SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1973-19T1

LINDA L. FELTON,

Plaintiff-Appellant,

v.

GARY M. FELTON, 

Defendant-Respondent.

_________________________

Submitted September 21, 2020 – Decided

Before Judges Mayer and Susswein

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Ocean County, Docket 

No. FM-15-0758-16.

Richard R. Mazzei, attorney for appellant.

Respondent did not file a brief.

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

October 1, 2020
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Plaintiff Linda L. Felton appeals from a December 6, 2019 order regarding 

her motion to enforce litigant's rights and a cross-motion by defendant Gary M. 

Felton to enforce litigant's rights. We affirm.

The parties are familiar with the facts as set forth in our decision in Felton 

v. Felton, No. A-4433-17 (App. Div. Aug. 23, 2019) (Felton I). Slip op. at 1-2. 

In Felton I, we vacated and remanded an April 20, 2018 order "for recalculation 

of the amount to which plaintiff [was] entitled" based on defendant's military 

pension. Id. at 1. We concluded "the first step in the process was the calculation 

of defendant's retirement benefit using the military point system, and the second 

step was the application of the Marx [v. Marx, 265 N.J. Super. 418 (Ch. Div. 

1993)] formula to that amount as agreed to by the parties in the [property 

settlement agreement (PSA)]." Id. at 6. We "vacated [the April 20, 2018 order] 

and the matter [was] remanded to the Family Part for further proceedings . . . ." 

Ibid. Nothing in Felton I instructed the judge on remand to apply the 

percentages as sought by plaintiff for distribution of defendant's military 

pension because that determination was left to the judge.

On September 30, 2019, the Family Part judge ordered defendant's 

pension be divided in accordance with Felton I and set a new return date for 

plaintiff's application for attorney's fees. Just ten days later, plaintiff filed a 
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motion seeking the following relief: placing defendant in custody due to his 

continued contempt of court for failure to pay counsel fees in accordance with a 

December 8, 2017 order and an April 20, 2018 order; requiring defendant 

reimburse plaintiff in the amount of $5,772, representing the difference between 

thirty-five percent of his pension and forty-two and one-half percent of his 

pension from the date of the PSA to the present; compelling defendant to pay 

$156 per month, representing the difference between thirty-five percent of his 

pension and forty-two and one-half percent of his pension until plaintiff is paid 

directly by the military; counsel fees in the amount of $3,230 for plaintiff's prior 

motion denied without prejudice on April 20, 2018; and counsel fees associated 

with plaintiff's appeal and additional legal services incurred by plaintiff through 

November 1, 2019. 

In response, defendant filed a cross-motion seeking the following relief: 

denying plaintiff's motion in its entirety; determining any credits due upon 

completion of the amended Court Order Approved for Processing (COAP); 

crediting to defendant any overpayment under the COAP to be applied to any 

arrears; and awarding counsel fees and costs. 

The Family Part judge heard the arguments of counsel on December 6, 

2019 and placed her statement of reasons regarding the motion and cross-motion
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on the record on the same date. The judge denied holding defendant in custody 

for failure to pay counsel fees in accordance with prior court orders. She 

explained such relief required her to hold a separate hearing on defendant's 

ability to pay before defendant could be incarcerated for non-payment. Based 

on the representation of defense counsel at oral argument, the judge ordered 

outstanding counsel fees awarded to plaintiff be paid within fourteen days. In 

the event defendant failed to make the required payment, the judge would 

"consider the imposition of sanctions." 

Regarding the pension distribution, the judge explained:

I think it's clear what the percentages are, but my 

reluctance to order a specific dollar amount is because 

I'm not sure that [c]ounsel or the [c]ourt is going to get 

the math right. I think the more prudent course is 

Pension Appraisers is going to figure out to the penny 

what the amounts are that are owed and what credits are 

due to whomever and at that point payments will be 

maid retroactively, credits, however it is they figure it, 

but my reluctance in ordering a specific sum of money 

to make up the difference is because I think that may 

muck it up worse and I'd rather not do that.

In ruling on plaintiff's application for counsel fees, the judge stated:

[w]e all know the background of this case. There was 

a motion and cross-motion because there was an issue 

as to what the interpretation was of the division of the 

pension. I do not see that issue as being a party in 

default. If you look up the definition of default, it's the 

failure to do something that you're obligated to do and 
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the failure to sign the COAP or [Qualified Domestic 

Relations Order] to me doesn't constitute a default. 

The judge concluded there "was a legitimate dispute . . . [so] the default 

provision in the PSA doesn't apply."

On appeal, plaintiff argues the judge erred in failing "to proceed consistent 

with [Felton I]," which included denying her request for counsel fees. She also 

contends the judge should have scheduled a contempt hearing on defendant's 

non-payment of previously ordered counsel fees. In addition, plaintiff claims 

the judge erred in granting defendant's motion for a credit. We disagree. 

A motion to enforce litigant's rights is the appropriate vehicle to enforce 

a court's prior order. Abbott ex rel. Abbott v. Burke, 206 N.J. 332, 359 (2011). 

"The 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 judge's enforcement of litigant's rights pursuant 

to Rule 1:10–3 under an abuse of discretion standard. See 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. Immigr. &

Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).
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Our review of equitable distribution determinations is narrow. Valentino v.

Valentino, 309 N.J. Super. 334, 339 (App. Div. 1998). We decide only whether the 

trial court "mistakenly exercised its broad authority to divide the parties' property 

and whether the result was 'reached by the trial judge on the evidence, or whether it 

is clearly unfair or unjustly distorted by a misconception of law or findings of fact 

that are contrary to the evidence.'" Id. at 339 (quoting Wadlow v. Wadlow, 200 N.J.

Super. 372, 382 (App. Div. 1985)). "A sharp departure from reasonableness must 

be demonstrated before our intercession can be expected." Wadlow, 200 N.J. Super.

at 382 (quoting Perkins v. Perkins, 159 N.J. Super. 243, 248 (App. Div. 1978)).

A decision regarding an award "of counsel fees is discretionary, and will not 

be reversed except upon a showing of an abuse of discretion." Barr, 418 N.J. Super. 

at 46 (citing Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001)). 

"[F]ee determinations by trial courts will be disturbed only on the rarest of 

occasions, and then only because of a clear abuse of discretion." Packard–

Bamberger & Co., 167 N.J. at 444 (quoting Rendine v. Pantzer 141 N.J. 292,

317 (1995)).

Contrary to plaintiff's arguments, the judge proceeded consistent with our 

decision in Felton I. The parties previously agreed to use an experienced pension 

appraisal firm to calculate the amount of defendant's pension to be paid to plaintiff 
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and any credits or offsets that might be due to either party. In exercising her 

discretion, and seeking to avoid another mathematical miscalculation, the judge 

determined she would await an amended COAP from the parties. An amended 

COAP prepared by the mutually retained appraisal expert should accurately reflect 

the parties' PSA. In the event the parties are unable to agree upon the form of the 

amended COAP, the objecting party should advise the judge. The judge would be 

required to resolve any disputes prior to signing the amended COAP. We discern 

no abuse of discretion in the judge's decision to await an amended COAP prepared 

by the pension appraisal expert consistent with Felton I. 

Further, we are satisfied the judge did not abuse her discretion in denying 

plaintiff's requested counsel fees. The judge determined the parties had a legitimate 

dispute regarding the manner for calculating defendant's military pension and were 

unable to agree on the COAP language. She held the failure to prepare the COAP 

in the form requested by plaintiff was not an event of default triggering the obligation 

to pay counsel fees under the PSA. While defendant's method for the pension 

calculation was deemed incorrect in Felton I, our reversal does not establish the 

parties' dispute regarding the pension calculation was frivolous or meritless to justify 

an award of fees under the PSA. 
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Nor did the judge err in denying plaintiff's application to place defendant in 

custody for failing to pay prior court ordered attorney's fees. The judge properly 

determined such relief required a contempt hearing separate from the motion 

hearing. See R. 1:10-3; see also Schochet v. Schochet, 435 N.J. Super. 542, 549-50 

(App. Div. 2014) (requiring an ability-to-pay hearing prior to incarceration for 

disobedience of a prior court order). 

Affirmed.