SHARON MILLER GROMEK VS. VITOLD F. GROMEK (FM-14-0006-10, MORRIS 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NOT FOR PUBLICATION WITHOUT THE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-1494-15T1

SHARON MILLER GROMEK,

Plaintiff-Respondent,

v.

VITOLD F. GROMEK,

Defendant-Appellant.
_________________________________

Argued May 22, 2018 – Decided June 5, 2018

Before Judges Yannotti and Mawla.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FM-14-0006-10.

Vitold F. Gromek, appellant pro se.

Respondent Sharon Miller Gromek has not filed
a brief.

PER CURIAM

Defendant Vitold F. Gromek appeals from an October 27, 2015

order, which denied his motion for relief from a December 10, 2014

order entered following a plenary hearing addressing alimony,
child support, college contribution, and attorney's fees. We

affirm.

We glean the following facts from the record. The parties

were married in 1982. Two children were born of the marriage,

both of whom are now emancipated. The parties divorced in 1999

following a three-day trial. Defendant appealed from the trial

judge's decision, and we remanded in part for the trial judge to

address certain aspects of the alimony computation, equitable

distribution, and counsel fees. Gromek v. Gromek, No. A-0480-99

(App. Div. Jan. 17, 2002); Gromek v. Gromek, No. A-6302-99 (App.

Div. Jan. 17, 2002).

The trial judge made findings on the remanded issues, and

defendant appealed. We affirmed in part, and reversed and remanded

in part the trial judge's determination. Gromek v. Gromek, No.

A-4825-03 (App. Div. Oct. 27, 2005). Pertinent to the present

appeal, in our remand we: established the budget for plaintiff on

which the trial judge was again directed to calculate alimony and

child support; directed probation to credit defendant's account

in the event the support recalculation on remand resulted in excess

payment of support; addressed credits to defendant against

equitable distribution of the parties' Nantucket residence; and

awarded plaintiff counsel fees from defendant's share of equitable

distribution of the residence.

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 These issues, which were remanded in 2005, were subject to a

trial before a different judge who also adjudicated other post-

judgment matters, including defendant's request to: terminate

child support, terminate or reduce alimony, and reduce or eliminate

his obligation to contribute to the children's college costs.

Subsequent to our remand, the judge entered two preliminary orders

dated November 4, 2011, adjudicating alimony, child support, and

reimbursements from the Nantucket property. Defendant sought

reconsideration, which the judge granted in part in an order dated

February 2, 2012.

The trial judge also entered a separate order on February 22,

2013, addressing defendant's motion for reconsideration of the

judge's rulings regarding child support and the dispute over

probation's calculation of defendant's arrears. Defendant sought

reconsideration of this order, which the judge denied on August

14, 2013. The judge found defendant had advanced no legitimate

basis to grant reconsideration. The judge also noted a plenary

hearing had been scheduled to address the dispute.

Eventually, a fourteen-day trial ensued, which resulted in

the entry of a final order on December 10, 2014. The trial judge

determined the parties' children were emancipated as of January

1, 2012, and terminated defendant's child support obligation as

of that date. The judge denied defendant's motion to terminate

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alimony, but reduced his alimony obligation from $600 to $498 per

week, effective June 1, 2012. The judge found defendant was

responsible for fifty percent of the children's undergraduate

college costs, and fifty percent of the payments plaintiff

previously made for those costs. The judge awarded plaintiff

$131,865.45 in counsel fees and costs. Defendant appealed from

the December 10, 2014 order, but it was dismissed for failure to

perfect the appeal. Gromek v. Gromek, No. A-3067-14 (App. Div.

June 11, 2015).

The parties' motion practice continued, resulting in the

order now under appeal, which addressed forty-seven requests for

relief. Plaintiff's motion largely sought enforcement of the

December 10, 2014 order. Citing Rule 4:50-1, defendant's motion

argued the December 10, 2014 order was "so defective, so replete

with errors, as it relates to child support, attorney fees, and

college expenses that it should be voided and re-litigated." He

also sought reconsideration of the emancipation date for one of

the children, and the counsel fee award. Additionally, as part

of his ongoing disputation of probation's arrears calculation,

defendant sought to compel plaintiff to produce documentation for

all funds she received or had held for her benefit outside of

probation. A different judge heard the motions, and denied

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defendant's requests, noting the relief defendant sought should

have been addressed on appeal. This appeal followed.

I.

We begin with our standard of review. A trial court's

findings "should not be disturbed unless '. . . they are so wholly

insupportable as to result in a denial of justice[.]'" Rova Farms

Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)

(quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App.

Div.), aff'd o.b., 33 N.J. 78 (1960)). When the trial court's

findings are "supported by adequate, substantial and credible

evidence[,]" those findings should be upheld on appeal. Id. at

484.

"[O]ur appellate function is a limited one: 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."

Fagliarone v. N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963);

see also Rova Farms, 65 N.J. at 484. The function of this court

is to determine whether there is "substantial evidence in support

of the trial judge's findings and conclusions . . . ." Weiss v.

I. Zapinsky, Inc., 65 N.J. Super. 351, 357 (App. Div. 1961).

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 II.

As we noted, defendant styled his motion as one for

reconsideration, but cited Rule 4:50-1, and specifically argued

the December 10, 2014 order was void and generally unjust. Thus,

defendant's argument implicated Rule 4:50-1(d) and (f), which

provide:

On motion, with briefs, and upon such terms
as are just, the court may relieve a party or
the party's legal representative from a final
judgment or order for the following reasons:
. . . (d) the judgment or order is void; . . .
or (f) any other reason justifying relief from
the operation of the judgment or order.

Generally, "[c]ourts should use Rule 4:50-1 sparingly, [and] in

exceptional situations[.]" Hous. Auth. of Morristown v. Little,

135 N.J. 274, 289 (1994). Relief under Rule 4:50-1 "is designed

to reconcile the strong interests in finality of judgments and

judicial efficiency with the equitable notion that courts should

have authority to avoid an unjust result in any given case."

Manning Eng'g, Inc. v. Hudson Cty. Park Comm'n, 74 N.J. 113, 120

(1977) (citing Hodgson v. Applegate, 31 N.J. 29, 43 (1959)).

Under Rule 4:50-1: "No categorization can be made of the

situations which warrant redress under subsection (f). . . . [T]he

very essence of (f) is its capacity for relief in exceptional

situations. And in such exceptional cases its boundaries are as

expansive as the need to achieve equity and justice." DEG, LLC

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v. Twp. of Fairfield, 198 N.J. 242, 269-70 (2009) (alteration in

original) (quoting Court Inv. Co. v. Perillo, 48 N.J. 334, 341

(1966)).

On appeal, defendant again challenges the December 10, 2014

order. He claims the support calculation in it was erroneous

because he experienced a changed circumstance after we remanded

the matter. Specifically, on the remand we directed the trial

judge use $127,465 as defendant's income, and he argues his income

was actually $63,487, and claims the trial judge erred when he

failed to use the lower income figure.

Defendant argues the trial judge failed to calculate child

support using the child support guidelines. He asserts the trial

judge's deviation from the guidelines by eighty-eight dollars per

week to meet plaintiff's needs was arbitrary and capricious.

Defendant argues the trial judge incorrectly calculated taxes on

defendant's income because he used estimated taxes rather than

averaging his actual tax liability. He asserts the trial judge's

guidelines calculation incorrectly calculated the medical

insurance premium, unreimbursed health care expenses, parenting

time adjustment, and plaintiff's income.

Defendant claims the trial judge failed to recognize

plaintiff's case information statements (CISs) were false and

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contained erroneous expenses. Defendant asserts plaintiff failed

to provide CISs for certain years.

Defendant argues the trial judge failed to acknowledge

payments defendant made outside of probation. He claims probation

failed to conduct a court ordered audit to account for the correct

date on which his pendente lite support ended and his post-judgment

support obligation began. Defendant argues he overpaid by $4800,

which was not credited to his arrears. He asserts he provided

probation with the proofs, but it refused to accept them, and the

trial judge failed to compel it to do so. Defendant claims his

share of the sales proceeds from the Nantucket home were not

credited to his arrears. He argues probation failed to record the

fact his support obligation was reduced as a result of a child's

emancipation and the reduction in his alimony obligation.

Defendant asserts the trial judge failed to account for and

differentiate child support from college expenses, which resulted

in defendant paying for certain expenses twice. He argues child

support was not recalculated to account for the children's

residence in college.

Defendant asserts plaintiff incurred invalid costs for

college, which resulted in excessive borrowing, and he should not

have to pay for those costs. He argues the trial judge failed to

account for his ability to pay for college. Defendant claims the

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trial judge erred by not considering defendant's argument he should

be absolved of his obligation to contribute to college because he

was not consulted in the process.

Defendant argues the trial judge erred by not permitting

defendant to submit his claim for counsel fees. He asserts he was

denied fees because he was self-represented. Defendant claims the

trial judge failed to address defendant's application to modify

or terminate alimony based on a prospective retirement pursuant

to N.J.S.A. 2A:34-23(j).

Defendant's arguments are unpersuasive. The motion judge

undertook a detailed review comparing the circumstances and

evidence presented to him with the trial judge's decision, and the

record before the trial judge. The motion judge concluded:

There was a motion for reconsideration, again,
appeals taken. There was a vocational expert
at some point who was retained, Dr. Stein, I
know who posited an income range between
[ninety thousand] and [one hundred and twenty
thousand dollars.] The defendant had some
concern that everybody was focused on the high
end of Dr. Stein's number. And I note also
that the [trial judge] did find that the
defendant had sequestered funds in the name
of his sister or otherwise, and I know that's
a finding that the defendant disagree[s] with.

But all of these issues, the alimony, the
dates of emancipation, the level of college
contribution, all of that was subject, or
would have been subject to [a]ppellate review.
It was subject to application for
reconsideration. And you know, whether it's

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 filed five months later, six months later or
seven months later, I really haven’t had
information presented to me such that I could
legitimately say in the interest of justice I
have to do something, a travesty has occurred,
this has to be changed. It can't be allowed
to stand. Recognized and established law was
ignored, or the law has changed, and the
change gave retroactive application to those
changes, none of those things have happened.

Our review of the record leads to the same conclusion. The

trial judge addressed all of defendant's claims regarding alimony,

college contribution and counsel fees, applying the facts to the

relevant factors found in the statute, case law, and court rules.

Therefore, as noted by the motion judge, defendant's remedy was

to appeal the December 10, 2014 decision, rather than present

arguments why he disagreed with the trial decision to the motion

judge, and expect a different outcome pursuant to Rule 4:50-1. As

the motion judge noted, Rule 4:50-1 addresses grounds for

collateral relief from a final order, it does not act as a

substitute for appeal. Defendant's disagreement with the December

10, 2014 order neither demonstrated it was void pursuant to Rule

4:50-1(d) nor established grounds for extraordinary relief under

Rule 4:50-1(f). For these reasons, the motion judge did not abuse

his discretion by declining to re-visit the December 10, 2014

order.

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 Furthermore, although defendant is correct neither the

December 10, 2014 nor the October 27, 2015 order addressed his

claim for counsel fees as a self-represented litigant, the reason

is self-evident. The Supreme Court has held a self-represented

litigant may not claim attorney's fees for the litigant's own

efforts prosecuting a case. Segal v. Lynch, 211 N.J. 230, 260-64

(2012). Therefore, neither judge erred by failing to award

defendant counsel fees.

Finally, we have reviewed the balance of defendant's

arguments, including: the calculation of defendant's income and

tax obligations; the trial judge's guidelines calculation;

defendant's claims regarding plaintiff's CIS data; probation's

calculation of arrears; and defendant's claim to a prospective

retirement. The trial judge found these arguments lacked merit,

and based on our review of the record we also find they lack

sufficient merit to warrant further discussion in a written

opinion. Rule 2:11-3(e)(1)(E).

Affirmed.

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