ALEXANDREA REZNIK v. EDUARD REZNIK

NOT FOR PUBLICATION WITHOUT THE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-0096-20

ALEXANDREA REZNIK,

          Plaintiff-Appellant,

v.

EDUARD REZNIK,

          Defendant-Respondent.


                   Submitted December 2, 2021 – Decided December 13, 2021

                   Before Judges Haas and Mawla.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Bergen County,
                   Docket No. FM-02-0506-19.

                   Herbert & Weiss, LLP, attorneys for appellant (Helene
                   C. Herbert, on the briefs).

                   Shapiro, Croland, Reiser, Apfel & DiLorio, LLP,
                   attorneys for respondent (Megan Hodes, on the brief).

PER CURIAM
      Plaintiff Alexandrea Reznik appeals from a May 14, 2020 order granting

defendant Eduard Reznik's motion enforcing the parties' Marital Settlement

Agreement (MSA). She also challenges a July 27, 2020 order denying her

motion for reconsideration. We affirm in part and remand in part.

      In August 2019, the parties signed the MSA, which required plaintiff to

pay defendant $8,000 for his one-half interest in their vehicle, and $6,000 for

funds she withdrew pendente lite from the parties' bank account. The MSA also

memorialized the fact defendant incurred a $4,243 increased tax liability as a

result of plaintiff filing a separate tax return and required plaintiff to execute a

joint 2018 tax return. Once the parties filed the joint return, defendant would

indemnify plaintiff against any tax liability.

      The MSA addressed support for the parties' child but did not contain their

incomes or the amount because they were unable agree on those points.

However, the MSA stated: the parties would utilize the child support guidelines

to calculate support; acknowledged the child would be enrolled in fulltime

daycare at a cost of $1,499 per month; that a work-related childcare figure of

$18,000 per year would be included in the guideline calculation; and that child

support would be modified once defendant began exercising overnight parenting

time. It also stated defendant would resume paying child support on September


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1, 2019, because child support prior to that date was offset by plaintiff's $14,000

debt to defendant.

      The MSA also addressed counsel fees and noted plaintiff owed defendant

$527 associated with fees incurred when neither plaintiff nor her counsel

appeared for an intensive settlement conference. The parties also agreed if either

of them had to file a motion to enforce the MSA, the defaulting party would pay

the prevailing party's counsel fees.

      In October 2019, the parties entered a consent order granting defendant

one overnight of parenting time per week at his New York City residence until

November 20, 2019. The parties agreed parenting time would increase to two

overnights per week thereafter.

      In March 2020, defendant filed a motion to establish a parenting schedule,

including allocating driving responsibility between the parties , and set child

support. The motion also sought enforcement of the MSA, by requiring plaintiff

to pay him $4,243 for failing to amend her 2018 tax return and pay the $527 in

past due counsel fees. Defendant also sought fees for the motion.

      Plaintiff cross-moved for enforcement, arguing defendant failed to

contribute to the daycare expenses.         Her certification attached a daycare

statement showing a cost of $346 per week, less an employee discount of $51.90.


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She also requested the parties communicate through Our Family Wizard (OFW),

recalculate child support retroactive to September 1, 2019, and make it payable

through probation.

      In her opposition, plaintiff claimed she "offered to pay [defendant] what

[she] could and he flat out refused." She also claimed she was financially unable

to pay the $527 owed in counsel fees but could afford to pay twenty-five dollars

per month. Regarding the 2018 tax return, she claimed she amended her tax

return, returned her refund, signed the second amended tax return, and sent it to

her attorney. Plaintiff argued she should not have to bear the financial burden

of driving to New York City because it was defendant's choice to move .

      Defendant's reply certification noted the parties' agreement to offset his

child support obligation by the debt plaintiff owed him. In opposition to the

cross-motion, he argued the request to use OFW should be denied because the

parties could not afford it. Defendant's counsel filed a certification of services

noting the fees associated with the motion totaled $8,987.50.

      At oral argument, plaintiff's counsel conceded plaintiff still owed $527 in

counsel fees to defendant. Counsel also conceded child support was to be offset

by funds plaintiff owed defendant, and that plaintiff had not paid the debt. The

judge adjourned the case to afford the parties an opportunity to settle but they


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could not resolve the parenting time and transportation, the income and daycare

expense to calculate child support, and the tax liability.

      The matter was re-argued. Plaintiff's counsel asserted her client amended

her tax return and signed the joint return, which plaintiff forwarded to her former

counsel, but the attorney did not forward the return to defendant's counsel.

Defendant's counsel argued she also emailed the amended returns to plaintiff's

current counsel, but plaintiff's counsel maintained she never received the email.

Defendant's counsel pointed out plaintiff had ten months to provide defendant

with her amended return, failed to do so, and should pay the tax liability incurred

as a result. After oral argument, the motion judge requested defendant's counsel

forward the email between counsel regarding the tax return. Plaintiff's counsel

objected because the email contained settlement discussions. The judge stated

he would not look at the settlement proposals and only focus on the tax returns.

      On May 14, 2020, the judge entered an order adjudicating custody and

parenting time.    He ordered plaintiff to transport the child to and from

defendant's New York residence one weekend per month and ordered the parties

to meet at a mutually agreeable location in Fort Lee to exchange the child for

the following two consecutive weekends of defendant's parenting time.




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      The judge ordered defendant to pay $206 per week in child support

pursuant to the guidelines effective June 1, 2020.       Based on the evidence

submitted, the judge concluded the parties had an equal earning capacity of

$40,000 per year. The judge found the evidence did not support the $18,000

figure for work-related childcare set forth in the MSA, and the amount was

"significantly less as plaintiff receives an employee discount for the childcare."

The judge also noted the childcare expense would be less because "defendant

will be exercising holiday and summer parenting time with the child . . . ."

      The judge found plaintiff in violation of the MSA because she failed to

pay defendant the $14,000 and the $527 in counsel fees. He also found plaintiff

owed defendant $4,243 because she caused his tax liability to increase by failing

to amend her tax returns as required by the MSA. The judge offset plaintiff's

debt against the child support obligation from June 1, 2019, through May 31,

2020, leaving plaintiff a balance of $7,234, which he ordered plaintiff to pay at

a rate of $275 per month beginning June 1, 2020.

      The judge awarded defendant counsel fees. Analyzing the Rule 5:3-5(c)

factors, he found the parties' financial circumstances and ability to pay were "on

par with each other." He further found while plaintiff violated the terms of the

MSA, both parties had reasonable arguments in contesting parenting time, which


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required the court's intervention. However, he concluded "[o]n balance . . . it is

reasonable, equitable, and just that defendant shall be entitled to an attorney fee

award of $2,750[]."

      Plaintiff moved for reconsideration. She argued the judge should not have

found her in violation of the MSA. She repeated her arguments regarding the

parenting time issues and asserted the child support calculation was wrong

because the court should have required an updated Case Information Statement

(CIS) from defendant because his total income was unknown. She argued the

judge was required to use the agreed upon $18,000 figure for daycare costs in

the child support calculation. She asserted child support should have been

retroactive to September 1, 2019, and payable through probation.

      Plaintiff argued she did not have the financial ability to pay defendant

counsel fees or $275 per month. She asserted she should not have to pay his tax

liability because the parties had three years to file an amended return. She

claimed the judge should not have considered counsel's email regarding the tax

filing because they contained settlement discussions.

      Defendant opposed plaintiff's motion and provided the court with an

updated CIS showing his sole source of income was a $40,154 stipend. He also

provided an investment account statement showing a balance of $0.72.


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       At oral argument, plaintiff's counsel advised plaintiff arranged to pay the

$527 outstanding counsel fees and signed the amended joint returns. Counsel

argued the payment of child support through probation and utilizing OFW were

not addressed in the prior proceedings. In response, defendant's counsel argued

OFW was an unnecessary expense and would be another communication method

for plaintiff to ignore. Counsel argued there was good cause to continue direct

child support payments because defendant had not missed any payments.

       The judge denied the motion concluding plaintiff had not met her burden

of proof to warrant reconsideration. The judge found OFW was unnecessary

because it was an additional expense the parties could not bear on a limited

income.    He also concluded there was good cause to permit child support

payments outside of probation.

       On appeal, plaintiff challenges the child support award arguing defendant

did not disclose all sources of his income and assets and the judge ignored the

childcare expense figure in the MSA. She asserts the judge also ignored the

MSA's terms regarding the tax liability by assigning the liability to her and

improperly considered an email containing the parties' settlement discussions .

Citing Acorn v. Fair,1 she argues the judge lacked good cause to deny her request


1
     208 N.J. Super. 521 (App. Div. 1986).
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for payment through probation. She also argues the judge improperly offset

defendant's obligation by not awarding child support retroactively.           She

contends the failure to order the use of OFW, require defendant to contribute to

the transportation for all his parenting time, and the counsel fee award

constituted an abuse of discretion.

                                        I.

      "We review the Family Part judge's findings in accordance with a

deferential standard of review, recognizing the court's 'special jurisdiction and

expertise in family matters.'" Thieme v. Aucoin-Thieme,  227 N.J. 269, 282-83

(2016) (quoting Cesare v. Cesare,  154 N.J. 394, 413 (1998)). We interfere

"[o]nly when the trial court's conclusions are so 'clearly mistaken' or 'wide of

the mark'" to "ensure that there is not a denial of justice." N.J. Div. of Youth &

Fam. Servs. v. E.P.,  196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Fam.

Servs. v. G.L.,  191 N.J. 596, 605 (2007)). Likewise, we review the denial of a

motion for reconsideration for an abuse of discretion. Cummings v. Bahr,  295 N.J. Super. 374, 389 (App. Div. 1996). However, "we owe no deference to the

[trial] judge's decision on an issue of law or the legal consequences that flow

from established facts." Dever v. Howell,  456 N.J. Super. 300, 309 (App. Div.




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2018) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,  140 N.J.
 366, 378 (1995)).

                                        II.

      We reject plaintiff's arguments challenging the calculation and payment

of child support and affirm substantially for the reasons expressed by the motion

judge. We add the following comments.

      "The trial court has substantial discretion in making a child support

award." Foust v. Glaser,  340 N.J. Super. 312, 315 (App. Div. 2001) (citing

Pascale v. Pascale,  140 N.J. 583, 594 (1995)). "If consistent with the law, such

an award will not be disturbed unless it is manifestly unreasonable, arbitrary, or

clearly contrary to reason or to other evidence, or the result of whim or caprice."

Id. at 315-16 (quoting Raynor v. Raynor,  319 N.J. Super. 591, 605 (App. Div.

1999)) (internal quotations omitted).

      Having thoroughly reviewed the record, we are convinced it does not

support plaintiff's claim child support was calculated without full financial

disclosures. The judge had the parties' income information, tax returns, bank

and investment account statements, and defendant's CIS. Furthermore, the

income utilized for the guideline calculation was derived from plaintiff's paystub

and confirmed by her attorney, and defendant's income was based on the stipend,


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his sole source of income. Plaintiff has not pointed us to any evidence defendant

either withheld or misrepresented.

      The judge did not err in eschewing the daycare expense in the MSA and

utilizing the actual daycare expense incurred. The guidelines state: "The net

cost (after tax credits) of work-related child care should be added to the basic

obligation if incurred." Child Support Guidelines, Pressler & Verniero, Current

N.J. Court Rules, Appendix IX-A to R. 5:6A, www.gann.law.com (2021)

(emphasis added). This argument lacks merit. R. 2:11-3(e)(1)(E).

      We reject plaintiff's argument the judge erred by adding her outstanding

obligations to the offset against child support, resulting in child support

becoming payable on June 1, 2020, as opposed to the September 1, 2019 start

date in the MSA. Contrary to plaintiff's arguments, the offset was permissible

because the parties agreed to it in the MSA. Given plaintiff's failure to pay

defendant the sums owed and timely file the joint returns, thereby causing a

liability, the judge's addition of these amounts to the child support offset was

not an abuse of discretion. See In re Rogiers,  396 N.J. Super. 317, 327 (App.

Div. 2007) (holding enforcement and collection of support arrears is left to the

sound discretion of the court).




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      Plaintiff's reliance on Acorn is misplaced. There, the defendant sought to

compel the plaintiff to make child support payments through probation pursuant

to Rule 5:7-4.  208 N.J. Super. at 523. The Rule provides "child support

payments not presently administered by the Probation Division shall be so made

on application of either party to the court unless the other party, on application

to the court, shows good cause to the contrary." R. 5:7-4. We were persuaded

by the defendant's argument that the plaintiff's compliance with the support

order was not good cause to deny payment through probation. Id. at 523. We

held the Rule "intend[ed] that all . . . support payments be made through the

probation office upon the payee's request unless exceptional circumstances

exist, beyond the fact that the payor has substantially complied with the

obligation, which would justify direct payment to the payee." Id. at 524.

      Here, although the judge noted he was denying payment through probation

because defendant had a history of timely child support payments, he also noted

"there is a cross-payment that the plaintiff must make to defendant until she

satisfies her obligation . . . ." The facts differ from Acorn, which did not include

previously agreed upon and court-ordered offsets against child support. For

these reasons, we discern no abuse of discretion in the good cause finding.




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Plaintiff's remaining arguments on appeal lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

                                      III.

      Finally, in our review of the judge's May 14 order in which he concluded

defendant owed plaintiff $7,234 as of June 1, 2019, we note he arrived at the

figure by adding the $14,000, $4,243, and $527, less the $11,536 representing

child support for June 1, 2009 through May 31, 2020, calculated as "[fifty -two]

weeks x $206." However, the child support calculation yields a total of $10,712.

For these reasons, we remand for entry of an order correcting the sum set forth

in paragraph eight of the May 14 order to $8,058 ($14,000 + $4,243 + $527 -

$10,712 = $8,058).

      Affirmed in part and remanded in part. We do not retain jurisdiction.




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