Wednesday, February 25, 2015

Court Denies Wife's Appeal After Downward Modification Of Husband's Child Support

In Licciardi v. Licciardi, an Appellate Division case out of Morris County, the Plaintiff appealed a post-judgment Family Court Order that reduced the Defendant's child support payments, increased his responsibility to pay for their children's extracurricular expenses, and denied her Motion to compel the Defendant to produce documents. After being married for over ten (10) years and having two (2) children together the parties divorced. Rather than a trial on all issues, they entered into a property settlement agreement (PSA) weherin the Defendant agreed to pay child support in the amount of $3,300 a month based upon his gross income of $175,000. Further, the PSA acknowledged that the Defendant was paying child support in excess of the NJ Child Support Guidelines found in Rule 5:6A. The Defendant also agreed not to seek a reduction in his child support obligation for "three years regardless of any change in circumstances . . . . and the child support may be reviewed at the expiration of three years . . . and every two years thereafter until both children are emancipated." In 2010, the Defendant was granted a reduction in his child support obligation. In 2012, two and half years later, the Defendant once again filed for a reduction in his child support. The Plaintiff opposed the Motion seeking an upward adjustment in child support citing that her financial circumstances had taken a down turn and claiming the Defendant's financial information was deceitful. The court again reduced the Defendant's child support and increased his obligation to pay for the children's extracurricular activities. The court found that the parties had established substantial and permanent changed circumstances based upon the Defendant paying monthly child support for a third child that was born from a second wife that he had since divorced. The Plaintiff appealed the Order. According to the Appellate Division, courts are authorized by statute to "revise[] and alter[]" child support Orders "from time to time as circumstances may require." N.J.S.A. 2A:34-23. The party moving for the modification bears the burden of making a prima facie showing of changed circumstances." Miller v. Miller, 160 N.J. 408, 420, 734 A.2d 752 (1999). Changed circumstances "include an increase in the cost of living, an increase or decrease in the income of the supporting or supported spouse, cohabitation of the dependent spouse, illness or disability arising after the entry of the judgment, and changes in federal tax law." J.B. v. W.B., 215 N.J. 305, 327,73 A.3d 405 (2013). In this case, the Plaintiff argued that the Defendant was not entitled to a reduction in child support because his financial disclosures were incomplete and deceitful. The Appellate Court rejected this argument because the Plaintiff's claims were simply bare assertions that were not supported by any competent, documentary evidence. Therefore, the court affirmed the decision of the Family Court. 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 child support, post-judgment modification, alimony, divorce 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.

Monday, February 23, 2015

Great-Grandparent Maintains Custody Of Child Over Father's Objection

In J.F. v. R.M., a 2015 Appellate Division case, the Defendant appealed from a 2014 Family Court Order that denied his child custody application to obtain residential custody of his son from the child's great-grandparent. The Appellate Division affirmed the decision of the Family Court. The child at issue in this case was born in 2007 when his mother Sue was 15 years old and his father, the Defendant, was 17. The Defendant was not involved in his son's life until 2011. Following the child's birth, he and his mother lived with her grandmother, J.F. J.F., who raised her own five children also raised five of her grandchildren who were placed with her by DFYS. Sue, the child's mother, was placed in J.F.'s care when she was only 8 years old. J.F. became the child's primary caretaker. Eventually Sue left J.F.'s home and the child remained with J.F. for his entire life. In 2011, J.F. filed a complaint seeking custody of the child, which was granted. She also sought a paternity test to determine that the Defendant was the child's biological father and to establish child support. At that time the court granted the Defendant open and liberal parenting time with his son. In 2013, the Defendant filed for full custody of the child. J.F. opposed this Motion arguing that there was no basis for a change in custody. The judge denied the Defendant's request and specified that because there was no allegation of parental unfitness or gross misconduct with respect to the Defendant, J.F. has to demonstrate exceptional circumstances, like having a psychological-parent relationship with the child, in order to retain custody as a non-parent. The judge found that there was no difficulty in finding by a preponderance of the evidence that J.F. had established a parent-child bond with the child. The judge also entered an Order providing that J.F., the Defendant, and Sue were all to share joint legal custody over the child, but J.F. would continue to have residential custody of him. The Defendant appealed. In child custody disputes between two fit parents, "the best interest of the child standard controls because both parents are presumed to be equally entitled to custody . . . But, when the dispute is between a fit parent and a third party, only the fit parent is presumed to be entitled to custody." Watkins v. Nelson, 163 N.J. 235, 253 748 A.2d 558 (2000). However, "a third party can overcome that presumption by satisfying the standard required for termination of the rights of a non-consenting parent: unfitness, abandonment, gross misconduct, or 'exceptional circumstances'" Id. at 244-25. The resolution of a custody battle between a parent and a third party, like a grandparent, involves a two-step analysis. First, the application of the parental termination standard or a finding of exceptional circumstances must be established. Zack v. Fiebert, 235 N.J. Super. 424, 432, 563 A.2d 58 (App. Div. 1989). When the exceptional circumstances prong is satisfied, for instance by establishing that the third party has become a psychological parent, the standard for determining custody is the same as between two fit parents: the child's best interest." N.J.S.A. 9:2-4(c); Zack, supra, 235 N.J. Super. at 433. The Appellate Division agreed with the reasoning of the Family Court which determined that J.F. was the psychological parent of the child and then that it was within the child's best interest to remain in J.F.'s custodial care. V.C. v. M.J.B., 163 N.J. 200, 223, 748 A.2d 539 (2000). Child custody and grandparent's rights cases are among 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.

Friday, February 20, 2015

Post-Judgment Motion For College Tuition Is Denied

White v. White, is a 2015 post-judgment modification involving a Plaintiff who petitioned the court to compel her ex-husband, the Defendant, to reimburse her and their son for loans that the Plaintiff and the child used to pay for his college education. The Plaintiff appealed the decision of the Family Court which denied her initial Motion, filed in 2012, to compel the Defendant to reimburse her and her son for the aforementioned loans. After being married for six (6) years and having two (2) sons the parties agreed to divorce. The divorce was granted pursuant to a judgment of divorce that granted custody of the children to the Plaintiff, set forth the Defendant's child support obligation, and incorporated the parties' agreement concerning the equitable distribution of their property. The record reflected that the Defendant did not have contact with either of his children from 1998 through the time the initial Motion was filed in 2012. In 2008, the parties' youngest son entered college and graduated in 2011. In 2012, nine (9) months after the parties' child graduated college the Plaintiff filed a Motion seeking retroactive child support effective May 2009 through December 2011 and an Order directing the Defendant to pay for the non-emancipated child's college education as well as a loan that the Plaintiff has used for that purpose. The court denied the relief requested. The Appellate Court found that it was required by Gac v. Gac, 186 N.J. 535, 546 (2006) to consider whether the Defendant had been involved in the college selection process at all. Further, the court noted that the Defendant was disabled and wondered whether or not it was fair to retroactively place the burden on him to inquire as to whether or not his children were entitled to any veteran benefits - as he was a veteran - to assist in the payment of college expenses. Relying on Newburgh v. Arrigo, 88 N.J. 529, 535 (1982), Gac v. Gac, N.J.S.A. 2A:34-23(a) the Appellate Division ruled that waiting until the child graduated from college was fatal to the Plaintiff's application for retroactive contributions to the loan that she took out. Courts "should balance the statutory criteria of N.J.S.A. 2A:34-23(a) and the Newburgh factors, as well as any other relevant circumstances, to reach a fair and just decision whether, and if so, in what amount, a parent or parents must contribute to a child's educational expenses." Gac v. Gac, surpa, 186 N.J. at 543. Being that it could not be determined exactly when the Defendant first learned that his son was attending college and why the Defendant was estranged from his son (and therefore not involved in the college selection process) the court was not willing to reverse the decision of the lower court. The issue was whether a non-custodial parent can be held liable to a child for the amount of educational benefits that would have been available from a non-parental source had the parent timely notified the child or child's custodial parent. The Plaintiff cited to no authority to support the imposition of such liability and therefore the court was not prepared to impose such. If you anticipate that you may want to petition the court for a post-judgment modification of your divorce judgment it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification , equitable distribution, divorce, alimony, 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.

Thursday, February 19, 2015

Emancipation and Child Support Adjusted To Military Enlistment Date

Schottel v. Kutyba, is a New Jersey case coming out of Bergen County, involving the emancipation and termination of child support of the daughter of a divorce couple. Specifically, the Plaintiff appealed the case because the Family Court judge issued a Court Order that was effective on the date it was entered instead of on the date the Plaintiff's daughter joined the military, six (6) months prior which affected when her child support obligation was terminated with regard to the child. The Appellate Court found that because the Plaintiff's prima facie showing that her eighteen (18) year old daughter had in fact enlisted in the United States armed forces in 2013, there was a presumption of emancipation at that time which was not rebutted and therefore the Family Court was mistaken in failing to make the Court Order retroactive to the date the daughter enlisted. The laws in New Jersey regarding emancipation have been well established. Emancipation occurs at the point "the child has moved 'beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of he or her own.'" Filippone v. Lee, 304 N.J. Super. 301, 308 (App Div. 1997); Bishop v. Bishop, 287 N.J. Super. 539, 598 (Ch. Div. 1995). It is the act "by which a parent relinquishes the right to custody and is relieved of the duty to support a child." Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). Therefore, a court's decision to grant an emancipation date predating the filing date of an application for emancipation constitutes an exception to the statutory prohibition against retroactive modification of a child support obligation. J.S. v. L.S., 389, N.J. Super. 200, 207 (App. Div. 2006). Many children throughout New Jersey continue to be dependent on their parents for a time after attaining the age of eighteen (18), specifically to pursue higher education. Proof of majority satisfies a non-custodial parent's prima facie showing of emancipation which in turn shifts the burden to rebut the presumption of emancipation to the custodial parent. The Plaintiff in this case, made notation in her Motion papers that the courts have long recognized that emancipation can occur upon a child's induction into military service. Slep v. Slep, 43 N.J. Super. 538, 543 (Ch. Div. 1957). Since the parties' daughter had already attained the age of majority by the time she graduated from high school and then she immediately enlisted in the armed forces, the Plaintiff's proof of those facts constituted proof of her emancipation. Therefore, the decision of the Family Court was reversed and remanded for the issuance of a Court Order reflecting the child's emancipation date as of the date she enlisted in the military and the subsequent re-calculation of the Plaintiff's child support arrears to account for that. Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995). If you have questions regarding the legal standard for emancipation or how a child's emancipation affects a parent's child support obligation it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about emancipation, divorce, alimony, child 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.

Wednesday, February 18, 2015

Equitable Distribution By Property Settlement Agreement Not Modified By Court

Kurbel v. Kurbel, is a New Jersey Appellate Division case coming out of Sussex County, in which the Defendant appealed from 2013 Family Court Order that modified the parties' property settlement agreement (PSA) in a post-judgment action following their divorce regarding provisions that concerned his alimony and equitable distribution obligations. The Plaintiff filed for divorce from the Defendant in 2001 after 31 years of marriage and subsequently began to cohabitate with her boyfriend. The parties' divorce was finalized in a final divorce judgment in 2002 which incorporated a PSA. The PSA included a provision requiring the Defendant to pay to the Plaintiff "limited duration alimony" from 2002 until 2023 for the ten (10) months a year that the Defendant worked as a teacher. The payments began at $150 per month and were to increase by increments of $25 over twenty-one (21) years until the payments were $650 per month by 2023. In 2010, the Defendant filed a Motion seeking to terminate his alimony obligation based upon changed circumstances because he claimed he was forced to retire from his job due to a physical disability. The Defendant also argued that the Plaintiff's salary had more than doubled since the divorce and that she was cohabitating with her boyfriend which eliminated her need for alimony. In 2013, the court granted the Defendant's Motion to terminate his alimony payments. However, the Family Court also determined that the termination of the alimony created a windfall to the Defendant and noted that if the PSA had been equitably negotiated, the Plaintiff would have received more than three times the amount she was scheduled to receive under the full payout of the payment schedules according to the PSA. Therefore, the court ordered that the Defendant's equitable distribution payments be doubled until 2023 and that he was to pay $2500 towards the Plaintiff's counsel fees. The Defendant appealed from this decision citing that it was unfair to modify the PSA and award counsel fees in the Plaintiff's favor. The Appellate Court agreed with the Defendant. According to the Appellate Court, applications for relief from equitable distribution provisions found in PSAs are subject to review under Rule 4:50-1. Miller v. Miller, 160 N.J. 408, 418 (1999). Further, in matrimonial actions, PSAs, which are "essentially consensual and voluntary in character[,]" are "entitled to considerable weight with respect to their validity and enforceability," if they are fair and just. Petersen v. Petersen, 85 N.J. 638, 642 (1981); See also Lepis v. Lepis, 83 N.J. 139, 153 (1980). Court should rarely modify or set aside a PSA "absent clean and convincing evidence of fraud or other compelling circumstances." N.H. v. H.H., 418 N.J. Super. 262, 280 (App. Div. 2011); Glass v. Glass, 366 N.J. Super. 357, 379 (App. Div.) certif. denied, 180 N.J. 354 (2004). In this case, both parties were represented by attorneys during the negotiation and execution of the PSA and both had ample time to review and understand its provisions. Therefore, the Family Court mistakenly exercised its discretion in modifying the equitable distribution payment schedule in the PSA. Property Settlement Agreements (PSA) are very common today. If you have questions regarding how an agreement should be drafted to best protect your interests with regard to alimony, equitable distribution, or any other disputed issue it is extremely important that you seek out the advice of an experienced attorney before moving forward. For more information about equitable distribution, alimony, post-judgment modification, parenting time 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

Friday, February 13, 2015

National Same-Sex Marriage Imminent?

This week, the United States Supreme Court, in Luther Strange, Attorney General Of Alabama v. Cari D. Searcy, Et Al. On Application For Stay No. 14A840, refused to block gay marriages from being permitted in the state of Alabama and the dicta in one of the dissents of the Court's ruling seems to indicate that nationwide recognition of same-sex marriage may be imminent. In a 7-2 decision, only two justices, Clarence Thomas and Antonin Scalia, dissented in the Court's denying to stop homosexuals from obtaining marriage equality in the state of Alabama. Therefore, currently, 37 states and the District of Columbia allow same-sex couples to marry. As same-sex marriage is being recognized in the states at an alarming velocity many Americans are wondering if the Supreme Court is planning on making gay marriage recognized across the country when it rules on four (4) consolidated cases in June. Perhaps, comments included in Justice Thomas's dissenting opinion offers a sneak peek at the direction that the Court plans to take in June. In his dissention, Justice Thomas acknowledged that the Court's move to permit same-sex marriages in Alabama "may well be seen as a signal of the court's intended resolution." It is important to note that one of the key factors that the Court considers when deciding whether or not to put a hold on a lower court's ruling is the likelihood of success for the litigants if the case were to be appealed. Therefore, the Court's refusal to allow a stay on the ban of same-sex marriage in Alabama and other states that were recently similarly situated may indicate that the Court will find that same-sex marriage bans are unconstitutional in its ruling due in a few months. Same-Sex marriage became legal in New Jersey on October 21, 2013 following the decision in Garden State Equality v. Dow, N.J. 216, 314 (2013). Since that time, thousands of homosexual couples have received marriage licenses throughout the state. If you are an LGBT couple who plan on seeking a legal marriage or filing for a same-sex divorce or are simply someone who would like more information regarding the issue there are important factors that you should consider before doing so it is critical that you seek out the advice of an experienced attorney before proceeding. For more information about same-sex marriage, same-sex divorce, same-sex relationship dissolution, equitable distribution, alimony, custody and visitation, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and it is in no way intended to replace the advice of an attorney.

Tuesday, February 10, 2015

Court Considers Application To Terminate Permanent Alimony

Pretlow v. Pretlow, involved a party's application for the post-judgment modification of his permanent alimony obligation based upon his retirement. Following a trial conducted in 1998, the parties in this case were divorced pursuant to a judgment that directed that the Plaintiff pay his ex-wife, the Defendant, $100 per week in permanent alimony. Subsequently, the Plaintiff petitioned the Family Court to terminate his alimony obligation based upon changed circumstances because he claimed that he was forced into an early retirement by an illness that significantly increased his out-of-pocket medical expenses. The Family Court, after evaluating the moving papers and after hearing oral argument, denied the Plaintiff request to terminate his alimony obligation because there was a dispute as to whether or not the Plaintiff's retirement, at age 55, was voluntary or involuntary. The Family Court judge noted that the Plaintiff had made a "strong argument . . . that his retirement was involuntary" which included evidence of a decrease in his income and increase in his medical bills, yet the judge recognized that the law required an evidentiary hearing to test the Plaintiff's assertions and to allow the Defendant to respond to the Plaintiff's argument with a discussion of her own circumstances. Interestingly, the judge did not order such a hearing because he felt that doing so was not the correct course of action because it would have cost the parties "two years['] worth of alimony just arguing whether alimony should be continued or not." The Plaintiff appealed from this judgment. According to the Appellate Division, although the Family Court judge may have been correct in his assertion regarding the time and expense that holding the evidentiary hearing would have placed upon the parties, it held that there was no doubt that if the Plaintiff's assertions were true he would be entitled to the relief that he requested either in whole or in part. The Plaintiff should be not be burdened for the rest of his life with what may no longer be an equitable alimony obligation because of the disproportionate financial consequences that would result from proceeding in accordance with Lepis v. Lepis, 83 N.J. 139 (1980) and the cases that followed it. See also Stamberg v. Stamberg, 302 N.J. Super. 35, 42-44 (App. Div. 1997). Therefore, the Appellate Court reversed and remanded the case back to the Family Court to hold an evidentiary hearing on the issue. Further, the Appellate Court added that merely because an evidentiary hearing is required does not necessarily mean that the parties are to be destined to a lengthy or expensive proceeding and that the court could proceed in a brief and expeditious manner to remain sensitive to the financial circumstances of the parties. Although the laws regarding duration of alimony have recently been changed, many people will still be required to pay or receive spousal support for many years. This can be a major financial burden or benefit to you depending upon whether you are the payor or payee of the alimony obligation. 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, child support, post-judgment modification , 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.

Sunday, February 8, 2015

Child Support COLA Increase Defeated On Appeal

Legal issues that involve disputes regarding child support can be of the most emotional and difficult in all of family law because of the sensitive nature of the issues, Wexler v. Wexler, is a 2015 New Jersey case involving a party's post-judgment application to reduce his child support. The Plaintiff in this case appealed the decision of the Family Court disputing the trial judge's finding that his child support obligation should be increased due to a change in circumstances. The divorced parties in this case have two (2) children who are teenagers and were teenagers at the time this litigation commenced. At the time of their divorce each party had residential custody of one of the children and according to their final divorce judgment the Plaintiff was required to pay the Defendant $52 per week in child support. In 2011, the Defendant filed a Motion requesting residential custody of the child that was not living with her and for an increase in the Plaintiff's child support obligation. After the proceedings, the judge entered an order that, amongst other things, increased the Plaintiff's child support to $266 a week. Three days after the Order was issued, the Probation Division sent both parties a notice that the Plaintiff's weekly child support would be increased to $278 because of a "biennial cost-of-living adjustment (COLA)." Rule 5:6B(a) provides that "all orders and judgments that include child support . . . shall provide that the child support amount will be adjusted every two years to reflect cost of living." A few months later the Defendant filed a Motion to enforce the prior Order to require the Plaintiff to make his payments on time and in the full amount. Soon thereafter Probation requested that the court void their prior COLA increase of the Plaintiff's child support because it had been increased in the previous Order and therefore there was no basis for a COLA increase. Without knowledge of Probation's request, the Plaintiff filed a response to the Defendant's enforcement Motion and requested that the COLA be cancelled. In July 2013, a Family Court judge granted the Defendant's enforcement Motion and directed that the Plaintiff pay a $1,500 lump sum payment toward his arrears. The Plaintiff then filed another Motion requesting that the COLA be voided. The judge denied his request citing that "the Court entered a new child support obligation on July 31, 2013 for $278 based upon a change in circumstances." From this holding, the Plaintiff appealed. The Appellate Division held that it owed substantial deference to the Family Court's decision. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007). The court agreed with the Plaintiff that the Family Court judge mistakenly changed his child support obligation to $278 a week and therefore a change in circumstances was not the correct basis to make the increase. Being that there was no basis to raise the amount and because Plaintiff's obligation had recently been increased to $266 a week the Appellate Court reversed and remanded the case back to the Family Court to readjust the obligation. If you anticipate that you may want to petition the court for a post-judgment modification of your child support obligations it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about child support, post-judgment modification , alimony, divorce 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.

Monday, February 2, 2015

Man Cites First-To-File Rule To Dismiss Default Divorce

In the case of Kemunto-Angwenyi v. Mghenyi, the Defendant appealed from a Family Court Order denying his post-judgment Motion to Dismiss a divorce action instituted by the Plaintiff, in order to allow his action for annulment to proceed in Kenya citing the first-to-file rule. Further, he appealed from the final judgment of divorce that was entered by default against him after he refused to appear at his divorce trial. The facts set forth in the record include that the parties were married in 2003 in Nairobi, Kenya and they are both Kenyan citizens. No children were born during their marriage. Before the couple got married the Defendant lived in the United States. After they got married the Plaintiff argues that they both moved to the United States where the Defendant was a student at Michigan State University. The parties continue to disagree as to whether or not they cohabited in the United States. The Defendant maintained that that Plaintiff never lived with him in the U.S. The Defendant contends that in 2004 the Plaintiff was living in New Jersey with her mother while he was working in Maryland. He claimed that he met with the Plaintiff once in New Jersey to discuss the dissolution of their marriage. In her certification, the Plaintiff stated that she and the Defendant lived in New Jersey together for four (4) years before separating in 2007. The Defendant filed for divorce in Kenya in 2011. In the same year, the Plaintiff filed for divorce in New Jersey. In his divorce papers, the Defendant claimed that the parties cohabitated until 2004 and they lived in Nairobi as husband and wife until that time when the Plaintiff refused to join him in America. Further, his claims differed in his certifications filed in New Jersey in which he stated that the marriage was never consummated and that it was procured by fraud so that the Plaintiff could obtain immigration status in the U.S. In his Motion to Dismiss the action in New Jersey, the Defendant invoked the first-to-file rule where he alleged that he filed his action in Kenya before the Plaintiff filed in New Jersey and therefore his action should control. The Family Court denied his Motion acknowledging the rule of comity that the court that first acquires jurisdiction over a matter has precedence, but also noted that the doctrine is not inflexible and may "yield to special equities." A trial was held in 2013, at which the Defendant failed to appear and a final divorce judgment was entered in default against him. According to the Appellate Court the first-to-file rule is a principle of comity that has been well-established in United States jurisprudence. Riggs v. Johnson Cnty., 73 U.S. (6 Wall) 166, 196, 18 L.Ed. 768, 776 (1868); Smith v. M'Iver, 22 U.S. (9 Wheat) 532, 535, 6 L.Ed. 152, 154 (1824); Exxon Research & Eng'g Co. v. Indus. Risk Insurers, 341 N.J. Super. 489, 503 (App. Div. 2001). "Comity, in a legal sense, is neither a matter of absolute obligation on the one hand nor a mere courtesy and good will upon the other." Fantony v. Fantony, 21 N.J. 525, 533 (1956). The court outlined that ultimately, "to obtain a dismissal or stay of a New Jersey case for comity reasons, the moving party bears the burden to establish two facts: 1) there is an earlier-filed action in another court; and (2) that prior action 'involve[s] substantially the same parties, the same claims, and the same legal issues.'" Am. Home Prods. Corp. v. Adriatic Ins. Co., 286 N.J. Super. 24, 37 (App. Div 1995). Applying these principles, the Appellate Court found no error in the Family Court's dismissal of the Defendant's Motion to Dismiss, specifically because the record reflected that Defendant failed to show that he satisfied his burden to prove that he actually filed his action first and in fact, the record showed that he filed his nullification action after the Plaintiff filed in New Jersey. If you anticipate that you may want to petition the court for a post-judgment modification of your final judgment of divorce it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about child support, post-judgment modification, divorce, uncontested divorce, 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.