STEPHANIE MESSNER v. MIKLOS HAJDU-NEMETH (FD-18-0340-01, 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NOT FOR PUBLICATION WITHOUT THE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-0756-20

STEPHANIE MESSNER,

Plaintiff-Appellant/
Cross-Respondent,

v.

MIKLOS HAJDU-NEMETH,

Defendant-Respondent/
Cross-Appellant.
_________________________

Submitted February 14, 2022 – Decided March 17, 2022

Before Judges Vernoia and Firko.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Somerset County,
Docket No. FD-18-0340-01.

Jared A. Geist, attorney for appellant/cross-respondent.

George G. Gussis, attorney for respondent/cross-
appellant.

PER CURIAM
 In this appeal and cross-appeal, plaintiff Stephanie J. Messner, the mother

of two daughters born in September 2000 and November 2004, appeals from

paragraphs six and eleven of an October 7, 2020 non-dissolution Family Part

order entered by Judge Haekyoung Suh. Judge Suh denied plaintiff's motion to

vacate an April 12, 2019 order entered by a previous judge granting, in part,

defendant/father Miklos J. Hajdu-Nemeth's motion in aid of litigant's rights

seeking to enforce a July 25, 2017 judgment. Defendant cross-appeals from

Judge Suh's denial of his cross-motion seeking to impute income to plaintiff for

purposes of re-calculation of her child support obligation and denial of his

request for counsel fees.

I.

The parties are familiar with the procedural history and facts of this case,

and therefore, they will not be repeated in detail here. 1 We briefly summarize

the facts pertinent to this appeal from the record. The parties cohabitated from

1999 until 2005. Their first-born daughter is now emancipated; the younger

daughter is almost seventeen-and-a-half years old. During their relationship,

1
The chronology is set forth in this court's unpublished opinion entered on
February 20, 2019, in which we affirmed the July 25, 2017 judgment. See
Messner v. Hajdu-Nemeth, No. A-5607-16 (Feb. 20, 2019). We incorporate, by
reference, the facts stated in our prior opinion.
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plaintiff became a registered nurse but did not disclose that fact to defendant

until two years later. Defendant claims he left plaintiff and the children but

allowed them to reside in his home with expenses paid by him. Plaintiff filed a

palimony complaint, which was resolved, in part, by way of a consent order

dated October 20, 2008. Plaintiff moved with the parties' two daughters from

Somerset to Union County after becoming involved in another relationship. She

filed a motion to change venue from Somerset County to Union County even

though defendant continued to reside in Somerset County.

Defendant then filed a cross-motion seeking to be named parent of

primary residence (PPR). After a plenary hearing, a previous judge granted

defendant's cross-motion to become PPR and designated plaintiff as the parent

of alternate residence (PAR) in the July 25, 2017 judgment. The judgment also

provided in pertinent part, a parenting time schedule; appointed attorney Amy

Shimalla as the parent coordinator (PC); terminated defendant's child support

obligation effective August 17, 2016; and ordered plaintiff to pay $79.00 per

week in child support, as calculated by the child support guidelines, through the

Somerset County probation department.

Thereafter, plaintiff claimed she had a conflict of interest with PC

Shimalla, resulting in an order being entered by Judge Bradford M. Bury on

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February 5, 2019, appointing Laurie Poppe as the successor PC in the event the

parties could not agree upon a new PC. Other relief not germane to these appeals

was also awarded.

On April 12 and 18, 2019, Judge Bury entered orders addressing the

remaining relief sought by plaintiff and, in pertinent part:

(1) denied plaintiff's request to vacate the cost-of-living
(COLA) increase imposed after one year rather than
two years;

(2) denied plaintiff's request for a COLA increase credit
to be paid by defendant;

(3) denied plaintiff's request to decrease child support;

(4) denied plaintiff's request for make-up parenting
time;

(5) granted defendant's request to hold plaintiff in
violation of litigant's rights for failure to pay parochial
school tuition as ordered in the July 25, 2017 judgment;

(6) ordered plaintiff to file a completed matrimonial
case information statement (CIS) with required
financial attachments; and

(7) denied defendant's request for counsel fees.

On September 12, 2019, Judge Kimarie Rahill entered an order emancipating

the older daughter and modifying plaintiff's child support obligation for the

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younger daughter to $82.00 per week, plus arrearages of $35.00 per week, for a

total weekly support obligation of $117.00, effective September 13, 2019.

Sometime in 2020,2 plaintiff filed a motion to vacate paragraphs 20 and

22 of the April 12, 2019 order claiming Judge Bury erred in finding defendant

overpaid child support in the amount of $1,204.17, when in fact, she claimed he

was in arrears $4,490.88 as of January 2017. As to paragraph 22, plaintiff

argued she was mandated to pay $8,680.25 for parochial school tuition for the

older daughter without explanation, representing her 25% share. Defendant

agreed to pay 75% of the parochial school tuition. Plaintiff contended defendant

and his spouse decided to enroll the daughters in parochial school without her

consent and that she erroneously was ordered to pay 50% of the parochial school

costs.

Defendant opposed plaintiff's motion and asserted she received copies of

tuition payments evidencing the $8,680.25 amount was based on plaintiff's 25%

share. In addition, defendant denied enrolling the children in parochial school

unilaterally and claimed it was plaintiff who "committed them to parochial

schools." Defendant contended he paid a total of $34,721.00 for the children's

parochial school tuition over the course of two academic years. He also argued

2
The record does not reflect the date plaintiff's motion was filed.
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plaintiff's motion was time-barred under Rule 4:50-1 and should be treated as a

motion for reconsideration. 3

Defendant filed a notice of cross-motion seeking to hold plaintiff in

violation of litigant's rights for her failure to comply with the July 25, 2017

judgment and the April 12, 2019 order for not providing proof of life insurance; 4

failing to pay her 25% share of parochial school tuition; continuing to discuss

the litigation and disparaging him to the children; failing to submit a complete

3
Rule 4:49-2 provides for motions to alter or amend a judgment or order and
states:

Except as otherwise provided by R[ule] 1:13-1
(clerical errors) a motion for rehearing or
reconsideration seeking to alter or amend a judgment or
order shall be served not later than [twenty] days after
service of judgment or order upon all parties by the
party obtaining it. The motion shall state with
specificity the basis on which it is made, including a
statement of the matters or controlling decisions which
counsel believes the court has overlooked or as to
which it has erred, and shall have annexed thereto a
copy of the judgment or order sought to be reconsidered
and a copy of the court's corresponding written opinion,
if any.
4
Paragraph ten of the July 25, 2017 judgment directed both parties to maintain
life insurance policies in the amount of $100,000.00 naming the daughters as
equal beneficiaries and the other party as trustee. The record shows defendant
complied, but plaintiff did not.
A-0756-20
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CIS; requiring plaintiff to bring her child support arrearages current; and for

counsel fees and costs.

On July 23, 2020, Judge Suh conducted oral argument on the motions and

reserved decision. In her thirty-page written decision, Judge Suh denied

plaintiff's motion to vacate the April 12, 2019 order, finding Judge Bury did not

err in adding $1,204.17 to plaintiff's child support arrearages instead of directly

reimbursing defendant. Judge Suh also found plaintiff "has furnished no

evidence to demonstrate that in January 2019 defendant had $4,490.88 in

arrears" and failed to demonstrate "fraud on defendant's part." Additionally,

Judge Suh found plaintiff did not meet her burden under Rule 4:50-1 to vacate

her parochial school tuition contribution as provided in the July 25, 2017

judgment, which was agreed to by consent of the parties.

As to defendant's cross-motion, Judge Suh found "[i]t is undisputed that

plaintiff has failed to provide proof of her life insurance policy to defendant"

and "[t]hree years had passed" since she was ordered to do so. Judge Suh

ordered plaintiff to obtain the requisite life insurance policy within thirty days

otherwise "economic sanctions" would be imposed "unless she can prove she is

not eligible." Plaintiff was also deemed in violation of litigant's rights for failing

to pay defendant 25% of their daughters' parochial school tuition.

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 The judge denied defendant's request to suspend parenting time, noting

the older daughter is now "twenty years old" and "the court's custody and

parenting time decision does not apply to her." As to the younger daughter,

Judge Suh found defendant did not demonstrate a substantial change in

circumstances warranting suspension of parenting time "simply because

plaintiff refused to utilize the [PC]."

On the issue of child support, the judge noted three years had passed since

the last calculation and there were changed circumstances—namely, the older

daughter was over nineteen years old, not attending high school or a post-

secondary education institution full-time, and not physically or mentally

disabled. Therefore, the older daughter was no longer entitled to child support

under N.J.S.A. 2A:17-56.67(a).5 Utilizing the child support guidelines for the

5
N.J.S.A. 2A:17-56.67 provides:

a. Unless otherwise provided in a court order,
judgment, or court-approved preexisting agreement, the
obligation to pay current child support or provide
medical support, or both for a child shall terminate by
operation of law without order by the court on the date
that a child marries, dies, or enters the military service.
In addition, a child support obligation shall terminate
by operation of law without order by the court when a
child reaches [nineteen] years of age unless:

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 (1) another age for the termination of the
obligation to pay child support, which shall not
extend beyond the date the child reaches [twenty-
three] years of age, is specified in a court order
or judgment;

(2) the child suffers from a severe mental or
physical incapacity that causes the child to be
financially dependent on a parent, in
consideration of the factors set forth in N.J.S.A.
2A:34-23, and the continuation of the obligation
to pay support for that child is specified in a court
order or judgment;

(3) a written request seeking the continuation of
child support services is submitted to the court by
a custodial parent prior to the child reaching the
age of [nineteen] in accordance with subsection
b. of this section and such request is approved by
the court; or

(4) the child receiving support is in an out-of-
home placement through the Division of Child
Protection and Permanency in the Department of
Children and Families.

b. (1) In response to a notice of proposed termination
of child support issued in accordance with subsection
d. of this section, a custodial parent may submit a
written request, on a form and within timeframes
promulgated by the Administrative Office of the
Courts, with supporting documentation to the court,
including a projected future date when support will
terminate, seeking the continuation of child support
services beyond the date the child reaches [nineteen]
years of age in the following circumstances:

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younger daughter, plaintiff's reported 2019 annual income of $50,883.00, and

defendant's Social Security Disability income of $2,300.00 monthly plus his

business income, adjusted under Appendix IX-B, the judge calculated the new

child support obligation to be $95.00 per week. The judge denied defendant's

request to impute income to plaintiff.

On the issue of counsel fees and costs, the judge denied defendant's

application based on "plaintiff's inability to pay and her current unemployment."

A memorializing order was entered.

Plaintiff raises the following issues on appeal:

POINT I:

THE UNSIGNED APPLICATION OF MICHAEL
BOWDEN ON BEHALF OF [DEFENDANT] WAS

(a) the child is still enrolled in high school or
other secondary educational program;

(b) the child is a student in a post-secondary
educational program and is enrolled for the
number of hours or courses the school considers
to be full-time attendance during some part of the
academic year; or

(c) the child has a physical or mental disability,
as determined by a federal or State government
agency, that existed prior to the child reaching
the age of [nineteen] and requires continued child
support.
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IMPROPER AND SHOULD NOT HAVE BEEN
ALLOWED.

POINT II:

[DEFENDANT] NEVER MET THE BURDEN TO
SHOW A CHANGE IN CIRCUMSTANCES.

POINT III:

THERE SHOULD HAVE BEEN A PLENARY
HEARING BUT THERE WAS NOT.

POINT IV:

THE COURT IMPROPERLY APPLIED A COLA
INCREASE IN VIOLATION OF NEW JERSEY
COURT RULE 5:3.

POINT V:

THE CHANGE OF VENUE WAS NOT ADDRESSED.

POINT VI:

THE ISSUE OF THE [PC] WAS NOT PROPERLY
ADDRESSED.

POINT VII:

THE ORDER SHOULD HAVE BEEN VACATED BY
COURT RULE 4:50 BUT WAS NOT.

POINT VIII:

CONSTITUTIONAL VIOLATIONS (Not addressed
below).

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 POINT IX:

VIOLATION OF PRIOR COURT ORDERS.

POINT X:

[THE PRIOR JUDGE] DELEGATES
ADJUDICATION TASK TO UNQUALIFIED
PERSON SERVING IN THE CAPACITY AS A [PC]
TO ENFORCE THE COURT ORDERS INSTEAD OF
HIM AS A JUDGE.

Defendant raises the following issues in his cross-appeal:

POINT I:

IT WAS AN ERROR OF THE COURT NOT TO
IMPUTE INCOME OF $80,210[.00] TO
[PLAINTIFF].

POINT II:

IT WAS ERROR OF THE COURT TO DENY
[DEFENDANT]'S COUNSEL FEE REQUEST AFTER
FINDING THAT FACTORS [THREE], [FOUR],
[SIX], [SEVEN], AND [EIGHT] FAVORED
[DEFENDANT]'S APPLICATION FOR COUNSEL
FEES.

Having carefully reviewed the record, we affirm primarily for the reasons

expressed in the thorough opinion of Judge Suh issued with the order under

review. R. 2:11(e)(1)(E). We add the following remarks.

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 II.

A. Plaintiff's Appeal

From the onset, we note plaintiff challenges orders dating back to 2008

and every judicial action taken since that time. To reiterate, we affirmed the

July 25, 2017 judgment, and plaintiff never appealed Judge Bury's orders. Even

giving plaintiff the most indulgent presumption, Points I, II, IV, V, V I, VII, and

X raised in her brief are time-barred pursuant to Rule 2:4-1(a)6 because the forty-

five-day time limit to file an appeal as to these issues has long expired. Rule

2:4-3(e) permits tolling of the forty-five-day limit if a "timely" motion for

reconsideration as filed with the Family Part. The record shows no such motion

was filed in the matter under review. Therefore, we are constrained to dismiss

plaintiff's untimely appeal as it pertains to Points I, II, IV, V, V I, VII, and X

because we lack jurisdiction. See Ricci v. Ricci, 448 N.J. Super. 546, 565 (App.

Div. 2017).

As to the merits of plaintiff's other points, our review of a Family Part

judge's fact finding is limited. N.J. Div. of Youth & Fam. Servs. v. I.H.C., 415

6
Rule 2:4-1(a) addresses Time: From Judgments, Orders, Decision, Actions
and From Rules. "Except as set forth in subparagraphs (1) and (2), appeals from
final judgments of courts, final agreements or orders of judges setting as
statutory agents and final judgments of the Division of Workers' Compensation
shall be filed within [forty-five] days of their entry." Ibid.
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N.J. Super. 551, 577-78 (App. Div. 2010) (citing Cesare v. Cesare, 154 N.J. 394,

412-13 (1998)). "The general rule is that findings by the trial court are binding

on appeal when supported by adequate, substantial, credible evidence.

Deference is especially appropriate 'when the evidence is largely testimonial and

involves questions of credibility.'" A.J. v. R.J., 461 N.J. Super. 173, 180 (App.

Div. 2019) (quoting Cesare, 154 N.J. at 411-12).

"We do 'not disturb the "factual findings and legal conclusions of the trial

judge unless . . . 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."'" Gnall v. Gnall, 222 N.J. 414, 428 (2015)

(alteration in original) (quoting Cesare, 154 N.J. at 412). However, we review

legal determinations de novo. See Slawinski v. Nicholas, 448 N.J. Super. 25,

32 (App. Div. 2016) (citing Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995)).

"In custody cases, it is well settled that the court's primary consideration

is the best interests of the children." Hand v. Hand, 391 N.J. Super. 102, 105

(App. Div. 2007) (citing Kinsella v. Kinsella, 150 N.J. 276, 317 (1997)); see

also Bisbing v. Bisbing, 230 N.J. 309, 322 (2017). ("A custody arrangement

adopted by the trial court, whether based on the parties' agreement or imposed

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by the court, is subject to modification based on a showing of changed

circumstances, with the court determining custody in accordance with the best

interests standard of N.J.S.A. 9:2-4." (citing Beck v. Beck, 86 N.J. 480-496 n.8

(1981))). "The court must focus on the 'safety, happiness, physical, mental and

moral welfare' of the children." Hand, 391 N.J. Super. at 105 (quoting Fantony

v. Fantony, 21 N.J. 525, 536 (1956)).

N.J.S.A. 9:2-4(d) provides courts must order custody arrangements in

accordance with the parties' agreement unless it is not in the best interests of the

child. "Parties cannot by agreement relieve the court of its obligation to

safeguard the best interests of the child." P.T. v. M.S., 325 N.J. Super. 193, 215

(App. Div. 1999) (citing In re Baby M., 109 N.J. 396, 418 (1988)). "While

custody agreements should be taken into account by the court, a trial court must

determine whether the agreement is in the best interests of the children." Ibid.

(citation omitted) (citing Wist v. Wist, 101 N.J. 509, 512-13 (1986)).

It is also well-settled that a party seeking modification of an existing

custody arrangement must demonstrate a change in circumstances. See R.K. v.

F.K., 437 N.J. Super. 58, 62 (App. Div. 2014). To determine whether there are

changed circumstances, the court must consider the circumstances that existed

when the original custody order was entered. Sheehan v. Sheehan, 51 N.J.

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Super. 276, 287-88 (App. Div. 1958). After considering those facts, the court

"may ascertain what motivated the original judgment and determine whether

there has been any change in circumstances." Id. at 288.

Judge Suh adroitly addressed custody and parenting time issues on the

merits that were untimely raised by plaintiff under Rule 4:50-1.7 We see no

basis to disturb her well-reasoned analysis. The judge also thoroughly addressed

child support and parochial school expenses. The record shows the Somerset

County probation department conducted an audit of the parties' child support

7
Rule 4:50-1 provides for relief from judgment or order and sets forth the
grounds of the motion as follows:

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: (a) mistake, inadvertence, surprise,
or excusable neglect; (b) newly discovered evidence
which would probably alter the judgment or order and
which by due diligence could not have been discovered
in time to move for a new trial under R[ule] 4:49; (c)
fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct of an
adverse party; (d) the judgment or order is void; (e) the
judgment or order has been satisfied, released or
discharged, or a prior judgment or order upon which it
is based has been reversed or otherwise vacated, or it is
no longer equitable that the judgment or order should
have prospective application; or (f) any other reason
justifying relief from the operation of the judgment or
order.
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account and determined the calculations were proper; and that no fraud was

committed by defendant. Judge Suh's decision is based upon substantial credible

evidence in the record.

We also reject plaintiff's argument that a plenary hearing was required

because there were no material factual disputes. See Conforti v. Guliadis, 128

N.J. 318, 322 (1992); see also J.G. v. J.H., 457 N.J. Super. 365, 372 (App. Div.

2019) ("A thorough plenary hearing is necessary in contested custody matters

where the parents make materially conflicting misrepresentations of fact .").

Here, plaintiff failed to meet her burden to alter the terms of the residential

custody and parenting time previously ordered. Moreover, plaintiff did not

demonstrate a material change in circumstances that would justify such

alteration. Hand, 391 N.J. Super. at 105 (citing Borys v. Borys, 76 N.J. 103,

115-16 (1978)). Absent such a demonstration, Judge Suh did not abuse her

discretion by not conducting a plenary hearing. And, there were no genuine or

substantial issues raised relative to the other issues under review requiring a

plenary hearing.

B. Defendant's Cross-Appeal

We also reject defendant's claim that Judge Suh erred in denying his

request to impute income to plaintiff. Defendant contends plaintiff is a

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registered nurse and received a two-year "RN degree despite her knowledge that

to earn a decent salary she will require a four-year degree." According to

defendant, plaintiff should have been imputed income at $80,210.00 annually

"to incentivize her to obtain full-time consistent employment."

The standard for modifying support post-judgment under Lepis v. Lepis,

83 N.J. 139 (1980), is "changed circumstances." See generally Donnelly v.

Donnelly, 405 N.J. Super. 117 (App. Div. 2009). The judge has the discretion

to impute income to a parent found to be unemployed or underemployed and

may utilize New Jersey Department of Labor statistics to establish an

appropriate level of child support. See Child Support Guidelines, Pressler &

Verniero, Current N.J. Court Rules, Appendix 1X-A to R. 5:6A (2022); see also

Bencivenga v. Bencivenga, 254 N.J. Super. 328, 331-332 (App. Div. 1992)

(allowing the court to impute income to a noncustodial mother of two children

who remarried and had two more children to meet her financial obligations to

her first two children).

Based upon our careful review of the record, we discern no abuse o f

discretion in Judge Suh utilizing plaintiff's reported 2019 annual income of

$50,883.00 "as the most accurate and least speculative depiction of her gross

income." Defendant did not establish his burden to show plaintiff was

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intentionally unemployed or underemployed, and therefore, there was no abuse

of discretion in utilizing plaintiff's 2019 income and not an imputed income for

her.

Finally, we also disagree with defendant that he should have been awarded

counsel fees and costs. In her decision, Judge Suh considered the nine

mandatory factors set forth in Rule 5:3-5(c),8 relevant case law, and analyzed

whether plaintiff embarked upon "bad faith conduct." See Borzillo v. Borzillo,

259 N.J. Super. 286, 292-93 (Ch. Div. 1992). The judge also analyzed the

factors set forth in Rule 4:42-9(b).9 Although the judge determined that "a

8

(1) the 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.
9
Rule 4:42-9(b) requires the moving party to submit an affidavit of services
addressing factors enumerated under RPC l.5(a). The court must consider:

(1) the time and labor required, the novelty and
difficulty of the questions involved, and the skill

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majority of factors weigh in favor of defendant's application for fees, plaintiff's

inability to pay and current unemployment militate against an award of fees."

Fee determinations by trial courts should "be disturbed only on the rarest

occasions, and then only because of a clear abuse of discretion." Rendine v.

Pantzer, 141 N.J. 292, 317 (1995); see also Packard-Bamberger & Co. v. Collier,

167 N.J. 427, 443-47 (2001) (citing the "deferential standard of review"

mandated by Rendine). Judge Suh did not abuse her discretion in denying

defendant's application for counsel fees and costs.

We conclude the remaining arguments raised by the parties—to the extent

we have not addressed them—lack sufficient merit to warrant any further

discussion in a written opinion. R. 2:11-3(e)(1)(E).

requisite to perform the legal services properly; (2) the
likelihood, if apparent to the client, that the acceptance
of the particular employment will preclude other
employment by the lawyer; (3) the fee customarily
charged in the locality for similar legal services; (4) the
amount involved and the result obtained; (5) the time
limitations imposed by the client or by the
circumstances; (6) the nature and length of the
professional relationship with the client; (7) the
experience, reputation and ability of the lawyer or
lawyers performing the services; and (8) whether the
fee is fixed or contingent.
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 Affirmed in part and dismissed in part as to plaintiff's appeal; affirmed as

to defendant's cross-appeal.

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