NJ & CT News

CONNECTICUT

Court Reads Too Much into Separation Agreement

In Danehy v. Danehy, 118 Conn.App. 29 (11/17/09), the Appellate Court of Connecticut overturned an order denying an ex-husband's motion for modification of alimony, because the lower court impermissibly altered the terms of the couple's separation agreement to include a requirement that the husband prove diminished earnings capacity if he wanted the alimony decreased. Pursuant to the parties' separation agreement, the defendant ex-husband was to pay the plaintiff a set amount, which was “modifiable as to amount.” The separation agreement explicitly stated that “[t]hese orders are based on a presumed gross income to the [defendant] of $70,000 per year and a presumed gross income to the [plaintiff] of $25,000 per year. The [plaintiff] shall have a safe harbor of earnings to $25,000 per year which shall not constitute a substantial change in circumstances for purposes of a modification.” In the modification proceedings, the ex-husband presented evidence that his income was no longer $70,000, but $41,000. The ex-wife showed that she was earning less than $25,000. The lower court considered this information and issued a written decision stating, “The stipulation for the dissolution presumed an earnings capacity for the defendant of $70,000 and a 'safe harbor' for the plaintiff of $25,000 per year. [The] plaintiff is not earning $25,000 [per year] at the present time and no evidence was presented to indicate an inability of an earnings capacity of $70,000. Motion for modification denied.”

On appeal, the Appellate Court noted that courts are not permitted to “disregard the words used by the parties or revise, add to, or create a new agreement.” Collins v. Sears, Roebuck & Co., 164 Conn. 369 (1973). In Danehy, the plain language of the separation agreement stated that the alimony was based on the presumed gross income of the parties and that the amount was modifiable. Nothing was said about the parties' earning capacities. Therefore, the language of the agreement could not be interpreted to include capacity to earn as a component of the alimony calculation. “To read such a provision into the parties' separation agreement would be akin to creating a new agreement altogether,” the court concluded, as it reversed and remanded for a new hearing on the defendant's motion for modification of alimony and child support.

NEW JERSEY

No Default When Parent Represented by Attorney at Hearing

New Jersey's Appellate division has ruled in a case of a no-show defendant at a parental-rights termination hearing that if the missing parent is represented by counsel, “unless warranted by defendant's failure to comply with a prior order and the potential for default was adequately noticed, a judge is not authorized to enter a default.” The case, Division of Youth and Family Services v. P.W.R., A-1060-08, involved a 16-year-old girl whom the Department of Youth and Family Services (DYFS) claimed was abused or neglected due to excessive corporal punishment at her father's and stepmother's home. The stepmother attended some of the hearings on the issue but missed two of them. She did telephone the judge's office to explain that she could not attend those two hearings because of illness. Counsel was, however, there to represent the child's father and stepmother. On Feb. 29, 2008, Union County Superior Court Judge Jo-Anne Spatola entered an order that said, “The failure of the defendant(s) to comply with any provision of this order or the defendant's continuing failure to appear may result in default being entered by the court and may result in the commencement of a termination of parental rights proceeding. A termination of parental rights would free the child(ren) for adoption.” In June 2008, after the second failure of the defendants to appear, Spatola made good on her warning and entered a default judgment, which the step-mother appealed.

DYFS argued that Spatola was allowed to proceed under N.J.S.A. 9:6-8.42, which says proceedings such as those below could continue when the children are represented by a Law Guardian. This argument did not persuade the appellate court, which noted that “proceeding with fact-finding” was quite a different thing from entering a default judgment, particularly when the outcome of the proceeding concerns the very important issue for parents, children and other concerned parties as to who will take custody of the children. “Because a party represented by counsel may defend at trial without being physically present, default may not be entered when a party is not present at trial absent evidence that the party has not otherwise defended as required by rule or court order,” concluded the court.

CONNECTICUT

Court Reads Too Much into Separation Agreement

In Danehy v. Danehy , 118 Conn.App. 29 (11/17/09), the Appellate Court of Connecticut overturned an order denying an ex-husband's motion for modification of alimony, because the lower court impermissibly altered the terms of the couple's separation agreement to include a requirement that the husband prove diminished earnings capacity if he wanted the alimony decreased. Pursuant to the parties' separation agreement, the defendant ex-husband was to pay the plaintiff a set amount, which was “modifiable as to amount.” The separation agreement explicitly stated that “[t]hese orders are based on a presumed gross income to the [defendant] of $70,000 per year and a presumed gross income to the [plaintiff] of $25,000 per year. The [plaintiff] shall have a safe harbor of earnings to $25,000 per year which shall not constitute a substantial change in circumstances for purposes of a modification.” In the modification proceedings, the ex-husband presented evidence that his income was no longer $70,000, but $41,000. The ex-wife showed that she was earning less than $25,000. The lower court considered this information and issued a written decision stating, “The stipulation for the dissolution presumed an earnings capacity for the defendant of $70,000 and a 'safe harbor' for the plaintiff of $25,000 per year. [The] plaintiff is not earning $25,000 [per year] at the present time and no evidence was presented to indicate an inability of an earnings capacity of $70,000. Motion for modification denied.”

On appeal, the Appellate Court noted that courts are not permitted to “disregard the words used by the parties or revise, add to, or create a new agreement.” Collins v. Sears, Roebuck & Co. , 164 Conn. 369 (1973). In Danehy, the plain language of the separation agreement stated that the alimony was based on the presumed gross income of the parties and that the amount was modifiable. Nothing was said about the parties' earning capacities. Therefore, the language of the agreement could not be interpreted to include capacity to earn as a component of the alimony calculation. “To read such a provision into the parties' separation agreement would be akin to creating a new agreement altogether,” the court concluded, as it reversed and remanded for a new hearing on the defendant's motion for modification of alimony and child support.

NEW JERSEY

No Default When Parent Represented by Attorney at Hearing

New Jersey's Appellate division has ruled in a case of a no-show defendant at a parental-rights termination hearing that if the missing parent is represented by counsel, “unless warranted by defendant's failure to comply with a prior order and the potential for default was adequately noticed, a judge is not authorized to enter a default.” The case, Division of Youth and Family Services v. P.W.R., A-1060-08, involved a 16-year-old girl whom the Department of Youth and Family Services (DYFS) claimed was abused or neglected due to excessive corporal punishment at her father's and stepmother's home. The stepmother attended some of the hearings on the issue but missed two of them. She did telephone the judge's office to explain that she could not attend those two hearings because of illness. Counsel was, however, there to represent the child's father and stepmother. On Feb. 29, 2008, Union County Superior Court Judge Jo-Anne Spatola entered an order that said, “The failure of the defendant(s) to comply with any provision of this order or the defendant's continuing failure to appear may result in default being entered by the court and may result in the commencement of a termination of parental rights proceeding. A termination of parental rights would free the child(ren) for adoption.” In June 2008, after the second failure of the defendants to appear, Spatola made good on her warning and entered a default judgment, which the step-mother appealed.

DYFS argued that Spatola was allowed to proceed under N.J.S.A. 9:6-8.42, which says proceedings such as those below could continue when the children are represented by a Law Guardian. This argument did not persuade the appellate court, which noted that “proceeding with fact-finding” was quite a different thing from entering a default judgment, particularly when the outcome of the proceeding concerns the very important issue for parents, children and other concerned parties as to who will take custody of the children. “Because a party represented by counsel may defend at trial without being physically present, default may not be entered when a party is not present at trial absent evidence that the party has not otherwise defended as required by rule or court order,” concluded the court.