NJSBA Family Law Section

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  • 1.  FD binding on FM?

    Posted 12-08-2015 03:59 PM

    Please help!

    Parties have an FD Order by consent providing for joint legal custody with residential custody custody to mother and PT for dad.  Parties were not represented in the FD.  

    Since then a divorce complaint was filed.  Father wants joint legal and shared physical.  We are requesting Court mediation to resolve custody and parenting time.  Wife says we already have an Order.

    Is the FD binding?  I'm told there is case law that says "no."  I have not found any cases.  Does anyone know of a case or court rule?

    Thank you for any help for dad!

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    Mary Jane Leland Esq.
    Leland Law Firm, LLC
    Freehold NJ
    (732)409-7777
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  • 2.  RE: FD binding on FM?

    Posted 12-08-2015 04:34 PM

    Hi Mary Jane.

    A Final Order under an FD Docket No. is res judicata and binding upon the same parties in a later filed FM matter.

    If there is a substantial change of circumstances, or if there is other good cause to collaterally and timely attack the FD Final Order (unconscionability, fraud, misrepresentation), then I believe you can use the FM case as a vehicle for the requested modifications -- provided you clearly reference the old case in the new pleadings and documents.

    Hanan


    hanan.gif

    Hanan M. Isaacs, Esq.

     

    t 609.683.7400   f 609.921.8982

    e [email protected]   w www.hananisaacs.com

    4499 Route 27, Kingston NJ



    Original Message


  • 3.  RE: FD binding on FM?

    Posted 12-08-2015 05:42 PM

    I am aware of no case law permitting a second bite, simply by filing an FM after a resolved FD. Usual 4:50 and changed circumstances requirements obtain. Not a Cyclops case.

    ------------------------------
    Curtis Romanowski Esq.
    Senior Attorney - Proprietor
    Metuchen NJ
    (732)603-8585

    Original Message


  • 4.  RE: FD binding on FM?

    Posted 12-08-2015 06:05 PM
    It depends on how the FD order was worded. If it's a plain old final order, he has a hill to climb. If it has grey language like "for so long as we're separate" or something that implies it wasn't final, the slope of the hill just became gentler.

    In default divorce matters where the defendant won't sign off for whatever reason, judges will routinely incorporate an FD order for child support into an FM judgment of divorce unless there is a change in circumstances.


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    Original Message


  • 5.  RE: FD binding on FM?

    Posted 12-08-2015 05:18 PM

    P.S.  If you go on the judiciary's website, there is a Guide to FD Child Support that says, in so many words, this finding is binding on the parties, including in an FM matter.  The parties are the same, their  interests and issues are the same, and the ruling should not change from FD to FM just because the Docket Number changed.  The same should hold true for child custody/parenting time cases.

    Parties don't get two bites at the same apple.  That is why I focused my earlier comments on FM changed circumstances or an FM collateral attack on FD enforcement.





    Original Message