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.

Equitable Distribution In Small Business Divorce Is Contested

In Hetherington v. Molinaro, a divorce involving a small businesss, the Defendant appealed from a trial court's confirmation of two arbitration awards, one setting the termination date of the marriage in the parties' divorce and the other one setting value and equitable distribution of a business formed and operated by the Plaintiff. The Appellate Court affirmed the decision of the lower court. The parties in his case were married in 1996. In 1999, the Plaintiff established Hetherington Information Services, LLC ("HIS") and was the sole owner. In 2006, she stopped working at this company and started working for a company called AON. After the parties separated in 2008, the Plaintiff returned to HIS and expanded the business. In 2010, the Plaintiff filed a complaint for divorce that did not go anywhere following a series of adjourned case management conferences. The parties both retained the services of forensic accountants to assess the value of HIS. The parties mutually dismissed the first complaint for divorce after deciding not to proceed in 2011. Later that year, the Plaintiff filed a second complaint for divorce and in 2012 the parties agreed to binding arbitration on the termination date of their marriage for equitable distribution purposes as well as the value of HIS. In 2013, in a written decision, the arbitrator made detailed factual and legal findings regarding the issues in his case. Pursuant to Portner v. Portner, 93 N.J. 215, 460 A.2d 115 (1983) and Painter v. Painter, 65 N.J. 196, 218, 320 A.2d 484 (1974), a divorce complaint generally marks the end of a marriage for equitable distribution purposes when the proceeding culminates in a final judgment of divorce. However, the arbitrator relied on Genovese v. Genovese, 392 N.J. Super. 215, 920 A.2d 660 (App. Div. 2007), which held that a marriage is deemed ended for equitable distribution purposes prior to the filing of a divorce complaint where the facts "provide incontrovertible evidence that the marital partnership terminated prior to the filing of the . . . complaint" . . . and where the "facts evidence more than a mere physical separation . . . ." Id. at 226-27. The arbitrator determined, by the parties' own admissions, the marriage ended by February 11, 2010 and set the termination of the marriage to that date for equitable distribution purposes. The arbitrator also awarded the Defendant with 25% interest in the value of HIS as of February 11, 2010 or $18,750. The Defendant appealed. The Appellate Division affirmed the lower court's decision to uphold the arbitrator's decision. According to the court, an arbitrator may "conduct an arbitration in such a manner as the arbitrator considers appropriate for a fair and expeditious disposition of the proceeding." N.J.S.A. 2A:23B-15(a). The arbitrator's authority includes the power of "determine the admissibility, relevance, materiality, and weight of any evidence." N.J.S.A. 2A:23B-15(a). The court concluded that it found no basis to disturb the arbitrator's award as it was consistent with the arbitrator's broad authority to conduct the proceeding and the record sufficiently supported the final award. The equitable distribution of assets is of the most emotional and complex aspects of a divorce. If you are involved in a battle over the pre- or post-judgment division of marital property, assets, or debts it is extremely important that you seek out the advice of an experienced attorney before moving forward. For more information about divorce where a party owns a business, high net-worth divorce, equitable distribution, post-judgment modification, contested divorce, alimony, 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.

Child Support Award Affirmed In Deference To Trial Court

Kummarapurugo v. Thota, is a post-judgment matrimonial action wherein the Plaintiff appealed from a Family Court Order, issued in 2014 that recalculated his child support obligation to $272 per week, arguing that the court was mistaken in its calculation. The Family Court is afforded substantial discretion to determine child support awards and other support obligations. Foust v. Glaser, 340 N.J. Super. 312, 315 (App. Div. 2001). A child support order is always "subject to review and modification on a showing of changed circumstances." Lepis v. Lepis, 83 N.J. 139, 146 (1980). "If consistent with the law, such an 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." Foust, supra, 340 N.J. Super. at 315-16. "When reviewing decisions granting or denying applications to modify child support, we examine whether, given the facts, the trial judge abused his or her discretion." J.B. v. W.B., 215 N.J. 305, 325-26 (2013). The Plaintiff argued that the Family Court's determination of his child support obligation was unfair as modified because the court failed to consider the appropriate child support guidelines factors. The Defendant claimed that the judge made sufficient findings of fact to justify the support award. The Appellate Court agreed with the Defendant and affirmed the decision of the Family Court. In this case, the Appellate Court found that although the Family Court judge's findings were not a "paradigm of the findings required by N.J.C.R. 1:7-4," the facts on the record were sufficient to support the child support award. Further, the Family Court judge appropriately addressed the recalculation of child support through the application of the statutory factors. If you believe that a post-judgment modification to your child support obligation 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, child support, child relocation, child custody, 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 if an attorney.