Post Divorce Challenge To Alimony And Child Support Findings

In Wicker v. Wicker, James Wicker challenged the method in which his alimony and child support obligation was calculated. Specifically, Wicker challenges the court's determination of his monthly expenses and income in arriving at his available funds from which child support for the parties' 3 daughters may be paid. Wicker contended to the NJ Appellate Division that the court did not adequately consider his expenses in commuting from Virginia to New Jersey every other weekend in order to exercise his parenting time and failed to properly include his rental expenses and was inequitable in creating the need for him to remain employed in Washington, D.C. which necessitated the retention of two separate residences. Tara and James Wicker entered into a voluntary and negotiate, but not complete, property settlement agreement (PSA) leaving some remaining issues for the court to decide. From 1996, the date of the parties' marriage, until 2010, the defendant earned under $100,000. In 2010, the defendant secured an income of approximately $190,000 per year leading up to the parties' divorce in 2013. Two of the parties' 3 daughters had significant medical issues and Tara Wicker was the primary caretaker. An employability expert determined that Tara Wicker's long-term absence from the job market and need to care for the children limited her earning capacity to $35,000 per year. Both parties challenged the figures which should be used in determining income. There was also substantial question as to how the defendant arrived at his monthly expenses, including his claim of $9,000 monthly in pendente lite support. The NJ Appellate Division began the analysis with Cesare v. Cesare, 154 N.J. 394 (1998), which dictates that decisions of the court below will remain undisturbed if supported by the weight of credible evidence and law, and Gnall v. Gnall, 222 N.J. 414 (2015), dictating that decisions of the court below will be disturbed if the court below abused its discretion or the findings are not consistent with the credible evidence and legal principles. The Appellate Division reasoned that N.J.S.A. 2A:34-23(b) empowers judges with the authority to fashion individual solutions best suited to meet the needs of both parties. Randazzo v. Randazzo, 184 N.J. 101 (2005). In affirming the decision of the court below, the court found that the trial judge gave full review to the facts, including the defendant's income and expenses, and the findings were supported by the weight of credible evidence under the guiding principles of law. A divorce will likely have a considerable impact on your life, including determinations about support, custody and parenting that affect where and how you and your family will live. If you are considering divorce or modification of a prior judgment, you should first consult with an experienced family law attorney to determine the likely outcome. For more information about divorce, alimony, child support, relocation with a child and other family law matters visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Appeal Of Default Divorce By Pro Se Party Unsuccessful

In Dippel v. Dippel, the Plaintiff appealed from a 2013 Final Divorce Judgment that was entered by default on the Defendant's Counterclaim because the Plaintiff failed to comply with the Rules of the Court. The Plaintiff instituted divorce proceedings in 2010 and in 2012 the court dismissed his pleadings without prejudice for failure to comply with discovery requests. In 2012, the court denied the Plaintiff's application to vacate the default judgment and allow him additional time to provide discovery. Later that year, the Plaintiff once again made an application to vacate his divorce judgment, which was denied. The court had advised the Defendant that she could proceed with default proceedings based upon her Counterclaim because the Plaintiff did not comply with discovery. A trial was held in 2013, at which, the trial judge thoroughly placed on the record the history of the Plaintiff's failure to comply with discovery. The court then proceeded to adjudicate custody, parenting time, alimony, and child support. The court did not address equitable distribution, determining that any proceeds from the sale of assets shall be held in escrow. A Final Divorce Judgment was issued on June 13, 2013. The Plaintiff filed a pro se brief with the Appellate Court which did not comply with the Rules of the Court. N.J. Court Rule 2:5-4; N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278, 914 A.2d 1265 (2007). Further, the contents of the Plaintiff's brief did not comply with N.J. Court Rule 2:6-2. In essence, the Plaintiff asked the Appellate Court to review the entire divorce proceedings in totem. According to the Appellate Division, the Defendant's request mischaracterizes its role in the proceedings, as it is to give considerable discretionary decision to the Family Court. Donnelly v. Donnelly, 405 N.J. Super. 117, 127, 963 A.2d 855 (App. Div. 2009). When a Family Part judge has made findings of fact after considering the testimony and documents the parties have presented during a non-jury trial, the judge's findings are generally "binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12, 713 A.2d 390 (1998). Further, "parties are required to make adequate legal argument." 700 Highway 33 LLC v. Pollio, 421N.J. Super. 231, 238, 23 A3d 446 (App. Div. 2011). Conclusory assertions that a judge committed error, devoid of reference to the judge's decision or the trial record, and further devoid of any attempt to apply the applicable precedent of the factual underpinnings of such conclusory assertions, do not satisfy the requirement. Therefore, the decision of the Family Court was affirmed. If you are considering and appeal of your final divorce judgment or you would like more information regarding divorce it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about divorce, uncontested divorce, equitable distribution, child support, alimony or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Parenting Time Plan Upheld By NJ Appellate Division

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

Appellate Court Upholds Arbitrator's Award of Limited Duration Alimony

In the case of Lopez v. Lopez, the Defendant appealed from a 2013 Family Court Order that denied her Motion to modify the terms of a divorce arbitration award that granted her limited duration alimony rather than permanent alimony. The Appellate Division affirmed the decision of the lower court. This disposition in this case comes down to the scope of review vested in the Appellate Court. The Appellate Court determined that its review of the Family Court's Order was limited. In fact, the court acknowledged that it owed substantial deference to the Family Court's findings of fact. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Accordingly, a "reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record." MacKinnon v MacKinnon, 191 N.J. 240, 253-54 (2007) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). Although the Appellate Court does not owe any special deference to the Family Court's legal conclusions, it "should not disturb the factual findings and legal conclusions of the trial judges unless . . . convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice . . . . " Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010). During their divorce, the parties were able to work through all issues including equitable distribution, child custody, and parenting time, but could not agree on amount and duration of alimony. The parties agreed to submit the question of alimony to binding arbitration. In a very detailed written award, the arbitrator reviewed all of the pertinent factors for determining alimony as set forth in N.J.S.A. 2A:34-23(b). In the end, the arbitrator awarded the Defendant $200 per week in limited duration alimony for two (2) years. The Defendant filed a Motion to modify the arbitrator's award because she believed that because the parties were married for 29 years, permanent alimony should have been awarded. Following oral argument the Family Court judge denied the Defendant's Motion holding that a trial court may modify an arbitration award if "the rights of the party applying for the modification were prejudiced by the umpire erroneously applying [the] law to the issues and facts presented for alternative resolution." N.J.S.A. 2A:23A-13(e)(4), citing Borough of East Rutherford v. East Rutherford P.B.A. Local 275, 213 N.J. 190, 194 (2013). The Defendant Appealed. The Appellate Court affirmed the decision of the Family Court and in light of the record found that the Defendant's arguments were without merit as it determined that the Family Court properly determined to maintain the arbitrator's award of two (2) years of limited duration alimony. Recently, the state statute that governs alimony has recently been modified, it is very important that you seek out the advice of an attorney to protect your rights an entitlements. If you think that it may be beneficial for you to petition the court for a post-judgment modification of your alimony obligation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, spousal support, equitable distribution, child support, post-judgment modification, 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.

Court Refuses To Terminate Alimony Due To Job Loss

In the 2015 case, Lodge v. Lodge, the Plaintiff appealed from a Court Order issued in 2012 that denied his Motion to terminate alimony but instead reduced his support obligation after he lost his job and became disabled. The court's reasoning was based primarily upon the fact that the Defendant, the Plaintiff's ex-wife, did not have any other income other than her alimony. In New Jersey, whether or not a party's alimony obligation should be terminated, reduced, or modified in any way is based upon a claim and showing of changed circumstances. Larbig v. Larbig, 384 N.J. Super. 17, 21 (App Div. 2006). A Family Court judge is empowered with the ability to determine whether a change in circumstance has occurred based upon the individual facts of each case. Id. In this case, the Plaintiff argued that his circumstances had changed because he was laid off from his job and could not find another one, therefore his alimony obligation to his ex-wife should be terminated. Further, he added that since he was laid off he had become physically disabled. The Plaintiff also was receiving eighty (80) weeks of severance from his former employer. In 2011, he filed a Motion to terminate his alimony obligation based upon these changed circumstances. The Family Court recognized the Plaintiff's financial difficulties but because the Defendant did not have any income beyond her alimony, in the interests of equity, the court temporarily reduced the Plaintiff's obligation to a progressively decreasing amount beginning in 2012 and ending with $81 a week to be effective in 2014. This determination was based upon the factors set forth in N.J.S.A. 2A:34-23(b) and the fact that the parties would be receiving Social Security benefits. On Appeal, the Plaintiff argued that the Family Court's reluctance to terminate his alimony obligation was inequitable. The Appellate Court affirmed the decision of the Family Court holding that the judge's decision was supported by sufficient credible evidence and did not constitute an abuse of the court's discretion. Harte v. Hand, 433 N.J. Super. 457, 461 (App. Div. 2013); Cesare v. Cesare, 154 N.J. 394, 412 (1998); Lepis v. Lepis, 83 N.J. 139 (1980). Although the laws regarding duration of alimony have recently been changed, many people will still be required to pay or receive spousal support for many years. This can be a substantial financial burden or benefit to you depending upon your circumstances. If you anticipate that you may want to petition the court for a post-judgment modification of your alimony obligation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, child support, post-judgment modification , 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 COLA Increase Defeated On Appeal

Legal issues that involve disputes regarding child support can be of the most emotional and difficult in all of family law because of the sensitive nature of the issues, Wexler v. Wexler, is a 2015 New Jersey case involving a party's post-judgment application to reduce his child support. The Plaintiff in this case appealed the decision of the Family Court disputing the trial judge's finding that his child support obligation should be increased due to a change in circumstances. The divorced parties in this case have two (2) children who are teenagers and were teenagers at the time this litigation commenced. At the time of their divorce each party had residential custody of one of the children and according to their final divorce judgment the Plaintiff was required to pay the Defendant $52 per week in child support. In 2011, the Defendant filed a Motion requesting residential custody of the child that was not living with her and for an increase in the Plaintiff's child support obligation. After the proceedings, the judge entered an order that, amongst other things, increased the Plaintiff's child support to $266 a week. Three days after the Order was issued, the Probation Division sent both parties a notice that the Plaintiff's weekly child support would be increased to $278 because of a "biennial cost-of-living adjustment (COLA)." Rule 5:6B(a) provides that "all orders and judgments that include child support . . . shall provide that the child support amount will be adjusted every two years to reflect cost of living." A few months later the Defendant filed a Motion to enforce the prior Order to require the Plaintiff to make his payments on time and in the full amount. Soon thereafter Probation requested that the court void their prior COLA increase of the Plaintiff's child support because it had been increased in the previous Order and therefore there was no basis for a COLA increase. Without knowledge of Probation's request, the Plaintiff filed a response to the Defendant's enforcement Motion and requested that the COLA be cancelled. In July 2013, a Family Court judge granted the Defendant's enforcement Motion and directed that the Plaintiff pay a $1,500 lump sum payment toward his arrears. The Plaintiff then filed another Motion requesting that the COLA be voided. The judge denied his request citing that "the Court entered a new child support obligation on July 31, 2013 for $278 based upon a change in circumstances." From this holding, the Plaintiff appealed. The Appellate Division held that it owed substantial deference to the Family Court's decision. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007). The court agreed with the Plaintiff that the Family Court judge mistakenly changed his child support obligation to $278 a week and therefore a change in circumstances was not the correct basis to make the increase. Being that there was no basis to raise the amount and because Plaintiff's obligation had recently been increased to $266 a week the Appellate Court reversed and remanded the case back to the Family Court to readjust the obligation. If you anticipate that you may want to petition the court for a post-judgment modification of your child support obligations it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about child support, post-judgment modification , alimony, divorce 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.

Appellate Court Reversed Post-Judgment Modification to Divorce

In Antonoff v. Antonoff, the Appellate Court ruled on a post-judgment modification case where the Plaintiff appealed from an amended Final Divorce Judgment involving alimony, child support, and equitable distribution, and a court order sanctioning him and denying his motion for reconsideration. The parties in this case were married in 1987 and there were three children born of the marriage. For the majority of their marriage, the Plaintiff, Roy Antonoff, owned and operated a heating, ventilation, and air-conditioning installation company. The Defendant, Sandra Antonoff, was a stay at home mother who returned to work as a medical biller in 2008 because the Plaintiff's business lost its book of business. During the years of 2009 and 2010, the Plaintiff secured work at his brother's air-conditioning company earning substantially less than he had when he was operating his own business. In 2012, the Family Court judge entered a Final Judgment of Divorce, imputed the Plaintiff's income under Rule 5:6A of the New Jersey Child Support Guidelines to $67,910, and awarded the Defendant: $788 a month in alimony, $4,200 from the sale of the parties' car, and $6,587.45 in attorney's fees. Subsequently, the judge denied the Plaintiff's motion for reconsideration of the divorce judgment and one year later amended the judgment to reduce his child support obligation from $192 to $168 to be paid bi-weekly. The Plaintiff appealed, arguing that the Family Court judge failed to consider his pro-se post-trial summation, erred in denying his motion for reconsideration, abused her discretion by awarding the Defendant counsel fees as a sanction against him, wrongly imputed his income, miscalculated his alimony amount, and inequitably distributed the parties' cars. The New Jersey Appellate Court reversed and remanded the lower court's decision. First, the Appellate Court found that the Family Court judge erred by failing to consider the Plaintiff's written summation and ordered that the lower court do so on remand. Next, the court found that the Family Court correctly determined that the Plaintiff was voluntarily unemployed and subsequently had to impute the Plaintiff's income. In its holding, the Appellate Court stated that "family courts are presumed to possess special expertise in matters such as the calculation of support obligations" and therefore their determinations are entitled to a high degree of deference. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Further, the court found that the Family Court judge incorrectly imputed the Plaintiff's income because she did not "realistically appraise plaintiff's ability to earn income by considering plaintiff's job opportunities and his experience. . . ." In addition, the Appellate Division held that certain changes needed to be made to the way the lower court equitably distributed the parties vehicles. According to the court, pursuant to N.J.S.A. 2A:34-23.1, the trial court must consider factors such as the duration of the marriage, the income or property the parties brought to the marriage, and their economic circumstances at the time of the division and that the Family Court judge made findings that were unsupported by adequate evidence in the record. Finally, the Appellate court vacated the order sanctioning the Plaintiff and set aside the award of counsel fees without prejudice. If you anticipate that you may want to petition the court for a post-judgment modification of your divorce judgment, alimony award, or 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 modifications, divorce, alimony, child support, equitable distribution 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.

The Family Court Has Discretion In Family Law Matters

In a recent decision, the Appellate Court deferred to a Family Court ruling because, as it stated, the Family Court has special expertise in family matters. In the case, Formicola v. Kearn, the Plaintiff, Richard Formicola, and Defendant, Arleen Kearns, were married in 1987 and obtained a divorce in 2004. They have two children which were born during their marriage. There was a property settlement agreement that was incorporated into the couples' Final Judgment of Divorce. According to the property settlement agreement (PSA), the Plaintiff is required to pay the Defendant alimony in the sum of $9,100 per year for ten years starting on January 14, 2004 and ending on January 13, 2014. Further, the PSA specified that the Plaintiff was to pay child support in the amount of $18,900 per year along with one third of his annual bonus up to $5,000. In addition, the parties agreed that the child support obligation would be re-evaluated when each child matriculated to college. In 2011, the Defendant filed a motion claiming that the Plaintiff violated the PSA by not contributing his share of college tuition payments, not contributing to home repairs, and for additional information regarding his bonuses. At that time, the parties' daughter was a junior in college and their son was a high school senior. Initially, the parties attempted to settle the dispute in mediation, which failed. Therefore, a court ruled that the parties were to share in their children's college expenses in proportion to their incomes, that the Plaintiff was to pay the Defendant for deficient sums of his annual bonuses that she was entitled to, and the Defendant was to contribute to the marital home repairs, amongst other orders. The Plaintiff appealed the court's decision arguing that the trial court abused its discretion in granting the relief sought by the Defendant without analyzing the facts or case law, erred in allocating college expenses, and was wrong in awarding the Defendant counsel fees. The Appellate Division affirmed the lower court's decision holding that based on the ruling in Cesare v. Cesare wherein the court held "the general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." In addition, the Court noted that because the Family Court has special jurisdiction and expertise regarding family matters, the Appellate Division should offer deference to the fact finding that was conducted by the Family Court. In this case, the Appellate Court found that, although in some matters a plenary hearing must be held in order for the trial court to make a determination, the Family Court carefully considered the large number of documents submitted by the parties and its holding was supported by sufficient, credible evidence. The enforcement of the terms of property settlement agreements during or after a divorce can require an intricate understanding of the law, therefore if you require assistance in enforcing custody, alimony, parenting time, or any other terms contained in a settlement agreement or would like to engage mediation to reach such an agreement it is critical that you seek out the advice of an experienced attorney before proceeding. For more information about divorce, mediation, custody, visitation, parenting time, alimony/spousal support, child support, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.