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NOT FOR PUBLICATION WITHOUT THE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.

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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.

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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

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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

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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.

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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.

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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

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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.

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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

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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.

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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

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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.

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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.

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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

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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

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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'

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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

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(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

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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

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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

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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

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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."

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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

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"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

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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

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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.

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