SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3385-19

NINA GAMBARDELLA

(f/k/a HERMO),

Plaintiff-Respondent,

v.

SCOTT HERMO,

Defendant-Appellant.

_______________________

Submitted May 24, 2021 – Decided September 9, 2021

Before Judges Gooden Brown and DeAlmeida.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Essex County, Docket 

No. FM-07-1973-06.

Scott Hermo, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

In this one-sided appeal, defendant Scott Hermo appeals from four orders 

of the Family Part resolving matrimonial post-judgment motions: (1) the 

NOT FOR PUBLICATION WITHOUT THE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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September 13, 2019 order denying his motion for reconsideration of a prior order 

that denied his motion to modify his alimony and child support obligations to 

plaintiff Nina Gambardella; (2) the January 22, 2020 order denying his motion 

for reconsideration of the September 13, 2019 order; (3) the March 17, 2020 

order amending the January 22, 2020 order and, in effect, denying his motion 

for reconsideration of the prior orders; and (4) the March 18, 2020 order

awarding Gambardella attorney's fees and costs. We affirm all orders under 

appeal, with the exception of the provisions of the September 13, 2019, January 

22, 2020, and March 17, 2020 orders concerning Hermo's child support 

obligation and arrears. We vacate those provisions of the September 13, 2019, 

January 22, 2020, and March 17, 2020 orders and remand for further 

proceedings.

I.

Hermo and Gambardella were married in May 1993. They had three 

children during the marriage. The couple divorced in January 2007. At the time 

of their divorce, the parties entered into a Matrimonial Settlement Agreement

(MSA) in which Hermo agreed to pay Gambardella $15,500 per month in 

alimony and $5,500 per month in child support for the three children, who were 

then minors.
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Prior to and during most of the marriage, Hermo worked as a fixed income 

bond trader, with a specialization in government-sponsored enterprise debt. 

Following the events of September 11, 2001, Hermo lost his job as a bond trader 

and began working as an inter-dealer broker. In 2003, he was appointed 

manager of a brokerage desk, overseeing eighteen employees. In that position, 

he earned a substantial six-figure annual income, at one point approaching $1

million, that included a $150,000 salary, and a percentage of the commissions

he and the other employees in his division generated. The MSA was based on 

the assumption Hermo would earn approximately $777,700 annually.

In 2007, Hermo's business began to decline, resulting in a reduction of the 

work force he supervised. By 2015, he was the only employee in his division. 

As a result, Hermo's income was reduced to approximately $120,000 a year.

In light of these developments, on July 28, 2015, the parties amended their 

MSA to reduce Hermo's alimony obligation to $5,500 per month and his child 

support obligation to $1,408 per month "for the parties' [three] children." At 

about this time, Hermo approached his employer to negotiate the end of his 

employment. In October 2015, Hermo accepted a severance package of 

$100,000 and one year of health insurance for him and the children. Hermo 

signed a four-year agreement not to compete with his prior employer.
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After conducting research and formulating a business plan, Hermo 

decided to open a restaurant in Montclair. In March 2016, he leased commercial 

space and invested in renovations. Hermo opened the restaurant in January 

2017. He did not look for other employment. While operating the restaurant, 

Hermo fell into arrears on his alimony and child support payments, first by 

unilaterally reducing the monthly payments he made to Gambardella and later 

by ceasing all payments.

Gambardella moved in the Family Part to enforce Hermo's alimony and 

child support obligations, to compel him to make payments through the 

Probation Department, and for the award of attorney's fees and costs. Hermo 

cross-moved for modification of his alimony and child support obligations, 

arguing changed circumstances justified a reduction. In his moving papers, 

Hermo argued he was entitled to relief pursuant to N.J.S.A. 2A:34-23(k), as a

non-self-employed person who lost his job and because he had, in effect, retired

from the financial industry.

At the time, two of the children had been emancipated. The youngest was 

enrolled in college. The parties disagreed with respect to whether a modification 

of child support for that child was warranted, as his place of residence when not 

at college was in dispute.
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On October 12, 2018, the trial court issued an oral opinion granting 

Gambardella's motion and denying Hermo's cross-motion. The court concluded 

that Hermo had not established a change in circumstances since 2015, when the 

parties executed the amended MSA. Instead, the court found that Hermo left his 

employment and launched a risky entrepreneurial endeavor while aware of his 

financial obligations to Gambardella. The court concluded Hermo's decision to 

start a new business in a field in which he had no experience did not constitute

a change in circumstances. In addition, the court rejected the argument that 

Hermo had retired, finding instead he voluntarily changed fields, precluding 

modification of the amended MSA on that basis. The court denied 

Gambardella's motion for attorney's fees, but granted her request that Hermo be 

compelled to make payments through the Probation Department.

A November 16, 2018 order memorializes the trial court's decision. The 

order states that Hermo's "request for a modification of alimony be, and hereby 

is, denied[,]" but does not address his request to modify his child support 

obligation. However, the paragraph of the order granting Gambardella's motion 

to compel Hermo to make payments through the Probation Department states:

Plaintiff's request for alimony and child support to be 

paid through the Essex County Probation Department is 

granted. Defendant's alimony obligation is $5,500 per 

month and his child support obligation is $1,408 per 
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month. Child support shall terminate when the parties' 

[youngest] child . . . reaches age twenty-three . . . unless 

terminated earlier by [c]ourt [o]rder.

The order also sets the amount of Hermo's arrears.

By December 2018, Hermo's restaurant had closed. Hermo thereafter 

obtained a license to sell life and health insurance. This allowed him to be 

employed as a financial advisor and salesman of life insurance products, 

annuities, and financial securities, activity not covered by the non-compete 

agreement. An expert retained by Hermo opined that he had the capacity to 

make between approximately $100,000 and $140,000 annually in his new field.

Hermo failed to make the payments directed in the November 16, 2018 

order. He filed a second motion to modify his alimony and child support 

obligations, alleging changed circumstances – the restaurant's closure and likely 

liquidation, among other alleged changes – warranted modification of his 

financial obligations to Gambardella.

On September 13, 2019, the trial court issued an oral decision denying 

Hermo's motion, concluding that he failed to make a prima facie showing of a 

change in circumstances and that he essentially was moving for reconsideration 

of the November 16, 2018 order. The court found that Hermo voluntarily 

decided to leave employment in the field in which he had experience, signed a 
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non-compete agreement limiting his ability to earn income in that field from 

other employers, and invested nearly $500,000 of his savings in a risky business 

venture instead of providing for his financial obligations to Gambardella. The 

court concluded that while Hermo's unilateral decisions had negative financial 

consequences they did not amount to changed circumstances warranting 

modification of the amended MSA.

A September 13, 2019 order memorializes the court's decision. In 

addition, the court granted Gambardella attorney's fees and costs, pending 

submission of a certification of services from her counsel.

Hermo moved for reconsideration of the September 13, 2019 order. He 

alleged that after the court issued the order his counsel discovered that the

amendment to the MSA was based on Hermo's 2014 income of $207,713 and 

not, as counsel and the court had previously assumed, his 2015 income of 

approximately $120,000. Thus, he argued, there was a change of circumstances

– a reduction in his income – since execution of the amended MSA warranting 

modification of his alimony and child support obligations. Defendant's 

argument is based on a December 2014 letter from his then-counsel to 

Gambardella's counsel setting forth reasons why Hermo was entitled to a 

reduction of his financial obligations as established in the MSA.
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In addition, Hermo argued that the monthly child support obligation of 

$1,408 established in the amended MSA was based on three children, but the 

couple's two older children had been emancipated since the amended MSA was 

executed. He also argued the couple's youngest child lived with him, and not 

Gambardella, when the child was not away at college. Gambardella opposed the 

motion and requested the award of attorney's fees and costs.

On January 22, 2020, the trial court issued an oral opinion denying

Hermo's motion. The court found the December 2014 letter was not newly 

discovered evidence, had been submitted by Hermo in support of his first motion 

for a modification, and was not relevant, given that Hermo agreed to the alimony 

and child support payments in the amended MSA.

With respect to child support, the court denied Hermo's motion without 

prejudice to either party producing evidence establishing whether the monthly 

$1,408 child support payment in the November 16, 2018 order was intended to 

cover only the couple's youngest child. The court reserved decision on 

Gambardella's motion for attorney's fees and costs. Finally, the court denied 

Hermo's motion for a stay pending appeal, finding he did not meet the standards 

set forth in Crowe v. De Gioia, 90 N.J. 126 (1982), for injunctive relief. A 

January 22, 2020 order memorializes the court's decisions.
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Hermo subsequently requested the court revisit the provisions of the 

January 22, 2020 order concerning child support. He pointed out that the 

amended MSA provided that Hermo's $1,408 child support obligation was for 

all three of the couple's children and that, since 2015, two of those children had 

been emancipated. He argued that the child support payment should be modified 

to reflect reductions on the dates that the two older children were emancipated.

On March 17, 2020, the trial court issued written findings of fact and 

conclusions of law denying Hermo's request. The court found that when the trial 

court decided Hermo's first motion it was aware two of the children had been 

emancipated. Yet, the court entered the November 16, 2018 order setting 

Hermo's monthly child support obligation at $1,408 until the emancipation of 

the couple's youngest child. The court concluded the emancipation of the other 

children had been considered previously and found not to be a change in 

circumstances warranting reduction of Hermo's child support obligation. A 

March 17, 2020 order memorializes the court's decision.

On March 18, 2020, the court issued written findings of fact and 

conclusions of law granting Gambardella $5,856 in attorney's fees and costs. A 

March 18, 2020 order memorializes the court's decision.
10 A-3385-19

This appeal followed. Hermo raises the following arguments for our 

consideration.

POINT I

THE TRIAL COURT ERRED BY FAILING TO 

MODIFY ALIMONY BASED ON THE FACT THAT 

THE 2015 AMENDMENT WAS BASED ON MY 2014 

YEAR-END INCOME OF APPROXIMATELY 

$208,000 NOT MY 2015 INCOME OF 

APPROXIMATELY $120,000.

POINT II

THE COURT ERRED BY FAILING TO MODIFY 

CHILD SUPPORT BASED ON THE JANUARY 2015 

AGREEMENT AND THE UNDISPUTED 

EMANCIPATION OF [TWO] OF MY [THREE] 

CHILDREN AS CONCEDED BY PLAINTIFF'S 

COUNSEL. THE COURT ALSO IGNORED THE 

FACT THAT OUR YOUNGEST CHILD HAS LIVED 

WITH ME EXCLUSIVELY DURING HOLIDAY'S

[SIC] AND SUMMER BREAKS SINCE MAY OF 

2019.

POINT III

THE COURT[']S AWARD OF COUNSEL FEES TO 

MY EX-WIFE SHOULD BE REVERSED UPON 

FINDING MERIT WITH THE PROCEEDING [SIC]

PERCEIVED ERRORS.

II.

Our review of Family Part orders is limited. Cesare v. Cesare, 154 N.J. 

394, 411 (1998). "[W]e do not overturn those determinations unless the court 
11 A-3385-19

abused its discretion, failed to consider controlling legal principles or made 

findings inconsistent with or unsupported by competent evidence." Storey v. 

Storey, 373 N.J. Super. 464, 479 (App. Div. 2004). We must accord substantial 

deference to the findings of the Family Part due to that court's "special 

jurisdiction and expertise in family matters . . . ." Cesare, 154 N.J. at 413.

We defer to the judge's factual determinations, so long as they are 

supported by substantial credible evidence in the record. Rova Farms Resort, 

Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). This court's 

"[a]ppellate review does not consist of weighing evidence anew and making 

independent factual findings; rather, [this court's] function is to determine 

whether there is adequate evidence to support the judgment rendered at trial." 

Cannuscio v. Claridge Hotel & Casino, 319 N.J. Super. 342, 347 (App. Div. 

1999) (citing State v. Johnson, 42 N.J. 146, 161 (1964)). We review de novo 

the court's legal conclusions. See Manalapan Realty, L.P. v. Twp. Comm. of the 

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

The trial court is "authorized to modify alimony and support orders 'as the 

circumstances of the parties and the nature of the case' require." Halliwell v. 

Halliwell, 326 N.J. Super. 442, 448 (App. Div. 1999) (quoting N.J.S.A. 2A:34-

23). A party seeking a modification of his alimony and child support obligations 
12 A-3385-19

must demonstrate changed circumstances "as would warrant relief." Lepis v. 

Lepis, 83 N.J. 139, 157 (1980). The obligor's ability to pay is a central 

consideration when determining if relief is warranted. Miller v. Miller, 160 N.J. 

408, 420 (1999).

Additionally, settlement of matrimonial disputes is encouraged and highly 

valued. Quinn v. Quinn, 225 N.J. 34, 44 (2016) (citing Konzelman v. 

Konzelman, 158 N.J. 185, 193 (1999)). Settlement agreements are governed by 

basic contract principles and, as such, courts should discern and implement the 

parties' intent. J.B. v. W.B., 215 N.J. 305, 326 (2013); Pacifico v. Pacifico, 190 

N.J. 258, 266 (2007). We are hesitant to modify an agreement when the alleged 

changed circumstances will upset the expectations of the parties. J.B. v. W.B., 

215 N.J. 305, 327 (2013). We review the trial court's modification decision for 

an abuse of discretion. Costa v. Costa, 440 N.J. Super. 1, 4 (App. Div. 2015).

We have carefully reviewed the record in light of these legal principles 

and find no basis to disturb the trial court's conclusion that Hermo did not 

establish changed circumstances after execution of the amended MSA related to 

his failed business venture and income. When he signed the amended MSA, 

Hermo was fully aware of the changes to the financial industry and the 

concomitant reductions in his income and earning potential. At that time, 
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Gambardella agreed to a significant reduction of Hermo's financial obligations

to her.

Hermo almost immediately thereafter left his employment, agreed not to 

compete for the next four years in the field in which he was experienced, and 

invested almost $500,000 of his savings and, apparently, the full measure of his 

time and efforts, to the risky proposition of opening a new restaurant – a field 

in which he had no experience. The financial consequences of those unilateral 

actions fall on Hermo and, as the trial court found, do not constitute changed 

circumstances warranting modification of his obligations under the amended 

MSA. See Storey, 373 N.J. Super. at 469 ("When an alimony obligor changes 

career, the obligor is not free to disregard the pre-existing duty to provide 

support.").

We also conclude the record supports the trial court's conclusions that 

Hermo was not entitled to reconsideration of any of its orders. Rule 4:49-2 

provides:

Except as otherwise provided by R. 1:13-1 (clerical 

errors) a motion for rehearing or reconsideration 

seeking to alter or amend a judgment or order shall . . . 

state with specificity the basis on which it is made, 

including a statement of the matters or controlling 

decisions which counsel believes the court has 

overlooked or as to which it has erred, and shall have 

annexed thereto a copy of the judgment or order sought 
14 A-3385-19

to be reconsidered and a copy of the court’s 

corresponding written opinion, if any.

"A motion for reconsideration . . . is a matter left to the trial court's sound 

discretion." Lee v. Brown, 232 N.J. 114, 126 (2018) (quoting Guido v. Duane 

Morris, LLP, 202 N.J. 79, 87 (2010)); see also Cummings v. Bahr, 295 N.J. 

Super. 374, 389 (App. Div. 1996). A party may move for reconsideration of a 

court's decision pursuant to Rule 4:49-2, on the grounds that (1) the court based 

its decision on "a palpably incorrect or irrational basis," (2) the court either 

failed to consider or "appreciate the significance of probative, competent 

evidence," or (3) the moving party is presenting "new or additional information 

. . . which it could not have provided on the first application." Cummings, 295 

N.J. Super. at 384 (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401-02 (Ch. 

Div. 1990)). The moving party must "initially demonstrate that the [c]ourt acted

in an arbitrary, capricious, or unreasonable manner, before the [c]ourt should 

engage in the actual reconsideration process." D'Atria, 242 N.J. Super. at 401. 

A motion for reconsideration is not an opportunity to "expand the record and 

reargue a motion. [It] is designed to seek review of an order based on the 

evidence before the court on the initial motion, . . . not to serve as a vehicle to 

introduce new evidence in order to cure an inadequacy in the motion record." 
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Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. 

Div. 2008).

Hermo did not meet the requirements of Rule 4:42-9. His moving papers 

merely repeated his prior arguments and relied on alleged newly discovered 

evidence that was, in fact, previously submitted and considered by the court. In 

addition, the 2014 letter, which set out arguments of Hermo's counsel, was not 

relevant, given that the amended MSA, to which Hermo agreed, establishes 

unambiguous terms for his monthly payments to Gambardella.

While we agree Hermo did not establish changed circumstances based on 

changes in his income and earning potential, we are unable to determine from 

the record before us whether the trial court erred when it denied his motion to 

modify his child support obligation based on the emancipation of his two older 

children. The record does not reveal whether the trial court found the $1,408 

monthly child support obligation established in the amended MSA was intended 

to be reduced over time as the three children were emancipated. If such a finding 

was made, the trial court failed to issue findings of fact and conclusions of law 

explaining its modification of the amended MSA to require a payment of $1,408 

for the youngest child alone in the November 16, 2018 order. That provision of 

the November 16, 2018 order was, in effect, incorporated in the later-issued 
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orders under appeal, and formed the basis of the court's March 17, 2020 decision 

to deny modification of Hermo's child support obligation to account for the 

emancipation of his two older children. In addition, the court did not issue 

findings of fact or conclusions of law with respect to Hermo's allegation that the 

youngest child lived at Hermo's residence when not away at college.

Pursuant to Rule 1:7-4(a), "[t]he court 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]n articulation of reasons is essential to the 

fair resolution of a case." Schwarz v. Schwarz, 328 N.J. Super. 275, 282 (App. 

Div. 2000). Effective appellate review of a trial court's decision requires 

examination of the findings of fact and conclusions of law on which the trial 

court relied. Raspantini v. Arocho, 364 N.J. Super. 528, 533 (App. Div. 2003).

Additionally, the record is muddied by the fact that after the court issued 

its oral decision, and prior to entry of the November 16, 2018 order,

Gambardella's counsel submitted a letter setting out the calculation of the 

amount of child support she alleged was in arrears. The calculation included 

reductions in Hermo's child support payments upon the emancipation of each of 

the couple's two older children. In addition, the letter concludes with the 
17 A-3385-19

representation that Gambardella "respectfully submits that the appropriate 

prospective child support for [the youngest child] should be $470.00 per month." 

Although the trial court adopted the total arrears set forth in the letter (with a 

minor adjustment) in its November 16, 2018 order, the court also set Hermo's 

prospective child support obligation at $1,408 a month. This inconsistency in

the court's order is unexplained.

In its March 17, 2020 written opinion, the trial court, in effect, adopts the

provision of the November 16, 2018 order establishing Hermo's prospective 

child support obligation at $1,408, concluding the court was aware of the 

emancipation of the two older children when it issued that order. The court did 

not address the inconsistencies in the November 16, 2018 order explained above.

Hermo did not appeal the November 16, 2018 order. We, therefore, do 

not vacate its provisions addressing his prospective child support obligations

and the amount of arrears. However, to the extent that the trial court considered 

Hermo to have moved for reconsideration of the November 16, 2018 order in 

his subsequent motions, we vacate the provisions of the September 13, 2019, 

January 22, 2020, and March 17, 2020 orders that have the effect of continuing 

Hermo's monthly child support obligation at $1,408 and setting his child support 

arrears. We do so because those provisions are based on the November 16, 2018 
18 A-3385-19

order, which was issued without findings of fact and conclusions of law 

explaining how the court determined to, in effect, modify the amended MSA to 

require Hermo to pay $1,408 a month in child support for only his youngest 

child.

We remand the matter for the trial court to reconsider Hermo's motion for 

modification of his child support obligation to account for the emancipation of 

his two older children. Hermo's position, as we understand it, is based on the 

argument that the $1,408 monthly child support obligation established in the

amended MSA was intended to cover the couple's three children and was to be 

reduced upon the emancipations of the older children, either under the amended 

MSA or as changed circumstances. If the court determines that Hermo was 

entitled to a reduction of his child support obligation when his older children 

were emancipated, the court shall reduce Hermo's child support obligation, 

recalculate the amount of his arrears, and provide any other relief it deems 

appropriate. The trial court shall also consider Hermo's argument that he is 

entitled to a reduction in his child support obligation because his youngest child 

lives at Hermo's residence when not away at college.

With respect to Hermo's appeal of the March 18, 2020 order, an award of 

attorney's fees and costs is discretionary. R. 5:3-5(c); R. 4:42-9(a)(1). We will 
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disturb a trial court's order awarding attorney's fees only for an abuse of 

discretion. Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2018) (citing 

Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). "[I]n awarding counsel fees, the 

court must consider whether the party requesting the fees is in financial need; 

whether the party against whom the fees are sought has the ability to pay; the 

good or bad faith of either party in pursuing or defending the action; the nature 

and extent of the services rendered; and the reasonableness of the fees." Mani 

v. Mani, 183 N.J. 70, 94-95 (2005) (citing Williams v. Williams, 59 N.J. 229, 

233 (1971)).

Our review of the trial court's written decision awarding Gambardella 

attorney's fees and costs reveals a thorough and well-reasoned determination by 

the trial court. The fees and costs awarded are reasonable and reflect the success 

achieved by Gambardella, even when considering our decision to vacate the 

child support provisions of the trial court's orders. Gambardella succeeded on 

Hermo's motions to reduce his alimony obligations, to reduce all of his financial 

obligations because of his career choices and for a stay. She also succeeded in 

having the court compel Hermo to make payments through the Probation 

Department. We, therefore, affirm the March 18, 2020 order. 
20 A-3385-19

To the extent we have not specifically addressed any of Hermo's 

remaining claims, we conclude they lack sufficient merit to warrant discussion 

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

The orders under appeal are affirmed, with the exception of their 

provisions concerning child support and arrears, which we vacate. We remand 

this matter for further proceedings consistent with this opinion. We do not retain 

jurisdiction.