NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0027-20
SVETLANA SCHILLER,
Plaintiff-Respondent,
v.
CHRISTOPHER JAMES SCHILLER,
Defendant-Appellant. _______________________
Submitted December 14, 2021 – Decided October 26, 2022
Before Judges DeAlmeida and Smith.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1096-18.
Haber Silver Simpson & Russoniello, attorneys for appellant (Jani Wase Vinick, on the brief).
Respondent has not filed a brief.
The opinion of the court was delivered by
DeALMEIDA, J.A.D. Defendant Christopher James Schiller appeals from the July 24, 2020
order of the Family Part denying his motion for reconsideration of the financial
provisions of the parties' final judgment of divorce (JOD), to set aside their
settlement agreement, to vacate several orders implementing the JOD, and
denying his application for attorney's fees. We affirm in part and reverse in part.
I.
Christopher1 and plaintiff Svetlana Schiller were married in 2009. Their
two children were born during the marriage. In 2019, the trial court held a
twelve-day trial on the parties' cross-complaints for divorce. Christopher and
Svetlana disputed custody, parenting time, equitable distribution, alimony, child
support, and other matters.
Mid-trial, the parties' counsel placed on the record the terms of a
settlement of all financial issues other than attorney's fees and the obligation to
maintain life insurance. The parties did not resolve custody and parenting time.
The relevant terms of the agreement, as described on the record, are:
(1) Christopher will buy out Svetlana's interest in the marital home for
$69,471.75 pursuant to a separate written sales contract;
1 Because the parties share a surname, we refer to them by their first names. No disrespect is intended. A-0027-20 2 (2) Svetlana will vacate the marital home within thirty days after
signing the sales contract, but may remain in the home an additional thirty days
if she demonstrates she has been unable to find a new residence;
(3) Svetlana will turn the marital home over to Christopher "as is" and
represents the home is in the same condition it was in when Christopher moved
out in 2017, other than normal wear and tear;
(4) Until Svetlana vacates the marital home, Christopher will continue
to pay pendente lite expenses in accordance with a prior court order;
(5) Christopher will pay limited duration alimony to Svetlana of
$45,000 for the first two years and $35,000 for the second two years,
commencing when Svetlana vacates the marital home;
(6) After determining custody and parenting time, the trial court will
calculate the parties' child support obligations in accordance with the child
support guidelines, taking into account the cost of health insurance Christopher
pays for the children;
(7) For purposes of the child support obligation calculation, the court
will impute income of $50,000 to Svetlana and $155,000 to Christopher, "taking
into account obviously the alimony that's going to be paid;" and
A-0027-20 3 (8) Christopher will pay Svetlana $15,000 toward the cost of nursing
school, in which she was enrolled, when she presents billing statements to him.
The trial court confirmed with Christopher and Svetlana that they
voluntarily entered into the settlement and understood its terms. The court
thereafter directed counsel to reduce the agreement to writing.
After completing the trial, the court issued an oral opinion divorcing the
parties and designating Svetlana as the parent of primary residence with
Christopher having six out of fourteen overnights with the children. Based on
those findings, the court calculated the parties' child support obligations using
the guidelines. In doing so, the court did not account for the $45,000 in alimony
Christopher was obligated to pay Svetlana, instead using only the imputed
incomes to which the parties had agreed in their settlement. In addition, the
court did not consider the cost of the children's health insurance premiums paid
by Christopher. As a result, Christopher was ordered to pay Svetlana $165 per
week in child support. In addition, the court ordered Christopher to pay $58,750
of Svetlana's attorney's fees. Although the parties had not submitted a written
memorialization of their settlement, the court entered a JOD and a uniform
summary support order (USSO) reflecting its decisions.
A-0027-20 4 Christopher's counsel twice wrote the court, urging it to recalculate the
parties' child support obligations considering alimony, as provided in the
settlement agreement. He argued that if alimony is considered, Svetlana's
income exceeds Christopher's income, and Christopher should be awarded child
support from Svetlana. Christopher raised a number of other issues with respect
to the USSO's lack of conformity to the settlement agreement.
After entry of the JOD, the parties remained unable to agree on a written
memorialization of their settlement agreement. Svetlana's counsel submitted to
the court her proposed version of the written agreement, asking the court to enter
it as a supplemental order to the JOD pursuant to the five-day rule. See R. 4:42-
1(c). Christopher objected to several provisions of the proposed version of the
written agreement and moved pursuant to Rule 4:49-2 for reconsideration of a
portion of the JOD. Although his notice of motion was limited to challenging
the award of attorney's fees to Svetlana, he requested more extensive relief at
oral argument on the return date of the motion, including recalculation of his
child support obligation. Svetlana opposed the motion and cross-moved for an
order compelling Christopher to pay alimony and child support arrears pursuant
to the USSO and to reduce the unpaid attorney's fees award to judgment.
A-0027-20 5 The court issued an oral opinion denying Christopher's motion and
Svetlana's cross-motion, with the exception of Svetlana's request for entry of a
judgment for the unpaid attorney's fees. The court concluded it could not
recalculate Christopher's child support obligation without proof of the cost of
the children's health insurance, but did not address the question of whether
alimony should have been considered. The court informed the parties that if
they did not reach a written agreement on the settlement, it would enter the
proposed order submitted by Svetlana as a supplement to the JOD.
Christopher thereafter submitted written objections to Svetlana's proposed
written settlement agreement. Svetlana filed a written response to Christopher's
objections.
On May 24, 2019, the trial court entered an order on the parties' cross-
motions and incorporating Svetlana's version of the written settlement
agreement into the JOD. The court, however, made handwritten changes to the
agreement: (1) removing the provision imputing income to the parties for
purpose of calculating their child support obligations; and (2) crossing out the
unsigned signature blocks.
Christopher subsequently submitted a written objection to the May 24,
2019 order. He argued the court had altered material terms of the parties'
A-0027-20 6 settlement agreement and failed to enter a USSO that reflects the parties'
agreement. He also submitted proof of the children's insurance costs and
requested a recalculation of his child support obligation with the imputed
income to which the parties agreed in the settlement.
Christopher also filed a notice of appeal challenging the May 24, 2019
order. While the appeal was pending, the trial court entered a USSO which
calculated Christopher's child support obligation without imputing income to
Svetlana but imputing $155,000 to Christopher. The court also included
$45,000 in alimony paid to Svetlana as taxable income to her and excluded that
alimony from defendant's income. Christopher objected to the USSO. The court
thereafter entered a series of USSOs, each of which, according to Christopher,
did not correctly reflect the court's decision or the parties' settlement agreement.
Each time Christopher pointed out errors in the first four USSOs, the court
entered a USSO attempting to correct the errors. The USSOs were entered on
March 29, 2019, June 24, 2019, July 11, 2019, July 16, 2019, and August 6,
2019. Christopher amended his notice of appeal to include each USSO.
On April 14, 2020, we granted Christopher's motion for a remand of his
appeal to permit him to file a motion for reconsideration with the trial court. We
dismissed the prior appeal without prejudice.
A-0027-20 7 On May 22, 2020, Christopher moved: (1) for reconsideration of the
financial provisions of the JOD; (2) to set aside the parties' settlement
agreement; (3) to vacate the USSOs; (4) to vacate the supplement to the JOD
memorializing the settlement agreement; and (5) for the award of attorney's fees.
In support of his motion, Christopher argued: (1) Svetlana fraudulently
induced him to enter into the settlement agreement by misrepresenting her
financial condition; (2) the trial court improperly and unfairly modified material
terms of the settlement agreement when it altered the written version of the
agreement attached to the JOD; and (3) there was no meeting of the minds
between the parties with respect to significant terms of the purported settlement
agreement.
Christopher argued that Svetlana misrepresented that she was a full-time
nursing student with no ability to work when she was actually attending nursing
school sporadically and could have been employed. In addition, Christopher
alleged Svetlana was earning income from undisclosed employment when the
parties entered into the settlement. He argued he would not have agreed to the
amount of income imputed to the parties in the settlement had he been aware of
those facts. In addition, Christopher argued the court's alteration of the written
agreement either invalidated the settlement or is proof the parties did not have a
A-0027-20 8 meeting of the minds on an essential term of the agreement. Svetlana opposed
the motion.
On July 24, 2020, the trial court issued an oral opinion denying
Christopher's motion. The court concluded Christopher had not established
grounds for relief from the JOD or the parties' settlement agreement. With
respect to Christopher's claim Svetlana fraudulently induced him to enter into
the agreement, the court found:
[Christopher] claims [Svetlana] has not been transparent about her financial circumstances; however, he's failed to submit any proof that those allegations are in fact true. He does not demonstrate that [Svetlana], at the time of the parties' divorce, was receiving financial support from her now-fiancé . . . . He does not provide any proof of [Svetlana's] finances at the time that the oral settlement was placed on the record. He does not believe that [Svetlana] is a full- time student but fails to provide any documentation to support that assertion.
He comes to the [c]ourt claiming fraud on behalf of [Svetlana]. He does not provide any documentation or other proof to support such an allegation.
Christopher's allegations, the court found, did not meet the clear and convincing
standard for establishing fraud.
With respect to the court's alterations to the settlement agreement, the
court found "a parent is not free to contract away a child's support," which
A-0027-20 9 "belongs to the child and may not be waived or reduced by consent of the parties
without good cause." Noting its obligation to protect the children's interest, the
court found that "[a]lthough the parties agreed to impute an income to
[Svetlana], it would not be practical or fair to impute an income plus the alimony
payments . . . as she was not receiving that income at the time." The court
explained that "an agreement of an imputed income in this circumstance
ultimately waives the children's right to support" because "if both the agreed-
upon, imputed income and alimony payments were included in the child support
calculation, [Christopher's] child support obligation per week would be close to
nothing, around $6 . . . ." The court explained "the change was done sua sponte
for the benefit of the children and the children's right to support."
The court also found no grounds to vacate the USSOs. Although the court
recognized the earlier USSOs contained errors, it concluded the August 6, 2019
USSO was accurate and superseded the others.
Finally, the court concluded that Christopher was not entitled to an award
of attorney's fees. A July 24, 2020 order reflects the trial court's decision.
This appeal follows. Christopher argues the trial court: (1) mistakenly
concluded that Rule 4:50-1 affords relief only from judgments for equitable
distribution and not judgments setting divorcing parties' child support
A-0027-20 10 obligations; (2) abused its discretion by denying his motion without holding an
evidentiary hearing; (3) impermissibly altered the parties' settlement agreement;
and (4) erred when it denied his request for attorney's fees.
II.
Rule 4:50-1 provides, in relevant part:
[o]n motion, with briefs, and upon such terms as are just, the court may relieve a party or the party’s legal representative from a final judgment or order for the following reasons: . . . (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; . . . or (f) any other reason justifying relief from the operation of the judgment or order.
An application to set aside an order pursuant to Rule 4:50 is addressed to
the motion judge's sound discretion, which should be guided by equitable
principles. Hous. Auth. v. Little, 135 N.J. 274, 283 (1994). A trial court's
determination under Rule 4:50-1 is entitled to substantial deference and will not
be reversed in the absence of a clear abuse of discretion. US Bank Nat'l Ass'n
v. Guillaume, 209 N.J. 449, 467 (2012). To warrant reversal of the court's order,
Christopher must show that the decision was "made without a rational
explanation, inexplicably departed from established policies, or rested on an
impermissible basis." Ibid. (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J.
88, 123 (2007) (internal quotations omitted)).
A-0027-20 11 In determining whether a party should be relieved from a judgment or
order, courts must balance "the strong interests in the finality of litigation and
judicial economy with the equitable notion that justice should be done in every
case." Jansson v. Fairleigh Dickinson Univ., 198 N.J. Super. 190, 193 (App.
Div. 1985). "[J]ustice is the polestar and our procedures must ever be moulded
and applied with that in mind." Id. at 195 (quoting N.J. Highway Auth. v.
Renner, 18 N.J. 485, 495 (1955)).
Rule 4:50-1 has limited application in divorce actions. Motions "for relief
from equitable distribution provisions contained in a judgment of divorce and
property settlement agreements are subject to [Rule 4:50-1] and not, as in the
case of alimony, support, custody, and other matters of continuing jurisdiction
of the court, subject to a 'changed circumstances' standard." Pressler &
Verniero, Current N.J. Court Rules, cmt. 6.1 on R. 4:50-1 (2023) (quoting Miller
v. Miller, 160 N.J. 408, 418 (1999)).
Relief under subsection (f) of Rule 4:50-1 is available only when "truly
exceptional circumstances are present." Little, 135 N.J. at 286 (citation
omitted). "The movant must demonstrate the circumstances are exceptional and
enforcement of the judgment or order would be unjust, oppressive or
A-0027-20 12 inequitable." Johnson v. Johnson, 320 N.J. Super. 371, 378 (App. Div. 1999)
(citation omitted).
We are not persuaded by Christopher's argument that the trial court
misapplied our precedents with respect to requests for relief from the provisions
of the JOD concerning alimony and child support. See Larbig v. Larbig, 384
N.J. Super. 17, 24-25, 28-29 (App. Div. 2006) (the standards set forth in Rule
4:50-1 are applicable to a provision of a property settlement agreement that
"cannot be interpreted as an agreement to pay alimony, maintenance or
support."); Rosen v. Rosen, 225 N.J. Super. 33, 36-37 (App. Div. 1988) ("courts
have allowed modification of property settlement agreements under the catch -
all paragraph (f) of [Rule] 4:50-1, permitting modification for 'any other reason
justifying relief,' where there is a showing of inequity and unfairness" and
"where there is a showing of fraud or misconduct by a spouse . . . .").
Nor did the court err with respect to the standards for establishing fraud.
To establish legal fraud, Christopher must prove: "(1) a material representation
by [Svetlana] of a presently existing or past fact; (2) knowledge or belief by
[Svetlana] of its falsity; (3) an intent that [Christopher] rely upon it; (4)
reasonable reliance by [Christopher]; and (5) resulting damage to
[Christopher]." Weil v. Express Container Corp., 360 N.J. Super. 599, 612-13
A-0027-20 13 (App. Div. 2003) (citing Jewish Ctr. of Sussex Cty. v. Whale, 86 N.J. 619, 624
(1981)). "Fraud is not presumed; it must be proven through clear and convincing
evidence." Stochastic Decisions, Inc. v. DiDomenico, 236 N.J. Super. 388, 395
(App. Div. 1989) (citing Albright v. Burns, 206 N.J. Super. 625, 636 (App. Div.
1986)). Our review of the record reveals no support for Christopher's claim that
he established sufficient grounds for relief based on fraud. He offered nothing
but speculation that Svetlana fraudulently misrepresented her financial
condition, status as a nursing student, or ability to earn income at the time the
parties reached their settlement agreement. The settlement put on the record by
the parties' counsel did not require Svetlana to be a fulltime nursing student.
The parties agreed only that Christopher would pay the cost of Svetlana
attending nursing school.
We reach the same conclusion with respect to Christopher's argument the
trial court erred by not holding an evidentiary hearing on his motion. An
evidentiary hearing is not required on an application under Rule 4:50-1 unless
the moving party demonstrates a prima facie case of fraud, overreaching, or
patent unfairness. Dworkin v. Dworkin, 217 N.J. Super. 518, 525-26 (App. Div.
1987). "[A] plenary hearing is only required if there is a genuine, material and
legitimate factual dispute." Llewelyn v. Shewchuk, 440 N.J. Super. 207, 217
A-0027-20 14 (App. Div. 2015) (quoting Segal v. Lynch, 211 N.J. 230, 264-65 (2012)). We
agree with the trial court's conclusion that Christopher offered insufficient
evidence to warrant a hearing. Reconsideration of the JOD was, therefore, not
warranted under Rule 4:50-1.
We conclude, however, the trial court made an error of law when it
mistakenly exercised its discretion by revising the parties' settlement agreement.
The settlement of matrimonial disputes is encouraged and highly valued in our
court system. Quinn v. Quinn, 225 N.J. 34, 44 (2016). "'Agreements between
separated spouses executed voluntarily and understandingly for the purpose of
settling the issue of [alimony and child support] are specifically enforceable, but
only to the extent that they are just and equitable.'" Id. at 48 (quoting Berkowitz
v. Berkowitz, 55 N.J. 564, 569 (1970)). "[S]uch agreements are subject to
judicial supervision and enforcement." Ibid. "The equitable considerations that
bear upon the enforceability of . . . support agreements generally include . . . the
ability to pay and the respective incomes of the spouses . . . ." Petersen v.
Petersen, 85 N.J. 638, 645 (1981).
"The court's role is to consider what is written in the context of the
circumstances at the time of drafting and to apply a rational meaning in keeping
with the expressed general purpose." Pacifico v. Pacifico, 190 N.J. 258, 266
A-0027-20 15 (2007) (internal quotations omitted). "It is not the function of the court to
rewrite or revise an agreement when the intent of the parties is clear." Quinn,
225 N.J. at 45. "At the same time, the law grants particular leniency to
agreements made in the domestic arena, thus allowing judges greater discretion
when interpreting such agreements." Pacifico, 190 N.J. at 266 (internal
quotations omitted).
The terms of the settlement agreement placed on the record by counsel,
and confirmed by Christopher and Svetlana, were clear. The parties left the
calculation of their child support obligations to the court once it had made
decisions concerning custody and parenting. They expressly placed limits on
the court's discretion by agreeing to the amounts of income to be imputed to the
parties and by confirming that Christopher's alimony payments to Svetlana
would be considered when their respective responsibility for child support was
calculated.2
We agree that a fundamental principle of New Jersey law is that the right
to child support belongs to the child and not the parents. Martinetti v. Hickman,
2 Given the clarity of counsel's verbal recitation of the terms of the parties' settlement agreement and the parties' subsequent on-the-record confirmation of those terms, their failure to agree to a written version of the agreement is not material to our analysis. A-0027-20 16 261 N.J. Super. 508, 512 (App. Div. 1993). In addition, the needs of the children
must be considered by the court when determining the parents' responsibility for
child support. N.J.S.A. 2A:34-23(a)(1). However, there is nothing in the record
supporting the trial court's conclusion that the parties' agreement to impute
income to Svetlana for purposes of calculating the parties' child support
obligations would result in the children receiving insufficient financial support.
Svetlana agreed, in exchange for the various benefits she received under
the settlement agreement, to have $50,000 imputed to her, in addition to the
$45,000 or $35,000 in alimony she would be receiving, for purposes of
allocating the parties' child support obligations. Christopher, on the other hand,
agreed to imputed income of $155,000, minus, for child support purposes, the
$45,000 or $35,000 he would be paying in alimony. By agreeing to this
arrangement, the parties came close to equalizing their incomes for purposes of
their child support obligations, which reflects the nearly equal parenting time
ultimately ordered by the court. The court accepted these terms when the parties
placed their agreement on the record.
The fact that Svetlana was not actually earning $50,000 a year is not a
proper basis for rejecting the settlement. The imputation of annual income, by
its very definition, is an agreement by the parties that the court will calculate
A-0027-20 17 their financial obligations based on a specified amount of income without the
necessity of proving that they actually earned or could have earned that amount
of income. Svetlana did not move for relief from the provision of the agreement
imputing income to her and produced no proof that the amount imputed to her
was inequitable or unenforceable.
Nor is there evidence in the record that implementation of the parties'
agreement to impute income would deprive the children of adequate support.
Svetlana was receiving $45,000 in alimony for the first two years and $35,000
in alimony for the subsequent two years and agreed that an additional $50,000
of income should be imputed to her. Although the court opined that Svetlana
was not actually earning income, that observation was made without the benefit
of proof that Svetlana was not, or could not, earn income while attending nursing
school (whether full-time or part-time).3
Because the court erred by striking the income imputation provision from
the parties' settlement agreement, we reverse the portion of the July 24, 2020
order denying Christopher's motion to recalculate his child support obligation.
In addition, we vacate the provisions of the August 6, 2019 USSO concerning
3 We note that Christopher's obligation to pay alimony ends after four years. At that point, the change in the parties' financial circumstances may warrant an application for judicial review of their child support obligations. A-0027-20 18 child support and remand for recalculation of the parties' child support
obligations consistent with the terms of their settlement agreement, including
the imputation of income to both parties and with consideration of Christopher's
alimony obligation.
Finally, counsel fee determinations rest within the trial judge's sound
discretion. Williams v. Williams, 59 N.J. 229, 233 (1971). "We will disturb a
trial court's determination on counsel fees only 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)). An "abuse of discretion only arises on demonstration of 'manifest error
or injustice.'" Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v.
Torres, 183 N.J. 554, 572 (2005)).
Under Rule 4:42-9(a)(1), attorney's fees are allowable "[i]n a family
action . . . pursuant to Rule 5:3-5(c)." Under Rules 5:3-5(c), when awarding
counsel fees,
the court should consider . . . the following factors: (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 . . . ; (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
A-0027-20 19 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.
Applying these principles, we are not persuaded the trial court erred when it
denied Christopher's application for attorney's fees. For the most part,
Christopher's motion was not successful. To the extent that we reverse the trial
court, we do so because of its legal error and not because of any fault on
Svetlana's part.
To the extent we have not specifically addressed any of Christopher's
remaining claims, we conclude they 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 for a determination of
the parties' child support obligations consistent with the terms of their settlement
agreement and this opinion. We do not retain jurisdiction.
A-0027-20 20