By: John P. Paone, Jr.*

In 2020, the year of the pandemic, COVID-19 had a profound impact upon the practice of law.  With courthouses being closed and trials coming to a halt throughout the state, the development of the case law was slowed.  Many practitioners continue to resort to mediation and arbitration to move cases that they have been unable to move through the court system. However, matters resolving by way of Alternate Dispute Resolution (ADR) do not advance the case law. Nevertheless, despite these headwinds, 2020 had its share of important cases impacting the practice of family law.

Judge Fischer’s decision in allowing testimony via video teleconferencing was almost prescient. Judge Mawla’s decision on how to determine alimony made clear that there is no “alimony formula” and that there are no shortcuts to the tasks of quantifying the marital lifestyle and ability to pay. These and reported cases on the appointment of guardians, Social Security disability, palimony, household members and dating relationships in the context of domestic violence, and other matters made for an interesting year under unusual, if not unprecedented, circumstances. 

The following are my selections for the ten most important family law cases reported in 2020.

Pathri v. Kakarlamath, 462 N.J. Super. 208 (App. Div. 2020)

Issue: Did the trial court err in denying the plaintiff’s request to testify at his divorce trial by contemporaneous video transmission despite the fact that there is no court rule which expressly permits video testimony of witnesses?

Holding: Yes.  Although there is no court rule in New Jersey which addresses testimony by contemporaneous video transmission in matrimonial actions, trial courts should evaluate such requests on a case-by-case basis in which judges are to consider the following factors: 1.) the witness’ importance to the proceeding; 2.) the severity of the factual dispute to which the witness will testify; 3.) whether the factfinder is a judge or jury; 4.) balancing the costs of having the witness appear physically rather than in another form; 5.) whether the witness’ inability to be present in court at time of trial was foreseeable or preventable; or 6.) the witness’ difficulty in appearing in person.  These factors should have been addressed by the trial court since it was evident that the plaintiff was in India and could not travel to the United States due to issues with securing a visa.

Discussion: The plaintiff (“Husband”) and defendant (“Wife”) came to the United States from India in 2007 and had two children during the marriage.  The Husband filed a Complaint for Divorce in 2018 and shortly thereafter returned to India to live.  During the litigation, the children were residing with the Wife in Maryland.

The matter was scheduled for trial in June 2019.  A week before the trial was to begin, the Husband’s attorney filed a motion in limine to permit the Husband to testify at trial from India by contemporaneous video transmission since he was unsuccessful in obtaining a visa to travel back to the United States.  The trial judge denied the Husband’s application in finding that testimony in this form would prevent her ability to assess the credibility of the Husband at trial.  

The Husband filed an interlocutory appeal with the Appellate Division on an emergent basis and that court stayed the divorce trial and granted leave to appeal.  Thereafter, the Appellate Division vacated the trial court’s denial of the Husband’s motion in limine and remanded the matter back to the trial court for further proceedings.

Although the Appellate Division noted that there is no controlling statute which addresses video transmission of trial testimony in matrimonial matters, it looked to other areas of law in which courts have become more flexible and progressive as to other forms of witness testimony which do not require the physical appearance by the witness.  Notably, telephone testimony is authorized in guardianship cases when determining whether an individual is incapacitated.  Juries who serve in personal injury trials are oftentimes confronted with videotaped testimony of physicians and then must determine the weight and creditability to give to such testimony.  Video transmission testimony has also been permitted in certain municipal and criminal court proceedings.

The Appellate Division also reviewed case precedent such as State v. Santos, 201 N.J. 129, 139 (2012) in which the New Jersey Supreme Court made clear that the rules do not expressly require live in-person testimony nor do they outright exclude it either.  The Santos case relied on an earlier case titled Aqua Marine Products, Inc. v. Pathe Computer Control Systems Corp., 229 N.J. Super. 264 (App. Div. 1988), which set forth the criteria in which telephonic testimony may be allowed.  Specifically, the Appellate Division in Aqua Marine explained that exigency and certainty in the witness’ identity must satisfied to permit testimony by telephone.  

While the Appellate Division acknowledged that Aqua Marine preceded by many years the advent of other electronic communications such as Skype and FaceTime, the case offers considerable insight and guidance as to how New Jersey family courts must approach issues when circumstances beyond a witnesses’ control render them unable to physically appear at trial.  The Appellate Division made clear that while the law has not progressed in the same degree as technology, courts must have an appreciation for the extraordinary advances in technology and to allow flexibility in the law where appropriate.    

The Court also took note that Federal Rule of Civil Procedure 43(a) allows for trial testimony by contemporaneous video transmission when good cause is present and with appropriate safeguards.  The federal rules are designed to strike a balance between the compelling circumstances befalling a witness and the imposition of safeguards since in-person testimony remains the preferred form of evidence.

Based on its comprehensive review of New Jersey case law and the federal rules, the Appellate Division declared that trial courts should consider the following factors when faced with a request to appear electronically or by another medium: 1.) the witness’ importance to the proceeding; 2.) the severity of the factual dispute to which the witness will testify; 3.) whether the factfinder is a judge or jury; 4.) balancing the costs of having the witness appear physically rather than in another form; 5.) whether the witness’ inability to be present in court at time of trial was foreseeable or preventable; or 6.) the witness’ difficulty in appearing in person.  

In the present matter, it was clear that the trial judge gave no consideration to many of the above mentioned factors.  The Appellate Division pointed out that since the Husband moved to India shortly after he filed the Complaint for Divorce, the trial judge has a right to inquire as to the facts and circumstances surrounding the Husband’s travel arrangements and what steps the Husband could have taken in advance of his departure to avoid the need for relief on the eve of trial.  The Husband’s need for relief in this situation should then be balanced against considerations such as the cost of travel, prejudice as to delay in the case’s disposition, and the factfinder’s difficulty in evaluating the credibility and authenticity of the witness as to significant substantive issues that may impact the outcome of the trial.  Thus, the Appellate Division required the trial judge to revisit these issues on remand so as to allow the Husband an opportunity to make a more fulsome presentation in an effort to meet his burden as to the necessity of videotaped testimony. 

Observation: The importance and usefulness of video testimony as addressed in the Pathri v. Kakarlamath opinion has come to the forefront since the coronavirus pandemic and has had a significant impact on how courts have conducted divorce trials and plenary hearings in the Family Part.  Pursuant to Directive #12-20 which was promulgated by the New Jersey Administrative Office of the Courts on April 27, 2020, divorce trials as well as other court events may proceed remotely by utilizing virtual platforms such as Zoom or Microsoft Teams.  These mediums enable parties, witnesses, and attorneys with access to the internet to participate in video court proceedings.  Divorce trials and post-judgment plenary hearings may take place remotely with or without the parties’ consent.  New Jersey courts continue to monitor the efficacy of virtual hearings on a case-by-case basis and take into consideration such factors as the available resources, the type of event, and the participants as video hearings will undoubtedly have its limitations depending on the unique facts and circumstances of each case.   

This case also demonstrates proper use of a motion in limine. Practitioners should be advised that effective September 1, 2020, R. 4:25-8 went into effect which provides clarity for the procedure for bringing a motion in limine. As a general rule, these motions do not have a dispositive impact on a litigant’s entire case (like a summary judgment motion under R. 4:46 which must be filed at least 30 days prior to trial). They must be filed at least seven (7) days prior to trial and relate to the conduct of trial including presentation of evidence at trial.

S.W. v. G.M., 462 N.J. Super. 522 (App. Div. 2020)

Issue: Did the trial court abuse its discretion and depart from the legal principles set forth in Crews v. Crews, 164 N.J. 11 (2000), by fixing an alimony award for the defendant without making a precise and numeric determination as to the marital lifestyle?

Holding: Yes.  Although the trial court made determinations as to the parties’ incomes and their ability to earn, it failed to give due to consideration to the crux of the alimony analysis which is to evaluate and quantify the marital lifestyle budget.  Trial courts in matrimonial actions are required to make a finding of the marital lifestyle by articulating the characteristics of the lifestyle and thereafter quantifying it.  In the instant matter, the trial judge did not make any findings as to the marital budget and devised the alimony award in primary part by relying on the defendant’s current lifestyle budget while improperly supplementing it with expenses that the defendant once enjoyed during the marriage.

Discussion:  In February 2018, the Appellate Division remanded portions of this matrimonial matter back to the trial court in which the trial judge was directed to specifically quantify the marital lifestyle of the parties for alimony purposes and to make any adjustments to the life insurance award that the plaintiff (“Husband”) was to maintain as part of his obligation to pay alimony to the defendant (“Wife”). 

It was established during trial that the parties were involved in a long-term marriage in which they had three children who were all emancipated.  The Husband was the sole breadwinner of the marriage and was employed as a Senior Managing Director of a restructuring firm in which he had average earnings of $1,313,000.00 per year prior to the filing of the Complaint for Divorce.  Conversely, the Wife had been out of the workforce for decades and the trial judge found that the Wife did not have the ability to earn any income.

With regard to the marital lifestyle, the trial court noted that the parties had a high-end and upscale standard of living in which they did not save and engaged in spendthrift means.  Notably, the parties owned twelve boats during the marriage and enjoyed exclusive privileges such as country club memberships, yacht club membership, and dinner club benefit.  The Husband’s Case Information Statement (“CIS”) indicated that the parties had a vacation budget of $60,000.00 per year while the Wife alleged in her CIS that vacation expenses were $150,000.00 per year.  The parties were also involved in expensive hobbies and activities, in particular the Wife claimed to spend $100,000.00 on a photography venture.  The Husband’s CIS reflected total marital expenses of $80,853.00 per month while the Wife’s Case Information Statement listed the total marital lifestyle to be $92,147.00 per month.

After reviewing the testimony and evidence submitted by the parties, the trial judge initially ordered permanent alimony payable to the Wife at a rate of $22,000.00 per month from the Husband’s draw from his company and $186,000.00 per year payable from the bonus for a total yearly obligation of $450,000.00.  The trial judge further ordered the Husband to maintain life insurance in the amount of $4,000,000.00 to secure his alimony obligation to the Wife.  

Following the Appellate Division remanding the matter back to the trial court for further proceedings so that it could make numerical findings as to the marital lifestyle, the trial court entered an Order on August 27, 2018 in which it increased the Husband’s alimony obligation to $36,792.00 per month but credited the Husband’s pendente lite support based on the increase.  The trial judge also reduced the Husband’s life insurance obligation from $4 million to $2.2 million.  

The trial court pronounced that the alimony calculus was based in part on the Wife’s most recent CIS which reflected post-separation lifestyle expenses of $22,000.00 per month.  Although the trial court acknowledged that the parties had lived beyond their means for many years, and that their marital lifestyle exceeded the Husband’s income from his draws and expense account, it concluded that the Wife’s alimony award should be adjusted to $36,792.00 per month.  The trial judge made clear that the Wife excluded spending categories in the current lifestyle budget of her CIS that were previously enjoyed during the marriage and should be taken into account in order for the Wife to achieve a lifestyle reasonably comparable to the marriage.

After the trial court entered its amended Final Order following the remand as to alimony and life insurance, the Wife filed an appeal in claiming that the trial judge did not adhere to the Appellate Division’s instructions about evaluating the marital lifestyle and further based its alimony award on pendente lite support which was a far cry from the marital lifestyle.  Specifically, the Wife contends that the trial judge should have utilized the budget for the intact family and then assign a post-divorce budget for her.

The Appellate Division again reversed the decision of the trial court and remanded it back below for further proceedings. The Appellate Division found it to be troublesome that the trial judge disregarded the marital budget altogether and without rhyme or reason decided to supplement the Wife’s current budget with some expenses enjoyed during the marriage.  The Court explained that this methodologic is inherently flawed and also inconsistent with the trial judge’s findings that the marital lifestyle was greater than the Husband’s income.  

The Appellate Division noted that in many cases similar to the present factual scenario, parties who are married tend to live beyond their means in which their spending far and away exceeds their income.  However, it is the role of the factfinder to make appropriate findings of fact as to the reasons underlying the inflated lifestyle, whether it be from loans, parental support, or otherwise, and to then calculate the marital lifestyle for purposes of support.  The trial judge is free to utilize the testimony of the parties, the Case Information Statements of the parties which are admitted into evidence, expert analysis or reports if available, or other evidence that may be available in the record in order to calculate the marital lifestyle.  

The Appellate Division also pointed out that there is no short cut or formulaic approach in fashioning an alimony award and that due consideration must be given to all the applicable factors as set forth in N.J.S.A. 2A:34-23.  For example, there are some lifestyle expenses which may not be associated with either party when addressing alimony since they are expenses which go towards the support of the unemancipated children such as daycare, camps, lessons, and babysitting.  There are other expenses which may be satisfied by an asset or third-party source which have no relevance to the alimony issue such as private school tuition for the unemancipated children.  Thus, the trial court must endeavor to quantify the marital lifestyle before it may be able to make a proper determination as to the alimony award.

Similarly, the Appellate Division concluded that the amount of the Husband’s life insurance and extent of Mallamo credits being sought must also be remanded to the trial court.  The Appellate Division noted that without there being a clear understanding as to the amount of the Husband’s alimony obligation, the trial court would in essence be ruling upon these ancillary issues and claims blindly without having the full picture as to the nature of the marital lifestyle and the amount of the alimony award.     

Observation: S.W. v. G.M. makes clear that quantifying the marital lifestyle in order to determine a dependent spouse’s reasonable needs is the critical polestar for New Jersey courts when fixing a proper alimony award.  This case reaffirms the guiding principles in Lepis v. Lepis that when support of an economically dependent spouse is at issue, courts must evaluate the following factors: 1.) the dependent spouse’s needs; 2.) that spouse’s ability to contribute to the fulfillment of those needs; and 3.) the supporting spouse’s ability to maintain the dependent spouse at the former marital standard.  Courts must review these factors while also taking into consideration that neither party has a greater entitlement to the marital standard of living.  The marital lifestyle cannot be artificially created based on what a trial judge believes that a spouse may need in order to meet their lifestyle.  In this case, the trial court departed from the multi-step analysis in Lepis by failing to determine the Wife’s reasonable needs based on the lifestyle which the parties enjoyed during the marriage.  Instead, it mistakenly relied on the Wife’s post-complaint expenses based on the limited pendente lite support which she received as the benchmark for establishing the Wife’s alimony award.  However, this approach runs afoul of the principle that the needs of a dependent spouse are predicated on the marital lifestyle for an intact family rather than a current lifestyle which does not accurately reflect the marital standard.

This case makes clear that not all expenses incurred during the marriage comprise the marital lifestyle of the dependent spouse. So if the supporting spouse golfs and the dependent spouse does not, these golfing expenses do not become a part of the alimony calculus.

The Appellate Division provides clarity on determining the proper amount of life insurance to secure support obligations. Look at the Microsoft time value of money calculator and the article by Cutler & Durst referred to in the decision for guidance for ensuring that the life insurance amount “neither only meet a beneficiary’s bare needs, nor be a windfall.”

S.T. v. 1515 Broad Street, LLC, 241 N.J. 257 (2020)

Issue: Did the trial court follow proper legal procedures by appointing a guardian ad litem on behalf of the plaintiff to determine whether the plaintiff was mentally incapacitated and therefore incapable of evaluating the merits of her case without a hearing?

Holding: No.  Before depriving the plaintiff of the right to manage her legal affairs and control of the direction of the litigation, the trial court should have conducted a hearing to determine whether the plaintiff lacked sufficient capacity to govern herself and make decisions regarding the case by reason of mental illness or intellectual disability.  Although it was understandable that plaintiff’s attorney had significant concern as to whether the plaintiff understood the import of the settlement proposal that was conveyed in her matter, it was improper for the trial court to cede its responsibility from making an independent fact-finding inquiry as to the plaintiff’s alleged mental incapacity.  Thus, in the absence of a guardianship hearing and a judicial finding by clear and convincing evidence that the plaintiff lacked the requisite mental capacity to decide how to proceed in her lawsuit, the trial court did not have the authority to appoint a guardian ad litem on her behalf to accept a settlement against the plaintiff’s wishes.

Discussion: The plaintiff was a forty-four (44) year old chemical engineer who was a refugee from Vietnam and served in the United State Army.  On March 11, 2008, the plaintiff was leaving her place of work when she was struck in the head by a metal object which fell from above the doorway for the building.  

Approximately one year following the accident, the plaintiff was declared permanently disabled by the Social Security Administration and she was diagnosed by her clinical psychologist as suffering from cognitive, anxiety, and depression disorders.  In addition, her forensic psychiatrist diagnosed the plaintiff with post-concussion syndrome, major depressive disorder, post-traumatic migraine disorder, intracranial hypertension, and left trigeminal neuralgia.  

In February 2010, the plaintiff filed a civil complaint seeking damages for serious injuries suffered as a result of the alleged negligence of the building owner and other responsible parties.  During the course of the litigation, the defendants made an initial settlement proposal of $475,000.00 in an attempt to settle the case.  This offer was rejected by the plaintiff.  

Based on the belief by the plaintiff’s attorney that she was suffering from significant cognitive and mental impairments and that the rejection of the settlement offer was not in her best interests, her attorney made an application with the trial court to request the appointment of a guardian ad litem.  The court subsequently granted the application without the necessity of a hearing and further allowed the guardian ad litem to assess the plaintiff’s mental capacity in order to determine whether she was capable of making an informed decision as to the settlement offer and the strengths and weaknesses of her case.

As part of his role in the case, the guardian ad litem reviewed numerous materials including discovery which had been produced and medical records.  The guardian ad litem also interviewed the plaintiff twice in person and another time over the telephone.  The guardian ad litem thereafter reported to the court that based on his review of the documentation and interviews with the plaintiff, that he should be empowered with the authority to make a decision as to whether it is in the best interests of the plaintiff to settle her case or proceed with trial. 

An agreement was ultimately struck to settle the plaintiff’s lawsuit for $625,000.00.  Based on this resolution, the court conducted a “friendly hearing” to evaluate the reasonableness and fairness of the settlement and to decide whether it should be approved.  After the hearing concluded, the trial judge determined that the terms of the agreement were acceptable and it approved the deal over the plaintiff’s vehement objection which was noted at the hearing.  

The plaintiff appealed the decision of the trial court to uphold the settlement in primary part based on her claim that it was improper for the court to relieve her of the right to manage her affairs and make decisions in her case.  However, the Appellate Division disagreed with the plaintiff and affirmed the ruling by the trial court.  

In support of its holding, the Appellate Division found that there was good cause for the trial court to appoint a guardian ad litem based on the certification and representations provided by the plaintiff’s counsel that the plaintiff was mentally incapable of making decisions impacting the outcome of her case.  The Appellate Division also noted that there was ample evidence to support the trial court’s decision to approve the settlement.

Following the decision by the Appellate Division, the plaintiff filed a petition for certification with the New Jersey Supreme Court which challenged the ruling in the lower courts.  The plaintiff claimed that the trial court unjustly stripped her of the right to decide whether to settle or proceed to trial which was contrary to established legal procedures and a violation of her due process rights.

Upon review of the salient facts and record below, the New Jersey Supreme Court reversed the judgment by the Appellate Division and vacated the settlement approved by the trial court.  The New Jersey Supreme Court found that the trial court improperly abdicated its fact finding role by failing to hold a guardianship hearing to assess the plaintiff’s mental capacity before rendering its decision to appoint a guardian ad litem.  The Court declared that by the trial court not conducting a hearing when the issues as to the plaintiff’s alleged mental condition were brought to light, the plaintiff lost the right to control the lawsuit on her terms and thereby empowered the guardian ad litem to settle the case without going through proper legal channels to do so. 

Justice Albin, in writing the majority opinion for the Court, addressed the interplay between R. 4:26-2 and R. 4:86 which offers guidance as to how the case should have proceeded.  Under 4:26-2(b), the trial court may appoint a guardian ad litem for an allegedly mentally incapacitated person in order to “advise the court as to whether a formal competency hearing is necessary and if so, to represent the alleged mentally incapacitated person at that hearing.”  In this case, the plaintiff’s ability to comprehend and manage her affairs was clearly in dispute such that a competency hearing should have been scheduled and undertaken by the trial court.

If the trial court had adhered to the procedures as set forth in R. 4:26-2, it would have known to invoke the rigorous procedural safeguards of R. 4:86 which provide that an action for the appointment of a guardian must include a guardianship complaint and two affidavits from qualified medical professionals as to whether the plaintiff is unfit and unable to govern her affairs and to the extent to which she retain sufficient capacity to manage specific areas such as making certain legal decisions.  However, none of the essential procedural steps and requirements were followed in this case which necessitated the reversal and remand by the New Jersey Supreme Court.         

Observation:    While this case does not arise out of a Family Part action, it has immense importance for our area of practice. Frequently, judges are called upon in Family Part matters to appoint a guardian ad litem to make decisions for a party.  Prior to S.T. v. 1515 Broad Street, LLC, these appointments were regularly made without a formal competency hearing. After this case, before depriving a party of the right to control the direction of his or her case, the court must hold a hearing to determine whether the party lacks sufficient capacity to govern and manage affairs by reason of mental illness or intellectual disability. For an excellent discussion of the RPCs, what the attorney can or cannot do and differences between a general guardian and a guardian ad litem, see Tracy Julian, Rules and Procedures When You’re Concerned About Your Client’s Mental Health, Vol. 226 No 3 New Jersey Law Journal (January 20, 2020).

C.C. v. J.A.H., 463 N.J. Super. 419 (App. Div. 2020)

Issue: Did the trial court properly conclude that the parties who never had an in-person “date” were involved in a “dating relationship” within the context of the Prevention Against Domestic Violence Act (PDVA) in order to support the entry of a Final Restraining Order (FRO)?

Holding: Yes.  Although the parties never experienced a single in-person date, never visited each other’s homes, or met each other’s friends and family members, the parties engaged in an exorbitant string of intimate communications such that their interaction constituted a dating relationship within the meaning of the PDVA.

Discussion: The parties met at a fitness center in the summer of 2018 in which the plaintiff (age 22) was employed as the general manager and the defendant (age 42) was a member at the gym.  The defendant would exercise at the gym approximately three to five times per week in which on almost every occasion he sought the plaintiff’s attention an engaged in intimate conversations about her personal life.     

The defendant eventually gave the plaintiff his telephone number but plaintiff did not call him until later in 2018.  Many of the messages which were exchanged between the plaintiff and defendant were sexually provocative and explicit in nature.  Over the following weeks, the defendant declared his romantic interest in the plaintiff.  Over the course of one day the parties exchanged more than thirty (30) messages which the plaintiff described as flirting.  Although the parties at different points made clear their intentions to go on a date, they never met outside the fitness center.

By November 2018, the parties had exchanged 1097 text message and continued to communicate face-to-face at the gym.  During that month, the plaintiff messaged the defendant that she was not interested in a romantic relationship and no longer saw the need to communicate with him except for as a friend.  In response, the plaintiff received a barrage of crude, disparage, and abusive text messages in which the defendant threatened to contact the plaintiff’s employer in order to have her fired for allegedly taking an unauthorized photograph at the gym.

The plaintiff ultimately conducted an internet search of the defendant’s name and discovered that he had been convicted of stalking and harassing a woman in Pennsylvania.  Upon learning of this information, the plaintiff contacted local police and was advised to obtain a restraining order.  Although the TRO which was obtained by the plaintiff in December 2018 was dissolved for procedural reasons not on the merits, the plaintiff sought a second TRO in March 2019 and subsequently amended her TRO in April 2019.

Although the defendant did not testify at the final hearing, he filed a motion seeking to dismiss the TRO based on the argument that there were insufficient facts to establish that the parties were involved a dating relationship in order for the plaintiff to receive protection under the PDVA.  The trial court disagreed with the defendant and further found that the defendant committed harassment which was a predicate act of domestic violence and that there was a need to grant a FRO in order to protect the plaintiff.  

The defendant took the matter up on appeal maintaining in pertinent part that there was no basis to issue a FRO since the parties did not have a dating relationship and a FRO was not needed in order to protect the plaintiff against future acts of abuse. Upon review of this matter, the Appellate Division affirmed the decision of the trial court that the parties were in a dating relationship and that the entry of a FRO was appropriate.

The Appellate Division referred to the factors set forth in Andrews v. Rutherford, 363 N.J. Super. 252, 260 (Ch. Div. 2003) adopted in S.K. v. J.H., 426 N.J. Super. 230, 235 (App. Div. 2012) for determining whether the parties were involved in a dating relationship: (1) Was there a minimal social interpersonal bonding of the parties over and above casual fraternization?; (2) How long did the alleged dating activities continue prior to the acts of domestic violence?; (3) What were the nature and frequency of the parties’ interactions?; (4) What were the parties’ ongoing expectations with respect to the relationship, either individually or jointly?; (5) Did the parties demonstrate an affirmation of their relationship by statement or conduct?; and (6) Are there any other unique reasons to support the claim that a dating relationship exists?

While the Appellate Division acknowledged no one factor is determinative, it pronounced that the proliferate and intimate communications between the parties extended beyond mere casual fraternization and was evidence of minimal social interpersonal bonding.  The Appellate Division found relevant the exchange of 1300 text messages between the parties and frequent personal interactions between the parties.  It also made reference to the plaintiff’s testimony that the messages between her and the defendant were flirtatious and that their relationship started out as a friendship but then progressed to an intimate level.  Thus, there was substantial credible evidence in the record to conclude that the parties’ personal communications and interactions qualified as a dating relationship under the PDVA.  This decision is consistent with the objective of affording a victim of domestic violence with as much protection as possible under the PDVA and the prevalence of virtual communications in the ever-changing world.

The Appellate Division also made clear that while there was no prior history of domestic violence between the parties, this is not a requirement in order to determine whether a FRO is necessary for the plaintiff’s protection.  In fact, a single act or series of events within a short period of time can constitute domestic violence for the purpose of issuing a FRO without the need of a prior history of abuse between parties.  In this case, the incessant and overtly hostile text messages by the defendant in which he threatened to contact the plaintiff’s employer in an effort to have her fired and to file a civil lawsuit against the plaintiff based on a frivolous claim that the plaintiff took an unauthorized photograph of him at the gym were found to be egregious acts of harassment that justified entry of a FRO, even in the absence of any history of prior domestic violence. 

Observation: The Appellate Division’s decision in C.C. v. J.A.H. represents another example of the growing expansion of victim’s rights under the New Jersey Prevention Against Domestic Violence Act (“PDVA”).  For purposes of establishing a “dating” relationship under the PDVA, the concept of dating is no longer only associated with the traditional customs and societal norms of in-person socializing and physical intimacy.  In fact, it is becoming increasingly common for dating or romantic partners in a relationship to communicate exclusively through social media outlets such as Facebook, Twitter, and Instagram and online dating applications such as Tinder and OKCupid.  This has especially become prevalent during the coronavirus pandemic where couples are unable to spend time together and have had to rely on communicating remotely through electronic or virtual platforms.  The opinion by the Appellate Division in C.C. clearly demonstrates the progressive view of New Jersey courts and how domestic violence laws in New Jersey are able to adapt and change with the current times.    

But see S.K. v. J.H. supra., where parties who go on a single date are held to not be in a dating relationship.  In the words of the court, a single date would give far too much weight to the word “dating” and too little weight to the word “relationship.”

See also L.M.F. v. J.A.F., 421 N.J. Super. 523 (App. Div. 2011) where 18 text messages were deemed not to constitute harassment as the court found no intent to harass. Meaning that there is texting…and…there is texting.

Gormley v. Gormley, 462 N.J. Super. 433 (App. Div. 2019)*

Issue: Was the conclusion by the trial court that the Wife could not rely on the Social Security Administration’s (“SSA”) determination of disability as prima facie evidence of her inability to work for purposes of imputing income for alimony and child support adequately supported by New Jersey law?

Holding: No.  When the SSA has determined that a party is disabled, a presumption of disability is established which then shifts the burden to the opposing party to overcome and refute that presumption.  To the extent that the trial court relied on the decision in Gilligan v. Gilligan, 428 N.J. Super. 69 (Ch. Div. 2012), in support of its finding that a SSA determination is not sufficient to establish prima facie evidence of disability, its reliance on Gilligan is misplaced and improper.  

Issue: Did the trial court commit error by failing to impute income to the Husband based on his earnings in the years immediately preceding trial?

Holding: Yes.  The trial court erred by not considering the Husband’s current earnings or his earning capacity in order to determine whether he had the financial means to pay support to the Wife and contribute to her marital lifestyle.  Rather, alimony was calculated based on income which the Husband earned five years before the trial date.  

Issue: Did the trial court also commit error by finding that there was “good cause” to deviate from the New Jersey Child Support Guidelines because the Wife had sole custody of the daughter and the Husband did not have any parenting time?

* Decided 2019, approved for publication 2020.

Holding: Yes.  The trial court’s determination not to apply the Child Support Guidelines rests on impermissible grounds since the elimination of a party’s parenting time is not good cause to deviate from the Guidelines since they take into account the amount of parenting time when calculating child support.

Discussion: The parties were married in 2000 and the Husband filed for divorce in 2015.  They had one child during the marriage who resided with the Wife and her parents at that time that this action commenced.  

During the parties’ marriage, the Wife suffered from multiple sclerosis.  The Wife was determined to be disabled by the SSA in 2002 and was unemployed at the time of trial.  Conversely, the Husband was employed in a commission-based job and earned $150,000 in the two years immediately prior to trial.  However, the Husband had earnings of only $46,644.56 for five months in 2018 and had begun reducing his work schedule in order to pursue studying psychology and researching parental alienation.  The Husband contended that he had reduced income based on a new commission formula instituted by his employer.

After a thirteen (13) day trial, the trial court entered an order which granted sole legal custody of the parties’ child to the Wife, awarded alimony to the Wife at the rate of $200.00 per week, and fixed child support at $90.00 per week but did not calculate child support based on the New Jersey Child Support Guidelines.  Notably, in reaching a determination as to alimony, the trial court imputed income to the Wife at the rate of $240 per week and observed in its opinion that the Wife did not exhibit limitations or deficiencies at trial which would inhibit her from being able to work.  The trial court also noted that there was no evidence that the Wife was told by a medical professional that she was unable to work.    

After the Wife’s Motion for Reconsideration was denied, she thereafter filed an appeal of the trial court’s award of alimony and child support.  Upon review of the trial record and relevant law, the Appellate Division vacated the ruling of the trial court and remanded it for further proceedings.  The Appellate Division found in pertinent part that the trial court improperly imputed income to the Wife and not to the Husband and incorrectly deviated from the New Jersey Child Support Guidelines.

With regard to the Wife’s claim that she was disabled and could not work, the Appellate Division explained that the trial court should have relied on its decision in Golian v. Golian, 344 N.J. Super. 337 (App. Div. 2001).  Golian makes clear that when a SSA has formally adjudicated a party to be disabled, this constitutes a prima facie evidence of disability and that they are unable to be gainfully employed.  The burden then shifts to the opposing party to sufficiently refute this presumption.  The Appellate Division noted that the trial court overlooked Golian and instead relied on Gilligan v. Gilligan, 428 N.J. Super. 69 (Ch. Div. 2012), which held that an award of social security disability alone was not sufficient to establish the Wife’s inability to work.  However, Gilligan is not controlling law nor is it the appropriate legal standard. 

The Appellate Division added that the Husband failed to proffer any evidence at trial to rebut the presumption of the Wife’s disability despite having the Wife examined by medical experts and the opportunity to review medical records.  Thus, it was error for the trial judge to have required the Wife to present other evidence to support her claim of disability and that she was unable to obtain remunerative employment.

As to the Husband’s earnings for purposes of calculating support, the Appellate Division also took issue with the trial court not imputing income to the Husband based on his most current earnings history.  It looked to the evidence in the trial record which showed that in 2017 the Husband reported a gross income of $150,000 and in 2018, the Husband was on pace to have a gross income of approximately $100,000.00 based on paystubs which he had submitted at trial.  Instead, the trial court only reviewed the Husband’s earnings in the six years prior to the parties’ separation in 2012 which was far less than what he was currently earning and not based on his most recent commission-based earnings.  The Appellate Division determined that not only was the examination of the Husband’s income by the trial court improper, but it should have considered averaging the Husband’s income in the years after the complaint was filed and before the divorce was finalized since commissions often tend to fluctuate over a period of time.  The trial court failed to undertake this analysis thereby committing reversible error.

Finally, the Appellate Division found that the trial court did not establish good cause to deviate from the New Jersey Child Support Guidelines.  The Court pronounced that the absence of parenting time for the Husband is not a legitimate reason to forgo calculating child support based on the Guidelines since the amount of time that the child spends with each parent is already taken into account in the Guidelines.  Moreover, while the trial judge may have believed that she was remedying an injustice since the Husband would not be having contact with the child, the injustice must be viewed from the perspective of the child since the Guidelines are always predicated on the best interests of the child.       

Observation:  Judge Lawrence R. Jones (Ret.) authored the opinion in Gilligan which was a reported decision.  The Appellate Division now rejects the holding in Gilligan and re-affirms its holding in Golian from 2001 that a SSA finding of disability raises a presumption of disability and shifts the burden to the party contesting the disability to refute the presumption. The Appellate Division makes clear that evidence in rebutting the presumption of disability could include “lay testimony, expert testimony, or medical records, consistent with the Rules of Evidence as the trial court deems appropriate.”  Therefore, in some cases lay testimony may be enough to rebut the presumption.

Trial courts often mistake marital lifestyle with ability to pay. Marital lifestyle requires us to look at how the parties actually lived during the marriage. Ability to pay is not based on historical marital earnings, but on current earnings or what someone’s present capacity to earn may be.  Looking at income earned historically to somehow limit the present ability to pay alimony is reversible error.

Deviation from the Child Support Guidelines requires good cause under R. 5:6A. Parenting time or the lack thereof is not good cause to deviate.  After Pascale v. Pascale, 140 N.J. 583 (1995), the Child Support Guidelines were revised to account for a parenting time credit.  If for whatever reason a party has no parenting time, then there is no credit and the Guidelines amount prevails.  Put simply, the Guidelines account for no parenting time and therefore such a situation gives no cause for deviation.

Ippolito v. Ippolito, ____N.J. Super. _____(App. Div. 2020)

IssueDoes N.J.S.A. 2A:13-5 allow for the attachment of an attorney’s lien against a client’s interest in a marital asset if the court later determines that the client’s interest in the marital asset should be awarded to the adverse party in satisfaction of other obligations? 

HoldingNo. N.J.S.A. 2A:13-5 allows for the attachment of an attorney’s lien only on “a  verdict,  report,  decision,  award,  judgment  or  final  order  in  his  client’s  favor” and if the attorney’s former client  received nothing at final hearing, then there is no “award or judgment” to which the attorney’s lien could attach. 

Discussion: After the plaintiff (hereinafter “the Wife”) filed the divorce action in 2012, the defendant (hereinafter “the Husband”) retained the Law Offices for representation in the divorce action.  During the divorce proceedings sometime in 2014, the trial court ordered that the proceeds of the sale of one of the parties’ homes (slightly more than $1.1 million in sale proceeds) be placed in escrow pending resolution of the litigation. Despite earnings of $2.5 million per year, the Husband ran up a $241,639.67 account receivable with his attorney. The Law Offices subsequently withdrew from the case, with the trial court granting an attorney’s lien in the amount of $241,639.67 on the property that the Husband would be entitled to at the end of the litigation pursuant to N.J.S.A. 2A:13-5. 

After the conclusion of the divorce trial in 2016, the trial court found that the Husband had, among other things, engaged in “extreme and purposeful misconduct, repeatedly violated court orders, failed to provide full discovery about significant marital assets, and interfered with witnesses and the sale of  marital  assets.” Notwithstanding the trial court’s recognition of the Husband’s “theoretical entitlement to half the marital assets in making his equitable-distribution findings,”  because of the Husband’s failure to comply with his support obligations and other directives, the judge awarded the Wife all of the remaining marital assets, including the monies held in escrow.  

After entry of the divorce judgment, the Law Offices moved in the trial court for payment of the firm’s outstanding fees from the fund.  The trial court rendered an oral decision on April 16, 2020, and held that the Wife had a  more equitable claim to the monies held in escrow than the Law Offices and, except for an allowance of $20,000, the trial court ordered that the monies held in escrow be transferred to the Wife. The Law Offices appealed the trial court’s decision to award only $20,000.00 in counsel fees from the fund and the Wife filed a cross-appeal arguing that there was no legitimate reason for the trial court to award even $20,000.00 to the Law Offices. 

In appealing, the Law Offices argued that the trial court misinterpreted N.J.S.A. 2A:13-5 and “failed to recognize the equities that supported granting it a higher priority” than the Wife.   Ultimately, the Appellate Division rejected the Law Offices’ arguments essentially for two reasons.  First, the Appellate Division reasoned that N.J.S.A. 2A:13-5 allows for the attachment of an attorney’s lien only on “a  verdict,  report,  decision,  award,  judgment  or  final  order  in  his  client’s  favor” and the Husband received nothing at final hearing so there was no “award or judgment” to which the lien could attach. The Appellate Division further reasoned that even if the lien could attach to the “momentary acknowledgement of [Husband’s] potential right to half a marital asset ultimately awarded to the Wife,” the trial judge had the right to decide which claim had priority [i.e. the Law Offices’ counsel fee lien or Wife’s equitable claim] and the Appellate Division agreed that the Wife’s equitable claim had priority, especially considering the Husband’s “recalcitrant and malicious conduct” which caused his share of equitable distribution to be reduced to zero. 

With regard to the Wife’s cross-appeal, the Appellate Division reversed the trial court’s order granting a $20,000 allowance to the Law Offices from the escrow fund, ruling that paying the attorney from the escrow fund would effectively shift the Husband’s obligation to pay fees to the Wife. The Appellate Division explained that such a ruling would be wholly inconsistent with the trial court’s determination that the Wife should be entitled to the entire marital estate due to the Husband’s egregious litigation conduct and refusal to pay his support obligations. The Appellate Division added that the trial court’s sympathy for the Law Offices should play no role in his ultimate determination as to lien priority. 

Observation: This case is extremely important. It stands for the proposition that attorneys should constantly be mindful of who they choose to represent. If you are an attorney representing a client who consistently acts in bad faith during the divorce litigation, you should be concerned with how this bad faith may affect the ultimate outcome of the divorce matter and how his affects your ability to get paid, whether by way of lien or otherwise. 

In this case, the attorney’s position was essentially that when the court awards equitable distribution, first the attorney’s lien must be satisfied before utilizing the Husband’s equitable distribution interest to satisfy the claims of the Wife.  The court did not see it that way and instead weighed the equities of whether the Husband’s interest should be paid to his attorney or the Wife. Insofar as paying the attorney would work to satisfy an obligation of the Husband and was tantamount to awarding assets to the Husband; and insofar as the Husband in this case was a bad actor; the court concluded that the equities fell with the Wife.

This is another case where attorneys are cautioned against running up six figure account receivables on the assumption that they will get paid in the end. Attorneys should demand that clients pay their bills current.  When clients do not have the ability to pay, attorneys should petition the court under R. 5:3-5(c) “to sell, mortgage, or otherwise encumber or pledge assets…to permit both parties to fund the litigation.”  Failing that, an attorney should move to withdraw from representation under R. 5:3-5(e)…preferably before a six figure account receivable is generated.

Amzler v. Amzler, 463 N.J. Super. 187 (App. Div. 2020)

Issue: Did the trial court incorrectly apply N.J.S.A. 2A:34-23(j)(2) rather than N.J.S.A. 2A:34-23(j)(3) in terminating the plaintiff’s alimony obligation based on the plaintiff having retired before reaching full retirement age?

Holding: Yes.  The trial court’s finding that N.J.S.A. 2A:34-23(j)(2) controlled for purposes of the plaintiff’s application was made in error as N.J.S.A. 2A:34-23(j)(2) applies only to final alimony orders or agreements established after September 10, 2014, which is the effective date of the 2014 amendments to the alimony statute.  Since the parties’ Matrimonial Settlement Agreement was entered into prior to the effective date of the 2014 amendments, the plaintiff’s application to terminate alimony should have been evaluated by the trial court under N.J.S.A. 2A:34-23(j)(3).

Discussion: The plaintiff (“Husband”) and defendant (“Wife”) executed a Matrimonial Settlement Agreement (“MSA”) in 2009 which required the Husband to pay permanent alimony to the Wife at the rate of $21,600.28 per year.  The parties’ MSA included an anti-Lepis provision which precluded the modification of the Husband’s alimony obligation due to a substantial change in circumstances based on the voluntary reduction in income of either party.  

After the parties’ divorce, the Husband continued his employment as a chief underground technician at PSE&G and declined to retire early in 2013 in order to recover the money which he lost in the divorce.  However, the Husband ultimately decided to retire July 2017, at the age of fifty-nine (59), which is the point in which he received full retirement benefits through his PSE&G pension.  

Upon the Husband’s retirement from PSE&G, the Wife responded by filing a Motion which in pertinent part sought to enforce the Husband’s alimony obligation.  The Husband countered by filing a Cross-Motion seeking to modify or terminate his alimony obligation based on his retirement from the workforce which was necessary due to medical reasons.  Based on the competing claims and allegations in the parties’ Certifications, the trial court scheduled a plenary hearing to adjudicate the matter.

During the plenary hearing on April 2, 2018, the trial court heard testimony from a certified vocational expert who opined that the Husband’s employment with PSE&G amounted to a labor-intensive position and that his extensive medical issues, which included significant knee pain, would prevent him from continuing to perform his work responsibilities.  When the trial judge questioned whether there were any reasonable alternatives in which the Husband may be able to continue employment, the expert testified that the Husband could find employment as a security guard or automobile parts delivery person but that these occupations would offer lower pay and minimal benefits.  The expert also proffered that the Husband was not qualified for an office role within PSE&G and that there were few, if any, available opportunities for training within the company.

With regard to the issue of retirement, the plaintiff testified that the parties contemplated during the marriage that he would retire at the age of fifty-five (55).  The plaintiff further testified that the average age of retirement for employees at his company was 59.5 years of age and due to the demanding physical labor which is typical for his position, many employees did not continue working into their late sixties.  

Contrary to the Husband’s testimony, the Wife testified that she did not anticipate the Husband retiring soon and believed that he would continue working for another thirteen (13) years.  The Wife also made clear on direct examination that she would not be able to meet her needs solely on her earnings and the Husband’s 401 and pension for which she received her marital portion from the Husband in equitable distribution.        

After the conclusion of the plenary hearing, the trial judge issued an oral decision on September 12, 2018 which denied the Wife’s Motion and granted the Husband’s Cross Motion to terminate his alimony obligation.  The trial judge applied the factors under N.J.S.A. 2A:34-23(j)(2) in ultimately terminating the Husband’s alimony obligation.  Although the Wife filed a Motion for Reconsideration in contending that error was committed by the trial court insofar as N.J.S.A. 2A:34(j)(3) should have governed the analysis, the Wife’s Motion for Reconsideration was denied.  

The Wife thereafter sought to appeal the ruling by the trial court claiming that it proceeded under improper statutory grounds.  Upon review of the matter, the Appellate Division agreed with the Wife in finding that subsection (j)(2) was not applicable to the case at bar.  Specifically, the Appellate Division found that subsection (j)(2) only applies to retirement applications in which final orders and agreements were entered into after the amendments to the alimony statute were made effective on September 10, 2014.     

The Appellate Division reasoned that this statutory construction is consistent with its decision in Landers v. Landers, 444 N.J. Super. 315 (App. Div. 2016).  In Landers, the Appellate Division considered the applicability of subsection (j)(1) and found that based on the express language as set forth in subsection (j)(3) that the New Jersey Legislature intended for subsection (j)(1) to govern alimony orders and agreements subsequent to the 2014 amendments.  

Although the language of (j)(2) suggests that the rule applies regardless of whether the alimony order or agreement was before or after the 2014 amendments, the Appellate Division relied on Landers and noted that when read in context with the other subparts of N.J.S.A. 2A:34-23(j), the Legislature clearly intended for (j)(2) to apply only to orders and agreements after the 2014 amendment.  The Court explained that to reach a different result would be to undermine binding agreements that were based on the law in effect at the time of their execution.

Since the MSA was signed by the parties in 2009 which was prior to when the 2014 amendments to the alimony statute were enacted, the Husband’s retirement before full retirement age must be examined under the lens of N.J.S.A. 2A:34-23(j)(3).  Thus, Appellate Division remanded the matter in order for the trial court to conduct a review of the Husband’s application to terminate alimony under N.J.S.A. 2A:34-23(j)(3).  

Observation: When proceeding on a post-judgment application to modify or terminate alimony based on retirement, family law practitioners should be mindful of the distinction between subpart (j)(2) versus subpart (j)(3) under N.J.S.A. 2A:34-23.  While subpart (j)(2) and subpart (j)(3) include many identical factors for courts to consider such as the age and health of the parties, the obligor’s generally accepted age of retirement in their field of employment, the obligor’s motives for retiring, and ability of the obligor to maintain support payments following retirement, subpart (j)(3) requires the courts to also consider the ability of the obligee to have saved adequately for retirement.  It is the inclusion of this standard in subpart (j)(3) which is the basis for why the Appellate Division found that the New Jersey Legislature intended to draw a distinction between applicants who proceed under this section of the statute compared to subpart (j)(2).  Thus, applicants who seek to retire early must proceed under subpart (j)(3) if their agreement or order was established before September 10, 2014 while subpart (j)(2) is reserved for applicants who have an agreement or order that was entered on or after September 10, 2014.  Understanding the distinction between these two provisions is imperative as it may ultimately mean the difference between winning your case at trial versus having your application dismissed without prejudice for procedural reasons. 

There was also an anti-Lepis provision in this case that stated that a “voluntary reduction in income of either party” would not constitute a substantial change in circumstances. The trial court did not consider whether the Husband’s early retirement was a “voluntary reduction” subject to the anti-Lepis provision of the MSA. On remand, the Appellate Division directed the trial court to address this issue. Practitioners should be reminded that drafting a settlement agreement is one of the most important functions in representing a client.  Writing clearly (to be understood years later by persons not involved in the settlement) and comprehensively (addressing all issues known and knowable thoroughly) is another indicia of great lawyering.   

C.N. v. S.R. 463 N.J. Super. 203 (Ch. Div. 2020)

Issue: In the absence of a writing which is required in order for a cohabitating party in a relationship to sustain a palimony claim, is partition a viable equitable remedy where the cohabitating party claims to have an ownership interest in real estate? 

Holding: Yes.  A partition action remains an available remedy for unmarried cohabitants who do not reduce to writing their palimony agreements as required by the amendment to the Statute of Frauds on January 18, 2010.  An unmarried cohabitant who is asserting a partition claim against real property must be able to show that they are involved in a joint venture or enterprise entitling them to a share of the asset.  In this case, the plaintiff contributed substantial resources and efforts to the acquisition and maintenance of the property which was sufficient to establish that he was involved in a joint undertaking with the defendant and that his partition claim was proper.  

Discussion: C.N. (hereinafter “plaintiff”) and S.R. (hereinafter “defendant”) were involved in a romantic relationship in 2010 and began cohabitating shortly thereafter.  The parties had a child together in 2016.  Although the parties had a destination wedding ceremony in 2018, they never legally married.  

In March 2012, the parties purchase a home in which the deed and mortgage were placed in the defendant’s name only.  Despite the property being in the defendant’s name solely, the plaintiff was heavily involved in the purchase of the home including, but not limited to, selecting and communicating with the realtor, providing $10,000.00 of the $15,000.00 down payment, selecting and paying the inspector, choosing the closing attorney, and negotiating a $10,000 seller’s concession. 

During the parties’ relationship, the defendant made eighty-seven to ninety of the ninety-six monthly mortgage payments.  While the defendant made most of the mortgage payments, the plaintiff paid the vast majority of the home’s maintenance costs such as gas, electric, water, sewer, security, landscaping services, garbage, and pest control.  The plaintiff also purchased household furnishings and was involved with the home contractors.  Furthermore, the plaintiff retained a lawyer to appeal the town’s property tax assessment for the home.

Upon the deterioration of the parties’ relationship in 2019, the defendant filed a complaint in July 2019 seeking custody and child support.  The plaintiff responded by filing an answer and counterclaim seeking parenting time and financial relief.  The trial court permitted the plaintiff to amend his pleadings in September 2019 at which time he sought partition of the parties’ residence as an additional cause of action.  

After attempts to resolve the matter at mediation failed, the trial court bifurcated the custody and financial issues and scheduled trial on the partition issue.  The trial on the partition action took place over two days in which only the parties testified.  Following the conclusion of the trial, the trial judge entered an order granting the plaintiff’s partition claim.

In its opinion, the trial court made clear that while the plaintiff could not prevail on a palimony claim since no promise for support between the cohabitating parties was reduced to writing as required by N.J.S.A. 25:1-5(h) for the Statute of Frauds, this law does not prevent the plaintiff from successfully asserting a partition claim.  While the trial court noted that the language in the statute which requires that a “promise for support or other consideration” must be in writing is not unequivocally clear, it found that the lack of any direct reference to partition actions or agreements in subsection (h) in the Statute of Frauds was extremely telling and spoke volumes that the New Jersey Legislature never intended subsection (h) to the Statute of Fraud to address partition of real property in the absence of a writing among unmarried, cohabitating persons who were engaged in a joint venture.

Based on the testimony and other evidence presented at trial, the trial court determined that the parties were in a joint venture such that the plaintiff’s partition claim with regard to the real property in dispute was a viable equitable remedy.  The trial record supported the plaintiff’s position that he was intimately involved in the negotiation, acquisition, maintenance, and upkeep of the real property.  Although the plaintiff did not make many payments towards the mortgage for the home while the parties were cohabiting, the plaintiff paid the large majority of the home’s utilities, maintenance, and security costs, among other expenses.  These actions are consistent of a joint venture which is a limited-purpose partnership in which the following factors are generally present: (1) contribution of money, property, effort, knowledge, skill, or other asset to a common undertaking; (2) joint property interest; (3) right of mutual control or management; (4) expectation of profit, or presence of an adventure; (5) right to participate in profits; and (6) limitation of the objective to a single undertaking.   

The trial court observed that the plaintiff’s financial and physical responsibilities in connection with the household clearly demonstrated mutual control and ownership for which the plaintiff testified at trial that he genuinely believed at closing the property would be his forever home.  Accordingly, the trial court determined that equity and fairness demanded that relief be granted in the plaintiff’s favor. 

Observation:  On January 18, 2010, the New Jersey Legislature addressed the difficulties with regard to oral palimony agreements by amending the Statute of Frauds, N.J.S.A. 25:1-5(h), to require that palimony agreements be reduced to writing in order to be binding.  However, the decision by the trial court in C.N. v. S.R. is an important reminder that the Statute of Frauds is not an absolute bar in cases where cohabiting parties have not reduced a promise for support or other consideration to a signed writing.  In addition to partition, there are a number of other legal and equitable theories of relief which may be asserted by a litigant in order to overcome the Statue of Frauds such as partial performance, unjust enrichment, quantum meruit, quasi-contract, equitable estoppel, and fraud.  Although many of these equitable claims are not common in the family law arena, they provide a potential avenue of relief for parties who, by virtue of their conduct, have formed a relationship which is contractual in nature, even though a formal writing evidencing this contract may never have been created.  

Practitioners should be aware of an unreported opinion, Moynihan v. Lynch, ___ N.J. Super. ___ (App. Div. 2020) where the Appellate Division recently rejected the equitable remedy of partial performance to get around the Statute of Frauds requirement of a writing for palimony agreements.  Moynihan also rejected a challenge to the new statute on the grounds that it violates the contract clause of the New Jersey and United States Constitutions because it requires independent legal counsel for palimony contracts to be enforced.  The court held that requiring a lawyer to review a written palimony agreement in order for that agreement to be enforceable is not a substantial impairment to the right of contract.

Ferrer v. Colon, 463 N.J. Super. 12 (Ch. Div. 2019) *

Issue: For purposes of calculating child support, may the Court find a party to be underemployed and impute income based on available overtime hours offered by an employer rather than the overtime hours the party actually worked in the past?

Holding: No. Overtime pay is “sporadic income,” which is fluctuating income that may be offered, but is not guaranteed to an employee.   When sporadic income is included under the New Jersey Child Support Guidelines (hereinafter “guidelines”), it is averaged over a period of time not to exceed three years. The trial court explained that averaging overtime pay is fair because it considers that a party may work multiple overtime hours in one year and not at all in a different year. Although, the trial court proffered that it would consider including all available overtime pay in the guidelines when a party has consistently worked the maximum overtime hours provided by an employer, in this case, there was no evidence that the plaintiff worked all available overtime hours offered by her employer. 

Discussion: The parties were never married, but their romantic relationship resulted in the birth of one child in 2006.  After the parties’ relationship ended, the plaintiff (hereinafter “the mother”) filed an application for child support from the defendant (hereinafter “the father”), which child support obligation was calculated pursuant to the guidelines and codified in an Order dated February 24, 2011.  Sometime thereafter in 2019, the mother filed an application to increase child support based on a substantial change in circumstances, including both parties’ increased incomes and the elimination of the father’s other dependent deduction.  

* Decided 2019, approved for publication 2020.

With respect to their incomes, both parties worked for the city of Newark as full time police officers. Each party received a salary and earned additional income through overtime hours and second jobs. The parties stipulated to the father’s weekly income including overtime pay. The only disputed issue was the mother’s income. 

The mother argued that her income should be calculated using her police officer’s salary plus the average of what she earned in the past from overtime pay and second jobs.  The father contended that the mother had available overtime hours beyond the hours she actually worked. Accordingly, the father argued that the mother was underemployed and requested that the trial court impute income to the mother based on the available overtime hours offered by her employer.  

The trial court discussed that the guidelines consider overtime income as “sporadic income” and include it in a party’s gross income by “averaging the amount of [overtime] income over the previous 36 months or from the first occurrence from its receipt, whichever time is less.” Although the trial court noted that it has some discretion to disregard or modify the guidelines, doing so required a showing of good cause. Pursuant to Appendix IX-A of the guidelines, a showing of good cause is either “the presence of other relevant factors which may make the guidelines inapplicable” or proof that “injustice would result from the application of the guidelines.” 

The trial court discussed that averaging overtime pay is fair because it prevents a party from improperly reducing support by working less, but it also considers that a party may work multiple overtime hours in one year and not at all in a different year. In addition, the trial court reviewed the pertinent case law and determined that imputation of income beyond full-time employment must be done so in accordance with the parties’ past practices. See e.g. Elrom v. Elrom, 439 N.J. Super. 424 (App. Div. 2014); Storey v. Storey, 373 N.J. Super. 464 (App. Div. 2004).  Here, the mother did not have a history of working all available overtime hours offered by her employer. Accordingly, the trial court found no basis to impute to plaintiff an additional income beyond her annual salary and an average of what she earned in the past from overtime hours and second jobs. 

Observation: Calculating child support based on available overtime pay instead of averaging the overtime pay actually earned might work to punish a party for having employment where overtime work is freely available. Furthermore, it would appear unfair to require one party to work harder than the other party who does not have the opportunity to work overtime, especially if there was no history of this practice during the marriage. Pursuant to Ferrer v. Colon, when calculating child support, a party’s income shall include the average of past earnings from overtime. 

While this is not an alimony case, keep in mind that in alimony actions, the issue of overtime pay can conflict with the right of both parties to share leisure time or time away from work. For a discussion of leisure time and the marital lifestyle, See F. Louis, the Far-Reaching Impact of Crews, New Jersey Family Lawyer.

S.C. v. J.D., 462 N.J. Super. 452 (Ch. Div. 2019)*

Issue: Does a defendant who is a half-sibling of the victim and whose parents are separated but as a child spent meaningful, regular periods of time with the half-sibling victim at the home of the parent of alternate residence qualify as a “household member” in order to establish jurisdiction under the Prevention Against Domestic Violence Act?

Holding: Yes. A defendant may simultaneously have two households creating jurisdiction under the Prevention Against Domestic Violence Act where his parents are separated and where the victimized half-sibling resides with the shared parent.  The fundamental key to this inquiry is that the defendant must be substantially integrated into the household of the parent of alternate residence such that they are part of a modern, blended family unit.

Discussion: The plaintiff (“Samantha”) obtained a temporary restraining order against the defendant (“Jake”) alleging assault and terroristic threats as predicate acts of domestic violence. By way of brief background, the parties are half-siblings in which they share the same father.  After Jake’s birth, his parents divorced and agreed that Jake’s father, as the non-custodial parent, would have free and liberal visitation with Jake. 

In early 1990, Jake’s mother obtained a final restraining order against Jake’s father after which time the parties came to an agreement whereby Samantha’s mother, who was in a relationship with Jake’s father, would supervise parenting time between Jake and his father.  Other than for a six-month period which led to the final restraining order, Jake spent substantial, regular, and continuous time at his father’s home during his youth and Jake’s father consistently exercised bi-monthly parenting time with Jake which included overnights during the school year with increased parenting time during the summer.

* Decided 2019, approved for publication 2020.

Following Samantha’s birth, Samantha’s mother quit her job to say at home with the children.  During this time, Jake would regularly stay with his father, Samantha’s mother, and his half-siblings every other weekend as well as during holidays.  Jake and Samantha would play sports and enjoy other bonding activities together in which he was part of the family unit.  Although Jake did not have a bedroom, his time at the family home was frequent enough that he left many of his clothes, toiletries, and other belongings there. 

After Jake left the family home to attend college, the in-person contact between Jake and Samantha decreased.  This was largely due to academic pursuits, work responsibilities, and geographical proximity.  However, the parties continued to see each other during holidays, special occasions, and family gatherings.  They most recently had seen each other in November 2018 at a family birthday party.  

Following the entry of the temporary restraining order which Samantha obtained against Jake, the trial court was presented with the legal issue as to whether Jake qualified as a household member pursuant to the Prevention Against Domestic Violence Act (“PDVA”), N.J.S.A. 2C:25-17 to -35, such that Samantha could be afforded protection under the statute.  The trial court determined that jurisdiction under the PDVA was proper and the entry of a temporary restraining order was valid since the language of the statute must be flexible to accommodate the ever-changing dynamics in modern families. 

In its reasoning, the trial court observed that the case law has evolved in recent years such that the PDVA applies even in instances where the parties have not resided together for a period of many years.  The trial court noted that in N.G. v. J.P., 426 N.J. Super. 398 (App. Div. 2012), it was determined that there was jurisdiction under the PDVA since the defendant’s behavior arose out of the parties’ earlier household relationship notwithstanding the fact that the parties stopped residing together since 1960 and has no contact for almost 20 years.   

The trial court also found R.G. v. R.G., 449 N.J. Super. 208 (App. Div. 2017), to be instructive where the Appellate Division held that the PDVA applied even though the parties had not resided together for more than 30 years.  The trial court made clear that the reported case law since the omnibus amendments to the PDVA were enacted in 2015 have placed an emphasis on broadening the rights of domestic violence victims so as to create a floor not a ceiling when it comes to jurisdictional determinations.  

The trial court further explained that residing under a single roof is not dipositive when deciding whether a person is to be considered a household member under the PDVA. Notably, when dealing with a situation of separated parents, a child may be a household member of two residences simultaneously, provided that the parent of alternate residence exerts meaningful, regular parenting time with the child and the child is substantially integrated in the family unit.  Here, it was clear that Jake was an integral part of the family household and had a close relationship with Samantha in which he spent significant periods of time with her from the time of her birth until he went to college. 

The trial court found that the facts of the case demonstrated a substantially integrated, modern, blended family which the PDVA was specifically designed to address.  This interpretation is consistent with public policy in New Jersey to assure that minor children have frequent and continuing contact with both the custodial and non-custodial parent after separation or dissolution of the marriage.  The trial court declared that carving out an exception to the household member classification of the PDVA for those children who have separated or divorced parents would create a perverse result which is inconsistent with the intent of the New Jersey Legislature.  Notwithstanding the limited and infrequent contact that the parties may have had as adults, they continued to have a meaningful and close relationship which made Samantha and Jake household members and established jurisdiction under the PDVA.

Observation: S.C. v. J.D. represents another example of the growing trend in which New Jersey courts have expanded the reach of the PDVA in order to protect victims of domestic violence.  In this case, parties who are involved in an incident of domestic violence may qualify as “household members” in order to establish jurisdiction under the PDVA even where they did not live together on a regular basis and were not part of a traditional intact family structure.  This decision by the Monmouth County Family Part is relevant because it demonstrates that the PDVA is applicable even in situations where there is a timeshare arrangement due to divorce or separation.  Here, the fact that the defendant and the victim were not household members in the traditional mold was not dispositive since they both spent a significant amount of time together as part of a modern, blended family unit.  This case offers insight as to how domestic violence law in New Jersey has evolved as there are many parties who did not grow up in an intact family and courts have been increasingly flexible so as to allow the definition of household member under the PDVA to accommodate the changes in modern family structures.   

The polestar in these close “household member” cases appears to be the extent to which the alleged acts of domestic violence arose from a prior domestic relationship. For example, step children who only lived together between ages 2 and 4 and had only a remote, fleeting or transient relationship are not likely to be considered household members if later in life they re-connect and an act of violence occurs. In S.C. v. J.C., the parties developed a “meaningful relationship” through the time the defendant left for college. That relationship was serious enough that thereafter the parties maintained on-going contact engaging socially, spending time at each other’s residence, and sharing family celebrations.