Equitable Distribution of Stock Options in Divorce

M.G. v. S.M. is a post-judgment divorce matter where the marital coverture share of a stock award vesting after the filing of the divorce complaint was sought by the Defendant. The parties married in 1998. Every August, from 2003 through 2010, the Plaintiff received a stock award from his employer which would vest in stages thereafter, beginning in 2011. On July 28, 2014, Plaintiff filed the divorce complaint. By that time, M.G. had been granted eight stock awards but only three had fully vested with the remainder to vest annually thereafter, each August. The company’s policy was reviewed and specifically stated that employees were granted stock to compensate them for long-term contributions to the company’s success and that the stock awards “represent the future right to receive shares…when a vesting requirement is satisfied.” According to the Plaintiff, the stock awards are a way for the employer to retain employees and give them reason to drive the stock higher through personal performance. Plaintiff did agree to share the vested stocks with the Defendant but maintained that any non-vested stock would vest only if he continued to perform at higher levels following the filing of the divorce complaint. The trial judge found that S.M. was entitled to one-half of all stocks awarded before or near the date of the complaint. In his opinion, the trial judge found Plaintiff to be credible and Defendant non-credible. In his written opinion, the judge went on to include that the stock awards of 2014 were based on the Plaintiff’s past performance, which was rendered during the marriage. The Plaintiff filed a motion for reconsideration with which he submitted documents from his employer spelling out the fact that post-award changes in employment status, hours, leaves, disability, and otherwise “shall” affect the employee’s rights in stock awards in support of his argument that the non-vested options did not belong, in part, to the Defendant. The motion was denied. Plaintiff appealed to the New Jersey Appellate Division. In Pascale v. Pascale, 140 N.J. 583 (1995) and Reinbold v. Reinbold, 311 N.J. Super. 460 (App. Div. 1998), the court held that options and other incentives earned during the marriage, even if distributed later, are subject to equitable distribution. The trial judge misapplied these cases to stock awards that would be earned after the marriage. In Slutsky v. Slutsky, 451 N.J. Super. 332, 344 (App. Div. 2017), the court held that “reversal is warranted when the trial court’s factual findings are ‘so manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice.” In Clark v. Clark, 429 N.J. Super. 61, 71 (App. Div. 2012), the court determined that a family judge has wide discretion in the distribution of assets which are subject to equitable distribution, however, in the within case, the trial judge’s findings were not supported by credible evidence and controlling legal principles pursuant to the terms of Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340, 354 (App. Div. 2009). In Pascale, the Supreme Court upheld its earlier decision from Landwehr v. Landwehr, 111 N.J. 491, 504 (1988), wherein the court held that when equitable distribution is sought for assets received post complaint, the touchstone becomes whether the asset was acquired as a result of efforts during the marriage, in which case the asset is subject to equitable distribution, or post-complaint in which case it belongs to the spouse who still must earn the asset. The N.J. Appellate Division panel determined that the trial judge was incorrect in his decision. The matter was reversed and remanded to the trial judge for findings pursuant to applicable case law and N.J.S.A. 2A:34-23.1. If you are considering divorce or have been served with divorce papers, you should consult with an experienced family law attorney in order to insure that your rights are protected. For more information about divorce, post-judgment motions, equitable distribution or other family law matters, visit DarlingFirm.com. To schedule a consultation, call us today at 973-584-6200. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Post Judgment Salary Jump for Wife

K.S. v D.J.S. is a post-judgment family matter. In November 2012, the parties divorced with a Marital Settlement Agreement (MSA). The Defendant acknowledged that after twenty-one years of marriage, the Plaintiff would need financial support and agreed to pay the amount of $3,400 monthly as support for the Plaintiff. The Defendant also agreed to pay one-third of any additional income over and above $139,000 to Plaintiff, to a maximum of $12,000 annually. The parties left the MSA open to modification by agreement of the parties or as permitted under the laws of the state of New Jersey. Plaintiff filed a motion to enforce litigant’s rights when the Defendant failed to comply with the terms of the MSA and the Plaintiff cross-moved for a reduction in alimony based upon “materially changed circumstances” which included the Plaintiff’s significantly changed earning capacity wherein she was making well over $100,000 and also more than Defendant made after his alimony was taken out of his income. The Defendant blamed the arrearages on the fact that his earning potential with his law firm had decreased and he was unable to meet his financial obligations without an alimony reduction. The court found nothing warranting a downward modification in alimony from the documents submitted by the Defendant. The court refused to grant the alimony modification and ordered the Defendant to pay all sums outstanding to Plaintiff. On appeal, the court found that the Defendant was a partner in the same law firm he had been with at the time of the divorce and his base salary had increased. The appellate division cited Lepis v. Lepis, 83 N.J. 139 (1980) and its progeny which dictate that alimony is based largely on the parties’ standard of living during the marriage and the fact that alimony modification may occur, under the factors of N.J.S.A. 2A:34-23, upon the demonstration of “changed circumstances.” The appellate division further cited to Crews v. Crews, 164 N.J. 11 (2000) regarding the changed circumstances significantly impairing the ability of the supporting spouse to maintain a reasonably comparable standard of living during the marriage and Stamberg v. Stamberg, 302 N.J. Super. 35 (App. Div. 1997) which sets forth the consideration of the significant improvement in the supported spouse’s economic situation. The appellate division also found that the court below made no findings as to the Plaintiff’s improved earning capacity and remanded for findings as to the Plaintiff’s independent financial circumstances. If you are considering filing a post-judgment motion, or your former spouse has done so, you should consult with an experienced family law attorney to learn your rights. For more information about divorce, alimony or post-judgment motions, visit DarlingFirm.com or, to schedule a consultation, call us now at 973-584-6200. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Party Chose to Ask Forgiveness Rather Than Permission to Relocate

In A.J. v. R.J., custody of the parties’ children was transferred to defendant upon plaintiff’s failure to comply with a prior order concerning plaintiff’s relocation with the children. The parties married in 2008, and divorced in 2013. Two children were born of the marriage. The parties divorced with a negotiated marital settlement agreement, rather than a trial, with defendant receiving parenting time every other weekend and one weeknight overnight. Plaintiff was a tenured teacher in Elizabeth and Defendant resided in Union. Post-judgment, Plaintiff remarried and had another child. Due to Plaintiff’s family growing, they moved to Mount Holly. Plaintiff failed to obtain permission, from the Defendant or the court, to move the children after the Defendant notified her that he did not wish for the children to live so far away. Upon learning of the move, the Defendant filed an order to show cause to modify the judgment as to custody and to prevent the Plaintiff’s relocation. The trial judge granted the Defendant parenting time three weekends each month. Thereafter, a plenary hearing occurred and the trial judge ordered Plaintiff to relocate within fifteen miles of Union prior to the beginning of the upcoming school year. In making his decision regarding the Plaintiff’s ability to relocate with the children, the trial judge relied upon the factors set forth in Baures v. Lewis, 167 N.J. 91 (2001). Plaintiff appealed, arguing that the judge applied the wrong standard in his determination of her ability to relocate and that he changed the terms of the partied MSA by including a fifteen-mile rule where the parties had none. With regard to the imposition of the fifteen-mile limitation, pursuant to Ridley v. Dennison, 298 N.J. Super. 373, 381 (app. Div. 1997), Rule 5:3-7 and Rule 1:10-3, the court may craft remedies or measures to facilitate enforcement in the event an order is violated. As to the Judge’s use of the Baures factors, Baures no longer applies when a court is addressing relocation; rather, the court must consider N.J.S.A. 9:2-4. As the motion judge did not apply the correct measure in sanctioning the plaintiff, the appellate division reversed and remanded. If you are planning to relocate and believe that it may affect your parenting time arrangement, or you are seeking to prevent your children's other parent from relocating, it is critical that you seek an experienced family law attorney to represent you as misapplication of law can cause disastrous results for you and your children. For more information about relocating with children, divorce, alimony, child support or other family matters, visit DarlingFirm.com. To schedule a consultation with an experienced family law attorney now, call 973-584-6200. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Pre-Marital Assets Comingled Become Joint Property

Andrew Flockhart v. Karen Flockhart was a divorce ending in a twelve day trial relating to alimony, custody, child support and equitable distribution. The parties married in 1995, had three children born in 1998, 2000 and 2004 and separated in 2012. The Plaintiff had a successful landscaping business that predated the marriage and owned his own home as well. The Defendant was employed and also helped the Plaintiff with his landscaping business prior to the birth of their first child. Thereafter, the Plaintiff stopped working until 2014 when she began working part-time. During the marriage, the Plaintiff sold his home and the parties upgraded through multiple residences and, in 1998, the Plaintiff sold his business and the parties formed an entity including property purchased with the proceeds of Plaintiff’s landscaping business in which they owned equal interests. The parties branched into other equally held businesses and real estate holding companies. Plaintiff also formed a business with his mother, in which she was a majority shareholder and to which she contributed $200,000. In 2012, the Plaintiff filed for divorce and the parties’ holdings were evaluated with valuations in the millions, although they were offset by significant outstanding mortgage balances. Plaintiff was granted sole legal custody of the sons with the Plaintiff having physical custody of the older son. The parties’ daughter was emancipated. The parties’ combined net income during the marriage exceeded $187,200 which would trigger certain child support guideline limits. Plaintiff was ordered to pay$224 weekly child support for the younger son and defendant was ordered to pay $380 per week in child support for the older son – a net weekly payment to Plaintiff from Defendant of $156 in child support. The court imputed Plaintiff income of $300,000 annually and Defendant was imputed income of $27,040 annually. Plaintiff was ordered to pay $2,500 weekly in alimony until the parties’ older son was emancipated and $1950 weekly thereafter for a total alimony period of seventeen years and five months, a duration equal to that of the marriage. In spite of the $275,000 disparity in their annual incomes, the alimony calculation left both Plaintiff and Defendant in the very similar position of falling slightly short of their post-marital monthly budgets of over $10,000 each. The court determined that the parties’ assets should be divided equally as they were amassed through joint efforts. The parties appealed as to several issues including alimony and equitable distribution. The result of the appeal was remand of the matter for a review of child support and some adjustments with regard to equitable distribution. There were no credits to the Plaintiff for the contribution of his premarital business for the growth of the marital enterprise, nor for the contribution of his premarital residence to the purchase of the successive marital residences. If you are considering divorce, it is imperative that you obtain the advice of an experienced family law attorney in order to insure that your rights are protected. For more information about divorce, alimony, child support or other family law matters, visit DarlingFirm.com or call 973-584-6200 today if you wish to consult with an experienced divorce lawyer. This blog is for informational purposes only and not intended to replace the advice of counsel.

PDAs And Living Together Does Not Show Cohabitation

In Wood v. Wood, Alan Wood sought to terminate his alimony obligation to Wendy Wood, pursuant to the terms of their property settlement agreement (PSA), based on her cohabitation with another man. The parties were married from 1993 until 2016 and two daughters were born of the marriage. Under the terms of the PSA, the Defendant, Alan Wood, was to pay the Plaintiff alimony of $525 weekly for a term of 10 years following the date of the parties’ divorce but could be modified or terminated, pursuant to N.J.S.A. 2A:34-25, in the event that the wife cohabited. The Defendant hired a private investigator to confirm that the Plaintiff was cohabiting with her boyfriend, K.C. The private investigator claimed that the boyfriend was at the Plaintiff’s residence 14 out of 15 non-consecutive dates at varying times of the day. Additionally, K.C.’s name was associated with both the marital residence, foreclosed upon following the parties’ divorce, and the Plaintiff’s current residence. K.C. used the Plaintiff’s address on his driver’s license and voter registration. On the various visits, K.C. was observed using keys to the residence, keys to the locked mailbox and kissing the Plaintiff. The private investigator opined the K.C. and the Plaintiff were permanently cohabiting together in a romantic relationship. In addition to a cross-motion, Plaintiff responded that K.C. was a roommate necessitated by her multiple disabilities which prevented her from working and for which she had not yet received any disability benefits. Plaintiff indicated that she could not qualify for a rental on her own as she did not have sufficient income. Plaintiff testified that she and K.C. each paid for their own expenses including groceries, rent and utilities and that they had separate rooms and baths. To further her position, the Plaintiff testified that, when she had brain surgery, her family and friends cared for her, not K.C., and that she and K.C. did not socialize together. Plaintiff also offered certifications from family members, a copy of the condominium lease and a letter from her doctor corroborating her position. The Defendant offered the private investigator’s report of K.C. and Plaintiff kissing, K.C. accompanying Plaintiff to Robert Wood Johnson Hospital and the fact that the parties’ children have advised him of the longtime romantic relationship between K.C. and Plaintiff and the fact that, as long ago as his final walk through at the marital residence preceding foreclosure, the Defendant observed men’s clothing that did not belong to him comingled with the Plaintiff’s clothing. Defendant further contended that the Plaintiff and K.C. were in fact co-lessees per the evidence Plaintiff provided. Plaintiff’s response was to deny kissing K.C., admit he drove her to the hospital on a single occasion, deny the presence of men’s clothing with her own and to acknowledge that she did rent a room to K.C. in the marital residence, prior to foreclosure thereupon, in order to obtain money for utility payments. The judge below denied Defendant’s motion finding that, absent a prima facie showing of changed circumstances, the court could order further discovery under Lepis v. Lepis, 83 N.J. 139 (1980) and Crews v. Crews, 164 N.J. 11 (2000) but, absent a prima facie showing of changed circumstances, it was inappropriate for the court to order additional discovery of a parties’ financial status. The judge included that a finding of cohabitation required a finding that the cohabitation include the kind of mutual support and intimacy commonly associated with a marital relationship, pursuant to Konzelman v. Konzelman, 158 N.J. 185, (1999), and concluded that the proof offered by the Defendant was not enough to substantiate such a belief. Defendant appealed arguing that the Plaintiff’s living with someone else was enough that he should have opportunity to obtain her basic financial information and also argued that genuine issues of material fact existed. The N.J. Appellate Division affirmed based on the record below and also cited to Gayet v. Gayet, 92 N.J. 149 (1983) and Ozolins v. Ozolins, 308 N.J. Super. 243 (App. Div, 1998) collectively holding that a prima facie case of cohabitation in a relationship equivalent to that of a marriage is required in order to obtain mutual discovery and only after such prime facie showing is made will the dependent spouse be required to defend the continuing need for alimony. If you are seeking to stop paying alimony based on cohabitation or to defend your alimony when cohabitation has been falsely alleged, call The Darling Law Firm, LLC now at 973-584-6200. For more information about alimony, cohabitation, divorce or other family law matters, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of counsel.

Police Officer Loses Weapons After Wife Refuses to Testify Against Him

J.C.H was a police officer and this matter arose under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 – 35. His wife, Grace, called 911 and when police arrived she indicated that she was injured in an altercation with J.C.H. when she tried to stop him from leaving the house after he took pills, drank a bottle of alcohol and put a gun to his own head and threatening to kill himself. Grace fell from the car she had climbed atop in an effort to prevent J.C.H. from leaving and was injured in the fall. Grace did not seek a temporary restraining order (TRO). According to the wife, there were 9 prior domestic violence incidents and threats to her life by J.C.H. with the assault as the predicate act under the PDVA in the instant case. As a result of the 911 call, 34 firearms were seized from J.C.H.’s residence. Grace refused to testify about the simple assault, N.J.S.A. 2C:12-1(a)(1), and assault by auto, N.J.S.A. 2C:123-1(c)(1) and the charges were dismissed. J.C.H. was placed on administrative leave until he could undergo and pass a fitness-for-duty exam. The State sought forfeiture of J.C.H.’s firearms and firearms purchaser identification card, In the Matter of Weapons Seized Pursuant to the Prevention of Domestic Violence Act from J.C.H. The fitness for duty examination determined that J.C.H. was unfit for duty. At the forfeiture hearing, the examining doctor indicated that the fitness for duty examination also determined that J.C.H. should not have access to guns. In 2013, J.C.H. had also been placed on administrative duty after Grace posted on social media about his alcohol, anger and emotional issues. On that occasion, J.C.H. had been found fit for duty and marriage counseling was suggested. The State presented evidence that J.C.H. is a habitual drunkard and unfit to possess weapons. J.C.H. presented expert testimony that alcohol and other issues could be present but that he was sober and had maintained the sobriety for nine months leading up to the hearing. The judge determined that, as J.C.H. was receiving psychiatric counseling, had maintained sobriety for nine months prior to the trial and had never consumed alcohol on duty, he could not be found unfit for duty under N.J.S.A. 2C:58-3(c). Additionally, the judge determined that the State failed to prove that returning J.C.H.’s weapons would be a danger to the public. The State’s motion for forfeiture of J.C.H.’s firearms and firearms purchaser identification card was denied. The State appealed the forfeiture and the appellate division held that the seizure of weapons and firearms identification cards permitted under N.J.S.A. 2C:25-21(d) supports the intent of the drafters of the PDVA, to protect victims of domestic violence. However, the State does carry the burden of proof to demonstrate that the forfeiture is legally permissible. State v. Cordoma, 372 N.J. Super. 524, 533 (App. Div. 2004). In light of the long and history of J.C.H.’s drinking in excess, the Appellate Division determined that a seven month span of sobriety was not enough to erase years of habitual drunkenness as described under N.J.S.A. 2C:58-3(c). The appellate division determined that forfeiture of the weapons of J.C.H. was both appropriate and necessary in the within matter. If you are facing domestic violence charges, or are seeking a restraining order, call The Darling Law Firm, LLC now at 973-584-6200 to protect your rights. If you are interested in learning more about restraining orders or the Prevention of Domestic Violence Act, visit DarlingFirm.com for additional information. This blog is for informational purposes only and not intended to replace the advice of counsel.

Interference With Religious Upbringing?

Michelle Dilisa and Gioacchino Dilisi divorced in 2014 with a matrimonial settlement agreement (MSA) in place. The MSA provided for the children to be raised in the Roman Catholic faith. The MSA also called for shared custody with the Plaintiff, Michelle, as parent of primary residence. At the time of the parties’ divorce, their daughters were ten and eleven years old with both having been baptized and received their first communion with the older daughter preparing for confirmation but the Defendant did bring the girls with him to a non-denominational church at that time as well. In January 2018, the Defendant sought the Plaintiff’s permission to take the girls on vacation but no response was forthcoming and Defendant was left to file a motion in that regard. Plaintiff cross-moved with twenty-one items for which she sought relief, including the preclusion of Defendant from taking the girls to a church other than a Roman Catholic Church, which the judge granted. The Defendant appealed on the grounds that his taking the children to a non-denominational church did not violate the parties’ agreement that the children would be raised in the Catholic faith. The Defendant’s argument was based on the lack of constitutionality of the motion judge’s decision. On appeal, the court determined that the custodial parent has the right to determine the religious upbringing of the children in the absence of a “contractual mandate” to the contrary pursuant to Feldman v. Feldman, 378 N.J. Super. 83, 91 (App. Div. 2005). However, the court also held that there is no preclusion for non-custodial parents taking their children to other religious services during their parenting time and such a bar would be violative of said parent’s rights. Feldman, 378 N.J. Super. at 96. A “judicial decision that compels or prohibits an act is ‘state action’ and such state action by a court cannot transgress constitutional protections.” Brown v. Szakal, 212 N.J. Super 136, 139 (Ch. Div. 1986). Therefore, if the Defendant’s choice to bring the children to a non-denominational church where he chooses to worship does not interfere with the children’s Roman Catholic upbringing, to prevent him from doing so would violate the Defendant’s religious freedom. The N.J. Appellate Division reversed. If you are considering divorce or have been served with divorce papers, call The Darling Law Firm, LLC at 973-584-6200 to insure your rights are protected. For more information about divorce, custody, alimony or other family law matters, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

NJ Restraining Order Against VA Man Is Valid

L.D.L. sought a final restraining order, pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, against D.J.L. in New Jersey immediately upon her return from Virginia, where an incident occurred. The parties resided in Virginia since they were first married there. When the parties divorced, the Plaintiff moved to New Jersey. While Plaintiff was in Virginia thereafter, the defendant chased her car with his, bumping it repeatedly at a light then proceeded to exit his vehicle and bang on the Plaintiff’s car window and threatening to kill her. The light changed and Defendant continued pursuit for approximately 20-30 minutes. Later the Defendant left Plaintiff a voicemail including “Hey, had a great time this morning. Can’t wait to do it again. See you soon….” Later that night, the Plaintiff called Defendant at his request and, when Plaintiff wanted to terminate the call, the Defendant said “I’ll see you soon.” Based on the car chase, the phone contact, and claims of Defendant’s past abuse and PTSD, Plaintiff sought a final restraining order. On the hearing date, both parties appeared without counsel and were advised of their right to an adjournment to seek counsel. Each agreed to proceed and to do so without counsel. This constituted the Defendant’s submission to personal jurisdiction in New Jersey. Additionally, testimony showed that Defendant had called Plaintiff in New Jersey by voicemail and telephone, conferring jurisdiction by establishing the minimum contacts required to establish personal jurisdiction. The court found that the Plaintiff had proven that the Defendant had made a terroristic threat, in violation of N.J.S.A. 2C:12-2, and did harass the Plaintiff in violation of N.J.S.A. 2C:33-4. Finally, the court found that the Plaintiff did need the protection of a FRO. The Defendant appealed, challenging that the New Jersey court did not have jurisdiction over him but without challenge to the factual basis. The N.J. Appellate Division upheld the decision of the court below as to jurisdiction and affirmed. If you are in need of a final restraining order, or in need of defense against a FRO, contact The Darling Law Firm, LLC at 973-584-6200. For more information about restraining orders, domestic violence or other family law matters, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Child Support Modification Was Intended to Benefit Defendant

Ianniello v. Pizzo involved a motion to modify child support following a high-net worth divorce. Pizzo, remarried with another child from the second marriage, sought to increase Ianniello’s monthly child support payment to her from $10,000 to $75,000 per month when Plaintiff’s income increased. Pizzo and Ianniello were married in 2000. Two sons were born of the marriage in 2004 and 2008. In April 2011, the parties divorced with a marital settlement agreement providing for a $5.5 million equitable distribution to Pizzo from Ianniello’s stock options, $10,000 per month for six years in limited durational alimony and an additional $10,000 per month in child support. Defendant is a homemaker with no employment outside of the home. Plaintiff, also remarried, is an executive in a large corporation wherein his annual income fluctuates between $14 and $31 million annually plus benefits. Plaintiff argued that the $10,000 in monthly child support more than provided for the needs of the children and that the Defendant’s request was made just as her alimony was about to end in an effort to improve her own lifestyle, not that of the children as the expenses of a 10 and 13 year old did not amount to $900,000 annually. The court ordered Defendant to file a budget as per Walton v. Wisgil, 248 N.J. Super. 642 (App. Div. 1991). The court found Defendant’s budget to be more of a wish-list of extravagances which would mainly benefit the Defendant. Pursuant to the factors of N.J.S.A. 2A:34-23(a), the court noted that the child support guidelines called for $508 each week in child support which was stepped up substantially already to account for the parties’ incomes and the children want for nothing. Pursuant to the child support guidelines, if the combined net income of the parents is greater than $187,200 per annum, the court shall supplement child support with a discretionary amount based on the actual family income and the factors of N.J.S.A. 2A:34-23. The children vacation four times annually with their families, attend sports camps, enjoy country club memberships and live in luxurious residences. Additionally, the Plaintiff agreed to pay for the children's private school costs, college expenses and extracurricular activities. The court denied the Defendant’s request to modify child support and the N.J. Appellate Division affirmed. For more information on high net worth divorce, alimony, child support, or other family law matters, visit DarlingFirm.com or call 973-584-6200 to schedule a consultation and protect your rights. This blog is for informational purposes only and not intended to replace the advice of counsel.

No Reasonable Fear Means No FRO

K.M. v. M.D. involved a Final Restraining Order (“FRO”) sought by the Plaintiff after the Defendant, Plaintiff’s estranged Wife placed a GPS tracking device on his vehicle and showed up at his residence several times without his knowledge. The matter was heard in the Superior Curt of New Jersey, Essex County. After testimony was presented, the trial judge determined that the placing of a GPS device on the Plaintiff’s vehicle did constitute the predicate criminal act of stalking N.J.S.A. 2C:12-10. Under the Prevention of Domestic Violence Ace (“PVDA”), N.J.S.A. 2C:25-19(a), in order to establish a claim under the act, the alleged actor must have committed one of certain enumerated acts, stalking being one of said qualifying acts. Additionally, in order to give rise to a final restraining order, the Plaintiff must demonstrate an actual fear and that the order is necessary to prevent harm to the Plaintiff at the hands of the Defendant. Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006). The parties had a 10 year marriage, during which one child was born and which ended in a contentious divorce. The Defendant admitted placing the GPS device on the husband’s vehicle but indicated that it was only for the purpose of knowing her daughter’s whereabouts during parenting time with the Plaintiff. However, Plaintiff recounted multiple specific incidents in which the Wife would send photos of his car in specific locations minutes after he left the locations, would call others asking what the Plaintiff and child had been doing there, send text messages admonishing him regarding his whereabouts and the like. Plaintiff indicated that the messages were alarming and he went to his wireless provider and phone manufacturer to determine whether there was something in his phone that was enabling the Defendant to track him. Plaintiff testified that the Wife’s behavior was impacting his life, relationship with his children and his sleep and he also testified to prior acts of physical violence by the Defendant. The Defendant indicated that a hurricane force wind cause the Plaintiff’s truck door to slam on his foot and that she had no involvement in the incident. Defendant further indicated that the Plaintiff had previously driven his vehicle, with their daughter as a passenger, after he had consumed alcoholic beverages. The trial judge held that significant evidence was missing including any of the alleged alarming texts from the Defendant to Plaintiff and any medical testimony indicating his sleep was impacted by the Defendant’s behavior. After hearing testimony from both parties, the trial judge determined that although the Defendant had clearly been stalking the Plaintiff, there was no history of domestic violence between the parties and a final restraining order was not needed for the Plaintiff’s safety. The trial judge dismissed the Plaintiff’s request for a final restraining order and the underlying temporary restraining order (“TRO”) was dissolved. The Plaintiff appealed and the Appellate Division affirmed the decision of the court below. If you are facing or seeking a final restraining order, call The Darling Law Firm, LLC at 973-584-6200 to obtain the results you seek. For more information about restraining orders, divorce or other family law matters, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Child’s Need For Safety Trumps Parental Rights

Parents living in a hotel room with their children were charged with abuse and neglect for allowing the father, a Megan’s Law offender, unsupervised contact with the children, failure to immunize the children and failing to provide appropriate sleeping arrangements for the children. In New Jersey Div. of Child Prot. And Permanency v. J.B., the division learned that the mother, J.B., left the children alone with the father, C.R., who was prohibited from staying in a location where a minor was present without approval and subject to community supervision for life for Megan’s Law offenses involving the father’s 7 year old child and the mother’s older children from a prior relationship. The division filed for custody, care and supervision of the children under N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12. The referrant advised the division that the mother had recently given birth to a son after she had carried with no prenatal care and that the parents did not want to leave the infant at the hospital for a 48 hour monitoring period after birth, which the doctors believed prudent in light of the fact that the mother had no prenatal care. Also included in the complaint was the fact that the children did not have adequate sleeping accommodations and seeking to provide immunizations to the children. The daughter was 2 years and 9 months old and had been sharing a bed with the parents. The Defendants ultimately stipulated to abuse and neglect after the Superior Court judge granted the division custody but the parents denied the division approval to immunize the children. Once the parents stipulated to abuse, the division moved again to immunize the children over the parents’ objections on religious grounds and the trial court found in favor of the division over the parents. The parents appealed the decision of the Superior Court judge to permit the division to immunize the children in spite of the Defendants’ objections on religious grounds. Although the parents objections to immunization fit squarely into one of two permissible objections, religious or medical, the N.J. Appellate Division cited In re Guardianship of J.C., 129 N.J. 1, 9-10 (1992), acknowledging a parent’s constitutionally protected rights to raise their children, even if those children are in foster care. The N.J. Appellate Division then cited In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999) in holding that the parents rights are superseded by the children’s safety and that the court has the ultimate authority to protect children in the event that they are in danger. The decision below was affirmed. For more information about parenting time, custody or other matters pertaining to parental rights visit DarlingFirm.com or call 973-584-6200 now to schedule a consultation. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Emancipation Abides The Jurisdiction At The Time Of Application

Lawson Scott Glassergreen sought to have his oldest child emancipated. Although Amy Glasser and Glassergreen were married in New Jersey, they divorced in Colorado. Plaintiff, Glasser, resides in New Jersey and the Defendant resides in Kentucky. Their oldest child attends an out-of-state Ivy League university and the youngest attends vocational school in Arizona and both reside with the Plaintiff when they are not in school. Defendant moved, in the New Jersey Superior Court, to have the parties’ oldest child emancipated. The parties Colorado Order which established the Defendant’s support obligations was registered in New Jersey. The Defendant argued that Colorado law requires emancipation at the age of 19 but the Superior Court of New Jersey obtained modification and enforcement jurisdiction over the matter in 2007 and, therefore, the age of emancipation is dictated by the laws of New Jersey. The Appellate Division affirmed the denial of the Defendant’s Motion. If you are seeking the emancipation of a child, or trying to prevent the premature emancipation of a child, you should seek an experienced family law attorney to assist you in your matter. The laws are subject to change and there are many nuances easily overlooked when researching the matter. For more information on emancipation or other family law matters, visit DarlingFirm.com or call 973-584-6200 now to learn your rights. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Alimony Suspended While Wife is Ward of The State

In M.J. v. K.J., Plaintiff with significant mental health issues sought to reinstate alimony retroactively while still under state supervision after commitment to a state mental health facility. Plaintiff and Defendant married in 1989 and had three children. Over time, Plaintiff became increasingly non-compliant with prescription medication for mental health issues. In 2009, Plaintiff attempted suicide and was admitted to a mental health facility and diagnosed as having bipolar disorder. Plaintiff’s failure to take her medication resulted in increasingly inappropriate behavior including stalking her chiropractor, for which she was ultimately incarcerated and an order of protection was issued against her. In 2009, Plaintiff filed for divorce and the parties entered into a consent order giving Defendant and the children exclusive possession of the marital home. Plaintiff broke in and, upon arrest, was admitted to a mental health facility. Plaintiff violated a TRP the Defendant obtained and continued to harass the Defendant throughout the divorce proceedings. The divorce called for the Plaintiff to have supervised parenting time with the parties’ youngest child and the two older children would make their own decisions with regard to visitation. Defendant was required to pay Plaintiff $2,000 monthly until either party’s death, Plaintiff’s remarriage or co-habitation with an unrelated adult or Defendant’s retirement. The Plaintiff continued to violate the FRO and was sentenced to 180 days incarceration during which Defendant’s alimony obligation was suspended for as long as Plaintiff was incarcerated or institutionalized. Plaintiff was released and reoffended by violating the restraining order multiple times with the last event occurring when Plaintiff appeared at Defendant’s workplace and pointed what appeared to be a semi-automatic handgun at him. He ran off calling the police as he fled and police found Plaintiff with what turned out to be an unloaded BB gun made to look real. Plaintiff was taken to the hospital and then incarcerated. The court ordered alimony suspended for the duration of the incarceration stemming from the fake handgun incident. Plaintiff was ultimately acquitted by reason of insanity and placed in Greystone Park Psychiatric Hospital. Per State v. Krol, 68 N.J. 236 (1975), the court found that it was a matter of fundamental fairness to suspend the alimony payments of Defendant indefinitely, without accrual of arrears, as the Plaintiff was a ward of the State. In light of the egregious effect that Plaintiff’s actions had on the Defendant, the court did indicate that, upon the Plaintiff’s release from Greystone, the Defendant could petition the court for termination of alimony obligation. Further, the court denied the Plaintiff’s motion to modify the FRO permitting her to communicate with her children. Upon Plaintiff’s release from Greystone, she remained under the court’s jurisdiction with the requirements that she attend treatment and take her medication. Plaintiff again sought modification of the FRO to allow for parenting time and to reinstate the alimony obligation. The court held that, as the State was meeting her needs, it would be inequitable for the Defendant to pay alimony. On Plaintiff’s appeal, the appellate division affirmed indicating that the FRO was not properly placed before them and the Plaintiff had no need for alimony as the State continued to meet her financial needs. If you have a family law matter or are looking to modify an existing alimony order, you should seek an experienced family law attorney. To learn about your rights in a particular situation, visit DarlingFirm.com or call 973-584-6200 now to schedule a consultaion. This blog is for informational purposes only and not intended to replace the advice of an attorney.

FRO Issues After Terroristic Threats In Courthouse

A.M.C. v. A.M.A. involved a Final Restraining Order (FRO) between unmarried parties with a 13 year old son in common. As the parties had a relationship at one time, the matter fell within the Prevention of Domestic Violence Act (PVDA) (N.J.S.A. 2C:25-17 to -35). There was a substantial amount of litigation between the parties and a court proceeding in that matter took place wherein it was decided that the parties would participate in reunification therapy for the child and Defendant to rebuild their relationship. Immediately thereafter, the Defendant is reported to have shouted vindictive statements at the Plaintiff and threatened that he would kill her. The Plaintiff sought a temporary restraining order (TRO) which was granted that day. The TRO complaint alleged harassment (N.J.S.A. 2C:33-4) and terroristic threats (N.J.S.A. 2C:12-3). On March 15, 2018, a FRO was entered by the Family Part judge after testimony was presented by both parties including testimony about past physical abuse and verbal abuse by Defendant against Plaintiff. The Family Part judge found the Plaintiff to be credible in her testimony and refused to accept the Defendant’s proffer that the Plaintiff only filed the domestic violence complaint to gain an advantage in the ongoing custody battle. The Defendant also included that the parties live an hour apart and the Plaintiff has sole custody of the child as a reason that a FRO was unnecessary but the court felt that the Plaintiff had a reasonable fear of the Defendant. It was on the grounds of distance and the fact that the parties have no ongoing relationship that the Defendant appealed. The Appellate Division looked to the two-part analysis required under the PVDA pursuant to Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006). First, the Plaintiff must prove, by a preponderance of the evidence, that at least one of the predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred. In this case, the act was harassment. Second, the court must find that a restraining order is necessary to protect the victim based on the factors included in N.J.S.A. 2C:25-29(a)(1) to – 29(a)(6). The Appellate Division determined that, although the parties were separated by some distance, they would be interacting as a result of the reunification therapy and protection was reasonable. The Appellate Division affirmed. If you are in fear and seeking a restraining order or defending against one, you should speak to an experienced attorney to determine what your rights are under the PVDA and whether you are likely to succeed in your case. To learn more about restraining orders visit DarlingFirm.com or for representation now, call us at 973-584-6200 to schedule a consultation. This blog is for informational purposes only and not intended to replace the advice of an attorney.

The Parties' Own Knowing Agreement, Absent Fraud, Prevails In Emancipation

In Longer v. Nace, Robert Nace sought to emancipate the parties’ daughter, as the parties’ separation agreement entered at the time of their divorce, defined emancipation as attaining the age of 18 years or completing college. Plaintiff, Nina Longer, opposed the motion based on N.J.S.A. 2A:17-56.67 providing for child support until the age of 23 years. The daughter was enrolled full-time in a master’s degree program and living at home at the time. Plaintiff was not seeking contribution to the daughter’s tuition, only that child support continue. Under Newburgh v. Arrigo, 88 N.J. 529 (1982) the court denied the motion for emancipation. Robert Nace and Nina Longer divorced in 2002 with a property settlement agreement after eleven years of marriage. The children were ten and seven at the time of the divorce. The parties agreed to share equally the cost of all post-secondary education for the children. The parties further agreed that child support would terminate upon each child’s attaining the age of 18 years or completing college, the last of which occurs. The parties shared the costs of college for the children and the Defendant moved to emancipate the daughter upon her completing college, in accordance with the property settlement agreement. On appeal, the appellate division determined that the court below failed to properly apply Newburgh, which is to be applied only when tuition for the child is being sought and that the court should have enforced the property settlement agreement that the parties knowingly and voluntarily entered into which, on its face did not have any appearance of impropriety and therefore reversed the decision of the trial court with regard to the motion. If you are interested in emancipating a minor or preventing a minor from being emancipated early, visit DarlingFirm.com or call 973-584-6200 now to schedule a consultation. This blog is for informational purposes and not intended to replace the advice of counsel.

Final Restraining Order Issues Upon Multiple Acts of Harassment

C.L.H. v. T.F.H. is about Defendant’s appeal of a final restraining order (FRO) entered against him upon his estranged wife’s request that the Court enter and order for same under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Defendant appealed on four points: (1) Ineffective assistance of counsel; (2) allegations of trial court error in allowing “authentication” of a perceived no contact order; (3) a conflict between testimony and the checked “No previous acts of Domestic Violence” section; and (4) lack of evidence regarding intent or predicate acts. Under the PDVA, Plaintiff was entitled to protections, as long as the other criteria were met, based on her marriage to the Defendant. The remaining criteria, set forth in Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), were also satisfied. First, the evidence demonstrated, by the requisite preponderance of the evidence standard, three acts that constituted harassment, N.J.S.A. 2C:33-4(c), a predicate act under N.J.S.A. 2C:25-19(a). Specifically, (1) the Defendant entered Plaintiff’s car while she was in church and removed an item; (2) the Defendant sent Plaintiff a text asking when she would return from a trip that he had never been notified she was taking; and (3) discovered and drove to the location Plaintiff was staying to see whether she was there. During questioning in this regard, the trial judge found the Defendant’s explanations to amount to admissions of guilt committed with the clear intent to harass the Plaintiff. With regard to the second prong of Silver, the trial judge determined that, in light of confrontations between the parties, the Plaintiff’s fear of the Defendant was reasonable and a FRO was required to protect the Plaintiff from the Defendant. The Appellate Division determined the trial judge exercised sound discretion in rendering the opinion below and affirmed, also noting that ineffective assistance of counsel is inapplicable to the matter at hand. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Grandparents' Rights Follow Specific Facts

In the grandparent rights case of C.C. v. M.H., Plaintiffs C.C. and D.C. sought visitation under the Grandparent Visitation Act, N.J.S.A. 9:2-7.1.2. The Plaintiffs based their case on the claim they were “psychological parents” to their grandchildren. Defendants have two children, ages 2 and 3. In 2013, Plaintiffs began caring for their grandchildren two days per week and they were being cared for by a nanny, and later in pre-school, three days per week. The parties dispute whether the Plaintiffs contributed some financial support to the grandchildren but do not dispute that Plaintiffs took the entire family on a vacation to Disney World. During the vacation, Plaintiffs and Defendants had a serious falling out over M.H.’s relationship with S.H. Thereafter, the grandchildren were enrolled in full-time pre-school and the Defendants relocated to a new community which Plaintiffs considered too far to visit. By September 2016, there was no contact between the Plaintiffs and grandchildren. The Plaintiffs complaint for visitation included that they “enjoyed a loving and caring relationship with their grandchildren since their birth on a daily basis”, “seeing them multiple times per week”, overnights as needed when the Defendants wanted to go out, family vacations and the like. Plaintiffs also contended that it would be likely the children would suffer irreparable harm if contact between the grandchildren and Plaintiffs was not restored. In support of their argument, Grandparents submitted a report from a psychologist that never met the grandchildren which provided generalizations in favor of the Plaintiffs’ case. Defendants filed replies and a cross-motion for restraints to keep the Plaintiffs away from the children. Defendants described the way Plaintiffs would start arguments with the Defendants in front of the children and the fact that the Defendants feared that the children would be exposed to similar treatment. The Defendants greatly disputed the amount of time with and care from the Plaintiffs. Defendants also filed a statement from M.H.’s sister indicating the Plaintiffs were often verbally abusive to family members and went for extended periods of time without seeing members of the family for that reason. The trial court determined that the grandparents failed to meet the burden of demonstrating that the children would suffer harm without the visitation and denied the grandparents relief, specifically because the grandparents did not indicate that they lived with the children. Plaintiffs appealed. The appellate division determined that Plaintiffs failed to establish “concrete harm” as set forth in Daniels v. Daniels, 381 N.J. Super. 286, 294 (App. Div. 2005). Further, pursuant to Morairty v. Bradt, 177 N.J. 84, 103 (2003), there is a fundamental right to parental autonomy in decisions affecting the “care, custody and control” of one’s own children which right shall yield only to a compelling state interest. Finding that the trial judge correctly decided that the Plaintiffs did not meet the burden of demonstrating irreparable harm, the appellate division affirmed the decision of the court below. If you are a grandparent seeking to obtain visitation or a parent fighting to prevent grandparent visitation, you should discuss your case with an experienced family law attorney in order to learn your rights. For more information about custody or grandparent visitation, visit DarlingFirm.com or call 973-584-6200 now to set up a consultation. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Psychological Parent Seeks Rights

In A.O. v. N.D., the court determined whether the plaintiff, designated the "psychological parent" of defendant's biological child was entitled to a plenary hearing with regard to an alleged agreement granting joint custody and ordering the parties to attend co-parenting therapy. The parties and the child lived together until the child was four. Plaintiff sought parenting time, custody and a designation as the child's psychological parent and the parties agreed in some regard. The parties agreed to designate an expert to produce a parenting schedule but there was continued conflict in regard to the parenting issue and plaintiff sought joint legal custody and mandatory co-parenting therapy. Defendant refused to sign a consent order giving effect to plaintiff's wishes. Plaintiff filed an application to enforce the unsigned consent order or for the court to order the same relief plaintiff sought in the consent order and defendant opposed. Defendant also acknowledged making his fiancee', not the plaintiff, the child's emergency contact. The judge denied the plaintiff's motion to enforce an unsigned consent order or grant a plenary hearing in light of the lack of evidence an agreement had been reached. The judge found no change in circumstances on which to grant plaintiff's relied but did order the parties to attend a co-parenting class. Plaintiff appealed, arguing the court erred in failing to order a plenary hearing to determine whether a verbal agreement had been reached. The NJ Appellate Division cited to numerous cases in rendering their judgment that the party seeking to enforce an agreement bears the burden of first showing some evidence of the existence of an agreement. The Appellate Division determined that, as per Harrington v. Harrington, 281 N.J. Super. 39 (1995), the agreement need not be reduced to writing to be enforceable. However, the Appellate Division also cited to the fact that an attorney's negotiations are not binding on a client unless the attorney has specific or apparent authority to enter into the settlement. U.S. Plywood Corp. v. Neidlinger, 41 N.J. 66 (1963). No matter the representations of defendant's counsel during negotiations, defendant's refusal to sign was evidence that an agreement did not exist. A designation as "pyschological parent" does not necessarily afford one the rights of a biological parent. Psychological parent is term used in many matters, from the case at hand to same-sex relationships where the non-biological parent failed to adopt to grandparents rights. If you are seeking, or trying to prevent, a designation of "psychological parent", it is critical that you obtain the advice of counsel. For more information about custody, parenting time, child support or other issues relative to children, visit DarlingFirm.com or call to schedule a consultation. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Contributing to Your Children's Education

In Fanelli v. Hnatowski, Plaintiff Daria Fanelli filed a post-judgment motion seeking contribution from her former husband, Kenneth Hnatowski, for 50% of their two children’s private school tuition as was agreed upon in the parties’ property settlement agreement. Fanelli paid the tuition for both children for 9 years without contribution by the Defendant. The parties divorced in 2005 and Plaintiff was the primary caregiver to the children, ages 15 and 16 at the time of the post-judgment motion. At the time of their divorce, the parties entered into a property settlement agreement containing, among other things, that each would pay 50% of the children’s school costs. The children have attended private school since kindergarten. In 2016, the Plaintiff sought a contribution from the Defendant in the amount of 50% of the children’s tuition or a contribution in proportion to the parties’ respective incomes. The Union County Family Part judge hearing the matter ordered the Defendant to pay 50% of the children’s tuition and Defendant appealed on the grounds that the Plaintiff’s failure to seek contribution for 9 years barred her from doing so and that the term “school costs” does not mean tuition. The Defendant directed the court to Hoefers v. Jones, 288 N.J. Super. 590, 611-12 (Ch. Div. 1994), aff’d, 288 N.J. Super. 478 (App. Div. 1996) which sets forth 14 enumerated factors which the court must evaluate when ordering payment. The factors include the ability of parents to pay, the continuity of the children’s education, the contemplation that they would participate in the program for which contribution is sought, whether enrollment was reasonable, the benefit to the child of the program, whether the party enrolling the child had the right to do so, the child’s best interests and other factors. The NJ Appellate Division held that the term “school costs” was not ambiguous and that the Defendant was required to contribute to the children’s tuition under the parties’ agreement. Thereafter, the appellate division stressed the importance of upholding resolutions negotiated by the parties in citing to Quinn v. Quinn, 225 N.J. 34, 44 (2016), Konzelman v. Konzelman, 158 N.J. 185, 193-94 (1999). The trial court determined that Defendant’s failure to object to the children’s attendance in private school for 9 years operated as implied consent. On appeal, the court found the issue of consent to be of no consequence as the Plaintiff was not seeking contribution for the 9 prior years of private school tuition and the Defendant did not seek relief compelling the children to attend public school. If you need post-judgment relief to enforce litigant’s rights in a family law case, please visit DarlingFirm.com for more information or call us now at 973-584-6200 to schedule a consultation. This blog is for informational purposes only and not intended to replace the advice of counsel.

Final Restraining Order Trial Requires Opportunity to Cross-Examine

V.M. v. A.M., involved petition for a Final Restraining Order (FRO), under the Prevention of Domestic Violence act (N.J.S.A. 2C:25-17 to -35), based on an amended Temporary Restraining Order (TRO). Plaintiff initially claimed her husband committed the crimes of sexual assault, harassment and stalking against her but then dismissed all but the sexual assault claims prior to the parties' hearing. Both parties offered testimony but the court gave neither the opportunity to cross-examine the other. While the plaintiff claimed sexual assault, the defendant maintained that the parties had consensual sex multiple times over the course of the weekend in question in spite of ongoing marital difficulties. The trial judge's ruling found both parties credible but found that the plaintiff failed to prove her allegations by a preponderance of the evidence. Plaintiff appealed on the basis that the judge must find one party credible and the other not credible, rather than finding both credible, and that the judge did not give the parties the opportunity for cross-examination. The Appellate Division held that a court can find both credible but that the opportunity for cross-examination is required in order for the trial court to fully assess the credibility of the parties. The matter was reversed and remanded for a new hearing. In a domestic violence hearing, in order to obtain a FRO, the alleged victim must demonstrate the following factors as set forth in Silver v. Silver , 387 N.J. Super. 112 (2006) before a FRO may issue: 1. The parties' were involved in a domestic or dating relationship; 2. The defendant committed a predicate act of domestic violence under N.J.S.A. 2C:25-19; and 3. A restraining order is needed to protect the alleged victim from the defendant. For more information about domestic violence or restraining orders, visit DarlingFirm.com or, if you are a victim or accused of domestic violence, call now to schedule a consultation. This blog is for informational purposes only and not intended to replace the advice of counsel.