Our courts have recognized that rescission of a contract is a remedy for a unilateral mistake under a narrow class of circumstances. Intertech Assocs., Inc. v. City of Paterson, 255 N.J. Super. 52, 59-60 (App. Div. 1992); Hamel v. Allstate Ins. Co., 233 N.J. Super. 502, 507-509 (App. Div. 1989). The mistake must be of sufficient consequence to make that contract unconscionable, relate to a material feature of the contract and be made by one who has exercised reasonable care. Hamel, supra, 233 N.J. Super. at 507.

When proof essential to warrant rescission is not produced, evidence of a mistake may be offered defensively. Specific performance may be withheld “where the evidence reveals that, through mutual or unilateral mistake, the writing does not give expression to the common intention.” Union Fur Shop v. Max Melzer, Inc., 133 N.J. Eq. 416, 420 (E. & A. 1943) (noting that the case did not involve “a party’s inadvertent omission to propose an intended provision or stipulation”). In general, our courts recognize that an order compelling specific performance of “a contract for the sale of land” is not appropriate if it “would be harsh, oppressive or manifestly unjust to one of the parties.” Panco v. Rogers, 19 N.J. Super. 12, 19 (Ch. Div. 1952). Thus, unless the court is “satisfied that the claim is fair, reasonable and equal in all its parts,” the party claiming breach should be left to legal remedies. Id. at 19-20; see Stehr v. Sawyer, 40 N.J. 352, 357 (1963) (noting that the agreement must be sufficiently clear to declare what must be done and that the relief sought cannot be “harsh or oppressive”).

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

New Jersey generally follows the “American Rule,” which provides that litigants are responsible for their own counsel fees and costs, regardless of the outcome. Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247, 95 S. Ct. 1612, 1616, 44 L. Ed. 2d 141, 147 (1975); DiMisa v. Acquaviva, 198 N.J. 547, 553 (2009). There are, however, recognized exceptions to this rule and the LAD is an example of one such exception. Under the LAD, “the prevailing party may be awarded a reasonable attorney’s fee as part of the cost[.]” N.J.S.A. 10:5-27.1. However, because the award of counsel fees under the LAD is discretionary, the decision granting or denying the award of counsel fees will not be disturbed on appeal in the absence of a clear abuse of discretion. Rendine v. Pantzer, 141 N.J. 292, 317 (1995). See also Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super. 55, 84 (App. Div. 2004), certif. denied, 183 N.J. 213 (2005).

The essence of a claim brought under the LAD requires, as a threshold matter, proof of the existence of a protected class. N.J.S.A. 10:5-4.

“A plaintiff is considered a prevailing party ‘when actual relief on the merits of [the] claim materially alters the relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.’” Warrington v. Village Supermarket, Inc., 328 N.J. Super. 410, 420 (App. Div. 2000)(quoting Farrar v. Hobby, 506 U.S. 103, 111-12, 113 S. Ct. 566, 573, 121 L. Ed. 2d 494, 503 (1992)). The litigation must be “a catalyst that prompted defendant[s] to take action and correct an unlawful practice.” Mason v. City of Hoboken, 196 N.J. 51, 74 (2008). That is, there must be “a factual nexus between plaintiff’s litigation and the relief ultimately achieved” and the claim must have had “basis in law.” Warrington, supra, 328 N.J. Super. at 421 (citing Singer v. State, 95 N.J. 487, 494-495 (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 goal of equitable distribution . . . is to effect a fair and just division of marital assets.” Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff’d as modified, 183 N.J. 290 (2005). In fixing an equitable distribution award,

a trial judge enters upon a three-step proceeding. Assuming that some allocation is to be made, he must first decide what specific property of each spouse is eligible for distribution. Secondly, he must determine its value for purposes of such distribution. Thirdly, he must decide how such allocation can most equitably be made.

[Rothman v. Rothman, 65 N.J. 219, 232 (1974).]

An award of equitable distribution is left to the discretion of the trial court and will not be disturbed on appeal “as long as the trial court could reasonably have reached its result from the evidence presented, and the award is not distorted by legal or factual mistake.” La Sala v. La Sala, 335 N.J. Super. 1, 6 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001).

“[V]aluation is not an exact science.” Brown v. Brown, 348 N.J. Super. 466, 477 (App. Div.), certif. denied, 174 N.J. 193 (2002). “There are probably few assets whose valuation imposes as difficult, intricate and sophisticated a task as interests in close corporations.” Ibid. (quoting Lavene v. Lavene, 148 N.J. Super. 267, 275 (App. Div.) certif. denied, 75 N.J. 28 (1977)).

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.

The Appellate Division “give[s] deference to a trial judge’s findings as to issues of alimony, if those findings are supported by substantial credible evidence in the record as a whole.” Cox v. Cox, 335 N.J. Super. 465, 473 (App. Div. 2000). To vacate an award of alimony, the Appellate Division “must conclude that the trial court clearly abused its discretion, failed to consider all of the controlling legal principles, or . . . must otherwise be well satisfied that the findings were mistaken or that the determination could not reasonably have been reached on sufficient credible evidence present in the record[.]” Rolnick v. Rolnick, 262 N.J. Super. 343, 360 (App. Div. 1993), appeal after remand, 290 N.J. Super. 35 (App. Div. 1996).

The award of alimony is largely discretionary with the trial judge. Steneken v. Steneken, 367 N.J. Super. 427, 434-35 (App. Div. 2004), aff’d in part and modified in part, 183 N.J. 290 (2005). That discretion is informed, however, by thirteen factors set forth in N.J.S.A. 2A:34-23(b). Those factors are intended to further the overarching goal of alimony, which is to assist the supported spouse in maintaining a lifestyle reasonably comparable to the one enjoyed during the marriage. Crews v. Crews, 164 N.J. 11, 16 (2000). The trial court is required to analyze all thirteen factors and in contested define the marital standard of living pursuant to the fourth factor as a base line for potential future modifications. Id. In addressing the obligated spouse’s earning capacity, it is within the judge’s discretion to “employ as a benchmark the amount of time plaintiff had devoted to his work during the marriage and to expect him to continue working at that level.” Clarke v. Clarke, 349 N.J. Super. 55, 58 (App. Div. 2002).

Any income generated by the supporting spouse during the marriage is relevant to the proper determination of an alimony award. See Rogers v. Gordon, 404 N.J. Super. 213, 223-25 (App. Div. 2008) (holding in calculating alimony, that the trial court properly imputed income for a husband’s “side jobs” that generated additional income during the marriage); Clarke, supra, 349 N.J. Super. at 58 (holding that the trial court may consider overtime employment when determining the proper amount of alimony).

However, the law requires the court to consider net income, not gross income when determining support obligations. Caplan v. Caplan, 364 N.J. Super. 68, 89 (App. Div. 2003), aff’d, 182 N.J. 250 (2005).

A party may not deliberately remain underemployed in order to shirk his or her support obligations, and a trial court has the discretion to impute a higher income to any individual it believes is doing so. Golian v. Golian, 344 N.J. Super. 337, 341 (App. Div. 2001). There are, however, no bright-line rules which govern the imputation of income. Storey v. Storey, 373 N.J. Super. 464, 474 (App. Div. 2004).

However, there is no legal authority for either imputing income to a teacher who does not work in the summer, or holding that a teacher who does not work in the summer is “underemployed.”

In alimony cases, the trial judge must analyze the thirteen factors in N.J.S.A. 2A:34-23(b). The judge must also articulate, on the record, the “specific findings of fact and conclusions of law” that support his or her conclusions. Pressler, Current N.J. Court Rules, comment on R. 1:7-4 (2010). Naked conclusions are insufficient. A judge must fully and specifically articulate findings of fact and conclusions of law. Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996); Curtis v. Finneran, 83 N.J. 563, 570 (1980). If sufficiently clear factual findings are absent from the record, the Appellate Division will remand to the trial court for additional findings. Curtis, supra, 83 N.J. at 571.

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.

This matter cannot be decided without the development of an appropriate trial-like record. Plaintiffs’ motion for an order in aid of litigant’s rights, Rule 1:10-3, is therefore denied without prejudice to plaintiffs filing an action in Superior Court and seeking to create a record there. We reach no conclusion on the merits of plaintiffs’ allegations regarding the constitutionality of the Civil Union Act, N.J.S.A. 37:1-28 to -36.

[Lewis v. Harris, Order, SUPREME COURT OF NEW JERSEY, M-949 September Term 2009, 058389]

For more information, see my prior Blog Post: Although a fundamental right to same-sex marriage does not exist in N.J., the unequal dispensation of rights and benefits to committed same-sex partners can no longer be tolerated under N.J.’s State Constitution.

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

The pretrial intervention program (PTI), governed by N.J.S.A. 2C:43-12 to -22 and Rule 3:28, is a diversionary program that permits those charged with criminal conduct “to avoid criminal prosecution by receiving early rehabilitative services expected to deter future criminal behavior.” State v. Nwobu, 139 N.J. 236, 240 (1995). It is designed “to assist in the rehabilitation of worthy defendants, and, in the process, to spare them the rigors of the criminal justice system. Eligibility is broad and includes all defendants who demonstrate the will to effect necessary behavioral change such that society can have confidence that they will not engage in future criminality.” State v. Watkins, 193 N.J. 507, 513 (2008).

Diversion into a PTI program is a “quintessentially prosecutorial function,” and the prosecutor has broad discretion to decide whether a defendant should be admitted into PTI. State v. Wallace, 146 N.J. 576, 582 (1996). However, that discretion, while broad, is not unlimited. The exercise of that discretion must be guided by the purposes of the program and the criteria set forth in the governing statute and court rule for admission into PTI. N.J.S.A. 2C:43-12(e); R. 3:28; Pressler, Current N.J. Court Rules, Guidelines to R. 3:28 (2010).

The statute requires that the prosecutors and program directors consider the following criteria when determining whether a particular defendant should be allowed to participate in the PTI program:

(1) The nature of the offense;
(2) The facts of the case;
(3) The motivation and age of the defendant;
(4) The desire of the complainant or victim to forego prosecution;
(5) The existence of personal problems and character traits which may be related to the applicant’s crime and for which services are unavailable within the criminal justice system, or which may be provided more effectively through supervisory treatment and the probability that the causes of criminal behavior can be controlled by proper treatment;
(6) The likelihood that the applicant’s crime is related to a condition or situation that would be conducive to change through his participation in supervisory treatment;
(7) The needs and interests of the victim and society;
(8) The extent to which the applicant’s crime constitutes part of a continuing pattern of anti-social behavior;
(9) The applicant’s record of criminal and penal violations and the extent to which he may present a substantial danger to others;
(10) Whether or not the crime is of an assaultive or violent nature, whether in the criminal act itself or in the possible injurious consequences of such behavior;
(11) Consideration of whether or not prosecution would exacerbate the social problem that led to the applicant’s criminal act;
(12) The history of the use of physical violence toward others;
(13) Any involvement of the applicant with organized crime;
(14) Whether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution;
(15) Whether or not the applicant’s involvement with other people in the crime charged or in other crime is such that the interest of the State would be best served by processing his case through traditional criminal justice system procedures;
(16) Whether or not the applicant’s participation in pretrial intervention will adversely affect the prosecution of codefendants; and
(17) Whether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program.

[N.J.S.A. 2C:43-12(e).]

The court will overturn a prosecutor’s decision denying PTI where it finds a “‘patent and gross abuse of discretion.’” State v. Watkins, supra, 193 N.J. at 520 (quoting State v. Watkins, 390 N.J. Super. 302, 305 (App. Div. 2007)). The defendant bears the burden of showing by clear and convincing evidence that this standard has been met. Ibid. For a prosecutor’s decision denying PTI to represent a “patent and gross abuse of discretion,” the decision must have “‘gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention.’” Ibid. (quoting State v. Wallace, supra, 146 N.J. at 582-83). That standard is met where the decision “‘(a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment.’” State v. Negran, 178 N.J. 73, 83 (2003) (quoting State v. Bender, 80 N.J. 84, 93 (1979)).

The Prosecutor’s Office may not attempted to condition defendant’s participation in PTI upon her pleading guilty. Guideline 4 governing the program provides that:

Enrollment in PTI programs should be conditioned upon neither informal admission nor entry of a plea of guilt. Enrollment of defendants who maintain their innocence should be permitted unless the defendant’s attitude would render pretrial intervention ineffective.

[Pressler, supra, Guideline 4 at 1067.]

The official comment to Guideline 4 explains that “[n]either admission of guilt nor acknowledgment of responsibility is required. Steps to bar participation solely on such grounds would be an unwarranted discrimination.” Id. at 1068.

Nonetheless, the official comment to Guideline 4 also recognizes that defendants must assume some responsibility for their conduct in order for the program to be effective, explaining:

[M]any guilty defendants blame their behavior on society, family, friends or circumstance, and avoid recognition of the extent of their own role and responsibility. While such an attitude continues, it is unlikely that behavioral change can occur as a result of short-term rehabilitative work. An understanding and acceptance of responsibility for behavior achieved through counseling, can and often does, result in the beginnings of the defendant’s ability to control his/her acts and is an indication that rehabilitation may, in large measure, have been achieved.

[Ibid.]

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

Rule 1:7-4(a) expressly provides that a court shall “find the facts and state its conclusions of law . . . on every motion decided by a written order that is appealable as of right . . . .”

Rule 1:6-2(f) provides in relevant part that

[i]f the court has made findings of fact and conclusions of law explaining its disposition of the motion, the order shall indicate whether the findings and conclusions were written or oral and the date on which they were rendered. . . . If no such findings have been made, the court shall append to the order a statement of reasons for its disposition if it concludes that explanation is either necessary or appropriate.

“Failure to perform that duty ‘constitutes a disservice to the litigants, the attorneys and the appellate court.’” Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (quoting Kenwood Assocs. v. Bd. of Adjustment of Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976)). See, e.g., Schwarz, supra, 328 N.J. Super. at 282; Chambon v. Chambon, 238 N.J. Super. 225, 231-32 (App. Div. 1990).

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.

Rule 5:3-5(c) permits a court, in its discretion, to make an allowance for legal fees in a matrimonial action after considering a multitude of factors. ^[1] Gotlib v. Gotlib, 399 N.J. Super. 295, 314 (App. Div. 2008); R. 4:42-9(a)(1) (“No fee for legal services shall be allowed in the taxed costs or otherwise, except . . . [i]n a family action, a fee allowance . . . on final determination may be made pursuant to R. 5:35-5(c).”). Additionally, “[a]n application for an allowance of counsel fees must be supported by an affidavit of services addressing the factors enumerated by Rules of Professional Conduct 1.5(a) . . . .” Chestone v. Chestone, 322 N.J. Super. 250, 256 (App. Div. 1999) (citing R. 4:42-9(b)). ^[2]

Where a party, by virtue of his or her need, seeks to compel the other party to pay all or part of counsel fees incurred, only those fees that represent reasonable compensation for such legal services performed and were reasonably necessary in the prosecution or defense of the litigation may be awarded.

[Id. at 257 (citing Mayer v. Mayer, 180 N.J. Super. 164, 169 (App. Div.), certif. denied, 88 N.J. 494 (1981)).]

Moreover, R. 1:10-3 specifically allows a court to “make an allowance for counsel fees to be paid by any party to the action to a party accorded relief under this rule.” The rule also references Rule 5:3-7, which specifically allows economic sanctions due to a violation of an alimony or child support order. R. 5:3-7(b)(4).

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

1. I.e., (1) the financial circumstances of the parties;
   (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party;
   (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial;
   (4) the extent of the fees incurred by both parties;
   (5) any fees previously awarded;
   (6) the amount of fees previously paid to counsel by each party;
   (7) the results obtained;
   (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and
   (9) any other factor bearing on the fairness of an award.
   [R. 5:3-5(c).]
2. The Rules of Professional Conduct state in pertinent part:

   (a) A lawyer’s fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
   (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
   (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
   (3) the fee customarily charged in the locality for similar legal services;
   (4) the amount involved and the results obtained;
   (5) the time limitations imposed by the client or by the circumstances;
   (6) the nature and length of the professional relationship with the client;
   (7) the experience, reputation, and ability of the lawyer or lawyers performing the services;
   (8) whether the fee is fixed or contingent.

   [R.P.C. 1.5(a).]

Rule 4:49-2 provides:

Except as otherwise provided by R. 1:13-1 (clerical errors) a motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it. The motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred.

Rule 1:13-1 states:

Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight and omission may at any time be corrected by the court on its own initiative or on the motion of any party, and on such notice and terms as the court directs, notwithstanding the pendency of an appeal.

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

If the combined net income of the parents is more than $187,200 per year [i.e. $3,600 per week], the court shall apply the guidelines up to $187,200 and supplement the guidelines-based award with a discretionary amount based on the remaining family income (i.e., income in excess of $187,200) and the factors specified in N.J.S.A. 2A:34-23.
[Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2403 (2010).]

Also, Appendix IX-F provides that:

For cases in which the combined net income of the parents is more than $3,600 per week [i.e. $187,200 per year], the child support award at $3,600 represents the minimum basic support award. The court must add a discretionary amount of child support to the minimum basic award based on the factors specified in N.J.S.A. 2A:34-23.

[Pressler, supra, Appendix IX-F to R. 5:6A at 2466.]

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