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Family Law



Changed circumstances to modify support and expenses
The case below touches on several issues - one of them is the need to look at the statutory factors in N.J.S.A. 2A:34-23(a) to decide if, and when, a child with disabilities is emancipated for child support purposes. Another issue presented is that if you are going to say something is not a necessary expense (here dental veneers for minor), you need an expert report, not just your opinion. 

FAMILY LAW

20-2-1000 Annunziato v. O’Shea, N.J. Super. App. Div. (per curiam) (10 pp.) Defendant appealed the Family Division orders that denied his motion for a modification of child support, reimbursement of certain dental expenses and counsel fees, and contribution toward college expenses. The panel reversed the decision on child support, finding that the parties had agreed in a 2011 consent judgment that child support would be reevaluated in August 2012 and by the time father did apply for a modification in November 2013, “Joseph” had turned 18 and would be considered "emancipated" but for his disabilities, and “John” was in college, changed circumstances that warranted a review and that the judge’s failure to apply the statutory factors in N.J.S.A. 2A:34-23(a) to Joseph and John, and the guidelines to the remaining two minor children, was error. The panel also remanded on the issue of college expenses, finding that the court’s decision on mother’s responsibility for college contribution was inconsistent and that the trial court failed to provide reasons for why it merely disposed of the matter by denying defendant’s motion without prejudice. The panel affirmed the ruling on dental expenses, finding that father did not provide support from an expert justifying his position that dental veneers for John constituted reasonable and necessary dental expenses and thus, they were properly excluded from reimbursement. The panel also affirmed the denial of attorney fees, finding that the court had properly considered the relevant factors under Rule 5:3-5(c).

Posted by Thomas K. on 08/26/2016

Beware agreements to sell property at a future date!
 When you get divorced, there is often a home or other property that needs to be sold. While in the midst of a divorce, you may think that you can sell the property quickly, but when the time comes to actually sell, your ex might not agree, something breaks and needs to be fixed, or the market has changed (never forget the crash of 2008). An issue often arises about who gets credit for mortgage payments while the property is for sale. It would seem that the person who put the money out of pocket should get that recouped, but that isn't the law in NJ, and many unwary people find that out the hard way. So you have to lay out how to treat the post divorce, pre sale, mortgage payment in your MSA.

Amir v. Amir 2009 WL 2513815 (unreported)

"There is no provision in the agreement, or in either of the pendente lite orders, providing a credit to plaintiff for post-judgment monies paid by him against the mortgages until the properties sold. Contrary to plaintiff's assertion, the agreement was not silent as to the post-judgment mortgage pay downs. In fact, the agreement addresses both the party who was to pay the mortgages during the period in question, and the distribution of the sale proceeds for each home. If plaintiff had wanted to recoup the post-judgment mortgage payments, he could have provided as much ...[in the agreement], or he could have inserted a date on which...home was not sold, the parties would then contribute equally to the mortgages or that he would recoup all of the payments after that date. Instead, after significant negotiations, the parties agreed that only plaintiff would pay the mortgages for an undetermined length of time, and that each party would receive  '50% of the proceeds;' that agreement is what the court enforced."

Posted by Thomas K. on 08/26/2016

Is any contact always a violation of a Restraining Order? Answer - No

Court's can be fairly quick to issue a restraining order against a husband. But just because there is a restraining order in place, when you are also co-parenting, occasional contact may occur, and such contact doesn't necessarily mean a violation.

FAMILY LAW

20-2-9880 State v. V.C., N.J. Super. App. Div. (per curiam) (8 pp.) Following a bench trial, defendant was convicted of a disorderly persons offense of contempt for violating a final restraining order issued under the Prevention of Domestic Violence Act. Defendant and J.H. (John) had been in a relationship, they had two minor children together, and the relationship ended several years ago. The children were in the custody of the maternal grandmother. John enjoyed parenting time including "every Tuesday [and] Thursday from after daycare/school until 7 p.m." On April 3, 2014, an FRO was entered that prohibited defendant from having any direct or indirect communication or contact with John. The incident that gave rise to the contempt charge occurred on Aug. 26, 2014. On that morning, John went to the children's daycare at 7:15 a.m. He testified that he decided to take the children out of daycare because they did not want to attend a scheduled field trip. When he pulled into the lot, John saw defendant and her father sitting in a truck. Defendant's father waved John over and told him he was not supposed to pick the children up until later. Defendant's father testified that defendant never exited the truck and never spoke to John. While the trial judge reasoned that defendant caused her father to make "harassing communications" to John, the appellate panel found no credible evidence in the record to support that finding. Both John and the father testified that their communications consisted of an exchange as to when John was supposed to pick up the children. Such communication did not raise to the level of harassment. The appellate panel reversed, concluding that the findings made by the trial judge were insufficient to establish beyond a reasonable doubt that defendant purposely and knowingly violated the FRO.

Posted by Thomas K. on 08/26/2016

Are a child's communication to a judge private?
 Uherek v. Sathe, 391 N.J. Super. 164, 168 (App. Div.), certif. denied, 192 N.J. 72 (2007) stands for the proposition that a transcript of a child interview may only be turned over during an actively pending custody case.  Absent that circumstance, there is no basis to turn over the child's private communications with the court - even to a parent. Id. at 169. 
Posted by Thomas K. on 08/24/2016

Restraining Order for Harrassing Your Job
Unfortunately, an ex-spouse may try and harrass you indirectly, such as interfereing with your employment, in that case, the court has the power to issue a restaining order.
 Final Restraining Order

20-2-9767 C.G. v. E.G., N.J.Super. Ch. Div. (Ocean Cnty.) (Jones, J.S.C.) (15 pp.) Plaintiff, who was estranged from defendant, her husband, sought a final restraining order pursuant to the Prevention of Domestic Violence Act based on defendant’s attempted interference with her return to her former employment as a waitress. Specifically, she alleged that defendant had been sending her threatening text messages warning her not to return to work and had been calling her former workplace and bothering her former employer, as well as his wife, alleging that plaintiff and the employer were having an affair. Plaintiff also alleged that in the past, defendant had called her derogatory names and had punched her and given her a black eye. The court found that, under the totality of the circumstances, defendant’s attempted interference with plaintiff’s employment constituted purposeful harassment and coercion and warranted the issuance of a final restraining order under the PDVA. [Filed June 30, 2016]

Posted by Thomas K. on 08/24/2016

Termination of Child Support

Bill S-1046/A-2721

On January 19, 2016, Governor Christie signed S-1046/A-2721 into law. This law establishes 19 as the age when child support will end. The new law allows for child support to continue up to age 23 for cases where the child still in high school; attending full-time college, vocational or graduate school; is disabled; if the parties reached a separate agreement; or, if continued support was granted by the court. The effective date of the law is February 1, 2017, and applies to all child support orders. Contact my office to discuss how this law may affect you and your children.
Posted by Thomas K. on 07/28/2016

   
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