Thirteen New Updates in Family Law

May 10, 2024 | Written by: Diana N. Fredericks, Esq. | Share

Every few months, I blog about recent updates in the many areas of family law, including divorce, custody, parenting time, domestic violence, alimony, child support, retirement assets, counsel fees, and so on.  The list is endless.  It is critical that family law attorneys stay informed of changes that can affect clients’ cases.  Below is a summary of some of the most recent updates. 

1. R. v. M.T. – this case addressed the requirements for a final protective order under the Sexual Assault Survivor Protection Act (SASPA).  This Supreme Court decision confirmed that SASPA's language creates a permissive standard easily satisfied by credible testimony regarding emotional and psychological harm.  The decision underscores the Legislature's intent to provide broad and permissive standards for issuing protective orders under SASPA, differentiating it from the standards under the Prevention of Domestic Violence Act.

2. S. V. R.H. – this case involved the appeal of a domestic violence restraining order. The Appellate Division remanded the matter back to the trial court to make specific findings as to the second prong of Silver, regarding whether the husband needed an FRO for his protection.

3. DQ v. FQ – this case appealed a domestic violence matter in which the Division of Child Protection & Permanency (DCP&P) was involved, regarding the possible sexual assault of the minor children, but in which the allegations of abuse were found not valid.

4. Kadzielawa v. Kadzielawa – this was a post-judgment appeal on the limited issue of counsel fees. The trial judge found the defendant took "an unreasonable position from the outset of this litigation," lost her appeal, and proceeded in "bad faith" by deliberately violating the terms of the parties' settlement agreement, engaging in unilateral communications with a financial entity in demanding an excessive distribution from the plaintiff's IRA, and misappropriating retirement assets that were supposed to be equitably distributed to the plaintiff. The defendant's conduct forced the plaintiff to file a motion to enforce litigant's rights and incur substantial counsel fees.

5. E.D.L.R. v. R.R.V.-R. - this case appealed a domestic violence restraining order. The arguments during the final restraining order (FRO) hearing centered on whether the defendant's actions constituted harassment as a predicate act under the PDVA, and if the circumstances warranted the issuance of an FRO for the plaintiff's protection. The trial court initially found the defendant committed the predicate act of harassment based on repeated calls intended to harass the plaintiff, but on remand was directed by the court to further analyze the necessity of an FRO for the plaintiff's protection. The trial court considered the statutory factors and concluded that the plaintiff's need for protection and the immediate danger she faced from ongoing, escalating threats justified the FRO. On appeal, the court affirmed the FRO, noting that it did not disturb the finding of the predicate act of harassment in the first appeal, and finding sufficient record evidence to support the trial court's conclusion that an FRO was appropriate and necessary.

6. Sackstein v. Kukis - in 2022, the defendant moved to modify a 2021 order and to establish child support. She asserted that even though the parties had equal parenting time, the plaintiff "traditionally earned over double what [she] earn[ed] annually." The motion judge concluded he could not order child support because there was no change in circumstances. The court reversed and remanded, finding that the motion judge misapprehended the law when he declined to adjudicate child support because there had been no change of circumstances since entry of the 2017 and 2018 orders. Those orders never established child support and a change in circumstances standard did not apply. The defendant never moved to modify child support, but rather to establish it. Additionally, the 2017 order erred in requiring the defendant to file a case information statement to obtain child support, and the 2018 order compounded that error.  The court ordered both parties to file a fully completed financial statement in support of summary actions.

7. Moore v. Terrell – the plaintiff appealed the denial of her motion for reimbursement of college tuition expenses, medical expenses, and health insurance coverage costs for the parties' daughter. The defendant moved to emancipate the child in 2023 and the plaintiff cross-moved for reimbursement for medical and college tuition expenses.  The plaintiff testified that her husband and her mother-in-law obtained Parent Plus Loans for the child's college tuition. The plaintiff acknowledged there was no written agreement for the payment of the loans, but asserted that the defendant had orally agreed to share in the repayment, and text messages evidenced the agreement.  The trial court emancipated the child, found there was no "consultation" between the parties about the child's college, and denied the plaintiff's college tuition and medical reimbursement requests based on laches. The plaintiff argued that the defendant clearly agreed to pay for their daughter's college expenses through text messages and acted in accordance with the agreement for four years while child was in college. The appellate court affirmed in part and vacated in part. The appellate court found that the trial court misapplied its discretion in not conducting a plenary hearing and remanded for a hearing to address what, if any, agreement the parties had regarding the college expenses.  The trial court did not misapply its discretion as to laches for medical expenses predating child's entrance into college.

8. L. v. K.B. – the defendant appealed from the entry of a final restraining order in favor of the plaintiff. The defendant initially filed a complaint after the plaintiff allegedly threw a rock through her window, and the plaintiff filed a cross-complaint accusing the defendant of making terroristic threats. The trial court consolidated these complaints but handled them separately, leading to procedural complications. The trial court failed to explore the defendant's allegations of past acts of domestic violence by the plaintiff, which included an incident in which the plaintiff stabbed the defendant in the neck and pled guilty to assault. Instead, the trial court adjourned the trial on the defendant's complaint and proceeded with a hearing on the plaintiff's complaint. The trial court issued an FRO in favor of the plaintiff based on his testimony about a specific incident involving terroristic threats from the defendant, despite inconsistencies in his account and a lack of comprehensive evaluation of the evidence and past incidents. On appeal, the court vacated the FRO, finding the trial court failed to make specific credibility assessments and failed to consider the full context of the parties' history. The appellate court's decision highlighted the trial court's failure to follow standard procedures for amending complaints and its inadequate consideration of whether an FRO was necessary to protect against immediate danger or further abuse, as required under the Silver analysis. The appellate court remanded for a new trial with a different judge, emphasizing the need for a thorough and fair evaluation of all relevant factors and history between the parties.

9. In the Matter of N.C.S. – the plaintiff appealed a trial court decision denying her motion to hyphenate the parties' child's surname to add hers, following her separation from the child's father. The parties dated, cohabited, and had child but never married. They initially agreed on the child's name at birth in 2019, which the plaintiff later sought to change post-separation by switching the child's first and middle names and including a hyphen with her surname to the child's last name. The trial court found all witnesses' testimonies credible but was particularly persuaded by the grandfather's testimony regarding familial continuity in naming. The court applied the "best-interest-of-the-child" standard, acknowledging the agreed-upon name at birth and finding no compelling reason for a change. It noted the lack of evidence suggesting a name change would better serve the child's interests. On appeal the court affirmed. The court agreed with the trial court that the best interests standard and the record evidence presented during the hearing supported maintaining the originally agreed-upon surname.

10. DCP&P v. E.M. – the defendant appealed the finding that he abused or neglected his ten-month-old daughter. The mother and child lived in a babysitter's home. The mother left the child in the babysitter's care and went to work. The father arrived at night to watch the child and had lain on the bed where child was and fell asleep. The father woke the babysitter as he was leaving for work and stated that the child had been restless and crying all night.  The babysitter noticed the child was whining and did not use her left arm as usual.  The mother returned from work and noticed the child's left arm was hanging down oddly and seemed painful, and the child had scrapes on her chest and a bruise on her forehead. The child was diagnosed with a broken arm. The father admitted he might have rolled over onto the child in his sleep. The DCP&P substantiated the father and sitter for physical abuse and inadequate supervision. The trial court found the father had abused or neglected the child.  The father argued that his conduct was not grossly negligent and the trial court impermissibly turned Title 9 into a strict liability statute. The appellate court reversed, finding that the trial court's conclusion resulted from the mistaken application of what is meant by "other than accidental means."  The trial court misquoted the holding in S. v. N.J. Div of Youth & Fam. Servs., 157 N.J. 161 and did not analyze whether the father "[could] or should [have] foresee[n] that his conduct [was] likely to result in injury as a matter of law." Also, there was no evidence to support the Law Guardian's assertion that co-sleeping with an infant was gross negligence.

11. Roblejo v. Roblejo – the plaintiff appealed the denial of modification of the parties' parenting schedule. The parties married in 2016, had one child, and divorced in 2019. Their marital settlement agreement was incorporated into their final judgment of divorce. The plaintiff was primarily responsible for her two adult children from a prior marriage, who were diagnosed with autism and had significant needs. The parties retained a joint expert to perform a best interest evaluation during the divorce and incorporated his recommendations into the Marital Settlement Agreement (MSA).  The MSA provided the parties with joint legal custody of the child and a shared custodial arrangement that gave the defendant two additional overnights in a two-week period. After the divorce, the plaintiff's two older children were placed in residential programs.  The plaintiff filed to increase her parenting time, arguing the out-of-home placements of her adult children amounted to a substantial change in circumstances.  The defendant opposed the motion and sought to relocate with the child to Delaware.  The motion judge found that even if a change in circumstances had occurred, the plaintiff's application was devoid of any evidence that a modification of the parenting schedule was in the child's best interests. The defendant withdrew his relocation request. The court affirmed, and found no error in the motion judge's determination that the plaintiff had failed to demonstrate a prima facie showing of changed circumstances affecting the best interests of the parties' child. The plaintiff offered no evidence demonstrating how the older adult brothers leaving the home impacted the parties' son.

12. A.U.B. v. E.L. – the defendant appealed the judgment of divorce awarding the plaintiff (former husband) sole legal and physical custody of the parties' child and prohibiting the maternal grandparents from having contact with the child. The trial judge found the defendant and her parents attempted to alienate the child from the plaintiff, made decisions that were not in the child's best interests, and orchestrated a false weapons charge against the plaintiff. The defendant sought a temporary restraining order (TRO) against the plaintiff, asserting he had sexually, physically, and emotionally abused her. The trial judge awarded the defendant an FRO.  The plaintiff pled guilty to fourth-degree criminal coercion and was sentenced to probation. The parties counterclaimed for divorce.  The plaintiff sought sole custody. He contended the defendant had filed 11 false Division of Child Protection & Permanency complaints against him, and he introduced recorded Zoom calls with the child to demonstrate his claim of parental alienation.  The person who supervised the plaintiff's visits with the child found a recording device sewn into the child's pocket.  The psychologist testified that the defendant had PTSD, a tendency to "overreact," had pressured her therapists to call DCP&P about unsupported allegations, and was "virtually incapable" of viewing any interaction between the plaintiff and the child as safe or positive. He interviewed the child, who gave lengthy, robotic monologues about the litigation, which "appeared to have been coached" and echoed the defendant's own complaints.  The trial judge found the defendant and her family had alienated the child from the plaintiff, concluded the factors weighed in the plaintiff's favor, and awarded him sole legal and physical custody.  The appellate court found the record supported the trial judge's findings and conclusions. However, the appellate court ordered an amended JOD to place the obligation on the defendant to restrict the maternal grandparents from having access to the child because the maternal grandparents were not parties to the action.

13. O. v. M.O. – the plaintiff appealed the award of counsel fees to the defendant as a frivolous litigation sanction. The parties had a brief romantic relationship. After it ended, the defendant obtained a TRO against the plaintiff. The domestic violence complaint was dismissed, and the TRO was vacated with the consent of both parties. Nine months later, the plaintiff sued the defendant, alleging defamation, intentional infliction of emotional distress, and other claims stemming from the sexual assault and harassment allegations in the dismissed domestic violence complaint. The defendant's attorney served a safe harbor notice and moved to dismiss the complaint for failure to state a claim. The plaintiff's motion in opposition included nude photographs of the defendant. The trial court entered a sua sponte order striking the plaintiff's submissions from eCourts. The plaintiff's appeals were rejected and the plaintiff then filed the photos under seal. The trial judge found the litigation privilege applied to statements the defendant made about the plaintiff in the context of the domestic violence proceeding and dismissed the complaint. The trial court granted partial counsel fees as a frivolous litigation sanction. The appellate court found no abuse of discretion in the trial judge's decision to award partial attorney fees. The trial judge determined the plaintiff's insistence on including sexually explicit photographs of the defendant publicly on eCourts was frivolous and necessitated the defendant's defending the removal of the photos. The trial judge confined the award to the defendant's counsel's representation in the respective interlocutory appeals of that issue.

 

Diana N. Fredericks, Esq., devotes her practice solely to family law matters.  She is a Certified Matrimonial Law Attorney and was named to the NJ Super Lawyers Rising Stars list in the practice of family law by Thomson Reuters from 2015 through 2022, to the NJ Super Lawyers list in 2023 and 2024, and to the New Leaders of the Bar list by the New Jersey Law Journal in 2015.  Contact Ms. Fredericks for a consultation at 908-735-5161 or via email.

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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.