2011 was a banner year for reported family law decisions. The New Jersey Supreme Court alone decided five cases that made the top ten. With Justice Long’s retirement scheduled for March 2012, be on the lookout for Supreme Court cases with family law implications to be decided soon, including Segal v. Lynch, 207 N.J. 190 (2011) and Gere v. Louis, 205 N.J. 271 (2011).
The following are my selections for the ten most important reported cases decided in 2011. 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.
Tannen v. Tannen, 208 N.J. 409 (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 obligation.
Discussion: During the course of the parties’ eighteen-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 million in stocks and mutual funds. The Trust paid the annual real estate taxes on the parties’ home (where they 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, as the plaintiff, to file a third-party Complaint against the Trusts. 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 to be paid by the husband. 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 Appellate Division 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 alimony 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 Appellate Division 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 Appellate Division also acknowledged that the Family Part relied extensively on the Restatement (Third) of Trusts, but declined to do the same. The Appellate Division 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.” Instead, the Appellate Division deferred such a determination to the New Jersey Supreme Court. Accordingly, the Appellate Divison 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.
In accordance with this determination, the Appellate Division also concluded that the trial judge erred in compelling the husband to name the Trusts as third-party defendants. The Appellate Division, therefore, remanded the matter for purposes of fixing an appropriate alimony and child support award. In its decision, however, the court directed 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 trial 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.” Furthermore, the trial judge refused to supplement the Guidelines, as required if the combined family income exceeds $187,200.00, and failed to assess the reasonable needs of the children.
The Supreme Court granted a petition for certification and affirmed the decision of the Appellate Division “substantially for the reasons expressed in Judge Messano’s opinion.” See Tannen v. Tannen, 416 N.J. Super. 248 (App. Div. 2010). The Court did not issue a full opinion in this matter.
Observation: The question before the Superior Court was whether in a conflict between trust law or family law, which would prevail regarding the irrevocable trust. The NJSBA itself was split on the issue doing a brief from both perspectives. By merely affirming the decision of the Appellate Division without a separate opinion, the Supreme Court makes clear that trust law will prevail. In doing so, people will be encouraged to create trusts which pour out funds to the parties during marital bliss – and then hide under the umbrella of a trust device when the marriage turns sour. Have trusts now become the new bulletproof device to shield income in matrimonial matters? Especially in second marriages, is a trust a more effective tool to shield a pre-marital estate and its income than a Pre-Nuptial Agreement?
Although Tannen turns a blind eye to the income generated by the trust and makes clear you can’t get at it – it does make clear that courts must consider the historical payments made by the trust in determining the wife’s needs. Translation: Although you can’t invade the trust or drag them in as parties, there is a backdoor available to considering the trust income to the extent you can remove expenses traditionally paid by the trust from the wife’s budget. So for example in this case, there were effectively no shelter costs as a result of the parties living rent free in a home owned by the trust – this would effectively reduce the wife’s budget and thereby reduce any potential alimony award.
In examining the marital lifestyle, the question is often raised how far back do we need to go to evaluate lifestyle. There is no hard and fast rule. Weishaus v. Weishaus, 360 N.J. Super. 281 (App. Div. 2003), aff’d in part, 180 N.J. 131 (2004) suggested that at least three years of financial data must be considered. In Tannen, only two years of data was evaluated, but the Court held that because there was no claim that the lifestyle had significantly changed over the last few years of the marriage, a two-year review was not improper.
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). The Supreme Court now passes up the opportunity to weigh in on the controversial subject of the role of savings in determining an alimony award.
J.D. v. M.D.F., 207 N.J. 458 (2011)
Issue: Does the taking of flash photography outside the plaintiff’s home at two o’clock in the morning constitute harassment pursuant to the Prevention of Domestic Violence Act?
Holding: No. The record contained insufficient evidence to show that the defendant acted with the requisite intent to harass the plaintiff to support the entry of a Final Restraining Order (FRO).
Discussion: The plaintiff and the defendant were engaged in a long-term relationship from 1993 until 2006. They resided together and two children were born to them. Following their separation, the plaintiff remained in the home that the parties shared and the children resided with her. The parties’ relationship worsened and they were on the brink of a custody dispute when the events giving rise to this decision occurred.
According to the plaintiff, the incident in question occurred in September 2008, when the plaintiff and her new boyfriend observed the defendant outside of the plaintiff’s home at almost two o’clock in the morning taking flash photographs. The plaintiff alleged that her boyfriend noticed the defendant after he had randomly walked over to the window and pulled the curtain back. According to the plaintiff, as soon as her boyfriend pulled aside the curtain, the defendant realized he had been noticed and drove away. The plaintiff alleged that the defendant did this for the sole purpose of harassing her.
At the FRO hearing, the trial court repeatedly inquired of the plaintiff if there was “anything else” she thought the trial court should know. The plaintiff went on to describe multiple incidents of past history of domestic violence that were not identified in the Complaint. In response, the defendant indicated that he did not know that the plaintiff would be testifying to those previous events and that he was not prepared. He nevertheless proceeded.
With regard to the incident of the flash photography, the defendant testified that he had in fact taken pictures outside the plaintiff’s home at a quarter to two in the morning, but not with an intent to harass the plaintiff. Rather, defendant explained that he was compiling evidence that the plaintiff’s new boyfriend was staying at the residence in order to support a motion to transfer custody that he was in the process of filing. After admitting to this conduct, the trial court declined to hear further testimony from the defendant and did not allow him to question the new boyfriend. The trial court granted a FRO, holding that taking photographs in the middle of the night could not have any other effect but to annoy or alarm the plaintiff and therefore his behavior constituted harassment.
The Appellate Division affirmed the trial court, holding that the trial court properly found that the defendant had harassed the plaintiff within the meaning of the applicable statute, N.J.S.A. 2C:33-4c, and that the testimony about prior incidents that were not contained in the Complaint was properly admitted. The Appellate Division also rejected the defendant’s argument that he had been deprived of a full opportunity to present his case and question the boyfriend as a witness.
The Supreme Court reversed and remanded the matter for a rehearing. In so doing, the Court, citing to N.J.S.A. 2C:25-29b, held that “[a]lthough evidence offered by a putative victim may . . . suffice to meet the definition of harassment, courts must be careful not to overlook the statutory requirement that there be a finding that ‘relief is necessary to prevent further abuse.’ Merely concluding that plaintiff has described acts that qualify as harassment and omitting this added inquiry opens the door to potential abuse of the important purposes that the Act is designed to serve and threatens to ‘trivialize the plight of true victims’ in the process.”
The Court warned that not all offensive or bothersome behavior constitutes harassment. Nor are a plaintiff’s mere assertions that the conduct is harassing sufficient. Rather, the Court instructed that when addressing claims of harassment, it is the obligation of the trial courts to consider the testimony and weigh the allegations as against the statutory standards and the case law. The victim’s subjective reaction alone will not suffice.
The Court also concluded that the defendant had been deprived of his due process when the trial court did not permit him additional time to prepare as a result of the plaintiff’s new allegations and when it did not permit him to cross-examine the plaintiff’s boyfriend. The trial court should have ensured that the defendant was afforded an appropriate opportunity to be apprised of all the allegations against him and to prepare. The defendant’s assertion that he needed time to prepare to respond to the plaintiff’s allegations that were not originally listed in her Complaint was sufficient to raise the due process question for the trial court and it should have been granted.
Observation: The proverbial $64,000.00 question is: Why was the defendant taking pictures of plaintiff’s home at two o’clock in the morning? Was it to harass the plaintiff (the mother of his children) who was in the home with her boyfriend? Or was it to compile evidence that the defendant intended to use in furtherance of his impending custody case? Clearly, if you accept the latter explanation, there can be no intent to harass and – without intent, there can be no predicate act of harassment to support entry of a FRO under the Prevention of Domestic Violence Act.
Justice Hoens, in writing this decision for the Supreme Court, made very clear that a finding of harassment could not be sustained on the basis of plaintiff’s subjective views alone. It is often a fine line between the type of behavior that constitutes harassment and that which is only perceived as such by the plaintiff. Practitioners will recognize as all too common the fact pattern where a plaintiff testifying at a domestic violence hearing strays from the four corners of the Complaint and testifies to undisclosed past acts of abuse. This case makes clear that if a court intends to allow such testimony, it is effectively amending the Complaint which thereby entitles the defendant the opportunity to prepare and respond to the allegations. Failure to grant an adjournment in such matters is a denial of due process.
Practitioners must also be mindful of the two-prong test before entering a FRO. The first, was a predicate act of domestic violence established by a preponderance of the evidence. If satisfied, the second prong requires an inquiry into whether restraints are necessary to protect the plaintiff from harm. Here, the Court was suggesting that the predicate act of harassment was shaky at best. The Court seemed dubious about the need for a FRO even if it was harassment to drive by a home and take pictures at 2:00 a.m.
In this case, the defendant argued that harassment could not be found as he subsequently prevailed in municipal court against the same charge. However, the Court pointed out that due to the heightened burden of proof (beyond a reasonable doubt), the municipal court verdict was of no moment to the consideration of a domestic violence Complaint based on the same facts which is determined by a preponderance of the evidence standard.
Morgan v. Morgan, 205 N.J. 50 (2011)
Issue: In an out-of-state removal case, is the amount of time spent with the children the deciding factor in determining whether a parent has a true shared custody arrangement?
Holding: No. What is critical is each party’s responsibility for custodial functions, responsibilities normally reposed in the primary caretaker.
Discussion: The parties were married in 1992 and divorced in 2005. They had two children as a result of the marriage born in 1998 and 2001. As part of the Property Settlement Agreement (PSA), the parties shared legal custody of the minor children and the wife was designated as the parent of primary residence. The parenting time schedule provided that the husband would have the children on alternate weekends, with a mid-week overnight every week and a mid-week visit for dinner every week. Holidays would be alternated and each parent would have the children for one week of vacation during the school year and during the summer.
Following the divorce, the husband filed an application with the trial court seeking a re-determination of custody based on a substantial change in circumstances. He alleged that he spent more time with the children than the PSA provided and that he was involved in their school and extracurricular activities. The motion was filed in anticipation of the wife’s relocation to Massachusetts with the children. The husband alleged that the wife had a volatile personality, that the children led chaotic lives. The wife filed a cross-motion seeking permission to relocate to Massachusetts with the children in order to reside with her fiancé.
The trial court denied the husband’s request to re-determine custody, finding that no substantial change of circumstances had occurred. The judge concluded that the wife remained the parent of primary residence and that her application for relocation would therefore be decided based on the principles established in Baures v. Lewis, 167 N.J. 91 (2001). After conducting a plenary hearing in 2007, the trial judge denied the wife’s application for relocation. In so doing, the trial court relied on the opinions of non-testifying experts in characterizing the wife as “emotionally volatile.” The trial court also rejected the wife’s reasons for relocation because they were “not valid” and concluded that the husband’s relationship with his daughters could not “be fully sustained through a new visitation scheme,” and therefore the move would be inimical to the children’s interests.
In 2007, both parties appeal and in 2010, the Appellate Division reversed the decision of the trial court, permitting the wife to relocate. The Appellate Division concluded that the wife had clearly established a good faith reason for the move, and that there was insufficient evidence to support the husband’s claim that the move would harm the children.
In his appeal to the Supreme Court, the husband argued that the lower courts had erred in ruling that the parties did not share de facto custody of the children without holding a plenary hearing to address that subject. The issue of the husband’s custody status is crucial in a removal case. If the parties in fact shared custody, a removal motion would be reviewed as an application to change the custodial status. In that case, the standard applied would be determining what is in the children’s best interests. If the parties did not have a shared custody arrangement, then the removal application would be determined under Baures. Under Baures, the burden rests initially on the movant to make out a prima facie showing of (1) good faith for the move; and (2) the children will not suffer from the move. The movant is also to provide the court with a parenting time proposal. The Court describes this burden as “not a particularly onerous one.”
Based on the facts of the case, the Supreme Court rejected the husband’s argument that the parties exercised a de facto shared custody. The Court held that de facto shared custody does not arise out of numerous parenting times with a child. It is the nature of the interactions and not the quantity of interactions that is important.
The Court further held that the trial court erred in its Baures analysis and reversed the order denying the wife’s request for removal. According to the Supreme Court, the trial court failed to apply the good faith standard, did not recognize that that standard was satisfied by the wife’s reasons for the move, and permitted evidence of non-testifying experts to affect its judgment regarding the wife’s mental state. The Supreme Court ordered a full remand of the case in light of the fact that four years had elapsed since the evidence had first been presented to the trial court. Since that time, significant changes (including the breakup between the wife and her fiancé) had occurred that could have an impact on the outcome of the wife’s request for removal and that the trial court must take into account when making its determination.
Observation: This is probably Justice Long’s last opinion on removal. The opinion traces the history of the law from Cooper in 1984, to Holder in 1988, to Baures in 2001. All this time the statute, N.J.S.A. 9:2-2 wasn’t changed, but our law has. The mobility of our society coupled with technological advances that make interstate travel and communication relatively easy and inexpensive, have made it so.
Baures is the game changer regarding removal cases because it allows custodial parents to relocate with children if (1) there is a good faith reason to move; and (2) the children will not suffer from the move. The mere change in parenting time is not cause to bar the move. There is a big difference between the best interest standard and the Baures two-pronged test. So the battle is often what test applies—and that is dictated by the custodial arrangement. In a custody case, what is in a child’s best interest prevails. In a removal case, the parties’ interests take on importance/coupled with the best interests of the child.
The Supreme Court here made clear that shared custody is not based solely on the quantity of time a parent spends with a child. Shared physical custody, the Court held, must be analyzed in accordance with each party’s responsibilities and duties, with relevant considerations including whether the party prepares and plans the meals, bathes and dresses the children, provides medical care, arranges for social interaction among peers, arranges for alternative care, puts the children to bed at night and wakes them up in the morning, and disciplines the children. The husband in Morgan did not satisfy these criteria merely by seeing the children more often and being involved in their school and extracurricular activities.
The Court also made clear that no decision with regard to relocation should be made based on the review of a stale record, in this case, one that was over four years old. We have requirements in our Rules that matters before trial courts concerning children must be expedited. How does the Appellate Division address the fact that it took almost three years to resolve this appeal? That delay made this a pyrrhic victory for the wife as now the Supreme Court has ordered a new hearing due to the staleness of the record. Moreover, the children are now six years older than at the time the original motion to relocate was filed.
Practitioners should be mindful that a good faith reason to move is a subjective not objective standard. It isn’t for the trial court to determine whether the stated reason is right or wrong; or good or bad—it’s about merely ensuring that the movant is not looking to attenuate the non-custodial parent’s relationship with the child. Once the prima facie burden is met by the movant, it becomes the non-custodial parent’s burden to show that the child will suffer harm by the move (a particularly difficult standard to meet).
Sachau v. Sachau, 206 N.J. 1 (2011)
Issue: If the parties agree to delay sale of the marital home until the youngest child turns eighteen (18) – but take no action to actually sell the home until twenty-two (22) years later – what value is used to determine the husband’s interest in the home (the value at the time of sale or the value at the time of the triggering event twenty-two (22) years ago)?
Holding: The marital home should be valued as of the date of the actual sale, not as of the date of the triggering event unless otherwise agreed to by the parties.
Discussion: The parties were married in 1964 and divorced in 1979. As part of the parties’ divorce settlement agreement, the husband agreed to permit the wife to remain in the marital home until such time as the youngest child turned eighteen (18) and graduated from high school. At such time, the agreement required the house to be appraised and listed for sale.
The youngest child reached the age of eighteen (18) and graduated from high school in 1984, which triggered the sale provision of the settlement agreement. However, neither party took any action to place the house on the market or to enforce their rights under the judgment for the next twenty-two (22) years. The wife continued to live in the home and made payments until 2004 (presumably toward the husband’s interest in the home) to the husband at irregular intervals totaling $79,415.00. In 2005, the husband found himself in a difficult financial situation having to rely on charity and made an application to compel the sale of the marital home and a division of the proceeds in accordance with the parties’ judgment.
The trial judge ordered the sale of the marital home and directed that the wife receive credit for $79,415.00 in payments that she made to the husband over the course of the previous twenty-two (22) years. The Appellate Division remanded the case back to the trial court and held that the appropriate value of the home should be as of November 28, 1984, the date of the triggering event, in light of the fact that the parties’ judgment was silent as to the value which should be ascribed. The Appellate Division instructed the trial court to determine the value of the home in 1984, one-half of which would constitute the husband’s interest in the premises. On remand, the trial court determined that the value of the home was $120,000.00 and that the husband’s share based on that value plus interest was $144,915.62 and the wife’s was $417,472.64. The husband appealed this determination, and the Appellate Division affirmed, concluding that the distribution of the proceeds from the marital home conformed to the Appellate Division’s previous remand order.
The New Jersey Supreme Court reversed the decision of the Appellate Division. The Court held that the Appellate Division erred in its initial determination that if the trial court found there was no agreement regarding the value to be ascribed, that the property was to be valued as of the 1984 trigger date. The Court held that the panel incorrectly applied the principles set forth in Pacifico v. Pacifico, 190 N.J. 258 (2007). In Pacifico, the Supreme Court held that where the sale of a marital asset is to abide a future event, for example the emancipation of a child, and no alternative is provided, the market value as of the time of the triggering event is presumed.
Under the facts of Sachau, however, the Court held that this principle was inapplicable because it can only be understood in the context of a sale which actually takes place at the point of the happening of the trigger. The Court stated that “there is plainly no rationale for a presumption of value as of the trigger date if no sale occurs.” In Sachau, because there was no agreement to the contrary, and because the sale did not actually occur at the time of the triggering event, the house should have been valued as of the date of the sale.
Observation: The Supreme Court rectified a result that could have been detrimental to the husband. It seems only fair that the Court held that the value to be ascribed was to be the value at the date of sale, given that the wife enjoyed the use of the home for over twenty (20) years following the trigger event. If the wife had been permitted to ascribe value to the home as of 1984, she would be receiving a benefit disparate with that received by the husband, being that he had not actually been enjoying the benefit of his share of the house for all that time. The husband’s failure to act in a timely manner to enforce his rights under the judgment of divorce could have significantly impacted the proceeds that he was entitled to from the sale of the marital home. The important lesson here is that when there is a time governed event set forth in the agreement, advise your clients to follow it or potentially suffer the consequences.
This was the way many deals were structured in the early 1980s – that is the sale of the marital home would often abide the youngest child’s graduation from high school. Then came the savings and loan scandal and concern about leaving the party not occupying the home on the deed and mortgage and being unable to purchase a home of their own. As a result, this type of arrangement fell out of favor. Now comes the great recession of 2008, such that many homes are under water (i.e. the mortgage exceeds the fair market value). In this environment, deals are again being structured so that the home is maintained into the future. These deals rest on the hope that when the market improves, the parties will be able to sell the house without incurring a deficiency and impairing the credit of the parties. Be careful in drafting these agreements and ensure that your client takes action when the triggering event arises.
Div. of Youth & Family Servs. v. T.B., 207 N.J. 294 (2011)
Issue: Does a parent’s act of accidentally leaving her four-year-old child home alone, without proper supervision, rise to the level of gross negligence or recklessness such that the parent’s name must be included on the Child Abuse Registry?
Holding: No. The parent’s conduct did not constitute a failure to exercise a minimum degree of care and did not rise to the level of gross negligence or recklessness.
Discussion: The present case concerns a mother who accidentally left her four-year-old child home alone. The mother and her son lived with the child’s grandparents. The mother and son lived downstairs in a space with its own bedrooms, living room, bathroom, and kitchen. Yet, the entire house was accessible to the mother and child and the child moved freely between the downstairs and the upstairs of the house where his grandparents lived. The grandparents assisted the mother in caring for the child as the mother worked full-time and attended post-graduate courses. On the day of the incident in question, the mother and child returned home from spending a day together at approximately 7:00 p.m. The child had fallen asleep in the car on the way home so the mother immediately put him to bed. The mother observed her own mother’s car in the driveway and assumed she was sleeping because she had been ill and because she was always home on Sunday nights to prepare for work the next morning. Believing that her mother was home to take care of the child, the child’s mother left to meet a friend and was away for approximately two hours.
In the interim, the child woke up, discovered that he was home alone, and crossed the street to a neighbor’s home. The neighbor telephoned the police, who entered the home to find it empty. The mother returned at approximately 9:30 p.m. to find the police at the home. She explained that, although she did not expressly verify that the child’s grandmother was home, she assumed that she was home based on past experiences. The child’s grandparents also returned home by that time and confirmed the mother’s version of events, namely that the grandmother was always home on Sunday nights and that her absence from the home was unusual. The matter was referred to the Division of Youth and Family Services (DYFS) and a DYFS caseworker indicated that the case was at low-risk level and that no safety interventions were required.
Despite the caseworker’s report, DYFS substantiated an allegation of neglect against the mother based on inadequate supervision. The mother filed an appeal with the Office of Administrative Law. An Administrative Law Judge (ALJ) concluded that the mother made “an unfortunate mistake,” but that DYFS failed to show by a preponderance of the evidence that the child’s physical, mental, or emotional condition was impaired as a result of the mother’s failure to exercise a minimum degree of care pursuant to N.J.S.A. 9:6-8.21(c). The ALJ recommended the dismissal of the charges against the mother. Nevertheless, the DYFS Director issued a Final Decision rejecting the ALJ’s decision and reinstating DYFS’s finding, which substantiated child neglect. On appeal, the Appellate Division affirmed DYFS’s finding of neglect. The Appellate Division also rejected the mother’s challenges to her placement on the Child Abuse Registry. The Appellate Division concluded that the mother placed the child at substantial risk of harm, by failing to ensure that her parents were at home before leaving the house.
The Supreme Court reversed the decision of the Appellate Division, holding that although the mother was clearly negligent, her conduct did not rise to the level of gross negligence or recklessness. The Court held that N.J.S.A. 9:6-8.21(c)(4)(b) controls the adjudication of abuse and neglect cases and that the statute defines an “abused or neglected child” as one “whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care.” The mother in this case did not leave her four-year-old son home alone knowing that there would be no supervision. Instead, she relied on her past experiences from living with her parents to assume that her mother was home on a Sunday night, especially because her mother’s car was in the driveway at the time and she knew that her mother had been ill. The mother had no reason to believe that there was in fact no one home at the time. The Supreme Court noted that the mother should have verified that there was someone in the house at the time, but that her failure to do so did not constitute a failure to “exercise a minimum degree of care.” The Supreme Court therefore remanded the matter to DYFS for the removal of the mother’s name from the Child Abuse Registry.
Observation: The Supreme Court here clearly got it right. While the incident was unfortunate and could have certainly resulted in harm to the child, the facts of the case demonstrate that the mother had no intentions of leaving her child home unsupervised and that she in fact was under the impression that someone was home at the time. Where does the Court draw the line between gross negligence and mere negligence? The Supreme Court made it clear that no exact formula exists to determine when a child can be left at home because each case is so fact driven. The parent’s conduct needs to be evaluated against the specific risks of each case. Would the Court have removed the mother from the Child Abuse Registry (in this case) if the child suffered from a serious physical or mental condition?
This case involved a four-year-old child. The more problematic cases occur in older children when the question must be asked, is it abuse to leave a child home alone (age 14, age 16, etc.). In this case, the mother went out for a short period – but we know of parents who go away on vacation leaving unemancipated children alone (having the neighbors check in periodically). Does accessibility of the parent matter? Was contact information provided? Would the child be heard or seen? How long would it take the parent to return? We also are familiar with the term “latchkey kids” and understand that often times in this society, with two working parents, children are left alone. Would the time of day or type of weather matter? In the midst of a divorce/custody case, these situations face even greater scrutiny and practitioners should advise their clients against engaging in this risky behavior (whether or not it rises to the level of child abuse).
Botis v. Estate of Kudrick, 421 N.J. Super. 107 (App. Div. 2011)
Issue: Does the amendment to the Statute of Frauds passed January 18, 2010, which requires that palimony contracts be in writing and signed, apply retroactively to palimony claims filed prior to the date of the amendment?
Holding: No. The amendment to the Statute of Frauds is to be applied prospectively and does not affect any palimony action filed prior to the date of the amendment.
Discussion: The parties first met in 1954 and commenced a relationship in 1974, after the end of their respective marriages. They eventually moved in together and maintained a marriage-like relationship. In 1995, the parties jointly purchased a residence. Although the plaintiff’s name was originally on the deed, the title was eventually transferred to the decedent alone for income tax purposes. The plaintiff alleged that she became dependent on the decedent for financial support due to his superior financial position and that he, in turn, promised her that he would always take care of her and that he would provide for her in the event of his death.
The parties lived together for approximately thirty-two years, at which time the decedent became stricken with cancer. The plaintiff cared for him and tended to his needs. Shortly before the decedent’s death, the plaintiff learned that no provision had been made for her in his will. As a result, the plaintiff sought palimony and other related relief. The decedent’s estate argued that the the amendment to the Statute of Frauds, which required that palimony agreements must be in writing and signed by both parties in order to be enforceable, barred the plaintiff’s action.
The trial court determined that the amendment to the Statute of Frauds, codified as N.J.S.A. 25:1-5(h) applied prospectively for the following reasons: (1) language in the law indicated a legislative intent that its application be prospective; (2) courts have long favored prospective application of a statute; (3) since the plaintiff’s claim was filed long before the statute was enacted, the claim would not be barred by the amendment; (4) it has long been established in the State of New Jersey that there is a right to support that is based in the principles of contract, which may be either expressed or implied; (5) the legislature, without notice and an opportunity to cure, cannot extinguish these rights; and (6) the parties had no ability to comply with the recently enacted statute because the decedent is dead.
The Appellate Division affirmed the trial court’s decision, holding that “[a]bsent a clear indication of legislative intent, our courts have long followed a general rule of statutory construction that favors prospective application of statutes.” It further explained that a statute will be given retroactive effect only (1) where the legislature has declared such an intent; (2) when an amendment is curative; or (3) when the expectations of the parties so warrant.
Examining the first prong, the Appellate Division held that there is no indication of legislative intention favoring retroactive application. The law itself states that it “shall take effect immediately” and there is no language to suggest that it is meant to apply to claims already pending on the date of its enactment.
With respect to the second prong, the Appellate Division rejected the Estate’s argument that the amendment should be given retroactive effect as curative or ameliorative. Under the curative exception to prospective applicability, a new law is given retroactive effect if it is designed to carry out or explain the intent of the original statute and where it is meant to cure prior legislation, not prior case law. The Appellate Division held that, based on the legislative history, the amendment is intended to overturn recent palimony decisions, specifically Devaney v. L’Esperance, 195 N.J. 247 (2008), In re Estate of Roccamonte, 174 N.J. 381 (2002), and Kozlowski v. Kozlowski, 80 N.J. 378 (1979). The amendment was not intended to rectify or clarify statutory law. As a result, the Appellate Division held that a new statute will not be deemed curative simply because the legislative history of that statute reflects disapproval of a contractual provision previously found permissible by the courts.
As for the third prong with regard to the parties’ expectations, the Appellate Division held that the inquiry should be whether the parties could have expected and, therefore, complied with the conditions set forth in the amendment to the statute. The Appellate Division held that the parties’ reasonable expectations did not warrant retroactive application. The decedent died more than one year before the effective date of the statutory amendment, and the plaintiff filed her Complaint shortly after the decedent’s death and more than a year before the amendment. There is no way that the parties could have complied with the statute’s requirements. Moreover, at the time of the parties’ cohabitation, case law supported the principle that their agreement for support was enforceable without the need for a writing. The Appellate Division held that neither party could have reasonably anticipated the prerequisites to enforcement of a palimony promise during the time when they were in a position to create such a document.
Observation: The Appellate Division’s decision in Botis is very narrow in that it applies only to cases filed prior to January 18, 2010. The Appellate Division fails to address the implications of the amendment to the Statute of Frauds in cases filed after January 18, 2010. Specifically, the question now is what will become of palimony cases where there is no writing and the parties’ relationship began years ago but the claim for palimony is filed after January 18, 2010? My prediction is that the court will center its inquiry on the question of “when was the palimony contract formed.” If the palimony contract preceded the amendment to the Statute of Frauds, then I do not believe that the lack of a writing will bar the claim even though the action is not filed until after January 18, 2010 (stay tuned).
Keep in mind that in palimony cases there are alternate remedies that may be viable notwithstanding whether the amendment to the Statute of Frauds is deemed applicable in a specific case. Attorneys must not overlook these equitable remedies including partial performance, unjust enrichment, quasi-contract, constructive trust, implied contract, promissory estoppel, breach of the covenant of good faith and fair dealing, etc.
Villanova v. Innovative Investigations, Inc., 420 N.J. Super. 353 (App. Div. 2011)
Issue: Does the placement of a Global Positioning System (GPS) device in a person’s vehicle without the person’s knowledge constitute an invasion of privacy?
Holding: No. The placement of a GPS device in a person’s vehicle without his knowledge, but in the absence of evidence that he drove the vehicle into a private or secluded location that was out of public view and in which he had a legitimate expectation of privacy, does not constitute the tort of invasion of privacy.
Discussion: The plaintiff and his wife were married in 2000. In 2007, suspecting the plaintiff of infidelity, his wife hired the defendants to conduct surveillance on her husband. The defendants suggested that the wife purchase and install a GPS device on a family vehicle regularly driven by the plaintiff in order to track his movements. The wife purchased the device and placed it in the glove compartment of the husband’s vehicle for forty (40) days.
The plaintiff filed for divorce from his wife in 2008. He asserted a right of privacy violation against her in the divorce action and also added a similar claim against the defendants. The husband later dismissed his claim against the wife in the divorce action but preserved his claim against the defendants. The Family Part judge dismissed the claim against the defendants in the divorce action, but preserved the plaintiff’s right to assert a separate action against them in the Law Division. This decision is as a result of that Law Division action.
The wife acknowledged that she obtained reports over the Internet from the GPS provider regarding the movements of the vehicle. It was acknowledged that the husband was primary user of the vehicle.
The trial court granted summary judgment to the defendants, stating that the plaintiff failed to make a prima facie case of the tort of invasion of privacy. The Appellate Division affirmed the trial court’s findings. The right of privacy has been defined as the right of an individual to be protected from any wrongful intrusion into his or her private life which would outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities. The Appellate Division further held that one who intentionally intrudes, either physically or otherwise, upon the solitude or seclusion of another is subject to liability to the other for invasion of his of her privacy. Accordingly, a defendant is only liable if he or she intrudes into a private place.
In this case, the Appellate Division held that “there is nothing in this report that could support an inference that any surveillance of plaintiff extended into private or secluded locations that were out of public view and in which plaintiff had a legitimate expectation of privacy.” The Appellate Division relied on the decision of the United States Supreme Court in United States v. Knotts, 460 U.S. 276 (1983), when it held that “a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his [or her] movements from one place to another.” The Appellate Division therefore held that the plaintiff’s privacy was not intruded upon and that he failed to prove a tort of the invasion of privacy such that the defendants would be liable.
Observation: Although not a Family Part decision, the facts of Villanova v. Innovative Investigations, Inc. are applicable to family law practice. The Appellate Division effectively gave permission to a person to track his or her spouse’s movements so long as those movements are not in a private or secluded location. The Appellate Division suggested places where persons might operate a vehicle with an expectation of privacy (private parking garage, an impound yard, or stretch of a lonely beach). Practitioners should be careful, however, if and when advising their clients to employ such tactics. While this conduct may not be an invasion of privacy, such 24/7 monitoring of the movements of another could be violative of stalking and/or harassment statutes. It is likely that we have not heard the last on this issue from either the family courts or the Appellate Division.
S.Z. v. M.C., 417 N.J. Super. 622 (App. Div. 2011)
Issue: Does the Prevention of Domestic Violence Act afford protection to a victim from a temporary guest who resided at the plaintiff’s home for seven months and who did not reside in the home at the time of the alleged conduct?
Holding: Yes. A temporary guest who made unwelcomed sexual overtures constitutes a “household member” as defined by the Prevention of Domestic Violence Act.
Discussion: The plaintiff permitted the defendant, a bookkeeper for his business, to stay in the home that the plaintiff shared with his wife and three children from October 2008 until the end of April 2009. The plaintiff testified that in April 2009, the plaintiff came out of the shower to find the defendant on a ladder against the outside of the house, peering through the bathroom window. The plaintiff observed similar behavior by the defendant on a different occasion. The plaintiff testified that he did not have a dating relationship with the defendant. The plaintiff confronted the defendant and thereafter demanded that the defendant move out of the home and to return the keys to the plaintiff’s house and car. In February 2010, the plaintiff discovered a hidden camera in his car. It was later determined that the defendant had placed the device in the plaintiff’s car only several days prior. The plaintiff also testified that he spotted the defendant following him on two different occasions.
The trial court dismissed the plaintiff’s case for lack of jurisdiction, holding that the term “household member” does not include a person who is an invited social guest, even where there is a period of multiple months involved. The term “household member,” the trial court held, refers to a permanent status, as opposed to a transient one. The trial court therefore held that the plaintiff was not entitled to protection under the Prevention of Domestic Violence Act.
The Appellate Division reversed the finding of the trial court, holding that, although the relationship between the parties was not a traditional familial, romantic, or sexual relationship, the defendant was encompassed by the term “household member.” The Appellate Division relied on a prior case dealing with college roommates, in which it was held that a college dorm suitemate is a household member because the qualities and characteristics of their relationship place the plaintiff in a more susceptible position for abusive and controlling behavior. Moreover, the Appellate Division held that because the plaintiff and defendant in this case resided together under the same roof for seven months, the plaintiff was afforded protection under the Act.
Observation: Jurisdictionally, N.J.S.A. 2C:25-19(d) defines a victim of domestic violence to include any person who is eighteen (18) years of age or older, or who is an emancipated minor, and who has been subjected to domestic violence by a spouse, former spouse or any present or former household member. Victims of domestic violence can also include a person who has or anticipates having a child in common with the abuser and where one of the parties is pregnant or where there has been a dating relationship. Without clear jurisdictional boundaries, the Act can become trivialized such that Superior Courts are overrun with disorderly persons cases properly allocable to the municipal court. Under the original statute, it was required that the victim “cohabited” with the defendant. The revision to the Act replaced the “cohabited” language with “present or former household member” in defining persons covered under the Act. With this decision, the Appellate Division expands the definition of a household member. The Appellate Division makes clear that the fact that the plaintiff was heterosexual and the defendant may have been gay does not affect jurisdiction. The parties do not require a sexual relationship in order to be in a susceptible position for abuse and controlling behavior. This analysis makes sense from the standpoint of addressing harassment from an unrequited lover.
When defining “household member” for purposes of the Act, what other individuals will the Act cover? Will a live-in babysitter or housekeeper be considered a household member for the purposes of the Act? There is compelling legal authority against expanding the definition of “household member” in this fashion. See Jutchenko v. Jutchenko, 283 N.J. Super. 17 (App. Div. 1995) (brothers who lived together during childhood were not former household members); Smith v. Moore, 298 N.J. Super. 121 (App. Div. 1997) (sharing of vacation living quarters on weekends during the summer did not establish former household members); and Sisco v. Sisco, 297 N.J. Super. 245 (Ch. Div. 1996) (adult daughter is not former household member with father with whom she has not resided for more than fifteen (15) years).
Van Brunt v. Van Brunt, 419 N.J. Super. 327 (Ch. Div. 2010)∗
Issue #1: Does a court order that requires an unemancipated college student to produce proof of college attendance, course credits, and grades to his/her parents as a condition for ongoing child support and college contribution violate the student’s right to privacy under the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C.A. • 1232(g), also commonly referred to as the “Buckley Amendment?”
Holding #1: No. The child cannot use FERPA as a sword to block a parent’s right to verify her ongoing collegiate status while simultaneously asserting that she is unemancipated and entitled to mandatory child support and college contribution.
Issue #2: Who is responsible to provide the non-custodial parent who pays child support and/or college costs with ongoing proof of college attendance/course credits/grades, the student, the custodial parent or both?
Holding #2: Both. The student has an ongoing obligation to provide documentation if she wishes to remain unemancipated. The custodial parent has an independent obligation to obtain educational information from the unemancipated student and to provide this information to the non-custodial parent.
Discussion: The parties divorced in 2008. They had two children born of the marriage. Pursuant to the parties’ Settlement Agreement, the parties shared joint legal custody of the children, with the wife designated as the parent of primary residence. The Agreement also provided that the wife would consult with the husband on matters of importance relating to the children’s education. The husband was obligated to pay child support to the wife, along with contribution towards medical insurance and college costs. Although the Agreement included a stipulation that a child would remain unemancipated if a child continued to attend four years of college, it was silent on the issue of the husband’s access to educational records.
As of 2010, the parties’ eldest daughter was twenty-one (21) years of age and attending college purportedly as a full-time student. The husband filed a motion to compel the wife to disclose the child’s college records or to otherwise emancipate her. The trial court ordered the wife to submit verification of the daughter’s full-time collegiate status including a list of courses taken and credits as verified by the college; copies of report cards; and verification of school enrollment. The wife failed to do so. The husband filed a second motion for emancipation. The wife then filed a response, providing some but not all documentation ordered by the trial court. The trial court then denied the husband’s application for emancipation, but directed the wife to provide complete documentation.
Upon the wife’s failure to comply with the order, the husband filed a third motion seeking enforcement. The wife responded that she was unable to provide the required documentation because the parties’ daughter refused to provide her with the documentation, and that the wife was unable to obtain the information herself due to the daughter’s privacy rights. The wife argued that it was the daughter’s responsibility to supply the husband with documentation verifying ongoing collegiate status and performance.
The wife relied on FERPA which is a 1974 federal law which provides that students over eighteen (18) have certain privacy rights relative to their educational records. Colleges generally cannot release such records to third persons without a student’s written authorization.
The trial court rejected the wife’s argument, holding that the daughter’s performance in college is directly related to her emancipation status. That status ties directly into the husband’s ongoing obligation to pay child support and other financial contributions, including college costs. The court therefore held that the husband has a right to receive ongoing documentation relative to the wife’s collegiate status. The court emphasized that it was not requiring the disclosure of the child’s entire collegiate records. Only enrollment, course credits, and grades.
The court held while the daughter may assert that she has FERPA privacy rights relative to her college records, she cannot use FERPA as a sword to block her father’s right to verify her ongoing collegiate status while simultaneously asserting that she is unemancipated and entitled to mandatory child support and college contribution from her father. The daughter, the trial judge held, has an ongoing obligation to provide the husband with verification of her collegiate status.
The wife also has an independent obligation to obtain the court-ordered educational information from the daughter and to provide this information to the husband. Since she is receiving child support from the husband, she has a reciprocal ongoing duty to provide information to concerning their daughter’s full-time collegiate status. The wife cannot argue that the daughter refuses to cooperate. If the wife has no control of the daughter and cannot obtain simple verifying information from her regarding her college status, then the daughter is clearly outside of the sphere of her parents’ influence and should therefore be emancipated for child support and college contribution purposes.
Observation: This is a very different application of the “sphere of influence” principle, which heretofore has resulted in having children over the age of majority declared unemancipated (even children over eighteen (18) and not in school). Judge Jones never rules that FERPA isn’t applicable—only that if a child wants to rely upon those rights in defiance of a parent—the child then can no longer be said to be within her parents’ sphere of influence.
This case received national attention and rightly so. Keep in mind that the majority of states do not compel parents to pay for a child’s education beyond high school. In this way, New Jersey law and FERPA stand in contrast.
Keep in mind that “education records” under FERPA include much more than college attendance, course credits, and grades. It includes medical treatment records, law enforcement records, etc. In this case, the court stressed it was compelling production of only a narrow list of records germane to the issue of whether the child remained unemancipated under New Jersey law. The decision was not appealed and therefore is not binding precedent by trial courts outside of Ocean County.
Dudas v. Dudas, 423 N.J. Super. 69 (Ch. Div. 2011)
Issue: May a court consider post-Complaint increases in income in determining the amount of alimony which a supporting spouse must pay incident to the divorce?
Holding: Yes. The supporting spouse’s pre-Complaint income history as well as the post-Complaint income history are relevant in determining the alimony obligation.
Discussion: The husband and wife were married for twenty-six (26) years. The husband was the primary financial provider, while the wife was principally a homemaker and caretaker for the children. The wife periodically took on part-time employment which never exceeded $18,000.00 in any year. The husband’s income rose steadily from approximately $14,000.00 in the beginning of the marriage to the mid-$40,000.00 range, with a one-year high of $59,000.00 by the end of the marriage. During the course of the marriage, the husband never earned more than $60,000.00 per year. At one point during the marriage, the wife planned to pursue a career in psychology, but ultimately discontinued her college attendance in order to invest her time and resources into helping her husband build his business.
The parties ultimately separated and the wife filed a Complaint for Divorce in 2008. Between the date of filing and the divorce trial in 2011, the husband’s income sharply increased to $64,000.00 in 2009, and then to $76,000.00 in 2010. The husband’s post-marriage earnings, therefore, were significantly higher than his earnings during the marriage. As a result, the wife, in seeking alimony, argued that the husband’s post-Complaint earnings should be considered as part of the analysis. In contrast, the husband urged the court to limit the alimony analysis only to the income he earned during the marriage up to the separation and the start of the litigation.
Judge Jones held that the husband’s post-Complaint income history was relevant to the alimony analysis. In considering the statutory factors as set forth in N.J.S.A. 2A:34-23(b), Judge Jones focused on the actual need and ability to pay; the standard of living established during the marriage; the earning capacities of the parties; and two additional factors which he deemed relevant – marginal cost estimation and momentum of the marriage.
In analyzing each of these factors, Judge Jones concluded that the Legislature could not have intended for an alimony analysis to be capped at the level of income previously earned by the parties during the marriage. Consideration of post-Complaint income would be required in order to determine a party’s present needs and the supporting spouse’s ability to pay. Furthermore, the supporting spouse’s post-Complaint income may be a potential funding source to enable both parties to maintain the prior marital lifestyle. In addition, Judge Jones reasoned that a consideration of the earning capacities of the parties “inherently includes consideration of one’s earning potential even beyond that actually earned during the marriage.”
In analyzing the additional factors, Judge Jones reasoned that the concept of “marginal cost estimation,” which focuses on the extra cost of supporting an additional person in a family unit, is relevant to the alimony analysis. Judge Jones reasoned that when two parties separate and one household becomes two, there is insufficient money available for either party to maintain the same marital lifestyle that they were enjoying when they were sharing costs. The supporting spouse’s additional funds in the form of post-Complaint earnings, therefore, are relevant for the purposes of determining alimony as they are a viable source to help bring both parties closer to the financial lifestyle they enjoyed during the marriage. Judge Jones held that ignoring the supporting spouse’s income earned after the marriage would only lead to a scenario whereby there will not be enough money available for both parties to separately approach the same lifestyle they had during the marriage. The supporting spouse would have access to the post-Complaint earnings to subsidize his lifestyle and maintain himself at a level equal to or greater than the marital lifestyle, while the other spouse would not be able to do the same, thereby leading to what Judge Jones characterized as an inequitable result.
Judge Jones also held that the concept of “momentum of the marriage” is a relevant factor in the alimony analysis. “Momentum of the marriage” recognizes that a spouse who maintains the home while the other party’s career advances should share in the rewards of their combined efforts. In this case, the husband was better able to concentrate on developing his skills and expertise in his field during the marriage because his wife was running the household. Judge Jones reasoned that “‘the fruits of the parties’ joint efforts during their partnership have now ripened into a proven ability by [husband] to earn substantially higher income than he ever earned during the marriage.” Judge Jones held that the husband’s ability to earn his post-Complaint level of income was directly attributable to the hard work and combined efforts of both parties. Moreover, he held that the wife’s sacrifice of her own career goals in psychology in order to support the advancement of her husband’s career was a compelling equitable consideration.
Observation: While I agree that the lifestyle of the marriage is measured during the period of coverture, I am not aware of any cases limiting ability to pay by the level of income earned prior to the Complaint. I agree with Judge Jones to the extent he is saying that it is proper to look at current income (even when it is greater than the income earned during the marriage) in order to meet the marital lifestyle established during the marriage. I also accept what he calls “marginal cost estimation” or put another way, because two persons cannot live as affordably when separated, it costs more to fund the marital lifestyle for both parties after separation.
Where I part company with Judge Jones is his use of the theory of the “momentum of the marriage” in this case. Here, the parties could not maintain the marital lifestyle after the separation, even with the husband’s greater income. I see the marital momentum argument appropriate in cases where a higher lifestyle than that which existed during the marriage is sought when the ability to fund that lifestyle materializes post-Complaint as a result of efforts during the marriage.