NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1911-23
BERENICE RUA,
Plaintiff-Appellant,
v.
LUIS RUA,
Defendant-Respondent.
Submitted April 30, 2025 – Decided May 19, 2025
Before Judges DeAlmeida and Puglisi.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-0904-12.
Jardim, Meisner, Salmon, Sprague & Susser, PC, attorneys for appellant (Jessica Ragno Sprague, on the briefs).
Luis Rua, appellant pro se.
PER CURIAM In this post-judgment matrimonial action, plaintiff Berenice Rua appeals
from September 1, 2023, October 6, 2023 and February 21, 2024 Family Part
orders; specifically, the provisions of the orders granting defendant Luis Rua's
motion to establish a child support obligation for the parties' oldest son D.R.
(Darren),1 retroactive to July 24, 2022, and amending defendant's child support
obligation for the parties' other two children, J.R. (John) and G.R. (Georgia),
retroactive to April 29, 2022; and denying plaintiff's cross-motions to declare
Darren emancipated, enforce the division of defendant's military pension,
enforce prior orders, and for attorneys' fees.
On appeal, plaintiff argues the trial court erred by: 1) failing to deem
Darren emancipated and establishing a child support obligation for Darren; 2)
retroactively granting child support for Darren and retroactively amending child
support for John and Georgia; 3) failing to enforce the division of defendant's
military pension; 4) failing to enforce previous court orders; and 5) failing to
grant plaintiff attorneys' fees and costs. We affirm in part and reverse in part.
1 We use initials and pseudonyms to protect the privacy of the children. R. 1:38-3(f)(6). A-1911-23 2 I.
The parties were married in 2003 and were granted a divorce from bed
and board in 2012 and a judgment of divorce in 2015, which incorporated the
parties' marital settlement agreement (MSA). In June 2022, all three children
resided with plaintiff in New Jersey and defendant resided in Florida.
We first discuss the series of orders on the parties' competing motions
regarding emancipation, child support, enforcement of prior orders and
attorneys' fees.
On consent of the parties, a May 31, 2022 order granted defendant's
requests to relocate Darren to Florida and transfer legal and physical custody of
Darren to defendant upon his relocation. After his graduation from high school
in June 2022, Darren moved in with defendant on July 24, 2022. As a result,
defendant's child support obligation for Darren was terminated as of the
relocation date. Darren did not immediately commence higher education,
instead he worked full-time.
The May 31, 2022 order further required the parties to attend mediation
to address issues of child support, pension benefit distribution and parenting
time.
A-1911-23 3 The parties did not reach an agreement and again filed competing motions.
The resulting September 1, 2023 order denied without prejudice defendant's
request for child support on behalf of Darren and plaintiff's requests to deem
Darren emancipated and for recalculation of child support for John and Georgia.
The court also denied plaintiff's requests to require defendant to become current
on his child support arrears, pending the determination of whether Darren was
emancipated. The court further ordered defendant to provide proof of Darren's
full-time enrollment in trade school within seven days of the order.
Upon the court's receipt of proof of Darren's enrollment in trade school,
the October 6, 2023 supplemental order denied plaintiff's request to deem Darren
emancipated and granted defendant's request for child support for Darren,
effective July 24, 2022 until April 13, 2023. The court also granted the parties'
joint request to modify defendant's child support obligation for John and
Georgia, which it recalculated effective April 29, 2022. The court denied
plaintiff's request to require defendant to immediately become current on his
child support arrears, instead setting a weekly arrears payback amount.
On the parties' subsequent motions, the February 21, 2024 order denied
plaintiff's request to vacate her child support obligation for Darren and granted
in part her request to require defendant to submit complete GI Bill information
A-1911-23 4 from Darren's school. The court ordered defendant to provide plaintiff the
complete financial assistance Darren was receiving through the GI Bill or the
United States Department of Veterans Affairs (the VA) within twenty-one days
of the order.
As to the parties' issues regarding the distribution of their pensions, the
September 1, 2023 order and October 6, 2023 supplemental order denied in part
plaintiff's request to find defendant in violation of litigant's rights for failing to
comply with the MSA and denied without prejudice her requests for enforcement
of the division of defendant's military pension and to establish her share of
defendant's pension as non-modifiable alimony. The court found defendant was
not in violation of litigant's rights and instead ordered the parties to cooperate
with an evaluation of their respective pensions and effectuate the division of
their retirement assets pursuant to their MSA within forty-five days of the order.
The February 21, 2024 order granted plaintiff's requests to find defendant
in violation of litigant's rights for failing to comply with the evaluation of his
pension and denied her requests to require defendant to pay her share of his
pension as non-modifiable alimony, for reimbursement of costs she paid for
defendant's pension evaluation, and to set arrears for defendant's failure to
provide plaintiff her share of his pension.
A-1911-23 5 With regard to plaintiff's attempts to enforce prior orders, the September
1, 2023 order and October 6, 2023 supplemental order granted in part plaintiff's
request to require defendant to immediately pay a $4,340 outstanding attorneys'
fee award and instead reduced the amount to a judgment and ordered defendant
to pay it within thirty days of the order. The February 21, 2024 order denied
plaintiff's request to find defendant in violation of litigant's rights for failure to
pay the outstanding attorneys' fee award.
With regard to plaintiff's application for attorneys' fees, all three orders
denied her requests.
II.
The scope of our review of Family Part orders is narrow. Cesare v. Cesare,
154 N.J. 394, 411 (1998). We "accord particular deference to the Family Part
because of its 'special jurisdiction and expertise' in family matters," Harte v.
Hand, 433 N.J. Super. 457, 461 (App. Div. 2013) (quoting Cesare, 154 N.J. at
413), and we will not overturn the Family Part's findings of fact when they are
"supported by adequate, substantial, credible evidence," Cesare, 154 N.J. at 412.
A reviewing court will also not disturb the Family Part's factual findings and
legal conclusions that flow from them unless they are "so manifestly
unsupported by or inconsistent with the competent, relevant and reasonably
A-1911-23 6 credible evidence as to offend the interests of justice." Ricci v. Ricci, 448 N.J.
Super. 546, 564 (App. Div. 2017) (quoting Elrom v. Elrom, 439 N.J. Super. 424,
433 (App. Div. 2015)). We review a Family Part's legal determinations de novo.
Id. at 565.
With respect to the MSA, "a question regarding the interpretation or
construction of a contract is a legal one and our review is plenary, with no
special deference to the trial judge's interpretation of the law and the legal
consequences that flow from the established facts." Barr v. Barr, 418 N.J. Super.
18, 31 (App. Div. 2011).
We first address plaintiff's contentions regarding Darren's emancipation,
the establishment of plaintiff's child support obligation for Darren and the
amendment of defendant's child support obligation for John and Georgia.
The "determination of emancipation is a legal issue, imposed when the
fundamental dependent relationship between parent and child ends." Ricci, 448
N.J. Super. at 571. A child's reaching the age of majority of eighteen is prima
facie proof of emancipation, but it is not determinative. Llewelyn v. Shewchuk,
440 N.J. Super. 207, 216 (App. Div. 2015). Once the age of majority is
established, "the burden of proof to rebut the statutory presumption of
emancipation shifts to the party or child seeking to continue the support
A-1911-23 7 obligation." Ibid. "The presumption . . . may be overcome by evidence that a
dependent relationship with the parents continues because of the needs of the
child." Ibid.
"[A] parent can bind himself or herself by consensual agreement,
voluntarily and knowingly negotiated, to support a child past majority, and such
agreement is enforceable if fair and equitable." Dolce v. Dolce, 383 N.J. Super.
11, 18 (App. Div. 2006). Settlement agreements in matrimonial matters, being
"'essentially consensual and voluntary in character, . . . [are] entitled to
considerable weight with respect to their validity and enforceability' in equity,
provided they are fair and just." Id. at 20 (alteration in original) (quoting
Petersen v. Petersen, 85 N.J. 638, 642 (1981)). "And while incorporation of a[n
M]SA into a divorce decree does not render it immutable, nor its terms solely
governed by contract law, nevertheless, if found to be fair and just, it is
specifically enforceable in equity." Ibid.
When interpreting the terms of a contract, the court's objective is to
"discern and implement the intentions of the parties." Quinn v. Quinn, 225 N.J.
34, 45 (2016). When the intent of the parties is clear, "[i]t is not the function of
the court to rewrite or revise an agreement." Ibid. (citing Pacifico, 190 N.J. at
266). Generally, courts "will not . . . make a better agreement than the parties
A-1911-23 8 themselves made." Holtham v. Lucas, 460 N.J. Super. 308, 320 (App. Div.
2019).
When determining the intent of the parties, courts "read the document as
a whole in a fair and common sense manner." Hardy ex rel. Dowdell v. Abdul-
Matin, 198 N.J. 95, 103 (2009). If the terms of a contract are clear and
unambiguous, courts should "enforce the agreement as written, unless doing so
would lead to an absurd result." Quinn, 225 N.J. at 45.
The parties' MSA provides:
3.11 Emancipation: The children shall be deemed, for the purpose of this Agreement to have become emancipated, upon the earliest happening of any of the following events:
(1) The children attaining the age of eighteen, except that if the children are still in high school or intend on enrolling in a full time course of study at a post-secondary education institution, including but not limited to college or trade school, at the time of the child's eighteenth birthday, emancipation shall then occur upon completion of the program. Attendance must be full time and continuous and shall not exceed a five (5) year program or age twenty-three (23).
Because Darren turned eighteen while still in high school, he would be
deemed emancipated under the MSA when he graduated high school unless he
intended to enroll in a full-time course of study at that time. The parties' motions
provided competing certifications on this issue.
A-1911-23 9 Plaintiff certified that when Darren moved to Florida in July 2022, he did
not enroll in college, trade school or any other higher education, and instead was
working full-time. She said that when Darren visited her for Christmas in 2022,
he had to return to Florida for work. She further stated Darren contacted her in
June 2023 and told her "he was contemplating going to trade school."
Defendant certified Darren was unable to enroll in trade school in 2022
because, by the time he became a Florida resident, there were no available spots
in the program. He further stated Darren enrolled in county college in 2022,
"where he attended an orientation, received his school student ID, official school
email, met with the advisors, and . . . toured the school during an in-person
orientation and program overview."
We are persuaded the parties' competing certifications necessitated a
plenary hearing to determine Darren's intent at the time he graduated high
school. "The critical evaluation required for emancipation determinations
typically necessitates a plenary hearing, especially 'when the submissions show
there is a genuine and substantial factual dispute[,]' which the trial court must
resolve." Ricci, 448 N.J. Super. at 574 (alteration in original) (quoting
Shewchuk, 440 N.J. Super. at 217).
A-1911-23 10 Noting the MSA "only require[d] the parties' children intend on enrolling
in a full-time course of study at a post-secondary educational institution," the
court found Darren's enrollment in trade school starting August 28, 2023 2
deemed him unemancipated under the MSA. We are persuaded this finding was
an error because the MSA provided for Darren's emancipation upon his
graduation from high school unless he intended to enroll in trade school at that
time. The court mistakenly resolved the factual dispute by accepting Darren's
enrollment in trade school fourteen months after his high school graduation as
proof of his intent to attend higher education when he graduated. We therefore
reverse the portions of the orders denying plaintiff's request to deem Darren
emancipated and remand for a plenary hearing.
Because plaintiff's child support obligation for Darren resulted from his
remaining unemancipated, we reverse the portions of the orders establishing
plaintiff's child support obligation for Darren, pending the outcome of the
plenary hearing on his emancipation.
2 Although the October 6, 2023 order stated defendant provided proof of Darren's full-time enrollment from August 28, 2023 to January 4, 2024, that document is not in the record. Plaintiff's appendix contains an August 9, 2023 email confirming Darren's program orientation on August 14, 2023. A-1911-23 11 We need not reach plaintiff's claim the court erred by failing to consider
Darren's receipt of VA benefits in establishing the child support amount and also
decline to consider plaintiff's contentions the court incorrectly established the
obligation retroactive to July 24, 2022. We leave to the sound discretion of the
trial court to determine, after a plenary hearing, whether defendant's substitution
of VA benefits for the GI Bill was in compliance with the MSA and should result
in an adjustment of plaintiff's child support obligation and the effective date of
the obligation, if one is established.
We next address plaintiff's contention regarding the retroactive
modification of defendant's child support obligation for John and Georgia.
Plaintiff challenges only the April 29, 2022 effective date of the amended child
support order, not the amount of child support.
N.J.S.A. 2A:17-56.23a prohibits retroactive modification of child support
and child support arrearages. Keegan v. Keegan, 326 N.J. Super. 289, 293 (App.
Div. 1999). In pertinent part, the statute provides:
No payment or installment of an order for child support, or those portions of an order which are allocated for child support established . . . shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification, but only from the date the notice of motion was mailed either directly or through the appropriate agent.
A-1911-23 12 [N.J.S.A. 2A:17-56.23a (emphasis added).]
As reflected in the May 31, 2022 order, defendant sought to amend his
child support obligation for John and Georgia in April 2022 and therefore the
amended obligation may be retroactive to the date he mailed that motion.
However, we are persuaded the amended obligation should have been
established retroactive to July 24, 2022, the date Darren no longer resided with
plaintiff. We therefore reverse the order modifying defendant's obligation for
John and Georgia and remand for the court to enter an amended order
establishing this obligation retroactive to July 24, 2022.3
We next turn to the division of defendant's military pension, addressing
plaintiff's contentions the trial court erred by denying her requests to require
defendant to pay her share of his pension as non-dischargeable permanent
alimony, for reimbursement of costs she incurred for the evaluation of his
pension, and for arrears on the pension commencing March 2022.
The MSA provided "[defendant] has a pension with the military and
[plaintiff] has a pension with the State of New Jersey. The parties agree to have
3 If the court establishes a child support obligation for Darren, it should subtract the parties' respective obligations and enter one child support award in accordance with the Child Support Guidelines. Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A, ¶ 15, www.gannlaw.com (2025).
A-1911-23 13 same evaluated by AllPro QDRO to determine the coverture value with the
intention of equalizing their pensions at a cost to be equally divided between
them."
The MSA also stated:
In the event that the military will not pay out [plaintiff's] share directly to her, [defendant] consents to same being classified as non-modifiable alimony, which shall be taxable to [plaintiff] and tax deductible to [defendant]. In addition, [defendant] hereby consents to the payment of this amount from any periodic payments he receives (such as wages or retired pay from any source), and this clause may be used to establish his consent, when necessary, for the entry of an order for garnishment, wage assignment or income withholding.
The May 27, 2022 order required the parties to attend mediation on issues
including pension benefit distribution. The September 1, 2023 order and
October 6, 2023 supplemental order noted both parties' pensions still had to be
evaluated and the parties did not mediate this issue as ordered. The court did
not find defendant's actions to be willful and unjustified, and therefore did not
find him in violation of litigant's rights. The court "require[d] both parties to
cooperate with the AllPro QDRO evaluation and effectuate the division of their
retirement assets, as per the parties' MSA, within forty-five (45) days of entry
of this [o]rder."
A-1911-23 14 The February 21, 2024 order noted both parties were ordered to obtain
pension evaluations and "[p]laintiff only provided her prior pension evaluation
from 2013 rather than obtaining an updated one as ordered by the court."
Because both parties failed to comply with the prior orders, the court denied
plaintiff's requests for reimbursement of costs and to set arrears.
The court also denied plaintiff's request for defendant to pay her share of
his pension as permanent non-dischargeable alimony pursuant to the MSA
because she "failed to provide the court with sufficient basis for this request."
We review an order to enforce litigant's rights under Rule 1:10-3 for abuse
of discretion. Wear v. Selective Ins. Co., 455 N.J. Super. 440, 458-59 (App.
Div. 2018). A Family Part judge "possesses broad equitable powers to
accomplish substantial justice" and may tailor an appropriate remedy for
violation of its orders. Finger v. Zenn, 335 N.J. Super. 438, 446 (App. Div.
2000).
"Rule 1:10-3 provides a 'means for securing relief and allow[s] for judicial
discretion in fashioning relief to litigants when a party does not comply with a
judgment or order.'" N. Jersey Media Grp. Inc. v. State, Off. of Governor, 451
N.J. Super. 282, 296 (App. Div. 2017) (alteration in original) (quoting In re
Adoption of N.J.A.C. 5:96 & 5:97, 221 N.J. 1, 17-18 (2015)). "Once the court
A-1911-23 15 determines the non-compliant party was able to comply with [an] order [or
judgment] and unable to show the failure was excusable, it may impose
appropriate sanctions." Milne v. Goldenberg, 428 N.J. Super. 184, 198 (App.
Div. 2012). "[T]he court has discretion and flexibility in fashioning an
appropriate remedy to compel compliance." Lipsky v. N.J. Ass'n of Health
Plans, Inc., 474 N.J. Super. 447, 463 (App. Div. 2023) (citing In re Adoption of
N.J.A.C. 5:96 & 5:97, 221 N.J. at 17-18).
Here, the parties entered into the MSA in August 2012. Defendant admits
he did not have his pension evaluated until November 23, 2023—over eleven
years later. Defendant was first found to have been in violation of the MSA in
June 2015, when he was ordered to "work together [with plaintiff] to effectuate
the distribution of the parties' retirement assets and comply within thirty (30)
days." However, plaintiff also failed to comply with the October 6, 2023 order
because she did not obtain an updated Qualified Domestic Relations Order
(QDRO).
"Under [the doctrine of unclean hands], '[a] suitor in equity must come
into court with clean hands and he must keep them clean after his entry and
throughout the proceedings.'" Dobco, Inc. v. Bergen Cnty. Improvement Auth.,
250 N.J. 396, 400 (2022) (second alteration in original) (quoting Am. Dream at
A-1911-23 16 Marlboro, L.L.C. v. Plan. Bd. of Marlboro, 209 N.J. 161, 170 (2012)). "[A]
court should not grant relief to one who is a wrongdoer with respect to the
subject matter in suit." Faustin v. Lewis, 85 N.J. 507, 511 (1981).
Because plaintiff did not abide by the court's October 6, 2023 order to
obtain a new QDRO evaluation and instead submitted her 2013 evaluation, the
trial court did not abuse its discretion by denying her relief. The evaluation was
necessary to effectuate the terms of the MSA, which required the parties to
equalize the value of their respective pensions.
We also discern no abuse of discretion in the court's denial of plaintiff's
request to establish her share of defendant's pension payments as non-modifiable
alimony. The MSA provided that alternative only if "the military will not pay
out [plaintiff]'s share directly to her." The court denied this request because
plaintiff failed to provide a sufficient basis for it, and plaintiff does not explain
why the court's finding was in error.
We next turn to plaintiff's argument the court erred in denying her request
to find defendant in violation of litigant's rights based on his failure to pay
outstanding attorneys' fees and costs totaling $4,340.
The September 1, 2023 order and October 6, 2023 supplemental order
reduced the $4,340 award to a judgment against defendant, with interest, and
A-1911-23 17 ordered reimbursement within thirty days of the order. The February 21, 2024
order denied plaintiff's motion to enforce litigant's rights. It is unclear what
relief plaintiff sought in filing the subsequent motion to enforce. The amount
due was already reduced to judgment, which plaintiff may enforce pursuant to
Rule 4:59-1 by obtaining a writ of execution and levying defendant's bank
accounts or garnishing his wages. Therefore, we discern no abuse of discretion
in the court's denial of the motion.
Lastly, we address the court's denial of plaintiff's request for attorneys'
fees. While all three orders on appeal outlined the factors a court must consider
in determining whether to award attorneys' fees under Rule 5:3-5(c), the orders
contained no discussion of these factors in denying plaintiff's request. In
addition, the MSA provided for an attorneys' fee award to a party prevailing on
an enforcement action, but the court did not consider whether plaintiff was
entitled to attorneys' fees under this provision. See Strahan v. Strahan, 402 N.J.
Super. 298, 317 (App. Div. 2008) (holding a trial court's failure to give effect to
an attorneys' fee provision in an MSA constitutes an abuse of discretion). We
are therefore constrained to reverse the orders denying plaintiff's requests for
attorneys' fees and remand for further proceedings.
A-1911-23 18 Affirmed in part; reversed and remanded in part. We do not retain
jurisdiction.
A-1911-23 19