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2024 was another lean year for reported family law opinions. Two important family law decisions were authored by Judge Hany Mawla, a longtime friend of the family bar. One regards the enforceability of a fully executed Marital Settlement Agreement upon the death of a party, and a second regards the ability to file a Counterclaim one year after commencement of a divorce case. In addition to these two cases, the United States Supreme Court confirmed the right of courts to take away weapons from persons found to have committed domestic violence; and the New Jersey Supreme Court clarified the standard for obtaining a Final Protective Order under the Sexual Assault Survivor Protection Act of 2015. Surprisingly, reported cases involving the basics: alimony, child support, and equitable distribution, were non-existent.
As a result, this year only seven reported cases having a bearing on family law issues made the Top Ten list. Here is hoping that 2025 will be a more prolific year for reported family law decisions.

United States v. Rahimi, 602 U.S. 680 (2024)

Issue: Does federal statute 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms by individuals who are subject to a domestic violence restraining order, violate the Second Amendment of the United States Constitution where the defendant is found to pose a credible threat to the physical safety of others?

Holding: No. When an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be disarmed consistent with the Second Amendment. Furthermore, while there is no prior law based on the regulatory history of this Nation which precisely matches the restriction imposed by 18 U.S.C. § 922(g)(8), the government is able meet their burden that the statute is consistent with the historical tradition of firearm regulation and that its historical precursors are analogous enough for the challenged statute to pass constitutional muster.

Discussion: This case arises as a result of a domestic incident in which the defendant (“Rahimi”) met his girlfriend, C.M., for lunch in a parking lot in December 2019. During the encounter, an argument between the two individuals ensued. As C.M. attempted to depart, Rahimi grabbed her by the wrist, dragged her back to his vehicle, and shoved her in causing her to hit her head against the dashboard. Upon realizing that a bystander had witnessed the altercation, Rahimi proceeded to retrieve a gun from under the passenger seat. Rahimi discharged the firearm as C.M. fled the scene although it was unclear whether Rahimi intended to aim the gun at C.M. or the eyewitness.

In light of the incident which occurred, C.M. went to court to apply for a restraining order. Although Rahimi had an opportunity to rebut C.M.’s testimony, he elected not to do so. On February 5, 2020, a state court in Texas issued a restraining order against Rahimi. The order stated that Rahimi had committed family violence and that this violence was likely to occur again as Rahimi posed a credible threat to the physical safety of C.M.

In May 2020, Rahimi violated the restraining order by approaching C.M.’s house at night. It was found that Rahimi had also began communicating with her through several social media accounts.

Thereafter, in November 2020, Rahimi threatened a different woman with a gun, resulting in a charge for aggravated assault with a deadly weapon. While Rahimi was in custody, Texas police discovered that he was a suspect in at least five additional shootings. Based on police having probable cause that Rahimi was connected to these shootings, they obtained and executed a search warrant for Rahimi’s residence in which they discovered a pistol, rifle, ammunition, and a copy of the restraining order.

Rahimi was indicted on one count of possessing a firearm while subject to a domestic violence restraining order contrary to 18 U.S.C. § 922(g)(8). The statute provides that the following three criteria must be met in order for there to be a viable prosecution: (1) defendant must have received actual notice and opportunity to be heard before the order was entered; (2) the order must prohibit the defendant from either harassing, stalking, or threatening his intimate partner or his or his partner’s child; and (3) the order must either contain a finding that the defendant represents a credible threat to the physical safety of his intimate partner or his or his partner’s child.

Rahimi attempted to dismiss his indictment in arguing that the statute on its face violated the Second Amendment. His motion which raised this Second Amendment challenge was denied in multiple courts including the U.S. District Court. Following the denial of his motion, Rahimi then pleaded guilty. Rahimi subsequently filed an appeal which was unsuccessful and petitioned for rehearing en banc before the 5th Circuit Court of Appeals.

Rahimi’s appeal was ultimately reopened as a result of the U.S. Supreme Court opinion in New York State Rifle & Pistol Association, Inc. v. Bruen, which overturned a law in New York that prevented law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms. Upon review of the appeal de novo, the 5th Circuit determined that Bruen overruled the case precedent regarding firearm regulations and that 18 U.S.C. § 922(g)(8) contravened the Second Amendment.

Following the decision by the 5th Circuit Court of Appeals, the Supreme Court granted writ of certiorari and initially reviewed the leading cases of D.C. v. Heller and New York State Rifle & Pistol Association, Inc. v. Bruen addressing ownership and possession of firearms. The Court observed that under English common law “going armed” laws were instituted to prohibit people from misusing weapons to harm or menace the King’s subjects. By the time of the Nation’s founding, state constitutions and the Second Amendment eliminated governmental authority to disarm political opponents but regulations targeting individuals who physically threatened others persisted.

The Supreme Court cited various examples in history in which laws were enacted by the government to target and curtail the usage of firearms. Most notably, surety laws were promulgated in Massachusetts in the early days of the Nation’s founding authorizing justices of the peace to arrest all individuals who go armed offensively and required offenders to find sureties for his keeping the peace.

When viewing the surety and going armed laws together, the Court explained that common sense suggests that when an individual poses a clear threat of physical violence to another, the threatening individual must be disarmed. While 18 U.S.C. § 922(g)(8) is not identical to its legal precursors involving firearms, the Court made clear that this was not a requirement in order for the statute to be constitutional. The prohibition set forth in the statute as to possession of firearms by those found by a court to present a threat to others squarely aligns with the tradition that the surety and going armed laws represent.

Moreover, the Court declared that the burden which 18 U.S.C. § 922(g)(8) imposes on the right to bear arms also fits within the regulatory tradition of government. First, the statute is analogous to the surety and going armed laws insofar as they each require judicial determinations as to whether a particular defendant likely would threaten or had threatened another with a weapon. Second, comparable to the surety laws, the restriction against Rahimi under the statute is only temporary as it only prohibits firearms possession so long as the defendant is subject to the restraining order.

Additional significance to the Court was that the penalty under the statute also fits within the regulatory tradition. To be clear, the going armed laws provided for imprisonment or in less severe cases a temporary disarmament.

While Rahimi argued that the statute should be invalidated based on its absolute prohibition of individuals with restraining orders possessing guns in the home, the Supreme Court did not agree with Rahimi’s position. The Supreme Court pronounced that its holding in Heller never established a categorical rule that the Constitution prohibits regulations that forbid firearm possession in the home. In fact, the Court added that many such prohibitions, such as those regarding the possession of firearms by felons and the mentally ill, are presumptively lawful.

The Court concluded that it had no trouble finding that 18 U.S.C. § 922(g)(8) withstood Rahimi’s constitutional challenge based on legal and historical precedent which gave context to the government’s legitimate interest in prohibiting individuals with active restraining orders from having access to firearms who are a credible threat to the physical safety of others. The tradition of firearm regulation allows the government to disarm individuals who pose a credible threat to the physical safety of others.

In reversing the judgment of the 5th Circuit Court of Appeals and remanding the matter for further proceedings, the Court identified two distinct errors which were made on appeal. The first error was that there was never a requirement under Bruen that the government provide a “historical twin” rather than a “historical analogue” as to traditional firearm regulations dating back to the founding of the Nation. The second error was when legislation and the Constitution appears to be at variance, the objective is to seek harmony and not manufacture conflict which is where the Circuit Court of Appeals ran into problems by focusing on hypothetical scenarios where 18 U.S.C. § 922(g)(8) might raise constitutional concerns and controversies.

Roik v. Roik, 477 N.J. Super. 556 (App. Div. 2024)

Issue: Does the death of one spouse which is subsequent to the execution of a written Matrimonial Settlement Agreement (“MSA”) by both parties but prior to an uncontested hearing and entry of a Final Judgment of Divorce render the terms of the MSA unenforceable?

Holding: No. Where one party has become deceased pending an uncontested divorce hearing, the Family Part may enforce the MSA as long as it is entered at arm’s length, and it is fair and equitable to effectuate the parties’ mutual intent to divide their assets and liabilities.

Issue: Do the amended statutes, N.J.S.A. 3B:5-3(d), N.J.S.A. 3B:8-1, and N.J.S.A. 2A:34-23(h)(2), which close the proverbial “black hole” in matrimonial actions by permitting trial courts in the Family Part to make an award of equitable distribution where one party has died pending a divorce have retroactive application?

Holding: Yes. The revised statutes enacted by the Legislature have a curative effect since they were designed to close the Carr black hole and should be entitled to pipeline retroactivity to provide trial courts addressing this issue with a means to resolve cases which were not dismissed prior to the effective date of the new statutes.

Discussion: Paul Roik (“Husband”) and Anita Roik (“Wife”) were married for forty-six (46) years at the time that the Husband filed a complaint for divorce in August 2020. Attached to the Husband’s complaint was a certification of insurance coverage confirming that there was a life insurance policy, but the Husband did not own it.

With the assistance of counsel, the parties negotiated an MSA which was signed by the parties in November 2020. The MSA contained a provision which stated that the Agreement became effective upon the last party executing the document. There was also standard language in the Agreement including but not limited to the fairness and equity of the Agreement and the fact that it was entered into by both parties free of force, coercion, or duress.

An uncontested hearing date was scheduled by the court for January 11, 2022. In December 2021, there was an email discussion which occurred between the parties, their eldest son, and their daughter about the cost and expediency as to whether the parties’ divorce should be entered on the papers in lieu of attending and participating in a virtual uncontested hearing by Zoom.

On December 25, 2021, the Husband signed a certification is support of a judgment of divorce on the papers. The Husband subsequently passed away on December 29, 2021 before a judgment of divorce was entered by the court.

Following the Husband’s death, the eldest son, executor of the Husband’s estate, filed an application in which he petitioned the court in the Family Part for the following: substitute the estate as the real party in interest; enforce the MSA; impose a constructive trust; or alternatively intervene in the divorce litigation. The Wife opposed the motion and filed a cross-motion for other relief, including to dismiss the divorce.

In support of the Wife’s cross-motion, she certified that she knew that the Husband was in ill health but denied purposely delaying the divorce until he died. The Wife further certified that she knew that the Husband had a life insurance policy with American General – United States Life Insurance Company, on which the Husband was making payments, which had a death benefit of $750,000.00. She claimed that she learned around 2011 that the Husband transferred ownership of the policy to the eldest son and that the beneficiary designation was changed from the Wife to someone else. The Wife’s certification attached a letter from the insurance carrier enclosing a change of ownership and beneficiary forms and included a handwritten notation stating as follows: “$40,000 prepaid by son[.] $750,000 policy.”

The reply certification by the eldest son conceded that the Wife knew that the Husband no longer owned the life insurance policy because it was disclosed on the Husband’s CIS. It was acknowledged that the policy was disclosed in discovery and the son took over the policy because the Husband could no longer afford the premiums.

Following oral argument, the trial court granted Wife’s cross-motion and concluded that the MSA could not be enforced because there was no way of discerning the parties’ mutual intent and whether they knowingly and voluntarily entered into the Agreement. The judge who rendered the decision cited Administrate Office of the Courts Directive #18-20 which promulgated the form “Certification in Support of Judgment of Divorce” which is required for a divorce on the papers and declared that this procedure does not relieve the court of its obligation to make findings on the record that the parties knowingly and voluntarily entered into the MSA. The judge further explained that the MSA was never made part of a final judgment of divorce and therefore could not be enforceable as a court order.

The estate argued on appeal that the trial judge erred as the existence of a signed MSA demonstrated unusual and exceptional circumstances warranting substitution of the estate as the real party in interest. Furthermore, the estate contended that the trial court should have enforced the MSA to avoid a windfall to the Wife (that windfall being the marital home which under the MSA was divided 50/50 – but without the MSA by operation of law, the Wife would receive 100% as the survivor of the property held as tenants by the entirety).

Following initial briefing and oral argument in the Appellate Division, legislation was introduced proposing an amendment to the intestacy and equitable distribution status to close the black hole in cases where one spouse dies pending a divorce proceeding. The new legislation was signed into law by Governor Murphy on January 8, 2024.

In reviewing the record in the trial court, the Appellate Division noted at the outset that the trial judge relied extensively on Directive #18-20 which establishes the procedure for a divorce on the papers. However, the trial judge overlooked the fact that the Husband had signed and filed a certification in support of the judgment of divorce prior to the time of his death. Notwithstanding the certification, the Appellate Division explained that the MSA clearly expressed the mutual belief of the parties that the Agreement was fair and equitable and reflected their mutual intent to be bound by its terms.

The Appellate Division also found important that the Wife knew about the life insurance policy in which the ownership and beneficiary designations had changed but nonetheless decided to settle the case. Furthermore, the equitable distribution provisions were unremarkable.

The evidence in the case further demonstrated to the Appellate Division that the final judgment of divorce would have been entered but for the scheduling delay which was primarily attributed to the Wife’s preference of wanting a Zoom divorce based on her understanding that it would be more cost efficient. Accordingly, the Appellate Division concluded there was no basis to set aside the MSA and reversed and remanded the matter back to the trial court in order for the estate to substitute as the real party in interest and enter a judgment incorporating the MSA.

The Appellate Division was further tasked with addressing the issue that was part of supplemental briefing as to whether the newly passed and amended statutes, N.J.S.A. 3:B-3(d), N.J.S.A. 3B:8-1, and N.J.S.A. 2A:34-23(h)(2), by the Legislature which eliminated the “black hole” in divorce actions applied retroactively or prospectively. The Appellate Division found that the revised statutes should have retroactive effect to pending cases that were not dismissed prior to the effective date of the new statutes.

In its analysis, the Appellate Division acknowledged that there is presumption against retroactivity. However, there are exceptions where (1) the legislative history makes clear that the Legislature intended that the statutes apply retroactively either expressly or implicitly; (2) where the statute is ameliorative or curative; or (3) when the expectations of the parties may warrant retroactive application.

The Appellate Division added that there is also pipeline retroactivity whereby a rule of law may apply in all future cases, matters which remain pending, and the particular successful litigant in a case already decided. The degree of retroactivity depends on a court’s view as to what is justly commensurate with public policy and the particular situation presented.

The Appellate Division found that based on the legislative history, the revised statutes ostensibly created pipeline retroactivity as they apply to pending complaints which have not been dismissed for failure to state a claim. The revised statutes to close the black hole were clearly intended to be curative which also support their retroactive application to cases which were still pending in the court system. In conclusion, the Appellate Division maintained that applying new laws to cases in the pipeline under these circumstances does not frustrate the administration of justice, but rather advances justice by providing courts with an effective mechanism to resolve cases in accordance with prevailing law.

T.B. v. I.W., 479 N.J. Super. 404 (App. Div. 2024)

Issue: Did the trial court err in drawing an adverse inference against the defendant during a Final Restraining Order (“FRO”) hearing where the defendant refused to testify by invoking his Fifth Amendment right against self-incrimination?

Holding: Yes. Despite the remedial nature of the Prevention Against Domestic Violence Act (“PDVA”) in which a defendant’s testimony is prohibited from being utilized in a criminal proceeding relating to the same act, a defendant’s election not to testify cannot give rise to an adverse inference in an FRO hearing.

Discussion: The plaintiff, T.B., obtained a Temporary Restraining Order (“TRO”) against the defendant, I.W., on June 4, 2023 based on allegations that I.W. sexually assaulted her in his apartment while their son was in a separate room. The TRO was later amended twice by T.B. to include additional details regarding a prior history of domestic violence by I.W. including acts of harassment and lewdness.

The parties appeared for the FRO hearing in which they were both represented by counsel. T.B. testified on her own behalf while I.W. elected not to testify as his counsel advised the trial court that I.W. was invoking his Fifth Amendment right against self-incrimination in which he should not be compelled to testify.

During the FRO hearing, T.B. testified that the parties were in a dating relationship for approximately three years before the relationship ended. She explained that the parties had a child together who was only two years old. T.B. testified that on the day of the incident, I.W. exercised his scheduled parenting time at his apartment pursuant to their agreement.

T.B. further testified that she slept over I.W.’s apartment the night of the of the incident. She awoke to I.W. sitting next to her masturbating. T.B. recounted in her testimony how I.W. forced her to perform oral sex on him, removed her clothing, and sexually penetrated her despite repeated protests and objections by T.B.

Following T.B.’s testimony, the trial court granted the FRO in concluding that I.W. committed the predicate act of sexual assault and that act would cover such acts as harassment and lewdness because it was all part of the predicate act. The trial court relied on I.W.’s decision not to testify and found that it was permitted to draw an adverse inference that the alleged acts were committed by I.W. The trial further noted that substantial abuse occurred and that it rose to the level of sexual assault. The credibility of T.B. was not assessed although it was acknowledged by the trial court that the parties had been engaged in litigation over parenting time for two years and that there were previously dismissed TRO’s and civil restraint agreements between the parties.

I.W. subsequently appealed the FRO based in primary part on trial court’s decision to draw an adverse inference against I.W.’s decision not to testify. He further contended that the trial court failed to make factual and credibility findings in entering the FRO.

The Appellate Division found that the actions on the part of the trial court during the FRO hearing constituted reversible error. At the outset of its decision, the Appellate Division explained that although the trial court found that I.W. committed the predicate act of sexual assault, there was no reference to any specific facts or events in addition to there being a lack of credibility determinations regarding T.B.’s testimony. The trial court also failed to cite the elements of the alleged three predicate acts, the PDVA, or the second prong of Silver v. Silver, requiring the trial court to determine whether an FRO was necessary in order to protect the victim from future risk of harm.

As for the trial court deciding to draw an adverse inference against I.W. during the FRO hearing, the Appellate Division made clear that it was improper for the trial court to draw this inference merely from I.W. invoking his Firth Amendment right not to testify. The Appellate Division observed that there was no reported case law in New Jersey which addressed this issue or any controlling case precedent that was part of the record.

The Appellate Division explained that while a court may generally draw an adverse inference when a party invokes his or her Fifth Amendment right against self-incrimination in civil matters, an FRO hearing is distinguishable from other civil proceedings. To be clear, there are significant adverse consequences of an FRO as it does not expire and its penalties as enumerated by the PDVA can be severe including but not limited to loss of employment, prohibition of ownership, use, and possession of firearms, and change in residence and child custody. The Appellate Division added that the right against self-incrimination guaranteed by the New Jersey Constitution offers a defendant broader protection than its Fifth Amendment federal counterpart.

With regard to the rationale of applying an adverse inference in many civil matters, the Appellate Division elaborated that the concept is derived from notions of fairness in order to level the playing field where evidence has been hidden or destroyed. If a party elects not to testify by invoking the Fifth Amendment, the invocation prevents the opposing party from discovering potentially relevant and probative facts which squarely places that party at a disadvantage. In the context of a FRO, the Appellate Division noted that the same principle does not apply as a plaintiff has the ability to prove by a preponderance of the evidence the two prongs of Silver in order to obtain a FRO without the necessity of the defendant’s testimony.

The Appellate Division also recognized that while the PDVA affords defendants certain protections by preventing their testimony in a FRO hearing from being utilized against them in a similar criminal proceeding, it does not encompass the broader protection afforded by the Fifth Amendment and N.J.R.E. 503. The protection under the PDVA only insulates a defendant from a simultaneous or subsequent criminal proceeding arising out of the same incident as the domestic violence action and does not contemplate or protect against the use of that testimony in unrelated proceedings. The Appellate Division emphasized that nothing in its holding precludes a victim from obtaining a FRO or the trial court from finding that a victim’s testimony is uncontroverted when assessing their credibility in cases where a defendant asserts the Fifth Amendment and fails to testify. Based on these conclusions made by the Appellate Division, the FRO was vacated and the amended TRO was reinstated pending a new FRO hearing.

Sadeeshkumar v. Venugopal, 478 N.J. Super. 25 (App. Div. 2024)

Issue: Did the trial court err in denying the Husband’s motion to amend his Answer so as to include a Counterclaim for Divorce based on the grounds of extreme cruelty and irreconcilable differences where the case was more than one year old?

Holding: Yes. An application to amend a Complaint or Counterclaim for Divorce in the context of a family law matter should be liberally and freely permitted in the interests of justice at any time prior to the Final Judgment.

Discussion: The plaintiff (“Wife”) and defendant (“Husband”) were married for over 30 years in which the Wife filed a Complaint for Divorce in May 2022. As part of her Complaint, the Wife filed for divorce based on irreconcilable differences and sought an award of alimony, equitable distribution, and counsel fees. In October 2022, the Husband filed an Answer along with affirmative defenses. The Answer also referred to a separate litigation in the Law Division regarding a business founded during the parties’ marriage involving the Wife who was a third-party intervenor and another individual, Selvakumar Murugan (“Murugan”).

In May 2023, the Husband filed a Motion to amend his Answer to the Complaint for Divorce so as to include a Counterclaim for Divorce based on grounds of extreme cruelty and irreconcilable differences. In support of his Motion, the Husband claimed that he and his Wife met Murugan in 2000 in which the Wife unilaterally devoted herself to Murugan as a spiritual guru. The Husband further claimed that due to Murugan’s influence, the Wife and Murugan made decisions for their family business which adversely affected the Husband’s personal and financial well-being. He contended that Murugan and the Wife were also involved in an inappropriate relationship which violated all acceptable societal norms and cultural values. As part of the Husband’s Motion, a proposed Answer and Counterclaim for Divorce were annexed to his application.

The Wife’s counsel only filed a letter brief and did not include a Certification from the Wife setting forth the relevant facts based on her personal knowledge. In the letter brief, the Wife’s counsel argued that the Husband forfeited his right to amend his pleadings because he knew about the Wife’s alleged conduct as early as 2013 but decided not to file a Counterclaim.

In his reply certification, the Husband disputed that he knew about the facts involving the Wife and Murugan during the marriage and that his separate travels to India reinforced the need to have a separate and independent cause of action to ensure that the divorce moved forward. The defendant also noted that if the Wife withdrew her Complaint, the Husband would be unable to obtain a divorce and the matter would have to be refiled which would be contrary to the principles of judicial efficiency and economy.

Upon review of the written submissions, the trial judge denied the Husband’s request to amend his pleadings. The trial judge relied in part on the fact that the case had significantly aged being over 427 days old and since the parties pled a cause of action based on irreconcilable differences, amending the pleadings at such a late stage would only engender more acrimony between the parties.

The Husband subsequently filed a Motion for Reconsideration in which he certified that the trial judge incorrectly found that he pled for irreconcilable difference since the only pleading that he filed was an Answer with affirmative defenses. He further clarified that at the time that he filed his Answer, he did not include a Counterclaim because he was not seeking a divorce from the Wife. However, as discovery ensued, it became clear to him that irreconcilable differences existed between the parties.

The Wife’s counsel filed another letter brief asserting that the Husband had not given a reason as to why he waited to amend his pleadings. The brief further claimed that the Husband had not met the criteria for reconsideration and was merely dissatisfied with the trial judge’s first Order.

Notwithstanding the Husband’s arguments, the trial judge denied his Motion for Reconsideration and agreed with the Wife’s position. The Appellate Division thereafter granted the Husband leave to appeal the trial judge’s prior decisions.

In addressing the issue on appeal, the Appellate Division initially reviewed R. 4:9-1 which provides for a liberal standard in which litigants may amend a pleading
“at any time before a responsive pleading is served, or if the pleading is one to which no response pleading is to be served, and the action has not been placed upon the trial calendar, at any time within [ninety] days after it is served.” The Appellate Division noted that despite the liberal standard of the court rule, judges may deny leave to amend when the granting of relief may be futile such as when the new claim lacks merit or would be dismissed for failure to state a claim upon which relief would be granted.

The Appellate Division made clear that the trial judge was mistaken in his belief that the Husband pled a cause of action for irreconcilable differences when he did not file a Counterclaim for Divorce. Furthermore, the trial judge misapplied the law when he considered the merits of the Husband’s allegations in the proposed amended pleadings and then denied the Husband’s application in deeming the allegations to lack substantive basis. Rather, the Appellate Division specified that the Husband pled sufficient grounds for divorce based on irreconcilable differences and extreme cruelty which outlined the alleged conduct by the Wife which endangered the Husband’s health and caused the breakdown of the marriage.

With regard to the argument asserted by the Wife that the Husband was precluded by R. 5:4-2(e) from amending his Answer since he alleged acts of extreme cruelty and irreconcilable difference dating back to 2013 which were not included in a counterclaim when he filed his first responsive pleading, the Appellate Division found that the Wife’s reliance on this court rule was misplaced and incorrect. The Appellate Division clarified that R. 5:4-2(e) governs the process of amending a Counterclaim, not amending an Answer to include a counterclaim which was the objective of the Husband. Moreover, while R. 5:4-2(e) does not alter the interests of justice standard articulated in R. 4:9-1 which governs all amended pleadings, the Appellate Division acknowledged that R. 5:4-2(e) impedes a divorce litigant’s access to justice insofar as they would be barred from pursuing causes of action revealed to them during the case which would create rather than remove barriers for resolution.

The Appellate Division added that in Family Party matters an amendment to a responsive pleading to include a counterclaim is governed by R. 5:4-2(d) which, similar to R. 4:9-1, requires leave of court but in recognition of the Family Part’s inherent equitable authority may be granted at any time prior to final judgment. The rationale underpinning the ability for a party to seek leave at any time originates from the procedure often instituted in divorce cases where a party who may have initially pled a cause of action other than irreconcilable differences can later amend their pleadings to include irreconcilable differences as an amicable way of ending the divorce.

In finding that there was ample support in the record to amend Husband’s pleadings in the interests of justice so as to include a Counterclaim, the Appellate Division reversed the prior ruling of the trial court. Significantly, the Appellate Division acknowledged that its decision effectively harmonized R. 5:4-2(d) and (e) along with R. 4:9-1 insofar as there was previously ambiguity and uncertainty as to how a party should proceed when amending a pleading in the Family Part.

C.R. v. M.T., 257 N.J. 126 (2024)

Issue: Was the plaintiff’s testimony that she had been traumatized by the defendant as a result of being sexually assaulted by the defendant more than three years earlier sufficient in order to satisfy prong two of the Sexual Assault Survivor Protection Act (“SASPA”) and warrant the entry of a Final Protective Order?

Holding: Yes. The second factor under SASPA only requires that the victim demonstrate that there be a possibility of future risk to their safety and well-being. This is a more permissive and lenient standard that was intended by the Legislature than obtaining a Final Restraining Order in which the victim seeking relief under the Prevention Against Domestic Violence Act must demonstrate that a restraining order is necessary in order to prevent future harm or abuse. Accordingly, the plaintiff’s subjective fear of the defendant, notwithstanding the passage of time, was enough to qualify as a possibility of a future risk of harm under SASPA.

Discussion: The plaintiff (“Clara”) initially obtained a Final Protective Order (“FPO”) against the defendant (“Martin”) under SASPA after testifying that she had been sexually assaulted by Martin in June 2018. As part of its initial ruling, the trial court found that Clara had been subjected to nonconsensual contact within the purview of SASPA as her extreme voluntary intoxication made it impossible for her to consent to sexual contact. Although this ruling was reversed by the Appellate Division in directing the trial court to apply the prostration of faculties test to determine whether Clara was capable of consenting to the sexual contact, the New Jersey Supreme Court overruled the decision by the Appellate Division. Specifically, the Supreme Court remanded the case back to the trial court and instructed that the affirmative consent standard be applied in order to determine whether sexual activity by Clara was consensual or non-consensual.

On remand before the trial court, Clara testified that she had been intensely traumatized by the sexual assault in which she had seen multiple therapists, suffered intimacy issues, and lost her feeling of self-worth. Martin waived his right to testify and relied on his testimony from the initial hearing. At the conclusion of the remand hearing, the trial judge found Clara’s testimony to be credible and believable while noting that Martin’s prior testimony lacked credibility and was not truthful. In applying the two-factor test under SAPSA, the trial judge held that the consent to sexual contact was not affirmatively and freely given by Clara based on N.J.S.A. 2C:14-16(a)(1). Additionally, the trial judge noted that the second prong of the analysis, N.J.S.A. 2C:14-16(a)(2) only required a possibility, rather than a probability of future harm to the victim which was established by Clara’s testimony regardless of the fact that Martin had not contacted Clara in the three years since the incident occurred.

Martin subsequently filed an appeal in which he asserted that the sexual contact was consensual and that Clara’s fear of him was irrational as he posed no threat to her. The Appellate Division reviewed the language as set forth in the SASPA statute and in giving the key terms in the statute their plain and ordinary meaning, the Appellate Division concurred with the trial court that Clara had demonstrated a possibility of harm.

Following the unreported opinion by the Appellate Division, Martin’s petition for certification was granted by the Supreme Court in which its review was limited to the statutory construction and interpretation of N.J.S.A. 2C:14-16(a)(2). Martin contended that the bar to satisfy the second prong of the SASPA analysis was too low because there is always a possibility of future risk to the victim unless either one or both parties are deceased. This would effectively lead to a result in which prong two of SASPA is established automatically in every case.

In response to Martin’s argument, Clara claimed that the lower courts correctly construed the plain and unambiguous language of the statute. Moreover, Clara posited that Martin was asking the Court to apply a much more stringent test analogous to the requirements under the Prevention of Domestic Violence Act (“PDVA”) in order to apply for a restraining order. Clara proffered that any correlation in this regard would be improper since the Legislature had the opportunity to incorporate the more rigorous requirements of PDVA when SASPA was enacted in 2015 but decided not to go that route.

As part of the review conducted by the Supreme Court, leave was granted to Legal Services of New Jersey and Partners for Women and Justice to participate as amici curiae. Amicus Partners for Women and Justice made clear in its submission to the Supreme Court that although there are some cases where a liberal standard will make the issuance of a FPO perfunctory under SASPA, this is exactly what the Legislature intended for victims of sexual assault. They further recognized that the consequences of a FPO under SASPA are far less onerous or significant than a FRO under the PDVA.

In addressing the arguments of the parties and the points raised by the amicus participants, the Supreme Court acknowledged the more lenient and permissive standard in order to obtain a FPO under SASPA. The majority opinion for the Supreme Court noted that a FPO does not require a showing that it is necessary to protect the safety and well-being of the alleged victim. Instead, it only requires the possibility of future risk to the safety or well-being of the alleged victim. SASPA fills the void by providing orders of protection only in cases where parties are not eligible for a restraining order as a victim of domestic violence under the PDVA.

The Supreme Court explained that while the procedures for seeking a FRO under the PDVA and a SASPA FPO are identical, SASPA only lists two factors that trial courts are to consider as compared to the PDVA which lists six factors. It took note that the second factor of the PDVA which addresses the existence of immediate danger to persons or property, could have been inserted by the Legislature into the SASPA statute but opted against including this language. The Supreme Court found this to be instructive in determining that the Legislature intended for SASPA’s second factor be less restrictive.

Moreover, the Supreme Court observed that the penalties of a FRO under the PDVA are far more severe than a FPO under SASPA. A FRO may include nineteen (19) different forms of relief including but not limited to granting exclusive possession to a plaintiff of a shared residence, directing a defendant to pay money damages to a plaintiff, permanent forfeiture of firearms, and an award of attorney’s fees. This is in contrast to the FPO which only prohibits the respondent from having any contact with the victim and prohibits the respondent from committing any future act of nonconsensual sexual contact, sexual penetration, or lewdness against the victim.

The Supreme Court was also guided by the plain language of the statutory provisions of SASPA in finding that the Legislature intended a lenient and easy-to-satisfy standard to obtain a FPO in contrast to a PDVA FRO. Specifically, the Supreme Court noted that the definition of the word “possibility” in N.J.S.A. 2C:14-16(a)(2) does not require that something will happen but that something may happen or might be the case. With regard to the definition of the word “risk,” the Supreme Court clarified that this meant a situation involving exposure to danger or the possibility that something unpleasant or unwelcome might happen. Thus, the plain language of factor two in SASPA requires the Court to consider whether a victim may be exposed to physical risk or danger or an emotionally unpleasant outcome that could lead to them feeling uncomfortable, unhealthy, or unhappy.

Of equal importance to the Supreme Court was that the Legislature chose to use language that there was “possibility of future risk” to a victim for a SASPA FRO rather than there be a “necessity to protect” the victim which is the language set forth under N.J.S.A. 2C:14-15(a) for addressing SASPA TRO’s. Based on the clear and unambiguous language of SASPA, the Supreme Court added that Clara’s extensive testimony detailing her physical and mental health issues, including but not limited to lack of sleep, intimacy issues, loss of self-worth, and the destructive impact that the sexual assault had on her satisfied prong two of SASPA and there was sufficient evidence for the trial court to enter a FPO against Martin.

As for Martin’s argument that an irrational fear by Clara did not warrant a restraining order where the parties had not been in contact for over three (3) years, the Supreme Court pronounced that nothing in the plain language of N.J.S.A. 2C:14-16(a)(2) requires that there be an objectively reasonable fear or that it be consistent with a reasonable person standard. In short, credible testimony about emotional or psychological trauma, even if it is a subjective fear on the part of the victim, is sufficient to satisfy SASPA’s second factor.

Alternative Global One, LLC, et al. v. Feingold, et al., ____ N.J. Super. _____ (App Div. 2024)

Issue: Did the trial court abuse its discretion or misapply the law in denying a non-party’s motion to quash a subpoena for his deposition and for a protective order?

Holding: No. The trial court appropriately considered the factors regarding non-party litigation established in Berrie v. Berrie, 188 N.J. Super. 274, 284 (Ch. Div. 1983), which factors “clearly demonstrated that the deposition should occur and is relevant to the matter at hand.”

Discussion: In the underlying Florida litigation, Alternative Global One, LLC v. Feingold, No. 2023- 000688-CA-01 (Fla. Cir. Ct. filed Jan. 17, 2023), plaintiffs Alternative Global One, LLC and related entities allege that defendants, David Feingold and Michael Dazzo “are attempting to convert [certain investments] from [plaintiffs] to their own benefit” and that defendants have “refus[ed] to provide [plaintiffs] with their own books and records.” Given his prior communications and involvement with plaintiffs’ investors, plaintiffs served a subpoena ad testificandum on Daniel W. Amaniera, a non-party, to depose him in New Jersey pursuant to Rule 4:11-4(b), seeking only his deposition.

Mr. Amaniera moved to quash the subpoena and for a protective order. Pursuant to his Motion to Quash, Mr. Amaniera argued that he has no direct relationship with any of the plaintiff entities. In addition, he argued that Richard Cardinale, the sole member of the plaintiff entities, served the subpoena to “bully and harass him” because he used to work with Mr. Cardinale and now he works for a competitor business, Broadstreet Inc. In that vein, Mr. Amaniera claims that Mr. Cardinale was attempting to obtain confidential business information from him as it relates to Broadstreet, Inc. In furtherance of this argument, Mr. Amaniera noted that the subpoena did not enumerate the type of questions to be asked at the deposition.

In further support of his Motion to Quash, Mr. Amaniera attached his attorney’s Certifications explaining that Mr. Amaniera has no involvement in the parties’ litigation, a battle between managing members of the entities and the fiduciary duties owed between them. Attached to his attorney’s Certifications was a nine-page affidavit from Mr. Amaniera, which was previously submitted in a prior litigation, describing his prior dealings with Mr. Cardinale. Specifically, the affidavit discussed the “training [Amaniera] had received from [Cardinale], including training on what to advise investors; what Cardinale had told him about a new investment firm he was starting; the work he had performed with Cardinale and the new firm; his non-voting ownership of 1.5% of Alternative Global Management, LLC, which ultimately owned the plaintiff entities; how Cardinale operated his business; representations Cardinale had made about corporate performance; the deals in which his clients had invested based on Cardinale’s representations; and investor meetings [Amaniera] had attended.”

In opposition to the Motion to Quash, plaintiffs submitted Cardinale’s certification and the certification of one of their attorneys describing Mr. Amaniera’s involvement with related investors. In that vein, the plaintiffs attached affidavits from investors testifying about their dealings with and knowledge about Mr. Amaniera, defendants, plaintiffs, and Cardinale. Likewise, they attached litigation materials, including a joint case management report submitted by the parties to the Florida court, in which the parties jointly identified Mr. Amaniera as a fact witness.

On March 7, 2024, the trial court entered an order denying the Motion to Quash and, a week later, filed an Amended Order sua sponte with an attached statement of reasons. Noting the “extremely broad” scope of pretrial discovery, the trial court held the factors outlined in Berrie, supra, “clearly show[ed] that the deposition should occur and is relevant to the matter at hand.” In addition, the trial court noted that Mr. Amaniera did not provide sufficient evidence to establish that the purpose of the deposition was to harass him or that privileged information was sought as it related to Broadstreet, Inc.

An appeal followed. Pursuant to Mr. Amaniera’s appeal, he claimed that the trial court “overlooked the harassing purpose” behind the subpoena. In addition, Mr. Amaniera argued that the information sought was “duplicative” and “irrelevant.”

In reviewing the record made by the trial court, the Appellate Division affirmed the trial court’s determination. At the outset of the opinion, the Appellate Division noted that New Jersey courts construe discovery rules “liberally in favor of broad pretrial discovery.” Lipsky v. N.J. Ass’n of Health Plans, Inc., 474 N.J. Super. 447, 463 (App. Div. 2023) (quoting Payton v. N.J. Tpk. Auth., 148 N.J. 524, 535 (1997)). Notwithstanding the liberality of the discovery rules, the Appellate Division discussed that a party’s discovery rights “are not unlimited.” In that vein, the Appellate Division explained, “justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Trenton Renewable Power, LLC v. Denali Water Sols., LLC, 470 N.J. Super. 218, 227 (App. Div. 2022).

When facing a discovery dispute involving a non-party, the Appellate Division explained that the trial court must consider 1) the “necessity a party may be under” in seeking the discovery, or the importance of the information sought in relation to the main case; as against (2) the relative simplicity in which the information may be supplied by defendant, and the availability of less burdensome means to obtain the same information. Id. at 229. In that vein, the Appellate Division noted that whether the burdens of discovery outweigh the benefits “deserves close scrutiny with respect to the interests of a nonparty”; however, “a nonparty deponent may not assert lack of relevancy or materiality since he has no real interest in the outcome of the pending litigation.” Berrie, 188 N.J. Super. at 279-83.

In this case, the Appellate Division explained that Mr. Amaniera’s argument regarding “lack of relevancy” necessarily fails due to the holding in Berrie. Even if “lack of relevancy” were a viable argument, the Appellate Division discussed that Mr. Amaniera, by his own words in a prior Affidavit, was involved with the plaintiffs’ investors, which, in part, are the subject of the dispute between the parties. Indeed his connection to the investors caused the parties to jointly name him as a fact witness in the underlying Florida litigation.

With regard to Mr. Amaniera’s argument that the subpoena was “harassing” because it did not “identify areas of questioning,” the Appellate Division explained that Rule 4:11-4(b) does not require the revelation of same. Likewise, with regard to Mr. Amaniera’s claim that his deposition was intended for purposes of obtaining confidential information regarding Broadstreet Inc., the Appellate Division explained that, that argument is equally speculative and unsupported, and could be easily rectified by the entry of an agreed-upon standard confidentiality order. Finally, regarding Mr. Amaniera’s claim that the information sought was “duplicative,” the Appellate Division explained that he did not provide any evidence which would demonstrate that the defendants’ depositions would reveal the same information requested of him by the plaintiffs. For these reasons, the denial of Mr. Amaniera’s Motion to Quash was affirmed.

State of New Jersey v. M.F.L., 478 N.J. Super. 614 (App. Div. 2024)

Issue: Did the trial court err in utilizing and applying the Carfagno analysis when considering the defendant’s application to modify a Sex Offender Restraining Order (“SORO”) issued pursuant to Nicole’s Law?

Holding: No. It was appropriate for the trial court to apply the Carfagno analysis when adjudicating the defendant’s application to modify the SORO. A SORO is intended to parallel a domestic violence restraining order under the Prevention Against Domestic Violence Act (“PDVA”) if a defendant has been charged with or convicted of certain sex offenses with the exception being that there need not be a domestic relationship between a victim and the defendant in order for a SORO to be entered.

Discussion: The defendant (hereinafter “M.F.L.”) was sentenced to a seven-year term of imprisonment following his guilty plea of two counts of second-degree sexual assault. The terms of his incarceration were subject to the No Early Release Act requiring M.F.L. to serve at least 85 percent of his total sentence. Among the victims were M.F.L.’s two step-daughters who had been residing with M.F.L. and his two biological children.

At the sentencing, the trial judge issued a SORO which provided in relevant part that M.F.L. was permanently banned from residences, schools, or places of employment of the victims as well as those of his ex-wife and biological children. M.F.L. was further prohibited from having any form of contact with the victims or any other person identified in the trial judge’s sentencing order.

On August 18, 2021, M.F.L. while still incarcerated filed a motion to modify the Judgment of Conviction (“JOC”) and SORO to allow him to have contact and visitation with his two minor biological children supervised. M.F.L. argued in support of his motion that there were changed circumstances warranting relief because the victims were now adults and no longer resided with his two biological children. M.F.L. also contended that being convicted of a sex offense under Nicole’s law, N.J.S.A. 2C:14-2 and 2C:44-8, did not trigger a forfeiture of his parental rights.

In opposing M.F.L.’s application for modification, the State claimed that the fact that the victims were now adults and no longer resided with the stepchildren did not automatically render any of the active orders of protection inapplicable or invalid. The State asserted that the harm caused by M.F.L. along with the trauma endured by the family was compelling basis to deny M.F.L.’s application. Additionally, the prosecution through the Witness Advocacy Program, expressed concern for the minor children’s safety in light of the criminal conduct and victimization of the juvenile step-children although no certifications of the victims were presented to the trial court.

On March 23, 2022, the motion judge issued an order and written decision denying M.F.L.’s application. Based on the similarities between a SORO and a restraining order under the PDVA, the motion judge applied the factors enumerated in Carfagno in deciding whether to vacate or modify the SORO. This required the motion judge to evaluate the following criteria below:

  1. Whether the victim consented to lift the restraining order;
  2. Whether the victim fears the defendant;
  3. The nature of the relationship between the parties today;
  4. The number of times that the defendant has been convicted of contempt for violating the restraining order;
  5. Whether the defendant has a continuing involvement with drug or alcohol abuse;
  6. Whether the defendant has been involved in other violent acts with other persons;
  7. Whether the defendant has engaged in counseling;
  8. The age and health of the defendant;
  9. Whether the victim is acting in good faith when opposing the defendant’s request;
  10. Whether another jurisdiction has entered a restraining order protecting the victim from the defendant; and
  11. Any other factors deemed relevant by the court.

In denying M.F.L.’s application to modify the SORO under Carfagno, the motion judge placed significant weight on factor one in finding that the biological children did not consent to lifting the SORO. There were also no certifications or testimony presented on behalf the biological children or any other witnesses in order to properly address this factor. The motion judge also found that there was insufficient evidence and information to evaluate other Carfagno factors including but not limited to M.F.L.’s current substance abuse usage (factor five) and the extent of his counseling while incarcerated (factor seven). The motion judge also noted in reviewing factor eight as to M.F.L.’s health concerns that there was no indication that M.F.L. was so infirm that he could no longer pose a threat to his victims.

Following the denial to modify the JOC and SORO, M.F.L. appealed the decision in which he claimed that there were a multitude of errors by the motion judge in evaluating the merits of his application under Carfagno. In reviewing M.F.L.’s appeal, the Appellate Division initially addressed the validity of applying the Carfagno analysis, which is routinely utilized in cases where there are domestic violence restraining orders issues under the PDVA, in a case where a SORO was entered as part of a criminal conviction.

The Appellate Division concurred with the motion judge that the overarching purpose of Nicole’s Law which was enacted in 2007 was to protect the victim from unwanted contact or harassment. In essence, this is similar to the PDVA which is designed to assure domestic violence victims maximum protection that the law can provide. The Appellate Division found that there was a clear parallel between SOROs issued pursuant to Nicole’s Law and domestic violence restraining orders issued pursuant to the PDVA which warranted the motion judge applying the Carfagno standard in applying the facts as it pertained to M.F.L.’s application for modification of the SORO.

As for M.F.L.’s remaining arguments that the motion judge failed to consider evidence which would have supported the granting of his application, the Appellate Division agreed with the motion judge that there was not enough information to adequately assess the defendant’s application. The Appellate Division explained that upon M.F.L.’s release from prison, he may opt to renew his motion to modify the JOC and SORO based on changed circumstances in which M.F.L. and the State must provide the trial court with relevant information to determine whether a ruling can be made based on the submission or if any evidentiary hearing will be required. Notwithstanding, the Appellate Division affirmed the decision of the trial court in concluding that the motion judge properly applied the Carfagno standard in which M.F.L. failed to meet his prima facie burden because he did not provide sufficient information to analyze the factors.


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