Yes, as a New Jersey divorce lawyer I have been asked this question many times. All told, under N.J. divorce law, an attorney may only file an application regarding a case that is interrelated to a legal issue that evolved from a “family or family type” relationship. Following is an analysis of a recent New Jersey Appellate case in which a claim for intentional emotional distress based upon allegations of parental alienation.
In Bensen v. Weiss, Michael Bensen and Sandra Weiss were married for twelve years from 1996 to 2008. The parties had two children born of the marriage. The parties had a son born in 1997 and a daughter born in 1999. Michael, the husband, filed for divorce in 2008 after years of arguments and disagreements. The parties had a very difficult and combative divorce, which was finalized on June 17, 2011. Due to the parties’ bitterness toward each other, custody and parenting time were difficult issues to settle. The Family Part of the Superior Court of New Jersey entered a “Judgment Fixing Custody and Parenting Time” order in August of 2010. In this Judgment, the parties agreed that the wife, Sandra, would be the parent of primary residence, meaning the children would live with Sandra. The parties agreed that they would share joint legal custody. The Judgment of Divorce included a detailed Property Settlement Agreement, which laid out the terms discussed in court in 2010. The terms that were discussed were essential to the parties’ divorce. In the Settlement Agreement, the parties agreed to let the court determine undecided issues, such as life insurance, college payments, equitable distribution, and the ability for the husband to visit the family dog. In the Settlement Agreement, the parties also waived their right to relitigate any of these issues, which also included child support, custody, and attorneys’ fees. Through the Settlement Agreement, the parties also waived their right to bring future claims against each other that related to the marriage or divorce.
In 2014, Michael brought a claim against Sandra in the Law Division for intentional infliction of emotional distress (“IIED”), aiding the commission of a tort, and conspiracy. Michael claimed that Sandra intentionally acted in an intense or outrageous way to damage Michael’s relationship with his children. Michael claimed that due to Sandra’s actions, his relationship with his children had been permanently ruined. Michael’s claim does not specifically describe when these acts took place, and several of the acts describe predate the Judgment of Divorce. In his claim, Michael discussed the times Sandra humiliated and threatened Ms. Ortiz, the woman Michael was involved with. Michael also claimed that Sandra trained and manipulated the parties’ son, William, to ignore and humiliate Michael, and to dig up dirt on Michael for any post-divorce litigation.
Sandra’s attorney informed Michael’s attorney that this claim belonged in the Family Part, not the Law Division. Sandra’s attorney also informed Michael’s attorney that the claims created frivolous litigation, and that the claims were prohibited under the statute of limitations and the Settlement Agreement. In January of 2015, Sandra filed a motion to transfer the case to the Family Part. In February of 2015, Sandra’s motion to transfer the case to the Family Part was granted. The court stated that New Jersey Rule 5:1-2(a) provides that all claims arising out of a family relationship (or family-type relationship) are to be brought in the Family Part. The court found that this claim arose out of a family relationship because the parties are formerly husband and wife. The court further noted that not all claims are to be brought in the Family Part just because the parties are former spouses; tort claims can be brought in the Law Division when they are independent from or unrelated to the divorce and equitable distribution. However, the court held that public policy requires that Michael’s claim for IIED is brought in the Family Part because the claim is based on Sandra’s alleged meddling with Michael’s relationship with the children. The court reasoned that claims such as this should be brought in the Family Part as part of a suit for custody and parenting time because the best interests of the children will be the main focus.
Sandra also filed a motion to dismiss Michael’s complaint, a motion for attorneys’ fees, and a request for frivolous litigation sanctions in January of 2015. The court granted Sandra’s motion to dismiss in April of 2015 because the issues Michael raised had already been settled during the divorce proceedings and outlined in the parties’ Matrimonial Settlement Agreement. The court granted Sandra partial attorneys’ fees and denied Sandra’s request for frivolous litigation sanctions. The court found that Michael’s claims did not meet the standard for IIED because the alleged conduct did not meet the standard of outrageous and extreme; however, the court denied Sandra’s request for frivolous litigation sanctions because Michael’s claims were not without merit and were not frivolous.
On appeal, the New Jersey Appellate Division analyzed whether the Law Division was appropriate in transferring this case to the Family Part. The Appellate Division agreed with the lower court’s decision to transfer the complaint to the Family Part. The New Jersey Appellate Division cited New Jersey Court Rule 5:1-2(a), which states that claims originating out of a family relationship are to be brought before the Family Part. The court found that Michael’s claims clearly stemmed entirely from Sandra’s alleged meddling with Michael’s relationship with the children. The court also cited Segal v. Lynch, 413 N.J. Super. 171, in which it previously decided that matters such as this should be brought in the Family Part. In that case, the court found that the Family Part has the authority and knowledge to fix manipulations and mistreatments by one parent against the other, while protecting the children from emotional harm. Ultimately, the Appellate Division found this issue to be undisputed and clear on its face, and affirmed the order transferring the complaint from the Law Division to the Family Part.
The New Jersey Appellate Division also affirmed the lower court’s decision to grant Sandra’s motion to dismiss. The court found that Michael did not meet the standard required for a claim of IIED. The court reasoned that the conduct Michael alleged was not extreme or outrageous. The court also held that many of Michael’s claims occurred over two years ago, and were therefore time-barred by the statute of limitations, as well as the waiver in the Settlement Agreement. Lastly, the Appellate Division affirmed the lower court’s determination that frivolous litigation sanctions were inappropriate. The court found that Michael’s claims were reasonable and somewhat credible.
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