                        NOT FOR PUBLICATION WITHOUT THE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-4502-16T3

GALLOWAY TOWNSHIP,

        Plaintiff-Appellant/
        Cross-Respondent,

v.

LUCIENNE DUNCAN,

     Defendant-Respondent/
     Cross-Appellant.
______________________________

              Argued June 5, 2018 – Decided August 15, 2018

              Before Judges Fisher and Sumners.

              On appeal from the Tax Court of New Jersey,
              Docket No. 014479-2015.

              Thomas G. Smith argued the cause for
              appellant/cross-respondent (The Law Offices
              of Thomas G. Smith, PC; Thomas G. Smith, on
              the briefs).

              Todd   W.   Heck   argued  the   cause   for
              respondent/cross-appellant   (Testa,   Heck,
              Testa & White, PA, attorneys; Todd W. Heck,
              on the brief).

PER CURIAM

        Galloway Township (the Township) appeals the May 9, 2017 Tax

Court order, which held that Lucienne Duncan was entitled to a
full disabled veteran's personal residence tax exemption (disabled

veteran's tax exemption or exemption) under N.J.S.A. 54:4-3.30(a)

for 2016 and, thus, a refund for the 2016 taxes she paid, based

upon the court's prior decision granting her the same exemption

for the 2015 tax year.       Duncan cross-appeals the Tax Court's

decision1 of the same date, which denied her request for attorneys'

fees due to the Township's refusal to recognize her exemption for

2016.     For the reasons that follow, we affirm.

     This dispute emanates from the Township's unsuccessful effort

to overturn the Atlantic County Tax Board's October 2015 decision

that granted Duncan a full disabled veteran's tax exemption for

the 2015 tax year.    In a November 14, 2016 published decision, the

Tax Court entered a judgment denying the Township's appeal; holding

that Duncan – a former Air Force Major neurologist – qualified for

the exemption due to a military service-connected 100 percent

permanent disability and that the Township must refund her 2015

property tax payment.      Galloway Tp. v. Duncan, 29 N.J. Tax 520

(2016).

     On March 29, 2017, after the Township did not appeal the

judgment, Duncan filed a Rule 1:10-3 and Rule 8:7(d) motion to

enforce the judgment with the same Tax Court that rendered the


1
   The record does not include an order memorializing the Tax
Court's decision.

                                  2                          A-4502-16T3
decision.   Based upon her disabled veteran's exemption status, she

requested an order requiring the Township to refund the property

taxes she paid for 2015, 2016, and 2017.2      Prior to argument,

Duncan's claims for 2015 and 2016 became moot when the Township

refunded her 2015 property taxes and removed her from the property

tax rolls effective January 1, 2017.    In opposing Duncan's claim

for property tax exempt status for 2016, the Township argued the

Tax Court lacked jurisdiction to grant her a disabled veteran's

tax exemption because she did not appeal her 2016 property taxes

assessment and, thus, it was unaware that she sought an exemption

for 2016.   The Township further argued it was not in a position

to refund her 2016 tax payment because it had already closed its

books for that tax year.

     On May 9, 2017, after argument, the Tax Court ordered that

Duncan was entitled to have a full disabled veteran's tax exemption

for 2016, and that the Township must refund her the 2016 property

taxes she paid.      In its oral decision, the court rejected the

Township's claims.    The court found the Township was fully aware

of her disabled veteran's tax exemption request when it issued her

2016 tax bill.    The court also pointed out the disingenuousness

of the "book closing" argument given the Township's ordinance that


2
  Duncan paid her taxes with her monthly mortgage payments to her
mortgage company, which sent the payments to the Township.

                                 3                          A-4502-16T3
allowed refunds for disabled veteran's tax exemption for up to two

years prior to the date the taxpayer qualified for the exemption.

      The Tax Court also rejected Duncan's submission under Rule

8:7(d)3 that the Freeze Act, N.J.S.A. 54:51A-8, which protects a

taxpayer by "freezing" a property tax assessment for the two years

following a tax year for which there is a final judgment of the

Tax Court, applies to her situation.            The court explained that the

November 14, 2016 final judgment granted Duncan a property tax

exemption as a disabled veteran, which was not a suspension of the

property's assessment due to the property's use – the two-year

protection specifically afforded by the Freeze Act.

      The court, however, concluded that once it ruled Duncan was

entitled to the disabled veteran's tax exemption for the 2015 tax

year, she was also exempt for 2016.             The court reasoned that once

it   was   granted,   the   exemption     was    continuous;   unlike    a   tax

assessment due to a property's use that may change from year to

year,   and   there   was   no   evidence   that     her   military-connected

disability would change.         The court granted Duncan's request for

interest on the 2016 tax refund payment, but denied her request




3
  To invoke the Freeze Act after entry of a final judgment, "a
taxpayer must file a supplementary motion to the Tax Court in the
first instance, pursuant to Rule 8:7(d)."     Hackensack City v.
Bergen Cty., 405 N.J. Super. 235, 251 (App. Div. 2009).

                                      4                                 A-4502-16T3
for attorney's fees because it did not view the Township's action

denying her exemption for 2106 as a deliberate, egregious act.

      In   this   appeal,     the    Township        reiterates    the    arguments

rejected by the Tax Court concerning Duncan's right to a disabled

veteran's tax exemption for 2016.            We also find them unpersuasive.

      In our review of a Tax Court's judgment, we "recognize the

expertise of the [court] in this 'specialized and complex area.'"

Advance Hous., Inc. v. Twp. of Teaneck, 215 N.J. 549, 566 (2013)

(citation omitted).        The Tax Court's factual findings "will not

be disturbed unless they are plainly arbitrary or there is a lack

of substantial evidence to support them."                Yilmaz, Inc. v. Dir.,

Div. of Taxation, 390 N.J. Super. 435, 443 (App. Div. 2007)

(citation omitted).         Thus, we examine "whether the findings of

fact are supported by substantial credible evidence with due regard

to the Tax Court's expertise and ability to judge credibility."

Ibid. (citation omitted).           However, our review of the Tax Court's

legal conclusions is de novo.            UPSCO v. Dir., Div. of Taxation,

430 N.J. Super. 1, 8 (App. Div. 2013).

      We first address the Township's argument that the Tax Court

did not have jurisdiction to determine if Duncan was entitled to

the   disabled    veteran's    tax     exemption       after    2015.         Duncan's

application to have the Township recognize that her exemption

extended   beyond   2015     was     made    under    Rule     1:10-3    to    enforce

                                         5                                     A-4502-16T3
litigant's rights under the November 14, 2016 judgment.    The rule

authorizes such a motion, when parties "willfully fail to comply

with an order or judgment."      Loigman v. Twp. Comm. of Twp. of

Middletown in Cty. of Monmouth, 308 N.J. Super. 500, 503 (App.

Div. 1998) (citation omitted).   Prior to granting the motion, the

court must find that the defendant has willfully "failed to comply

with [an] order and that the court's assistance is necessary to

secure compliance."    State Dep't of Envtl. Prot. Bureau of Cty.

Envtl. & Waste Compliance Enf't v. Mazza and Sons, Inc., 406 N.J.

Super. 13, 29 (App. Div. 2009); Hynes v. Clarke, 297 N.J. Super.

44, 57 (App. Div. 1997).   "The scope of relief in a motion in aid

of litigants' rights is limited to remediation of the violation

of a court order."     Abbott v. Burke, 206 N.J. 332, 371 (2011).

Accordingly, the court acted within its authority to determine if

Duncan's right to the disabled veteran's tax exemption after 2015

was afforded by the November 14, 2016 judgment.

     As for the Tax Court's enforcement of the judgment, we are

satisfied with its reasoning that Duncan's disabled veteran's tax

exemption for 2015 continued into 2016 and thereafter was derived

from the judgment.    We agree with the court that the Township was

fully aware of Duncan's interest in continuing the exemption, and

that there was no evidence that she was no longer fully disabled

and entitled to the exemption.        We agree with Duncan that the

                                  6                         A-4502-16T3
Township misplaces its reliance on Cty. of Essex v. City of E.

Orange, 214 N.J. Super. 568, 576 (App. Div. 1987) and Blair Acad.

v. Blairstown, 95 N.J. Super. 583, 593 (App. Div. 1967); unlike

the   present    situation,       those   disputes      concerned    property        tax

assessment      exemptions    –    for    using    a   property    for    non-profit

activities – based on statutes that required taxpayer action from

year-to-year      to   continue     the    exemption.        There       is   no    such

legislative directive requiring an annual application for the

disabled veteran's tax exemption.                 The exemption is granted not

due to the property's use but because of the taxpayer's disability

attributed to military service.                As the court sensibly pointed

out, absent evidence to the contrary, its judgment granting Duncan

the tax exemption for 2015 should continue to successive years of

her ownership of the property.                 We therefore see no reason to

disturb this decision.

      Turning     to   Duncan's     cross-appeal        of   the   denial      of    her

attorney's fees request, she contends a fee award was appropriate

because the Township failed to comply with the sixty-day grace

period prescribed by N.J.S.A. 54:3-27.2 to refund her any excess

taxes paid.     Duncan, however, fails to recognize that under a Rule

1:10-3 motion to enforce litigant's rights, the court has the

discretion to award attorney's fees to the prevailing party.                        Wear

v. Selective Ins. Co., ___ N.J. Super. ___, ___(App. Div. 2018)

                                           7                                   A-4502-16T3
(slip op. at 23) (citation omitted).    In our review of the Tax

Court's oral decision, we glean no abuse of discretion because

there is no indication that it was "made without a rational

explanation, inexplicably departed from established policies, or

rested on an impermissible basis."   Id. at 23-24.

    Affirmed.




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