NJ Family Issues Information and Opinions 2017-07-20T15:49:55Z http://www.kostrolaw.com/NJFamilyIssues/feed/atom/ WordPress PaulKostro <![CDATA[New Jersey’s Uniform Child Custody Jurisdiction and Enforcement Act]]> http://www.kostrolaw.com/NJFamilyIssues/?p=30268 2017-07-19T15:47:11Z 2017-07-19T15:47:11Z ]]>
Law Lessons from B.G. V. L.H., __ N.J. Super. __ (Ch. Div. 2017), Passamano, J.S.C., DOCKET NO. FM-07-468-13, March 24, 2017:

New Jersey’s Uniform Child Custody Jurisdiction and Enforcement Act (“NJUCCJEA” or the “Act”) was adopted in 2004 and codified at N.J.S.A. 2A:34-53 to -95.

Under the Act, only a New Jersey court can make the determination that New Jersey has lost jurisdiction. N.J.S.A. 2A:34-66.

“’Home state’ means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.” N.J.S.A. 2A:34-54.

In considering jurisdiction, the court performs a threestage analysis. In the first stage, the court must determine whether it had acquired “continuing exclusive jurisdiction.” Griffith v. Tressel, 394 N.J. Super. 128, 139 (App. Div. 2007). In the second stage, the court determines “whether . . . circumstances have changed so as to divest this state of . . . jurisdiction.” Id. at 140.

In the event that the court finds that it had acquired continuing exclusive jurisdiction, and that circumstances have not changed, the court then performs the third stage of the analysis. Under that stage, the court must determine, pursuant to N.J.S.A. 2A:34-71, whether New Jersey is an inconvenient forum and, if so, whether Massachusetts is the appropriate forum.

The first stage of the analysis requires that the court consider the question of whether it has continuing exclusive jurisdiction. With respect to that issue, the Appellate Division in Griffith v. Tressel, held that:

The relevant statute is N.J.S.A. 2A:34-66a, which provides: a.) Except as otherwise provided [for exercise of temporary emergency jurisdiction pursuant to N.J.S.A. 2A:34-68], a court of this State that has made a child custody determination consistent with [N.J.S.A. 2A:34-65 (initial custody jurisdiction) or N.J.S.A. 2A:34-67 (jurisdiction to modify)] has exclusive, continuing jurisdiction over the determination. . . . Pursuant to this provision, this state acquires “exclusive, continuing jurisdiction” when a court of this state makes an initial custody determination authorized by N.J.S.A. 2A:34-65 or modifies a custody determination made by another state when authorized to do so by N.J.S.A. 2A:34-67.

[Id. at 139-140.]

The circumstances that will divest the court of jurisdiction are defined in “Subsections a(1) and (2) of N.J.S.A. 2A:34-66 . . . .” Ibid. Those subsections provide that:

a. [A] court of this State that has made a child custody determination consistent with section 13 or 15 [C.2A:34-65 or 2A:34-67] of this act has exclusive, continuing jurisdiction over the determination until:
(1) a court of this State determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this State and that substantial evidence is no longer available in this State concerning the child’s care, protection, training, and personal relationships; or
(2) a court of this State or a court of another state determines that neither the child, nor a parent, nor any person acting as a parent presently resides in this State.

[N.J.S.A. 2A:34-66.]

Under N.J.S.A. 2A:34-66a(1), jurisdiction remains unless “’neither the child, [nor] the child and one parent . . . have a significant connection with this State and . . . substantial evidence is no longer available. . . .’” Griffith v. Tressel, supra, 394 N.J. Super. at 142-43. Jurisdiction will continue in this court absent a finding that both the requisite “significant connection” and “substantial evidence” elements are lacking. Ibid. As long as the court finds either a significant connection, or substantial evidence, New Jersey retains jurisdiction. Ibid.

With respect to this issue, the Appellate Division held that:

jurisdiction is retained until both the requisite “significant connection” and the requisite “substantial evidence” are lacking. Stated in the affirmative, N.J.S.A. 2A:34-66a(1) provides that while this state has either the requisite “significant connection” or “substantial evidence,” its exclusive jurisdiction continues. Although the comment to the UCCJEA casts some doubt on the propriety of this literal reading, it is at best ambiguous on that point. For the reasons set forth below, we conclude that a literal reading is intended. See Pine Belt Chevrolet, Inc. v. Jersey Cent. Power and Light Co., 132 N.J. 564, 578-79 (1993) (discussing the problem of relying solely on the use of the word “and” or the word “or” because the words are frequently used as if interchangeable).

[Ibid.]

In approaching the question of whether a “significant connection” exists, the court performs a fact-specific inquiry. The focus of that inquiry is on the “’relationship between the child and the [parent] remaining in the State with exclusive, continuing jurisdiction. . . .’” Ibid. (quoting UCCJEA, supra, § 202 comment 1, at 674). When “that relationship becomes too attenuated,” the significant connection is lost. Ibid. A finding of significant connection cannot be based solely on a parent’s continued residence in the state. Id. at 145-48.

In Griffith v. Tressel, the Appellate Division considered a case where the connections with New Jersey involved the following facts:

Plaintiff and the child have lived in Maryland since June 2001, one month before the child’s third birthday. Plaintiff’s mother and stepfather also live in Maryland. The child first attended school in that state, and she has been evaluated by a speech therapist and an educational psychologist in Maryland, both of whom made recommendations for her development. She has been counseled by a psychologist in Maryland since March 2004.

Defendant continues to reside in New Jersey and exercises his parenting time in New Jersey. He does not identify any relationship that his child has with family members, friends or medical or education professionals in this state or any activities in which she is involved in New Jersey. The child’s connections with this state are limited to her relationship with defendant and involvement with her parents’ postjudgment litigation.

[Id. at 134.]

In considering those facts in the context of the Act, the Appellate Division held that:

This child’s connection with defendant and New Jersey is not so attenuated as to be deemed not “significant.” The child left New Jersey in June 2001, shortly before her third birthday. Between that time and August 9, 2005, the date on which defendant filed this motion to change custody, the child returned to New Jersey for parenting time on alternate weekends and holidays and two weeks during the summers, at least twenty percent of each year. Defendant also shares legal custody of the child with plaintiff, which gives him a role in the child’s life beyond the hours of his parenting time. Consistent with the final judgment of divorce, which suggests, although not strongly, an agreement to litigate in New Jersey, both parties sought relief in our courts on numerous occasions following their divorce and prior to this litigation. They and their child attended family counseling in New Jersey pursuant to a court order, and the abuse that was alleged by plaintiff, allegedly occurred in this state.

These facts do not permit a finding that the “child” or “the child and one parent” (defendant, who is the parent remaining in this state) did not have a “significant connection with this State” when defendant filed this motion. The ordinary sense of the word “significant” is “meaningful.” Webster’s II New College Dictionary 1027 (1999).

[Id. at 146.]

In Griffith, the Appellate Division held that issues on the “quality” of the parent-child relationship do not necessarily prevent a finding of a significant connection. The Appellate Division noted that “[t]he papers submitted below raise a question about the quality of the relationship between defendant and his child, but they do not raise a reasonably debatable question about its significance or its connection with this state.” Ibid.

The Act provides that:

A court of this State that has jurisdiction under this act to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon the court’s own motion, request of another court or motion of a party.

[N.J.S.A. 2A:34-71(a).]

Both parts of that section must be met. In S.B. v. G.M.B., 434 N.J. Super. 463, 472 (App. Div. 2014), the Appellate Division held that before relinquishing jurisdiction, the court must find not only “that New Jersey constitutes ‘an inconvenient forum’ but also that [the foreign court] represents ‘a more appropriate forum’”; the statute joins those two concepts with the word ‘and,’ and so both elements must be found before the home state may decline jurisdiction.”

In considering whether New Jersey is an inconvenient forum and whether Massachusetts is a more appropriate forum, the court considers all the relevant factors including the eight factors set forth in N.J.S.A. 2A:34-71(b). “The focus of that inquiry is whether ‘the court of another State is in a better position to make the custody determination, taking into consideration the relative circumstances of the parties.’” Griffith v. Tressel, supra, 394 N.J. Super. at 148 (quoting UCCJEA, §207, comment at 683). The eight factors are:

(1) whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(2) the length of time the child has resided outside this State;
(3) the distance between the court in this State and the court in the state that would assume jurisdiction;
(4) the relative financial circumstances of the parties;
(5) any agreement of the parties as to which state should assume jurisdiction;
(6) the nature and location of the evidence required to resolve the pending litigation, including the testimony of the child;
(7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(8) the familiarity of the court of each state with the facts and issues of the pending litigation.

[N.J.S.A. 2A:34-71(b).]

The fact that the parties consented to continuing jurisdiction in New Jersey is not dispositive. In Griffith v. Tressel, the Appellate Division held that “[a]n agreement between the parties cannot bind the courts of this state to accept subject matter jurisdiction when not permitted by law.” Griffith v. Tressel, supra, 394 N.J. Super. at 137-138. The consent must, however, be given some consideration. S.B. v. G.M.B., supra, 434 N.J. Super. at 477.

In S.B. v. G.M.B., the Appellate Division held that:

The fifth factor requires consideration of “any agreement of the parties as to which state should assume jurisdiction.” N.J.S.A. 2A:34-71(b)(5). There is no question the parties unambiguously agreed that New Jersey would remain the exclusive jurisdiction for the resolution of their disputes. Indeed, the PSA expresses that [the father] surrendered his statutory right to object to the removal of the children from the jurisdiction, N.J.S.A. 9:2-2, in exchange for [the mother’s] agreement that New Jersey would remain the forum for all their parenting-time disputes until emancipation of the youngest child. The judge’s statement that the parties’ agreement is not binding suggests he gave it little weight. The judge was greatly mistaken in this regard. The parties stipulated to the continuation of New Jersey as the forum for any disputes. [The mother] received valuable consideration in obtaining [the father’s] consent to her removal of the children from New Jersey; she gained certainty and the elimination of the possibility of [the father’s] opposition to removal and the subsequent litigation — in New Jersey—that would have likely followed. The judge erred in giving this factor little or no weight.

[Ibid.]

Read together, Griffith v. Tressel and S.B. v. G.M.B. require that a court consider the consent to jurisdiction, although consent is not dispositive.

The Appellate Division in S.B. v. G.M.B., stated that:

The eighth and final factor requires consideration of “the familiarity of the court of each state with the facts and issues of the pending litigation.” N.J.S.A. 2A:34-71(b)(8). The record reveals that no Canadian court is familiar with this case. On the other hand, the trial judge presided over and made findings of fact in the domestic violence matter, and he later presided over the uncontested divorce proceedings; accordingly, our courts are quite familiar with the parties and their past troubles, whereas the Canadian courts know nothing of these parties.

[S.B. v. G.M.B., supra, 434 N.J. Super. at 479-80.]

In considering the factors, the court performs a quantitative and qualitative analysis.

[A] quantitative consideration of the statutory factors strongly tilt in favor of New Jersey’s retention of jurisdiction. Even so, we recognize that simple arithmetic is not what the legislation expects of our courts. A more sophisticated approach requires a consideration—based on the parties’ particular circumstances—as to the weight to be given to those in favor of and against a declination of jurisdiction.

[S.B. v. G.M.B., supra, 434 N.J. Super. at 480.]

A plenary hearing should be held in cases where the court must make findings on disputed facts. In such circumstances, a hearing allows the court to observe the witnesses first-hand so as to be in a position to make credibility determinations. See, e.g., Amatuzzo v. Kozmiuk, 305 N.J. Super. 469, 475-76 (App. Div. 1997). A plenary hearing is not, however, necessary in every case. Harrington v. Harrington, 281 N.J. Super. 39, 46-47, (App. Div.), certif. denied, 142 N.J. 455 (1995).

In Harrington, the Appellate Division held that:

We recognize that not every factual dispute that arises in the context of matrimonial proceedings triggers the need for a plenary hearing. Adler v. Adler, 229 N.J. Super. 496, 500 (App. Div.1988). But we have repeatedly emphasized that trial judges cannot resolve material factual disputes upon conflicting affidavits and certifications. E.g. Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div.1982); Tancredi v. Tancredi, 101 N.J. Super. 259, 262 (App. Div.1968).

[Id. at 47.]

Under the authority cited above, a plenary hearing is not necessary unless there is a material issue of disputed facts. If the court finds that such a dispute exists, a plenary hearing should be held, regardless of whether a hearing was requested by any party.

In Sajjad v. Cheema, 428 N.J. Super. 160 (App. Div. 2012), the Appellate Division reversed a trial court’s rulings on jurisdiction. In its opinion, the Appellate Division held that:

the error was compounded by the Family Part judge’s failure to conduct a hearing or render any analysis of the facts presented in the parties’ pleadings, which advance conflicting facts integral to a determination of the child’s home state. See, Dunne v. Dunne, 209 N.J. Super. 559, 571 (App. Div. 1986) (“Since the issues . . . hinge on factual determinations, credibility and diverse contentions, a plenary hearing is required.”).

[Id. at 177.]

In Sajjad v. Cheema, “the facts surrounding the parties’ intentions and expectations are hotly disputed.” Id. at 164. With respect to the facts at issue, the Appellate Division noted that:

defendant submitted documentation suggesting he was a permanent domiciliary of the United Kingdom, and an “expatriate on a temporary assignment” to the United States. Defendant argued plaintiff and the child moved to Pakistan in the summer of 2009, intending to join him in the United Kingdom with no expectation of returning to the United States. He supported this with documents showing the child discontinued his Arabic/Islamic education in April 2009; stopped attending Islamic Tae Kwon Do in May 2009; and was withdrawn from his Ridgefield elementary school on June 3, 2009, because “the family w[ould] be relocating abroad.” Defendant noted once in Pakistan, plaintiff and the child lived with her parents, she stored her jewelry in a local bank safe deposit box, and enrolled the child in school.

Plaintiff refutes most of defendant’s contentions, insisting her trip to Pakistan was an annual family visit and she and defendant had every expectation of returning to the United States at the conclusion of defendant’s assignment in the United Kingdom. She disavows knowledge of the child’s withdrawal from school, religious education, and “religion-based physical training” classes. To support her position, she offered a letter from Deutsche Bank written to secure the child’s reentry to the United States in September 2009.

[Id. at 164-165.]

In Sajjad, the facts that were in dispute went to the issue of jurisdiction.

In considering a request for legal fees, the court must consider the factors set forth in Rule 5:3-5(c). Clarke v. Clarke ex rel. Costine, 359 N.J. Super. 562, 572 (App. Div. 2003).

“A spouse’s need for a fee award is determined by his or her income and available capital assets, and a disparity in income often suggests some entitlement to a fee allowance.” J.E.V. v. K.V., 426 N.J. Super. 475, 494 (App. Div. 2012). The Appellate Division in J.E.V. v. K.V., went on to state that:

Fees in family actions are normally awarded to permit parties with unequal financial positions to litigate (in good faith) on an equal footing. Anzalone v. Anzalone Bros., Inc. and Anzalone, 185 N.J. Super. 481, 486-87 (App. Div. 1982). With the addition of bad faith as a consideration, it is also apparent that fees may be used to prevent a maliciously motivated party from inflicting economic damage on an opposing party by forcing expenditures for counsel fees. This purpose has a dual character since it sanctions a maliciously motivated position and indemnifies the “innocent” party from economic harm. Fagas v. Scott, 251 N.J. Super. 169, 194, 197-200 (Law Div.1991).]

[Id. at 493.]

In considering the fee requests, the court must consider and weigh all of the factors. Accardi v. Accardi, 369 N.J. Super. 75, 90-91 (App. Div. 2004).

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support; Landlord-Tenant Matters; Contracts; Business Formation or Disputes; or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)232-6500; or by Email.


[HOME]

NOTE: My Law Office is located at 116 South Euclid Avenue, Westfield, Union County, NJ. Telephone: 908-232-6500; Paul@Kostro.com

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

New Jersey’s Uniform Child Custody Jurisdiction and Enforcement Act originally appeared on NJ Family Issues on July 19, 2017.

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PaulKostro <![CDATA[Veil-piercing is proper when a subsidiary is an alter ego or instrumentality of the parent corporation]]> http://www.kostrolaw.com/NJFamilyIssues/?p=30261 2017-07-18T20:13:27Z 2017-07-18T20:13:27Z ]]>
Law Lessons from In re Russo, N.J. Super. Chancery Div. (Sarkisian, P.J. Ch.), Docket No. HUD-C-66-16, July 14, 2017:

In essence, veil-piercing is proper when a subsidiary is an alter ego or instrumentality of the parent corporation. Interfaith Cmty. Org. v. Honeywell lnt’I. Inc. 215 F. Supp. 2d 482, 497 (D.N.J. 2002); Verni ex rel. Burstein v. Harry M. Stevens, Inc., 387 N.J. Super. 160, 199-200 (App. Div. 2006).

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support; Landlord-Tenant Matters; Contracts; Business Formation or Disputes; or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)232-6500; or by Email.


[HOME]

NOTE: My Law Office is located at 116 South Euclid Avenue, Westfield, Union County, NJ. Telephone: 908-232-6500; Paul@Kostro.com

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

Veil-piercing is proper when a subsidiary is an alter ego or instrumentality of the parent corporation originally appeared on NJ Family Issues on July 18, 2017.

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PaulKostro <![CDATA[New Jersey courts generally require that a constructive trust be established by clear and convincing evidence]]> http://www.kostrolaw.com/NJFamilyIssues/?p=30259 2017-07-18T20:12:02Z 2017-07-18T20:12:02Z ]]>
Law Lessons from In re Russo, N.J. Super. Chancery Div. (Sarkisian, P.J. Ch.), Docket No. HUD-C-66-16, July 14, 2017:

“(A] constructive trust will be impressed in any case where to fail to do so will result in an unjust enrichment.” D’lppoito v. Castoro, 51 N.J. 584, 588 (1968). As observed by the New Jersey Supreme Court:

Generally all that is required to impose a constructive trust is a finding that there was some wrongful act, usually, though not limited to, fraud, mistake, undue influence, or breach of a confidential relationship, which has resulted in a transfer of property …. A ccnstructive trust may arise, however, even though the acquisition of the property was not wrongful. It arises where the retention of the property would result in the unjust enrichment of the person retaining it.

Id. at 588-89 (internal citations omitted}; see also Stewart v. Harris Structural Steel Co., 198 N.J. Super. 255, 266-68 (App. Div. 1984) (finding that a constructive trust may be imposed to prevent unjust enrichment even where the “acquisition [of the property] was not wrongful”).

New Jersey courts generally require that a constructive trust be established by clear and convincing evidence. Dessel v. Dessel, 122 N.J. Super. 119, 121 (App. Div. 1972), aff’d, 62 N.J. 141 (1973).

New Jersey courts generally require that a constructive trust be established by clear and convincing evidence originally appeared on NJ Family Issues on July 18, 2017.

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PaulKostro <![CDATA[Oral contracts]]> http://www.kostrolaw.com/NJFamilyIssues/?p=30257 2017-07-18T20:09:12Z 2017-07-18T20:09:12Z ]]>
Law Lessons from In re Russo, N.J. Super. Chancery Div. (Sarkisian, P.J. Ch.), Docket No. HUD-C-66-16, July 14, 2017:

In determining whether a valid oral contract was made to bind the parties, courts can look to a variety of factors, including ‘the circumstances surrounding the negotiation, … the relationship of the parties, or … the parties’ contemporaneous statements and past dealings.” Morton v. 4 Orchard Land Trust, 180 N.J. 118, 130 (2004); see also Lobiondo v O’Callaqhan, 357 N.J. Super. 488, 496 (App. Div. 2003).

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support; Landlord-Tenant Matters; Contracts; Business Formation or Disputes; or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)232-6500; or by Email.


[HOME]

NOTE: My Law Office is located at 116 South Euclid Avenue, Westfield, Union County, NJ. Telephone: 908-232-6500; Paul@Kostro.com

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

Oral contracts originally appeared on NJ Family Issues on July 18, 2017.

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PaulKostro <![CDATA[The essence of a fiduciary relationship is that one party places trust and confidence in another who is in a dominant or superior position]]> http://www.kostrolaw.com/NJFamilyIssues/?p=30255 2017-07-18T20:08:06Z 2017-07-18T20:08:06Z ]]>
Law Lessons from In re Russo, N.J. Super. Chancery Div. (Sarkisian, P.J. Ch.), Docket No. HUD-C-66-16, July 14, 2017:

The essence of a fiduciary relationship is that one party places trust and confidence in another who is in a dominant or superior position. A fiduciary relationship arises between two persons when one person is under a duty to act for or give advice for the benefit of another on matters within the scope of their relationship. The fiduciary’s obligations to the dependent party include a duty of loyalty and a duty to exercise reasonable skill and care. Accordingly, the fiduciary is liable for harm resulting from a breach of the duties imposed by the existence of such a relationship.
F.G. v. MacDonell, 150 N.J. 550, 563 (1997) (internal citations omitted).

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support; Landlord-Tenant Matters; Contracts; Business Formation or Disputes; or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)232-6500; or by Email.


[HOME]

NOTE: My Law Office is located at 116 South Euclid Avenue, Westfield, Union County, NJ. Telephone: 908-232-6500; Paul@Kostro.com

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

The essence of a fiduciary relationship is that one party places trust and confidence in another who is in a dominant or superior position originally appeared on NJ Family Issues on July 18, 2017.

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PaulKostro <![CDATA[Courts of equity have the inherent power in a proper case to appoint a receiver for a corporation on the ground of gross or fraudulent mismanagement by corporate officers or gross abuse of trust or general dereliction of duty]]> http://www.kostrolaw.com/NJFamilyIssues/?p=30253 2017-07-18T20:06:58Z 2017-07-18T20:06:58Z ]]>
Law Lessons from In re Russo, N.J. Super. Chancery Div. (Sarkisian, P.J. Ch.), Docket No. HUD-C-66-16, July 14, 2017:

Courts of equity have the “inherent power in a proper case to appoint a receiver for a corporation on the ground of gross or fraudulent mismanagement by corporate officers or gross abuse of trust or general dereliction of duty.” Roach v. Marquilies, 42 N.J. Super. 243,245 (App. Div. 1956). However, to limit the “drastic” effects of the appointment of a receiver, courts have consistently approved the pendent lite appointment of a special fiscal agent to protect and preserve the assets of a corporation and to play a conciliatory role in resolving issues that may give rise to future litigation. See id. at 245-46; Kelleyv. Axelsson, 296 N.J. Super. 426,437 (App. Div. 1997) (approving the appointment of a fiscal agent or director to represent the interest of oppressed minority shareholders). Ultimately, the appointment of a receiver may be justified by equitable principles, as observed by the Roach court:

Equitable remedies ‘are distinguished for their flexibility, their unlimited variety, their adaptability to circumstances, and the natural rules which govern their use. There is in fact no limit to their variety and application; the court of equity has the power of devising its remedy and shaping it so as to fit the changing circumstances of every case and the complex relations of all the parties.’ A lack of precedent, or mere novelty in incident, Is no obstacle to the award of equitable relief, if the case presented is referable to an established head of equity jurisprudence .. either of primary right or of remedy merely.

Roach, supra, 42 N.J. Super. at 246 (quoting Sears, Roebuck & Co: v. Camp. 124 N.J. Eq. 403, 411 (E&A 1938)) (internal citations. omitted). Courts have given special fiscal agents a wide variety of powers, ranging from a peacekeeping role to the power to investigate allegations of shareholder oppression and develop a proposal for the terms and conditions of !he sale of stock. See, w.,_, Bonavita v. Corbo, 300 N.J. Super. 179, 201 (Ch. Div. 1996). The appointment of a special fiscal agent “to continue the ·operation of the corporation for both majority and minority until differences are resolved or until oppressive conduct ceases” may even be justified, based on the conduct of the parties, as a less drastic alternative to dissolution of a corporation. See Brenner v. Berkowitz, 134 N.J. 488, 514-15 (1993).

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support; Landlord-Tenant Matters; Contracts; Business Formation or Disputes; or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)232-6500; or by Email.


[HOME]

NOTE: My Law Office is located at 116 South Euclid Avenue, Westfield, Union County, NJ. Telephone: 908-232-6500; Paul@Kostro.com

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

Courts of equity have the inherent power in a proper case to appoint a receiver for a corporation on the ground of gross or fraudulent mismanagement by corporate officers or gross abuse of trust or general dereliction of duty originally appeared on NJ Family Issues on July 18, 2017.

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PaulKostro <![CDATA[A party may request an amendment of the pleadings and pretrial order as may be necessary to cause them to conform to the evidence]]> http://www.kostrolaw.com/NJFamilyIssues/?p=30251 2017-07-18T20:03:13Z 2017-07-18T20:03:13Z ]]>
Law Lessons from In re Russo, N.J. Super. Chancery Div. (Sarkisian, P.J. Ch.), Docket No. HUD-C-66-16, July 14, 2017:

Under R. 4:9-2 a party may request an amendment of the pleadings and pretrial order “as may be necessary to cause them to conform to the evidence.” While a court’s broad discretion to permit amendment to conform to the evidence is normally liberally applied, amendments after trial are not permitted where “undue prejudice would result.” See Kernan v. One Washington Park, 154 N.J. 437, 547 (1998). Accordingly, “[a]lthough under R. 4:9-2 the claims of a party may be deemed amended to conform to the proofs at a trial, such amendment should be at the behest of a party and should be granted only if there is a full hearing where the evidence and arguments for and against the issue may be considered.” Essex County Adjustor v. Brookes, 198 N.J. Super. 104, 114 (App. Div. 1984) (emphasis added).

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support; Landlord-Tenant Matters; Contracts; Business Formation or Disputes; or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)232-6500; or by Email.


[HOME]

NOTE: My Law Office is located at 116 South Euclid Avenue, Westfield, Union County, NJ. Telephone: 908-232-6500; Paul@Kostro.com

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

A party may request an amendment of the pleadings and pretrial order as may be necessary to cause them to conform to the evidence originally appeared on NJ Family Issues on July 18, 2017.

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PaulKostro <![CDATA[The Telephone Consumer Protection Act provides consumers with a private right of action for certain prohibited uses of automated telephone equipment]]> http://www.kostrolaw.com/NJFamilyIssues/?p=30289 2017-07-20T10:21:07Z 2017-07-17T10:11:14Z ]]>
Law Lessons from Susinno v. Work Out World Inc., LLC, ___ F.3d ___ (3d Cir. 2017), (Hardiman, U.S.C.J.), July 10, 2017:

The Telephone Consumer Protection Act (TCPA) provides consumers with a private right of action for certain prohibited uses of automated telephone equipment. 47 U.S.C. § 227(b)(3).

The relevant text of the TCPA reads:

It shall be unlawful for any person within the United States . . .
(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . .
(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call . . . .

47 U.S.C. § 227(b)(1).

As the Court of Appeals for the Eleventh Circuit explained:
“[t]he rule of the last antecedent requires the phrase ‘for which the called party is charged for the call,’ [in § 227(b)(1)], ‘to be applied to the words or phrase immediately preceding (i.e. “any service”), and not to be construed as extending to or including others more remote.’” Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1257 (11th Cir. 2014) (citation and alterations omitted).

Section 227(b)(2)(C) provides that the Federal Communications Commission (FCC):

may, by rule or order, exempt from the requirements of paragraph (1)(A)(iii) of this subsection calls to a telephone number assigned to a cellular telephone service that are not charged to the called party, subject to such conditions as the Commission may prescribe as necessary in the interest of the privacy rights this section is intended to protect.

Although it is true that the TCPA placed particular emphasis on intrusions upon the privacy of the home in 1991, this expression of particular concern for residential calls does not limit—either expressly or by implication—the statute’s application to cell phone calls.

In Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). There, the Court considered Thomas Robins’s claim that Spokeo, the “people search engine,” violated the Fair Credit Reporting Act (FCRA) by disseminating inaccurate information about his creditworthiness. 136 S. Ct. at 1544. Spokeo stated inaccurately that Robins “is married, has children, is in his 50’s, has a job, is relatively affluent, and holds a graduate degree.” Id. at 1546. Although these inaccuracies did not have an obvious negative effect on Robins’s creditworthiness, the Court of Appeals for the Ninth Circuit held that an individualized violation of a statutory right always constitutes an injury sufficient to confer standing. Id.

The Supreme Court vacated the decision of the Ninth Circuit, clarifying that “Article III standing requires a concrete injury even in the context of a statutory violation.” Id. at 1549. Significantly for this appeal, the Court also noted that “intangible injuries can nevertheless be concrete.” Id. To determine whether an intangible injury is concrete, the Court explained that “both history and the judgment of Congress play important roles.” Id. As for the historical inquiry, “it is instructive to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.” Id. The Supreme Court also recognized that Congress may elevate certain intangible harms “to the status of legally cognizable injuries,” even if those injuries “were previously inadequate in law.” Id. (citation omitted); see also id. (explaining that “because Congress is well positioned to identify intangible harms that meet minimum Article III requirements, its judgment is also instructive and important,” but that this “does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right”).

In In re Horizon Healthcare Services Inc. Data Breach Litigation, 846 F.3d 625 (3d Cir. 2017), we applied Spokeo to a claim for inadequate protection of personal information in violation of the FCRA. Despite no allegation “that the information was actually used to [the plaintiffs’] detriment,” we held that “[i]n light of the congressional decision to create a remedy for the unauthorized transfer of personal information, a violation of [the] FCRA gives rise to an injury sufficient for Article III standing purposes.” Id. at 629.

While Spokeo teaches that “there are some circumstances where the mere technical violation of a procedural requirement of a statute cannot, in and of itself, constitute an injury in fact,” there was “no occasion to consider” the “limiting circumstances . . . not defined in Spokeo.” Id. at 638. Plaintiffs in Horizon alleged “the very injury that [the] FCRA is intended to prevent.” Id. at 640. And, “the ‘intangible harm’ that [the] FCRA seeks to remedy ‘has a close relationship to a harm [i.e. invasion of privacy] that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.’” Id. at 639–40 (alterations in original) (quoting Spokeo, 136 S. Ct. at 1549). This close relationship existed even though the conduct alleged would not have “give[n] rise to a cause of action under common law.” Id. at 639.

When one sues under a statute alleging “the very injury [the statute] is intended to prevent,” and the injury “has a close relationship to a harm . . . traditionally . . . providing a basis for a lawsuit in English or American courts,” a concrete injury has been pleaded. Id. at 639–40. All intangible injuries that meet this standard are concrete.

Congress squarely identified this injury. The TCPA addresses itself directly to single prerecorded calls from cell phones, and states that its prohibition acts “in the interest of [ ] privacy rights.” 47 U.S.C. § 227(b)(2)(C). The congressional findings in support of the TCPA likewise refer to complaints that “automated or prerecorded telephone calls are a nuisance [and] . . . an invasion of privacy.” Pub. L. 102–243, § 2. In asserting “nuisance and invasion of privacy” resulting from a single prerecorded telephone call, her complaint asserts “the very harm that Congress sought to prevent,” arising from prototypical conduct proscribed by the TCPA. App. 11 (First Amended Complaint); see also Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1043 (9th Cir. 2017) (finding two unwanted text messages constituted a concrete injury under the TCPA, as they “present the precise harm and infringe the same privacy interests Congress sought to protect”).

As the court said in Horizon, a close relationship does not require that the newly proscribed conduct would “give rise to a cause of action under common law.” 846 F.3d at 639. But it does require that newly established causes of action protect essentially the same interests that traditional causes of action sought to protect. The Court of Appeals for the Ninth Circuit has opined that TCPA claims closely relate to traditional claims for “invasions of privacy, intrusion upon seclusion, and nuisance [which] have long been heard by American courts.” Van Patten, 847 F.3d at 1043.

Traditionally, a plaintiff’s “privacy is invaded” for the purpose of an intrusion upon seclusion claim by telephone calls “only when [such] calls are repeated with such persistence and frequency as to amount to . . . hounding.” Intrusion upon Seclusion, Restatement (Second) of Torts § 652B, cmt d (1977). The Second Restatement suggests that because “two or three” calls would not be “highly offensive to the ordinary reasonable [person],” they traditionally would provide no cause of action. Id. Yet when Congress found that “[u]nsolicited telemarketing phone calls or text messages, by their nature, invade the privacy and disturb the solitude of their recipients,” Van Patten, 847 F.3d at 1043, it sought to protect the same interests implicated in the traditional common law cause of action.[[a party does not satisfy the concreteness analysis “simply by appending the word ‘privacy’ to her allegation.” But intrusion upon seclusion is a well-recognized subset of common law invasion of privacy. See Wilcher v. City of Wilmington, 139 F.3d 366, 379 (3d Cir. 1998); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 117, p. 854–55 (5th ed. 1984) (discussing “unreasonable and highly offensive intrusion upon the seclusion of another” as “consist[ing] of intentional interference with another’s interest in solitude or seclusion,” including “persistent and unwanted telephone calls” (footnote omitted)).]] Put differently, Congress was not inventing a new theory of injury when it enacted the TCPA. Rather, it elevated a harm that, while “previously inadequate in law,” was of the same character of previously existing “legally cognizable injuries.” Spokeo, 136 S. Ct. at 1549. Spokeo addressed, and approved, such a choice by Congress.

The Spokeo Court meant to reiterate traditional notions of standing.” Horizon, 846 F.3d at 638. And the traditional notion of standing “requir[es] only that claimant allege some specific, identifiable trifle of injury.” Blunt v. Lower Merion School Dist., 767 F.3d 247, 278 (3d Cir. 2014) (alterations and citations omitted). Where a plaintiff’s intangible injury has been made legally cognizable through the democratic process, and the injury closely relates to a cause of action traditionally recognized in English and American courts, standing to sue exists.

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support; Landlord-Tenant Matters; Contracts; Business Formation or Disputes; or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)232-6500; or by Email.


[HOME]

NOTE: My Law Office is located at 116 South Euclid Avenue, Westfield, Union County, NJ. Telephone: 908-232-6500; Paul@Kostro.com

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

The Telephone Consumer Protection Act provides consumers with a private right of action for certain prohibited uses of automated telephone equipment originally appeared on NJ Family Issues on July 17, 2017.

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PaulKostro <![CDATA[In considering jurisdiction under New Jersey’s Uniform Child Custody Jurisdiction and Enforcement Act, the court performs a three-stage analysis]]> http://www.kostrolaw.com/NJFamilyIssues/?p=30207 2017-07-14T11:13:42Z 2017-07-14T11:13:42Z ]]>
Law Lessons from Gottfried v. Hollander, __ N.J. Super. __ (Ch. Div. 2017), (Passamano, J.S.C.), DOCKET NO. FM-07-468-13, JULY 13, 2017:

New Jersey’s Uniform Child Custody Jurisdiction and Enforcement Act (“NJUCCJEA” or the “Act”) was adopted in 2004 and codified at N.J.S.A. 2A:34-53 to -95. Under the Act, only a New Jersey court can make the determination that New Jersey has lost jurisdiction. N.J.S.A. 2A:34-66.

For purposes of the Act, “’Home state’ means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.” N.J.S.A. 2A:34-54.

In considering jurisdiction, the court performs a three-stage analysis. In the first stage, the court must determine whether it had acquired “continuing exclusive jurisdiction.” Griffith v. Tressel, 394 N.J. Super. 128, 139 (App. Div. 2007).

In the second stage, the court determines “whether . . . circumstances have changed so as to divest this state of . . . jurisdiction.” Id. at 140.

In the event that the court finds that it had acquired continuing exclusive jurisdiction, and that circumstances have not changed, the court then performs the third stage of the analysis. Under that stage, the court must determine, pursuant to N.J.S.A. 2A:34-71, whether New Jersey is an inconvenient forum and, if so, whether Massachusetts is the appropriate forum.

The first stage of the analysis requires that the court consider the question of whether it has continuing exclusive jurisdiction. With respect to that issue, the Appellate Division in Griffith v. Tressel, held that:

The relevant statute is N.J.S.A. 2A:34-66a, which provides: a.) Except as otherwise provided [for exercise of temporary emergency jurisdiction pursuant to N.J.S.A. 2A:34-68], a court of this State that has made a child custody determination consistent with [N.J.S.A. 2A:34-65 (initial custody jurisdiction) or N.J.S.A. 2A:34-67 (jurisdiction to modify)] has exclusive, continuing jurisdiction over the determination. . . . Pursuant to this provision, this state acquires “exclusive, continuing jurisdiction” when a court of this state makes an initial custody determination authorized by N.J.S.A. 2A:34-65 or modifies a custody determination made by another state when authorized to do so by N.J.S.A. 2A:34-67.

[Id. at 139-140.]

The circumstances that will divest the court of jurisdiction are defined in “Subsections a(1) and (2) of N.J.S.A. 2A:34-66 . . . .” Ibid. Those subsections provide that:

a. [A] court of this State that has made a child custody determination consistent with section 13 or 15 [C.2A:34-65 or 2A:34-67] of this act has exclusive, continuing jurisdiction over the determination until:
(1) a court of this State determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this State and that substantial evidence is no longer available in this State concerning the child’s care, protection, training, and personal relationships; or
(2) a court of this State or a court of another state determines that neither the child, nor a parent, nor any person acting as a parent presently resides in this State.

[N.J.S.A. 2A:34-66.]

Under N.J.S.A. 2A:34-66a(1), jurisdiction remains unless “’neither the child, [nor] the child and one parent . . . have a significant connection with this State and . . . substantial evidence is no longer available. . . .’” Griffith v. Tressel, supra, 394 N.J. Super. at 142-43. Jurisdiction will continue in this court absent a finding that both the requisite “significant connection” and “substantial evidence” elements are lacking. Ibid. As long as the court finds either a significant connection, or substantial evidence, New Jersey retains jurisdiction. Ibid.

With respect to this issue, the Appellate Division held that:

jurisdiction is retained until both the requisite “significant connection” and the requisite “substantial evidence” are lacking. Stated in the affirmative, N.J.S.A. 2A:34-66a(1) provides that while this state has either the requisite “significant connection” or “substantial evidence,” its exclusive jurisdiction continues. Although the comment to the UCCJEA casts some doubt on the propriety of this literal reading, it is at best ambiguous on that point. For the reasons set forth below, we conclude that a literal reading is intended. See Pine Belt Chevrolet, Inc. v. Jersey Cent. Power and Light Co., 132 N.J. 564, 578-79 (1993) (discussing the problem of relying solely on the use of the word “and” or the word “or” because the words are frequently used as if interchangeable).

[Ibid.]

In approaching the question of whether a “significant connection” exists, the court performs a fact-specific inquiry. The focus of that inquiry is on the “’relationship between the child and the [parent] remaining in the State with exclusive, continuing jurisdiction. . . .’” Ibid. (quoting UCCJEA, supra, § 202 comment 1, at 674). When “that relationship becomes too attenuated,” the significant connection is lost. Ibid. A finding of significant connection cannot be based solely on a parent’s continued residence in the state. Id. at 145-48.

In Griffith v. Tressel, the Appellate Division considered a case where the connections with New Jersey involved the following facts:

Plaintiff and the child have lived in Maryland since June 2001, one month before the child’s third birthday. Plaintiff’s mother and stepfather also live in Maryland. The child first attended school in that state, and she has been evaluated by a speech therapist and an educational psychologist in Maryland, both of whom made recommendations for her development. She has been counseled by a psychologist in Maryland since March 2004.

Defendant continues to reside in New Jersey and exercises his parenting time in New Jersey. He does not identify any relationship that his child has with family members, friends or medical or education professionals in this state or any activities in which she is involved in New Jersey. The child’s connections with this state are limited to her relationship with defendant and involvement with her parents’ postjudgment litigation.

[Id. at 134.]

In considering those facts in the context of the Act, the Appellate Division held that:

This child’s connection with defendant and New Jersey is not so attenuated as to be deemed not “significant.” The child left New Jersey in June 2001, shortly before her third birthday. Between that time and August 9, 2005, the date on which defendant filed this motion to change custody, the child returned to New Jersey for parenting time on alternate weekends and holidays and two weeks during the summers, at least twenty percent of each year. Defendant also shares legal custody of the child with plaintiff, which gives him a role in the child’s life beyond the hours of his parenting time. Consistent with the final judgment of divorce, which suggests, although not strongly, an agreement to litigate in New Jersey, both parties sought relief in our courts on numerous occasions following their divorce and prior to this litigation. They and their child attended family counseling in New Jersey pursuant to a court order, and the abuse that was alleged by plaintiff, allegedly occurred in this state.

These facts do not permit a finding that the “child” or “the child and one parent” (defendant, who is the parent remaining in this state) did not have a “significant connection with this State” when defendant filed this motion. The ordinary sense of the word “significant” is “meaningful.” Webster’s II New College Dictionary 1027 (1999).

[Id. at 146.]

In Griffith, the Appellate Division held that issues on the “quality” of the parent-child relationship do not necessarily prevent a finding of a significant connection. The Appellate Division noted that “[t]he papers submitted below raise a question about the quality of the relationship between defendant and his child, but they do not raise a reasonably debatable question about its significance or its connection with this state.” Ibid.

If the court finds that New Jersey has continuing exclusive jurisdiction, the court must then consider if New Jersey is an inconvenient forum and, if so, whether another jurisdiction is a more appropriate forum.

The Act provides that:

A court of this State that has jurisdiction under this act to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon the court’s own motion, request of another court or motion of a party.

[N.J.S.A. 2A:34-71(a).]

Both parts of that section must be met. In S.B. v. G.M.B., 434 N.J. Super. 463, 472 (App. Div. 2014), the Appellate Division held that before relinquishing jurisdiction, the court must find not only “that New Jersey constitutes ‘an inconvenient forum’ but also that [the foreign court] represents ‘a more appropriate forum’”; the statute joins those two concepts with the word ‘and,’ and so both elements must be found before the home state may decline jurisdiction.”

In considering whether New Jersey is an inconvenient forum and whether Massachusetts is a more appropriate forum, the court considers all the relevant factors including the eight factors set forth in N.J.S.A. 2A:34-71(b). “The focus of that inquiry is whether ‘the court of another State is in a better position to make the custody determination, taking into consideration the relative circumstances of the parties.’” Griffith v. Tressel, supra, 394 N.J. Super. at 148 (quoting UCCJEA, §207, comment at 683). The eight factors are:

(1) whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(2) the length of time the child has resided outside this State;
(3) the distance between the court in this State and the court in the state that would assume jurisdiction;
(4) the relative financial circumstances of the parties;
(5) any agreement of the parties as to which state should assume jurisdiction;
(6) the nature and location of the evidence required to resolve the pending litigation, including the testimony of the child;
(7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(8) the familiarity of the court of each state with the facts and issues of the pending litigation.

[N.J.S.A. 2A:34-71(b).]

The fact that the parties consented to continuing jurisdiction in New Jersey is not dispositive. In Griffith v. Tressel, the Appellate Division held that “[a]n agreement between the parties cannot bind the courts of this state to accept subject matter jurisdiction when not permitted by law.” Griffith v. Tressel, supra, 394 N.J. Super. at 137-138. The consent must, however, be given some consideration. S.B. v. G.M.B., supra, 434 N.J. Super. at 477.

In S.B. v. G.M.B., the Appellate Division held that:

The fifth factor requires consideration of “any agreement of the parties as to which state should assume jurisdiction.” N.J.S.A. 2A:34-71(b)(5). There is no question the parties unambiguously agreed that New Jersey would remain the exclusive jurisdiction for the resolution of their disputes. Indeed, the PSA expresses that [the father] surrendered his statutory right to object to the removal of the children from the jurisdiction, N.J.S.A. 9:2-2, in exchange for [the mother’s] agreement that New Jersey would remain the forum for all their parenting-time disputes until emancipation of the youngest child. The judge’s statement that the parties’ agreement is not binding suggests he gave it little weight. The judge was greatly mistaken in this regard. The parties stipulated to the continuation of New Jersey as the forum for any disputes. [The mother] received valuable consideration in obtaining [the father’s] consent to her removal of the children from New Jersey; she gained certainty and the elimination of the possibility of [the father’s] opposition to removal and the subsequent litigation—in New Jersey—that would have likely followed. The judge erred in giving this factor little or no weight.

[Ibid.]

Read together, Griffith v. Tressel and S.B. v. G.M.B. require that a court consider the consent to jurisdiction, although consent is not dispositive.

The Act provides means for evidence to be brought before the court notwithstanding that a witness may reside out of state. While live testimony is preferred, the Act does provide means for testimony to be taken from out-of-state witnesses. N.J.S.A. 2A:34-63.

The factor requires, however, that the court also consider the “testimony of the child.” In considering this factor it is appropriate to consider not only the distance in terms of mileage, but also to consider the relative burden that travel has on each interested party.

The seventh factor requires consideration of “the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence.” N.J.S.A. 2A:34-71(b)(7).

The Appellate Division in S.B. v. G.M.B., stated that:

The eighth and final factor requires consideration of “the familiarity of the court of each state with the facts and issues of the pending litigation.” N.J.S.A. 2A:34-71(b)(8). The record reveals that no Canadian court is familiar with this case. On the other hand, the trial judge presided over and made findings of fact in the domestic violence matter, and he later presided over the uncontested divorce proceedings; accordingly, our courts are quite familiar with the parties and their past troubles, whereas the Canadian courts know nothing of these parties.

[S.B. v. G.M.B., supra, 434 N.J. Super. at 479-80.]

In considering the factors, the court performs a quantitative and qualitative analysis.

[A] quantitative consideration of the statutory factors strongly tilt in favor of New Jersey’s retention of jurisdiction. Even so, we recognize that simple arithmetic is not what the legislation expects of our courts. A more sophisticated approach requires a consideration—based on the parties’ particular circumstances—as to the weight to be given to those in favor of and against a declination of jurisdiction.

[S.B. v. G.M.B., supra, 434 N.J. Super. at 480.]

A plenary hearing should be held in cases where the court must make findings on disputed facts. In such circumstances, a hearing allows the court to observe the witnesses first-hand so as to be in a position to make credibility determinations. See, e.g., Amatuzzo v. Kozmiuk, 305 N.J. Super. 469, 475-76 (App. Div. 1997). A plenary hearing is not, however, necessary in every case. Harrington v. Harrington, 281 N.J. Super. 39, 46-47, (App. Div.), certif. denied, 142 N.J. 455 (1995).

In Harrington, the Appellate Division held that:

We recognize that not every factual dispute that arises in the context of matrimonial proceedings triggers the need for a plenary hearing. Adler v. Adler, 229 N.J. Super. 496, 500 (App. Div.1988). But we have repeatedly emphasized that trial judges cannot resolve material factual disputes upon conflicting affidavits and certifications. E.g. Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div.1982); Tancredi v. Tancredi, 101 N.J. Super. 259, 262 (App. Div.1968).

[Id. at 47.]

Under the authority cited above, a plenary hearing is not necessary unless there is a material issue of disputed facts. If the court finds that such a dispute exists, a plenary hearing
should be held, regardless of whether a hearing was requested by any party.

In Sajjad v. Cheema, 428 N.J. Super. 160 (App. Div. 2012), the Appellate Division reversed a trial court’s rulings on jurisdiction. In its opinion, the Appellate Division held that:

the error was compounded by the Family Part judge’s failure to conduct a hearing or render any analysis of the facts presented in the parties’ pleadings, which advance conflicting facts integral to a determination of the child’s home state. See, Dunne v. Dunne, 209 N.J. Super. 559, 571 (App. Div. 1986) (“Since the issues . . . hinge on factual determinations, credibility and diverse contentions, a plenary hearing is required.”).

[Id. at 177.]

In Sajjad v. Cheema, “the facts surrounding the parties’ intentions and expectations are hotly disputed.” Id. at 164. With respect to the facts at issue, the Appellate Division noted
that:

defendant submitted documentation suggesting he was a permanent domiciliary of the United Kingdom, and an “expatriate on a temporary assignment” to the United States. Defendant argued plaintiff and the child moved to Pakistan in the summer of 2009, intending to join him in the United Kingdom with no expectation of returning to the United States. He supported this with documents showing the child discontinued his Arabic/Islamic education in April 2009; stopped attending Islamic Tae Kwon Do in May 2009; and was withdrawn from his Ridgefield elementary school on June 3, 2009, because “the family w[ould] be relocating abroad.” Defendant noted once in Pakistan, plaintiff and the child lived with her parents, she stored her jewelry in a local bank safe deposit box, and enrolled the child in school.

Plaintiff refutes most of defendant’s contentions, insisting her trip to Pakistan was an annual family visit and she and defendant had every expectation of returning to the United States at the conclusion of defendant’s assignment in the United Kingdom. She disavows knowledge of the child’s withdrawal from school, religious education, and “religion-based physical training” classes. To support her position, she offered a letter from Deutsche Bank written to secure the child’s reentry to the United States in September 2009.

[Id. at 164-165.]

In considering a request for legal fees, the court must consider the factors set forth in Rule 5:3-5(c). Clarke v. Clarke ex rel. Costine, 359 N.J. Super. 562, 572 (App. Div. 2003).

“A spouse’s need for a fee award is determined by his or her income and available capital assets, and a disparity in income often suggests some entitlement to a fee allowance.” J.E.V. v. K.V., 426 N.J. Super. 475, 494 (App. Div. 2012). The Appellate Division in J.E.V. v. K.V., went on to state that:

Fees in family actions are normally awarded to permit parties with unequal financial positions to litigate (in good faith) on an equal footing. Anzalone v. Anzalone Bros., Inc. and Anzalone, 185 N.J. Super. 481, 486-87 (App. Div. 1982). With the addition of bad faith as a consideration, it is also apparent that fees may be used to prevent a maliciously motivated party from inflicting economic damage on an opposing party by forcing expenditures for counsel fees. This purpose has a dual character since it sanctions a maliciously motivated position and indemnifies the “innocent” party from economic harm. Fagas v. Scott, 251 N.J. Super. 169, 194, 197-200 (Law Div.1991).]

[Id. at 493.]

In considering the fee requests, the court must consider and weigh all of the factors. Accardi v. Accardi, 369 N.J. Super. 75, 90-91 (App. Div. 2004).

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support; Landlord-Tenant Matters; Contracts; Business Formation or Disputes; or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)232-6500; or by Email.


[HOME]

NOTE: My Law Office is located at 116 South Euclid Avenue, Westfield, Union County, NJ. Telephone: 908-232-6500; Paul@Kostro.com

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

In considering jurisdiction under New Jersey’s Uniform Child Custody Jurisdiction and Enforcement Act, the court performs a three-stage analysis originally appeared on NJ Family Issues on July 14, 2017.

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PaulKostro <![CDATA[The sufficiency of evidence offered in support of the authentication of evidence]]> http://www.kostrolaw.com/NJFamilyIssues/?p=30285 2017-07-20T09:46:14Z 2017-07-14T09:44:41Z ]]>
Law Lessons from T.H. v. C.B., N.J. Super. App. Div., No. A-4858-15T3, July 13, 2017:

Ahe trial judge, as gatekeeper, has “some degree of latitude” when determining the sufficiency of evidence offered in support of the authentication of evidence. State v. Hockett, 443 N.J. Super. 605, 614 (App. Div. 2016). But it is an abuse of discretion for a judge to fail to permit a proponent the opportunity to present grounds for admission.

The burden of authenticating evidence “was not designed to be onerous.” Id. at 613. The proponent need only present evidence “sufficient to support a finding that the matter is what its proponent claims.” N.J.R.E. 901.

The testimony of a witness that the images reflected in the video “reproduce[d] phenomena actually perceived by the witness” constitue a proper foundation. State v. Wilson, 135 N.J. 4, 15 (1994) (internal quotation omitted). Proponents of a video or motion picture are no longer required to detail the methods of taking, processing, or storing the film. Id. at 14. Moreover, even with such a low bar for authentication, the bar is lowered even further by the absence of an objection to its admission.

NOTE from Paul G. Kostro, Esq.: If you are interested in Mediation; or have issues relating to Divorce, Domestic Violence, Child Support; Landlord-Tenant Matters; Contracts; Business Formation or Disputes; or Other Legal Matters, please call me to schedule an appointment — I can be reached by telephone at (908)232-6500; or by Email.


[HOME]

NOTE: My Law Office is located at 116 South Euclid Avenue, Westfield, Union County, NJ. Telephone: 908-232-6500; Paul@Kostro.com

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

The sufficiency of evidence offered in support of the authentication of evidence originally appeared on NJ Family Issues on July 14, 2017.

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