The Ten Most Important Family Law Cases Reported in 2019

                                                                                                By: John P. Paone, Jr.*

In the year 2019, several important family law cases were reported.  Fattore v. Fattore was a post-judgment matter where the court opened the door to the possibility of vacating a permanent waiver of alimony; Landau v. Landau dealt with cohabitation under the new statute and the right to discovery in the context of a post-judgment motion to terminate alimony; A.J. v. R.J. extended the law of Bisbing on interstate removal, to intrastate removal; Woytas v. Greenwood Tree Experts, Inc. addressed the failure to maintain life insurance as security for alimony upon the death of the payor; Orlowski v. Orlowski addressed the use of a QDRO to collect child support and equitable distribution from retirement funds; and Holtham v. Lucas addressed the enforceability of a penalty clause in a Marital Settlement Agreement.

These and other cases made for a quite interesting, if not landmark, year of reported cases impacting our practice.  Clearly, the Hon. Hany Mawla, J.A.D. (who practiced family law and who sat as a presiding judge in the Family Part) continues to make his mark as one of the most influential voices in the Appellate Division on topics relevant to all family law practitioners.

The following are my selections for the ten most important family law cases reported in 2019.

Fattore v. Fattore, 458 N.J. Super. 75 (App. Div. 2019)

Issue: Did the trial court commit error by requiring the Husband to pay the Wife her share of equitable distribution of his military pension from another asset or income?

Holding: Yes. The Appellate Division determined that the holding in Howell v. Howell, 581 U.S. ___ (2017), a United States Supreme Court case, prohibited state courts from reimbursing a party for the loss of his or her share of a military pension following the adverse party’s election to receive veteran disability benefits. However, the Appellate Division agreed with the Wife that the Husband’s waiver of pension benefits in exchange for receipt of veteran disability benefits constituted a “substantial and permanent change in circumstances,” warranting a consideration of a potential alimony award.

Discussion: Defendant (Husband) and Plaintiff (Wife) were divorced in 1999 after 35 years of marriage. The terms of the parties’ divorce were outlined in a Consent Dual Final Judgment of Divorce (“Agreement”). At the time of the parties’ divorce, the Husband was employed in the Army National Guard and the Wife was employed as an operating room nurse. Among other terms, the Agreement provided for a mutual waiver of alimony. Likewise, both parties agreed that the Wife would receive via QDRO 50% of the Husband’s military pension which was accumulated during the marriage.  A QDRO was in fact properly prepared and perfected.

Following the parties’ divorce, the Husband continued to serve in the Army National Guard until he became disabled in 2002. At that time, the Husband was able to collect his pension but in lieu thereof, he later opted to receive VA disability benefits which were tax-free.  In 2010, the Wife contacted the Army to inquire as to why she did not yet receive her share of the Husband’s military pension payments. The Army informed the Wife that because the Husband opted to receive tax-free VA disability benefits, this effectively supplanted the Husband’s right to receive military pension benefits. The Army further explained that, pursuant to the Uniformed Services Former Spouses Protection Act (“USFSPA”), veteran disability payments cannot be divided.

In 2016, the Wife filed a motion to compel the Husband to compensate her for her 50% share of the military pension. Following a plenary hearing, the trial court rendered a decision dated February 25, 2017 holding, that while the Husband did not intentionally prevent the Wife from collecting her share of the military pension (as he was unaware of the federal law), the circumstances worked an unfair result.  The trial court appointed a pension appraiser to determine the value of the Wife’s 50% marital interest in the Husband’s military pension and, thereafter, directed the Husband to pay the Plaintiff $1,800.00 per month from either the cash surrender value from the liquidation of his life insurance policy or from his social security income.

In making this decision, the trial court relied on Whitfield v. Whitfield, 373 N.J. Super. 573 (App. Div. 2004) wherein the appellate tribunal required the husband, who had served in the military, to compensate the former wife for the decrease in his pension benefits, which was occasioned by his voluntary election of disability benefits. The trial court further clarified that the decision to compensate the Wife for her loss of a portion of the Husband’s military benefits was not preempted by federal law because the decision did not directly cause veteran disability benefits to be divided or require the Husband to compensate the Wife utilizing veteran disability funds. The trial court also awarded the Wife counsel fees in the amount of $10,000.00 because the trial court found that the Wife had no means to pay them and that her application was brought in good faith.

On appeal, the Husband asserted that the trial court committed error by ordering him to pay the Wife her share of a military pension which no longer existed. Specifically, the Husband claimed that reimbursing the Wife for lost military pension payments was preempted by the holding in the United States Supreme Court case, Howell v. Howell. In Howell, the Supreme Court specifically held, “federal law completely preempts the States from treating waived military retirement pay as divisible community property.” Additionally, the Husband argued that an Order requiring him to pay the Wife’s legal fees should also be reversed as the trial court erroneously applied the law to compensate the Wife when in fact, no such right existed. In response, the Wife argued that if the trial court’s decision is preempted by Howell, then the court must award alimony due to the substantial change of circumstances since the Agreement was entered.  The Wife’s brief represented that the Wife’s sole income consisted of her pension of $299.50 per month and Social Security of $1,532.83 per month.  Conversely, the Husband’s non-taxable disability benefit totaled $80,000.00 per year and his Social Security totaled approximately $21,000.00 per year.

The Appellate Division reversed the trial court’s decision and remanded the case to permit the Wife to pursue her alimony claim. The Appellate Division agreed with the Husband that the trial court’s decision was erroneous as a matter of law as Howell made clear that the States are prohibited from treating waived military retirement pay as divisible community property. Notwithstanding, the Appellate Division determined that the acceptance of veteran disability benefits and waiver of pension benefits was a substantial and permanent change in circumstances warranting a consideration of an award of alimony for the Wife.

Despite the fact that the parties mutually agreed to waive alimony, the Appellate Division held, “an alimony waiver cannot withstand such a substantial change in circumstances as occurred here, and it is neither fair nor equitable.” The Appellate Division further emphasized that spouses “owe a duty of fairness to one another,” even at the end of a marriage. Moreover, pursuant to Crews v. Crews, 164 N.J. 11 (2000), the Appellate Division noted that the court possesses the authority to “establish alimony after a Judgment of Divorce” and that this case was appropriate for the consideration of alimony because the main reason that the Wife waived alimony was because she expected to receive pension payments. Finally, although the Appellate Division reversed the award of counsel fees due to the trial court’s mistaken interpretation of federal law, the Appellate Division explained that a court may award attorney fees regardless of a “party’s success” as discussed in Anzalone v. Anzalone Bros., Inc., 185 N.J. Super. 483 (App. Div. 1982).

Observation: As a preliminary matter, it is important to understand that the Howell decision came after the trial court’s decision, which is the reason why that court erroneously relied on Whitfield. Nevertheless, the Appellate Division’s reverse and remand makes this case important far beyond the subject of distributing military retirement benefits. For practitioners Fattore raises the potential that any alimony waiver (or anti-Lepis clause) may be reversed if the surrounding circumstances make the waiver inequitable. For those seeking a more narrow interpretation of Fattore, it can be argued that the appellate panel believed that a potential alimony award was permissible for this case because of two reasons: (1) the Wife was an alimony candidate as she earned significantly less than the Husband during the marriage; and (2) the Wife specifically did not seek alimony from the Husband because she believed that she would be receiving pension payments. Unfortunately for the Wife, the parties’ Settlement Agreement did not recite this quid pro quo.

Query, if this was not a potential alimony case or if the Wife had remarried, how could the Wife have been made whole in light of Howell and now Fattore when military pension benefits are effectively lost because they become VA disability benefits?  The practice tip is that practitioners need to address this eventuality (the waiver of military benefits) in drafting a settlement agreement and provide for alternate relief where the non-pensioned spouse is deprived of his or her share of the other spouse’s military pension due to conversion to disability benefits or otherwise.

Whenever a waiver of alimony is vacated, shock waves travel through the family law community.  Many practitioners and the courts routinely work under the assumption that a waiver of alimony is permanent.  And yet, we have known at least since 1988 from Justice Long’s (then sitting in the Appellate Division) decision in Adler v. Adler, 229 N.J. Super. 496 (App. Div. 1988) (the deterioration of a pre-existing eye condition impairing the Wife’s ability to support herself) that a party may return to court to seek alimony after a Judgment of Divorce where no alimony was provided.  In Adler, the Wife had demonstrated a prima facie case of changed circumstances justifying a hearing on her request for alimony where the Property Settlement Agreement was silent as to the issue of alimony.

There is also important language in Fattore on the subject of counsel fees.  Specifically, the Appellate Division makes clear that a trial judge has the authority to award counsel fees to a litigant to level the playing field “irrespective of that party’s success in the matrimonial action.” Here, while the court vacated the counsel fee award to the Wife, it made clear that the trial judge on remand is free to re-award counsel fees to the Wife to enable her to prosecute her alimony claim.

Landau v. Landau, 461 N.J. Super. 107 (App. Div. 2019),

certif. denied ___ N.J. ___ (2019) (WL 6727498) 

Issue: Does the changed circumstances standard of Lepis v. Lepis, 83 N.J. 139, 157 (1980) continue to  apply  to  a  motion  to  suspend  or  terminate  alimony  based  on cohabitation  following  the  2014  amendments  to  the  alimony  statute,  N.J.S.A. 2A:34-23(n)?

Holding: Yes. “The party seeking modification still has the burden of  showing  the  changed circumstance of cohabitation  so  as  to  warrant  relief from  an  alimony  obligation” and the 2014 amendments to the alimony statute did not alter the requirement  that  “[a]  prima  facie  showing  of  changed  circumstances  must  be made  before  a  court will  order  discovery  of  an  ex-spouse’s  financial  status.”  Lepis, 83 N.J. at 157.

Discussion: Husband and Wife were divorced in 2014 after an almost eleven-year marriage and three children.  The parties divorced after the effective date of the 2014 amendments to the alimony statute.  Pursuant to the parties’ Matrimonial Settlement Agreement (“MSA”), the parties agreed that the Wife would receive limited duration alimony (starting at $44,000.00 per month and decreasing to $40,000.00 per month) until March 2022.   In accordance with the MSA, alimony would terminate following “the death of either party, the Wife’s remarriage or March 31, 2022, whichever first occurred.”  The  MSA further  provided,  “notwithstanding  anything contained herein  to  the  contrary,  the  Wife’s  cohabitation  as  defined  by then-current  statutory  and  case  law shall  be  a  basis  for  the Husband  to  file  an application   seeking   review   and   potential   modification,   suspension  or termination of alimony pursuant to New Jersey law.”

In December 2017, the Husband moved to terminate alimony based on the Wife’s alleged cohabitation with her boyfriend. Pursuant to his motion, the Husband proffered that the Wife and her boyfriend had traveled together, attended social activities with the parties’ children, and posted photos as a couple on social media. In addition, the Husband averred that the Wife told him that she moved her brokerage accounts to the firm where her boyfriend was employed and received a “friends and family discount.” The Husband also attached a Certification from an ex-state trooper, hired by the Husband to surveil the Wife.  That Certification averred that that the Wife and her boyfriend resided together for 75% of the time that he observed the Wife at her home. In his Certification, the ex-state trooper did not specify a timeline for his surveillance and only documented two instances in which he spotted the Wife or her boyfriend leaving the other’s home in the morning.

The Wife opposed the motion and cross-moved to restrain the Husband from harassing  her  and for counsel  fees  for  having  to  defend  a  motion without  “prima  facie  support.”  The Wife argued that having a boyfriend does not mean that she is cohabiting.  She acknowledged that they traveled together, each paying their own way, and occasionally slept over at one another’s home. The Wife denied, however, that she and her boyfriend had a relationship tantamount to marriage because they performed  no  household chores  for  one another,  had  no  intertwined  finances,  did  not  share  living  expenses  and  did  not have  authority  over  one  another’s  children.    She further explained that they took separate family vacations and the boyfriend was absent from important family events, including her law school graduation.

Following oral argument on the motions, the trial court decided, “[w]e are not at the stage where it would be appropriate for [the court] to find a prima facie case, which would   authorize discovery and also very significantly require a plenary hearing.” Notwithstanding that determination, the trial court permitted the Husband to conduct limited discovery with the expectation that the Husband would “re-file [his] motion, if [he thought he could] make out a prima facie case.”  The  trial court explained  that  “because  of  the nature  of  a  cohabitation relationship,  the  difficulties  of  proving  it,  .  .  .  and  the  proffered  evidence  that is consistent  with  potential  concealment of  such  a  relationship,” including the Wife’s removal of several Facebook posts concerning her boyfriend, permitting the Husband to effectuate limited discovery in order to establish a prima facie case of cohabitation was fair and equitable.

The trial court permitted limited discovery essentially to determine whether the Husband could establish a prima facie case.  However, when the parties disputed what was meant by limited discovery, the matter was conferenced by the trial court.  Thereafter, the trial court specifically allowed for the Husband to discover the Wife’s financial documents such as tax returns, bank account statements and other financial records. In addition to financial discovery, the trial court also permitted the Husband to discover “[c]opies of all communications between [the Wife] and [her boyfriend],” including but not limited to “letters, cards, emails, texts or voicemails,” and other related personal documents.  After the Wife’s motion for reconsideration was denied, the Wife filed for leave to appeal and a stay of discovery, which was granted by the Appellate Division.

On appeal, the Wife argued that ordering discovery without a prima facie showing of cohabitation was reversible error. The Husband contended, however, that the Wife’s position that he “first demonstrate a prima facie showing of cohabitation” before being permitted to conduct discovery “will render the 2014 amendments of N.J.S.A. 2A:34-23(n) essentially meaningless.” He further argued that, pursuant to the 2014 amendments, “our Legislature signaled a clear departure from then-existing law — i.e., Lepis . . . and its progeny — with respect to analyzing motions to terminate alimony based upon cohabitation.” The Appellate Division disagreed with the Husband.

The appellate court found “no indication that the Legislature evinced any intention to alter the Lepis changed circumstances paradigm when it defined cohabitation and enumerated the factors a court is to consider in determining ‘whether cohabitation is occurring’ in the 2014 amendments to N.J.S.A. 2A:34-23.”  Because the trial court determined that the Husband had not established a prima facie case of changed circumstances based on the Wife’s alleged cohabitation, the Appellate Division ruled that the Husband was not entitled to discovery under Lepis. The appellate court further noted that nothing in the 2014 amendments to the alimony statute altered “the procedures that a court should employ” when deciding a motion for modification of a prior Order. Accordingly, the trial court’s Order for discovery was reversed.


Pursuant to N.J.S.A. 2A:34-23(n):

Alimony  may  be  suspended  or  terminated  if  the  payee  cohabits  with  another  person.  Cohabitation  involves  a  mutually  supportive,  intimate  personal  relationship  in  which  a  couple  has  undertaken  duties  and  privileges  that  are  commonly  associated  with  marriage  or  civil union but does not necessarily maintain a single common household. When assessing whether cohabitation is occurring, the court shall consider the following:     

(1)       Intertwined finances such as joint bank accounts and other joint holdings or liabilities;    

(2)       Sharing or joint responsibility for living expenses; 

(3)       Recognition of the relationship in the couple’s social and family circle;

(4)       Living  together,  the  frequency  of  contact,  the  duration  of  the relationship,  and  other  indicia of a mutually supportive intimate personal relationship;    

(5)       Sharing household chores; 

(6)       Whether the recipient of alimony has received an enforceable promise of support from another person within the meaning of subsection h. of R.S.25:1-5; and    

(7)      All other relevant evidence.

In evaluating whether cohabitation is occurring and whether alimony should be suspended or  terminated,  the  court  shall  also  consider  the  length  of  the  relationship. A court may not find an absence of cohabitation solely on grounds that the couple does not live together on a full-time basis.

This case has caused much upsetment in the legal community.  The narrow legal issue of law ruled upon by the Appellate Division is not the source of distress among family lawyers (i.e. – the new statute did not change Lepis).  Indeed, most would agree that if you fail to establish a prima facie case of changed circumstances, you should not be entitled to discovery.  Where the legal community is troubled by this opinion lies in its failure to address the soundness of the trial court’s decision that held that a prima facie case was not established.  Indeed, this opinion leaves many to ask how exactly do you establish a prima facie case if the proofs submitted in Landau are deemed insufficient.

The confusion comes from the fact that the Appellate Division was not asked to address and indeed never commented upon whether the proofs here established a prima facie case.  That is because the Husband did not challenge the trial court’s determination where it failed to find a prima facie case and instead argued that N.J.S.A. 2A:34-23(n) does not require that he first demonstrate a prima facie showing of cohabitation before being permitted to conduct discovery.  Be prepared to argue against counsel attempting to cite Landau on what constitutes a prima facie case of cohabitation.  Landau should be limited to defining when you are allowed to obtain discovery in a post-judgment cohabitation case.

Kudos to Judge Accurso and the Appellate Division for hearing this interlocutory appeal.  The court could have waited for the final outcome in the trial court and addressed the matter on appeal. By taking the matter interlocutory, the Appellate Division saved the parties the cost of discovery and potentially a trial. I would urge all members of the Appellate Division to follow Judge Accurso’s lead in being open to hearing future interlocutory matters.

A.J. v. R.J., 461 N.J. Super. 173 (App. Div. 2019)

Issue: Did the trial court abuse its discretion in sanctioning the mother pursuant to R. 1:10-3 and R. 5:3-7(a)(6) when it transferred custody of the children to the father as a result of the mother’s failure to abide by its prior order related to her unilateral intra-state relocation of the children?

Holding: Yes.  While transfer of custody is a sanction that is available to the trial court under R. 1:10-3 and R. 5:3-7(a)(6) in instances where the custodial parent is in violation of a custody and parenting time order, the trial court imposed this sanction improperly without undertaking an analysis of the best interest factors pursuant to N.J.S.A. 9:2-4 which is required when the trial court exercises its authority under R. 1:10-3 and R. 5:3-7(a)(6).

Discussion:  The plaintiff (“mother”) and defendant (“father”) were married for five years before divorcing in 2013.  There were two children born of the marriage who were 10 years old and 8 years old at the time of the parties’ post-judgment proceedings.  The parties’ Marital Settlement Agreement provided that the mother would be designated as parent of primary residence and the father would be parent of alternate residence in which he would have parenting time every other weekend from Friday to Saturday and one midweek overnight.  Both parties resided in Union County post-divorce with the mother later remarrying and having a third child with her new husband.

The parties’ dispute at issue arose in March 2018 after the mother unilaterally moved with the children from Elizabeth to Mount Holly.  Although the father had requested that the mother remain local with the children so that it would not be unfair to him and the children when exercising his parenting time, the mother moved the children out of the county contrary to the father’s wishes.

The father proceeded to file an Order to Show Cause seeking to bar the mother from relocating with the children and to modify custody.  An order was thereafter entered by the trial court in May 2018 which in primary part granted the father temporary parenting time for three weekends each month with the children and scheduled a plenary hearing to determine whether the mother would be permitted to relocate with the children to Mount Holly.  The court further ordered that pending the hearing the children would continue to attend school in Elizabeth.

After conclusion of the plenary hearing in July 2018, the trial judge ruled that the mother had to return with the children and live within fifteen miles of the father’s residence in Union prior to the beginning of the 2018-2019 school year for the children.  Upon the mother returning with the children, the trial court instructed that the parties would abide by the parenting time schedule set forth in their Marital Settlement Agreement.

Despite the order that was entered by the trial court which required the mother to return, the plaintiff did not comply with the order.  In response, the father filed another Order to Show Cause which sought to compel the return of the mother and children and the temporary transfer of residential custody to him pending a final determination as to custody.  During oral argument on the father’s application, the mother’s attorney argued that it was impossible for her client to comply with the trial court’s order because she signed a lease in Mount Holly through April 2019 and did not have the financial ability to pay for another residence within the proximity established by the court.  The trial judge found that the mother’s reasons for noncompliance were completely self-inflicted and transferred custody of the children to the father based on R. 1:10-3 and R. 5:3-7(a).

As a result of the trial court transferring custody to the father, the mother filed an appeal challenging the trial court’s decision.  The mother claimed that the trial court made its ruling in error without issuing proper findings of fact based on the best interest factors pursuant to N.J.S.A. 9:2-4.  Additionally, the mother argued that the trial court utilized the incorrect legal standard when adjudicating her petition for intra-relocation when it applied the Baures factors rather than the best interest test.

The Appellate Division reversed and remanded the decision by the trial court, agreeing in substantial part with the mother that the best interest factors must be evaluated before making a determination under R. 5:3-7(a) to transfer custody of the children to the father.  The Court explained that since such a remedy impacts the welfare of the children, the trial judge is required to make the necessary statutory findings by undertaking a best interest analysis before ordering a custody transfer.

The Appellate Division also found that the trial court’s ruling was flawed since it applied the Baures standard in its relocation analysis rather than the best interest standard.  It noted that Baures was overturned by Bisbing v. Bisbing, 230 N.J. 309 (2017), which no longer recognized that there was a presumption for a custodial parent to relocate with their child.  This holds true not only in interstate removal cases, but also in intra-state relocations where the parent of alternate residence can establish that the move constitutes a change in circumstances affecting the best interests of the children.  Accordingly, the decision was further remanded by the Appellate Division in order for the trial court to examine and evaluate the reasonableness of the mother’s move based on the best interests of the children.

Observation:  Now we know that the Bisbing “best interest” standard for interstate relocation cases also applies in intrastate relocation cases.  Recall that Bisbing requires a review of N.J.S.A. 9:2-4(c) and the factors used in determining custody in determining whether the party relocating has the burden to establish that it is in the child’s best interest to grant removal.  In A.J. v. R.J., the Appellate Division flips the burden to the party opposing relocation (in this case, the parent of alternate residence) to show that “the move constitutes a change in circumstances affecting the best interests of the children.”

Still unanswered by Bisbing and now A.J. v. R.J. is what effect would an agreement not to relocate beyond a certain radius have in a case where a parent can meet the best interest standard to relocate.

This case reminds practitioners to look at R. 5:3-7(a) and the various forms of relief available to the court in cases where a party has violated an Order respecting custody or parenting time. Here, the trial court took the drastic action of transferring custody without holding a separate hearing on the custody issue.  R. 5:3-7(a) provides for other forms of relief which were not considered by the trial court short of the ultimate sanction of transferring custody such as: awarding compensatory time; awarding economic sanctions; counselling for the parent; modification of transportation arrangements; and participation by the parent in violation in an approved community service program.

Woytas v. Greenwood Tree Experts, Inc., 237 N.J. 501 (2019)

Issue: Did the ex-Husband breach the Marital Settlement Agreement (“MSA”) with regard to his obligation to maintain life insurance when he committed suicide in the years following his divorce proceedings?

Holding: Yes.  The ex-Husband obtained life insurance policies which included a suicide exclusion precluding recovery of benefits if the insured committed suicide within two years of purchase.  Based on the fact that his death occurred with the two year period, the ex-Husband was in violation of the MSA since he failed to maintain life insurance as security for his obligation to pay child support and alimony to his ex-Wife.

Issue: Did the trial court abuse its discretion by not providing a precise calculation of the benefits to be distributed from the ex-Husband’s estate to the ex-Wife as damages for the failure of the ex-Husband to maintain life insurance?

Holding: No.  In light of the substantial child support obligations and number of years that would continue to be owed to the ex-Wife, and the limited value of the ex-Husband’s estate, it was clear that there would be no remaining assets in the ex-Husband’s estate in order to pay such claims.  Thus, a remand for a precise damages calculation in the trial court was unnecessary in this case.

DiscussionThe ex-Husband (“Timothy”) and ex-Wife (“Christina”) were married for 17 years prior to getting divorced.  As part of their divorce, they entered into a MSA which required Timothy to pay $1,551.00 per month in child support to Christina for the support of their three children and to pay $5,000.00 per month in alimony to Christina for a period of 12 years.

In order to secure these obligations, the MSA stipulated that Timothy would maintain life insurance policies naming Christina and the children as beneficiaries.  Notably, there was a handwritten notation included in the MSA which stated that if either party failed to maintain life insurance, such party’s estate would be liable for any outstanding obligations owed under the agreement.

Timothy obtained a $100,000.00 life insurance policy designating Christina as beneficiary which also supplemented a separate $300,000.00 policy which Timothy had purchased during the marriage.  He also procured a $750,000.00 life insurance policy which designated the three children as beneficiaries.  Each of these policies included a suicide exclusion which provided that if Timothy should die within two years of the policy being established, the death benefit would only equal the amount of the monthly premiums paid plus interest.

Prior to two years from the effective date of the insurance policies, Timothy committed suicide and his current wife at the time, Sandra Woytas, was appointed the administratrix of his estate.  Timothy’s children with Christina were ages 16, 14, and 11 at the time of his death.  Based on the suicide exclusion of the life insurance policies, Christina was unable to recover the death benefit value of the policies.

As a result of being denied coverage under the life insurance policies, Christina filed a lawsuit in the Chancery Division against Timothy’s estate on her own behalf and on behalf of her three children to seek payment from the estate for the unrecoverable proceeds.  The Chancery Court relied on the plain language of the MSA in finding that Timothy had breached his obligations under the agreement to maintain life insurance.  Thus, the court concluded that Christina and the children were entitled to recover damages from Timothy’s estate and that their claims had first priority over any subordinate claims maintained against the estate.

With regard to the damages analysis, the court pronounced that there were too many uncertainties involved in order to calculate exact damages which would be owed by the estate.  Furthermore, there was no need for a precise calculation since the amount of child support which was owed by the estate far exceeded its net assets (represented to be only $446,966.47).  Thus, the chancery judge ordered Timothy’s estate to pay the balance of its assets to Christina for the benefit of the children.

On appeal, the Appellate Division affirmed the ruling of the Chancery Court in determining that Timothy breached the terms of the MSA regarding life insurance by committing suicide.  In addition, the appellate panel rejected the estate’s contention that the children should only be entitled to outstanding child support payments over time as they accrued.  The Appellate Division noted that the face value of $750,000.00 for the life insurance policy in which the children were named as beneficiaries was security for comprehensive support which was not just limited to the basic child support obligation.

The Supreme Court thereafter granted the estate’s petition for Certification.  Based on its review of the record below, the Supreme Court affirmed the result reached by the Chancery Division and Appellate Division in which they found that the terms of the MSA were breached.

As part of its reasoning, the Court relied on case law from other jurisdictions which held that the obligation to “maintain” life insurance requires that an ex-spouse be able to recover on the policy upon death.  The Court explained that Timothy’s suicide prevented the life insurance policies from continuing and deprived the children of the intended benefits from their policy.  Thus, the children were entitled to damages since Timothy’s actions thwarted the intent of the MSA which was to provide support for the children in the event of Timothy’s death.  The Supreme Court concluded that the children held an equitable interest in the proceeds of the life insurance policy for which principles of equity entitled them to have a priority claim against the estate.

Observation: The Woytas decision raises an important practice tip when drafting a divorce settlement agreement which includes a provision for life insurance.  The Agreement should provide that should the obligor fail to maintain the appropriate level of life insurance, the obligor’s estate shall be liable for any outstanding support obligation and life insurance deficiency.  Query, if this clause did not exist in this case whether the ex-wife’s claim against the estate would still be deemed a priority claim?

This case raises the question of how do we calculate the appropriate amount of life insurance to secure a child support or alimony award.  The trial court refused to look beyond the death benefit required under the MSA because it determined “the calculation of future child support and alimony payments relies on too many uncertainties.”  Especially as the death benefit required here vastly exceeded the assets of the estate, the Court did not look beyond the amount of life insurance but stated “in a closer case, a remand for a precise calculation of damages would be appropriate.”  For a discussion of how to calculate an appropriate life insurance death benefit, see Cutler & Durst:  Life Insurance as a Security Vehicle in Dissolution Cases, 12 J.Am. 155 (Summer 1994).

Orlowski v. Orlowski, 459 N.J. Super. 95 (App. Div. 2019)

Issue: May a court compel reimbursement of counsel fees, expert fees, and college tuition through a Qualified Domestic Relations Order (QDRO) against an obligor’s individual annuity account fund governed by the Employee Retirement Income Security Act (ERISA)?

Holding: Yes.  Unpaid awards for counsel fees and expert fees which are related to the collection of child support, equitable distribution, and college tuition reimbursement are enforceable by QDRO from pension funds when an ex-spouse is an alternative payee of the QDRO.  The right of the ex-spouse to have its fees paid out of retirement funds is permissible pursuant to ERISA.

Issue: May a court impose an enhance wage garnishment for enforcement of counsel fee awards which related to the enforcement or collection of support?

Holding: Yes.  Counsel fee judgments relating to child and spousal support are enforceable through an enhanced wage garnishment pursuant to statute 15 U.S.C. § 1673(b)(2)(A).

Discussion:  The plaintiff (“Wife”) and defendant (“Husband”) married in May 1993 and had two sons during their marriage.  The parties entered into a partial Property Settlement Agreement (“PSA”) which was incorporated into an amended Final Judgment of Divorce in 2016.  Notably, the PSA which the parties executed did not address equitable distribution of the Husband’s annuity account.  There were also open issues related to counsel fees and credits for the forensic accountant’s fees as a result of investigating the parties’ respective marital dissipation claims.

In addressing these outstanding issues, the trial court found that no legitimate reason was offered by the Husband as to how he utilized $118,175.00 in marital funds which he removed from his annuity.  The trial court also recognized that the Husband had greater annual income and assets than the Wife.  Based on its observations, the trial court awarded the Wife one-half of the marital assets dissipated by the Husband which were to be paid from the Husband’s annuity via QDRO.  The Husband was also required to pay $5,000.00 to the Wife as reimbursement for fees paid to the forensic accountant as part of her marital dissipation claim.  The Husband was further ordered to pay $48,194.98 to the Wife for counsel fees as part of the proceedings.

Following the trial court’s decision, the Husband refused to comply with the provisions in the PSA and subsequent court orders.  As a consequence of the Husband’s recalcitrance, the Wife was forced to file enforcement motions in April, May, September, and December 2016.  The trial court entered an Order in December 2016 which fixed a judgment against the Husband in the amount of $5,000.00 due to his failure to pay the forensic accountant’s fee reimbursement, imposed a wage execution against the Husband to collect $48,194.98 in counsel fees, and awarded the Wife counsel fees in the amount of $63,786.50 for the prior enforcement applications and proceedings.

In 2017, the Wife sought to enforce litigant’s rights and for sanctions due to the Husband’s refusal to comply with his financial obligations as previously directed by the trial court.  Although the trial court noted that the Husband had acted in bad faith throughout the entire history of the case, including dissipating marital funds and filing meritless motions, it declined to impose coercive sanctions or an enhanced wage garnishment in order to collect the counsel fees and fee reimbursement for the forensic accountant.  The trial court also rejected the Wife’s request to institute an enhanced wage garnishment for his portion of college tuition expenses.

The Wife on appeal sought to compel the enforcement of the counsel fee judgments, expert fee reimbursement, and college tuition award by way of a QDRO against the Husband’s annuity funds.  She also contended that the trial court erred in not imposing a enhance wage garnishment in order to enforce the counsel fee judgments.

Upon review of the factual findings and the record below, the Appellate Division reversed the ruling of the trial court and held that the Wife was entitled to enforce the counsel and expert fee awards through a QDRO which named her as alternate payee.  The Appellate Division found that the fees should be satisfied against the Husband’s annuity funds as it was clear there were no other liquid assets sufficient in order to satisfy the fee awards.

The Court also reviewed the statutory language and provisions under ERISA which applied to the Husband’s annuity.  It found that a proposed QDRO was appropriate under the circumstances in order to enforce the fee provisions since the Wife was properly classified as an alternate payee, the prior court orders for fees related to either alimony, child support, or equitable distribution, and the counsel fee obligation was assessed prior to the Husband’s annuity reaching pay status.  With regard to college tuition, the Appellate Division noted that it is in essence a derivative of child support since college costs are recognized as a form of support for emancipated children.  Thus, the Appellate Division concluded that the provisions under ERISA did not prohibit the Wife from recovering her fees by way of a QDRO.

As to the other point of the Wife’s appeal regarding an enhanced wage execution, the Appellate Division agreed with the Wife that the law provides for such a remedy when enforcing orders of support.  Notably, the Court acknowledged that domestic support orders are enforceable through an enhanced wage execution of fifty-five percent (55%) of the obligor’s disposable income.  Pursuant to N.J.S.A. 2A:17-56.52, child support is defined as including attorney’s fees and related costs.  The Court reasoned that because Wife was awarded attorney’s fees as a result of having to enforce the Husband’s child support obligations, they were recoverable through an enhanced wage garnishment.  The Appellate Division made clear that this form of relief was overlooked by the trial court in its prior orders.

Observation:  ERISA was enacted by Congress to protect employees and their “dependents” who rely on retirement plans.  In most cases, lawful creditors cannot attach the debtor’s retirement funds protected by ERISA.  Furthermore,  Johnson v. Johnson, 320 N.J. Super. 371 (App. Div. 1999) had held that attorneys fees to be paid directly to an attorney ordered as part of a Final Judgment of Divorce could not be satisfied from an annuity under ERISA’s antialienation clause. Here, the QDRO was requested to protect the “dependents” of the pensioner which the court clearly viewed as entirely within the bounds of ERISA.

ERISA does provide that the entry of a QDRO is an exception to the statute’s antialienation provision (keep in mind a divorce decree such as existed in Johnson was not a QDRO).  The Orlowski decision illustrates that where there is no other means by which unpaid child support, alimony, or college costs may be satisfied, a court may authorize the use of a QDRO to invade the non-compliant spouse’s retirement assets to satisfy these financial obligations.

In Orlowski, the utilization of the QDRO was an extraordinary remedy since the Husband had no other liquid assets and was blatantly violating court orders.  Family law practitioners must understand that the party who seeks collection of support and fees through a QDRO must be able to show the following: (1) the QDRO is being used for the benefit of the former spouse or child; (2) the QDRO can only be used to enforce amounts owed pursuant to a specific court order; (3) the obligor has no other assets available; and (4) the QDRO must abide by the rules and requirements of the obligor’s retirement plan.

The take away from Orlowski is simple: while creditors may not be able to attach retirement funds protected by ERISA, if you fall within the class of alternate payees (here a dependent of the pensioner), the pension may be fair game to collect a family part obligation.

Holtham v. Lucas, 460 N.J. Super. 308 (App. Div. 2019)

Issue: Does the penalty rule under traditional contract law get applied with equal  force  to  marital settlement  agreements  embodied  in  final  divorce  judgments?

Holding: No.  A penalty clause may be enforced in matrimonial settlement agreements to secure post-divorce harmony and stability.   However, the  family  court  retains  the  inherent  power  to  modify  such provisions  to  assure  fairness  and  equity.

Discussion: The Husband and Wife were divorced after five years of marriage.  Relevant to this appeal, the terms of the martial settlement agreement (“MSA”) provided that the Wife would retain exclusive  use  of  the  2009  Mercedes  she  then  possessed,  and  that  the Husband would  pay the remaining balance on the auto loan totaling $50,000.00 by July 9, 2017, and then transfer clear title to the Wife.  In addition, the MSA included a mutual   release   of   all   prior   claims.  Furthermore, the MSA  stated  that  if  Husband  defaulted  “in  any   obligations”  in  the   MSA,  the Wife  would  be   entitled  to reasonable  counsel  fees  incurred  to  enforce,  and  “a  per  diem  penalty  of $150.00 for every day that husband fail[ed] to comply with this agreement.”

In October 2017, the Wife’ attorney wrote a letter to the Husband’s attorney alleging that he failed to meet his obligations regarding the 2009 Mercedes and the Husband’s attorney replied that the Husband had met his obligations under the agreement and was prepared to transfer title, but also asserted various offsetting claims exceeding $65,000.    Although the Husband did not dispute that he waited until November 2017 to pay off the remaining car loan balance, he refused to pay the per diem fee despite countless requests from the Wife’s attorney.

Both parties filed motions with the trial court and the Husband’s attorney cited to MetLife    Capital    Financial    Corp.    v.    Washington    Avenue Associates, L.P., 159 N.J.  484,  493  (1999) to support his argument that per  diem  charges  do  not  constitute  reasonable  liquidated  damages  and  was instead  an  unenforceable  penalty.    The Wife’s counsel  argued  that  the Husband  was contractually  bound  by  the  MSA’s  penalty  provision.    After  taking  limited testimony  from  Husband,  the trial court  enforced  the  penalty  provision,  ordering the Husband to pay $18,450 (which consisted of $150 for each day between July 9 and  November  8),  plus  $6,013.50  in  attorney’s  fees.    The trial court further held   that the Husband had already forfeited his offsetting claims in the mutual release.

The Appellate Division heard the matter de novo because the damages clause presented a legal issue.  The Appellate Division first analyzed whether the damages clause constituted a penalty and considered two factors: (1) the extent the stipulated amount was within a plausible range of actual damages, viewed  from  either  the  time  of  contracting  or  breach;  and (2)  the  difficulty  of  calculating damages  upon  the breach. Ultimately, the Appellate Division determined that the damages clause was a penalty because the MSA  provided  no  basis  for  approximating  the Wife’s loss  at  $18,450 and the  $150  per  diem fee was not a reasonable prediction  of  damages  when  those  damages  could  range  from  substantial  to virtually non-existent.

Despite the fact that the Appellate Division found the provision in question  to be a penalty, which is normally unenforceable under traditional contract law, the Appellate Division determined that the  policies  underlying  those  contract  principles  do  not  apply with  equal  force  in  the  divorce  context.     For example, the Appellate Division noted that existing judicial sanctions currently exist in family law to deter breach   of   marital   settlement agreements. The Appellate Division pointed to  R. 5:3-7, which permits economic sanctions for parties  violating  an  order  on  custody,  parenting  time,  or  spousal  or  child support.   Although R. 5:3-7 does not address equitable distribution orders or judgments, the Appellate Division noted that sanctions may be imposed under R. 1:10-3 and that many other states enforce penalty clauses in matrimonial settings. See e.g.,  Dougan  v. Dougan, 970 A.2d 131, 133 (Conn. App. Ct. 2009), aff’d on other grounds, 21 A.3d 791 (Conn. 2011), (declining to void as against  public  policy  a  provision  that  imposed  ten-percent  interest  on  an amount payable, to run from the date of a divorce settlement agreement).

Most importantly, the Appellate Division relied on the fact that  a court will not disturb a parties’ agreement and the terms therein, unless it  is  unconscionable  or  the  product  of  fraud, undue  pressure,  or  coercion,  or  where  one  party  lacks  independent  counsel.  That said, the Appellate Division noted that a  family  judge  should  scrutinize  a  penalty  provision  in  light  of  the totality  of  circumstances.    Regarding  negotiations  preceding  the  provision’s adoption,  the  court  may  look  to  the  parties’ relative  bargaining  power  and sophistication,  their  understanding  of  the  provision,  and  whether  they  were assisted  by  independent  counsel.    Regarding  enforcement  in  a  specific  case, the court may consider the size of the penalty in light of the actual breach, and may reduce a penalty to assure it is proportionate to the violation and resulting harm,  which  may  include  emotional  distress  and  disruption  of  post-divorce peace.

In this case, the Appellate Division affirmed the trial court’s decision because  Plaintiff  is  a  sophisticated  businessman, he was a millionaire, he was represented by counsel  in  negotiating  the  MSA, his  breach  was  deliberate  and  lacking any  reasoned  justification.

Observation: The decision may come as a surprise to many people considering the Husband was only four months delinquent in fulfilling his obligation to pay off the car loan and the Wife did not suffer any damages because the car loan was paid off, albeit untimely, and she was never dispossessed of the vehicle. It appears from the decision that the court heavily relied on the fact that the Husband was a millionaire and had no legitimate reason for delaying the payment. If the Husband did not have the money to pay the car loan, he would not have likely been forced to pay the penalty.

Penalty provisions have long been used as a tool by family law attorneys to achieve compliance and to avoid the untold financial and emotional cost of having to return to court.  However, a liquidated damages provision in a civil contract will only be enforced if reasonable.  Its purpose is to compensate the promisee for non-performance – in which case we look to actual damages to determine whether the penalty is reasonable.  Put simply, under that test you cannot justify $18,450 in penalties for a 4 month delay in paying off an automobile loan.  But we already know that agreements under family law are not strictly bound by contract principles.

We know agreements in equity can be freely modified based on changed circumstances or when enforcement would become unfair, unjust, or inequitable.  Here the Appellate Division uses that principal to what may appear to some to turn the law on its head to make what some would see as an unreasonable provision enforceable.  In family law, the polestar is – tell me what is fair here – focusing on the $18,450 in penalties when only a fraction of that amount was incurred in damages (principally attorneys fees) does not get you the right answer.  What is fair is ensuring that someone with millions of dollars cannot make a mockery of our court of equity and in doing so, deprive the financially dependent party of closure and peace of mind.

J.G. v. J.H., 457 N.J. Super. 365 (App. Div. 2019)

Issue: Did the trial court commit error by failing to enter a discovery schedule and conduct a formal plenary hearing with regard to a FD non-dissolution action wherein the father sought to modify physical custody of the parties’ minor child?

Holding: Yes.  The Appellate Division determined that the trial court had effectively denied the parties procedural due process by refusing to allow each party to engage in discovery where there were materially conflicting representations of fact in a contested custody matter.  Furthermore, the Court held that the parties were deprived of an opportunity to cross-examine witnesses or call expert witnesses at the custody hearing which would have permitted the parties to gather relevant and admissible information and which may have served as the basis for an informed decision delivered by the trial court.

Discussion:  J.G. (“mother”) and J.H. (“father”) were involved in a non-marital romantic relationship which culminated in the birth of their son, John, in 2012.  The parties had entered into a FD Consent Order (“FD Order”) in 2014 in which they agreed to joint legal custody of John while the mother had primary residential custody and the father had liberal parenting time with their son.  Although the 2014 FD Order was later vacated because the parties had reconciled, the mother ultimately pursued a new relationship with another individual with whom she was engaged.

A few years later, the father alleged that on October 3, 2017, John was left alone with the mother’s fiancé, whom the father claimed was a drug user and was a convicted felon with multiple prison sentences and filed an Order to Show Cause seeking sole custody of John.  Although the trial court denied the father’s application because he failed to establish imminent irreparable harm, the trial court nonetheless awarded him temporary sole physical custody based on the nature of the allegations, which the trial court determined could “adversely impact” John who was only 4 years old.  The order that was entered by the trial court provided for the mother to have parenting time supervised by the maternal grandmother at a location outside of the mother’s home and provided a return date for a hearing.

The mother responded by filing her own Order to Show Cause in which she sought immediate primary custody of John alleging that he suffered harm by his abrupt separation from her.  However, this application was dismissed in its entirety by the trial court as there was no specificity or evidence of imminent harm.

On the return date for the father’s Order to Show Cause, the trial judge placed both parties under oath and took testimony of the parties.  The trial judge did not allow the mother’s attorney to participate in the proceedings and when the attorney requested that the matter be placed on the complex litigation track, the trial judge noted that it was an “FD matter” and that this request would be denied.  Thereafter, the trial court entered an order awarding joint legal and physical custody of John, with the father having primary residential custody.  The parenting time schedule that was fixed by the court permitted the father to have overnights with John from Monday through Friday each week, the mother to have parenting time with John after school Monday through Thursday each week, and the parties have alternate weekend parenting time.  After the mother expressed concern about the potential difficulties John would experience in adjusting to the parenting time schedule, the trial judge explained that the parties’ son had already been uprooted from his living arrangements pursuant to his prior order.

The Appellate Division reversed the decision of the trial court and remanded for a formal plenary hearing.  The Appellate Division found that the trial court did not take proper steps during the litigation process in order to arrive at a fair and appropriate decision.  The Appellate Division specifically noted that before a hearing took place, the parties should have been afforded the opportunity to go through the alternate dispute resolution process at mediation consistent with R. 1:40-5 and R. 5:8-1 in an attempt to resolve the outstanding custody issues.  If this was unsuccessful, then the parties should have been required to submit a proposed custody and visitation plan, which may have aided the trial court in fashioning a reasonable and practical parenting time schedule.

Furthermore, the Appellate Division found fault with the trial court because no discovery schedule was issued which would have allowed the parties to obtain information or documentation relevant to the facts in dispute at the hearing.  The Appellate Division made clear that although family judges have broad discretion to grant discovery in complex or summary FD matters, the fact that the trial judge in this case denied discovery without any reasonable explanation was improper and resulted in the trial court relying upon uncorroborated and unsupported evidence in reaching its ultimate decision as to custody and parenting time.  Finally, the Appellate Division determined that there was also a violation of procedural due process rights during the Order to Show Cause hearing as the parties were prohibited from calling witnesses, cross-examining witnesses, or even retaining custody experts who would be able to testify in support of their claims and positions.

ObservationBy the following first sentence of her opinion, Judge Koblitz effectively made clear that the treatment of FD matters as second class cases is an equal protection issue:

“Because the welfare of children is paramount whether the parents are married, divorced or never-married, we reverse and remand for a plenary hearing in this non-dissolution, FD, child custody matter.”

The Court has repeatedly made clear that despite the “summary” nature of matters under the FD docket, when genuine issues of material fact are presented, courts must treat these matters with the seriousness they deserve.  See R.K. and A.K. v. D.L., Jr., 434 N.J. Super. 113 (App. Div. 2014); Major v. Maguire, 224 N.J. 1 (2016).  Practitioners who believed that this right only concerned grandparent right cases on the FD docket are now disabused of that belief as a result of Judge Koblitz’s opinion.  Especially as more couples chose to live together and forego marriage, we should expect to see an increase in the level of complex matters being filed under the FD docket.  Attorneys having complex matters under the FD docket must be prepared to advocate for full discovery, the retention of experts, and a full hearing to ensure that due process is served.

State v. Hemenway, 239 N.J. 111 (2019)

IssueWas the search for firearms by the police which occurred at the defendant’s residence based on a domestic violence search warrant, pursuant to N.J.S.A. 2C:25-28(j), valid under the 4th Amendment of the U.S. Constitution and Article I, Paragraph 7 of the New Jersey Constitution?

HoldingNo.  The evidence which was secured at the scene by police was invalid since it stemmed from a search warrant not based on probable cause as the New Jersey Prevention Against Domestic Violence Act under N.J.S.A. 2C:25-28(j) requires that a family judge only have “reasonable cause” to believe that firearms are at the location of a domestic violence incident when issuing a search warrant for weapons.  Accordingly, N.J.S.A. 2C:25-28(j) must conform to the dictates of the U.S. Constitution and New Jersey Constitution which authorize reasonable searches and seizures based on probably cause.

DiscussionThe defendant, James Hemenway, was involved in a domestic incident with the victim, D.S., which led to the victim obtaining a Temporary Restraining Order (“TRO”) on June 28, 2012 in which she alleged that the defendant committed the predicate acts of assault, terroristic threats, criminal mischief, criminal trespass, and harassment.  During the TRO hearing before the Family Part judge, the victim stated that the defendant had handguns, knives, and switchblades which he kept inside special compartments in his three cars and apartments.  Although a TRO and warrant were issued by the family court to search for weapons, there were no findings made by the judge as to whether there was probable cause to believe that the defendant possessed weapons or that they would be found in the places to be searched.

On June 29, 2012, two Old Bridge police officers appeared at the defendant’s apartment and advised that they had a TRO and a warrant to search for weapons.  Upon the police officers being denied access to the apartment, the defendant was arrested for obstructing the search and the police officers thereafter secured a key to the apartment that they found upon performing a search incident to the arrest.  When the police officers entered the apartment, they immediately detected a strong odor of marijuana and conducted a protective sweep in which they also found cocaine and drug paraphernalia.  Although law enforcement also seized eight-caliber bullets in a safe in the defendant’s living room, no handguns or switchblades were found.

As a result of this search, the defendant was charged with various offenses which included first-degree possession of cocaine with intent to distribute and third-degree possession of cocaine.  The defendant proceeded to file a motion to suppress the evidence which was seized during the search.  However, the trial court denied the defendant’s application in determining that the Family Part judge was authorized under the New Jersey Prevention Against Domestic Violence Act to permit a search for weapons as there was reasonable basis to believe based on the victim’s testimony that weapons would be found in the defendant’s apartment.  The court also found that the domestic violence warrant which was issued by the judge to search the defendant’s apartment was not a pretext to conduct a search for drugs.

The defendant ultimately pled guilty to second-degree possession with intent to distribute cocaine and was sentenced to an eight-year term of imprisonment.  Following his sentencing, the defendant appealed the denial of his motion to suppress, challenging the validity of the search based on the Domestic Violence Act.  Specifically, the defendant claimed that the warrant to search for weapons was not predicated on probable cause and violated the 4th Amendment of the United States Constitution as well as Article I, Paragraph 7 of the New Jersey Constitution.

The Appellate Division upheld the trial court’s ruling which denied the defendant’s motion to suppress.  Although the Appellate Division noted that the Family Part judge failed to state the reasons for and scope of the search and seizure which was undertaken by law enforcement, it declined to address the constitutionality of the domestic violence law.  This issue was addressed by the New Jersey Supreme Court upon granting the defendant’s petition for certification.

The New Jersey Supreme Court held that the statutory language set forth in the New Jersey Prevention Against Domestic Violence Act, N.J.S.A. 2C:25-28(j), with regard to search of weapons must conform to the strictures of the 4th Amendment of the U.S. Constitution and Article I, Paragraph 7 of the New Jersey which require that warrants be issued based on a probable cause standard.  Although the Court noted that a search warrant under the domestic violence act is not aimed at discovering evidence of a crime, the probable cause requirement has been adaptable to civil and administrative search warrants under the federal constitutions and in other jurisdictions.

The Court was also guided by the law in other jurisdictions in which searches for weapons in cases of domestic violence was not permitted on a showing of less than probable cause.  The Court explained that only five states permit the issuance of a search warrant for weapons in conjunction with the entry of a restraining order.  New Jersey was the only state that had a statute authorizing the issuance of search warrant without the need for probable cause.

The majority on the Supreme Court were unpersuaded by the argument from the State that there should be a special needs carve out for domestic violence matters such that there should be an exception to the probable cause standard for those types of warrants.  The Court reasoned that by applying the probable cause standard in a fair and flexible manner, the right to privacy is preserved while also protecting domestic violence victims from imminent danger and harm.  Thus, before issuing a search warrant under the Domestic Violence Act, courts must now establish the following criteria: (1) there is probable cause to believe an act of domestic violence has been committed by the defendant; (2) there is probable cause to believe that a search for and seizure of weapons is necessary to protect life, health, or well-being of the victim; and (3) there is probable cause to believe that weapons will be located in the place to be searched.

Observation:  Think of this case as: the 4th Amendment of the United States Constitution meets the Prevention of Domestic Violence Act. Now, family courts can no longer issue search warrants without probable cause simply because it finds grounds to issue a TRO against a defendant.  There must be a nexus between the place being searched and the confiscation of the defendant’s weapons.  The case demonstrates how powerful the entry of a TRO is and now places a level of restraint before allowing unlimited searches and seizures.  The court must now articulate a probable cause basis for believing the defendant possessed weapons and that they would be found in the places to be searched.

E.S. v. C.D., 460 N.J. Super. 426 (Ch. Div. 2018)*

Issue:  Can the plaintiff avail herself to the protections under the Prevention of Domestic Violence Act (PDVA) where the defendant is a former live-in nanny?

Holding: Yes. The defendant, a live-in nanny, was a former household member and, therefore, the relationship with the plaintiff, her former employer, falls under the purview of the PDVA despite the economic aspect of their relationship.

Discussion: The defendant was employed as a full time live-in nanny at the plaintiff’s home from March 2018 until October 2018. In October 2018, the defendant was discharged from her position after assaulting the plaintiff’s child. Following the defendant’s termination from her employment, the plaintiff sought a temporary restraining against the defendant because she claimed that the defendant made several threatening phone calls and sent equally disturbing text messages to her.

The PDVA defines victims of domestic violence to include “any person eighteen years or older who has been subjected to domestic violence by a person who was at any time a household member.” In Coleman v. Romano, 388 N.J. Super. 342, 351-52 (Ch. Div. 2006), six elements were enumerated for purposes of determining whether a party constitutes a “household member”: “1) the nature and duration of the prior relationship; 2) whether the past relationship provides a special opportunity for abuse and controlling behavior; 3) the time since the end of the relationship; 4) the extent and nature of any intervening contacts; 5) the nature of the precipitating incident; and 6) the likelihood of ongoing contact or relationship.”

After considering the aforementioned factors, the trial court acknowledged that there was no expectation for a continued relationship with the child or plaintiff because the defendant had been terminated from her employment and moved out of the home. However, the trial court also considered the fact that the defendant resided in the plaintiff’s home for seven months and worked closely with both the plaintiff and the child. The trial court further determined that the defendant had the opportunity to acquire deeper insight into the personal life of the plaintiff and child, which rendered the opportunity for future abuse more prevalent. The court further considered that two months after the discharge, the plaintiff began to receive messages from the defendant which included the threat to expose personal information pertaining to the lives of the plaintiff and child. For example, the defendant threatened to leak personal information about the plaintiff that could have potentially affected custody of the child.

The trial court grappled with the economic relationship between both parties and reviewed the decision S.Z. v. M.C., 417 N.J. Super. 622 (App. Div. 2011). In that case, an employee of the plaintiff resided in the plaintiff’s home for seven months in order to fulfill his job as a bookkeeper and the Appellate Division determined that the aforesaid economic relationship did not disqualify the plaintiff from receiving protections provided under the PDVA. Ultimately, the trial court decided in this case that the absence of a traditional familial, sexual or romantic relationship does not automatically disqualify the victim from seeking relief under the PDVA. Notwithstanding the economic relationship of the parties, the trial court determined that the plaintiff and defendant were former household members and that the plaintiff had standing to seek the protections provided under the PDVA.

Observation:   The Prevention of Domestic Violence Act continues to be interpreted broadly to afford victims of domestic violence the maximum protection from abuse the law can provide. This case expands the definition of a household member to include a former live-in nanny. See R.G. v. R.G. 449 N.J. Super. 208 (App. Div. 2017) (holding that brothers who had not resided together for over 30 years were former household members, satisfying the jurisdictional requirements under the domestic violence statute).

Bata v. Konan, 460 N.J. Super. 562 (Ch. Div. 2019)

Issue: Is the child’s “home state” considered to be New Jersey for purposes of jurisdiction under the Uniform Child Custody Jurisdiction Act (“UCCJA”), pursuant to N.J.S.A. 2A:34-65, where the child had been physically present in both New Jersey and New York at least six months prior to the plaintiff filing an application for custody in the New Jersey Family Part?

Holding: No.  The periods of time which the child spent with the mother in New Jersey were merely temporary since the child’s schedule, activities, and majority of overnights took place in New York.  Thus, the times when the child was in New Jersey to spend time with the mother were visits which count as time in New York for purposes of determining the child’s home state and establishing jurisdiction.

Discussion: The plaintiff (“mother”) and the defendant (“father”) never married but during the course of their romantic relationship had one child who was three years old at the time of the parties’ legal proceedings.  The mother resides in New Jersey while the father resides in New York.  After the parties’ relationship ended, the mother filed an application in the New Jersey Family Part seeking sole legal custody of the child, physical custody, and an order of support.

During the course of the parties’ relationship, the mother worked as a flight attendant and resided in New Jersey. The father did not work outside the home and resided in New York.  After the child was born, the mother took three months off from work in order to care for the child in New Jersey while the father commuted from New York to visit the child.  When the mother returned to work, the parties’ agreed that the child was too young to travel to New York to stay with the father which led to an arrangement in which the child would continue to be cared for by a babysitter in New Jersey and when the father was able, he would travel to New Jersey to stay with the child.

Prior to the child’s 1st birthday, the parties’ changed the living arrangements and the child began spending time in both New Jersey and New York.  When the mother had time, she would travel to New York on several occasions to stay with the father and child.  After the parties’ ended their relationship around March 2017, the child continued to spend time with each parent while physically residing in each state when the child was in that parent’s care.

Upon the mother filing her application for custody and child support, the father opposed the application claiming that jurisdiction over this matter was not proper in New Jersey and that the correct forum was New York.  As a result of the conflicting factual issues between the parties and the jurisdictional challenge advanced by the father, the trial court scheduled a plenary hearing on December 5, 2018 during which time the father and mother were the only witnesses who testified.

After considering the parties’ testimony and evidence presented at the plenary hearing, the trial court found that it did not have jurisdiction in order for the mother’s custody and support claims to be adjudicated in New Jersey.  The testimony which was elicited during the hearing revealed that virtually all of the child’s school, church, programs, and regular activities took place in New York.  There was no evidence offered by the mother that it was ever the intent of the parties that the child attend school, church or ongoing programs in New Jersey.

With regard to the child’s living arrangements which had been established by the parties, the trial court noted that whether the child stayed in New Jersey or New York was completely dependent on the child’s school, events and activities, all of which in the six months prior to the mother’s application took precedence over the mother spending time the child in New Jersey.  While the trial court observed that the child’s social security card and passport listed her address as being in New Jersey, the evidence also showed that the father had set up a bank account for the child in New York and also notified his landlord that a child was residing in his apartment so that window guards were installed.

The trial court declared that the time which the mother spent with the child were merely visits since the child was temporarily absent from New York.  In reaching this conclusion, the Court relied upon statutory language in the UCCJA which defines a child’s “home state” as “the state in which a child has lived . . . for at least six consecutive months immediately before the commencement of a child custody proceeding.”  The Court also reviewed New York’s custody statute which provides that temporary absences are included in the time that a child is present in a state.

Thus, in determining that the visits that the child had with the mother in New Jersey amounted to nothing more than a “temporary absence,” the trial judge was required to consider, in primary part: (1) the parent’s purpose in removing the child from the state, rather than the length of the absence; (2) whether the parent remaining in the claimed home state believed the absence to be merely temporary; and (3) whether the absence was of indefinite duration based on a totality of the circumstances.  It was clear from the father’s testimony that he believed the time in New Jersey to be temporary absences from New York.  Furthermore, the trial court observed that the mother struggled to make a compelling argument during the plenary hearing that the child’s time in New Jersey was equally as important and meaningful as the child’s life in New York.

In ultimately assessing whether the absences in New Jersey were of indefinite duration such that jurisdiction in New York may not be the most appropriate forum to hear the case, the trial court concluded that not only was the time which the child spent with the mother not of indefinite duration, it was solely conditioned on the child’s needs, situation, and schedule which were impacted by the child’s ongoing programs in New York.  Thus, the trial court decided that it would be improper for New Jersey to maintain jurisdiction in this matter and that the mother’s application for custody and support should be dismissed.

Observation:   How do you establish the home state of a child when the parties reside in different states and the child goes back and forth during the six months immediately preceding the action?  The answer is not found in the law – but in the facts.  How those facts are framed made the difference here between having jurisdiction in New York and not New Jersey.  Attorneys must be prepared to investigate these facts and present them to the tribunal in determining the home state of the child.

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