Pre-Marital Assets Comingled Become Joint Property

Andrew Flockhart v. Karen Flockhart was a divorce ending in a twelve day trial relating to alimony, custody, child support and equitable distribution. The parties married in 1995, had three children born in 1998, 2000 and 2004 and separated in 2012. The Plaintiff had a successful landscaping business that predated the marriage and owned his own home as well. The Defendant was employed and also helped the Plaintiff with his landscaping business prior to the birth of their first child. Thereafter, the Plaintiff stopped working until 2014 when she began working part-time. During the marriage, the Plaintiff sold his home and the parties upgraded through multiple residences and, in 1998, the Plaintiff sold his business and the parties formed an entity including property purchased with the proceeds of Plaintiff’s landscaping business in which they owned equal interests. The parties branched into other equally held businesses and real estate holding companies. Plaintiff also formed a business with his mother, in which she was a majority shareholder and to which she contributed $200,000. In 2012, the Plaintiff filed for divorce and the parties’ holdings were evaluated with valuations in the millions, although they were offset by significant outstanding mortgage balances. Plaintiff was granted sole legal custody of the sons with the Plaintiff having physical custody of the older son. The parties’ daughter was emancipated. The parties’ combined net income during the marriage exceeded $187,200 which would trigger certain child support guideline limits. Plaintiff was ordered to pay$224 weekly child support for the younger son and defendant was ordered to pay $380 per week in child support for the older son – a net weekly payment to Plaintiff from Defendant of $156 in child support. The court imputed Plaintiff income of $300,000 annually and Defendant was imputed income of $27,040 annually. Plaintiff was ordered to pay $2,500 weekly in alimony until the parties’ older son was emancipated and $1950 weekly thereafter for a total alimony period of seventeen years and five months, a duration equal to that of the marriage. In spite of the $275,000 disparity in their annual incomes, the alimony calculation left both Plaintiff and Defendant in the very similar position of falling slightly short of their post-marital monthly budgets of over $10,000 each. The court determined that the parties’ assets should be divided equally as they were amassed through joint efforts. The parties appealed as to several issues including alimony and equitable distribution. The result of the appeal was remand of the matter for a review of child support and some adjustments with regard to equitable distribution. There were no credits to the Plaintiff for the contribution of his premarital business for the growth of the marital enterprise, nor for the contribution of his premarital residence to the purchase of the successive marital residences. If you are considering divorce, it is imperative that you obtain the advice of an experienced family law attorney in order to insure that your rights are protected. For more information about divorce, alimony, child support or other family law matters, visit DarlingFirm.com or call 973-584-6200 today if you wish to consult with an experienced divorce lawyer. This blog is for informational purposes only and not intended to replace the advice of counsel.

Child Support Modification Was Intended to Benefit Defendant

Ianniello v. Pizzo involved a motion to modify child support following a high-net worth divorce. Pizzo, remarried with another child from the second marriage, sought to increase Ianniello’s monthly child support payment to her from $10,000 to $75,000 per month when Plaintiff’s income increased. Pizzo and Ianniello were married in 2000. Two sons were born of the marriage in 2004 and 2008. In April 2011, the parties divorced with a marital settlement agreement providing for a $5.5 million equitable distribution to Pizzo from Ianniello’s stock options, $10,000 per month for six years in limited durational alimony and an additional $10,000 per month in child support. Defendant is a homemaker with no employment outside of the home. Plaintiff, also remarried, is an executive in a large corporation wherein his annual income fluctuates between $14 and $31 million annually plus benefits. Plaintiff argued that the $10,000 in monthly child support more than provided for the needs of the children and that the Defendant’s request was made just as her alimony was about to end in an effort to improve her own lifestyle, not that of the children as the expenses of a 10 and 13 year old did not amount to $900,000 annually. The court ordered Defendant to file a budget as per Walton v. Wisgil, 248 N.J. Super. 642 (App. Div. 1991). The court found Defendant’s budget to be more of a wish-list of extravagances which would mainly benefit the Defendant. Pursuant to the factors of N.J.S.A. 2A:34-23(a), the court noted that the child support guidelines called for $508 each week in child support which was stepped up substantially already to account for the parties’ incomes and the children want for nothing. Pursuant to the child support guidelines, if the combined net income of the parents is greater than $187,200 per annum, the court shall supplement child support with a discretionary amount based on the actual family income and the factors of N.J.S.A. 2A:34-23. The children vacation four times annually with their families, attend sports camps, enjoy country club memberships and live in luxurious residences. Additionally, the Plaintiff agreed to pay for the children's private school costs, college expenses and extracurricular activities. The court denied the Defendant’s request to modify child support and the N.J. Appellate Division affirmed. For more information on high net worth divorce, alimony, child support, or other family law matters, visit DarlingFirm.com or call 973-584-6200 to schedule a consultation and protect your rights. This blog is for informational purposes only and not intended to replace the advice of counsel.

Fleeing the Country to Avoid Alimony and Child Support

In Jonas v. Jonas, defendant Edwin Jonas, III appealed, for the eleventh time, the court’s decision in favor of Linda Jonas. Edwin Jonas, III was a prominent attorney who willfully refused to pay child support and alimony for decades, since his 1990 divorce, to the demise of his reputation and business. In his efforts to avoid payment, Edwin Jonas has removed his children from the country, lied to the court, fled jurisdiction and dissipated assets. The Defendant's appeal centers around the theme that he cannot receive a fair trial in Camden County Superior Court due to judicial prejudice against him. The Defendant's belief stems from the fact that he represented to the court that he had no intention of liquidating assets or leaving the country with the parties' children. Thereafter, Edwin Jonas, III left the country with the children, purchased a residence in the Cayman Islands and took steps to sell a convenience store he owned, causing title of several assets owned by the Defendant to be transferred into Plaintiff's name by Court Order. The idea was to create a constructive trust to ensure payment of alimony and child support. Rather than paying the sums due for support for a full twenty-eight years, the Defendant, is willing to file appeals and appear in court to try to seek an accounting from the Plaintiff. As a result of the Defendant's ongoing failure to acknowledge any wrongdoing and continue with his onslaught of appeals, the court denied the Defendant's motion. If your earnings, or those of your spouse, include commissions, bonus, expense accounts, profit sharing or other items which are irregular, it may make a substantial difference in what you pay or receive at the conclusion of your divorce. It is imperative that you consult an experienced divorce attorney to discuss your rights and obligations prior to filing for divorce. For more information about divorce, child support, alimony, property distribution or other family law matters visit DarlingFirm.com.

Do Child Support and Tuition Continue Through Grad School?

Child Support laws in New Jersey changed effective February 1, 2017. Included among the changes was the presumption of emancipation at the age of 23. In light of then upcoming changes in the child support laws, a New Jersey Superior Court judge struggled, in December, with whether a non-custodial father should be required to pay for his child’s graduate education. In J.C. v. A.C., Ocean County Superior Court Judge Lawrence Jones considered whether A.S., the father of A.A.C. and K.C. , should be required to pay for the graduate education of A.A.C. Although the N.J. Supreme Court, in Newburgh v. Arrigo, 88 N.J. 529 (1982), set forth the obligation for divorce parents to help pay for their child’s education, graduate school was not addressed in Newburgh. The parties’ settlement agreement, entered into at the time of their divorce, included that they would share equally the cost of their children’s college education but included no provision for graduate school. The Judge reasoned that, with her bachelor’s degree in accounting, A.C.C. could support herself while pursuing her master’s degree, as many others do. He determined that the intent of the legislature in revising the statute was to limit the obligations of noncustodial parents unless there was a showing of extraordinary circumstances. Although application could be made, the judge did not find that it must be granted. If you are seeking or disputing contributions toward your child’s education or other support, there are multiple factors which must be considered and it is within your best interests to consult with an experienced divorce attorney prior to taking action. For more information regarding child support, divorce, post-judgment modifications or other family law matters visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

High Income Divorce With Extra Complications

In the high income divorce of Jennifer Maynard and Chad Michna, the parties disputed child support. The parties each had a prior marriage and in each marriage a child with special needs was born. One child was born of the marriage and the parties’ relationship ended approximately 4 months thereafter. Maynard filed a Divorce Complaint seeking sole residential custody and legal custody, child support and payment of the child’s expenses. During their divorce hearing, the parties reached an agreement with regard to custody and parenting time. The plaintiff was a medical sales representative with a base salary, commission, and bonus. She also had investment income from outside business affiliations, rental property and child support. The plaintiff included her prior son’s expenses, as well as mortgage and costs of her investment properties, as expenses on her Case Information Statement. She also included the costs of a nanny at is employed 12 hours each day, and weekends. During cross-examination, plaintiff provided more accurate versions of her expenses. Michna was a director of government accounts with a base salary, commissions and a company stock appreciation rights plan and passive interest income. The defendant showed approximately $2,500 per month in expenses related to his son from a prior marriage. Michna sought to have the time period for income calculations to extend back to 2009 when he earned substantially less and Maynard made substantially more. Additionally, as the parties’ maintained a long-distance relationship during most of their marriage, Michna indicated that Maynard’s lifestyle was attributable to her family’s wealth and he could neither afford nor match such a lifestyle. The trial judge’s written opinion included income calculations from 2010 through 2012 and included child support differing from the Guidelines amount. Michna appealed and Maynard cross-appealed in Maynard v. Michna. The Appellate Division first looked to Pascale v. Pascale, 140 N.J. 583 (1995) for the basic premise that child support is to ensure the child’s basic needs are met. Pursuant to N.J.S.A. 9:2-3 and Caplan v. Caplan, 182 N.J. 250 (2005), child support is paid by the non-residential parent to assist the residential parent in raising the child with the economic means he or she would have been raised had the family remained intact. Child support may not be waived by a parent as it is the right of the child. Pascale, 140 N.J. at 591. Under Jacoby v. Jacoby, 427 N.J. Super. 109 (App. Div. 2012) and N.J.C.R. 5:6A, the Guidelines are to be followed in establishing child support. Under Harte v. Hand, 438 N.J. Super. 545 (Ch. Div. 2014), if an award in line with the Guidelines would cause injustice, the trial judge could use discretion to modify the award. Reviewing the facts of the case through binding precedent, the N.J. Appellate Division remanded the matter for recalculation of the parties’ incomes and a clear statement on the record as to whether the Guidelines were utilized, why the child support award differed from the Guidelines including adjustments to account for the fact that Maynard included her child from another marriage in the expenses utilized to calculate child support for the parties’ child and the deduction of non-work related child care. If your earnings, or those of your spouse, include commissions, bonus, expense accounts, profit sharing or other items which are irregular, it may make a substantial difference in what you pay or receive at the conclusion of your divorce. It is imperative that you consult an experienced divorce attorney to discuss your rights and obligations prior to filing for divorce. For more information about divorce, child support, alimony, property distribution or other family law matters visit DarlingFirm.com.

With Overnight Parenting Time Comes Responsibility

The NJ Superior Court addressed mid-week overnight parenting time with a non-custodial parent when there were allegations that the children’s performance in school was being hampered by the arrangement in M.C. v. P.C. The court held that the best interests of the child include the child’s educational interests. The court reasoned that when there is sufficient evidence to conclude that overnight midweek parenting time must be eliminated in furtherance of the child’s education, parenting time will be modified. There is an obligation for parents, held the court, to oversee the child’s performance of schoolwork and class preparation. The court also noted that when the parent of alternate residence lives a substantial distance from the parent of primary residence, travel time may also be reason for caution in establishing midweek overnight parenting time during the school year. When establishing custody, the best interests of your children are always paramount. It is critical that you seek an experienced family law attorney who will assist you in setting up a plan that works best for your family’s needs in order to ensure that during what can be a very difficult time for any child, they have continuity and support to the fullest extent possible. For more information about custody and parenting time, divorce, child support and other family law matters, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of counsel.

Mistake Of Party Does Not Prejudice Child's Right To Child Support

In an appeal of a decision setting the retroactive date for child support, Plaintiff, Jacqueline Kelly, sought to establish child support as of the date set forth in the parties' Property Settlement Agreement (PSA), which was the date that Plaintiff and the child vacated the marital residence. The New Jersey Superior Court, Family Part, Camden County established a retroactive date for payment of child support by Defendant, Vincent Kelly, among other relief. In September 2012, the parties were divorced and the terms of their PSA were incorporated into the final judgment of divorce. Child support was to begin at the time the parties moved to separate residences and the Plaintiff assumed the role of parent of primary residence. Upon vacating the marital residence in December 2012, the Plaintiff failed to complete certain required forms in order to allow the court to establish child support. In August 2013, the Plaintiff filed a motion to enforce the provisions of the PSA pertaining to child support. Relying on N.J.S.A. 2A:17-56.23a, the trial judge established child support retroactive to August 2013 when the Plaintiff filed her motion. The Plaintiff filed a motion for reconsideration which was denied. The Plaintiff appealed in Kelly v. Kelly. The Defendant claimed that (1) the Plaintiff's failure to complete requisite forms delayed the establishment of child support; (2) the Plaintiff sat on her rights by waiting to file the motion; and (3) N.J.S.A. 2A:17-56.23a does not provide for establishment of retroactive child support beyond the date the Plaintiff's motion was filed. The N.J. Appellate Division held that N.J.S.A. 2A:17-56.23a applied to retroactive modification of an established child support order per Kakstys v. Stevens, 442 N.J. Super. 501 (Ch. Div. 2015) and Mallamo v. Mallamo, 280 N.J. Super. 8 (App. Div. 1995) rather than the establishment of an initial support order as Kelly v. Kelly required. Further, the N.J. Appellate Division held that the Plaintiff's failure to act does not serve to deprive the child of the right to support which was negotiated to begin at the time the parties moved to separate residences. The Appellate Division restated the principal that child support is the right of the child, not the custodial parent. Gottlib v. Gottlib, 399 N.J. Super. 295 (App. Div. 2008). The Appellate Division reversed as to the matter of the retroactive date of child support and directed that child support be established as of the date the Plaintiff and child vacated the marital residence. The decisions made in divorce, by either the parties or the court in the event of trial, are long lasting and have significant consequences to both parties' and their children. If you are seeking child support or a modification of your present child support order, it is critical that you discuss your situation with an experienced divorce attorney before taking action. For more information about child support, divorce, parenting time, visitation, alimony or other family law matters in NJ visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Twins From Different Fathers - Who Pays Child Support?

In Passaic County Superior Court, Judge Sohail Mohammed decided, after hearing testimony from the mother, T.M., and experts, that A.S. was responsible for the payment of child support only for the child he fathered. T.M. gave birth to twins and sought assistance from the Passaic County Board of Social Services. In making her application, T.M. indicated she was in a relationship with A.S. and identified him as the father. The Passaic County Board of Social Services filed an application to establish the paternity of A.S. Paternity testing was ordered. At trial, the Judge heard expert testimony from the director of the Identity Testing Division of Laboratory Corp. of America that the twins were fathered by two different men during the same cycle. Judge Mohammed also heard the testimony of T.M. that she had sexual intercourse with another man within one week of having sexual intercourse with A.S. The court ruled that A.S. would pay child support for only the child he fathered. Child support, once established, continues until the child is emancipated. Barring exceptional circumstances, child support usually continues for a minimum of 18 years and can continue until a child completes graduate school in some cases. If you are seeking child support or a modification of your present child support, it is critical that you discuss your situation with an experienced divorce attorney before taking action. Also, if you do not believe you are the father of a child for which you are being asked to pay support, it is critical you consult an experienced family law attorney to learn your rights. For more information about child support, custody, divorce, parenting time, visitation, alimony or other family law matters in NJ visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Custody and Parenting Time Conditioned on Reunification Therapy

William Iozia filed a motion for parenting time after failing to see his children for almost 2 years. Kelly Krzeckowski, the mother, entered into a consent order with Iozia calling for a custody and parenting time evaluation for both parents, reunification therapy for the father and the parties 2 children, and the possibility of a substance abuse evaluation for the father. The consent order also called for the parties to share the cost of the custody and parenting time evaluator equally. Iozia sought supervised parenting time until the evaluations could be completed and successfully completed the required substance abuse evaluation to obtain the supervised parenting time but Krzeckowski claimed the substance abuse evaluation was limited. Additionally, no reunification therapy had occurred and the parties, upon return to court, received an order reserving custody issues until reunification therapy was completed and ordering the father to pay for reunification therapy costs. After attempting reunification therapy for some time and changing therapists at the request of the mother, the situation broke down. The father sought a plan for supervised parenting to be followed by unsupervised daytime parenting and ultimately unsupervised overnights every other weekend. The mother requested another substance abuse evaluation of the father. The parties were instead ordered to comply with the prior order for reunification therapy and the father was ordered to undergo a drug screening at the mother's expense. The court denied both parties' counsel fees requests but included that, should either party fail to comply with the order, the non-compliant party would be responsible for the other party's counsel fees. Krzeckowski appealed the denial of her counsel fee request and, in Iozia v. Krzeckowski, the N.J. Appellate Division upheld the decision of the court below denying counsel fees finding that the original order failed to spell out certain details relating to reunification therapy costs which could have resulted in delay without fault of either party. Child custody 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 establish custody, or for a post-judgment modification of your current child custody arrangement, it is critical that you consult with an experienced family law attorney before moving forward. For more information about child custody, post-judgment modification, parenting time, divorce, child support, 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.

Child Support Based On Imputed Income Raises Suspicions of Appellate Panel

A post-judgment order decreasing child support was entered in the Superior Court of New Jersey, Chancery Division, Essex County, without a plenary hearing to dissatisfaction of both parties in Tuman v. Tuman. The order imputed income to the defendant, Michael Tuman, decreasing his child support payment to the plaintiff and requiring the defendant to pay plaintiff, Monica Tuman, a portion of what were found to be extraordinary child-related expenses. Monica Tuman appealed and Michael Tuman cross-appealed resulting in a remand of the matter for a plenary hearing on the disputed issues in the case. At the time of their divorce, the parties entered into a Property Settlement Agreement (PSA) wherein both waived alimony and equitable distribution but the defendant, then reporting $40,000 in income from his small business, was required to pay $550 per week in child support, a substantial deviation from the Child Support Guidelines figure, to the plaintiff as well as 75% of the children’s unreimbursed medical expenses. Later, the plaintiff sought additional payment from Michael Tuman for Hebrew school, synagogue dues, day camp and other similar expenses. The matter required a plenary hearing to determine the scope of extracurricular activities contemplated in the child support payment established. The court held that the defendant was liable for payment of 1/3 of the expenses based on an income of $130,000 at that time. The court specifically avoided a “changed circumstances” analysis because neither party was actually seeking a modification in child support, only a contribution for additional expenses. Later, in the matter at hand, the plaintiff sought contribution from the defendant for their daughter’s activities, including driving lessons, car payments and college preparation costs, as well as an increase in child support due to a decrease in the defendant’s visitation and the defendant sought to reduce child support to a level within the Child Support Guidelines based on the failure of his business and a current income of $25,000 per year. hild Support Based On In its decision to remand the matter for a plenary hearing, the N.J. Appellate Division found that the judge’s questioning of the pro se plaintiff at length during an evidentiary hearing did not provide her adequate opportunity to prepare. The judge decreased child support to $404 per week but offered no logical reasoning as to why for the Appellate Division to opine on although the imputation of income is considered an “extremely fact-sensitive endeavor”. Caplan v. Caplan, 364 N.J. Super. 68, 88 (App. Div. 2003), aff’d, 182 N.J. 250 (2005). The appellate panel also found that it was inappropriate to determine certain extracurricular expenses were over and above the Child Support Guidelines without a plenary hearing. Decisions of the parties or the court in divorce matters have long-lasting implications for the parties and their children. 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.

High Net-Worth Divorce Leads To Successive Post-Judgment Motions

In a high net-worth divorce, Robin Baskin, the defendant, filed a motion to enforce litigant's rights seeking child support and alimony arrears as well as medical expenses for the children. The parties entered into a negotiated property settlement agreement (PSA) at the time of their divorce which provided, among other relief, alimony to the defendant in the amount of $17,000 per month for 78 months and child support in the amount of $3,300 per month for the parties' 3 children until such time as the children were emancipated. The children often changed residence between the parties and 2 of the parties children had great difficulties in school, which the Plaintiff cited as being due to family conflict, and were enrolled in alternate educational settings at costs of up to $80,000 annually. The Superior Court of New Jersey, Chancery Division, Family Part, Morris County ordered the plaintiff to satisfy all child support and alimony arrears as well as reimburse the defendant for the children's medical expenses but allowed the plaintiff a $20,000 credit for the plaintiff's expenses resulting from the children's difficult circumstances. The Honorable Thomas J. Critchley also awarded the defendant $12,000 in counsel fees associated with her motion. In Baskin v. Baskin, the NJ Appellate Division upheld the denial of the plaintiff's request for a retroactive modification in child support, which is barred by N.J.S.A. 2A:17-56.23(a), to the date that the children returned to his residence rather than the date of the filing of his cross-motion. Ohlhoff v. Ohlhoff, 246 N.J. Super. 1 (App. Div. 1991). The Appellate Division did determine that child support should be modified to reflect the change in custody wherein the plaintiff became the parent of primary residence and found the credit awarded by the motion judge to be unsupported by reasons as required under Heinl v. Heinl, 287 N.J. Super. 337 (App. Div. 1996). Without reasons set forth fully on the record, the Appellate Division has no basis on which to conduct a review. Finally, with regard to the defendant's counsel fees, N.J.C.R. 5:3-5(c) permits attorney fees in matters of child custody, support and motions to enforce litigant's rights. The motion judge determined that, as there were no substantial changes made in his decision, the plaintiff's motions were in bad faith but made no specific findings with regard to counsel fees. The N.J. Appellate Division found that the plaintiff was reasonable in seeking relief and vacated the counsel fee award to the defendant. The decisions made in divorce, by either the parties or the court in the event of trial, are long lasting and have significant consequences to both parties' and their children. When considering a modification, timing is crucial as you cannot obtain modification retroactively beyond the date of your application. If you have significant income or assets and are considering divorce or seeking a modification of your present child support, it is critical that you discuss your situation with an experienced divorce attorney. For more information about child support, custody, divorce, parenting time, visitation, alimony or other family law matters in NJ visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Post-Judgment Divorce Decision To Call Step-Parent "Mom" Or "Dad" Belongs To Child

In B.S. v. T.S., Superior Court Judge Lawrence Jones ruled that, in a post-judgment divorce matter, the decision whether to call a step-parent "mom" or "dad" rests solely with the child. B.S. and T.S. were divorced with a judgment calling for joint legal custody of their son, Daniel, and both parents actively participated in their child's life. B.S. ultimately began sharing a residence with his fiancee', Lori and Daniel developed a emotional bond such that Daniel opted, without encouragement, to begin calling Lori "mom". Daniel and T.S. maintained a strong bond as well which was not impacted by Daniel's interactions with Lori. In hearing the motion by T.S. to prevent Daniel from calling Lori "mom", Judge Jones noted that children of divorce often have few rights but one of those rights is certainly the choice of what to call a step-parent. In his ruling, Judge Jones did include that, in cases where the biological parent remains an active participant in the child's life, the biological parent shall always be responsible for decisions regarding the child's upbringing and that the step-parent's marriage to a child's biological parent does not, without more, confer parental rights on the step-parent. For more information regarding post-judgment modification, parental rights, custody, child support, divorce or other family law matters, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

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.

Divorce Complaint Dismissed For Lack Of Jurisdiction

Although divorce can seem like a simple proceeding at first, not only can problems arise between the parties but also in bringing the case itself. In Appelbaum v. Huff, the court granted a motion to dismiss the divorce claim on the basis that the plaintiff was not a bona fide resident of New Jersey for the statutorily required one year immediately preceding the filing of the divorce complaint. In order to the courts of NJ to have what is called subject matter jurisdiction over an individual, said individual must have been a resident for the statutory one year period. Subject matter jurisdiction is not waivable and can be raised at any time during a matter. This is but one example of the pitfalls that can cause substantial delay or even dismissal of your case. There are a multitude of similar court rules which are hard to know without substantial experience in such matters. In the event you are considering divorce, it is always important to seek the advice of an experienced family law attorney before filing an action in court. For more information about divorce, child custody, child support, alimony or other family law matters visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Child Support Arrears Effect Income Tax Deductions

Although child support arrears are do not result in a prohibition of a parent enjoying visitation or parenting time with their child, child support arrears can result in suspension of a parent's right to claim a child as a child support deduction. In Zeitlin v. Zeitlin, the New Jersey Family part refused to modify the property settlement agreement to the extent that each parent was entitled to claim one child as an exemption on their income tax returns. However, on appeal, the N.J. Appellate Division held that a parent's failure to pay child support breached their duty of good faith and fair dealing and could result in the suspension of that parent's right to claim a child as an income tax deduction. Based on the notion of good faith and fair dealing, the court suspended the father's right, under the property settlement agreement, to claim one of the children as a tax exemption. The decisions made in divorce, by either the parties or the court in the event of trial, are long lasting and have significant consequences to both parties' and their children. If you are considering divorce or seeking a modification of your present child support, it is critical that you discuss your situation with an experienced divorce attorney before taking action. For more information about child support, custody, divorce, parenting time, visitation, alimony or other family law matters in NJ visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Emancipation Requires Oral Argument

Thomas Mynes sought the emancipation of his 22-year old daughter and the concomitant termination of child support to Mary Mynes, his former spouse. The application for emancipation was terminated without a hearing and Plaintiff appealed. The parties divorce included a property settlement agreement (PSA) which addressed the termination of child support. In 2012, the Plaintiff sought emancipation of the parties two children and the Defendant did not oppose the motion but the Family Part judge determined that only the parties' son need be emancipated and no oral argument was needed. In 2014, the Plaintiff again filed for emancipation of the parties' daughter claiming that she would have been done with school had she attended full-time and the Defendant filed papers in opposition claiming the parties' daughter was still in school and seeking counsel fees. The court again did not hear oral argument, as required by N.J.C.R. 5:5-4 which requires oral argument "when significant substantive issues are raised and argument is requested." Palombi v. Palombi, 414 N.J. Super. 274 (App. Div. 2010). The judge denied the motion and denied both parties' requests for counsel fees. The judge determined that R.M. remained in school due to a time off for a medical hiatus which is not an emancipation event. The judge held that emancipation of the parties' daughter should occur in 2016. On appeal in Mynes v. Mynes, the Plaintiff claimed that a hearing was required. The N.J. Appellate Division looked to Patetta v. Patetta, 358 N.J. Super. 90 (App. Div. 2003), Keegan v. Keegan, 326 N.J. Super. 289 (App. Div. 1999) and Llewelyn v. Shewchuk, 440 N.J. Super. 207 (App. Div. 2015) in review of standards and presumptions relating to emancipation. The Family Part judge failed to address whether R.M. had moved beyond the sphere of parental influence. The judge's denial of oral argument based on the conclusion that no evidence outside the motion papers existed was misplaced as there was a question regarding the extent and reason for any interruption of the daughter's education. In light of the discrepancies in the parties' positions, the N.J. Appellate Division reversed and remanded the matter for a plenary hearing regarding the contested issues. If you are seeking or fighting the emancipation of a child, you should consult an experienced family law attorney immediately in order to protect your rights and ensure your request is viable. For more information on child support, custody, parenting time/visitation, divorce, alimony, palimony, modification of a family court order or other family or juvenile law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and in no way 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.

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.

Alimony Arrearage Modification Denied By Court

In Herman v. Herman, the Defendant argued that because he was not provided with an accounting of the Plaintiff's received alimony payments and how same were used to reduce the marital debt, his alimony payments should have been reduced and that the judge failed to order the Plaintiff to provide such an accounting. The parties were married in 1992 and the Plaintiff gave birth to a son in 1995. The parties divorced in 1999 pursuant to a final divorce judgment which incorporated a property settlement agreement (PSA). The agreement required that the Defendant pay permanent alimony of $527.90 a week to the Plaintiff with the amount decreasing thereafter upon the occasion of certain events, eventually becoming $268.00 a week. The PSA also directed that the Defendant would be fully responsible for the post-secondary educational expenses of the parties' son. In addition, a separate article of the PSA specified that the Plaintiff would pay off existing credit card debts, which amounted to $36,100.00 and that $169.00 a week of the alimony that the Plaintiff received was "intended to be paid by [plaintiff] toward [defendant's] credit card liabilities." When the accounts were paid in full, the Defendant's alimony obligations were to be reduced by $169.00 a week. The agreement also permitted either party to pay off the debt with their "own funds," and receive either a deduction or credit of $169.00 per week toward the alimony amount. After their divorce, the parties engaged in Motion practice over disputes that inevitably arose from the agreement. In 2005, the Family Court issued an Order setting the Defendant's alimony arrears and ordering that he continue to pay $268.00 a week in alimony. By 2007, the Plaintiff's attorney calculated the Defendant's total arrears to be $57,325.00. In 2008, after more Motion practice, the Defendant's alimony, child support, and counsel fees were memorialized in a judgment in the amount of $76,606.00. In 2012, the Defendant filed a Motion seeking a downward modification of his child support and the termination of his alimony due to the Plaintiff's remarriage and an adjustment of his support obligations retroactively based upon his overpayment toward marital debts. The judge terminated the Defendant's alimony obligation based upon the Plaintiff's remarriage but denied his request for a retroactive adjustment. In 2012, the Defendant's total arrears had risen to $111,735.86. In 2013, the Defendant submitted yet another Motion for a retroactive reduction in his alimony in the amount of $169.00 a week dating back to 2004. The judge issued an Order denying the Motion. In 2013, the judge granted the Plaintiff's request to compel the Defendant t pay for their son's college expenses. In 2014, the Defendant again moved for an Order compelling the Plaintiff to account for her payments of all martial debut under the provisions of the PSA and for a reduction in his support arrears. The Judge denied the Defendant's request for an accounting and denied his request for a reduction in his arrears, but granted the Plaintiff's request for Defendant to pay college expenses. The Defendant appealed. The Appellate Division affirmed the decision of the Family Court. According to the Appellate Division none of the Defendant's arguments had sufficient merit to warrant a discussion pursuant to N.J. Court Rule 2:1-3(e)(1)(E). The court found that the Defendant sought an adjustment of his alimony arrears in 2012, which was denied. He never appealed that decision he simply submitted another Motion seeking the same relief in 2013 and 2014. In addition, the Order that was under review enforced the Defendant's obligations to pay college expenses which was ordered by the Family Court in 2013, from which the Defendant failed to appeal. When the Defendant continued to submit Motions for other relief, the Plaintiff cross-moved to enforce the 2013 Order. The Defendant then raised belated challenges to that Order and the Court has the right to refuse to consider his request. Gac v. Gac, 186 N.J. 535, 546-47, 897 A.2d 1018 (2006). 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 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.

Child Custody Modified After Parties Failed To Abide By Agreement

In Myers v. Myers, the Defendant appealed from the child custody and child support provisions issued in a 2013 final divorce judgment following a trial. The Appellate Division affirmed the decision of the lower court after a careful review of the issues and the record. The parties in this case participated in a three day divorce trial in 2013. The final divorce judgment incorporated a partial stipulation of settlement which was filed in 2013. This partial settlement resolved many issues between the parties but left the issue of custody of their child and child support unresolved. Prior to the trial, in 2009, the parties executed a Consent Order that addressed the custody of their son. The child resided with each party on alternating weeks and on the weeks that each parent did not have the child they exercised parenting time on Tuesday and Thursday evenings. At trial, the Defendant proposed the same parenting time arrangement as was negotiated in the Consent Order. The Plaintiff sought a different schedule and requested that she be named the parent of primary residence. Her argument was that the prior arrangement never really took effect because after one month the Defendant moved back into the house with her and her son and that she had always been the one to take care of their son. She contended that the Defendant did very little with their son except to take him to practices and games. After the trial, the Court noted that after reviewing the relevant case law, it was guided by N.J.S.A. 9:2-4 in making a custody determination. The judge found the Plaintiff's testimony to be credible and found that the Defendant did not cooperate in the Plaintiff's attempt to negotiate an agreed upon parenting time schedule. The judge determined that from the "defendant's own testimony and his own demeanor" that a shared custody arrangement would not be appropriate. The judge awarded primary residential custody to the Plaintiff. The Defendant was given 104 overnights a year with his son and from this determination the court established that the Defendant's child support obligation would be $143 a week. N.J. Court Rule 5:6A. The Defendant appealed. According to the Appellate Division, regarding custody, the statute requires that the court consider multiple factors in determining the best interests of the child. N.J.S.A. 9:2-4(c). A court is required to place on the record the factors it considers consequential in reaching a custody decision, as the judge in this case had done. Monte v. Monte, 212 N.J. Super. 557, 565, 515 A.2d 1233 (App. Div. 1986). In this case the judge expressed a concern in the lack of cooperation between the parties mostly due to the Defendant's "problematic" behavior. The Appellate Division found that the Family Court judge clearly had the child's best interests in mind when he made the custody decision and subsequently the child support award. Therefore, the Appellate Division affirmed the decision of the lower court. 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, child support, 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.