                                NOT FOR PUBLICATION WITHOUT THE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-3157-15T4

A.K.,1

          Plaintiff-Respondent,

v.

D.G.,

     Defendant-Appellant.
______________________________

                    Argued January 31, 2019 – Decided March 14, 2019

                    Before Judges Simonelli, O'Connor and DeAlmeida.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Passaic County,
                    Docket No. FM-16-0820-02.

                    Michael P. De Marco argued the cause for appellant
                    (De Marco & De Marco, attorneys; Michael P. De
                    Marco, of counsel and on the brief).

                    Douglas J. Kinz argued the cause for respondent.




1
     We use initials in order to protect the privacy of the parties.
PER CURIAM

      In this post-judgment matrimonial matter, defendant D.G. appeals from

the following Family Part orders: (1) the April 2, 2016 order directing him to

pay $68,928 to plaintiff A.K. as additional child support for the years 2010,

2011, and 2012, and $3,593.75 as reimbursement for extracurricular activities;

(2) the September 25, 2015 order denying his motion for reconsideration; (3) the

February 16, 2016 order awarding plaintiff $15,000 for counsel fees; and (4) the

March 10, 2016 order entering judgment against him in the amount of

$106,133.15.2 We affirm all orders.

                                       I.

      The parties were married in August 1993, and have four daughters who

live with plaintiff in Indiana. Their Marital Settlement Agreement (MSA),

incorporated into their April 15, 2002 final judgment of divorce, set defendant's

child support obligation at $2500 per month based on his base salary of $175,000

in 2002, which was above the then maximum amount of $150,800 under the

New Jersey Child Support Guidelines (Guidelines). Plaintiff had no income

other than the $30,000 per year she received in alimony under the MSA.


2
  This amount includes $18,611.84 for a cost of living adjustment (COLA) for
the years 2010 and 2012 the court directed defendant to pay under a separate
September 25, 2015 order, from which defendant does not appeal.
                                                                         A-3157-15T4
                                       2
      The MSA provided that child support would be recalculated using the

Guidelines if defendant's income exceeded $175,000 for the prior year. In order

to recalculate this amount, the MSA required defendant to provide

documentation of his income for the prior year by August 15 of each year. If

the recalculation revealed that the Guidelines amount exceeded $2500 per

month, defendant had to pay the difference to plaintiff in a lump sum by

September 1. The MSA included an example of how child support would be

recalculated if defendant's income was $250,000.

      The child support amount did not include expenses related to the children's

extracurricular activities. Regarding this expense, the MSA provided:

                   The parties shall be responsible for the costs
            related to the extracurricular activities for the Children
            in proportion to their relative after tax income . . . from
            all sources except child support, as well as any income
            that may be imputed by the [c]ourt in accordance with
            Miller v. Miller, [160 N.J. 408 (1999)], at any particular
            time. As of the execution of this Agreement and until
            such time as child support is recalculated, the Husband
            shall pay [seventy-five percent] and the Wife shall pay
            [twenty-five percent]. This shall include, but not
            limited to, ballet lessons, swimming lessons, hobbies,
            clubs, school trips and all other expenses associated
            therewith. It is agreed that the Wife will obtain the
            Husband's consent, which shall not be unreasonably
            withheld, prior to enrolling the Children in a particular
            activity such as, but not limited, to those listed above.
            The Husband shall pay his share of the expenses, to the


                                                                          A-3157-15T4
                                        3
             Wife, within seven (7) days of being presented with a
             bill, invoice or to her proof of required payment.

      Regarding the children's school expenses, the MSA provided:

             If the parties agree that the Children should be enrolled
             in pre-school and/or private school (elementary through
             high school) the parties shall be responsible for all costs
             associated therewith, including tuition, books,
             uniforms, fees, etc., in proportion to their relative after
             tax income, from all sources except child support, as
             well as any income that may be imputed by the [c]ourt
             in accordance with Miller v. Miller. As of the
             execution of this Agreement and until such time as
             child support is recalculated, the Husband shall pay
             [seventy-five percent] and the Wife shall pay [twenty-
             five percent].

      The MSA further provided that if either party failed to cure a breach or a

default, that party would be liable for the other party's attorney's fees, "resulting

from or made necessary by the bringing of any suit or other proceeding to secure

such payment or enforce any such obligation, provided" that such suit or other

proceeding resulted in a favorable "[judgment], decree, award or order."

      In September 2011, the parties exchanged their 2010 income tax returns

and W-2 forms. These documents showed that defendant's yearly income was

approximately $500,000, triggering a recalculation of defendant's child support

obligation for 2010. The parties could not reach an agreement on the amount of

child support. As a result, plaintiff filed a motion on December 27, 2011,


                                                                             A-3157-15T4
                                         4
seeking a recalculation of defendant's child support obligation, as well as

reimbursement for the children's extracurricular activities and counsel fees and

costs.

         In opposition, defendant argued that plaintiff's request for recalculation of

child support was inconsistent with the MSA, and he should not be obligated to

pay anything additional for his daughters' extracurricular activities because he

did not consent to their enrollment in those activities.

         Judge John E. Selser held a three-day hearing on non-consecutive days

between March 2014 and October 2014. Prior thereto, the parties exchanged

discovery, including their 2011 and 2012 income tax returns and W-2 forms.

         At the hearing, plaintiff testified that she had remarried, had one son with

her current husband, and they lived together in Indiana with her four daughters

from her marriage to defendant.            Plaintiff testified as to her economic

circumstances in 2010, 2011, and 2012. She was no longer receiving alimony,

was employed as a kindergarten teacher, and her approximate income was

$35,000 in 2010, $36,000 in 2011, and $37,000 in 2012. Plaintiff also testified

as to her monthly expenses for 2010, which totaled $6102 and included costs for

shelter, transportation, and other personal items.




                                                                              A-3157-15T4
                                           5
      Plaintiff testified as to her current economic circumstances, which she

detailed in her March 10, 2014 Case Information Statement (CIS). The CIS

revealed that plaintiff was still employed as a kindergarten teacher at an annual

salary of $38,878, and her net worth had increased to $509,705. Her most

current monthly expenses of $8147 included costs for shelter, transportation,

and other personal items, with $6900 attributed solely to expenses for her four

daughters. Plaintiff explained that the difference in monthly expenses from

2010 to 2014 was due to the tuition for her daughters' private school and her

oldest daughter's auto insurance. In addition, plaintiff's day-to-day expenses

increased because her daughters were now teenagers.

      Plaintiff testified that three of her four daughters attended Catholic school.

Plaintiff discussed the matter with defendant prior to the children's enrollment,

but he did not consent. Nonetheless, plaintiff enrolled the children in Catholic

school because she believed it was the best choice for them. Likewise, she

enrolled the parties' other daughter in public school because she believed it was

the best choice for that child.

      Plaintiff also testified that during the years 2008, 2009, 2010, and 2011,

there were a number of expenses she incurred for her daughters' extracurricular

activities, including soccer, cheerleading, basketball, volleyball, Confraternity


                                                                            A-3157-15T4
                                         6
of Christian Doctrine classes for all four children, a class trip to Washington,

D.C. for their oldest daughter, and braces for another daughter. Plaintiff notified

defendant of these activities and sent him copies of the bills, requesting payment

of his seventy-five percent share. Defendant paid for some of the expenses, but

objected to paying for the traveling soccer program, the Washington, D.C. trip,

and the braces.    Consequently, plaintiff paid one-hundred percent of those

expenses, for which she sought reimbursement from defendant.

      Plaintiff also sought reimbursement for "Various Insurance Deductions."

She explained that this amount represented deductions defendant made from his

prior contributions toward extracurricular activities for the premiums he paid

for the children's health insurance. Plaintiff testified that these deductions were

improper because defendant took them after receiving notice that she had

secured other, better health insurance for the children.

      Defendant testified that he had remarried and had two daughters with his

current wife. His current wife also had one daughter from a previous marriage

who lived with them in New Jersey.

      Defendant testified that he was currently employed by Goldman Sachs in

New York City as Vice President in the internal audit program, and served in

that capacity for the past seven years. His annual base salary was approximately


                                                                           A-3157-15T4
                                        7
$225,000, and he received an average yearly bonus of $135,000 in addition to

his base salary. He also received a number of shares of stock as part of the

bonus. His approximate income was $500,000 in 2010, $440,000 in 2011, and

$320,000 in 2012.

      Defendant testified as to his current monthly expenses, which included his

child support obligation, shelter, transportation, and other personal items. His

monthly expenses in 2014 totaled $9965. To cover these costs, he and his

current wife borrowed against credit cards throughout the year and then paid the

balances on those cards when he received his bonus. Defendant also testified

that his net worth was $191,240. Factors effecting that number included the

money defendant and his current wife had borrowed for their home, an in-ground

pool, and vehicles (a 2009 BMW and a 2010 Toyota).

      In an April 2, 2015 order and written opinion, Judge Selser directed

defendant to pay plaintiff $68,928 as additional child support for the years 2010,

2011, and 2012, and $3,593.75 as reimbursement for extracurricular activities.

The judge reserved decision on the counsel fee issue and ordered each party to

submit a certification of services.

      Defendant filed a motion for reconsideration. Plaintiff filed a cross-

motion to amend the April 2, 2015 order to require defendant to pay a COLA in


                                                                          A-3157-15T4
                                        8
connection with the additional child support, as well as counsel fees and costs

incurred in connection with the motions.

      Following a hearing on September 25, 2015, Judge Selser entered an order

denying defendant's motion for reconsideration and a separate order granting

plaintiff's cross-motion to amend the April 2, 2015 order to include a COLA in

the amount of $18,611.84. In a February 16, 2016 order and written opinion,

the judge directed defendant to pay $15,000 for plaintiff's counsel fees. On

March 10, 2016, the judge entered an order for judgment against defendant in

the amount of $106,133.15, which incorporated the amounts awarded to plaintiff

in the prior orders. This appeal followed.

                                       II.

      Defendant contends that Judge Selser erred in awarding plaintiff $68,928

as additional child support for the years 2010, 2011, and 2012, and denying his

motion for reconsideration. He argues the judge did not articulate what the

reasonable needs of the children were and failed to consider the standard of

living and economic circumstances of each party as required by N.J.S.A. 2A:34-

23(a)(2).

      "Our review of a trial judge's factual findings, following a non-jury trial,

is limited."   Elrom v. Elrom, 439 N.J. Super. 424, 433 (App. Div. 2015).


                                                                          A-3157-15T4
                                        9
"Generally, 'findings by the trial court are binding on appeal when supported by

adequate, substantial, credible evidence.'" Ibid. (quoting Cesare v. Cesare, 154

N.J. 394, 411-12 (1998)). In matrimonial matters, this "[d]eference is especially

appropriate 'when the evidence is largely testimonial and involves questions of

credibility.'" Cesare, 154 N.J. at 412 (quoting In re Return of Weapons to

J.W.D., 149 N.J. 108, 117 (1997)). "Reversal is warranted only when a mistake

must have been made because the trial court's factual findings are 'so manifestly

unsupported by or inconsistent with the competent, relevant and reasonably

credible evidence as to offend the interests of justice . . . .'" Elrom, 439 N.J.

Super. at 433 (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J.

474, 484 (1974)). "Consequently, when a reviewing court concludes there is

satisfactory evidentiary support for the trial court's findings, 'its task is complete

and it should not disturb the result . . . .'" Ibid. (quoting Beck v. Beck, 86 N.J.

480, 496 (1981)). "Deference is appropriately accorded to factfinding; however,

the trial judge's legal conclusions, and the application of those conclusions to

the facts, are subject to our plenary review." Ibid. (quoting Reese v. Weis, 430

N.J. Super. 552, 568 (App. Div. 2013)). "Finally, legal conclusions are always

reviewed de novo."       Id. at 433-34 (citing Manalapan Realty, L.P. v. Twp.

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


                                                                              A-3157-15T4
                                         10
      As for the denial of a motion for reconsideration, we have determined,

                   Reconsideration itself is "a matter within the
            sound discretion of the [c]ourt, to be exercised in the
            interest of justice[.]" It is not appropriate merely
            because a litigant is dissatisfied with a decision of the
            court or wishes to reargue a motion, but "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 either did not
            consider, or failed to appreciate the significance of
            probative, competent evidence."

            [Palombi v. Palombi, 414 N.J. Super. 274, 288 (App.
            Div. 2010) (quoting D'Atria v. D'Atria, 242 N.J. Super.
            392, 401 (Ch. Div. 1990)).]

      We will not disturb a trial judge's denial of a motion for reconsideration

absent a clear abuse of discretion. Pitney Bowes Bank, Inc. v. ABC Caging

Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015).           "[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)). Applying the above standards, we discern no reason to reverse.


                                                                         A-3157-15T4
                                       11
      In his April 2, 2015 written opinion, Judge Selser noted that the parties'

combined income was above the maximum amount under the Guidelines. Thus,

he applied the Guidelines up to the maximum amount and recalculated

defendant's base amount of child support, finding defendant owed $5052 for

2010 ($421 a month), $4680 for 2011 ($390 a month), and $3804 for 2012 ($317

a month), for a total of $13,536. The judge then applied the factors in N.J.S.A.

2A:34-23(a) to supplement the base amount, finding it appropriate considering

defendant's increase in income. The judge recognized that "the needs of the

children are not frozen in time at the time of the divorce, but should reflect the

greater fortune of either or both parent subsequent to the divorce."

      Based on plaintiff's testimony and CIS, which Judge Selser found

credible, the judge determined that the needs of the children were $6900 per

month. The judge explained that:

            It is always difficult to figure out child support for a
            current year, [much] less to go back in time three to five
            years . . . . The [CISs] available to the court on behalf
            of the plaintiff were from January of 2010 and February
            2014. Obviously the years in question fall right in
            between those years. This is to say that the children's
            needs were greater than the 2010 [CIS] but something
            less than what was stated in 2014. In her calculations,
            the plaintiff expressed the belief that the needs of the
            children, after factoring out of the A B C expenses
            herself, were approximately $6,910 a month. The court
            accepts this number.

                                                                          A-3157-15T4
                                       12
                     The court has independently run figures of the
               children's needs for the years 2010, 2011, and 2012.
               Undoubtedly the expenses varied during those years,
               however, this court does believe that an average
               expense list for the children for those years would total
               $6,900 per month.

The judge found that $6900 reflected a "'typical' financially conservative mid -

west lifestyle" and the children were "not living any sort of an extravagant

lifestyle . . . ."

       Judge Selser then described the parties' finances to which they testified,

and noted the very significant disparity in their income. Plaintiff's source of

income was her teaching job, and defendant's source of income was his job as

Vice President of the internal audit program at Goldman Sachs, at which he

earned significantly more income then he did at the time of the divorce. The

judge found both parties had assets and debts that seemed "pretty commensurate

with their incomes and lifestyle[s]."

       In determining the child support amount, Judge Selser calculated the

difference between the income available to plaintiff on a monthly basis (her

salary plus child support) and the children's monthly expenses of $6900 for

2010, 2011, and 2012. The judge determined the total unsatisfied amount was

$55,392 ($18,288 for 2010; $18,516 for 2011; and $18,588 for 2012). Thus, the

judge concluded defendant's total additional child support obligation

                                                                           A-3157-15T4
                                         13
(Guidelines-based amount plus supplemental amount) was $68,928 for the years

2010, 2011 and 2012.

      The trial court must apply the Guidelines when considering an application

to establish or modify child support. R. 5:6A. However, "[i]f the combined net

income of the parents is more than $187,200 per year, the court shall apply the

guidelines up to $187,200 and supplement the guidelines-based award with a

discretionary amount based on the remaining family income (i.e., income in

excess of $187,200) and the factors specified in N.J.S.A. 2A:34-23." Pressler

& Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A, at paragraph

20(b) (2019). "The key to both the Guidelines and the statutory factors is

flexibility and the best interest of children." Pascale v. Pascale, 140 N.J. 583,

594 (1995). It is well established that "where the parties have the financial

wherewithal to provide for their children, the children are entitled to the benefit

of financial advantages available to them." Isaacson v. Isaacson, 348 N.J. Super.

560, 579 (App. Div. 2002). "Children are entitled to not only bare necessities,

but a supporting parent has the obligation to share with his children the benefit

of his financial achievement." Id. at 580.




                                                                           A-3157-15T4
                                       14
      In this regard, a judge is afforded a great deal of discretion, Caplan v.

Caplan, 182 N.J. 250, 264 (2005), but the discretion must be guided by

consideration of the factors specified in N.J.S.A. 2A:34-23(a):

            (1) Needs of the child;

            (2) Standard of living and economic circumstances of
            each parent;

            (3) All sources of income and assets of each parent;

            (4) Earning ability of each parent, including
            educational background, training, employment skills,
            work experience, custodial responsibility for children
            including the cost of providing child care and the length
            of time and cost of each parent to obtain training or
            experience for appropriate employment;

            (5) Need and capacity of the child for education,
            including higher education;

            (6) Age and health of the child and each parent;

            (7) Income, assets and earning ability of the child;

            (8) Responsibility of the parents for the court-ordered
            support of others;

            (9) Reasonable debts and liabilities of each child and
            parent; and

            (10) Any other factors the court may deem relevant.

      In the context of high-income parents whose ability to pay is not an issue,

"the dominant guideline for consideration is the reasonable needs of the

                                                                         A-3157-15T4
                                      15
children, which must be addressed in the context of the standard of living of the

parties. The needs of the children must be the centerpiece of any relevant

analysis." Isaacson, 348 N.J. Super. at 581. The consideration of children's

needs must include their age and health — with the understanding that infants'

needs are less than those of teenagers — as well as the children's assets or

income. Ibid.

      Determining a child's "needs" in a high-income earning family presents

"unique problems." Id. at 582. As we have instructed:

            First, a balance must be struck between reasonable
            needs, which reflect lifestyle opportunities, while at the
            same time precluding an inappropriate windfall to the
            child or even in some cases infringing on the legitimate
            right of either parent to determine the appropriate
            lifestyle of a child. This latter consideration involves a
            careful balancing of interests reflecting that a child's
            entitlement to share in a parent's good fortune does not
            deprive either parent of the right to participate in the
            development of an appropriate value system for a child.
            This is a critical tension that may develop between
            competing parents. Ultimately, the needs of a child in
            such circumstances also calls to the fore the best
            interests of a child.

            [Ibid. (citation omitted).]

      "Judges must be vigilant in providing for 'needs' consistent with lifestyle

without overindulgence." Id. at 583. Even with high-income parents, the court



                                                                         A-3157-15T4
                                          16
still must "determin[e] needs of a child in a sensible manner consistent with the

best interests of the child." Id. at 584.

      Plaintiff testified at length about the reasonable needs of the children,

which were also reflected in her CIS. Regarding her Schedule A (shelter)

expenses, plaintiff testified as to the cost of her home and the cost of maintaining

it on a monthly basis, and indicated the entire family unit, including her current

husband and son, shared the expenses listed. Plaintiff indicated the amount

listed on her Schedule B (transportation) expenses included only her and her

oldest daughter's vehicles. Both vehicles were owned outright, and thus, the

only recurring expenses plaintiff listed were for maintenance and fuel. Although

one of the two vehicles belonged to plaintiff, she testified that she used the

vehicle primarily for the children's benefit — to get back and forth to work as

well as to drive the children to all their extracurricular activities and doctor's

appointments. Plaintiff also indicated the amount listed on her Schedule C

(personal) expenses pertained only to her and her four daughters.

      Plaintiff testified that to calculate that exact amount for her Schedule C

expenses, she took her family's monthly expenses and recorded only five-

sevenths of the total, but recorded one-hundred percent of the costs listed for

"school lunches," "private school costs," "orthodontic," and "sports and


                                                                            A-3157-15T4
                                        17
hobbies" for the parties' daughters. Plaintiff admitted that approximately one-

half of the listed medical expenses were attributable to her treatments for breast

cancer.   Plaintiff also testified that one-fifth of the remaining expenses,

including food, household supplies, restaurants, and entertain ment, were

attributable to her. She then described in detail what each of those expenses

represented. For example, as regarding the $366 per month restaurant expenses

she listed, plaintiff testified that she and her family dined out "maybe once a

week" at "[an] Applebee's or Friday's, family dining kind of establishment."

Plaintiff also testified that she and her current husband used a Quicken computer

software program to record these expenses, and they categorically recorded

every receipt and cash withdrawal on a daily basis.

      Thus, plaintiff testified that her total expenses for her four daughters was

$6900 per month. To cover these monthly expenses, she used the $2500 in child

support, her $2500 in income, and her current husband covered the remaining

amount. Plaintiff also indicated that she and her current husband had taken from

savings to cover these expenses.

      Judge Selser found that plaintiff's testimony was "very credible and

indicated . . . that the children [were] not living any sort of an extra vagant

lifestyle in Indiana." The judge found that an average expense listed for the


                                                                          A-3157-15T4
                                       18
children for the years 2010, 2011 and 2012 would total $6900 per month. This

was not a random figure, but an amount the judge found was fair based on

plaintiff's credible testimony and CIS. Thus, contrary to defendant's assertions,

the judge sufficiently articulated what the reasonable needs of the children were.

      Defendant argues the judge erred in using the $6900 figure, and $6102

was a more accurate figure. However, as plaintiff testified, $6900 was the

approximate amount she spent per month on the parties' daughters, and the judge

found that testimony credible.

      Defendant further argues the judge ignored his testimony that plaintiff

listed $2129 in expenses on her Schedule C for prescription drugs, medical,

medical insurance, private school costs, contributions, life insurance,

savings/investment, and professional expenses that did not pertain to his

children. However, except to express his disagreement with some of plaintiff's

choices, such as sending three of their children to Catholic school, defendant did

not testify as to what should or should not have been included in plaintiff's

monthly expenses. The bulk of his testimony pertained to his income and assets.

      Nonetheless, regarding prescription drugs and medical expenses, plaintiff

testified that approximately one-half of the medical expenses were related to her

treatment for breast cancer, and Judge Selser considered that fact when arriving


                                                                          A-3157-15T4
                                       19
at his decision. In addition, plaintiff testified that under the MSA, defendant

was responsible for the children's medical insurance until she became employed,

and she could add the children to her plan if she could secure medical insurance

at a lower rate. Plaintiff indicated that her current husband's medical insurance

was better, low-cost insurance, so after they married, she added the children to

that plan.   Plaintiff also explained that she was having difficulty using

defendant's insurance in Indiana. She notified defendant, but he did not cease

insuring the children under his plan. Because of plaintiff's decision, medical

insurance was a monthly expense for her. In response to this, defendant testified

that plaintiff's insurance was not comparable to his insurance, and there were

some unique differences within the policies that still made his insurance more

advantageous.

      Judge Selser considered this monthly expense when recalculating the

amount of child support. Although defendant disagrees with the judge, the

judge's decision was based on credible evidence in the record, which defendant

cannot refute.

      Plaintiff testified that the children's private school costs were justified

because Catholic school was a better choice for three of her four daughters.

Judge Selser considered those costs as well in his recalculation of child support.


                                                                          A-3157-15T4
                                       20
Although defendant disagreed with plaintiff's decision to enroll his three

daughters in private school, he did not provide any evidence to support his

argument that the children should have attended public school. Consequently,

it cannot be said the judge abused his discretion by including this expense as

part of the children's reasonable needs.

      Plaintiff testified that the amount listed on her CIS for "contributions"

represented donations made to their church. Because the children attended

Catholic school and were raised in a Catholic household, these donations

benefitted the children, and thus, it was not improper for the judge to include

this expense as part of the children's reasonable needs.

      Regarding the cost for a life insurance premium, plaintiff testified that

although her current husband is the primary beneficiary, her children are

contingent beneficiaries and would benefit from this policy in the event of

plaintiff's untimely death because they currently reside with plaintiff and her

husband in Indiana. The same was true for the amount listed under "savings and

investment."

      Finally, plaintiff testified that her "professional expenses" represented the

amount paid to her financial advisor, who helped her and her current husband

manage their money accounts, which benefits the children directly because they


                                                                           A-3157-15T4
                                       21
depend on plaintiff to cover day-to-day expenses and will need plaintiff to help

them pay for college.

      Even if there were some incidental benefit to plaintiff from the inclusion

of the above-listed expenses, "the law is not offended if there is some incidental

benefit to the custodial parent from increased child support payments."

Isaacson, 348 N.J. Super. at 584. The law is offended, however, where there is

"overreaching in the name of benefiting a child . . . ." Id. at 585. There is no

evidence to suggest that plaintiff was overreaching in her monthly expenses. As

Judge Selser found, plaintiff's budget reflected a "'typical' financially

conservative mid-west lifestyle." Nothing listed in plaintiff's Schedule A, B, or

C expenses was extravagant.       All of plaintiff's expenses were reasonable.

Although she testified she would like to provide her children with more luxuries,

the amount the judge awarded did not provide for that. Instead, the judge

calculated the amount of child support to meet, not exceed, the needs of the

children.

      Lastly, defendant argues that Judge Selser erred by failing to consider the

standard of living and economic circumstances of each parent. The judge,

however, did consider those factors. Specifically, the judge noted the amount

of the parties' income and sources of income. He also noted that both parties


                                                                          A-3157-15T4
                                       22
"have assets and debts that seem pretty commensurate with their incomes and

lifestyles" and that "neither party is unreasonably wallowing in debt way above

their means."

       Although it is true that plaintiff's net worth is higher than defendant's, the

figures do not truly reflect the parties' economic circumstances. For example, a

substantial portion of plaintiff's current net worth is traced to assets contributed

by her current husband, such as the Ameriprise brokerage account.               Also

included in plaintiff's net worth are the children's Section 529 accounts, which

had over $90,000 at the time plaintiff completed her CIS, and which would

ultimately reduce defendant's share of the children's college expenses under the

MSA.

       In actuality, defendant's finances were in better shape than he claimed. As

reflected in his CIS, he had approximately $58,000 in cash available in his

checking and savings accounts, whereas plaintiff had $10,200 in cash available.

In addition, defendant's Goldman Sachs 401k plan was worth $212,953, whereas

all of plaintiff's retirement plans totaled approximately $110,000.

       Moreover, although plaintiff had less debt than defendant, that was

because she borrowed less than he did. Defendant spent more than plaintiff on

several Schedule C items, including food and household supplies, restaurants,


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and clothing. Defendant also lived in a larger and more expensive home, had an

in-ground pool with custom diving stone, and drove more expensive vehicles.

As Judge Selser succinctly stated, both parties "have assets and debts that seem

pretty commensurate with their incomes and lifestyles."

      In sum, Judge Selser based his award of additional child support on all the

evidence presented and clearly did not abuse his discretion in this case. His

decision was fair and amply supported by the record.

                                      III.

      Defendant argues that because he did not provide the requisite consent for

his daughters to participate in extracurricular activities, Judge Selser erred in

directing him to reimburse plaintiff for the cost of certain extracurricular

activities. Defendant also argues the judge made no finding that the withholding

of such consent was unreasonable. We disagree with these arguments.

      Plaintiff testified that at the time of the divorce, and as memorialized in

the MSA, she and defendant agreed that the children's extracurricular activities

would be a separate cost. Plaintiff was responsible for twenty-five percent of

those expenses and defendant was responsible for seventy-five percent. That

percentage was based on the parties' incomes at the time of the divorce.




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However, if the parties' incomes were to later change, the MSA provided for an

adjustment of the percentages in proportion to their after tax incomes.

      Plaintiff claimed that defendant failed to pay his share of extracurricular

expenses, and thus, requested reimbursement in the amount of $3593. Judge

Selser awarded plaintiff this amount, finding the records plaintiff kept of her

expenses were "extensive and quite accurate" and she "ke[pt] very careful track

of her expenditures."

      It is readily apparent from Judge Selser's decision that he found

defendant's withholding of consent unreasonable, and the record supports that

finding. Plaintiff testified at length as to the reasons why she enrolled her

daughters in a traveling soccer program, why she allowed her oldest daughter to

go on a class trip to Washington, D.C., and why her youngest daughter needed

braces. The parties specifically contemplated these extracurricular activities in

the MSA, and, as the judge found, they were reasonable. Defendant's objections,

given his high income, were simply not credible. Based on defendant's income,

he had the ability to pay his share of these expenses, and therefore, it was not

unreasonable for Judge Selser to award plaintiff the amount she requested.

      Lastly, in a brief one sentence, defendant argues that plaintiff included the

extracurricular activities expenses in her Schedule C expenses. However, there


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                                       25
is no documentary support for this argument. Rather, the various insurance

deductions ($1,726.90), the amount plaintiff spent on braces ($435.94), and the

amount she spent for the class trip ($478.50) were one-time only expenses, and

based on plaintiff's credible testimony, were not included in her most recent

compilation of monthly expenses.

      Regarding the travel soccer and private school expenses, which totaled

$952.41 for the years 2010 and 2011, defendant presented no evidence to suggest

that plaintiff included his portion of these expenses in her Schedule C expenses.

Plaintiff testified that she prepared a compilation of what she believed defendant

owed for his seventy-five percent share of the expenses, and in support of her

position, she presented a list of expenses and receipts. Plaintiff did not say that

these expenses were also included in her monthly budget, and again, defendant

presented no evidence to the contrary. Thus, there is no reason to disturb Judge

Selser's decision on this basis. Moreover, plaintiff only asked that defendant

reimburse her for seventy-five percent of the extracurricular expenses, whereas,

pursuant to the MSA, she was entitled to more in light of defendant's increased

income. For example, in 2010, defendant earned ninety-two percent of the total

family income, yet plaintiff only requested a contribution of seventy-five

percent.


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                                       26
      Judge Selser awarded only what plaintiff requested, nothing more, which

was supported by her testimony as well as her careful documentation. The

record supports his decision.

                                        IV.

      Defendant argues that because he did not have a greater ability to pay and

his position was not unreasonable, Judge Selser erred in awarding plaintiff

attorney's fees. We reject this argument.

      Plaintiff requested $24,535 in counsel fees. Judge Selser awarded her

$15,000, finding:

            [I]t is the opinion of this court that a fee award to
            [plaintiff's attorney] of $15,000 would be appropriate.
            It is not that plaintiff has no ability to pay her fees. She
            has some ability, however, given her income as
            opposed to the defendant's income, her income is
            certainly less than the full ability to pay fees that the
            defendant possesses.

                  The position taken by the defendant proved to be
            a position that did not allow this matter to settle. His
            position really brought this matter to the [p]lenary
            hearing. It is only fair that he absorb most of the fees.

      An award of counsel fees in matrimonial matters rests in the discretion of

the trial court. R. 4:42-9(a)(1); R. 5:3-5(c); Williams v. Williams, 59 N.J. 229,

233 (1971). "Discretion, however, means legal discretion, 'in the exercise of

which the judge must take account of the law applicable to the particular

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                                       27
circumstances of the case and be governed accordingly.'" Alves v. Rosenberg,

400 N.J. Super. 553, 562-63 (App. Div. 2008) (quoting State v. Steele, 92 N.J.

Super. 498, 507 (App. Div. 1966)).

      When reviewing an application for counsel fees, a court must "consider

the factors set forth in the court rule on counsel fees, the financial circumstances

of the parties, and the good or bad faith of either party." N.J.S.A. 2A:34-23. In

a family action, Rule 4:42-9(a)(1) authorizes the award of counsel fees and

refers to Rule 5:3-5(c), which provides that a court should consider the following

factors:

            (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.

      All applications for counsel fees in family actions must also address the

factors set forth in R.P.C. 1.5(a).          R. 4:42-9(b).     These include the

reasonableness of the fees charged given the task and the skill level of the

attorney. R.P.C. 1.5(a). "In addition, the party requesting the fee award must


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                                        28
be in financial need and the party paying the fees must have the financial ability

to pay, and if those two factors have been established, the party requesting the

fees must have acted in good faith in the litigation." J.E.V. v. K.V., 426 N.J.

Super. 475, 493 (App. Div. 2012).

      Moreover, where one party pursues a position in bad faith, the court may

award reasonable attorney's fees to the other irrespective of the parties' relative

economic health "because the purpose of the award is to protect the innocent

party from unnecessary costs and to punish the guilty party." Yueh v. Yueh,

329 N.J. Super. 447, 461 (App. Div. 2000).

      Here, contrary to defendant's argument, plaintiff's finances were not

superior to his finances. As Judge Selser found, defendant's yearly income

during the relevant time-period was substantial. Specifically, defendant had an

annual base salary of approximately $225,000 in addition to an average bonus

of $135,000. Plaintiff, on the other hand, earned approximately $37,000 a year

as a school teacher. Although defendant may have had a "fairly good amount of

debt," he still had better means to afford counsel fees than plaintiff.

      Further, we agree with Judge Selser that defendant's position was

unreasonable.    Defendant maintained throughout this matter that the MSA

limited the recalculation of child support to the maximum support award under


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the Schedule of Child Support Awards set forth in Appendix IX-F. Defendant

posited that since the MSA required the parties to apply the Guidelines in

recalculating child support, the child support obligation should be limited to the

maximum support amount prescribed for a combined net income of $187,200

per year. Thus, defendant asserted his additional child support obligation for all

three years should be only $7346.

      Rule 5:6A provides, in pertinent part:

                  The guidelines set forth in Appendix IX of these
            Rules shall be applied when an application to establish
            or modify child support is considered by the court. The
            guidelines may be modified or disregarded by the court
            only where good cause is shown. . . . In all cases, the
            determination of good cause shall be within the sound
            discretion of the court.

                   A completed child support guidelines worksheet
            in the form prescribed in Appendix IX of these Rules
            shall be filed with any order or judgment that includes
            child support that is submitted for the approval of the
            court. If a proposed child support award differs from
            the award calculated under the child support guidelines,
            the worksheet shall state the reason for the deviation
            and the amount of the award calculated under the child
            support guidelines.

      Paragraph 21 of Appendix IX-A provides that "[i]n all cases, the decision

to deviate from the guidelines shall be based on the best interests of the child.

All deviations from the guidelines-based award and the amount of the


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                                       30
guidelines-based award must be stated in writing in the support order or on the

guidelines worksheet." Paragraph 22 of Appendix IX-A requires:

            In accordance with R. 5:6A, if a child support amount
            in a stipulated or consent agreement differs from an
            award calculated using the support guidelines, the
            parties or their representatives shall state on a child
            support guidelines worksheet: (a) the amount of support
            that would have been awarded if calculated using the
            guidelines and (b) the reason that the stipulated amount
            differs from the guidelines-based award.

      Paragraph 20(b) of Appendix IX-A specifically provides for "extreme

parental income situations" such as those here:

            If the combined net income of the parents is more than
            $187,200 per year, the court shall apply the guidelines
            up to $187,200 and supplement the guidelines-based
            award with a discretionary amount based on the
            remaining family income (i.e., income in excess of
            $187,200) and the factors specified in N.J.S.A. 2A:34-
            23. Thus, the maximum guidelines award in Appendix
            IX-F represents the minimum award for families with
            net incomes of more than $187,200 per year. An award
            for a family with net income in excess of $187,200 per
            year shall not be less than the amount for a family with
            a net income of $187,200 per year. Because estimates
            on the marginal cost of children in intact families with
            net incomes of more than $187,200 per year are either
            unreliable or unavailable, the court shall not extrapolate
            the Appendix IX-F schedules (statistically or by adding
            amounts from different income ranges) beyond that
            dollar limit.




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                                       31
      The MSA does not indicate that the parties intended to restrict the

recalculation of child support to the maximum combined net income under the

Schedule of Child-Support Awards set forth in Appendix IX-F and eliminate

any discretionary-based award if their combined net income exceeded the

maximum set forth in the Schedule. Rather, the MSA indicates the parties

anticipated defendant's income would increase and unequivocally provides that

if his income was "in excess of $175,000 for the prior year, child support shall

be recalculated using the . . . Guidelines." Thus, by agreeing to recalculate

defendant's child support obligation using the Guidelines, the parties bound

themselves to using the Schedule of Child Support Awards up to the maximum

level of their combined income and then applying the factors in N.J.S.A. 2A:34-

23 to determine an additional discretionary amount if their combined net income

exceeded the maximum under the Schedule.

      Defendant's position to the contrary was clearly unreasonable. As Judge

Selser noted, it was "pointed out to [defendant] through counsel on several

occasions prior to the [p]lenary hearing that the [Guidelines] provide for a

supplement to child support when the parties combined [income] well exceeded

the maximum amount under the Guidelines." Nonetheless, defendant refused to

settle and forced the matter to proceed to a plenary hearing, which required


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                                      32
plaintiff to incur travel and legal expenses. Accordingly, we conclude that the

award of attorney's fees in this case was entirely appropriate and not an abuse

of discretion.

      Affirmed.




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