SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A

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- 18T3 ALBERTO TRONCOSO, Plaintiff

- Respondent,

v. SAMIRA ZAMEL,
De fendant

- Appellant.

______________ _______________

Argued t elephonically May 13, 2020

– Decided June 9, 2020 Before Judges Whipple, Gooden Brown, and Mawla. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, D ocket No. FM

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- 06. Paul C. Lomberg argued the cause for appellant (Lomberg & Del V escovo, LLC, attorneys; Paul C. Lomberg and Francine DelVescovo, on the briefs). Brian M. Schwartz argued the cause for respondent (Schwartz Vinhal & Lomurro Family La w, LLC, attorneys; Brian M. Schwartz, on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute prec edent or be binding upon any court

. " A lthough 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

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- 18T3 2 Defendant Samira Zamel appeals from a February 25, 2019 order entered following a post

- judgment plenary hearing, adjudicating the parties' obligation for college expenses, child support, m edical insurance, and counsel fees

. Defendant also challenges an April 26, 2019 order addressing her obligation to reimburse plaintiff Alberto Troncoso for these expenses. We affirm. The parties divorced in 2009 following a nearly fourteen

- year marriage , which produced a son and a daughter , who are now twenty

- one and nineteen years of age, respectively. Pursuant to th e parties ' Matrimonial Settlement Agreement (MSA), plaintiff paid defendant $2166 per month in child support from January 2009 to January 2011, based on an agreed upon gross income of $500,000 for plaintiff and no earned income for defendant. Thereafter, in accordance with the MSA, plaintiff agreed to pay defendant $3000 per month in child support from 2011 to 2016. This sum was based on p laintiff ' s gross income of $500,000, and an agreed upon imputed income for defendant of $45,000. The MSA stipulated the parties could apply to modify child support after January 2011 based upon a substantial change in circumstances. Under the MSA, plain tiff also paid defendant term alimony starting at $180,000 per year for two years following the divorce, and thereafter reducing to $90,000 per year plus fifteen percent of plaintiff's earnings over $350,000 until 2015, at which point alimony terminated. Alimony was based on anA

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- 18T3 3 imputed income of $45,000 to defendant , and the parties agreed she could earn up to $100,000 per year without her earnings triggering an alimony
modification. The MSA imputed income to defendant because she was unemployed at the ti me of the divorce, having left her career in corporate finance after the birth of the parties' daughter. Defendant enrolled in nursing school in 2015, and in July 2017, commenced full

- time employment as an
emergency room nurse. Pertinent to the issues r aised on this appeal, t he MSA also stated: 6.1(D). Upon graduation from high school of any child, the amount of child support shall be reviewed by the parties taking into consideration the parties ' respective contribution to post

- secondary education, the parties ' respective incomes and the Child Support Guidelines, effective at that time as adopted by the State of New Jersey.

. . . . 6.3

. The parties acknowledge that each of them shall have an obligation to contribute toward the undergraduate college, j unior college, vocational or trade school education of any child of the marriage

. . . . Such payments shall include all necessary charges for application fees, pre

- admission standardized tests, tuition, room, board, activity fees, lab fees, books and sup plies, transportation, etc. . . . The proportion of each party ' s contribution toward such expenses shall be governed by the factors as setA

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- 18T3 4 forth in Newburgh v. Arrigo 1 or other statutory and case law that may then exist.

. . . . 6.4(D). It is the expe ctation of the parties that [defendant] shall obtain employment for which she receives a wage.

. . . . 6.9. Work

- related child care. Should the [defendant] obtain full time employment, which employment requires reasonable work

- related child care with an accredited or otherwise agreed

- upon child care provider, [plaintiff] shall pay [sixty

- six percent] of said cost directly to the provider, and the [defendant] shall pay [thirty

- four percent] of said cost. The percentage contribution toward child care m ay be reviewed and reallocated at any time alimony and/or child support is reviewed and/or reallocated. The parties ' son enrolled at Rutgers University beginning in Fall 2017, and in September 2017 plaintiff moved to enforce the college contribution
pr ovision of the MSA and modify child support due to the son's residence on
campus. Defendant cross

- moved to deny the motion and compel plaintiff to pay the college expenses in full and continue paying her $3000 per month in child support. Alternatively, d efendant sought an increase in child support if the court determined both parties were to contribute to college , arguing the parties' son would be home 177 days during the school year. She also argued

1 88 N.J. 529 (1982).A

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- 18T3 5 an increase was warranted based on a change in circums tances, including the children's maturation and the termination of alimony.
The trial judge conducted a three

- day plenary hearing , during which each party testified and entered the February 2019 order , making all relief retroactive to the motion filing date. The judge ordered : (1) the parties to pay college expenses for their son in proportion to their income, allocating eighty

three percent of expenses to plaintiff and seventeen percent to defendant; (2) child support of $458 per week; (3) plaintiff co ntinue to pay for the children's automobile, extracurricular, cellular telephone, computer, college prep and tutor, medical and dental insurance , and unreimbursed medical expenses; ( 4 ) defendant pay $10,000 representing twenty

- five percent of plaintiff's c ounsel fees ; and (5) i f the parties could not agree on a payment schedule for the college costs and reimbursement of child support, the y could submit certifications setting forth their proposed repayment schedules for the judge to decide

. The judge also issued detailed written findings. She addressed each Newburgh factor and concluded the factors favored defendant's contribution to the college expense. She stated :

The only real issue regarding the cost of the children's education is that the [d] efenda nt thought that she did not have to pay her fair share of the cost because she believed that [p] laintiff was going to payA

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- 18T3 6 for the entire cost for both children.

. . . There was nothing in the proofs presented at the [p] lenary [h] earing or in the parties' MSA that would lead anyone, including the [d] efendant, to believe that the [p]l aintiff planned to pay for the entire cost of college without some contribution from the [d] efendant. Also, [d] efendant lacked credibility when discussing her financial infor mation

. Defendant intentionally misrepresented facts in her initial [c] ertification filed with the court. For example , [d] efendant alleged that she was unable to maintain employment earlier than 2017, because no provision had been made for work related c hildcare in the MSA. Paragraph 6.9 of the parties' MSA specifically provides for a [sixty

- six percent] / [thirty

- four percent] allocation of work [

- ] related childcare expenses. Defendant represented to the court that [p] laintiff had unilaterally set up tuto rs for [the son]

. Several text exchanges were provided to the court, which clearly showed [d] efendant's involvement in the selection and scheduling of tutoring. Defendant represented to the court that [p] laintiff did not approach her about the college de cision process until [the son] had decided to attend Rutgers. Again, text messages were provided to the c ourt that showed [p] laintiff approached [d] efendant regarding college selection as early as February 2016. Defendant provided conflicting accounts in her Case Information Statement [CIS]

. In her May 14, 2018 CIS, [d] efendant claims that her extra expenses for the children amount to [ $4285 ] per month. Upon cross - examination of her testimony, many of the expenses [d] efendant claimed as extra expenses were already being paid by [p] laintiff, including car insurance for the children, car payment for [the son] , vacations, weekly spending money and college costs.

. . . Defendant claimed expenses she never incurred and that she tried to have this court bel ieve that sheA

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- 18T3 7 only earned $29,000 per year when in fact, that amount constituted her salary for less than one

- half of the year. Her projected income for 2018 based upon her weekly salary is approximately $71,500 [] , not the $29,000 that she claimed.

. . . In determining each parties' responsibility in relation to [the son] ' s college tuition and costs, the [c]ourt calculated the proportionate share based o n the parties' incomes for 2018 attributing $465,423 [] that he earned in 2017 to [p] laintiff and $71, 500 [] to [d] efendant

. . . . Accordingly, [p] laintiff shall pay [eighty

- three percent] of [the son] ' s college costs and tuition per year and [d] efendant shall pay [seventeen percent] of [the son] ' s college tuition and costs per year, which the [c] ourt fin ds is affordable for [d] efendant to pay. The cost of tuition at Rutgers is $29,088 [] per year, and [d] efendant's [seventeen percent] share of the cost is approximately [ $4900 ] per year. Defendant would have to pay approximately $412.00 per month, which i s affordable for the [d] efendant. The judge addressed each factor of N.J.S.A. 2A:34

- 23(a) governing child support and concluded the factors favored plaintiff . She found :

The parties ' son . . . is in college and resides there during the school year wit h the exceptions of some weekends and the [p] laintiff pays for many of t he expenses that are provided for in the [g] uidelines or that the [d] efendant would have a responsibility to contribute. Instead of seeking contribution, [p] laintiff has decided not t o require contribution from the [d] efendant to pay those expenses she would be responsible to pay under the parties' MSA and the

. . . [g] uidelines. In addition, it is clear to the [c] ourt that the parties followed the . . . [g] uidelines in establishing t he initial [c] hild [s] upport and the increase that was effective on January 15, 2011. TheA

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- 18T3 8 support was established at [ $2166 ] per month. The calculation included an imputation of $45,000 [] to [d]e fendant and [p] laintiff was earning $500,000 []

. Since that time, the parties' son is in college, the [d]efendant ' s income increased to $71,000 [] and the [p] laintiff's income has decreased to $465,423 []

. Defendant sought [c] hild [s] upport in excess of the [g] uidelines and argued that the children's expenses an d lifestyle warrant an increase over the [g] uidelines. The [c] ourt finds that [d] efendant was less than candid with this [c] ourt during her testimony regarding her lifestyle, her income and expenses. She exaggerated her expenses incurred in maintaining t he children's lifestyle and testified to expenses that the [p] laintiff pays for [to] which she has not contributed. Defendant's current lifestyle exceeds the lifestyle enjoyed by the parties during their marriage.

. . . This [c] ourt cannot ignore the f act that almost all of th e extra expenses for the children, some of which are substantial, are paid by the [p]l aintiff without contribution from the [d] efendant. The additional needs of the children are being met by the [p]l aintiff. Since the parties' in comes are so disparate, a deduction in support for [the son] because he is away at college at times would be unfair . The school is located close to the [d] efendant's home and the child is home often during the weekends. The children's overnights with t he [p] laintiff are not as specified in the MSA. Since they have grown older, the children have less regimented time with the [p] laintiff. Plaintiff testified that the children spend many overnights with him especially during their breaks in school and du ring the summer when they participate in internships that he arranges. Based upon the testimony of the [p] laintiff, which this court finds to be credible, the court will use [fifty

- two] overnightsA

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- 18T3 9 as a reasonable amount to be credited to the [p] laintiff f or the determination of [c] hild [s] upport. Therefore, in applying the

. . . [g] uidelines, the [p] laintiff shall pay the [d] efendant $458 [] per week effective on September 19, 2017, the date of the filing of the [m] otion, directly to [d] efendant. The ju dge also assessed the Rule 5:3

- 5(c) factors. She concluded: Plaintiff shall be awarded counsel fees. The [c] ourt made this finding based on [d] efendant's lack of credibility . . . [and] explicit acknowledgement of her obligation to contribute to [the son ] ' s higher education costs in the MSA, yet her unwillingness to contribute any funds toward the cost when the time came to do so, and [her] bad faith. Defendant's choice to wait until 2017 to return to the work force caused her to be in a position of hav ing less assets, as she chose not to work from the date of the [final judgment of divorce] until 2017, even though she could have earned up to $100,000 per year without deduction from her alimony. Defendant not only could have acquired more assets by retu rning to work

. . . but she would have been earning more than she is presently earning, as she would have been receiving increases in her salary as her experience grew. Furthermore, she could have saved her entire salary during the period that [a]limony w as being paid, as the provisions of the MSA clearly permitted her to make up to $100,000 and still receive alimony. Defendant clearly entered into the MSA and ignored the provisions that she was required to contribute and chose to leave h erself in an ec onomic position that was substandard to the [p]laintiff ' s. She lives far above her means and the mari tal lifestyle

. She benefitted from the provisions of the MSA that the plaintiff was responsible to pay, such as alimonyA

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- 18T3 10 and child support, yet she steadf astly refused to contribute to the cost of college even though she was required to do so. Defendant certainly could have accumulated more assets and increased her sal a ry if she returned to work as agreed to instead of waiting until 2017 to obtain employme nt. Defendant continued to hold the unreasonable position throughout the pendency of this matter that she should not have to contribute toward the cost of college and the [c] hild [s] upport should not be reduced because she could not afford the reduction

. She filed misleading statements in her initial CIS and was deceitful in her testimony regarding he r involve ment in the college decision process, including the [p]l aintiff ['] s alleged unilateral decision to enroll the child in tutoring and her income. It was evident to the [c] ourt that the [d] efendant's focus was on her own needs and lifestyle, not on the children's. Plaintiff more than fairly asks for [twenty

- five percent] of the cost of his counsel fees, in the amount of $10,000 [] for [d] efendant's b ad faith. This Court finds the certification of counsel fees in the amount of $39,337 [] along with costs of $889.85 to be fair and reasonable and [d] efendant should be responsible to pay $10,000 [] toward the cost. Even though the [p] laintiff earns sign ificantly more than the [d] efendant does, an award of counsel fees based upon bad faith may be awarded. The parties could not agree upon a repayment schedule. Therefore, the trial judge entered the April 2019 order compelling defendant to re - pay plaint iff at a rate of $200 per month for defendant's share of the 2017

- 2018 tuition in the amount of $9764.28, and credit ed plaintiff's child support in theA

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- 18T3 11 amount of $5470 representing his overpayment of child support. The judge reasoned as follows :

[T]his co urt does not believe a substantial deduction in the [p]laintiff ' s weekly child support obligation is an equitable or reasonable solution to crediting the [p]laintiff for overpayments he is owed. This [c]ourt is cognizant of the [d]efendant ' s position that she cannot afford to meet the financial obligations of the parties ' children, while also satisfying other financial requirements set forth by the [c]ourt, if the [p]laintiff ' s [c]hild [s]upport obligation is drastically, albeit temporarily, reduced in ord er to provide him with a credit for overpayment. However, the [p]laintiff is still entitled to said credit, and a slight modification to his [c]hild [s]upport obligation is necessary.
I.

" When reviewing decisions granting or denying applications to modif y child support, we examine whether, given the facts, the trial judge abused his
or her discretion. " Jacoby v. Jacoby , 427 N.J. Super. 109, 116 (App. Div. 2012) . We apply the same standard of review when determining a parent's obligation to contribute to a child's college costs. Avelino

- Catabran v. Catabran , 445 N.J. Super. 574, 588 (App. Div. 2016). " We must accept the Family Part's determination concerning a parent's obligation to contribute toward college tuition, provided the factual findings are su pported by substantial credible evidence in the record and the judge has not abused his or her discretion. " Ibid.A

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- 18T3 12 Counsel fee determinations also rest within the trial judge's sound discretion. Williams v. Williams , 59 N.J. 229, 233 (1971). We will dis turb a
trial court's counsel fee determination "only on the 'rarest occasion,' and then only because of clear abuse of discretion." Strahan v. Strahan , 402 N.J. Super. 298, 317 (App. Div. 2008) (quoting Rendine v. Pantzer , 141 N.J. 292, 317 (1995)).
A.
D e fendant argues the trial judge's allocation of college expenses was

" unsupported by the evidence, the testimony of the parties, or the findings of fact by the [t]rial [c]ourt, " and asserts the judge failed to consider the
children's needs or best interests . She argues the judge gave no " reason[s] as to the weighing of the twelve Newburgh criteria, " and failed to consider plaintiff ' s ability to pay the entire expense , defendant's inability to contribute as a result of the additional costs she incurred relat ed to the son's education , and the disparity in the parties' incomes. Defendant also argues the judge erroneously concluded defendant misrepresented her income in an effort to intentionally mislead the court , inaccurately recounted the parties' conversati ons regarding tutors and the college selection process, and mistakenly concluded defendant believed plaintiff would pay the entire college expense regardless of the c ircumstances.A

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- 18T3 13 Defendant's claims regarding the judge's Newburgh factor findings lack

mer it. R. 2:11

- 3(e)(1)(E). Setting aside the fact the parties ' MSA clearly and unambiguously obligated them to contribute to college, t he judge addressed each Newburgh factor and concluded the majority favored a contribution by defendant to the expense

. In addition to the MSA language , the factual evidence did not support defendant's argument that plaintiff shoulder the college burden alone. T he parties' communications and testimony revealed plaintiff raised the issue of college contribution as early as No vember 2016 , defendant was involved in the college selection process , and encouraged the parties' son to attend Rutgers, which both parties agreed was the proper choice

. Likewise, we find no error in the judge's allocation of the college expense in prop ortion to the parties' incomes , which c ontrary to defendant's argument, did consider the disparity in the parties' incomes

. However, the judge's decision was based on more. The judge concluded defendant should bear her proportionate share of the college expense because she mis represented many of the children's expenses plaintiff paid for as her own

. Because the evidence proved otherwise, the judge concluded defendant could afford to pay her proportionate share of the college expense. Although we agree w ith d efendant the trial judge mistakenly found defendant misrepresented her year

- to

- date 2018 income as her total yea rlyA

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- 18T3 14 income, this finding was not the sole basis for assessing defendant's credibility and did not outweigh the MSA language , which committe d the parties to the college expense contribution. Moreover, the finding did not mathematically affect the ultimate decision made by the judge on the college expense issue and defendant does not contest the $71,000 income figure attributed to her

. As

we have previously stated , where there is " surplusage in terms of the decisional result and not essential to support the judgment " it does not constitute harmless

error . Roe v. Roe , 253 N.J. Super. 418, 431 (App. Div. 1992); R. 2:10

- 2

. B. Defendant challen ges the child support determination , claiming the judge used incorrect figures for work

- related childcare expenses, inaccurately recounted the parties' conversations regarding tutors and the college selection
process , improperly concluded defendant ' s CIS m isrepresented the children's needs , and credited plaintiff with fifty overnights , where there was no such testimony adduced at trial

. Defendant further argues the trial judge erred in reducing child support and should have awarded child support above the guidelines because she did not account for plaintiff ' s " good fortune, " and instead reduced child support without plaintiff showing a substantial change in circumstances. Defendant also asserts plaintiff failed to include his current CIS or any prior CIS w ith his motion , and therefore did not demonstrate aA

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- 18T3 15 change in circumstances to modify child support. On the other hand , defendant argues the termination of alimony demonstrated a change in circumstance warranting an increase in child support.
A " child's a ttendance at college is a circumstance warranting review of the child support amount. " Jacoby , 427 N.J. Super. at 113. "' The g uidelines are not applicable when determining the parental obligation for child support of unemancipated college students[,] ' an d instead, the child support amount is to be set ' in light of all the financial circumstances of the parties and children. '" Id. at 120 (alterations in original) (quoting Raynor v. Raynor , 319
N.J. Super. 591, 614 (App. Div. 1999) ). If the parties ' incom e exceeds the maximum under the guidelines, the trial court has discretion in the methodology it " employ[s] in arriving at a child support award " with the goal of calculating an award " in the best interest of the child after giving due consideration to the [N.J.S.A. 2A:34

- 23(a)] statutory factors and the guidelines. " Caplan v. Caplan , 182 N.J. 250, 272 (2005). At the outset, we note the MSA specifically provided for a review of child support once the parties ' son graduated from high school , and consider ing

" the parties ' respective contribution to post

- secondary education, the parties ' respective incomes, and the Child Support Guidelines .

. . . " Even without this language, the son 's resid ence at college represented a change in circumstance.A

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- 18T3 16 I t was als o reasonable for the judge to conclude plaintiff demonstrated changed circumstances based on the parties' incomes. The evidence and testimony revealed plaintiff ' s income decreased ten percent from the $500,000 figure in the MSA and defendant ' s income incr eased fifty

- eight percent from the $45,000 set forth in the MSA to a projected $71,500. Furthermore, the trial judge analyzed each N.J.S.A. 2A:34

- 23(a) factor in detail, considered plaintiff ' s income in excess of the guidelines, and concluded there was n o basis to award support beyond the guidelines because plaintiff paid for many of the above

- guideline expenses , " some of which are
substantial , " without a contribution from defendant. Moreover, the judge did not substantially reduce the child support paya ble to defendant , finding a reduction unwarranted due to the disparity in the parties' incomes , the proximity of the son's college residence to defendant's home , and the likelihood of concomitant expenses borne by defendant as a result of his ability
to re turn home. The judge fulfilled her obligation to consider the children's best interests, statutory factors , and the guidelines under Caplan

. The judge did not err by crediting plaintiff with fifty

- two overnights in the child support calculation. Altho ugh plaintiff testified there was " no set [parenting time] schedule " he testified the children spent an average of "one night over weekends" and lived with him during school breaks and the summerA

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- 18T3 17 and commute d with him to internships he had arranged for the m. This evidence outweighed defendant's testimony that the children spent only one night per month with plaintiff. We discern no abuse of discretion

. We also find no abuse of discretion because the judge did not increase child support to account for th e termination of alimony. The trial judge rejected this argument because defendant's budget showed she lived above her

means, f ailed return to work during the time she was receiving substantial sums of alimony and did not save despite plaintiff paying sub stantial expenses for the children. This and the remaining arguments we have not addressed relating to child support , lack sufficient merit to warrant discussion in a written opinion. R. 2:11

- 3(e)(1)(E)

. C. Defendant challenges the $10,000 counsel fee a ward to plaintiff , assert ing the judge did not conduct an analysis of his counsel ' s affidavit of services or the reasonableness of the fees. She argues her inability to pay her own fees and plaintiff ' s superior financial position require reversal. We dis agree. Typically , " the party requesting the fee award must 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 mustA

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- 18T3 18 have acted in good fai th in the litigation. " J.E.V. v. K.V. , 426 N.J. Super. 475, 493 (App. Div. 2012) (citing Guglielmo v. Guglielmo , 253 N.J. S uper. 531,
545 (App. Div. 1992)). However, "' where one party acts in bad faith, the relative economic position of the parties has l ittle relevance ' because the purpose of the award is to protect the innocent party from unnecessary costs and to punish the guilty party. " Yueh , 329 N.J. Super. at 461 (quoting Kelly v. Kelly , 262 N.J. Super. 303, 307 (1992)). See also J.E.V. , 426 N.J. S uper. at 493 (quoting Kelly , 262 N.J. Super. at 307 ) ( " fees may be used to prevent a maliciously motivated party from inflicting economic damage on an opposing party by forcing expenditures for counsel fees.") The trial judge performed a detailed analys is of the Rule 5:3

- 5(c) factors and concluded they preponderated in plaintiff's favor. The judge awarded fees

" based on [d]efendant ' s lack of credibility [and] explicit acknowledgement of her obligation to contribute to [the son] ' s higher education costs in the MSA, yet her unwillingness to contribute any funds toward the cost when the time came to do so, and [d]efendant's bad faith. " The judge characterized defendant's position on college and child support as "misleading" and "deceitful." The substantia l credible evidence in the record supports these findings.A

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- 18T3 19 Contrary to defendant's argument, the judge considered the parties' income disparity, noting " [d]efendant has the ability to pay her own counsel fees but has less ability to pay [p]laintiff ' s. " Ho wever, the judge also found
defendant " could have accumulated more assets and increased her salary if she returned to work as agreed to instead of waiting until 2017 to obtain employment. " Under these circumstances, the award of twenty

- five percent of pla intiff's fees was reasonable and not an abuse of discretion.
II. Defendant challenges the April 2019 order on grounds it lacked proper findings of fact and conclusions of law pursuant to Rule 1:7

- 4(a). She asserts plaintiff ' s lack of immediate need for r epayment and the fact reimbursement of defendant's share of the college contribution equals nineteen percent of her net monthly income require s we rever se the court

- imposed re payment schedule.
Enforcement and collection of support arrears is left to the sound discretion of the court. In re Rogiers , 396 N.J. Super. 317, 327 (App. Div. 2007). T he trial court 's obligation is to consider an obligor's ability to pay.
See Crespo v. Crespo , 395 N.J. Super. 190, 195 (App. Div. 2007) (holding
collection of arr ears may be suspended until " such time as defendant has the ability to pay the arrears from income or assets, actual or imputed

. . . . " ).A

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- 18T3 20 Here, t he trial judge reviewed defendant ' s financial circumstances and ordered a reimbursement of tuition in the am ount of $200 per month, allowing

a grace period of slightly more than a month before the re payment

commence d

. This did not constitute an abuse of discretion. 2
III. Finally , because we affirm the trial judge in all respects, defendant's request to reman d to a different trial judge is moot

. Affirmed.

2 Similarly, although the April 2019 order did not provide a repayment amount for the counsel fee award, the trial judge on an application by either party can address the matt er, considering defendant's other court

- ordered obligation.