Special needs children

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On October 2, 2018, the Appellate Division handed down an unpublished decision in Rooney Sahai v. Susan Sahai, a post-judgment matrimonial matter on appeal from Bergen County.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 23^rd 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.

The Little White Christmas Tree

Biggest brother putting ornaments on the tree at age 5.

The last time I packed our Christmas tree into the box I didn’t know it was the last time. We split in June that year. I picked out some ornaments when we separated our things, but for the most part, I said goodbye to the shiny little trinkets I had picked out for our family.

That was a few years ago. The first Christmas after that was pretty brutal. I didn’t even take out the ornaments I had brought with me. I made a fun arts and crafts type of tree for our then 2 year olds to play with, and when they went to her house to celebrate I turned to Lifetime movies and pie. It was pretty cliche.

The next year I had a tiny 2 foot tree I bought on a whim at Target. The kids had a blast making tiny ornaments and I didn’t worry about them knocking anything down too much. I had a less sad Christmas that year. It’s amazing what effect those colorful little lights have on a room.

Fast forward a bit and the scene unfolds in a way I never expected.

Youngest brother putting ornaments on the same tree at age 5.

This year my ex, her spouse, and I, along with our kids, pulled out that same old tree. We put on ornaments from all over the place. We redefined our traditions in our own unique way. We successfully blended what we had once worked so tediously to separate.

An ornament broke. The kids stayed up too late. We made a huge mess.

It was pretty perfect.

Day 12…

Today is day 12 of entirely solo parenting.

Today I am so thankful for my coparents.

When we first split, I took the kids and moved. I moved far enough away to not bump into each other in the grocery store. To not worry about who hears and says and sees what. I moved far enough away to give myself the time and space I needed to be mad and hurt and to process in my own way.

About a year later I moved back closer. I had had my space. I had felt my feelings. I had healed some of what needed to be healed. And I was SO sick of traffic during visits.

Another two years after that we moved even closer together. My coparent and I, along with the new spouse had worked together to get things where and how they needed to be for the kids. And quite frankly, for ourselves.

We stopped calling each other exes and started calling each other coparents. We stopped worrying about parenting time lost and started focusing on how to better spend our time now. And now we truly are a team. A team that works so well, that we don’t even realize it sometimes.

So now that they have been away for TWELVE days, I can confidently say that as much as I am a single parent, I am also NOT a single parent. Nor do I wish to be. My kids do better when they have all of us. We do better when we have all of us. And while everyone survived this adventure, and even had fun, I’m happy that the other two-thirds of my team will be home tonight.

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.