New Jersey Family Law Blog

Parties’ daughter was killed in an automobile accident on October 6, 2007. On January 10, 2008, the plaintiff filed a pro se motion seeking, inter alia, to reduce child support. The plaintiff argued that any modification should be retroactive to the date of the daughters death, while the defendant posited that the filing date of the plaintiff’s motion should go

The applicable law is N.J.S.A. 2A:17-56.23(a), which basically states that child support can not be made retroactive and will only be permitted from the date of the filing of the motion.

The issue here was whether child support is to be amended on the date of the child’s death or the filing date of the motion. There have been several scenarios where the courts have granted retroactive modification to child support. In the case of Keegan v. Keegan, 326, N.J. Super. 289, 741 A.2d 134 (App. Div. 1999), trial court granted a retroactive increase in the aspect of child support. Halliwell v. Halliwell, 326 N.J. Super. 442, 741 A.2d 638 (App. Div. 1999), dealt with the issue of retroactive modification of an obligor who was incarcerated for an extended period of time

The most analogous case to the one at bar was Mahoney v. Pennell, 285 N.J. Super. 638, 667 A.2d 1119 (App. Div. 1995), dealt with whether retroactive modification was permissible in the event of an emancipated child. The court said, “we cannot ascribe to this legislation, nor do we find any indication that the legislature so intended, to bar termination of child support retroactively to the time a child became emancipated.” Id. at 643.

The court in this case said that upon the death of the parties’ daughter, the duty to pay support for her ceased. To bar retroactive modification would be to punish financially an obligor who has thoughtfully, and in good faith, allowed an appropriate period of grieving and healing to take place before seeking redress in court.

Accordingly, this court found that N.J.S.A. 2A:17-56.23(a) does not bar the modification of child support retroactive to the date of death of any of the parties’ children.

Court Enunciates New Test for Tolling Child Sex Abuse Statute of Limitations
By Michael Booth
New Jersey Law Journal
June 11, 2009

The state Supreme Court on Thursday set out a two-stage analysis that trial judges must conduct to decide whether and for how long the two-year statute of limitations in child sexual abuse suits can be tolled.

The formula, which includes objective and subjective elements, will determine whether a Morris County man can pursue a suit, filed in 2004, alleging that his stepfather sexually assaulted him multiple times from 1987 and 1990, when he was between ages 10 to 12.

Superior Judge David Rand dismissed the suit as time-barred, but the Appellate Division reversed, saying the plaintiff did not appreciate that the abuse caused his emotional injuries until undergoing psychotherapy in 2002 and thus that the complaint was filed within two years of accrual of the cause of action.

In Thursday's ruling, R L. v. Voytac, A-61-08, Justice John Wallace Jr. said both lower courts erred. Rand did not conduct a thorough enough inquiry into when the plaintiff should have known that the root of his problems lay with the alleged sexual abuse, which the stepfather, Kenneth Voytac, denies.

And the Appellate Division mistakenly conflated two provisions in the Child Sexual Abuse Act. An action for child sex abuse must be filed within two years after "the reasonable discovery of the injury and its casual relationship to the act of sexual abuse" but the limitations period may be tolled because of the plaintiff's "mental state, duress by the defendant, or any other equitable grounds," the act says.

"We conclude that pursuant to the Act, the trial court must first determine when a reasonable person subjected to childhood abuse would discover that the defendant's conduct caused him or her injury. That is an objective test," wrote Wallace. "If that period is more than two years prior to the filing of the complaint, then the court must next determine whether the statute should be tolled because of 'the mental state, duress by the defendant, or any other equitable grounds.'"

The justices remanded the case for that analysis and said that since Rand made several factual and credibility findings, another judge should handle it.

Voytac's lawyer, William Johnson, says he and is client are pleased with the ruling. "The Court correctly interpreted the act as saying there is an objective standard to be applied when determining when the cause of action accrued," says Johnson, of Dover's Johnson & Johnson. "The Appellate Division had applied a subjective standard."

R.L.'s lawyer, Victor Rotolo, who runs his own firm in Lebanon, says he relishes retrying the case. "I have to go back to the beginning, but that's fine," he says. "The ruling gives plaintiffs a clear roadmap as to what they have to do."

New York Times
By: Julie Bosman

The same story echoed a dozen times through Room E8 of Manhattan Family Court in a single day: fathers, pinched by the recession, pleading for a reduction in child support.

A salesman at Saks Fifth Avenue who is estranged from his teenage daughter said he feared he would be included in the next round of layoffs expected at his store.

A man who had been laid off from a factory said he managed to find work at Mets games, but for less pay, $9 an hour. Another man, on the verge of eviction, begged for a break from his $315 monthly payments.

“Last week was my child’s birthday, and I couldn’t get him a present,” he said, burying his head in his hands. “This is killing me.”

Since January, Family Court in New York has been filled with urgent requests like these, alarming judges and overwhelming calendars with what are known as modification cases.

Continue reading "Fighting over Child Support After the Pink Slip Arrives" »

Judges may invoke specific performance remedy, appeals panel says
By Mary Pat Gallagher

New Jersey Law Journal

March 10, 2009

When couples break up, judges can decide who gets custody of pets based on their unique sentimental value, a New Jersey appeals court ruled Tuesday, setting a precedent in the state.

The published opinion in Houseman v. Dare, A-2415-07, reverses a trial court's finding that pets differ from personal property like heirlooms, family treasures and works of art and therefore that the equitable remedy of specific performance is not available.

Appellate Division Judges Jane Grall, Stephen Skillman and Ronald Graves found that determination erroneous as a matter of law and remanded for further proceedings.

"There is no reason for a court of equity to be more wary in resolving competing claims for possession of a pet, based on one party's sincere affection for and attachment to it than in resolving competing claims based on one party's sincere sentiment for an inanimate object based on a relationship with the donor," Grall wrote.

The case arose out of the broken engagement of Doreen Houseman and Eric Dane. The couple started dating in 1993, bought a house together in Williamstown in 1999 and became engaged in 2000. In 2003, they paid $1,500 for a pug named Dexter.

Dane broke off the engagement in May 2006 and when Houseman moved out two months later, she took Dexter with her, along with what Grall described as his "paraphernalia." After that, Dexter lived with Houseman, who allowed Dane to take the dog for visits.

In late February 2007, Houseman went on vacation and left Dexter with Dane, but he refused to surrender the dog when she returned on March 4.

Continue reading "New Business for Courts: Pet Custody" »

Thorpe v. Wiggan, 405 N.J. Super. 68, (2009).

The doctrine of parental immunity has always protected parents from judicial intervention in normal child rearing decisions. The New Jersey Superior Court Appellate Division recently reexamined this doctrine in Thorpe v. Wiggan. This matter involves the tragic death of a four year-old child, Joseph Wiggan, who burned to death while a passenger in a car driven by his father. This is a negligence acting being brought by the child’s mother against defendant for failing to remove his son from the car before the fire started. The plaintiff appealed the order dismissing her complaint, and the appellate court reversed and remanded for a new trial.
There are two versions of the facts. The first was relayed by defendant to a state police detective via telephone. In this version, he was driving on Route 78 when he noticed that his car was emitting smoke. He then heard “2 bangs,” & he smelled the smoke also, so he pulled over into the shoulder. He got out of the vehicle checked around and so the car was full of smoke. His child was in the back seat, but he was unable to get him out. He wound up in the hospital. He got burned.
The second version of the events, the defendant claims he heard the same “2 bangs,” and he believed a tire blew up. The care then “blew up in flames.” He pulled the car to the shoulder, ran into the bushes and rolled to put the fire out that was on him. Plaintiff conceded that she had no claim against defendant for his second version of the events. Plaintiffs only claim lies under the State Police version.

Continue reading "Doctrine of Parental Immunity not a protection from ordinary negligence." »

By Michael Booth
New Jersey Law Journal

The Senate Judiciary Committee on Monday approved bipartisan-sponsored legislation that would require all palimony agreements to be in writing and signed in order to be enforceable.

The bill, S-2091 , amends N.J.S.A. 25:1-5, which already requires that prenuptial agreements be put into writing, to include palimony agreements. It adds a new paragraph "h" stating: "A promise by one party to a non-marital personal relationship to provide support for the other party, either during the course of such relationship or after its termination" shall be in writing and signed by the party to be charged.

Litigation of palimony claims is heavily fact-intensive and often acrimonious, since courts are typically dealing with nonexplicit promises of support between unmarried couples. The difficulty was compounded last year by the ruling in Devaney v. L'Esperance , 195 N.J. Super. 247 (App. Div. 2008), which held that cohabitation is not a necessary element of the marital-type relationship needed to be proved.

Claims that are asserted after the death of one of the parties are even harder to prove and are often complicated by contests raised by other claimants to the decedent's estate, such as in In re Estate of Roccamonte , 174 N.J. 381 (2002), which held enforceable an implied promise of support for life.

The bill would modify both of those rulings as well as Kozlowski v. Kozlowski , 80 N.J. 378 (1978), the case that first recognized the availability of palimony in New Jersey.

"This will save a lot of work for the judiciary in trying to determine whether these promises are enforceable," said one of the sponsors, Sen. Nicholas Scutari, D-Union. The other sponsor is Sen. Gerald Cardinale, R-Bergen, the committee's ranking Republican.

On the advice of Sen. Robert Smith, D-Middlesex, Scutari agreed to include language that would allow courts to void an agreement if the parties were not told that they had the right to seek independent counsel before signing. If the parties did consult counsel, the agreement would be enforceable.

The bill passed the committee 9-1, with only Sen. Loretta Weinberg, D-Bergen, voting no. She said she preferred that the bill include language requiring cohabitation.

The bill drew no public testimony and passed the committee without opposition. It now goes to the full Senate.

Appellant, Carol J. Broach, suffered a stroke in 2005. After she suffered this stroker her son, William S. Broach, was appointed as her guardian. As a result of the stroke appellant was left mentally incompetent. She is unable to testify intelligently or express her wishes. Acting in his capacity as guardian, William S. Broach filed a complaint for divorce on his mother's behalf in January 2006. Broach v. Broach, 2008 WL 3582809 (Ohio App. 2 Dist).

The Trial court held a competency hearing and found the appellant “is unable to form the requisite intent to maintain a divorce action.” Id. The trial court rejected the argument that the guardian could continue the action on his mother's behalf. The trial court then dismissed the complaint due to the Appellant's incompetency.

The only contest issue on appeal was that the trial court erred in ruling the guardian could not bring this action on her behalf. In support of her argument appellant cited State ex rel. Broer v. Alexander (1963), 175 Ohio St. 24, 23 O.O.2d 298, 190 N.E.2d 923, and Heskett v. Heskett (Nov 25, 1991), Champaign App. N. 91-CA-05, 1991 WL 256136. In Broer, the court held that “[t]he appointment of a guardian for a mentally incompetent person will not abate a divorce action instituted prior to the incompetency.” Broer, at paragraph one of the syllabus. In Heskett, the court that decided this case addressed a similar situation involving a party who was competent when he filed for divorce but who became incompetent while the action was pending. The court cited Broer and held that a guardian could continue that action on behalf of the incompetent party.

Continue reading "Ohio Appellate court holds incompetent wife's guardian had authority to file divorce on her behalf" »

Court holds that cohabitation is not essential for an award
By Edward S. Snyder, 193 N.J.L.J.652

The law of palimony has evolved and expanded over the last three decades and the Supreme Court of New Jersey has been active in defining its parameters. During the 2007-08 term the court once again delved into this area of family law by deciding Devaney v. L'Esperance, 195 N.J. 247 (2008). holding that cohabitation is not essential for an award of palimony, however declaring that it is just one of several factors to be considered by a trial court

Genesis of the Palimony Claim in New Jersey

Palimony is essentially "alimony" where the parties were never married. The true definition of palimony, however, can be described "in general terms [a]s a claim for support between unmarried persons." Devaney, supra, 195 N.J. 247 at 16.

Continue reading "Palimony Re-examined and Redefined" »

“[A]ny party is free to retire, take a vow of poverty, write poetry, or hawk roses in an airport, if he or she sees fit. The only limit is discontinuance of the financial aid the former spouse requires. The reason for this is that the duty of self-fulfillment must give way to the pre-existing duty which runs between spouses who have been in a marriage which has failed.” Deegan v. Deegan, 254 N.J. Super. 350, 358-59.

Continue reading "Demystifying the imputation of income." »

A three-judge Appellate Division panel recently ruled out binding, nonappealable arbitration as a way to settle custody and parenting time disputes. Arbitration is a favored remedy for settling disputes, but parties can’t bargain away the court’s obligation under the principle of parens patriae to ensure the best interests of children, the appeals court said.

Continue reading "No Binding Arbitration of Custody or Parenting-Time Issues, Court Says" »

The New Jersey Supreme Court ruled last month that “[c]ohabitation is not an essential requirement for a cause of action for palimony, but a marital-type relationship is required.” In Devaney V. L’Esperance, Not Reported A.2d., 2008 WL 2491976 (NJ). The Court by a 6-1 majority broke away from the precedent set by almost every state court by saying a Plaintiff need only prove that there was a “marital-type relationship.” The Court found that no such relationship existed in this case.

Continue reading "New Jersey Supreme Court says cohabitation no longer a requirement for Palimony." »

What if you do not have a will, you only have a few weeks left to live, and you do not want your spouse to inherit your estate?

In New Jersey, a surviving spouse has a right of election to take an elective share of one-third of the augmented estate under certain limitations and conditions spouse.

Continue reading "New Jersey: Cutting Off the Elective Share " »