Arbitration OK’d for Custody

OK – Arbitration has been approved by the Supreme Court of New Jersey as a way to resolve those pesky child custody and visitation issues. Those of you fighting over the kids now have another way of spending their college funds to get over on one another. Read the entire case of Fawzy v. Fawzy decided on July 1, 2009 here. http://lawlibrary.rutgers.edu/courts/supreme/a-38-08.opn.html

Emailers beware

Those of you who use company email or computers to send emails to your attorney better beware that those emails may be subject to discovery, and not protected by the attorney client privilege. That’s what happpened to Maria Stengart whose email to her attorney as to her plans to sue her employer popped up in that very lawsuit. Whoops – Maria shouldn’t have used the company’s laptop! Read all about it in Steigart v. Loving Care Agency (BER-L_858-08). Loving Care Agency may not have been loving in Ms. Stengart’s eyes after all!

Gay Divorce OK – Gay Marriage NG

Here’s one to tickle your psyche. A Gay couple, legallly married in Canada was granted a divorce in good ole Mercer County recently. Here it seems that the plaintiff, La Kia Hammond had moved to NJ and thus did not satisfy the residency requirement under Canadian law. She was separated and was living in New Jersey. Lia Kia had been diagnosed with terminal musculat dystrophy and needed a divorce quickly so that she could move back to Canada and marry another woman who was willing to care for her. Her partner did not contest the divorce.
In determining that the couple was entitled to divorce in New Jersey, Superior Court Judge Mary Jacobson ruled that even though New Jersey does not permit same sex marriage, nevertheless, the principle of comity requires our courts to recognize marriages granted in other states or countries. The judge determined that the marriage did not violate the public policy of New Jersey, and would be recognized for dissolution purposes. In ruling from the bench, Judge Jacobson expressed that what Lia Kia needed, is a divorce, and not a civil union dissolution, because she was married, and “you don’t end a marriage with a dissolution of a civil union.” I give kudos to Judge Jacobson for putting common sense and decency in front of old minded bigotted notions, and doing the right thing in this difficult case.

Palimony – About to be abolished??

Once again Palimony is in the news – The Bill – blogged about below – S2091, requiring palimony agreements to be in writing to be enforceable recently passsed out of comimittee. I don’t know about you all – but I’ve NEVER seen an agreement for palimony in writing. Isn’t the whole point that the relationship was never formalized?????? The bill would overturn D’Devaney v. L’Esperance, (decided June 17, 2008) holding that cohabitation is not required for a finding of palimony, In re Estate of Roccamonte, (174 N.J. 381) (2002) which held that plaimony could be awarded against the estate of the cohabitant’s, and Kozlowski v. Kozlowski, 80 N.J. 378 (1979), which held that a promise of lifetime support by one cohabitant to another in a marital-like relationship would be enforced, if one of the partners was induced to cohabit by the promise.

NJ to bar alimony/equitable distribution to killers

The NJ Legislature is considering a bill A2681 which would ban husbands and wives who have been convicted of trying to kill, or consipiring to kill their spouse from an equitable distribution award incident to a divorce proceeding. The bill would also bar a spouse convicted of murder (you think!) or of attempted murder, manslaughter criminal homicide or aggrivated assault from receiving alimony. Further the intended victim would not have to pay their spouses attorneys fees. The bill, if passed would also eliminate a parent’s right to inherit from the estate of their child if the parent abused, abandoned, neglected, endangered the welfare of, or committed any sexual offense against the minor child.
This remedial legislation was spurred on by the 2007 case of Calbi v. Calbi ,396 (NJ SUper 532) where a mother who had beat her child to death in a drunken stupor was awarded alimony from her former husband, the child’s father after her release from prison.

Palimony – Again!

All you Palimony watchers out there should be aware that the Senate Judiciary just this week expressed support for a bill that would require all palimony agreements to be in writing to be enforceable. The bill, S-2091, if passed into law would amend NJS 25:1-5 the already existing statute that requires all prenuptial agreements to be in writing, and overturn the three NJ Supreme Court rulings that have in recent years established the criteria for awards of palimony: Kozlowski v. Kozlowski, 80 N.J. 378 (1978), In Re Estate of Roccamonte, 174 N.J. 381 (2002) and Devany v. L’Esperance, 195 N.J. 247 (2008) – Both Roccamonte and Devany are digested at http://www.helenglassesq.com/new-jersey-divorce-news.htm
Ahh the “good old days” are it would appear, about to be gone . . . .

Levine v. Levine – Vacation with your Attorney? Duh!

In a recent case appealed from Hudson County to and decided by the Appellate Division in December, 2008, the defendant/wife’s application to modify the PSA to extend her vacation time with the children, so that she could vacation in Europe for two weeks with her ATTORNEY (Yes folks – Her DIVORCE attorney), was in a rare excersise of common sense DENIED.
Levine v. Levine – View it here: http://lawlibrary.rutgers.edu/decisions/appellate/a0638-07.opn.html

Palimony – You gotta love it!

In Bayne v. Johnson, [A-0974-061T1], decided on October 27, 2008, the NJ Appellate Division overturned the trial court’s decision granting Palimony to the long time live in girlfriend of the married defendant. In what can only be described as “unusual facts,” in 1978, Earl Johnson then 41 married Carolyn Johnson then 61. Earl had been married three times before, and Carolyn, the beneficiary of an 11 Million dollar trust, (which paid her between $200,000. and $300,000. per year) had been married six times previously. Carolyn had three children, (none of whom she got along with) and was fearful that one of them, was planning to have her declared incompentent so as to take control of her trust. (Perhaps the kids were right!) Thus, the marriage between Carolyn and Earl was one of convenience, and they agreed to live separate lives, with Carolyn bankrolling Earl’s numerous and largely unsucessful businesses. Indeed in 1981, while Carolyn and Earl lived in the Bahamas he began a relationship with Bayne who was (of all things) an airline stewardess. Eventually Earl rented an apartment for Bayne, telling her that he lived with and cared for his elderly ill aunt who did not want anyone else living in the apartment.
Eventually they all moved to Florida, where again, Carolyn and Earl lived together in one apartment and Bayne in another which was paid for by Earl, using his wife’s funds.

In the mid 1980’s Bayne started pressuring Earl to marry her, but he put her off. Eventually when she discovered that Earl’s “elderly Aunt” was actually his wife, he claimed that it was not actually a true marriage, and promised that he would “take the next step,” after he could ensure that his wife would be taken care of financially!

Subsequently, the trio moved from place to place, following the path of Earl’s business attempts and failures. At times they lived in one apartment with Bayne caring for Caroline.

Despite Earl’s poor business acumen, they were able to live well on Caroline’s trust fund income. In 1996, Bayne, contributed $10,000. which she had borrowd from her mother, towards a Condo in North Bergen. Earl contnined to have business problems, and by 2000, Bayne had enough, and moved back to England, still not having secured a marriage committment from Earl.

In 2004, Bayne sued Earl for palimony, fraud, unjust enrichment and conversion of the monies she contributed towards the North Bergen Condo. After an 8 day trial in Hudson County, Judge Maureen Sogluizzo found that there had been an enforceable agreement and that Bayne was entitled to a judgment of almost $400,000. for paimomy.

Unfortunately for Bayne, the NJ Appellate Division thought differently and reversed Judge Sogluizzo, finding “Palimony is the enforcement of a broken promise made for futute support. It is not recompense for years spent in a failed relationship nor an economic substitute for opportunities that may have been lost of expectations that were unfulfilled.” All Bayne ended up with was an equity interest in the North Bergen Condo!

Bayne v. Johnson will be digested in the NJ Superior Courts reporter, and may be accessed here: http://lawlibrary.rutgers.edu/courts/appellate/a0974-06.opn.html

Currey v. Currey – NJ Appellate Division – No Harassment

Here, the judge only found that defendant disabled the motor­cycle, “took a garment she was wear­ing and demanded the car keys.” The judge further found that defendant “was expressing his anger and frus­tration and did it with the purpose to annoy, in retaliation for the wrongs he felt that happened to him.” These findings are patently insufficient to support the issuance of the FRO.

The judge did not find that defendant engaged in a “course of alarming conduct or of repeatedly committed acts” as required by N.J.S.A. 2C:33-4(c). He did not find that it was defendant’s purpose to seriously annoy plaintiff, finding only that he expressed “his anger and frustration and did it with the purpose to annoy,” an insufficient finding under N.J.S.A. 2C:33-4(c). See Hoffman, supra, 149 N.J. at 581. He did not find a previous history of domestic violence, nor did he find the existence of any immediate danger to plaintiff, two important factors to con­sider under N.J.S.A. 2C:25-29(a)(1) and (2). Peranio, supra, 280 N.J. Super. at 54. We are satisfied that the evidence established no more than the “ordinary domestic contretemps,” id. at 57, that one might expect when a spouse believes that he or she has discovered direct evidence of the other spouse’s infidelity.

Find it here:  Curry v. Currey App. Div, January 20, 2009 http://lawlibrary.rutgers.edu/decisions/appellate/a2612-07.opn.html

Judge Sybil Moses

Today we buried the Hon.  Sybil Moses, former assignment judge for Bergen County, and in fact the first woman assignment judge ever in the state.  Judge Moses was 69 years old and had been the assignment judge in Bergen County since 1997, and had served in all of the court parts before that including Family, Criminal, Civil and Probate.  

I had the experience of appearing before Judge Moses in every part she presided over.  I always found her fair and even handed.   As assignment judge she brought many innovations to the courthouse including the day care center and the new law library.

The service was attended by many local attornies and judges, and such luminaries as Gov. Jon Corzine and Sen.  Frank Lautenberg.

I was impressed with the kind words of the Judge’s children, and her husband Stephen Moses.   Especially profound were the words of her daughter, Jennifer who said the her Mother had given her the mantra to live by that a “parent is no happier than their most unhappy child.”

Judge Moses retired in October, 2008 for health reasons.  She will be missed.