SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1957-18T1

ANDREW R. CACCIATORE,

Plaintiff-Respondent,

v.

JAMIE A. CACCIATORE,

n/k/a JAMIE A. WELKIS,

Defendant-Appellant.

___________________________

Submitted May 26, 2020 – Decided July 8, 2020

Before Judges Rothstadt and Mitterhoff.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Bergen County, 

Docket No. FM-02-1075-07.

Jamie A. Cacciatore, appellant pro se.

Dale Carol Krouse, attorney for respondent.

PER CURIAM

In this post-judgment matrimonial matter, defendant Jamie A. 

Cacciatore, n/k/a Jamie A. Welkis, appeals from the motion judge's November 

NOT FOR PUBLICATION WITHOUT THE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.
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2, 2018 order that denied her motion to enforce litigant's rights or, 

alternatively, to modify or vacate a consent order executed between her and 

plaintiff Andrew Cacciatore, which established their respective obligations for 

the post-secondary college expenses of their daughter. The consent order

provided that plaintiff's obligation to pay child support would extinguish upon 

the parties' daughter turning eighteen. In exchange, plaintiff agreed to pay for 

their daughter's college expenses, up to a yearly contribution of $30,000.

On appeal, defendant argues that the judge erred in rejecting her

argument that the consent order should be modified to require defendant to pay 

$120,000, rather than the actual costs incurred by their daughter, who opted to 

attend Bergen County Community College (BCC). Defendant also argues that

the judge erred in granting plaintiff's cross-motion to enforce the consent order 

as written and to compel defendant to pay his counsel fees. We affirm. 

I.

We discern the following facts from the record. On July 4, 1998, 

defendant and plaintiff were married. In 2000, the parties' daughter was born. 

On February 26, 2007, the parties obtained a final judgment of divorce (JOD)

and executed a property settlement agreement (PSA). Section nine of the PSA 

provided that "[b]oth parties acknowledge an obligation to contribute to [their 
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daughter's] post-secondary educational expenses. 'Expenses' shall be defined 

to include but not be limited to tuition, room and board, computer, registration 

fees, student fees, other fees billed directly by the institution, required books, 

supplies and laboratory materials, and transportation expenses." They

stipulated that due to their daughter's young age at the time of the consent 

order, they would determine how to split education expenses at a later date, 

and if they could not agree then, they would resolve the issue in court.

On March 18, 2016, the parties executed a consent order, modifying the 

terms of the PSA that concerned their obligations with respect to child support 

and their daughter's college expenses. Under the terms of the consent order, 

plaintiff agreed to continue paying monthly child support of $1087 until the 

parties' daughter turned eighteen, at which point child support payments would 

permanently cease. Plaintiff agreed that, as part of the consideration for his 

child support obligation ending, he would "be solely responsible for the cost of 

up to four years of [the daughter's] full time, continuous college education of 

tuition, room and board, required fees and books, said college attendance 

commencing in the fall following [the daughter's] graduation from high school, 

with a maximum cap of $30,000 per year."
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The parties agreed that they, together with their daughter, would jointly 

decide where the daughter would attend college, "after discussion and 

consideration of [her] high school academic record, her college academic 

interests and intended major and career plans, if known at the time, and other 

relevant considerations as to [her] best interests, recognizing the $30,000 

maximum contribution per year from . . . plaintiff." The parties also agreed 

that if plaintiff and the parties' daughter could not agree on a college with an 

annual tuition of less than $30,000, and she chose to attend a school with a 

greater annual tuition, the daughter would be personally responsible for any 

excess cost.

Finally, the consent order also stipulated, 

Both parties agree that they have had the opportunity 

to consult with and discuss the terms of this [c]onsent 

[o]rder with independent counsel and to consider the 

terms of this agreement thoroughly and carefully 

before signing it. Both parties acknowledge that they 

are entering into this [c]onsent [a]greement willingly 

and voluntarily, with no coercion or pressure from the 

other or any third party, and both parties believe that 

this agreement is fair and equitable to both of them 

based upon their respective personal and financial 

circumstances . . . however, most importantly, both 

parties agree that this agreement is in [their 

daughter's] best interests. 
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On September 24, 2018, defendant moved to enforce litigant's rights, or,

alternatively, to modify or vacate the March 2016 consent order based on 

changed circumstances, and sought further relief. Specifically, defendant 

requested that the judge require plaintiff to contribute $30,000 per year over 

the course of four years, during which the parties' daughter would be attending 

college; reestablish plaintiff's child support obligation to contribute toward

costs incurred by defendant in caring for their daughter; require plaintiff to 

carry a $500,000 life insurance policy for their daughter's benefit; compel 

plaintiff to provide defendant with certain documents pertaining to his income, 

including tax returns between 2015 and 2017; set a date for a plenary hearing 

on issues concerning child support and expenses; order plaintiff to pay child 

support retroactive to January 1, 2018; and order plaintiff to pay counsel fees 

and costs.

In support of her motion, defendant explained that at the time the parties 

executed the March 2016 consent order, she just had surgery, she was anxious 

and heavily medicated, and she did not have an attorney to explain the nature 

of the agreement. Defendant claimed that under their agreement, plaintiff was 

to pay a fixed amount of $30,000 per year during the time their daughter would 

be attending a four-year college, and he had impermissibly reduced his amount 
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paid per year to around $8000, representing the yearly tuition at BCC where 

their daughter decided to attend school. Defendant claimed that to construe 

the agreement otherwise would not be in their daughter's best interests. 

Defendant alternatively argued that the agreement should be modified 

based on changed circumstances because at the time of the order, the parties 

had anticipated that their daughter would attend the Fashion Institute of 

Technology (FIT), which had a significantly higher yearly tuition than BCC, 

and that she would be living on campus. Instead, she was now commuting and 

living at home while attending college. Defendant argued that their daughter's

choice to attend a community college had reduced plaintiff's financial 

obligations, while defendant's had increased. She also argued that after the 

parties executed the March 2016 consent order, her medical expenses 

increased because their daughter began to suffer from depression, requiring 

defendant to pay for various treatments. She further claimed that plaintiff's 

salary had increased since the parties executed the March 2016 consent order, 

while hers had fluctuated.

In response, plaintiff filed a cross-motion. Plaintiff sought to enforce 

the terms of the consent order as written and requested that the judge deny 

defendant's motion in its entirety. Plaintiff also requested counsel fees from
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defendant, claiming that she filed her motion in bad faith. On October 17, 

2018, defendant, who was up until this point represented by counsel, executed

a substitution of attorney, thereafter proceeding pro se. 

On November 2, 2018, after a motion hearing, Judge Avis BishopThompson found that defendant did not move to vacate the parties' consent 

order within one year of its entry, as required by Rule 4:50-2. She also found

that defendant did not move to reconsider within twenty days of the date the 

order was served upon her, pursuant to Rule 4:49-2. The judge further

concluded that defendant had not satisfied any of the reasons enumerated in 

Rule 4:50-1, regarding relief from judgment or order.

1 Specifically, the judge 

found that there was no evidence supporting defendant's claims that she was 

under the influence of prescription medication when she agreed to the March 

2016 consent order. The judge also found that paragraph seven of the March 

2016 order clearly and unambiguously stipulated that the parties knowingly 

and voluntarily executed the agreement, which they acknowledged was in the 

1

 The judge also found defendant's application was procedurally deficient as 

she failed to submit a brief in support of her motion, and she failed to annex a 

case information statement from when the parties had executed the consent 

order, as required by Rule 5:5-4(a)(4).
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best interests of their daughter, and there was otherwise no indication that the 

agreement was arrived at by coercion, duress, or fraud. 

The judge explained that she was constrained to enforce the agreement 

as written, unless doing so would lead to an absurd result, which was not the 

case here, as the agreement would leave the parties' daughter with minimal 

debt after college, if any, and was in her best interests. The judge concluded 

that the express wording of the agreement only required that plaintiff pay for 

college expenses actually incurred in the four years following the daughter's 

high school graduation, not a blanket amount of $30,000 per year during those

years. 

As to defendant's request that the judge modify the consent order, the 

judge found that defendant had failed to establish a substantial change in 

circumstances. The judge explained that defendant provided no basis for the 

modification, noting that her salary had increased between two-and-a-half to 

three times relative to what she had been making when the parties executed the 

consent order. The judge also denied requests from defendant that plaintiff 

take out a $500,000 life insurance policy and that child support be 

retroactively applied through August 31, 2018, finding that both were outside 

the scope of the parties' consent order.
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Based on these reasons, the judge granted plaintiff's cross-motion to 

enforce the parties' consent order. As to plaintiff's application for counsel fees 

totaling $6713.70, the judge applied the factors enumerated in Rule 5:3-5(c), 

which provides that

the court should consider, in addition to the 

information required to be submitted pursuant to 

[Rule] 4:42-9, 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. 

As to the financial circumstances of the parties, the judge determined that the 

parties were equally situated "and that there appears to be no great disparity of 

income, so that both parties are able to afford their attorney," although the 

judge noted that defendant had appeared pro se.

Regarding the parties' ability to pay their own fees and contribute to the 

other's fees, the judge noted that both parties are able to pay their own fees, 

and she relied on documentation from the Newark Board of Education, which 

showed that defendant was currently making $94,000 and had made slightly 
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more than $96,000 the prior year. The judge determined that defendant filed 

her motion with unclean hands and in bad faith because the parties' consent 

order was unambiguous regarding the parties' financial obligations; thus, the 

judge found that the parties' ability to pay was irrelevant. She likewise found, 

with respect to the reasonableness and good faith of the parties, that 

defendant's failure to timely move to reconsider or vacate the parties' consent 

order rendered her motion unreasonable and brought in bad faith. 

Concerning the extent of fees incurred by the parties, the judge found 

that plaintiff had thus far expended $5726.20 in fees excluding his attorney's 

appearance at the hearing, while the judge recognized that defendant had 

certified that she had paid her attorney $7500, though there was no 

certification of services to corroborate this figure. The judge noted that the 

court had not previously awarded fees to either party, but plaintiff's counsel 

had not yet been paid.

As to the results obtained, the judge considered that she was denying 

defendant's motion in its entirety and granting plaintiff's cross-motion to 

enforce the consent order. The judge concluded that factor eight did not apply, 

and regarding any other factors bearing on the fairness of an award, she

reiterated that the agreement was clear and unambiguous. Thus, after 
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considering these factors and the factors of RPC 1.5(a), the judge ordered that 

defendant pay plaintiff's counsel fees of $6713.70 within sixty days. That 

same day, the judge entered an order denying defendant's motion in its entirety 

and granting plaintiff's cross-motion to enforce the consent order and for 

counsel fees. This appeal ensued.

On appeal, plaintiff raises the following arguments:

I: THE TRIAL COURT ERRED BY DENYING 

DEFENDANT[']S MOTION TO ENFORCE 

LITIGANT[']S RIGHTS ALTERNATIVELY 

MODIFYING THE CONSENT ORDER FROM 

MARCH 19, 2016 FOR LACKING PROCEDURAL 

COMPLIANCE WITH . . . [RULE] 4:49(c), [RULE]

4:49-2, [RULE] 4:4-50(A-F), AND [RULE] 5:5-4. 

II: THE TRIAL COURT FAILED TO APPRECIATE 

THE FACTS AND EVIDENCE TO FIND CHANGED 

CIRCUMSTANCES OF INCOME DISPARITY, 

DAUGHTER'S MENTAL HEALTH ISSUES AND 

DAUGHTER[']S COMMUTING TO COMMUNITY 

COLLEGE, AND UNPAID COLLEGE EXPENSES.

III: THE TRIAL COURT ERRED BY FAILING TO 

ORDER A FACT-FINDING PLENARY HEARING 

TO CONFIRM CHANGED CIRCUMSTANCES, 

BASING ITS DECISION ON ASSUMPTION OF 

PLAINTIFF'S COMPLIANCE WITH THE MARCH 

2016 CONSENT ORDER PURSUANT TO NEW 

JERSEY STATE LAWS.

IV: THE TRIAL COURT . . . ERRED GRANTING 

PLAINTIFF[']S CROSS MOTION TO ENFORCE 

MARCH 2016 CONSENT ORDER PARAGRAPHS 3, 
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4 AND 5, AS A WAIVER OF CHILD SUPPORT BY 

EITHER PARENT VIOLATES PUBLIC POLICY 

AND CHILD SUPPORT IS A LEGAL RIGHT.

V: THE TRIAL COURT . . . ERRED BY FAILING 

TO APPRECIATE THE FACTS, MISAPPLYING 

THE LAW, AND FACT-FINDING 

REQUIREMENTS BY DENYING CHILD SUPPORT 

ARREARS THAT ARE A PRECEDENT IN ALL 

[OF] THE PARTIES['] PSA'S. 

VI: THE TRIAL COURT . . . ABUSED ITS 

DISCRETION IN ITS APPLICATION OF THE 

LAW, THE DOCTRINE OF UNCLEAN HANDS IN 

AWARDING PLAINTIFF[']S COUN[SEL] FEES TO 

DEFENDANT, DENYING DEFENDANT[']S FEES 

TO BE PAID BY . . . PLAINTIFF, AND 

VIOLATING . . . DEFENDANT'S RIGHTS TO DUE 

PROCESS WHEN DEFENDANT WAS DENIED 

THE OPPORTUNITY FOR REBUTTAL OR 

CLOSING STATEMENT PURSUANT TO . . . 

[RULE] 1:7-1. 

We find no merit in defendant's arguments. We affirm substantially for 

the reasons set forth in the judge's thorough and well-reasoned November 2, 

2018 oral decision. We add only the following comments.

II.

Our review of a Family Part judge's factual findings is limited. N.J. Div. 

of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577 (App. Div. 

2010). The judge's findings "are binding on appeal when supported by 

adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-
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12 (1998). We will only reverse if the judge's findings were "so manifestly 

unsupported by or inconsistent with the competent, relevant and reasonably 

credible evidence as to offend the interests of justice." Rova Farms Resort, 

Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. 

Township of North Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)). 

However, we give no deference to the judge's interpretation of the law. N.J. 

Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 

2006). Likewise, we review the enforceability of a contract de novo. Curran 

v. Curran, 453 N.J. Super. 315, 320 (App. Div. 2018). "We owe no deference 

to the interpretative analysis of . . . the trial [judge] . . . except as we may be 

persuaded by . . . [his or her] reasoning[.]" Morgan v. Sanford Brown Inst., 

225 N.J. 289, 303 (2016). 

"[A] proceeding to enforce litigants' rights under Rule 1:10-3 'is 

essentially a civil proceeding to coerce the defendant into compliance with the 

court's order for the benefit of the private litigant.'" Pasqua v. Council, 186 

N.J. 127, 140 (2006) (quoting Essex Cty. Welfare Bd. v. Perkins, 133 N.J. 

Super. 189, 195 (App. Div. 1975)). The purpose of relief afforded under Rule

1:10-3 is "to facilitate the enforcement of the court order." Ridley v. 

Dennison, 298 N.J. Super. 373, 381 (App. Div. 1997).
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[M]atrimonial agreements between spouses relating to 

alimony and support, which are fair and just, fall 

within the category of contracts enforceable in equity. 

Such agreements are essentially consensual and 

voluntary in character and therefore entitled to 

considerable weight with respect to their validity and 

enforceability notwithstanding the fact that such an 

agreement has been incorporated in a judgment of 

divorce. 

[Petersen v. Petersen, 85 N.J. 638, 642 (1981)

(citations omitted).] 

With these governing principles in mind, we agree with the judge's 

decision to enforce the terms of the parties' consent order as written. As the 

judge found, the terms of the order unambiguously established that plaintiff's 

maximum contribution towards the parties' daughter's college expenses would 

be $30,000 but that his expenses could be less, depending on her choice of 

school and other miscellaneous factors.

Further, the express terms of the order evinced that the parties had 

executed the agreement knowingly and voluntarily, and, as noted by the judge, 

there is no contrary evidence indicating that the agreement was the product of 

coercion, duress, or fraud, and the terms of the agreement did not produce an 

absurd result. See Quinn v. Quinn, 225 N.J. 34, 47 (2016) ("A narrow 

exception to the general rule of enforcing settlement agreements as the parties 

intended is the need to reform a settlement agreement due to 
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'unconscionability, fraud, or overreaching in the negotiations of the 

settlement[.]'" (alteration in original) (quoting Miller v. Miller, 160 N.J. 408, 

419 (1999))); Petersen, 85 N.J. at 642.

We also affirm the judge's denial of defendant's request to either vacate 

or reconsider the March 2016 consent order. As the judge correctly found,

defendant's motion, which was filed two-and-a-half years after the March 2016 

order, was untimely as to both vacation and reconsideration. See R. 4:50-2 

("The motion [for relief from judgment or order] shall be made within a 

reasonable time, and for reasons (a), (b) and (c) of [Rule] 4:50-1 not more than 

one year after the judgment, order or proceeding was entered or taken."); R.

4:49-2 ("Except as otherwise provided by [Rule] 1:13-1 (clerical errors) a 

motion for . . . reconsideration seeking to alter or amend a judgment or order 

shall be served not later than [twenty] days after service of the judgment or 

order upon all parties by the party obtaining it. The motion shall state with 

specificity the basis on which it is made[.]"). 

Regardless, we also agree there were no changed circumstances 

warranting modification of the consent order. The order provided that all child 

support ceased upon the parties' daughter reaching the age of eighteen. As 

consideration for that agreement, plaintiff agreed to assume all costs for the 
16 A-1957-18T1

daughter's post-secondary education. Plaintiff has abided by the agreement, 

resulting in the daughter having attended the school of her choice, while 

incurring little or no debt. That the parties' daughter chose to attend BCC 

rather than FIT as the parties had at one point anticipated is not a change in 

circumstances that warrants modifying or vacating the consent order. 

We also reject defendant's argument that the judge erred in awarding 

plaintiff counsel fees. The decision to award counsel fees in a family action 

lies within the discretion of the trial judge. R. 5:3-5(c); Addesa v. Addesa, 392 

N.J. Super. 58, 78 (App. Div. 2007). That determination will be disturbed 

"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)).

Here, we discern no abuse of discretion. The judge carefully considered 

all of the factors set forth in Rule 5:3-5(c), and her finding that defendant's 

application was in bad faith, given the unambiguous terms of the agreement 

and the untimeliness of the application, is sufficiently supported by the record. 

Thus, we find no basis to disturb the fee award.
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To the extent we have not addressed any of the parties' remaining 

arguments, we conclude that they are without sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(1)(E). 

Affirmed.