2015 update Wills and Estate Planning- Free Seminar Wednesday Jan 14

Did you get divorced or separated in 2014? Remender to update your estate planning

2015 update Wills and Estate Planning- Free Seminar                                  

Wednesday Jan 14          12:15-1:00 PM and again

  5:15pm-6pm

Law Office of Kenneth Vercammen, 2053 Woodbridge Ave, Edison, NJ 08817

COST: Free if you pre-register by email. Complimentary materials provided at 12:00 sharp. We previously held this seminar for the Metuchen and Edison Adult schools. This program is limited to 15 people. Please bring a canned food donation, which will be given to the St. James Food Bank located on Woodbridge Avenue in Edison, NJ. Please email us if you plan on attending or if you would like us to email the materials.

SPEAKER: Kenneth Vercammen, Esq.

                 (Author- Answers to Questions About Probate)

The new NJ Probate Law made a number of substantial changes in Probate and the administration of estates and trusts in New Jersey.

Main Topics:

1. The New Probate Law and preparation of Wills                

2. 2014 changes in Federal Estate and Gift Tax exemption

3. NJ Inheritance tax $675,000

4. Power of Attorney                       

5.  Living Will                                           

6.  Administering the Estate/ Probate/Surrogate               

7.  Question and Answer                   

       COMPLIMENTARY MATERIAL: Brochures on Wills, "Answers to Questions about Probate" and Administration of an Estate, Power of Attorney,  Living Wills, Real Estate Sales for Seniors, and Trusts.

       Co-Sponsor: Middlesex County Estate Planning Council

To attend or for Information: Mike McDonald 732-572-0500

or email VercammenLaw@Njlaws.com

Can’t attend?  We can email you materials

Send email to VercammenLaw@Njlaws.com

10 Estate Planning Ideas for Divorced Persons

         By Kenneth A. Vercammen, Esq

         There may come a time when a parent is unable, due to physical or mental incapacity, to take care of her minor children. If a parent dies, the minor children will need a guardian. In these circumstances, those caring for the children, as well as the courts will need direction. By writing and executing a Will, which includes instructions on guardianship one may select someone, either individually or jointly, with the legal authority to act for minor children and assume control over the assets of the children. Estate planning, which includes the execution of a Will, is just as important for moms with minor children as they are for senior citizens.

Where there’s No Will …

    If you do not write a Will, the State has already written one for you. Your assets go to whoever a state law says receives the assets, or to the government itself!  A Will should be a statement to the things you truly care about: your children, your parents, your friends, your Church and charities.  You can consider remembering your church or school.

         As average Americans, we work 80,000 hours in a lifetime, or 45 to 55 years.  In spite of all our resources and the assets we earn during our lifetime, the vast majority of Americans do not take the time to create the legal instructions to guide the court or a guardian upon their death. National statistics indicate that more than 50% of Americans die without leaving a Will . In the absence of a Will  or other legal arrangement to distribute property at death, the State must step in to administer the estate and decide who gets custody of your children and handles your money. This process is called the law of intestacy. The result can be lengthy delays in the distribution of your estate, court battles between relatives and your children being raised by someone you do not favor. Without a Will, your family will have to pay substantial costs for accountants, attorneys, bonding companies and probate fees.

If You Have No Will:                                           

          

         If you leave no Will or your Will is declared invalid because it was improperly prepared or is not admissible to probate:

1. People you dislike or people who dislike and ignore you may get some of your assets.

2. State law determines who gets assets, not you

3. Additional expenses will be incurred and extra work will be required to qualify an administrator-Surety Bond, additional costs and legal fees

4. You Lose the opportunity to try to reduce Estate Tax, State inheritance taxes and Federal estate taxes

5. A Judge determines who gets custody of children. A greedy brother or crazy mother in law could ask the court for custody.

6. It probably will cause fights and lawsuits within your family

7. The procedure to distribute assets becomes more complicated

8. The father of your children may try to control the assets of your children and not properly spend the money

         In planning, make sure your assets go to your loved ones or favorite charity, not an "ex". Therefore, you may wish to do the following:

1)  Have an Elder Law attorney prepare a Will to distribute your assets to the people you care about the most. If you already have a Will, prepare a new Will and have the old Will revoked. (Your estate planning attorney will explain this to you.)

2)  Prepare a Power of Attorney to select someone to handle your finances if you become disabled. Have your old power of attorney revoked.

3)  Select the correct beneficiary on assets you may own, such as stocks, bank accounts, IRA, and other financial assets.

4)  Change your beneficiary under your own life insurance, whether whole life insurance or term insurance.

5)  Contact your employer's human resources and change the beneficiary on life insurance, pension, stock options or other employee benefits. Note that if you are not yet divorced, your spouse may have to sign a written waiver permitting you to change beneficiaries.

6)  If you are not divorced or separated from the father, keep your personal papers at a location where an ex-spouse or the child's parent can't destroy them. 

7)  If you have minor children, nominate someone under a Will to serve as guardian to the children. Although the surviving parent obviously has first right of custody of children, they may not even want custody.

8)  Make sure the trustee for any funds designated for your children is the "right" trustee.

9)  Have your attorney prepare a prenuptial agreement, if you decide to get married, so your children can inherit your assets. ) If you get married, have a formal prenuptial agreement prepared by an attorney so your children, not new spouse, receives your assets if you pass away.

10)  In New Jersey, if you are still married and living with a spouse, under certain instances the surviving spouse has a right to "elect against the will". The disinherited spouse may like to elect against the Will and try to obtain one  third of the estate. Your attorney can explain how you can protect yourself and your children.           

ESTATE PLANNING TO PROTECT YOUR CHILDREN

Guardians

     Most individuals appoint the parent to act as Guardian of the person and property of their minor children.  It is suggested that your Will include a clause which provides that in the event the father predeceases you, or is unsuitable or ceases to act as Guardian of the person and property of your minor children, you appoint a trusted family member or close friend to act as successor Guardian of the person and property of your minor children.

Trustee

     Select a trusted person, a close relative or friends, who will invest and hold your children's money. In your Will you can instruct the Trustee to apply amounts of income and principal as they, in their sole discretion, deem proper for the health, maintenance, education, welfare, or support of your children or other minors. Direct that the trustee shall accumulate any income not needed for the above purposes, paying and transferring the portion held in trust to the beneficiary upon his or her attaining the age of majority or whichever age you select. 

 Children born after you sign the Will

        Many people direct that the provisions of their Will also applies to  afterborn children. Accordingly, if you have any additional children subsequent to the execution of this Will, then wherever you have designated only your named children, you intend that all of your children shall share equally in the relevant provisions of your  Will.

       In addition to having a formal Last Will and Testament individuals  are encouraged to have a Power of Attorney and also Living Will. Moreover, we also recommend they plan ahead and write messages to their family and anticipated executor detailing their specific desires regarding funeral and burial. Written instructions to your family and executor containing information and guidance will minimize uncertainty, confusion, and possible oversights following your death.

     Conclusion

        While the preceding article contains possible items to be discussed with your family, attorney  and executor, the article is by no means exhaustive.  A number of these items may not be applicable in your situation, and probably there are many others that are applicable.  The essential element is to spend some time now considering what you should tell those most closely associated with you to facilitate their handling of your affairs upon your death.

    About the Author:        

         Kenneth Vercammen is a Litigation Attorney in Edison, NJ, approximately 19 miles north of Princeton.  He often lectures for the American Bar Association and New Jersey State Bar Association on personal injury, criminal / municipal court law and practices to improve service to clients. He has published 125 articles in national and New Jersey publications on legal topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey. He has spoken on Wills and Elder law on numerous occasions to the Adult Community Schools in Metuchen, Sayreville, Old Bridge, South Brunswick and Edison/Clara Barton Seniors and Perth Amboy Seniors.

         In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters.  He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, arbitration hearings and contested  hearings.

         He is also a popular speaker for the American Bar Association's General Practice Section and Law Practice Management Section.

         Since 1985, his primary concentration has been on litigation matters.  Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court), with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA.

Call our office to schedule a confidential appointment 732-572-0500

KENNETH  VERCAMMEN & ASSOCIATES, PC

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

 (Fax)    732-572-0030

website: www.njlaws.com

Motion to vacate a Domestic Violence Restraining Order

Motion to vacate a Domestic Violence Restraining Order is based on NJ statute "2C:25-29" d.

Upon good cause shown, any final order may be dissolved or modified upon application to the Family Part of the Chancery Division of the Superior Court, but only if the judge who dissolves or modifies the order is the same judge who entered the order, or has available a complete record of the hearing or hearings on which the order was based.

11 FACTORS TO BE CONSIDERED IN DETERMINING WHETHER DEFENDANT HAS ESTABLISHED GOOD CAUSE to lift a domestic violence restraining order based on Carafagno v. Carafagno, 288 N.J. Super. 424 (1995)

1. Consent of Victim to Lift the Order

The first factor is whether the victim consents to dissolve the final restraining order. Where the victim has consented to lifting the restraining order and the court finds that the victim is doing so voluntarily, the court should dissolve the order without further consideration or analysis.

The Legislature intended that the courts should follow the victim's request to dissolve a domestic violence order or dismiss a domestic violence complaint without further legal analysis. When construing a statute, the court must follow the legislative intent, considering the policy underlying the statute. Lesniak v. Budzash, 133 N.J. 1, 8, 626 A.2d 1073 (1993). "A statute is not to be given an arbitrary construction ... but rather one that will advance the sense and meaning fairly deducible from the context." Id. at 14, 626 A.2d 1073.

436

*436 The policy of the Act is to provide broad protection for the victim. N.J.S.A. 2C:25-18. The court notes that the Legislature provided that a restraining order would be a civil remedy, N.J.S.A. 2C:25-18 (legislative declarations) and that the victim — not the state — files the complaint to obtain the restraining order, N.J.S.A. 2C:25-23 (victims to be notified of their rights to file a civil complaint for a restraining order); N.J.S.A. 2C:25-28(a) (procedures for the victim to file a civil complaint). Thus, when looking at the entire Act, the court concludes that the Legislature intended to provide broad protection to the victim.

If judges disregard the victim's wishes in determining whether to dismiss a complaint or dissolve a restraining order on the victim's request, this has the effect of discouraging victims from filing complaints when necessary. If the victim perceives that the courts would not be responsive to their request to dismiss the action, that victim or other victims may refrain from filing a domestic violence complaint in the future. Certainly, this is not what the Legislature intended. Thus, if the victim voluntarily requests the court to dismiss a domestic violence action or dissolve a restraining order, the court should grant the request without conducting any further legal analysis.

Here, Ms. Carfagno has not consented to dissolving the final restraining order. Thus, this factor points to continuing the restraining order.

2. The Victim's Fear of the Defendant

The Act protects victims from physical harm. Yet, physical safety is not all that the Legislature intended to protect. Recognizing that domestic violence occurs in a relationship where one party asserts power and control over the other, the victim is also protected from mental or emotional harm.

Fear of the defendant is the center of the cycle of power and control existing in domestic violence situations. Restraining orders have the effect of empowering the victim to stand up to the defendant. Thus, fear is important to consider.

437

*437 Fear of the defendant is especially important when the parties share children. In domestic violence cases involving children, the victim usually has custody of the children. See N.J.S.A. 2C:25-29(b)(11) (presumption that victim shall have custody of the children). It is also presumed that the custodial parent will act in the best interests of the children. Gubernat v. Deremer, 140 N.J. 120, 142, 657 A.2d 856 (1995). However, where the victim has continual fear of the defendant, the defendant's perceived control over the victim may attenuate the victim's ability to act in the best interests of the children. Moreover, fear might attenuate the ability of the victim to act in his or her own best interests. Accordingly, it is important to consider the victim's fear of the defendant.

A question remains whether the court should focus on subjective fear or objective fear. Subjective fear is the fear produced by and within the mind of the victim as the victim understands and communicates it. Objective fear is that fear which a reasonable victim similarly situated would have under the circumstances. The court holds that courts should focus on objective fear. The Legislature intended the courts to consider objective — not subjective — fear. Courts should not construe a statute in a manner that would leave a portion of the statute inoperative. State v. Reynolds, 124 N.J. 559, 564, 592 A.2d 194 (1991). The Legislature provided that final restraining orders may be dissolved upon good cause shown. N.J.S.A. 2C:25-29(d). The Legislature did not state that permission of the victim is required before the court can dissolve a final restraining order. Essentially, if the court were to consider only subjective fear, it would be merely determining whether the victim consented to dissolving the final restraining order without considering other relevant information. This is not what the Legislature intended because this interpretation would render the "good cause shown" language inoperative. Thus, the courts must consider objective fear — not subjective fear.

438

*438 Moreover, considering merely subjective fear would result in overly broad restraining orders. "The duration of an injunctive order should be no longer than is reasonably required to protect the interest of the injured party." Trans American Trucking Service, Inc. v. Ruane, 273 N.J. Super. at 133, 641 A.2d 274 (emphasis added). The court must balance the parties' individual rights when determining the breadth of the injunctive order. Id. If the courts were to merely focus on subjective fear alone, the scope of the injunction might be broader than is reasonably required to protect the victim and might unduly infringe the rights of the defendant. Thus, when determining whether good cause exists to dissolve a restraining order, the courts must determine whether the victim continues to fear the defendant, and to apply an objective standard for evaluation: would a reasonable victim similarly situated have fear of the defendant under the circumstances.

Here, the court has found that Ms. Carfagno continues to fear Mr. Carfagno and that a reasonable victim similarly situated would fear Mr. Carfagno. The court notes that, with the order in place, Ms. Carfagno was able to criticize Mr. Carfagno when he failed to pick up the child from school for visitation. Mr. Carfagno's failure to pick up the child was inimical to the child's best interests because the child waited at school for two hours before she was picked up. The court finds that, because Ms. Carfagno still objectively fears Mr. Carfagno, absent a final restraining order, she would have a diminished capacity to act in her or the child's best interest. Thus, this factor points to continuing the final restraining order.

3. Nature of the Relationship Between the Parties Today

The third factor is the nature of the relationship between the parties today. Here, the court must look to determine whether the relationship today is one that would allow the defendant to exercise control over the victim. Where the parties do not have children in common and have little other reason to

439

*439 contact each other, it would be more appropriate to dissolve a final restraining order. Where the parties have reason to contact each other, such as where the parties have children in common, it may be less appropriate to dissolve a final restraining order. Other factors for the court's consideration is the relationship of the parties at the time the order was entered. If, for example, there was a dating relationship when the order was entered and two years later when the application is filed, both parties are married to other persons, dissolution may be more appropriate. Certainly, the physical proximity of the parties to each other is another factor bearing upon the relationship. If the parties live in different areas, depending upon other factors present, dissolution may be appropriate.

In all cases, however, when considering the relationship of the parties, the court must determine whether there are indicia of control and domination exercised by the defendant over the victim in the limited amount of contact between the parties permitted under the final restraining order.

Here, the parties have a child in common. Moreover, the court has found that the parties have engaged in arguments in regard to the welfare of the child, which is within the scope of the limited contact permitted under the final restraining order. This leads the court to believe that the order has not been effective in breaking the cycle of control and domination. Thus, this factor leads the court to believe that the final restraining order should be continued.

4. Contempt Convictions

The fourth factor is the number of times that the defendant has been convicted of contempt for violating the final restraining order. The number of violations of the final restraining order gives an indication that the final restraining order is not totally effective in breaking the cycle of power and control exercised by the defendant. Here, Mr. Carfagno was convicted twice for violating the final restraining order. Both convictions involved

440

*440 Mr. Carfagno contacting and harassing Ms. Carfagno. Certainly, these convictions do not show that the cycle of power and control has been broken. Thus, this factor points to continuing the final restraining order.

5. Alcohol and Drug Involvement

The fifth factor is whether the defendant has a continuing involvement with drugs or alcohol. In 1994, 39% of all domestic violence incidents involved drugs or alcohol. Crime in New Jersey: Uniform Crime Report, 1994 at 189, 198. Alcohol alone was involved in 34% of all reported domestic violence cases. Id. Accordingly, drug or alcohol use is highly relevant in determining whether the victim still needs protection. Here, there is no evidence that Mr. Carfagno is involved with drugs or alcohol. Thus, this factor points to dissolving the final restraining order.

6. Other Violent Acts

The sixth factor is whether the defendant has perpetrated violent acts upon the victim or other persons. The defendant's violent nature as evidenced by other violent acts is relevant to whether the victim needs continued protection. See Richard J. Gelles, Ph.D., Regina Lackner, Glenn D. Wolfner, Men Who Batter, Violence Update, August 1994 at 10. ("Perhaps the most important risk marker ... is prior violent or abusive behavior. In the absence of clear or convincing change, past behavior is probably the single most reliable indicator of future behavior, and battering is no exception.") Here, there is no evidence before the court that Mr. Carfagno has engaged in other violent acts. Thus, this factor leads to dissolving the order.

7. Whether Defendant Has Engaged in Domestic Violence Counseling

The seventh factor is whether the defendant has engaged in domestic violence counseling. Counseling may be effective in breaking the cycle of power and control. "Without intervention or

441

*441 some form of change agent, the batterer is likely to continue battering." Id. Here, the defendant has not shown that he has successfully completed domestic violence counseling. Thus, this factor points to continuing the final restraining order.

8. Age/Health of Defendant

The eighth factor is the age and health of the defendant. In some cases of age or infirmity, it might be appropriate to dissolve the final restraining order. Here, the defendant is a physically fit male who is 33 years old. Thus, this factor points to continuing the final restraining order.

9. Good Faith of Victim

The next factor is the good faith of the victim in opposing the defendant's request to dissolve the final restraining order. The court is mindful that sometimes one party to a divorce action abuses the Act to gain advantage in the underlying matrimonial action. See, State v. L.C., 283 N.J. Super. 441, 449, 662 A.2d 577 (App.Div. 1995); Murray v. Murray, 267 N.J. Super. 406, 631 A.2d 984 (App.Div. 1993). Here, the court has found that Ms. Carfagno opposed Mr. Carfagno's request in good faith. Thus, this factor leads to the conclusion that the final restraining order should be continued.

10. Orders Entered by Other Jurisdictions

The final factor is whether the victim is protected from the aggressor by a "a verifiable order of protection from another jurisdiction." Under 18 U.S.C. § 2265(a), a restraining order entered in one state is entitled to full faith and credit by courts of another state. Thus, the fact that a foreign state has entered a restraining order protecting the victim from the aggressor must be known and considered by the court.

Here, the parties have not alleged that a foreign jurisdiction has entered a restraining order to protect Ms. Carfagno from Mr.

442

*442 Carfagno. Thus, this factor points to dissolving the final restraining order.

11. Other Factors Deemed Relevant by the Court

The court also needs to consider any other factors raised by the parties which, based upon the evidence presented, may show that good cause exists to dissolve the restraining order. In this case, the court concludes that there are no other factors which affect the court's judgment

       A restraining order cannot be expunged/erased. A Motion must be filed by the attorney to have the restraining order lifted. The Motion is filed in the county where the Order is filed.

Revised Procedures and Forms Regarding Applications to Modify a Court Order and Applications for Emergent Hearing November 18, 2011

Family - Non-Dissolution Matters (FD Docket) - Revised Procedures and

Forms Regarding Applications to Modify a Court Order and Applications

for Emergent Hearing

November 18, 2011

This Supplement to Directive # 08-11 (which was issued September 2, 2011) revises

the procedure and form included in that Directive with regard to Applications to Modify a Court

Order in non-dissolution matters (FD Docket). The revisions, made on the recommendation of

the Conference of Family Presiding Judges, are as follows:

1. The "Application to Modify a Court Order" form has been revised so as to

eliminate the "check box" option to request an emergent hearing (OTSC).

This revised form, a copy of which is attached to this memo, remains the

approved filing document for all FD post-dispositional applications.

2. Requests for an emergent hearing (OTSC) in an FD case will require the

litigant to file a separate document making that request. (That form

document is appended to Directive #08-11.) This modification to the

revised FD practices does not limit the right of a party to request an

emergency hearing. It is intended to avoid the misimpression by litigants

that an emergent hearing is the same as a routine request to reopen a

case for review of custody, parenting time, or child support.

3. Clear written instructions for requesting an emergent hearing will be

provided to every litigant who requests this relief. The instructions, which

are appended to Directive #08-11, apply both to initial complaints and to

applications to modify an existing case. The instructions in plain language

inform the filer (or the attorney representing the filer) that the appropriate

forms must be presented at the Non-dissolution intake location in the

Family Division and cannot be filed through the mail. The instructions also

RICll,Hd J, Hllgllcs Justice Complex 0 PO l3()x 037 • I renton. New Jersey 08625·0037

Supplement to Directive # 08-11

November 18, 2011

Page 2

encourage the filing party to use the "additional information form" to further

explain why they consider their case to be an emergency.

This Supplement to Directive #08-11 will be published as a notice to the bar. Notice will

be provided by the Family Practice Division concerning the availability in NJKiDS of the forms

referenced herein, The forms and instructions will be posted on the Internet for easy access

by the public (as well as posted on the InfoNet for staff access).

Questions

Directive # 08-11 Family – Non-Dissolution Matters (FD Docket) – Revised Procedures

Directive # 08-11  Family – Non-Dissolution Matters (FD Docket) – Revised Procedures 

Date: September 2, 2011 

This Directive promulgates revised filing and post-dispositional procedures for the Non-Dissolution (“FD”) docket type. The Judicial Council approved these revised procedures on the recommendation of the Conferences of Family Presiding Judges and Division Managers. Also relevant here are the amendments to Rule 5:4-4 that the Supreme Court adopted as part of the July 21, 2011 omnibus rule amendment order which became effective September 1, 2011. The forms referenced in the revised procedures as described below are appended to this Directive. 

The Non-Dissolution docket provides relief to never married parents seeking custody, parenting time, paternity, child support and medical support. It also serves couples seeking certain reliefs, such as financial support without dissolution of their union. Additionally, the Non-Dissolution docket includes non-parent relatives seeking custody, child support and/or visitation regarding minor children. Self-represented litigants comprise the majority of those filing in the Non-Dissolution docket. 

Efficient methods for processing Non-Dissolution cases are crucial to the operation of the court and to court customers seeking relief under this docket type. Having standardized statewide practices enables all court customers to have a clear and consistent understanding and a defined process for the resolution of disputes that fall under this docket type. 

The following procedures relating to Non-Dissolution cases are approved, effective September 1, 2011: 

All Non-Dissolution cases will be initially processed as Summary actions, with additional discovery at the discretion of the judge. 

Appearance of the parties for hearings is mandatory (with specific exceptions described below). 

Richard J. Hughes Justice Complex • P.O. Box 037 • Trenton, New Jersey 08625-0037 Directive # 08-11 September 2, 2011 Page 2 of 3 

Initial complaints and post dispositional applications must be submitted by attorneys and by self-represented litigants using the attached revised forms. The Non-Dissolution complaint will be posted as a packet with instructions on the judiciary website (www.njcourts.com). At present Non-Dissolution matters may not be filed electronically; thus these completed forms must be submitted by mail or in person at Family intake. 

The revised procedures distinguish between Non-Dissolution motions and the Dissolution motion process governed by R. 5:5-4 and R. 1:6-2. Attorneys and self-represented litigants will utilize the same process for initial Non-Dissolution complaints and for applications for post-dispositional activity. 

Non-Dissolution cases involve various issues where different methods of complementary dispute resolution (“CDR”) can be used. The screening of initial and post-dispositional Non-Dissolution applications for CDR options is important to ensure efficient case management. Use of all available CDR processes contributes to better customer service and the effective use of judicial resources. Each initial complaint and post-dispositional application should be screened based on the approved screening tool. This screening process does not replace a court order directing a case to be handled a certain way or management determining the court path of a particular case. 

A new complaint form for Non-Dissolution actions entitled “Verified Complaint or Counterclaim” and “Application for Modification of Court Order” (post- judgment) has been approved for use. That form is attached to this Directive. FV cases should utilize the “Application for Modification of Court Order” when the request to modify does not involve restraints. 

The revised forms include a certification and instructions for an optional written response, with service to the non-filing party. 

Initial service by mail pursuant to R. 5-4-4 (b) (1), which governs child support actions, has been approved for use in Non-Dissolution custody and parenting time filings. 

“Diligent Inquiry” must be conducted by the filing party when the non-filing party’s whereabouts is unknown, with certification of such inquiry to be submitted to the court. Instructions and forms on how to make such diligent inquiry will be provided to the filing litigant. Cases cannot proceed until certification with documentation of location efforts is submitted to the court, with the judge to determine the adequacy of the inquiry efforts made. 

The form of Summons has been revised so as to inform the responding party that failure to appear at the hearing may result in entry of a default order or awarding the plaintiff the requested relief. 

The “Order to Show Cause” process has been simplified and is included in the list of reliefs available in the revised forms, making a separate Order to Show Cause packet unnecessary. 

The request to relocate children has been created as a separate relief and is listed in the “Application for Modification of Court Order.” Each party will be able to advise the court as to their respective positions on the matter prior to the court hearing. 

Directive # 08-11 September 2, 2011 Page 3 of 3 

Incarcerated litigants are to use the post-dispositional application form to apply for modification of child support orders and for bench warrant review. The forms will be made available to prisons via electronic distribution and posting on the Judiciary website. For both initial and post-dispositional hearings, incarcerated litigants will be permitted to request a waiver of their appearance by checking a box on the forms. The court can decide the case on the papers submitted or may utilize whatever electronic means are available, such as video or telephone testimony, in lieu of physical appearance. 

Implementation of the revised Non-Dissolution practices will be in several phases. This Directive will be published as a notice to the bar. Guidance concerning the procedures will be issued to staff by the Family Practice Division along with plans for training for vicinage staff. Notice will be provided by the Family Practice Division concerning the availability of new forms in NJKiDS. The new forms and instructions will be posted on the Internet for easy access by the public (as well as being posted on the InfoNet for staff access). 

I am asking that each vicinage review its current Non-Dissolution procedures and prepare a plan for implementing the revised procedures set forth above. The vicinage implementation plan should consider the available CDR options, the intake process, and communication with the Bar, along with any barriers to implementation. The vicinages should submit their implementation plans to me by October 1, 2011. Thank you. 

Questions or comments regarding this Directive or the Non-Dissolution docket in general may be directed to Assistant Director Harry T. Cassidy or to Geraldine Washington, Chief, Family Practice Division, 609-984-0066. 

G.A.G. 

S

DV reserved where judge wrongfully advised defendant his testimony could be used against him in criminal case K.S., Plaintiff-Respondent, v. E.S.

DV reserved where judge wrongfully advised defendant his testimony could be used against him in criminal case K.S.,  Plaintiff-Respondent,  v.  E.S.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

_________________________________

October 3, 2014 OT FOR PUBLICATION 

Argued July 1, 2014 – Decided

Before Judges Espinosa and Kennedy.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FV-18-0942-13.

Snyder & Sarno, LLC, attorneys for appellant (Angelo Sarno, of counsel and on the brief; Jill D. Turkish, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant appeals from a final restraining order (FRO) entered against him under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:24-17 to -35. Defendant's estranged wife obtained the order after the Family Part found defendant had "intentionally caused a container of hot coffee to be spilled upon" plaintiff. The judge's determination is set forth in a very terse statement from the bench that is conclusory and fails to undertake the analysis required by Silver v. Silver, 387 N.J. Super. 112(App. Div. 2006). Defendant argues that the facts established at the FRO hearing "amounted to domestic contretemps" and failed to support a finding of domestic violence under the PDVA, thereby requiring reversal of the FRO. He adds that the trial judge misstated the law pertaining to the testimony of a party at trial. For reasons stated herein, we reverse the FRO and remand the matter to the Family Part for a new trial.

Because there will be a new hearing in the Family Part, we limit our statement of facts to a summary of the parties' averments, and by doing so, we imply no conclusions with respect to same.

I.

Plaintiff and defendant were married in September 2010, and lived in Somerset County with their children from prior marriages or relationships. No children were born of their marriage, however.

Apparently, strains developed in the marriage, and on the morning of June 9, 2013, defendant asked plaintiff if she were "having an affair." Plaintiff denied the implied accusation and the parties shortly "calmed down" and began discussing their relationship. Defendant then left to buy donuts for the children and returned to the house with donuts for them and containers of coffee for plaintiff and himself.

Plaintiff was still in bed when defendant returned and he placed her coffee on her bedside table. At this point, according to plaintiff, defendant resumed their earlier conversation, and the parties began to argue. Plaintiff attempted to leave the room, and defendant "lunged at [her] and he grabbed the coffee and he tilted it and threw it onto [her]." Plaintiff said the coffee did not "hurt" at first, but after several hours, after speaking with a friend, she went to the hospital where she received treatment for a severe burn.

Hospital personnel contacted the police department, and, after speaking with police, defendant filed a domestic violence complaint, as well as a complaint in municipal court against defendant for simple assault, N.J.S.A. 2C:12-1(a)(1). The domestic violence complaint stated that defendant "poured a hot cup of coffee" on plaintiff, but denied any prior history of domestic violence.

Defendant testified that when he returned from the store, plaintiff became upset when she learned he had contacted the person with whom he suspected she was having an affair, and the parties began arguing. At some point, defendant threw a pillow or a rolled-up shirt at plaintiff, but did not realize "she had the coffee in her hands," thereby causing the coffee to spill onto her. He said he did not lunge at plaintiff and that he was "maybe ten feet away" from plaintiff when he threw the item at her.

After the parties testified, the trial judge found it was "clear . . . that on June 9, 2013, an act of domestic violence occurred when [defendant] intentionally caused a container of hot coffee to be spilled on" plaintiff causing a "severe and painful" burn. He added that defendant acted intentionally "after having stewed emotionally over an alleged affair" and was "wound up to the extent that he doesn't know what happened at that time." The judge then announced he would enter the FRO against defendant.

This appeal followed.

II.

We ordinarily accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). Similar deference is accorded to the factual findings of those judges following an evidentiary hearing. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Finally, a judge's purely legal decisions are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (quotingManalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)); Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

Substantively, a trial court hearing an application for an FRO must make two determinations: whether the plaintiff has proved by a preponderance of the evidence that defendant committed an act of domestic violence; and, if so, whether a restraining order is necessary to protect the plaintiff. Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006). In making the second determination, the court must consider the factors elucidated in N.J.S.A. 2C:25-29(a)(1) to -(6), and, as noted, must determine that issuance of an FRO is necessary to protect the victim from further acts of violence. Ibid. Those factors include consideration of any previous history of domestic violence between the parties, whether there is evidence of immediate danger to the victim, and the best interests of the victim and any child. Id. at 127-28.

We recognize that Silver does not require an extensive analysis of the necessity for the entry of an FRO in all cases. Indeed, we observed in Silver that this question is "often perfunctory and self-evident." 387 N.J. Super. at 127. Nonetheless, Silver does not exempt a trial judge from making a determination of the necessity for an FRO altogether in cases like that at bar. See N.J.S.A.2C:25-29(b), which states that in proceedings for restraining orders, "the court shall grant any relief necessary to prevent further abuse" (Emphasis added).

Also, two additional aspects of the proceedings in the Family Part require reversal of the FRO and a remand for a new trial. First, the parties were unrepresented and the trial judge permitted plaintiff to testify with respect to prior history that was not the subject of notice to defendant. Second, the judge advised defendant prior to testifying that anything he said during the domestic violence hearing could be used against him in the "criminal" action, despite the prohibition of using such testimony set forth inN.J.S.A. 2C:25-29(a). These factors, in addition to the utter absence of any Silver analysis, require us to reverse the FRO and remand the matter to the Family Part for a new trial.

Despite the fact that plaintiff's complaint referenced no prior instances of domestic violence, plaintiff nonetheless testified that defendant had in the past repeatedly called her vile names and "spit in [her] face." Although the judge did not reference these averments in his determination, ordinary due process protections apply in the domestic violence context. H.E.S. v. J.C.S., 175 N.J. 309, 321-23 (2003). "At a minimum, due process requires that a party in a judicial hearing receive 'notice defining the issues and an adequate opportunity to prepare and respond.'" Ibid. (quoting McKeown Brand v. Trump Castle Hotel and Casino, 132 N.J. 546, 559 (1993)). In J.D. v. M.D.F., 207 N.J. 458, 479-80 (2011), the Supreme Court observed:

Plaintiffs seeking protection under the [PDVA] often file complaints that reveal limited information about the prior history between the parties, only to expand upon that history of prior disputes when appearing in open court. And it is frequently the case that the trial court will attempt to elicit a fuller picture of the circumstances either to comply with the statutory command to consider the previous history, if any, of domestic violence, see N.J.S.A. 2C:25-29(a)(1) or to be certain of the relevant facts that may give content to otherwise ambiguous communications or behavior . . . ensuring that defendants are not deprived of their due process rights requires the trial courts to recognize both what those rights are and how they can be protected consistent with the . . . goals of the act. To begin with, trial courts should use the allegations set forth in the complaint to guide their questions of plaintiffs, . . . . That does not mean that trial courts must limit plaintiffs to the precise prior history revealed in the complaint, because the testimony might reveal that there are additional prior events that are significant to the court's evaluation, particularly if the events are ambiguous. Rather, the court must recognize that if it allows that history to be expanded, it has permitted an amendment to the complaint and must proceed accordingly.

The Court added that some defendants know the history that the plaintiff recites and some parties will be well prepared regardless of whether the testimony technically expands upon the allegations of the complaint. Id. at 480. Some others will not and, "[i]n all cases the trial court must ensure that the defendant is afforded an adequate opportunity to be apprised of those allegations and to prepare." Ibid.

J.D. teaches that if the trial court permits a plaintiff to, in effect, amend a complaint, the court should also liberally grant adjournments in order to meet those allegations. Here, however, the judge was silent on the issue of the purported prior instances of domestic violence, and while neither party sought an adjournment to address the question, neither party, of course, was represented by counsel. The better practice in such instances would have been to ask the parties if they wanted time to address these issues, given their importance in a domestic violence proceeding.

Finally, we cannot know how the trial judge's blanket admonition to defendant that if he elected to testify in the domestic violence hearing, "anything you say may be used against you in a criminal proceeding" may have affected his testimony. This advice is not only incorrect, but also may have chilled defendant's statements to the court.

N.J.S.A. 2C:25-29(a) provides:

If a criminal complaint arising out of the same incident which is the subject matter of a complaint brought under [the PDVA] has been filed, testimony given by the plaintiff or defendant in the domestic violence matter shall not be used in the simultaneous or subsequent criminal proceeding against the defendant, other than domestic violence contempt matters and where it would otherwise be admissible hearsay under the rules of evidence that govern where a party is unavailable.

Although the testimony of a party in a domestic violence hearing is available for impeachment purposes in a subsequent criminal proceeding, State v. Duprey, 427 N.J. Super. 314, 323 (App. Div. 2011), the cited statute explicitly prohibits its use in a "simultaneous or subsequent criminal proceeding against the defendant" subject to narrow exceptions.

In the present case, the trial judge's statement to defendant explained none of the principles we enunciated in Duprey. Given our other misgivings about the trial in this matter, our uncertainty about whether defendant may have limited his testimony or proofs at trial in reliance upon the judge's imprecise statement of the law pertaining to such testimony, reinforces our determination that the FRO should be reversed and the entire matter remanded for a new trial.

Reversed and remanded for a new trial. We do not retain jurisdiction.