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.
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.
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
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
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
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:
…[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
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-
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
potential for an entirely new trial on the issue of custody and parenting
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
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
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.
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
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.
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
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.
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
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:
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
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
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,
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,
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
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
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
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
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.
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
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
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
change in beneficiary should be prepared and executed at the same time as the
Settlement Agreement to prevent problems with compliance in the future.
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
$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
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
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
reconcile its finding as to the husband’s expenses with the record was reversible
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
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.
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
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
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
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.
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
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.
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
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
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
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
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.
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
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
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
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,
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,
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.
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
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
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).
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
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
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
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?
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),
wherein the court held that the Legislature is not constitutionally required to
impose a clear-and-convincing standard for the adjudication of domestic violence
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
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?
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”.
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,
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
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
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.
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
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
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
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
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
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
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
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.
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
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:
Basic Child Support (Line 9) $311.00
X Payor’s Income Share 53.95%
$167.78 X 25% (for controlled expenses) = $41.95
Adjusted Basic Child Support Amount (Line 15) $56.00
— Product of Steps One and Two $41.95
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
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?