Without doubt, 2015 was a relatively lean year for reported family law opinions. Gnall v. Gnall, which was one of the most important Appellate Division decisions in recent years was taken up by the New Jersey Supreme Court. This decision was destined to be a landmark, attracting amicus curie filings by the American Academy of Matrimonial Lawyers, the Matrimonial Lawyers Alliance, and the Family Law Section of the New Jersey State Bar Association. By the time it was reported in 2015, however, Gnall was completely eclipsed by the new alimony statute which closed the curtain on permanent alimony.

As in prior years, in 2015 Judge Marie E. Lihotz and Judge Lawrence R. Jones authored multiple reported family law opinions, some of which made the top ten. As a whole, however, it seemed as if the reported opinions were in a holding pattern awaiting the development of case law to interpret the new alimony law and other statutory changes of recent years.

The following are my selections for the ten most important reported family law cases decided in 2015. 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.

Gnall v. Gnall, 222 N.J. 414 (2015)

Issue: Is it appropriate to deny permanent alimony and award limited duration alimony based upon a marriage of 15 years?

Holding: Depending on the circumstances, yes. There is no bright line rule by which the length of a marriage necessarily dictates an award of permanent alimony.

Discussion: The parties were married on June 5, 1993 and the Complaint for Divorce was filed in 2008, following a nearly 15-year marriage. At the time of trial, both parties were 42 years old.

At the time of the marriage, the wife had a bachelor’s degree in electrical engineering and a Master’s degree in computer science. During the marriage, she worked as a computer programmer through 1999 earning as much as $115,000.00 per year, at which time the parties decided that she would stay at home with their children. In 2006, the wife faced serious health issues and underwent brain surgery. Subsequently, she was able to resume a normal life with only minor facial paralysis.

The husband holds an accounting degree and Certified Public Accountant license. He is currently employed as Chief Financial Officer of Deutsche Bank’s Finance Division in America, and earns over $1,000,000.00 annually. Since 1999, he was the sole wage earner of the family.

At the time of the Judgment of Divorce, the three children were aged 12, 11, and 8. The wife was designated as the primary caretaker of the children.

At trial, the wife presented expert testimony which concluded that the expenses of the wife and three children totaled $18,578.00 per month. Both parties presented expert testimony concerning the wife’s ability to earn. The husband’s expert opined that the wife would be able to obtain an entry-level position earning between $58,000.00 and $69,000.00 per year, following 8 to 12 weeks to update her skills, and that she could thereafter rapidly increase her earnings to align with the national average of $80,000.00 to $94,000.00 annually as a computer programmer. The wife’s expert opined that she needed at least one to two years of training before she would be able to obtain employment. Following retraining, the wife’s expert opined that the wife could be expected to earn between $50,623.00 per year and $56,765.00 per year.

The trial court concluded that the marriage “certainly was not short term, but neither [was it] a twenty-five to thirty-year marriage.” Moreover, the trial court determined that “the parties were not married long enough” for the husband to be responsible for the wife’s ability to maintain their marital lifestyle. The trial court reasoned that the parties were relatively young, with at least 23 career years ahead of them; both were well-educated; both were in good health; and both were either employed or employable at good salaries that could support their lifestyles. The trial court imputed income to the wife of $65,000.00 gross per year, and awarded the wife 11 years of limited duration alimony at $18,000.00 per month.

In a published opinion, the Appellate Division reversed the trial court’s award of limited duration alimony and remanded the case for an evaluation of an award of permanent alimony. Gnall v. Gnall, 432 N.J. Super. 129 (App. Div. 2013). In making its determination, the Appellate Division stated that it did “not hesitate to declare a fifteen-year marriage is not short-term, a conclusion which precludes consideration of an award of limited duration alimony.”

The Supreme Court confirmed that the applicability of permanent alimony is to be assessed first. In the event the trial court determines that an award of permanent alimony is not warranted, the court must make specific findings identifying its reasoning. The Supreme Court cited with approval Cox v. Cox, 335 N.J. Super. 465 (App. Div. 2000) that “all other statutory factors being in equipoise, the duration of the marriage marks the defining distinction between whether an award of permanent or limited durational alimony is warranted and awarded.” Id. at 483.

Concerning the facts of this case, the Supreme Court concluded that the trial court did not consider and weigh all of the statutory factors, but instead based its decision solely on one factor, i.e., the duration of the marriage. The trial court centered its decision on its view that permanent alimony awards were reserved for long-term marriages of 25 years or more. Furthermore, the Supreme Court concluded that the Appellate Division erred in inadvertently creating a bright-line rule when reversing the trial court. By not clarifying that the statement “we do not hesitate to declare a fifteen-year marriage is not short-term, a conclusion which precludes consideration of an award of limited duration alimony” was only intended to address this particular case, the Appellate Division made a generally applicable declaration. All 13 factors of the statute must be considered and given due weight, and the duration of the marriage is only one factor to be considered.

The Court thus reversed the Appellate Division but nevertheless remanded the matter to the trial court for new findings of fact and a new determination of alimony.

Observations: The Appellate Division decision in Gnall v. Gnall was one of the most important decisions of 2013, and its review by the Supreme Court was eagerly anticipated by the matrimonial bar. In the end, the decision was completely eclipsed by the New Jersey State Legislature which amended N.J.S.A. 2A:34-23(c) on September 10, 2014 to provide that “for any marriage or civil union less than 20 years in duration, the total duration of alimony shall not, except in exceptional circumstances, exceed the length of the marriage or civil union….” The permanent alimony which was addressed in Gnall no longer exists.

Looking down the road, practitioners await guidance from the courts in interpreting the new alimony statute. Among many others, two important legal issues will need to be addressed:

What constitutes exceptional circumstances? Under the new law, the only way a marriage of less than 20 years can qualify for open durational alimony is if exceptional circumstances exists. The statute sets forth the following exceptional circumstances which may require an adjustment to the duration of the alimony:

  •         The ages of the parties at the time of the marriage or civil union and at the time of the alimony award;
  •         The degree and duration of the dependency of one party on the other party during the marriage or civil union;
  •         Whether a spouse or partner has a chronic illness or unusual health circumstance;
  •         Whether a spouse or partner has given up a career or a career opportunity or otherwise supported the career of the other spouse or partner;
  •         The age, physical and emotional health of the parties;
  •         Whether a spouse or partner has received a disproportionate share of the marital estate;
  •         The impact of the marriage or civil union on either party’s ability to become self-supporting, including but not limited to either party’s      responsibility as primary caretaker of a child;
  •         Tax considerations of either party; and
  •         Any other factors or circumstances that the court deems equitable, relevant and material.

Under the new law, alimony cannot exceed the length of the marriage. However, in a marriage less than 20 years where exceptional circumstances do not exist, what relationship if any is there between the duration of the marriage and the limited duration alimony term? In other words, to ask the question harkening back to Gnall, how many years of alimony would be awarded in a 15 year marriage today? The statute sets forth that the determination of the length and amount of alimony shall be made upon considering the 14 factors of which duration of the marriage is only one factor:

  •         The actual need and ability of the parties to pay;
  •         The duration of the marriage or civil union;
  •         The age, physical and emotional health of the parties;
  •         The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living, with neither party having a greater entitlement to that standard of living than the other;
  •         The earning capacities, educational levels, vocational skills, and employability of the parties;
  •         The length of absence from the job market of the party seeking maintenance;
  •         The parental responsibilities for the children;
  •         The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;
  •         The history of the financial or non-financial contributions to the marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;
  •         The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;
  •         The income available to either party through investment of any assets held by that party;
  •         The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment;
  •         The nature, amount, and length of pendente lite support paid, if any; and
  •         Any other factors which the court may deem relevant.


Given the above, is Gnall and Cox still good law such that “all other statutory factors being in equipoise, the duration of the marriage marks the defining distinction….”?

The statute does adopt a similar analysis of the alimony factors as set forth by the Supreme Court in Gnall: “In each case where the court is asked to make an award of alimony, the court shall consider and assess evidence with respect to all relevant statutory factors. If the court determines that certain factors are more or less relevant than others, the court shall make specific written findings of fact and conclusions of law on the reasons why the court reached that conclusion. No factor shall be elevated in importance over any other factor unless the court finds otherwise, in which case the court shall make specific written findings of fact and conclusions of law in that regard.” Put simply, all factors are of equal importance but the facts of each unique case may make some factors of greater importance than others.

Stay tuned.

Spangenberg v. Kolakowski, ___ N.J. Super. _____ (App. Div. 2015)

Issue: Does the amendment to N.J.S.A. 2A:34-23(n) relating to cohabitation apply to post-judgment Orders finalized before the effective date of the statute?

Holding: No. The legislative intent is clear that prior agreements executed, or final Orders filed, before adoption of the statutory amendments are not affected by the amendments.

Discussion: The parties were divorced in June 2012. Pursuant to their Marital Settlement Agreement (“MSA”), the parties agreed that the defendant/husband would pay to the plaintiff/wife $2,200.00 per month in alimony, calculated using imputed income to the wife of $45,000.00 and $125,000.00 to the husband. The wife agreed to inform the husband “when she [wa]s cohabiting with another,” which the parties agreed would trigger an alimony review “consistent with the Gayet case and evolving caselaw.” The parties also agreed to review the husband’s alimony obligation on June 7, 2014, based upon an acknowledged expectation that the wife’s income would increase by that time.

Prior to the June 7, 2014 review, the husband moved to modify his alimony obligation, alleging that the wife was cohabiting. The wife admitted that she moved into her boyfriend’s residence on August 31, 2013. Following a review of the submissions and testimony of the parties, the trial court entered an Order finding that the wife received an economic benefit from the cohabitation and therefore, reduced the alimony payable from the husband to the wife from $2,200.00 per month to $1,350.00 per month.

Thereafter, the husband filed a Motion for Reconsideration seeking to review the wife’s need for alimony, which was denied on March 26, 2014. On July 21, 2014, the husband filed a Motion to modify or terminate alimony based upon the MSA’s two-year review provision, which the trial court denied. Thereafter, the trial court again denied the husband’s Motion for Reconsideration on November 7, 2014. The husband then appealed, arguing that the trial court ignored the amendments to the alimony statute addressing cohabitation.

The Appellate Division confirmed that courts generally enforce newly-enacted statutes prospectively, unless the statute clearly expresses a different intent. Although the amendments to the alimony statute themselves are silent except to state that the amendments are effective immediately (i.e., September 10, 2014), the legislative history accompanying the alimony amendments was clear. Specifically, the bill adopting the new law stated that the act “shall not be construed either to modify the duration of alimony ordered or agreed upon or other specifically bargained for contractual provisions that have been incorporated into: a. a final judgment of divorce or dissolution; b. a final order that has concluded post-judgment litigation; or c. any enforceable written agreement between the parties.”

As the husband’s initial application seeking to reduce his alimony obligation based upon the wife’s cohabitation was made final before the statutory amendment’s effective date, the new cohabitation provisions do not apply to this case or otherwise impact the alimony determination.

Observations: N.J.S.A. 2A:34-23(n) provides that “alimony may be suspended or terminated if the payee cohabits with another person.” Although alimony was modified by the trial court in Spangenburg, the question not addressed is whether the new statute now makes cohabitation an all or nothing situation (i.e. alimony can be terminated or suspended but not modified due to cohabitation).

Spangenburg received a modification but attempted to invoke the statute to receive greater relief. Judge Lihotz makes clear that the statute is not to be given retroactive application relying on the legislative history accompanying the statute: “This act shall take effect immediately and shall not be construed either to modify the duration of the alimony ordered or agreed upon or other specifically bargained for contractual provisions that have been incorporated into:

  •     final judgment of divorce or dissolution;
  •     a final order that has concluded post-judgment litigation; or
  •     any enforceable written agreement between the parties.”

The question is, had the husband waited until September 10, 2014 to file his cohabitation motion, would this case have been decided differently? Would alimony have been suspended or terminated, as opposed to merely reduced? Is the statute to be interpreted to mean that the Lepis v. Lepis 83 N.J. 139 (1980) change in circumstances style modification has now been crowded out of the law of cohabitation?

Again, stay tuned.

Elrom v. Elrom, 439 N.J. Super. 424 (App. Div. 2015)

Issue 1: May a court impute income to a party for purposes of calculating alimony and child support, when that party is already employed full-time?

Holding 1: Yes. In assessing a party’s capacity to earn, a court must examine the party’s field of expertise, employment and salary history, and job availability. Conversely, the court must also consider the needs of the children as those needs impact a party’s ability to earn.

Issue 2: May a court require an obligor to contribute to child care and extracurricular activity expenses, above and beyond the weekly child support sum he or she is ordered to pay?

Holding 2: Yes. However, in this case, the trial court’s decision to require the obligor to contribute to child care and extracurricular activity expenses above his child support obligation was insupportable, as the trial court failed to reduce the obligee’s imputed income by her share of the child care expenses, and the trial court failed to explain why it deviated from the Child Support Guidelines.

Discussion: The plaintiff and the defendant were married in February 2005 before separating in September 2010. During the marriage, the parties had two children, in 2008 and 2010. The parties agreed that the plaintiff was to be the parent of primary residence following the divorce.

The plaintiff is an attorney, licensed to practice in New York and New Jersey. In 2005, at the time of the parties’ marriage, she earned an annual salary of $102,000.00 gross. Soon thereafter, she took a position in New York, earning $175,000.00 per year gross. In early 2008, prior to the birth of their first child, the plaintiff was laid off. The parties subsequently decided that she would stay home to care for the children and potentially work part-time. In 2009, the plaintiff began to work part-time, approximately 10 to 15 hours per week. At the time of their separation in 2010, the plaintiff was earning $67.50 per hour, working 26 hours per week (approximately $1,755.00 gross per week, or $91,260.00 per year). Thereafter, the plaintiff obtained a job earning $80,640.00 gross per year, but she lost the job prior to trial. At trial, the plaintiff alleged that her child care obligations required her to search for employment in New Jersey, and she asked the court to impute to her a salary of $80,640.00 gross per year.

The defendant is a software engineer, technical writer, web developer, and entrepreneur. His work experience prior to the divorce included positions with Sigma, HBO, Weight Watchers and MTV. During an earlier non-dissolution matter, the defendant’s income as a consultant to HBO was $193,375.00 gross per year. Prior to trial, the defendant changed jobs and obtained employment as the chief technical officer for ChatAnd Inc., earning a base salary of $120,000.00 gross per year but with potential to earn as much as $295,000.00 gross per year. He also owned Elrom, LLC, which specialized in consulting services, sponsored an annual trade show, and worked with several other start-up companies. As of the time of trial, the defendant had lost his employment with ChatAnd.

At trial, the plaintiff produced a number of documents demonstrating that the defendant had received income from clients “on the side” and royalties from books that he authored. She also discovered that the defendant owned a company based in Las Vegas called Effective Idea, LLC and had been transferring money from the Elrom, LLC bank account into a separate bank account. The defendant stipulated the account held nearly $70,000.00. The plaintiff described the marital lifestyle to be “upper middle class” to “lavish.”

The plaintiff hired a forensic accountant, who examined deposits into the parties’ bank accounts to calculate the defendant’s annual income. He concluded that the deposits into the Elrom, LLC bank account over a three year period amounted to $903,241.00. He opined that approximately 70% to 80% of that total was profit, after reducing the total deposits by 20% to 30% to account for overhead costs.

The defendant hired a forensic employability expert who addressed the potential earnings of the parties. The expert concluded that the defendant was likely to earn an estimated $120,000.00 gross per year as a software engineer and technical writer. His investigation was based on a review of the defendant’s resume and a telephone interview with the defendant, and did not consider the defendant’s ChatAnd employment contract or the defendant’s earning capacity as a consultant. The expert also opined that the plaintiff’s earnings capacity ranged from $108,740.00 gross per year to $177,850.00 gross per year, primarily for employment in New York. The expert did not interview the plaintiff or factor the plaintiff’s child care responsibilities into his analysis.

The defendant also presented testimony from a recruiter in the information technology field. The recruiter asserted that the defendant could earn $100,000.00 gross per year to $150,000.00 gross per year as a full-time engineer.

Testimony during the trial revealed that the defendant’s total income in 2010, comprised of salary plus consulting income, was $252,000.00 gross. In 2011, the defendant earned $206,000.00 in consulting fees and had gross receipts of $252,000.00.

Following the trial, the trial court awarded the plaintiff limited duration alimony of $1,000.00 per week for three years. The trial court also ordered the defendant to pay child support in the amount of $697.00 per week, which included work-related child care, plus 50% of the children’s unreimbursed medical expenses and 50% of the children’s extracurricular expenses. In establishing this support obligation, the trial court found that the plaintiff’s income was represented by her last full-time job as an associate in New Jersey, and imputed $80,640.00 gross per year in income to her. The trial court rejected the defendant’s contention that he should be imputed an annual income of $120,000.00, and imputed income to the defendant of $230,731.42 per year by calculating a three year average of his gross receipts and discounting the sum by 20% for expenses.

After both parties’ Motions for Reconsideration were denied by the trial court, the defendant appealed the trial court’s determinations.

The first issue the Appellate Division considered was the trial court’s imputation of income to both parties. The defendant argued that imputation of income only applies to parties who, without just cause, are intentionally and voluntarily unemployed or underemployed; and because he was working, the principle of imputation of income was inapplicable and his salary should be accepted as his appropriate earning level.

The Appellate Division rejected this argument as legally insufficient, and confirmed that the trial court is authorized to impute income for the purpose of determining child support or alimony, when a party is found to be voluntarily unemployed or underemployed without cause. Here, the defendant was indeed unemployed at the time of trial. Further, the trial court specifically found that the defendant was not credible in attempting to portray himself as lacking the skills and education to sustain an approximate salary of $250,000.00 gross per year. The trial court also rejected the testimony of the defendant’s two experts, who ignored the fact that the defendant’s actual earnings exceeded their hypotheses of his earnings capacity.

Conversely, the Appellate Division upheld the trial court’s determination to impute income to the plaintiff of $80,640.00 gross per year. The plaintiff had not worked full-time in New York since 2008, and subsequent to that time, the parties had two children. One child, age seven, had special medical needs due to a severe food allergy, and the other child was age four. The defendant’s parenting time with the children was limited to 7.5 hours every two weeks, leaving to the plaintiff the primary responsibility to care for the children. The trial court concluded that the plaintiff’s decision to limit her employment search to New Jersey, so that she could be close to the children, was reasonable.

The second issue the Appellate Division considered was the trial court’s decision to compel the defendant to contribute to child care expenses the plaintiff incurred when she was unemployed, and to contribute to one half of the children’s extracurricular activities, above his weekly child support obligation.

As for child care, the Child Support Guidelines do not sanction child-care expenses as additional support when a party is unemployed. Instead, that parent’s share of child care costs necessary to allow that person to work outside the home shall be deducted from the imputed income. Therefore, to count the child care expense twice is an impermissible “double dip.” In this case, the costs of child care could be added as additional support once the plaintiff resumes employment.

As for extracurricular expenses, Child Support Guidelines support may be supplemented by Court-approved extraordinary expenses (recurring or non-recurring). Use of the Child Support Guidelines is rebuttable, and a trial court may modify the Guidelines on “good cause shown.” However, here, the trial court did not explain why she deviated from the Child Support Guidelines in requiring the defendant to contribute to child care and extracurricular activity costs above the Child Support Guidelines, and accordingly, the issue was remanded to the trial court.

Observations: The dispute here is “potential earning capacity” versus “actual income.” The fact that the defendant was working and earning $120,000.00 per year does not foreclose inquiry into whether he is capable of earning much more – especially here where he had earned $200,000.00 to $300,000.00 in the immediate past.

Note this case makes clear that in assessing a person’s earning potential, the responsibility to care for a child is relevant and could change the calculus. Here although the wife could earn $175,000.00 per year working as an attorney in New York City, the court felt it appropriate to only impute $80,000.00 per year, her salary working as an attorney in New Jersey.

The expenses for the child that are and are not included in a child support award under the Child Support Guidelines are often in dispute. Regardless of what the guidelines say is included, remember that the guidelines are rebuttable for good cause. If the facts of the case suggest that the court should deviate from the guidelines, good lawyering requires that such an argument be made.

O.P. v. L.G.-P, 440 N.J. Super. 146 (App. Div. 2015)

Issue: May a trial court enforce a provision contained within a Property Settlement Agreement (“PSA”) which requires mediation and frequent contact between parties, when a Final Restraining Order (“FRO”) prohibiting contact between the parties was entered after the entry of the PSA?

Holding: No. When parties agree to mediation at the time of divorce, they do not anticipate the subsequent entry of an FRO. For reasons of safety, and to conform with the strong public policy in New Jersey, mediation should not be ordered after a subsequent FRO has been entered, even in an effort to conform with the provisions of a PSA.

Discussion: The parties married in 2006 and had their only a child a year later. In their 2009 PSA, they agreed that the husband would pay 40% of various child-related expenses, including unreimbursed medical expenses, medical and dental insurance premiums, school expenses, extracurricular activities, and expenses related to an au pair for the child, above the weekly child support he paid to the wife. By virtue of these provisions, the parties were constantly required to communicate with one another about expenses incurred and reimbursements owed. Pursuant to the terms of their PSA, if the parties were unable to resolve their disputes, they agreed to mediate the issues before seeking Court intervention.

However, following the entry of the PSA, in 2010, the wife obtained an FRO against the husband. After the entry of the FRO, when the parties returned to Court on a contested motion, the Court ordered them to engage in mediation to resolve their disputes. The parties thereafter worked with a mediator, but the mediator ultimately ended her private practice. Thereafter, the wife filed another Motion in August of 2013, seeking reimbursement from the husband for his share of various child-related expenses, most involving no more than a few hundred dollars. The wife requested that the requirement that the parties mediate their disputes before coming to court be eliminated as the husband had released their prior mediator and mediation had not been helpful in resolving their prior disputes.

At oral argument, after granting some of the relief sought by the wife, the trial court urged the wife to amend the FRO to allow email communication between the parties, so that they could attempt to resolve their disputes. The Court also ordered the parties to attend mediation, consistent with the terms of the PSA.

On appeal, the Appellate Division reversed and remanded for a plenary hearing the trial court’s determination. The Appellate Division noted that the PSA engendered the disputes between the parties, as it required constantly changing payments from the husband to the wife instead of including the child’s extracurricular expenses in the monthly child support amount. Such a provision requires constant contact between the parties, which became impossible once the FRO was entered.

If an FRO contains a prohibition against contact between the parties, and the victim does not seek such contact, the trial judge should not suggest that the victim amend the no-contact provision. Neither should the trial court have ordered the parties to attend mediation. The Appellate Division noted R. 1:40-5, which precludes a trial court from compelling custody and parenting time mediation and economic mediation if a temporary or final restraining order is in effect. Although parties may contract to disregard settled law, here, the FRO was entered after the PSA. Therefore, provisions in the PSA that were reasonable at the time of the agreement may become unreasonable after the entry of an FRO. The Appellate Division noted that domestic violence aggressors often have an unhealthy need to control and dominate their partners. “Thus, even if mediation could be conducted in a safe environment, or the parties kept in separate rooms, and the parties are represented by counsel, the bargaining position of the parties could well be distorted by past violence.” Accordingly, mediation cannot be compelled by the trial court after the entry of an FRO, even if the trial court is simply seeking to enforce a mediation provision contained within the PSA.

The Appellate Division also directed the trial court on remand to craft a child support Order which encompasses the husband’s payment responsibilities set forth in the PSA, without the communication between the parties required in the PSA.

Observations: This case pits the strong public policy in favor of amicably resolving disputes versus the strong public policy in protecting victims of domestic violence. R. 1:40-5 addresses mediation in Family Part matters. R. 1:40-5(a)(1) addressing mediation of custody and parenting time actions and R. 4:40-5(b)(1) addressing mediation of economic aspects of dissolution actions both provide that “no matter shall be referred to mediation if a temporary or final restraining order is in effect in the matter pursuant to the Prevention of Domestic Violence Act (N.J.S.A. 2C:25-17, et. seq.) No one is saying that when there is an outstanding FRO nothing can be settled or agreed to and everything must be litigated to conclusion. However, in light of this case, where the parties wish to enter into mediation in the face of an existing TRO or FRO, practitioners should insist that the restraining order is amended to allow for the mediation – failure to do so could result in the settlement reached in mediation being overturned on grounds of coercion or duress (even if the parties are kept in separate rooms and have no contact through the mediation process.)

Costa v. Costa, 440 N.J. Super. 1 (App. Div. 2015)

Issue: Does a parent’s relocation to another country necessarily constitute a change of circumstances, potentially warranting a modification of joint legal custody?

Holding: No. While such a relocation ordinarily would constitute a change in circumstances relative to physical custody, joint legal custody does not require that the parents be in close geographic proximity to one another.

Discussion: The Costas were married in 1994 and subsequently had two children, one born in 1997, and the other in 2000. In 2006, the parties were divorced. Their Property Settlement Agreement provided that the parties would share joint legal custody of the children, with the plaintiff/mother to serve as the primary residential custodian while the defendant/father was entitled to parenting time.

The father moved to Brazil in 2009. The father maintained electronic communication with the children via telephone and electronic means, but discontinued visitation with them.

In 2013, the mother filed a Motion seeking sole legal custody, alleging that the process of obtaining the father’s authorization for the children’s travel out of the country was overly burdensome and placed unreasonable limits on the children’s ability to travel.

In response, the father claimed that he provided the mother with a travel authorization which would permit her to renew the children’s passports. After the mother told the father that the authorization was not accepted because it was not completed properly, he agreed to provide another authorization but was concerned about notary error. Thus, he expressly agreed for the court to grant the mother permanent permission to renew the children’s passports and allow them to travel without any future authorization from him. He further requested to retain joint legal custody so that he could stay involved in decisions pertaining to the children’s best interests.

The trial judge denied the mother’s Motion on the grounds that she had not met her burden to show a change in circumstances, nor had she demonstrated that joint legal custody was not in the children’s best interests.

On appeal, the Appellate Division held that the trial court did not abuse its discretion in finding no change in circumstances warranting a modification of legal custody. Although the parties encountered difficulties in obtaining a valid authorization permitting the children to travel abroad, the father had expressly agreed for the authorizations to be issued via Court Order.

The Appellate Division also rejected the mother’s claim that a parent’s relocation to another country in and of itself constitutes a change in circumstances. While such a relocation ordinarily would constitute a change in circumstances relative to physical custody, joint legal custody does not require that the parents be in close geographic proximity to one another. Even if geographic separation prohibits physical custody, modern technology can enable effective joint legal custody.

Observation: This case demonstrates how far we have come since the concept of joint legal custody was created by the Supreme Court in Beck v. Beck, 86 N.J. 480 (1981). Joint legal custody addresses not where the child resides, but the legal authority and responsibility for making major decisions regarding a child’s welfare. When Beck was decided, we did not have regular access to fax machines, cell phones, the Internet, texting, Skype, and an entire panoply of communication methods. These modern conveniences have made the argument that geographic proximity is necessary to preserve the joint decision making role of both parents a canard. With the advent of technology, Costa makes clear that it is feasible for a parent to actively engage in the decision-making and child-rearing responsibilities of a child, even while residing in another country.

It would appear that the genesis of this case is federal law which provides that children under 16 years of age cannot apply for a passport by themselves. Both parents must provide consent authorizing passport issuance for the child. In order for one parent to obtain a passport without the other party’s consent, that party must show a court order granting sole legal custody or a court order specifically granting that parent right to apply for the child’s passport.

State of New Jersey v. D.G.M., 439 N.J. Super. 630 (App. Div. 2015)

Issue: Can the act of sitting near and briefly filming a domestic violence victim constitute a violation of a “no contact or communication” provision of a Final Restraining Order (FRO)?

Holding: Yes. However, the defendant in this case should not have been convicted for this violation under the doctrine of lenity, as he was entitled to a fair warning of prohibited conduct before he could be found to have knowingly violated the FRO.

Discussion: In 2006, the defendant D.G.M. engaged in a short romantic relationship with a woman named Joan, which produced a child. In 2010, Joan filed a domestic violence complaint and obtained an FRO against the defendant which contained a standard provision prohibiting the defendant “from having any (oral, written, personal, electronic or other) form of contact or communication with” Joan.

On November 17, 2012, the defendant attended the child’s soccer game, at which Joan was also in attendance. At the game, the defendant approached Joan and came within a few feet of her. (The trial judge never made a definitive finding as to the specific distance between Joan and the defendant). The defendant then used his cellular telephone to videotape Joan, along with videotaping other things. The video was 100 seconds long in totality. The defendant pointed the cellular telephone at Joan for approximately three seconds and, when she turned to look at him, he abruptly turned away. The defendant then turned the cellular telephone back at Joan for another approximate five seconds.

The defendant was criminally charged with contempt for violating the FRO pursuant to N.J.S.A. 2C:29-9(b). At the conclusion of the trial, the trial judge convicted the defendant, finding that the recording was a form of contact in violation of the FRO.

On appeal, the Appellate Division considered whether the FRO prohibited the defendant from filming or photographing Joan–which in turn required the court to consider whether the defendant’s filming of Joan was a form of contact or communication. The Appellate Division found that the common meaning of the word “contact” to be “to get into contact or in touch with.” As for “communication,” its ordinary dictionary definition suggests that it should be understood in this context to be the “imparting, conveying, or exchange of ideas, knowledge, information, etc. (whether speech, writing or signs).” Unlike contact, to “communicate” does not require two individuals to be within a certain distance of one another.

The Appellate Division found that the defendant’s conduct constituted “communication.” The defendant violated the FRO because he was engaged in sending a message or conveying thoughts by pointing the cellular telephone camera at Joan. Although the message need not be intelligible or understandable to strangers, the defendant’s act of filming (or even simply staring at the victim) sends a message, which in many instances will be sufficiently alarming or annoying as to constitute a violation of the FRO. Accordingly, the Appellate Division held that a defendant restrained by a similarly-worded FRO engages in “communication” with the victim by pointing a camera at the victim from a position close enough for the victim to observe it.

Nonetheless, the Appellate Division reversed the conviction of the defendant in this particular case. The court noted the rule of lenity, which entitles an accused to “fair warning…of what the law intends to do if a certain line is passed.” Because no defendant would fairly be expected to know that filming or photographing a victim constitutes “contact” or “communication” until this case, this defendant was entitled to a reversal of his conviction.

Observation: See also the case of State of New Jersey v. S.K., 423 N.J. Super. 540 (App. Div. 2012) reversing a contempt conviction against a father who attended a child’s soccer game while the mother was present in the face of an FRO which barred the father from “any other place where the plaintiff is located” as being overly broad and impossible to obey at all times.

See also Zappaunbulso v. Zappaunbulso, 367 N.J. Super. 216 (App. Div. 2014) affirming an FRO prohibiting the defendant from living in the same neighborhood as the plaintiff.

Clearly, it is important that the FRO be precisely drafted for a contempt conviction to stick.

Practitioners should be aware that coming out of the Ray Rice domestic violence case, there is now an Ad Hoc Committee on Domestic Violence formed by Chief Justice Stuart Rabner “to consider the issue of domestic violence from multiple perspectives and make recommendations to improve the current system.” Undoubtedly, changes to New Jersey’s domestic violence laws can be expected.

N.T.B. v. D.D.B., 442 N.J. Super. 205 (App. Div. 2015)

Issue: Does a spouse’s destruction of a door within a jointly-owned marital home constitute harm to the “property of another,” such that it amounts to an act of criminal mischief pursuant to the Prevention of Domestic Violence Act?

Holding: Yes. By virtue of marriage, parties to a jointly-owned home hold a separate and distinct interest in the home as tenants by the entirety. In engaging in harm to the home, a party destroys the property of another and therefore commits the act of criminal mischief.

Discussion: The parties were married in March of 2012. Prior to the marriage, the plaintiff/husband obtained a Temporary Restraining Order (“TRO”) against the defendant/wife after she burned him with a curling iron. This TRO was not made final. Thereafter, a Complaint for Divorce was filed in December 2013.

At the time of the events giving rise to this appeal, the parties resided together in a jointly-owned home, along with their eight-year-old daughter. The spouses slept in separate bedrooms in the home.

On March 30, 2014, the parties engaged in a confrontation after the husband requested that the wife lower the volume of music playing from speakers located in her bedroom. After the wife refused to turn down the music, the husband entered her bedroom and poured juice on the speakers. When the speakers continued to play music, the husband tore the speakers from the wall, took them to the bathroom, and threw them into the toilet, destroying the speakers.

The following evening, the parties were arguing in front of the child. Accompanied by the child, the wife went into her bedroom and locked the door. After realizing the door was locked, the husband broke the door down by slamming his body into the door. The wife alleged that she attempted to leave the room, but the husband prevented her from doing so. She claimed that she slapped the husband in the face to be able to get around him. The husband denied blocking the wife’s path and claimed that she punched him without provocation.

The parties filed cross complaints against one another, each seeking a Final Restraining Order (“FRO”). The trial court denied the wife’s request for an FRO, concluding that she failed to meet her burden of establishing domestic violence because the speakers and the bedroom door were marital property, and therefore were not the “property of another” as set forth in N.J.S.A. 2C:17-3. The trial court concluded that the statute does not prohibit an individual from destroying his own property. The trial court also concluded that the wife had failed to establish any of the elements of harassment. In contrast, the trial court granted the husband’s request for an FRO based upon the wife striking the husband in the face. The trial court concluded that there was a sufficient history of domestic violence by the wife, as supported by the prior TRO obtained against her, to warrant the entry of an FRO.

The wife appealed the trial court’s determinations, claiming that the speakers were, in fact, the “property of another.” She claimed the judge erred in finding that the husband did not commit an act of harassment against her. She also challenged the court’s conclusion that she committed an act of simple assault against the husband.

Pursuant to N.J.S.A. 2C:17-3(a)(1), an individual is guilty of criminal mischief if he “purposely or knowingly damages property of another.” Although the statute does not define what constitutes the “property of another,” the model jury charge for criminal mischief indicates that a trial court should “charge that property of another includes property partly owned by defendant in which any other person has an interest which defendant is not privileged to infringe.” Further, pursuant to the parties’ joint property ownership in the home as tenants by the entirety, they each held a separate and distinct interest in the home.

Therefore, by breaking down the door to the wife’s bedroom, the husband did destroy the property of another, and committed an act of criminal mischief. To conclude otherwise would be to advance a public policy whereby a spouse may maliciously destroy a marital home, without recourse to the other spouse. Having found that an act of domestic violence occurred, the Appellate Division remanded to the trial court to determine whether an FRO was necessary to protect the wife from harm.

As for the speakers, the parties presented conflicting evidence as to whether the speakers were marital property or when they were purchased. The Appellate Division remanded the issue to the trial court to make specific factual findings as to when, how, and by whom they were purchased. The Appellate Division noted that, for personalty to be considered joint property held by the entirety, the spouses must take title pursuant to a written instrument, designating both of their names as husband and wife.

The Appellate Division upheld the trial court’s determination that the husband did not commit an act of harassment, as the wife failed to prove that he intended to harass her by destroying the speakers and breaking down the door. Finally, the Appellate Division reversed the entry of an FRO against the wife and remanded to the trial court to determine whether the wife acted in self-defense or defense of the parties’ child when she slapped the husband, as the trial court failed to set forth sufficient facts or legal analysis in support of its conclusions.

Observations: The law of domestic violence, at least as it relates to criminal mischief, clearly requires an understanding of property law. From a divorce lawyer’s perspective, what after all is “property of another” when during a marriage, most property (even if not owned jointly) is equitably owned by both parties. The Appellate Division comments, however, “we disagree with the proposition that, under New Jersey law, any personal property acquired during the marriage automatically becomes joint property.” The Appellate Division concludes absent parties taking title in property jointly under a written instrument the common law prohibition against personal property being held by the entirety prevails.

See also Judge Lawrence R. Jones’ unreported opinion in R.C. v. R.W., ___ N.J. Super. ___ (Ch. Div. 2015) (Docket No. FV-15-69-16) making clear that damaging property in one’s own name may still constitute an act of harassment, even if not satisfying the requirements of the criminal mischief statute.

Practitioners should be mindful that when victims seek an FRO solely on the basis of criminal mischief, the technical defense of property law may trump the result that equity would otherwise suggest.

Llewelyn v. Shewchuk, 440 N.J. Super. 207 (App. Div. 2015)

Issue: Is a 21 year old child necessarily emancipated when she no longer resides with either legal parent and resides with a third party who has no legal obligation to support her?

Holding: No. Pursuant to Filippone v. Lee, 304 N.J. Super. 301 (App. Div. 1997), the inquiry remains whether the child has moved beyond the sphere of influence of either parent. However, in this case, the trial court correctly deemed the child emancipated, as she withdrew from her parents’ supervision and control, obtained part-time employment, sporadically attended school, and arranged to be supported by third parties who were not legally obligated to support her.

Discussion: The appellant, Adrianna Shewchuk, was born to her biological father and mother, Lisa Llewelyn, in 1992. The defendant, James Shewchuk, and the plaintiff, Lisa Llewelyn, were married in August 1994 and the defendant adopted the appellant. The parties eventually divorced in 2002, sharing joint custody of their two children. The plaintiff was designated the parent of primary residence and the defendant was ordered to pay child support and contribute to the children’s college costs.

In April of 2013, the defendant sought to have appellant declared emancipated after learning that she had left the plaintiff’s home and had moved into her biological father’s home in January 2013. In her responsive Certification, the plaintiff confirmed that the child no longer resided with her, and consented to the defendant’s Motion to emancipate the child.

The child/Appellant filed two Certifications in opposition to the defendant’s Motion. (Parenthetically, the child/Appellant never formally sought to intervene in the matter, but was permitted to participate in the determination of the Motion). She confirmed that she no longer resided with her mother and now lived with her biological father. She stated she was working part-time, earning $7.75 per hour, and attending school. She provided an unofficial community college transcript which showed she took one course in the summer of 2011, for which she did not receive college credits; 30 credits the following school year; 3 credits over the summer of 2012; and 13 credits in the fall of 2012. She did not provide transcripts from a second community college to which she transferred, but did provide a registration statement from the second school indicating that she registered for 8 credits in the spring of 2013 and 12 credits in the fall of 2013. She indicated she intended to take 12 credits in the spring of 2014. She certified that her biological father’s wife paid a portion of the tuition and book costs. Finally, the Appellant claimed to suffer from depression and anxiety, and provided a letter from her psychologist who indicated she was diagnosed with anxiety disorder with mixed anxiety and depression.

The trial court ultimately emancipated the Appellant after finding that she had moved beyond the sphere of influence and responsibility formerly exercised by her parents.

The Appellate Division upheld the trial court’s determination. The Court began by confirming the right of a child to seek support from his parents, regardless of whether the child lives with one, both, or neither parent. Therefore, a child’s right to support is enforceable not only by the custodial parent, but by the child himself. Further, a child’s claim to support is not defeated merely because both parents agree the child is emancipated.

The Appellate Division reiterated the test set forth in Filippone v. Lee, namely, that the central inquiry remains whether the child “has moved beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own.” Thus, whether a child is emancipated will depend on circumstances including but not limited to the child’s need, interests, and independent resources, the family’s reasonable expectations, and the parties’ financial ability.

Here, although the Appellant provided information about her treatment for anxiety and depression, she presented no evidence that those issues interfered with her ability to be independent. Further, there was no evidence that either of her parents continued to provide her with support once she moved out of her mother’s home. Rather, to the extent she required any support, the Appellant relied on third parties who were under no legal obligation to support her. By independently choosing to withdraw from her parents’ sphere of influence, sporadically attending school, and making a financial arrangement with her biological father and his wife, Appellant emancipated herself.

Observations: There are bills pending in the Legislature to address emancipation of children attending college. This case goes beyond that common fact pattern and is decided not on whether the child was a full-time college student, but whether a child over 18 “has moved beyond the sphere of influence” of her parents.

This case does not establish new law. However, what is important about this case is that the Appellate Division settles the question of whether a child can bring suit against her parents for support (in this case both her parents were in agreement that the child was emancipated but the child disagreed). The common case we see is where one parent says the child is emancipated, but the other parent disagrees, and the court must decide. In the case where both parents agree that a child is emancipated, the child still maintains the right to pursue an action against her parents for support as the right to support belongs to the child.

Kakstys v. Stevens, 442 N.J. Super.501 (Ch. Div. 2015)

Issue: May a trial court establish a child support obligation retroactive to the filing date of the divorce Complaint, as opposed to the filing date of the Motion seeking support?

Holding: Yes. When a party files a Complaint which contains a request for child support from the other party, the trial court may, in its discretion, establish a child support obligation at trial retroactive to the date of Complaint, regardless of whether any pendente lite Motion was filed seeking support. Such a retroactive Order does not violate the anti-retroactivity statute, N.J.S.A. 2A:17-56.23a.

Discussion: On March 28, 2014, the plaintiff filed a Complaint for Divorce seeking various forms of relief, including child support from the defendant. The plaintiff did not file a Motion for pendente lite support until January 6, 2015, in which she sought child support retroactive to, at the very least, the filing date of the Complaint.

In assessing the plaintiff’s request, the trial court examined N.J.S.A. 2A:17-56.23a, which states:

No payment or installment of an order for child support, or those portions of an order which are allocated for child support established prior to or subsequent to the effective date of [N.J.S.A. 2A:17–56.23a], shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification, but only from the date the notice of motion was mailed either directly or through the appropriate agent. The written notice will state that a change of circumstances has occurred and a motion for modification of the order will be filed within 45 days. In the event a motion is not filed within the 45–day period, modification shall be permitted only from the date the motion is filed with the court.

The trial court noted the fundamental purpose of this statute: to provide the obligor with sufficient notice of any proposed modification to a support Order. The trial court also noted that the specific language of the statute discusses modifications to support Orders pursuant to a change in circumstances, not the effective date of initial support Orders. The trial court concluded that, had the Legislature intended for a custodial parent to forfeit his or her right to child support if he or she did not file a Motion, it would have said so. Further, here, the defendant was clearly on notice that the plaintiff was seeking child support from him, as set forth in her Complaint.

The trial court also reasoned that other issues in divorce matters are determined as of the filing date of the Complaint, including the eligibility of assets and debts for equitable distribution. Even if the plaintiff had filed a Motion for child support earlier than January 2015, any Order resolving such a Motion would still only have been an interim Order, subject to potential retroactive modification at trial pursuant to Mallamo v. Mallamo, 280 N.J. Super. 8 (App. Div. 1995). The trial court also noted the routine practice in both non-dissolution (“FD”) and domestic violence (“FV”) matters, whereby a final Order may award temporary support retroactive to the filing date of the Complaint. Finally, the trial court reasoned that to require a litigant to file a Motion to preserve his or her claim to child support would be to advance a public policy encouraging litigation–which is contrary to the express public policy in this State.

Having explained its reasoning, the trial court declined to establish a pendente lite child support obligation in this case retroactive to the date of Complaint. Instead, the trial court preserved for trial the plaintiff’s claim for such retroactive child support. Whether or not to set child support retroactive to the date of Complaint, or to a Motion date thereafter, is subject to the trial court’s discretion based upon the specific factual circumstances of each case.

Observations: Practice tip: Relying on this opinion, practitioners making their initial pendente lite child support application should request such relief retroactive to the filing date of the Complaint.

Furthermore, this case raises the question of whether child support can be obtained retroactive to a date earlier than the Complaint (e.g. the birth of the child).

We know that the right to child support belongs to the child and this right cannot be waived by the custodial parent. Martinetti v. Hickman, 261 N.J. Super. 508 (App. Div. 1993). As child support belongs to the child, why should the failure of a parent to timely pursue a claim for support prejudice the child? Especially in cases where the non-custodial parent could not be located or where other just cause can be shown, argument can be made that child support should be awarded to a date earlier than the complaint.

P.M. v. N.P., 441 N.J. Super.. 127 (App. Div. 2015)

Issue: Must a trial judge recuse himself from a case when his law clerk interviews and accepts employment with an attorney to the case?

Holding: No, unless he has a close familial relationship, as set forth in R. 1:12-1(b), with the law clerk. However, the trial court’s conduct, including interactions with the employing attorney prior to hiring the law clerk, must be assessed to determine whether an individual who observes the judge has a reasonable basis to doubt the judge’s integrity and impartiality. Further, the law clerk is prohibited from substantially participating in any decisions in the case after the attorney reveals to the law clerk or the trial court an interest in hiring the law clerk. Finally, at the time the law clerk begins employment with the attorney, the attorney must take measures to screen the clerk from participation in cases before the trial judge, with the severity of the measures to be commensurate to the law clerk’s duties during her clerkship.

Discussion: The parties were married in 1999 and divorced in 2006 after having three children. Subsequent to 2006, they engaged in extensive and contentious post-judgment Motion and appellate practice.

In a prior appeal relevant to the current appeal, the defendant/husband challenged a Family Part Order which denied his Motion to reduce his support obligations. The Appellate Division affirmed the Family Part Order, but remanded to the Family Part for an ability-to-pay hearing.

On March 28, 2012, the Family Part entered an Order withdrawing “with prejudice” the husband’s request for an ability-to-pay hearing. This Order was entered following correspondence submitted to the trial court by counsel for the husband, in which counsel stated that the husband wished to withdraw the request due to the cost of litigation. In her correspondence, counsel for the husband also made various unsworn allegations against the plaintiff/wife. In response, the wife’s counsel submitted a letter to the trial court, in which he objected to the husband’s counsel’s unilateral communication with the court; disputed the accusations made against his client; and requested that the court proceed with the ability-to-pay hearing so that the exact amount of arrears could be calculated.

On April 20, 2012, the wife filed a Motion seeking to vacate the March 28, 2012 Order, based upon the fact that the Order was entered without the benefit of sworn Certifications. The wife also sought the trial judge’s disqualification pursuant to R. 1:12-1. By Order dated July 20, 2012, the trial judge denied the wife’s Motion, and awarded the husband $11,500.00 in counsel fees incurred in defending the first appeal. The trial court also determined the arrears owed by the husband to the wife.

By way of letter dated August 7, 2012, the wife’s counsel wrote to the trial judge concerning the judge’s recusal from the case. The wife’s counsel indicated that the judge’s law clerk had accepted an employment position with the husband’s counsel, and sought discovery to ascertain when the husband’s counsel offered the position to the law clerk and whether the law clerk had worked on the case thereafter. The wife’s counsel also indicated that he was recently advised that the trial judge had a familial relationship with the law clerk, and he stated that, if true, the trial judge must recuse himself from the case. The wife’s counsel claimed that the trial court was required to obtain approval before hiring as his law clerk a familial relation of his. In response, the husband’s counsel submitted a letter to the trial court in which she stated that the law clerk did not accept an offer of employment from her until August 1, 2012.

On August 28, 2012, after no response to counsel’s letters was received from the trial court, the wife filed a formal Motion in which she sought: to disqualify the trial court; to vacate the July 20, 2012 Order; to compel the court to provide discovery regarding any forms the trial court completed prior to hiring the law clerk; and to compel husband’s counsel to provide all information relating to the law clerk’s employment with her firm, including the date the offer for employment was made and any correspondence between the law clerk and the husband’s counsel. In her supporting Certification, the wife claimed that the law clerk and the husband’s counsel were discussing potential employment during the time that the trial judge decided Motions filed by the parties. The wife also claimed that the law clerk had a familial relationship with the trial judge, and accordingly, the law clerk’s relationship with the husband’s counsel created an appearance of impropriety. In response, the husband’s counsel submitted a Certification in which she certified that she notified the trial court of her intention of hiring the law clerk before doing so.

At oral argument, the trial judge stated that he “read that guideline” concerning familial relationships between the trial court and an attorney working on a matter, and that the law clerk “doesn’t fall within that group.” He did not identify how, specifically, he was related to the law clerk. In addition, despite the wife’s counsel’s request for a clarification of this timeline, the husband’s counsel did not identify when she first approached the law clerk to discuss a possible employment relationship. Instead, the husband’s counsel stated that “a wall has been put up” at her firm, such that the law clerk does not work on any files where there was a Motion pending before the trial court.

On November 27, 2012, the trial court entered an Order denying the wife’s Motion. The wife appealed.

On appeal, the Appellate Division addressed three issues: 1) the law clerk’s pre-employment negotiations and activities with the husband’s counsel while the trial judge was addressing the ability-to-pay hearing and determining the husband’s arrears; 2) the ethical implications to the trial judge once the law clerk was formally employed by the husband’s counsel; and 3) the trial court’s alleged familial relationship to the law clerk and the ethical implications that arose once the law clerk accepted a position with the husband’s counsel.

Concerning the first issue, in determining whether to grant a Motion for recusal pursuant to R. 1:12-2, the trial court must ask: “would an individual who observes the judge’s personal conduct have a reasonable basis to doubt the judge’s integrity and impartiality?” Here, the record reflected the fact that the husband’s counsel approached the trial judge some time prior to August 1, 2012 to inform him of her interest in hiring his law clerk. When that first contact occurred, where it occurred, and what was specifically discussed is unknown, but it could be inferred that the communication was ex parte and did not involve the wife’s counsel. Without answers to these questions, an objective observer would have a reasonable basis to doubt the trial court’s impartiality. Thus, the Appellate Division remanded the matter for the trial court to make specific findings regarding the timing and substance of the husband’s counsel’s employment discussions with his law clerk. The trial judge must also describe what duties the law clerk performed for him in connection with this case after the husband’s counsel revealed her interest in hiring his law clerk. If the law clerk “substantially participated” in the judge’s decisions concerning this case, such as recommending a disposition to the trial court or contributing directly to the trial court’s analysis, after the husband’s counsel revealed her interest in hiring the law clerk to him, or after she revealed her interest in hiring the law clerk to the law clerk, the trial court must vacate any Orders entered during this time period and recuse himself from the case.

As for the second issue, in which the wife alleged that the law clerk participated in this case after she was hired by the husband’s counsel, the Appellate Division noted that the record was likewise sparse. Although the husband’s counsel certified that she had established a “wall” at her law firm such that the law clerk did not work on cases before the trial judge, this proffer was inadequate because it failed to address the law clerk’s involvement in this case during her clerkship. Pursuant to Camparato v. Schait, 180 N.J. 90 (2004), the court must ascertain whether the clerkship allowed the former law clerk to acquire information that the adversary firm could use, making it too late to employ a screening mechanism. On remand, the trial court must make specific findings describing the law clerk’s functions and duties during her clerkship, and what measures the husband’s counsel took to screen the law clerk from any participation in this case. The restrictions imposed on the law clerk must be commensurate with the level of her duties during the clerkship.

Finally, as for the third issue, R. 1:12-1(b) precludes a judge from sitting in any case if the judge “is by blood or marriage the first cousin of or is more closely related to any attorney in the action. This proscription shall extend to the partners, employers, employees or office associates of any such attorney except where the Chief Justice for good cause otherwise permits.” Here, instead of providing a direct answer to the wife’s counsel concerning the degree of his familial relationship to the law clerk, the trial court provided a legal conclusion. Under these circumstances, an individual witnessing this interaction would have a reasonable basis to doubt the judge’s impartiality. On remand, the trial court must provide a straightforward answer to the wife’s question regarding his familial relationship to the law clerk.

Observation: Attorneys must be careful before hiring or interviewing a law clerk when that attorney has matters before the judge with whom the law clerk is employed. This case posed the added problem of the law clerk being related to the judge – so here the attorney having a judge’s relative on the payroll was a separate ground for recusal. Once an interest in hiring the clerk is revealed, the court has to ensure that the law clerk is not involved in a substantial role in matters where the attorney-employer is involved. After the law clerk joins the law firm, the attorney must create a “wall” to ensure that the law clerk/now associate is not working on files that were before her as a law clerk.