New Jersey Lawyer & Attorney : Stark & Stark Law Firm : New Jersey Law Blog

In a recently decided unreported decision, the Appellate court held that while income imputed to a litigant for purposes of determining alimony should not be factored into the child support calculations.

In Weinbrecht v. Weinbrecht the Court affirmed the trial court's decision to continue to use imputed income for ex-Wife when assessing the ex-husband's alimony obligation but disagreed with doing so for child support stating that such calculations must be base on the actual income of the parties. In this case, the ex-Wife had increased her income above the level imputed to her. This case upholds the proposition that children of a divorce are entitled to benefit from the future economic successes of their parent.

In as much as this is an unreported decision litigants and attorneys will need to wait and see if this methodology remains valid.

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In Lewis v. Harris, Mercer County Assignment Judge, Linda A. Feinberg, ruled against a same sex couple's claims that they were denied equal protection by being unable to marry. An appeal of the ruling is now pending in the Appellate Division. The plaintiffs have made application to have the case certified to and accepted by the Supreme Court without argument in the appellate court. They argue that the issue is one of first impression and of considerable importance, and which will ultimately be decided by the Supreme Court. The argument that direct certification would allow the Supreme Court review "sooner rather than later" is not opposed by the state.

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New Jersey's recently enacted domestic Partnership Act provides that once persons register as domestic partners, the registration can only be vacated by an Superior Court action similar in nature to a divorce.

The Administrative Office of the Courts has released guidelines to the Courts for the termination of domestic partnerships.

Under the guidelines, a complaint must be filed with the Court, the complaint must set forth grounds for the termination similar to the grounds for divorce and the Court may, but is not required, to distribute the parties property as in a divorce.

The guidelines permit a domestic partner to seek an order of custody, parenting time or child support without having filed an action for termination of the partnership.

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This is a case which involves the distribution of marital property when one of the parties has filed for bankruptcy. In this matter, The United States Bankruptcy Court, District of New Jersey, held that under New Jersey state law, the right to equitable distribution does not arise until a final judgement of divorce is entered.

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The United States District Court for the District of New Jersey granted the defendant's motion for summary judgment in a case which evolved from an alleged breach of a commercial lease. The court held that Sharemax.com was not liable for the debts of its now-defunct parent under either the doctrine of successor liability or the doctrine of corporate alter ego.

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In this case, the Court stated that the proper standard of applying a general development plan is that survival of a portion of the plan is dependent on the survival of the whole plan.

This case arose out of Centex Homes abandonment of its approved plan to develop one of three tracts of land. In turn, the Township Committee of Mansfield Township terminated Centex's general development plan. The court has ruled that the township had good cause to terminate the plan because the developer had changed part of the approved plan by not developing all areas contained within the original plan.

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It is not often that Federal Court decisions impact upon state divorce or family law issues. However, two recent federal decisions to have family law repercussions----

Judicial Immunity
The Third Circuit Court of Appeals affirmed the Circuit Court's dismissal of federal statutory and constitutional claims by unsuccessful litigant in a state court paternity and custody action alleging federal statutory and constitutional violations.

The Court of Appeals held that the Federal Courts lacked jurisdiction to consider the claims against the Judge, and that the court appointed psychologist was entitled to absolute immunity.

This federal case is consistent with New Jersey state court holdings which grant Judges and court appointed experts judicial immunity for their recommendations and decisions. DTB vs. Advisory Committee on Professional Ethics, Thrd Cir, Opinion # 46-8-7788, filed 9/14/2004.

And---

Spoilation of Evidence
In a civil action a litigant destroyed e-mails. The other party requested a charge for an adverse inference instruction for the destruction and non production of the e-mails. The Court approved an instruction which punished the violator, deterred future misconduct and restored the other party to the position it would have been in had the evidence not been destroyed.

This case may be persuasive in those case in which matrimonial litigants destroy records. Mosaid Techs vs. Samsung Electronics, US Dist CT. Opin # 07-7-7779.

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The New Jersey Court of Appeals upheld the dismissal of plaintiff's claims of age discrimination and retaliation under the New Jersey Law Against Discrimination (NJLAD). The court found that the two individual defendants in this case were not involved in any allegedly adverse employment actions within the two-year statute of limitations. The "continuing violation doctrine" is an equitable exception to the NJLAD statute of limitations but, "by definition, [a continuing violation] is comprised of a pattern or series of acts connected for liability purposes by the fact that an act contributing to the claim occurred within the filing period" Shepherd v Hunterdon Development Center quoting National R.R. Passenger Corp. v. Morgan.

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The New Jersey Court of Appeals ruled that the City of Linden was required to pay just compensation to a property owner whose parking spaces were taken. Even though the use of the parking spaces required some access to and usage of a public right-of-way, the owner was entitled to a condemnation award.

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The United States Bankruptcy Court for the District of New Jersey has determined in a recent matter, In Re Richard D. Hawk, that Associations must file a stay relief motion in a Chapter 13 case in order to proceed in its collection efforts against a debtor owing sums to the association arising post-petition.

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For the second time in four years, the New Jersey Appellate Division has ruled that for the purpose of establishing an obligation to pay maintenance fees arising from a sheriff sale, it should be based upon the date that the sheriff's deed was executed and delivered to the successful bidder at the sheriff's sale.

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New Jersey statutes prohibit a separated or divorced parent from moving the children to another state (or country). There is no specific prohibition, however, from a parent moving with the children anywhere within the state. Thus, a person can not take the children from Lambertville, NJ across the river to New Hope, Penna. But, the same parent could take the children from Bergen County to Cape May. This issue has long been the subject of debate amongst divorce attorneys and Judges, and generally considered to be somewhat outdated and in need of revision.

Several years ago, Passaic, Family Court Judge Michael A. Diamond, wrote an extensive opinion prohibiting an in state move which would frustrate the other parents visitation of parenting rights. The opinion was well reasoned and generally accepted among practitioners, but was never published, and, therefore, had little precedential value. Last year Judge Fall writing for the Appellate Division in the case of Schulze v. Morris seemed to accept Judge Diamond's reasoning and opened the door for challenges to in state moves.

However, in a recent Middlesex County decision, Judge David A. Rosenberg, seemingly did not accept either Judge Diamond or Judge Fall's reasoning and permitted a divorced mother to move the children form Middlesex to Sussex County. The father who had to remain in Middlesex County argued that the drive time made visitation difficult if not impossible, that the school system in Middlesex was better and that the 11-year-old child wanted to remain in Middlesex County. Judge Rosenberg, nonetheless, permitted the mother to move to Sussex County with the child finding that the child was not, in his opinion, old enough to voice an opinion and that the drive was "manageable".

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Each party in a divorce is required to file a Case Information Statement (CIS). The CIS is the baseline financial document which breaks down each party's income, itemizes each party's expenses and sets forth a balance sheet of marital assets and liabilities.

By an amendment to the Court Rules, effective September 1, 2004, the New Jersey Supreme Court has revised the format of the Case Information Statement. Two of the most significant changes are:

1. Two Column Itemization of Expenses:

The first column requires an itemization of the marital expenses for the parties and their children, the "marital lifestyle".

The second column requires an itemization of the parties current expenses which are often, by necessity, reduced due to the separation or pending divorce.

This dual disclosure will enable the Judge to see a more complete and accurate picture of the parties actual lifestyle and expenses, and will protect the dependant spouse from having a support award made which reflects the reduced, current expenses rather than the actual lifestyle expenses.

2. More Complete Disclosure of Bonuses, Commissions and Non-cash Forms of Compensation:

The revised form has a full page of questions requiring written disclosure and explanation of any commissions, bonuses or non-cash forms of compensation such as stock or stock options.

The revisions also require the disclosure of any deferred compensation or compensation which has been earned but not yet received.

These disclosures should give the Judge a much more accurate and complete picture of a party's income.

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This matter was a hostile work environment and sexual harassment action which was brought under New Jersey Law Against Discrimination. The New Jersey Supreme Court's decision in this matter allows for plaintiff's to obtain compensation for mental anguish and embarrassment when there is an underlying actionable claim. Expert testimony, evidentiary threshold and liability issues in employment discrimination claims were all addressed by the Supreme Court in this decision.

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The New Jersey Supreme Court ruled that under the Condominium Act, N.J.S.A. 46:8B-1 a builder or developer cannot make a condominium association responsible for an individual association member's failure to pay assessments owed to an "umbrella" organization. In this matter, the "umbrella" organization was the plaintiff, Brandon Farms Property Owners Association which was made up of three separate classes of property owners in the Brandon Farms complex.

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The New Jersey Supreme Court decided that it is lawful to institute a Medicaid spend-down on behalf of an incompetent individual when certain criteria are met. Medicaid spend-down plans are permissible when the plan does not interrupt or diminish the care that an incompetent person receives, when that plan involves the transfer of that person's natural objects, when the plan is not contrary to any expressed prior interest or intent, and the plan is clear in providing for the best interest of the incompetent person and satisfies the law's goal of allowing decisions to be made on an incompetent person's behalf that the person would make if he or she were able to act.

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In this matter, the defendant homeowner's association was able to retain its authority to enforce their parking rules and regulations even though it had previously ceded the jurisdiction of its streets to the municipality.

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The New Jersey Court of Appeals found that in this matter a hearing that resulted in final site plan approval and variances, was not inadequate when compared to the amount of previous hearings held on the project. It was claimed that the hearing in question, which approved the variances, was inadequate. The court found that there was no error in granting bulk variances since the grant of the variances was grounded in the purposes of zoning, the benefits outweighed any detriments. The variances were also found to not be a substantial detriment to the good of the public and they would not substantially impair the intent and purpose of the zone plan and zoning ordinance.

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In an action under the Securities Act of 1933, United States Third Circuit Judge Rendell reversed the District Court's dismissal of plaintiff's claims that the company's registration statement and prospectus contained materially false and misleading statements regarding product distribution. The court held that reasonable minds could disagree as to whether the omitted fact that products were being sold by unauthorized retailers in a gray market was necessary to make the statements regarding the company's limited distribution not misleading. It was also held that the company's statements regarding its prompt delivery and retailers' inventory of its products are not materially misleading.

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The United States District Court for the District of New Jersey dismissed the complaints against the CEO, CFO, auditing firm, inside directors, outside directors, and underwriter defendants due to the lack of specific allegations that each had knowledge of the fraud which took place. The court held that even though several customers and employees had pleaded guilty to criminal informations charging securities fraud, and extensive documentary evidence of the fraud was produced by the plaintiffs, there was no information presented that showed any of the above executives had definitive knowledge of the fraud.

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The United States District Court for the District of New Jersey dismissed plaintiff's patent claim against the defendant. In the suit, the plaintiff claimed that the defendant failed to identify one of its employees as a co-inventor. Ultimately, the court ruled that the plaintiff failed to prove the employee's contribution with clear and convincing evidence.

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The government's power of eminent domain is being used to condemn private property for the construction of new schools in 31 "special needs" school districts known as "Abbott districts" as well as for a variety of redevelopment projects. When your rights to private property clash with the government's authority to act for the benefit of the public, ignorance of the law can be costly.

In 2002, New Jersey created the New Jersey School Construction Corporation ("SCC") who, along with the New Jersey Department of Education, is working with school districts to manage the construction of new schools. This is a project expected to cost approximately $6 billion. In order to build new schools, the SCC must acquire land by negotiating a voluntary purchase from property owners. If these negotiations fail, the SCC will file condemnation actions to force the taking of property. In most cases, a property owner will be unable to challenge the government's right to take the property since construction of a public school provides a valuable benefit to the public. However, a property owner does have the right to challenge and negotiate "just compensation" for the property and should consider retaining an experienced appraiser and attorney for assistance.

Prior to filing a lawsuit to take private property, the government must first try to purchase the property from the owner through bona fide negotiations. The government will retain an appraiser to determine the value of the property at its "highest and best use", and use the appraised value as its initial offer for the property. A prudent owner will seek the assistance of an attorney who will use an independent appraiser to evaluate the government's offer, and negotiate "just compensation" for the property. Recently I settled a case immediately before trial where the government's appraisal of my client's property was $100,000 and the property owner's appraisal was $5.2 million. Factors such as comparable sales, potential uses of the property, and market conditions must be addressed in order to make certain the property owner is paid the full value for their property.

Property value is not the only issue in some cases - environmental contamination situations may arise. Many Abbott districts are located in older industrial cities and school construction may require the acquisition of complexes with environmental problems. It is possible that environmental clean-up costs could be deducted from your compensation.

Redevelopment plans present a entirely different set of challenges to property owners because the line between private and public benefit is not always clear. A municipality may designate certain portions of the town as redevelopment zones and present plans that call for private property to be acquired. Some high profile redevelopment plans are located in Asbury Park and Camden. Outdated or deteriorating buildings are said to create a "blighting influence" on a neighborhood. Many redevelopment plans are now being challenged by property owners who disagree with the government's assessment of their neighborhood, and feel the primary beneficiaries of redevelopment plans are the new property owners. The procedure to challenge a redevelopment plan is beyond the scope of this article, but any property owner whose property is being considered for inclusion in a redevelopment plan should obtain a copy of the plan before its is adopted and consult with an attorney to discuss their available options.

Stark & Stark is a law firm with an experienced team of environmental, land use and condemnation litigators who can help property owners protect their rights.

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A reviewing court should allow site plan approval to stand where the Planning Board committed significant procedural and substantive errors in violation of the Municipal Land Use Law but the blameless applicant complied with all applicable zoning and site plan ordinances.

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A Superior Court judge's reassignment to another division does not satisfy the requirement of an "adverse employment action" which is essential to plead both a discrimination and retaliation case under LAD. A lateral transfer cannot result in any tangible harm when viewed objectively, and the loss of the designation, "Executive Judge", does not adversely affect the amount of responsibilities the judge had or the level of prestige.

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New Jersey Court of Appeals finds that a corporation is still responsible for unemployment compensation purposes until it is dissolved or files for bankruptcy. In this matter, the corporation of which plaintiff was the sole shareholder, director, and officer, was not dissolved until more than a year after he filed his claim for unemployment compensation, and three years after he ceased operations. As such, the plaintiff's claim was properly denied.

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New Jersey Court of Appeals affirms the dismissal of a police officer's claim of retaliation under the Conscientious Employee Retaliation Act. The plaintiff-police officer claimed that he suffered retaliation as a result of reporting a possible police cover-up of an incident that occurred during a bachelor party for another officer. The dismissal was affirmed since the plaintiff's actions in inquiring whether the incident was reported and asking the prosecutor to take his statement after the incident had already been reported as such, do not constitute whistleblowing activities.

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New Jersey Court of Appeals affirms decision to deny defendant's motion for a downward modification of his support obligation. In this matter, the defendant was the primary caretaker of one child while the plaintiff was the primary caretaker of another. The defendant was declared disabled by the Social Security Administration and the child under plaintiff's care began receiving social security benefits.

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New Jersey Court of Appeals affirms Family Court's decision to deny plaintiff's motion for an increase in alimony due to a change of circumstances. The change in circumstances is that the plaintiff suffers from severe depression and her ex-husband's income or ability to pay alimony has increased.

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The appellate panel affirms the entry of the amended final judgment of divorce, and granting custody of the parties' son with the plaintiff. Custody was determined based on the unfortunate and contentious history of problems between the parties; interference with the plaintiff's visitation rights; and the history of the child's academic and behavioral problems while under defendant's care.

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The New Jersey Court of Appeals ruled that it was not an abuse of discretion for the Family Part judge to direct monthly alimony payable to the defendant to be paid directly from the bankrupt plaintiff's New York City Police Disability Pension and Social Security Disability Pension. The judge properly concluded that the present application was simply one to enforce the reasonably-calculated award from those sources of income of which plaintiff is admittedly in receipt.

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The claimant, a student and full-time stock person for Target Stores, did not qualify for unemployment benefits because she left work voluntarily without good cause. The plaintiff contended that her work schedule conflicted with her school schedule, causing her to arrive late for class which jeopardized her grade point average and financial aid. As in Fonesca, this reason is purely personal and unrelated to her employment.

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The New Jersey Court of Appeals held that the plaintiff, a former accounts payable clerk, did not qualify for unemployment benefits because she left work voluntarily and without good cause. When the plaintiff failed to return to work following maternity leave because her child care arrangements had fallen through, this reason is purely personal and unrelated to her employment.

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The defendant is correct in maintaining a valid levy on the bank account of appellant -- now a Florida resident -- for the amount of his child support arrearages. The court held that if the appellant feels he is entitled to relief from his child support obligation because a different agreement was reached or, as he states, another man who is the father of his ex-wife's second and third child has agreed to take over as the supporting parent, he must file a motion in the Family Part where those issues can be properly adjudicated.

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The court granted the plaintiffs' application and declared the Township of Edison's municipal ordinance which authorized the acquisition of plaintiffs' property as null and void. The township claimed that the plaintiff's property was an area in need of redevelopment. The township's adoption of the Redevelopment Plan did not serve any legitimate public purpose and, in fact, had the effect of closing down plaintiffs' lawful, functioning business. The township wanted the defendant's property in order to build a pharmacy.

This is a small victory for property owners. In this case, the trial court dismissed the condemnation action because the Township failed to offer proof that the plan met the requests of New Jersey Law. The court found the plan was arbitrary, capricious and unreasonable.

This is an important case since it shows that the courts will not "rubber stamp" redevelopment plans. It is very important for the redevelopment authority to submit sufficient evidence to show that the area is in need of redevelopment and meets one of the criteria set forth in the law.

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The New Jersey Court of Appeals concludes that the trial court mistakenly let the jury determine the reasonableness of the covenants restrictions as well as the post-employment period for which the covenant should be enforced.

On remand the judge should apply the Solari three-part test and determine whether the covenant was reasonable under the circumstances.

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The plaintiff alleged that there were multiple incidents which created a racially hostile work environment which caused him to be discharged. Plaintiff also claimed that his union failed to investigate and remedy the problems.

The judge granted summary judgement to the defendant on both claims, finding that in regards to the claim against the employer, the plaintiff only showed that events took place to which he inferred a personal meaning. There was no evidence which a jury could conclude that the described incidents were intended to intimidate or create a hostile work environment. In the claim against the union, the plaintiff's claim was pre-empted by federal law.

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The plaintiff in this case was a 1/3 equal stockholder in the defendant corporation. Plaintiff was terminated and filed an oppressed stockholder action even though he never relinquished his shares to the defendants in accordance with the stockholder agreement. The defendant contended the plaintiff breached his non-compete and confidentiality agreements.

The New Jersey Court of Appeals dismissed both suits and agreed with the trial judge that the defendant's termination was made as a good faith business decision, and the plaintiff did not violate the confidentiality agreement because the defendant's customers were publically known. Since the defendant's customers were not a trade secret, the non-compete agreement was unenforceable.

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