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On October 2, 2018, the Appellate Division handed down an unpublished decision in Rooney Sahai v. Susan Sahai, a post-judgment matrimonial matter on appeal from Bergen County.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

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. 

J.G. v. J.H.: A Not-So-Surprising Tale of the Court’s Apathy Towards Non-Dissolution Cases

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.

C.C.E. v. C.R.E.: Beeps, Signs, and an “Unschooled Litigant” in a Domestic Violence Trial

On September 20, 2018, the Appellate Division handed down an unpublished opinion on C.C.E v. C.R.E., a case about a Final Restraining Order (FRO) granted under the Prevention of Domestic Violence Act.

The parties had been married for about 19 years when the wife a non-dissolution docket (often called the FD docket).  The wife’s application resulted in an order granting her exclusive possession of the parties’ marital residence, and, among other things, directing that the husband have no contact with the wife “whether oral, written, direct or indirect, via text, email or social media, except for text or email for the welfare of the children only.”

Thereafter, the husband regularly drove past the marital residence and beeped or waved.  In order to gather proof of the husband’s violation of the civil restraints, the wife put up signs on her mailbox referring to the husband as a stalker and mentioning his girlfriend by name.  The husband texted the wife about the signs, thereby proving that he had driven by the former marital residence and read them.

The husband filed a domestic violence complaint against the wife alleging that her posted signs constituted harassment.  The wife filed her own domestic violence complaint based upon harassment and stalking.  At the time of the hearing, the husband proceeded as a self-represented litigant, while the wife was represented by an attorney.  The trial court judge often reframed the questions that the husband was asking the wife during cross-examination (which the husband later used as part of the basis of his appeal).

The trial court ultimately granted the wife’s request for a final restraining order and denied the husband’s request.  The trial court found that the wife was credible and that the husband was not.  The trial court also concluded that the husband’s text messages were meant to cause annoyance or alarm to the wife, which is within the Domestic Violence Act’s statutory definition of harassment, and that the harassment rose above the “ordinary domestic contretemps” that are defined by domestic violence case law, which are often present in domestic violence litigation and do not, by themselves, justify the Court issuing an FRO.

On appeal, the husband argued several points, including that the trial court abused its discretion and violated his constitutional rights by denying him the right to directly cross-examine the wife.  The Court commented that when at least one party is unrepresented in an FRO hearing, a judge is not only permitted to do much of the examination; a judge is expected to do it.  The court reasoned that a judge needs to do much of the examination “in order to seek the truth that might not easily arrive when an unschooled litigant attempts to examine a witness.”  The Appellate Court further commented that refocusing the testimony the husband sought to elicit from the wife did not prejudice the husband’s prosecution of his case nor did they hamper his defense.  The Appellate Division affirmed all aspects of the trial court’s orders, except for the award of counsel fees, which was vacated and remanded for further consideration.

Exceptional circumstances lead to open durational alimony!

On August 31, 2018, the Appellate Division issued an unpublished decision in B.G. v. E.G.  This was a Union County case where after a 23 day trial, the court issued an 83 page letter opinion and Final Judgment of Divorce.  Defendant appealed from several portions of the Final Judgment of Divorce.  Plaintiff cross-appealed.

One of the most contested aspects of the case was the trial court’s decision to order open durational alimony following the parties’ 14 year marriage despite of the statutory alimony changes in 2017 wherein the standard for open durational alimony became 20+ years or “exceptional circumstances.”  In this case, the parties began dating in 1988, began living together between 1992 and 1994, had their first child in 1994, and got married in 2000.  The parties had three more children during the marriage.  Plaintiff filed her Complaint for Divorce on April 1, 2014.

At the time of trial, Plaintiff was a stay-at-home parent, as she had been for the duration of the marriage.  Defendant was unemployed but had a 5 year income average of approximately $132,000.  The parties and their four (4) children and lived a middle-class lifestyle.   Plaintiff sought open durational alimony.

The oldest child was emancipated by the time the trial concluded.  Defendant was designated as PPR (Parent of Primary Residence) of the second child and Plaintiff as PPR of the parties’ third and fourth child.  The court noted that the parties’ third child (who was 11 at the time of trial) had special needs.  The court recognized that the child is on the autism spectrum, has pervasive developmental delays and attends a special school.   The court further recognized that it was expected that this child would require continued care in the future beyond the age of 21.

While the parties had been married for 14 years, the court commented that they were a “monogamous couple” for 20 years.  The court also noted that the parties lived together in an “economically exclusive and supportive relationship” since 1992 and therefore the trial court did not rely solely on the date of marriage to determine the length of the married but considered the parties’ marriage to be “equivalent to a long-term marriage of over 20 years” and in light of this, the court awarded Plaintiff open durational alimony.

Defendant appealed several provisions of the Final Judgment of Divorce, including the portion regarding open durational alimony.  Defendant argued that N.J.S.A. 2A:34-23(c) limits the duration of alimony to the length of the marriage unless there are “exceptional circumstances”

While the Appellate Court did not agree that the prenuptial circumstances were independently the basis for “exceptional circumstances”, they found that there was other substantial credible evidence in the record to support a finding of “exceptional circumstances” that, when combined with the prenuptial circumstances, warranted open durational alimony for a marriage of 14 years.  The Appellate Court specifically outlined the fact that Plaintiff did not maintain career readiness as she was caring for the children and the parties’ home; highlighted the extensive responsibilities Plaintiff has had and will continue to have relative to being the primary caretaker for the parties’ child with special needs and reasoned how those responsibilities limit Plaintiff’s job availability.

The lesson to be learned from B.G. is that here is that “exceptional circumstances” may create an opportunity in the law that, at first glance, you might not have thought existed.