UNPUBLISHED, BUT NOT UNIMPORTANT: NEW 2016 FAMILY LAW CASES TO NOTICE By: Megan S. Murray, Esq.

The Rule Regarding Use of Unpublished Opinions: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 Unpublished Opinions

No unpublished opinion shall constitute precedent or be binding upon any court.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by res judicata, collateral estoppel, the single controversy doctrine or any other similar principle of law, no unpublished opinion shall be cited by any court. No unpublished opinion shall be cited to any court by counsel unless the court and all other parties are served with a copy of the opinion and of all contrary unpublished opinions known to counsel.

 

Little v. Little, (App. Div. March 15, 2016):

Issue:  Should an arbitration award be vacated as against public policy because it failed to set forth findings of fact and conclusions of law, thus preventing a determination as to whether the award was procured by corruption, fraud or other undue means?

Holding:  No.  If the arbitration agreement does not require the arbitrator to make specific factual findings or to follow particular procedures, the arbitrator is free to make an award in a manner consistent with the Arbitration Act [N.J.S.A. 2A:23B-4), which requires only that the arbitrator “make a record of an award.”

Issue:  Should the arbitration award be vacated because the arbitrator considered a letter which was produced after the close of discovery in the superior court action?

Holding:  No.  Arbitrators are not bound by the rules of evidence, and may determine the admissibility, relevance and materiality and weight of any evidence.  The arbitrator was not bound by the discovery end dates set in the superior court action.

Additional Points to Consider:

  • The Appellate Division points out that judicial review of an arbitration award is narrow. Appeals of an arbitration award are far more limited than appeals to the Appellate Division after a trial in Superior Court.  Counsel must ensure that his or her client understands the limited right to set aside; vacate or appeal an arbitration award.
  • Under the Uniform Arbitration Act at J.S.A. 2A:23B-23(a), arbitration awards may only be vacated if:
    • The award was procured by corruption, fraud or other undue means;
    • The court finds evident partiality by an arbitrator; corruption by an arbitrator; or misconduct by an arbitrator prejudicing the rights of a party to the arbitration proceedings;
    • An arbitrator refused to postpone the hearing upon showing of sufficient cause for postponement, refused to consider evidence material to the controversy or otherwise conducted the hearing contrary to section 10 of this act, so as to substantially prejudice the rights of a party to the arbitration proceeding;
    • An arbitrator exceeded the arbitrator’s powers;
    • There was no agreement to arbitrate, unless the person participated in the arbitration proceeding without raising the objection pursuant to subjection c. of section 15 of this act no later than the beginning of the arbitration hearing; or
    • The arbitration was conducted without proper notice of the initiation of an arbitration as required in section 9 of this act as so as to substantially prejudice the rights of a party to the arbitration proceeding.
  • As the Appellate Division pointed out, if the arbitration agreement itself does not require certain procedures of the arbitrator, the arbitrator has great leeway under the Arbitration Act as to conducting the arbitration proceeding. To be sure, the Arbitration Act provides that the “arbitrator may conduct an arbitration in any manner that the arbitrator considers appropriate, with the goal of disposing of the matter fairly and expeditiously.”  If counsel wishes for specific protocol to be followed by the arbitrator, it should be included in the agreement to arbitrate.
  • The arbitrator is not bound by the Rules of Evidence unless the agreement to arbitrate provides otherwise. This means that one will likely be unsuccessful in attempting to set aside an award based on the arbitrator’s reliance on hearsay or other evidence that might be inadmissible in superior court.
  • The Rules of Court at Appendix XXIX-B and XXIX-C have template “Agreements to Arbitrate” under both the Uniform Arbitration Act and the Alternative Procedure for Dispute Resolution Act which counsel should utilize as guides in any case where the parties have agreed to attend arbitration.

Kayahan v. Kayahan, (Chancery Division, Ocean County, December 28, 2015)

Issue:  May a non-custodial parent pay part of a mandatory weekly child support obligation directly to an unemancipated child who is over 18 years old, rather than to the custodial parent?

Holding:  Yes.  When an emancipated child is over 18 years old, a court may permit the non-custodial parent to pay part of his or her child support obligation directly to the child under certain parameters.  Such conditions may include the child’s utilization of the funds only for specifically earmarked and pre-approved expenses, along with an ongoing requirement that the child provide documented accountings of use of the funds to both parents.

Issue:  What factors should the court consider in determining whether to permit payment of part of a child support obligation directly to the child?

Holding:  In determining whether to permit payment of part of a child support obligation directly to the child, the court may consider, among other factors: (a) evidence of the child’s maturity and history of responsibility; (b) the non-custodial parent’s history of paying timely child support; and (c) whether there will be sufficient remaining child support funds for the custodial parent to continue reasonably maintaining the child’s primary home without significant economic hardship.  If such hardship will likely result, the court may decline to modify the child support arrangement whereby the non-custodial parent pays the child support directly to the custodial parent.

Additional Points to Consider:

  • While the court found that the payment of child support directly to a child could be permissible in certain cases, the court did not allow for the payment directly to the child in this particular case because it might put the mother in a position where she could not afford to maintain her residence—the primary residence of the child. This suggests, however, that the mother is utilizing monies that would otherwise go toward the child’s variable expenses, such as food and clothing, toward shelter expenses.  Is this appropriate?  Is it fair for the amount of money the child receives for food and other necessities to be decreased in an effort to ensure that payments to maintain the primary residence can be made?  What if the mother could readily afford a less expensive home?
  • The concept that in certain cases child support could be directly paid to the child was first introduced in Jacoby v. Jacoby, 427 J. Super. 109 (App. Div. 2012) wherein the court held that in certain cases it “may be more appropriate for a parent to provide direct payments to the student for some of the child’s support needs rather than to the other parent.” The court, in this case, also limited its holding to cases where the child is over 18 years of age.  Could there ever be an appropriate situation for direct payment of child support to the child even in cases where the child is still a minor (noting that the child would likely be required to have a parent as a joint signatory on the account into which child support is deposited until he or she reaches the age of majority).  The trial court in this case notes that a direct payment arrangement “might be inappropriate for a child who is under eighteen and a legal minor,” but does not dismiss such an arrangement as an impossibility.
  • The court held that in cases where the non-custodial parent has a record that reflects a high risk of ongoing delinquency with regard to timely payment, the case is likely to be an inappropriate candidate for a direct-pay-to-child arrangement.
  • The court also suggested a potential hybrid approach for the payment of child support whereby the non-custodial parent would pay child support directly to the custodial parent, but the custodial parent would be required to deposit a designated portion of each support check into a separate bank account in the child’s name.

J.C. v. A.C. (Chancery Division, Ocean County, October 7, 2016)

Issue:  Does a non-custodial parent have an obligation to pay child support or other financial maintenance for a child who has just graduated college with a bachelor’s degree, and has now elected to attend graduate school.

Holding #1:  Under newly enacted N.J.S.A. 2A:17-56.67, which formally goes into effect on February 1, 2017, a parent’s obligation to pay child support terminates by operation of law when a child reaches 19 years of age, unless a court orders an extension of payment which shall not extend beyond the date the child reaches 23 years of age.

Holding #2:  Under the terms of N.J.S.A. 2A:17-56.67, the New Jersey Legislature has provided that a child over 23 may still possibly seek a court order requiring the payment of other forms of financial maintenance or reimbursement from a parent.  Nothing in this new legislation, however, reflects a legislative intent that a court must grant such relief, or refrain from emancipating a child who is 23 years of age and voluntarily decides to attend graduate school after earning a college degree.  Nor does New Jersey prior case law, including Newburgh v. Arrigo, automatically require any parent to support or financially maintain an adult child who chooses to attend graduate school.  New Jersey law does not prohibit the emancipation of a graduate school student who either is, or could be, dependently functioning beyond the sphere of parental influence, and the sole fact that a college graduate decides to enroll in graduate school is insufficient by itself to automatically create or extend a parent’s obligation to financially support or maintain the child.

Holding #3:  An analysis of whether a non-custodial parent must continue financially supporting or maintaining a child over 18 reasonably differs when a child is an undergraduate student as opposed to a graduate student, who is generally older with a college degree, and who may logically be more expected to move outside the “sphere of parental influence” and begin proceeding with his or her life as an independent and self-reliant adult.

Holding #4:  If a 23 year old child college graduate with a bachelor’s degree elects to continue his or her education pursuits through graduate school, and asserts either directly or through a parent that he or she should not be emancipated and that the other parent should still be responsible for financial maintenance of any sort, then it is the applicant’s burden of proof and persuasion to demonstrate why an order for such maintenance, as opposed to independence, is appropriate, necessary and equitable under the circumstances.

Additional Points to Consider:

  • In light of J.S.A. 2A:17-56.67, can parties contract for the payment of child support on behalf of a child beyond the age of 23? What about the payment of graduate school expenses?  In this case, the court noted that the parties’ agreement specifically referenced only the payment of undergraduate expenses, not graduate school expenses.
  • What if the parties entered into an agreement prior to the effective date (i.e., February 1, 2017) of J.S.A. 2A:17-56.67? If the parties’ agreement as to the termination of child support calls for child support to potentially be paid beyond the child’s 23rd birthday, does the statute prevail over the agreement?  What if the agreement calls for payment of child support through the child’s graduation from undergraduate school, but that graduation takes place after the child turns 23 years of age?
  • Could exceptional circumstances, calling for financial maintenance for a child to be paid beyond the age of 23, include the parents bargained for agreement, wherein they mutually agree that child support should continue beyond the age of 23 in consideration for the terms of their overall settlement agreement?
  • In this case, the child graduated with an undergraduate degree in accounting. If the child had graduated with a less practical degree in a field where finding immediate employment could present more difficulties, would this have impacted upon the court’s decision?
  • As child support terminates by operation of law when a child turns 23, if the parties wish to enter into an agreement calling for the payment of support on behalf of the child beyond the age of 23, they should be careful to label same “financial maintenance” and provide for the exceptional circumstances warranting the extension of support beyond the age of 23. Judge Jones holds that even in such circumstances where the parties have bargained for child support to continue beyond the age of 23, “there would be a logical need to consider what if any present economic ability that parent actually has to contribute to graduate school or the child’s ancillary financial expenses.”
  • Judge Jones aptly points out that, as a practical matter, a child in undergraduate school cannot be viewed through the same lens as a child in graduate school. The graduate student already has a college degree and therefore is generally and logically more able to become financially independent, even in a challenging economy.
  • This case provides a good history of the exploration of the limited case law as to a parent’s obligation to contribute toward graduate school costs and/or support of a child in graduate school.
  • A footnote in this case provides further insight as to the definition of “fulltime” student—noting that for student aid purposes, a fulltime student is defined as a student enrolled in 12 hours of courses per academic term. However, many universities required students to obtain 120-128 hours of credits to graduate—such that even if the student is technically enrolled on a fulltime basis, he or she will not graduate based on enrollment in only 12 credit hours per semester.
  • The court notes several questions that should be considered by the court in determining whether a parent has met his or her burden to require the other parent to contribute to the graduate school costs/maintenance of a child:
    • Why can the college graduate not utilize his or her college degree to obtain a full time job to be self-supporting outside of the parental “sphere of influence”?
    • Given that many people work and seek graduate degrees at the same time by going to graduate school at night or online, why are such options not available to this particular student?
    • If the proposed graduate school program is so comprehensive and intense as to essentially make concurrent employment impractical or impossible, and if the adult student therefore needs additional money for the expenses, what if any attempts have there been on his or her part to obtain additional funds as an adult through other sources besides one’s parents, such as loans?
    • Why can the student not fund his or her own graduate school aspirations through a combination of working and student aid?
    • Why is it fair and equitable for the graduate student’s parent(s), as opposed to the student, to be held continuously responsible on a court-ordered basis for financial maintenance of the student, particularly if the parents have already supported the child for years after his or her 18th birthday, and/or helped fund tuition during the student’s undergraduate years while he or she pursued and obtained a college degree?

 

Ryan v. Mlotkiewickz, (Chancery Division, Ocean County, April 13, 2016):

Issue:  In cases where the parties have not established a methodology for the payment of their children’s uncovered medical expenses, may the court impose its own protocol upon the parents?

Holding:  Yes.  In cases where the parties have not created a system for the timely and consistent payment of uncovered medical costs for the children, the court may establish a specific protocol for the parties to follow in handling payment of future, ongoing, uncovered and unbeimbursed health care bills.

Issue:  In cases where a parent has accrued arrearages as the result of non-payment of his or her share of the children’s uncovered medical expenses, can the court order that these payments constitute child support, such that they can be reflected as arrears under the payor’s probation department account?

Holding:  Yes.  Contribution toward a child’s medical bills is, in substance, a form of child support, even when not labeled as same.  Accordingly, when a custodial parent obtains an order quantifying the non-custodial parent’s past medical arrears to a specific dollar amount, the family court may add such arrearage to any child support arrears under an existing probation account, with such increased arrears collectible by the probation department under a specific, court-ordered repayment schedule.

Additional Issues to Consider:

  • Addressing the payment of uncovered medical expenses for children and reimbursements due and owing between the parties can be a logistical nightmare, especially when the Divorce Settlement Agreement does not provide a methodology for addressing the payment of these expenses. Practitioners should affirmatively set forth in any final Divorce Settlement Agreement the procedure the parties are to follow to ensure that each party is timely paying for his or her share of the children’s uncovered medical expenses.  This procedure should include but not be limited to: 1) how frequently the parents will exchange an accounting and proofs as to uncovered medical expenses incurred by each party on behalf of the children; 2) the extent of proofs required to be provided to the other parent to confirm that an expense was incurred; 3) the timeframe for which reimbursement must be made to the parent incurring the expense; 4) the timeframe for the exchange of EOBs; 5) the extent to which expenses will be paid directly to the provider or paid by one parent and then reimbursed by the other parent for his or her share; and 6) the extent to which approval of an expense is needed prior to the incurrence of that expense.
  • When a potential client comes to you with regard to a post-judgment motion regarding the issue of unpaid or unreimbursed medical expenses for the children, you should get a firm understanding of the extent of the alleged outstanding expenses; and the proofs maintained by the parent seeking reimbursement. If there was never a system established between the parents as to payment/reimbursement of these expenses, and they have been operating in a “wild-wild west” world as to this issue, the costs in connection with a post-judgment motion on this issue could well exceed the amount the client is seeking to recover.
  • The court provides a specific protocol for the parties in this case, and that protocol is outlined in full in the court’s Opinion. Practitioners should keep this case on hand to use as a potential model to include in Divorce Settlement Agreements.

Malek v. Malek, (Chancery Division, Ocean County, August 5, 2016)

Issue:  Is maintaining the marital lifestyle the primary criteria to consider in determining an appropriate pendente lite support award?

Holding:  No.  Retention of the marital lifestyle is not the sole or primary criteria in a pendente lite alimony analysis.  Both the terms and spirit of the amended alimony statute direct the analysis of pendente lite alimony applications under applicable statutory factors, which involve more than considering either party’s purported marital lifestyle or former “standard of living.”  It is also mathematically probable that following separation, neither party will be financially able to maintain the former “marital lifestyle on a pendente lite basis.  As such, the court may equitably enter a fair pendente lite support order under which neither party maintains the prior marital standard of living.

Additional Points to Consider:

  • This case addresses the fiction of the “preservation of the status quo” as to marital lifestyle in connection with fixing pendente lite support in cases where the parties are separated. It has become common place for attorneys to blindly argue that his or her client is entitled to receive “X” dollars, as this represents the amount expended by his or her client when the parties were residing in one household together—notwithstanding the fact that the parties are separated at the time of the pendente lite application and incurring the costs for two (2) separate households.  If the parties were just making ends meet in terms of the payment of expenses as an intact marriage, it is entirely impossible for the status quo to be maintained in terms of the payment of expenses following separation.
  • In connection with any application for pendente lite support when the total available income cannot possibly sustain the marital lifestyle for both parties, practitioners should provide the court with a methodology for sharing the income available to the parties in a way that will not leave one party living in a far superior lifestyle than the other party.
  • The court in this case pointed out that an analysis as to pendente lite support, which considers only the needs of the party seeking support and his or her request to maintain the status quo, could “leave the other party with little or no money to afford any type of similar lifestyle at all. Practitioners representing the supporting spouse should provide the court with an analysis of that party’s cash flow and the inability of that party to maintain a lifestyle equivalent with his or her spouse in the event pendente lite support is awarded in an amount that will allow the spouse to maintain the marital lifestyle.
  • The revised alimony statute, as noted by the court, directs the court to consider the following in entering a support award:
    • “The practical impact of the parties’ need for separate residences and the attendant increase in living expenses on the ability of both parties to maintain a standard of living reasonably comparable to the standard of living established in the marriage or civil union, to which both parties are entitled…” J.S.A. 2A:34-23(c)
    • Neither party has “a greater entitlement to that standard of living [i.e., the marital standard of living] than the other.” J.S.A. 2A:34-23(b)(4).
    • “No factor shall carry more weight than any other factor unless the court finds otherwise” J.S.A. 2A:34-23(b).
  • In this case, the wife moved in with her mother because she could not afford the shelter expenses of the marital abode. The court held that the wife’s moving in her mother should not preclude a requirement on the part of the husband to contribute to shelter expenses on behalf of the wife.  The court held that “it would be the height of irony if defendant now was denied alimony because limited financial circumstances essentially required her to move back in with her mother in the first place.”

 

Mauer v. Mauer, (App. Div. October 25, 2016)

Issue:  Did the trial court err in denying the husband’s motion to amend the terms of the parties’ marital settlement agreement based on the husband’s discovery after entry of the settlement agreement that tax consequences in connection with the distribution of retirement accounts would result in the wife receiving a greater net benefit of the distributed assets?

Holding:  No.  The husband did not demonstrate by clear and convincing evidence the need for reformation of the agreement based on mutual mistake.  Here, the trial court found that the parties intended to divide their assets as set forth on the record at the time of the divorce, and the husband failed to provide evidence to show that the parties had intended to consider the tax impact of each marital asset.

Additional Points to Consider:

  • The parties in this case entered into a handwritten settlement agreement at the courthouse following the Early Settlement Panel and six (6) hours of conferencing and negotiating on that date. Practitioners should proceed with extreme caution in entering any type of agreement in this manner.  The devil is always in the detail.  The desire to have a case settle now should not supersede the need to prepare an accurate and comprehensive settlement agreement.
  • Except in extreme cases, the prudent practitioner should take the basis of an agreement reached in the context of a mediation or as the result of an Early Settlement Panel and utilize same to prepare a comprehensive settlement agreement. The chances of leaving out an important detail are much greater when an agreement is prepared in a hurried fashion.  In this case, the parties had been at the courthouse negotiating for at least six (6) hours.  It would be difficult for any attorney or client to have a completely clear head under those circumstances.  When details are missed, the client will not blame himself; he will blame the attorney.

Mueller v. Mueller, (Chancery Division, Ocean County, April 22, 2016):

Issue:  What is the meaning of “prospective” retirement in terms of the potential termination of alimony under N.J.S.A. 2A:34-23(j)(1-3).

Holding:  The amended statute does not set a specific minimum or maximum time period for obtaining an advance ruling on a prospective retirement, and its effect upon an existing support obligation.  The spirit of the statute, however, inherently contemplates that the prospective retirement will take effect within reasonable proximity to the application itself, rather than several years in advance of same.

Issue:  Is it proper for a party to file for an application to terminate alimony based on a prospective retirement five (5) years in the future?

Holding:  No.  An application by an obligor to terminate alimony based upon a prospective retirement, filed five (5) years before the application’s anticipated retirement date, is filed too far in advance for the court to undertake an objectively reasonable analysis of the application, as contemplated under the statute, for termination of alimony based upon prospective retirement.

Issue:  Does an obligor whose alimony obligation is terminated based on prospective retirement at a certain age actually have to retire at the specified age.

Holding:  Yes.  An order for prospective termination or modification of alimony based upon reaching a certain retirement age inherently contemplates that the obligor would have to not only reach a specific age, but also will actually retire at that point.  If an obligor reaches the statutory retirement age, but does not actually retire at that point, then the retirement age provisions triggering a potential termination or modification of alimony are inapplicable until such time as the obligor actually retires or submits an application regarding a prospective retirement in the near future, for the court’s consideration under N.J.S.A. 2A:34-23(j).

Additional Information:

  • The court finds that the obligor’s application to terminate alimony based on his prospective retirement in five (5) years was premature, as the court would need reasonably current financial information as of the time period of the proposed retirement. As the court points out, this appears to create a catch 22 situation.  If an obligor waits too long to file such an application, the obligor is left with no way to know whether he or she is able to make the necessary plans in connection with retirement.  On the other hand, if the obligor files an application prematurely, the court is without the necessary information it would need to make a decision based on consideration of the statutory factors at the relevant time.
  • The court indicates that the obligor would have the right to seek a termination of his alimony obligation when he “has an actual or specific, proposed prospective retirement in the near future.” Is this one year before retirement; 6 months; 1 month?  The court says that the statute does not intend to have a bright line rule in that regard.
  • This case addresses a prospective retirement case wherein the parties entered into their Marital Settlement Agreement prior to enactment of the September 10, 2014 amended alimony statute. In those cases, the statute puts the burden on the payor to demonstrate why alimony should terminate.  In contrast, in cases where the parties divorced after entry of the amended statute, the burden of proof is on the payee to show why alimony should not terminate.  When the practitioner is filing an application for termination of alimony based on prospective retirement or defending against same, the practitioner needs to be fully aware of his or her burden of proof.

M.T. v. D.T., (Chancery Division, Ocean County November 7, 2016)

Issue:  When parents sharing joint legal custody are unable to reach an agreement on an important medical decision in the child’s life, does one parent have the authority to go through with the treatment unilaterally, or must the child’s health care be held in abeyance pending potentially lengthy litigation between the parties?

Holding #1:  When the parties demonstrate an inability to reach a mutually acceptable agreement on issues of high importance in a child’s life, such as medical care and surgery, then the concept of “joint custody” may be subordinated to the child’s best interests and the need for one parent to have decision-making authority on such issues, so that the child’s health needs receive timely and appropriate attention without delaying treatment and placing medical personnel in between two disagreeing parents.

Holding #2:  N.J.S.A. 9:2-4(c) permits a court to enter “any other” custody arrangement as the court may determine to be in the best interests of the child.  Such arrangement may include, when in the child’s best interests, a temporary hybrid combination containing elements of both joint custody and sole custody, regarding a child’s need for medical attention or other immediate needs when specific factual circumstances so require.  When a parent designates one parent as temporary, medical custodian of the child to arrange for and oversee a child’s immediate medical care, such arrangement does not otherwise alter any prior arrangements whereby the parties continue to serve as joint legal custodians in other aspects of the child’s life, unless expressly ordered by the court.

Additional Points to Consider:

  • Practitioners should consider addressing, in their settlement agreements, these unique circumstances wherein one parent needs the authority to make the call. Whether it be enrollment in school; treatment for a medical issue; participation in religious practices/services or otherwise, giving one parent the trump card to make the decision could prevent post-judgment litigation.
  • The court underscores that custody determinations are to be gender-neutral. There appears to continue to be a lingering belief among many practitioners and judges that mom has the upper-hand.  If dad is just as fit a parent as mom, we, as practitioners, need to emphasize the gender-neutrality of our custody laws.
  • The court in this case granted the defendant father temporary medical custodianship to move forward with medical treatment on behalf of the parties’ son. This was a fact sensitive decision.  If you are representing a party seeking to obtain temporary, legal custody as to an issue, make clear that your client has the child in his care more often; is more involved or informed as to the issue informed; or any other facts to put the trump card in your client’s hand.

Reitz v. Reitz, (Chancery Division, Ocean County, November 16, 2016)

Issue:  When the family court appoints a guardian ad litem (GAL), what is the appropriate protocol regarding communication with, and submission of documents to, such third persons by parties and their respective attorneys?

Holding #1:  In a contested family court action involving a guardian ad litem or court-appointed expert, the court may establish reasonable advance protocols and parameters regarding communications and submission of documents by the parties and/or counsel to the GAL or expert.

Holding #2:  Judicially-created parameters for communication with or supplying documentation to a guardian ad litem or court appointed expert may be reasonable, but should not be unduly restrictive or cumbersome so as to unreasonably impede upon the ability of the GAL or expert to perform his or her function in an efficient and time-sensitive manner.

Additional Points to Consider:

  • One of the central issues in this case was the concern by one party that the other party was submitting ex-parte communications to the guardian ad litem. The court noted that the non-submitting party could legitimately have concern that only piece-meal correspondence was provided to the GAL, which could be out of context.
    • The court notes that while the Rules of Court do not specifically prohibit ex-parte communications with the GAL, “it is still important to consider the spirit and policy of open disclosure, and the reality that certain contacts, even if or when permissible, might still create potential issues and complications regarding possible perceptions, misperceptions, concerns or suspicions by one or both litigants regarding either unequal access, and/or lack of balance in the investigative process.
      • A good practitioner does not win a case by non-disclosure. When a neutral expert is involved, practitioners should be extremely cautious about sending any information ex parte.
    • The court does not restrict the GAL’S ability to communicate with one party or the other. The focus of the concern is a litigant’s ex parte communication with the   The GAL does, however, have an obligation to keep records of all communications with either party or third party collaterals.
    • In this case, the court directed that all communications/documentations to the GAL by a party shall be forwarded to the other party or counsel. The court further terminated any oral communication by either attorney and the GAL unless both attorneys are participating in the communication.
      • The GAL is a neutral expert. This makes sense.  Ex parte communications with a neutral expert raise issues of impartiality, whether they exist or not.
    • The court notes that its parameters are specific to this case and parameters for communications with the GAL are malleable based on the specifics of the case.

Serrano v. Urbano (Chancery Division, Ocean County, November 29, 2016)

Issue:  To what extent is a custodial neutral expert evidential in connection with a trial on the issue of custody and parenting time?

Holding #1:  A custody neutral assessment (C.N.A.) is not a forensic custody evaluation, and it cannot serve as the equivalent of an evaluation at trial.

Holding #2: An expert witness cannot render an expert opinion and recommendation on the ultimate issue of custody from a psychological standpoint if no forensic evaluation actually ever occurred in accordance with recognized standards, as same would constitute an improper net opinion without appropriate foundation.

Holding #3:  While a C.N.A. may not be admissible as a custody evaluation for the purpose of providing a forensic and evaluative expert opinion on the ultimate issue of custody, the testimony of the mental health professional who conducted the C.N.A. as well as the written report memorializing same, may be admissible in part for other relevant purposes concerning a child’s best interests under the doctrine of limited admissibility. N.J.R.E. 105.

Holding #4:  A mental health professional who conducted a C.N.A. may testify as to statements made or actions taken by each party during the C.N.A. process, and may further testify as to his or her professional impressions and concerns regarding such statements or actions which the assessor personally witnessed and/or experienced in his or her contact with either party during such process, if relevant to the best interests of the child at issue.

Additional Notes:

  • The parties in this case opted to obtain a custody neutral assessment because they could not afford a full custody evaluation with a forensic expert. Practitioners need to consider how to address custody disputes in cases where the parties do not have the means to afford an expensive custody evaluation.
  • J.R.E. 702 imposed three core requirements for the admission of expert testimony: 1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; 2) the field testified to must be a state of the art such that an expert’s testimony is sufficiently reliable; and 3) the witness must have sufficient expertise to offer the intended testimony.
  • The net opinion rule prohibits the admission into evidence of an expert’s conclusions that are not supported by factual evidence or other data. As Judge Jones notes, “[t]he rule requires that an expert give the why and wherefore that supports the opinion, rather than a mere conclusion.”
  • The court points out the differences between a traditional custody evaluation and a custody neutral assessment (C.N.A.) A traditional custody evaluation generally involves a detailed forensic analysis by a trained child psychologist under established psychological guidelines. A C.N.A. provides for the opinion of a neutral professional with regard to the issue of custody and parenting time by an individual who is not necessarily a forensic psychologist.  The C.N.A. generally does not involve any psychological testing of either party.
  • This case provides a good guide for practitioners to understand the key differences between a full evaluation and a C.N.A.
  • In this case the individual who performed the C.N.A. did not perform a forensic evaluation and, as such, his report and conclusions as it related to the issues of custody and parenting time were not admissible.
  • J.R.E. 105 provides that evidence may be admitted for one purpose but not another, so long as the court restricts the evidence to its proper scope. The court held that even though a C.N.A. generally does not constitute or qualify as a forensic custody evaluation, there are still portions of the testimony and report which may be relevant and material, and therefore may still be admitted into evidence.  Here, the court found that the observations as to each party’s words; actions and reactions during the process could be relevant and material to factors the court must consider in rendering a decision on custody and parenting time issues.  The court further held that the professional conducting the C.N.A. could testify, based on his experience in the mental health field with years of professional experience, any specific impressions or concerns arising from the parties’ words or conduct relative to the welfare of the child at issue.  Likewise, the C.N.A. report could be admissible as evidence for the purpose of reflecting upon the parties’ words, actions or conduct during the C.N.A. process, as well as any impressions and concerns the assessor experienced in witnessing same.
  • This case provides parties who cannot afford a full-fledged custody evaluation and avenue to have the far less expensive C.N.A. utilized as evidence in connection with a determination of custody and parenting time, albeit to a lesser extent than a full evaluation.

M.C. v. P.C., (Chancery Division, Ocean County, November 28, 2016)

Issue:  Should a non-custodial parent exercise midweek overnight parenting time with the parties’ children during the school year, or is such an arrangement contrary to a child’s best educational interests and need for stability and consistency?

Holding #1:  A parenting schedule between divorced parents must reasonably consider a child’s best interests, including educational interests and must account for each party’s responsibility to dutifully oversee their child’s academic obligations and schedule;

Holding #2:  A non-custodial parent’s request for mid-week overnight parenting time is not per se contrary to a child’s best interests, particularly when the non-custodial parent lives reasonably close to the other parent and the child’s school.  Such a mid-week overnight arrangement, however, generally and implicitly carries ongoing duties and obligations on the part of the non-custodial parent to oversee the child’s ongoing educational responsibilities for the next day’s school session during such parenting time, including as applicable, attendance to homework assignments, preparation for tests and quizzes scheduled for the following school day, general studies, and a reasonable bedtime;

Holding #3:  If and when competent evidence, beyond mere speculation or conjecture, persuasively reflects that a midweek overnight parenting schedule is becoming unduly obstructive of a child’s ongoing classroom performance and/or scholastic responsibilities at home, a court may in its discretion consider modifying the schedule in a child’s best educational interests; the court, however, will not modify same based upon generalized or speculative assumptions about midweek overnight parenting time, but upon a showing of persuasive evidence that such a schedule is, in a particular case, contrary to a child’s interests.

Additional Points to Consider:

  • In cases where custody and/or parenting time are an issue in the case, practitioners should immediately instruct their client to maintain a daily diary with regard to parenting time. If a child is not getting to school on time during parenting time with the other parent; failing to do homework while with the other parent; or in the event other incidents of note occur during parenting time with the other parent, this should be noted in the diary.  This will provide the client a roadmap for the court in the event he/she is arguing that the parenting time schedule is not working.
    • In this case, the plaintiff’s failure to provide any substantive corroborating evidence to support her position resulted in a denial of the plaintiff’s request to terminate mid-week parenting time.
  • In this case, the parties’ agreement called for the defendant to have “reasonable and liberal parenting time.” Practitioners should be extremely cautious about entering into this type of generic arrangement.  Even if the parties are cooperating with regard to the children at the time the settlement agreement is entered, this may not always be the case.  A complete lack of specificity as to the schedule often sets the parties up for post-judgment litigation.
  • Judge Jones notes that “theoretically, it should not be difficult at all for two responsible and well-meaning divorced parents to provide their children with joint educational oversight through ongoing positive communication with each other (text, email or otherwise).” However, since divorcing or divorced parents often do not behave in this responsible manner in reality, practitioners should verse themselves in tools which can assist in the process.  For example, Our Family Wizard allows parents to exchange, online, information regarding the children’s schooling and extracurricular activities—thus allowing for coordination of the children’s schedules without the need for direct communication between the parties.
  • Judge Jones points out the practical problem of mid-week overnights in cases where the parties do not live within close proximity. Practitioners should be discussing with their clients the practicality of the parenting time schedule being proposed and the potential impact upon the child/children.

D’elia V. D’elia, (App. Div., December 14, 2016).

Issue:  Did the trial court err in holding that an oral agreement reached by the parties and then confirmed as an agreement in subsequent written communications between counsel was binding upon the parties?

Holding:  No.  Matrimonial settlement agreements need not necessarily be reduced to writing or placed on the record to be enforcement.  Here, the parties had a meeting of the mind as to the essential terms of the agreement.  Where the parties agree upon the essential terms of a settlement, so that the mechanics can be fleshed out in a writing to be thereafter executed, the settlement will be enforced notwithstanding the fact that the writing does not materialize because a party later reneges.

Additional Points to Consider:

  • The parties in this case were engaged in protracted negotiations, including 4-way meetings; mediation sessions; and six Intensive Settlement Conferences between early February and mid-June 2014. They also exchanged multiple drafts of an MSA.  Would this case be different had the parties reached the “agreement” after a single day of negotiations?
  • This case is a cautionary tale to practitioners as to the representation that an agreement has been reached prior to same being memorialized. With that said, it seems that the judge got it right in this case—as all facts suggest that there was a meeting of the minds between the parties that the Wife only refuted upon the passage of the new alimony statute and the potential benefit to her if the deal did not go through as intended.
  • In this case, the draft MSA prepared by the Husband’s counsel made clear that the parties had considered potential changes to the law as the result of the alimony reform movement. The Wife’s attorney did not provide any objection to this language.  Counsel for the Husband was wise to anticipate the potential that the Wife could attempt to set aside the agreement based on an argument that she had not considered potential changes in the law.  Had the Husband’s attorney not included this language in the draft MSA, the decision by the trial court could have been in the Wife’s favor.
  • If an attorney represents a client who has entered into an agreement, which is being memorialized, and then that client clearly jumps ship—does the attorney have an obligation to advise the client of any type of ethical obligation to live up to the agreement reached between the parties? In this case, the Wife’s attorney advised the Husband’s attorney that there were not any “material changes” to the draft MSA.  When the Wife later takes a different position, shouldn’t the attorney let the client know that she is essentially backing out of a deal to which she agreed?

Richardson-Atwell v. Atwell (App. Div. December 22, 2016)

Issue:  Did the trial court err in awarding limited duration alimony to the plaintiff-wife for a term of five (5) years, when the parties’ marriage was approximately six (6) years in duration, and the defendant-husband paid pendente lite support for approximately four (4) years prior to a decision being entered?

Holding:  Yes.  The plaintiff-wife is not entitled to receive alimony in excess of the length of the marriage.  As the marriage was six (6) years in duration, and she received pendente lite support for four (4) years, the trial court erred by awarding an additional five (5) years of alimony after entry of the Judgment of Divorce.

Additional Points to Consider:

  • J.S.A. 2A:34-23(b)(13) permits the court to consider “the nature, amount and length of pendente lit support paid” in making a final alimony award. The statute does not require, however, that a year-for-year credit be given against the final award of alimony for each year that pendente lite support was paid.  The court in this case seems to interpret the statute to require such a credit.
  • Trial in this case commenced on October 16, 2012 and did not conclude until July 21, 2014 due to delays in the trial. It is not uncommon for trials to be protracted due to a variety of reasons.  Parties representing the payor should be mindful of the affect their client’s extended payment of pendente lite support during the trial period should have on an ultimate determination of alimony.  A payor’s position as to duration of alimony may well change by the end of an extended trial period during which time the defendant is paying pendente lite
  • In this case, it was undisputed that the plaintiff-wife suffered from multiple sclerosis and that she could not work outside the home. The trial court explicitly found in this case that there were no exceptional circumstances to warrant an adjustment to the permissible length of the term of limited duration alimony.  Would the trial court’s decision have been upheld on appeal if the trial court had considered this to be an extraordinary circumstance case?

Robitzski v. Robitzski (App. Div. May 5, 2016)

Issue:  Did the trial court err in holding that the ex-husband failed to meet his burden to show a prima facie case of cohabitation and therefore denying the husband’s request to terminate alimony?

Holding:  No.  The record presented to the trial court lacked any evidence that the couple’s finances are intertwined or that the ex-wife is financially dependent upon the significant other; no evidence that the couple shared living expenses; and no proof of any enforceable promise of support.  Under both the criteria under the revised alimony statute and the criteria to establish cohabitation prior to the revisions to the alimony statute, the record presented was insufficient to rise to the level of a prima facie case that would justify the additional discovery sought by the ex-husband.

Additional Points to Consider:

  • In this case, the parties’ Settlement Agreement provided that the husband’s alimony obligation could be modified or terminated pursuant to “New Jersey statutes and case law” in the event it is proven the ex-wife cohabits with another person. The Agreement did not further define cohabitation, nor did it specify whether the applicable New Jersey statute and case law for evaluating a cohabitation claim would be those standards that existed at the time of the divorce in 2004 or those prevailing at a later time when and if the ex-husband filed a motion for termination or modification.  Practitioners should be careful to make this distinction when drafting Settlement Agreements any time a definition of an event is to be defined by statutes or case law.
  • In this case, the wife acknowledged that she spent 100 nights out of the year with her paramour. The court did not find that the wife was cohabitating, underscoring the fact that overnights are not the smoking gun in terms of proving cohabitation.  Practitioners need to address each statutory factor.
    • The court does suggest that the husband would not be precluded from filing another motion to establish cohabitation in the event he could prove that the couple resided together more than an average of 2 nights per week. The court does not make clear why 2 nights would warrant consideration, while 1 overnight would not.
  • The trial court in this case refused to consider Facebook postings the wife had posted of herself with her paramour at multiple events, finding them to be inadmissible hearsay. What if the wife had posted items on Facebook that would specifically indicate a financial interdependency or other fact relevant to cohabitation?
    • The court fails to address whether the trial court erred in refusing to consider the Facebook posts, as it determined that the outcome of the case would have been the same regardless of whether the Facebook posts were considered.