Opinion
DOCKET NO. A-3538-14T1
08-15-2016
MICHAEL POLCARI, Plaintiff-Respondent, v. MARIA A. POLCARI, Defendant-Appellant.
Chamlin, Rosen, Uliano & Witherington, P.A., attorneys for appellant (Karen M. Schermond, on the brief). Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Gilson. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-647-10. Chamlin, Rosen, Uliano & Witherington, P.A., attorneys for appellant (Karen M. Schermond, on the brief). Respondent has not filed a brief. PER CURIAM
In this matrimonial case, defendant Maria Polcari appeals from the Family Part's post-judgment rulings finding her in violation of litigant's rights for failing to contribute to the college expenses of her older son, directing her to pay thirty percent of the son's college expenses not funded by loans, and denying her request for attorney's fees she incurred in the motion practice that led to these rulings. We affirm.
Defendant and plaintiff Michael Polcari were married in January 1993. Three children were born of the marriage: a son born in October 1995; a younger son born in August 1997; and a daughter born in May 2000. Only the circumstances of the older son are at issue in this appeal.
The parties divorced in June 2010. They negotiated with the assistance of their counsel a Property Settlement Agreement ("PSA"), which was incorporated into their final judgment of divorce. In paragraph 26(a) of the PSA, the parties agreed that they would contribute towards their children's future college expenses "in accordance with assets and income at that time, after exhaustion of all grants, scholarships, guaranteed student loans and financial aid, which the children must apply for."
In the fall of 2014, the older son began attending Seton Hall University. The cost per semester was $25,642. He received grants, loans and scholarships for his first semester totaling $13,221. In accordance with the PSA, his parents were responsible for the remaining amount of $12,421. A similar loan and net amount due to the university was anticipated for the spring 2015 semester.
The parties discussed, but were unable to agree upon, respective amounts they would each contribute to the son's net college expenses. Plaintiff, who had taken the lead in assuring that the son's college expenses were financed, consequently moved in the Family Part to compel defendant to pay an appropriate contribution. Defendant cross-moved to have her share of college expenses limited to $400 per month. She also requested other forms of relief, including an order compelling plaintiff to turn over financial aid information, to verify that he was maintaining life insurance coverage consistent with the PSA, and to reimburse of her counsel fees and costs relative to the motions.
At the time relevant to the motion practice, defendant was employed as a real estate agent. She also received from plaintiff $48,000 per year in alimony. Her adjusted gross income for 2013 was determined to be $80,443. Plaintiff, meanwhile, was employed with an investment management firm. The trial court found that his adjusted gross income for 2013 was $180,092.
The trial court used these respective 2013 adjusted gross incomes to calibrate the parties' shares of college expenses as prescribed by the PSA. The court also evaluated the factors under Newburgh v. Arrigo, 88 N.J. 529 (1982), and N.J.S.A. 2A:34-23. In conducting its analysis, the court rejected defendant's request for a plenary hearing. The court found that such a hearing was not necessary in light of the specified terms of the PSA and the certified financial information the parties had submitted.
The trial court noted that defendant's relative portion of the parties' combined incomes was thirty-four percent. The court decided to fix her share of the son's college expenses at slightly less than that fraction, at thirty percent. Plaintiff was held responsible for the remaining seventy percent. The court additionally found that defendant had been in violation of her obligations by failing to contribute to the son's college expenses until being compelled by the court to do so. The court denied defendant's request for counsel fees. The court also directed the parties to exchange life insurance information, which is not relevant to the present appeal.
The court initially issued an order and opinion adjudicating these issues on February 25, 2015, which it followed with an amended opinion on May 19, 2015, reserving on the payment issues until plaintiff supplied the financial aid information sought by defendant. After plaintiff duly supplied that information, the court issued a final opinion and order on September 9, 2015, reaffirming the 30/70 percent allocation it had originally adopted. Although defendant has not amended her April 2015 notice of appeal from the first order to encompass the ensuing May and September orders, we choose to reach the merits of her arguments concerning those rulings. --------
On appeal, defendant argues that the trial court erred in (1) fixing her contribution at thirty percent of college expenses without a plenary hearing; (2) finding that she was in violation of litigant's rights; and (3) denying her request for counsel fees. We reject those contentions, substantially for the sound and ample reasons set forth by the motion judge, the Honorable Mara Zazzali-Hogan.
Our scope of review of the trial court's determinations in resolving this dispute between former spouses is limited. Given the Family Part's special expertise, appellate courts must accord particular deference to fact-finding in family cases, and to the conclusions that logically flow from those findings. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998); see also Pascale v. Pascale, 113 N.J. 20, 33 (1988).
Applying this limited scope of review, we conclude that the court's 30/70 allocation of college expenses was fair and consistent with the law, the factual record, and the parties' PSA. The parties agreed in the PSA to each contribute to their children's college expenses, and to have those contributions allocated based upon their "assets and income at that [future] time." This mutual contractual commitment in a PSA by divorcing spouses presumptively should be enforced. Quinn v. Quinn, ___ N.J. ___, ___ (2016) (slip op. at 11-12). We discern no reason to deviate from it. The court meticulously considered each of the Newburgh factors for allocating college expenses, within the overlay of the asset/income standard bargained for within the PSA.
We reject defendant's claims that the trial court unfairly questioned the reasonableness of some of the expenses listed in her financial statements and in finding that certain sums were inappropriately double-counted. There was no need for a plenary hearing in these circumstances, given the nature of the issues and the written submissions. See Barblock v. Barblock, 383 N.J. Super. 114, 124 (App. Div.) (observing that plenary hearings are not required for all Family Part disputes and that the need for hearings can turn on the nature of the issues), certif. denied, 187 N.J. 81 (2006). The court spared the parties the burdens of a plenary hearing that was unlikely to lead to a different result, providing a swifter outcome that resolved their son's uncertain situation about his parents' ongoing duties to contribute to his college costs.
The court also did not err in determining that defendant was in violation of her obligations under the PSA and in denying her request for counsel fees. Although her income is comparatively less than plaintiff's and there was no finding that she acted in bad faith, defendant was essentially the non- prevailing party on the motion practice. The court did not misapply its discretion or the pertinent factors in having each side bear its own legal costs. We will not disturb a counsel fee award in a matrimonial case under Rule 4:42-9(a)(1) and Rule 5:3-5(c) except "only on the 'rarest occasion', and then only because of clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). This is not such an occasion.
Although defendant suggests in her brief that plaintiff has prospered in his occupation and that his assets and earnings have been growing, those concerns can be raised in a future motion, if necessary, relating to the allocation of the son's college expenses for beyond the 2014-15 academic year.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION