Approved Opinions for the Week of August 21, 2017

20-2-4047 E.S. v. H.A., N.J. Super. App. Div. (per curiam) (39 pp.) The parties have engaged in a lengthy matrimonial and post-matrimonial dispute resulting in the parties divorcing, a finding that defendant-father sexually abused the parties’ minor son, the grant of sole custody to plaintiff-mother, and an award of attorney fees against defendant-father. In two appeals, defendant-father challenged the trial court’s findings of sexual abuse and preconditions for future applications for parenting time as well as the grant of attorney fees. Plaintiff-mother appealed the denial of her reconsideration to reduce the counsel fee award to judgment as well as an award of additional fees for making the motion. The court reversed those provisions of the orders which required defendant-father to “comply with [certain] requirements” “[p]rior to” making “any application for parenting time” with his son, but otherwise affirmed; the court affirmed denial of plaintiff-mother’s motion for reconsideration. The court noted that defendant-father failed to object to admission of certain evidence and that such admissions of prior bad acts was unavailing. However, the court reversed as to requiring defendant-father to admit his wrongdoing prior to application for parenting time as a violation of his Fifth Amendment rights against self-incrimination. Further, such orders directly threatened defendant-father’s parental rights because he may not petition for modification unless and until he waives his privilege against self-incrimination and admits “wrongdoing.” As the family court should not reach a conclusion as to defendant-father’s ability to parent prior to seeking a modification, the court vacated those provisions requiring preconditions. The court otherwise affirmed all other orders. (Approved for Publication)

2-4056 Kamienski v. State of N.J., Dept. of Treas., N.J. Super. App. Div. (Espinosa, J.A.D.) (32 pp.) This case presents us with questions of first impression regarding the interpretation of provisions of the Mistaken Imprisonment Act (Act), N.J.S.A. 52:4C – 1 to – 7, relating to eligibility, the burden of proof, damages and “reasonable attorney fees.” Plaintiff was convicted of two counts of purposeful murder and felony murder and drug conspiracy charges. His murder convictions were vacated after the Court of Appeals for the Third Circuit directed that a writ of habeas corpus be issued. His drug conspiracy conviction remained undisturbed. Released after serving more than 20 years in prison, he brought this action under the Act, seeking more than $6 million in damages and $1 million in attorney fees. After granting summary judgment to plaintiff, the trial court awarded him a judgment of $433,230. We reverse the grant of summary judgment, concluding the federal decision granting plaintiff’s habeas corpus petition did not satisfy his burden to establish by clear and convincing evidence “he did not commit the crime for which he was convicted,” N.J.S.A. 52:4C – 3(b), as a matter of law. We also conclude plaintiff’s drug conspiracy conviction does not render him ineligible under N.J.S.A. 52:4C – 6. Because a remand is necessary, we also provide guidance to the trial court regarding how damages should be calculated under the Act prior to its 2013 amendment, and by concluding the “reasonable attorney fee” recoverable under N.J.S.A. 52:4C – 5(b) is limited to fees incurred in the civil litigation under the Act. (Approved for Publication)