Family Law News – Post Judgment Updates
Sep 23, 2024 | Written by: | Share
In a recent matter that took place in Hunterdon County, NJ, the ex-wife appealed a trial court order granting her ex-husband’s motion to terminate alimony. The Appellate Division upheld the lower court’s decision.
This case is noteworthy because it discusses a) the standard of review for an appeal; b) whether the judge abused his discretion in finding that the defendant ex-husband has established a change of circumstances based on his good faith retirement; and c) both parties argued that the court erred in not awarding them counsel fees. Moreover, in this case, the court did NOT find that a plenary hearing (trial) was necessary to reach a conclusion, finding that there were material facts in dispute such that the trial court could decide the issues based on the information provided in the motions. That is somewhat unusual, as typically, any time there is a genuine or material issue of fact in dispute, a hearing is required. Therefore, this case supports that simply because a litigant makes that claim (that there is a dispute) does not mean a hearing must ensue, and the Appellate Division supported that trial court determination in this instance.
This case is noteworthy given the parties’ unusual terms in their Marital Settlement Agreement (MSA), wherein they agreed that there would be a one-time waiver of the obligation to establish a substantial change in circumstances to modify the custody and parenting time schedule for their children. The Appellate Division enforced the terms of the parties’ agreement, finding that they are able to control their destiny in this regard and disagreed with the trial court judge who said otherwise.
The agreement provided, in pertinent part: “After a six-month period following the execution of this Agreement, the parties shall review the custody/parenting time schedule to determine a schedule that is in the best interests of the children at this time. The parties shall attend at least one session with the Parenting Coordinator to mediate an appropriate parenting schedule with the costs of same to be shared as set forth above. In the event that mediation is unsuccessful, or one party fails to cooperate in attending the mediation session, either party shall have a right to file an application with the [c]ourt to modify the Custody/Parenting time schedule set forth herein without the necessity of demonstrating a substantial change in circumstances. Each party further reserves the right to obtain a best interests forensic custody evaluation at that time at his or her own cost.”
After mediation was unsuccessful, the father applied to the court to have a plenary hearing and to establish custody and parenting time. The mother objected and asked the court to enforce the equal custody arrangement set forth in the MSA. The court denied the father’s motion and granted the mother’s. The Appellate Division disagreed.
"[S]ettlements – the parties' choice of the least unfavorable alternatives – occur for many reasons other than certainty of result. Settlements are made to obviate the pressures of litigation, to avoid the expense of counsel fees, and to avoid the cost and delay of appeals. N.H., 418 N.J. Super. at 280. In a clear attempt to "obviate the pressures of litigation" and "to avoid the expense of counsel fees," the parties chose a six-month review period instead of proceeding immediately to a trial to resolve their disputes concerning custody and parenting time. We know that from the unambiguous language of their MSA.
The Family Part judge declined to enforce this specific provision of the MSA, believing, despite its clear language, plaintiff had to establish a change in circumstances pursuant to the "procedural framework" outlined in Lepis, 83 N.J. at 157-59. In so holding, the judge failed to appreciate the temporary nature of the parties' initial six-month custody and parenting-time arrangement and the reasonableness of their mutual decision to attempt to resolve their initial custody and parenting-time disputes by first participating in a six-month review and mediation before proceeding to a best-interests evaluation and trial. For these reasons, we reverse paragraph two of the order, in which the judge denied the aspect of plaintiff's motion seeking a plenary hearing regarding his requests to modify custody and parenting time without first demonstrating a substantial change in circumstances.”
In this dispute, the parties could not agree how to interpret the terms of their MSA as to the distribution of a pension. The Court appointed an expert to define the type of pension the husband possessed and recommend whether it should be divided by way of shared or separate interest. After the expert issued a report, the court issued an order directing that the plan be distributed with the wife receiving a separate interest. The husband appealed, indicating that the court improperly relied upon the expert report without discovery and a hearing. The Appellate Division agreed with the husband and reversed and remanded. The Appellate Division agreed with the husband that the trial court erred in issuing its own expert report and then adopting it, without giving the plaintiff an opportunity to conduct discovery and submit his own expert. The Court Rules are clear and provide that the court shall permit the parties a reasonable opportunity to conduct discovery as to the court’s expert, including opportunity to take the expert’s deposition.
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 2021, 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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