Jail Credit

State v. Allen - A discussion

[Unpublished Decision of the Appellate Division - Decided September 18, 2009]

The facts in brief: The defendant pled guilty in Middlesex County to second-degree robbery pursuant to an agreement with the State. He was sentenced to a six-year term of imprisonment, one year less than the sentence the State recommended, subject to the No Early Release Act. Also pursuant to the plea agreement, the sentence was concurrent with a sentence the defendant was already serving in Mercer County, for another second-degree robbery. He was awarded "gap time" credits for the 97-day period between his sentencing in the two counties.

[Gap time is relevant when a defendant, who has been sentenced previously to a term of imprisonment, is sentenced again for a different offense committed prior to the imposition of the earlier sentence. In that circumstance, the defendant is credited at the time of the second sentence for the time of imprisonment served on the prior sentence.]

He was arrested for and confined pursuant to the Mercer County charge between January 20, 2005, and his sentencing in Mercer County on March 10, 2006, and was therefore awarded jail credits for those 415 days as time served on the Mercer County sentence. On January 28, 2005, eight days after he was arrested and confined in Mercer County, he was arrested for the Middlesex County robbery. Because he was already confined on the Mercer County charge, the judge did not award jail credits against the Middlesex County sentence.

Defendant did not appeal from the judgment of conviction, but instead filed a petition for post-conviction relief, claiming entitlement to jail credits against his Middlesex County sentence. The trial judge denied the petition.

The issues: The defendant raised five issues on appeal: (1) Should he have been given jail time credit against his Middlesex County sentence from January 28, 2005, through March 10, 2006, in addition to the 97 days' gap time? (2) Was the sentence imposed illegal? (3) Was the defendant denied effective assistance of counsel, resulting in his guilty plea? (4) Should the PCR (post-conviction relief) Court have conducted an evidentiary hearing to determine the issues raised in defendant's post-conviction relief petition? (5) Is reversal required because of the cumulative effects of the errors during the sentencing hearing and the ineffectiveness of appointed trial counsel?

The court's holding: The arguments raised in Points 2, 4, and 5 lack sufficient merit to warrant discussion. The arguments raised in Point 3 was not raised at the trial level, and therefore cound not be considered on appeal.

The trial court's decision regarding sentencing was affirmed.

The Appellate Division determined that the trial court did not err by declining to exercise discretion and award duplicate jail credits to the Middlesex County sentence that had already been awarded against the Mercer County sentence. Although neither the Criminal Code nor the Court Rules address the propriety of duplicating jail credits in this fashion, jail credits are generally understood to apply only to confinement attributable to the offense that gave rise to the sentence, and impermissible if the confinement is due to the service of a prior-imposed sentence or another charge. Because the defendant's confinement as of January 20, 2005, was attributable to the charge pending in Mercer County, the trial court's refusal to award them against the Middlesex County sentence was consistent with precedent. It also did not deprive the defendant of the benefit of his plea agreement, which was for concurrent sentencing, not sentences that would end on the same date.

The end result: The defendant had to serve his sentences as set forth by the trial judges in Mercer and Middlesex Counties, with the sentences running concurrently but the Middlesex County sentence ending at a later date than that in Mercer County.

What does all of this mean to you: If you are already in jail pending trial on two separate charges at the same time, pursuant to two separate offenses, your "time served" jail credits can only be awarded against one of the sentences, the one pertaining to the offense for which you were actually being held in custody.

Appellate Review, Business Ownership, and Support

Catherine Romania v. Nicholas Mattera - A Discussion

[Unpublished Decision of the Appellate Division - Decided September 4, 2009]

The facts in brief: After 17 years of marriage, Romania filed a complaint for divorce on May 10, 1999. The parties had five children, aged fourteen, eleven, nine, seven, and four at the time the complaint was filed.

The divorce was contentious, including domestic violence complaints, municipal court complaints for interference with custody and harassment, and claims of malicious prosecution. The parties retained a psychologist and psychiatrist to assist in determining the best custody and visitation arrangement for the children, one of whom described the children's situation as living in a "war zone."

The trial regarding financial issues ancillary to the divorce was conducted separately after a failed attempt at mediation.

Both parties were attorneys. After the children were born, Romania became a partner in Mattera’s firm, later leaving to work part-time in another firm for an hourly wage. Mattera continued to run his own law firm. He did not keep the finances separate, instead paying household bills and expenses directly from the firm’s account and intermingling the funds.

The firm’s income fluctuated throughout the years. Romania retained two experts to determine the actual disposable income from the business for the purpose of evaluating alimony and child support, and Mattera one.

The parties stipulated to the value of the marital home and that Romania’s share of Mattera’s $1.8 million dollar law firm was $627,000. The parties also had several investment accounts.

The trial court ordered that Mattera pay permanent alimony, child support for the five children, health insurance for the children, and two thirds of the college expenses. The court also ordered an equal division of assets, subject to several debits and credits. One such credit was to Romania for one half of $330,000, the sum withdrawn by Mattera from his profit-sharing account. Mattera was not granted credit for funds Romania withdrew from accounts which was used to pay for major repairs on the marital residence and litigation expenses. The trial court explained that it considered Mattera’s share of those withdrawals to be Mattera’s contributio to Romania’s litigation expenses, in effect ordering that Mattera pay some of Romania’s counsel fees. It also acknowledged that the funds used to repair the residence increased its value, thereby increasing the amount Mattera and Romania would both receive with regard to equitable distribution. The court also directed additional credits for Romania, including one half of the tax she paid on joint assets for several years and one half of Mattera’s vehicle. A credit was given to Mattera to reimburse him the full payment he made to an escrow account. Both parties were denied other requested credits.

The court also determined custody and visitation.

The issues: Was the court biased, having an impact on it’s discretionary determinations regarding custody and parenting time, alimony, child support, and equitable distribution?

The court's holding: Affirmed in part, and remanded for reconsideration of alimony, child support, and college expenses.

The trial court had expressed concern that the children were being damaged by the actions and hostility of both parties, simply reflecting the observations of all the professionals involved in the custody recommendations and determination. Beyond that, the judge was obligated to, and did, make findings of credibility.

Because the judgment of the trial court concerning custody and parenting time was based on findings of fact adequately supported by the credible evidence, and because the review of the Appellate Division is limited to solely determining whether the findings of fact could reasonably have been reached based on that evidence, it could not alter the judgment. The Appellate Division is forbidden from undertaking an independent analysis of the trial court record or making it’s own credibility findings.

The standard for appellate review of a trial judge’s determinations regarding equitable distribution is one of “abuse of discretion.” The Appellate Division cannot “disturb decisions that have reasonable support in the record as a whole and are consistent with the law.” The question is whether the “division is clearly unfair or unjustly distorted by a misconception of law or findings of fact that are contrary to the evidence.” The Appellate Division cannot, in essence, hold a new trial, and so the decision will be affirmed even if the court would not have made the same division of assets as the trial judge.

The denial of additional credits to Mattera was not an abuse of discretion resulting in an unfair division of assets, according to the Appellate Division, given the financial circumstances of the parties and the likelihood that Romania would have been awarded pretrial counsel fees.

It was also not an abuse of discretion when the trial court refused to award Romania interest on her share of Mattera’s law practice, since during that same period of time, she has use of the marital residence and significant assets, a portion of which were later awarded to Mattera. The use of those assets were used in lieu of the interest she demanded.

The standard used by the Appellate Division to review alimony and child support awards is also “abuse of discretion.” If the decision has reasonable support in the record, the Appellate Division cannot touch it.

The Appellate Division found that the trial court’s determination that Mattera’s net income approximated $778,000 per year had no support in the record. The trial court relied upon the testimony of Mattera’s accountant, who assumed unreasonably and contrary to the history of the firm’s finances, that the law firm’s receipts and expenses would remain constant throughout the year. The Appellate Division also found that the evidence would permit a finding of net business revenue higher than that reported, but that business revenue cannot be equated with net income available to Mattera. The Appellate Division therefore found that both support orders were based upon a mistaken foundation, requiring remand to the trial court for an additional determination.

The end result: The Appellate Division upheld most of the judgment of the trial court, and so equitable distribution and custody were not altered. The issues that were determined by Mattera’s disposable income, those of child support, alimony, and college payments, were sent back to the trial court for a new trial.

What does all of this mean to you? Although you may not be happy with the trial court determinations regarding your divorce, the Appellate Division is very limited in its ability to make changes. The higher courts cannot re-try your case, or make credibility determinations, they can only determine whether, under the standards dictated by the specific issue in question, the trial court made such a large error that the decision must be overturned.

In addition, if you or your spouse owns a business, even when the business and personal funds and expenses are intermingled, the income of the business is not equivalent to the income of the person, and cannot be used outright for determination of support amounts.

Equitable Distribution and Child Support

Nancy M. Hreha-Coloccia v. Leonard Coloccia - A Discussion

[Unpublished Decision of the Appellate Division - Decided September 2, 2009]

The facts in brief: After twenty years of marriage, the parties were divorced on March 3, 2008. Two daughters were born of the marriage, aged 18 and 20 as of the date of the Appellate Division's opinion.

Before the parties were married, the husband owned a house in Clifton, that he bought while the parties were dating. He put down a deposit of $60,000 to $80,000, with no financial contribution from the wife. The parties lived in that house from their marriage in October of 1987, until 1999, when they sold the house to purchase a home for $206,000 in Branchville, NJ.

Shortly after the parties were married, the wife discovered that the husband owed $10,000 to the IRS. She paid part of this debt from settlement proceeds from a car accident. Later, in 2003, the husband failed to report a withdrawal from his IRA on his tax returns, causing another tax liability, which was then paid from joint funds. In 2005 and 2006, the wife filed separate income tax returns; the husband did not file tax returns.

At some point during the marriage, a TV satellite company damaged the roof of the marital home, resulting in a $3,800 settlement to the parties. When the husband's support obligation had not yet commenced, the wife used $200 of those funds to make other repairs to the house and the balance to pay the mortgage, taxes, and shelter expenses for herself and the parties' daughters in September of 2005.

From August 2007 to February 2008, the older daughter lived with the husband.

After trial, the judge required both parties to file joint state and federal income tax returns for the years 2005 - 2007. In addition, he set the husband's child support arrears at $3,793.67, but gave the husband credit of $910 for the months when the older daughter resided with him, $1,800 for his 50% interest in the settlement with the TV satellite company, and $1,000 for the husband's 50% interest in two joint bank accounts, reducing the amount of arrears to $83.67.

The issues: Was the judge's ruling with respect to equitable distribution of the marital home, awarding her 45% of the equity, plain error? Did the judge improperly reduce the child support arrears due from the husband pursuant to a pendente lite order? Could the court compel the parties to file joint tax returns for 2007 and amended joint tax returns for 2005 and 2006, or was this plain error?

The court's holding: Affirmed in part and reversed in part.

The judge's ruling with regard to the equitable distribution of the marital home should not be disturbed. The standard of plain error requires that the trial judge's decision remain undisturbed if there is sufficient credible evidence on the record to support it. Property allocation, specifically, is reviewed under an abuse of discretion standard, requiring a finding that the decision was made without rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.

Here, because the husband used substantial premarital assets to purchase the Clifton home, and the proceeds from the sale of the Clifton home were used to purchase the Branchville home, although it was nine years before the parties were divorced, it was reasonable for the trial court to award her a smaller portion of the equity in the home than the husband, where she made no financial contribution to the purchase of the Clifton home.

The judge partially improperly reduced the husband's obligation for child support arrears. Because the New Jersey statutes prohibit the retroactive modification of child support obligations, the $910 credit for the period of time the parties' older daughter lived with the father was impermissible. The other two credits were permissible as payments from the husband's assets toward his child support obligation.

It was plain error for the court to order the filing of joint tax returns, in light of the husband's history of underestimating his income to the IRS, and the fact that the wife had already filed tax returns for those years, it would be unfair to force the wife to risk exposure to another tax liability because of the husband's failure to file and pay.

The end result: The wife received 45% of the equity in the marital home as equitable distribution of that asset. The husband's child support arrears obligation was adjusted to $993.67. The wife was permitted to file her own separate 2007 tax return and to refrain from filing amended joint tax returns for 2005 and 2006.

What does all of this mean to you? If you contribute the entirety, or possibly even large majority, of the funds to purchase the marital home, it is likely that you can and will receive a partial credit for those funds during equitable distribution.

If you are obligated to pay child support, but the custody arrangement alters and your child or children reside, even temporarily, primarily with you, you should file an application in court to amend the child support order. Should you wait, the child support obligation cannot be amended retroactively, and you will still be obligated to pay the full amount of support despite the change in residence.

Although the court will often order parties to file joint tax returns to maximize their potential refund or minimize their potential tax liability, the court will not force you to risk a greater liability due to the wrongdoing of your spouse, if proof exists.