Alimony Motion Dismissed For Discovery Violations

Null v. Null involved an alimony matter on appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County. The parties married in 1978, had two children in 1982 and 1984 respectively, and were divorce in 2005. They entered into a negotiated property settlement agreement (PSA) at the time of divorce including permanent alimony from the Defendant to the Plaintiff in the amount of $6,000 per month based on his annual income of $175,000 with a formula for calculating increases and caps in alimony as Defendant's income fluctuated. In 2007, the Defendant unilaterally reduced his alimony payment to $5,000 monthly. Thereafter, a series of motions were filed resulting in the establishment of arrearages and discovery orders which the Defendant continuously ignored with the result of sanctions in the form of counsel fees to the Plaintiff, Lynn Null. The Defendant, William Null appealed portions of the family part order dismissing with prejudice his motion to terminate alimony, or reduce his obligation; vacating orders granting a plenary hearing and appointing a forensic accountant; ordering him to resume alimony payments, including arrears and counsel fees to Plaintiff; and denying his motion for reconsideration. Defendant cited abuse of discretion by the judge in the dismissal of his motion with prejudice. Plaintiff cross-appealed for a recalculation of the alimony arrearage. Although the "absolute sanction" of dismissal is to be utilized sparingly under Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499 (1995). The N.J. Appellate Division looked to Zaccardi v. Becker, 88 N.J. 245 (1982) which held that discovery rules are designed to facilitate and provide uniformity to litigation. Additionally, under Summit Tr. Co. v. Baxt, 333 N.J. Super. 439, 450 (App. Div.), cert. denied, 165 N.J. 678 (2000), courts have the authority to impose sanctions for violations that fly in the face of the rules. Rule 4:23-5 and Rule 4:23-2 permit dismissal with prejudice only after permitting a party opportunity to remedy the discovery violations. Casinelli v. Manglapus, 181 N.J. 354, 365 (2004) defined that the court must assess the "willfulness of the violation, the ability of [the party] to produce [discovery]," prejudice to the party not in violation and the length of time before trial. The Appellate Division reviewed the fact that in cases where a party persistently violated discovery obligations they found dismissal with prejudice to be appropriate. They found that the motion judge still did not know the Defendant's actual earnings after years of ongoing litigation and that the Defendant's actions were deliberately designed to cause that result. In light of the Defendant's willful and repeated violations, the N.J. Appellate Division affirmed the dismissal with prejudice. If you are facing divorce, alimony can have lasting and substantial consequences upon your future whether you are the obligee or the obligor. It is imperative that you obtain an experienced divorce attorney for your divorce or motion for modification in order to ensure that your rights are protected. For more information about divorce, alimony, 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 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.

Equitable Distribution Under MOU Affected By Bad Faith

In Justich v. Justich, a post-judgment equitable distribution challenge, the defendant, Robert Justich, sought the full 50% he had bargained for under the negotiated memorandum of understanding (MOU) incorporated into his divorce judgment. Under the agreement, Robert and Diana Justich were to share the carrying costs of the marital residence until it could be sold and then each would receive 50% of the sale proceeds. However, the defendant failed to pay the carrying costs of the marital home leading up to the sale. The defendant claimed to have paid the costs, but the court questioned the assertions. As a result of an ongoing pattern of bad faith on the part of the defendant, the NJ Superior Court judge determined that the defendant was entitled to only 43% of the proceeds from the sale of the marital residence. The NJ Appellate Division affirmed the decision of the court below. If you are considering or seeking a divorce, it is critical that you have a full understanding of the impact it will have on your living situation, parenting time, finances and even your future lifestyle before you make any decisions. If you are contemplating divorce or are divorced and seeking post-judgment relief, you should consult with an experienced family law attorney immediately. For more information about equitable distribution, divorce, alimony, memorandum of understanding or other family law issues visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Business Asset Distribution Under Property Settlement Agreement Upheld

In Ramirez v. Ramirez, the Plaintiff appealed from trial court Orders that granted the Defendant's Motion to enforce provisions of the parties' property settlement agreement (PSA) regarding the equitable distribution of a business that was operated by the Plaintiff during the marriage. The parties in this case were married in 1995 and had two (2) daughters. They obtained a divorce in 2007 and executed a PSA that was incorporated into their final divorce judgment. According to a provision contained in the PSA the parties acknowledged that they owned a note for the sale of a laundry business that each agreed to monthly payments of $1,743 which was to be divided into three (3) equal parts between the Plaintiff, the Defendant , and the Plaintiff's brother. The Plaintiff also agreed to pay one third of this amount or $581 to the Defendant on a monthly basis for the duration of the life of the note. The business had been sold before the divorce and payments had been made on a note for over two (2) years by the purchaser of the business. The Defendant was unable to vacate the marital property at the time she had agreed to leave therefore the Plaintiff kept the first three (3) $581 payments to compensate him for rent charged to the Defendant. Then he made two (2) payments to her. During this time, the buyer of the business defaulted on his purchase and stopped paying on the note held by the Plaintiff. The Plaintiff demanded that the Defendant return his last two (2) payments because he was not being paid by the defaulting purchaser. The Defendant did not return the money. The Plaintiff responded by offering the Plaintiff one third of the business if she agreed to contribute to the debts and repairs of the business. The Defendant responded that she would simply sell her share of the business. Neither party ever made an attempt to modify or enforce their PSA for seven (7) years. According to the Plaintiff, during that time, he and his brother fixed and operated the business and then leased it to a tenant. Then the Defendant moved to enforce the provisions of the PSA demanding payment of her $581 monthly payments. The Plaintiff never offered her any portion of the rent he was receiving from the new tenant. In response to the Defendant's Motion, the Plaintiff claimed that the agreement only required him to pay the Defendant if he received payments from the purchaser on the note. According to the Appellate Division, a settlement is essentially a contract which is to be enforced as written, absent a demonstration of fraud or other compelling circumstances. Honeywell v. Bubb, 130 N.J. Super. 130, 136, 325 A.2d 832 (App. Div. 1974). Further, New Jersey has a strong public policy favoring settlement of litigation. Borough of Haledon v. Borough of N. Haledon, 358 N.J. Super. 289, 305 817 A.2d 965 (App. Div. 2003). This policy is especially strong in family disputes. Puder v. Buechel, 362 N.J. Super. 479, 488, 828 A.2d 957 (App. Div. 2003). The Family Court judge who ruled on the Motion found the Plaintiff's argument to be weak and held that the PSA was an integrated document that reflected the negotiations of the parties, where each had given up rights and compromised claims in return for other benefits and therefore its provisions should be enforced against the Plaintiff. The Appellate Court found nothing in the record to contradict the Family Court judge's ruling and it affirmed the lower court's decision. If you believe that a post-judgment modification to your settlement agreement regarding the equitable distribution of a business that you and your spouse owned it may be beneficial to you to seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, equitable distribution, alimony, 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.

Reluctance To Terminate Alimony Appealed

In Bechtold v. Clauss, the Defendant, Robert Clauss, appealed from a 2013 Superior Court of New Jersey, Family Part Order from Union County that reduced his alimony obligation and re-adjusted his child support obligation. The Defendant contends that the court should have terminated his alimony and applied any reduction in his alimony amount retroactively. The parties in this case were married in 1988 and had two (2) children. They sought and obtained a divorce in 2008. After the parties' children were born, the Plaintiff did not work outside of their home. Their final divorce judgment incorporated a property settlement agreement (PSA). The PSA specified that the Plaintiff would continue pursuing a degree to become a registered nurse and that "it [wa]s hoped that the [Plaintiff]'s anticipated vocation as a Registered Nurse would substantially impact [Defendant]'s ongoing alimony obligation to [Plaintiff]." In fact, the Defendant funded, through a dedicated interest bearing trust account, $35,000 toward the Plaintiff's schooling from his share of the marital residence. Further, the PSA stipulated that the alimony obligation shall be subject to modification based upon either party's ability to show "changed circumstances." The Plaintiff became a registered nurse in 2012 and started to work as a school nurse. In July of 2012, the Defendant filed a notice of his intention to file a Motion to modify child support within 45 days pursuant to N.J.S.A. 2A:17-56.23(a). After another five (5) months and unsuccessful mediation attempts, the Defendant filed a Motion to terminate his alimony and reduce his child support based upon changed circumstances now that his wife was employed as a school nurse. After a hearing with regard to the issues, the Family Court judge entered an Order reducing the Defendant's alimony obligation to $350 a week ($18,200 per year) and awarded the Plaintiff with $260 per week in child support. The Defendant appealed from this decision. The Defendant argued that the Family Court judge should have terminated his alimony obligation because he did not make sufficient findings with regard to the parties' marital lifestyle. According to the Appellate Division, "Whether an alimony obligation should be modified based upon a claim of changed circumstances rests within a Family Part judge's sound discretion." Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). The Appellate Court found that the judge wrote a detailed and thorough opinion on the matter in which he found that the Defendant was not a credible witness. The judge found that the Plaintiff's testimony was credible and noted that although she received $35,000 for her education, it cost over $90,000. The judge then analyzed all of the alimony factors found in N.J.S.A. 2A:34-23(b) in rendering his decision to alter the alimony obligation instead of terminating it. If you anticipate that you may want to petition the court for a post-judgment modification of your alimony or child support obligations 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.

Alimony and Child Support Garnished From Man's Wages Appealed

In the recent Appellate Division case, Reynaldo v. Reynaldo, the Defendant, Jorge Reynaldo appealed from a Family Court Order issued in 2013 that denied his Motion for reimbursement of alimony and child support amounts garnished from his accounts while he was incarcerated because they were excessive. The Appellate Division reversed the decision of the lower court and remanded the case back to the Family Court for reconsideration The parties in this case were married for approximately twenty (20) years and had three (3) children during that time. In 2009, they obtained a divorce, and the Defendant claimed that according to a property settlement agreement (PSA) filed with their divorce he was required to pay child support and permanent alimony to the Plaintiff. In 2011, he moved before the court for a reduction of these obligation amounts and was denied. In 2012, the Defendant filed a Motion in the Family Court seeking to be refunded for money that he argued was withheld improperly in violation of the Consumer Credit Protection Act (CCPA), 15 U.S.C.A. Section 1673(b). He claimed that in February, March, April, and May of 2012, the Sheriff's Office withheld too much money from his wages and that when he brought this to the Sheriff's attention, he was ignored. According to Mr. Reynaldo, he told the Sheriff's Office that his monthly salary represented his gross income and the garnishments that were being taken were excessive. Further, he also asserted that the Sheriff's Office was deducting an additional cost of $10.00 per day from his income for the cost of spending nights in jail and being subject to an electronic tracking device. The Defendant argued that these excessive garnishments left him impoverished and unable to pay his taxes, rent, food, and other necessities. The Family Court denied his Motion citing that under Bergen County Board of Services v. Steinhauer, 294 N.J. Super. 507, 517-18 (Chan. Div. 1996), an individual's support obligation could be suspended as a result of incarceration, but the court should consider the length of the sentence and the extent of other assets the obligor may have and that under this ruling suspension of support obligations would ordinarily not be appropriate when the sentence is less than one year. According to the Appellate Court, the Family Court did not address the main issue that the Defendant raised in his Motion. In fact, the Defendant did not seek a suspension of his child support and alimony obligations on the basis of his incarceration, instead, he sought reimbursement of the amounts of his income that exceeded the amount permitted by the CCPA and New Jersey law, in particular N.J.S.A. 2A:17-56.9. The court held that because the Family Court did not address the principal issue raised in the Defendant's Motion, it vacated the 2013 Order and remanded the case back to the Family Court for reconsideration on the Defendant's main issue. If you anticipate that you may want to petition the court for a modification or alteration of your child support or alimony award or have any questions regarding alimony it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about child support, alimony, post-judgment modification, 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.

In Child Relocation Case, Appeal Is Only Possible After An Adjudication

In the recent post-judgment matrimonial case, Russitano v. Russitano, John Russitano appealed from a 2012 Court Order that directed action based upon his ex-wife's Motion to relocate the parties' children to Alabama and recalculate his child support obligation. The Appellate Court could not rule on appeal because the Family Court Order did not issue a final disposition on issues involved with the case. The parties in this case were married in 2000 and three (3) children were born of the marriage. On June 27, 2011, they were divorced pursuant to a Final Judgment of Divorce with their own negotiated Property Settlement Agreement (PSA) incorporated. In 2012, the Defendant, Melissa Russitano, filed a Motion with the court to relocate with the children to Alabama and to modify the parties' PSA to increase John's child support obligation. John filed a cross-motion seeking a recalculation of his child support obligation and to enforce the parenting time provisions contained in the PSA. After hearing oral argument, the Family Court judge issued an order directing that the parties engage mediation to attempt to resolve the relocation issues and the custody and parenting time issues. The judge also ordered that John's child support obligation be re-evaluated based upon his three most recent pay stubs. John appealed from this Order. The Appellate Division affirmed the decision of the lower court holding that, although John disagrees with his ex-wife's request to relocate to Alabama with their children, he failed to challenge the lower court's order referring the parties to mediation or the determination to hold a plenary hearing on the removal of the children if the parties are unable to reach a decision. The Appellate Court concluded that the Family Court judge's order on this issue was not a final disposition of the issue at the time that the appeal was filed because the court had never ruled on Melissa's Motion requesting permission to relocate with the parties' children. As such, a party is required to seek leave to appeal according to Rule 2:5-6(a), and neither party did so. As required under Rule 2:2-3(a)(1), the Appellate Court has jurisdiction to consider appeals from "final judgments of the Superior Court trial divisions." In all other cases, jurisdiction to consider an interlocutory matter is only granted upon leave of the court. Rule. 2:2-4. Therefore, this claim was dismissed. Next, regarding the child support issue, the Family Court is given substantial discretion to determine child support awards and other support obligations based upon the ruling in Foust v. Glaser, 340 N.J. Super., 312, 315 (App. Div. 2001). In this case, the Appellate Division found no reason to disturb the ruling of the Family Court as there was no basis to do so as the lower court's decision to order a recalculation of the obligation was appropriate. Disputes regarding child relocation and child support can be of the most important in family law because of the substantial impact that decisions regarding these issues will have upon the lives of the parties and their children. If you are involved in a child relocation or child support dispute it is imperative that you seek out the advice of an experienced attorney before proceeding. For more information on child relocation, child support, post judgment modification, divorce, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Party's Successive Post-Judgment Motions To Change Divorce Agreement Are Denied

In a recent New Jersey case, Dunbar v. Woods, the parties entered into a property settlement agreement ("PSA") and a custody and parenting time agreement when they divorced in 2010, and since that time the Plaintiff (husband) has made multiple, successive post-judgment motions to modify the terms of the agreement. All of the Plaintiff's motions to change the terms of the PSA have been denied by the court because they require a showing of a change in circumstances that the Plaintiff has failed to demonstrate. The Plaintiff appealed from the last Family Court order denying his request for a modification. The parties in his case were married in 2008, one day after executing a prenuptial agreement. The Plaintiff filed for a divorce in 2009 upon moving from New Jersey to Louisiana. The Defendant gave birth to the couple's twin children in 2009. In 2010, the the parties entered into the original PSA that is at issue in this case. At that time they were represented by legal counsel and the Plaintiff was unemployed. In Plaintiff's numerous post-judgment motions to significantly modify the agreement, he has requested multiple forms of relief. He has asserted that the PSA was the product of fraud and deception because the Defendant overstated her child care expenses in her case information statement (CIS). He sought to have the PSA vacated and his child support obligation reduced. The Defendant submitted cross motions indicating the Plaintiff had violated litigant's rights for not abiding by the terms of the PSA and seeking court orders denying his motions to modify the agreement. In the final order, for which the Defendant appealed to the Appellate Division, the court order denied all of the Plaintiff's requests and awarded the Defendant counsel fees in the amount of $2,100. In a statement attached to the final order the Judge specified that in order to modify the terms of the PSA the Plaintiff would have to show "a substantial change in circumstances . . . that renders the agreement no longer fair or equitable to enforce." Further, the judge specified that claims for relief requesting modification of child support under Court Rule 5:5-4 require a copy of both prior case information statements (CIS) and updated versions of the document reflecting current tax returns and other financial statements to support any claim that there is a substantial change in circumstances. In this case, the Plaintiff has failed to provide any of these documents. Finally, the court opined that the Plaintiff should be aware of the consequences under Court Rule 1:4-8 of filing multiple frivolous law suits. The Appellate Division affirmed the lower court's decision and order and noted that the Plaintiff's argument lacked any merit. If you anticipate that you may want to petition the court for a post-judgment modification of your property settlement agreement, divorce judgment, or child support obligation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modifications, divorce, prenuptial agreements, property settlement agreements, visitation & custody, 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.