SHIRL DAVID VS. ANTONIO J. WYNN

• Court: New Jersey Superior Court Appellate Division
• Decided: September 17, 2019
• Docket: A-4870-17T3
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4870-17T3

SHIRL DAVID,

Plaintiff-Appellant,

v.

ANTONIO J. WYNN,

Defendant-Respondent. _________________________

Argued September 11, 2019 – Decided September 17, 2019

Before Judges Haas and Mayer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2156-13.

Stilianos Michael Cambilis argued the cause for appellant (The Law Office of Rajeh A. Saadeh, LLC, attorneys; Rajeh A. Saadeh and Kelscey Ann Boyle, on the brief).

Respondent has not filed a brief.

PER CURIAM This post-judgment matrimonial matter returns to us after remand

proceedings directed by our previous opinion. David v. Wynn, No. A-2707-16

(App. Div. March 5, 2018). 1 In compliance with our remand order, the judge

rendered a lengthy order and statement of reasons on July 31, 2018, and detailed

the basis for his decision to take a measured, incremental approach to ensuring

that defendant met his financial obligations going forward.

Specifically, the judge: (1) granted plaintiff's motion to find defendant in

violation of litigant's rights in connection with the alimony and equitable

distribution provisions of the parties' Marital Settlement Agreement; (2) directed

defendant to pay plaintiff an additional $100 per week to address his alimony

arrears; (3) ordered defendant to pay plaintiff $5018.23, "representing

[p]laintiff's one-half share of the former marital home"; and (4) granted

plaintiff's request for counsel fees incurred in connection with two of her

previous enforcement motions.

The judge denied plaintiff's requests for the imposition of additional

sanctions against defendant, such as her demand that the court incarcerate

defendant until he made full payment of all of his financial obligations with

1 We assume familiarity with, and incorporate by reference, the underlying procedural history and facts contained in our prior opinion. Id. at 1-6. A-4870-17T3 2 interest. However, these denials were without prejudice, and preserved

plaintiff's ability to request the Family Part to take more stringent enforcement

measures in the event defendant later failed to abide by the order. The judge

also denied plaintiff's application for counsel fees in the appeal that led to the

remand under R. 2:11-4(c), and in other trial court proceedings involving the

parties.

On appeal, plaintiff argues that the trial judge should have: imposed

additional sanctions against defendant; ordered him to pay her additional monies

in connection with the former marital home; directed him to reimburse more of

her counsel fees; and required him to pay interest on all of his outstanding

financial obligations. Based on our review of the record and the applicable law,

we conclude that plaintiff's arguments are without sufficient merit to warrant

extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the

following brief comments.

Our standard of review is well settled. Rule 1:10-3 "provide[s] a

mechanism, coercive in nature, to afford relief to a litigant who has not received

what a Court Order or Judgment entitles that litigant to receive." D'Atria v.

A-4870-17T3 3 D'Atria, 242 N.J. Super. 392, 407 (Ch. Div. 1990). 2 "The particular manner in

which compliance may be sought is left to the court's sound discretion." Bd. of

Educ. of Middletown v. Middletown Twp. Educ. Ass'n, 352 N.J. Super. 501, 509

(Ch. Div. 2001). We will also not disturb a counsel fee award in a matrimonial

case under Rule 5:3-5(c) except "on the 'rarest occasion,' and then only because

of clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 317 (App.

Div. 2008) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).

We owe substantial deference to the Family Part's findings of fact because

of that court's special expertise in family matters. Cesare v. Cesare, 154 N.J.

394, 411-12 (1998). Thus, "[a] reviewing court should uphold the factual

findings undergirding the trial court's decision if they are supported by adequate,

substantial and credible evidence on the record." MacKinnon v. MacKinnon,

191 N.J. 240, 253-54 (2007) (alteration in original) (quoting N.J. Div. of Youth

& Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).

While we owe no special deference to the judge's legal conclusions,

Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995),

we "should not disturb the factual findings and legal conclusions of the trial judge unless . . . convinced that

2 The D'Atria opinion refers to Rule 1:10-5, but that rule has been amended and re-designated as Rule 1:10-3. Pressler & Verniero, Current N.J. Court Rules, note on R. 1:10-3 (2019). A-4870-17T3 4 they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice" or when we determine the court has palpably abused its discretion.

[Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010) (alteration in original) (quoting Cesare, 154 N.J. at 412).]

We will reverse the judge's decision "[o]nly when the trial court's

conclusions are so 'clearly mistaken' or 'wide of the mark' . . . to ensure that there

is not a denial of justice." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J.

88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J.

596, 605 (2007)).

Applying these principles, plaintiff's arguments concerning the July 31,

2018 remand order reveal nothing "so wide of the mark" that we could

reasonably conclude that a clear mistake was made by the judge. We discern no

basis for disturbing the judge's determination to begin the enforcement process

by requiring defendant to first pay plaintiff an additional $100 per week toward

his alimony arrearages, together with a specified sum in connection with the

parties' former home, while holding other, more stringent enforcement options

in abeyance for possible future use in the event defendant continued his

recalcitrance.

A-4870-17T3 5 Similarly, the judge did not mistakenly exercise his discretion in awarding

plaintiff some, but not all, of the counsel fees she sought. The judge

meticulously applied the factors under Rule 5:3-5(c), with the beneficial

perspective of having presided over the majority of the proceedings involving

the parties.

Finally, we reject plaintiff's request that we again remand the matter and

order the judge to provide additional findings concerning his determinations.

Contrary to plaintiff's contention, the judge's written order and statement of

reasons demonstrated that all of plaintiff's contentions were heard and

considered.

Affirmed.

A-4870-17T3 6