2014 Wilentz Family Law Case Decisions

ALIMONY

Krupinski v. Krupinski, 437 N.J. Super. 159 (App. Div. 2014). Before Judges Fuentes, Fasciale, and Haas. Opinion by Judge Fuentes, P.J.A.D.

Issue: Did the trial court err in denying Husband’s motion to terminate his obligation to pay permanent alimony to plaintiff in light of Husband’s post-divorce efforts that caused the Wife’s share of husband’s pension benefits to increase?

Holding: Yes. The Appellate Court reversed and remanded to the trial court to enter a case management order to give the parties an opportunity to engage in discovery and to determine whether an evidentiary hearing was necessary. The Appellate Court declared that the trial court failed to address what part of the defendant Husband’s monthly pension benefits, which plaintiff Wife had been receiving since 2010, were attributable to his post-divorce efforts because that amount may be considered income to plaintiff when determining alimony. Here, Husband claims that but for his additional training and education after his divorce, Wife would have only received $665 of his retirement pension as opposed to $1,871 per month retirement benefit. On remand, Husband would have the burden of proof to show: (1) that $1,206 of the $1,871 plaintiff was receiving from his pension was the result of defendant's post-divorce efforts; (2) the $1,206 was "income" to plaintiff and outside the scope of N.J.S.A. 2A:34-23(b); and (3) as a result of this additional "income," plaintiff will be able maintain the marital lifestyle without the $100 per week permanent alimony defendant had paid to her over twenty-two years.

Quinn v. Quinn, 2014 N.J. Super. Unpub. LEXIS 1108(App. Div. 2014), certif. granted, 219 N.J. 631 (2014). Before Judges Ashrafi, St. John, and Leone. Per Curiam.

Issue: Did the trial court err in suspending Wife’s alimony payments for the term that she was cohabitating with another man rather than permanently terminating alimony?

Holding: No. The Appellate Court affirmed the trial court’s suspension of alimony during the term of cohabitation and its determination not to permanently terminate alimony payments to the Wife. Although the parties’ settlement agreement provided for termination of alimony if she cohabitated, it did not address the issue of whether alimony could be reinstated once the cohabitation ended. The Appellate Court stated that the trial court did not abuse its discretion because the trial courts retain discretion and equitable authority to reach fair and just results in family law cases.

Schocet v. Schocet, 435 N.J. Super. 542 (App. Div. 2014). Before Judges Fisher, Espinosa, and Koblitz. Opinion by Judge Espinosa, J.A.D.

Issue: Is the appointment of experts at ability to pay hearings, conducted pursuant to Rule 1:10-3, constitutionally required?

Holding: No. The Appellate Court held that the plaintiff failed to show that expert testimony was needed to avoid incarceration or that it would even assist the trier of fact. The Appellate Court distinguished plenary hearings from the ability to pay hearings, declaring that the object of ability to pay hearings is “to determine whether that failure [to pay] was excusable or willful.” In such hearings, experts are not automatically required. First, the hearings only determine whether the obligor has made a good faith effort to provide support. A court may only order incarceration when the obligor willfully refused to provide such support. Second, the admissibility of expert testimony is subjected to N.J.R.E. 702 which allows expert testimony when the subject matter is beyond the understanding of the average trier of fact or when the testimony would assist the trier of fact to “understand the evidence or to determine a fact in issue.” There was no evidence in this case to suggest that the average Family Part judge would not be able to understand the subject matter of the hearing.

CHILD SUPPORT

Black v. Black, 436 N.J. Super. 130 (Ch. Div. 2013). Opinion by Hon. Lawrence Jones, J.S.C.

Issue 1: Where there is a damaged relationship between a parent and a college aged child, may the court order joint counseling as a condition of that child receiving financial assistance for college from his or her divorced parent?

Holding 1: Yes. The court held that in a situation where the parent-child relationship has been damaged, the court may order joint counseling to repair the relationship. The court acknowledged that in extreme cases, such as where sexual abuse occurred, a child will have good reason not to be in communication with his or her parent; however, in most instances, a parent-child relationship will be encouraged by the court. If the child refuses to attend counseling and resists having a relationship with his or her parent, the parent may make further application to suspend or terminate his obligation to pay for college expenses.

Issue 2: May the court consider the child’s option of attending a college at a substantially lower cost, even if that college is not the child’s first choice?

Holding 2: Yes. The court clarified that, 335 N.J. Super. 438 (App. Div. 2000) stood for the proposition that a child does not have the automatic right to select where he or she will go to college and that the courts may consider the availability of a less expensive education. The court declared that a parent should not be forced to go bankrupt in order to fund a child’s college expenses. The divorced parent should only be required to contribute what he or she is financially able to pay. If the child is unable to gather enough funds through grants, scholarships, and the parents’ contributions, then the child simply cannot attend that particular institution.

Issue 3: May the court consider that there are other children in the family close in age that will attend college in the future when determining how much divorced parents should contribute to the oldest child’s education?

Holding 3: Yes. Although not included in the Newburgh factors, the court stated that the possibility of younger siblings attending college is an important and relevant factor. Here, the court encouraged the divorced couple to come up with a long-term financial strategy that will enable assistance to all of the children’s educations. The parties were ordered to pay an affordable amount monthly or weekly for eight years and the funds were to be applied equally toward the three children. If the children decide not to attend college, drop out of college, or attend college when they are emancipated, the parties may be entitled to a refund or a reallocation of the funds.

Gourdine v. Cummings, 434 N.J. Super. 492 (Ch. Div. 2013). Opinion by Judge Jones, J.S.C.

Issue: How should the court distribute the defendant’s tax intercepted funds when the defendant owes child support arrears to two different custodial parents and a county welfare agency?

Holding: The court held that it should: (1) Determine the pro rata comparative percentages on the total arrears for two custodial parents’ accounts (Gourdine and Terry) without considering the lien by the welfare agency on the Terry account; (2) Pay the pro rata percentage of the tax intercepted funds for the Gourdine account to Gourdine against existing child support arrears; (3) Pay the pro rata percentage of the tax intercepted funds for the Terry account to the county welfare agency reducing the agency’s arrears by such amount. The court noted that under 42 U.S.C.A. § 657(a)(2)(B)(i), the state would pay the custodial parent the excess amount; however, since the probation department secured the funds through a federal tax refund, the collected funds are applied to the government agency before the custodial parent.

Johnson v. Bradshaw, 435 N.J. Super. 100 (Ch. Div. 2013). Opinion by Judge Mohammed, J.S.C.

Issue 1: Does the court retain jurisdiction to enforce a 2011 child support order when both parties do not reside in New Jersey and no other court has modified the New Jersey order?

Holding 1: Yes. Relying on Youssefi v. Youssefi, 328 N.J. Super. 12 (App. Div. 2000), the court found that when there is only one child support order and no other jurisdiction has modified it, the court retains jurisdiction to enforce the existing order. In the present matter, New Jersey had jurisdiction to enforce its child support orders despite both parties having relocated outside the state.

Issue 2: Under the Uniform Interstate Family Support Act, does the court retain continuing, exclusive jurisdiction to enter a modification or a new child support order when no party currently resides in New Jersey?

Holding 2: No. Based upon the UIFSA statute and interpretations by other states, the court concluded that “when the parties no longer live in the jurisdiction, that jurisdiction is no longer the proper jurisdiction for a modification of a previous order” and that the party seeking relief must do so in the new jurisdiction. The trial court determined that under N.J.S.A. § 2A:17-56.52 there is no distinction between temporary and final orders. Any changes to the order would be a modification that the court is unable to determine since it no longer has continuing, exclusive jurisdiction with the parties residing in another state.

Issue 3: Can the court employ equitable estoppel to warrant a finding of continuing, exclusive jurisdiction due to the defendant’s delay in delivering financial documents?

Holding 3: No. The court concluded that it “cannot use its equitable powers to form its jurisdiction over any case.” Furthermore, the court’s power of equity only comes about when a court has jurisdiction over a particular matter.

CIVIL RIGHTS

Nichols v. State of New Jersey, 2014 U.S. Dist. LEXIS 99783 (D.N.J. 2014). Opinion by Judge Martini, U.S.D.J.

Issue 1: Did the plaintiff fail to state a claim under 42 U.S.C. §1983 against the State of New Jersey, Michelle Smith (in her official capacity as Clerk of the Superior Court of New Jersey) and Sallyanne Floria (in her official capacity as Presiding Judge of the Chancery Division) where Judge Sivilli issued a gag order, which prevented plaintiff from reporting or interviewing parties in a custody dispute?

Holding 1: Yes. First, the court held that the plaintiff failed to state a claim against the State of New Jersey because New Jersey does not constitute a “person” under §1983. Second, although Smith and Floria constitute “persons” in their official capacity under the statute, the plaintiff failed to state a claim because he failed to allege that either defendant had a “direct connection to, or responsibility for, the alleged illegal action,” namely the gag order issued by Judge Sivilli.

Issue 2: Should plaintiff be allowed to file an Amended Complaint naming the proper defendant?

Holding 2: Yes. The court stated that it is conceivable that if the plaintiff had filed his complaint against the proper party, he could have prevailed on his claim. The court granted plaintiff leave to file an Amended Complaint within 30 days.

CIVIL PROCEDURE

Clementi v. Clementi, 434 N.J. Super. 529 (Ch. Div. 2013). Opinion by Hon. Lawrence Jones, J.S.C.

Issue: Should the court grant the plaintiff’s request for sole ownership of the mortgage free marital home at a default hearing when the defendant husband defaulted and failed to participate in the divorce proceedings?

Holding: No. The trial court held that the plaintiff is not entitled to an automatic judgment granting all requests presented at a default hearing where the defendant fails to participate in the divorce proceedings. Defendant’s failure to object does not express consent but one of many factors that the court must consider in determining the reasonableness of the plaintiff’s request for equitable distribution. The trial court held that there was insufficient evidence on to prove by the preponderance of the evidence that granting her request for sole ownership of the marital home would be equitable. A new hearing was scheduled where the plaintiff would attempt to meet the burden of proof.

Stamatiou v. Stamatiou, 2014 N.J. Super. Unpub. LEXIS 81 (App. Div. 2014). Before Judges Fisher and Espinosa. Per Curiam.

Issue: Did the trial judge err by ordering a sanction against an attorney in a divorce action where the attorney failed to appear on behalf of the client because the attorney-client relationship had deteriorated and the attorney’s prior application to be relieved as counsel was denied?

Holding: No. The Appellate Court held that the appeal was without merit because pursuant to Rule 1:2-4, the trial judge did not have to give the lawyer notice before imposing the sanction on the attorney, nor did the judge have to conduct a hearing concerning the propriety of the sanction.

CUSTODY AND VISITATION

D.A. v. R.C., 2014 N.J. Super. LEXIS 172 (App. Div. 2014). Before Judges Fuentes, Fasciale, Haas. Opinion by Fuentes, P.J.A.D.

Issue 1: Did the judge err in failing to order the parties to submit to mediation as required pursuant to Rule 5:8-1?

Holding 1: Yes. The Appellate Court remanded the case for the parties to submit to mediation. Rule 5:8-1 states that “in family actions in which the court finds that either the custody of children or parenting time issues, or both, are a genuine and substantial issue, the court shall refer the case to mediation with the provisions of Rule 1:40-5.” If mediation fails to resolve the custody and parenting time issues, the judge shall conduct a plenary hearing and place his factual findings and conclusions of law on the record as required by N.J.S.A. 9:2-4(f) and Rule 1:7-4(a). The Court also suggested that the trial court closely monitor the mediation process given how diametrically opposed the two parties are on the issues of custody and parenting time.

Issue 2: Did the judge err in failing to consider and apply the factors outlined in N.J.S.A. 9:2-4 when determining which parent should be granted primary residential custody?

Holding 2: Yes. The Appellate Court reversed and remanded because it had determined that the judge had not applied, considered, or even mentioned any of the factors pertaining to the best interests of the child.

Issue 3: Did the judge err by failing to interview the parties’ 14 year old child?

Holding 3: Yes. Pursuant to Rule 5:8-6, the judge had the discretion to interview the child and if the trial court did not wish to conduct an interview, the judge was mandated to place his reasons on the record, which was not done. Here, given the child’s age (16), maturity, and level of intelligence, the judge should have taken into consideration the child’s preference regarding where and with whom he should live.

H.S.P v. J.K., 435 N.J. Super. 147 (App. Div. 2014), certif. granted 218 N.J. 532 (2014). Before Judges Ashrafi, St. John, and Leone. Opinion by Leone, J.S.C. (temporarily assigned).

Issue: Did the trial court err in awarding petitioner H.S.P. custody of his nephew, M.S., and denying or not making factual findings in reference to M.S.’s abandonment by his parents which would assist M.S. in obtaining a Special Immigrant Juvenile status?

Holding: The Appellate Division deferred to the findings of the trial court in affirming the award of custody. The panel did not take issue with the trial court’s decision not to make factual findings as to the best interests of the child because the petitioner did not satisfy the requirements of 8 U.S.C.A. §1101(a)(27(J)(i) by failing to establish that reunification with M.S.’s mother was not viable due to abuse, neglect, or abandonment. Since reunification with one parent was viable, the court did not err in declining to find whether it was in M.S.’s best interests to be returned to his home country.

K.A.F. v. D.L.M., 437 N.J. Super. 123 (App. Div. 2014). Before Judges Parrillo, Harris, and Kennedy. Opinion by Judge Kennedy, J.A.D.

Issue 1: Did the trial judge err in dismissing the suit by determining there was no issue of material fact warranting a plenary hearing in action brought by a third party, D.L.M., seeking visitation and custody of child born by K.A.F and adopted by F.D.?

Holding 1: Yes. The Appellate Court stated that the detailed certifications and facts submitted by F.D., K.A.F. and D.L.M. were in conflict. D.L.M claimed she maintained a psychological parent relationship with the child since she lived with him for six years, performed the duties of a parent, and was encouraged to parent the child by K.A.F. K.A.F. disputed many of D.L.M.’s contentions. F.D. argued that she never consented to such a relationship between the child and D.L.M. and disputed D.L.M’s role as a parent. As such, a plenary hearing should have been granted.

Issue 2: Did the trial judge err in ruling that when there are two fit parents involved in the child’s life, both parents must consent to a third party’s psychological parent relationship with the child for the third party to bring an action for visitation and custody?

Holding 2: Yes. The Appellate Court ruled that consent of one parent to D.L.M forming a parent-child relationship is sufficient for D.L.M. to have standing to bring an action for visitation and/or custody and remanded to the trial court for a determination on whether D.L.M is a psychological parent and what relief should be granted. Relying in part on V.C. v. M.J.B., 163 N.J. 200 (2000), the Appellate Court concluded that consent of both parents is not required since the Court in V.C. continually referenced to “a” legal parent or “the” legal parent. The Court in K.A.F. specifically noted that it is “sufficient if only one of the legal custodial parents has consented to the parental role of the third party. In that circumstance, a legal custodian has voluntarily created the relationship and thus has permitted the third party to enter the zone of privacy between her and her child.” Further, consent of a legal parent is only one factor that must be satisfied when determining whether a third party has achieved the legal status of a psychological parent. The other factors include: the third party must have lived with the child; the third party must perform parental functions for the child to a significant degree; and a parent-child bond must be forged. The Court held that consent need not be explicit in the creation of a “psychological parent bond.”

Madison v. Davis, 438 N.J. Super. 20 (Ch. Div. 2014). Opinion by Judge Jones, J.S.C.

Issue: Where the parties agreed to joint custody, is there a preference for which parent has the right to choose preschool, when a dispute arises?

Holding: When preschool enrollment is required for work-related day care, the primary residential parent has the initial right to select the preschool program or transfer the child from one program to another.

In balancing the rights and obligations of the custodial and noncustodial parent, the court announced a seven step analysis to determine how a preschool should be selected. First, if the pre-school is being used substantially for a need for work-related child care, then the custodial parent has the initial right under Pascale to select the child’s preschool and/or transfer the child to another pre-school. Second, this choice by the custodial parent must be reasonable. Reasonableness will be defined by considering the cost, location, accessibility, hours and dates of operation, and curriculum of the pre-school. Third, absent a court order, the custodial parent has a duty to reasonably inform the noncustodial parent to a change in the pre-school provider. Fourth, the noncustodial parent has a right to investigate and evaluate information regarding the new pre-school. If the noncustodial parent disagrees with the custodial parent’s choice, the noncustodial parent can file a motion with the court challenging the selection of the pre-school. Fifth, the non-custodial parent challenging the custodial parent’s selection must show that there is a more reasonable alternative plan available. Sixth, the court will then determine whether the custodial parent’s choice is reasonable. Seventh, if the court finds that either parent is acting unreasonably on the issue, the court can order that the unreasonable party must pay for counsel fees or pay other financial sanctions. This seven step analysis was applied to the facts of this case and the court determined that the plaintiff acted reasonably when she decided to switch pre-schools. The two schools were similar in cost, location, and services and the defendant failed to demonstrate that the change in pre-schools was unreasonable or would cause a strain on his relationship with his child. Dicta: If the parents are unable to co-parent, the Court may compel them to attend mandatory co-parenting counseling.

R.K. v. D.L., 434 N.J. Super. 113 (App. Div. 2014). Before Judges Fuentes, Fasciale, and Haas. Opinion by Judge Fuentes, P.J.A.D.

Issue 1: Did the trial court err by dismissing the grandparent’s complaint for visitation rights before conducting discovery or an evidentiary hearing?

Holding 1: Yes. The Appellate Court stated that in cases where grandparents are seeking visitation rights, the trial court must engage in a “fact-sensitive inquiry addressing the seven particularized factors in N.J.S.A. 9:2-7.1(b)(1) to -(7), as well as the ‘any other factor’ failsafe category in N.J.S.A. 9:2-7.1(b)(8)” to determine if plaintiffs have a prima facie case. In this case, the trial court did not weigh any of the seven factors to determine if there was a prima facie case and simply dismissed it based on the defendant’s Rule 4:6-2(e) motion. The court stated that the plaintiffs should have been allowed to gather sufficient evidence to overcome defendant's presumptively valid objection to grandparent visitation. Once the evidence has been collected, then the court can decide whether dispositive motions, if warranted by the evidence, should be granted or whether a plenary hearing is needed to determine if visitation is necessary to avoid harm to the child.

Issue 2: Did the trial court err by concluding that the plaintiffs were required to present expert testimony in order to meet their burden of proof?

Holding 2: Yes. Relying on Moriarty v. Brandt, 177 N.J. 84 (2003), the court explained that the plaintiffs can use either expert testimony or factual testimony to prove by a preponderance of the evidence that that visitation is necessary to avoid harm to the child. In this case, the court stated that expert testimony is not necessary for the plaintiffs to present their case. Even if the trial court concluded that an expert was needed, the plaintiffs should have been given the opportunity to retain one given the early stage of the case.

Issue 3: What are the administrative steps when a litigant brings an action seeking grandparent visitation under N.J.S.A. 9:2-7.1?

Holding 3: The Appellate Court held that a litigant may use the standardized complaint form approved under Directive 08-11 or an attorney-prepared pleading. A Complaint for Grandparent Visitation should not be automatically treated as a summary action. The vicinage Family Part Division Manager shall then designate the matter as a contested case after joinder of issue and refer the case for individualized case management by a Family Part judge. That judge will then review the pleadings to determine whether active case management is needed. The Court suggested that the judge meet with the parties and counsel to determine: (1) the nature of harm to the child alleged by the plaintiff; (2) the possibility of settlement; (3) whether pendente lite relief is warranted; (4) the extent to which any of the facts related to the statutory factors identified in N.J.S.A. 9:2-7.1(b)(1) through (8) can be stipulated by the parties; (5) whether discovery is necessary, and if so, the extent and scope of the discovery; (6) whether expert testimony will be required, and if so, the time for submission of the expert's report and curriculum vitae, the time for submission of defendant's rebuttal report if any, and whether deposition of the expert(s) will be required or permitted; (7) a protocol for the filing of motions, including motions to compel discovery, motions seeking protective orders to exclude or limit evidence based on an assertion of privilege, or because the release of the information would adversely affect the child's best interest, or unduly infringe upon the privacy rights of the custodial parent; and (8) a tentative date for the filing of dispositive motions and/or a plenary hearing if necessary to adjudicate plaintiff's complaint and re-solve any material facts in dispute.

The Court stated that “as a matter of sound principles of judicial case management and consistent with rudimentary notions of due process, a verified complaint prepared by an attorney, seeking grandparent visitation as the only form of relief , should not be rejected by the Family Part as facially deficient for filing, merely because it is not presented using a standardized form complaint intended to be used primarily by pro se litigants as a means of facilitating their access to the court. Stated differently, a litigant should not be penalized for retaining an experienced family law attorney to present their case to the court in the form of a professionally drafted pleading.”

R.K. v. F.K., 437 N.J. Super. 58 (App. Div. 2014). Before Judges Yannotti, Ashrafi, and Leone. Opinion by Judge Leone, J.S.C. (temporarily assigned).

Issue 1: Did the trial court err by making a final custody determination based upon the changed-circumstances standard?

Holding 1: Yes. The Appellate Court held that the trial court erred by applying the “change in circumstances” standard in deciding a custody determination after trial in a divorce action. The trial court was directed to apply all factors enumerated under N.J. S.A. 9:2-4 on remand and make a determination in the “best interests” of the child.

Issue 2: Did the trial court err by presuming that “the best interest of the child are served by an award of custody to the non-abusive parent” pursuant to N.J.S.A. 2C:29-25(b)(11)in a matrimonial proceeding?

Holding 2: Yes. The Appellate Court determined the presumption that the non-abusive parent shall be awarded custody is used in domestic violence proceedings and not to be applied in matrimonial proceedings. In matrimonial proceedings, N.J.S.A. 9:2-4 applies to custody determinations where domestic violence is only one of several factors that warrant consideration by the Court.

DIVISION OF CHILD PROTECTION AND PERMANENCY

Department of Children and Families, Division of Child Protection and Permanency v. E.D.-O, 434 N.J. Super. 154 (App. Div. 2014), certif. granted 218 N.J. 530 (2014). Before Judges Fisher, Espinosa, and Koblitz. Opinion by Judge Fisher, P.J.A.D.

Issue: Did the Director of the Division of Child Protection and Permanency, Department of Children and Families err by finding that the defendant had “abused and neglected” her nineteen-month-old child by leaving the child in a running motor vehicle with the doors locked, unattended for 10-15 minutes, while defendant went shopping in a store?

Holding: No. The Appellate Court explained that the defendant failed to exercise the minimum degree of care required by N.J.S.A. 9:6-8.21(c)(4)(b) because “a parent invites substantial peril when leaving a child of such tender years alone in a motor vehicle that is out of the parent's sight, no matter how briefly.”

L.A. v. N.J. Div. of Youth and Family Servs., 217 N.J. 311 (2014). Opinion by Justice LaVecchia.

Issue: Did the Appellate Court err in its determination that the emergency room doctor and the hospital were not entitled to summary judgment based on its conclusion that both parties had reasonable cause to believe that the child had been abused?

Holding: Yes. The Supreme Court reversed the Appellate Court’s determination and remanded to the trial court to dismiss the claims against the defendants. The court held that the duty to report child abuse “requires a reasonable belief based on the facts and circumstances known to the person on the scene.” In this case, where the child ingested cologne, which is commonly found in households, and evidence of intentional conduct by the child’s parents was absent, the doctor reasonably concluded that the ingestion was an accident, and he did not breach the duty to report child abuse pursuant to N.J.S.A. 9:6-8.10.

New Jersey Department of Children and Families v. R.R., 436 N.J. Super. 53 (App. Div. 2014). Before Judges Koblitz, Fisher, and O’Connor. Opinion by Judge O’Connor, J.S.C. (temporarily assigned).

Issue: Was it an act of neglect pursuant to N.J.S.A. 9.6-8.21(c)(4)(b) when a bus driver left a 5 year-old alone on the bus for 55 minutes due to the bus driver’s failure to check the bus before leaving for the day, as she was required to do, instead relying upon the bus aide’s representation?

Holding: Yes. The court affirmed the Department’s finding and determined that the bus driver failed to provide the minimum duty of care when she did not inspect the bus at the end of the day. Also, the bus driver’s reliance on a bus aide’s statement that the child had not taken the bus that day was insufficient evidence to salvage the bus driver’s poor judgment because the bus aide was not in the middle or the back of the bus where she could properly see the students , and the aide had been preoccupied with calls and text messages, all of which the bus driver had full knowledge of the day of the incident.

New Jersey Division of Child Protection & Permanency v. B.O., 2014 N.J. Super. LEXIS 168 (App. Div. 2014). Before Judges Reisner, Koblitz, and Higbee. Opinion by Judge Koblitz, J.A.D.

Issue: Did the trial judge err in finding the parents abused and neglected their infant child pursuant to N.J.S.A. 9:6-8.46(b) when the mother slept with the child in the same bed under the influence of illegal drugs and partially smothered the child causing brain damage?

Holding: No. The Appellate Court rejected the defendants’ argument that the decision should be reversed since the medical expert’s opinion was based on facts set forth by a friend’s unreliable testimony. The Court explained that the trial judge did not err in finding the friend’s testimony credible because the friend was genuinely concerned for the child’s welfare and that any inconsistencies in his story were due to his desire to hide his drug involvement from the police. The Court also stated that it owes a great deference to the Family Court and its expertise. Further, the judge did not err in finding the father had abused and neglected the child even though he was not the one who slept next to the child and caused the injury. The father participated in the drug use with the mother and was aware that she was sleeping with the infant child in the same bed and thus failed to protect the child.

New Jersey Division of Child Protection and Permanency v. C.W., 435 N.J. Super. 130 (App. Div. 2014). Before Judges Lihotz, Maven, and Hoffman. Opinion by Litotz, J.A.D.

Issue: Did the trial judge violate the defendant’s due process rights by allowing an in camera interview of a 17 year-old rather than requiring her to testify in the courtroom in front of the defendant?

Holding: No. The Court held that although the trial judge did not follow the proper provisions of the applicable Statute, the Appellate Court determined that the record had sufficient evidence that the defendant had “abused and neglected” her child, aside from the in camera interview. The Court also determined that when a defendant objects to using an alternative procedure to the child’s in court testimony, the judge must adhere to the procedures outlined in N.J.S.A. 2A:84A-32.4(a)-(c) which includes: A) the judge first making detailed findings of the necessity of an alternative procedure to the child’s in-court testimony; B) any alternative procedures must protect the defendant’s due process rights and the order must outline the procedures to be used; C) the judge must determine whether the child-witness is competent; D) the child must be placed under oath or instructed to tell the truth; E) the child must be available for cross-examination. In this case, the Appellate Court found that the defendant was not prejudiced by the in camera interview because the defendant had an opportunity to confront the Division’s evidence, which alone was enough to prove the child was “abused and neglected.”

New Jersey Division of Child Protection and Permanency v. G.R., 435 N.J Super. 392 (App. Div. 2014). Before Judges Fuentes, Fasciale, and Haas. Opinion by Judge Fasciale, J.A.D.

Issue 1: Did the Director err by granting the Division’s motion to proceed summarily by determining that there were no material issues of fact in dispute in reference to the “incident” where the defendant left her two year-old son in her minivan unattended?

Holding 1: Yes. The court held that Director erred in granting the Division’s motion to proceed summarily because a hearing was needed due to material disputed facts which included, “the length of time that G.R. was away from the minivan; whether G.R. used the parking lot-level entrance to Target or walked through the mall to reach the store; if she used the parking lot-level entrance, the distance between where she parked and that door; whether G.R. lost sight of the minivan while she was in the store, and if so, for how long; and whether there existed extenuating circumstances surrounding the incident.” The Appellate Division stated that the trial court should consider the totality of the circumstances when determining whether the defendant’s acts were “sufficiently negligent to warrant placement on the Registry.”

Issue 2: Should the case be dismissed as a matter of fundamental fairness because of agency inaction that lasted five years?

Holding 2: Perhaps. The case was remanded to determine whether the agency’s substantial delay required the case to be dismissed if the agency inaction violated the principles of fundamental fairness by subjecting the defendant to “oppression or egregious deprivation.” The defendant was uncertain of her challenge and whether her name would appear on the Registry for five years which could have had adverse impact on her reputation and employment.

New Jersey Division of Child Protection & Permanency v. J.A., 436 N.J. Super. 61(App. Div. 2014). Before Judges Fisher, Koblitz, and O’Connor. Opinion by Judge Fisher, P.J.A.D.

Issue 1: Did the trial court err in allowing into evidence the child’s uncorroborated testimony to the Division caseworker detailing the events surrounding the mother’s arrest due to driving while intoxicated with two children in the vehicle?

Holding 1: No. First, the Appellate Court clarified that a child’s uncorroborated testimony can be admitted into evidence; however, its use is limited by the legislature’s declaration that such uncorroborated testimony is “not alone sufficient to make a fact finding of abuse or neglect.” Secondly, the court points out that the child’s testimony in this case is sufficiently corroborated because the child’s testimony mirrored the police report of the incident and the testimony of the defendant, himself, who stated that his wife had been drinking before she got behind the wheel.

Issue 2: Did the trial court err by finding abuse or neglect on the part of the defendant because he allowed his wife to drive while intoxicated with their two children in the vehicle?

Holding 2: No. The Appellate Court stated that the defendant acted inconsistent with N.J.S.A. 9:6-8.21(c)(4) when he allowed his inebriated wife to drive with the children in the vehicle. The court noted that motor vehicle laws have little tolerance for those who drink and drive, and that there is a “growing body of case law demonstrating the dangers imposed for child-occupants of motor vehicles.”

New Jersey Division of Child Protection and Permanency v. K.N., 435 N.J. Super. 16 (App. Div. 2014), leave to appeal granted, 219 N.J. 624 (2014). Before Judges Messano, Hayden, and Rothstadt. Opinion by Judge Messano, P.J.A.D.

Issue 1: Did the trial court err by ordering the Division to treat the child’s return to the placement of his maternal grandparents as a “paid resource placement”?

Holding 1: Yes. The Appellate Court declared that it was the Legislature’s intention that only the Division has the authority to pay licensed resource parents. Further, there is no authority “suggesting that the Family Part's jurisdiction to resolve disputes over the placement of children already deemed wards of the court permits the judge to compel the Division to grant a license to a particular home.”

Issue 2: Did the trial court err by ordering the child’s continued placement with his maternal grandparents by concluding that a finding of domestic violence does not prevent the Division from licensing a home?

Holding 2: Maybe. The Appellate Court reversed and remanded to the trial court to consider the circumstances surrounding the 2004 domestic violence incident to determine whether placement with the maternal grandparents is in the child’s best interests. Although the legislature had determined that a person may not serve as a resource family parent if that person has been convicted of an offense including domestic violence pursuant to N.J.S.A. 30:4C-26.8(d)(9), in this case, there was no final restraining order issued against the grandfather in the 2004 incident.

Issue 3: Did the trial court err by ordering the child’s continued placement with his maternal grandparents by concluding that even if there was a report of substantiated neglect on the part of the resource family parent (maternal grandfather), the Division could still license the family if it determined that there was no continuing harm and that placement would be in the child’s best interest?

Holding 3: Maybe. The Appellate Court reversed and remanded for the trial court to consider the “serious nature of the allegations that led to the Division's substantiation of neglect, and that the incident arose out of the family dynamics at the time, and while children … witnessed the events.” The court noted that if the Division decides to deny licensing based on the prior findings of neglect or for other good case, the Family Part could not force the Division to issue the license.

New Jersey Division of Child Protection and Permanency v. L.W. and R.W., 435 N.J. Super. 189 (App. Div. 2014). Before Judges Fisher, Koblitz, and O’Connor. Opinion by Judge Koblitz, P.J.A.D.

Issue: Did the trial court err by concluding that L.W. had “abused and neglected” her two children by failing to provide housing?

Holding: Yes. The Appellate Court reversed the trial court’s decision, and held that L.W. had not “abused and neglected” her two children. The Appellate Court noted that failure to provide housing is a “side effect of poverty” and “poverty alone is never an adequate basis for finding abuse or neglect.” In this case, L.W. tried to find housing through government agencies and tried to find employment but she was unsuccessful. As a matter of policy, the Appellate Court stated that homeless parents should be able to rely on the Division’s services without being found neglectful.

New Jersey Division of Child Protection and Permanency v. M.C., 435 N.J. Super. 405 (App. Div. 2014). Before Judges Grall, Nugent and Accurso. Opinion by Judge Grall, P.J.A.D.

Issue: Did the trial court err by determining that the Division had met its burden of proof that M.C.’s children were “abused and neglected” pursuant N.J.S.A. 9:6-8.21(c)(4)(b) by only looking to evidence of M.C.’s past conduct?

Holding: Yes. The Appellate Court held that the trial court erred in its determination that the Division provided adequate evidence to show that the children were “abused and neglected” because the court based its decision solely on the past conduct of M.C. The Appellate Court stated that a determination must be based on whether the children were “presently in imminent danger of being impaired physically, mentally, or emotionally.” Since there was no such evidence that M.C. had continued to engage in his prior conduct, the Division had not met its burden.

New Jersey Division of Child Protection & Permanency v. Y.A., 437 N.J. Super. 541 (App. Div. 2014). Before Judges Reisner, Haas, and Higbee. Opinion by Judge Haas, J.A.D.

Issue: Did the trial judge err in allowing uncorroborated, in camera testimony of a child victim of sexual abuse to prove abuse or neglect under Title 9?

Holding: No. The child’s statements made in camera do not need to be independently corroborated when a child victim testifies to the abuse at a fact finding hearing. The defendant mistakenly relied on N.J.S.A. 9:6-8.46(a)(4) which provides that previous statements made by the child relating to any allegations of abuse or neglect shall be admissible as evidence; provided, however that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect. This statute applies to statements made by the child to third parties, such as a caseworker, police officers, or hospital personnel. The Statute permits those third parties to testify as to the out of Court statements by the victim. Here, the child testified at trial, therefore, there is no requirement that her statements be corroborated.

New Jersey Division of Child Protection & Permanency v. Y.N., 2014 N.J. LEXIS 1390 (2014). Opinion by Justice Albin.

Issue 1: Can a finding of abuse or neglect pursuant to N.J.S.A. 9:6-8.21(c)(4)(b) be sustained solely based upon a newborn’s methadone withdrawal following the mother’s participation in a treatment program?

Holding 1: No. The Court held that absent exceptional circumstances, a finding of abuse or neglect cannot be sustained solely based on the newborn’s methadone withdrawal that resulted from the mother’s participation in a treatment program. In order to sustain a finding of abuse or neglect, the Division needed to prove that the mother unreasonably inflicted harm upon her newborn child by acting with gross negligence or recklessness. Here, the mother did not act with gross negligence or recklessness. Upon learning of her pregnancy, the mother sought treatment and entered a bona fide detoxification program to address the health needs of her child. Any withdrawal symptoms suffered by the child as a result of the mother ingesting lawfully prescribed methadone was not a sufficient basis to warrant a finding of abuse or neglect.

New Jersey Division of Youth and Family Services v. N.C.M., 2014 N.J. Super. LEXIS 166 (App. Div. 2014). Before Judges Sabatino, Simonelli, and Guadagno. Opinion by Judge Guadagno, J.A.D.

Issue: Did the trial court err in terminating N.C.M’s parental rights because the Division failed to prove by clear and convincing evidence that it had made reasonable efforts to correct the circumstances which led to the children’s placement outside the home and that termination of N.C.M’s parental rights will not do more harm than good pursuant to N.J.S.A. 30:4C-15.1(a)?

Holding: No. The Appellate Court affirmed the trial court’s decision to terminate N.C.M’s parental rights. On appeal, N.C.M. argued that the Division did not make reasonable efforts to correct the circumstances which led to her children being placed outside the home because when N.C.M. was younger and she herself was under the Division’s care, the Division failed to protect her and provide reasonable services to her when she was a child-parent. The court rejected this argument for two reasons: 1) there is no statute or precedent holding that that a Division’s failure to provide services to a child can later be considered in a subsequent matter involving that same child in her capacity as a parent; and 2) N.C.M’s argument is speculative at best, as there is no way to know whether things would’ve have turned out differently if the Division had provided more services to N.C.M. when she was younger. N.C.M also argued that terminating her parental rights would cause more harm than good to her children. She alleged that a Division caseworker interfered in her bonding evaluation with her children which caused a skewed result that the court relied on. Although the Appellate Court stated that it is preferable that any discussions between the caseworker and N.C.M. do not interfere with the evaluation, the process here was not so flawed as to disregard the expert’s finding that the best interests of the children was to be adopted by their foster mother and not be returned to N.C.M’s care.

New Jersey Division of Youth and Family Services v. N.D., 435 N.J. Super. 488 (App. Div. 2014). Before Judges Parrillo, Harris, and Guadagno. Opinion by Judge Guadagno, J.A.D.

Issue: Did the trial court err by determining that the defendant had “abused and neglected” her child in utero pursuant to N.J.S.A. 9:6-8.21(c)(4) by ingesting cocaine two days prior to the child’s delivery?

Holding: Yes. The Appellate Division remanded to the trial court to determine if there was a causal connection between the mother’s use of cocaine and the risk of substantial, imminent harm to the child in light of the standard established in A.L. New Jersey Division of Youth and Family Services v. A.L., 213 N.J. 1 (2013). In A.L., the court held that a newborn testing positive for cocaine, standing alone, does not establish proof of “imminent danger or substantial risk of harm.” On remand, all parties shall be permitted to submit additional evidence, including medical or expert testimony, in order to show “whether Edgar [the newborn child] suffered long- or short-term harm as the result of his exposure to cocaine ingested by Natalie prior to his birth.”

New Jersey Division of Youth and Family Services v. R.G., 217 N.J. 527 (2014). Opinion by Justice Rodríguez (temporarily assigned).

Issue: Did the Appellate Court err in reversing the trial court’s finding that the appellant’s parental rights should not be terminated because the Division’s evidence failed to satisfy the four prongs of N.J.S.A. 30:4C-15.1(a)?

Holding: Yes. Pursuant to N.J.S.A. 30:4C-15.1(a), the four prongs which determine when the State may terminate parental rights include: (1) the child’s safety, health, or development has been or will continue to be endangered by the parental relationship; (2) the parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe home for the child and the delay of permanent placement will add to the harm; (3) the Division has made reasonable efforts to provide services to help the parent correct the circumstances which led the child’s placement outside the home and the court has considered alternatives to termination of parental rights; (4) termination of the parental rights will not do more harm than good.

For the first prong, the Court held that incarceration alone is not sufficient to justify termination of parental rights. In this case, appellant parented the child for six months before his incarceration, and regularly called and wrote letters to the child upon his incarceration. Additionally, there is no evidence that tends to prove that the crimes for which the appellant is incarcerated for affect his ability to parent his child. In terms of the second prong, the Court held that the Division did not meet its burden. Although the Division made a compelling argument about the harm caused to the child by delaying her permanent placement, it did not meet the clear and convincing standard. With respect to the third prong, the Division did not meet its burden because it only met with appellant once, called him once, and arranged for two psychological evaluations. In this case, where the incarcerated parent was soon to be released, the Division should have modified its services to accommodate the changing circumstances. Lastly, the Division failed to show that termination of parental rights would not do more harm than good. According to the trial court’s findings, the expert’s opinion, which stated there was no bond between appellant and his child, was based on flawed information, there was no bonding evaluation conducted, and the child showed love and affection for the appellant.

In this matter the Court emphasized that the standard for termination of parental rights is not any different when the parent is incarcerated and the burden does not shift. The Division must meet all four prongs by clear and convincing evidence.

New Jersey Division of Youth and Family Services v. W.F., 434 N.J. Super. 288 (App. Div. 2014), certif. denied 218 N.J. 275 (2014). Before Judges Yannotti, Ashrafi, and Leone. Opinion by Leone, J.S.C. (temporarily assigned).

Issue: Did the trial court err by dismissing defendant’s claim of custody relating to his six children?

Holding: No. The Appellate Court held that the trial court properly dismissed defendant’s custody claims for two reasons: (1) the defendant’s three oldest children became adults during litigation and the appeal is moot; and (2) the defendant’s three youngest children’s custody was determined by parental consent and he does not contest the FD order containing that agreement, therefore, defendant cannot raise this issue on appeal.

DIVORCE

Marsico v. Marsico, 436 N.J. Super. 483 (Ch. Div. 2013). Opinion by Judge Jones, J.S.C.

Issue: May a litigant appear and testify in Court through a designated power of attorney?

Holding: No. The court held that N.J.S.A. 46:2B-8.1 et seq., which allows a competent person to appoint another person to act on his or her behalf as an attorney-in fact under power of attorney (POA), does not expressly authorize a third person to submit certifications or testify on behalf of a spouse in a contested divorce proceeding. The court stated that the spouse’s testimony is essential to a divorce action and that if a third party were able to supply testimony, it would run “a clear risk that such information will be incomplete or unreliable.” The court acknowledged that when a spouse is found to be incompetent, the judicial process is flexible to accommodate such situations when necessary. Here, however, the fact that one of the spouses was in his eighties does not constitute him as incompetent or incapable of handling his own legal matters.

DOMESTIC VIOLENCE

A.M. v. M.M., 2014 N.J. Super. Unpub. LEXIS 1416 (App. Div. 2014). Before Judges Sapp-Peterson and Maven. Per Curiam.

Issue: Should counsel be appointed to defendants in cases brought under the Prevention of Domestic Violence Act (PDVA)?

Holding: No. The court declared that "the protections of due process do not require the appointment of counsel for indigents presenting or defending a private party's civil domestic violence action" and if defendant wanted to retain counsel he could have done so at his own expense. Furthermore, during the trial, the court asked the defendant, who appeared pro se, if he had any witnesses to call or if he wanted to cross-examine the plaintiff, which he did not. The trial court determined that the plaintiff carried her burden and issued the FRO against the defendant. The Appellate Court determined that in this case, there was no basis to intervene or set aside the trial court’s issuance of the FRO.

D.N. v. K.M., 216 N.J. 587 (2014). Per Curiam.

Issue: Did the Appellate Court err by concluding that due process does not require the appointment of counsel for indigents in a civil domestic violence action?

Holding: No. The Supreme Court of New Jersey denied a petition of certification because D.N. did not assert that she was indigent nor did she ask the trial court to appoint counsel to represent her. The court refused to answer whether indigents should be afforded counsel under the Prevention of Domestic Violence Act, N.J.S.A. §2C:25-17 et seq.

L.T. v. F.M., 2014 N.J. Super. LEXIS 154 (App. Div. 2014). Before Judges Reisner, Haas, and Higbee. Opinion by Haas, J.A.D.

Issue 1: Was it an error to order that the defendant was collaterally estopped from arguing in the Law Division that he did not assault the plaintiff?

Holding 1: Yes. The Appellate Court reversed and remanded. Relying on the law of the case doctrine, the court stated that the judge did not acknowledge that the Family Part judge had determined that it would be unfair to bar the defendant from making arguments that he did not assault the plaintiff. Also, the judge failed to make adequate findings of fact or legal conclusions supporting his decision to depart from the decision of the Family Part judge.

Issue 2: Did the trial judge err in allowing plaintiff’s son to testify concerning an incident of domestic violence to establish “habit” evidence?

Holding 2: Yes. Citing to N.J.R.E. 406, the Appellate Court stated that habit evidence must demonstrate a routine practice probative of conduct with specificity or proof of regularity. Here, the son’s testimony failed to establish habit evidence and it should not have been admitted as evidence of the defendant’s prior bad acts, which is specifically prohibited by N.J.R.E. 404(b).

N.B. v. S.K., 435 N.J. Super. 298 (App. Div. 2014). Before Judges Fisher, Koblitz, and O’Connor. Opinion by Fisher, P.J.A.D.

Issue 1: Did the trial court err in excluding plaintiff’s evidence of defendant’s prior violations of the matrimonial civil restraints and in granting an involuntary dismissal of plaintiff’s 2012 domestic violence action on the ground that a violation of matrimonial restraints does not constitute an act of domestic violence?

Holding 1: Yes. The Appellate Court declared that the trial judge erred by excluding plaintiff’s evidence by failing to sufficiently consider the defendant’s past violations of the matrimonial restraints which was relevant in determining whether the defendant had engaged in harassing conduct. The court pointed out that plaintiff was entitled to use defendant’s past violations not as evidence of per se acts of domestic violence but to provide context to support plaintiff’s claim that “defendant engaged in acts of harassment by making communications with purpose to alarm or seriously annoy.”

Issue 2: Did the trial court err in denying the Wife’s motion to reinstate the 2002 FRO that she voluntarily vacated 9 years earlier?

Holding 2: No. The Appellate Court stated that the plaintiff failed to seek relief within a reasonable amount of time. The court noted that the plaintiff had waited almost nine years before filing the present motion, and her right to relief had become stale.

Issue 3: Was it error to bar plaintiff from calling the defendant as a witness in chief?

Holding 3: Yes. There is no prohibition in the Rules of Evidence of Procedure.

J.C. v. M.C., 2013 N.J. Super. LEXIS 213 (Ch. Div. 2013). Opinion by Judge Jones, J.S.C.

Issue: Does a husband, who has an active domestic violence restraining order against him, seeking a divorce have to make “diligent inquiry” of the wife’s whereabouts to effectuate service of process?

Holding: No. Generally, a plaintiff in a divorce action must comply with Rule 4:4-3 which provides that a summons and a copy of the complaint must be served. When the plaintiff claims that he or she cannot serve the complaint because he or she is uncertain of the defendant’s whereabouts, the plaintiff must prove that “diligent inquiry” was undertaken to locate the defendant. However, in situations where there is an active restraining order, the requirement of diligent inquiry must be tailored to protect the domestic violence victim’s location from the other party. The court provides two solutions: 1) publish the summons and divorce complaint in the legal notice section of a newspaper in the area of the domestic violence victim’s last known address or 2) for the court to enter an order directing the domestic violence unit to forward the summons and complaint to the domestic violence victim to the address on file.

LIFE INSURANCE

Evans-Donohue v. Donohue, 435 N.J. Super. 283 (Ch. Div. 2013). Opinion by Judge Polansky, J.S.C.

Issue 1: Is it proper to award plaintiff a cash payment for the present value of the defendant’s pension while dividing marital property under N.J.S.A. 2A:34-23(h)?

Holding 1: No. The court held that it would be improper to award the plaintiff wife a cash payment because the marital estate did not have sufficient funds for such a distribution and there was not sufficient evidence regarding the worth of the present pension plan.

Issue 2: Should the defendant be required to select a surviving benefits option for his former spouse when he retires?

Holding 2: No. The court stated there are several factors to consider when determining whether a spouse should be required to select surviving benefits which include: (1) the length of the marriage; (2) the length of anticipated years of service in the pension plan; (3) the age and health of the parties; (4) the pension options available; (5) the financial impact of alternate pension options on both parties; (6) the availability of a survival benefit and its impact on the benefit received; (7) the cash value of the pension should the spouse participating in the pension die prior to retirement; (8) the availability of other assets to fund retirement; (9) the financial circumstances of both parties;(10) the availability of life insurance to protect the continent benefit; and (11) any other factors which may be relevant. At bar, the trial court highlighted factors (1) and (2) in determining that it would not be equitable to require the defendant husband to select a surviving benefits option because the marriage comprised of only 12 years of the 20 years the defendant has been participating in the pension program and given the defendant’s relatively young age, he would continue to participate in the pension plan, which would make the marriage only 1/3 of total participation time in the pension program.

MALPRACTICE

Innes v. Marzano-Lesnevich v. Liebowitz, 435 N.J. Super. 198 (App. Div. 2014), certif. granted 220 N.J. 38 (2014). Before Judges Messano, Hayden, and Rothstadt. Opinion by Judge Messano, P.J.A.D.

Issue 1: Did the motion judge err in granting summary judgment in favor of Liebowitz and Van Aulen, the Wife’s prior attorneys?

Holding 1: No. The motion judge properly dismissed defendants’ third party complaints because neither Liebowitz nor Van Aulen was a joint tortfeasor in the action. Liebowitz owed no duty to Innes after Liebowitz had been discharged by Carrascosa and she retained new counsel. Upon retention of new counsel, Innes could no longer rely on Liebowitz’s agreement to retain the child’s (Victoria) U.S. passport. Furthermore, defendants failed to provide sufficient evidence indicating that Van Aulen violated any professional standards or that his conduct was a proximate cause of Innes’s damages.

Issue 2: Did the motion judge err in denying the defendants’ motion for summary judgment?

Holding 2: No. The court found that the defendants did owe a duty to Innes because “the lawyer's duty of effective and vigorous representation of his client is tempered by his corresponding duty to be fair, candid and forthright.” Additionally, RPC 1.15(a) requires a lawyer to safeguard a client’s or third party’s property that is in his or her possession. In this case, if defendants were unwilling to abide by the previous agreement to keep Victoria’s passport in a trust, they should have notified Liebowitz or Van Aulen. It was not up to defendants to do with the passport as they saw fit in light of the agreement and Innes’s claim to Victoria’s passport as her father.

Issue 3: Did the trial court err in denying defendants’ motion to dismiss the complaint because Innes failed to prove the release of Victoria’s passport was a proximate cause of his damages?

Holding 3: No. The court determined that the defendant’s release of the passport to Carrascosa was a “substantial factor” in allowing the child to leave the country and thus bringing about Innes’s claim of damages. The court noted that the fact that the child could have used her Spanish passport to leave the county was irrelevant to the analysis because there was undisputed evidence that Victoria used her U.S. passport to exit the country.

Issue 4: Did the trial court err in submitting the issue of emotional distress damages to the jury?

Holding 4: No. The court declared that the harm was not pecuniary and “when the harm caused by an attorney's professional negligence is personal in nature and emanates from the fundamental relationship between parent and child,” it must assess whether the conduct was “egregious” and “extraordinary” through a different lens. The court determined that defendants’ actions were “egregious” and “extraordinary” because they ignored the previous agreement and gave the passport to Carrascosa without notifying Liebowitz or Van Aulen or seeking approval from the court.

Issue 5: Did the trial court err in awarding emotional distress damages because Innes and Victoria failed to prove through expert testimony or otherwise that they suffered “demonstrable psychiatric sequelae” proximately caused by defendants’ negligence?

Holding 5: The court held no for Innes and yes for Victoria. The court stated that Innes’s testimony was sufficient to show “demonstrable psychiatric sequelae” since the emotional distress caused by the severance of the parent-child relationship can be understood by the average person and need not be explained by an expert. The court added that if this form of redress was not available, the plaintiffs would have no alternative claim for relief which would effectively insulate defendants from liability. As for Victoria, the court determined that since there was no testimony regarding her mental and emotional distress caused by the separation from her father, the jury’s award was speculative and had to be reversed.

Issue 6: Did the trial court err in awarding Innes and Victoria counsel fees?

Holding 6: The court held no for Innes and yes for Victoria. Although the general rule is that the losing party should not pay costs and attorney’s fees, there is an exception when a successful plaintiff in a legal malpractice action seeks attorney’s fees when the plaintiff’s damages were proximately caused by the attorney’s negligence. In this case, since the court already determined that the defendants’ conduct was a direct and proximate cause of Innes’s damages, Innes was entitled to attorney’s fees. However, with regard to Victoria, since the court reversed on Victoria’s emotional distress claim she was not entitled to recover attorney’s fees.

Issue 7: Was it an error to sever the defendant’s third party complaint against Carrascosa, the wife, from trial and then to dismiss the complaint after trial?

Holding 7: No. The court found no issue with the trial judge’s decision to sever the defendant’s third party complaint. The court cited R. 4:38-2(a) which provides that a “court may order a separate trial of any claim for the convenience of the parties or to avoid prejudice.” The court also affirmed the trial court’s decision to dismiss the complaint after trial because Carrascosa was not liable for contribution. The defendants had the duty to prevent the “specific misconduct” of Carrascosa which they did not do because they allowed her to take Victoria’s passport which enabled Victoria to exit the country.

NAME CHANGE

Leggio v. Leggio, 436 N.J. Super. 641 (Ch. Div. 2014). Opinion by Judge Bottinelli, J.S.C.

Issue: Did the court have authority to grant Plaintiff a name change pursuant to N.J.S.A §2A:34-21 although she only obtained a divorce from Bed and Board pursuant to N.J.S.A §2A:34-3?

Holding: No. The court held that since there was no entry of a Judgment of an Absolute Divorce, the parties remained married in the eyes of the law. Therefore, the application for a name change should have been submitted to the Law Division under the general name change statute, N.J.S.A. §2A:52-1. The plain language of N.J.S.A §2A:34-21 expressly limits the Court’s authority to grant a name change, unless an absolute divorce is granted.

PALIMONY

Maeker v. Ross, 219 N.J. 565 (2014). Opinion by Justice Albin.

Issue: In passing the 2010 Amendment to the Statute of Frauds, N.J.S.A. 25:1-5(h), did the Legislature intend to render oral palimony agreements that predated the Amendment unenforceable?

Holding: No. The Supreme Court interpreted the language of the statute, “no action shall be brought,” to mean that the Legislature intended only to prevent future oral palimony agreements and that the statute should be applied prospectively. Here, the agreement between the parties predated the statute, which took effect on January 18, 2010. Therefore, the oral palimony agreement was enforceable.

PARENTING TIME

Plotnick v. DeLuccia, 434 N.J. Super. 597 (Ch. Div. 2013). Opinion by Judge Mohammed, J.S.C.

Issue: Should a putative father’s Order to Show Cause, which included a temporary mandatory injunction that required: (1) he be notified when the mother enters labor; (2) he be present at the time of delivery; (3) he be able to sign the child’s birth certificate; (4) the child carry the father’s surname; and (5) a parenting-time schedule be ordered, be granted?

Holding: The court held that although the father would suffer irreparable harm if he was not notified when the mother went in to labor or if he was not present at the time of delivery, the mother’s rights outweighed the father’s rights, even more so since they were unwed. Relying on the U.S. Supreme Court case Planned Parenthood v. Casey, 505 U.S. 833 (U.S. 1992) it would also be an undue burden on the mother to notify the father or have him present in the delivery room because the order the father sought invades the mother’s privacy and puts her in a more stressful position which could possibly complicate the pregnancy. Therefore, the father’s requested relief to be notified of the child’s birth or to be present in the delivery room was denied. The court also held that the father’s ability to sign the child’s birth certificate and that the child carry the father’s last name at the time of birth does not constitute immediate, irreparable harm and such relief was denied. Lastly, the court held that the parenting-time schedule was not ripe for review since parenting-time is based on the best interests of the child which cannot be determined until the child is born. The court further noted that such relief is non-emergent and would not have been granted.

REMOVAL

S.B. v. G.M.B., 434 N.J. Super. 463 (App. Div. 2014). Before Judges Fisher, Koblitz, and O’Connor. Opinion by Fisher, P.J.A.D.

Issue: Did the trial court err in concluding that New Jersey should decline jurisdiction over parenting time controversies in favor of Canada pursuant to N.J.S.A. 24:34-71 when wife and children moved to Canada following the divorce?

Holding: Yes. The Appellate Court explained that before turning to the statutory factors outlined in N.J.S.A. 24:34-71(b), the trial court should have first considered whether Canada was a more appropriate forum and whether a New Jersey was an inconvenient forum. The Appellate Court first addressed whether Canada is a more appropriate forum since that question is dispositive. In this case, where S.B. would very likely be barred from entering Canada due to his criminal record, and the parties explicitly stipulated in their property settlement agreement that New Jersey would retain elusive jurisdiction, the court concluded that Canada was not even an appropriate forum for parenting time controversies.

SPOUSAL PRIVILEGE

State v. Terry, 218 N.J. 224 (2014). Opinion by Chief Justice Rabner.

Issue 1: Did the state-intercepted phone conversations and text messages between a husband and wife pursuant to a court approved wiretap constitute protected communications under the marital communication privilege?

Holding 1: Yes. The Supreme Court affirmed the Appellate Court’s determination that the communications were protected under the marital communication privilege pursuant to N.J.R.E 509. The Court declared that the public policy of the N.J.R.E 509 is to encourage free and open communication between spouses and that the State’s contention that communications between husband and wife lose its privilege when intercepted by a wiretap would undermine the social policies of any privilege. The Court noted that if it had not been for the wiretap the communications would have remained privileged and that they could not have been compelled to disclose it. The Court concluded that a communication “does not lose its privileged character because it is intercepted by a wiretap.”

Issue 2: Should New Jersey adopt a crime-fraud exception to the marital communication privilege?

Holding 2: Yes. The Court agreed with the State that there should be a crime-fraud exception to the marital communication privilege. It stated that the privilege is to protect “marital harmony not to protect the planning or commission of crimes.” Since this exception may drastically change the Rules of Evidence, the Court opted to not act unilaterally and instead proposed an Amendment for the Legislature to approve. On December 15, 2014, the New Jersey Assembly passed the measure that would create a crime-fraud exception.

AMENDED COURT RULES

1:4-4. Affidavits

Part of this rule (c) was amended to provide that if the affiant is not available to sign an affidavit or certification, it may be filed with a facsimile of the original signature provided the attorney offering the document certifies that the affiant acknowledged the genuineness of the signature and that the document or a copy with an original signature affixed will be filed if requested by the court or a party.

2:5-6. Appeals From Interlocutory Orders, Decisions and Actions

Part of this rule (c) was amended to require a party filing a motion for leave to appeal from an interlocutory order to serve a copy on the trial judge or officer who entered the order. If the judge or officer has not filed a written statement of reasons for the disposition, he or she must file and transmit to the Clerk of the Appellate Division and the parties a written statement of reasons and may comment on whether leave to appeal should be granted.

2:6-11. Time for Serving and Filing Briefs; Appendices; Transcript; Notice of Custodial Status

Part of this rule (g) was amended to outline the procedures for motions that toll the time for serving and filing briefs in the Appellate Division.

2:11-1. Appellate Calendar; Oral Argument

Part of this rule (b) was amended to provide that in the Supreme Court, appeals shall be argued orally unless the court dispenses with the argument. In the Appellate Division, appeals shall be submitted for consideration without argument unless argument is requested by one of the parties within 14 days after service of the respondent’s brief or is ordered by the court.

2:12-10. Granting or Denial of Certification

This rule was amended to provide that a petition for certification shall be granted on the affirmative vote of three (3) or more justices.

4:11-4. Testimony for Use in Foreign Jurisdictions

This rule was amended to provide that testimony for use in the United States or another country, the Superior Court may order the issuance of a subpoena to such person in accordance with Rule 4:14-7. Also, whenever the deposition of a person is to be taken in this State pursuant to the laws of a foreign state for use in connection with proceedings there, an out-of-state attorney or party may submit a foreign subpoena along with a New Jersey subpoena. The rule states that a request for the issuance of a subpoena does not constitute an appearance and outlines the contents of the subpoena.

4:11-5. Depositions Outside the State

This rule was amended to provide that a deposition for the use in an action in New Jersey may be taken outside this state.

4:17-4. Form, Service and Time of Answers

This rule was amended to provide for the release of medical records to the opposing party or parties by a plaintiff or a counterclaimant in any action in which damages are sought for personal injuries.

4:21A-9. Parties in Default

Part of this rule (b) was amended to provide that if a party against whom an arbitration award is sought has had default or default judgment on liability entered against it as set forth in paragraph (a), notice of the arbitration proceeding shall be provided to that party in the form set forth in Appendix [XXVII] XXIX to these Rules no later than 30 days prior to the arbitration hearing by ordinary mail addressed to the same address at which that party was served with process.

4:23-5. Failure to Make Discovery

This rule was amended to provide that if a demand for discovery pursuant to R. 4:17, R. 4:18[-1], or R. 4:19 is not complied with and no timely motion for an extension or a protective order has been made, the party entitled to discovery may, except as otherwise provided by paragraph (c) of this rule, move, on notice, for an order dismissing or suppressing the pleading of the delinquent party. It also provides that prior to moving to dismiss, a party may move for an order compelling discovery demanded.

4:24-1. Time for Completion of Discovery

Part of this rule (d) was amended to apply to all actions commenced on or after September 5, 2000, and to require that all actions commenced prior to said date that the time for completion of discovery shall be 150 days from the date of service of the complaint on each defendant or as otherwise prescribed by the applicable differentiated case management rule in effect when the complaint was filed or by court order.

4:25-4. Designation of Trial Counsel

This rule was amended to provide that counsel shall, either in the first pleading or in a writing filed no later than ten days after the expiration of the discovery period, notify the court that designated counsel is to try the case, and set forth the name specifically. If there has been no such notification to the court, the right to designate trial counsel shall be deemed waived. No change in such designated counsel shall be made without leave of court if such change will interfere with the trial schedule.

4:57-2. Procedure for Deposit and Withdrawal of Moneys

Part of this rule (a) was amended to provide that deposits with the Superior Court shall bem ade by check to the order "Superior Court of New Jersey," and sent to the Clerk, who shall forthwith deposit it in an interest-bearing account in a depository designated by the Chief Justice, to the credit of the "Superior Court of New Jersey, and all orders to pay out shall be reviewed by the Clerk prior to payment.

Guidelines on Electronic Devices in the Courtroom, Directive 08-14

Allows lawyers to use electronic devices in the courtroom as long as they have signed an annual written agreement and carry a hardcopy or electronic copy on them at all times in the courthouse.

AMENDED OR NEW STATUTES

N.J.S.A. 26:8-40.1 Adoptees and original birth certificates.

The legislature amended 26:8-40.1 to allow adoptees to request an uncertified, long-form copy of their original birth certificate from the state registrar. In addition to the adoptee, direct descendants of the adoptee; a spouse; a sibling; adoptive parents; a legal representative of the adoptee; and state and federal agencies will also be able to request access to the adopted person’s original birth certificate. The adoptee will also have access to the medical history of the biological parents. In order to protect the privacy interests of the biological parents, the law allows three options to collect information: 1) a direct contact; 2) a confidential third party contact; or 3) access to medical records only.

N.J.S.A. 9:3-39.2 and N.J.S.A. 9:3-39.3 Adoptions and the Division of Child Protection and Permanency

In the event an adopted person was under the care and custody of the Division of Child Protection and Permanency at the time of the adoption, the director shall provide, upon request, a statement providing summaries of the medical and social characteristics of the adopted person’s birth family members, family health histories, the facts related to adoptive placements, and summaries of case record material. The requester may also request to provide any available non-identifying family medical history information concerning the adopted person. If the requester is unable to obtain any available non-identifying family medical history because the adoption facilitator is unknown, the requester can petition the court to identify the adoption facilitator.

N.J.S.A. 2A:23D New Jersey Family Collaborative Law Act

The legislature enacted legislation that would allow divorcing couples to participate in a divorce proceeding out of court. The law outlines that both parties must receive relevant information without having to resort to discovery; all information and communications are to be kept confidential; and if the parties cannot come to an agreement, the parties must obtain new counsel who cannot be lawyers from the collaborative lawyers’ firms. Also, the collaborative process will cease if one party gives notice; either party files a document that initiates a court proceeding without first obtaining the permission of the other party; either party is subject to or obtains a temporary or a final restraining order under the Prevention of Domestic Violence Act; either party files a motion for emergent relief; a party fails to provide the information needed to resolve the dispute; or the collaborative lawyer withdraws from the process.

N.J.S.A. 2A:34-23 Alimony Reform Statute

This statute reformed the alimony system by making several changes which included: eliminating permanent alimony in favor of open durational alimony; adding statutory factors to consider in granting alimony awards; requiring judges to issue a ruling explaining their analyses in determining whether there should be an award of alimony and the factors that they considered to reach their conclusion; giving judges discretion to end payments in cohabitation situations; if a marriage or civil union lasts less than 20 years, an alimony award cannot exceed the length of the relationship unless the judge decides there are exceptional circumstances; alimony payments can be modified or terminated when the payer reaches full retirement age; reimbursement alimony would not be allowed to be modified; and person paying alimony is allowed to apply for modification of alimony after a minimum of 90 days of being unemployed.