SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5232-18T3

CATHERINE SCOTT,

Plaintiff-Respondent,

v.

EARNEST SCOTT,

Defendant-Appellant.

_________________________

Submitted November 12, 2020 – Decided

Before Judges Geiger and Mitterhoff.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Atlantic County, 

Docket No. FM-01-0412-14.

King & King, LLC, attorneys for appellant (Sharon A. 

King, on the brief).

Fuhrman & Edelman, attorneys for respondent (Ronald 

B. Edelman, 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NOT FOR PUBLICATION WITHOUT THE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.

December 9, 2020
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In this post-judgment matrimonial matter, defendant Earnest J. Scott 

appeals from a June 21, 2019 Family Part order that: (1) denied his motion to 

vacate the parties' property settlement agreement (PSA); (2) denied his motion 

to reduce or suspend his alimony obligation; and (3) granted plaintiff Catherine 

J. Scott's cross-motion to enter judgment against defendant to enforce his 

arrears. Defendant also appeals from a July 16, 2019 Family Part order that: (1) 

granted plaintiff's motion to satisfy the judgment entered against defendant 

through a Qualified Domestic Relations Order (QDRO) imposed against 

defendant's annuity fund and pension fund; (2) awarded plaintiff attorney's fees 

and costs in the amount of $2252.50, enforceable through a QDRO against 

defendant's annuity fund and pension fund. We affirm. 

We derive the following pertinent facts from the record. The parties were 

married on June 13, 1997 and had two children. Plaintiff filed a complaint for 

divorce from bed and board on November 13, 2013. Prior to filing the

complaint, plaintiff's counsel sent a proposed PSA to defendant in an attempt to 

resolve the matter. Defendant requested a meeting to discuss the proposed PSA. 

The proposed PSA included a $325 per week permanent alimony award 

and $25,000 for plaintiff's share of the equity in the marital home. Defendant 

proposed reducing the alimony to term alimony of $300 per week for fifteen 
3

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years and reducing plaintiff's share of the equity in the marital home to $20,000.

Plaintiff advised she would agree to those changes provided the term alimony 

would be non-modifiable. 

Plaintiff's counsel sent the modified proposed PSA to defendant on 

November 21, 2013. No further modifications were made to the proposed PSA. 

Almost three months later, the parties executed the PSA on February 14, 2014. 

Although defendant remained unrepresented by counsel during the negotiations, 

he hired an attorney to review the final version of the PSA before signing it. 

Under the terms of the PSA, defendant agreed that plaintiff would receive: 

(a) alimony in the sum of $300 per week for 15 years; (b) fifty percent of 

defendant's pension plan; (c) sixty-two percent of defendant's annuity fund

purportedly valued at $230,036 but actually valued at approximately $300,000 

at the time of rollover; and (d) medical insurance coverage under defendant's 

policy. 

In addition, plaintiff agreed to waive her interest in the marital home. The 

parties "agree[d] and acknowledge[d] that the value of the property and attached 

land [was] approximately $168,000.00" and that the aggregate balance of the 

first and second mortgage was approximately $118,000. The PSA confirmed 

that plaintiff agreed to convey all right, title, claim, or interest in the property in 
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exchange for distribution of "an additional twelve (12%) percent of [defendant's] 

Pointers Local 13 Annuity." 

Notably, the PSA reveals that, prior to the settlement, the parties heavily 

disputed defendant's "obligation to pay alimony both as to the amount and 

duration." However, the PSA explains that "[i]n consideration of the terms and 

provisions of the agreement, [plaintiff] has agreed to accept and [defendant] has 

agreed to pay irrevocable and non-modifiable limited duration alimony." The 

PSA specifically provided that, "[not]withstanding any language contained in 

Lepis v. Lepis1 or Crews v. Crews,

2

the alimony paid should be non-modifiable 

and that this provision is irrevocable even if" defendant experienced "dramatic 

and substantial changes in income of whatever nature, scope or duration." The 

PSA further provided that the alimony is non-modifiable even in the event of 

"[a]ny illness or condition developed by the [plaintiff] or [defendant] at any 

time." The PSA then reiterates that:

G. Specifically, both [plaintiff] and [defendant] waive 

any rights they may have under the Lepis and/or Crews

decision to later argue that subsequent changes or 

circumstances render the alimony waiver at the end of 

the term or the alimony non-modifiability during the 

term either unfair or inequitable. Each party 

1

 Lepis v. Lepis, 83 N.J. 139 (1980). 

2 Crews v. Crews, 164 N.J. 11 (2000).
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acknowledges having been advised by their counsel of 

their Lepis and/or Crews changed circumstance 

standard and further acknowledge that they have been 

supplied with a copy of the decision and fully 

understand the rights they are waiving. [Defendant] 

shall not have the right to modify his alimony 

obligation based on further beneficial financial changes 

on the part of [plaintiff] including but not limited to her 

earned or unearned income. 

H. It is [the] specific agreement of the parties to 

introduce concepts of collateral estoppel into this 

agreement to prevent [plaintiff] and [defendant from] 

seeking modification of the alimony during or at the 

end of the term without which [defendant] and 

[plaintiff] would not have agreed to obligate themselves 

to make the economic adjustments made hereunder. 

Defendant did not file an answer to the complaint. Default was entered 

against him. On March 11, 2014, a final judgment of divorce from bed and 

board was entered on the ground of irreconcilable differences. The judgment 

incorporated the terms of the PSA. An August 4, 2014 QDRO that provided for 

distribution of fifty percent of defendant's pension fund to plaintiff was entered 

by consent. 

In September 2017, defendant moved to convert the judgment to a final 

judgment of divorce (FJOD). On November 17, 2017, the trial court granted the 

motion. Defendant's request for an award of counsel fees was denied. 
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In April 2018, defendant moved to reduce alimony, claiming he suffered 

a substantial reduction in income as a result of injuries sustained in a motor 

vehicle accident on April 10, 2018. Defendant certified that he was unable to 

work and receiving treatment at Cooper University Hospital Trauma Center. 

Defendant's certification did not set forth the nature or extent of his injuries. 

Nor did he provide competent medical evidence regarding any resulting 

disability from employment. Plaintiff opposed the motion and cross-moved for 

an award of counsel and costs totaling $1500. 

On June 14, 2018, the court issued an order and written statement of 

reasons denying defendant's motion to reduce alimony and plaintiff's crossmotion for counsel fees. The court noted that defendant3

"failed to provide a 

current case information statement" (CIS), in violation of Rule 5:5-4(a). It 

further noted that defendant failed to provide "documentation regarding his 

claim that he is now disabled and unable to pay his alimony obligation." The 

court concluded that defendant did not make a prima facie showing of changed 

circumstances. As to his allegation that he is now earning significantly less 

income due to disability resulting from the accident, the court noted that 

3

 At several points in its statement of reasons, the trial court mistakenly referred 

to defendant as plaintiff. 
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defendant "did not provide a police report, an accident report, an injury 

diagnosis, a doctor's report, nor any proofs concerning his disability." As a 

result of these findings, the court did not reach the issue of non-modifiability of 

defendant's alimony obligation. Defendant did not appeal from that ruling. 

As to plaintiff's counsel fee application, the court found "[d]efendant did 

not exercise bad faith" in moving for an alimony reduction. The court also found 

"that both parties [were] able to pay their own counsel fees" but noted defendant 

was unrepresented. The court noted that defendant earned $61,000 in 2017. The 

court declined to award counsel fees to plaintiff as a sanction against defendant. 

On April 4, 2019, plaintiff moved to: (1) enter judgment against defendant 

for alimony arrears in the sum of $16,399; (2) an order allowing for payment of 

the judgment and future alimony payments from defendant's annuity and pension 

plans; and (3) an award of counsel fees and costs in the sum of $1355. The 

attorney's fees were billed at the rate of $290 per hour. Defendant cross-moved 

to reduce and suspend alimony. 

Plaintiff's supporting certification noted that the PSA obligated defendant 

to pay her term alimony of $300 per week for fifteen years. Plaintiff averred 

that defendant owed her alimony arrears of $16,399 as of March 25, 2019. 
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Defendant's certification confirmed that he met with an attorney to review 

the proposed PSA. The attorney told defendant "that she thought the agreement 

was fair and suggested that [he] sign it." Defendant noted, however, that the 

attorney did not review any CISs or otherwise inquire about either party's 

financial circumstances or review the proposed equitable distribution. 

Defendant certified that the attorney he consulted "did not explain my rights 

under Lepis v. Lepis, or that the agreement contained an anti-Lepis clause, or 

the significance of this clause." Defendant certified that despite language in the 

PSA to the contrary, he was not advised of the Lepis or Crews decisions and 

"did not understand that [he] was waiving [his] rights under those decisions." 

Defendant stated that he stopped attending high school after the tenth grade and 

did not obtain a GED. He contended he did not understand his rights under 

Lepis or knowingly waive them. He claimed the PSA was not the product of 

negotiation. 

Defendant claimed the PSA "was one-sided in favor of plaintiff."

Defendant noted that the attorney he consulted to review the proposed PSA was 

not involved in any negotiations. He further noted that he did not attend the 

final hearing for entry of the judgment from bed and board. 
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As to his reduced income level, defendant stated he was earning 

approximately $70,000 as a brick layer when the PSA was executed. In February 

2018, he filed a claim for unemployment benefits because he "was between 

projects." In April 2018, he "was involved in a serious accident and [had] not 

worked since." Although his unemployment benefits were extended after the 

accident, the $14,586 in maximum benefits was exhausted. Sixty percent of the 

benefits were allocated to plaintiff towards alimony. Defendant also received 

$400 per week in disability benefits under his auto insurance policy. Of that 

amount, defendant paid $260 per week to plaintiff, leaving him only $140 per 

week. 

Defendant asserted that his home was in foreclosure, but a mortgage 

modification was conditionally approved. He claimed he was unable to afford 

internet service or cable television, wore clothing donated by his church, and 

received food from a local food pantry. 

The court issued a June 21, 2019 order granting plaintiff's motion to enter 

judgment against defendant for the alimony arrears. It denied defendant's crossmotion to reduce or suspend his alimony obligation and to vacate the PSA. The 

court reserved on the issues of enforcing the judgment against defendant's 
10 A-5232-18T3

annuity or pension plans and plaintiff's counsel fee request. It afforded 

defendant an opportunity to submit an alternative way to satisfy the judgment. 

The court defendant's request to vacate the agreement because defendant 

failed to produce sufficient evidence that he did not understand the terms of the 

PSA or that he could not, with reasonable diligence, have understood them. The 

court found that defendant had an attorney review the proposed PSA. It further 

found that the proposed PSA "was negotiated and changed." 

The court found the agreement was neither "egregiously one-sided [n]or 

unfair based on the circumstances." It further found that defendant entered into 

the PSA freely and voluntarily. 

Next, the court addressed the anti-Lepis clause. The court found it "ha[d]

no choice . . . but to enforce the agreement that the parties" made. It noted that 

"parties can incorporate an anti-Lepis clause into a property settlement 

agreement but must do so with full knowledge of all present and reasonably 

for[e]seeable future circumstances." 

The court found that the PSA specifically detailed such circumstances, 

one of which defendant based his application on. It noted the anti-Lepis clause 

was almost two pages long and listed several events that would not allow for 

alimony modification. 
11 A-5232-18T3

Relying on Morris v. Morris, 263 N.J. Super. 237 (App. Div. 1993), the 

court found that the PSA contained a clear provision prohibiting alimony 

modifications despite enumerated changed circumstances. The court further 

found "there was consideration given" for the anti-Lepis clause. The court held 

defendant responsible for learning the impact of the anti-Lepis clause before 

signing the PSA and that plaintiff's counsel had no duty to explain the meaning 

of the clause. 

Lastly, the court explained that Morris allows for alimony modification in 

extreme cases; however, the court found that defendant failed to provide any 

evidence of an extreme medical condition that rendered the agreement 

inequitable. The court noted that none of the reports submitted by defendant 

"indicated by a reasonable degree of medical certainty that [defendant was] 

unable to perform the duties that he performed." 

The court granted plaintiff's application to enforce the alimony arrears for 

the same reasons it denied defendant's application to reduce, suspend, or vacate 

the alimony provision. As to plaintiff's request for the judgment to be satisfied 

through defendant's annuity plan or pension, the court reserved to conduct 

further research and to allow the parties time to brief the issue. 
12 A-5232-18T3

On July 16, 2019, the court granted plaintiff's request to enforce the 

judgment through a QDRO directed at defendant's annuity and pension fund 

plans. In an accompanying memorandum of decision, the court relied on our 

decision in Orlowski v. Orlowski, 459 N.J. Super. 95 (App. Div. 2019). The 

court reiterated that defendant's application was not supported by any financial 

information as required by court rules. Since the FJOD required defendant to 

pay plaintiff $300 per week in alimony and defendant had failed to pay alimony 

for approximately fifty-eight weeks, the court found that defendant owed 

plaintiff $17,600.93 in alimony. The court rejected defendant's alternative 

payment method of satisfying the arrears at the rate of $100 per week. The court 

concluded that permitting plaintiff to invade defendant's retirement accounts by 

way of QDRO would be the only way to satisfy the alimony arrears given 

defendant's lack of income and assets. 

In addition, the court awarded plaintiff counsel fees and costs of $2252.50, 

also to be paid by way of QDRO imposed on defendant's retirement accounts. 

As to the reasonableness of the attorney's fees, the court reviewed the 

certification submitted by plaintiff's counsel, and it found that "the hourly rate 

charged by plaintiff's attorney [was] reasonable and commensurate with 

attorneys [of] similar experience in Atlantic County, N.J." The court found the 
13 A-5232-18T3

4.25 hours expended by counsel was "extremely reasonable," as was the 

resulting fee request of $2102.50 and $50 filing fee. The court further found 

that "[d]efendant's income ability [was] sufficient to pay counsel fees. Plaintiff 

should not be burdened with counsel fees spent for enforcement purposes." It 

concluded that the counsel fees incurred "for the successful enforcement of an 

alimony obligation" should be awarded and "paid from defendant's portion of 

his qualified retirement plans." This appeal followed. 

Defendant raises the following points for our consideration:

POINT I.

THE PARTIES' PROPERTY SETTLEMENT 

AGREEMENT IS UNENFORCEABLE AS 

APPELLANT DID NOT UNDERSTAND THE ANTILEPIS PROVISION OF THE AGREEMENT, DID 

NOT KNOWINGLY WAIVE HIS RIGHT TO 

MODIFY ALIMONY, AND AS THE PARTIES DID 

NOT CONTEMPLATE THE UNFOR[E]SEEABLE 

AND EXTREME CIRCUMSTANCES OF AN 

AUTOMOBILE ACCIDENT THAT WOULD 

RENDER THE DEFENDANT INCAPABLE OF 

WORKING.

POINT II.

DEFENDANT IS ENTITLED TO A REDUCTION OR 

SUSPENSION OF ALIMONY IN LIGHT OF THE 

CHANGED CIRCUMSTANCES OF BOTH PARTIES.
14 A-5232-18T3

POINT III.

THE TRIAL COURT ERRED IN GRANTING 

JUDGMENT TO SATISFY ALIMONY ARREARS IN 

FAVOR OF THE PLAINTIFF AND AGAINST THE 

DEFENDANT.

POINT IV.

THE TRIAL COURT ERRED IN AWARDING 

ATTORNEY'S FEES TO THE PLAINTIFF.

POINT V.

THE TRIAL COURT ERRED IN ORDERING THE 

SATISFACTION OF ALIMONY ARREARS AND 

ATTORNEY'S FEES VIA A QDRO.

Appellate review of Family Part orders is generally limited. Cesare v. 

Cesare, 154 N.J. 394, 411 (1998). We afford considerable deference to the 

discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. 

Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J. Super. 17, 

21 (App. Div. 2006)). The Appellate Division "accord[s] particular deference 

to the Family Part because of its 'special jurisdiction and expertise' in family 

matters." Harte v. Hand, 433 N.J. Super. 457, 461 (App. Div. 2013) (quoting 

Cesare, 154 N.J. at 413). 

Generally, "findings by the trial court are binding on appeal when 

supported by adequate, substantial, credible evidence." Cesare, 154 N.J. at 411-
15 A-5232-18T3

12 (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 

(1974)). The reviewing court will not disturb the factual findings and legal 

conclusions of the trial court unless convinced they are "so manifestly 

unsupported by or inconsistent with the competent, relevant and reasonably 

credible evidence as to offend the interests of justice." Ricci v. Ricci, 448 N.J. 

Super. 546, 564 (App. Div. 2017) (quoting Elrom v. Elrom, 439 N.J. Super. 424, 

433 (App. Div. 2015)). Challenges to legal conclusions, as well as a trial court's 

interpretation of the law, are subject to de novo review. Id. at 565.

We affirm the trial court's orders substantially for the reasons expressed 

in its June 21, 2019 oral decision and July 16, 2019 memorandum of decision. 

We add the following comments. 

Based on our careful review of the record, we discern no abuse of 

discretion warranting our intervention. Substantial, credible evidence in the 

record supports the trial court's decisions, and we are satisfied there was no 

denial of justice under the law.

Defendant argues that the PSA is unenforceable because he did not 

understand the PSA given his limited education level. He claims that "[t]he trial 

court's findings were not supported by adequate, substantial, credible evidence "

because the court reached its conclusion "[w]ithout taking testimony from the 
16 A-5232-18T3

defendant," without questioning defendant about his comprehension ability, and 

without holding "a plenary hearing . . . to ascertain facts relevant to the 

defendant's claims." Defendant further asserts that he was "not meaningfully 

represented throughout the PSA negotiations and divorce process." We are 

unpersuaded. 

Consistent with New Jersey's "'strong public policy favoring stability of 

arrangements' in matrimonial matters," courts will not "unnecessarily or lightly 

disturb" a PSA where matters in dispute in a post-judgment matrimonial motion 

are addressed in a fair and equitable agreement. Quinn v. Quinn, 225 N.J. 34, 

44 (2016) (quoting Konzelman v. Konzelman, 158 N.J. 185, 193-94 (1999)) see

also Dolce v. Dolce, 383 N.J. Super. 11, 20 (App. Div. 2006) (explaining that 

PSAs are entitled to "considerable weight with respect to their validity and 

enforceability" when they are fair and just).

Nevertheless, courts have the authority to modify a PSA agreement 

because of unconscionability, misrepresentation, or fraud. Addesa v. Addesa, 

392 N.J. Super. 58, 66 (App. Div. 2007). An application to modify a property 

settlement agreement may be made pursuant to Rule 4:50-1(f). Connor v. 

Connor, 254 N.J. Super. 591, 601 (App. Div. 1992). To meet the stringent 

requirements of Rule 4:50-1(f), the moving party must make a "showing of 
17 A-5232-18T3

fraud, misconduct or mistake in the negotiations or a showing of fundamental 

inequity or unfairness in the agreement." Ibid. Thus, the party challenging the 

agreement bears the burden of demonstrating that the agreement is unfair and 

inequitable. Guglielmo v. Guglielmo, 253 N.J. Super. 531, 541 (App. Div.

1992). 

We first note that the language of the anti-Lepis clause was clear and 

unambiguous. It plainly set forth that subsequent loss of income or change in 

medical condition was not a basis to modify the term alimony. Its meaning was 

not shrouded in obscure legal terminology. It was easily understandable by a 

lay person. The court had no obligation, in this present case, to reform the PSA 

when the intent of the parties was clear. Quinn, 225 N.J. at 45. 

Defendant sought, in part, to vacate the PSA. To that extent, his 

application is untimely. A moving party seeking to vacate a PSA incorporated 

in a judgment must file their motion "within a reasonable time, and for the 

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. 4:50-2. Here, the PSA 

was incorporated into the final judgment from bed and board on March 11, 2014. 

Defendant filed his cross-motion on June 3, 2019, more than five years later. To 

the extent that defendant bases his motion on "mistake, inadvertence, surprise, 
18 A-5232-18T3

or excusable neglect" under Rule 4:50-1(a), his motion is clearly time-barred. 

Ibid. To the extent defendant claims the PSA "is no longer equitable" or "for 

any other reason justifying relief," Rule 4:50-1, his motion is still time-barred 

as it was not filed "within a reasonable time," Rule 4:50-2. For this additional 

reason, defendant's application to vacate the alimony provision of the PSA was 

properly denied. 

Moreover, defendant did not make out a prima facie case that the alimony 

provision was unfair or inequitable when agreed upon. Nor did he establish that 

the PSA was "achieved through coercion, deception, fraud, undue pressure, or 

unseemly conduct." Peskin v. Peskin, 271 N.J. Super. 261, 276 (App. Div. 

1994). On the contrary, plaintiff's original proposal for $325 per week 

permanent alimony award was reduced through negotiation to term alimony of 

$300 per week for fifteen years. And, as noted by the trial court, defendant 

received consideration for the term alimony provision. 

Although defendant only completed the tenth grade, he has he shown that 

he was incapable of reasonable diligence by hiring counsel to represent him in 

the negotiation of the PSA or the divorce action in general. 

Defendant argues that he is entitled to a reduction or suspension of 

alimony because of the changed circumstances of both parties. Specifically, 
19 A-5232-18T3

defendant claims that at least three of the circumstances recognized under Lepis

warrant modification in this case, such as a decrease in the supporting spouse's 

income, illness arising after the original judgment, and subsequent employment 

of the dependent spouse. 

The decision to modify an alimony obligation "based upon a claim of 

changed circumstances rests within a Family Part judge's sound discretion."

Larbig, 384 N.J. Super. at 21. An alimony determination will not be overturned 

on appeal absent an abuse of discretion. Rolnick v. Rolnick, 262 N.J. Super. 

343, 360 (App. Div. 1993). "[E]very motion to modify an alimony obligation 

'rests upon its own particular footing and the appellate court must give due 

recognition to the wide discretion which our law rightly affords to the trial 

judges who deal with these matters.'" Donnelly, 405 N.J. Super. at 127 (quoting 

Larbig, 384 N.J. Super. at 21). 

Aside from the import of the anti-Lepis clause, the trial court correctly 

found that defendant's moving papers were deficient. Noticeably absent from 

defendant's submissions is any competent proof that he is permanently disabled 

from employment.4 Indeed, his application does not even describe the nature 

4

 Defendant submitted a series of letters by physicians indicating he was 

temporarily unable to return to work due to orthopedic or cardiac issues, none 

of those submissions indicated he was permanently disabled from employment. 
20 A-5232-18T3

and extent of his injuries sustained in the accident and their impact on his ability 

to work as a bricklayer or in other capacities. 

Defendant did not demonstrate he is permanently disabled from 

employment. A temporary reduction in income is not a basis for reducing 

support. Innes v. Innes, 117 N.J. 496, 504 (1990) (citing Bonanno v. Bonanno, 

4 N.J. 268, 275 (1950)). For this additional reason, defendant did not make out 

a prima facie case of changed circumstances. 

We next address defendant's arguments that the trial court erred by 

entering a judgment and QDRO to enforce and satisfy defendant's alimony 

arrears. Defendant's argument that enforcing the alimony arrears through a 

judgment was improper is meritless. R. 2:11-3(e)(1)(E). Accordingly, we will 

focus on granting enforcement through a QDRO. 

A QDRO is a domestic relations order that "creates or recognizes the 

existence of an alternative payee's right to, or assigns to an alternate payee the 

right to, receive all or a portion of the benefits payable with respect to a 

participant under a plan." 29 U.S.C. § 1056(d)(3)(B); see also 26 U.S.C. § 

414(p)(1). "Alternate payee" is defined as "any spouse, former spouse, child, or 

other dependent of a participant who is recognized by a domestic relations order 

as having a right to receive all, or a portion of, the benefits payable under a plan 
21 A-5232-18T3

with respect to such participant." 29 U.S.C. § 1056(d)(3)(K); see also 26 U.S.C. 

§ 414(p)(8). 

In Orlowski, we held that a court may compel reimbursement of college 

tuition, expert witness fees, and counsel fees through a QDRO against the 

husband's annuity account, which was governed by the Employee Retirement 

Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001 to 1461, when the exspouse is the alternative payee of the QDRO. 459 N.J. Super. at 99. 

Marital decrees that do not meet the statutory definition of a QDRO are 

preempted by ERISA. Id. at 105 (citing Ross v. Ross, 308 N.J. Super. 132, 150 

(App. Div. 1998)). When a marital decree qualifies as a QDRO, however, "it is 

'exempt from ERISA's preemption provision.'" Id. at 105 (quoting Hawxhurst 

v. Hawxhurst, 318 N.J. Super. 72, 84 n.1 (App. Div. 1998)). The QDRO ordered 

by the court met that requirement. With respect to attorney's fees, however, 

"QDROs should be utilized to enforce counsel . . . fee awards only when other 

assets sufficient to satisfy the awards either do not exist or have been made 

unavailable by the obligor." Id. at 108. 

Here, the court afforded defendant ample opportunity to propose a 

reasonable method of satisfying his significant, longstanding alimony 

arrearages. While claiming he had no income, he proposed repayment at $100 
22 A-5232-18T3

per week. The court rejected that proposal. At that rate, it would take well more 

than three years to satisfy the arrears that totaled $17,600.93. Instead, the court 

reasonably concluded that permitting plaintiff to invade defendant's retirement 

accounts by way of QDRO would be the only way to satisfy the alimony arrears 

and counsel fees and costs given defendant's alleged lack of income or other 

assets. We discern no error or abuse of discretion. 

Lastly, we address the counsel fees and costs awarded to plaintiff. 

Defendant argues that the trial court abused its discretion in awarding attorney's 

fees to the plaintiff because it misapplied the factors enumerated under Rule 5:3-

5(c). Specifically, defendant claims that the court's finding that defendant had 

sufficient income to pay for attorney's fees was inconsistent with the record. 

Counsel fee determinations rest within the trial judge's sound discretion. 

Williams v. Williams, 59 N.J. 229, 233 (1971). We will disturb a trial court's 

determination on counsel fees "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)). 

An "abuse of discretion only arises on demonstration of 'manifest error or 

injustice,'" Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres, 

183 N.J. 554, 572 (2005)), and occurs when the trial judge's decision is "made 
23 A-5232-18T3

without a rational explanation, inexplicably departed from established policies, 

or rested on an impermissible basis." Milne v. Goldenberg, 428 N.J. Super. 184, 

197 (App. Div. 2012) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 

571 (2002)).

"A lawyer's fee must be reasonable." Giarusso v. Giarusso, 455 N.J. 

Super. 42, 50 (App. Div. 2018) (quoting Rosenberg v. Rosenberg, 286 N.J. 

Super. 58, 69 (App. Div. 1995)). Determining the reasonableness of the fee 

involves determining the number of hours reasonably expended multiplied by a 

reasonable hourly rate. Id. at 51 (citing Rendine, 141 N.J. at 334-35). 

"Compiling raw totals of hours spent, however, does not complete the inquiry. 

It does not follow that the amount of time actually expended is the amount of 

time reasonably expended." Ibid. (quoting Rendine, 141 N.J. at 334-35). 

Here, the court properly determined the reasonableness of the attorney's 

fee because it considered the number of hours reasonably expended multiplied 

by a reasonable hourly rate. Giarusso, 455 N.J. Super. at 50. The court noted 

that it reviewed the certification submitted by plaintiff's counsel and found that 

the number "of hours spent" was "extremely reasonable" and "the hourly rate 

charged by plaintiff's attorney [was] reasonable and commensurate with 
24 A-5232-18T3

attorneys [of] similar experience in Atlantic County." The record fully supports 

those findings. 

The court also correctly noted that the counsel fees were incurred to 

enforce the PSA incorporated into the judgment. See R. 5:3-5(c)(8). Rule 1:10-

3 provides that a "court in its discretion may" award attorney's fees "to a party 

accorded relief under this rule" as one of the remedies for enforcement of 

litigant's rights. See also R. 5:3-5(c)(8). The rule "recognizes that as a matter 

of fundamental fairness, a party who willfully fails to comply with an order or 

judgment entitling his adversary to litigant's rights is properly chargeable with 

his adversary's enforcement expenses." Pressler & Verniero, Current N.J. Court 

Rules, cmt. 4.4.5 on R. 1:10-3 (2021). Awarding plaintiff modest counsel fees 

and costs to enforce the PSA was appropriate under the circumstances. 

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

remaining arguments, we conclude they lack sufficient merit to warrant 

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

Affirmed.