LINDA L. FELTON VS. GARY M. FELTON (FM-15-0758-16, OCEAN 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NOT FOR PUBLICATION WITHOUT THE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-1973-19T1
LINDA L. FELTON,
Plaintiff-Appellant,
v.
GARY M. FELTON,
Defendant-Respondent.
_________________________
Submitted September 21, 2020 – Decided October 1, 2020
Before Judges Mayer and Susswein
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County, Docket
No. FM-15-0758-16.
Richard R. Mazzei, attorney for appellant.
Respondent did not file a brief.
PER CURIAM
Plaintiff Linda L. Felton appeals from a December 6, 2019 order regarding
her motion to enforce litigant's rights and a cross-motion by defendant Gary M.
Felton to enforce litigant's rights. We affirm.
The parties are familiar with the facts as set forth in our decision in Felton
v. Felton, No. A-4433-17 (App. Div. Aug. 23, 2019) (Felton I). Slip op. at 1-2.
In Felton I, we vacated and remanded an April 20, 2018 order "for recalculation
of the amount to which plaintiff [was] entitled" based on defendant's military
pension. Id. at 1. We concluded "the first step in the process was the calculation
of defendant's retirement benefit using the military point system, and the second
step was the application of the Marx [v. Marx, 265 N.J. Super. 418 (Ch. Div.
1993)] formula to that amount as agreed to by the parties in the [property
settlement agreement (PSA)]." Id. at 6. We "vacated [the April 20, 2018 order]
and the matter [was] remanded to the Family Part for further proceedings . . . ."
Ibid. Nothing in Felton I instructed the judge on remand to apply the
percentages as sought by plaintiff for distribution of defendant's military
pension because that determination was left to the judge.
On September 30, 2019, the Family Part judge ordered defendant's
pension be divided in accordance with Felton I and set a new return date for
plaintiff's application for attorney's fees. Just ten days later, plaintiff filed a
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motion seeking the following relief: placing defendant in custody due to his
continued contempt of court for failure to pay counsel fees in accordance with a
December 8, 2017 order and an April 20, 2018 order; requiring defendant
reimburse plaintiff in the amount of $5,772, representing the difference between
thirty-five percent of his pension and forty-two and one-half percent of his
pension from the date of the PSA to the present; compelling defendant to pay
$156 per month, representing the difference between thirty-five percent of his
pension and forty-two and one-half percent of his pension until plaintiff is paid
directly by the military; counsel fees in the amount of $3,230 for plaintiff's prior
motion denied without prejudice on April 20, 2018; and counsel fees associated
with plaintiff's appeal and additional legal services incurred by plaintiff through
November 1, 2019.
In response, defendant filed a cross-motion seeking the following relief:
denying plaintiff's motion in its entirety; determining any credits due upon
completion of the amended Court Order Approved for Processing (COAP);
crediting to defendant any overpayment under the COAP to be applied to any
arrears; and awarding counsel fees and costs.
The Family Part judge heard the arguments of counsel on December 6,
2019 and placed her statement of reasons regarding the motion and cross-motion
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on the record on the same date. The judge denied holding defendant in custody
for failure to pay counsel fees in accordance with prior court orders. She
explained such relief required her to hold a separate hearing on defendant's
ability to pay before defendant could be incarcerated for non-payment. Based
on the representation of defense counsel at oral argument, the judge ordered
outstanding counsel fees awarded to plaintiff be paid within fourteen days. In
the event defendant failed to make the required payment, the judge would
"consider the imposition of sanctions."
Regarding the pension distribution, the judge explained:
I think it's clear what the percentages are, but my
reluctance to order a specific dollar amount is because
I'm not sure that [c]ounsel or the [c]ourt is going to get
the math right. I think the more prudent course is
Pension Appraisers is going to figure out to the penny
what the amounts are that are owed and what credits are
due to whomever and at that point payments will be
maid retroactively, credits, however it is they figure it,
but my reluctance in ordering a specific sum of money
to make up the difference is because I think that may
muck it up worse and I'd rather not do that.
In ruling on plaintiff's application for counsel fees, the judge stated :
[w]e all know the background of this case. There was
a motion and cross-motion because there was an issue
as to what the interpretation was of the division of the
pension. I do not see that issue as being a party in
default. If you look up the definition of default, it's the
failure to do something that you're obligated to do and
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the failure to sign the COAP or [Qualified Domestic
Relations Order] to me doesn't constitute a default.
The judge concluded there "was a legitimate dispute . . . [so] the default
provision in the PSA doesn't apply."
On appeal, plaintiff argues the judge erred in failing "to proceed consistent
with [Felton I]," which included denying her request for counsel fees. She also
contends the judge should have scheduled a contempt hearing on defendant's
non-payment of previously ordered counsel fees. In addition, plaintiff claims
the judge erred in granting defendant's motion for a credit. We disagree.
A motion to enforce litigant's rights is the appropriate vehicle to enforce
a court's prior order. Abbott ex rel. Abbott v. Burke, 206 N.J. 332, 359 (2011).
"The scope of relief in a motion in aid of litigants' rights is limited to remediation
of the violation of a court order." Id. at 371.
We review a trial judge's enforcement of litigant's rights pursuant
to Rule 1:10–3 under an abuse of discretion standard. See Barr v. Barr, 418 N.J.
Super. 18, 46 (App. Div. 2011). An abuse of discretion "arises when a decision
is 'made without a rational explanation, inexplicably departed from establ ished
policies, or rested on an impermissible basis.'" Flagg v. Essex Cty. Prosecutor,
171 N.J. 561, 571 (2002) (quoting Achacoso–Sanchez v. Immigr. &
Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).
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Our review of equitable distribution determinations is narrow. Valentino v.
Valentino, 309 N.J. Super. 334, 339 (App. Div. 1998). We decide only whether the
trial court "mistakenly exercised its broad authority to divide the parties' property
and whether the result was 'reached by the trial judge on the evidence, or whether it
is clearly unfair or unjustly distorted by a misconception of law or findings of fact
that are contrary to the evidence.'" Id. at 339 (quoting Wadlow v. Wadlow, 200 N.J.
Super. 372, 382 (App. Div. 1985)). "A sharp departure from reasonableness must
be demonstrated before our intercession can be expected." Wadlow, 200 N.J. Super.
at 382 (quoting Perkins v. Perkins, 159 N.J. Super. 243, 248 (App. Div. 1978)).
A decision regarding an award "of counsel fees is discretionary, and will not
be reversed except upon a showing of an abuse of discretion." Barr, 418 N.J. Super.
at 46 (citing Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001)).
"[F]ee determinations by trial courts will be disturbed only on the rarest of
occasions, and then only because of a clear abuse of discretion." Packard–
Bamberger & Co., 167 N.J. at 444 (quoting Rendine v. Pantzer 141 N.J. 292,
317 (1995)).
Contrary to plaintiff's arguments, the judge proceeded consistent with our
decision in Felton I. The parties previously agreed to use an experienced pension
appraisal firm to calculate the amount of defendant's pension to be paid to plaintiff
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and any credits or offsets that might be due to either party. In exercising her
discretion, and seeking to avoid another mathematical miscalculation, the judge
determined she would await an amended COAP from the parties. An amended
COAP prepared by the mutually retained appraisal expert should accurately reflect
the parties' PSA. In the event the parties are unable to agree upon the form of the
amended COAP, the objecting party should advise the judge. The judge would be
required to resolve any disputes prior to signing the amended COAP. We discern
no abuse of discretion in the judge's decision to await an amended COAP prepared
by the pension appraisal expert consistent with Felton I.
Further, we are satisfied the judge did not abuse her discretion in denying
plaintiff's requested counsel fees. The judge determined the parties had a legitimate
dispute regarding the manner for calculating defendant's military pension and were
unable to agree on the COAP language. She held the failure to prepare the COAP
in the form requested by plaintiff was not an event of default triggering the obligation
to pay counsel fees under the PSA. While defendant's method for the pension
calculation was deemed incorrect in Felton I, our reversal does not establish the
parties' dispute regarding the pension calculation was frivolous or meritless to justify
an award of fees under the PSA.
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Nor did the judge err in denying plaintiff's application to place defendant in
custody for failing to pay prior court ordered attorney's fees. The judge properly
determined such relief required a contempt hearing separate from the motion
hearing. See R. 1:10-3; see also Schochet v. Schochet, 435 N.J. Super. 542, 549-50
(App. Div. 2014) (requiring an ability-to-pay hearing prior to incarceration for
disobedience of a prior court order).
Affirmed.
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