CATHERINE SCOTT v. EARNEST SCOTT
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-5232-18T3
CATHERINE SCOTT,
Plaintiff-Respondent,
v.
EARNEST SCOTT,
Defendant-Appellant.
_________________________
Submitted November 12, 2020 – Decided December 9, 2020
Before Judges Geiger and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Atlantic County,
Docket No. FM-01-0412-14.
King & King, LLC, attorneys for appellant (Sharon A.
King, on the brief).
Fuhrman & Edelman, attorneys for respondent (Ronald
B. Edelman, on the brief).
PER CURIAM
In this post-judgment matrimonial matter, defendant Earnest J. Scott
appeals from a June 21, 2019 Family Part order that: (1) denied his motion to
vacate the parties' property settlement agreement (PSA); (2) denied his motion
to reduce or suspend his alimony obligation; and (3) granted plaintiff Catherine
J. Scott's cross-motion to enter judgment against defendant to enforce his
arrears. Defendant also appeals from a July 16, 2019 Family Part order that: (1)
granted plaintiff's motion to satisfy the judgment entered against defendant
through a Qualified Domestic Relations Order (QDRO) imposed against
defendant's annuity fund and pension fund; (2) awarded plaintiff attorney's fees
and costs in the amount of $2252.50, enforceable through a QDRO against
defendant's annuity fund and pension fund. We affirm.
We derive the following pertinent facts from the record. The parties were
married on June 13, 1997 and had two children. Plaintiff filed a complaint for
divorce from bed and board on November 13, 2013. Prior to filing the
complaint, plaintiff's counsel sent a proposed PSA to defendant in an attempt to
resolve the matter. Defendant requested a meeting to discuss the proposed PSA.
The proposed PSA included a $325 per week permanent alimony award
and $25,000 for plaintiff's share of the equity in the marital home. Defendant
proposed reducing the alimony to term alimony of $300 per week for fifteen
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years and reducing plaintiff's share of the equity in the marital home to $20,000.
Plaintiff advised she would agree to those changes provided the term alimony
would be non-modifiable.
Plaintiff's counsel sent the modified proposed PSA to defendant on
November 21, 2013. No further modifications were made to the proposed PSA.
Almost three months later, the parties executed the PSA on February 14, 2014.
Although defendant remained unrepresented by counsel during the negotiations,
he hired an attorney to review the final version of the PSA before signing it.
Under the terms of the PSA, defendant agreed that plaintiff would receive:
(a) alimony in the sum of $300 per week for 15 years; (b) fifty percent of
defendant's pension plan; (c) sixty-two percent of defendant's annuity fund
purportedly valued at $230,036 but actually valued at approximately $300,000
at the time of rollover; and (d) medical insurance coverage under defendant's
policy.
In addition, plaintiff agreed to waive her interest in the marital home. The
parties "agree[d] and acknowledge[d] that the value of the property and attached
land [was] approximately $168,000.00" and that the aggregate balance of the
first and second mortgage was approximately $118,000. The PSA confirmed
that plaintiff agreed to convey all right, title, claim, or interest in the property in
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exchange for distribution of "an additional twelve (12%) percent of [defendant's]
Pointers Local 13 Annuity."
Notably, the PSA reveals that, prior to the settlement, the parties heavily
disputed defendant's "obligation to pay alimony both as to the amount and
duration." However, the PSA explains that "[i]n consideration of the terms and
provisions of the agreement, [plaintiff] has agreed to accept and [defendant] has
agreed to pay irrevocable and non-modifiable limited duration alimony." The
PSA specifically provided that, "[not]withstanding any language contained in
Lepis v. Lepis 1 or Crews v. Crews,2 the alimony paid should be non-modifiable
and that this provision is irrevocable even if" defendant experienced "dramatic
and substantial changes in income of whatever nature, scope or duration." The
PSA further provided that the alimony is non-modifiable even in the event of
"[a]ny illness or condition developed by the [plaintiff] or [defendant] at any
time." The PSA then reiterates that:
G. Specifically, both [plaintiff] and [defendant] waive
any rights they may have under the Lepis and/or Crews
decision to later argue that subsequent changes or
circumstances render the alimony waiver at the end of
the term or the alimony non-modifiability during the
term either unfair or inequitable. Each party
1
Lepis v. Lepis, 83 N.J. 139 (1980).
2
Crews v. Crews, 164 N.J. 11 (2000).
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acknowledges having been advised by their counsel of
their Lepis and/or Crews changed circumstance
standard and further acknowledge that they have been
supplied with a copy of the decision and fully
understand the rights they are waiving. [Defendant]
shall not have the right to modify his alimony
obligation based on further beneficial financial changes
on the part of [plaintiff] including but not limited to her
earned or unearned income.
H. It is [the] specific agreement of the parties to
introduce concepts of collateral estoppel into this
agreement to prevent [plaintiff] and [defendant from]
seeking modification of the alimony during or at the
end of the term without which [defendant] and
[plaintiff] would not have agreed to obligate themselves
to make the economic adjustments made hereunder.
Defendant did not file an answer to the complaint. Default was entered
against him. On March 11, 2014, a final judgment of divorce from bed and
board was entered on the ground of irreconcilable differences. The judgment
incorporated the terms of the PSA. An August 4, 2014 QDRO that provided for
distribution of fifty percent of defendant's pension fund to plaintiff was entered
by consent.
In September 2017, defendant moved to convert the judgment to a final
judgment of divorce (FJOD). On November 17, 2017, the trial court granted the
motion. Defendant's request for an award of counsel fees was denied.
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In April 2018, defendant moved to reduce alimony, claiming he suffered
a substantial reduction in income as a result of injuries sustained in a motor
vehicle accident on April 10, 2018. Defendant certified that he was unable to
work and receiving treatment at Cooper University Hospital Trauma Center.
Defendant's certification did not set forth the nature or extent of his injuries.
Nor did he provide competent medical evidence regarding any resulting
disability from employment. Plaintiff opposed the motion and cross-moved for
an award of counsel and costs totaling $1500.
On June 14, 2018, the court issued an order and written statement of
reasons denying defendant's motion to reduce alimony and plaintiff's cross -
motion for counsel fees. The court noted that defendant 3 "failed to provide a
current case information statement" (CIS), in violation of Rule 5:5-4(a). It
further noted that defendant failed to provide "documentation regarding his
claim that he is now disabled and unable to pay his alimony obligation." The
court concluded that defendant did not make a prima facie showing of changed
circumstances. As to his allegation that he is now earning significantly less
income due to disability resulting from the accident, the court noted that
3
At several points in its statement of reasons, the trial court mistakenly referred
to defendant as plaintiff.
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defendant "did not provide a police report, an accident report, an injury
diagnosis, a doctor's report, nor any proofs concerning his disability." As a
result of these findings, the court did not reach the issue of non-modifiability of
defendant's alimony obligation. Defendant did not appeal from that ruling.
As to plaintiff's counsel fee application, the court found "[d]efendant did
not exercise bad faith" in moving for an alimony reduction. The court also found
"that both parties [were] able to pay their own counsel fees" but noted defendant
was unrepresented. The court noted that defendant earned $61,000 in 2017. The
court declined to award counsel fees to plaintiff as a sanction against defendant.
On April 4, 2019, plaintiff moved to: (1) enter judgment against defendant
for alimony arrears in the sum of $16,399; (2) an order allowing for payment of
the judgment and future alimony payments from defendant's annuity and pension
plans; and (3) an award of counsel fees and costs in the sum of $1355. The
attorney's fees were billed at the rate of $290 per hour. Defendant cross-moved
to reduce and suspend alimony.
Plaintiff's supporting certification noted that the PSA obligated defendant
to pay her term alimony of $300 per week for fifteen years. Plaintiff averred
that defendant owed her alimony arrears of $16,399 as of March 25, 2019.
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Defendant's certification confirmed that he met with an attorney to review
the proposed PSA. The attorney told defendant "that she thought the agreement
was fair and suggested that [he] sign it." Defendant noted, however, that the
attorney did not review any CISs or otherwise inquire about either party's
financial circumstances or review the proposed equitable distribution.
Defendant certified that the attorney he consulted "did not explain my rights
under Lepis v. Lepis, or that the agreement contained an anti-Lepis clause, or
the significance of this clause." Defendant certified that despite language in the
PSA to the contrary, he was not advised of the Lepis or Crews decisions and
"did not understand that [he] was waiving [his] rights under those decisions."
Defendant stated that he stopped attending high school after the tenth grade and
did not obtain a GED. He contended he did not understand his rights under
Lepis or knowingly waive them. He claimed the PSA was not the product of
negotiation.
Defendant claimed the PSA "was one-sided in favor of plaintiff."
Defendant noted that the attorney he consulted to review the proposed PSA was
not involved in any negotiations. He further noted that he did not attend the
final hearing for entry of the judgment from bed and board.
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As to his reduced income level, defendant stated he was earning
approximately $70,000 as a brick layer when the PSA was executed. In February
2018, he filed a claim for unemployment benefits because he "was between
projects." In April 2018, he "was involved in a serious accident and [had] not
worked since." Although his unemployment benefits were extended after the
accident, the $14,586 in maximum benefits was exhausted. Sixty percent of the
benefits were allocated to plaintiff towards alimony. Defendant also received
$400 per week in disability benefits under his auto insurance policy. Of that
amount, defendant paid $260 per week to plaintiff, leaving him only $140 per
week.
Defendant asserted that his home was in foreclosure, but a mortgage
modification was conditionally approved. He claimed he was unable to afford
internet service or cable television, wore clothing donated by his church, and
received food from a local food pantry.
The court issued a June 21, 2019 order granting plaintiff's motion to enter
judgment against defendant for the alimony arrears. It denied defendant's cross-
motion to reduce or suspend his alimony obligation and to vacate the PSA. The
court reserved on the issues of enforcing the judgment against defendant's
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annuity or pension plans and plaintiff's counsel fee request. It afforded
defendant an opportunity to submit an alternative way to satisfy the judgment.
The court defendant's request to vacate the agreement because defendant
failed to produce sufficient evidence that he did not understand the terms of the
PSA or that he could not, with reasonable diligence, have understood them. The
court found that defendant had an attorney review the proposed PSA. It further
found that the proposed PSA "was negotiated and changed."
The court found the agreement was neither "egregiously one-sided [n]or
unfair based on the circumstances." It further found that defendant entered into
the PSA freely and voluntarily.
Next, the court addressed the anti-Lepis clause. The court found it "ha[d]
no choice . . . but to enforce the agreement that the parties" made. It noted that
"parties can incorporate an anti-Lepis clause into a property settlement
agreement but must do so with full knowledge of all present and reasonably
for[e]seeable future circumstances."
The court found that the PSA specifically detailed such circumstances,
one of which defendant based his application on. It noted the anti-Lepis clause
was almost two pages long and listed several events that would not allow for
alimony modification.
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Relying on Morris v. Morris, 263 N.J. Super. 237 (App. Div. 1993), the
court found that the PSA contained a clear provision prohibiting alimony
modifications despite enumerated changed circumstances. The court further
found "there was consideration given" for the anti-Lepis clause. The court held
defendant responsible for learning the impact of the anti-Lepis clause before
signing the PSA and that plaintiff's counsel had no duty to explain the meaning
of the clause.
Lastly, the court explained that Morris allows for alimony modification in
extreme cases; however, the court found that defendant failed to provide any
evidence of an extreme medical condition that rendered the agreement
inequitable. The court noted that none of the reports submitted by defendant
"indicated by a reasonable degree of medical certainty that [defendant was]
unable to perform the duties that he performed."
The court granted plaintiff's application to enforce the alimony arrears for
the same reasons it denied defendant's application to reduce, suspend, or vacate
the alimony provision. As to plaintiff's request for the judgment to be satisfied
through defendant's annuity plan or pension, the court reserved to conduct
further research and to allow the parties time to brief the issue.
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On July 16, 2019, the court granted plaintiff's request to enforce the
judgment through a QDRO directed at defendant's annuity and pension fund
plans. In an accompanying memorandum of decision, the court relied on our
decision in Orlowski v. Orlowski, 459 N.J. Super. 95 (App. Div. 2019). The
court reiterated that defendant's application was not supported by any financial
information as required by court rules. Since the FJOD required defendant to
pay plaintiff $300 per week in alimony and defendant had failed to pay alimony
for approximately fifty-eight weeks, the court found that defendant owed
plaintiff $17,600.93 in alimony. The court rejected defendant's alternative
payment method of satisfying the arrears at the rate of $100 per week. The court
concluded that permitting plaintiff to invade defendant's retirement accounts by
way of QDRO would be the only way to satisfy the alimony arrears given
defendant's lack of income and assets.
In addition, the court awarded plaintiff counsel fees and costs of $2252.50,
also to be paid by way of QDRO imposed on defendant's retirement accounts.
As to the reasonableness of the attorney's fees, the court reviewed the
certification submitted by plaintiff's counsel, and it found that "the hourly rate
charged by plaintiff's attorney [was] reasonable and commensurate with
attorneys [of] similar experience in Atlantic County, N.J." The court found the
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4.25 hours expended by counsel was "extremely reasonable," as was the
resulting fee request of $2102.50 and $50 filing fee. The court further found
that "[d]efendant's income ability [was] sufficient to pay counsel fees. Plaintiff
should not be burdened with counsel fees spent for enforcement purposes. " It
concluded that the counsel fees incurred "for the successful enforcement of an
alimony obligation" should be awarded and "paid from defendant's portion of
his qualified retirement plans." This appeal followed.
Defendant raises the following points for our consideration:
POINT I.
THE PARTIES' PROPERTY SETTLEMENT
AGREEMENT IS UNENFORCEABLE AS
APPELLANT DID NOT UNDERSTAND THE ANTI-
LEPIS PROVISION OF THE AGREEMENT, DID
NOT KNOWINGLY WAIVE HIS RIGHT TO
MODIFY ALIMONY, AND AS THE PARTIES DID
NOT CONTEMPLATE THE UNFOR[E]SEEABLE
AND EXTREME CIRCUMSTANCES OF AN
AUTOMOBILE ACCIDENT THAT WOULD
RENDER THE DEFENDANT INCAPABLE OF
WORKING.
POINT II.
DEFENDANT IS ENTITLED TO A REDUCTION OR
SUSPENSION OF ALIMONY IN LIGHT OF THE
CHANGED CIRCUMSTANCES OF BOTH PARTIES.
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POINT III.
THE TRIAL COURT ERRED IN GRANTING
JUDGMENT TO SATISFY ALIMONY ARREARS IN
FAVOR OF THE PLAINTIFF AND AGAINST THE
DEFENDANT.
POINT IV.
THE TRIAL COURT ERRED IN AWARDING
ATTORNEY'S FEES TO THE PLAINTIFF.
POINT V.
THE TRIAL COURT ERRED IN ORDERING THE
SATISFACTION OF ALIMONY ARREARS AND
ATTORNEY'S FEES VIA A QDRO.
Appellate review of Family Part orders is generally limited. Cesare v.
Cesare, 154 N.J. 394, 411 (1998). We afford considerable deference to the
discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J.
Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J. Super. 17,
21 (App. Div. 2006)). The Appellate Division "accord[s] particular deference
to the Family Part because of its 'special jurisdiction and expertise' in family
matters." Harte v. Hand, 433 N.J. Super. 457, 461 (App. Div. 2013) (quoting
Cesare, 154 N.J. at 413).
Generally, "findings by the trial court are binding on appeal when
supported by adequate, substantial, credible evidence." Cesare, 154 N.J. at 411-
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12 (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484
(1974)). The reviewing court will not disturb the factual findings and legal
conclusions of the trial court unless convinced they are "so manifestly
unsupported by or inconsistent with the competent, relevant and reasonably
credible evidence as to offend the interests of justice." Ricci v. Ricci, 448 N.J.
Super. 546, 564 (App. Div. 2017) (quoting Elrom v. Elrom, 439 N.J. Super. 424,
433 (App. Div. 2015)). Challenges to legal conclusions, as well as a trial court's
interpretation of the law, are subject to de novo review. Id. at 565.
We affirm the trial court's orders substantially for the reasons expressed
in its June 21, 2019 oral decision and July 16, 2019 memorandum of decision.
We add the following comments.
Based on our careful review of the record, we discern no abuse of
discretion warranting our intervention. Substantial, credible evidence in the
record supports the trial court's decisions, and we are satisfied there was no
denial of justice under the law.
Defendant argues that the PSA is unenforceable because he did not
understand the PSA given his limited education level. He claims that "[t]he trial
court's findings were not supported by adequate, substantial, credible evidence "
because the court reached its conclusion "[w]ithout taking testimony from the
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defendant," without questioning defendant about his comprehension ability, and
without holding "a plenary hearing . . . to ascertain facts relevant to the
defendant's claims." Defendant further asserts that he was "not meaningfully
represented throughout the PSA negotiations and divorce process." We are
unpersuaded.
Consistent with New Jersey's "'strong public policy favoring stability of
arrangements' in matrimonial matters," courts will not "unnecessarily or lightly
disturb" a PSA where matters in dispute in a post-judgment matrimonial motion
are addressed in a fair and equitable agreement. Quinn v. Quinn, 225 N.J. 34,
44 (2016) (quoting Konzelman v. Konzelman, 158 N.J. 185, 193-94 (1999)) see
also Dolce v. Dolce, 383 N.J. Super. 11, 20 (App. Div. 2006) (explaining that
PSAs are entitled to "considerable weight with respect to their validity and
enforceability" when they are fair and just).
Nevertheless, courts have the authority to modify a PSA agreement
because of unconscionability, misrepresentation, or fraud. Addesa v. Addesa,
392 N.J. Super. 58, 66 (App. Div. 2007). An application to modify a property
settlement agreement may be made pursuant to Rule 4:50-1(f). Connor v.
Connor, 254 N.J. Super. 591, 601 (App. Div. 1992). To meet the stringent
requirements of Rule 4:50-1(f), the moving party must make a "showing of
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fraud, misconduct or mistake in the negotiations or a showing of fundamental
inequity or unfairness in the agreement." Ibid. Thus, the party challenging the
agreement bears the burden of demonstrating that the agreement is unfair and
inequitable. Guglielmo v. Guglielmo, 253 N.J. Super. 531, 541 (App. Div.
1992).
We first note that the language of the anti-Lepis clause was clear and
unambiguous. It plainly set forth that subsequent loss of income or change in
medical condition was not a basis to modify the term alimony. Its meaning was
not shrouded in obscure legal terminology. It was easily understandable by a
lay person. The court had no obligation, in this present case, to reform the PSA
when the intent of the parties was clear. Quinn, 225 N.J. at 45.
Defendant sought, in part, to vacate the PSA. To that extent, his
application is untimely. A moving party seeking to vacate a PSA incorporated
in a judgment must file their motion "within a reasonable time, and for the
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. 4:50-2. Here, the PSA
was incorporated into the final judgment from bed and board on March 11, 2014.
Defendant filed his cross-motion on June 3, 2019, more than five years later. To
the extent that defendant bases his motion on "mistake, inadvertence, surprise,
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or excusable neglect" under Rule 4:50-1(a), his motion is clearly time-barred.
Ibid. To the extent defendant claims the PSA "is no longer equitable" or "for
any other reason justifying relief," Rule 4:50-1, his motion is still time-barred
as it was not filed "within a reasonable time," Rule 4:50-2. For this additional
reason, defendant's application to vacate the alimony provision of the PSA was
properly denied.
Moreover, defendant did not make out a prima facie case that the alimony
provision was unfair or inequitable when agreed upon. Nor did he establish that
the PSA was "achieved through coercion, deception, fraud, undue pressure, or
unseemly conduct." Peskin v. Peskin, 271 N.J. Super. 261, 276 (App. Div.
1994). On the contrary, plaintiff's original proposal for $325 per week
permanent alimony award was reduced through negotiation to term alimony of
$300 per week for fifteen years. And, as noted by the trial court, defendant
received consideration for the term alimony provision.
Although defendant only completed the tenth grade, he has he shown that
he was incapable of reasonable diligence by hiring counsel to represent him in
the negotiation of the PSA or the divorce action in general.
Defendant argues that he is entitled to a reduction or suspension of
alimony because of the changed circumstances of both parties. Specifically,
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defendant claims that at least three of the circumstances recognized under Lepis
warrant modification in this case, such as a decrease in the supporting spouse 's
income, illness arising after the original judgment, and subsequent employment
of the dependent spouse.
The decision to modify an alimony obligation "based upon a claim of
changed circumstances rests within a Family Part judge's sound discretion."
Larbig, 384 N.J. Super. at 21. An alimony determination will not be overturned
on appeal absent an abuse of discretion. Rolnick v. Rolnick, 262 N.J. Super.
343, 360 (App. Div. 1993). "[E]very motion to modify an alimony obligation
'rests upon its own particular footing and the appellate court must give due
recognition to the wide discretion which our law rightly affords to the trial
judges who deal with these matters.'" Donnelly, 405 N.J. Super. at 127 (quoting
Larbig, 384 N.J. Super. at 21).
Aside from the import of the anti-Lepis clause, the trial court correctly
found that defendant's moving papers were deficient. Noticeably absent from
defendant's submissions is any competent proof that he is permanently disabled
from employment. 4 Indeed, his application does not even describe the nature
4
Defendant submitted a series of letters by physicians indicating he was
temporarily unable to return to work due to orthopedic or cardiac issues, none
of those submissions indicated he was permanently disabled from employment.
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and extent of his injuries sustained in the accident and their impact on his ability
to work as a bricklayer or in other capacities.
Defendant did not demonstrate he is permanently disabled from
employment. A temporary reduction in income is not a basis for reducing
support. Innes v. Innes, 117 N.J. 496, 504 (1990) (citing Bonanno v. Bonanno,
4 N.J. 268, 275 (1950)). For this additional reason, defendant did not make out
a prima facie case of changed circumstances.
We next address defendant's arguments that the trial court erred by
entering a judgment and QDRO to enforce and satisfy defendant's alimony
arrears. Defendant's argument that enforcing the alimony arrears through a
judgment was improper is meritless. R. 2:11-3(e)(1)(E). Accordingly, we will
focus on granting enforcement through a QDRO.
A QDRO is a domestic relations order that "creates or recognizes the
existence of an alternative payee's right to, or assigns to an alternat e payee the
right to, receive all or a portion of the benefits payable with respect to a
participant under a plan." 29 U.S.C. § 1056(d)(3)(B); see also 26 U.S.C. §
414(p)(1). "Alternate payee" is defined as "any spouse, former spouse, child, or
other dependent of a participant who is recognized by a domestic relations order
as having a right to receive all, or a portion of, the benefits payable under a plan
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with respect to such participant." 29 U.S.C. § 1056(d)(3)(K); see also 26 U.S.C.
§ 414(p)(8).
In Orlowski, we held that a court may compel reimbursement of college
tuition, expert witness fees, and counsel fees through a QDRO against the
husband's annuity account, which was governed by the Employee Retirement
Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001 to 1461, when the ex-
spouse is the alternative payee of the QDRO. 459 N.J. Super. at 99.
Marital decrees that do not meet the statutory definition of a QDRO are
preempted by ERISA. Id. at 105 (citing Ross v. Ross, 308 N.J. Super. 132, 150
(App. Div. 1998)). When a marital decree qualifies as a QDRO, however, "it is
'exempt from ERISA's preemption provision.'" Id. at 105 (quoting Hawxhurst
v. Hawxhurst, 318 N.J. Super. 72, 84 n.1 (App. Div. 1998)). The QDRO ordered
by the court met that requirement. With respect to attorney's fees, however,
"QDROs should be utilized to enforce counsel . . . fee awards only when other
assets sufficient to satisfy the awards either do not exist or have been made
unavailable by the obligor." Id. at 108.
Here, the court afforded defendant ample opportunity to propose a
reasonable method of satisfying his significant, longstanding alimony
arrearages. While claiming he had no income, he proposed repayment at $100
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per week. The court rejected that proposal. At that rate, it would take well more
than three years to satisfy the arrears that totaled $17,600.93. Instead, the court
reasonably concluded that permitting plaintiff to invade defendant's retirement
accounts by way of QDRO would be the only way to satisfy the alimony arrears
and counsel fees and costs given defendant's alleged lack of income or other
assets. We discern no error or abuse of discretion.
Lastly, we address the counsel fees and costs awarded to plaintiff.
Defendant argues that the trial court abused its discretion in awarding attorney's
fees to the plaintiff because it misapplied the factors enumerated under Rule 5:3-
5(c). Specifically, defendant claims that the court's finding that defendant had
sufficient income to pay for attorney's fees was inconsistent with the record.
Counsel fee determinations rest within the trial judge's sound discretion.
Williams v. Williams, 59 N.J. 229, 233 (1971). We will disturb a trial court's
determination on counsel fees "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)).
An "abuse of discretion only arises on demonstration of 'manifest error or
injustice,'" Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres,
183 N.J. 554, 572 (2005)), and occurs when the trial judge's decision is "made
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without a rational 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 Cnty. Prosecutor, 171 N.J. 561,
571 (2002)).
"A lawyer's fee must be reasonable." Giarusso v. Giarusso, 455 N.J.
Super. 42, 50 (App. Div. 2018) (quoting Rosenberg v. Rosenberg, 286 N.J.
Super. 58, 69 (App. Div. 1995)). Determining the reasonableness of the fee
involves determining the number of hours reasonably expended multiplied by a
reasonable hourly rate. Id. at 51 (citing Rendine, 141 N.J. at 334-35).
"Compiling raw totals of hours spent, however, does not complete the inquiry.
It does not follow that the amount of time actually expended is the amount of
time reasonably expended." Ibid. (quoting Rendine, 141 N.J. at 334-35).
Here, the court properly determined the reasonableness of the attorney's
fee because it considered the number of hours reasonably expended multiplied
by a reasonable hourly rate. Giarusso, 455 N.J. Super. at 50. The court noted
that it reviewed the certification submitted by plaintiff's counsel and found that
the number "of hours spent" was "extremely reasonable" and "the hourly rate
charged by plaintiff's attorney [was] reasonable and commensurate with
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attorneys [of] similar experience in Atlantic County." The record fully supports
those findings.
The court also correctly noted that the counsel fees were incurred to
enforce the PSA incorporated into the judgment. See R. 5:3-5(c)(8). Rule 1:10-
3 provides that a "court in its discretion may" award attorney's fees "to a party
accorded relief under this rule" as one of the remedies for enforcement of
litigant's rights. See also R. 5:3-5(c)(8). The rule "recognizes that as a matter
of fundamental fairness, a party who willfully fails to comply with an order or
judgment entitling his adversary to litigant's rights is properly chargeable with
his adversary's enforcement expenses." Pressler & Verniero, Current N.J. Court
Rules, cmt. 4.4.5 on R. 1:10-3 (2021). Awarding plaintiff modest counsel fees
and costs to enforce the PSA was appropriate under the circumstances.
To the extent we have not specifically addressed any of defendant's
remaining arguments, we conclude they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-5232-18T3
24
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