K.L.B. v. R.B.
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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
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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.
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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.
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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
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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
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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
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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.
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"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).
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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.
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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
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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.
V.
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
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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
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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
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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.
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