Opinion
DOCKET NO. A-6188-12T2
10-17-2014
JOSEPH S. DiPASQUALE, Plaintiff-Respondent, v. CAROL SAMPSON, f/k/a CAROL DISPASQUALE, Defendant-Appellant.
Carol Sampson, appellant pro se. Hunziker, Jones & Sweeney, P.A., attorneys for respondent (Mary Tom, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh and Maven. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-1657-99. Carol Sampson, appellant pro se. Hunziker, Jones & Sweeney, P.A., attorneys for respondent (Mary Tom, on the brief). PER CURIAM
Defendant Carol Sampson, f/k/a DiPasquale appeals the Family Part's July 8, 2013 order resolving post-judgment motions concerning the parties' nineteen-year-old daughter. We affirm in part and remand in part.
I.
We discern the following facts and procedural history from the record on appeal.
Carol and Joseph were married in April 1990. Their daughter, who is their only child, was born in March 1994. Carol and Joseph entered into a property settlement agreement (PSA) that was incorporated into their dual judgment of divorce (JOD) in December 2000. Their daughter has continued to live with Carol since the divorce.
The PSA provided for child support in the amount of $12 6 per week until the daughter's emancipation. The JOD provided that the amount of child support was subject to a cost-of-living adjustment (COLA) every two years. The JOD further provided that "[t]he application of the Child Support Guidelines shall take precedence over cost-of-living adjustments. A cost-of-living adjustment shall not impair the right of either parent to apply to the court for a modification of support provisions of the Order or Judgment based on changed circumstances." Joseph was to be responsible for 70% of uncovered medical expenses and Carol for the remaining 30%.
The PSA also established the parties' obligation to contribute to their daughter's college education:
The parties agree that each shall be responsible for the college educationAt the time Carol and Joseph filed their respective motions, their daughter was attending Passaic County Community College, and living with her mother. Her school expenses were financed, in part, through loans, which were accruing interest at the time of the motion.
expenses for the Child of the marriage including tuition, room and board, books, transportation costs, and miscellaneous fees required by the education institution, in that each shall be responsible for part of all such expenses, based upon their respective financial abilities to do so at the time of the expense.
In May 2013, Carol filed a motion seeking the following relief: (1) contributions by Joseph for college expenses as required by the PSA; (2) reimbursement for 2012 reimbursed healthcare expenses for their daughter; and (3) counsel fees. Joseph filed a cross-motion seeking the following relief: (1) reduction in child support effective February 4, 2013; (2) adjustment in unreimbursed medical expenses; (3) a credit for child support overpayments as of February 4, 2013; (4) a credit for 2010-2012 medical expense overpayments; (5) an order requiring Carol to submit medical bills in a timely manner; and (6) counsel fees.
Joseph asserts that, as a condition of Carol's withdrawal of an earlier pro se motion, there was an agreement that any decrease in his "child support obligation would be retroactive to [her] original motion date of February 4, 2013" and that Carol consented to the stated condition.
The motion judge heard argument in June 2013. Following the argument as to each issue, the judge made the following rulings: (1) Carol's application to compel Joseph's contributions to college expenses was denied without prejudice; (2) Joseph was ordered to pay Carol $1067 as his share of unreimbursed medical expenses; (3) Joseph's weekly child support obligation was lowered from $220 to $188; (4) the request to modify the parties' percentage of contribution for unreimbursed medical expenses from a 70/30 split was denied; (5) Joseph's request for a credit of $514 for overpayment of unreimbursed medical expenses from 2010-2012 was granted; (6) each party was required to submit reimbursable bills to the other within seven days of receipt, with the responding party having fifteen days to pay or dispute the obligation; and (7) both parties' requests for counsel fees were denied. However, the judge reserved decision on whether the 14.6% in COLAs previously received by Carol pursuant to the JOD should be applied to the new child support amount.
On July 8, 2013, the judge issued the order that is now on appeal. He attached the child support worksheet on which he based the support award. The order provided as follows: (1) Carol's request for Joseph's contribution for college expenses was denied without prejudice until such time as out-of-pocket expenses were "incurred on behalf of [the daughter]"; (2) Joseph was ordered to pay Carol $553 as reimbursement for unreimbursed medical expenses, representing the amount owed for 2013 with the credit for 2010-2012; (3) the party incurring unreimbursed medical expenses is required to submit the medical bills within seven days of receipt and the other party must make payment or dispute them within fifteen days of their receipt; (4) the percentage each party must pay for unreimbursed medical expenses was adjusted to 62% for Joseph and 38% for Carol, based on the child support guidelines; (5) Joseph's child support obligation was lowered to $188 effective February 4, 2013; (6) the probation department was ordered to adjust Joseph's account consistent with the order; (7) Carol's request for "school supplies, car insurance, and gas" for the daughter was denied; and (8) both parties' requests for counsel fees were denied. This appeal followed.
That determination was contrary to the judge's oral decision.
II.
Carol raises the following points on appeal:
Point A: [The Judge] has denied without basis payment for college expenses at this time by the Plaintiff. The Defendant is
incurring all expenses for their Daughter[']s College. There are many very current expenses that are due and incurred weekly in order for their Daughter to go to a community college. The Plaintiff agreed to pay these costs in the final judgment of divorce and the costs are now being required to be paid in full by the Defendant at this time.
Point B: The Judge awarded the costs of the medical bills to be split in half. In this total amount due was the 2013 deductible that the Defendant is required to pay annually. The Plaintiff is saying it was never paid for in 2013 and is trying to collect it again through current dental bills owed. The Defendant currently has a dental bill owed that is $250 more than owed where the Plaintiff refuses to pay. He is trying to double dip and collect twice. (This in fact was the dentist that levied the Defendant[']s account the last time that the Plaintiff chose not to pay).
Point C: Because the Plaintiff still does not pay the bills in a timely fashion this causes the Defendant damage as she is the custodial parent. The Defendant argues that there should be some type of system [ ] in place to avoid having to repeatedly send the Plaintiff the same items over and over again to make him pay these bills promptly or efficiently.
Point D: Because the Judge has ordered the percentages of the unreimbursed medical coverage[] to be changed in addition to the support, it is now costing the Defendant even more money to support their Daughter[]. Her income has not changed much since the [2000] order and everything is being taken away. She filed a motion to enforce her litigant['s] rights and lost more than she did to start with when the parties were originally divorced. The Judge also has
supplied no reasonably credible evidence for any of his determinations.
Point E: The Judge has adjusted the child support without any reasonably credible evidence. The child support changes over the years were mainly due to the COLA increases. The determination in fact takes away those increases. The order also does not include the additional 14.6% that should have been added to the support.
Point F: The Judge had made this support adjustment go into [e]ffect from the original fil[ing] of the motion. This in turn took away even more money from the Defendant while she was trying to enforce her litigant['s] rights from a final judgment of divorce in [2000].
Point G: Because the Judge denied the Plaintiff to pay for college costs (that were included in the final judgment of divorce), the Defendant is now required to pay for everything from car insurance, gas, maintenance, books, expenses, tutors[,] etc. These costs are causing severe financial hardship to the Defendant and were committed by both parties to be split in the final divorce agreement. The Defendant is seeking an equal or fair split as stated according to their incomes.
Point H: Because the Plaintiff never fulfilled his commitment to what he originally signed or committed for their Daughter, the Defendant was forced to go into litigation. Had he complied with what he agreed to there would have been no litigation. The Defendant is seeking restitution for all of her legal fees (which are minimal since a lot of her litigation was done pro se). This was denied by the Judge also in the order.
We ordinarily accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (quoting Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). Similar deference is accorded to the factual findings of those judges following an evidentiary hearing, if one has taken place. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). A judge's purely legal decisions, however, are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)); Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).
With respect to college expenses, the parties agreed to share them in the PSA. The motion judge's decision to defer determination until the expenses are due and payable leaves Carol and the daughter with uncertainty as to what expenses will actually be reimbursed, by whom, and when. That uncertainty is unfair to both of them. For this reason, we remand for further consideration by the motion judge.
The determination of educational expenses and their allocation between the parents, and the daughter to the extent she can contribute, are distinct from the timing of payment. The nature of the expenses that are to be reimbursed must first be determined and clearly articulated, e.g., tuition, school fees related to academic pursuits, textbooks, and similar educational expenses. Those expenses should be articulated now, to the extent possible, so that the daughter knows in advance what expenses or types of expenses are subject to reimbursement by her parents.
The judge should also consider whether tutoring is an appropriate educational expense.
Because the daughter was living with her mother and not on campus, we find no error with respect to the judge's determination that incidental expenses, including school supplies, computers, and other items included as part of child support, are not properly characterized as educational expenses. See Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2643-44 (2015). We also agree that expenses related to transportation are not reimbursable educational expenses, because they are included in the child support calculation. Ibid. The PSA contains no agreement with respect to the purchase of a separate automobile for the daughter, and we find no abuse of discretion in the judge's refusal to provide otherwise. The other automobile expenses are included in the child support calculation.
The judge's use of the child support guidelines to calculate support is appropriate for that reason. See Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2643-44 (2015).
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Once the payable educational expenses are determined, the judge can address the timing of payment, to the extent future payment is permitted by the entity to which the payments are owed. As Carol points out, deferral of loan repayments to the future, while convenient for cash flow purposes, also increases the overall cost because of the accumulating interest. If one parent wishes to make payments now to avoid interest costs and the other wishes to defer them, the judge should address the issue, being careful to make sure that any additional expense resulting from deferred payment is borne by the parent deferring the payment, assuming the other parent makes timely current payments.
We now turn to the modification of child support. A prima facie demonstration of changed circumstances is required to support a request for a modification of child support. Lepis v. Lepis, 83 N.J. 139, 157-58 (1980); Smith v. Smith, 72 N.J. 350, 360 (1977) (quoting Schiff v. Schiff, 116 N.J. Super. 546, 561 (App. Div. 1971), certif. denied, 60 N.J. 139 (1972)). "Only after the movant has made this prima facie showing should the respondent's ability to pay become a factor for the court to consider." Lepis, supra, 83 N.J. at 157.
Events that qualify as changed circumstances to justify an increase or decrease of support include an increase in the cost of living, an increase or decrease in the income of the supporting or supported spouse, cohabitation of the dependent spouse, illness or disability arising after the entry of the judgment, and changes in federal tax law."When one or both parents have agreed to undertakings advantageous to a child beyond that minimally required, the public policy favoring stability of arrangements . . . usually counsels against modification." Ibid.
[J .B. v. W.B., 215 N.J. 305, 327 (2013) (citing Lepis, supra, 83 N.J. at 151).]
Temporary or anticipated circumstances are not usually an appropriate basis for changed circumstances. Lepis, supra, 83 N.J. at 151. "The mere passage of time since the entry of the child support order is not a sufficient reason to request that a court review the order or require that the parties exchange financial information." Martin v. Martin, 410 N.J. Super. 1, 4 (Ch. Div. 2009). When a party seeks a reduction of child support, "the needs and best interests of the child are . . . controlling." Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340, 350 (App. Div. 2009); accord Savarese v. Corcoran, 311 N.J. Super. 240, 257 (Ch. Div. 1997), aff'd o.b., 311 N.J. Super. 182 (App. Div. 1998).
The motion judge failed to articulate his reasons for finding that there were changed circumstances warranting modification of Joseph's child support obligation. He also failed to address how he took the daughter's needs into account in making his decision. Gonzalez-Posse, supra, 410 N.J. Super. at 350. In addition, although the judge reserved the question of how the COLA increases Carol received pursuant to Rule 5:6B should be factored into the recalculation, he never explained his reasons for subsequently deciding that they should not be considered at all.
We question whether the provision in Rule 5:6B that the guidelines take precedence over COLAs was intended to undo the benefit conferred by the COLA rule merely because, over time, the COLA-augmented support amount exceeds the then applicable guideline calculation. That would appear inconsistent with the principle that "mere passage of time" is not a changed circumstance. Martin, supra, 410 N.J. Super. at 4. However, the failure of a supporting spouse's income to keep pace with inflation might, depending on a review of all of the facts, be considered a changed circumstance warranting an adjustment.
On remand, the motion judge will need to address the overall issue of whether there was a change in circumstances and, if there was, whether and to what extent Joseph's child support obligation should be modified. In addition, there should be a clear articulation, based on facts in the record and the applicable law, of the reasons for the resulting decision.
Having reviewed the remaining arguments made by Carol in light of the record and applicable law, we conclude that they are without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We find no abuse of the judge's broad discretion with respect to those issues.
In summary, we affirm the order on appeal with two exceptions. We remand to the Family Part for reconsideration of the issues of (1) college expenses and (2) modification of child support, consistent with this opinion. We do not retain jurisdiction.
Affirmed in part, remanded in part. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION