The Ten Most Important Family Law Cases Reported in 2018

The Ten Most Important Family Law Cases Reported in 2018

                                                                                                By: John P. Paone, Jr.*

In the year 2018, there were no landmark published family law cases.  No Bisbing v. Bisbing, Gnall v. Gnall, Lombardi v. Lombardi, Maeker v. Ross, Garden State Equality v. Dow, or anything rivaling these major decisions reported in recent years.  Yet, in their own way, the 2018 top ten cases do provide important guidance and clarification in various areas of family law.

Nevertheless, it is now becoming clear that despite the great benefits of arbitration and alternate dispute resolution, the diversion of important cases from the court system is inhibiting the ability of the case law to advance.  Family law practitioners await interpretation of the 2014 alimony statute (including issues such as alimony duration in marriages less than 20 years, retirement, and cohabitation), the 2013 premarital agreement amendments (including when is a premarital agreement unconscionable), and other important topics impacting our practice.  Only time will tell whether future cases will result in reported opinions which will address these subjects or will be determined in anonymity via alternate dispute resolution.

The following are my selections for the ten most important family law cases reported in 2018.

M.G. v. S.M., ___ N.J. Super. ___ (App. Div. 2018)

Issue: Did the trial court err in finding that the entire portion of the Husband’s stock options which were awarded to him by his employer during the marriage but vested after the Complaint for Divorce are subject to equitable distribution?

Holding: Yes.  Although there is a rebuttable presumption that stock options which were acquired during the marriage but vest after the date of complaint are subject to equitable distribution, the trial court failed to consider the Husband’s testimony, the stock plan award correspondence, award and vesting schedules, and the stock plan which provided compelling evidence that the unvested stock award was issued to the Husband in consideration for future performance in connection with his employment.  Thus, the trial court must engage in a careful consideration of the facts surrounding the employee’s stock option plan to adjudge whether they were awarded based on efforts expended by the Husband during the marriage.

Discussion:   The plaintiff, M.G. (hereinafter “Husband”), and the defendant, S.M. (hereinafter “Wife”), were married in excess of 16 years.  For a majority of the marriage, the Husband worked as principal consultant for a large multi-national corporation.  Commencing in 2003 and for every year thereafter until 2010, the Husband received stock awards from his employer which would vest in annual tranches.

By the time that the Husband filed a Complaint for Divorce in July 2014, he had been granted eight stock awards by his employer but only three of them had vested.  The remainder of the awards were due to vest post-complaint on August 31, 2014 and for every August thereafter.  At trial, the Wife sought equitable distribution of the stock awards which the Husband received during the marriage.  The Husband introduced documentation from his employer titled “Overview of Stock Awards” which indicated that each employee’s stock award grant is based on their level, impact, and overall success of the company.  The Wife did not refute any of the information provided by the Husband regarding the stock plan, the awards he received, the conditions for vesting, or the basis in which his employer awarded the stock.

Following the conclusion of trial, the trial court found that the restricted stock units awarded to the Husband up to and including the August 2014 award were the result of efforts undertaken during the marriage and were subject to equitable distribution.  The Husband thereafter filed a motion to partially set aside the Final Judgment of Divorce pursuant to R. 4:50-1 which addressed the division of stock awards.  The Husband claimed that the trial court committed error in making its equitable distribution award as the information he submitted from his employer demonstrated that the stock he received during the marriage were performance options which were an incentive to stay with his employer post-complaint and to reward him for high quality work in the future.

The motion judge denied the application to partially vacate the judgment by relying in primary part on Pascale v. Pascale, 140 N.J. 583 (1995).  The judge noted that Pascale created a presumption that stock awards obtained as a result of joint, marital efforts are subject to equitable distribution.  The court further found that the paperwork which was provided by the husband from his employer regarding the general details of his stock was not enough to overcome this presumption.

On appeal, the New Jersey Appellate Division vacated the equitable distribution award by the trial court but remanded the matter for further consideration consistent with its opinion.  As part of its reasoning, the Appellate Division made clear that reliance by the trial court on Pascale was misplaced as the analysis in that case focused on when the stock options were received rather than the efforts required in order for the stock options to vest.  The Appellate Division also noted that the facts in Pascale were different than the present matter as the stock options in Pascale were awarded to the employee 10 days after the Complaint for Divorce rather than during the marriage.

The Court added that the evidence proffered by the Husband at trial in the form of plan documents and literature by his employer was compelling as it proved that vesting of his stock options was predicated on post-complaint performance in connection with his employment.  Despite the Wife’s contention that the only performance required of the Husband was to continue employment with the company, the Appellate Division found that the objective proofs at trial suggested otherwise.

With regard to the equitable distribution arrangement, the Appellate Division did not find it appropriate to utilize a coverture fraction or apply a “marital momentum” theory in dividing the unvested stock awards.  The Court emphasized that they would not be useful since these methods assume that a portion of the stock awards in this case would have a marital component.  The Court also distinguished the facts here from the holding in Thieme v. Aucoin-Thieme, 227 N.J. 269 (2016), whereby the parties in that matter were entitled to equitable distribution of a deferred post-complaint bonus in which the parties engaged in particular personal and financial planning in reliance upon receiving same in the future.  Contrary to the Thieme case, there was no support in the record in this matter that either party had operated in such a way during the marriage whereby they relied on the future vesting and benefit of stock awards.

The Appellate Division was guided by case law from other jurisdictions which addressed the procedure for division of stock awards incident to a divorce.  It instructed that New Jersey courts should adhere to the following criteria: (1) stocks which are awarded and vested during the marriage are subject to equitable distribution; (2) stocks which are awarded during the marriage but vest post-complaint for work performed during the marriage are also subject to equitable distribution; and (3) stocks which are awarded during the marriage but vest post-complaint in which there is a material question as to future performance creates a presumption of equitable distribution which may be overcome based on conclusive proofs which establish that the award was made based on efforts which occur outside the marriage.  The Appellate Division explained that had the trial court undertaken a proper analysis of the documentation which the Husband received from his employer about his stock plan, it would likely have arrived at a different result in how it effectuated equitable distribution of the stock awards.

Observation: M.G. v. S.M provides an analytical framework for how New Jersey courts should assess whether stock awards are marital property which are subject to equitable distribution.  Although there is no uniform approach for how to divide stock options which are awarded during the marriage but vest after the marital cutoff date, this case illustrates that courts must engage in a fact sensitive analysis, which may involve review of employment benefit records and testimony from the employer’s representative, to determine whether a stock was awarded either for future work performance or work performed during the marriage.  The polestar for New Jersey courts in this situation is not the timing of the stock award, but rather the basis for why it was awarded.  The burden to establish this rests with the party who seeks to have the stock options excluded from equitable distribution.

Some commentators have stated that the Appellate Division ignored the issue of vesting.  I believe this observation is misplaced.  When a stock award is made during the marriage, vesting will be relevant in determining the correct percentage of equitable distribution the non-titled spouse will be entitled to and the value of the asset.  The issue in M.G. v. S.M. was not a dispute over value or the correct distributive share – it was a dispute over whether the asset was in or out of the pot of equitable distribution (i.e. – remember the three (3) separate steps of equitable distribution:  (1) the court must identify what assets are subject to equitable distribution; (2) the court must value the marital property; and (3) the court must equitably distribute the marital assets).

Curran v. Curran, 453 N.J. Super. 315 (App. Div. 2018)

Issue: Does an unenforceable provision in an arbitration agreement providing for appellate review by the Appellate Division of the arbitrator’s award void the agreement and vacate the award?

Holding: No. If the unenforceable provision does not run afoul of the dominant purpose of the arbitration agreement, then it may be severed so that the remainder of the agreement continues to be enforceable.  In this case, the clause in dispute did not affect the essence of the parties’ agreement to arbitrate and the plaintiff failed to establish proper grounds in order to have the arbitrator’s award vacated pursuant to N.J.S.A. 2A:23B-23.

Discussion: The plaintiff (“Husband”) filed for divorce after twenty years of marriage from the defendant (“Wife”).   The parties thereafter entered into a consent order in which they agreed for all issues incident to the divorce to be submitted to arbitration in accordance with the New Jersey Arbitration Act.

In the arbitration agreement, the Wife’s counsel added a handwritten notation in the document captioned as paragraph 3A which stated, “[t]he parties reserve their rights to appeal the arbitrator’s award to the Appellate Division as if the matter was determined by the trial court.”

In June 2015, the arbitrator rendered his findings of fact and conclusions of law and a final award was issued the following month.  The Husband proceeded to challenge the arbitration award, noting mistakes of law with regard to alimony and equitable distribution.  Specifically, the Husband filed a motion in the trial court to modify the arbitration award regarding several issues, including alimony and equitable distribution issues.  In response, the Wife filed a cross-motion to confirm the award.

The trial court denied the Husband’s motion and confirmed the arbitration award. It relied on N.J.S.A. 2A: 23B-23 and concluded that no evidence was presented by the Husband which warranted the court to vacate the award under any of the grounds listed under the New Jersey Arbitration Act.  The court noted, however, that the Act does not permit a direct appeal from an arbitrator’s decision to the Appellate Division.  The court made clear that parties cannot expand subject matter jurisdiction by agreement as the authority of courts to hear and determine certain classes of cases rests solely with the Constitution and the Legislature.

On appeal, the Husband argued that the trial court committed error by failing to vacate the entire arbitration award because of the provision in the agreement which provided for a direct appeal from an arbitrator’s decision to the Appellate Division.  He claimed that this unenforceable provision nullified the entire arbitration agreement and the arbitrator’s award.

Upon review of the record below, the Appellate Division found no basis to disturb the arbitrator’s award and affirmed the trial court’s decision.  Although the Court agreed that the provision in question was unenforceable, this alone did not render the agreement void because the primary purpose of the contract remained intact.

The Appellate Division explained that the primary purpose of the agreement was the resolution of the issues incident to the parties’ divorce through binding arbitration pursuant to the Act.  It was the intent of the parties during the entire proceedings to have their matrimonial litigation handled by an arbitrator in an expeditious and comprehensive manner.  As this objective was clearly achieved, the Appellate Division was satisfied that the purpose of the parties’ agreement was accomplished by the arbitration proceeding and final award.  Furthermore, there was no reason to suggest that the arbitration award was a product of fraud, corruption, or wrongdoing under N.J.S.A. 2A:23B-23 such that the Husband’s request to vacate the award should be granted.

Observation:  The role of the court in confirming an arbitration award is not to replace the arbitrator’s judgment for its own.  Rather, when parties submit their matter to arbitration, the arbitration award will be confirmed unless the court finds:

  1. The award was procured by corruption, fraud or other undue means;
  2. The Court finds evident partiality by an arbitrator; corruption by an arbitrator; or misconduct by an arbitrator prejudicing the rights of a party to the arbitration proceeding;
  3. An arbitrator refused to postpone the hearing upon showing of sufficient cause for postponement, refused to consider evidence material to the controversy, or otherwise conducted the hearing contrary to section 15 of this act, so as to substantially prejudice the rights of a party to the arbitration proceeding;
  4. An arbitrator exceeded the arbitrator’s powers;
  5. There was no agreement to arbitrate, unless the person participated in the arbitration proceeding without raising the objection pursuant to subsection c. of section 15 of this act not later than he beginning of the arbitration hearing; or
  6. The arbitration was conducted without proper notice of the initiation of an arbitration as required in section 9 of this act so as to substantially prejudice the rights of a party to the arbitration proceeding.

[N.J.S.A. 2A:23B-23]

In Curran, the Husband never contended that any of these grounds for vacating the arbitration award were met.  His argument was to throw out the entire arbitration on the grounds that he did not receive appellate review of the arbitrator’s decision as bargained for in the Agreement to Arbitrate.

Practice Tip:  While the parties cannot confer jurisdiction upon the Appellate Division, they could establish a private appellate arbitrator who would have the same ability to review the arbitrator’s award just like the Appellate Division can review a final determination by the trial court.

G.M. v. C.V., 453 N.J. Super. 1 (App. Div. 2018)

Issue: May a trial court procedurally deny a defendant’s motion to dissolve a final restraining order (FRO) 12 years after its entry, if the defendant failed to include a transcript of the underlying FRO hearing because the audio recording of the hearing was incapable of transcription?

Holding: No.  In the event that the defendant is unable to produce the transcript from the FRO hearing due to no fault of her own and where the defendant has shown prima facie evidence of changed circumstances to dissolve the FRO, then the record of the FRO hearing should be reconstructed in order for the trial court to evaluate whether changed circumstances now exist to dissolve the FRO.

Discussion: The parties in this matter divorced in March 2004 after a 10 year marriage.  There were three children born of the marriage, one of whom is emancipated, another who is in college, and a third child who resides with the defendant.  After the divorce, the plaintiff moved out of state and remarried in 2014.

The plaintiff had successfully obtained a TRO and later a FRO against the defendant in August 2004 based on allegations that the defendant had committed an act of domestic violence by harassing the plaintiff.  The defendant did not appeal the entry of the FRO.

In March 2016, the defendant made an application to the court pursuant to N.J.S.A. 2C:25-29(d) to have the FRO vacated alleging that a substantial change in circumstances occurred since its entry in August 2004.  In support of her application, the defendant made numerous claims including that the plaintiff had moved to Florida and that the FRO posed a financial hardship to her such that she was unable to obtain employment.  The defendant contended that the plaintiff no longer feared her based on the fact that they had shared a hotel room for a week in 2006 with their children while at a tournament in Florida and that they were also engaged in a joint real estate venture together.  No transcript of the August 2004 FRO hearing was provided by the defendant.  Although the defendant attempted to obtain a transcript from the Morris County Superior Court, she was advised that the audio tapes from the August 2004 FRO hearing were blank.

In response to the defendant’s application, the plaintiff vehemently argued that the claims made by the defendant were false.  The plaintiff maintained that the defendant’s previously exhibited behavior towards him was violent, irrational, and mentally unstable.  Furthermore, the plaintiff expressed that he remained fearful of the defendant and was concerned about his personal safety without the protection of the restraining order.

The Family Part denied the defendant’s application to dissolve the FRO because it did not include a copy of the FRO hearing transcript.  The trial court relied on the language of N.J.S.A. 2C:25-29(d) which expressly provides for a complete record of the hearing to be included before dissolving any final order.  Likewise, the trial court denied the defendant’s motion for reconsideration finding that there was almost no record on which to rely in examining whether the defendant established good cause to extinguish the FRO pursuant to Carfagno v. Carfagno, 288 N.J. Super. 424 (App. Div. 1995).

On appeal, the defendant challenged the decision of the lower court insofar as it failed to consider her request that the court reconstruct the record in connection with the August 2004 FRO hearing so that the defendant’s application could be considered on the merits.  Upon review of the relevant facts and law, the Appellate Division concluded that the trial court committed reversible error.  Specifically, the Appellate Division found that the trial court did not accord the defendant fundamental fairness and due process of law in declining to reconstruct the record of the FRO hearing.

As part of its reasoning, the Appellate Division distinguished the instant matter from prior case law in which parties inexcusably failed to attach the transcript from the underlying FRO hearing despite there being no evidence that the transcript was unavailable.  It was clear in this matter that the defendant was unable to secure a copy of the transcript from the FRO proceeding due to problems which were beyond her control.  The panel noted that in other contexts, such as when records are inadvertently destroyed or are otherwise unavailable, the Appellate Division has instructed trial judges to reconstruct the record based on principles of due process which are afforded to litigants. Rule 2:5-3(f).

The Appellate Division added that if a trial judge is convinced that reconstruction of the record is impractical, there must be specific findings of fact made by the judge in order to reach such a conclusion.  In this case, the record in the lower court did not establish that the judge confirmed the inability to reconstruct the record of the prior FRO proceeding.  Accordingly, the Appellate Division found that there were sufficient grounds to reverse the ruling of the lower court and remanded the case to the trial court to determine whether the defendant can present good cause to dissolve the FRO notwithstanding the absence of the transcript from the FRO hearing.

Observation:  The Appellate Division specifically held “we do not consider the applicant here to be at fault merely because she did not appeal the FRO or request the transcript shortly after the hearing.”  This is important.  Since 1981, New Jersey Courts have been entering FROs under the Prevention of Domestic Violence Act.  There are undoubtedly hundreds of thousands of FROs which remain in effect.  This is a product of the fact that (unlike other states) New Jersey has no sunset provision requiring that FROs be renewed or reissued after the passage of time.  In short, in New Jersey, FROs last indefinitely.  G.M. v. C.V. makes clear that it is a violation of due process to close the door to the courthouse to those defendants who seek to dissolve FROs ten, twenty, thirty years later only to find that the court no longer maintains a record of the original hearing.

Also note in Kanaszka v. Kunen, 313 N.J. Super. 600 (App. Div. 1998), the Appellate Division held that the “complete record” of the hearing requirement in N.J.S.A. 2C:25-29(d), meant that without a complete transcript of the FRO hearing, the motion judge is unable to properly evaluate the application for dismissal.

Practice Tip:  To avoid this problem, practitioners should make it a policy to order a transcript of the final hearing (or at least advise clients of the need to order a transcript) at the time of the entry of the FRO.

Giarusso v. Giarusso, 455 N.J. Super. 42 (App. Div. 2018)

IssueMay an attorney charging lien be imposed by a trial court in a matter where the services which were rendered by a law firm occurred exclusively during the post-judgment period?

Holding: No.  The Attorney’s Lien Act, pursuant to N.J.S.A. 2A:13-5, protects the fee for services which have resulted in securing a judgment, final order, or verdict on behalf of the client.  In the present matter, the plaintiff retained the law firm to enforce a prior judgment.  During the pendency of the divorce litigation, the law firm did not represent the plaintiff nor did they perform any services on her behalf.  Accordingly, the law firm in this situation is prohibited from seeking such relief under the statute.

IssueDid the law firm who represented the plaintiff in her post-judgment action properly establish that they were owed the full amount of legal fees which they alleged in their application to the trial court?

Holding: No.  Although the law firm alleged that the plaintiff had a significant unpaid balance with them, the law firm did not provide sufficient billing records so that the trial judge could determine whether an award for fees was reasonable under R.P.C. 1.5(a).  Specifically, without a description of the work or an explanation of the time expended, the trial court lacks a critical component of the analysis which is necessary to accurately calculate the fees that should be awarded to the firm.

DiscussionThe petitioner, Carella, Byrne, Cecchi, Olstein, Brody & Agnello, (hereinafter “law firm”) was retained by the plaintiff to perform post-judgment services on her behalf which included seeking the collection of alimony and child support arrears from the defendant and enforcing other provisions provided under the parties’ Matrimonial Settlement Agreement.  Although the plaintiff paid an initial retainer of $5,000.00, the plaintiff failed thereafter to make any further payments to the law firm.  As a result, legal fees for the plaintiff continued to mount until the law firm’s representation of the plaintiff terminated after which time she had an unpaid balance with the law firm in the total amount of $99,356.10 plus interest.

The law firm subsequently notified the plaintiff about her right to seek fee arbitration as required by New Jersey Court Rule 1:20-6.  After the plaintiff failed to request fee arbitration within the time provided, the law firm filed an application with the trial court seeking the imposition of an attorney’s lien in the amount of $99,356.10 plus interest and a judgment against the plaintiff in the amount of the fee award.  The trial court entered an interim charging lien and scheduled a plenary hearing in order to determine the final amount owed.

Following the conclusion of the plenary hearing, the trial court issued an order along with a statement of reasons in which the court denied the law firm’s request for an attorney’s lien and reduced their award for fees by one-half in the amount of $50,000.00.  The trial court found in pertinent part that the law firm could not obtain an attorney’s lien for services which were performed post-judgment and more importantly, the proofs introduced by the law firm at the plenary hearing did not support their contention that they were entitled to the fees that they alleged were owed by the plaintiff.

Upon the law firm taking the matter up on appeal, the Appellate Division affirmed the ruling of the trial court denying the attorney’s lien, but remanded the portion of the trial court’s order awarding fees in the amount of $50,000.00 to the law firm.  As it related to the law firm’s request for a lien, the Appellate Division relied on prior New Jersey case precedent which provided that the lien is designed to protect the attorney’s interest for any judgment that may be recovered for the attorney’s client.  Based on its review of the case law, the Court found that there was no legal basis in this matter to institute an attorney’s lien insofar as the law firm only performed services for the plaintiff which occurred post-judgment and there was no judgment, verdict, or order upon which an attorney’s lien could attach pursuant to the Attorney’s Lien Act under N.J.S.A. 2A:13-5.

Although the Appellate Division set aside the award of attorney’s fees by the trial court based on insufficient findings of fact and a failure to perform a thorough lodestar analysis as required under R.P.C. 1.5(a), the panel recognized that the trial court could not undertake this task in part because the law firm failed to provide appropriate billing records and data to show that the fees which were incurred in representing the plaintiff in her post-judgment matrimonial matter were reasonable.  To render an award for attorney’s fees under R.P.C. 1.5(a), the trial judge must be able to evaluate such factors as the time and labor required, the novelty and difficulty of the questions involved, and the amount involved and the results obtained.  The Court noted that the law firm’s records were devoid of essential information which should have included a description of the work performed and an explanation about the time expended by the firm in preparing the plaintiff’s file.  The validity of the law firm’s request for fees was further questioned by the Appellate Division based on evidence in the record that the defendant’s counsel fees over the same duration of the proceedings was only $13,000.00, whereas the plaintiff had incurred $99,356.10 plus interest.

The Appellate Division further concluded that the trial court also committed error by requiring the law firm to commence a separate collection action in the Law Division to recover a judgment for attorney’s fees.  The Court added that such a result runs afoul of the principles of judicial efficiency and economy which benefits the parties and counsel involved by having the same judge in the same proceeding address fact sensitive issues.  However, the law firm’s application should be treated separately from the underlying action insofar as there is a separate and distinct discovery schedule and evidentiary hearing.

Observation:  It had already been pretty much settled that the charging lien was not applicable for post-judgment legal services.  Panerello v. Panerello, 245 N.J. Super. 318 (Ch. Div. 1990).  Therefore, the importance of Giarusso is in the Appellate Division’s analysis of whether the law firm met its burden to prove the reasonableness of its fees by a preponderance of the evidence in accord with R.P.C. 1.5(a).  Here, there was no dispute over the law firm’s hourly rate, but there was challenge to the number of hours expended by counsel.  The law firm presented all monthly invoices which set forth the date, type of service, identity of the person performing the work, time expended, and resulting amount.  However, the bills omitted description of the subject matter or purpose of the services rendered.  For example, the bills set forth telephone call or email with an individual without setting forth the subject matter.  Attorneys often do not fully set forth this information out of concern that attorney client privilege may be compromised when the bills are produced to the adverse party in discovery.

Practice Tip:  Set forth a complete description of all services on your monthly bills and then prior to supplying the bills in discovery, redact those portions of the bill which expose confidential information or attorney work product.

There may be a ray of sunshine in Giarusso.  Remember the court found that the Attorney Lien Act did not apply as this was a post-judgment matter.  Therefore, the trial court believed that the law firm should have to go to the Law Division to collect its fees. The Appellate Division disagreed and held that the attorney could file a petition in the underlying Family Part action to obtain a judgment against his client for attorney’s fees.  That is important for several reasons.  First, it is preferable for the judge who presided over the underlying action to decide the fee dispute.  That judge understands the work needed to be performed in the matter and whether the case was over litigated. In addition, proceeding in the underlying Family Part may serve as a prophylactic against the knee jerk malpractice action which is frequently filed in the Law Division in response to a simple collection suit.  Stay tuned.

Jimenez v. Jimenez, 454 N.J. Super. 432 (App. Div. 2018)

Issue: Does N.J.S.A. 46:3-17.4, a provision enacted into law in 1988, preclude a spouse’s unsecured creditor from obtaining the forced partition of real property that the spouse and his  non-debtor  spouse own together as tenants by the entirety?

Holding: Yes.  The aforementioned statute supersedes and nullifies earlier case law that permitted such a creditor’s remedy in certain equitable circumstances. The Appellate Division held that the legislative intent of N.J.S.A. 46:3-17.4 is “to maximize each spouse’s protection from a non-consensual diminution of his or her interests.”

Discussion: Interestingly enough, there is no divorce action in this case although there is a dispute amongst family members.  Specifically, this case concerns a married couple’s ownership of an undeveloped tract of land located in Mansfield, New Jersey. This tract has not been used as the owners’ marital residence, but it is undisputed that Raul Anibal Jimenez (“defendant/debtor spouse”) and his wife (who is not a party to the action) own the property as tenants by the entirety.[1]

In  December 2011,  plaintiffs  Luis  Jimenez,  Raul  Augustin Jimenez, and Lirio Jimenez (“plaintiffs”) filed a complaint in the Law Division against the defendant seeking  repayment  on  a  line  of  credit  they extended to him, as well as the repayment of additional funds he allegedly owed to them  in  connection  with a  joint  venture.  Thereafter, on February 21, 2014, the parties entered into a consent judgment whereby the defendant would pay the plaintiffs $225,000 and the plaintiffs would stay its execution until July 1, 2014. The judgment was recorded and filed as a lien on March 24, 2014.

After July 1, 2014, when the defendant failed to satisfy the judgment, the plaintiffs pursued collection efforts to no avail.   Specifically, the plaintiffs were unable to levy monies from bank accounts or numerous companies with which the defendant conducted business in both New Jersey and Pennsylvania.

In  January  2016,  the defendant  responded  to  a  post-judgment information  subpoena  concerning  his  finances and the plaintiffs filed a motion in  the  Law  Division under Rule 4:59-1(d)  to  compel  the  partition  and  sale  of  the Mansfield  property. The defendant opposed the motion and argued that forced sale of a property that he co-owns with his wife is prohibited under N.J.S.A. 46:3-17.4.  In an oral opinion, the trial court agreed with the defendant despite prior case law which permitted a creditor to obtain  a partition  and  sale  of  interests  in  real  estate  owned  by  a married  couple  as  tenants  by  the  entirety,  depending  upon  the relative equities involved. See Newman v. Chase, 70 N.J. 254, 262 (1976) (“not automatically allowing delinquent debtors’ the opportunity to sequester substantial assets from just liabilities”).  This appeal ensued.

Upon review of the record below, the Appellate Division affirmed the trial court’s decision and decided that the intent of N.J.S.A. 46:3-17.4 was to protect a spouse’s interest in a property from non-consensual diminution of his or her interests.  Specifically, the Appellate Division explained that Section 17.4, the key portion of the 1988 statute, states:

Neither  spouse  may  sever,  alienate,  or otherwise  affect  their  interest  in  the tenancy  by  entirety  during  the  marriage  or upon  separation  without  the written  consent of both spouses.

[N.J.S.A. 46:3-17.4].

The Appellate Division interpreted this portion of the statute to mean that one spouse’s failure to pay his or her personal debts to a third-party creditor alone cannot result in the loss of an interest for an innocent party. “Otherwise, a free-wheeling spouse, by amassing such individual debt, could detrimentally affect the other spouse’s interests in their co-owned property.”  Although  there  is  no  reported  New Jersey  opinion  directly on  point  interpreting  N.J.S.A.  46:3-17.4, the Appellate Division discussed how this principle has been echoed in other courts. See, e.g., In re Wanish, 555 B.R. 496, 499 (Bankr. E.D.  Pa. 2016).

As a final note, the Appellate Division discussed that it  does  not  preclude a  remedy  by  a  creditor against property held by tenants by the entirety when the title “was  deeded  as  a  fraudulent  conveyance  in  order to  avoid  known debts to creditors.”  See N.J.S.A. 25:2-1 to -6 (the fraudulent conveyance statute).  Here, no fraudulent conveyance is alleged by plaintiffs or indicated by the record.

Observation:  Can a creditor partition real estate owned by parties as tenants by the entirety when only one party is the debtor? – no.  This issue often comes up during the divorce case and now we know that a creditor cannot prevail in forcing the partition of the real property.  But before you get too excited about the opinion, understand that in equitable distribution, the trial court can allocate debts as well as assets.  So that while the creditor may not be able to go after property owned by the non-debtor spouse, the court may utilize marital assets to satisfy the debt if the debt was incurred during the marriage, for a marital purpose, and was not part of some attempt to defraud the non-debtor spouse.  Monte v. Monte, 212 N.J. Super. 557 (App. Div. 1986).

Dever v. Howell, 465 N.J. Super. 300 (App. Div. 2018)

Issue: Can a parent relocate with a child to South Carolina where there is a prior Consent Order allowing relocation to Florida, without first seeking an Order from the Family Part which authorizes the relocation and establishes “cause” for the relocation?

Holding: No.  Pursuant to N.J.S.A. 9:2-2, a parent who seeks the interstate removal of a child must initially petition the trial court for an Order allowing relocation and then must demonstrate “cause” for the relocation before moving out of state with the child.  In this matter, the Appellate Division determined that the fact that the parties had entered into a Consent Order to allow the plaintiff to relocate with their child to Florida was not a sufficient basis to permit him to relocate instead with the child to South Carolina, absent consent of the defendant, without first meeting the prerequisites of N.J.S.A. 9:2-2.

Discussion: The plaintiff (“father”) and defendant (“mother”) were never married, but had a prior relationship which resulted in the birth of two children.  Although the parties had initially agreed to joint physical custody of the children, the father became the parent of primary residence in October 2013.  At all relevant times, the parties shared legal custody.

Prior to the parties’ litigation in this matter, the father had expressed an interest in relocating with the children to Florida.  His desire to move to Florida stemmed from a relationship that he had with another woman and whom he later married.  On May 1, 2015, the parties executed a Consent Order for the purpose of allowing the father to relocate from New Jersey to Florida with the two children.  The Consent Order did not identify any other jurisdiction where the father would be permitted to reside with the children.

After the father failed to move to Florida with the children, the mother filed an application with the trial court in November 2015 seeking to modify her parenting time with the children to include overnights.  This motion was carried by the trial judge until April 7, 2016 in order to allow the parties’ time to negotiate a parenting time schedule.  In the days prior to the court appearance, the father notified the mother that he would be moving with  the children to South Carolina within 24 hours and that he would allow the mother ten (10) minutes in the morning to say goodbye.  Although the mother objected to the father’s plan, the father left with the children for South Carolina the following day.

On the return date of the motion to modify parenting time, the trial court learned for the first time that the father had uprooted the children from New Jersey in order to relocate to South Carolina.  While the father’s attorney had requested that the mother sign a Consent Order permitting the children to relocate to South Carolina, the mother refused.  To address this issue on an interim basis without having the benefit of any testimony or other evidence, the family judge entered an order without prejudice which allowed the children to remain in South Carolina pending further order of the court.

The father and the children ultimately returned to New Jersey in June 2016.  However, the father thereafter took the children back to South Carolina without obtaining the consent of the mother.  This prompted the mother to file an Order to Show Cause in September 2016 in which she requested that the children be immediately returned to New Jersey and that there be a transfer in custody in which she be designated parent of primary residence.

This relocation battle between the parents culminated in five-day trial which spanned from February through May 2017.  Upon reviewing the evidence presented, the trial court determined that the father’s decision to move the children to South Carolina prior to seeking its authorization to do so violated the procedural requirements of N.J.S.A. 9:2-2.  In reaching its conclusion, the court was guided by the mother’s testimony and the fact that the father’s proposed Consent Order was presented to the mother after the father already relocated with the children to South Carolina.  The family part judge found that the father’s after the fact attempt to have the mother sign the Consent Order was a clear indication that the father knew his relocation with the children was improper.  Although the trial judge denied the mother’s request to change custody, an Order was entered which required the children to be returned to New Jersey within ten (10) days.

Following entry of the Final Order, the father moved for reconsideration of the relocation determination. Although the father asked the court in his application to perform a best interests analysis, the court noted that the father failed to request same during trial proceedings.  He also did not request that the family court undertake an analysis under N.J.S.A. 9:2-4(c) to determine whether “cause” existed for relocation pursuant to the old standard as set forth in Baures v. Lewis, 167 N.J. 91 (2001), or the current standard in Bisbing v. Bisbing, 230 N.J. 309 (2017).  While the father further claimed that it was the mother’s burden to prove that returning to New Jersey was in the children’s best interests, the family judge rejected the father’s burden-shifting argument and denied his request for reconsideration.

Upon the matter being presented on appeal, the New Jersey Appellate Division affirmed the ruling of the trial court in finding that the father’s relocation of the children violated New Jersey law.  The Appellate Division determined that the father could not rely on the May 2015 Consent Order as a basis to relocate with the children since this expressly limited removal to Florida and not to any other jurisdiction.  The Court added that the negotiations surrounding the preparation of that Order had no connection whatsoever to South Carolina.  It was also the mother’s understanding based upon her testimony at trial that the relocation would be near the Orlando area so that the father and his new wife would be able to live near the new wife’s family.

The Appellate Division further determined that there was also no validity to the father’s argument that the interim Order which permitted him to stay in South Carolina with the children switched the burden of proof to the mother to show why it was in the children’s best interests to return to live in New Jersey.  It was further clear that the father had multiple opportunities to file his relocation application properly before the trial court, but elected not to do so.

The Appellate Division pointed out that had the father sought an Order for relocation before he removed the children from New Jersey, then the trial court would have had to evaluate whether there was cause for the relocation pursuant to Baures, which was the controlling law at the time of the hearing.  However, since the father had unilaterally and unlawfully removed the children from New Jersey before such an application could be made, the trial judge did not have go through this process under the relocation statute.

Observation:    Bisbing was not the controlling law when Dever was litigated before the trial court.  Bisbing effectively places the parties on equal footing in relocation cases and places the emphasis on the best interests of the child with the party seeking to relocate having the burden to establish that it is in the child’s best interest to grant removal.  In this case, neither the Bisbing or Baures standard factored into the decision insofar as it was apparent that the father had acted in clear violation of N.J.S.A. 9:2-2, the removal statute.

Bisbing did not address agreements not to relocate or to relocate only within a limited distance.  In Dever, the agreement to relocate is limited to a particular state and the Appellate Division made clear that an agreement to allow relocation to Florida did not open the door to relocation to South Carolina or anywhere else.

M.C. v. G.T., 452 N.J. Super. 509 (App. Div. 2018)

Issue: Did the trial court err in invoking its equitable powers to enter a restraining order where no evidence was presented in the record by the plaintiff that an act of domestic violence was committed?

Holding: Yes.  The trial court may only exercise its equitable powers to issue restraints based on evidence heard in a failed domestic violence action where there is a concurrent matrimonial action pending between the parties. In the instant matter, the trial court improperly imposed restraints in the plaintiff’s favor as a result of the domestic violence action where the plaintiff failed to meet her burden pursuant to Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006).

Discussion: The plaintiff filed a domestic violence complaint against the defendant alleging harassment which is a predicate offense under the Prevention of Domestic Violence Act, pursuant to N.J.S.A. 2C:25-17, et al.  At the conclusion of the final hearing, the trial court found that the plaintiff had failed to proffer any evidence that an act of domestic violence was committed and further determined that the plaintiff had not sustained her burden to warrant an entry of restraints against the defendant.  Notwithstanding these factual findings, the judge invoked her equitable powers and granted a restraining order in the plaintiff’s favor.

Upon the matter being brought on appeal, the Appellate Division reversed the decision of the lower court.  The Appellate Division concluded that the trial judge abused her discretion in issuing restraints where it was conceded by the judge that no proof was established at trial that any act of domestic violence actually occurred.  The Appellate Division further found that the invocation of equitable powers by the trial judge to issue restrains in this matter was improper and contrary to controlling case law in New Jersey.

The Appellate Division closely examined the case of P.J.G. v. P.S.S., 297 N.J. Super. 468 (App. Div. 1997), which the trial court relied upon in support of its order.  In that case, the plaintiff and defendant had filed cross-complaints alleging acts of domestic violence.  The Appellate Division in that case entered restraints for both sides despite the fact that there was no support in the record as to an act of domestic violence committed against the plaintiff.  While the panel in P.J.G. recognized that a court lacks jurisdiction to issue a restraining order unless a person charged with an applicable offense under the domestic violence statute is found to have committed an act of domestic violence, it also noted that restraints may nonetheless be entered by a family judge despite the absence of evidence through invocation of the judge’s “ample inherent power.”  In order to clarify when the judge may invoke this inherent power, the P.J.G. panel adhered to the principle established in N.B. v. T.B., 297 N.J. Super. 35, 42 (App. Div. 1997), which states that a family judge may use evidence during a failed domestic violence trial in order to issue restraints in a pending matrimonial action involving the parties.

In applying the rulings of P.J.G. and N.B. to the present matter, the Appellate Division made clear that this was not a case involving cross complaints or a case in which there was a pending matrimonial action such that the judge would be able to exercise her equitable powers to enter restraints.  Rather, the judge entered restraints in the very action where the plaintiff failed to meet her burden by a preponderance of the evidence that the defendant committed an act of domestic violence.  Accordingly, the result in this case was contrary to the precedent established in P.J.G. and N.B. and was the basis for a reversal by the Appellate Division.

Observation: Does this case signal the end of the imposition of restraints without a finding of domestic violence? In this case, the Appellate Division disapproves of the court using its equitable powers to enter a restraining order against a defendant despite a finding that no act of domestic violence occurred.  The Court appeared to reject earlier decisions in P.J.G. v. P.S.S., 297 N.J. Super. 468 (App. Div. 1997) and N.B. v. T.B., 297 N.J. Super. 35 (App. Div. 1997) where the court concluded that evidence elicited during a failed domestic violence action could support the issuance of restraints in a pending matrimonial action.  In a footnote in M.C. v. G.T., the court suggests that the imposition of such restraints violates due process and fundamental fairness.

R.L.U. v. J.P., ___ N.J. Super. ___ (App. Div. 2018)

Issue: Did the family court err in finding that the Sexual Assault Survivor Protection Act (“SASPA”), pursuant to N.J.S.A. 2C:14-13 to -21, applied retroactively based on acts of sexual conduct by the defendant which occurred prior to the enactment of the statute?

Holding: Yes.  The Appellate Division held that the Family Part judge improperly determined that SASPA operated retroactively such that past instances of sexual conduct which preceded the effective date of the statute could serve as the basis for a predicate act in which to issue a SASPA protection order.  More specifically, the victim in this matter failed to establish any of the following: (1) the legislative intent for SASPA to apply retroactively; (2) that SASPA was adopted as curative legislation to correct past defects in the law; or (3) that the parties themselves expected the statute to apply retroactively.

Discussion:  The defendant, J.P., pled guilty in 2005 of endangering the plaintiff, R.L.U., when she was only 11 years old.  As a result of his conviction, J.P. was sentenced to a three-year suspended prison term, placed on parole supervision for life, and required to register as a Megan’s Law offender.

Years later, on March 13, 2017, J.P. entered a convenience store where R.L.U. was working and allegedly yelled insulting and hurtful remarks at her direction.  Ten days later J.P. returned to the convenience store and stared at R.L.U. through the glass door for five seconds before leaving the scene.  R.L.U. proceeded to contact the police who advised that she would be able to seek a restraining order under SASPA for harassment.  A municipal court summons was also issued by law enforcement in which J.P. was charged with harassment.

On March 27, 2017, R.L.U. was issued a temporary order of protection pursuant to SASPA.  Following a two-day hearing which concluded on April 19, 2017, the Family Part judge entered a final protection order in the proceeding based on events regarding sexual contact and assault which formed the basis of J.P.’s conviction in 2005.  Prior to testimony by either party during the final hearing, J.P. sought to dismiss the temporary protection order, claiming that SASPA on its face violated the ex post facto laws for both the U.S. and New Jersey constitutions.  The trial judge found J.P.’s argument to be without merit and denied his application to dismiss the protection order, deeming that SASPA was a civil statute designed to protect sexual assault victims and did not violate the ex post facto clause.

After J.P. was unsuccessful in filing a Motion for Reconsideration, he sought appeal before the Appellate Division.  J.P. contended that the Family Part judge committed error in entering a protection order under SASPA because that statute requires a predicate act to have occurred following its enactment, and not prior to its passage into law.

Upon review of the submissions and arguments by J.P., the Appellate Division reversed the ruling of the Family Part and dismissed the final protection order, agreeing that SASPA did not have any retroactive application as to any events which may have transpired prior to its legislation being codified in 2015.  The Appellate Division made clear that a statute may have retroactive application in the following cases: (1) where there is an explicit or implicit legislative intent to do so; (2) where the statute is enacted for curative purposes; (3) where the parties manifest an intent for the statute to have retroactive effect.

In this matter, none of the above mentioned characteristics applied in order for SASPA to be applied retroactively by the Family Part.  The Court observed that it was the express directive of the Legislature that SASPA would not take effect until the 180th day after its enactment.  Furthermore, there was nothing to suggest that SASPA was “curative” legislation insofar as it was not passed to remedy a perceived imperfection or misapplication of a statute.  Rather, it was designed to expand the rights of sexual assault victims who did not have dating relationships with defendants such that they would not be afforded relief under the New Jersey Prevention Against Domestic Violence Act (“NJPDVA”), but for the presence of SASPA.  Finally, any claim that there was an expectation by the parties for SASPA to apply retroactively was undercut by the fact that R.L.U.’s SASPA application listed acts of harassment and intimidation, but no allegations of sexual misconduct or physical contact which would amount to a predicate act under SASPA.

With regard to the factual merits that were addressed at the final hearing, the Appellate Division noted that none of the allegations against J.P. from 2017 – which were subsequent to when SASPA was enacted – formed the basis for the SASPA protection order by the Family Part judge.  During the hearing, there was no testimony offered by either party that J.P. had made or attempted to make sexual contact with R.L.U. when he was at the convenience store in 2017.  Thus, for a particular type of conduct to be covered under SASPA it is required that there be some evidence of nonconsensual sexual contact, sexual penetration, or lewdness.  Although it was clear that J.P. had engaged in unwanted sexual contact with R.L.U. when he had pled guilty to endangerment and was sentenced in 2005, the Appellate Division concluded that R.L.U. could not seek relief pursuant to SASPA based on old allegations which were not raised in her complaint.

Observation:  SASPA was enacted not for the purpose of correcting any flaw, loophole, or mistake with regard to New Jersey Prevention of Domestic Violence Act, but rather to expand the rights of sexual assault victims who are not typically afforded the protection of a final restraining order under the domestic violence statute because they have no legal or dating relationship with the accused. However, as SASPA was never intended by the New Jersey Legislature to have retroactive application, a victim may not be able to obtain relief for acts which occurred prior to 2015.

T.M. v. R.M.W.,________N.J. Super.________ (Ch. Div. 2018)

Issue: Can a plaintiff in a domestic violence action qualify as a victim under the New Jersey Prevention Against Domestic Violence Act (“NJPDVA”), pursuant to N.J.S.A. 2C:25-17, et al, based upon a “dating relationship” which involves consensual, but infrequent, private sexual relations between adults without the traditional characteristics of a dating relationship as recognized by New Jersey law?

Holding: Yes.  Although the parties did not hold themselves out to family and friends as a dating couple and had on-again, off-again relationship, the fact that they engaged in intimate, physical, and sexual relations for eight years entitled the plaintiff to protection as a victim under the NJPDVA.  This result is consistent with the spirit of the domestic violence statute notwithstanding the absence of any traditional or observable indicia of dating between the parties.

Issue: Can a defendant in a domestic violence action assert the affirmative defense of consent in response to allegations of simple assault and harassment when the parties agreed that they had engaged in rough consensual sex?

Holding: Yes.  The trial court determined that the pattern and practice of the parties’ past sexual encounters in which they engaged in slapping, choking, and hair pulling in conjunction with the plaintiff not immediately objecting at the time she was punched by the defendant illustrated that consent to such abuse was a viable affirmative defense by the defendant.

Discussion: The plaintiff, a 22 year old female, and the defendant, a 25 year old male, were involved in a consensual sexual relationship for 8 years.  On September 20, 2017, the plaintiff filed a Temporary Restraining Order against the defendant in which she alleged predicate acts of simple assault and harassment.  The plaintiff claimed that she was in a dating relationship with the defendant in order to satisfy jurisdictional grounds under the NJPDVA.

With regard to the incident, the plaintiff alleged that on September 18, 2017, the defendant came to her home after she invited him and they engaged in rough consensual sex during which time the defendant punched her in the face with a closed fist.  The plaintiff’s complaint included an admission that she agreed to have rough consensual sex with the defendant but that punching her went beyond her consent.  She also detailed that there was a past history of domestic violence which involved name calling and abuse and that the last time they had seen each other was in summer of 2017 in which they had kissed, but did not have sexual relations.

During the Final Restraining Order hearing, the plaintiff testified that they had sex on a more frequent basis during the first three years of their relationship, but thereafter they took a hiatus from sexual activity for three years.  The plaintiff stated that for the past year of their relationship, their contact primarily consisted of private sexual encounters in which the physical nature of their relations intensified.  On the evening leading up to the incident, the plaintiff testified that she had invited the defendant to have sexual relations.  She claimed that while they were intimate, the defendant punched her on the left side of her jaw.  The plaintiff explained that after being punched, the defendant laughed and proceeded to punch her again.  When the trial court questioned the plaintiff as to her understanding of rough consensual sex, the plaintiff testified that she agreed to slapping, hair pulling, and choking, but that punching went beyond the scope of her consent.

Although the defendant had agreed with most of the plaintiff’s version of the events, the defendant testified that he had sexual relations with the plaintiff as recently as June 2017 and that about one month later, the plaintiff texted his girlfriend to inform her that the defendant was cheating on her.  With regard to the allegations against the defendant, he admitted that while the plaintiff had objected to being hit, they continued to engage in further intercourse.  The defendant also testified that after he left the plaintiff’s home that evening, it was his understanding that they had an agreement in which he would not hit her again but they would otherwise continue to have rough sex.

After evaluating the testimony and credibility of the parties, the trial court vacated the Temporary Restraining Order and dismissed the domestic violence complaint against the defendant.  In reaching this conclusion, the court found that the despite the initial candor of the plaintiff, her credibility diminished based on her inconsistent testimony as to whether the defendant had actually punched her a second time.  Furthermore, the court determined that the plaintiff’s past history with the defendant and allegations of abuse cited in the plaintiff’s complaint were unreliable based on her contradictory testimony at trial.

The trial court further declared that the plaintiff was unable to meet her burden under Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006), that the defendant committed acts of domestic violence based on the fact that the proofs were inconclusive as to whether the punch by the defendant was a consensual bodily act.  The court noted that the testimony of both parties was unequivocally clear that there was a history of rough, physical, and aggressive touching which defined the course of their relationship.  While neither party established the parameters of their relationship, it was clear that the plaintiff had manifested her objection to being punched, yet continued to engage in sex with the defendant.  Although the trial court acknowledged that a full-force punch to the jaw is certainly offensive and harmful enough to be considered harassment or simple assault, the unique circumstances of the parties’ relationship in which the plaintiff invited the defendant into her home to have rough consensual sex does not warrant the entry of a Final Restraining Order so as to protect the plaintiff from future acts of abuse by the defendant.

While the trial judge denied the plaintiff’s request to enter a Final Restraining Order in this matter, he found that the plaintiff had standing to seek such relief as a victim under the NJPDVA based on evidence that she was in a dating relationship with the defendant.  In making this determination, the court analyzed Andrew v. Rutherford, 363 N.J. Super. 252 (Ch. Div. 2003) which cites the: (1) minimal social interpersonal bonding of parties which exceeds mere casual fraternization; (2) length of alleged dating activities; (3) nature and frequency of parties’ interactions; (4) parties’ ongoing expectations of relationship; (5) demonstration of an affirmation of relationship by statement or conduct; and (6) any other factors unique to the case to prove that a dating relationship exists.

Although the first five factors did not support the position that the parties were involved in a dating relationship, the trial court gave added weight to the last factor wherein it explained that particular attention must be given to the unique circumstances of this relationship which is not bound by customary socio-economic and generational norms.  Thus, the court reasoned that an individual who dates and hold themselves out as in a relationship should not be treated any differently under the domestic violence statute than an individual who invites another person into her home and has sexual relations.  The court made clear that drawing such a distinction is illogical and would offend the spirit of the statute which is intended to protect victims to the greatest extent possible.

Observation:  This case perhaps presents the perfect fact pattern to justify the holding in Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006).  Recall that Silver requires satisfaction of a two-pronged test prior to entry of an FRO.  First:  that the predicate act occurred.  In T.M. v. R.M.W., no one can deny that punching someone in the jaw is an act of assault and, therefore, a requisite predicate act.  Second:  that the FRO is necessary to protect the alleged victim from immediate danger or further acts of domestic violence.  Here, considering the nature of the rough sex consented to, the fact that sexual intercourse continued after the punching and the fact that these encounters were by consensual arrangement, it is plausible for a court to conclude there was no domestic violence here as the FRO was not needed to protect the victim from immediate danger or further acts of domestic violence.

The decision here also expands the definition of a “dating relationship” under the NJPDVA. Sporadic private sexual involvement is enough to enable someone to avail themselves to the protections of the act if domestic violence occurs.

Garden State Anesthesia-Raritan Bay v. Sibilly, ___ N.J. Super.____ (Law Div. 2018)

 Issue: Is child support exempt from levy, attachment and execution on a money judgment against a parent?

Holding: Yes. Child support cannot be the subject of a levy from an ordinary money judgment against a parent.

Discussion:  Plaintiff (“medical office”) filed a complaint for an unpaid medical bill on April 7, 2011 and default judgment was entered on June 7, 2017 in the amount of $1,871.64 plus costs and statutory attorney’s fees pursuant to N.J.S.A. 22A:2-42.  Thereafter, a Writ of Execution Against Goods and Chattels was issued and a court officer levied on a checking and savings account belonging to the Defendant (“patient”) at JP Morgan Chase.

Subsequently, on June 30, 2017, the patient filed an objection to the levy.  The patient argued that the funds held in her JP Morgan Chase savings account in the amount of $825 were child support payments which were recently paid to her checking account and transferred into her savings account.  The two child support payments were $515.67 each.  The remainder of the money in the savings account was either interest or from an unknown source.

The trial court considered the fact that no statute expressly covers child support as a basis for an objection to a levy, but ruled in accordance with the long-standing principle that “the right to child support belongs to the child and cannot be waived by the custodial parent.”  Pascale v. Pascale, 140 N.J. 583, 591 (1995). The trial court explained that if a parent receives child support for his or her child, the money belongs to the child and cannot be used to satisfy a judgment against the parent.

Ultimately, the trial court reasoned that money owed to someone else, including by a parent, cannot be pursued against an innocent owner, including a child.  Unless there is some way to show that a child is liable on a debt, which is a covered type of expense for which the judgment or order for child support is meant, the trial court held that money is not subject to levy if there is already an order or judgment directing the use of that money for the benefit of the child.

Observation: Although this issue was not discussed in the case, one of the obvious red flags is the tracing issue. How do we know that the $825 in the savings account, which was transferred from the patient’s checking account, consisted of child support payments? It is more likely that the $825 consisted of a mix of child support payments as well as payroll and other funds which could be subject to the levy. It seems as though the court avoided this issue for purposes of protecting the children in order to ensure that there was enough money to provide for their care.

Practice Tip:  In appropriate cases, practitioners should now advise clients who receive child support to open a separate account dedicated to child support, so as to immunize such accounts from creditors.


* I wish to thank my associates, John P. Paone, III and Victoria E. Paone, for their assistance in the preparation of this article.

[1] As a reminder, “A  tenancy  by  the  entirety  is  a  form  of  joint  property ownership  available  only  to  spouses  that  is  created  ‘when property is held by a husband and wife with each becoming seized and  possessed  of  the  entire  estate.’”  In other words, when one spouse passes, the other spouse retains 100% ownership of the property. Moreover, one spouse cannot force the sale of the property without the consent of the other spouse.