Litigation

Dad Gets Sole Custody of Two Daughters

Matyola v. Matyola

A-6846-00T5 (N.J. App. Div., Dec. 31)

The New Jersey Appellate Division has affirmed the family court's order granting the plaintiff ex-husband residential custody of the parties' two daughters, now 11 and 13 years of age.

The court's reasons for affirming were substantially the same as those expressed by the family court, ie, that although the parties agreed in a property settlement executed at the time of their divorce to share joint legal custody of the girls with the girls residing with the defendant ex-wife, neither the agreement nor the divorce resolved the 'acrimony' between them. Furthermore, contrary to the ex-wife's' contentions on appeal that a determination by a mental health professional as to the best interests of the girls was required; rather, the family court's power to appoint a mental health expert to determine the best interest of the girls is not 'a mandate that such an expert be appointed,' and the family court's findings that the plaintiff should have residential custody were supported by the record.

Court Questions Negotiated Support That Deviates Below Guidelines

Ordukaya v. Brown

A-6908-00T1

(N.J. App. Div., Jan. 31)

According to the New Jersey Appellate Division, where the parties submitted a property settlement agreement (the wife doing so without legal representation) incorporating child support provisions that were well below the guidelines, neither party nor the judge prepared a guideline worksheet, there was no 'good cause' determined to support such deviation and no consideration of whether the children's best interests were served, the failure to comply with the guidelines mandated a reversal and remand. Thus, the appellate court found that the trial court erred in denying the plaintiff-mother's motion to modify the child support award. It remanded for a hearing to consider the quantum of support, the application of the guidelines and appropriate findings consistent with the relevant court rules.

State Anti-SLAPP Statute Is Applied in Domestic Abuse Case for First Time

Smith v. Sadegh

A097702 (Cal. App. 1st, Jan. 13)

The California Court of Appeal, First Appellate District, has ruled that because a woman's report to police and her successful petition to a judge for a restraining order, after her former boyfriend allegedly threatened and abused her, is a protected exercise of her First Amendment rights, the former boyfriend's subsequent suit in which he sought damages based on his allegations that she had lied to the police, can be dismissed with an anti-SLAPP (Strategic Lawsuits Against Public Participation) motion. His only recourse is to prove in trial court that his claims had merit. The basic purpose of the law, which was originally enacted in the whistle-blower context, is to afford an individual a quick means of having a suit dismissed if the purpose of the lawsuit is to 'shut the person up.' This is the first case in which California's Anti-SLAPP statute has been applied in a domestic violence case.

Spying Spouse a Stalker?

H.E.S. v. J.C.S.

No. A-132-01

New Jersey's highest court has ruled that a man who secretly installed a video camera in his soon-to-be ex-wife's bedroom might be guilty of stalking and harassment, but that the 24 hours he was afforded to respond to the Domestic Violence Act charges violated his right to due process. Reversing two lower court rulings and remanding the case, New Jersey's Supreme Court cited the 'novelty of the factual circumstances' and said that the wife would have suffered little or no prejudice if the trial court had given her husband more time because a temporary restraining order was already in place. Identified only by their initials, the two were married for 18 years. Although the wife, H.E.S., filed for divorce in June 2000, the two still occupied separate bedrooms in the same home.

The husband filed a domestic-violence complaint against his wife, who in turn filed her own, but without indicating if her husband had engaged in stalking or harassment. Served on Aug. 23, the husband was told to appear in court the next day. At the hearing, H.E.S. testified that her husband had made threatening statements, and recounted four instances during the past 9 years where he had allegedly behaved abusively. She then told how she had found a video and audio microchip in her bedroom, and had traced the wires to a television monitor and VCR in her husband's bedroom. Over-ruling his insufficient-notice objection, the trial court found J.S.C. guilty of stalking and harassment, and entered a final restraining order against him.

Affirming, an intermediate appellate court agreed that J.C.S. had been afforded due process. It also ruled that the evidence supported the claim of stalking, but not harassment. But the state Supreme Court unanimously reversed, holding that basic due process requirements were not met because the husband was called to defend against allegations that were not pleaded in the complaint. The court added that while the state's Domestic Violence Act requires a hearing within 10 days of filing, the trial court should have granted a continuance. It held, however, the use of the surveillance equipment, when considered in the totality of the circumstances, met the legal definitions of stalking and harassment. The wife's attorney, Michele C. Verno of Linwood, NJ, said that the decision advanced the stalking and harassment laws in keeping up with technology. 'Courts are recognizing that stalking can take many different forms in today's society,' she said. 'Victims are being afforded more protection.'

Clement F. Lisitski of Ocean City, NJ, attorney for the husband, said he was pleased that the court recognized the primacy of due process over convenience. Mike McCurley, a Dallas family lawyer and past president of the American Academy of Matrimonial Lawyers, cautioned against reading too much into the ruling on stalking and harassment. 'If they're going to catch up with technology, this opinion doesn't get them there,' he said. (The above was written by Megan Rhyne, a staff writer for The National Law Journal, in which this article first ran.)

Custody Case Dismissed over Lack of New York Connection

M.B. II v. M.B.

N.Y.L.J. 12/26/02

(Family Ct., Nassau Cty.)

The New York Family Court, Nassau County, has found that a recently enacted child custody law conferred jurisdiction on that court, but only long enough for it to dismiss the case for a lack of significant connections with that state.

The court initially determined that the Nassau Family Court had exclusive continuing jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) to address the mother's claims, because all the parties were formerly residents of Nassau County and the divorce was issued by, and post-divorce proceedings all took place in, New York courts. However, the court then determined that an exception to exclusive continuing jurisdiction applied due to the father's and child's lack of significant connections to New York, and noted their significant connections to New Jersey. In so ruling, the court rejected the mother's novel argument that because New Jersey has not adopted the UCCJEA, her petition for modification of custody and visitation belonged in New York, even though the child and father lived in New Jersey.

Separate Property Used to Pay Off Community Debts Is Not Reimbursable

Nicholson v. Sparks

A094731 (Cal. App. 1st, Dec. 11)

According to the California Court of Appeal, First Appellate District, money given to a married son so he could pay off his and his wife's credit card obligations is not reimbursable upon the couple's divorce, even though the payments permitted the couple to qualify for a loan to purchase a home.

The court reasoned that the facts in this case did not fall within the scope of Family Code 2640(a), the exception to the general rule that use of separate property to pay community debts is not reimbursable. Under that section, separate property contributions to the acquisition of equity or the costs of making property improvements are reimbursable. In this case, however, the payment of the credit card debt did not contribute to either of those, but rather were used to pay debts that existed before the home was even purchased.

 

 

Dad Gets Sole Custody of Two Daughters

Matyola v. Matyola

A-6846-00T5 (N.J. App. Div., Dec. 31)

The New Jersey Appellate Division has affirmed the family court's order granting the plaintiff ex-husband residential custody of the parties' two daughters, now 11 and 13 years of age.

The court's reasons for affirming were substantially the same as those expressed by the family court, ie, that although the parties agreed in a property settlement executed at the time of their divorce to share joint legal custody of the girls with the girls residing with the defendant ex-wife, neither the agreement nor the divorce resolved the 'acrimony' between them. Furthermore, contrary to the ex-wife's' contentions on appeal that a determination by a mental health professional as to the best interests of the girls was required; rather, the family court's power to appoint a mental health expert to determine the best interest of the girls is not 'a mandate that such an expert be appointed,' and the family court's findings that the plaintiff should have residential custody were supported by the record.

Court Questions Negotiated Support That Deviates Below Guidelines

Ordukaya v. Brown

A-6908-00T1

(N.J. App. Div., Jan. 31)

According to the New Jersey Appellate Division, where the parties submitted a property settlement agreement (the wife doing so without legal representation) incorporating child support provisions that were well below the guidelines, neither party nor the judge prepared a guideline worksheet, there was no 'good cause' determined to support such deviation and no consideration of whether the children's best interests were served, the failure to comply with the guidelines mandated a reversal and remand. Thus, the appellate court found that the trial court erred in denying the plaintiff-mother's motion to modify the child support award. It remanded for a hearing to consider the quantum of support, the application of the guidelines and appropriate findings consistent with the relevant court rules.

State Anti-SLAPP Statute Is Applied in Domestic Abuse Case for First Time

Smith v. Sadegh

A097702 (Cal. App. 1st, Jan. 13)

The California Court of Appeal, First Appellate District, has ruled that because a woman's report to police and her successful petition to a judge for a restraining order, after her former boyfriend allegedly threatened and abused her, is a protected exercise of her First Amendment rights, the former boyfriend's subsequent suit in which he sought damages based on his allegations that she had lied to the police, can be dismissed with an anti-SLAPP (Strategic Lawsuits Against Public Participation) motion. His only recourse is to prove in trial court that his claims had merit. The basic purpose of the law, which was originally enacted in the whistle-blower context, is to afford an individual a quick means of having a suit dismissed if the purpose of the lawsuit is to 'shut the person up.' This is the first case in which California's Anti-SLAPP statute has been applied in a domestic violence case.

Spying Spouse a Stalker?

H.E.S. v. J.C.S.

No. A-132-01

New Jersey's highest court has ruled that a man who secretly installed a video camera in his soon-to-be ex-wife's bedroom might be guilty of stalking and harassment, but that the 24 hours he was afforded to respond to the Domestic Violence Act charges violated his right to due process. Reversing two lower court rulings and remanding the case, New Jersey's Supreme Court cited the 'novelty of the factual circumstances' and said that the wife would have suffered little or no prejudice if the trial court had given her husband more time because a temporary restraining order was already in place. Identified only by their initials, the two were married for 18 years. Although the wife, H.E.S., filed for divorce in June 2000, the two still occupied separate bedrooms in the same home.

The husband filed a domestic-violence complaint against his wife, who in turn filed her own, but without indicating if her husband had engaged in stalking or harassment. Served on Aug. 23, the husband was told to appear in court the next day. At the hearing, H.E.S. testified that her husband had made threatening statements, and recounted four instances during the past 9 years where he had allegedly behaved abusively. She then told how she had found a video and audio microchip in her bedroom, and had traced the wires to a television monitor and VCR in her husband's bedroom. Over-ruling his insufficient-notice objection, the trial court found J.S.C. guilty of stalking and harassment, and entered a final restraining order against him.

Affirming, an intermediate appellate court agreed that J.C.S. had been afforded due process. It also ruled that the evidence supported the claim of stalking, but not harassment. But the state Supreme Court unanimously reversed, holding that basic due process requirements were not met because the husband was called to defend against allegations that were not pleaded in the complaint. The court added that while the state's Domestic Violence Act requires a hearing within 10 days of filing, the trial court should have granted a continuance. It held, however, the use of the surveillance equipment, when considered in the totality of the circumstances, met the legal definitions of stalking and harassment. The wife's attorney, Michele C. Verno of Linwood, NJ, said that the decision advanced the stalking and harassment laws in keeping up with technology. 'Courts are recognizing that stalking can take many different forms in today's society,' she said. 'Victims are being afforded more protection.'

Clement F. Lisitski of Ocean City, NJ, attorney for the husband, said he was pleased that the court recognized the primacy of due process over convenience. Mike McCurley, a Dallas family lawyer and past president of the American Academy of Matrimonial Lawyers, cautioned against reading too much into the ruling on stalking and harassment. 'If they're going to catch up with technology, this opinion doesn't get them there,' he said. (The above was written by Megan Rhyne, a staff writer for The National Law Journal, in which this article first ran.)

Custody Case Dismissed over Lack of New York Connection

M.B. II v. M.B.

N.Y.L.J. 12/26/02

(Family Ct., Nassau Cty.)

The New York Family Court, Nassau County, has found that a recently enacted child custody law conferred jurisdiction on that court, but only long enough for it to dismiss the case for a lack of significant connections with that state.

The court initially determined that the Nassau Family Court had exclusive continuing jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) to address the mother's claims, because all the parties were formerly residents of Nassau County and the divorce was issued by, and post-divorce proceedings all took place in, New York courts. However, the court then determined that an exception to exclusive continuing jurisdiction applied due to the father's and child's lack of significant connections to New York, and noted their significant connections to New Jersey. In so ruling, the court rejected the mother's novel argument that because New Jersey has not adopted the UCCJEA, her petition for modification of custody and visitation belonged in New York, even though the child and father lived in New Jersey.

Separate Property Used to Pay Off Community Debts Is Not Reimbursable

Nicholson v. Sparks

A094731 (Cal. App. 1st, Dec. 11)

According to the California Court of Appeal, First Appellate District, money given to a married son so he could pay off his and his wife's credit card obligations is not reimbursable upon the couple's divorce, even though the payments permitted the couple to qualify for a loan to purchase a home.

The court reasoned that the facts in this case did not fall within the scope of Family Code 2640(a), the exception to the general rule that use of separate property to pay community debts is not reimbursable. Under that section, separate property contributions to the acquisition of equity or the costs of making property improvements are reimbursable. In this case, however, the payment of the credit card debt did not contribute to either of those, but rather were used to pay debts that existed before the home was even purchased.