ANDREW R. CACCIATORE v. JAMIE A. CACCIATORE

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                               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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      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.


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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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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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