Unpublished, But Not Unimportant: New 2015 Family Law Cases To Notice – By: Megan S. Murray, Esq

The Rule Regarding Use of Unpublished Opinions:

1:36-3. Unpublished Opinions

No unpublished opinion shall constitute precedent or be binding upon any court. Except for appellate opinions not approved for publication that have been reported in an authorized administrative law reporter, and except to the extent required by res judicata, collateral estoppel, the single controversy doctrine or any other similar principle of law, no unpublished opinion shall be cited by any court. No unpublished opinion shall be cited to any court by counsel unless the court and all other parties are served with a copy of the opinion and of all contrary unpublished opinions known to counsel.

Easton v. Mercer, (Ocean County, Ch. Div. July 21, 2015)

Issue: May the family court apply the doctrine of equitable fraud, as opposed to actual fraud, as a basis to annul a marriage?

Holding: Yes. The court may apply the doctrine of equitable fraud to annul a marriage. “If direct or circumstantial evidence clearly reflects that no such mutual commitment [to marry] ever existed from the inception of the marriage itself, and the parties never actually carried themselves as married partners for any significant length of time then application of the equitable fraud doctrine to rescind the marital contract and annul the marriage may be equitable and appropriate in a given case, even when the defendant had no actual intent to deceive, mislead, or defraud the plaintiff.”

Facts: The husband and wife dated from 2008 through 2010. The parties were in their mid-twenties at that time and both residing with their parents. In 2010, the husband proposed to the wife, and she accepted the proposal against the objections of her parents. The parties were issued a marriage license on October 20, 2010 and were married on November 5, 2010. According to the husband, the parties agreed to live with his parents after the wedding. However, after the ceremony, the wife continued to reside with her parents.

Approximately four (4) weeks after the wedding, the wife advised the husband that she did not want to go against her parents’ objection to the marriage and that she had “changed her mind” about the marriage. Neither party took any steps to terminate the marriage by annulment or divorce, but the parties proceeded to live completely separate lives for the next four (4) years. They never reconciled; never acquired any marital property; and never financially supported each other.

In 2014, the husband filed a complaint for annulment of the marriage based on grounds of fraud and misrepresentation. The husband also filed, alternatively, for a divorce based on irreconcilable differences. The husband contended that the wife had committed fraud as to the essentials of the marriage by bowing to parental pressure and abandoning both him and her marital vows. The husband argued that had he known the wife was going to change her mind immediately after the wedding, he would not have proceeded with the marriage in the first place. The wife responded, neither admitting or denying the husband’s claims, but advising that she would not be filing any further answer and waiving her right to do so. The husband filed default against the wife, and she never applied to vacate the default.

The court first held that the wife’s default in the annulment action did not automatically mean that the husband had the right to an annulment. Rather, the court still had to determine whether the statutory basis for granting an annulment was present. The court noted that there is no right to a “no-fault” annulment which would retroactively nullify the marriage as though it never took place.

The court held that only two (2) of the subsections of the annulment statute (N.J.S.A. 2A:34-1) could be applicable in this case. Under section (d), an annulment may be granted when there is a “fraud as to the essentials of the marriage.” Under section (f) an annulment may be “allowable under the general equity jurisdiction of the court.”

The court found that case in New Jersey clearly defines the term “fraud as to the essentials of the marriage.” Rather, each case alleging fraud as to the essentials of the marriage was decided based on the specific facts of that case. The court found that the widely varying examples as to when an annulment was granted or denied reflect a major degree of historical unpredictability as to what factual circumstances might or might not constitute fraud. However, the court found that a common thread in cases where an annulment was granted based on fraud was a finding of the defendant’s actual and intentional, knowing misrepresentation of a material fact, which under the totality of circumstances, was significant enough to be deemed “essential” to the marriage.

The court held that in the present case, the evidence did not support a finding that the wife knowingly intended to deceive the husband before marriage. Even the husband did not claim that the wife intentionally tried to trick him into marrying her. However, the court found that the wife’s immediate post-wedding change of heart led to the result that there was never any real marriage of substance between the parties at any time.

The court held that the annulment statute does not define or limit the term fraud to only actual fraud, and in other contexts, New Jersey courts have recognized equitable fraud. Moreover, the catch-all subsection of the annulment statute permits the court to grant annulments when factually equitable to do so. The court noted that equitable fraud is different than actual fraud, as there is no requirement that the defendant have a purpose to deceive the plaintiff. Rather, the moving party must only show falsehood of a material fact, along with reasonable and detrimental reliance by that party on the falsehood. The court held that equitable fraud permits a court of equity to act in the name of fairness and to provide relief an innocent plaintiff.

The court held that “if direct or circumstantial evidence clearly reflects that no such mutual commitment ever existed from the inception of the marriage itself, and the parties never actually carried themselves as married partners for any significant length of time, then application of the equitable fraud doctrine to rescind the marital contract and annul the marriage may be equitable and appropriate in a given case, even when the defendant had no actual intent to deceive, mislead, or defraud the plaintiff.” The court went on to hold that in the present case, although the wife never intended to deceive the husband, an objectively reasonable review of the facts confirmed that she never truly had a genuine commitment to a marital relationship with the husband. The court held that the wife was in her mid-twenties and did not need her parents’ permission to remain in the marriage. It was her decision not to commit to the marriage, and her choice not to do so confirmed that she was never fully committed to the marriage. The court noted that the wife invited no guests of her own to the parties’ wedding; refused to live with the husband; and took no steps to further their marriage vows.

The court granted the husband’s request for annulment based on equitable fraud, holding that subsection (d) of the annulment statute permits annulment based on “equitable” not just “actual fraud” and that subsection (f) allows for the granting of annulments based on the general equity powers of the courts. However, the court went on to note that the decision would have been different had the parties gone on to ratify the marriage in some way, underscoring that the decision was not intended to suggest that annulments should be granted in every case where the parties are not strongly committed to each other at the time of the marriage ceremony. Moreover, in considering to whether to annul a marriage, the court also must consider whether the annulment would be contrary to public policy—for instance, if the marriage had resulted in children; or long-established financial dependency.

Finally the court held that the husband’s 4-year delay in filing for an annulment did not bar his right to relief. The court held that while applications for annulment should be made swiftly, given the fact that there were no intervening acts by either party during the 4-year gap to ratify the marriage, the delay did not affect the analysis.

Skinner v. Cole (App. Div. 2015): Decided 10/1/2015

Issue: Did the trial court err by transferring physical custody of the parties’ 13 year old son from the mother to the father without a plenary hearing?

Holding: Yes. As the party’s certifications presented significant disputes in fact, the court should have scheduled a plenary hearing and not decided this matter in a summary fashion.

Issue: Do the separate set of procedures established for “FD” matters versus “FM” in violate the equal protection principles set forth in Article I, paragraph one of the New Jersey Constitution by creating two separate, unequal classes of litigants addressing the same issues regarding children?

Holding: The issue constitutionality was not addressed, as the case was remanded for a plenary hearing based on the trial court’s error in deciding the matter in a summary fashion.

Facts: The mother and father were never married. They had a son together who was born in 2000. The mother was his primary caregiver since birth, and when the son was 22 months old, the mother relocated with him to Pennsylvania, although New Jersey retained jurisdiction of the matter. In June 2014, the father filed an “FD” complaint, seeking custody of the parties’ son. In a certification in support of his application, the father contended that their son wanted to live with him; that the mother’s relatives lived in her home and they used drugs; that the mother returned home late from work and ignored the son; and that the son did not like the school in which he was enrolled, as he was frequently assaulted by other students and was not academically challenged. In her responsive certification, the mother claimed that she had a good relationship with the son; that the father disparaged the mother to the son; that the father failed to test the son’s glucose levels in connection with a medical condition; and that there was not any drug use by relatives in her house.

Following oral argument, the judge interviewed the son, who informed the court that he wanted to live with his father; that he suspected his mother’s relatives of using drugs; and that he engaged in mostly solitary activities when he was at his mother’s home. After interviewing the child, the judge entered an order transferring physical custody of the son from the mother to the father. The mother appealed, arguing 1) that the court should have held a plenary hearing before deciding this matter and 2) that Directive 08-11, establishing procedures for FD matters, violates the equal protection principles of the New Jersey Constitution by creating “two separate, unequal classes of litigants addressing the same issues regarding children.”

The Appellate Division reversed and remanded the trial court’s decision. The Appellate Division held that the multiple disputes in fact in the party’s moving papers required that the trial court hold a plenary hearing to resolve the issue of custody. The Appellate Division did not take a position regarding the mother’s argument that “FD” procedures violate the New Jersey constitution. The Appellate Division held that it need not reach a conclusion as to this issue, given the fact that the case was being remanded for a plenary hearing and would not be decided in a summary fashion. The Appellate Division further noted that the Rules of Court allow “FD” judges to place cases that cannot be decided in a summary fashion on a complex case management track.

E.C. v. R.H. (Ocean County Chan. Div. August 11, 2015):

Issue: To what extent should the court, in connection with a final hearing, allow a party to introduce texts, emails, social media messages, or audio/visual evidence directly from his or her cellphone?

Holding: A litigant optimally should be advised in advance that if he or she wishes to introduce cellphone evidence in the hearing, such evidence should optimally be made available in tangible and organized, duplicate hard copy form for use as trial as follows:

  1. Emails and texts: Printed on Paper
  2. Social media messages: Printed on Paper
  3. Photographs: Printed on Paper
  4. Audio Recording: Duplicated on C.D. or cassette
  5. Video Recording: Duplicated on DVD

Notwithstanding the above, the court held that in cases where a litigant is in such dire financial circumstances that he or she is unable to afford to provide cellphone evidence in more tangible form, the court may potentially dispense with the preference for tangible copies of same and may instead proceed as best as possible under the circumstances by viewing the evidence directly on the cellphone and describing same in the record.

Facts: The parties were dating partners, and the plaintiff obtained a Temporary Restraining Order against the defendant based on harassment. Both parties represented themselves pro se in connection with the final hearing.

At the final hearing, the plaintiff sought to introduce electronically stored communication directly from her cellphone, including multiple emails from the defendant to the plaintiff, which the plaintiff claimed were harassing. The court noted that introducing evidence in this matter poses problems. First, the specific image cannot be preserved for the record, unless there is also a hardcopy printout of the image as well. Failure to preserve the image can create difficulties in maintaining the record for further review at the trial or appellate level. Second, a cellphone’s small size allows for only small portions of a document to be viewable at one time, creating reading challenges and rendering it difficult for the trier of fact to analyze and consider the totality of the document. Third, due to the general layout of most courtrooms, it is extremely impractical for the court and both parties to all view evidence on a cellphone at the same time, as compared to viewing duplicate hard copy printouts of the same document. This situation is even more problematic in a domestic violence case, where the parties cannot be in close contact with each other to review evidence together. Fourth, it a party orally reads an electronic communication into the record, there is no guarantee that the oral recitation is accurate. The process of oral recitation can also be extremely time-consuming. Fifth, with regard to voicemail evidence stored on cell phones, it can be difficult to hear exact words on the audio recording. A compact disc or transcript of the recording would allow for a clear record to be preserved. Sixth, if the court wishes to review the electronic communications, after the close of testimony, the court is unable to do so without hardcopy forms.

Notwithstanding the practical problems with regard to electronic communication, the court recognized its potential relevance. The court noted that the “ability to quickly and effortlessly send electronic messages logically increases the prevalence of harassment,” resulting in electronic communications now being a frequent basis for alleged harassment claims in domestic violence proceedings. The court also held that electronically stored evidence may be significant in reflecting the nature of the prior relationship between the parties in a domestic violence case. Given the fact that the plaintiff alleged ongoing harassment through unwanted and threatening messages, the court held that the substance of the electronic communications between the parties could be relevant in casting light upon the parties’ actual relationship and the veracity of their respective positions.

The court held that a litigant optimally should be advised in advance that if he or she wishes to introduce cellphone evidence in the hearing, such evidence should be made available in tangible and organized, duplicate hard copy form for use as trial as follows:

  1. Emails and texts: Printed on Paper
  2. Social media messages: Printed on Paper
  3. Photographs: Printed on Paper
  4. Audio Recording: Duplicated on C.D. or cassette
  5. Video Recording: Duplicated on DVD

Although the preferable manner of introducing evidence of electronic communications should be in hard form as set forth above, the court held that in cases where a litigant is in such dire financial circumstances that he or she is unable to afford to provide cellphone evidence in more tangible form, the court may potentially dispense with the preference for tangible copies of same and may instead proceed as best as possible under the circumstances by viewing the evidence directly on the cellphone and describing same in the record.

In this case, the court found that it was fair and appropriate to adjourn the domestic violence hearing for one week, with both parties being instructed that he or she must produce hard copies (and duplicates) of all electronic communications if that party wished to introduce same at trial.

Court v. Court (App. Div. 2015) Decided November 6, 2015

Issue: Did the trial court err in failing to analyze the factors under the recently modified alimony statute with regard to the defendant’s request to terminate alimony based on reasonable retirement?

Holding: Yes. The trial court was required to make findings of fact, based on the factors set forth a N.J.S.A. 2A:34-23(j)(1) to reflect why it determined that the plaintiff had overcome the presumption that alimony should be terminated based on the defendant reaching reasonable retirement age as defined by the statute.

Issue: Can alimony arrears which accrue prior to alimony being terminated be retroactively reduced or vacated?

Holding: No. Pursuant to N.J.S.A. 2A:34-23(j)(1), as amended in September 2014, “any [alimony] arrearages that have accrued prior to [alimony] termination shall not be vacated or annulled.”

Facts: The parties were married in 1981, and a Judgment of Divorce was entered in 2003. Pursuant to the Judgment of Divorce, the defendant was ordered to pay $1,000.00 per week in alimony to the plaintiff. In July 2013, the defendant filed a motion to reduce his alimony obligation based on the reduction in his income, and his alimony obligation was reduced to $500.00 per week, plus $250.00 per week toward accumulated arrears. In August 2014, the defendant retired because of the economic downturn in the industry in which he worked and deterioration in his health. The defendant was 72 years of age at that time and earning a total of $27,010.00 annually from Social Security. The defendant filed an application with the court to terminate his alimony obligation.

The trial court found that the defendant had provided sufficient proof of his health problems to confirm that he was unable to be gainfully employed. The court also found that the defendant’s Social Security income was insufficient to cover his bills, his alimony obligation and his arrears payments. However, the trial court agreed with the plaintiff that the defendant could potentially find work in the future and earn income to maintain his current alimony obligation. The trial court did not terminate the defendant’s alimony obligation but reduced his obligation to $400.00 per week, allocated as $50.00 per week towards alimony and $350.00 per week towards arrears.

The Appellate Division reversed and remanded the trial court. The Appellate Division held that the trial court was required to provide specific findings of fact to justify its decision not to terminate the defendant’s alimony obligation in light of the rebuttable presumption under N.J.S.A. 2A:34-23(j)(1) that alimony shall be terminated “upon the obligor spouse or partner attaining full retirement age.” The Appellate Division remanded the case to the trial court to apply the standard following retirement under N.J.S.A. 2A:34-23(j)(i). The Appellate Division directed that “[t]he court may continue alimony only if the plaintiff presents proof to rebut this presumption [of termination] upon consideration of the [factors set forth under N.J.S.A. 2A:34-23(j)(1)(a)-(k).]

The Appellate Division made clear that the trial court could not vacate or reduce the defendant’s alimony arrears regardless of whether alimony was terminated. Rather, pursuant to N.J.S.A. 2A:34-23(j)(1), “any arrearages that have accrued prior to [alimony] termination shall not be vacated or annulled.” However, the court held that the trial court must fix an arrearage payment that comports with the defendant’s ability to pay.

Mantle v. Mantle: (Ocean County Chan. Div. August 11, 2015)

Issue: Is an agreement between parties to a consent order to ban contact between the child and a parent’s new paramour enforceable?

Holding: No. An indefinite ban on contact between the child and the parent’s new paramour in a consent order is unenforceable. Instead, contact between the child and the parent’s new love interest should be increased gradually, in a manner that considers the circumstances and is tailored to the child’s needs.

Facts: The parties entered into a consent order in November 2014, wherein they agreed to an indefinite restriction on new girlfriends or boyfriends having contact with the party’s son during either party’s parenting time. The child’s mother filed a motion in January 2015 to enforce the restraint against the father, who was allowing his new girlfriend to be around the parties’ son. The trial court held the consent order to be unenforceable. The trial court held that such an open-ended restriction is unenforceable without any evidence of inappropriate behavior by the girlfriend toward the child.

The trial court noted that these types of restraints between a child and a parent’s paramour are known as Devita restraints, based on the 1976 Appellate Division ruling in Devita v. Devita. In Devita, the Appellate Division upheld a ruling barring overnight visits by the father’s girlfriend when the couple’s children were visiting him. The Devita court found that a “substantial body of the community” shared the mother’s view that their children’s moral welfare could be harmed by exposure to such visits. In the present case, the trial court held that the Devita ruling may not be “socially viable in 2015” and held that it’s “highly debatable” whether a substantial portion of the community would take the same view as expressed in Devita. The trial judge stated:

Sociologically speaking, 1976 was a million years ago. Given the overwhelming number of couples from all walks of life who presently live together full-time without the benefit of marriage, the landscape has changed drastically since the long gone days of the bicentennial.

The court held that, going forward, in evaluating a DeVita restraint, a court should consider how long the parties have been living apart; the age of the parties’ child; how long the parent and new partner have been dating; whether the new partner is already known to the child; and whether the child has a psychiatric, psychological or emotional issue that might require special consideration. The court further held that a court may grant a blanket restriction against contact with a dating partner who poses a threat through inappropriate actions or comments.

The court held that the duration of any restraints against contact between a child and the parent’s paramour should relate to the best interest of a child and that a never-ending restriction on a new dating partner’s contact with the child is “an invitation for potential legal mischief….” The court held that in the present case, where the child was 6 years old; the parties had been separated for 5 months; and the child was familiar with the father’s girlfriend, the best interests of the child supported a “gentle and logical progression, rather than a sudden and abrupt one.” The judge called for a 6-month moratorium on exposing the child to a new dating partner, beginning with the couple’s separation in October 2014. After 6 months, but before 12 months, the parties could then introduce the child to new dating partners, but that person would not be permitted to stay overnight when the child was present. At 12 months, the parties were free to have a dating partner stay overnight when the child was present.

R.C. V. R.W. (Ocean County Chancery Division, July 20, 2015)

Issue: What happens when a plaintiff seeks a final restraining order against a defendant for conduct which arises from the plaintiff’s own violent provocation?

Holding: A plaintiff’s violent provocation is a relevant factor for the court to consider in whether to grant or deny a final restraining order against a defendant under the two-prong test of Silver v. Silver, particularly when (a) defendant’s reaction to plaintiff’s violent provocation was immediate, instinctive and impulsive rather than planned and premeditated; (b) defendant’s reaction was proportionately no more violent than the actions of plaintiff whose own violence toward defendant initiated and provoked the altercation; (c) there is insufficient evidence that defendant caused plaintiff substantial harm, and (d) defendant has no significant history of prior violence against plaintiff.

Facts: The parties were in a dating relationship for four (4) years, during two (2) of which they resided together in an apartment. The parties had two (2) children, for which the defendant was the primary caregiver. The parties had two (2) vehicles at their home, both of which were titled to the plaintiff. The plaintiff drove the Nissan, and the defendant drove the Buick, and both parties contributed to the purchase price of the Buick.

By June 2015, the parties’ relationship had deteriorated, and the defendant wanted the plaintiff to move out of their apartment. In an effort to force the defendant to leave, the plaintiff admittedly terminated the electric service, rendering the premises virtually uninhabitable. As a result, the defendant moved the children to her mother’s home. The defendant took the Buick with her, as well as the cellphone she historically used (titled to the plaintiff) and a PlayStation, which the defendant originally purchased for the plaintiff but which became a source of recreation for the children. The plaintiff also relocated from the apartment and moved in with his cousin.

For a period of time, the plaintiff exercised parenting time with the children on specified weekends, returning the children to the defendant’s residence at the end of his parenting time. During a Sunday drop off in July, the plaintiff remained at the defendant’s residence and confronted her about being involved with another man. The plaintiff grabbed the defendant’s cellphone from her hands and began running away with the phone, while rummaging through the phone’s contents, asserting his right to do so because the cellphone was titled in his name. The defendant ultimately retrieved the cellphone but only after the plaintiff had already reviewed her information and discovered that she had been having ongoing communications with another man.

The plaintiff called the defendant a whore. He then opened the trunk to the Buick and, upon seeing the PlayStation inside, advised the defendant that she could no longer keep it for the children’s use. When the defendant objected to returning the PlayStation, the plaintiff advised the defendant that he no longer consented to her driving the Buick—which was the defendant’s only source of transportation. The plaintiff then picked up a brick from the ground and intentionally threw it through the Buick’s rear windshield, shattering the entire glass window into pieces. In response, the defendant impulsively picked up a smaller brick and threw it, along with the PlayStation, against the plaintiff’s Nissan, causing damage to the body of the car. Thereafter, the plaintiff picked up more bricks and threw them through the Buick’s closed side window and the front windshield, rendering the vehicle non-drivable. In response, the defendant began yelling frantically to the plaintiff that she no longer had a vehicle to drive.

Although the plaintiff initiated the brick throwing, the plaintiff proceeded to file a domestic violence complaint against the defendant for criminal mischief in damaging the Nissan. The plaintiff took the position that his damage to the Buick was legally permissible, as the Buick was titled in his name; while, the defendant’s damage to the Nissan was not permissible, as the vehicle was titled to the plaintiff. In addition to a restraining order, the plaintiff also sought custody of the children.

In his complaint, the plaintiff stated that there was no prior physical violence between the parties but that the parties’ history involved “verbal arguments throughout the dating relationship.” During trial, the plaintiff also testified that there was no real history of physical violence by the defendant. Moreover, the plaintiff testified that he was not presently in fear of the defendant. The defendant testified that she threw the brick and the PlayStation as an impulsive reaction to the plaintiff’s actions with regard to the Buick. The defendant expressed sincere remorse for her actions but testified that she was not a violent person and had no history of being violent.

The court denied the plaintiff’s request for a final restraining order. The court found that it was required to look at the totality of circumstances in the case. The court held that while the defendant’s conduct may technically meet the definition of criminal mischief—“ purposely or knowingly [damaging] tangible property of another”— the act itself could not be looked at in a vacuum. The court cited Corrente v. Corrente, 281 N.J. Super. 243 (App. Div. 1995) and Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006) for the proposition that a single act of domestic violence does not necessarily and automatically mandate the entry of a final restraining order. Rather, the court must also determine whether entry of a restraining order is necessary to prevent ongoing violence.

The court found that in this case, the plaintiff violently provoked the defendant into the responsive actions at issue. The court held that while non-violent provocation is generally not an acceptable defense to, or justification for, domestic violence, the plaintiff’s violent provocation of defendant was a relevant, logical and fair consideration for the court. The court held that the plaintiff’s violent acts of provocation stood in complete denigration of the very principles and protective policies that the Domestic Violence Act was designed and enacted to support.

The court held that a plaintiff’s violent provocation of a defendant is relevant when the evidence reflects that (a) defendant’s reaction was immediate, instinctive and impulsive rather than planned and premeditated; (b) defendant’s responsive actions were objectively no more violent than plaintiff’s own violence toward defendant which instigated defendant’s response in the first place; (c) plaintiff suffered no substantial harm, and (d) defendant has no history of prior violence against the plaintiff. The court held that these factors can, in some cases, potentially mitigate a finding or conclusion under Silver that both prongs of the Silver test have been met.

The court went on to hold that in considering the impact of a plaintiff’s violent provocation in a domestic violence case, a court of equity may consider multiple factors, including but not limited to the following:

  1. What was the specific nature and degree of the plaintiff’s violent provocation?
  2. Does the evidence reflect that defendant’s response was premeditated, calculated and sustained, or rather, an instinctive and impulsive reaction to plaintiff’s violence with little or no time for reasonable thought and contemplation?
  3. Was defendant’s response out of proportion to plaintiff’s initial violent provocation, i.e., significantly greater than plaintiff’s own actions toward defendant?
  4. Did defendant’s action result in substantial harm to plaintiff?
  5. Is there any significant prior history of violence by defendant towards plaintiff?

The court found that in this case, an analysis of the factors above all supported a denial of a final restraining order against the defendant. The court found: 1) that the plaintiff violent provocation of the defendant was stark and graphic, in that he viciously rendered the defendant’s sole source of transportation unsafe and non-drivable in a very sudden and violent manner; 2) the defendant’s response was not premeditated, rather it was a knee-jerk reply to what she had witnessed the plaintiff do to the Buick; 3) the defendant’s actions were proportionately no more wrongful than the plaintiff’s aggressive actions towards defendant; 4) while defendant’s action resulted in body damage to the Nissan, the situation could be repaired, and the defendant caused no other injury to the plaintiff; 5) there was no history of violence on the part of the defendant.

The court held that the plaintiff had provided insufficient evidence to support a finding that the defendant posed any genuine ongoing risk of violence to him. The plaintiff’s request for entry of a final restraining order against the defendant was denied.

The court made the following additional findings:

  1. The fact that a party maintains a cellphone in his or her name does not give that party the right to grab the cellphone or confiscate the cellphone from the habitual user of the phone, nor does it give the owner the right to intrude upon the privacy rights of the user by reviewing information on the phone.
  2. Regardless of whose name personal property is in, if the personal property is in another party’s long-term possession, the titled owner of the property does not have the right to damage that property and doing so could constitute harassment.

L.H. v. D.H. (Ocean County Chancery Division, June 5, 2015)

Issue: When one party retains ownership of the marital home under a settlement agreement but then fails to remove the other party’s name from the mortgage in violation of the Divorce Settlement Agreement, what are the rights of the aggrieved party?

Holding: When a party in possession of the former marital home fails to refinance the mortgage so as to remove the ex-spouse’s name from the mortgage note, in violation of court order, the court may grant equitable relief, including but not limited to: a) granting the aggrieved ex-spouse power of attorney to list and sell the home through a bona fide realtor at a recommended price, and b) removal of the defaulting party from the home, particularly if he or she obstructs the realtor’s access to the home or any other material aspect of sale.

Facts: The parties were divorced in 2012, following a 12 year marriage with no children. Title to the marital home was in joint names, and the marital home was secured by a mortgage in joint names. Pursuant to the parties’ property settlement agreement, they agreed as follows:

…it is the intent of the parties that the Wife shall maintain and keep the marital home…Husband shall execute a Quitclaim Deed transferring his interest in the former marital home to Wife, and Husband’s attorney shall hold same in escrow pending Wife’s refinance of the mortgage in her name. Wife will have nine (9) months from the date of this agreement to obtain a refinance of the mortgage in her name. Upon Wife’s refinance, she shall promptly receive the same Quitclaim deed…

The property settlement agreement set forth an agreed upon value for the home of $230,000.00 and an outstanding mortgage of $204,000.00. The parties agreed that the husband’s share of the equity in the home had been satisfied via offset from other assets. The agreement further provided that “failure on the part of either party to insist upon the strict performance of any of the provisions of this agreement shall in no way constitute a waiver of any subsequent default of the same or similar nature.” Moreover, the agreement provided that “a modification of this agreement is valid only if in writing and executed and acknowledged by the parties.”

The plaintiff wife failed to refinance the mortgage pursuant to the terms of the property settlement agreement, and the defendant husband remained on the mortgage for 3 years from 2012 through 2015. The plaintiff paid the mortgage during this time but was late on occasion. When the defendant sought to obtain a mortgage for a home of his own, he learned that his credit score and his ability to obtain a mortgage were impaired by the fact that his name was on the mortgage against the former marital home. As such, the defendant filed a motion to enforce the property settlement agreement; to compel the sale of the marital home; to appoint defendant as an attorney-in-fact to market and sell the home the home through a realtor; and to remove the plaintiff from the home pending sale if necessary.

The court found that under the doctrine of in pari materia, the plaintiff’s right to own and possess the home was not independent of, but intertwined, with the plaintiff’s obligation under the property settlement agreement to refinance the mortgage so as to remove the defendant’s name from the ongoing liability.

The court took judicial notice that a positive credit rating and score is one of the most valuable and important assets a party may presently possess—giving an individual with relatively limited assets or income the ability to make purchases he or she could otherwise not afford. The court noted that a negative credit rating can have a detrimental and even disastrous effect on a party’s financial health, often crippling the parties’ ability to obtain a loan; to purchase a home, car or other essentials. Moreover, the court noted that a positive credit rating may be particularly important following divorce, where there is often a necessity for one to economically rebuild and restructure his or her life. The court explained the problem that occurs in divorce where a settlement agreement may assign joint debt to one party, but if that party does not pay the debt, it can still cause damage to the other party’s credit rating, as the debt remains joint and severable from the creditor’s viewpoint.

The court noted that in the present case, even if the plaintiff had made all mortgage payments in a timely manner, she was still hurting the defendant’s credit rating, as he remained on a substantial mortgage, thus impacting upon the defendant’s debt to asset ratio. The court held that the plaintiff was in direct violation of the property settlement agreement for her failure to refinance the mortgage to remove the defendant’s name from the mortgage.

The court held that because the Family Part is a court of equity, under certain circumstances, a court could grant a party relief if that party tried to refinance property in good faith but was unable to do so for reasons beyond his or her own control—such as illness or disability. In that event, the court could grant equitable remedies other than forced sale of the home, such as granting additional time to refinance. The court held that in the present case, no such circumstances exist. Moreover, the court held while a court of equity may decline to enforce an agreement when such enforcement would yield an unfair or inequitable result, that was not the case here.

The court held that because the plaintiff had failed to refinance the home to remove the defendant from the mortgage, the marital home must be sold. The court held that if the plaintiff failed to cooperate in listing the home for sale, the court could appoint the defendant as limited power of attorney to execute the listing agreement. The court further ordered that the parties were bound, outside of mutual agreement by the parties otherwise, to abide by the realtor’s recommendation as to a listing price for the home. Pending sale, the court held that the plaintiff was required to make all mortgage payments pending sale. Moreover, the court held that if the plaintiff was failing to cooperate with the sale or obstructing the sale in any way, the court could order the removal of the plaintiff from the home pending sale.