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S.B. v. K.C.: Custody Arrangements that Give Rise to Continuing Risks for Domestic Violence

On October 12, 2018, the Appellate Division handed down an unpublished decision in S.B. v. K.C., a case in which Essex County Superior Court dismissed an application for a domestic violence temporary restraining order and denied a final restraining order. 

Plaintiff and Defendant were never married but had one child together, born in August 2007.  The parties lived together for a few months following their child’s birth, until Defendant became incarcerated. 

Plaintiff filed her first domestic violence complaint on June 18, 2012.  She alleged that Defendant had hit her during their child’s preschool graduation and threatened to kill her, and also kicked Plaintiff’s car while she was sitting in it.  Plaintiff also laid out a history of previously unreported domestic violence incidents spanning as early as when their child was 3 weeks old.  A trial court judge granted Plaintiff’s request for a temporary restraining order (TRO) pursuant to the Prevention of Domestic Violence Act (PDVA)(N.J.S.A. 2C:25-17 to -35). 

Defendant was not served with the TRO until he appeared for a visitation hearing before a second trial court judge nearly 5 years later, on February 17, 2017.  At that time, the second trial court judge continued the restraints from the original TRO and scheduled a trial date for a Final Restraining Order (FRO) hearing. 

On March 2, 2017, Plaintiff amended her complaint to add more incidents that had occurred since the entry of the initial TRO.  The second trial judge granted Plaintiff’s amended TRO and scheduled an FRO hearing for March 16, 2017 before a third trial judge. 

A trial court must analyze a case brought under the PDVA by applying the two-prong test in Silver v. Silver, 387 N.J. Super 112, 126 (App. Div. 2006).  The first prong requires the court to determine whether or not a predicate act (as defined by the PDVA) was committed, and the second prong requires the court to determine whether a final restraining order is necessary to prevent the defendant from causing harm to the plaintiff in the future. 

At the March 16, 2017 hearing, Plaintiff appeared with counsel, while Defendant failed to appear at all.  Plaintiff gave testimony.  The court issued an FRO by default on the grounds that Defendant had committed the predicate acts of assault and harassment and that Plaintiff was afraid of Defendant. 

However, the next day (March 17, 2017) the Defendant appeared in court and filed a motion for reconsideration before the second trial judge, claiming that he (the Defendant) had made a mistake with respect to the FRO hearing date.  When the second judge heard the motion for reconsideration, both parties appeared (Plaintiff had counsel) and both parties testified.  Neither presented witnesses or documentary evidence.  The judge ultimately found that Plaintiff failed to corroborate most of the allegations made in her amended TRO but that she did prove that Defendant committed three predicate acts on two separate occasions.  Even though the judge recognized that Defendant committed predicate acts, the trial judge commented that the incidents were three years apart, and he saw no immediate danger to Plaintiff and therefore, there was no need to enter an FRO to prevent future harm. 

Plaintiff appealed.  Defendant failed to file any responsive pleadings.  The Appellate Division found that the trial court had “failed to give sufficient measured consideration to the ongoing visitation issues concerning [the parties’ child] which will continue to bring the parties into contact and almost inevitably be a source of conflict.” The Appellate Division noted that Defendant’s commission of two separate predicate acts were likely to be repeated in the future because of the ongoing issues, and that the trial judge was mistaken in finding that Plaintiff failed to establish the second prong of the Silver analysis.  The Appellate Division reversed the trial judge’s decision, remanded the matter back to the trial court, and directed the trial court to enter an FRO, including parenting time provisions if necessary. 

Sahai v. Sahai: A Noncompliant Party Cannot Withhold Financial Information from the Court then Claim an Inability to Pay Sanctions and Attorney’s Fees

On October 2, 2018, the Appellate Division handed down an unpublished decision in Rooney Sahai v. Susan Sahai, a post-judgment matrimonial matter on appeal from Bergen County. 

The parties divorced in 2012 after 26 years of marriage.  Their Property Settlement Agreement (PSA) provided for no parenting time between Susan and the parties’ severely disabled adult daughter, even though both parties cared for the child from the time of her birth through the entry of their divorce.  In July 2014, Susan filed a motion to vacate the PSA on the grounds that Rooney coerced her into signing it.  The court scheduled a plenary hearing shortly thereafter. 

Over the 4 ½ years that followed Susan’s motion; Rooney engaged in what the Appellate Division labeled as “obstructionist litigation.”  Rooney failed to comply with 3 separate court orders (including a consent order), entered over the course of 9 months, for Susan to have visitation with the parties’ daughter.  Rooney initiated a criminal complaint against Susan with the Bergen County Prosecutor’s office (which was administratively dismissed).  He also filed civil suits against Susan’s attorney in Superior Court and Federal Court (both of which were also dismissed).  During all of this chaos, the trial court imposed $20,000 in sanctions against Rooney for his non-compliance with court orders as well as ordering him to pay over $10,000 in attorney’s fees.   

Rooney filed 2 appeals relative to the sanctions and attorney’s fees.  Prior to the Appellate Division reviewing the matter, Susan’s attorney informed the court that the plenary hearing was still pending, as the trial court was now awaiting the Appellate Division’s decision. 

On appeal, the court noted that Rooney had failed to comply with the financial discovery that was required of him at the trial level.  For that reason, he could not now come before the Court and claim an inability to pay.  The Appellate Court also supported the trial court’s statements that it did not find Rooney’s testimony about his financial circumstances to be credible, and that it was able to make a “reasonable inference” that he was either attempting to hide money or attempting to mislead the court.  The Appellate Court ultimately affirmed the trial court’s award of counsel fees and imposition of sanctions. 

Terminating child support for children with special needs

On October 3, 2018, the New Jersey Appellate Courts rendered an unreported decision on a case about emancipating a child with disabilities.  (S.E. v. B.S.B. (A-0485-17T2)) 

According to New Jersey statutory law, a parent’s continuing obligation to provide child support presumptively ends when the child turns 19 years old, unless a different date is ordered by the Court.  However, even if a different date is ordered, the support cannot continue beyond the child’s 23rd birthday (except under exceptional circumstances). 

In S.E. v. B.S.B., the child receiving support was 23 years old, born with cerebral palsy, and diagnosed Attention Deficit/Hyperactivity Disorder (ADHD).  The child’s mother filed a motion with the trial court for an order compelling the child’s father to continue providing support even though the child had reached the statutory maximum age.  The child had graduated high school, was working towards earning an Associate’s Degree, and had applied to numerous jobs (without success).  The child’s mother advised the Court that she had obtained social security disability benefits for the child and that he was also utilizing services available through social service agencies.  The Court noted that the child’s father’s testimony was limited, because he basically never had any meaningful contact with his child. 

The trial Court terminated the father’s child support obligation.  The trial court opined that the mother did not provide any current medical evidence that indicated that the child’s cerebral palsy was so severe that the child required a parent to provide financial support beyond the age of 23.  The trial court also remarked that the child was able to attend physical therapy on his own, was able to work, and could be self-sufficient. 

The child’s mother appealed.  The Appellate Court agreed with the Trial Court’s findings, summarizing their thoughts by citing 2 governing statutes (N.J.S.A. 2A:17-56.67(e), and N.J.S.A. 2A:34-23(a)).  The Appellate Court stated that when the 2 statutes are read together, they mean that “if an adult child suffers from a disability but is self-sufficient, he is generally considered emancipated beyond the sphere of a parent’s legal, if not moral, obligation.” (citing Kruvant v. Kruvant, 100 N.J. SUPER. 107, 119 (App. Div. 1968).  The Appellate Court commented that the record showed that the child was independent in most of his daily living activities.  The Appellate Court summed up its decision by stating that the mother in this case bore the burden of rebutting the presumption of her child’s emancipation as a matter of law, and that even though her concerns for her child’s future well-being and financial security were genuine, she had not overcome the presumptive emancipation in accordance with the 2 governing statutes. 

M.B. v. D.B.: Social Security Disability Benefits and Child Support

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.