Opinion
DOCKET NO. A-4515-10T4
09-11-2012
W.P., Plaintiff-Respondent, v. B.F., Defendant-Appellant.
Brian P. Latimer argued the cause for appellant (Jacobowitz, Defino & Latimer, P.C., attorneys; Benjamin M. Hoffman, on the brief). Bettina E. Munson argued the cause for respondent (Lomurro, Davison, Eastman & Munoz, P.A., attorneys; Carrie A. Lumi, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Reisner and Hayden.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1284-98C.
Brian P. Latimer argued the cause for appellant (Jacobowitz, Defino & Latimer, P.C., attorneys; Benjamin M. Hoffman, on the brief).
Bettina E. Munson argued the cause for respondent (Lomurro, Davison, Eastman & Munoz, P.A., attorneys; Carrie A. Lumi, on the brief). PER CURIAM
In this post-judgment matrimonial matter, defendant B.F.appeals from the February 7, 2011 Family Part order granting the motion of plaintiff, W.P., to require defendant to reimburse him for past college expenses and allowing him to take dependency tax deductions for the parties' two younger children and denying her cross-motion to emancipate her middle son. She also appeals from the April 27, 2011 Family Part order denying her motion for reconsideration and requiring her to reimburse plaintiff's counsel fees. We affirm.
We use initials to protect the privacy of the children.
Plaintiff and defendant married in 1976 and divorced in 2000. They had three sons during their marriage, born in 1981, 1989 and 1992. The parties entered into a property settlement agreement (PSA), which was incorporated into the final judgment of divorce.
The PSA provided that "a college education shall consist of five (5) years as long as the child is considered a full-time student as defined by the institution he attends." Additionally, the PSA provided that "the five year period may be extended if an extension is due to an illness or disability of the child, or a change in a child's curriculum requiring additional courses." Further, the PSA provided for defendant to take the youngest child as a dependency tax deduction and plaintiff to claim the middle child.
The parties' oldest child was emancipated in 2003. At the time of the order under appeal the two younger children were over the age of eighteen and attending college. Since 2007, the youngest child has lived with plaintiff, and the middle child has lived with him since 2008. Defendant is required to pay child support to plaintiff. Plaintiff is a veterinarian who has substantial assets. Defendant also has assets but is currently unemployed and receiving unemployment benefits.
On December 8, 2010, plaintiff filed a motion to enforce litigant's rights. Among other relief, plaintiff sought reimbursement of previously incurred college expenses, designation as parent of primary residence of the two younger children, and permission to claim the youngest child as a dependency deduction on his income tax. On January 14, 2011, defendant filed a cross-motion requesting emancipation of the middle child and a decrease or termination of child support. Defendant alleged that their middle son was not a full-time student at Rutgers so under the PSA she was not required to pay her share of his college expenses. She also alleged that her child support must be reduced as she was unemployed and had numerous health issues that prevent her from obtaining gainful employment.
In his reply certification, plaintiff contended that their son is a full-time student and that the son's difficulties in college resulted from chaos created by defendant's actions. Additionally, he submitted that his son's education had suffered from defendant's failure to timely pay her share of the tuition, resulting in the son being forced to register for classes late. Since his major was engineering, he could often only get into classes that were too challenging for him. Further, plaintiff argued that a reduction in child support was not warranted as defendant was voluntarily unemployed.
On February 7, 2011, Judge Michael A. Guadagno denied defendant's request to emancipate the middle son without prejudice. He pointed out that defendant had not provided proof that her son was not a full-time student. He observed that even if defendant's claim that her son was performing poorly was accurate, poor performance in school, standing alone, is not a sufficient reason to justify emancipation. The judge ordered defendant to reimburse plaintiff $9,297 for the college expenses already incurred, but he reduced the percentage of defendant's future contribution to college expenses from 80% to 50% based upon her current financial condition. He also denied defendant's request for a reduction in child support, finding that she had not demonstrated a permanent incapacity to work or shown that her unemployment was not temporary.
In addition, the judge granted plaintiff's request to change the PSA to allow him to take the dependency tax deduction for his younger son in addition to his middle son. The judge found that plaintiff had demonstrated that he qualified for the deduction under the Internal Revenue Code as he had been the de facto parent of primary residence and had financially supported both sons for many years. Moreover, the judge found the change in residency constituted a change of circumstance since the time of the PSA. However, the judge denied plaintiff's request for defendant to pay his attorneys fee.
On March 1, 2011, defendant filed a motion for reconsideration of that part of the judge's order that denied emancipation, ordered reimbursement for past college expenses, and permitted plaintiff to take the youngest son as a tax deduction. In her motion papers, defendant submitted the middle son's college transcripts, which confirmed her claim that he was not doing well in school. For example, in Spring 2010, he was registered as a full-time student, but he withdrew from one class, failed two classes and received a B in the remaining class. In Fall 2010, he again registered as a full-time student, then withdrew from one class and received a B+, B, D, and F in the other four classes. Over the last three semesters, the son had only accumulated seventeen credits.
Defendant also argued that she should not have to pay the full amount of the past tuition expenses. Defendant contended that her mother, the son's maternal grandmother, had given the son five thousand dollars for college expenses. Defendant wanted those funds to be credited toward her contribution required by the PSA. Defendant also requested a further readjustment of the percentage of the parties' contribution to college based upon their disparity in income.
Plaintiff opposed defendant's motion and filed a cross-motion for sanctions and counsel fees. He argued that if defendant received credit for her mother's contributions to the son's college expenses, he should be allowed to receive credit for the $60,000 his mother had contributed to their sons' education. Plaintiff also argued that under Rutgers' policy his son was considered a full-time student when he registered every semester for a full load of classes, thus fulfilling the PSA requirement. He pointed out that his son had been struggling with a difficult engineering major but was planning to transfer to the less strenuous arts and sciences program.
On April 27, 2011, Judge Guadagno denied defendant's motion for reconsideration, finding it was frivolous, without legal basis, and not in compliance with Rule 4:49 or 4:50. He reasoned that the motion repeated the identical arguments in the original motion, which he had rejected. The only "newly discovered" evidence was defendant's mother's check, dated February 1, 2010, which was available when the original motion was filed. As a result, he granted plaintiff's motion for counsel fees of $4,298.
This appeal followed.
On appeal, defendant raises the following contentions for our consideration.
POINT I - THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S NOTICE OF MOTION FOR RECONSIDERATION ON THE GROUNDS OF BEING PROCEDURALLY DEFICIENT AS IN ACCORDANCE WITH THE COURT RULES THE DEFENDANT HAS TWENTY DAYS FROM RECEIPT OF THE ORDER TO FILE A MOTION FOR RECONSIDERATION AND IN THE CASE AT HAND THE DEFENDANT'S MOTION FOR RECONSIDERATION WAS FILED WITHIN THE TWENTY DAY TIME FRAME PERMITTED BY THE COURT RULES.
POINT II - THE TRIAL COURT ERRED BY NOT EMANCIPATING THE PARTIES' [MIDDLE] SON [] AS HE IS OVER THE AGE OF EIGHTEEN, HAS MOVED BEYOND THE SPHERE OF INFLUENCE, HAS ONLY RECEIVED 17 CREDITS OVER THE LAST THREE SEMESTERS OF COLLEGE, AND HAS FAILED TO DEMONSTRATE THAT HE IS MAKING A GOOD FAITH EFFORT IN HIS ACADEMIC PROGRAM.
POINT III - THE TRIAL COURT ERRED IN PERMITTING THE PLAINTIFF TO CLAIM THE
PARTIES' [YOUNGEST] SON [] AS A TAX DEPENDENCY EXEMPTION ON HIS TAX RETURNS AS THAT RESULTED IN THE PLAINTIFF BEING ABLE TO CLAIM BOTH CHILDREN AS TAX DEPENDENCY EXEMPTIONS, WHICH IS CONTRARY TO THE TERMS OF THE PARTIES' FINAL AGREEMENT DATED JUNE 5, 2000 AND THERE HAS BEEN NO CHANGE IN CIRCUMSTANCES WARRANTING A MODIFICATION OF THE TERMS OF THE PARTIES' FINAL AGREEMENT AS IT RELATES TO THE ISSUE OF TAX DEPENDENCY EXEMPTIONS.
POINT IV - THE TRIAL COURT ERRED IN GRANTING THE PLAINTIFF'S REQUEST TO BE REIMBURSED IN THE AMOUNT OF $9,297.45 REPRESENTING THE PARTIES' SON'S [] COLLEGE EXPENSES FOR THE SPRING OF 2010 AND FALL OF 2010 SEMESTERS AS IN ACCORDANCE WITH THE PARTIES' FINAL AGREEMENT DATED JUNE 5, 2000 THE PARTIES ARE OBLIGATED TO CONTRIBUTE TOWARDS THE COSTS OF THEIR CHILDREN'S COLLEGE EDUCATION AS LONG AS THEY ARE CONSIDERED A FULL-TIME STUDENT AND BASED UPON [THE SON'S] TRANSCRIPT HE WAS NOT A FULL-TIME STUDENT AS HE ONLY RECEIVED THREE CREDITS IN THE SPRING OF 2010 AND SEVEN CREDITS IN THE FALL OF 2010.
POINT V - THE TRIAL COURT ERRED BY NOT REDUCING THE AMOUNT OF $9,297.45 WHICH THE DEFENDANT WAS ORDERED TO REIMBURSE THE PLAINTIFF BY THE AMOUNT OF $5,000,00 WHICH REPRESENTED A PAYMENT MADE IN FEBRUARY OF 2010 BY THE DEFENDANT'S MOTHER DIRECTLY TO [THE SON] ON BEHALF OF THE DEFENDANT.
POINT VI - THE TRIAL COURT ERRED IN ITS ORDER DATED APRIL 27, 2011 WHEN AWARDING THE PLAINTIFF COUNSEL FEES, AS THE DEFENDANT'S MOTION WAS NOT FRIVOLOUS, WAS FILED IN GOOD FAITH, THE DEFENDANT HAS NO ABILITY TO PAY THE COUNSEL FEES OF THE PLAINTIFF AND THE TRIAL COURT FAILED TO PROVIDE ANY FINDINGS OF FACT AND CONCLUSIONS OF LAW AS TO HOW IT DERIVED THE COUNSEL FEE AWARD AS THERE WAS NO ANALYSIS OF THE FACTORS SET FORTH IN R. 5:3-5(C).
We begin with some well-established principles. In general, a trial court's factual findings will be binding on appeal so long as they are "supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Furthermore, since the Family Part has special expertise in family matters and has had the opportunity to see and hear the witnesses testify firsthand, its fact-finding should be accorded particular deference on appeal. Id. at 413. However, the Family Part judge's "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference" on appeal. Manalapan Realty v. Manalapan Twp. Committee, 140 N.J. 366, 378 (1995).
In reviewing a trial judge's decisions, the question is not whether this court would come to a different conclusion were it the trial tribunal. N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002). We intervene only when convinced that the trial judge's factual findings "'are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort, supra, 65 N.J. at 484).
We have carefully reviewed the record and have determined that Judge Guadagno did not abuse his discretion in granting plaintiff's requested relief and denying defendant's cross-motion and motion for reconsideration. We affirm substantially based upon the judge's well-reasoned written opinion of February 7, 2011 and oral opinion of April 27, 2011. We add the following brief comments.
When a child reaches the age of emancipation, the point at which he or she is expected to be self-supporting, the parent is relieved of his or her obligation to support the child. Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997). There is no fixed time when a child is deemed emancipated. Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). Rather, a court must examine all the relevant circumstances to determine whether the child is emancipated. Ibid. The critical question is "whether the child has moved 'beyond the sphere of influence and responsibility exercised by a parent and obtains as independent status of his or her own.'" Filippone, supra, 304 N.J. Super. at 308 (App. Div. 1997)(quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)). One indication that a child is not yet emancipated is that he or she is a full-time student. Newburgh, supra, 88 N.J. at 543-44; Limpert v. Limpert, 119 N.J. Super. 438, 441 (App. Div. 1972).
Here, the parties agreed in the PSA that their children would not be emancipated while enrolled full-time in college. In reviewing all the circumstances, Judge Guadagno determined that the son was still a full-time student and his lackluster performance in a very difficult major, made even more difficult by the mother's late tuition payments, did not make him a part time student. We find no abuse of discretion here.
Defendant also argued that the judge erred in changing the parties' agreement in the PSA by allowing plaintiff to take both children as dependency tax deductions. We disagree. Family Court orders are always subject to review and modification based upon changed circumstances, even when modification requires overriding the express terms of the parties' PSA. Lepis v. Lepis, 83 N.J. 139, 146 (1980); Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006); N.J.S.A. 2A:34-23. The Family Part judge has sound discretion regarding whether or not to allow modification. Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). Here, the record shows that at the time of the PSA the parties did not contemplate that the children would both be living with plaintiff since at least 2008. We are satisfied that the judge did not abuse his discretion by finding a change in circumstance that justified allowing plaintiff to take the tax deduction.
We have considered defendant's remaining contentions and find they are without sufficient merit to warrant further discussion here. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION