SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4065-19

MIA LYNNE GERSTEL,

Plaintiff-Respondent/

Cross-Appellant,

v.

JEFFREY GERSTEL,

Defendant-Appellant/

Cross-Respondent.

_______________________

Argued January 3, 2022 – Decided January 25, 2022

Before Judges Rose and Enright. 

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Union County, Docket 

No. FM-20-1872-15.

Neil J. Berger, attorney for appellant/cross-respondent.

Brian E. Fleisig argued the cause for respondent/crossappellant.

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NOT FOR PUBLICATION WITHOUT THE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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A-4065-19

In this post-judgment matrimonial matter, defendant Jeffrey Gerstel 

appeals from the June 26, 2020 order denying his request for a reduction in child 

support. Plaintiff Mia Gerstel cross-appeals from the same order, contending

the judge abused his discretion by denying her requests for counsel fees and 

failing to fix defendant's child support arrears. We affirm.

The parties married in July 1997, had three children together, and were 

divorced in 2009. When they divorced, the parties executed a settlement 

agreement which obligated defendant to pay plaintiff child support in the sum 

of $3,648 per month. 

On April 20, 2017, the parties entered into a consent order, increasing 

defendant's child support obligation to $55,000 per year, or approximately 

$4,583 per month. The higher figure was based on defendant grossing between 

$300,000 and $325,000 per year as a physician, and plaintiff grossing between 

$59,000 to $75,000 as a learning disabilities teacher consultant. 

Six months later, the parties agreed to reduce defendant's child support by 

fifteen percent, based on defendant assuming physical custody of the parties' 

oldest daughter. Accordingly, the parties stipulated in an October 30, 2017 

consent order that defendant would pay child support at the rate of $3,895.83

per month. Although the parties also agreed to exchange financial information 
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A-4065-19

and engage in additional discussions "to determine the appropriate level of 

reduction that should occur in light of the transfer of residential custody of [the 

parties' older daughter,]" they never modified the October 2017 consent order. 

In April 2019, defendant moved to Florida to start a new job as a 1099 

employee. On April 8, 2020, he wrote a letter to plaintiff, advising her that he 

was unable to pay his "full obligation of child support" due to the pandemic and 

a corresponding decreased caseload, as well as his "inability to find other 

employment." Defendant also stated in the letter:

It is my hope that once this pandemic is managed, I will 

be able to make the income I used to, and will be able 

to continue paying you what I am obligated. How 

quickly that will be will largely depend on the 

pandemic recovery and how fast I can regain my normal 

income.

In May 2020, defendant moved for a reduction in child support, claiming, 

in part, that he grossed approximately $218,000 in 2019 (about $100,000 less

than what he purportedly earned in 2017), and that his current average monthly 

income had dropped to approximately $4,400 per month. Moreover, he certified 

that because he was involved in litigation with his prior employer, he had "a 

tainted record which . . . significantly limited his ability to obtain more 

substantial employment." Defendant stated the pandemic "further reduced his 

income due to a substantial decrease in routine radiology examinations" and 
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because the reimbursements for the radiology cases were "much lower than [in] 

other parts of the country."

The following month, plaintiff filed a cross-motion, asking that the court 

deny defendant's modification motion due to a paucity of proofs. She 

highlighted that defendant provided only two pages of his 2019 tax returns, 

showing a gross income of approximately $268,000, and that he failed to submit 

any 2019 W-2s, 1099s, or K-1s. Additionally, she noted he submitted only a 

few emails from his employer to confirm his current income. 

By way of affirmative relief, plaintiff cross-moved for an order: (1)

compelling defendant to pay child support via wage garnishment through the 

probation department; (2) directing him to "satisfy any and all arrears in his 

child support obligation . . . within five . . . days[,]" and if the arrears were "not 

timely paid, and in full," to have his arrears paid at a rate of $500 per month 

"until the arrears [were] fully satisfied"; (3) imposing a one-missed payment

bench warrant1; and (4) awarding her counsel fees and costs. In the event 

defendant's child support obligation was adjusted, she asked that he contribute 

1

 In the certification accompanying her cross-motion, plaintiff asked the court 

to "implement a two[-]missed payment bench warrant . . . as a result of 

[defendant's] willful noncompliance[.]"
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toward the children's various expenses, including their unreimbursed health 

expenses, lessons, and activities.

Plaintiff acknowledged in her June 1, 2020 certification that the parties 

entered into a consent order in October 2017 based on their eldest daughter 

moving to defendant's residence, but she claimed that because the parties never 

pursued additional discussions as contemplated under the October 2017 consent 

order, and "never confirmed any further modification in [d]efendant's child 

support obligation or his contribution toward the children's expenses[,]" the 

court should enforce the April 2017 consent order rather than the October 2017.

Plaintiff also asked that defendant be held in violation of litigant's rights 

for refusing to abide by the April 2017 consent order. Additionally, she certified 

that defendant should "immediately pay his arrears in child support as of the 

date he decided to reduce his obligation." She did not specify the amount 

defendant owed her as of the date of her June 1 certification. Finally, plaintiff 

certified she was entitled to an award of counsel fees not only because she had 

to "borrow the money for [her] attorney's retainer from a friend" but also because 

"[d]efendant's behavior . . . cannot be condoned." 

On June 26, 2020, the motion judge entered an order, accompanied by a 

comprehensive twenty-seven-page opinion, denying defendant's motion in its 
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entirety, and denying each of plaintiff's cross-motion requests, except for her 

application to have defendant pay child support through the probation

department. In that regard, the judge directed both parties to "present 

themselves to Probation within ten . . . days . . . to set up the account"

2

and 

ordered that defendant pay the "amount of child support set forth in the October 

30, 2017 [c]onsent [o]rder ($3,895.83 monthly) through the Union County 

Probation [Department], effective immediately." 

In denying defendant's modification motion, the judge explained: 

COVID-19 related reductions in salary are not 

sufficient to create a presumption of permanent 

changed circumstances. COVID-19 related reductions 

in salary have only existed since March 2020. There is 

no evidence, as states begin to reopen their economies, 

that salaries, such as [d]efendant's will [not] rise to

[their] pre-pandemic levels. Additionally, [d]efendant 

admits to the [c]ourt that he is currently in search of a 

higher-paying position. Defendant has failed to show a 

permanent change in circumstance[s] warranting a 

downward modification in child support.

Although [d]efendant is currently earning less than he 

did in 2017, the [c]ourt has neither enough current 

financial documents from [d]efendant, nor any proof of 

more than a temporary change in circumstance so as to 

warrant a downward modification in child support.

2

 The record reflects that on August 21, 2020, the judge found each party failed 

to establish the probation account as contemplated under the June 26 order.
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Regarding plaintiff's cross-motion, the judge noted that the Family Part 

was "currently not issuing bench warrants for financial issues" in light of "the 

ongoing COVID-19 crisis[,]" but that plaintiff could renew her application for a 

bench warrant against defendant "once the COVID-19 crisis has passed." As to 

plaintiff's counsel fee request, the judge acknowledged he had "the authority to 

award counsel fees in family actions, pursuant to R[ule] 4:42-9(a)(1), N.J.S.A. 

2A:34-23, and R[ule] 5:3-5." After outlining the factors enumerated in Rule

5:3-5(c), the judge denied plaintiff's fee request, finding that, "[a]s neither 

party's application is being granted (aside from child support being paid through 

Probation), and as neither party brought [his or her] application in bad faith, 

there is no reason why each party should not pay [his or her] own legal fees." 

On appeal, defendant raises the following contentions for our 

consideration:

POINT I

THE LOWER COURT ABUSED ITS DISCRETION 

IN DEVIATING FROM THE GUIDELINE[S] AND 

DENYING FATHER'S MOTION SEEKING 

MODIFICATION. 

POINT II

THE FATHER MET HIS BURDEN OF PROOF OF 

CHANGED CIRCUMSTANCES TO WARRANT A 

MODIFICATION OF CHILD SUPPORT.
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On cross-appeal, plaintiff advances the following arguments:

POINT I

A. [DEFENDANT'S] DIRECT APPEAL IS 

ENTIRELY WITHOUT MERIT, AS THERE ARE 

MULTIPLE AND INDEPENDENT LEGAL, 

FACTUAL AND EVIDENTIARY GROUNDS TO 

REJECT [HIS] CHANGED CIRCUMSTANCES 

ARGUMENT.

B. [DEFENDANT] DID NOT PRESENT 

SUFFICIENT EVIDENCE TO THE FAMILY PART 

TO SUPPPORT AN AWARD FOR CHANGED 

CIRCUMSTANCES UNDER LEPIS V. LEPIS.[

3

]

POINT II

A. [PLAINTIFF'S] CROSS APPEAL IS STRONGLY 

SUPPORTED IN THE CASE RECORD. THE 

FAMILY PART FAILED ENTIRELY TO ADDRESS 

AN ISSUE THAT WAS SQUARELY BEFORE IT, 

THUS NECESSITATING A REMAND. THE 

FAMILY PART SIMILARLY ABUSED ITS 

DISCRETION THROUGH SHORT-CIRCUITING 

THE WELL-ESTABLISHED CRITERIA APPLIED 

TO COUNSEL FEE APPLICATIONS IN THE 

FAMILY PART.

B. THE FAMILY PART FAILED TO CALCULATE 

[DEFENDANT'S] CHILD SUPPORT ARREARAGES 

TO [PLAINTIFF] AND TO ORDER THEM TO BE 

PAID.

C. [PLAINTIFF] SHOULD BE ENTITLED TO AN 

AWARD OF COUNSEL FEES. 

3

 83 N.J. 139 (1980).
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"Appellate courts accord 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 v. Cesare, 154 N.J. 394, 

412 (1998)). "Only when the trial court's conclusions are so 'clearly mistaken' 

or 'wide of the mark' should we interfere[.]" Ibid. (quoting N.J. Div. of Youth 

& Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008)). "We will reverse only if we 

find the trial judge clearly abused his or her discretion[.]" Clark v. Clark, 429 

N.J. Super. 61, 72 (App. Div. 2012). However, "all legal issues are reviewed de 

novo." Ricci v. Ricci, 448 N.J. Super. 546, 565 (App. Div. 2017) (citing Reese 

v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)). 

We also are mindful that matrimonial settlement agreements are "'entitled 

to considerable weight with respect to their validity and enforceability' in equity, 

provided they are fair and just" because they are "essentially consensual and 

voluntary in character[.]" Dolce v. Dolce, 383 N.J. Super. 11, 20 (App. Div. 

2006) (quoting Petersen v. Petersen, 85 N.J. 638, 642 (1981)). However, courts 

retain the equitable power to modify support provisions at any time. Lepis v. 

Lepis, 83 N.J. 139, 145 (1980).

The child support provisions of a matrimonial settlement agreement are 

subject to review and modification on a showing of changed circumstances. 
10 A-4065-19

Id. at 146. Under that standard, the judge determines whether the agreement is 

fair, equitable, and if it "should receive continued enforcement 

without modification[.]" Id. at 148-49. "When the movant is 

seeking modification of child support, the guiding principle is the 'best interests 

of the children.'" Id. at 157.

"The moving party has the burden of establishing a prima facie case of 

changed circumstances before discovery of the opposing spouse's finances will 

be ordered." Stamberg v. Stamberg, 302 N.J. Super. 35, 42 (App. Div. 

1997) (citing Lepis, 83 N.J. at 157). "By prima facie is meant evidence that, if 

unrebutted, would sustain a judgment in the proponent's favor." Baures v. 

Lewis, 167 N.J. 91, 118 (2001). "Courts have consistently rejected requests 

for modification based on circumstances which are only temporary or which are 

expected but have not yet occurred." Lepis, 83 N.J. at 151. Additionally, a

moving party arguing a change for the worse in his or her own circumstances 

must show specifically "that changed circumstances have substantially impaired 

the ability to support himself or herself." Crews v. Crews, 164 N.J. 11, 28

(2000) (quoting Lepis, 83 N.J. at 157). Current earnings have never been 

viewed as "the sole criterion [upon which] to establish a party's obligation for 

support." Weitzman v. Weitzman, 228 N.J. Super. 346, 354 (App. Div. 1988); 
11 A-4065-19

see also Miller v. Miller, 160 N.J. 408, 420 (1999) (concluding that a party's 

"potential to generate income is a significant factor to consider when 

determining his or her ability to pay [support]").

Regarding a court's authority to award counsel fees, we are cognizant that 

"[a]n allowance for counsel fees is permitted to any party in a divorce action, 

R[ule] 5:3-5(c), subject to the provisions of Rule 4:42-9." Slutsky v. Slutsky, 

451 N.J. Super. 332, 366 (App. Div. 2017). "An award of counsel fees and costs 

in a matrimonial action rests in the [sound] discretion of the trial court." 

Guglielmo v. Guglielmo, 253 N.J. Super. 531, 544-45 (App. Div. 

1992) (citing Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990)).

"Fees in family actions are normally awarded to permit parties with 

unequal financial positions to litigate (in good faith) on an equal 

footing." J.E.V. v. K.V., 426 N.J. Super. 475, 493 (App. Div. 2012) (quoting 

Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch. Div. 1992)). Additionally, "where 

a party acts in bad faith[,] the purpose of the counsel fee award is to protect the 

innocent party from [the] unnecessary costs and to punish the guilty 

party." Welch v. Welch, 401 N.J. Super. 438, 448 (Ch. Div. 2008) (citing Yueh 

v. Yueh, 329 N.J. Super. 447, 461 (App. Div. 2000)).
12 A-4065-19

To demonstrate the reasonableness of the fee application, "'all 

applications for the allowance of fees shall be supported by an affidavit of 

services addressing the factors enumerated by RPC 1.5(a).'" Slutsky, 451 N.J. 

Super. at 366 (quoting R. 4:42-9(b)). In determining whether and to what extent 

a counsel fee award is appropriate, the court must consider

(1) the financial circumstances of the parties; (2) the 

ability of the parties to pay their own fees or to 

contribute to the fees of the other party; (3) the 

reasonableness and good faith of the positions 

advanced by the parties both during and prior to trial; 

(4) the extent of the fees incurred by both parties; (5) 

any fees previously awarded; (6) the amount of fees 

previously paid to counsel by each party; (7) the results 

obtained; (8) the degree to which fees were incurred to 

enforce existing orders or to compel discovery; and (9) 

any other factor bearing on the fairness of an award.

[R. 5:3-5(c).]

Additionally, when calculating a fee award, a court must determine the 

reasonableness of the rates proposed by prevailing counsel and the 

reasonableness of the time spent. Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 21 

(2004) (citing Rendine v. Pantzer, 141 N.J. 292, 335-36 (1995)). 

A trial court's decision to grant or deny attorney's fees in a family action 

will be disturbed "only on the 'rarest occasion,' and then only because of clear 

abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 
13 A-4065-19

2008) (quoting Rendine, 141 N.J. at 317). That abuse occurs when the family 

court's "decision is 'made without a rational explanation, [and] inexplicably 

depart[s] from established policies, or rest[s] on an impermissible basis.'" Flagg 

v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (citation omitted). 

Governed by these principles, we discern no reason to disturb the judge's 

June 26 order. We add the following comments.

Regarding defendant's Points I and II, as well as plaintiff's Points IA. and 

IB., we note that in Lepis, the Court recognized a non-exhaustive list of factors 

that give rise to changed circumstances warranting modification of a support 

obligation. 83 N.J. at 151-52. Changed circumstances may "include 'an increase 

or decrease in the income of the supporting or supported spouse[.]'" Quinn v.

Quinn, 225 N.J. 34, 49 (2016) (quoting J.B. v. W.B., 215 N.J. 305, 327 (2013)). 

Here, it is undisputed that in support of his modification application, 

defendant supplied the trial court with a Case Information Statement (CIS), 

along with a partial 2019 tax return, a few emails from his current employer 

showing deposits made to his account, and a letter from one potential employer 

explaining why it would not hire him. As the motion judge concluded, such 

documentation fell short of what a payor needs to submit to a court in his or her

bid to establish a prima facie case of changed circumstances. Indeed, defendant 
14 A-4065-19

effectively ignored his obligation to submit documentation proving what his 

financial circumstances were when the last support order was entered in October 

2017, and how those circumstances compared to his current financial 

circumstances. See Beck v. Beck, 239 N.J. Super. 183, 190 (App. Div. 1990) 

("[T]he changed-circumstances determination must be made by comparing the 

parties' financial circumstances at the time the motion for relief is made with the 

circumstances which formed the basis for the last order fixing support 

obligations."). Further, defendant did not show his decrease in income was 

anything but temporary, having filed his application within a few short months 

of the onset of the pandemic, after advising plaintiff that "once this pandemic is 

managed," he hoped to "be able to make the income [he] used to, and . . . to 

continue paying . . . what [he was] obligated" to pay. 

Also fatal to defendant's bid for appellate relief is the fact that he failed to 

provide us with a copy of the CIS he filed in conjunction with his modification 

application, thus depriving us of any meaningful review of the arguments he 

raises on appeal. See R. 2:6-1(a)(1)(I) (requiring the appellant to include in the 

appendix on appeal "such other parts of the record . . . as are essential to the 

proper consideration of the issues, including such parts as the appellant should 

reasonably assume will be relied [upon] by the respondent in meeting the issues 
15 A-4065-19

raised"). Accordingly, we perceive no basis to second-guess the judge's denial 

of defendant's modification request. 

Turning to plaintiff's cross-appeal, we observe as a threshold matter that 

we will not consider an argument which was not raised before the trial court. 

Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012); Nieder v. Royal 

Indem. Ins. Co., 62 N.J. 229, 234 (1973). Appellate review is not limitless. 

"The jurisdiction of appellate courts rightly is bounded by the proofs and 

objections critically explored on the record before the trial court by the parties 

themselves." State v. Robinson, 200 N.J. 1, 19 (2009); see also Zaman v. Felton, 

219 N.J. 199, 226-27 (2014).

Here, under Points IIA. and IIB., plaintiff faults the judge for failing to 

fix the amount of defendant's support arrears as they existed in June 2020. But 

when she filed her cross-motion, she did not formally seek this relief. Instead, 

she asked the judge to order defendant to "satisfy any and all arrears in his child 

support obligation to [p]laintiff within five . . . days of the [c]ourt's [o]rder." 

Further, in her June 1, 2020 certification, she asked that defendant "immediately 

pay his arrears in child support as of the date he decided to reduce his 

obligation." 
16 A-4065-19

It is well established that "the enforcement, collection [and] modification 

. . . of unpaid arrearages in . . . child support payments are matters addressed to 

the sound discretion of the court." In re Rogiers, 396 N.J. Super. 317, 327 (App. 

Div. 2007) (quoting Mastropole v. Mastropole, 181 N.J. Super. 130, 141 (App. 

Div. 1981)). Here, because plaintiff failed to formally request that the trial court 

fix defendant's child support arrears, and did not certify what amount defendant 

purportedly owed her, and because the record does not reflect whether the judge 

was informed if defendant made any support payments between the time 

plaintiff filed her June 1 certification and the issuance of the June 26 order, we 

decline to find the judge abused his discretion in omitting an arrearage figure 

from his order.

Similarly, we find plaintiff's counsel fee arguments in Points IIA. and IIC.

unpersuasive. We note that while plaintiff argued before us that she was entitled 

to counsel fees by virtue of a default provision in the parties' original settlement 

agreement, neither her June 2020 certification nor her merits brief referred to 

this provision. Given that plaintiff did not properly present this argument to 

the trial court when she had an opportunity to do so, we do not consider it on 

appeal. Nieder, 62 N.J. at 234. More importantly, the record is devoid of any 

certification of services showing that plaintiff addressed each of the factors set 
17 A-4065-19

forth in Rules 5:3-5(c) and 4:42-9. See R. 2:6-1(a)(1)(I). Accordingly, we have 

no basis to conclude the judge abused his discretion in denying plaintiff's request 

for an award of counsel fees. 

To the extent we have not specifically addressed any of the parties' 

remaining arguments, it is because we find them to be without sufficient merit 

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

Affirmed.