By: John P. Paone, Jr.*
In 2021, year two of the pandemic, COVID-19 continued to cast a large shadow over the practice of law. With courthouses slowly to reopen and trials either coming to a halt or proceeding slowly due to backlog, the development of the case law continues to be severely impacted by the pandemic. Another result of the pandemic is that in numbers larger than anytime before, practitioners resort to mediation and arbitration to move cases that they have been unable to move through the court system. While no one can dispute that resolving matters by way of Alternate Dispute Resolution (ADR) is a good thing, this process does not advance the case law. And so, not surprisingly a good portion of the reported case law arises out of domestic violence matters that must be adjudicated in the court system.
Despite all of this, 2021 had its share of reported cases impacting the practice of family law. Without a doubt the two most important cases were Temple and Steele. In Temple, the Appellate Division defines what is necessary to establish a prima facie case of cohabitation under N.J.S.A. 2A: 34-23(a). In Steele, the Appellate Division made clear that mid-marriage agreements will be viewed with “heightened scrutiny” and that premarital agreements must be executed prior to the marriage ceremony.
The following are my selections for the ten most important family law cases reported in 2021.
Temple v. Temple, 468 N.J. Super. 364 (App. Div. 2021)
Issue #1: Did the trial court properly conclude that the movant Husband must provide evidence of all six elements specified in N.J.S.A. 2A:34-23(n) to establish a prima facie case of cohabitation?
Holding: No. At final hearing, the court is to consider all six elements set forth in the statute in determining whether cohabitation has been established. At the motion stage, however, a prima facie case such that further discovery and an evidentiary hearing may be ordered, can be established without evidence of all six elements of cohabitation. It is enough that the movant present evidence from which a court could conclude that the supported spouse and another are in “a mutually supportive, intimate personal relationship” in which they have “undertaken duties and privileges that are commonly associated with marriage or civil union.”
Issue #2: Did the trial court mistakenly weigh the parties’ competing sworn statements and accept as true Wife’s explanation of the facts and proofs produced in Husband’s moving papers?
Holding: Yes. Husband was entitled to a presumption of truth as to his allegations and the benefit of all reasonable inferences to be drawn from the evidence he had compiled. When presented with competing certifications that create a genuine dispute of material fact, a court is not permitted to resolve the dispute on the papers; the court must allow for discovery and if, after discovery, material facts remain in dispute, conduct an evidentiary hearing.
Discussion: Husband and Wife were married in 1986 and divorced in 2004, after an almost eighteen-year marriage. Pursuant to the parties’ Matrimonial Settlement Agreement (“MSA”), the parties agreed that Wife would receive permanent alimony of $5,200.00 per month, but that remarriage and cohabitation were events which would terminate or modify the aforesaid alimony obligation. More than sixteen years after their divorce, in July 2020, the Husband moved to terminate alimony, alleging that Wife either remarried or was cohabitating with a man with whom she had been dating for at least 14 years.
Pursuant to his motion, Husband proffered that Wife and her new husband or boyfriend of 14 years had traveled together, attended social activities together, and posted photos over a span of seven years as a couple on social media (Facebook, Instagram, etc.), where they held themselves out to be married. In addition, Husband produced a publication issued by a Catholic church in Spring Lake which demonstrated that Wife took (or at least utilized) the last name of her alleged cohabitant. Moreover, Husband produced a report from his private investigator which evidenced that Wife was living full-time in her alleged cohabitant’s Spring Lake home between April and June 2020. The private investigation report also contained photos that depict the Wife engaging in household responsibilities, such as bringing groceries into the Spring Lake home, performing other household shopping trips, and retrieving and opening mail. Wife was seen in these photographs using a key or entering the Spring Lake residence through the garage keypad access code. Absent from Husband’s motion was any indicia that Wife and her alleged cohabitant had “intertwined finances.”
In her opposition, Wife admitted that she has a boyfriend, but denied that she was remarried or was cohabitating. Wife claimed that she moved to Spring Lake only temporarily when she received a March 24, 2020 notice from her apartment manager in New York City that a resident in her building had become infected with COVID-19. She further explained that rather than moving into her boyfriend’s residence, she fled and took shelter in his home in a “total panic,” grabbing only a few clothing items, her laptop and work papers.
Despite the evidence produced by Husband, the trial court denied his motion for two primary reasons. First, the trial court ruled that because there was no evidence of a joint bank account or otherwise intertwined finances, which is one of the six factors listed in the cohabitation section of the alimony statute, Husband’s motion to terminate alimony based on cohabitation must necessarily fail. Second, although there were several disputes of material fact as to whether Wife was remarried, the court decided, based on the papers, that Wife’s denial of remarriage was sufficient to reject Husband’s claim.
On appeal, Husband argued that the trial court improperly concluded that he needed to produce evidence of all six factors listed in the alimony statute in order to establish a prima facie case of cohabitation. Likewise, Husband argued that disputes of material fact regarding whether Wife remarried or whether she had permanently moved into her significant other’s home should have resulted in an evidentiary hearing rather than a decision on the papers.
The Appellate Division agreed. The trial court’s decision was reversed and remanded for discovery and an evidentiary hearing.
The Appellate Division explained that the trial court’s ruling that evidence of all six factors listed in the cohabitation section of the alimony statute was necessary to establish a prima facie case of cohabitation was erroneous as was the trial court’s reliance on Landau v. Landau, 461 N.J. Super. 107, 118-19 (App. Div. 2019). The Appellate Division clarified that Landau stands for the proposition that the movant must present a prima facie case of cohabitation before obtaining discovery. However, Landau does not define what constitutes a prima facie case of cohabitation and, therefore, courts should not look to Landau as a “guide” as to what a prima facie case of cohabitation looks like. In addition, the Appellate Division explained that the Legislature never intended for the definition of a prima facie case of cohabitation to be limited by the six factors listed in the aforesaid statute because of the catchall provision in the statute which allows a court’s consideration of “[a]ll other relevant evidence,” N.J.S.A. 2A:34-23(n)(7). The Appellate Division further explained that determining whether a prima facie case of cohabitation exists is far less mechanical than checking off the items listed in the alimony statute and that evidence of “a mutually supportive, intimate personal relationship” in which the parties have “undertaken duties and privileges that are commonly associated with marriage or civil union” is enough to warrant discovery and an evidentiary hearing regarding the issue of cohabitation. The Appellate Division emphasized that to rule otherwise would make the finding of cohabitation “as rare as a unicorn,” as oftentimes financial information is private information which is not readily available to the public and rarely volunteered by the supported spouse.
In the case at bar, the Appellate Division made clear that Husband produced more than enough evidence to establish a prima facie case of cohabitation. In addition to the evidence listed above, the Appellate Division explained that the few financial records volunteered by Wife and her alleged cohabitant memorialize transactions by Wife on several occasions in early 2020, suggesting that the two were together in Spring Lake on the weekends before the pandemic, and evidence of Wife and her cohabitant scrubbing their social media accounts and deleting many of the posts referred to above gives rise to an inference in Husband’s favor. The Appellate Division emphasized that the plethora of photos demonstrating their union, the investigation report demonstrating the frequency of togetherness at the significant other’s home and even at Wife’s apartment in New York City, and their reference to one another as “Husband” and “Wife” in social media posts was enough to establish “a mutually supportive, intimate personal relationship” in which they have “undertaken duties and privileges that are commonly associated with marriage or civil union” and to warrant discovery and an evidentiary hearing regarding the issue of cohabitation.
With regard to the trial court’s decision to accept Wife’s explanation of why Husband’s proofs did not establish remarriage or cohabitation, the Appellate Division explained that the Husband, not the Wife, should have been given the benefit of the doubt and all favorable inferences to be drawn from the evidence so far available without discovery. Much like a motion for summary judgment, the Appellate Division explained that if there is enough evidence to present a dispute of material fact as to remarriage or cohabitation, then these issues should be developed through discovery and an evidentiary hearing. The Appellate Division noted that there may be logical explanations as to why the proofs do not amount to remarriage or cohabitation, but that these explanations should be tested at an evidentiary hearing after sufficient discovery has ensued.
In 2014, the New Jersey Legislature enacted N.J.S.A. 2A:34-23(n), which broadened the legal definition of cohabitation. The statute, in relevant part, provides:
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.
Temple finally resolves the confusion that ensued following the Landau decision in 2019. Temple makes clear that Landau should be limited to defining when you are allowed to obtain discovery in a post-judgment cohabitation case (i.e., you first must establish a prima facie case). Landau does not define what constitutes a prima facie case of cohabitation. Temple attempts to do so.
It is important to note that in Temple, the parties divorced before the effective date of the 2014 cohabitation statute. The court left for another day whether the 2014 statute or the law as it existed at the time of divorce controls. Query how, without determining which law controls, the court was able to decide that a prima facie case was made?
Notwithstanding the statute, practitioners should be aware that parties may elect to define cohabitation differently in their Marital Settlement Agreement than how it is defined by law. How the parties define cohabitation is extremely important in terms of determining the proofs needed to establish a prima facie case as well as cohabitation and the overall resolution of the issue. See Konzelman v. Konzelman, 158 N.J. 185, 193-94 (1999).
The presumption of truth as to the payor’s allegations and benefit of all reasonable inferences to be drawn suggests that few cohabitation cases will be denied strictly on motion practice after Temple. But see the unreported opinion in J.R. v. F.R., App. Div. No. A-3213-19 (2021) where the Appellate Division distinguished the case from Temple and held that while the moving party is entitled to an assumption of the truth of the allegations and the benefit of all reasonable inferences, “conclusory allegations will be disregarded.” In denying the request for a hearing and discovery, the court further held, “We recognize that a prima facie showing of cohabitation may be difficult to establish…however, the difficulty of the moving party to establish a prima facie showing cannot justify invasion of the ex-spouse’s privacy.” In the end, J.R. v. F.R. leaves open the door for parties to avoid a plenary hearing and to have cohabitation applications defeated on motion practice alone.
Notwithstanding Temple, we continue to await the court to weigh in on what must be established at final hearing to prove cohabitation under the new statute. See Paone & Murphy, Cohabitation Under N.J. Law: A Special Relationship, 227 N.J.L.J. 27 (July 5, 2021) for a discussion of how to prove cohabitation under the new statute.
Steele v. McDonnell Steele, 467 N.J. Super. 414 (App. Div. 2021)
Issue: Did the trial court commit reversible error by enforcing the parties’ written agreement as a “premarital agreement” when it was not signed until 8 months after the marriage ceremony?
Holding: Yes. Although a draft agreement and financial disclosure statements were prepared before the marriage, the parties did not negotiate or execute the agreement until after the parties married. Thus, the agreement into which the parties entered was not a premarital agreement under N.J.S.A 37:2-32, which defines a premarital agreement as a contract between prospective spouses in contemplation of marriage. Rather, the agreement must be viewed as a mid-marriage agreement, which faces stricter scrutiny before it is enforced.
Discussion: The parties in this action were previously married and divorced before they began a relationship in 1989. Plaintiff (hereinafter “Husband”) had no children from his first marriage and Defendant (hereinafter “Wife”) had a son from her prior marriage. Wife received no financial settlement from the divorce from her first spouse other than regular child support payments.
After the parties’ relationship became serious, Wife relocated with her son from California to New Jersey where the couple began living together in the summer of 1990. Wife was a teacher and Husband purportedly operated several businesses at that time.
Almost two years prior to the parties’ marriage, Husband retained a law firm to draft a premarital agreement for his review. Husband did not discuss any of the terms of the premarital agreement with Wife before their engagement.
Husband’s attorney also arranged to prepare a financial disclosure statement along with the premarital agreement. The disclosure addressed Husband’s assets including but not limited to various interests in stock shares, revocable and irrevocable trusts, and other property. The disclosure also contained language which stated that Husband’s personal net worth could be as high as $12 million if not greater and that the value of his stock interests and trust benefits could appreciate very substantially in future years.
Wife accepted Husband’s marriage proposal in spring of 1991. Subsequent to the proposal, Husband informed Wife for the first time that he wanted her to sign a premarital agreement. Despite the fact that Husband had multiple drafts of the premarital agreement and financial disclosure statements prepared, there is no proof that Husband provided Wife with these documents prior to their wedding. Wife became pregnant in October 1991 and they were married in Paris on November 30, 1991. Shortly after the wedding ceremony, Husband again requested that Wife sign the agreement and arranged for an attorney to represent Wife so that the parties could commence negotiating an agreement.
During the negotiation process, Wife advised her attorney that she wanted certain language in the agreement changed, in particular alimony to be fixed at $5,000.00 per month rather than $3,000.00 per month, for each month the marriage endured. Wife also requested a payment of $50,000.00 rather than $35,000.00 in equitable distribution for each year that the marriage lasted. Husband agreed to the proposed change regarding alimony but rejected the proposed change regarding equitable distribution. Absent from the agreement was any provision for child support or life insurance despite the fact that Wife was pregnant when the parties negotiated the agreement and Wife later gave birth to a child in July 1992.
A revised draft of the agreement was provided to Wife’s attorney in April 1992. This draft included a clause which stated: “The parties have fully intended at all times to enter into this Agreement but were married prior to its execution, and nonetheless desire that the Agreement be executed by them and deemed enforceable in a court of law, consistent with their intentions and wishes.” Although the parties intended to meet at the office of Wife’s attorney to sign the agreement, the meeting did not take place as Wife expressed to her attorney that she had reservations and thought she should be asking for something more. Later the same month, Husband purchased the parties’ first home for $406,000.00 and placed the title to the residence in his name alone.
In early June 1992, an updated financial disclosure accompanied the agreement which reflected a marked decrease from the first statement as to the value of a company in which Husband held a considerable stock interest. The statement utilized different accounting methods to calculate the value of Husband’s companies than the prior disclosure statement and did not reflect certain distributions which Husband received from his companies in 1991 totaling $300,000.00.
Wife gave birth to the parties’ first child in July 1992. Ultimately, the parties signed the marriage agreement in August 1992. Wife testified that she did not read the entire agreement and instead skipped to the provisions addressing alimony and equitable distribution. She later admitted that it did not matter to her how much her Husband earned but she signed the agreement in order to make her Husband happy. Wife earned no income at the time that she signed the agreement.
Husband filed a Complaint for Divorce in December 2015 to end this 24-year marriage, with Wife now 62 years of age. After spending considerable time trying to reconcile their differences through mediation, Husband filed an application in February 2018 seeking a declaratory judgment to enforce the parties’ agreement or alternatively, to limit the scope of discovery to the issues regarding the formation of the agreement rather than the adequacy of the financial disclosure leading to its execution. Wife through her counsel responded by filing a cross-motion which sought in primary part to declare the agreement void ab initio and to permit discovery regarding the sufficiency of the financial disclosure at the time that the parties negotiated their written agreement.
The trial court entered an Order on April 19, 2018 denying Husband’s motion for a declaratory judgment and ordered a plenary hearing to address enforceability of the agreement. The trial court also granted broad discovery including financial information during the preparation of the agreement and thereafter.
Following the trial court’s denial of reconsideration motions which were filed by each party, the Appellate Division granted Husband’s motion and Wife’s cross-motion for leave to appeal. The Appellate Division thereafter ordered the trial court to conduct more limited pre-plenary hearing discovery regarding the formation and signing of the agreement at or about the time of the August 4, 1992 signing.
In the Spring of 2019, Wife filed a motion for partial summary judgment seeking the marital agreement be deemed a post-nuptial agreement and declared as void ab initio and to determine that Husband failed to fully disclose his assets at the time of negotiating and entering the agreement. Husband filed a cross-motion to enforce the terms of the marital agreement. On June 28, 2019, the judge denied Wife’s motion and granted Husband’s cross-motion. The trial judge held that the agreement by the parties was an enforceable premarital agreement finding that the parties contemplated entering into a signed document prior to their marriage and a relatively short duration of time had elapsed since the parties’ nuptials. The trial court distinguished this agreement from a mid-marriage agreement referenced in Pacelli v. Pacelli, 319 N.J. Super. 185 (App. Div. 1999) which it called a “take it or leave it” arrangement. Contrary to Pacelli, in this case, Wife was able to negotiate an upward adjustment to her entitlement. The trial judge relied on the 2013 iteration of the Premarital Agreement Act to enforce the agreement and held that the agreement was not unconscionable. The trial judge also concluded that Husband did not knowingly undervalue his assets to avoid disclosing material information to Wife and that, in any event, Wife admitted that she did not rely on the disclosures in order to sign the agreement. The trial court entered a Final Judgment of Divorce which incorporated the agreement signed after the parties’ marriage.
On appeal by Wife, the Appellate Division remanded the case for future proceedings and discovery as it determined that the trial court failed to recognize that the written agreement by the parties was actually a mid-marriage agreement, not a premarital agreement. Where premarital agreements should ordinarily be held enforceable and valid, mid-marriage agreements are generally unenforceable as they are “inherently coercive” and are deserving of “heightened scrutiny.” Such agreements are carefully reviewed because they are “pregnant with the opportunity for one party to use the threat of dissolution to bargain themselves into positions of advantage.”
The Appellate Division made clear that the agreement which the parties executed cannot be entitled to any presumption of enforceability since it is a mid-marriage agreement. It added that even if the agreement was deemed to be a premarital agreement, the 1988 version of the Uniform Premarital Agreement Act (not the 2013 current version of the statute) would apply in this case as the agreement was entered into before 2013. The 1998 version of the Act provides that a premarital agreement is unconscionable if at the time of enforcement, it would: a) render a spouse without a means of reasonable support; b) make a spouse a public charge; or c) provide a standard of living far below that which was enjoyed before the marriage.
The Appellate Division observed that there was also ample support in the record for the mid-marriage agreement to be declared as coercive if not unconscionable. During Wife’s deposition, she testified about Husband imploring her to sign the agreement three weeks after their first child was born, which she felt was confrontational and opportunistic. She also testified that if she refused to sign the agreement there was a possibility that she could become incredibly vulnerable without support as a mother of two children.
The Appellate Division expressed concern that the mid-marriage agreement may have been unfair or unconscionable when executed or at the time of divorce. As a result, on remand, the trial court was instructed to review three particular areas of concern: 1) adequacy of Husband’s financial disclosures before the parties signed the agreement; 2) the circumstances surrounding the agreement’s negotiation and execution; and 3) the adequacy of the settlement itself. These concerns related to discrepancies with some of the financial disclosures made by Husband, important provisions such as child support and life insurance which were omitted from the agreement altogether, and Wife’s feeling of pressure and vulnerability in signing the agreement.
The Appellate Division also vacated the denial of counsel fees. The mid-marriage agreement contained a clause which provided that the party seeking to vary the terms of the agreement pay as liquidated damages all costs and expenses incurred by the other party in defense of the agreement. Although the trial court did not award counsel fees to Husband, the Appellate Division instructed the trial court on remand to scrutinize this provision for fairness.
- As if it wasn’t clear before, premarital agreements must be fully executed before the marriage ceremony to be enforceable. Inserting nunc pro tunc language will not save a premarital agreement executed after the marriage.
- Mid-marriage agreements will not be treated with great warmth by the court (and certainly not with the same deference as premarital agreements and property settlement agreements). They are called here “inherently coercive” and will be subject to “heightened scrutiny.” Practitioners preparing such documents do so at great risk of the agreement not being enforced. Note the requirement that such agreements be fair at the time they are entered and at the time they are enforced. In a marriage in excess of 20 years, this standard will be difficult to meet as circumstances tend to change during a long-term marriage which can render what was once a fair agreement, unfair.
- We still do not have a case on whether the current iteration of the Premarital Agreement Act will withstand judicial review. The current statute no longer defines an unconscionable agreement based on the level of support provided, but on whether there was full and fair disclosure and independent counsel (or the expressed waiver of these rights). Query what a court like this, concerned about fairness, will do with such a premarital agreement which does not address financial issues fairly.
- Steele at least makes clear that the current iteration of the Premarital Agreement Act enacted in 2013 does not apply to agreements entered prior thereto. Practitioners should be aware that the pre-2013 version of the Premarital Agreement Act is vastly different than the current iteration of the statute.
- If would appear that a “loser pays” provision in an agreement will not be enforceable if the Family Court does not view such a provision as fair. Furthermore, as judges are given wide latitude on counsel fees, it would appear that these draconian provisions (compelling any person who challenges the enforcement of a Premarital Agreement to pay fees) will not receive knee-jerk enforcement in the Family Court.
C.R. v. M.T., ______ N.J. ______ (2021)
Issue #1: Under the Sexual Assault Survivor Protection Act of 2015 (SASPA), what standard should apply in determining whether an alleged victim was too intoxicated to give consent to sexual activity?
Holding: The Supreme Court held that the standard for determining when sexual activity is nonconsensual requires a showing that “permission to engage in sexual activity was not freely and affirmatively given by the alleged victim” as outlined in State in Interest of M.T.S., 129 N.J. 422 (1992).
Issue #2: Is it proper for a court to conclude that there is “a possibility of future risk to the safety or well being of the alleged victim” based on the assumption that the defendant “may now harbor a grudge against [the plaintiff]” for filing the SASPA application?
Holding: No. The Supreme Court held that a plaintiff “simply filing for a protective order is insufficient” to determine that defendant poses a future risk to the safety or well-being of plaintiff. To rule otherwise would ensure that the second prong of SASPA would be satisfied in every single case, which was not the intent of the Legislature.
Discussion: In June 2018, plaintiff and defendant engaged in sexual activity after a night of drinking. Plaintiff alleged she was too intoxicated to give consent to the sexual activity, but defendant claimed that the entire encounter was consensual. Plaintiff filed for a temporary protective order pursuant to SASPA, which requires consideration of at least two factors, commonly referred to as the two “prongs” of SASPA: “(1) the occurrence of one or more acts of nonconsensual sexual contact . . . against the alleged victim; and (2) the possibility of future risk to the safety or well-being of the alleged victim.” N.J.S.A. 2C:14-16(a).
After conducting a hearing, the trial court found both parties’ accounts of the incident to be “equally plausible.” Ultimately, based on a preponderance of the evidence, the trial court ruled that plaintiff’s “extreme voluntary intoxication” rendered her “temporarily incapable of understanding the nature of her conduct” and that she was, therefore, subjected to nonconsensual sexual contact within the meaning of SASPA’s first prong. In concluding that plaintiff was subjected to nonconsensual sexual contact, the trial court was particularly persuaded by the fact that plaintiff was “very intoxicated” and had “consumed at least 10 if not more alcoholic drinks during the course of the evening,” making it more likely than not that plaintiff was too intoxicated to give consent. The trial court also noted that the parties had sex in a garage as opposed to a bedroom and that plaintiff would not have “subjected herself to these [legal] proceedings if her actions were consensual.”
With regard to the second SASPA prong, the trial court noted that although there was a “lack of evidence” that defendant sought to contact plaintiff after the aforesaid encounter, a final protective order was necessary to protect against “a future risk to the safety and well-being” of plaintiff because defendant “may now harbor a grudge against [plaintiff] which would probably not have occurred but for these proceedings.”
After defendant appealed, the Appellate Division reversed and remanded the trial court’s decision regarding the first SASPA prong. Specifically, the Appellate Division held that the proper standard to adjudge whether the alleged victim was too intoxicated to give consent to sexual activity is the “prostration of faculties” standard, which is the standard utilized when criminal defendants assert intoxication as a defense to negate the requisite mens rea to commit a crime. The Appellate Division further explained that when determining whether the alleged victim’s faculties were prostrated such that she could not have consented to the aforesaid sexual activity, the trial court should have analyzed additional factors such as “the actor’s conduct as perceived by others,” what the actor “said” and how the actor “said it,” and “the actor’s ability to recall significant events” as outlined in State v. Cameron, 104 N.J. 42, 54 (1986). The Appellate Division elaborated that the “prostration of faculties” standard is appropriate in SASPA cases because “[t]he Legislature’s silence regarding the degree of intoxication required in this context strongly suggests an intention to adopt the familiar standard that has been utilized in criminal matters,” especially considering that the question in this case goes to the same inquiry — “ascertaining the intoxicated person’s ability to form a particular state of mind.”
Thereafter, the Supreme Court granted plaintiff’s Petition for Certification and also granted amicus curiae status to Legal Services of New Jersey (Legal Services), the Domestic Violence Clinic and Project at Rutgers School of Law — Camden (Rutgers), and the New Jersey Coalition Against Sexual Assault and Partners for Women and Justice (N.J. Coalition). According to plaintiff, the criminal “prostration of faculties” standard is wholly inapplicable to SASPA because, unlike the Prevention of Domestic Violence Act (PDVA), SASPA does not reference the criminal code in its definitions of predicate offenses. Plaintiff further asserted that the appropriate standard for the courts to analyze is whether an alleged victim “freely and affirmatively consented to the sexual activity” because the Legislature is presumed to be aware of the case M.T.S. and judicial construction of its statutes. More importantly, plaintiff argued that the “affirmative consent” standard is more consistent with SASPA’s goal of protecting sexual assault victims because such standard does not require that victims bear the burden of proof to show lack of consent. Plaintiff’s arguments were echoed by Legal Services and Rutgers, and the N.J. Coalition further added that “the prostration of faculties standard is intended for defendants seeking to escape liability for wrongdoing, not for plaintiffs seeking protective orders to prevent future harm,” as such a standard is difficult for sexual assault victims to meet. The N.J. Coalition explained that because alleged SASPA victims often proceed pro se, do not have a right to counsel, and lack access to evidence typically available to criminal defendants, it is extremely difficult for SASPA victims to meet the standard of “prostration of faculties,” which level of difficulty was not intended by the Legislature.
According to defendant, “the prostration of faculties” standard should stand because it does not impermissibly shift the burden to plaintiff to show she was too intoxicated to consent to sexual activity, but rather, it compels the trial court to analyze and identify how intoxicated plaintiff was during the encounter as well as other relevant factors. In addition, defendant argued that a finding that “all sexual assault victims are unable to consent merely because they consume alcohol” would improperly “suggest women need someone else to decide their ability to consent for them.”
Pursuant to a de novo review, the Supreme Court held that although the SASPA statue does not define “consent” or “establish guideposts for determining when the sexual activity at issue is nonconsensual,” courts should utilize the standard outlined in M.T.S., the landmark decision that established “affirmative consent” as the standard in sexual assault cases. See 129 N.J. 422. The Supreme Court held that this standard was specifically utilized so that the alleged victim would not have the burden to show that he or she “expressed non-consent or denied permission.”
In addition, the Supreme Court held that “in 2020, almost 30 years after the M.T.S. decision,” the Legislature amended the criminal sexual assault statute for the specific purpose of clarifying that “the only requirement for a conviction under the sexual assault statute is proof beyond a reasonable doubt that there was sexual penetration and that it was accomplished without the affirmative and freely-given permission of the victim.” Therefore, the standard for consent for an alleged victim in a SASPA case should be no different than the standard for consent for an alleged victim in a criminal sexual assault case. To suggest otherwise would create senseless incongruency in terms of the criminal and civil protections in sexual assault cases.
Furthermore, the Supreme Court explained that the standard for consent applicable to an alleged victim under SASPA and the standard for an intoxication defense applicable to an accused criminal defendant are different. The fact that the Legislature did not reference the criminal code when drafting the SASPA statute and specifically eliminated factors which would put the victim on trial (including eliminating a showing that the alleged victim “suffers signs of injury” and “cried out for help”) proves that placing the burden on the victim to show she did not consent under the “prostration of faculties” standard is misplaced. The Supreme Court emphasized that a ruling which would compel an alleged sexual assault victim to prove that she did not consent to the sexual activity would “set our law back decades to a time when alleged victims were the ones essentially put on trial.”
Although the Appellate Division did not address the second prong of SASPA, the Supreme Court required the trial court’s reconsideration of whether a protective order was necessary to prevent the “possibility of future risk to the safety or well-being of the alleged victim.” Specifically, the Supreme Court determined that “it cannot be that simply filing for a protective order is sufficient to satisfy prong two or it would be met in every single SASPA case.” In fact, given that the trial court found that there was no further contact between the parties after the aforesaid encounter, the Supreme Court held that “it appears to counter plaintiff’s establishing prong two.” Accordingly, the Supreme Court further remanded the issue of prong two in order for the trial court to make “additional findings of fact that support a determination either that [the second] prong has been satisfied, or not, in deciding whether to issue the final restraining order.”
Observation: SASPA (The Sexual Assault Survivor Protection Act) N.J.S.A. 2C: 14-16, was enacted in 2015 to expand the rights of sexual assault victims who would not be afforded protection under the domestic violence statute because they have no legal or dating relationship with the accused. Here, for example, the parties had no prior contact prior to the episode which resulted in the action under SASPA. Restraining Orders provided under SASPA are not criminal orders and do not carry criminal penalties unless violated. These orders are designed to protect the victim’s physical, mental, and emotional well-being by preventing the perpetrator from making further contact with them. C.R. v. M.T. is considered a monumental win for victims of sexual assault as victims no longer bear the burden of proving there was no consent – instead, the perpetrator is now responsible for showing that permission to engage in sexual activity was freely and affirmatively given.
It is important for practitioners to remember that even after it is established that a non-consensual sexual assault occurred, it is not self-evident that the second SASPA prong is met in every case. One cannot assume based on the severity of the predicate act that there is a “possibility of future risk to the safety or well-being” of the victim. Practitioners should come prepared to argue why after a single event the victim will need future protection from the perpetrator when there is no objective evidence that these parties will have another occasion to meet in the future.
State v. E.J.H., 466 N.J. Super. 32 (App. Div. 2021)
Issue: Did the trial court err in refusing to accept Husband’s guilty plea for contempt, finding as a matter of law that Husband did not knowingly violate the Temporary Restraining Order (“TRO”) when Husband directed comments and lewd gestures at a “Nest” home security camera to which Wife had access?
Holding: Yes. The Appellate Division determined that Husband was aware of the high probability that Wife would hear his comments and observe his lewd gesture, which clearly were directed at her via the “Nest” home security camera. The Appellate Division further explained that the medium in this case was not unlike sending a video or message via text or email to Wife. Accordingly, the Appellate Division concluded that Husband acted knowingly, N.J.S.A. 2C:2-2(b)(2), and his contact violated the TRO, N.J.S.A. 2C:29-9(b)(1).
Discussion: There was a TRO pending between defendant (“Husband”) and plaintiff (“Wife”), issued on January 31, 2020 which prohibited Husband from “having any oral written, personal, electronic or other form of contact or communication” with Wife. The TRO also limited Husband’s parenting time with the parties’ daughter to supervised visitation by two adult family members, who were preapproved by Wife, and required Husband to “have the Nest cameras on at all times” during Husband’s supervised parenting time. That way, Wife would have the ability to observe Husband during his parenting time via video without being present at Husband’s home.
On February 23, 2020, while the TRO remained pending, Husband had parenting time with the parties’ daughter on which occasion Husband looked directly at the Nest camera and said, “Oh I’m sorry I wasn’t nice to you. Good reason to keep me from my daughter for three months, because I wasn’t nice to you.” Husband then proceeded to make a “lewd gesture at the camera.” Based on these actions, a contempt charge was filed against Husband. A person is guilty of contempt “if that person purposely or knowingly violates any provision in an order entered under the provisions of the [Act].” N.J.S.A. 2C:29-9(b)(1).
Husband attempted to enter a guilty plea during his contempt hearing. During his plea allocution, Husband acknowledged that the TRO required the Nest camera’s “active” operation during his parenting time. Husband said the issuing judge, who was not the plea judge, ordered the activation of Nest cameras in Husband’s home as an “amendment to [the couple’s] existing consent order.” When asked whether he “knew by making that gesture or verbal communication into the camera” he violated the TRO, Husband responded:
In hindsight, yes. . . . I don’t want to, you know, complicate things. I don’t know when [Wife]’s watching and when she’s not. And my understanding is I should have known. And if I should have known, and [the Nest camera is] on . . . I’m imputed with that knowledge, then . . . yes, I should have known, . . . and in hindsight I shouldn’t have done it.
Upon further questioning, Husband clarified he was “aware” those communications would have violated the TRO if Wife was present at the time they were made.
Ultimately, the trial court refused to accept Husband’s guilty plea and found, as a matter of law, that Husband did not knowingly violate the TRO. Ultimately, the trial court judge dismissed the contempt charge and held that Husband was not “on notice that while he’s in his house, in his living room with his family, he’s not allowed to flip the bird or curse or yell.” In reaching this decision, the trial court judge noted that Husband’s consent to permit the Nest camera in his home did not “take away his freedom of speech” or “his right to get angry and yell in his home.”
The Appellate Division reversed and remanded the trial court’s ruling. The Appellate Division specifically referred to the comments made by Husband during his contempt hearing whereby he admitted that he was aware that if Wife had been watching the Nest video during his parenting time when he made the aforesaid comments, then it would have violated the TRO because it was “a communication” directed at her. Although it was possible that Wife was not watching the Nest video footage when Husband directed his comments at the Nest camera, the Appellate Division explained that “under the circumstances here, [the Husband] was aware of the high probability that [the Wife] would hear his comments and observe his lewd gesture, which clearly were directed at her.”
Observation: In this case, communications through a Nest camera were viewed no differently than if the Husband had sent the Wife a video, text message or email. This ruling makes clear that the law must adapt to technological advances. With the expansion of technology comes the expansion of protections under the New Jersey Prevention Against Domestic Violence Act.
Note that defendants can be held in contempt of a TRO, before any final finding of domestic violence is made. Especially when children are involved such that the parties may have some degree of contact before a final hearing, clients should be instructed to be careful of their conduct which takes place while a TRO is pending.
D.M.R. v. M.K.G., 467 N.J. Super. 308 (App. Div. 2021)
Issue: Did the trial court deprive defendant of due process based on multiple irregularities which occurred during the remote Final Restraining Order (“FRO”) hearing including but not limited to its rescheduling of the FRO hearing only one day after defendant was served with the domestic violence complaint?
Holding: Yes. Even when court proceedings are conducted remotely through videoconferencing technology, trial courts must endeavor to uphold the due process rights of litigants. In this matter, the trial court denied defendant due process by requiring her to prepare for an FRO hearing, without counsel, only twenty-four hours after receiving notice of the domestic violence complaint which was served by the trial court via email. The trial court also failed to ensure that the FRO hearing was impartial by asking questions of plaintiff’s mother and defendant which crossed the line as to its role as a neutral factfinder.
Issue: Did the trial court properly conclude that the issuance of an FRO was necessary to protect plaintiff from future harm?
Holding: No. The trial court erred in finding that an FRO was required to protect the plaintiff from immediate danger or to prevent further abuse. Specifically, no findings of fact were made by the trial court during the FRO hearing as to the presence of danger to plaintiff and plaintiff did not express during his testimony that he was in fear of the defendant. There was also no prior history of abuse between the parties. Accordingly, the plaintiff failed to meet his burden under Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), to show that there was a need for future protection.
Discussion: This matter came before the trial court for an FRO hearing because of a domestic violence complaint filed by plaintiff in which a Temporary Restraining Order (“TRO”) was issued against defendant for harassment. By way of brief background, the parties were involved in a dating relationship which had ended prior to the allegations of harassment. On May 20, 2020, an incident occurred in which defendant went to plaintiff’s residence at 12:30 a.m. to discuss the ownership of a dog, which pet had been part of both their lives. It is this incident which culminated in the entry of a TRO against defendant.
During the return date for the FRO hearing which was conducted telephonically by the trial court on May 28, 2020, both parties appeared pro se and the trial judge questioned defendant as to whether she wanted to proceed with the hearing on that day or postpone the hearing until a later date in order to retain counsel. Although defendant expressed to the trial judge that she did not believe that she would need an attorney, it became clear upon further questioning that defendant was never served with a copy of the TRO complaint. Despite the trial court’s efforts to schedule the FRO hearing for the following month, defendant informed the trial judge that she had military duties on weekdays and as a result, the FRO hearing was rescheduled for the following day. The trial judge informed defendant that he would email her a copy of the TRO complaint the same day and also explained on the record the harassment allegations asserted against her in the event that she did not receive the complaint.
The following day the parties appeared for the rescheduled FRO hearing by Zoom. Plaintiff testified that he saw defendant outside his house at 12:30 a.m. with four men and two vehicles and that defendant was repeatedly calling his phone and knocking on the doors and windows. He further testified that his mother told him that defendant was the first one to knock on the door. When the trial judge asked plaintiff whether his mother was going to testify, plaintiff admitted that his mother was standing next to him and the trial judge thereafter instructed that the mother was not permitted to help him testify.
Plaintiff’s mother ultimately testified during the hearing in which she said that the men accompanying defendant were aggressive, but the defendant was not. She noted in her testimony that it was unclear to her who was knocking on the doors and windows late at night but that she smelled alcohol on the breath of an unidentified person and ultimately called the police. The mother testified that they were yelling at her to “bring my pussy son outside.” Notably, defendant declined the right to cross examine plaintiff or his mother during the hearing.
In contrast to the testimony provided by plaintiff and his mother, defendant testified that she had gone to plaintiff’s house in order to reclaim the dog with her mother and two female friends. She testified that she had knocked on the door and asked to speak to plaintiff about the dog since it was her understanding that after her break up with plaintiff he no longer wanted the dog. Defendant clarified during her testimony that she had no violent history with plaintiff or had any confrontation with him during the incident.
After hearing the remote testimony of the parties, the trial judge entered an FRO against defendant. In support of its decision, the trial court particularly relied on the testimony of plaintiff’s mother whom the court found to be credible and unbiased “as she would have no reason to concoct stories.” The trial judge pointed to the “extra concern about a mother protecting her children that was persuasive.”
On appeal, the Appellate Division found that the trial court committed certain errors during the FRO hearing which effectively denied defendant adequate due process. About the delinquent service of the TRO complaint, the Appellate Division stated that the trial court has an independent duty to determine the cause of the failure to serve a defendant even if he or she does not object to the failure to serve or request an adjournment. Here, the trial court did not conduct a proper investigation and emailed defendant the TRO complaint 24 hours before the FRO hearing was to commence. Accordingly, the Appellate Division determined that the trial court did not properly exercise its discretion in rescheduling the FRO trial to a later date so that defendant, who was electing to proceed without counsel, could prepare a legitimate defense. The Appellate Division noted that the “Supreme Court has found that due process is violated when a defendant must go forward with an FRO trial twenty-four hours after being served with a domestic violence complaint.” H.E.S. v. J.C.S., 175 N.J. 309, 323-24 (2003).
The Appellate Division also observed that the presence of plaintiff’s mother throughout the Zoom trial was “problematic.” It was clear during the trial that the mother was standing next to plaintiff thereby creating an appearance that she may have been assisting him with his testimony. Notwithstanding the fact trial courts have had to adapt since the COVID-19 pandemic to utilizing videoconferencing technology such as Zoom and Microsoft Teams for trial, the Appellate Division noted that it is imperative that due process and the integrity of the judicial process be maintained.
There was also concern as to the trial judge’s examination of plaintiff’s mother and defendant during the FRO hearing which called into question the impartiality of the proceedings. The Appellate Division observed that there were questions asked by the trial judge to plaintiff’s mother which appeared to serve the purpose of bolstering her testimony rather than assisting the trial judge’s understanding of the facts. Additionally, the questions asked by the trial judge to defendant seemed to be more critical and accusatory particularly as to why she decided to knock on plaintiff’s door after midnight.
Not only were there clear deficiencies by the trial court as to how the FRO hearing was conducted, but there were no findings of fact made by the trial judge after the hearing concluded which demonstrated that there was a need for an FRO to prevent future acts of abuse by the defendant. Even if the trial judge had undertaken this analysis under Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006), the Appellate Division explained that there was an absence of evidence in the record of the need for an FRO to prevent future danger or threats since plaintiff did not express fear of defendant, plaintiff’s mother testified that defendant was not aggressive, and there was no prior history of abuse between the parties. For these reasons, the Appellate Division reversed the FRO against defendant.
- N.J.R.E. 615 gives the court the discretion to sequester witnesses who are expected to testify. Most courts sequester fact witnesses who testify in a domestic violence proceeding. Here, plaintiff’s star witness, his mother, was in the very room where he was testifying via zoom. Courts need to be extra sensitive of sequestration in the world of Zoom trials (e.g. moving the camera around in the room the witness is testifying from to ensure he is not being coached and to ensure other potential witnesses are not present). The reason for sequestration is to prevent prospective witnesses from hearing what the other witnesses detail in their evidence (in addition to discouraging collusion and exposing contrived testimony). In domestic violence cases, where there usually is no demonstrative evidence – and cases come down to he said, she said and who do you believe, sequestration of witnesses is imperative.
- The Appellate Division re-affirms that Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006) is alive and well and usually the best defense to an isolated act of domestic violence. Under Silver, even if the predicate act of harassment is committed (and most people would view it as harassment for an uninvited person to be knocking on a door after midnight), you still need to prove that plaintiff needs the FRO for his protection from future danger or threats of violence.
W.M. v. D.G., 467 N.J. Super. 216 (App. Div. 2021)
Issue: Did the trial court err in treating as a summary action plaintiff’s request for custody based on being the child’s psychological parent, and in failing to conduct a plenary hearing and to appoint counsel for the minor child?
Holding: Yes. Although FD custody disputes are typically handled in a summary fashion, the facts of this case warranted that the matter be placed on a complex track especially considering that plaintiff raised a cognizable claim for psychological parenthood and the child who was almost 17 years old had an attorney who sought to intervene in the action. Trial courts in the Family Part should not automatically treat FD custody cases as a summary action if the issues involved are complex and require the need for discovery.
Discussion: The parties in this matter were embroiled in a dispute in which the defendant, D.G., sought the return of physical custody of her biological child, A.M.B. (hereinafter “Alex”), who was the intervenor in this action. At the time of the legal proceedings in the trial court, Alex was in the eighth grade and plaintiff, W.M., was his National Honor Society advisor.
Prior to Alex’s graduation from middle school in 2017, W.M. offered to assist D.G. with completing an application for Alex in order to attend a high school in Newark. After D.G.’s sister passed away in March 2017, D.G. became withdrawn and as a result, W.M. assisted in caring for Alex by taking him to school and church. With D.G.’s consent, Alex eventually began living with W.M. and her family in or around July 2017. Alex would periodically visit D.G. who lived only a few blocks away from W.M.’s residence.
After a period of time, D.G. expressed concern that W.M. was spoiling Alex by purchasing him expensive gifts such as an iPhone. These concerns further intensified in November 2019 after D.G. learned that Alex was chosen to appear in a television commercial. When Alex visited D.G. to show her an expensive jacket which he received by participating in the commercial, D.G. became angry, claiming that W.M. was buying the affection of Alex and demanded of W.M. that Alex be returned to her custody immediately.
Both parties filed applications with the trial court in late 2019 with W.M. seeking to retain custody of Alex and D.G. requesting that Alex be returned to her home. The trial court denied both applications pending a hearing but allowed Alex to continue living with W.M. until the conclusion of the hearing.
At the hearing on January 29, 2020, neither party was represented by counsel and both parties testified before the trial judge. D.G. testified that she never agreed to transfer custody to W.M. but acknowledged her appreciation for W.M.’s assistance in helping Alex enroll in a local high school and engaging in other activities to support the child. D.G. recounted during her testimony that she had issues with W.M. overindulging Alex and involving him in too many activities.
W.M. noted during her testimony that when she met Alex in the seventh grade, he had a chronic absentee record and that he did not have enough money to pay his National Honor Society dues. W.M. testified that D.G. embraced her assistance and that she also provided a stable living situation for the child. Specifically, W.M. testified that Alex’s brother has severe mental health issues and is dangerous and that because of safety concerns, D.G. feared that DCPP would take Alex away. The record in the trial court revealed D.G. requested that W.M. write a letter to DCPP in October 2017 notifying them that Alex was living at W.M.’s home for his safety which was in a better condition than D.G.’s home. During her testimony, W.M. requested that trial court continue the status quo and allow Alex to remain in her home.
The testimony of Alex was also taken during the hearing in which he testified that living with D.G. was unhealthy. He admitted that he never had a relationship with his mother and stated that when he was living at home, he was alone for more than half the time. Alex emphasized during his testimony that he felt that he was not wanted since his siblings were abusive and his mother was often absent. Although Alex testified that he had more to say regarding his relationship with the parties and living conditions, it was difficult for him to get all his statements on the record.
At the conclusion of the January 29, 2020 hearing, the trial judge found that despite the good intentions of W.M. and her extensive efforts to help care for Alex including providing a stable home with satisfactory living conditions, D.G. never relinquished physical custody of Alex and therefore the child was to return home to D.G. Despite the trial judge’s clear directives, Alex remained in W.M.’s home until March 12, 2020 at which time he was escorted out of W.M.’s home by Newark police officers.
On March 13, 2020, W.M. filed an Order to Show Cause seeking the immediate return of Alex to her home and also sought to be designated as Alex’s psychological parent in order to be awarded custody by the trial court. W.M.’s application also requested that a plenary hearing be scheduled to address these custody claims and petitioned the trial court to have an attorney appointed for Alex pursuant to R. 5:8A. Although the trial court denied W.M.’s emergent relief, it scheduled a return date on March 17, 2020 in order to hear her application.
D.G. did not appear at the March 17, 2020 hearing but W.M.’s counsel represented that she had been served with a notice of emergent filing by email. During the proceedings, W.M.’s counsel also informed the trial court that Alex had retained counsel who was ready, willing, and able to participate in the hearing. However, the trial judge declared that it was not necessary for Alex to be represented by counsel for the current hearing or for any future hearing. The trial judge found Alex to be intelligent and well-spoken when he previously testified and since this was a non-dissolution matter in the FD docket, there was no need for the child to have counsel.
As for the additional requests in W.M.’s application, the trial judge determined that she previously considered W.M.’s position during the January 29th hearing and it was evident that D.G. remained the custodial parent of Alex. There was nothing presented from the oral testimony or documentary evidence to change the trial court’s decision as to custody since it would be depriving D.G. of her constitutional rights to parent her child. The trial court was also unpersuaded by the psychological parent argument raised by W.M.’s counsel, concluding that W.M. needed clear and convincing evidence of parental abandonment, unfitness, or gross misconduct to trump D.G.’s right to care for her child. As a result, physical custody of Alex remained with D.G.
On appeal, W.M. contended that the trial court erred in failing to conduct a plenary hearing to address Alex’s interests, misapplying the law relating to psychological parentage, and mistakenly denying Alex the right to counsel in order to have a law guardian represent his interests.
The Appellate Division reversed the trial court’s rulings which denied the appointment of counsel to Alex and directed the scheduling of a plenary hearing in order to fully address the new custody issues raised by W.M. In support of its holding, the Appellate Division noted that a third party establishing exceptional circumstances by proving psychological parentage may rebut the presumption in favor of a parent seeking custody even if the natural parent is not an unfit parent. Here, the Appellate Division found that a plenary hearing should have ensued since there was an incomplete record of the psychological parentage issue despite the fact that there was ample evidence of W.M. being intimately involved in Alex’s education and upbringing.
Notwithstanding that the legal dispute was an FD matter, a summary proceeding, the Appellate Division admonished the trial court for not utilizing its discretion under the New Jersey Court Rules to treat this as a complex custody matter. The Appellate Division added that based on the credible claim of psychological parenthood, the fact the minor child was seventeen and had an attorney ready to represent him, and the absence of an attorney for D.G., the matter should have been placed on the complex track and testimony should have been taken from the interested parties in order to determine whether W.M.’s claim as a psychological parent warranted a change in physical custody of the minor child. However, due to the fact that Alex was almost 18 at the time of the appeal, the Appellate Division ultimately determined not to remand the matter back to the trial court in order to assess the merits of W.M.’s psychological parent claim.
Observation: Although not reached by the court in this case, practitioners should be aware that there is a 4-prong test to establish psychological parentage:
- The legal parent must consent to and foster the relationship between the third party and the child;
- The third party must have lived with the child;
- The third party must perform parental functions for the child to a significant degree; and
- A parent-child bond must be forged.
See V.C. v. M.J.B., 163 N.J. 200 (2000)
It is not required that the natural parent be deemed unfit for the psychological parent to be granted custody.
The errors pointed out by the Appellate Division in this matter harken back to Judge Koblitz’s criticism of how FD matters are handled by the court in J.G. v. J.H., 457 N.J. Super. 365 (App. Div. 2019): “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.”
State v. W.C., 468 N.J. Super. 324 (App. Div. 2021)
Issue: Did the Family Part commit reversible error by denying the State’s motion to seize the firearms of a defendant, pursuant to N.J.S.A. 2C:25-29(b) of the New Jersey Prevention Against Domestic Violence Act (“PDVA”), where a Final Restraining Order (“FRO”) was initially entered against the defendant and later vacated at a new FRO trial?
Holding: No. The State’s reliance on N.J.S.A. 2C:25-29(b), requiring a mandatory ban of firearms for persons who commit domestic violence for a minimum period of two years, was improper. A strict application of this statute would lead to an illogical and absurd result because the purpose of the PDVA is to prevent further domestic violence and, in this case, no remedy under the PDVA was needed since the FRO was invalidly entered by the trial court and then vacated. Accordingly, once an FRO is vacated, it is as though the court never made a finding of domestic violence against the defendant and, therefore, the forfeiture of firearms provision of the PDVA is inapplicable.
Discussion: On May 6, 2020, a domestic violence complaint was filed against defendant (“W.C.”) in which the plaintiff alleged that the defendant committed the predicate act of harassment under the PDVA by standing outside plaintiff’s home holding a sign directed towards the parties’ children saying defendant loves them and that when plaintiff went outside, the parties got into an argument. The trial court entered a Temporary Restraining Order (“TRO”) and the police seized firearms which belonged to W.C.
At the May 19, 2020 FRO hearing, W.C. claimed that he had only received notice of the trial earlier that week and that he sought an adjournment in order to retain counsel. The trial court denied W.C.’s adjournment request finding that the request was made too late and that he was also delinquent in his child support payments. After conclusion of the trial, the trial court entered an FRO against W.C.
Thereafter, W.C. obtained counsel who petitioned for reconsideration of the FRO, an order vacating the FRO, and a new trial. The trial court granted W.C.’s motion and scheduled a new FRO trial on June 18, 2020. In the interim, the State filed a motion in the Family Part to seize W.C.’s weapons. The State relied on a certification from the Gloucester County Prosecutor’s Office which referenced the entry of the May 19, 2020 FRO, and the seizure of the weapons following the entry of the TRO. The certification noted that W.C.’s possession of a firearms would not be in the interest of the public health, safety, or welfare under N.J.S.A. 2C:58-3(c)(5).
At the new domestic violence trial on June 18, 2020, the same judge who entered the initial FRO determined that plaintiff did not meet her burden in order to obtain an FRO. As a result of that finding, the trial court vacated the May 19, 2020 FRO and dismissed the domestic violence complaint.
On July 31, 2020, during the hearing on the State’s forfeiture motion, W.C. argued that the FRO was improvidently granted and that based on this error, the subsequently vacated FRO could not support the mandatory forfeiture of his firearms under the PDVA. In contrast, the State abandoned its position regarding the interest of public health under N.J.S.A. 2C:58-3(c)(5) and only argued that it was entitled to forfeiture because N.J.S.A. 2C:25-29(b) under the PDVA barred the return of W.C.’s weapons for a two-year period following entry of the May 19, 2020 FRO.
The trial court ultimately denied the State’s forfeiture application based on its determination that the two-year bar under the statute did not apply since the FRO was improvidently granted and vacated on that basis. Subsequently, the State took the issue up on appeal.
The Appellate Division affirmed the ruling of the trial court in finding that there was no basis to grant the State’s forfeiture application since there was no determination that W.C. committed an act of domestic violence under the PDVA. The record established in the trial court only showed that the victim filed a civil domestic violence complaint against W.C. However, because the FRO was vacated by the trial court after a new trial, the record did not show that the victim met her burden by a preponderance of the evidence that an act of domestic violence was committed or that there was a need to prevent W.C. from future acts of domestic violence.
While the Appellate Division acknowledged that a literal interpretation of N.J.S.A. 2C:25-29(b) would support the State’s claim that the entry of an FRO against a defendant automatically creates a minimum two-year ban for possession of firearms, it also recognized that a strict application of its language would lead to an absurd result, which is incongruent with the legislative scheme of the PDVA. The Appellate Division further noted that the spirit of the PDVA is to provide a remedy to those victims of domestic violence who need protection and, in this case, the record lacked any evidence that there was domestic violence under the PDVA in order to warrant a forfeiture of the defendant’s firearms.
Moreover, the Appellate Division explained that the State’s argument that defendant was subject to the FRO at the time that it brought its forfeiture motion is uncompelling since the FRO was later determined to be invalid and should not have been entered in the first instance. The Appellate Division made clear that vacating the FRO, coupled with the dismissal of the victim’s PDVA complaint, constituted a determination that defendant lacked any fault which would have permitted a forfeiture of weapons based on domestic violence.
Observation: New Jersey prohibits the purchase, possession, and ownership of firearms for persons who are found to have committed domestic violence. In the W.C. case, the FRO that was initially entered against defendant, was subsequently vacated by the trial court due to it being issued on improper grounds. To put it another way, this meant that the FRO was void insofar as there was never a valid finding in the trial record that the defendant committed domestic violence, as later established at the second FRO trial. The outcome of the State’s forfeiture motion in W.C., in which it was seeking the imposition of a two-year minimum ban for firearms under N.J.S.A. 2C:25-29(b), undoubtedly would have been different had the FRO been validly entered and then vacated for other reasons, such as if the defendant were to present good cause for dissolving the FRO at a Carfagno hearing.
The Appellate Division also noted in W.C. that the State effectively abandoned its argument both in the Family Part and on appeal that the defendant should be disqualified from possessing firearms, as it would not be in the interest of the public health, safety, and welfare based on N.J.S.A. 2C:58-3(c)(5). Based on this statute, a legal determination could have been made that defendant should be prohibited from owning or possessing firearms without having to address the validity of the FRO or finding that the defendant was at fault under the PDVA. However, the State elected to pursue its forfeiture application based on the remedies prescribed under the PDVA and, ultimately, lost on those specific grounds.
In many cases, PDVA Complaints and TROs are dismissed in lieu of civil restraints embodied in a pending divorce or FD action. State v. W.C. would not appear to shield gun holders from seizure in those cases where dismissal was not on the merits.
Greebel v. Lensak, 467 N.J. Super. 251 (App. Div. 2021)
Issue: Did the trial court correctly determine that there was an actual conflict of interest which warranted the disqualification of defendant’s counsel?
Holding: Yes. While plaintiff met with defendant’s counsel years prior to the litigation at issue, the information which was disclosed by plaintiff was substantially related to the litigation and was material to plaintiff’s claim for palimony, which was the central issue before the trial court. Plaintiff revealed personal information to defendant’s counsel regarding the parties’ relationship and financial arrangements which could be utilized against her in the litigation, as it provided insight as to her motivation in her relationship with defendant.
Issue: Did the trial court abuse its discretion in sealing defendant’s motion pleadings which were filed by his disqualified counsel?
Holding: Yes. The trial court cannot bar public access to motion pleadings unless it can be established that disclosure will likely cause a clearly defined and serious injury to any person and there is an interest in privacy which substantially outweighs the need for access. Here, the trial court did not undertake this analysis and it was clear that defendant’s motion was based primarily on information and documentation available to the public and long after the consultation between plaintiff and defendant’s counsel which gave rise to the conflict of interest.
Discussion: The parties in this action did not marry but were involved in a long-term relationship for nearly 13 years. During the course of their relationship, the parties purchased a home, cohabitated, and raised a daughter together. Defendant promised to financially support plaintiff who quit her job to care for the child.
In 2005, plaintiff sought legal advice from attorney VC regarding her financial support from defendant after defendant threatened to end their relationship. During this consultation with VC, plaintiff provided material information regarding the parties’ financial arrangements, lifestyles, assets, and income. VC explained to plaintiff the legal claim for palimony and her right to support from defendant.
Years later, plaintiff retained a different attorney, and filed a Complaint for palimony against defendant on October 27, 2014. This litigation was ultimately resolved by way of a settlement agreement wherein defendant agreed to make palimony payments to plaintiff in the amount of $3,435.31 per month over twelve years and weekly child support payments of $142.00 until their daughter’s emancipation. These terms were incorporated into a final judgment entered on September 4, 2018.
Following the entry of the final judgment, defendant retained VC who on September 3, 2019 filed a motion to vacate the final judgment pursuant to R. 4:50-1, re-open discovery, and set aside the settlement agreement. In his application, defendant argued that plaintiff misrepresented and concealed her income and assets during settlement negotiations.
Thereafter, on October 19, 2019, plaintiff moved to disqualify VC and his firm from representing defendant based on the communications which plaintiff disclosed to VC in 2005. After oral argument on the Motions took place, the trial court found that a disqualifying conflict existed based upon plaintiff disclosing to VC significantly harmful information regarding the parties’ finances and promises for support in addition to the fact that the disclosure was substantially related to the issues which involved VC’s present representation of defendant.
In addition to disqualifying VC and his firm from representing defendant’s interests, the trial court sealed the defendant’s motion pleadings filed by the VC firm. The trial court believed that it was imperative for the work product of the VC firm to not be utilized should defendant represent himself or retain new counsel in the litigation.
Defendant appealed the trial court’s rulings contending in primary part that the VC law firm was erroneously disqualified because plaintiff’s allegations lacked specificity and that any information disclosed by plaintiff would be discoverable. Upon consideration of the defendant’s arguments and the record in the trial court, the Appellate Division affirmed the decision to disqualify the VC firm.
R.P.C. 1.18(a) “prohibits a lawyer who has had discussions with a prospective client from revealing any information acquired during the consultation…except to the extent R.P.C. 1.9 would permit the lawyer to reveal information acquired from a former client.” The Appellate Division noted that in order to warrant disqualification, there must be two factors at play: 1) the information provided during the consultation must be the same or substantially related to the present lawsuit; and 2) the disclosed information must be significantly harmful to the former client in the present lawsuit. In applying these legal principles to the facts of this case, the Appellate Division concluded that both factors were clearly met. Notably, plaintiff made material representations to VC regarding the parties’ relationship, financial arrangements, lifestyle, assets, and incomes which were substantially related to plaintiff’s palimony claim and defendant’s application to vacate the final judgment. It was also undisputed that plaintiff disclosed personal information and concerns regarding the parties’ relationship and financial arrangements that could be utilized in an adverse manner by VC to challenge her palimony award or in the course of future settlement negotiations. Although the information was disclosed nine years earlier, the Appellate Court found that information substantially relevant to the early years of the parties’ relationship.
While the Appellate Division affirmed the trial court’s order to disqualify defendant’s counsel, it reversed and remanded the part of the order sealing defendant’s motion pleadings and barring their further use in the litigation. The Appellate Division pointed out that there is a presumption regarding public access to documents and material in a civil action. Hammock by Hammock v. Hoffman-LaRoche, 142 N.J. 356, 380 (1995). This presumption may be overcome where the disclosure will likely cause a clearly defined and serious injury to any person and the person’s privacy interest substantially outweighs the need for access. R. 1:38-11. The Appellate Division found that the trial court made no findings of fact or conclusion of law demonstrating sufficient cause for sealing. Moreover, defendant’s motion was predicated on public records of property transfer and other allegations which occurred long after the consultation between plaintiff and VC.
Observation: As to the issue of whether there is a conflict under R.P.C. 1:18(a), the question is not how long ago the attorney had contact with the client. Rather, the issue turns on the nature of the information disclosed and whether it is related to the current lawsuit and harmful to the former client.
While not relevant to the facts of this case, practitioners should be mindful of the following: A person who communicates with a lawyer to disqualify that lawyer is not considered a prospective client. See official comment to R.P.C. 1.18. Furthermore, a lawyer who advises a client to contact other lawyers for representation essentially on a pretextual basis, in order to disqualify those lawyers, is engaging in prohibited conduct prejudicial to the administration of justice under R.P.C. 8.4(d). See Advisory Committee on Professional Ethics, Opinion 703 (2006).
The underlying issue in the case concerned palimony. On January 18, 2010, New Jersey enacted N.J.S.A. 25:1-5(h) which placed palimony contracts under the statute of frauds and required a writing with the advice of independent legal counsel for such contracts to be enforceable. Practitioners should be aware that, on November 29, 2021, the Supreme Court entertained argument in the matter of Moynihan v. Lynch, which challenges the constitutionality of the mandatory counsel provision of the statute as interference with freedom to contract under the United States and New Jersey Constitutions. The case also questions whether equitable remedies (partial performance, etc.) could rescue an otherwise unenforceable palimony contract
Bisbing v. Bisbing, ___ N.J. Super. ___ (App. Div. 2021)
Issue: Did the trial court err in determining that plaintiff’s obligation to pay counsel fees to defendant was non-dischargeable in federal bankruptcy proceedings?
Holding: No. The trial court properly determined that the counsel fee award was non-dischargeable in federal bankruptcy as it was a domestic support obligation and in the nature of support. The counsel fees which the defendant was entitled to could have been utilized towards the children’s support, such that these fees were tantamount to an award of support to defendant for the benefit of the children. Furthermore, although there was no pending bankruptcy petition filed by plaintiff at the time of the trial court’s decision, there was an ongoing dispute between the parties as to payment of counsel fees in which there was proper jurisdiction for the trial court to rule as to the non-dischargeability of the counsel fee award.
Discussion: One year after the parties divorced in April 2014, plaintiff (hereinafter “Wife”) sough to relocate the children to Utah. The issue of relocation was previously remanded by the New Jersey Supreme Court to determine whether plaintiff’s desire to relocate out of state with the children was in the children’s best interests. Following a plenary hearing, the trial judge entered an Order on June 15, 2019 and issued a lengthy opinion in which he found that the relocation was not in the children’s best interests and defendant (hereinafter “Husband”) was awarded $425,000.00 in counsel fees. Wife did not appeal the June 2019 Order.
Husband thereafter in October 2019 filed a motion to enforce the counsel fee award. This application was denied without prejudice as Wife had filed two Chapter 13 bankruptcy petitions in federal court which were later dismissed in March 2020. As a result of these dismissals, the trial court reinstated Husband’s enforcement motion and ruled on June 1, 2020 that the counsel fee award was non-dischargeable in bankruptcy pursuant to 11 U.S.C. § 523(a)(15) (Section 15). Wife also did not appeal this decision by the trial court.
After Husband filed another motion seeking to have the fees deemed non-dischargeable under Section 5 of the Bankruptcy Code, Wife responded by filing an application seeking reconsideration of the June 2020 Order. The trial court entered an Order on July 31, 2020 finding in favor of Husband by declaring that the counsel fee award is of the nature and substance of a domestic support obligation such that the award is non-dischargeable under Section 5 of the Bankruptcy Code. Likewise, the trial court affirmed its previous ruling that the counsel fee award was non-dischargeable under Section 15 of the Bankruptcy Code.
Wife subsequently filed an appeal of the trial court’s July 2020 Order. The thrust of Wife’s appeal was that the ruling by the trial judge that the counsel fee award was non-dischargeable was not only legally improper, it was an advisory opinion since there was no bankruptcy action pending. The Appellate Division affirmed the decision of the trial court regarding the counsel fee award and rejected Wife’s arguments in their entirety.
The Appellate Division found that Wife’s claim that the trial court issued an advisory opinion since no bankruptcy petition was pending had no merit since Wife had already filed for bankruptcy by the time of the trial court’s July 31, 2020 Order. Thus, the Appellate Division noted that the trial court could reasonably conclude that in light of the ongoing controversy in which there were previously multiple filings in federal bankruptcy court, Husband had the right to be protected from subsequent attempts to utilize the bankruptcy process in order to discharge a valid counsel fee debt.
The Appellate Division agreed with the trial court that the counsel fee award to the Husband could be viewed as a domestic support obligation under Section 5 of the bankruptcy code, thereby being insulated from a bankruptcy discharge. It observed that the trial court relied on the Appellate Division’s opinion in Orlowski v. Orlowski, 459 N.J. Super. 95 (App. Div. 2019), in order to arrive at the conclusion that a court-ordered obligation to pay an ex-spouse’s counsel fees in matrimonial proceedings is a non-dischargeable domestic support obligation. The Appellate Division also noted that the trial judge properly applied the law to the facts of this case by stating that funds which Husband expended during the relocation litigation could have been utilized for the children’s needs such as tuition, child support, and other needs.
Not only did the Appellate Division determine that there was ample case law underpinning the trial judge’s decision in this matter, it also concluded that Section 5 (domestic support obligations) and Section 15 (all other obligations to a spouse, former spouse, or a child of the debtor not otherwise described in Section 5) of the bankruptcy code provided legal protection for Husband’s counsel fee award. The Appellate Division explained that a domestic support obligation is typically defined as in the nature of alimony, maintenance, or support of such spouse, former spouse, or child of the debtor or such child’s parent, without regard to whether such debt is expressly so designated. Pursuant to 11 U.S.C. § 1328(a)(2), a domestic support obligation as defined in Section 5 is not dischargeable in bankruptcy cases filed under Chapters 7, 11, 12, or 13 of the Bankruptcy Code while an obligation arising under Section 15 may be dischargeable in Chapter 13 filings.
In upholding the trial court’s decision regarding Husband’s counsel fees being non-dischargeable in bankruptcy, the Appellate Division cited to In re Maddigan, 312 F.3d 589 (2d Cir. 2002) which established three requirements for non-dischargeability: (i) the debt must be owed to a spouse, former spouse, or child of the debtor; (ii) the debt must be “actually in the nature of” (as opposed to simply designated as) alimony, maintenance, or support; and (iii) the debt must have been incurred in connection with a separation agreement, divorce decree, or other order of a court of record.
Applying the factors of In re Maddigan to the facts of this case, the Appellate Division concluded that there was no question that the counsel fee award was non-dischargeable under Section 5 as it was clearly in the nature of support. Since this matter involved Husband’s attempt to preserve his ability to have a regular and frequent parenting time schedule with his children, the trial court’s ruling that the legal fees could have been utilized for the children’s support was valid as the counsel fee award was tantamount to an award of support to Husband for the benefit of the children.
Observation: Counsel fees, in this case at least, were deemed by the New Jersey court to be not dischargeable in bankruptcy. The test is whether the fees are in the nature of support. Here, the court finds that the fees awarded compensated the Husband for litigation expenses that otherwise could have been used for the support of the children. This broad definition of counsel fees as being in the nature of support means that it will be harder for litigants to utilize the bankruptcy code to avoid the payment of counsel fees assessed in a family law action.
Query however, how counsel fees would be viewed in a matter where there were no children or where the children are emancipated? How about counsel fees incurred where there are no children but an alimony obligation exists?
Parkinson v. Diamond Chemical Company, Inc. and Diamond, ___ N.J. Super. ___ (App. Div. 2021)
Issue: Did the trial court engage in a proper analysis as to whether the party seeking discovery was entitled to full disclosure of the corporate tax returns from the adverse party in connection with the claims and defenses which were in dispute?
Holding: No. Since the tax filings for corporations and other businesses receive the same presumption of confidentiality as individual tax returns, the trial court was required to apply a heightened standard to determine whether full disclosure of corporate tax returns was warranted or whether partial disclosure with redactions would suffice. The trial court did not make sufficient findings applying the heightened standard which compels a review of the following criteria: (1) whether the filings are relevant to the case; (2) whether there is a compelling need for the documents because the information is not otherwise readily obtainable from other sources; and (3) disclosure would serve a substantial purpose.
Discussion: Plaintiff (hereinafter “Parkinson”) filed a wrongful discharge cause of action against defendants (hereinafter “Diamond”) alleging that he was unlawfully terminated by Diamond because of his age, as he was 60 years old at the time of his discharge, and because of his disability, which he claimed was in violation of the New Jersey Law Against Discrimination. As part of Parkinson’s complaint, he sought both compensatory and punitive damages from Diamond.
Diamond denied many of the allegations which were raised in Parkinson’s complaint. The primary defense relied upon by Diamond was that Parkinson was let go for legitimate reasons which were non-discriminatory. In the course of discovery, Diamond further specified that Parkinson was fired in August 2017 as his performance had been unsatisfactory for some period of time and was continuing to deteriorate. Diamond contended that Parkinson provided flippant responses when questioned as to whether his declining performance was as a result of a medical issue which led the company to confirm that no such medical cause existed.
Diamond ultimately filed a counterclaim against Parkinson alleging that Parkinson caused financial harm to the company. First, Diamond contended that Parkinson allowed his plant to manufacture defective products despite the fact that a quality control machine to test the safety of those products was not operating. Diamond claimed that Parkinson’s conduct cost a customer for the company to lose an estimated $400,000.00 or more in sales. Second, Diamond asserted that Parkinson breached his contractual obligation by providing services to a Diamond competitor within several months of his termination in which he misappropriated confidential information from former co-workers.
During the course of discovery, Parkinson propounded and served discovery demands upon Diamond in which he sought various records from his former company. Most notably, Parkinson requested that Diamond produce copies of financial statements and individual and corporate income tax returns for the past three calendar or fiscal years. Diamond’s counsel repeatedly objected to this request and argued that they had no relevance or connection to the substantive claims or defenses in the lawsuit. Moreover, they asserted that the tax records were not subject to disclosure since they were presumed to be confidential and that Parkinson failed to demonstrate that there was a compelling need for the tax records based on New Jersey law.
Parkinson countered by claiming that Diamond’s tax filings and financial statements were likely to contain highly relevant information which could support his claims and refute Diamond’s counterclaims. Specifically, Parkinson argued that the tax records could prove that he was a proficient and successful plant manager at Diamond and that the claims that he caused the company to lose money during his tenure were unfounded and exaggerated.
After the parties filed applications with the trial court to address this dispute, the trial court issued an oral ruling on March 19, 2021 in which it found that there was a compelling need for Diamond to disclose its tax filings since Diamond alleged in their counterclaim that Parkinson’s actions had an adverse financial impact on the business. The trial court ordered production and on-site inspection of Diamond’s financial records for 2016 through 2019. Additionally, the trial court denied Diamond’s request for a Protective Order prohibiting discoverability of the financial records, finding that no good cause existed to grant this relief.
Diamond did not comply with the March 2021 Order and thereafter moved for a stay of the Order. The trial court denied Diamond’s application in an oral opinion on May 14, 2021 after hearing argument by the parties. However, the trial court pronounced that the heightened good cause standard when seeking to obtain a party’s financial statements or tax filings applies to individuals only, not corporations.
Following the May 2021 decision by the trial court, Diamond commenced an interlocutory appeal to overturn the trial court’s ruling as to full disclosure of the financial records. The Appellate Division granted leave to appeal. On appeal, Diamond contended that the trial court erred in assessing the discoverability of the financial records and should not have ordered their disclosure without first reviewing the materials in camera.
The Appellate Division vacated and remanded the ruling of the trial court without prejudice finding in pertinent part that the heightened standard for discoverability of financial records in New Jersey does not just apply to individual tax returns, but also to the tax returns of corporations and other businesses. The Appellate Division made clear that the landmark case which still controls in New Jersey with regard to disclosure of an opposing party’s tax records in civil cases is Ullman v Hartford Fire Ins. Co., 87 N.J. Super. 409 (App. Div. 1965). The following criteria must be met in order to warrant their disclosure: (1) the records are likely to contain information relevant to the claims or defenses in the case; (2) the requestor has a compelling need for the records which cannot be readily obtained from another source; and (3) disclosure of the records will serve a substantial purpose. In addition to these criteria, a trial judge should generally review the records in camera to assess whether full disclosure of the records should be allowed or whether partial disclosure with redacted information is appropriate.
The Appellate Division noted that the trial court erred since it should have considered Diamond’s business tax records as falling under the scope of confidentiality and therefore, an Ullman analysis should have been undertaken prior to releasing the tax returns to Parkinson. In support of its decision, the Appellate Division observed that the language of confidential provisions within the Internal Revenue Code, 26 U.S.C. 6103(a) and New Jersey’s tax statutes, N.J.S.A. 54:50-8(a) and N.J.S.A. 47:1A-1 to -13, makes no distinction between the tax returns of businesses compared to those of individual taxpayers. The Appellate Division also found there was no reported decision in any other jurisdiction which determined that business tax returns are entitled to less confidentiality than those of individual taxpayers.
Finally, the Appellate Division discerned no public policies which should erode the strong presumption of the confidentiality of business tax returns. In fact, Diamond’s business tax returns might reveal compensation paid to employees who have a privacy interest in their earnings. It may also reveal information to competitors which could be financially harmful to Diamond. For these reasons, the trial court should have examined Diamond’s tax records in camera to determine what level of confidentiality, if any, was appropriate in the context of the wrongful discharge litigation between the parties.
Observation: In divorce actions, a party’s tax returns are routinely disclosed during litigation when preparing Case Information Statements and responding to discovery demands. This is because full disclosure of a party’s finances is essential to the ability of judges in the Family Part to fairly address issues such as alimony, child support, equitable distribution, and counsel fees. But what if a party maintains only a small interest in the business entity whose tax returns are being demanded? Family law attorneys often overlook that tax returns while not privileged, are declared confidential by both federal and New Jersey statutes and are not subject to discovery and inspection without good cause. Practitioners involved in a dispute over the discovery of business tax returns should rely on Parkinson and the standards set forth in Ullman concerning the resolution of this issue. Practitioners should be prepared to argue for the redaction of tax returns to protect the privacy interests of other persons or entities. There is also the case in post-judgment matters where tax returns are requested from parties who have remarried and have filed joint returns with a new spouse (unrelated to the divorce). DeGraaff v. DeGraaf, 163 N.J. Super. 578 (App. Div. 1978).
* I wish to thank my associates, John P. Paone, III and Victoria Paone Rosa, for their assistance in the preparation of this article.
 See also Johnson v. Johnson, App. Div. No. A-3895-19 (2021) (negative inferences the court was asked to draw from the facts set forth in defendant’s motion did not present sufficient evidence from which a trier of fact could find cohabitation). As of the writing of this article, a petition for certification has been filed in the Johnson case before the New Jersey Supreme Court.
* I wish to thank my associates, John P. Paone, III and Victoria Paone Rosa, for their assistance in the preparation of this article.