K.L.B. VS. R.B. (FM-10-0395-15, HUNTERDON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: December 18, 2018
• Docket: A-0810-17T2
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0810-17T2

K.L.B.,

Plaintiff-Respondent,

v.

R.B.,

Defendant-Appellant.

Argued September 20, 2018 – Decided December 18, 2018

Before Judges Alvarez and Nugent.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-0395-15.

Eric S. Solotoff argued the cause for appellant (Fox Rothschild LLP, attorneys; Eric S. Solotoff, of counsel and on the briefs; Eliana T. Baer, on the briefs).

Georgia M. Fraser argued the cause for respondent (Fraser Family Law Office, LLC, attorneys; Georgia M. Fraser, on the brief).

PER CURIAM Defendant R.B. appeals sections of two family court orders: the first

issued August 8, 2017. The second, entered September 29, 2017, denied

defendant reconsideration of the earlier order and denied him additional relief

he sought in the motion. We limit the discussion in this decision to the

reconsideration order, as it is the only one for which the appeal was properly

taken. See R. 2:4-1. We do not agree that the reconsideration decision was an

abuse of discretion. Nor do we conclude the additional relief defendant

requested should have been granted. Thus, we affirm.

Plaintiff K.L.B. and defendant divorced on October 4, 2016. They

incorporated the terms of a handwritten matrimonial settlement agreement

(MSA) into the divorce judgment. The agreement allocated their children's

college tuition and related expenses forty percent to plaintiff and sixty percent

to defendant. The MSA acknowledged that the parties' son, who was attending

college, might require a fifth year of schooling to complete his education. The

parties did not set an annual cap on the total number for which they would be

responsible. The parties' daughter was then still in high school. The parents

agreed to the same allocation for her college education—forty percent to

plaintiff and sixty percent to defendant—however, they placed an annual cap of

$40,000 on the obligation. When the parties entered into the MSA, defendant's

A-0810-17T2 2 relationship with his children was already significantly strained. It has only

worsened since that time.

The judge who decided the matter found that the parties exchanged

numerous emails with regard to the children's college decision-making process

and ultimate choices. These included many unanswered emails defendant sent

to his daughter regarding her decision.

The emails included in the record on appeal, among other things, indicate

that defendant attempted to make his financial contributions contingent upon

both children improving their relationship with him. The MSA was silent on the

subject.

Eventually, plaintiff filed a motion to enforce defendant's college

contribution commitment. He resisted, contending that since he was not

involved in the decision-making process, he was not liable. Defendant cross-

moved to emancipate the children, or in the alternative, for the court to schedule

a plenary hearing before deciding the amount he should contribute, if any. The

August 8, 2017 motion order granted plaintiff the relief that she sought,

including a counsel fee award of $2500, based in part on a finding that defendant

had acted in bad faith.

A-0810-17T2 3 Defendant then filed an unsuccessful motion for reconsideration. The

judge allowed plaintiff an additional $3037.50 by way of counsel fees.

Defendant's motion included a request for reunification counseling, which was

denied. The judge further ordered that if defendant failed to make timely

payments, upon plaintiff's filing of a certification to that effect, a warrant would

issue for his arrest. See R. 5:3-7(b).

Defendant raises eight points of error on appeal:

POINT I THE TRIAL COURT'S HOLDING COMPELLING [DEFENDANT] TO CONTRIBUTE SIXTY- PERCENT (60%) OF [THEIR DAUGHTER'S] COLLEGE COSTS AND EXPENSES DESPITE [PLAINTIFF'S] FAILURE TO FULFILL HER OBLIGATION TO KEEP HIM "SIGNIFICANTLY INVOLVED" IN THE COLLEGE SELECTION AND ENROLLMENT PROCESS WAS AN ABUSE OF DISCRETION AND AGAINST THE WEIGHT OF THE EVIDENCE.

POINT II THE TRIAL COURT ERRED IN ITS HOLDING TO COMPEL [DEFENDANT] TO CONTRIBUTE SIXTY-PERCENT (60%) OF BRANDON'S COLLEGE COSTS AT NEW YORK UNIVERSITY AFTER [THEIR SON'S] VOLUNTARY REJECTION OF [DEFENDANT'S] INVOLVEMENT IN HIS DECISION TO ALTER CAREER PATHS AND TRANSFER SCHOOLS.

A-0810-17T2 4 POINT III THE TRIAL COURT'S REFUSAL TO ORDER REUNIFICATION THERAPY WAS AN ABUSE OF DISCRETION.

POINT IV THE TRIAL COURT'S FAILURE TO EMANCIPATE THE CHILDREN, WHO HAVE VOLUNTARILY REMOVED [DEFENDANT] FROM THEIR SPHERE OF PARENTAL INFLUENCE WITHOUT CAUSE, WAS AN ABUSE OF DISCRETION AND AGAINST THE WEIGHT OF THE EVIDENCE.

POINT V THE TRIAL COURT'S FAILURE TO CONDUCT A PLENARY HEARING AND RELIANCE ON NOTHING MORE THAN COMPETING CERTIFICATIONS AND INADMISSIBLE, UNCERTIFIED HEARSAY DOCUMENTATION ANNEXED THERETO IN RENDERING ITS DETERMINATION WAS AN ABUSE OF DISCRETION AND AGAINST THE WEIGHT OF THE EVIDENCE.

POINT VI THE TR[IA]L COURT'S "AUTOMATIC BENCH WARRANT" PROVISION IN THE SEPTEMBER 29, 2017 ORDER SHOULD BE VACATED AS VIOLATIVE OF DEFENDANT'S RIGHT TO DUE PROCESS.

POINT VII THE TRIAL COURT'S AWARD OF COUNSEL FEES ABSENT AN EXAMINATION OF ALL FACTORS UNDER RULE 5:5-3(C) AND UPON ITS ERRONEOUS FINDING OF [DEFENDANT'S] BAD FAITH WAS AN ABUSE OF DISCRETION.

A-0810-17T2 5 POINT VIII IN THE EVENT THAT THIS MATTER IS NOT REVERSED ON APPEAL, THE TRIAL COURT'S DECISION MERITS A REMAND TO A NEW TRIAL JUDGE.

I.

We address the issues raised by defendant regarding the court's

enforcement of the MSA within the context of the reconsideration application.

Rule 4:49-2 governs motions for reconsideration:

Except as otherwise provided by R. 1:13-1 (clerical errors) a motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it. The motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred, and shall have annexed thereto a copy of the judgment or order sought to be reconsidered and a copy of the court's corresponding written opinion, if any.

Reconsideration is "a matter within the sound discretion of the [c]ourt, to be

exercised in the interest of justice." D'Atria v. D'Atria, 242 N.J. Super. 392, 401

(Ch. Div. 1990).

The denial of a motion for reconsideration is reviewed for abuse of

discretion. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). "An

abuse of discretion 'arises when a decision is made without a rational

A-0810-17T2 6 explanation, inexplicably departed from established policies, or rested on an

impermissible basis.'" Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App.

Div. 2012) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).

Reconsideration is not appropriate merely because a litigant is unhappy

with a decision or wants to reargue a motion. Palombi v. Palombi, 414 N.J.

Super. 274, 288 (App. Div. 2010). Rather, reconsideration should only be used

in those cases that fit into a narrow category where "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." D'Atria, 242 N.J. Super. at 401.

"[M]otion practice must come to an end at some point, and if repetitive bites at

the apple are allowed, the core will swiftly sour." Ibid.

New Jersey has long supported a policy favoring the use of consensual

agreements to resolve marital controversies, treating them as binding contracts

between the parties that should be enforced. Pacifico v. Pacifico, 190 N.J. 258,

265 (2007); Konzelman v. Konzelman, 158 N.J. 185, 193 (1999); Petersen v.

Petersen, 85 N.J. 638, 642 (1981); Schlemm v. Schlemm, 31 N.J. 557 (1960).

"[M]atrimonial agreements between spouses relating to . . . support, which are

A-0810-17T2 7 fair and just, fall within the category of contracts enforceable in equity."

Petersen, 85 N.J. at 642 (citation omitted).

"It is not the function of the court to rewrite or revise an agreement when

the intent of the parties is clear." Quinn v. Quinn, 225 N.J. 34, 45 (2016)

(citation omitted). Moreover, "[w]hen a court alters an agreement in the absence

of a compelling reason, the court eviscerates the certitude the parties thought

they had secured, and in the long run undermines this Court's preference for

settlement of all, including marital, disputes." Id. at 55. "[T]he law grants

particular leniency to agreements made in the domestic arena, and likewise

allows judges greater discretion when interpreting such agreements." Guglielmo

v. Guglielmo, 253 N.J. Super. 531, 542 (App. Div. 1992).

The Family Part has substantial discretion in compelling a parent to

contribute to their child's college costs. Avelino-Catabran v. Catabran, 445 N.J.

Super. 574, 588 (App. Div. 2016) (citing Gotlib v. Gotlib, 399 N.J. Super. 295,

308 (App. Div. 2008)) (" The Family Part's 'substantial discretion' in determining

child support applies equally to compelling a parent to contribute to their child's

college costs."). Such decisions, like decisions on reconsideration applications,

are also subject to appellate review under an abuse of discretion standard. Ibid.

A-0810-17T2 8 "When a party to a comprehensive negotiated [property settlement

agreement] seeks to modify any support obligation, that party must meet the

threshold standard of changed circumstances." J.B. v. W.B., 215 N.J. 305, 327

(2013) (emphasis added). "Changed circumstances include 'an increase in the

cost of living, an increase or decrease in the income of the supporting or

supported spouse, cohabitation of the dependent spouse, illness or disability

arising after the entry of the judgment, and changes in federal tax law.'" Quinn

v. Quinn, 225 N.J. 34, 49 (2016) (quoting J.B., 215 N.J. at 327).

With regard to the motion for reconsideration as to defendant's

contributions to the college tuition for the parties' daughter, the judge found

defendant's relationship to her was unchanged from the time the MSA was

entered and the child chose a school. The judge also concluded from the emails

that defendant was fully informed by plaintiff regarding the daughter's sea rch

process. Defendant sought to revisit the issue of college contribution because

of his poor relationship with his daughter and plaintiff's alleged failure to

communicate with him about the search. The judge's findings to the contrary—

which we review with particular deference given the decision was made by a

family court judge—were supported by more than adequate, substantial, and

credible evidence. See Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).

A-0810-17T2 9 On reconsideration, the judge was essentially only asked to change his

opinion. His initial decision was based on facts in the record, rationally

explained, and was consistent with established policies. See Milne, 428 N.J.

Super. at 197. There was no change in the relationship or in the circumstances

overall from the time the MSA was entered into. Defendant agreed to the

obligation that plaintiff sought to enforce. The judge's decision did not overlook

any law or evidence, and was not an abuse of discretion. See D'Atria, 242 N.J.

Super. at 401.

With regard to the parties' son, the MSA did not impose a cap, and the

possibility that the child would be attending college for a fifth year was

referenced in the documents. Defendant included the issue on the application

for reconsideration. The judge declined to consider it because defendant raised

it for the first time in his motion for reconsideration. Even if the judge had

considered the question, however, the binding MSA controlled, defendant did

not proffer any evidence that would warrant setting it aside, and defendant was

thus obligated. Defendant's relationship to his son was also unchanged. The

judge's decision was therefore not an abuse of discretion.

A-0810-17T2 10 II.

Defendant's separate application for reunification therapy was also raised

for the first time when the reconsideration motion was filed. Given the age of

the children, the request is simply unrealistic and Black v. Black, 436 N.J. Super.

130 (Ch. Div. 2013), is not binding upon us.

The father's relationship with his children had deteriorated by the time the

parents divorced. The children are now college students. It seems quite clear

that the court's decision was a reasonable and pragmatic exercise of discretion,

which did not deny defendant justice. See N.J. Div. of Youth & Family Servs.

v. E.P., 196 N.J. 88, 104 (2008) (citing N.J. Div. of Youth & Family Servs. v.

G.L., 191 N.J. 596, 605 (2007) ("Only when the trial court's conclusions are so

'clearly mistaken' or 'wide of the mark' should an appellate court interve ne and

make its own findings to ensure that there is not a denial of justice" ). We see

no basis for us to intervene. Ibid.

III.

Defendant's application for the emancipation of his children and

termination of his support obligations are so lacking in merit as to not warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E). These children are full-time

college students financially dependent on their parents. In the MSA, defendant

A-0810-17T2 11 agreed to contribute to their education beyond age eighteen even though at the

time he had a poor relationship with them. The children are entitled to their

parents' contributions.

IV.

Rule 5:3-7(b) provides that "[o]n finding that a party has violated an

alimony, financial maintenance, or child support order the court may, in addition

to remedies provided by R. 1:10-3, grant any of the following remedies, either

singly or in combination: . . . (7) issuance of a warrant to be executed upon the

further violation of the judgment or order." Defendant's noncompliance with his

financial obligations was the reason for the post-judgment motion practice.

Therefore, the court was justified in implementing the relief authorized by the

Rule. The judge did not abuse his discretion, either in terms of the factual

conclusion that the relief was necessary or in the interpretation of the relevant

law. See D'Atria, 242 N.J. Super. at 401-02.

Awards of counsel fees and costs rest within the discretion of the court

and will only be disturbed in clear cases. Yueh v. Yueh, 329 N.J. Super. 447,

466 (App. Div. 2000); Rendine v. Pantzer, 141 N.J. 292, 317 (1995).

Specifically, "the award of counsel fees and costs in a matrimonial action rests

A-0810-17T2 12 in the discretion of the court." Williams v. Williams, 59 N.J. 229, 233 (1971).

The ability to award counsel fees in actions for enforcement of interspousal

agreements is carved out in Rules 4:42-9(a)(1) and 5:3-5(c). Rule 5:3-5(c)

provides, in relevant part:

Subject to the provisions of R. 4:42-9(b), (c), and (d), the court in its discretion may make an allowance, both pendente lite and on final determination, to be paid by any party to the action, including, if deemed to be just, any party successful in the action, on any claim for . . . enforcement of agreements between spouses, . . . and claims relating to family type matters. All applications or motions seeking an award of attorney fees shall include an affidavit of services at the time of initial filing, as required by paragraph (d) of this rule.

When courts determine the amount of an award of counsel fees, Rule 5:3-

5(c) sets forth the factors to be considered, including:

(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.

In deciding whether to award counsel fees, the court should also consider

"whether the party requesting the fees is in financial need; whether the party

A-0810-17T2 13 against whom the fees are sought has the ability to pay; the good or bad faith of

either party . . .; the nature and extent of the services rendered; and the

reasonableness of the fees." Mani v. Mani, 183 N.J. 70, 94-95 (2005).

Defendant, other than his disagreement with the judge's fact-finding and

conclusions of law, has no basis for setting aside the initial modest counsel fee

award. The award of an additional $3037.50 counsel fee on the reconsideration

application is also reasonable in light of the court's analysis of the equities of

the situation and the amounts requested. Although the judge's discussion was

limited, his decision was clearly premised on the relevant factors.

Defendant promptly repudiated the agreement he entered into at the time

of the divorce. The judge was concerned defendant was holding the children

economically hostage to his expectations regarding his relationship with them.

The finding of bad faith is supported by the record.

VI.

Defendant's position that a plenary hearing should have been ordered lacks

merit. A plenary hearing is necessary to resolve a genuine issue of a material

fact, as "trial judges cannot resolve material factual disputes upon conflicting

affidavits and certifications." Harrington v. Harrington, 281 N.J. Super. 39, 47

(App. Div. 1995). However, "not every factual dispute that arises in the context

A-0810-17T2 14 of matrimonial proceedings triggers the need for a plenary hearing." Ibid. The

Court has held:

Although equity demands that spouses be afforded an opportunity to seek modification, the opportunity need not include a hearing when the material facts are not in genuine dispute. We therefore hold that a party must clearly demonstrate the existence of a genuine issue as to a material fact before a hearing is necessary. Without such a standard, courts would be obligated to hold hearings on every modification application.

[Lepis v. Lepis, 83 N.J. 139, 159 (1980) (citations omitted).]

The Lepis court explained that, "[i]n determining whether a material fact is in

dispute, a court should rely on the supporting documents and affidavits of the

parties." Ibid.

Defendant did not demonstrate material factual disputes. The lack of

materiality of the allegedly disputed facts make a hearing unnecessary. Given

our decision on this appeal as set forth above, no remand is necessary.

Affirmed.

A-0810-17T2 15