Opinion
DOCKET NO. A-5477-11T3
12-03-2015
MARIE GERON, Plaintiff-Respondent, v. PHILIP GERON, Defendant-Appellant.
Karin Duchin Haber argued the cause for appellant (Haber, Silver and Simpson, attorneys; Ms. Haber, of counsel and on the briefs; Amy L. Miller, on the briefs). Keith N. Biebelberg argued the cause for respondent (Biebelberg and Martin, attorneys; Mr. Biebelberg, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent, Accurso and Manahan. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-1534-06B. Karin Duchin Haber argued the cause for appellant (Haber, Silver and Simpson, attorneys; Ms. Haber, of counsel and on the briefs; Amy L. Miller, on the briefs). Keith N. Biebelberg argued the cause for respondent (Biebelberg and Martin, attorneys; Mr. Biebelberg, on the brief). The opinion of the court was delivered by NUGENT, J.A.D.
When plaintiff Marie Geron and defendant Philip Geron divorced in May 2008, ending their twenty-five year marriage, defendant agreed to pay for their five children's "preparatory school and college." Disputes over the scope of defendant's obligation led to motion practice and eventually to this appeal, taken by defendant from Family Part orders dated July 15, 2011, and June 21, 2012.
Defendant argues on appeal the trial court committed these errors: (1) not sanctioning plaintiff for denying him access to the children's school records; (2) not declaring one son emancipated, miscalculating the amount of this son's remaining college expenses, and not giving him a credit for grant monies this son did not use for college; (3) not ordering reimbursement to him for certain college expenses incurred by another son and for money missing from that son's college savings account; (4) ordering reimbursement by him of $4000 for tuition payments related to a daughter's summer trip to Spain; (5) not transferring to defendant the children's custodial accounts; (6) refusing to vacate a prior order's provision that he had violated litigant's rights; and (7) ordering defendant to pay part of plaintiff's counsel fees.
Because plaintiff agreed defendant would receive a credit for certain grant monies — an issue not addressed in the trial court's decision - we reverse as to that issue and remand to the trial court to amend the orders accordingly. We affirm the orders in all other respects.
I.
A.
This action's procedural history, particularly the post-judgment orders clarifying defendant's obligation to pay for the children's educations, are directly relevant to the issues defendant argues on appeal. The May 5, 2008 divorce judgment incorporated a settlement agreement (SA) the parties had placed on the record during the divorce hearing but had not reduced to writing. Two parts of the SA are relevant to this appeal: first, the parties agreed they would divide their real property and each would refinance so as to remove the name of the other party from the resulting new mortgage. Second, defendant agreed to "pay 100 percent of the educational costs for the children, both for preparatory school and college[,] . . . includ[ing] tuition, books, room and board, fees, travel, and an allowance to the children." We will refer to this provision of the SA as the "Education Obligation."
Disputes concerning defendant's Education Obligation and other support obligations resulted in considerable motion practice. The motion practice led to arbitration and ultimately to the entry of post—judgment orders dated July 6, 2009, October 4, 2010, and December 1, 2010. In addition to enforcing numerous terms of the parties' SA, the first order provided:
Effective as of June 10, 2009, each child of the marriage, while in college, must send an invoice as to all college expenses (except if already or intended to be paid directly by defendant such as tuition, room and board, or any other college costs), required to be paid as set forth in the transcript agreement of May 5, 2008 to defendant, who must either pay such cost directly or reimburse the child (or the plaintiff, if the plaintiff had to advance such sum) by no later than 30 days from the date of presentment; defendant's obligation to pay for room and board for the children during college shall not be capped at any sum.
The October 4, 2010 order included this provision:
Going forward, the parties and the four younger children are reminded that the defendant's obligation to pay the children's "college expenses" pursuant to the [SA] is limited to tuition, books, room and board, college fees, travel to and from New Jersey for school breaks and school supplies, and an allowance of $100 per week.The order reiterated the children's obligation to send defendant invoices as to college expenses and further provided:
Defendant is not obligated to pay the allowance of $100 per week per child in college for any week that the child is not in school or taking summer classes, and it is the child's responsibility to notify the defendant in writing of any week during summers when he or she will be in school, or forfeit the allowance for that week. This [c]ourt finds that "college expenses" under the terms of the [SA] do not include clothing and shoes, or entertainment.
The orders also required plaintiff to provide defendant: before the beginning of each semester, "with proof of the children's application for scholarships, grants, loans and financial aid and the results of said applications"; and in January and July of each year, for the preceding six-month period, "documentation of the amounts in the children's 529 accounts." Similarly, the order required the children attending college to provide both parties, "[b]eginning with the fall semester of 2010, . . . a copy of their grades for each semester within 10 days of their receipt of them at the end of each semester until they are emancipated."
Established pursuant to 26 U.S.C.A. § 529, such accounts provide tax advantages to promote the saving of money for college expenses. The children had 529 accounts and the parties had agreed at the divorce hearing that defendant would be able to use the 529 accounts when paying the children's college expenses.
On May 25, 2011, defendant filed a motion, seeking to have one of the parties' sons emancipated as of June 1, 2011 — before the son began his fifth year of college — and for other relief. In response, plaintiff filed a cross-motion opposing emancipation and requesting reimbursement from defendant for college expenses she had paid for the children.
Following oral argument, the court entered an order on July 15, 2011, the first of the two orders from which defendant appeals. In that order, the court denied defendant's motion to emancipate the child entering a fifth year of college as well as other relief defendant had sought, but granted his request to compel the children attending college to provide him with past and future transcripts and to authorize his access to their college billing records. The order granted plaintiff's cross-motion to find defendant in violation of litigant's rights for failing to refinance certain mortgages and remove her name from existing mortgages. The court also scheduled a plenary hearing to resolve remaining issues.
The court conducted the plenary hearing on August 22, 2011, October 31, 2011, and January 9, 2012. Thereafter, the parties agreed to provide written submissions as to the remaining issues. The court filed a comprehensive written decision on June 21, 2012, granting and denying the parties' various requests for relief. Among other things, the court required defendant to reimburse plaintiff for certain college expenses incurred by three of their children, granted defendant access to more financial information about the children's college expenses and college-savings accounts, and denied defendant's request to vacate the previous finding that he was in violation of litigant's rights. The court ordered defendant to pay $30,000 of plaintiff's counsel fees. Defendant appealed from both the pre-hearing and post-hearing orders.
B.
We derive the following facts from the parties' pre- and post-hearing submissions and from the proofs the parties developed during the hearing. In August 2011, when the plenary hearing commenced, the children's ages ranged from nineteen to twenty-three. The oldest child was emancipated, the next older was scheduled to start his fifth year at the University of Miami, and the other three were scheduled to return to other colleges to continue their educations. In addition to defendant's claims that financial information concerning his children's educations had been withheld from him, the issues litigated at the hearing concerned two of the parties' sons and their two daughters, to whom we shall refer as the older son and younger son, and the older daughter and younger daughter.
1. The Older Son's Emancipation and College Expenses.
The older son testified he attended the University of Miami and had a "creative writing and biology double-major on a pre-dental track." To apply for dental school, he was required to complete, among other courses, four chemistry courses and a calculus course. He had yet to complete a fourth chemistry course or the calculus course. He also needed ten credits to complete his biology major and one three-credit literature course to complete his creative writing major. Defendant was aware of his older son's dual major; he paid for his older son to take two chemistry courses at Drew University in New Jersey over a summer semester so that he would graduate within four years despite the increased course load inherent in such a dual major.
Defendant supported his older son's goal of attending dental school. Defendant paid $1429 during the son's senior year at Miami so that the son could take a review course for the Dental Admissions Test. Additionally, defendant said he had a long-term special arrangement with the University of Medicine and Dentistry of New Jersey (UMDNJ), where he had been teaching for twenty-five years. That school had "slots [available] for sons and daughters of professors" and, according to defendant, he made a deal with the school where he would "teach for no salary, . . . [and] if one of my children wants to go, I have a connection there."
By the end of the spring semester of his senior year in May 2011, the older son had completed 117 semester credits of course work. He needed a minimum of 120 credits to graduate with a degree. At that time, according to a letter from a college official, the older son still required twenty-one semester credits of course work — eight credits of calculus, ten credits of biology, and three credits of organic chemistry — to obtain a bachelor of science degree with dual majors in biology and "English-Creative Writing" and a minor in chemistry. He needed only a single, three-credit course in literature to obtain a bachelor of arts degree with a major in English-Creative Writing and minors in biology and chemistry. According to the older son, he needed to complete an organic chemistry course to apply for admission to certain dental schools.
The older son testified that, at some point during the second semester of his senior year, he realized he would not have enough credits to graduate in May 2011 with a dual-major degree in biology and creative writing. He also realized he needed to go to college for a fifth year to obtain the twenty-one credits necessary for his dual-major degree. He thought dental schools would view a degree that included a biology major much more favorably than a degree with only a creative writing major. For those reasons, he told defendant and defendant's girlfriend in the summer or fall of 2010 that he would need to go to college for a fifth year. The older son intended to apply to dental schools after graduating.
Defendant disagreed his son needed a fifth year of undergraduate school. He believed the older son was on an "appropriate [four]-year track" to graduate in May 2011. According to defendant, before April 18, 2011, the older son "never told me that he wasn't graduating" on time.
Defendant's reference to April 18, 2011, concerned an email the older son sent defendant about needing twenty credits to graduate with a dual-major degree. The son also explained he would not be graduating in May 2011, and he had a "potential graduation date of May 2012." In response, defendant filed the motion seeking an order emancipating the older son effective June 1, 2011.
Defendant insisted he never agreed to pay for five years of college. In his certification supporting his motion, defendant averred his son said he had applied for and was hoping to get into dental school at New York University in the Fall 2011. His son denied the assertion. Nevertheless, defendant maintained that he never agreed to pay for five years of college.
Plaintiff and the older son presented evidence as to tuition, other educational expenses, and living expenses the son incurred in the spring of 2011, during the summer of 2011 when he worked as a volunteer at an eye institute in Miami, and for the 2011-2012 school year. Defendant challenged some of this evidence.
During the extended proceedings on the motion, defendant obtained considerable information concerning his son's educational expenses and aid while attending Miami. The information revealed that during the older son's 2010-2011 school year at Miami — for which defendant paid the tuition — the university awarded the older son grant monies totaling $11,000. The older son had the university refund the monies to him. The university did so in five checks ($4304.48 + $750.00 + $2050.00 + $2000.00 + $2000.00 = $11,104.48). He then deposited the $4,304.48 check in a joint bank account that he had with plaintiff, and the other checks, totaling $6800.00, in his own account. He used monies from his account to support himself over the spring and summer of 2011.
The parties and the court do not explain the $104.48 discrepancy between the two $5500 grants ($11,000) and the refund total of $11,104.48
In January 2012, the older son sent defendant a check for $4304.48, the money in the joint bank account, but did not return the remaining $6800. Defendant accused plaintiff and the older son of misconduct and demanded plaintiff "be responsible to reimburse defendant for the balance of the grant monies - $6800 — that were misappropriated from defendant by [the older son] with the assistance of plaintiff." Defendant also asked the trial court to sanction plaintiff "for her behavior and involvement in this fraud" and to "direct[] plaintiff to reimburse these funds to me immediately." Plaintiff replied:
I will agree to reduce the amount of reimbursement I am seeking from defendant, by the exact amount that [the older son] withheld in financial aid (less the sum of $4,304, which [the older son] has already returned to defendant).
. . . .
In response to defendant's further accusations of dishonesty, plaintiff denied she aided her older son, asserted she did not condone his conduct, and noted he had used the funds to pay legitimate college-related and living expenses defendant had refused to pay. She repeated her willingness to give defendant a dollar-for-dollar credit.
I offer to adjust the amount of reimbursement I am seeking from defendant to credit the amount of funds [the older son] kept (and has not already repaid to defendant), the sum of $6,800. I simply want to have defendant cease his crusade against [the older son].
2. The Younger Son's College Expenses.
The parties' younger son attended Boston College for the 2011 spring semester. During that semester, plaintiff paid $1002.54, which she claimed was for reimbursable college expenses for their younger son, and which defendant had refused to pay. The expense was for food the younger son had purchased.
According to the younger son's testimony, he used an "Eagle-One" card at Boston College for his formal dining plan and used the "Eagle Bucks" feature of that card for "everything else, including optional dining for when money runs out." By early April of the 2011 spring semester, he had depleted the dining-plan feature of the Eagle-One card, and plaintiff deposited monies into his Eagle Bucks account for his expenses, including food purchases. Many such food purchases were made late at night during study sessions.
On July 24, 2011, the younger son sent an invoice to defendant for spring semester travel expenses of $783, which defendant paid, and for his total spring semester Eagle Bucks expenditures of $1002.04, which defendant did not pay. Along with the invoice, the son included a telephone number defendant could dial and request "Online Eagle Bucks Receipts for Dining, Washing/Drying, [and] Extra Money for the Dining Plan."
In its written decision, the trial court miscalculated the amount of that invoice to be $1002.54, when it should have been $1,002.04 ($664.59 + $322.45 + $15.00 = $1002.04).
On July 26, 2011, defendant sent a reply email stating that the Eagle Bucks receipts "[c]annot be accessed without your EB number. Therefore, payment toward the $1002.04 [Eagle] Bucks cannot be addressed. Again, extra food, snacks, red bulls, after hour delivery charges for takeout are not covered. I will gladly review the proper receipts for allowable expenses when I get access to same."
The younger son testified that he understood his Eagle Bucks card was to be used to pay for college expenses, which would be reimbursed by defendant, while his $100-per-week allowance was to be used for movie tickets, video games, and things like that, which would not be reimbursed by defendant. He acknowledged there were some expenses that were difficult to categorize as reimbursable or non-reimbursable. He testified that he sent every bill he considered to represent a legitimate college expense to defendant, and "either he reimburses me or not."
In addition to claiming he did not have to reimburse plaintiff for the younger son's $1002.04 Eagle Bucks expense, defendant claims plaintiff should reimburse him $5859, a sum allegedly missing from the younger son's 529 college-savings account. In the original motion he filed in May 2011, defendant claimed the younger son's 529 account had been "drained," and though defendant sought access to the full records concerning the account, he nevertheless alleged he had paid the younger son's tuition "with no reimbursement for 529 monies, nor application of those monies towards tuition." Notwithstanding his allegations, in a certification filed in response to plaintiff's cross-motion, defendant asked rhetorically, "how can I verify that [plaintiff] used the 529 monies towards [the children's] tuition, if I have never been provided the statements?"
Defendant did obtain additional information about the younger son's 529 account. In an August 18, 2011 letter from his attorney to plaintiff's attorney, defendant asserted the younger son's 529 account started with a balance of $58,419.15. The attorney then purported to summarize "billing statements" for the younger son's Fall and Spring 2011 school year. The attorney's letter concluded:
Based upon the above, only $50,246.00 should have been withdrawn from the 529 account to over the Fall 2010 and Spring 2011 tuition/room/board/fees. Yet your client withdrew $56,105.00 from this account in August and September 2010. Your client owes $5,859.00 to [the younger son's] 529 account, or she owes this money directly out of her own funds for next semester's fees.Defendant sought reimbursement for that amount.
3. The Older Daughter's Fees for Study Abroad.
The parties' older daughter spent a summer in Spain. Defendant denied owing the expenses of that trip as part of his Education Obligation.
The older daughter sought to obtain a degree as a "bilingual nurse" at Loyola University and had taken classes in Spanish toward that end. She wanted to attend a study abroad program in Spain during the summer of 2011 sponsored by the university, but that program had no vacancies. The university authorized her to enroll in a similar study abroad program sponsored by the University of Maryland. To pay for that program, she was permitted to use $4000 of the roughly $30,000-per-year in scholarship funds she received from Loyola University. She attended the program and received three credits towards graduation at Loyola.
The program in Spain cost $4000. The university sent the older daughter a check for $4000, which she gave to plaintiff. Plaintiff then paid for the program with that $4000. In the meantime, the older daughter contacted defendant and told him about her acceptance into the program and that he would not have to pay for any expense associated with it.
When defendant was presented with the bill from Loyola University for the older daughter's fall 2011 expenses, he objected that $4000 of her scholarship funds had been used to pay for the program and that he would be charged $4 000 more in tuition payments in order to compensate for that $4000 depletion of the scholarship funds. Consequently, defendant refused to pay $4000 of the university's tuition bill.
In September 2011, plaintiff was compelled by the university to pay the $4000 that was still owed for the older daughter's tuition. In its order of June 21, 2012, the trial court directed that "defendant must reimburse plaintiff $4000 in tuition money which she paid to Loyola to make up for the use of the scholarship money."
C.
In its July 2011 and June 2012 orders, the trial court denied defendant's motion to have the parties' older son emancipated as of June 2011. The court did not address defendant's claim for reimbursement of the balance of the $11,000 that plaintiff had agreed to credit him. The court granted plaintiff's request for reimbursement of the older son's educational expenses for the Fall 2011 semester.
As to the younger son, the court ordered defendant to reimburse plaintiff for the expenditures on the Eagle Bucks account for the 2011 Spring semester and denied other claims by plaintiff for reimbursement. The court did not resolve defendant's claim concerning the younger son's 529 account and defendant's allegation that monies had been withdrawn from that account and not used for educational expenses. Rather, the court ordered plaintiff "to provide the defendant through counsel with copies of the quarterly statements . . . for the fourth quarter of 2010, and the second, third, and fourth quarters of 2011."
The court required defendant to reimburse plaintiff for the costs associated with the parties' older daughter's 2011 summer trip to Spain. The court also denied defendant's request that the provision of the previous order finding him in violation of litigant's rights be vacated. Lastly, the court ordered defendant to pay $30,000 toward plaintiff's counsel fees.
II.
Our review of a Family Part judge's decision is limited. We give considerable 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)). When a Family Part judge has made findings of fact after considering the testimony and documents the parties have presented during a hearing, the judge's findings are generally "binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).
That is so because of "the family courts' special jurisdiction and expertise in family matters." Id. at 413. Just as important, the trial judge is in the best position to make judgments as to whether witnesses are believable. Clark v. Clark, 429 N.J. Super. 61, 71 (App. Div. 2012). For those reasons, we will not reverse a trial judge's findings of fact unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Id. at 70 (quoting Rova, supra,, 65 N.J. at 484).
Unlike a trial judge's fact and credibility findings, the judge's "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." 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)). A trial judge "is in no better position than we are when interpreting a statute or divining the meaning of the law." D.W. v. R.W., 212 N.J. 232, 245 (2012). We review the legal issues anew. Id. at 245-46.
A.
1. The Older Son.
With those principles in mind, we turn to defendant's claims concerning the older son. Defendant first claims the trial court should have declared the older son emancipated as of June 1, 2011, after he had completed four years of college. Defendant argues that because plaintiff and their older son refused to provide his school records for four years, he did not know his older son needed only three credits to graduate at the end of the Spring of 2011. He asserts that the older son "did not need to be a 'full-time' student" because he needed only one class to graduate with a degree. Under those circumstances, defendant claims his older son was not a full-time student and therefore should have been emancipated.
Indisputably, "parents are expected to support their children until they are emancipated, regardless of whether the children live with one, both, or neither parent." Colca v. Anson, 413 N.J. Super. 405, 414 (App. Div. 2010) (quoting Burns v. Edwards, 367 N.J. Super. 29, 39 (App. Div. 2004)). When a child becomes eighteen years old, the child is presumed to be emancipated. N.J.S.A. 9:17B-3. The presumption is rebuttable, not conclusive, and the issue is fact-sensitive. Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). Once the presumption of emancipation arises, the burden of proof to rebut the statutory presumption shifts to the person seeking support. Llewelyn v. Shewchuk, 440 N.J. Super. 207 (App. Div. 2015); Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997).
Children are emancipated when they have moved "beyond the sphere of influence and responsibility exercised by a parent and obtain[ed] an independent status of [their] own." Ibid. (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)). The fact-sensitive evaluation must include consideration of issues such as the "child's need, interests, and independent resources, the family's reasonable expectations, and the parties' financial ability, among other things." Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006); see also Newburgh, supra, 88 N.J. at 545.
The trial court properly undertook the fact-sensitive analysis concerning the older son's emancipation. The court evaluated the "child's need, interests, and independent resources," as well as the family's reasonable expectations and defendant's financial ability, which was never disputed. Dolce, supra, 383 N.J. Super. at 18. Those considerations were amply supported by the record. The court committed no error in denying defendant's motion to have the older son declared emancipated as of June 2011.
In undertaking its fact-sensitive analysis, the trial court reasoned that defendant had been aware the older son was on a pre-dental track at college, was seeking to graduate with a dual major, and intended to go to dental school, a goal defendant shared. Focusing on this shared goal, the court noted, "it isn't just a question of graduating but it's graduating and doing what . . . his parents believe he should do next." The court concluded the older son was not emancipated because he had "not moved beyond the sphere of influence of his parents and he's doing pretty much what he's supposed to do" by pursuing graduation and admission to dental school.
The court could not understand, however, why the older son left so many science and mathematics courses to be taken in his fifth year or why he had not taken any courses over the summer of 2011. With the parents and older son's goal of dental school in mind, the court reasoned that the older son could graduate in December 2011 if he took a three-credit literature course and that he could apply to dental school if he took an Organic Chemistry course. Accordingly, the court ordered defendant to pay the tuition for those two courses only. In the 2011 fall semester, the older son took the literature and chemistry courses, along with two other three-credit courses. We find no error in either the court's denial of defendant's emancipation motion or in the court's allocation of tuition for the older son's final year in college.
He graduated college in December 2011, with a Bachelor of Arts degree, majoring in creative writing and minoring in both biology and chemistry.
The court also ordered defendant to pay $19,874.06 for the older son's educational expenses at Miami during the 2011 fall semester. Defendant contends the court erred in doing so for three reasons: the older son needed only a three-credit course in Literature to graduate with a creative writing degree, which the son could have taken during the summer; plaintiff represented in her first sworn certification on the motion that the older son needed eight courses to graduate; and, the court allocated the older son's $5500 scholarship for the Fall 2011 semester to plaintiff's share of his educational expenses, rather than allocating the scholarship equally between plaintiff and defendant.
Addressing defendant's first argument, the trial court explained:
What this argument overlooks is the fact that the information about the course given August 5-12, 2011 was not available to counsel and the court before the first date of the plenary hearing on August 22, 2011, and it would not have taken into account [the older son]'s need to complete Organic Chemistry II at UM in order to minor in Chemistry and qualify for dental school.The trial court's finding is supported by plaintiff's evidence and the older son's testimony.
Defendant's second argument warrants little discussion. Defendant claims plaintiff came to the court with unclean hands, having misrepresented the number of courses the older son needed to graduate, and was rewarded for her misrepresentation. Plaintiff was referring, however, to the courses she perceived the older son needed to complete a dual-major degree in creative writing and biology with a chemistry minor. Significantly, in its July 15, 2011 order, the court addressed the issue of a dual-major degree and reserved for the plenary hearing the issue of "[w]hether the defendant must pay the cost of another year of college at the University of Miami for [the older son] to complete a double major in creative writing and biology with a minor in chemistry." As previously noted, the older son ultimately pursued a different degree. Plaintiff's certified statement about the additional courses was not false when she made it, considered in its context.
Defendant's third claim is that the court arbitrarily allocated the older son's $5500 scholarship to plaintiff's share of his tuition without explanation. We disagree. The court explained in its written decision:
This [c]ourt finds that it is important to emphasize that when the parties entered into their Settlement Agreement, and the defendant agreed to pay 100% of the children's educational expenses, they knew that there were 529 plans available to defray some of those costs, but there was no provision in the Agreement that the children were required to apply for scholarships or that their mother would be required to apply for financial aid. Clearly, several of the children . . . have been very successful at obtaining scholarships. Their mother, while she was single, was also very successful in obtaining financial aid grants for them, that would have been impossible to obtain if the parties had remained married because of the defendant's substantial income.Considering the broad obligation defendant assumed, and further considering the disparities in the parties' incomes, we conclude the court did not abuse its discretion in allocating the $5500 scholarship.
Because the parties did not dispute the disparities in their respective incomes, it is unnecessary to discuss the amount of either defendant's income or assets in this opinion.
Lastly, as to the older son, defendant argues the court abused its discretion by not providing a credit for the grant monies the older son received but did not remit to defendant. The court did not address the issue in its opinion. Plaintiff effectively consented to the credit, not because of any wrongdoing as alleged by defendant, but rather to put an end to what plaintiff considered to be defendant's mistreatment of the older son. In view of plaintiff's concession, we remand this matter to the trial court to amend the final order and apply a $6800 credit to the amount defendant owes plaintiff.
2. The Younger Son.
Defendant makes two arguments concerning the younger son: first, the court erred by requiring defendant to reimburse plaintiff for the food expenses the younger son paid for with his Eagle Bucks card. Although the trial court pointed out that reasonable minds could differ as to whether the food charges were college expenses, defendant had not informed the younger son that he would not pay for such expenses until after they were incurred.
In resolving this issue, we find significant that the parties did not reduce their settlement agreement to writing and that defendant undertook to pay "100% of the educational costs for the children," including room and board, without any further delineation of what constituted room and board. We also find significant that in his October 4, 2010 order, the trial judge
declined to develop a list of other items which are not reasonably considered "board" or "school fees" as to distinguished from items that the children should be expected to pay from their allowances or included in child support, but refers the parties to Schedule C of a Case Information Statement for the categories of such items, and expects that the parties would discuss any differences of opinion on these issues with each other and then with the children with respect for one another and a view to resolving the issues informally without the need for court intervention.
Defendant's email to his son, containing his unilateral declaration that he was not obligated to pay for such expenses, violated the spirit if not the letter of the court's October 4, 2010 order. In view of defendant's unqualified agreement to pay the children's educational expenses, including room and board, and defendant's apparent failure to discuss any differences of opinion on the issue of the food expenses with either plaintiff or the younger son, defendant in effect decided to take a stand and have the court determine the issue. We discern no abuse of discretion in the court's determination, particularly in view of the younger son's testimony that when the expenses at issue were incurred, his meal plan had been exhausted. Accordingly, we reject defendant's argument that the court erred by requiring him to reimburse the expenses.
Next, defendant contends the trial court erred by not requiring plaintiff to reimburse him money that had been withdrawn from the younger son's 529 account. We decline to address that issue, because adequate proofs were not presented to the trial court. More importantly, the trial court established a procedure for resolving the dispute. In its decision, the trial court directed:
The plaintiff must provide . . . the missing quarterly statements for [the 529] accounts within twenty days of the entry of this order through counsel. This court will also order the defendant to make the payments he owes to the plaintiff to the trust account of [plaintiff's counsel] within twenty days to hold for a period of fourteen days to permit the attorneys to review the statements for the [529] accounts to determine whether any adjustment should be made in the amount of reimbursement owed to the defendant. If the parties are unable to agree on this issue, they are directed to submit the documentation to an agreed upon accountant or attorney for mediation, or arbitration if they wish, and to release the balance of the funds not in dispute to the
plaintiff by the end of the [fourteen] day period.
In line with that direction, the trial court ordered:
All reimbursement payments due from the defendant to the plaintiff under the provisions of this order must be paid within [twenty] days to the attorney trust account of [plaintiff's attorney] and held for a period of [fourteen] days to permit the attorney to review the statements of the 529 accounts to determine whether any adjustments should be made in the amount of reimbursement due from the defendant. If the parties are unable to agree on this issue, they are directed to submit the documentation to an agreed upon accountant or attorney for mediation, or arbitration if the parties so choose, and to release the balance of the funds not in dispute to the plaintiff by the end of the [fourteen] day period.
Defendant's argument on appeal is not easily discernible. He asserts, "[p]laintiff's own documents confirm defendant's statements that funds were missing from [the younger son's] 529 accounts." Yet, defendant also claims he did not have the complete account statements. Plaintiff acknowledges "there appeared to be a small discrepancy in [the younger son's] account, [but] there was no clear evidence in the record that plaintiff had acted improperly and that the discrepancy was caused by [anything] more than incomplete or inaccurate bookkeeping." Plaintiff also points out that defendant made the accusations despite having incomplete information.
We agree with the trial judge that the record was inadequate to make a factual determination as to what amount, if any, was missing from the younger son's 529 account. More significantly, the parties agree that plaintiff had not produced complete 529 statements or her own records of expenditures from those accounts.
Indisputably, there is an open issue about whether defendant is owed a credit for monies removed from the younger son's 529 account but not used for college expenses. The parties have three options to resolve the issue. First, they can communicate and resolve it without resort to third parties. Second, they can avail themselves of the remedy provided by the trial court. Third, they can make an appropriate application to the trial court based on a complete record, now that the missing financial information has presumably been provided.
3. The Older Daughter.
Defendant contends the court erred for two reasons when it declined to give him a credit for the $4000 cost of the older daughter's summer in Spain: first, he claims he did not consent to the program and was assured it would cost him nothing; second, he contends plaintiff never sought reimbursement until she belatedly made the claim in her written summation to the trial court.
The trial court rejected defendant's first contention, explaining:
[D]efendant's position that he did not consent to [the older daughter]'s participation in the program was unreasonable given its relationship to her overall [bilingual-nursing] program, the fact that summer programs abroad for college students are a common part of their overall educational experience, and the fact that [the older daughter] has paid such a large portion of the cost of her own college education that her father was otherwise obligated to pay.Moreover, as the court noted, there was no reason for the older daughter not to take advantage of a summer program to earn credits toward graduation; and, as the court further noted, "defendant was not required to pay for the [study abroad] program directly because the olde[r] daughter was able to apply her scholarship money to the cost, but as a result, an additional [$4000] was required to pay her tuition . . . that would otherwise have been covered by scholarship money." The trial court reasoned that defendant's indirect payment for the program by way of the increased tuition charge was not unreasonable or improper, because he agreed to pay all of the children's legitimate educational expenses and that no cap had been placed on that obligation. The increased tuition was thus an expense that defendant had earlier agreed to shoulder, no matter whether the daughter received any scholarship aid and no matter what amount of aid she received.
Viewed somewhat differently, the trial court found that the program was a legitimate educational expense because such programs abroad for college students are a common part of their overall educational experience and because this specific program was related to her plan to become a bilingual nurse. Because defendant had agreed to pay all of the children's legitimate educational expenses without limit, defendant could have been directly billed for his daughter's attendance at the program, had his daughter sought to have the program paid for in that manner. Accordingly, we reject defendant's argument.
We also reject defendant's argument that plaintiff belatedly raised the issue. In her letter summation, plaintiff was addressing the provision of the July 15, 2011 order that "[d]efendant's request to not be held responsible for any tuition, college expenses, fees, or costs, or $100 week allowance related to [the older daughter]'s summer 2011 abroad trip to Spain or elsewhere is reserved . . . to allow verification of [the older daughter]'s account by defendant." Moreover, defendant initially raised the issue by denying he had any obligation to pay for the program.
In short, contrary to defendant's contention, the issue concerning his responsibility for the older daughter's trip to Spain was introduced well before plaintiff submitted her summation letter. Consequently, the trial court properly rejected defendant's argument. The court committed no error in doing so.
B.
Having considered defendant's remaining arguments, we find them to lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only these comments.
We discern from the record that each party accused the other of withholding information at various stages of the litigation. Such accusations are not uncommon in Family Part actions, particularly in cases where emotions generally run high. Our deference to the experienced judges who preside over Family Part actions is especially warranted when they deal with such accusations. Our review of the record in this case leads us to conclude that the trial court appropriately dealt with the issues concerning disclosure. We find no basis for concluding the court abused its discretion in dealing with these issues.
The court's refusal to vacate its order finding defendant violated litigant's rights was amply supported by the record and by no means an abuse of discretion. Nor did the court abuse its discretion in awarding counsel fees. The trial court analyzed the parties' fee application under Rule of Professional Conduct 1.5(a) as well as the criteria set forth in Rule 5:3-5(c). The court's factual determinations with respect to these factors were amply supported by credible evidence in the record.
For the foregoing reasons, we remand this matter to the trial court to amend the final order to provide for a $6800 credit to defendant. We affirm both orders in all other respects.
Affirmed in part, reversed in part, and remanded to the trial court to amend the June 21, 2012 order consistent with this opinion. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION