SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0472-17T1

ELIZABETH SOWELL-ZAK, 

Plaintiff-Appellant,

v. 

GARY ZAK, 

Defendant-Respondent.

___________________________

Argued March 6, 2019 – Decided April 8, 2019

Before Judges Fuentes, Vernoia and Moynihan. 

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Monmouth County, 

Docket No. FM-13-1164-09.

Elliot S. Solop argued the cause for appellant (Dwyer, 

Bachman & Newman, LLC, attorneys; Elliot S. Solop, 

on the briefs).

Ciro A. Spina argued the cause for respondent (Law 

Offices of Jef Henninger, attorneys; Jef D. Henninger, 

on the 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NOT FOR PUBLICATION WITHOUT THE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.
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Plaintiff Elizabeth Sowell-Zak appeals from an August 17, 2017 Family 

Part order denying her motion for reconsideration of the court's April 13, 2017 

order that, in pertinent part, terminated her ex-husband, defendant Gary Zak's, 

alimony obligation, denied plaintiff's request for $5000 in counsel fees under

the parties' 2009 Property Settlement Agreement (PSA), and denied plaintiff's 

claim for $19,898 plus interest for defendant's alleged failure to pay the 

remainder of an amount due to plaintiff for her share of the agreed upon 

equitable distribution of marital assets. We affirm.

I.

Married in 1982, the parties divorced in November 2009. The final 

judgment of divorce incorporated the PSA, which included February 2009 and 

October 2009 amendments.

In pertinent part, the PSA required that defendant pay plaintiff $7600 per 

month in alimony. The PSA provided that defendant's alimony obligation 

"terminate[d] only in the event of one of the following events: (a) the death of 

either party; (b) the remarriage of [plaintiff]; (c) [plaintiff] entering into a Civil 
3

A-0472-17T1

Union or Domestic Partnership." The PSA also required that defendant pay 

plaintiff $5000 for her legal fees for the PSA's preparation.

1

Prior to the divorce, defendant had an interest in two companies, Global 

Essence, Inc., and Global Essence UK, Ltd. (jointly Global Essence), that the 

parties agreed to value at $1 million for equitable distribution purposes. Under 

the PSA, defendant agreed to pay plaintiff $270,000 for her waiver of any claim 

to defendant's interest in Global Essence. The sum was to be paid in monthly 

installments, with a final "balloon payment" of $92,898 due by February 2014. 

In 2016, Global Essence terminated defendant's employment after 

"significant disagreements . . . between [Global Essence's controlling 

shareholder] and [defendant led] to tension in the company." Defendant, who 

was sixty-five years old at the time, sued Global Essence and challenged the 

validity of the termination. Defendant's counsel advised the litigation would 

last for two to three years. 

In 2016, after his employment terminated, defendant filed a post-judgment 

motion seeking a temporary suspension of his alimony and other support 

obligations under the PSA, and a plenary hearing to determine if his alimony

 

1

 The PSA also obligates defendant to maintain numerous other types of 

financial support, including child support and paying plaintiff's E-Z Pass bill, 

that are not relevant to this appeal.
4

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"[should] be terminated or otherwise reduced due to . . . defendant's retirement 

and/or loss of income." Defendant filed a case information statement showing 

assets valued at $21,000.

Plaintiff opposed the motion, but did not supply the court with a case 

information statement. She also cross-moved for enforcement2 of defendant's 

obligation to pay the $5000 counsel fee under the PSA, and claimed defendant 

owed a $19,898 balance plus interest on the balloon payment due for his buyout 

of her share of his interest in Global Essence. 

The motion court heard oral argument on April 29, 2016, and in a detailed 

order and written statement of reasons found the termination of defendant's 

employment with Global Essence and reaching a "good faith" retirement age of 

sixty-five constituted prima facie evidence of "changed circumstances"

sufficient to consider his request to modify or terminate his alimony obligation. 

See Lepis v. Lepis, 83 N.J. 139, 146 (1980) (requiring a showing of "changed 

circumstances" to modify or terminate an alimony obligation); see also N.J.S.A. 

2A:34-23(j)(3). 

 

2

 Plaintiff moved to enforce other provisions in the PSA. The court's disposition 

of those portions of the motion is not challenged on appeal. 
5

A-0472-17T1

Based on the record presented at the time, the court also concluded it could 

not determine whether termination or modification of defendant's alimony 

obligation was appropriate because "[t]here [were] genuine and substantial 

issues of material facts" relevant to its consideration of the statutory factors for 

termination or modification of alimony under N.J.S.A. 2A:34-23(j)(3). For 

example, the motion court found it was "unable to adequately 

assess . . . [p]laintiff's ability to adequately save for retirement without 

knowledge of Social Security income or Case Information Statements as 

required by [N.J.S.A. 2A:34-23]," at least in part because plaintiff had not filed 

a case information statement. In addition, the parties argued that the uncertainty 

concerning defendant's litigation with Global Essence and the fact defendant 

anticipated the litigation would last several years required a plenary hearing or 

economic mediation. The parties agreed to engage in mediation to resolve their 

outstanding disputes.

The parties' mediation occurred in October 2016, but was not successful 

on the issue of defendant's alimony obligation. However, several days after the 

mediation concluded, defendant settled his litigation with Global Essence. The 

company agreed to pay defendant one year's severance pay in the amount of

$350,000. Global Essence agreed to buy out defendant's ownership interest for 
6

A-0472-17T1

a sum payable at the rate of $87,000 per year for ten years. Defendant began 

receiving his severance pay in November 2017.

The court scheduled a settlement conference, and the parties submitted 

supplemental certifications asserting facts relevant to their outstanding claims. 

The court heard oral argument on the date of the conference, and subsequently 

entered an April 13, 2017 order and comprehensive statement of reasons 

supporting its decision granting defendant's motion to terminate his alimony 

obligation. The motion court found that, based on the record then before it, "a 

plenary hearing [was] not necessary" because of "the presence of material 

undisputed facts which did not exist at the time of the initial motion," including 

defendant's settlement with Global Essence and his receipt of one year's 

severance pay. The motion court explained that, had such information been 

before it when the original application was made, it "would have affected [the 

court's] decision at the time of original motion." The court noted that a plenary 

hearing is required only where there is a genuine issue of material fact, and the 

parties' initial and supplemental certifications revealed no disputes of fact 

precluding a determination of defendant's motion to modify or terminate his 

alimony obligation.
7

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The motion court analyzed the record presented under N.J.S.A. 2A:34-

23(j)(3), which applies when "a retirement application is filed in cases in which 

there is an existing final alimony [o]rder or enforceable written agreement 

established prior to the effective date of [September 2014]." The statute lists 

eight factors for courts to consider: 

(a) The age and health of the parties at the time of the 

application;

(b) The obligor's field of employment and the generally 

accepted age of retirement for those in that field;

(c) The age when the obligor becomes eligible for 

retirement at the obligor's place of employment, 

including mandatory retirement dates or the dates upon 

which continued employment would no longer increase 

retirement benefits;

(d) The obligor's motives in retiring, including any 

pressures to retire applied by the obligor's employer or 

incentive plans offered by the obligor's employer;

(e) The reasonable expectations of the parties regarding 

retirement during the marriage or civil union and at the 

time of the divorce or dissolution;

(f) The ability of the obligor to maintain support 

payments following retirement, including whether the 

obligor will continue to be employed part-time or work 

reduced hours;

(g) The obligee's level of financial independence and 

the financial impact of the obligor's retirement upon the 

obligee; and
8

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(h) Any other relevant factors affecting the parties'

respective financial positions.

[N.J.S.A. 2A:34-23(j)(3).]

The motion court made findings as to each factor, and concluded 

defendant's alimony obligation under the PSA continued during the one-year 

period he received severance pay from Global Essence. Thus, the court ordered 

that defendant continue to pay alimony during 2017. 

Based on its analysis of the N.J.S.A. 2A:34-23(j)(3) factors, the court 

further determined the undisputed facts presented in the parties' original and 

supplemental certifications, and the "limited testimony" of defendant presented 

during the oral argument, established defendant "met his burden of proof that 

alimony should terminate as he ha[d] reached the retirement age of" sixty-six. 

The court did not consider defendant's receipt of the $87,000 per year defendant 

was to receive from Global Essence because, as part of the equitable distribution 

of property under the PSA, plaintiff had already been paid $270,000 for her 

share of defendant's interest in Global Essence. The court further noted 

defendant paid plaintiff over $600,000 in alimony during the seven years 

following entry of the judgment of divorce, but plaintiff failed to present any 

evidence explaining "why she was unable to save any amount over the years or 

that she was incapable of finding any work." The court explained that defendant 
9

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retired at full retirement age, there is no evidence he will continue any 

employment, his income following his receipt of the one year of severance is 

limited to Social Security benefits and he does not have the financial ability to 

continue to pay alimony. Thus, the court terminated defendant's alimony 

obligation. 

The court also denied plaintiff's request for enforcement of the PSA 

provision requiring that defendant pay $5000 for plaintiff's attorneys' fees, 

finding the claim barred by the doctrine of laches because plaintiff waited seven

years following the 2009 final judgment of divorce to request enforcement of 

the obligation. The court also rejected plaintiff's claim for $19,898 plus interest

based on defendant's alleged failure to make full payment of the balloon 

payment under the PSA. The court found the evidence showed plaintiff 

"accepted payment related to the balloon payment" and plaintiff failed to present 

evidence establishing defendant failed to make full payment of the amount due.

Plaintiff filed a motion for reconsideration. In a detailed order and written 

statement of reasons, the court summarized the standard for reconsideration 

under Rule 4:49-2, see Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 

1996), and rejected plaintiff's request that it reconsider its decision to terminate 

defendant's alimony obligation without an evidentiary hearing. 
10 A-0472-17T1

Plaintiff argued the court applied the incorrect legal standard in assessing 

defendant's modification and termination motion. The court, however, 

explained that it properly applied the factors under N.J.S.A. 2A:34-23(j)(3) 

because defendant sought modification or termination of an alimony obligation 

in a judgment of divorce entered prior to the statute's effective date. See Landers 

v. Landers, 444 N.J. Super. 315, 324-25 (App. Div. 2016) (finding N.J.S.A. 

2A:34-23(j)(3) governs the analysis of motions for modification or termination 

of alimony based on a retirement where the alimony order is established prior to 

the effective date of the statute, September 10, 2014). The court also did not 

reconsider its decision to sua sponte issue the termination order without an 

evidentiary hearing because the record presented when it decided the motion

was devoid of evidence establishing a dispute as to any material facts. 

The court also found no basis to reconsider its denial of plaintiff's request 

for an award of the $5000 counsel fee provided for in the PSA. The court 

reiterated that plaintiff waited seven years to assert the claim and defendant 

certified that he had fully paid the fee but had not maintained records concerning 

the payment. The court explained that it had determined the claim was barred 

by the doctrine of laches because plaintiff waited too long to assert the claim, 

"provide[d] no specific reason for her delay," and it would be inequitable to 
11 A-0472-17T1

compel defendant to make the payment where his ability to prove he previously

made the payment is compromised by plaintiff's delay. 

The court similarly declined to reconsider its decision regarding plaintiff's 

entitlement to the alleged amount due for the balloon payment. The court 

explained that the record showed plaintiff "accepted payment related to the 

balloon payment" and "failed to articulate exactly what she claimed." Thus, the 

court found no basis to reconsider its determination that plaintiff failed to 

present evidence showing defendant did not satisfy his balloon payment 

obligation. 

The court entered an August 17, 2017 order denying plaintiff's 

reconsideration motion. This appeal followed.

Plaintiff presents the following arguments for our consideration:

POINT I

THE LANGUAGE OF THE PARTIES' PROPERTY 

SETTLEMENT AGREEMENT CONTEMPLATES 

THAT ALIMONY WAS TO TERMINATE ONLY IN 

THE EVENT OF DEATH, REMARRIAGE OF THE 

WIFE, OR THE WIFE ENTERING INTO A CIVIL 

UNION OR DOMESTIC PARTNERSHIP

POINT II

THE TRIAL COURT ERRED IN FINDING A 

CHANGE IN CIRCUMSTANCES AS TO THE 
12 A-0472-17T1

DEFENDANT/RESPONDENT'S POST-JUDGMENT 

APPLICATION

POINT III

THE TRIAL COURT ERRED IN ITS APPLICATION 

OF THE AMENDED ALIMONY STATUTE 

DELINEATED UNDER N.J.S.A. 2A:34-23

POINT IV

THE TRIAL COURT ERRED IN FAILING TO

CONDUCT A PLENARY HEARING AS TO THE 

CONSTRUCTION OF THE PARTIES' PROPERTY 

SETTLEMENT AND AS TO 

DEFENDANT/RESPONDENT'S ALIMONY AND 

SUPPORT OBLIGATIONS

POINT V

THE TRIAL COURT MISAPPLIED THE DOCTRINE 

OF LACHES TO OBLIGATIONS SET FORTH IN 

THE PARTIES' PSA

II.

We first observe that plaintiff appeals only the court's August 17, 2017

order denying her reconsideration motion. Her notice of appeal lists only that 

order, and makes no reference to the court's initial April 29, 2016 order or its 

April 13, 2017 order granting defendant's motion to terminate his alimony 

obligation and denying plaintiff's motion to compel payment of the claimed 

$5000 counsel fee and the alleged $19,898 balance on the balloon payment.
13 A-0472-17T1

"[I]t is clear that it is only the judgments or orders or parts thereof 

designated in the notice of appeal which are subject to the appeal process and 

review." Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 461-62 (App. 

Div. 2002) (quoting Pressler & Verniero, Current N.J. Court Rules, cmt. 6 on R.

2:5-1(f)(3)(I) (2002)). However, "[w]e are mindful of the fact that in some cases 

a motion for reconsideration may implicate the substantive issues in the case,"

and "an appeal solely from . . . the denial of reconsideration may be sufficient 

for an appellate review of the merits of the case." Id. at 461. Here, to the extent 

plaintiff's motion for reconsideration was based on the argument that the court's 

rulings were based upon a palpably incorrect or irrational basis, see D'Atria v. 

D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990), the substantive issues 

presented to the court on the parties' original motions and plaintiff's motion for 

reconsideration are sufficiently the same to warrant our review of the merits of 

both, Fusco, 349 N.J. Super. at 462. 

Our scope of review of Family Part orders is limited, as we accord 

deference to the family courts due to their "special jurisdiction and expertise" in 

family law matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998). Therefore, the 

judge's findings are binding so long as its determinations are "supported by 

adequate, substantial, credible evidence." Id. at 412. A "[motion] judge's legal 
14 A-0472-17T1

conclusions, and the application of those conclusions to the facts, are subject to 

our plenary review." Spangenberg v. Kolakowski, 442 N.J. Super. 529, 535 

(App. Div. 2015) (quoting Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 

2013)). 

Plaintiff first argues the motion court erred as a matter of law by 

terminating defendant's alimony because the PSA provided for "permanent 

alimony" and allowed for termination of alimony only upon either party's death 

or plaintiff's remarriage or entry into a domestic partnership or civil union. 

Plaintiff contends the PSA therefore prohibited the termination of alimony based 

on defendant's retirement. Plaintiff did not make the argument prior to the 

court's April 13, 2017 order terminating defendant's alimony obligation.

Instead, she first asserted the argument on her motion for reconsideration. 

Our standard of review on a motion for reconsideration is deferential. 

"Motions for reconsideration are governed by Rule 4:49-2, which provides that 

the decision to grant or deny a motion for reconsideration rests within the sound 

discretion of the trial court." Pitney Bowes Bank, Inc. v. ABC Caging 

Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015). 

Reconsideration "is not appropriate merely because a litigant is 

dissatisfied with a decision of the court or wishes to reargue a motion." Palombi 
15 A-0472-17T1

v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010). "[A] motion for 

reconsideration provides the court, and not the litigant, with an opportunity to 

take a second bite at the apple to correct errors inherent in a prior ruling. "

Medina v. Pitta, 442 N.J. Super. 1, 18 (App. Div. 2015). It "does not provide 

the litigant with an opportunity to raise new legal issues that were not presented 

to the court in the underlying motion." Ibid. Thus, here, the court did not abuse 

its discretion by rejecting plaintiff's argument, raised for the first time on her 

reconsideration motion, that the PSA barred defendant's application for 

modification or termination of his alimony obligation. 

Moreover, plaintiff's claim that the PSA barred defendant's modification 

or termination motion is without merit. It is well-established that modification 

or termination of an alimony obligation is permitted upon a showing of changed 

circumstances which render the agreed upon terms no longer "fair and 

equitable." Lepis, 83 N.J. at 148; see also N.J.S.A. 2A:34-23 (providing that 

alimony orders "may be revised and altered by the court from time to time as 

circumstances may require"). In addition, the PSA does not include an "antiLepis provision" barring modification or termination of defendant's alimony 

obligations as otherwise allowed by law upon a showing of changed 

circumstances. See, e.g., Morris v. Morris, 263 N.J. Super. 237, 240-43 (App. 
16 A-0472-17T1

Div. 1993) (enforcing an "anti-Lepis provision"

3 which expressly barred 

application of the Lepis standard to requests for modifications of alimony 

obligation). Where, as here, the PSA does not include an anti-Lepis provision, 

we discern no basis to bar defendant's entitlement to a modification of his 

alimony obligation upon his showing that due to the termination of his 

employment and retirement at full retirement age, there were changed 

circumstances rendering his alimony obligation neither fair nor equitable. 

Plaintiff next argues the court erred by failing to hold a plenary hearing 

before ordering the termination of defendant's alimony obligation. We are not 

persuaded. 

"A hearing is not required or warranted in every contested proceeding for 

the modification of a judgment or order relating to alimony." Murphy v. 

Murphy, 313 N.J. Super. 575, 580 (App. Div. 1998); see also Lepis, 83 N.J. at 

159 (holding "a party must clearly demonstrate the existence of a genuine issue 

as to a material fact before a hearing is necessary," and explaining that 

"[w]ithout such a standard, courts would be obligated to hold hearings on every 

 

3

In Morris, the parties' property settlement agreement included the following 

language, which we characterized as an "anti-Lepis provision: The parties 

hereby waive their rights for modification based upon changed circumstances as 

set forth in the case of Lepis v. Lepis, 83 N.J. 139 (1980)." Morris, 263 N.J. 

Super. at 240. 
17 A-0472-17T1

modification application"). A plenary hearing should be ordered "only where 

the affidavits show that there is a genuine issue as to a material fact, and that the 

trial judge determines that a plenary hearing would be helpful." Murphy, 313 

N.J. Super. at 580 (quoting Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 

1976)). A material factual dispute is one that "bear[s] directly on the legal 

conclusions required to be made and [such] disputes can only be resolved 

through a plenary hearing." Spangenberg, 442 N.J. Super. at 540-41.

The court has the power "to hear and decide motions . . . exclusively upon 

affidavits." Shaw, 138 N.J. Super. at 440. However, "[i]t is only where the 

affidavits show that there is a genuine issue as to a material fact, and that the 

trial judge determines that a plenary hearing would be helpful in deciding such 

factual issues, that a plenary hearing is required." Ibid. "[W]here the need for 

a plenary hearing is not so obvious, the threshold issue is whether the movant 

has made a prima facie showing that a plenary hearing is necessary." Hand v. 

Hand, 391 N.J. Super. 102, 106 (App. Div. 2007). We review a court's decision

whether a plenary hearing is required for an abuse of discretion. Costa v. Costa, 

440 N.J. Super. 1, 4 (App. Div. 2015).

We discern no abuse of discretion in the court's decision to sua sponte 

decide defendant's motion for modification or termination of his alimony 
18 A-0472-17T1

obligation without a plenary hearing. Based on the court's review of the 

supplemental certifications of the parties following the mediation and 

defendant's settlement of the litigation against Global Essence, it concluded 

there were no disputed facts relevant to its resolution of defendant's motion. 

Plaintiff argues there are disputed fact issues that require a plenary hearing but 

does not identify any competent evidence demonstrating an extant dispute as to 

a material fact. The arguments of counsel in a brief are insufficient to establish 

fact issues requiring a plenary hearing, see, e.g., Celino v. Gen. Accident Ins., 

211 N.J. Super. 538, 544 (App. Div. 1986) ("The function of the brief is a written 

presentation of legal argument. Facts intended to be relied on which do not 

already appear of record and which are not judicially noticeable are required to 

be submitted to the court by way of affidavit or testimony."), and the evidence 

before the court did not reveal any issues of fact essential to the court's 

disposition of defendant's motion. Thus, plaintiff failed to demonstrate that a 

plenary hearing was necessary. See Hand, 391 N.J. Super. at 106 ("[W]here the 

need for a plenary hearing is not . . . obvious, the threshold issue is whether the 

movant has made a prima facie showing that a plenary hearing is necessary."). 

We also find no merit in plaintiff's claim that the court applied the 

incorrect legal standard in determining whether defendant's alimony obligation 
19 A-0472-17T1

should have been modified or terminated due to his retirement. Contrary to 

plaintiff's assertions, the court properly analyzed defendant's motion under 

N.J.S.A. 2A:34-23(j)(3). The statute applies where "a retirement application is 

filed in cases in which there is an existing final alimony order or enforceable 

written agreement established prior to the effective date of [September 10, 

2014]." N.J.S.A. 2A:34-23(j)(3). Those circumstances are present here: the

parties' judgment of divorce, which incorporated the PSA, was entered in 

November 2009. See Landers, 444 N.J. Super. at 323-24 (holding N.J.S.A. 

2A:34-23(j)(3) applies when an alimony obligor retires and moves for 

modification or termination of the alimony obligation established prior to 

September 2014). 

In addition, the court carefully applied N.J.S.A. 2A:34-23(j)(3)'s eight

factors, and its findings appear well supported by the record.4 Contrary to 

 

4

 Plaintiff did not include her case information statement in the record on appeal. 

"A party on appeal is obliged to provide the court with 'such other parts of the 

record . . . as are essential to the proper considerations of the issues.'" Soc'y Hill 

Condo. Ass'n, Inc. v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177 (App. Div. 

2002) (quoting R. 2:6-1(a)(1)(H)), and this court is not "obliged to attempt 

review of an issue when the relevant portions of the record are not included, "

Cmty. Hosp. Grp., Inc. v. Blume Goldfaden Berkowitz Donnelly Fried & Forte, 

PC, 381 N.J. Super. 119, 127 (App. Div. 2005). Our analysis of plaintiff's 

arguments, at least in part, is therefore necessarily confined to our review of the 

court's findings under N.J.S.A. 2A:34-23(j)(3).
20 A-0472-17T1

plaintiff's contention, it was not error for the court to focus on the amount of 

alimony plaintiff received prior to defendant's motion. The statute requires 

consideration of "the ability of the obligee to have saved adequately for 

retirement," N.J.S.A. 2A:34-23(j)(3), as well as "[t]he obligee's level of 

financial independence and the financial impact of the obligor's retirement upon 

the obligee," N.J.S.A. 2A:34-23(j)(3)(g). The court conducted the requisite 

analysis here. 

The court also correctly declined to consider defendant's anticipated 

receipt of payments from Global Essence for his interest in the companies in 

assessing his ability to pay alimony following his retirement. N.J.S.A. 2A:34-

23(j)(4) provides that "assets distributed between the parties at the time of the 

entry of a final order of divorce or dissolution of a civil union shall not be 

considered by the court for purposes of determining the obligor's ability to pay 

alimony following retirement." As part of the equitable distribution of the 

property in the judgment of divorce, plaintiff had been paid for her share of 

defendant's interest in Global Essence, and therefore the court was precluded

from considering defendant's payment for his interest in Global Essence in its 

determination of defendant's ability to pay following his retirement. Ibid.
21 A-0472-17T1

We also find no error in the motion court's application of laches to deny 

plaintiff's claim to $5000 in counsel fees. Laches is an equitable principle that 

bars litigants from asserting claims where their delay in so doing causes the 

answering party to be prejudiced by said delay. See Gladden v. Pub. Emp. Ret. 

Sys. Tr. Bd., 171 N.J. Super. 363, 370-71 (App. Div. 1979). Laches "involves 

more than mere delay, mere lapse of time. There must be delay for a length of 

time which, unexplained and unexcused, is unreasonable under the 

circumstances and has been prejudicial to the other party." Nw. Covenant Med. 

Ctr. v. Fishman, 167 N.J. 123, 140 (2001) (quoting W. Jersey Title & Guar. Co. 

v. Indus. Tr. Co., 27 N.J. 144, 153 (1958)); see also Lavin v. Bd. of Educ. of 

Hackensack, 90 N.J. 145, 152-53 (1982) (discussing the factors courts must 

consider when determining if laches applies). 

Plaintiff failed to assert her claim for the $5000 counsel fee for seven 

years, and defendant certified he paid plaintiff the $5000 but no longer had the 

documentation confirming the payment. Plaintiff offered no explanation for her 

delay in asserting the claim and the record otherwise supports the court's finding 

that defendant was prejudiced by the delay. See Hoff v. Hoff, 157 N.J. Super. 

503, 509 (App. Div. 1978) (holding laches did not apply where movant failed to 
22 A-0472-17T1

show prejudice). We therefore discern no basis to reverse the court's 

determination. 

We also find no error in the court's rejection of plaintiff's claim for 

enforcement of defendant's obligation to make the balloon payment. The record 

before the court supports its finding that plaintiff accepted a final balloon 

payment from defendant, plaintiff did not present evidence disputing that fact, 

and plaintiff did not present competent evidence showing she was entitled to 

additional sums for the balloon payment. The court's determination is 

substantially supported by the record evidence, and we therefore discern no basis 

to disturb it. Gnall v. Gnall, 222 N.J. 414, 428 (2015).

Affirm.