2025 was another lean year for reported family law opinions. As a result, in 2025 (as in 2024), only seven reported cases having a bearing on family law issues made the “Top Ten” list. This year’s lineup includes four decisions from the New Jersey Supreme Court. One regards the permissibility under the Rules of Professional Conduct for an attorney to purchase a competing attorney’s name as a keyword from Internet search engine providers such as Google, Yahoo, or Bing. Another addresses whether a defendant in a Prevention of Domestic Violence Act case may invoke the privilege against self-incrimination at final hearing. The final two Supreme Court cases address whether the pay-on-death beneficiary designation in a United States Savings Bond to a former spouse is superseded by the parties’ divorce, and the last addresses the scope of court review of an arbitrator’s award. These four, coupled with three cases from the Appellate Division, make up this year’s top cases.
The continuing lack of reported cases should be of concern to all practitioners. If the case law is not there to advance and shape the law, we will continue to see attempts by the legislature to weigh in on family law matters. Experience tells us that the difference between the courts and the legislature moving the law is like the difference between a surgical pen and a butcher’s knife. Beware!
In re Opinion No. 735 of the Supreme Court Advisory Committee on Professional Ethics, 260 N.J. 482 (2025)
Issue: Is it a violation of the Rule of Professional Ethics (“RPC”) for an attorney or law firm to purchase a competing attorney’s or law firm’s name as a keyword from an internet search engine (i.e. Google, Yahoo, Bing, etc.) by engaging in a type of practice known as competitive keyword advertising?
Holding: No. The practice of purchasing a practitioner’s name as a keyword does not run afoul of the RPC’s. Notwithstanding, attorneys who utilize this marketing strategy to promote their legal services must include a clear and conspicuous disclaimer on the home page of their website when a user clicks on such a paid advertisement.
Discussion: This matter came before the New Jersey Supreme Court as a result of two inquiries relating to attorney online advertising that was brought to the attention of the Advisory Committee on Professional Ethics (“ACPE”). The first inquiry entails whether competitive keyword advertising that utilizes a competing attorney’s or law firm’s name violates the RPC’s. The other inquiry, which is not the subject of the instant appeal, addresses the propriety of inserting a hyperlink on the competitor’s name which redirects the online user to the purchasing attorney’s webpage.
In conducting extensive research on the issue in other jurisdictions, the ACPE found no violation of RPC 8.4(c) which prohibits conduct which is prejudicial to the administration of justice. The committee explained that purchasing a competitor’s name as a keyword does not meet the standard of the aforesaid rule which applies only to particularly egregious conduct or conduct that flagrantly violates accepted professional norms.
On May 5, 2020, the New Jersey Supreme Court granted petitions from the New Jersey State Bar Association and the Bergen County Bar Association to address the legality of competitive keyword advertising. Following oral argument in November 2020, the Supreme Court remanded the matter and appointed Assignment Judge Jeffrey R. Jablonski as Special Adjudicator. Assignment Judge Jablonski was tasked with conducting a factual analysis regarding the purchasing and payment structure for keyword search terms, the manner in which interest search engines differentiate between paid keyword advertisement and organic search results, the placement of search results for paid keyword advertisements, and the lists generated from paid keyword search results.
During the remand proceedings, testimony was given by three experts in the areas of digital marketing, e-commerce, search engine analytics, and pay-per-click advertising. They further testified regarding their examination of any existing empirical data concerning whether advertising search results are deceptive to the average user and whether users are able to distinguish between paid and organic results.
As part of the remand, the Special Adjudicator also sought input from members of bar associations whose names or firms had been purchased as keywords by competitors. Six attorneys and one law firm submitted certifications setting forth how they discovered use of their name and any resulting harm that they experienced. Three of the certifications were unable to identify the extent of any damages which could not be confirmed based on the advertising strategy.
The Special Adjudicator submitted his report in June 2024. In his report, the Special Adjudicator noted that ads routinely appear above organic results and while marked with identifiers such as “Ad,” “Sponsored,” or “Promoted,” their visibility and user recognition vary. The report stated that keyword ownership is not exclusive and that keyword marketing campaigns offer significant benefits to organizations because they allow advertisers to target specific keywords, devices, and locations which can be modified in an accelerated manner.
The Special Adjudicator’s report failed to identify any recent research or data which would establish that most users have a difficult time distinguishing between organic and paid advertising search results. The report acknowledged based on the testimony of the experts during the remand proceedings that advertising results do not necessarily have an advantage over organic results because properly optimized websites that follow search engine guidelines lead to more effective organic listings, which are often considered to be more reliable and trustworthy than the paid keyword.
In reviewing and understanding the methodology behind the search results, the Special Adjudicator explained in his report that factors such as the bid amount, ad quality score, and ad extensions improving the visibility of an ad, keyword relevance, targeted setting, and advertisement schedules all impact whether an advertisement will appear in response to a user’s specific paid keyword. Despite this observation, the Special Adjudicator made clear that there is no guarantee that a paid advertisement will appear when a particular keyword is searched as more than one business may purchase identical keywords. The Special Adjudicator further emphasized in his report that search engines have specific language which restrict certain advertising content that do not comply with the content-based guidelines established by the internet search engine companies.
As a result of his detailed findings, the Special Adjudicator concluded that the current RPC’s were sufficient to combat any allegations of dishonesty, fraud, or misrepresentation in the field of competitive keyword searches for attorneys and law firms’ names. The Special Adjudicator thereby recommended no changes to the RPC’s. Following this recommendation, the Supreme Court requested supplemental briefings by the parties.
The NJSBA as petitioner in this action urged the Supreme Court to adopt the position that keyword advertising be deemed inherently misleading and in violation of RPC 8.4(c). In support of its argument, the NJSBA pointed to user confusion based on the difficulty in contrasting organic and paid advertising search as the differences are extremely nuanced. The NJSBA further claimed that paid keyword advertising is exploitative of the more prominent and established attorney as it attempts to put the purchasing law firm in front of their competitor’s potential clients which is at best misleading and at worst dishonest and deceitful.
Respondent ACPE argued that the practice of purchasing a competitor’s or law firm’s name in keyword advertising is not inherent dishonest or deceptive. The ACPE contended that so long as the attorney’s advertisement is not passing off another attorney’s or law firm’s credentials for their own, then the advertising attorney has not committed misrepresentation. The ACPE also noted that RPC 8.4(d) is intended to address matters of particularly egregious conduct which flagrantly violates accepted professional norms.
In addressing the competing arguments of the parties, the Supreme Court recognized at the outset of its decision that the dispute at hand was not the content of the advertisement, but rather the placement of it. The initial inquiry did not raise issues with the language or phrasing of the purchasing attorney’s advertisement but was specifically confined to the purchase of an attorney’s name as a competitive keyword. In fact, the Supreme Court noted that the purchase of a keyword does not constitute a communication subject to RPC 7.1 or 7.2 which pertain to attorney advertising. Rather, it is a form of proximity marketing where businesses purposely position themselves near a market leader to attract overflow customers.
The Supreme Court concurred with the ACPE that paid keyword search advertising does not violate the RPC’s, in particular RPC 8.4(c) declaring it to be unethical for attorneys to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. In review of the record, the Supreme Court was unconvinced that there was any evidence of such intent. The submissions which were made to the Special Adjudicator made speculative claims about whether attorneys engaged in deliberate deception. None of the attestations or certifications which were submitted demonstrated that the advertising attorneys intentionally sought to mislead prospective clients. Regardless, the Supreme Court added that the limited sample made it difficult to determine whether practice of purchasing competitor’s names as keywords is widespread or scarce.
The Supreme Court was further troubled by the fact that absent a purchasing attorney’s admission or a detailed marketing plan, there would be no proof of misconduct in which it would be nearly impossible for the accused attorney to refute unconfirmed allegations of fraud or misrepresentation at a grievance hearing. To add another layer of complexity, the results generated from a given search engine may vary since it relies on a user’s history and preferences as well as their geographic location when producing search results.
Thus, in devising a remedy to enable attorneys to advertise utilizing the most sophisticated technology while also protecting the interest of the public, the integrity of the legal professions, and the administration of justice, the Supreme Court declared that a precautionary disclaimer must be included by the advertising attorney on any landing page to which the paid ad directs a consumer in a manner. This disclaimer is to be expressly stated as follows:
“You arrived at this page via a paid advertisement on [insert name of search engine provider] through paid keyword search results. This website and legal business it describes are affiliated only with [inset name of purchasing attorney] and the other attorneys referenced within this website.”
The Supreme Court made clear that the driving force behind the disclaimer language is to make the arena of paid legal advertising both transparent and ethical. The language will permit any consumer, as well as the competitor attorney and firm whose name is being used, to understand how this sponsored add appeared in a search results page.
Observation:
The Ruling by the Supreme Court is disappointing. In my opinion, the dissent by Justice Fasciale gets it right… “that this method of deceptive advertising – to secretly appropriate for oneself the earned good will and reputation of another lawyer or firm solely for personal financial gain – violates RPC 8.4(c)’s prohibition against engaging in conduct involving dishonestly, fraud, deceit, or misrepresentation.” I can understand permitting the purchase of keywords such as divorce, alimony, child support, etc. But lawyers or law firm names are propriety and allowing advertisers to purchase those names will always seem wrong to me.
The following is an article that I wrote objecting to the practice known as competitive word advertising:
Stop the Broadside Attack on the Supreme Court’s Certification Program
Years ago, our Supreme Court determined that it is in the interest of the public to have attorneys in various legal disciplines certified. According to the Court, the certification program is an effort both to protect consumers from false advertising and to raise the level of competence of attorneys in our State. Only after undergoing a vigorous vetting process that includes a clean ethics record, judicial and peer review, requisite years and experience in the field of practice, the acquisition of continuing legal education credits over and above those required to practice law, and after passage of a written exam are attorneys certified in New Jersey. Over time, certification has evolved into a kind of gold standard and a resource the public can rely upon in a world where social media and the internet can transmit all types of misinformation and spurious claims regarding attorney qualifications.
But now, an internet advertising practice threatens to undermine the certification program and, in the process, confuse the public. Attorneys who are not certified can purchase from Google the names of certified attorneys as search engine terms. This results in members of the public attempting to search for Attorney X who they have learned is certified and of stellar reputation, and instead finding Attorney Y in their search results. It matters not that Attorney Y is not certified, because Attorney Y paid money to purchase the name of Attorney X as an internet search term. Thus, Attorney Y will appear in search results of a potential client looking for Attorney X.
I have little doubt that if certified attorneys were selling their names to non-certified attorneys to divert internet traffic, the Court would easily recognize such a practice to be deceitful and prejudicial to the administration of justice. Why then should it be acceptable for non-certified practitioners to purchase a certified attorney’s name from Google? One would think it self-evident that the purchase of another attorney’s name can only serve to achieve a result which is deceitful, improper, and unethical. The State Bar of North Carolina has already banned this practice as dishonest conduct. Incredibly, however, a ruling by our own Advisory Committee on Professional Ethics, Opinion 735, would permit such unscrupulous behavior for attorneys in New Jersey.
To its credit, the Court recently appointed The Honorable Jeffrey R. Jablonski as a Special Master to review this matter. I would respectfully submit that the Special Master should be tasked to answer the following question: “Why would someone purchase the name of a fellow practitioner in the first place?” The obvious answer to this question leads to the conclusion that if the polestar of our legal system is to protect the public, there can be no justification for such conduct. Attorneys have always been held to a higher standard than that which is condoned in the marketplace. It must be made clear that the tenents of professionalism prohibit attorneys from engaging in this type of manipulation of internet search.
Finally, to protect the certification program, the Court must not allow the name and reputation of certified attorneys to be used as fodder for an internet advertisement scheme designed to deceive potential clients. We know that practitioners cannot falsely claim to be certified when they are not…neither should they be able to purchase from Google the name of a certified attorney to garner the attention of the unsuspecting public.
M.A. v. J.H.M., 260 N.J. 522 (2025)
Issue: Is a defendant entitled to blanket immunity under the Prevention Against Domestic Violence Act (“PDVA”) when invoking the Fifth Amendment right against self-incrimination privilege during a Final Restraining Order (“FRO”) hearing?
Holding: No. Although a defendant is not afforded blanket immunity under the Fifth Amendment during a FRO hearing and the PDVA immunity provisions contained in N.J.S.A. 2C:25-29(a) do not safeguard a defendant’s rights under the Fifth Amendment, a defendant may invoke the right against self-incrimination as to specific questions during the FRO hearing which raise reasonable risks of self-incrimination. Under those circumstances, a court is prohibited from drawing any adverse inference from the exercise of their Fifth Amendment right.
Discussion: M.A. (“plaintiff”) and J.H.M. (“defendant”) were married and in 2019 and had one child born of the marriage. Plaintiff and the children moved out of the marital home in January 2023 and divorce proceedings subsequently commenced in March 2023. In April 2023, the police arrested J.H.M. in Passaic County and charged him with a weapons offense following an incident in which he used a firearm to threaten the divorce process server.
On July 6, 2023, plaintiff filed a domestic violence complaint and obtained a Temporary Restraining Order (“TRO”) against defendant alleging the predicate offenses of stalking and harassment. In support of the TRO as to stalking, plaintiff asserted that defendant drove past her parents’ home at an excessive speed and nearly collided with a vehicle that was operated by plaintiff’s brother. As for the harassment allegations, plaintiff claimed that defendant called her at work the following day pretending to be someone else. Although the caller ID indicated that it was the number for defendant’s father, no one responded when plaintiff answered the phone although she recognized a voice in the background to be defendant’s mother in which she then heard defendant grunt and hang up.
At the FRO hearing, plaintiff sought to introduce a video recording of defendant’s altercation with the process servicer which the trial court determined to be inadmissible. However, the trial court permitted plaintiff to testify regarding how the incident impacted her state of mind and the reasonableness of her fear of defendant.
As part of her case-in-chief, plaintiff called defendant as a witness. Defendant’s counsel objected based on the privilege against self-incrimination contending that defendant had the right to decline providing any testimony under the Fifth Amendment privilege. Over the objections raised by defendant’s counsel, the trial court ordered defendant to take the stand, swear an oath, and be subjected to direct examination. Defendant gave testimony as to his name but when questioned on direct as to whether he was married to plaintiff, he invoked the Fifth Amendment privilege.
Plaintiff’s counsel argued that defendant was required to testify to any matter relevant to the FRO and the underlying predicate offenses and that his failure to do so should warrant the trial court to draw an adverse inference. Plaintiff’s counsel explained to the trial court that he intended to ask defendant questions about driving by the home of plaintiff’s parents and the suspicious phone call. After consideration of the arguments by plaintiff’s counsel, the trial court ruled that defendant must answer the questions at the FRO or else a negative inference would be drawn as to defendant’s credibility.
The trial court stayed the FRO hearing pending defendant’s appeal of this issue. After the Appellate Division denied leave to appeal, the defendant filed a motion for leave to appeal before the New Jersey Supreme Court. While the motion for leave to appeal was pending, the Appellate Division issued a published decision in T.B. v. I.W., 479 N.J. Super. 404 (App. Div. 2024) which squarely aligned with the issues in the instant matter. The parties were directed by the Supreme Court to file supplemental briefings addressing the relevance of T.B. while granting the defendant’s motion for leave to appeal.
Defendant argued on appeal that he is entitled to invoke his right against self-incrimination in domestic violence matters where an FRO is sought. By answering questions related to the predicate offense, defendant contended that he would risk implicating himself as to criminal offenses which could be prosecuted separately regardless of whether criminal charges are pending at the time of the FRO hearing. Defendant noted that the immunity provision of N.J.S.A. 2C:25-29(a) contained under the PDVA does not safeguard his rights since it does not provide an absolute prohibition to the State using testimony from PDVA proceedings in a subsequent criminal proceeding.
Plaintiff filed a response to defendant’s appeal proffering that the Fifth Amendment does not provide a blanket privilege for PDVA defendant to refuse to answer questions pertaining to the predicate acts of domestic violence. Plaintiff maintained that the statutory immunity provision of the PDVA provides sufficient safeguards to the defendant such that any refusal to testify should give rise to an adverse inference.
In addressing the competing arguments of the parties, the New Jersey Supreme Court found that the Appellate Division’s analysis of the Fifth Amendment privilege in T.B. was particularly instructive. The Supreme Court agreed with the Appellate Division that the protections under the PDVA are not co-extensive with a defendant’s Fifth Amendment rights because it does not eliminate the possibility of the defendant being subject to future prosecution for the underlying predicate offense under the FRO. Therefore, it would be inappropriate for a court during a FRO hearing to draw an adverse inference where the Fifth Amendment right against self-incrimination is properly asserted by a defendant. The Supreme Court made clear that it is the criminality of the predicate acts, not the consequences associated with FRO, which give rise to a defendant’s Fifth Amendment protections.
Being that that Fifth Amendment is not an absolute right that the defendant may assert at all times and in any circumstances, the Supreme Court declared that a defendant is not permitted to invoke this constitutional guarantee as a blanket privilege as to all testimony during a PDVA proceeding. Rather, the privilege must be invoked on a question-by-question basis in which the defendant must have reasonable cause to apprehend danger from a direct answer. The Supreme Court posited that an innocuous question regarding the defendant’s marital status is in stark contrast to fact sensitive questions which go to the essence of the FRO hearing and could expose the defendant to criminal liability.
The Supreme Court explained that the trial judge must conduct an analysis each time that the defendant invokes the privilege. If there is no reasonable danger posed to the defendant by answering a question and the defendant refuses, only then may an adverse inference be drawn which would comport with the Fifth Amendment. Accordingly, the Supreme Court reversed the trial court’s decision and remanded the matter for further proceedings consistent with its opinion.
Observation: So now we have the definitive case and the interplay between the Fifth Amendment and domestic violence proceedings. M.A. v. J.H.M. sounds great on paper, but in the real world where these cases are handled in a rather summary fashion, it seems hard to fathom how a trial court will be able to give question by question analysis as to whether the Fifth Amendment can be invoked without consequences. Also, if the defendant takes the Fifth Amendment in response to an innocuous question (i.e. what is your marital status?) how significant would the adverse inference be anyway?
As noted last year in the discussion of T.B. v. I.W., it is a tall order for a defendant to prevail in a domestic violence proceeding when invoking the Fifth Amendment. Because these cases are fact sensitive and often the only witnesses are the plaintiff and the defendant, while invoking the Fifth Amendment may be required in cases with criminal implications, it is not likely to help the cause of a defendant seeking to avoid imposition of an FRO.
In re Estate of Michael D. Jones 259 N.J. 584 (2025)
Issue: As to U.S. savings bonds, is the beneficiary designation of a spouse during the marriage automatically revoked upon divorce in New Jersey?
Holding: No. If the bond owner dies and is survived by the beneficiary, “the beneficiary will be recognized as the sole and absolute owner of the bond.” 31 C.F.R. §353.15.70(c)(1). The U.S. Treasury Department will not recognize judicial determinations that “impair the rights of survivorship conferred by these regulations upon a . . . beneficiary.” 31 C.F.R. §353.20(a). In addition, N.J.S.A. 3B:3-14, the state statute which revokes beneficiary registration of assets as a matter of law upon divorce, does not conflict with and is not preempted by the aforesaid federal regulations because the statute recognizes that certain government instruments are exceptions to the aforesaid revocation provisions.
Discussion: Decedent Michael Jones (hereafter “Michael”) purchased U.S. savings bonds (hereafter “bonds”) while he was married to Jeanine Jones (hereafter “Jeanine”). During the marriage, Michael designated Jeanine as the pay-on-death beneficiary for the bonds. When the couple divorced, they entered into a Divorce Settlement Agreement (hereafter “DSA”) that provided for the disposition of certain property, but did not specifically list the bonds. The DSA required Michael to pay Jeanine a total of $200,000.00 over time in installments, in partial satisfaction of her equitable distribution claims. Following the parties’ divorce, Michael did not remove Jeanine as the pay-on-death beneficiary of the bonds.
After Michael’s death, Jeanine redeemed the bonds, which were worth approximately $77,800.00. At the time of his death, Michael had paid Jeanine approximately $110,000.00 towards his $200,000.00 obligation under the DSA. Shontell Jones, who was Michael’s daughter and the administrator of Michael’s Estate (hereafter “Michael’s Estate”), sought a determination from the trial court that Michael’s Estate had fulfilled Michael’s obligations under the DSA, arguing that the $77,800.00 in bonds and other cash Jeanine retrieved from Michael’s accounts after his death counted toward the $200,000.00 obligation. Citing to N.J.S.A. 3B:3-14, the state statute which revoked the beneficiary registration of assets as a matter of law upon divorce, the trial court agreed with Michael’s Estate and concluded that the bonds were not Jeanine’s separate property and counted towards Michael’s $200,000.00 obligation. Thereafter, Jeanine moved for reconsideration of the trial court’s ruling.
At oral argument before the trial court, Jeanine argued that the bonds were not specifically addressed by the DSA and, therefore, New Jersey equitable distribution laws did not apply to the bonds. Jeanine further asserted that federal rules regarding U.S. Savings Bonds under 31 C.F.R. § 353.70(c)(1) governed and preempted any agreement between the parties. The trial court denied Jeanine’s motion for reconsideration, finding that she was unable to establish that there was a palpable error or mistake. Thereafter, Jeanine appealed the trial court’s decision.
On appeal, the Appellate Division determined that the trial court erred as a matter of law in concluding that the bonds should be credited towards Michael’s $200,000.00 obligation. Citing to federal regulations under 31 C.F.R. § 353.70(c)(1), the Appellate Division explained that as a designated beneficiary, Jeanine became the sole owner of the bonds upon Michael’s death and was entitled to payment as the sole owner. In the absence of any allegation of fraud or breach of trust, the Appellate Division determined that the trial court’s application of N.J.S.A. 3B:3-14, the state statute which revoked the beneficiary registration of assets as a matter of law upon divorce, conflicts with the aforesaid governing federal regulations and is, therefore, preempted.
The New Jersey Supreme Court granted Michael’s Estate’s petition for Certification. At the outset, the Supreme Court determined that N.J.S.A. 3B:3-14 does not conflict with and is, therefore, not preempted by the federal statutes and regulations that govern the bonds. As relevant here, the state statute reads:
a. Except as provided by the express terms of a
governing instrument, a court order, or a contract
relating to the division of the marital estate made
between the divorced individuals before or after the
marriage, divorce or annulment, a divorce or
annulment:
(1) revokes any revocable:
(a) dispositions or appointment of property made
by a divorced individual to his former spouse in
a governing instrument and any disposition or
appointment created by law or in a governing
instrument to a relative of the divorced
individual’s former spouse.
[N.J.S.A. 3B:3-14(a)(1)(a).]
The general definitions section applicable to Title 3B of the New Jersey Statutes defines a “governing instrument” to include “a deed, will, trust, insurance or annuity policy, account with the designation ‘pay on death’ (POD) or ‘transfer on death’ (TOD), security registered in beneficiary form with the designation ‘pay on death’ (POD) or
or ‘transfer on death’ (TOD).” N.J.S.A. 3B:1-1 (emphasis added). And it defines “security” to include, among other items, “any note, stock, treasury stock, [or] bond.” Because N.J.S.A. 3B:3-14(a) incorporates and follows the relevant federal regulations in that it designates “bonds” to be an exception to the automatic revocation of beneficiary designations, the Supreme Court determined that automatic revocation of the beneficiary designation of the bonds did not occur and preemption does not apply.
In addition, the Supreme Court determined that Jeanine’s interest in the bonds was not revoked by virtue of the DSA. Specifically, the Supreme Court explained that the DSA was completely silent regarding the bonds and the record contains no suggestion that Michael took any steps to have the bonds reissued in only his name or to provide evidence of the DSA to the U.S. Treasury Department, in an effort to remove Jeanine as the beneficiary. Furthermore, the Supreme Court noted that the DSA’s broad catchall provision compels the equitable distribution of the bonds because it states, “[a]ny marital asset not listed below belongs to the party who has it currently in their possession.” The Supreme Court noted that while the bonds belonged to Michael at the time the DSA was executed and during his life, when Michael passed away Jeanine became the sole owner of the bonds as the pay-on-death beneficiary per 31 C.F.R. § 353.70(c)(1). Accordingly, the Supreme Court determined that the marital asset (i.e., bonds) now belonged to Jeanine, in accordance with the catchall provision of the DSA.
Ultimately, the Supreme Court concurred with the Appellate Division’s decision, but for different reasons, specifically noting that N.J.S.A. 3B:3-14 was aligned with, and not in contravention to, 31 C.F.R. § 353.70(c)(1). In that vein, the Supreme Court ordered that the $77,800.00 in bonds that Jeanine redeemed upon Michael’s death should not have been credited against the $200,000.00 because the bonds were her assets separate and apart from the $200,000.00 obligation owed by Michael’s Estate. The Supreme Court directed that Michael’s Estate pay the balance of the payments that remain due to Jeanine under the $200,000.00 obligation.
Observation:
Practitioners beware! If your case includes U.S. Savings Bonds awarded to your client, advise the client of the need to change beneficiary or (at a minimum) redeem the bonds. In re: Estate of Michael D. Jones makes clear that unless specifically addressed in the Matrimonial Settlement Agreement or Final Judgment, the Court will not disturb a beneficiary designation that may have been made many years before the divorce and may no longer represent the true wishes of the client.
It is disturbing to read how the Supreme Court failed to give effect to the plain language of an MSA which included the common catchall phrase “any marital asset not listed below belongs to the party who currently has the asset in their possession.” Does this suggest that future MSA’s should specifically name each asset each party is receiving, especially when there is a beneficiary designation attached to the asset?
Rappaport v. Pasternak, 260 N.J. 230 (2025)
Issue: Was the modification of an Arbitration Award by the Appellate Division appropriate where the plaintiff’s claim for damages based on the loss of future distributions of carried interest was never submitted to the Arbitrator?
Holding: No. The remedy of modification was not warranted under these circumstances where the Appellate Division’s remedy fundamentally affected the merits of the Arbitrator’s decision and did not conform to the deferential and narrow standard governing judicial review of Arbitration Awards.
Discussion: The nature of the dispute in this matter centers around a contested Arbitration Award for damages in which the plaintiff (“Rappaport”) and defendants were members of five limited liability companies collectively known as the KABR entities. Rappaport was a managing partner of the KABR entities. The operating agreement for each company included an Arbitration provision stating that any question or dispute arising in connection with the operating agreement would be solely and exclusively resolved based on New Jersey or Delaware Alternative Dispute Resolution statutes.
As the managing partner of KABR entities, Rappaport was compensated by distributions from management and development fees paid to companies and distributions from investments fees paid to the investment funds. One form of compensation paid to the KABR members was carried interest which Rappaport understood to be any share of profits produced by a partnership’s investment which is paid to the general manager as compensation for managing the investment.
In 2019, Rappaport was removed from his managerial position by members constituting two-thirds of each KABR entity. It was alleged that Rappaport committed acts of mismanagement and misconduct as manager of the KABR entities. Although Rappaport was no longer paid management fees, he continued to receive distributions for carried interest pending resolution of the corporate dispute.
Rappaport responded by filing an action in the Chancery Division, individually and as a member of the KABR entities, in which he sought monetary damages, interest, and attorney’s fees and costs. Based on the company operating agreement, the complaint in the Chancery Division was dismissed without prejudice and the matter was removed to Arbitration. The parties entered into an Agreement to Arbitrate which designated the Hon. James R. Zazzali (Ret.) as Arbitrator and which limited the scope of the Arbitration to adjudicating the claim, counterclaim, and related matters with respect to the dissolution or disassociation of Rappaport or his employment with the KABR entities.
The Arbitration hearing was conducted over 14 days. During the hearing, Rappaport testified as to the issue of carried interest and acknowledged that it was a separate component of his damages which he estimated to be $25,000,000.00. All told, Rappaport sought a total of $69,000,000.00 in damages while the defendants sought a total of $11,000,000.00 in damages.
In ruling on the numerous claims and counterclaims, the Arbitrator awarded $4,900,000.00 to Rappaport which was partially offset by an award to defendant Pasternak resulting in a total net award to Rappaport in the amount of $3,800,000.00. The Arbitrator found that defendants lacked cause for removing Rappaport as manager of the KABR entities but declined to reinstate Rappaport as manager. Notably, the Arbitrator denied Rappaport’s $25,000,000.00 claim for damages based on carried interest in the exercise of his discretion.
Following entry of the Arbitration Awards, Rappaport contended that the Arbitrator acted beyond the scope of the Arbitration by ruling on the question of carried interest based on the loss of future distributions. Rappaport filed a second complaint in the Chancery Division seeking a declaration that he was entitled to carried interest going forward because the Arbitrator did not find that he was not a member or was disassociated as a member of the KABR entities. The Chancery Division remanded the case back to the Arbitrator to determine whether the $4,900,000.00 award in damages to Rappaport represented the full compensation due to him both as manager and member of the KABR entities. The Arbitrator clarified before the Chancery Division that his ruling in the Arbitration was a full and final award for damages.
After the Arbitration Awards were confirmed by the Chancery Division, Rappaport subsequently initiated an appeal seeking modification of the Arbitration Award. On review, the Appellate Division affirmed the Arbitrator’s Awards for Rappaport’s claims for lost income and future income based on his termination as manager. Notwithstanding, the Appellate Division determined that the parties specifically excluded the question of carried interest from the Arbitration and that Rapport’s interest as an investor and the status of his equity in the companies were not claims raised during the Arbitration. The Appellate Division further acknowledged that there was adequate support in the operating agreements that Rapport was entitled to carried interest and that he did not waive his rights as a member by failing to assert this claim during the Arbitration.
The defendants thereafter filed a writ of certification with the New Jersey Supreme Court. In reviewing the decision by the Appellate Division, the Supreme Court disagreed with the Appellate Division’s conclusion that the parties excluded the question of carried interest from the Arbitration and that the Arbitrator improperly ruled on an issue that was not presented to him. The Supreme Court found that the issue of Rappaport’s rights under the operating agreements and his right to future compensation was directly presented to the Arbitrator at the pleading stage by both sides. Not only was a pre-hearing motion in limine filed by Rappaport which put the issue of his compensation to the forefront of the Arbitration, it was noted by the Supreme Court that Rappaport in fact testified on direct examination before the Arbitrator as to the $25,000,000.00 estimated value of his carried interest.
The Supreme Court was further critical of the Appellate Division’s determination that the $4,900,000.00 of Rappaport’s awards which encompassed his carried interest claim was implausible. The Supreme Court made clear that the task of the appellate panel is not to evaluate whether the Arbitrator committed errors of fact or law but rather, to scrutinize the validity of the Arbitration Award under N.J.S.A. 2A:23B-24(a)(2) as to whether the Arbitrator was honest and if he acted within the scope of the Arbitration Agreement. The Supreme Court concluded that the answers to both questions were yes and reversed the ruling by the Appellate Division while affirming the judgment of the Chancery Division.
Observation:
In our new world where many cases are being diverted from the courts and sent to binding arbitration, it becomes critical for the drafters of an Arbitration Agreement to provide the rules of the road. If a party is concerned about the Arbitrator entering rulings they disagree with, the appointment of an Appellate Arbitrator may be in order. If there is not an Appellate Arbitrator, practitioners should understand that court review (trial court or Appellate Division) is limited to whether the Arbitrator acted dishonestly or exceeded his authority under the scope of the Arbitration Agreement. Hogoboom v. Hogoboom, 393 N.J. Super. 509 (App. Div. 2007). Errors and abuse of discretion that may otherwise be corrected on appeal are not a basis to change the Arbitrator’s award unless an Appellate Arbitrator is agreed upon and vested with such power to correct the errors of the Arbitrator.
Voynick v. Voynick, 481 N.J. Super. 207 (App. Div. 2025)
Issue: Did the Family Part apply the correct legal standard as enumerated in N.J.S.A. 2A:34-23(j)(3) for settlement agreements entered into prior to the 2014 amendments of the alimony statute in determining that the defendant had not sufficiently demonstrated a prima face claim of changed circumstances in seeking a termination of his alimony obligation to the plaintiff based on retirement?
Holding: No. Although a typical method of showing prima facie changed circumstances under N.J.S.A. 2A:34-23(j)(3) is to prove that the financial circumstances of the obligor has diminished due to their retirement, this may also be established under the statute by the trial court conducting a review of the obligee’s financial disclosures or other evidence in the record exhibiting: (1) an obligee has adequately saved for retirement and no longer has a continuing need for alimony; or (2) an obligee had the ability to adequately save for retirement after the final judgment of divorce and had they done so, would no longer have a continuing need for alimony. Accordingly, discovery and a plenary hearing are necessary to address genuine issues of material fact relating to the obligee’s ability to have saved adequately for retirement impacting their continuing need for alimony.
Discussion: The parties were involved in a long-term marriage in excess of twenty (20) years duration. A Final Judgment was entered in September 2003 which incorporated the parties’ Property Settlement Agreement (“PSA”). During the marriage, the defendant (hereinafter “Husband”) was the owner of a veterinary practice and the plaintiff (hereinafter “Wife”) worked as a bookkeeper for the veterinary practice but was primarily responsible for taking care of the children and maintaining the former marital home. Following the divorce, the Wife ceased working for the veterinary practice and was unemployed.
In reference to the Husband’s alimony obligation, paragraph 3 of the parties’ PSA provided that the Husband was to pay permanent alimony to the Wife in the amount of $120,000.00 per year commencing September 15, 2003 at the rate of $10,000.00 per month. Paragraph 4 of the PSA stated in relevant part that the alimony payments would be taxable to the Wife and tax deductible to the Husband and that this obligation would continue until the first of the following events: (1) death of either the Husband or Wife; (2) or remarriage of the Wife. It was contemplated in paragraph 5 of the PSA that there would be no anti-Lepis clause and that the alimony would be modifiable based on changed circumstances. As security for the Husband’s alimony payments to the Wife, paragraph 26 of the PSA made clear that Husband shall maintain $1,000,000.00 of life insurance on his life designating the Wife as irrevocable beneficiary of $750,000.00.
The PSA also included a recitation of the Husband’s income upon which alimony was determined utilizing a gross income for the Husband of $400,000.00 at the time of the Agreement. In the years following the divorce, the Husband sold his veterinary practice in 2020 and thereafter fully retired in May 2021. The Husband claimed that he took his health and other factors into consideration when retiring. The Husband attained full retirement age under New Jersey law upon becoming eligible full social security retirement benefits when he turned 66.4 years old in April 2023.
After the divorce, the Wife moved to North Carolina and did not obtain employment since she had worked as a bookkeeper for the Husband’s veterinary practice more than twenty (20) years prior to the filing of the Husband’s post-judgment application. The Wife suffered from various medical conditions over the years and claims that her physical ailments impacted her employability following the divorce.
The Husband continued to pay alimony to the Wife pursuant to the PSA until he reached full social security retirement age. He also filed a motion with the Court in which he sought to terminate his alimony obligation, terminate life insurance, and require the Wife to pay his counsel fees in connection with his application. The Husband’s application for relief included a certification accompanied by supporting exhibits including a current case information statement (“CIS”). Notably, the Husband’s motion did not include a request for a reduction of his alimony obligation.
The Husband relied in his supporting certification on the fact that he waited until 66.5 years of age to file his application with the trial court. He also certified that upon retiring, he would have no earned income to continue making alimony payments to the Wife.
In response, the Wife filed a cross-motion requesting enforcement of the parties’ PSA and sought an increase in alimony by $6,000.00 per month along with counsel fees. The Wife submitted an opposing certification in which she asserted living a modest lifestyle, incurring significant medical expenses due to various health issues, being unable to make up the loss of alimony as a result of having to take significant withdrawals from her retirement assets.
The Husband’s current CIS reflected that the total value of his assets was approximately $8,000,000.00. In contrast, the Wife’s current CIS that was filed along with her cross-motion disclosed that she had a present net worth of $2,750,000.00. The Wife’s assets primarily consisted of equity in her home which she valued at $1,460,000.00 and her retirement accounts which she valued at $1,600,000.00.
The Husband subsequently filed a reply certification in which he contended that the Wife had sufficient financial resources in order to support herself. He asserted that the Wife was able to accumulate over $1,500,000.00 in retirement assets, failed to disclose the existence of an inheritance in the approximate amount of $200,000 in addition to a family trust in the name of her father in which she was a beneficiary, and funded the construction of a $2,000,000.00 lake front home in North Carolina which was placed in trust.
After oral argument, the trial court determined that the Husband had not met his burden of showing a prima facie change in circumstances warranting a termination of his permanent alimony obligation. The trial court explained that the Husband had approximately $8,000,000.00 in assets and also focused on the plain language of the PSA which provided that the only termination of alimony would be based on death or remarriage rather than retirement. The trial court was also troubled by the terminology of “permanent alimony” and that granting the Husband a termination would be incongruent with the concept of making alimony permanent.
The Husband filed an appeal of the trial court’s decision in which he argued that the trial court misinterpreted the PSA concerning events which should have been considered as changed circumstances, failed to find that the Husband’s good faith retirement was changed circumstances which warranted a review of his permanent alimony obligation, and that the factors of N.J.S.A. 2A:34-23(j)(3) were misapplied which led to an erroneous and inequitable result.
In addressing the Husband’s arguments on appeal, the Appellate Division first considered whether the PSA excluded other events beyond death and remarriage which would qualify as a change in circumstances to modify alimony. The Appellate Division found that the PSA did not include an anti-Lepis clause which would contractually prohibit the Husband from seeking a termination of his alimony for reasons not explicitly enumerated in paragraph 4 of the Agreement. In fact, the Agreement specifically stated to the opposite that there was no anti-Lepis clause thereby permitting the Husband alimony obligation to be modified based on changed circumstances. Therefore, the Appellate Division concluded that the trial court abused its discretion by not recognizing the Husband’s retirement as a permissible change in circumstance under the PSA.
As for the trial court’s decision to deny the Husband’s application because he sought a termination rather than a downward modification, the Appellate Division likewise found that the trial court committed error. The legal principles of changed circumstances which are set forth in Lepis apply for both a termination and modification of an alimony obligation. Thus, the Appellate Division noted that the Husband’s failure to seek a reduction of his alimony obligation rather than a termination did not prejudice the Wife since the Husband’s burden of showing changed circumstances is the same for both termination and modification of alimony.
In response to the Husband’s claim that he established prima facie changed circumstances based on attaining good faith retirement age, the Appellate Division noted that this case fell under the purview of N.J.S.A. 2A:34-23(j)(3) as the settlement agreement was entered into prior to the 2014 amendments to the alimony statute. Thus, there is no rebuttable presumption that alimony terminates based on just reaching a full or good faith retirement age.
The Appellate Division agreed with the trial court that the Husband failed to show diminished financial circumstances warranting a termination of his alimony obligation despite the loss of his earned income. The fact that the Husband had approximately $8,000,000.00 in assets and a potential income stream which could be derived from these assets demonstrated that he had the ability to continue paying alimony. The Husband also failed to provide sufficient information in his CIS, certification, and other submissions to allow the trial court to undertake a proper analysis of his income and assets to determine whether there was a prima facie showing of a changed circumstance.
However, the Appellate Division explained that the evaluation of the Husband’s application by trial court should not have started and ended with his financial circumstances. Rather, subsection (j)(3) of the statute explicitly sets forth the ability of an obligee to have saved adequately for retirement along with other relevant factors. Accordingly, the Appellate Division observed that it was the intention of the Legislature that prima facie changed circumstances could also be proven based on evidence that the obligee had adequately saved for retirement or had the ability to do so. In recognition of that point, the Appellate Division remanded the matter to the trial court for discovery and a plenary hearing to assess the Wife’s financial disclosures relating to her continuing need for alimony and her ability to have adequately saved for retirement.
Observation:
It is concerning to read that a trial court would deny a hearing to a retiree who had reached full retirement age, simply because the settlement agreement that referenced Lepis did not specifically address retirement as a change in circumstances. Fortunately, the Appellate Division got it right and sent the matter back for a plenary hearing. Will the Husband win this time? It’s not clear based on this record as the Husband has apparently over $8 million in assets which may be enough to sustain a $120,000.00 per year taxable alimony obligation. On the other hand, the headline news of this case is that the Appellate Division makes clear that an analysis of the Wife’s financial circumstances is necessary to determine whether the Wife adequately saved or had the ability to adequately save for retirement. This makes sense because in a day and age where alimony petitioners regularly seek a savings component, it may be that the savings component may open the door to a termination of alimony upon reaching reasonable retirement age notwithstanding the payor’s financial circumstances.
Van Den Ende v. Philip Reynolds, ___ N.J. Super. ___ (App. Div. 2025)
Issue: Did the trial court err by dismissing the plaintiff’s claims in his pleadings which sought equitable distribution of marital property located in South Africa based under the principles of comity and forum non conveniens?
Holding: Yes. Although the plaintiff’s action was filed in South Africa first and the shareholders records for the two companies at issue are located in South Africa, the dismissal of the plaintiff’s equitable distribution claims was premature and improper as there were material and disputed factual issues concerning the filing of the South Africa action and whether the plaintiff was subject to personal jurisdiction in South Africa which warranted an evidentiary hearing.
Discussion: The parties in this matter were born and married in South Africa. The parties had one child who was born in South Africa in March 2015. On April 2, 2009, only two days prior to the parties’ marriage, the plaintiff (“Wife”) and defendant (“Husband”) entered into an Agreement which provided that their marital estate would be divided in accordance with an accrual system governed by South African statutes. There was no choice of forum language enumerated in the Agreement.
The Wife relocated to New Jersey with the parties’ child in August 2017 after obtaining a new job. The Wife claimed that the Husband was unable to move to New Jersey for eighteen months or else he would have to repay a sign-on bonus with his employer. The Husband never moved to New Jesey as the Wife accused the Husband of engaging in extramarital affairs in South Africa.
The Wife filed for divorce from the Husband on November 30, 2021 in the Morris County Family Part in which she pled irreconcilable differences. In furtherance of her complaint, the Wife sought custody of the child, child support, alimony and equitable distribution of the parties’ assets, including those which were located in South Africa, United Kingdom, and offshore accounts. The complaint also referenced the parties’ Agreement regarding division of assets that was signed in South Africa in 2019 although the Wife alleged that it was invalid.
On September 23, 2022, the Husband filed an answer and counterclaim for divorce in the New Jersey action brought by the Wife. Although the Husband was residing in Johannesburg, South Africa, he conceded that New Jersey had jurisdiction over dissolution of the marriage, custody, child support, and alimony. However, as it related to division of assets based on the parties’ 2019 Agreement, the Husband asserted that South Africa, not New Jersey, had proper jurisdiction over those issues.
Litigation of the divorce action was significantly delayed as the parties were unable to reach a consensus on the scope of discovery. The Husband failed to file a Case Information Statement or provide any financial disclosures setting forth his assets and income. After the matter had been pending for two years, the Wife filed a motion to hold the Husband in default for his noncompliance with discovery.
Without any notice to the Wife, the Husband filed an edictal citation with the registrar of the Johannesburg High Court of South Africa on February 23, 2024 seeking a declaratory judgment, without a claim for divorce, to enforce the validity of the parties’ Agreement. The Husband contended that legal protocols were followed making the Agreement valid and enforceable under South African law.
Thereafter, on March 6, 2024, the Husband filed a notice of cross-motion in New Jersey seeking to dismiss the Wife’s motion and to obtain an order finding for lack of subject matter jurisdiction over the marital distribution of property. Following oral argument on the motions before the trial court, the Husband withdrew his edictal citation in South Africa and instead filed a request in South Africa for leave to sue for a temporary division of assets.
In ruling on the parties’ applications, the trial judge entered an Order on July 19, 2024 accompanied by a statement of reasons. Notably, the Wife’s motion seeking discovery was denied and the Husband’s cross-motion dismissing the Wife’s equitable distribution claims related to marital assets located in South Africa was granted. The trial judge found that New Jersey lacked subject matter jurisdiction over the South African assets as comity applied to the prior South African proceedings and South Africa was the more appropriate forum to address the property claims. Furthermore, by registering the 2019 Agreement in South Africa, the parties voluntarily conferred subject matter jurisdiction to the South African court system to adjudicate issues related to the valuation and distribution of marital property.
The Wife subsequently filed a motion for reconsideration in which she submitted an expert report from a member of the Cape Bar in South Africa. The expert claimed that the proceeding filed in South Africa was procedurally deficient because South Africa had not acquired personal jurisdiction over the Wife and therefore could not effectuate a division of assets. The expert further proffered that the Husband did not file for divorce in South but only an application for the distribution of matrimonial property.
The Wife’s application for reconsideration of the July 19, 2024 Order was ultimately denied. The trial court reaffirmed that dismissal of the equitable distribution claims was proper based on forum non conveniens as the South Africa court system was the superior forum to handle those issues.
The Wife proceeded to file an appeal of the reconsideration order. Among some of the issues that were raised in the Wife’s appeal, she argued that the trial court erred by separating the division of marital assets located in South Africa from other issues and that the trial court misapplied the doctrine of judicial comity by permitting a separate action to proceed in South Africa.
In reviewing the facts and issues presented on appeal, the Appellate Division concluded that dismissal of the counts in the Wife’s complaint was improper and that there were disputed facts which needed to be resolved at a plenary hearing. Although the Appellate Division recognized that the doctrine of judicial comity is in the discretion of the trial court, the record was clear that the New Jersey divorce action was the only divorce case that was filed. Moreover, the Appellate Division explained that there were significant questions as to whether South Africa could even exercise jurisdiction over the Wife who has been living in New Jersey with the child for more than seven years.
As part of a plenary hearing, the Appellate Division noted that the trial judge would need to hear testimony and resolve factual disputes to determine whether South Africa would exclusively have jurisdiction over the division of assets. The trial judge would also need to engage in an inquiry as to whether the Wife would have opportunity for adequate relief in the South African case which only dealt with a temporary division of property and whether the equitable distribution claims in New Jersey were substantially similar to those being raised in South Africa.
The Appellate Division reversed the portions of the prior Orders by the trial court dismissing the Wife’s equitable distribution claims in her complaint. The matter was further remanded with instructions for the trial judge to conduct a plenary hearing over the issue of jurisdiction.
Observation:
Even assuming that the law of South Africa controlled in dividing assets, shouldn’t the New Jersey judge put on her South Africa judicial hat in order to determine the division of assets along with all other issues in one forum? Isn’t there a connection between division of assets, child support, and alimony such that you cannot determine these issues in isolation? (See N.J.S.A. 2A:34-23). Wasn’t New Jersey the best forum to decide equitable distribution as it was the only forum to clearly have jurisdiction over both parties once the Husband conceded to its jurisdiction? These are all questions to be answered by the trial court on remand. Remember: to decide child support the court shall consider all sources of income and assets of each parent (N.J.S.A. 2A:23a(3)); and to decide alimony the court shall consider the equitable distribution of property ordered (N.J.S.A. 2A:34-23b(10)).
A.C. v. R.S., ___ N.J. Super. ___ (App. Div. 2025)
Issue #1: Did the text messages which the plaintiff received from the defendant constitute lewdness or cyber-harassment warranting a Final Protective Order (“FPO”) under the Victim’s Assistance and Survivor Protection Act (“VASPA”)?
Holding: No. While the defendant’s text messages to the plaintiff regarding oral sex were obscene, this communication does not meet the standard for lewdness under VASPA which requires exposing of the genitals for purposes of arousing the sexual desire of the defendant or another individual. The plaintiff also cannot sustain a claim for cyber-harassment under VASPA as the text messages by the defendant threatening to report the plaintiff to her employer does not subject either plaintiff or her property to any risk of physical harm.
Issue #2: Does a SMS text message qualify as an online communication which meets the online element for cyber-harassment in order for the plaintiff to seek protection under VASPA?
Holding: Yes. Although SMS text messaging utilizes cellular data rather than the internet, they are able to be transmitted online. Based on the dual modality of SMS text messaging, these qualify as online communications which the Legislature intended to fall under the purview of VASPA.
Discussion: A.C. (“plaintiff”) filed a complaint against R.S. (“defendant”) under VASPA in which she alleged that she was the victim of stalking and cyber-harassment as a result of an incident that occurred outside the plaintiff’s home on November 10, 2024. The plaintiff obtained a Temporary Protective Order (“TPO”) against the defendant. Although the parties were unfamiliar with each other at the time of the incident, the plaintiff was in a romantic relationship with the defendant’s husband. The defendant and her husband were further in the midst of divorce proceedings at the time that the incident occurred.
In recounting the facts of the incident leading to the TPO, the defendant appeared at the plaintiff’s residence around 12:30 a.m. in which she proceeded to ring the doorbell. The plaintiff heard a loud banging on her living room window in which a woman who was later identified to be the defendant demanded that the plaintiff come outside. While the plaintiff did not recognize the defendant’s voice, the defendant’s husband who was staying with the plaintiff was aware of the defendant’s presence and he went outside to urge the defendant to leave the residence. The defendant refused to leave which prompted the plaintiff to contact the police who arrived at plaintiff’s home and persuaded the defendant to leave.
After the defendant left the scene, the plaintiff received group text messages around 2:00 a.m. in which the phone numbers of the plaintiff, defendant, and defendant’s husband were included in the group. The defendant sent a total of ten (10) text messages in which she was making disparaging statements about the plaintiff and threatened to reveal information to plaintiff’s prior employer, the Essex County Department of Corrections, as well as the plaintiff’s current employer. The defendant followed up some of her text messages with a voicemail to the plaintiff in which she described her as desperate and pathetic. The defendant thereafter sent an additional text message in the group chat referencing acts of oral sex between her and the defendant’s husband while also texting a screenshot of plaintiff’s Facebook profile picture. Although the defendant’s husband pleaded with the defendant to stop, the defendant followed up with another text which revealed that she knew her husband visited the plaintiff when the plaintiff’s children were not present. The plaintiff did not respond to any of the defendant’s messages and was uncertain as to how the defendant obtained the plaintiff’s phone number and knew that she had children.
At the final hearing, both parties gave testimony with regard to the circumstances surrounding the previous incident. The plaintiff testified that she needed an FPO in order to protect herself and her children and that she viewed the defendant’s behavior as being erratic and a safety risk. The defendant testified that she obtained plaintiff’s personal information from a voicemail that the plaintiff had left for the defendant’s husband. The defendant further testified that she was upset when she learned that her husband was seeing another woman and that the plaintiff’s relationship with the defendant’s husband commenced two months after the complaint for divorce was filed. The defendant also denied that she was going to appear at the plaintiff’s place of employment but was only intending to contact her employer because she did not believe it was right for the plaintiff to be sleeping with a married man.
Upon conclusion of the testimony, the trial judge found that the plaintiff did not meet her burden of stalking as there was only one incident which took place between the parties. However, the trial judge did find that plaintiff proved cyber-harassment as defendant’s threat to go to plaintiff’s employer was a threat of harm to plaintiff’s personal property. Moreover, the trial judge determined that the text message initiated by the defendant which referenced acts of oral sex was a lewd comment directed at the plaintiff for purposes of harassment. The entry of an FPO was also found to be appropriate by the trial court as the defendant’s text messages to the plaintiff at 2:00 a.m. and her appearance unannounced at the plaintiff’s home demonstrated a clear intent to harass the plaintiff.
On appeal of the trial court’s decision, the defendant contended that the finding of cyber-harassment was erroneous as the communications were not made online or on social media but rather through text message which is not enumerated in the VASPA statute. The defendant also claimed that she did not threaten physical harm to the plaintiff or her property when she threatened to go to her employer nor did she engage in sending any lewd or indecent material to the plaintiff with the intent of harming her or putting her in fear of harm.
In reviewing the record during the FPO hearing, the Appellate Division determined that the defendant did not violate VASPA by engaging in lewdness and reversed the ruling of the trial court. The Appellate Division observed that lewdness under the VASPA statute is defined as the exposing of the genitals for the purposes of arousing or gratifying the sexual desire of the actor or any other person. The fact that the defendant may have been boasting about her sexual proclivities did not meet the criteria necessary for lewd conduct under VASPA.
As for the defendant’s claim that the text message did not meet the standard for an online communication under VASPA, the Appellate Division rejected that argument in pronouncing that the Legislature clearly intended the breadth of VASPA to cover those individuals who are victims of offenses in which they are not afforded protection under the Prevention Against Domestic Violence Act. The Appellate Division noted that the public policy imperative is to assure victims of domestic violence the maximum protection from abuse that the law can provide.
Notwithstanding the clear intention of the Legislature to protect victims of abuse, the Appellate Division clarified that text messages are online communications which are able to be transmitted in three different forms: SMS (short message service), MMS (multimedia messaging service), and RCS (rich communications service). Although SMS messages typically utilize a traditional cellular network, these text messages are able to be transmitted online through the internet making them appropriate as online communications which would be satisfy the statutory requirements under VASPA.
In vacating the FPO that was entered by the trial court, the Appellate Division found that the defendant’s statement that she would contact the plaintiff’s prior and current employers did not qualify as cyber-harassment because there was no threat by the defendant of inflicting any injury or harm or committing a crime affecting plaintiff’s employment. The Appellate Division added that although the defendant was targeting the plaintiff’s job which is her property, the outcome of this issue may have been different if the defendant was spreading false or illicit rumors injurious to plaintiff rather than merely intending to inform plaintiff’s superiors as to her relationship with the defendant’s husband.
Observation:
Remember the Prevention of Domestic Violence Act (PDVA) would not have applied here because the plaintiff did not meet the definition of victim under the Act (i.e. spouse, former spouse, household member, child in common, dating relationship, etc.). Under N.J.S.A. 2C: 14-13, the Victim’s Assistance and Survivor Protection Act originally adopted in 2015 and renamed in 2023 to include stalking and cyber harassment, persons not eligible for a restraining order under the PDVA can apply for a protective order for acts of nonconsensual sexual contact, sexual penetration, lewdness, stalking, or cyber harassment. A.C. v. R.S. now makes clear a) that text messaging is encompassed within the electronic communications which are deemed cyber harassment; b) that a person’s employment is in fact “property” under the statute’s definition of stalking such that an effort to interfere with one’s employment falls under the Act; and c) VASPA is to be interpreted like the PDVA to provide maximum protection to victims.
* I wish to thank my associates, John P. Paone, III and Victoria Paone Rosa, for their assistance in the preparation of this article.
