Equitable Fraud: Family Law Case Of First Impression

In Easton v. Mercer, a case of first impression in New Jersey family law, a judge has ruled that a marriage can be annulled on the grounds of equitable fraud when the evidence presented suggests that annulment, as opposed to a traditional divorce, presents the most equitable remedy for the parties. According to Ocean County Superior Court Judge Lawrence Jones, his ruling allows judges to nullify marriages without evidence of actual fraud. "[E]quitable fraud is a concept that permits a court of equity to act in the name of fairness," Judge Jones was quoted as saying. "The doctrine does not require an intent to deceive, and the granting of relief is designed not to punish a defendant for intentional fraud or wrongdoing, but rather to assist an innocent plaintiff and render him or her whole through applicable equitable relief." In the instant case, the couple married but never lived together, never consummated the marriage, and never financially supported each other. Directly after their marriage the Defendant continued to live in her parents' house. Four years later, the Plaintiff sought an annulment based upon the doctrine of equitable fraud, but did not claim that there was actual fraud or deceit on the part of his wife. The Plaintiff claimed that the Defendant committed fraud by bowing to her parents pressure to abandon him. He argued that if he had known that the Defendant was going to change her mind directly after the wedding, he never would have married her. The Defendant never challenged the Plaintiff's request for an annulment, but Judge Jones could not automatically grant such relief. He could simply have granted a divorce, but granting an annulment presented a more complicated situation because the ruling essentially makes it as if the marriage never happened. According to Judge Jones, the nullity statute, N.J.S.A. 2A:34-1, provides for grounds in which a marriage can be annulled. The language of the law allows for annulment when there has been "fraud to the essentials of the marriage," although this phrase has never been defined. Ultimately, Judge Jones granted the annulment based upon the fact that the parties did not have any children, they never lived together, and had no financial interdependence. In fact, they never held themselves out to be married. Therefore, the case had few issues or impediments and the equitable result dictated that the annulment be granted. If that facts had been different perhaps the result would have been as well. If you are contemplating divorce, annulment, post-judgment modification or you would like more information regarding a family law issue you should seek out the advice of an experienced attorney before moving forward. For more information about divorce, uncontested divorce, equitable distribution, child support, alimony 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.

Parenting Time Plan Upheld By NJ Appellate Division

In N.S. v. D.O., the Defendant appealed from a Court Order which set forth a parenting time schedule because he felt that the Order did not provide him with the "full measure of his parental rights" by denying him liberal and reasonable parenting time. In 2010, the Plaintiff obtained a temporary restraining order (TRO) against the Defendant under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. At the same time she filed a Complaint for Divorce against him. The Family Court judge assigned to the case referred the matter to the Bergen Family Center (BFC) for the purpose of conducting a custody/parenting time evaluation. In 2011, the BFC issued a very detailed written report documenting its evaluation and recommendations. The evaluator interviewed the parties, the children, the grandparents, the Defendant's treating psychologist, the treating pediatrician of the children, a DYFS worker who investigated a prior claim that the Defendant made (after losing parental rights) that the parties' daughter was sexually abused by her maternal grandfather, and many others. The evaluator acknowledged that the case was "a highly charged situation for everyone involved," and although the Defendant had not had access to his children since the FRO was issued, the evaluator recommended that the prohibition against him having parenting time with his children should "be modified at this time," and that reunification with his children should proceed under the guidance of the son's therapist. Finally, it was recommended that after at least six (6) sessions without contradictions the Defendant should be permitted supervised visitation which should continue for at least six (6) months. After this, the Defendant could petition the court for the supervision to be lifted. The parties executed a Consent Order on May of 2011 that tracked the recommendations of the BFC evaluator. It was later ordered that both parties submit to the court proposed parenting time plans. Upon the submission of both parenting time plans, the judge observed that there was "not that much of a difference" between their proposed plans and described their argument regarding holidays as "minor." The judge then indicated that she would prepare an Order that blended their two proposals providing them with "something [they] both [could] live with . . . that allows both of [them] to continue to work together." Subsequently, the judge prepared a very detailed Order concerning custody and parenting time that provided that the Defendant receive unsupervised visitation on alternate weekends, without overnights, until the 2014 school year when the weekend visitations were to become overnights. The Defendant appealed arguing that the schedule was unreasonably restrictive without providing any reasons for being so. The Appellate Division disagreed. According to the Appellate Court, in reviewing the Order of the Family Court, it "defer[ed] to the factual findings of the trial court," N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104, 952 A.2d 436 (2008). In doing so it recognized the "family court's special jurisdiction and expertise in family matters." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343, 990 A.2d 1097 (2010); Cesare v. Cesare, 154 N.J. 394, 413, 713 A.2d 390 (1998). It is only when the Family Court's conclusions are ". . . so 'clearly mistaken' or 'wide of the mark'" that the Appellate Division will intervene and make its own findings. In this case, the court found that the Family Court judge held that the parenting plans submitted by the parties were not that different and the differences that did exist were minor. The judge's stated goal of blending the proposals to create an equitable Order that each party could live with was achieved and therefore there was no reason to disturb the Family Court's Order. Custody and Visitation are extremely sensitive issues wherein an appropriate balance between the needs of the child with the existing situation of each parent. If you believe that a modification to your custody or parenting time may be beneficial to you it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, parenting time, equitable distribution, divorce, or other family law matters in New Jersey visit the DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice if an attorney.

Application Of Child Support From Social Security Disability Challenged

In Watson v. Chamberlain, the Defendant appealed from a Court Order entered in 2014 with regard to the Plaintiff's child support obligation for their daughter. The parties in this case were never married. They had a daughter together in 1998. In 1999, the Family Court issued an Order requiring the Plaintiff to pay to the Defendant $88.00 a week in child support. By 2014, when the Motions in this case were filed, the Plaintiff's child support obligation had increased to $117.00 a week due to cost of living adjustments. The Plaintiff had gone on and off Social Security Disability (SSD) throughout his daughter's life, and as a result, received multiple lump SSD dependency checks on the child's behalf. He received $8,329.00 in 2005, $13,820.00 in 2009, and $11,297.00 in 2013. With regard to the 2005 and 2009 SSD checks, the Family Court first applied the money to the Plaintiff's arrears with the remaining amounts being put in a trust fund for the child's future education. Each time, though, the Defendant claimed that she had already spent the money on the child's behalf. Due to this, the court amended its Orders to credit the balance from each check against the Plaintiff's future support obligations. The 2013 SSD was the main issue of this appeal. When the Defendant received this check, she preemptively acted to prevent the Plaintiff from receiving a credit against his future child support obligations, arguing to the court that the previous credits provided the Plaintiff with windfalls. The Plaintiff cross-moved to have the full amount credited to his child support obligation. The Motion judge seemed to ignore the credit from the 2009 SSD check in his calculations and found that prior to the 2013 SSD check the Plaintiff had an existing arrears of $11,921.00. After applying the 2013 SSD check, the court found that the Plaintiff still owed $625.00 in arrears and the court applied the entire 2013 SSD check to the Plaintiff's arrears instructing probation to "verify and adjust accounts accordingly." Unfortunately, the court's Order did not direct the probation department to disregard to credit from the 2009 SSD check and it simply credited the 2013 SSD check to the Plaintiff's account. Therefore, the Plaintiff netted a credit of $10,935.97 toward future child support payments. The Defendant appealed. According to the Appellate Division, the propriety of a child support credit for SSD benefits paid to a child depends upon the equities of the case. Diehl v. Diehl, 389 N.J. Super. 443, 449, 913 A.2d 803 (App. Div. 2006). The source and purpose of SSD benefits for dependents are relevant to the equities. Id. The courts have generally credited SSD benefit payments against child support where the "credit is sought against support obligations contemporaneous with benefit payments." Id. SSD benefits that exceed the rate of child support are gratuity to the child and should not be credited. Id. at 450. However, the supporting parent does not need to carry an arrears balance to receive a credit for retroactive SSD payments. Id. In this case, the benefits paid to the child never exceeded the Plaintiff's child support obligation over the periods of time at issue. Therefore, the court could discern no error in crediting of any SSD payments against the child support obligation. Therefore, this part of the Order was affirmed. If you anticipate that it may be beneficial to you to seek a modification of your child support obligation it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about child support, alimony, 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.

Mediated Agreement Without Party Signatures Was Held To Be Binding

In Campbell v. Campbell, the Defendant appealed from the incorporation unsigned parenting time agreement into the parties' final divorce judgment after a failed attempt at mediation. The Appellate Division affirmed the decision of the Family Court. The parties in this case have two (2) sons who were aged six and ten at the time of the agreement. The younger son has special needs and has suffered from epilepsy. The terms of the agreement in question were reached during a mediation which was held in 2012. The agreement was written down by the mediator. The resulting Memorandum of Understanding (MOU) was unsigned, but the case was reported to the court as settled concerning all parenting time issues. The Defendant filed an Answer to the divorce Complaint, before the mediation, containing a parenting time plan that gave him the same schedule with the children that was reached in the MOU except rather than two week night dinner visits, he would have had one weekly dinner and one weekly overnight visit. In the MOU the parties agreed to joint legal custody along with the parenting time designation for each parent including summer vacations and holidays. The reasons for the delay in signing the MOU were disputed, but in the interim, the Defendant rejected the terms of the MOU unless the Plaintiff agreed to modify it to include two (2) weekly overnights with his children along with some other changes. The Plaintiff agreed to make some of the changes but not all. Two months after the mediation session and after the continued negotiation the Defendant rejected the MOU. In 2013, the Plaintiff filed a Motion seeking to incorporate the MOU into the parties' divorce decree. The Family Court judge granted the Plaintiff's Motion after observing that the children substantially benefited from the parties' agreement and that the MOU could be modified slightly for the best interests of the children. According to the Appellate Division, it is well established that our judicial system encourages and supports negotiated agreements between divorcing parties. Weishaus v. Weishaus, 180 N.J. 131, 143 (2004); Konzelman v. Konzelman, 158 N.J. 185, 193 (1999). Mediation is an alternative means of resolving parenting conflicts and is also available to "resolve aspects of family law matters." Court Rule 1:405(b)(2). The statutory source for mediation is the Mediation Act, N.J.S.A. 2A:23C-1 to -13. The court found that in this case, after the parties reached an agreement, the Defendant had a gradual change of heart and that triggered a new round of litigation . Under the circumstances, the Appellate Division affirmed the decision of the Family Court holding that the Family Court judge's ultimate decision to incorporate the MOU into the divorce decree was based upon weighty equitable considerations that warrant the enforcement of the document. If you believe that mediation is possible in your divorce or family law matter be sure to contact an attorney experienced in mediation and proper drafting and execution of Memorandums of Understanding. For more information about mediation, post-judgment modification, parenting time, equitable distribution, divorce, or other family law matters in New Jersey visit the DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice if an attorney.

Post-Judgment Alimony Dispute Leads To Appeals

In Dondona v. Dondona, a case appealed out of Morris County, the Defendant appealed from a 2014 Court Order that denied her post-judgment cross-motion to increase the alimony payments being made to her by the Plaintiff. The Appellate Court reversed the decision of the lower court. The parties in this case were married in 1984 and obtained a divorce in 2008. One child was born during the marriage. The parties executed a property settlement agreement (PSA) that was incorporated into their final divorce judgment which required the Plaintiff to pay $600 a month in alimony to the Defendant until their child was emancipated, and then the alimony was to increase to $950 a month. The PSA also specified that if the circumstances between the parties changed, they would come to an agreement with respect to the change or make an application to the court to resolve the dispute. In 2009, the Defendant began living with another man and the Plaintiff stopped making his alimony payments. In 2010, the Plaintiff filed a motion to terminate his alimony obligation altogether. In 2012, the parties executed a Consent Order in which the Plaintiff agreed to pay $375 a month for alimony until further Order of the court or consent of the parties. In 2014, the Plaintiff filed a Motion to emancipate the parties' daughter and for the termination of his alimony obligation due to the Defendant's six (6) years of cohabitation. The Defendant filed a cross-motion for alimony payments of $950 as was originally set forth in the PSA. The Plaintiff also claimed that his financial circumstances had changed and he was making much less than money than when the parties divorced. The Family Court judge granted the request to emancipate the parties' daughter but denied the motion to terminate alimony. Further, the Defendant's motion for an increase in alimony to $950 was also denied, and the Plaintiff was required to continue paying $375 a month. According to the Appellate Division, it needed to determine if each party presented a prima facie case of changed circumstances to warrant a termination or modification of alimony. Lepis v. Lepis, 83 N.J. 139, 146 (1980). Both parties were seeking a change in alimony. The PSA provided that if the circumstances between the parties were to change, they could come to an agreement or request that the court make a determination. The Consent Order was an agreement between the parties to change the alimony amount at that specific time until they either came to a new agreement or a Court Order modified the amount. The Appellate Division held that both parties had provided sufficient financial information for the Family Court to order appropriate discovery and make detailed findings of fact as to a new alimony determination. Therefore, it reversed the decision of the Family Court and remanded the case back there for further proceedings to determine an appropriate alimony obligation. 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 the DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Reduction In Child Support After Incarceration For Arrears

In Solomon v. Solomon, the Defendant appealed from a 2013 Family Court post-judgment Order that granted the Plaintiff's Motion for reconsideration to compel the Defendant to pay substantial child support arrears from his 50% share of his 401(k) or IRA and the proceeds from the sale of a timeshare property. The parties in this case were married in 1996 and had three (3) children. They executed a property settlement agreement (PSA) in 2006 which was incorporated into their final dual judgment of divorce on the same day. The PSA required the Defendant 1) to pay the Plaintiff $300 a week in child support, and $325 per week in alimony for five (5) years; 2) divide the Defendant's 401(k) equally between the parties; and (3) divide the parties' ownership and usage of their timeshare property equally. In 2007, the court assigned to the Plaintiff an amount equal to 50% of the value of the Defendant's IRA and found that the Defendant violated the Plaintiff's rights by willfully failing to turn over to her half of the 401(k) in accordance with the provisions of their PSA. In 2009, the Defendant was sentenced to seven (7) years in prison. Subsequent to his entering into the PSA but before his incarceration, he was required to pay $35 per week toward support arrears. While he was incarcerated, the Defendant submitted an application to reduce his child support payments to $5 a week, to terminate his alimony, and to terminate his payment towards arrears. He argued that his incarceration amounted to a change in circumstances. In 2011, a Family Court judge denied the Defendant's request to decrease his child support payments, but suspended the enforcement of his support obligations pending his release. By consent, the Defendant's alimony obligation was terminated retroactive to 2008. In 2011, the Defendant was released to a work house. In 2013, the Family Court issued an Order pertaining to his child support obligation to which the Defendant moved for reconsideration. The judge who heard the Motion arguments, granted the Defendant's Motion for reconsideration and ordered that 1) the Defendant maintain his 50% interest in the 401(k); 2) the parties continue to share ownership of the timeshare, 3) the parties submit current case information statements, and 4) denied the Defendant's request to stay his existing child support obligation. In the interim, the Defendant's child support obligation was increased due to a cost of living increase and another judge ordered that the Defendant pay $35 a week towards his $90,358.64 arrears. In response, the Plaintiff filed a Motion for reconsideration which was granted and the Defendant was ordered to pay half of his 401(k) or IRA toward his child support arrears and to convey his interest in the parties' time share to the Plaintiff to put towards his arrears. This Order also reduced the Defendant's child support from $366 week to $66 and ordered that he pay an additional $100 per week ward his arrears. The Defendant appealed arguing for a strict enforcement of the terms of the PSA. According to the Appellate Division, "Marital agreements are essentially consensual and voluntary and as a result, they are approached with a predisposition in favor of their validity and enforceability." Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995). Yet, in this case, the court was guided by its long-standing view that the " . . . obligation to provide child support 'is engrained in our common law, statutory, and rule-based jurisprudence.'" Colca v. Anson, 413 N.J. Super. 405, 414 (App. Div. 2010). "Child support is the right of the child and responsibility of both parents, not a child won or lost by the custodial parent from the non-custodial parent." Pascale v. Pascale, 140 N.J. 583, 591 (1995). When considering all guiding principles that inform child support decisions and its standard of review, the court was satisfied that the lower court enforced the parties' PSA to the children's best interests and therefore affirmed the decision of the Family Court. If you anticipate that it may be beneficial to you to seek a post-judgment modification of your 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, alimony, 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.

Emancipation And Alimony Termination Application Results in Child Support Modification

In Jackson v. Jackson, the Plaintiff appealed from a 2013 post-judgment matrimonial Order regarding the emancipation of the parties' daughter and the termination of alimony payments to the Defendant. The Family Court judge denied the emancipation request after finding that the Defendant's documentation showed the child was enrolled as a full-time college student and recalculated the child support obligation. N.J.S.A. 9:17B-3; Newburgh v. Arrigo, 88 N.J. 529, 543, 443 A.2d 1031 (1982); Gac v. Gac, 186 N.J. 535, 543, 897 A.2d 1018 (2006); Moehring v. Maute, 268 N.J. Super. 447, 480-81, 633 A.2d 1055 (Ch. Div. 1993). The judge also denied the Plaintiff's request to terminate alimony. On appeal, the Plaintiff challenged the income that was used to compute his child support obligation. Upon review, the Appellate Division discovered that the documentation that was relied upon by the Family Court judge to fix the Plaintiff's child support obligations revealed a gross weekly income of $1,219, which is the same amount that the Plaintiff reported on his case information statement submitted to the court. The Plaintiff's 2012 W-2 showed a gross annual income of $63,280 which is $1,217 a week. Therefore, the Appellate Court did not find any error on the N.J. Child Support Guidelines worksheet that was used to calculate the support obligation. The calculation did neglect to include the alimony paid by Plaintiff of $125 a week. According to the Appellate Court, the calculation should have deducted the alimony payment from the Plaintiff's income and included it within the Defendant's income. The child support calculation also failed to include the allocation of payments made for the child's health insurance. Therefore, the child support obligation of $183 a week was wrong and was vacated and recalculated. The Appellate Court affirmed the Family Court's Order using the Plaintiff's weekly income of $1,217 and reversed the Order that directed that the child support obligation was $183 a week and remanded the case back to the Family Court to recalculate the support accounting for alimony and the cost of health insurance. If you anticipate that it may be beneficial to you to seek a post-judgment modification of your 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, emancipation, 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.