Without doubt, the New Jersey State Legislature took the lead in impacting the course of family law in 2014. Nevertheless, as demonstrated in reported opinions such as Maeker v. Ross, the Court still has the final word in interpreting and shaping the meaning of newly enacted statutes governing our practice.
In 2014, children’s issues were prominent throughout the top ten cases. Grandparent visitation, psychological parent’s rights, the interplay between child custody and domestic violence, the ongoing tug of war between the rights of a parent with joint legal custody versus the rights of the primary caretaker, and the question of under what circumstances the Court should interview a child in a custody dispute, were all addressed in reported opinions.
The following are my selections for the ten most important reported cases decided in 2014. 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.
Maeker v. Ross, 219 N.J. 565 (2014)
Issue: Does the 2010 amendment to the Statute of Frauds, N.J.S.A. 25:1-5(h), render oral palimony agreements that predate it unenforceable?
Holding: No. The Legislature did not indicate that it intended the amendment requiring that palimony agreements be in writing to apply retroactively. Accordingly, only palimony agreements formed after January 18, 2010 have to comply with the amendment.
Discussion: In 1998, plaintiff Beverly Maeker met defendant William Ross and they began a romantic relationship. The next year, Maeker moved into Ross’s home, while maintaining ownership of her condominium where her son from a former marriage resided. From this time until their separation in 2011, Ross fully financially supported Maeker. He paid for all of her living expenses, for the mortgage and maintenance of her condominium, and for her son’s college expenses. Maeker reciprocated by performing all of the duties Ross requested of her, including cooking, cleaning, providing companionship, and being a homemaker and confidant. Maeker cared for Ross when he was ill, and they traveled together, attended family events together, and moved to Bedminster, NJ, where they rented a home together. The two presented themselves as a family unit.
According to Maeker, Ross repeatedly promised to support Maeker financially over her lifetime. Based on these promises, Maeker left her twenty year career. In late 2010, Ross executed a written power of attorney, authorizing Maeker to manage and conduct all of his financial affairs. That same month, he executed a will, naming Maeker as his executor and trustee and leaving sufficient funds for her support and maintenance commensurate with their joint lifestyle.
Less than a year later, in July 2011, Ross ended their relationship, leaving their joint residence and terminating all financial support to Maeker. Maeker filed a Complaint seeking enforcement of their oral palimony agreement, along with a number of other legal and equitable theories of relief, including partial performance as a bar to the Statute of Frauds, unjust enrichment, quantum meruit, quasi-contract, equitable estoppel, and fraud. Ross moved to dismiss Maeker’s Complaint on the grounds that it did not state a claim on which relief could be granted pursuant to R. 4:6-2(e), claiming that the 2010 amendment to the Statute of Frauds, N.J.S.A. 25:1-5(h), renders all oral palimony agreements unenforceable, including those that predate the amendment.
The trial court denied Ross’s Motion, observing that the Statute of Frauds is not typically retroactively applied, as such an approach conflicts with “constitutional protections against impairment of contracts.” In this case, as the amendment did not clearly indicate whether the Legislature intended to bar oral palimony contracts that were made prior to the amendment, the trial court determined that the amendment should not be interpreted to invalidate a pre-existing palimony agreement. The trial court permitted Maeker to proceed on all of her claims and awarded her pendente lite relief and attorney’s fees.
On appeal, the Appellate Division reversed the decision and dismissed Maeker’s Complaint with prejudice. Maeker v. Ross, 430 N.J. Super. 79 (App. Div. 20013). The Court found that the language of the 2010 amendment to the Statute of Frauds unambiguously directed the enforcement of palimony agreements only when the agreement was in writing and when both parties had the benefit of independent counsel, irrespective of when the contract was created. Further, the Appellate Panel found that Maeker’s cause of action accrued not when the promise of support was supposedly made, but when Ross allegedly breached the agreement. Therefore, in this case, the cause of action accrued in 2011, when Ross abandoned Maeker; one year after the amendment which required the palimony agreement to be in writing. The Appellate Division found that Maeker and Ross could have “come into compliance with the amendment” by putting their agreement into writing and obtaining counsel after the amendment was passed, but did not do so. The Appellate Division also rejected Maeker’s argument that the power of attorney and will executed by Ross was, in effect, a written palimony agreement, as the documents did not evidence a promise to support Maeker for her lifetime. Finally, the Appellate panel rejected Maeker’s equitable claims.
The Supreme Court granted certification and granted the Motions of the New Jersey Chapter of the American Academy of Matrimonial Lawyers and the New Jersey State Bar Association to participate amici curiae, both of whom urged the Court the reverse the Appellate Division. As the primary issue on appeal was whether the Legislature intended to render oral palimony agreements that predated the 2010 amendment unenforceable, the Court looked first to the statutory language to determine if it is unambiguous. If it is not unambiguous, the Court will then examine extrinsic sources such as legislative history to determine legislative intent. The amendment states:
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:
h. 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.
Further, the amendment states that the act “shall take effect immediately.” The bill was signed into law on January 18, 2010. As observed by the Supreme Court, the law prior to that date, pursuant to Kozlowski v. Kozlowski, 80 N.J. 378 (1979), was that an oral agreement to provide future support to a partner with whom the supporting individual has a marital-type relationship is enforceable; and most parties entering this type of relationship do not reduce their agreement to writing. Thus, an “indeterminable number” of individuals may have relied on Kozlowski prior to the amendment. Whether the Legislature intended to render those agreements void depends on the meaning of the words “this act shall take effect immediately,” and the Court found that the plain language of the statute as well as the legislative history do not resolve the issue raised on appeal.
Generally, the Court will enforce newly-enacted statutes prospectively unless the Legislature explicitly mandates otherwise. This is due to the fact that while everyone is presumed to know the law, they are not expected to anticipate laws that do not yet exist. Further (as the trial court originally observed), the Statute of Frauds has historically been applied prospectively, to avoid interfering with rights that have already vested. Yet, there is no indication, express or implied, within the text or legislative history of the amendment that the Legislature intended the new statute to extinguish previously-formed lawful oral palimony agreements.
Accordingly, the Court determined that the Legislature did not intend to retroactively void the oral palimony agreements predating its enactment and thereby reinstated Maeker’s palimony Complaint. Further, the Court noted that the Appellate Division erred in focusing on when the cause of action “accrued” instead of the date the oral contract was formed, for retroactivity purposes.
Observation: Palimony contracts not reduced to writing entered into prior to January 18, 2010 are apparently safe…for now. But see Senate, No. 2553 introduced on October 27, 2014, a bill to clarify the intent of the Legislature to give retroactive effect to the new palimony statute. Indeed, the proposed law would give palimony claimants one (1) year from when the proposed statute is enacted to put their agreements in writing in order to come into compliance with the Statute of Frauds.
The Court also did not address whether equitable forms of relief are available under the new law in the absence of a written palimony agreement. Accordingly, the door remains open for litigants to pursue equitable arguments to enforce oral palimony contracts entered on or after January 18, 2010.
Krupinski v. Krupinski, 437 N.J. Super. 159
(App. Div. 2014)
Issue: May a trial court deny a Husband’s application to terminate his alimony obligation without a plenary hearing, when it is alleged that as a result of his post-divorce efforts the portion of his monthly pension benefits received by the Wife in equitable distribution includes an enhanced amount which exceeds the alimony obligation?
Holding: No. The trial court must consider whether the portion of the Husband’s pension awarded to the Wife in equitable distribution was enhanced by the Husband’s post-divorce efforts and whether this enhancement makes it no longer necessary for alimony to continue.
Discussion: The parties married in 1968. The parties entered into a Property Settlement Agreement (PSA) and were divorced by Judgment of Divorce on June 27, 1990. When the parties divorced, the Husband was a public school teacher, earning an approximate annual salary of $46,000.00. On the date of divorce, he had accumulated 19 years and 11 months of service in the public school pension. In the PSA, the parties agreed that, once the Husband began to draw from his pension, the Wife would be entitled to a percentage of each pension payment made to him based upon a coverture fraction and the parties entered into a Qualified Domestic Relations Order (QDRO) to that effect. The parties further agreed that the Husband was to pay the Wife $100.00 per week, or $430 per month, in alimony. Alimony was never modified from the $100.00 per week fixed in 1990.
The Husband was 64 years old when he retired in April 2010, 20 years after the parties divorced. By that time, he had accumulated 41 years and five months of service in the pension. Importantly, after the parties’ separation, the Husband continued to further his education. At the time of his retirement, the Husband’s annual salary was $132,210.97, nearly three times the salary he was making as a teacher at the time of his separation. The Division of Pensions and Benefits informed the Husband that he was entitled to $5,929.90 per month in benefits, resulting in a monthly benefit to the Wife in the amount of $1,871.00 pursuant to her equitable distribution award and the coverture formula provided in the QDRO entered pursuant to the PSA.
The same month of his retirement, the Husband filed his first Motion seeking to terminate his alimony obligation. Though the trial court found that the Husband had established changed circumstances, the court found “critical” the Husband’s failure to disclose his income in 1990, the year of the divorce, or provide a description of the marital lifestyle in that year. The trial court denied the Husband’s Motion, finding that he would be able to continue paying his expenses, including his alimony obligation, after retiring.
Two years later, the Husband again filed a Motion seeking to terminate his alimony obligation. The record showed that, after the Wife began receiving her share of the Husband’s pension benefits, her annual gross income increased from $18,282.00 in 2009 to $40,734.00 in 2010. The trial court again found that the Husband’s retirement constituted changed circumstances. Furthermore, the Husband provided substantial evidence addressing the 1990 marital lifestyle and his income at the time of the divorce. Nevertheless, the trial court again denied the Husband’s Motion to terminate alimony, finding that he had the ability to pay the $100.00 per week notwithstanding his retirement.
On appeal, the Appellate Division concluded that the trial court overlooked the issue of whether the Wife’s financial status had improved to such an extent upon receiving a share of the Husband’s pension that she was no longer in need of alimony from the Husband to maintain her former marital lifestyle.
As stated in N.J.S.A. 2A:34-23(b), “when a share of a retirement benefit is treated as an asset for purposes of equitable distribution, the court shall not consider income generated thereafter by that share for purposes of determining alimony.” Notwithstanding this fact, as noted in Barr v. Barr, 418 N.J. Super. 18 (App. Div. 2011), “there are some extraordinary post-judgment pension increases that may be proven to be attributable to post-dissolution efforts of the employee-spouse, and not dependent on the prior joint efforts of the parties during the marriage. In such instances, these sums must be excluded from equitable distribution and the application of the coverture fraction may be insufficient to accomplish this purpose.”
In this case, the Husband claimed that of the Wife’s $1,871.00 per month pension benefit awarded via equitable distribution, $1,206.00 of the amount came from “post-divorce enhancing factors.” This $1,206.00 per month more than offset the $100.00 per week alimony award and for that reason the Husband argued that the Wife was no longer in need of alimony.
The Appellate Division acknowledged that the issue of whether a pension benefit was enhanced by post-judgment factors “is not an easy determination.” It requires an analysis of whether the increase in the value of the pension was due to the “personal industry” of the party controlling the asset, or whether it is due to inflation or other economic influences. As stated in Menake v. Menake, 348 N.J. Super. 442 (App. Div. 2002), “thus far, we have considered the ‘coverture fraction’ as sufficient to carve out the marital value of the asset and have not required that the value of the benefits as of the date of retirement be analyzed to determine, and subtract out, any enhancement due to post-divorce work effort…. Can, for instance, such enhancement be mathematically determined and factored out? Perhaps more importantly, can it be shown that the post-divorce enhancing factors… are entirely unrelated to plaintiff’s prior years of service?”
The Appellate Division thus remanded for further discovery and a determination as to whether an evidentiary hearing is warranted. Upon remand, the trial court is required to determine such “post-divorce enhancing factors.” For the Husband to prevail on his Motion, he must prove that: (1) a portion of the sum the Wife is receiving as her equitable distribution share of the pension is the result of his post-divorce efforts that enhanced the value of his overall pension benefits; (2) said portion is “income” to the Wife; and (3) with this additional income, the Wife will enjoy a lifestyle equal to or better than the former marital lifestyle without the need for alimony.
Observation: The Husband was not arguing that he did not have the ability to continue paying $100.00 per week. Nevertheless, the trial court denied the Husband’s Motion based on his ability to continue paying. The Husband’s argument was based on the Wife’s financial circumstances and it is there where the post-judgment inquiry needs to focus.
The statute and Innes v. Innes, 117 N.J. 496 (1990), make clear that a pension cannot be considered as income for alimony purposes if that portion of the pension was previously distributed in equitable distribution. This is the anti-double dip rule. Here, the Court allows a party to reexamine the portion of the pension the Wife received as equitable distribution and entertains the argument that to the extent that asset was enhanced post-divorce – that portion of the pension that has been enhanced and which is otherwise the Wife’s under equitable distribution – could now be considered in the alimony calculus without violating the double dip rule.
If the post-judgment enhancement is not part of the pension which is exempted from the alimony calculus, the argument can also be made that it should not be awarded to the Wife in the first place. Under our law, only the marital portion of the pension is subject to equitable distribution. If we can isolate post-judgment enhancements shouldn’t those sums be excluded from equitable distribution in order to avoid a windfall to the non-titled spouse? For example, if Ms. Krupinski remarried and alimony terminated, could Mr. Krupinski seek to reclaim the portion of the pension benefit awarded to the Wife as equitable distribution which he claims resulted from “post-divorce enhancing factors?”
The cases addressed in Krupinski involved equitable distribution of pre-retirement increases resultant from post-divorce efforts. Barr addressed a military pension where the retiree goes from a Captain in the Air Force at the time of divorce to a Major at the the time of retirement; Menake addressed a case where the retiree’s salary was substantially higher after the divorce because he worked extraordinary overtime. Both cases addressed whether the coverture fraction was sufficient in limiting the non-pensioned spouse from sharing in pension benefits earned subsequent to the date of divorce solely due to the efforts of the pensioned spouse. The subject is worthy of a seminar in itself. The debate is essentially between limiting pensions to amounts earned during coverture, and a “marital foundation theory” which essentially argues that post-judgment pension increases are the fruit of efforts made during the marriage (that is, you can’t become a Major without being a Captain first.)
Now for the very first time we take this “equitable distribution controversy” to advance the argument that the non-pensioned spouse received this windfall to which she is not entitled as equitable distribution, and this windfall should be treated as income to that party in the alimony calculus. In Krupinski, with the alimony at only $100.00 per week, the argument is that this windfall now eliminates any need for alimony.
It should be noted that the revised alimony statute, N.J.S.A. 2A:34-23(h)(4), now provides that “[t]he assets distributed between the parties at the time of the entry of a final order of divorce or dissolution of a civil union shall not be considered by the court for purposes of determining the obligor’s ability to pay alimony following retirement.” If read to apply to income generated from assets that were subject to equitable distribution at the time of divorce, this language broadly expands the holding of Innes. At the same time, it appears to limit the inquiry to the assets of the obligor, not the obligee. How this statute will be applied is an issue our trial courts will need to address.
R.K. and A.K. v. D.L. Jr., 434 N.J. Super. 113
(App. Div. 2014)
Issue: Should an FD complaint seeking grandparent visitation always be treated as a summary action requiring expedited resolution?
Holding: No. A Complaint seeking grandparent visitation as the principal form of relief should not be automatically treated as a summary action, merely because it bears an FD docket number. This sort of mechanized approach has the potential to inhibit grandparents’ rights to due process and can ultimately conflict with sound principles of judicial management. The court erred in dismissing the grandparent’s Complaint without affording them the opportunity to conduct discovery to gather sufficient evidence to overcome the father’s objection to grandparent visitation. Once discovery is complete, the court where appropriate may entertain Motions or ultimately conduct a plenary hearing.
Issue: Should an FD complaint seeking grandparent visitation automatically be dismissed if the grandparents fail to provide expert testimony?
Holding: No. Grandparents can meet their burden of proof that regular contact with their grandchild is necessary to avoid harm to the child without presenting expert testimony.
Discussion: The defendant, D.L. Jr., married the plaintiffs’ daughter K.K. in 2000. The two remained married for four and a half years, during which they had two children: Olga, born in 2001, and Charles, born in 2004. During the marriage, K.K. suffered from an addiction to pain medication.
The couple separated in 2004. During the divorce, the defendant fought to obtain physical custody of the children based primarily on his concerns regarding K.K.’s addiction to pain medication. However, in August 2005, the Court awarded K.K. physical custody of both children, and awarded both parties joint legal custody. According to the defendant, the matrimonial judge was heavily influenced by the grandparents’ reassurances that they would assist their daughter in properly caring for and supervising the children.
The grandparents shared their home in Howell, New Jersey with K.K. and their grandchildren for several years, until the grandparents relocated to Florida. While the grandparents claimed that this proved to be an extremely nurturing environment, the defendant viewed this arrangement as rife with the grandparents meddling in the affairs of his family and undermining his role as a parent.
This dissonance reached a critical point in November 2005 when the eighteen-month-old son Charles tragically drowned in a pond located in the backyard of the grandparents’ house. In their verified Complaint, the grandparents claimed that all members of the household were at home and asleep on the evening Charles died. In the early morning, the household awoke to screams from K.K. that she could not find the child. It was later determined that Charles had slipped out of the house in the night and fell into the pond, drowning in a foot of water.
Following Charles’ death, the defendant sought sole custody of the daughter, Olga. The same judge that had decided the divorce again granted K.K. primary custody of the child.
The defendant then filed a wrongful death action against the grandparents, claiming negligent supervision as the ground for liability. The grandparents settled the case with the defendant, claiming that they did so on the assurance that the settlement did not constitute an admission of liability on their part. The defendant contemporaneously filed an emergent application in the Family Part, again seeking physical custody of Olga. The Family Part denied defendant’s application.
In November 2009, the grandparents relocated to Florida, leaving K.K. and Olga to remain in their Howell, NJ home. The plaintiffs claimed that they remained in daily telephone contact with their daughter and granddaughter. However, on March 7, 2011, Olga returned home from school to find her mother unconscious. K.K. was promptly admitted to the hospital where she was diagnosed with a heart valve abnormality. K.K. underwent heart surgery, and while she had seemed to be recovering well, she passed away on April 2, 2011.
According to the grandparents, the defendant did not allow Olga to visit her mother while in the hospital, and only permitted her to telephone her mother twice. They also claimed that the defendant attempted to control Olga’s interactions with the grandparents at K.K’s funeral. The grandparents claim that, though the defendant told Olga at the funeral that he would “sort out” the grandparents’ involvement and communication with Olga in the future, it was nearly a month until they heard from Olga again. During that telephone call, the defendant listened in on the extension, but promised to do everything he could to maintain their relationship with Olga.
The grandparents claim that they spoke to their granddaughter two additional times in May 2011. After this point, the defendant permitted Olga to call her grandparents nine times over the next thirteen months. After January 2012, the grandparents no longer received any phone calls or emails from Olga. They attempted to call her on a daily basis to no avail. Their several emails to the defendant were also fruitless.
Accordingly, the grandparents attempted to file a Complaint pursuant to the grandparent visitation statute on July 13, 2012. Their Complaint was rejected by the Court because it was not accompanied by the Court-prepared “form” Complaint, nicknamed by the Appellate Division as a “check the box” pleading, citing Administrative Office of the Court Directive 08-11. This Directive provides for a state-wide, uniform system for processing non-dissolution cases, including grandparent visitation cases, as “summary actions, with additional discovery at the discretion of the judge.” This Directive also requires all litigants in non-dissolution matters to file their initial Complaint utilizing standard complaint forms. This Directive was promulgated based upon a desire to provide self-represented litigants with a consistent, statewide means of accessing the Family Part, as the non-dissolution docket is primarily comprised of self-represented litigants.
The grandparents thereafter filed the required Court form and attached the prior, more detailed Complaint. The defendant filed a Motion to dismiss the Complaint pursuant to R. 4:6-2(e) for failure to state a claim upon which relief can be granted, claiming that the time Olga spent with the grandparents before the death of K.K. was a negative and abusive experience to Olga’s physical and emotional wellbeing. The trial court granted the Motion and dismissed the grandparents’ Complaint without conducting an evidentiary hearing or affording either counsel the opportunity to present oral argument, based upon the grandparents’ failure to provide expert testimony.
The grandparents appealed this Order, and the Appellate Division reversed and remanded.
First, the trial court erred in automatically treating a Complaint for grandparent visitation as a summary action, thereby denying the grandparents the right to obtain discovery. Further, a verified Complaint prepared by an attorney seeking grandparent visitation should not be rejected because it was not presented with a standardized form complaint. A litigant should not be penalized for retaining an experienced attorney to present their case in the form of a professionally drafted pleading, which contains a far more comprehensive presentation of the facts and legal principles in this case than a standardized form document.
Concerning the substance of the grandparents’ application, the Appellate Division reiterated the standard as stated in Moriarty v. Bradt, 177 N.J. 84 (2003), cert. denied, 540 U.S. 1177 (2004), grandparents bear the burden of establishing by a preponderance of the evidence that visitation is necessary to avoid harm to the child. The grandparents’ evidence can be expert or factual. In this case, the defendant claimed that he considered the grandparents remaining in contact with Olga not only to be against her best interest, but highly dangerous to her psychological well-being. The only way for the grandparents to rebut that presumptively valid objection is to provide factual testimonial evidence describing their past interactions with the child. They may also decide to present expert testimony as well, especially as it relates to how the child’s ability to cope with the death of her mother may be undermined by the defendant’s decision to exclude the grandparents from her life.
Thus, when a litigant brings an action seeking grandparent visitation, the Family Part shall designate the matter as a contested case after joinder of issue and refer the case for individualized case management as necessary by a judge. That judge shall then determine, as soon as practical:
1 The nature of the harm to the child alleged by the plaintiff;
2 The possibility of settlement through mediation or as otherwise provided in Rule 5:5-5;
3 Whether pendente lite relief is warranted;
4 The extent to which any of the facts related to the statutory factors identified in the grandparent visitation statute (N.J.S.A. 9:2-7.1) can be stipulated by the parties;
5 Whether discovery is necessary, and if so, the extent and scope of the discovery, as permitted by R. 5:5-1(a);
6 Whether expert testimony will be required, and if so, the time for submission of the expert’s report and curriculum vitae, the time for submission of defendant’s rebuttal report, if any, and whether deposition of the expert(s) will be required or permitted;
7 A protocol for the filing of Motions, including Motions to compel discovery, Motions seeking protective orders to exclude or limit evidence based on an assertion of privilege, or because the release of the information would adversely affect the child’s best interest, or unduly infringe upon the privacy rights of the custodial parent; and
8 A tentative date for the filing of dispositive Motions and/or a plenary hearing if necessary to adjudicate plaintiff’s complaint and resolve and material facts in dispute.
The aforementioned is not an exhaustive list of the variety of potential case management issues which may arise in any given case, and the need and degree of judicial supervision is left entirely to the discretion of the trial judge. In any event, the trial court is to manage these cases with a sense of urgency.
In this case, the trial judge erred in finding that the facts were not in dispute; that the grandparents alleged no more than a general, unsubstantiated allegation of harm; and that expert testimony was necessary to substantiate the plaintiff’s claims. In grandparent visitation cases, the trial judge must conduct a fact-sensitive analysis applying the statutory factors of the grandparent visitation statute, to determine if the grandparents presented a prima facie case. If established, the court must then determine whether the grandparents have proven, by a preponderance of the evidence, that visitation is necessary to avoid harm to the child. The grandparents can meet their burden through factual or expert testimony. As made clear in Moriarty, most grandparent statutes across the country recognize the potential for harm when a parent has died or a family breakup has occurred and visitation is denied. The termination of a long-standing relationship between the grandparents and the child, with expert testimony assessing the effect of those circumstances, could form the basis for a finding of harm.
As the trial court here did not apply the statutory factors or conduct a fact-sensitive inquiry, the Appellate Division was required to reverse its decision. In this particular case, the trial court must determine to what extent the defendant’s resentment of the grandparents prejudices his parental judgment, and how such a bias may negatively affect Olga’s psychological and emotional well-being. Given Olga’s age, the court should also consider conducting an in camera interview and appointing a guardian ad litem.
Observation: Without doubt the importance of this case is procedural and has bearing on how all substantive matters (i.e. grandparent visitation, custody, child support) which happen to be docketed under an FD matter should be treated.
The procedural requirements outlined in this case provided the basis for the remand by the Appellate Division in the case of Major v. Maguire, 2014 WL 1491442, at *1 (App. Div. April 17, 2014). On July 18, 2014, the New Jersey Supreme Court granted certification in Major v. Maguire, 218 N.J. 530 (2014), on the issue “when adjudicating an application for grandparent visitation, under what circumstances must the trial court follow the procedural guidelines articulated in the Appellate Division’s recent decision, R.K. v. D.L., Jr., 434 N.J. Super. 113 (App. Div. 2014)?” Stay tuned, as the Supreme Court will have the final word on the procedure for handling grandparent visitation matters.
K.A.F. v. D.L.M., 437 N.J. Super. 123 (App. Div. 2014)
Issue: As a matter of first impression: must both fit and active legal parents consent to a psychological parent relationship between a third party and their child, for the third party to have standing to bring an action seeking custody and visitation rights as a psychological parent?
Holding: No. It is sufficient if only one fit and active legal parent has consented to the parental role of the third party. In that circumstance, the court must determine whether the third party has established that she is a psychological parent of a child, and, if so, whether the best interests of the child warrant some form of visitation. In such an examination, the trial court may consider as one factor one parent’s lack of consent to the alleged psychological relationship.
Discussion: In 1999, K.A.F. and F.D. began living with one another in a same-sex romantic relationship. The two women bought a house together in 2000 and subsequently decided to have a child. They determined that K.A.F. would carry the child after making arrangements with a sperm donor. In December 2002, their son Arthur was born.
In 2004, the parties began living separately. They agreed to share equal time with Arthur and to make joint decisions for his welfare. In March 2005, F.D. formally adopted Arthur. Later that year, Arthur was issued a birth certificate listing both F.D. and K.A.F. as his parents.
Around the same time, a mutual friend of the parties, D.M., became romantically involved with K.A.F., and they moved in together in the fall of 2004. In May 2006, D.M. and K.A.F. purchased a home and formalized their domestic partnership.
According to D.M., she and K.A.F. shared equal parental responsibility for Arthur. K.A.F. conceded that D.M. took some responsibility for Arthur’s care, but she disputed the extent of D.M.’s involvement with the child. F.D. conceded that she had no knowledge pertaining to the extent of D.M.’s role with Arthur while with K.A.F. and D.M., but she claims that she was at all times “adamantly and wholeheartedly opposed” to D.M.’s attempts to parent Arthur.
In 2010, strains developed in D.M. and K.A.F.’s relationship and D.M. left their home in March 2010. For approximately the next year, D.M. had more or less regular visitation with Arthur, including weekly overnight stays. This arrangement began to end in June 2011, and ceased altogether in November 2011 at K.A.F.’s behest. In January 2012, K.A.F. advised D.M. that she would no longer be allowed any contact with Arthur.
In October 2011, the court dissolved the domestic partnership between K.A.F. and D.M. Notably, D.M. did not seek any relief respecting Arthur at that time. In February 2012, D.M. filed a Complaint in the Family Part seeking joint custody of Arthur and a reasonable visitation schedule. K.A.F. and F.D. opposed the Complaint.
The family part judge dismissed D.M.’s Complaint on a motion for summary judgment, determining that there was no genuine issue of material fact suggesting that F.D. had ever consented to a psychological parent relationship between D.M. and Arthur; and that, when there are two involved, fit parents in the child’s life, a psychological parent application requires both parents to consent to the creation of the claimed relationship before a court may even address the issue.
The Appellate Division reversed and remanded the trial court determination. In citing prior case law on the issue of psychological parentage, the Court stated that a natural parent’s right to the care, custody, and control of her child is a fundamental right protected by the 14th Amendment to the United States Constitution. However, that right is not absolute. The presumption in favor of the parent will be overcome by “a showing of gross misconduct, unfitness, neglect, or ‘exceptional circumstances’ affecting the welfare of the child.”
Subsumed within the category of “exceptional circumstances” are the psychological parent cases. These cases do not require a showing that a parent is unfit. Instead, “exceptional circumstances” can be met by a showing of a probability of serious psychological harm to the child due to a change in custody. Four elements must be met for a party to have standing to bring a custody suit based on psychological parentage: 1) the legal parent must consent to and foster the relationship between the third party and the child; 2) the third party must have lived with the child; 3) the third party must perform parental functions for the child to a significant degree; and 4) most important, a parent-child bond must be forged. V.C. v. M.J.B., 163 N.J. 200 (2000). Once the presumption in favor of the legal parent is overcome, the Court will proceed to a determination of whether custody or other relief to a third party promotes the best interests of the child. When examining the best interests of the child, visitation is then the presumptive rule, as would be the case if two natural parents were in conflict.
In this context, the Appellate Division rejected the argument, asserted by the parents, that both parents must consent to the psychological parent relationship for standing to exist. Such a position would leave a court “powerless” to avert harm to a child through the severance of that child’s relationship with the third party. The Court noted that the “transcendent importance of preventing harm to a child weighs more heavily in the balance then [sic] the fundamental custody rights of a non-forsaking parent.” Thus, where at least one legal custodial parent has consented to the creation of the psychological parent relationship, the third party has standing to pursue the claim. “Consent” in this context need not be explicit; instead, the focus must be on the intent and actions of the legal parent during the formation of the disputed relationship.
Not withstanding this fact, the Court recognized that establishing psychological parenthood is “not an easy task.” One parent’s lack of consent may be used by the trial court, “in an appropriate context,” as one factor in the Court’s analysis. That being said, the Court noted in dicta its “expectation” that, the longer and more established the parental role of a third party has become, the more the lack of consent by one parent would diminish in significance.
As to the trial court’s determination that the matter should not proceed to a plenary hearing, the Court found that D.M. averred sufficient facts that, if credited at a plenary hearing, would establish her standing to pursue her Complaint. Importantly, F.D. and K.A.F. disputed certain factual claims made by D.M. concerning the nature of her relationship with Arthur and F.D.’s alleged consent of the relationship, thus giving rise to the necessity of a plenary hearing. Finally, the Court reversed the award of counsel fees in favor of K.A.F. and F.D. and remanded the matter to a different trial judge.
Observation: The basis behind allowing third parties certain rights under the theory of “psychological parentage” is to protect the children from psychological harm when they are separated from third parties who nurtured and lived with them and who have formed a parent-child bond with them. In cases where both parents are fit and engaged in the upbringing of their child, it may seem intuitive that parental autonomy should take precedent above all third party claims. However, as the law has repeatedly held, harm to the child trumps parental autonomy.
R.K. v. F.K., 437 N.J. Super. 58 (App. Div. 2014)
Issue: When a movant is seeking a change in custody during a divorce trial, is the Court’s analysis governed by a “changed circumstances” standard?
Holding: No. At a trial to determine custody, the outcome is dependent on what is in the child’s best interests. While a parent seeking a change in custody must make a prima facie showing of changed circumstances to be entitled to discovery and a hearing on the issue, the hearing is ultimately governed by a best interests analysis.
Issue: When determining custody in divorce cases involving domestic violence, should the Court apply the presumption, set forth in the domestic violence statute, that custody should be awarded to the non-abusive parent?
Holding: No. While the Prevention of Domestic Violence Act provides that the court shall presume the best interests of the child are served by an award of custody to the non-abusive parent, this standard applies in the Final Restraining Order context only. The custody statute, N.J.S.A. 9:2-4, governs custody issues in divorce trials and includes domestic violence as one of several factors to be considered.
Discussion: The plaintiff R.K. (father) was married to the defendant F.K. (mother) in 2001 and they had four children. In August 2008, the Family Part issued a Final Restraining Order (“FRO”) against the father based upon harassment and granted that the mother temporary custody of the four children. In relevant part, the father was granted parenting time for specific hours on Wednesdays, Saturdays, and Sundays.
In November 2008, the domestic violence court amended the FRO, giving both parents joint legal custody and granting the father holiday parenting time. The domestic violence court again amended the FRO in June 2009 to grant the father parenting time on alternating weekends from after school on Friday until Sunday at 6:00 P.M., on Wednesdays after school, and on holidays. In July 2010, the domestic violence court held a plenary hearing, denied the father’s request for a change in custody, and allowed the mother to continue to home school the children.
In 2011, the father filed for divorce. In the contest of his request for a change in custody, the father obtained an expert psychologist. The psychologist’s report noted the mother’s “very significant emotional problems,” which he opined jeopardized her emotional stability as a parent and interfered with her ability to have appropriate communications with the father. The psychologist recommended that the parents split residential custody, and that the mother cease home-schooling of the children.
After a seven-day divorce trial focusing on custody, the trial court designated the mother as the parent of primary residence, continued the existing parenting time schedule, and provided that the issue of home-schooling could be revisited only in the year before each child begins high school. In reaching its decision, the court denied the father relief because it found no substantial change in circumstance, and because it relied on the presumption of custody to the non-abusive parent as set forth in the Prevention of Domestic Violence Act.
The Appellate Division vacated and remanded the trial court’s determination. Lepis v. Lepis, 83 N.J. 139 (1980) provides “the proper procedure for courts to follow on modification motions.” First, the movant must make a showing of changed circumstances to be entitled to discovery and an evidentiary hearing. Once that prima facie showing is made, however, the trial is decided using “the same standard that apples at the time of an original judgment of divorce”–or, in cases involving custody, by a best interests analysis. In this particular case, holding a custody trial was appropriate, as the psychologist’s report established a prima facie showing of changed circumstances justifying a hearing. However, by relying on the “changed circumstances” standard in its ultimate decision regarding custody, the trial court erred.
Similarly, the trial court cited the incorrect legal standard when it determined that the mother was entitled to a presumption of custody pursuant to the Prevention of Domestic Violence Act. The Act applies this presumption only in proceedings in which complaints for restraining orders have been filed. In contrast, in custody trials, the history of domestic violence between the parties is one consideration in determining the best interests of the child. The presumption of custody to the non-abusive parent fulfills its function by “influencing the determination of custody in the initial FRO proceeding.” Thereafter, as previously stated, any change in custody requires a showing of changed circumstances and then proof at a hearing that a child’s best interests are served by a modification of a current custody order. If these showings are made, even after considering the history of domestic violence, re-application of the presumption in favor of the non-abusive parent would necessarily mean that the outcome is not in the best interests of the child.
Observation: Practitioners have long observed that while a finding of domestic violence gives rise to a presumption that custody should be awarded to the non-abusive parent under N.J.S.A. 2C:25-29b(11); under N.J.S.A. 9:2-4 in making an award of custody the “history of domestic violence” is only one of fourteen factors the Court is to consider. R.K. v. F.K. resolves the dispute in favor of having the Court weigh the seriousness of the history of domestic violence against the 13 factors in ensuring the best interests of the child.
N.B. v. S.K., 435 N.J. Super. 298 (App. Div. 2014)
Issue: In a domestic violence proceeding, can the court refuse to accept evidence of a defendant’s failure to comply with civil restraints contained in matrimonial orders on the grounds that violating a matrimonial order does not constitute an act of domestic violence?
Holding: No. While a violation of civil restraints is not itself an act of domestic violence, it may provide context to an allegation of harassment–in other words, why the recipient would be alarmed or seriously annoyed by the communication at issue–and is therefore admissible.
Discussion: In 2002, both parties obtained Final Restraining Orders (FROs) against one another. In 2003, in the context of a divorce settlement agreement, the parties vacated the existing FROs against each other in lieu of mutual civil restraints. The parties agreed that all communications with one another were to be by email, related to the children, only, except for communications in the presence of or monitored by the parent coordinator. The terms of the settlement were incorporated into a Judgment of Divorce in 2003.
Thereafter, the wife claimed that the husband repeatedly violated the civil restraints by placing numerous telephone calls to her, and sending a number of emails to each of the wife’s email addresses, including that of her place of employment. As a result, the wife filed a motion for enforcement of the matrimonial civil restraints. In October 2006, a motion judge issued an Order directing the parties to stop harassing and annoying each other. The Order further directed the husband to communicate with the wife via email only, about the children only, only at the wife’s one specific email address, except in the case of an emergency.
In 2009, the wife filed a domestic violence action against the husband, alleging harassment. The judge presiding over the domestic violence trial ruled that the husband’s actions did not constitute domestic violence and dismissed the action, but issued another Order repeating the directives of the 2006 Order containing civil restraints.
In June 2012, the wife filed a new domestic violence action against the husband based upon harassment–specifically, four or five harassing voicemail messages from the husband and nearly daily telephone calls from him. At trial, the wife attempted to provide testimony and evidence concerning the prior proceedings and Orders, to provide context and meaning to the recent communications.
The trial judge prohibited this evidence from being introduced, finding that there was no legal authority to support the conclusion that a violation of civil restraints constitutes an act of domestic violence. After reviewing only the latest calls made by the husband, the trial judge found that they did not constitute harassment under the statute, as the calls were not made anonymously, or at extremely inconvenient hours, or in offensive language, or in any other manner likely to cause annoyance or alarm.
The Appellate Division reversed and remanded for a new trial. The prior Orders and evidence of the husband’s prior violations of those Orders were relevant to the wife’s claim that the recent voicemail messages were “alarming and seriously annoying,” and done with the purpose to harass. An examination of whether an act of harassment pursuant to the Prevention of Domestic Violence Act occurred is fact-sensitive and dependent on context and setting. Whether the voicemail messages in this case were meant to or did in fact alarm or seriously annoy the wife could only be understood in light of the prior history.
In addition, the Appellate Division denied the wife’s request to set aside the initial Order dismissing the first FRO, finding the wife’s request to be untimely (filed 9 years after the dismissal).
Observations: The statute makes clear that, in proving the predicate act of domestic violence alleged, the trial court is to consider “the previous history of domestic violence between the plaintiff and defendant, including threats, harassment, and physical abuse.” N.J.S.A. 2C:25-29a(1). In many cases, domestic violence TROs and FROs are vacated in lieu of civil restraints. This case gives teeth to the civil restraints as their violation can make what is otherwise a non-actionable course of conduct rise to the level of harassment. Again, the violation of civil restraints in itself is not one of the 14 criminal acts the Legislature used to define domestic violence. N.J.S.A. 2C:25-19(a). Therefore, the mere violation of a civil restraint is not domestic violence. But taken into context with the unique facts of the case, the violation of civil restraints can make the conduct alleged rise to the level of harassment and therefore constitute domestic violence.
In a footnote, the Appellate Division also observed that the trial court also erred by barring plaintiff from calling defendant as a witness in her case in chief.
In a footnote, the Appellate Division also notes that trial courts can enforce civil restraints under R. 1:10 with the award of monetary sanctions or incarceration.
The Appellate Division notes that in “rare” cases requiring “imminent need for protection” it may be possible for a victim of domestic violence who has voluntarily dissolved an FRO to come back to Court to reinstate the restraints. This calls into question whether a dismissal is “with” or “without prejudice” when a victim agrees to dissolve an FRO.
Schochet v. Schochet, 435 N.J. Super. 542 (App. Div. 2014)
Issue: Is an individual entitled to the appointment of an expert to testify on his behalf at an ability-to-pay (now “ability to comply”) hearing?
Holding: No. Although Pasqua v. Council requires counsel be appointed to an indigent to avoid “a high risk of an erroneous determination and wrongful incarceration,” in this matter, the plaintiff could not show that an employability expert and accountant were necessary to assist the trier of fact in assessing whether the plaintiff’s failure to comply with a support Order was willful.
Discussion: The plaintiff and the defendant divorced in 2012. Prior to the divorce, the plaintiff was a portfolio manager at several hedge funds. However, the plaintiff stated his downturn in income occurred one year prior to the divorce, when he lost a high-paying job. He claimed he was unable obtain comparable income since that time.
The Amended Judgment of Divorce required the plaintiff to pay weekly child support of $390 and weekly alimony of $1,500. Later orders required the plaintiff to pay an additional $50 weekly toward arrears, and increased child support based upon cost of living. At the time of the ability to pay hearing, the plaintiff represented that he earned $600 weekly and had arrears of approximately $250,000, which continue to increase by approximately $1,500 weekly.
In August 2013, the plaintiff was incarcerated for non-support. His incarceration was stayed by the Supreme Court in October 2013. As per an Order dated November 7, 2013, the trial court denied the plaintiff’s request to be granted leave to proceed as indigent, yet appointed counsel to represent him for an ability-to-pay hearing; and granted his motion for an adjournment of the aforementioned hearing. The hearing was later further adjourned and rescheduled for February 2014.
Less than a week before the ability to pay hearing, the plaintiff’s appointed counsel contacted the Bergen County Counsel and requested that they retain an employability expert and a certified public accountant so that they may testify on the plaintiff’s behalf concerning the plaintiff’s employability and past, present, and future earnings, income, job placements, and ability to pay child support. This request was rejected by the Bergen County Counsel and denied by the trial court. The hearing was further adjourned until April 2014.
The plaintiff submitted an application for leave to file an emergent motion with the Appellate Division. The Appellate Division granted the plaintiff leave to appeal. This decision followed.
In Pasqua v. Council, 186 N.J. 127 (2006), the Supreme Court held that parents found to be indigent and facing incarceration at child support enforcement hearings were entitled to the appointment of counsel pursuant to the 14th Amendment of the United States Constitution as well as the New Jersey Constitution. Here, the plaintiff argued that Pasqua also required the appointment of experts to testify at his ability-to-pay hearing.
In disagreeing with this argument, the Appellate Division reviewed a 2014 AOC Directive, which identifies the two issues a trial court must decide when an obligor is taken into custody on a child support-related warrant: first, the court must determine if the obligor is indigent for representation purposes; second, the court must determine the obligor’s ability to pay his child support obligation.
Here, there was no finding that the plaintiff was indigent, as he was earning $600.00 per week (notwithstanding that he was afforded court appointed counsel). Moreover, Pasqua is silent in terms of other services that must be provided to the indigent obligor to protect his constitutional rights. Central to the Court’s ruling in Pasqua was the fact that an indigent obligor with no counsel at an ability-to-pay hearing faces a high risk of erroneous determination and wrongful incarceration. In this case, the plaintiff failed to show any heightened risk of erroneous determination and wrongful incarceration in the event his request for expert testimony was denied.
The plaintiff identified a number of so-called “employment search documents” which he claimed required expert analysis. However, the Appellate Court differentiated between an ability-to-pay hearing and a plenary hearing. An ability-to-pay hearing is not a plenary hearing to decide the appropriate amount an obligor should pay. It is also not an appeal or a motion to modify a support obligation based upon changed circumstances. Instead, the sole objective of an ability-to-pay hearing is to determine whether the obligor’s failure to comply with a support order was willful. As a result, a court will generally not need to go past an examination of whether an obligor has made a good faith effort to secure a reasonable level of employment. The plaintiff in this case made no showing that the subject matter of the expert testimony sought was anything other than that which Family Part Judges routinely deal.
Observation: It is vital to distinguish between ability-to-pay hearings and plenary hearings. The scope of an ability-to-pay hearing is narrow and can usually be determined without expert testimony. The question is simply, whether the obligor’s failure to comply with a support order was willful. In a plenary hearing, the issue is what is the appropriate level of support and whether the Family Part should adjust the obligor’s support obligation on the basis of insufficient income.
If you want to be politically and legally correct, please note that R. 1:10-3 hearings should not be called “pay or stay” or “ability to pay” hearings. The new terminology is “ability to comply” hearing as set forth in AOC Directive #02-14.
D.A. v. R.C.., ___ N.J. Super. ___ (App. Div. 2014)
Issue: In the context of a hearing involving the custody of a 14 year old child, is it mandatory for the trial court to conduct an interview of the child if requested by the parties?
Holding: No. However, if the trial court does not interview the child, it must place on the record its reasons for doing so and in deciding custody must consider all of the factors outlined in the New Jersey custody statute, N.J.S.A. 9:2-4(c), including “the preference of the child.”
Discussion: The parties D.A. (plaintiff) and R.C. (defendant) were in a dating relationship from 1996 through 2000. In December 1998, their son “Jeremy” was born. Shortly thereafter, the parties entered into a Consent Order for Joint Custody and Parenting Time on April 26, 2002. The agreement stipulated that the plaintiff mother would have residential custody of their then-three year old child, while the defendant father would have “reasonable and liberal parenting time” pursuant to a schedule specifically identified in the Consent Order.
No judicial intervention was sought by either party until the father filed a Motion dated November 7, 2012, requesting modifications of the Consent Order. At that time, Jeremy was 14 years old. The father represented that both parties mutually agreed to modify the parenting arrangement so that Jeremy would reside with him, due to Jeremy’s strained relationship with his mother and the demands of the mother’s employment. The father claimed that the parties agreed he would officially take primary custody of Jeremy commencing in September 2012, while the plaintiff would have scheduled visitation. The father also claimed that the mother agreed to file a Motion in December 2012 seeking to modify child support based upon this changed custody arrangement.
The mother submitted an opposing Certification disputing all of the material facts set forth by the father. She alleged that the arrangement whereby Jeremy began to reside with his father was only temporary in nature, intended to end when she graduated from the police academy in December 2012. She also alleged that Jeremy was frequently exposed to violence at the father’s home and that she feared for his well-being. She requested that Jeremy return to her home to reside with her primarily. The father responded with a Reply Certification, in which he claimed that the mother had a confrontational parenting style and alleged that she utilized physical measures and threats to discipline Jeremy.
The ensuing litigation, as the Appellate Division observes, was conducted by the Family Part with a great deal of informality. In total, the trial judge held three hearings, in which the parties were technically “sworn” but were not subject to cross-examination and in which the attorneys were permitted to present both argument and testimony. The judge interacted with the parties on the record in a highly informal manner, asking questions and receiving material and conflicting factual assertions in response. The Appellate Division observed that the environment that resulted was more akin to a mediation session than an adjudicative hearing.
At the conclusion of the first hearing on December 21, 2012, the trial judge stated that he was inclined to continue the terms of the Consent Order, which gave the mother primary custody of Jeremy. He scheduled the matter for a second hearing on January 10, 2013, to address the specifics of the father’s parenting time schedule. At the second hearing, the father’s attorney requested that the Court interview the then 14-year-old child and conduct a testimonial hearing. The father repeatedly alleged, as he had alleged at the first hearing, that Jeremy did not want to be with his mother. The trial court declined to interview the child or conduct a testimonial hearing. Instead, he ordered “split custody” whereby the parties would have equal time with their son.
Following the second hearing, the mother filed an Order to Show Cause, alleging that the father refused to honor her parenting time with Jeremy. She asked the Order to Show Cause judge (a different judge than the judge who conducted the prior two hearings) to issue a warrant for the father’s arrest if he failed to comply with the emergent relief she was seeking. The Order to Show Cause judge awarded the mother custody of Jeremy “until further Order,” and scheduled the matter for a hearing before the original judge on January 24, 2013.
On January 24, 2013, the trial judge conducted a third hearing. The father’s attorney reiterated that Jeremy did not want to be with his mother and was refusing to follow the terms of the parenting time schedule previously ordered. The trial judge stated that he did not want to interview Jeremy because he wanted to spare the child the emotional trauma associated with the Court dispute, but stated that either party could file an application seeking for the Court to interview Jeremy. He continued the equal parenting time schedule previously ordered.
On January 31, 2013, the father filed a Motion requesting that the Court reconsider the current shared custody Order, compel the parties to attend mediation, and interview Jeremy. The trial judge declined to interview Jeremy and reaffirmed his last custody and parenting time Order.
On appeal, the father argued that the trial judge erred in failing to order the parties to submit to mediation and in failing to consider the factors outlined in N.J.S.A. 9:2-4.
The Appellate Division began its analysis by reaffirming that the “best interests” of the child was the central issue of the dispute. It noted that, “absent exigent circumstances, changes in custody should not be ordered without a full plenary hearing.” Here, the trial court did not apply or consider any of the relevant statutory standards to determine if a change in custody was in Jeremy’s best interests. Accordingly, a remand was necessary.
With regard to mediation, R. 5:8-1 states, “[i]n family actions in which the court finds that either the custody of children or parenting time issues, or both, are a genuine and substantial issue, the court shall refer the case to mediation in accordance with the provisions of R. 1:40-5.” It appears this procedure was not followed in this case. The Appellate Division further added that a trial court considering a request for a change in custody should enter a Case Management Order “1) identifying the issues the mediator should address to resolve the parties’ custodial dispute; and 2) setting an initial two-month deadline to report back as required under R. 5:8-1, with the proviso that this time period can be extended on good cause shown.” The Appellate Division further directed that the Case Management Order must give a clear and definitive date upon which the mediation process will end.
With regard to the issue of Jeremy’s custody, the Appellate Division recommended that the trial court consider appointing, pursuant to R. 5:3-3(b), a mental health professional to evaluate the psychological and emotional state of Jeremy and his parents. Concerning the issue of an interview of Jeremy, R. 5:8-6 states:
Where the court finds that the custody of children is a genuine and substantial issue, the court shall set a hearing date no later than six months after the last responsive pleading. The court may, in order to protect the best interests of the children, conduct the custody hearing in a family action prior to a final hearing of the entire family action. As part of the custody hearing, the court may on its own motion or at the request of a litigant conduct an in camera interview with the child(ren). In the absence of good cause, the decision to conduct an interview shall be made before trial. If the court elects not to conduct an interview, it shall place its reasons on the record. If the court elects to conduct an interview, it shall afford counsel the opportunity to submit questions for the court’s use during the interview and shall place on the record its reasons for not asking any question thus submitted. A stenographic or recorded record shall be made of each interview in its entirety. Transcripts thereof shall be provided to counsel and the parties upon request and payment for the cost. However, neither parent shall discuss nor reveal the contents of the interview with the children or third parties without permission of the court. Counsel shall have the right to provide the transcript or its contents to any expert retained on the issue of custody. Any judgment or order pursuant to this hearing shall be treated as a final judgment or order for custody.
In this case, the trial court did not comply with this Rule. Particularly given Jeremy’s age, alleged emotional maturity, and alleged intellect, the trial judge was required to have taken into account Jeremy’s desires–or, at the very least, to provide on the record specific reasons why it elected not to interview Jeremy.
Observation: In a case where there is no mental health expert and no guardian ad litem for the child, and the parties disagree as to what the child wants, how can the Court determine the preference of this 14 year old child which is one of fourteen factors the Court is required to consider in making an award of custody? N.J.S.A. 9:2-4(c).
This case was an FD matter, which again calls into question how substantive issues are treated in that forum. Our courts cannot become the proverbial “tale of two cities” with one procedure being utilized in dissolution matters and a different procedure employed in non-dissolution cases.
Madison v. Davis, 438 N.J. Super. 20 (Ch. Div. 2014)
Issue: Where the parties each have joint legal custody, does the primary residential custodian of a child have absolute authority in regards to choosing and enrolling that child in a particular pre-school program?
Holding: No. The primary residential custodian has the initial right to select a pre-school program for their child. However, the non-custodial parent does have rights regarding this issue, including the right to investigate, evaluate and challenge the primary custodian’s program selection.
Discussion: After a four-year marriage and a year of contentious litigation, the plaintiff C. Madison and the defendant W. Davis divorced in 2013. The parties share joint legal custody of their three-year-old child, L.D., with the plaintiff acting as the primary residential custodian.
At the time of divorce, L.D. was attending day care at a pre-school which both parties agreed to equally share the cost of. However, the settlement agreement contained no explicit agreement that the plaintiff was obligated to permanently use the services of this particular daycare. There were no explicit restrictions or limitations against the plaintiff electing to change pre-school providers either. The agreement further stipulated that once the child reached “school age,” the defendant would be authorized access to all information from the school regarding L.D.’s education and progress.
Shortly after settling their divorce litigation, the parties commenced post-judgment litigation related to L.D.’s pre-school provider. The plaintiff chose to switch the child to a new pre-school of similar cost and location to the first program, but with more opportunities, such as swimming lessons, available for the child. The defendant objected, arguing that the plaintiff wanted to switch the child to a new school because the director of the first program allowed the defendant to sign the child out with the plaintiff’s prior knowledge or consent. The parties’ inability to compromise eventually led to a legal dispute over the comparative rights of each parent in choosing a pre-school for their child.
The defendant argued that joint legal custody grants both parties equal rights on education issues, that pre-school attendance is an education issue, and that the plaintiff violated the defendant’s rights by changing the child’s pre-school without his explicit consent. Further, the defendant relied heavily on Beck v. Beck, 86 N.J. 480 (1981) in order to bolster his argument that parents sharing joint legal custody under N.J.S.A. 9:2-4 have “equal rights and responsibilities regarding the care, nurture, education and welfare of their children.”
The plaintiff contends that the principle is meant to apply specifically to significant education issues once the child reaches school age and begins attending class in a regular education program (kindergarten through twelfth grade, and potentially college). She further argues that this principle cannot reasonably apply to pre-school, as it is not a major educational decision. She also turns to Pascale v. Pascale, 140 N.J. 583 (1995) in support of her argument that the primary residential custodian is generally responsible for many facets of the child’s day-to-day life including arranging alternative care such as daycare.
The Court first examined the parties’ reliance on Pascale and Beck. Upon review, the Court found that neither case was factually relevant to the issue of pre-school enrollment and responsibility. Beck does not hold that all educational decisions, including pre-school, must be made by both parents jointly. It also does not state that the non-custodial party can prevent a switch of daycare providers simply by withholding consent. Pascale makes no mention of pre-school either. It has no relevant considerations to situations, such as this one, wherein a day-care provider doubles as a pre-school and educational provider. It also does not hold that the primary residential custodial has unilateral power to change a child’s existing daycare arrangements. Ultimately the Court found that the issue of parental obligations and rights as they relate to a child’s attendance at pre-school is unprecedented.
Turning to the facts of this case, the Court took note that choosing a pre-school, while not legally mandatory, is still often a necessity for parents, especially when both parents work full time. In this case, the divorced parties have encountered a number of different disputes in regards to their child’s pre-school education including: (1) which pre-school should the child attend; (2) what hours are work-related as opposed to non-work-related and; (3) should day care contribution be reduced if one parent is available to watch the child from time to time when pre-school is in session? These disputes are made even more complex by the fact that both parties are highly hostile towards one another.
The Court, recognizing this case as one that concerns the welfare of a child, was obligated to act under parens patriae jurisdiction in order to ensure that the child’s best interests were put ahead of the parties’ inability to compromise. Further, the Court established a seven-step process in order to aid parents who face this sort of post-judgment conflict in the future as follows:
1 When a pre-school program is being used to fill a need for work-related daycare, the primary residential custodian has the initial right to select the program, or to transfer the child to another program.
2 The primary residential custodian does not have unlimited or absolute authority on this decision. Their proposed pre-school must be reasonable in regards to cost, location, accessibility, hours of operation, curriculum and any other extra services. Essentially, their choice cannot place an unreasonable burden on the other party.
3 Notwithstanding restraining orders or the like, the primary residential custodian has an obligation to supply the non-custodial parent with timely notification of proposed changes to the child’s pre-school education.
4 The non-custodial parent holding joint legal custody has the right to investigate and evaluate the merit of the proposal set forth by primary residential custodian. However, the non-custodial parent does not have absolute and unlimited authority to block or veto the proposal. If the non-custodial parent takes issue with the reasonableness of the residential custodian’s proposal, then he or she may file a motion with the court. The burden of proof lies with the non-custodial parent who must convince the court by a preponderance of evidence that the custodial parent’s proposal is unreasonable and contrary to the child’s best interests.
5 If the non-custodial parent chooses to commence motion practice, he or she must articulate a more reasonable alternate plan for providing day care for the child.
6 Depending on whether the court determines if the custodial parent’s proposal is unreasonable, the court may order that alternate arrangements be made in order to provide day care for the child. If the court finds that the proposal is reasonable, it may order that the non-custodial parent comply.
7 The court may issue financial sanctions against either party if the court finds their actions to be unreasonable.
With this process, the court then returned to the case before it. In examining the plaintiff’s proposal, the court found that the plaintiff/residential custodian exercised reasonable parental discretion. The former day-care provider and the proposed provider were found to be similar in cost, location and services. Further, the defendant failed to demonstrate that the switch of schools was unreasonable, or contrary to the child’s best interests. Ultimately, the court upheld the plaintiff’s proposal for a new pre-school, and also ordered that both parties equally contribute to the tuition of the new school.
Observation: This case manifests the ongoing dispute playing out in our courts between the rights of parents holding joint legal custody versus the rights of the parent of primary responsibility/primary caretaker/primary residential custodian. The promise of equal rights and responsibilities regarding the care, nurture, education, and welfare of children under joint legal custody as defined in Beck, has been undercut over the years. Today, in many instances, the parent of primary residence holds the edge and becomes the tie breaker, if you will, when parents with equal rights are in dispute. In Pascale, the Supreme Court stated that in a joint legal custodial relationship, the residential custodial parent “is afforded somewhat more authority to decide issues in the event of a disagreement, and may discharge such responsibilities subject to notification to, and dialogue with, the non-custodial parent who also has joint legal custody.”
Id. at 606. As the trial attorney in Pascale representing the Husband, I can tell you that it was never the intention for the primary caretaker status to evolve into the eventual tie breaker over legitimate disputes between parents holding joint legal custody. In my opinion, this evolution has resulted in more litigation as parents recognize that joint legal custody does not guarantee equality. This has provoked unnecessary litigation over physical custody and/or in the battle over the language defining joint legal custody in order to avoid one parent holding the trump card over the other.
Clementi v. Clementi, 434 NJ. Super. 529.
(Ch. Div. 2013) (approved for publication February 12, 2014)
Issue: When a defaulting defendant fails to participate in a divorce proceeding, is the plaintiff automatically entitled to 100% of the relief she requests in her proposed final judgment?
Holding: No. Notwithstanding the default, the plaintiff has an obligation to demonstrate to the court, by a preponderance of the evidence, that her requests for relief are fair and equitable. The defendant’s failure to object to the plaintiff’s proposed equitable distribution is not necessarily the same as an express written consent, and generally cannot be the sole and exclusive basis for a court to determine that the proposal is fair, reasonable, and equitable. However, the defendant’s failure to object is one factor the court may consider in determining the overall reasonableness of the plaintiff’s proposal for equitable distribution. Finally, the value of a marital asset relative to the remainder of the marital estate is a legitimate and significant factor for the court to consider in determining whether the defaulting party may lose all interest in such asset.
Discussion: The plaintiff, Gayle Clementi, was married to the defendant, Frank Clementi, for nearly forty (40) years when she filed for divorce in March 2013. The parties had no children and operated a store jointly as their primary source of income and employment. The plaintiff sought equitable distribution of assets and debts as well as alimony in her Complaint.
The defendant failed to participate in the divorce proceedings. On April 29, 2013, the defendant was served with the plaintiff’s Complaint by the Ocean County Sheriff’s Department. He failed to file a responsive pleading within 35 days or thereafter, and the plaintiff accordingly filed a request to enter default on June 7, 2013. The defendant did not file a motion to vacate the default or otherwise to participate in the litigation.
In the first week of July 2013, the plaintiff properly filed and served upon the defendant a Notice of Proposed Final Judgment in accordance with R. 5:5-10 along with a Case Information Statement. At the default hearing on August 13, 2013, the plaintiff appeared in court with counsel. The defendant did not appear. The plaintiff offered her Notice of Proposed Final Judgment and Case Information Statement into evidence.
The plaintiff’s Notice of Proposed Final Judgment indicated that she sought sole ownership of the parties’ largest asset, the marital home. The home had no mortgage and was estimated to be valued at approximately $200,000.00. The defendant filed no objection or response to this proposal, and did not appear at the scheduled proceeding.
While a failure to respond and entry of default may potentially bar a defendant from fully participating in a divorce proceeding, and may arguably be evidence of consent, the family court still ultimately maintains the authority to adjudicate equitable distribution in a manner which is fair under the circumstances. In a default proceeding, the court still must receive additional information and evidence from the participating plaintiff so the court may learn more about the financial circumstances of the parties before rendering a judgment.
It is the plaintiff’s burden to establish by a preponderance of the available evidence that the proposed distribution of assets and debts by way of default is equitable. (Notably, there are some circumstances where the burden of proof may appropriately shift to the defendant, such as if the defendant is in exclusive possession and control of the books and records of a business. However, in this case, the plaintiff was in possession and control of the available evidence relevant to her request concerning the former marital residence). In assessing the plaintiff’s request for equitable distribution, the court must apply the equitable distribution factors set forth in N.J.S.A. 2A:34-23.1. In the context of a default proceeding, the court may consider the defendant’s failure to appear and object as a specific additional factor–but it is not the only factor to be considered.
In this specific case, the trial court determined that there was insufficient evidence before it to fully analyze the plaintiff’s request. Accordingly, the court rescheduled the hearing to a later date wherein the plaintiff would be required to carry the burden to prove by a preponderance of the evidence that her request to retain the former marital residence is fair and equitable.
Observation: Default in a Court of equity is far different than default in a Court of law. As a Chancery Court, the Family Court must divide assets and debts fairly, reasonably, and equitably. To automatically grant the plaintiff her requests merely because the defendant fails to engage in the relevant proceedings would compromise the court’s ability to act in accordance with this goal. Therefore, even in default proceedings, attorneys and litigants must come to court prepared to put on proofs to establish why the relief requested in the Notice of Proposed Final Judgment is fair.
While this may seem like an added burden, recall that the mere entry of default does not bar the defendant from appearing at the default hearing and contesting plaintiff’s relief (in such circumstances defendants are barred from putting in affirmative evidence). The point being: as you can never tell whether a defendant will appear, Clementi reinforces the need for plaintiffs to come prepared for a default hearing. Especially in this case, where one party was effectively seeking 100% of a marital asset, there needs to be some level of justification for this relief.
* Judge Lawrence R. Jones of Ocean County is well on his way to becoming the most prolific writer of published trial court opinions in Family Part cases since the late great Hon. Conrad W. Krafte of Bergen County. In addition to Clementi and Madison, Judge Jones has written other opinions that were published and has made the top 10 list for several years now.
I wish to thank my associate, Cassie Ansello, Esq. for her assistance in the preparation of this article.