E.H. v. J.L.
Annotate this CaseNOT 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-5398-15T4
E.H., f/k/a E.L.,
Plaintiff-Respondent/
Cross-Appellant,
v.
J.L.,
Defendant-Appellant/
Cross-Respondent.
__________________________
Submitted February 27, 2018 - Decided April 17, 2018
Before Judges Reisner, Gilson, and Mayer.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FM-07-0145-11.
Cowen & Jacobs, attorneys for appellant/cross-
respondent (Barbara E. Cowen, on the briefs).
Snyder, Sarno, D'Aniello, Maceri & da Costa,
LLC, attorneys for respondent/cross-appellant
(Edward S. Snyder, of counsel and on the
brief; Stacey A. Cozewith and Lydia S. LaTona,
on the brief).
PER CURIAM
In this post-judgment divorce matter, defendant J.L.1 appeals
from a September 16, 2014 order denying his motion to vacate a
consent order, and a March 10, 2015 order increasing his child
support obligation. Plaintiff E.H. cross-appeals from portions
of the March 10, 2015 order allocating the guidelines-based child
support award, and a June 30, 2016 order denying her request for
attorney's fees.
We affirm the September 16, 2014 order denying defendant's
motion to vacate the consent order, and the June 30, 2016 order
denying plaintiff's request for attorney's fees because those
orders were supported by substantial, credible evidence. We are
constrained to vacate the March 10, 2015 order, however, and remand
the matter to the Family Part to recalculate the amount and
allocation of child support.
I.
The parties were married in June 2005. They have one child,
a daughter, born in October 2007. Plaintiff filed for divorce in
2010. With the assistance of counsel, the parties entered into a
matrimonial settlement agreement (MSA). The MSA was incorporated
into their final judgment of divorce, and the judgment was entered
in March 2011.
1
We use initials to protect the parties' privacy interests. See
R. 1:38-3(d).
2 A-5398-15T4
Under the terms of the MSA, defendant agreed to pay plaintiff
$147,000 per year in limited duration alimony for three and one-
half years. Defendant also agreed to pay $2750 per month in basic
child support, and seventy percent of other child-related
expenses. The MSA provided that after alimony was terminated, the
parties would renegotiate defendant's child support and child-
related expense obligations.
Following their divorce, both parties have remarried.
Plaintiff began dating her current husband in 2011. They were
engaged in March 2012, moved in together in June 2012, and got
married in September 2012. When defendant learned that plaintiff
was planning to remarry, the parties began to discuss resolving
alimony with a lump sum payment. Initially, the parties were not
successful in negotiating a resolution and, in August 2012,
defendant filed a motion to terminate or modify alimony based on
plaintiff's cohabitation with her then-fiancé.
During those negotiations, plaintiff did not disclose her
actual wedding date. Through mediation, the parties eventually
agreed that defendant would pay a lump sum of $55,000 to plaintiff
as full satisfaction of all alimony obligations. That agreement
was incorporated into an August 31, 2012 consent order (August
2012 consent order).
3 A-5398-15T4
In October 2012, plaintiff moved to modify defendant's child
support obligation in light of the termination of alimony and in
accordance with the terms of the MSA. Defendant cross-moved to
vacate the August 2012 consent order contending that plaintiff
fraudulently concealed her September 2012 wedding date during
settlement negotiations. In connection with his motion, defendant
sought to elicit testimony from the mediator to establish
plaintiff's alleged fraud. The Family judge ruled that the
mediator could not be called as a witness because the parties'
discussions during mediation were privileged and inadmissible.
The Family Part held a five-day plenary hearing between April
and December 2014. After the hearing, the court denied defendant's
motion to vacate the August 2012 consent order and granted
plaintiff's motion to increase defendant's child support
obligation. The court embodied its rulings in a September 16,
2014 order.
Addressing defendant's application to vacate the August 2012
consent order, the court found that defendant failed to establish
that plaintiff had engaged in fraud. Specifically, the Family
judge found that "it would be different . . . if defendant's
attorney or defendant had specifically asked [plaintiff] when she
was getting married, but there was no testimony or evidence
presented showing that that question was ever asked[.]" With
4 A-5398-15T4
regard to child support, the court calculated the child's
reasonable monthly expenses, and then addressed the child support
guidelines. Ultimately, the court ordered defendant to pay a
total of $3700 per month in child support.
Defendant moved for reconsideration of the September 16, 2014
order, arguing that the court erred in calculating his modified
child support obligation. Plaintiff cross-moved for attorney's
fees. On March 10, 2015, the court entered an order granting in
part and denying in part defendant's motion for reconsideration
as to child support. In that regard, the court decreased
defendant's child support obligation to $3,553.43 per month due
to certain miscalculations. On June 30, 2016, the court entered
an order, supported by a statement of reasons, denying both
parties' requests for attorney's fees in connection with the
plenary hearing.
Following the entry of the June 30, 2016 order, defendant
filed a notice of appeal and plaintiff filed a notice of cross-
appeal.
II.
On appeal, defendant makes five arguments, contending that
the trial court erred in (1) failing to find that plaintiff engaged
in fraud, (2) not vacating the August 2012 consent order,
(3) requiring defendant to pay 100 percent of supplemental child
5 A-5398-15T4
support in excess of the guidelines-based amount, and
(4) calculating the amount of supplemental child support.
Defendant also argues that this court should correct the alleged
errors in the March 10, 2015 decision. In her cross-appeal,
plaintiff argues that the trial court erred in (1) allocating the
amount of guidelines-based child support that each party was
obligated to pay, and (2) denying her request for attorney's fees
in connection with the plenary hearing.
Both plaintiff and defendant have identified minor errors in
the calculation of the child support obligations. Thus, we affirm
in part and reverse and remand in part. We will analyze the
consent order, the child support issues, and the attorney's fees
in the following three sections.
A. The August 2012 Consent Order
Defendant contends that the trial court erred in finding that
plaintiff did not engage in fraud, and in denying his motion to
vacate the August 2012 consent order. We disagree.
Settlement agreements in matrimonial cases are contracts that
should be enforced provided that they are fair and just. Quinn
v. Quinn,
225 N.J. 34, 44 (2016); Petersen v. Petersen,
85 N.J.
638, 642 (1981); see also Lepis v. Lepis,
83 N.J. 139 (1980).
"Indeed, there is a 'strong public policy favoring stability of
arrangements in matrimonial matters.'" Quinn,
225 N.J. at 44
6 A-5398-15T4
(quoting Konzelman v. Konzelman,
158 N.J. 185, 193 (1999)).
"[F]air and definitive arrangements arrived at by mutual consent
should not be unnecessarily or lightly disturbed.'" Ibid. (quoting
Smith v. Smith,
72 N.J. 350, 358 (1977)). Thus, a party seeking
to set aside a settlement agreement must prove fraud by clear and
convincing evidence. See Smith v. Fireworks by Girone, Inc.,
380 N.J. Super. 273, 291 (App. Div. 2005), certif. denied,
186 N.J.
243 (2006).
Defendant argues that plaintiff intentionally concealed her
wedding date during settlement negotiations and, as a result,
received a windfall that exceeded the alimony that she otherwise
would have received. The record does not support that argument.
The Family judge found no evidence that plaintiff's wedding date
was discussed during the August 2012 mediation.
In addition, defendant failed to establish that plaintiff's
non-disclosure of her wedding date constituted fraud. In that
regard, the Family judge found that "[w]hether [plaintiff's
decision not to disclose her wedding date] was a settlement tactic
or a negotiation tactic . . . [it did not] rise[] to the level of
fraud." The Family judge properly exercised her discretion in
denying defendant's motion, and we discern no basis to disturb
that decision. See DEG, LLC v. Township of Fairfield, 198 N.J.
7 A-5398-15T4
242, 261 (2009) (reviewing a trial court's denial of a motion to
vacate a consent order for an abuse of discretion).
B. Child Support Calculations
Family judges are vested with "great judicial discretion" in
determining the amount of child support. Gnall v. Gnall,
222 N.J.
414, 431 (2015); Elrom v. Elrom,
439 N.J. Super. 424, 433 (App.
Div. 2015). We will overturn a child support award, however, when
there was a clear abuse of discretion, a failure to correctly
apply governing legal principles, or findings of fact that were
clearly mistaken or lacking support in the record. Elrom,
439 N.J. Super. at 433; Heinl v. Heinl,
287 N.J. Super. 337, 345 (App.
Div. 1996).
Defendant contends that the Family judge erred in calculating
the amount and allocation of supplemental child support. Plaintiff
argues that the Family judge erred in allocating the guidelines-
based child support in defendant's favor.2 Having reviewed the
parties' arguments in light of the record, we are constrained to
2
Plaintiff did not raise this issue before the Family Part.
Generally, we do not consider issues not raised before the trial
court. Under the circumstances presented in this appeal, however,
we address plaintiff's argument because it affects the
recalculation of defendant's total monthly child support award.
See Paff v. Ocean Cty. Pros. Office,
446 N.J. Super. 163, 190
(App. Div. 2016) ("[A]n issue not raised below may be considered
. . . if it meets the plain error standard or is otherwise of
special significance to the litigant . . . .").
8 A-5398-15T4
vacate the March 10, 2015 order, and remand to the Family Part to
recalculate defendant's total child support obligation.
1. Allocation of Guidelines-Based Child Support
Rule 5:6A provides that the child support guidelines "shall
be applied when an application to establish or modify child support
is considered by the court." To calculate each parent's percentage
share of income for purposes of guidelines-based child support,
the court must divide each parent's individual net income by their
combined net income. Child Support Guidelines, Pressler &
Verniero, Current N.J. Court Rules, Appendix IX-B to R. 5:6A
(2017). The total guidelines-based child support award is then
multiplied by each parent's percentage share of income to determine
each parent's guidelines-based child support obligation. Ibid.
Even where the parents' combined income exceeds the child support
guidelines, the maximum support under the guidelines must be
allocated between the parents based on their relative net incomes.
Caplan v. Caplan,
364 N.J. Super. 68, 89 (App. Div. 2003).
Here, the Family judge stated that she used defendant's base
salary and two annual bonuses in calculating the amount and
allocation of guidelines-based child support. Notably, the judge
did not include defendant's substantial commissions in calculating
his gross and net income, as required under the guidelines. See
Child Support Guidelines, Pressler & Verniero, Current N.J. Court
9 A-5398-15T4
Rules, Appendix IX-B to R. 5:6A (2017) ("Gross income, includes,
but is not limited to compensation for services, including wages,
fees, tips, and commissions.").
On remand, the Family judge must consider each party's
individual net income as a percentage of their total combined net
income when allocating the guidelines-based child support award.
That calculation must include defendant's commission-based income.
Accordingly, on remand, both plaintiff and defendant must produce
amended case information statements, and supporting financial
documents reflecting their respective gross and net incomes.
2. Amount of Discretionary Child Support
In cases where the parties earn in excess of $187,200, the
court must apply the child support guidelines up to that amount,
then supplement the guidelines-based award with a discretionary
amount based upon the remaining family income and the factors set
forth in
N.J.S.A. 2A:34-23(c). Elrom,
439 N.J. Super. at 443.
Thus, in determining the discretionary child support award,
the maximum [guidelines-based] child support
amount . . . should be subtracted from the
[total child-related expenses] to determine
the remaining children's needs to be allocated
between the parties. Then, the court must
analyze the factors outlined in N.J.S.A.
2A:34-23 and determine each party's
responsibility for satisfying those remaining
needs.
[Caplan,
364 N.J. Super. at 90.]
10 A-5398-15T4
In the March 10, 2015 order, the Family judge found that the
child's total monthly expenses were $4,022.75. The judge then
correctly stated that she had to deduct the total guidelines-based
child support award from the total monthly expenses to determine
the amount of discretionary supplemental child support. In doing
so, however, the Family judge inadvertently miscalculated the
amount of supplemental child support.
The correct calculation for supplemental child support would
have been the child's total monthly expenses of $4,022.75, less
the total guidelines-based child support of $2,455.30 ($571 x 4.3)
for a total supplemental child support award of $1,567.45 per
month. The Family judge did not deduct the correct amount from
the child's total monthly expenses and, therefore, a recalculation
of the supplemental child support award is necessary.
3. Allocation of Supplemental Child Support
In allocating 100 percent of the supplemental child support
obligation to defendant, the Family judge correctly identified and
weighed the factors detailed in
N.J.S.A. 2A:34-23(c). The court
based the allocation of supplemental child support on factors two
(standard of living and economic circumstances of each parent),
three (all sources of income and assets of each parent), and six
(age and health of the child and each parent). The judge placed
the greatest amount of weight on factor three (defendant's high
11 A-5398-15T4
income). These findings were based on substantial, credible
evidence and we discern no basis to disturb the Family judge's
allocation of 100 percent of supplemental child support to
defendant.
C. Denial of Plaintiff's Request for Attorney's Fees
Plaintiff contends that the Family judge erred in denying her
request for attorney's fees because defendant did not participate
in settlement negotiations in good faith, and forced her to incur
legal fees by engaging in needless motion practice.
An award of counsel fees in matrimonial matters rests within
the sound discretion of the Family judge. See
N.J.S.A. 2A:34-23;
R. 5:3-5(c). We will disturb a counsel fee award "only on the
'rarest occasion,' and then only because of a clear abuse of
discretion." Barr v. Barr,
418 N.J. Super. 18, 46 (App. Div.
2011) (quoting Strahan v. Strahan,
402 N.J. Super. 298, 317 (App.
Div. 2008)).
Here, the Family judge appropriately considered the standards
set forth in
N.J.S.A. 2A:34-23 and Rule 5:3-5(c) in evaluating the
requests for attorney's fees. The judge concluded that neither
party was entitled to attorney's fees based upon their ability to
pay, and the positions taken during litigation. We discern no
abuse of discretion in the Family judge's decision to deny
plaintiff's request for attorney's fees.
12 A-5398-15T4
III.
In sum, we affirm the September 16, 2014 order denying
defendant's motion to vacate the August 2012 consent order, and
the June 30, 2016 order denying plaintiff's request for attorney's
fees. We vacate the March 10, 2015 order and remand the matter
for the limited purpose of recalculating defendant's total monthly
child support obligation consistent with this opinion. In
directing this remand, we emphasize that the parties should not
be allowed to re-litigate issues already decided or to raise issues
that could have been previously raised, but were not raised.
Affirmed in part, reversed and remanded in part. We do not
retain jurisdiction.
13 A-5398-15T4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
