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

In the State of New Jersey, a divorced parent’s obligation to provide toward the higher education of a child of the marriage is generally determined pursuant to the factors set forth in  Newburgh v. Arrigo, 88 N.J. 529 (1983).  However, in 2006 Gac v. Gac, 186 N.J. 535 (2006), was decided by the New Jersey Supreme Court, wherein the Father was not determined to be responsible to contribute toward the cost of his estranged daughter’s higher education.  In that case, the most determinative facts that led to the father being absolved of such an obligation by the Court included: (a) contribution was not sought by the Mother (or child) except by way of Cross Motion to the Father’s Motion to have the daughter emancipated following her graduation from college; (b) the Father had paid child support for his daughter throughout the period of her college education; and (c) the Father was not provided the opportunity to participate in the college selection process and the child selected an expensive private college that provided similar programs to those available at less costly State universities.

   
In its decision, Court provides some general guidelines for parents seeking college contribution for their children in a post-divorce setting:  “As soon as practical, the parent or child should communicate with the other party concerning the many issues inherent in selecting a college.  At a minimum, a parent of child seeking contribution should initiate the application to the court before the expenses are incurred.”  Id. at 546-547.  Moreover, “the failure to [seek contribution and initiate application to the court before college expenses are incurred] will weigh heavily against the grant of a future application.”  Id. (emphasis added).

   
Thus, if read in conjunction with the facts of the case and the factors set forth pursuant to Newburgh, a custodial parent should do the following in conjunction with a child’s college search and selection process in order to ensure that the non-custodial parent properly contributes toward the costs of the child’s education:

1.    Provide the non-custodial parent information and updates in writing regarding the child’s college search, preferably beginning in the middle of the child’s junior year of high school through the summer preceding his or her senior year.  Such information should include booklets from colleges or universities being considered regarding programs in which the child has an interest in pursuing, financial aid available to the child and/or parents, copies of applications, and any other relevant information. 

2.    In writing, request input from the non-custodial parent regarding the child’s college search and selection process.  This should be done at a minimum when: (a) the child is first beginning their college search and should include a list of the colleges or universities where the child wishes to visit and/or apply; (b) before the child actually begins making visits to the prospective colleges and/or universities, preferably setting forth the dates of anticipated visits; (c) subsequent to all visits setting forth a comprehensive list of college and/or universities to which the child anticipates applying; (d) subsequent to the application process; and (e) upon receipt of acceptances.

3.    In the summer preceding the child’s senior year of high school, in writing, request that the non-custodial parent review their finances and inform you as to their financial ability to contribute toward the child’s college expenses by a date certain.  If no response to such a request is received and/or the non-custodial parent’s answer is that he or she is unable to contribute or is only able to do so minimally, it is incumbent upon the custodial parent to file an application with the Court requesting determination as to each party’s obligation to contribute toward the cost of the child’s education. 

   
Preferably such an application should be filed subsequent to the child’s application to his or her selected colleges and or universities and before the child has made any determinative decision upon receipt of acceptances such that payment has been made or is due and owing. This may require application in the early fall of the child’s senior year in high school if the child wishes to go the path of early acceptance to a college or university. 
   
   
Note:  The Court in Gac does state that “[a] relationship between a non-custodial parent and a child is not required for the custodial parent or the child to ask the non-custodial parent” to contribute toward the child’s college expenses.  Id. at 546.  

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On January 28, 2008, I wrote an article for the New Jersey Law Journal discussing the consequences of a property owner’s failure to respond to a Tax Assessor’s Chapter 91 request. The article discussed the conflicting case law in this area, including the obligation of the owner of non-incoming producing property to respond to a Chapter 91 request. The cases went both ways, with some property owners experiencing the draconian remedy of the dismissal of their appeals for failure to provide income and expense information for owner-occupied properties.


On April 9, 2008, the Appellate Division of the Superior Court of New Jersey clarified the issue and held that Chapter 91's appeal-preclusion provision solely applies to income-producing properties. H.J. Bailey Company v. Neptune Township, 399 N.J. Super. 381 (App. Div. 2008). In this case, the tax assessor of Neptune sent the property owner a Chapter 91 request. The property owner failed to respond to the request within the statutory 45 day time period. When the property owner filed a tax appeal, the tax assessor moved to dismiss the appeal based upon the property owner’s failure to reply to the Chapter 91 request, relying principally upon Southland Corp. v. Dover Tp., 21 N.J.Tax 573 (Tax Ct. 2004) (discussed in NJ Law Journal Article). The property owner opposed the motion arguing that the property was owner-occupied and, under the applicable law, it had no obligation to respond to the Chapter 91 request. The Tax Court sided with the property owner and the Appellate Division affirmed holding that the appeal-preclusion provision of Chapter 91 does not apply to non-income producing property.


It is now clear that under New Jersey law, a owner of non-income producing properties is permitted to file a tax appeal even if it does not respond to the Chapter 91 request. Property owners must be aware of this decision since many assessors will seek to knock out appeals based upon a property owner’s failure to respond to a Chapter 91 Request, even if the property is owner-occupied.


It is important to note that this decision is limited to non-income producing properties. If a property owner receives any type of income from any source, it risks being found to be a “income producing property.” This is often problematic when an owner forms a separate company to hold title to a property, and enters into a lease with another company he or she owns. This will be found to be an income producing property. Often times it is beneficial to respond to a Chapter 91 request even if you are an owner-occupied property to avoid the potential of a tax court judge finding some type of income attributable to the property.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Property Settlement Agreements (herein after “PSAs”) are generally the mechanism utilized to set forth the terms of parties’ agreements and regulate post-judgement (post-divorce) issues. However, PSAs are not entirely enforceable in the context of bankruptcy. One example is in the context of joint debts or loans where one party assumes liability pursuant to the PSA and agrees to indemnify and hold the other harmless, but the other party’s name is not removed from the loan or debt. While such an agreement is enforceable by the Superior Court and generally properly brought before the family law division, this is not the case in the context where one party subsequently files for bankruptcy. If the party, who is not responsible for the debt or loan pursuant to the PSA, does not have his or her name removed from such debt or loan, once the responsible party is relieved of such debt or loan, the creditor can pursue payment from the other.


For example: Wife has a daughter from a prior relationship. Wife obtains a loan to pay for her daughter’s college education. Her husband, who is not the daughter’s father and thus has no legal responsibility to provide for her education, co-signs the loan. Husband and Wife are divorced three years later. In the Property Settlement Agreement, Wife agrees to be solely responsible for the loan and to indemnify and hold Husband harmless for same. Five years after entry of the Final Judgement of Divorce, Wife files for bankruptcy. The bankruptcy court discharges her from liability for the loan. The creditor subsequently pursues Husband, who has now not had any contact with Wife in several years, yet whose name remains on the loan as co-signor. When Husband does not make payment, believing that he is not liable for the loan pursuant to the parties’ PSA, and Wife’s agreement to indemnify and hold him harmless for same, the creditor begins to garnish his wages. (Alternatively they may have obtained a judgment against his home or other property.)


How to Protect Yourself:

1. Close all joint credit cards and/or accounts as soon as possible following entry of the PSA and/or Final Judgement of the Divorce, subject to the terms thereof.
Open new accounts and/or credit cards.

2. If possible, utilize joint funds prior to the division of same, to pay off or pay down joint debt. Upon division of same, pay off the debt utilizing a mechanism that will ensure that you both have a separate obligation under separate accounts. (i.e. there is $8,000 of marital credit card debt on a single charge card and each party agrees to be responsible for $4,000 of same. Each party should open a new card and transfer his or her share of the debt to that new account satisfying his or her obligation and ensuring that the marital debt is paid in full and the account is closed). Request that language placing such an obligation on both parties be included in the PSA if it is not already.

3. Have all joint loans refinanced, such that the non-liable party’s name is removed. Alternatively, consolidation may be a solution.

4. Check your credit score regularly. You are entitled to a free credit score report through the three main credit reporting agencies. However, when doing so via internet, beware of websites such as freecreditreport.com, where in order to access your credit report and score, you are automatically signed up for a 30 day trial, after which a monthly fee will be charged to your credit card. Read all small print thoroughly to avoid giving permission allowing the credit reporting agency from charging your credit card.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On June 3, 2008 David J. Byrne, Shareholder and Co-Chair of Stark & Stark's Community Associations group, will present a seminar discussing the collection of unpaid assessments and foreclosures at the Annual Pennsylvania and Delaware Valley Community Associations Institute Conference and Expo in Valley Forge, Pennsylvania.


The seminar is entitled Foreclosure and Collections in Pennsylvania and will begin at 9:00 AM. You can access additional information regarding this and other seminars, as well as a schedule of events for the conference here. Please also visit the CAI website for instructions on how to register for this event.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

For those community associations with pools, it just got a little safer to go back in the water...


On December 19, 2007, President George W. Bush signed into law the “Virginia Graeme Baker Pool and Spa Safety Act,” which requires that all existing public pools and spas to be retrofitted with certain approved types of safety drain covers and suction entrapment prevention devices. The law also requires barriers to protect small children from gaining unsupervised access to a pool or spa. The stated goal of this new legislation requiring these new safety measures is to eliminate all future risk of entrapment and prevent drowning, which is the second leading cause of death among children in the United States ages one to fourteen. You can find the text of this new law here.


The legislation defines public pools as those “open to the public generally” as well as pools open exclusively to a “residential real estate development or multi-family residential area”, making the law’s requirements specifically applicable to most community associations. This new legislation is currently in effect and all pools and spas must be in compliance by December 20, 2008, or they cannot be opened.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Gary S. Forshner and Vincent J. Mangini, Shareholders of Stark & Stark's Real Estate, Zoning & Land Use Group, will present a seminar tomorrow at the New Jersey Redevelopment Authority's Redevelopment Training Institute. The seminar will focus on redevelopment standing issues and a discussion on the relevant data needed in order to take a property for redevelopment.


The seminar will be held at Thomas Edison State College, tomorrow Thursday May 22, 2008 at 8:30 AM. You can access additional information regarding the seminar and other information provided by the New Jersey Redevelopment Authority here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Earlier today (May 21, 2008) President Bush signed into law a bill that prohibits employers from using genetic information about prospective employees to make decisions on hiring. The Bill had received almost unanimous support in both the House and Senate. The Bill contains, among other things, the following two Congressional findings (as stated in the bill):

(4) Congress has been informed of examples of genetic discrimination in the workplace. These include the use of pre-employment genetic screening at Lawrence Berkeley Laboratory, which led to a court decision in favor of the employees in that case Norman-Bloodsaw v. Lawrence Berkeley Laboratory (135 F.3d 1260, 1269 (9th Cir. 1998)). Congress clearly has a compelling public interest in relieving the fear of discrimination and in prohibiting its actual practice in employment and health insurance.
(5) Federal law addressing genetic discrimination in health insurance and employment is incomplete in both the scope and depth of its protections. Moreover, while many States have enacted some type of genetic non-discrimination law, these laws vary widely with respect to their approach, application, and level of protection. Congress has collected substantial evidence that the American public and the medical community find the existing patchwork of State and Federal laws to be confusing and inadequate to protect them from discrimination. Therefore Federal legislation establishing a national and uniform basic standard is necessary to fully protect the public from discrimination and allay their concerns about the potential for discrimination, thereby allowing individuals to take advantage of genetic testing, technologies, research, and new therapies.

This Bill contains the following prohibition:


SEC. 202. EMPLOYER PRACTICES.


(a) Discrimination Based on Genetic Information- It shall be an unlawful employment practice for an employer--

(1) to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee; or
(2) to limit, segregate, or classify the employees of the employer in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee, because of genetic information with respect to the employee.

(b) Acquisition of Genetic Information- It shall be an unlawful employment practice for an employer to request, require, or purchase genetic information with respect to an employee or a family member of the employee except--

(1) where an employer inadvertently requests or requires family medical history of the employee or family member of the employee;
(2) where--

(A) health or genetic services are offered by the employer, including such services offered as part of a wellness program;
(B) the employee provides prior, knowing, voluntary, and written authorization;
(C) only the employee (or family member if the family member is receiving genetic services) and the licensed health care professional or board certified genetic counselor involved in providing such services receive individually identifiable information concerning the results of such services; and
(D) any individually identifiable genetic information provided under subparagraph (C) in connection with the services provided under subparagraph (A) is only available for purposes of such services and shall not be disclosed to the employer except in aggregate terms that do not disclose the identity of specific employees;

(3) where an employer requests or requires family medical history from the employee to comply with the certification provisions of section 103 of the Family and Medical Leave Act of 1993 (29 U.S.C. 2613) or such requirements under State family and medical leave laws;
(4) where an employer purchases documents that are commercially and publicly available (including newspapers, magazines, periodicals, and books, but not including medical databases or court records) that include family medical history;
(5) where the information involved is to be used for genetic monitoring of the biological effects of toxic substances in the workplace, but only if--

(A) the employer provides written notice of the genetic monitoring to the employee;
(B)(i) the employee provides prior, knowing, voluntary, and written authorization; or
(ii) the genetic monitoring is required by Federal or State law;
(C) the employee is informed of individual monitoring results;
(D) the monitoring is in compliance with--

(i) any Federal genetic monitoring regulations, including any such regulations that may be promulgated by the Secretary of Labor pursuant to the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.), the Federal Mine Safety and Health Act of 1977 (30 U.S.C. 801 et seq.), or the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.); or
(ii) State genetic monitoring regulations, in the case of a State that is implementing genetic monitoring regulations under the authority of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.); and

(E) the employer, excluding any licensed health care professional or board certified genetic counselor that is involved in the genetic monitoring program, receives the results of the monitoring only in aggregate terms that do not disclose the identity of specific employees; or

(6) where the employer conducts DNA analysis for law enforcement purposes as a forensic laboratory or for purposes of human remains identification, and requests or requires genetic information of such employer's employees, but only to the extent that such genetic information is used for analysis of DNA identification markers for quality control to detect sample contamination.

(c) Preservation of Protections- In the case of information to which any of paragraphs (1) through (6) of subsection (b) applies, such information may not be used in violation of paragraph (1) or (2) of subsection (a) or treated or disclosed in a manner that violates section 206.


Employers should note this prohibition, and immediately stop any hiring practices that would run afoul of the Act.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

David J. Byrne, Shareholder and Co-chair of Stark & Stark's Community Associations group presented a seminar at the 1st Annual Cooperator's Co-Op & Condo Expo which was held May 14, 2008 in Secaucus, New Jersey. Mr. Byrne presented the seminar Successfully Transitioning A Community From Developer to Owner Control in conjunction with Paul Santoriello of Taylor Management Company. 


The seminar focused on a developer's obligations to a community association with respect to document and plan turnover, transfer of power, public offering statements, developer funding and New Jersey's Homeowners Warranty Act. The seminar also detailed management's role, and the board's role, in the transition, including the protection of evidence and retention of records, as well as a community's selection of experts and legal counsel and the importance and relevance of developers' commercial general liability insurance.


You can view a copy of Mr. Byrne's handouts here, as well as a copy of Mr. Santoriello's PowerPoint presentation here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Craig S. Hilliard, Shareholder and member of Stark & Stark's Litigation group was quoted in the article Case Questions Retroactivity of Change to Offer-of-Judgment Rule in the May 12, 2008 edition of the New Jersey Law Journal.

Mr. Hilliard believes that courts typically resist the retroactive application of new legislation and applying new laws to past acts is disfavored, either on constitutional grounds -- such as due process or, in the criminal context, ex post facto constraints -- or under a "manifest injustice" test.

Mr. Hilliard states, "The New Jersey Supreme Court historically has tested the fairness of applying new legislation to past acts by asking whether it is manifestly unjust to apply the law. But the Offer of Judgment rule in New Jersey is a court rule of procedure. In evaluating procedural rules, courts usually apply the "time of decision" rule, which means that the rule in effect at the time of the court's decision applies, even if it has some retroactive effect. No court in New Jersey has ever evaluated a court rule's retroactive effect under constitutional or "manifest injustice" standards, and we argued that it should not do so in this case, primarily because procedural rules usually do not implicate any substantive rights and therefore are not deserving of the same scrutiny applied to legislation."

You can read the full article here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

New Jersey has always protected to some extent the rights of a married person in and to New Jersey real estate owned by his/her spouse. Prior to May 28, 1980, protection was provided by means of an interest in the real estate called dower for the wife and curtesy (and not courtesy) for the husband. Effective May 28, 1980, the Legislature created an elective share for a spouse to share in the estate of a decedent spouse and a right of joint possession in the principal marital residence.


Dower and curtesy were abolished by the New Jersey Legislature as of May 28, 1980. (N.J.S.A. 3B:28-2). In New Jersey, the statutory rights of dower and curtesy gave the non-owning spouse a right to a life estate in one-half of the real property owned by the other spouse at the time of that spouse’s death. N.J.S.A. 3B:28-1. Dower and curtesy interests were created upon the acquisition of the property by a spouse in that spouse’s name only - or upon the date of the marriage between the two spouses, whichever date was later - until May 28, 1980. Property acquired on or after May 28, 1980 is not subject to dower or curtesy, nor is property acquired before that date by an unmarried person who later married on or after May 28, 1980.


In the situations where dower and curtesy interests still exist, the non-owning spouse must sign the deed conveying the property for the owning spouse to be able to convey clear title to a purchaser. For that reason a purchaser will want the non-owning spouse the sign the contract of sale along with the owning spouse. It is immaterial whether the real estate which is subject to a dower or curtesy interest is the marital residence or not.


In part to eliminate the ability of a decedent to disinherit his/her surviving spouse, the Legislature reformed our probate laws and created a right for the surviving spouse to seek an elective share of the decedent’s estate under certain circumstances (which this article does not address). N.J.S.A. 3B:8-1 et seq. As part of the probate reform legislation effective May 28, 1980, dower and curtesy were abolished, but a right of “joint possession” in the principal marital residence was created. N.J.S.A. 3B:28-3. This right provides that every married person shall be entitled to joint possession with his or her spouse during the marriage of real property occupied by them jointly as their principal residence if acquired by only one spouse on or after May 28, 1980. The effect is that title to property acquired on or after May 28, 1980 and occupied by spouses as a principal marital residence cannot be transferred without the consent of both spouses. All other real property owned by either spouse which is not the principal marital residence may be transferred without the consent of both spouses.


While there still remain instances where dower and curtesy may still exist, the protection provided to spouses since May 28, 1980 is now by means of the “right of joint possession.”

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Jonathan H. Katz and Elysa D. Bergenfeld, members of Stark & Stark's Community Associations group, authored the article Can Community Associations Restrict Sex Offenders? for the April 2008 issue of Community Trends.

The article discusses the steps New Jersey municipalities have taken over the past several years in an attempt to increase the safety of their residents, specifically for the children's safety in these areas. The article addresses "Pedophile-Free Zones" ordinances which prohibits sex-offenders from residing in or loitering within 500 feet of schools, parks or playgrounds.

You can read the full article here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Local ordinances requiring the disclosure of political contributions in connection with applications for land use approvals under the Municipal Land Use Law (“MLUL”) have popped up in one form or another in numerous New Jersey municipalities. Enacted ostensibly for the purpose of fostering good government and reducing corruption and appearances of impropriety, such laws can be unduly burdensome on landowners and developers. On April 17, 2008, in a case of first impression captioned Greenridge Estates, L.L.C. v. The Mayor and Township Council, et al. the New Jersey Superior Court, Law Division, reviewed an ordinance enacted in Monroe Township, Middlesex County, which required applicants for land use approvals and their professionals to disclose certain political contributions and business relationships and found it to be unconstitutional and contrary to the dictates of the MLUL.


In Greenridge Estates, a developer filed an application for preliminary major subdivision approval with the local planning board and, two days later, the municipal governing body adopted an ordinance requiring certain disclosures by applicants for land use approvals. For example, the said ordinance provided that an applicant must “[d]isclose all political donations made by the applicant, and any professionals of the applicant, within the past two (2) years, and any business relationship of the applicant or any of the applicant’s professionals with a board member, and list all consultants, facilitators or other professionals used in connection with the pending application.” All such disclosures “shall be a required checklist item for any land development application requiring a variance, waiver or exception,” and any “knowing failure” on the part of an applicant to comply with this mandate “shall be punishable by a two thousand dollar[-f]ine and/or remanding of the application to the board for reconsideration.”


When the planning board had deemed the developer’s application incomplete for failing to make the aforesaid disclosures, the developer filed suit against the municipality. In evaluating the merits of the developer’s challenge, the trial court described the controversy as impinging upon the developer’s constitutionally protected right to freedom of association and right to privacy and invalidated the Monroe Township ordinance on both grounds. The trial court based this ruling principally on the lack of a rational connection between the disclosures required by the subject ordinance and the stated purpose of the ordinance, that being the elimination of appearances of impropriety, and due to its being both over-inclusive and under-inclusive. In this regard, the trial court opined that “[t]here cannot be an appearance of favorable treatment due to political contributions since none of the members of the Zoning Board of Adjustment are elected, and only two of the nine Planning Board members may be elected officials.” In addition, “the Ordinance cannot be upheld because it is overly-broad[,]” since it requires the disclosure of all political contributions irrespective of the amount or the person to whom they were made requiring, hypothetically, “the disclosure of a $10 political contribution made by an applicant to the governor of Hawaii[.]” By the same token, “the Ordinance is under-inclusive[,] . . . because it does not apply to objectors to an application.”


In addition to constitutional infirmities, the trial court struck the “remand remedy” in the ordinance due to the lack of legislative authority in the MLUL to enact such provisions and “without such authority in the MLUL, the governing body cannot confer upon itself or anyone else the authority to remand an application for reconsideration once rights have vested.”


In the face of mounting regulations at every level of government, the Greenridge Estates decision is a breath of fresh air for beleaguered landowners and developers in Monroe Township. Although not precedential, the Greenridge Estates decision is well-reasoned and could serve as a springboard for positive rulings in other cases and the eventual elimination of local disclosure laws in the land use application process.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Cotswold vs. Renaud, et al.

On April 30, 2008, the Appellate Division in Cotswold v. Renaud, et al. evaluated whether an historic fountain, although not affixed to the real estate, was protected under a local preservation of historic landmarks ordinance.  In this case, a dispute arose when a property owner sought to remove from the grounds of an historic estate a six-foot high fountain after converting the property into condominiums without first obtaining a certificate of appropriateness from the municipality under the ordinance.  The fountain / statue, which consisted of four figures around an urn and weighed over 1,000 pounds, was designed by sculptor, Enid Yandell, and had been located at the historic estate since 1925.  The property owner maintained that the fountain was not attached to the land and, therefore, it was not within the historic site designation. After being instructed by the municipality to return the fountain, the property owner instituted a declaratory action for a court order finding the fountain to be outside the ambit of the municipality’s regulatory authority under the ordinance.  The municipality brought a counterclaim requesting the return of the fountain and the imposition of penalties.  The trial court ruled that the fountain was a part of the historic estate and ordered the property owner to return it until and unless the property owner is able to obtain a certificate of appropriates for its removal and relocation.  The trial court denied the municipality’s request for penalties.


On appeal, the property owner reiterated its position that the fountain is not properly governed by the local preservation of historic landmarks ordinance and also raised, for the first time, the contention that the subject ordinance is unconstitutional, as applied, because it effects a taking of the fountain.  The Appellate Division affirmed the trial court’s ruling in all respects and rejected the property owner’s constitutional argument stating, among other things, that “the Ordinance does nothing more than require that the fountain remain on the property where it has been for more than eighty years unless a Certificate of Appropriateness is obtained.”  Under these circumstances, which neither establish a physical taking nor deprive the property owner of all economic or beneficial use of the fountain, there is no governmental taking.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Mon Cheri Bridals, Inc. v. Wen Wu et al, Civil Action No. 04-1739 (AET)

Mon Cheri Bridals, a large wholesale manufacturer of wedding dresses and social occasion dresses, brought suit in U.S. District Court in Trenton, New Jersey against a competitor, Wen Wu and various companies he owned and controlled, alleging that Mr. Wu and his companies infringed on Mon Cheri’s copyrights in its dress designs, and breached a 1999 contract between the companies.


The initial dispute arose in August of 1998 between Mon Cheri and Wu concerning dress designs. Mon Cheri discovered that Wu was marketing his dresses using photographs of more expensive versions that Mon Cheri manufactured and sold.


Wu signed an affidavit swearing that he, and the other companies he owned and controlled, would not infringe upon Mon Cheri’s rights in the future. Mon Cheri later learned that Wu continued to sell dresses that infringed upon Mon Cheri’s copyright and trade dress rights.

 
The case went to trial before the Hon. Anne E. Thompson, U.S.D.J.  After two weeks of trial, on April 4th the jury returned a verdict in favor of Mon Cheri Bridals on its claims for copyright infringement, unfair competition and breach of contract.  The jury awarded Mon Cheri compensatory damages of $324,000 and punitive damages of $375,000, for a total verdict of $699,000. 


Mon Cheri Bridals, Inc. was represented by Craig S. Hilliard, Esq. and Martin P. Schrama, Esq., Shareholders of Stark & Stark’s Litigation Group.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Adam J. Siegelheim, member of Stark & Stark's Franchise Group, was quoted in the article On Franchising in the May 6, 2008 edition of the Wall Street Journal. The article addresses some of the most common issues facing new franchisors and some new concerns franchisors need to be aware of before starting a franchise of their own. Mr. Siegelheim comments on some of the factors that franchisors need to take into consideration when starting a new franchise, and some tips to ensure the longevity of your franchise concept.

You can read the full article on the Wall Street Journal Online (registration required).

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Three Critical Issues for Suppliers
On May 2, 2008, Linens-N-Things and its affiliated entities filed for Chapter 11 bankruptcy protection in the District of Delaware. Linens-N-Things has a number of different suppliers that are effected by this bankruptcy filing. Following are three (3) very important issues that suppliers should know about to ensure their rights in the bankruptcy proceeding.


RECLAMATION
Certain suppliers have the right to reclaim goods that they have shipped a bankrupt debtor. A creditor may attempt reclamation of their goods sold in the ordinary course under Bankruptcy Code § 546 (c). However a supplier must move quickly on their right to reclaim any of these goods that are lost. The supplier must make a demand in writing for reclamation of the goods no later than 45 days after delivery. If the 45 day period has not expired as of the date of the filing of the bankruptcy petition, the supplier will be provided an additional 20 days to demand reclamation of the goods sold.


ADMINISTRATIVE EXPENSE
In addition to reclamation, suppliers also have the ability to seek a priority administrative expense under Bankruptcy Code §503 (b). This claim is for the “value of any goods” received in the ordinary course of business by a debtor within 20 days prior to the bankruptcy filing. To obtain this expense, the supplier must make a request, often by motion. A supplier who exercises their rights, can be in a better position than unsecured creditors since the Chapter 11 Plan of Reorganization cannot be confirmed unless all administrative expense claims are paid in cash on the effective date of the bankruptcy plan.


PROOF OF CLAIM
In addition to the other rights mentioned, suppliers should also file a Proof of Claim for any amounts due and owing prior to the petition date. The Bankruptcy Code allows creditors to be paid with other similar situated creditors through the Bankruptcy Plan. The Proof of Claim deadline is usually provided at the beginning of the case and will allow creditors to exercise these rights. It is important to file a Proof of Claim properly and prior to the deadline.


For my information on supplier’s rights in the Linens-N-Things bankruptcy case or any other bankruptcy matters, please feel free to contact either Tom Onder or Jeff Posta in the Bankruptcy &  Creditor’s Rights Group at (609) 219-7458 or tonder@stark-stark.com, and (609) 791-7021 or jposta@stark-stark.com.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Myth 2: Divorced or unmarried parents do not have a financial obligation to provide post-secondary education support to their unemancipated children.


As a family law practitioner, I often find that one of the “hot button” issues for my clients is the forced contribution to the post-secondary (college) costs of their children. New Jersey is in the minority of states that require divorced and unmarried parents to contribute to at least a portion of their children’s educational expenses. Many scholarly articles and oral arguments have been made concerning the unfairness of this requirement because married parents have no legal obligation to support their children through college. However, the notion of a divorced or unmarried parent’s contribution seems heavily embedded in our law and a change does not seem to be on the horizon. As a parent of a college-aged child, it is important that you understand the law surrounding this obligation.


Our Supreme Court, in Newburgh v. Arrigo, 88 N.J. 529 (1982) addressed this issue directly and delineated the specific criteria to be considered in determining whether parents are legally obligated to fund higher education expenses:

1 - Whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education;
2 - The effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education;
3 - The amount of the contribution sought by the child for higher education;
4 - The ability of the parent to pay that cost;
5 - The relationship of the requested contribution to the kind of school or course of study sought by the child;
6 - The financial resources of both parents;
7 - The commitment to and aptitude of the child for the requested education;
8 - The financial resources of the child, including assets owned individually or held in custodianship or trust;
9 - The ability of the child to earn income during the school year or on vacation;
10 - The availability of financial aid in the form of college grants and loans;
11 - The child’s relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance;
12 - The relationship of the education requested to any prior training and to the overall long-range goals of the child; and
13 - Contribution made to household expenses by the current spouse of either parent [Hudson v. Hudson, 315 N.J. Super. 577 (App. Div. 1998)].

One could write volumes of articles regarding each of the above factors. However, for purposes of this forum, I will offer some practical tips when preparing for a court hearing regarding college contribution.


Get Your Financial Records In Order

As seen in factors 4 and 6, the financial resources of both parties is an important consideration. The Court will not force parents that are struggling financially to take an additional obligation that may place them at a serious risk of bankruptcy. The Court is going to want to review your previous 3-5 years worth of Tax Returns, W-2 Forms, Social Security Earning Statements, Bonus Information and Bank Records. This financial snapshot will allow the Court to determine each party’s ability to contribute to college expenses. Often times, Courts will set each parent’s financial obligation based off a respected percentage of their total combined incomes. For example, if the mother earns $100,000.00 per year and the father earns $50,000.00 per year, they would be required to contribute 66% and 33% respectively to the college tuition of their child.


Your accountant should have file copies of your previous tax returns and W-2 information. With regard to social security earning statements, you can contact the Social Security Department directly to receive this document. Make sure to allow yourself substantial time to retrieve these documents. I would suggest that you begin this process 30-45 days prior to meeting with an attorney or filing your motion Pro Se.


Do Your Homework Regarding Financial Aid Options

As evidenced in factor 10, the availability of grants, loans and scholarships is an important part to the contributing parent’s total. In my experience, judges often apply the amount of financial aid the student received “off the top” of the total college contribution amount attributed to the parents. It is important to understand the various types of loans (subsidized vs unsubsidized..etc) and the available financial aid packages available to your child. Also, make sure to fill out a complete FAFSA (Free Application For Federal Student Aid). This form will determine the student’s eligibility for state/federal grants and financial aid. Once this process is complete, you will get a clearer picture of what remaining portion of tuition will be the parents’ responsibility and you can set forward the appropriate financial strategies to satisfy this obligation.


Involve The Other Parent In The Decision-Making Process

Factor 11 deals with the child’s relationship with each parent and their responsiveness to parental guidance. Many parents learn of their children’s plans for college when they are served with a Court Motion regarding financial contribution. While this may not necessary block the moving party’s application for financial support, it certainly does not help your case when the other parent is not informed or involved in the college selection process. Even if your relationship with the other parent is strained, I recommend that you officially put him/her on notice that your child has plans to attend college. This can be accomplished by writing a letter and sending it through certified mail. At a minimum, this notice should be given to the other party when the child enters their Junior year in high school. This advance notice will give the parents plenty of time to discuss a possible agreement regarding contribution or alternately, a chance for the issue to resolved through the Court system before the child’s first tuition bill is due to the college.


In conclusion, it is very important to understand the law in New Jersey regarding each parent’s financial responsibility to support their children through college. People who leave themselves in the dark and believe that their financial obligation for their children ceases at high school graduation are placing themselves in a vulnerable position when their children attend college. If you are not married and have children that are approaching college age, it is my advice to talk to a financial planner to develop a payment strategy for this expense and consult with an experienced family law practitioner to review your legal rights.

• Email This
• Print
• Comments
• Trackbacks
• Share Link