February 2012
6 posts
1 tag
We're Moving!
As of Saturday, February 25, 2012, Strich Law Firm and Mediation Office will be moving to our lovely new digs, at 4525 Route 27, Kingston NJ 08528. Please come look us up!
C. Megan Oltman, Esq.
Call us with more questions at 609-924-2900, or visit our web site at www.strichlaw.com.
Disclaimer: Any and all information contained on this site is for informational purposes, and should not be...
5 tags
Marriage Equality Moves forward on Two Fronts
Last week, as you are probably aware, both houses of the New Jersey Legislature passed the Marriage Equality Act, although Governor Christie swiftly vetoed the legislation. (Commentators indicate that Governor Christie himself is not anti-gay or anti- marriage equality, but is catering to prospective Republican primary voters in South Carolina in 2016.) The Act passed by 42 to 33 in the Assembly...
4 tags
What do you do if you're divorcing and the house...
It used to be that the single biggest asset the average married couple owned was their home. It used to be that most couples had some equity in their home, and therefore there would be something to share out at the time of the divorce. Neither of these things is necessarily true any more, as more and more homeowners owe more on their home than its market value. So what happens if that couple,...
3 tags
Over the line on Harassment
The branch of New Jersey’s Domestic Violence law dealing with harassment got further explanation by the Appellate Division this week in C.C. v. T.R. The Defendant tried to avail himself of the earlier Appellate Division case, E.D. v. P.D., in which the Appellate Division overturned a Final Restraining Order for harassment where the conduct (leaving belligerent messages and calls at the...
5 tags
Bill Advances in NJ Legislature for Reductions in...
The New Jersey Assembly Judiciary Committee voted unanimously to recommend passage of a bill that would allow a reduction in alimony or child support if the payor demonstrates a reduction in income due to unemployment or disability. While Family Part Judges have already had the power to grant such reductions upon a showing of changed circumstances, they have wide latitude to decide whether the...
4 tags
NJ Anti-bullying legislation needs funding
The New Jersey State Bar Association has filed an amicus brief in support of New Jersey’s landmark Anti-Bullying Bill of Rights legislation passed in the wake of the suicide of Rutgers student Tyler Clemente. The legislation has been challenged in the State Council on Local mandates by Allamuchy Township, which complained that the legislation is an unfunded mandate. The State Bar Association...
June 2011
1 post
4 tags
Suit against Law School for Deceptive Business...
In a difficult economy, there are no guarantees of employment, as many new law school graduates are discovering. Does this mean law schools are training too many lawyers? When I took the LSAT, way back in 1982, the essay question dealt with this issue: should law schools keep training lawyers if there were not enough jobs to go around? We test takers had to take an advocacy position in the essay,...
April 2011
1 post
8 tags
Copy of letter insufficient for probate but...
In I/M/O Estate of Randall, 38-4-1372 Ch. Div. Essex County 2/1/11), the Court said a copy of a letter allegedly written by the decedent does not demonstrate sufficient testamentary intent to be probated. However, in this case, there was a handwritten notation in the decedent’s handwriting that, in the context of the letter and the maintenance of keeping it in a safe place, and, as such,...
March 2011
3 posts
8 tags
Child support arrears not subject to interest
A payee of child support filed a class action against the NJ probation department on its failure to charge post-judgment interest on child support arrears. In Lerro v NJ Department of Family Development, Office of Child Support Services (App. Div. 2011), the Court held she did not have standing (was not an appropriate class of person) both on a federal or state basis to sue on this issue because...
14 tags
No Loss of Retirement for Off-duty Illegal Act
A former corrections officer arrested for distribution a pain killer should not be denied a disability retirement because of this off-duty wrongdoing, as per the Appellate Court in Coughlin v Board of Trustees, Police and Firemen’s Retirement System. Here, the scope of the wrongdoing was limited—two tablets to a private individual in a private car in a commercial parking lot. The...
11 tags
Business Judgment Rule Determinative in Evaluation...
In Seidman v Clifton Savings Bank, S.L.A., (S.Ct. 2011), the NJ Supreme Court affirmed the Appellate Court decision finding that Clifton Savings Bank awards under their Stock Incentive Plan met the Business Judgment Rule and, as such, Seidman’s challenge was denied.
Clifton Savings Bank reorganized in 2004, issuing stock, of which 45% were made available to the public. Seidman bought some...
February 2011
1 post
6 tags
New reproductive technologies: Parentage of a...
Shades of the Baby M case, in a new generation and a new context. A married heterosexual couple with an infertile wife and fertile husband, decides to have a child by means of a donor egg, fertilized in vitro with the husband’s sperm. They then have an embryo implanted in the uterus of a surrogate mother (not the egg donor), who agrees to carry the baby to term for them.
The New Jersey...
January 2011
3 posts
4 tags
S Corporation Shareholder Agreement
S Corporations shareholder agreements include an explanatory statement consent to S election, restriction on sale of the common stock, restrictive legend, request to transfer, transfer by reason of death, transfer in violation of agreemtn, stock issued or transferred in the future, revocation of S corporation election, termination, miscellaneous and signatures of shareholders as well as...
8 tags
Choosing an S Corporation for a business entity
In evaluating which form of corporation you want for your new business entity, an S Corporation has a number of benefits. S Corporations cannot be more than 75 shareholders, though husband and wife, estates, certain trusts, tax-exempt charitable institutions, certain partnerships and other S corporations with a sole shareholder count as one shareholder.
The key benefits of an S Corporation are...
3 tags
Wage Garnishment of Child Support: the Whole...
The New Jersey Appellate Division just ruled in White v. St. Paul that where the trial court had ordered child support to be paid by garnishment of the payor parent’s wages, the full amount ordered was to be garnished, rather than allowing the payor parent to pay part of the amount directly outside of the garnishment. This ruling bolsters the right of the parent receiving support to have the...
December 2010
2 posts
4 tags
Ex-husband can engage in name-calling without...
The New Jersey Appellate Division held yesterday that an “ordinary domestic contretemps” did not rise to the level of harassment required for imposition of a domestic violence restraining order. In E.D. v. P.D. the trial court had entered a restraining order where the ex-husband had repeatedly made belligerent telephone calls to his ex-wife at work, repeated called her names and...
3 tags
Discovery Rule may extend Statute of Limitations...
In Henry v. Department of Human Services, an employee resigned in 2004 after having her request for reassignment denied. The reason given for refusal of her request may have been a pretext to cover up racial discrimination, which may have misled her into not pursuing the issue. The New Jersey Supreme Court decided, in a decision approved for publication on December 10, 2010, 1....
November 2010
2 posts
4 tags
Question whether unemployment was voluntary in...
In Ungvarsky v. Ungvarsky, the New Jersey Appellate Division this week sent a case back to the trial court to determine whether or not the payor-father’s unemployment was voluntary, a necessary step before determining whether to impute income to him for child support purposes. The mother had petitioned to have income imputed to him, and her petition was denied by the trial court without fact...
5 tags
Conviction Expungement Does Not Remove Bar to...
In the Matter of the Expungement Petition of D.H., decided on 10/27/10 by the NJ Supreme Court, it was held that D.H. met the criteria for expungement pursuant to N.J.S.A. 2C:52-1 but that the forfeiture of public employment statute, N.J.S.A. 2C:51-2, was separate and forfeiture is not automatically revoked with the expungement. D.H. was a public official who pleaded guilty to a disorderly persons...
October 2010
7 posts
5 tags
No attorney-client privilege for in-house counsel...
Currently, attorneys in the US enjoy the attorney-client privilege; ie. communications between a client and an attorney are not admissable. The privilege rules of the jurisdiction are applied, though some courts have held that the party asserting the applicability of a foreign privilege has the burden of proving it. If a party does not asset a foreign privilege, the courts will use a conflict of...
12 tags
Post Judgment Asset or Liability
In Whissell v Whissell, the Appellate Court of NJ held that an asset not included in the PSA is not automatically subject to equitable distribution. Rather, a plenary hearing (a trial) is necessary to determine if distribution of the asset in the context of the entire agreement is “fair and just.”
In the opinion of the writer herein, this ruling would likewise apply to a liability...
9 tags
Certificate of Authority Only Needed for...
New Jersey Courts have finally clarified that a certificate of authority is only needed in New Jersey if a company is engaged in intrastate commerce. See Bonnier Corporation v Jersey Cape Yacht Sales, Inc., No. A-2404-09T2, App. Div 101310. Bonnier relied on the US Supreme Court decision of Eli Lilly & Co., v. Sav-on Drugs, Inc., 366 U.s. 276, 81 S.Ct. 1316 (1961), which case determined...
4 tags
Global Injunction against "Don't Ask - Don't Tell"
U.S. District Judge Virginia Phillips in Riverside, California has issued a worldwide injunction against the enforcement of “Don’t Ask - Don’t Tell,” the Federal law which banned open homosexuals from service in the U.S. Armed Forces. Judge Philips held the law unconstitutional on September 9, 2010. The injunction bars the Armed Forces from discharging service men and women...
7 tags
Sibling visitation
The Court can force a biological or adoptive family to permit sibling visitation if the Court finds that the visitation is necessary to avoid harm to the child being visited or visiting. See In the Matter of D.C. and D.C., Minors (2010)
Gabrielle L. Strich, Esq.
Call us with more questions at 732-438-3880 or visit our web site at www.strichlaw.com.
Disclaimer: Any and all information...
6 tags
Residency requirement may not be valid
The residency requirement of many municipalities may not be valid. If the residency requirement causes a disparate impact on applicants, the municipality must be able to show business necessity or else the requirement will not be upheld. See NAACP v North Hudson Regional Fire and Rescue (2010).
Gabrielle L. Strich, Esq.
Call us with more questions at 732-438-3880 or visit our web site at...
7 tags
Nursing mothers protected at work by amendment to...
In a little discussed provision of the Affordable Health Care Act of 2010, employers are required to give nursing mothers both “a reasonable break time… to express breast milk for her nursing child for 1 year after the child’s birth,” and “a place, other than a bathroom, that is shielded from view and free from intrusion… which may be used… to express...
September 2010
1 post
8 tags
Implied covenant of good faith and fair dealing
New Jersey case law provides that in a case of quasi-contract or implied contract of employment, the employee is entitled to the implied covenant of good faith and fair dealing. However, a new case, Saccomanno v Honeywell International, Inc. provides that if there is a written employment contract, the covenant of good faith and fair dealing does not apply.
A quasi or implied contract exists where...
August 2010
7 posts
11 tags
Reverse Mortgage Options
Reverse mortgages are to enable homeowners aged 62 and older to borrow against the equity in their home without having to make monthly mortgage payments as is normally required in a traditional mortgage or home equity loan. In a reverse mortgage, funds are advanced to the borrower and interest accrues, but the outstanding balance is not due until the last borrower leaves the home, sells or passes...
4 tags
Voluntary Underemployment for Child Support...
In Paulus v. Paulus, the New Jersey Appellate Division remanded for a plenary hearing to determine whether defendant was voluntarily underemployed and, if so, whether a higher level of income should be imputed when calculating his child support obligation. The plaintiff appealed from a post-judgment Family Part order reducing defendant’s obligation to pay child support, which was computed...
8 tags
WHAT DOES AN ARBITRATION CLAUSE IN AN EMPLOYMENT...
An arbitration clause in an employment agreement means that any employment dispute must be handled through arbitration rather the courts. Case law has upheld such clauses as valid and binding. Most arbitrations are handled by one arbitrator, though there can be a panel of arbitrators, depending on the language in the arbitration clause. The source of the arbitrators, such as American Arbitration...
8 tags
Child support not retroactive
Child support can only be modified back to the date of filing the motion requesting a change in child support. This is true even if the circumstances are such that the court would agree to the change on an earlier date. In Bessinger v Klich, App. Div., 20-2-9096 decided 8/10, the defendant went on social security disability in June 2005, which created a substantial decrease in his income. He...
8 tags
Shareholder rights to see corporate minutes
Under the NJ Business Corporation Act (N>J>S.a. 14A:5-28(4)), a shareholder can see the corporation’s board and/or executive committe minutes so long as the shareholder has a proper purpose to inspect them. However, the review of the minutes is limited to the portions relevant to the shareholder purpose. This permissible review of minutes is not the same as a discovery request in...
TEMPORARY VS. PERMANENT CHANGES OF CIRCUMSTANCE
It is well - settled that a Court may reject requests for alimony and child support modification based on circumstances which are only temporary, voluntary or which are expected but have not yet occurred.
However, in two fairly recent unpublished cases, the Appellate Division has recognized the effect of the economy on certain industries in determining whether a change of circumstances is...
4 tags
Permanent Alimony
In a new unpublished decision, Rossi v. Rossi, #A-4179-08T (N.J. Appellate Division 7/30/10), the Appellate Division reiterated the standard for an award of permanent alimony. The Court held that in a 14 year marriage where the wife had worked part time in retail for under $10 per hour, and the husband had worked his way up to a supervisory position and made 16 times more than the wife, permanent...
July 2010
8 posts
6 tags
New Palimony statute - palimony agreements must be...
In a legislative reverse of case law on the topic, the NJ legislature passed an amendment to R.S.25:1-5, stating that among the promises which are not binding unless in writing is “h. A promise by one party to a non-marital personal relationship to provide support or other consideration for the other party, either during the course of such relationship or after its termination.” In...
7 tags
NJ Supreme Court calls attack on Civil Union law...
The NJ Supreme Court (in a 3 to 3 decision) sent an attack on the Civil Union Act back to Superior Court yesterday, saying that not enough of a “trial-like” record had been established to hear plaintiffs’ motion for enforcement of litigant’s rights. The Civil Union law was passed in response to the NJ Supreme Court’s order in Lewis v. Harris, 188 N.J. 415 (2006),...
10 tags
CONTRACT BREACH AND SUMMARY JUDGMENT
If parties have material facts in dispute in contract litigation, the Court cannot grant summary judgment. Summary judgment is when the Court rules in the requesting party’s favor based on the law and facts not in dispute. When granted, it cuts short and ends litigation. However, it is difficult to obtain summary judgment early in litigation because material facts are usually in dispute. ...
7 tags
INCREASED RISK FOR SECURITIES LAW VIOLATERS
Security law related businesses are at increased risk for violations. The soon-to-be-signed Dodd-Frank Act financial reform package creates a new whistleblower program with potentially huge cash rewards for individuals who provide information about securities law violations to the Securities and Exchange Commission. The whistleblower program also covers violations of the Foreign Corrupt...
7 tags
Hang on to your divorce papers in case you need to...
Did your lawyer tell you to keep all your divorce papers in a safe place so you can find them again easily? Here’s one of the reasons for it: If you need to make a motion to modify a support obligation later on, you can’t do so without filing both a current case information statement and the original case information statement filed in your divorce action, under NJ Rules of Court Rule...
14 tags
CHILD SUPPORT MODIFICATION
If there is a change of circumstances, child support may be modified. In Smith v Smith, July 2010, the court held as follows:
If there is insufficient evidence on the record, the Court must provide for discovery and hold a plenary hearing or trial to get further needed information.
Unilateral stopping child support payments is a prima facie change of circumstances.
Legal fees are owed by the...
7 tags
YOU DON’T GET BOTH
The Appellate Court has ruled that an individual cannot get both disability benefits and workers’ compensation benefits for the same time period. The employee must pay back the disability benefits received for the duplicate period. See Ottens v Board of Review, July 2010.
Gabrielle L. Strich, Esq.
Call us with more questions at 732-438-3880 or visit our web site at www.strichlaw.com.
...
11 tags
WIN SOME, LOSE SOME IN UNEMPLOYMENT COMPENSATION
If you are late on filing an appeal without “good cause,” you will not succeed in the appeal of your unemployment compensation denial. The Appellate Court will not consider the merits of your appeal with a late filing, as per the Levy v Board of Review decision in July 2010.
On the other hand, if a teacher substitutes for another teacher’s sick leave, then the substitute teacher is eligible for...
June 2010
2 posts
5 tags
SCOTUS Hands down Bad News for Consumers and...
Arbitrators themselves get to decide if an arbitration agreement is unconscionable, the U.S. Supreme Court decided on Monday. This will make it harder for consumers and employees to challenge the fairness of arbitration agreements. The court held 5-4 in Rent-A-Center, West v. Jackson, that where an arbitration agreeement explicitly delegates to the arbitrator the issue of whether an arbitration...
5 tags
Over 600 NLRB Cases were Wrongly Decided, says...
The U.S. Supreme Court ruled on Thursday that the National Labor Relations Board (NLRB) did not have the authority to issue over 600 decisions it issued in the last 2 years. The NLRB has had three vacancies on its five member panel for two years, and requires a working group of three members to issue decisions. A quorum of two in a working group can issue a decision, but not, the Supreme Court...
May 2010
1 post
11 tags
DOCTOR WITH HOSPITAL PRIVILEGES IS NOT AN EMPLOYEE...
A nurse at Bayshore Community Health Services was not allowed to sue the hospital for a hostile work environment when the doctor in question only had privileges at the hospital because the privileges do not make the hospital the doctor’s employer. As such, the hospital cannot be held vicariously liable for the doctor’s actions. Further, the alleged conduct of defendant doctor did not rise to the...
April 2010
5 posts
13 tags
Debt Owed to Spouse Via Mortgage Is Enforceable
In Horn v Horn, 20-2-7698 (April 2010), Wife filed a motion to set aside the Marital Settlement Agreement so that she didn’t have to pay the debt to her former husband. The debt was secured with a mortgage in favor of the Husband. The court found that Husband’s mortgage was enforceable. The court further found that 1) Wife’s attorney could testify without violating attorney-client privilege...
21 tags
MODIFICATION OF CHILD SUPPORT AND/OR ALIMONY
Once a party demonstrates a permanent, involuntary change in financial circumstances (including a reasonable job search, both in depth and length), that party may file a motion for reduction of child support and/or alimony. However, the party will probably be required to reimburse insurance premiums paid by the other party so that the policy did not lapse. See Ray v Ray, App. Div....
10 tags
ARBITRATION WAIVES CLAIMS UNDER OTHER STATUTES
In Curtis v Cellco Partners (4/10), the Court held that claims under the Consumer Fraud Act fall within the scope of the arbitration clause even if the agreement does not included a specific waiver of statutory claims. Thus, parties entering into arbitration should assume that for practical purposes the decision cannot be appealed nor will the parties be allowed to litigate other claims...
9 tags
FMLA Leave: an Employee's Word Counts!
In a recent decision, the United States 3rd Circuit Court of Appeals held that in determining whether an employee was sufficiently incapacitated to warrant protecting her under the Federal Medical Leave Act (FMLA), the employee’s own word as to her illness was enough to raise a genuine issue of material fact. In Schaar v. Lehigh Valley Physicians, the 3rd Circuit held that an employee who...
4 tags
No Products Liability Claim for Genetic Defects in...
In Donovan v. Idant Laboratories, the Third Circuit of the U.S. Circuit Court of Appeals held that genetic defects in sperm from a sperm bank cannot form the basis for a products liability suit. Suit was brought by a mother and daughter where the daughter had “Fragile X syndrome,” a mutation which causes a number of problems, including mental retardation and behavioral disorders. The...