NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1751-24
JUAN G. GHERARDY,
Plaintiff-Respondent,
v.
CATHERINE GREER,
Defendant-Appellant. _________________________
Submitted November 13, 2025 – Decided December 1, 2025
Before Judges Mayer and Jacobs.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1217-14.
Frasilie Stinvil (Stinvil Law PLLC), attorney for appellant.
Jardim, Meisner, Salmon, Sprague & Susser, PC, attorneys for respondent (Jessica R. Sprague, on the brief).
PER CURIAM Defendant Catherine Greer appeals from a January 3, 2025 order
permitting plaintiff Juan G. Gherardy to file an application for an award of
counsel fees and costs. Additionally, defendant appeals from a February 12,
2025 order awarding $6,532.50 in counsel fees and costs to plaintiff's counsel.
For the following reasons, we vacate and remand the matter to the Family Part
judge.
We limit our recitation of the facts to the issues relevant on appeal. The
parties, who divorced in 2008, share custody of their son, Jakob. The divorce
incorporated the parties' written marital settlement agreement. At the time of
the divorce, Jakob lived with defendant in New Jersey. In 2023, Jakob went to
live with plaintiff in California.
As a result of Jakob relocating to California, plaintiff and defendant
attempted to negotiate a consent order modifying the parties' marital settlement
agreement regarding the change in custody and plaintiff's child support
obligation. During the negotiations, plaintiff continued to pay child support
pursuant to the marital settlement agreement. Initially, defendant reimbursed
plaintiff for child support payments made between February 16 and April 1,
2023 because Jakob no longer lived with her. After April 1, 2023, defendant
ceased returning child support payments to plaintiff.
A-1751-24 2 The parties were unable to negotiate a mutually acceptable consent order
modifying their marital settlement agreement. The proposed consent order
would have terminated plaintiff's child support obligation as of April 1, 2023
and directed defendant to return any payments she received after that date.
However, plaintiff objected to the consent order as drafted because it failed to
compel defendant's payment of child support. Through their respective
attorneys, the parties spent nearly a year attempting to finalize a consent order
modifying the marital settlement agreement. According to plaintiff, the
negotiations regarding the proposed consent order failed because defendant
declined to provide the financial information necessary to calculate her child
support obligation. The parties never signed a consent order modifying the ir
marital settlement agreement.
Nearly a year and a half after Jakob moved to California, plaintiff filed a
motion for the following relief: terminating his child support obligation;
reimbursing his child support overpayments; compelling defendant's payment of
child support to plaintiff; and awarding $4,830 in counsel fees and costs for the
motion. Defendant opposed the motion, arguing she complied with the statute
governing payment of child support because a child support obligation could be
A-1751-24 3 suspended or terminated only as of the date of the filing of a proper motion under
N.J.S.A. 2A:17-56.23a.
The Family Part judge granted plaintiff's motion in its entirety. She
concluded there was "absolutely . . . no reason for [defendant] to keep that
money" under the idiosyncratic facts in this case. The judge noted the draft
consent order recognized defendant was no longer entitled to plaintiff's payment
of child support after Jakob moved to California. Further, the judge explained
the proposed consent order reflected defendant's acknowledgement of her
obligation to return any child support payments made by plaintiff after April 1,
2023. Because defendant knew she was receiving child support to which she
was not entitled, the judge concluded it was "extremely unreasonable" for
defendant to have kept the child support payments for a child that did not reside
with her "for a significant amount of time." Regarding plaintiff's application for
counsel fees and costs, the judge directed plaintiff's counsel to submit an
updated certification of legal services.
Plaintiff's counsel provided an updated certification requesting $6,982.50
in attorney's fees and costs. Defendant objected to any award of counsel fees or
costs. She argued the delay in reimbursing plaintiff was the result of the failure
to reach a mutually agreed upon consent order, the lack of any order terminating
A-1751-24 4 plaintiff's child support payment obligation, and N.J.S.A. 2A:17-56.23a, which
precludes retroactive modification of child support.
In a February 12, 2025 order, the Family Part judge ordered defendant to
pay $6,532.50 to plaintiff's attorney. The judge attached a two-page statement
of reasons in support of the amount awarded. However, the judge's statement
of reasons omitted analysis of the fee award under Rule 5:3-5(c).
On appeal, defendant argues the Family Part judge erred "in finding bad
faith without applying the required factors under Rule 5:3-5(c) and New Jersey
case law." She further claims the judge "improperly equated a legal dispute over
retroactivity with litigation misconduct." Additionally, defendant asserts the fee
award was punitive.
Rule 4:42-9(a)(1) allows counsel fee awards in family actions. "[T]he
award of counsel fees and costs in matrimonial actions rests in the sound
discretion of the trial court." Bisbing v. Bisbing, 468 N.J. Super. 112, 121 (App.
Div. 2021) (citing Williams v. Williams, 59 N.J. 229, 233 (1971)). We will not
disturb a trial court's determination on counsel fees "absent a showing of 'an
abuse of discretion involving a clear error of judgment.'" Steele v. Steele, 467
N.J. Super. 414, 444 (App. Div. 2021) (quoting Tannen v. Tannen, 416 N.J.
Super. 248, 285 (App. Div. 2010)). "An abuse of discretion occurs when a trial
A-1751-24 5 court makes 'findings inconsistent with or unsupported by competent evidence,'
utilizes 'irrelevant or inappropriate factors,' or 'fail[s] to consider controlling
legal principles.'" Ibid. (alteration in original) (quoting Elrom v. Elrom, 439
N.J. Super. 424, 434 (App. Div. 2015)). "An abuse of discretion is also
demonstrated if the court fails to consider 'all relevant factors.'" Ibid. (quoting
Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005)). Where the case
law, statutes, and rules are followed, and the judge renders appropriate findings
of fact, a fee determination is entitled to deference. Yueh v. Yueh, 329 N.J.
Super. 447, 464-66 (App. Div. 2000); see also Pressler & Verniero, Current N.J.
Court Rules, cmt. 4.7 on R. 5:3-5 (2026).
"Rule 4:42-9 permits an award of fees in a family action. Such fees may
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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-1751-24
JUAN G. GHERARDY,
Plaintiff-Respondent,
v.
CATHERINE GREER,
Defendant-Appellant. _________________________
Submitted November 13, 2025 – Decided December 1, 2025
Before Judges Mayer and Jacobs.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1217-14.
Frasilie Stinvil (Stinvil Law PLLC), attorney for appellant.
Jardim, Meisner, Salmon, Sprague & Susser, PC, attorneys for respondent (Jessica R. Sprague, on the brief).
PER CURIAM Defendant Catherine Greer appeals from a January 3, 2025 order
permitting plaintiff Juan G. Gherardy to file an application for an award of
counsel fees and costs. Additionally, defendant appeals from a February 12,
2025 order awarding $6,532.50 in counsel fees and costs to plaintiff's counsel.
For the following reasons, we vacate and remand the matter to the Family Part
judge.
We limit our recitation of the facts to the issues relevant on appeal. The
parties, who divorced in 2008, share custody of their son, Jakob. The divorce
incorporated the parties' written marital settlement agreement. At the time of
the divorce, Jakob lived with defendant in New Jersey. In 2023, Jakob went to
live with plaintiff in California.
As a result of Jakob relocating to California, plaintiff and defendant
attempted to negotiate a consent order modifying the parties' marital settlement
agreement regarding the change in custody and plaintiff's child support
obligation. During the negotiations, plaintiff continued to pay child support
pursuant to the marital settlement agreement. Initially, defendant reimbursed
plaintiff for child support payments made between February 16 and April 1,
2023 because Jakob no longer lived with her. After April 1, 2023, defendant
ceased returning child support payments to plaintiff.
A-1751-24 2 The parties were unable to negotiate a mutually acceptable consent order
modifying their marital settlement agreement. The proposed consent order
would have terminated plaintiff's child support obligation as of April 1, 2023
and directed defendant to return any payments she received after that date.
However, plaintiff objected to the consent order as drafted because it failed to
compel defendant's payment of child support. Through their respective
attorneys, the parties spent nearly a year attempting to finalize a consent order
modifying the marital settlement agreement. According to plaintiff, the
negotiations regarding the proposed consent order failed because defendant
declined to provide the financial information necessary to calculate her child
support obligation. The parties never signed a consent order modifying the ir
marital settlement agreement.
Nearly a year and a half after Jakob moved to California, plaintiff filed a
motion for the following relief: terminating his child support obligation;
reimbursing his child support overpayments; compelling defendant's payment of
child support to plaintiff; and awarding $4,830 in counsel fees and costs for the
motion. Defendant opposed the motion, arguing she complied with the statute
governing payment of child support because a child support obligation could be
A-1751-24 3 suspended or terminated only as of the date of the filing of a proper motion under
N.J.S.A. 2A:17-56.23a.
The Family Part judge granted plaintiff's motion in its entirety. She
concluded there was "absolutely . . . no reason for [defendant] to keep that
money" under the idiosyncratic facts in this case. The judge noted the draft
consent order recognized defendant was no longer entitled to plaintiff's payment
of child support after Jakob moved to California. Further, the judge explained
the proposed consent order reflected defendant's acknowledgement of her
obligation to return any child support payments made by plaintiff after April 1,
2023. Because defendant knew she was receiving child support to which she
was not entitled, the judge concluded it was "extremely unreasonable" for
defendant to have kept the child support payments for a child that did not reside
with her "for a significant amount of time." Regarding plaintiff's application for
counsel fees and costs, the judge directed plaintiff's counsel to submit an
updated certification of legal services.
Plaintiff's counsel provided an updated certification requesting $6,982.50
in attorney's fees and costs. Defendant objected to any award of counsel fees or
costs. She argued the delay in reimbursing plaintiff was the result of the failure
to reach a mutually agreed upon consent order, the lack of any order terminating
A-1751-24 4 plaintiff's child support payment obligation, and N.J.S.A. 2A:17-56.23a, which
precludes retroactive modification of child support.
In a February 12, 2025 order, the Family Part judge ordered defendant to
pay $6,532.50 to plaintiff's attorney. The judge attached a two-page statement
of reasons in support of the amount awarded. However, the judge's statement
of reasons omitted analysis of the fee award under Rule 5:3-5(c).
On appeal, defendant argues the Family Part judge erred "in finding bad
faith without applying the required factors under Rule 5:3-5(c) and New Jersey
case law." She further claims the judge "improperly equated a legal dispute over
retroactivity with litigation misconduct." Additionally, defendant asserts the fee
award was punitive.
Rule 4:42-9(a)(1) allows counsel fee awards in family actions. "[T]he
award of counsel fees and costs in matrimonial actions rests in the sound
discretion of the trial court." Bisbing v. Bisbing, 468 N.J. Super. 112, 121 (App.
Div. 2021) (citing Williams v. Williams, 59 N.J. 229, 233 (1971)). We will not
disturb a trial court's determination on counsel fees "absent a showing of 'an
abuse of discretion involving a clear error of judgment.'" Steele v. Steele, 467
N.J. Super. 414, 444 (App. Div. 2021) (quoting Tannen v. Tannen, 416 N.J.
Super. 248, 285 (App. Div. 2010)). "An abuse of discretion occurs when a trial
A-1751-24 5 court makes 'findings inconsistent with or unsupported by competent evidence,'
utilizes 'irrelevant or inappropriate factors,' or 'fail[s] to consider controlling
legal principles.'" Ibid. (alteration in original) (quoting Elrom v. Elrom, 439
N.J. Super. 424, 434 (App. Div. 2015)). "An abuse of discretion is also
demonstrated if the court fails to consider 'all relevant factors.'" Ibid. (quoting
Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005)). Where the case
law, statutes, and rules are followed, and the judge renders appropriate findings
of fact, a fee determination is entitled to deference. Yueh v. Yueh, 329 N.J.
Super. 447, 464-66 (App. Div. 2000); see also Pressler & Verniero, Current N.J.
Court Rules, cmt. 4.7 on R. 5:3-5 (2026).
"Rule 4:42-9 permits an award of fees in a family action. Such fees may
be awarded based on a weighing of the factors set forth in Rule 5:3-5(c)."
Bisbing, 468 N.J. Super. at 121. "[T]he court shall determine the appropriate
[counsel fee] award . . . [after] consider[ing] the factors set forth in [Rule 5:3-
5(c)], the financial circumstances of the parties, and the good or bad faith of
either party." N.J.S.A. 2A:34-23. The judge must also consider the mandates
under Rule of Professional Conduct 1.5(a)(1)-(8) regarding the reasonableness
of any fee award. See Chestone v. Chestone, 322 N.J. Super. 250, 256 (App.
A-1751-24 6 Div. 1999) (noting counsel fee awards must address [] the factors enumerated
by Rules of Professional Conduct 1.5(a)).
Rule 5:3-5(c) sets forth the factors to be analyzed in deciding whether to
award attorney's fees. The factors require the judge to consider the following:
(1) the financial circumstances of the parties;
(2) the ability of the parties to pay their own fees or to contribute to the fees of the other party;
(3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial;
(4) the extent of the fees incurred by both parties;
(5) any fees previously awarded;
(6) the amount of fees previously paid to counsel by each party;
(7) the results obtained;
(8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and
(9) any other factor bearing on the fairness of an award.
[R. 5:3-5(c).]
Here, the judge's February 12, 2025 order and attached statement of
reasons omitted analysis of the Rule 5:3-5(c) factors. Thus, we are constrained
to remand to the Family Part to consider the factors under Rule 5:3-5(c) in
A-1751-24 7 determining whether plaintiff is entitled to an award of attorney's fees and costs.
We take no position on the outcome of the remand.
Vacated and remanded. We do not retain jurisdiction.
A-1751-24 8