Opinion
DOCKET NO. A-1112-11T1
02-05-2013
EUN H. CHUNG, Plaintiff-Appellant, v. PETER Y. CHUNG, Defendant-Respondent.
Michael K. McFadden, attorney for appellant. Bard L. Shober, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Hoffman.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FM-01-0986-08.
Michael K. McFadden, attorney for appellant.
Bard L. Shober, attorney for respondent. PER CURIAM
In this post-judgment matrimonial matter, plaintiff Eun H. Chung appeals from a September 23, 2011 order of the Family Part granting her motion to enforce litigant's rights regarding defendant's obligation to pay college expenses. Plaintiff argues that the trial court erred in granting her only limited relief. For the reasons that follow, we affirm.
I
The parties married in 1983 and had three children, C.C., born in 1984, P.C. born in 1986, and S.C., born in 1990. On August 25, 2009, the parties entered into a seventeen-page Property Settlement Agreement (PSA). A final judgment of divorce incorporating the PSA was entered on September 11, 2009.
Relevant to this appeal, the PSA required defendant to pay C.C.'s college loans in the amount of $53,079 and to pay sixty-six percent of S.C.'s college tuition and expenses. Regarding C.C.'s college loans, paragraph 10 of the PSA additionally provided:
It shall be [defendant's] obligation to either pay them off, or make the required monthly payments. Should [defendant] fail to pay any payment timely, [defendant] shall then be required to pay them in full, so as to avoid any damage to C.C.'s credit. [Defendant] shall pay 50% of C.C.'s final 12-15 credits to graduate from college.
In September 2010, plaintiff filed an enforcement motion after C.C.'s college loans went into default. On October 29, 2010, the Family Part granted plaintiff's motion and entered an order requiring defendant to pay C.C.'s bills for college loans in full within fifteen days after receiving the bills from plaintiff. The order stated that "in the event [defendant] fails to pay the bills in their entirety and in a timely manner, [plaintiff] shall submit the bills to the Court and the Court will enter a judgment in favor of [plaintiff] and against [defendant.]"
When C.C.'s college loans again went into default, plaintiff filed another motion in aid of litigants' rights. Specifically, plaintiff requested the entry of a judgment against defendant in the amount of $47,297.73 (representing the then-unpaid balance on C.C.'s college loans), as well as a $200 per week wage execution and the issuance of a bench warrant. Plaintiff also requested counsel fees.
Defendant opposed plaintiff's motion, asserting that he did not have the ability to borrow the monies necessary to pay the full amount then due on the loans. Defendant stated he made monthly payments in the first eight months of 2011. Defendant also said that he did not keep the payments current because plaintiff did not always send him the bills.
The bills were sent to C.C.'s post office box.
In support of his assertion that he was unable to pay the full amount due on the loans, defendant submitted a Federal Income Tax Return, which indicated that he had taxable income of $92,920 in 2010. Defendant also submitted a Case Information Statement (CIS), which indicated that he had monthly expenses of $4089.
Following oral argument, the court entered the order under review. The order stated that defendant must pay $47,297.73 for C.C.'s college loans. The court did not, however, require defendant to pay the entire amount immediately. The order stated, "Defendant will be required to make all overdue and future payments necessary in a timely manner[.]"
The order also denied plaintiff's application for a wage execution as well as plaintiff's application for issuance of a bench warrant; however, the order did provide for the issuance of a bench warrant if defendant failed to make loan payments for two consecutive months. The court also denied plaintiff's request for counsel fees, but noted that plaintiff could seek fees under the terms of the PSA.
II
New Jersey has a strong public policy favoring the enforcement of PSAs. These agreements are approached with the presumption that they are valid and enforceable, and they will be enforced if they are fair and equitable. Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995).
The basic contractual nature of matrimonial agreements has long been recognized. At the same time, the law grants particular leniency to agreements made in the domestic arena, thus allowing judges greater discretion when interpreting such agreements.
As a general rule, courts should enforce contracts as the parties intended. Similarly, it is a basic rule of contractual interpretation that a court must discern and implement the common intention of the parties. The court's role is to consider what is written in the context of the circumstances at the time of drafting and to apply a rational meaning in keeping with the expressed general purpose.
[Pacifico v. Pacifico, 190 N.J. 258, 265-66 (2007)(internal quotation marks and citations omitted).]
In addition to the court's responsibility for interpretation of these agreements, the "equitable authority" of the courts to modify orders incorporating property settlement agreements is "well established." Conforti v. Guliadis, 128 N.J. 318, 323 (1992). However, we will not draft new agreements for the parties. Massar, supra, 279 N.J. Super. at 93. Nor will we insert new terms into an agreement merely "because one party later suggests that a few changes would have made the agreement fairer." Dworkin v. Dworkin, 217 N.J. Super. 518, 523 (App. Div. 1987).
"[T]he law affords particular leniency to agreements made in the domestic arena[.]" Massar, supra, 279 N.J. Super. at 93. "Marital property settlement agreements 'involve far more than economic factors' and must serve the strong public and statutory purpose of ensuring fairness and equity in the dissolution of marriages." Conforti, supra, 128 N.J. at 323 (quoting Rothman v. Rothman, 65 N.J. 219, 229 (1974)). "Even when a divorce order incorporates agreements reached privately between the parties, such orders can be modified 'in light of all the facts' bearing on what is 'equitable and fair.'" Ibid. (quoting Smith v. Smith, 72 N.J. 350, 360 (1977)).
III
Plaintiff argues that the motion judge committed legal error by failing to strictly enforce the PSA, when he declined to order defendant to immediately pay the entire outstanding balance of C.C.'s school loan or enter a judgment against defendant in that amount. Plaintiff also claims the failure to award attorneys fees constituted error. Plaintiff contends the court improperly accepted at face value defendant's assertion that he could not afford to pay in one lump sum all of the monies due on the loans.
After careful review, we conclude the court did not abuse its discretion when it did not require immediate payment of all of the monies due on C.C.'s college loans. The court properly considered defendant's ability to pay, as well as the circumstances that led up to the default, in determining not to hold defendant to the letter of the PSA. While defendant's tax return indicates he has the ability to make monthly payments on the loans, the evidence indicates that payment of the entire balance was not feasible. The record shows that defendant has been making payments on the loans and that they were current when the motion was heard. The judge further noted that he was not provided with any evidence that the few missed payments had adversely affected C.C.'s credit.
We also find no mistaken exercise of discretion in the court's refusal to enter a judgment against defendant, which plaintiff could have enforced by compelling defendant to liquidate his assets.
Finally, we address plaintiff's challenge to the court's ruling on counsel fees. In making such decisions, a court considers the nine factors enumerated in Rule 5:3-5(c) in the exercise of its discretion. Guglielmo v. Guglielmo, 253 N.J. Super. 531, 544-45 (App. Div. 1992) (stating that "[u]nder the laws of New Jersey, the award of counsel fees and costs in a matrimonial action rests in the discretion of the trial court."). Of particular consequence are whether the party seeking payment is in financial need, the ability of the other party to pay, and if litigation was initiated in good-faith. Id. at 545. "[A] reviewing court will disturb a trial court's award of counsel fees 'only on the rarest of occasions, and then only because of a clear abuse of discretion.'" Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 386 (2009) (quoting Packard-Bamberger & Co., Inc. v. Collier, 167 N.J. 427, 444 (2001)).
We find no "clear abuse of discretion" in the trial court's decision to deny plaintiff's request for counsel fees. See Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008). The court specifically found that defendant "did not exercise bad faith" in the proceeding, and determined that an award of counsel fees was not otherwise warranted. Because plaintiff's moving papers did not indicate that plaintiff sought counsel fees pursuant to the PSA, the court specifically preserved for plaintiff "the option to make an application for counsel fees under paragraph 26 of the (PSA)."
Paragraph 26 of the PSA provides that if "either party defaults with respect to any payment[,]" the defaulting party will reimburse the other party for any and all attorney's fees incurred to enforce the agreement. The paragraph includes specific notice provisions to trigger the obligation to pay fees, which plaintiff's moving papers did not address.
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Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION