COURT OF NEW JERSEY DIVISION RHONDA J MCMANUS v. MATTHEW SALEEBY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4496-08T2

RHONDA J. MCMANUS,

Plaintiff-Appellant,

v.

MATTHEW SALEEBY,

Defendant-Respondent.

____________________________________________

May 4, 2011

Submitted March 29, 2011 - Decided

Before Judges Wefing, Payne, and Hayden.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-018-06.

Henry J. Aratow, Jr., attorney for appellant.

Laufer, Dalena, Cadicina, Jensen & Boyd, L.L.C., attorneys for respondent (Mario N. Delmonaco, of counsel and on the brief).

PER CURIAM

Plaintiff appeals from a post-judgment order denying her motion to enforce a November 2007 consent agreement that permitted her, on default, to reinstate certain claims and to obtain their resolution at a plenary hearing. After reviewing the record in light of the contentions advanced on appeal, we affirm.

I.

Plaintiff Rhonda McManus and defendant Matthew Saleeby were divorced in 1993. In 2005, plaintiff brought a motion for child support, contribution toward college tuition, and counsel fees. After extensive discovery, the parties entered into an agreement in August 2007, to resolve these issues. They signed a consent agreement in November 2007. The court entered a consent order approving the consent agreement on March 3, 2008.

The consent agreement provided for defendant to pay $100 per week child support and pay $15,000 per year toward the college tuition of their daughter. In addition, he agreed to make a $5,000 payment each year to prepay the fourth-year tuition. Each party agreed to be responsible for his or her own counsel fees. The agreement also provided:

The terms of this Consent Order shall be non[-]modifiable except in the event of the Defendant's default with regard to any of the provisions. In the event that the Defendant defaults, the Plaintiff may make an application to the Court for enforcement and or to reinstate her original claims that were to be heard by way of plenary hearing.

On March 26, 2008, plaintiff brought a motion to enforce the consent agreement. Plaintiff alleged that defendant had failed to pay $5,000 toward the fourth-year college tuition. Plaintiff asked for enforcement of the tuition provision and for a plenary hearing on her original claims.

Immediately prior to the hearing on May 9, 2008, defendant paid plaintiff the balance owed on the tuition. At the hearing defendant argued that he was no longer in default. Nonetheless, the motion judge vacated the consent order and increased child support to $278 per week and tuition payments to $20,000. He also awarded counsel fees of over $18,000 for past legal services. The motion judge based the increased child support on bank statements showing that over $900,000 had passed through defendant's bank account the previous year. The motion judge stated that he was imputing $150,000 income to the defendant.

Defendant promptly moved for reconsideration. On July 9, 2008, the motion judge acknowledged that he had not followed the court rules in his previous order, granted the motion for reconsideration, and vacated his May 9 order. Then, the motion judge reinstated plaintiff s original claims and set the matter down for a plenary hearing. The motion judge reduced the previous tuition increase but continued the increased child support payments pending the plenary hearing. He also vacated the award of attorney's fees for past services but awarded the plaintiff $20,000 for attorney's fees to be incurred by her counsel in preparing for the plenary hearing.

Defendant filed an order to show cause for a stay of the order, which was denied on July 10, 2008. On July 15, 2008, defendant filed a motion for leave to take an interlocutory appeal with this court. We denied his request for an emergency hearing on July 30, 2008. We also denied his request for interlocutory relief on August 29, 2008.

In September 2008, due to the motion judge being transferred from the Family Division, Judge Julie M. Marino began handling this case. When defendant did not pay the ordered counsel fees, plaintiff made a motion to enforce the July 9, 2008, order. Defendant then made a cross motion to dismiss plaintiff's motion and to vacate the July 9, 2008, order.

On December 23, 2008, Judge Marino granted defendant s motion to vacate the order of July 9, 2008. The judge ruled that the consent agreement was still in effect as plaintiff had continued to receive the benefit of the bargain. The judge further held that, as all issues had been resolved by the consent agreement, no issues of material fact had been presented that needed to be heard at a plenary hearing. Accordingly, the judge returned the child support to $100 per week as set in the consent agreement and reversed the order for a plenary hearing and accompanying counsel fees. On February 27, 2009, the judge also denied plaintiff s motion for reconsideration. This appeal followed.

II.

On appeal, plaintiff raises the following arguments for our consideration:

I. It was harmful error to arbitrarily and capriciously reverse and vacate a prior order entered in the action without demonstrating any change of facts or circumstances to justify the reversal, an invasion of appellate jurisdiction, and an abuse of discretion.

II. The trial court made a harmful error when it misinterpreted the terms of the consent order as a matter of contract law and in contravention of the prior ruling in the case.

III. It was harmful error to disturb the findings of imputed income made by the prior trial court.

IV. The pendente lite counsel fee was properly awarded by the prior trial court and it was harmful error to disturb it.

We find that Judge Marino did not abuse her discretion in declining to consider defendant's late payment of the tuition a breach of the consent agreement that triggered a plenary hearing on plaintiff's original claims. In reviewing a trial judge's decisions, the question is not whether this court would come to a different conclusion were it the trial tribunal. N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super.427, 433 (App. Div. 2002). We intervene only when convinced that the trial judge's factual findings "'are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare v. Cesare, 154 N.J.394, 412 (1998) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J.474, 484 (1974)). Where the court s review addresses questions of law, "the trial judge's findings are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." Z.P.R., supra, 351 N.J. Super.at 434 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.366, 378 (1995)).

Plaintiff argues that Judge Marino, by reversing the July 9, 2008 order, invaded "appellate jurisdiction." Initially, we must point out that plaintiff is inaccurate in terming as appellate the rulings of a trial judge who took over a pending case from another trial judge. We discern that plaintiff may be referring to the principle of law of the case, which provides that a party cannot relitigate previously resolved issues. SeeWashington Commons, LLC v. City of Jersey City, 416 N.J. Super. 555, 563 (App. Div. 2010). If so, we do not find this argument persuasive.

The law of the case doctrine is a "discretionary rule of practice and not one of law." Brown v. Twp. of Old Bridge, 319 N.J. Super. 476, 494 (App. Div.), certif. denied., 162 N.J.131 (1999). Judges have the power, in the exercise of their sound discretion, to re-examine their rulings during the course of a case. Id.at 513. Just as a judge may change his or her opinion about an issue during a case, a judge taking over a case for another judge may do so as well. SeeAyers v. Jackson, 106 N.J.557, 611-12 (1987). We perceive nothing arbitrary about Judge Marino's decision to revisit the July 9, 2008, order.

Plaintiff also argues that Judge Marino misinterpreted the consent agreement by finding defendant s late payment of the tuition did not amount to a material breach of the agreement. We disagree. Matrimonial agreements are contractual in nature and [a]s a general rule, courts should enforce contracts as the parties intended. Pacifico v. Pacifico, 190 N.J.258, 266 (2007); see alsoFlanigan v. Munson, 175 N.J.597, 606 (2003). A material breach of a contract excuses the other party from further performance. Nolan v. Lee Ho, 120 N.J.465, 472 (1990).

In interpreting a contract, we "consider what is written in the context of the circumstances at the time of drafting and apply a rational meaning in keeping with the 'expressed general purpose.'" Pacifico, supra, 190 N.J.at 266 (quoting Northern Airlines, Inc. v. Schwimmer, 12 N.J.293, 302 (1953)). In addition, the law grants particular leniency to agreements made in the domestic arena. Ibid.(quoting Guglielmo v. Guglielmo, 253 N.J. Super.531, 542 (App. Div. 1992)). Thus, judges have "'greater discretion when interpreting such agreements.'" Ibid.(quoting Guglielmo, supra, 253 N.J. Super.at 542). In our analysis we are mindful that "fair and definitive arrangements arrived at by mutual consent should not be unnecessarily or lightly disturbed." Konzelman v. Konzelman, 158 N.J.185, 193-94 (1999) (quoting Smith v. Smith, 72 N.J.350, 358 (1977)).

Applying this standard, we hold that in this case the judge's interpretation of the consent agreement was correct. The judge reasoned that defendant s brief default must be examined in the context of the entire agreement. Defendant was up to date on child support payments and current tuition payments. He defaulted only when he failed to pay plaintiff $5,000 of the $15,000 allocated for the daughter s tuition for her final year. This default was cured by the time the hearing on the original motion occurred. The judge did not find a material breach of the consent agreement that would trigger the default provision reinstating plaintiff's original claims. Thus, the judge determined that, as the provisions of the consent agreement regarding child support and tuition remained in effect, no valid reason existed to hold a plenary hearing on the original claims. We see no basis for overturning the judge's interpretation of the consent agreement.

In light of the above, plaintiff's remaining contentions concerning pendente lite attorney's fees for the plenary hearing and imputing income in order to recalculate child support are without sufficient merit to warrant further discussion in this opinion. R.2:11-3(e)(1)(E).

A