Newark Business, Commercial and Family Law Blog

Divorced and divorcing parents in New Jersey are often shocked to learn that they may be legally obligated to provide their children in divorce that which they are not obligated to provide in marriage: namely a college education. The full extent of that obligation, however, is not always clear. In the case of Sciacca v. Hagarty, 2012 WL 127616 (N.J.Super.A.D.), the New Jersey Appellate Division recently held that a divorced father was still obligated to pay his daughter's college expenses despite the fact that during her senior year of high school she moved out of his house and insisted on residing exclusively with her mother following a serious conflict with her father. In so doing, she effectively severed her relationship with him. For the twelve years prior to that point, the daughter lived with both her mother and father on an equal basis. In fact, the mother paid the father child support.

When the daughter received her college acceptance later that year, the father notified the mother that he was not going to contribute to the daughter's college expenses because, in part, she had been "very abusive to [him] both physically and verbally [.]" Given her malicious conduct toward him, the father did not think it was fair to reward her with an education at the college of her choice. The father also claimed an unrelated lack of financial ability to share in the expenses. Ultimately, the mother filed a motion to compel the father's financial contribution.

In opposition to the motion, the father relied heavily on the case of Gac v. Gac, 351 N.J.Super. 54 (App. Div. 2002), which held that a parent is not be obligated to contribute to the college expenses of a child where the circumstances between them would make such a payment inequitable. Both the lower court and the Appellate Division found, however, that Gac was distinguishable from the present case. Specifically, the Appellate Division found that the "inequity" in Gac was based upon the fact that the father, despite his best efforts and desires, was denied any relationship with his children since the time they were 5 and 8 years old. Conversely, although there was a serious rift with his daughter, the appeals court emphasized the fact that Mr. Hagarty was previously involved in his daughter's college plans and actively participated in the application process while she lived with him until her senior year of high school. Accordingly, the Appellate Division ruled that, despite experiencing a serious conflict, "the relationship between [the] parent and child is not so poor that to compel college contribution would be inequitable."

As is the case with so many other aspects of divorce litigation, there is no precise definition of what constitutes circumstances that would make it inequitable to require a divorced or separated parent to contribute to the college expenses of an estranged child. Rather, it remains a question of degree left to the judgment of the trial court on a case by case basis.

Contributed by Jeffrey W. Plaza, who is a partner of the firm practicing in the area of divorce and family law.

Bruce Gudin, Esq. will give a seminar on Thursday, October 20, 2011 entitled "A Comprehensive Roadmap to Handling Commerical Landlord Tenant Issues".  Serving on the faculty with Bruce will be Lori I. Meyer, Esq. and Jonathan Mehl, Esq.  The seminar will be given at the Wilshire Grand in West Orange.  Further information can be obtained by going to www.NJICLE.com or emailing Bruce at Bruce@lep-lawyers.com.

As of Wednesday, August 17, 2011 the Superior Court of New Jersey lifted the foreclosure moratorium that prevented Bank of America, JP Morgan Chase, City Bank, Wells Fargo and West One from completing and/or commencing foreclosure actions in New Jersey. Earlier this year, the New Jersey Supreme Court placed a moratorium on these companies from doing foreclosures. As a result, the number of foreclosures filed in New Jersey fell from 58,000 in 2010 to 6,000 through July of 2011. Chief Justice Rabner's Order helped save thousands of homeowners from the threat of their homes being improperly foreclosed.

In the past two weeks, the Appellate Division has decided two cases which will bolster proper adherence to the New Jersey Fair Foreclosure Act N.J.S.A. § 2A:50-1 et seq.

In Bank of New York v. Laks, A-4221-09T3 the Appellate Division held that where a Defendant Mortgagor raises a valid defense that the Notice of Intent was deficient under the Fair Foreclosure Act, N.J.S.A. § 2A:50-53 the foreclosure must be dismissed. In that case, Countrywide Home Loans was the Bank of New York's loan servicer. Countrywide Home Loans acting on behalf of the Bank of New York sent the Notice of Intent to Foreclose.

The notice did not inform the homeowner that the Bank of New York was actually the owner of the Note, nor did it provide the homeowner with the Bank of New York's address and phone number. The Appellate Division held, "a Notice of Intention is deficient under N.J.S.A. § 2A:50-56(c)(11) if it does not provide the name and address of the lender as defined in the Fair Mortgage Foreclosure Act. A defendant who objects to inadequacy of the Notice on that basis prior to entry of judgment is entitled to dismissal of the foreclosure complaint without prejudice". As a result of this case, a Notice of Intent to Foreclose must be clear as to who the homeowner should deal with in resolving default disputes.

In the case of Deutsche Bank National Trust Co. vs. Mitchell, A-4925-09T3, the Appellate Division reversed summary judgment granted to the bank, and vacated the Sheriff's sale. Deutsche Bank filed its Complaint one day before actually obtaining an assignment of the Mortgage and actual Note. Within one month of filing the initial Complaint Deutsche Bank filed an Amended Complaint stating that the Note and Mortgage had been assigned to it. The Appellate Division reversed the trial court's order granting summary judgment, and voided the Sheriff's sale which already occurred. The Appellate Division held, "Deutsche Bank did not have standing when it filed the original Complaint because it did not have an assignment nor did it demonstrate that it possessed a Note at that time."

As a result of these two cases, banks must cautiously adhere to the Fair Foreclosure Act. If a homeowner receives a Letter of Intent from its mortgage company, he or she should contact the mortgage company and request information regarding any assignment and confirmation that the foreclosing bank has possession of the original note. If a homeowner has difficulty understanding the terms of the Notice of Intent it is in his or her best interest to hire an attorney with knowledge of the Fair Foreclosure Act to advise the homeowner and possibly defend the homeowner if the bank commences foreclosure.

We live in an age when our every movement seems to be tracked by cell phones, E-Z pass, surveillance cameras and even digital photographs to the point where you can almost hear the 1980's hit "Somebody's Watching Me" playing in the background.  A recent New Jersey court decision has now addressed the use of such technology by one spouse who suspects the other of infidelity.

The New Jersey Appellate Division held that a private investigator did not invade the plaintiff's privacy by instructing his wife to place a global positioning system  ("GPS") unit in the jointly owned vehicle her husband regularly drove.  The GPS device ultimately allowed the investigator to track the location of the plaintiff where he was observed driving with a female passenger who was not his wife.  Thereafter, the plaintiff's wife commenced divorce proceedings.  Following the divorce, the plaintiff sued the private investigator for an invasion of his privacy.  The trial court dismissed the case on a motion for summary judgment finding that Plaintiff's Complaint had no merit under the controlling law. 

In Kenneth R. Villanova v. Innovative Investigations, Inc. and Richard Leonard, 2011 WL 2638134, the New Jersey Appellate Division affirmed the trial court decision dimissing the plaintiff's case.  Specifically, the Appellate Division held that the private investigator did not commit an "intrusion on plaintiff's physicial solitude or seclusion, as by invading his or her home, illegally searching, eavesdropping, or prying into personal affairs" as there was no evidence to suggest that the GPS device did anything other than track his vehicle's movement on public streets and or other areas in plain view.  "There is nothing in his [private investigator's] report that could support an inference that any surveillance of plaintiff extended into private or secluded locations that were out of public view and in which plaintiff had a legitimate expectation of privacy."  In that regard, the court explained that just as there is no liability for invasion of privacy by observing or even photographing someone walking in public, a "person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another." 

Interestingly, the plaintiff had also asserted an identical claim of invasion of privacy against his ex-wife in the divorce case, but he later dropped it as part of the settlement of that matter.  Regardless, in the absence of additional evidence, the Appellate Division's ruling would presumably have also barred the plaintiff's direct claim against his wife.

Suspicious spouses, however, might want to think twice before running out to the electronics store as this case does not create absolute immunity for the use of GPS tracking in this context.  Under the court's rationale, the use of a GPS device to secretly track another person's vehicle to a private and secluded location might still arguably constitute an invasion of privacy.