Final Restraining Order Issues Upon Multiple Acts of Harassment

C.L.H. v. T.F.H. is about Defendant’s appeal of a final restraining order (FRO) entered against him upon his estranged wife’s request that the Court enter and order for same under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Defendant appealed on four points: (1) Ineffective assistance of counsel; (2) allegations of trial court error in allowing “authentication” of a perceived no contact order; (3) a conflict between testimony and the checked “No previous acts of Domestic Violence” section; and (4) lack of evidence regarding intent or predicate acts. Under the PDVA, Plaintiff was entitled to protections, as long as the other criteria were met, based on her marriage to the Defendant. The remaining criteria, set forth in Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), were also satisfied. First, the evidence demonstrated, by the requisite preponderance of the evidence standard, three acts that constituted harassment, N.J.S.A. 2C:33-4(c), a predicate act under N.J.S.A. 2C:25-19(a). Specifically, (1) the Defendant entered Plaintiff’s car while she was in church and removed an item; (2) the Defendant sent Plaintiff a text asking when she would return from a trip that he had never been notified she was taking; and (3) discovered and drove to the location Plaintiff was staying to see whether she was there. During questioning in this regard, the trial judge found the Defendant’s explanations to amount to admissions of guilt committed with the clear intent to harass the Plaintiff. With regard to the second prong of Silver, the trial judge determined that, in light of confrontations between the parties, the Plaintiff’s fear of the Defendant was reasonable and a FRO was required to protect the Plaintiff from the Defendant. The Appellate Division determined the trial judge exercised sound discretion in rendering the opinion below and affirmed, also noting that ineffective assistance of counsel is inapplicable to the matter at hand. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Grandparents' Rights Follow Specific Facts

In the grandparent rights case of C.C. v. M.H., Plaintiffs C.C. and D.C. sought visitation under the Grandparent Visitation Act, N.J.S.A. 9:2-7.1.2. The Plaintiffs based their case on the claim they were “psychological parents” to their grandchildren. Defendants have two children, ages 2 and 3. In 2013, Plaintiffs began caring for their grandchildren two days per week and they were being cared for by a nanny, and later in pre-school, three days per week. The parties dispute whether the Plaintiffs contributed some financial support to the grandchildren but do not dispute that Plaintiffs took the entire family on a vacation to Disney World. During the vacation, Plaintiffs and Defendants had a serious falling out over M.H.’s relationship with S.H. Thereafter, the grandchildren were enrolled in full-time pre-school and the Defendants relocated to a new community which Plaintiffs considered too far to visit. By September 2016, there was no contact between the Plaintiffs and grandchildren. The Plaintiffs complaint for visitation included that they “enjoyed a loving and caring relationship with their grandchildren since their birth on a daily basis”, “seeing them multiple times per week”, overnights as needed when the Defendants wanted to go out, family vacations and the like. Plaintiffs also contended that it would be likely the children would suffer irreparable harm if contact between the grandchildren and Plaintiffs was not restored. In support of their argument, Grandparents submitted a report from a psychologist that never met the grandchildren which provided generalizations in favor of the Plaintiffs’ case. Defendants filed replies and a cross-motion for restraints to keep the Plaintiffs away from the children. Defendants described the way Plaintiffs would start arguments with the Defendants in front of the children and the fact that the Defendants feared that the children would be exposed to similar treatment. The Defendants greatly disputed the amount of time with and care from the Plaintiffs. Defendants also filed a statement from M.H.’s sister indicating the Plaintiffs were often verbally abusive to family members and went for extended periods of time without seeing members of the family for that reason. The trial court determined that the grandparents failed to meet the burden of demonstrating that the children would suffer harm without the visitation and denied the grandparents relief, specifically because the grandparents did not indicate that they lived with the children. Plaintiffs appealed. The appellate division determined that Plaintiffs failed to establish “concrete harm” as set forth in Daniels v. Daniels, 381 N.J. Super. 286, 294 (App. Div. 2005). Further, pursuant to Morairty v. Bradt, 177 N.J. 84, 103 (2003), there is a fundamental right to parental autonomy in decisions affecting the “care, custody and control” of one’s own children which right shall yield only to a compelling state interest. Finding that the trial judge correctly decided that the Plaintiffs did not meet the burden of demonstrating irreparable harm, the appellate division affirmed the decision of the court below. If you are a grandparent seeking to obtain visitation or a parent fighting to prevent grandparent visitation, you should discuss your case with an experienced family law attorney in order to learn your rights. For more information about custody or grandparent visitation, visit DarlingFirm.com or call 973-584-6200 now to set up a consultation. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Psychological Parent Seeks Rights

In A.O. v. N.D., the court determined whether the plaintiff, designated the "psychological parent" of defendant's biological child was entitled to a plenary hearing with regard to an alleged agreement granting joint custody and ordering the parties to attend co-parenting therapy. The parties and the child lived together until the child was four. Plaintiff sought parenting time, custody and a designation as the child's psychological parent and the parties agreed in some regard. The parties agreed to designate an expert to produce a parenting schedule but there was continued conflict in regard to the parenting issue and plaintiff sought joint legal custody and mandatory co-parenting therapy. Defendant refused to sign a consent order giving effect to plaintiff's wishes. Plaintiff filed an application to enforce the unsigned consent order or for the court to order the same relief plaintiff sought in the consent order and defendant opposed. Defendant also acknowledged making his fiancee', not the plaintiff, the child's emergency contact. The judge denied the plaintiff's motion to enforce an unsigned consent order or grant a plenary hearing in light of the lack of evidence an agreement had been reached. The judge found no change in circumstances on which to grant plaintiff's relied but did order the parties to attend a co-parenting class. Plaintiff appealed, arguing the court erred in failing to order a plenary hearing to determine whether a verbal agreement had been reached. The NJ Appellate Division cited to numerous cases in rendering their judgment that the party seeking to enforce an agreement bears the burden of first showing some evidence of the existence of an agreement. The Appellate Division determined that, as per Harrington v. Harrington, 281 N.J. Super. 39 (1995), the agreement need not be reduced to writing to be enforceable. However, the Appellate Division also cited to the fact that an attorney's negotiations are not binding on a client unless the attorney has specific or apparent authority to enter into the settlement. U.S. Plywood Corp. v. Neidlinger, 41 N.J. 66 (1963). No matter the representations of defendant's counsel during negotiations, defendant's refusal to sign was evidence that an agreement did not exist. A designation as "pyschological parent" does not necessarily afford one the rights of a biological parent. Psychological parent is term used in many matters, from the case at hand to same-sex relationships where the non-biological parent failed to adopt to grandparents rights. If you are seeking, or trying to prevent, a designation of "psychological parent", it is critical that you obtain the advice of counsel. For more information about custody, parenting time, child support or other issues relative to children, visit DarlingFirm.com or call to schedule a consultation. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Contributing to Your Children's Education

In Fanelli v. Hnatowski, Plaintiff Daria Fanelli filed a post-judgment motion seeking contribution from her former husband, Kenneth Hnatowski, for 50% of their two children’s private school tuition as was agreed upon in the parties’ property settlement agreement. Fanelli paid the tuition for both children for 9 years without contribution by the Defendant. The parties divorced in 2005 and Plaintiff was the primary caregiver to the children, ages 15 and 16 at the time of the post-judgment motion. At the time of their divorce, the parties entered into a property settlement agreement containing, among other things, that each would pay 50% of the children’s school costs. The children have attended private school since kindergarten. In 2016, the Plaintiff sought a contribution from the Defendant in the amount of 50% of the children’s tuition or a contribution in proportion to the parties’ respective incomes. The Union County Family Part judge hearing the matter ordered the Defendant to pay 50% of the children’s tuition and Defendant appealed on the grounds that the Plaintiff’s failure to seek contribution for 9 years barred her from doing so and that the term “school costs” does not mean tuition. The Defendant directed the court to Hoefers v. Jones, 288 N.J. Super. 590, 611-12 (Ch. Div. 1994), aff’d, 288 N.J. Super. 478 (App. Div. 1996) which sets forth 14 enumerated factors which the court must evaluate when ordering payment. The factors include the ability of parents to pay, the continuity of the children’s education, the contemplation that they would participate in the program for which contribution is sought, whether enrollment was reasonable, the benefit to the child of the program, whether the party enrolling the child had the right to do so, the child’s best interests and other factors. The NJ Appellate Division held that the term “school costs” was not ambiguous and that the Defendant was required to contribute to the children’s tuition under the parties’ agreement. Thereafter, the appellate division stressed the importance of upholding resolutions negotiated by the parties in citing to Quinn v. Quinn, 225 N.J. 34, 44 (2016), Konzelman v. Konzelman, 158 N.J. 185, 193-94 (1999). The trial court determined that Defendant’s failure to object to the children’s attendance in private school for 9 years operated as implied consent. On appeal, the court found the issue of consent to be of no consequence as the Plaintiff was not seeking contribution for the 9 prior years of private school tuition and the Defendant did not seek relief compelling the children to attend public school. If you need post-judgment relief to enforce litigant’s rights in a family law case, please visit DarlingFirm.com for more information or call us now at 973-584-6200 to schedule a consultation. This blog is for informational purposes only and not intended to replace the advice of counsel.

Final Restraining Order Trial Requires Opportunity to Cross-Examine

V.M. v. A.M., involved petition for a Final Restraining Order (FRO), under the Prevention of Domestic Violence act (N.J.S.A. 2C:25-17 to -35), based on an amended Temporary Restraining Order (TRO). Plaintiff initially claimed her husband committed the crimes of sexual assault, harassment and stalking against her but then dismissed all but the sexual assault claims prior to the parties' hearing. Both parties offered testimony but the court gave neither the opportunity to cross-examine the other. While the plaintiff claimed sexual assault, the defendant maintained that the parties had consensual sex multiple times over the course of the weekend in question in spite of ongoing marital difficulties. The trial judge's ruling found both parties credible but found that the plaintiff failed to prove her allegations by a preponderance of the evidence. Plaintiff appealed on the basis that the judge must find one party credible and the other not credible, rather than finding both credible, and that the judge did not give the parties the opportunity for cross-examination. The Appellate Division held that a court can find both credible but that the opportunity for cross-examination is required in order for the trial court to fully assess the credibility of the parties. The matter was reversed and remanded for a new hearing. In a domestic violence hearing, in order to obtain a FRO, the alleged victim must demonstrate the following factors as set forth in Silver v. Silver , 387 N.J. Super. 112 (2006) before a FRO may issue: 1. The parties' were involved in a domestic or dating relationship; 2. The defendant committed a predicate act of domestic violence under N.J.S.A. 2C:25-19; and 3. A restraining order is needed to protect the alleged victim from the defendant. For more information about domestic violence or restraining orders, visit DarlingFirm.com or, if you are a victim or accused of domestic violence, call now to schedule a consultation. This blog is for informational purposes only and not intended to replace the advice of counsel.

A-4292 Protection for Car Dealers at your Expense

Assembly Bill A-4292 came to my attention today. Although it is not one of the topics I typically write about, I feel it is important for people to understand this harmful legislation. Introduced in June 2018, this bill requires auto dealerships to notify buyers of recalls on used motor vehicles for sale. That part is ok but what comes next is not palatable for consumers. The second main feature of this Bill is the limitation on attorneys’ fees in consumer fraud actions against car dealers. My first thought was that the person pointing this out to me was an attorney who makes a good living representing consumers against car dealerships under the current statute which allows for treble damages and counsel fees. My second thought was of the individuals I have represented in consumer fraud actions against car dealers. Car dealers have attorneys representing them and it is just part of the cost of doing business. Car manufacturers also have big corporate attorneys who come in to represent them. First they bring the local “big guns” and then they bring in the real “big guns” from Detroit if they lose the summary judgment motion to get out of the case. Without the car manufacturer pressuring the dealership to settle, the dealership will fight to the end to protect their reputation in their territory at great expense to the defrauded consumer. Whether it is on a contingency fee basis or through the recovery of attorneys’ fees to pay back their litigation expenses, the provision for attorneys’ fees to the consumer under the Consumer Fraud Act is often the only way a consumer can afford to fight a car dealership when a car is not sound or when they are defrauded by a dishonest dealer. I have represented individuals who would have been left with a non-working vehicle and no way to fight if they did not have a reasonable degree of certainty they would recover counsel fees at the end of the case. A-4292 still provides for compensatory damages and does permit treble damages in certain instances but it limits attorney fees to “up to $1,000 or up to one third of the amount of damages awarded to the person in interest, at the discretion of the court…” What this could mean to a consumer is that if they purchased a vehicle that suddenly became inoperable and the dealership refused to repair it based on some limited liability theory, they could sue the dealership, and sometimes the car manufacturer, and the court may award them a replacement vehicle to make them whole after litigation. After fighting summary judgment motions against the dealership and the manufacturer’s “big guns” and then going through negotiations or trial, they can find themselves with a legal bill exceeding the value of the car that was replaced. If the consumer knows that they will get only $1,000 or even one third of the amount of damages awarded, that means that, unless they received a replacement vehicle and additional punitive damages award from the court, they may have a bill for legal fees that exceeds the value of the vehicle. In summary, A-4292 serves to limit the opportunity for the consumer to sue a car dealership or manufacturer and offers a layer of protection for dealerships exercising bad practices. There are other certain presumptions created under A-4292 that are favorable to the dealerships and adverse to consumers. The Consumer Fraud Act was created to protect you from bad practices of car dealers and others. To limit its scope is to diminish the bargaining power of the consumer. For more information about legal issues, visit DarlingFirm.com.

Charitable Gift To Unintended Beneficiary

Estate planning contemplates the future based on the present. A current suit involving Rider University, the Westminster Choir College, NJ Attorney General Gurbir Grewal, Kaiwen Education and various plaintiffs demonstrates why estate planning must contemplate the currently unforeseeable. In 1935, Sophia Strong Taylor gifted 23 acres to Rider University. Westminster Choir College was founded in 1920 in Dayton, Ohio. It moved to Ithaca, New York in 1929 and to Princeton, NJ in 1935. In 1992, Westminster Choir College merged with Rider University. In 2017, Rider announced the severance of Westminster in a sale to Kaiwen Education, a subsidiary of the Chinese government for $40,000,000 with the limitation that Kaiwen must continue to operate Westminster Choir College at the Princeton location for at least 10 years. The suit has been brought by alumni, faculty and other supporters of Westminster. Their claim is that Sophia Strong Taylor donated the land with a specified intent that it support a college with a religious mission and that the Chinese government, which controls Kaiwen, imposes restrictions on religious practice. The suit seeks declaratory judgment that Taylor’s grant of the property to Westminster was conditioned upon Westminster’s continued operation as a training school for music ministers. Additionally, ownership of the Princeton campus was to transfer to the Princeton Theological Seminary in the event that Rider, or its successor, ceased using the property for the intended purpose. Howard McMorris, the last surviving board member of Westminster from the time of the Rider merger and a Plaintiff in the suit, claims that the Westminster board of trustees did not reasonably foresee Rider’s for profit sale to what the plaintiff’s call a sham charitable entity created by a for-profit entity with joint board membership between the non-profit and for-profit. Sophia Strong Taylor is no longer here to clarify her intent and the only way the court will be able to discern same is through the documents she had prepared and signed during her lifetime. Trusts and Wills may be interpreted by the court but not revised, rewritten or filled in with terms not present in the document. It is imperative that you think through the possibilities with any Trust. However, when giving to charity through a trust, at all times, include a reversionary clause in charitable giving that redirects your gift to another charity in the event that the charity of your initial choosing merges with another entity or otherwise changes their mission or purpose in a manner that is no longer congruent with your reason for benefitting them. With many, Irrevocable Trusts are created long before death but, as they are irrevocable, they may not be only be reformed as called for within the document itself at the time of drafting. Although charitable remainder trusts are excellent ways to save on taxes, the underlying charity if most often chosen for its specific benevolent purpose. For additional information regarding estate planning and trusts, please visit DarlingFirm.com or call 973-584-6200 to schedule a consultation and insure your estate planning needs are met. This blog is for informational purposes only and not intended to replace the advice of counsel.