Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Gary Ullmann v. Mary Fran Ullmann


March 23, 2011


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-272-06-C.

Per curiam.


Submitted October 27, 2010 - Decided Before Judges Fuentes,Ashrafi and Nugent.

Plaintiff ex-husband appeals from a post-judgment order dated January 15, 2010, pertaining to expenses he incurred for the parties' children. The Family Part relieved defendant ex-wife from reimbursing husband for work-related child-care expenses and for attorney's fees, and the court also denied husband a modest weekly offset of his alimony payments to wife until the amount she owes has been satisfied. We affirm in part and reverse in part.

The parties were married in 1991 and divorced in 2006. They have two teenage sons, born in 1993 and 1995. At the time of the divorce, they entered into a marital settlement agreement that was incorporated into their judgment of divorce. They agreed to have joint legal custody of the boys and husband to be the parent of primary residence. Wife was obligated to pay child support to husband, and husband to pay alimony to wife. The net result of the amounts fixed for those obligations is that husband must pay $350 per week to wife.

The agreement also requires that the parties share "at the rate of 37% by Wife and 63% by Husband" certain unreimbursed expenses for the boys. Paragraph 44a of the agreement states that husband shall submit to Wife his proof of payment of unreimbursed medical expenses, work related child care and/or camp costs incurred for the children, with a calculation of his request for reimbursement. Wife shall reimburse Husband within 30 days. If not so reimbursed, Husband shall be entitled to a credit against his alimony obligation in the amount of the reimbursement requested, unless Wife has provided written objection to the amount requested, along with the reasons for the dispute. In that event, the dispute shall be immediately submitted to arbitration . . . and the arbitrator shall determine the credit due to Husband.

After the divorce, husband submitted documentation and notes to wife seeking reimbursement for expenses of YMCA camp, medical and dental fees, babysitters, and other expenses. Wife made no payments to husband and also did not respond with a written objection. She objected orally to some of husband's claims, agreeing only to pay her share of the medical and dental expenses when she could afford to do so.

The parties negotiated personally and through attorneys but were not able to resolve the dispute. After wife indicated she could not afford to pay for an arbitrator as provided in the agreement, husband filed a post-judgment motion in June 2009 for an order requiring wife to reimburse designated expenses. Wife filed untimely opposition and also an untimely cross-motion to reduce her child support obligation and to increase her alimony payments. The Family Part heard oral argument on husband's motion and issued an order and oral decision on September 28, 2009.

The court ordered that wife reimburse husband a total of $10,088.29 for expenses of the children and for attorney's fees. That figure was comprised of $2,332.80 for child-care expenses, $1,484.05 for medical and dental expenses, $3,741.44 for camp expenses, and $2,530.00 for attorney's fees and costs. The court denied some of husband's requests for reimbursement and also denied his request for a deduction of $75 per week from his alimony payments until the amount owed by wife has been satisfied. In its oral decision, the court misinterpreted husband's motion as requesting that his alimony payments be reduced to $75 per week, rather than temporarily reduced by that amount to $275 per week until wife's debt is paid.

Both parties moved for reconsideration of the court's September 28, 2009 order. On January 15, 2010, the court granted in part wife's motion for reconsideration. It reduced her total obligation to $5,225.49 by vacating the parts of its earlier order that required reimbursement for child-care expenses and attorney's fees. The court denied husband's motion for reconsideration and again rejected his request to deduct $75 per week from his alimony payments. The court's order stated that wife's debt would instead be reduced to judgment against her. Husband filed a notice of appeal.

Husband argues that the court had no legal basis to reconsider its September 28, 2009 order for reimbursement because wife did not produce any new evidence and the court had not made any legal error in its prior decision. In its January 15, 2010 decision, the court stated it was vacating its prior ruling on child-care expenses because husband's "past filing, as it relates to the child care charges, is deficient." Husband's documentation for child-care expenses contained no statement or invoice from a child-care provider, no receipt or a copy of a paid check, and no other reliable document indicating that a child-care provider had been paid. His proofs consisted of only his own hand-written notes indicating hours for a babysitter and an hourly rate of pay. On the motion for reconsideration, the court reasonably viewed husband's proofs to be insufficient and decided to rescind its prior ruling.

"Reconsideration is a matter to be exercised in the trial court's sound discretion." Capital Fin. Co. of Delaware Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.), certif. denied, 195 N.J. 521 (2008). An appellate court will not disturb the trial court's decision to grant or deny a motion for reconsideration unless it has abused its discretion. See Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002). We find no abuse of discretion in the court's reconsideration and ultimate denial of husband's request for reimbursement of child-care expenses without adequate proofs.

We come to a different conclusion with respect to the court's rulings concerning attorney's fees and husband's request to deduct the debt from his alimony payments.

The parties' agreement sets forth remedies for failure to make payments in accordance with the terms of the agreement. Paragraph 92 of the agreement states in relevant part:

Should either party willfully fail to abide by the terms of this Agreement, the defaulting party will indemnify the other for all reasonable expenses and costs, including attorneys' fees incurred in successfully enforcing this Agreement. This provision is intended to be enforced as a freely bargained for contractual agreement, and a counsel fee claim for reimbursement pursuant to this provision is not intended to and shall not be subject to the Court's discretion under R. 4:42-9(a).

In both its original ruling and on reconsideration, the court made no reference to this provision of the agreement. Rather, on each occasion, the court decided the attorney's fees issue as if it was purely a discretionary ruling under Rules 5:3-5(c) and 4:42-9(a). See, e.g., Gotlib v. Gotlib, 399 N.J. Super. 295, 314-15 (App. Div. 2008) (application of R. 5:3-5(c) and decision to award counsel fees rests within the court's sound discretion); Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004) (allowance for attorney's fees and costs remains discretionary).

When the court granted attorney's fees to husband by its September 28, 2009 order, it stated only that wife "has been noncompliant with the terms of the agreement, [and] that a counsel fee is appropriate." Wife objected to that ruling in her motion for reconsideration on the ground that husband had not negotiated in good faith to resolve the dispute without incurring legal expenses. In its January 15, 2010 oral decision, the court stated that "it appears that the defendant is not able to pay the counsel fee award, given her financial circumstances." The court then stated, "in looking back at . . . what was before me, the court could not, upon further review" order attorney's fees under Rule 5:3-5(c). The court's rulings failed to take into account Paragraph 92 of the parties' agreement.

Settlement agreements in matrimonial cases are contracts that should be enforced as long as they are fair and just. Petersen v. Petersen, 85 N.J. 638, 642 (1981); see also Lepis v. Lepis, 83 N.J. 139, 146 (1980) (matrimonial settlement agreements are enforceable "to the extent that they are just and equitable") (quoting Schlemm v. Schlemm, 31 N.J. 557, 581-82 (1960)). Our courts recognize a "'strong public policy favoring stability of arrangements' in matrimonial matters." Konzelman v. Konzelman, 158 N.J. 185, 193 (1999) (quoting Smith v. Smith, 72 N.J. 350, 360 (1977)). "[F]air and definitive arrangements arrived at by mutual consent should not be unnecessarily or lightly disturbed." Id. at 193-94 (quoting Smith, supra, 72 N.J. at 358); see also Dolce v. Dolce, 383 N.J. Super. 11, 20 (App. Div. 2006) ("Settlement agreements . . . are entitled to considerable weight with respect to their validity and enforceability in equity, provided they are fair and just."). As in other contexts involving contracts, a court must enforce a matrimonial agreement as the parties intended, so long as it is not inequitable to do so. See Pacifico v. Pacifico, 190 N.J. 258, 266 (2007).

Here, the parties' agreement was plain on its face. It expressly stated it was not subject to the usual discretion of the Family Part to award attorney's fees as provided in Rule 4:42-9(a). The agreement provided for reimbursement for attorney's fees if one party "willfully" violated its terms. The first task of the court should have been to determine whether these provisions are fair and just and, thus, enforceable. The court made no explicit findings in that regard.

The court also did not make any finding as to whether wife had willfully failed to reimburse husband for expenses that were her obligation. The court decided the attorney's fees issue on the reconsideration motions only based on wife's financial circumstances without consideration of any other facts.

We reverse the portion of the January 15, 2010 order vacating the award of attorney's fees to husband and remand to the Family Part for reconsideration of all relevant facts and issues. On remand, the court should determine whether the attorney's fees provision of the agreement is enforceable and whether wife willfully violated the agreement.

We also conclude that the court erred in denying husband's motion to deduct the amounts owed to him from his alimony payments. As previously quoted, paragraph 44a of the agreement provides that if wife does not reimburse husband within thirty days for her proper share of the children's expenses, husband can deduct those amounts from his alimony payments.

In his motion filed in June 2009, husband made a modest request to deduct $75 per week from his alimony obligation of $350 per week until wife's reimbursement obligation is satisfied. The court misinterpreted husband's request as seeking to reduce the alimony payments to $75 per week for 147 weeks and stated this would result in a benefit of $40,425 to husband, which was far more than wife's debt. Husband attempted to correct the court's misunderstanding by means of his motion for reconsideration, but the court inexplicably repeated the same misunderstanding when it ruled in January 2010.

We can find no just reason that husband should be required to pay the full amount of his alimony obligation to wife each week but she should not be required to reduce the amount she owes for the children's expenses through weekly installment deductions. We reverse the portion of the court's order denying husband permission to deduct $75 from his weekly alimony payments.

Reversed and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.


© 1992-2011 VersusLaw Inc.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.