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On September 20, 2018, the Appellate Division handed down an unpublished opinion on C.C.E v. C.R.E., a case about a Final Restraining Order (FRO) granted under the Prevention of Domestic Violence Act.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

 

 

 

 

Can I Appeal the Judge’s Child Custody Decision?

New Jersey law gives judges a great deal of discretion in family law matters, including decisions related to child custody. In some cases, a judge’s custody and parenting time decision may be very easy to understand, but in other cases, a decision may seem biased or unfair to one or both parents. In that case, you do have recourse; when you receive a court decision that you disagree with, you do have the right to challenge the judge’s decision through the appeals process.

An appeal asks a court consisting of two or three appellate judges to review the trial judge’s child custody decision. The appellate court can affirm the trial court’s decision, which means that the appellate court agrees with the trial court’s decision and determines that it should remain in place. Alternatively, the appellate court has the authority to completely overturn a trial judge’s decision and issue its own decision on the matter, but this is a relatively rare occurrence. More commonly, however, if the appellate court disagrees with the trial court decision, it will remand, or send back, the decision to the trial court judge, along with instructions stating what the trial court did wrong in making its decision. In this case, the trial court judge is supposed to review the case again and issue a new decision according to the instructions given by the appellate court.

Appeals in the state of New Jersey, as is the case in many states, tend to be very long and expensive battles. You can expect that appeals (unless emergent) will last a year or more, and, in the meantime, the trial court’s Order on child custody will be in place (unless the Court determines to “stay” or hold the Order pending the appeal). That Order will remain in effect, unless the appellate court decides to overturn the trial court decision for some reason.

As a practical matter, very few child custody cases are appropriate for an appeal. The vast majority of family law decisions from trial courts are affirmed by the appellate court. Plus, in the small number of cases in which the appellate court overturns a decision, or determines that the decision is erroneous in some manner, the result may not be in your favor. Therefore, a decision to appeal of a child custody decision should be very carefully considered.

The attorneys of Argentino Family Law & Child Advocacy, LLC , know how stressful, emotional, and complex legal proceedings can be, particularly when they involve custody or other matters related to your children. If you are looking for help with a legal matter involving families or children, you need the advice and guidance of one of our attorneys. Contact our office today to set up a meeting with an experienced lawyer at Argentino Family Law & Child Advocacy, LLC, and learn how we can help you with your legal case.