THOMAS GIBBONEY VS. CATHERINE VERME (FM-04-0691-11, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-5884-17T1

THOMAS GIBBONEY,

Plaintiff-Respondent/
Cross-Appellant,

v.

CATHERINE VERME f/k/a
VERME-GIBBONEY,

Defendant-Appellant/
Cross-Respondent.
_________________________

Submitted March 30, 2020 – Decided July 15, 2020

Before Judges Sumners and Natali.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Camden County,
Docket No. FM-04-0691-11.

Earp Cohn PC, attorneys for appellant/cross-
respondent (Michael William Kiernan, of counsel and
on the briefs).

Pellettieri Rabstein & Altman, attorneys for
respondent/cross-appellant (John A. Hartmann, III, of
 counsel and on the briefs; Nicole Joy Huckerby, on the
briefs).

PER CURIAM

In this post-judgment matrimonial action, defendant Catherine Verme

appeals from three Family Part orders: 1) an August 4, 2017 order in which the

court granted plaintiff's motion to vacate the parties 2012 Final Judgment of

Divorce (FJOD) under Rule 4:50-1(f); 2) a July 18, 2018 order entered after trial

which modified defendant's alimony award from a permanent obligation to a

twelve-year limited term of $450 per week, emancipated the parties' younger

son, and denied her request for attorney's fees; and 3) a September 8, 2017 order

denying defendant's motion for reconsideration. Plaintiff Thomas Gibboney

cross-appeals challenging both the amount and the term of the limited duration

alimony award, the court's child support award, and the denial of his request for

attorney's fees and reconsideration application.

We agree with defendant that the court erred in relying upon Rule 4:50-

1(f) to vacate the 2012 FJOD. The court's factual findings made after a plenary

hearing clearly established that defendant engaged in "other misconduct" as

contemplated by Rule 4:50-1(c), and as such plaintiff's motion to vacate was

untimely under Rule 4:50-2 as it was not filed within one year of the final

judgment. As Rule 4:50-1(c) was applicable, plaintiff was not permitted to rely

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on the "catch all" provision of Rule 4:50-1(f). Instead, the court should have

considered plaintiff's application under the changed circumstances standard

memorialized in the 2012 FJOD and in accordance with the earlier iteration of

the alimony statute rather than the revised alimony statute, N.J.S.A. 2A:34-23.

We accordingly reverse the August 4, 2017 order and remand for further

proceedings regarding the alimony award consistent with our opinion.

We also reverse that portion of the court's July 18, 2018 order

emancipating the parties' son, Luke, as he was clearly still within the sphere of

his parent's influence at the time of plaintiff's application and accordingly

remand for the court to reconsider the child support award to address Luke's

emancipation and the other issues we have identified. We affirm the order to

the extent it denied the parties' requests for attorney's fees.

I.

Plaintiff, then twenty-nine years old, and defendant, then thirty-eight

years old, were married on January 13, 1996. Their first son, Collin, was born

on April 4, 1997, and their second son, Luke, on January 16, 2000.

During the marriage, plaintiff worked as a nuclear medical technician with

Virtua Health System. In 2011, his salary was $92,000, and he was also able to

augment his salary by working occasional overtime. Defendant, a doctor of

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pharmacy and licensed pharmacist, worked for GlaxoSmithKline (GSK) as a

Senior Medical Information Scientist II with a salary of $98,667 in 2008. GSK

characterized her job, which required extensive reading, writing and computer

use, as "sedentary."

Defendant participated in the GSK Group Benefit Plan, which was

administered by Hartford Insurance (Hartford) and provided long-term disability

benefits to qualified employees. Defendant was eligible to receive seventy

percent of her salary if deemed disabled under the terms of the policy.

On July 22, 2008, defendant experienced dizziness and nausea while

driving to work. She consulted several doctors, complaining that she was unable

to drive due to the foregoing symptoms and that she also felt unstable when

walking. She was diagnosed with vestibular neuropathy and prescribed several

medications, including Valium.

GSK agreed to let defendant work from home in the months that followed

based upon a letter sent by a doctor who concluded that she had post-viral right-

sided labyrinthitis and vestibular neuropathy and was unable to drive. In

January 2009, however, GSK withdrew its permission for defendant to work at

home, so she stopped working and collected six months of short-term disability

benefits based upon the results of an independent medical examination (IME).

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 Thereafter, defendant applied for long-term disability benefits through

Hartford and with the Social Security Administration (SSA). Dr. Sandra

Paluzzi, defendant's primary care physician at the time, submitted a letter to

Hartford on July 14, 2009 stating that defendant had vestibulopathy and vertigo,

and was unable to work from home any longer due to "excessive visual

stimulation which worsened her symptoms, including reading, evaluating data

and computer work." Defendant also provided Hartford with medical records

from Dr. Todd Rowan, who had diagnosed defendant with chronic

vestibulopathy. On August 3, 2009, Hartford approved defendant's application

for long-term disability benefits, effective July 19, 2009.

Shortly thereafter, upon learning that defendant had traveled to a baseball

game in Cooperstown, New York, Hartford placed her under video surveillance.

On four dates in September 2009 she was videotaped performing some of the

activities she claimed her disorder precluded her from doing including : (1)

traveling as a passenger in a car; and (2) standing, walking and reaching without

support.

On December 1, 2009, Hartford representative Paul Lombardo met with

defendant at the marital home to discuss her case. Defendant reviewed, edited,

and signed affidavits in which she described her functionality. She then watched

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the surveillance videotapes and confirmed that they accurately depicted her level

of functionality. Defendant explained that her medications made her feel less

dizzy and nauseated and enabled her to be more active.

On December 17, 2009, Hartford sent the surveillance footage, a

transcription of the Lombardo interview, and copies of defendant's affidavits to

Drs. Rowan and Paluzzi. Hartford asked whether they agreed, based upon this

new evidence, that defendant currently had the ability to "function up to [40]

hours per week with no activity limitations or restrictions." Both doctors

answered, "yes."

Hartford terminated defendant's long-term disability benefits on January

14, 2010. In a letter of that date to defendant, Hartford advised that it had

concluded that she no longer met the policy definition of "disabled" and that she

was capable of performing the essential duties of her sedentary position without

limitation. Hartford explained that, in reaching this determination, it had

considered the surveillance videotapes, the Lombardo interview, defendant 's

December 2009 affidavits, medical records received from Drs. Paluzzi and

Rowan, and the letters from those doctors agreeing that defendant could go back

to work.

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 On February 15, 2010, defendant, who had obtained copies of the

December correspondence between Hartford and Drs. Rowan and Paluzzi, wrote

to these doctors disputing the "false and misleading" information provided to

them by Hartford, advising that she was appealing its determination and asking

for their assistance.

On July 12, 2010, defendant's counsel, David Rochman, who had taken

over the matter from defendant's original counsel Thomas Hagner on May 6,

2010, filed an internal appeal with Hartford, relying in part on a July 12, 2010

letter from Dr. Rowan. In that letter, Dr. Rowan stated that defendant's chronic

vestibulopathy seemed to be clinically stable, she required Valium in order to

drive and could not drive on busy highways, she had reached maximal medical

improvement, and because of defendant's driving limitations and difficulty with

head motions, she could not work effectively in her job.

Hartford retained Drs. Sergio Loaiza and Thomas Klein to independently

and separately review defendant's medical records. Both doctors issued reports

detailing the materials they considered, which included separate conversations

with Dr. Rowan, and each determined that defendant had no functional

limitations and could work up to forty hours per week at her current job.

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 Hartford upheld its decision and sent a letter dated November 22, 2010 to

Rochman advising of its determination "to deny benefits [based] on policy

language and all of the documents contained in the claim file" including the

reports from Drs. Loaiza and Klein. It acknowledged defendant's use of Valium.

Hartford advised that Rochman could request copies of all the documents

relevant to its decision, as well as file a civil action under section 502(a) of

ERISA.

On May 5, 2011, Rochman filed an ERISA action on defendant's behalf

against Hartford in state court seeking reinstatement of her long-term disability

benefits. Hartford removed the matter to federal court. On December 20, 2011,

Hartford's attorney provided Rochman with Hartford's initial disclosures, which

included Hartford's administrative claim file and the CD's containing the

surveillance videotape.

Meanwhile, plaintiff filed for divorce after more than sixteen years of

marriage one year earlier on November 4, 2010. In his complaint, he alleged

that both parties had sufficient means to support themselves. Defendant,

through Rochman (whom she had also retained as her divorce attorney), filed an

answer and a counterclaim for divorce. Plaintiff was never ordered to and did

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not pay any pendente lite alimony or child support to defendant from November

2010 through January 2012.

In early 2011, the parties filed cross-motions regarding outstanding

discovery. By order dated March 29, 2011, the trial court directed both parties

to fulfill their discovery obligations and directed defendant to provide plaintiff

with: (1) "full and complete responses to all prior discovery requests within

thirty (30) days, and relating documentation"; (2) "copies of all medical records

for the past three . . . years" and "an authorization allowing [plaintiff] to obtain

same"; and (3) "any and all documentation relating to the claim with the Hartford

disability policy, the [SSA] and any claim with the state of New Jersey within

thirty (30) days." The next day, defendant e-mailed plaintiff and said she would

gather and forward whatever medical records she had.

Two months later, plaintiff's counsel, Howard Mendelson, who believed

that there would not be an alimony award because defendant had not proven her

alleged disability with the limited medical records she had produced, moved in

limine to bar defendant from using any unproduced evidence supporting her

alleged disability in the divorce trial. The trial court granted plaintiff's motion

by order dated May 31, 2011. The trial court also barred defendant from

presenting testimony regarding her disability from any witness not identified by

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May 18, 2011, and ordered her to submit to an IME with Dr. William Wolfe.

Notably, Dr. Wolfe subsequently opined in a report dated June 24, 2011 that

defendant had limitations as a result of her disorder. Dr. Wolfe's report was not

introduced at trial.

On August 15, 2011, immediately prior to the commencement of the

divorce trial, defendant attempted to file an untimely motion in limine seeking

enforcement of the March 29, 2011 order. During oral argument, Rochman

asserted that the defense had complied with the order and produced all the

medical records and documents related to the Hartford appeal, but was owed

discovery from plaintiff. Mendelson disputed Rochman's claimed compliance

with the March 2011 order, but nonetheless represented that he was ready to

proceed to trial and willing to let the court handle any discovery issue that arose.

After finding that defendant's motion had been brought too late for consideration

and acknowledging that it appeared that there were still discovery deficiencies

on both sides, the trial court decided it would not delay the trial and would

fashion appropriate remedies as the need arose.

The parties' divorce trial started on August 15, 2011. On September 7,

2011, the SSA awarded defendant full disability benefits, plus subsidiary

support benefits for each of the parties' minor children, based on a finding that

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she suffered from disequilibrium and bilateral hearing loss which dated back to

January 12, 2009. Because the SSA concluded that defendant's entitlement to

benefits began in July 2009, it paid her and the children retroactive benefits for

2009 and 2010.

In light of the SSA's determination, plaintiff did not present any evidence

at trial to rebut defendant's now-presumed disability. According to Mendelson

and Rochman, defendant's SSA award led everyone to believe that her Hartford

benefits would be reinstated, and that plaintiff would ultimately be relieved of

any alimony award.

During the trial, defendant testified that it was her understanding that

Hartford terminated her long-term disability benefits "based on policy language,

that I had a sedentary job. And that was all they said . . . that's all I recall is

their understanding was policy language." Also at trial, Rochman stated that

plaintiff's counsel had all the requested disability-related records he had in his

possession. Defendant later testified to the same.

On March 28, 2012, the trial court entered the FJOD. Finding that

defendant's disability was "unrefuted," the court awarded defendant permanent

alimony of $450 per week effective January 5, 2012. As each party was to serve

as the parent of primary residence for one of their sons, the court ordered

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plaintiff to pay $68 in weekly child support to defendant and defendant to pay

$87 to plaintiff. The net result was that plaintiff received a weekly credit of $19

towards his alimony payments and would pay defendant $431 each week. With

respect to defendant's retroactive SSA payments, the trial court further

instructed that "said sums shall be retained by [d]efendant in lieu of any

retroactive reward of alimony and/or child support prior to January 5, 2012."

Finally, the trial court emphasized that a reinstatement of defendant's

long-term disability benefits through Hartford would constitute a "changed

circumstance" entitling plaintiff to either a reduction in, or termination of, his

alimony obligation. 1 Accordingly, the court directed defendant to "provide

written notice to [p]laintiff of and concerning the status of the Hartford

Insurance claim including, but not limited to, the date, time and amount of any

award and/or payment to be made in connection therewith."

Two years later, on March 13, 2014, the federal district court granted

summary judgment to Hartford in the ERISA action. In its decision, the court

found that defendant had not "adequately addressed or refuted" the evidence

1
Neither the 2012 FJOD nor the court's March 23, 2012 oral decision contained
language that permitted any modification or termination of the alimony award
based on the law at the time of any subsequent application, which precluded
consideration of the amended alimony statute, N.J.S.A. 2A:34-23.
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obtained by Hartford and that Hartford's decision was properly based upon

"substantial evidence." Neither Rochman nor defendant advised plaintiff or his

counsel of this determination.

Nearly two years later, in February 2016, the parties filed post-judgment

cross-motions seeking various relief. On February 12, 2016, the trial court filed

an order resolving the motions and directing defendant to provide plaintiff with:

(1) "the status of her disability claim with Hartford . . . pursuant to the parties '

[FJOD], including the date, time and amount of any award and/or payment

received by defendant"; and (2) "proof of her current disability status through

SSA, including the current income and benefit statement and any subsequent re-

evaluations conducted by the SSA since the date of the parties' divorce."

Thereafter, defendant provided plaintiff with the last page of the March

2014 federal court opinion dismissing her ERISA claim. Plaintiff obtained the

entire opinion and claimed that this was the first time he learned of the Hartford

surveillance, the purpose of the Lombardo meeting, defendant's affidavits, the

revised opinions of Drs. Rowan and Paluzzi, the opinions of Drs. Loaiza and

Klein, and the January 14, and November 22, 2010 letters explaining Hartford's

decision to terminate defendant's benefits.

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 Plaintiff thereafter hired investigators to conduct surveillance of

defendant on five dates in May, and three dates in June 2016. The resulting

videotapes showed defendant: (1) walking about, including up a hill and on

uneven ground, without assistance or difficulty; (2) carrying bags; (3) reaching

over her head to spray insect spray; (4) gardening; (5) taking out the trash; and

(6) attending a lengthy and busy swim meet in the bright sun. The assigned

investigators, Richard Narisacki and Gerard Russ, prepared reports detailing all

of defendant's activities.

On July 7, 2016, plaintiff filed a motion to reopen the FJOD and vacate

the alimony and child support awards based upon fraud under "Rule 4:50[,]" or

to modify these aspects of the FJOD based upon changed circumstances. In a

letter brief, plaintiff further specified that he was seeking relief under "Rule

4:50-1(f) or Rule 4:50-3." He alleged that the information relied upon by

Hartford to terminate defendant's long-term disability benefits had been

wrongfully withheld from him in the divorce case, and that he had been deprived

of the opportunity to rebut the presumption created by the SSA determination

that defendant was disabled which was the basis for the 2012 alimony and child

support awards. He sought a plenary hearing and an award of counsel fees. In

further support of this motion, plaintiff provided text messages he had received

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from defendant where she mentioned performing a variety of activities (i.e.,

power washing, doing computer work, shoveling snow, traveling to help

hurricane victims), notwithstanding her alleged disability.

In an opposing certification dated August 4, 2016, defendant asserted that

she: (1) had relied on Hagner and Rochman to decide what was disclosed during

the divorce trial; (2) did not understand the "insurance coverage lingo" in the

January 2010 Hartford letter explaining why her benefits were being terminated;

(3) nonetheless, accurately testified at the divorce trial as to why her benefits

were terminated; (4) never said that she was so incapacitated by her disorder

that she could not perform the activities of daily living with the assistance of her

medication; (5) was medicated at the time she was videotaped; (6) did not

engage in any activities that suggested that she could go back to work; and (7)

was found by the IME performed by Dr. Wolfe to have "limitations." She also

cross-moved for various financial relief.

By order filed August 19, 2016, the trial court granted plaintiff's request

for a plenary hearing regarding his motion to reopen or modify the FJOD. It

conducted a plenary hearing over seven days between December 13, 2016 and

May 16, 2017. Notably, during the hearing, it was repeatedly stated that plaintiff

was seeking relief for fraud under Rule 4:50-1(c).

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 Plaintiff testified that before he moved out of the marital home, he saw

defendant gardening, cooking, taking out the garbage, cleaning, going up and

down stairs and using the computer. He felt that she behaved "normally" around

the house. He claimed that she drove "continuously" during this period,

although he acknowledged that she said she could not drive on busy roads.

Plaintiff denied that he helped defendant with either her SSA or Hartford

disability applications or with the Hartford litigation. During the divorce

litigation he received medical records but nothing regarding the Hartford

benefits or litigation. Plaintiff acknowledged that he knew that an interview

with Lombardo had occurred, and that defendant told him when her benefits

were terminated. On cross-examination, plaintiff further acknowledged that he

had observed defendant occasionally stop and stabilize herself, that excessive

computer work made defendant feel dizzy, Dr. Wolfe's IME report said that

defendant did not have the ability to work at that time, and he did not know

whether defendant had taken her medicine on the days she was videotaped.

Mendelson testified that during the divorce proceedings, the defense never

provided him with: (1) the affidavits defendant signed on December 1, 2009;

(2) the Hartford surveillance videotape; (3) the December 17, 2009 letters from

Hartford to Drs. Paluzzi and Rowan and their responses; (4) the letters defendant

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sent to these doctors on February 15, 2010 and April 26, 2010; (5) the January

14, 2010 termination letter from Hartford to defendant; (6) the letters exchanged

between Rochman and Hartford dated July 12, 2010, July 15, 2010, and

November 22, 2010; and (7) the 500-page Hartford file furnished to Rochman

on December 20, 2011.

Mendelson acknowledged that defendant's last minute SSA award created

a presumption that defendant was disabled and that he so advised plaintiff. He

recalled that, in light of this award, and because the items listed above had not

been disclosed by the defense, he believed that defendant's Hartford disability

benefits would be reinstated and that she ultimately would not be entitled to

alimony. Mendelson stated that had there been full disclosure, he would not

have been under this misapprehension and would have attempted to rebut the

presumption that defendant was disabled and incapable of supporting herself

using the withheld information.

Mendelson nonetheless acknowledged that he did not serve subpoenas on

Hartford or the SSA. He explained that he had no reason to think that full

disclosure had not been made in light of the trial court's orders, Rochman's

repeated assertions at defendant's deposition and in court that all requested

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records had been provided, and defendant's testimony that Hartford terminated

her benefits because of policy language that she had a sedentary job.

Rochman denied that he withheld discovery in the divorce case. He

testified that he requested defendant's prior attorney's file when he took over the

Hartford appeal in May 2010, but he received only random documents and did

not recall seeing any medical reports. He conceded, though, that he must have

had the Hartford termination letter when he filed the July 2010 internal appeal.

Rochman insisted that he furnished Mendelson with everything he had in

accordance with the March 29, 2011 order, although he could not recall what he

provided. He acknowledged that he said that plaintiff had all Hartford records

at the March 29, 2011 hearing, and again on August 15, 2011. He could not

recall if he forwarded the Hartford disclosure he received in December 2011,

but justified any impropriety by stating that he no longer had an obligation to

produce anything after the court "closed" discovery with its May 2011 order.

Rochman also asserted that some of the Hartford disclosure did not qualify as

"medical records" that had to be provided to Mendelson, but conceded that the

March 2011 discovery order was not limited to medical records.

Defendant testified that she suffered from a vestibular disorder that caused

her to experience a lack of balance and nausea, which increased when she had

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to move her eyes back and forth or deal with extreme sensory stimulation. She

maintained that her symptoms were the same as they had been in 2009, and that

it was only by taking Valium three or four times a day that she could "talk, stand,

or walk," or drive at very low speeds on back roads.

Defendant insisted that she never intended to hide anything during the

divorce trial. She claimed that contrary to plaintiff's testimony, he helped her

with her first SSA application and with her Hartford disability application, she

told plaintiff about the Hartford surveillance video on December 1, 2009, and

plaintiff read the January 2010 termination letter. Defendant questioned the

relevancy of the 2009 surveillance videotapes, portions of which were played

during her testimony, emphasizing that they did not show her working as a

pharmacist or working full-time on a computer.

Defendant maintained that she provided everything she had regarding the

Hartford claim to Hagner and Rochman, and that she had relied upon Rochman

to comply with the March 2011 order. She believed that Rochman should have

been able to locate relevant documents in the files furnished by Hagner and

Hartford. Defendant also stated that she burned a copy of the disc containing

her SSA file for plaintiff at some point in time.

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 Defendant noted that the SSA and Hartford each defined "disability"

differently. She reiterated her belief that Hartford terminated her benefits based

upon on definitional policy language and her sedentary job description. She did

not recall if she provided more details regarding the contents of the termination

letter during the divorce trial.

On August 4, 2017, the trial court granted plaintiff's motion to vacate the

support provisions of the FJOD pursuant to Rule 4:50-1(f) and ordered a new

trial as to alimony and child support. The court declined to award counsel fees

to either party.

In its accompanying written opinion, the trial court first found that

defendant's attorney "understood that he was required to provide Hartford

documents to [plaintiff's attorney] as they were received[,]" but "the only

document [he] provided . . . was a copy of the Hartford disabilit y policy." It

also found that based upon a March 30, 2011 email by defendant to plaintiff,

"defendant had in her possession all of the documents ordered to be provided in

the March 29, 2011 court order." Those documents included: (1) defendant's

December 1, 2009 affidavits; (2) the 2010 letters from Rowan and Paluzzi to

Hartford; (3) the January 14, 2010 termination letter from Hartford to defendant;

(4) the February 15, 2010 letter defendant sent to Rowan and Paluzzi; (5)

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Rochman's July 12, 2010 notice of appeal to Hartford; (6) the November 22,

2010 letter from Hartford to Rochman denying defendant's appeal; (7) the

Loaiza and Klein reports; and (8) the Hartford administrative file and

surveillance videotapes. The court further found that defendant and her

attorney's "failure to provide these documents constituted a violation of the

March 23, 2011 discovery order and the court's mandate for continuing

disclosure of documents."

The trial court rejected plaintiff's argument that the non-disclosure of

these documents constituted fraud under Rule 4:50-1(c) and was therefore

untimely under Rule 4:50-2 as it was filed "more than one year" after the March

28, 2012 FJOD. It also found that plaintiff was not entitled to relief under Rule

4:50-3 because plaintiff had failed to establish that defendant had committed a

"fraud upon the court." In the court's view, plaintiff had simply established that

defendant had failed to comply with a court order, which was a "far cry from

perjury." In this regard, the court found that although defendant failed to

provide further explanation, she did not testify untruthfully during the divorce

trial that Hartford terminated her disability benefit because of language in its

disability policy.

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 Similarly, the court concluded defendant did not commit a fraud on the

court when she testified that she could not drive, read, do computer work or deal

with sensory overload, as those represented her subjective opinions. Moreover,

even if her counsel made misrepresentations to the court, the court determined

that defendant was not responsible under agency law for any willful misconduct

by her counsel in which she did not participate and there was no proof here that

defendant colluded with her attorney.

The trial court was satisfied, however, that there were exceptional

circumstances which warranted the granting of relief under Rule 4:50-1(f)

stating:

Justice compels a re-trial on the issue of support so that
plaintiff has an opportunity to present his case after a
full disclosure of all relevant materials. Here, justice
was not served in the initial trial because plaintiff was
not in possession of all the facts and defendant and her
attorney were obliged pursuant to a court order and
directive to provide all the information in their
possession . . . . [That] information was important and
the failure of defendant and her counsel to provide the
information denied plaintiff of a fair trial.

Accordingly, the trial court directed that a new trial be held to determine

whether spousal and child support should be awarded and, if support was

awarded, what amount should be awarded and for what duration of time.

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 Finally, in denying fees in connection with plaintiff's motion to vacate and

the resulting hearing, the trial court explained:

In this case, the court finds neither plaintiff nor
defendant are entitled to fees because both parties
violated the court's March 29, 2011 discovery order. As
discussed in detail above, there were several documents
in possession of defendant and/or Mr. Rochman that the
order required to be turned over but never were.
Similarly, under the March 29, 2011 discovery order,
plaintiff was obliged to execute authorizations for
disclosure of the credit line in 226 Sandringham, his life
insurance policies, and his employment file, which he
failed to do. Both parties have unclean hands and for
that reason, neither party should be awarded fees in
connection with this motion and plenary hearing.

Thereafter, child support for the parties' oldest son, Collin, was terminated

in a September 11, 2017 consent order effective August 1, 2017. Both parties

then unsuccessfully moved for reconsideration of the August 4, 2017 order and,

on September 15, 2017, the trial court denied defendant's motion for a stay.

Defendant argued in part that the court had improperly granted relief under Rule

4:50-1(f) when the conduct at-issue fell under subsection (c) and its one-year

limitations period as her actions, along with her counsel, constituted "other

misconduct" under the Rule. The trial court denied defendant's motion, ruling

that her failure to comply with a court order constituted "contumacy," not fraud,

and it ultimately was not important whether the facts fit within subsection (c) or

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(f) because, even if defendant's conduct did amount to fraud, Rule 4:50-1 should

be relaxed in the interest of fairness.

At the new trial, Narisacki, one of the investigators hired by plaintiff,

testified that the portions of his videotape played in court, and as detailed in his

report that was admitted into evidence, depicted defendant: (1) driving to a

beauty supply store where she carried a basket and scanned shelves; (2) carrying

a trash can out of the house and dumping it into a larger can; (3) gardening and

spraying insect spray above her head; (4) spending one hour at a cemetery where

she sat on the ground and got up without assistance; and (5) skipping stairs while

stepping up onto her neighbor's patio.

Narisacki confirmed that he took additional, less notable footage and that

he sent all of his footage to his office electronically. He stated that he made no

edits to the footage and that what was played in court was exactly what he

submitted and documented in his report. He did not know if the remainder of

the tape was unedited.

Russ, the other investigator hired by plaintiff, testified that as reflected on

the portions of his videotape played in court and detailed in his report defendant

was captured: (1) carrying bags; (2) walking first to a bank and then over a curb

and down landscaping to get to a Wawa; (3) rolling out a recycling bin; and (4)

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moving about and cheering enthusiastically while out in the bright sun at a four -

hour crowded and loud swim meet. He similarly uploaded his videotape onto

the company's secured server and did not believe that the tape had been edited

by his employer.

Dr. Roger Behar, a neurologist, also testified on behalf of plaintiff that he

conducted an IME of defendant on December 5, 2016, and reviewed her medical

records and the surveillance videotapes, and thereafter prepared a report setting

forth his conclusions. Behar reported that defendant's neurological exam was

entirely normal, and she had no gait or balance issues.

After reviewing her medical records, and based upon her symptoms and

negative test results, Dr. Behar initially disagreed with every diagnosis made by

all but one of the eight doctors defendant saw during her numerous examinations

and treatment. Behar discussed the tests performed and the findings and

conclusions of each of these doctors (including Dr. Rowan and Dr. Paluzzi and

defendant's current treating physician, Dr. Phillip Kramer), as well as the results

of testing conducted by the Pennsylvania Balance Center (which did include one

abnormal finding), and explained why he did not agree with the varying

diagnoses made.

A-5884-17T1
25
 Notably, Dr. Behar initially agreed that the record supported Dr. Kramer's

final diagnosis of persistent postural dizziness (PPD), a condition combining the

symptoms of imbalance and an intolerance to experiencing and seeing

movement. He explained that PPD made it impossible for sufferers to do things

such as watch television, walk in a busy airport, or stand on an escalator.

When Dr. Behar subsequently watched the 2009 and 2016 surveillance

videotapes, however, he realized that defendant's activities were incompatible

with a PPD diagnosis. Dr. Behar emphasized that if defendant was afflicted by

PPD, she would not have been able to tolerate the swim meet, shop in the beauty

supply store, lean her head back and raise her arms above her head to spray for

insects without falling, or navigate over uneven surfaces without assistance. He

found these recorded activities the most telling signs that defendant did not have

PPD.

Dr. Behar found no evidence that defendant had a neurological or

vestibular condition. He believed that defendant suffered from either chronic

subjective dizziness or was malingering, and that there was no reason she could

not return to work. He did not believe that defendant was deriving much if any

benefit from Valium, which he described as a marginally effective medication

for dealing with dizziness.

A-5884-17T1
26
 On cross-examination, Dr. Behar agreed: (1) he had based his conclusion

regarding PPD on the surveillance video; (2) he was not taught in medical school

to "examine" people by looking at surveillance video; (3) severe chronic

subjective dizziness could manifest if someone were doing a great deal of

reading, working extensively on a computer or driving at higher speeds; and (4)

the surveillance videotapes did not show defendant working in a professional

capacity. Dr. Behar nonetheless insisted that the surveillance video showed that

defendant had a great deal of tolerance for movement around her.

Finally, with respect to the emancipation of Luke, defendant testified that

Luke lived with her and had no plans to move out. She stated that he was

graduating from high school in June and was planning on going to college.

Although he had been accepted at nine colleges, she was not sure what was going

to happen since he had received only $5500 in scholarship monies.

The trial court rendered its opinion and order on July 18, 2018. The court

directed plaintiff to pay defendant $450 per week in limited duration alimony

for twelve years, terminating March 28, 2024, under the revised alimony statute,

N.J.S.A. 2A:34-23, and eliminated both parties' child support obligations. In

determining its alimony award, the court acknowledged defendant's argument

that "the court should utilize the alimony factors in place in 2012[,]" and

A-5884-17T1
27
emphasized that the importance to the parties of whether to apply the revised

alimony statute "rest[ed] almost exclusively on the fact that after the

amendments, for a marriage of less than twenty years, 'the term of alimony shall

not exceed the length of the marriage, except in exceptional circumstances."

(quoting N.J.S.A. 2A:34-23(b)). The court nonetheless rejected defendant's

argument stating that it "vacated the portion of the [FJOD] that required plaintiff

to pay defendant alimony" and "[b]ecause there continues to be no final

judgment of divorce that sets a duration of alimony and because it is 2018, the

2014 amendments apply to this case." The court proceeded to evaluate the

fourteen factors set forth in the revised alimony statute and determined that

defendant was entitled to twelve years of limited duration alimony.

With respect to emancipation of Luke, the trial court ruled that no child

support should be awarded as he "is eighteen years old, has graduated from high

school, and there is no evidence that he is enrolled in college or trade school."

Finally, in denying any award of counsel fees, the trial court reviewed each of

the factors set forth in Rule 5:3-5(c) to determine whether fees were warranted

and concluded that because only one factor weighed in favor of each party, and

these factors were entitled to little weight, neither party was entitled to a fee

award.

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28
 Plaintiff moved for reconsideration as to the alimony termination date ,

which he contended should be January 5, 2024, based upon the FJOD, or

November 4, 2022, because defendant ultimately received pendente lite support

between November 2010 and March 2012 in the form of her retroactive SSA

monies. While this motion was pending, both parties filed notices of appeal and

the trial court denied plaintiff's motion for reconsideration because it no longer

had jurisdiction over the matter.

This appeal and cross-appeal followed. Defendant raises the following

issues in her merits brief:

POINT ONE: THE PLAINTIFF DID NOT
EXERCISE DUE DILIGENCE IN THE
DIVORCE AND RELIEF IS PRECLUDED
UNDER [RULE] 4:50-1.2

POINT TWO: THE COURT ERRED WHEN IT
GRANTED RELIEF UNDER [RULE] 4:50-1(f)
WHERE THE FACTUAL BASIS OF SUCH
RELIEF FALLS SQUARELY UNDER (c).

POINT THREE: THE COURT ERRED WHEN
IT ADMITTED SURVEILLANCE VIDEO
ALONG WITH A DOCUMENT AUTHORED
BY COUNSEL.

POINT FOUR: THE COURT ERRED WHEN IT
CONSIDERED THE PLAINTIFF'S MEDICAL
EXPERT'S OPINION THAT WAS PREMISED

2
We have reorganized the parties' point headings for ease of reference.
A-5884-17T1
29
 ENTIRELY ON SURVEILLANCE VIDEO
WHICH HE ADMITTED IS NOT A METHOD
OF DIAGNOSIS ACCEPTED IN HIS
PROFESSION.

POINT FIVE: THE COURT ERRED WHEN IT
FAILED TO ADMIT ALL THE DEFENDANT'S
MEDICAL RECORDS RELIED UPON BY THE
PLAINTIFF'S MEDICAL EXPERT.

POINT SIX: THE COURT ERRED WHEN IT
APPLIED THE REVISED ALIMONY
STATUTE.

POINT SEVEN: THE COURT ERRED WHEN
IT EMANCIPATED THE PARTIES' MINOR
CHILD.

POINT EIGHT: A RECONSIDERATION OF
AN AWARD OF ATTORNEY FEES AND
COSTS IS WARRANTED WHERE THIS
COURT DETERMINES THAT THE
FOREGOING ARGUMENTS WARRANT
REVERSAL OR OTHER RELIEF.

Plaintiff raises the following points in his merits brief:

POINT ONE: THE TRIAL COURT PROPERLY
DETERMINED THAT PLAINTIFF ACTED
WITH DUE DILIGENCE DURING THE
DIVORCE TRIAL HOWEVER [RULE] 4:50-
1(f) PROVIDES FOR NO SUCH
REQUIREMENT.

POINT TWO: THE TRIAL COURT
PROPERLY GRANTED THE PLAINTIFF'S
MOTION TO REOPEN THE PARTIES'
AMENDED FINAL JUDGMENT OF DIVORCE

A-5884-17T1
30
WITH RESPECT TO ALIMONY AND CHILD
SUPPORT PURSUANT TO [RULE] 4:50-1(f).

POINT THREE: THE TRIAL COURT
PROPERLY ADMITTED 2016
SURVEILLANCE VIDEO AS WELL AS A
DOCUMENT DETAILING THE PORTIONS
OF THE VIDEO PLAYED DURING THE
PLENARY HEARING.

POINT FOUR: THE TRIAL COURT
PROPERLY CONSIDERED DR. BEHAR'S
CREDIBLE EXPERT OPINION.

POINT FIVE: THE TRIAL COURT
PROPERLY APPLIED THE REVISED
ALIMONY STATUTE.

POINT SIX: THE TRIAL COURT PROPERLY
REFUSED TO ADMIT DEFENDANT'S
MEDICAL RECORDS REGARDING
COMPLEX DIAGNOSES ABSENT
TESTIMONY BY THE DOCTORS.

POINT SEVEN: THE TRIAL COURT
PROPERLY DETERMINED THAT NEITHER
PARTY SHALL PAY ONGOING CHILD
SUPPORT TO THE OTHER.

POINT EIGHT: THE TRIAL COURT ERRED
IN AWARDING DEFENDANT LIMITED
DURATION ALIMONY OF $450 PER WEEK.

A. The Trial Court Erred In Determining That
Defendant's Earning Capacity/Imputed
Income Is $43,000 Gross Per Year.

A-5884-17T1
31
 1. The Trial Court Erred When Considering
the Defendant's Absence from the Job
Market By Failing to Consider the Willful
and Voluntary Nature of the Absence, and
By Failing to Consider Her Ability to Earn
From the Outset in 2009.

2. Dr. Levine's Testimony and Opinion Do
Not Support An Imputation of Only
$43,000 Gross Per Year.

B. The Trial Court Erred In Determining The
Defendant's Monthly Needs.

C. The Trial Court Erred in Determining The
Plaintiff's Ability to Pay Alimony As Well As
His Ability to Maintain A Reasonably
Comparable Lifestyle.

D. The Trial Court Erred in Determining that
Alimony Commenced on March 28, 2012.

E. The Trial Court Erred When Considering the
Length and Amount of Pendente Lite Support
Paid in Determining the Length of the Limited
Duration Alimony.

POINT NINE: THE TRIAL COURT ERRED
BY FAILING TO RECALCULATE CHILD
SUPPORT BASED UPON DEFENDANT'S
IMPUTED INCOME AND TO PROVIDE
PLAINTIFF WITH A CREDIT FOR
OVERPAYMENT OF CHILD SUPPORT.

POINT TEN: THE TRIAL COURT ERRED BY
FAILING TO AWARD PLAINTIFF COUNSEL
FEES AND COSTS ASSOCIATED WITH THE
PLENARY HEARING.

A-5884-17T1
32
 II.

With respect to defendant's first point on appeal, we disagree with her

contention that plaintiff failed to exercise due diligence. As the trial court

correctly concluded, plaintiff's conduct was sufficient to fulfill his due diligence

obligation.

We note that due diligence is required when a party brings a motion to

reopen a judgment pursuant to Rule 4:50-1(b). While it is true that, unlike

subsection (b), such a requirement is not expressly set forth in subsection (f),

subsection (f) is grounded in equity, and the court must take into account all

relevant circumstances in deciding whether a judgment must be reopened to

correct an injustice. See US Bank Nat'l. Ass'n v. Guillaume, 209 N.J. 449, 467

(2012); F.B. v. A.L.G., 176 N.J. 201, 207-08 (2003). Whether the party seeking

relief contributed to or inexcusably missed opportunities to avoid the claimed

problem with the judgment would be a relevant circumstance. See Badalamenti

v. Simpkiss, 422 N.J. Super. 86, 103-04 (App. Div. 2011) (ruling that the

plaintiffs were not entitled to relief under Rule 4:50-1(f) because they had not

acted with due diligence in pursuing their claim and the defendants would be

prejudiced if required to re-litigate the case).

A-5884-17T1
33
 Here, once plaintiff secured the March and May 2011 discovery orders,

he was under no obligation, and had no reason, to pursue matters further. He

had a right to expect that defendant would comply with the court's orders. And,

as the court noted, to find otherwise would legitimize defendant's lack of

compliance and reward her for her "contumacy" to plaintiff's detriment. Thus,

we conclude that plaintiff exercised due diligence during the divorce trial as to

defendant's disability and was not precluded from statutory relief on that issue.

III.

As to the parties' second point, while plaintiff was not precluded from

seeking relief pursuant to Rule 4:50-1 for lack of due diligence, we agree with

defendant, however, that the lower court erred in reopening the FJOD pursuant

to Rule 4:50-1(f).

Motions brought pursuant to Rule 4:50-1 should be granted sparingly.

F.B., 176 N.J. at 207. The decision whether to vacate a judgment is a

determination left to the sound discretion of the trial court, guided by principles

of equity, and may not be reversed absent an abuse of that discretion. Ibid.; US

Bank Nat'l. Ass'n, 209 N.J. at 467.

Rule 4:50-1 provides in pertinent part that a trial court may relieve a party

from a final judgment or order where a showing has been made of, among other

A-5884-17T1
34
things, "fraud . . . misrepresentation, or other misconduct of an adverse party,"

or "any other reason justifying relief from the operation of the judgment or

order." R. 4:50-1(c) and (f). The need to reopen a judgment must be established

by clear and convincing evidence. Pavlicka v. Pavlicka, 84 N.J. Super. 357, 366

(App. Div. 1964). It is not necessary to identify the subsection pursuant to which

relief from the judgment is sought. F.B., 176 N.J.at 208. If the relief is sought

on contested facts, the court must hold an evidentiary hearing. Nolan by Nolan

v. Lee Ho, 120 N.J. 465, 474 (1990). Applications seeking relief under

subsection (c) for fraud, misrepresentation or misconduct must be brought

within one year of the judgment. F.B., 176 N.J. at 208 (citing R. 4:50-2).

Rule 4:50-1 "was patterned after Fed. R. Civ. P. 60(b), and '[i]t is therefore

proper to draw on the experience of the federal courts with that rule . . . .'"

Baumann v. Marinaro, 95 N.J. 380, 392 (1984) (quoting Hodgson v. Applegate,

31 N.J. 29, 35 (1959)). In that regard, the United States Court of Appeals for

the Third Circuit held in Stridiron v. Stridiron, 698 F.2d 204, 207 (1983), that

to prevail on a motion brought pursuant to Rule 60(b)(3), "the movant must

establish that the adverse party engaged in fraud or other misconduct, and that

this conduct prevented the moving party from fully and fairly presenting his

A-5884-17T1
35
case." It further held that a "[f]ailure to . . . produce evidence requested in

discovery can constitute Rule 60(b)(3) misconduct." Ibid.

In order to obtain relief from a final judgment under Rule 60(b)(3) an

opposing party or its counsel must have been found to have engaged in the fraud,

misrepresentation, or misconduct. See, e.g., Metlyn Realty Corp. v. Esmark,

Inc., 763 F.2d 826, 832 (7th Cir. 1985) (affirming the District Court's denial of

relief pursuant to Rule 60(b)(3) when neither the party nor its counsel knew that

their expert witness' statements were false); L.I. Head Start Child Dev. Servs.,

Inc. v. Economic Opportunity Commission of Nassau County Inc., 956 F. Supp.

2d 402, 410 (E.D.N.Y. 2013) ("[T]he movant must show . . . that the fraud is

attributable to the party, or at least, to counsel." (Internal quotation marks

omitted)); Abrahamsen v. Trans-State Exp., Inc., 92 F.3d 425, 427-28 (6th Cir.

1996) (vacating a judgment pursuant to Rule 60(b)(3) when the plaintiff's

counsel requested certain statements to be produced and none were produced by

the defendant's counsel, and the defendant's counsel further allowed the

defendant to testify at trial that he never made any such statement).

Federal courts have also held that misconduct under Rule 60(b)(3) does

not require proof of malicious intent or purpose in order to entitle a party to

relief. Anderson v. Cryovac, 862 F.2d 910, 923 (1st Cir. 1988); Londsorf v.

A-5884-17T1
36
Seefeldt, 47 F.3d 893, 897 (7th Cir. 1995). Indeed, in order for the term

"misconduct" to have meaning, it must differ from fraud and misrepresentation.

Anderson, 862 F.2d at 923. Under this expansive view of misconduct, even

accidental omissions qualify and "relief on the ground of misconduct may be

justified 'whether there was evil, innocent[,] or careless, purpose.'" Ibid.

(quoting Bros. Inc. v. W.E. Grace Manufacturing Co., 351 F.2d 208, 211 (5th

Cir.1965)).

Rule 4:50-1(f) is a "catch-all" provision incapable of categorization.

DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 269-70 (2009). It allows for relief

in "exceptional situations" where hardship has been shown and, as such, its

"boundaries are as expansive as the need to achieve equity and justice." Id. at

270 (quoting Court Inv. Co., v. Perillo, 48 N.J. 334, 341 (1966)). It is well

settled, however, that the reason specified cannot fall under any of the

subsections subject to the one-year limitation. Ibid.; accord Manning

Engineering, Inc. v. Hudson County Park Comm'n., 74 N.J. 113, 121-23 (1977).

Here, defendant and her counsel's discovery violations constituted "other

misconduct" for purposes of Rule 4:50-1(c). In this regard, the trial court itself

characterized defendant and her counsel's conduct in failing to produce

documents as "contumac[ious]," which refers to "[c]ontempt of court [or] the

A-5884-17T1
37
refusal of a person to follow a court's order or direction[,]" Black's Law

Dictionary (11th ed. 2019), a conclusion fully supported by the record and the

court's other findings. Indeed, the court found that plaintiff was not in

possession of all relevant and necessary facts regarding defendant's disability

because she failed to provide critical discovery that was in her possession, in

violation of a court order and which prevented plaintiff from a full and fair trial.

That misconduct would justify relief regardless of "'whether there was

evil, innocent[,] or careless, purpose.'" See Anderson, 862 F.2d at 923 (quoting

Bros. Inc., 351 F.2d at 211). And, even if such conduct were attributable to her

counsel, those actions would still constitute "other misconduct" as plaintiff only

needed to demonstrate that the misconduct was "attributable to the party, or at

least, to counsel." See L.I. Head Start Child Dev. Servs., Inc., 956 F. Supp. 2d

at 410; see also Metlyn Realty Corp., 763 F.2d at 832; Abrahamsen, 92 F.3d at

427-28. Consequently, plaintiff's motion under Rule 4:50-1(c) was out of time

and it was, therefore, improper for the trial court to rely upon Rule 4:50-1(f).

Moreover, plaintiff cannot avoid the one-year limitation by claiming fraud

on the court. Fraud on the court requires grossly egregious misconduct, or an

unconscionable plan or scheme, designed to improperly influence the court.

Herring v. U.S., 424 F.3d 384, 386-87 (3d Cir. 2005); Rozier v. Ford Motor Co.,

A-5884-17T1
38
573 F.2d 1332, 1338 (1978). Less egregious misconduct, such as nondisclosure

of pertinent facts, does not qualify as fraud on the court. Ibid.

Finally, we acknowledge that when the court determined that limited

durational alimony was appropriate, it evaluated the statutory factors set forth

in the revised alimony statute. We are, nevertheless, unable to determine to

what extent the revised statute's limitation on total duration of alimony for

marriages less than twenty years affected the trial court's decision in its alimony

award. Further, the court noted that it "ordered a new determination of alimony,

not on the basis of changed circumstances, but in the interest of justice."

Thus, we reverse and remand for reconsideration the court's August 4,

2017 order for a reevaluation of plaintiff's claim using the changed

circumstances standard contemplated by the 2012 FJOD. The purpose of our

remand is to permit the trial court in the first instance to assess and apply the

facts already found which we have concluded are supported by substantial

credible evidence, see page 49 infra, or conduct additional proceedings as the

court deems appropriate, and issue supplemental findings and conclusions on

the issue of whether plaintiff is entitled to a modification or termination of

alimony as a result of changed circumstances and consistent with the earlier

iteration of the alimony statute.

A-5884-17T1
39
 IV.

Although we have decided to reverse the court's August 4, 2017 order, we

address the remaining issues raised by the parties as they affect our decision and

the remanded proceedings.

With respect to defendant's third, fourth, and fifth points on appeal,

defendant contends that the trial court committed various evidentiary errors by:

1) admitting into evidence portions of the 2016 surveillance videotape without

a proper foundation and a chart prepared by plaintiff's counsel identifying by

time stamp where each snippet of the videotape could be located; 2) relying upon

Dr. Behar's opinion as to defendant's condition because it was premised entirely

on the surveillance videotapes; and 3) refusing to admit medical records

containing the various diagnoses discussed by Dr. Behar. We disagree.

A trial court's evidentiary rulings are entitled to deference and will not be

disturbed absent an abuse of discretion. Belmont Condo. Ass'n, Inc. v. Geibel,

432 N.J. Super. 52, 95-96 (App. Div. 2013). Accordingly, we will uphold the

trial court's evidentiary rulings "unless it can be shown that the trial court

palpably abused its discretion, that is, that its finding was so wide off the mark

that a manifest denial of justice resulted." Ibid. (quoting Green v. N.J. Mfrs.

A-5884-17T1
40
Ins. Co., 160 N.J. 480, 492 (1999)). Here, the trial court did not abuse its

discretion.

With respect to the surveillance tapes, before the two investigators took

the stand, plaintiff's counsel sought to expedite the trial by playing only the

particular snippets of the four hours of videotape that he wished to emphasize.

After the investigators had finished testifying, the trial court shared its thoughts

about the videotape:

So, let's talk about the videos real quick, what we're
going to do with them. At the minimum, I find that
there has been, established by the plaintiff, that the
portions played in court have been authenticated. So,
if you want to move those in we can move only what
you showed into evidence. The . . . problem, though, is
conveying that to the Appellate Division in case it goes
up there, in terms of the . . . time stamps at the bottom,
what . . . it is exactly we played.

In response, plaintiff's counsel advised the court that it had a chart setting

forth the location of each portion of the video that was played by time stamp

with an accompanying brief description. While acknowledging the practicality

of the chart, defense counsel objected to its admission, noting that he had not

had the opportunity to verify its accuracy. The court admitted the chart, over

defense counsel's objection, solely to aid appellate review and because it was

used by plaintiff's counsel simply to assist in locating those portions of the tape

A-5884-17T1
41
he wanted to show the court. The court's evidentiary ruling clearly did not abuse

its discretion and defendant has not established how she was prejudiced by the

court's consideration of the tapes and chart in any event.

We similarly reject defendant's challenge to Dr. Behar's testimony.

Notably, defendant never objected to the admissibility of Dr. Behar's opinion.

Contrary to defendant's claims on appeal, Dr. Behar did not limit the bases of

his opinion to a review of the videotape, but instead stated that he conducted "a

full review of the medical records, objective tests, an office examination of

defendant and the video surveillance of defendant." Moreover, Dr. Behar

specifically identified those portions of the videotapes upon which he relied in

rejecting Dr. Kramer's diagnosis of PPD (i.e., the swim meet, shopping in beauty

store, spraying for insects), all of which were admitted below without objection

from defendant.

Likewise, we reject defendant's challenge to the court's refusal to admit

the medical records that contained the various diagnoses discussed by Dr. Behar.

First, the defense was fully aware, prior to trial, that they would have to produce

the treating physicians as witnesses before any records and opinions would be

admissible at trial. This is particularly significant here as those records

contained complex medical diagnoses and were inadmissible hearsay. See

A-5884-17T1
42
N.J.R.E. 803(c)(6), 808. Further, Dr. Behar could not authenticate the medical

records. Finally, defendant has not established any prejudice from the exclusion

of these records, many of which counsel conceded were already in evidence.

V.

As to defendant's seventh point, defendant maintains that the trial court

erred in applying the 2014 amendments to the alimony statute because the

marriage, divorce proceedings, lifestyle determination and FJOD preceded the

September 2014 amendments, and the 2012 FJOD provided that alimony could

be reviewed under the change in circumstances standard upon the conclusion of

the Hartford litigation. As previously noted, we agree.

In September 2014, the Legislature amended the alimony and maintenance

statute, N.J.S.A. 2A:34-23, "to more clearly quantify considerations examined

when faced with a request to establish or modify alimony." Spangenberg v.

Kolakowski, 442 N.J. Super. 529, 536-37 (App. Div. 2015). In particular, the

amended statute provided that "[f]or any marriage . . . less than [twenty] years

in duration, the total duration of alimony shall not, except in exceptional

circumstances, exceed the length of the marriage." N.J.S.A. 2A:34-23(c). The

bill adopting the alimony amendments indicated that they were to take effect

immediately and further provided, in pertinent part, that they "shall not be

A-5884-17T1
43
construed . . . to modify the duration of alimony ordered" in a "final judgment

of divorce." Spangenberg, 442 N.J. at 538 (quoting L. 2014, c. 42, §2). This

language "signal[ed] the legislative recognition of the need to uphold prior

agreements executed or final orders filed before adoption of the statutory

amendments." Ibid.

In its opinion, the trial court "vacated the portion of the [FJOD] that

required plaintiff to pay defendant alimony" and stated that "[b]ecause there

continues to be no final judgment of divorce that sets a duration of alimony, and

because it is 2018, four years after the effective date of the amendment to the

alimony statute, the 2014 amendments apply to this case." As noted, however,

we conclude that the court improperly determined that defendant's conduct fell

outside of Rule 4:50-1(c) and should have evaluated the merits of plaintiff's

claim under the changed circumstances standard contemplated by the 2012

FJOD and the earlier version of the alimony statute.

VI.

Defendant also contends in her eighth point that the court erred in

emancipating Luke prior to his high school graduation and when his college

plans had not yet been set. We agree that based on the motion record, the court

should not have emancipated Luke.

A-5884-17T1
44
 When a child has reached the age of eighteen, he or she is presumed to be

emancipated, N.J.S.A. 9:17B-3, but the presumption is not conclusive.

Newburgh v. Arrigo, 88 N.J. 529, 543 (1982); Llewelyn v. Shewchuk, 440 N.J.

Super. 207, 216 (App. Div. 2015). A party seeking to have parental support

continue can overcome this statutory presumption by submitting evidence that

the child has not moved "beyond the sphere of influence and responsibility

exercised by a parent and obtain[ed] an independent status of his . . . own."

Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997) (quoting Bishop v.

Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)). This fact-sensitive

evaluation must include consideration of issues such as the "child's need,

interests, and independent resources, the family's reasonable expectations, and

the parties' financial ability, among other things." Dolce v. Dolce, 383 N.J.

Super. 11, 18 (App. Div. 2006). In particular, a child's "enrollment in a full-

time educational program has been held to require continued support." Patetta

v. Patetta, 358 N.J. Super. 90, 94 (App. Div. 2003).

In its July 18, 2018, decision, the trial court found that Luke was "eighteen

years old, has graduated from high school, and there is no evidence that he is

enrolled in college or trade school" and that since "the only evidence is that both

children have graduated from high school[,] . . . the court finds no child support

A-5884-17T1
45
should be awarded." During her trial testimony, however, defendant stated that

Luke, who had turned eighteen three and one-half months earlier, would be

graduating high school in two months, lived with her and had no plans of moving

out, had been accepted at nine colleges and received some scholarship monies,

and planned on attending, but had not yet decided what to do in part for financial

reasons. Luke did not testify.

The record reflects that while defendant never definitively stated that

Luke was going to college, she offered unrebutted testimony indicating that

Luke's goal was to attend college and that he had taken substantial steps toward

that end. Luke had submitted applications to, and been accepted by, numerous

colleges, and had been awarded scholarship monies. Given this testimony and

the fact that Luke had two months of high school remaining and was still living

in defendant's home at the time of her testimony, the trial court prematurely

declared Luke emancipated.

VII.

In support of his cross-appeal, plaintiff maintains that the court, having

vacated the FJOD, erred in refusing to recalculate child support as of 2012

utilizing the income the court imputed to plaintiff. He accordingly seeks

reimbursement for the alleged overpayments from 2012 through the July 18,

A-5884-17T1
46
2018 order. As explained in section III, we are reversing that portion of the

August 4, 2017 order granting plaintiff's motion to reopen the 2012 judgment,

and plaintiff's argument therefore lacks its foundational premise. Instead,

plaintiff must rely upon changed circumstances for any modification to his child

support obligation, an alternative form of relief sought in his July 7, 2016

motion. Such an application, however, is limited by N.J.S.A. 2A:17-56.23a

which provides that "[n]o payment or installment of an order for child support

. . . shall be retroactively modified by the court except with respect to the period

during which there is a pending application modification, but only from the date

the notice of motion was mailed either directly or through the appropriate agent."

Thus, plaintiff is precluded from any modification before July 7, 2016.

Further, as noted, the court emancipated Luke in its July 18, 2018 order, a ruling

we have also reversed. Accordingly, on remand, plaintiff may renew his

application to modify his child support obligation, effective July 7, 2016. Any

such application must also address the fact that Luke was improperly

emancipated as well as the period between September 11, 2017 and July 18,

2018 which represents the time between the September 11, 2017 consent order

emancipating Collin and the court's July 18, 2018 order. We do not address

A-5884-17T1
47
circumstances regarding Luke's emancipation subsequent to the court's ruling as

those facts are not before us.

VIII.

Concerning the parties' challenges to the court's denial of their requests

for counsel fees, we find no abuse of discretion by the trial court in reaching its

decision. The court set forth the appropriate analysis in denying the parties' fee

requests. See R. 5:3-5(c); R. 4:42-9; N.J.S.A. 2A:34-23. We will disturb a trial

judge's award of counsel fees only in the rarest of circumstances and only for a

"clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 317 (App.

Div. 2008). We discern no abuse of discretion in the court's decision. We leave

it to the court's discretion to determine if fees are recoverable based on the

remanded proceedings.

IX.

Because we are reversing the court's August 4, 2017 order and remanding

for further proceedings, we do not address specifically whether the court

correctly awarded $450 per week in limited duration alimony and the term of

that award, including its commencement date, as contended by plaintiff in points

eight, and eight, D and E. For purposes of the remanded proceedings, we have,

however, considered defendant's arguments asserted in points eight, A., 1-2, B.-

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C., and determine that except as addressed in this opinion, the court's related

factual findings contained in its July 18, 2018 written opinion are supported by

substantial credible evidence, see Cesare v. Cesare, 154 N.J. 394, 411–12

(1998), and reject any challenge to those findings as lacking sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). As noted, however,

we conclude that the court in the first instance should apply those facts to the

correct changed circumstance standard memorialized in the parties FJOD and

the applicable alimony statute.

Affirmed in part and reversed and remanded in part. We do not retain

jurisdiction.

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