                                 NOT FOR PUBLICATION WITHOUT THE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-2806-16T2

ANTHONY BELL,

           Plaintiff-Appellant,

v.

GLADYS BELL,

     Defendant-Respondent.
__________________________

                    Argued September 12, 2018 – Decided January 18, 2019

                    Before Judges Fasciale and Gooden Brown.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Hudson County,
                    Docket No. FM-09-0286-00.

                    William Rodriguez argued the cause for appellant
                    (Rodriguez Kim Law Group, LLC, attorney; Georgeann
                    M. Belcher, Kiera E. Kenniff, and Thomas Kim, on the
                    briefs).

                    Kevin C. Orr argued the cause for respondent.

PER CURIAM
        In this post-judgment matrimonial matter, plaintiff (ex-husband) appeals

from the December 13, 2016 Family Part order denying reconsideration of a

September 16, 2016 order. The December 13, 2016 order denied reconsideration

of the effective date of emancipation of the parties' youngest child; denied

reconsideration of the enforcement of the provision of the parties' property

settlement agreement (PSA) entitling defendant (ex-wife) to a lump sum

payment of $30,000 from plaintiff's pension plan; and denied reconsideration of

the counsel fees awarded to defendant in connection with the enforcement of the

pension provision.      The December 13, 2016 order also awarded defendant

additional counsel fees for opposing plaintiff's reconsideration motion and for

her cross-motion to enforce the September 16, 2016 order. For the reasons that

follow, we reverse and remand for a plenary hearing.

        The parties married in 1981 and divorced in 2000. At the time, they had

three unemancipated children born of the marriage: L.B., 1 a girl born April 1981;

A.B., a boy born October 1984; and S.B., another girl born December 1985.

Under the parties' PSA, which was incorporated into their March 28, 2000 Dual

Judgment of Divorce, plaintiff was required to pay defendant child support in

the amount of "$327[] per week . . . which include[d] [fifty dollars] toward . . .


1
    We refer to the children by initials to protect their privacy.
                                                                          A-2806-16T2
                                           2
[c]ollege tuition." Plaintiff also agreed to "liquidate his Copeland and IRA

accounts to pay for [L.B.'s] [c]ollege tuition through May 2000[,]" and agreed

to pay defendant "$375[] at the rate [of] [fifty dollars] per month commencing

April 2000 toward an outstanding legal bill for [A.B.]"

      Under the PSA, both parties waived alimony. However, while plaintiff

waived "any and all claims" against defendant's pension, the pension provision

of the PSA specified that "[defendant] shall receive $30,000[] of [plaintiff's]

pension to effectuate a 50/50 division of both parties['] pensions." Further, the

parties agreed to attempt to "settle" any "dispute arising under [the PSA]"

between them before resorting to "the [c]ourts for any determination[,]" and

agreed to "keep the other informed of his or her place of residence and telephone

number" and "promptly notify the other of any change."         Additionally, the

parties represented that they had "independent counsel[,]" that they entered into

the PSA "without any coercion, duress[,] or undue influence," and that they

"read and understood all of the provisions of [the PSA] and deem[ed them] fair

and reasonable[.]"

      Thereafter, the parties engaged in extensive post-judgment motion

practice, primarily involving the children. Specifically, an August 18, 2000

order directed plaintiff to comply with the provisions of the PSA, requiring him


                                                                         A-2806-16T2
                                       3
to liquidate his accounts to pay L.B.'s college tuition and make monthly

payments towards A.B.'s legal bill. A December 1, 2000 order issued a warrant

for plaintiff's arrest for non-compliance with the August 18, 2000 order. After

plaintiff surrendered himself, a January 5, 2001 order credited his $500 payment

to his arrears, which included a $10,760 outstanding balance for L.B.'s college

tuition. When L.B. did not return to college after the Spring 2000 semester, on

plaintiff's motion, a June 14, 2004 order emancipated L.B., retroactive to April

1, 2002. The order also reduced plaintiff's weekly child support obligation for

the two younger children to $227 "until May 1, 2007," or until a "credit of

[$7638]" negotiated by the parties in connection with L.B.'s emancipation was

liquidated, at which point the child support obligation would increase to $282

per week. Additionally, the June 14, 2004 order directed the arrears of $5500,

"represent[ing] [L.B.'s] past due college tuition" to be paid to Fairleigh

Dickinson University (FDU), at a rate of $115.48 per week until "paid in full."2

Thereafter, in 2005, the trial court granted plaintiff's motion to emancipate A.B.3




2
  In a June 10, 2004 order, the trial court also substituted plaintiff for L.B. in
FDU's lawsuit filed in connection with the past due balance, and entered a $6843
judgment against him.
3
    This order is not included in the record.
                                                                           A-2806-16T2
                                          4
      The parties' youngest child, S.B., enrolled at New Jersey City University

in 2003, and graduated on September 8, 2008. She married later that month, on

September 23, 2008. On May 24, 2016, plaintiff moved to emancipate S.B.,

then thirty years old, retroactive to her college graduation on September 8, 2008.

Plaintiff requested that any child support and college contribution overpayments

be applied towards the $30,000 lump sum pension payout required under the

PSA, and sought attorney's fees. In response, except for agreeing that S.B.

should be emancipated, defendant opposed the motion and cross-moved for

enforcement of the pension provision of the PSA and attorney's fees and costs.

In her supporting certification, defendant asserted she became permanently

disabled in 2006, had a fire in her home in 2007, and stopped receiving child

support payments around that time "until 2014," when she received "a lump sum

payment" of approximately $26,000.          While she did not oppose S.B.'s

emancipation, she objected to plaintiff's request for recoupment of "any alleged

overpayment based upon the unique circumstances of th[e] case," including the

fact that prior to his May 2016 motion, "[plaintiff] took no action to stop child

support payments."

      According to defendant, she had "no viable means of earning additional

money for retirement[,]" as she was then fifty-seven years old and had "planned


                                                                          A-2806-16T2
                                        5
on receiving $30,000 from [plaintiff's] . . . pension in a lump sum." However,

when she contacted his employer, she was informed that a "lump sum" payment

could not be provided. As a result, she asked the court to "modify" the PSA "to

provide that [plaintiff] be compelled to pay [her] . . . the sum of $30,000 now."

To support her request, defendant attached a letter dated January 11, 2001, from

the Division of Pensions and Benefits (Division) responding to her inquiry

regarding plaintiff's pension account with the Police and Firemen's Retirement

System (PFRS).

      In the letter, the Division informed defendant that the PSA's language

regarding equitable distribution of plaintiff's pension was "not acceptable for

implementation" because, at that time, plaintiff was "not retired and not

receiving monthly retirement allowances from the Division," and neither

plaintiff nor defendant "as the alternate payee" was "entitled to . . . lump sum

payments of retirement benefits[.]" The letter stated further that upon receipt of

"a revised or amended court order" indicating, for example, that the Division

was "to withhold either a specific dollar amount or a specific percentage of

[plaintiff's] gross monthly retirement allowance," the Division "[could] and

[would] implement such a revised or amended court order as soon as practical




                                                                          A-2806-16T2
                                        6
after [plaintiff] retire[d]" and began receiving his monthly retirement

allowances.4

      In response, plaintiff explained that the $26,000 lump sum child support

payment defendant received in 2014 resulted from a mix-up in connection with

his wage garnishment and was through "no fault of [his] own." He certified

further that he "immediately took action in order to emancipate" S.B. after her

college graduation by "reach[ing] out to [d]efendant on numerous occasions in

order to resolve the issue without [c]ourt intervention as [he] did not have an

address to serve [d]efendant with any motion papers at the time." However,

defendant "refused to discuss th[e] issue with [him,]" and "[f]or the past eight

(8) years, [d]efendant . . . opportunely avoided th[e] issue." Plaintiff continued

that "[i]t was not until [2016] that [he] finally discovered where [defendant was]

currently living, which enabled [him] to file this motion and properly serve her

with same." Plaintiff also objected to modifying the PSA to compel him to make

a $30,000 lump sum payment now, asserting that despite receiving the letter

from his employer in 2001, defendant waited fifteen years before taking any

action to amend the PSA. Additionally, plaintiff averred defendant had her own



4
  Attached to the letter was a sample sheet containing "the type of language"
appearing in "court orders" implemented by the Division.
                                                                          A-2806-16T2
                                        7
State pension from her former employer, to which he "waived any and all

claims" under the PSA.

        In a July 15, 2016 order, the court ordered the parties to exchange updated

Case Information Statements (CIS) by August 15, 2016, and return for a hearing

on the respective motions. On September 16, 2016, without oral argument, the

court granted defendant's motion in part, emancipating S.B. as of the filing date

of plaintiff's motion, and awarded him credit for any payments made after that

date.    In the accompanying statement of reasons, the court explained that

emancipation was "effective May 24, 2016," because the "child has reached the

age of majority, and [d]efendant does not oppose emancipation[.]" The court

also granted defendant's motion to enforce litigant's rights, ordering plaintiff to

pay defendant $30,000 from his pension in accordance with the PSA, and

awarding defendant $1925 in counsel fees. In support, the court indicated that

plaintiff admitted in his moving papers "that he ha[d] not paid the $30,000 []"

and was thus "in violation of the [PSA]." As to the counsel fee award, after

considering the nine factors enunciated in Rule 5:3-5(c), including a finding that

"[p]laintiff ha[d] not acted in good faith by violating various court orders and

the [PSA,]" and that defendant prevailed on her cross-motion, the court

determined that the fees were "reasonable."


                                                                           A-2806-16T2
                                         8
        Plaintiff moved for reconsideration of the provisions of the September 16,

2016 order pertaining to the effective date of S.B.'s emancipation, enforcement

of the PSA's pension provision, and award of counsel fees. In his supporting

certification, plaintiff reiterated that the emancipation date should have been

effective in September 2008, when S.B. graduated from college and married.

He submitted documents from Probation showing child support payments to

defendant totaling approximately $35,336 from September 2008 to July 31,

2016.

        Further, plaintiff certified that based on the January 11, 2001 letter from

the Division, of which he was unaware until defendant's cross-motion, the

pension provision in the PSA "cannot be enforced" because "[t]he plan provider

does not allow a lump sum distribution." Thus, "[he] could not have violated

the [PSA] if [he was] unaware that [his employer] could not divide the pension

as stated within the [PSA]." He claimed that had he known, he "would have

worked with [d]efendant to modify [the PSA,]" but he "should not be penalized

for something that was not [his] fault." Plaintiff continued that although he

retired on July 1, 2016, he had "not received [his] pension yet."5 Thus, defendant

would still be able to receive her share of his pension through monthly


5
    Subsequently, plaintiff began receiving his pension in November 2016.
                                                                           A-2806-16T2
                                         9
distributions, as he did "not have the means to pay a $30,000[] lump sum to the

[d]efendant." Defendant opposed the motion and cross-moved for enforcement

of the September 16, 2016 order, as well as attorney's fees and costs.

      On December 2, 2016, during oral argument on the motions, the court

stated that it "generally . . . emancipate[d] children . . . retroactive to the date of

filing[.]" While the court was "sensitive to what [plaintiff] may have gone

through in the last . . . eight years," the court was "not convinced that [it] should

go back to 2008" and did not "believe [it] acted incorrectly in [its] last order."

Skeptical of plaintiff's claim regarding his inability to locate defendant to serve

her with motion papers earlier, the court elicited sworn testimony from the

parties on the record. Defendant testified that from 2008 to 2016, she moved

"[t]wice." She resided in the marital residence in Jersey City until a fire in

2008.6 Between 2008 and 2010, she moved to Irvington and then Union, before

returning to a different address in Jersey City, where she remained since 2010.

Plaintiff countered that although they had children in common, the "children

would not tell [him] where their mother lived."




6
  Defendant's testimony conflicted with her earlier certification in which she
averred that the fire occurred in 2007.
                                                                               A-2806-16T2
                                         10
      On December 13, 2016, the court issued a written decision denying

plaintiff's motion for reconsideration "without prejudice," determining that

plaintiff failed to "meet his burden pursuant to [Rule] 4:49-2." However, the

court granted defendant's cross-motion to enforce the September 16, 2016 order,

directing plaintiff to pay a $30,000 lump sum payment and $1925 in counsel

fees. Further, the court granted defendant's cross-motion for additional counsel

fees in the amount of $3385, for having to file a second motion to enforce the

PSA, and to respond to plaintiff's reconsideration motion.

      In its findings of fact, initially, the court found that "[p]laintiff admitted

he was aware [S.B.] could be emancipated as soon as 2008, when she graduated

college and married." Further, "[defendant] has lived in Jersey City for the past

six years" and "only moved twice in the eight years that [p]laintiff could not

allegedly locate her to serve the motion papers." Additionally, according to the

court, "[p]laintiff has not complied with the [PSA], whereby the parties agreed

that [d]efendant would receive $30,000 of [p]laintiff's pension" and "did not

propose an alternative to the lump sum payment . . . other than applying a credit

of overpayment of child support."

      In denying plaintiff's request to reconsider the effective date of S.B.'s

emancipation, the court "view[ed] [p]laintiff as having less credibility than


                                                                            A-2806-16T2
                                       11
[d]efendant," and found it "incredible that [p]laintiff could not locate

[d]efendant for eight years[,]" despite "maintain[ing] communication with the

children, who in turn communicated with [d]efendant." The court also noted

that "[p]laintiff allowed his attorney to respond to the [c]ourt's questions and

testified sparingly." Thus, the court concluded plaintiff's delay in filing for

emancipation was "beyond unreasonable given his options to pursue substituted

service of the motion or conduct[] a diligent inquiry search," pursuant to Rule

4:4-4(b). The court rejected plaintiff's "equitable argument" that "[d]efendant

was not entitled to collect child support for [S.B.] because [she] already went

through the process of emancipation twice before with the two other childre n."

Applying the doctrine of laches, the court determined "[p]laintiff failed to

exercise his legal right for eight years" and defendant "would now be harmed if

the [c]ourt were inclined to credit eight years of overpayment against her."

      The court also rejected plaintiff's request to reconsider enforcement of the

pension provision of the PSA. The court dismissed plaintiff's contention, as

constituting grounds for reconsideration, the fact that the "lump sum

distribution" could not be implemented and that defendant was aware of this fact

since 2001 but plaintiff was unaware until defendant's first cross-motion.

According to the court, "[n]either party . . . sought to modify the [PSA] language


                                                                          A-2806-16T2
                                       12
or file[d] a Qualified Domestic Relations Order to address [the] issue[,]" and

plaintiff "did not propose" an alternate solution, other than offsetting the pension

payout with the child support overpayment.          Likewise, the court rejected

plaintiff's request to reconsider the $1925 counsel fee award to defendant

because the court upheld the enforcement action.         Finally, after reviewing

defense counsel's certification of services in connection with the current

motions, the court concluded the requested fee of $3385 was "reasonable in light

of the nine factors pursuant to [Rule] 5:3-5(c)."         In particular, the court

determined plaintiff acted in bad faith by "unreasonably delay[ing] . . . filing the

motion[,]" while defendant brought her cross-motion "in good faith." The court

entered a memorializing order and this appeal followed.

      On appeal, plaintiff argues the court should have terminated his child

support obligation retroactive to September 8, 2008, when S.B. graduated

college, and he "should be given a credit for any child support payments

subsequent to that date." Plaintiff further argues the court erroneously applied

"the doctrine of laches" rather than "applying an equitable offset between the

child support overpayments and amount due pursuant to the pension provision

of the parties' PSA."     Plaintiff explains the doctrine of laches "does not

accomplish mutual fairness and equity between the parties considering the


                                                                            A-2806-16T2
                                        13
totality of [the] circumstances," and the court "should have ordered a plenary

hearing" rather than the "limited fact finding" conducted without "the benefit of

discovery" before finding the doctrine applied. We agree and remand for further

findings of the equitable factors relevant to plaintiff's request for retroactive

emancipation of S.B. to 2008 and recoupment of child support overpayments.

      "Motions for reconsideration are governed by Rule 4:49-2, which provides

that the decision to grant or deny a motion for reconsideration rests within the

sound discretion of the trial court." Pitney Bowes Bank, Inc. v. ABC Caging

Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015).        "Reconsideration

cannot be used to expand the record and reargue a motion" but "is only to point

out 'the matters or controlling decisions which counsel believes the court has

overlooked or as to which it has erred.'" Capital Fin. Co. of Del. Valley Inc. v.

Asterbadi, 398 N.J. Super. 299, 310 (App. Div. 2008) (quoting R. 4:49-2).

      Reconsideration "is not appropriate merely because a litigant is

dissatisfied with a decision of the court or wishes to reargue a motion[.]"

Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010).           Rather,

reconsideration

            should be utilized only for those cases which fall into
            that narrow corridor in which either 1) the [c]ourt has
            expressed its decision based upon a palpably incorrect
            or irrational basis, or 2) it is obvious that the [c]ourt

                                                                         A-2806-16T2
                                      14
            either did not consider, or failed to appreciate the
            significance of probative, competent evidence.

            [Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392,
            401 (Ch. Div. 1990)).]

      "In short, a motion for reconsideration provides the court, and not the

litigant, with an opportunity to take a second bite at the apple to correct errors

inherent in a prior ruling." Medina v. Pitta, 442 N.J. Super. 1, 18 (App. Div.

2015).   Thus, we will not disturb a trial judge's denial of a motion for

reconsideration absent a clear abuse of discretion. Pitney Bowes Bank, 440 N.J.

Super. at 382. An "abuse of discretion only arises on demonstration of 'manifest

error or injustice,'" Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v.

Torres, 183 N.J. 554, 572 (2005)), and occurs when the trial judge's decision is

"made without a rational explanation, inexplicably departed from established

policies, or rested on an impermissible basis[.]" Milne v. Goldenberg, 428 N.J.

Super. 184, 197 (App. Div. 2012) (quoting Flagg v. Essex Cty. Prosecutor, 171

N.J. 561, 571 (2002)).

      Here, we are satisfied the trial court mistakenly exercised its discretion in

denying plaintiff's motion for reconsideration "without prejudice." We conclude

the court failed to consider or appreciate the significance of probative,

competent evidence, and should have conducted a plenary hearing to resolve


                                                                           A-2806-16T2
                                       15
genuine issues of material fact and give due consideration to the equitable

factors pertinent to the retroactive emancipation of S.B and recoupment of child

support overpayments. "[A]n equitable adjustment of the rights of the parties

may vary from one case to another[,]" and must be considered in light of the

facts in an individual case. Vasquez v. Glassboro Serv. Ass'n Inc., 83 N.J. 86,

108 (1980).     "[T]rial judges cannot resolve material factual disputes upon

conflicting affidavits and certifications." Harrington v. Harrington, 281 N.J.

Super. 39, 47 (App. Div. 1995). "[I]f the proper disposition of a matrimonial

dispute requires a plenary hearing, the dispute is by definition not subject to

disposition on the papers, with or without oral argument." Fusco v. Fusco, 186

N.J. Super. 321, 329 (App. Div. 1982).

      This case presents the equitable principles implicated in an obligor's

application to emancipate a child and terminate child support retroactively, prior

to the filing date of the motion, and recoup child support overpayments made

from the date of emancipation.       The parties agreed that S.B. should be

emancipated.    The dispute arose over whether plaintiff was entitled to an

effective emancipation date of September 2008, when S.B. graduated from

college and married, or May 2016, when he filed his motion seeking

emancipation.


                                                                          A-2806-16T2
                                       16
      New Jersey's anti-retroactivity statute generally prohibits retroactive

modification of an existing child support order to a date prior to the filing date

of a motion for such relief, or forty-five days earlier upon written notice.

N.J.S.A. 2A:17-56.23a.     However, we have previously held that the anti-

retroactivity statute does not prevent a retroactive termination of child support

when a child is retroactively emancipated. See Bowens v. Bowens, 286 N.J.

Super. 70, 73 (App. Div. 1995) (permitting retroactive emancipation and

termination of child support where an obligor sought a retroactive cancellation

of unpaid arrearages following the date of emancipation); Mahoney v. Pennell,

285 N.J. Super. 638, 643 (App. Div. 1995) (permitting the emancipation and

termination of child support for two children two years apart in age, with each

emancipation effective retroactive to each child's eighteenth birthday and

holding "[w]here there is no longer a duty of support by virtue of a judicial

declaration of emancipation, no child support can become due").

      Here, while not expressly acknowledging its authority to retroactively

emancipate a child and retroactively terminate child support, the court applied

the doctrine of laches to bar plaintiff's request for relief. Undoubtedly, a court

of equity may appropriately consider whether the doctrine of laches applies to

prohibit a claim for retroactive emancipation and recoupment of child support.


                                                                          A-2806-16T2
                                       17
"Laches is an equitable doctrine which penalizes knowing inaction by a party

with a legal right from enforcing that right after passage of such a period of time

that prejudice has resulted to the other parent[] so that it would be inequitable

to enforce the right." L.V. v. R.S., 347 N.J. Super. 33, 39 (App. Div. 2002).

"The key ingredients" to the applicability of laches "are knowledge and delay

by one party," coupled with a detrimental "change of position by the other

[party]." Ibid. Thus, factors considered in determining whether to apply laches

include "'[t]he length of delay, reasons for delay, and changing conditions of

either or both parties during the delay.'" Ibid. (quoting Lavin v. Bd. of Educ. of

City of Hackensack, 90 N.J. 145, 152 (1982)). "While laches does not arise

from delay alone," inequity "more often than not, will turn on whether a party

has been misled to his harm by the delay." Ibid. (quoting Lavin, 90 N.J. at 153).

      However, "unlike the periods prescribed by the statute of limitations," the

constraints of laches "are not fixed" but are flexible enough to accomplish

mutual fairness and equity in a given case. Lavin, 90 N.J. at 151. Factors to

consider to accomplish "mutual fairness and equity" when a party seeks

modification of a previously paid child support obligation prior to the motion

filing date were thoroughly discussed in Harrington v. Harrington, 446 N.J.

Super. 399, 411 (Ch. Div. 2016). There, the court identified a comprehensive


                                                                           A-2806-16T2
                                       18
list of considerations relevant to a court's analysis at a plenary hearing of "the

comparative equities of whether to retroactively modify child support." Id. at

411-12.

      Those considerations include the length of time and reasons for the

obligor's delay in filing the motion; whether "the non-custodial parent

continue[d] to pay the same level of child support to the obligee" even after he

could have filed the motion; "any fraud or misrepresentation" by the custodial

parent that caused the obligor's delay in filing the motion; whether the "custodial

parent failed to communicate facts that would have led to emancipation" at an

earlier date and whether the non-custodial parent could "have nonetheless

otherwise easily obtained such information with a reasonable degree of parental

diligence and inquiry"; whether the "proposed retroactive modification of child

support" would be "unduly cumbersome and complicated" to accurately

calculate; whether the non-custodial parent seeks "only a credit," rather than "an

actual return of child support already paid to, and used by, the custodial parent

toward the financial expenses of the child living in the custodial parent's home";

and the potential of causing "an inequitable financial hardship" if the "custodial

parent who previously received [the] funds in good faith" were required to repay

the funds. Id. at 407-09.


                                                                           A-2806-16T2
                                       19
      Here, the court's ability to consider these factors was constrained by the

fact that the court did not conduct a plenary hearing. While the court considered

plaintiff's eight-year delay in filing the motion, and rejected his claim that the

delay was due to his inability to locate defendant and serve her with the motion

papers, there was no consideration by the court of defendant's obligation under

the PSA to keep plaintiff informed of her place of residence. Further, it is

difficult to assess on appeal any financial hardship defendant would suffer if

ordered to reimburse plaintiff because the court only conclusively stated

defendant would suffer hardship without further explanation. See Ricci v. Ricci,

448 N.J. Super. 546, 574-75 (App. Div. 2017) ("Rule 1:7-4(a) requires a judge,

'by an opinion or memorandum decision, either written or oral, [to] find the facts

and state [all] conclusions of law . . . on every motion decided by a written order

that is appealable as of right,'" to avoid "'a disservice to the litigants, the

attorneys and the appellate court.'" (first quoting Fodero v. Fodero, 355 N.J.

Super. 168, 170 (App. Div. 2002) (second and third alterations in original); and

then quoting Curtis v. Finneran, 83 N.J. 563, 569-70 (1980))).

      Notably, if defendant stopped receiving child support payments around

2006 or 2007, and did not receive additional payments until 2014 when she

received a $26,000 lump sum payment, reimbursing plaintiff would not require


                                                                           A-2806-16T2
                                       20
her returning money she received eight years prior and would undermine any

financial hardship claim or detrimental shift in position. Moreover, if defendant

received a lump sum child support payment in 2014 when her two older children

were emancipated in 2004 and 2005, and the youngest married in 2008, the court

may consider in assessing the comparative equities whether defendant received

a benefit to which she was not entitled. See Loro v. Del Colliano, 354 N.J.

Super. 212, 225-26 (App. Div. 2002) ("[A] custodial parent cannot[,] through

the guise of the incidental benefits of child support[,] gain a benefit beyond that

which is merely incidental to a benefit being conferred on the child.").

      Plaintiff also argues that the court "erred in enforcing the pension

provision of the parties' PSA" because "the provision is objectively impossible

to fulfill." In light of our determination to remand for a plenary hearing to

address plaintiff's request for retroactive emancipation of S.B. and recoupment

of approximately $35,336 in child support overpayments, which he proposes to

use as an equitable offset to the $30,000 pension payout, we need not address

this argument at this time.

      However, for the sake of completeness, we do note that on a

reconsideration motion, "'if a litigant wishes to bring new or additional

information to the [c]ourt's attention which it could not have provided on the


                                                                           A-2806-16T2
                                       21
first application, the [c]ourt should, in the interest of justice (and in the exercise

of sound discretion), consider the evidence.'" Cummings v. Bahr, 295 N.J.

Super. 374, 384 (App. Div. 1996) (quoting D'Atria, 242 N.J. Super. at 401).

Here, in his certification in support of his motion for reconsideration, plaintiff

asserted that he had been unaware of the January 11, 2001 letter from the

Division indicating that the pension provision in the PSA could not be

implemented as written. However, the court failed to consider that evidence.

On the remand, if necessary, we direct the court to be guided by the following

principles in considering plaintiff's defense of impossibility.

      In interpreting matrimonial agreements, courts apply equitable principles

to ensure the agreement is fair and just, but apply contract principles to ascertain

an agreement's meaning. See Pacifico v. Pacifico, 190 N.J. 258, 265-66 (2007).

Supervening events that make performance of a contract impractical may excuse

performance. M.J. Paquet, Inc. v. N.J. Dep't of Transp., 171 N.J. 378, 389-90

(2002). We have previously stated that:

                   A successful defense of impossibility (or
             impracticability) of performance excuses a party from
             having to perform its contract obligations, where
             performance has become literally impossible, or at least
             inordinately more difficult, because of the occurrence
             of a supervening event that was not within the original
             contemplation of the contracting parties.


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                                         22
            [JB Pool Mgmt., LLC v. Four Seasons at Smithville
            Homeowners Ass'n Inc., 431 N.J. Super. 233, 246 (App.
            Div. 2013).]

      Plaintiff also challenges the award of counsel fees in both the September

16 and the December 13, 2016 orders. Because the awards were primarily based

on the court's finding of bad faith on the part of plaintiff, and defendant

prevailing on her cross-motions, we vacate the awards pending resolution of the

issues on remand. Accordingly, we reverse and remand the matter to the Family

Part for a plenary hearing with discovery at the court's discretion. In remanding,

we make clear that nothing within this opinion forecasts any views on the merits

of these applications nor on the question of which party may be entitled to

prevail after a full and complete consideration on the merits. We also point out,

however, that denying plaintiff's reconsideration motion without prejudice, as

the court did here, is inconsistent with compelling him to comply with the

September 16, 2016 order.

      Reversed and remanded. We do not retain jurisdiction.




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