Plenary hearing required to resolve factual disputes

Posted on August 27, 2013 by Sandy Durst

As one might imaging, it is not unexpected that divorcing spouses can hold very different views on the underlying facts and circumstances surrounding their case.  This is especially true when the differing views can alter the outcome and tip the scales in favor of one party over the other. When the certifications submitted by each party reveal factual disputes on a material issue the court is required to conduct a plenary hearing to that more evidence can be supplied and the dispute properly resolved.

FAMILY LAW 20-2-1029 Loch v. Loch, App. Div. (per curiam) (15 pp.) Plaintiff Thomas Loch appeals from a Family Part order granting defendant Joyce Loch’s motion for enforcement of the parties’ property settlement agreement and denying his motion to confirm the parties’ modification of the support and equitable distribution terms of the PSA. He also appeals from that part of the order compelling him to obtain the life insurance required by the PSA and denying his request for counsel fees. The panel affirms as to the insurance policy and attorney fees. However, finding that the court erred in determining the support and equitable distribution aspects of the motion without holding oral argument and an evidentiary hearing where there is an issue of whether the parties’ course of conduct showed a waiver of the requirement in the PSA that any modification of its terms be in writing and where the parties certifications show material factual disputes, the panel remands for a plenary hearing on these issues.

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Cross Examination by defaulting party allowed at divorce hearing.

Posted on August 24, 2013 by Sandy Durst

If you want a divorce in NJ it is not necessary for the other party to sign the divorce papers, agree with the decision to obtain a divorce or even participate in the proceedings.  There are situations when one party simply refuses to engage in the process.  NJ law provides a mechanism that permits one litigant to get divorced when faced spouse who ignores the proceedings.  This is accomplished by having the offending party found to be in default.  The procedural requirements for finding someone on default are straightforward but must be precisely followed.  The summary below highlights the consequences of being found in default.  If you are served with a divorce complaint, respond promptly!

 

FAMILY LAW 20-2-1001 Lanzaro v. Lanzaro, App. Div. (per curiam) (12 pp.) Defendant appeals from a final judgment of divorce by default. The panel affirms, finding that the court did not err in denying defendant’s oral request to vacate default since he did not comply with the prerequisites of Rule 4:43-3 where he filed no written motion, and did not even present one to the court at the proof hearing, his failure to comply with previous court orders was contumacious, and he failed to present a proposed answer or any other filing to show a meritorious defense to plaintiff’s equitable distribution claims. The panel also finds no error in the court’s handling of the default hearing as there was no inappropriate questioning by the court, defense counsel was permitted to cross-examine plaintiff regarding her proposed equitable distribution of assets, subject to appropriate limitations for a default hearing, and defendant had no right to testify and present affirmative evidence at the hearing.

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No obligation to produce income verification in child support case 2 years afte divorce

Posted on August 22, 2013 by Sandy Durst

In a recent post I wrote about an ex-husband who was ordered to provide his tax returns to his ex-wife on an ongoing basis for so long as he had an alimony obligation and alimony arrearages existed.  Based on the case at issue in that post, one could logically assume that in a post-judgment child support hearing, that both parties would be required to verify their current income.  However, as detailed below, the ex-wife was not required to verify her current income when the ex-husband sought to modify his child support just two years after the divorce.

FAMILY LAW 20-2-0988 Newkirk-Sanchez v. Newkirk, App. Div. (per curiam) (9 pp.) In this post-divorce matter, defendant-husband appeals from the Family Part’s orders denying his motion to reduce his child support obligation and sanctioning him $2,000 in reimbursement of plaintiff-wife’s attorney’s fees. The Family Part declined, without prejudice, to order wife to produce financial information to verify her income less than two years after the divorce judgment had been entered with an agreement on child support. The Family Part did not abuse its discretion in declining to order wife to produce financial information relevant to child support so soon after the parties’ divorce and voluntary agreement. Having been denied that relief once, another motion only five months later was also too soon for the court to reconsider the parties’ financial circumstances. Because the court had recently ruled on husband’s similar applications to modify parenting time and reduce child support, it viewed another motion requesting the same relief to be frivolous and harassing to wife. It was not an abuse of the Family Part’s discretionary authority to award attorney’s fees as a sanction against husband.

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Continuing duty to exchange tax returns after NJ Divorce

Posted on August 20, 2013 by Sandy Durst

In a recent unpublished opinion the Appellate Division required a litigant paying alimony to provide tax returns to his former spouse for so long as alimony arrearages existed.  After a history of failing to abide by agreements to pay alimony, the defendant claimed he was unable to pay due to his current economic circumstances.  Based on this claim, the court felt the only fair way for the plaintiff to be able to asses such claims was for her to be able to review his tax returns.

FAMILY LAW 20-2-0922 Burkett v. Mejia, App. Div. (per curiam) (7 pp.) Defendant appeals from a portion of the Family Part’s post-judgment order in this matrimonial matter requiring him to provide plaintiff with, among other things, his income tax returns each year until he has paid in full his substantial arrearages in alimony and equitable distribution. Defendant argues that that portion of the motion judge’s order is not based upon “good cause” and violates defendant’s “legitimate expectation of privacy.” The appellate panel disagrees and affirms. Defendant has the capacity to earn a high income, and his finances are highly sophisticated, with interests in properties in several states. Yet, he has defaulted twice on two agreements he voluntarily entered into with plaintiff for the payment of alimony and equitable distribution. On each occasion, he cited economic circumstances beyond his control that led to his defaults. Plaintiff has no alternative way to monitor defendant’s finances or to determine whether he has the resources to pay the debt he concedes he owes to her.

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Pro se litigant held to terms in a consent order

Posted on August 17, 2013 by Sandy Durst

All too often people make the decision to represent themselves in divorce proceedings.  In doing so, the litigant runs the risks of entering into agreements or having decisions made without a full understanding of the law.  The case referenced below highlights just one of the pitfalls that a pro se litigant can face.  I frequently have potential clients come to me after they entered into a consent order and then develop “buyer’s remorse”.  This case demonstrates the a court will not take a request to modify or rescind a consent order lightly.

 

FAMILY LAW 20-2-0921 Briseno v. Burton, App. Div. (per curiam) (10 pp.) In this unopposed appeal, defendant appeals the Family Part order that confirmed a consent order that permitted plaintiff to relocate to Florida with the parties’ children. Defendant seeks to invalidate the consent order on the bases that he signed it while under duress, threats, and coercion; that he was not represented by counsel; and that under Rule 4:50-1(f), if the agreement was upheld, the result would be unjust, oppressive, and inequitable. The appellate panel finds his arguments unpersuasive. Defendant was well aware of plaintiff’s desire to relocate, he had the proposed agreement for weeks, and he participated in modifying the language. Furthermore, defendant had ample time to consult an attorney. The panel concludes that the trial court’s finding that defendant’s decision to sign the consent agreement was his own decision and was not made under duress is amply supported by the record. Also, this case presents no such exceptional circumstances. The fact that defendant now believes that the terms of the agreement are unfavorable to him does not warrant invalidation of the consent order.

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