Opinion
DOCKET NO. A-0826-14T1
08-09-2016
JENNIFER ANNUNZIATO, Plaintiff-Respondent, v. TIMOTHY O'SHEA, Defendant-Appellant.
Stephanie C. Hunnell argued the cause for appellant (Hunnell Law Firm, attorneys; Ryan Westerman, on the brief). Irene Shor argued the cause for respondent (Amdur, Maggs & Shor, attorneys; Marguerite A. Maggs, Laura Wishart Dugan, and Ms. Shor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges O'Connor and Suter. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1151-08. Stephanie C. Hunnell argued the cause for appellant (Hunnell Law Firm, attorneys; Ryan Westerman, on the brief). Irene Shor argued the cause for respondent (Amdur, Maggs & Shor, attorneys; Marguerite A. Maggs, Laura Wishart Dugan, and Ms. Shor, on the brief). PER CURIAM
Timothy O'Shea appeals a June 13, 2014 Family Division order that denied his motion for a modification of child support, reimbursement of certain dental expenses and counsel fees, and an August 26, 2014 Family Division order that denied without prejudice his request for contribution toward college expenses. We reverse and remand on the issue of child support and remand on the issue of college contribution, but affirm as to dental expenses and attorney's fees.
I.
Timothy O'Shea (father) and Jennifer Annunziato (mother) were divorced in 2009. They have four children; two were over eighteen at the time father filed for the relief requested here and two were minors. Of the children over eighteen, one, John, was a full-time college student who was living with his grandparents. The other "adult" child, Joseph, is by all accounts severely disabled, requiring full-time care, and the parties agreed when they divorced he would never become emancipated. The minor children and Joseph reside with mother.
The children's names are fictionalized to maintain their privacy.
Under the parties' matrimonial settlement agreement (MSA), father paid child support that upwardly deviated from the Child Support Guidelines (Guidelines) by $50 per week to reflect the additional expenses mother incurred for Joseph's care. In October 2011, after mother remarried and the parties agreed that alimony would be terminated, they entered into a consent order that significantly increased father's weekly child support obligation. The consent order continued to upwardly deviate from the Guidelines by $50 per week, but because John was attending college, father's weekly child support obligation was reduced by $24 per week. The parties agreed under the consent order, to "re-address the issue of child support . . . on August 1, 2012." By that time, Joseph would be eighteen, mother could make application for Joseph for Social Security benefits and the parties would "re-evaluate [father's] child support obligation . . . taking [Joseph's] social security income into consideration[.]"
On November 15, 2013, father filed the underlying application in which, among other things, he requested a reevaluation of child support in accordance with the October 2011 consent order and suggested that Joseph's child support should be zero in order to maximize his Social Security benefits. Mother agreed there should be a re-examination, but sought an upward modification of child support, the exclusion of Joseph's Social Security benefits from consideration and a forensic examination of father's income.
Under their MSA, the parties agreed they both had "an obligation to contribute to a college education for their children," and that the contribution would be "in accordance with their ability to pay[.]" Father agreed under the MSA to pay all associated costs for John's attendance at Brookdale College after the application of scholarships, loans and grants. John then transferred to Monmouth University. Under the October 2011 consent order, father agreed to pay up to $10,000 for the first year, but the parties also agreed to "re-address the issue of . . . [mother's] contribution to [John's] post high school education on August 1, 2012." It is not disputed that mother and John no longer had any relationship, but the parties differed as to whether mother was consulted on John's decision to attend Monmouth University or was kept apprised of John's progress there.
Under the parties' MSA, the parties were to split equally the "reasonable and necessary uncovered medical, dental and pharmaceutical costs" for the four children including any "orthodontic" care. Father's November 2013 motion requested contribution from mother for the cost of John's dental care, which totaled $3,851 for a replacement crown and veneers. Father contended the veneers were medically necessary because the parties' divorce had disrupted John's prior orthodontic care. Mother opposed payment for the veneers, viewing them as cosmetic. She also sought payment from father toward the other children's out-of-pocket medical expenses, which included Joseph's care and that of one of the minor children who had developed a serious medical condition.
Father's November 2013 motion requested attorney's fees under the MSA, which provided a defaulting party would "indemnify the other for all reasonable expenses and . . . attorney's fees incurred in successfully enforcing this Agreement."
In a written decision and order dated June 13, 2014, the Family Division judge denied father's request to remove Joseph from his child support obligation, but did not otherwise recalculate child support for the children. With respect to college expenses, the judge reviewed various factors, concluding that mother "should not be compelled to contribute to [John's] college costs" and that she "shall not be responsible for college contributions." However, the court then reserved on the issue of mother's contribution to John's college expenses. Because of "conflicting information regarding college contribution" and to be able to "determine the college contributions going forward," the judge ordered both parties to provide tax returns for tax years 2010 to 2014, a current case information statement and any financial documentation related to John's college attendance on or before July 15, 2014. The parties were given the opportunity to submit a "position paper" and to advise if they waived the option of a plenary hearing.
The Family Division judge granted mother's application for father to reimburse her for 50% of the children's medical expenses, and found the parties were responsible to pay for John's dental treatment as long as it was not cosmetic in nature. Father was ordered to pay $2680.85 to mother, which order implicitly excluded reimbursement for the veneers.
The judge denied attorney's fees for both parties, finding both "in violation of prior orders." Although defendant was "in a better position to pay counsel fees," he also "should have been aware . . . that some of his requested relief could not be granted by this Court."
When neither party submitted any of the required information on college expenses by July 15, 2014, the court entered an order on August 26, 2014 that denied without prejudice father's request to have mother contribute to John's college costs.
Father appeals from the portions of these Family Division orders that concern child support, college expenses, medical expenses and attorney's fees.
II.
We are constrained to reverse and remand the Family Division judge's decision on child support. The parties agreed in their 2011 consent order that child support would be reexamined as of August 1, 2012. See Dolce v. Dolce, 383 N.J. Super. 11, 20 (App. Div. 2006) (alteration in original) (quoting Petersen v. Petersen, 85 N.J. 638, 642 (1981)) (providing that settlement agreements in matrimonial matters "'[are] entitled to considerable weight with respect to their validity and enforceability' in equity, provided they are fair and just"). Additionally, child support "may be revised and altered by the court from time to time as circumstances may require." N.J.S.A. 2A:34-23. Although we agree that the reexamination of child support should not be retroactive prior to November 8, 2013 when father made his application, N.J.S.A. 2A:17-56.23a, by the time father did apply for a modification, Joseph had turned eighteen and would be considered "emancipated" but for his disabilities, and John was in college. These changed circumstances warranted a review. Lepis v. Lepis, 83 N.J. 139, 146 (1980).
The prior child support obligation was calculated under the Guidelines with three children being allocated to mother and one to father. The parties then netted those amounts and added $50 for Joseph's additional expenses. A Guidelines calculation was no longer appropriate. Joseph's support was required to be calculated utilizing the statutory factors set forth in N.J.S.A. 2A:34-23(a). Those same factors also needed to be examined for John's support for the period he remained in college full time. See Jacoby v. Jacoby, 427 N.J. Super. 109, 121 (App. Div. 2012) (first alteration in original) (quoting Raynor v. Raynor, 319 N.J. Super. 591, 614 (App. Div. 1999)) ("The [G]uidelines are not applicable when determining . . . child support of unemancipated college students[.]"). Child support for the two remaining minor children required application of the Guidelines. This analysis, using the Guidelines and the statutory factors, simply was not undertaken by the court and it was error not to do so.
The parties raise an issue about the inclusion of Social Security in the court's analysis of child support. Supplemental Security Income (SSI) benefits ordinarily are excluded from the calculation of child support under the Guidelines. However, the parties agreed in their consent order to consider Social Security benefits. Moreover, the child's "eligibility for public benefits" is a factor for consideration under N.J.S.A. 2A:34-23. There is no dispute Joseph receives SSI, which is a "means-tested" benefit based on the "resources of the recipient" and that these benefits "should not be deducted from the parent's child support obligation." Gifford v. Benjamin, 383 N.J. Super. 516, 519 (App. Div. 2006). --------
We also remand on the issue of college contribution. The court's decision about mother's responsibility for college contribution was inconsistent. On the one hand, the court concluded mother was not responsible for college costs based on an analysis of the factors under Newburgh v. Arrigo, 88 N.J. 529, 545 (1982), and Gac v. Gac, 186 N.J. 535, 546-47 (2006). However, the court then "reserved" on the issue of college contribution, ordering the exchange of financial information, including tax returns from 2010 to 2014 for "future" college contribution. By that time, however, which was June 2014, John had graduated from college. Both parties acknowledged failing to submit the required information by July 15, 2014. Without the financial information requested, especially if there is a question whether a parent has the ability to pay, the court could not have fully analyzed the Newburgh factors. Then, when the ordered financial information was not provided to the court, it denied "without prejudice" the requested contribution. The court needed to be clear in determining and explaining what reimbursement was sought by father, and what contribution, if any, was required by mother rather than simply denying the application without prejudice. We remand to the Family Division judge on this issue to provide reasons for why it merely disposed of the matter by denying it without prejudice and to clarify its ruling.
We agree with the trial court that father did not provide the financial information the court had requested. He provided redacted and unfiled tax returns, not his actual tax returns. On remand, if necessary, the court shall request updated information from the parties.
We agree with the court's analysis of the dental bills, which requires little comment. Father did not provide any support from an expert justifying his position that the dental veneers constituted "reasonable and necessary" dental expenses and thus, they were properly excluded from reimbursement. As for the court's decision to deny attorney's fees, we are satisfied the court appropriately took into consideration the relevant factors under Rule 5:3-5(c) in deciding not to award fees.
Affirmed in part, reversed and remanded on the issue of child support and remanded on the issue of college contribution. 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