Opinion
DOCKET NO. A-5121-13T3
10-29-2015
KELLY LAKE, Plaintiff-Appellant, v. EDWARD LAKE, Defendant-Respondent.
Kelly Lake, appellant, argued the cause pro se. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and O'Connor. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-169-12. Kelly Lake, appellant, argued the cause pro se. Respondent has not filed a brief. PER CURIAM
Plaintiff Kelly Lake appeals from aspects of two post-judgment orders entered by the Family Part on November 4, 2013 and May 19, 2014 in favor of her ex-husband, defendant Edward Lake, on the parties' cross-motions. Specifically, plaintiff appeals from the provisions of those orders denying her request for reimbursement of certain babysitter expenses on the ground they were not work related, denying her $2005.02 in alimony and child support arrears and granting defendant's motion ordering her to provide him copies of her work schedule and to comply with the parties' marital settlement agreement (MSA). Plaintiff also appeals from the denial of her motion for reconsideration of those determinations.
The parties were divorced on February 5, 2013 following an eleven and a half year marriage. Their twins were born in 2010. Plaintiff has an MFA in drama and currently teaches drama and writing as an adjunct professor at two colleges. She has spent the last seventeen years as a part-time professor but is taking steps to secure more lucrative full-time work.
To that end, she acted in one play and was an uncompensated assistant director in another during the summer of 2013. The record reveals she received a total of $520 for her work and incurred babysitting expenses of approximately $2200 for the time involved. Plaintiff submitted a spreadsheet with her initial motion of purported work-related child care expenses and checks written to child care providers, but did not explain whether the costs were incurred because she was teaching, acting or directing until her motion for reconsideration.
The MSA incorporated into the parties' judgment of divorce provides that defendant "will pay 55% . . . of agreed upon work[-]related child care expenses." The MSA further provides that "[c]osts of agreed upon nursery school, agreed upon summer day camp (when utilized as a form of work[-]related child care), and sick-child care are recognized as work-related child care expenses." Although the MSA provides that "[f]or the spring 2013 semester, [plaintiff] shall pay 100% of evening work-related child care expenses," it makes clear that "[a]ny future evening work-related child care expenses shall be discussed between the parties, including use of family if possible." Finally, the MSA specifies with respect to "agreed upon work[-]related child care expenses" that "neither party may unreasonably withhold consent."
Judge Fitzpatrick provided the parties with written statements explaining her reasons for the relief ordered. With regard to the babysitting expenses, the judge wrote:
The Court denies plaintiff's request for reimbursement of the children's babysitter expenses as the Court finds (1) that they were not work related child care expenses as contemplated in the parties' MSA and (2) that the plaintiff unilaterally incurred the cost of same without consulting the defendant.
. . . .
The Court concludes that the basis for the bargain in the MSA was that evening work related expenses would be incurred when the plaintiff was teaching evening classes. The Court assumes based on the proofs provided
that since the children were in daycare until 4:45, five days a week that the plaintiff used the babysitters on weekends and evenings, when she was acting and producing plays . . . , not teaching.
. . . .
Lastly, plaintiff failed to consult with defendant before incurring the cost of same, had she done so defendant would have objected based upon his arguments presented during oral argument. Under the MSA the parties are to discuss and agree before undertaking any evening child-care costs. There was no evidence presented to the Court that plaintiff consulted with defendant and he agreed to same before plaintiff hired the babysitters, there is only proof that she submitted the receipts of same on Family Wizard after the costs were incurred.
As to plaintiff's claim for child support arrears, the court found defendant was not in arrears. The court explained that the arrears listed by probation were in error because defendant paid plaintiff directly until the wage garnishment took effect, a fact acknowledged in writing by counsel who were then representing the parties.
With regard to the order directing plaintiff to produce her work schedule, the court explained that "[a] large point of contention in this application for these parties was identifying work-related expenses. Without plaintiff providing a work schedule it will be impossible for the parties to identify and agree to same." The court granted defendant's request that plaintiff be ordered to comply with the parties' parenting time plan reflected in the MSA, which requires plaintiff to accept changes to his parenting time schedule on fourteen days' notice "unless the new date conflicts with plaintiff's pre-existing obligations."
The judge explained that she denied plaintiff's motion for reconsideration because plaintiff failed to demonstrate anything the court overlooked or how it erred and that "plaintiff cannot additionally submit evidence to take another bite of the apple because she failed to provide adequate proofs in her original motion."
Plaintiff raises the following issues on appeal.
Point I. THE COURT ERRED IN (A) DETERMINING THE BABYSITTING CHARGES WERE NOT WORK-RELATED; (B) MISCALCULATING ACTUAL MONTHLY CHILD CARE EXPENSES TO BE $2,400.00; AND (C) IN REQUIRING KELLY TO PROVIDE WORK SCHEDULES
Point II. THIS COURT DID NOT RELY ON COMPETENT EVIDENCE AND ERRONEOUSLY RELIED UPON STATEMENTS OF COUNSEL AS TO THE $2005.02 ARREARS, AS DETERMINED BY PROBATION
Point III. THERE WAS NO EVIDENCE THAT PLAINTIFF FAILED TO COMPLY WITH MSA AND DEFENDANT SHOULD ALSO HAVE BEEN ORDERED TO COMPLY WITH THE MSA
Our review of the record convinces us that none of these arguments is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Judge Fitzpatrick carefully explained her reasons for each item of relief she either granted or denied. Although we acknowledge that plaintiff might be able to raise a legitimate question as to whether her participation in community theatre could necessitate work-related child care given her position as an adjunct professor of drama, she did not make a case for it here. The cost of child care far outstripped her remuneration, and she did not persuasively explain how this particular work, even if not lucrative, would enhance her employability. Cf. Storey v. Storey, 373 N.J. Super. 464, 471 (App. Div. 2004) (discussing acquisition of education, training or experience likely to enhance future earnings in the context of a career change).
We accord great deference to the conscientious judgment involved in the discretionary decisions of the judges of the Family Part and accord them wide leeway in their selection of appropriate remedies. Milne v. Goldenberg, 428 N.J. Super. 184, 197-99 (App. Div. 2012). Plaintiff has provided us no reason to second guess Judge Fitzpatrick's rulings or remedies on this record. See Hand v. Hand, 391 N.J. Super. 102, 111-12 (App. Div. 2007).
We affirm the orders under review substantially for the reasons expressed by Judge Fitzpatrick in her written statements of reasons accompanying the orders entered on November 4, 2013 and May 19, 2014.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION