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

In Sercia v. Sercia, the Defendant appealed from a post-judgment matrimonial Family Court Order that denied her Motion for the payment of supplemental alimony from the Plaintiff's annual bonus income under. The Appellate Court affirmed the decision of the Family Court. The parties were married in 1999 and have two (2) children. The Plaintiff filed for divorce and the parties amicably resolved all issues and executed a property settlement agreement (PSA) that was incorporated into their final divorce judgment in 2010. In the agreement, the Plaintiff agreed to pay alimony and child support based upon his salary of $125,000 and the Defendant's imputed income of $20,000. Further, a provision in the agreement specified that the Plaintiff was to pay the Defendant one third of the net cash bonus that he earned each year in addition to the alimony award. Under the PSA, the Defendant was only entitled to a share of the Plaintiff's bonus when the bonus totaled $100,000 or greater. In 2011, the Defendant submitted a Motion to enforce litigant's rights and among the relief that she requested was to compel the Plaintiff to pay one third of his bonus. The Plaintiff did not oppose the Motion. The judge denied the Defendant's request because the Plaintiff's bonus did not come close to $100,000. Another Motion was submitted in 2013 in which the Defendant requested discovery regarding the Plaintiff's income and bonus income, payment of one third the net bonus for 2010, 2011, and 2012, and counsel fees. The Plaintiff did not respond. A Family Court judge granted the Defendant's request for discovery, but denied her request for the payment of supplemental alimony. The Defendant appealed from this decision arguing that the language of the parties' PSA was being misinterpreted by the court and by the Plaintiff and that it was intended to award her with alimony payments both from the Plaintiff's base income, as well as, his bonus despite the amount. According to the Appellate Court: "An agreement to settle a lawsuit is a contract, which like all contracts, may be freely entered into and which a court, absent a demonstration of fraud or other compelling circumstances, should honor and enforce as it does other contracts." Brundage v. Estate of Carambio, 195 N.J. 575, 601 (2008). "When examining the terms of a settlement agreement, we are guided by the rules of contract construction." Globe Motor Co. v. Igdalev, 436 N.J. Super. 594, 601 (App. Div. 2014); Thompson v. City of Atl. City, 190 N.J. 359, 379 (2007). "The polestar of contract construction is to discover the intention of the parties as revealed by the language used by them." Karl's Sales & Serv., Inc. v. Gimbel Bros., Inc., 249 N.J. Super. 487, 492 (App. Div.) certif. denied, 127 N.J. 548 (1991). Therefore, a court cannot re-write a contract or grant a better deal than that for which the parties expressly bargained. Solondz v. Kornmehl, 317 N.J. Super. 16, 21 (App. Div. 1998). The Appellate Division held that the language at issue in the parties' PSA is unambiguous and therefore should be applied as the Family Courts and the Plaintiff have understood it to apply. The decision of the lower court was affirmed. If you believe that a post-judgment modification to your property settlement agreement (PSA) regarding alimony may be beneficial to you or if you anticipate defending the language of your PSA as written it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, alimony, equitable distribution or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice if an attorney.

Early Expungement Factors in NJ

Expungement is a means of sealing criminal records for those who made an error in judgment. In order to qualify for an expungement, there is a waiting period, at least 5 years, which must pass without the commission of further crimes. New Jersey has relaxed the timeframe for expungement in certain circumstances. In considering early expungement, the court has set forth certain factors. The nature of the offense must be balanced against the petitioner’s overall character. At all times, it is the petitioner’s burden to prove they are deserving of an early expungement. The State is considered to have met it’s burden of proof at the petitioner’s trial. In the case of a petitioner previously convicted of dealing drugs, the New Jersey Supreme Court held that a lower court erred in considering factors the Legislature did not include in the carefully drafted statute. Although the nature of the drugs sold could not be considered, the number of times drugs were sold, whether they were sold to minors and weather there were weapons involved could be considered. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you have a criminal record that is hindering your ability to obtain employment, the education you want or otherwise negatively impacting your life, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on expungements or other criminal law matters, including municipal court matters, in New Jersey visit HeatherDarlingLawyer.com.

Lack of Consent to Search Permits Withdrawal of Guilty Plea in NJ

Police received a tip from an informant about two black males selling drugs out of a car belonging to defendant. When police located the vehicle at the location provided, they notified defendant of their belief there were drugs in the trunk and requested permission to search. Upon denial of consent to search, officers proceeded to open the trunk and located the drugs the informant stated they would find. After entering a plea of guilty to two counts of third-degree possession of a controlled dangerous substance (CDS) with intent to distribute, the defendant moved to withdraw his guilty plea. In spite of the fact defendant may have been notified of his right to file a suppression motion, and that his right would be waived by entering a plea of guilty, defendant chose to plead guilty. Defendant later filed a motion to withdraw his guilty plea. After the Court below denied the defendant the relief sought, the New Jersey Appellate Court found that the Motion to withdraw the plea should have been granted. Defendant's appeal was granted on his contention that he did not consent to the search of the trunk of his car. Defendant claimed that he expressly denied consent to open the trunk of the car but the police did not honor his rights. Because the search may have violated defendant's rights, granting defendant's motion to withdraw the guilty plea was appropriate. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you face criminal charges as a result of an illegal search, you should consult an experienced criminal defense attorney immediately in order to protect your rights. For more information regarding illegal search and seizure, 4th Amendment rights, drug charges or other criminal law matters, including municipal court matters, in New Jersey visit HeatherDarlingLawyer.com.