On October 5, 2018, the Appellate Division handed down an
unpublished decision in M.B. v. D.B., a case that was appealed from Mercer
County Superior Court, Family Division.
The parties signed a settlement agreement at the time of
their divorce in October 2010. The
parties agreed to share joint legal custody of their 11 year old and 13 year
old children, and that M.B. would be the parent of primary residence
(PPR). The parties also agreed that D.B.
would pay child support to M.B.
In July 2011, M.B. was checked into an alcohol and drug
abuse treatment center, and relinquished custody of the children to D.B. The Court terminated D.B.’s child support
obligation in September 2011. In
December 2011, the Court ordered M.B. to pay child support to D.B. (which she
did not start paying until June 2012).
In 2011, M.B. began receiving Social Security Disability (SSD) benefits
for herself and the children. M.B. also
received a lump sum payment for a period prior to the parties’ divorce. M.B. kept the SSD benefits paid to her for
the children’s benefit because she felt that “she was the one disabled and she
was paying child support.” M.B. also
testified that she had “absolutely no idea what [she] did with any money . . .
blew it.”
The SSD benefits that M.B. received were greater than the
amount of child support she was paying to D.B.
Basically, M.B. was making a net profit from the SSD payments that were
supposed to be for her children’s benefit.
After a 3 day trial in May 2016, the Court issue an Order
for M.B. to pay D.B. $74,584 for the SSD benefits she received for the children
but kept for herself . The Order also
allowed D.B. to deduct the money from his payments to M.B. for alimony due to
her over the subsequent 9 years.
M.B. appealed. The
Appellate Division noted that the trial court had carefully calculated the SSD
payments M.B. received during
1) The period prior to the parties’
divorce (D.B. was awarded all funds);
2) The period when M.B. still had
custody of the children (D.B. was awarded no funds);
3) The period when D.B. had custody
and M.B. paid no support (D.B. was awarded all funds); and
4) The period when D.B. had custody
and M.B paid support (D.B. was awarded the difference between what she paid and
the SSD benefits she kept).
The Appellate Court affirmed the
Trial Court’s decision, opining that that SSD benefits paid on behalf of
children belong to the children, and should be paid to the custodial parent,
and if a non-custodial parent’s child support obligation is greater than the
benefit paid, they need to make up the difference.
On October 5, 2018, the Appellate Division handed down a decision in W.A.D. v. R.M.C., a case that was appealed from Essex County Superior Court, Family Division.
Plaintiff and Defendant met in 2009 and shortly thereafter began an intimate relationship. By autumn of 2009, Defendant moved into Plaintiff’s single-family home in West Orange. In 2011, the parties’ relationship deteriorated because Defendant wanted to have children, but Plaintiff did not. Defendant moved out of Plaintiff’s home, but the parties remained in contact. Defendant became a licensed foster parent during that time.
On December 3, 2011, a child (G.M.) was born, and the Division of Child Protection and Permanency (DCP&P) contacted Defendant and advised her that the child could be placed with her immediately. That month, Plaintiff and Defendant picked up G.M. from the hospital together, and all three began living in Plaintiff’s home in West Orange. The parties agreed that the child would call Plaintiff “Mamma” and Defendant “Mommy.” Two years later, in 2013, the parties found out that G.M. had a brother who was also available for adoption. Defendant wanted to adopt G.M.’s brother; Plaintiff did not. The parties’ relationship once again deteriorated. Notwithstanding the parties’ failing relationship, they both agreed that they wanted to adopt G.M. However, given the fact they were a same-sex couple, they believed that the process would be delayed, and as such, they agreed that G.M.’s adoption would be in Defendant’s name ONLY, and that Plaintiff’s would go through the process at a later date. Defendant formally adopted G.M. on November 11, 2013 (while still residing in Plaintiff’s home).
In 2014, the parties ended their relationship. In June of 2014, Defendant began dating another individual (referred to by the initials C.M.C. in court documents), then moved out of Plaintiff’s residence and moved to Union County, into the C.M.C.’s residence. At that time, G.M. was a few months shy of his 3rd birthday.
In June 2015, Plaintiff filed an application in Essex County Superior Court seeking joint legal and physical custody of G.M., as well as seeking to have her name placed on G.M.’s birth certificate and to have G.M.’s last name hyphenated to reflect both parents’ surnames. The Court entered an Order scheduling a trial, temporarily granting Defendant sole legal and residential custody, appointing a Guardian ad Litem for G.M., and appointing an expert to determining whether there was a psychological bond between Plaintiff and G.M. Plaintiff soon thereafter amended her pleadings to seek an order designating her as G.M.’s parent of primary residence (PPR).
In July 2015 Defendant married C.M.C. In November 2015, Plaintiff filed a complaint for adoption of G.M. in Essex County. Coincidentally (or not) that same month, C.M.C. filed a complaint for adoption of G.M. in Union County. C.M.C.’s complaint for adoption was ultimately dismissed and she was ordered to pay Plaintiff $26,000 in counsel fees. The Court awarded the fees because (among other things) C.M.C. failed to advise Union County Court that the child she sought to adopt was the subject of custody litigation that had been pending in Essex County for several months.
The parties’ trial in Essex County commenced on May 10, 2016 and concluded on September 23, 2018. Judge Craig Harris presided over the trial and rendered an opinion on November 18, 2016. Judge Harris’ Order set forth that Plaintiff had met the criteria in V.C. v. M.J.B. to be deemed a psychological parent to G.M. (163 N.J. 223 (2000)). He also found that it was in G.M.’s best interests for Plaintiff to be designated as PPR. Plaintiff’s request to be placed on G.M.’s birth certificate, as well as her request to hyphenate G.M.’s last name to reflect both parties’ surnames were also granted.
Defendant filed a motion for reconsideration of the court’s November 18, 2016 Order. Her motion was denied. Thereafter, Defendant appealed the orders on several grounds, the most important of which were the contention that the court erred in finding that Plaintiff was a psychological parent to G.M., and that the Court erred in ordering joint legal custody with Plaintiff as the PPR.
The Appellate Court affirmed the trial judge’s findings and rulings. The Appellate Court echoed reiterated one of the tenets from V.C., which states that “the psychological parenting doctrine is based on the ‘recognition that children have a strong interest in maintaining the ties that connect them to adults who love and provide for them.’” The Court outright rejected Defendant’s arguments that proper weight was not afforded to her status as an adoptive parent. The Court stated that once an individual is deemed to be a psychological parent to a child, they stand “in parity with the legal parent” and that the standard deciding custody and visitation issues in that regard is “best interests of the child” in accordance with N.J.S.A. 9:2-4.
The Appellate Division also rejected the following several arguments Defendant made, which were nothing more than attacks on Plaintiff’s style of parenting (such as referring to Plaintiff as a babysitter, and a playful caretaker). The Appellate Division instead focused on the abundance of proof in the record that Defendant was a deeply uncooperative co-parent and did things such as:
Failing to provide Plaintiff with information regarding G.M.’s medical providers (on several occasions)
Unilaterally removing the child from his school district
Registering the child in a new school
Denying Plaintiff parenting time during the holiday
Refusing to allow the child to participate in activities with Plaintiff’s family
Disparaging Plaintiff on social media
Moving several times in a short time span (contrasted with Plaintiff remaining at the same residence for 15 years)
The Appellate Division recounted expert witness testimony that stated that the degree of vitriol coming from Defendant was affecting G.M. and” had the potential to cause him to sustain significant and lasting harm.”
The trial court’s admonishment of Defendant’s refusal to co-parent, as well as the Appellate Division’s affirmation of the trial court’s decision should serve as a warning to parents in ugly custody battles; acting as a child’s only parent, and making unilateral decisions with respect to the health, education and general welfare of the child, can and will (and should!) backfire in a custody trial.
Most attorneys
who practice family law agree that the FD docket is the “Wild West” of the Court;
as it is a place where things like Rules of Court, deadlines, and civil
procedure are regularly ignored by litigants, court staff, adversaries, and
judges. The regularly-occurring
debauchery that takes place in the FD division often goes unchecked, as the
litigants tend to have less resources than the litigants moving through the FM docket,
and as such, do not have the funds to attempt to take corrective actions such
as filing motions for reconsideration or appeals.
However, the Appellate Division recently reversed and remanded a trial court judge’s decision in an FD case which the judge transferred custody and set a parenting time schedule after mishandling the case in at least five major ways. First, the Plaintiff’s attorney requested that, due to the gravity of the requested relief (a change in custody) that the matter be placed on a complex discovery schedule. The judge rebuffed the attorney’s request by stating that “it’s an FD matter . . . . it’s not a divorce.” The judge steadfastly held onto his completely baseless reasoning for denying discovery even when the attorney cited a Court Rule to support the request. Second, the attorney attempted to speak on behalf of their client later in the proceedings, the judge silenced the attorney by stating “I’m asking [Plaintiff,] not you.” Third, the judge did not allow the parties to cross-examine each other, even though they made wildly conflicting accusations about each other in their written submissions. Fourth, the judge did not give the litigants the opportunity to call any witnesses, including Plaintiff’s mother, who had regularly provided childcare and who the parties sharply disagreed on her continued ability to do so. Fifth, the judge failed to make fact-findings and failed to make his decision based upon the custody factors outlined in N.J.S.A. 9:2-4(c).
The judge simply stated “here is what I am going to do…” before entering an order wherein he changed custody of the parties’ 4 year old child and set a parenting time schedule that he made up on his own. The judge made no attempt to outline the statutory factors or explain his reasoning for the drastic change he was effectuating. In addition to the five egregious mistakes, the Appellate Division remarked that the judge made several other mistakes, including not requiring the parties to attend mediation as per Court Rule, not requiring the parties to submit proposed parenting time plans as per Court Rule, and not holding a plenary hearing (which surely would have alleviated several of the larger issues that ultimately resulted in the judge’s inept decision.)
The Appellate
Division found the trial court judge’s actions and decision to be so wrong that
they reversed the judge’s order remanded the case back to the trial court with
instruction to assign the case to a different judge.
Imagine that it’s been a rough few months (or longer!) for you and your spouse. You’ve stopped sharing the marital bedroom. One of you filed a Complaint for Divorce. The two of you begin discussing issues such as alimony, as well as dividing assets and debts. Now imagine a few more months have passed, and you and your spouse have talked things through and decided that both of you wish to continue in the marriage. What now? Perhaps you want to set some boundaries with respect to alimony and dividing assets and debts while you and your spouse start with a proverbial clean slate.
A Reconciliation Agreement is an excellent way for couples who have fought back from the brink of divorce to lay out all their economic plans in the event that they get divorced in the future. Although Courts have NOT enforced “mid-marriage agreements” (agreements to separate at a point certain, or the prepare for imminent divorce); Courts have differentiated reconciliation agreements and found them to be enforceable because they are in accord with public policy of preserving marriages.
The cornerstone New Jersey case in this regard is Pacelli v. Pacelli 319 N.J.Super. 185 (App. Div. 1999). In Pacelli, there was no divorce action pending and no warning prior to the husband informing the wife that he would immediately divorce her unless she agreed to certain economic terms and conditions relative to a future divorce. Both parties retained attorneys. The husband’s attorney sent the wife’s attorney an agreement which he said was non-negotiable. The wife’s attorney advised her NOT to sign the agreement, and that she would be entitled to a much greater amount of alimony and share of the marital assets than what was contained in the agreement. Against her attorney’s advice, the wife signed the agreement anyway, and vehemently opined that she wanted to preserve her marriage and that she did not want her children to grow up in a broken family.
Eight years later, the wife filed for divorce. The husband attempted to enforce the agreement, but the trial court refused. In affirming the trial court’s decision, the Appellate Division remarked how the marriage had not lost all of its vitality when the agreement was executed, and it also emphasized its disdain at the “inherently coercive” nature of the “ultimatum” that the husband foisted upon the wife.
The Pacelli decision outlined seven considerations in evaluating whether a Reconciliation Agreement is enforceable:
If the promise to resume marital relations was made when the marital rift was substantial.
If the agreement was oral and enforcement is sought of a promise to convey real estate, there must also be compliance with the statute of frauds.
The court may have to resolve disputes over the terms of the agreement.
The court must consider whether the circumstances under which the agreement was entered into were fair to the party charged.
The terms of the agreement must have been conscionable when the agreement was made.
The party seeking enforcement must have acted in good faith.
Changed circumstances must not have rendered literal enforcement inequitable.
The list of factors and the finer points of alimony and equitable distribution can be daunting; however, the attorneys at Argentino Family Law & Child Advocacy can (and have) handled Reconciliation Agreements (as well as countless other family law issues). Give us a call so that we can schedule a case assessment and give you more details about how a Reconciliation Agreement may work for you.
