NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 NOS. A-4873-15T1 A-2066-16T1
H.B.,
Plaintiff-Respondent,
v.
P.S.,
Defendant-Appellant. ______________________________
Argued telephonically November 5, 2018 – Decided January 9, 2019
Before Judges Yannotti, Gilson and Natali.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2624-11.
P.S., appellant, argued the cause pro se.
Respondent has not filed a brief.
PER CURIAM Defendant P.S.1 appeals from two post-judgment Family Part orders
dated June 13, 2016, and January 20, 2017. The June 13, 2016 order modified
defendant's child support obligations retroactive to April 29, 2016, but denied
modification of his alimony payments. The January 20, 2017 order denied
defendant's applications: 1) for dissolution of a restraining order; 2) to be
appointed guardian ad litem for his adult children; and 3) to compel specific
performance of the parties' second amended judgment of divorce (JOD).
We issue a single opinion disposing of these two appeals. We affirm the
January 20, 2017 order because we conclude the trial court did not abuse its
discretion in denying defendant's applications giving rise to that order.
However, we reverse the June 13, 2016 order to the extent it denied
modification of defendant's alimony payments because the trial court failed to
make the necessary factual findings for a proper adjudication of defendant's
motion. Similarly, because our careful review of the record does not reveal a
rational basis for the court's choice of April 29, 2016, as the retroactive date
for defendant's modified child support payments, we remand for the court to
make a specific finding as to that issue.
1 We use initials to protect the confidentiality of the participants in these proceedings.
A-4873-15T1 2 I.
The parties were married in June 1991 and have two unemancipated
adult children. Plaintiff H.B. filed for divorce in May 2011. On or about
February 20, 2013, she applied for an order requiring defendant to show cause
as to why he should not be restrained from contacting plaintiff, her counsel,
and the parties' children. A motion judge granted plaintiff's application on
February 21, 2013, and entered an amended order that same day imposing
interlocutory restraints against defendant pursuant to Rule 4:52-2. The
amended order was accompanied, and further amended, by a rider that awarded
plaintiff temporary custody of the children and prohibited defendant from
having any contact with plaintiff, her counsel, and the children until further
court order.
On March 26, 2013, the judge entered a dual Final Judgment of Divorce
(JOD) that dissolved the marriage and ordered the parties to submit an
amended JOD to include the terms of their settlement agreement. The court
entered an amended JOD on May 13, 2013, which incorporated the earlier
restraints, obligated defendant to pay $378 per week in child support, and
awarded plaintiff permanent alimony of $50,000 per year based on her imputed
annual income of $40,000 and defendant's annual salary of $190,000. A
A-4873-15T1 3 second amended JOD was entered on September 4, 2013, which corrected and
clarified the payment schedules for alimony and child support and, except for
certain provisions not relevant to this appeal, incorporated the earlier JODs,
including the restraints and support awards.
As amended, the JOD directs plaintiff to "cooperate in respect of
executing an[y] paperwork necessary to effectuate" a provision in the JOD that
requires defendant to maintain at least $600,000 in life insurance. With
respect to alimony, the JOD permits "modification of alimony based on
changed circumstances in accordance with the guidelines set forth in [Lepis v.
Lepis, 83 N.J. 139 (1980)] and its progeny." However, a separate provision in
the JOD, contained in a paragraph addressing the disposition of the parties'
former marital home, states that "there will [be] no reduction in alimony while
[p]laintiff is living at the former marital home."
The JOD further provided defendant with a fourteen-day window to hire
an off-duty police officer to accompany him to the former marital home to
conduct an inventory of the parties' personal property. Within seven days after
that walk-through, defendant was required to provide to plaintiff's counsel a
list of the personalty he wished to keep. Plaintiff had seven days thereafter to
respond and object, and any items in controversy were to be "formulated into
A-4873-15T1 4 one list" and a coin toss would determine which party "gets to pick the first
item off the list," with alternating selections between the parties thereafter.
The record does not reflect if defendant timely completed the list.
On July 28, 2015, defendant filed an application for modification of his
permanent alimony and child support obligations under the JOD. At that time,
the parties' children were earning undergraduate degrees, the elder daughter at
McGill University in Canada and the younger son at Dartmouth College in
New Hampshire, funded by their late paternal grandparents' educational trust.
Defendant's certification in support of his application states the former marital
residence was still in the foreclosure process at that time.
In a September 28, 2015 order and accompanying statement of reasons, a
second motion judge denied defendant's application without prejudice based on
the court's finding that defendant failed to show changed circumstances
warranted modification of either child support or alimony. Specifically, the
judge found defendant failed to satisfy "his threshold burden of showing that
he has made a meaningful effort to find" employment.
On October 16, 2015, defendant filed a motion for reconsideration of the
September 28, 2015 order. In a January 8, 2016 order, the court: 1) granted
defendant's motion for reconsideration; 2) "reserve[d] the right" to modify
A-4873-15T1 5 defendant’s support obligations retroactive to July 28, 2015; 3) scheduled a
plenary hearing for April 14, 2016; and 4) required plaintiff to file an updated
Case Information Statement (CIS).
Following the April 14, 2016 plenary hearing, the court issued two
companion orders dated April 29, 2016, which made certain discovery rulings
and scheduled ensuing plenary hearings that were conducted on May 31, 2016,
June 2, 2016, and June 7, 2016.
Defendant's expert witness, Dr. David B. Stein, testified at the May 31,
2016 hearing on the issue of defendant's employability. Dr. Stein's testimony
indicated defendant's adjusted gross income in 2011, 2012, and 2013 averaged
approximately $98,100 per year. In addition, Dr. Stein stated that defendant
was capable of earning up to $120,000 in 2016. Defendant testified that his
base salary of $50,000 per year with five percent commission on sales could
produce up to $90,000 in earnings in 2016.
At the June 2, 2016 hearing, plaintiff testified that her income in 2015
was $62,500, excluding alimony, but the company she worked for closed
toward the end of that year, so she obtained a new job earning $25 per hour
that she expected would yield approximately $50,000 in income for 2016. She
A-4873-15T1 6 also testified that the parties' lifestyle around the time of the JOD was
equivalent to someone who was earning approximately $190,000.
In a June 13, 2016 order and accompanying written opinion, the court
granted defendant's application to modify child support and reduced the
payments to $45 per week per child, retroactive to April 29, 2016. However,
the court denied modification of alimony based on defendant's failure to show
changed circumstances warranted relief as defendant's "present income and his
average income from the time of divorce were similar." The court also
determined plaintiff's continued residence at the former marital residence at all
relevant times of this litigation compelled denial of any alimony modification
under the terms of the JOD.
On or about December 9, 2016, defendant filed applications seeking to:
1) vacate the restraining order; 2) have himself appointed as guardian ad litem
for his children; 3) recover personal property from the former marital
residence; and 4) compel plaintiff to execute certain insurance documents.
The court heard oral arguments on these motions on January 20, 2017.
At the conclusion of the hearing, the judge issued an oral opinion and a written
order denying all of defendant's applications. These appeals followed.
A-4873-15T1 7 II.
Family Part rulings on applications to modify child support and alimony
are entitled to our deference on appeal absent a clear abuse of discretion.
Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012); J.E.V. v. K.V.,
426 N.J. Super. 475, 485 (App. Div. 2012). An abuse of discretion "arises
when a decision is 'made without a rational explanation, inexplicably departed
from established policies, or rested on an impermissible basis.'" Jacoby, 427
N.J. Super. at 116 (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571
(2002)). However, as settlement agreements are contractual in nature,
Harrington v. Harrington, 281 N.J. Super. 39, 46 (App. Div. 1995), we review
de novo the trial court’s interpretation of the parties' agreement that was
incorporated into their JOD. See Quinn v. Quinn, 225 N.J. 34, 45 (2016) ("An
agreement that resolves a matrimonial dispute is no less a contract than an
agreement to resolve a business dispute."); Fastenberg v. Prudential Ins. Co. of
Am., 309 N.J. Super. 415, 420 (App. Div. 1998) (explaining contract
interpretation "is a matter of law for the court subject to de novo review").
A.
Defendant argues the trial court erred in including the children's
undergraduate expenses in its modified child support award. We disagree.
A-4873-15T1 8 The Child Support Guidelines generally "are not applicable when
determining the parental obligation for child support of unemancipated college
students." Raynor v. Raynor, 319 N.J. Super. 591, 614 (App. Div. 1999). In
determining child support for college students, the court must consider the
factors provided in N.J.S.A. 2A:34-23(a). Jacoby, 427 N.J. Super. at 121-22.
Here, the court correctly determined it was "not appropriate to utilize the
Child Support Guidelines" because "neither child is commuting from home to
college." See Raynor, 319 N.J. Super. at 614. In considering the first
statutory factor under N.J.S.A. 2A:34-23(a), the court concluded:
The needs of the children are limited. Both children attend college and their room and board while away at school are covered by distributions from a [t]rust set up by their grandmother for the benefit of her grandchildren. Expenses associated with transportation to and from college during school breaks; nominal expenses associated with some schedule A expenses . . . ; some expenses with regard to Schedule B when the children come home and an increase in certain Schedule C expenses associated with food, etc. For the most part the children's expenses are covered by gifts from their grandmother ($14,000 each for 2015)[,] their [t]rust fund and their own earnings from part time jobs. The CIS submitted by the plaintiff contains numerous misrepresentations and is unreliable with regard to "need."
The [c]ourt has considered the following: Local residence; auto costs; travel expenses to/from college; clothing; lines [sic] and bedding; haircuts, telephone,
A-4873-15T1 9 sundries, toiletries and entertainment as part of college costs.
With respect to the second factor, the court noted defendant's income
"hovers around $90,000 but potentially could reach $120,000 or more. The
plaintiff earns approximately [$50,000 to $52,000] per year. The lifestyle at
the time of the divorce was not addressed by the parties." As to the third and
fourth factors, the court determined that it "cannot conclude that either party
has any undisclosed income or assets," and that "plaintiff is earning well above
the income imputed (or contemplated) as of the time of the divorce." The
court concluded factor five was "[n]ot applicable as all college costs are
covered by others." With respect to factors six and seven, the court noted the
parties did not raise any health issues; the children were twenty-one and
nineteen years old; the parents were sixty and fifty-eight years old; and
"plaintiff was not sure of the amount of [the children's] earning[s] but thinks
they earn less than $2,000.00 each." The court determined factor eight was no t
applicable, and as to factor nine, the court noted the children did not have any
debts or liabilities and any debts and liabilities of the parents were "not
addressed with specificity."
Regarding the final factor, the court found both parties were,
A-4873-15T1 10 veracity challenged. [Defendant] with his resume augmentation and a litany of excuses and [plaintiff] with her unverifiable assertions which are not borne out when challenged. [Plaintiff] continues to live in the marital home but does not contribute any money towards mortgage or expenses. She asserts that she pays for landscaping and had to fix a broken pipe!
Thereafter, the court noted "[i]t is not un-noticed that the children have
no relationship with their father, the cause of same is a subject in dispute."
The court again concluded that "all college related expenses are paid for
without contribution by either party" before reducing defendant's child support
obligations from $378 per week to $90 per week (covering both children).
The trial court properly analyzed the N.J.S.A. 2A:34-23(a) factors when
establishing defendant's modified child support obligation. Because defendant
does not direct our attention to any particular college cost that the trial court
improperly included and failed to consider in its modified child support award,
we find his first claim lacks merit.
Defendant also argues that the court erred in establishing April 29, 2016,
as the retroactive date of modification for child support. The trial court may
modify child support retroactively, but the effective date cannot precede the
date upon which the movant mailed to the other party notice of a motion for
modification. N.J.S.A. 2A:17-56.23a. If the motion is not filed within forty-
A-4873-15T1 11 five days after mailing the notice, "modification shall be permitted only from
the date the motion is filed with the court." Ibid.
Here, it is unclear from the record whether, and if so when, defendant
mailed notice of his motion to plaintiff. Thus, the earliest retroactive date the
trial court could have selected is "the date the motion [was] filed with the
court," ibid., which was July 28, 2015.
Although April 29, 2016, is statutorily compliant as it does not precede
the filing date of defendant's motion, the only apparent significance of April
29, 2016, is on that date, the court issued companion orders scheduling then-
ensuing discovery and plenary hearings. Neither the June 13, 2016 order nor
accompanying opinion explains why the court modified defendant's child
support retroactive to April 29, 2016, as opposed to any other date, e.g., July
28, 2015 (the date defendant filed his original motion for modification and the
date to which the court "reserve[d] the right" to make retroactive modification )
or October 16, 2015 (the date defendant filed his application for
reconsideration of the court's denial of modification and the retroactive date
requested by defendant).
Although the trial court was not required to set the retroactive date as the
motion's mailing or filing date, courts typically establish the retroactive date at
A-4873-15T1 12 or about the filing date. See, e.g., Ibrahim v. Aziz, 402 N.J. Super. 205, 214
(App. Div. 2008) ("As the trial court indicated . . . , the adjustment in the child
support payments will be retroactive to May 4, 2005, the date defendant filed
his motion for reconsideration of his support obligations."); Diehl v. Diehl,
389 N.J. Super. 443, 452 (App. Div. 2006) (deeming "proper in all respects"
the trial court's decision to fix "the retroactivity of the modification to the date
of plaintiff's first motion for modification"); Walles v. Walles, 295 N.J. Super.
498, 514 (App. Div. 1996) (reversing retroactive modification that preceded
the earliest permissible date and remanding "to reflect a retroactive
commencement date of" the day after the motion was filed); see also Leonardis
v. Woodruff, 354 N.J. Super. 135, 136, 138 (Ch. Div. 2001) (explaining a
court order in that case "required plaintiff to reimburse defendant . . . for child
support payments made" after the filing date of defendant's motion).
As noted, the court did not provide any explanation for establishing
April 29, 2016, as the retroactive date. Therefore, we reverse the June 13,
2016 order on the issue of the retroactive date for child support and remand for
the motion judge to make a specific finding explaining why April 29, 2016, or
a different date that it may choose within its discretion, is appropriate.
A-4873-15T1 13 B.
Next, defendant maintains the motion judge erred in denying his
application to modify his alimony obligations under the JOD as changed
financial circumstances warranted modification. We agree.
"Where the parties have agreed on the amount of support or alimony,"
modification of the agreement is appropriate "to the extent that chang ed
circumstances render the agreed terms no longer 'fair and equitable.'" Morris
v. Morris, 263 N.J. Super. 237, 241 (App. Div. 1993) (quoting Lepis v. Lepis,
83 N.J. 139, 148–149 (1980)). "[T]he moving party has the burden of
establishing the circumstances that warrant the change" in alimony. Zazzo v.
Zazzo, 245 N.J. Super. 124, 132 (App. Div. 1990).
In deciding a motion for modification, in addition to the factors provided
in Lepis, such as whether the supporting spouse is able to meet the original
alimony obligations, Lepis, 83 N.J. at 151-52, the court must consider the
statutory factors set forth in N.J.S.A. 2A:34-23(k) to (l), as applicable. Those
factors include: the reasons for any reduction in income; the parties' financial
circumstances; and whether any change in circumstances was voluntary,
involuntary, temporary, or permanent. See N.J.S.A. 2A:34-23(k) to (l).
A-4873-15T1 14 "In an application brought by a supporting spouse for a downward
modification in alimony . . . , the central issue is the supporting spouse's ability
to pay." Miller v. Miller, 160 N.J. 408, 420 (1999). Thus, if the payor is
incapable of complying with the terms of the JOD or supporting the payee at
the marital standard of living, modification may be appropriate. Conversely,
modification may also be appropriate when "there has been a significant
change for the better in the circumstances of the dependent spouse . . . ."
Stamberg v. Stamberg, 302 N.J. Super. 35, 42 (App. Div. 1997). In that
situation, because the payee can better support himself or herself, the need for
the payor to continue providing the original level of support diminishes.
Additionally, the movant can demonstrate "changed circumstances under Lepis
by citing a combination of changes on the part of both parties which together
have altered the status quo which existed at the time of the entry of the support
order under review." Ibid.
Another circumstance is whether the parties agreed that the payor would
pay "a fixed amount [of alimony], regardless of changes in circumstances."
Morris, 263 N.J. Super. at 242. Provisions that attempt to insulate alimony
agreements from modification or that reject the Lepis standards altogether,
known as "anti-Lepis" provisions, see id. at 240-41, 245, are enforceable
A-4873-15T1 15 "irrespective of the need-based guidelines of Lepis" when their enforcement is
"not unwarranted under the circumstances . . . ." Id. at 245–46. Whether a
clause is an anti-Lepis provision depends on the parties' common intent. See
Quinn, 225 N.J. at 45 ("A settlement agreement is governed by basic contract
principles.").
Although in uncontested divorces where the parties agree to a fixed
amount of alimony, the judge issuing the JOD need not make specific findings
as to the marital standard of living, Weishaus v. Weishaus, 180 N.J. 131, 144
(2004), it becomes incumbent upon the motion judge deciding a motion for
modification to make those findings. Glass v. Glass, 366 N.J. Super. 357, 371
(App. Div. 2004) ("where the marital standard has not been established, a
judge addressing a modification application must make such determination");
see Crews v. Crews, 164 N.J. 11, 16 (2000) ("The importance of establishing
the standard of living experienced during the marriage cannot be overstated. It
serves as the touchstone for the initial alimony award and for adjudicating later
motions for modification of the alimony award when 'changed circumstances'
are asserted.").
Here, the JOD was uncontested and, as amended, incorporated the
parties' settlement agreement, which awarded plaintiff $50,000 per year in
A-4873-15T1 16 permanent alimony based on plaintiff's imputed income of $40,000 and
defendant's salary of $190,000. Defendant maintains, and the motion judge
found, that since the time of the JOD, defendant's former businesses ceased
operations. Further, his new job paid a base salary of $50,000, with a five
percent commission on sales, which defendant testified could yield a total
salary of approximately $90,000.
Despite these facts, the motion judge determined defendant failed to
satisfy his burden of showing a substantial change in circumstances. The court
found the $190,000 salary figure from the JOD "had no basis in reality
compared to [defendant's] actual tax returns," based on Dr. Stein's testimony
regarding defendant's 2011, 2012, and 2013 returns, which indicated
defendant's average adjusted gross income (AGI) for those years was
approximately $98,100.2 The court found defendant's potential earnings of
$90,000 to be similar such that modification was inappropriate.
2 The judge's factual findings as to defendant's income are not based on substantial evidence in the record. The opinion accompanying the court's June 13, 2016 order states that "Dr. Stein reviewed the income tax returns for the years 2011, 2012 and 2013 . . . and found that the annual reported income . . . averaged approximately $93,000.00 - $94,000.00 during that time period." However, Dr. Stein actually testified that defendant's annual AGI, as opposed to income, as reported in his tax returns was $133,812 in 2011, $94,367 in 2012, and $66,130 in 2013, which averages approximately $98,100.
A-4873-15T1 17 Under these circumstances, we conclude the reduction in defendant's
stipulated income of $190,000 to his approximated $90,000 income constitutes
a substantial change in circumstances and the trial court abused its discretion
in disregarding the JOD's $190,000 salary figure.
First, the JOD clearly shows the parties agreed that defendant's salary
was $190,000, at least for purposes of calculating support. Not only did this
dollar figure have a "basis in reality," but it has a basis in the record. At the
June 2, 2016 plenary hearing, the court inquired of plaintiff, "[w]ould you
agree that . . . your lifestyle was equivalent to somebody who was earning
$190,000?" Plaintiff testified, "[a]t the time[,] our lifestyle? Yes."
Thereafter, the judge said, "I'm just trying to understand how we go from
$90,000 and change in income," seemingly referring to Dr. Stein's testimony,
"up to $190,000 as represented here." Plaintiff responded, "[i]s that gross
income, sir, or adjusted gross income? I don't know what [defendant] took off
in terms of expenses and other things on the taxes." The judge then asked,
"[s]o are you telling me that there's approximately $100,000 in expenses that
[defendant] ran through his business that were actually personal expenses," to
which plaintiff responded, "I don't know."
A-4873-15T1 18 Paragraph nine of the second amended JOD answers the question of
whether the $190,000 salary figure represented gross income or AGI: "The
child support calculation is based upon imputed income of $40,000.00 to
[p]laintiff and the gross income of [d]efendant of $190,000.00." Thus, the
motion judge's decision to disregard the JOD's $190,000 gross income figure
because it differed from defendant's AGI was erroneous.
Similarly, in finding defendant's "present income and his average income
from the time of divorce were similar," the judge equated defendant's average
annual AGI for 2011 through 2013 with defendant's anticipated gross income
of $90,000 in 2016. That fact finding was not supported by the record
because, assuming defendant paid his $50,000 alimony obligation, his AGI for
2016 would have decreased to $40,000 based solely on that deduction.
Because the divorce was uncontested and the parties agreed to a fixed
amount of alimony, the judge issuing the JOD was not required to make a
specific finding as to the marital lifestyle, Weishaus, 180 N.J. at 144, and the
JOD does not contain any such findings. However, upon a change in
circumstances, which existed here, it became incumbent upon the motion judge
deciding defendant's motion for modification to make those findings. See
Glass, 366 N.J. Super. at 371. While the June 13, 2016 opinion specifically
A-4873-15T1 19 notes that "[t]he lifestyle at the time of the divorce was not addressed by the
parties," and despite plaintiff's testimony at the June 2, 2016 plenary hearing,
the opinion does not make any marital lifestyle findings, the "touchstone"
necessary for a proper adjudication. See Crews, 164 N.J. at 16. These
findings are critical here because, based on defendant's $90,000 anticipated
income in 2016, he would be paying approximately 56% of his income toward
alimony alone. As we have stated, alimony awards must be "fair and
equitable" to receive continued enforcement. See Morris, 263 N.J. Super. at
241 (quoting Lepis, 83 N.J. at 148–149). On remand, the court should make
marital lifestyle findings in deciding the motion.
In addition, to the extent the court barred modification based on the JOD
provision that prohibits reduction in alimony while plaintiff resides at the
former marital home, the court failed to make specific findings of the parties'
intent in incorporating that provision into the JOD. The provision at issue is
located in the penultimate paragraph of the JOD. That paragraph addresses the
disposition of the former marital home and contains language expressing the
parties' "belie[f]" that the home, at the time of the JOD, was "in the foreclosure
process." Five years have passed and the court found plaintiff still resides in
the former marital home. In our view, the court would need to make a specific
A-4873-15T1 20 finding, based on competent evidence, that the parties intended for the
provision to be an anti-Lepis provision or to apply in perpetuity for that
provision to overcome the clause in paragraph three, which permits either
party to "file an application for modification of alimony based on changed
circumstances in accordance with the guidelines set forth in [Lepis] and its
progeny."
In sum, we reverse the June 13, 2016 order to the extent it denied
modification of alimony. We remand on that issue for the court to make
specific findings as to the parties' marital standard of living and the parties'
intent in incorporating the provision prohibiting reduction in alimony while
plaintiff resides at the former marital home in light of the provision
incorporating Lepis in paragraph three of the JOD.
III.
Defendant argues the restraints imposed in the JOD should have been
dissolved pursuant to Carfagno v. Carfagno, 288 N.J. Super. 424 (App. Div.
1995) or, alternatively, Rule 4:50-1. We disagree.
A-4873-15T1 21 Defendant's reliance on Carfagno, though understandable, 3 is misplaced
as that case governs dissolution of final restraining orders entered pursuant to
the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25–17 to –35.
See Carfagno, 288 N.J. Super. at 430. However, the restraints in this case
were not entered pursuant to the PDVA. Rather, the court entered an
interlocutory restraining order pursuant to Rule 4:52-2 that was voluntarily
memorialized in the parties' amended dual final JOD. Accordingly, Carfagno
is inapposite to the facts of this case.
Nonetheless, defendant also argues the restraints should be dissolved
under Rule 4:50–1 because "it is no longer equitable" to restrain him from
contacting his children. This claim implicates Rule 4:50–1(e), which confers
discretion upon the court to "relieve a party . . . from a final judgment or
order" if the court finds "it is no longer equitable that the judgment or order
should have a prospective application . . . ." In addition, though defendant
does not state explicitly that another subsection of the Rule entitles him to
relief, liberally construing his pro se brief, see Estelle v. Gamble, 429 U.S. 97,
106 (1976); Rubin v. Rubin, 188 N.J. Super. 155, 159 (App. Div. 1982),
3 At the April 14, 2016 hearing, the second motion judge incorrectly advised defendant, "you have to go through a Carfagno application if you want to have communication concerning your children."
A-4873-15T1 22 defendant seems to invoke Rule 4:50–1(f), which permits relief for "any other
reason justifying relief from the operation of the judgment or order."
The standard governing Rule 4:50–1(e) requires the moving party to
prove "events have occurred subsequent to the entry of a judgment that, absent
the relief requested, will result in 'extreme' and 'unexpected' hardship." Hous.
Auth. of Morristown v. Little, 135 N.J. 274, 285 (1994) (quoting Mayberry v.
Maroney, 558 F.2d 1159, 1163 (3d Cir. 1977)). "That burden is imposed in
order to overcome the courts' interests in orderly procedures and the fina lity of
judgments." Id. at 286. Similarly, given "the importance that we attach to the
finality of judgments," to obtain relief under Rule 4:50–1(f) the movant must
prove "truly exceptional circumstances are present." Ibid. (quoting Baumann
v. Marinaro, 95 N.J. 380, 395 (1984)). The trial court's ruling under Rule
4:50–1 is entitled to "substantial deference, and should not be reversed unless
it results in a clear abuse of discretion." US Bank Nat'l Ass'n v. Guillaume,
209 N.J. 449, 467 (2012).
Defendant's assertion that the restraints have "done a great deal of
damage" to him and his relationships with his children "for no bona fide
reason" does not establish that "unexpected" hardship will result from
continued restraint, see Little, 135 N.J. at 285, or that "truly exceptional
A-4873-15T1 23 circumstances" warrant relief, see Guillaume, 209 N.J. at 467. The reason the
restraints have had continuing application is that they were incorporated into
the final judgment of divorce by unopposed amendments. As amended, the
JOD unequivocally provides that the incorporated restraints "shall remain in
full force [and] effect . . . and shall be complied with by the parties in all
respects," except for certain provisions deemed "moot and therefore vacated."
Defendant also alleges his children's certifications, which plaintiff
submitted in opposition to the motion, and in which the children maintained
they did not want the restraints vacated, constituted inadmissible hearsay and
that the trial court erred in relying on those certifications in denying
dissolution of the restraints. However, even if we were to assume the
certifications were inadmissible hearsay, defendant's argument ignores the fact
that he bore the initial burden of proving dissolution was warranted based on
extreme and unexpected hardship under Rule 4:50–1(e), see Little 135 N.J. at
285, or "truly exceptional circumstances" under Rule 4:50–1(f), see Guillaume
209 N.J. at 467.
Here, the court considered defendant's hearsay certifications provided by
his friends and acquaintances, which defendant referred to as character
references, but the court found defendant's "character is not an issue this case."
A-4873-15T1 24 Instead, the court determined the issue was whether defendant had shown "a
change in circumstances which would change" the children's and plaintiff's
desire to remain "in protected status." After considering defendant's
arguments for dissolution of the restraints and plaintiff's opposition, and the
children's certifications, the court determined there was not a significant
change in circumstances since the JOD was entered.
The original circumstances giving rise to the interlocutory restraints
involved defendant's unsettling text messages to the children sent during the
underlying divorce proceedings. The children did not respond to the messages,
but showed them to plaintiff, and the incident resulted in a police investigation
and psychological evaluations. In the rider to the original order to show cause,
the court "exercis[ed] its equitable powers in light of the submissions made"
regarding those events and restrained defendant from contacting plaintiff or the
children until further court order. The parties then memorialized those
restraints in their dual final JOD, as amended. After reviewing all the
submissions, we conclude the court's determination that defendant failed to
A-4873-15T1 25 make "a showing under Rule 4:50-1 warranting" dissolution of the restraints
was not an abuse of discretion.4
B.
Defendant also maintains the trial court erred in denying his application
to be appointed guardian ad litem for his children. We disagree.
A guardian ad litem's function is to protect the interests of a minor or
allegedly incompetent adult in a particular litigation. S.T. v. 1515 Broad
Street, LLC, 455 N.J. Super. 538, 553 (App. Div. 2018) (explaining a guardian
ad litem's function "is merely 'to insure the protection of the rights and
interests of a litigant who is apparently incompetent to prosecute or defend the
lawsuit'" (quoting In re S.W., 158 N.J. Super. 22, 25-26 (App. Div. 1978)));
Julius v. Julius, 320 N.J. Super. 297, 309 (App. Div. 1999) (distinguishing a
guardian ad litem from a guardian of person or property). The trial court's
4 Further, Rule 4:50–1 motions seeking relief under subsections (e) and (f) must "be made within a reasonable time . . . ." R. 4:50–2. "What constitutes a reasonable time is . . . dependent on the totality of the circumstances." Pressler & Verniero, Current N.J. Court Rules, cmt. 3 on R. 4:50–2 (2019). Defendant filed his motion in December 2016, more than three years after the JOD's second amendment. Because we conclude defendant did not satisfy Rule 4:50–1, we need not address whether he made his application within a reasonable time of the JOD's September 2013 amendment.
A-4873-15T1 26 ruling on an application to appoint a guardian ad litem is entitled to deference
absent an abuse of discretion. J.B. v. W.B., 215 N.J. 305, 333 (2013).
At the time defendant sought to be appointed guardian ad litem, his
children were nineteen and twenty-one years old and were successfully
attending college. Defendant did not allege either child was incompetent or
had any psychological or physical infirmity requiring the appointment of a
guardian ad litem. The court correctly denied defendant's application.
C.
Defendant claims that because plaintiff has "refused" to conduct the coin
toss to allocate "disputed" personalty, he is entitled to compel her performance
of the agreement. He also maintains the judge erred in applying "some
operation of laches" to his claim. Again, we disagree.
"[T]he Superior Court has power to direct the specific performance of
the terms of husband-wife support agreements to the extent that they are just
and equitable." Schlemm v. Schlemm, 31 N.J. 557, 581–82 (1960). Generally,
"[t]his discretionary power is not exercised . . . in favor of a [party] unless it is
evident that such party has been ready, desirous, prompt and eager to fulfill
and perform his or her obligations under the terms of the contract." Mayo v.
Borovsky, 135 N.J. Eq. 447, 447–48 (Ch. 1944). We will not disturb the trial
A-4873-15T1 27 court's decision to compel or deny specific performance absent an abuse of
discretion. Weisbrod v. Lutz, 190 N.J. Super. 181, 186 (App. Div. 1983).
As to the JOD's coin-flip provision for allocating the parties' personalty,
using the second amended September 2013 JOD as the reference point, by
mid-October 2013 the list should have been compiled. The trial judge found:
This [was] 2013. We are now in 2017. There is a previous [o]rder of the [c]ourt [that] says comply, do your inventory, get your stuff out. [Defendant] was over there. I have no idea what's there that remains. But it's all attached as Exhibit L by [defendant] with the history of what went on here.
I do not intend to order anything other than which had previously been ordered. Those [o]rders of the [c]ourt remain in full force and effect until [they are] modified by another [o]rder . . . . [It was] 2013. [Defendant] had forty-five days to file an appeal from the time of the [j]udgment. That's denied.
As an initial observation, defendant failed to include the exhibit
referenced by the motion judge in the record on appeal and has not otherwise
established that he timely completed the list. Accordingly, without any
support in the record that defendant complied with his obligations under the
JOD and served a timely list of the personalty upon plaintiff's counsel, we
discern no abuse of discretion by the trial court in not compelling the coin toss
at this late date.
A-4873-15T1 28 Further, the trial court did not abuse its discretion in considering the
untimeliness of defendant's application as grounds for denying specific
performance. Defendant was required to provide the list to plaintiff's counsel
in 2013, and if defendant was unable or prevented from inventorying the
former marital home, he should have sought relief at that time. Instead,
defendant filed his application on December 9, 2016, more than three years
later. Three years of delay does not demonstrate a "prompt and eager" desire
to fulfill contractual obligations. See Mayo, 135 N.J. Eq. at 447–48.
D.
Finally, defendant contends the court erred in denying his motion to
compel plaintiff to execute certain legal documents necessary for defendant to
reduce his $2,000,000 life insurance policy to the minimum $600,000 required
under the JOD. We disagree.
The relevant JOD provision defendant seeks to enforce provides that he
must "maintain at least $600,000.00 of life insurance to secure his alimony and
child support obligations which will be at his expense. . . . Plaintiff shall
cooperate in respect of executing an[y] paperwork necessary to effectuate this
provision." The court found defendant failed to produce adequate proofs to
support his claim that he was a named insured on a $2,000,000 life insurance
A-4873-15T1 29 policy. While defendant's appendix includes an affidavit of insurance
coverage that was filed with the Family Part on September 9, 2011, thus pre-
dating the JODs, it does not appear that defendant provided the court with this
affidavit or any current proof of an insurance policy in connection with his
motion. Instead, defendant faxed an uncertified letter to the judge nine days
before the hearing. At best, the letter establishes secondary proof of insurance.
Defendant may seek relief in the trial court on remand once he obtains and
furnishes to the court competent proof of the existence of such a policy.
To the extent not addressed, defendant's remaining arguments lack
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, reversed in part, and remanded. We do not retain
jurisdiction.
A-4873-15T1 30