In 2010, several factors limited the number of reported family law decisions. The current economic times coupled with the costs involved in taking a case to final hearing and then up on appeal makes the process not financially feasible in many cases. The rise of alternate dispute resolution resolving cases through mediation or arbitration, while desirable, does not advance the case law. Finally, family law is maturing to the point where fewer novel issues arise which warrant a reported opinion.
The following is an outline of what I consider to be the ten (10) most important reported cases decided in 2010. These cases addressed significant issues relevant to the practice of divorce and family law. This presentation will review each opinion and the impact that it will have upon our practice and future Family Court matters. Practice tips will also be discussed as to how matrimonial attorneys can best utilize these decisions.
Johnson v. Johnson, 204 N.J. 529 (2010)
Issue: Is a verbatim transcript necessary to confirm an arbitration award which addresses child custody or parenting time issues?
Holding: No. The record created by the arbitrator in this matter, which included a recitation of all evidence considered, a recapitulation of every interview and observation he conducted, a full explanation of the underpinnings of the award, and a separate opinion satisfies the spirit of Fawzy v. Fawzy, 199 N.J. 456 (2009), and is an acceptable substitute for a verbatim transcript.
Discussion: The parties were divorced in 2005. As part of the Property Settlement Agreement, the wife ceded residential custody of the parties’ two children to the husband. The parties agreed to share legal custody and agreed on an informal parenting time schedule. Following the divorce, the parties encountered difficulties with the parenting schedule and consented to resolving their issues in arbitration. The arbitration agreement was extremely thorough and detailed the parties’ expectations regarding how the case was to be conducted. The agreement vested the arbitrator with the duty to make findings of relevant material facts and legal determinations, afforded a right to file a motion for reconsideration of the award and for modification, and specified that there would be no transcript of proceedings, and that the detailed findings of the arbitrator would constitute the record, as supplemented by the written certified statements submitted by the parties prior to arbitration.
The arbitrator conducted various interviews, including those with the husband and wife, the husband’s new spouse, the children, a psychologist, and a clinical social worker who had previously counseled the parties. He also observed the children in both home settings and reviewed their school records. Upon issuing his award, the arbitrator recounted the substance of every interview and observation he undertook, including a particularized recitation of the parties’ claims about their different approaches to parenting. The arbitrator also detailed the psychologist’s impressions and the results of his consultation with the social worker.
In April 2008, the arbitrator issued his award. The award crafted a parenting time arrangement whereby he increased the amount of uninterrupted weekly time the children spent with the husband, but extended the weekend and holiday time spent with the wife. He also referred the wife for an evaluation for Attention Deficit Hyperactivity Disorder based on her time management and attention difficulties, and referred the husband to counseling for his unresolved emotions related to the divorce.
The wife filed a motion for reconsideration of the entire decision or clarification of the extent of her vacation time. The basis of her motion was that she did not feel that her concerns were considered by the arbitrator when making his award. The arbitrator prepared another detailed decision in which he reaffirmed his conclusions. The wife then sought the arbitrator’s removal based on the Appellate Division’s decision in Fawzy v. Fawzy, 400 N.J. Super. 567 (App. Div. 2008), which at the time held that parties cannot agree to binding arbitration in a custody/parenting time matter. In response, the husband filed a motion to confirm the arbitrator’s award. After a hearing, the trial judge confirmed the arbitrator’s award. The wife appealed. In the meantime, the Supreme Court issued its opinion in Fawzy. In Fawzy, the Supreme Court required that a record of all documentary evidence be kept and that testimony be recorded verbatim. Based on the Supreme Court’s decision in Fawzy, the Appellate Division reversed the trial court decision, concluding that because there was no verbatim record of testimony, the trial court had no basis on which to evaluate a threat of harm to the children or to confirm the award.
Under Fawzy, when a child custody or parenting time arbitration award issues, one party will ordinarily move for confirmation. If there is no challenge, the award will be confirmed. If there is a challenge that does not implicate harm to the child, the award is subject to review under the limited standard in the relevant arbitration statute or as agreed by the parties. If a party advances the claim that the arbitration award will harm the child, the trial judge must determine whether a prima facie case has been established. If the claim is one that would implicate harm to the child, the judge must determine if the arbitration record is an adequate basis for review.
Because there was no record whatsoever in Fawzy, no review could take place and the arbitration award was vacated in that matter. In the current matter, however, the arbitrator created a full record of what transpired. He gave a complete recitation of what the parties told him and what he heard and saw during his observations. His opinions were painstakingly detailed. The Supreme Court, therefore, held that what matters is the state of the record. Where the arbitrator creates a detailed record for review, the award can be confirmed without verbatim transcription.
Observation: The Supreme Court, by way of this decision, relaxed its stance on whether a verbatim transcript is necessary to confirm an arbitration award. Nevertheless, the Court warned arbitrators that “it would behoove any arbitrator tasked with resolving a child custody or parenting-time issue to prepare a record, at least as detailed as the one we have approved today.” Practitioners with matters in arbitration would be taking a great risk by not having a verbatim record, and then hoping the arbitrator is a great note taker. Practitioners should ensure that arbitration agreements provide for verbatim transcription as to custody and parenting time issues. To the extent a verbatim record is deemed undesirable for other aspects of the case, trial of the custody and parenting time issues should be bifurcated and conducted separately with verbatim transcription.
By this decision, the Court again signals that it is encouraging arbitration as an alternative to litigation. In my opinion, arbitration allows practitioners to address family law matters better, cheaper and quicker. On top of this, the matters are addressed out of the public eye and in the less stressful environment – as opposed to a courtroom.
Crespo v. Crespo, 201 N.J. 207 (2010)
Issue: Is the Prevention of Domestic Violence Act unconstitutional because it allows for the Legislature to intrude upon the exclusive power of the courts to make rules governing the court system?
Holding: No. Although the Legislature has promulgated certain guidelines for the courts to follow in administrating the Prevention of Domestic Violence Act, the Supreme Court has adopted and implemented those guidelines and promulgated a Domestic Violence Procedures Manual embracing and enhancing those Guidelines.
Issue: Is the Prevention of Domestic Violence Act unconstitutional because it calls for a preponderance of the evidence standard as opposed to a clear and convincing standard?
Holding: No. In Roe v. Roe, 253 N.J. Super. 418 (App. Div. 1992), the Appellate Division previously determined that the preponderance standard passed constitutional muster. The preponderance standard “better serves the purpose of the Act in protecting victims of domestic violence” because allegations of domestic violence are often “difficult to prove due to the[ir] private nature,” and there are “usually few, if any, eyewitnesses to marital discord or domestic violence.”
Issue: Is the Prevention of Domestic Violence Act unconstitutional because it allows for the seizure of a defendant’s firearms upon a finding of domestic violence?
Holding: No. The United States Supreme Court in Presser v. Illinois, 116 U.S. 252 (1886) held that the Second Amendment is “a limitation only upon the power of Congress and the National government, and not upon that of the States.” The decision in District of Columbia v. Heller, 128 S. Ct. 2783 (2008) did not alter the view expressed in Presser and other decisions that the Second Amendment poses no limits on the states. Moreover, Heller should not be taken “to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Issue: Is the Prevention of Domestic Violence Act unconstitutional because it requires a final hearing within ten (10) days of the filing of the complaint?
Holding: No. the Supreme Court in H.E.S. v. J.C.S. 175 N.J. 309 (2003) already found that the ten (10) day provision comports with the requirements of due process. Where in this case, the final hearing did not take place until twenty-three (23) days after the complaint was filed, the defendant was provided with more than sufficient time to respond to the complaint. Moreover, the defendant was not prejudiced by his inability to depose plaintiff or obtain other discovery, as domestic violence actions are “summary actions,” a fact that inherently precludes the right to discovery.
Issue: Is the Prevention of Domestic Violence Act unconstitutional because it fails to allow for a jury trial?
Holding: No. The right to a jury trial in New Jersey is constitutionally required only if expressly permitted by the Legislature or if the right existed at common law. Moreover, because the nature of the relief sought is an injunction—an equitable remedy— the right to a trial by jury would not have existed at common law.
Issue: Is the Prevention of Domestic Violence Act unconstitutional because it fails to guarantee a right to counsel?
Holding: Maybe. However, in this case, where the defendant never sought the appointment of counsel, the issue is not properly before the court.
Discussion: The parties were married in 1984 and divorced in 2001. Despite the divorce, they continued to inhabit the same two-family house, with the plaintiff residing on the first floor with the children, and the defendant living on the second floor with his parents. In 2004, after a dispute over child support, plaintiff obtained a temporary restraining order (TRO) against the defendant. Subsequently after a two-day trial with the defendant acting pro se, the judge entered a final restraining order (FRO) in the plaintiff’s favor. The defendant appealed, and the Appellate Division affirmed.
In June 2007 the defendant moved before a different judge to vacate the FRO, asserting the unconstitutionality of the Prevention of Domestic Violence Act (the Act). The defendant argued that the Act converted what ought to be a criminal prosecution into a civil proceeding, thus depriving the parties of their right to a jury trial. Additionally, defendant argued that the Act denied him due process by failing to provide sufficient notice prior to the final hearing, by applying a preponderance standard instead of a clear-and-convincing standard, and by failing to permit discovery or a right to counsel. On June 18, 2008, the trial judge found the Act unconstitutional and vacated the FRO.
The Appellate Division reversed the trial court. The Appellate Division rejected the defendant’s argument that the Prevention of Domestic Violence Act violated his due process rights in providing for a preponderance of evidence standard. The Appellate Division noted that the trial judge wrongly ignored the precedent of Roe v. Roe, 253 N.J. Super. 418 (App. Div. 1992), which held that the Act was not required to impose a reasonable-doubt standard. Although Roe dealt with whether a reasonable-doubt standard is required, Roe found that that the preponderance standard, which was attacked in this case met constitutional muster. The court quoted Roe, wherein it held that the preponderance standard “better serves the purpose of the Act in protecting victims of domestic violence” because allegations of domestic violence are often “difficult to prove due to the[ir] private nature,” and there are “usually few, if any, eyewitnesses to marital discord or domestic violence.” The court in Roe recognized the “vindication of the Act’s important goals often depends upon the ability of a victim to obtain relief in situations where proof is scarce, parties’ contentions are in sharp contrast, and a judge may often be relegated to deciding the case based solely on credibility findings.”
The court next rejected the defendant’s argument that by allowing the seizure of a defendant’s firearms upon a finding of domestic violence, the Act permits a deprivation of an individual’s Second Amendment right to bear arms. The court noted that the Supreme Court has held that the Second Amendment is “a limitation only upon the power of Congress and the National government, and not upon that of the States.” Presser v. Illinois, 116 U.S. 252 (1886). The court held that the decision in District of Columbia v. Heller, 128 S. Ct. 2783 (2008) did not alter the view expressed in Presser and other decisions that the Second Amendment poses no limits on the states. Moreover, the court held that even assuming otherwise, Heller in no way holds that the individual rights guaranteed by the Second Amendment are absolute or unlimited. Rather, the Heller majority emphasized that the Heller should not be taken “to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id. The court in this case held that in light of the Heller majority’s express description of the limitations on its holding, it had no cause to assume that Heller in any way interferes with the Legislature’s declaration that a person found to have committed an act of domestic violence may be subjected to a weapons seizure. The court stated that absent a clear and binding announcement from the Supreme Court of the United States to the contrary, the Act’s prohibition on the possession of firearms by a person found to have committed domestic violence is a valid, appropriate and sensible limitation on an individual’s Second Amendment rights.
The court next rejected the defendant’s argument that the Act’s requirement that a final hearing be held within ten (10) days of the filing of the complaint deprived him of due process. The court held that this argument was “utterly without merit,” as the Supreme Court in H.E.S. v. J.C.S. 175 N.J. 309 (2003) already found that the ten (10) day provision comports with the requirements of due process. The court went on to find that in this case, where the final hearing did not take place until twenty-three (23) days after the complaint was filed, the defendant was provided with more than sufficient time to respond to the complaint. Moreover, the court held that the defendant was not prejudiced by his inability to depose plaintiff or obtain other discovery, as domestic violence actions are “summary actions,” a fact that inherently precludes the right to discovery.
The court next rejected the defendant’s argument that the Act violates due process rights by failing to guarantee a right to counsel. The court held that there was no cause to consider the right to counsel in this case, as the defendant in this case never sought the appointment of counsel prior to or during the adjudication of this domestic violence matter.
Finally, the court rejected the defendant’s argument that he was entitled to a trial by jury in this matter. The court held that the right to a jury trial in this State is constitutionally required only if expressly permitted by the Legislature or if the right existed at common law. The court noted that the Act does not grant a right to counsel. The court held that because the nature of the relief sought is an injunction—an equitable remedy— the right to a trial by jury would not attach.
The Appellate Division decided this case in 2009. The Supreme Court in 2010 “affirmed substantially for the reasons expressed in the thorough opinion by Judge Fisher.” The Supreme Court only sought to add that the issue raised by the defendant of whether the Second Amendment’s right to bear arms applies to the states is presently pending before the Supreme Court of the United States. They declined to reach that point because the right to possess firearms may be subject to reasonable limitations.
Observation: The right to counsel issue (not reached in this case) is interesting. In this case, the request for counsel was not made at trial – but let’s assume it was and the application was denied by the trial court. Let us further assume that the defendant later committed a violation of the FRO, resulting in his being prosecuted for contempt. If the underlying FRO is entered without defendant being afforded the right to counsel, will the State be prevented from seeking the defendant’s incarceration for a later contempt of the FRO? Stay tuned for further developments in this area, but practitioners representing defendants in contempt cases facing jail time may want to raise this issue if the FRO was granted when the defendant was unrepresented.
Colca v. Anson, 413 N.J. Super. 405 (App. Div. 2010)
Issue: May a trial court impose an obligation to pay child support in the absence of proof of changed circumstances following a prior order denying the same request?
Holding: Yes. The inherent equitable powers of the Family Court allow it to enter, revise, or alter support orders as circumstances may require during a child’s unemancipated life.
Discussion: The parties had two children during the course of their marriage, a son aged 25 and a daughter aged 23 at the time of this appeal. The parties were divorced in February 1993. In January 2005, the parties entered into a consent order granting the wife residential custody of the parties’ daughter and terminating the wife’s obligation to pay child support for that child. The husband was accordingly ordered to pay child support of $149.00 per week to the wife for the parties’ daughter. The consent order also apportioned college expenses, requiring the husband to pay 51% and the wife to pay 49%.
Later that year, in November 2005, a post-judgment order denied the husband’s request for child support and reapportioned the parties’ obligations for college expenses so that husband was required to pay 65% and the wife 35%. When the wife failed to remit her contribution of the children’s college expenses, the husband filed a motion to enforce litigant’s rights, as well as for an award of child support for the parties’ daughter. In addition to ordering the wife to make her required contribution for college expenses, the trial court also awarded a weekly child support of $161.00 per week to the husband, indicating that because he was supporting the parties’ daughter, he was entitled to receive financial assistance from the child’s mother. The trial judge relied on the husband’s Case Information Statement (CIS) and, noting that the wife failed to provide any financial documentation for herself, imputed annual income to her based on New Jersey State Labor information.
On appeal, the wife argued that the trial court abused its discretion in ordering child support as the husband failed to prove a change of circumstances as required by Lepis v. Lepis, 83 N.J. 139 (1980). The Appellate Division rejected the wife’s argument, citing a basic principle of American society is that parents are expected to support their children until emancipation. The court also emphasized the long-established principle that child support is for the benefit of the children and the right to receive support belongs to the children, rather than the custodial parent. The Appellate Division found that the wife’s argument — that the order which initially denied the husband’s request for support was effectively “immutable, forever relieving her of the obligation to support the parties’ daughter until and unless [the husband] could prove changed circumstances warranting modification of the order’s provisions” — was simply unsupported by law. It held that “the inherent equitable powers of the Family Part allow the court to enter, revise, or alter support orders” as circumstances require.
The Appellate Division further rejected the wife’s argument that the trial judge was required to consider the daughter’s inheritance when fixing support. The court held that “a child’s assets may not be used to fulfill a financially able parent’s support obligation.” In addition, the court declined to disturb the trial judge’s calculation of child support, finding no error with the use of statistics from the New Jersey Department of Labor.
Observation: Under normal circumstances, the party seeking to modify a support order has the burden to demonstrate changed circumstances. Here, because the husband botched up the application, the wife’s position was that the Lepis standard was not met and therefore the prior order could not be disturbed. The Appellate Division, recognizing that the facts on the ground have changed (i.e. the daughter is now living with the husband), effectively exercises its parens patrie authority to protect the child. Child support belongs to the child and the husband’s failure to perfect the claim cannot work to the child’s prejudice.
There are other aspects to this opinion, however, which raise questions. First, the court rejected the wife’s contention that the daughter’s inheritance should be considered when fixing support or contribution to college. However, the New Jersey Supreme Court in Newburgh v. Arrigo, 88 N.J. 529 (1982) held that “the financial resources of the child, including assets owned individually or held in custodianship or trust” are a factor to be considered when determining the parties’ contributions to the college expenses of their children. Id. at 545. Similarly, N.J.S.A. 2A:34-23(a)(7), requires the court to consider the “income, assets and earning ability of the child” in determining child support. The Appellate Division opinion does not address Newburgh or the statute and instead relies on cases which make clear that you cannot utilize the child’s assets in lieu of the parties’ incomes to pay child support or college. One point for practitioners to consider, when the parties commit themselves by agreement to pay for college and they don’t set aside any limitation based on the child’s finances, the court is not obligated to consider the child’s finances later as the parties have bound themselves to this obligation. Practitioners should therefore be careful in drafting agreements which address an obligation that may be years into the future.
Next, the Appellate Division upheld the trial judge’s decision to impute income based on the Wage Compendium provided by the New Jersey Department of Labor. However, it appears that the trial judge imputed income to the wife without first giving her an opportunity to provide the court with her financial documentation, such as her CIS, her pay stubs, or her most recent tax returns. Remember that until Lepis stage one is satisfied, the party contesting modification of a support order has no duty to provide updated financial information.
Finally, the Appellate Division affirmed the trial court’s award of counsel fees, despite the fact that the attorney failed to submit an Affidavit of Services as required by R. 4:42-9(8)(b), which provides that “all applications for the allowance of fees shall be supported by an affidavit of services addressing the factors enumerated by [Rule of Professional Conduct] 1.5.” The Appellate Division seems to suggest that such a deficiency may be overlooked so long as the trial court considers all “the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party.” Practitioners should not overly rely on this portion of the decision. My experience is that trial judges, more often than not, are unwilling to award counsel fees in the absence of an Affidavit of Services.
Parish v. Parish, 412 N.J. Super. 39 (App. Div. 2010)
Issue: Is a trial court permitted to enjoin a litigant from filing future enforcement motions absent a finding of the need to control frivolous and vexatious litigation?
Holding: No. Enjoining a litigant’s ability to present his claim to the court is not a remedy of first or even second resort. An injunction should be issued only after the judge: (1) makes a finding that past pleadings were frivolous or designed for an abusive purpose; (2) fully scrutinizes the newly filed pleadings and determines them to be repetitive and within the scope of the prescribed vexatious matters; and (3) has unsuccessfully attempted to abate the abuse by employing sanctions.
Discussion: The parties were divorced in July 2008, following a separation during which each of the parties obtained a temporary restraining order (TRO) against the other. Although no Final Restraining Orders (FRO) had been entered, in light of the parties’ history of domestic violence, their Marital Settlement Agreement (MSA) prohibited communication between the parties, except via email and only with regard to the children’s well being and parenting issues. The MSA also included detailed parenting time provisions and contained the parties’ agreement to continue with their parenting coordinator, who had been appointed to assist the parties in resolving disputes as to custody, parenting time, or any related issues affecting the parties’ three children. Shortly after the parties’ divorce, the wife filed a domestic violence complaint, as a result of which the court entered a TRO. The wife then denied the husband telephone contact with the children, claiming that any telephone calls would be a violation of the TRO. As a result, the husband filed a post-judgment motion to enforce his parenting time. Prior to the return date, the TRO against the husband was dismissed. The parties were then able to meet with the parenting coordinator. The husband accepted the coordinator’s recommendations, while the wife opted to wait for the court’s decision. The trial court found the issues of parenting time moot by virtue of the fact that the TRO was dismissed. The court further imposed preconditions on the filing of future motions, requiring that the parties engage in a four-way conference prior to litigating their issues in court. It also indicated that failure to engage in a four-way conference would result in an automatic dismissal of the motion.
The Appellate Division reversed the trial court’s ruling. In a 2-1 decision, the Panel held that the trial judge abused her discretion by imposing limitations on the ability of the parties’ to file motions without a finding of a need to control baseless litigation. The Panel found no evidence in the record to suggest that the parties were “excessively litigious or engaged in frivolous or harassing litigation.” Even if that were the case, the Panel held that “[a]ny discretionary exercise of the extreme remedy of enjoining or conditioning a litigant’s ability to present his or her claim to the court must be used sparingly; it is not a remedy of first or even second resort.” The Appellate Division then set forth new requirements that a trial court would have to satisfy in order to enjoin a litigant’s ability to file future motions:
(1) Making a finding that past pleadings were frivolous or designed for an abusive purpose;
(2) Fully scrutinizing the newly filed pleadings and determining them to be repetitive and within the scope of the proscribed vexatious matters; and
(3) Unsuccessfully attempting to abate the abuse by imposing sanctions such as those provided by R. 1:10-3 or R. 5:3-7.
In addition, the Appellate Division emphasized that any restraint entered must narrowly focus on the issues shown to warrant restraint.
Observation: Practitioners should not be in favor of any decision that makes it easy for the doors of the courthouse to be closed to litigants. In this case, the majority gets it right by making clear that this is a disfavored practice and it should only be employed in limited circumstances. While the family court is burdened by motion practice, it cannot avoid its obligation to make decisions by barring parties from coming to court in the first place.
Segal v. Lynch, 413 N.J. Super. 171 (App. Div.),
certif. denied, 203 N.J. 96 (2010)
Issue: Is there a cognizable cause of action for the tort of intentional infliction of emotional distress when a parent intentionally alienates a child from the natural bond and affection that should exist with the other parent?
Holding: No, except in certain cases where the conduct is so extreme and so outrageous as to go beyond all possible bounds of decency as to be regarded as atrocious and utterly intolerable in a civilized community. For example, when one parent falsely accuses the other of sexually abusing the child or where one parent unlawfully abducts the child. In such cases, the aggrieved parent may proceed with a suit for money damages for intentional infliction of emotional distress.
Discussion: Absent these extreme scenarios, mere allegations of parental alienation will not give rise to a cause of action for damages for intentional infliction of emotional distress. This ruling does not suggest that emotional distress does not occur in the garden variety parental alienation case—rather it is based on the Court exercising its parens patriae powers to balance the right of a parent to sue versus the potential harm to the child that a lawsuit will occasion. Specifically, the Court expressed concern over the deposition of the child, psychological examinations of the child, as well as having extended family members and other confidents being brought in as witnesses. In order to avoid the potential harm to the child, the cause of action will not be permitted to proceed unless the extreme and outrageous conduct as set forth above can be demonstrated. The Court observed that the overarching interest in these suits is not the best interest of the child—but the goal to obtain money damages.
The Court made clear that when these claims are raised they should be brought in the Family Part (like a Tevis claim), not in the Law Division as was done here. As stated by the Appellate Division, “the Family Part has both the expertise and the power to correct abuses by one parent against the other, while shielding the children from the type of emotional injury that is inextricably linked to a civil action for damages.” If the facts pled permit the prosecution of an intentional infliction of emotional distress, the Family Court judge must appoint a Guardian ad Litem for the child who will represent the child; independently evaluate the merits of the claims; and advise whether it is in the child’s best interest to prosecute, dismiss, settle or try the case to finality.
Observation: If the object is to prevent harm to the child, how is a suit for damages distinguishable from an action to change custody alleging parental alienation? In the custody case, the child would undoubtedly be exposed to the same type of litigation that the Court was looking to shield by blocking a cause of action for damages. Inevitably in a parental alienation case, the child may be interviewed by the Court or an expert on:
1. What the mom or dad said;
2. When and how often mom or dad said it;
3. Who else was present when they said it;
4. How did the child feel when mom or dad said it; etc.
In addition, psychological examinations and interrogation of other witnesses (teachers, counselors, school mates, extended family members, and other confidents) will surely follow. So if in a parental alienation case a parent brings suit for change of custody coupled with a claim for damages under the tort of intentional infliction of emotional distress, why should the parent be prevented from seeking monetary relief merely because he or she cannot allege unlawful abduction or false allegation of child sexual abuse?
As undesirable as the Appellate Division may be, the trial court decision was worse. The trial court dismissed the suit under the Heart Balm Act. N.J.S.A. 2A:23-1, et. seq. The Heart Balm Act abolished the common law right to seek money damages for alienation of affection, adultery, breach of contract to marry, and actions generally predicated on the loss of a conjugal relationship. Clearly, an action based on interference with a parent’s relationship with a child has nothing to do with the Heart Balm Act. Indeed, a suit based on the parental alienation of a child is unrelated to loss of the conjugal society and services of a spouse or significant other.
Palombi v. Palombi, 414 N.J. Super. 274 (App. Div. 2010)
Issue: Does a trial court’s discretion in denying oral argument turn solely on the subject matter of the motion?
Holding: No. When it is evident from the record and the motion papers that oral argument would be both unnecessary and unproductive, the court may exercise its discretion to deny oral argument even if the motion concerns a substantive issue.
Discussion: The husband appealed a series of six post-judgment orders related to child custody, support, and alimony by the Family Part in Morris County. The parties’ Judgment of Divorce (“JOD”), entered in April 2007, stated that custody of the parties’ child was not at issue as the child was eighteen (18) years old at the time. The court, however, declined to emancipate the child, and required the wife to pay child support as she was still a high school senior and resided with the husband. The JOD also required the husband to pay alimony. Between May and November 2008, the parties took turns filing post-judgment motions, seeking, among other requests for relief, transfer of custody, termination of child support, termination of alimony, college expenses, and emancipation. In each order, the court explained its reasons for denial of oral argument. The court’s initial order indicated that “the parties’ submissions were inconclusive” on the financial issues and that the parties failed to raise significant substantive issues in their moving papers. The next order denied oral argument on the grounds that the wife, as the moving party, failed to request oral argument and that the husband failed to submit any opposition. The court’s subsequent order stated that no oral argument was granted because no significant issues were raised due to the “insufficiency of both applications.” In another order, the court denied oral arguments “because the issues were readily resolved by reference to the record, oral argument would not have advanced the court’s understanding of the parties’ positions, and because the husband requested oral argument in his certification rather than in his notice of motion.” The husband appealed the court’s numerous orders, arguing that significant and opposing substantive and factual issues were raised by the parties and that the court’s failure to grant oral argument violated the provisions of R. 5:5-4(a).
Pursuant to R. 5:5-4(a), “the court shall ordinarily grant requests for oral argument on substantive and non-routine discovery motions and ordinarily deny requests for oral argument on calendar and routine discovery motions.” The Appellate Division rejected the husband’s argument and held that the trial court did not abuse its discretion when choosing to decide the parties’ numerous motions on the papers. While the Appellate Division reiterated that oral argument is required when significant substantive issues are raised, it also indicated that the Rule permits a trial court to exercise its discretion in denying requests for oral argument. The opinion stated that the “inquiry does not end because the nature of an issue presented can be labeled as pertaining to a substantive issue or because the parties do not agree on all facts. Other circumstances, such as the sufficiency of the supporting facts alleged are also relevant to the exercise of discretion.”
Under the present circumstances, the Appellate Division found that any kind of oral argument would be superfluous and unnecessary in light of numerous deficiencies in the parties’ motions. While several of the motions could be considered substantive in nature, those motions failed to comply with the mandatory requirements set forth by the Rules of Court. For instance, one of the trial court’s orders dealt with the husband’s request to terminate alimony based upon changed circumstances and the wife’s cross-motion for increases in alimony and child support. Both motions were subject to the requirements set forth in R. 5:5-4(a), which requires the submission of both a current and prior Case Information Statement (“CIS”). Neither party complied with the requirement, preventing the trial court from effectively assessing all the facts necessary in order to make a determination of the issues presented by the parties. The Appellate Division characterized the deficiency as evidentiary and deemed it incurable at oral argument. On another occasion, the husband filed a motion for reconsideration of a prior order, but then failed to satisfy the standard set forth in R. 4:49-2, which requires the moving party to provide the court with any matters or controlling decisions, which he believes the court has overlooked or as to which it has erred. The husband’s motion for reconsideration failed to meet the threshold requirement for reconsideration and the Appellate Division noted that this was not a defect that could be cured at oral argument.
The court indicated that additional advocacy before the trial judge would not cure any of the defects in the parties’ respective motions. The court concluded that, “if it appears from the record and the motion papers that oral argument in such cases would be both unnecessary and unproductive, the court may exercise its discretion to deny oral argument even if the motion can be labeled as concerning a ‘substantive’ issue.”
Observation: Clearly, R. 5:5-4(a) which provides that parties are entitled to oral argument when they raise issues that could be deemed “substantive” is not absolute. This case makes clear that even motions which address substantive issues will not receive oral argument where the papers are defective and the application will fail (albeit on procedural grounds). If a litigant’s motion papers are deficient and fail to satisfy the mandatory requirements of the Rules, oral argument will not cure those deficiencies.
The fear of course is that those Family Courts that have regularly denied oral argument (in violation of the Rules) will now latch onto this opinion to justify the routine denial of this right. See Santiso v. Santiso, WL3418277 (App. Div. 2010). This case does not sanction the routine denial of oral argument. Rather, it is a clarion call for practitioners to ensure that their papers are complete and understand that oral argument is not a replacement for defective papers.
Tannen v. Tannen, 416 N.J. Super. 248 (App. Div. 2010),
certif. granted, ___ N.J. ___ (2011)
Issue: When a divorcing party is the beneficiary of a discretionary trust, may a Family Part judge impute income from that trust for the purposes of determining alimony and child support?
Holding: No. Where the party’s beneficial interest in the trust cannot be considered an asset held or controlled by that party, it is improper to impute income from the trust in determining an alimony and child support obligation.
Discussion: During the course of the parties’ 18-year marriage, the wife’s parents established an irrevocable trust (“the Trust”) with the wife as the sole beneficiary and the wife and her parents as co-trustees. The Trust corpus included the home wherein the parties resided mortgage free, commercial property and over $1.1 million in stocks and mutual funds. The Trust paid the annual real estate taxes on the home (where the parties lived rent free), half the annual cost of a housekeeper, as well as capital improvements on the home. The Trust also paid for the parties’ children’s private school tuition for two years. The trust generated $124,000.00 per year in income.
Prior to the commencement of trial, the Family Part judge ordered the husband to file a third-party complaint against the Trust. The trial judge then determined that “[d]ivorcing spouses have a fiduciary duty toward each other[,]” and that the wife had a fiduciary duty to her husband to seek income under the terms of the Trust. Her failure to do so, the trial judge reasoned, constituted a breach of her fiduciary duty. Accordingly, the trial judge held that income from the Trust was treatable as income to the wife for the purpose of determining alimony and child support. The trial judge relied mostly on the Restatement (Third) of Trusts in reaching his determination, which states that benefits from a trust must first be considered before an alimony obligation is determined.
The Appellate Division disagreed with the trial court’s assessment of the issue. The panel held that while public policy requires divorcing spouses to deal fairly with each other and not dissipate assets, that obligation is not the equivalent of a fiduciary duty. The court held that “no reported decision in this State has ever characterized each party’s obligation to the other in a divorce proceeding as a ‘fiduciary duty,’ the essence of which is to ‘act primarily for another’s benefit’” (citing Black’s Law Dictionary, 563 (5th ed. 1979)).
The Appellate Division then examined the issue of whether the income available to the wife from the Trust could be considered for support purposes. Citing Aronson v. Aronson, 245 N.J. Super. 354, 364-65 (App. Div. 1991), in which the Appellate Division held that “[s]o long as the spouse has the ability to tap the income source . . . whether he or she actually obtains the cash in hand is inconsequential,” the court noted that the answer is not dependent on actual receipt of the funds, but rather access to them. The court reviewed the specific language of the Trust, as well as the testimony of the wife’s father, who indicated that his intention in settling the Trust was that the wife would not be able to compel distributions nor that the husband would be relieved of his obligations to support the wife or the children. The court also acknowledged that the Family Part relied extensively on the Restatement (Third) of Trusts, but declined to do the same. The court indicated that no court in the State of New Jersey (other than the Tax Court) acknowledged any provision of the third edition of the Restatement and “[a]s a court of intermediate appellate jurisdiction, we do not presume to adopt the Restatement (Third) of Trusts as the law of this state and apply its provisions to the facts of this case.” Accordingly, the court concluded that the wife’s “beneficial interest in [the Trust] was not an ‘asset held by’ her” and that the trial court improperly imputed income from the Trust for the purpose of determining the husband’s alimony obligation.
The court, therefore, remanded the matter for purposes of fixing an appropriate alimony and child support award. In its decision, however, the court warned that the trial judge should take note of the “historical record of payments made by [the Trust]” on the wife’s behalf in determining the wife’s actual needs. The court indicated that failing to take these payments into consideration “would clearly result in a windfall to [the wife] and be entirely inequitable to [the husband].” The issue of child support was also remanded due to the trial judge’s incorrect deviation from the Child Support Guidelines. The trial judge deviated from the Guidelines to reflect that the wife did not pay any mortgage or real estate taxes because the Trust paid these costs. The judge, however, overlooked a provision of the Guidelines, which indicates that the “fact that a family does not incur a specific expense in a consumption category is not a basis for a deviation from the child support guidelines.”
Observation: 1. The Appellate Division held that a wife’s beneficial interest in a trust where she alone could not compel distribution is not an asset held or controlled by her and therefore it is improper to impute income from the trust to the wife. However, the fact that the wife regularly received economic benefits from the trust during the marriage makes this decision troubling. If income is not imputed from this trust – then trusts become the new bulletproof device to shield income in matrimonial matters.
2. The Appellate Division says that the case turned on the terms of the trust and the intentions of the settler (i.e. the wife’s father), that the spouse not be relieved of his obligations to support his wife or the children. Yet, the trust did not act in accordance with these stated intentions during the marriage.
3. In examining the marital lifestyle, the question is often raised – how far do we need to go back to evaluate lifestyle? There is no hard and fast rule but Weishaus v. Weishaus, 360 N.J. Super. 281 (App. Div. 2003) aff’d in part, 180 N.J. 131 (2004) suggested that at least 3 years of financial data must be considered. Now the Appellate Division makes clear that the period is not fixed and should be based on the circumstances of the marriage. In this case, there was no claim that the lifestyle had significantly changed over the last few years of the marriage, making a 2 year review not improper.
4. The trial court refused to consider a savings component for the wife in view of the assets and income of the trust. The Appellate Division disapproved this decision (with no further comment on the savings issue).
5. After turning a blind eye to the income being generated by the trust, the Appellate Division held that the court should not turn a blind eye to the fact that the trust permitted the parties to live in the home rent free, paid the taxes and improvements and paid one-half of the housekeeper. Translation: although trust income will not be imputed to the wife – the court is effectively saying that expenses paid by the trust should be taken out of the wife’s budget. Isn’t this a back door method of imputing income to the wife?
6. While on the one hand, the Appellate Division says we should not turn a blind eye to expenses paid by the trust, the trust’s payment of various shelter expenses did not warrant deviation from the child support guidelines. The Court stated: “The fact that a family does not incur a specific expense in a consumption category is not a basis for a deviation from the child support guidelines.” Here, however, because of the trust there was no mortgage, no rent, no property taxes, no capital improvements in the shelter budget. Is the payment of utilities alone sufficient for there to be no deviation from shelter costs in the child support guidelines calculus?
7. The husband (and so too the marital estate) had benefitted from the wife’s trust during the marriage. The court was not willing to permit the husband to continue to reap those benefits now that the marital partnership was over and as apparently the husband had the financial capacity to continue the marital lifestyle. Query whether the outcome would have been the same had the trust been funded (not by the wife’s father) by the wife or an asset acquired during the marriage – or if the husband was not successful.
On January 7, 2011, the Supreme Court accepted Certification as to the issue: under the circumstances of this case, is it proper to impute income to the wife based on her beneficial interest in a discretionary trust for purposes of determining the husband’s alimony and child support obligations. Thus, the Supreme Court will have the final say in Tannen.
Van Horn v. Van Horn, 415 N.J. Super. 398 (App. Div. 2010)
Issue: Does an attorney’s violation of R. 5:3-5(b), which prohibits the taking of a mortgage to secure payment of attorney’s fees while the attorney represents the mortgagor-client, justify that attorney’s disqualification from further representation?
Holding: No. Disqualification of a litigant’s attorney is not an available remedy for violation of R. 5:3-5(b). A court may, at most, compel the invalidation of the note and mortgage, but may not discharge an attorney for violation of the Rule.
Discussion: The parties were divorced in 2005 after approximately twenty-five years of marriage. The Family Part of Warren County entered an Amended Judgment of Divorce (“JOD”) on December 9, 2005, addressing alimony, equitable distribution, child support, and other issues. On December 27, 2005, the husband’s attorney (“the Lawyer”) filed a motion to enforce litigant’s rights on her client’s behalf. While the motion was pending, the husband executed a $250,000.00 mortgage against his own home in favor of the Lawyer on February 13, 2006. The trial court entered several orders addressing the husband’s motion to enforce litigant’s rights, as well as the wife’s cross-motion. Both parties appealed the orders and the Lawyer remained the husband’s counsel of record. In the meantime, the husband filed another motion to enforce litigant’s rights on February 7, 2007 and the Wife filed another cross-motion, this time seeking an order disqualifying the Lawyer from further representing the husband in this case. The trial judge found the Lawyer in violation of R. 5:3-5(b) and granted the wife’s motion for disqualification.
In pertinent part, R. 5:3-5(b) states:
During the period of representation, an attorney shall not take or hold a security interest, mortgage, or other lien on the client’s property interests to assure payment of the fee. This Rule shall not, however, prohibit an attorney from taking a security interest in the property of a former client after the conclusion of the matter for which the attorney was retained, provided the requirements of R.P.C. 1.8(a) have been satisfied.
The trial court determined that the husband was not a former client, nor did R. 5:3-5(b) permit an attorney to take a security interest while representing a client if the client consents. As a result, the trial judge disqualified the Lawyer from the case.
On appeal, the husband presented several arguments before the court: (1) the wife lacked standing to seek the Lawyer’s disqualification, the wife’s motion was not a proper cross-motion, and the trial judge lacked jurisdiction to consider the cross-motion due to the pending appeal; (2) the Lawyer’s representation of him concluded upon the entry of the Amended JOD in December 2005, thereby categorizing him as a “former client;” and (3) the Rule does not require disqualification in the event of its violation.
The Appellate Division addressed the husband’s procedural concerns first. With respect to the husband’s argument that the wife’s cross-motion was procedurally defective in that it was not filed as a proper cross-motion, the Appellate Division agreed with the husband’s assessment, yet affirmed the trial judge’s consideration of it. At the time the wife filed her cross-motion, R. 1:6-3(b) permitted a responding party to file a cross-motion “only if it relates to the subject matter of the original motion.” The subject of the wife’s cross-motion, the disqualification of the Lawyer, certainly did not relate to the husband’s initial motion. The Appellate Division, however, held that the trial “judge had discretion to relax the rules” for the sake of judicial efficiency.
As to the issue of the trial judge’s jurisdiction over the cross-motion due to the pending appeal, the Appellate Division held that the trial judge properly exercised jurisdiction in that the “motion to disqualify was ‘functionally equivalent to a new action’ in that none of the issues pending on appeal at the time the cross-motion was made dealt with [the Lawyer] and the mortgage, . . . nor did it seek reconsideration of the judgment pending appeal” (citing Carlucci v. Carlucci, 265 N.J. Super. 333 (Ch. Div. 1993)).
The Appellate Division also rejected the husband’s argument that the wife lacked standing to request the Lawyer’s disqualification. The court held that “possessing a financial interest in the outcome of the litigation is ordinarily sufficient to confer standing.” It therefore held that since the wife retained an interest in the marital property, she maintained standing to challenge the Lawyer’s continued representation of the husband.
The court then turned to the husband’s substantive arguments. It addressed and rejected his argument that the Lawyer did not commit a violation of R. 5:3-5(b) as the attorney took an interest in the property after the conclusion of the matter for which she was retained. Pursuant to R. 1:11-3, an attorney’s representation of a client “shall terminate upon the expiration of the time for appeal from the final judgment or order entered therein.” This Rule must be read in conjunction with R. 2:4-1(a), which provides that appeals must be taken within forty-five days of their entry. Furthermore, R. 2:4-3(e) provides that the timely filing of a motion for reconsideration of an order tolls the time for filing an appeal. The Appellate Division held that, by virtue of these three Rules, the Lawyer continuously represented the husband until April 6, 2006, when the time to appeal expired and the matter for which she was retained concluded. The court, therefore, found that the Lawyer did, in fact, violate R. 5:3-5(b) in that the mortgage and note were executed in February 2006, well before her representation of her client ended.
Lastly, the court addressed the husband’s argument that a violation of R. 5:3-5(b) did not require disqualification. The Rule is in fact silent as to a remedy for its violation. The wife argued that the Lawyer also violated R.P.C. 1.8(a) because she entered into a business transaction with her client that created a conflict of interest. R.P.C. 1.8(a) prohibits an attorney from entering “into a business transaction with a client or knowingly acquiring an ownership, possessory, security, or other pecuniary interest adverse to a client” unless the terms of the transaction are fair and reasonable, the client is advised in writing and given an opportunity to seek independent legal counsel, and the client gives informed consent. In this case, there is no evidence to suggest that the Lawyer violated R.P.C. 1.8(a). Both the Lawyer and the husband certified that the husband was advised to seek independent counsel and that he did indeed do so.
The court then reiterated the accepted principle by New Jersey courts that disqualification is a harsh remedy that is to be used only in extraordinary circumstances. The Appellate Division found that no such circumstances existed in the present case. It emphasized that its decision did not turn on the fact that the Lawyer did not violate R.P.C. 1.8. In fact, it explicitly made clear that even if such a violation had occurred, that violation would not have made the court more prone to disqualifying the Lawyer. The court determined that “[a]t most, invalidation of the note and mortgage was an available remedy for a violation of R.P.C. 1.8” and further concluded that a violation of R. 5:3-5(b) “should not trigger a more severe sanction than that afforded a violation of R.P.C. 1.8.” The Appellate Division accordingly reversed the disqualification of the Lawyer.
Observation: Practitioners should be careful before obtaining mortgages from their former clients. Here trouble was raised from an unlikely corner…the other party. In most cases, trouble will be raised by the client claiming he did not have independent counsel or that he was somehow coerced into giving the mortgage. The better practice is to insist that clients comply with their retainer agreements and pay their bills at the time services are rendered. Now, I recognize that this is not always possible in our practice. However, according to the facts of this case, the client paid a $7,500.00 retainer and nothing else after incurring $250,000.00 in legal services. When the client fails or is unable to pay, practitioners should consider petitioning the court under R. 5:3-5(c) to mortgage or sell marital assets to fund the litigation. If the attorney is not being paid and there are no assets to mortgage and sell, the practitioner has to ask himself whether it is appropriate to remain in the case.
In the Matter of D.C. and D.C., Minors, 203 N.J. 545 (2010)
Issue: Is the best interests standard the applicable standard in determining a sibling’s request for visitation?
Holding: No. A sibling must establish by a preponderance of the evidence that visitation is necessary to avoid harm to the child. Application of the bests interests standard impinges on the fundamental rights of parents, either biological or adoptive, to raise their children as they see fit.
Discussion: The case involves five-year-old twins who were removed from their mother’s custody by the Division of Youth and Family Services (DYFS) and placed in foster care. The twins had siblings, a twenty-four-year-old sister and a thirteen-year-old brother. After the mother’s parental rights were terminated, the sister sought placement of the twins in her care. In the alternative, she sought reestablishment of visitation with the twins. DYFS opposed the sister’s application, citing the passage of time and its bonding evaluation of the twins with their foster mother. No bonding evaluation of the oldest sister, the teenager brother, and the twins ever took place.
The foster mother opposed visitation between the siblings. The trial court and the Appellate Division employing a best interest of the children standard denied the request for sibling visitation.
The Supreme Court reversed. In addressing sibling visitation post-adoption, the Court made clear that an adoptive family is accorded the same rights and protections as a biological family. To the extent that visitation by a third party may be compelled over the objections of a biological family, the same rule applies to an adoptive family. The Court reversed the Appellate Division’s decision on the grounds that the best interests standard was inappropriate when dealing with third-party visitation and that it violated the fundamental right of parents to family autonomy and impinged on their rights to raise their children as they see fit. Instead, the Court reinforced the standard established in Moriarty v. Brandt, 177 N.J. 84 (2003), when the Court dealt with grandparent visitation. Under Moriarty, grandparents were required to prove by a preponderance of the evidence that denial of the visitation they seek would result in harm to the child. Sibling visitation is now to be assessed applying the same standard.
Observation: Read literally, the Grandparent and Sibling Visitation Statute requires that the applicant seeking visitation bear the burden of proving “by a preponderance of the evidence that the granting of visitation is in the best interests of the child.” N.J.S.A. 9:2-7.1. However, practitioners need to be aware that this Statute has been effectively rewritten by the Court in order for it to pass constitutional muster. Specifically, our Supreme Court has held that parents (natural or adoptive) have a constitutional right to raise their children as they see fit without outside interference. While that right is not absolute, it can be trumped only when “harm to the child” can be established.
The unanimous decision by the Supreme Court regarding sibling visitation is line with the Court’s decision regarding grandparent visitation in Moriarty. The Court enforces the avoidance of harm standard as the polestar when dealing with sibling visitation. Siblings, like grandparents, have an extremely difficult legal burden to overcome. The Court makes clear that siblings will not be afforded visitation simply because of a biological connection.
S.D. v. M.J.R., 415 N.J. Super. 417 (App. Div. 2010)
Issue: May a defendant in a domestic violence matter use his or her cultural and/or religious beliefs as a defense or justification to domestic violence?
Holding: No. Religious belief cannot be accepted as a justification for an act made criminal by the law.
Discussion: This case arises out of an appeal resulting from the denial of a Final Restraining Order against the husband in a domestic violence matter in the Family Part in Hudson County. The parties were citizens of Morocco and of the Muslim faith. They were wed in an arranged marriage when the wife was seventeen years old. Approximately one month after the marriage, the parties moved to New Jersey. Shortly thereafter, the wife filed for a restraining order alleging assault, criminal restraint, sexual assault, criminal sexual contact, and harassment under the Prevention of Domestic Violence Act. The wife alleged that her husband forced her to engage in nonconsensual sex on several occasions, as well as caused her to sustain numerous injuries across various parts of her body.
The trial judge denied a final restraining order and dismissed the wife’s domestic violence action. While recognizing that the husband forced his wife to engage in sexual relations against her will, the court declined to find that the husband:
[H]ad a criminal desire to or intent to sexually assault or to sexually contact the [wife] when he did. The court believes that he was operating under his belief that it is, as the husband, his desire to have sex when and whether he wanted to, was something that was consistent with his practices and it was something that was not prohibited.
The trial judge further characterized the period in which all these acts occurred as a “bad patch” and the wife’s injuries as “not severe.” The trial judge further held that there was no reason for a restraining order because, as the husband had already obtained a religious divorce, the parties had no reason to be together again. The trial judge then, however, also acknowledged that the wife was expecting a child and that the parties would have to be involved in custody litigation.
The Appellate Division reversed the trial judge’s decision. The panel rejected the trial judge’s finding that sexual assault or criminal sexual contact occurred because the husband lacked the requisite criminal intent. Pursuant to the definition of sexual assault under N.J.S.A. 2C:14-2, the plaintiff does not have to prove force in addition to proving a lack of consent. The panel held that the wife in this case clearly established the absence of freely given permission. The Appellate Division further held that neither the sexual assault statute nor the criminal sexual contact statute specifies the mental state that must be demonstrated to establish the defendant’s criminal intent. Furthermore, N.J.S.A. 2C:2-2c(3) establishes the principle that criminal statutes that do not designate a specific mental state should be construed as requiring knowing conduct. The Appellate Division found that the husband’s conduct was “unquestionably knowing, regardless of his view that his religion permitted him to act as he did.”
The Appellate Division further rejected the notion that the husband could use his religious beliefs as a defense or justification for acts of domestic violence. Citing the United States Supreme Court case of Reynolds v. United States, 98 U.S. 145 (1878), the panel agreed that a person cannot be permitted to excuse any practices that are against the law because of his religious beliefs. The United States Supreme Court held that “[t]o permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” Reynolds at 166-67.
Finding that the trial judge was mistaken in declining to issue a final restraining order to protect the wife from further abuse, the Appellate Division remanded the case for the entry of such an order.
Observation: The defendant’s nonconsensual sexual intercourse with his wife was unquestionably knowing regardless of his view that his religion permitted him to act as he did. Commentators have observed that defendant’s beliefs are not necessarily in accord with Islamic law which prohibits spousal abuse and nonconsensual sexual relations. In the end, the issue was not what a particular religion allows or doesn’t allow – the issue is that defendant violated New Jersey law.
* I wish to thank my associate, Yevgeniya (Jenny) Roysen, Esq., for her assistance in the preparation of this article.
 It seems that in November 2005, the daughter was once again living with the husband.
 Both parties appealed the Amended JOD, which the Appellate Division affirmed in all respects in July 2008.
 R. 1:6-3(b) has since been amended, effective September 1, 2009, to allow cross-motions that are not relevant to the initial motion in the Family Part.