Post-Judgment Alimony Dispute Leads To Appeals

In Dondona v. Dondona, a case appealed out of Morris County, the Defendant appealed from a 2014 Court Order that denied her post-judgment cross-motion to increase the alimony payments being made to her by the Plaintiff. The Appellate Court reversed the decision of the lower court. The parties in this case were married in 1984 and obtained a divorce in 2008. One child was born during the marriage. The parties executed a property settlement agreement (PSA) that was incorporated into their final divorce judgment which required the Plaintiff to pay $600 a month in alimony to the Defendant until their child was emancipated, and then the alimony was to increase to $950 a month. The PSA also specified that if the circumstances between the parties changed, they would come to an agreement with respect to the change or make an application to the court to resolve the dispute. In 2009, the Defendant began living with another man and the Plaintiff stopped making his alimony payments. In 2010, the Plaintiff filed a motion to terminate his alimony obligation altogether. In 2012, the parties executed a Consent Order in which the Plaintiff agreed to pay $375 a month for alimony until further Order of the court or consent of the parties. In 2014, the Plaintiff filed a Motion to emancipate the parties' daughter and for the termination of his alimony obligation due to the Defendant's six (6) years of cohabitation. The Defendant filed a cross-motion for alimony payments of $950 as was originally set forth in the PSA. The Plaintiff also claimed that his financial circumstances had changed and he was making much less than money than when the parties divorced. The Family Court judge granted the request to emancipate the parties' daughter but denied the motion to terminate alimony. Further, the Defendant's motion for an increase in alimony to $950 was also denied, and the Plaintiff was required to continue paying $375 a month. According to the Appellate Division, it needed to determine if each party presented a prima facie case of changed circumstances to warrant a termination or modification of alimony. Lepis v. Lepis, 83 N.J. 139, 146 (1980). Both parties were seeking a change in alimony. The PSA provided that if the circumstances between the parties were to change, they could come to an agreement or request that the court make a determination. The Consent Order was an agreement between the parties to change the alimony amount at that specific time until they either came to a new agreement or a Court Order modified the amount. The Appellate Division held that both parties had provided sufficient financial information for the Family Court to order appropriate discovery and make detailed findings of fact as to a new alimony determination. Therefore, it reversed the decision of the Family Court and remanded the case back there for further proceedings to determine an appropriate alimony obligation. Being that the laws governing alimony have recently been changed, it is very important that you seek out the advice of an attorney to protect your rights an entitlements. If you think that it may be beneficial for you to petition the court for a post-judgment modification of your alimony obligation or for any other reason it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, divorce, post-judgment modification, child support, or other family law matters in New Jersey visit the DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Reduction In Child Support After Incarceration For Arrears

In Solomon v. Solomon, the Defendant appealed from a 2013 Family Court post-judgment Order that granted the Plaintiff's Motion for reconsideration to compel the Defendant to pay substantial child support arrears from his 50% share of his 401(k) or IRA and the proceeds from the sale of a timeshare property. The parties in this case were married in 1996 and had three (3) children. They executed a property settlement agreement (PSA) in 2006 which was incorporated into their final dual judgment of divorce on the same day. The PSA required the Defendant 1) to pay the Plaintiff $300 a week in child support, and $325 per week in alimony for five (5) years; 2) divide the Defendant's 401(k) equally between the parties; and (3) divide the parties' ownership and usage of their timeshare property equally. In 2007, the court assigned to the Plaintiff an amount equal to 50% of the value of the Defendant's IRA and found that the Defendant violated the Plaintiff's rights by willfully failing to turn over to her half of the 401(k) in accordance with the provisions of their PSA. In 2009, the Defendant was sentenced to seven (7) years in prison. Subsequent to his entering into the PSA but before his incarceration, he was required to pay $35 per week toward support arrears. While he was incarcerated, the Defendant submitted an application to reduce his child support payments to $5 a week, to terminate his alimony, and to terminate his payment towards arrears. He argued that his incarceration amounted to a change in circumstances. In 2011, a Family Court judge denied the Defendant's request to decrease his child support payments, but suspended the enforcement of his support obligations pending his release. By consent, the Defendant's alimony obligation was terminated retroactive to 2008. In 2011, the Defendant was released to a work house. In 2013, the Family Court issued an Order pertaining to his child support obligation to which the Defendant moved for reconsideration. The judge who heard the Motion arguments, granted the Defendant's Motion for reconsideration and ordered that 1) the Defendant maintain his 50% interest in the 401(k); 2) the parties continue to share ownership of the timeshare, 3) the parties submit current case information statements, and 4) denied the Defendant's request to stay his existing child support obligation. In the interim, the Defendant's child support obligation was increased due to a cost of living increase and another judge ordered that the Defendant pay $35 a week towards his $90,358.64 arrears. In response, the Plaintiff filed a Motion for reconsideration which was granted and the Defendant was ordered to pay half of his 401(k) or IRA toward his child support arrears and to convey his interest in the parties' time share to the Plaintiff to put towards his arrears. This Order also reduced the Defendant's child support from $366 week to $66 and ordered that he pay an additional $100 per week ward his arrears. The Defendant appealed arguing for a strict enforcement of the terms of the PSA. According to the Appellate Division, "Marital agreements are essentially consensual and voluntary and as a result, they are approached with a predisposition in favor of their validity and enforceability." Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995). Yet, in this case, the court was guided by its long-standing view that the " . . . obligation to provide child support 'is engrained in our common law, statutory, and rule-based jurisprudence.'" Colca v. Anson, 413 N.J. Super. 405, 414 (App. Div. 2010). "Child support is the right of the child and responsibility of both parents, not a child won or lost by the custodial parent from the non-custodial parent." Pascale v. Pascale, 140 N.J. 583, 591 (1995). When considering all guiding principles that inform child support decisions and its standard of review, the court was satisfied that the lower court enforced the parties' PSA to the children's best interests and therefore affirmed the decision of the Family Court. If you anticipate that it may be beneficial to you to seek a post-judgment modification of your 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, alimony, 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.

Emancipation And Alimony Termination Application Results in Child Support Modification

In Jackson v. Jackson, the Plaintiff appealed from a 2013 post-judgment matrimonial Order regarding the emancipation of the parties' daughter and the termination of alimony payments to the Defendant. The Family Court judge denied the emancipation request after finding that the Defendant's documentation showed the child was enrolled as a full-time college student and recalculated the child support obligation. N.J.S.A. 9:17B-3; Newburgh v. Arrigo, 88 N.J. 529, 543, 443 A.2d 1031 (1982); Gac v. Gac, 186 N.J. 535, 543, 897 A.2d 1018 (2006); Moehring v. Maute, 268 N.J. Super. 447, 480-81, 633 A.2d 1055 (Ch. Div. 1993). The judge also denied the Plaintiff's request to terminate alimony. On appeal, the Plaintiff challenged the income that was used to compute his child support obligation. Upon review, the Appellate Division discovered that the documentation that was relied upon by the Family Court judge to fix the Plaintiff's child support obligations revealed a gross weekly income of $1,219, which is the same amount that the Plaintiff reported on his case information statement submitted to the court. The Plaintiff's 2012 W-2 showed a gross annual income of $63,280 which is $1,217 a week. Therefore, the Appellate Court did not find any error on the N.J. Child Support Guidelines worksheet that was used to calculate the support obligation. The calculation did neglect to include the alimony paid by Plaintiff of $125 a week. According to the Appellate Court, the calculation should have deducted the alimony payment from the Plaintiff's income and included it within the Defendant's income. The child support calculation also failed to include the allocation of payments made for the child's health insurance. Therefore, the child support obligation of $183 a week was wrong and was vacated and recalculated. The Appellate Court affirmed the Family Court's Order using the Plaintiff's weekly income of $1,217 and reversed the Order that directed that the child support obligation was $183 a week and remanded the case back to the Family Court to recalculate the support accounting for alimony and the cost of health insurance. If you anticipate that it may be beneficial to you to seek a post-judgment modification of your 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, emancipation, 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.

US Supreme Court Rules In Favor Of Marriage Equality

On June 26, 2015, the United States Supreme Court ruled in Obergefell v. Hodges that under the 14th Amendment all of the states are required to license a marriage between same-sex couples as well as recognize a legally valid same-sex marriage performed in other states. In a 5-4 decision that was argued as a consolidated case to same-sex marriage bans in Michigan, Tennessee, Kentucky, and Ohio. The Court held that the United States Constitution's guarantees of due process and equal protection under the law mean that states cannot ban same-sex marriages which effectively makes gay marriage legal in all 50 states. The opinion was written by Justice Anthony Kennedy who has delivered some of the most important rulings in this nation's history concerning gay rights including Romer v. Evans, 517 U.S. 620 (1996), Lawrence v. Texas, 539 U.S. 558 (2003) and the United States v. Windsor, 570 U.S. ___ (2013). This ruling also represents the most important extension of matrimonial rights since Loving v. Virginia, 388 U.S. 1 (1967) that struck down state laws that banned inter-racial marriages. In his opinion, Justice Kennedy wrote that that hope of gay people intending to marry "is not to be condemned to live in loneliness, excluded from one of civilizations oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right." Same-Sex marriage became legal in New Jersey on October 21, 2013 following the decision in Garden State Equality v. Dow, N.J. 216, 314 (2013). If you are a gay or lesbian couple who plan on seeking a legal marriage or filing for a same-sex divorce or are simply someone who would like more information regarding the issue there are important factors that you should consider before doing so it is critical that you seek out the advice of an experienced attorney before proceeding. For more information about same-sex marriage, same-sex divorce, same-sex relationship dissolution, equitable distribution, alimony, custody and visitation, or other family law matters in New Jersey visit the DarlingFirm.com. This blog is for informational purposes and it is in no way 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.

Mother Appeals Downward Modification Of Child Support

In Litvinenko v. Ter-Saakov, the Plaintiff appealed from a Court Order with regard to adjustments that were made to the Defendant's child support obligation, as well as, an award of attorney's fees that was granted in the Defendant's favor. The Plaintiff and Defendant have one (1) child together, a son born in 2008. The Defendant relocated to the Ukraine in 2012, when the parties' son was four (4) years old. Subsequently, a Family Court judge issued an Order granting sole custody of the child to the Plaintiff and requiring the Defendant to pay child support in the amount of $463 a week. A few months later the Defendant returned from the Ukraine to attend a Motion hearing with his attorney at which the Plaintiff represented herself. Halfway through the hearing the Plaintiff requested an adjournment to seek counsel, the judge denied her request during the hearing. The Plaintiff then stated, in the courtroom, that she was going to walk out of courtroom and not participate in the proceeding. The judge warned her that doing so would result in her requested relief being denied. She walked out of the courtroom anyway. The judge proceeded with the hearing and entered an Order granting the parties shared custody of their child. The Defendant was provided with Skype parenting time three (3) times a week and one (1) week overnight vacation per year. Further, the Defendant's child support obligation was reduced to $268 a week and he was awarded $11,805 in counsel fees. The Plaintiff appealed. On appeal the Plaintiff argued that the judge abused her discretion by awarding counsel fees to the Defendant because the Defendant was a successful businessman earning a seven (7) figure salary and she further claimed that the judge erred in reducing the Defendant's child support obligation. According to the Appellate Court, a judge in a matrimonial action may award reasonable attorney's fees and shall "consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party." N.J.S.A. 2A:34-23; N.J. Court Rule 5:3-5(c). The decision to award counsel fees "in a matrimonial action rests in the discretion of the trial court[,]" Addesa v. Addesa, 392 N.J. Super. 58, 78, 919 A.2d 885 (App. Div. 2007), and will be disturbed "only on the 'rarest occasion,' and then only because of [a] clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 317, 953 A.2d 1219 (App. Div. 2008). In this case, the judge based the attorney fee award on the Plaintiff's bad faith in leaving the proceeding against the direct order of the judge. The Appellate Court held that the trial judge aptly explained her reasons for the award and the decision was well within her discretion, therefore, the award of attorney fees was affirmed. However, the Appellate Court found that the trial judge's modification of the Defendant's child support obligation was in error because the judge did not attach a copy a NJ Child Support Guidelines Worksheet or explain her reasoning for the downward modification, which is required. Capaccio v. Capaccio, 321 N.J. Super. 46, 54 n.11, 729 A.2d 253 (App. Div. 1999); N.J. Court Rule 5:6A. Therefore, the decision of the lower court was affirmed in part, reversed in part, and remanded back to the Family Court. If you believe that it may be beneficial to you to seek a post-judgment modification of your 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, parenting time, child relocation, 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 Of A Residence 'Underwater'

In Grella v. Rumer, the Defendant appealed from a provision in a 2014 Family Court Order that denied his Motion to modify the parties' property settlement agreement (PSA) regarding the equitable distribution of the parties' marital home. The Plaintiff moved out of the marital residence in 2007. According to a provision in the parties' PSA which was incorporated into their divorce judgment in 2009 the husband was to have exclusive possession of the home, and the home was to be listed for sale or the husband was to buy out the Plaintiff's portion within five (5) years of their divorce. Further, it was stated that the wife was not entitled to any equity the Defendant paid into the home after the parties separated. Five (5) years after the parties were divorced the home was appraised at $190,000 and the outstanding mortgage indebtedness at that time was $231,561 therefore the parties' mortgage was $41,000 more than the home's value. The Defendant argued that the parties were mutually mistaken in believing the home had equity when they divorced. The Plaintiff claimed that the Defendant unilaterally increased the debt on the home. Further, the fact that a particular value was not agreed upon when the parties' divorced did not mean that the parties were mistaken with regard to any equity the home may have had. According to the Appellate Court, "the doctrine of mutual mistake applies when a 'mistake was mutual in that both parties were laboring under the same misapprehension as to [a] particular, essential fact.'" Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 608, 560 A.2d 655 (1989); Beachcomber Coins, Inc. v. Boskett, 166 N.J. Super. 442, 446, 400 A.2d 78 (App. Div. 1979). In this case, the Defendant had fallen woefully short of demonstrating the clear and convincing evidence necessary to demonstrate that the parties were mistaken. Although he may have had evidence of a current lack of equity, he had not demonstrated any lack of equity in the residence in 2009 when the PSA was executed. Therefore, the Appellate Division affirmed the decision of the lower court. If you believe that a post-judgment modification to your settlement agreement regarding the equitable distribution of your property may be beneficial to you it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, 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.