NJ & CT News

Proposed Legislation Would Help Payers with Reduced Resources

Wanting to make a common law precept more concrete in this unsettled economy, New Jersey's Assembly Judiciary Committee recently voted in favor of legislation that would give parties the right to seek adjustment of alimony and child support obligations due to changed employment circumstances. The committee recommended passage of A-685 by a 7-0 vote on Feb. 6. In its current form, it would grant the right to seek reduction in alimony and child support payments only after six months have passed since a person became disabled or involuntarily unemployed. One committee member, Michael Patrick Carroll, R-Morris, suggested the desired effect could be accomplished by simply codifying the State Supreme Court's ruling in the precedent-setting case of Lepis v. Lepis, 83 NJ 139 (1980), which held that judges could use their discretion to adjust alimony and child support obligations due to changed financial circumstances. The bill's sponsor, Assemblyman Sean Kean, R-Monmouth, noted, however, that although “Lepis is out there ' many courts just aren't following it.”

Appellate Panel Counters Recent Child-Name-Change Decision

Disagreeing with the appellate panel that decided Emma v. Evans, A-2303-10, New Jersey's Appellate Division has determined that a primary caregiver parent who wishes to change a child's name enjoys a strong presumption that that name change is in the child's best interest, whether the child was born to married or single parents. Holst-Knudsen v. Mikisch, A-3596-10T1. Therefore, the burden is on the non-custodial parent to prove that the change is not in the child's best interest. In announcing its decision, the court specifically cited its disagreement with the Jan. 20 opinion of another New Jersey appellate panel, which wrote in Emma v. Evans, “The presumption [that the primary custodian may choose a child's surname] applies less logically or fairly in cases where the parents entered into a committed relationship of significant duration, where the children were originally named by a marital partnership ' rather than one parent ' undoubtedly with the intent that the designation remain permanent.”

CONNECTICUT

Prenup Agreement's Unambiguous Sunset Clause Enforced Despite Pending Divorce

Prior to the parties' July 14, 2000 marriage, they entered into a prenuptial agreement containing a sunset provision that stated: “This Agreement shall become null and void and of no further force and effect upon the seventh (7th) anniversary of the parties' marriage.” The seventh anniversary of the parties' marriage was July 14, 2007. On March 1, 2007, the plaintiff husband commenced this divorce action. The proceedings progressed throughout the spring and summer of 2007, with the wife at some point, in response to a request for admission, acknowledging the existence of the prenuptial agreement, but reserving her right to challenge it. The court ultimately determined that the sunset provision of the prenuptial agreement was valid and rendered the whole agreement unenforceable as of July 14, 2007.

On appeal, the husband argued that the intent of the agreement was that it should expire only if the parties were still happily married and had actually celebrated their seventh wedding anniversary; since the divorce action was filed several months before that date, the other terms of the agreement should remain in force, as though the marriage had ended before the seventh anniversary's arrival. The appellate court disagreed, and affirmed the lower court's ruling, stating: “We cannot and will not import ambiguity into the parties' choice of using their seventh wedding anniversary as the end date for the agreement. If, as the plaintiff argues, the parties' use of the words “upon the seventh (7th) anniversary of the parties' marriage” was meant to convey their intent that the sunset provision should only be effective if the parties were in fact still happily married and actually celebrating their seventh wedding anniversary, the parties could have chosen language that indicated such an intent. For example, they could have added that the agreement would become unenforceable on the parties' seventh wedding anniversary provided that the parties remained married and living together and there was no pending separation or divorce action.”

NEW JERSEY

Equitable Estoppel Applies Only if Child Will Be
Financially Harmed

New Jersey's Supreme Court recently determined that a man who was deceived concerning his supposed daughter's parentage is not estopped from seeking reimbursement for the costs of raising her because the child's well-being and current means of support would not be impaired by the outcome of the suit. The plaintiff had supported and raised the girl for 15 years because he thought she was his own. In fact, she was the product of an affair between the plaintiff's wife of many years and his business partner. The plaintiff eventually became suspicious about the girl's true parentage for a number of reasons, including the facts that: 1) the biological father accompanied the married couple when they brought the baby home from the hospital; 2) the defendant attended the child's significant events, such as graduations and music recitals, but did not attend those of her older sister; and 3) the child did not look like the plaintiff or like her older sister. DNA testing, conducted during the child's teen years, confirmed his suspicions. The plaintiff and his wife then divorced. Their settlement did not include a child support provision for the younger daughter because, as the wife told the court, the biological father had acknowledged his daughter and intended to support her from then onward. The following year, the plaintiff sued the defendant biological father, seeking damages on claims of nondisclosure, misrepresentation and unjust enrichment. The trial court, relying on Connecticut case law that emphasized the child's right to support over the putative father's right to be made financially whole, concluded that although the defendant clearly was the child's biological father, the plaintiff was equitably estopped from denying his paternity, and so could not seek reimbursement from the defendant. The Supreme Court reversed, agreeing with the plaintiff that a bar to the suit based on equitable estoppel could be imposed only if a financial, as opposed to a purely emotional, detriment to the child could be shown. That was not the case here, as there was no showing that the defendant would be unable to continue to provide for the child should the plaintiff prevail against him.

Proposed Legislation Would Help Payers with Reduced Resources

Wanting to make a common law precept more concrete in this unsettled economy, New Jersey's Assembly Judiciary Committee recently voted in favor of legislation that would give parties the right to seek adjustment of alimony and child support obligations due to changed employment circumstances. The committee recommended passage of A-685 by a 7-0 vote on Feb. 6. In its current form, it would grant the right to seek reduction in alimony and child support payments only after six months have passed since a person became disabled or involuntarily unemployed. One committee member, Michael Patrick Carroll, R-Morris, suggested the desired effect could be accomplished by simply codifying the State Supreme Court's ruling in the precedent-setting case of Lepis v. Lepis , 83 NJ 139 (1980), which held that judges could use their discretion to adjust alimony and child support obligations due to changed financial circumstances. The bill's sponsor, Assemblyman Sean Kean, R-Monmouth, noted, however, that although “Lepis is out there ' many courts just aren't following it.”

Appellate Panel Counters Recent Child-Name-Change Decision

Disagreeing with the appellate panel that decided Emma v. Evans, A-2303-10, New Jersey's Appellate Division has determined that a primary caregiver parent who wishes to change a child's name enjoys a strong presumption that that name change is in the child's best interest, whether the child was born to married or single parents. Holst-Knudsen v. Mikisch, A-3596-10T1. Therefore, the burden is on the non-custodial parent to prove that the change is not in the child's best interest. In announcing its decision, the court specifically cited its disagreement with the Jan. 20 opinion of another New Jersey appellate panel, which wrote in Emma v. Evans, “The presumption [that the primary custodian may choose a child's surname] applies less logically or fairly in cases where the parents entered into a committed relationship of significant duration, where the children were originally named by a marital partnership ' rather than one parent ' undoubtedly with the intent that the designation remain permanent.”

CONNECTICUT

Prenup Agreement's Unambiguous Sunset Clause Enforced Despite Pending Divorce

Prior to the parties' July 14, 2000 marriage, they entered into a prenuptial agreement containing a sunset provision that stated: “This Agreement shall become null and void and of no further force and effect upon the seventh (7th) anniversary of the parties' marriage.” The seventh anniversary of the parties' marriage was July 14, 2007. On March 1, 2007, the plaintiff husband commenced this divorce action. The proceedings progressed throughout the spring and summer of 2007, with the wife at some point, in response to a request for admission, acknowledging the existence of the prenuptial agreement, but reserving her right to challenge it. The court ultimately determined that the sunset provision of the prenuptial agreement was valid and rendered the whole agreement unenforceable as of July 14, 2007.

On appeal, the husband argued that the intent of the agreement was that it should expire only if the parties were still happily married and had actually celebrated their seventh wedding anniversary; since the divorce action was filed several months before that date, the other terms of the agreement should remain in force, as though the marriage had ended before the seventh anniversary's arrival. The appellate court disagreed, and affirmed the lower court's ruling, stating: “We cannot and will not import ambiguity into the parties' choice of using their seventh wedding anniversary as the end date for the agreement. If, as the plaintiff argues, the parties' use of the words “upon the seventh (7th) anniversary of the parties' marriage” was meant to convey their intent that the sunset provision should only be effective if the parties were in fact still happily married and actually celebrating their seventh wedding anniversary, the parties could have chosen language that indicated such an intent. For example, they could have added that the agreement would become unenforceable on the parties' seventh wedding anniversary provided that the parties remained married and living together and there was no pending separation or divorce action.”