2013 will be remembered as the year when the State of New Jersey recognized same-sex marriage. In Garden State Equality v. Dow, the Court ended the journey for marriage equality that started with Lewis v. Harris in 2006.
Following up on 2012, Judge Marie E. Lihotz of the Appellate Division continued to distinguish herself as the seminal writer of family law opinions in New Jersey. Among other decisions, Judge Lihotz authored Gnall v. Gnall, Minkowitz v. Israeli, Reese v. Weis, and D.N. v. K.M., all top ten cases.
In 2013, the courts continued to interpret the 2010 palimony statute and its application to couples who commenced living together years prior to the law’s enactment. In addition, as alternative dispute resolution continued to play a larger role in the practice, important decisions governing arbitration and mediation were handed down.
The following are my selections for the ten most important reported cases decided in 2013. This presentation will review each opinion and the impact that it will have upon our practice. Practice tips will also be discussed as to how matrimonial attorneys can best utilize these decisions.
Garden State Equality v. Dow, ___ N.J. Super. ___ (Law Div. 2013),
2013 WL 5397372, 216 N.J. 1 (2013)
Issue: Do the guarantees of equal protection contained in the New Jersey Constitution require that civil marriage be extended to same-sex couples in New Jersey?
Holding: Yes. New Jersey’s denial of marriage to same-sex couples violates Article 1, Paragraph of the New Jersey Constitution because the plaintiffs and all same-sex couples cannot access many federal marital benefits in civil unions as a result of United States v. Windsor, 570 U.S. 12 (2013).
Discussion: The New Jersey Supreme Court decided in Lewis v. Harris, 108 N.J. 415 (2006), that New Jersey’s laws, which restricted civil marriage to one man and one woman, violated equal protection guarantees of the New Jersey Constitution. The Court held New Jersey’s statutory scheme directly denied benefits and privileges that are awarded to heterosexual couples, and therefore it violated equal protection of laws. The Court ordered the New Jersey Legislature, “must either amend the marriage statute to include same-sex couples or create a parallel statutory structure, which will provide for, on equal terms, the right and benefits enjoyed and burden and obligations borne by married couples.” The New Jersey Legislature chose a parallel statutory scheme and passed the Civil Union Act (“The Act”), which became effective February 19, 2007. The Act denied same-sex couples the designation of marriage. As part of the Act, the Legislature created the Civil Union Review Commission to study the effectiveness of civil unions for same-sex couples and evaluate its success. N.J.S.A. 37:1-36
The Lewis litigants filed a motion in aid of litigant’s rights with the New Jersey Supreme Court asserting that the Act failed to fulfill the Court’s mandate and arguing that the Court should extend civil marriage to same-sex couples. The plaintiffs relied upon the Civil Union Review Commission’s final report, which found that separate categorization in civil unions for same-sex couples encourages unequal treatment. The motion was denied without prejudice.
On June 29, 2011, the plaintiffs, a lesbian, gay bisexual, and transgender rights organization called Garden State Equality, six same-sex couples, and their children filed a four-count complaint. Several of the couples were also in Lewis but the litigants were not exactly identical. The plaintiffs alleged that the denial of the legal status of marriage caused concrete harm and resulted in persistent and widespread lack of recognition of their rights in civic and commercial dealings. The complaint asserted four constitutional claims: (1) denial of equal protection under Article 1, Paragraph 1 of the New Jersey Constitution; (2) a denial of the fundamental right to marry under Article 1, Paragraph 1 of the New Jersey Constitution; (3) denial of equal protection under the Fourteenth Amendment of the United States Constitution, in violation of 42 U.S.C.A.§ 1983; and (4) denial of substantive due process under the Fourteenth Amendment to the United States Constitution in Violation of 42 U.S.C.A.§ 1983. The State opposed the relief, arguing that the deprivations caused to New Jersey civil union couples derived from actions of the federal government and not from actions of the State, and that the Civil Union Act provided equal rights and benefits to same-sex couples. On August 10, 2011, the State filed a motion to dismiss the complaint. The Honorable Linda Feinberg, A.J.S.C. (ret.) granted the motion on counts two, three, and four. The plaintiffs filed a motion for reconsideration on count three, which was granted on March 7, 2012.
While the parties were in discovery, the Supreme Court of the United States (SCOTUS) invalidated Section 3 of the Defense of Marriage Act (DOMA) on June 26, 2013 in United States v. Windsor, 570 U.S. 12 (2013). SCOTUS found that section 3 of DOMA violated due process and equal protection guarantees of the Fifth Amendment of the United States Constitution. Windsor held that federal agencies had to treat married same-sex couples in the same manner as heterosexual couples in the administration of federal programs.
The plaintiffs filed a motion for Summary Judgment and argued Windsor required New Jersey same-sex couples the right to marry because same-sex couples were not being afforded same rights and benefits as required by Lewis. They asked the court to compel the State to allow same-sex couples to enter into civil marriages in New Jersey. Additionally, the plaintiffs argued that summary judgment be granted in favor of them on count three, which alleged Fourteenth Amendment equal rights violation. The plaintiffs alleged the status assigned to the relationship of a civil union was inferior and caused social stigma, and the result was an equal rights violation. The plaintiffs further argued that due to their inability to access federal benefits after Windsor, the decision to keep a parallel structure no longer had a rational basis.
The State argued the plaintiffs’ motion was not ripe for adjudication because the extent to which civil union partners in New Jersey would have access to federal benefits was unknown. The State argued civil union partners were already entitled to federal benefits as a result of the Windsor decision and that the State had not taken action to violate the Lewis mandate. The State argued the injury to the parties arise from federal agencies incorrect application of Windsor, which exclude civil union partners from benefits. The State asserted there was no state action, a required element for an equal protection violation, and that there was a rational basis for the distinction between a civil union and marriages for same-sex couples. The State finally argued that it was premature to grant summary judgment when there was a need for more factual discovery, and the court should consider the far-reaching policy consequences before granting it.
The court heard oral argument and invited the parties to submit supplemental briefs. The plaintiffs argued that the government implemented Windsor while excluding couples in civil unions. The plaintiffs included certifications of four Garden State members who were federal employees with civil union partners who were harmed by the exclusion. The State maintained the matter should be deferred to a later date and further argued that there were several bills in Congress to extend benefits to couples in civil unions.
As a result of Windsor, the State argued the plaintiffs’ claims were not ripe due all the policy and regulation changes. The State explained there was no clear position from the federal government as to whether the federal benefits will be extended to civil union couples. The court found the plaintiffs’ claims were ripe for adjudication, especially since there were several federal agencies that have determined how they will implement changes in law effectuated by Windsor. As a result, the plaintiffs’ are currently ineligible for benefits, and the court maintained it does not have to defer its decision while the implementation of Windsor is in flux. The court also found the State’s argument that there is currently proposed legislation in Congress that would extend federal marital benefits to civil union couples is without merit. The court explained if such an argument were to be accepted, every constitutional challenge would be rendered untenable and deflected by challenges of proposed future remedial legislation. The court argued that would be fatal to any enforcement of constitutional protections and cannot be countenanced.
The State briefly questioned the plaintiff’s standing, and the court stated it was satisfied that the plaintiffs demonstrated a sufficient stake in the outcome in the present motion in seeking eligibility for federal benefits. The court noted Garden State Equality provided affidavits from four of its members attesting they are harmed by their inability to obtain federal benefits.
The State argued the harm imposed upon the plaintiffs was imposed by the federal government and not by the state. The court questioned if the mandate from Windsor, which resulted in several federal agencies refusing to grant the same civil rights to civil union partners renders the State liable for the resulting harm. The court noted during oral argument for the Motion to Dismiss the Complaint, Judge Feinberg explained that state action could be shown by alleging a deprivation, “caused by the exercise of some right or privilege created by the state or by a rule of conduct imposed by the state or by a person for whom the state is responsible…if you build an infrastructure in which the result is a denial of benefits, that’s state action.” The court stated the analysis was persuasive in the present situation where the state created the label of a same-sex civil union in lieu of marriage. The court stated that the distinction constituted a state action with concrete effects. The result of the label rendered New Jersey civil union partners ineligible for federal benefits. The State argued Windsor condemned only federal action and articulated that domestic relations are within the province of each state. The State explained that New Jersey already deemed civil unions to be equal to marriage. The State argued that providing federal benefits is the sole responsibility of the federal government and deprivation of the benefits does not constitute state action. The plaintiffs argued the parallel structure of a distinct label, which now mattered in the context of federal benefits, counts as state action. The plaintiffs further argued the Windsor decision rendered the legislative action from the Lewis decision impermissible state action since the holding in Lewis mandated same-sex couples be afforded the same rights and benefits as married heterosexual couples.
The court noted that there is no previous case on point where the federal government applies a statutory scheme that makes state action unconstitutional. The court explained the State created a parallel marriage/civil union statutory scheme specifically sanctioned by Lewis, and this was a clear action by the State. The court further explained, that it is not just the federal government acting alone that deprives plaintiffs of federal marriage benefits, the federal government incorporates a state domestic relations structure to make its determinations, and the parallel structure results in those denial of benefits. The court held the creation of a status that affects whether same-sex couples can access federal benefits constitutes action on the part of the State, and the actions are cognizable under both the United States and New Jersey Constitutions.
The court explained that the current New Jersey statutory structure challenged by plaintiffs was in place before Windsor was decided, but it cannot ignore that the classification system which “directly affects the availability of federal marriage benefits to those couples.” The court further explained the parallel legal structure created by the New Jersey Legislature no longer provides equal access to benefits to same-sex couples, which violated the Lewis mandate and the New Jersey Constitution’s equal protection guarantee. The court held that New Jersey’s denial of marriage to same-sex couples violates the New Jersey Constitution because the plaintiffs and all same-sex couples cannot access many federal marital benefits in civil unions. The court granted the plaintiffs’ motion for summary judgment and ordered the State to permit any and all same-sex couples to marry in New Jersey.
The court entered final judgment in favor of the plaintiffs on count one and dismissed count three as moot on September 27, 2013. The court ordered that the order take effect on October 21, 2013. The State filed an Appeal on September 30, 2013.
A stay was filed by the State on October 1, 2013. On October 7, 2013, the State requested direct certification to the New Jersey Supreme Court. The Superior Court denied the request for a stay on October 10, 2013, and the State filed an emergent Appeal with the Appellant Division. On October 11, 2013, the New Jersey Supreme Court granted direct certification and took jurisdiction of the stay motion.
The Court denied the State’s motion for a stay stating it could not overcome the reality that same-sex couples in civil unions are not treated equally under the law today. The Court stated that under Crowe v. DeGioia, 90 N.J. 126 (1982), the State has not shown a reasonable probability of success on its merits. Under Crowe, the State needed to demonstrate that: (1) relief is needed to prevent irreparable harm; (2) the applicant’s claim rests on settled law and has a reasonable probability of succeeding on the merits; and (3) balancing the “relative hardships to the parties reveals that greater harm would occur if a stay is not granted than if it were.” The Court noted the public interest must be taken into consideration when the case presents an issue of significant public importance.
The Court found that the State failed to explain how it will be irreparably harmed by the lower court’s decision. The Court did not find the State demonstrated a probability of success on any of its arguments. When the Court balanced the hardships of the plaintiffs, it found that the plaintiffs and their children were denied federal benefits. The Court held that Lewis guaranteed equal treatment under the law to same-sex couples and the constitutional guarantee was not being met. The Court found no interest in depriving New Jersey residents of their constitutional right of equal protection while the appeal process unfolds and held that additional arguments will be heard on January 2014. The State withdrew its appeal on October 21, 2013, resulting in the trial court’s decision becoming settled law.
Observation: Now that we have same-sex marriage, issues will undoubtedly arise concerning retroactivity. For example, will couples who previously entered into civil unions be able to go back and file amended federal income tax returns so as to file under the status “married filing jointly.” As the federal government did not previously and does not now provide marriage benefits to civil union partners, this is unlikely to be allowed. There is a possibility that New Jersey could enact legislation to give retroactive recognition to civil union partners as being married which could then allow such persons to attempt the filing of amended federal income tax returns.
Currently, we have both civil unions and same-sex marriages in New Jersey. Therefore, it is necessary for civil union partners to formally convert their civil union to a marriage in order to share in the federal benefits guaranteed by Windsor. These benefits not only include the right to file joint income tax returns, but also the right to tax-free transfers incident to divorce as permitted under U.S. v. Davis.
Gnall v. Gnall, 432 N.J. Super. 129 (App. Div. 2013)
Issue: Is it appropriate to deny permanent alimony and to award limited duration alimony based upon the parties’ marriage of 15 years?
Holding: No. It was reversible error to conclude that a marriage must be 25 to 30 years duration to sustain an award of permanent alimony. There is no per se rule that permanent alimony is unwarranted unless a specific anniversary milestone is reached.
Discussion: The parties were married on June 5, 1993 and have three children ages 14, 13 and 11. In 2008, the plaintiff filed for divorce. Prior to the marriage, the plaintiff/wife received a Bachelor’s Degree in electrical engineering and worked full-time as an engineer for IBM. She also received a Master’s Degree in computer science. At the time of the marriage, plaintiff was employed as a software programmer and systems analyst for Goldman Sachs earning approximately $62,000.00 per year. The plaintiff continued employment through the years and her income increased to $115,048.00 in 1997. By 1999, while pregnant with the parties’ second child, the plaintiff, with the defendant/husband’s assent, stopped working outside the home to care for the children. The third child was born in 2002.
By the time trial commenced in 2009, both parties were 42 years old. At trial, the plaintiff argued her programming skills were obsolete, and she needed to be totally retrained, and she hoped to pursue a career as a math teacher to coincide with the children’s school day to minimize child care costs. The plaintiff underwent skull-based neurosurgery to remove a mass in November 2006 resulting in nerve damage. However, the plaintiff stated she did not believe her medical conditions impeded her ability to resume employment.
Both the plaintiff and the defendant presented expert testimony addressing the plaintiff’s employment prospects. The defendant’s expert concluded that within two to three years of working, she would be able to earn a salary in excess of $115,000.00 per year.
The plaintiff’s expert believed that upon the plaintiff’s return to the computer field, she could earn a salary of $56,000.00 per year.
The defendant was a CPA employed as Chief Financial Officer for the America Financial Group of Deutsche Bank. He received an annual salary, coupled with a cash bonus each February following the close of the year. His total compensation grew from $510,000.00 in 2005, to $2,100,000.00 in 2010, increasing steadily each year.
The trial judge concluded the parties enjoyed an upper middle class lifestyle and fixed the needs of plaintiff and the three children at $18,000.00 per month. Additionally, the trial court found that the parties’ 15 year marriage was “not short term.” However, the trial court considered the “relatively young” age of the parties, their good health and education, and concluded that, “the parties were not married long enough and are not old enough for defendant to be responsible to maintain that lifestyle permanently for plaintiff.” The judge also rejected an award of rehabilitative alimony. The trial court imputed $65,000.00 per year in income to the plaintiff and awarded her with 11 years of limited duration alimony at $18,000.00 per month.
The plaintiff appealed and asserted that this was a permanent alimony case. The Appellate Division made clear that when alimony is requested, the court is to examine the 13 statutory factors under N.J.S.A. 2A:34-23(b) and the law compels judges to weigh all of these statutory factors to determine whether alimony is appropriate. Specifically, the court is first to determine whether permanent alimony is appropriate. Only after the court determines that permanent alimony is not warranted does the court then examine whether it is a limited duration alimony case. Limited duration alimony is reserved for “shorter term marriages where permanent or rehabilitative alimony would be inappropriate or inapplicable.” The trial court had not followed this approach.
The Appellate Division rejected the trial court’s bright line rule that permanent alimony is solely reserved for long-term marriages of 25 to 30 years duration. The Court explained that the length of the marriage and duration of alimony cannot be calculated in some mathematical formula because to do so would be to disregard public policy that supports the continuation of economic support after the marriage. Writing for the Appellate Division, Judge Lihotz stated, “we do not intend to draw specific lines delineating ‘short-term’ and ‘long-term’ marriages in an effort to define those cases warranting only limited duration rather than permanent alimony.” The appellate court noted that the dependent spouse’s age alone cannot be used to conclude permanent alimony is unnecessary – the trial court has to consider all facts regarding the marriage. The Appellate Division observed that in addition to the 12 stated factors under the statute, this case gave rise to other factors for consideration (which is the 13th and catch-all factor). These other factors include the duration and cause of the claimed economic dependence; sacrifices made to assure the non-dependent spouse’s financial success; whether the dependent spouse’s return to full-time employment causes disruption to the needs of the children; and the nature and extent of the dependent spouse’s predicted financial independence, measured against the non-dependent spouse’s continued ability to provide financial assistance.
The Appellate Division observed that the plaintiff could never earn enough to satisfy her monthly budget of $18,000.00, which represented the marital standard of living. Furthermore, for more than two-thirds of the marriage, the plaintiff functioned as the primary caretaker for the children and will have primary responsibility for the children going forward. The parenting time schedule (alternate weekends and dinner on Wednesday) permits the defendant to continue his professional endeavors free of daily child rearing concerns.
The Appellate Division reversed the award of limited duration alimony and the matter was remanded for an evaluation of an award of permanent alimony.
Observation: Judge Lihotz has drawn criticism from alimony reform groups for this opinion. Those groups want a specific formula for determining the duration of alimony based on the length of the marriage. That is not our law.
Judge Lihotz has drawn criticism from some family law commentators claiming that she has established a bright line rule that a 15 year marriage is entitled to permanent alimony. That analysis represents a misread of this opinion. Judge Lihotz specifically eschewed any bright line or per se analysis based on duration of the marriage or age of the parties. Indeed, there is no bright line between long-term or short-term marriages and its impact on the alimony calculus. There is an alimony statute with 13 factors and these factors must be analyzed based on each unique marital partnership “as warranted by the circumstances of the parties and the nature of the case.”
Gnall is a repudiation of the efforts by some to create a cookie cutter approach to the practice of family law. Let us be mindful that the reason why divorce is in the Chancery Division is because courts of equity are required to do what is fair and equitable.
For those arguing for certainty and uniformity in our alimony laws, may I suggest that fairness has an even more important place in that calculus. Doing what is fair and equitable may mean that under one set of facts a 15 year marriage will result in an award of permanent alimony, while another 15 year marriage will not. That reality should not be troubling to anyone. For example, take the facts in Gnall and change the reason the wife left the workforce from caring for children to having no children and wanting to sit at home and enjoy the good life. Or let us assume that the wife was earning comparable income to the husband and had only left the workforce for a brief period before the divorce. Certainly, we can agree that such a 15 year marriage would not result in a permanent alimony award. The uniqueness of each case does indeed produce different results even assuming marriages of the same duration.
J.B. v. W.B., 215 N.J. 305 (2013)
Issue: Under what circumstances can a party seek modification of a Property Settlement Agreement to allow for the creation of a special needs trust for the benefit of an unemanicipated disabled adult child of the marriage?
Holding: A parent seeking to modify a negotiated agreement for the support of a disabled child through the establishment of a special needs trust must present a specific plan and demonstrate how the proposed trust will benefit the disabled child.
Discussion: J.B., the plaintiff/father, and W.B., the defendant/mother, were married on October 19, 1985. Two children were born of this marriage: A.B. on March 11, 1988, and M.B. on July 30, 1991. A.B. is autistic. The parties divorced on October 10, 2002. The Judgment of Divorce was modified to incorporate the parties’ Property Settlement Agreement (PSA) by Consent Order on October 12, 2005. The PSA provides for J.B. to pay W.B. the sum of $50,000.00 per year in child support for A.B. J.B. also provides $2.5 million in life insurance for A.B.’s benefit. In the PSA, the parties recognized that A.B. will never be emancipated, and it provided that, “plaintiff shall pay for all unreimbursed and uncovered medical, dental, hospital, surgical, psychiatric, psychological, special education.” The parties did not make specific arrangements for the payment of A.B.’s post-high school education.
In 2009, A.B. at the age 21 finished his education at a state-funded special needs school and began attending a school for persons with special needs in Connecticut. The plaintiff filed a motion requesting that the court among other items: establish a Special Needs Trust to fund A.B.’s educational and living expenses; eliminate any child support obligation to defendant for the benefit of A.B., based upon recent enrollment of A.B. in a full-time residential facility; and determine the financial contributions of the parties towards A.B.’s education expenses on a proportional basis.
The plaintiff asserted that A.B. is not financially prepared for the time when the plaintiff will have less income and will have fewer available resources. The plaintiff also claims that A.B. will be ineligible for certain governmental benefits, including Supplemental Security Income (SSI) and Medicaid, if the child support payments are not paid into a special needs trust. The defendant stated she did not object to the formation of a special needs trust. She did object to the termination of direct payment of child support to her before A.B. became eligible for government benefits and programs.
The trial court denied the plaintiff’s motion to establish a special needs trust and found the plaintiff failed to show a change in circumstances warranting relief from the terms of the PSA. The court stated the parties knew A.B. was not going to be emancipated, and the plaintiff was aware he would always pay at least $50,000.00 per year in child support for A.B.
The plaintiff filed an appeal of the trial court’s denial of his motion to redirect his support obligation into a special needs trust and the Appellate Division affirmed the trial court’s denial. The Appellate Division acknowledged the standard for modification of the PSA is change of circumstances, which the plaintiff failed to demonstrate to warrant modification. The panel determined the parties entered into the PSA with an understanding of A.B.’s future needs, and that the plaintiff would be responsible for the cost of A.B.’s special education. The Appellate Division noted the parties could have established a special needs trust in the PSA but chose not to do so but instead provided for the direct payment of child support to the defendant and made A.B. the beneficiary of a $2.5 million life insurance policy. The Appellate Division stated the facts presented failed to establish with certainty that A.B. would be eligible for government benefits if the plaintiff paid child support into a special needs trust.
The plaintiff filed a petition for certification, which was granted. The plaintiff asserted special needs planning is available to special needs children regardless of their wealth, and he wishes to pay his child support into a special needs trust to make A.B. eligible for governmental benefits. The defendant argues the plaintiff is attempting to terminate rather than modify his obligation, and the parties had a full understanding of their child’s special needs when they created the PSA. The defendant further argued that A.B’s interests are protected by the enforcement of the PSA such that A.B. would not be relegated to government programs.
The Court explained this case presents a first opportunity to consider under what circumstances a parent may modify a child support obligation by establishing a special needs trust for a dependent child. The movant must present a specific plan and demonstrate how the proposed trust will benefit the disabled child. The Court explained a parent seeking to alter a negotiated agreement for financial support of a disabled child or seeking court approval of a plan to address deferred and unresolved issues concerning the support of a dependent disabled child, must present a specific plan and demonstrate how the proposed trust will benefit the disabled child. The Court explained that a family part judge must have a complete understanding of the current physical, psychological, educational, recreational needs of the dependent disabled child, and the costs to support those needs and the resources available. The Court further explained that if the plan relies upon government benefits, the party must explain how the plan relies upon that access. The Court held that the plaintiff met none of these requirements and the Appellate Division properly affirmed the order denying the plaintiff’s motion.
Observations: This case provides a tutorial for every family law practitioner having a case with a special needs child who may never become emancipated. It stresses that practitioners should address the issue of a special needs trust at the time of the divorce and not wait until the child reaches age 21.
Things to Remember:
1. When child support is paid into a special needs trust, these funds are not considered “available assets” for purposes of determining Medicaid and SSI eligibility.
2. When child support is paid directly to a parent this money is considered an asset of the child in the nature of unearned income and could disqualify the child from government benefits.
3. A special needs trust must provide that the state receive any amounts remaining in the trust upon the beneficiary/child’s death up to an amount equal to the assistance paid.
4. The trust must be solely for the benefit of the child.
5. The trust must supplement and not supplant government benefits, therefore, if it is used for food, clothing or shelter this will be treated as income to the child and may jeopardize government benefits.
6. The trust must be irrevocable.
The following example quoted by the Court is instructive: Without a special needs trust, if the child’s cost is $6,000.00 and child support is $5,000.00 Medicaid pays $1,000.00 – with a special needs trust Medicaid pays the entire $6,000.00 and the payment into the trust is used to supplement the child’s special needs not covered by Medicaid.
What was this case about? Is it about a father seeking to avoid or diminish his support obligations; or is this case about a mother seeking to benefit from her disabled child’s support? While it appears that the father lost for now, the Court provides a road map for how to bring this matter back before the Family Part. In essence, the Court is saying show me how this child will be benefitted by creating a special needs trust and if you can do so it will be granted. On the other hand, if the special needs trust is designed merely to get the money out of the mother’s control and no clear benefit is derived by the child, the application is likely to fail.
Willingboro Mall, Ltd. v. 240/242 Franklin Avenue, L.L.C.,
215 N.J. 242 (2013)
Issue: Does Rule 1:40-4(i) require a settlement agreement reached in mediation to be reduced to writing and signed at the time of mediation?
Holding: Yes. From this point forward, parties who reach agreement in mediation must put their agreement into writing and sign it for it to be enforceable.
Discussion: Owner of Willingboro Mall sold the property to Franklin L.L.C. and secured the sale with a promissory note and a mortgage. Willingboro Mall filed a foreclosure action on the mall when the money was allegedly not forthcoming, and Franklin denied default and sought dismissal of the complaint. The court directed the parties to mediation.
The mediation occurred at Franklin’s offices on November 6, 2007, with the attorneys for Willingboro and Franklin and Willingboro’s manager. Franklin’s attorney made an offer, which was orally accepted but never reduced to writing. Three days later, Franklin forwarded a letter to the court stating the matter was settled and set forth the terms of the settlement. Subsequently, Willingboro refused to accept the settlement, and Franklin filed a motion to enforce the settlement.
Franklin attached certifications from their attorney and the mediator revealing confidential communications made between the parties during the mediation. Willingboro filed an opposition requesting an evidentiary hearing. Attached to the opposition was a certification from their manager, who was present at the mediation. The manager’s certification revealed substantive details from the mediation. The trial court ordered discovery and scheduled a hearing to determine whether an enforceable agreement was reached during mediation.
The parties agreed to waive Rule 1:40-4(d), which states, “unless the participants in a mediation agree, no mediator may disclose any mediation communications to anyone who was not a participant in the mediation.” The mediator refused to disclose communications from the mediation, and the trial court entered an order compelling the mediator to testify. On the second day of the discovery hearing, Willingboro attempted to move for an order expunging all confidential communications disclosed and maintained mediation communications are privileged under New Jersey’s Uniform Mediation Act and Rule 1:40-4. The trial court ruled Willingboro previously waived the privilege and the discovery hearing continued.
The trial court found there was a settlement agreement. The Appellate Division affirmed the trial court’s enforcement of the settlement agreement and found Willingboro waived confidentiality. Additionally, the panel rejected Willingboro’s argument of the necessity of reducing the agreement to writing contemporaneously.
Willingboro filed a Petition for Certification and the New Jersey Supreme Court agreed to hear the case. Willingboro argued that under Rule 1:40-4(i), a settlement reached at mediation is not enforceable unless it is reduced to writing at the time of mediation and signed by the parties. Willingboro maintained the mediation privilege was not waived when it opposed Franklin’s initial motion to enforce the oral agreement and simply because the mediator violated the privilege in his certification should not be construed as waiver.
Franklin argued that nothing in Rule 1:40-4(i) requires that a written settlement resulting from mediation be created or tendered the actual day of mediation or signed by the parties. Franklin maintained the three day gap was reasonable for the settlement to be reduced to writing.
The Court explained that the success of mediation relies primarily upon the confidentiality of the communications as a way to encourage discussion and compromise in a dispute. Mediation communication is not defined by Court Rules but it is defined broadly by the Mediation Act as, “any statement, whether verbal or non-verbal or in a record that occurs during a mediation or is made for purposes of considering, conducting, participating in, initiating, continuing or reconvening a mediation or retaining a mediator.” N.J.S.A. 2A: 23C-2. The Court noted that Rule 1:40-4(i) specifies the manner in which settlement agreements are to be memorialized but it is not required. However, if the parties do memorialize their agreement, it can be used to enforce the settlement and this is the writing exception to the mediation privilege.
The Court further explained the privilege is not absolute and has limited exceptions, which include the writing exception. As a result of mediation, if the parties put their agreement into writing it can be admitted into evidence because it is no longer privileged. The second exception is waiver, where the privilege may be waived in a record or orally during a proceeding if expressly waived by all parties to the mediation.
The Court noted that the motion to enforce disclosed privileged mediation communications by the lawyer and the mediator went well beyond disclosure of whether the matter was settled. The Court explained that Willingboro did not consent in advance to this disclosure to the trial court to the privileged communications, and without these privileged communications, there was no way to ever prove a settlement was ever reached. The Court further noted that Willingboro then proceeded to litigate the matter, filed papers containing additional privileged communications and then deposed the mediator. The Court found Willingboro waived the privilege and then attempted to seek shelter in it, and the proper method was to immediately invoke the privilege when Franklin filed the motion to enforce and not disclose any communications. The Court affirmed the Judgment of the Appellate Division upholding the parties’ oral agreement reached at mediation.
However, the Court explained from this point forward, if parties reach an agreement in mediation, the terms must be reduced to writing and signed by the parties before the mediation comes to a close. In complex cases where the terms cannot be drafted, the mediation should continue for a reasonable time to allow for the signing for a settlement. The Court stated that from this point on, to reduce litigation, unsigned agreements will not be enforced.
Observation: Some commentators have claimed that Willingboro effectively voids Harrington v. Harrington, 281 N.J. Super. 39 (App. Div.), certif. denied 142 N.J. 455 (1995), and all the case law thereunder providing for the enforcement of oral agreements in family law matters. I disagree. Willingboro addresses only those agreements which arise out of mediation. Because of the privileges associated with mediation, the Court found it the better rule to deem oral agreements that come out of mediation unenforceable unless a writing signed by the parties resulted therefrom. It says nothing about oral agreements entered in any other context.
Most family law practitioners going into a four-way settlement conference usually start with the cautionary provision that there is no agreement unless it is reduced to writing—which is the better practice (our own version of Willingboro so to speak). This practice avoids the potential of a Harrington hearing and in the end, clients are more prepared to become psychologically bound to a deal when they see it in writing and sign it.
The opinion suggests that a video or other recording of the terms would satisfy the writing requirement. However, family law cases often present complex issues that cannot easily be addressed by a brief statement “on the record.” Therefore, a comprehensive writing signed by the parties is always the better practice for settling a complex family law matter.
What if the parties reach an oral agreement in mediation and act on the agreement before a written document is prepared? Would this partial performance be an exception to the Willingboro requirement of a signed writing?
Minkowitz v. Israeli, 433 N.J. Super. 111 (App. Div. 2013)
Issue: What role may the arbitrator play in a binding arbitration proceeding after having first mediated the parties’ disputes?
Holding: The arbitrator who engages in mediation is precluded from thereafter acting as arbitrator because he cannot retain the appearance of a neutral fact finder. Absent agreement in writing by the parties to the contrary, once an arbitrator functions as a mediator, he cannot conduct arbitration hearings.
Discussion: The plaintiff filed for divorce on March 18, 2008. In lieu of judicial proceedings, the parties agreed to binding arbitration for financial matters under N.J.S.A. 2A:23B-1 to 32.
The parties chose to defer commencement of arbitration, pending efforts to settle some disputes. The parties entered into four agreements in 2009 with the assistance of the arbitrator.
The first agreement was entered on February 2009, which was entered by Consent Order. The second was through a Memorandum of Understanding on July 8, 2009. The defendant’s counsel prepared a Property Settlement Agreement, which resulted in a disagreement regarding the value and disposition of the former marital home. This was resolved consensually in an Amendment to Memorandum of Understanding dated September 22, 2009, which was the third agreement. A conference call by the arbitrator settled the 2008 tax issues, which was memorialized in a Memorandum Agreement dated October 15, 2009.
The plaintiff hired co-counsel to assist in drafting and finalizing the PSA, and the plaintiff requested a meeting with the joint forensic expert to review his findings, which served as the underpinnings of the parties’ agreements. The defendant objected and stated the matters were settled, except for a few minor financial concerns. The arbitrator denied the request.
The plaintiff’s original counsel filed an application with the Family Part to substitute co-counsel as the plaintiff’s representative and requested an Order for production of all evaluations of the parties’ respective incomes and/or cash flows prepared in this matter. The judge dismissed the motion stating the parties agreed to binding arbitration. Later that afternoon, the parties reached a settlement on custody and parenting time, which was placed on the record.
A Dual Final Judgment of Divorce (JOD) was filed on March 8, 2010, which incorporated the parties’ Custody and Parenting Time Agreement. The JOD specifically referenced that any subsequent confirmed arbitration awards would be incorporated into the JOD, and the plaintiff’s demand for the production of financial documents was referred to the arbitrator.
The plaintiff filed a motion with the arbitrator seeking the arbitrator’s recusal or alternatively, requiring production of the joint expert’s documents. The plaintiff’s Certification inferred bias, stating the arbitrator acted as both mediator and arbitrator through the proceeding.
The arbitration hearing addressed the issues raised in the motions and denied the plaintiff’s motion. The arbitrator’s decision was incorporated into an Award dated May 25, 2010. The arbitrator denied assuming the role of a mediator.
The plaintiff returned to the Family Part seeking to set aside the May 25, 2010 Arbitration Order, requesting the same relief denied by the arbitrator. The trial court denied the plaintiff’s motion in its entirety and confirmed the arbitrator’s Award. The plaintiff sought reconsideration, which was denied.
The parties returned to arbitration, which was adjourned pending additional submissions from the parties. The plaintiff renewed her demand that the arbitrator recuse himself and claimed he engaged in ex parte communications with the joint expert in violation of R. 5:3-3(e). The arbitrator stated his communications were limited to scheduling matters. The plaintiff continued to request the arbitrator set aside the 2009 award.
On March 17, 2011, the arbitrator entered an Order incorporating the 2009 agreements. The defendant moved to confirm the award, and the plaintiff cross-moved to vacate the award and all underlying Agreements that were incorporated therein. The plaintiff further requested to terminate services by the arbitrator, to reopen discovery, and to select a new arbitrator to commence de novo arbitration of all financial issues. The judge granted the defendant’s motion and denied the plaintiff’s motion in a November 30, 2011 Order.
The plaintiff filed an appeal to reverse the Orders by the Court confirming the May 25, 2010, March 17, 2011, and August 11, 2011 awards by the arbitrator, whom she maintained committed misconduct, displayed partiality, and exceeded the scope of arbitral authority. On appeal, the plaintiff also seeks to vacate the Arbitration Awards and the Orders confirming them and the 2009 Agreements.
The Appellate Division explained that when parties elect binding arbitration the judiciary’s role to determine the substantive matters ends. In such matters, the judiciary role is limited to enforcing Orders or Subpoenas issued by the arbitrator, confirming the Arbitrator Award, correcting or modifying the Award, and in very limited circumstances, vacating an Award. Under N.J.S.A. 2A:23B-23, a trial court may vacate only upon proof:
(1) the award was procured by corruption, fraud, or other undue means;
(2) the court finds evident partiality by an arbitrator; corruption by an arbitrator; or misconduct by an arbitrator prejudicing the rights of a party to the arbitration proceeding;
(3) an arbitration refused to postpone the hearing upon showing of sufficient cause for postponement, refused to consider evidence material to the controversy, or otherwise conducted the hearing contrary to section 15 of this act, so as to substantially prejudice the rights of a party to the arbitration proceeding;
(4) an arbitrator exceeded the arbitrator’s powers.
The Court determined that the four 2009 agreements between the parties need not be vacated since they were reached through mediation and not arbitration. The Memorandum of Understanding clearly recited “an agreement reached between the parties…after mediation with the assistance of the arbitrator.” The Court found no legal basis to set the Agreements aside since the parties and their respective counsel fully executed each document.
The Court turned to the plaintiff’s challenge that the arbitrator committed misconduct and exceeded his powers by acting as both mediator and an arbitrator. The Court considered the compatibility of the two roles, which are used in alternative dispute resolution. The Court noted that a mediator becomes privy to a parties’ confidences in guiding the parties’ to a resolution, and therefore cannot thereafter retain the appearance of a neutral fact finder necessary to conduct binding arbitration. The Court explained, absent a written Agreement, an arbitrator who acted as mediator for the parties cannot thereafter reassume the role of an arbitrator. The Court sustained the Agreements reached by the parties in mediation and vacated only the post-mediation Awards made by the arbitrator.
Observation: What impact will this opinion have on Arbitration Awards previously confirmed where the arbitrator engaged in mediation efforts without the written consent of the parties?
To be safe, attorneys may want to include a provision in the Arbitration Agreement permitting the arbitrator to engage in mediation services. Otherwise, any 11th hour conference or informal settlement discussion with the arbitrator could ultimately become the pretext to disqualifying the arbitrator or vacating an award.
The opinion is legally sound as mediation is confidential and parties should be able to engage in settlement discussions without influencing the outcome of a contested hearing. In a practice where so many settlements are reached “on the steps of the Courthouse,” however, perhaps the Court could have found greater flexibility in permitting the award to stand. For example, why not say that even when there is no writing, so long as there is clear evidence that the parties consented to have the arbitrator undertake dual roles the award shall stand.
For those concerned about other challenges to arbitration awards see the unreported case of N.L. v. V.M., ___ N.J. Super. ___ (App. Div. 2013), 2013 WL 6096373. In that case, the Appellate Division set aside an Arbitration Award when the arbitrator “strayed from his neutral fact-finding role” by suggesting that the wife drop her Municipal Court Complaint against her husband and urged her to let him see the children on Father’s Day.
Maeker v. Ross, 430 N.J. Super. 79 (App. Div.)
certif. granted, 215 N.J. 485 (2013)
Issue: Is a palimony claim, where the promise of support is made prior to the 2010 Amendment to the Statute of Frauds, barred if the Complaint was filed after the effective date?
Holding: Yes. The Amendment makes clear and unambiguous that in order to be enforced Palimony Agreements must be reduced to writing, with the parties having the benefit of independent counsel, irrespective of when the Agreement to provide lifetime may have been entered.
Discussion: Effective January 18, 2010, New Jersey amended the statute of frauds under N.J.S.A. 25:1-5 to include paragraph (h):
No action shall be brought upon any of the following agreements or promises, unless the agreement or promise, upon which such action shall be brought or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or by some other person, thereunto by him lawfully authorized.
A promise by one party to a non-marital personal relationship to provide support or other consideration for the other party, either during the course of such relationship or after its termination. For the purposes of this subsection, no such written promise is binding unless it was made with the independent advice of counsel for both parties.
The plaintiff, Beverly Maeker, and defendant, William Ross, first started dating in 1998, and when the relationship progressed, they started living together. They moved to Bedminster, New Jersey, where they rented a house together and then jointly leased a home with an option to buy. Their relationship ended when defendant moved out of their home on July 1, 2011.
The plaintiff alleged that during the relationship she did not work outside the home, and the defendant supported her living expenses. The plaintiff maintained defendant promised her lifetime support. The plaintiff claimed that in December 2010, defendant executed a Power of Attorney appointing her as his attorney-in-fact, permitting her to manage and conduct of his affairs. The plaintiff alleged defendant executed a Will in which she was appointed his Executrix and Trustee, and that defendant devised the entirety of his residuary estate to her.
The plaintiff filed a Complaint on July 8, 2011 seeking relief based upon palimony, partnership/joint venture, resulting trust, fraud, and unjust enrichment. An Amended Complaint was filed on November 10, 2011, alleging the parties entered into an oral contract, and there had been partial performance, which removed her claim from N.J.S.A. 25:1-5(h). The plaintiff reasserted the claims set forth in her original Complaint.
The defendant filed a motion to dismiss plaintiff’s Complaint for failure to state claim under R. 4:6-2(e). The defendant argued, even if there was a promise, the promise was never memorialized in writing or had the benefit of independent counsel, and therefore the plaintiff’s claim was unenforceable.
The motion judge found that although the Complaint had been filed after the amendment, the contractual relationship existed before the effective date of the amendment. The motion judge stated, “it was unreasonable to assume the intent of the Legislature was to eliminate legitimate palimony claims that may have accrued over the last thirty years by creating a legal mechanism that did not provide affected parties any opportunity to file an action to protect their interests.” The motion judge denied defendant’s motion to dismiss and granted plaintiff’s request for pendente lite relief.
The defendant requested a stay pending appeal, which was denied. The defendant filed a motion for interlocutory review and a stay of the motion judge’s Order. The Appellate Division granted both applications.
The Appellate Division noted that it owed no deference to the trial judge’s determination that the Legislature could have only intended the courts to apply N.J.S.A. 25:1-5(h) after its effective date (January 18, 2010) since it is a question of law and statutory interpretation. The Court is to construe statutes by the Legislature’s intent and its ordinary meaning. The Appellate Division found the words within the Amendment to be clear and unambiguous.
The Appellate Division disagreed with the trial court’s view that the cause of action for palimony arose at the time the Agreement is entered. The Court explained palimony actions are based upon principles of contract, and therefore plaintiff’s cause of action accrued at the time defendant is alleged to have breached the Agreement, not at the time the promise of lifetime support was made. In this case, the plaintiff’s claim accrued when defendant abandoned her and broke his promise of lifetime support on July 1, 2011.
The Court distinguished Botis v. Estate of Kudrick, 421 N.J. Super. 107 (App. Div. 2011), from the plaintiff’s case. In Botis, the oral agreement, the breach of contract and the Complaint were all prior to the date the 2010 Amendment went into effect. In this case, the plaintiff and defendant were still together in 2010 when the Amendment went into effect, and the parties were fully capable of executing a written Palimony Agreement in compliance with the statute. The Court found that the Power of Attorney and Will were not sufficient to meet the requirement of the statute.
The Appellate Division did not close the door to the possibility that in the future the plaintiff could use the argument of partial performance as an exception to the statute. However, the Court held that the plaintiff’s claim failed as it did satisfy the requirement that a claim under partial or full performance must establish services of exceptional or pecular character.
The plaintiff’s other equitable claims under unjust enrichment, quantum meruit, quasi contract, and equitable estoppel were also dismissed. The Court held the plaintiff’s equitable claims were merely differently pled versions of her underlying palimony claim (i.e. claims based on homemaking services and companionship) and therefore are barred.
Observation: The Appellate Division will not have the last word on palimony as a petition for Certification was granted by the Supreme Court of New Jersey on September 4, 2013. Stay tuned.
As Maeker left ajar the door on the exception of partial performance – at least one court has elected to open that door. An unpublished Essex County trial court decision Joiner v. Orman, FD-07-1086-13, permitted a palimony claim to proceed under the partial performance exception even though there was never a written Agreement and neither party had independent counsel in entering into a promise for lifetime support. In Joiner, the parties lived together for approximately thirty-nine years where they maintained a marital relationship and held each other out as husband and wife. They raised four children and resided together as a single family unit. The parties filed joint tax returns, maintained bank accounts, and obtained real estate together. The defendant was an actor and author, while, the plaintiff deferred her career, cared for their children, took care of the household, and provided companionship to the defendant. The parties’ relationship ended in 2010, with the defendant moving out of the home and marrying another woman.
In Joiner, the parties acknowledged the existence of the oral agreement. However, the defendant claimed that he had no legal obligation in light of the statute of frauds. As the Court questioned rhetorically, under such facts “where then is the risk of fraud?”
Emma v. Evans, 215 N.J. 197 (2013)
Issue: Is the custodial parent entitled to the presumption that her renaming decision is in the children’s best interest?
Holding: No. In a dispute to rename a child, the party seeking to alter the surname given to the child at birth bears the burden of proving by a preponderance of the evidence the name change is in the best interests of the child. In a renaming dispute, there is no presumption in favor of the custodial parent’s decision to change the jointly given surname of the child.
Discussion: The plaintiff, Paul Emma, and defendant, Jessica Evans, were married on August 20, 1999, and two children were born of the marriage and given their father’s surname Emma. The parties separated in 2008, and finalized their Judgment of Divorce in January 2010, which included a Property Settlement Agreement (PSA). The parties exercised joint legal custody. The PSA designated the mother as the primary residential/physical custodian. The Agreement was silent with respect to changing the children’s surnames. The mother unilaterally modified the children’s surnames from Emma to Evans-Emma on healthcare forms and school records a few months after the divorced was finalized.
The plaintiff discovered defendant unilaterally modified the children’s surname from Emma to Evans-Emma. He filed a Motion seeking an Order to prevent the defendant from use of the surname Evans-Emma. The defendant filed a Cross-Motion requesting to change the children’s surname to Evans.
The trial court denied the plaintiff’s request and granted defendant’s request to change the child’s surname to Evans, relying upon the Court’s decision in Gubernat v. Deremer, 140 N.J. 120 (1995), stating while the proper test was the best interests of the child, the surname chosen by the custodial parent is presumed to be in the best interest of the child. The trial court disagreed with the defendant’s argument that the presumption was only applied to children born out of wedlock.
The Appellate Division reversed the trial court’s ruling and held that Gubernat did not apply. The Appellate Division rejected the presumption in favor a custodial parent and held that when a child is jointly named at birth, the best-interest-of-the child standard applies in an application to rename the child.
The Appellate Division noted in the present case the parties agreed to joint legal custody and that a name change was a “significant matter” that required the parties to attempt to agree. The Appellate Division remanded the trial court’s order for consideration of defendant’s name change request based on the best-interests-of-the-child standard without a presumption in favor of either parent.
Defendant filed a Petition for Certification and the New Jersey Supreme Court agreed to hear the case. The defendant argued that the Appellate Division holding results in discrimination based on marital status (i.e. Gubernat presumption in favor of custodial parent in case where child born out of wedlock versus this case child born in wedlock).
The Supreme Court distinguished the holding in Gubernat from the present case. The father in Gubernat initially denied paternity, as he was not named on the child’s birth certificate, but later established paternity and sought custody and demanded the surname of the child be changed. The Court concluded the appropriate standard in naming disputes was the best interest of the child along with a presumption in favor of the surname chosen by the custodial parent. Gubernat cautioned the presumption should not be irrefutable, and the decision should take care to avoid impermissible gender preferences.
The Court explained that the presumption is not useful in the resolution of child renaming disputes after parents jointly named their child. The Court states in a post-divorce setting, absent an agreement between two parents sharing joint legal custody, it is unclear the custodial parent should be entitled to a presumption with the application of the best-interest analysis to a request to change a child’s surname.
A change in a child’s jointly given surname is not akin to a daily parenting decision which usually defers to the primary custodial parent. It is a major decision such that joint legal custodians have equal rights over the decision without either party benefitting from a presumption in their favor.
The Court further explained that Gubernat was about promoting gender neutrality not establishing one standard for out of wedlock children and another for children born in wedlock. Therefore, for a name change application, it does not matter whether the parties were married when the child’s name was originally selected. The Court further explained that the parent seeking the name change in a subsequent dispute must bear the burden of showing by a preponderance of the evidence that the name change is in the child’s best interest, and the relevant starting point is whether the parents agreed on a surname at birth. The Court explained each case is fact sensitive but laid out following child-centric factors:
1. The length of the time the child has used his or her given surname;
2. Identification of the child with a particular family unit;
3. Potential anxiety, embarrassment, or discomfort that may result from having a different surname from that of the custodial parent;
4. The child’s preference if the child is mature enough to express a preference; The Court further stated courts can consider such additional factors, now part of the child-centered totality of the circumstances analysis of the child’s interests in retaining or having altered his or her given surname.
5. Parental misconduct or neglect, such as failure to provide support or maintain contact with the child;
6. Degree of community respect, or lack thereof, associated with either paternal or maternal name;
7. Improper motivation on the part of the parent seeking the name change;
8. Whether the mother has changed or intends to change her name upon remarriage;
9. Whether the child has a strong relationship with any siblings with different names;
10. Whether the surname has important ties to family heritage or ethnic identity.
11. The effect of a name change on the relationship between the child and each parent.
The Court affirmed the Appellate Division.
Observation: Would the case be decided the same had the parties not shared joint legal custody?
See also N.J.S.A. 26:8-26 (if both parties have custody but disagree on a name, the child shall be given a hyphenated surname based on alphabetical order) (citing N.J.A.C. 8:2-1.3(a)(2)).
In a naming of a child dispute—since 1995 there is no longer a presumption in favor of the father’s surname. Gubernat v. Deremer, 140 N.J. 120 (1995). Now the presumption is in favor of the surname chosen by the custodial parent. The non-custodial parent has the burden to show by the preponderance of the evidence that the name selected by the custodial parent is not in the best interests of the child.
It is important to note that Emma is not a naming case—it’s a renaming case. A change in the child’s name is a major decision, requiring parties with joint legal custody to agree—and—absent agreement the court decides what is in the best interest of the child with neither party (including the party having primary custody) benefitting from any presumption. Indeed, the party seeking to change the surname jointly given to the child at birth has the burden to show by a preponderance of the evidence that a change in the surname is in the child’s best interests.
Reese v. Weis, 430 N.J. Super. 552 (App. Div. 2013)
Issue: Is the economic benefit the defendant received as a result of defendant’s cohabitation substantial enough such that alimony should be terminated?
Holding: When determining whether an economic benefit is received in the context of cohabitation, the court must consider not only the actual financial assistance resulting from the new relationship, but should also weigh other enhancements to the dependant spouse’s standard of living that result from the cohabitation. The trial judge may evaluate the duration of the new relationship and assess its similarities to the fidelity associated with marriage when determining whether to modify or terminate alimony.
Discussion: A Judgment of Divorce was entered on July 17, 1996, which ended the parties’ thirteen-year marriage. The plaintiff, Ronald Reese, was required to pay the defendant, Rebecca Weis, $100,000.00 per year as permanent alimony.
The defendant began cohabitating with her boyfriend, William Stein, when they jointly purchased a home in Port Washington, New York, on October 13, 1998. The defendant and her three children moved into the home along with Stein and his two children.
Ten (10) years later, the plaintiff filed a Motion to terminate alimony citing the defendant’s cohabitation. The defendant argued she lived openly with Stein, never hid her cohabitation, and that the doctrine of laches should bar the plaintiff’s application. The defendant also argued that permanent alimony could never be terminated upon cohabitation, only remarriage or death.
The trial focused on the financial arrangements between defendant and Stein. When the defendant and Stein purchased their home, the defendant paid four-sevenths (4/7) and Stein paid three-sevenths (3/7) of the home’s purchase price and renovation costs based on the size of their respective families. The defendant conceded she would not have been able to live in this home were it not for Stein’s initial and ongoing contribution.
They vacationed together and conducted themselves as a family unit. Stein participated in family religious events and the families celebrated holidays together. The parties’ children shared bedrooms and referred to each other as step-siblings. The defendant and Stein owned a joint checking account and were signatories on joint Visa and American Express account utilized for joint household expenses.
The defendant explained she deposited her receipts from alimony, child support, gifts, investment income, and any earnings into her individual account. She would transfer $8,166.00 from her personal funds into the joint checking account, which would be matched by Stein monthly. The joint account would be used to pay for mortgage, real estate taxes, repairs, maintenance, utilities, landscaping, furniture, food, clothing, pharmacy, dry cleaning, gifts, housekeeper, dog care, summer camp, and other everyday expenses for all five children. The parties conceded there was no clear-cut arrangement on what was personal and was a joint expense.
Additionally, Stein personally paid for the family vacations and luxuries, including several trips out of the country and access to his family’s private jet. Stein paid all costs associated with the family vehicles including car insurance, lease payments, and repairs to these vehicles. Stein’s business also provided the defendant with health insurance. Stein paid for 100% of the American Express bill charges.
The trial judge rejected the defendant’s argument, which suggested the plaintiff waived the right to terminate alimony because he delayed filing his application despite knowing for ten years she was cohabitating. The trial court found the finances were intertwined and the defendant failed to show her expenses were satisfied by her separate income receipts. The plaintiff’s application to terminate alimony was granted.
The Appellate Division affirmed the trial court’s decision to terminate alimony. First, it rejected the defendant’s claim that permanent alimony can only be terminated upon remarriage or death. The Court made clear that alimony can be terminated if warranted when either party experiences a change in circumstances, and cohabitation of a dependent spouse falls under the category of a change in circumstances.
The Appellate Division explained that cohabitation involves an intimate relationship requiring more than a common residence, where the couple has undertaken duties and privileges that are commonly associated with marriage, such as intertwined finances, shared living expenses, household chores, and recognition of the couple in the family and social circle. Upon the showing of cohabitation, a court must focus on the economic relationship of the cohabitants to determine whether one subsidizes the other.
The Court pointed out that this is the first case to address what constitutes an economic benefit and when such a benefit warrants termination or modification of alimony.
The defendant argued that the trial judge failed to quantify Stein’s contribution to the defendant’s needs, making the termination of alimony reversible error. The defendant further argued the alimony may be reduced or suspended subject to a right to reinstatement. The defendant maintained that laches or equitable estoppel should bar plaintiff from seeking a termination of alimony at this time.
The Court explained the defendant’s lifestyle was enhanced, which equated to a tangible economic benefit from the new living arrangement. Moreover, the Appellate Division agreed with the trial judge’s findings that the finances between defendant and Stein were intertwined. The Court noted the substantial financial evidence of Stein subsidizing the defendant’s lifestyle and that the defendant enjoyed a lifestyle above that enjoyed during the marriage. The Court explained that taken together, the facts demonstrated significant direct and indirect economic benefits flowed from Stein to the defendant along with the lifestyle enhancements, thus supporting the trial judge’s conclusions.
The Court rejected the defendant’s argument that her annual expenditures justify the continued need for support. The Court explained that spending does not negate an economic benefit received from cohabitation when the defendant failed to prove she paid for herself and the children’s expenses separately. The Court further explained that the, “defendant’s lifestyle was Stein’s lifestyle, enhanced by Stein’s provision of luxuries via gifts and vacations, the shouldering of a disproportionate share of joint expenses, and the complete satisfaction of other costs for her sole benefit.”
The Court rejected the defendant’s argument that alimony should be reduced, not terminated, due to the trial court’s failure to quantify the amount of the benefit defendant received as a result of cohabitation. The Appellate Division noted the trial court’s struggle to quantify was not a failure to sift through the evidence but a deficit in the proofs. The Court explained that the defendant herself was uniformed about her needs, and could not set forth the economic benefit she received from Stein. The Court explained the defendant failed to meet her burden that she did not benefit from sharing a household with Stein or to quantify what that benefit totaled. The Court also noted that the length of the defendant’s relationship with Stein has surpassed the duration of the marriage. The Court held that considering the totality of the evidence, there was no error in terminating alimony.
The Court rejected the defendant’s argument regarding laches. Laches is the failure to assert a right within a reasonable time resulting in prejudice to the opposing side. Clarke v. Clarke ex rel. Costine, 359 N.J. Super. 562, 570 (App. Div. 2003). The Court stated the defendant failed to prove she was prejudiced by the plaintiff’s delay in his application to terminate alimony.
Observation: Is this a watershed opinion by Judge Lihotz in an area where there has been a dearth of legal precedent – or was this just a perfect storm fact pattern which made it impossible to continue alimony in this case? It didn’t help the alimony cause that the period of cohabitation exceeded the length of the marriage; and that the cohabitant’s lifestyle was so lavish (private jets, luxury vacations, etc.) that it appeared to exceed the marital lifestyle. In Judge Lihotz’s words, “defendant’s lifestyle was Stein’s lifestyle.” There were also other clear problems with this case:
1. The parties started out contributing 4/7 – 3/7 for the home – but then paid the regular carrying costs of home on a 50/50 basis;
2. Everyday costs such as haircuts, clothing for children, and medical expenses were paid 50/50 regardless of who incurred the expense; and
3. The cohabitant paid 100% of some of defendant’s expenses like Amex charges, auto, and health insurance.
This case does signal that where you have cohabitation, with parties actually purchasing a home together (as opposed to the case where investigators need to go out in order to try to establish how many nights Dick sleeps with Jane) it may be difficult if not impossible to continue alimony. Cohabitation creates a rebuttable presumption of changed circumstances and shifts the burden to the dependent spouse to show that there is no actual economic benefit to the spouse or the cohabitant. Reese now holds that the economic benefit can be indirect (e.g. the defendant could not have lived in such a home without partnering with Stein). In such cases, Judge Lihotz notes “the ability to prove economic independence may diminish or possibly disappear.”
Practice Tip: The question still remains when will cohabitation terminate, as opposed to merely reduce or suspend, alimony. In that regard, practitioners may want to look to the following:
A. The length of the cohabitation;
B. The duration of the receipt of economic benefits;
C. The amount of economic benefits versus the marital lifestyle; and
D. Whether the relationship exhibits the indicia of a marriage.
D.N. v. K.M., 429 N.J. Super. 592 (App. Div. 2013),
certif. denied __ N.J. ___ (2014)
Issue: Under due process must counsel be appointed for indigent litigants presenting or defending domestic violence complaints?
Holding: No. Indigents mounting a defense or presenting an allegation of domestic violence are not entitled to appointed counsel because the entry of a domestic violence final restraining order does not result in a consequence of “sufficient magnitude” to warrant mandatory appointment of counsel under due process of law.
Discussion: The parties were unmarried, had previously resided together, and had a child in common. The Father filed a Complaint against the Mother under the Prevention of Domestic Violence Act alleging acts constituting assault and harassment.
The following day, the Mother filed a Complaint under the Act against the Father alleging assault.
In separate ex parte proceedings, different Family Part judges reviewed the parties’ complaints and requests for temporary restraining orders. Each granted temporary restraining orders and listed the cases for trial on the same day before a single judge.
At final hearing, the Father had appeared with counsel, and the Mother represented herself. The Father testified first in support of his claims. The Mother then responded and testified in support of the allegations in her Complaint. With regard to the Father’s case, the judge concluded that the Mother’s conduct resulted in harassment of the Father, and that there was a need to enter a Final Restraining Order to prevent further domestic violence. Addressing the Mother’s case, the judge concluded that the evidence was insufficient to support the claim of assault, and dismissed the Mother’s Complaint.
The Mother appealed arguing that the plaintiff/victim in a domestic violence matter is entitled to counsel paid by the taxpayers of New Jersey. In Crespo, the Court refused to consider whether the right to counsel attached to a domestic violence matter because in that matter, the defendant had not requested the appointment of counsel prior to the adjudication of the domestic violence matter. Crespo v. Crespo, 408 N.J. Super. 25 (App. Div 2009) aff’d 201 N.J. 207 (2010). In this case, the Mother also did not request counsel despite in depth voir dire by that trial judge before the commencement of trial. Nevertheless, Judge Lihotz proceeded to address the right to counsel claim.
An indigent defendant is entitled to the assignment of counsel for purposes of the State’s prosecution on non-indictable offense in the Family Part. State v. Ashford, 374 N.J. Super. 332 (App. Div. 2004). In Ashford, the defendant faced a maximum sentence of 180 days imprisonment for violating a FRO.
The Appellate Division did an analysis of the appointment of counsel in civil proceedings. The Court found that when the power of the state is enforced against a defendant, the right to appointment of counsel will attach to proceedings even when a litigant is not facing incarceration. In this case, however, it was not the power of the state versus a litigant—it was alleged victim versus defendant. Furthermore, the Appellate Division held that entry of a Final Restraining Order along with related relief does not result in a “consequence of sufficient magnitude” to warrant mandatory appointment of counsel.
The Appellate Division found that the purpose of the Act was designed to protect victims and remediate domestic violence. The Act is not punitive in that there is no incarceration and the relief under the FRO is curative. The Appellate Division held that due process does not require the appointment of counsel for indigents presenting or defending a domestic violence action.
Observation: Judge Lihotz makes clear that both victims and defendants of domestic violence—even if they are indigent—are not entitled to the appointment of counsel at the taxpayer’s expense. The issue of “significant magnitude” was not satisfied by the defendant’s potential permanent loss of the right to bear firearms as otherwise guaranteed by the United States Constitution.
Benjamin v. Benjamin, 430 N.J. Super. 301 (Ch. Div. 2012)
(approved for publication 2013)
Issue: If a custodial parent desires to leave existing employment and relocate with the child to another state, must he or she have secured another job in the new state before relocation is permitted?
Holding: No. Having a guaranteed job in another state is not a mandatory prerequisite for relocation. The likelihood of obtaining employment and the ability to provide a financially stable household, is a relevant factor in determining whether or not the relocation is in the best interest of the child.
Discussion: The plaintiff and defendant divorced in 2008 and shared joint legal custody of their 11 year old daughter, S.B. The defendant/mother, was the primary residential custodian and plaintiff had parenting time mostly on alternate weekends. On May 23, 2012, the defendant filed a post-judgment motion for permission to relocate from New Jersey to North Carolina with S.B. The plaintiff objected to the proposed removal and filed a cross-motion for residential custody of S.B.
At the plenary hearing, the plaintiff contended that the defendant who had been gainfully employed as a property manager earning $40,000.00 per year, had no guaranteed employment awaiting her in North Carolina. The plaintiff argued defendant would remain unemployed in North Carolina to the child’s financial detriment.
The law of relocation is set forth in Baures v. Lewis, 167 N.J. 91 (2001), which established that the moving party bear the burden to prove there is a good faith reason for the proposed move and that the proposed move will not be inimical to the child’s interests. The burden then shifts to the party opposing the move to produce evidence that the move is either not in good faith or inimical to the child’s interests. When addressing relocation, a court must address the following factors:
1. The reasons given for the move;
2. The reasons given for the opposition;
3. The past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move;
4. Whether the child will receive educational, health, and leisure opportunities at least equal to what is available here;
5. Any special needs or talents of the child;
6. Whether a parenting time schedule and communication schedule can be developed that will allow the non-custodial parent to maintain a full and continuous relationship with the child;
7. The likelihood that the custodial parent will continue to foster the child’s relationship with the non-custodial parent if the move is allowed;
8. The effect of the move on extended family relationships here and in the new location;
9. If the child is of age, his or her preference;
10. Whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent;
11. Whether the non-custodial parent has the ability to relocate; and
12. Any other factor bearing on the child’s interest.
Id. at 117
The Court noted that absent from the list is a mandatory requirement of guaranteed, out-of-state employment before a court can grant a removal application. The Court found it was inherently inequitable to impose such a condition upon a filing party. When a party files a motion for relocation, there is usually a gap between the date filed and the date a court adjudicates the matter. It would be both impractical and unlikely that the custodial parent would be able to obtain employment when he or she will not have an answer on the issue of removal for several months.
The Court noted that during the plenary hearing, the defendant presented evidence of a job offer she was unable to accept due to the litigation.
The Court explained that the more relevant inquiry is not whether the moving parent has a guaranteed job, but rather a reasonable plan for providing an economically stable home in the new state. The reasonableness of a custodial parent’s relocation plan requires an analysis of the party’s employability and work history. The Court permitted the relocation finding that defendant was likely to obtain suitable employment in North Carolina; that defendant had a history of steady employment, and financial responsibility; and evidence that she sought and obtained at least one offer in North Carolina with a higher salary than in New Jersey.
Observation: Judge Lawrence Jones has become the most prolific trial judge author of reported family law decisions. The issue raised in this case is novel as most times the custodial parent has only part-time employment and is a full-time child caregiver. In such cases, the employment opportunity in the new state is largely an irrelevant consideration. This case demonstrates how practitioners can use the Baures catchall factor. In the right cases and under the right circumstances, employment considerations can be an important part of the removal calculus.
* I wish to thank Jenny Birz, Esq., Lexi Caruso, and Ashley B. Barth, Esq. for their assistance in the preparation of this article.
1 Note the first step in a removal case is to determine the nature of the existing custodial relationship. Here it was clear there was not a shared joint custody arrangement such that it is not a “best interests” of the child analysis that applies.