Motion For Alimony Reconsideration Not A Matter Of Right

In Ackerman v. Freitag, the Plaintiff appealed from a Court Order issued in 2014 that denied her unopposed Motion for reconsideration regarding her request for an award of alimony based upon changed circumstances and an increase in child support. The Appellate Court affirmed the decision of the Family Court in holding that a Motion for reconsideration is not a matter of right. The parties in this case divorced in 1999. At that time, they executed a property settlement agreement (PSA) that included a waiver of "any and all rights for alimony which either may have against the other, now and in the future." In 2012, the Plaintiff's license to practice medicine was suspended and she could no longer work in her field. She filed numerous Motions seeking relief based upon this life event and the negative financial impact that it had on her life. All requests for relief were denied. The judge based his denial on the fact that the medical board had concerns regarding the Plaintiff's mental health and required her to submit reports from mental health professionals attesting to her ability to continue to work. The Plaintiff failed to submit any documentation. Due to this, the judge ruled that the Plaintiff was voluntarily unemployed and denied her requests for relief. The Plaintiff then filed two subsequent Motions for reconsideration, both of which were denied for the same reasons. The Plaintiff appealed. According to the Appellate Division, the Orders that the Plaintiff appealed from sought reconsideration of prior Orders entered by the court. A Motion for reconsideration is governed by Court Rule 4:49-2 and is a matter to be exercised in the trial court's discretion. Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App Div.) certif. denied, 195 N.J. 521 (2008). It is not appropriate merely because a litigant is not happy with a decision of the court that he or she should be able to reargue a Motion, instead such relief "should be utilized only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence." D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). The Appellate Division found that the Family Court judge provided thoughtful consideration to the Plaintiff's Motions and properly denied them. Being that the laws governing alimony have recently been changed, it is very important that you seek out the advice of an attorney to protect your rights an entitlements. If you think that it may be beneficial for you to petition the court for a post-judgment modification of your alimony or child support obligation or for any other reason it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, divorce, post-judgment modification, child support, or other family law matters in New Jersey visit the DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Fiance's Drinking Does Not Affect Father's Parenting Time

In Santos v. Yanez, the Defendant appealed from a post-judgment Family Court Order that denied her Motion for Reconsideration with regard to the custody of her daughter and the Plaintiff's parenting time. The Appellate Division affirmed the decision of the Family Court. The parties in this case were divorced in 2011. They only have one (1) child, a daughter, who was nine years old at the time of the appeal. In 2012, the parties entered into a Consent Order that directed that they share joint legal custody of their daughter but specified that the Defendant was to be the parent of primary residence. A year and a half later, the Plaintiff's fiancé picked up the parties' child from school because he was unable to. Upon leaving the school, the fiancé's car lost control and struck a tree. She was charged with careless driving, driving while intoxicated, and refusal to provide a breath sample. The parties' daughter was severely injured. A month following the accident, the Defendant filed an Order to Show Cause (OTSC) seeking temporary sole custody of the child and a drastic restriction on the Plaintiff's parenting time. The Defendant also sought to have the Plaintiff's fiancé barred from ever being in the presence of the child again. The Family Court denied the Defendant's application for emergent relief but barred the Plaintiff's fiancé from having any contact with the child. The OTSC was converted to a Motion and scheduled for a return date. The court found that the Defendant failed to establish a prima facie case that their daughter was suffering from a genuine and substantial harm from remaining in the Plaintiff's custody as none of the injuries suffered by the child could be attributed to the Plaintiff's conduct. The Defendant filed a Motion for Reconsideration. The court denied the Motion and the Defendant appealed. The Appellate Court affirmed the decision of the lower court finding that motion reconsideration is appropriate when a court's previous decision was "based upon a palpably incorrect or irrational basis," or failed to consider or appreciate "probative, competent evidence [,]" or where a "litigant wishes to bring new or additional information to the [c]ourt's attention which it could not have provided on the first application [.]" D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). In this case, the Appellate Court held that the record fully supported the Family Court's decision based upon the facts presented and upon the observation "that [d]efendant's motion [was] almost identical" to a prior motion that she submitted and therefore there was no abuse of discretion in the court denial of her request. Cummings v. Bahr, 295 N.J. Super. 374, 384-85 (App. Div. 1996). If you believe that a post-judgment modification to your child custody or parenting time arrangement 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 custody, parenting time, 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.

Remand Of Post-Judgment Child Custody Issue For Due Process

S.W. v. W.B., is a New Jersey Appellate Division case that was decided in 2015 in which the Defendant appealed a prior Court Order that denied his Motion for Reconsideration regarding post-judgment divorce and child custody Orders that pertained to reimbursement obligations for extra-curricular activity expenses for his children. In reviewing a Motion for Reconsideration, a court must determine if the trial court abused its discretion in rendering the decision that is disputed. Fusco v. Newark Bd. of Educ., 349 N.J. Super. 455, 462 (App. Div. 2002). "Reconsideration should be used only for those cases . . . where either (1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence." Id. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). A Motion for Reconsideration should only be granted under very narrow circumstances. In this case, the Appellate Division agreed with the Defendant that the Family Court mistakenly viewed part of the Defendant's Motion as a Motion for Reconsideration, when it should have treated the Motion as one to vacate the prior Court Order on due process grounds and the court should have considered the merits of his argument before denying his Motion. The Plaintiff and Defendant were married in 1998 and two (2) daughters were born during the marriage. In 2009, the parties decided to divorce and their final divorce judgment incorporated a property settlement agreement (PSA). Apparently, the parties agreed to equal shared parenting time. There has been multiple post divorce disputes with regard to the sharing of the children's extra-curricular activity expenses. The agreement provided that the Defendant was to pay 48% and the Plaintiff 52% of the costs associated with the activities. Further, the agreement particularly states that "The parties shall discuss the cost of any activity and only agreed upon activities shall be so divided. Neither party shall enroll the children into an activity without discussing same and obtaining agreement from the other party." Since 2009, the litigants have come to court with disputes regarding this provision on multiple occasions. With regard to the latest exchange of Motions between the parties, the Defendant filed his Motion for Reconsideration 20 days after his receipt of the Court Order he was objecting to because he claimed that he was not properly served with previous pleadings. . . ." The Defendant filed an appeal in 2013 and referenced a number of prior Court Orders that he was dissatisfied with. For the reasons previously mentioned the Appellate Division remanded the case back to the Family Court to make determination on the issues of the case. If you believe a post-judgment modification of your child custody arrangement or obligations may be beneficial, 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, 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.