Opinion
DOCKET NO. A-5899-12T3
04-27-2015
BERNIER LAUREDAN, Plaintiff-Appellant, v. GERTRUDE LAUREDAN, Defendant-Respondent.
Bernier Lauredan, appellant pro se. Minion & Sherman, attorneys for respondent (Stuart D. Minion, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Hoffman. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-24-99. Bernier Lauredan, appellant pro se. Minion & Sherman, attorneys for respondent (Stuart D. Minion, on the brief). PER CURIAM
Plaintiff Bernier Lauredan appeals from an order entered by the Family Part on June 28, 2013, which determined that he owes defendant Gertrude Lauredan $9,091.72 as his contribution to their children's college expenses. The order also granted defendant's motion for counsel fees, awarding defendant $36,669.85. We affirm.
I.
Plaintiff and defendant married in 1985, and a daughter and a son were born of the marriage. The parties divorced in 1992, in a dual final judgment of divorce. This divorce judgment granted defendant residential custody of the children and ordered plaintiff to pay child support in the amount of $400 per week.
The daughter entered college in 2003 and graduated in 2008, and the son graduated from college in 2009. The divorce judgment did not address the issue of college expenses, but in 2004, an order was entered requiring plaintiff to pay one-half of the daughter's net college costs after the deduction of loans and scholarships.
Plaintiff, a physician, stopped paying child support for both children in May 2010. He later sought retroactive emancipation of the children to the time of their graduation from college. In December 2010, the trial court entered an order emancipating the son, effective June 1, 2009, and ordered the parties into mediation to attempt to resolve the issue of the daughter's emancipation date. This mediation never occurred.
Plaintiff then filed a further application in May 2011, to address the issue of the daughter's emancipation and to seek a refund of child support overpayments. Defendant filed a cross-motion requesting enforcement of the order that required plaintiff to pay for one-half of the children's college tuition and expenses.
In July 2011, the trial judge issued an order emancipating the daughter and terminating child support for her, effective September 1, 2009, and required defendant to reimburse plaintiff a total of $16,800 in child support overpayments for both children. The judge also issued a second order, requiring plaintiff "to pay for [one-]half of children's college tuition and expenses."
On a previous appeal, we affirmed the July 2011 order regarding the date of the daughter's emancipation, but reversed the order concerning college expenses because the court failed to specifically address defendant's application for costs regarding the daughter's last three years of college and the son's four years of college. Lauredan v. Lauredan, No. A-0155-11 (App. Div. Oct. 19, 2012) (slip op. at 6-7, 10-11). Therefore, we remanded for an evidentiary hearing regarding the children's college expenses, and the amounts each party owed. Id. at 10-11.
On June 14, 2013, the trial court held a plenary hearing on the remanded issues, limited to determining what each party had paid and owed for the children's college expenses. Defendant testified regarding exhibits, including spreadsheets and checks, that listed the payments she had made for the children's college expenses. These payments included tuition and items defendant bought for the children. Defendant also testified that she had co-signed loans for the children.
The judge considered the parties' submitted proofs to determine what could be credited towards college costs. He stated that defendant's payments towards her children's loans on which she co-signed were not entitled to credit, since we held on appeal that she was entitled to one-half of college tuition, after loans and scholarships. The judge, however, credited payments towards tutoring and books because they were appropriate expenses "relative to learning." He also stated that plaintiff's direct payments to the children could not be credited, and ordered an audit.
On June 28, 2013, the judge entered an order, with an attached statement of reasons, ordering plaintiff to pay defendant $9,091.72 as his contribution to the children's college expenses. The judge additionally granted defendant's application for counsel fees, and ordered plaintiff to pay defendant's counsel $36,669.85.
In his statement of reasons, the judge stated that the $33,279.01 sought by defendant for college costs contribution included $2,540.53 in payments for the children's loans, $540.53 of "unrelated . . . college expenses," and $89 in parking tickets that did not qualify for credit. The judge also addressed the updated audit and determined that it revealed defendant owed plaintiff a total of $16,895.54 for overpayment of child support, which entitled plaintiff to another $895.54 credit.
After listing the payments that plaintiff submitted as his contributions, the judge denied giving him credit for car payments, television and computer purchases, and amounts paid directly to the children. He found that the additional proofs submitted by plaintiff indicated that he paid an additional $2500 to the son's college in January 2007, and another $3250 in August 2007. Thus, the trial judge concluded that plaintiff owed defendant $9,091.72, after crediting the overpayment of child support and his other payments.
Regarding the application for counsel fees, the judge found that it was "abundantly clear that [p]laintiff . . . acted in bad faith and ha[d] the wherewithal to contribute to the fees incurred by the [d]efendant." After examining the parties' financial documents, the judge found that defendant's "financial situation is dire whereas [p]laintiff enjoys a substantial income." He therefore concluded that plaintiff should bear the costs of defendant's legal fees in the amount of $36,669.85.
II.
On appeal, plaintiff argues that the motion judge erred by (1) awarding defendant $9,091.72; (2) awarding defendant $36,669.85 in counsel fees; (3) failing to refer defendant and her counsel to the appropriate authorities for allegedly filing a false tax return; and (4) failing to vacate orders entered on July 28, 2011, September 15, 2004, and July 24, 2001.
We first note the standard of review that applies to our consideration of defendant's arguments. Family Part judges have "special jurisdiction and expertise in family matters[.]" Cesare v. Cesare, 154 N.J. 394, 413 (1998). A trial court's findings of fact "are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Thus, we will not disturb a child support decision unless "it is 'manifestly unreasonable, arbitrary, or clearly contrary to reason or to the evidence, or the result of whim or caprice.'" Raynor v. Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999) (quoting DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976)).
We reject plaintiff's contention that the motion judge erroneously ordered him to pay defendant $9,091.72 for the children's college expenses. Plaintiff argues that defendant claimed tuition payments that she did not actually make, and that the judge improperly disregarded two of his checks and electronic payments that should have been credited.
Plaintiff also relies on Gac v. Gac, 186 N.J. 535 (2006), asserting that defendant was too late in seeking reimbursement for the son's college expenses, four years after he graduated. Plaintiff's reliance is misplaced, however, as the only issue to be determined by the judge on remand was what amount plaintiff owed to defendant for college expenses, not whether defendant was entitled to contribution. Lauredan, supra, slip op. at 11. Plaintiff's obligation to contribute had already been decided.
We conclude the judge properly determined plaintiff owed defendant $9,091.72, and his decision was supported by sufficient credible evidence in the record. The judge questioned defendant on her submitted proofs, ordered an audit, and elaborated on his decisions of what payments would be credited towards college costs, both during the hearing and in his written statement of reasons. The judge specified which payments fell outside the scope of college expenses, such as defendant's payments towards loans and plaintiff's checks paid directly to the children. Therefore, the judge did not err in awarding defendant $9,091.72 for the children's college expenses.
Plaintiff also contends that the judge erred in awarding defendant counsel fees. He asserts that he has two children in college and one in high school, and has experienced a decrease in his income since 2011. He also argues that defendant has unclean hands.
Attorneys' fees may be awarded in the Family Part. R. 4:42-9(a)(1). When considering an application for such fees, the court should consider the following:
(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."[T]he award of counsel fees and costs in a matrimonial action rests in the discretion of the court." Williams v. Williams, 59 N.J. 229, 233 (1971). Moreover, a trial court's determination regarding the award of counsel fees "will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion." Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001) (citation and internal quotation marks omitted).
[R. 5:3-5(c).]
We discern no reason to disturb the judge's award of counsel fees. The judge examined the parties' financial circumstances, noted plaintiff's bad faith, and determined that defendant's counsel fees were fair and reasonable. Additionally, plaintiff's arguments regarding defendant's unclean hands are unsupported by the record. Therefore, we are convinced that the court's decision was not an abuse of discretion.
Plaintiff additionally asserts that the trial judge should have referred defendant and her counsel to the appropriate authorities because she allegedly filed a false tax return. This allegation lacks merit. In 2004, during the hearing, the trial judge noted that defendant made errors on her tax return but never determined that defendant filed a fraudulent return. Therefore, the judge on remand did not err when he did not refer defendant or her counsel to the taxing authorities.
Finally, plaintiff argues that the trial judge should have vacated final orders dated July 28, 2011; September 15, 2004; and July 24, 2001. These arguments are untimely and are without merit. See R. 2:4-1(a) ("Appeals from final judgments of courts . . . shall be taken within 45 days of their entry.").
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION