Mediated Agreement Without Party Signatures Was Held To Be Binding

In Campbell v. Campbell, the Defendant appealed from the incorporation unsigned parenting time agreement into the parties' final divorce judgment after a failed attempt at mediation. The Appellate Division affirmed the decision of the Family Court. The parties in this case have two (2) sons who were aged six and ten at the time of the agreement. The younger son has special needs and has suffered from epilepsy. The terms of the agreement in question were reached during a mediation which was held in 2012. The agreement was written down by the mediator. The resulting Memorandum of Understanding (MOU) was unsigned, but the case was reported to the court as settled concerning all parenting time issues. The Defendant filed an Answer to the divorce Complaint, before the mediation, containing a parenting time plan that gave him the same schedule with the children that was reached in the MOU except rather than two week night dinner visits, he would have had one weekly dinner and one weekly overnight visit. In the MOU the parties agreed to joint legal custody along with the parenting time designation for each parent including summer vacations and holidays. The reasons for the delay in signing the MOU were disputed, but in the interim, the Defendant rejected the terms of the MOU unless the Plaintiff agreed to modify it to include two (2) weekly overnights with his children along with some other changes. The Plaintiff agreed to make some of the changes but not all. Two months after the mediation session and after the continued negotiation the Defendant rejected the MOU. In 2013, the Plaintiff filed a Motion seeking to incorporate the MOU into the parties' divorce decree. The Family Court judge granted the Plaintiff's Motion after observing that the children substantially benefited from the parties' agreement and that the MOU could be modified slightly for the best interests of the children. According to the Appellate Division, it is well established that our judicial system encourages and supports negotiated agreements between divorcing parties. Weishaus v. Weishaus, 180 N.J. 131, 143 (2004); Konzelman v. Konzelman, 158 N.J. 185, 193 (1999). Mediation is an alternative means of resolving parenting conflicts and is also available to "resolve aspects of family law matters." Court Rule 1:405(b)(2). The statutory source for mediation is the Mediation Act, N.J.S.A. 2A:23C-1 to -13. The court found that in this case, after the parties reached an agreement, the Defendant had a gradual change of heart and that triggered a new round of litigation . Under the circumstances, the Appellate Division affirmed the decision of the Family Court holding that the Family Court judge's ultimate decision to incorporate the MOU into the divorce decree was based upon weighty equitable considerations that warrant the enforcement of the document. If you believe that mediation is possible in your divorce or family law matter be sure to contact an attorney experienced in mediation and proper drafting and execution of Memorandums of Understanding. For more information about mediation, 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.

Man's Appeal To Terminate Alimony After He Retires Is Denied

In Baker v. Baker, the Defendant appealed from a 2013 Family Court Order that denied his Motion to terminate his alimony obligation. After review, the Appellate Division affirmed the decision of the Family Court. The parties in this case were married in 1975 and obtained their divorce in 1998. Their final divorce judgment incorporated a property settlement agreement (PSA) in which the Defendant agreed to pay $10,000 a month in permanent alimony to the Plaintiff. In 2005, the Defendant's job was terminated and at the time he was fired he was earning $900,000 per year. Shortly thereafter, the Defendant got another job as the CEO of a smaller company where he expected to receive a salary of $120,000 with the potential for bonuses that would be commensurate with his previous job. However, the Defendant did not receive a salary or bonuses at this new position as the company was in dire financial straits. In 2008, the Defendant filed a Motion for a reduction in his alimony obligation. The Family Court denied his application. The Defendant appealed and while his appeal was pending he filed two additional Motions for interim relief, which the court also denied. At the time, the Plaintiff voluntarily agreed to accept a decrease to $8,000 a month in her alimony award. The Family Court held a plenary hearing on the issue in 2010 at the conclusion of which the Defendant's alimony was temporarily reduced to $6,666 a month. The Defendant appealed this decision. In 2011, the Appellate Court affirmed the decision of the lower court. In 2012, the Defendant resigned from the company as it was allegedly about to close its doors and he immediately filed a Motion to terminate his alimony obligation. A plenary hearing was held at which both parties testified about their financial troubles and difficulties securing appropriate work. At the conclusion of the hearing the court denied the Defendant's request. According to the court, there had been "no substantial change in circumstances since the last motion on the [d]efendant's side of the equation" and that termination of alimony was not warranted because the Defendant voluntarily retired from his position. Moreover, when employed as his last company, the Defendant had not acted in good faith as he voluntarily went several years without receiving any income while at the same time loaning the company $138,000. Finally, the court found that instead of seeking a position that would enable him to pay alimony, the Defendant was only "interested in high paying jobs. . . ." Therefore, the court imputed $120,000 a year in income to him which was similar to what he could earn as the base salary at his previous job. The court also noted that the Defendant earned about $170,000 a year in unearned income. In the end, the court ordered the Defendant to pay $5,166 per month in alimony. He appealed. According to the Appellate Division, alimony "may be revised and altered by the court from time to time as circumstances may require." N.J.S.A. 2A:34-23. In order to make such a modification a party must show "changed circumstances." Lepis v. Lepis, 83 N.J. 139, 146 (1980); Weishaus v. Weishaus, 180 N.J. 131, 140-41 (2004). The ". . . party seeking modification has the burden of showing such 'changed circumstances' as would warrant relief from the support or maintenance provisions involved." Martindell v. Martindell, 21 N.J. 341, 353 (1956). There is no " . . . bright line rule by which to measure when a changed circumstance has endured long enough to warrant a modification of a support obligation, instead, such matters turn on the discretionary determinations of Family Part judges, based upon their experience." Donnelly v. Donnelly, 405 N.J. Super. 117, 128 (App. Div. 2009); Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006). Retirement may constitute a change in circumstances warranting a modification or elimination of alimony. Silvan v.Sylvan, 267 N.J. Super. 578, 581 (App. Div. 1993); Deegan v. Deegan, 254 N.J. Super. 350, 358-59 (App. Div. 1992). The analysis turns to whether or not the retirement was voluntary or involuntary. If the change in involuntary, all that is required of the analysis is the parties' financial circumstances. If the change was voluntary the court must consider a list of factors such as whether or not the retirement was made in good faith. In this case, the Appellate Division found that the Family Court did not abuse its discretion in finding no changed circumstances and affirmed the decision of the lower court. 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 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 HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Denial Of Husband's Alimony Modification Reversed

In Galante v. Galante, the Defendant appealed from a court order that denied his Motion for a modification of his alimony obligation. The New Jersey Appellate Court reversed the decision of the Family Court and remanded the case back for reconsideration. The parties executed a marital settlement agreement (MSA) in 2011 upon getting divorced. According to the MSA, with regard to equitable distribution, the Plaintiff was to receive the parties' marital residence, the 401k account from one of the Defendant's businesses, and the parties' 2010 tax refund. The Defendant received the parties' 2009 tax refund, and his 50% interest in three businesses that were acquired during the marriage. Further, the MSA provided for a two-step alimony payment schedule because the Defendant was unable to pay off the mortgage that was securing their former marital home. Before the marital home was sold, the Defendant was to pay all of the house expenses and $400 a week in alimony to the Plaintiff. Once the home was sold, he was to pay $1,500 a week in alimony to the Plaintiff. In 2013, the Defendant filed a Motion with the court to modify his alimony obligation, amongst other things. He claimed that his financial circumstances had dramatically declined which resulted in a significant change in circumstances, which justified the modification of the MSA. Specifically, he noted that his businesses had permanently lost their client base after the economic collapse of 2008 and his annual earnings dropped from $400,000 a year to $130,000 constituting a significant change in circumstances. The Family Court denied his application citing that he had failed to establish a prima facie showing of changed circumstances because he failed to provide the court with documentation that proved his claims. The Defendant filed a Motion for reconsideration in which he included his tax returns. The court denied this Motion as well holding that the Defendant was simply trying to cure his deficient documentation with information that was readily available to him when he filed his first Motion. The Defendant appealed. On Appeal the Defendant claimed that he established a prima facie case for a change in circumstances according to Lepis v. Lepis, 83 N.J. 139 (1980). According to the Appellate Court, alimony "may be revised and altered by the court from time to time as circumstances may require." N.J.S.A. 2A:34-23. To win on such an application, a showing of "changed circumstances" is required. Weishaus v. Weishaus, 180 N.J. 131, 140-41 (2004). The Appellate Court found that in this case the Defendant did not make broad generalizations and bare assertions that his businesses were suffering, but rather, he provided specific details about his businesses failures and his efforts to rectify his situation. Thus, at the very least, the Defendant presented a prima facie case of changed circumstances and if the Plaintiff materially disputed the Defendant's claims, a plenary hearing should have been held to consider those facts, which was not done. Therefore, the decision of the Family Court was reversed. If you believe that a post-judgment modification to your alimony 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, alimony, equitable distribution, 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 if an attorney.

Custody And Parenting Time Dispute Mediation Compelled

In the recent Appellate Division case, Piscopo v. Piscopo, a father petitioned the Family Court to stop his ex-wife from relocating with their children and to compel her to honor their mutually agreed upon Consent Order to resolve issues of custody and parenting time through mediation before going to the courts. The Plaintiff, Brian Piscopo, appealed from a 2013 Family Court Order that denied his request to restrain the Defendant, Michelle Piscopo, from: 1) moving to Holmdel, New Jersey with the parties' children, and 2) the modification of the parties' custody and parenting time arrangement. The Appellate Division affirmed the decision of the Family Court. The parties in this case were married in 2007 and subsequently had two (2) children together. Upon the filing of the divorce complaint the parties participated in custody mediation which was successful. In 2012, the parties entered into a Consent Agreement which seemingly solved all issues with regard to custody and parenting time. According to the Consent Order, the parties agreed to share joint legal custody of their two (2) children with the Defendant as the parent of primary residence and the Plaintiff as the parent of alternate residence. Further, the Order specified that the parties would continue to work out a mutually agreeable parenting time schedule that was consistent with their daily lives but that Plaintiff would have parenting time every other weekend and over nights every Monday and Thursday. Finally, the Order included a term that the parties agreed that if a dispute over parenting time were to arise they shall first attempt to solve the issue through communication with each other, their attorneys, and/or through mediation before litigating the matter. In late 2013, the Defendant decided to move to Holmdel, New Jersey and the Plaintiff objected and filed an application with the court to prevent the move. The Plaintiff argued that pursuant to the Consent Order he enjoyed nearly equal parenting time with the Defendant and if she were to move to Holmdel he would not be able to continue his shared parenting time. The Family Court judge compelled the parties to first attempt to solve the issue outside of court, as per their agreement and directed them to attend mediation. The Plaintiff appealed. The Appellate Division found that the parties' Consent Order, which was incorporated into their Final Divorce Judgment and Property Settlement Agreement, expressly provided for dispute resolution, including mediation, before either party resorts to litigation. Further, marital settlement agreements and their like are "favored by the courts as a peaceful means of terminating marital strife and discord so long as they are not against public policy." Dolce v. Dolce, 383 N.J. Super. 11, 20 (App. Div. 2006); Weishaus, Weishaus, 180 N.J. 131, 143-44 (2004). In this case, the Appellate Court found that the Family Court judge was correct to enforce to parties' mutually agreed upon dispute resolution agreement, as mediation has proven to be successful in the past for parties with similar disputes. Finally, the Appellate Court added that "should mediation prove unsuccessful, nothing in the trial court's order precludes either party from promptly returning to court to adjudicate their dispute." Child custody and child relocation cases are of the most emotional and difficult cases in all of family law. If you anticipate that you may want to petition the court for to modify your custody arrangement or to deal with your child relocation issue it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about custody and visitation, child relocation, parenting time, divorce, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and is in no way is intended to replace the advice of an attorney.