Three Recent Updates in Family Law
Oct 7, 2022 | Written by: | Share
1. If I prevail in having a restraining order dismissed, am I entitled to counsel fees?
In the published decision of M.W. v. R.L., the court found that a defendant may be awarded counsel fees when the plaintiff files a domestic violence complaint in bad faith.
More recently, in the unpublished decision of K.J.H, v. T.T., Jr., the Appellate Division upheld an award of counsel fees in favor of the defendant and against the plaintiff. In pertinent part, the court held:
“Finally, we detect no abuse of discretion in the judge's award of attorneys' fees. The judge found "beyond a doubt that there was bad faith on the part of [plaintiff] in connection with this domestic violence action. The judge based his conclusion on Judge Edwards’s February 27, 2020, findings of fact, which established that plaintiff engaged in "intentional, comprehensive, and consistent alienation of the minor child from [defendant]," that plaintiff was fully aware of the adverse ruling against her in Georgia, and that plaintiff attempted to re-litigate those issues anyway. The judge also found that plaintiff misrepresented her situation to the Weehawken Police Department. Although it is unusual to award attorneys’ fees to a defendant in a domestic violence case, the judge did not abuse his discretion under these facts."
2. What is a Temporary or Final Extreme Risk Protective Order (TERPO or FERPO)?
In the recent unpublished decision of In the Matter of J.E., the court reviewed the entry of an ERPO, also known as the Extreme Risk Protective Order Act, which became law in 2018[i].
In that case, JE appealed from a FERPO entered against him, but his appeal was denied. JE had suicidal ideation and told a crisis worker he was going to kill himself and his dog. The police intervened and JE confirmed these statements to officers. JE’s wife expressed concern for herself and the neighbor with whom she was having an affair. A municipal judge found that JE posed an immediate threat and present danger to himself and others through the use of a firearm (he had a “significant amount of firearms and ammunition”). After a comprehensive trial, the court granted the FERPO and the Appellate Division upheld that finding.
The Act is intended to address the growing number of mass shootings by removing firearms from those who have shown “red flags” indicative of future violence.[ii] The Act is to permit family members and others to seek emergent orders to remove firearms from a person who poses a danger to self or others because of mental health crisis or instability.
The Act establishes eight (8) factors for the trial court to consider when deciding whether the issuance of a TERPO or FERPO is warranted. The court must determine if the person:
(1) has any history of threats or acts of violence . . . directed toward self or others;
(2) has any history of use, attempted use, or threatened use of physical force . . . against another person;
(3) is the subject of a temporary or final restraining order or has violated a temporary or final restraining order issued pursuant to the 'Prevention of Domestic Violence Act of 1991,' . . . ;
(4) is the subject of a temporary or final protective order or has violated a temporary or final protective order issued pursuant to the '[SASPA] of 2015,' . . . ;
(5) has any prior arrests, pending charges, or convictions for a violent indictable crime or disorderly persons offense, stalking offense pursuant to [N.J.S.A. 2C:12-10], or domestic violence offense enumerated in [N.J.S.A. 2C:25-19];
(6) has any prior arrests, pending charges, or convictions for any offense involving cruelty to animals or any history of acts involving cruelty to animals;
(7) has any history of drug or alcohol abuse and recovery from this abuse; or
(8) has recently acquired a firearm, ammunition, or other deadly weapon. [N.J.S.A. 2C:58-23(f).]
Additionally, the court should consider "any other relevant evidence" before issuing a FERPO. N.J.S.A. 2C:58-24.
Pursuant to Guideline 3(d) of Administrative Directive #19-19, at 5, the court must also consider three additional factors, including whether the individual "
(9) has recklessly used, displayed, or brandished a firearm;
(10) has an existing or previous extreme risk protective order issued against [them]; and
(11) has previously violated an extreme risk protective order issued against [them]."
Further, if the court finds one or more of the eleven "behavioral" factors above, Guideline 3(d) permits the court to evaluate four more factors regarding the individual's mental health. Ibid. These "mental health" factors include whether the individual:
(12) has any prior involuntary commitment in a hospital or treatment facility for persons with psychiatric disabilities;
(13) has received or is receiving mental health treatment;
(14) has complied or has failed to comply with any mental health treatment; and
(15) has received a diagnosis of a mental health disorder. [Ibid.] "
A finding of one or more of the factors may not be enough to support the issuance of a TERPO.
3. Is summary judgment ever granted in family law cases?
Yes. In the recent case of Lina Da Silva v. Amaro Da Silva, the trial court granted the husband’s application for summary judgment. The wife appealed same and was denied. This case is an important reminder of the necessity to plead the entirety of your case as part of your divorce and certainly before settlement or judgment is entered.
The pertinent facts are as follows. The parties were married in 2012 and divorced in 2017. The plaintiff's father, Luciano Sanchez, purchased a one-family home in Lyndhurst. Sanchez allowed the parties to rent the house from him. However, before they moved in, construction work was done on the house. The defendant, who is not a construction professional, undertook the work himself without the knowledge or consent of the plaintiff or her father.
According to the plaintiff, the defendant failed to secure the proper permits, used substandard materials, performed shoddy work, and consequently, caused substantial damage to the house. In an effort to remedy the situation, the plaintiff claimed she was immediately forced to spend her own money to repair the substandard work before the parties moved in. In January 2015, the parties moved into the house. In February 2016, the plaintiff filed a complaint for divorce in Bergen County, which contained a demand for equitable distribution of all assets and debts acquired during the marriage. Four months later, the defendant vacated the home.
On November 14, 2017, the judgment of divorce (JOD) was granted. A settlement agreement was incorporated into the JOD. The JOD provided "that all issues pleaded and not resolved in the judgment are deemed abandoned." During the pendency of the divorce action in April 2017, the defendant filed an action in the Law Division in Hudson County against Sanchez, seeking reimbursement for the value of the construction work done on the house, which he claimed to have supervised and paid for. Ultimately, after a four-day jury trial, the defendant prevailed in the action and obtained a judgment in the amount of $62,950.96, inclusive of interest and costs, against his former father-in-law— Sanchez—on February 6, 2019. The record shows Sanchez did not appeal the judgment.
On February 26, 2019, shortly after the Hudson County judgment was entered, the plaintiff filed a complaint in the Law Division in Bergen County against the defendant, seeking reimbursement of the monies she asserts were spent on the same construction project. On March 6, 2019, the defendant's counsel served a notice on the plaintiff's counsel advising that her lawsuit was frivolous pursuant to Rule 1:4-8 because the plaintiff does not own the subject property and lacks standing to file a complaint. The notice also stated the plaintiff was "barred" from seeking further damages "pursuant to the entire controversy doctrine recited in Rule 4:30A." The notice provided the plaintiff with a twenty-eight-day period of time to withdraw the complaint or potentially face sanctions under Rule 1:4-8. On October 14, 2020, the defendant filed a motion for summary judgment. The court heard oral argument on November 19, 2020, and entered an order granting the defendant summary judgment and dismissing the plaintiff's complaint. In a decision from the bench, the court found: "All the causes of action alleged by . . . plaintiff took place during the marital relationship."
The court concluded the plaintiff violated N.J.S.A. 2A:15-59.1 because her complaint "was commenced and continued in bad faith solely for the purpose of harassment." In addition, the court emphasized "there was never any proof" to support the causes of action alleged in the complaint. The court also determined the law firm representing the plaintiff violated Rule 1:4-8 because the complaint was filed to "cause unnecessary delay and to increase the cost of the litigation."
Rule 4:30A provides: "Non-joinder of claims required to be joined by the entire controversy doctrine shall result in the preclusion of the omitted claims to the extent required by the entire controversy doctrine. . . ." "The entire controversy doctrine requires that all claims between parties 'arising out of or relating to the same transactional circumstances . . . be joined in a single action.'"[iii] This "policy of mandatory joinder applies to family actions," and, more particularly, divorces. Indeed, our Supreme Court determined in Tevis v. Tevis, 79 N.J. 422 (1979), that "marital torts, as a class, are to be considered as related to, not 'independent' of, divorce suits" for the purposes of the doctrine. Ibid. (citation omitted). When torts occur during the pendency of the marriage, joinder is available.[iv]
[i] N.J.S.A. 2C:58-20 to -32
[ii] In re D.L.B., 468 Nj Super. 397 (App. Div. 2021).
[iii] Brennan v. Orban, 145 N.J. 282, 290 (1996) (quoting Brown v. Brown, 208 N.J. Super. 372, 377-78 (App. Div. 1986)).
[iv] Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 5:1-2 (1996).
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 in 2015, 2016, 2017, 2018, 2019, 2020 and 2021, 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.