DOUGLAS J. KLEIN v. REBECCA FEIT-KLEIN (FM-07-0297-17, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-2454-20
DOUGLAS J. KLEIN,
Plaintiff-Respondent,
v.
REBECCA FEIT-KLEIN,
Defendant-Appellant.
_________________________
Submitted May 9, 2022 – Decided July 5, 2022
Before Judges Rothstadt and Natali.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FM-07-0297-17.
Lentz & Gengaro, LLP, attorneys for appellant
(Christopher P. Gengaro, of counsel and on the brief).
Respondent has not filed a brief.
PER CURIAM
In an earlier unpublished opinion, we considered defendant Rebecca Feit-
Klein's appeal from a Family Part judge's denial of her Rule 4:50-1 motion to
vacate the default judgment of divorce (JOD) that was entered against her in
favor of plaintiff Douglas J. Klein. See Klein v. Feit-Klein (Klein I), No. A-
2786-18 (App. Div. May 15, 2020) (slip op. at 1-2). After reviewing the matter,
"[w]e affirm[ed] the denial of relief under Rule 4:50-1(a), but remand[ed] for a
more complete statement of reasons from the motion judge about the denial of
relief under Rule 4:50-1(f)." Id., slip op. at 2.
In response to our remand, the motion judge entered an order on March
25, 2021 reasserting his denial of any further relief to defendant for the reasons
he placed on the record on the same date. On appeal from that order, defendant
now contends the judge abused his discretion by not granting her relief and
doing so without holding a plenary hearing.
We have considered defendant's contentions in light of the record and the
applicable principles of law. We affirm the motion judge's order, except as to
the issue of the judge's original award of a credit to plaintiff for payment of the
parties' now emancipated children's college expenses. As to that issue, we are
again constrained to remand the matter to the motion judge for further
explanation because, despite our earlier remand, the judge did not address the
issue.
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I.
The facts relating to the parties and the earlier procedural history of this
matter that led to defendant being defaulted for her failure to file a case
information statement (CIS), the subsequent entry of the default JOD, and the
judge's orders addressing defendant's motions for relief, are well known to the
parties and set forth at length in our earlier opinion. Klein I, slip op. at 2-13.
They need not be repeated here for our purposes. Instead, we review our
directions to the motion judge and his response that culminated in the order now
under appeal.
As we explained in our earlier opinion, it was unclear to us why, in
response to defendant's post judgment motion, the judge modified defendant's
obligations under the JOD to pay all of the parties' children's college expenses,
but he did not modify any of the other financial issues which, like the cost of
college, was based on defendant's failure to file a CIS. We also directed that the
judge explain why he still required defendant to reimburse plaintiff $93,684.44
towards the college expenses that plaintiff already paid, without allocating that
amount in accordance with his order granting defendant relief from judgment by
directing future college expenses be paid in accordance with the parties' income
ratio. We specifically explained the following:
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We conclude that because the motion judge's oral
decision never addressed any issue other than education
expenses, we cannot address defendant's contentions on
appeal. For example, we note that in originally
determining that alimony was not warranted in the JOD,
the judge cited to the same reason for originally
requiring defendant to pay all of the educational
expenses – defendant's failure to file her CIS. Although
upon reconsideration, the judge found it was "unjust,
oppressive or inequitable" just to rely on her default for
education expense purposes, he never conducted the
same analysis when considering alimony or any of the
other issues addressed in the JOD. Without a more
complete explanation of the judge's decision as
required by Rule 1:7-4, we cannot perform our
appellate function. For that reason, we are constrained
to remand this issue to the motion judge for a more
expansive statement of reasons supporting his decision
to deny defendant further relief under Rule 4:50-1(f).
We are also compelled to remand for clarification
of the motion judge's reasons for still requiring
defendant to reimburse plaintiff $93,684.44 for college
expenses after reopening the JOD to amend it to
provide for a reallocation of educational expense. The
judge's order amending the college expense does not
mention the original credit and why it was not subject
to the reallocation or, for that matter, why it had to have
been paid from defendant's equity in the home, rather
than the education funds, if warranted, especially since
the judge and plaintiff stated that education expenses
were to be paid from financial aid, then the funds,
before either party would be liable for education
expenses.
[Klein I, slip op. at 19-20 (emphasis added).]
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In response to our remand, the motion judge, after considering the parties'
submissions1 and oral arguments, on March 25, 2021, placed his explanation on
the record for denying defendant's Rule 4:50-1(f) motion on the issues of
alimony, equitable distribution, attorney's fees, and health insurance coverage.
As to alimony, the judge "w[as] not . . . inclined to grant relief under
[Rule] 4:50-1(f) [from] the provisions of the [JOD] that . . . denied alimony to
either party" because the record and plaintiff's credible testimony demonstrated
that the parties "lived a relatively modest lifestyle," as illustrated by their modest
vehicles and that they did not vacation frequently. He found that both parties
and their lifestyle demonstrated that they were "very dedicated" to their
children's development and education. Although he found that "there was some
income, . . . in looking at the more expansive reasons for . . . not finding that the
alimony issue was unjust, oppressive, or inequitable, [the judge] did not see in
1
We glean from the record that no additional evidence was submitted to the
court after our remand. At the beginning of the motion judge's March 25, 2021
decision he states that he considered the parties' "written submissions with
respect to their positions on the remand and on October 23[], 2020, the [c]ourt
had heard oral argument on the issue of the remand." Defendant did not include
those submissions or the transcript from the oral argument. We assume she did
not include those items in her appendix because they contained no new evidence
and only referred to the parties' legal arguments and were excluded from the
appendix under Rule 2:6-1(a)(2).
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the record any basis to say that the consequences flowing from [defendant's]
neglect in providing the [CIS] was somehow unjust, oppressive or inequitable."
Addressing equitable distribution, the motion judge reiterated his
findings, based on plaintiff's credible testimony, that defendant's inheritance
was not a marital asset, and that there were marital assets in the form of
retirement accounts and their marital residence. In applying the Rule 4:50-1(f)
standard, the judge explained that he did not see any "basis to exercise [his ]
discretion" to reconsider the JOD. He shared the following:
[T]he [c]ourt, in looking at applying the [Rule]
4:50-1(f) standard, did not find . . . that there [was]
something unjust, oppressive, or inequitable about
parties who had, over the course of the marriage[,] . . .
each contributed and each shared in the raising . . . of
their children through school and high school and . . .
into college and adulthood, where the nature of the
assets or . . . any of the other detailed findings that . . .
there was any[thing] unjust, oppressive, or . . .
inequitable about an equitable distribution scheme that
takes the assets and liabilities . . . and splits the equity
50/50.
Regarding the award of attorney's fees to plaintiff, the judge noted that he
"was guided by . . . Rule 5:3-5" and "made findings based on the evidence . . .
in the record before [him] with respect to . . . each of the factors under [the
Rule]." The judge reiterated his analysis of the factors and corresponding
findings that were placed on the record on June 11, 2018. He then considered
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his findings "from the perspective of Rule 4:50-1(f)" and noted that he "did not
find that there's anything unjust, oppressive, or inequitable about having granted
the fee award" to plaintiff. The judge explained as follows:
The . . . fee award was based . . . on hours spent,
reasonable rates, and bringing the matter to fruition . . .
and to some extent, . . . the greater weight the [c]ourt
gave factor three may have a little more import with
respect to . . . Rule [4:50-]1(f) analysis, because the
[c]ourt did . . . make different findings with respect to
the parties as to the good faith in which they had
proceed[ed] during the matrimonial proceeding and
found that . . . plaintiff here had essentially done that
which was required and expected of him to do to move
the case forward to a point where either it would go to
consensual resolution . . . or a judicial determination.
And . . . the [c]ourt made the opposite finding
with respect to . . . defendant, that even though given
the multiple opportunities and . . . it was made clear the
effect of continued . . . non-participation, that . . .
defendant continued in that course.
....
[T]he [c]ourt did not see . . . that . . . defendant
had shown that there's anything unjust, oppressive, or
inequitable about the even manner in which the [c]ourt
had gone about reaching its determination. . . .
....
So the [c]ourt did not see a basis to grant relief
under . . . Rule 4:50-1(f) on the . . . legal fees.
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As to health insurance, the motion judge noted that defendant did not
demonstrate that directing her to maintain health insurance coverage for the
unemancipated children through her employer with no contribution from
plaintiff was unjust, oppressive, or inequitable. He explained that he found that
the JOD provision fairly "strikes a balance between the two [parties and] their
responsibilities to the children's health insurance" because (1) the parties split
fifty/fifty for any unreimbursed medical costs, (2) the order directed plaintiff to
provide the supplemental coverage for dental and vision, and (3) if defendant
was later unable to provide health insurance coverage through her employer,
then plaintiff was solely responsible for providing health insurance, whether or
not he can obtain it through his employer and without contribution from
defendant.
The judge did not address the credits awarded to plaintiff, particularly the
previously ordered $93,684.44 reimbursement to plaintiff for college education
expenses to be paid from defendant's equity in the home. Klein I, slip op. at 20.
On the same day, the judge issued an order consistent with his oral
findings and noting that he "found no basis to further amend or reconsider any
portion of the [JOD] entered June 11, 2018, as modified by order dated[]
February 15, 2019." This appeal followed.
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II.
Initially, we must determine whether the motion judge complied with our
remand instructions. On remand, "[i]t is beyond dispute that a trial judge has
the responsibility to comply with pronouncements of an appellate court."
Tomaino v. Burman, 364 N.J. Super. 224, 232 (App. Div. 2003) (citing Reinauer
Realty Corp. v. Borough of Paramus, 34 N.J. 406, 415 (1961)). Adherence to
instructions on remand "precisely as it is written" is the "peremptory duty of the
trial court." Id. at 233 (quoting Jersey City Redevelopment Agency v. Mack
Props. Co. # 3, 280 N.J. Super. 553, 562 (App. Div. 1995)). While trial judges
have the "privilege[] to disagree," they are "bound to follow the rulings and
orders of the Appellate Division; they are not free to disregard them." Ibid.(citing Kosmin v. N.J. State Parole Bd., 363 N.J. Super. 28, 40 (App. Div.
2003)).
We conclude that the judge complied with our remand instructions except,
as already noted, as to the issue of the credit awarded to plaintiff. Given the
thoroughness of his oral opinion on remand, it seems that the failure to explain
this particular issue was an oversight. Nevertheless, we are constrained to
remand again for the explanation we requested in our earlier opinion as the
record is still unclear on how and under what standard the judge, as we
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previously stated, "requir[ed] defendant to reimburse plaintiff $93,684.44 for
college expenses after reopening the JOD to amend it to provide for a
reallocation of education expense" "and why [that credit] was not subject to the
reallocation or, for that matter, why it had to have been paid from defendant's
equity in the home, rather than the education funds." Klein I, slip op. at 20.
III.
As to the remaining issues, now that we have the benefit of the judge's
reasoning addressing the other economic issues, we can consider defendant's
challenge to the order denying her further relief. We do so applying the same
legal principles specifically set forth in our earlier opinion as related to our
review of the judge's denial of relief under Rule 4:50-1(f) from the default JOD
that was entered based on defendant's failure to file a CIS. Id., slip op. at 13-
16. We only reiterate the burden was on defendant to "demonstrate the
circumstances are exceptional and enforcement of the judgment or order would
be unjust, oppressive or inequitable." Johnson v. Johnson, 320 N.J. Super. 371,
378 (App. Div. 1999). "[T]he correctness or error of the original judgment,"
however, "is ordinarily an irrelevant consideration." Pressler & Verniero,
Current N.J. Court Rules, cmt. 5.6.1 on R. 4:50-1(f) (2022).
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A.
On appeal, defendant now argues that "[w]hen a judgment [is] entered by
default, an application to vacate is 'viewed with great liberality, and every
reasonable ground for indulgence is tolerated to the end that a just result is
reached.'" In this regard, she contends that she "cured all defaults by filing her
CIS [with] all required documents, and filed her application to vacate the
[d]efault [JOD] within a mere thirty days," which "demonstrated that the terms
of the [d]efault [JOD] were extraordinarily unjust and inequitable." Defendant
asserts that the motion judge's failure to modify provisions of the JOD "was
erroneous and an abuse of discretion" and "should be vacated" because, as she
contends, she satisfied the criteria for vacating the JOD as to each economic
issue. We summarize her contentions by subject matter as follows.
Defendant's Pension and Retirement Account
Defendant contends that this provision in the JOD is "onerous and
inequitable" because "[n]o consideration was given to the overall assets and
financial situations of the parties, and whether requiring [defendant] to give up
[fifty percent] of her [p]ension and 403(b) account represents a fair and just
equitable distribution of the assets." In addition, she contends that "[t]here is
also no way to determine whether [p]laintiff has properly accounted for all his
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retirement assets, and properly determined the portion of [defendant's]
retirement assets that are marital, as opposed to pre-marital and exempt."
Alimony
Defendant argues that she is entitled to alimony based on the disparity of
the incomes between the parties, their long-term marriage, and other
circumstances. She explains that she left her tenured position in October 1998,
after fourteen years of employment, to care for their youngest child who "was
born with critical health issues and needed extra care due to her disabilities."
According to defendant, the parties "jointly agreed that [defendant] should leave
her [employment] to take care of the children, while [p]laintiff continued to
work and provide for the family." Thereafter, she returned to work but the
"parties agreed that she should look for a job that provided the flexibility
necessary for her to continue to provide support for the children, especially
[their daughter]."
According to defendant, her current yearly salary is approximately
$48,000 and it is "inadequate to sustain her ability to maintain a basic lifestyle"
and because she is sixty-two years old, "it is unrealistic for her to reestablish a
career." She also notes that "[p]laintiff has always been the breadwinner and
since his abandonment of the [p]arties' joint household, the financial status quo
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was never maintained." Thus, because of "these circumstances, and given the
disparity of incomes between the [parties]," plaintiff contends that she is "clearly
entitled to an award of alimony."
Health Insurance for the Children
Defendant asserts that plaintiff should be responsible for providing health
coverage for the children because her "low salary [will be] greatly diminished if
she is required to maintain a family plan." She notes that plaintiff, under his
employment agreement, can provide health insurance for the children and
contends that it would be "fair[]" for him to provide the cover age because she
"cannot afford to carry this responsibility without any contributions from
[p]laintiff."
Unreimbursed Health Expenses for Children
Defendant argues that although the judge directed each party to be
responsible for fifty percent of the children's health-related expenses, "he did
not consider the significant expenses that [she] already paid." Thus, she argues
that plaintiff should be required to reimburse her for past medical expenses that
plaintiff did not submit during the June 11, 2018 default hearing.
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College and the Daughter's Private School Expenses
According to defendant, the parties agreed that because of their daughter's
"special needs," she should attend private school. She contends that the default
hearing did not address this issue or the fact that she paid the daughter's entire
private education and related therapies without defendant's contribution.
As to the issue of the credit, about which we are again remanding,
defendant notes that the judge required her to "reimburse for [one hundred
percent] of the funds [that plaintiff] allegedly paid toward the college education
for the [children]" in the amount "of $93,684.44 from her share of the net equity
in the former marital residence." First, she contends that plaintiff did not pay
approximately $22,000 for college costs. Second, she contends that since the
parties share joint responsibility for their children, "[p]laintiff should be
required to share in the expense of college with percentages of responsibility
being equitable based on the parties' incomes and financial circumstances."
Last, she contends that "[i]t is inequitable to saddle one parent, who earns just
$48,000 per year, with this responsibility."
Sale of Marital Residence and Related Costs
Defendant contends that the equal division of proceeds and the award of
credits to plaintiff should be vacated. She asserts that the award is "lopsided"
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and "only accounts for one party's contribution of the expenses of the marital
home." She explains that she paid "for a large share of many of the expenses of
the marital residence and should be granted the opportunity to provide a detailed
accounting of her contributions for which she should be entitled to credit."
Marital Debts
In directing that the marital debt be paid from the proceeds of the sale of
the marital home under the JOD, defendant argues that the motion judge did not
consider "the fact that [she] incurred debt in her name that is marital debt and
should be a joint marital obligation of the parties."
Equalization of Bank Accounts
In directing plaintiff to liquidate the joint bank accounts and equally
dividing the proceeds under the JOD, defendant complains that she "has no way
of knowing if the assets in [the joint bank] accounts accurately reflect an
equitable division of all marital assets and all expenses." Instead , she explains
that the assets in these bank accounts "cannot be distributed in a vacuum, but
must be included in a comprehensive plan of equitable distribution that is fair to
both parties."
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Attorney's Fee
In awarding legal fees to plaintiff, defendant contends that the motion
judge did not give any consideration "to the complete picture including
financial, residential, and other circumstances."
B.
We are not persuaded by any of defendant's contentions. We conclude
that despite her contentions before the motion judge and now on appeal,
defendant failed to satisfy her burden. See Johnson, 320 N.J. Super. at 378 ("The
movant must demonstrate the circumstances are exceptional and enforcement of
the judgment or order would be unjust, oppressive or inequitable."); see also
Badalamenti v. Simpkiss, 422 N.J. Super. 86, 103 (App. Div. 2011) (same).
Significantly, defendant failed to ever justify with any competent
evidence a reason for her repeated failure to file a CIS as required by court rule
and repeatedly by the motion judge prior to the default hearing. She never
established exceptional circumstances that would support the motion judge
granting her relief.
As to the delineated objections defendant raises to the judge's decision on
the parties' economic issues, as already noted, we conclude he sufficiently
explained his findings and reasons for denying relief under Rule 4:50-1(f). The
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judge fairly and methodically went through all the applicable statutory and court
rule factors to fairly determine all of the economic aspects of the parties' divorce,
despite defendant's non-participation and failure to provide her CIS. The judge
made his determination after considering the information before him and
assessing plaintiff's credibility. We discern no abuse of the judge's discretion.
Defendant, instead of demonstrating an exceptional circumstance or
unjust, oppressive or inequitable results, has only proffered what sh e believes
she might have demonstrated at trial had she filed her CIS. That proffer did not
satisfy her burden because even if any portion of the JOD was erroneous, absent
proof that the results were unjust, oppressive or inequitable, we have no cause
to disturb the judgment. See Pressler & Verniero, cmt. 5.6.1. on R. 4:50-1(f)
("[T]o obtain relief under this subsection, the movant must ordinarily show that
the circumstances are exceptional and that enforcement of the order or judgment
would be unjust, oppressive or inequitable." (emphasis added) (citing US Bank
Nat'l Ass'n v. Guillaume, 209 N.J. 449, 484 (2012))).
In light of our determination, we need not address defendant's contention
that a plenary hearing was warranted.
Affirmed in part and remanded in part for further proceedings consistent
with our opinion. We do not retain jurisdiction.
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