Happy New Year!

Wishing you a happy and safe New Year! DarlingFirm.com

Happy Thanksgiving!

Wishing you all a very safe and happy Thanksgiving! -The Darling Law Firm

Mistake Of Party Does Not Prejudice Child's Right To Child Support

In an appeal of a decision setting the retroactive date for child support, Plaintiff, Jacqueline Kelly, sought to establish child support as of the date set forth in the parties' Property Settlement Agreement (PSA), which was the date that Plaintiff and the child vacated the marital residence. The New Jersey Superior Court, Family Part, Camden County established a retroactive date for payment of child support by Defendant, Vincent Kelly, among other relief. In September 2012, the parties were divorced and the terms of their PSA were incorporated into the final judgment of divorce. Child support was to begin at the time the parties moved to separate residences and the Plaintiff assumed the role of parent of primary residence. Upon vacating the marital residence in December 2012, the Plaintiff failed to complete certain required forms in order to allow the court to establish child support. In August 2013, the Plaintiff filed a motion to enforce the provisions of the PSA pertaining to child support. Relying on N.J.S.A. 2A:17-56.23a, the trial judge established child support retroactive to August 2013 when the Plaintiff filed her motion. The Plaintiff filed a motion for reconsideration which was denied. The Plaintiff appealed in Kelly v. Kelly. The Defendant claimed that (1) the Plaintiff's failure to complete requisite forms delayed the establishment of child support; (2) the Plaintiff sat on her rights by waiting to file the motion; and (3) N.J.S.A. 2A:17-56.23a does not provide for establishment of retroactive child support beyond the date the Plaintiff's motion was filed. The N.J. Appellate Division held that N.J.S.A. 2A:17-56.23a applied to retroactive modification of an established child support order per Kakstys v. Stevens, 442 N.J. Super. 501 (Ch. Div. 2015) and Mallamo v. Mallamo, 280 N.J. Super. 8 (App. Div. 1995) rather than the establishment of an initial support order as Kelly v. Kelly required. Further, the N.J. Appellate Division held that the Plaintiff's failure to act does not serve to deprive the child of the right to support which was negotiated to begin at the time the parties moved to separate residences. The Appellate Division restated the principal that child support is the right of the child, not the custodial parent. Gottlib v. Gottlib, 399 N.J. Super. 295 (App. Div. 2008). The Appellate Division reversed as to the matter of the retroactive date of child support and directed that child support be established as of the date the Plaintiff and child vacated the marital residence. The decisions made in divorce, by either the parties or the court in the event of trial, are long lasting and have significant consequences to both parties' and their children. If you are seeking child support or a modification of your present child support order, it is critical that you discuss your situation with an experienced divorce attorney before taking action. For more information about child support, divorce, parenting time, visitation, alimony or other family law matters in NJ visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Alimony Modification Denied For Lack Of Changed Circumstances

Jill Bier was seeking an increase in the monthly alimony of $25,000 she was receiving from her former husband Robert Bier. Ms. Bier appealed the denial of her application for upward modification of alimony payments by Robert Bier. The couple's final judgment of divorce, which occurred in 2003, made it clear that Jill Bier's monthly medical expenses would increase. The New Jersey Superior Court, Somerset County, Family Part judge hearing the motion for reconsideration noted the substantial discrepancy between Jill Bier's Case Information Statement (CIS), indicating $17,194 monthly in medical expenses and the certification she submitted in support of her motion which indicated $6,000 per month in medical expenses. Jill Bier provided no documentation of her claimed expenses, her condition or any change therein since the divorce. The judge found Jill Bier's credibility to be questionable in light of conflicting claims of being nearly bed ridden yet purchasing a Mercedes E550 and incurring commuting expenses of $5,500 monthly. In Bier v. Bier, the New Jersey Appellate Division determined that no as there was no prima facie showing of changed circumstances, as required under Lepis v. Lepis, 83 N.J. 139 (1980), no evidentiary hearing was required. The Appellate Division followed Larbig v. Larbig, 384 N.J. Super. 17 (App. Div. 2006) in holding that the decision to modify an alimony obligation based on claims of changed circumstances rests with the family part judge. Finding no reason to disturb the decision, the N.J. Appellate Division affirmed the decision of the trial judge. 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.

Final Restraining Order (FRO) Cannot Be Granted Without Factual Findings

L.S. sought a final restraining order against J.P. under the Protection of Domestic Violence Act (N.J.S.A. 2C:25-17 to -34). L.S. and J.P. were both married to others but had an affair with each other for approximately 1 year before their spouses became aware. L.S. attempted to terminate the relationship in approximately May 2013 and J.P. continued to contact her. L.S. sought a final restraining order (FRO) against J.P. The FRO was granted in the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County. In L.S. v. J.P., J.P. appealed focusing on the court's finding that he had committed the act of harassment (N.J.S.A. 2C:33-4). J.P. maintained that the relationship continued, in a pattern of arguments and reconciliations, up until the time L.S. filed the charges against him. The court below focused only on the messages from L.S. to J.P. did not make findings regarding messages J.P sent to L.S. The court below made no findings about the credibility of the parties. Most importantly for J.P., the court failed to make the required finding that J.P. intended to harass or annoy L.S. In Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006), the court set forth a two step inquiry. First it must be established by the Plaintiff that a predicate act of domestic violence occurred against a person protected by the act. Thereafter, it must be determined that a restraining order is necessary to protect the victim from immediate danger or further abuse. The Appellate Division reversed and remanded for factual findings supporting the decision. If you are charged with domestic violence or you are seeking a final restraining order against an abuser, there are specific burdens of proof for both parties in proving or disproving the charges making it critical that you obtain experienced criminal defense counsel to represent you in such matters. For more information regarding domestic violence, restraining orders, assault, battery and other criminal law issues in NJ visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Twins From Different Fathers - Who Pays Child Support?

In Passaic County Superior Court, Judge Sohail Mohammed decided, after hearing testimony from the mother, T.M., and experts, that A.S. was responsible for the payment of child support only for the child he fathered. T.M. gave birth to twins and sought assistance from the Passaic County Board of Social Services. In making her application, T.M. indicated she was in a relationship with A.S. and identified him as the father. The Passaic County Board of Social Services filed an application to establish the paternity of A.S. Paternity testing was ordered. At trial, the Judge heard expert testimony from the director of the Identity Testing Division of Laboratory Corp. of America that the twins were fathered by two different men during the same cycle. Judge Mohammed also heard the testimony of T.M. that she had sexual intercourse with another man within one week of having sexual intercourse with A.S. The court ruled that A.S. would pay child support for only the child he fathered. Child support, once established, continues until the child is emancipated. Barring exceptional circumstances, child support usually continues for a minimum of 18 years and can continue until a child completes graduate school in some cases. If you are seeking child support or a modification of your present child support, it is critical that you discuss your situation with an experienced divorce attorney before taking action. Also, if you do not believe you are the father of a child for which you are being asked to pay support, it is critical you consult an experienced family law attorney to learn your rights. For more information about child support, custody, divorce, parenting time, visitation, alimony or other family law matters in NJ visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Custody and Parenting Time Conditioned on Reunification Therapy

William Iozia filed a motion for parenting time after failing to see his children for almost 2 years. Kelly Krzeckowski, the mother, entered into a consent order with Iozia calling for a custody and parenting time evaluation for both parents, reunification therapy for the father and the parties 2 children, and the possibility of a substance abuse evaluation for the father. The consent order also called for the parties to share the cost of the custody and parenting time evaluator equally. Iozia sought supervised parenting time until the evaluations could be completed and successfully completed the required substance abuse evaluation to obtain the supervised parenting time but Krzeckowski claimed the substance abuse evaluation was limited. Additionally, no reunification therapy had occurred and the parties, upon return to court, received an order reserving custody issues until reunification therapy was completed and ordering the father to pay for reunification therapy costs. After attempting reunification therapy for some time and changing therapists at the request of the mother, the situation broke down. The father sought a plan for supervised parenting to be followed by unsupervised daytime parenting and ultimately unsupervised overnights every other weekend. The mother requested another substance abuse evaluation of the father. The parties were instead ordered to comply with the prior order for reunification therapy and the father was ordered to undergo a drug screening at the mother's expense. The court denied both parties' counsel fees requests but included that, should either party fail to comply with the order, the non-compliant party would be responsible for the other party's counsel fees. Krzeckowski appealed the denial of her counsel fee request and, in Iozia v. Krzeckowski, the N.J. Appellate Division upheld the decision of the court below denying counsel fees finding that the original order failed to spell out certain details relating to reunification therapy costs which could have resulted in delay without fault of either party. 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 for a post-judgment modification of your current child custody arrangement, it is critical that you consult with an experienced family law attorney before moving forward. For more information about child custody, post-judgment modification, parenting time, divorce, 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.