M.R. VS. F.B., AND K.B., LEGAL GUARDIAN FOR S.R. (FM-18-0003-11, SOMERSET COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3748-16T1

M.R.,

Plaintiff-Appellant,

v.

F.B., deceased, and
K.B., legal guardian
for S.R.,

Defendants-Respondents.

_______________________________

Submitted March 8, 2018 – Decided July 13, 2018

Before Judges Haas and Gooden Brown.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Somerset
County, Docket No. FM-18-0003-11.

Villani & Deluca, PC, attorney for appellant
(Benjamin M. Hoffman, on the brief).

Respondents have not filed a brief.

PER CURIAM

In this post-judgment matrimonial case, plaintiff (father)

appeals from a March 24, 2017 Family Part order denying his motion

to terminate or modify his support obligation for his then twenty-
five-year-old autistic son, S.R.,1 and awarding attorney's fees

based on plaintiff's bad faith. We affirm in part and reverse in

part.

We glean the following facts from the record. Plaintiff and

defendant (mother) married in 1989. Two children were born of the

marriage, J.R., born September 1990, and S.R., born February 1992.

The parties divorced in New York in 1997. Defendant moved to New

Jersey with the two children shortly thereafter, and plaintiff

moved into a house in Brick, New Jersey, which he had purchased

prior to the parties' marriage.

On September 21, 2009, plaintiff moved to register the New

York Judgment of Divorce (JOD) in New Jersey and to reduce his

child support obligation, which the JOD initially set at $485 per

week, with built-in increases over the ensuing years. Defendant

filed a cross-motion to enforce the JOD and enter a judgment

against plaintiff for unpaid child support as well as other relief.

On November 13, 2009, the trial court entered an order

domesticating the foreign judgment and, on April 20, 2010,

following a plenary hearing, reduced plaintiff's child support

obligation to $327 per week from September 21, 2009 to December

31, 2009, with a further reduction to $305 per week beginning

1
We use initials to protect the children's privacy.

2 A-3748-16T1
January 1, 2010. The court also fixed plaintiff's total arrears

as of September 21, 2009, at $110,956, entered judgment in favor

of defendant in that amount, and ordered plaintiff to pay $120 per

week on arrears, for a combined total of $425 per week, effective

January 1, 2010.

In granting the reduction, the court determined that the

decline in plaintiff's financial circumstances and J.R. becoming

a full-time residential college student since the JOD was entered

"constitute[d] a change in circumstances, requiring that child

support be recalculated." According to the court, when the JOD

was entered, child support was based on plaintiff earning $80,000

and defendant earning $51,000 per year. Shortly after the divorce,

plaintiff declared bankruptcy and switched careers, while

defendant's income increased, resulting in "some degree of a

reversal in fortunes."

Nonetheless, finding plaintiff's "continued failure to be

gainfully employed . . . unacceptable," the court imputed to

plaintiff an income of $77,000 for 2009 and $65,000 for 2010,

based largely on the operation of a parking lot leasehold he

purchased in 2008, while defendant earned $121,703 in 2009 and

$114,000 in 2010. In recalculating plaintiff's child support

obligation, the court added to the Child Support Guidelines

(Guidelines) $350 in weekly extraordinary expenses to be

3 A-3748-16T1
apportioned between the parties for S.R.'s specialized care as

S.R. had a "constant need for a [full-time] care provider."

Subsequently, plaintiff moved to emancipate J.R. and

terminate his child support, and to recalculate child support for

S.R. based on the parties' financial circumstances at the time.

Defendant cross-moved to: (1) find plaintiff in violation of

litigant's rights for failure to pay child support in accordance

with the April 20, 2010 order; (2) depose plaintiff as to his

"current assets, income, and liabilities"; (3) update the existing

judgment against plaintiff for child support arrears; (4) compel

plaintiff to sell his home in Brick to pay his arrears; and (4)

obtain counsel fees and costs.

On May 27, 2016, with defendant's consent, the court

emancipated J.R., effective July 1, 2015. The court then

recalculated child support for S.R., imputing annual income to

plaintiff of $65,000 and utilizing defendant's reported annual

income of $135,000 for 2015, to reduce plaintiff's child support

obligation to $264 per week, with arrears of $120 per week. The

court rejected plaintiff's claim that he earned significantly less

than the amount imputed to him in 2010, finding plaintiff's Case

Information Statement (CIS) and "related financial documents and

testimony as to [his] current lifestyle to be at best

mischaracterized, and at worst misrepresented."

4 A-3748-16T1
 Based on plaintiff's "persistent and pervasive pattern of

non-compliance with [c]ourt [o]rders and history of delinquency

in the payment of child support," the court also entered an updated

judgment in favor of defendant totaling $148,324.73 for child

support arrears. Additionally, the court awarded defendant $3200

in counsel fees pursuant to Rule 5:3-5(c), Rule 4:42-9, and R.P.C.

1.5(a), and ordered plaintiff to provide the requested discovery

and submit to a deposition. The court, however, denied without

prejudice defendant's motion to compel plaintiff to sell his Brick

home.

Plaintiff moved for reconsideration of the child support and

counsel fee awards, which motion was denied on August 25, 2016.

The court determined that plaintiff's reconsideration motion was

"[p]rocedurally . . . out of time" and

"[s]ubstantively . . . failed to present any new, relevant and

material facts that were not already disclosed and considered by

the [c]ourt."

On September 20, 2016, defendant died from cancer, leaving

her daughter, K.B., to serve as executor of her estate and S.R.’s

legal guardian. Prior to her death, defendant had filed another

motion to compel the sale of plaintiff's Brick home to satisfy the

arrears judgment. In her capacity as S.R.'s legal guardian, K.B.

5 A-3748-16T1
pursued the motion on S.R.'s behalf,2 certifying, in accordance

with Rule 4:59-1(d), that her efforts to execute against

plaintiff's personal property were unsuccessful because plaintiff

had no assets other than the Brick home. K.B. certified further

that through her own investigation, she discovered that plaintiff

had misrepresented the equity and the value of the property. K.B.

also sought counsel fees in connection with the motion, totaling

$3327.50.

Plaintiff opposed the motion and cross-moved for a

recalculation of his child support obligation for S.R. pursuant

to Rule 4:50-1. Plaintiff asserted the May 27, 2016 child support

order should be vacated or modified in light of the new law,

N.J.S.A. 2A:17-56.67, terminating child support by operation of

law at age nineteen, but no later than age twenty-three.

Additionally, plaintiff certified the judge erred because he

"used the . . . Guidelines to calculate child support for [S.R.],"

instead of "the factors set forth under N.J.S.A. 2A:34-23."

Accordingly, plaintiff sought all expenses associated with S.R.'s

care in order to assess his needs as well as "any and all documents"

regarding defendant's Will and estate to determine whether S.R.

2
In a subsequent order, the judge replaced all references to
defendant with K.B. as the real party in interest, pursuant to
Rule 4:26-1.

6 A-3748-16T1
was the beneficiary of any life insurance policy or asset in

defendant's estate.

In the alternative, plaintiff argued that if the Guidelines

applied, then he should receive a credit "for 156 overnights per

year" based on his increased parenting time since defendant's

death. Plaintiff asserted that the increased parenting time

constituted "a change of circumstances," justifying a

modification.

K.B. disputed plaintiff's contention that the Guidelines did

not apply because S.R., then twenty-four years old, was "non-

verbal and [had] behavioral issues and cognitive limitations that

will require him to receive care the rest of his life." According

to K.B., unlike "an unemancipated college student who lives on

campus or away from his custodial parent's home," S.R. "will never

be emancipated or live away from home," rendering N.J.S.A. 2A:34-

23 inapplicable. K.B. further asserted the new law did not apply

because it did not go into effect until February 1, 2017, and, in

any event, would not apply to S.R. because he was disabled prior

to reaching the age of nineteen and required continued support.

K.B. also disputed plaintiff's claim of increased parenting

time since defendant's death, certifying that plaintiff had not

had any overnight visits with S.R. since December 2016, when S.R.

returned home with a black eye after being in plaintiff's care,

7 A-3748-16T1
and S.R.'s caregivers determined "that [p]laintiff should only be

allowed supervised parenting time." K.B. asserted plaintiff's

motion was really yet another motion for reconsideration of the

May 27, 2016 order.

On January 6, 2017, after oral argument, the court granted

K.B.'s motion to compel the sale of plaintiff's Brick home "to

satisfy [p]laintiff's child support arrears" and awarded K.B.

"sole authority to list, market, negotiate, [and] sell the

property, and execute all [necessary] documents." After

determining the Rule 5:3-5(c) factors predominantly "weigh[ed] in

[d]efendant's favor," the court awarded K.B. counsel fees because,

despite the absence of bad faith, the "fees were incurred in part

to enforce a previous [c]ourt order" for which K.B. "should not

solely bear the cost." Additionally, according to the judge,

counsel's "[c]ertification of [s]ervices [was] reasonable."

In rejecting plaintiff's argument that N.J.S.A. 2A:34-23

applied instead of the Guidelines, the court determined that S.R.

attended a special needs school, which constituted "'other'

secondary education" under the Guidelines. The court ruled further

that N.J.S.A. 2A:17-56.67 did not apply because the law became

effective in February 2017, subsequent to plaintiff's application.

Additionally, the court concluded that "even under the new law

[S.R.] would be entitled to continued child support" because of

8 A-3748-16T1
the law's special provision for children with preexisting physical

or mental disabilities requiring continued support. Finally, the

judge rejected plaintiff's request for a modification based on

changed circumstances, finding that plaintiff failed to meet his

burden of proof based on K.B.'s undisputed claim that plaintiff

no longer exercised overnight parenting time following the

physical abuse incident.

When defendant died on September 20, 2016, Probation placed

a hold on defendant's child support account, pending closure. K.B.

filed a motion, seeking continued weekly child support from

plaintiff, her designation as the beneficiary on the Probation

account, and Probation's enforcement of any child support arrears

accumulating since defendant's death. In support, K.B. certified

that, as the sole caretaker of S.R., she required child support

to meet his needs because his Social Security Income (SSI) was

insufficient.

In opposition, plaintiff asserted that the Guidelines did not

apply to children over the age of eighteen, and K.B. had refused

to supply him with documentation regarding the income and expenses

associated with S.R. to establish a support figure. He averred

that since defendant's death, S.R.'s social security benefit

increased from $362.48 to $1879 per month. In addition, he

certified that S.R. had a part-time job, earning minimum wage. He

9 A-3748-16T1
argued that without information concerning state and federal aid

received by S.R. for schooling and other needs, any life insurance

proceeds or death benefits S.R. received when defendant died, or

the balance of a special needs trust established in S.R.'s name,

there was no way to justify the claim that S.R.'s needs were not

being met. Plaintiff asserted that the requested information may

reveal a change of circumstances occasioned by defendant's death

and resulting increase in S.R.'s social security benefit,

warranting a modification of child support.

In reply, K.B. urged the court to deny plaintiff's request

as resolved or moot. K.B. certified that she had already provided

proof from Social Security Administration, evidencing S.R.'s

increased monthly benefit amount. According to K.B., S.R.'s only

additional government benefit was Medicaid, which paid for his

school that he had attended since he was a young child. She

averred further that there were no bank statements for S.R.'s

special needs trust because no bank account was ever opened in

conjunction with the creation of the trust.

On February 10, 2017, after oral argument, the court

determined that pursuant to N.J.S.A. 2A:17-56.67(b), as of

February 1, 2017, the effective date of the statute, child support

could no longer be collected for S.R. through Probation because

he was over twenty-three years of age. As a result, Probation

10 A-3748-16T1
could only collect and enforce arrears. However, the judge ordered

plaintiff to pay a financial maintenance award of $264 per week

directly to K.B. for S.R.'s ongoing care as permitted by N.J.S.A.

2A:17-56.67(e). Further, the judge ordered Probation to designate

K.B. as the obligee on the child support account in order to

collect and enforce arrears from September 2016 to February 1,

2017.

As to plaintiff's request for information, the court noted

that while defendant's death would constitute a changed

circumstance entitling him to the information, plaintiff did not

dispute K.B.'s certification that she had provided the information

and did not point to any other specific omitted documentation.

Accordingly, the court denied plaintiff's request as moot.

Prior to the entry of the February 10, 2017 order, plaintiff

moved for reconsideration of the provisions of the January 6, 2017

order compelling the sale of his Brick house, denying modification

of child support, and awarding counsel fees. Additionally,

plaintiff moved for a modification of his child support obligation

based upon the new law as well as a substantial change of

circumstances, including S.R.'s receipt of Social Security

Disability (SSD) benefits. Plaintiff also requested any support

obligation be deemed as financial maintenance in accordance with

the new law. Further, plaintiff sought an order compelling K.B.

11 A-3748-16T1
to provide a CIS as it related to S.R.'s needs and monthly

expenses, all documents regarding defendant's Last Will and

Testament as it related to whether S.R. was a beneficiary of any

life insurance policy or other assets of defendant's estate, and

all federal and state financial aid documents evidencing S.R.'s

receipt of benefits.

In support of the motion, as to counsel fees, plaintiff

certified that he had no ability to pay legal fees. As to child

support, plaintiff certified the judge failed to address the fact

that S.R. was receiving $1879 per month in SSD, rather than the

$362.48 monthly SSI he received before defendant's death, and the

SSD was never included in the child support calculation. Plaintiff

averred further that the court failed to consider whether S.R.

received any life insurance proceeds or other assets as a result

of defendant's death that may have defrayed his expenses.

Plaintiff also stated that because of the new law, his payments

could no longer be considered child support payable through

Probation but rather, financial maintenance.

K.B. objected to the motion and cross-moved for other relief,

including an award of counsel fees in connection with the

underlying motion. To support her cross-motion, K.B. certified

that plaintiff paid neither the $3327.50 nor $3200 in counsel fees

awarded in the January 6, 2017 and May 27, 2016 orders,

12 A-3748-16T1
respectively. She asserted that plaintiff continued to act in bad

faith by filing "frivolous [m]otions that [had] already been

adjudicated" and "meritless requests for reconsideration."

Additionally, K.B. asserted that plaintiff's contentions

regarding child support were moot because the judge had already

considered S.R.'s $1879 SSD benefit and converted child support

to financial maintenance in the February 10, 2017 order. Moreover,

K.B. averred that plaintiff failed to show changed circumstances

to warrant a modification, failed to provide a complete and updated

CIS, and misrepresented his income.

On March 24, 2017, after oral argument, the court denied all

but one of plaintiff's applications. As to the prior counsel fee

awards, the court determined that plaintiff failed to allege that

the court erred or failed to consider probative or competent

evidence as required by Rule 4:49-2. In awarding K.B. additional

counsel fees for the underlying motion, the court explained that

plaintiff's claim that he lacked the financial ability to pay

counsel fees was not a consideration because "[p]laintiff [had]

acted exclusively in bad faith" by failing to comply with virtually

every court order, including his failure to pay child support,

obtain life insurance, and cooperate with the sale of his Brick

home.

13 A-3748-16T1
 Moreover, according to the court, K.B. had "incurred

substantial legal fees in connection with this matter," her fees

"were incurred in part to enforce a previous [c]ourt [o]rder," and

she had been "more successful" than plaintiff in obtaining the

relief sought. Applying the Rule 5:3-5(c) factors,3 the court

found that factors three, four, five, seven, and eight weighed in

K.B.'s favor; factors one, two, and six did not support an award

of fees; and factor nine had no weight. Therefore, the court

concluded, "the factor[s] that . . . favor[ed] an award

outweigh[ed] the ones that [did] not." After scrutinizing K.B.'s

counsel's certification of services in accordance with Chestone

v. Chestone, 322 N.J. Super. 250 (App. Div. 1999), the court

3
Under Rule 5:3-5(c), a court should consider the following
factors when determining a counsel fee award:

(1) [T]he financial circumstances of the
parties; (2) the ability of the parties to pay
their own fees or to contribute to the fees
of the other party; (3) the reasonableness and
good faith of the positions advanced by the
parties both during and prior to trial; (4)
the extent of the fees incurred by both
parties; (5) any fees previously awarded; (6)
the amount of fees previously paid to counsel
by each party; (7) the results obtained; (8)
the degree to which fees were incurred to
enforce existing orders or to compel
discovery; and (9) any other factor bearing
on the fairness of an award.

14 A-3748-16T1
reduced the requested amount to the "compensable" fees and awarded

$2020.75, which was reduced to a judgment.

As to child support, the court denied plaintiff's request to

reconsider the prior ruling applying the Guidelines to calculate

child support instead of the factors set forth in N.J.S.A. 2A:34-

23. The court determined that "[p]laintiff [had] not advanced any

new argument why the . . . Guidelines should not apply, nor [had]

he alleged the [c]ourt erred in the January 6, 2017 [o]rder."

Turning to plaintiff's request to modify the child support

obligation based on changed circumstances, the court noted that

"[p]laintiff's application lack[ed] his prior CIS as required by

[Rule 5:5-4(a)], and this alone would be a basis to deny the

application." "Setting [that] aside," the court determined that

a "substantial increase" in S.R.'s social security benefit

"constitute[d] a substantial change in circumstances warranting

modification of child support."

However, after applying the Guidelines, the court found that

"[p]laintiff's new financial maintenance obligation would be $568

per week, because neither [d]efendant's income nor [S.R.'s] SSI

benefits [could] be factored into the . . . Guidelines." Thus,

plaintiff's obligation under the Guidelines "would more than

double his [existing] obligation." The court noted further that

"whether [S.R.'s] income [was] SSD or SSI, it [did] not appear to

15 A-3748-16T1
work a downward modification of child support in [plaintiff's]

favor."

Acknowledging that "the [c]ourt may deviate or disregard the

Guidelines where it finds good cause to do so" and to avoid "an

injustice," the court determined that deviation from the

Guidelines was warranted to avoid "an unjust result." Accordingly,

the court denied plaintiff's request and ordered him to continue

to pay $264 per week as financial maintenance directly to K.B.

Relying on the February 10, 2017 order, the court denied "as moot"

plaintiff's request that the court "deem[] any future support

payments as financial maintenance" in accordance with the new law,

N.J.S.A. 2A:17-56.67.

The court also denied plaintiff's request that the court

order K.B. to provide a CIS "listing [S.R.'s] needs and monthly

expenses," noting that a CIS was not necessary because S.R.'s

needs were taken into account when child support was calculated

with the Guidelines. Moreover, according to the court, a CIS

"would only be relevant for purposes of income[,] and [defendant]

[was] deceased and no longer [had] an income."

As to plaintiff's request for documents regarding "all

financial aid both federal and state that [K.B.] [was] receiving

on behalf of [S.R.]," relying on the February 10, 2017 order, the

court found that K.B. had "already produced all documents that

16 A-3748-16T1
exist[ed]," and plaintiff had "not advanced any new argument or

provided any objective proof" disputing K.B.'s claim. However,

over K.B.'s objection, the court determined that plaintiff was

entitled to "a copy of [defendant's] Last Will and Testament and

her life insurance policy, or a [c]ertification memorializing the

fact that they [did] not [exist]" to determine whether S.R.

received "significant funds" to render him "independently self-

supporting" and obviate the need for child support. The judge

entered a conforming order, and this appeal followed.

On appeal, plaintiff raises the following points for our

consideration:

POINT I

THE TRIAL COURT ERRED IN
DENYING . . . PLAINTIFF'S REQUEST TO MODIFY
HIS CHILD SUPPORT OBLIGATION BASED UPON [S.R.]
RECEIVING [SSD] WHICH CONSTITUTED A
SUBSTANTIAL CHANGE OF CIRCUMSTANCES AND
WARRANTED A PERIOD OF DISCOVERY AND
[RECALCULATION] OF SUPPORT.

POINT II

THE TRIAL COURT ERRED IN
DENYING . . . PLAINTIFF'S REQUEST TO
RECONSIDER, VACATE, OR MODIFY HIS CHILD
SUPPORT OBLIGATION SET FORTH IN THE MAY 27,
2016 ORDER, BASED UPON THE . . . GUIDELINES NO
LONGER APPLYING GIVEN THE AGE OF THE
PARTIES['] SON BEING [TWENTY-FOUR], THE NEW
LAW IN THE STATE OF NEW JERSEY AS IT RELATES
TO CHILD SUPPORT, AND BASED UPON THE FACTORS
OF N.J.S.A. 2A:34–23.

17 A-3748-16T1
 POINT III

THE TRIAL COURT ERRED IN DENYING THE
PLAINTIFF'S REQUEST TO MODIFY HIS CHILD
SUPPORT OBLIGATION BASED UPON THE MOST RECENT
LAW REGARDING CHILD SUPPORT IN THE STATE OF
NEW JERSEY UNDER [N.J.S.A. 2A:56.67] AND BASED
UPON SAME SHOULD HAVE TERMINATED THE
APPROPRIATE FINANCE MAINTENANCE FOR [S.R.].

POINT IV

THE TRIAL COURT ERRED IN AWARDING ADDITIONAL
ATTORNEY FEES TO . . . DEFENDANT AS THE TRIAL
COURT DID NOT TAKE INTO CONSIDERATION ALL THE
FACTORS SET FORTH UNDER RULE 5:3-5(C) AND
FURTHER DETERMINED BAD FAITH
ON . . . [PLAINTIFF] WHEN SAME DID NOT EXIST
AS WELL AS LACKED INFORMATION TO MAKE A PROPER
COUNSEL FEE DETERMINATION.

Clear standards guide our limited review. "We 'do not disturb

the factual findings and legal conclusions of the trial judge

unless we are convinced that they are so manifestly unsupported

by or inconsistent with the competent, relevant and reasonably

credible evidence as to offend the interests of justice.'"

Llewelyn v. Shewchuk, 440 N.J. Super. 207, 213 (App. Div. 2015)

(quoting Rova Farms Resort, Inc. v. Invr's Ins. Co. of Am., 65

N.J. 474, 484 (1974)). "Also, '[b]ecause of the family courts'

special jurisdiction and expertise in family matters, appellate

courts should accord deference to family court factfinding.'"

Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).

"Accordingly, when a reviewing court concludes there is

18 A-3748-16T1
satisfactory evidentiary support for the trial court's findings,

'its task is complete and it should not disturb the result, even

though it has the feeling it might have reached a different

conclusion were it the trial tribunal.'" Id. at 213-14 (quoting

Beck v. Beck, 86 N.J. 480, 496 (1981)).

However, we confer no special deference upon a trial court's

interpretation of the law, which is subject to plenary review.

See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.

366, 378 (1995). We may also exercise more extensive review of

trial court findings that do not involve a testimonial hearing or

the opportunity to assess witness credibility. Cf. N.J. Div. of

Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (stating

that deference to Family Court conclusions is not required where

"no hearing takes place, no evidence is admitted, and no findings

of fact are made"). Nevertheless, "[r]eversal is reserved only

for those circumstances when we determine the factual findings and

legal conclusions of the trial judge went 'so wide of the mark

that a mistake must have been made.'" Llewelyn, 440 N.J. Super.

at 214 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189

N.J. 261, 279 (2007)).

Furthermore, when a trial court denies a party's motion for

reconsideration, we overturn the denial only in the event the

trial court abused its discretion. See Marinelli v. Mitts &

19 A-3748-16T1
Merrill, 303 N.J. Super. 61, 77 (App. Div. 1997). In determining

whether such an abuse has taken place, we are mindful that a party

should not utilize reconsideration just because of

"dissatisfaction with a decision of the [c]ourt." Capital Fin.

Co. of Del. Valley v. Asterbadi, 398 N.J. Super. 299, 310 (App.

Div. 2008) (alteration in original) (quoting D'Atria v. D'Atria,

242 N.J. Super. 392, 401 (Ch. Div. 1990)).

Rather, trial courts should grant motions for reconsideration

"only under very narrow circumstances." Fusco v. Bd. of Educ.,

349 N.J. Super. 455, 462 (App. Div. 2002). Such circumstances

arise when "either (1) the [c]ourt has expressed its decision

based upon a palpably incorrect or irrational basis, or (2) it is

obvious that the [c]ourt either did not consider, or failed to

appreciate the significance of probative, competent evidence."

Ibid. (quoting D'Atria, 242 N.J. Super. at 401); see also R. 4:49-

2.

Turning to the legal principles applicable to child support

awards, in determining child support, "the trial court has

substantial discretion." Gotlib v. Gotlib, 399 N.J. Super. 295,

308 (App. Div. 2008). "When reviewing decisions granting or

denying applications to modify child support, we examine whether,

given the facts, the trial judge abused his or her discretion."

J.B. v. W.B., 215 N.J. 305, 325-26 (2013) (quoting Jacoby v.

20 A-3748-16T1
Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012)). "The trial

court's 'award will not be disturbed unless it is manifestly

unreasonable, arbitrary, or clearly contrary to reason or to other

evidence, or the result of whim or caprice.'" Id. at 326 (quoting

Jacoby, 427 N.J. Super. at 116).

The gravamen of plaintiff's contention is that the court

erred by relying on the Guidelines and not applying N.J.S.A. 2A:17-

56.67 to his application. According to plaintiff, N.J.S.A. 2A:17-

56.67 terminated his child support obligation by operation of law

because S.R. was over twenty-three years old, and any future

payments would be deemed financial maintenance, which the court

should have calculated using the factors enunciated in N.J.S.A.

2A:34-23, none of which were considered by the court. "[G]iven

the fact that [S.R.] [was] [twenty-four] years of

age, . . . receiving [SSD], working part-time, attend[ing] a

school . . . paid for through either [f]ederal or [s]tate aid and

it [was] completely unknown what his exact expenses [were] and

what specific [f]ederal and state aid [S.R.] [was] receiving,"

plaintiff urges us to vacate the trial court's order and remand

the matter "for a period of discovery as well as an analysis of

[S.R.'s] needs to determine a proper financial maintenance

obligation."

21 A-3748-16T1
 N.J.S.A. 2A:17-56.67, which became effective on February 1,

2017, provides that, generally, "a child support obligation shall

terminate by operation of law without order by the court when a

child reaches [nineteen] years of age." N.J.S.A. 2A:17-56.67(a).

However, if "the child has a physical or mental

disability . . . that existed prior to the child reaching the age

of [nineteen] and requires continued child support," the child's

custodial parent "may submit a written request . . . seeking the

continuation of child support beyond the date the child reaches

[nineteen] years of age." N.J.S.A. 2A:17-56.67(b)(1).

"Notwithstanding the provisions of this section, the

obligation to pay child support shall terminate by operation of

law when a child reaches [twenty-three] years of age," unless

"upon application of a parent," the court converts "a child support

obligation to another form of financial maintenance for a child

who has reached the age of [twenty-three]" "due to exceptional

circumstances including, . . . a mental or physical disability."

N.J.S.A. 2A:17-56.67(e). Pursuant to N.J.S.A. 2A:34-23,

The obligation to pay support for a child
who has not been emancipated by the court
shall not terminate solely on the basis of the
child’s age if the child suffers from a severe
mental or physical incapacity that causes the
child to be financially dependent on a parent.
The obligation to pay support for that child
shall continue until the court finds that the

22 A-3748-16T1
 child is relieved of the incapacity or is no
longer financially dependent on the parent.

However, in assessing the parent's financial obligation for

a child who suffers from a severe mental or physical incapacity,

the court shall consider the following factors:

(1) Needs of the child;

(2) Standard of living and economic
circumstances of each parent;

(3) All sources of income and assets of each
parent;

(4) Earning ability of each parent, including
educational background, training, employment
skills, work experience, custodial
responsibility for children including the cost
of providing child care and the length of time
and cost of each parent to obtain training or
experience for appropriate employment;

(5) Need and capacity of the child for
education, including higher education;

(6) Age and health of the child and each
parent;

(7) Income, assets and earning ability of the
child;

(8) Responsibility of the parents for the
court-ordered support of others;

(9) Reasonable debts and liabilities of each
child and parent; and

(10) Any other factors the court may deem
relevant.

[N.J.S.A. 2A:34-23(a).]

23 A-3748-16T1
Additionally, "the court shall consider . . . the child’s

eligibility for public benefits and services for people with

disabilities and may make such orders, including an order involving

the creation of a trust, as are necessary to promote the well-

being of the child." Ibid.

Here, the court correctly determined in the January 6, 2017

order that N.J.S.A. 2A:17-56.67 did not apply to plaintiff's

application because the law did not become effective until February

1, 2017. The court further determined that "even under [N.J.S.A.

2A:17-56.67] [S.R.] would be entitled to continued child support"

under the provision for continued support for children with

physical or mental disabilities that existed prior to the age of

nineteen. On plaintiff's motion to reconsider that order, the

court denied the motion, finding no error in the ruling. As to

that finding, we discern no abuse of discretion and affirm that

provision of the March 24, 2017 order.

However, in denying plaintiff's new modification request, in

its March 24, 2017 order, the court incorporated its prior

conclusions regarding the new law, without further analysis, and

denied plaintiff’s request, reasoning that plaintiff's obligation

under the Guidelines would be higher than his existing obligation.

The court also noted that its February 10, 2017 order had already

24 A-3748-16T1
converted the weekly child support payment to financial

maintenance payments payable directly to K.B. in accordance with

N.J.S.A. 2A:17-56.67. However, the court simply adopted the award

previously calculated with the Guidelines, rather than

recalculating a financial maintenance obligation utilizing the

N.J.S.A. 2A:34-23 factors, including S.R.'s eligibility for public

benefits and services for people with disabilities. In so doing,

we agree with plaintiff that the court erred, and we reverse that

provision of the order and remand to the trial court for

consideration of the N.J.S.A. 2A:34-23 factors. In light of our

decision, we need not address plaintiff's other contentions

relating to the child support award.

Turning to plaintiff's challenge to the trial court's award

of counsel fees, "[w]e will disturb a trial court's determination

on counsel fees only on the 'rarest occasion,' and then only

because of clear abuse of discretion." Strahan v. Strahan, 402

N.J. Super. 298, 317 (App. Div. 2008) (quoting Rendine v. Pantzer,

141 N.J. 292, 317 (1995)). Here, we find no clear abuse of

discretion and uphold the court's counsel fee award substantially

for the reasons set forth in the court's statement of reasons,

which analyzed all of the factors under Rule 5:3-5(c). Although

our decision affords plaintiff limited relief, it does not

25 A-3748-16T1
overshadow the court's finding of "bad faith" on plaintiff's part

by failing to comply with virtually every court order.

Affirmed in part, reversed in part, and remanded for further

proceedings consistent with this opinion. We do not retain

jurisdiction.

26 A-3748-16T1