Top 10 New Jersey Family Law Cases Decided In 2008

toptenOn January 31, 2009, the New Jersey Institute for Continuing Legal Education hosted the annual Family Law Symposium, a “must attend” annual learning event for family law attorneys practicing in New Jersey. One of the speakers at the Symposium presented his list of the “top 10 family law cases decided in 2008.” I thought that the selections might be of interest to readers of this blog. To the case list, I added a summary of each decision and a link to each case. Therefore, for all those who missed the Family Law Symposium this year, I present the nominees for the top 10 New Jersey family law cases decided in 2008:

1. Clark v. Pomponio, 397 N.J. Super. 630 (App. Div.), certif. denied., 195 N.J. 420 (2008): In this matrimonial action, the appellate court reversed an order by the trial court suppressing the defendant husband’s answer and entering a default judgment of divorce against the husband, who had filed a bankruptcy petition. The court held that a bankruptcy petition stayed any pending divorce action. Therefore, the court reversed the default judgment of divorce dealing with equitable distribution, attorneys fees and costs, and remanded the case to the trial court, ordering the court to resume the case procedurally from where it stood at the time defendant filed the bankruptcy petition.

2. Devaney v. L’Esperance, 195 N.J. 247 (2008): In this appeal, the N.J. Supreme Court determined that cohabitation is not an indispensable element of a cause of action for palimony. Rather, the Court identified two indispensable elements in a palimony lawsuit: a promise to support and a marital-type relationship. If the plaintiff can prove that a marital-type relationship existed, the Court held that the parties are not required to have cohabitated for a palimony action to proceed to trial.

3. Connell v. Diehl, 397 N.J. Super. 477 (App. Div.), certif. denied, 195 N.J. 518 (2008): In this palimony action, defendant Edward Diehl appealed from a December 6, 2005, judgment in favor of plaintiff Rosemary Connell awarding $107,494.40 in palimony, $70,000 as a return of an inheritance Connell received in 1997 and gave to Diehl, and $15,000 in counsel fees, less a partial payment of $36,000 from Diehl to Connell after they separated. Connell cross-appealed from the quantum of the award. The appellate division affirmed the trial judge’s conclusion that Connell was entitled to palimony, but reversed and remand for reconsideration of the quantum of the award. The appellate court held that the trial judge erred when he used the defendant’s life expectancy as a measure of the lump-sum palimony award instead of the plaintiff’s life expectancy.

4. Brundage v. Estate of Carambio, 195 N.J. 575 (2008): In this appeal, the Court considered the scope of the authority of the courts to inflict upon a client the burden of a penalty imposed because of his or her attorney’s violation of the Rules of Professional Conduct. The Court held that the appellate court should not have set aside the parties’ settlement agreement because the sanction had the effect of improperly penalizing the offending attorney’s client rather than the offending attorney directly.

5. Fawzy v. Fawzy, 400 N.J. Super. 567 (App. Div.), certif. denied, 196 N.J. 595 (2008): Defendant Samih Fawzy appealed from an amended judgment of divorce which confirmed and enforced an arbitration award of primary physical custody of the parties’ children to plaintiff Christine Saba Fawzy, and parenting time to defendant. The primary issue in this appeal was whether parties in a matrimonial action can agree to binding, non-appealable arbitration of child custody and parenting time issues. The Supreme Court concluded that such an agreement violated the court’s parens patriae obligation to protect the best interests of the children and was, therefore, void as a matter of law.

6. Greely v. Greely, 194 N.J. 168 (2008): This appeal presented two questions concerning the procedures to be followed in seeking a voluntary dismissal of a complaint for divorce or, in the alternative, dismissal of the complaint under the doctrine of forum non conveniens. The Supreme Court held that a divorce complaint could not be voluntarily dismissed by stipulation after an answer to the complaint had been filed. The court also held that a motion to dismiss a child custody matter on forum non conveniens grounds could be filed by any party, by the court or by another state’s court, but the non-custody allegations of the complaint could not be dismissed on forum non conveniens grounds.

7.strahan-v-strahan, 402 NJ Super. 298 (App. Div 2008): The New Jersey Appellate Division reversed the trial court’s award of $214, 745 in child support per year and sent the issue back to the lower court. The appeals court found that the judge had not adequately determined the “reasonable needs of the children” before awarding child support. The appeals court also ruled that the trial court erred in awarding counsel fees when the parties’ Prenuptial Agreement stated that the parties would be responsible for their own fees, and also concluded that there was no evidence of bias to support a remand to a different judge because “[b]ias cannot be inferred from adverse rulings against a party.”

8. Bayne v. Johnson, 403 N.J. Super. 125 (App. Div. 2008): The appellate court ruled that palimony could not be awarded even when the parties cohabitated and there was a promise of marriage if the party seeking palimony was aware that the other party did not have the means to provide a lifetime of support. Also, the court found that plaintiff could not demonstrate that she was unable to live independently at a reasonable level of support without palimony because she was not abandoned; it was plaintiff who left the defendant.

9. Rogers v Gordon, 404 N.J.Super. 213 (App. Div. 2008): On leave granted, the parties cross-appealled from an order denying plaintiff’s motion for reconsideration of an order declaring that a prenuptial agreement entered into by the parties before their 1981 marriage was unconscionable and thereby unenforceable. Both orders were entered after extended plenary hearings. The appeals court ruled that a prenuptial agreement entered prior to the adoption of the Uniform Pre-Marital Agreement Act may be modified upon a showing of substantially changed circumstances.

10. Nieschmidt Law Office v. Leamann, 399 N.J. Super. 125 (App. Div. 2008): The appellate court affirmed the trial court’s dismissal of the plaintiff law firm’s complaint for unpaid legal fees for failure to give thirty-day Pre-Action Notice pursuant to Rule of Court 1:20A-6.