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I would like to begin this blog post by thanking all those who are currently serving in the United States military and to all Veterans  that have served. Currently, there are approximately 22 million veterans of the U.S. armed forces and 1.5 million currently serving. On September 15, 2017, the U.S. Supreme Court issued a ruling potentially affecting their military families. The Supreme Court unanimously ruled in May, 2017, in the case of Howell v. Howell (No.15-1037) that a state court may not order a veteran to indemnify a divorced spouse for the loss in the divorced spouse’s portion of the veteran’s retirement pay caused by the veteran’s waiver of retirement pay to receive service-related disability benefits.

The facts surrounding case involved an Arizona court awarding Sandra Howell half of Air Force veteran John Howell’s retirement pay when the couple was divorced in 1991. Mr. Howell later became eligible for disability benefits in 2005 and elected to waive $250 of his $1,500 a month in retirement pay, which is taxable, in favor of $250 monthly disability pay, which is not taxable. The election reduced his ex-wife’s monthly divorce settlement by $125 and she went back to court requesting her half of what his pay would have been had he not chosen the election.  She won and the Arizona Supreme Court affirmed that decision.  Mr. Howell appealed the case to the United States Supreme Court which reversed the state Supreme Court’s decision.file000366641089-300x225

The Supreme Court further affirmed and clarified the prior decision that retirement pay that is received from the military as disability payments that commenced solely because of a service member’s disability is not payable to a former spouse. Mansell v. Mansell, 490, U.S. 581, 584 (1989). The Uniformed Services Former Spouses’ Protection Act (USFSPA) precludes a state court, within the context of a divorce proceeding, from dividing military disability retirement pay pursuant to state property laws because the USFSPA authorizes that only disposable retired or retainer pay be counted as marital property for equitable distribution. 10 U.S.C. § 1408(a) (4) and (7).

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Summer is over. The kids are back in school. The normal routine has returned to your life.  This is a comparatively calm time for most households. There are fewer stressors, a little more “me time”0HFF1UYS9S-300x200

and a lot less “rock ‘n roll” than during the summer.  It is a good time to take stock of where you are, what you have accomplished and for those with marital difficulty the State of the Union.

Bad marriages generally careen toward divorce until the final straw. Some people affirmatively try to resolve their problems and sensibly review their options. Others like the famous Ostrich in the middle of the crowded highway simply stick their proverbial heads in the ground until the inevitable truck cuts them down.  Marriages are work and, to a degree, organic. They need nurturing and dialogue to keep them alive. Time, indifference, the cumulative effect of unresolved arguments all weigh it down.

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When one thinks of acts domestic violence usually physical and verbal abuse come to mind. However, actions that involve the destruction of the property of another are often overlooked. file000596791788-239x300Destroying your significant other’s property falls under New Jersey statute, N.J.S.A. 2C:17-3(a)(1), which provides that an individual is guilty of criminal mischief if he or she “[p]urposely or knowingly damages tangible property of another.” Stated another way, when one sets fire to their significant other’s clothes a la “Waiting to Exhale” or their house a la Left Eye from TLC, these are acts of domestic violence and could lead to the filing of a temporary restraining order and the entry of a final restraining order.

In addition, most people do not know that even destroying jointly owned property can qualify as criminal mischief. For example, if you share a home and destroy shared property like a television, furniture or other shared property, this falls under the criminal mischief section of the Prevention of Domestic Violence Act.  In the unpublished Appellate Division case H.C.F. v. J.T.B., (A-5618-14T3 (App. Div. Sept. 7, 2017),  the appellate court affirmed the entry of a final restraining order on the grounds of criminal mischief. In this case, the plaintiff and defendant were married and resided in a two-story, three-bedroom house. The plaintiff testified that the parties were sleeping in separate rooms for some time and that during an argument the defendant punched the door to her room with a closed fist causing the door to come off the hinges. The defendant admitted to punching the door to the plaintiff’s bedroom. The trial judge found that the case came down to credibility and found the plaintiff’s version more credible. Although, the parties both owned the house the trial court noted that that does not give the defendant the right to damage property in the house because both of the parties have an undivided interest in the home. The trial court stated that the defendant knew what he was doing and admitted to punching the door.

The Appellate Division affirmed the trial court’s ruling and cited to N.T.B. v. D.D.B., 442 N.J. Super. 205, 222 (App. Div. 2015), to support finding that damage to a spouse’s undivided interest in the home as a tenant by the entirety constitutes the predicate act of criminal mischief. In the aforementioned case, the husband during the first incident destroyed speakers that were in the wife’s bedroom by pouring juice on them, and then he proceeded to throw them in the toilet after his wife refused to lower the volume of the music. During the second incident, the husband used his body to open the door to the wife’s bedroom when he discovered it was locked with the wife and their daughter inside the bedroom. The husband slammed his body into the wife’s bedroom door causing the frame to splinter. The marital home was jointly owned and purchased after the parties married. Thereafter, both parties obtained temporary restraining orders against the other.

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In the case of Slawinski v. Nicholas, 448 N.J. Super. 25 (App. Div. 2016), the Appellate Division addressed a dispute involving parents who entered into a consent order establishing rights to grandparent visitation but then later wished to abrogate those rights. In this case, a motion was brought by the mother to terminate the visitation rights of the fraternal grandparents, claiming that the children were being harmed by the visits. The Appellate Division reversed the decision of trial court and stated that a parent could not unilaterally modify the consent order granting rights of grandparent visitation. The Court rejected the mother’s argument that, “[T]here is no burden that [mother] has to do anything other than say this is not working out, I tried.” The Appellate Division addressed grandparent visitation, as follows:

“We recognize that a parent’s fundamental right to raise a child as he or she sees fit encompasses the authority to determine visitation by third parties, including grandparents. See Moriarty v. Bradt, 177 N.J. 84, 114-15 (2003), cert. den., 540 U.S. 1177 (2004). Yet, that autonomy gives way to the need to protect the child from harm. Id. at 115. Thus, “grandparents seeking visitation . . . must prove by a preponderance of the evidence that denial of the visitation they seek would result in harm to the child.” Id. at 88. “If the court agrees that the potential for harm has been shown, the presumption in favor of parental decision making will be deemFAye_and_Dick-300x230ed overcome.” Id. at 117.

Still, proof of harm involves a greater showing than simply the best interests of the child. Id. at 116 (stating that a dispute between a “fit custodial parent and the child’s grandparent is not a contest between equals[,]” Consequently “the best interest standard, which is the tiebreaker between fit parents, is inapplicable”). Substantively, it is a “heavy burden.” Major v. Maguire, 224 N.J. 1, 18 (2016); cf. Fawzy v. Fawzy, 199 N.J. 456, 479 (2009) (“The threat of harm is a significantly higher burden than a best-interests analysis”). The harm to the grandchild must be “a particular identifiable harm, specific to the child.” Mizrahi v. Cannon, 375 N.J. Super. 221, 234 (App. Div. 2005). It “generally rests on the existence of an unusually close relationship between the grandparent and the child, or on traumatic circumstances such as a parent’s death.” Daniels v. Daniels, 381 N.J. Super. 286, 294 (App. Div. 2005). By contrast, missed opportunities for creating “happy memories” do not suffice. Mizrahi, supra, 375 N.J. Super. at 234. Only after the grandparent vaults the proof-of-harm threshold will the court apply a best-interests analysis to resolve disputes over visitation details. Moriarty, supra, 177 N.J. at 117.

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On August 15, 2017, the New Jersey Appellate Division approved for publication the decision in the matter of E.S. v. H.A (A-3230-14T2 and A-3256-14T2), in which the Appellate Division addressed whether a parent may be required to admit to a crime as a condition for that parent to be able to make an application for visitation with one’s child.  The Appellate Division concluded that parents cannot be required by the state to forego their Constitutional right against self-incrimination as a condition to seek custody or visitation with their child.

In this case, the parties divorced in 2009, but they had been unable to resolve their custody and parenting time dispute over their son, Richard, by the time of the divorce.  During the litigation, Plaintiff’s two requests for domestic violence restraining orders against Defendant were denied.  During the litigation she reported to the Division of Child Protection and Permanency (DCPP) that Defendant had sexually abused Richard on two occasions, leading to the suspension of Defendant’s visitation.   One month after the divorce, DCPP determined that the “abuse was substantiated for sexual molestation” of Richard by Defendant as to one of the two alleged incidents.  While Defendant pursued an administrative appeal of the DCPP findings, Plaintiff filed an application in the family court seeking to reinstate a suspension of Defendant’s parenting time.  The family court scheduled a hearing to determine whether it was in Richard’s best interest for parenting time with Defendant to resume, and appointed a psychologist to conduct an evaluation.

By the time of the hearing in 2012, Defendant had withdrawn his appeal of the DCPP findings.  The family court in 2013 issued an oral opinion, finding that there was clear and convincing evidence that Defendant had sexually abused Richard.  The court granted Plaintiff sole legal and physical custody of Richard and denied Defendant parenting time.  As recommended by the psychological experts, the court further ordered that if the Defendant (1) admitted wrong-doing; (2) submitted to a psycho-sexual evaluation; and (3) participated in individual therapy, he could apply for a consideration of future parenting time through Therapeutic Management Reunification.

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Approximately three years after the firestorm caused by the release of the elevator video showing star running back, Ray Rice, punching and knocking unconscious his then fiancé, the National Football League is once again in the headlines, this time for announcing that after its own investigation, the league was suspending another running back, Ezekiel Elliott, for six games for violating its Personal Conduct Policy, concluding that Mr. Elliott had committed acts of domestic abuse against his former girlfriend in 2016. Domestic-violence-2-300x123While the NFL has had to deal with a number of domestic violence incidents involving a number of players since the Ray Rice situation, the reason why this made the headlines was because it involved one of its star players, a winner of several Rookie of the Year Awards for his performance last year as a member of “America’s Team”, The Dallas Cowboys. Unlike the debacle in the Ray Rice matter, the NFL Commissioner, Roger Goodell, for the most part has been lauded for his handling of the Elliott matter.

This six game suspension appears consistent with the NFL Personal Conduct Policy instituted after the Ray Rice situation whereby those found to have committed domestic violence would be subject to a suspension of six weeks without pay for the first offense, with a second offense resulting in banishment from the league. Mr. Elliott has continuously denied the accusations made against him, and has filed an appeal of his suspension. How it will play out is yet to be determined. Whether Mr. Elliott did or did not do the things he was accused of, or whether the punishment meted out by the NFL was warranted is not the subject of this blog. Rather, it is a powerful example that when it comes to domestic violence even in the absence of a legal adjudication of guilt or innocence, others may still pass judgment on accusations with resulting serious consequences.

Mr. Elliott was accused by his former girlfriend of pushing her against the wall in February, 2016 and of assaulting her on several occasions in July, 2016 resulting in bruises about her body. While reports were filed, Mr. Elliott was not arrested nor were charges filed in either case. Notwithstanding this, because allegations of domestic violence were raised, the NFL launched its own investigation, consistent with its standard protocol, to determine if the player violated its Personal Conduct Policy which might result in discipline even if the player was not legally charged or convicted. As a result of this investigation, the NFL concluded that there was “substantial and persuasive evidence” supporting a finding that Mr. Elliott had been physically violent with the accused, determined that he violated the Personal Conduct Policy and assessed its six game suspension. Mr. Elliott has challenged these findings. Even though Mr. Elliott was neither charged nor convicted in a court of law, according to the NFL, Mr. Elliott is considered guilty of the actions of which he was accused. As a result, beyond the loss of six games pay, Mr. Elliott’s reputation and marketability likely had been irreparably harmed. A second set of domestic violence accusations may result in a permanent loss of his livelihood. Serious consequences indeed. If Mr. Elliott did the things he was accused of, he deserves what was coming to him. If not, what recourse would he have? Since no charges-domestic violence or criminal-were filed, he could not even fight the accusations in the court of law to determine his guilt or innocence. Upon which standards did the NFL conduct its investigation? Was it like a prosecutor presenting only its case to a grand jury? To what extent was Mr. Elliott or his representatives allowed to participate in that investigation or confront the evidence or witnesses against him? Did it start with a presumption of guilt as a backlash to the beating the NFL took in the court of public opinion in the Rice case? What does all this have to do with domestic violence cases generally?

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Nothing is more precious to us than our children. The Supreme Court of the United States has established the right to know one’s children as a fundamental Constitutional right. In New Jersey the9-08-3-300x225 right to know and raise one’s children is firmly entrenched in statutory and case law.  In our mobile society the right to know one’s children post-divorce has often come in conflict with the post-divorce business or social needs of the parents.  New Jersey, like many North Eastern states, has a highly transient population who has come here for business or personal reasons and may find business or social needs more compelling than identity to the State as home. When parents of children feel compelled to move, there is often contention over the impact of such a move on custody of the children. Continue reading

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Divorce as defined in Webster’s Dictionary means, “the action or instance of legally dissolving a marriage.” While a divorce does end a marriage, it is not “THE END”.   Unfortunately, when in theIMG_6784-300x200 midst of a divorce is it almost impossible for one to see the new beginnings that lay before them. Continue reading

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This past week the New Jersey Appellate Division issued an unpublished opinion in the case of V.J.C vs. M.V. (docket no. A-4587-15T3).  In this case the defendant appealed from a final d744f80a269bdfa75c34d7830ed52c13-300x200restraining order (FRO) entered by the trial court in favor of plaintiff pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. The defendant claimed that the trial court abused its discretion in denying his request for a short adjournment of the April 14, 2016 hearing until his attorney could arrive at the courthouse. The series of events that led to the defendant being in court that day are as follows.  Continue reading

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Earlier this month, a March, 2017 written opinion by family court judge the Honorable Russell J. Passomano, J.S.C. was approved for publication in the matter of BG-v-LH (FM-07-468-13).   In this published opinion the court addressed issues of296050aba1c021ff4a7e4cab0ed498d2-1-300x200 jurisdiction in a custody and parenting time dispute where one party had relocated with the children out of the state of New Jersey, but the parties had reached an agreement as part of their divorce that future custody disputes would be decided under New Jersey law and in New Jersey courts.  This case contains a detailed analysis that a family court undergoes to resolve jurisdiction issues and the application of the Uniform Child Custody Jurisdiction and Enforcement Act. Continue reading