NOT FOR PUBLICATION WITHOUT THE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-0472-17T1
ELIZABETH SOWELL-ZAK,
Plaintiff-Appellant,
v.
GARY ZAK,
Defendant-Respondent.
___________________________
Argued March 6, 2019 – Decided April 8, 2019
Before Judges Fuentes, Vernoia and Moynihan.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FM-13-1164-09.
Elliot S. Solop argued the cause for appellant (Dwyer,
Bachman & Newman, LLC, attorneys; Elliot S. Solop,
on the briefs).
Ciro A. Spina argued the cause for respondent (Law
Offices of Jef Henninger, attorneys; Jef D. Henninger,
on the brief).
PER CURIAM
Plaintiff Elizabeth Sowell-Zak appeals from an August 17, 2017 Family
Part order denying her motion for reconsideration of the court's April 13, 2017
order that, in pertinent part, terminated her ex-husband, defendant Gary Zak's,
alimony obligation, denied plaintiff's request for $5000 in counsel fees under
the parties' 2009 Property Settlement Agreement (PSA), and denied plaintiff's
claim for $19,898 plus interest for defendant's alleged failure to pay the
remainder of an amount due to plaintiff for her share of the agreed upon
equitable distribution of marital assets. We affirm.
I.
Married in 1982, the parties divorced in November 2009. The final
judgment of divorce incorporated the PSA, which included February 2009 and
October 2009 amendments.
In pertinent part, the PSA required that defendant pay plaintiff $7600 per
month in alimony. The PSA provided that defendant's alimony obligation
"terminate[d] only in the event of one of the following events: (a) the death of
either party; (b) the remarriage of [plaintiff]; (c) [plaintiff] entering into a Civil
A-0472-17T1
2
Union or Domestic Partnership." The PSA also required that defendant pay
plaintiff $5000 for her legal fees for the PSA's preparation.1
Prior to the divorce, defendant had an interest in two companies, Global
Essence, Inc., and Global Essence UK, Ltd. (jointly Global Essence), that the
parties agreed to value at $1 million for equitable distribution purposes. Under
the PSA, defendant agreed to pay plaintiff $270,000 for her waiver of any claim
to defendant's interest in Global Essence. The sum was to be paid in monthly
installments, with a final "balloon payment" of $92,898 due by February 2014.
In 2016, Global Essence terminated defendant's employment after
"significant disagreements . . . between [Global Essence's controlling
shareholder] and [defendant led] to tension in the company." Defendant, who
was sixty-five years old at the time, sued Global Essence and challenged the
validity of the termination. Defendant's counsel advised the litigation would
last for two to three years.
In 2016, after his employment terminated, defendant filed a post-judgment
motion seeking a temporary suspension of his alimony and other support
obligations under the PSA, and a plenary hearing to determine if his alimony
1
The PSA also obligates defendant to maintain numerous other types of
financial support, including child support and paying plaintiff's E-Z Pass bill,
that are not relevant to this appeal.
A-0472-17T1
3
"[should] be terminated or otherwise reduced due to . . . defendant's retirement
and/or loss of income." Defendant filed a case information statement showing
assets valued at $21,000.
Plaintiff opposed the motion, but did not supply the court with a case
information statement. She also cross-moved for enforcement 2 of defendant's
obligation to pay the $5000 counsel fee under the PSA, and claimed defendant
owed a $19,898 balance plus interest on the balloon payment due for his buyout
of her share of his interest in Global Essence.
The motion court heard oral argument on April 29, 2016, and in a detailed
order and written statement of reasons found the termination of defendant's
employment with Global Essence and reaching a "good faith" retirement age of
sixty-five constituted prima facie evidence of "changed circumstances"
sufficient to consider his request to modify or terminate his alimony obligation.
See Lepis v. Lepis, 83 N.J. 139, 146 (1980) (requiring a showing of "changed
circumstances" to modify or terminate an alimony obligation); see also N.J.S.A.
2A:34-23(j)(3).
2
Plaintiff moved to enforce other provisions in the PSA. The court's disposition
of those portions of the motion is not challenged on appeal.
A-0472-17T1
4
Based on the record presented at the time, the court also concluded it could
not determine whether termination or modification of defendant's alimony
obligation was appropriate because "[t]here [were] genuine and substantial
issues of material facts" relevant to its consideration of the statutory factors for
termination or modification of alimony under N.J.S.A. 2A:34-23(j)(3). For
example, the motion court found it was "unable to adequately
assess . . . [p]laintiff's ability to adequately save for retirement without
knowledge of Social Security income or Case Information Statements as
required by [N.J.S.A. 2A:34-23]," at least in part because plaintiff had not filed
a case information statement. In addition, the parties argued that the uncertainty
concerning defendant's litigation with Global Essence and the fact defendant
anticipated the litigation would last several years required a plenary hearing or
economic mediation. The parties agreed to engage in mediation to resolve their
outstanding disputes.
The parties' mediation occurred in October 2016, but was not successful
on the issue of defendant's alimony obligation. However, several days after the
mediation concluded, defendant settled his litigation with Global Essence. The
company agreed to pay defendant one year's severance pay in the amount of
$350,000. Global Essence agreed to buy out defendant's ownership interest for
A-0472-17T1
5
a sum payable at the rate of $87,000 per year for ten years. Defendant began
receiving his severance pay in November 2017.
The court scheduled a settlement conference, and the parties submitted
supplemental certifications asserting facts relevant to their outstanding claims.
The court heard oral argument on the date of the conference, and subsequently
entered an April 13, 2017 order and comprehensive statement of reasons
supporting its decision granting defendant's motion to terminate his alimony
obligation. The motion court found that, based on the record then before it, "a
plenary hearing [was] not necessary" because of "the presence of material
undisputed facts which did not exist at the time of the initial motion," including
defendant's settlement with Global Essence and his receipt of one year's
severance pay. The motion court explained that, had such information been
before it when the original application was made, it "would have affected [the
court's] decision at the time of original motion." The court noted that a plenary
hearing is required only where there is a genuine issue of material fact, and the
parties' initial and supplemental certifications revealed no disputes of fact
precluding a determination of defendant's motion to modify or terminate his
alimony obligation.
A-0472-17T1
6
The motion court analyzed the record presented under N.J.S.A. 2A:34-
23(j)(3), which applies when "a retirement application is filed in cases in which
there is an existing final alimony [o]rder or enforceable written agreement
established prior to the effective date of [September 2014]." The statute lists
eight factors for courts to consider:
(a) The age and health of the parties at the time of the
application;
(b) The obligor's field of employment and the generally
accepted age of retirement for those in that field;
(c) The age when the obligor becomes eligible for
retirement at the obligor's place of employment,
including mandatory retirement dates or the dates upon
which continued employment would no longer increase
retirement benefits;
(d) The obligor's motives in retiring, including any
pressures to retire applied by the obligor's employer or
incentive plans offered by the obligor's employer;
(e) The reasonable expectations of the parties regarding
retirement during the marriage or civil union and at the
time of the divorce or dissolution;
(f) The ability of the obligor to maintain support
payments following retirement, including whether the
obligor will continue to be employed part-time or work
reduced hours;
(g) The obligee's level of financial independence and
the financial impact of the obligor's retirement upon the
obligee; and
A-0472-17T1
7
(h) Any other relevant factors affecting the parties'
respective financial positions.
[N.J.S.A. 2A:34-23(j)(3).]
The motion court made findings as to each factor, and concluded
defendant's alimony obligation under the PSA continued during the one-year
period he received severance pay from Global Essence. Thus, the court ordered
that defendant continue to pay alimony during 2017.
Based on its analysis of the N.J.S.A. 2A:34-23(j)(3) factors, the court
further determined the undisputed facts presented in the parties' original and
supplemental certifications, and the "limited testimony" of defendant presented
during the oral argument, established defendant "met his burden of proof that
alimony should terminate as he ha[d] reached the retirement age of" sixty-six.
The court did not consider defendant's receipt of the $87,000 per year defendant
was to receive from Global Essence because, as part of the equitable distribution
of property under the PSA, plaintiff had already been paid $270,000 for her
share of defendant's interest in Global Essence. The court further noted
defendant paid plaintiff over $600,000 in alimony during the seven years
following entry of the judgment of divorce, but plaintiff failed to present any
evidence explaining "why she was unable to save any amount over the years or
that she was incapable of finding any work." The court explained that defendant
A-0472-17T1
8
retired at full retirement age, there is no evidence he will continue any
employment, his income following his receipt of the one year of severance is
limited to Social Security benefits and he does not have the financial ability to
continue to pay alimony. Thus, the court terminated defendant's alimony
obligation.
The court also denied plaintiff's request for enforcement of the PSA
provision requiring that defendant pay $5000 for plaintiff's attorneys' fees,
finding the claim barred by the doctrine of laches because plaintiff waited seven
years following the 2009 final judgment of divorce to request enforcement of
the obligation. The court also rejected plaintiff's claim for $19,898 plus interest
based on defendant's alleged failure to make full payment of the balloon
payment under the PSA. The court found the evidence showed plaintiff
"accepted payment related to the balloon payment" and plaintiff failed to present
evidence establishing defendant failed to make full payment of the amount due.
Plaintiff filed a motion for reconsideration. In a detailed order and written
statement of reasons, the court summarized the standard for reconsideration
under Rule 4:49-2, see Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div.
1996), and rejected plaintiff's request that it reconsider its decision to terminate
defendant's alimony obligation without an evidentiary hearing.
A-0472-17T1
9
Plaintiff argued the court applied the incorrect legal standard in assessing
defendant's modification and termination motion. The court, however,
explained that it properly applied the factors under N.J.S.A. 2A:34-23(j)(3)
because defendant sought modification or termination of an alimony obligation
in a judgment of divorce entered prior to the statute's effective date. See Landers
v. Landers, 444 N.J. Super. 315, 324-25 (App. Div. 2016) (finding N.J.S.A.
2A:34-23(j)(3) governs the analysis of motions for modification or termination
of alimony based on a retirement where the alimony order is established prior to
the effective date of the statute, September 10, 2014). The court also did not
reconsider its decision to sua sponte issue the termination order without an
evidentiary hearing because the record presented when it decided the motion
was devoid of evidence establishing a dispute as to any material facts.
The court also found no basis to reconsider its denial of plaintiff's request
for an award of the $5000 counsel fee provided for in the PSA. The court
reiterated that plaintiff waited seven years to assert the claim and defendant
certified that he had fully paid the fee but had not maintained records concerning
the payment. The court explained that it had determined the claim was barred
by the doctrine of laches because plaintiff waited too long to assert the claim,
"provide[d] no specific reason for her delay," and it would be inequitable to
A-0472-17T1
10
compel defendant to make the payment where his ability to prove he previously
made the payment is compromised by plaintiff's delay.
The court similarly declined to reconsider its decision regarding plaintiff's
entitlement to the alleged amount due for the balloon payment. The court
explained that the record showed plaintiff "accepted payment related to the
balloon payment" and "failed to articulate exactly what she claimed." Thus, the
court found no basis to reconsider its determination that plaintiff failed to
present evidence showing defendant did not satisfy his balloon payment
obligation.
The court entered an August 17, 2017 order denying plaintiff's
reconsideration motion. This appeal followed.
Plaintiff presents the following arguments for our consideration:
POINT I
THE LANGUAGE OF THE PARTIES' PROPERTY
SETTLEMENT AGREEMENT CONTEMPLATES
THAT ALIMONY WAS TO TERMINATE ONLY IN
THE EVENT OF DEATH, REMARRIAGE OF THE
WIFE, OR THE WIFE ENTERING INTO A CIVIL
UNION OR DOMESTIC PARTNERSHIP
POINT II
THE TRIAL COURT ERRED IN FINDING A
CHANGE IN CIRCUMSTANCES AS TO THE
A-0472-17T1
11
DEFENDANT/RESPONDENT'S POST-JUDGMENT
APPLICATION
POINT III
THE TRIAL COURT ERRED IN ITS APPLICATION
OF THE AMENDED ALIMONY STATUTE
DELINEATED UNDER N.J.S.A. 2A:34-23
POINT IV
THE TRIAL COURT ERRED IN FAILING TO
CONDUCT A PLENARY HEARING AS TO THE
CONSTRUCTION OF THE PARTIES' PROPERTY
SETTLEMENT AND AS TO
DEFENDANT/RESPONDENT'S ALIMONY AND
SUPPORT OBLIGATIONS
POINT V
THE TRIAL COURT MISAPPLIED THE DOCTRINE
OF LACHES TO OBLIGATIONS SET FORTH IN
THE PARTIES' PSA
II.
We first observe that plaintiff appeals only the court's August 17, 2017
order denying her reconsideration motion. Her notice of appeal lists only that
order, and makes no reference to the court's initial April 29, 2016 order or its
April 13, 2017 order granting defendant's motion to terminate his alimony
obligation and denying plaintiff's motion to compel payment of the claimed
$5000 counsel fee and the alleged $19,898 balance on the balloon payment.
A-0472-17T1
12
"[I]t is clear that it is only the judgments or orders or parts thereof
designated in the notice of appeal which are subject to the appeal process and
review." Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 461-62 (App.
Div. 2002) (quoting Pressler & Verniero, Current N.J. Court Rules, cmt. 6 on R.
2:5-1(f)(3)(I) (2002)). However, "[w]e are mindful of the fact that in some cases
a motion for reconsideration may implicate the substantive issues in the case, "
and "an appeal solely from . . . the denial of reconsideration may be sufficient
for an appellate review of the merits of the case." Id. at 461. Here, to the extent
plaintiff's motion for reconsideration was based on the argument that the court's
rulings were based upon a palpably incorrect or irrational basis, see D'Atria v.
D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990), the substantive issues
presented to the court on the parties' original motions and plaintiff's motion for
reconsideration are sufficiently the same to warrant our review of the merits of
both, Fusco, 349 N.J. Super. at 462.
Our scope of review of Family Part orders is limited, as we accord
deference to the family courts due to their "special jurisdiction and expertise" in
family law matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998). Therefore, the
judge's findings are binding so long as its determinations are "supported by
adequate, substantial, credible evidence." Id. at 412. A "[motion] judge's legal
A-0472-17T1
13
conclusions, and the application of those conclusions to the facts, are subject to
our plenary review." Spangenberg v. Kolakowski, 442 N.J. Super. 529, 535
(App. Div. 2015) (quoting Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div.
2013)).
Plaintiff first argues the motion court erred as a matter of law by
terminating defendant's alimony because the PSA provided for "permanent
alimony" and allowed for termination of alimony only upon either party's death
or plaintiff's remarriage or entry into a domestic partnership or civil union.
Plaintiff contends the PSA therefore prohibited the termination of alimony based
on defendant's retirement. Plaintiff did not make the argument prior to the
court's April 13, 2017 order terminating defendant's alimony obligation.
Instead, she first asserted the argument on her motion for reconsideration.
Our standard of review on a motion for reconsideration is deferential.
"Motions for reconsideration are governed by Rule 4:49-2, which provides that
the decision to grant or deny a motion for reconsideration rests within the sound
discretion of the trial court." Pitney Bowes Bank, Inc. v. ABC Caging
Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015).
Reconsideration "is not appropriate merely because a litigant is
dissatisfied with a decision of the court or wishes to reargue a motion." Palombi
A-0472-17T1
14
v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010). "[A] motion for
reconsideration provides the court, and not the litigant, with an opportunity to
take a second bite at the apple to correct errors inherent in a prior ruling. "
Medina v. Pitta, 442 N.J. Super. 1, 18 (App. Div. 2015). It "does not provide
the litigant with an opportunity to raise new legal issues that were not presented
to the court in the underlying motion." Ibid. Thus, here, the court did not abuse
its discretion by rejecting plaintiff's argument, raised for the first time on her
reconsideration motion, that the PSA barred defendant's application for
modification or termination of his alimony obligation.
Moreover, plaintiff's claim that the PSA barred defendant's modification
or termination motion is without merit. It is well-established that modification
or termination of an alimony obligation is permitted upon a showing of changed
circumstances which render the agreed upon terms no longer "fair and
equitable." Lepis, 83 N.J. at 148; see also N.J.S.A. 2A:34-23 (providing that
alimony orders "may be revised and altered by the court from time to time as
circumstances may require"). In addition, the PSA does not include an "anti-
Lepis provision" barring modification or termination of defendant's alimony
obligations as otherwise allowed by law upon a showing of changed
circumstances. See, e.g., Morris v. Morris, 263 N.J. Super. 237, 240-43 (App.
A-0472-17T1
15
Div. 1993) (enforcing an "anti-Lepis provision"3 which expressly barred
application of the Lepis standard to requests for modifications of alimony
obligation). Where, as here, the PSA does not include an anti-Lepis provision,
we discern no basis to bar defendant's entitlement to a modification of his
alimony obligation upon his showing that due to the termination of his
employment and retirement at full retirement age, there were changed
circumstances rendering his alimony obligation neither fair nor equitable.
Plaintiff next argues the court erred by failing to hold a plenary hearing
before ordering the termination of defendant's alimony obligation. We are not
persuaded.
"A hearing is not required or warranted in every contested proceeding for
the modification of a judgment or order relating to alimony." Murphy v.
Murphy, 313 N.J. Super. 575, 580 (App. Div. 1998); see also Lepis, 83 N.J. at
159 (holding "a party must clearly demonstrate the existence of a genuine issue
as to a material fact before a hearing is necessary," and explaining that
"[w]ithout such a standard, courts would be obligated to hold hearings on every
3
In Morris, the parties' property settlement agreement included the following
language, which we characterized as an "anti-Lepis provision: The parties
hereby waive their rights for modification based upon changed circumstances as
set forth in the case of Lepis v. Lepis, 83 N.J. 139 (1980)." Morris, 263 N.J.
Super. at 240.
A-0472-17T1
16
modification application"). A plenary hearing should be ordered "only where
the affidavits show that there is a genuine issue as to a material fact, and that the
trial judge determines that a plenary hearing would be helpful." Murphy, 313
N.J. Super. at 580 (quoting Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div.
1976)). A material factual dispute is one that "bear[s] directly on the legal
conclusions required to be made and [such] disputes can only be resolved
through a plenary hearing." Spangenberg, 442 N.J. Super. at 540-41.
The court has the power "to hear and decide motions . . . exclusively upon
affidavits." Shaw, 138 N.J. Super. at 440. However, "[i]t is only where the
affidavits show that there is a genuine issue as to a material fact, and that the
trial judge determines that a plenary hearing would be helpful in deciding such
factual issues, that a plenary hearing is required." Ibid. "[W]here the need for
a plenary hearing is not so obvious, the threshold issue is whether the movant
has made a prima facie showing that a plenary hearing is necessary." Hand v.
Hand, 391 N.J. Super. 102, 106 (App. Div. 2007). We review a court's decision
whether a plenary hearing is required for an abuse of discretion. Costa v. Costa,
440 N.J. Super. 1, 4 (App. Div. 2015).
We discern no abuse of discretion in the court's decision to sua sponte
decide defendant's motion for modification or termination of his alimony
A-0472-17T1
17
obligation without a plenary hearing. Based on the court's review of the
supplemental certifications of the parties following the mediation and
defendant's settlement of the litigation against Global Essence, it concluded
there were no disputed facts relevant to its resolution of defendant's motion.
Plaintiff argues there are disputed fact issues that require a plenary hearing but
does not identify any competent evidence demonstrating an extant dispute as to
a material fact. The arguments of counsel in a brief are insufficient to establish
fact issues requiring a plenary hearing, see, e.g., Celino v. Gen. Accident Ins.,
211 N.J. Super. 538, 544 (App. Div. 1986) ("The function of the brief is a written
presentation of legal argument. Facts intended to be relied on which do not
already appear of record and which are not judicially noticeable are required to
be submitted to the court by way of affidavit or testimony."), and the evidence
before the court did not reveal any issues of fact essential to the court 's
disposition of defendant's motion. Thus, plaintiff failed to demonstrate that a
plenary hearing was necessary. See Hand, 391 N.J. Super. at 106 ("[W]here the
need for a plenary hearing is not . . . obvious, the threshold issue is whether the
movant has made a prima facie showing that a plenary hearing is necessary.").
We also find no merit in plaintiff's claim that the court applied the
incorrect legal standard in determining whether defendant's alimony obligation
A-0472-17T1
18
should have been modified or terminated due to his retirement. Contrary to
plaintiff's assertions, the court properly analyzed defendant's motion under
N.J.S.A. 2A:34-23(j)(3). The statute applies where "a retirement application is
filed in cases in which there is an existing final alimony order or enforceable
written agreement established prior to the effective date of [September 10,
2014]." N.J.S.A. 2A:34-23(j)(3). Those circumstances are present here: the
parties' judgment of divorce, which incorporated the PSA, was entered in
November 2009. See Landers, 444 N.J. Super. at 323-24 (holding N.J.S.A.
2A:34-23(j)(3) applies when an alimony obligor retires and moves for
modification or termination of the alimony obligation established prior to
September 2014).
In addition, the court carefully applied N.J.S.A. 2A:34-23(j)(3)'s eight
factors, and its findings appear well supported by the record. 4 Contrary to
4
Plaintiff did not include her case information statement in the record on appeal.
"A party on appeal is obliged to provide the court with 'such other parts of the
record . . . as are essential to the proper considerations of the issues.'" Soc'y Hill
Condo. Ass'n, Inc. v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177 (App. Div.
2002) (quoting R. 2:6-1(a)(1)(H)), and this court is not "obliged to attempt
review of an issue when the relevant portions of the record are not included, "
Cmty. Hosp. Grp., Inc. v. Blume Goldfaden Berkowitz Donnelly Fried & Forte,
PC, 381 N.J. Super. 119, 127 (App. Div. 2005). Our analysis of plaintiff 's
arguments, at least in part, is therefore necessarily confined to our review of the
court's findings under N.J.S.A. 2A:34-23(j)(3).
A-0472-17T1
19
plaintiff's contention, it was not error for the court to focus on the amount of
alimony plaintiff received prior to defendant's motion. The statute requires
consideration of "the ability of the obligee to have saved adequately for
retirement," N.J.S.A. 2A:34-23(j)(3), as well as "[t]he obligee's level of
financial independence and the financial impact of the obligor's retirement upon
the obligee," N.J.S.A. 2A:34-23(j)(3)(g). The court conducted the requisite
analysis here.
The court also correctly declined to consider defendant's anticipated
receipt of payments from Global Essence for his interest in the companies in
assessing his ability to pay alimony following his retirement. N.J.S.A. 2A:34-
23(j)(4) provides that "assets distributed between the parties at the time of the
entry of a final order of divorce or dissolution of a civil union shall not be
considered by the court for purposes of determining the obligor's ability to pay
alimony following retirement." As part of the equitable distribution of the
property in the judgment of divorce, plaintiff had been paid for her share of
defendant's interest in Global Essence, and therefore the court was precluded
from considering defendant's payment for his interest in Global Essence in its
determination of defendant's ability to pay following his retirement. Ibid.
A-0472-17T1
20
We also find no error in the motion court's application of laches to deny
plaintiff's claim to $5000 in counsel fees. Laches is an equitable principle that
bars litigants from asserting claims where their delay in so doing causes the
answering party to be prejudiced by said delay. See Gladden v. Pub. Emp. Ret.
Sys. Tr. Bd., 171 N.J. Super. 363, 370-71 (App. Div. 1979). Laches "involves
more than mere delay, mere lapse of time. There must be delay for a length of
time which, unexplained and unexcused, is unreasonable under the
circumstances and has been prejudicial to the other party." Nw. Covenant Med.
Ctr. v. Fishman, 167 N.J. 123, 140 (2001) (quoting W. Jersey Title & Guar. Co.
v. Indus. Tr. Co., 27 N.J. 144, 153 (1958)); see also Lavin v. Bd. of Educ. of
Hackensack, 90 N.J. 145, 152-53 (1982) (discussing the factors courts must
consider when determining if laches applies).
Plaintiff failed to assert her claim for the $5000 counsel fee for seven
years, and defendant certified he paid plaintiff the $5000 but no longer had the
documentation confirming the payment. Plaintiff offered no explanation for her
delay in asserting the claim and the record otherwise supports the court's finding
that defendant was prejudiced by the delay. See Hoff v. Hoff, 157 N.J. Super.
503, 509 (App. Div. 1978) (holding laches did not apply where movant failed to
A-0472-17T1
21
show prejudice). We therefore discern no basis to reverse the court's
determination.
We also find no error in the court's rejection of plaintiff's claim for
enforcement of defendant's obligation to make the balloon payment. The record
before the court supports its finding that plaintiff accepted a final balloon
payment from defendant, plaintiff did not present evidence disputing that fact,
and plaintiff did not present competent evidence showing she was entitled to
additional sums for the balloon payment. The court's determination is
substantially supported by the record evidence, and we therefore discern no basis
to disturb it. Gnall v. Gnall, 222 N.J. 414, 428 (2015).
Affirm.
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ELIZABETH SOWELL-ZAK VS. GARY ZAK (FM-13-1164-09, MONMOUTH COUNTY AND STATEWIDE)
Combined Opinion