LAURA DILAURA VS. EDWARD DILAURA, SR. (FM-16-1348-97, PASSAIC COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-3656-18T1
LAURA DILAURA,
Plaintiff-Appellant,
v.
EDWARD DILAURA, SR.,
Defendant-Respondent.
__________________________
Submitted March 2, 2020 – Decided April 23, 2020
Before Judges Messano and Vernoia.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Passaic County,
Docket No. FM-16-1348-97.
Eric J. Warner, LLC, attorneys for appellant (Eric
James Warner, of counsel and on the briefs).
Law Offices of Edward P. Azar, LLC, attorneys for
respondent (Edward P. Azar, on the brief).
PER CURIAM
In this post-judgment matrimonial matter, plaintiff Laura DiLaura appeals
from a March 14, 2019 order denying her motion for relief in aid of litigant 's
rights to compel her former husband, defendant Edward DiLaura, Sr., to comply
with the terms of the parties' 1998 final judgment of divorce (JOD), and granting
defendant's cross-motion for emancipation of the parties' two adult children,
termination of his child support obligation, and an attorney's fee award. Having
reviewed the record in light of the applicable law, we affirm in part, vacate in
part, and remand for further proceedings.
I.
Prior to addressing plaintiff's arguments challenging the March 14, 2019
order from which she appeals, we summarize the pertinent proceedings between
the parties.
The Parties' 1998 Divorce and Defendant's Payment of Child Support
Plaintiff and defendant married in 1987 and divorced in 1998. They have
two children: Edward DiLaura, Jr. (Edward, Jr.), born in 1991; and Emily
DiLaura (Emily), born in 1994. The parties' 1998 JOD provided for joint legal
custody of the children and granted plaintiff residential custody. In relevant
part, the JOD required defendant pay $180 per week in child support, and the
parties equally share payment of the children's unreimbursed medical expenses.
A-3656-18T1
2
The JOD also provided the parties "shall consult with each other" concerning
where the children will go to college, "the cost of . . . same and whether or not
the parties can afford said education," and, "[i]n the event the parties agree to a
specific . . . college[,] . . . it is agreed [they] shall pay for the same based on
their respective incomes at the time of enrollment."
Edward, Jr. attended college and graduated in May 2014, at age twenty-
two. Upon Edward, Jr.'s graduation, defendant unilaterally reduced his weekly
child support payments from the $180 required by the JOD to $100. Emily
attended college, and, following her May 2016 graduation, defendant stopped
paying child support altogether.
2017 – The Parties' First Post-Judgment Motions
In March 2017, plaintiff filed the first post-judgment application
following entry of the JOD nineteen years earlier. She moved for relief in aid
of litigant's rights to: compel defendant to pay past due and future child support;
modify the child support amount; require that defendant pay his share of the
children's past, present, and prospective education costs and expenses; compel
defendant to pay for past and future unreimbursed medical expenses; direct that
defendant maintain a life insurance policy for the benefit of the children; and
require defendant's payment of plaintiff's attorney's fees. Defendant cross-
A-3656-18T1
3
moved for an order retroactively emancipating Edward, Jr. and Emily on the
dates of their respective college graduations; terminating his child support
obligation; and requiring that plaintiff pay his attorney's fees.
The court heard argument on the motions and entered July 14, 2017 orders
denying without prejudice defendant's cross-motion for emancipation of the
children, termination of child support, and attorney's fees. The court granted
plaintiff's motion compelling defendant to pay $8622.64 in child support arrears
based on the JOD's $180 weekly support rate, and directing defendant pay
$182.91 per week toward the arrears. The court did not address the merits of
plaintiff's requests for an increase in child support, defendant's payment for the
children's education and medical expenses under the JOD, or plaintiff's request
for an attorney fee award. Instead, the court directed that the parties attempt to
work out their remaining claims—those the court denied without prejudice—in
mediation. Neither party sought leave to appeal from the July 14, 2017 orders,
and neither party appeals from those orders. The mediation was unsuccessful.
The Parties' 2018 Motions
On May 1, 2018, plaintiff filed a second motion for relief in aid of
litigant's rights. She again sought to enforce the JOD's terms and reprised some
of the requests the court denied in 2017 without prejudice. Plaintiff moved for
A-3656-18T1
4
an order compelling defendant to: pay "outstanding past child support" and
"increased child support"; pay his "fair share" of the children's past and future
"higher education tuition and expenses" and medical expenses; maintain life
insurance or provide a security interest on property as security for payment of
defendant's obligations; and pay plaintiff's attorney's fees for the mediation and
court proceedings. Defendant filed a cross-motion for an order: denying the
relief sought by plaintiff; sanctioning plaintiff for filing a frivolous motion;
retroactively emancipating the children on the dates of their respective college
graduations; declaring plaintiff and the children responsible for the claimed
education and medical expenses; and awarding defendant attorney's fees.
The court rendered its decision on the motions in a March 14, 2019 order.
The order is unaccompanied by a written or oral decision and includes only scant
conclusory findings supporting the court's disposition of the parties' various
requests.
In pertinent part, the order grants a portion of defendant's cross-motion.
The court determined the children graduated from college and were
emancipated, but it rejected defendant's claim their emancipations were
effective on the dates of their college graduations. Instead, the court
A-3656-18T1
5
retroactively emancipated the children to May 24, 2018, the date defendant filed
his cross-motion for emancipation.
The court denied plaintiff's motion for an award of back child support,
finding defendant had paid $7918.40 of the amount the court found due in its
July 14, 2017 orders, and directing defendant pay any remaining child support
arrears through the May 24, 2018 emancipation date. The court denied plaintiff's
request for a hearing as to whether defendant's child support should be
retroactively modified, and it denied plaintiff's request that defendant pay for
the children's medical expenses because plaintiff "fail[ed] to provide sufficient
proof of payment of such expenses." The court further denied plaintiff's request
that defendant pay the children's education expenses, finding plaintiff did not
comply with the JOD's requirement that the parties confer concerning those
expenses before they were incurred.
Plaintiff appeals from the court's March 14, 2019 order, and she presents
the following arguments:
POINT I[]
THIS COURT SHOULD OVERRULE THE LOWER
COURT'S DENIAL OF PLAINTIFF'S MOTION TO
ENFORCE LITIGANT'S RIGHTS TO COMPEL
DEFENDANT TO PAY BACK CHILD SUPPORT &
EXPENSES THROUGH PROBATION AND
A-3656-18T1
6
SHOULD ORDER A PLENARY HEARING ON
DEFENDANT'S ABILITY TO PAY.
POINT II[]
THIS COURT SHOULD ENFORCE LITIGANT'S
RIGHTS AND COMPEL DEFENDANT TO PAY HIS
FAIR SHARE OF THE CHILDREN'S HIGHER
EDUCATION COSTS.
POINT III[]
DEFENDANT SHOULD BE COMPELLED TO USE
BEST EFFORTS TO OBTAIN A LOAN TO PAY THE
CHILDREN'S EDUCATIONAL EXPENSES AND TO
OBTAIN LIFE INSURANCE NAMING THE
CHILDREN AS BENEFICIARIES.
POINT IV[]
DEFENDANT SHOULD BE COMPELLED TO PAY
LEGAL FEES AND COSTS INCURRED TO DATE
FOR HIS GENERAL LACK OF GOOD FAITH AND
OVERALL REFUSAL TO COOPERATE HAVE
REFLECTED THE FUTILITY OF SEEKING HIS
COOPERATION BY ANY MEANS OTHER THAN
COURT ORDER, AND THIS COURT SHOULD
OVERRULE THE LOWER COURT'S ORDER THAT
PLAINTIFF PAY DEFENDANT'S FEES.
II.
Plaintiff argues the court erred by denying her motion for relief in aid of
litigant's rights. She asserts the court failed to enforce the provisions of the JOD
requiring defendant pay child support, unreimbursed medical expenses, and his
A-3656-18T1
7
share of their adult children's higher education costs. She also contends the
court erred by failing to order defendant to obtain life insurance to ensure
payment of his putative obligations and denying her request for an attorney fee
award.1
A motion to enforce litigant's rights is the appropriate vehicle to enforce
a court's prior order, Abbott v. Burke, 206 N.J. 332, 359 (2011), and "[t]he scope
of relief in a motion in aid of litigants' rights is limited to remediation of the
violation of a court order," id. at 371. We review a trial court's enforcement of
litigant's rights pursuant to Rule 1:10–3 under an abuse of discretion standard.
Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011). 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.'" Flagg
v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso–Sanchez
v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).
1
Plaintiff does not challenge on appeal the court's March 14, 2019 order
addressing and deciding other issues she raised before the motion court. We
therefore limit our discussion to those parts of the order plaintiff challenges on
appeal and affirm those parts she opted not to challenge. See Sklodowsky v.
Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) (holding issues not briefed
on appeal are deemed waived).
A-3656-18T1
8
We begin our analysis of plaintiff's arguments by noting the lack of
findings of fact supporting the conclusions of law in the court's March 14, 2019
order. Rule 1:7-4 provides a trial judge "shall, by an opinion or memorandum
decision, either written or oral, find the facts and state its conclusions of law
thereon . . . on every motion decided by a written order that is appealable as of
right." A trial court must "state clearly its factual findings and correlate them
with the relevant legal conclusions." Gnall v. Gnall, 222 N.J. 414, 428 (2015)
(quoting Curtis v. Finneran, 83 N.J. 563, 570 (1980)).
A court's statement of legal conclusions untethered to any findings of fact,
"constitutes a disservice to the litigants, the attorneys, and the appellate court."
Ibid. (quoting Curtis, 83 N.J. at 569-70). Where, as here, the court's order is
devoid of the fact-finding that "is fundamental to the fairness of the proceedings
and serves as a necessary predicate to meaningful review," Ducey v. Ducey, 424
N.J. Super. 68, 74 (App. Div. 2012) (quoting R.M. v. Supreme Court of N.J.,
190 N.J. 1, 12 (2007)).
Most simply stated it is impossible to determine if the court abused its
discretion in denying plaintiff's motion to enforce the child support, medical
expense reimbursement, and higher education expense provisions of the JOC
because the court did not make the requisite fact-findings supporting its
A-3656-18T1
9
determinations on those issues. As a result, we are compelled to vacate the
court's order denying plaintiff's motion for relief in aid of litigant's rights on
those issues and remand for reconsideration by the motion court of those issues,
as raised by plaintiff on appeal, Elrom v. Elrom, 439 N.J. Super. 424, 443 (App.
Div. 2015).
There is one exception to our need to vacate and remand on those issues.
It is unnecessary that we vacate and remand for a determination whether plaintiff
is entitled to enforcement of the JOD's child support obligation. The record
permits our determination the court did not err by enforcing plaintiff's motion
to enforce the JOD's requirement defendant pay $180 per week in child support.
In its June 14, 2017 orders, the court determined, based on the JOD's $180
weekly rate, defendant owed $8622.64 in past-due child support and directed
defendant pay child support arrears at the rate of $182.91 per week. The court
also directed defendant to make current payments of child support in accordance
with the JOD.
Plaintiff does not appeal from the June 14, 2017 orders, and she is
therefore bound by them. See 1266 Apartment Corp. v. New Horizon Deli, Inc.,
368 N.J. Super. 456, 459 (App. Div. 2004) (explaining "it is only the judgment
or orders designated in the notice of appeal which are subject to the appeal
A-3656-18T1
10
process and review"). Plaintiff also does not offer any argument challenging the
June 14, 2017 orders. See Sklodowsky, 417 N.J. Super. at 657. We therefore
accept the court's orders as a final and unchallenged determination that
defendant's child support obligation under the JOD was $8622.64 through June
14, 2017.
Defendant fully complied with the June 14, 2017 orders, and, in the March
14, 2019 order plaintiff challenges on appeal, the court again directed defendant
pay child support at the weekly rate set forth in the JOD through the date of the
children's emancipation. The court did not err by failing to enforce defendant's
child support obligation under the JOD. To the contrary, the March 14, 2019
order required defendant make his child support payments in exacting
compliance with the JOD's express terms. We therefore affirm the court's March
14, 2019 order denying plaintiff's motion to enforce the JOD's requirement
defendant pay $180 per week in child support.
As noted, the court's failure to make the required findings of fact and
conclusions of law in accordance with Rule 1:7-4 requires vacation of the court's
March 14, 2019 order deciding the remaining issues plaintiff raises on appeal.
Those issues are limited to plaintiff's claims she is entitled to enforcement of the
JOD's provisions: permitting adjustment of child support "every two years to
A-3656-18T1
11
reflect a change in the cost of living, pursuant to R. 5:6B"; providing for each
party's payment of "one-half of the cost of the unreimbursed medical/dental/eye
expenses of the children"; and stating the parties "shall consult with each other
in regards to the . . . college education of their children at the time of their
anticipated enrollment," discuss "the cost of the same and whether or not the
parties can afford said education," and, "[i]n the event [they] agree to a specific
. . . college[,] . . . it is agreed that the parties shall pay for the same based on
their respective incomes at the time of enrollment." On remand the court shall
reconsider, decide, and make findings in accordance with Rule 1:7-4 concerning
those issues.
We therefore vacate the court's order denying plaintiff's motion for relief
in aid of litigant's rights under the JOD to compel defendant to contribute to the
children's higher educational expenses and unreimbursed medical expenses; and
pay increased child support based on any claimed cost of living increase under
Rule 5:6B, and remand for further proceedings. The court shall conduct such
additional proceedings to address the issues as it deems appropriate. We offer
no opinion on the merits, if any, of plaintiff's claims or defendant's opposition.
Our remand on those issues necessarily requires vacation of the court's
order awarding defendant attorney's fees and rejecting plaintiff's request
A-3656-18T1
12
defendant be directed either to obtain a loan or life insurance to ensure payment
of his obligations. On remand, the court shall reconsider and decide those
requests anew following its determination of the other issues.
We affirm those portions of the court's order plaintiff has not challenged
on appeal, as well as the court's order directing that defendant pay child support
at the JOD's $180 weekly rate through the date of the children's emancipation.
Affirmed in part, vacated in part, and remanded for further proceedings
in accordance with this opinion. We do not retain jurisdiction.
A-3656-18T1
13