NJ & CT News

NEW JERSEY

Offensive Language No Basis for Domestic Violence Restraining Order

Domestic violence can take many forms, but offensive speech alone isn't one of them, unless its purpose is “to alarm or seriously annoy,” a New Jersey appeals court said in striking down a final restraining order. The Appellate Division, in E.M.B. v. R.F.B., A-1155-09, found that a man who allegedly called his 88-year-old mother a “senile old bitch” did not necessarily do so with intent to harass, a necessary element to restraining speech under First Amendment jurisprudence. The panel declared invalid a restraining order issued against R.F.B., a man whose mother, E.M.B., had filed a domestic violence complaint, claiming he stole her car keys, cell phone, bank book, money and jewelry. The court held that theft is not one of the predicate acts under N.J.S.A. 2C:25-19 that can serve as supporting the issuance of restraints.

Even With No Trust Agreement, Jury Finds Lawyer Responsible for Breach

In an unusual legal malpractice case, a Bergen County jury, in Innes v. Marzano-Lesnevich, L-7739-07, awarded a man and his daughter nearly $1 million in damages from the defendants, the mother's law firm and attorney. The firm, Hoboken's Lesnevich & Marzano-Lesnevich, had allowed the child's passport to fall into their client's hands. With it, the mother was able have her child spirited away to Spain, out of the father's reach.

The child's parents had executed a parenting agreement in 2004 in which they agreed not to take her out of the country without prior permission. As part of the agreement, the mother was required to turn the child's passport over to her attorney, to be held in trust. A few weeks later, the mother fired her attorney and obtained the services of Madeline Marzano-Lesnevich and her law firm. The defendants sent a messenger to the fired attorney's office to pick up their new client's file and passport. According to the plaintiff's trial brief, the first attorney asked that receipt of the passport be acknowledged by the defendant firm. Despite this, Marzano-Lesnevich and her firm did not consider themselves to be trustees of the passport, as they had made no promises or representations in that regard. When the mother asked for the passport, Marzano-Lesnevich gave it to her. In January 2005, when the child was four years old, she was taken onto a Spain-bound plane by her paternal grandfather. She is still in Spain today. (A Spanish court later granted custody to the mother, despite a U.S. court's award of custody to the father.)

The defendants were represented in the malpractice suit by firm members Walter Lesnevich and Michael Mildner. After the verdict, Lesnevich said that by determining that Marzano-Lesnevich could become a trustee by her silence, without ever having been asked to be a trustee nor agreeing to act as such, the case had created “a new standard of responsibility by a matrimonial lawyer to their nonclient.” An appeal is planned.

CONNECTICUT

Deportation of Immigrant in Same-Sex Connecticut Marriage Suspended

Immigration Judge Alberto Riefkohl was set to deport Venezuelan citizen Henry Velandia in May, but postponed the action following federal government indications that it may be closer to recognizing the validity of same-sex marriages. Velandia has been in the United States for several years, and is unquestionably here illegally, except for one thing: He was married to a U.S. citizen in Connecticut, where same-sex marriage is legal. In accordance with the Defense of Marriage Act (DOMA), 1 U.S.C. ' 7, the U.S. federal government does not recognize same-sex marriage, even when legally performed in a state or country that permits it. However, the Obama administration recently announced that it will no longer defend DOMA against constitutional attacks. Then, on May 5, on the eve of Velandia's hearing, Attorney General Eric Holder took an unusual action in a similar case, this one involving Irish citizen Paul Wilson Dorman, who is joined in a New Jersey civil union with an American citizen. In that case, the Attorney General voided a Board of Immigration Appeals determination that Dorman should be deported, and ordered the case referred to him. Because of these signals, Judge Riefkohl decided to suspend Velandia's deportation in anticipation of further action by the federal government.

Alimony Adjusted When Blog Entries Prove Changed Circumstances

Connecticut's Superior Court, Judicial District of Middlesex at Middletown, ordered a reduction in a man's alimony payments to his ex-wife in the case of Cardone v. Cardone, DOC. NO.: FA00-0091471 (Middlesex J.D., at Middletown, 3/31/11), because she has been cohabiting with another man since 2009. This change in circumstances came to light when the man discovered his ex-wife's blog, on which she and her companion described their experiences of living on his sailboat in the Caribbean. In her absence, the ex-wife had rented her condominium out to others. After he learned of these facts, in January of this year, the man unilaterally stopped making alimony payments. At the hearing, the ex-wife contended the man should be held in contempt for failing to make payments after January, and that he should not be permitted to seek a reduction in alimony until he had paid the arrearage. The court would not go this far, finding that the man had sufficient reason to stop making payments such that he should not be held in contempt. Nonetheless, the court ordered him to make up the arrearage of $250 per week from the time he stopped paying alimony to the time of the hearing in the matter, in March 2011. Going forward, alimony will be cut to $75 per week, as the court was satisfied that the ex-wife's changed circumstances had been proven and justified a reduction in alimony.

NEW JERSEY

Offensive Language No Basis for Domestic Violence Restraining Order

Domestic violence can take many forms, but offensive speech alone isn't one of them, unless its purpose is “to alarm or seriously annoy,” a New Jersey appeals court said in striking down a final restraining order. The Appellate Division, in E.M.B. v. R.F.B., A-1155-09, found that a man who allegedly called his 88-year-old mother a “senile old bitch” did not necessarily do so with intent to harass, a necessary element to restraining speech under First Amendment jurisprudence. The panel declared invalid a restraining order issued against R.F.B., a man whose mother, E.M.B., had filed a domestic violence complaint, claiming he stole her car keys, cell phone, bank book, money and jewelry. The court held that theft is not one of the predicate acts under N.J.S.A. 2C:25-19 that can serve as supporting the issuance of restraints.

Even With No Trust Agreement, Jury Finds Lawyer Responsible for Breach

In an unusual legal malpractice case, a Bergen County jury, in Innes v. Marzano-Lesnevich, L-7739-07, awarded a man and his daughter nearly $1 million in damages from the defendants, the mother's law firm and attorney. The firm, Hoboken's Lesnevich & Marzano-Lesnevich, had allowed the child's passport to fall into their client's hands. With it, the mother was able have her child spirited away to Spain, out of the father's reach.

The child's parents had executed a parenting agreement in 2004 in which they agreed not to take her out of the country without prior permission. As part of the agreement, the mother was required to turn the child's passport over to her attorney, to be held in trust. A few weeks later, the mother fired her attorney and obtained the services of Madeline Marzano-Lesnevich and her law firm. The defendants sent a messenger to the fired attorney's office to pick up their new client's file and passport. According to the plaintiff's trial brief, the first attorney asked that receipt of the passport be acknowledged by the defendant firm. Despite this, Marzano-Lesnevich and her firm did not consider themselves to be trustees of the passport, as they had made no promises or representations in that regard. When the mother asked for the passport, Marzano-Lesnevich gave it to her. In January 2005, when the child was four years old, she was taken onto a Spain-bound plane by her paternal grandfather. She is still in Spain today. (A Spanish court later granted custody to the mother, despite a U.S. court's award of custody to the father.)

The defendants were represented in the malpractice suit by firm members Walter Lesnevich and Michael Mildner. After the verdict, Lesnevich said that by determining that Marzano-Lesnevich could become a trustee by her silence, without ever having been asked to be a trustee nor agreeing to act as such, the case had created “a new standard of responsibility by a matrimonial lawyer to their nonclient.” An appeal is planned.

CONNECTICUT

Deportation of Immigrant in Same-Sex Connecticut Marriage Suspended

Immigration Judge Alberto Riefkohl was set to deport Venezuelan citizen Henry Velandia in May, but postponed the action following federal government indications that it may be closer to recognizing the validity of same-sex marriages. Velandia has been in the United States for several years, and is unquestionably here illegally, except for one thing: He was married to a U.S. citizen in Connecticut, where same-sex marriage is legal. In accordance with the Defense of Marriage Act (DOMA), 1 U.S.C. ' 7, the U.S. federal government does not recognize same-sex marriage, even when legally performed in a state or country that permits it. However, the Obama administration recently announced that it will no longer defend DOMA against constitutional attacks. Then, on May 5, on the eve of Velandia's hearing, Attorney General Eric Holder took an unusual action in a similar case, this one involving Irish citizen Paul Wilson Dorman, who is joined in a New Jersey civil union with an American citizen. In that case, the Attorney General voided a Board of Immigration Appeals determination that Dorman should be deported, and ordered the case referred to him. Because of these signals, Judge Riefkohl decided to suspend Velandia's deportation in anticipation of further action by the federal government.

Alimony Adjusted When Blog Entries Prove Changed Circumstances

Connecticut's Superior Court, Judicial District of Middlesex at Middletown, ordered a reduction in a man's alimony payments to his ex-wife in the case of Cardone v. Cardone, DOC. NO.: FA00-0091471 (Middlesex J.D., at Middletown, 3/31/11), because she has been cohabiting with another man since 2009. This change in circumstances came to light when the man discovered his ex-wife's blog, on which she and her companion described their experiences of living on his sailboat in the Caribbean. In her absence, the ex-wife had rented her condominium out to others. After he learned of these facts, in January of this year, the man unilaterally stopped making alimony payments. At the hearing, the ex-wife contended the man should be held in contempt for failing to make payments after January, and that he should not be permitted to seek a reduction in alimony until he had paid the arrearage. The court would not go this far, finding that the man had sufficient reason to stop making payments such that he should not be held in contempt. Nonetheless, the court ordered him to make up the arrearage of $250 per week from the time he stopped paying alimony to the time of the hearing in the matter, in March 2011. Going forward, alimony will be cut to $75 per week, as the court was satisfied that the ex-wife's changed circumstances had been proven and justified a reduction in alimony.