Opinion
DOCKET NO. A-0077-11T1 DOCKET NO. A-2137-11T1
05-15-2014
HENRY CORIGLIANO, JR., Plaintiff-Appellant, v. LINDA CORIGLIANO, Defendant-Respondent. HENRY CORIGLIANO, JR., Plaintiff-Respondent/Cross-Appellant, v. LINDA CORIGLIANO, Defendant-Appellant/Cross-Respondent.
Karen A. Ermel, attorney for appellant in A-0077-11 and respondent/cross-appellant in A-2137-11. Linda Corigliano, respondent pro se in A-0077-11 and appellant/cross-respondent pro se in A-2137-11.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti, Ashrafi, and Leone.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-492-02.
Karen A. Ermel, attorney for appellant in A-0077-11 and respondent/cross-appellant in A-2137-11.
Linda Corigliano, respondent pro se in A-0077-11 and appellant/cross-respondent pro se in A-2137-11. PER CURIAM
We address in this opinion two appeals arising out of post-divorce litigation. In A-0077-11, plaintiff Henry Corigliano, Jr. appeals from an order denying his request for modification of alimony. In A-2137-11, defendant Linda Corigliano appeals from a subsequent order requiring her to contribute a share of the children's college expenses, and denying her request for counsel fees and mortgage-related fees. Plaintiff cross-appeals from that order, arguing defendant's share of college expenses was miscalculated. The Family Part decided these orders without holding an evidentiary hearing. In A-0077-11, we reverse and remand. In A-2137-11, we affirm as modified.
These appeals, originally calendared back-to-back, are consolidated for the purposes of the opinion only.
I.
Plaintiff and defendant were married in 1982, and had three children born in 1985, 1987, and 1989. They divorced in 2004. They entered into a Supplemental Final Judgment of Divorce (JOD) filed on May 21, 2004. The JOD provided that plaintiff "shall pay as permanent alimony to the Wife/Defendant the sum of $3,000.00 per month," as well as rehabilitative alimony of $500 per month for sixty months. The JOD required plaintiff to pay $311 per week in child support, based on his imputed income of $110,032. In the JOD, "the parties agree[d] to share . . . as each is financially able" the payment of the children's college expenses not paid by financial aid and the children's bonds.
On May 16, 2006, the Family Part granted plaintiff's motion to reduce his child support obligation to $305 per week "due to the attendance of the two oldest children at colleges away from home." Defendant states this motion also denied a reduction of alimony, but it does not so indicate.
At the time of the divorce, plaintiff was employed as general manager of Corigliano Motor Services (CMS), a family business headed by his father. After his father's death, he was employed by John Johnson LLC (Johnson), then by Campbell Freightliner (Campbell). On April 1, 2008, the court denied without prejudice plaintiff's motion seeking a reduction in his child support and alimony, stating that he had not submitted sufficient evidence of changed circumstances or shown meaningful efforts to procure employment that would allow him to maintain the marital level of income.
Plaintiff was terminated from Campbell in August 2008. On December 8, 2008, the court denied without prejudice plaintiff's motion to reduce his child support and alimony, stating that plaintiff's loss of his job at Campbell was insufficient because "[t]emporary unemployment is not a sufficient basis for modification." The court granted his motion to emancipate the oldest child after his graduation from college, and ordered child support to be recalculated based on the $110,000 income imputed to plaintiff in the JOD. The court denied without comment plaintiff's request to compel defendant to contribute to college expenses.
After receiving unemployment benefits, plaintiff obtained employment in March 2009 with Beyer Brothers Corporation (Beyer). Plaintiff filed another motion to reduce alimony, which was denied on March 11, 2010, for the reasons set forth in the April 1 and December 8, 2008 orders.
On April 21, 2010, the court completed the child support recalculation ordered in December 8, 2008, reducing child support to $287 per week. The court denied without prejudice plaintiff's request to reduce his child support based on the college attendance and college expenses of the two younger children, because he had not made an adequate showing of what he had paid.
On September 17, 2010, the court issued an order emancipating the middle child after his graduation from college, denying without prejudice plaintiff's motion to reduce his alimony, and denying his request that defendant contribute to college expenses. On October 28, 2010, the court set child support for the youngest child at $193 per week.
On July 22, 2011, the court emancipated the youngest child after her graduation from college, and denied without prejudice his request that defendant contribute to college expenses. The court also denied without prejudice plaintiff's request for reduction of alimony, from which plaintiff appeals.
On November 21, 2011, the court granted plaintiff's request that defendant contribute to the children's college expenses, ordering her to pay $36,060.76. Defendant appeals and plaintiff cross-appeals that determination. The court denied defendant's request that plaintiff be required to pay counsel fees and her mortgage-related fees. Defendant appeals those denials.
We note that all of the orders listed above were issued without an evidentiary hearing. Thus, we do not apply the deferential standard of review applicable to trial court fact finding after an evidentiary hearing set forth in Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). See N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009).
II.
We first address A-0077-11, in which plaintiff challenges the July 22, 2011 order denying his motion to reduce alimony. "The Legislature has left applications to modify alimony to the broad discretion of trial judges." Storey v. Storey, 373 N.J. Super. 464, 470 (App. Div. 2004). Alimony orders "may be revised and altered by the court from time to time as circumstances may require." N.J.S.A. 2A:34-23. Thus, alimony obligations, whether set in judicial orders or parties' agreements, "are always subject to review and modification on a showing of 'changed circumstances.'" Lepis v. Lepis, 83 N.J. 139, 146 (1980). "When the movant is seeking modification of an alimony award, that party must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself." Id. at 157.
An "increase or decrease in the supporting spouse's income" is a recognized "changed circumstance." Id. at 151. However, "[c]ourts have consistently rejected requests for modification based on circumstances which are only temporary[.]" Ibid.; Innes v. Innes, 117 N.J. 496, 504 (1990). Moreover, "'[i]ncome may be imputed to a party who is voluntarily unemployed or underemployed.'" Gnall v. Gnall, 432 N.J. Super. 129, 158 (App. Div. 2013), certif. granted, 217 N.J. 52 (2014).
Plaintiff supported his 2011 motion to reduce alimony with a certification attesting as follows. At the time of the divorce, he was general manager of CMS, earning on average $100,000 in salary, commissions, and bonuses, plus perquisites including vehicle use and paid expenses. Based on that income, the parties agreed in the JOD to impute to plaintiff an annual income of $110,032.
Upon the death of plaintiff's father in 2004, the father's 25% interest in CMS by will passed into a trust for plaintiff's mother's benefit, from which he has received no commissions or distributions. Plaintiff's cousin became president of CMS. Plaintiff was demoted and his salary was reduced to about $90,000. In November 2006, CMS's assets were sold to Johnson and another party, with no distributions made to plaintiff. Johnson employed plaintiff as its finance manager earning about $95,000 annually.
In November 2007, plaintiff voluntarily took employment as the general manager of Campbell's truck dealership, earning approximately $100,000 annually. Campbell eliminated his position and terminated him in August 2008. He received unemployment benefits from September 2008 through February 2009.
In March 2009, plaintiff obtained employment at Beyer as a traveling parts salesman with a base annual salary of $36,400 plus 0.5% to 1.0% commissions on sales. He also received a car allowance of $500 per month. His 2010 gross income from Beyer, including commissions but excluding the car allowance, was $50,103. He also earned $5,000 by snowplowing on nights and weekends. As a result of these reduced earnings, plaintiff withdrew $190,000 from his retirement accounts and went into substantial debt to pay alimony, child support, and the children's college costs.
From August 2008 to 2011, plaintiff "mounted an extensive and continuous search for employment at an income comparable" to his income at CMS. His efforts included: reapplying and interviewing with Campbell; paying $5,000 to register with the Job Market Access Center and obtain a marketability report and marketing plan; registering with various online job search companies; registering online with and applying to five auto-related companies; reviewing online help-wanted ads daily and responding by filing "dozens and dozens" of applications; and attending numerous job fairs. All of these efforts have been unsuccessful. Plaintiff's certification concluded that his loss of income was neither temporary nor voluntary.
Defendant's certification did not deny plaintiff's averments concerning his employment history and salaries. Instead, defendant alleged without detail that plaintiff's "personal assets and income have increased dramatically" since the divorce and that he "has sufficient money to pay his alimony obligations." Defendant alleged that plaintiff was the sole beneficiary of the trust and could access the trust income, that he receives $3,000 per month in hidden installment payments from Johnson, that his mother had paid his share of college costs and that he overfunded his retirement accounts to withdraw the $190,000. Plaintiff supplied a reply certification and a certification by his mother denying those allegations.
Defendant also did not raise her current complaint that plaintiff's motion did not attach his prior Case Information Statement (CIS) as required by Rule 5:5-4(a). Given the JOD's stipulation to the marital income of $110,032, we find no plain error. R. 2:10-2.
Defendant also claimed that plaintiff's motion was the sixteenth frivolous motion filed by plaintiff "involving requests to reduce child support and alimony and/or have me contribute toward our children's college expenses." Defendant listed sixteen orders, most of which did not purport to decide such requests by plaintiff. Some of the orders granted plaintiff's motions to reduce child support, and thus were not frivolous. In reality, plaintiff made four prior motions to reduce alimony, all of which were denied without prejudice.
In its July 22, 2011 order denying without prejudice plaintiff's fifth motion to reduce alimony, the Family Part, misled by defendant, stated:
Plaintiff's request for a reduction in his alimony has been denied annually from 2006 through 2011. Previously, Plaintiff has filed a motion for same fifteen (15)
times to no avail. Nevertheless, Plaintiff continually renews this application, refusing to honor the parties' [JOD] and several Orders in this matter.
We are concerned that the court thus prefaced its decision. Whatever the merits of plaintiff's motion denied in April 2008, it is undisputed that since being terminated by Campbell in August 2008, he has not received a salary comparable to his salary at the time of the JOD. This gave some basis to his motions to reduce alimony that were denied in December 2008, March 2010, and September 2010. All of his motions were denied without prejudice on the basis that he had not yet shown his reduction in income to be more than temporary.
Plaintiff's assertion, almost three years after his termination, that his reduced income had ceased to be temporary, was not properly characterized as a refusal to honor the JOD or the prior orders denying his request without prejudice and without an evidentiary hearing. "[E]ach and every motion to modify an alimony obligation 'rests upon its own particular footing[.]'" Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) (quoting Martindell v. Martindell, 21 N.J. 341, 355 (1956)). Where, as here, the prior motions have been denied without prejudice and without an evidentiary hearing, it was appropriate for plaintiff to file his motion after three years of substantially reduced income.
"[W]e recognize the potential for abuse of the judicial process and waste of personal and judicial resources implicit in the making of repeated 'incremental' motions, and we vigorously disapprove such a course of conduct." Beck v. Beck, 239 N.J. Super. 183, 191 (App. Div. 1990). "A litigant who makes such frequent and repetitive applications for purposes of abuse, harassment, or to secure a 'lateral appeal' should be dealt with by available sanctions, including the payment of realistic counsel fees and costs." Ibid. "He should not, however, ordinarily be penalized by the deprivation of a remedy to which he would otherwise be entitled." Ibid. Here, plaintiff should not have been sanctioned, let alone penalized by denial of relief.
After stating its mistaken premise, the Family Part denied plaintiff's motion, yet again without prejudice. The court ruled that plaintiff's alleged search for employment "hardly transforms [his] current employment posture to permanent or involuntary," and that he "has failed to establish permanently changed circumstances warranting a modification of his alimony obligation." Thus, we must decide whether the court properly determined whether the facts certified to by plaintiff constituted a change of circumstances, and if the change was temporary or voluntary.
"[T]he changed-circumstances determination must be made by comparing the parties' financial circumstances at the time the motion for relief is made with the circumstances which formed the basis for the last order fixing support obligations." Id., at 190; Donnelly v. Donnelly, 405 N.J. Super. 117, 122-23, 127 (App. Div. 2009). Plaintiff certified that his income had been reduced from $110,032 at the time of the JOD to about $55,000 in 2010. Unless temporary or voluntary, that approximately 50% reduction is sufficient to constitute a change of circumstances. See Jacoby v. Jacoby, 427 N.J. Super. 109, 118 (App. Div. 2012) (finding a one-third reduction in income "satisfactorily demonstrate[s] a significant change of circumstances necessitating a review of an obligor's child support obligation"); Dorfman v. Dorfman, 315 N.J. Super. 511, 516-17 (App. Div. 1998) (finding a 40% drop "clearly constitute[ed] changed circumstances"); Walles v. Walles, 295 N.J. Super. 498, 510, 519 (App. Div. 1996) (finding a one-third reduction in income justified seeking an alimony reduction); Beck, supra, 239 N.J. Super. at 189-90.
Plaintiff's substantial reduction in income since August 2008 had persisted thirty-three months before this motion was filed in May 2011. "There is, of course, no brightline rule by which to measure when a changed circumstance has endured long enough to warrant a modification of a support obligation." Larbig, supra, 384 N.J. Super. at 23. "Instead, such matters turn on the discretionary determinations of Family Part judges, based upon their experience as applied to all the relevant circumstances presented[.]" Ibid.
In Larbig, we agreed that an obligor who had filed a motion "a mere twenty months after the entry of the judgment of divorce" had failed to demonstrate that "the change was anything other than temporary." Id. at 22-23. Here, plaintiff's income has been halved for almost three years, more than a year longer than the diminution in income in Larbig. Moreover, plaintiff certified to the substantial efforts he had made to obtain employment at a salary comparable to his earnings at the time of the divorce. See Dorfman, supra, 315 N.J. Super. at 517 (finding an obligor who "sent out resumes, followed through with telephone calls, and arranged for interviews," and "eventually accepted employment" at a reduced rate was not voluntarily underemployed). An obligor who takes lower paying work in his field "after a concerted effort to find the same work at comparable pay" has demonstrated that he "is not voluntarily underemployed in the new job." Storey, supra, 373 N.J. Super. at 472. Plaintiff thus did not present a case where the obligor "made no meaningful effort to improve his status," but allowed his income "to continue to diminish unchecked while bemoaning his fate." Aronson v. Aronson, 245 N.J. Super. 354, 361 (App. Div. 1991); Donnelly, supra, 405 N.J. Super. at 130 n.5.
Finally, it is undisputed that plaintiff's termination by Campbell after it eliminated his position was involuntary. See Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340, 346-47, 348 (App. Div. 2009).
We "'must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with requests to modify alimony,'" and disturb such determinations only where the court abused its discretion. Larbig, supra, 384 N.J. Super. at 21, 23 (quoting Martindell, supra, 21 N.J. at 355). We must hew to that standard of review. Nonetheless, given plaintiff's efforts, the substantial reduction in his income, and the persistence of that reduction for thirty-three months, we conclude that the family court mistakenly exercised its discretion in finding no change of circumstances.
Therefore, in A-0077-11, we reverse the July 22, 2011 order to the extent it denied plaintiff's request for a modification of alimony, and remand to the Family Part to determine whether discovery is warranted. See Lepis, supra, 83 N.J. at 157-58. In particular, the court should consider whether to grant defendant's requests for discovery in her cross-motion regarding her allegations that plaintiff has other income from the trust or has diverted income to his retirement accounts. If, after any discovery permitted by the court is completed, defendant "clearly demonstrate[s] the existence of a genuine issue as to a material fact," the court should conduct an evidentiary hearing. Id. at 159.
Because we are confident the Family Part will resolve this issue promptly and fairly, we reject plaintiff's request that the case be remanded to a different judge. See Feldman v. Feldman, 378 N.J. Super. 83, 99-100 (App. Div. 2005).
III.
In A-2137-11, defendant has appealed, and plaintiff has cross-appealed, the November 21, 2011 order granting plaintiff's motion for college contribution. Defendant has also appealed the denial in that order of her request for mortgage-related fees and counsel fees.
A.
Plaintiff filed his motion for college contribution after he filed A-0077-11. Defendant claims that the Family Part lacked jurisdiction to entertain the motion while that appeal was pending. "The ordinary effect of the filing of a notice of appeal is to deprive the trial court of jurisdiction to act further in the matter unless directed to do so by an appellate court, or jurisdiction is otherwise reserved by statute or court rule." Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 376 (1995).
However, the trial court has "continuing jurisdiction to enforce judgments." R. 2:9-1(a); see D'Atria v. D'Atria, 242 N.J. Super. 392, 402-04 (Ch. Div. 1990). Moreover, where a motion filed after the notice of appeal is "'functionally equivalent to a new action' in that none of the issues pending on appeal" are raised in the later motion, and that motion will not "'affect, impair or destroy the subject matter of the appeal,'" the trial court may address the subsequent motion because it is "collateral to the issues pending on appeal." Van Horn v. Van Horn, 415 N.J. Super. 398, 411 (App. Div. 2010).
Here, plaintiff's motion for college contribution could not moot or otherwise impact the subject matter of A-0077-11, namely the reduction of alimony denied on July 22, 2011. The portion of the July 22 order denying college contribution did so without prejudice and has not been appealed. Finally, plaintiff's certification on the subsequent motion "agree[d] to the use of $110,032 as my income solely for the purpose of determining Defendant's contribution to the costs of our children's college education." Therefore, the family court could address the subsequent motion because it was collateral to the issues pending in A-0077-11.
Defendant also argues that the court erred in entertaining plaintiff's motion because the Family Part in unappealed orders had denied the same relief three times before. She invokes the doctrine of law of the case, "a non-binding rule intended to 'prevent relitigation of a previously resolved issue.'" Lombardi v. Masso, 207 N.J. 517, 538 (2011). "A hallmark of the law of the case doctrine is its discretionary nature, calling upon the deciding judge to balance the value of judicial deference for the rulings of a coordinate judge against those factors that bear on the pursuit of justice and, particularly, the search for truth." Id. at 538-39 (quotation marks omitted).
Plaintiff also filed a motion to reduce his child support due to the room and board expenses he was paying for the children away at college. See Child Support Guidelines, Pressler & Verniero, Current New Jersey Court Rules, Appendix IXA to R. 5:6A at 2597 (2014). In denying that motion on April 21, 2010, the Family Part properly recognized that was a different issue from the parties' obligation to contribute to college expenses under the JOD.
Here, the Family Part did not abuse its discretion because the three prior rulings do not justify such preclusion. Regarding the December 8, 2008 order, the statement of reasons mentioned that plaintiff was seeking college contribution, but the statement addressed only some of his five other requests for relief, and then denied his motion "[i]n all other respects" because "[t]hese issues have been addressed in this Court's prior Orders." However, college contribution had not been addressed in any prior order. "[T]he law of the case doctrine does not obligate a judge to slavishly follow an erroneous or uncertain interlocutory ruling." Gonzalez v. Ideal Tile Importing Co., Inc., 371 N.J. Super. 349, 356 (App. Div. 2004), aff'd, 184 N.J. 415 (2005), cert. denied, 546 U.S. 1592, 126 S. Ct. 1042, 163 L. Ed. 2d 857 (2006).
The September 17, 2010 order denied college contribution without any statement of reasons. Rule 1:7-4(a) requires a trial court to "find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right." Ibid.; see Fodero v. Fodero, 355 N.J. Super. 168, 169-70 (App. Div. 2002). "'[N]aked conclusions do not satisfy the purpose of R. 1:7-4.'" Schwarz v. Schwarz, 328 N.J. Super. 275, 282 (App. Div. 2000) (quoting Curtis v. Finneran, 83 N.J. 563, 570 (1980)). Such a ruling hardly requires application of the law of the case doctrine. See Gonzalez, supra, 371 N.J. Super. at 356.
Moreover, the middle and youngest children continued to attend college until their graduations in 2010 and 2011 respectively. A child's continuing accrual of college expenses may lead to a change of circumstances justifying a new motion for college contribution, and may justify declining to apply the law of the case doctrine to these earlier orders. See Jacoby, supra, 427 N.J. Super. at 113, 117-18; see Weitzman v. Weitzman, 228 N.J. Super. 346, 351, 353-54 (App. Div. 1988).
In the July 22, 2011 order, the Family Part judge denied plaintiff's request without prejudice. See Lanzet v. Greenberg, 126 N.J. 168, 192 (1991) (ruling that for "the determination of an issue to constitute the law of the case, . . . the issue must have been . . . decided"). The judge stated that he was "uninformed regarding Defendant's ability to contribute financially" because it lacked a CIS from defendant, and that plaintiff, who had provided information about his finances, had not provided any financial documentation "evidencing that he, and not his mother, paid for the children's college expenses." Only after receiving that missing documentation did the judge decide the issue on the merits.
The law of the case doctrine "is not meant to prevent a judge from changing a prior decision following 'a newly developed basis in fact, law or context.'" N.J. Div. of Youth & Family Servs. v. J.D., 417 N.J. Super. 1, 24 (App. Div. 2010). In any event, the doctrine "is entirely inapposite where, as here, in trial court proceedings, the same judge is reconsidering his own interlocutory ruling." Lombardi, supra, 207 N.J. at 539.
We thus turn to the merits. The Family Part has "substantial discretion" in awarding college contribution. Gotlib v. Gotlib, 399 N.J. Super. 295, 308 (App. Div. 2008). "In general, financially capable parents should contribute to the higher education of children who are qualified students," even in the absence of an agreement to do so. Newburgh v. Arrigo, 88 N.J. 529, 544 (1982). In Newburgh, the Court set forth twelve factors, id. at 545, each of which were effectively considered by the family court. See Moss v. Nedas, 289 N.J. Super. 352, 360 (App. Div. 1996). Here, "the reasonableness of the expectation" of higher education and whether the parties "would have contributed" to its cost, ibid., was established in the JOD, which provided:
[T]he parties agree[] that they will cooperate to apply for all financial aid available for each child and then twenty-five percent of that child's bonds shall be applied to the balance required for that year's tuition, books, room and board. With respect to the balance remaining thereafter, if any, the parties agree to share same as each is financially able.
Plaintiff's August 10, 2011 motion for college contribution was accompanied by plaintiff's certification that, after applying financial aid and the children's bonds, he paid a total of $124,347.44 for tuition, books, room, board, and fees of the three children. Plaintiff also supplied a certification from his mother attesting that she had not paid the children's college expenses or given money to plaintiff to do so. Plaintiff supported those certifications with tuition statements, invoices, cancelled checks, bank statements, credit card statements, bond inventories, and other records.
The Family Part granted plaintiff's motion and required defendant to contribute towards the cost of the children's college education. The court was satisfied that plaintiff had paid $124,347.44 in college tuition and expenses. Using $110,032 as plaintiff's income and $36,000 as defendant's income, the court calculated that, of the combined income, plaintiff's share was 71% and defendant's share was 29%. The court applied those same percentages to the college expenses, and ordered defendant to remit to plaintiff "$36,060.76, representing her 29% share of the children's college expenses."
On appeal, defendant renews the assertion, made in her certification in response to the motion, that plaintiff admitted to her and to the children that plaintiff's mother paid for some or all of the college expenses. Plaintiff's certification denied any such conversation, and both plaintiff and his mother certified that the college expenses were paid by plaintiff.
Generally, "[d]isputes of material fact should not be resolved on the basis of [conflicting] certifications." Palmieri v. Palmieri, 388 N.J. Super. 562, 564 (App. Div. 2006) (citing Conforti v. Guliadis, 128 N.J. 318, 328-29 (1992)). However, plaintiff submitted extensive financial records, including his bank records, to confirm that he paid the college expenses. Reviewing those copious records satisfied the family court that the college expenses were paid by plaintiff rather than his mother. Defendant has made no effort to show that those records fail to establish that plaintiff paid the expenses.
"As is particularly the case in matters that arise in the Family Part, a plenary hearing is only required if there is a genuine, material and legitimate factual dispute." Segal v. Lynch, 211 N.J. 230, 264-65 (2012). Mere allegations that statements are untrue do not require a plenary hearing. Id. at 265. Where, as here, the dispute can "be resolved based on the documentary evidence," we "discern no error in the trial court's conclusion that [defendant] did not demonstrate any ground on which to be afforded an evidentiary hearing." Id. at 265-66.
Defendant next notes that in equitable distribution under the JOD, plaintiff received "[t]he savings bonds payable to the Husband/Plaintiff." She argues on appeal that these were joint marital savings gifted to both spouses but stolen by plaintiff, that he used $80,000 of those bonds to pay for college, and that she thus has contributed an additional $40,000 to the college expenses. This new argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Defendant also asserts that by being the parent who applied for financial aid, she "achieved $150,000 in Federal Financial Aid for our 3 children due to my low income." However, as required by the JOD, the various forms of financial aid like the children's loans, as well as the children's savings bonds used for college expenses, were subtracted from the total cost in calculating the $124,347.44 balance. The court thus properly considered "the financial resources of the child" and "the availability of financial aid." Newburgh, supra, 88 N.J. at 545.
Defendant contends, without documentary support, that she contributed to the children's college education by paying for their food, clothing, medical care, shelter, and other necessities when they were home from college, and by maintaining the home while they were at college. We note those expenses were partially paid by plaintiff's child support, which the court had declined to reduce even though children were away at school. In any event, the JOD specifically required the parties to share in the children's college "tuition, books, room and board," without reference to their payments for the children's other expenses. Defendant's claim is therefore meritless.
Defendant asserts that the children received other scholarships that should be subtracted from the $124,347.44. Plaintiff, however, certified that sum was the actual balance he paid, and supplied proof, including cancelled checks and credit card statements, which plaintiff again has failed to dispute. See Segal, supra, 211 N.J. at 264-65. Defendant contends that fraternity, sorority, and off-campus housing expenses should be subtracted from the $124,347.44 balance, but they appear to be "room and board" expenses within the meaning of the JOD.
Defendant noted that the $124,347.44 total includes $1,320 in application fees, late fees, and SAT tutor fees. This issue is not of sufficient merit to warrant discussion, particularly given plaintiff's certification that he did not include in that total larger college expenses, including the children's food purchases outside their college meal plans. See R. 2:11-3(e)(1)(E).
Defendant does not dispute the children's efforts "to earn income" to cover some of the college costs, their "commitment to and aptitude for" higher education, the appropriateness of the "kind of school or course of study sought by the child[ren]," or the relationship of the education requested to the children's "long-term goals." Newburgh, supra, 88 N.J. at 545. She does assert that plaintiff decided the children should attend the college of their choice regardless of the cost. She also notes that the children joined fraternities and a sorority, that two children studied abroad, and that the third child took five years to finish college. Defendant did not demonstrate the extent to which college expenses were increased by these activities. In fact, she acknowledges that the children received scholarships for studying abroad.
More importantly, defendant does not claim that she was unaware of or opposed these choices. Indeed, she was the custodial parent, and defendant had no visitation with the children during this period. Given her relationship with the children and their "responsiveness to [her] advice and guidance," Newburgh, supra, 88 N.J. at 545, "[i]t strains credulity" to assert that she did not have the opportunity to influence the children's choices. See Finger v. Zenn, 335 N.J. Super. 438, 444 & n.1 (App. Div. 2000), certif. denied, 167 N.J. 633 (2001). Further, she clearly had a motive to do so, given her agreement in the JOD to share in the college expenses if financially able, and plaintiff's motions but chose not to even after plaintiff filed motions seeking college contribution as early as 2008. She may not complain about those choices only after the children had benefitted from them.
In these circumstances, such complaints ring hollow even though plaintiff's first motion in 2008 was filed after some but not most of the expenses were incurred. See Gac v. Gac, 186 N.J. 535, 547 (2006). This was not a situation where a noncustodial parent, who had no visitation or contact with the child and received no consultation or communication before the selection of an expensive college, was not asked to pay for that child's college expenses until after the child graduated. See id. at 538-39, 545-47; Gotlib, supra, 399 N.J. Super. at 310; Moss, supra, 289 N.J. Super. at 358-59. We conclude that the court properly accepted $124,347.44 as the appropriate "cost of higher education" for which contribution could be sought. Newburgh, supra, 88 N.J. at 545.
Defendant further argues that she should not be ordered to contribute to the children's college expenses because she is not "financially able," as the JOD requires. She incorporates in her pro se brief a letter from the counsel who represented her on this motion. Counsel's letter asserts that the family court disregarded the language of the JOD by ignoring her unemployment status and home foreclosure status, and by treating her alimony income as available for contribution to the college expenses without citing her CIS, which showed her alimony was insufficient to pay her monthly expenses.
Plaintiff moved to strike defendant's reference to this letter, which we consider given the brevity of her pro se brief. To the extent defendant includes in her appendix factual material and negotiations postdating the family court's November 21, 2011 decision, we grant plaintiff's motion to strike the materials from the appendix because they are not part of "the record developed before the trial court." Davis v. Devereux Found., 209 N.J. 269, 296 n.8 (2012); see R. 2:5-4(a). We have given no weight to those assertions in defendant's brief not supported by the record.
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In fact, the family court was well aware of defendant's claim that she was not financially able to contribute to the children's college expenses. The court recounted at length defendant's position that her financial situation had worsened because plaintiff was not paying alimony in a timely fashion, her home was in foreclosure, she was having difficulty paying for food and utilities, she had been a stay-at-home mother during the marriage, and she was currently unemployed with no college degree.
In considering "the financial resources of both parents" and "the ability of the parent[s] to pay," Newburgh, supra, 88 N.J. at 545, the family court recognized defendant's financial position in several ways. The court rejected plaintiff's request to impute income to defendant, stating that "[a]n examination of Defendant's current Case Information Statement reveals that Defendant has been unemployed since January 18, 2011 and her only income is $36,000 each year in alimony." The court also rejected plaintiff's demand that defendant pay 49% of the expenses, that is, $60,920.34, based on her cumulative alimony income over the last eight years. The court instead based her share of the college expenses on her current income of $36,000. Recognizing that defendant might be unable to pay her share within ninety days, the court stated that she "shall be permitted to negotiate a payment plan with Plaintiff."
The court further ordered that the amount defendant owed for the college expenses "should not be counted as a credit against Plaintiff's child support arrears and shall not relieve Plaintiff of his duty to pay same." The court ordered plaintiff to comply with prior support orders, instructed the Probation Department to investigate the garnishment of his income, compelled plaintiff to report any ungarnished income, and entered judgment against plaintiff for $7,620.59 reflecting his arrears.
We also note that the court at plaintiff's behest used his 2004 income of $110,032 to calculate his share, even though he had not earned a comparable salary since 2008. We further note that plaintiff had paid the $124,347.44 in expenses with no contribution from defendant for the many years the children were in college.
"The Family Court possesses broad equitable powers to accomplish substantial justice" in awarding college contributions. Finger, supra, 335 N.J. Super. at 446. Under these circumstances the family court did not exceed its substantial discretion in its analysis of defendant's financial situation.
B.
Plaintiff cross-appeals the family court's decision not to impute income to defendant. Under the JOD, plaintiff paid rehabilitative alimony for sixty months starting in 2004 to permit defendant "to complete her planned college education and/or to obtain vocational training so that she may re-enter the market place." He submitted with his motion an employability evaluation of defendant prepared in 2002 showing she could earn $35,000. He certified that she earned $16,203 from part-time employment in 2009.
However, plaintiff then argued that the court should add those two numbers together, divide by two, multiply by eight years, and add the product of that calculation to the totals of the sixty months of rehabilitative alimony and eight years of permanent alimony. The sum, he argued, showed she had almost as much income as he did and she should therefore pay 49% of the college expenses. The court properly rejected that implausible argument.
Even ignoring the far-fetched theory advanced by plaintiff, he did not make a sufficient showing that defendant, "without just cause, is voluntarily unemployed or underemployed" to compel the court to impute income to her. Caplan v. Caplan, 182 N.J. 250, 268 (2005); see Donnelly, supra, 405 N.J. Super. at 131-132. The employability analysis based on defendant's age and health in 2002 was of lessened utility nine years later. Her part-time earnings two years earlier were also of limited predictive value. Finally, plaintiff failed to proffer evidence of what defendant's income would have been if she had obtained the education and training for which rehabilitative alimony was provided.
In determining defendant's ability to pay, the family court looked to defendant's actual current income of $36,000. Even if the court could have imputed income to her, it could also have discounted her income to reflect her financial circumstances and expenses.
Again, "[w]e must not lose sight of the broad equitable powers of the Family Part to accomplish substantial justice." Weitzman v. Weitzman, 228 N.J. Super. 346, 358 (App. Div. 1988), certif. denied, 114 N.J. 505 (1989). Moreover, "'[i]mputation of income is a discretionary matter not capable of precise or exact determination but rather requiring a trial judge to realistically appraise capacity to earn and job availability.'" Gnall, supra, 432 N.J. Super. at 158. "A trial judge's determination in this regard will not be disturbed absent an abuse of that discretion." Ibid. Because "we accord great deference to discretionary decisions of Family Part judges," Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012), we find no abuse of discretion here.
C.
Next, we address the Family Part's mathematical calculation of the parties' shares. The court stated that "[a]n independent calculation performed by the Court using the stipulated figure of $110,032 as Plaintiff's income and $36,000 as Defendant's income reveals that Plaintiff's commensurate share of the college expenses of the parties' children is 71% and Defendant's share is 29%." The court ordered defendant to remit to plaintiff "$36,060.76, representing her 29% share of the children's college expenses."
In fact, the Family Part's income figures of $110,032 for plaintiff and $36,000 for defendant attributed 75.35% of the combined income to plaintiff and 24.65% to defendant. Using those figures should result in defendant's share being $30,654 of the $124,347.44 in college expenses. We find that that the family court made a mathematical error that requires correction in the interests of justice. R. 2:10-2. We will exercise original jurisdiction to correct the error instead of remanding the matter for that purpose. R. 2:10-5. Accordingly, we affirm the November 21, 2011 order, but modify it to refer to $30,654, representing her 24.65% share of the children's college expenses.
D.
Finally, we turn to the remaining issues raised in A-2137-11. Defendant claimed that because plaintiff had not timely paid his child support in full, her house was in foreclosure. She argued that plaintiff should be ordered to pay her mortgage-related late fees, interest, and counsel fees, and to cosign her application to refinance. The Family Part rejected that request, citing the JOD, which provided that "[t]he marital home shall become the property of the Wife/Defendant," that plaintiff had to "convey all his right, title and interest," and that defendant had to refinance and "remove the Husband/Plaintiff's name from the [mortgage] obligation." The enforcement, collection, and remedies for unpaid child support "are matters addressed to the sound discretion of the court." In re Rogiers, 396 N.J. Super. 317, 327 (App. Div. 2007).
Defendant also contests the family court's denial of counsel fees. After reviewing the factors in Rules 4:42-9 and 5:3-5, the family court noted that defendant had not shown that plaintiff's positions were in bad faith or unreasonable, and that they were partially successful. See N.J.S.A. 2A:34-23. "A counsel fee award is left to the sound discretion of the trial court," and is disturbed "'only on the rarest occasions, and then only because of a clear abuse of discretion.'" Gnall, supra, 432 N.J. Super. at 165 (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995) ).
These arguments are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-5(e)(1)(E).
IV.
In A-0077-11, we reverse and remand. In A-2137-11, we affirm as modified. 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