GREGORY JON JURCZAK VS. LORI ANN PULEO (FM-14-0512-11, MORRIS COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: January 29, 2021
• Docket: A-4170-18T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4170-18T1

GREGORY JON JURCZAK,

Plaintiff-Appellant,

v.

LORI ANN PULEO, f/k/a LORI ANN JURCZAK,

Defendant-Respondent. _________________________

Submitted September 14, 2020 – Decided January 29, 2021

Before Judges Hoffman and Suter.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-0512-11.

Laufer, Dalena, Jensen, Bradley, & Doran, LLC, attorneys for appellant (Mario N. Delmonaco, on the briefs).

Townsend, Tomaio & Newmark, LLC, attorneys for respondent (Angela V. Tafro, on the brief).

PER CURIAM Plaintiff Gregory Jon Jurczak appeals the October 24, 2018 Family Part

order enforcing a Marital Settlement Agreement (MSA) between himself and

defendant Lori Ann Puleo, and requiring him to pay $33,529 for unreimbursed

childcare expenses for an au pair, out-of-pocket medical expenses, parent

coordinator expenses, and extracurricular activity and cell phone expenses. He

contends he did not violate the MSA or other post-judgment orders. He also

appeals the December 10, 2018 order granting defendant's request for attorney's

fees and the May 3, 2019 order denying his request for reconsideration of these

orders. We affirm the Family Part orders, finding no abuse of discretion.

I.

Plaintiff and defendant were married in 2001 and have one child, Nancy, 1

who was born in 2007. Their Dual Judgment of Divorce was entered on August

9, 2011 and incorporated the MSA. Exhibit A of the MSA is the Final Order

Fixing Custody and Parenting Time entered with the consent of the parties.

They agreed under this order to share joint legal custody of Nancy. Defendant

is the parent of primary residence (PPR). They agreed each was the first option

for childcare in the event the other was not available "for any extended period."

1 "Nancy" is a fictitious name intended to maintain her confidentiality. R. 1:38- 3(d)(1). A-4170-18T1 2 Paragraph twenty-nine of the MSA addressed work related childcare.

Both parties agreed "an au pair or nanny was appropriate . . . ." The cost was

$200 per week plus a $7500 fee to the au pair agency. They agreed to share

these costs by defendant paying fifty-eight percent and plaintiff paying forty-

two percent.

More than fifteen post-judgment orders have been entered from 2012 to

2019, addressing issues the parties have raised in motions and orders to show

cause about custody, parenting time, payment of expenses, who will provide

childcare and who will pay.

In June 2018, defendant filed a motion requesting an order that plaintiff

was in violation of the MSA and three other post-judgment orders. She alleged

plaintiff failed to pay his portion of many expenses, including past and future

expenses for an au pair. Defendant requested a judgment against plaintiff for

unreimbursed expenses. She also requested reengagement of the parent

coordinator after her services were terminated by plaintiff.

In defendant's supporting certification, she alleged plaintiff owed over

$36,592.98 for unreimbursed expenses under the MSA and post-judgment

orders. Defendant claimed plaintiff would not attend mediation and did not

respond to repeated inquiries from her attorney about his nonpayment of

A-4170-18T1 3 expenses. Defendant alleged her job responsibilities required her to have an au

pair for "responsible, reliable childcare for [Nancy]." They have used several

au pairs in the past. She incurred au pair expenses from 2013, and although she

notified plaintiff, he has not paid his portion. Defendant also requested

plaintiff's contribution to Nancy's extracurricular expenses, summer camp,

uncovered medical expenses per the MSA and cell phone expenses per the

January 7, 2016 order. She alleged plaintiff unilaterally terminated the parent

coordinator contrary to their February 26, 2014 consent order. Defendant

requested counsel fees and costs of $22,520.14 for her motion.

Plaintiff filed a cross-motion in response, seeking to hold defendant in

violation of the MSA, the May 20, 2013 and the January 7, 2016 orders, and

raising a number of issues including that the parties should be responsible for

their own work-related childcare services. Plaintiff acknowledged terminating

services of the parent coordinator. He denied he would not attend mediation.

He denied he owed money to defendant for childcare. Plaintiff alleged

defendant unilaterally hired a nanny despite other relatives who could assist with

childcare. Plaintiff claimed they did not intend to continue an au pair once

Nancy was in school full time.

A-4170-18T1 4 In her reply certification, defendant continued to allege that plaintiff did

not pay the additional expenses required by the MSA. She explained why she

needed an au pair, that plaintiff would no longer agree to an au pair and that he

also objected to her aunt or mother providing childcare. She argued that plaintiff

withheld consent for Nancy to attend certain health care providers.

The court's October 24, 2018 order enforced a February 26, 2014 order by

requiring the parties to immediately re-engage the services of the parent

coordinator because of the "toxicity" between the parties. The court denied

plaintiff's request that the parties pay for their own work-related childcare. It

enforced plaintiff's obligation to contribute forty-two percent of the au pair fees,

finding he failed since 2014 to pay these fees.

The court found plaintiff was in violation of litigant's rights. There were

"significant arrearages," demonstrating that plaintiff failed to comply with the

MSA and court orders dated May 20, 2013, February 26, 2014, and January 7,

2016. The court rejected plaintiff's argument that the MSA "expired" or that

any of the other orders cited by plaintiff and entered after the MSA relieved him

of his obligations under the MSA to contribute to childcare. The court found

plaintiff owed $35,821 for childcare and other unreimbursed expenses and

reduced this to a judgment. The court rejected defendant's request for attorney's

A-4170-18T1 5 fees for prior motions but would allow her to resubmit a certification for fees

related just to this motion.

In November 2018, plaintiff requested reconsideration of the October 24,

2018 order. Plaintiff explained that defendant violated their May 2013 consent

order by retaining an au pair without his approval. He objected to payment of

her counsel fees because they were "inflated and unrelated" to the motion.

Referencing the $35,821 in unreimbursed expenses, plaintiff claimed "[t]he

monies that weren't paid resulted from [defendant's] noncompliance with the

[May 2013 consent order]." Plaintiff acknowledged he terminated the services

of the parent coordinator "because she was unprofessional and ineffectual in

solving problems."

Defendant filed a cross-motion to enforce the October 24, 2018 order,

arguing plaintiff was willfully in violation of its terms, and requested counsel

fees. Defendant alleged she repeatedly asked plaintiff to pay his portion of the

unreimbursed expenses. She claimed he unreasonably withheld consent on

several issues including the selection and payment for an au pair.

On December 10, 2018, the Family Part judge awarded defendant

$11,286.14 for attorney's fees and costs. The court considered factors under

Rule 5:3-5 and Rule 4:42-9, finding it relevant that the fees were incurred to

A-4170-18T1 6 enforce existing orders. However, the court reduced the award "to some degree"

based on the parties' respective financial positions. The court also reviewed

counsel's certification, finding some entries did not relate to this motion and

subtracted those entries.

In February 2019, the court heard oral argument on plaintiff's motion for

reconsideration and defendant's cross-motion. By order dated May 3, 2019, the

Family Part judge denied plaintiff's motion, finding he did not show the court's

decision was palpably incorrect or rested on an irrational basis. The court noted

plaintiff's factual assertions and arguments were largely the same as in his

original certification. Plaintiff did not highlight for the court what it had

overlooked. The court determined the MSA is "binding and enforceable."

The court found the parties agreed to hire an au pair for work-related

childcare. None of the prior orders cited by plaintiff relieved the parties of their

obligation to pay for childcare.

The court found plaintiff willfully and intentionally failed to comply with

the court's October 24, 2018 order. This finding was based on "numerous

exchanges via text and email that indicate the [p]laintiff has taken positions that

are unreasonable." However, the court reduced the amount of unreimbursed au

A-4170-18T1 7 pair expenses to $33,529 by deducting monies paid to defendant's aunt for

childcare.

The court explained it enforced the February 26, 2014 order about the

parent coordinator based on the parties' difficulty in communication and

coparenting. The court found a parent coordinator was in Nancy's best interest;

it was not an arbitrary or capricious requirement.

The court denied defendant's request for attorney's fees without prejudice.

The economic disparity between the parties did not favor this relief, fees were

previously awarded to defendant, and plaintiff's motion for reconsideration

"yielded [him] one small award."

Plaintiff appealed the order denying reconsideration. He has since

amended his notice to appeal to include the underlying October 24, 2018 order

and the December 10, 2018 order for attorney's fees.

On appeal, plaintiff raises these arguments:

I. THE COURT IMPROPERLY GRANTED RESPONDENT RELIEF THAT WAS UNWARRANTED AND UNSUPPORTED BY ALL COURT ORDERS ISSUED SUBSEQUENT TO THE ENTRANCE OF THE PARTIES' MARITAL SETTLEMENT AGREEMENT ON AUGUST 9, 2011.

II. THE COURT EXPRESSED ITS MAY 3, 2019 DECISION BASED UPON A PALPABLY INCORRECT AND IRRATIONAL BASIS, AND

A-4170-18T1 8 FURTHER FAILED TO APPRECIATE THE SIGNIFICANCE OF PROBATIVE, COMPETENT EVIDENCE.

III. THE COURT IMPROPERLY GRANTED RESPONDENT'S REQUEST FOR COURT COSTS AND COUNSEL FEES AS THE COURT FAILED TO CONSIDER THE REQUIRED FACTORS SET FORTH IN [RULE] 4:42-9, AS WELL AS THOSE FACTORS SET FORTH IN N.J.S.A. 2A:34-23.

II.

We accord "great deference to discretionary decisions of Family Part

judges," Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012)

(citations omitted), in recognition of the "family courts' special jurisdiction and

expertise in family matters . . . ." N.J. Div. of Youth & Family Servs. v. M.C.

III, 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413

(1998)). "The general rule is that findings by the trial court are binding on

appeal when supported by adequate, substantial, credible evidence." Cesare,

154 N.J. at 411-12 (citing Rova Farms Resort, Inc. v. Invs. Ins. Co., 65 N.J. 474,

484 (1974)). We "should not disturb the 'factual findings and legal conclusions

of the trial judge unless [we are] convinced that they are so manifestly

unsupported by or inconsistent with the competent, relevant and reasonably

credible evidence as to offend the interests of justice.'" Id. at 412 (quoting Rova,

65 N.J. at 484). However, "[a] trial court's interpretation of the law and the legal

A-4170-18T1 9 consequences that flow from established facts are not entitled to any special

deference." Hitesman v. Bridgeway, Inc., 218 N.J. 8, 26 (2014) (quoting

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378

(1995)).

A.

Plaintiff argues that paragraphs twelve through sixteen of the court's

October 24, 2018 order should be vacated because the parties have not agreed

on an au pair who satisfies the guidelines in the court's May 20, 2013 order. He

argues defendant's June 25, 2018 certification did not bring to the court's

attention relevant portions of other court orders, which then mislead the court

into thinking he did not comply with the MSA. Plaintiff argues that without

agreement, childcare is to be provided by maternal and paternal family members.

Plaintiff claims defendant failed to include the court's August 15, 2013

order that did not permit defendant to unilaterally retain the au pair. He also

contends he should not have to pay attorney's fees because he complied with

court orders.

We find no abuse of discretion by the Family Part judge because his

decisions were supported by substantial, credible evidence in the record. The

trial court very clearly considered all of the prior orders, the evidence in the

A-4170-18T1 10 record and heard from the parties before making its decision. With respect to

the au pair, the trial court's October 24, 2018 and May 3, 2019 orders found that

plaintiff "refused to meet a substantial number of his obligations under the MSA

and various post-judgment orders." Although defendant tried mediation and

other efforts to resolve their disputes, the trial court found "plaintiff did not

intend to compromise with the [d]efendant, nor comply with the MSA or any

subsequent orders with regard to the childcare provider expenses." The record

in this case, having been carefully reviewed, fully bears out the trial court's

conclusions.

Moreover, although plaintiff cites to various orders in the record, we agree

that there was no abuse by the trial court as none of the orders vacated the MSA's

requirement that plaintiff pay forty-two percent of the childcare costs and that

their standard during the marriage was to use an au pair.

B.

Plaintiff contends the Family Part judge abused his discretion by denying

plaintiff's motion for reconsideration. According to plaintiff, the May 3, 2019

order was based "on the incorrect belief and assumption that the parties had

mutually agreed upon, and hired an au pair or rematch au pair" in June 2014.

Defendant argues that had the court reviewed the February 22, 2019 transcript,

A-4170-18T1 11 it would have been clear they had not agreed on an au pair, and that defendant

could not unilaterally hire one based on the court's August 15, 2013 order.

Plaintiff argues the orders entered after the 2011 MSA "obviate" his

payment toward childcare costs because they were to use relatives for childcare.

He contends nothing in paragraph twenty-nine of the MSA allows any party to

unilaterally decide who would be the au pair. Plaintiff argues he terminated the

parent coordinator within the terms of the February 26, 2014 consent order and

that these costs were unnecessary because the service provided was ineffective.

"[T]he decision to grant or deny a motion for reconsideration rests within

the sound discretion of the trial court." Pitney Bowes Bank, Inc. v. ABC Caging

Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015) (citing Capital Fin. Co.

of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div. 2008)).

Reconsideration should only be used for those cases which fall into that narrow

corridor in which either: "1) the [c]ourt has expressed its decision based upon a

palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either

did not consider, or failed to appreciate the significance of probative, competent

evidence." Ibid. (alterations in original) (quoting Asterbadi, 398 N.J. Super. at

310). "[A] trial court's reconsideration decision will be left undisturbed unless

it represents a clear abuse of discretion." Ibid.

A-4170-18T1 12 The Family Part judge did not abuse his discretion in denying

reconsideration. The record does not support plaintiff's arguments that the

challenged orders were palpably incorrect or irrational. The trial court found

previously that plaintiff did not intend to compromise with defendant. Nothing

in the record shows plaintiff would agree with defendant on childcare. In his

reconsideration motion, plaintiff did not provide new evidence or point out what

the court did not consider. Instead, plaintiff simply raised the same issues,

arguing with the court that its decision was made in error. As the trial court held

"[a] motion for reconsideration is not a mechanism for unhappy litigants to

attempt once more to air their positions and re-litigate issues already decided."

This does not satisfy the standard for reconsideration. The trial court was correct

in denying plaintiff's motion.

C.

Plaintiff contends the court erred by awarding attorney's fees to defendant.

Plaintiff argues he did not violate the MSA or court orders. Rather, it is

defendant who engaged in self-help by unilaterally hiring an au pair contrary to

the May 30, 2013 order.

We will not reverse a decision regarding counsel fees "absent a showing

of an abuse of discretion involving a clear error in judgment." Tannen v.

A-4170-18T1 13 Tannen, 416 N.J. Super. 248, 285 (App. Div. 2010). An application for counsel

fees must be supported by a certification of the attorney's services. R. 4:42-9(b).

"[T]he party seeking to be awarded attorneys' fees ordinarily bears the burden

of proving that they are reasonable, and . . . contractual fee-shifting provisions

are strictly construed . . . ." Green v. Morgan Props., 215 N.J. 431, 455 (2013);

McGuire v. City of Jersey City, 125 N.J. 310, 326-27 (1991) (noting that

contractual fee-shifting provisions are strictly construed). In evaluating whether

to award fees, the trial court is to assess factors set forth in Rule 5:3-5(c).

The record does not support an abuse of discretion. The court considered

the factors set forth in Rule 5:3-5(c) and Rule 4:42-9 in awarding fees against

plaintiff to enforce existing orders, but reduced them to take into consideration

plaintiff's financial position and that he had prevailed on a small issue. It then

declined to award other fees on reconsideration.

Affirmed.

A-4170-18T1 14