Top Ten (10) New Jersey Family Law Cases Decided In 2010

In January 2011, the New Jersey Institute for Continuing Legal Education (NJICLE) hosted the annual Family Law Symposium. This year an overflow crowd of over 700 family lawyers were in attendance, the largest audience to attend any program ever held by NJICLE. One presentation in the Family Law Symposium identified the “top 10 family law cases decided in 2010.” As I did last year, and the year before that, I now present the “top ten” family law cases identified at the Family Law Symposium this year, along with a brief summary of the decisions and a link to each case.

Tannen v. Tannen, 416 N.J. Super. 248 (App. Div.), certif. granted, ___ N.J. ___ (2010). This is arguably the most important case decided in 2010. In Tannen, the divorcing wife was the sole beneficiary and co-trustee with her parents of an irrevocable trust established by her parents. The trust contained the marital residence where the couple resided during their 18 year marriage, commercial property and over $1.1 million in stocks and mutual funds. The trust paid the annual real estate taxes and capital improvements on the marital residence, half the annual cost of a housekeeper, and the children’s private school tuition. The trust also generated $124,000 per year in income. The trial court determined that the wife had a fiduciary duty to her husband to seek income from the trust, and her failure to do so constituted a breach of fiduciary duty. As a result, the trial court imputed income from the trust in determining the alimony and child support obligations. However, the appeals court disagreed, ruling that income from the trust should not be imputed to the wife because the trustees had complete discretion to determine whether to distribute trust assets and in what amount. The case has been accepted for consideration by the N.J. Supreme Court, and a decision is expected soon.

Johnson v. Johnson, 204 N.J. 529 (2010). In the usual case, a verbatim transcript is necessary to confirm an arbitration award which addresses child custody or parenting time issues except where, as in this case, the record created by the arbitrator is painstakingly detailed, including a recitation of all evidence considered, a recapitulation of every interview conducted and observation made, and a full explanation of the underpinnings of the award.

Crespo v. Crespo, 201 N.J. 207 (2010). In this case, the Supreme Court answered a number of previously open questions in holding that NJ’s Prevention of Domestic Violence Act (PDVA) is constitutional. Among other rulings, the Court found that a defendant charged with violating the PDVA may be entitled to legal counsel but is not entitled to a jury trial.

Colca v. Anson, 413 N.J. Super. 405 (App. Div. 2010). The Appellate Division held that a custodial parent cannot waive child support because the child support belongs to the child. A support obligation continues until the child is emancipated. The Court also ruled that a trial court can award child support even after it previously denied support, and even when the party seeking support failed to prove changed circumstances.

Parish v. Parish, 412 N.J. Super. 39 (App. Div. 2010). The Court held that a trial court is not permitted to enjoin a litigant from filing post-divorce motions to enforce Court Orders unless the Court first finds that the parties have engaged in frivolous litigation and lesser sanctions have failed.

Segal v. Lynch, 413 N.J. Super. 171 (App. Div.), certif. denied, 203 N.J. 96 (2010). The Appellate Division ruled that no cause of action exists for the tort of intentional inflection of emotional distress when a parent intentionally alienates a child from the natural bond and affection that should exist with the other parent. I previously blogged about the Segal v. Lynch case here.

Palombi v. Palombi, 414 N.J. Super. 274 (App. Div. 2010). The appeals court affirmed the trial court’s decision to deny oral argument on a series of post-divorce motions filed by the parties involving substantive issues such as custody, child support, college expenses and alimony. The trial court is permitted to exercise its discretion to deny requests for oral argument where no evidence beyond the motion papers and prior record is necessary to render a decision.

Van Horn v. Van Horn, 415 N.J. Super. 398 (App. Div. 2010). In this case, the Appellate Division held that an attorney who violates Court Rules by taking a mortgage from a client to secure payment of attorney’s fees while the attorney is representing the client cannot be disqualified from further representation of the client, although a court may invalidate the mortgage.

In the Matter of D.C. and D.C., Minors, 203 N.J. 545 (2010). In this case involving a sibling’s request for visitation, the trial and appellate courts employed a “best interests” standard in denying the request for sibling visitation. The Supreme Court reversed, holding that the lower courts employed the wrong legal standard. The Supreme Court held that, in cases involving sibling visitation, the sibling seeking visitation must prove by a preponderance of the evidence that denial of the visitation sought would result in harm to the child. Under the Supreme Court’s new standard, however, the result was the same as that reached by the lower courts: the sibling’s request for visitation was denied.

S.D. v. M.J.R., 415 N.J. Super. 417 (App. Div. 2010). In this case, the wife filed a claim of domestic violence against her husband, alleging assault, criminal restraint, sexual assault, criminal sexual contact and harassment. The husband defended himself by asserting that the actions complained of by the wife were accepted by the parties’ Muslim faith. The trial court dismissed the wife’s domestic violence action. On appeal, the appellate court revised, holding that religious beliefs cannot be accepted as a justification for acts made criminal by the law.