M.R. VS. F.B., AND K.B., LEGAL GUARDIAN FOR S.R. (FM-18-0003-11, SOMERSET 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NOT FOR PUBLICATION WITHOUT THE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-3748-16T1
M.R.,
Plaintiff-Appellant,
v.
F.B., deceased, and
K.B., legal guardian
for S.R.,
Defendants-Respondents.
_______________________________
Submitted March 8, 2018 – Decided July 13, 2018
Before Judges Haas and Gooden Brown.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Somerset
County, Docket No. FM-18-0003-11.
Villani & Deluca, PC, attorney for appellant
(Benjamin M. Hoffman, on the brief).
Respondents have not filed a brief.
PER CURIAM
In this post-judgment matrimonial case, plaintiff (father)
appeals from a March 24, 2017 Family Part order denying his motion
to terminate or modify his support obligation for his then twenty-
five-year-old autistic son, S.R.,1 and awarding attorney's fees
based on plaintiff's bad faith. We affirm in part and reverse in
part.
We glean the following facts from the record. Plaintiff and
defendant (mother) married in 1989. Two children were born of the
marriage, J.R., born September 1990, and S.R., born February 1992.
The parties divorced in New York in 1997. Defendant moved to New
Jersey with the two children shortly thereafter, and plaintiff
moved into a house in Brick, New Jersey, which he had purchased
prior to the parties' marriage.
On September 21, 2009, plaintiff moved to register the New
York Judgment of Divorce (JOD) in New Jersey and to reduce his
child support obligation, which the JOD initially set at $485 per
week, with built-in increases over the ensuing years. Defendant
filed a cross-motion to enforce the JOD and enter a judgment
against plaintiff for unpaid child support as well as other relief.
On November 13, 2009, the trial court entered an order
domesticating the foreign judgment and, on April 20, 2010,
following a plenary hearing, reduced plaintiff's child support
obligation to $327 per week from September 21, 2009 to December
31, 2009, with a further reduction to $305 per week beginning
1
We use initials to protect the children's privacy.
2 A-3748-16T1
January 1, 2010. The court also fixed plaintiff's total arrears
as of September 21, 2009, at $110,956, entered judgment in favor
of defendant in that amount, and ordered plaintiff to pay $120 per
week on arrears, for a combined total of $425 per week, effective
January 1, 2010.
In granting the reduction, the court determined that the
decline in plaintiff's financial circumstances and J.R. becoming
a full-time residential college student since the JOD was entered
"constitute[d] a change in circumstances, requiring that child
support be recalculated." According to the court, when the JOD
was entered, child support was based on plaintiff earning $80,000
and defendant earning $51,000 per year. Shortly after the divorce,
plaintiff declared bankruptcy and switched careers, while
defendant's income increased, resulting in "some degree of a
reversal in fortunes."
Nonetheless, finding plaintiff's "continued failure to be
gainfully employed . . . unacceptable," the court imputed to
plaintiff an income of $77,000 for 2009 and $65,000 for 2010,
based largely on the operation of a parking lot leasehold he
purchased in 2008, while defendant earned $121,703 in 2009 and
$114,000 in 2010. In recalculating plaintiff's child support
obligation, the court added to the Child Support Guidelines
(Guidelines) $350 in weekly extraordinary expenses to be
3 A-3748-16T1
apportioned between the parties for S.R.'s specialized care as
S.R. had a "constant need for a [full-time] care provider."
Subsequently, plaintiff moved to emancipate J.R. and
terminate his child support, and to recalculate child support for
S.R. based on the parties' financial circumstances at the time.
Defendant cross-moved to: (1) find plaintiff in violation of
litigant's rights for failure to pay child support in accordance
with the April 20, 2010 order; (2) depose plaintiff as to his
"current assets, income, and liabilities"; (3) update the existing
judgment against plaintiff for child support arrears; (4) compel
plaintiff to sell his home in Brick to pay his arrears; and (4)
obtain counsel fees and costs.
On May 27, 2016, with defendant's consent, the court
emancipated J.R., effective July 1, 2015. The court then
recalculated child support for S.R., imputing annual income to
plaintiff of $65,000 and utilizing defendant's reported annual
income of $135,000 for 2015, to reduce plaintiff's child support
obligation to $264 per week, with arrears of $120 per week. The
court rejected plaintiff's claim that he earned significantly less
than the amount imputed to him in 2010, finding plaintiff's Case
Information Statement (CIS) and "related financial documents and
testimony as to [his] current lifestyle to be at best
mischaracterized, and at worst misrepresented."
4 A-3748-16T1
Based on plaintiff's "persistent and pervasive pattern of
non-compliance with [c]ourt [o]rders and history of delinquency
in the payment of child support," the court also entered an updated
judgment in favor of defendant totaling $148,324.73 for child
support arrears. Additionally, the court awarded defendant $3200
in counsel fees pursuant to Rule 5:3-5(c), Rule 4:42-9, and R.P.C.
1.5(a), and ordered plaintiff to provide the requested discovery
and submit to a deposition. The court, however, denied without
prejudice defendant's motion to compel plaintiff to sell his Brick
home.
Plaintiff moved for reconsideration of the child support and
counsel fee awards, which motion was denied on August 25, 2016.
The court determined that plaintiff's reconsideration motion was
"[p]rocedurally . . . out of time" and
"[s]ubstantively . . . failed to present any new, relevant and
material facts that were not already disclosed and considered by
the [c]ourt."
On September 20, 2016, defendant died from cancer, leaving
her daughter, K.B., to serve as executor of her estate and S.R.’s
legal guardian. Prior to her death, defendant had filed another
motion to compel the sale of plaintiff's Brick home to satisfy the
arrears judgment. In her capacity as S.R.'s legal guardian, K.B.
5 A-3748-16T1
pursued the motion on S.R.'s behalf,2 certifying, in accordance
with Rule 4:59-1(d), that her efforts to execute against
plaintiff's personal property were unsuccessful because plaintiff
had no assets other than the Brick home. K.B. certified further
that through her own investigation, she discovered that plaintiff
had misrepresented the equity and the value of the property. K.B.
also sought counsel fees in connection with the motion, totaling
$3327.50.
Plaintiff opposed the motion and cross-moved for a
recalculation of his child support obligation for S.R. pursuant
to Rule 4:50-1. Plaintiff asserted the May 27, 2016 child support
order should be vacated or modified in light of the new law,
N.J.S.A. 2A:17-56.67, terminating child support by operation of
law at age nineteen, but no later than age twenty-three.
Additionally, plaintiff certified the judge erred because he
"used the . . . Guidelines to calculate child support for [S.R.],"
instead of "the factors set forth under N.J.S.A. 2A:34-23."
Accordingly, plaintiff sought all expenses associated with S.R.'s
care in order to assess his needs as well as "any and all documents"
regarding defendant's Will and estate to determine whether S.R.
2
In a subsequent order, the judge replaced all references to
defendant with K.B. as the real party in interest, pursuant to
Rule 4:26-1.
6 A-3748-16T1
was the beneficiary of any life insurance policy or asset in
defendant's estate.
In the alternative, plaintiff argued that if the Guidelines
applied, then he should receive a credit "for 156 overnights per
year" based on his increased parenting time since defendant's
death. Plaintiff asserted that the increased parenting time
constituted "a change of circumstances," justifying a
modification.
K.B. disputed plaintiff's contention that the Guidelines did
not apply because S.R., then twenty-four years old, was "non-
verbal and [had] behavioral issues and cognitive limitations that
will require him to receive care the rest of his life." According
to K.B., unlike "an unemancipated college student who lives on
campus or away from his custodial parent's home," S.R. "will never
be emancipated or live away from home," rendering N.J.S.A. 2A:34-
23 inapplicable. K.B. further asserted the new law did not apply
because it did not go into effect until February 1, 2017, and, in
any event, would not apply to S.R. because he was disabled prior
to reaching the age of nineteen and required continued support.
K.B. also disputed plaintiff's claim of increased parenting
time since defendant's death, certifying that plaintiff had not
had any overnight visits with S.R. since December 2016, when S.R.
returned home with a black eye after being in plaintiff's care,
7 A-3748-16T1
and S.R.'s caregivers determined "that [p]laintiff should only be
allowed supervised parenting time." K.B. asserted plaintiff's
motion was really yet another motion for reconsideration of the
May 27, 2016 order.
On January 6, 2017, after oral argument, the court granted
K.B.'s motion to compel the sale of plaintiff's Brick home "to
satisfy [p]laintiff's child support arrears" and awarded K.B.
"sole authority to list, market, negotiate, [and] sell the
property, and execute all [necessary] documents." After
determining the Rule 5:3-5(c) factors predominantly "weigh[ed] in
[d]efendant's favor," the court awarded K.B. counsel fees because,
despite the absence of bad faith, the "fees were incurred in part
to enforce a previous [c]ourt order" for which K.B. "should not
solely bear the cost." Additionally, according to the judge,
counsel's "[c]ertification of [s]ervices [was] reasonable."
In rejecting plaintiff's argument that N.J.S.A. 2A:34-23
applied instead of the Guidelines, the court determined that S.R.
attended a special needs school, which constituted "'other'
secondary education" under the Guidelines. The court ruled further
that N.J.S.A. 2A:17-56.67 did not apply because the law became
effective in February 2017, subsequent to plaintiff's application.
Additionally, the court concluded that "even under the new law
[S.R.] would be entitled to continued child support" because of
8 A-3748-16T1
the law's special provision for children with preexisting physical
or mental disabilities requiring continued support. Finally, the
judge rejected plaintiff's request for a modification based on
changed circumstances, finding that plaintiff failed to meet his
burden of proof based on K.B.'s undisputed claim that plaintiff
no longer exercised overnight parenting time following the
physical abuse incident.
When defendant died on September 20, 2016, Probation placed
a hold on defendant's child support account, pending closure. K.B.
filed a motion, seeking continued weekly child support from
plaintiff, her designation as the beneficiary on the Probation
account, and Probation's enforcement of any child support arrears
accumulating since defendant's death. In support, K.B. certified
that, as the sole caretaker of S.R., she required child support
to meet his needs because his Social Security Income (SSI) was
insufficient.
In opposition, plaintiff asserted that the Guidelines did not
apply to children over the age of eighteen, and K.B. had refused
to supply him with documentation regarding the income and expenses
associated with S.R. to establish a support figure. He averred
that since defendant's death, S.R.'s social security benefit
increased from $362.48 to $1879 per month. In addition, he
certified that S.R. had a part-time job, earning minimum wage. He
9 A-3748-16T1
argued that without information concerning state and federal aid
received by S.R. for schooling and other needs, any life insurance
proceeds or death benefits S.R. received when defendant died, or
the balance of a special needs trust established in S.R.'s name,
there was no way to justify the claim that S.R.'s needs were not
being met. Plaintiff asserted that the requested information may
reveal a change of circumstances occasioned by defendant's death
and resulting increase in S.R.'s social security benefit,
warranting a modification of child support.
In reply, K.B. urged the court to deny plaintiff's request
as resolved or moot. K.B. certified that she had already provided
proof from Social Security Administration, evidencing S.R.'s
increased monthly benefit amount. According to K.B., S.R.'s only
additional government benefit was Medicaid, which paid for his
school that he had attended since he was a young child. She
averred further that there were no bank statements for S.R.'s
special needs trust because no bank account was ever opened in
conjunction with the creation of the trust.
On February 10, 2017, after oral argument, the court
determined that pursuant to N.J.S.A. 2A:17-56.67(b), as of
February 1, 2017, the effective date of the statute, child support
could no longer be collected for S.R. through Probation because
he was over twenty-three years of age. As a result, Probation
10 A-3748-16T1
could only collect and enforce arrears. However, the judge ordered
plaintiff to pay a financial maintenance award of $264 per week
directly to K.B. for S.R.'s ongoing care as permitted by N.J.S.A.
2A:17-56.67(e). Further, the judge ordered Probation to designate
K.B. as the obligee on the child support account in order to
collect and enforce arrears from September 2016 to February 1,
2017.
As to plaintiff's request for information, the court noted
that while defendant's death would constitute a changed
circumstance entitling him to the information, plaintiff did not
dispute K.B.'s certification that she had provided the information
and did not point to any other specific omitted documentation.
Accordingly, the court denied plaintiff's request as moot.
Prior to the entry of the February 10, 2017 order, plaintiff
moved for reconsideration of the provisions of the January 6, 2017
order compelling the sale of his Brick house, denying modification
of child support, and awarding counsel fees. Additionally,
plaintiff moved for a modification of his child support obligation
based upon the new law as well as a substantial change of
circumstances, including S.R.'s receipt of Social Security
Disability (SSD) benefits. Plaintiff also requested any support
obligation be deemed as financial maintenance in accordance with
the new law. Further, plaintiff sought an order compelling K.B.
11 A-3748-16T1
to provide a CIS as it related to S.R.'s needs and monthly
expenses, all documents regarding defendant's Last Will and
Testament as it related to whether S.R. was a beneficiary of any
life insurance policy or other assets of defendant's estate, and
all federal and state financial aid documents evidencing S.R.'s
receipt of benefits.
In support of the motion, as to counsel fees, plaintiff
certified that he had no ability to pay legal fees. As to child
support, plaintiff certified the judge failed to address the fact
that S.R. was receiving $1879 per month in SSD, rather than the
$362.48 monthly SSI he received before defendant's death, and the
SSD was never included in the child support calculation. Plaintiff
averred further that the court failed to consider whether S.R.
received any life insurance proceeds or other assets as a result
of defendant's death that may have defrayed his expenses.
Plaintiff also stated that because of the new law, his payments
could no longer be considered child support payable through
Probation but rather, financial maintenance.
K.B. objected to the motion and cross-moved for other relief,
including an award of counsel fees in connection with the
underlying motion. To support her cross-motion, K.B. certified
that plaintiff paid neither the $3327.50 nor $3200 in counsel fees
awarded in the January 6, 2017 and May 27, 2016 orders,
12 A-3748-16T1
respectively. She asserted that plaintiff continued to act in bad
faith by filing "frivolous [m]otions that [had] already been
adjudicated" and "meritless requests for reconsideration."
Additionally, K.B. asserted that plaintiff's contentions
regarding child support were moot because the judge had already
considered S.R.'s $1879 SSD benefit and converted child support
to financial maintenance in the February 10, 2017 order. Moreover,
K.B. averred that plaintiff failed to show changed circumstances
to warrant a modification, failed to provide a complete and updated
CIS, and misrepresented his income.
On March 24, 2017, after oral argument, the court denied all
but one of plaintiff's applications. As to the prior counsel fee
awards, the court determined that plaintiff failed to allege that
the court erred or failed to consider probative or competent
evidence as required by Rule 4:49-2. In awarding K.B. additional
counsel fees for the underlying motion, the court explained that
plaintiff's claim that he lacked the financial ability to pay
counsel fees was not a consideration because "[p]laintiff [had]
acted exclusively in bad faith" by failing to comply with virtually
every court order, including his failure to pay child support,
obtain life insurance, and cooperate with the sale of his Brick
home.
13 A-3748-16T1
Moreover, according to the court, K.B. had "incurred
substantial legal fees in connection with this matter," her fees
"were incurred in part to enforce a previous [c]ourt [o]rder," and
she had been "more successful" than plaintiff in obtaining the
relief sought. Applying the Rule 5:3-5(c) factors,3 the court
found that factors three, four, five, seven, and eight weighed in
K.B.'s favor; factors one, two, and six did not support an award
of fees; and factor nine had no weight. Therefore, the court
concluded, "the factor[s] that . . . favor[ed] an award
outweigh[ed] the ones that [did] not." After scrutinizing K.B.'s
counsel's certification of services in accordance with Chestone
v. Chestone, 322 N.J. Super. 250 (App. Div. 1999), the court
3
Under Rule 5:3-5(c), a court should consider the following
factors when determining a counsel fee award:
(1) [T]he 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.
14 A-3748-16T1
reduced the requested amount to the "compensable" fees and awarded
$2020.75, which was reduced to a judgment.
As to child support, the court denied plaintiff's request to
reconsider the prior ruling applying the Guidelines to calculate
child support instead of the factors set forth in N.J.S.A. 2A:34-
23. The court determined that "[p]laintiff [had] not advanced any
new argument why the . . . Guidelines should not apply, nor [had]
he alleged the [c]ourt erred in the January 6, 2017 [o]rder."
Turning to plaintiff's request to modify the child support
obligation based on changed circumstances, the court noted that
"[p]laintiff's application lack[ed] his prior CIS as required by
[Rule 5:5-4(a)], and this alone would be a basis to deny the
application." "Setting [that] aside," the court determined that
a "substantial increase" in S.R.'s social security benefit
"constitute[d] a substantial change in circumstances warranting
modification of child support."
However, after applying the Guidelines, the court found that
"[p]laintiff's new financial maintenance obligation would be $568
per week, because neither [d]efendant's income nor [S.R.'s] SSI
benefits [could] be factored into the . . . Guidelines." Thus,
plaintiff's obligation under the Guidelines "would more than
double his [existing] obligation." The court noted further that
"whether [S.R.'s] income [was] SSD or SSI, it [did] not appear to
15 A-3748-16T1
work a downward modification of child support in [plaintiff's]
favor."
Acknowledging that "the [c]ourt may deviate or disregard the
Guidelines where it finds good cause to do so" and to avoid "an
injustice," the court determined that deviation from the
Guidelines was warranted to avoid "an unjust result." Accordingly,
the court denied plaintiff's request and ordered him to continue
to pay $264 per week as financial maintenance directly to K.B.
Relying on the February 10, 2017 order, the court denied "as moot"
plaintiff's request that the court "deem[] any future support
payments as financial maintenance" in accordance with the new law,
N.J.S.A. 2A:17-56.67.
The court also denied plaintiff's request that the court
order K.B. to provide a CIS "listing [S.R.'s] needs and monthly
expenses," noting that a CIS was not necessary because S.R.'s
needs were taken into account when child support was calculated
with the Guidelines. Moreover, according to the court, a CIS
"would only be relevant for purposes of income[,] and [defendant]
[was] deceased and no longer [had] an income."
As to plaintiff's request for documents regarding "all
financial aid both federal and state that [K.B.] [was] receiving
on behalf of [S.R.]," relying on the February 10, 2017 order, the
court found that K.B. had "already produced all documents that
16 A-3748-16T1
exist[ed]," and plaintiff had "not advanced any new argument or
provided any objective proof" disputing K.B.'s claim. However,
over K.B.'s objection, the court determined that plaintiff was
entitled to "a copy of [defendant's] Last Will and Testament and
her life insurance policy, or a [c]ertification memorializing the
fact that they [did] not [exist]" to determine whether S.R.
received "significant funds" to render him "independently self-
supporting" and obviate the need for child support. The judge
entered a conforming order, and this appeal followed.
On appeal, plaintiff raises the following points for our
consideration:
POINT I
THE TRIAL COURT ERRED IN
DENYING . . . PLAINTIFF'S REQUEST TO MODIFY
HIS CHILD SUPPORT OBLIGATION BASED UPON [S.R.]
RECEIVING [SSD] WHICH CONSTITUTED A
SUBSTANTIAL CHANGE OF CIRCUMSTANCES AND
WARRANTED A PERIOD OF DISCOVERY AND
[RECALCULATION] OF SUPPORT.
POINT II
THE TRIAL COURT ERRED IN
DENYING . . . PLAINTIFF'S REQUEST TO
RECONSIDER, VACATE, OR MODIFY HIS CHILD
SUPPORT OBLIGATION SET FORTH IN THE MAY 27,
2016 ORDER, BASED UPON THE . . . GUIDELINES NO
LONGER APPLYING GIVEN THE AGE OF THE
PARTIES['] SON BEING [TWENTY-FOUR], THE NEW
LAW IN THE STATE OF NEW JERSEY AS IT RELATES
TO CHILD SUPPORT, AND BASED UPON THE FACTORS
OF N.J.S.A. 2A:34–23.
17 A-3748-16T1
POINT III
THE TRIAL COURT ERRED IN DENYING THE
PLAINTIFF'S REQUEST TO MODIFY HIS CHILD
SUPPORT OBLIGATION BASED UPON THE MOST RECENT
LAW REGARDING CHILD SUPPORT IN THE STATE OF
NEW JERSEY UNDER [N.J.S.A. 2A:56.67] AND BASED
UPON SAME SHOULD HAVE TERMINATED THE
APPROPRIATE FINANCE MAINTENANCE FOR [S.R.].
POINT IV
THE TRIAL COURT ERRED IN AWARDING ADDITIONAL
ATTORNEY FEES TO . . . DEFENDANT AS THE TRIAL
COURT DID NOT TAKE INTO CONSIDERATION ALL THE
FACTORS SET FORTH UNDER RULE 5:3-5(C) AND
FURTHER DETERMINED BAD FAITH
ON . . . [PLAINTIFF] WHEN SAME DID NOT EXIST
AS WELL AS LACKED INFORMATION TO MAKE A PROPER
COUNSEL FEE DETERMINATION.
Clear standards guide our limited review. "We 'do 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.'"
Llewelyn v. Shewchuk, 440 N.J. Super. 207, 213 (App. Div. 2015)
(quoting Rova Farms Resort, Inc. v. Invr's Ins. Co. of Am., 65
N.J. 474, 484 (1974)). "Also, '[b]ecause of the family courts'
special jurisdiction and expertise in family matters, appellate
courts should accord deference to family court factfinding.'"
Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).
"Accordingly, when a reviewing court concludes there is
18 A-3748-16T1
satisfactory evidentiary support for the trial court's findings,
'its task is complete and it should not disturb the result, even
though it has the feeling it might have reached a different
conclusion were it the trial tribunal.'" Id. at 213-14 (quoting
Beck v. Beck, 86 N.J. 480, 496 (1981)).
However, we confer no special deference upon a trial court's
interpretation of the law, which is subject to plenary review.
See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.
366, 378 (1995). We may also exercise more extensive review of
trial court findings that do not involve a testimonial hearing or
the opportunity to assess witness credibility. Cf. N.J. Div. of
Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (stating
that deference to Family Court conclusions is not required where
"no hearing takes place, no evidence is admitted, and no findings
of fact are made"). Nevertheless, "[r]eversal is reserved only
for those circumstances when we determine the factual findings and
legal conclusions of the trial judge went 'so wide of the mark
that a mistake must have been made.'" Llewelyn, 440 N.J. Super.
at 214 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189
N.J. 261, 279 (2007)).
Furthermore, when a trial court denies a party's motion for
reconsideration, we overturn the denial only in the event the
trial court abused its discretion. See Marinelli v. Mitts &
19 A-3748-16T1
Merrill, 303 N.J. Super. 61, 77 (App. Div. 1997). In determining
whether such an abuse has taken place, we are mindful that a party
should not utilize reconsideration just because of
"dissatisfaction with a decision of the [c]ourt." Capital Fin.
Co. of Del. Valley v. Asterbadi, 398 N.J. Super. 299, 310 (App.
Div. 2008) (alteration in original) (quoting D'Atria v. D'Atria,
242 N.J. Super. 392, 401 (Ch. Div. 1990)).
Rather, trial courts should grant motions for reconsideration
"only under very narrow circumstances." Fusco v. Bd. of Educ.,
349 N.J. Super. 455, 462 (App. Div. 2002). Such circumstances
arise when "either (1) the [c]ourt has expressed its decision
based upon a palpably incorrect or irrational basis, or (2) it is
obvious that the [c]ourt either did not consider, or failed to
appreciate the significance of probative, competent evidence."
Ibid. (quoting D'Atria, 242 N.J. Super. at 401); see also R. 4:49-
2.
Turning to the legal principles applicable to child support
awards, in determining child support, "the trial court has
substantial discretion." Gotlib v. Gotlib, 399 N.J. Super. 295,
308 (App. Div. 2008). "When reviewing decisions granting or
denying applications to modify child support, we examine whether,
given the facts, the trial judge abused his or her discretion."
J.B. v. W.B., 215 N.J. 305, 325-26 (2013) (quoting Jacoby v.
20 A-3748-16T1
Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012)). "The trial
court's '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 326 (quoting
Jacoby, 427 N.J. Super. at 116).
The gravamen of plaintiff's contention is that the court
erred by relying on the Guidelines and not applying N.J.S.A. 2A:17-
56.67 to his application. According to plaintiff, N.J.S.A. 2A:17-
56.67 terminated his child support obligation by operation of law
because S.R. was over twenty-three years old, and any future
payments would be deemed financial maintenance, which the court
should have calculated using the factors enunciated in N.J.S.A.
2A:34-23, none of which were considered by the court. "[G]iven
the fact that [S.R.] [was] [twenty-four] years of
age, . . . receiving [SSD], working part-time, attend[ing] a
school . . . paid for through either [f]ederal or [s]tate aid and
it [was] completely unknown what his exact expenses [were] and
what specific [f]ederal and state aid [S.R.] [was] receiving,"
plaintiff urges us to vacate the trial court's order and remand
the matter "for a period of discovery as well as an analysis of
[S.R.'s] needs to determine a proper financial maintenance
obligation."
21 A-3748-16T1
N.J.S.A. 2A:17-56.67, which became effective on February 1,
2017, provides that, generally, "a child support obligation shall
terminate by operation of law without order by the court when a
child reaches [nineteen] years of age." N.J.S.A. 2A:17-56.67(a).
However, if "the child has a physical or mental
disability . . . that existed prior to the child reaching the age
of [nineteen] and requires continued child support," the child's
custodial parent "may submit a written request . . . seeking the
continuation of child support beyond the date the child reaches
[nineteen] years of age." N.J.S.A. 2A:17-56.67(b)(1).
"Notwithstanding the provisions of this section, the
obligation to pay child support shall terminate by operation of
law when a child reaches [twenty-three] years of age," unless
"upon application of a parent," the court converts "a child support
obligation to another form of financial maintenance for a child
who has reached the age of [twenty-three]" "due to exceptional
circumstances including, . . . a mental or physical disability."
N.J.S.A. 2A:17-56.67(e). Pursuant to N.J.S.A. 2A:34-23,
The obligation to pay support for a child
who has not been emancipated by the court
shall not terminate solely on the basis of the
child’s age if the child suffers from a severe
mental or physical incapacity that causes the
child to be financially dependent on a parent.
The obligation to pay support for that child
shall continue until the court finds that the
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child is relieved of the incapacity or is no
longer financially dependent on the parent.
However, in assessing the parent's financial obligation for
a child who suffers from a severe mental or physical incapacity,
the court shall consider the following factors:
(1) Needs of the child;
(2) Standard of living and economic
circumstances of each parent;
(3) All sources of income and assets of each
parent;
(4) Earning ability of each parent, including
educational background, training, employment
skills, work experience, custodial
responsibility for children including the cost
of providing child care and the length of time
and cost of each parent to obtain training or
experience for appropriate employment;
(5) Need and capacity of the child for
education, including higher education;
(6) Age and health of the child and each
parent;
(7) Income, assets and earning ability of the
child;
(8) Responsibility of the parents for the
court-ordered support of others;
(9) Reasonable debts and liabilities of each
child and parent; and
(10) Any other factors the court may deem
relevant.
[N.J.S.A. 2A:34-23(a).]
23 A-3748-16T1
Additionally, "the court shall consider . . . the child’s
eligibility for public benefits and services for people with
disabilities and may make such orders, including an order involving
the creation of a trust, as are necessary to promote the well-
being of the child." Ibid.
Here, the court correctly determined in the January 6, 2017
order that N.J.S.A. 2A:17-56.67 did not apply to plaintiff's
application because the law did not become effective until February
1, 2017. The court further determined that "even under [N.J.S.A.
2A:17-56.67] [S.R.] would be entitled to continued child support"
under the provision for continued support for children with
physical or mental disabilities that existed prior to the age of
nineteen. On plaintiff's motion to reconsider that order, the
court denied the motion, finding no error in the ruling. As to
that finding, we discern no abuse of discretion and affirm that
provision of the March 24, 2017 order.
However, in denying plaintiff's new modification request, in
its March 24, 2017 order, the court incorporated its prior
conclusions regarding the new law, without further analysis, and
denied plaintiff’s request, reasoning that plaintiff's obligation
under the Guidelines would be higher than his existing obligation.
The court also noted that its February 10, 2017 order had already
24 A-3748-16T1
converted the weekly child support payment to financial
maintenance payments payable directly to K.B. in accordance with
N.J.S.A. 2A:17-56.67. However, the court simply adopted the award
previously calculated with the Guidelines, rather than
recalculating a financial maintenance obligation utilizing the
N.J.S.A. 2A:34-23 factors, including S.R.'s eligibility for public
benefits and services for people with disabilities. In so doing,
we agree with plaintiff that the court erred, and we reverse that
provision of the order and remand to the trial court for
consideration of the N.J.S.A. 2A:34-23 factors. In light of our
decision, we need not address plaintiff's other contentions
relating to the child support award.
Turning to plaintiff's challenge to the trial court's award
of counsel fees, "[w]e 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)). Here, we find no clear abuse of
discretion and uphold the court's counsel fee award substantially
for the reasons set forth in the court's statement of reasons,
which analyzed all of the factors under Rule 5:3-5(c). Although
our decision affords plaintiff limited relief, it does not
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overshadow the court's finding of "bad faith" on plaintiff's part
by failing to comply with virtually every court order.
Affirmed in part, reversed in part, and remanded for further
proceedings consistent with this opinion. We do not retain
jurisdiction.
26 A-3748-16T1