Litigation

Relocation Within State Permissible

Relocation within the state is permissible where the non-custodial parent's rights will not be affected, and where the parties' original agreement provided for the issue of relocation within the state. Schultz v. Morris-Schultz, A-4456-01T2, N.J. Super. Ct. App. Div., June 27, 2003.

The parties were divorced in 1998 and had joint legal custody; the mother became the residential custodian. The parties agreed that the mother would not make an application to relocate with the child outside of New Jersey prior to June 30, 2000 unless the father failed to return to New Jersey after a temporary relocation to Maryland for medical training. On or about May 2000, the mother decided to sell the former marital home and relocate to another county within the state of New Jersey. The trial court granted the mother's application to relocate within the state, holding that this was not an issue of “removal” because the mother was requesting relocation within the state of New Jersey. The appellate court affirmed, holding that the father's relationship or visitation rights with the child would not be affected by the mother and child's relocation to another county within the state; furthermore, the parties' initial settlement agreement provided that the mother had the right to relocate within the state of New Jersey.

Abuse of Discretion, Court Rules

Failure to distribute the husband's police pension was an abuse of discretion where there was a dissipation of assets by the husband and the wife was unemployed. Lagermann v. Lagermann, ED 81357, Mo. Ct. App., Eastern Dist., Div. 2, June 30, 2003.

The parties were married in 1971. The husband was employed as a police officer for 26 years and retired in 2000, at which time he received a lump sum payment of $48,000 and a monthly pension allowance of $1900. Prior to the parties' divorce trial, the husband commenced employment as a radio dispatcher with the police department with a salary of $23,000 per year. The parties also owned one floor of a two-family home that had caught fire; they received an insurance payment in the sum of $56,000 as a result of the fire. The issue of equitable distribution was decided by the trial court. The wife was awarded: 1) the fire- damaged marital home valued between $68,000-$88,000 with a mortgage of $33,000, 2) a 1993 Dodge Caravan, 3) the $56,000 of insurance money from the fire, and 4) her pension from the board of education valued at $4100. The husband was awarded: 1) a 1998 Chevrolet Silverado, 2) his lump sum payment from the police department of $48,000, and 3) miscellaneous personal property. The husband was also ordered to pay $200 per month in spousal maintenance, $760 per month in child support and the children's health insurance of $72 per month. The husband's pension was not distributed and the wife appealed, objecting to the failure to distribute the pension as inequitable. The appellate court agreed that the distribution was inequitable and remanded the issue of the distribution of the husband's monthly benefit to the trial court. It noted that based upon the circumstances of this case, which included dissipation of assets by the husband, the distribution of the husband's pension should not have been ignored and was an abuse of discretion because it was the most valuable asset of the marriage.

Prenuptial agreement; res judicata

After a final judgment of divorce, the husband's breach of contract claim against the wife could not be sustained based upon res judicata. Wright v. Zielinski, R.I. Sup. Ct., 824 A2d 494, June 11, 2003

The parties entered into a prenuptial agreement in 1980. The agreement provided that each party would waive alimony and other divisions of property. The agreement stated that the parties accepted the terms of the agreement and waived other rights and claims they might have. In 1995, the wife filed for a divorce, seeking alimony, equitable distribution, health insurance and other financial relief. In 1997 the parties eventually agreed to a divorce under the terms of the 1980 prenuptial agreement. After the final judgment of divorce was entered, the husband commenced an action against the wife, claiming breach of contract, abuse of process and intentional infliction of emotional distress against the wife because the wife sought to evade the validity of the prenuptial agreement. The trial court granted the wife's motion for summary judgment and the appellate court affirmed. It held that res judicata (claim preclusion) applied to the husband's claims because he could have litigated those claims at the time the wife filed the original divorce action. seeking relief inconsistent with the parties' prenuptial agreement. Furthermore, there was no evidence that the wife commenced the divorce action for the purpose of an “abuse of process” or other “improper, ulterior purpose.” Even if the wife initially may have sought to invalidate or ignore the prenuptial agreement, there was no proof offered that her intent was to “achieve some improper ulterior objective.” Finally, the husband could not support his claim of intentional infliction of emotional distress because he could not show that the wife “intentionally or recklessly” engaged in conduct to cause emotional harm.

Credit for Payment of Marital Obligation

The former husband was entitled to a credit prior to transfer of a lump sum payment to the former wife because he made payments related to the parties' real property that were marital obligations. Chabbott v. Chabbott, 2001-05392, N.Y. Sup. Ct., App. Div, 2d Dept., June 16, 2003.

The parties were divorced in 1998. As part of the financial settlement, the former husband was required to make a payment to the former wife from funds held in escrow resulting from the sale of real property previously owned by the parties during the marriage. The former husband claimed he was entitled to a credit representing his share of carrying charges on the parties' former marital home, and another credit representing his share of carrying charges on the parties' former summer home. The appellate court agreed that the payments made by the husband were obligations of both parties because the parties' agreement indicated that the payments were marital obligations. In addition, the appellate court held that the trial court erred insofar as it denied the former husband's application for a credit for back taxes owed to the Internal Revenue Service. This too, was a joint obligation to be shared equally by the parties.

Relocation Within State Permissible

Relocation within the state is permissible where the non-custodial parent's rights will not be affected, and where the parties' original agreement provided for the issue of relocation within the state. Schultz v. Morris-Schultz, A-4456-01T2, N.J. Super. Ct. App. Div., June 27, 2003.

The parties were divorced in 1998 and had joint legal custody; the mother became the residential custodian. The parties agreed that the mother would not make an application to relocate with the child outside of New Jersey prior to June 30, 2000 unless the father failed to return to New Jersey after a temporary relocation to Maryland for medical training. On or about May 2000, the mother decided to sell the former marital home and relocate to another county within the state of New Jersey. The trial court granted the mother's application to relocate within the state, holding that this was not an issue of “removal” because the mother was requesting relocation within the state of New Jersey. The appellate court affirmed, holding that the father's relationship or visitation rights with the child would not be affected by the mother and child's relocation to another county within the state; furthermore, the parties' initial settlement agreement provided that the mother had the right to relocate within the state of New Jersey.

Abuse of Discretion, Court Rules

Failure to distribute the husband's police pension was an abuse of discretion where there was a dissipation of assets by the husband and the wife was unemployed. Lagermann v. Lagermann, ED 81357, Mo. Ct. App., Eastern Dist., Div. 2, June 30, 2003.

The parties were married in 1971. The husband was employed as a police officer for 26 years and retired in 2000, at which time he received a lump sum payment of $48,000 and a monthly pension allowance of $1900. Prior to the parties' divorce trial, the husband commenced employment as a radio dispatcher with the police department with a salary of $23,000 per year. The parties also owned one floor of a two-family home that had caught fire; they received an insurance payment in the sum of $56,000 as a result of the fire. The issue of equitable distribution was decided by the trial court. The wife was awarded: 1) the fire- damaged marital home valued between $68,000-$88,000 with a mortgage of $33,000, 2) a 1993 Dodge Caravan, 3) the $56,000 of insurance money from the fire, and 4) her pension from the board of education valued at $4100. The husband was awarded: 1) a 1998 Chevrolet Silverado, 2) his lump sum payment from the police department of $48,000, and 3) miscellaneous personal property. The husband was also ordered to pay $200 per month in spousal maintenance, $760 per month in child support and the children's health insurance of $72 per month. The husband's pension was not distributed and the wife appealed, objecting to the failure to distribute the pension as inequitable. The appellate court agreed that the distribution was inequitable and remanded the issue of the distribution of the husband's monthly benefit to the trial court. It noted that based upon the circumstances of this case, which included dissipation of assets by the husband, the distribution of the husband's pension should not have been ignored and was an abuse of discretion because it was the most valuable asset of the marriage.

Prenuptial agreement; res judicata

After a final judgment of divorce, the husband's breach of contract claim against the wife could not be sustained based upon res judicata. Wright v. Zielinski , R.I. Sup. Ct., 824 A2d 494, June 11, 2003

The parties entered into a prenuptial agreement in 1980. The agreement provided that each party would waive alimony and other divisions of property. The agreement stated that the parties accepted the terms of the agreement and waived other rights and claims they might have. In 1995, the wife filed for a divorce, seeking alimony, equitable distribution, health insurance and other financial relief. In 1997 the parties eventually agreed to a divorce under the terms of the 1980 prenuptial agreement. After the final judgment of divorce was entered, the husband commenced an action against the wife, claiming breach of contract, abuse of process and intentional infliction of emotional distress against the wife because the wife sought to evade the validity of the prenuptial agreement. The trial court granted the wife's motion for summary judgment and the appellate court affirmed. It held that res judicata (claim preclusion) applied to the husband's claims because he could have litigated those claims at the time the wife filed the original divorce action. seeking relief inconsistent with the parties' prenuptial agreement. Furthermore, there was no evidence that the wife commenced the divorce action for the purpose of an “abuse of process” or other “improper, ulterior purpose.” Even if the wife initially may have sought to invalidate or ignore the prenuptial agreement, there was no proof offered that her intent was to “achieve some improper ulterior objective.” Finally, the husband could not support his claim of intentional infliction of emotional distress because he could not show that the wife “intentionally or recklessly” engaged in conduct to cause emotional harm.