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					       The Ten Most Important Family Law Cases Reported in 2009

                                                                               By John P. Paone, Jr.




           Similar to 2008, this year resulted in a startling low number of

reported family law decisions. This may be a function of the current

economic times and the costs involved in taking a case to final hearing and

then up on appeal. It may also be a function of the rise of alternate dispute

resolution in that cases resolved through mediation or arbitration do not

advance the case law. Finally, it may simply be that family law has matured

to the point where fewer novel issues arise which warrant a reported opinion.

           The following is an outline of what I consider to be the ten (10) most

important reported cases decided in 2009. These cases addressed significant

issues relevant to the practice of divorce and family law. This presentation

will review each opinion and the impact that it will have upon our practice

and future Family Court matters. Practice tips will also be discussed as to

how matrimonial attorneys can best utilize these decisions.





    I wish to thank my associate, Megan S. Murray, Esq., for her assistance in the preparation of this article.


                                                         1
                       Fawzy v. Fawzy, 199 N.J. 456 (2009)

             Fawzy—A Triumph for Parents and Judicial Efficiency

                     By: John P. Paone, Jr.* and Megan S. Murray**

       In recent years, arbitration has become an increasingly popular litigation

alternative for matrimonial practitioners and their clients. Arbitration gives the

parties control to choose the individual who will decide their case and cuts down

significantly on the time and expense of litigating a case from start to finish.

Especially today, where courts in nearly every vicinage have backed up trial

calendars and judges have no time to accommodate continuous trials, arbitration

frees up the court docket and gives parties an expedited resolution to their case.

       Twenty-five years ago, the Supreme Court in Faherty v. Faherty, 97 N.J.

99 (1984) approved arbitration of family law matters, including alimony and child

support. Recently, in Fawzy v. Fawzy 199 N.J. 456 (2009), the Court expanded

the holding in Faherty to provide that arbitration may also be utilized to resolve

issues of child custody and parenting time. In a unanimous opinion (written by

Justice Long), the Court held that the constitutionally protected right of parental

autonomy includes the right of parents to choose the forum in which to resolve

their disputes over child custody and parenting time. In those cases where the

parties agree to arbitrate custody and parenting time, the court will confirm the

arbitrator’s award unless either party proves that harm would result to the child as

a result of implementation of the arbitrator’s decision.



                                          2
       The facts of the Fawzy case are relatively straight forward. Mrs. Fawzy

filed a Complaint for Divorce in 2005, and during the course of the litigation, a

guardian ad litem was appointed for the parties’ two (2) children, ages eight (8)

and nine (9). In 2007, the parties agreed to submit their case to binding

arbitration, including financial issues as well as the issues of child custody and

parenting time. The parties further agreed that the guardian ad litem would serve

as the arbitrator. To memorialize their Agreement, the parties testified, on the

record before the trial judge, that they agreed to binding arbitration and that they

understood that the arbitrator would be making a binding decision with regard to

the issues in dispute, including the issue of custody and parenting time.

      While binding arbitration was still in progress, Mr. Fawzy filed an Order to

Show Cause to stop the arbitration. Mr. Fawzy argued that the issue of custody

could not be submitted to arbitration as a matter of law and, alternatively, the

agreement to arbitrate was not binding, as he was forced to sign it under duress.

Mr. Fawzy’s Order to Show Cause was denied. Subsequently, the arbitrator

issued a custody and parenting time award, granting the parties joint legal custody,

with Mrs. Fawzy having primary physical custody subject to the parenting time of

Mr. Fawzy. While arbitration on the financial issues was still in progress, Mr.

Fawzy filed a second Order to Show Cause, seeking both to vacate the arbitration

award and to disqualify the arbitrator from further participation in the case.

       Mr. Fawzy’s Order to Show Cause was again denied, and Mr. Fawzy

appealed, arguing that custody issues cannot be submitted to binding arbitration


                                          3
because it deprives the court of is parens patriae obligation to assure the best

interests of the child. The Appellate Division, despite acknowledging Mr.

Fawzy’s failure to prove that the arbitrator’s award would harm the children, held

that child custody issues cannot be submitted to binding arbitration. The case was

therefore remanded to the trial court for a hearing on custody and parenting time

issues. Mrs. Fawzy filed a Petition of Certification to the New Jersey Supreme

Court, and Mr. Fawzy filed a Cross-Petition as to the issue of whether a guardian

ad litem could serve as an arbitrator in a child-custody proceeding. The Supreme

Court granted both the Petition and Cross-Petition.

       The issue in Fawzy was one of first impression in New Jersey. While the

Faherty decision did not go so far as to allow for arbitration of custody and

parenting time issues, the Court suggested that arbitration would be a favorable

alternative to litigation:

       We do not reach the question of whether arbitration of child custody
       and visitation rights is enforceable since that issue is not before us.
       However, we note that the development of a fair and workable
       mediation or arbitration process to resolve these issues may be more
       beneficial to the children of this state than the present system of
       courtroom confrontation.

       Faherty, 97 N.J. at 100.

       The Fawzy Court acknowledged that in the twenty-five years since

Faherty, judicial support for arbitration has increased across the nation.

Indeed, the majority of jurisdictions that have addressed whether arbitration

of custody and parenting time issues is appropriate have concluded that



                                          4
parents are empowered to submit these issues to arbitration in the exercise

of their parental autonomy. Moreover, scholarly reports on this subject

have emphasized the benefits of arbitration as a means to minimize the

harmful effects of divorce litigation on both children and parents. In

contrast to the win/lose framework of custody litigation, “arbitration

conducted in a less formal atmosphere, often in a shorter time span than a

trial, and always with a fact-finder of the parties’ own choosing, is often far

less antagonistic and nasty than typical courthouse litigation.” Fawzy at

472 (quoting Joan F. Kessler et al, Why Arbitrate Family Law Matters?, 14

J. Am. Acad. Matrimonial Law. 333 (1997)).

       Despite the Court’s emphasis on the public policy arguments in

favor of arbitration, Fawzy was ultimately a case turning on constitutional

interpretation and “the intersection between parents’ fundamental liberty

interest in the care, custody, and control of their children, and the state’s

interest in the protection of those children.” The Court held that because

parental autonomy includes the right of parents to make decisions regarding

custody, parenting time, health, education and welfare of their children, the

right to parental autonomy must therefore include the right to submit issues

of child custody and parenting time to an arbitrator for disposition. So long

as the parties agree to arbitrate issues of custody and parenting time, courts

have no power to superimpose their decision as to what is in the best

interests of the children:


                                           5
          …[t]he bundle of rights that the notion of parental autonomy
          sweeps in includes the right to decide how issues of custody and
          parenting time will be resolved. Indeed, we have no hesitation in
          concluding that, just as parents “choose” to decide issues of custody
          and parenting time among themselves without court intervention,
          they may opt to sidestep the judicial process and submit their
          dispute to an arbitrator whom they have chosen.

         Fawzy, 199 N.J. at 477.

         Because the agreement of parents to arbitrate custody and parenting

time is a fundamental liberty interest, the standard of review of an

arbitration decision is significantly more limited than the best interests

standard utilized in litigating a custody case. The Court held that a parent

seeking to overturn the decision of the arbitrator must show that the

arbitrator’s decision would result in harm to the child. In the absence of a

claim of harm, the parties are limited to review of the arbitrator’s award

under the Arbitration Act of 2003.1 Moreover, even in those cases where a

parent makes a prima facie showing that harm will result to the child as a

result of the arbitrator’s decision, the trial court must first address the claim

of harm before making any further inquiry as to the best interests of the

1
  Pursuant to this Act, an arbitration award will only be set aside under the following conditions: (1) the
award was procured by corruption, fraud, or other undue means; (2) 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 proceeding; (3) 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 15 of this act, so as to substantially prejudice the rights of a party to the
arbitration proceeding; (4) an arbitrator exceeded the arbitrator's powers; (5) there was no agreement to
arbitrate, unless the person participated in the arbitration proceeding without raising the objection pursuant
to subsection c. of section 15 of this act not later than the beginning of the arbitration hearing; or (6) the
arbitration was conducted without proper notice of the initiation of an arbitration as required in section 9 of
this act so as to substantially prejudice the rights of a party to the arbitration proceeding. N.J.S.A. 2A:23B-
23(a).




                                                       6
child. Only in the event that the court finds evidential proof that harm will

result to the child, will the presumption in favor of the parents’ choice of

arbitration be overcome. In those cases, the court will set aside the

arbitrator’s award and decide custody and parenting time de novo based on

the best interests of the child.

       The Fawzy Court made clear that the harm standard is not easily

satisfied and that it is a significantly higher burden than a best interests

analysis. An arbitrator’s decision will not be overturned because one parent

claims that he or she is the better parent or because one parent is unsatisfied

with the amount of parenting time he or she received. Rather, only

evidence, such as proof that the custodial parent has a substance abuse issue

or debilitating mental illness, which would substantiate a claim that actual

harm will result to the child in that parent’s care will be sufficient.

        In an effort to ensure that courts will have the ability to properly

review an arbitrator’s award of custody and parenting time, Fawzy held that

additional procedural requirements are mandated. Specifically, in addition

to the general rules governing arbitration under N.J.S.A. 2A:23B-1 to 32,

child custody arbitration requires that a record of all documentary evidence

by kept; that all testimony be recorded verbatim; and that the arbitrator state

in writing or otherwise record his or her findings of fact and conclusions of

law with a focus on the best interests standard. If these procedural

guidelines are not met, the arbitrator’s award is likely to be vacated with the


                                           7
potential for an entirely new trial on the issue of custody and parenting

time.

        In addition to the procedural requirements set forth above, parents

who choose to arbitrate custody and parenting time must enter into a

written or recorded agreement pursuant to the requirements under N.J.S.A.

2A:23B-1. The agreement must state in clear language: 1) that the parties

understand their entitlement to a judicial adjudication of their dispute and

are willing to waive that right; 2) that the parties are aware of the limited

circumstances under which a challenge to the arbitration award may be

advanced and agree to those limitations; 3) that the parties have had

sufficient time to consider the implications of their decision to arbitrate;

and 4) that the parties have entered into the arbitration agreement freely and

voluntarily, after due consideration of the consequences of their doing so. 2

Additionally, in the event the parties are not submitting all issues to

arbitration, the arbitration agreement should state with specificity the issues

which are to be decided by the arbitrator.3




2
  The Fawzy Court directed the Supreme Court Committee on Family Practice to develop a form agreement
to be used by attorneys and judges in cases where the parties wish to submit custody and parenting time to
binding arbitration.
3
  On December 21, 2009, the Appellate Division, in the matter of Johnson v. Johnson, ____ N.J. Super.
_____ (App. Div. 2009) held that the Fawzy decision should be applied retroactively to arbitration matters
regarding custody and parenting time which have not reached final judgment.



                                                     8
         Despite upholding the submission of custody and parenting time

issues to binding arbitration, the Court held that it could not uphold the

award of the arbitrator in Fawzy. The Court held that the agreement

entered into by the parties was insufficient, as without a written agreement

to arbitrate, the oral record of the parties’ agreement had to reflect that the

parties understood their rights, knew what they were waiving, and that they

were aware of what review was available. The Court held that based on the

agreement placed on the record before the trial court, it could not find that

this standard had been met.4

         After addressing the right to submit custody and parenting time

issues to binding arbitration, the Court turned to the issue of whether

parents have full discretion over the selection of the arbitrator. Mr. Fawzy

contended that the arbitration award could not be upheld based on the

conflict of interest which existed by having the guardian ad litem serve as

arbitrator. The Court agreed with Mr. Fawzy, holding that a guardian ad

litem cannot be chosen to serve as arbitrator due to the inherent conflicts

which could arise as a result of this situation. The Court reasoned that the

arbitrator’s role is to make an award based solely on the evidence adduced

during arbitration. However, if the arbitrator previously served or is

serving as guardian ad litem and has investigated the matter, he is likely

4
 In fairness to the trial judge, the Court noted that the trial judge did not have the benefit of this opinion
and the standards set forth therein and, moreover, may have believed that all the details of the arbitration
had been worked out and explained by the lawyers.



                                                        9
privy to facts unknown to both parties and which are outside of the record.

Moreover, to the extent the arbitrator has interacted with the parties during

his investigation or made preliminary reports, he could be exposed to a

claim of partiality under the Arbitration Act. Finally, the Court pointed out

that an individual serving in this dual role could be forced to testify as

guardian ad litem if the case goes back to court.

        The Fawzy decision is a victory for divorcing parents and our justice

system. The case recognizes that the onset of matrimonial proceedings

does not limit the ability of parents to make voluntary choices relative to

their children without judicial interference. It also promotes binding

arbitration, a less litigious alternative to trial, which often expedites a

resolution and diminishes the already overbooked docket of the courts.

*John P. Paone, Jr. is a past chair of the New Jersey State Bar Association Family Law Section and is
currently 2nd Vice President of the New Jersey Chapter of the American Academy of Matrimonial Lawyers.
He is a Certified Matrimonial Law Attorney and serves by appointment of the New Jersey Supreme Court
as a member of the Matrimonial Committee of the Board on Attorney Certification and member of the
Board on Continuing Legal Education. He is currently the First Vice President of the Middlesex County
Bar Association. He is the senior partner of Paone & Zaleski in Woodbridge where he limits his practice to
divorce and family law.

**Megan S. Murray is an associate with the Law Offices of Paone & Zaleski in Woodbridge, New Jersey.
Before joining the firm, she served as clerk to the Honorable Judge Paul Kapalko, Presiding Judge, Family
Part, Monmouth County. Ms. Murray is the co-chair of the Young Lawyer’s Subcommittee of the Family
Law Section of the New Jersey State Bar Association for the 2009-2010 year. Ms. Murray also serves as
an editor for Dictum, the newsletter for the Young Lawyer’s Division of the New Jersey State Bar
Association.




                                                   10
          Donnelly v. Donnelly, 405 N.J. Super. 117 (App. Div. 2009)

Issue: Did the trial court err in denying the defendant’s application for a decrease

in alimony when the defendant’s income had allegedly decreased substantially

since the divorce?

Holding: No. The trial judge properly measured the alleged change in the

defendant’s income from the filing of his prior Lepis application nine (9) months

earlier and found that it was too soon to determine whether the defendant’s alleged

decrease in income was permanent. The trial judge also properly analyzed other

circumstances, including the defendant’s voluntary increase in expenses and the

defendant’s lavish lifestyle in concluding that the defendant’s alleged decrease in

income was unsubstantiated.

Issue: Did the trial err in relying on facts established at a plenary hearing with

regard to the defendant’s first Lepis Motion to decrease alimony when the

defendant filed a second Lepis Motion only nine (9) months thereafter?

Holding: No. The defendant did not appeal the trial court’s decision as to his first

first Lepis Motion. Therefore, the trial court, as well as the Appellate Division,

was entitled to rely upon the findings of fact established in connection with the

defendant’s first Lepis Motion in deciding an identical Lepis Motion filed by the

defendant only nine (9) months later.




                                         11
Issue: Did the trial court err in failing to require the plaintiff to submit an updated

Case Information Statement in response to the defendant’s application to decrease

his support obligation?

Holding: No. As the defendant failed to make out a prima facie case of changed

circumstances, the plaintiff was not required to submit a Case Information

Statement.

Discussion: The parties were married in 1984 and had three (3) children, ages

nine (9), eight (8), and six (6). A divorce action was commenced in 2003 and a

property settlement agreement was executed on December 10, 2003. The parties

stipulated in the PSA that defendant, an attorney, would pay the plaintiff $1,000

per week in permanent alimony and $350 per week in child support for the three

(3) children. The PSA indicates that support was based on income to the plaintiff

of $20,000.00 per year and income of $185,000.00 per year to the defendant,

based on the defendant’s average income from 1998-2002 as determined by a joint

expert as follows:

              1998           $301,705
              1999           $219,167
              2000           $184,983
              2001           $165,452
              2002           $130,000

       In 2005, the defendant filed a Notice of Motion for a reduction in his

support obligations, claiming he was not earning at the $185,000 level. In his

certification, the defendant criticized the expert utilized in connection with the

divorce for not taking into account the steady decrease in his income from 1999


                                          12
through 2002, arguing that 1998 and 1999 were banner years and represented the

highest income he ever achieved. The defendant argued that his income continued

to decrease each year after 1999 and continuing after the divorce due to increased

competition; rising office expenses and a decrease in gross income. The defendant

claimed that the decrease in gross income was due to a marked decline in the

personal injury and real estate practice. The defendant argued that by 2004, his

income had decreased to $97,983.00 and that after paying alimony and child

support, he was running a significant deficit. The defendant claimed he borrowed

in excess of $130,000 to meet his obligations.

       The trial judge ordered a plenary hearing, giving the parties an opportunity

to first engage in pre-trial discovery. At the conclusion of the hearing in

December 2006, the judge denied the defendant’s Motion for a decrease in

support. In his written decision, the judge held the following:

       During this period of time that [the defendant] claims that his
       income has drastically reduced, he within a very short period of time
       after the [j]udgment of [d]ivorce, traded in a 2003 Lexus automobile
       for a 2004 model at a cost of $58,000.00. He also sold a property in
       Pines Lake, and used part of the proceeds to pay down a *123 line of
       credit by $90,000.00 and then bought a new home for $785,000.00
       also in Wayne. In doing so he took a mortgage in excess of
       $600,000.00, all at the same time he claims that he was earning
       approximately $80,000.00 for the year. Just before this hearing, [the
       defendant] remarried and spent approximately $15,000.00 between
       his wedding and honeymoon.

       In light of these circumstances and the information contained in the

defendant’s September 2006 case information statement, the judge viewed the

defendant’s income as being in the range of $140,000.00 for the year. The judge


                                         13
also rejected the defendant’s claim that he was indebted to the Internal Revenue

Service in the amount of $55,000 because the defendant failed to provide any

documentation to support that assertion. In addition, the judge found no proof to

support the defendant’s claims about his practice's deteriorating case load. The

judge held that the defendant’s testimony, which was the only evidence provided

to establish the law firm's performance, was “unconvincing” and the defendant’s

testimony that he was unable to support the marital standard of living was

“incredulous.” The judge also referred to Larbig v. Larbig, 384 N.J. Super. 17

(App. Div. 2006), and held he was “not convinced” that the defendant’s alleged

decline in business “is of [a] permanent nature which inhibits his ability to sustain

himself as well as child support and alimony payments” in the amount stipulated

in the PSA. An Order denying the defendant’s Motion was entered on January 10,

2007.

        The defendant did not appeal the January 10, 2007 Order. Instead, the

defendant filed another Motion for downward modification of his support

obligations approximately nine (9) months later. In that Motion, the defendant

again asserted that his law practice was not doing well. The defendant also argued

that he had earned only $38,700.00 through September 2007 and predicted that he

would earn no more than $50,000.00 for the year. The defendant also indicated he

had sold his interest in the law firm's building to his partner for $175,000.

Although the defendant suggested the sale evidenced his deteriorating ability to

pay support, this transaction actually improved the defendant’s financial situation,


                                          14
as it eliminated the substantial annual costs to maintain the building and freed up

cash flow for the defendant. Moreover, the defendant’s Case Information

Statement reflected that the defendant spent $11,354 per month on his shelter,

transportation and personal needs, revealing no effort to modify his lifestyle.

       After oral argument on the defendant’s Motion, the trial judge again denied

the defendant’s Motion. In denying the defendant’s Motion, the trial judge noted

that he was particularly troubled by the fact that since the filing of the defendant’s

original motion in 2004, the defendant had chosen to take on greater financial

obligations than would be reasonable if his earnings were steadily dwindling. The

defendant appealed, arguing that the trial court erred in 1) failing to find that the

defendant had made out a prima facie showing of changed circumstances; 2)

measuring the change in the defendant’s income against his income from the year

prior to the divorce, as opposed to the $185,000.00 utilized to establish support; 3)

failing to recognize the impossibility of performance by the defendant based on his

current earnings; 4) failing to require plaintiff to submit an updated CIS; 5) failing

to impute additional income to the plaintiff based on her prior work experience.

       The Appellate Division rejected all of the defendant’s arguments and

affirmed the trial court’s decision. The Appellate Court first held that the trial

court properly followed the proper procedure, as provided under court rules, in

determining Lepis applications. The court also held that the court, while it

undoubtedly held a commitment to its prior findings of fact, was provided no

reason by the defendant not to rely upon those findings. Indeed, the court held


                                          15
that because those earlier findings were based upon the judge's examination of the

evidence and assessment of the witnesses' credibility-and were not challenged on

appeal-they were entitled to continued weight in the trial court in subsequent

proceedings and by the Appellate Division on appeal. Additionally, the court held

that the trial court properly determined that defendant’s application to a decrease

in support as a result of alleged decrease income was subject to the analysis set

forth under Larbig and that such an analysis mandated a denial of the motion:

       As we have already indicated, the judge was not required to wipe the
       slate clean and consider a similar contention regarding [the
       defendant’s] earnings less than one year after the prior order as if the
       earlier hearing had never occurred. To the contrary, the judge was
       required to consider not whether there was a substantial change since
       the 2003 PSA but whether there was a substantial change since he
       rendered his fact findings in December 2006.

       The court reasoned that in this case, the trial judge had a full understanding

of the past circumstances, having not only presided over the divorce trial but also

having heard the defendant’s earlier Lepis motion, conducting a multi-day hearing

on that issue and making findings of fact which had on the allegations made in the

defendant’s second Lepis Motion. The court also agreed with the trial judge that

the defendant’s income was only part of the overall circumstances he was required

to consider in determining whether the defendant met the burden of demonstrating

a prima facie case of changed circumstances. Specifically, the court found that the

trial judge had correctly recognized that despite the defendant’s alleged decrease

in income, he had nonetheless taken on considerable additional debt and had

adopted a lavish lifestyle inconsistent with the way his law practice was allegedly


                                         16
trending. The court also noted that the trial court found that the defendant failed to

explain what he had done to better his allegedly deteriorating law practice.

Moreover, the court agreed with the trial court’s determination that the plaintiff

was not required to file a Case Information Statement because the defendant failed

to make out a prima facie case of changed circumstances.

Observation: The behavior of the litigant must be congruent with the application

before the tribunal. Regardless of how legitimate your client’s decrease in income

is professed to be, an application to reduce support will lose any chance of success

if the applicant cannot show that his or her own lifestyle has been affected by the

alleged change in circumstances. Cries of poverty will fall on deaf ears when the

professed pauper recently purchased a new Mercedes, continues to spend

thousands of dollars each week at the country club, and is scheduled for a two (2)

week cruise of the Mediterranean. Practitioners must ensure that their client’s

Certification for a reduction in support provides as much detail as possible

regarding negative changes to the applicant’s own lifestyle, which would go hand

in hand with a reduction in income. Has the applicant had to list his home for

sale? Give up family vacations? Pack lunch, as opposed to eating out? Forgo

household repairs and regular automobile maintenance? Increase deficit spending

and credit card debt? Payors must demonstrate with specificity that they will be

sharing in the burden occasioned by economic hardship.

       The litigant went at this procedurally in the wrong way. Keep in mind this

application was filed only months after the litigant lost a plenary hearing for


                                         17
changed circumstances – and did not appeal. The answer may have been to appeal

the plenary hearing result or in the alternative, put the Wife on notice of his

continued financial downturn and wait for sufficient time to pass before renewing

his application.

       Would the case have been decided differently – notwithstanding the

litigant’s behavior – had he been a W-2 wage earner? Here the litigant was self-

employed and so his true income was disputed. Therefore, his conduct undercut

his claims of reduced income. Keep in mind that persons who are self-employed

face greater scrutiny as to their income.

       This litigant had a declining income in each of the five (5) years which

preceded his divorce. Therefore, he was not earning $185,000.00 (the five (5)

year average of his income) at the time the Agreement was made. Perhaps this

was a bad Agreement which doomed this litigant’s later application. Or perhaps

the numbers recited in the Agreement were not reliable.




                                            18
             Kennedy v. Plan Administrator for DuPont Savings and
                 Investment Plan, et. al., 129 S. Ct. 865 (2009)

Issue: Did a wife effectively waive her interest in her deceased husband’s ERISA

governed retirement plan if the husband named the wife as beneficiary during the

marriage, the wife waived her interest in the plan pursuant to the parties’ divorce

decree, but the husband never thereafter changed the beneficiary of the plan?

Holding: No. As the beneficiary designation was never changed by the husband

prior to his death, the plan administrator properly released the retirement plan

funds to the wife pursuant to the terms of ERISA, which do not allow for

interpretation of the plan holder’s intent.

Discussion: In 1971, the husband and wife were married, and in 1974, the

husband signed a form designating the wife to take benefits under his savings and

investment retirement plan (SIP), a retirement plan governed by ERISA. No

contingent beneficiary was named. In 1994, the parties divorced, and the wife

waived all interest and claim to any “retirement plan, pension plan, or life benefit

program existing by reason of [the husband’s] past or present or future

employment.” The husband did not, however, execute any documents to remove

the wife as beneficiary of his SIP.

       In 2001, the husband died, and the husband’s daughter, Executrix of his

Estate, sought to have the husband’s SIP distributed to the Estate. The company,

however, paid the balance of the SIP, $400,000.00, to the wife, pursuant to the

terms of the designation of beneficiary form signed by the husband. The estate



                                          19
sued the company and the SIP plan administrator, claiming that the divorce decree

served as a waiver of the wife’s interest in the SIP and that the company had

violated ERISA by paying the benefits to the wife.

       The district court entered summary judgment for the estate and ordered the

company to pay the value of the SIP benefits. The court relied on Fifth Circuit

precedent establishing that a beneficiary can waive his or her rights to the

proceeds of a ERISA plan. On appeal, however, the Fifth Circuit Court of

Appeals reversed, distinguishing prior decisions as those that date with waivers in

life insurance policies which do not contain provisions prohibiting the assignment

or alienation of one’s interest. The Court of Appeals held that the wife’s waiver in

the SIP at the time of the divorce constituted an assignment or alienation of her

interest in the SIP and, therefore, could not be honored. The Court of Appeals

relied heavily on the requirement under ERISA for entry of a Qualified Domestic

Relations Order to effectuate the transfer or alienation of an interest in a ERISA

governed retirement plan. As the Kennedy’s divorce decree was not a QDRO, it

did not validly give effect to the wife’s waiver in the SIP.

       The Supreme Court affirmed the Court of Appeals decision, but on

different grounds. Contrary to the holding of the Court of Appeals, the Court held

that the wife’s waiver of her interest in the SIP in the divorce decree did not

constitute an assignment or alienation of the wife’s interest in the SIP because the

wife did not attempt to direct her interest in the SIP benefits to the Estate or any

other potential beneficiary. However, the Court held that the plan administrator


                                          20
nonetheless acted appropriately by releasing the SIP funds to the wife because

ERISA provides no exception to the plan administrator’s duty to act in accordance

with plan documents. The Court held that ERISA forecloses any justification for

inquiries into expressions of intent in favor of adhering to an uncomplicated rule.

The Court reasoned that less certain rules would force plan administrators to

examine numerous external documents purporting to be waivers and draw them

into litigation over those waivers’ meanings and enforceability. While the Court

recognized that a QDRO’s enforceability may require an administrator to look for

beneficiaries outside of the plan, a QDRO inquiry is limited, given its specific and

objective criteria. Under the circumstances, the Court held that the plan

administrator properly released the funds to the designated beneficiary, the wife.

Observation: The Kennedy case makes clear that a spouse’s waiver of a pension

in a Final Judgment of Divorce will not trump the beneficiary designation. Rather,

the employed spouse must take the appropriate steps to change the beneficiary.

Practitioners beware. In cases with pensions, life insurance policies, and other

financial vehicles--wherein a spouse may be named as a beneficiary--the client

must be advised to take precautionary measures after the divorce to ensure that the

situation which occurred in Kennedy does not happen to them.

       In the event a spouse is waiving his or her right to an interest in the other

spouse’s pension, the Settlement Agreement should make clear that the waiving

spouse will cooperate in signing any and all documentation necessary to effectuate

a change in beneficiary. If possible, any documents necessary to effectuate a


                                          21
change in beneficiary should be prepared and executed at the same time as the

Settlement Agreement to prevent problems with compliance in the future.




                                       22
         Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340 (App. Div. 2009)

Issue: Did the trial court err in decreasing the husband’s weekly limited duration

alimony amount but expanding the term from five (5) years to 17 years when the

record suggested that the wife was earning substantially in excess of what she was

earning at the time of the divorce and that the husband was involuntarily

terminated from his employment, forced to relocate to Argentina and was earning

income insufficient to cover his own needs?

Holding: Yes. Pursuant to N.J.S.A. 2A:34-23, limited duration alimony terms

should not be modified absent a showing of “unusual circumstances”. In this case,

the husband’s decreased income was typical of the usual Lepis case where a

modification of support is warranted. Moreover, the husband’s decreased income

and the wife’s increased ability to support herself could suggest that a termination

of alimony was warranted.

Discussion: The parties, Argentinean citizens, married in Argentina in 1995 and

had three (3) children, all born in Argentina. After the birth of their youngest

daughter in 1998, the parties moved to New Jersey after the husband, a lawyer,

obtained his work visa. The husband obtained employment as an associate at a

New York law firm. At the time of the parties’ separation in 2005, the husband

was working for DirecTV Latin America.

       In April 2005, the wife filed for divorce, and on January 23, 2006, the

parties entered into a Property Settlement Agreement (PSA). Pursuant to the PSA,

the husband agreed to pay limited duration alimony to the wife in the amount of


                                         23
$500.00 per week for three (3) years and, thereafter, to pay $442.40 for the next

two (2) years. The husband also agreed to pay child support in the amount of

$446.00 per week. The husband’s support obligations were based on the

husband’s 2005 salary of $150,000.00 and the wife’s 2005 salary of $21,000.00.

The parties were divorced on January 25, 2006.

       Only ten (10) days before the parties entered into the PSA, the husband

received a lay-off notice from DirecTV, advising him of his termination effective

January 27, 2006. As a result of this layoff notice, DirecTV also withdrew its

petition for a Labor Certification resulting in the immediate invalidation of the

husband’s work visa. The husband was therefore required to leave the United

States and return to Argentina.

       Upon his return to Argentina, the husband obtained part-time employment

as in-house counsel in various Argentinean companies. In 2006, the husband

earned total income of $9,378.00 in US dollars. The husband obtained full-time

employment in December 2006, where his salary increased to $26,000.00 per year

in US dollars.

       In October 2006, the husband filed an application with the Family Part to

terminate alimony and to reduce his child support obligation based on his forced

departure from the United States and his decreased income. The wife opposed the

motion, arguing that the husband orchestrated his return to Argentina to avoid

support payments. After a 13 day plenary hearing, the trial judge found that “there

was no evidence to support [wife’s] contention that [husband’s] termination from


                                         24
DirecTV was voluntary, or that he had deliberately orchestrated his return to

Argentina in order to evade his financial responsibilities as set forth in the parties’

[PSA].” The judge also determined that the husband’s income equaled

approximately $2,295.00 US dollars per month. The judge reduced the husband’s

child support obligation, pursuant to the Child Support Guidelines, to $144.00 per

week. As to alimony, the judge reduced the husband’s weekly alimony obligation

to $100.00 per week. However, the judge extended the alimony term to 17 years

so as to leave the aggregate amount of alimony paid by the husband to the wife the

same amount bargained for under the PSA. In modifying the alimony term, the

trial judge found “unusual circumstances” as required under N.J.S.A. 2A:34-23,

warranting the modification of the alimony term.

       The husband appealed the trial court’s decision, arguing that the trial court

erred in failing to terminate alimony and by effectively converting his limited

spousal support obligation into a permanent one. The wife appealed the reduction

in child support and alimony.

       The Appellate Division, giving deference to the trial court’s findings of fact

as to the involuntariness of the husband’s termination from DirecTV and his

relocation back to Argentina, held that there was “ample support for the judge’s

determination of an involuntary and substantial change in circumstances.” As to

the reduction in child support, the Appellate Division held that the trial judge

based its determination of the husband’s current income on substantial and

credible evidence. The trial judge thereafter properly recalculated child support


                                          25
based on the Child Support Guidelines. Under the circumstances, the trial court’s

decision in this regard should not be disturbed.

       As to alimony, the Appellate Division held that the trial court erred in its

decision as follows: 1) in denying the husband’s request for termination, the judge

miscalculated both the wife’s increased income and the husband’s legitimate

living expenses; 2) in extending the durational time, the judge failed to articulate

why the heightened statutory standard of “unusual circumstances” had been

satisfied or why the purpose of the original arrangement could not be fulfilled.

       The Appellate Division noted that the trial judge failed to reconcile

inconsistencies in the record with regard to the wife’s actual income. Specifically,

the trial judge determined the wife’s income to be $530.00 per week ($27,560.00

per year). However, evidence suggested she earned in excess of $36,000.00 in

2005. Additionally, the wife claimed over $53,000.00 in wages, exclusive of

alimony in 2007, and over $58,000.00 in total income. Under the circumstances,

the Appellate Division held that the $530.00 utilized by the trial court in

determining whether to terminate alimony lacked sufficient support in the record.

Additionally, the Appellate Division held that the trial court failed to explain its

estimate of the husband’s living expenses at under 2000 pesos per month, when

his CIS represented that his expenses were 3500 pesos per month, which, when

added to his support obligations, exceeded 8700 pesos per month. The court noted

that the husband’s expenses of over 8700 per month, exceeded his income of 7000

pesos per month. The Appellate Division held that the trial court’s failure to


                                          26
reconcile its finding as to the husband’s expenses with the record was reversible

error.

         The Appellate Division also held that the trial court erred in misapplying

the principles of limited duration alimony. The Appellate Division held that there

is a presumption that the temporal aspect of a limited duration alimony award is to

be preserved. Thus, pursuant to N.J.S.A. 2A:34-23(c) before modifying the length

of the term of a limited duration alimony award, a heightened statutory standard of

“unusual circumstances” must be met.

         The Appellate Division held that the trial court’s decision to lower the

husband’s alimony payment but to extend the term to 17 years “contravene[d] the

specific need for, and purpose of, limited duration alimony.” Moreover, the

Appellate Division held that the trial court’s decision to expand the term of

alimony was not supported “by any articulated, sustainable reason, much less

‘unusual circumstances.’” Rather, the Appellate Division found that the husband’s

changed circumstances were no more than the usual case of diminished earning

capacity and, therefore, fell short of the heightened statutory standard required to

expand the agreed upon term.

         The Appellate Division reversed the trial court’s decision as to alimony and

remanded the case, with specific directions that the trial judge consider the

continuing need for limited duration alimony, or its modification, applying the

unusual circumstances standard. The Appellate Division also held that in the

event limited duration alimony was continued, the trial judge must base the


                                           27
amount of alimony on all relevant statutory factors, including the husband’s ability

to pay and the wife’s need.

Observation: This case reminds practitioners that the standard for modifying the

amount of limited duration alimony is far less stringent than the standard for

modifying the duration of limited duration alimony. While the amount of alimony

may be modified upon a showing of “changed circumstances”, the term of

alimony will not be modified except in the case of “unusual circumstance.” This

heightened standard comes from the statute. Practitioners should be mindful that

the intention of limited duration alimony is to provide the dependent spouse—

generally in short to mid-length marriages—with support in recognition of his or

her contributions to the marriage over a fixed period of time.

       The trial court converted a five (5) year limited duration award to an

alimony award of nearly two (2) decades in an effort to give the husband

immediate relief while, at the same time, ensuring that the wife would be made

whole overtime. The Appellate Division found this to be an inappropriate

extension of the alimony term. In this case, the length of the marriage was ten

(10) years. Some courts have considered that duration sufficient for an award of

permanent alimony. Hughes v. Hughes, 311 N.J. Super. 15 (App. Div. 1998).

Here, the parties consented to limited duration alimony. Perhaps these facts led

the trial judge to look at the limited duration alimony award in a contractual

context, thereby reducing the annual payment but extending the term.




                                         28
                Kay v. Kay, 405 N.J. Super. 278 ( App. Div. 2009),

                      aff’d ___ N.J. ___ (2010) (per curiam)

Issue: In the event a spouse dies during the pendency of a divorce action, is the

estate of that spouse barred from filing an application for equitable remedies

against the surviving spouse relating to the distribution of property which would

otherwise have been subject to equitable distribution?

Holding: No. The estate of a spouse who died while an action for divorce is pending is

entitled to file a claim against the surviving spouse for equitable relief under principles of

constructive trust and quasi-contract, so as to prevent unjust enrichment to the surviving

spouse.

Discussion: The parties were married in 1973. This was a second marriage for both

parties. No children were born of the marriage, but both parties had children from their

prior marriages. In July 2006, the plaintiff-wife filed a complaint for divorce, and the

husband filed an answer and counterclaim in October 2006. At that time, the wife was 70

years old, and the husband was 83 years of age.

       On May 9, 2007, the court entered an order prohibiting the dissipation of marital

assets and setting discovery deadlines. In the course of discovery, the husband disclosed

that the parties had joint assets totaling $99,000.00; assets of $50,000.00 in his sole name;

and assets of $650,000.00 in the wife’s sole name. The contention was that the wife had

systematically diverted marital accounts into her sole name.

       On August 30, 2007, the husband died. His Will included specific bequests to his

grandchildren and his nephew and devised the remainder of his estate to his brother. On


                                          29
September 27, 2007, the wife submitted a stipulation dismissing the divorce, which was

not signed by the husband’s attorney. The wife then transferred the joint accounts into

her name. The estate of the deceased spouse sought to file an action for equitable claims

against the surviving spouse and the marital estate to recover assets.

       The court started its analysis with the premise, established in the case of Carr v.

Carr, 120 N.J. 336 (1990), that when one spouse dies during the pendency of an action

for divorce, the action is abated and statutory equitable distribution under N.J.S.A. 2A:24-

23.1 is unavailable. Notwithstanding this fact, the court held that the equitable

distribution statute does not reflect a legislative intent to extinguish property entitlements

in the event of one spouse’s death. Moreover, quoting Carr, the court held that “marital

property does not lose its essential and distinctive nature as property arising from the

joint contributions of both spouses during the marriage because of the death of one

spouse during the pendency of divorce proceedings.” Carr at 349-50. The court relied

upon the Supreme Court’s holding in Carr that “upon a sufficient evidentiary showing,”

courts should invoke equitable remedies “to avoid the unjust enrichment that would occur

if the marital property devolving to [a decedent-spouses’ estate] included the share

beneficially belonging to the surviving spouse.” Id. at 353-354.

       The Kay court distinguished the facts of this case from Carr. In Carr, the husband

died with all the assets and the surviving wife had to sue the estate under equitable

remedies. Here, the estate is suing the surviving spouse-wife, as she retained most of the

assets of the marriage. Is an estate entitled to the same equitable remedies as a surviving

spouse? The court held that the same principles of equitable remedy should apply so that


                                          30
the estate can assert equitable claims against the surviving spouse. The court held that

“nothing about the nature of the equitable remedies applied in Carr warrants automatic

rejection of claims asserted by the estate of a decedent spouse.”

       The court held that public policy would be disserved if courts were to

automatically foreclose equitable claims concerning marital property presented by the

estate of a deceased spouse. Under the circumstances, the court held that “when the

estate of a spouse who died while an action for divorce is pending presents a claim for

equitable relief related to marital property, the court may not refuse to consider the

equities arising from the facts of that case solely on the ground that the estate may not

assert equitable claims against the marital estate sounding in constructive trust, resulting

trust, quasi-contract or unjust enrichment.” The court did not, however, establish the

extent of the equitable remedies available to the estate if it was able to establish the facts

alleged. The Appellate Division reversed and remanded the matter for further

proceedings consistent with its opinion.

Observation: Think of Kay as the flip side of Carr. Carr made clear that equitable

remedies are available for a surviving spouse against the estate of a spouse who dies

during the pendency of a divorce action. In Carr, the estate took most of the assets

under probate law and the Supreme Court found that despite the death, the surviving

spouse had equitable remedies to go after the estate. Kay makes clear that these same

equitable remedies are available in claims by the estate against the surviving spouse

wherein the surviving spouse will retain an inequitable portion of the marital estate.




                                           31
       We often think of pre-nuptial agreements in the context of a divorce alone.

But originally (when divorce was rare), pre-nuptial agreements were primarily

designed to address the rights of the parties in the event of death. Especially, here

when “May marries December” and each has separate families from a prior

relationship, a pre-nuptial agreement would appear to be advisable.

       Some practitioners will tell you that title is not relevant when it comes to

divorce law. If the asset is acquired during the marriage, it will be subject to equitable

distribution regardless of title. Not true. Title represents control, which can often be

very important. In the event of death (such as in Carr and Kay), title can result in

ultimate ownership.

       Is it fair to afford the estate and heirs who are complete strangers to the

marriage the same equitable rights as a surviving spouse who contributed to the

acquisition of marital assets? One jurist (Judge Kraft) that considered this issue came

to a different conclusion than Kay. See Krudzlo v. Krudzlo, 251 N.J. Super. 70 (Ch.

Div. 1990).

       In a per curiam opinion, the Supreme Court recently affirmed Kay for

substantially the reasons expressed by Judge Grall, who authored the Appellate

Division’s decision. In doing so, the Supreme Court again invited the legislature to

weigh in regarding these “black hole” cases and the intersection of estate law and

family law.




                                          32
                    Crespo v. Crespo, 408 N.J. Super. 25 (App. Div.),
                       appeal granted 200 N.J. 468 (2009)

Issue: Is the Prevention of Domestic Violence Act unconstitutional because it

allows for the legislature to intrude upon the exclusive power of the courts to make

rules governing the court system?

Holding: No. Although the legislature has promulgated certain guidelines for the

courts to follow in administrating the Prevention of Domestic Violence Act, the

Supreme Court has adopted and implemented those guidelines and promulgated a

Domestic Violence Manual embracing and enhancing those Guidelines.

Issue: Is the Prevention of Domestic Violence Act unconstitutional because it

calls for a preponderance of the evidence standard as opposed to a clear and

convincing standard?

Holding: No. In Roe v. Roe, 253 N.J. Super. 418 (App. Div.1992), the Appellate

Division previously determined that the preponderance standard passed

constitutional muster. The preponderance standard “better serves the purpose of

the Act in protecting victims of domestic violence” because allegations of

domestic violence are often “difficult to prove due to the[ir] private nature,” and

there are “usually few, if any, eyewitnesses to marital discord or domestic

violence.”

Issue: Is the Prevention of Domestic Violence Act unconstitutional because it

allows for the seizure of a defendant's firearms upon a finding of domestic

violence?



                                         33
Holding: No. The Supreme Court in Presser v. Illinois, 116 U.S. 252 (1886) held

that the Second Amendment is “a limitation only upon the power of Congress and

the National government, and not upon that of the States.” The decision in

District of Columbia v. Heller, 128 S. Ct. 2783 (2008) did not alter the view

expressed in Presser and other decisions that the Second Amendment poses no

limits on the states. Moreover, Heller should not be taken ‘“to cast doubt on

longstanding prohibitions on the possession of firearms by felons and the mentally

ill, or laws forbidding the carrying of firearms in sensitive places such as schools

and government buildings, or laws imposing conditions and qualifications on the

commercial sale of arms.”’

Issue: Is the Prevention of Domestic Violence Act unconstitutional because it

requires a final hearing within ten (10) days of the filing of the complaint?

Holding: No. the Supreme Court in H.E.S. v. J.C.S. 175 N.J. 309 (2003) already

found that the ten (10) day provision comports with the requirements of due

process. Where in this case, the final hearing did not take place until twenty-three

(23) days after the complaint was filed, the defendant was provided with more

than sufficient time to respond to the complaint. Moreover, the defendant was not

prejudiced by his inability to depose plaintiff or obtain other discovery, as

domestic violence actions are “summary actions,” a fact that inherently precludes

the right to discovery.




                                          34
Issue: Is the Prevention of Domestic Violence Act unconstitutional because it

fails to guarantee a right to counsel?

Holding: Maybe. However, in this case, where the defendant never sought the

appointment of counsel, the issue is not properly before the court.

Issue: Is the Prevention of Domestic Violence Act unconstitutional because it

fails to allow for a jury trial?

Holding: No. The right to a jury trial in New Jersey is constitutionally required

only if expressly permitted by the Legislature or if the right existed at common

law when the constitution was adopted. The Act does not grant a right to counsel.

Moreover, because the nature of the relief sought is an injunction—an equitable

remedy— the right to a trial by jury would not have existed at common law.

Discussion: The parties were married in 1984 and divorced in 2001. Despite the

divorce, they continued to inhabit the same two-family house, with the plaintiff

residing on the first floor with the children, and the defendant living on the second

floor with his parents. In 2004, after a dispute over child support, plaintiff

obtained a temporary restraining order (TRO) against the defendant. Subsequently

after a two-day trial, the judge entered a final restraining order (FRO) in the

plaintiff's favor. The defendant appealed, and the Appellate Division affirmed.

       In June 2007 the defendant moved before a different judge to vacate the

FRO, asserting the unconstitutionality of the Prevention of Domestic Violence Act

(the Act). The defendant argued that the Act converted what ought to be a

criminal prosecution into a civil proceeding, thus depriving the parties of their


                                          35
right to a jury trial. Additionally, defendant argued that the Act denied him due

process by failing to provide sufficient notice prior to the final hearing, by

applying a preponderance standard instead of a clear-and-convincing standard, and

by failing to permit discovery or a right to counsel. By way of his written opinion

of June 18, 2008, the trial judge found the Act unconstitutional and vacated the

FRO. The Appellate Division agreed that, despite the defendant waiting two (2)

years to attack the Act's constitutionality, his arguments could still be considered

because he remained subject to the FRO.

       The Appellate Division first addressed separation of powers and the scope

of the court’s rulemaking power. The court held that pursuant to the New Jersey

Constitution, “[t]he Supreme Court shall make rules governing the administration

of all courts in the State and, subject to the law, the practice and procedure in all

such courts.” However, the court held that the separation of powers doctrine is

not intended to create completely exclusive spheres of authority. Rather,

“separation of powers denotes not only independence but also interdependence

among the branches of government.” Under the circumstances, the court held that

in determining the constitutionality of procedures proposed implemented by the

legislature, “the question is not whether the Legislature has created procedures to

be applied in our courts but whether those procedures contradict or inhibit the

functioning of the courts.”

       The court held that New Jersey courts utilize the following two-pronged

test to determine whether to tolerate intrusions on its exclusive power to define


                                          36
court procedures: 1) First, the court determines whether the Judiciary “has fully

exercised its power with respect to the matter at issue”; and 2) If not, the court

then considers “whether the statute serves a legitimate legislative goal, and,

‘concomitantly, does not interfere with judicial prerogatives or only indirectly or

incidentally touches upon the judicial domain.’’’ (citations omitted).

       The court noted that the Act has certain procedural guidelines, providing

direction for, among other things, a) the setting and reducing of bail; b) the manner

in which a court order shall be recorded and who must receive the order; c) the

requirements imposed upon a party seeking relief from an order; d) the particular

part of the superior court to hear such cases; and e) the period within which a final

hearing must occur. The court held that the Court, as opposed to finding these

procedural guidelines as an intrusion upon the Court’s power, adopted these rules

under R. 5:7A and through the issuance of the State's Domestic Violence

Procedures Manual. Indeed, the Appellate Division found that the Supreme Court

has embraced and enhanced the procedural components promulgated by the

legislature. Under the circumstances, the Appellate Division rejected the

defendant’s argument that the procedural aspects of the Act are unconstitutional.

       The Appellate Division also rejected the defendant’s argument that the

Prevention of Domestic Violence Act violated his due process rights in providing

for a preponderance of evidence standard. The court held that in considering

whether the adoption of a particular burden of persuasion adheres to state

constitutional due process principles, the Supreme Court has followed a balancing


                                          37
test (as set forth in Mathews v. Eldridge, 424 U.S. 319 (1976)), which requires

consideration of three (3) factors: a) first, the private interest that will be affected

by the official action; b) second, the risk of an erroneous deprivation of such

interest through the procedures used, and the probable value, if any, of additional

or substitute procedural safeguards; 3) and the government's interest, including the

function involved and the fiscal and administrative burdens that the additional or

substitute procedural requirement would entail.

       In rejecting the trial court’s holding of the Act’s preponderance of evidence

standard as unconstitutional, the court noted that the trial judge wrongly ignored

the precedent of Roe v. Roe, 253 N.J.Super. 418 (App. Div. 1992), at which time

the court held that the Act was not required to impose a reasonable-doubt standard.

The court held that although Roe dealt with whether a reasonable-doubt standard is

required, Roe was nonetheless binding in this case, as the court in Roe found that

that the preponderance standard, which was attacked in this case met constitutional

muster. The court quoted the court’s holding in Roe, wherein it held that the

preponderance standard “better serves the purpose of the Act in protecting victims

of domestic violence” because allegations of domestic violence are often “difficult

to prove due to the[ir] private nature,” and there are “usually few, if any,

eyewitnesses to marital discord or domestic violence.” The court held that in Roe

the court recognized the “vindication of the Act's important goals often depends

upon the ability of a victim to obtain relief in situations where proof is scarce,




                                           38
parties' contentions are in sharp contrast, and a judge may often be relegated to

deciding the case based solely on credibility findings.”

       The court held that the trial judge was bound by the Roe decision.

However, notwithstanding the binding effect of Roe, the court went on to hold that

regardless of Roe, it would still conclude that the preponderance of evidence

standard conforms with the requirements of due process as analyzed under the

Mathews three (3) part test. The court noted that domestic violence actions

naturally pit the first and third Mathews factors, that is, victims' interests in being

protected from domestic violence against defendants' liberty interests in being free

to say what they wish and go where they please. The court reasoned that a review

of the Act and its purpose in deterring domestic violence makes clear that the

Legislature viewed the victims' interests as highly important and of far greater

weight than defendants' interests. Under the circumstances, the court held that

there was a “strong societal interest in protecting persons victimized by domestic

violence [which] greatly favors utilization of the preponderance standard.” The

court held that the defendant’s interest in not being barred from the victim’s

residence is of far less importance than the societal interest in preventing domestic

violence and the victim’s interest in remaining safe from harm.

       As to the second Mathews factor, the court held that the preponderance of

evidence standard would not lead to erroneous adjudications, nor would it erode

public confidence in the ability of the courts to produce fair determinations.

Relying on Roe, the court recognized that “[t]here are usually few, if any,


                                           39
eyewitnesses to marital discord or domestic violence.” Under the circumstances,

“[m]ost of the events complained of in such matters happen behind closed doors or

during private communications; as a result, most cases turn only on the trial

judge's assessment of the credibility of only two witnesses-the plaintiff and the

defendant.” The court held that the legislature understood that a clear-and-

convincing standard would saddle victims of domestic violence with a burden that

would often foreclose relief in many deserving cases, as with no evidence to

corroborate his or her testimony, the plaintiff would great difficulty sustaining the

clear and convincing evidence standard, which requires the plaintiff to provide

evidence which is ‘“so clear, direct and weighty and convincing as to enable [the

factfinder] to come to a clear conviction, without hesitancy, of the precise facts in

issue.”’ (citations omitted). Moreover, the court held that the fact-finding required

of Family Part judges in Domestic Violence cases, where no specialized

knowledge is required, is far different than those matters in which the issues are so

unusual that the clear and convincing standard is required.

       The court next rejected the defendant’s argument that the Act interfered

with his right to speak freely with his children. The court held that the Act allows

the court to fix a visitation schedule, but in no way takes away his right to

communicate with his children.

       The court next rejected the defendant's argument that by allowing the

seizure of a defendant's firearms upon a finding of domestic violence, the Act

permits a deprivation of an individual's Second Amendment right to bear arms.


                                          40
The court noted that the Supreme Court has held that the Second Amendment is “a

limitation only upon the power of Congress and the National government, and not

upon that of the States.” Presser v. Illinois, 116 U.S. 252 (1886). The court held

that the decision in District of Columbia v. Heller, 128 S. Ct. 2783 (2008) did not

alter the view expressed in Presser and other decisions that the Second

Amendment poses no limits on the states. Moreover, the court held that even

assuming otherwise, Heller in no way holds that the individual rights guaranteed

by the Second Amendment are absolute or unlimited. Rather, the Heller majority

emphasized that the Heller should not be taken “to cast doubt on longstanding

prohibitions on the possession of firearms by felons and the mentally ill, or laws

forbidding the carrying of firearms in sensitive places such as schools and

government buildings, or laws imposing conditions and qualifications on the

commercial sale of arms.” Id. The court in this case held that in light of the Heller

majority's express description of the limitations on its holding, it had no cause to

assume that Heller in any way interferes with the Legislature's declaration that a

person found to have committed an act of domestic violence may be subjected to a

weapons seizure. The court stated that absent a clear and binding announcement

from the Supreme Court of the United States to the contrary, the Act's prohibition

on the possession of firearms by a person found to have committed domestic

violence is a valid, appropriate and sensible limitation on an individual's Second

Amendment rights.




                                          41
         The court next rejected the defendant’s argument that the Act’s requirement

that a final hearing be held within ten days of the filing of the complaint deprived

him of due process. The court held that this argument was “utterly without merit,”

as the Supreme Court in H.E.S. v. J.C.S. 175 N.J. 309 (2003) already found that

the ten-day provision comports with the requirements of due process. The court

went on to find that in this case, where the final hearing did not take place until

twenty-three (23) days after the complaint was filed, the defendant was provided

with more than sufficient time to respond to the complaint. Moreover, the court

held that the defendant was not prejudiced by his inability to depose plaintiff or

obtain other discovery, as domestic violence actions are “summary actions,” a fact

that inherently precludes the right to discovery.5

         The court next rejected the defendant’s argument that the Act violates due

process rights by failing to guarantee a right to counsel. The court held that there

was no cause to consider the right to counsel in this case, as the defendant in this

case never sought the appointment of counsel prior to or during the adjudication of

this domestic violence matter.

         Finally, the court rejected the defendant’s argument that he was entitled to a

trial by jury in this matter. The court held that the right to a jury trial in this State

is constitutionally required only if expressly permitted by the Legislature or if the

right existed at common law when the constitution was adopted. The court noted

5
 However, the Court did note that one trial court has determined that, in accordance with Rule 5:5-1(d), a
defendant may seek leave to obtain discovery in such a matter upon a showing of good cause. Depos v.
Depos, 307 N.J.Super. 396 (Ch.Div.1997).


                                                    42
that the Act does not grant a right to counsel. The court therefore had to look to

whether a domestic violence action would carry the right to a jury at common law,

noting that at common law, actions at law generally carried the right to a trial by

jury, whereas actions in equity did not. The court held that because the nature of

the relief sought is an injunction—an equitable remedy— the right to a trial by

jury would not attach.

Observation: Stay tuned, the Supreme Court has taken this case up on appeal.

While nothing is ever certain, it seems highly unlikely that the Court would

jeopardize the tens of thousands of FRO’s in effect by finding any portion of this

Act unconstitutional.




                                         43
                J.S. v. J.F., 410 N.J. Super. 611 (App. Div. 2009)

Issue: Did the trial court err in finding that the parties were engaged in a “dating

relationship” so as to qualify the plaintiff as a victim under the Prevention of

Domestic Violence Act when the defendant utilized the plaintiff as a paid escort,

but offered contradictory testimony as to the reason for these payments and did not

deny that he made these payments to the plaintiff while “dating” her.

Holding: No, “dating” is a loose term, which is defined differently by members

of different socio-economic groups and from one generation to the next. Courts

should not adhere to a strict formula as to what constitutes a “dating relationship,”

and must consider the parties’ own understanding of their relationship as colored

by socio-economic and generational influences. In this case, the trial court had

ample evidence to support a finding that a dating relationship existed.

Discussion: Plaintiff obtained a Temporary Restraining Order against the

defendant and, after a final hearing, a Final Restraining Order was entered against

the defendant. The defendant appealed, arguing that 1) the parties were not in a

dating relationship; 2) there was no evidence of harassment or terroristic threats;

3) there was no need for a restraining order; 4) and the judge erred by employing a

preponderance-of-the-evidence standard of proof.

       The defendant testified at the final hearing that he and the plaintiff had a

“professional” relationship. The defendant testified that his only interactions with

the plaintiff occurred when the defendant frequented local clubs where the

plaintiff worked as a dancer. The defendant argued that a paid escort does not


                                          44
meet the Act’s definition of “a victim of domestic violence.” The Appellate

Division, however, rejected the defendant’s argument and “the contention that a

relationship which includes a payment of consideration for the other’s time

precludes the finding of a dating relationship.”

         The Appellate Division referred to the 2003 case of Andrews v. Rutherford,

363 N.J. Super. 252 (Ch. Div. 2003), wherein the court suggested various factors

to be evaluated in defining what constitutes a dating relationship for purposes of

the Act.6 While not adopting the Andrews factors as a comprehensive test to be

applied in determining whether a dating relationship exists, the court agreed with

Andrews insofar as it held that the facts should be liberally construed in favor of

finding a dating relationship. The court held that a determination as to whether a

dating relationship exists turn on what the particular parties would view as a

“date.” The court reasoned that “dating” is a loose term, which is defined

differently by members of different socio-economic groups and from one

generation to the next. The Appellate Division held that “courts should vigilantly

guard against slavish adherence to any formula that does not consider the parties’

own understanding of their relationship as colored by socio-economic and

generational influences.”



6
 These factors were as follows: 1) Was there a minimal social interpersonal bonding of the parties over
and above a mere casual fraternization? 2) How long did the alleged dating activities continue prior to the
acts of domestic violence alleged? 3) What were the nature and frequency of the parties’ interactions? 4)
What were the parties’ ongoing expectations with respect to the relationship, either individually or jointly;
5) Did the parties demonstrate an affirmation of their relationship before others by statement or other
conduct? 6) Are there any other reasons unique to the case that support or detract from a finding that a
“dating relationship” exists?


                                                     45
       The court noted that in this case, the defendant testified that the monetary

payments to her were made to help her out financially, not necessarily in exchange

for her services as an escort. Also, upon being questioned by the trial judge as to

whether these payments occurred “during the time you were dating,” the defendant

answered in the affirmative without qualification. Moreover, the defendant’s

testimony with regard to the nature of the parties’ relationship was conflicting,

while the trial judge found the plaintiff’s testimony as to the parties’ dating

relationship to be credible. Under the circumstances, the court held that the trial

judge was justified in his determination that the parties were in a dating

relationship, and that the plaintiff qualified as a victim under the Act.

       The court further held that the trial judge had ample evidence from which to

base his determination that the defendant engaged in multiple acts of domestic

violence. Specifically, the defendant sent numerous text messages to the plaintiff,

in which he threatened physical harm to the plaintiff and her boyfriend. The

defendant also threatened to bring about the plaintiff’s removal from the country.

       The Appellate Division found no merit to the defendant’s argument that

that the trial judge erred by using the preponderance of evidence standard, as

opposed to the clear and convincing evidence standard. The Appellate Division

noted that the defendant relied on the unpublished opinion of Crespo v. Crespo—

wherein the Act was held unconstitutional for its application of the preponderance

standard—however, the trial court’s decision in Crespo was reversed by the

Appellate Division (Crespo v. Crespo, 408 N.J. Super. 25 (App. Div, 2009),


                                          46
wherein the court held that the Legislature is not constitutionally required to

impose a clear-and-convincing standard for the adjudication of domestic violence

matters.

Observation: The Appellate Division adopts an extremely liberal definition of a

“dating relationship” under the theory that public policy favors an expansive

interpretation of the Prevention of Domestic Violence Act. In other words, better

to err on the side of giving a potential victim an avenue for relief—even at the risk

of creating additional litigation—than to exclude a person from relief under the

Act altogether.7

         In this case, the court does not describe in detail the facts upon which the

trial court found that a “dating relationship” existed. However, the facts do

suggest that the relationship was based, at least in part, on the defendant paying

the plaintiff to be his escort. The Appellate Division finds that the fact that the

plaintiff was paid did not exclude the possibility that a dating relationship existed.

         Recently, in an editorial entitled “The Girlfriend Experience”, the New

Jersey Law Journal observed that escort services charge for “some plausible

simulation of an actual social relationship with the customer.” If that is true, could

an internet simulated relationship (in which the parties never have any physical

contact) qualify as a dating relationship for domestic violence purposes?




7
 In dicta the court states that “an au pair or live-in housekeeper would undoubtedly qualify as a person
who is a present or former household member”.


                                                    47
            Houseman v. Dare, 405 N.J. Super. 538 (App. Div. 2009)


Issue: Is an oral agreement between separating individuals as to ownership of a

jointly owned pet subject to specific performance?

Holding: Yes. An oral agreement between separating individuals regarding

ownership of their pet may be subject to specific performance upon a finding that

the pet had a “special sentimental value” to the owner, such that monetary

damages would be inadequate.

Discussion: The plaintiff and defendant had a 13 year relationship. In 1999, they

purchased a residence together, and the following year they were engaged to be

married. In 2003, they purchased a pedigree dog for $1,500.00, which they

registered with the American Kettle Club as joint owners of the dog. In 2006, the

defendant ended the relationship. The parties agreed that the defendant would buy

out the plaintiff’s interest in their home, and in June 2006, the plaintiff moved out

of the residence, taking with her the dog (and the animal’s paraphernalia).

Plaintiff would periodically permit the defendant to have the dog for visitation.

However, in February 2007, after the plaintiff left the dog with the defendant

while she went on vacation, the defendant refused to return the dog to the plaintiff

upon the plaintiff’s return.

       The plaintiff filed a Complaint against the defendant, alleging that she and

the defendant had an oral agreement giving her possession of the dog and that the

defendant breached this agreement by wrongfully retaining the dog. Prior to trial,



                                         48
the court determined that pets are personal property which lack the unique value

essential to an award of specific performance and limited presentation of evidence

about the parties' dog in accordance with its pretrial ruling, foreclosing the

plaintiff’s claim for specific performance.

       The plaintiff testified that from the minute the defendant told her they were

breaking up, he told her she could keep the dog. She also testified that her primary

concern during negotiations with the defendant as to how to divide their property

was possession of the dog and that her retaining the dog was a consideration in her

agreeing to accept $45,000.00 as her share of the equity in the parties’ residence.

Additionally, the plaintiff testified that she asked the defendant to put their

agreement with regard to the dog in writing, but he told her that she could “trust

him and he would not keep the dog from her.” In his Answer to the plaintiff’s

Complaint, the defendant did not deny making this promise.

       At the conclusion of trial, the court found the plaintiff’s testimony to be

“extremely” and “particularly credible.” The court noted that the plaintiff testified

“without guile,” “was truthful” and answered even the “hard questions ... in a way

that would not have been advantageous to her.” On those grounds, the court

accepted her testimony and the trial court therefore held that because the defendant

retained the dog, he must pay the sum of $1,500.00 to the plaintiff for the value of

the dog. The plaintiff appealed, arguing that the trial court’s determination that

pets are personal property which lack unique value was erroneous as a matter of

law.


                                          49
       The Appellate Division overturned the trial court’s decision, holding that

the trial court’s conclusion that specific performance is not, as a matter of law,

available to remedy a breach of an oral agreement about possession of a dog

reached by its joint owners is not sustainable. The court held that specific

performance is the appropriate remedy in cases when money damages are not

adequate to protect the expectation interest of the injured party and an order

requiring performance of the contract will not result in inequity to the offending

party. The court held that based on the same reasoning, when personal property

has special subjective value, courts have determined that an award of possession

of personalty is the only adequate remedy for tortious acquisition and wrongful

detention of property. Moreover, the court held that consideration of special

subjective value is also appropriate when a court is called upon to exercise its

equitable jurisdiction to resolve a dispute between joint owners of property that

cannot be partitioned or sold without hardship or violation of public policy.

       The court defined this “special subjective value” as sentiment explained by

facts and circumstances-such as the party's relationship with the donor or prior

associations with the property-that give rise to the special affection. The court

noted that New Jersey courts had previously recognized that pets have this

“special subjective value” and that courts of other jurisdictions have considered

the special subjective value of pets in resolving questions about possession.

       The court held that when a separating couple is unable to agree about who

will keep jointly held property with special subjective value, and the trial court


                                          50
deems division by forced sale an inappropriate or inadequate remedy given the

nature of the property, the trial court must determine whether the assertion of a

special interest in possession is sincere and grounded in “facts and circumstances

which endow the chattel with a special ... value” or based upon a “sentiment

assumed for the purpose of litigation out of greed, ill-will or other sentiment or

motive similarly unworthy of protection in a court of equity.” In this case, the

court held that the trial court erred by declining to consider the relevance of the

oral agreement between the parties as to possession of the pet and by holding that

a pet is not subject to specific performance. The court remanded the case to the

trial court for further proceedings on the existence of an oral agreement about

ownership and possession of the dog and the propriety of specific performance.

Observation: This is not a dog custody case – it is a breach of contract case. In

this case, the trial court concluded that there was an oral agreement that was

breached and the remedy was to award the plaintiff $1,500.00 in damages. What

if there was no agreement and the parties each demonstrated a “special subjective

value” in the pet. Would the court then award custody to one (1) party and dog

parenting time to the other?

       Certain property is so unique that monetary damages are not sufficient –

with a dog you are dealing with a life – and the emotional attachment that comes

with it. Nevertheless, the Appellate Division rejected the request that we should

consider the best interests of the pet in determining these cases. Rather, we look at

the parties and their special attachment to the animal.


                                          51
       Practitioners should warn clients who wish to assert this “special interest”

that while they may not be able to put a price tag on the object’s sentimental value,

they will be able to put a price tag on the counsel fees associated with proving

sentimental value.




                                         52
               Martin v. Martin, 410 N.J. Super. 1 (Ch. Div. 2009)

Issue: Are child support orders subject to an automatic three (3) year review,

regardless of any showing of changed circumstances pursuant to N.J.S.A. 2A:17-

56.9a. and Doring v. Doring, 285 N.J. Super. 369 (Ch. Div. 1995)?

Holding: No. As the Supreme Court has established an automatic two (2) year

cost of living adjustment for child support orders under R. 5:6B, there is no longer

a statutory right under N.J.S.A. 2A:17-56.9a to a three (3) year review based on the

passage of time.

Discussion: The parties were divorced on January 22, 2004, and a dual final

judgment of divorce, with a property settlement agreement, was filed on that same

date. The parties had two (2) children, ages 17 and 15. Under their agreement, the

parties shared joint custody of the children and they equally shared parenting time.

The parties agreed that neither would pay child support to the other so long as they

continued to equally share parenting time.

       After the divorce, the plaintiff began having less parenting time with the

children and defendant filed a post-judgment motion to establish child support. A

Title IV-D support order was entered on June 24, 2005, ordering the plaintiff to

pay child support to the defendant in the amount of $98.00 per week. In May of

2007, the defendant received a cost-of-living adjustment, increasing the plaintiff’s

child support obligation to $104.00 per week.

       In 2009, the defendant filed a Motion for increased support based on the

passage of three (3) years since entry of the June 2005 support order. The


                                         53
defendant argued that he did not need to prove a change in circumstances, as the

court in Doring v. Doring, 285 N.J. Super. 369 (Ch. Div.1995) held that child

support orders are subject to review by a court every three (3) years regardless of

whether there has been a change of circumstances since the time of the prior order.

       The court rejected the defendant’s argument. The court held that the statute

upon which the Doring decision was based, N.J.S.A. 2A:17-56.9a, was amended in

1998 to eliminate the automatic three-year court review provision. However,

because the 1998 amendment has not been addressed in a subsequent published

decision, parties continue to seek the three-year court review of child support

orders discussed in Doring.

       The court noted that at the time Doring was decided in 1995, federal law

required that, in order for a state to receive federal funding for its Title IV-D child

support program, “the state must have in effect laws requiring the periodic review

of all Title IV-D child support orders.” Id. at 372, 666 A.2d 1388, citing 42

U.S.C.A. § 666. Accordingly, our Legislature had enacted N.J.S.A. 2A:17-56.9a.,

which provided for a review of all IV-D child support orders at least every three

(3) years. The Doring court, relying upon the clear language of this statute, found

that all child support orders are subject to a triennial review by a court, regardless

of whether there has been a change of circumstances since the time of the prior

order. However, the court held that Doring is no longer applicable, as after the

Doring decision was issued, the Legislature amended the statute. As written,

N.J.S.A. 2A:17-56.9a now provides for a three (3) year review only if the State has


                                          54
not developed an automated cost-of-living adjustment program for child support

payments. The court held that in New Jersey, the Supreme Court has adopted Rule

5:6B, which provides for a cost of living adjustment to child support orders every

two (2) years.

       In light of the above, the court concluded that child support orders are no

longer subject to automatic court reviews every three (3) years. Instead, the child

support amount is automatically adjusted every two (2) years to reflect the cost of

living, with each party having an opportunity to contest the adjustment. The court

held that pursuant to Rule 5:6B, such contests are limited to situations (1) where

an obligor's income has not increased at a rate at least equal to the rate of inflation

or (2) where the order itself provides for an alternative periodic cost-of-living

adjustment. Otherwise, parties may contest a cost-of-living adjustment or seek a

modification of a prior child support order only by showing that such a

modification is warranted based upon changed circumstances. The mere passage

of time since the entry of the child support order is not a sufficient reason to

request that a court review the order or require that the parties exchange financial

information. Under the circumstances, the court denied the defendant’s

application for an increase in child support.

Observation: Keep in mind that both Martin and Doring are Chancery Division

opinions. Moreover, this decision fails to address what happens in cases where

child support is paid directly and the automatic two (2) year COLA review does

not occur. Although a Divorce Settlement Agreement in direct pay cases may


                                          55
provide for a bi-annual cost of living review, without a mechanism for this review

to take place, in most cases, it simply does not happen. Most parties will not file a

motion to obtain this COLA review, as it is not cost effective. If a party entitled to

a cost of living review does not enforce that right, should they be prohibited from

filing an application for a three (3) year review under Doring?

       A COLA review is not the equivalent of a review such as was contemplated

by Doring. The bi-annual COLA review does not require the exchange of Case

Information Statements and is limited merely to the cost of living. In cases where

child support is paid through Probation, but the payor is successful in appealing

the bi-annual cost of living increase in year two (2), should the payee be

prohibited from an automatic review of child support in year three (3)? If Doring

is no longer good law, haven’t the children lost out by being precluded from an

automatic comprehensive three (3) year review simply because they received a

COLA review.




                                         56
        Wunsch-Deffler v. Deffler, 406 N.J. Super. 505 (Ch. Div. 2009)


Issue: Is a straight application of the Child Support Guidelines appropriate in a

case where the mother and father share equal parenting time (50/50) with the

unemancipated children.

Holding: No. When parents share a truly joint physical custody situation,

wherein they each have 50% of the time with the children, the Child Support

Guidelines must be adjusted to take into account the fact that both parents are

responsible for paying the children’s “controlled expenses” as they are defined

under the Child Support Guidelines.

Discussion: The parties had two (2) children, ages eight (8) and two (2) at the

time of the divorce. Pursuant to the Property Settlement Agreement, each parent

had custody of one (1) child, and the parties agreed that neither parent would pay

child support to the other. However, at such time as one (1) child emancipated,

either party could apply for child support for the remaining child.

       The eldest child was emancipated in February 2008. After that date, the

parties shared equal parenting time with the younger child. Pursuant to the

Property Settlement Agreement, the plaintiff-mother filed an application to require

the defendant-father to pay her child support. There was no dispute as to the

mother’s income of $800.00 gross per week or the father’s income of $1,047.00.

There was also no dispute that the father had the child overnight for 182 nights per

year. Additionally, there was no dispute that a straight forward application of the



                                         57
Child Support Guidelines, utilizing these facts, would yield a child support

obligation from the father to the mother in the amount of $56.00 per week.

          The trial court held that a straight forward application of the child support

guidelines was not proper in this case, where the parties shared parenting time

with the child on a 50/50 basis. Rather, the court held that in cases where the

parents have a true joint physical custody arrangement, and they each have equal

overnights with the children, the payor must be given credits against the basic

child support obligation under the Guidelines to take into account his contribution

toward “controlled expenses,” including items like clothing, personal care and

entertainment. This adjustment must be made because “the Guidelines assume

that controlled expenses are only incurred by the parent of primary residence.” Id.

at 508.

          Relying on Benisch v. Benish, 347 N.J. Super. 393 (App. Div. 2002),

wherein the court found that in a 50/50 time sharing situation a mechanical

application of the Child Support Guidelines is inequitable, the court in Wunsch-

Deffler developed the following three (3) step formula to properly adjust child

support in true shared parenting arrangements:


          When the parties share an equal number of overnights with the child,
          the following three-step procedure should be used to adjust the
          paying parent's child support obligation to account for the fact that
          both parties are responsible for paying the child's “controlled
          expenses” during their parenting time. This procedure will “back
          out” the 25% in “assumed” controlled expenses from the paying
          parent's child support obligation. The first step is to multiply the
          Basic Child Support Amount determined in Line 9 of the Child


                                            58
       Support Guidelines-Shared Parenting Worksheet by the payor's
       income share. Second, this figure should be multiplied by 25%,
       which represents the controlled expenses assumed by the Guidelines.
       Third, the product of this calculation is then subtracted from the
       paying parent's “Adjusted Basic CS Amount,” as reflected on Line
       15 of the Worksheet. The result reached is the payor's child support
       obligation and takes into account that both parties, and not just the
       party receiving child support, pay controlled expenses for the child
       during their equally shared parenting time.

       Wunsch-Deffler at 509.

       Applying the above-referenced formula in Wensch, the court

determined that the father should pay child support to the mother in the

amount of $14.05 per week as follows:

       Step One

             Basic Child Support (Line 9) $311.00
       X     Payor’s Income Share         53.95%
       _______________________________________
                                          $167.78

       Step Two

              $167.78 X 25% (for controlled expenses) = $41.95


       Step Three

         Adjusted Basic Child Support Amount (Line 15) $56.00
      — Product of Steps One and Two                   $41.95
      __________________________________________________
      Total:                                           $14.05

Observation: Wunsch-Deffler is a trial court decision and, therefore, is not

binding precedent. However, it provides a methodology for calculating

child support in those cases where the parties each have the children for



                                         59
50% of the time. However, does the methodology pass the smell test (i.e. –

here the husband earns $247.00 per week gross more than the wife but only

pays $14.05 per week in child support).

       Wunsch-Deffler emphasizes the problem with a formula-based

approach to fixing support. While applying a formula may be easy and

predictable, it often fails to take into account the nuances which make each

case unique and which make application of a formula inequitable and

impractical. For example, just because the parties are equally sharing the

parenting time, does this mean that they are also equally sharing the

expenses of the child? Wouldn’t the correct result be to toss the Child

Support Guidelines in those rare cases of 50/50 split custody and determine

child support the old fashioned way under N.J.S.A. 2A:34-23?




                                          60

				
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