Saturday, February 22, 2014

Child Support in New Jersey: A Brief Overview of Related Rights and Obligations

Child Support in New Jersey: A Brief Overview of Related Rights and Obligations
 
By: Justin M. Smigelsky, Esq.
 
            As is generally understood, New Jersey law mandates that some provision be made to insure the maintenance and well-being of minor children following the disruption of family life by separation and/or divorce of the parents.1 A common misunderstanding as to child support, however, regards a parent’s rights to waive or seek modification of a child support obligation.
 
It is well-settled under New Jersey law that the right to receive child support belongs to the child.2 As stated in Ordukaya v. Brown,3 “the obligation of all parents to provide, to the degree possible, for their children is fundamental, and cannot therefore be destroyed by the errant, capricious, or uninformed actions of the other parent.”4 Therefore, due to the State’s interest in assuring a proper level of support for all children, the right to child support cannot be waived by the custodial parent.5
 
Children in New Jersey have the right “to be supported at least according to the standard of living to which they had grown accustomed prior to the separation of their parents.”6 “In determining both the amount of money necessary to raise children of divorce and the division of that obligation between working custodial and non-custodial parents, ‘the talisman of concern is always the welfare of the child.’”7
 
New Jersey courts have discretion in making child support awards upon a proper application and consideration of the child support guidelines. Child support obligations are “mainly determined by the quality of economic life during the marriage, not bare survival.”8 The law seeks to prevent children from becoming the economic victims of divorce or separation, however, in most instances it is often difficult to maintain the pre-separation standard of living. Accordingly, a child also has the right to share in a parent’s good financial fortunes,9 and “the law is not offended” if any incidental benefit (e.g. better car, larger home, etc.) is obtained by the primary caretaking parent who receives greater amounts of child support as a result.10 To that end, it is often difficult to draw the line between a child’s needs commensurate with lifestyle and overindulgence. One illustrative case is Strahan v. Strahan, involving Giants star Michael Strahan, in which the Appellate Division reversed and remanded the trial court’s child support award of $235,984.00 per year for the court’s failure to make findings concerning the reasonable needs of the children.11
 
Once a child support obligation has been established by the court, either party may seek modification based on changed circumstances. It should be noted that a modification application may be based on either a positive or negative change in circumstances and, in regards to a request for an upward modification of child support, the custodial parent brings the action for modification on behalf of the child and not in his or her own right.12 In one of the leading cases on the issue of support modification, Lepis v. Lepis, the Court provided several examples of “changed circumstances,” including an increase in the cost of living, an increase or decrease in the supporting spouse’s income, and a parent’s illness, disability, or infirmity arising after the original judgment.13 In any event, the necessary showing is always the “best interests of the children.”14
 
This article is for information purposes only, and is neither legal advice nor the creation of an attorney-client relationship. If you are involved in a child custody or child support matter, you may have questions about your child’s rights, your parental rights and obligations, or about the rights and obligations of your child's other parent. If so, it is important to contact an experienced family law attorney.
 
End Notes
 
1.       See Pascale v. Pascale, 140 N.J. 583 (1995), and Sheridan v. Sheridan, 247 N.J. Super. 552 (Ch. Div. 1990).
2.       Martinetti v. Hickman, 261 N.J. Super. 508 (App. Div. 1993).
3.       357 N.J. Super. 231 (App. Div. 2003).
4.       Id. at 241.
5.       Martinetti, 261 N.J. Super. at 512.
6.       Lepis v. Lepis, 83 N.J. 139, 150 (1980).
7.       Pascale, 140 N.J. at 592, citing Guglielmo v. Guglielmo, 253 N.J. Super. 531, 546 (App. Div. 1992).
8.       Lepis, 83 N.J. at 150.
9.       See Weitzman v. Weitzman, 228 N.J. Super. 346 (App. Div. 1988), and Zazzo v. Zazzo, 245 N.J. Super. 124 (App. Div. 1990).
10.    Zazzo, 245 N.J. Super. 124.
11.    402 N.J. Super. 298 (App. Div. 2008).
12.    Martinetti, 261 N.J. Super. at 512.
13.    Lepis, 83 N.J. at 151.
14.    Id. at 157.
 
Links
 
 
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Tuesday, February 11, 2014

After Van Dunk: the Intentional Wrong Exception to the New Jersey Workers’ Compensation Act

After Van Dunk: the Intentional Wrong Exception to the New Jersey Workers’ Compensation Act

Justin M. Smigelsky, Esq.

According to the New Jersey Workers’ Compensation Act,1 swift and certain payment, without regard to fault, to an employee who sustains workplace injuries is required. In exchange, employers are immune from tort liability and the employee surrenders all other forms of relief, which includes the right to sue his or her employer. Under the express terms of the statute, the employer’s immunity from liability can be overcome if the injury was the result of the employer’s “intentional wrong.”2

One of the landmark cases interpreting the “intentional wrong” exception is Millison v. E.I. du Pont de Nemours & Co.3 In Millison, the New Jersey Supreme Court determined that workers whose job required contact with asbestos could not sue their employer in common-law when they became ill as a result of that contact, even though the employer was aware of the risks associated with asbestos.4 In so holding, the Court framed the question as “what level of risk-exposure is so egregious as to constitute an ‘intentional wrong.’”5

The Millison Court instructed future courts to engage in a two-step analysis when assessing claims of intentional wrong. A court should first consider whether the actions of an employer created a “virtual certainty” of injury or death under the “conduct prong,” followed by consideration of the context in which the conduct takes place.6 Under this so-called “context prong,” courts must consider whether the resulting injury or death, and the circumstances surrounding it, fairly may be viewed as a fact of industrial life, or rather, whether it is “plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the Compensation Act.”7

            Some seventeen years after Millison, the New Jersey Supreme Court considered four cases that involved on-the-job accidents. In Laidlow v. Hariton Machinery Co.,8 the Court observed that proving both the conduct and context prongs may involve consideration of the same facts and circumstances, with the court making two separate inquires:

The first is whether…the evidence could lead a jury to conclude that the employers acted with knowledge that it was substantially certain that a worker would suffer injury. If that question is answered affirmatively, the trial court must then determine whether, if the employees’ allegations are proved, they constitute a simple fact of industrial life or are outside the purview of the conditions the Legislature could have intended to immunize under the Workers’ Compensation bar.9

The Court also emphasized in Laidlow that an intentional wrong is not limited to actions taken with a subjective desire to harm and includes instances where an employer knows that the consequences of those acts are “substantially certain” to result in harm.10

One year later, in what may be characterized as the “intentional wrong trilogy of cases,” Tomeo v. Thomas Whitesell Constr. Co.,11 Mull v. Zeta Consumer Prods.,12 and Crippen v. Central Jersey Concrete Pipe Co.,13 the Court had occasion to apply the Millison conduct and context analysis in three very different fact patterns, and ultimately reaffirmed that in order for an employee to pursue its cause of action against the employer, both the conduct and context prongs must be proved. Furthermore, as enunciated in the “intentional wrong trilogy of cases,” such determinations must be made on a case-by-case basis taking into consideration the totality of the circumstances.14

            As summarized in Laidlow:

[I]n order for an employer’s act to lose the cloak of immunity of N.J.S.A. 34:15-8, two conditions must be satisfied: (1) the employer must know that his actions are substantially certain to result in injury or death to the employee, and (2) the resulting injury and the circumstances of its infliction on the worker must be (a) more than a fact of life of industrial employment and (b) plainly beyond anything the Legislature intended the Workers’ Compensation Act to immunize.15

In Van Dunk v. Reckson Assocs. Realty Corp.,16 one of the most recent cases to consider the issue, the New Jersey Supreme Court once again addressed the standard established by the Legislature that permits a worker to bring a common law tort action against his or her employer as an exception to the immunity provided under the Workers Compensation Act for job-related injuries.

In Van Dunk, the employee/plaintiff, Kenneth Van Dunk, was digging a trench to place a dewatering sump into a retention pond. One of Van Dunk’s duties involved laying down filter fabric within the trench. As the trench excavation continued and its slope reached a depth greater than five feet, Van Dunk began laying down the filter fabric from locations outside the trench. When workers experienced difficulty laying down the filter fabric from their locations outside the trench, Van Dunk volunteered to go into the trench to straighten the filter fabric. Although Van Dunk’s supervisor initially told him not to do so because of the risks attributable to the ground conditions, the supervisor, in a moment of “frustration,” told Van Dunk to go in and straighten the fabric. Van Dunk was in the trench for less than five minutes when a wall caved in burying him to his chest resulting in multiple injuries. In reversing the Appellate Division’s denial of summary judgment on behalf of the employer, the Court noted that the on-site supervisor had made a quick and extremely poor decision, but was not faced with facts which provided an objectively reasonable basis to expect that a cave-in would almost certainly occur during the brief time that the claimant was in the trench.17

We recently learned from the Van Dunk decision that sometimes even the intentional violation of an OSHA regulation by an employer may not be enough to permit the plaintiff his day in court. However, the Court in Van Dunk was unequivocal in reminding us that the courts must always look to the “totality of the circumstances” in determining whether an intentional wrong has been committed so as to permit an employee’s action to move forward against his or her employer.18

As previously stated, in assessing whether an intentional wrong was committed, courts not only determine whether a “virtual certainty” of injury or death existed under the conduct prong, but also must consider the context in which the conduct takes place.19 Under the context prong, courts must determine whether the resulting injury or death, and the circumstances surrounding it, fairly may be viewed as a fact of industrial life or, rather, whether it is “plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the Compensation Act.”20

Whether workplace injuries can be tolerated as a simple fact of industrial life deserving immunization for the employer is a question of law, not fact;21 however, the same facts and circumstances will generally be relevant to both the conduct and context prongs.22

This article is for information purposes only, and is neither legal advice nor the creation of an attorney-client relationship. If you have been injured on the job, it is important for you to obtain an experienced workers’ compensation attorney.     

_______________________________
End Notes
  1. N.J.S.A. 34:15-1 to -128.5
  2. N.J.S.A. 34:15-8.
  3. 101 N.J. 161 (1985).
  4. 101 N.J. at 175-76
  5. Id. at 177.
  6. Id. at 179.
  7. Id.
  8. 170 N.J. 602 (2002).
  9. Id. at 623.
  10. Id.
  11. 176 N.J. 366 (2003).
  12. 176 N.J. 385 (2003).
  13. 176 N.J. 397 (2003).
  14. Laidlow, 170 N.J. at 619, 623; Mull, 176 N.J. at 392; Tomeo, 176 N.J. at 374.
  15. Laidlow, 170 N.J. at 617.
  16. 210 N.J. 449 (2012).
  17. See Id.
  18. Id.
  19. Millison, 101 N.J. at 179.
  20. Id.
  21. Laidlow, 170 N.J. at 623.
  22. Id.

________________________________

Links

http://lwd.dol.state.nj.us/labor/wc/workers/workers_index.html
http://justinsmigelskyesq.blogspot.com/2013/03/supplementing-riccis-law-mandatory.html


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Saturday, April 27, 2013

GUN CONTROL IN THE GARDEN STATE: THE STATE SENATE SETS ITS SIGHTS ON MODIFYING NEW JERSEY GUN LAWS

Gun Control in The Garden State:
The State Senate Sets Its Sights on Modifying New Jersey Gun Laws

By: Justin M. Smigelsky, Esq.

April 27, 2013

            In response to recent tragedies, such as the tragic shooting deaths of twenty elementary-school children in Newtown, Connecticut this past December, the New Jersey legislature has responded with a proposed package of gun-control bills that may serve as a national model for gun safety. A task force recently assembled by Governor Christie has suggested several revisions to current state gun laws, including prevention of straw purchases of illegal guns from out of state and a presumption against granting gun permits to individuals who have been involuntarily committed to mental institutions. Moreover, the New Jersey Senate plans to introduce a “centerpiece” bill which would create a new photo identification for gun buyers to assist in background checks, mandate firearms safety training to those seeking a permit, and require immediate revocation of gun permits upon involuntary mental health commitment or criminal conviction.

While some New Jerseyans applaud the efforts of the New Jersey Senate, others, including Scott Back, the Executive Director of the Association of New Jersey Rifle and Pistol Clubs, claim New Jersey does not need tougher gun-control laws. According to Bach, “New Jersey already has some of the toughest gun laws in the nation. More of the same will not stop another criminal or a madman – their only impact is on the law-abiding.”

As the result of the recent tragedies in Newtown, Connecticut and Aurora, Colorado the Second Amendment is more hotly debated than ever before. In addition, daily gun-related deaths in New Jersey, including the recent accidental shooting of a six-year-old boy in Toms River, have the effects of gun violence hitting closer to home. However, as the result of state sovereignty issues, evolving technology, differing opinion on constitutional interpretation and legal theory, and the intense passion evoked on both sides of the issue, gun control will remain at the forefront of national debate well into the 21st century.

Tension between the Federal Government and state governments has been in existence since at least 1837, when Georgia passed a law banning handguns. As the Georgian Constitution did not contain an equivalent to the Second Amendment, the Supreme Court of Georgia, in Nunn v. State of Georgia, deemed that the right provided under the U.S. Constitution left the Georgia law null and void. In striking down the 1837 Georgian law, the Nunn court asked:

Does it follow that because the people refused to delegate to the general government the power to take from them the right to keep and bear arms, that they designed to rest it in the State governments? Is this a right reserved to the States or to themselves? Is it not an inalienable right, which lies at the bottom of every free government? We do not believe that, because the people withheld this arbitrary power of disfranchisement from Congress, they ever intended to confer it on the local legislatures. This right is too dear to be confided to a republican legislature.

            Only a few other cases concerning gun control have managed to reach the U.S. Supreme Court, leading to confusion and a lack of clarity in regards to the Second Amendment. In the 2008 landmark decision of District of Columbia v. Heller, the U.S. Supreme Court held that the Second Amendment protects an individual’s right to possess a firearm for traditional lawful purposes, refuting the argument that the right only applies to members of the militia. Two years later, in McDonald v. Chicago the Court cleared up the uncertainty left in the wake of Heller, holding that the Second Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment and, therefore, applies to the states. Despite these landmark decisions, many questions have been left unanswered by the lack of judicial attention paid to the Second Amendment in approximately 225 years since its ratification. In fact, only the Third Amendment, which concerns the quartering of soldiers, has received less attention from American courts. 

While many opponents of gun control assert that the Constitution grants an absolute right to possess firearms, technological advancement has steadfastly fueled the debate. In response to an assassination attempt on FDR in 1934, Congress passed the National Firearms Act to regulate automatic weapons, which at the time were considered a modern advancement. Similarly, in 1939 the United States Supreme Court upheld a law mandating registration of shotguns because the weapons were not deemed to be ordinary arms. Modern issues created by evolving technology include whether American citizens have the “right to bear” concealed weapons, assault weapons, and even explosives. New developments in weaponry will certainly continue to stir public passion on the topic for years to come.

            The controversy surrounding the Second Amendment is further complicated by differing constitutional interpretations. Is the Constitution a “living and breathing” document, capable of adapting when necessitated by the times? Or, should the Constitution be strictly construed to honor the intent of the drafters? Regardless, as little documentation regarding the Second Amendment has survived, the intent of James Madison and the original drafters is nearly impossible to decipher. Furthermore, differing theories as to the role of law in our society also contribute to the debate. Although the American legal and political systems are oriented towards protection of the individual, the law cannot provide for the absolute protection of the individual because legitimate state interests are often controlling.


Sources:

Brooks, Chad. “The Second Amendment & the Right to Bear Arms.” LiveScience.com. http://www.livescience.com/26485-second-amendment.html>.

Carl T. Bogus, The Hidden History of the Second Amendment, 31 U.C. Davis L. Rev. 309 (1998).

District of Columbia v. Heller, 554 U.S. 570 (2008).

Friedman, Matt. “N.J. Senate Democrats to Introduce 12 New Gun Control Measures.” The Star-Ledger, April 12, 2013. http://www.nj.com/politics/index.ssf/2013/04/senate_dems_to_introduce_12_ne.html

Longley, Robert. “Gun Control Timeline – U.S. Government Info/Resources.” http://usgovinfo.about.com/blguntime.htm>.

Lott, John R. More Guns, Less Crime: Understanding Crime and Gun-Control Laws. Chicago: University of Chicago, 1998.

M. Ethan Katsh & William Rose. Taking Sides: Clashing Views on Controversial Issues. Dushkin/McGraw-Hill (9th Ed. 2000).

McDonald v. Chicago, 561 U.S. 3025 (2010).

Murphy, Jenna. ”Second Amendment: Why Is There Controversy Surrounding Gun Control?” April 15, 2013. (On file with the author)

“N.J. Governor Proposes Measures to Curb Gun Violence.” USA Today, April 19, 2013. http://www.usatoday.com/story/news/nation/2013/04/19/christie-guns-proposal-new-jersey/2098007/

Nunn v. State of Georgia, 1 Kelly 243 (Ga. 1846).


Links of Interest:







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