Alimony Reduction Through Imputation Of Income Is In Court's Discretion

In the recent New Jersey Appellate Division case, Palestrini v. Palestrini, the Plaintiff, Carl Palestrini appealed from a Court Order establishing his alimony obligation and asked that the court impute income to his ex-wife, Defendant, Joann Palestrini, whom he claimed remained purposely underemployed as a means to increase her alimony award. The parties in this case were divorced in July 2012 after approximately nineteen (19) years of marriage. They were divorced pursuant to a dual judgment of divorce which incorporated a property settlement agreement (PSA). In the PSA, it was specified that the Plaintiff was, at that time, on unemployment, but required him to pay $200 a week in permanent alimony which was to be subject to an annual review to accommodate for the possibility that he would obtain a new job and there would be a resulting increase in his salary. On August 20, 2012, the Plaintiff's attorney informed the Defendant that the Plaintiff had gotten a new job with an annual salary of $65,000 a year and attached a pay stub which indicated that the Plaintiff had actually started to work at this job two days before the dual judgment of divorce was executed. The Defendant then filed a Motion with the court to increase her alimony award to $324.87 a week based upon the Plaintiff's new increased salary and based upon her part-time and varying salary of $11.00 an hour. The Plaintiff submitted a Cross-Motion arguing that the Defendant was earning approximately $20,000 a year at the time of their divorce and was subsequently choosing to be underemployed necessitating the court to impute her income back to $20,000 a year. After a hearing, the Family Court judge awarded the Defendant $325.00 a week and rejected the Plaintiff's requested relief. The Plaintiff appealed from this decision asserting that the court mistakenly exercised its discretion by failing to impute full-time income to the Defendant. The Appellate Court affirmed the decision of the Family Court. In its holding, the Appellate Division noted that it was required to defer to the Family Court's fact-finding because of the court's "special expertise" in the area of family law. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). Further, it held that: "imputation of income is a discretionary matter not capable of precise or exact determination but rather requiring a trial judge to realistically appraise capacity to earn and job availability." Storey v. Storey, 373 N.J. Super. 464, 474 (App. Div. 2004). There was no evidence that the Defendant was voluntarily underemployed and a finding of voluntary underemployment "is requisite, before considering imputation of income." Dorfman v. Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998). According to the Defendant's Case Information Statement, she had a history of working part-time and the Plaintiff failed to provide the court with information regarding the Defendant's education, training, or employability that would have provided a basis to prove purposeful underemployment. The court concluded that the Plaintiff's remaining arguments lacked sufficient merit to warrant a discussion in a written opinion pursuant to Rule 2:11-3(e)(1)(E). If you anticipate that you may want to petition the court for a modification of your alimony award or may want to seek to impute income to your ex-spouse for the purposes of re-calculating an alimony obligation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, child support, 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.

Happy Father's Day

From all of us at the Darling Law Firm to all the dads out there, Happy Father's Day.

Post-Judgment Appeal Is Rejected By the Court Because Too Much time Had Elapsed

In the post-judgment Appellate Division case, Bansal v. Bansal, the Plaintiff, Jane Bansal appealed from a Family Court Order denying her request for a default judgment against the Defendant, Ashwani Bansal, in which she requested that he be held in contempt for filing a fraudulent Case Information Statement (CIS) with the court and for seeking numerous enforcement requests of previous Court Orders regarding equitable distribution of their property - most of which were nine years old. The Appellate Court affirmed the lower court's decision because the Plaintiff's challenges were not made in a timely manner and because it found that her arguments lacked sufficient merit to warrant extended discussion pursuant to Rule 2:11-3(e)(1)(E). In its decision, the Appellate Court notes that a motion to vacate or modify a judgment should be "granted sparingly." Fineberg v. Fineberg, 309 N.J. Super. 205, 215 (App. Div. 1998). Further, the trial court's "determination under the rule warrants substantial deference, and should not be reversed unless it results in a clear abuse of discretion." US Bank Nat. Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). According to the court, an abuse of discretion arises when the court's decision is made without a rational explanation or rests on an impermissible basis. Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007). In this case, the court held that the Plaintiff had ample time and opportunity to appeal the decisions that she believed were factually or legally incorrect and she failed to do so therefore the court's consideration of these issues is precluded. If he Plaintiff believed that she would make new claims in an attempt to set aside previously judicial decisions the time to do so had long expired and she failed to offer any exceptional circumstances to justify the court's review under Rule 2:4-2, which requires that an appeal as of right be filed within forty-five (45) days of the entry of a final judgment. Therefore, the Plaintiff's attempt to "correct" provisions of a Judgment of Divorce that was issued nine years ago is legally unsustainable. If you anticipate that you may want to petition the court for a post-judgment modification of your divorce judgment, alimony award, or child support obligation it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modifications, divorce, equitable distribution, alimony, child support, or other family law matters in New Jersey visit the DarlingFirm.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Man Seeking Repayment For Divorce Mediation Costs Turns To Court

In the New Jersey Appellate Division case, Gille v. Gille, the Plaintiff Carl B. Gille appealed for a post-judgment reconsideration of a 2013 Family Court Order that directed that he and his ex-wife pay for divorce mediation in proportion to their earnings. The parties in this case were married in 1991 and had four (4) children together. In 2011, they decided to divorce. During the parties' marriage, the Plaintiff earned a substantial salary as a hedge fund manager earning close to $4,000,000 a year between 2006 and 2009. Beyond this, a substantial amount of assets were accumulated during the parties' marriage. Upon the matter being scheduled for trial, the Family Court judge suggested that the parties attempt to resolve the issues of their divorce using mediation. The parties chose a mediator and the Plaintiff paid the $7,500 retainer cost. The parties eventually reached an agreement which was incorporated into their divorce judgment in 2011. Afterward, the Plaintiff argued that he and the Defendant informally agreed to split the cost of the mediator, but was unable to provide proof of this. In a Court Order issued in 2013, the judge directed that the Plaintiff and Defendant pay the balance due to the mediator, $14,185, based upon their percentage of income for 2010 - which represented the last year in which financial information was available prior to the agreement being executed. It is from this Order that the Defendant appealed and the Appellate Division affirmed the decision of the lower court. In its decision, the Appellate Division notes that the Family Court judge's allocation of payment regarding the parties' mediator fees was considered to be a cost that was "engendered by the matrimonial proceeding," the review of which is governed under the abuse of discretion standard. Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 25 (2004); Rendine v. Pantzer, 141 N.J. 292, 317 (1995). The Plaintiff argued that the trial court erred because it did not conduct a plenary hearing to resolve the issue of the mediator's fees, but the Appellate Court found that this argument was moot because the request was not previously made and the court will only "consider questions or issues properly presented to the trial court when an opportunity for such presentation is available." Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). The Appellate Court opined, in any event, that the Plaintiff's claim that he and the Defendant had an oral agreement that they would equally share in the mediator's fees was without merit because he was unable to prove such. The court agreed with the Plaintiff that the Defendant benefited as much as he did from the mediator's services, but the issue for the court turned on the great disparity between the parties' earnings. Therefore, requiring the parties to contribute to the fee in proportion to their earnings represented a reasonable and equitable resolution and therefore no abuse of discretion was found. If you and your partner are considering mediation as a means through which to proceed with a divorce it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about mediation, divorce, post-judgment modification, 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.

Family Court Custody Decision Reversed For Abuse Of Discretion

In a recent Appellate Division case, Gladish v. Servis, the court reversed the decision of the Family Court regarding the issuance of a custody and parenting time Order because it found that the lower court judge abused her discretion. The parties in this case were never married and have a daughter who was born in 2012. One month after her birth, the Plaintiff filed a Complaint seeking joint legal custody and primary physical custody of the infant. At a hearing date held in early 2013, both parties were represented by attorneys. At that time, mediation was attempted and failed and by the end of the hearing the Plaintiff's attorney requested and was granted the right to withdraw from the case due to a breakdown in the attorney/client relationship. Before the hearing was concluded the judge inquired about the details of an interim parenting time arrangement to be utilized until the next court date. The court allowed the Defendant's attorney to read onto the record a custody and parenting time proposed order that she had prepared in advance of the hearing with the Defendant's proposed arrangement. The arrangement specified that both parties would share joint legal and physical custody and granted the Defendant overnight parenting time from Tuesday until Thursday during each week and on alternate weekends from Friday until Monday morning. Next, the judge engaged the parties in an effort to establish a negotiated resolution with regard to the matter and advised the Plaintiff on the "Tender Years Doctrine" which has yielded to both parents having equal access to the child. The Plaintiff continued to express concerns over aspects of the proposed parenting time arrangement, specifically the mid-week overnight visitation and the weekend overnights lasting until Monday morning. The judge dismissed these concerns and when the Plaintiff tried to express her concern about the parties' ability to communicate with each other, the Judge stopped her and stated: "I don't want to hear this. We're moving forward." Then, at the end of the hearing the judge asked the Plaintiff if she agreed with everything that had transpired to which she responded that she only agreed on a temporary basis until the next court date. Both parties signed a consent order and it was filed with the court. The Plaintiff hired a new attorney immediately following the hearing who moved to vacate the existing court order and to establish a child support order. The Defendant opposed the motion. After hearing oral argument in May of 2013 regarding the motions, the court denied the Plaintiff's Motion to Vacate. The court did not find any basis to grant the requested relief under Rule 4:50-1 based upon the Defendant's argument that there has not been a change in circumstances pursuant to the holding in Lepis v. Lepis, 83 N.J. 139 (1980). The court did order that the parties participate "by consent" to determine child support obligations pursuant to the New Jersey Child Support Guidelines. The Plaintiff appealed. The Appellate Court reversed and remanded the decision of the lower court. In its holding the Appellate Court noted that the "Family Court possesses broad equitable powers to accomplish substantial justice," Finger v. Zenn, N.J. Super. 438, 446 (App. Div. 2000), but the court cannot defer to a Family Court's decision in which the court abused its discretion. According to the Appellate Division, the Family Court judge involved herself in the parties' negotiations and chose positions advanced by the Defendant, despite the Plaintiff's expression of confusion and objections. In the end, the court found that the Plaintiff reluctantly accepted the custody and parenting time arrangement but only as a temporary resolution and not a permanent one - as the Plaintiff had the right and opportunity to retain new legal counsel to advise her. Therefore, the Appellate Court reversed and remanded the case back to the Family Court for further proceedings to establish a permanent custody and parenting time arrangement. 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 modify your current child custody 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, divorce, alimony, 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.

Woman Contests Judge's Decision To Make Her Pay Permanent Alimony

In the New Jersey case Sanchez v. Sanchez, a woman appealed from a trial court judge's issuance of a dual judgment of divorce that ordered her to pay permanent alimony to her husband. Following the parties' divorce trial, Judge Patricia A. Roe, J.S.C., entered a dual judgment of divorce ordering the Plaintiff wife to pay permanent alimony to the Defendant husband in the sum of $200 per week, each party was to retain their own retirement or investment accounts, and the Plaintiff was to pay the Defendant $2,500 in counsel fees from her share of the proceeds of the sale of the marital residence. The Plaintiff appealed from this decision and the Appellate Division affirmed the decision of the lower court. The parties were married in 1996 and had one child, a daughter born in 1998. The parties separated in 2010 and the Defendant moved from Jackson to Jersey City. The Plaintiff remained in the marital home with the parties' daughter and her elderly father. The Plaintiff had earned a bachelor's degree in nursing from a university in the Philippines and worked as a neonatal intensive care unit nurse at a hospital earning $92,000 a year. In 2009 and 2010 she filed separate tax returns and claimed her daughter and mortgage interest as deductions - which she did not share with the Defendant. Plaintiff admitted that she took a $28,000 loan from her 401K plan and $6,500 loan from a home equity line of credit to cover her living expenses. The Defendant earned a bachelor's degree in accounting from a university in the Philippines. In 2009 he earned nearly $65,000 which reflected his highest annual compensation. Soon after he became unemployed and was unable to find work. He received unemployment compensation until his benefits expired and his total income for 2011 was $20,000. In her appeal the Plaintiff argues that the judge erred in awarding the Defendant permanent alimony as both had worked throughout the marriage and that her income did not "significantly exceed" the Defendant's income. The Appellate Court held that: "the goal of a proper alimony award is to assist the supported spouse in achieving a lifestyle reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage." Steneken v. Steneken, 183 N.J. 290, 299 (2005). "When determining whether an award of alimony is warranted, a trial judge must issue 'specific findings on the evidence' presented, N.J.S.A. 2A:34-23(c), weighing the objective standards delineated in N.J.S.A. 2A:34-23(b)." Clark v. Clark, 429 N.J. Super. 61, 73 (App. Div. 2012). In its disposition, the Appellate Court found that the trial court judge's conclusions were amply supported by the evidence presented at trial and therefore her decision was affirmed. If you anticipate that you may want to petition the court for a modification of your alimony award or any other relief that was awarded in a final judgment of divorce it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about divorce, alimony, child support, equitable distribution, 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.

Court Compels Father To Pay College Tuition

In a recent post-judgment matrimonial case, Martin v. Martin, the NJ Appellate Court reversed a Family Court order denying the Defendant's Motion for college tuition contributions for her daughter because the Family Court judge did not conduct the proper analysis. The parties in this case were married in 1993 and subsequently divorced in 2010. The marriage yielded two children - a son and a daughter. The parties incorporated a property settlement agreement (PSA) with their final divorce judgment that specified that it was anticipated that the parties' daughter would matriculate to college in 2011 and that the son would eventually attend college. The agreement stated that any parental contribution toward the children's college expenses would be governed by the factors set forth in Newburgh v. Arrigo, 88 N.J. 529 (1982) and that the Defendant possessed the children's savings bonds for the benefit of the children and these bonds were not to be used toward the children's college expenses. The Defendant did not file a Motion for college contribution until the end of 2012, which was well into the daughter's third college semester. According to the Defendant, the delay was the result of not being able to incur any additional attorney fees and because she was hospitalized for five days during that time. The Family Court denied her Motion for contribution, in part, because of the delay. In the Defendant's appeal, she argued that the Family Court judge erred in not requiring the Plaintiff to contribute to their daughter's college expenses by improperly evaluating the factors set forth by Newburgh. According to the Appellate Division, the Family Court had "substantial discretion" in deciding the issue of contribution to the daughter's college expenses. Jacoby v. Jacoby, 427 N.J. Super 109, 116 (2012). According to this decision: "If consistent with the law, [the] award will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice." In Newburgh, the New Jersey Supreme Court established a framework for evaluating parental contribution toward a child's college expenses and instructed courts to consider the following factors: • Whether the parent, if will living with the child, would have contributed toward the costs of the higher education; • The effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education; • The amount of the contribution sought by the child for the cost of higher education; • The ability of the parent to pay that cost; • The relationship of the requested contribution to the kind of school or course of study sought by the child; • The financial resources of both parents; • The commitment to an aptitude of the child for the requested education; • The financial resources of the child, including assets owned individually or held in custodianship or trust; • The ability of the child to earn income during the school year or vacation; • The availability of financial aid in the form of college grants and loans; • The child's relationship to the paying parent; and • the relationship of the education requested to any prior training and the overall long-range goals of the child. According to the Appellate Court, the trial judge had an obligation under Newburgh and N.J.S.A. 2A:34-23(a), to consider all of these factors and in this case the judge did not meet this obligation because he did not consider all of the factors. Therefore, the case was reversed and remanded for a proper evaluation. If you anticipate that you may want to petition the court for a post-judgment modification of a lower court's order or decision with regard to the other party's college expense contribution or any other aspect of your divorce including alimony, child support or custody it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modifications, divorce, alimony, child support, custody and visitation, 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.