MICHON CHAMBON v. ROBERT CHAMBON (FM-18-0170-09, SOMERSET COUNTY AND STATEWIDE) ( 2022 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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-0354-20
    MICHON CHAMBON,
    Plaintiff-Respondent,
    v.
    ROBERT CHAMBON,
    Defendant-Appellant.
    Argued February 3, 2022 – Decided February 17, 2022
    Before Judges Haas and Mawla.
    On appeal from the Superior Court of New Jersey,
    Chancery Division, Family Part, Somerset County,
    Docket No. FM-18-0170-09.
    Lisa C. Krenkel argued the cause for appellant (Krenkel
    & Krenkel, LLC, attorneys; Lisa C. Krenkel, on the
    briefs).
    Steven J. Kossup argued the cause for respondent.
    PER CURIAM
    Defendant Robert Chambon appeals from four post-judgment orders: a
    March 27, 2020 order holding him in violation of litigant's rights; a July 17,
    2020 order denying reconsideration of the March order; a September 11, 2020
    order; and an amended order dated September 14, 2020, also denying
    reconsideration and relief from the March order. We affirm in part and remand
    in part for the reasons expressed in this opinion.
    Defendant and plaintiff Michon Chambon were married for twenty years.
    When they divorced on August 7, 2009, their three children were ages nineteen,
    sixteen, and eleven. The judgment of divorce (JOD) incorporated a marital
    settlement agreement (MSA) executed a month earlier. The MSA contained the
    following provisions relevant to this appeal:
    14. [Plaintiff] may remain in the former marital
    home for a period of two years from the date of this
    [a]greement. For a period of one year from the date of
    this [a]greement, while [plaintiff] lives in the home,
    [defendant] shall pay the mortgage, utilities, real estate
    taxes, gas, electric, telephone, and all maintenance and
    repairs. Thereafter, for a period of one year, while
    [plaintiff] continues to live in the former marital home,
    [defendant] will be responsible for all shelter expenses
    with the exception of [fifty percent] of the utilities,
    internet, television and telephone bills, which shall be
    [plaintiff's] responsibility; however, [defendant] will
    advance [plaintiff's fifty percent] share of these
    expenses, which shall be credited back to [defendant]
    from his final [l]ump [s]um payments, as set forth
    below. Further, for the two-year period from the date
    of this [a]greement, [defendant] shall continue to give
    [plaintiff] the use of the company car she presently
    drives. [Defendant] shall be responsible for all
    A-0354-20
    2
    payments on the car, the car insurance, all repair and
    maintenance expenses. . . .
    15. Except as specifically set forth in this
    [a]greement, neither party will pay alimony or other
    form of spousal support to, or on behalf of, the other.
    Specifically, [plaintiff] waives alimony or other
    spousal support from [defendant]. The consideration
    for this waiver is a portion of the lump sum payment
    [defendant] will make to [plaintiff], as well as
    [defendant's] agreement to pay health insurance
    premiums for [plaintiff] until she finds full-time
    employment, or two years, whichever occurs first, and
    his agreement that [plaintiff] can remain in the marital
    home for up to two years after the date of this
    [a]greement, with [defendant] paying the shelter
    expenses that are set forth below under the "Equitable
    Distribution" provisions of this [a]greement. . . .
    ....
    22. Personal Property. The parties are confident
    that they will be able to determine and arrange for the
    distribution of personal property, including furniture
    and furnishings, which they will do to their mutual
    satisfaction. If they are unable to agree, they will bring
    any remaining disputes to mediation prior to resorting
    to court action.
    23. Cars. The parties' cars are owned by
    [defendant's] business. Nevertheless, [plaintiff] will
    continue to have the use of the Chrysler Aspen until she
    vacates the former marital home, or for two years,
    whichever occurs first, at which point [plaintiff] shall
    return the car to [defendant]. The parties will, at that
    time, obtain a Kelley Blue Book private party sale
    value, and [defendant] will pay one-half of that value
    to [plaintiff].
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    3
    ....
    25. Lump Sum Payment. [Defendant] will pay
    [plaintiff] lump sum payments [totaling] $600,000. . . .
    These payments shall not be taxable to [plaintiff], or
    deductible for [defendant]. These lump sum payments
    are in consideration of equitable distribution set forth,
    as well as [plaintiff's] waiver of any alimony or other
    form of spousal support. Payment of this [l]ump [s]um
    shall be as follows: $20,000 on the signing of this
    [a]greement; $300,000 when [plaintiff] vacates the
    marital home, and the balance of $280,000 shall be paid
    in annual installments of $56,000 for five years
    thereafter, each installment to be paid on the
    anniversary of the date [plaintiff] vacated the home.
    From the final installment, [defendant] shall deduct any
    monies due him for [plaintiff's fifty percent] of the
    utility, internet, television and phone expenses due him
    for the period when [plaintiff] continues to live in the
    former marital home.
    ....
    27. [Defendant] will maintain life insurance on
    his life, in trust, in the amount of $110,000 for the
    unemancipated children, with [plaintiff] as trustee.
    [Defendant], in addition to this insurance, will sign a
    promissory note and mortgage, which shall be recorded
    as a lien against the marital home, and, to the extent
    there is insufficient equity in the marital home for this
    purpose, he shall give [plaintiff] a lien against other
    properties he owns, in an amount sufficient to secure
    his lump sum payments due to [plaintiff] under the
    terms of this [a]greement. The note and mortgage shall
    be subordinate only to the primary mortgage that
    [defendant] will need to refinance the home to remove
    [plaintiff's] name from the existing mortgages.
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    ....
    37. Prior to bringing an issue to the [c]ourt, other
    than in emergencies, the parties must first make a good
    faith attempt to amicably resolve their dispute,
    including submitting to mediation. They must attempt
    to mediate any dispute that arises between them
    concerning this [a]greement and any other matter
    related to their divorce prior to seeking court action.
    This provision shall not serve as a waiver of any rights
    that either may have for remedies in [c]ourt, but serves
    rather as a good faith effort to avoid litigation and
    acrimony.
    The MSA contained no college provision. However, the parties had
    custodial accounts for college, which are relevant to this appeal.
    On February 25, 2020, plaintiff filed a motion to enforce litigant's rights ,
    claiming defendant violated paragraphs twenty-two, twenty-three, twenty-five,
    twenty-seven, and thirty-seven of the MSA. She certified she moved out of the
    marital residence around November 4, 2011, but defendant had only paid her
    approximately $150,500 between May 7, 2011 and April 22, 2015. Plaintiff
    certified "[d]efendant may be entitled to some credit against this figure in accord
    with [p]aragraph [fourteen] of the [MSA], but he has . . . not provided this
    information." She sought a judgment for the lump sum amount due under
    paragraph twenty-five of $461,500 plus $233,990.55 in interest. The interest on
    the lump sum was calculated by a forensic economist, whose report was attached
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    to plaintiff's certification and stated: "We were . . . advised that in accordance
    with the New Jersey [p]ost [j]udgment [i]nterest calculations of outstanding
    payment, a rate of 7.5% should be used."
    Plaintiff also sought a judgment of $11,410 for the distribution of
    furniture, comprised of $7,000 plus interest of $4,410 pursuant to paragraph
    twenty-two of the MSA. She certified defendant agreed to pay her the $7,000
    in exchange for keeping the dining room furniture. She attached a valuation for
    the Chrysler showing a value of $16,311.82 and requested a judgment for
    $13,443.29, representing $8,155.91 for the vehicle and $5,287.38 in interest,
    pursuant to paragraph twenty-three of the MSA. 1
    Plaintiff's motion requested the court compel defendant to sign a
    promissory note and mortgage to be recorded as a lien against the marital home
    as required by paragraph twenty-seven of the MSA. She also requested the court
    compel him to identify properties he owned that could be used to satisfy his
    financial obligations under the MSA.
    1
    The expert's report did not include a calculation for the interest on the furniture
    and car, and the record does not indicate how the calculations were made.
    However, the calculations are irrelevant because defendant contested these
    requests and the judgments rendered regarding them for different reasons.
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    Plaintiff certified that beginning in October 2018, she sent defendant
    multiple communications requesting the parties mediate their dispute as required
    by the MSA, and attached an October 22, 2018 email requesting mediation.
    Additionally, on January 8, 2020, her attorney sent defendant a letter via regular
    and certified mail seeking mediation; the regular mail was not returned and the
    certified mailing was returned unclaimed.
    Defendant never responded to the motion and the motion judge entered
    the March 27 order finding him in violation of litigant's rights, and granted
    plaintiff the judgments sought for the furniture, automobile, and the lump sum
    payment. The judge also granted plaintiff's request for the promissory note, and
    mortgage, and other relief not relevant to this appeal.
    The judge found as follows: "Defendant has not replied to the present
    motion and has not provided any legitimate excuse for his non-compliance with
    the parties' MSA. Eleven years have passed since the entry of the parties' JOD."
    On June 9, 2020, defendant filed a motion for reconsideration of the
    March order and asked the court to order the parties to mediation. Regarding
    his failure to oppose the enforcement motion, defendant certified as follows:
    I know the papers show that I was served with the
    motion at work, but I did not receive them there. I have
    laid off so many people due to the [c]oronavirus and
    they are not too happy about it.
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    The motion papers apparently came to my house as well
    and the kids put . . . them to the side.
    Defendant certified plaintiff owed him half the utilities, electric, water,
    sewer, cable, and phone expenses incurred while she lived in the marital home
    pursuant to paragraphs fourteen and twenty-five of the MSA. His certification
    did not include the total sum of money owed; he claimed he was gathering the
    records and would present them to the court. Defendant argued it was unfair to
    compel him to pay plaintiff for the car because he paid it off and continued to
    insure it while plaintiff used it, and plaintiff had gifted the vehicle to their
    daughter. He argued he could give the car to plaintiff rather than pay her for it.
    Defendant stated he let plaintiff take all the furniture she wanted and should not
    have to pay her for the items she did not want to take. He claimed he tried to
    refinance his residence to pay plaintiff, but the judgments entered in the March
    order prevented him from doing so.
    Defendant also claimed plaintiff withdrew money from the children's
    college accounts, which required him to pay for the children's college without
    contribution from plaintiff. He also alleged he supported the children while they
    lived with him and paid their car insurance, medical insurance, and education
    A-0354-20
    8
    needs. He stated: "We always knew that I owed [plaintiff] money but I was
    paying everything so we would deduct it."
    Plaintiff opposed defendant's motion and denied any agreement to offset
    the lump sum payment with any college or child related expenses. She admitted
    withdrawing funds from their eldest son's account, but claimed it was at the son's
    request and she gave him the funds. She denied receiving any furniture.
    At oral argument, defendant's counsel asserted defendant did not contest
    plaintiff's enforcement motion because he believed the courts were closed due
    to the COVID-19 pandemic, which counsel acknowledged "was completely
    wrong and mistaken." Counsel argued that the parties should attend mediation,
    but plaintiff's attorney rejected it arguing it would be "a waste of time."
    Plaintiff's counsel argued defendant did not articulate a reason to reconsider the
    March order under Rule 4:49-2 or provide exceptional circumstances for relief
    under [Rule 4:50-1]. The judge agreed and stated: "I do not find that any of the
    Rule 4:50-1 grounds apply here. It's simply enforcement of a judgment . . . [and]
    the arguments that were made for . . . why it would be unfair were already raised
    . . . ."
    The judge issued the July 17 order denying the motion.       In written
    findings, he stated:       "There was no reason for defendant to believe that a
    A-0354-20
    9
    judgment would not be entered against him because of the coronavirus
    pandemic. COVID-19 was not an excuse to ignore plaintiff's filings." The judge
    found defendant was not entitled to reconsideration because he "waited over
    seventy days and until a judgment had been filed against him to file a motion
    for reconsideration . . . [and had] not provided any legitimate excuse for his
    failure to respond to the motion." The judge rejected defendant's request for
    credits against the judgment because he submitted "absolutely no documentation
    to support his claim . . . ." The judge also concluded mediation would not "be
    productive[] and would likely be a waste of the parties' time and money." 2
    In August 2020, defendant filed another motion challenging the March
    and July orders pursuant to Rules 4:49-2 and 4:50-1. He attached a statement
    from the son's college account, which listed plaintiff as the custodian, showing
    a withdrawal of $41,785.50 in December 2015. Defendant sought a credit for
    these funds. Defendant's certification also sought credits for other expenses he
    claimed he paid for the children.
    Defendant's certification claimed he paid over $224,000 between
    September 2009 and August 2015 toward his lump sum obligation under the
    2
    The judge was referencing the fact plaintiff's counsel rejected the offer of
    mediation during oral argument.
    A-0354-20
    10
    MSA. However, the certification attached no objective evidence to support the
    sum and was largely comprised of a self-created spreadsheet. His certification
    also attached a printout from PSE&G for March 2009 through January 2013,
    showing electricity payments totaling $62,336.60. He argued he should receive
    a credit for $30,0003 pursuant to the MSA's terms and the other sums he claimed
    were paid to plaintiff and for the children's expenses.
    Following oral argument, the motion judge entered the September 11,
    2020 order granting defendant a credit for one-half the amount withdrawn from
    the son's account against the interest owed on the lump sum payment. In the
    judge's written findings, he reasoned plaintiff owed half the funds because the
    account belonged to the parties, the funds were intended to pay college expenses,
    and plaintiff admitted she withdrew the funds.            The judge further found
    "[d]efendant has not shown that [p]laintiff has received a windfall or took the
    money to offset the amount that defendant owed to her. Plaintiff . . . did not
    personally benefit from the withdrawal, and instead withdrew the funds pursuant
    to an agreement between herself and the parties' adult son."
    3
    Defendant did not explain how he derived this figure. Regardless, the exhibit
    from PSE&G showed a total of $62,367.36, which appeared to be the tally of all
    payments ever made on the account because the actual total of payments made
    during the March 2009 and January 2013 period was $23,417.03.
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    11
    The judge denied the reconsideration motion reiterating defendant was out
    of time to challenge the March order and did not establish grounds for relief
    under the legal standard for reconsideration.     He denied the request for
    remaining credits and alleged additional payments, noting the evidence was
    insufficient for him to render a decision. On September 14, 2020, the judge
    entered an amended order reflecting the credit for the funds withdrawn from the
    son's college account and concluded defendant owed plaintiff interest on the
    judgment in the amount of $213,037.80.
    Defendant raises the following points on appeal:
    I.  DEFENDANT DID NOT HAVE PROPER
    NOTICE OR ADEQUATE OPPORTUNITY TO
    RESPOND TO THE MOTION RESULTING IN THE
    MARCH 27, 2020 ORDER.
    II.  THE DEADLINE FOR DEFENDANT TO FILE
    A MOTION FOR RECONSIDERATION OF THE
    MARCH 27, 2020 ORDER SHOULD HAVE BEEN
    TOLLED BY THE SUPREME COURT OMNIBUS
    ORDERS OR ALTERNATIVELY, THE MARCH 27,
    2020 ORDER SHOULD BE SET ASIDE PURSUANT
    TO [RULE] 4:50-1 AND [RULE] 4:49-2.
    A.    Interpretation of Supreme Court Omnibus
    Order and Filing Deadline Extensions.
    B.   Standard    of Review     of Enforcement
    Orders.
    A-0354-20
    12
    C.    The [T]rial Court erred in denying
    Defendant’s Motion to Reconsider under Rule
    4:49-2.
    D.   The Trial Court erred in denying
    Defendant’s Motion to Vacate under Rule 4:50-
    1.
    III. THE TRIAL COURT SHOULD HAVE
    SCHEDULED A PLENARY HEARING TO
    DETERMINE QUESTIONS OF CREDIBILITY IN
    CONJUNCTION WITH THE PARTIES' MSA.
    IV. THE   TRIAL   COURT    COMMITTED
    REVERSIBLE ERROR IN FAILING TO ABIDE
    UNAMBIGUOUS TERMS WITHIN THE PARTIES'
    MSA.
    V.  POST-JUDGMENT INTEREST SHOULD NOT
    HAVE BEEN APPLIED AGAINST EQUITABLE
    DISTRIBUTION PAYMENTS BUT IN THE
    ALTERNATIVE, THE LEVEL OF INTEREST SET
    BY THE COURT WAS INEQUITABLE AND
    CONTRARY TO [RULE] 4:42-11.
    VI. THE TRIAL COURT ERRED IN REFUSING
    TO ENFORCE THE MEDIATION PROVISION OF
    THE PARTIES' MSA.
    A.    The Trial Court should have held a Plenary
    Hearing to Determine Genuine Issues of Material
    Fact as to Payments and Credits.
    I.
    A motion for reconsideration is "primarily an opportunity to seek to
    convince the court that either 1) it has expressed its decision based upon a
    A-0354-20
    13
    palpably incorrect or irrational basis, or 2) it is obvious that the court either did
    not consider, or failed to appreciate the significance of probative, competent
    evidence." Kornbleuth v. Westover, 
    241 N.J. 289
    , 301 (2020) (quoting Guido
    v. Duane Morris LLP, 
    202 N.J. 79
    , 87-88 (2010)). "Reconsideration cannot be
    used to expand the record and reargue a motion" and does not "serve as a vehicle
    to introduce new evidence in order to cure an inadequacy in the motion record."
    Cap. Fin. Co. of Del. Valley, Inc. v. Asterbadi, 
    398 N.J. Super. 299
    , 310 (App.
    Div. 2008).
    We review the denial of a motion for reconsideration for an abuse of
    discretion. Branch v. Cream-O-Land Dairy, 
    244 N.J. 567
    , 582 (2021). "An
    abuse of discretion arises when a decision is made without a rational
    explanation, inexplicably departed from established policies, or rested on an
    impermissible basis." Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 
    440 N.J. Super. 378
    , 382 (App. Div. 2015) (internal quotation marks omitted)
    (quoting Flagg v. Essex Cnty. Prosecutor, 
    171 N.J. 561
    , 571 (2002)).
    Rule 4:50-1 states:
    [T]he court may relieve a party . . . from a[n] . . . order
    [if] . . . (c) [there is] . . . misconduct of an adverse party;
    . . . (e) . . . it is no longer equitable that the . . . order
    should have prospective application; or (f) any other
    reason justifying relief from the operation of the . . .
    order.
    A-0354-20
    14
    "Courts should use Rule 4:50-1 sparingly, in exceptional situations[.]" Hous.
    Auth. of Morristown v. Little, 
    135 N.J. 274
    , 289 (1994). "[T]o establish the
    right to such relief, it must be shown that enforcement of the order or judgment
    would be unjust, oppressive or inequitable." Harrington v. Harrington, 
    281 N.J. Super. 39
    , 48 (App. Div. 1995).         We review a trial court's Rule 4:50-1
    determination for an abuse of discretion.       Deutsche Bank Tr. Co. Ams. v.
    Angeles, 
    428 N.J. Super. 315
    , 318-19 (App. Div. 2012).
    "We review the Family Part judge's findings in accordance with a
    deferential standard of review, recognizing the court's 'special jurisdiction and
    expertise in family matters.'" Thieme v. Aucoin-Thieme, 
    227 N.J. 269
    , 282-83
    (2016) (quoting Cesare v. Cesare, 
    154 N.J. 394
    , 413 (1998)). We interfere
    "[o]nly when the trial court's conclusions are so 'clearly mistaken' or 'wide of
    the mark' . . . to ensure that there is not a denial of justice." N.J. Div. of Youth
    & Fam. Servs. v. E.P., 
    196 N.J. 88
    , 104 (2008) (quoting N.J. Div. of Youth &
    Fam. Servs. v. G.L., 
    191 N.J. 596
    , 605 (2007)). However, we owe "no deference
    to the judge's decision on an issue of law or the legal consequences that flow
    from established facts." Dever v. Howell, 
    456 N.J. Super. 300
    , 309 (App. Div.
    2018) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 
    140 N.J. 366
    , 378 (1995)).
    A-0354-20
    15
    II.
    At the outset, we decline to consider defendant's arguments challenging
    the March order on service of process and procedural grounds. Defendant's
    initial motion for reconsideration was filed on June 9, 2020, well after the
    twenty-day time limit set forth in Rule 4:49-2. As a result, the March order
    became final on April 16, 2020, and defendant did not timely appeal. See R.
    2:4-1. We affirm the decision not to revisit the March order because it is final
    and for the reasons expressed by the motion judge.
    III.
    Defendant argues the judge abused his discretion when he denied
    reconsideration of the July order and denied relief from the July and September
    orders under Rule 4:50-1. He argues the court should have granted his Rule
    4:50-1(c) and (e) motion because plaintiff's withdrawal of funds from the college
    account constituted misconduct, which no longer made the March order
    equitable. He contends he was entitled to relief under Rule 4:50-1(f) because
    he paid for all the children's expenses without plaintiff's contribution, and
    plaintiff delayed in filing her enforcement motion. He argues the judge should
    have: 1) granted him a credit for automobile, medical and college-related
    expenses paid on behalf of plaintiff and the children; 2) denied plaintiff a credit
    A-0354-20
    16
    for the furniture because the MSA contemplated the parties would divide their
    personal property; 3) denied plaintiff a credit for the Chrysler Aspen because he
    replaced the vehicle with a Chrysler 300 for plaintiff to drive; and 4) granted
    him a credit for the utilities paid for the marital residence as required by the
    MSA.
    Having considered these arguments pursuant to the record and our
    standard of review, we affirm substantially for the reasons expressed by the
    motion judge. We add the following comments.
    Defendant's arguments the judge erred by not granting him relief because
    of the withdrawals from the college account are unpersuasive because the
    September orders granted defendant a credit for one-half of the funds taken. The
    judge found the accounts belonged to the parties for the benefit of the children
    and compensated defendant for his share of the funds. Plaintiff's conduct did
    not obviate the finding defendant violated litigant's rights in failing to pay
    plaintiff the sums due under the MSA and did not warrant relief from the March
    order under any subpart of Rule 4:50-1.
    The judge did not err when he declined to consider credits for the
    automobile, medical, and college-related expenses defendant said he paid
    because they were not bargained for in the MSA. The money awarded to
    A-0354-20
    17
    plaintiff for her share of the vehicle was consistent with the MSA requiring
    defendant to pay plaintiff one-half of the Aspen's value as equitable distribution
    and was based on an unopposed and objective estimate of the vehicle's value.
    The MSA permitted the parties to resort to the court if they could not resolve
    the division of their furniture and did not foreclose a money judgment as a means
    of resolving the issue.
    Although defendant was entitled to a credit for the utilities, he failed to
    provide the court with the evidence when plaintiff filed her initial motion to
    enforce litigant's rights.     When defendant filed his first motion for
    reconsideration and relief from the March order, he still failed to provide the
    necessary evidence. He provided the PSE&G evidence on the third attempt, and
    even with the evidence the amount sought was indiscernible because defendant
    sought a credit for March 2009 to January 2013, yet plaintiff moved out of the
    marital residence in November 2011.
    Under Rule 4:49-2, a court "focuses upon what was before the court in the
    first instance." Lahue v. Pio Costa, 
    263 N.J. Super. 575
    , 598 (App. Div. 1983).
    Reconsideration is properly denied if a litigant asserts "facts known to him [or
    her] prior to the entry of the order . . . ." Palombi v. Palombi, 
    414 N.J. Super. 274
    , 289 (App. Div. 2010). Defendant knew he was entitled to credits for
    A-0354-20
    18
    utilities and did not give the court the proofs when it heard plaintiff's motion to
    enforce litigant's rights. Furthermore, defendant's failure to provide the court
    with the PSE&G bill until months after the fact did not constitute the sort of
    exceptional circumstances warranting relief from the March and July orders
    under Rule 4:50-1.
    IV.
    Defendant argues the 7.5% interest rate used by plaintiff's expert to
    calculate the judgment for the outstanding lump sum payments is excessive and
    constitutes exceptional circumstances warranting relief from the March order.
    He asserts the judge contravened Rule 4:42-11(a), which governs post-judgment
    interest rates.
    The decision to award interest is within the court's discretion. Clarke v.
    Clarke ex rel. Costine, 
    359 N.J. Super. 562
    , 571 (App. Div. 2003). However,
    with regards to the interest rate itself, absent an agreement between the parties,
    post-judgment interest is governed by Rule 4:42-11(a). Rule 4:42-11(a)(ii) and
    (iii) state
    interest shall equal the average rate of return, to the
    nearest whole or one-half percent, for the
    corresponding preceding fiscal year terminating on
    June 30, of the State of New Jersey Cash Management
    Fund (State accounts) as reported by the Division of
    Investment in the Department of the Treasury, but the
    A-0354-20
    19
    rate shall be not less than 0.25% . . . plus 2% per annum.
    [For current rates see Publisher's Note Below]
    The comment to Rule 4:42-11(a) states that "[i]nterest for each period
    covered by a different rate must be separately calculated in order to arrive at
    total post[-]judgment interest." Pressler & Verniero, Current N.J. Court Rules,
    cmt. 1.1 on R. 4:42-11 (2022). See also Waldron v. Johnson, 
    368 N.J. Super. 348
    , 355 (App. Div. 2004) ("[Rule] 4:42-11, itself, requires that for each year of
    accrual, the rate of interest must be ascertained by reference to the average rate
    of return for the preceding year . . . .") (emphasis added); Brinkley v. W. World
    Inc., 
    292 N.J. Super. 134
    , 137-38 (App. Div. 1996) ("we conclude that the [post-
    judgment] interest should be calculated for each year in accordance with the
    applicable interest rate for each year as established by [Rule] 4:42-11(a).").
    As we noted, the MSA was incorporated into the parties' JOD, which
    became final on August 7, 2009. According to plaintiff, the 7.5% figure was
    derived by taking the 5.5% interest rate for 2008 and adding the additional 2%
    per annum pursuant to Rule 4:42-11(a)(iii). The expert then used this fixed rate
    to calculate the interest due on various payments owed to plaintiff from 2009 to
    2016, resulting in a total interest amount of $233,990.55.
    However, the MSA required defendant to pay plaintiff over a course of
    several years following entry of the JOD in 2009. According to the publisher's
    A-0354-20
    20
    note in Rule 4:42-11, the interest rates varied each year since the JOD and were
    less than the 7.5% used by plaintiff's expert. Therefore, the use of a flat interest
    figure was incorrect, and the judge misapplied the law. For these reasons, we
    are constrained to remand the interest computation for recalculation in
    accordance with Rule 4:42-11(a)(ii) and (iii) and entry of an amended judgment
    in plaintiff's favor.
    V.
    Defendant's remaining arguments on appeal lack sufficient merit to
    warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E).
    Affirmed in part and remanded in part. We do not retain jurisdiction.
    A-0354-20
    21