LOGD is looking to hire skilled attorneys with a portable book of business.

Posted on August 8, 2012 by Sandy Durst

Are you an experienced attorney with a portable book looking to gain more control over your career and receive a higher payout?  Lynch, Osborne, Gilmore & Durst in Princeton, NJ is looking to add one or more attorneys with a practice compatible with ours (view www.logdlawfirrm.com to see our current practice areas.  LOGD offers a convenient downtown Princeton location, a collegial atmosphere and a high degree of autonomy with administrative support and full benefits.  All candidates must have a portable book of business and be licensed in New Jersey. E-mail your cover letter and resume in confidence to Sandy Durst, Esq. at [email protected] .  Only candidates selected for an interview will be contacted.

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Prior testimony at a domestic violence trial may be used to impeach credibility.

Posted on August 6, 2012 by Sandy Durst

A recently decided Appellate decision which was approved for publication, the court clarifies the rules on when and how  testimony from a domestic violence trial (which is a civil proceeding) may be used in a subsequent criminal case.  This decision highlights the need for thorough preparation of proposed testimony to make sure the witnesses’ statements are accurate, truthful, and consistent.

CRIMINAL LAW AND PROCEDURE — STATEMENTS
14-2-7241 State v. Duprey, App. Div. (Waugh, J.A.D.) (15 pp.) This case required us to determine whether testimony given by the plaintiff or defendant during the trial of a domestic-violence matter can be used for the purposes of cross-examination in a related criminal trial. We determined that a broad application of the language of N.J.S.A. 2C:25-29(a), which provides that “testimony given by the plaintiff or defendant in the domestic violence matter shall not be used in the simultaneous or subsequent criminal proceeding against the defendant,” would impair a criminal defendant’s rights under the Confrontation Clause of the Sixth Amendment. The Legislature did not intend to permit a criminal defendant who testifies at his criminal trial to be immune from cross-examination based on prior inconsistent statements made under oath at the DV trial. We held that testimony from a DV trial can be used for the limited purpose of cross-examination in a manner consistent with the opinion, but cannot be used as affirmative evidence except as permitted by the statute.

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Is child support appropriate for an adult child? Maybe, says the court.

Posted on August 5, 2012 by Sandy Durst

 There are certain circumstances that arise which may warrant the ongoing payment of child support even after a child reaches adulthood.  The following excerpt from the NJ LAw Journal illustrates one such situation and highlights what each party must show to prevail on their claim.

FAMILY LAW — CHILD SUPPORT
20-2-7040 LaMotta v. LaMotta, App. Div. (per curiam) (6 pp.) In this post-judgment matrimonial matter, plaintiff appeals from an order denying his motion for reconsideration of a prior order denying his motion to terminate or modify child support, and his request for a medical evaluation to determine whether his estranged daughter is emancipated. Plaintiff’s motion to terminate or modify child support related to his youngest child (“Tammy”), who was thirty-one years old. Plaintiff certified that Tammy sustained a brain aneurysm when she was seventeen, which left her “partially disabled,” and he continued to pay child support due to her medical condition. Plaintiff alleged that the medical information provided by defendant did not show that Tammy was unable to support herself. Plaintiff argues that he is entitled to discovery, such as a medical examination of his daughter, and a plenary hearing to determine whether his daughter is totally disabled or whether she is capable of some type of employment. The appellate panel agrees and remands for a plenary hearing, finding there are genuine factual disputes regarding Tammy’s medical status and her ability to support herself or contribute to her own support.

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Intent to harm is required for a finding of domestic violence

Posted on August 4, 2012 by Sandy Durst

 

Here is a case that brings some clarity to the often muddy waters of NJ domestic violence law.  The law rightfully recognizes that couples may often have legitmate reasons to argue and that not all fights warrant a finding of domestic violence even when there is a physical altercation.  However, the best practice is to avoid ALL physical exchanges rather than rely on the findings of this case.  Abuse, whether physical, verbal, or emotional,  is never acceptable

FAMILY LAW — DOMESTIC VIOLENCE
20-2-7041 C.L. v. J.C., App. Div. (per curiam) (14 pp.) Defendant appeals from a final restraining order (FRO) entered against him and in favor of plaintiff based on a finding of the predicate act of assault under the Prevention of Domestic Violence Act. In part, he challenges the record as insufficient to support the offense and to warrant the issuance of restraints under the Act. The appellate panel agrees and reverses. The record does not support a finding of intent to injure. Plaintiff, understandably dismayed upon learning of defendant’s infidelity, confronted defendant in the supermarket, would not leave the store when he asked her to do so, and charged back into the store a second time to confront defendant and the “other woman” when defendant asked plaintiff and their son to go home and they would discuss the matter later. The court recognized that there was a fracas at the house with defendant’s family justifiably angry at defendant. Similarly, the court’s finding of assault at the house was based on plaintiff being “pushed aside” and falling to the ground when “she tried to intervene” in an altercation between defendant and one of their sons. That clearly does not evidence an intent by defendant to cause injury to plaintiff. Further, plaintiff did not testify with any specificity about a history of abuse or prior domestic violence and the court made no such finding. Nor did the court assess plaintiff’s need for final restraints to protect against immediate danger or future acts of domestic violence.

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Proper Drafting of a Divorce Settlement Agreement protects you down the road.

Posted on August 3, 2012 by Sandy Durst

This recent descision mentioned inn the New Jersey Law Journal highlights the importance of  hiring an attorney who was the experience and forsight needed to draft a settlement agreement that adequatley protects you if problems arise in the future. This case also stands as a warning, in my mind, against the growing trend of “DIY Divorce”.  Sometimes it’s worth the initial costs of getting your divorce done right.

FAMILY LAW – SPOUSAL SUPPORT – ATTORNEY FEES
20-2-7178 Palmer v. Ceruzzi, App. Div. (per curiam) (17 pp.) Plaintiff appeals from the post-judgment Family Part order denying her motion to enforce part of the parties’ alimony agreement incorporated into the Dual Final Judgment of Divorce (JOD), and awarding counsel fees to defendant. The trial court determined that defendant did not breach the alimony agreement. The court also determined that plaintiff breached a provision in the alimony agreement that required the parties to attempt to resolve certain alimony disputes through negotiation before filing an application with the court. Based upon plaintiff’s violation of that provision of the alimony agreement, the court awarded counsel fees to defendant. The appellate panel concludes that the trial court correctly determined both that plaintiff failed to prove defendant breached the alimony agreement, and that plaintiff breached the provision requiring her to attempt to resolve disputes over alimony through negotiation before seeking judicial intervention. However, the parties’ agreement included no provision for the payment of counsel fees by a prevailing litigant, and the trial court cited no other authority for awarding fees to defendant. Accordingly, the panel affirms that part of the Family Part order denying plaintiff’s motion to enforce the alimony agreement, but reverses that part of the order awarding counsel fees to defendant.

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