The opinion
NOT FOR PUBLICATION WITHOUT THE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-4325-16T2
ERIKA DEVORAK, n/k/a ERIKA
ATKINSON,
Plaintiff-Appellant,
v.
WILLIAM J. DEVORAK, JR.,
Defendant-Respondent.
_____________________________
Submitted May 24, 2018 – Decided September 5, 2018
Before Judges Haas and Rothstadt.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex
County, Docket No. FM-12-1861-10.
Philip A. Greenberg, attorney for appellant.
Respondent has not filed a brief.
PER CURIAM
In this post-judgment dissolution matter, plaintiff Erika
Atkinson, formerly known as Erika Devorak and Erika Baldassaro,
appeals from the portions of the Family Part's November 4, 2016
order establishing "driving responsibilities" for her and
defendant William J. Devorak, Jr. to accommodate defendant's
parenting time with their now nine-year-old daughter and denying
plaintiff's application for increased child support. She also
appeals from a May 12, 2017 order denying her motion for sanctions
under Rule 1:4-8.1 We affirm.
On September 20, 2016, defendant filed a motion seeking an
order compelling "[t]he parties to share equally the driving
responsibilities regarding parenting time," reducing his child
support obligation "due to a change of circumstances[,]" and
requiring plaintiff to pay defendant counsel fees she owed pursuant
to a prior court order. In response, plaintiff filed a cross-
motion, seeking monetary sanctions against defendant under Rule
1:4-8 for having to oppose defendant's motion, including
reasonable counsel fees and costs. Plaintiff also sought an order
increasing defendant's child support obligation, requiring him "to
pay [eighty percent of] all expenses for [the parties'] child,
including but not limited to, all unreimbursed medical and dental
expenses, school related expenses, and extracurricular activities"
1
The parties were married in 1999 and divorced on November 17,
2010. They have one child who was born in 2009. The parties'
November 17, 2010 property settlement agreement provided the
parties would have joint custody of their child, plaintiff would
have primary residential custody, and defendant would pay $183 in
child support, as well as "[seventy-nine percent] of the child
care costs . . . ."
2 A-4325-16T2
in addition to his other obligations. Plaintiff also sought an
order compelling defendant to "be required to do all the traveling
in connection [with] his visitations with the parties'
child . . . ."
In a detailed written statement of reasons incorporated into
the November 4 order, Judge Daniel H. Brown reviewed the history
of the parties' residences from the time of the final judgment of
divorce, as well as earlier orders dealing with parenting time.
He determined that under the circumstances, "it is fair and
equitable [for them] to share in the transportation
responsibility[,]" and granted defendant's motion for the parties
to "equally share driving responsibilities for parenting
time . . . ." The judge ordered the parties to "agree [to] a
pickup and drop off location equidistant between their current
residences" of Ewing and Roseland.2
2
At the time of divorce, both parties resided in Woodbridge and
they agreed that they would "share alternate weekends for parenting
time with the child. The defendant [would] pick her up after he
[was] done with work on Friday evening and bring her back on Sunday
by 8 [p.m.;]" and "defendant [would] be responsible for all
transportation for his parenting time, unless other arrangements
[were] mutually agreed upon by the parties." Plaintiff later
moved to New York City, but on November 22, 2013, the parties
entered into a consent order where plaintiff agreed to relocate
to New Jersey, and defendant agreed to temporarily provide
transportation to and from his weekend parenting time until
plaintiff moved back to New Jersey. However, the consent order
did not address the parties' driving responsibilities upon
3 A-4325-16T2
Addressing plaintiff's application for increased child
support, Judge Brown concluded plaintiff failed to establish any
change in circumstances warranting a modification and observed
that, in any event, the expenses plaintiff sought for defendant
to pay were already included in the calculation of defendant's
child support obligation. As a result, the judge denied
plaintiff's motion without prejudice.
Finally, Judge Brown also denied without prejudice
plaintiff's motion for sanctions and attorney's fees because,
contrary to plaintiff's argument, defendant's motion was not
frivolous. The judge found defendant established "a significant
change in circumstances warranting a modification of [a] prior
[o]rder regarding pick up and drop off[ and, in any event,
p]laintiff has not submitted a Certification of Services
addressing the factors" for consideration of a counsel fee award
as required under Rule 5:3-5(c).3
plaintiff's relocation to New Jersey. Thereafter, plaintiff moved
to Roseland, New Jersey and defendant moved to Ewing, New Jersey.
3
According to a letter written by plaintiff's counsel to Judge
Brown on January 25, 2017, counsel attempted to file an appeal
from the November 4 order but it was rejected by our clerk's office
on January 17, 2017 because "[p]laintiff's request for sanctions
was denied 'without prejudice' . . . ." Counsel wrote to Judge
Brown to request the order be amended, but states that he never
received a response to his request. For that reason, according
to counsel plaintiff was compelled to file her April 10, 2017
4 A-4325-16T2
Judge Brown's May 12, 2017 order was entered in response to
plaintiff's April 10, 2017 motion, which again sought sanctions
and counsel fees. In her motion, plaintiff contended that
defendant's earlier motion was frivolous and plaintiff was
entitled to counsel fees. This time, however, plaintiff filed a
certification of services from her attorney. Judge Brown concluded
that plaintiff's motion was an untimely motion for reconsideration
under Rule 4:49-2 and even if it was timely, the motion failed to
meet the criteria for reconsideration or for an award of fees
because defendant's claims were not frivolous and counsel's
"Certification of Services failed to address a myriad of factors
under [Rule] 5:3-5(c)." Therefore, despite finding plaintiff's
motion to be "procedurally (being untimely) and substantively
flawed[,]" the judge "still consider[ed] plaintiff's application
. . . and . . . den[ied] the [m]otion based on its substantive
flaws (e.g.[,] no basis to find either party's prior application
was frivolous)." After Judge Brown entered the May 12 order,
plaintiff filed her appeal from both orders on June 14, 2017.
motion that resulted in Judge Brown's May 12 order. We observe,
however, that the earlier appeal was docketed on January 17, 2017,
but voluntarily withdrawn at plaintiff's request, as memorialized
in our January 30, 2017 order. See Devorak v. Devorak, No. A-
1436-16 (App. Div. Jan. 30, 2017).
5 A-4325-16T2
On appeal, plaintiff argues the November 4 order, which
modified the parties' property settlement agreement (PSA), was
entered in error "because matrimonial agreements are consensually
entered into [and] they should generally be honored." Plaintiff
contends that when the parties entered into the PSA, both parties
were represented by counsel and the agreement was clear and
consensual. Plaintiff alleges defendant received the benefit of
his bargain in that he did not have to pay alimony and paid
"modest" child support in return for doing all of the driving.
Finally, plaintiff asserts she has had a second child from her new
marriage and "is required, on a weekly basis, to do all the
transportation for the" parties' daughter.
Plaintiff also argues the court erred in denying her
application for increased child support because her financial
circumstances changed, as she was required to relocate from New
York to New Jersey by court order, and her new husband has been
unable to sell the residence in Manhattan. Plaintiff contends
there is also a change of circumstances because "a review of
[d]efendant's updated CIS and 2015 tax return prove[s] that [his]
present child support obligation is lower than that which would
be calculated under New Jersey's guidelines." We disagree.
At the outset, we conclude that plaintiff's appeal from the
November 4, 2016 order is untimely and we dismiss her appeal from
6 A-4325-16T2
that order on that basis. See R. 2:4-1(a) (requiring "[a]ppeals
from final . . . orders . . . [to] be taken within [forty-five]
days of their entry"). Plaintiff's subsequent motion that she
characterized as one for sanctions and filed five months after the
entry of the November 4 order, did not toll the time for her filing
a timely appeal from that order. Moreover, if as plaintiff's
counsel asserts there was an issue raised by our clerk as to the
order's finality, plaintiff was free to seek leave to appeal. R.
2:4-1(c). However, even if we were to consider plaintiff's
arguments, in light of the deferential standard we accord to
decisions made by Family Part judges, based upon their expertise
in family matters, see Cesare v. Cesare, 154 N.J. 394, 411-13
(1998), we would affirm substantially for the reasons expressed
by Judge Brown in his cogent statement of reasons, as we are
satisfied plaintiff's arguments "are without sufficient merit to
warrant discussion in a written opinion[.]" R. 2:11-3(e)(1)(E).
We reach the same conclusion as to plaintiff's arguments
regarding the May 12, 2017 order. On appeal, plaintiff relies
upon Rule 1:4-8(b)(1), and argues that defendant's September 20,
2016 motion to reduce his support was frivolous "because his
failure to attach to his moving papers an updated CIS statement
or tax return as to [d]efendant's present financial situation made
. . . his application defective, on its face." She also contends
7 A-4325-16T2
that "none of the case law or facts submitted by defense counsel
supported [d]efendant's application to increase [p]laintiff's
driving responsibilities regarding [d]efendant[']s visitation
weekends[,]" and that defendant's motion for legal fees was
frivolous "because defense counsel did not and could not provide
any copies of [o]rders that listed the amount of attorney's fees
that [p]laintiff purportedly owed [d]efendant." Plaintiff avers
she complied with Rule 1:4-8(b)(1) because she notified defendant
that, unless his motion was withdrawn within twenty-eight days,
plaintiff would seek sanctions.
We conclude from our review that Judge Brown correctly denied
plaintiff's motion for sanctions and fees substantially for the
reasons he expressed in his order. We only add that, even if
plaintiff had a viable and timely claim for sanctions under Rule
1:4-8, and defendant did not have "a reasonable good faith belief
in the merit of [his] action[,]" DeBrango v. Summit Bancorp, 328
N.J. Super. 219, 227 (App. Div. 2000) (citations omitted), she
failed to comply with the Rule's procedural requirements, which
include serving a detailed statement as to why a claim is viewed
as being frivolous, and filing a timely claim in a separate motion
no later than twenty days following the entry of the order denying
the alleged frivolous claim. See R. 1:4-8(b)(1) and (2); see also
8 A-4325-16T2
State v. Franklin Sav. Account No. 2067, 389 N.J. Super. 272, 281
(App. Div. 2006).
Dismissed in part and affirmed in part.
9 A-4325-16T2