Bringing Child To Concert Is Not Reason For Custody Change

In the recent child custody case, Zoe v. Zoe, parents of an 11 year old girl disagreed on whether or not it was appropriate for the mother to bring the parties' child to see the singer P!nk in concert at the Prudential Center in Newark, New Jersey. The Honorable L.R. Jones, J.S.C. of the Superior Court of New Jersey held that following a divorce, each parent serving as a joint legal custodian has the right to exercise reasonable parental discretion over a child's activities while in that parent's physical care, free from unreasonable interference or obstruction from the other parent. This reasoning is based upon the constitutional right that each parent has to exercise reasonable discretion when determining what social activities, such as the performing arts, to expose his or her child to. According to the judge, while divorced parents may disagree, from time to time, on what is appropriate for their children to be exposed to, the court will generally not interfere with either parent's freedom of personal discretion on the issue and will not hold a parent's decision as evidence of improper parenting in a child custody case unless evidence indicates that the child was exposed to something so objectively age-inappropriate that no reasonable person would disagree. Judge Jones found that being that rock and roll music is a valid and highly recognized form of creative artistic expression in this county the Defendant-mother's decision to take her daughter to a P!nk concert during her parenting time with the child was reasonable and appropriate. In his opinion, Judge Jones reasoned that each parent has a fundamental and constitutional right to make decisions regarding a child in his or her custody or care. Stanley v. Illinois, 405 U.S. 645, 651 (1972). According to Troxel v. Granville, 530 U.S. 57, 65-66 (2000), the Constitution of the United States of America protects this very right under the Due Process Clause of the Fourteenth Amendment. Therefore, the court held that "[i]nherent in this right is the ability of a parent to exercise reasonable parental discretion on child-related choices without undue interference from the state." Judge Jones opined that in situations where the parties are joint legal custodians of a child public policy encourages communication, cooperation, and hopefully a consistency between the parties on parental decisions. Beck v. Beck, 86 N.J. 480, 488 (1981); Grover v. Terlaje, 379 N.J. Super. 400, 406 (App. Div. 2005); Hoefers v. Jones, 288 N.J. Super. 590, 601 (Ch. Div. 1994). Child custody and parenting time cases are of the most emotional and difficult cases in all of family law. If you feel that it may be beneficial to you to submit an application to the court for a modification of your current child custody or parenting time 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, non dissolution cases, 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.

Alimony Term Of Property Settlement Agreement Will Not Be Reinterpreted By The Court

In Sercia v. Sercia, the Defendant appealed from a post-judgment matrimonial Family Court Order that denied her Motion for the payment of supplemental alimony from the Plaintiff's annual bonus income under. The Appellate Court affirmed the decision of the Family Court. The parties were married in 1999 and have two (2) children. The Plaintiff filed for divorce and the parties amicably resolved all issues and executed a property settlement agreement (PSA) that was incorporated into their final divorce judgment in 2010. In the agreement, the Plaintiff agreed to pay alimony and child support based upon his salary of $125,000 and the Defendant's imputed income of $20,000. Further, a provision in the agreement specified that the Plaintiff was to pay the Defendant one third of the net cash bonus that he earned each year in addition to the alimony award. Under the PSA, the Defendant was only entitled to a share of the Plaintiff's bonus when the bonus totaled $100,000 or greater. In 2011, the Defendant submitted a Motion to enforce litigant's rights and among the relief that she requested was to compel the Plaintiff to pay one third of his bonus. The Plaintiff did not oppose the Motion. The judge denied the Defendant's request because the Plaintiff's bonus did not come close to $100,000. Another Motion was submitted in 2013 in which the Defendant requested discovery regarding the Plaintiff's income and bonus income, payment of one third the net bonus for 2010, 2011, and 2012, and counsel fees. The Plaintiff did not respond. A Family Court judge granted the Defendant's request for discovery, but denied her request for the payment of supplemental alimony. The Defendant appealed from this decision arguing that the language of the parties' PSA was being misinterpreted by the court and by the Plaintiff and that it was intended to award her with alimony payments both from the Plaintiff's base income, as well as, his bonus despite the amount. According to the Appellate Court: "An agreement to settle a lawsuit is a contract, which like all contracts, may be freely entered into and which a court, absent a demonstration of fraud or other compelling circumstances, should honor and enforce as it does other contracts." Brundage v. Estate of Carambio, 195 N.J. 575, 601 (2008). "When examining the terms of a settlement agreement, we are guided by the rules of contract construction." Globe Motor Co. v. Igdalev, 436 N.J. Super. 594, 601 (App. Div. 2014); Thompson v. City of Atl. City, 190 N.J. 359, 379 (2007). "The polestar of contract construction is to discover the intention of the parties as revealed by the language used by them." Karl's Sales & Serv., Inc. v. Gimbel Bros., Inc., 249 N.J. Super. 487, 492 (App. Div.) certif. denied, 127 N.J. 548 (1991). Therefore, a court cannot re-write a contract or grant a better deal than that for which the parties expressly bargained. Solondz v. Kornmehl, 317 N.J. Super. 16, 21 (App. Div. 1998). The Appellate Division held that the language at issue in the parties' PSA is unambiguous and therefore should be applied as the Family Courts and the Plaintiff have understood it to apply. The decision of the lower court was affirmed. If you believe that a post-judgment modification to your property settlement agreement (PSA) regarding alimony may be beneficial to you or if you anticipate defending the language of your PSA as written it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, alimony, equitable distribution 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 if an attorney.

Same-Sex Benefit Dispute To Be Heard By U.S. Court Of Appeals

Recently, a lawsuit was filed when an employer denied to provide health benefits to one of its employee's same-sex spouses. On February 18, 2015, United States District Judge Freda Wolfson of the District of New Jersey dismissed a lawsuit that claimed Meridian Health System improperly denied health benefits under COBRA to a man whose legal husband was fired. The Plaintiff, filed an appeal on the same day his lawsuit was dismissed by Judge Wolfson. In his appeal, the Plaintiff claimed that Meridian violated COBRA by neglecting to provide him with notice of benefits eligibility under the law when his husband was fired from his job as a nurse. Judge Wolfson ruled that the Plaintiff lacked standing to bring such a lawsuit under COBRA because his husband did not include him as a beneficiary on his health care plan when he was still employed. The Plaintiff and his husband were legally married in Connecticut in 2009. According to the Plaintiff, Meridian failed to send him and his spouse COBRA and open enrollment notices within the mandatory 44 day period following his husband's termination from employment. He suffered a stroke in 2011, and he claimed that his husband requested COBRA notices from Meridian in 2011. In 2012, the Plaintiff's husband received notice that he was eligible for COBRA benefits and both men received open enrollment forms, but, according to Judge Wolfson, they never completed the forms and the Plaintiff lacked standing to bring the lawsuit. The Plaintiff argued that, nevertheless, he had standing to sue because he was eligible to join the health care plan and would have been designated a beneficiary by his husband. Judge Wolfson noted that this argument was without merit and dismissed the case. Currently, this case has been appealed to the Third Circuit Court of Appeals and the parties are awaiting consideration. 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 a gay or lesbian 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.

Parenting Time Modification Requires Adequate Change Of Circumstances

In Tedeschi v. Ferragine, a post-judgment divorce matter, the Defendant appealed from Family Court Orders that reduced his parenting time and set his child support amount. The parties were marred in 2000 and divorced in 2008. The Plaintiff gave birth to two (2) sons during the marriage and pursuant to the parties' property settlement agreement (PSA) they agreed to share joint legal custody of the children and designated the Plaintiff as the parent of primary residence. Following their divorce, the Plaintiff married a man who lived in Massachusetts. In 2012, the court granted the Plaintiff's request to relocate with the children to Massachusetts and modified the Defendant's parenting time arrangement accordingly. After this, the court entered multiple Orders following a series of Motions filed by the parties concerning the Defendant's parenting time and child support obligation. The Defendant appealed from provisions that pertain to both arguing that the court erred by reducing his parenting time and calculation his child support. According to the Appellate Division: "Orders defining a parent's right with respect to contact with his child are subject to future revision depending on a showing of changed circumstances." Finamore v. Aronson, 382 N.J. Super. 514, 522 (App. Div. 2006); Voit v. Voit, 317 N.J. Super. 103, 121 (Ch. Div. 1998). The "Modification of the order may be appropriate if the moving party shows the modification requested is in the best interests of the child." Todd v. Sheridan, 268 N.J. Super. 287, 398 (App. Div. 1993); Mastropole v. Mastropole, 181 N.J. Super. 130, 136 (App. Div. 1981). In this case, the Family Court reduced the Defendant's parenting time because it determined that the Defendant was "keeping a scorecard to benefit himself, instead of trying to cooperate for the best interests of [the children]." The Appellate Court held that this finding does not elucidate and the record did not reveal what circumstances had changed and why it was in the best interests of the children to warrant cutting back Defendant's parenting time. Therefore, the ruling was reversed. In addition, the court directed that the Defendant pay child support in the amount of $196 a week for a period of time before it was to be raised to $188 per week. The court found that the Family Court made this ruling in error based upon evidence submitted reflecting the dates in which the Plaintiff was earning a certain salary. Therefore, the Appellate Court reversed this provision in the Order as well. If you anticipate that it may be beneficial to you to seek a post-judgment modification of your parenting time arrangement or child support obligation it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, child support, parenting time, child relocation, 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. ParParenting Time

Post-Judgment Relief Repeatedly Denied

In Walsh v. Walsh, a post-judgment modification case out of Morris County, the Defendant appealed from three (3) prior Court Orders that directed him to (1) liquidate his assets to pay a money judgment and finding that he failed to fully disclose financial information; (2) denied his relief to pay alimony and other fees; (3) granting the Plaintiff's Motion for enforcement of prior Orders. The parties in this case were married in 1976 and formally divorced in 2003. Their final divorce judgment has been the subject of multiple Motions and appeals. In 2008, the Defendant appealed an Order that modified his alimony obligation and denied his request to recuse the Family Court judge. The Appellate Division reversed and remanded the alimony Order but denied the recusal request. In 2011, the Defendant submitted an application for a reconsideration of the previous Order because he disagreed with the retroactive date that the alimony modification was set to. The court denied all of the relief sought. In 2013, the Defendant filed another Motion for relief from the prior three (3) Orders and the court denied the Defendant's Motion. In 2012, the Plaintiff filed a Motion in aid of litigant's rights to enforce outstanding judgments against the Defendant. In 2013, the court directed the Defendant to liquidate some of his assets to satisfy the money judgments against him. The Defendant filed a Motion for reconsideration which was denied. A subsequent Motion to reconsider the reconsideration was also denied. The Defendant appealed and argued that the court abused its discretion by denying him relief from all of his previous Motions under N.J. Court Rule 4:50-1(f) and N.J. Court Rule 1:7-4(a). The Appellate Division affirmed all of the prior Family Court decisions holding that the Defendant was barred from relief under res judicata. The doctrine of res judicata prevents the repeated litigation of an issue that has been fully and fairly litigated provided that there is 1) a final judgment by a court or competent jurisdiction, 2) identity of issues, 3) identity of parties and 4) identity of the cause of action. Selective Ins. v. McAllister, 327 N.J. Super. 168, 172-73 (App. Div), certif. denied, 164 N.J. 188 (2000). In this case, the Defendant clearly sought to re-litigate issues from previous Court Orders which were affirmed or dismissed on appeal. The repetitiveness of the Defendant's Motions were underscored by his continued reassertion of issues and allegations after the court had ruled on them. The court cannot permit frivolous matters which are fueled by personal revenge to deplete judicial resources. Kozak v. Kozak, 280 N.J. Super. 272, 278 (Ch. Div. 1994), certif. denied, 151 N.J. 73 (1997). Therefore, the Appellate court affirmed the decisions of Family Court. If you anticipate that you may want to petition the court for a post-judgment modification of your divorce judgment it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, alimony, child support, parenting time, 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.

Man's Appeal To Terminate Alimony After He Retires Is Denied

In Baker v. Baker, the Defendant appealed from a 2013 Family Court Order that denied his Motion to terminate his alimony obligation. After review, the Appellate Division affirmed the decision of the Family Court. The parties in this case were married in 1975 and obtained their divorce in 1998. Their final divorce judgment incorporated a property settlement agreement (PSA) in which the Defendant agreed to pay $10,000 a month in permanent alimony to the Plaintiff. In 2005, the Defendant's job was terminated and at the time he was fired he was earning $900,000 per year. Shortly thereafter, the Defendant got another job as the CEO of a smaller company where he expected to receive a salary of $120,000 with the potential for bonuses that would be commensurate with his previous job. However, the Defendant did not receive a salary or bonuses at this new position as the company was in dire financial straits. In 2008, the Defendant filed a Motion for a reduction in his alimony obligation. The Family Court denied his application. The Defendant appealed and while his appeal was pending he filed two additional Motions for interim relief, which the court also denied. At the time, the Plaintiff voluntarily agreed to accept a decrease to $8,000 a month in her alimony award. The Family Court held a plenary hearing on the issue in 2010 at the conclusion of which the Defendant's alimony was temporarily reduced to $6,666 a month. The Defendant appealed this decision. In 2011, the Appellate Court affirmed the decision of the lower court. In 2012, the Defendant resigned from the company as it was allegedly about to close its doors and he immediately filed a Motion to terminate his alimony obligation. A plenary hearing was held at which both parties testified about their financial troubles and difficulties securing appropriate work. At the conclusion of the hearing the court denied the Defendant's request. According to the court, there had been "no substantial change in circumstances since the last motion on the [d]efendant's side of the equation" and that termination of alimony was not warranted because the Defendant voluntarily retired from his position. Moreover, when employed as his last company, the Defendant had not acted in good faith as he voluntarily went several years without receiving any income while at the same time loaning the company $138,000. Finally, the court found that instead of seeking a position that would enable him to pay alimony, the Defendant was only "interested in high paying jobs. . . ." Therefore, the court imputed $120,000 a year in income to him which was similar to what he could earn as the base salary at his previous job. The court also noted that the Defendant earned about $170,000 a year in unearned income. In the end, the court ordered the Defendant to pay $5,166 per month in alimony. He appealed. According to the Appellate Division, alimony "may be revised and altered by the court from time to time as circumstances may require." N.J.S.A. 2A:34-23. In order to make such a modification a party must show "changed circumstances." Lepis v. Lepis, 83 N.J. 139, 146 (1980); Weishaus v. Weishaus, 180 N.J. 131, 140-41 (2004). The ". . . party seeking modification has the burden of showing such 'changed circumstances' as would warrant relief from the support or maintenance provisions involved." Martindell v. Martindell, 21 N.J. 341, 353 (1956). There is no " . . . bright line rule by which to measure when a changed circumstance has endured long enough to warrant a modification of a support obligation, instead, such matters turn on the discretionary determinations of Family Part judges, based upon their experience." Donnelly v. Donnelly, 405 N.J. Super. 117, 128 (App. Div. 2009); Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006). Retirement may constitute a change in circumstances warranting a modification or elimination of alimony. Silvan v.Sylvan, 267 N.J. Super. 578, 581 (App. Div. 1993); Deegan v. Deegan, 254 N.J. Super. 350, 358-59 (App. Div. 1992). The analysis turns to whether or not the retirement was voluntary or involuntary. If the change in involuntary, all that is required of the analysis is the parties' financial circumstances. If the change was voluntary the court must consider a list of factors such as whether or not the retirement was made in good faith. In this case, the Appellate Division found that the Family Court did not abuse its discretion in finding no changed circumstances and affirmed the decision of the lower court. Being that the laws governing alimony have recently been changed, it is very important that you seek out the advice of an attorney to protect your rights an entitlements. If you think that it may be beneficial for you to petition the court for a post-judgment modification of your alimony obligation or for any other reason it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, divorce, post-judgment modification, 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.

Hiding Assets From Equitable Distribution Voids Divorce

In Zuba v. Zuba, the Plaintiff appealed the Family Court's denial of her Motion to re-open her final judgment of divorce (FJOD) based upon information that she received afterward that indicated that the Defendant had concealed property that was subject to equitable distribution. The Appellate Court vacated the Family Court's judgment and remanded the case for further discovery proceedings. In this case, the parties were married in 1980 and divorced in 2011. According to the property settlement agreement (PSA) that was incorporated into their divorce judgment: "The parties represent[ed] that each of them ha[d] candidly and fully disclosed to the other all of their income, assets and liabilities as of the execution of th[e] Agreement." Following the parties' divorce the Defendant lived with a third party and allegedly disclosed to the party and other members of her family that he owed property in Costa Rica and had a bank account in Belize that he did not include in his Case Information Statement (CIS) that was filed during his divorce. After the Defendant left her house, the third party contacted the Plaintiff and told her about the concealed property that the Defendant had hidden during their marriage. In 2013, the Plaintiff filed a Motion to set aside the parties' PSA based upon the Defendant's oral and written assertions that the marital property listed in the PSA and his CIS was the entire marital estate. The Family Court judge denied the Motion holding that the Plaintiff did not establish a prima facie case for fraud. The Plaintiff appealed arguing that at the very least she was entitled to post-judgment discovery and a potential plenary hearing following the discovery period based upon her petition to have her divorce judgment vacated under Rule 4:50-1. According to the Appellate Division, New Jersey has a strong public policy that favors the settlement of litigation. Gere v. Louis, 209 N.J. 486, 500 (2012). "[T]he settlement of litigation ranks high in our public policy." Brundage v. Estate of Carambio, 195 N.J. 575, 601 (2008). The court also recognized that Motions to set aside final divorce judgments under N.J. Court Rule 4:50-1 are only to be granted sparingly, but the Rule does permit relief when the facts and equities compel, specifically in the context involving equitable distribution marital assets. The court held that "where there is a showing of fraud of misconduct by a spouse in failing to disclose the true worth of his or her assets, relief may be granted under Rule 4:50-1(f) if the motion is made within a reasonable time. Rosen v. Rosen, 225 N.J. Super. 33, 36, (App Div.) certif. denied 111 N.J. 649 (1988). 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.

Default Divorce Reversed Due To Non-Compliance With Court Order

In Eichenbaum v. Eichenbaum, a case out of Morris County, the Defendant appealed a final judgment of divorce after a Family Court judge struck down his defenses and ordered a default against him. Following three (3) days of trial, the Family Court judge adjourned the case because the Defendant attempted to introduce a great deal of documentation into evidence that was not provided to the Plaintiff during the discovery period. Further, the judge ordered that the Defendant pay $50,000 in attorney's fees to the Plaintiff's attorneys to allow them to review the new information. When the trial resumed forty-five (45) days later the judge entered a default judgment against the Defendant for failing to pay the Plaintiff's attorney's fees. The Appellate Court reversed the final divorce judgment with regard to all issues except for the declaration of divorce, which was affirmed, because it was uncontested. According to the Appellate Court, the entry of default by the Family Court was not due to the Defendant's failure to provide discovery, as the court had already dealt with that issue when it adjourned the trial in order to allow the Plaintiff and her attorney to review the documents. The default was entered because the Defendant did not pay the $50,000 to the Plaintiff's attorney for preparing for the adjourned trial. The court held that, the core principle fundamental to our justice system is that every reasonable indulgence should be employed to avoid the onerous sanction of a default and to achieve "just and expeditious determinations between the parties on the ultimate merits." Ragusa v. Lau, 119 N.J. 276, 284 (1990); Tumarkin v. Friedman, 17 N.J. Super. 20, 27 (App. Div. 1951). This policy requires a narrow application of N.J. Court Rule 4:43-1, which allows a Plaintiff to request entry of default against a Defendant who has "failed to plead or otherwise defend as provided by these rules or court order . . ." Failure to comply with any court order will not be sufficient for entry of default, the court order must be rooted in a failure to defend. DYFS v. M.G, 427 N.J. Super. 154, 168-69 (App. Div. 2010). In this case, the Appellate Court did not find that entering default for failing to pay attorneys for work presumably already undertaken was an appropriate sanction. The judge should have imposed other sanctions to offset the Defendant's debt. Therefore the Court reversed the decision. Choosing to seek a divorce from a spouse can be one of the most emotional and difficult decisions that a person can make in their lifetime. If you feel that it may be beneficial to you to petition the court for a divorce from your spouse or if you simply would like to obtain additional information about the divorce process or its legal consequences it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about divorce, uncontested divorce, equitable distribution, child custody, non dissolution cases, 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.