WILENTZfamilylaw.wilentz.com/wp-content/.../2016-Family-Law-Case-Digest-in... · WILENTZ Attorneys...
Transcript of WILENTZfamilylaw.wilentz.com/wp-content/.../2016-Family-Law-Case-Digest-in... · WILENTZ Attorneys...
WILENTZ Attorneys at Law
ANNUAL FAMILY LAW DIGEST Summary of 2016 New Jersey Family Law Published Opinions,
N^w and Amended Court Rules and Statutes
Prepared by the Family Law Department.
David M0 Wildstdn
Joseph J. RusselL, Jr,
Jay J. Ziznewski
Joseph M. Freda, III Jeana N. Shapiro
Meridian Center I 90 Woodbi idge Center Drive Two Industrial Way West Suite 900, Box 10
Woodbridge, NJ 07095-0958 (732) 636-3000
fax (732) 855-6117
Eatontown, NJ 07724 -2265 (732) 542-4500
fax (732) 493 8387
Two Perm Centei 110 William Street 26th Floor
New York, NY 10038 3927 (212)267 3091
fax (212) 267-3828
www-farmlviaw wilentzcom Suite 910 Philadelphia, PA 19102
(215) 9^0-4000 fax (215) 636-3999
#8415772.1
TABLE OF CON l ENTS
PAGE
1 ADOPTION,.
6 ALIMONY
14 CHILD SUPPORT
16 CIVIL PROCEDURE
19 CUSTODY
24 DOMESTIC VIOLENCE
28 DIVISION OF CHILD PROTECTION & PERMANENCY
..35 EQUITABLE DISTRIBUTION.
37 GRANDPARENT VISITATION
40 AMENDED OR NEW COURT RULES
45 AMENDED OR NEW STATUTES
#8415772.1
ALPHABETICAL INDEX OF CASES
PAGE
CASES
A.M.C. V. P.B.. 148 A.3d 754 (App. Div. 2016) 24
Avelino-Catabran v. Catabran, 14 445 N.J. Super. 205 (App. Div. 2016)
Bisbing v. Bisbing, 19 445 N.J. Super. 207 (App. Div. 2016)
D.G. el al. v. K.S.. 444 N.J. Super. 423 (Ch. Div. 2015) 2 1
Fichter v. Fichter. 14 444 N.J. Super. 205 (Ch. Div. 2015)
Harrington v. Harrington. 15 446 N.J. Super. 399 (Ch. Div. 2016)
In the Matter of the Adoption of a Child by J.E.V. and D.G.V., 226 NJ. 90 (2016)
In the Matter of the Adoption of a Child by M.E.B. and K.N.. 444 N.J. Super. 83 (App. Div. 2016)
1
3
In the Matter of the Application of the State of New Jersey for the Forfeiture of Personal Weapons and Firearms Identification Card Belonging to F.M..
25 224 NJ. 487 (2016)
Innes v. Marzano-Lesnevich. 224 NJ. 584 (2016) ..23
J.S. v. D.S.. 2016 WL 7048807 (App. Div. 2016) 23
Lall v. Shivani, 1 6 2016 WL 7094156 (App. Div. 2016)
Landers v. Landers. 6 444 N.J. Super. 315 (App. Div. 2016)
Lombardi v. Lombardi. 447 N.J. Super. 26 (App. Div. 2016) 7
Major v. Maguire. 37 224 RL 1 (2016)
Matison v. Lisnvanskv. 1 8 443 N.J. Super. 549 (App. Div. 2016)
Mills v. Mills. 447 NJ. Super. 78 (Ch. Div. 2016). 9
-ii-#8415772.1
ALPHABETICAL INDEX OF CASES, contd
PACE
Mueller v. Mueller, 446 N.J. Super. 582 (Ch. Div. 2016)
New Jersey Division of Child Protection & Permanency v. K.G.. 30 445 N.J. Super. 324 (App. Diy. 2016)
New Jersey Diyision of Child Protection and Permanency y. G.8. and K.S., 28 2016 WL 6872983 (App, Div. 2016).
New Jersey Division of Child Protection and Permanency v. J.D, J.R. and J.G. In the Matter of J.D. III. 148 A.3d 128 (App. Div. 2016) 29
New Jersey Division of Child Protection and Permanency v. K.S. 32 445 N.J. Super. 384 (App. Div. 2016)
New Jersey Division of Child Protection and Permanency v. N.T., 33 445 N.J. Super. 478 (App. Div. 2016)
New Jersey Division of Child Protection and Permanency v. S.G. 34 2016 WL 7242759 (App. Div. 2016).
New Jersey Division of Protection and Permanency v. K.M., 31 444 N.J. Super. 325 (App. Div. 2016)
Quinn v. Quinn, 1 2 225 NJ, 34 (2016).
Slawinski v. Nicholas. 38 2016 WL 7094152 (App. Div. 2016)
State of New Jersey in the Interest of A.R.. 34 149 A.3d 297 (App. Div. 2016)
T'hieme v. Aucoin-Thieme. 35 224 NJ. 245 (2016)
V.H. and C.H. v. N.J. Div. of Child Protection and Permanency. 5 444 N.J. Super. 219 (Ch. Div. 2015)
STATUTES 45 N.J Stat. § 1:1-2
N.J. Stat, g 2A:4-30
N.J. Stat. $ 2C:25-19
N.J. Stat. § 37:1-13
N.J. Stat. § 52:176-194.3
RULES
45
45
45
45
40 1:13-2 40 1 : 2 1 - 1 ,40 1:38-3
#8415772.1 -iii-
ALPHABETICAL INDEX OF CASES, contd
PAGE
40 1:38-7
40 1:40.
...41 1:43.
41 2:9-1
41 5:1-4
.. 41 5:1-5
42 5:3-2
42 5:3-8
42 5:4-2
5:5-4 .42
5:5-6 42
5:5-7 42
5:6-1 43
5:7-11.
5:7-4...
5:7-4A
43 i
43 I
43
5:7-5 43
5:12-4 43
5:14-4 44
Appendix IX-A
Appendix IX-B . .
Appendix 1X-H
Appendix XXIX-A through D
44
44
44
44
#8415772.1 - I V -
ADOPTION
In the Matter of the Adoption of a Child by J.E.V. and D.G.V., 226 N.J. 90 (2016). Opinion
by Chief Justice Rabner. 1
Issue: Does an indigent parent who faces termination of her parental rights in a contested private
adoption proceeding have a right to appointed counsel?
Holding: Yes. The Court held that indigent parents facing termination of their parental rights
pursuant to the Adoption Act, N.J.S.A. 9:3-37 to 56, have a right to counsel under Article I,
Paragraph 1 of the New Jersey Constitution. In this case, the matter was reversed and remanded
to the trial court for a new trial, since the Court found that the trial court effectively denied L.A.
counsel.
Respondent, L.A., gave birth to a daughter in 2009. When her daughter was two
and one-half years old, L.A. was contemplating adoption and placed the child with the
Children's Home Society (CHS). However, after attending pre-adoption counseling, L.A.
decided she did not want to surrender her parental rights, Irrespective of L.A.'s decision to not
surrender her rights, the child was placed in short-term foster care and in 2012, the child was
placed with the petitioners, J.E.V, and D.G.V. At that same time, L.A. agreed to a service plan
with CHS, which included weekly meetings with a birth parent counselor and the goal of L,A.
attaining stable housing and work. This plan was revised five months later to incorporate
additional services for the child. In 2013, CHS contacted L.A. and stated via letter that they
planned to proceed with the child's adoption. Included with the letter were several forms to
obtain L.A.'s consent In addition, CHS advised L.A. that if she objected to the adoption she
could file a written objection with the Surrogate's Office. The end of the letter specifically
stated, "[y]ou have a right to be represented by an attorney, and you may or may not have the
#8415772.1
right to have counsel appointed to represent you. You may contact the Essex/Newark Legal
Service in Essex County in which this action is pending by calling (973) 624-4500," E.A, did not
sign any other consent forms provided to her; instead, L.A. wrote three objection letters.
J.E.V. and D.G.V. filed a complaint for adoption with the consent of the agency,
CHS, in August 2013. After receiving the complaint for adoption, the court scheduled a hearing
and notified L.A. of her right to appear, object, file written objections, and ''have counsel or
court-appointed counsel." Specifically, the notice stated: "[i]f you are unable to obtain an
attorney, you may communicate with the New Jersey Bar Association by calling (732) 249-5000.
You may also contact the Lawyer Referral Services of the Essex County Bar Association at I
(973) 533-6775, if you cannot afford an attorney, you may contact the Essex County Legal Aid
Society at (973) 622-0063 or the Essex County Surrogate's Court at (973) 621-4900. If you
qualify, the Court will appoint counsel for you free of charge." At trial, the issue of L.A.'s
representation was briefly raised but L.A. was not informed that counsel could be appointed to
represent her if she was unable to afford one. J.E.V. and D.G.V were represented, and L.A.
appeared pro se. L.A. was not aware of many of the procedural and legal aspects of trial. L.A.
did not cross examine most of the expert witness who testified and did not call an expert witness
or any other witness. L.A. did however, testify herself. At the end of trial, the court terminated
L.A.'s parental rights. L.A. appealed, and the Appellate Division appointed counsel for L.A. The
Appellate Court reversed and remanded the case for a new trial. The Court granted J.E.V. and
D.G.V.'s petition for certification
The court must terminate parental rights before a judgment of adoption may be
entered. Termination of parental rights may happen voluntarily or may be petitioned for by a
prospective parent, as in this case. If the adoption is contested, the court must ultimately
conclude whether it is in the best interest of the child to be adopted. As a result of this procedure,
the State is heavily involved in even private adoption proceedings.
#8415772.1
The Court held that an indigent parent facing termination of their parental rights
in a contested private adoption has a right to appointed counsel under the due process guarantee
of the New Jersey Constitution. This right has been found in numerous other states based on due
process or state constitutional principles, Drawing on N.J. Division of Youth and Family
Services v. B.R., 192 N.J. 301(2007) as well as Mathews v. Eldridge, 424 U.S. 319, 335 (1976),
the Court enumerates that: 1) "the termination of one's parental rights plainly implicates a
fundamental liberty interest"; 2) when parental rights are terminated they are terminated
completely and permanently; and 3) this is true regardless of whether or not the petition is
initiated by the State or by a prospective parent. As such, the risk of error resulting from an
unrepresented indigent parent is too high. However, the Court limited the reach of an indigent
parent's right to counsel to when the parent formally objects to the agency's decision to proceed
with adoption.
The Court recognized the additional burden that will be placed on publicly funded
agency's equipped to take on these types of matters, such as the Office of Parental
Representation in the Public Defender's Office. As a result, the Court directed the Legislature to
address this issue.
In the Matter of the Adoption of a Child by M.E.B. and K.N., 444 NJL Super. 83 (App. Div.
2016). Opinion by Judge Lihotz, P.J.A.D.
Issue #1: Did a trial court's dismissal of the grandparents' complaint, during an ex-parte
proceeding initiated by the parents, violate due process?
Holding #1: Yes. After the paternal grandparents filed a complaint for adoption of their
grandchild, an order for a preliminary hearing was issued and the child was declared a ward of
the court. The paternal grandparents claimed that they had been caring for the child full time
with the verbal and implied consent of the biological parents. As a result, the court awarded the
paternal grandparents temporary physical custody of the child. The biological mother and father
#8415772.1
were named defendants in the original complaint and were therefore served with the complaint
and the preliminary order. The mother then filed an ex-parte order to show cause requesting the
return of the child to her custody, and that the grandparent's be restrained from further contact
with the mother or child. During the ex-parte proceeding, the judge vacated the previous order
and dismissed the grandparent's complaint.
The paternal grandparents appealed the dismissal stating that they were not
provided notice of the order to show cause, were never served with the pleadings, and had no
knowledge that a proceeding would take place. The Appellate Division held that the dismissal of
the grandparent's complaint was improper. First, the Appellate Division noted that in civil
proceedings a litigant is entitled to a fair hearing which includes the constitutional protections of
due process. These rights are incorporated in emergent applications and include the right for a
litigant to request injunctive relief such as in this case. In a court of equity a judge has broad
discretion in granting requests for injunction relief. However, the Appellate Division held that in
an ex-parte proceeding, where an injunction is requested, the proceeding should be on the record,
with legal or factual findings supporting requests for relief, and the adverse party must have had
an opportunity to be heard. Because in this case the record was silent as to any legal or factual
findings supporting the decision, and the grandparents had no notice, the Appellate Division
reversed and remanded the decision for further proceedings.
Issue #2: Is the dismissal of an allegedly deficient adoption claim during an ex-parte proceeding
mandatory under Rule 5:10-4(b)(3).
Holding #2' No. The Appellate Division clarified that although Rule 5:10 suggests that a
prerequisite to filing an adoption complaint includes evidence that the child is in fact available
for adoption after having been placed for adoption, this does not warrant a court to dismiss a
complaint in an ex-parte hearing where facts surrounding the adoption are in dispute. "Placement
for adoption" is statutorily defined under N.J.S.A. 9:3-37 to -56 as "the transfer of custody of a
#8415772.1 -4-
child to a person for the purpose of adoption by that person." Here, the facts of why the child
was in the care of the paternal grandparents are in dispute and should have been determined by a
fact finder. The Appellate Division also held that if facts are undisputed, there are existing
procedural safeguards provided for in the rules such as summary judgment to remedy these types
of allegedly deficient complaints.
V.H. and C.H. v. N.J. Div. of Child Protection and Permanency, 444 N.J. Super. 219 (Super.
Ct. 2015). Opinion by Judge Rauh, J.S.C.
Issue #1: Should an adoption be vacated on grounds of fraud or mistake where the New Jersey
Division of Child Protection and Permanency intentionally concealed the child's family history?
Holding #1: No. Plaintiffs' claim that DCPP willfully defrauded them by failing to disclose the
i child's family history including the birth mother's history of mental disease and the birth father's
identity altogether. Therefore, Plaintiffs' argue that the order should be set aside based on
mistake or fraud under Rule 4:50-l(a). However, the Court holds that because applications under
Rule 4:50-1 (a), (b), or (c) are to be made within one year, and it has been seven years since the
judgment, this provision does not apply. Further, the Court notes that although DCPP may have
failed to disclose this information, the plaintiffs were aware of it within a year and therefore had
the opportunity to seek to vacate the adoption.
Issue #2: Should an adoption be vacated where it would be in the best interest of the child as
well as the general welfare of third parties?
Holding #2: No. The Court highlights that although a judgment of adoption may be vacated, it
will not do so except under very limited circumstances. In this case, the child has become
physically violent towards students, homicidal towards the plaintiffs and classmates, and
I sexually molested his brother. However the Court notes that these instances do not constitute
unusual circumstances warranting the court to vacate the judgment of adoption seven years later
but "rather the uncertainty of becoming a parent either through the biological or adoptive
#8415772.1
process." The Court clarifies that adoption creates a legal parent child relationship which should
generally not be severed.
ALIMONY
Landers v. Landers. 444 N.J. Super. 315 (App. Div. 2016). Opinion by Judge Li hot/.. P.J.A.D.
Issue: Under the new alimony statute, N.J.S.A. 2A;34-23(j), does the presumption that alimony
terminates upon the payor reaching full retirement age as defined by the Social Security Act
apply to support obligations that were established prior to the statute's effective date of
September 10, 2014?
Holding: No. The proper standard to be considered in applications for termination of support
obligations that arose prior to September 10, 2014 is set forth in N.J.S.A. 2A:34-23(j)(3). Section
0(3) of the statute establishes that the burden is on the alimony payor to demonstrate by a
preponderance of the evidence that "modification or termination of alimony is appropriate" in
light of the "ability of the obligee to have saved adequately for retirement as well as the
following factors in order to determine whether the obligor has demonstrated that modification
or termination is appropriate:
(a) The age and health of the parties at the time of the application;
(b) the obligor's field of employment and the generally accepted age of retirement for
those in that field;
(c) The age when the obligor becomes eligible for retirement at the obligor's place of
employment, including mandatory retirement dates or the dates upon which continued
employment would no longer increase retirement benefits;
(d) The obligor's motives in retiring, including any pressures to retire applied by the
obligor's employer or incentive plans offered by the obligor's employer;
(e) The reasonable expectations of the parties regarding retirement during the marriage or
civil union and at the time of the divorce or dissolution;
#8415772.1 -6-
(1) The ability of the obligor to maintain support payments following retirement.
including whether the obligor will continue to be employed part-time or work reduced hours;
(g) the obligee's level of financial independence and the financial impact of the obligor's
retirement upon the obligee; and
(h) Any other relevant factors affecting the parties' respective financial positions
The final judgment of divorce incorporating the settlement agreement as to alimony was
filed on June 24, 1991 ending a 22 year marriage. The payor filed a termination application
upon his reaching full retirement age, 66. The trial court terminated alimony and concluded that
the alimony recipient failed to overcome the presumption of termination under N.J.S.A. 2A:34-
23(j)(l). However, because the final judgment preceded the statute's effective date of September
10, 2014, the Appellate Division reversed and remanded for further proceedings under N.J.S.A.
2A:34-23(j)(3) and placed the burden on the payor to demonstrate that termination or
modification is appropriate.
Lombardi v. Lombardi. 447 N.J. Super. 26 (App. Div. 2016). Opinion by Judge Rothstadt,
J.A.D.
Issue: Did the trial court err by failing to include savings as a component of the alimony
awarded to the Payee/wife?
Holding; Yes, the Appellate Division held that regular savings should be considered when
determining alimony even if there is no need to create savings to secure future payment of
alimony if husband seeks to modify the award.
The parties were divorced in 2014 after a twenty year marriage during which
Payor/husband was employed full-time and the primary breadwinner. Three children were born
of the marriage, and both parties were 48 years old. After the birth of the parties' first child,
Payee/wife left her job where she was earning $80,000 to become a full-time homemaker. Once
the three children were older, wife instructed fitness classes part time earning approximately
#8415772.1
$10,000.00 per year. Husband worked as a financial analyst or portfolio manager throughout the
marriage. Husband is currently a vice president, senior portfolio manager earning an annual
salary of $1,087,000.00 to $2,275,000.00 during the last five years of the marriage. Irrespective
of Husband's substantial income, the parties made the decision to save the majority of his
earnings and live a comfortable but not extravagant lifestyle. At the time of the divorce their
savings was approximately $4,180,000.00. In addition, the parties owned the marital home
without a mortgage, funded college for all three children and avoided debt. The marital estate
was valued at 5.5 million.
The trial court determined that wife was entitled to $7,600.00 per month in
alimony based on her need of $14,516 per month for herself and the children. The court also
awarded her $500 per month in child support, imputed her with $3,600 a month from her assets.
and $583 a month from her part-time job. Although the trial court concluded that savings was a
component of the marital lifestyle, no savings component was included in the alimony award.
The trial court justified the decision to not include a savings component in its alimony
calculation as being rooted in the numerous opportunities for wife to accumulate sufficient funds
as well as the ample life insurance policy on husband's life which all allowed Plaintiff to be
protected from a reduction in alimony.
The Appellate Division disagreed. The savings component of $67,000 per month
permitted husband to maintain the marital standard of living but deprived wife of the same
opportunity for savings in the future. The Court stated that savings should be considered as a
living expense when considering an alimony award and directed the trial judge to "give
consideration of the regular savings adhered to by the parties during marriage, even if there is no
concern about protecting an alimony award from future modification by husband or cessation
upon the death of the supporting spouse" based on prior case law. The supported spouse's need
for savings has been used in the past by the court as a form of security so that given any change
#8415772,1
in circumstances he or she is protected. However, the Appellate court noted that "the protection
of income being derived through alimony is not the only reason why a supported spouse requires
savings, especially where regular savings have been part of the established marital lifestyle." The
court noted that the expenditure of money for savings is no different than spending on other
family needs. In addition, the Appellate Division noted that the Supreme Court has recognized
the necessity of including regular savings when evaluating the martial lifestyle since a savings
category has been added to the Case Information Statement form required by the courts.
Mills v. Mills, 447 N.J. Super. 78 (Super. Ct. 2016). Opinion by Judge Jones, J.S.C.
Issue #1: Is an obligor's loss of employment and subsequent obtainment of new employment at a
significantly reduced salary, grounds for a reduction in his alimony obligation pursuant to
N.J.S.A. 2A:34-23(k)?
Holding #1: Yes. Following a thirteen year marriage, the parties were divorced and agreed that
Defendant would pay Plaintiff limited duration alimony in the amount of $330.00 per week. At
the time of the agreement. Defendant was employed as a district sales manager for a company
selling residential and commercial flooring services. The agreement did not contain a provision
lor modification based upon a substantial change in circumstances, but stated that the alimony
agreement is based on Defendant's gross income of $108,000.00 per year and Plaintiffs income
of $59,000.00 per year. Two years later. Defendant involuntarily lost his job and received a one
time severance payment of $35,000.00, Within three months Defendant was able to find another
job, but at a significantly lower salary of $70,000.00 per year with a car allowance of $6,000.00
per year. Defendant accepted the position and initially continued to pay Plaintiff alimony at the
same rate with the assistance of his severance package. Defendant filed a motion to reduce his
alimony obligation based on a substantial change in circumstances once his severance pay was I
depleted.
#8415772,1 -9-
The alimony statute at N.J.S.A. 2A:34-23(k) addresses situations when an obligor
loses his or her job and therefore seeks a reduction in alimony. The statute sets forth numerous
factors for the trial court's consideration including the obligor's documented efforts to obtain
replacement employment or to pursue an alternative occupation. Additionally, the Statute
instructs the court to consider the obligor's good faith efforts to find remunerative employment at
any level and in any field. Here, the Court outlined that when considering an obligor's request
for a reduction in alimony as a result of loss of employment and subsequent employment at a
lower rate, the Court should consider: (a) if the supporting spouse's choice in accepting
replacement employment was objectively reasonable under the totality of the circumstances; and
(b) if so, what if any resulting adjustment in support is fair and reasonable to both parties under
the facts of the case?
Under this analysis, the court concluded that Defendant's loss of employment was
involuntary and that his efforts to obtain new employment were reasonable and obtained in good
faith. As such, the Court reduced Defendant's alimony obligation.
Issue #2: Are the terms of the 2014 Amended Alimony Statute, N.J.S.A. 2A;34-23(k), applicable
even though the parties were divorced prior to the September 10, 2014 effective date?
Holding #2: Yes, the Court concluded that N.J.S.A. 2A:34-23(k) was applicable. First, the Court
pointed out that the legislative intent of the statute itself was to prevent parties from unilaterally
attempting to undo contractual provisions or to prevail based solely on the 2014 amendments.
However, in this case the obligor was simply seeking to modify his alimony based on a
substantial change in circumstances, which he could do under both the case law before the 2014
amendments as well as under N.J.S.A. 2A;34-23(k). Further, the parties' agreement did not
contain a provision defining or limiting the standard for reviewing a modification of support
based upon substantial change in circumstances. In addition, the issue had not already been
litigated and adjudicated by the court in any previous post-judgment proceedings.
#8415772.1 - 1 0 -
Mueller v. Mueller, 446 N.J. Super. 582 (Super. Ct. 2016). Opinion by Judge Jones, J.S.C.
Issue: Under N.J.S.A. § 2A:34-23(j)(l)-(3), may a party seek to terminate or modify alimony
based on "prospective" retirement which would take place in five years?
Holding: No, a trial court may order prospective termination or modification of alimony when
retirement is in the near future. In Mueller, the payor filed a post-judgment motion asserting that
he was 57 years old and that he planned to retire when he was 62 years old since he would then
be entitled to receive full employment-related pension benefits. As a result, the payor sought a
court order to prospectively terminate his alimony obligation when he reached the age of 62 and
However, because his application was five years in was eligible for full pension benefits.
advance of his anticipated retirement the court took the opportunity to clarify the definition of
"prospective retirement."
The court first discussed how "ft]he amended alimony statute does not set a
specific minimum or maximum time period for obtaining an advance ruling on a prospective
retirement." Specifically, the court stated that although the statute does not provide an exact time
for prospective retirement, the spirit of the statute implies it should be in the near future. In
addition, the court noted that the obligor must present a specific and detailed plan for actual
retirement, not simply a general desire to retire. The court stated that "judicial consideration of a
prospective rather than an actual retirement" is warranted under the new statute "when (a) the
prospective retirement will take place in the near future, rather than many years after the actual
application, and (b) the applicant presents a specifically detailed, proposed plan for an actual
retirement as opposed to a non-specific, general desire to someday retire."
In this case, the payor's application to terminate alimony based on prospective
retirement in five years was denied since his request did not constitute a detailed plan for
retirement in the near future. In addition, the court also noted thai the husband's retirement at
#8415772.1 - 1 1 -
age 62 was early retirement as defined by the Social Security Act. Therefore, he did not even
fall within the defined age of retirement, further hindering his application.
The trial court further held that the payor's application could be nothing more
than an attempt to summarily modify a permanent or open durational alimony award to limited
duration alimony without having demonstrated any change in circumstance or grounds for
The court noted that this was not reflected in the legislative modification under R. 4:50-1.
history of or the amended statute itself.
Ouinn v. Quinn, 225 N.J. 34 (2016). Opinion by Judge Cuff, temporarily assigned, joined by
Chief Justice Rabner and Justices Patterson and Solomon. Justice Albin filed a dissenting
opinion in which Justice LaVecchia joins.
Issue; Where a settlement agreement expressly provides that alimony shall terminate upon a
finding of cohabitation, does the Court possess the equitable power to suspend alimony during
the period of cohabitation rather than terminating alimony on a permanent basis? Is it contrary to
public policy to enforce a provision within an Agreement terminating alimony based upon
cohabitation?
Holding; No, the trial court was required to terminate alimony as provided in the settlement
agreement. The parties settlement agreement stated that ex-husband's obligation of alimony
would terminate on his death or the ex-wife's death, remarriage, or cohabitation with another.
Approximately two years after the divorce, ex-wife was in a committed relationship and as a
result, ex-husband moved to terminate alimony. The trial court, applying the factors set forth in
!
185, 202-203 (1999), concluded that ex-wife was Konzelman v. Konzelman 158 N.J
cohabitating. However, because the cohabitation relationship had ended during the trial, the trial
court judge suspended alimony for the period of cohabitation rather than terminating alimony.
Fashioning this equitable remedy, the trial court noted the vast difference in income between the
parties and concluded that the ex-wife was "entirely dependent on her alimony for her support."
#8415772 1 - 1 2 -
The trial court also awarded ex-husband court fees and costs. The Appellate Division affirmed
the trial court's ruling, cautioning against frequently using equitable remedies but concluding
that in this case the trial court did not abuse its' discretion.
The New Jersey Supreme Court concluded that the trial court and Appellate
Division inappropriately fashioned an equitable remedy which ignored the settlement fashioned
by the parties. The Court highlighted that marital agreements, including settlement agreements.
are highly valued in the court system today and "fair and definitive arrangements arrived by
mutual consent should not be unnecessarily . . . disturbed." Here, the Court reiterated that the
parties clearly agreed that the ex-husband's obligation to pay alimony would terminate upon ex-
wife's cohabitation, and the fact that the ex-wife stopped cohabitating did not justify departing
from the agreed upon terms of the PSA. Ultimately the Court noted that settlement agreements
"that clearly and unequivocally provide for the termination of alimony upon cohabitation, are
enforceable when the parlies enter such agreements knowingly and voluntarily,"
Dissent: Justice Albin stated "a property settlement agreement in a divorce action should address
the economic consequences of a marriage's dissolution; it should not contain senseless shackles
that deprive a spouse of the right to seek love and companionship." Justice Albin suggested that
' if the cohabitation arrangement does not alter the alimony recipient's financial status, then
alimony should not terminate, and in general anti-cohabitation clauses that do not consider
economic circumstances are contrary to public policy. Disagreeing with the majority's contract
enforcement Justification, Justice Albin asserts that this contract should not be enforced since it
is contrary to public policy as it forces alimony recipients to effectively choose between
economic support and a desire to be in a romantic relationship.
#8415772.1 -13-
CHILD SUPPORT
Avelino-Catabran v. Catabran, 445 N.J. Super. 205 (App. Div. 2016). Opinion by Judge
Rothstadt, J.A.D.
Issue #1; Did the court err in fixing child support for a child already in college and a child age
17 when it adopted the calculations of one parent without making an independent analysis under
the guidelines and the statutory factors in N.J.S.A 2A;34-23(c)?
Holding #1: Yes. The Appellate Division found that the trial court's recalculation of child
support was improper because of the following: 1) failure to consider the statutory child support
factors, N.J.S.A 2A:34-23(c); 2) failure to properly calculate child support and issue specific
reasons for the recalculation; and 3) the court's exclusive reliance on Defendant's submitted
child support guidelines. Further, the trial court erred by not delineating the specific reasons as to
why a recalculation of child support, that deviated from the guidelines, was warranted.
Issue #2; When the parties have agreed to equally share college expenses in an MSA, should the
court consider the 12 Newburgh factors before the agreement is enforced?
Holding #2; No. The Agreement should be enforced unless there is a showing that the agreement
should be vacated or modified, Here, the Court held that there was no evidence of
unconscionability, fraud, or changed circumstances to warrant deviation from the terms of the
parties' settlement agreement.
Fichter v. Fichter, 444 N.J. Super. 205 (Super. Ct. 2015). Opinion by Judge Jones, J.S.C.
Issue: Does a parent who is already paying guideline-level child support for an un-emancipated
child have to contribute to the additional cost of that child's car insurance?
The 2013 amendments to the Child Support Guidelines included new Holding: Maybe.
language that generally stated transportation does not include expenses associated with a motor
vehicle purchased or leased for the intended primary use of a child subject to a support order.
However, the Guidelines do not define those expenses. Notwithstanding, the court concluded
#8415772.1 -14-
that even if one interprets the Guidelines to include the costs of car insurance, R. 5:6A allows for
a court to deviate from the Guidelines for good cause. Accordingly, the trial court held that a
court may in its discretion find good cause to deviate from the Guidelines and require parents to
contribute additional money towards a newly licensed, unemancipated child-driver's car
insurance. The court noted that good cause may include how critical car insurance coverage is
for the new driver's safety, how one cannot legally drive in New Jersey without car insurance.
and how much more expensive car insurance may be compared to other expenses, given that it
varies from case to case based on the amount of coverage sought.
In this case, the custodial parent sought contribution from the non-custodial parent
towards the cost of car insurance for their teenage child, a newly licensed driver. The non
custodial parent was already paying Guideline-level support. The trial court found the $854
annual premium in this case to be reasonable and affordable when each party contributes to it.
Accordingly, the trial court imposed an obligation on the parties to split the cost 50/50.
Harrington v. Harrington, 446 N.J. Super. 399 (Super. Ct. 2016). Opinion by Judge Jones,
J.S.C.
Issue: May a party be awarded retroactive modification of unallocated child support prior to the
date of filing for multiple children where two of the three children have been emancipated?
Maybe. The court held that in a situation where a parent seeks a retroactive Holding:
modification of unallocated child support for multiple children based upon a child's
emancipation, while there are still other unemancipated children, the court has the discretion to
retroactively modify the child support back to the date of the child's emancipation. Whether or
not the court may retroactively modify child support is subject to the following equitable factors:
(1) the amount of time since the child was emancipated and the filing date of the motion for
modification; (2) any specific reasons for the delay; (3)whether the non-custodial parent
continued to pay the same level of child support: (4)whether the custodial parent or child
#8415772 1 -15-
engaged in any fraud or misrepresentation that cause the delayed filing of the motion; (5) if the
non-custodial parent claims they were unaware the child could have been emancipated, whether
the non-custodial parent could have discovered that information with a reasonable degree of
parental diligence; (6) whether proposed retroactive modification of child support over length
period of time would be unduly cumbersome and complicated; (7) whether the custodial parent
previously refrained from seeking to enforce or increase non-custodial parent's other financial
obligations; (8) whether the non-custodial parent is seeking a credit against unpaid arrears or
actual re-payment of child support; (9) the estimated amount of child support that the non
custodial parent seeks and if that amount would cause the custodial parent financial hardship;
and (10) any other factors the court deems appropriate. The trial court scheduled a plenary
hearing to review and consider the comparative equities of whether to retroactively modify the
child support award.
CIVIL PROCEDURE
Lali v. Shivani, 2016 WL 7094156 (App. Div. 2016). Opinion by Judge Lihotz, P.J.A.D,
Issue: Did the Family Part err by exercising continuous exclusive jurisdiction pursuant to the
Uniform Interstate Family Support Act, NJ.S.A. 2A:4-10,124 to 30.301, by denying
reconsideration of an order modifying Defendant's child support obligation when Defendant
relocated to North Carolina, the child's home state, and none of the parties continued to live in
New Jersey.
Holding: No, the Family Part acted within its authority to exercise continuing exclusive
jurisdiction pursuant to the Uniform Interstate Family Support Act, permitting the modification
of the previously issued child support order.
The parties were divorced and Plaintiff was awarded sole legal and residential
custody of their only child. Defendant had limited parenting time. In 2013, Plaintiff secured
employment in North Carolina and sought to relocate there with the child. Plaintiff s application
#8415772.1 - 1 6 -
was granted, an order was entered delineating modified parenting time in New Jersey and North
Carolina, and child support was reduced as a result of the cost of exercising out of state parenting
time. Later, Defendant also relocated to North Carolina, As a result, an order was entered
modifying Defendant's parenting time and designating holidays and vacation time. Both parties
filed a motion for reconsideration. The trial judge both agreed and denied certain challenges, and
modified child support since inter-state visitation was no longer an issue and Defendant's
parenting time had increased. The overall effect was an increase in Defendant's child support
obligation.
An order was entered on October 15, 2015, stating that the litigation in New
Jersey had concluded and that the District of North Carolina now accepted jurisdiction of the
case since North Carolina was the home state of the child, as well as the residence of both
parties. Then, on October 16, 2014 an order was entered memorializing the child support terms,
providing an effective date for the modified child support, and reiterating that North Carolina
was to have jurisdiction of the matter. Defendant then filed a letter rejecting the October 15lh
order, challenging the child support calculation and the New Jersey Family Part's jurisdiction.
Since Defendant maintained that New Jersey did not have jurisdiction, she stated that the
October 15th and October 17lh orders should be vacated. Defendant filed a motion for
reconsideration, which was denied and Defendant appealed.
The Appellate Division concluded that New Jersey had both personal and subject
matter jurisdiction. Since when the post-judgment proceedings began, Defendant resided in New
Jersey and New Jersey issued the controlling child support order, continued, exclusive
jurisdiction to modify the child support order remained in New Jersey pursuant to N.J.S.A.
2A:4-30.133. In this case. Defendant revealed she relocated to North Carolina after the parties
had already appeared and participated in post-judgment matters with the court. In fact, the
Appellate Division stated that "by filing motions regarding parenting time and child support, and
#8415772.1 -17-
appearing at the hearing, both parties consented to New Jersey's continued exercise of
jurisdiction, as no new action was initiated in North Carolina." Under the Uniform Interstate
Family Support Act provisions effective at that time, the parties were to file the required
consents to allow North Carolina to attain jurisdiction. Since the parties failed to do so, the New
Jersey Family Part properly exercised continued jurisdiction.
Recognizing that the Uniform Interstate Family Support Act was recently
amended, the Appellate Division clarified that the case was to be analyzed under the prior act,
since that version of the act was in effect when the orders under review were entered. However,
the amendments to the Uniform Interstate Family Support Act do not have effect on this case.
The relevant amendment provides "when all parties have left the state. New Jersey may not
modify a child support order, even though it issued the controlling order, if all individual parties
file written consent in New Jersey stating another tribunal, with personal jurisdiction over one
party or which is the child's home state, should modify the controlling order. N.J.S.A. 2A:4
30,133(b)(1)." As previously stated, the Defendant did not reveal she had relocated to North
Carolina until after several post-judgment motions had been filed. Further, none of the parties
filed the required consent to North Carolina having jurisdiction in the matter.
Matison v. Lisnyansky, 443 N.J. Super. 549 (App. Div. 2016). Opinion by Judge Kobiitz,
J A.D.
Issue: Does the fugitive disentitlement doctrine bar a defendant from appealing a default
judgment award of palimony and custody where the defendant left the country where there was
an outstanding bench warrant for nonpayment of child support?
Holding; Yes. The Appellate Division dismissed the appeal holding that the fugitive
disentitlement doctrine was applicable. Here, defendant was ordered to pay child support and had
a bench warrant issued against him pending payment of arrears after he stopped supporting his
children and voluntarily remained outside of the United States. After numerous requests for
#8415772.1 - 1 8 -
n adjournments, the defendant then failed to appear. Consequently, default judgment was entered
against him. The trial court proceeded to hold a trial regarding plaintiffs prayers for relief. The
trial court entered default judgment awarding palimony and custody to the plaintiff. Defendant
appealed this judgment, while still remaining outside of the United States. As a result the court
dismissed the appeal and stated that a defendant is not afforded the protection of the judicial
system where he intentionally remains outside of the country to avoid arrest.
CUSTODY
Bisbing v. Bisbing, 445 N.J. Super. 207 (App. Div. 2016). Opinion by Judge Koblitz, J.A.D.
Issue; Where the MSA provided for a non-relocation provision did the court err in allowing the
Plaintiff to relocate with the parties' children without first holding a plenary hearing?
Holding: Yes, the Appellate Court reversed and remanded for a plenary hearing.
The parties agreed to joint legal custody in an MSA, alternate weekends and one night during the
week, and that the Plaintiff would have primary residential custody so long as she did not
relocate out of the state. Both parties agreed to live within 20 miles of the other in New Jersey.
The MSA stated that "[njeither party shall permanently relocate with the Children from the State
of New Jersey without the prior written consent of the other." Nine months after the divorce.
Plaintiff informed Defendant that she intended to marry a resident of Utah and relocate to Utah
with the children. Plaintiff has been dating her fiance for four months when the MSA was signed.
Defendant objected to her moving with the children. Plaintiff filed a motion to relocate with the
children, which was granted without a plenary hearing. The Plaintiff remarried and she and the i
children relocated to Utah.
The Appellate Court reasoned that a plenary hearing was necessary to determine
whether the MSA, as to non-removal, was negotiated in bad faith. If it was negotiated in bad
faith, the court should utilize a best interests test and not Baures v. Lewis, 167 N.J. 91 (2001).
However, if bad faith is not demonstrated and Plaintiff can "prove a substantial unanticipated
#8415772.1 -19-
change in circumstances[,] warranting avoidance of the agreed-upon non-relocation provision[,]"'
then a Baures analysis should be used. If the MSA was negotiated in good faith and the Plaintiff
does not prove a substantial unanticipated change in circumstances, the court should conduct a
best interest analysis.
The Appellate Court discussed the need for a plenary hearing as a result of the
suspicious nine-month proximity between the date when Plaintiff settled the divorce and the
motion for relocation. Defendant claims that Plaintiff could have negotiated the MSA in bad
faith in order to use the Baures framework and therefore secure a more favorable result with
regard to relocation with the children. The Baures procedure requires that where one parent is
designated as the primary caretaker a two-part test is used to determine whether or not that parent
can relocate with the children. First, the moving party must demonstrate that there is a good faith i
reason for the move, and second, that the move is not contrary to the children's best interests.
However, central to the Baures analysis is giving deference to any agreements by the parties
regarding custody in addition to considering the primary caretaker's right to happiness.
Defendant claims that he would not have consented to the settlement agreement had he known a
relocation would follow. As a result, the Appellate Division, citing to Shea v. Shea 384 N.J.
Super. 266, 271-272 (Ch. Div. 2005), stated that Defendant was entitled to a plenary hearing to
determine whether or not Plaintiff entered into the MSA in order to utilize the more favorable
Baures relocation procedures.
The court discussed the history of upholding consensual agreements absent a
demonstration of changed circumstances. Quoting the language of the MSA, the court opined
that the intent of the agreement was that the children would remain in New Jersey and that
Plaintiff voluntarily surrendered her right to relocate. Nevertheless, the court held that if the
MSA was negotiated in good faith and Plaintiff can demonstrate a substantial and unanticipated
change in circumstances, the court should apply the Baures factors.
#8415772.1 -20-
D.G. et al. v. K.S., 444 N.J. Super. 423 (Super. Ct. 2015). Opinion by Judge Wauters, J.S.C.
Issue #1: Is a non-biological third party who has cared for a child throughout the child's life as a
result of an agreement a psychological parent?
Holding: Yes. In this case an agreement between three friends, to conceive and care for a child
was created. Defendant was the biological mother, Plaintiffs were a same-sex couple, one of
whom was the biological father. For several years the arrangement between the three parties
worked and each party functioned as a parent. Defendant, the biological mother, told Plaintiffs
she wished to relocate with the child to California. Plaintiffs, opposed this move and filed a
complaint for legal and physical custody of the child, parenting time, and asserted that S.H., the
non-biological partner, was a psychological and legal parent. The court concluded that S.H. was
a psychological and legal parent. The court found that the four element test, established in V.C.
v. M.J.B., 163 N.J. 200 (2000) to determine if a third party is a psychological parent, was met:
Plaintiff is married to the child's biological father, D.G.; the Plaintiffs and Defendant mutually
agreed to conceive and raise the child between them; and that the relationship between the child
and S.H. was fostered by D.G. and the Defendant since the child was born. The court also looked
at factors such as the child staying in S.H.'s household, S.H. assuming obligations of parenthood
such as taking responsibility for childcare, education and financial support and the fact that the
child refers to him as "Papa." The court concluded that S.H. and the child formed a significant
bond through extensive parenting time over six years and that S.H. was a legal and psychological
parent.
Issue #2: What custody arrangement is in the best interest of the child where a same-sex couple
and the biological mother entered into an agreement to conceive and jointly care for a child
thereby creating a ''tri-parenting" arrangement that is no longer functional since the mother
wishes to relocate?
#8415772.1 - 2 1 -
Holding #2: The court held that joint custody was in the child's best interest under N.J.S.A.
9:2-4. In determining what was in the best interest of the child the court considered two expert
opinions. The court made determinations for each of the factors under N.J.S.A. 9:2-4(c). First,
the court found that the Plaintiffs were more likely to communicate effectively and foster a
relationship between the child and all three parents. Second, the court found that all of the
parents were willing and fit to have custody of the child but that the Defendant demonstrated a
tendency to deny parenting time to Plaintiffs. Third, the court found that the child had a good
relationship with all three parents. Fourth, the court concluded that Plaintiffs were more able to
provide the child with a stable home environment because of their more consistent lifestyle.
involvement in the child's schooling, their religious influence on the child, the involvement of
the Plaintiffs' parents in the child's life, and the Plaintiffs' flexible work and financial status.
Fifth, the court analyzed the child's schooling options and concluded that, as a result of the
child's learning disabilities, the school that the child would attend under the Plaintiffs' care, was
a better opportunity for the child than could be provided under Defendant's care.
Based on all of the aforementioned conclusions, the court held that Plaintiffs and
Defendant were to have equal legal and residential custody of the child, joint legal custody to all
three parents with the child living with the Plaintiffs during the week and with the Defendant on
the weekends. Defendant's motion to relocate was denied as it was in the best interest of the
child to have joint legal and residential custody among all three parents.
Issue #3: What is the legal standard for removal, best interest of the child or Baures if a de facto.
shared parenting arrangement was in place?
Holding #3: The standard is best interest because it is a change in the joint custodial
arrangement.
#8415772.1 -22-
Innes v. Marzano-Lesncvich, 224 N.J. 584 (2016). Opinion by Justice Solomon joined by Chief
Justice Rabner and Justice Albin. Justice LaVecchia filed a separate, dissenting opinion, in which
Judge Cuff (temporarily assigned) joins. Justices Patterson and Fernandez-Vina did not
participate.
Issue: May a prevailing party in an action against an adverse attorney, for fiduciary malfeasance.
recover attorney's fees?
Holding: Yes. The Court held that defendant attorneys may be responsible for attorney's fees to
the adverse litigant if they intentionally breached their fiduciary obligation. Peter Innes and
Maria Carrascosa were involved in a bitter divorce and custody matter. Maria was represented by
Marzano-Lesnevich, Esq. The parties' daughter had dual citizenship in the United States and
Spain. Defendant Marzano-Lesnevich, Esq. was given possession of the daughter's passport as
trustee and escrow agent. Marzano-Lesnevich gave Maria her daughter's passport and her client
removed the child to Spain on January 13, 2005.
Following the daughter's removal to Spain, Plaintiff, Peter Innes, filed a
complaint against the Marzano-Lesnevich in the Law Division for the improper release of the
daughter's passport. Defendants were found to have been negligent in releasing the daughter's
passport and damagers were awarded to the husband and the daughter. The Supreme Court
addressed "whether [Marzano-Lesnevich] can be liable for attorney's fees as consequential
damages to a non-client under Saffer v. Willoughby, 143 N.J. 256 (1996)." The Court held that
Defendant attorneys were liable for attorney's fees as a result of their intentional breach of their
fiduciary duty to husband by giving Maria their daughter's passport without the husband's
consent. The Court stated that the Saffer court held that a prevailing plaintiff may be awarded
counsel fees in a malpractice action when such fees are "consequential damages that are
proximately related to the malpractice." Fee-shifting is especially important in cases of attorney
misconduct. Although the Court has never previously held that a non-client is entitled to fee-
#8415772.1 -23-
shifting counsel fees, there is authority which has awarded a beneficiary counsel fees where a
fiduciary's misconduct intentionally inflicted damage to the beneficiary. Here, the Defendant
attorneys were fiduciaries for both parties and they breached their duty by improperly releasing
the daughter's passport. However, the jury found that Defendant attorney's misconduct was
negligent, but did not determine if Defendant attorneys intentionally violated their fiduciary duty.
As a result, the matter was remanded for further findings.
DOMESTIC VIOLENCE
A.M.C. V. P.B., 148 A.3d 754 (App. Div. 2016). Opinion by Judge Fuentes, P.J.A.D.
Issue: Whether the Trial Court erred when it denied plaintiff a final domestic violence
restraining order ("FRO") pursuant to N.J.S.A. 2C;25-17 to -35, although it determined that the
defendant had physically assaulted the plaintiff on two separate occasions.
Holding: Yes. The Trial Court misapplied the two-prong standard found in Silver v. Silver, 387
N.J. Super. 112, 125-27 (2006). The Trial Court failed to consider: "(1) the inherently violent
nature of the predicate acts defendant committed against plaintiff over a three-week period; (2)
that defendant physically assaulted plaintiff to prevent her from leaving the marital residence and
seeking refuge in a women's shelter; and (3) the parties' history of domestic violence, which
included both violent behavior and threats of further violence." It was erroneous for the court to
conclude that it was unlikely that the parties would interact in the future because it was a short
marriage and there were no children. The court held that because the predicate act here was
inherently violent, the need to protect the plaintiff from suffering further abuse was "self-
evident" and clearly in her best interest.
#8415772,1 -24-
In the Matter of the Application of the State of New Jersey for the Forfeiture of Personal
Weapons and Firearms Identification Card Belonging to F.M., 224 N.J. 487 (2016). Justice
Solomon Delivered the Opinion of the Court.
Issue: Should F.M.'s personal firearm and firearms purchaser identification card seized pursuant
to the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35 be forfeited
pursuant to N.J.SA. 2C:58-3(c)(5) based on the State's claim that rearming P.M. "would not be
in interest of the public health, safety or welfare."
Holding: Yes, the Court held that the return of F.M.'s firearm and firearms purchaser
identification card was not in the best interest of public health, safety or welfare.
P.M. and G.M. were separated, and P.M. came to the marital residence to visit the
children. However, G.M. claimed that P.M. did not have visitation that day, and held on to the
rear of P.M.'s car to prevent him from leaving. The Morristown Police Department arrived and
observed P.M. grab G.M. off of his vehicle and "throw" her face into a four-foot stone wall. The
Police Office then observed injuries on G.M.'s forearm and arrested P.M. for domestic violence
and simple assault. After this incident, G.M. obtained a temporary restraining order (PRO).
P.M.'s personal firearm and ankle knife were seized by his employer, the Roseland Police
Department. After trial, the Family Part held that there was insufficient evidence to warrant an
PRO.
The State proceeded to file a motion to have F.M, forfeit his personal weapon
and identification card. After oral argument and an evidentiary hearing the Family Part judge
denied the State's motion. The Appellate Division affirmed the Family Part judge's conclusion.
The Supreme Court reversed and remanded to the Family Part for the entry of an
order forfeiting P.M.'s weapon and firearms purchaser identification card. The Supreme Court
held that the Family Part used the incorrect legal standard in reaching its conclusions that the
State did not prove that F.M.'s forfeiture of his weapon and firearms identification card was
#8415772.1 -25-
warranted. In addition, the Supreme Court held that the Family Part's conclusions were not
supported by credible evidence. The Supreme Court analyzed N.J.S.A. 2C:58-3(c) as providing a
limitation on the issuance of firearms identification cards and permits if an individual is subject
to certain disabilities; one of those disabilities is any instance in which the issuance of a permit
and firearms identification card would be contrary to the public interest. Further, if an individual
is later found, by a preponderance of the evidence, to be unfit to possess a firearms permit or
identification card, forfeiture may be warranted. The Supreme Court held that the Family Part
Judge incorrectly stated that the State had to demonstrate "more than just a showing that some
danger might exist." Rather, the State only needed to show by a preponderance of the evidence
that F.M.'s possession of a firearms and firearm identification card was contrary to the public
health, safety or welfare. The Supreme Court further reiterated that the Domestic Violence Act
was "intended to assure victims of domestic violence the maximum protection from abuse the
law can provide." Therefore, the fact that the domestic violence complaint was dismissed has no
bearing on whether or not F.M.'s weapon and firearms identification card should be forfeited.
Lastly, the Family Part judge erred by concluding that the State needed to demonstrate that F.M.
suffered from a specific, diagnosable disorder to be required to forfeit his weapons pursuant to
N.J.S.A. 2C:58-3(c)f5).
J.S. v. D.S.. 2016 WL 7048807 (Super. Ct. App. Div.). Opinion by Judge Fisher, P.J.A.D.
Issue: Did the trial judge err by entering a Final Restraining Order that the parties consented to
without taking testimony, determining that an act of domestic violence occurred, or concluding
that the Final Restraining Order was necessary to protect Plaintiff from Defendant?
Holding: Yes, the Appellate Division held that a Final Restraining Order may not be consented
to or entered without a factual basis. As such, the existing FRO was vacated, the TRO was
reinstated and the matter was remanded to determine whether a Final Restraining Order was
warranted.
#8415772.1 -26-
Plaintiff filed a Domestic Violence Complaint pursuant to the Prevention of
Domestic Violence Act, N.J.S.A 2C:25-17 TO -35, and obtained a Temporary Restraining Order
(TRO) against Defendant. At the hearing to determine if a Final Restraining Order (FRO) was
warranted. Plaintiffs counsel advised the trial judge that the parties had reached an agreement
whereby Defendant consented to an FRO in exchange for Plaintiffs consent that Defendant
would maintain exclusive possession of the marital home. The judge then questioned both
Plaintiff and Defendant under oath whether they understood and voluntarily consented to the
agreement. The judge then entered the FRO.
Defendant appealed the FRO on the grounds that the judge entered it without
taking the requisite testimony regarding the alleged act of domestic violence, without finding an
act of domestic violence occurred, and without concluding that an FRO was necessary to protect
Plaintiff from Defendant. Although the parties later submitted a stipulation of dismissal, the
Appellate Division considered the appeal as it raised the issue to whether or not the FRO was
void ab initio.
The Appellate Division acknowledged the over-arching public policy of
encouraging settlement rather than litigation. However, the court still maintains the responsibility
of ensuring remediation of any systematic failures. The Appellate Division also acknowledged
the common practice of plaintiffs seeking dismissal of domestic violence actions before or after
the entry of an FRO. When a plaintiff seeks to dismiss a domestic violence action, the court then
must examine the plaintiff s reasons for seeking dismissal including whether or not plaintiff is
knowingly and freely seeking dismissal. This inquiry is to make sure that, among other things.
"entry, continuation, or dismissal of an FRO" is not done "as a bargaining chip in the settlement
of other disputes." Here, the trial court did not make the proper inquiry as to the merits of the
FRO, or the reasons behind the agreement to enter an FRO. The Appellate Divisions stated "[a]
domestic violence final restraining order may not be entered by consent or without factual
#8415772.1 -27-
foundation." Therefore, the Appellate Division concluded that the FRO was impermissibly
entered and the matter was remanded for a final hearing.
DIVISION OF CHILD PROTECTION & PERMANENCY
New Jersey Division of Child Protection and Permanency v. G.S. and K.S., 2016 WL
6872983 (App. Div. 2016). Opinion by Judge Sabatino, P.J.A.D.
Issue #1: May separate staff attorneys from the Public Defender's Office of Parental
Representation ("OPR") represent each parent in Title 9 and Title 30 litigation?
Holding #1; Yes.
The Appellate Division held that "the law does not categorically prohibit or even
presumptively disfavor staff attorneys working out of the same OPR regional office from
separately defending individual parents in a Title 9 or Title 30 case." The court stated that
parents facing Title 9 and Title 30 actions have a constitutional and statutory right to counsel
which needs to be protected. Parents have the right to effective assistance of counsel which
includes an attorney's undivided loyalty and representation absent any conflicting interest.
Multiple representation may create a conflict of interest triggering concern when there "is a
manifest particularized divergence between the clients' factual contentions or legal assertions, or
Because of the risks associated with the remedies they wish their counsel to advocate."
representing clients with conflicting interests, N.J. R, Prof. Conduct 1,7(a)(1) specifically
prohibits lawyers from representing multiple clients where the clients have directly conflicting
interests or interests that materially limit the lawyer's advocacy.
The court held that "there is no per se ethical prohibition upon staff attorneys
from within the same Office of Parental Representation regional office representing different
parents within the same case, provided that appropriate screening measures are scrupulously
implanted." In addition, the court stated that OPR already has appropriately designed procedures
to safeguard client confidences and assure that confidentiality of all client communications and
#8415772,1 -28-
attorney work product was maintained. However, the court advised that the protocol should be
expanded to include the safeguarding of digital communications and electronically stored
information.
Issue #2: When an actual or potential conflict between parents arises in a Title 9 or Title 30
action may a parent waive the conflict?
Holding #2: Yes, the court held that parents may waive a conflict so long as there is informed
consent based on full disclosure and consultation with counsel.
New Jersey Division of Child Protection and Permanency v. J.D, J.R. and J.G., In the
Matter of J.D. Ill, 148 A.3d 128 (App. Div. 2016). Opinion by Judge Carroll, J.A.D.
Issue: Did the court err in concluding, based on hearsay documentary evidence, that a father
abused or neglected his ten year old son when he left him unattended in a vehicle while he
proceeded to become intoxicated in a bar?
Holding: No. The court held that the record, which was based on redacted police reports and
investigative summaries prepared by the Division of Child Protection and Permanency,
supported the judge's finding that defendant abused or neglected his son. Although the
documentary evidence contained embedded hearsay, the statements found in the investigative
summaries and police reports were nonetheless admissible both through evidentiary exceptions
to hearsay and the fact that the father's counsel agreed to the admission of the documents into
evidence. The court pointed out that the father both agreed to the documents being admitted into
evidence as well as agreeing to a trial based solely on the papers. However, the court cautioned
against the inherent danger of adjudicating contested trials based solely on documentary
evidence and impressed the importance of the rules of evidence during fact-finding hearings
which bear upon the welfare of a child
#8415772.1 -29-
New Jersey Division of Child Protection & Permanency v. K.G.. 445 N.J. Super. 324 (App.
Div. 2016). Opinion by Judge Reisner, P.J.A.D.
Issue: Was the trial judge's finding that the mother abused or neglected her ten-month-old baby
by leaving the baby with her nineteen-year-old son, who is cognitively impaired, an abuse of
discretion?
Holding: No, The Appellate Division Affirmed the trial judge's determination that the mother
abused or neglected her 10-month old baby by leaving the child with her older son who was not
capable of caring for him, The Division investigator determined that the older son had "a major
mental disability" and prepared a safety protection plan which required the mother to secure
another babysitter. The mother had agreed to the safety protection plan.
Several experts determined that the older child had substantial cognitive
impairments and was not capable to care for the child. The trial judge agreed and found that the
older child "would not be able to handle an emergency situation, should one arise while he was
caring for [the baby], and that [the mother] exposed the baby to a serious, unjustified risk by
leaving [the older child] alone with the baby for an extended period of time." In addition, the
trial judge concluded that the mother was not a credible witness and the one expert who relied on
mother's inaccurate description of events, was also not credible.
On appeal, the mother raised several issues including the trial court's finding of
gross negligence and alleging that the Division failed to meet its burden of proof absent any
actual harm. The Appellate Division affirmed the trial judge's findings stating the older child's
incapacity was clearly demonstrated through several experts and other witnesses' testimony. In
addition, the Appellate Division reiterated that the mother did not leave the baby with the older
child on just one occasion, rather she continuously left the baby under the older child's sole
supervision. As a result, the mother was found to be grossly negligent. Although the court agreed
with the mother that parents must make judgment calls when determining who is a fit child care
#8415772.1 -30-
provider, the court stated that the mother's decision to leave her infant with the older child, who
functioned on a seven-year-old level, was not exercising the minimum degree of care as required
by law. The mother also claimed that as a result of the absence of actual harm to the baby, her
name should not be added to the Central Registry pursuant to NJ.S.A. 9:6-8,11. However, the
Appellate Division rejected this interpretation of the statute, relying on Department of Children
& Families v. E.D.-O.. 223 NJ, 166 (2015).
New Jersey Division of Protection and Permanency v. K.M., 444 N.J. Super. 325 (App. Div.
2016). Opinion by Judge Fuentes, P.J.A.D,
Issue: Did the biological mother, K.M., abuse or neglect her child within the meaning of I
NJ.S.A. 9:6-8.21(c)(4)(a), by failing to disclose to medical staff that she used opioids during her
pregnancy?
Holding: Yes. The Appellate Division affirmed the Family Part order that she abused or
neglected her child, G.G., within the meaning of NJ.S.A. 9:6-8.21(c)(4)(a). Immediately after
G.G. was born he exhibited no signs of abnormalities. However, within three days of birth the
baby was admitted to the neonatal intensive care unit ("NICU") for respiratory distress and signs
of opioid withdrawal. Because G.G.'s symptoms were consistent with opioid withdrawal, the
Division of Child Protection and Permanency ("DCPP") was notified. A caseworker from DCPP
spoke to K.M. who admitted to being addicted to Oxycodone and selling Roxicodone prior to
pregnancy. In addition, K.M. admitted to taking "Suboxone two to three times per week and
smoking marijuana during her pregnancy." As a result, NICU staff began to treat G.G. with
morphine, and after 22 days he was released.
Quoting G.S. v. Dep't of Human Servs.. 157 N.J. 161, 182 (1999), the Appellate
Division reiterated that in determining whether the child was abused or neglected the case should
"focus on the harm to child and whether that harm could have been prevented had the guardian
performed some act to remedy the situation." Since K.M. failed to disclose during delivery and
#8415772.1 -31-
for three days thereafter that she used Suboxone during her pregnancy, she delayed treatment of
G.G. and "caused her infant son needless suffering." The Court held that K.M.'s failure to timely
disclose her use of Suboxone was grossly negligent conduct, and therefore she had neglected
G.G. within the meaning of N.J.S.A. 9:6-8.21(c)(4)(a).
New Jersey Division of Child Protection and Permanency v. K.S. 445 N.J. Super. 384
(App. Div. 2016). Opinion by Judge Koblitz, J.A.D.
Issue: Did the trial judge's refusal to re-open the record shortly after a one-day trial to terminate
parental rights constitute an abuse of discretion and violation of procedural due process?
Holding: Yes. Here, K.S. did not attend the trial to determine whether or not her parental rights
would be terminated and therefore was not given an opportunity to testify. K.S. attended the trial
date ten days later where the judge was to render an opinion. K.S. asked the trial judge to
stated that she had mistakenly thought the trial was "present evidence on her behalf and
scheduled for a different day. The trial court judge denied K.S.'s request to re-open the case
relying on her history of failing to attend court proceedings and that K.S. had sufficient notice of
the correct date.
The Appellate Division reversed and remanded, holding that K.S. has a
constitutional right to procedural due process which was denied resulting in K.S.'s relationship
with her children to be permanently severed. The court noted a parent's fundamental right to
raise his or children and the State's obligation to provide parents with fair proceedings when
seeking to destroy familial bonds. Using the balancing test from Mathews v. Eldridge, 424 U.S.
319, 334-445 (1976), the court found: "the private interest in maintaining some relationship with
his or her children" is paramount, and both parent's and children's rights should be
accommodated when possible; the risk of the court hearing a deficient narrative absent K.S.'s
testimony was probable, and the children's interests were better served with all evidence being
presented; and it would not have been inefficient to re-open the case since it was very soon after
#8415772.1 -32-
the proceeding, there was no jury and the judge had not rendered an opinion. The Appellate
Division also noted that the trial judge did not consider K.S.'s history of substance abuse,
cognitive impairments, mental illness, and that she was a victim of domestic violence and opined
that these unfortunate circumstances could have contributed to K.S.'s failure to appear.
New Jersey Division of Child Protection and Permanency v. N.T., 445 N.J. Super. 478 (App
Div. 2016). Opinion by Judge Leone, J.A.D.
Issue: Did the trial court err by substantially relying on and admitting hearsay evidence
including a Division caseworker report and a psychological evaluation of the child?
Holding: Yes, the court held that the trial court improperly based its decision on hearsay
evidence. The court held that a Division report is admissible through the business record
exception under N.J.R.E 803(C)(6). However, hearsay within the report must also be found
admissible under the requirements of N.J.S.A 9:6-8.46(a)(3), Rule 5:12-4(d), and the standard
established in In re Guardianship of Cope. 106 N.J. Super. 336 (App. Div. 1969). Specifically,
statements within Division reports that are from Division personnel or affiliated staff are
admissible so long as their statements represent the individual's "first-hand factual observations.
ai a time reasonable contemporaneous to the facts they relate, and in the usual course of their
duties." Here the court found that the Mother's statements within the report were admissible
hearsay evidence pursuant to N.J.R.E 803(c)(25), the statements against interest exception.
However, the psychological report of the child was inadmissible hearsay, The court found that
since the psychologist did not testify, the trial court was required to establish the criteria of
N.J.R.E 808, which requires hearsay expert opinions or reports to be trustworthy and not too
complex. Since the trial court substantially relied on this report absent these findings, the court
vacated the judgment and remanded for a new fact-finding hearing.
#8415772.1 -33-
New Jersey Division of Child Protection and Permanency v. S.G.. 2016 WL 7242759 (App.
Div. 2016). Opinion by Judge Gooden Brown, J.S.C. (temporarily assigned).
Issue: Did the trial court err in concluding that a mother abused and neglected her daughter
without hearing testimony during the fact finding hearing and instead relying solely on redacted
Division and police reports?
Holding: Yes, the court held that the trial court failed to "fully engage in its duty as fact-finder."
The Division concluded that the mother had abused or neglect her daughter within the meaning
of N.J.S.A. 9:6-8.21 based solely on the evidence of four documents; two Investigation
Summaries, a police report, and a court report. Because there were numerous material facts in
dispute, the court stated that taking testimony and observe witnesses first-hand was imperative.
Absent testimony, the court concluded that the Division failed to establish the required proof that
the mother abused or neglected her daughter. The finding of abuse and neglect was vacated and
the case was remanded for a testimonial fact-finding hearing.
State of New Jersey in the Interest of A.R.. 149 A.3d 297 (App. Div. 2016), Opinion by Judge
Sabatino, P.J.A.D,
Issue: Did the trial court err by permitting a seven-year old boy's hearsay statements under the
"tender years exception" N.J.R.E. 803(c)(27) and N.J.R.E. 601?
Holding: Yes. The Court concluded that admitting the child's statements were testimonial under
the Confrontation Clause and therefore inadmissible. The Appellant, a fourteen-year-old
juvenile, allegedly sexually touched a seven-year-old boy while on a bus returning from summer
camp. After the incident, the victim blurted out to his mother's cousin, that Appellant had
touched him on the bus. In an interview with a detective over two weeks later, the victim
repeated the accusation and demonstrated what had happened with dolls.
#8415772.1 -34-
The trial court ruled that both statements made by the victim were admissible
pursuant to the "tender years" hearsay exception, N.J.R.E. 803(c)(27) . The trial court then
determined that the child was not a competent witness under N.J.R.E. 601.
The Appellate Division held that the child's statements to the detective were
testimonial in nature, and thus inadmissible under the Confrontation Clause and Crawford v.
Washington 541 U.S. 36 (2004). Since the child's statements to the detective were made in
response to questions designed to elicit evidence, those statements were clearly testimonial.
However, the child's statement to his mother's cousin after getting off the bus was admissible
since it was not testimonial in nature. i
EQUITABLE DISTRIBUTION
Thietne v. Aucoin-Thieme, 224 N.J. 245 (2016). Opinion by Justice Patterson.
Issue #1: Does the equitable distribution statute, N.J.S.A. 2A:34-23(b) authorize the distribution
of a closing bonus received after divorce, but earned during the marriage?
Holding #1: Yes. The Supreme Court held that the equitable distribution statute authorized the
distribution of the "Closing Bonus" to the extent that it represented funds earned during the
parties' marriage.
Plaintiff and Defendant were married for fourteen months and had a child
together. They cohabitate for eight years prior to their marriage. During the couple's relationship.
Plaintiff worked for a biometrics consulting firm and Defendant cared for their daughter, their
home, and helped manage their rental properties. Throughout his employment, Plaintiff held no
ownership interest in the biometrics firm. However, it was made clear to Plaintiff that should the
firm be sold, he would be compensated for his contributions to the firm's success. The couple
filed for divorce after fourteen months of marriage. Three months after the entry of the Judgment
of Divorce, Plaintiff received a one-time "Closing Bonus" of $2,250,000. Plaintiff did not inform
#8415772.1 -35-
Defendant of this bonus, but unknowingly deposited $200,000 into a joint bank account with
Defendant. After discovering the funds. Defendant withdrew the money.
The trial judge determined that the Closing Bonus was representative of his work
throughout his employment with biometrics firm. As such, the trial judge found that Defendant
was entitled to the portion of the bonus found to have been earned during the marriage, $30,288,
Since Defendant had already withdrawn $200,000, she was ordered to return the difference. On
Appeal, Defendant claimed that she was entitled to a share of the bonus equal to the period of
time that her and Plaintiff cohabitated in addition to the time they were married. In addition,
Defendant asserted that to not receive this share, would result in Plaintiffs unjust enrichment.
The Appellate Division affirmed the trial court's ruling.
The Supreme Court held that under the equitable distribution statute, N.J.S.A.
2A;34-23(h), Defendant was entitled to the portion of the Closing Bonus earned during the
marriage, but was not entitled to a portion of the Closing Bonus that was earned during the
period of cohabitation since the equitable distribution statute does not apply to couple's who
cohabitate. Further, the Supreme Court stated that to treat funds acquired prior to marriage as
marital asset would "contravene the plain language of N.J.S.A. 2A:34-23(h)."
Issue #2: Does Plaintiff s receipt of $2,219,712.00 of his Closing Bonus three months after
divorce qualify as unjust enrichment? I
Holding #2: Yes, the Supreme Court held that the nominal share of the closing bonus Defendant
would receive pursuant to the equitable distribution statute would result in an unjust enrichment
to Plaintiff.
In order to prove unjust enrichment. Defendant must demonstrate that Plaintiff
received a benefit which would be unjust for him to retain without compensating Defendant. The
Supreme Court held that the exceptional circumstances and facts of the case would result in
Plaintiffs unjust enrichment. As such, the Supreme Court applied an equitable remedy and
#8415772,1 -36-
ordered that the poition of the Closing Bonus earned during the period of cohabitation to be held
in constructive trust. The matter was remanded to determine Plaintiff s share of the bonus.
C. RAM) PAH SI iT VISITATION
Major v. Maguire, 224 N..J. 1 (2016). Opinion by Justice Patterson, joined by Chief Justice
Rabner and Justices LaVecchia, Solomon and Cuff (temporarily assigned). Justices Albin and
Fernandez-Vina did not participate.
Issue: What procedures must a Family Part judge fo'low to determine grandparents' visitation
rights?
Holding: Pursuant to Moriarty v. Bradt, 177 N.J. 84 (2003), grandparents seeking visitation over
a parent s objection under N.J.S, A. 9:2-7.1 must establish, by a preponderance of the evidence,
that visitation is necessary to avoid harm to the child. Historically, grandparent visitation cases
were proceeded as summary actions using standard pleading forms and without discovery, often
depriving grandparents the opportunity to meet their burden under Moriarty. However, the new
case management procedures of R. 5:5'7(c) provide a framework foi proceeding with
grandparent visitation cases in a non-summary fashion if the party successfully demonstrates that
the matter is complex.
The Supreme Court held that when a grandparent visitation case is complex, the
filing party should file a non •conforming complaint to make a prima facie showing of harm, and
the other party should response by identifying the issues and disputed facts. The parties are to
cooperate in coordinating a workable discovery schedule.
Here, the paternal grandparents commenced an action for visitation of theii six
year old granddaughter under N.J.G.A: 9:2-7.1 after the child's father died based on the mother's
constraints on their visitation. The trial court held that the complaint failed to allege the requisite
particularized harm and therefore dismissed the complaint. The Supreme Court affirmed the
Appellate Division's ruling that the trial court erred in dismissing the plaintiff s complaint. The
#8^15772.1 -37-
Court concluded that the plaintiffs' allegations that they were involved with the child's home,
school, and extracurricular life before their son's (the child's father) death were sufficient to
raise a prima facie case of harm. Although death of a parent does not per se show harm, it is an
important factor. The Court also found that the matter should be proceeded with as complex and
remanded the matter to the trial court to proceed under the case management procedures of R.
5:5-7(c). The court suggested that a case management conference should address the following:
1) the nature of the harm to the child; 2) the possibility of settlement through mediation; 3)
lite relief is warranted; 4) whether the factors identified in N.J.S.A. whether pendente
9:207.1(b)(1) through (8) can be stipulated; 5) the extent and scope of discovery which should
minimize the intrusion of privacy of the child and family; 6) whether expert reports are necessary
and if so the time frame for reports and possible depositions of experts; 7) protocols for motions
and; 8) end dates for discovery, motions and fixing trial. The court also noted that litigation may
commence even if the grandparents claim that the voluntary visitation schedule is inadequate.
Slawinski v. Nicholas. 2016 WL 7094152 (App. Div. 2016). Opinion by Judge Ostrer, J.A.D.
Issue: Did the trial court err by holding that the Defendant mother was entitled to unilaterally
terminate grandparent visitation, established through a consent order, since there was no proof by
the Plaintiff Grandmother that visitation was necessary to avoid harm to the child?
Holding; Yes, the Appellate Division held that the trial court erred and reversed and remanded
the matter. The mother had the burden to prove changed circumstances and the absence of harm
to the child if visitation is terminated.
Defendant mother had sole custody of the child, Lilly. In January. 2015
Defendant mother and Plaintiff grandparent entered into a consent order establishing grandparent
visitation with Lilly. However, after a few months the mother claimed that the visitation was not
working, citing to claims of improper hygiene during the visits as well as a change in Lilly's
behavior following the visits. The mother appeared and claimed that she did not have the burden
#8415772.1 -38-
to establish anything beyond the fact that visitation was not working since it was entered into by
consent. The grandmother argued that under the Lepis framework there was insufficient evidence
to establish a prima facie case of changed circumstances. The trial judge erroneously concluded
that the mother "was entitled to terminate visitation unless [the grandmother] could demonstrate,
by a preponderance of the evidence, 'that denial of visitation would result in harm to the child.'"
The Appellate Division confirmed the high value in the settlement of litigation.
but recognized the "courts' commitment to enforce such agreements [as] tempered by its
equitable power to review and modify support and custody orders upon a showing of changed
circumstances." In any grandparent visitation order, modification may be sought at any time on a
showing of changed circumstances. When grandparent visitation is established through a consent
order, a parent still must make a prima facie showing of changed circumstances to modify the
order. Discovery should be permitted and a plenary hearing should be conducted if there are
genuine issues of material fact, The mother had the burden to establish that a change of
circumstances exists warranting a modification in the visitation order. To establish that the
change of circumstances warrants modification, the parent must establish that the modification
will not cause harm to the child, as opposed to a best interest analysis. Although parent's have
the fundamental right to raise their children as they see fit, once a parent enters into a consent
order regarding custody or visitation that parent "effectively waives that autonomy."
#8415772 1 -39-
AMENDED OR NEW COURT RULES
1:13-2. Affidavits
The rule now permits affidavits to be filed in Portable Document Format (PDF). The amended rule no longer requires an attorney to certify that the affiant acknowledged the genuineness of the signature.
1:21-1. Who May Practice; Attorney Access and Availabiiity
Non-profit organizations incorporated in this or any other state may provide legal assistance to persons of low and moderate incomes in their name through "participating new attorneys."
1:38-3. Court Records Excluded from Public Access
Subparagraphs (f)(2) and (f)(5) were amended to exclude public access to records related to civil commitment expungements and municipal court records. Subparagraph (d)(2) was also amended to exclude affidavits and certifications of insurance from public access.
Subparagraph (f)(9), which permits victims of crimes to request records pursuant to N.J.S.A. 47:1 A-5(b)(2), was added.
1:38-7. Confidential Persona! Identifiers
The last three digits of Social Security Numbers are permitted on any writ, order, or judgement issues by the court involving a judgment debtor. I
1:40. Complementary Dispute Resolution Programs
Subsection 2 of this rule was amended to provide a hybrid arbitration-mediation process. The definition of neutral third party as subparagraph (f) was also amended, and subparagraph (g) distinguished roster and non-roster mediators.
Subsection 3(a) requires the Administrative Office of the Courts to maintain the roster of statewide mediators.
Subsection 4 was extensively amended to conform with the guidelines established in Appendix XXVI.
Subsection 8 was amended to exclude penalty enforcement actions to the list of subjects not eligible for mediation referral.
Subsection 12 was amended to highlight the requirements of mediators, including those serving in court-annexed programs. In addition, specific rules regarding Family Part mediators were established.
#8415772.1 -40-
1:43. Filing and Other Fees Established Pursuant to N.J.S. 2B:l-7
This rule was adopted to establish an increase in filing fees to fund pretrial services, the implementation of digital e-court filing, and legal assistance to indigent litigants.
2:9-1. Control by Appellate Court of Proceedings Pending Appeal or Certification
Subparagraph (a) was amended to ensure the trial court's continued responsibility of monitoring the child's safety, permanency, and well-being. In addition, the rule reiterated the necessity of the continuation of services to the child or family throughout the pendency of an appeal. The rule further highlights the trial court's retention of the permanency plan unless the permanency plan is the subject of the appeal.
5:1-4. Differentiated Case Management in Civil Family Actions
For matters mutually agreed to be arbitrated, subparagraph (a)(4) and (a)(5) were amended to reflect the newly created arbitration track in the Family Part. Paragraph (b) was amended to prevent the good cause exception from applying to a case assigned to the arbitration track. The rule also created a provision, subparagraph (c), for parties to opt out of the arbitration track
5:1-5. Arbitration
R. 5:1-5 was adopted effective September 2015 to define the Family Part matters where arbitration is permitted. This new rule establishes the framework under which parties may agree to arbitrate disputes heard in the family part (under either the Uniform Arbitration Act, N.J.S.A. 2A:23B-1, et. seq,, the New Jersey Alternative Procedure for Dispute Resolution Act, N.J.S.A. 2A:23A-1, et. seq., or any other agreed upon framework for arbitration), the prerequisites for arbitration, and the procedure for what occurs during pending litigation when parties to a Family Part action agree to arbitration. This Rule governs all arbitration proceedings within the Family Part (rather than R. 4:21 A), with the procedures for review, confirmation and enforcement of interim or final arbitration awards set forth in R. 5:3-8, also then adopted (September 2015).
Subparagraph (a) of this rule establishes that parties may agree to arbitrate any disputes in the family part except; the entry of the final judgment of annulment or dissolution of relationship; actions involving the Division of Child Protection and Permanency; domestic violence actions; juvenile delinquency actions; family crisis actions; and adoption actions, which may not be arbitrated.
Subparagraph (b) establishes the prerequisites for arbitration including: completion of arbitration questionnaires found in Appendix XXIX-A and agreement or consent orders. The specific requirements of agreements and consent orders to arbitrate issues involving child-custody, parenting-time and child support is found in subparagraph (b)(2)(B) and (b)(2)(C).
Subparagraph (c) states that all family proceedings in which the parties agree to arbitration are to be in the arbitration track which are given scheduling consideration when fixing court appearance in other matters.
#8415772.1 -41-
5:3-2. Closed Hearings; Record
Subparagraph (a) was amended to include "In matters brought by the Division of Child Protection and Permanency, the court shall accommodate the rights of the child as provided by jjsj.J.S.A. 30:4C:61.2., prior to entering a permanency order.''
5:3-8. Review ar.ti Enforcement of Arbitration Awards
This new rule provides the procedures for confirming final and interim arbitration awards. Subparagraph (a) provides the procedure for all awards economic awards other than child support awards, subparagraph (b) provides the procedure for final or interim custody awards and oarenting time awards, subparagraph (c) provides the procedure for final or interim child support awards.
5.4 2. Complaint
This rule was amended include language directing that litigants are informed of the availability of the collaborative law process. Subparagraph (h) advises that this must be delineated in an affidavit or certification annexed to the first pleading.
Paragraph (i) was adopted requiring that non-dissolution matters be commenced via standardized form
Lastly, paragraph (j) "was added entirely to permit parties in a non-dissolution matter to request a complex track designation.
5:5-4. Motions in Family Actions
Subsection (a) of the rule was amended to require a copy of current and prior Case Information Statements to be affixed to motions and cross motions for alimony or child support based on changed circumstances. In addition, the rule expanded the prima facie case for changed circumstances to include a showing of other good cause.
5:5-6, Participation in Mandatory Post-£SF Medtation or in a Mandatory Post ESP ComplemeKtary Dispute Ilesolution Event
This rule was amended to comport with other rule changes regarding mediator's compensation including those changes found in appendix XXVI.
5.5-7. Case Mana&ement Conferences in Civil Family Actioins
Subparagraph (c) was added instructing the court to determine if a non-dissolution matter qualifies for a complex track during the first hearing by considering if discovery, expert evaluations, extended trial time or another material complexity requires such assignment. If the court finds that the matter is complex, a case management conference shall be conducted and an order regarding pre- trial issues shall be entered.
#844J57i.S -42-
5:6-1. When and By Whom Filed
The rule now provides that a non-custodial parent may bring a summary action for support.
5:7-4. Orders Establishing Alimony and Child Support Obligations
Subparagraph (d) now provides that all child and spousal support orders shall be entered into a statewide automated enforcement system and deemed payable through the New Jersey Family Support Payment Center unless otherwise directed by the court.
5:7-4A. Income Withholding for Child Support; Notices
This new rule establishes the procedures for income withholding for child support. Provisions formerly found under R^SiT-SCb) through (c) are now found under this rule, subparagraph (a) through (c), and R. 5:7-4(f) is found under 5:7-4A(d).
5:7-5. Failure to Pay; Enforcement by the Court or a Party; Suspension and Revocation of Licenses for Failure to Support Dependents; Execution of Assets for Child Support; Child Support Judgments and Post-Judgment Interest
Subparagraph (a) was amended to reference other available remedies pursuant to R. 5:3-7.
Subparagraph (e) has been re-designated as subparagraph (b) and amended to conform with N.J.S.A. 2A: 17-56.41. The rule states that "a child support obligor's driver's license shall be suspended by operation of law upon the issuance of a child support-related warrant." Additionally, an obligor's license to driver, participate in recreational activities, or practice a licensed occupation may be denied, suspended or revoked if specifically enumerated criteria are found at hearing.
R. 5:7-4A(a)-(c) reflect former subsections (b), (c), and (d).
5:7-11. Application for Title IV-D Child Support Services; Probation Division Enforcement Monitoring-Only Services.
This new rule provides the framework and procedures for applications of Title IV-D enforcement services are filed and implemented. Specifically, subparagraph (a) states that "[ajny party seeking full Title IV-D enforcement services by the Probation Division of an order that includes the payment of child support, or spousal support in conjunction with child support on the same order, shall submit a completed Title IV-D application, except as otherwise provided by law."
In addition, the rule also authorizes the use of the Probation Division for monitoring only.
5:12-4. Case Management Conference, Hearings, Trial, and Termination of Parental Rights Proceedings
The court rule was amended similarly to R, 5:3-2, to reflect N.J.S. 30:4C-61.2 and require the court to accommodate the rights of the child prior to entering a permanency order in matter brought by the Division of Child Protection and Permanency.
#8415772.1 -43-
5:14-4. Gestational Carrier Matters; Order of Parentage
This new rule provides the procedure through which biological parents using a gestational carrier may request a pre-birth order listing their names as legal parents on a child's birth certificate.
Appendix IX-A - Considerations in the Use of Child Support Guidelines Section 7(h), Assumptions Included in the Child Support Guidelines, and Section 20(a), Extreme Parental Income Situations, were amended to reflect 105% of the current poverty guideline, or $240 per week for one person.
In addition, Section 14(e), Shared-Parenting Arrangements, was amended to include the current 2016 Poverty Guideline for the Shared-Parenting Primary Household Net Income Thresholds.
Appendix IX-B - Use of the Child Support Guidelines - General Information; Line Instructions for the Sole-Parenting Worksheet; Line Instructions for the Sole-Parenting Worksheet; Line Instructions for the Shared-Parenting Worksheet
Line 2(a), Withholding Taxes, specifically delineates four methods to determine the amount of combines income tax withholding to be deducted from gross income. Section 2(a)(l)(b)(3)(a) and (b) were amended to include a threshold income of $70,000.
Line 25, 26 , and 27, Maintaining a Self-Support Reserve, was amended to reflect 105% of the current U.S. Poverty Guideline for one individual which is $240 per week.
Appendix IX-H - Combined Tax Withholding Tables for Use with the Support Guidelines
The comments to the Federal Income Tax table were updated to include the federal income tax withholding rates to use in 2016.
Appendix XXIX-A through D
These appendices were implemented as a result of the new court rule 5:1-5.
#8415772,1 -44-
AMENDED C I NEW STATUTES
N J Stat. S 1:1-2
The legislature add«d the definition of "certified mail" to include "private express canier service, provided that the private express carrier service provides confirmation of mailing." The confirmation may be done by electric means and should include the date and time of mailing, date and time of delivery, signature or other proof of delivery.
N.J. Stat. § 2A:4-30 - The Uniform Interstate Faimiiy Support Act ("UIFSA")
The 2008 Amendments to UIFSA were enacted nationwide, with New Jersey as the last state to enact the provisions effective April 1, 2016. The amendments modify the original Act to comply with the obligations established in the 2000 Hague Convention on Maintenance, which was signed in 2002 The amendments provide a pathway for United States orders to be enforced abroad. In addition, UIFSA ensures that children withm the United States will receive financial support for their parents regardless of where they reside. Specifically, Article 7 of UIFSA was estabhshes guidelines and procedures for the registration, recognition, enforcement, and modification of foreign support order that are parties to the Hague Convention.
N.J $tat. $ 2C:25-19 - Domestic Vcolence Amendment
The legislature amended the statute to allow individuals seeking temporary and permanent restraining order under the "Prevention of Domestic Violence Act of l^l" to do so as victims of evber-harassment. There are now 15 predicate offenses through which victims may seek protection under the "Prevention of Domestic Violence Act of 1991.
I I
jjJL Stat. § 37:1-13 - Authorization to Solemnize Marriages and Civil Unions f
The legislature amended the statute to include retired administrative law judges and in general, "a tax court" among the individuals able to solemnize marriages or civil unions between those lawfully eligible to enter intro marriage or civil unions.
N.J. Stat. ^ 52:176-194.3 - Estpblishment of^Amber'sPIan"
The legislature amended the Amber and Silver Alert statutes to require the Attorney General, alongside the State P olice, to implement a new plan to include the release of Amber and Silver Alerts through the social media accounts maintained by State Police. In addition, other appropriate State, county and municipal entities are also authorized to release information. The statute now requires a description and photograph of the missing individual and any known details regarding the disappearance and/or abduction.
#8415772.1 -45-