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New Jersey Family Law and Divorce Case Law Review–April 21-25, 2014

On Behalf of | Apr 28, 2014 | Divorce |

Wainwright v. Sowanick, Appellate Division, April 21, 2014 (Unpublished Decision): The Appellate Court reversed the trial court’s denial of the Defendant’s application for a reduction in his child support obligation based upon a change in circumstances, finding that a precipitous decline in earnings over a four year period, despite the settlement agreement being finalized in the middle of the four year decline period, was sufficient to satisfy the Defendant’s burden of making a prima facie showing of a permanent and substantial change in circumstances. The Court stressed, however, that the finding did not guarantee a reduction in the child support, as once discovery was completed the ultimate determination of whether a change in circumstances existed which warranted a reduction in the child support would depend upon the specific facts surrounding (a) the Defendant’s current earnings and ability to earn at a greater rate; (b) the presumptions and basis for setting the support award in the settlement agreement; and (c) the assets available to the Defendant to pay the support despite his reduced earnings. The case makes clear, therefore, that there is a significant difference between satisfying the initial burden of a change in circumstances application, which results in a more detailed analysis of the facts and circumstances of the original agreement and the current financial situation, and actually recalculating support obligations.

Clark v. Clark, Appellate Division, April 22, 2014 (Unpublished Decision): The Appellate Division, in reviewing the role marital fault, in the form of embezzlement of money from the couple’s pharmacy business during the marriage, played in the award of alimony and the child support to be paid. The Court cited the New Jersey Supreme Court which has held that generally “marital fault is irrelevant” to determinations of alimony. Mani v. Mani, 183 N.J. 70, 72 (2005). However, the Court recognized two “narrow” exceptions: (1) “cases in which the fault has affected the parties’ economic life” ibid. and (2) “cases in which the fault so violates societal norms that continuing the economic bonds between the parties would confound notions of simple justice.” Ibid. The first exception “may be considered in the calculation of alimony” ibid. and the second exception may be considered “in connection with the initial determination of whether alimony should be allowed at all.” Ibid. The Appellate Division also emphasized the role economic marital fault will have on child support obligations: “It is fundamental that the right to support belongs to the child[.]” L.V. v. R.S., 347 N.J. Super. 33, 41-43 (App. Div. 2002) (citing Kopak v. Polzer, 4 N.J. 327, 333 (1950)). In addition, we stated in L.V., supra, 347 N.J. Super. at 39-40, that “there is no basis to impute to a child the custodial parent’s negligence, purposeful delay or obstinacy so as to vitiate the child’s independent right of support from a natural parent.” Moreover, it is clear that the martial fault of the custodial parent will not affect the obligor parent’s support obligation, and is an irrelevant consideration in fixing child support. Kinsella v. Kinsella, 150 N.J. 276, 314 (1997).

Herbruck v. Herbruck, Appellate Division, April 25, 2014 (Unreported Decision): In this Appellate Division case, the court reviewed the trial court’s decision to (a) deny permanent alimony and instead award rehabilitative alimony in a three and a half year marriage after the couple had lived together (albeit totally platonically) for over ten years and (b) award a BMW to the Wife despite the Husband having purchased the car with exempt funds. The Appellate Division affirmed the trial court’s award of rehabilitative alimony finding that the trial court made specific findings regarding the thirteen alimony factors and that the decision was reasonable. Specifically, the Appellate Division agreed with the trial court’s determination that the marriage was short term and that the premarital period of cohabitation should not be tacked on to the length of the marriage to result in a finding of a long term marriage and that any promises of financial support prior to the marriage were not relevant. The Appellate Division also affirmed the trial court’s award of the BMW to the Wife finding that if a spouse transfers such exempt property into a marital asset, he makes an interspousal gift that is subject to equitable distribution. Pascarella v. Pascarella, 165 N.J. Super. 558, 563-64 (App. Div. 1979) and noting that “[t]he general purpose of [the equitable distribution] provision is to empower courts ‘to allocate marital assets between the spouses, regardless of ownership.'” L.M. v. Div. of Med. Assistance & Health Servs., 140 N.J. 480, 496 (1995).

As the relevant case law in the field of family law and divorce in New Jersey constantly evolves, it is important to discuss your case with an experienced New Jersey divorce attorney to ensure your rights and obligations are protected.

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