Paul Kostro’s Law Blog

Law Lessons from SCHEINER v. EISENBERG, Appellate Division, A-3938-05T1 [LINK], June 12, 2007, not approved for publication:

[C]hild support, as that policy is primarily implemented through the Child Support Guidelines, does not substantially differentiate between children born of first or ensuing relationships when modification is an issue . . . . The current theory, as practiced by our courts, is direct and sound: A child’s right to be adequately fed, clothed, housed and educated should not primarily depend on the date of his or her birth, the family in which he or she is born. Equality before the court, the child’s right to be nurtured, should never be subject to such a presumptive “time or status” litmus test.

Since our Child Support Guidelines do not specifically provide a pat formula where intact second families seek modification of first family orders, how to implement a fair division of a common parent’s income can be a nettlesome task not amenable to mechanical, mathematical certainty or equation. (See Appendix IX-B, IX-C and IX-E, ¶ (c)(4), Pressler Current N.J. Court Rules, pp. 1676-79, 1682.) More often than not . . . second family petitions can raise tension levels severely, and can further polarize the parties: Family one sees such applications as an unfair erosion of their standard of living directly caused by the obligor’s unwillingness to recognize that if he cannot support the children of the first relationship, he should have refrained from having more; and family two, primarily the new spouse . . . perceives such strident opposition as nothing more than a “cake for you, crumbs for me” response, a contest fought for her and for her child’s survival . . . . For first and second family children do, in fact, frequently suffer direct economic, social consequence when there is too little foresight and insufficient income to meet the needs of both.

Every request for modification of a child support order must demonstrate that changed circumstances exist. Lepis v. Lepis, 83 N.J. 139, 416 A.2d 45 (1980). A newly-born child, within a first family relationship or beyond it, is a person not contemplated at the time of the original order for whom provision, and accommodation must be made. Appendix IX-A(5), Pressler Current N.J. Court Rules, p. 1674.

[Martinez v. Martinez, 282 N.J. Super. 332, 340-42 (Ch. Div. 1995).]

Thus, where “circumstances have changed due to subsequent biological children” the trial court is obligated to undertake an analysis under the Child Support Guidelines to determine whether there are changed circumstances warranting modification of plaintiff’s support obligations, and if so, determine the appropriate level of support for the children of the first marriage as well as the second.

If you are interested in Mediation; or have issues relating to Child Support, Divorce, or Domestic Violence, please call me to schedule an appointment — I can be reached by telephone at (908)486-2200; or by Email. You may also want to check-out my Guide to “Family Law” in New Jersey.

Law Lessons from HOPKINS v. HOPKINS, Appellate Division, A-4607-05T5 [LINK], June 11, 2007, not approved for publication:  A judge is required to employ a three-step process to effectuate the equitable distribution of marital property. A judge must identify the marital property, value it, and then allocate the marital property in an equitable fashion. Rothman v. Rothman, 65 N.J. 219, 232 (1974); N.J.S.A. 2A:34-23.1. The analysis includes marital debts. N.J.S.A. 2A:34-23.1(m). The burden of establishing immunity from equitable distribution of a particular asset rests with the party who seeks to exclude an asset. Painter v. Painter, 65 N.J. 196, 214 (1974). See also Dotsko v. Dotsko, 244 N.J. Super. 668, 676 (App. Div. 1990) (where husband sought to exclude a gift from a parent, he had the burden to establish that this property acquired during the marriage should be exempt from equitable distribution). Ultimately, however, the fashioning of an appropriate allocation of marital property is vested in the discretion of the trial judge. Savoie v. Savoie, 245 N.J. Super. 1, 5 (App. Div. 1990). Nevertheless, the findings of fact must be supported by substantial credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). If so, those findings are binding. Ibid.

If you are interested in Mediation; or have issues relating to Child Support, Divorce, or Domestic Violence, please call me to schedule an appointment — I can be reached by telephone at (908)486-2200; or by Email. You may also want to check-out my Guide to “Family Law” in New Jersey.

MacKINNON v. MacKINNON, New Jersey Supreme Court, A-114 [LINK], June 11, 2007: Because the factors cited in Baures v. Lewis, 167 N.J. 91 (2001) (which established the standard for removal of minor children of divorce) are sufficiently flexible to accommodate the intricacies of international removal; and because that standard promotes the best interests of the child, the Baures standard applies to international as well as the interstate removal.

If you are interested in Mediation; or have issues relating to Child Support, Divorce, or Domestic Violence, please call me to schedule an appointment — I can be reached by telephone at (908)486-2200; or by Email. You may also want to check-out my Guide to “Family Law” in New Jersey.

According to court records obtained by the Associated Press, Maya and Michael Polsky married in the Ukraine in 1975 and came to the United States in 1976 with “only four suitcases and $500 in cash.” The couple reportedly moved to Chicago in 1980 where Mr. Polsky became successful in the energy business; and Mrs. Polsky was a 55 year old homemaker and the owner of art gallery. After sighting irreconcilable differences in 2003 Maya Polsky filed for divorce from Michael Polsky.  In October of 2006 a Chicago Judge said that Mrs. Polsky was entitled to at least half of the couples assets.

Maya’s lawyers argued that throughout their 31-year marriage, she had been Michael’s trusted confidante and stood by him through good and bad times, and therefore should be considered a full partner in his success. It was argued that although Maya primary responsibilities were homemaker and mother, she had supported her husband throughout the years, providing advice, empathy and comfort which contributed to their success. [SOURCE]

If you are interested in Mediation; or have issues relating to Child Support, Divorce, or Domestic Violence, please call me to schedule an appointment — I can be reached by telephone at (908)486-2200; or by Email. You may also want to check-out my Guide to “Family Law” in New Jersey.

Law Lessons from STATE v. RILEY, Appellate Division, A-4387-05T3 [LINK], June 7, 2007, not approved for publication:

N.J.S.A. 2C:29-9b, provides in pertinent part: “Except as provided below, a person is guilty of a crime of the fourth degree if that person purposely or knowingly violates any provision in an order entered under the provisions of the [Prevention of Domestic Violence Act] . . . when the conduct which constitutes the violation could also constitute a crime or a disorderly persons offense. In all other cases a person is guilty of a disorderly persons offense if that person knowingly violates an order entered under the provisions of this act or an order entered under the provisions of a substantially similar statute under the laws of another state or the United States.”

The elements of a fourth-degree offense, include that: (1) a restraining order was issued under the Prevention of Domestic Violence Act; (2) defendant violated the order; (3) defendant acted purposely or knowingly; and (4) the conduct that constituted the violation also constituted a crime or disorderly persons offense. See State v. Chenique-Puey, 145 N.J. 334, 341-42 (1996); State v. Krupinski, 321 N.J. Super. 34, 43 (App. Div. 1999). A simple knowing violation of a PDVA order, without more, is a disorderly persons offense.

If you are interested in Mediation; or have issues relating to Child Support, Divorce, or Domestic Violence, please call me to schedule an appointment — I can be reached by telephone at (908)486-2200; or by Email. You may also want to check-out my Guide to “Family Law” in New Jersey.

Law Lessons from PARCEL v. PARCEL, Appellate Division, A-5087-05T1 [LINK], June 1, 2007, not approved for publication:

The preference of a child in a custody dispute is only one of many considerations to be taken into account by the trial judge in the “best interests” formulation. N.J.S.A. 9:2-4c; Palermo v. Palermo, 164 N.J. Super. 492, 498 (App. Div. 1978); see also Beck v. Beck, 86 N.J. 480, 497 (1981); Laverne v. Laverne, 148 N.J. Super. 267, 271-72 (App. Div.), certif. denied, 75 N.J. 28 (1977). It is neither controlling nor conclusive in the determination. Callen v. Gill, 7 N.J. 312, 319 (1951); Sheehan v. Sheehan, 38 N.J. Super. 120, 126 (App. Div. 1955). Indeed, a trial judge is not bound by a child’s preference of one parent over another as the judge is only required to give “due weight to the child’s preference.” W.W. v. I.M., 231 N.J. Super. 495, 511 (App. Div. 1989) (quoting Laverne, 148 N.J. Super. at 271), appeal dism’d, 121 N.J. 630 (1990). The Legislature has expressly declared that the State’s public policy is: “to assure minor children of frequent and continuing contact with both parents after the parties have separated or dissolved their marriage and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy.”  [N.J.S.A. 9:2-4.]

If you are interested in Mediation; or have issues relating to Child Support, Divorce, or Domestic Violence, please call me to schedule an appointment — I can be reached by telephone at (908)486-2200; or by Email. You may also want to check-out my Guide to “Family Law” in New Jersey.

Your birth certificate states that your first name is Pawel; however, all your other legal documents state that your first name is Paul — now, thanks to the terrorists, the N.J. Motor Vehicle Commission will not renew your Driver License; what to do?  Probably, the answer is to change your name, legally — for more information, go HERE.

Law Lessons from EIBLING v. EIBLING, Appellate Division, A-5496-05T5 [LINK], May 31, 2007, not approved for publication:

Emancipation turns on whether a child has moved “beyond the sphere of influence and responsibility exercised by a parent and [has] obtain[ed] an independent status of his or her own.” Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997). In Newburgh v. Arrigo, the Court observed that emancipation “can occur upon the child’s marriage, induction into military service, by court order based on the child’s best interests, or by attainment of an appropriate age.” 88 N.J. at 543. With regard to the child’s age, the Newburgh Court held that a rebuttable presumption against emancipation arises prior to a child’s attainment of the age of majority, and that attainment of that age “establishes prima facie, but not conclusive, proof of emancipation.” Ibid.

However, the absence of a loving relationship between the child and the paying parent has no bearing on the paying parent’s obligation to pay weekly child support.

If you are interested in Mediation; or have issues relating to Child Support, Divorce, or Domestic Violence, please call me to schedule an appointment — I can be reached by telephone at (908)486-2200; or by Email. You may also want to check-out my Guide to “Family Law” in New Jersey.