February 17, 2012
LINDA J. SFERLAZZA, PLAINTIFF-RESPONDENT,
JOSEPH S. SFERLAZZA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-0807-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 5, 2011
Before Judges Lihotz and St. John.
The parties entered into a settlement agreement and were divorced by an Amended Final Judgment of Divorce (AFJD) dated June 16, 2005. Since its entry, defendant has filed numerous motions seeking to set aside portions of the judgment. We review the Family Part's order dismissing defendant's most recently filed motion to modify the AFJD. We affirm.
A previous order, dated June 11, 2007, which is not the subject of this appeal, significantly reduced defendant's monthly alimony obligation, as a result of his loss of $2000 per month in private disability benefits. Defendant filed a bad faith claim against his insurance carrier for improper termination of his disability benefits. Defendant subsequently settled that suit against his insurance carrier for $84,280, but failed to disclose the settlement to plaintiff or the court. On November 30, 2009, the court ordered defendant to reimburse plaintiff the lump sum amount of $17,000, representing her alimony entitlement. During this same period, plaintiff was also less than forthcoming about her financial affairs, as she failed to disclose a personal injury lawsuit settlement of $137,500.
The order under review was entered after review of defendant's motion under Rule 4:50-1(c), seeking to: (1) amend a May 21, 2010 order, which denied his application to vacate the November 30, 2009 order, denying a reduction in alimony; (2) amend his reply brief filed in connection with his March 28, 2010 motion; and (3) award counsel fees he has paid to plaintiff since the inception of the litigation, which he based upon the respective needs and resources of the parties, in particular, plaintiff's receipt of her settlement.
By order of September 3, 2010, Judge Eugene J. McCaffrey, Jr. denied defendant's requests and placed his findings of facts and conclusions of law in an oral opinion. This appeal ensued.
We note Family Courts have special jurisdiction and expertise in family matters; therefore, appellate courts should accord deference to a Family Court's fact finding. N.H. v. H.H., 418 N.J. Super. 262, 279 (App. Div. 2011); Cesare v. Cesare, 154 N.J. 394, 413 (1998). If the judge's factual findings are "supported by adequate, substantial, credible evidence" and the judge's conclusions are based on a proper understanding of the relevant law, we may not disturb the order. Cesare, supra, 154 N.J. at 411-12. See also N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002) (noting that deference is not afforded to determinations based on a "misunderstanding of the applicable legal principles").
We have thoroughly reviewed the record and conclude that the arguments presented by defendant challenging the judge's denial of his motion for a reduction in alimony and the amendment to his pleadings are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Defendant also appeals from the denial of his request to eliminate an obligation to pay plaintiff's counsel fees from the commencement of the litigation. In denying the award, the judge stated:
The second relief he is requesting is to hold him free and clear of any attorney's fees owed since the beginning of the litigation on June 24, 2009. He says she has enough money to pay her own fees. Of course, ability to pay is one factor. However the Court does not find that what has been submitted by the defendant in this matter warrants the relief that he's requesting. . . .
As we observed in Connor v. Connor, 254 N.J. Super. 591, 601 (App. Div. 1992), relief under Rule 4:50-1(f) is not available "absent exceptional and compelling circumstances." (Citing Schwartzman v. Schwartzman, 248 N.J. Super. 73, 77 (App. Div.), certif. denied, 126 N.J. 341 (1991). There, we specifically noted that the standard applicable under Rule 4:50-1(f) "is quite different from the changed circumstances standard of Lepis v. Lepis, 83 N.J. 139, 145-49 (1980), which only applies to the modification of support," and expressly held that "a change in financial circumstances standing alone does not satisfy the Rule 4:50-1(f) standard." Connor, supra, 254 N.J. Super. at 591.
"[A]n award of counsel fees and a judgment for equitable distribution are alike in that both constitute leviable judgments." Inserra v. Inserra, 260 N.J. Super. 71, 74 (App. Div. 1992). "Like any other money judgment, both are subject to the rule of finality and both are modifiable only under the standard of Rule 4:50-1(f), not the rule of changed circumstances recognized in Lepis, supra," as asserted by defendant. Ibid. We have addressed similar circumstances and determined:
While it is feasible to apply the rule of changed circumstances to determine the amount of future support and alimony payments, it is impossible to apply it to a fixed present obligation which has been reduced to judgment. To do so would provoke endless litigation, for with each change of circumstances the parties could reopen the question of allocating counsel fees, and, depending on how the court decides, monies previously paid by one party might have to be returned to the other, ad infinitum.
Thus, if for some unforeseeable reason the comfortable circumstances of defendant herein should deteriorate and plaintiff's materially improve, under the ruling below plaintiff could be called upon to re-assume the counsel fee obligation, perhaps in an amount even greater than that previously imposed. Such a result would offend every settled policy touching upon the finality of judgments. We conclude that, as with all other money judgments, the duty to pay an award of counsel fees should not be linked to the vicissitudes of the respective parties' financial circumstances. [Ibid.]
For these reasons, we conclude that the motion judge appropriately exercised his discretion, and the order denying defendant's motion was properly decided.
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