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Andrea Sherry, F/K/A andrea Zebe v. Charles W. Zebe

April 8, 2011

ANDREA SHERRY, F/K/A ANDREA ZEBE, PLAINTIFF-RESPONDENT,
v.
CHARLES W. ZEBE, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1838-94.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 28, 2011

Before Judges Grall and C.L. Miniman.

Defendant Charles W. Zebe appeals from post-judgment orders in a matrimonial case. With the exception of the counsel fees awarded in paragraphs three and five of the May 24, 2010 order and defendant's obligation to pay expenses imposed in paragraph three of the January 22, 2010 order, we affirm.

The parties were divorced in October 1996, and the final judgment incorporates their property settlement agreement. They have two children both of college age. Eight years after the divorce, the parties litigated issues related to responsibility for the children's expenses. An appeal and cross-appeal followed, and on September 13, 2006, we reversed and remanded for further proceedings. Sherry v. Zebe, No. A-2927-04 (App. Div. Sept. 13, 2006).

The issues remanded by this court, as well as additional issues raised on subsequent post-judgment motions filed in the trial court, are addressed in an order entered on October 16, 2009. Pertinent here, that order includes an allocation of responsibility for college tuition and other expenses of the children, such as computer software, sorority dues, travel expenses, uniforms and bedding. The allocation is twenty-five percent to plaintiff and seventy-five percent to defendant. The order also memorializes the judge's denial of defendant's request to compel use of funds in the children's custodial accounts for college expenses and permits plaintiff to use those funds toward her share of the college expense. In addition, the order requires defendant to pay $91,089.06 for counsel fees and costs - $3000 on the motions and $88,089.96 for fees on remand.

We cannot address the propriety of the October 16 order on this appeal. Notices of appeal and cross-appeal from that order were filed, Sherry v. Zebe, No. A-1532-09, and the appeal has been calendared for argument before us on May 9, 2011. Any objections to the October 16 order must be decided in that case, and any not raised there have been abandoned. Muto v. Kemper Reinsurance Co., 189 N.J. Super. 417, 420-21 (App. Div. 1983).

The first two orders from which defendant appeals were entered on January 22, 2010. We address them separately.

One order entered on January 22, 2010, denied defendant's motion for a stay pending appeal of the trial court's October 16 order. On March 12, 2010, this court also declined to stay the October 16 order on a motion defendant filed in A-1532-09. Defendant asks us to consider whether the trial court erred in denying a stay pending appeal, but he presents no argument as to why we should reconsider this court's prior order denying a stay.

Another January 22, 2010 order was entered on plaintiff's motion to enforce prior orders, including the October 16 order. The enforcement order reiterates the allocation of responsibility for college expenses stated in the October 16 order and the denial of defendant's request regarding funds in the children's custodial accounts. In addition, it requires defendant to pay the $91,089.06 counsel fee award entered on October 16 within ten days unless this court granted a stay, and it directs defendant to pay his share of the college expense as previously ordered.

The judge granted additional relief in the enforcement order. Paragraph three directs defendant to pay $120 for one daughter's room and board at college, $39.75 for her train travel to college and $1200 as his share of the cost for two laptop computers plaintiff purchased for their daughters. The judge made no findings of fact and gave no explanation for her decision to compel defendant to pay these additional costs.

Although plaintiff requested counsel fees on the January 22, 2010 motion, the judge did not address that request. She denied it without prejudice and stated that she would decide it if plaintiff renewed her application after this court ruled on defendant's application for a stay of the October 16, 2009 order.*fn1

In April 2010, defendant again moved to enforce the court's prior orders, renewed the application for fees that had been denied without prejudice in the January 22, 2010 order and sought addition fees on the present ...


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