By: John P. Paone, Jr.*

For loyal followers of the annual Top Ten, 2016 will be remembered as the year that Judge Lawrence R. Jones announced his intention to retire from the bench.  Judge Jones went out with a flurry of reported and unreported family law opinions.  While his time on the bench was short, the impact he has had and will continue to have on the practice through his written opinions is likely to be long lasting.  The Top Ten will undoubtedly miss Judge Jones and wishes him well on his future career endeavors.

In 2016, the Supreme Court weighed in on cases involving equitable distribution, cohabitation, and grandparent visitation.  The Appellate Division addressed the role of “savings” in computing an alimony award, as well as cases involving college education, domestic violence, child relocation and retirement.

The following are my selections for the ten most important reported family law cases decided in 2016.  This presentation will review each opinion and the impact that it will have upon our practice.  Practice tips will also be discussed as to how matrimonial attorneys can best utilize these decisions.

Thieme v. Aucoin-Thieme, ______ N.J. ______ (2016)

Issue:  Is a spouse precluded from seeking a portion of a bonus awarded to the other spouse for efforts undertaken during a period when the parties were not married, but were cohabiting?

Holding: No.  New Jersey’s equitable distribution statute only authorizes equitable distribution of the bonus to the extent that the bonus was earned during the marriage.  However, in extraordinary circumstances, a constructive trust can be imposed over the portion of the bonus earned during the period of cohabitation, as an equitable remedy for unjust enrichment.

Discussion:  The parties in this case met in 2000, moved in together in 2002, had a child together in 2003, but did not legally marry until 2010.  During this period of time, the husband worked “non-stop” for the same employer, a biotechnology consulting business, working 90 to 100 hours per week to help develop and grow the company.  The wife agreed not to pursue her career, and took over almost all of the caretaking responsibility for the parties’ child.  She also performed nearly all of the household tasks; conducted repairs to the home; paid the bills; and managed the parties’ rental properties.  The parties also moved from New Jersey, to Virginia, then back to New Jersey, in furtherance of the husband’s employment with the company.  During the course of the relationship, the husband wrote an email to the wife, in which he acknowledged that the wife had sacrificed her career and educational aspirations so that she could care for their daughter, and he could pursue his career.

The husband had no ownership interest in the company, and was not awarded stock in the company.  During his 13 years of employment with the company, his salary increased from approximately $40,000.00 per year to approximately $180,000.00 per year.

In 2002, the husband and the company signed a document which stated that the company recognized the husband’s contributions to the company, and that the husband would be compensated if the company was ever sold, without defining specifically what that compensation would be.

After only 14 months of marriage, the husband filed a Complaint for Divorce.  During the course of the settlement negotiations, the parties communicated about the possibility that the husband would receive a bonus, and the husband assured the wife that he would share such a bonus with her.

The parties were divorced in 2012 and agreed upon all issues in their case, including alimony, child support, custody, and an equal division of all marital property.  The Property Settlement Agreement had no binding effect on undisclosed assets, and did not address any bonus anticipated by the parties.

Approximately three months after the divorce, the husband received a $2.25 million bonus when his employer’s company was sold.  (There was no evidence that the husband knew he would be awarded this bonus during the divorce negotiations).

After a trial, a court in Hudson County concluded that the wife was entitled to equitable distribution only of the portion of the bonus which was attributable to the husband’s work during the marriage.  Thus, the trial court determined that the wife was entitled to $30,288.00 of the $2.25 million bonus (30% of the net bonus earned during the marriage).  The Appellate Division affirmed the trial court’s determination.

The Supreme Court of New Jersey affirmed in part and reversed in part.  New Jersey’s equitable distribution statute makes clear that property acquired during a period of cohabitation is not the equivalent of property acquired during the marriage for purposes of equitable distribution.  Here, no palimony claim was asserted by the wife.  Moreover, the cases of Weiss v. Weiss, 226 N.J. Super. 281 (App. Div. 1988) and Berrie v. Berrie, 252 N.J. Super. 635 (App. Div. 1991), cited by the wife, were distinguishable.   Nothing in Weiss suggests that premarital compensation earned by a spouse is subject to equitable distribution; indeed, the Appellate Division in that case limited the wife’s claim for equitable distribution of the increased value of the husband’s business to the period during which the parties were married.  As for Berrie, the contested asset was the increase in the value of the husband’s stock in his business during the several years prior to the parties’ marriage.  The Appellate Division relied heavily on the wife’s direct contribution to the business as a key employee in determining that the increased value of the stock might constitute an asset in contemplation of marriage for equitable distribution purposes.  Thus, it would contravene the plain language of the equitable distribution statute to determine that the portion of the bonus in this case that was earned prior to the marriage was a marital asset.

However, the Supreme Court did not end its inquiry there.  A claim for unjust enrichment exists when the opposing party receives a benefit, and his retention of that benefit without payment would be unjust.  To obtain relief under this doctrine, the plaintiff must show that she expected remuneration from the defendant at a time that she performed or conferred a benefit on the defendant, and that failure of remuneration enriched the defendant beyond his contractual rights.  In the event of unjust enrichment, the court may impose a constructive trust.

Thus, in the case of Carr v. Carr, 120 N.J. 336 (1990), the trial court considered the wife’s claims that she was entitled to equitable distribution or an elective share of assets owned by her husband, who died during their divorce proceedings.  Although the wife’s claims to both equitable distribution and an elective share were barred pursuant to the applicable statutes, the court concluded that a constructive trust was an appropriate remedy, awarding to the wife a share of the marital assets controlled by the husband’s estate.  The court reasoned that the estate’s retention of the share beneficially belonging to the wife would result in unjust enrichment.

Here, the Supreme Court found that the facts warranted the imposition of a constructive trust over the portion of the bonus which was earned during cohabitation.  During their relationship, the fact that the husband would one day be generously compensated by his employer was a significant factor in the personal and financial planning of the parties, and the record reflected that on multiple occasions, the parties discussed the possibility of this compensation.  Given the written commitment from the company, both parties had reason to believe that the husband would, in fact, receive such compensation.  Indeed, the husband was determined to retain his job, despite his work schedule and the impact it had on his family, and he actively opposed the wife seeking employment outside of the home so that she could care for their daughter and he could work.  Thus, the wife undertook significant efforts to support the husband’s career, maintaining almost all of the responsibility to care for their daughter; maintaining and repairing their homes; managing their rental properties; paying the bills; and relocating in furtherance of his career.  The husband himself recognized the wife’s sacrifices, and assured her that he would divide any future bonus with her.  The record supported the conclusion that the wife’s decision not to seek further education and employment was made, at least in part, in reliance on the husband’s financial commitment to her.

Thus, the Supreme Court remanded to the trial court to impose a constructive trust, and to determine the precise time period for which the bonus should be shared by the parties; the percentage of the bonus that should be allocated to the wife to avoid unjust enrichment; and the impact of taxes imposed on the husband by virtue of the bonus.

Observations:  The Court relied on Carr, which is a blackhole case where the relief of equitable distribution did not exist due to the death of one of the parties prior to the entry of divorce.  In Thieme, however, equitable distribution did exist but the Court believed that equitable distribution alone would not be equitable to the wife.  Wasn’t the better course to overturn the equitable distribution decision?  Instead, the Supreme Court affirmed the trial court’s mechanistic division of the bonus (i.e. dividing the bonus by the number of months the husband was employed by the company and then multiplying that number by the number of months the parties were married).  By this calculus the trial court concluded $201,923.00 of the bonus was earned during the marriage.  That lockstep division is not gospel and could have been challenged (i.e. who says the bonus was earned equally every day the husband worked for the employer).  Then, the trial court reduced this amount for taxes to $100,961.00 and then awarded the wife 30% or $30,288.00.  Usually, when we award less than 50% of an asset earned during coverture we do so in part taking into account tax consequences.  Here the trial court reduced the award for taxes and gave the wife only 30% of the net dollars…and the Supreme Court approved that award.

Instead of overturning the equitable distribution award as unfair—the Court imposed a constructive trust on that portion of the bonus the trial court stated was earned before the marriage, while the parties lived together.

Perhaps the good news of Thieme is practitioners with palimony cases with no writing between the parties now have further ammunition for pleading their equitable claims of unjust enrichment, promissory estoppel, quantum meruit, implied contract, partial performance and a whole host of other quasi-contract claims.  However, remember that Maeker v. Ross, 219 N.J. 565 (2014) held that the new palimony statute only applied to agreements formed after January 18, 2010.  In this case, the parties lived together since 2002.  So it cannot be said that Thieme has undone the new palimony law.

Quinn v. Quinn, 225 N.J. 34 (2016)

Issue:  May a trial court suspend alimony for the period of time the alimony recipient cohabited, rather than terminate alimony as is required by the parties’ Property Settlement Agreement?

Holding:  No.  The trial court was required to apply the remedy of termination, as agreed to by the parties.

Discussion:  The parties in this matter were divorced in 2006 after 23 years of marriage, and entered into a Property Settlement Agreement.  Each party was represented by independent counsel at the time of entry of the Property Settlement Agreement.  In the Property Settlement Agreement, the husband agreed to pay alimony to the wife in the bi-weekly amount of $2,634.00, to be increased for inflation.  The wife agreed that the husband’s alimony obligation would terminate “upon the wife’s death, the husband’s death, the wife’s remarriage, or the wife’s cohabitation, per case or statutory law, whichever event shall first occur.”

Within two years of the Property Settlement Agreement, the wife was in a committed relationship with another man.  The husband moved to terminate his alimony obligation to the wife based upon cohabitation, and a plenary hearing was ordered.  Prior to the trial, the parties agreed that the facts would be evaluated under the definition of cohabitation as set forth in Konzelman v. Konzelman, 158 N.J. 185 (1999).

During the trial, the wife did not deny that she was in a romantic relationship with her paramour.  However, she disputed whether that relationship rose to the level of “cohabitation.”  Following a 16-day trial, the trial court concluded that the wife had been in an “intimate and committed relationship” that was “exclusive;” that the paramour had been living in the wife’s home for two years, despite maintaining his own residence; and that the relationship was recognized by the wife and the paramour’s family and social circle.  Thus, the trial court concluded that the wife had cohabited with her paramour, from January 2008 to April 2010.  (The wife’s relationship with the paramour ended one month after the husband filed his motion to terminate his alimony obligation.)

Because the cohabitation had ceased during the course of the trial, the trial court invoked its equitable powers in deciding to suspend, rather than terminate, the alimony obligation over the period of cohabitation, and to reinstate alimony once the cohabitation ended.  The trial court noted the great difference in the incomes of the parties in concluding that the wife was entirely dependent on alimony to support herself.  The Appellate Division upheld the trial court determination, concluding that the trial court did not exceed its equitable powers.

The New Jersey Supreme Court reversed the judgment of the Appellate Division.  Ordinarily, cohabitation provides a basis to modify or to terminate alimony “only if one cohabitant supports or subsidizes the other under circumstances sufficient to entitle the supporting spouse to relief.”  Gayet v. Gayet, 92 N.J. 149, 153-54 (1983).  However, the Court noted that it is not the function of a court to revise or to rewrite the terms of a Property Settlement Agreement, if those terms are clear and there is no evidence of unconscionability, fraud, or overreaching.  Thus, when divorcing parties establish in their Property Settlement Agreements circumstances that will terminate alimony, including cohabitation, such Agreements should be enforced, even if the cohabitation did not result in changed financial circumstances.

Here, the evidence at trial supported the trial court’s conclusion that cohabitation, as defined by Konzelman v. Konzelman, had occurred, as the wife was in a serious, consistent, and stable relationship with her paramour.  Accordingly, the husband was entitled to a termination of his alimony obligation, in accordance with the terms of the Property Settlement Agreement.  The fact that the cohabitation subsequently ended was irrelevant, and did not warrant the trial court’s deviation from the express terms of the Property Settlement Agreement.  The Supreme Court concluded that the facts of this case were no different from a remarriage that terminates by death or divorce.  Moreover, the wife did not dispute that she entered into the Property Settlement Agreement knowingly and voluntarily, with the assistance of independent counsel.  Thus, the Supreme Court concluded that the husband was entitled to full enforcement of the terms of the Property Settlement Agreement.

Observations:  Quinn makes clear that parties can contract away the economic needs standard set forth in Gayet v. Gayet, 92 N.J. 149 (1983).  Writing in dissent Justice Albin argues “anti-cohabitation clauses unrelated to the economic standing of an ex-spouse should be contrary to public policy because they serve no purpose other than as instruments of oppression.” However, the Supreme Court already sanctioned such clauses in Konzelman v. Konzelman, 158 N.J. 185 (1999) when it terminated alimony based on a clause that did not provide for economic testing but terminated alimony if the cohabitants resided together for four consecutive months.  But see Melletz v. Melletz, 271 N.J. Super. 359 (App. Div. 1994) which makes clear that without economic needs testing the court will not enforce termination provisions based on a mere romantic, casual, or social relationship.

For practitioners, the question arises how important will economic needs testing be in cohabitation cases decided under current law where there is no anti-cohabitation clause.  On September 10, 2014, the Alimony Reform Act included a new legal definition of cohabitation, which sets forth 7 factors the court is to consider in determining whether alimony should be modified or terminated.  Of the 7 factors included in that definition, only 3 appear to have a financial nexus:

  1. Intertwined finances such as joint bank accounts and other joint holdings or liabilities;
  2. Sharing or joint responsibility for living expenses;
  3. Whether the recipient of alimony has received an enforceable premise of support from another person within the meaning of subsection h. of R.S.25:1-5.

It is unclear whether a payor can prevail by establishing some but not all of these factors.  Under Gayet, a financial nexus was necessary to terminate alimony.  As it appears that all 7 factors now are on an equal footing, will it be possible to find cohabitation under the new law with no financial nexus between the alimony recipient and the cohabitant?  For an insightful discussion of cohabitation under alimony reform, see Murphy, Cohabitation and the Amended Alimony Statute:  Has the Economic Needs Standard Been Replaced?  36 N.J.F.L. 6 (June 2016).

Major v. Maguire, 224 N.J. 1 (2016)

Issue: Did the trial court err in dismissing the plaintiffs’ complaint for grandparent visitation and failing to adopt procedural guidelines for future proceedings in this matter?

Holding: Yes.  The New Jersey Supreme Court held that the plaintiffs established a prima facie case of showing harm to the child under Moriarty v. Brandt, 177 N.J. 84 (2003), and should have been given an opportunity by the trial court to satisfy their burden of proving harm.  The New Jersey Supreme Court further held that the trial court should have invoked procedural guidelines, by way of case management conferences and discovery schedules, to allow the plaintiffs an opportunity to meet their burden.

Discussion:  The plaintiffs’ son, Anthony Major (hereinafter “Major”), and the defendant, Julie Maguire, resided together from 2007 until 2009 and had a child together during the course of their relationship.  The parties separated in December 2009 after the plaintiffs’ son was diagnosed with cancer.  They shared joint physical custody of the child during their separation.

Prior to Major’s separation from the defendant, the plaintiff grandmother visited her granddaughter approximately once every two weeks.  After Major’s health declined, her contact with her granddaughter significantly increased.  She visited her granddaughter at her son’s home every weekend, and frequently took her on trips and vacations.  The plaintiff grandfather also visited the child, and often cared for her while his son was undergoing medical treatment.

After Major’s death on February 21, 2013, the defendant reduced the plaintiffs’ visitation with the granddaughter considerably.  The plaintiffs asserted that the defendant had permitted them to see their granddaughter only twice in four months, for a brief visit at a skating rink and for five minutes after a dance recital.

The lack of visitation with the grandchild prompted the plaintiffs to file a uniform “Verified” Complaint” in the Family Part compelling visitation under the Grandparent Visitation Statute, N.J.S.A. 9:2-7.1.  At the initial hearing, the defendant contended that the plaintiffs failed to establish a prima facie showing of harm to the child in the absence of visitation.  As a result, she requested that the court dismiss the plaintiffs’ complaint for grandparent visitation.  The plaintiffs responded by noting the harm that would be inflicted on the child if she had to go through life without any connection to her deceased father or his family.

The trial court stated that the complaint failed to make the necessary showing of harm.  While the court permitted the plaintiffs to supplement the complaint with their testimony, it did not allow expert testimony on the issue of harm.  The evidence that the plaintiffs presented expressed their view that their granddaughter would suffer harm if deprived of a continued relationship with them.

The trial court determined that the complaint, as amended by the plaintiffs’ testimony, failed to demonstrate a particularized harm to the child in the absence of grandparent visitation.  The court further found, in relying on the Appellate Division decision in Wilde v. Wilde, 341 N.J. Super. 381, 397 (App. Div. 2001), the complaint to be premature because there was no showing that the plaintiff had attempted to mend the relationship with the defendant before filing the complaint and that the defendant had denied visitation with finality.  In accordance with its findings, the trial court granted a motion for dismissal under R. 4:6-2, thus denying the plaintiffs’ request for visitation rights.

Thereafter, the plaintiffs filed an appeal seeking to overturn the dismissal in the lower court.  The Appellate Division invoked the procedural guidelines set forth in R.K. v. D.L., 434 N.J. Super. 113 (App. Div. 2014), allowing discovery schedules and case management conference in certain grandparent visitation cases, and concluded that the trial court’s approach was inconsistent with governing statutory and case law.  Although the Appellate Division acknowledged that its opinion in R.K. came after the trial court’s opinion in this case, it reversed the decision of the trial court remanded the matter back with directions to re-examine the complaint under R.K.

The New Jersey Supreme Court granted certification regarding the merits of the plaintiff’s complaint and the application of R.K. in this action.  The defendant implored the Court to reverse the Appellate Division decision in R.K. because it is directly in conflict with this Court’s holding in Moriarty that protects a parent’s constitutional right to raise their child.  Moriarty requires the moving party, by a preponderance of the evidence, to make a prima facie showing that harm to a child will result if there is no grandparent visitation.  The defendant additionally argued that the mechanisms for providing case management conferences in grandparent visitation cases as outlined in R.K. are unduly burdensome and confusing in application to both courts and litigants.

The plaintiffs combatted these arguments by claiming that R.K. provides a thoughtful and sensible approach to protect the rights of parents and grandparents.  They contend that a summary proceeding and subsequent dismissal of their complaint, without the benefit of case management conferences and discovery, was inappropriate since there was a genuine material question of fact about harm to the child.

The Court found that the dismissal of the plaintiff’s complaint was in error. It claimed that the plaintiffs’ proofs not only raised a cognizable claim sufficient to withstand dismissal under R. 4:6-2, but they also satisfied their prima facie obligation of showing harm to the child under N.J.S.A. 9:2-7.1 and Moriarty.  The Court believed that harm to the child was at stake because the absence of grandparent visitation stemmed from the loss of one of the child’s parents rather than from a divorce or separation.  The Court was also convinced that there was evidence introduced by the plaintiffs in the trial court that the child was close to Major, who shared joint custody with the mother, and that the plaintiffs were the only relatives on Major’s side of the family with whom the child had a relationship.  The Court maintained that the plaintiffs had taken an active role in caring for the child when Major was sick.  Specifically, the plaintiff grandmother attended dance recitals, traveled with the child, and visited the child every weekend when she was staying at Major’s home.

In ruling that the dismissal of the plaintiffs’ complaint was improper, the Court also reviewed the Appellate Division’s case management recommendations for grandparent visitation cases as articulated in R.K.  The Court disagreed with the defendant’s position that R.K. sought to erode the presumption of parental autonomy as formulated in Moriarty.  Instead, the Court asserted that the appellate panel’s recommendations in R.K. enhanced the constitutional standard for parental autonomy. The Court explained that while R.K. did not require case management procedures in every grandparent case, it attempted to strike a balance between the right of grandparents to make their prima facie case and the privacy of a parent who has a fundamental right to raise their child without interference.

The Court also critically examined six factors which are to serve as the guiding principle for trial courts when faced with an action under the Grandparent Visitation statute, N.J.S.A. 9:2-7.1.  First, trial courts must look to R. 5:5-7(c), which requires courts to hold initial and final case management conferences for grandparent visitation cases that are placed on the “complex” track.  Second, when a party seeks to have the matter listed as “complex,” they should file a non-conforming complaint under R. 5:4-2(i) so that they can include a more specific allegation of harm in their pleadings.  Third, in the event that fact discovery is required, the parties should work together with the court to identify the volume and scope of discovery that is needed (i.e. interrogatories, notice to produce, depositions).  Fourth, trial courts must exercise discretion in allowing the use of expert reports by taking into consideration family resources, the privacy of the child, and an expert’s potential value to the case.  Fifth, trial courts should not hesitate to dismiss grandparents’ complaint for visitation after the discovery stage if they have failed to make a requisite showing of harm.  If they fail to sustain their burden, trial courts should then proceed to dismiss the complaint either by R. 4:67-5, for summary action, or by way of summary judgment pursuant to R. 4:46-2(c) for a complex case.  Finally, trial courts should encourage parties to mediate these disputes whenever possible commensurate with New Jersey’s strong public policy for alternative dispute resolution.

In diligently applying these principles, the New Jersey Supreme Court instructed the trial court on remand to manage this case under R. 5:5-7(c).  It added that the trial court should use the case management mechanism as a way to gage the need for discovery schedules, motion practice, and mediation sessions.  If the plaintiffs fail to meet their burden of proving harm past the pleadings stage, the trial court should not hesitate to entertain a motion for summary judgment.  However, if the plaintiffs satisfy their burden, the trial court must endeavor to devise a suitable visitation schedule so that the grandparents will have meaningful visitation time that is in the best interests of the child.

Observation:  Not all FD matters can be treated in a summary fashion.  Indeed, some matters such as a contested grandparents visitation case can be quite complex requiring Case Management Conferences, discovery schedules, expert evaluations, etc.  In Major, the Court provides a roadmap for treating complex FD matters with the same seriousness as FM cases.

Lombardi v. Lombardi, ______ N.J. Super. ______ (App. Div.), certif. denied ________ N.J. ________ (2016)

Issue:  Does the parties’ history of regular savings during the marriage require the inclusion of savings as a component of alimony, even when the need to protect the supported spouse does not exist?

Holding:  Yes.  Regular savings must be considered in a determination of alimony, even when there is no need to create savings to protect the future payment of alimony.

Discussion:  The parties were married in 1990, and three children were born of the marriage, now ages 20, 18, and 15.  After 20 years of marriage, the wife filed a Complaint for Divorce.  The trial court entered a Final Judgment of Divorce on March 7, 2014.

At the time of the entry of the Final Judgment of Divorce, both parties were 48 years old and healthy.  The wife worked part time as a fitness instructor, earning approximately $10,000.00 per year.  The wife held a bachelor’s degree in marketing, and previously worked as the Vice President of desktop publishing at Bear Stearns.  However, the parties agreed that she would leave the workforce to become a full-time homemaker after their first child was born.

The husband was employed full time as a portfolio manager at the time of the entry of the Final Judgment of Divorce.  He earned total compensation ranging from $1,087,000.00 to $2,275,000.00 over the five years preceding the Complaint for Divorce.

It was undisputed by the parties that they routinely saved significantly during the marriage.  The parties thus lived a comfortable, but not extravagant, lifestyle during the marriage.  According to the husband, the parties intended for him to retire at age 45, and would live on a projected $5 million in assets at that time.

Prior to trial, the parties resolved between themselves the issues of custody and parenting time and equitable distribution of the assets.  They also agreed that the wife was entitled to permanent alimony.  Thus, the issues presented to the trial court over the course of a 28-day trial were limited to the amount of alimony, and counsel fees and costs.

At trial, it was established that the parties spent $22,900.00 per month, exclusive of savings and gifts, to maintain their lifestyle.  The wife estimated that the parties saved an additional approximate $67,000.00 per month.  As for assets, in addition to their savings, which totaled $4.18 million at the time of the entry of the Final Judgment of Divorce, the parties owned the former marital residence; had established college savings accounts for all three children; and generally did not carry debt, aside from the mortgage on the former marital residence, a loan on a vehicle, and a lease on another vehicle.

The wife claimed to need $16,291.00 per month to support herself and the children at the marital standard of living, which was not disputed by the husband.  The trial court largely approved of the wife’s budget, and ultimately concluded that her needs totaled $14,516.00, exclusive of savings.

However, the wife also sought an additional $30,000.00 per month in support, representing a savings component.  After the trial, the trial court awarded the wife permanent alimony in the amount of $7,600.00 (after deducting from the wife’s budget child support, unearned income on investments, and the wife’s earnings), but did not include any amount for savings.

The trial court concluded that including savings as a component of an alimony award is only warranted to the extent it is necessary to ensure a dependent spouse’s economic security in the face of a later modification or termination of support.  The trial court observed that each party was leaving the marriage with half of the marital estate totaling approximately $5.5 million, allowing the wife significantly to invest; the children’s college expenses were already accounted for by way of custodial accounts; the wife was retaining the former marital residence unencumbered by a mortgage; the husband was responsible to pay 100% of the children’s health insurance and unreimbursed medical expense costs; the husband was required to maintain a $2 million life insurance policy; and the alimony award to the wife allowed her some room to save.  The trial court also noted the fact that the husband’s assets and income made it unlikely that he would ever obtain a modification of his alimony obligation to the wife in the future, even if the wife elected to work and therefore earn more.

On appeal, the Appellate Division vacated and remanded the trial court decision, agreeing with the wife’s argument that savings is a fundamental element which must be accounted for in establishing an alimony award.  The Appellate Division stated that savings has been a component of alimony award which has been long recognized, citing to the 1956 case of Martindell v. Martindell, 21 N.J. 341.  A savings component allows for “reasonable savings to protect [the supported spouse] against the day when alimony payments may cease because of [the death of the supporting spouse] or change in circumstances.” Davis v. Davis, 184 N.J. Super. 430, 437 (App. Div. 1982) (internal citations omitted).  In this fashion, savings has often been used as security for alimony, in lieu of life insurance or a trust.  Because alimony is subject to modification based upon a change in circumstances, thus rendering the supported spouse incapable of supporting himself or herself, savings has been recognized as a factor to be considered in the initial alimony award.

Moreover, there are other reasons justifying the inclusion of savings in an alimony award.  Savings allows the supported spouse to meet his or her needs in the event of disaster; to make major acquisitions such as vehicles; or to meet his or her needs upon retirement.  The Appellate Division also noted the fact that the “most appropriate case” in which to include savings in an alimony award is that in which the marital lifestyle was characterized by regular savings.  Thus, “[b]ecause it is the manner in which the parties use their income that is determinative when establishing a marital lifestyle, there is no demonstrable difference between one family’s habitual use of its income to fund savings and another family’s use of its income to regularly purchase luxury cars or enjoy extravagant vacations.”  Finally, the Appellate Division noted the fact that the Case Information Statement form includes a line item for savings, representing a change from the initial form.

Therefore, the Appellate Division rejected the contention that savings could be addressed adequately through equitable distribution, particularly since it would be inequitable for the wife to have to rely upon assets to support the marital standard of living, while the husband would not.   Accordingly, the Appellate Division concluded that a trial court must consider the savings component of the marital lifestyle when establishing alimony, even if there is no risk that alimony will be modified or terminated in the future.

Observations:  In reaching its decision, the Appellate Division acknowledged that “the majority of other jurisdictions have not extended their courts’ consideration of the savings component of an alimony award to the extent we do today.”  As the Supreme Court has denied certification, for now the Appellate Division has the last word on defining savings in an alimony award.

The Appellate Division tells us there must be a savings component but has left for the trial court to figure out what this means in terms of an alimony award.  If the parties saved $67,000.00 per month, is alimony to be increased by $33,500.00 per month?  If savings is decoupled from the legitimate concerns of death and change of circumstances, how is this award of post-complaint savings to be calculated?  Left unbridled, such an award could result in the transfer of earning capacity that the Supreme Court rejected in Stern v. Stern, 63 N.J. 340 (1975).

Perhaps what distinguishes Lombardi from the average case is that here the parties made savings a fundamental element of their marital lifestyle.  In other words, savings did not just happen, rather the parties made choices to shovel their own snow, clean their own home, eat at home and not at restaurants, etc. in order to accumulate savings. Proof of such a conscious lifestyle choice may be the polestar for including a savings component as part of the alimony calculus.

Landers v. Landers, 444 N.J. Super. 315 (App. Div. 2016)

Issue:  Is it error for the trial court to apply a rebuttable presumption terminating alimony when the payor spouse reaches full retirement age, if the parties entered into a Final Judgment of Divorce prior to the September 10, 2014 amendments to the alimony statute?

Holding:  Yes.  The New Jersey legislature distinguishes between alimony orders entered prior to the amendment’s September 10, 2014 effective date (in which case a rebuttable presumption does not apply upon full retirement age, pursuant to N.J.S.A. 2A:34-23(j)(3)), and alimony orders entered into after the amendment’s effective date (in which case such a rebuttable presumption does apply, pursuant to N.J.S.A. 2A:34-23(j)1)).

Discussion:  The parties were married for 22 years before their Final Judgment of Divorce was entered on June 24, 1991.  The Final Judgment of Divorce included a provision requiring that the defendant husband pay a declining amount of unallocated support to the plaintiff wife and their children.  The Final Judgment of Divorce further provided that alimony would automatically terminate upon the death of either party, or the remarriage of the wife.  No reference was made to the husband’s retirement.

After 24 years of making timely alimony payments to the wife, the husband moved to terminate his alimony payments at the age of 66.  The husband’s application was premised upon his retirement, which in turn was driven by his medical conditions.  The wife sought a continuation of alimony based upon her own medical conditions and continued need for support.

The trial court analyzed the husband’s request by applying the rebuttable statutory presumption and factors outlined in N.J.S.A. 2A:34-23(j)(1).  After concluding that the wife failed to overcome the presumption that alimony terminates upon an obligor obtaining full retirement age, the trial court granted the husband’s motion.

The Appellate Division vacated and remanded the trial court decision.   The portion of the alimony statute addressing retirement distinguishes between alimony orders executed prior to the amendment’s effective date, and alimony orders executed after the effective date.  N.J.S.A. 2A:34-23(j)(1) provides that “[t]here shall be a rebuttable presumption that alimony shall terminate upon the obligor spouse or partner attaining full retirement age,” and that the rebuttable presumption may be overcome after consideration of the factors enumerated in that subsection of the statute.  In contrast, N.J.S.A. 2A:34-23(j)(3) provides that, “[w]hen a retirement application is filed in cases in which there is an existing final alimony order or enforceable written agreement established prior to the effective date of this act, the obligor’s reaching full retirement age…shall be deemed a good faith retirement age,” and the court shall consider the different factors enumerated in that subsection of the statute.  Thus, the rebuttable presumption included in subsection (j)(1), which places the burden on the obligee to demonstrate continuation of the alimony award once an obligor attains full retirement age, is not repeated; and the Legislature signaled an intention to address applications made under the two different subsections of the statute differently.  Accordingly, it was error for the trial court to have placed the burden of proof on the wife in this case.

Observations:  The husband points out that he had been paying alimony for 24 years in a marriage which was only 22 years in duration.  While such a circumstance may not have been uncommon under the old law of permanent alimony, even under alimony reform such a scenario is quite plausible.  The parties were married for 22 years, such that under the current law we would likely be dealing with open durational alimony.  Therefore, litigants should be advised that alimony could well exceed the length of the marriage even in the age of alimony reform.

Remember Landers as, who has the burden in retirement cases?  Answer: For agreements or final alimony Orders entered on or after September 10, 2014, when the payor reaches full retirement age, the rebuttable presumption places the burden on the party receiving the alimony to justify continuation of the payment.  For agreements or final alimony Orders entered prior to September 10, 2014, unless the parties agreed otherwise, it is the obligor who has the burden to demonstrate that modification or termination of alimony is appropriate.

For agreements or final alimony Orders entered on or after September 10, 2014, the ability of the recipient to have “saved adequately for retirement” is one of 11 factors the court is to consider when determining whether the rebuttable presumption is overcome.  For Agreements or final alimony Orders entered prior to September 10, 2014, the Appellate Division described this factor as having been “elevated,” suggesting that it may be given more weight in retirement applications for cases pre-September 10, 2014.

For agreements or final alimony Orders entered prior to September 10, 2014, reaching full retirement age is deemed a good faith retirement (not a rebuttable presumption that alimony should be terminated), leaving the obligor to demonstrate that modification or termination of alimony is appropriate under the eight factors.  Ability of the recipient to have “saved adequately for retirement” is not merely a factor, it is a standard that the court “shall consider” in determining whether the obligor has met the burden by the preponderance of the evidence to demonstrate modification or termination.

The factor itself is problematic, as, unless the parties agreed to alimony which included a savings component to address issues such as change in circumstances or retirement, how could the alimony recipient have “saved adequately for retirement”?  Perhaps when we devise our alimony awards, we need to break out that savings component and make it clear the intention is for the savings to be saved for that rainy day—here called retirement.

Bisbing v. Bisbing 445 N.J. Super. 207 (App. Div.),  certif. granted ______ N.J. ______ (2016)

Issue: Is a court required to apply the Bauers factors when a primary custodial parent seeks to relocate with a child in the face of a non-relocation provision that was executed by the parties as part of a Matrimonial Settlement Agreement (MSA)?

Holding:  No.  If a court finds that the MSA was negotiated in bad faith to thwart the non-custodial parent’s future defense to a relocation application or that the change in circumstances for relocation was anticipated, a court must apply the “best interests of the child” test to determine whether relocation is appropriate.

Discussion:  The parties in this action were married in 2005 and two children were born of the marriage.  The plaintiff, Jaime Bisbing, and defendant, Glenn Bisbing, were both business professionals employed in lucrative positions.  The parties ultimately separated in August 2013 and in November of that year, the plaintiff began a long-distance relationship with a resident from Utah.

On March 8, 2014, a MSA was executed between the plaintiff and the defendant.  While the parties agreed to joint legal custody over the children, the plaintiff was designated the primary residential custodian.  The plaintiff received residential custody on the condition that she would not relocate out of state.

The MSA also included a non-relocation provision under Article 1.9 that prohibited either party from relocating more than 20 miles from the other without consent.  The provision also stated that if a job necessitated a move, the parties would discuss the possibility of relocation together.  Pursuant to N.J.S.A. 9:2-2, children of divorced parents shall not be moved from New Jersey without the consent of both parties unless the court otherwise orders.

After the MSA was incorporated in the Final Judgment of Divorce on April 16, 2014, the defendant remained an instrumental figure in the children’s lives.  He participated in various recreational activities with them such as coaching their soccer team and regularly attending school events.  The plaintiff left her employment on July 1, 2014 to become a stay-at-home parent.

Thereafter, on January 8, 2015, the plaintiff telephoned the defendant to inform him of her intentions to marry the Utah resident and relocate with the two children to Utah.  The defendant responded that he had no issue with the plaintiff moving out of state provided that the two children remained in New Jersey.

Due to the plaintiff being unable to resolve the relocation issue with the defendant, she filed a motion with the trial court on March 16, 2015 seeking to relocate with the children to Utah.  On April 24, 2015, the court granted the plaintiff’s motion without a plenary hearing on the condition that a suitable parenting time schedule be negotiated with the defendant through mediation.  The trial court entered a supplemental order on July 14, 2015, which adopted many of the recommendations for parenting time that the plaintiff had made at the mediation.

Eleven days after the July 14, 2015 order was issued by the trial court, the plaintiff and two children left for what was described as a “vacation to Utah.”  Three days thereafter, the plaintiff and children permanently moved to Utah.  The defendant appealed the April 24, 2015 order of the trial court that failed to enforce the non-relocation provision of the MSA without conducting a plenary hearing on the issue.

The Appellate Division, in remanding the matter back to the trial court so that a plenary hearing could be conducted, questioned whether the plaintiff entered into the MSA in good faith.  Specifically, the court questioned whether the plaintiff agreed to the non-relocation provision in the MSA in order to position herself for a future relocation by relying on the analysis formulated in Baures v. Lewis, 167 N.J. 91, 116-18 (2001), that accords significant deference to the custodial parent’s right to receive happiness and fulfillment.

The Baures test is a two-pronged inquiry in which the moving party has to prove by a preponderance of the credible evidence that (1) there is a good faith reason for the move and (2) that the move will not be inimical to the child’s best interests.  There are twelve (12) factors that a court must scrupulously review in determining whether the moving party has met their burden for relocation.  These factors are identified as follows:

  •     the reasons given for the move;
  •     the reasons given for the opposition;
  •     the past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move;
  •     whether the child will receive educational, health and leisure opportunities at least equal to what is available here;
  •     any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location;
  •     whether a visitation and communication schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child;
  •     the likelihood that the custodial parent will continue to foster the child’s relationship with the noncustodial parent if the move is allowed;
  •     the effect of the move on extended family relationships here and in the new location;
  •     if the child is of age, his or her preference;
  •     whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent;
  •     whether the noncustodial parent has the ability to relocate any other factor bearing on the child’s interest

The Appellate Division noted that in order to determine whether Baures applied here, it had to first examine the custodial arrangement between the parties.  If the parents share joint legal and physical custody over the children, then any relocation application will analyzed based on the best interests test as espoused in O’Connor v. O’Connor, 349 N.J. Super. 381 (App. Div. 2002).  This means that the party seeking to change the joint custodial relationship would have to establish that the best interests of the children would be served by the residential custodial being vested with them.  Conversely, if one party maintains primary physical custody, then the two-pronged analysis in Baures would be controlling in a relocation case.

The court found it to be undisputed that the plaintiff was the primary caretaker for the two children.  However, the timeline of events leading up to the relocation of the plaintiff and children raised serious concerns about whether there were good-faith negotiations about custody.  At the time that the MSA was signed in March 2016, the plaintiff was already in a relationship with a resident from Utah for four (4) months.  Furthermore, only six (6) months after the FJOD, she informed the defendant that she would be moving out of New Jersey with the children.  The appellate panel explained that a plenary hearing was necessary because the defendant had made a prima facie case regarding the nature and circumstances in which the plaintiff negotiated custody.

In further support of its viewpoint that a plenary hearing was necessary to determine the legitimacy of the plaintiff’s relocation application, the appellate court referenced the decision reached in Shea v. Shea, 384 N.J. Super. 266 (Ch. Div. 2005).  In Shea, the parties entered into an agreement establishing joint legal custody while the defendant was designated parent of primary residence.  Four months after the divorce was finalized, the defendant filed an application to relocate with their child out of state.  The trial court in Shea held that the parties were entitled to a plenary hearing based on the series of events, which quickly arose after entry of the FJOD.

While the Appellate Division recognized that the settlement agreement in Shea did not include a non-relocation provision as in this case, it indicated that Shea provides a framework for how relocation cases should be addressed.  Thus, the intent and understanding of the parties at the time the agreement was signed would be critical to the merits of a removal application.  The court stated that the non-relocation language of the MSA certainly evidenced the intent to remain in New Jersey.  However, the non-relocation provision only contemplated removal in the event that a spouse obtained new employment and did not address the prospect of remarriage.

The appellate court, consistent with the ruling in Shea, provided the trial court with a procedural roadmap for evaluating the plaintiff’s relocation application on remand.  The Appellate Division stated that if the defendant is unable to demonstrate at the plenary hearing that the MSA was executed in bad faith, then the plaintiff has an opportunity to show that her marriage to the Utah resident constituted a substantial unanticipated change in circumstances.  In the event that the plaintiff is successful in showing that there is no bad faith and the marriage was a substantial unanticipated change in circumstances, the Baures factors are to be applied for purposes of relocation.  Alternatively, the court indicated that should the trial court determine that the agreement was negotiated in bad faith or that the marriage was anticipated by the plaintiff, relocation review must be conducted under the purview of the O’Connor best interests test.

Observation:  The Appellate Division’s opinion in Bisbing will not be the last word on the issue of relocation.  The New Jersey Supreme Court granted certification in this matter on September 7, 2016 to review the findings of the Appellate Division.  It is expected that among the number of items to be closely examined by the New Jersey Supreme Court will be whether the plaintiff actually bargained away her right to relocate by making a “knowing” statutory waiver of N.J.S.A. 9:2-2.  In order to make a knowing waiver, “a party must have full knowledge of [their] legal rights and intent to surrender those rights.”

Avelino-Catabran v. Catabran, 445 N.J. Super. 574 (App. Div. 2016)

Issue:  When deciding issues related to college costs, must a court go through the process of applying the Newburgh factors when there is a Property Settlement Agreement (PSA), which expressly enumerates how the college costs between the parents will be shared?

Holding:  No.  Courts need not apply the factors for college contributions in Newburgh v. Arrigo, 88 N.J. 129 (1982), when the parties have agreed on how to pay for college costs pursuant to a written settlement agreement.  Absent inequity or unanticipated changed circumstances, courts should abide by the plain language of the agreement which in this case provided that the parties were to pay the costs of college 50/50.

Issue:  When a child is required to seek student loans in order to reduce the costs associated with attending college, does that include a PLUS Loan which is secured by parents?

Holding:  No. PLUS Loans that can only be obtained by a parent and therefore do not represent a child’s financial aid that they receive to defray the costs of their college education.  In this case, the Appellate Division held that the PLUS Loan was not a student loan under the parties’ PSA.

Discussion:  The parties were married on June 18, 1993 and a Final Judgment of Divorce (FJOD) was entered on August 14, 2002.  Two children were born of the marriage, namely, Isabelle (17 years old) and Catherine (21 years old).

According to the terms of the Property Settlement Agreement that was incorporated into the FJOD, the parties agreed to be equally responsible for the children’s net college expenses.  The Agreement provided:

The minor children shall have an obligation to apply for any and all scholarships, student loans, grants and financial aid…After deductions for scholarships, student loans, grants and financial aid, the parties agree to be responsible for the net college educational costs for the children.  Net college costs will be split equally by both parties.

After the oldest child Catherine completed high school, she attended college at New York University starting in the Fall 2012.  The total cost of attendance at the school was $62,768.00.  However, the school also provided a financial aid package among which included a $12,720.00 scholarship, $3,000.00 available for work-study programs, and $7,900.00 for student loans.

Most importantly, the school also offered a federal aid package constituting $39,148.00 in PLUS Loans, which was delineated in an award letter as “the maximum amount …[a] parent may borrow.”  Following receipt of this letter by the defendant, he emailed the plaintiff and asked her how much in PLUS Loans they should borrow.  The plaintiff responded that they should take out $12,770.00 to cover the remainder of the balance that was owed towards Catherine’s college expenses.  She stated in her reply email to the defendant to “Please borrow the money on behalf of Catherine.”

On October 25, 2012, the defendant filed a motion seeking a modification of child support to reflect a split-parenting arrangement and an order to compel the plaintiff to pay for net college expenses and the PLUS Loans owed for Catherine’s Spring 2013 semester.  The plaintiff contended that there were no expenses owed as it related to Catherine’s college costs because the financial aid and assistance covered the entire balance.

As it related to the issue of child support modification, material financial disclosures were made which revealed that plaintiff’s gross income was $225,000.00 compared to the defendant’s gross income of $113,000.00.  This was substantially more than the $73,000.00 that they were each earning at the time of the divorce.

On May 1, 2013, the trial court entered an order granting in part and denying in part the request for contribution to Catherine’s education and the child support modification.  In its statement of reasons, the court elaborated that Catherine’s financial aid did not cover the full cost of college as the trial court did not deduct the PLUS Loans from the college expenses finding that PLUS Loans were loans of the parents.

The court also ordered that the parties pay 50% of the net college expenses, even though the parties were no longer earning equal incomes.  Although the court considered several of the factors in Newburgh, it relied primarily on the PSA, which memorialized the parties’ respective obligations for college costs.

Thereafter, the plaintiff appealed the order of the trial court, in pertinent part, contending that the trial court erred by not including the PLUS Loans as part of her daughter’s available financial aid and for its failure to apply the Newburgh factors in considering her contribution to college.

The Appellate Division first considered the argument regarding the extent of the plaintiff’s college contribution costs.  The court noted that family courts have substantial discretion to compel a parent to contribute to the costs of their child’s college education.  Based on this principle, the court found that the trial court did not abuse its discretion in compelling the plaintiff to contribute to 50% of the net college costs for the parties’ daughter.  As part of its reasoning, the Appellate Division reviewed the plain language of the PSA in which there already was a provision carved out for college contributions to be split by the parents on a 50-50 basis.  The court further stated that based on the parties reaching an agreement on college related expenses, there was no need to balance the twelve (12) factors in Newburgh.

The court maintained that the criteria of Newburgh should only be weighed if the agreement is silent about how college expenses are to be divided.  Additionally, the court referenced the fact that the plaintiff never relied on any of the factors in Newburgh before the lower court.

The appellate panel also did not find any merit to plaintiff’s argument that the PLUS Loans were actually financial aid that she was not responsible for repaying.  The court said it was undisputed that Catherine was unable to secure the loan for herself.  Therefore, the PLUS Loans were not “student loans” under the terms of the PSA.

The Appellate Division determined that the motion judge failed on both accounts by using an improper method for child support calculation and not providing a comprehensive statement of reasons.  The court expressed that deviation from the guidelines was necessary for the parties’ eldest daughter because she was living away from home and going to college.

The Appellate Division observed that the lower court did not provide a reliable statement of reasons for its decision, but merely commended the defendant for his well-reasoned plan for determining child support.  As a result of these errors, the Appellate Division remanded the child support issue back to the lower court so that support could established in accordance with N.J.S.A. 2A:34-23(a) and R. 5:6A.

Observation:  This Agreement was drafted when the child who is now attending college was only 8 years of age.  Rule 1:  Unless you possess a crystal ball, it will be quite difficult to project the parties’ financial circumstances ten (10) years into the future.  Indeed, the original language stricken from the PSA read that the parties would pay for college “commensurate with their ability at that time.”  Rule 2:  Unless you have that same crystal ball, how can you project the availability (or definition) of student loan financing in the future?  Here, the court relied on the fact that while for the benefit of the student, the PLUS Loan was actually the obligation of the parent and therefore, was not a “student loan” which otherwise would defray the obligation of the parents under the PSA.  Practitioners must be aware that New Jersey law regarding college education and federal law regarding the funding of college education have become serious political issues such that anyone in this environment who attempts to draft an Agreement which will not be effectuated until years down the road is playing with fire.  The better course is to leave the issue open (just like a trial court would do) and allow the law and the financial circumstances of the parties when each child is of age to apply to college to govern the issue.

A.M.C. v. P.B., ____ N.J. Super. _____ (App. Div. 2016)

Issue:  Did the trial court err when it concluded that a Final Restraining Order was not necessary to protect the plaintiff in a domestic violence matter from future acts of domestic violence, thereby denying the plaintiff a Final Restraining Order, even though it found that her husband had committed two predicate acts of assault over a three week period?

Holding:  Yes.  Given the inherently violent nature of these predicate acts; the fact that one of the assaults occurred in an attempt to prevent the plaintiff from seeking refuge in a women’s shelter; and the history of domestic violence, including violent behavior and threats of further violence, the need to protect the plaintiff from further domestic violence was self-evident.  Accordingly, the plaintiff was entitled to a Final Restraining Order as a matter of law.

Discussion:  The plaintiff obtained a Temporary Restraining Order against the defendant, a Newark Police Department police officer, on June 9, 2015.  The plaintiff alleged that, on that date, the defendant told her “he would make [her] life hell,” he could “harm [her] whenever he wants,” squeezed the plaintiff’s arm so strongly that he left visible bruises, then stated that he could “hurt [her] whenever he feels like it.”  These actions were undertaken in an effort to stop the plaintiff from leaving the home to go to a women’s shelter.

The plaintiff also alleged that, three weeks prior, the defendant tried to choke her and grabbed her arm, causing visible bruises on her neck and arm.

During the Final Restraining Order hearing, the plaintiff offered into evidence photographs which reflected the bruises she sustained on June 9, 2015, as well as during the incident three weeks prior.  The defendant denied that he ever assaulted the plaintiff.

The defendant also testified that he was never served with a copy of the Temporary Restraining Order, and only became aware of the Temporary Restraining Order after he received an anonymous telephone call informing him of its existence.

Following the trial, the trial court specifically found that the defendant committed the predicate act of assault on June 9, 2015, and three weeks prior.  However, the trial court denied the plaintiff’s request for a Final Restraining Order, concluding that the Final Restraining Order was not necessary to protect the plaintiff from further acts of domestic violence pursuant to Silver v. Silver, 387 N.J. Super. 112 (2006).  In reaching this conclusion, the trial court relied on the fact that the defendant had not been served with the Temporary Restraining Order, and therefore was not aware of its existence, but did not commit any acts of domestic violence during this time.  The trial court also cited to the facts that the parties had a short-term marriage and no children, and would have no need to interact in the future. The plaintiff thereafter appealed the trial court’s decision.

On appeal, the Appellate Division reversed the trial court determination and concluded that the plaintiff was entitled to a Final Restraining Order against the defendant as a matter of law.

Pursuant to Silver, supra, a trial court must engage in a two-prong analysis: first, the trial court must determine whether the plaintiff has proved by a preponderance of the evidence that the defendant has committed one or more predicate acts of domestic violence.  If so, the trial court must then consider whether a Final Restraining Order is necessary to protect the victim.

However, Silver stressed that many determinations as to whether a Final Restraining Order should be issued are “perfunctory and self-evident,” based upon the nature of the act alleged. Where, as here, a predicate act is an offense that involves the use of physical violence, the decision to issue a Final Restraining Order is most often “perfunctory and self-evident.”  Two factors often influence a trial court’s decision not to enter permanent restraints: the predicate act does not involve physical violence, or there is a lack of evidence of a prior history of domestic violence.  These factors were not present here.

Additionally, there was no basis for the trial court to rely upon the facts that the parties had no children together, and had a short-term marriage, in denying the plaintiff’s request for a Final Restraining Order.  First, a victim of domestic violence should be afforded the maximum protection from abuse the law can provide, regardless of the absence of children.  Second, the duration of the marriage is not a reliable predictor of the defendant’s future conduct, and is not a factor included by the legislature in the Prevention of Domestic Violence Act.

In light of the history of domestic violence, which involved physical violence and threats of violence, the defendant’s attempts to stop the plaintiff from leaving the home, and the fact that the issuance of a Final Restraining Order was indisputably in the plaintiff’s best interests, the issuance of a Final Restraining Order in this case should have been “perfunctory and self-evident.”

Finally, the trial court had an independent duty to explore why the judiciary failed to serve the Temporary Restraining Order on the defendant, or to notify his employer (the Newark Police Department) or other appropriate law enforcement agency of the existence of the Temporary Restraining Order.  As a matter of public policy, the trial court should not have considered the lack of service as a factor supporting the decision to deny the plaintiff the Final Restraining Order.

Observations:  The second prong of Silver, “is the FRO needed to protect the victim from further acts of domestic violence” is frequently invoked in defending these cases.  After A.M.C., it will likely be difficult for defendants to meet the second prong of Silver in cases where there is a prior history of domestic violence or where the commission of the predicate act involves physical abuse against the victim.

Matison v. Lisnyansky, 443 N.J. Super. 549 (App. Div. 2016)

Issue:  Can the fugitive disentitlement doctrine be utilized as a basis to deny a litigant relief relating to palimony and custody?

Holding:  Yes.  A father may not obtain the protection of the judicial system to appeal a palimony and custody default judgment while he remains outside the country, avoiding arrest on an outstanding child support bench warrant.

Discussion:  The plaintiff (mother) and the defendant (father) had two twin children in 2004.  In 2006, the father purchased a $1.9 million home in Franklin Lakes for the family.  In addition, he paid for substantial renovations to the home, as well as a nanny, secretary, and interior decorator.  During this time, the father returned to Europe to conduct business, while the mother and the children remained in New Jersey.  Eventually, the mother and the children moved to a new home in Tenafly, the children enrolled in private school, and the father continued to support the family from abroad.

After the father ceased supporting the children, the mother obtained an Order for child support in 2012, which included a warrant for the father’s arrest in light of the child support arrears owed by him.  The matter was then scheduled for trial, at which the father did not appear.  Following a four-day trial, the trial court entered a default judgment against the father.  The father then filed a Motion to vacate the default judgment, which was denied, and his appeal followed.

The Appellate Division cited to the fugitive disentitlement doctrine for the premise that a fugitive is prohibited from seeking relief from the same judicial system whose authority he evades.  The case of Matsumoto v. Matsumoto, 171 N.J. 110 (2002), set forth a four-prong test under which the doctrine applies: 1) the party against whom the doctrine is to be invoked must be a fugitive in a civil or criminal proceeding; 2) his fugitive status must have a significant connection to the issue with respect to which the doctrine is sought to be invoked; 3)  invocation of the doctrine may be necessary to enforce the judgment of the Court or to avoid prejudice to the other party caused by the adversary’s fugitive status; and 4) invocation of the doctrine cannot be an excessive response.

Here, the father sought to avoid his court-ordered support obligations to his children, while simultaneously seeking relief from the court on other issues.  Moreover, the father was already afforded contact with his children, and offered no alternative relating to custody, instead waiting simply to seek to vacate the default judgment after the fact.  Under these circumstances, the Appellate Division concluded that he could not be afforded the protection of New Jersey courts, while simultaneously violating court Orders overseas.

Observations:  This case is important because it appears to expand the fugitive disentitlement doctrine beyond that crafted by the New Jersey Supreme Court in Matsumoto v. Matsumoto, 171 N.J. 110 (2002).  In Matsumoto, Justice Virginia Long declined to exercise the doctrine as to the issue of custody finding that “a parent’s right to the custody and companionship of his or her child is a fundamental one” and that “such a right cannot be extinguished or limited because of litigation misbehavior.”  Id. at 133.  Nevertheless, the Appellate Division in Matison invokes the doctrine regarding custody notwithstanding the proscription in Matsumoto.  In this regard, it can be argued that the Appellate Division has relaxed the nexus test and has adopted the position argued by Justice Verniero who wrote the dissent in Matsumoto.

Mueller v. Mueller ____ N.J. Super. ____ (Ch. Div. 2016)

Issue:  May a party terminate or modify their alimony obligation based on a “prospective” retirement in five years?

Holding:  No.  A motion that is filed with the court to terminate or modify a spousal support obligation based on prospective retirement in five years is too far in advance for the court to undertake an objectively reasonable analysis of the application in accordance with N.J.S.A. 2A:34-23(j).

Discussion:  The plaintiff husband was required to pay $300.00 in permanent alimony to the defendant wife pursuant to the terms of their Matrimonial Settlement Agreement in which the parties divorced in 2006 after a 20-year marriage.  The agreement was silent about retirement and how it would impact ongoing alimony obligations.

Subsequent to the execution of the parties’ MSA, on September 10, 2014, the New Jersey Legislature formally amended the state’s alimony statute, N.J.S.A. 2A:34-23.  The amendments to this statute addressed the termination or modification of a spouse’s alimony obligation based on actual or prospective retirement.  The new sections which cover this issue are N.J.S.A. 2A:34-23(j)(1) concerning termination of an alimony obligation established in an order entered on or after September 10, 2014 and N.J.S.A. 2A:34-23(j)(3) concerning termination of an alimony obligation established in an order entered before September 10, 2014.  “Full retirement age” is a triggering event for modification of alimony and is articulated in N.J.S.A. 2A:34-23(j)(2) as being the age at which a person is eligible to receive full retirement benefits under Section 216 of the Federal Social Security Act.

In response to the new legislation, the plaintiff filed a post-judgment motion in early 2016 to prospectively order that his alimony obligations end when he reached the age of sixty-two.  The defendant, then fifty-seven years old, claimed in the trial court that he intended to retire at sixty-two and that he would be entitled to full employment-related pension benefits at that age.  He also indicated that if the application to prospectively terminate alimony were not granted, it would jeopardize his ability to retire in five years because his pension would not be enough to cover both his living expenses and alimony obligations.

The trial court concluded that while the new alimony amendment did not carve out a designated time frame for an advanced ruling on prospective retirement, the plaintiff’s application for such relief was entirely premature.  The court explained that the spirit of the amended alimony statute contemplated that prospective retirement would take place within “reasonable proximity” to the application.

Here, the court determined that five years before expected retirement was not within a reasonable proximity to the plaintiff’s post-judgment application.  As part of its reasoning, the court stated that the plaintiff’s application inherently invited speculation as it would be unable to conduct a thorough evaluation of financial issues, health situations, and other important factors that may arise as the plaintiff moves closer to the age of retirement.

Not only was it difficult for the court to forecast what the finances of both parties would be five years before prospective retirement, but the court was not satisfied that the plaintiff had established a specific and comprehensive proposal for retirement.  The court considered that plaintiff was only fifty-seven years at the time of the motion and testified that he could work at least another five years.  His mere wish or desire to retire at sixty-two was not enough for the court to make any decision as to modification or termination of alimony under the new alimony statute.

As a rule of thumb, the court also proposed that the plaintiff’s application be brought “approximately twelve to eighteen months” before prospective retirement.  This would give both parties a better understanding as to their lifestyles and whether retirement would be almost a certainty rather than a mere possibility.

Observation:  In 2016, Judge Lawrence Jones had another prolific year writing opinions.  Sadly, the judge has elected to leave the bench which will undoubtedly leave a void in the Ocean County Family Court and in future Top 10 presentations.  In 2016, Judge Jones wrote the following published and unpublished opinions:


Mills v. Mills (loss of employment and modification of alimony)

Harrington v. Harrington (retroactive emancipation and modification of unallocated child support among multiple children)

Fichter v. Fichter (child support guidelines and auto insurance)

  1. v. B.C. (knowing violation of a Restraining Order and domestic violence)
  2. v. E.G. (threatening spouse’s employment and domestic violence)

Kayahan v. Kayahan (paying child support directly to an unemancipated child)

  1. v. J.S. (child support guidelines and expenses for a “gifted” child)
  2. v. D.T. (making medical decisions for a child)

Serrano v. Urbano (admissibility of a Custody Neutral Assessment (CNA)

Reitz v. Reitz (communicating with a Guardian Ad Litem (GAL)

Puerta v. Puerta (failure to list asset in a default judgment)

  1. v. A.C. (support for a child in graduate school)
  2. v. P.C. (midweek overnight parenting time during the school year)
  3. v. B.S. (disposal of personal photographs and videos accumulated during the marriage)

Schmidt v. Schmidt (reinstating a previously dismissed divorce complaint)

  1. v. M.W. (restraints on parents attending a youth sporting event)
  2. v. V.S. (evidentiary issues in a domestic violence proceeding)

Swift v. Swift (failure to participate at a scheduled Early Settlement Panel)

Ramroop v. Landsman (filing a sur-reply to a reply certification)

Trenholm v. Trenholm (modifying an existing child support order)


* I wish to thank my associates, Cassie Murphy, Esq. and John P. Paone, III, for their assistance in the preparation of this article.