ANTHONY BELL VS. GLADYS BELL (FM-09-0286-00, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-2806-16T2
ANTHONY BELL,
Plaintiff-Appellant,
v.
GLADYS BELL,
Defendant-Respondent.
__________________________
Argued September 12, 2018 – Decided January 18, 2019
Before Judges Fasciale and Gooden Brown.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FM-09-0286-00.
William Rodriguez argued the cause for appellant
(Rodriguez Kim Law Group, LLC, attorney; Georgeann
M. Belcher, Kiera E. Kenniff, and Thomas Kim, on the
briefs).
Kevin C. Orr argued the cause for respondent.
PER CURIAM
In this post-judgment matrimonial matter, plaintiff (ex-husband) appeals
from the December 13, 2016 Family Part order denying reconsideration of a
September 16, 2016 order. The December 13, 2016 order denied reconsideration
of the effective date of emancipation of the parties' youngest child; denied
reconsideration of the enforcement of the provision of the parties' property
settlement agreement (PSA) entitling defendant (ex-wife) to a lump sum
payment of $30,000 from plaintiff's pension plan; and denied reconsideration of
the counsel fees awarded to defendant in connection with the enforcement of the
pension provision. The December 13, 2016 order also awarded defendant
additional counsel fees for opposing plaintiff's reconsideration motion and for
her cross-motion to enforce the September 16, 2016 order. For the reasons that
follow, we reverse and remand for a plenary hearing.
The parties married in 1981 and divorced in 2000. At the time, they had
three unemancipated children born of the marriage: L.B., 1 a girl born April 1981;
A.B., a boy born October 1984; and S.B., another girl born December 1985.
Under the parties' PSA, which was incorporated into their March 28, 2000 Dual
Judgment of Divorce, plaintiff was required to pay defendant child support in
the amount of "$327[] per week . . . which include[d] [fifty dollars] toward . . .
1
We refer to the children by initials to protect their privacy.
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2
[c]ollege tuition." Plaintiff also agreed to "liquidate his Copeland and IRA
accounts to pay for [L.B.'s] [c]ollege tuition through May 2000[,]" and agreed
to pay defendant "$375[] at the rate [of] [fifty dollars] per month commencing
April 2000 toward an outstanding legal bill for [A.B.]"
Under the PSA, both parties waived alimony. However, while plaintiff
waived "any and all claims" against defendant's pension, the pension provision
of the PSA specified that "[defendant] shall receive $30,000[] of [plaintiff's]
pension to effectuate a 50/50 division of both parties['] pensions." Further, the
parties agreed to attempt to "settle" any "dispute arising under [the PSA]"
between them before resorting to "the [c]ourts for any determination[,]" and
agreed to "keep the other informed of his or her place of residence and telephone
number" and "promptly notify the other of any change." Additionally, the
parties represented that they had "independent counsel[,]" that they entered into
the PSA "without any coercion, duress[,] or undue influence," and that they
"read and understood all of the provisions of [the PSA] and deem[ed them] fair
and reasonable[.]"
Thereafter, the parties engaged in extensive post-judgment motion
practice, primarily involving the children. Specifically, an August 18, 2000
order directed plaintiff to comply with the provisions of the PSA, requiring him
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3
to liquidate his accounts to pay L.B.'s college tuition and make monthly
payments towards A.B.'s legal bill. A December 1, 2000 order issued a warrant
for plaintiff's arrest for non-compliance with the August 18, 2000 order. After
plaintiff surrendered himself, a January 5, 2001 order credited his $500 payment
to his arrears, which included a $10,760 outstanding balance for L.B.'s college
tuition. When L.B. did not return to college after the Spring 2000 semester, on
plaintiff's motion, a June 14, 2004 order emancipated L.B., retroactive to April
1, 2002. The order also reduced plaintiff's weekly child support obligation for
the two younger children to $227 "until May 1, 2007," or until a "credit of
[$7638]" negotiated by the parties in connection with L.B.'s emancipation was
liquidated, at which point the child support obligation would increase to $282
per week. Additionally, the June 14, 2004 order directed the arrears of $5500,
"represent[ing] [L.B.'s] past due college tuition" to be paid to Fairleigh
Dickinson University (FDU), at a rate of $115.48 per week until "paid in full."2
Thereafter, in 2005, the trial court granted plaintiff's motion to emancipate A.B.3
2
In a June 10, 2004 order, the trial court also substituted plaintiff for L.B. in
FDU's lawsuit filed in connection with the past due balance, and entered a $6843
judgment against him.
3
This order is not included in the record.
A-2806-16T2
4
The parties' youngest child, S.B., enrolled at New Jersey City University
in 2003, and graduated on September 8, 2008. She married later that month, on
September 23, 2008. On May 24, 2016, plaintiff moved to emancipate S.B.,
then thirty years old, retroactive to her college graduation on September 8, 2008.
Plaintiff requested that any child support and college contribution overpayments
be applied towards the $30,000 lump sum pension payout required under the
PSA, and sought attorney's fees. In response, except for agreeing that S.B.
should be emancipated, defendant opposed the motion and cross-moved for
enforcement of the pension provision of the PSA and attorney's fees and costs.
In her supporting certification, defendant asserted she became permanently
disabled in 2006, had a fire in her home in 2007, and stopped receiving child
support payments around that time "until 2014," when she received "a lump sum
payment" of approximately $26,000. While she did not oppose S.B.'s
emancipation, she objected to plaintiff's request for recoupment of "any alleged
overpayment based upon the unique circumstances of th[e] case," including the
fact that prior to his May 2016 motion, "[plaintiff] took no action to stop child
support payments."
According to defendant, she had "no viable means of earning additional
money for retirement[,]" as she was then fifty-seven years old and had "planned
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5
on receiving $30,000 from [plaintiff's] . . . pension in a lump sum." However,
when she contacted his employer, she was informed that a "lump sum" payment
could not be provided. As a result, she asked the court to "modify" the PSA "to
provide that [plaintiff] be compelled to pay [her] . . . the sum of $30,000 now."
To support her request, defendant attached a letter dated January 11, 2001, from
the Division of Pensions and Benefits (Division) responding to her inquiry
regarding plaintiff's pension account with the Police and Firemen's Retirement
System (PFRS).
In the letter, the Division informed defendant that the PSA's language
regarding equitable distribution of plaintiff's pension was "not acceptable for
implementation" because, at that time, plaintiff was "not retired and not
receiving monthly retirement allowances from the Division," and neither
plaintiff nor defendant "as the alternate payee" was "entitled to . . . lump sum
payments of retirement benefits[.]" The letter stated further that upon receipt of
"a revised or amended court order" indicating, for example, that the Division
was "to withhold either a specific dollar amount or a specific percentage of
[plaintiff's] gross monthly retirement allowance," the Division "[could] and
[would] implement such a revised or amended court order as soon as practical
A-2806-16T2
6
after [plaintiff] retire[d]" and began receiving his monthly retirement
allowances.4
In response, plaintiff explained that the $26,000 lump sum child support
payment defendant received in 2014 resulted from a mix-up in connection with
his wage garnishment and was through "no fault of [his] own." He certified
further that he "immediately took action in order to emancipate" S.B. after her
college graduation by "reach[ing] out to [d]efendant on numerous occasions in
order to resolve the issue without [c]ourt intervention as [he] did not have an
address to serve [d]efendant with any motion papers at the time." However,
defendant "refused to discuss th[e] issue with [him,]" and "[f]or the past eight
(8) years, [d]efendant . . . opportunely avoided th[e] issue." Plaintiff continued
that "[i]t was not until [2016] that [he] finally discovered where [defendant was]
currently living, which enabled [him] to file this motion and properly serve her
with same." Plaintiff also objected to modifying the PSA to compel him to make
a $30,000 lump sum payment now, asserting that despite receiving the letter
from his employer in 2001, defendant waited fifteen years before taking any
action to amend the PSA. Additionally, plaintiff averred defendant had her own
4
Attached to the letter was a sample sheet containing "the type of language"
appearing in "court orders" implemented by the Division.
A-2806-16T2
7
State pension from her former employer, to which he "waived any and all
claims" under the PSA.
In a July 15, 2016 order, the court ordered the parties to exchange updated
Case Information Statements (CIS) by August 15, 2016, and return for a hearing
on the respective motions. On September 16, 2016, without oral argument, the
court granted defendant's motion in part, emancipating S.B. as of the filing date
of plaintiff's motion, and awarded him credit for any payments made after that
date. In the accompanying statement of reasons, the court explained that
emancipation was "effective May 24, 2016," because the "child has reached the
age of majority, and [d]efendant does not oppose emancipation[.]" The court
also granted defendant's motion to enforce litigant's rights, ordering plaintiff to
pay defendant $30,000 from his pension in accordance with the PSA, and
awarding defendant $1925 in counsel fees. In support, the court indicated that
plaintiff admitted in his moving papers "that he ha[d] not paid the $30,000 []"
and was thus "in violation of the [PSA]." As to the counsel fee award, after
considering the nine factors enunciated in Rule 5:3-5(c), including a finding that
"[p]laintiff ha[d] not acted in good faith by violating various court orders and
the [PSA,]" and that defendant prevailed on her cross-motion, the court
determined that the fees were "reasonable."
A-2806-16T2
8
Plaintiff moved for reconsideration of the provisions of the September 16,
2016 order pertaining to the effective date of S.B.'s emancipation, enforcement
of the PSA's pension provision, and award of counsel fees. In his supporting
certification, plaintiff reiterated that the emancipation date should have been
effective in September 2008, when S.B. graduated from college and married.
He submitted documents from Probation showing child support payments to
defendant totaling approximately $35,336 from September 2008 to July 31,
2016.
Further, plaintiff certified that based on the January 11, 2001 letter from
the Division, of which he was unaware until defendant's cross-motion, the
pension provision in the PSA "cannot be enforced" because "[t]he plan provider
does not allow a lump sum distribution." Thus, "[he] could not have violated
the [PSA] if [he was] unaware that [his employer] could not divide the pension
as stated within the [PSA]." He claimed that had he known, he "would have
worked with [d]efendant to modify [the PSA,]" but he "should not be penalized
for something that was not [his] fault." Plaintiff continued that although he
retired on July 1, 2016, he had "not received [his] pension yet."5 Thus, defendant
would still be able to receive her share of his pension through monthly
5
Subsequently, plaintiff began receiving his pension in November 2016.
A-2806-16T2
9
distributions, as he did "not have the means to pay a $30,000[] lump sum to the
[d]efendant." Defendant opposed the motion and cross-moved for enforcement
of the September 16, 2016 order, as well as attorney's fees and costs.
On December 2, 2016, during oral argument on the motions, the court
stated that it "generally . . . emancipate[d] children . . . retroactive to the date of
filing[.]" While the court was "sensitive to what [plaintiff] may have gone
through in the last . . . eight years," the court was "not convinced that [it] should
go back to 2008" and did not "believe [it] acted incorrectly in [its] last order."
Skeptical of plaintiff's claim regarding his inability to locate defendant to serve
her with motion papers earlier, the court elicited sworn testimony from the
parties on the record. Defendant testified that from 2008 to 2016, she moved
"[t]wice." She resided in the marital residence in Jersey City until a fire in
2008.6 Between 2008 and 2010, she moved to Irvington and then Union, before
returning to a different address in Jersey City, where she remained since 2010.
Plaintiff countered that although they had children in common, the "children
would not tell [him] where their mother lived."
6
Defendant's testimony conflicted with her earlier certification in which she
averred that the fire occurred in 2007.
A-2806-16T2
10
On December 13, 2016, the court issued a written decision denying
plaintiff's motion for reconsideration "without prejudice," determining that
plaintiff failed to "meet his burden pursuant to [Rule] 4:49-2." However, the
court granted defendant's cross-motion to enforce the September 16, 2016 order,
directing plaintiff to pay a $30,000 lump sum payment and $1925 in counsel
fees. Further, the court granted defendant's cross-motion for additional counsel
fees in the amount of $3385, for having to file a second motion to enforce the
PSA, and to respond to plaintiff's reconsideration motion.
In its findings of fact, initially, the court found that "[p]laintiff admitted
he was aware [S.B.] could be emancipated as soon as 2008, when she graduated
college and married." Further, "[defendant] has lived in Jersey City for the past
six years" and "only moved twice in the eight years that [p]laintiff could not
allegedly locate her to serve the motion papers." Additionally, according to the
court, "[p]laintiff has not complied with the [PSA], whereby the parties agreed
that [d]efendant would receive $30,000 of [p]laintiff's pension" and "did not
propose an alternative to the lump sum payment . . . other than applying a credit
of overpayment of child support."
In denying plaintiff's request to reconsider the effective date of S.B.'s
emancipation, the court "view[ed] [p]laintiff as having less credibility than
A-2806-16T2
11
[d]efendant," and found it "incredible that [p]laintiff could not locate
[d]efendant for eight years[,]" despite "maintain[ing] communication with the
children, who in turn communicated with [d]efendant." The court also noted
that "[p]laintiff allowed his attorney to respond to the [c]ourt's questions and
testified sparingly." Thus, the court concluded plaintiff's delay in filing for
emancipation was "beyond unreasonable given his options to pursue substituted
service of the motion or conduct[] a diligent inquiry search," pursuant to Rule
4:4-4(b). The court rejected plaintiff's "equitable argument" that "[d]efendant
was not entitled to collect child support for [S.B.] because [she] already went
through the process of emancipation twice before with the two other childre n."
Applying the doctrine of laches, the court determined "[p]laintiff failed to
exercise his legal right for eight years" and defendant "would now be harmed if
the [c]ourt were inclined to credit eight years of overpayment against her."
The court also rejected plaintiff's request to reconsider enforcement of the
pension provision of the PSA. The court dismissed plaintiff's contention, as
constituting grounds for reconsideration, the fact that the "lump sum
distribution" could not be implemented and that defendant was aware of this fact
since 2001 but plaintiff was unaware until defendant's first cross-motion.
According to the court, "[n]either party . . . sought to modify the [PSA] language
A-2806-16T2
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or file[d] a Qualified Domestic Relations Order to address [the] issue[,]" and
plaintiff "did not propose" an alternate solution, other than offsetting the pension
payout with the child support overpayment. Likewise, the court rejected
plaintiff's request to reconsider the $1925 counsel fee award to defendant
because the court upheld the enforcement action. Finally, after reviewing
defense counsel's certification of services in connection with the current
motions, the court concluded the requested fee of $3385 was "reasonable in light
of the nine factors pursuant to [Rule] 5:3-5(c)." In particular, the court
determined plaintiff acted in bad faith by "unreasonably delay[ing] . . . filing the
motion[,]" while defendant brought her cross-motion "in good faith." The court
entered a memorializing order and this appeal followed.
On appeal, plaintiff argues the court should have terminated his child
support obligation retroactive to September 8, 2008, when S.B. graduated
college, and he "should be given a credit for any child support payments
subsequent to that date." Plaintiff further argues the court erroneously applied
"the doctrine of laches" rather than "applying an equitable offset between the
child support overpayments and amount due pursuant to the pension provision
of the parties' PSA." Plaintiff explains the doctrine of laches "does not
accomplish mutual fairness and equity between the parties considering the
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totality of [the] circumstances," and the court "should have ordered a plenary
hearing" rather than the "limited fact finding" conducted without "the benefit of
discovery" before finding the doctrine applied. We agree and remand for further
findings of the equitable factors relevant to plaintiff's request for retroactive
emancipation of S.B. to 2008 and recoupment of child support overpayments.
"Motions for reconsideration are governed by Rule 4:49-2, which provides
that the decision to grant or deny a motion for reconsideration rests within the
sound discretion of the trial court." Pitney Bowes Bank, Inc. v. ABC Caging
Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015). "Reconsideration
cannot be used to expand the record and reargue a motion" but "is only to point
out 'the matters or controlling decisions which counsel believes the court has
overlooked or as to which it has erred.'" Capital Fin. Co. of Del. Valley Inc. v.
Asterbadi, 398 N.J. Super. 299, 310 (App. Div. 2008) (quoting R. 4:49-2).
Reconsideration "is not appropriate merely because a litigant is
dissatisfied with a decision of the court or wishes to reargue a motion[.]"
Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010). Rather,
reconsideration
should be utilized only for those cases which fall into
that narrow corridor in which 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
A-2806-16T2
14
either did not consider, or failed to appreciate the
significance of probative, competent evidence.
[Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392,
401 (Ch. Div. 1990)).]
"In short, a motion for reconsideration provides the court, and not the
litigant, with an opportunity to take a second bite at the apple to correct errors
inherent in a prior ruling." Medina v. Pitta, 442 N.J. Super. 1, 18 (App. Div.
2015). Thus, we will not disturb a trial judge's denial of a motion for
reconsideration absent a clear abuse of discretion. Pitney Bowes Bank, 440 N.J.
Super. at 382. An "abuse of discretion only arises on demonstration of 'manifest
error or injustice,'" Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v.
Torres, 183 N.J. 554, 572 (2005)), and occurs when the trial judge's decision is
"made without a rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis[.]" Milne v. Goldenberg, 428 N.J.
Super. 184, 197 (App. Div. 2012) (quoting Flagg v. Essex Cty. Prosecutor, 171
N.J. 561, 571 (2002)).
Here, we are satisfied the trial court mistakenly exercised its discretion in
denying plaintiff's motion for reconsideration "without prejudice." We conclude
the court failed to consider or appreciate the significance of probative,
competent evidence, and should have conducted a plenary hearing to resolve
A-2806-16T2
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genuine issues of material fact and give due consideration to the equitable
factors pertinent to the retroactive emancipation of S.B and recoupment of child
support overpayments. "[A]n equitable adjustment of the rights of the parties
may vary from one case to another[,]" and must be considered in light of the
facts in an individual case. Vasquez v. Glassboro Serv. Ass'n Inc., 83 N.J. 86,
108 (1980). "[T]rial judges cannot resolve material factual disputes upon
conflicting affidavits and certifications." Harrington v. Harrington, 281 N.J.
Super. 39, 47 (App. Div. 1995). "[I]f the proper disposition of a matrimonial
dispute requires a plenary hearing, the dispute is by definition not subject to
disposition on the papers, with or without oral argument." Fusco v. Fusco, 186
N.J. Super. 321, 329 (App. Div. 1982).
This case presents the equitable principles implicated in an obligor's
application to emancipate a child and terminate child support retroactively, prior
to the filing date of the motion, and recoup child support overpayments made
from the date of emancipation. The parties agreed that S.B. should be
emancipated. The dispute arose over whether plaintiff was entitled to an
effective emancipation date of September 2008, when S.B. graduated from
college and married, or May 2016, when he filed his motion seeking
emancipation.
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New Jersey's anti-retroactivity statute generally prohibits retroactive
modification of an existing child support order to a date prior to the filing date
of a motion for such relief, or forty-five days earlier upon written notice.
N.J.S.A. 2A:17-56.23a. However, we have previously held that the anti-
retroactivity statute does not prevent a retroactive termination of child support
when a child is retroactively emancipated. See Bowens v. Bowens, 286 N.J.
Super. 70, 73 (App. Div. 1995) (permitting retroactive emancipation and
termination of child support where an obligor sought a retroactive cancellation
of unpaid arrearages following the date of emancipation); Mahoney v. Pennell,
285 N.J. Super. 638, 643 (App. Div. 1995) (permitting the emancipation and
termination of child support for two children two years apart in age, with each
emancipation effective retroactive to each child's eighteenth birthday and
holding "[w]here there is no longer a duty of support by virtue of a judicial
declaration of emancipation, no child support can become due").
Here, while not expressly acknowledging its authority to retroactively
emancipate a child and retroactively terminate child support, the court applied
the doctrine of laches to bar plaintiff's request for relief. Undoubtedly, a court
of equity may appropriately consider whether the doctrine of laches applies to
prohibit a claim for retroactive emancipation and recoupment of child support.
A-2806-16T2
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"Laches is an equitable doctrine which penalizes knowing inaction by a party
with a legal right from enforcing that right after passage of such a period of time
that prejudice has resulted to the other parent[] so that it would be inequitable
to enforce the right." L.V. v. R.S., 347 N.J. Super. 33, 39 (App. Div. 2002).
"The key ingredients" to the applicability of laches "are knowledge and delay
by one party," coupled with a detrimental "change of position by the other
[party]." Ibid. Thus, factors considered in determining whether to apply laches
include "'[t]he length of delay, reasons for delay, and changing conditions of
either or both parties during the delay.'" Ibid. (quoting Lavin v. Bd. of Educ. of
City of Hackensack, 90 N.J. 145, 152 (1982)). "While laches does not arise
from delay alone," inequity "more often than not, will turn on whether a party
has been misled to his harm by the delay." Ibid. (quoting Lavin, 90 N.J. at 153).
However, "unlike the periods prescribed by the statute of limitations," the
constraints of laches "are not fixed" but are flexible enough to accomplish
mutual fairness and equity in a given case. Lavin, 90 N.J. at 151. Factors to
consider to accomplish "mutual fairness and equity" when a party seeks
modification of a previously paid child support obligation prior to the motion
filing date were thoroughly discussed in Harrington v. Harrington, 446 N.J.
Super. 399, 411 (Ch. Div. 2016). There, the court identified a comprehensive
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list of considerations relevant to a court's analysis at a plenary hearing of "the
comparative equities of whether to retroactively modify child support." Id. at
411-12.
Those considerations include the length of time and reasons for the
obligor's delay in filing the motion; whether "the non-custodial parent
continue[d] to pay the same level of child support to the obligee" even after he
could have filed the motion; "any fraud or misrepresentation" by the custodial
parent that caused the obligor's delay in filing the motion; whether the "custodial
parent failed to communicate facts that would have led to emancipation" at an
earlier date and whether the non-custodial parent could "have nonetheless
otherwise easily obtained such information with a reasonable degree of parental
diligence and inquiry"; whether the "proposed retroactive modification of child
support" would be "unduly cumbersome and complicated" to accurately
calculate; whether the non-custodial parent seeks "only a credit," rather than "an
actual return of child support already paid to, and used by, the custodial parent
toward the financial expenses of the child living in the custodial parent's home";
and the potential of causing "an inequitable financial hardship" if the "custodial
parent who previously received [the] funds in good faith" were required to repay
the funds. Id. at 407-09.
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Here, the court's ability to consider these factors was constrained by the
fact that the court did not conduct a plenary hearing. While the court considered
plaintiff's eight-year delay in filing the motion, and rejected his claim that the
delay was due to his inability to locate defendant and serve her with the motion
papers, there was no consideration by the court of defendant's obligation under
the PSA to keep plaintiff informed of her place of residence. Further, it is
difficult to assess on appeal any financial hardship defendant would suffer if
ordered to reimburse plaintiff because the court only conclusively stated
defendant would suffer hardship without further explanation. See Ricci v. Ricci,
448 N.J. Super. 546, 574-75 (App. Div. 2017) ("Rule 1:7-4(a) requires a judge,
'by an opinion or memorandum decision, either written or oral, [to] find the facts
and state [all] conclusions of law . . . on every motion decided by a written order
that is appealable as of right,'" to avoid "'a disservice to the litigants, the
attorneys and the appellate court.'" (first quoting Fodero v. Fodero, 355 N.J.
Super. 168, 170 (App. Div. 2002) (second and third alterations in original); and
then quoting Curtis v. Finneran, 83 N.J. 563, 569-70 (1980))).
Notably, if defendant stopped receiving child support payments around
2006 or 2007, and did not receive additional payments until 2014 when she
received a $26,000 lump sum payment, reimbursing plaintiff would not require
A-2806-16T2
20
her returning money she received eight years prior and would undermine any
financial hardship claim or detrimental shift in position. Moreover, if defendant
received a lump sum child support payment in 2014 when her two older children
were emancipated in 2004 and 2005, and the youngest married in 2008, the court
may consider in assessing the comparative equities whether defendant received
a benefit to which she was not entitled. See Loro v. Del Colliano, 354 N.J.
Super. 212, 225-26 (App. Div. 2002) ("[A] custodial parent cannot[,] through
the guise of the incidental benefits of child support[,] gain a benefit beyond that
which is merely incidental to a benefit being conferred on the child.").
Plaintiff also argues that the court "erred in enforcing the pension
provision of the parties' PSA" because "the provision is objectively impossible
to fulfill." In light of our determination to remand for a plenary hearing to
address plaintiff's request for retroactive emancipation of S.B. and recoupment
of approximately $35,336 in child support overpayments, which he proposes to
use as an equitable offset to the $30,000 pension payout, we need not address
this argument at this time.
However, for the sake of completeness, we do note that on a
reconsideration motion, "'if a litigant wishes to bring new or additional
information to the [c]ourt's attention which it could not have provided on the
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21
first application, the [c]ourt should, in the interest of justice (and in the exercise
of sound discretion), consider the evidence.'" Cummings v. Bahr, 295 N.J.
Super. 374, 384 (App. Div. 1996) (quoting D'Atria, 242 N.J. Super. at 401).
Here, in his certification in support of his motion for reconsideration, plaintiff
asserted that he had been unaware of the January 11, 2001 letter from the
Division indicating that the pension provision in the PSA could not be
implemented as written. However, the court failed to consider that evidence.
On the remand, if necessary, we direct the court to be guided by the following
principles in considering plaintiff's defense of impossibility.
In interpreting matrimonial agreements, courts apply equitable principles
to ensure the agreement is fair and just, but apply contract principles to ascertain
an agreement's meaning. See Pacifico v. Pacifico, 190 N.J. 258, 265-66 (2007).
Supervening events that make performance of a contract impractical may excuse
performance. M.J. Paquet, Inc. v. N.J. Dep't of Transp., 171 N.J. 378, 389-90
(2002). We have previously stated that:
A successful defense of impossibility (or
impracticability) of performance excuses a party from
having to perform its contract obligations, where
performance has become literally impossible, or at least
inordinately more difficult, because of the occurrence
of a supervening event that was not within the original
contemplation of the contracting parties.
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[JB Pool Mgmt., LLC v. Four Seasons at Smithville
Homeowners Ass'n Inc., 431 N.J. Super. 233, 246 (App.
Div. 2013).]
Plaintiff also challenges the award of counsel fees in both the September
16 and the December 13, 2016 orders. Because the awards were primarily based
on the court's finding of bad faith on the part of plaintiff, and defendant
prevailing on her cross-motions, we vacate the awards pending resolution of the
issues on remand. Accordingly, we reverse and remand the matter to the Family
Part for a plenary hearing with discovery at the court's discretion. In remanding,
we make clear that nothing within this opinion forecasts any views on the merits
of these applications nor on the question of which party may be entitled to
prevail after a full and complete consideration on the merits. We also point out,
however, that denying plaintiff's reconsideration motion without prejudice, as
the court did here, is inconsistent with compelling him to comply with the
September 16, 2016 order.
Reversed and remanded. We do not retain jurisdiction.
A-2806-16T2
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