FAMILY LAW - SPOUSAL SUPPORT
20-2-3657 Rains v. Rains, App. Div. (per curiam) (14 pp.) Defendant appeals from an order that terminated the obligations of plaintiff to pay alimony and maintain life insurance. After defendant's parents died, plaintiff filed a motion seeking termination or modification of his alimony and life insurance obligations based on defendant's inheritance. Although both parties requested oral argument, the motion judge denied the request. In rendering a decision as to the appropriate investment strategy and rate of return as to the inheritance, the court rejected the data submitted by the parties as well as their conclusions as to what rate of return should apply. Instead, the court concluded that the rate of return should be based upon Moody's Composite Index on A-rated Corporate Bonds, a basis determined to be appropriate in Miller v. Miller, and conducted its own research to determine the rate of return for such investments. Finding it was error for the court to exercise its discretion to deny oral argument, the appellate panel reverses and remands.
FAMILY LAW - DOMESTIC VIOLENCE
25-2-3656 E.M. v. G.M., App. Div. (per curiam) (17 pp.) Defendant appeals from a final restraining order by the Family Part pursuant to the Domestic Violence Act of 1991. Finding that the four incidents relied on by the court to find that defendant had committed domestic violence based on the petty disorderly persons offense of harassment are devoid of evidence showing defendant's purpose was to harass plaintiff and that there is no competent credible evidence that final and permanent restraints are necessary to protect plaintiff from future abuse where the court rejected plaintiff's account of physical abuse at the hands of defendant as not credible, the panel reverses.
FAMILY LAW - CHILD SUPPORT
20-2-3031 Caridi v. Copland, App. Div. (per curiam) (13 pp.) Plaintiff appeals from an order requiring that he pay one half the expenses for his daughters' private high school and college education. Plaintiff argues he was erroneously compelled to make payments for private secondary school that were not agreed upon in the comprehensive marital settlement agreement, or otherwise required under the law. The appellate panel concludes that the court erred by ordering that plaintiff pay one-half the younger daughter's future college expenses. Because it was premature, the panel reverses that order without prejudice to its renewal when the child is ready to enter college. As to the private high school tuition, the court mistakenly relied on two voluntary payments by plaintiff to impose an eight-year obligation. A private high school education is a choice parents have a right to make, and the obligation of each parent to contribute to costs of that choice should be determined equitably through an assessment of the relevant factors. The appellate panel reverses and remands for a plenary hearing. The parties may also request that the court to reconsider the fifty-fifty split of the older daughter's college expenses.
FAMILY LAW - CHILD SUPPORT - VISITATION
20-2-2989 Vukovich v. Vukovich, App. Div. (per curiam) (11 pp.) Plaintiff appeals from the final orders denying in part his post-judgment motion for relief and granting in part defendant's cross-motion in aid of litigant's rights. Plaintiff seeks review of the judge's decision to deny his application to modify his support obligation, deny him one tax exemption, and provide him with parenting time for only two days out of every three weeks. The court does not have the benefit of the case information statements or the benefit of the supporting and opposing certifications submitted by the parties. Further, both parties have submitted facts in their briefs and appendices that were not part of the record before the Family Part judge when he decided these motions. Without the case information statements and the certifications, and given the confusion as to what was actually contained in the record, the court cannot review the decision, and affirms.
WILLS AND ESTATES - GUARDIANSHIPS
38-2-2995 In the Matter of Glasser, App. Div. (per curiam) (28 pp.) These appeals involve disputes over the guardianship and finances of Lillian Glasser, between her children Mark and Suzanne. The New Jersey action involved the choice of a guardian of Lillian's person, her December 2002 will, and counsel fees. After a thirty-four day trial, Judge Waugh determined that Suzanne exercised undue influence over Lillian, and that Suzanne violated her fiduciary duty in exercising Lillian's power of attorney (POA). The judge found that Mark acted in ways that were disruptive to his mother's medical care and counter-productive to her interests. The judge determined that Lillian was incapacitated, but none of her family members should act as the guardian of her person; he appointed an attorney. All parties agreed that a neutral financial institution should act as guardian of her property. The judge determined that Suzanne should reimburse Lillian's estate for monies spent on her own counsel fees in the New Jersey litigation, and for counsel fees Suzanne spent creating a family limited partnership in Texas, which Suzanne controlled and into which she improperly transferred Lillian's assets; he denied Suzanne's application for counsel fees for the Texas litigation and ordered her to reimburse her mother's estate; he awarded some counsel fees to Mark for the litigation in Texas; and he awarded no counsel fees to Suzanne's children. He also removed Suzanne as Lillian's health care representative, except for participation in end-of-life decisions. The appellate panel finds no basis to disturb the factually well-founded and legally appropriate decisions of Judge Waugh.
FAMILY LAW - STATUTE OF FRAUDS - PALIMONY
20-2-1841 Botis v. Estate of Kudrick, App. Div. (LeWinn, J.A.D.) (17 pp.) Effective Jan. 18, 2009, the statute of frauds, N.J.S.A. 25:1-5 to -16, was amended to include palimony agreements among the types of "agreements or promises" that must be in writing and signed by the parties in order to be enforceable. N.J.S.A. 25:1-5(h); L. 2009, c. 311, § 1. This case requires us to determine whether to accord the amendment retroactive effect in a case filed against the deceased promisor's estate prior to the effective date of the amendment on an alleged palimony agreement enforceable when the complaint was filed. We conclude that the amendment applies prospectively and affirm the June 9, 2010, order denying the estate's motion to dismiss the complaint, which is before us on leave granted.
FAMILY LAW - ATTORNEYS' FEES
20-2-1837 Becker v. Becker, App. Div. (per curiam) (14 pp.) Plaintiff appeals from the order of the Family Part requiring him to pay counsel fees to defendant, the fee of a forensic accountant, and the cost of personal property and real estate appraisals. The Dual Judgment of Divorce provides that the issue of payment of counsel fees and appointed experts "is to be decided by the Court." The appellate panel affirms the order, rejecting plaintiff's argument that the judge failed to apply the proper standard for awarding counsel fees and costs. The judge carefully considered each factor set forth in Rule 5:3-5(c), the income and disposable income of the parties, their capital assets, and their ability to pay or contribute to their own counsel fees.
FAMILY LAW - ATTORNEYS' FEES
20-2-1838 Manning v. Manning, App. Div. (per curiam) (12 pp.) Plaintiff appeals from an order of the Family Part that granted defendant's application for counsel fees. As to the amount of such fees, the order provided only "Defendant's attorney's fees and costs shall be paid by Plaintiff." The appellate panel concludes that not only did the judge not make a specific award of fees in the order, but the judge's initial finding of bad faith was in error. The judge's summary statement that plaintiff acted in bad faith by failing to advise defendant of the emancipation dates of the parties' children, and that such action supports an award in excess of $9,000 in counsel fees, is not supported by the record and amounts to an abuse of discretion. The appellate panel finds that defendant was not entitled to fees, and reverses.
DOMESTIC VIOLENCE
Recent Appellate Division decision; EMB v. RFB, the court ruled that purported acts of theft by a son (56 years old) against his mother (88 years old) as well as the statement calling his mother, "a senile old b-tch" did not constitute an act of harassment within the meaning of the Prevention of Domestic Violence Act. The Court noted that theft is not one of the predicate offenses included under the act. Moreover, to qualify as an act of domestic violence, the proofs would have to demonstrate that the thefts were committed with the purpose to alarm or seriously annoy the victim. Those proofs were lacking in this case. In terms of the "old b-tch" comment, the evidence did not support the requirement that the offending remark be made with a purpose to harass the victim as opposed to simply expressing the opinion of the speaker.
FAMILY LAW - DOMESTIC VIOLENCE
20-2-1262 M.L v. J.J., App. Div. (per curiam) (9 pp.) Defendant appeals from the entry of a final restraining order against him based upon the predicate act of harassment. The parties were involved in a relationship for fifteen years and had three children. Plaintiff testified that defendant sent her a series of abusive text and email messages. Defendant hired a private investigator and put a tracking device on plaintiff's car. He sent an email to their son's teacher, with a copy to plaintiff, in which he criticized plaintiff's parenting skills and mental stability and attributed their son's behavioral issue to her "mov[ing] out of the house to pursue her relationship with her married supervisor at Merrill Lynch[.]" Defendant told plaintiff that he had contacted the human resources department at her employer to make them aware of her relationship with a supervisor. Defendant also spoke to a newspaper reporter. The appellate panel finds that the court's conclusions regarding the finding of harassment and the appropriateness of a final restraining order here are amply supported by the credible evidence.
FAMILY LAW - SPOUSAL SUPPORT
20-2-1264 S.P. v. D.M.P., App. Div. (per curiam) (19 pp.) Defendant appeals from a Judgment of Divorce (JOD) that denied her request for alimony and for equitable distribution of the pension plan of her former husband, plaintiff. The parties were married in 1985, and separated in 1990; however, plaintiff did not file his complaint for divorce until November 2008. The appellate panel finds the judge committed reversible error by using the 1990 date of separation as the dispositive date for purposes of determining defendant's entitlement to alimony and equitable distribution. The panel also finds the judge's refusal to award defendant alimony improperly ignored the disparity in the parties' income as well as defendant's serious medical and psychiatric problems. The panel reverses the portion of the JOD that denied such relief to defendant, and remands for further proceedings during which the Family Part shall reconsider the issues of alimony and equitable distribution with the year 2008 being deemed the date the marriage ended.
Parent And Child
Cain V. Cain
Appellate Division, A-4643-06T3, January 14, 2008, not approved for publication. (8 pages).
Order that denied the defendant father visitation with his 8-year-old daughter affirmed; the father was serving a five-year term for sexual assault on a minor; the father's application for visitation was governed by N.J.S.A. 9:2-4.1a, which provides that a person who has been convicted of sexual assault will not be awarded visitation with a minor child unless there is "a showing by clear and convincing evidence that it is in the best interest of the child" that visitation should be awarded; the only evidence before the Family Part on that issue was the reports from the daughter's therapist and behavioral assistant, which indicated that visitation would not be in her best interests; thus, there was substantial credible evidence in the record to support the Family Part's denial of the motion.
Parent And Child
New Jersey Division Of Youth And Family Services V. J.H.
Appellate Division, A-4255-06T4, January 14, 2008, not approved for publication. (11 pages).
Order that terminated the defendant mother's parental rights to her son affirmed; there was ample support for the Family Part's determination that the plaintiff Division of Youth and Family Services had established by clear and convincing evidence (1) that the son had been harmed by the mother's "persistent substance abuse" and "failure to provide a safe and stable home," (2) that the mother was unable or unwilling to eliminate the harm to her son, (3) that DYFS had made reasonable efforts to assist the mother in correcting the circumstances that led to her son's placement outside of the home, and (4) that termination of the mother's parental rights would not do more harm than good; the Appellate Division declined to address the mother's argument that DYFS had violated the Child Placement Bill of Rights Act by placing the son in foster care, rather than with his maternal uncle and half-brother, because the issue was moot.
Parent And Child
New Jersey Division Of Youth And Family Services V. D.h.
Appellate Division, A-3802-06T4, January 14, 2008, not approved for publication. (27 pages).
Order that terminated the defendant mother's parental rights and that awarded guardianship, care, custody, and control of the mother's 5-year-old daughter to the plaintiff Division of Youth and Family Services affirmed; the Appellate Division rejected the mother's arguments (1) that the Family Part had erred by concluding that DYFS had establish that she was unwilling or unable to remedy the harm that had caused her daughter's removal because the Family Part essentially had shifted the burden of proof by requiring that she demonstrate that she would remain drug-free, rather than requiring that DYFS demonstrate the likelihood of her relapse into addiction, (2) that the Family Part had not considered "the alternative of continued temporary placement with relatives" until reunification could be achieved, and (3) that the Family Part erred by concluding that DYFS had failed to establish that termination of the mother's parental rights would not do more harm than good.
Drunk Driving
State V. Conroy
Appellate Division, A-2384-06T5, approved for publication January 9, 2008. (15 pages).
A defendant who has three prior convictions for driving while intoxicated is entitled to the benefit of the 10-year step-down provision in N.J.S.A. 30:4-50(a)(3) on a fourth conviction where the first conviction was entered by way of an uncounseled plea.
Drunk Driving
State V. Polito
Appellate Division, A-6197-05T5 and A-1586-06T5, January 7, 2008, not approved for publication. (4 pages).
Convictions for driving while intoxicated and sentences as third offenders affirmed; the defendants argued that the 2004 amendment to N.J.S.A. 39:4-50(a)(3) - which eliminated the trial court's discretion to sentence a defendant to community service for 90 days of the 180-day prison term for a third offense and which instead granted the trial court the discretion to sentence the defendant to a 90-day in-patient alcohol rehabilitation program in lieu of 90 days of the 180-day prison term - was an unconstitutional ex post facto law as applied to their sentences; the amendment was enacted before the defendants had committed their offenses; thus, the amendment's application to their sentences did not violate the New Jersey or federal constitutional prohibitions against ex post facto laws.
Husband And Wife
Sender V. Sender
Appellate Division, A-2088-06T3, January 7, 2008, not approved for publication. (15 pages). Post-divorce-judgment order that reduced the defendant ex-husband's child support and alimony obligations and that allocated the parties' obligations for the education expenses of their children remanded for reconsideration; the ex-husband argued that the Family Part had erred by failing to order a greater reduction in child support and alimony and by allocating an excessive portion of the education expenses to him; the Appellate Division found "merit in some of the arguments" that the ex-husband had advanced; the Family Part erred by considering incomes earned by physicians as part of its basis for imputing income to the ex-husband at a time when his medical license was suspended and he was legally prohibited from practicing medicine; furthermore, it was inappropriate for the Family Part to set the percentage allocation of the education expenses in accordance with the parties income without considering other relevant factors.
