Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

If You Leave The Country To Avoid Child Support, Do Not Expect Help In A New Jersey Family Court

New Jersey family courts are courts of equity. Their purpose is to give fair and just relief and protection to all members of a family. However, the experienced child support lawyers at our law firm know that the courts’ protection will likely not extend to those who display contempt for the Superior Court of New Jersey’s authority and its child support orders. As our attorneys always keep an eye out for new cases involving child support, the following is a great example of this family law reality.  

In Matison v Lisnyansky, father Mark Lisnyansky’s appeal of a default judgment giving mother, Yvietta Matison, palimony and custody of the couple’s two children was dismissed because of: the legal doctrine of fugitive disentitlement, he had an outstanding bench warrant for non-payment of child support against him, and he was not entitled to the protection of the court while he flaunted the court’s authority from overseas. 

The New Jersey Appellate Division dismissed this appeal on the legal principle of fugitive disentitlement. A father is not allowed to use the protection of the judicial system to appeal a palimony and custody default judgment if he remains outside of the country to avoid arrest on an outstanding child-support bench warrant.  

Mark Lisnyansky appealed from a June 20, 2014 trial court order which denied his motion to vacate a default judgment dated May 1, 2013. Default judgment is a binding judgment in favor of either party based on some failure to take action by the other party. Most often, it is a judgment in favor of a plaintiff when the defendant has not responded to a summons or has failed to appear before a court of law. The failure to take action is the default. The default judgment is the relief requested in the party's original petition. If a defendant in a lawsuit fails to respond to a complaint in the time set by law, then the plaintiff  can request that the default, or failure, be entered into the court record by the clerk, which gives the plaintiff the right to get a default judgment.  A defendant who fails to file an answer or other legal response when it is due can request that the default be set aside, but must show a legitimate excuse and a good defense to the lawsuit.

 This default judgment awarded Yvietta Matison palimony and custody of the couple’s twin children, who were born in 2004. Palimony is a term used to describe the division of property or alimony-like support paid to one partner in an unmarried couple by the other after a breakup. Members of unmarried couples are not legally entitled to such payments unless they've made an agreement about it. Before the default hearing, a warrant for Mark’s arrest had been issued because of his failure to pay court-ordered child support. Under Rule 1:10-2, a parent is subject to criminal contempt proceedings when the “parent fails to abide by a court-ordered child support obligation.” On the day of the hearing, Mark was in Russia and did not personally appear before the trial court. 

Yvietta testified that before she came to the United States in March 2006, Mark bought a home valued at approximately $ 1.9 million in Franklin Lakes and paid for significant renovations to the home. In addition, he also provided a nanny, interior decorator, and secretary. During this time he returned to Europe for business, and Yvietta remained in the Franklin Lakes home with the children and the nanny. Later, Mark sold the property and Yvietta and children subsequently moved to Tenafly where the children were enrolled in private school. Mark continued to provide Yvietta support from abroad. 

In 2012 Mark stopped making support payments for his children. As a result, Yvietta obtained a court order for child support. The order, dated April 27, 2012 stated, “A writ of Ne Exeat shall remain entered against defendant,” and required that a “bond or alternate security, if any, shall be posted in an amount to be determined by the Court upon receipt of defendant’s revised Case Information Statement.” The order further stated that “the Warrant for defendant’s arrest shall remain outstanding until he satisfies his support arrears and complies with the other terms of this Order.”

After many adjournments, the court scheduled the issue for trial on December 4, 2012. Mark tried to get another adjournment but the trial court denied his request. He then failed to appear for the trial and discharged his attorney. The court then entered a default against him and held a four-day hearing on Yvietta’s claims for relief. On May 1, 2013 the trial court entered a default judgment. Mark later moved to discharge the default judgment, one day prior to the one-year limit set forth in Rule 4:50-2. When this motion was denied, Mark filed this appeal. Even though Mark initially submitted himself to New Jersey’s jurisdiction by filing for relief here, after the warrant was issued he left the country and became a fugitive. The child support bench warrant first issued in 2012 remained outstanding against him. Neither party having raised the issue, the New Jersey Appellate Division directed the parties at oral argument to brief the issue of fugitive disentitlement. 

The fugitive disentitlement doctrine restricts a fugitive from seeking relief in the judicial system whose authority he or she evades. This doctrine is applicable to both civil and criminal cases. The standards for application of the doctrine were set forth by Justice long in the 2002 New Jersey Supreme Court case of Matsumoto v. Matsumoto. First, the party against whom the doctrine is to be invoked must be a fugitive in a civil or criminal proceeding. Moreover, his or her fugitive status must have a significant connection to the issue with respect to which the doctrine is sought to be invoked. Furthermore, the invocation of the doctrine must be necessary to enforce the judgment of the court or to avoid prejudice to the other party caused by the adversary’s fugitive status. And finally, invocation of the doctrine cannot be an excessive response. 

Justice Long stressed that the fugitive disentitlement doctrine is not to be imposed as a punishment, but as an invocation of the courts inherent power to enforce its orders “against those who have evaded them by fleeing either physically or constructively.” In Matison v. Lisnyansky, the father had been avoiding his court-ordered responsibility to support his two children while at the same time seeking to be heard by the court with regard to other issues in the litigation. He wanted to avoid the imposition of the doctrine because one of the issued in the case involves custody. The New Jersey Appellate Division agreed that the doctrine was not generally consistent with a proper analysis of the best interest of the child. Mark had been afforded contact with his children by way of continued “supervised parenting time to be arranged as between the parties.” He offered no alternative custodial plan, nor did he complain about custody throughout the litigation. He waited until the absolute last possible date to file a motion to vacate default judgment. The New Jersey Appellate Division stated that he could always reopen the issue of custody should he be in a position to offer his children a viable alternative custodial arrangement. Still, the appellate panel refused to afford him the protection of the court while he continued to flaunt and insult the court’s authority from overseas. Therefore, the New Jersey Appellate Division dismissed the appeal. 

If you face a child support issue here in New Jersey, please do not hesitate to contact my office today.