FELICIA ROBIN ZWEBNER v. MARC ZWEBNER (FM-02-1545-16, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2825-20
FELICIA ROBIN ZWEBNER,
Plaintiff-Appellant,
v.
MARC ZWEBNER,
Defendant-Respondent.
_________________________
Submitted September 14, 2022 – Decided September 22, 2022
Before Judges Gooden Brown and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-1545-16.
Shapiro, Croland, Reiser, Apfel & Di Iorio, LLP,
attorneys for appellant (David Torchin and Megan E.
Hodes, on the briefs).
Einhorn, Barbarito, Frost & Botwinick, PC, attorneys
for respondent (Stephen P. Haller, of counsel and on the
brief; Jennie L. Osborne, on the brief).
PER CURIAM
In this post-judgment matter, plaintiff Felicia Zwebner appeals from two
April 30, 2021 orders denying her requests for defendant Marc Zwebner's year -
end and/or bonus paystubs; for sanctions; for monthly alimony to be paid
through probation; for interest to be applied to past due alimony payments, and
for counsel fees and costs. We affirm.
I.
We discern the following facts from the record. The parties were married
in 1992 and had four children from the marriage. In September 2017, the parties
divorced by way of a Dual Judgment of Divorce. The Dual Judgment of Divorce
incorporated the parties' Marital Settlement Agreement (MSA), which was
reached while both parties were represented by counsel.
With respect to alimony, defendant was required to pay plaintiff monthly
alimony of $3,055.55 via electronic fund transfer (EFT) no later than the seventh
day of the month. Additionally, within seven days of receiving an annual bonus,
defendant "shall also pay additional alimony, on an annual basis" in the amount
of thirty-three and one-third percent of that bonus "up to a total pretax gross
annual earned income . . . cap of $3,000,000[] per year." The MSA stated that
if defendant pays plaintiff less than the maximum amount in alimony owed to
her, "he shall be obligated to provide [plaintiff] with his Form W-2, and any
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other official document revealing his gross earned income including his K -l's
and a schedule (if any) prepared by the Fund's inhouse or outside accountant.
[Defendant] shall not be obligated to provide his tax return." In every year that
plaintiff claimed entitlement to alimony, she was required to provide "the
appropriate forms reflecting her pretax earned income from personal services
(examples include: Schedule C of her 1040, LLC, LLP, Subchapter S or C-
Corporation[,] tax returns, W-2, K-1, 1099 and last paystub, etc.). [Plaintiff]
shall not be required to provide her form 1040 tax return."
The parties also agreed that defendant "shall be obligated to maintain, for
the benefit of [plaintiff] and only for the period of time that [defendant] is
obligated to pay alimony to [plaintiff], life insurance on his life having a death
benefit of $3,500,000[]." In addition, defendant "shall be obligated to maintain,
for the benefit of the parties' children, life insurance . . . in the total amount of
$1,500,000[], naming the parties' four . . . children as equal [i]rrevocable
[b]eneficiaries and naming [plaintiff] as [t]rustee."
The terms of the MSA required both parties to contribute to the children's
expenses. Finally, "[s]hould either party fail substantially to abide by the terms
of [the MSA], the defaulting party shall indemnify and hold harmless the other
for all reasonable expenses and costs, including attorney's fees, incurred in
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successfully enforcing [the MSA], which fees shall be determined by a [c]ourt
of competent jurisdiction."
Following the divorce, the parties engaged in several post-judgment
motions to enforce litigant's rights. On May 15, 2020, the judge entered an order
to enforce the terms of the MSA. Pertinent to this appeal, the order: (1) granted
plaintiff's request that defendant provide documents evidencing income by
March 1 of each year and that failure to do so would result in a $100 per day
sanction; (2) granted plaintiff's request that defendant be restrained and enjoined
from taking offsets against any obligation owed by defendant to plaintiff for
alimony; (3) found plaintiff in violation of litigant's rights for failure to make
payment for some of the children's expenses; (4) required the parties to provide
proof of life insurance, along with beneficiary/custodian designation, on an
annual basis on or before July 1 of each year; (5) denied plaintiff's request that
defendant pay alimony via wage garnishment without prejudice; and, (6) denied
plaintiff's application for attorney's fees.
On June 19, 2020, defendant provided proof of life insurance, showing
that defendant named his estate as a beneficiary in violation of the MSA.
Defendant provided a second insurance policy naming the children as
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beneficiaries of $1,500,000 in life insurance but failing to name plaintiff as
trustee.
On January 26, 2021, plaintiff filed another application seeking the
following relief: (1) directing defendant to immediately provide plaintiff a copy
of his final paycheck for 2020; (2) directing defendant to pay his additional
alimony obligation; (3) directing defendant to provide plaintiff his year-end
paycheck each year prospectively no later than January 5th of the following
year; (4) sanctioning defendant $100 per day for each day past January 5th that
he is delinquent in providing plaintiff his year-end paycheck; (5) directing
defendant to pay his base alimony obligation of $705.13 per week ($36,666.67
per year) by wage garnishment through Bergen County Probation; (6) directing
defendant to provide plaintiff with proof of his life insurance policy per Article
XIII of their MSA within seven days; (7) sanctioning defendant $100 per day
for each day that he is delinquent in providing proof of life insurance policy;
and, (8) counsel fees and costs.
On March 4, 2021, defendant filed a cross-motion that sought relief as
follows: (1) denying all relief sought by the plaintiff; (2) finding plaintiff in
violation of litigant's rights for her failure to make payment for certain of the
children's expenses; (3) requiring plaintiff to provide full income information;
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(4) permitting defendant to offset plaintiff's delinquent payments for the
children's expenses against any additional alimony due from defendant to
plaintiff; (5) for counsel fees and costs; and, (6) sanctioning plaintiff.
On March 9, 2021, while the initial motion was still pending, plaintiff
filed a second motion. The second motion requested the following relief: (1)
finding defendant in violation of litigant's rights for failure to abide by t he
provisions of the parties' MSA and the previous May 15, 2020 order regarding
the payment of additional alimony; (2) directing defendant to immediately pay
plaintiff additional alimony for 2020 of $99,999.97; (3) directing defendant to
provide his paystubs in 2020 showing when he received additional distributions
and directing defendant to pay plaintiff interest of three and a half percent on
additional alimony due from seven days after receipt of such funds through the
date of payment; and, (4) for counsel fees and costs.
On March 11, 2021, plaintiff replied to defendant's first cross-motion. In
her reply, she attached proof of defendant's late alimony payments from
February 2019 to March 2021, indicating eleven times where defendant paid
alimony after the seventh day of the month.
On April 15, 2021, defendant filed an opposition and cross-motion to
plaintiff's second motion and requested the following relief: (1) denying all
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relief sought by the plaintiff; (2) finding plaintiff in violation of litigant's rights
for her failure to make disclosure of her income details for 2020 as required by
the parties' MSA; (3) for counsel fees and costs; and, (4) sanctioning plaintiff.
Plaintiff replied to defendant's second cross-motion on April 21, 2021.
On April 30, 2021, after a hearing, the judge issued two orders. In the
first order, the judge granted plaintiff's request to direct defendant to pay
plaintiff additional alimony, granted plaintiff's request to direct defendant to
provide plaintiff with proof of a compliant life insurance policy on or before
July 1, 2021, granted defendant's request to require plaintiff to provide full
income information, and denied the remainder of the parties' requests. In the
second order, the judge granted plaintiff's request to find defendant in violation
of litigant's rights for failure to abide by the provisions of the parties' MSA and
the May 15, 2020 order regarding the payment of additional alimony, granted
plaintiff's request to be paid additional alimony in the amount of $41,980.30,1
and denied the remainder of the parties' requests. This appeal followed.
On appeal, plaintiff presents the following arguments for our
consideration:
1
During the motion hearing, defense counsel stated defendant had paid part of
his alimony and that the outstanding amount for additional alimony was actually
$41,980.30.
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POINT I
STANDARD OF REVIEW ON APPEAL: ABUSE OF
DISCRE[]TION.
POINT II
THE LOWER COURT IMPROPERLY RULED THAT
DEFENDANT'S FINAL PAYCHECK DOES NOT
CONSTITUTE AN OFFICIAL DOCUMENT
REVEALING HIS GROSS EARNED INCOME.
A. THE COURT ERRED WHEN IT DID
NOT IMPLEMENT THE MUTUAL
INTENT OF THE PARTIES.
B. THE COURT ERRED BY IGNORING
DEFENDANT'S ADMISSION OF
RECEIPT OF INCOME THAT
OCCURRED "MID-YEAR" AND
"LATER IN THE YEAR."
C. THE TRIAL COURT MISAPPLIED
THE HOLDING IN QUINN V. QUINN.
POINT III
THE LOWER COURT ABUSED ITS DIS[C]RETION
BY NOT SANCTIONING DEFENDANT FOR HIS
LACK OF COMPLIANCE WITH PRIOR COURT
ORDERS AND THE PARTIES' MSA.
POINT IV
THE LOWER COURT ABUSED ITS DISCRETION
BY NOT GRANTING PLAINTIFF'S REQUEST
THAT MONTHLY ALIMONY BE PAID THROUGH
PROBATION VIA WAGE GARNISHMENT.
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POINT V
THE COURT ABUSE[D] ITS DISCRETION IN NOT
ASSESSING INTEREST AGAINST DEFENDANT'S
OUTSTANDING ALIMONY OBLIGATION.
POINT VI
THE LO[]WER COURT ABUSED ITS DISCRETION
BY NOT AWARDING PLAINTIFF COUNSEL FEES.
A. THE TRIAL COURT IMPROPERLY
IGNORED THE FEE-SHIFTING
CLAUSE OF THE PARTIES'
AGREEMENT.
B. THE TRIAL COURT'S ANALYSIS
SUPPORTS A COUNSEL FEE AWARD
FOR THE PLAINTIFF PURSUANT TO
R[ULE] 5:3-5(C).
POINT VII
THE APPELLATE DIVISION SHOULD EXERCISE
ORIGINAL JURISDICTION OR THE MATTER
SHOULD BE REM[A]NDED TO A DIFFERENT
TRIAL JUDGE.
II.
Our review of Family Part orders is limited. Cesare v. Cesare, 154 N.J.
394, 411 (1998). We typically accord deference to the Family Part judges due
to their "special jurisdiction and expertise in family matters." Id. at 413. The
judge's findings are binding so long as they are "supported by adequate,
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substantial, credible evidence." Id. at 412. (quoting Rova Farms Resort, Inc. v.
Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Thus, we will not "disturb the
'factual findings and legal conclusions of the trial judge unless [we are]
convinced that they are so manifestly unsupported by or inconsistent with the
competent, relevant and reasonably credible evidence as to offend the interests
of justice.'" Ibid. (quoting Rova Farms, 65 N.J. at 484). We review de novo
"the trial judge's legal conclusions, and the application of those conclusions to
the facts." Elrom v. Elrom, 439 N.J. Super. 424, 433 (App. Div. 2015) (quoting
Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)).
III.
We first reject defendant's argument that the judge erred in his
interpretation of the MSA by finding that it did not require defendant to produce
his paystubs. Settlement agreements, including settlement agreements in
matrimonial actions, are governed by basic contract principles and, as such,
courts should discern and implement the parties' intent. J.B. v. W.B., 215 N.J.
305, 326 (2013). "At the same time, 'the law grants particular leniency to
agreements made in the domestic arena,' thus allowing 'judges greater discretion
when interpreting such agreements.'" Pacifico v. Pacifico, 190 N.J. 258, 266
(2007) (quoting Guglielmo v. Guglielmo, 253 N.J. Super. 531, 542 (App. Div.
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1992)); see also Steele v. Steele, 467 N.J. Super. 414, 441 (App. Div. 2021)
("Divorce agreements are necessarily infused with equitable considerations and
. . . are not governed solely by contract law."). "The court's role is to consider
what is written in the context of the circumstances at the time of drafting and to
apply a rational meaning in keeping with the 'expressed general purpose.'"
Pacifico, 190 N.J. at 266 (quoting Atl. N. Airlines, Inc. v. Schwimmer, 12 N.J.
293, 302 (1953)).
The record supports the judge's finding that, unlike other forms of proof
of defendant's income, paystubs were "not named specifically in the agreement."
The record shows that the parties took great care to negotiate the MSA in which
defendant's W-2s were specifically included and tax returns were specifically
excluded. That paystubs could have been specifically referenced is evident by
the fact that the parties included paystubs as an acceptable document reflecting
plaintiff's earned income. While the catch-all phrase "any other official
document revealing his gross earned income" could include paystubs, it does not
mandate that defendant provide paystubs to the same degree that defendant is
mandated to provide his W-2s. The judge reasoned that requiring defendant to
provide his paystubs "would give . . . [p]laintiff a better position than what was
negotiated because paystub[s] . . . [were] not negotiated." We find that
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reasoning sound and, given the judge's "'discretion when interpreting [marital]
agreements,'" Pacifico, 190 N.J. at 266 (quoting Guglielmo, 253 N.J. Super. at
542), we see no reason to disturb the judge's conclusion.
IV.
We also reject plaintiff's argument that the judge erred in declining to
sanction defendant. "Rule 1:10-3 allows a court to enter an order to enforce
litigant's rights commanding a disobedient party to comply with a prior order"
or face sanctions. Milne v. Goldenberg, 428 N.J. Super. 184, 198 (App. Div.
2012). "Relief under R[ule] 1:10-3, whether it be the imposition of incarceration
or a sanction, is not for the purpose of punishment, but as a coercive measure to
facilitate the enforcement of the court order." Ridley v. Dennison, 298 N.J.
Super. 373, 381 (App. Div. 1997); see also R. 5:3-7 (outlining remedies a Family
Part judge may employ upon a finding of a violation of a judgment or order,
including imposing sanctions). The court rules "provide various means for
securing relief and allow for judicial discretion in fashioning relie f to litigants
when a party does not comply with a judgment or order." In re N.J.A.C. 5:96 &
5:97, 221 N.J. 1, 17-18 (2015).
Here, although defendant violated certain MSA and court-ordered
requirements, those transgressions were not so severe as to warrant sanctions
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and, in any event, plaintiff similarly violated some of her duties. Because the
court rules "allow for judicial discretion in fashioning relief," In re N.J.A.C.
5:96 & 5:97, 221 N.J. at 17-18, we see no reason to disturb the judge's
determination that sanctions were not required.
V.
We similarly reject plaintiff's argument that the judge erred in declining
to order that monthly alimony be paid through probation via wage garnishment.
N.J.S.A. 2A:17-56.13 provides, "in every award for alimony, maintenance or
child support payment, the judgment or order shall provide that payments be
made through the Probation Division of the county in which the obligor resides,
unless the court, for good cause shown, otherwise orders." Further, pursuant to
Rule 5:7-4(b), "[a]limony . . . 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." Matters concerning the enforcement and collection of alimony are
committed to the sound discretion of the trial court. In re Rogiers, 396 N.J.
Super. 317, 327 (App. Div. 2007).
In this case, the MSA never contemplated that defendant pay alimony
through probation. Instead, the parties agreed that defendant would pay alimony
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through EFT. Although defendant sometimes paid alimony late, he never
completely failed to pay alimony for any given month. In fact, between the
period of February 2019 to March 2021, defendant paid alimony on time more
often than not. The judge's determination that there was a "certain lack of proof"
warranting probation and concern for the "ran[cor] between [the] parties," was
based on his careful review of the case, and we discern no abuse of discretion.
VI.
We find equally unavailing plaintiff's argument that the judge erred in not
assessing interest against defendant's outstanding alimony obligation. Rule 5:7-
5(a) states, "[f]or past-due alimony . . . payments . . ., the court may . . . assess
a late interest charge against the adverse party at the rate prescribed by Rule
4:42-11(a)." The award of interest is discretionary. Clarke v. Clarke ex rel.
Costine, 359 N.J. Super. 562, 571-72 (App. Div. 2003). As there is nothing in
the MSA that contemplates interest on late payments, any award of interest is
left to the trial judge's discretion. Based on a review of the record, there is no
evidence to suggest the judge abused his discretion.
VII.
Finally, we reject plaintiff's argument that she is entitled to attorney's fees.
Although New Jersey generally disfavors the shifting of attorney's fees, a
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prevailing party may recover attorney's fees if expressly provided by statute,
court rule, or contract. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 440
(2001). Pursuant to Rule 5:3-5(c), attorney's fees may be awarded in a family
action. See R. 4:42-9(a)(1). Under Rule 5:3-5(c),
[i]n determining the amount of the fee award, the court
should consider, . . . 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.
"An allowance for counsel fees and costs in a family action is discretionary."
Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004). Fee determinations
should be disturbed only where there has been a clear abuse of discretion.
Giarusso v. Giarusso, 455 N.J. Super. 42, 51 (App. Div. 2018).
In this case, plaintiff failed to show that the judge abused his discretion in
declining to award attorney's fees. Although the parties' MSA does allow for
attorney's fees "incurred in successfully enforcing [the MSA]," the judge noted
that both parties violated certain terms of the agreement and neither party
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enjoyed unqualified success. The judge considered the appropriate factors under
Rule 5:3-5(c), and our review of the record reveals that the judge's findings were
supported by adequate, substantial, and credible evidence demonstrating that the
parties are capable of paying their fees; that the parties actively and aggressively
sought sanctions while failing to abide by the MSA; and, that both parties were
only partially successful in their claims.
Plaintiff's remaining arguments requesting us to exercise original
jurisdiction or remand the matter to a different judge lack sufficient merit to
warrant discussion in a written opinion. R. 2:1-3(e)(1)(E).
Affirmed.
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