super. 90, 99 (App. Div. 2014). According to the Appellate Court, the Defendant was not offered a modicum of due process in the proceedings held in April of 2013. During prior proceedings the Defendant was specifically advised that he would have an opportunity to present his proofs to the court and he was denied that opportunity. The Appellate Division offered no conclusions as to the merits of the Defendant's Motion for a downward modification of his child support but reversed and remanded the case back to the Family Court to hold proceedings that would allow the Defendant to offer his proofs. If you anticipate that you may want to petition the court for a post-judgment modification of your 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, parenting time, child support, child relocation, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Court Denies Woman's Request To Reduce Alimony Obligation

In the recent Appellate Division case out of Essex County, Clark v. Pomponio, Bonnie Clark, Plaintiff, appealed from a 2013 post-judgment modification Court Order that denied her Cross Motion for a reduction in her alimony obligation owed to Defendant, Anthony Pomponio. The Appellate Division affirmed the decision of the lower court. The parties in this case were married in 1982 and only one child was born of the marriage. For the majority of the marriage the parties owned and operated North Jersey Diamond Wheel (NJDW). The Plaintiff filed for divorce in 2001 and the Defendant filed an Answer and Counterclaim in 2002. During the divorce proceedings the Defendant filed for Chapter 13 Bankruptcy. During his automatic bankruptcy stay under 11 U.S.C.A. 362(a) the trial court dismissed the Defendant's Answer for failure to provide discovery. After the stay was lifted the trial court entered a default judgment in 2004. In 2005, the court issued a judgment of divorce (JOD), which distributed the marital assets, set forth the Plaintiff's waiver of alimony, and awarded counsel fees to the Plaintiff. The Defendant appealed, arguing that his right to present an affirmative defense was denied because his Answer was improperly dismissed. In 2008, the Appellate Court reversed portions of the default judgment that pertained to equitable distribution, counsel fees, and alimony. After a trial was conducted on the issues, the Family Court judge rendered a decision in 2011 memorializing ownership of NJDW to the Plaintiff and required her to pay Defendant permanent alimony in the amount of $35,000 per year which was later reduced to $20,000 a year in 2012. In 2013, the Plaintiff submitted an application to reduce her alimony based upon a change in circumstances with regard to the finances of NJDW. The judge denied the Plaintiff's Motion for an alimony reduction because her Motion failed to attach all prior Case Information Statements (CIS) according to New Jersey Court Rule 5:5-4(a), as well as a lack of a prima facie showing of a change in circumstances. Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006). The Plaintiff appealed. The Appellate Division ruled that post-judgment Motions involving disputes concerning support obligations must be accompanied by both prior and current CISs according to N.J.C.R. 5:5-4(a). The rule is mandatory and not permissive. The CISs provide a way for the trial judge to get a complete picture of the finances of the movants in a modification case. Guyla v. Gulya, 251 N.J. Super. 250, 253 (App. Div. 1991) . Further, alimony awards may be modified according to N.J.S.A. 2A:34-23 and the "party seeking modification has the burden of demonstrating a change in circumstances warranting relief from the support or maintenance obligations." Innes v. Innes, 117, N.J. 496, 504 (1990). In this case, the Plaintiff was unable to show that the reduction in her income was not merely temporary and therefore her Motion was properly denied. If you anticipate that you may want to petition the court for a post-judgment modification of your alimony obligation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, post-judgment modification , equitable distribution, or other family law matters in New Jersey visit HeatherDarlinglawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Father Obtains Permission To Relocate With Children

In the recent Appellate Division case out of Morris County, Valedofsky v. Valedofsky, the Defendant, Jennifer Valedofsky, appealed from a post-judgment 2013 Court Order that allowed the Plaintiff, David Valedofsky, to relocate with their children from New Jersey to Rhode Island. The Appellate Court affirmed the decision of the Family Division. The parties in this case were married in 2000 and subsequently had two (2) children, born in 2004 and 2006 respectively. They obtained a divorce in Pennsylvania in 2010 and the Defendant was directed to be the custodial parent for the children. In 2011, the Plaintiff, who was living in New Jersey applied to the court to gain custody of his children. The Plaintiff was granted primary custody of the children. After this, the Defendant relocated to New Jersey to be closer to her family and her children. She then moved before the court in New Jersey for a 50/50 custody share. In 2012, the judge denied her Motion due to no change in circumstances. In 2013, the Plaintiff filed a Motion with the court to relocate with the children to Rhode Island because he received a promotion in his job that included a raise and expanded his opportunities to further advance within his company. Further, his entire extended family lived in Rhode Island. The Defendant opposed the Motion contesting that the Defendant's application for relocation was not made in good faith and cross moved for custody of the children. The Motion judge granted the Plaintiff's Motion to relocate after applying the factors found in Baures v. Lewis, 167 N.J. 91 (2001), and finding that the request was made in good faith that included benefits for the children. The Defendant appealed from this judgment. The Appellate Division held that when the physical custodial relationship among a set of parents is such that one parent serves as the primary caretaker and the other parent as secondary caretaker, then the custodial parent's request to relocate is governed by the two-part test found in the Baures case. Id. at 122. The test requires that removal be permitted where the preponderance of the evidence demonstrates the custodial parent has a good faith reason for the move and the move will not be inimical to the children's interests (the children will not suffer from the move). This standard ensures that the custodial parent has the right to seek happiness and fulfillment and guarantees regular communication and contact between the non-custodial parent and the child and incorporates a variation on a best interests analysis by requiring proof that a child will not suffer from the move. MacKinnon v. MacKinnon, 191 N.J. 240, 257 (2007). In this case, the judge that ruled on the Plaintiff's Motion analyzed all applicable factors and found that the Plaintiff made a prima facie case that the move was in good faith and would not be inimical to the children. The Defendant did not provide the court with any proof that the move was not requested in good faith or that it would be harmful to the children. Therefore, the court affirmed the decision of the Family Division. Disputes regarding child relocation can be of the most important in family law because of the substantial impact that decisions regarding these issues will have upon the lives of the parties and their children. If you are involved in a child relocation dispute it is imperative that you seek out the advice of an experienced attorney before proceeding. For more information on child relocation, custody and visitation, parenting time, divorce, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and is in no way intended to replace the advice of an attorney.

Motion For Reconsideration of Equitable Distribution Of Home Denied

In the recent Appellate Division case out of Morris County, Abdalla v. Assadourian, the Plaintiff, Fatima Abdalla, appealed from a 2013 Court Order that denied reconsideration of the part of the Order dealing with the equitable distribution of the parties' former marital residence. The previous Court Order directed that the proceeds received upon the sale of the home were to be divided equally amongst the parties, after the Defendant, Hovsep Assadourian, remitted $15,600 to Plaintiff in alimony arrears from his share of the proceeds. The Appellate Court affirmed the lower court's denial of the Plaintiff's request. The parties in this case were married in 1973 and subsequently obtained a divorce in 2003. The parties did not memorialize a property settlement agreement (PSA) and the Plaintiff's attorney retired and destroyed her file. The parties did not agree on the substance of their settlement so a hearing was held to discern the specifics. The Plaintiff testified that she did not understand her divorce proceedings because she is Arabic and did not have an interpreter at the time of her divorce. She claimed that she was unaware who was supposed to pay the mortgage, taxes, and insurance on the marital home but that she never made such payments since her divorce yet she continued to live in the home with the parties' two sons. The Defendant testified that he was under the impression that the house was to be sold immediately after the divorce and the proceeds divided equally. Both parties were in their 60's at the hearing and both were unemployed. At the conclusion of the hearing the judge ruled that the marital home was to be sold immediately. The Plaintiff refused to participate in the sale and in 2012 the judge appointed a listing agent and ordered that the parties sign the listing agreement within 10 days. Soon thereafter the judge appointed an attorney to act as a signatory to executed the listing agreement on behalf of the Plaintiff and assessed $3,000 in counsel fees against her. The Plaintiff's attorney filed a Motion for reconsideration in 2013. The Motion was filed more than five (5) months after the judge first ordered the home sold, which was wall beyond the non-enlargeable twenty (20) day time period as prescribed in the court roles. N.J.C.R. 4:49-2; N.J.C.R. 1:3-4(c). The trial judge denied the Motion for reconsideration because it was untimely. A Motion for reconsideration is addressed to the "sound discretion of the [c]ourt, to be exercised in the interests of justice." Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). Reconsideration should be utilized only for those cases which fall into that narrow category in which either 1) the court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the court either did not consider, or failed to appreciate the significance of probative, competent evidence. Id. The Appellate Court held that the Plaintiff sought reconsideration because she alleged she would be able to find new evidence to convince the judge to change the decision. The judge viewed her Motion as a stall tactic because the Plaintiff made clear by her behavior that her intention was to not cooperate in the sale of the home. The trial judge exercised sound discretion in denying the Plaintiff's Motion for reconsideration. The equitable distribution of assets is of the most emotional and complex aspects of a divorce. If you are involved in a battle over the division of marital property, assets, or debts it is extremely important that you seek out the advice of an experienced attorney before moving forward. For more information about equitable distribution, post-judgment modification, contested divorce, spousal support, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Alimony Reduction As Ex-Wife Cohabitates

In the recent Appellate Division case on appeal from Morris County, Clayton v. Clayton, the Plaintiff William Clayton appealed from a post-judgment Order arguing that the Defendant, Susan Clayton's cohabitant's financial support and her earned income represent a change in circumstances to modify his alimony obligation. This case returned to the Appellate Court after the court remanded it back to the trial court for additional evidence based upon the Plaintiff's application to terminate his alimony obligation upon a change in circumstances. On remand, a new judge took the testimony of the parties and lowered the monthly reduction of alimony from $874 a month to $47. The Plaintiff then filed another appeal making the same arguments that he previously made. The parties in this case were married in 1970 and had four (4) children. They divorce in 1997 and the Defendant moved in with her cohabitant, a man named Stuart Vreeland in 2002. Initially the court found that "Cohabitation alone is not justification to terminate spousal support," and the true test for alimony is the financial needs of the dependant spouse. Gayet v. Gayet, 92 N.J. 149 (1983). The question becomes whether or not the relationship had reduced the needs of the former spouse. Ozolins v. Ozolins, 308 N.J. Super. 243, 247 (App. Div. 1998). The remand judge found that the Defendant's job, which paid her $28,000 a year, did not represent a change of circumstances because she had been employed at the time of the divorce and that her income had remained approximately steady over the intervening years. The judge found that Mr. Vreeland contributed $47 less than his half of the shared expenses and the Plaintiff was in part supporting Vreeland with alimony and therefore the judge reduced the Plaintiff's alimony by $47. The Appellate Division held that the decision whether to modify or terminate alimony based upon a claim of changed circumstances "rests within a Family Part judge's sound discretion." Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). In this case, the remand judge held a hearing where each party offered his and her testimony on the issues. The court found that if the Defendant's shared expenses represented fixed expenses that the Defendant would incur regardless of whether or not Mr. Vreeland lived with her, then it can be said that his contribution is being used to partly support the Defendant. Using the Defendant's Case Information Statement as well as documents reflecting Mr. Vreeland's contribution the Appellate Court recalculated that the Plaintiff's reduction in monthly alimony should be $934 and not $47. Therefore, the case was affirmed in part, reversed in part, and remanded to enter a correct Order noting the change. If you anticipate that you may want to petition the court for a post-judgment modification of your alimony obligation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, divorce, child support, equitable distribution, or other family law matters in New Jersey visit HeatherDarlinglawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Mother Compelled To Secure Passport And Pay Counsel Fees

In the recent Appellate Division case out of Union County, Lamb v. Lamb, the Defendant, Jill Lamb appealed from a portion of a 2013 post-judgment Court Order dealing with her child custody, specifically ordering her to 1) comply with obtaining a passport for the parties' 14 year old daughter so that she could accompany her father, the Plaintiff, Lucas Lamb, to the Bahamas, and 2) awarding the Plaintiff's attorney fees of $3,385. The parties in this case were married in 1999. They obtained a divorce in 2002, pursuant to a final divorce judgment that awarded them joint custody of A.L., their daughter. The Defendant is the parent of primary residence and the Plaintiff is the parent of alternate residence. The issue that gave rise to this appeal arose out of a Disney cruise trip to the Bahamas that the Plaintiff planned to go on with the parties' daughter in 2013. The trip was to include the Plaintiff's new wife and their two children as well as A.L. In 2013, the Plaintiff e-mailed the trip details to the Defendant and explicitly asked the Defendant to confirm that she agreed to allow A.L. to attend the trip. The Defendant responded that she agreed as long as the trip did not cause any conflicts with A.L.'s school schedule. In these e-mails, the Plaintiff asked whether A.L.'s passport was current and told the Defendant that if the passport was expired he would take her during his parenting time to update it. The Plaintiff argued that the trip did not require A.L. to secure a passport and an altercation ensued. The Defendant argued that Disney suggested that passengers have a passport in case he or she got sick and needed immediate health care. In June of 2013, the Plaintiff filed an Order to Show Cause (OTSC) because the passport issue remained unresolved. The court found that there was not material facts in dispute and ordered the Defendant to cooperate in obtaining a passport for A.L. and ordered that the Defendant pay the Plaintiff's legal fees to bring the action totaling $3,385. The Defendant appealed from this decision. In her papers, the Defendant admitted that the passport issue was a moot point because she had agreed to allow the parties' daughter to go on the cruise and she executed the passport documents and the trip took place but argued that she did not act in bad faith with regard to the passport and the court erred in directing her to pay the Plaintiff's legal fees. The Appellate Division agreed that the passport issue was moot holding that an issue becomes moot when "when the original issue presented has been resolved, at least concerning the parties who initiated the litigation." De Vesa v. Dorsey, 134 N.J. 420, 428 (1993). With regard to the award of counsel fees, the Defendant argues that the motion judge failed to consider the required factors under N.J.C.R. 5:3-5(c) and only focused on the bad faith factor. According to the Appellate Court, a judge in a matrimonial action may award a party reasonable attorney's fees and to make that determination shall "consider . . . the good or bad faith of either party." N.J.S.A. 2A:34-23; N.J.C.R. 5:3-5(c). The court held that the motion judge's analysis of the factors could have been more detailed but the record indicated that the counsel fees were awarded to Plaintiff as a direct result of his efforts to compel the Defendant's compliance with an already agreed upon visitation and therefore the award was not unreasonable. Child custody and parenting time 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 a 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, parenting time, child support, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.