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Despite the recent heat wave, Fall has arrived. Besides the presumably cooler weather, when the calendar hits September, we can always look forward to a number of things – school starts, rush hour traffic resumes, shorter days, etc. However, for us lawyers September brings with it the annual amendments that have been approved by our Supreme Court to the Rules Governing the Courts of the State of New Jersey. Unlike last year, a number of these recent Rule Amendments directly impact upon Family Part Practice. A number were in response to statutory changes that recently went into effect. In light of the number involved, I will summarize and discuss these Amendments over the course of several blog posts. Court-Rules-2018-300x300

First, there have been a number of significant changes to Rule 5:3-5, the rule dealing with attorney’s fees, retainer agreements and withdrawal of counsel in Family Actions. Under Rule 4:42-9, an allowance for the awarding of attorneys fees in Family Actions is expressly authorized. Rule 5:3-5 set forth the procedural and substantive prerequisites and requirements for such fee applications, not only referring to the factors enumerated in the Rules of Professional Conduct (RPC 1.5(a)), but the provisions of Rule 4:42-9(b), (c), and (d).  Rule 4:42-9 (b) requires that all applications for the allowance of fees be supported by an affidavit of services addressing the factors in the RPC 1.5. Notwithstanding the fact that reference to this Rule was included already, the Supreme Court felt it prudent to repeat the language of Rule 4:42-9 (b) almost verbatim as new subsection Rule 5:3-5(d), and thereby avoid any doubt that all such applications for the allowance of fees be supported by an affidavit of services. As a result, former subsection (d) became subsection(e), dealing with withdrawal from representation.

In actuality, the most significant amendment to Rule\5:3-5 was the addition of subparagraph (e)(3) dealing with the handling of motions to withdraw from a procedural or scheduling basis. Often a breakdown in the attorney/client relationship occurs during the midst of the divorce litigation. Sometimes this occurs when there are other disputed issues that are being brought before the court by way of motion. The problem which often arose was how these substantive disputes would or could be addressed where a breakdown in one party’s attorney/client relationship had also lead to an application to withdraw or to be relieved being filed.  The new Rule 5:3-5(e)(3) attempts to address this predicament. This Rule provides that upon the filing of a motion or cross motion to be relieved as counsel, the court, absent good cause, shall sever all other relief sought by the motion or cross motion from the motion to be relieved as counsel, and whereby the court would first decide the motion to be relieved and, in the order either granting or denying the motion to be relieved include a scheduling order for the filing of responsive pleadings and the return date for all other relief sought in the motion or cross motion. This is obviously designed to avoid situations where the party and/or counsel are forced to address substantive matters when there has been a apparent breakdown of relationship and/or conflict between a party and his or her attorney at that juncture.

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e3bc10d77963468f2705f7119c049b73-300x199On September 20, 2017 the New Jersey Appellate Division approved a domestic violence case for publication the matter of L.C. v. M.A.J. (A4933-15T2), in which the Appellate Division addressed the use of pre-trial in limine motions, which are pretrial motions commonly used to request the court to make legal determinations about evidence before trial, to seek an eve of trial dismissal of a litigant’s pleadings.

The Plaintiff in this case filed a domestic violence complaint in May, 2016 in which she alleged that the defendant was harassing her by sending communications to her and her employer; the complaint further alleged a history of past domestic violence that included physical abuse and controlling conduct.   At the final hearing, Defendant filed a motion in limine to dismiss that he claimed was based on  Rule 4:6-2(e) for failure to state a claim upon which relief may be granted.   His actual pleadings, did not address whether Plaintiff met the elements for a cause of action but asserted that his communications related to parenting issues, not harassment.   The court granted the motion to dismiss the temporary domestic violence restraining order and heard no testimony.

The Appellate Division reversed.  The Appellate Division condemned the use of in limine motions that are dispositive of or seek to terminate an action on the eve of trial.  Instead, an in limine motion at such a late date should only address preliminary or evidentiary issues, and even then such in limine motions are disfavored and should be heard sparingly.  Defendant’s motion did not ask the court to resolve a preliminary or evidence issue, but a sudden and summary dismissal of Plaintiff’s complaint, which the Appellate Division found improper, especially in a domestic violence matter where an alleged victim’s safety was at issue.   The Appellate Division stated that in rare cases could a domestic violence case be dismissed before trial, and even then, due process required adequate notice to the plaintiff and an opportunity to respond and file his/her own papers, which Plaintiff in this case did not have an opportunity to do with so little notice.   If Defendant felt that he had grounds for dismissal, he should have instead requested an involuntary dismissal at the close of the plaintiff’s case or at the close of all the evidence.

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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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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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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