Wednesday, December 24, 2014

Merry Christmas

Merry Christmas to all who celebrate. To those who don't, have a wonderful and peaceful last week of 2014.

Friday, December 19, 2014

The Holiday Hustle

Less than a week to go before the holidays and everyone has an emergency that they appear to have neglected for months...

Monday, December 15, 2014

A Long Visitation Saga Comes to an Interim Closure - Part 2

A case that I have been involved with in a variety of capacities over the last decade reached another crossroads at the Appellate Division last week, with two appeals being decided by the Court. Here's the second of two decision handed down:

Decided on December 10, 2014 
SUPREME COURT OF THE STATE OF NEW YORK 
Appellate Division, Second Judicial Department 
L. PRISCILLA HALL, J.P. 
JEFFREY A. COHEN 
SYLVIA O. HINDS-RADIX 
HECTOR D. LASALLE, JJ.


2013-09434 
(Docket No. V-16300-10/12M) 


Appeal from an order of the Family Court, Queens County (Stephen J. Bogacz, J.), dated September 24, 2013. The order, upon, in effect, granting the father's motion to confirm a report of a Referee (Julie Stanton, Ct. Atty. Ref.), made after a hearing, and upon, in effect, denying the mother's cross motion to reject the Referee's report and for a new hearing, granted the father's petition to modify the visitation provisions of a prior order of that court dated September 28, 2012, so as to, inter alia, limit the mother to therapeutically supervised visitation with the subject children.
ORDERED that the order dated September 24, 2013, is affirmed, with costs.
"In determining visitation rights, the most important factor to be considered is the best interests of the child" (Matter of Hansen v Balkaran, 111 AD3d 827, 827). A visitation order may be modified upon a showing that there has been a change in circumstances since entry of the prior order such that modification is warranted to further the child's best interests (see id.Matter of Abranko v Vargas, 26 AD3d 490, 491). The determination of visitation is within the sound discretion of the trial court, and its determination will not be set aside unless it lacks a sound and substantial basis in the record (see Matter of Burrell v Burrell, 101 AD3d 1193Matter of Gilmartin v Abbas, 60 AD3d 1058Matter of Tercjak v Tercjak, 49 AD3d 772).
Here, the Family Court's determination that a change of circumstances had occurred, warranting modification of the visitation provisions of an order of that court dated September 28, 2012, to the extent of requiring that the mother's visitation occur under therapeutic supervision, has a sound and substantial basis in the record (see Matter of Paul A. v Shaundell, LL., 117 AD3d 1346Matter of Hansen v Balkaran, 111 AD3d at 827; Matter of Gabriel J. [Daniee A.], 100 AD3d 572Matter of Bullinger v Costa, 63 AD3d 735Matter of James Joseph M. v Rosana R., 32 AD3d 725, 726).
Contrary to the mother's contention, the Family Court did not condition her right to[*2]visitation on her participation in a psychiatric evaluation and therapy (see Matter of Hansen v Balkaran, 111 AD3d at 827).
The mother's remaining contentions are either unpreserved for appellate review or without merit.
HALL, J.P., COHEN, HINDS-RADIX and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino

Clerk of the Court

Friday, December 12, 2014

A Long Visitation Saga Comes to an Interim Closure

A case that I have been involved with in a variety of capacities over the last decade reached another crossroads at the Appellate Division this week, with two appeals being decided by the Court. Here's the first of two decision handed down:

Decided on December 10, 2014 
SUPREME COURT OF THE STATE OF NEW YORK 
Appellate Division, Second Judicial Department 
L. PRISCILLA HALL, J.P. 
JEFFREY A. COHEN 
SYLVIA O. HINDS-RADIX 
HECTOR D. LASALLE, JJ.


2012-04795 
(Docket Nos. V-16300-10/12M, V-16301-10/12M, V-16384-10/12Q, V16385-10/12Q) 


Appeals from four orders of the Family Court, Queens County (Stephen J. Bogacz, J.), dated April 26, 2012, September 28, 2012, October 2, 2012, and December 10, 2012, respectively. The order dated April 26, 2012, dismissed, without prejudice, the mother's petition to modify a prior order of custody. The order dated September 28, 2012, among other things, in effect, confirmed a report of a Referee (Julie Stanton, Ct. Atty. Ref.) recommending, after a hearing and upon the mother's default, among other things, that the court grant the father's petition to modify a prior order of visitation. The order dated October 2, 2012, granted the father's petition to modify a prior order of visitation. The order dated December 10, 2012, denied the mother's motion to vacate the order dated September 28, 2012.

DECISION & ORDER
Motion by the respondent to dismiss all four appeals on the ground that they have been rendered academic. By decision and order on motion of this Court dated October 29, 2013, the motion was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, and the briefs of the parties, and upon the argument of the appeals, it is,
ORDERED that the branch of the motion which is to dismiss the appeal from the order dated December 10, 2012, is granted, and the motion is otherwise denied as academic in light of our determination herein dismissing the remaining appeals on other grounds; and it is further,
ORDERED that the appeals from the orders dated April 26, 2012, and October 2, 2012, are dismissed as abandoned; and it is further,
ORDERED that the appeal from the order dated September 28, 2012, is dismissed on the ground that no appeal lies from an order entered upon the default of the appealing party (see CPLR 5511); and it is further,
ORDERED that one bill of costs is awarded to the father.
Following the Family Court's issuance of an order dated December 10, 2012, additional proceedings were conducted and, following a hearing, the Family Court issued an order dated September 24, 2013, further limiting the mother's visitation with the subject children to only supervised therapeutic visitation during the daytime on alternate weekends (see Matter of Costigan v Renner, _____ AD3d _____ [decided herewith]). As a result, the appeal from the order dated December 10, 2012, has been rendered academic (see Matter of Solovay v Solovay, 94 AD3d 898;Matter of Gasparro v Edwards, 85 AD3d 1222Matter of Englese v Strauss, 83 AD3d 705).
Accordingly, we grant that branch of the father's motion which is to dismiss the appeal from the order dated December 10, 2012, on the ground that the appeal has been rendered academic, and do not address the merits of the mother's contentions on that appeal. Additionally, we dismiss the appeals from the orders dated April 26, 2012, and October 2, 2012, as abandoned, and we dismiss the appeal from the order dated September 28, 2012, on the ground that no appeal lies from an order entered upon the default of the appealing party.
HALL, J.P., COHEN, HINDS-RADIX and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino

Clerk of the Court

Wednesday, December 10, 2014

What Does Your Home Screen Say About You?

In court the other day, my adversary was showing me a document on her ipad and we got to talking about our home screens. With the prevalence of “smart phones” these days, everyone’s device is populating with all kinds of apps to supposedly help us manage our workflow and be able to do more tasks on our phones.

For my adversary’s ipad, it was interesting to see that her home screen seemed to be the untouched initial layout that comes with your device. When we began talking, I asked her why she hasn’t moved apps around or organized them in a different fashion. She told me that she simply got used to having them where they are and never saw the need to move anything from its original location.

For me, a lot of times when I need to access an app, I simply pull down and use Spotlight to search for what I need (including for contacts and other items that aren’t apps). While I like to think that my apps are all organized into a logical progression, I’m not so sure that they are. Just when I thought I had given too much thought to my topic, I came across the Mac Power Users podcast and their November 30 edition where they discussedtheir iphone home screens.

I don't think I ever put that much thought into how my screens are organized or what my background image says about me. But now, I am wondering whether the layout I use makes any sense for someone who isn’t me…

Monday, December 8, 2014

New Construction and New Headaches

I can’t count how many times I  have walked by construction sites in my life without giving them a second thought. Sometimes they are creating a new or innovating building, or maybe restoring an old brownstone to its former glory. Other times, they just appear to be making a big mess, pushing dirt around and annoying the neighbors.

The past week or so, I’ve been forced to get involved in the fallout from construction near my office in New Jersey. For the most part, I’ve been able to stay out of the fray for the past few months, but this week, when it began to affect the ability of my clients to get to my office, I am stuck filing complaints with the town.

My office neighbors know I am a lawyer, so they are turning to me to begin to help them with their complaints to the town as well. They all seem to think that this is going to turn into a huge litigation case, but I have a feeling the end will be much quieter and everyone will just be brought into a room and forced to mediate our gripes.

There was enough year end planning on my plate, but now it seems I’m to be roped into this dispute whether I like it or not.

Friday, December 5, 2014

Small Business Year End Planning - Annual Corporate Meetings

With only a few weeks left in 2014, many of my small business clients are re-appearing to prepare for their year-end evaluations and preparations for 2015. As lawyers (and accountants even more so) know, this year-end period is a perfect time to get those last minute items off of your to-do lists and get the plate set for a prosperous 2015.

For my New York clients, they remember the requirements of New York Business Corporation Law § 602 for an annual meeting of shareholders and the corresponding minutes and notations in their corporate books.  In New Jersey, the corresponding provision is N.J.S.A. 14A:5-2, which similarly requires an annual meeting, but, if no other date is provided for in the company by-laws, shall be held at noon on the first Tuesday of April.

For small businesses (even those that are a sole proprietorship), this corporate requirement is often the last thing on the owners’ minds with all of the other things that go into the daily operations. But at the same time, it takes only a short conversation with your attorney to get the paperwork put together and executed and you can go about your business.


For more information or for assistance with your corporate books and records, please contact me by telephone at either (718) 568-0221 or (908) 698-0417, or through my website www.AndrewMAyers.com.

Wednesday, December 3, 2014

Joint Ventures and Partnerships in New Jersey

The New Jersey Appellate Division recently dealt with a case involving the presence (or in this case, the lack thereof) of a joint venture or partnership, and the legal standards applied to those claims. The establishment of a joint venture or partnership can often be a tricky case that needs to be handled with care when brought before a court.

In Jones v. Belwood Aromatics, Inc., after the Plaintiff was fired, he claimed that he was entitled to an equity interest in Belwood based upon the statements of Defendants, which he claimed formed the basis for a finding that there was a joint venture or partnership between the parties.

The Appellate Division examined partnerships and joint ventures,
"The burden of proving the existence of a partnership was upon plaintiff, who alleged it . . . ." Lohmann v. Lohmann, 50 N.J. Super. 37, 45 (App. Div. 1958), certif. denied, 31 N.J. 187 (1959). A partnership is "an association of two or more persons to carry on as co-owners a business for profit . . . ." N.J.S.A. 42:1A-2. "[A] joint venture is virtually identical to a partnership, [although] its objective as a business venture is more limited. Presten v. Sailer, 225 N.J. Super. 178, 191 (App. Div. 1988). A partnership or joint venture need not be formalized in writing, and can be inferred from conduct. Id. at 191-93; Ruta v. Werner, 1 N.J. Super. 455, 460 (Ch. Div. 1948). The elements of an inferred partnership or joint venture "include agreement, sharing profits and losses, ownership and control of the partnership['s] property and business, community of power, rights upon dissolution and the conduct of the parties towards third persons, among others." Kozlowski v. Kozlowski, 164 N.J. Super. 162, 171 (Ch. Div. 1978), aff'd, 80 N.J. 378 (1979). Here, plaintiff argues that: (1) through his labor, he contributed to Belwood; (2) Beldner paid plaintiff fifty percent of Belwood's profits; (3) Beldner offered plaintiff a share in Belwood's sale price; and (4) Beldner often referred to plaintiff as a partner.
The court found that despite the Plaintiff’s arguments, he had been compensated for his labor through salary and bonuses, the bi-monthly payments were not profit sharing, the alleged verbal offers were not legally sufficient to give Plaintiff an interest in the company and that the promise was “illusory”, which the Court explained is 
An apparent promise, which according to its terms makes performance optional whatever may happen, or whatever course of conduct in other respects he may pursue, is in fact no promise, although often called an illusory promise. [Curtis Elevator Co. v. Hampshire House, Inc., 142 N.J. Super. 537, 542 (Law Div. 1976) (emphasis omitted) (citations omitted).] Illusory promises are disfavored, and courts will attempt to infer reasonable contract terms. Ibid.
The Appellate Division concluded, 
The remaining elements of a partnership weigh against a finding that Belwood was a partnership or joint venture. The parties never reached a formal written agreement. Plaintiff lacked authority or control over Belwood. He did not contribute financially to Belwood, and he did not own or control Belwood's property. As noted previously, he never accepted any legal or economic liability for Belwood. Lastly, plaintiff repeatedly undermined Belwood by working for its competitors, even against Beldner's express prohibition, and by seeking to sabotage the company after his termination. Accordingly, we affirm the trial court's conclusion that plaintiff failed to establish a partnership or joint venture, and thus we affirm the dismissal of plaintiff's complaint.
The full text of the opinion can be found here.

Monday, December 1, 2014

Denial of Alimony Modification in New Jersey

Years ago I had a collateral relationship with a case that has once again been submitted to New Jersey’s Appellate Division. This time, it was for a modification of an alimony award, which the lower court denied to the payor and which the Appellate Division upheld as “based on sufficient, credible evidence in the record and does not amount to an abuse of discretion.”

In the case at hand, the payor spouse returned to the Court on a cross-motion, claiming that she had experienced a significant decrease in income from her only source of revenue. The lower court denied the application on procedural grounds, her failure to provide the court with her prior Case Information Statements, and on substantive grounds, that she “failed to establish a prima facie showing of a permanent change in circumstances.” The payor appealed to the Appellate Division, who reviewed the law regarding modification of alimony awards,
Alimony awards may be modified. N.J.S.A. 2A:34-23. "The party seeking modification has the burden of demonstrating a change in circumstances warranting relief from the support or maintenance obligations." Innes v. Innes, 117 N.J. 496, 504 (1990). The party moving for modification must present a prima facie showing of changed circumstances to justify a plenary hearing on the matter. Miller v. Miller, 160 N.J. 408, 420 (1999). Only after such a showing is made will the court order discovery and conduct a hearing "to determine the supporting spouse's ability to pay." Ibid.
Alimony is generally set based on the marital standard of living. Lepis v. Lepis, 83 N.J. 139, 150 (1980) ("The supporting spouse's obligation is mainly determined by the quality of economic life during the marriage, not bare survival."). Alimony amounts thus "'contemplate [] continued maintenance at the standard of living [the spouse] had become accustomed to prior to the separation.'" Ibid. (quoting Khalaf v. Khalaf, 58 N.J. 63, 69 (1971)). These awards, however, can be modified based on the "changed circumstances" of the parties, which may include
(1) an increase in the cost of living; (2) increase or decrease in the supporting spouse's income; (3) illness, disability or infirmity arising after the original judgment; (4) the dependent spouse's loss of a house or apartment; (5) the dependent spouse's cohabitation with another; (6) subsequent employment by the dependent spouse; and (7) changes in federal income tax law.
[Id. at 151 (internal citations omitted).] Where, as here, the movant is arguing changed circumstances based on a reduction in income (Factor Two) to establish a prima facie case, she must show specifically "'that changed circumstances have substantially impaired the ability to support . . . herself.'" Crews v. Crews, 164 N.J. 11, 28 (2000) (quoting Lepis, supra, 83 N.J. at 157). This "must be understood to mean the ability to maintain a standard of living reasonably comparable to the standard enjoyed during the marriage." Crews, supra, 164 N.J. at 28.
Additionally, "it is not enough that an obligor demonstrate a reduction in income; the obligor must also demonstrate how he or she has attempted to improve the diminishing circumstances." Donnelly v.Donnelly, 405 N.J. Super. 117, 130 n.5 (App. Div. 2009); see also Aronson v.Aronson, 245 N.J. Super. 354, 361 (App. Div. 1991) (finding no prima facie case of changed circumstances when "what [movant] did was to allow his practice to continue to diminish unchecked while bemoaning his fate").
The movant must also show that the reduction in income is not merely temporary. Innes, supra, 117 N.J. at 504. In considering whether the reduction will be long-term, courts have looked at, among other factors, the time between the entry of the JOD and the motion for modification. Larbig, supra, 384 N.J. Super. at 19 (rejecting a motion for modification filed only twenty months after the entry of the JOD). However, there is no brightline rule to measure when a changed circumstance is sufficient to allow relief. Id. at 23. In Donnelly, we affirmed the family court's denial of movant's motion for modification, holding that "the trial judge properly exercised his discretion in concluding that [movant] had returned to court far too soon to obtain relief[,] [c]onsidering that th[e] [] motion [at issue] was filed only nine months after the denial of the first Lepis motion." Donnelly, supra, 405 N.J. Super. at 128. We concluded that the short timeframe meant that the movant "failed to demonstrate that his alleged change in circumstances was anything but temporary." Ibid.
Moreover, courts apply closer scrutiny to "'what constitutes a temporary change in income'" when the movant is self-employed. Ibid. (quoting Larbig, supra, 384 N.J. Super. at 23). In Donnelly, we also noted that a self-employed movant is "'in a better position to present an unrealistic picture of his or her actual income than a W-2 earner[,]'" and thus "'what constitutes a temporary change in income should be viewed more expansively when urged by a self-employed obligor[.]'" Id. at 128-29 (quoting Larbig, supra, 384 N.J. Super. at 23).

In denying the appeal, the Court deferred to the lower court, who “determined that plaintiff mismanaged the business and misused corporate assets during her romantic affairs with clients and [the company’s] business turnaround specialist.


The full text of the opinion can be found here.