spring 2012 njapm newsletter · 3 volume 16, issue 2 — spring 2012 should be encouraged if the...

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Volume 16, Issue 2 — Spring 2012

President’s Message……..

NJAPM Peer Groups…….. Page 1

Editor’s Column………….. Page 2

10 Tips for Foreclosure…. Page 3

Marital Accounting………. Page 5

2011 Conference Photos.. Page 6

Family Case Law………… Page 8

Divorce Apprenticeship… Page 10

Employment Group……… Page 10

Membership Report….….. Page 11

Nominating Committee.…. Page 11

NJAPM Committees……… Page 12

President’s Message by Carl J. Cangelosi, JD, APM

New Jersey Association of

Professional Mediators

80 Veronica Avenue

Somerset, NJ 08873

Volume 16, Issue 2

Spring, 2012

In This Issue

Upcoming NJAPM Events

ANNUAL ADVANCED CIVIL MEDIATION SEMINAR

The Imperia Hotel, Somerset Saturday, March 10, All Day

ELDER MEDIATION TRAINING NJ Law Center, New Brunswick Saturday, March 29, All Day

ANNUAL DIVORCE MEDIATION SEMINAR

The Imperia Hotel, Somerset Saturday, May 19, All Day

NJAPM 8-HOUR BASIC SKILLS MEDIATION

Crowne Plaza, Monroe Township Wednesday, June 13, All Day

NJAPM GENERAL MEETING

New Jersey Law Center New Brunswick, 6 PM — 8:30 PM

Wednesday, May 9 Wednesday, June 13

Please Visit Website Updates

& 2012 Schedule www.njapm.org 800-981-4800

I almost always like my divorce mediation clients. They are good people in a bad place in

their lives. But occasionally, I really dislike a client. One recently seemed intent on trying to push as many of the other spouse’s buttons as possible and to antagonize me at the same time. These sessions are difficult because you not only have to deal with the normal types of issues but your own as well—how to display neutral affect, patiently explain, and so forth. After the session I was fatigued and was talking to my wife, who is a psychologist, about the session and my tiredness. Psychologists and mediators have a lot of the same practice features. We mostly practice alone and do not get much impartial feedback. This can leave us very isolated. I asked her what she does in

these situations. Her answer was that her peer groups were very important for her to keep balance and perspec-tive. Good information from a psy-chologist and good advice for all of us who practice alone. We need a place where we can go and talk with other people in a similar situation. It’s important to keep that fatigue from turning into burnout. So my recommendation is this. NJAPM’s peer groups are an excel-lent place for us to gather and talk about what is going on with our prac-tices. It will become increasing diffi-cult to help others in our demanding practices if we don’t also take care of ourselves.

NJAPM County Peer Groups — Contact Information Chairperson, Katherine G. Newcomer, Esq. (Ret.); Also Hunterdon/Somerset Leader

[email protected]; 908-439-9140

Carl Cangelosi, JD, APM is NJAPM president. He practices divorce and civil mediation in Princeton and Plainsboro, and also serves as NJAPM’s director of divorce mediation training.

Bergen: Robert J. Lenrow [email protected] 201-986-1821 Camden/Burlington/Gloucester Counties: Armand Bucci [email protected] 856-663-2237; Essex: Open; Need 2 Co-Leaders Please Contact Katherine if Interested Middlesex/Union: Marv Schuldiner [email protected]; 732-963-2299

Monmouth: David Leta [email protected]; 732-458-6674 Mercer: Gabrielle L. Strich [email protected]; 732-438-3880; Morris County: Beverly & George Hays, [email protected] 973-267-9429 Note: Meetings are held monthly. If you are on the NJAPM General Listserv, you should be receiving invitations to all peer group meetings. Please contact Marv Schuldiner if you are not receiving messages.

NJAPM Mediation News

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Editor

Anju D. Jessani, MBA, APM

NJAPM Officers President

Carl J. Cangelosi, JD, APM

Immediate Past President

Robert J. McDonnell, MS, APM

Executive Vice President

Risa Kleiner, Esq., APM

Vice President Anna M. Delio, Esq., APM

Treasurer

Marvin Schuldiner, MBA, APM

Secretary

Anna-Maria Pittella, Esq., APM

NJAPM Directors Bennett Feigenbaum, Esq., APM Donald Vanarelli, Esq., APM

(2009-2012)

Hon. Elaine Goldsmith (Ret.) Katherine Newcomer, JD

(2010-2013)

Jerald Harvey, APM James Marlow, CFP, MSc, MDR,

MBA, JD (2011-2014)

NJAPM 80 Veronica Avenue Somerset, NJ 08873

800-981-4800

E-mail: [email protected]

Website: www.njapm.org

Editor’s Column by Anju D. Jessani, MBA, APM

Membership in NJAPM is open to all interested individuals with annual dues of $100. The views expressed in this newsletter reflect the opinions of individual contributors and do not necessarily reflect the opinions of NJAPM. P l e a s e c o n t a c t t h e E d i t o r a t [email protected] for permission to reprint articles, and for submission of manuscripts for publication. We reserve the right to edit copy submitted.

T his issue of Mediation News

includes a message from NJAPM president, Carl

Cangelosi talking about how our peer groups can help mediators overcome fatigue. These groups provide a non-judgmental forum to talk about cases and share strategies. If you haven’t yet attended a peer group meeting I urge you to do so. There is a list of NJAPM county coordinators on page 1. Felicia Farber has contributed an article with tips for foreclosure mediators. She talks about the importance of subject matter expertise, and has included some excellent websites links. Larry Thoma and Noël J. Capuano, specialists in business valuations, provide a plain English analysis of cash flow and spending analyses, or what are commonly referred to as “Lifestyle Reports”. We have included photographs from our November 19th annual conference that will give you a flavor for both the breath and depth of the organization, and the varied interests of our members. Thanks to conference co-chairs Pam Zivari and Risa Kleiner, and the conference committee for your their hard work. We have our usual columns including Carl Cangelosi family case law update, Anna Delio and the membership committee’s report, an explanation by Bob McDonnell on the role of the nominating committee, an update by Janine Dickey on the employment mediation interest group, and news from Risa Kleiner and Anna-Maria Pittella on the NJAPM divorce apprenticeship program. You will notice how many new

members we have in our membership report. I counted forty-seven new members since the 2011 spring issue of the newsletter. Most of these new members are graduates of our introductory civil and divorce mediation programs. Eleven years ago, I wrote an article for www.mediate.com suggesting that most people considering careers in mediation should add mediation to their service offerings rather than quitting their day jobs, at least at the start of their mediation practices. I said at the time that “build it and they will come does not apply to mediation” I still believe that advice holds true. At the same time, I’m glad to see that our organization and the field of mediation is still as vibrant as ever, and is able to attract new recruits. With the coming of spring, NJAPM has some exciting seminar offerings. In addition to the one day annual advanced civil mediation training, and the one day annual divorce mediation seminar, for the first time, NJAPM will be offering a one day elder mediation training. NJAPM will also be a co-sponsor for ADR Day, scheduled for Friday, June 8th. These events not only serve to educate mediators, but also s e rve a s gr ea t ne tworking opportunities. Please join us! I hope that our articles, all provided by NJAPM members, prove useful to you. If you have a proposal for an original article please c o n t a c t m e a t m e [email protected].

Mediation

News A Publication of the New Jersey Association of Professional Mediators

Anju D. Jessani, MBA, APM, served as NJAPM president from 2005-2007. Her practice, Divorce with Dignity Mediation Services has offices in Clinton and Ho-boken. She can be reached at www.dwdmediation.org.

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10 Tips for Foreclosure Mediators by Felicia T. Farber, Esq., APM

A ny time now, an avalanche of foreclosure actions is ex-pected to cascade upon the

New Jersey state court system. When that happens, all the under-utilized foreclosure mediators currently sit-ting idle will most likely be sum-moned for their services. Whether you conduct foreclosure mediations rarely or regularly, I have compiled a list of suggestions that hopefully will assist you in becoming a more effective mediator: 1. Explain Foreclosure Acronyms

& Terminology to Borrowers. Most borrowers at foreclosure mediations stare blankly as attorneys and hous-ing counselors toss around acronyms such as “BPO”, “RMA” and “PITI”.* They are so appreciative when the mediator fills them in on the meaning of these foreign terms, all of which impact their success at achieving a loan modification. Therefore, it is important for you as the mediator to be familiar with foreclosure terminol-ogy so you can tell borrowers what belongs in a P&L Statement or why they’re signing a Dodd-Frank certifi-cation and 4506T. It adds to your credibility as a mediator if you prove yourself to be knowledgeable and well-versed in foreclosure lingo. *BPO=Brokers Price Opinion; RMA=Request for Mortgage Assistance; PITI=Principal, Interest, Taxes and Insurance. 2. Recommend Representation. I have found that the borrowers who navigate the foreclosure mediation process the quickest and achieve the best results are those who are repre-sented by both a HUD/NJHMFA cer-tified housing counselor and an attor-ney. Housing counselors are free to borrowers currently involved in or facing potential foreclosure and should be encouraged if the borrower is unrepresented. Housing counselors are extremely knowledgeable about

the ever-changing state and federal programs available to assist finan-cially distressed homeowners. They also provide financial management and budget counseling services. In addition, borrowers who cannot afford a private attorney may qual-ify for a free regional program at-torney to help them obtain a worka-ble solution for their mortgage de-linquency. CDR staff have contact information for housing counselors and program attorneys who service their counties. 3. Steer Borrowers to Online Re-

sources. Borrowers and inexperi-enced attorneys can find a wealth of information about the state foreclo-sure mediation program online. Starting with the New Jersey Courts at www.judiciary.state.nj.us or www.njcourts.com, they can click on “Foreclosure Prevention Re-sources” and get answers to FAQs regarding foreclosures and foreclo-sure mediation in both English and Spanish. They also will find a de-scription of the Foreclosure Media-tion Program, forms, samples of notice of motion and certifications, and other related information. A list of HUD/NJHMFA-certified hous-ing counseling agencies can be found at the New Jersey Housing and Mortgage Finance Agency website www.nj.gov/dca/hmfa or by completing an online form on www.lsnj.org/index.aspx. Those who would like to understand more about the federal Home Affordable Modification Program (HAMP), learn the steps to apply for a HAMP modification or download the requi-site forms should be referred to www.makinghomeaffordable.gov. 4. Borrowers to Set Money Aside.

Most borrowers do not set any money aside even though they are

delinquent in their mortgage pay-ments. It is not uncommon for home-owners who have not paid their mort-gages for several years to reveal at mediation that they have absolutely no savings, even though the hardship that caused them to default in the first place has ended. Of course, this is worrisome for the lenders who ques-tion how these same borrowers will be able to begin making their mort-gage payments again while paying all their other expenses. Moreover, if a borrower is not eligible for a federal modification program but is offered an in-house loan modification or re-payment plan option instead, the lender might require a significant down payment from the borrower. Borrowers should be advised at the outset of foreclosure mediation that if they have not begun saving money, it is prudent for them to do so at once. They need to pretend they are paying their mortgage each month and put that money aside be-cause their ability to retain their home might depend on having some cash in reserve. 5. Suggest Borrowers Get Their

Own Credit Reports. Before lenders will offer borrowers a loan modifica-tion, they will pull their credit re-ports. Very often borrowers at the foreclosure mediation table are sur-prised to learn that the monthly ex-penses they’ve listed on the docu-mentation prepared for the lenders are different than what is showing up on their credit reports. Sometimes debts appear that have already been paid, or other mortgages on proper-ties which the borrowers no longer possess are still reflected on the credit reports. There are also in-stances in which the amounts of ex-penses are stated incorrectly. Bor-

(Continued on page 4)


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rowers can be denied if their monthly expenses are too high or they show a monthly income deficit, so it is vital to make sure the figures shown on their credit reports are accurate. 6. Familiarize Yourself With Exist-

ing Programs. There are many pro-grams in place to assist financially distressed homeowners. As a foreclo-sure mediator, you should be aware of the major ones. Here are some ex-amples: HAMP, referenced above, seeks to lower borrowers’ monthly mortgage payments (including taxes, insurance and homeowners associa-tion dues) to 31% of their monthly gross income. The New Jersey HomeKeeper Program provides un-employed or underemployed borrow-ers who qualify with a deferred-payment second mortgage loan up to $48,000 at 0% interest. Eligible bor-rowers can apply online at www.njhomekeeper.com . The Freddie Mac Standard Modification, which just took effect January 2012, helps at-risk borrowers by reducing their current principal and interest payments by at least 10%. Further information about this new program can be found www.freddiemac.com/

s i n g l e f a m i l y / s e r v i c e /

standard_modification.html. 7. Know What Stops a Sheriff’s

Sale. While foreclosure matters are in mediation, the lenders typically agree to adjourn any scheduled sheriff’s sales and judges are remiss to allow sheriff’s sales to go forward. In fact, the last provision of the Mediation Continuation Accord (MCA) states: “No Sheriff’s Sale will be scheduled until the mediation session noted above is completed within the terms of this agreement.” Once mediation has ended, however, borrowers will need to pursue other options to stay a sheriff’s sale: i) Borrowers can re-quest two statutory adjournments of the sheriff’s sale directly from the sheriff pursuant to N.J.S.A. 2A:17-36; ii) They can request a stay of the

(Continued from page 3) sheriff’s sale from the judgment creditor; iii) Borrowers can make a motion to stay the sheriff’s sale based on the facts and circum-stances of their particular case; and iv) They can consult with a bank-ruptcy attorney to determine whether filing for bankruptcy, which will stay the sheriff’s sale, is a desirable option. 8. Encourage Borrowers to Make

Informed Decisions. Before bor-rowers decide to reject a lender’s loan modification offer—typically because their homes are underwater and the new monthly mortgage pay-ments are high— the borrowers need to fully understand their offer and explore other non-retention op-tions. Sometimes borrowers’ highly emotional states can impede their ability to make an informed deci-sion and a mediator can help them to view their situations more clearly. Borrowers need to realize that when their arrears are re-capitalized back into their mortgage it results in a new, higher principal balance and therefore the modified mortgage payments may be close to or exceed their original monthly payments. During the foreclosure mediation process, borrowers should research alternative housing options so they can make informed decisions as to whether they want to keep their homes should they re-ceive loan modification offers that are higher than anticipated. They need to answer the basic question: where will they go if they lose their primary residence? Finding a nice home or apartment in a suitable area at an affordable price may not be feasible and borrowers need to know where they’re going to live before rejecting a lender’s offer. 9. Determine Contact Informa-

tion. In the event the borrower needs to provide documentation to the lender, obtain specific contact information as to the person and place where such documentation

will be delivered and include same on the MCA. If the borrower is submit-ting items directly to the lender, it is good practice for the borrower to also send a copy of the documentation to the lender’s attorney. Email is usually the preferred method for furnishing documents since it is fast, easy and traceable. If the borrower can contact the lender’s representative directly to confirm the documents have been received and the borrower’s financial package is complete, then future un-necessary mediations can be avoided. 10. Discuss Liens & Judgments.

Inform borrowers that lenders will run a title search on the property in foreclosure before offering a perma-nent loan modification. Therefore, any lien or judgment on the property which is revealed by the title search will have to be cleared up before a mortgage workout solution can be finalized. Sometimes borrowers have satisfied a debt but if they haven’t filed a Warrant for Satisfaction of Judgment the judgment still appears and will blemish their title. Providing advance notice to borrowers that they cannot have any liens or judgments on their property will afford them the opportunity to resolve any title issues in a timely fashion so they do not jeopardize a potential loan modifica-tion.

* * * * *

As you can see from the above tips, there is much more involved in mediating foreclosure matters than simply jotting down a list of out-standing documents. A knowledge-able and effective foreclosure media-tor can assist both parties in achiev-ing the best result in the shortest time.

Felicia T. Farber, Esq., APM, is a fore-closure mediator for the NJ Office of Dispute Settlement. She has a civil, commercial & divorce mediation practice in North Jersey, specializing in employ-ment, estate and construction disputes. She is also an arbitrator for FINRA. Email her at: [email protected].

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Cash Flow and Spending / Lifestyle Analysis: What the Numbers Do and Do Not Reveal by Larry Thoma, JD, CFE, CPA/ABV/CFF/CITP, DABFA & Noël J. Capuano, CPA/CFF, CVA

F orensic experts are frequently requested to provide a variety of analyses/reports in the

marital dissolution process. The fol-lowing is a discussion of cash flow and spending analyses, or what are commonly referred to as “Lifestyle Reports”. Attorneys and mediators should be aware of what types of in-formation these reports provide in order to guide their clients through the marital dissolution process. Cash Flow v. Income Analysis

A cash flow analysis is frequently requested when one spouse owns an interest in a business.1 The owner spouse’s actual cash flow typically cannot be quantified via a simple re-view of the individual and business tax returns, as the latter represent tax-able income, not cash flow. In addi-tion to a salary and distributions, there may be additional forms of both cash and non-cash compensation (“perks”) or cash flow. Given the fact that owner compensation is dis-cretionary, the business owner may choose to have the business pay for a family membership at the local coun-try club, cell phones for the family, auto expenses and other personal ex-penses. There may also be a share-holder loan, or other form of debt financing which provide additional sources of cash flow. Confusion often arises when a non-titled spouse sees income re-ported on the joint tax return, but is told by the forensic expert that cash flow available for support is consid-erably different. Taxable income and cash flow are not inter-changeable; one does not indicate the presence of the other. In the case of a pass-through entity (Partnership or S-Corp), the income of the business “passes through” to the owner, who

then pays tax at the individual level. How the income was used, how-ever, dictates whether the owner receives actual cash flow. In a sim-ple example, if Company B has $100,000 of reported income, $20,000 in depreciation (a non-cash expenditure) and $80,000 in loan repayments, that $100,000 of in-come translates into only $40,000 of available cash flow.

As stated previously, it is impor-tant to understand what information the cash flow analysis provides. We have seen reports purporting to be cash flow analyses which are nothing more than a recapitulation of the parties’ income tax returns. This does not provide a meaningful representation of the cash flow available for support, and reliance on such a report will likely lead to an erroneous support figure. Therefore, while cash flow re-ports may come in many different formats, it is imperative that attor-neys and mediators understand the information that the forensic ac-countant is providing to ensure that it is sufficient for his/her require-ments.

Spending Analysis v. Lifestyle

Analysis

Just as there are variations in what some experts call a cash flow analy-sis, the “Spending” or “Lifestyle” analysis can also vary. Some experts make adjustments to the historical spending of the parties to arrive at what they consider to be the lifestyle. For example, the parties may have vacationed each year at the home of a relative. The expert may “impute” the cost of the vacation into the al-leged spending in order to arrive at what they consider to be the “lifestyle”. Obviously, this may in-volve a certain degree of misplaced subjectivity. Other experts refrain from making any adjustments other than the re-moval of non-recurring items, such as a major home improvement, or the inclusion of expenses that were paid through an owner spouse’s business. In this instance, there is no subjectiv-ity involved, and the end product is a presentation of the parties actual spending, from all sources, during the time period in question, typically a three to five year period prior to the filing of the complaint. Some spending analysis reports do not provide information regarding the sources used to fund the spend-ing. Depending on whether the spending could reasonably be sup-ported by the parties’ apparent cash flow, it may be necessary to go a step further and determine the sources of funds used to fund the spending. This would be considered to be a full and complete analysis of the parties cash flow and spending or a complete life-style analysis. As an example, we’ve seen a five year spending analysis where the


In utilizing reports from

various sources, attorneys and mediators must be aware of the pitfalls or potential

shortcomings that may be inherent in the varied reports.


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NJAPM 2011 Conference, Saturday, November 19, 2011

Conference presenters, Robert Lenrow, Judge John Harper, N.Janine Dickey, and Nick Stevens

Conference presenters, Elizabeth Clemants, Marv Schuldiner, Christ Tinari, Robert J. Brown, and Nicole Lyons

NJAPM President, Carl Cangelosi Conference Co-Chair, Risa Kleiner, Featured Speaker, U.S. Department of Justice, Joanna Martinson Jacobs, Conference Co-Chair, Pam Zivari

Featured Speaker, F. Peter Phillips, International Corporate/Community Mediation

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The Imperia, Somerset, NJ (Photographs by Anju D. Jessani & Anna-Maria Pittella)

Generous Registration Desk Volunteers and EasySoft and New Jersey Collaborative Group Vendors

Plenary Sessions with an International Focus and Engaging Audio Visuals... and a Transfixed Audience

Plus Breakout Sessions with a Focus on Enhancing Mediation Skills and Techniques

An Opportunity For Building Professional Friendships


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Family Law Case Update, Compiled by Carl Cangelosi, JD, APM

T ortorice v. Vanartsdalen,

App. Div.—In a visitation dispute between plaintiffs,

the child's paternal grandparents, and defendant, the child's maternal grand-mother who had been given custody of the child by her daughter, the court held that the status of "psychological parent" does not afford defendant the same constitutionally mandated autonomy as natural or adoptive par-ents. The court said that while cus-tody can be transferred by a parent, parental rights or autonomy cannot. Accordingly the court applied the best interests standard rather than the more difficult to prove avoidance of harm standard. September 30, 2011. 20-2-3813 Brock v. Brock, App. Div.—Plaintiff appealed from the post-judgment order requiring him to pay $61,275 of his daughter's college ex-penses as well as $2,500 in counsel fees and denying plaintiff credit for the approximately ten years of child support payments that he made on behalf of his son after the child's emancipation. Because neither party complied with the procedures set forth in their property settlement agreement (PSA) and material issues of fact were contested, the appellate panel reversed and remanded for a plenary hearing. On remand, the trial court was directed to consider whether the parties, by their actions, implicitly agreed to modify the PSA so that plaintiff's continued child sup-port payments for the son were paid in lieu of a college contribution for the daughter. October 17, 2011; Not approved for publication. 20-2-3963 Jacobson v. United States, App. Div.—The court held that the United States enjoys sovereign immunity under 42 U.S.C.A. § 659 from liabil-

ity for damages arising from the Social Security Administration’s failure to withhold disability benefit payments pursuant to a state child-support garnishment order. October 18, 2011; 20-2-3985 Dudas v. Dudas, Ch. Div., Family Pt.—The court held that the hus-band's post-complaint increase in income is, in fact, relevant, and will be considered in determining the extent of his alimony obligation to his wife. April 11, 2011; 20-4-4144 Happold v. Happold, App. Div.—Defendant appealed from the lim-ited duration alimony awarded in the divorce judgment entered after a brief trial. The parties were married in 1989 and plaintiff filed for di-vorce in 2008. Plaintiff was born in 1965. Defendant argued that it was error to award 10 years of limited duration alimony instead of perma-nent alimony after the parties' long-term marriage. The appellate panel reversed the trial court's alimony decision saying that the decision ignored well-settled precedent that absent exceptional circumstances not present here, permanent ali-mony is appropriate in the case of a long-term marriage like that of the parties. The court noted that defen-dant had no employment experi-ence; she dropped out of high school; she was unfamiliar with basic family finances; she began her 28-year relationship with plaintiff when she was 16; her child-rearing responsibilities were continuing; she contributed to plaintiff's career by caring for the children and main-taining the household; and she re-mained financially dependent on a husband whose income established an ability to pay. The panel re-manded for reconsideration of the relevant statutory factors and the

alimony award. November 21, 2011; Not approved for publication 20-2-4346

Lowy v. Lowy, App. Div.—Defendant appealed from the Family Part order that required him to pro-vide his ex-wife with a Jewish di-vorce, a Get. The final judgment of divorce incorporated the decision of a Bais Din (rabbinical court) which addressed an array of issues and pro-vided that if arrangements for a Get were made, the husband would pay for it. However, there was no require-ment in the rabbinical court decision to require defendant to provide plain-tiff with a Get. Therefore the judge exceeded his authority when he so ordered. December 21, 2011; Not approved for publication. 20-2-4650 P.P. v. N.P., App. Div.—In this post-divorce matrimonial case, plaintiff-wife appealed the orders restraining her from relocating within the state and establishing parenting time. The court affirmed, finding that since the parties' property settlement agree-ment preludes any attempt by either to alienate the children from the other party and plaintiff failed to proffer any specific reasons for wishing to relocate to northern New Jersey, the trial judge did not err by preventing her move. Nor did the judge err in not conducting a plenary hearing when he granted defendant two weeks visitation in the summer 2010, as he was not modifying an existing schedule but establishing one, obviat-ing the need to conduct a plenary hearing or find changed circum-stances. December 23, 2011; Not ap-proved for publication; 20-2-4680 Emma v. Evans, App. Div.—In Ronan v. Adely, 182 N.J. 103 (2004), and Gubernat v. Deremer,


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spending vastly exceeded the parties recurring sources of available cash flow. Counsel for the titled spouse suggested that the report was wrong and that the preparer did not consider monies transferred from savings that were used to fund the lifestyle. The report was not wrong, it simply did not include a cash flow analysis which would have indicated the sources used to fund all of the spend-ing. While the spending analysis is a valuable tool in any marital dissolu-tion, it, like any other report, may have limitations. Attorneys and me-diators must be aware of what infor-mation the report does and does not provide. The most appropriate and complete ”Lifestyle Analysis” pro-vides a summary of the parties actual expenditures during a predetermined

(Continued from page 5

Family Law Update, Continued

140 N.J. 120 (1995), the Court estab-lished a presumption in favor of the choice of a parent of primary resi-dence (PPR) when seeking a change of the surname of a child born out of wedlock. In this appeal, the court rejected the argument that this pre-sumption should be applied when, following a divorce, the PPR seeks to change the surname of children born during the course of a marriage. January 20, 2012; 20-2-4953 Quijano v. Quijano, App. Div.—Defendant appealed from the Family Part order enforcing an arbitrator's decision pursuant to the parties' dual judgment of divorce providing for binding arbitration of unresolved fi-nancial issues primarily involving equitable distribution of the former marital residence. While the arbitra-

(Continued from page 8) tor’s decision was subject to appeal under the express terms of the di-vorce decree, the review was lim-ited and the defendant did not chal-lenge the award as procured by cor-ruption or fraud or claim that the arbitrator exceeded his powers or erred in his analysis of the marital home's value. January 25, 2012; Not approved for publication. 20-2-5002 Maoz v. Maoz, App. Div.—Defendant appealed from a post-judgment order compelling him to pay the mortgage balance due upon the sale of the former marital home that plaintiff occupied after their divorce. He argued that the parties' Property Settlement and Separation Agreement (PSSA) did not oblige him to pay off the mortgage, or al-ternatively, the PSSA was ambigu-

ous in that regard, requiring the court to consider extrinsic evidence to de-termine the parties' intention. The appellate panel concluded that the PSSA was ambiguous. While the lim-ited extrinsic evidence tended to sup-port defendant's interpretation, the court did not fully explore evidence of the PSSA's negotiation, subse-quent dealings of the parties, and other extrinsic evidence that could illuminate the parties' intent. The panel reversed and remanded for fur-ther proceedings. February 8, 2012; Not approved for publication. 20-2-5168

Cash Flow and Spending / Lifestyle Analysis, Continued

period of time (usually three to five years) along with a cash flow or source of funds analysis for those same years. If the available cash flow and the spending analysis can-not be reconciled because the spending exceeds the apparent cash flow, one must look further for un-reported income or other sources of funding. If the opposite is true, and the cash flow materially exceeds the spending, one should make sure that the assets of the parties reflect the growth in net worth (in cash, investments or other assets) or it may be an indication of hidden as-sets.

* * * * * In utilizing reports from various sources, attorneys and mediators must be aware of the pitfalls or po-tential shortcomings that may be

inherent in the varied reports. Know-ing which expert to ask, and what to ask for is critical to obtaining the op-timal outcome. 1 A similar analysis may also be performed for a W-2 employee with varied forms of cash and non-cash (stock options, restricted units, etc.) compensation. In these cases, available cash flow can differ sig-nificantly from taxable income.

Larry Thoma, JD, CFE, CPA/ABV/

CFF/CITP, DABFA, is a partner in WithumSmith+Brown’s Red Bank, NJ, office and serves as the director of WS+B's Firm Litigation/Valuation/Forensic Accounting Services. Noël J. Capuano, CPA/CFF, CVA, is a man-ager in WithumSmith+Brown’s Prince-ton, NJ office and specializes in litiga-tion support including business valua-tions of closely held companies. They can be reached at www.withum.com.

Carl Cangelosi, JD, APM is NJAPM president. He practices divorce and civil mediation in Princeton and Plainsboro, and also serves as NJAPM’s director of divorce mediation training.


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N JAPM is finalizing plans to launch its Divorce Mediation Apprenticeship Program.

While similar apprenticeship pro-grams are offered in some other states, this will be the first divorce mediation apprenticeship program in New Jersey. We are in the process of soliciting couples to match with an APM men-tor and divorce mediation apprentice. We have also started a list of Ac-credited Professional Mediators (APM) members who will serve as mentors, as well as a list of appren-tices seeking experience in divorce mediation under the supervision of the APM member, and have an inter-est in adding names to both lists How the Program Works

NJAPM will supply the separating or divorcing couples. Each couple will pay $150 per hour at the conclu-sion of each mediation session to the directly to the APM mentor. The APM mentor will receive an addi-tional $50 per hour from NJAPM for all mediation time up to 18 hours, upon submission of a written evalua-tion of the apprentices whom they supervise. Additionally the APM will

receive 3.00 hours of NJAPM con-tinuing education mediation credit. Apprentices pay a course fee of $1,150 ($1,300 for non-members) and agree to attend mediation ses-sions at the office of the assigned APM. Apprentices will observe and participate in 18 hours of me-diation in the office of the assigned APM, and will prepare the MOU for each case under the supervision of the APM. They also agree to complete an evaluation of the proc-ess at the conclusion. Seeking APM Members to Serve

as Paid Mentors

Mentors must be APM members in good standing. They must be willing to provide a total of 18 hours of co-mediation and supervi-sion in their own office with one or more apprentices. Mentors must agree to participate in an initial briefing, via conference call, and must complete an evaluation of each assigned apprentice. They must be willing to accept the clients assigned to them, subject to a screening for domestic violence and conflict issues.

Seeking Apprentices

We are seeking graduates of 40- hour divorce mediation training pro-grams, including NJAPM, ICLE, Center for Family & Divorce Media-tion, Rutgers School of Social Work. Apprentices must provide proof of completion of 40-hours basic divorce mediation training. Hands-on media-tion experience is helpful, but not required. Matching APM Mentors and

Apprentices

We will attempt to pair appren-tices with an APM mentors geo-graphically close to the apprentice’s office or home location. To Apply for the Apprenticeship

Program

APM members interested in serv-ing as mentors, and 40-hour divorce mediation program graduates inter-ested in serving as apprentices, should contact Risa A. Kleiner at [email protected], or Anna-Maria Pittella at [email protected].

NJAPM Divorce Mediation Apprenticeship By Risa Kleiner, Esq., APM, and Anna-Maria Pittella, Esq., APM

Employment Mediation Interest Group (EIMG)

M embers of the Employ-ment Mediation Interest Group (EMIG) have bene-

fited from a dynamic “2nd Season” of stimulating and informative monthly sessions. The fall 2011 kickoff meeting on October 19, 2011 addressed “The Impact of Employment Damages and Statutory Attorney Fees Shifting on the Employment Mediation Dy-namic.” On December 14, 2011 Howard Mankoff, Esq., a trial attor-ney and partner with Marshall Den-nehey led a candid discussion of “What Insurance Carrier Representa-

tives Want from the Employment Mediation Process.” January 25th’s topic, “Drilling Down on Tips for Better Employment Mediations,” included mediator/attorney synergy, how statutory defenses impact the mediation dynamic, strategies for breaking impasse and closing the deal. Upcoming programs: March 14, 2012 will feature Robert Lenrow and Judge John Harper on “Getting to Resolution and How to Minimize the Possibility of Being Asked to Testify.” April’s EMIG tentative agenda will include a panel discus-

sion featuring the Hon. Barbara Wecker, Nick Stevens and N. Janine Dickey, on “Lessons Learned (the Hard Way) in Employment Media-tions.” Meetings are open to all NJAPM members. Please visit the NJAPM website for meeting schedule.

Elliot Baumgart, [email protected], and N. Janine Dickey, njdickey@civil-

mediator.com, are co-chairs for the E I M G ; M a r l a M o s s , [email protected], is program chair for the EIMG.

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Membership Committee Report by Anna M. Delio, Esq., APM

W e are happy to report that NJAPM membership numbers remain strong

with a successful renewal drive in October 2011. We encourage our members to utilize our website www.njapm.org. The website allows members to eas-ily update their profile, register for events and renew their annual mem-bership. In addition, the member section includes information regard-ing topics such as low-cost liability insurance. Members who have questions about NJAPM can contact any of the Membership Committee members: Anna M. Delio, Esq., APM (Chair)

[email protected]; 201-709-3493

Jerald Harvey, APM [email protected]; 917-841-4222

David Leta [email protected]; 732-458-6674

Doreen McManimon, Esq. [email protected]

Robert J. McDonnell, MS, APM [email protected]; 973-709-0188

Gerard Scola [email protected]; 201-338-2743

Welcome New NJAPM Members

Here is a list of the new mem-bers who have joined since the fall 2011. If you just joined NJAPM, watch for your name in our next newsletter.

Simone Borger Angela Carrar George Chehanske Giovana De Oliveira Alina Denis Jarjour Patrice Dow-Nelson Alan Ehrlich Gail Evra Melissa Fecak Michael Feldman Tracy Finnegan Jim Gellman Robert Goodwin Jonathan Gordon Robin Greene Ian Grodman Joyce Hilary Chip Hoever

Elizabeth Horman Lee Howell Roger Jacobs Jonathan Kaplan Robert Kornitzer Getchel Lubke

Jessica Maddy Margaret Mahon Harpreet Mangat James McGuckin Charles McNeil Carol Meier

Mary Merla-Ramos Jennifer Mittelman Steven Monaghan Kenneth Morris Chris Murray Jeffrey Plaza Anthony Prinzo Victor Quinn Roseanne Reffner Mary Sue Schmaltz Candace Scott

Donna Snyder (Bohanan) Dianna Sofo Keron Thomas

Ifeyinwa (Fey) Ugokwe Denise Wennogle Zuline Wilkinson

Anna M. Delio, Esq., APM works as a Foreclosure Mediator for the Office of Dispute Settlement. In addition, she has a solo law practice, and mediates civil and family/divorce. She serves as Vice President for NJAPM.

Nominating Committee Report by Robert J. McDonnell, MS, APM

N JAPM’s nominating com-mittee consists of the imme-diate past president, who

serves as chair, and four additional members, each serving a four year term on a staggered basis, with a new member elected each year. The committee acts independently of the board. The current committee con-sists of Robert McDonnell, as chair, George Hays, co-chair, and members Rachel Alexander, Joan Geiger, and Patrick Westerkamp. Each January, the committee so-licits input from the membership re-garding candidates for upcoming board openings. The nominating committee selects candidates to fill the positions of president, executive vice president, vice president, treas-

urer, and secretary, as well as two directors and one member of the nominating committee. Should more than one person be nominated for a single office, the bylaws call for an election. Before the first day of March, names for consideration may be proposed by the committee, or by a group of three or more members in good standing. The president, ex-ecutive vice president and vice president, however, must be accred-ited (APM) members and have served on the NJAPM board for at least one year. All other board po-sitions require that the nominee have been a member in good-standing for at least one year.

In accordance with the bylaws, which are posted on our website, nominations are publicized to the membership by the nominating com-mittee prior to May 1 of each year. Additional candidates may be se-lected by a petition of 12 or more members in good standing by June 1. If you have questions, contact me. I can be reached at (973) 709-0188 or [email protected].

Robert J. McDonnell, MS, APM is NJAPM immediate past president. His civil and divorce mediation practice, Alliance Mediation Services, is located in Lincoln Park. His website is www.alliance-mediation.com.


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New Jersey Association of Professional Mediators 80 Veronica Avenue Somerset, NJ 08873

NJAPM COMMITTEES NJAPM Committee Name Chair or Co-Chair Phone Email Address Accreditation Nick DeMetro 973-747-6428 [email protected] Annual Conference Risa Kleiner 609-951-2222 [email protected] Annual Conference Pamela Zivari 973-668-8332 [email protected] Bylaws Committee Hon. (ret.) Elaine Goldsmith 732-963-2299 [email protected] Civil, Basic Mediation Training Marv Schuldiner 732-963-2299 [email protected] Civil, Advanced Mediation Seminar Nick Stevens 973-403-9200 [email protected] Divorce, Basic Mediation Training Carl Cangelosi 609-275-1352 [email protected] Divorce, Annual Mediation Seminar Catherine Ross 609-503-7796 [email protected] Divorce, Annual Mediation Seminar Frank Palino 732-634-5100 [email protected] Education Committee Anna-Maria Pittella 732-842-6939 [email protected] Education Committee Risa Kleiner 609-951-2222 [email protected] Judiciary Relations Hon. (ret.) John Harper 973-813-7667 [email protected] Legislative Relations Open Position NA NA Long Range Planning Carl Cangelosi 609-275-1352 [email protected] Marketing Open Position 609-683-7400 [email protected] Mediator Ethics Review Board Hanan Isaacs NA NA Mediator Quality Marv Schuldiner 732-963-2299 [email protected] Membership Anna Delio 201-709-3493 [email protected] Newsletter Anju D. Jessani 201-217-1090 [email protected] Nominating Committee Robert McDonnell 973-709-0188 [email protected] Peer Consultation /Mentoring Katherine Newcomer 908-439-9140 [email protected] Programs/General Meetings F. Peter Phillips 732-672-3222 [email protected] Website/Technology Marv Schuldiner 732-963-2299 [email protected]

spring 2012 njapm newsletter · 3 volume 16, issue 2 — spring 2012 should be encouraged if the...

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