TODD LAPINSON VS. JULIE LYNN LAPINSON (FM-02-2488-16, BERGEN COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-4219-18T3
TODD LAPINSON,
Plaintiff-Respondent,
v.
JULIE LYNN LAPINSON,
Defendant-Appellant.
_________________________
Submitted November 16, 2020 – Decided December 14, 2020
Before Judges Mayer and Susswein.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-2488-16.
Laufer, Dalena, Jensen, Bradley, & Doran, LLC,
attorneys for appellant (Michelle A. Benedek, on the
briefs).
Ziegler, Resnick & Epstein, attorneys for respondent
(Robert A. Epstein, of counsel and on the brief).
PER CURIAM
In this post-judgment matrimonial matter, defendant Julie Lynn Lapinson
appeals from a May 3, 2019 order allocating the marital debt and denying her
cross-motion in its entirety. We affirm.
Defendant and plaintiff Todd Lapinson formally separated in December
2015. During the marriage, defendant stayed home, raising the couple's three
children, born in 2003, 2005, and 2008. Upon separating, defendant remained
in the marital home with the children and plaintiff moved to a townhouse. There
was no support agreement during the time period the parties lived separately but
they continued paying all expenses the same as when the parties lived together.
During the separation period, the parties incurred credit card debt, 401(k) loan
debt, and maintained three personal lines of credit.
Plaintiff filed for divorce on May 13, 2016. The parties signed a marital
settlement agreement (MSA), which was incorporated into a February 2, 2018
dual judgment of divorce (JOD). The MSA addressed issues related to the
dissolution of the marriage, including the children's extracurricular activities
and allocation of the marital debt.
Regarding extracurricular expenses for the children, the parties agreed to
the sum of $210 per month, or $2,520 annually. This amount was included in
the calculation of plaintiff's child support obligation. In the event the
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extracurricular expenses exceeded the specified sum, the parties agreed
defendant would pay thirty-five percent and plaintiff would pay sixty-five
percent. However, the parent incurring the extracurricular expense had to obtain
the other parent's prior written consent or else would be responsible to pay the
entire expense.
The MSA also addressed the marital debt. If the parties were unable to
agree upon the allocation of the marital debt, Paragraph 8.2 of the MSA provided
the parties would retain Marc Koenig, a certified public accountant, to resolve
the issue. Specifically, Koenig was tasked with preparing a report, analyzing
the debt, and determining if the debt was marital or belonged to either plaintiff
or defendant. The party incurring non-marital debt was obligated to pay the
amount of the individually incurred debt in accordance with the MSA.1 In
determining the parties' marital debt, Koenig reviewed defendant's credit cards,2
1
The parties agreed that the debt on the American Express Optima card,
American Express Gold card, Chase Sapphire card, and Discover card, totaling
$109,184, represented marital debt. In addition, the parties agreed the three
forgivable loans that would become due if plaintiff was terminated from his job
prior to the forgiveness period was marital debt, and they would be equally
responsible for the repayment of any loan balances.
2
Defendant had the following credit cards in her name: American Express
Optima, Bank of America Visa, Nordstrom, Neiman Marcus, and
Bloomingdales.
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loans against plaintiff's 401(k) retirement account, and the lines of credit.3
Pending Koenig's report, the MSA required plaintiff to continue paying the
minimum monthly amounts toward the outstanding debt. If the parties were
unable to reach an agreement concerning the marital debt, the MSA provided
Koenig would conduct a mediation to resolve the matter. In the event mediation
was unsuccessful, the MSA stated "either party [could] file for a determination
by the [c]ourt or participate in binding arbitration (if agreed upon by the parties)
. . . ."
Koenig prepared a draft report on September 12, 2018. In preparing his
report, Koenig reviewed documents submitted by the parties. In reviewing the
parties' information, Koenig concluded most of the debt was joint marital debt,
with the exception of defendant's personal credit cards amounting to $24,985
and should be split equally. Based on the documentation, Koenig determined
defendant was responsible to pay $139,803 toward the debt and plaintiff was
responsible to pay $116,818 toward the debt.
Because defendant was dissatisfied with the allocation of the marital debt,
the parties attended mediation with Koenig. The mediation was unsuccessful.
3
The lines of credit included: a Wells Fargo secured line of credit, a Wells
Fargo unsecured line of credit, and a Bank of America personal line of credit.
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As a result, in accordance with the MSA, plaintiff filed a motion to determine
allocation of the marital debt. Defendant filed a cross-motion seeking various
relief, including a request for a plenary hearing regarding allocation of marital
debt.
After hearing the arguments of counsel, the judge rendered an oral
decision, granting plaintiff's motion and denying defendant's cross-motion. In
reviewing the MSA, the judge deemed "Koenig's report . . . dispositive." The
judge explained "[n]othing in the MSA says that [Koenig's report] cannot be
dispositive." He added that defendant "waited six months to file a challenge to
the report and only by way of a cross motion." The judge rejected defendan t's
contention that Koenig's report was just a draft, determining "that's not a
sufficient excuse." The judge approved the marital debt allocation as calculated
by Koenig. The judge also held plaintiff was "to be reimbursed . . . from the
sale of the marital home" for his payment of the debt service.
Regarding defendant's request to enforce payment attorney's fees
previously awarded to defense counsel, the judge noted the award had been
reduced to a judgment. Because the law firm had a judgment, the judge stated
the award should be satisfied from plaintiff's share of the net proceeds associated
with the sale of the marital home. If funds from the sale of the home were
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insufficient to pay the full judgment, the judge concluded the law firm had other
methods to enforce its judgment.
On the issue of defendant's request for reimbursement of the children's
extracurricular activities, the judge noted the MSA required the parties "to agree
to the extracurricular activities and the costs of such that exceeds [the] $2,5 20
annually." He explained the MSA also provided that "if a party registers the
child for an extracurricular activity without the prior written consent of the other
party, then that party shall be responsible for [one hundred] percent." The judge
held defendant had "not shown she . . . satisfied . . . her obligation to pay the
$2,520 in expenses. Furthermore, defendant [did] not itemize or specifically
explain the expenses incurred for the children's extracurricular activities." He
also found defendant failed to "show the plaintiff's written consent for the
children to participate in [the] activities." Thus, the judge denied defendant's
request for reimbursement of the additional extracurricular expenses.
On appeal, defendant argues the judge erred in relying on Koenig's report
to determine the allocation of the marital debt between the parties. In addition,
defendant contends the judge should have granted her request to conduct a
plenary hearing and afford her an opportunity to cross-examine Koenig.
Further, defendant claims the judge erred in failing to enforce the prior order
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awarding her counsel fees and denying her request for reimbursement for the
children's extracurricular expenses. She also asserts she was entitled to an award
of counsel fees related to her cross-motion.
We defer to family court fact findings "when supported by adequate,
substantial, credible evidence." Fattore v. Fattore, 458 N.J. Super. 75, 83 (App.
Div. 2019) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). However,
we are not bound by "[a] trial court's interpretation of the law[,] and the legal
consequences that flow from established facts are not entitled to any special
deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.
366, 378 (1995) (citations omitted). "To the extent that the trial court interprets
the law and the legal consequences that flow from the established facts, we
review its legal conclusions de novo." Motorworld, Inc. v. Benkendorf, 228 N.J.
311, 329 (2017).
"Interpretation and construction of a contract is a matter of law for the
court subject to de novo review." Fastenberg v. Prudential Ins. Co. of Am., 309
N.J. Super. 415, 420 (App. Div. 1998) (citing Bradford v. Kupper Assocs., 283
N.J. Super. 556, 583 (App. Div. 1995)). "The law grants particular leniency to
agreements made in the domestic arena," allowing "judges greater discretion
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when interpreting such agreements." Guglielmo v. Guglielmo, 253 N.J. Super.
531, 542 (App. Div. 1992) (citing N.J.S.A. 2A:34-23).
"Settlement of disputes, including matrimonial disputes, is encouraged
and highly valued in our system." Quinn v. Quinn, 225 N.J. 34, 44 (2016) (citing
Konzelman v. Konzelman, 158 N.J. 185, 193 (1999)). "Marital agreements . . .
are approached with a predisposition in favor of their validity and
enforceability." Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995)
(citing Peterson v. Peterson, 85 N.J. 638, 642 (1981)). Our Supreme Court "has
observed that it is 'shortsighted and unwise for courts to reject out of hand
consensual solutions to vexatious personal matrimonial problems that have been
advanced by the parties themselves.'" Quinn, 225 N.J. at 44 (quoting
Konzelman, 158 N.J. at 193). Consequently, courts will not "unnecessarily or
lightly disturb[]" an MSA that is fair and equitable. Ibid.
Having reviewed the record, we are satisfied the MSA addressed the
parties' express intent regarding the marital debt. The MSA incorporated the
parties' agreement to have Koenig review documents provided to him and
prepare a report based on his evaluation of the information. Because the parties
were unable to resolve the issue of marital debt after receipt of Koenig's report,
they participated in mediation as required by the MSA. When mediation failed,
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the MSA allowed either party to file an application with the trial court seeking
a determination on the allocation of marital debt.
Here, plaintiff filed a motion for the court to resolve the marital debt issue.
The judge considered Koenig's report and the language in the MSA in rendering
his determination on the allocation of the marital debt. The MSA explicitly
provided any joint debt would be "divided equally" and any debt not deemed to
be joint would be the "sole obligation of a party."
Contrary to defendant's argument, a plenary hearing was not required "to
discern the intent of the parties at the time the agreement was entered and to
implement that intent." Quinn, 225 N.J. at 45 (citing Pacifico v. Pacifico, 190
N.J. 258, 267 (2007)). The parties entered into an enforceable agreement that
clearly and unambiguously set forth the procedure for allocation of the marital
debt. Defendant failed to proffer any additional information that should have
been considered by the judge beyond the information provided by the parties in
the motion and cross-motion. To the extent defendant disagreed with Koenig's
report, she waited until plaintiff filed his motion in accordance with the MSA to
voice her objections. 4 Under the circumstances, we discern no abuse of
4
Defendant cites communications with Koenig before and after the mediation
as evidence of her objections to his report. Reference to such communications
is improper and violates mediation confidentiality. R. 1:40-4(d).
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discretion in the judge's consideration of the MSA and Koenig's report in
allocating the parties' marital debt.
We next consider defendant's claim that the judge disregarded N.J.R.E.
808 in admitting Koenig's report because it constituted hearsay and no
exceptions to the hearsay rule applied. N.J.R.E. 808 applies to "[e]xpert opinion
included in a hearsay statement admissible under an exception" and provides:
Expert opinion that is included in an admissible hearsay
statement shall be excluded if the declarant has not been
produced as a witness unless the court finds that the
circumstances involved in rendering the opinion tend to
establish its trustworthiness. Factors to consider
include the motive, duty, and interest of the declarant,
whether litigation was contemplated by the declarant,
the complexity of the subject matter, and the likelihood
of accuracy of the opinion.
Trustworthiness is the overarching principle of N.J.R.E. 808. See N.J.
Div. of Child Prot. & Permanency v. N.T., 445 N.J. Super. 478, 487 (App. Div.
2016). However, "[w]hen objectionable hearsay is admitted in a bench trial
without objection, [it is] presume[d] that the fact-finder appreciates the potential
weakness of such proofs, and takes that into account in weighing the evidence." 5
N.J. Div. of Child Prot. & Permanency v. J.D., 447 N.J. Super. 337, 349 (App.
5
Defendant's counsel initially objected to attachment of Koenig's report in the
motion papers "because it [was] not in evidence, but be that as it may, I referred
to it."
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Div. 2016) (citing In re Civil Commitment of A.X.D., 370 N.J. Super. 198, 202-
03 (App. Div. 2004)). "[T]he trial court may give such evidential weight to
objectionable hearsay that is appropriate under the circumstances," and "an
appellant faces an especially high hurdle in an appeal from a civil bench trial to
establish that the admission of such evidence constitutes 'plain error' . . . that the
evidence was 'clearly capable of producing an unjust result.'" Id. at 349-50.
Here, defendant failed to explain how or why Koenig's report was
untrustworthy. The parties mutually agreed to retain Koenig to conduct a neutral
accounting analysis of the marital debt, signifying their belief that Koenig
lacked any bias or improper motive. Nor did defendant claim Koenig was
impartial or biased. The MSA delineated Koenig's task, specifying his role in
analyzing the parties' finances to resolve the marital debt dispute.
In addition, defendant failed to demonstrate that Koenig's report was
improperly weighed by the judge in reaching his decision. The judge noted there
nothing in the MSA to indicate the report could not be dispositive. The judge
was free to give the report whatever weight he deemed appropriate in rendering
his decision. See Torres v. Schripps, Inc., 342 N.J. Super. 419, 430 (App. Div.
2001) (holding a trial judge has the option, after admission of expert reports, to
accord such weight to them as he or she deems appropriate).
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We next consider defendant's argument that the judge was required to
consider the statutory factors governing equitable distribution, N.J.S.A. 2A:34-
23.1, to resolve the marital debt and debt service reimbursement. Because the
MSA represented the parties' agreement to resolve all issues related to the
dissolution of the marriage, including equitable distribution, and defendant
failed to demonstrate that the MSA was invalid, unfair, or inequitable, N.J.S.A.
2A:34-23.1 is inapplicable. The MSA represented the parties' voluntary
settlement of all issues and the judge properly enforced the agreement as written.
We turn to defendant's claim that the judge erred in declining to enforce a
prior order compelling plaintiff's payment of counsel fees. She contends the
judge should have ordered plaintiff to apply his "2019 tax refund and/or current
deferred compensation" or conducted an ability to pay hearing. We disagree.
"Rule 1:10-3 provides a 'means for securing relief and allow[s] for judicial
discretion in fashioning relief to litigants when a party does not comply with a
judgment or order.'" North Jersey Media Grp. Inc. v. State, Office of Governor,
451 N.J. Super. 282, 296 (App. Div. 2017) (quoting In re N.J.A.C. 5:96, 221
N.J. 1, 17-18 (2015)). "The particular manner in which compliance may be
sought is left to the court's sound discretion." Ibid. (quoting Bd. of Educ. of
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Middletown v. Middletown Twp. Educ. Ass'n, 352 N.J. Super. 501, 509 (Ch.
Div. 2001)).
In an April 9, 2018 order, the sum of $35,000 in counsel fees was awarded
to defendant's counsel. Because plaintiff lacked the funds to pay the court-
ordered counsel fee award, the judge "reduce[d the] fee to a judgment in favor
of the law firm" to "be satisfied from the sale of the marital home."
While defendant argued the judge should enforce the judgment from
plaintiff's 2019 tax refund or other funds, the judge directed the judgment be
satisfied from the net proceeds after the sale of the marital home. He explained
it would be inappropriate to seek other methods of payment without first
exhausting the funds from the home sale. In addition, the judge noted the law
firm had various methods under the Rules of Court to enforce the docketed
judgment. We discern no abuse of discretion in the judge's determination related
to the satisfaction of the prior counsel fee award from plaintiff's share of the net
proceeds realized from the sale of the marital home.
We next review defendant's contention that the judge erred in denying her
request for reimbursement of the children's extracurricular expenses without
compelling mediation or conducting a plenary hearing. We disagree based on
the language in the MSA.
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The MSA explicitly addressed the payment of extracurricular activities
for the children. In accordance with the MSA, defendant was required to pay
the first $2,520 annually toward the children's extracurricular activities because
plaintiff's child support obligation included the sum of $210 per month for those
activities. The MSA also required defendant to provide plaintiff with proof of
payment of the extracurricular expenses. For extracurricular expenses
exceeding $2,520 annually, the parties were required to agree, in writing, to
activity and the cost. If the parties agreed to the activity, plaintiff was required
to pay sixty-five percent and defendant was required to pay thirty-five percent
of the additional costs. Further, the MSA provided that if a party registered a
child for an extracurricular activity without the prior written consent of the other
party, that party would be solely responsible for the cost.
Here, the judge held defendant failed to satisfy her obligation under the
MSA regarding the children's extracurricular activities. He found defendant
failed to "itemize or specifically explain the expenses" and did "not show
plaintiff's written consent for the children to participate" in any added
extracurricular activities. As a result of defendant's failure to comply with the
MSA, the judge properly denied defendant's request for reimbursement of the
extracurricular activities.
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We next review defendant claim that she was entitled to an award of
counsel fees related to her cross-motion. The decision to award counsel fees is
generally left to trial court discretion. Martindell v. Martindell, 21 N.J. 341,
355-56 (1956). We "will disturb a trial court's determination on counsel fees
only on the 'rarest occasion,' and then only because of a clear abuse of
discretion." Slutsky v. Slutsky, 431 N.J. Super. 322, 365 (App. Div. 2018)
(quoting Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008)).
We note the judge omitted any explanation supporting his denial of
defendant's request for counsel fees. In the May 3, 2019 order, the judge wrote,
"Each party is responsible for his/her own counsel fees." Having reviewed the
record, we reason the judge acted within his discretion in denying defendant's
request because he found each party was responsible for fifty percent of the joint
marital debt and there was no reason to award counsel fees to either party under
the circumstances.
Affirmed.
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