Opinion
DOCKET NO. A-2506-14T4
06-03-2016
DONNA DEQUINA, Plaintiff-Respondent, v. GIL R. RAMOS, Defendant-Appellant.
Gil R. Ramos, appellant pro se. Donna Dequina, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Manahan. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM-09-215-00. Gil R. Ramos, appellant pro se. Donna Dequina, respondent pro se. PER CURIAM
Defendant Gil Ramos appeals from two orders, both dated December 12, 2014. In the first order, the motion judge entered a judgment against defendant in the amount of $35,796 for his youngest daughter's outstanding high school and college tuition costs and expenses. In the second order, a judgment was entered against defendant in the amount of $87,703 for his three children's outstanding college student loans. We affirm, but exercise original jurisdiction to amend the support amounts entered in the first December 12, 2014 order.
I.
We recite the extensive case history for purpose of both clarity and context. Plaintiff and defendant were married on January 19, 1979. The parties had three children together: H.R., K.R., and L.R. Plaintiff filed for divorce on June 30, 1999. A final judgment of divorce, which included a property settlement agreement (PSA), was entered on December 6, 1999.
The PSA provides in pertinent part:
ARTICLE I
SUPPORT AND MAINTENANCE OF HUSBAND AND WIFE
1. RESTITUTION TO WIFE.
A. Husband shall pay to wife for her support of husband through his many years of schooling the one time, non-taxable lump sum of [$50,000]. This amount may not be changed for any reason and shall be entered as a judgment against husband. It shall also be non[-]dischargeable in bankruptcy by the husband.
B. The wife worked at a menial job for a long period of time to be in a position to secure her green card. By doing so, she enabled the husband to secure his green card. The husband shall pay the wife the one time, non-taxable lump sum of [$5000]. This amount may not be changed for any reason
and shall be entered as a judgment against husband.
C. The total amount of $55,000 shall be entered as a judgment against husband with judgment rate interest running from June 1, 1998. The judgment shall be discharged with a warrant to satisfy upon husband's satisfaction of all obligations per Article II, paragraph 3, or upon full payment.
. . . .
4. TERMINATION OF OBLIGATION.
Husband's obligation to make payments for the support and maintenance of the children in accordance with paragraphs 1 and 3 of this Article shall terminate for each child as that child is emancipated, which shall be defined as occurring at the happening of any one of the following seven events:
(a) Reaching the age of eighteen (18) years or completion of a full-time program of study ([e.g.], college or vocational school)[,] whichever last occurs;
. . . .
(g) Graduation from college or vocational school but in no event shall child support continue past the [twenty-third] birthday of the child.
ARTICLE II
CUSTODY, SUPPORT AND MAINTENANCE OF CHILDREN
. . . .
3. COLLEGE/VOCATIONAL SCHOOL[.]
A. It is expected that the children will go to college or vocational school. The tuition, room, board and miscellaneous expenses for [H.R.] shall be shared equally. [Sixty-five percent] of the total expenses for [K.R.] and [L.R.] shall be paid by husband.
. . . .
C. [Sixty-five percent] of the total expenses for [K.R.] and [L.R.] shall be paid by husband.
Each child shall have the obligation to apply for loans, scholarships and grants. If [H.R.] receives loans, the parties shall repay the loans equally. If [K.R.] and [L.R.] receive loans, husband shall be 65% responsible for repayment of same and the children would have a right to enforce this agreement against husband. The consideration for husband paying 65% of the total expenses for [K.R.] and [L.R.] is wife waiving her restitution. The husband and wife had agreed that wife was entitled to a $55,000 non-taxable immediate payment to her in 1998. She is waiving this and cannot resurrect this unless husband does not bear his obligation for [K.R.] and [L.R.] If he does not, wife shall have a
judgment against husband for $55,000 plus interest from June 1998. No credit against the amount shall be given for payments made by husband for school.
On June 30, 2003, judgment was entered against defendant in the amount of $55,000 for failure to pay child support and alimony obligations. The order referenced the obligations as "equitable [distribution]" under the PSA. Interest in the amount of $19,617 was calculated in an order dated March 16, 2006.
Although the record is not clear on this point, it appears defendant paid $77,498 in support as a result of a 2006 audit. This figure presumably included the PSA's equitable distribution judgment of $55,000 plus $19,617 in interest (PSA's equitable distribution judgment). Subsequent to a second audit in 2008, it was determined that defendant's support obligation in 2006 totaled $66,499, and that the inclusion of the PSA's equitable distribution judgment in the 2006 audit was in error. As such, defendant overpaid support by $8118. In resolution thereof, an order dated July 25, 2008, was entered which held:
[Hudson County Probation Division (HCPD)] shall hold the amount of $74,617 as a credit for [defendant] until 2014[.]
[Plaintiff] owes [defendant] $8118 in 2014 if the $55,000 ([plus] interest) judgment is not enacted.
Today [defendant] owes [plaintiff] the amount of $269 as an offset of the $6390 he owes her for school [and] med.
[Plaintiff's] bills for [H.R.] were $6190 - in college expenses[.]
Defendant filed a motion to reconsider the July 25, 2008 order. In an order dated September 19, 2008, the judge held:
Motion for reconsideration presented by [defendant] regarding the imposition of $74,617 [is] denied for the reasons placed upon the record (order of [July 25, 2008] being the subject of the reconsideration). No refund of $8118 to be given now — all amounts will wait until 2014 as discussed with[in] the [July 25, 2008] order.
. . . .
The parties acknowledge that the outstanding loans for [H.R.'s] college experience [are] $51,175.
The parties will divide [K.R.'s] tuition, room, board, [and] books for her college experience in accordance with [Article II, paragraph 3, subsection C] of the [PSA] (i.e., [defendant] pays 65%, [plaintiff] pays 35%). . . .
The parties will divide [L.R.'s] unreimbursed tuition, room, board, [and] books for her high school experience equally. . . .
When [L.R.] moves on to college, the parties will divide her tuition, room, board, [and] books in accordance with the PSA (i.e., [defendant] pays 65%, [plaintiff] pays 35%)[.]
Defendant appealed the September 19, 2008 order. Dequina v. Ramos, No. A-1150-08 (App. Div. October 22, 2009). Since we could not discern how the judge determined the $74,617 and $8118 amounts included in the July 25, 2008 and September 19, 2008 orders, we concluded:
The HCPD should not have credited defendant with $55,000 equitable distribution and interest, if that is what occurred, because the county probation departments are only authorized to collect spousal or child support. R. 5:7-4(b). If that figure was included in the audit which resulted in the $8118 credit to defendant held in abeyance to 2014, it should not have been issued to him as a credit. As set forth above, we are not certain, however, if the oldest child's college expenses or loans or child support arrears were included in the audit.
Furthermore, the motion judge did not cite to any authority for holding the $8118 overpayment, if it was an overpayment, in abeyance pending the termination in the year 2014 of defendant's support obligation for the parties' youngest child. But again, we are not certain that this figure actually represents a credit. The equitable distribution judgment and interest, although properly entered as a judgment against defendant in the matrimonial court, should not have been run through the HCPD account.
Accordingly, we direct that the September 19, 2008 order as to an $8118 credit be vacated. Upon remand, the court shall delete from the HCPD account, if it was included, the entire equitable distribution figure and interest thereon. Only support arrears, college education expenses, and the like are to be included.
Only by the inclusion of support amounts can arrears or credits be calculated. If after subtracting improperly included amounts, but adding support arrears, college contributions and medical expenses, plaintiff was overpaid, that amount must be reimbursed to defendant rather than held in abeyance until 2014.
The order as to a credit of $8118 is hereby vacated and the matter remanded for proceedings in accordance with this decision.
[Id. at 8-9.]
There is no record of a proceeding that specifically addressed the credit. Post remand, a hearing was held on June 28, 2013, regarding a motion filed by plaintiff to enforce litigant's rights. In the order entered that same day, the judge held defendant was in violation of the PSA and previous court orders defining his child support obligations and that he owed plaintiff $56,068.85. In arriving at this figure, the judge subtracted the $8118 credit from the $64,186.85 in total support owed by defendant. The judge also ordered defendant be subject to wage garnishment of $1000 per week.
Defendant moved to vacate the June 28, 2013 order in its entirety. On September 13, 2013, the judge ordered, among other things, that the $1000 per week wage garnishment entered in the June 28, 2013 order was to be replaced by a wage garnishment of $170 per week. A plenary hearing was scheduled for January 8, 2014, and January 9, 2014, to determine defendant's "past due tuition bills, support[,] and medical expenses for [K.R.] from 2008, 2009, 2010, 2011, [and] 2012 up until [May 28, 2013]." As a result of several delays, the hearing was not held until August 5, 2014 and August 6, 2014.
Following the hearing on August 6, 2014, the judge entered an order finding that defendant owed $58,795.01 in unpaid child support for K.R. and L.R. The judge determined that defendant owed an additional $6500 for unpaid college expenses. Moreover, the judge held that defendant was "responsible for 65% of [K.R.'s] Fall 2013 and Spring 2014 college tuition bills[,]" which totaled $16,699. The judge also noted that she would not deduct the $8118 credit awarded to defendant from the above amounts, due to her decision to reinstate the PSA's equitable distribution judgment against defendant. As a result of above, the judge instituted an arrears order of $1000 per month payable by defendant to liquidate the total of $81,994.01 owed.
After plaintiff filed a motion to enforce litigant's rights on September 8, 2014, hearings were held on October 10, 2014 and November 3, 2014. The subject of the October 10 hearing was the amount owed by defendant to plaintiff for L.R.'s high school and college tuition costs and expenses pursuant to previous court orders and the PSA. The subject of the November 3 hearing was the amount owed by defendant to plaintiff under the PSA for his three children's outstanding college student loans.
On December 12, 2014, the judge entered two orders. In the first order, the judge found defendant owed $35,796 to plaintiff for L.R.'s high school and college tuition costs and expenses. The judge entered judgment against defendant for $35,796 and added that amount to his existing arrears account. In the second December 12, 2014 order, the judge determined that defendant owed $87,703 to plaintiff for the three children's outstanding college student loans. Accordingly, judgment was entered against defendant in the amount of $87,703.
Defendant appeals both December 12, 2014 orders. On appeal, defendant presents several arguments challenging the propriety of court orders dating back to June 2013. However, as only the December 12, 2014 orders are before us, we confine our decision to issues pertinent to those orders. Rule 2.5-1(f)(3)(A).
II.
Defendant contends the trial court failed to comply with our October 22, 2009 decision that vacated the $8118 credit and remanded the matter for further proceedings. In light of this failure, defendant argues that all subsequent orders should be considered null and void, and the matter should be remanded for a further analysis of his financials for purposes of support. We disagree.
In our October 22, 2009 decision, we remanded the matter for further proceedings, both for clarification and for a determination whether defendant was entitled to the credit. Further, we ordered that if defendant was entitled to a credit of any kind, it was to be paid out immediately, rather than held in abeyance until 2014. Notwithstanding, and without a clarification or determination, the motion judge continued to utilize the $8118 credit in the calculation of support to the benefit of defendant. Having received the benefit of a credit to which he well may not have been entitled, defendant's argument that he was adversely impacted by post-remand support orders is wholly without merit.
III.
Defendant next argues that the judge abused her discretion in the first December 12, 2014 order concerning L.R.'s high school and college tuition costs and expenses. Defendant contends the judge erred in entering judgment against him in the amount of $35,796. Again, we disagree. The requirement to pay for these expenses emanated from the PSA and previous orders.
Article II, paragraph 3, subsection A of the PSA states in pertinent part, "It is expected that the children will go to college or vocational school. The tuition, room, board and miscellaneous expenses for [H.R.] shall be shared equally. [Sixty-five percent] of the total expenses for [K.R.] and [L.R.] shall be paid by [defendant]." In an order dated January 3, 2008, the judge held that defendant "shall be 30% responsible for [L.R.'s] boarding school costs — such as room, board, tuition, lessons, registration costs, etc. [Plaintiff] shall be 70% responsible for [L.R.'s] boarding school related costs." In an order dated September 19, 2008, the judge held that "the parties will divide [L.R.'s] unreimbursed tuition, room, board, [and] books for her high school experience equally[.]"
Utilizing above as a predicate, the judge held in the first December 12, 2014 order:
For the reasons placed upon the record on [October 10, 2014]:
. . . .
The [c]ourt finds that it is in full compliance with the Appellate Division of [October 22, 2009] and absent proof to the contrary, the [c]ourt takes no further action. The Appellate Division remand was corrected by the [c]ourt on [August 5, 2014 and August 6, 2014] with all parties consent and several subsequent proceedings have made it moot. [Defendant] provides no new data that is required for a [m]otion for reconsideration. The [c]ourt finds that every piece of work done in this case was as a result of [defendant] absenting himself from this litigation and then coming in long after the fact and asking for things to be
re-litigated. The [c]ourt finds that [defendant] has not followed through on just about anything with respect to the [PSA]. The [c]ourt finds that the Doctrine of Laches applies.
. . . .
The [c]ourt reviewed the [h]igh [s]chool [e]xpenses for [L.R.] at Milton Academy. [Defendant] has an obligation to pay one half of [h]igh [s]chool expenses pursuant to the [PSA]. Despite the repeated objections of [defendant], the [c]ourt moves forward to [e]nforce [l]itigant's [r]ights pursuant to [Rule] 5:3-7 and [Rule] 1:10-3 as follows:
1st year of [h]igh [s]chool for 2006 is $400 (His 50% share).
2nd year of [h]igh [s]chool for 2007 is $360 (His 30% share due to a [c]ourt [o]rder).
3rd year of [h]igh [s]chool for 2008 is $650 (His 50% share).
4th year of [h]igh [s]chool for 2009 is $637.64 (His 50% share).
[Defendant] owes [plaintiff] the total of $2047.14 (rounding it down to $2047) for [L.R.'s] [h]igh [s]chool [e]xpenses.
The [c]ourt reviewed the [c]ollege [e]xpenses for [L.R.] at Barnard College. The [PSA] compels [defendant] to pay 65% of all expenses for tuition, room and board, books, transportation and expenses. [Defendant] has not done so and is in violation of [l]itigant's [r]ights.
The cost of college applications total $1215 (His 65% share).
1st year of [c]ollege for Fall 20[10]/Spring 20[11]. [Defendant] paid $4400. [Defendant] still owes $2240.
2nd year of [c]ollege [for] Fall 20[11]/Spring 20[12]. [Defendant] paid $6000. [Defendant] still owes $3419.
3rd year of [c]ollege [for] Fall 2012/Spring 2013. [Defendant] paid $7547. [Defendant] still owes $3637.
4th year of [c]ollege [for] Fall 2013/Spring 2014. [Defendant] overpaid the sum of $20,379[,] leaving him with a plusage of $2793.
[Defendant] owes [plaintiff] the total of $7893 for [L.R.'s] [c]ollege [e]xpenses.
[Defendant] also owes [plaintiff] $25,855 in books and expenses for [L.R.] for [h]igh [s]chool and [c]ollege ([eight] years). . . .
[Defendant] owes [plaintiff] a sum total of $35,796 which will be reduced to a [judgment] against [defendant]. These amounts reflect the [out-of-pocket] expenses paid and do not include those amounts paid to the school from [f]inancial [a]id [1]oans.
. . . .
The [c]ourt shall add the sum total of $35,796 to [defendant's] outstanding arrearages[.] This amount represents [defendant's] share of [L.R.'s] [h]igh [s]chool and [c]ollege [e]xpenses. The [c]ourt shall increase the [a]rrears [o]rder to $2000 per month.
Our task as an appellate court is to determine whether the decision of the family court is supported by substantial credible evidence in the record and is consistent with applicable law. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We owe particular deference to a trial judge's credibility determinations and to "the family courts' special jurisdiction and expertise[.]" Id. at 413. Unless the judge's factual findings are "so wide of the mark that a mistake must have been made" they should not be disturbed, even if we would not have made the same decision if we had heard the case in the first instance. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)). "It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support" the judge's decision. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012).
Our Supreme Court has held that PSA's are essentially contracts between divorcing spouses and should not be "'unnecessarily or lightly disturbed.'" Konzelman v. Konzelman, 158 N.J. 185, 193-94 (1999) (quoting Smith v. Smith, 72 N.J. 350, 358 (1977)). When matters in dispute in a post-judgment matrimonial motion are addressed in a PSA, the agreement is "'entitled to considerable weight with respect to [its] validity and enforceability' in equity, provided [it is] fair and just." Dolce v. Dolce, 383 N.J. Super. 11, 20 (App. Div. 2006) (quoting Petersen v. Petersen, 85 N.J. 638, 642 (1981)). This comports with New Jersey's strong public policy favoring settlement of litigation. Harrington v. Harrington, 281 N.J. Super. 39, 46 (App. Div.), certif. denied, 142 N.J. 455 (1995); Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995).
Upon review of the plain language of the PSA and prior court orders, we conclude the motion judge did not abuse her discretion when entering judgment against defendant as to L.R.'s high school and college tuition costs and expenses. The percentages and amounts relied on by the motion judge were supported by substantial credible evidence in the record. In particular, the judge relied on detailed exhibits and spreadsheets provided by plaintiff in connection with a September 8, 2014 motion to enforce litigant's rights concerning L.R.'s high school and college tuition costs and expenses. We note that defendant failed to promptly object to the exhibits submitted by plaintiff prior to the October 10, 2014 hearing, or submit his own financial materials to dispute the requested amounts.
Nonetheless, as a result of our independent review of the expenses provided by plaintiff and relied on by the judge, we have determined the amounts ordered as owed by defendant were marginally erroneous. In the first December 12, 2014 order, the judge determined that defendant owed a total of $2047.14 for L.R.'s high school expenses, which was then rounded down to $2047. However, predicated upon the expenses provided, the actual amount was $2047.64. The judge also determined that defendant owed a sum of $7893 for L.R.'s college expenses. Predicated upon the expenses provided, the actual amount was $7718. When adding $2047 and $7718 to the $25,855 amount for L.R.'s books and expenses associated with her high school and college attendance, defendant owed a total of $35,620 rather than $35,796.
Pursuant to Rule 2:10-5, we modify the support amounts entered by the judge in the order. As such, it is ordered that $35,796 be vacated from defendant's arrears account, and $35,620 be entered as a judgment against defendant and added to his arrears account for L.R.'s high school and college tuition costs and expenses.
Defendant's remaining arguments in regard to the first December 12, 2014 order lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
IV.
Defendant contends that the judge abused her discretion when she ordered him to pay a percentage of his three children's outstanding college student loans in the second December 12, 2014 order. Defendant argues that since the loans are to be paid prospectively, the judge erred in entering a judgment that requires immediate payment. Moreover, defendant argues that plaintiff lacked standing to bring a claim concerning payment of the children's student loans pursuant to the PSA. We disagree.
The judge held in the second December 12, 2014 order:
For the reasons placed upon the record on [November 3, 2014]:
. . . .
Based upon the proofs submitted by [plaintiff], [defendant's] share is the following as evidenced by the [PSA] on [p]ages 6 and 7, [paragraphs] A, B, and C.
For [H.R.], [defendant's] 50% share totals $52,020 as of [September 1, 2014]. The monthly payment is $608 for a period of [ten] years. This amount has inflated due to past interest and penalties resulting from the many years of non-payment, [H.R.] having emancipated in 2004 after [finishing] college, but no payments have been made by [defendant].
For [K.R.], his 65% share totals $11,539 as of [September 1, 2014]. The monthly payment is $122 for a period of [ten] years.
For [L.R.], his 65% share totals $24,144 as of [September 1, 2014]. The monthly payment is $2 60 for a period of [ten] years.
. . . .
Lastly, the amount of $87,703 against [defendant] and in favor of [plaintiff] shall be reduced to a [judgment].
Applying our standard of review, we discern no basis to disturb the judge's award of $87,703 against defendant in the second December 12, 2014 order. As provided by the PSA, defendant was obligated to pay 50% of H.R.'s student loans, and 65% of K.R.'s and L.R.'s loans as consideration for plaintiff waiving her right to restitution of the PSA's equitable distribution judgment. Upon review of the detailed exhibits provided by plaintiff, the amounts awarded by the judge for each child's outstanding student loans were supported by substantial credible evidence in the record. Further, defendant failed to object to the exhibits submitted by plaintiff regarding the student loans prior to the November 3, 2014 hearing, which provided the basis for the second December 12, 2014 order, or submit his own loan materials to dispute the amounts sought.
We note the judge reinstituted the PSA's equitable distribution judgment in the August 6, 2014 order. We find this was consistent with the PSA, and does not nullify defendant's obligation to his children's student loans, as defendant had failed to make the appropriate payments for both K.R. and L.R. as provided by the PSA and previous court orders. --------
Defendant's remaining arguments regarding the second December 12, 2014 order lack sufficient merit to warrant further discussion in a written opinion. 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