J.D. v. S.F. (FM-13-1808-13, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-1841-20
J.D.,
Plaintiff-Respondent/
Cross-Appellant
v.
S.F.,
Defendant-Appellant/
Cross-Respondent.
_________________________
Argued June 15, 2022 – Decided July 1, 2022
Before Judges Whipple, Geiger and Susswein.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FM-13-1808-13.
Donna L. Maul argued the cause for appellant/cross-
respondent (Ansell Grimm & Aaron, PC, attorneys;
Donna L. Maul, of counsel and on the briefs).
Michael J. Gunteski argued the cause for
respondent/cross-appellant (Senoff & Enis, attorneys;
Michael J. Gunteski, on the briefs).
PER CURIAM
This highly contentious and litigious matrimonial proceeding began in
2013. To provide context to this post-judgment appeal from four Family Part
orders, we begin by briefly discussing the underlying procedural history.
I.
Because we write primarily for the parties, who are familiar with the
extensive record in this case, we briefly summarize the underlying facts,
procedural history, and trial court decisions. We need not recount the detailed
factual findings and legal analysis expressed by the trial court in its oral and
comprehensive written decisions.
Plaintiff J.D.1 and defendant S.F. were married on April 24, 1999. The
parties have two children, S.D. (Sally), born in October 2004, and S.D. (Sandy),
born in October 2008. Defendant, who is fifty-one years old, is still employed
and has an annual income of approximately $83,000. Plaintiff, who is fifty-four
years old, voluntarily retired from his job at Merck and is not receiving pension
distributions or Social Security benefits.
1
We refer to the parties and their children by initials and pseudonyms to protect
their privacy. R. 1:38-3(d)(3), (9), (10), and (13).
A-1841-20
2
On April 24, 2013, defendant sought a domestic violence temporary
restraining order (TRO) against plaintiff after a verbal argument where plaintiff
cursed at defendant in front of their children. The TRO alleged other instances
of abuse including threats against defendant's life, as well as physical abuse,
alleging plaintiff slammed defendant against their bedroom door. The TRO led
to defendant leaving the marital home and filing for divorce.
On May 3, 2013, the parties entered into a consent order with civil
restraints that dismissed the TRO and granted defendant pendente lite custody
of the children. On July 18, 2013, the court awarded the parties joint legal
custody of the children, with defendant designated as parent of primary
residence (PPR) and plaintiff parent of alternate residence (PAR). Plaintiff's
parenting time was restricted to weekly supervised visits at Healing Hearts in
Ocean Township and public events. He was also granted daily FaceTime
communication with the children.
A dual final judgment of divorce (JOD) was entered on June 2, 2014. The
terms of a matrimonial settlement agreement (MSA) dated May 30, 2014, and a
mediation agreement dated March 17, 2014, were incorporated into the JOD.
A-1841-20
3
The MSA did not contain an anti-Lepis clause.2 The JOD did not resolve the
issues of custody and parenting time, and those issues were reserved pending a
custody evaluation report from each party. Both parties sought primary
residential custody of their daughters, but pending the results of the
psychological evaluations, they agreed to share joint legal custody, with
defendant remaining the PPR. They also agreed to contact each other through
email about major issues concerning the children's health, education, and
welfare. Plaintiff's parenting time was enlarged to include one supervised
weeknight dinner on Wednesdays, as well as attending the children's
extracurricular activities.
In 2014, Doctors Charles Diament and Ryan Montgomery released their
initial custody and parenting time evaluations, both containing similar
information.3 Dr. Diament recommended a co-parenting therapist and opined
that supervised parenting time was not necessary. A plan to gradually reduce
2
An anti-Lepis clause waives the parties' rights to modify their fixed payment,
or the established criteria of payment, for reasonably, foreseeable future
circumstances that would otherwise give rise to judicial modifications of their
agreement. Morris v. Morris, 263 N.J. Super. 237, 241 (App. Div. 1993).
3
The reports are not included in the record on appeal, presumably because they
were disseminated by the court under protective order. The reports could have
been included in a separate confidential appendix. See R. 2:6-1(a)(3).
A-1841-20
4
supervised parenting time until the children were fully adjusted to unsupervised
parenting time was recommended.
On February 6, 2015, the court appointed attorney Robin Jill Schneider as
parenting coordinator and directed her to make recommendations regarding the
health, education, and welfare of the children. The court ordered the parties to
attend parenting time mediation to establish a set parenting time schedule. The
court advised that if mediation was unsuccessful, either party could request a
plenary hearing.
On September 8, 2015, Dr. Diament's next report was released to counsel
under protective order. Dr. Diament again opined that supervised parenting time
was not necessary and that all supervision restrictions should be immediately
lifted, but that both parties were locked into positions against one another.
A March 28, 2017 case management order (CMO) stated that the issue of
child support when overnight parenting time was afforded remained unresolved
and the distribution of retirement assets still must occur. On October 20, 2017,
the court granted plaintiff unsupervised overnight parenting time from Saturday
at 9:00 a.m. to Sunday at 8:30 p.m. Plaintiff was also granted mid-week non-
overnight parenting time with Sandy on Wednesdays and with Sally on
Thursdays.
A-1841-20
5
An October 24, 2017 protective order released treatment information to
parenting coordinator Schneider and the children's medical professionals. A
follow up protective order was entered on December 5, 2017, but neither party
is in possession of the related report.
The Division of Child Protection and Permanency (DCPP) became
involved in June 2017 after being referred by Sandy's pediatrician. Additional
services were required, and the parties were required to comply with all services
recommended by DCPP. A determination was made that Sandy needed to begin
seeing a therapist. In 2017, Todd Traina, Psy.D. performed psychological
evaluations of the parties and Dr. Zuckerman performed a psychosocial
evaluation of Sandy. Both issued reports (the 2017 reports).
On February 15, 2019, the court ordered plaintiff responsible for the
children's unreimbursed medical expenses through February 18, 2018, in the
amount of $1,500.25.
On January 10, 2019, the court issued a pretrial order requiring the parties
to use the Our Family Wizard website for parenting-related communications and
with the consent of the parties, appointed Elise C. Landry, J.D., Ph.D. as a joint
custody expert. On August 17, 2019, Dr. Landry issued a comprehensive
A-1841-20
6
custody and parenting time evaluation report (the 2019 custody evaluation),
which was released to the parties' attorneys subject to a protective order.
After considering Dr. Landry's custody evaluation, the parties consented
to an October 21, 2019 order resolving all custody and parenting time issues.
The consent order substantially expanded plaintiff's parenting time, gradually
increasing it from no overnights to 52 overnights to 130 per year. This
concluded the litigation as to custody and parenting time. Except for the issue
of releasing the 2107 reports, the parties agreed to bifurcate the financial issues,
which were largely prompted by plaintiff's application to recalculate child
support premised on his increased overnight parenting time.
On October 21, 2019, the parties consented to a CMO regarding their
financial issues, which outlined and enumerated the remaining contested issues.
These included the issues of: (1) child support; (2) the children's extracurricular
activity and ancillary expenses; (3) uncovered medical arrears and garnishment
of plaintiff's probation account; (4) sanctions; (5) cell phone expenses for the
children; (6) resolution of retirement accounts; and (7) counsel fees. Although
custody and parenting time issues were resolved by the October 21, 2019
consent order, the order did not resolve plaintiff's request "for a recalculation of
A-1841-20
7
child support premised on his increased overnight parenting time with his
daughters" under the consent order.
A January 15, 2020 order referred the remaining financial issues to
economic mediation to resolve: (1) plaintiff's child support obligation from
October 21, 2019 to June 30, 2020, and from July 1, 2020 forward; (2)
defendant's obligation for the children's medical expenses from February 2018
to present; and (3) payment of defendant's equitable distribution share of
plaintiff's Allianz Life Ins. Co. of N. Am. individual retirement account (Allianz
IRA). The order also resolved the remaining issues enumerated in the October
21, 2019 CMO. Defendant appeals from paragraphs 14, 16, and 18 of the
January 15 order.
The parties participated in economic mediation, which was unsuccessful.
The case proceeded to a three-day video plenary hearing on September 25,
September 28, and October 5, 2020. Defendant presented an updated CIS and
list of 243 violations of litigant's rights before the hearing. Defendant contends
plaintiff did not provide an updated case information statement (CIS) at this time
and failed to include his pension and retirement package in his list of assets.
During the hearing, the parties consented to an October 5, 2020 order regarding
plaintiff's Allianz IRA.
A-1841-20
8
On November 2, 2020, the court issued an order and accompanying
statement of reasons. Importantly, the court found defendant's responses to
questions
were evasive and designed to re-direct the proceedings
and deflect. This was particularly so when confronted
on a variety of topics regarding the MSA including, but
not limited to, the waiver of alimony and its impact on
her assumption of the children's activities costs, the
lack of an anti-Lepis clause in the agreement, and her
assertions regarding her assumption of costs of the
mortgage [on] the marital home, despite language in the
MSA that [plaintiff] "shall convey all of his right, title
and interest in and to the marital home to [defendant]
upon signing of this Agreement" without the need for
any payment. On those issues, her non-responsiveness,
evasiveness and deflection demonstrated that her
assertions regarding the past were post-hoc, fabricated
rationalizations of the MSA constructed to advance her
present theory of the case.
In contrast, the court found plaintiff was credible and candid.
Among other things, the court ordered: (1) for the period of October 21,
2019, through June 30, 2020, child support was reduced from $1,200 per month
to $1,045 per month, based on 52 overnights per year; (2) effective July 1, 2020,
child support was reduced to $613 per month, based on 130 overnights per year;
(3) plaintiff to reimburse defendant for the following unreimbursed medical
expenses: $2,707.41 through October 22, 2019, $159.74 from October 22, 2019
through December 31, 2019, and $914 from January 1, 2020 through June 1,
A-1841-20
9
2020, with those amounts to be added to defendant's child support arrears; (4)
going forward after June 1, 2020, plaintiff would be responsible for thirty-eight
percent of unreimbursed medical expenses exceeding $250 per year per child;
(5) entering judgment against plaintiff for unpaid counsel fees and adding those
unpaid fees to his child support arrears. Defendant appeals from certain aspects
of the November 2, 2020 order.
The court conducted a hearing on counsel fees and costs on November 6,
2020, and issued an order and oral decision denying both parties' applications,
finding "any appropriate fees offset" each other.
Two consent orders were entered on December 9, 2020. In the first, the
parties agreed to comply with any medication protocols prescribed for Sandy.
In the second, the parties agreed to permit Noel S. Tonneman, the court-
appointed attorney for the children, to contact school and medical professionals
that provided services to Sandy.
Defendant moved for reconsideration of the January 15, 2020 order and
portions of the court's November 2, 2020 order. Defendant's main contention
was that the trial court mishandled plaintiff's assets and set child support too
low. Defendant also argued that she was entitled to a credit for paying the
children's activity and childcare costs.
A-1841-20
10
The court issued a January 25, 2021 order that granted reconsideration in
part. Relevant to this appeal, the court increased child support to $651 per
month effective July 1, 2020. It also adjusted his probation account by adding
a total of $61.50 for unreimbursed medical expenses incurred between October
22, 2019 and June 1, 2020 to plaintiff's child support arrears. This was based
on defendant being responsible for sixty-two percent and plaintiff thirty-eight
percent of the unreimbursed medical expenses. The court included plaintiff's
$140,000 settlement in the calculation of his net assets but denied considering
the value of his pension and retirement package in the calculation of his net
assets and child support obligation. The court denied defendant's request for
more specific findings establishing the child support obligation. The court
denied or found moot numerous other aspects of defendant's motion.
This appeal followed. Plaintiff cross-appealed from the child support
rulings contained in the November 2, 2020 and January 25, 2021 orders.
Defendant raises the following points for our consideration:
POINT I
THE TRIAL COURT ERRED IN DENYING THE
REQUESTED ANNUAL $5,000 ESCROW FOR THE
CHILDREN'S UNCOVERED HEALTH EXPENSES
IN LIGHT OF [PLAINTIFF'S] HISTORY OF NON-
PAYMENT AND REPEATED ENFORCEMENT
ISSUES OVER THE YEARS.
A-1841-20
11
POINT II
THE 2017 PSYCHOLOGICAL EVALUATION
REPORTS FOR EACH PARTY, AND [SANDY'S]
PSYCHOSOCIAL REPORT ALL UNDERTAKEN
DURING INVESTIGATION BY DCP&P SHOULD
BE RELEASED TO THE TREATING
PROFESSIONALS FOR EACH PARTY AND
[SANDY] IN THE INTEREST OF INFORMED,
QUALITY AND EFFECTIVE CONTINUITY OF
CARE AND PURSUANT TO N.J.S.A. 9:6-8.10a(b)(5),
(6), (11), (b)(16) AND (b)(23).
POINT III
THE COURT DISREGARDED CERTIFIED
STATEMENTS OF [DEFENDANT] ON THE ISSUES
OF THE SPECIFIED VIOLATIONS BY
[PLAINTIFF'S] FAILURE TO ADDRESS THEM AS
DETAILED IN [PLAINTIFF'S] CERTIFICATION,
ERRED IN FAILING TO IMPOSE SANCTIONS
(INCLUDING COUNSEL FEES) AGAINST
[PLAINTIFF].
POINT IV
THE COURT'S FAILURE TO HONOR THE GLOBAL
DIVORCE AGREEMENT INCORPORATED IN THE
FINAL JUDGEMENT OF DIVORCE RESULTED IN
UNDUE PREJUDICE TO [DEFENDANT] ON THE
ISSUE OF CHILD SUPPORT AND REALLOCATION
OF MEDICAL EXPENSES.
POINT V
THE COURT'S FAILURE TO ATTRIBUTE VALUE
TO [PLAINTIFF'S] PENSION FOR PURPOSES OF
ASSET RECOGNITION AND TO SUPPLEMENT
A-1841-20
12
THE INCOME COMPONENT OF HIS
COMPENSATION PACKAGE OF CHILD SUPPORT
CALCULATION, RESULTED IN UNJUST
ENRICHMENT OF [PLAINTIFF] IN THE COURT'S
ABOVE GUIDELINES CHILD SUPPORT
CALCULATION AT THE EXPENSE OF
[DEFENDANT] AND THE CHILDREN.
POINT VI
THE COURT'S FAILURE TO CONSIDER
[PLAINTIFF'S] PENSION VALUE AND $183,654.05
SEVERANCE/VACATION PAYOUT AS ASSETS
WHEN HE VOLUNTARILY LEFT HIS
EMPLOYMENT AND CHOSE NOT TO RESUME
OTHER EMPLOYMENT IS MATERIAL ERROR.
POINT VII
THE COURT'S FAILURE TO CORRECT
PARAGRAPHS 12 AND 15 OF ITS OPINION
DATED NOVEMBER 2, 2020 TO REFLECT
PROPER TOTAL UNEARNED AND EARNED
INCOME OF [PLAINTIFF] IS MATERIAL ERROR,
AS THE COURT'S FAILURE TO DECLARE
[PLAINTIFF'S] CASE INFORMATION
STATEMENTS.
POINT VIII
THE COURT'S DENIAL OF COUNSEL FEES
REQUIRES REMAND TO ADDRESS THE TOTAL
ASSETS OF EACH PARTY, INCLUSIVE OF
PENSION AND SAVINGS, AND MAKE
APPROPRIATE FINDINGS OF FACT UNDER
WILLIAMS V. WILLIAMS.4
4
Williams v. Williams, 59 N.J. 229 (1971).
A-1841-20
13
On cross-appeal, plaintiff argues:
THE TRIAL COURT FAILED TO REDUCE CHILD
SUPPORT BELOW THE GUIDELINES BASED ON
THE DISPROPORTIONATE ABOVE THE
GUIDELINES INCOME OF THE PARTIES AND
THE FACT THAT CHILD SUPPORT PAYOR
EARNS SIGNIFICANTLY LESS THAN THE
PAYEE.
II.
We affirm substantially for the reasons expressed by the trial court in its
comprehensive oral and written decisions. Our careful review of the expansive
record convinces us that the trial court's factual findings and credibility
determinations are supported by substantial credible evidence in the record , and
its legal conclusions are consonant with applicable legal principles. We add the
following comments.
A.
Our review of Family Part orders is limited. Cesare v. Cesare, 154 N.J.
394, 411 (1998). Appellate courts "review the Family Part judge's findings in
accordance with a deferential standard of review, recognizing the court's 'special
jurisdiction and expertise in family matters.'" Thieme v. Aucoin Thieme, 227
N.J. 269, 282-83 (2016) (quoting Cesare, 154 N.J. at 413). Thus, "findings by
the trial court are binding on appeal when supported by adequate, substantial,
A-1841-20
14
credible evidence." Cesare, 154 N.J. at 412-13 (quoting Rova Farms Resort,
Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Accordingly, 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.'" Cesare, 154 N.J. at 412 (quoting Rova Farms, 65 N.J. at
484).
"We invest the family court with broad discretion because of its
specialized knowledge and experience in matters involving parental
relationships and the best interests of children." N.J. Div. of Youth & Fam.
Servs. v. F.M., 211 N.J. 420, 427 (2012). We accord "great deference to
discretionary decisions of Family Part judges." Milne v. Goldenberg, 428 N.J.
Super. 184, 197 (App. Div. 2012). However, 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)).
Under N.J.S.A. 2A:34-23, the Family Part has the authority to modify
child-support "from time to time as circumstances may require." Spangenberg
v. Kolakowski, 442 N.J. Super. 529, 535 (App. Div. 2015) (quoting N.J.S.A.
A-1841-20
15
2A:34-23). "Our courts have interpreted this statute to require a party who seeks
modification to prove 'changed circumstances[.]'" Id. at 536 (alteration in
original) (quoting Lepis v. Lepis, 83 N.J. 139, 157 (1980)). The Family Part's
consideration of "changed circumstances" includes a change in the parties'
financial circumstances, whether the change is continuing, and whether the
parties' agreement "made explicit provision for the change." Ibid. (quoting
Lepis, 83 N.J. at 152).
Child support awards are governed by Rule 5:6A. The child support
guidelines "may be modified or disregarded by the court only where good cause
is shown." R. 5:6A. In this context,
[g]ood cause shall consist of a) the considerations set
forth in Appendix IX-A, or the presence of other
relevant factors which may make the guidelines
inapplicable or subject to modification, and b) the fact
that injustice would result from the application of the
guidelines. In all cases, the determination of good
cause shall be within the sound discretion of the court.
[Ibid.]
"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.
Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012)). "The trial court's 'award
A-1841-20
16
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.'" J.B.,
215 N.J. at 326 (quoting Jacoby, 427 N.J. Super. at 116).
A parties' settlement agreement or subsequent consent order may
reasonably limit the circumstances that may qualify as "changed" by including
an anti-Lepis clause. Quinn v. Quinn, 225 N.J. 34, 49-50 (2016). Anti-Lepis
clauses are subject to enforcement where the parties "with full knowledge of all
present and reasonably foreseeable future circumstances bargain[ed] for a fixed
payment or establish[ed] the criteria for payment[,] . . . irrespective of
circumstances that in the usual case would give rise to Lepis modifications of
their agreement." Morris, 263 N.J. Super. at 241. The Family Part will not
unnecessarily or lightly disturb such arrangements if the arrangements are "fair
and definitive[.]" Quinn, 225 N.J. at 44 (quoting Konzelman v. Konzelman, 158
N.J. 185, 193-94 (1999)). Nor may the court rewrite the agreement "or grant a
better deal than that for which the parties expressly bargained." Id. at 45.
B.
Guided by these principles, we reject defendant's argument that the trial
court erred by reducing the $1,200 per month child support obligation
established by the MSA based on the increase in overnight parenting time
A-1841-20
17
awarded to plaintiff, and the parties' respective income levels. Under the
October 2021 consent order, plaintiff's overnight parenting-time increased to
130 overnights per year. This significant increase in overnight parenting time
occurred years after the JOD, which incorporated the terms of the MSA, was
entered.
Defendant contends the reduction is prejudicial to her because she made
concessions as part of the global settlement agreement, including being
responsible for the entire cost of the children's extracurricular activities, which
allegedly exceed $40,000 annually, based on the amount of child support she
would receive. Defendant claims that but for the $1,200 per month child support
level, she would not have made the concessions. She argues that the court's
discretion is limited when considering overnight parenting-time adjustments.
Defendant contends the parties intended the child support level to be unaffected
by modification of the number of parenting-time overnights each parent
received. She further contends that reducing the level of child support impairs
her ability to afford household expenses while maintaining the children's
lifestyle. We are unpersuaded.
We first note that the child support obligation set by the MSA was an
above-the-guidelines level of support based on the parties' respective incomes.
A-1841-20
18
Plaintiff is now retired but not yet receiving pension distributions or Social
Security benefits due to his age. In contrast, defendant is still employed.
The parties were represented by counsel during the negotiation of the
MSA, the divorce action, and the negotiation of the consent order. The MSA
does not contain a child support anti-Lepis clause. Nor does it contain other
language indicating that an increase in plaintiff's overnight parenting time would
not be a basis to modify child support. Absent such language, child support
remained modifiable based on substantially changed circumstances. Plaintiff
was not barred or estopped from seeking the child support reduction.
Had the parties intended to render the amount of child support fixed and
to waive the right to seek modification based on a change in overnight parenting
time or other changed circumstance, an anti-Lepis clause to that effect could
easily have been included in the MSA. It was not. Defendant does not attack
the validity of the MSA—she seeks to enforce it as written. We too interpret
the MSA as written.
Notably, the JOD and incorporated MSA did not resolve the issues of
custody and parenting time, and those issues were reserved pending a custody
evaluation report from each party. Both parties were seeking primary residential
custody of their daughters. Defendant is therefore hard pressed to argue that the
A-1841-20
19
child support was fixed and not subject to modification due to significant
changes in overnight parenting time when custody and parenting time remained
at issue.
By any measure, the increase in overnight parenting time to 130 days per
year was a substantially changed circumstance. The annual number of overnight
parenting times is a factor under the child support guidelines shared parenting
schedules. See Child Support Guidelines, Pressler & Verniero, Current N.J.
Court Rules, Appendices IX-A(14)(c)(2) and IX-D to R. 5:6A,
www.gannlaw.com (2022). The shared parenting schedules apply when the
children spend at least twenty-eight percent of the overnights with the PAR.
Appendix IX-A(14)(c)(2). Here, the children now spend 130 overnights per year
with plaintiff, equaling approximately thirty-six percent of the total. Therefore,
the shared parenting schedule applies. Appendix IX-A(14)(c)(2).
The shared parenting schedules recognize that increasing the number of
overnights that the children spend with the PAR increases the PAR's "variable
costs (e.g., food, transportation, and some entertainment)" incurred by the PAR.
Appendix IX-A(13)(a)(2). In turn, it decreases the variable costs incurred by
the PPR.
A-1841-20
20
The guidelines assume that thirty-seven percent of the spending on
children is for variable costs. Appendix IX-A(14)(g)(1). Variable costs "are
apportioned based on each parent's percentage of overnights with child."
Appendix IX-A(14)(g)(3). Plaintiff's increased overnight parenting time
proportionately increases his variable costs. This impact remains a factor even
when the child support is set at an above-guidelines level. See Appendix IX-
A(20)(b) (explaining that if the parties combined annual net income exceeds
$187,200, "the court shall apply the guidelines up to $187,200 per year," then
and "a discretionary amount based on the family income" exceeding $187,200
"and the factors specified in N.J.S.A. 2A:34-23."); Caplan v. Caplan, 182 N.J.
250, 271 (2005) (stating that when considering the above-Guidelines amount,
"the trial court must consider the factors set forth in N.J.S.A. 2A:34-23(a) to
determine the amount of the supplemental support award and then combine that
amount with the guidelines-based award.").
Applying these principles to the facts in this case, the court properly
considered the substantial increase in plaintiff's overnight parenting time in
deciding his child support reduction application. Ignoring his increased
overnight parenting time would have been contrary to the guidelines and Caplan.
A-1841-20
21
The November 2, 2020 order reduced plaintiff's child support obligation
to $1,045 per month from October 21, 2019, through June 30, 2020, and
effective July 1, 2020, child support was further reduced to $613 per month.
Defendant claims plaintiff's pension should have been considered as
income because not doing so artificially understated his income for child support
purposes and resulted in unjust enrichment. Next, defendant argues that the
court did not consider plaintiff's significant ($183,654) severance and vacation
package with the pension, and that plaintiff voluntarily left his job. Defendant
further argues that the court made material errors in calculating the parties' total
and unearned income, as well as in not declaring plaintiff's case information
statement incomplete.
On cross-appeal, plaintiff argues that there should not be an increase in
his child support paid to defendant because the trial court found defendant to be
the higher earning spouse.
As correctly noted by the trial court, plaintiff is not able to access or
receive distributions on his pension until he is fifty-five years old. Plaintiff's
pension distributions will be included in his income for child support purposes
when he begins to receive them, which plaintiff acknowledges. This does not
constitute unjust enrichment. The court had already imputed an annual income
A-1841-20
22
of $151,000 to plaintiff. The record supports the court's conclusion that the
parties' actual and imputed income allow them to adequately support their
children and keep their lifestyles at a level that they are used to living. While
defendant contends the court did not list the specific assets in reaching this
conclusion, the court had, in fact, listed defendant's $600,000 home, $40,000
car, and her more than $50,000 in investments.
The MSA considered the parties' income in imposing an above-the-
guidelines child support obligation. The parties mutually agreed to waive
alimony and included an anti-Lepis clause that precluded an alimony award
based on a future change in circumstances. Under the MSA, defendant took
financial responsibility for the children's ancillary costs, including their extra-
curricular activities. The court aptly found that defendant was now trying to
ascribe these expenses to plaintiff even though they were her responsibility
under the MSA. Thus, defendant's argument that she should receive a $41,000
credit for such expenses is contrary to the MSA.
Regarding plaintiff's severance package from Merck, the court found that
those assets were considered in previous child support orders. The court
concluded that it would be illogical to both impute income to plaintiff in the
A-1841-20
23
amount of $151,000 and then add his severance pay, which would total more
than he earned while employed full-time.
The record demonstrates that the court considered the information
contained in both parties' CISs. The court amended its decision to include the
$140,000 settlement plaintiff received into his income. The court also realized
its error in relying on the earlier child support guideline calculations and
recalculated the child support to reflect the settlement, finding it added $25 per
week. The court also included an additional $27 attributable to health insurance
costs. These additions changed child support to $651 per month.
We discern no abuse of discretion. The trial court's lengthy,
comprehensive decision considered the submissions and relevant factors. The
court's findings are supported by substantial, credible evidence in the record.
We find no basis to disturb the child support determination or to remand for
recalculation.
C.
Defendant argues the trial court erred in denying her application to release
the Dr. Traina's 2017 psychological evaluation reports and Dr. Zuckerman's
2017 psychosocial evaluation report for Sandy. Defendant argues that Sandy's
current treating therapists, the parties' co-parenting therapists, and the parties'
A-1841-20
24
individual treating therapists should have access to Sandy's history and the
relevant psychological reports. We are unpersuaded.
Pursuant to N.J.S.A. 9:6-8.10a(a), information obtained by DCPP
pertaining to child abuse reports and investigations is to be kept confidential.
While the statute contains numerous exceptions, "nothing may be disclosed
which would likely endanger the life, safety, or physical or emotional well-being
of a child or the life or safety of any other person or which may compromise the
integrity of a department investigation or a civil or criminal investigation or
judicial proceeding." N.J.S.A. 9:6-8.10a(a). Defendant relies upon the
exceptions enumerated in N.J.S.A. 9:6-8.10a(b)(5), (6), (11), (16) and (23).
Those exceptions do not appear to apply here.
Subsection (b)(5) allows disclosure to public or private agencies.
Subsection (b)(6) allows disclosure to courts and the Office of Administrative
Law. Subsection (b)(11) allows disclosure to the Victims of Crime
Compensation Board. Subsection (b)(16) allows "[a] person being evaluated by
the [Department of Children and Families] or the court as a potential care-giver
to determine whether that person is willing and able to provide the care and
support required by the child[.]" Neither the Department of Children and
Families nor the court are currently conducting such an evaluation. Subsection
A-1841-20
25
(b)(23) allows disclosure to "[m]embers of a family team or other case planning
group formed by the [DCPP] . . . ." Here, the DCPP investigation is closed, and
custody issues were resolved by the October 21, 2019 order.
The 2017 reports are now dated. When issued, the children were nine and
thirteen years old, respectively. They are now thirteen and seventeen years old.
In the intervening years, the parties have resolved their custody dispute through
the October 2019 consent order. Parenting time was also resolved. The court
determined the 2017 reports were no longer relevant to deciding custody. We
agree since there was no pending custody or parenting time application when
the court reached that conclusion.
Moreover, the parties' attorneys are in possession of Dr. Landry's
comprehensive, ninety-nine-page custody evaluation report, which recounts in
detail the prior evaluations, diagnoses, treatment recommendations, and therapy.
See State v. Cusick, 219 N.J. Super. 452, 455-59 (App. Div. 1987) (holding that
the trial court's refusal to grant defendant access to files of child sexual assault
victim maintained by the Division of Youth and Family Services and child
treatment center, after trial court conducted in-camera inspection and concluded
information was available elsewhere and that information sought was not
A-1841-20
26
determinative of any issue before the court, did not violate defendant's state or
federal constitutional rights).
Notably, defendant does not contend, much less demonstrate, that Sandy's
treating therapists, the parties' co-parenting therapists, or the parties' treating
therapists have expressed the need for the 2017 reports to facilitate their therapy
of Sandy or the parties. Defendant's unsubstantiated need for the reports is at
best speculative. For these reasons, we discern no abuse of discretion or other
basis to disturb paragraph sixteen of the January 15, 2020 order.
D.
Defendant further argues that the trial court disregarded her violation of
litigant's rights application because it imposed sanctions against her. We
disagree.
Rule 1:10-3 provides that a litigant may seek relief for violation of
litigant's rights by application in the action. The court may award counsel fees
to a party granted relief under the rule. "In family actions, the court may also
grant additional remedies as provided by [Rule] 5:3-7." R. 1:10-3.
Decisions on sanctions imposed for violating a court order are addressed
to the discretion of the trial judge. Kornbleuth v. Westover, 241 N.J. 289, 300
(2020). "Relief under [Rule] 1:10-3, whether it be the imposition of
A-1841-20
27
incarceration or a sanction, is not for the purpose of punishment, but as a
coercive measure to facilitate the enforcement of the court order." A.J. v. R.J.,
461 N.J. Super. 173, 181 (App. Div. 2019) (quoting Ridley v. Dennison, 298
N.J. Super. 373, 381 (App. Div. 1997)).
Although defendant claims the court ignored all the 243 violations that
she asserted against plaintiff, the record reflects the court considered her
allegations. Indeed, the January 15, 2020 order specifically addressed the
violations and imposed sanctions on plaintiff, to be paid directly to defendant's
counsel. The court noted that several of the entries on the spreadsheets
submitted by defendant refer to plaintiff's "previously adjudicated violations for
failure to pay for the children's medical expenses." The court further found that
certain actions and statements by plaintiff were "inexcusable," including cursing
at defendant and calling her names. The court also found that plaintiff failed to
pay previously ordered medical arrears, harassed and threatened defendant in
violation of their MSA, and failed to submit the name of a therapist for the
children. As a result, the court ordered plaintiff to pay $1,500 to defendant's
counsel, along with enforcing the unpaid medical expenses.
In part, defendant seemingly seeks to sanction plaintiff to punish him for
things he did that she did not agree with. As we have noted, relief under Rule
A-1841-20
28
1:1-3 is not aimed at imposing punishment but should always consider the best
interests of the children. A.J., 461 N.J. Super. at 181. The sanctions imposed
were not an abuse of discretion.
E.
Finally, defendant also argues that a remand is required to address the total
assets of each party, including pension funds and investments, to provide a more
accurate financial picture allowing the court to make appropriate findings of fact
regarding counsel fees. Defendant contends plaintiff submitted an incomplete
CIS that did not disclose his pension assets and severance package.
"[T]he award of counsel fees and costs in a matrimonial action rests in the
discretion of the court." Williams, 59 N.J. at 233. We will not disturb a counsel
fee decision in matrimonial matters absent a showing of "an abuse of discretion
involving a clear error in judgment." Tannen v. Tannen, 416 N.J. Super. 248,
285 (App. Div. 2010).
The trial court performed an analysis of the pertinent factors and found
each party was able to pay their own counsel fees. The court also found that
neither party was acting in bad faith, although they "were somewhat less than
reasonable at . . . various times." The court acknowledged that plaintiff has been
ordered to pay counsel fees twice before and that his use of self-help was
A-1841-20
29
impermissible. The court noted that the main issue was child support, not the
Allianz IRA or medical expenses. The court considered the reasonableness of
the parties at various stages of the proceedings. The court compared the amount
of child support involved to the amount of counsel fees sought by defendant.
While the hourly rate was found reasonable, the court found the amount of
counsel fees sought for the child support aspect of the proceedings were
unreasonable. The court also considered the relative success of the various
applications and the relief obtained. The court ultimately determined that each
party was entitled to an award of twelve hours of attorney time, so it was a wash.
The trial court made adequate findings. The record supports those
findings. Applying our deferential standard of review, we find no abuse of
discretion. A remand is not necessary.
F.
Defendant argues the trial court erred by denying her request to establish
a $35,000 escrow account for the children's medical expenses. We disagree.
N.J.S.A. 2A:34-23 permits a family court, after a divorce, to "make such
order . . . as to the care, custody, education and maintenance of the children . . .
including, but not limited to, the creation of trusts or other security devices, to
assure payment of reasonably foreseeable medical and educational expenses."
A-1841-20
30
Un-reimbursed medical expenses "are intended to provide essential benefits to
the parties' children." Gotlib v. Gotlib, 399 N.J. Super. 295, 306 (App. Div.
2008) (citing L.V. v. R.S., 347 N.J. Super. 33, 41 (App. Div. 2002)). However,
"[a] parent from whom financial contribution is sought nevertheless retains the
right to challenge the reasonableness of the medical expenses." Ibid.The trial court found plaintiff owed medical reimbursement. He admitted
the arrearages and did not object to paying them. The medical reimbursement
arrears were added to his child support probation account. In addition, the court
had previously awarded defendant a $1,500 counsel fee related to the medical
reimbursement arrearages. The trial court found that plaintiff's proposal for a
quarterly compilation of expenses to be more practical than an escrow account.
We review the denial of equitable remedies for abuse of discretion. Sears
Mortg. Corp. v. Rose, 134 N.J. 326, 354 (1993). See also Kaye v. Rosefielde,
223 N.J. 218, 231 (2015) (noting that a Chancery judge has broad discretionary
power to adapt equitable remedies to the specific circumstances of a case). We
discern no such abuse of discretion.
G.
Defendant also appeals from the partial denial of her motion for
reconsideration. Rule 4:49-2 permits reconsideration if the trial court has either
A-1841-20
31
"expressed its decision upon a palpably irrational basis decision" or "it is
obvious that the court either did not consider, or failed to appreciate the
significance of probative, competent evidence." Kornbleuth, 241 N.J. at 301
(quoting Guido v. Duane Morris LLP, 202 N.J. 79, 87-88 (2010)). "We will not
disturb the trial court's reconsideration decision 'unless it represents a clear
abuse of discretion.'" Ibid. (quoting Hous. Auth. of Morristown v. Little, 135
N.J. 274, 283 (1994)).
The trial court granted reconsideration in part. For the reasons we have
already discussed, and the reasons expressed by the trial court, the denial of the
remaining aspects of defendant's motion for reconsideration was not a clear
abuse of discretion.
To the extent we have not addressed them, any remaining arguments
raised by defendant lack sufficient merit to warrant discussion in a written
decision. R. 2:11-3(e)(1)(E).
III.
In his cross-appeal, plaintiff argues the trial court erred by not reducing
child support below the guideline amount even though plaintiff earns
significantly less than defendant. He contends that if the parent receiving child
support is earning more than the payor, there should be no upward modification
A-1841-20
32
from the guidelines. Plaintiff asserts that the higher level of support he was
ordered to pay impairs his ability to provide his daughters with the lifestyle he
could otherwise provide during his parenting time.
Plaintiff cites no case law in support of his argument other than cases that
discuss considering the best interests of the children when determining child
support, including Musico v.Musico, 426 N.J. Super. 276 (Ch. Div. 2012). In
Musico, the court held:
[W]hen parties have previously and knowingly entered
into an above-guideline child support agreement, and
when there is a subsequent change of circumstances
warranting a child support review, the guidelines must
initially be applied. However, the support analysis does
not artificially end with the guidelines alone. Rather,
the prior agreement and present status quo may serve as
additional equitable factors for the court to consider in
determining a new child support figure, which may
remain above the guidelines as equity requires.
[Id. at 279.]
Plaintiff also relies on the child support factors enumerated in N.J.S.A. 2A:34-
23(a), including the "[n]eeds of the child" and the "[s]tandard of living and
economic circumstances of each parent[.]" N.J.S.A. 2A:34-23(a)(1), (2).
As noted by plaintiff, the trial court discussed the children's "entitlement
to share in a parent's good fortune[,]" citing Isaacson v. Isaacson, 348 N.J. Super.
560, 582 (App. Div. 2002). (Aa2966). In Isaacson, we discussed the "careful
A-1841-20
33
balancing of interests reflecting that a child's entitlement to share in a parent's
good fortune does not deprive either parent of the right to participate in the
development of an appropriate value system for a child." Ibid.Although the principles espoused by plaintiff may be important in certain
cases, we do not view the financial circumstances in this case to require a further
reduction in child support to meet the best interests of the children. Plaintiff's
child support obligation is not driving him into financial ruin. Moreover,
plaintiff chose to retire from Merck at age fifty-one. To our knowledge he has
not returned to employment and will soon begin receiving pension benefits. We
also note that defendant pays for the children's costly extra-curricular activities.
We discern no basis to disturb the child support order under plaintiff's theory.
Affirmed.
A-1841-20
34