NJ & CT News

NEW JERSEY

Post-Divorce Efforts Improve Pension Benefits, May Affect Alimony

The Appellate Division has remanded to the Family Part a case in which a man moved to terminate his alimony obligation, but was denied. The parties in Krupinski v. Krupinski, DDS No. 20-2-5120, had been married for 20 years when they divorced in 1988, at which time the husband was a teacher making just under $50,000 per year. The wife was awarded $100 per week in alimony, plus a one-third share of her husband's future pension. The husband thereafter continued his education and was promoted, so that when he retired in 2010, his pension benefits were based on an annual salary of $132,210. The wife's share was $1,871 per month. This being the case, the husband sought termination of his alimony obligation. His motion was denied on the basis that, although the husband's retirement constituted a “changed circumstance,” he was still able to meet the alimony obligation.

On the husband's appeal, the appellate panel found that the motion judge failed to adequately address whether the wife's financial status had improved to such an extent upon receiving her share of the pension that she no longer needed alimony to maintain her former “frugal, modest” marital lifestyle. The court determined that the motion judge mistakenly exercised his discretion in denying the husband's motion without affording the parties discovery and determining whether an evidentiary hearing was warranted. Specifically, the panel said the court on remand must determine what part of the monthly pension benefits are attributable to the husband's post-dissolution efforts, and thus may be considered “income” to the wife for the purposes of determining alimony outside the bar imposed by N.J.S.A. 2A:34-23(b) (“When a share of a retirement benefit is treated as an asset for purposes of equitable distribution, the court shall not consider income generated thereafter by that share for purposes of determining alimony.”).

CONNECTICUT

Definition of 'Professional Misconduct'

In a case in which an attorney was charged by the Disciplinary Counsel with having an intimate, though non-sexual, relationship with a client that hindered his representation of her, Connecticut's Appellate Court has determined that Rule 8.4(4) of the Rules of Professional Conduct, prohibiting conduct prejudicial to the administration of justice, is neither vague nor overbroad because case law and “the lore of the profession,” as explained by the Fifth Circuit in the 1988 case of Howell v. State Bar of Texas regarding a similar rule, provide sufficient guidance to attorneys in determining proper conduct.

In Chief Disciplinary Counsel v. Zelotes, Doc. No.: AC 35867, the Disciplinary Counsel alleged misconduct by Attorney Zenas Zelotes. The trial court concluded that Zelotes violated rules 1.7(a)(2) and 8.4(4) of the Rules of Professional Conduct when he gave legal divorce advice to a woman who was part of a married couple with whom he and his girlfriend socialized. Zelotes then began dating the married woman (who was already represented in the divorce matter by other counsel), gave her “the conviction and courage that she needed to move forward in the divorce,” and told her that if he represented her he would take her under his wing and save her from the higher costs her own attorney would charge her. He then filed an appearance in the woman's divorce action.

The appeals court agreed with the trial court that Zelotes violated rule 1.7(a)(2), based on clear and convincing evidence that there was a significant risk that Zelotes' representation of the divorcing woman would be materially limited by his personal interests. The court also agreed with the trial court's finding that Zelotes' conduct violated rule 8.4(4) and that he was not denied due process of law for lack of fair notice that his conduct could be considered professional misconduct. Although the plain text of rule 8.4(4) might lack detail and precision, said the appellate court, its meaning was not unconstitutionally vague, but clear from the rules, official comments and interpreting case law.

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NEW JERSEY

Post-Divorce Efforts Improve Pension Benefits, May Affect Alimony

The Appellate Division has remanded to the Family Part a case in which a man moved to terminate his alimony obligation, but was denied. The parties in Krupinski v. Krupinski, DDS No. 20-2-5120, had been married for 20 years when they divorced in 1988, at which time the husband was a teacher making just under $50,000 per year. The wife was awarded $100 per week in alimony, plus a one-third share of her husband's future pension. The husband thereafter continued his education and was promoted, so that when he retired in 2010, his pension benefits were based on an annual salary of $132,210. The wife's share was $1,871 per month. This being the case, the husband sought termination of his alimony obligation. His motion was denied on the basis that, although the husband's retirement constituted a “changed circumstance,” he was still able to meet the alimony obligation.

On the husband's appeal, the appellate panel found that the motion judge failed to adequately address whether the wife's financial status had improved to such an extent upon receiving her share of the pension that she no longer needed alimony to maintain her former “frugal, modest” marital lifestyle. The court determined that the motion judge mistakenly exercised his discretion in denying the husband's motion without affording the parties discovery and determining whether an evidentiary hearing was warranted. Specifically, the panel said the court on remand must determine what part of the monthly pension benefits are attributable to the husband's post-dissolution efforts, and thus may be considered “income” to the wife for the purposes of determining alimony outside the bar imposed by N.J.S.A. 2A:34-23(b) (“When a share of a retirement benefit is treated as an asset for purposes of equitable distribution, the court shall not consider income generated thereafter by that share for purposes of determining alimony.”).

CONNECTICUT

Definition of 'Professional Misconduct'

In a case in which an attorney was charged by the Disciplinary Counsel with having an intimate, though non-sexual, relationship with a client that hindered his representation of her, Connecticut's Appellate Court has determined that Rule 8.4(4) of the Rules of Professional Conduct, prohibiting conduct prejudicial to the administration of justice, is neither vague nor overbroad because case law and “the lore of the profession,” as explained by the Fifth Circuit in the 1988 case of Howell v. State Bar of Texas regarding a similar rule, provide sufficient guidance to attorneys in determining proper conduct.

In Chief Disciplinary Counsel v. Zelotes, Doc. No.: AC 35867, the Disciplinary Counsel alleged misconduct by Attorney Zenas Zelotes. The trial court concluded that Zelotes violated rules 1.7(a)(2) and 8.4(4) of the Rules of Professional Conduct when he gave legal divorce advice to a woman who was part of a married couple with whom he and his girlfriend socialized. Zelotes then began dating the married woman (who was already represented in the divorce matter by other counsel), gave her “the conviction and courage that she needed to move forward in the divorce,” and told her that if he represented her he would take her under his wing and save her from the higher costs her own attorney would charge her. He then filed an appearance in the woman's divorce action.

The appeals court agreed with the trial court that Zelotes violated rule 1.7(a)(2), based on clear and convincing evidence that there was a significant risk that Zelotes' representation of the divorcing woman would be materially limited by his personal interests. The court also agreed with the trial court's finding that Zelotes' conduct violated rule 8.4(4) and that he was not denied due process of law for lack of fair notice that his conduct could be considered professional misconduct. Although the plain text of rule 8.4(4) might lack detail and precision, said the appellate court, its meaning was not unconstitutionally vague, but clear from the rules, official comments and interpreting case law.

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