Although the PDVA does not define “household member,” several cases had addressed the meaning of this term. In South v. North, 304 N.J. Super. 104, 116 (Ch. Div. 1997), the father of the plaintiff’s grandson was considered a household member. The plaintiff lived with her adult daughter and grandson; the father of the child and the daughter were engaged. Id. at 107. In Storch v. Sauerhoff, 334 N.J. Super. 226, 233, 235 (Ch. Div. 2000), a stepchild and stepfather, who lived on the same block were considered household members, even though they had not resided in the same house for nineteen years. In Hamilton v. Ali, 350 N.J. Super. 479, 480 (Ch. Div. 2001), college students living in a nine-person dormitory suite were considered household members. The court noted that sharing four bedrooms, a bathroom, and a common area constituted a “family-like setting.” Id. at 486.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Who is a household member originally appeared on NJ Family Issues on February 2, 2012.

A trial judge may grant prejudgment interest at his or her discretion. Cnty. of Essex v. First Union Nat’l Bank, 186 N.J. 46, 61 (2006); see also Meshinsky v. Nicholas Yacht Sales, Inc., 110 N.J. 464, 478 (l988). An appellate court should not interfere with such award unless the award represents a manifest denial of justice. Cnty. of Essex, supra, 186 N.J. at 61. Prejudgment interest in contract actions are not subject to the mandates of Rule 4:42-ll, which apply only to tort actions, but rather are “assessed on a discretionary basis as the result of the application of equitable principles.” DialAmerica Mktg., Inc. v. KeySpan Energy Corp., 374 N.J. Super. 502, 508 (App. Div.), certif. denied, 184 N.J. 212 (2005).

NOTE: Adwokat / Prawnik Pawel Kostro mowi po polsku.

Prejudgment interest in contract actions are assessed on a discretionary basis as the result of the application of equitable principles originally appeared on NJ Family Issues on February 2, 2012.

A spouse cannot convert or diminish marital assets so as to diminish the other spouse’s distributable share. Vander Weert v. Vander Weert, 304 N.J. Super. 339, 349 (App. Div. 1997).

“Public policy concerns require divorcing spouses to deal fairly with each other.” Tannen v. Tannen, 416 N.J. Super. 248, 262 (App. Div. 2010), aff’d, 208 N.J. 409 (2011).

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

Public policy concerns require divorcing spouses to deal fairly with each other originally appeared on NJ Family Issues on February 2, 2012.

The mechanisms for awarding attorneys’ fees, including contingency enhancements, adopted in Rendine v. Pantzer, 141 N.J. 292 (1995) remain in full force and effect as the governing principles for awards made pursuant to New Jersey fee-shifting statutes.

Statutory fee-shifting provisions address the problem of unequal access to the courts; provide the individuals, whose rights are being protected by the statutes, with the resources to enforce those rights in court; operate to encourage adequate representation which is essential to ensuring that those laws will be enforced; and promote respect for the underlying law.

Pursuant to Rendine, calculating an award of attorneys’ fees pursuant to state statutory fee-shifting provisions begins with determining the lodestar. The lodestar is derived by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate.

Rendine, and its companion case Szczepanski v. Newcomb Medical Ctr., 141 N.J. 346 (1995), included specific guidance that informs both aspects of the lodestar equation. In addition, under Rendine, after the lodestar has been established, the trial court may increase the fee to reflect the risk of nonpayment in all cases in which the attorney’s compensation entirely or substantially is contingent on a successful outcome. The Court’s authorization of contingency enhancements arose from its conclusion that a fee award cannot be “reasonable” unless the lodestar is adjusted to reflect the actual risk that the attorney would not receive payment if the suit did not succeed.

See related Blog Post: Contingency Fee Enhancements in NJ, posted by Matthew Stoloff, Esq.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Calculating an award of attorneys’ fees pursuant to state statutory fee-shifting provisions begins with determining the lodestar; the lodestar is derived by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate originally appeared on NJ Family Issues on January 31, 2012.

Under the Prevention of Domestic Violence Act, “acts claimed by a plaintiff to be domestic violence must be evaluated in light of the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment and physical abuse and in light of whether immediate danger to the person or property is present. N.J.S.A. 2C:25-29a(1) and (2).” Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995). Therefore, the commission of one of the predicate acts of domestic violence set forth in N.J.S.A. 2C:25-19(a) does not “automatically mandate[] the issuance of a domestic violence restraining order.” Silver v. Silver, 387 N.J. Super. 112, 123 (App. Div. 2006) (quoting Kamen v. Eagen, 322 N.J. Super. 222, 227 (App. Div. 1999)). Rather, the court must make a discretionary determination based on the predicate act of domestic violence, any prior history of domestic violence, and any other relevant circumstances, as to “whether a domestic violence restraining order is necessary to protect plaintiff from immediate danger or further acts of domestic violence.” Id. at 128.

Appellate review of such a determination is limited to deciding whether it constituted an abuse of discretion. Cesare v. Cesare, 154 N.J. 394, 416 (1998).

NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

The court must make a discretionary determination based on the predicate act of domestic violence, any prior history of domestic violence, and any other relevant circumstances, as to “whether a domestic violence restraining order is necessary to protect plaintiff from immediate danger or further acts of domestic violence originally appeared on NJ Family Issues on January 30, 2012.

New Jersey has a strong public policy favoring the enforcement of property settlement agreements. Matrimonial settlements are “‘entitled to considerable weight with respect to their validity and enforceability’ in equity, provided they are fair and just” because they are “‘essentially consensual and voluntary in character.’” Dolce v. Dolce, 383 N.J. Super. 11, 20 (App. Div. 2006) (quoting Petersen v. Petersen, 85 N.J. 638, 642 (1981)); see also Lepis v. Lepis, 83 N.J. 139, 153 (1980). Such agreements “are generally favored by the courts as a peaceful means of terminating marital strife and discord so long as they are not against public policy.” Konzelman v. Konzelman, 158 N.J. 185, 194 (1999). Consequently, the court accords “particular leniency to agreements made in the domestic arena, and likewise allow[] judges greater discretion when interpreting such agreements.” Guglielmo v. Guglielmo, 253 N.J. Super. 531, 542 (App. Div. 1992).

Mediation is a recognized and appropriate process for the voluntary resolution of family disputes. See Lerner v. Laufer, 359 N.J. Super. 210, 216 (App. Div.), certif. denied, 177 N.J. 223 (2003); see also R. 1:40-5. Additionally, our Supreme Court has approved voluntary agreements between parties to use alternate methods to settle marital issues. Fawzy v. Fawzy, 199 N.J. 456, 477 (2009); Faherty v. Faherty, 97 N.J. 99, 107 (1984).

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

The court accords particular leniency to agreements made in the domestic arena, and likewise allows judges greater discretion when interpreting such agreements originally appeared on NJ Family Issues on January 30, 2012.

N.J.S.A. 2C:33-4(a) provides, in pertinent part:

[a] person commits a petty disorderly persons offense if, with purpose to harass another, he
a. Makes or causes to be made, a communication or communications anonymously or at extremely inconvenient hours or in offensively coarse language, or any other manner likely to cause annoyance or alarm[.]

The statute requires proof of a “purpose to harass”.

Our Supreme Court recently stated that a trial court must exercise care in distinguishing between ordinary disputes and irritations common in a domestic relationship and those actions that cross the line into domestic violence. J.D. v. M.D.F., 207 N.J. 458, 475-76 (2011). In that case, the defendant passed the plaintiff’s home in the early morning with a purpose to document her cohabitation with another man, which the defendant intended to support an effort to secure custody of the parties’ children. The Court concluded that the defendant’s actions did not constitute harassment.

Similarly, in L.M.F. v. J.A.F., 421 N.J. Super. 523 (App. Div. 2011), the court reversed a finding of harassment when the trial court failed to find that the defendant’s former spouse had a purpose to harass. Id. at 534-36. He repeatedly sent text messages to his former wife in order to obtain information about their daughter’s welfare and academic performance. Ibid.

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

A trial court must exercise care in distinguishing between ordinary disputes and irritations common in a domestic relationship and those actions that cross the line into domestic violence originally appeared on NJ Family Issues on January 30, 2012.

Absent a valid excuse, a person who does not comply with a subpoena to testify may be held in contempt. The exercise of a valid testimonial privilege constitutes an adequate excuse. Privileges protect interests that have been determined to be of sufficient importance to justify some sacrifice of sources of facts needed in the administration of justice. Pursuant to N.J.R.E. 530, waiver of a privilege occurs if the holder enters into a contract not to claim the privilege or discloses part of the privileged matter or consents to disclosure. Courts also recognize that a privilege may be waived implicitly by placing a confidential communication in issue in the litigation.

The rules of evidence recognize two marital privileges that protect the tranquility and sanctity of marriage. The marital-communications privilege, N.J.R.E. 509, protects confidential communications made during a marriage. It is not at issue in this case. The spousal privilege, N.J.R.E. 501(2), provides that the spouse or civil union partner of the accused in a criminal action shall not testify in such action, except to provide the fact of the marriage or civil union, “unless (a) such spouse or partner consents, or (b) the accused is charged with an offense against the spouse or partner, a child of the accused or of the spouse or partner, or a child to whom the accused or the spouse or partner stands in the place of a parent, or (c) such spouse or partner is the complainant.” Unless one of the exceptions applies, all testimony is barred except that bearing on the fact of the marriage.

In In re Kozlov, 79 N.J. 232 (1979), the Court required that, aside from the express exceptions contained in the rules, a party seeking to pierce a privilege must advance a legitimate need for the evidence, show that it is relevant and material to the issue before the court, and establish that it cannot be secured from a less-intrusive source. Only in the most narrow of circumstances can the “need” prong be satisfied: (1) where a constitutional right is at stake, such as a defendant’s right to a fair trial, or (2) where a party has waived the privilege either expressly, as provided by statute, or implicitly by placing an otherwise protected matter in issue.

Pursuant to N.J.R.E. 530, waiver is only possible when it is exercised by a person while he or she is the holder of a privilege.

The “no less intrusive source” prong cannot be satisfied where other witnesses can testify about the events at issue.

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

Absent a valid excuse, a person who does not comply with a subpoena to testify may be held in contempt — the exercise of a valid testimonial privilege constitutes an adequate excuse originally appeared on NJ Family Issues on January 30, 2012.

“To successfully argue that your hourly rate is reasonable, certifications of hourly rates from attorneys in similarly sized firms in nearby jurisdictions and practice in particular legal areas will probably be far more persuasive to the Court than anything else.” — Source: Did Heller’s Attorneys Demand Reasonable Hourly Rates?, published in Matthew Stoloff’s Blog.

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

Are your hourly rates reasonable? originally appeared on NJ Family Issues on January 26, 2012.

“‘[T]he enforcement, collection, modification and extinguishment of unpaid arrearages in . . . child support payments are matters addressed to the sound discretion of the court.’” In re Rogiers, 396 N.J. Super. 317, 327 (App. Div. 2007) (quoting Mastropole v. Mastropole, 181 N.J. Super. 130, 141 (App. Div. 1981)). The exercise of this discretion must entail a “careful examination and weighing of all of the essential facts.” Mastropole, supra, 181 N.J. Super. at 141.

NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

The enforcement, collection, modification and extinguishment of unpaid arrearages in child support payments are matters addressed to the sound discretion of the court originally appeared on NJ Family Issues on January 26, 2012.