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DOCKET NO. A-1647-14T2 (N.J. Super. App. Div. Apr. 13, 2016)

DOCKET NO. A-1647-14T2


J.C.S., Plaintiff-Respondent, v. M.A.S., Defendant-Appellant.

Martine & Katz Scanlon, P.A., attorneys for appellant (Shira Katz Scanlon, on the briefs). Shapiro & Shapiro Counselors at Law, P.C., attorneys for respondent (Richard A. Shapiro, on the brief).


NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Manahan. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-123-11. Martine & Katz Scanlon, P.A., attorneys for appellant (Shira Katz Scanlon, on the briefs). Shapiro & Shapiro Counselors at Law, P.C., attorneys for respondent (Richard A. Shapiro, on the brief). PER CURIAM

Defendant M.A.S. appeals from the Family Part's October 21, 2014 order compelling him to pay his pro rata share of his youngest daughter's Hebrew school tuition. We affirm.

The parties were divorced in 2010. They have two daughters, M.S. (Miriam), born in 1996, and N.S. (Naomi), born in 2003. Plaintiff was the parent of primary residence (PPR) of both girls until 2011, when defendant became PPR of Miriam.

We utilize pseudonyms for the children.

In their property settlement agreement (PSA) incorporated into the divorce judgment, the parties agreed to share the cost of the girls' "[a]ctivities such as sports, lessons, etc." that were "mutually acceptable to both parties . . . ." Their proportionate shares were subject to annual adjustment. The PSA did not specifically address religious education.

Implementation of this provision was marked by discord and post-judgment litigation. In April 2013, plaintiff sought to compel defendant to contribute to the costs of Naomi's horseback riding lessons and summer camp. Defendant sought reimbursement for expenses he incurred in 2011 for Miriam that included a United Synagogue Youth (USY) encampment, USY conventions, and an online Hebrew course. The parties exchanged allegations that these expenses were incurred unilaterally.

The parties' relationship was acrimonious in other respects, and plaintiff ultimately obtained a final restraining order against defendant in 2011. --------

In April 2013, Judge Kathleen M. Delaney ordered defendant to pay his share of the camp costs, but not the riding lessons, after finding the camp was in Naomi's best interests. Defendant's proportional share was adjusted to sixty-two percent, with plaintiff bearing thirty-eight percent. The court denied defendant's request for reimbursement. The court also ordered that, "going forward," agreements about the children's activities must be in writing, in order to reduce future disputes.

In June 2014, plaintiff filed a motion to compel defendant to pay his share of Naomi's Hebrew school tuition. Both parties supported a Jewish education for their children. The girls attended Hebrew school before and after the divorce. Miriam attended Camp Ramah, which is affiliated with Conservative Judaism, and continued her Hebrew education after her Bat Mitzvah by taking online classes. Naomi had attended Hebrew school since she was five years old. In 2012, defendant selected a date in 2016 for her Bat Mitzvah at their synagogue. He cancelled the date the following year; he explained he had learned plaintiff decided to pay for Naomi to celebrate her Bat Mitzvah in Israel.

After the divorce, the Hebrew school billed the parties separately for their daughters' expenses. The record reflects that defendant ceased paying his share of Naomi's tuition in the 2012-2013 school year. The school deemed defendant's unpaid share a scholarship for two school years, and allowed Naomi to continue attending based on plaintiff's partial payment. However, the school notified plaintiff in May 2014 that it required full payment for 2014-2015.

Plaintiff asserted she was unaware that defendant did not pay his share in 2012-2013 and 2013-2014. Defendant disputes that, and points to documents including a July 2012 email from the Hebrew school to plaintiff stating, "it was brought to our attention by [defendant] that the agreement you had in the past (splitting the tuition) is about to change with [Miriam] entering Midrasha. [Defendant] will be paying for Midrasha and you will be paying for [Naomi's] [Religious School] . . . ."

Defendant opposed paying a proportionate share of the 2014-2015 tuition, relying on the April 2013 order and the PSA. He contended there was no written agreement regarding the 2014-2015 Hebrew school expenses for Naomi and that he had paid unreimbursed expenses related to Miriam's religious education. He also objected to paying for Naomi's tuition because he was not invited to her Bat Mitzvah in Israel.

Plaintiff contended the April 2013 order was prospective and thus did not apply to activities in which the children were already engaged. She noted the parties had previously agreed their daughters would receive a Jewish education, and defendant had continued paying his share of Naomi's religious education after the divorce, until the 2012-2013 school year. Plaintiff asserted that whether defendant attended Naomi's Bat Mitzvah did not determine whether he was responsible to pay his share of tuition, noting that Naomi was in a separate tutoring program to prepare her for her Bat Mitzvah.

On October 21, 2014, Judge Donald J. Stein granted plaintiff's motion and ordered defendant to pay his proportionate share of Naomi's tuition "through to confirmation." The judge reasoned that the April 2013 order requiring written agreements only applied to new activities, and the parties' agreement regarding Hebrew school costs predated that order. The judge found that continuing Naomi's religious education was in her best interests; it had played a significant role in her life, and she relied on it continuing. The judge specified on the record that the order did not cover the separate expenses for Naomi's Bat Mitzvah training, as that issue was not before the court. The judge noted it was unclear whether defendant would be included in the Bat Mitzvah.

On appeal, defendant renews his argument that the April 2013 order required a written agreement that he would continue to share the costs of Naomi's religious education. He argues that even if the 2013 order did not apply, there was no mutual assent as required by the PSA, since he had ceased paying for religious school after the 2011-2012 school year.

We accord deference to the family court's factfinding because of its "special jurisdiction and expertise" in family matters. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). However, we review de novo the trial judge's conclusions of law, including his construction of the PSA. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); Kieffer v. Best Buy, 205 N.J. 213, 222-23 (2011).

Having carefully reviewed defendant's arguments in light of the record and applicable principles of law, we affirm substantially for the reasons set forth in Judge Stein's oral opinion. We add the following brief comments.

Defendant argues the PSA and April 2013 order give him unbridled authority to withhold consent to special expenses. He is mistaken. The PSA obliges the parties to share special expenses if mutually acceptable. However, implicit in the PSA and the 2013 order is the parties' obligation to act reasonably and in their children's best interests. See Colca v. Anson, 413 N.J. Super. 405, 414 (App. Div. 2010) (the child's best interest is the "greatest and overriding consideration" in a family court matter) (internal quotation marks and citation omitted). "It is axiomatic that the court should seek to advance the best interests of the child where her parents are unable to agree on the course to be followed." Asch v. Asch, 164 N.J. Super. 499, 505 (App. Div. 1978). Although the PSA is an agreement between the parties, parents may not "bargain away a child's right to support[,] because the right to support belongs to the child, not the parent." Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006); see also Kopak v. Polzer, 4 N.J. 327, 333 (1950) (stating that a child "cannot be prejudiced by an agreement between parents").

The April 2013 order required written agreements "going forward" to avoid disputes over whether an agreement on an expense had been reached. But, the order did not increase either party's authority to refuse to agree, or void prior agreements to contribute to long-term activities.

We recognize that defendant begrudges contributing to Naomi's religious school expenses, given plaintiff's lack of contribution toward certain expenses he incurred for Miriam. However, Miriam's expenses are not the issue here. Furthermore, by distinguishing Bat Mitzvah tutoring costs from regular Hebrew school tuition, Judge Stein's order also accounted for the sad fact that defendant was apparently not going to be a part of his daughter's Bat Mitzvah in Israel.

In sum, Judge Stein correctly interpreted the PSA and April 2013 order and found that the parties had previously agreed to support Naomi in her pursuit of a Jewish education, and that it served Naomi's best interests to require the parties to continue to do so.

Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.