Opinion
DOCKET NO. A-1119-10T4
10-17-2011
DONALD R. BROCK, Plaintiff-Appellant, v. JOANN BROCK, Defendant-Respondent.
Francine Del Vescovo argued the cause for appellant (Lomberg & Del Vescovo, L.L.C., attorneys; Ms. Del Vescovo and Mark T. Gabriel, on the briefs). Lawrence H. Bloom argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, J. N. Harris and Koblitz.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-001270-94.
Francine Del Vescovo argued the cause for appellant (Lomberg & Del Vescovo, L.L.C., attorneys; Ms. Del Vescovo and Mark T. Gabriel, on the briefs).
Lawrence H. Bloom argued the cause for respondent. PER CURIAM
Plaintiff Donald R. Brock appeals from the September 16, 2010 post-judgment order requiring him to pay $61,275 of his daughter's college expenses as well as $2500 in counsel fees and denying plaintiff credit for the approximately ten years of child support payments that he made on behalf of his son after the child's emancipation. Because neither party complied with the procedures set forth in their property settlement agreement (PSA) and material issues of fact are contested, we reverse and remand for a plenary hearing.
The parties entered into a PSA, which was incorporated into their final judgment of divorce on June 8, 1995. The PSA included the parties' agreement that plaintiff would pay defendant $88.07 per child per week in support. At the time of the divorce, the parties' son was fourteen years old and their daughter was eight years old. Under the PSA section titled "Termination of Obligation," plaintiff's
From the record, plaintiff appeared to be paying approximately $200 weekly in total for both children at the time of the motion.
obligation to make payments for the support and maintenance of the Children . . . shall terminate for each Child as each Child is emancipated, which shall be defined as occurring at the happening of any one of the following six events:
(a) Reaching the age of 18 (eighteen) years or completion of four years' academic college education,[] which ever last occurs; (b) Marriage of the Child, even though that marriage may be void or voidable and despite any annulment of that marriage;
(c) Permanent residence away from the residence of [defendant]: residence at boarding school, camp, or college shall not be deemed to be a residence away from the residence of [defendant], and thus shall not be deemed an emancipation event;
(d) Death of the child;
(e) Entry into the Armed Forces of the United States, whether voluntary or involuntary;
(f) Engaging in full time employment upon or after the Child's attainment of 18 (eighteen) years of age, except that (1) the Child's engagement in full-time employment during school vacation and/or summer periods shall not be deemed emancipation.
There is a handwritten notation that "unless it is a 5 year program then 5 years [of college education]" followed by an illegible mark. Plaintiff certifies that this language was mutually agreed to.
The PSA also contained the parties' agreement as to financing the college education of their children. In the section titled "College Education of the Children," the agreement states that
both parties have an obligation to provide for the college education of their Children, taking into consideration the respective income and assets of the parties at the time each Child attains the appropriate age. The parties agree to consult with a view toward adopting a harmonious policy concerning the college education of the Children. Accordingly, as each Child is prepared to enroll in college, each parent shall have the right to approve in advance an undergraduate college consistent with the family's means and the Child's abilities. Any dispute in this regard shall be resolved by a Court of competent jurisdiction upon application properly made.
This section of the PSA also requires that the children "apply for any scholarships or financial aid available and, except for medical reasons, complete four continuous years of college education. Failure to complete college within four continuous years, except for medical reasons," entitles either party "to seek a modification of his or her obligation under this paragraph, through a Court of competent jurisdiction"
The PSA section further states that the parties agree that "each Child shall be required to apply to state schools within the State of New Jersey first, and shall only attend out of state schools in the event that both Husband and Wife agree thereto, or in the event that a Child i[s] unable to gain entrance into a college within the State of New Jersey."
The parties' daughter attended St. Thomas Aquinas College in Sparkhill, New York, beginning in September 2005. Defendant claims she attempted to notify plaintiff of their daughter's choice of college by regular and certified mail, return receipt requested, during that same month. The letter is dated September 5, 2005; however, the unclaimed certified letter indicates that delivery was attempted on October 13, 2005. Plaintiff denies having received this letter. The parties concur that no agreement was reached concerning their daughter's choice of college and that plaintiff and his daughter were completely estranged thereafter. Plaintiff claims that he sent gifts to his daughter that were not acknowledged. Plaintiff saw her only once since 2005, at his son's wedding in Costa Rica on April 16, 2010, shortly before the post-judgment application in question was filed.
In May 2010, after five continuous years of study, the parties' daughter graduated from St. Thomas Aquinas College. Plaintiff claims that her attendance at an out-of-state, private college was never discussed and denies having received a written request to contribute to her college expense prior to her graduation. On July 6, 2010, defendant filed a motion to enforce litigant's rights by compelling plaintiff to pay one-half of the daughter's college expenses. Plaintiff filed a cross-motion asking the court to retroactively emancipate the parties' two children, terminate plaintiff's child support obligation as of the date of emancipation, compel reimbursement of overpayment of child support and award counsel fees.
Plaintiff claimed that, pursuant to the parties' PSA, their son was emancipated as of January 1, 2000 when he left Bergen Community College after one semester. Defendant claimed that their son had attended college for one full year, but did not contest that he was emancipated under the terms of the PSA after leaving college. Plaintiff continued paying child support for his son for ten years beyond the point when his son left college, until after the son was married and turned thirty years old. Plaintiff claimed also that their daughter was emancipated on June 1, 2009, after completing four years of college. Defendant maintained that the daughter had learning disabilities and therefore required five years to graduate. No documentation of any such disability was provided.
Plaintiff's counsel represented that plaintiff earns $50,000 to $52,000 annually and defendant provided evidence of her $27,000 annual salary.
Without a hearing, after reviewing the papers submitted by the parties and oral argument, the motion judge granted defendant's request that plaintiff pay one-half of the daughter's college costs as well as $2500 in counsel fees. The motion judge also granted plaintiff's request for emancipation of both children, but only as of July 1, 2010, the approximate date of defendant's motion.
Although represented by counsel who argued the motion, both parties participated in oral argument without being sworn in as witnesses. Defendant informed the court that plaintiff refused to consider their daughter's attendance at an out-of-state college either before or after the child's enrollment. Defendant also stated that this refusal caused the estrangement between plaintiff and their daughter. Plaintiff stated that he thought the child support he was providing for his emancipated son was going directly to the child. The support was garnished from his salary by the Probation Division. See N.J.S.A. 2A:17-56.13.
Plaintiff argues on appeal that the motion judge erred when he failed to enforce the specific and unambiguous provisions in the PSA concerning the children's emancipation and his obligation to contribute to their college education.
I
We acknowledge our general deference to factual findings made by Family Part judges when they are supported by "'adequate, substantial, credible evidence.'" Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citation and internal quotation marks omitted)). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. "Minimally adequate fact finding requires a discussion that demonstrates that the court has heard and addressed the relevant facts and claims under the controlling legal standards." Gordon v. Rozenwald, 380 N.J. Super. 55, 76-77 (App. Div. 2005). "A trial court's rulings in such matters are discretionary and not overturned unless the court abused its discretion, failed to consider controlling legal principles or made findings inconsistent with or unsupported by competent evidence." Id. at 76.
The motion judge's findings, however, were based solely on the parties' written submissions and oral argument. Thus, we do not owe the same degree of deference to the motion judge's fact finding as we would if the judge had made credibility findings after a plenary hearing. See P.B. v. T.H., 370 N.J. Super. 586, 601 (App. Div. 2004) ("Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility because, having heard the case, and seen and observed the witnesses, the trial court has a better perspective than a reviewing court in evaluating the veracity of witnesses."). The parties submitted sharply conflicting certifications regarding the issues decided by the court, including their disparate interpretation of the PSA.
To the extent that the motion judge relied on the parties' unsworn statements at oral argument, such reliance was misplaced. See N.J.R.E. 603, which requires that testimonial evidence be presented through witnesses who are either under oath or make an affirmation to tell the truth. See Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264 (App. Div. 2002). In addition, the motion judge should not have permitted the attorneys to make material factual representations as to the parties' incomes in lieu of sworn testimony from witnesses or other competent evidence. See id.
In determining whether to require contribution for college expenses from a non-custodial parent, courts should look to the twelve "Newburgh factors." Gac v. Gac, 186 N.J. 535, 543 (2006). The court should consider "all relevant factors," including, but not limited to:
Newburgh v. Arrigo, 88 N.J. 529, 545 (1982).
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(1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education;
(2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education;
(3) the amount of the contribution sought by the child for the cost of higher education;
(4) the ability of the parent to pay that cost;
(5) the relationship of the requested contribution to the kind of school or course of study sought by the child;
(6) the financial resources of both parents;
(7) the commitment to and aptitude of the child for the requested higher education;
(8) the financial resources of the child, including assets owned individually or held in custodianship or trust;
(9) the ability of the child to earn income during the school year or on vacation;
(10) the availability of financial aid in the form of college grants and loans;
(11) the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and
(12) the relationship of the education requested to any prior training and to the overall long-range goals of the child.
rNewburgh v. Arrigo, 88 N.J. 529, 545 (1982).]
In Gac, the Court noted that "the factors set forth in Newburgh . . . contemplate that a parent or child seeking contribution towards the expenses of higher education will make the request before the educational expenses are incurred." 186 N.J. at 546 (emphasis added). As such, "[t]he failure to do so will weigh heavily against the grant of a future application." Id. at 547. In Gac, as here, the father paid child support throughout college. The mother did not pursue contribution from the father until after their daughter's graduation, in response to his request to terminate his child support obligation. Id. at 539. The Court concluded that "those facts are significant and tip the scale in favor of denial of plaintiff's request for contribution." Id. at 547.
In Gotlib v. Gotlib, we applied the Gac holding to facts similar to those presented here. 399 N.J. Super. 295 (App. Div. 2008). We concluded that, when the motion is brought after the expenses are incurred, splitting college expenses in half between the plaintiff and the defendant without addressing the Newburgh factors "is not sustainable." Id. at 310. In Gotlib, the mother brought a motion seeking contribution from the father for college expenses "after these expenses had been incurred, thereby excluding him from the decision making process . . . ." Ibid.
Although the parties in Gotlib did not have a PSA, after trial their judgment of divorce stated:
34. Both parties shall contribute to the college costs of the children in accordance with appropriate legal standards.Because the trial court failed to address the Newburgh factors, we reversed the order directing the defendant to pay one-half of their children's education expenses and remanded the matter for further consideration. Id. at 310-11.
35. Both parents shall have full input on the college or other institution that the child will attend with the child involved.
[Id. at 307.]
Similarly, the motion judge here determined that plaintiff should contribute for college expenses without addressing the Newburgh factors. As Gac and Gotlib make very clear, the lateness of the application for contribution for college expenses should weigh heavily against the moving party. See Gac, supra, 186 N.J. at 547; Gotlib, supra, 399 N.J. Super. at 310. A plenary hearing is necessary to resolve the conflicting facts set forth by the parties that are relevant to the Newburgh factors, including the reasons for the estrangement between the father and daughter. See Gac, supra, 186 N.J. at 546; see also Moss v. Nedas, 289 N.J. Super. 352, 360 (App. Div. 1996) (finding the trial court did not abuse its discretion when concluding that the father should not be required to share college expenses because of his limited financial resources and the absence of any meaningful relationship between father and daughter).
A plenary hearing is also necessary in light of the parties' inability to agree on the meaning of terms in a written PSA. See Pacifico v. Pacifico, 190 N.J. 258, 266-67 (2007) (remanding for a plenary hearing where a PSA provided for a buyout of the marital home but did not specify the terms of pricing to which the parties disagreed); see also Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.), certif. denied, 142 N.J. 455 (1995). At the hearing the judge will have an opportunity to assess the credibility of the movant's assertions, as tested through the rigors of cross-examination. Eaton v. Grau, 368 N.J. Super. 215, 222 (App. Div. 2004).
II
The dispute between the parties centered primarily on the issue of child support as it relates to the date of emancipation. Child support may be terminated retroactive to the date of emancipation. Mahoney v. Pennell, 285 N.J. Super. 638 (App. Div. 1995). In Mahoney, we held that the anti-retroactive child support modification statute, N.J.S.A. 2A:17-56.23a, does not bar the elimination of arrearages based on emancipation. Mahoney v. Pennell, supra, 2 85 N.J. Super. at 643; see also Bowens v. Bowens, 286 N.J. Super. 70, 71 (App. Div. 1995). Here, the motion judge determined that plaintiff's child support payments for his son paid after the child left college were gratuitous and did not award any credit towards the payment of his daughter's college expenses. The judge acknowledged what was essentially undisputed; that the son was emancipated over ten years before, when he left college at age nineteen. Nonetheless, the judge emancipated the child as of July 1, 2010.
The contractual nature of matrimonial agreements has long been recognized in New Jersey. Pacifico, supra, 190 N.J. at 265 (citing Harrington, supra, 281 N.J. Super. at 46 (internal citations omitted)). As a general rule, a contract's terms should be enforced as the parties intended. Id. at 266. The PSA in this case clearly defines the circumstances intended by the parties to qualify as events of emancipation. Under the PSA's unambiguous terms, the son was emancipated when he stopped attending college. The daughter, on the other hand, was emancipated either when she graduated college in May 2010 or, as plaintiff argues, one year earlier upon completing her fourth year. The motion judge's failure to consider the terms of the PSA and, instead, to emancipate the children as of the date of the July 2010 motion is not sustainable on this record.
Therefore, on remand, after a plenary hearing, the court should enforce the terms of the PSA after hearing the sworn testimony of the parties concerning any disputed provisions and decide the appropriate date of emancipation for each child. The court must also decide what, if any, obligation plaintiff has to contribute to the daughter's college costs. If the court finds that plaintiff is obligated to contribute, it may then consider whether defendant's receipt of child support payments for ten years beyond the son's emancipation entitles plaintiff to a credit towards his portion of the daughter's college expense. To establish if plaintiff is due a credit under these circumstances, the court must resolve whether defendant would experience a windfall if she was permitted to keep the son's post-emancipation support payments as well as the daughter's college contribution.
A determination absolving plaintiff from any obligation to contribute to the daughter's college expenses does not automatically obligate defendant to repay the child support she received on behalf of the emancipated son. Reimbursement for over-payments on behalf of an unemancipated child is generally inappropriate because child support payments benefit the child. See e.g., J.S. v. L.S., 389 N.J. Super. 200, 205-06 (App. Div. 2006), certif. denied, 192 N.J. 295 (2007) (concluding that, even when the party seeking reimbursement was deceived into believing he was the child's biological father, support payments made prior to the results of the paternity test need not be repaid by the custodial mother so as to protect the welfare of the child); Guglielmo v. Guglielmo, 253 N.J. Super. 531, 546 (App. Div. 1992) (affirming trial court's denial of credit to defendant when he paid more than required because his agreed-upon child support payments were below the Child Support Guidelines for many years). Given the parties' conflicting positions concerning the facts surrounding the payments of support for their son, we cannot determine whether plaintiff is entitled to reimbursement for child support payments paid.
On remand, the court should consider whether the parties, by their actions, implicitly agreed to modify the PSA so that plaintiff's continued child support payments for the son were paid in lieu of a college contribution for the daughter. DeAngelis v. Rose, 320 N.J. Super. 263, 280 (App. Div. 1999) (stating that modification of an existing contract "can be proved . . . by the actions and conduct of the parties as long as the intention to modify is clear.").
III
Defendant requested $10,000 in counsel fees, including $5000 incurred to prepare the parties' Qualified Domestic Relations Order (QDRO). Because the PSA indicated that defendant would prepare the QDRO at her expense, the judge denied that portion of the request and awarded $2500, or one-half of the remaining $5000.
The court may award fees to any party in an action on a claim for support. R. 5:3-5(c). An award of fees is at the trial court's discretion, and the decision is reviewable under the abuse of discretion standard. Grau, supra, 368 N.J. Super. at 225. We should overturn the trial court's determination on fees "'on the rarest occasion,'" and only for "'a 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)). In awarding counsel fees, the court should consider the following factors:
(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.Even though the decision on fees is discretionary, the court must consider the above factors in making its determination. Mani v. Mani, 183 N.J. 70, 94 (2003); see Pressler & Verniero, Current N.J. Court Rules, comment 4.1 on R. 5:3-5 (2012). If deemed just, an award may be made in favor of either party, whether or not they prevailed. See Kingsdorf v.Kingsdorf, 351 N.J. Super. 144, 158 (App. Div. 2002).
[R. 5:3-5(c).]
The motion judge neither explored these factors nor gave reasons for his award of fees. R. 1:7-4(a); see also Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 1:7-4 (2012) (emphasizing that the Rule "requires findings to be made on all motions decided by written orders appealable as of right", and the "critical importance of that function"); Strahan, supra, 402 N.J. Super. at 310. The fee award should be reconsidered at the plenary hearing necessitated by our remand of the other issues.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION