Child Custody Modified After Parties Failed To Abide By Agreement

In Myers v. Myers, the Defendant appealed from the child custody and child support provisions issued in a 2013 final divorce judgment following a trial. The Appellate Division affirmed the decision of the lower court after a careful review of the issues and the record. The parties in this case participated in a three day divorce trial in 2013. The final divorce judgment incorporated a partial stipulation of settlement which was filed in 2013. This partial settlement resolved many issues between the parties but left the issue of custody of their child and child support unresolved. Prior to the trial, in 2009, the parties executed a Consent Order that addressed the custody of their son. The child resided with each party on alternating weeks and on the weeks that each parent did not have the child they exercised parenting time on Tuesday and Thursday evenings. At trial, the Defendant proposed the same parenting time arrangement as was negotiated in the Consent Order. The Plaintiff sought a different schedule and requested that she be named the parent of primary residence. Her argument was that the prior arrangement never really took effect because after one month the Defendant moved back into the house with her and her son and that she had always been the one to take care of their son. She contended that the Defendant did very little with their son except to take him to practices and games. After the trial, the Court noted that after reviewing the relevant case law, it was guided by N.J.S.A. 9:2-4 in making a custody determination. The judge found the Plaintiff's testimony to be credible and found that the Defendant did not cooperate in the Plaintiff's attempt to negotiate an agreed upon parenting time schedule. The judge determined that from the "defendant's own testimony and his own demeanor" that a shared custody arrangement would not be appropriate. The judge awarded primary residential custody to the Plaintiff. The Defendant was given 104 overnights a year with his son and from this determination the court established that the Defendant's child support obligation would be $143 a week. N.J. Court Rule 5:6A. The Defendant appealed. According to the Appellate Division, regarding custody, the statute requires that the court consider multiple factors in determining the best interests of the child. N.J.S.A. 9:2-4(c). A court is required to place on the record the factors it considers consequential in reaching a custody decision, as the judge in this case had done. Monte v. Monte, 212 N.J. Super. 557, 565, 515 A.2d 1233 (App. Div. 1986). In this case the judge expressed a concern in the lack of cooperation between the parties mostly due to the Defendant's "problematic" behavior. The Appellate Division found that the Family Court judge clearly had the child's best interests in mind when he made the custody decision and subsequently the child support award. Therefore, the Appellate Division affirmed the decision of the lower court. 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, child support, 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 of an attorney.

Emancipation and Child Support Provisions Of PSA Not Enforced

Cosco v. Cosco, is a post-judgment dissolution matter in which the court addressed the issue of a child's emancipation in the context of a parent who sought to terminate his child support obligations based upon a settlement agreement that specified that the support would terminate when the child turned eighteen years old. The Plaintiff appealed from the Family Court's Order that denied the emancipation of the parties' sons and the termination of child support, amongst other requests for relief. He argued that the court erred in not enforcing the parties' property settlement agreement (PSA) that set the termination date for the child support because the provisions were "fair and equitable" and the "public policy against waiver of child support [did] not apply . . . ." The Appellate Division affirmed the decision of the Family Court. According to the Appellate Division, any agreement attempting to abrogate a child's right to support is not enforceable. The courts have consistently held that an agreement between parents purporting to waive child support does not affect the child's right to those benefits. Kopak v. Polzer, 4 N.J. 327, 332-33 (195); Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993); Ryan v. Ryan, 246 N.J. Super. 376, 383 (Ch. Div. 1990). Applying these principles, the Appellate Division determined that the Family Court correctly determined that, based upon the parties' Certifications confirming the children were still in school and reliant upon their parents for support, neither child was emancipated and neither their turning eighteen nor the PSA altered their entitlement to support. Gac v. Gac, 186 N.J. 535, 543 (2006); Moehring v. Maute, 268 N.J. Super. 477, 480-81 (Ch. Div. 1993). Child emancipation and child support 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 support obligation or with regard to the emancipation of your children it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about child custody, child support, post-judgment modification, emancipation, 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 of an attorney.

Emancipation Does Not Eliminate Child Support Arrearage

Berthoumieux-Egas v. Berthoumieux, is a post-judgment dissolution matter in which the Defendant, father, appealed from a 2013 Family Court Order that denied his Motion for reconsideration regarding the emancipation of the parties' daughter and subsequently his child support obligation. The Family Court judge stated in his statement of reasons for denying the Defendant's Motion that the Order from which the Defendant appealed was the result of the undisputed emancipation of the parties' only child. The Order was the result of the exchange of Motions in which the Defendant sought his daughter's emancipation and requested to pay $25 a week towards his support arrears. The Plaintiff sought an Order that directed the Defendant to pay to her $8,000 as reimbursement for payments she made for the child's college and medical expenses. The Family Court granted the Defendant's request to emancipate the child, granted the Plaintiff's request to increase the Defendant's arrears and denied the Defendant's request to maintain his current arrears payment of $25 a week. The amount of increase in the Defendant's arrears payments to $191 a week was equal to his total weekly support obligation for his daughter. The Defendant submitted a Motion for reconsideration which was denied. The Family Court stated that it denied his Motion because it failed to meet the standards for consideration as defined by Court Rule 4:49-2 because the Defendant failed to show where the court erred and failed to provide any case law or statute that was contrary to the court's decision. The Defendant appealed. According to the Appellate Division, it could not perform its appellate function because the Defendant failed to provide a complete appendix which should have included copies of the Motions he filed with the supporting financial documents. Lacking those documents, the court could not determine if the Family Court improperly denied the reconsideration Motion. The Defendant's failure to provide these documents breached his "oblig[ation] to provide the court with 'such other parts of the record . . . as are essential to the proper considerations of the issues.'" Soc'y Hill Condo. Ass'n v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177, 789 A.2d 138 (App. Div. 2002); N.J. Court Rules 2:6-1(a)(1)([I]) and 2:6-3. Therefore, the Appellate Court affirmed the decision of the Family Court. If you are considering action in the NJ Family Court, the process can be complicated. Often the results litigants seek are postponed or denied due to lack of knowledge regarding court procedure or filing requirements making it essential that you consider retaining a family law attorney to represent your interests. For more information about post-judgment modification, 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.

Father Ordered To Participate In Parenting Time With Daughter

R.R. v. L.A.C., is a matrimonial divorce action focusing on parenting time in which the Plaintiff (the non-custodial parent) did not answer the Complaint but attended the default divorce hearing and asked to voice his apprehensions about having parenting time with his daughter. The Plaintiff, the father, worked full-time and the Defendant, mother, worked part time earning minimum wage and lived with the parties' daughter. At the default divorce hearing the Plaintiff requested a divorce with the possibility of future parenting time "when [he] [was] ready." The Defendant requested that the Plaintiff be available to help raise their child. The Plaintiff emigrated from Peru to the United States in 1987. He returned to Peru years later and the parties married there in 1993. They lived separate and apart for the majority of their marriage after he returned to the United States in 1997. Although he returned to Peru a few times he did not see his wife and daughter from 2002 through 2013 when he sponsored their emigration from Peru in 2013. The parties' daughter had no recollection of her father. Difficulties within this family emerged immediately because the Plaintiff desired to live separate and apart from his family with little involvement in their lives. Further, the child, who was thirteen years old, was having extreme difficulties assimilating into the American school system. She was constantly bullied due to her cleft palate, hearing loss, and impaired speech. Seeing no way out, the Defendant sent the child back to Peru to live with her maternal grandmother. Within a few months, the child returned to the United States to be with her mother. During the default hearing, the judge noticed the child sitting in the back of the courtroom and with the aid of an interpreter asked her questions about her relationship with her father. She meekly asked the court ". . . if it [was] possible for him [her father] to see [her] once a week," and then hesitated and requested that she would like "to give him a hug." The court then questioned the father who explained that he was very uncomfortable about seeing his daughter and that he was not ready to spend time with her without the aid of therapists. According to the court, a custodial parent is entitled to the non-custodial parent's assistance. Non-custodial parents should assist custodial parents in raising and nurturing their children unless there is a Court Order prohibiting them from doing so. Further, the court has the equitable authority to facilitate parenting time between children and absent parents, to order counseling, and to require parents to complete parenting programs and "in promoting the child's welfare, the Court should [make] every effort to attain for the child the affection of both parents." In re Jackson, 13 N.J. Super. 144, 147-48, 80 A.2d 306 (App. Div. 1951). "The Family Court possesses broad equitable powers to accomplish substantial justice." Finger v. Zenn, 335 N.J. Super. 438, 446, 762 A.2d 702 (App. Div. 2000). In this case, the court entered an Order requiring the Plaintiff to call his daughter and see her weekly and identified low cost counseling and programs that promoted fathering skills. If you believe that a modification to your parenting time schedule or plan 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.

Decision To Award Sold Custody of Children Appealed

In Wu v. Liu, the Defendant appealed the decision of the New Jersey Family Court awarding sole child custody to his ex-wife and other issues. The Appellate Division affirmed the decision of the Family Court. The Plaintiff and Defendant were married in 1995 and emigrated to the United States from China shortly after that. They were married and divorced once before when they lived in China. In 1996, the Plaintiff gave birth to a daughter and a son was born in 2001. In 2011, the Plaintiff filed a Complaint for divorce. The parties represented themselves in the divorce and the matter was tried as to all issues in the Family Court. In 2014, the judge issued the final judgment of divorce and awarded the Plaintiff with sole legal and residential custody of the children, ordered the Defendant to pay $297 a week in permanent alimony, and equitably distributed the parties' real property in Belle Mead and Princeton. The Defendant hired an attorney and an appeal was filed. The Defendant supplied transcripts of the divorce proceedings and his brief referenced the proceedings, but the Family Court judge's finding of fact and conclusions of law were not contained in the brief. Further, no statement of reasons were included with the divorce judgment. The Plaintiff, who represented herself in the appeal, filed her brief in opposition, the Appellate Court became aware that the Family Court judge had forwarded the judgment to the parties on the day it was filed along with a recording of his statement of reasons which were orally placed on the record. The Appellate Division, exercised its discretion not to dismiss the appeal, although the Defendant clearly violated the court rules. N.J. Court Rule 2:5-3(b), requires, with limited exception, that the "transcript shall include the entire proceedings in the court . . . from which the appeal is taken." Instead, the court ordered the Defendant to provide transcripts of the Family Court judge's findings and conclusions - which the Defendant complied with. The Defendant argued that the Family Court judge erred in denying his request for legal and physical custody of the children, amongst other issues. The Appellate Court affirmed the decision of the Family Court, citing that it applied the deferential standard that "[T]he decision concerning the type of custody arrangement [is left] to the sound discretion of the trial court[.] Nufrio v. Nufrio, 341 N.J. Super. 548, 555, 775 A.2d 637 (App. Div. 2001); Pascale v. Pascale, 140 N.J. Super. 583, 611, 660 A.2d 485 (1995). Further, "Custody issues are resolved using a best interests analysis that gives weight to the factors set forth in N.J.S.A. 9:2-4(c)." Hand v. Hand, 391 N.J. Super. 102, 105, 917 A.2d 269 (App. Div. 2007). The Defendant claimed that the judge ignored his evidence and relied "primarily" on the report of a psychologist who was appointed to evaluate the case by the judge pursuant to Court Rule 5:3-3. The expert's report cited the Defendant's repeated belief that a person in China whom the Defendant was calling "Mawei" was directing witchcraft at the family which caused all of the problems between he and his wife and children. The expert recommended that the Plaintiff have custody of the children, subject to supervised parenting time with the Defendant. According to the Appellate Division, the judge did much more than simply rely on the report as a basis for his custody decision in that the judge addressed all of the relevant statutory factors in detail, as well as, cited to the testimony of the parties and making credibility determinations as a result. The Appellate Division affirmed the judge's decision finding no reason to disturb the ruling. 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, 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 of an attorney.

Party To Small Business Divorce Seeks Post-Judgment Modification

In Fiorenza v. Fiorenza, the Defendant appealed from the denial of a post-judgment Motion to modify his alimony obligation following a divorce including a small business. The Family Court judge initially ruled that alimony is not modifiable based upon anti-Lepis language in a negotiated Consent Order which set an amount below which the Defendant's alimony obligation could not be reduced. The parties in this case were married in 1986 and divorced in 2010. Three (3) children were born of the marriage. Only one child still remained at home at the time of the proceedings. During the marriage, the Defendant owned an MRI facility in addition to holding an interest in an accounting practice. The Defendant sold his interest in the MRI facility during the divorce because the business was failing. The marital settlement agreement (MSA) which was incorporated into the judgment of divorce directed that "the husband is self-employed and has average earnings of $250,000 per year" and the Plaintiff can reasonably earn "$25,000 per year." The parties agreed that in 2011 the Defendant would pay to the Plaintiff permanent alimony of $100,000 per year in monthly installments of $8,333. Within a few months the Defendant stopped paying support based upon his business suffering some financial hardships. The Plaintiff then petitioned the court to enforce the parties' agreement, resulting in Orders reducing the Defendant's six months' arrears and sending the parties to mediation. Mediation proved to be unsuccessful and the Defendant subsequently filed a Motion to reduce his support and the Plaintiff submitted a Cross-Motion to enforce litigant's rights. These Motions were resolved by the Consent Order that was at issue in the appeal. The exact provision at issue stated that "No matter defendant's annual gross income, at no time shall monthly support be lower than $5,000, except after the emancipation of [the parties' youngest child] when the child support component may be reduced . . . ." The Defendant then made $5,000 monthly payments to the Plaintiff for one year until he unilaterally reduced his payment to $2,000 and then the following month he paid nothing. The Plaintiff immediately moved to enforce the Consent Order to reinstate the support to $8,333, the amount negotiated in the MSA. The Defendant cross moved to reduce his alimony in accordance with Lepis v. Lepis, 83 N.J. 139 (1980) or Morris v. Morris, 263 N.J. Super 237 (App. Div. 1993). After hearing oral argument, the Family Court judge enforced the Consent Order holding the critical clause to operate as an anti-Lepis provision in accordance with the Morris decision. The judge noted that the Defendant did not dispute that both parties bargained for the agreement and each party got the expected benefit and burden of the contract. Although enforcing the Consent Order the judge ordered a plenary hearing to determine his ability to pay both alimony and arrears. After the hearing, the judge ordered the Defendant to pay $2,500 in alimony and child support with the difference between that sum and the required $8,333 under the agreement to accrue. Then the court ordered a nominal arrears payment of $100 per month. The Appellate Division affirmed the decision of the Family Court finding that the trial court was correct in holding that the parties had anticipated the decline in the Defendant's income when they negotiated the Consent Order and agreed that notwithstanding any such decline, his alimony obligation to the Plaintiff would never drop below $5,000 except upon the child's emancipation. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007). No explicit reference to Lepis was required. Savarese v. Corcoran, 311 N.J. Super. 240, 243 (Ch. Div. 1997). 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.

Motion For Alimony Reconsideration Not A Matter Of Right

In Ackerman v. Freitag, the Plaintiff appealed from a Court Order issued in 2014 that denied her unopposed Motion for reconsideration regarding her request for an award of alimony based upon changed circumstances and an increase in child support. The Appellate Court affirmed the decision of the Family Court in holding that a Motion for reconsideration is not a matter of right. The parties in this case divorced in 1999. At that time, they executed a property settlement agreement (PSA) that included a waiver of "any and all rights for alimony which either may have against the other, now and in the future." In 2012, the Plaintiff's license to practice medicine was suspended and she could no longer work in her field. She filed numerous Motions seeking relief based upon this life event and the negative financial impact that it had on her life. All requests for relief were denied. The judge based his denial on the fact that the medical board had concerns regarding the Plaintiff's mental health and required her to submit reports from mental health professionals attesting to her ability to continue to work. The Plaintiff failed to submit any documentation. Due to this, the judge ruled that the Plaintiff was voluntarily unemployed and denied her requests for relief. The Plaintiff then filed two subsequent Motions for reconsideration, both of which were denied for the same reasons. The Plaintiff appealed. According to the Appellate Division, the Orders that the Plaintiff appealed from sought reconsideration of prior Orders entered by the court. A Motion for reconsideration is governed by Court Rule 4:49-2 and is a matter to be exercised in the trial court's discretion. Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App Div.) certif. denied, 195 N.J. 521 (2008). It is not appropriate merely because a litigant is not happy with a decision of the court that he or she should be able to reargue a Motion, instead such relief "should be utilized only for those cases which fall into that narrow corridor 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." D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). The Appellate Division found that the Family Court judge provided thoughtful consideration to the Plaintiff's Motions and properly denied them. 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 or child support 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.