On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-018-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Payne, and Hayden.
Plaintiff appeals from a post-judgment order denying her motion to enforce a November 2007 consent agreement that permitted her, on default, to reinstate certain claims and to obtain their resolution at a plenary hearing. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Plaintiff Rhonda McManus and defendant Matthew Saleeby were divorced in 1993. In 2005, plaintiff brought a motion for child support, contribution toward college tuition, and counsel fees. After extensive discovery, the parties entered into an agreement in August 2007, to resolve these issues. They signed a consent agreement in November 2007. The court entered a consent order approving the consent agreement on March 3, 2008.
The consent agreement provided for defendant to pay $100 per week child support and pay $15,000 per year toward the college tuition of their daughter. In addition, he agreed to make a $5,000 payment each year to prepay the fourth-year tuition. Each party agreed to be responsible for his or her own counsel fees. The agreement also provided:
The terms of this Consent Order shall be non[-]modifiable except in the event of the Defendant's default with regard to any of the provisions. In the event that the Defendant defaults, the Plaintiff may make an application to the Court for enforcement and or to reinstate her original claims that were to be heard by way of plenary hearing.
On March 26, 2008, plaintiff brought a motion to enforce the consent agreement. Plaintiff alleged that defendant had failed to pay $5,000 toward the fourth-year college tuition.
Plaintiff asked for enforcement of the tuition provision and for a plenary hearing on her original claims.
Immediately prior to the hearing on May 9, 2008, defendant paid plaintiff the balance owed on the tuition. At the hearing defendant argued that he was no longer in default. Nonetheless, the motion judge vacated the consent order and increased child support to $278 per week and tuition payments to $20,000. He also awarded counsel fees of over $18,000 for past legal services. The motion judge based the increased child support on bank statements showing that over $900,000 had passed through defendant's bank account the previous year. The motion judge stated that he was imputing $150,000 income to the defendant.
Defendant promptly moved for reconsideration. On July 9, 2008, the motion judge acknowledged that he had not followed the court rules in his previous order, granted the motion for reconsideration, and vacated his May 9 order. Then, the motion judge reinstated plaintiff's original claims and set the matter down for a plenary hearing. The motion judge reduced the previous tuition increase but continued the increased child support payments pending the plenary hearing. He also vacated the award of attorney's fees for past services but awarded the plaintiff $20,000 for attorney's fees to be incurred by her counsel in preparing for the plenary hearing.
Defendant filed an order to show cause for a stay of the order, which was denied on July 10, 2008. On July 15, 2008, defendant filed a motion for leave to take an interlocutory appeal with this court. We denied his request for an emergency hearing on July 30, 2008. We ...