ANDREW R. CACCIATORE v. JAMIE A. CACCIATORE
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-1957-18T1
ANDREW R. CACCIATORE,
Plaintiff-Respondent,
v.
JAMIE A. CACCIATORE,
n/k/a JAMIE A. WELKIS,
Defendant-Appellant.
___________________________
Submitted May 26, 2020 – Decided July 8, 2020
Before Judges Rothstadt and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-1075-07.
Jamie A. Cacciatore, appellant pro se.
Dale Carol Krouse, attorney for respondent.
PER CURIAM
In this post-judgment matrimonial matter, defendant Jamie A.
Cacciatore, n/k/a Jamie A. Welkis, appeals from the motion judge's November
2, 2018 order that denied her motion to enforce litigant's rights or,
alternatively, to modify or vacate a consent order executed between her and
plaintiff Andrew Cacciatore, which established their respective obligations for
the post-secondary college expenses of their daughter. The consent order
provided that plaintiff's obligation to pay child support would extinguish upon
the parties' daughter turning eighteen. In exchange, plaintiff agreed to pay for
their daughter's college expenses, up to a yearly contribution of $30,000.
On appeal, defendant argues that the judge erred in rejecting her
argument that the consent order should be modified to require defendant to pay
$120,000, rather than the actual costs incurred by their daughter, who opted to
attend Bergen County Community College (BCC). Defendant also argues that
the judge erred in granting plaintiff's cross-motion to enforce the consent order
as written and to compel defendant to pay his counsel fees. We affirm.
I.
We discern the following facts from the record. On July 4, 1998,
defendant and plaintiff were married. In 2000, the parties' daughter was born.
On February 26, 2007, the parties obtained a final judgment of divorce (JOD)
and executed a property settlement agreement (PSA). Section nine of the PSA
provided that "[b]oth parties acknowledge an obligation to contribute to [their
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daughter's] post-secondary educational expenses. 'Expenses' shall be defined
to include but not be limited to tuition, room and board, computer, registration
fees, student fees, other fees billed directly by the institution, required books,
supplies and laboratory materials, and transportation expenses." They
stipulated that due to their daughter's young age at the time of the consent
order, they would determine how to split education expenses at a later date,
and if they could not agree then, they would resolve the issue in court.
On March 18, 2016, the parties executed a consent order, modifying the
terms of the PSA that concerned their obligations with respect to child support
and their daughter's college expenses. Under the terms of the consent order,
plaintiff agreed to continue paying monthly child support of $1087 until the
parties' daughter turned eighteen, at which point child support payments would
permanently cease. Plaintiff agreed that, as part of the consideration for his
child support obligation ending, he would "be solely responsible for the cost of
up to four years of [the daughter's] full time, continuous college education of
tuition, room and board, required fees and books, said college attendance
commencing in the fall following [the daughter's] graduation from high school,
with a maximum cap of $30,000 per year."
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3
The parties agreed that they, together with their daughter, would jointly
decide where the daughter would attend college, "after discussion and
consideration of [her] high school academic record, her college academic
interests and intended major and career plans, if known at the time, and other
relevant considerations as to [her] best interests, recognizing the $30,000
maximum contribution per year from . . . plaintiff." The parties also agreed
that if plaintiff and the parties' daughter could not agree on a college with an
annual tuition of less than $30,000, and she chose to attend a school with a
greater annual tuition, the daughter would be personally responsible for any
excess cost.
Finally, the consent order also stipulated,
Both parties agree that they have had the opportunity
to consult with and discuss the terms of this [c]onsent
[o]rder with independent counsel and to consider the
terms of this agreement thoroughly and carefully
before signing it. Both parties acknowledge that they
are entering into this [c]onsent [a]greement willingly
and voluntarily, with no coercion or pressure from the
other or any third party, and both parties believe that
this agreement is fair and equitable to both of them
based upon their respective personal and financial
circumstances . . . however, most importantly, both
parties agree that this agreement is in [their
daughter's] best interests.
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On September 24, 2018, defendant moved to enforce litigant's rights, or,
alternatively, to modify or vacate the March 2016 consent order based on
changed circumstances, and sought further relief. Specifically, defendant
requested that the judge require plaintiff to contribute $30,000 per year over
the course of four years, during which the parties' daughter would be attending
college; reestablish plaintiff's child support obligation to contribute toward
costs incurred by defendant in caring for their daughter; require plaintiff to
carry a $500,000 life insurance policy for their daughter's benefit; compel
plaintiff to provide defendant with certain documents pertaining to his income,
including tax returns between 2015 and 2017; set a date for a plenary hearin g
on issues concerning child support and expenses; order plaintiff to pay child
support retroactive to January 1, 2018; and order plaintiff to pay counsel fees
and costs.
In support of her motion, defendant explained that at the time the parties
executed the March 2016 consent order, she just had surgery, she was anxious
and heavily medicated, and she did not have an attorney to explain the nature
of the agreement. Defendant claimed that under their agreement, plaintiff was
to pay a fixed amount of $30,000 per year during the time their daughter would
be attending a four-year college, and he had impermissibly reduced his amount
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paid per year to around $8000, representing the yearly tuition at BCC where
their daughter decided to attend school. Defendant claimed that to construe
the agreement otherwise would not be in their daughter's best interests.
Defendant alternatively argued that the agreement should be modified
based on changed circumstances because at the time of the order, the parties
had anticipated that their daughter would attend the Fashion Institute of
Technology (FIT), which had a significantly higher yearly tuition than BCC,
and that she would be living on campus. Instead, she was now commuting and
living at home while attending college. Defendant argued that their daughter's
choice to attend a community college had reduced plaintiff's financial
obligations, while defendant's had increased. She also argued that after the
parties executed the March 2016 consent order, her medical expenses
increased because their daughter began to suffer from depression, requiring
defendant to pay for various treatments. She further claimed that plaintiff's
salary had increased since the parties executed the March 2016 consent order,
while hers had fluctuated.
In response, plaintiff filed a cross-motion. Plaintiff sought to enforce
the terms of the consent order as written and requested that the judge deny
defendant's motion in its entirety. Plaintiff also requested counsel fees from
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defendant, claiming that she filed her motion in bad faith. On October 17,
2018, defendant, who was up until this point represented by counsel, executed
a substitution of attorney, thereafter proceeding pro se.
On November 2, 2018, after a motion hearing, Judge Avis Bishop-
Thompson found that defendant did not move to vacate the parties' consent
order within one year of its entry, as required by Rule 4:50-2. She also found
that defendant did not move to reconsider within twenty days of the date the
order was served upon her, pursuant to Rule 4:49-2. The judge further
concluded that defendant had not satisfied any of the reasons enumerated in
Rule 4:50-1, regarding relief from judgment or order.1 Specifically, the judge
found that there was no evidence supporting defendant's claims that she was
under the influence of prescription medication when she agreed to the March
2016 consent order. The judge also found that paragraph seven of the March
2016 order clearly and unambiguously stipulated that the parties knowingly
and voluntarily executed the agreement, which they acknowledged was in the
1
The judge also found defendant's application was procedurally deficient as
she failed to submit a brief in support of her motion, and she failed to annex a
case information statement from when the parties had executed the consent
order, as required by Rule 5:5-4(a)(4).
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best interests of their daughter, and there was otherwise no indication that the
agreement was arrived at by coercion, duress, or fraud.
The judge explained that she was constrained to enforce the agreement
as written, unless doing so would lead to an absurd result, which was not the
case here, as the agreement would leave the parties' daughter with minimal
debt after college, if any, and was in her best interests. The judge concluded
that the express wording of the agreement only required that plaintiff pay for
college expenses actually incurred in the four years following the daughter's
high school graduation, not a blanket amount of $30,000 per year during those
years.
As to defendant's request that the judge modify the consent order, the
judge found that defendant had failed to establish a substantial change in
circumstances. The judge explained that defendant provided no basis for the
modification, noting that her salary had increased between two-and-a-half to
three times relative to what she had been making when the parties executed the
consent order. The judge also denied requests from defendant that plaintiff
take out a $500,000 life insurance policy and that child support be
retroactively applied through August 31, 2018, finding that both were outside
the scope of the parties' consent order.
A-1957-18T1
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Based on these reasons, the judge granted plaintiff's cross-motion to
enforce the parties' consent order. As to plaintiff's application for counsel fees
totaling $6713.70, the judge applied the factors enumerated in Rule 5:3-5(c),
which provides that
the court should consider, in addition to the
information required to be submitted pursuant to
[Rule] 4:42-9, 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
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.
As to the financial circumstances of the parties, the judge determined that the
parties were equally situated "and that there appears to be no great disparity of
income, so that both parties are able to afford their attorney," although the
judge noted that defendant had appeared pro se.
Regarding the parties' ability to pay their own fees and contribute to the
other's fees, the judge noted that both parties are able to pay their own fees,
and she relied on documentation from the Newark Board of Education, which
showed that defendant was currently making $94,000 and had made slightly
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9
more than $96,000 the prior year. The judge determined that defendant filed
her motion with unclean hands and in bad faith because the parties' consent
order was unambiguous regarding the parties' financial obligations; thus, the
judge found that the parties' ability to pay was irrelevant. She likewise found,
with respect to the reasonableness and good faith of the parties, that
defendant's failure to timely move to reconsider or vacate the parties' consent
order rendered her motion unreasonable and brought in bad faith.
Concerning the extent of fees incurred by the parties, the judge found
that plaintiff had thus far expended $5726.20 in fees excluding his attorney 's
appearance at the hearing, while the judge recognized that defendant had
certified that she had paid her attorney $7500, though there was no
certification of services to corroborate this figure. The judge noted that the
court had not previously awarded fees to either party, but plaintiff's counsel
had not yet been paid.
As to the results obtained, the judge considered that she was denying
defendant's motion in its entirety and granting plaintiff's cross-motion to
enforce the consent order. The judge concluded that factor eight did not apply,
and regarding any other factors bearing on the fairness of an award, she
reiterated that the agreement was clear and unambiguous. Thus, after
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considering these factors and the factors of RPC 1.5(a), the judge ordered that
defendant pay plaintiff's counsel fees of $6713.70 within sixty days. That
same day, the judge entered an order denying defendant's motion in its entirety
and granting plaintiff's cross-motion to enforce the consent order and for
counsel fees. This appeal ensued.
On appeal, plaintiff raises the following arguments:
I: THE TRIAL COURT ERRED BY DENYING
DEFENDANT[']S MOTION TO ENFORCE
LITIGANT[']S RIGHTS ALTERNATIVELY
MODIFYING THE CONSENT ORDER FROM
MARCH 19, 2016 FOR LACKING PROCEDURAL
COMPLIANCE WITH . . . [RULE] 4:49(c), [RULE]
4:49-2, [RULE] 4:4-50(A-F), AND [RULE] 5:5-4.
II: THE TRIAL COURT FAILED TO APPRECIATE
THE FACTS AND EVIDENCE TO FIND CHANGED
CIRCUMSTANCES OF INCOME DISPARITY,
DAUGHTER'S MENTAL HEALTH ISSUES AND
DAUGHTER[']S COMMUTING TO COMMUNITY
COLLEGE, AND UNPAID COLLEGE EXPENSES.
III: THE TRIAL COURT ERRED BY FAILING TO
ORDER A FACT-FINDING PLENARY HEARING
TO CONFIRM CHANGED CIRCUMSTANCES,
BASING ITS DECISION ON ASSUMPTION OF
PLAINTIFF'S COMPLIANCE WITH THE MARCH
2016 CONSENT ORDER PURSUANT TO NEW
JERSEY STATE LAWS.
IV: THE TRIAL COURT . . . ERRED GRANTING
PLAINTIFF[']S CROSS MOTION TO ENFORCE
MARCH 2016 CONSENT ORDER PARAGRAPHS 3,
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4 AND 5, AS A WAIVER OF CHILD SUPPORT BY
EITHER PARENT VIOLATES PUBLIC POLICY
AND CHILD SUPPORT IS A LEGAL RIGHT.
V: THE TRIAL COURT . . . ERRED BY FAILING
TO APPRECIATE THE FACTS, MISAPPLYING
THE LAW, AND FACT-FINDING
REQUIREMENTS BY DENYING CHILD SUPPORT
ARREARS THAT ARE A PRECEDENT IN ALL
[OF] THE PARTIES['] PSA'S.
VI: THE TRIAL COURT . . . ABUSED ITS
DISCRETION IN ITS APPLICATION OF THE
LAW, THE DOCTRINE OF UNCLEAN HANDS IN
AWARDING PLAINTIFF[']S COUN[SEL] FEES TO
DEFENDANT, DENYING DEFENDANT[']S FEES
TO BE PAID BY . . . PLAINTIFF, AND
VIOLATING . . . DEFENDANT'S RIGHTS TO DUE
PROCESS WHEN DEFENDANT WAS DENIED
THE OPPORTUNITY FOR REBUTTAL OR
CLOSING STATEMENT PURSUANT TO . . .
[RULE] 1:7-1.
We find no merit in defendant's arguments. We affirm substantially for
the reasons set forth in the judge's thorough and well-reasoned November 2,
2018 oral decision. We add only the following comments.
II.
Our review of a Family Part judge's factual findings is limited. N.J. Div.
of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577 (App. Div.
2010). The judge's findings "are binding on appeal when supported by
adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-
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12 (1998). We will only reverse if the judge's findings were "so manifestly
unsupported by or inconsistent with the competent, relevant and reasonably
credible evidence as to offend the interests of justice." Rova Farms Resort,
Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v.
Township of North Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)).
However, we give no deference to the judge's interpretation of the law. N.J.
Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div.
2006). Likewise, we review the enforceability of a contract de novo. Curran
v. Curran, 453 N.J. Super. 315, 320 (App. Div. 2018). "We owe no deference
to the interpretative analysis of . . . the trial [judge] . . . except as we may be
persuaded by . . . [his or her] reasoning[.]" Morgan v. Sanford Brown Inst.,
225 N.J. 289, 303 (2016).
"[A] proceeding to enforce litigants' rights under Rule 1:10-3 'is
essentially a civil proceeding to coerce the defendant into compliance with the
court's order for the benefit of the private litigant.'" Pasqua v. Council, 186 N.J. 127, 140 (2006) (quoting Essex Cty. Welfare Bd. v. Perkins, 133 N.J.
Super. 189, 195 (App. Div. 1975)). The purpose of relief afforded under Rule
1:10-3 is "to facilitate the enforcement of the court order." Ridley v.
Dennison, 298 N.J. Super. 373, 381 (App. Div. 1997).
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[M]atrimonial agreements between spouses relating to
alimony and support, which are fair and just, fall
within the category of contracts enforceable in equity.
Such agreements are essentially consensual and
voluntary in character and therefore entitled to
considerable weight with respect to their validity and
enforceability notwithstanding the fact that such an
agreement has been incorporated in a judgment of
divorce.
[Petersen v. Petersen, 85 N.J. 638, 642 (1981)
(citations omitted).]
With these governing principles in mind, we agree with the judge's
decision to enforce the terms of the parties' consent order as written. As the
judge found, the terms of the order unambiguously established that plaintiff's
maximum contribution towards the parties' daughter's college expenses would
be $30,000 but that his expenses could be less, depending on her choice of
school and other miscellaneous factors.
Further, the express terms of the order evinced that the parties had
executed the agreement knowingly and voluntarily, and, as noted by the judge,
there is no contrary evidence indicating that the agreement was the product of
coercion, duress, or fraud, and the terms of the agreement did not produce an
absurd result. See Quinn v. Quinn, 225 N.J. 34, 47 (2016) ("A narrow
exception to the general rule of enforcing settlement agreements as the parties
intended is the need to reform a settlement agreement due to
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'unconscionability, fraud, or overreaching in the negotiations of the
settlement[.]'" (alteration in original) (quoting Miller v. Miller, 160 N.J. 408,
419 (1999))); Petersen, 85 N.J. at 642.
We also affirm the judge's denial of defendant's request to either vacate
or reconsider the March 2016 consent order. As the judge correctly found,
defendant's motion, which was filed two-and-a-half years after the March 2016
order, was untimely as to both vacation and reconsideration. See R. 4:50-2
("The motion [for relief from judgment or order] shall be made within a
reasonable time, and for reasons (a), (b) and (c) of [Rule] 4:50-1 not more than
one year after the judgment, order or proceeding was entered or taken."); R.
4:49-2 ("Except as otherwise provided by [Rule] 1:13-1 (clerical errors) a
motion for . . . reconsideration seeking to alter or amend a judgment or order
shall be served not later than [twenty] 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[.]").
Regardless, we also agree there were no changed circumstances
warranting modification of the consent order. The order provided that all child
support ceased upon the parties' daughter reaching the age of eighteen. As
consideration for that agreement, plaintiff agreed to assume all costs for the
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daughter's post-secondary education. Plaintiff has abided by the agreement,
resulting in the daughter having attended the school of her choice, while
incurring little or no debt. That the parties' daughter chose to attend BCC
rather than FIT as the parties had at one point anticipated is not a change in
circumstances that warrants modifying or vacating the consent order.
We also reject defendant's argument that the judge erred in awarding
plaintiff counsel fees. The decision to award counsel fees in a family action
lies within the discretion of the trial judge. R. 5:3-5(c); Addesa v. Addesa, 392 N.J. Super. 58, 78 (App. Div. 2007). That determination will be disturbed
"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)).
Here, we discern no abuse of discretion. The judge carefully considered
all of the factors set forth in Rule 5:3-5(c), and her finding that defendant's
application was in bad faith, given the unambiguous terms of the agreement
and the untimeliness of the application, is sufficiently supported by the record.
Thus, we find no basis to disturb the fee award.
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To the extent we have not addressed any of the parties' remaining
arguments, we conclude that they are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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