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.

Equitable Distribution Award Survives Challenge

In DeLong v. DeLong, the Plaintiff appealed from a final divorce judgment entered in 2014 awarding alimony, equitable distribution, and counsel fees. The Appellate Division affirmed the decision of the Family Court. The parties in this case were married for thirty-three (33) years. They owned a home together. In 1996, they sold the home when the Plaintiff's mother conveyed her house to them for one (1) dollar, making them joint tenants with a right of survivorship. The Plaintiff's mother received $500 per month which was characterized by the Plaintiff as rent. In 2008, the parties separated and the Plaintiff conveyed the house back to his mother for one (1) dollar. In 2009, the Plaintiff filed a Complaint for divorce which was voluntarily dismissed when the parties attempted to reconcile. In 2013, the Plaintiff once again filed for divorce and the Defendant filed an Answer and a Counterclaim for alimony and equitable distribution. In 2014, the court conducted a trial and heard testimony from the Plaintiff and Defendant about their marital history, work history, and assets acquired during their marriage. The judge decided that the Defendant was entitled to permanent alimony in the amount of $275 a week, $17,688 in equitable distribution representing the return of proceeds from the sale of their home in 1996, 50% of the marital portion of the Plaintiff's retirement funds, and ordered the Plaintiff to pay the Defendant's counsel fees. The Plaintiff appealed challenging the court's award of permanent alimony, equitable distribution, and attorney's fees. The Appellate Court affirmed the decision of the lower court for all the reasons contained in the Family Court's judgment, but added commentary regarding the Plaintiff's challenge to the equitable distribution award. According to the Appellate Division, property subject to equitable distribution includes property that was obtained during the marriage due to efforts by either spouse. Pascale v. Pascale, 140 N.J. 583, 609, 660 A.2d 485 (1995). "Although the trial court is permitted to recognize that the acquisition of certain property may be traced more directly to one partner than the other, the court is not compelled to distribute property to accommodate that origin." Id. at 638. The Appellate Court noted that in this case, the Family Court judge appropriately weighed the financial contributions of both parties as well as the benefits received by each, including improvements to the martial home. If you believe that a post-judgment modification to the equitable distribution of your property 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, equitable distribution, alimony, 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

Child Support Modification Denied

In Markey v. Melazzo, the Defendant appealed from a 2013 Family Court Order that denied his Motion to terminate his child support obligation and force a recalculation of his arrearage. The Appellate Division affirmed the ruling of the Family Court. In 1995, the Plaintiff and Defendant had a son together but never married. In 2005, a Court Order directed the Defendant to pay $129 a week in child support. In 2012, the Defendant was injured at work and has since claimed that he is unable to work because he is disabled. Later that year, a hearing officer denied the Defendant's Motion for modification of support, without prejudice, because the Defendant failed to provide proof of his income or the validity of his disability. In 2013, the Defendant filed the application which was the subject of this appeal, wherein he sought the termination of his child support and the elimination of his arrears. The Defendant claimed that the Plaintiff has not permitted him to visit with the child and has changed the child's last name without his consent. In 2013, the Family Court denied the Defendant's Motion because the Defendant failed to provide a valid basis for relief. The Defendant appealed. According to the Appellate Division, child support is necessary to ensure that parents provide for the basic needs of their children. Pascale v. Pascale, 140 N.J. 583, 590, 660 A.2d 485 (1995). A party who seeks modification of his or her child support obligation has the burden of demonstrating a change in circumstances warranting such an adjustment. Lepis v. Lepis, 83 N.J. 139, 157, 416 A.2d 45 (1980). The decision must be made in accordance with the N.J. Child Support Guidelines when applicable. Caplan v. Caplan, 182 N.J. 250, 266, 864 A.2d 1108 (2005); Terry v. Terry, 270 N.J. Super. 105, 121, 636 A.2d 579 (App. Div. 1994). In this case, the Defendant sought the termination of his child support obligation and the elimination of his arrears dating back to 2002 when the child's name was changed, arguing that the name change was a de facto termination of his parental rights, yet the Defendant cites no authority of his position. According to the Appellate Court, the Family Court correctly determined that the Defendant's parental rights were never terminated and thus found no basis for vacating the Defendant's arrears. With respect to the Defendant's claim of disability, he did not submit any medical information. Therefore, the Appellate Division affirmed the decision of the Family Court. If you anticipate that it may be beneficial to you to seek a post-judgment modification of a Court Order regarding a 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, 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.

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.

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.

Even If Mother Interferes With Visitation, Father Gets No Reduction In Child Care Costs

Goni v. Tchistiakova, is a case that came out of Sussex County, in which the Defendant appealed from a post-judgment Order denying her application to compel the Plaintiff to contribute to their son's after school care expenses and that before the Defendant could file another application the Plaintiff's parenting time had to be significantly expanded. The Appellate Division reversed the decision of the Family Court. The Defendant filed a summary action with the Family Court, pursuant to Rule 5:6-1, to modify an existing child support Order in the hopes of compelling the Plaintiff to contribute to their son's after school care expenses. The court instructed the parties to attempt to solve the issue themselves. At that time the court heard the Plaintiff's request for additional parenting time and noted that the Defendant should "expand" the Plaintiff's parenting time, as well as that of his extended family, before she should get any additional expenses from him. The Defendant appealed. The Appellate Court reversed the decision of the Family Court holding that the lower court failed to provide a reasonable basis for denying the Defendant's request. Unless there are circumstances that excuse a parent from paying child support, a parent must contribute to work-related day care expenses. See NJ Child Support Guidelines. In this case, there was no evidence presented indicating that the Plaintiff was relieved of his duty to contribute. Next, even if the Defendant interfered with the Plaintiff's parenting time, his obligation to pay support would not be relieved because a "parent's responsibility to support [his] child financially cannot be lessened by the other parent's interference 'with rights of custody or visitation granted by a court.'" Pascale v. Pascale, 140 N.J. 583, 592 (1995); Ross v. McNasby, 259 N.J. Super 410, 414 (App. Div. 1992). Finally, there was no application submitted to the court requesting an expansion of the Plaintiff's parenting time. Beyond that, unless a grandparent or sibling has filed an application and a court has issued an Order directing visitation with them pursuant to N.J.S.A. 9:2-7.1, then family members are not entitled to visitation. If you are considering a post-judgment modification of your child custody or parenting time arrangement or financial obligations it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification , divorce, alimony, child custody, parenting time, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Child Support And College Expenses Calculated Based on Imputation of Income To Mother

In Haymaker v. Haymaker, the Plaintiff appealed from a post-judgment Court Order that required her to contribute to her daughter's college expenses and set a child support obligation and amount of arrears. The Appellate Court reversed and remanded the decision of the Family Court. The Plaintiff and Defendant were married and two (2) children were born to them. The parties were divorced in 1996. The parties' second child, C.H. was attending Syracuse University since August 2012. From the parties' divorce until 2011, C.H. lived primarily with the Plaintiff. In 2011, the Defendant submitted an application to the court for a change in custody which was granted and an order issued allowing C.H. to live in the primary custody of the Defendant. The Motion was initiated based upon a "four-year financial plan" which was established between the Defendant and C.H. to free the Defendant from his child support obligation and to permit his contribution to C.H.'s college expenses. The change in custody negatively impacted C.H.'s relationship with the Plaintiff. In 2012, the Defendant filed another Motion which sought a Court Order to determine his proportionate share of his daughter's college contribution for the support needs that were not covered by her attendance at college. Subsequent to this, the court issued an Order directing that the Plaintiff pay $125 per week in child support starting in July of 2012. The Plaintiff then filed a Motion for reconsideration which was denied. The Plaintiff appealed the decision and a subsequent decision affixing her child support that was heard during the pendency of the appeal. According to the Appellate Court, the Family Court has "substantial discretion" in deciding issues of contribution to college expenses. Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012); Pascale v. Pascale, 140 N.J. 583, 594-95 (1995). An award will not be disturbed unless is it manifestly unreasonable or arbitrary. In Newburgh v. Arrigo, 88 N.J. 529 (1982), the New Jersey Supreme Court provided a framework for evaluating parental contribution toward a child's post-secondary education. A Family Court judge has an obligation under Newburgh and N.J.S.A. 2A:34-23(a) to consider all of the factors contained in that decision when making a contribution award. Further, it is well established that a child over the age of 18 who is enrolled in a full-time educational program requires continued support. Gac v. Gac, 186 N.J. 535, 542 (2006). In this case, the Appellate Court did not take issue with the Family Court judge's analysis of the Newburgh factors in reaching his decision, rather, the court disagreed with the judge's factual findings relative to his consideration of a student loan and other unreimbursed costs in the calculus of his determination. The court also found that the Family judge's imputation of income to the Plaintiff was incorrect. Therefore, the case was reversed and remanded back to the Family Court for a re-calculation of these figures. If you believe that a post-judgment modification to your child support or college expense contribution obligation 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, child support, divorce, child custody, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice if an attorney.