New Jersey Family Law

NEW JERSEY DIVORCE ATTORNEY : HYPNOSIS

Hypnotically refreshed testimony of a witness in a criminal trial is generally inadmissible. State v. Hurd [which established guidelines for the admissibility of such testimony] should no longer be followed in New Jersey. It remains to be seen whether this rejection will carry over into New Jersey divorce and New Jersey family law cases. Justice Rivera-Soto concurred in part and dissented in part.    State v. Moore, ___ N.J. ___ (2006); New Jersey Supreme Court, August 14, 2006

NEW JERSEY DIVORCE LAWYER : BATTERED WOMEN SYNDROME

In a prosecution for the murder of defendant's girlfriend, the trial court properly admitted expert testimony about the common characteristics of battered women and battered women's syndrome. The failure to issue a limiting instruction on the use of the expert's testimony was harmless error. Also, the 20-year delay between the date of the crime and the date of the indictment did not violate due process.    State v. Townsend, New Jersey Supreme Ct., ___ N.J.___ (2006); May 5, 2006

NEW JERSEY DIVORCE : DRUG TESTING

Plaintiff seemed under the influence of something at his New Jersey deposition. Two calls were placed to the judge, who ordered him to answer questions about his criminal drug convictions and to undergo blood/urine testing in the middle of the deposition. Plaintiff, who had taken both prescription and illegal substances in the prior 24-hour period, left when he realized he would have to place his drug history on the record. Defendants sought dismissal of the complaint, arguing that plaintiff's failure to submit to the drug tests was tantamount to spoliation of evidence. The prior order requiring plaintiff to submit to the immediate testing was proper. The complaint is dismissed without prejudice and plaintiff is ordered to pay counsel fees and transcription costs for defendants' attendance at the aborted deposition. Any reinstatement motion shall not be filed until the sanctions are paid and plaintiff's deposition conducted anew. Plaintiff shall answer all questions relating to his two drug convictions.      Freeman v. Milric, et al., etc., New Jersey Law Div., Middlesex Cy. (LeBlon, J.S.C.) ; March 14, 2006

NEW JERSEY FAMILY LAW : SEX TAPES

The Appellate Division reverses the order directing the boyfriend to turn over to his attorney photographs/videotapes of the parties having sex, including negatives and electronic/digital media copies. The attorney was then to turn over the items to adversary counsel, who was to destroy them and verify such action to the court. The trial court exceeded its authority under the Prevention of Domestic Violence Act. The tapes were not illegal, they were made with the consent of both parties and there was no showing they were disseminated. The statutory remedies granted by the Act do not empower a court to, sua sponte, order the destruction of personal property. The girlfriend was not the victim of domestic violence, but she has a remedy in replevin.   Bharadwaj v. Lendzioszek, New Jersey App. Div., March 9, 2006

NEW JERSEY ADULTERY

His widow [his second wife, 28 years younger] sued his Estate, claiming that his sons from his prior marriage used "undue influence" to induce their father to make a new will in their favor, depriving her thereby. She sought to set aside the new will and admit a prior will in her favor. The children counterclaimed, alleging misappropriation through her misuse of a power of attorney and improper transfer of his assets. The children wanted discovery of her prior divorce and a purported adulterous affair. The court holds that her cell phone records must be produced, specifically with respect to an individual with whom plaintiff allegedly had an affair. Evidence of decedent's knowledge of his wife's infidelity may be evidential as it relates to his wishes to change his will.   In Re Estate of Fenton,  New Jersey Chancery Div., September 13, 2005

Closed Circuit TV

The trial court erred by allowing a 21-year-old sexual abuse victim to testify by closed circuit television outside of the defendant perpetrator's presence in a New Jersey civil proof hearing, but the error was harmless. Justice Rivera-Soto concurred and Justice Long concurred in part and dissented in part.    A.B. v. Y.Z., ___N.J.___(2005); 2005 WL 1866048; August 10, 2005

Cell Phone Records

Many New Jersey divorce cases involve the production and analysis of telephone records. What about cell phones? This case demonstrates that those, too, can be compelled. In spite of technical omissions pertaining to the search warrant used, the court holds that the records need not be excluded and are admissible on the basis of the independent source and inevitable discovery doctrines.    State v. Roberts, et al., New Jersey App. Div., July 26, 2005

Prove It

Many reasons are given for not paying alimony. One of them is the alleged unemployment of the payor spouse. Naturally, the parties can and often do strongly disagree as to whether the claimed unemployment is genuine. In this case, the court establishes a "burden of proof" procedure for resolving such disputes. The opponent of the presumed evidentiary fact must offer proof that is clear and convincing -- as opposed to the general civil standard of a preponderance of the evidence -- in refuting the evidential fact. Only then will the proponent of the evidential fact have the responsibility to offer more proof in order to sustain its burden of proof. Wasserman v. Parciasepe, New Jersey Ch. Div., ___N.J. Super. (Ch. Div. 2005); 2005 WL    ; April 11, 2005.

Electronic Wiretap

A wife illegally intercepted her husband's communications with another woman via email and instant messaging when she installed a spyware program on his computer. This software simultaneously  (1) copied his communications in real time as they were being transmitted (2)took screen shots and (3) stored them to a new file. O'Brien v. O'Brien, Florida 5th District Court of Appeals, March 1, 2005.  http://www.5dca.org/Opinions/Opin2005/020705/5D03-3484.pdf

Marital Infidelity

Is marital "dirty linen" only laundered in divorce court? As jury selection got under way this week in the criminal prosecution against ex-WorldCom CEO Bernard Ebbers, the defense won an initial round when the trial judge granted a motion to allow inquiry into the "marital infidelity" of Scott Sullivan, who used to be WorldCom's CFO and is now the prosecution's star witness. The judge agreed with the theory that Sullivan's credibility is now in issue and that allowing "adultery" testimony is relevant to test that credibility. January 24, 2005

http://money.cnn.com/2005/01/18/news/newsmakers/ebbers_trial.reut/