December 19, 2007
TRACEY ABRAMS, PLAINTIFF-RESPONDENT,
DAVID ABRAMS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-748-03B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 26, 2007
Before Judges Lintner, Parrillo and Alvarez.
Defendant David Abrams appeals from post-divorce judgment orders of the Family Part entered on May 8 and May 16, 2006. For the reasons that follow, we reverse those portions of the orders directing defendant to pay penalties and interest resulting from plaintiff Tracey Abrams' non-payment of her one- half share of the parties' 2003 federal and state income tax liability; to pay all of their daughter's future uncovered medical expenses with Monmouth Psychological Associates, as well as those already incurred with Princeton University Medical Center; and to pay plaintiff's counsel fees. We affirm the orders in all other respects.
The parties were married on June 25, 1989 and have three children, all of whom were unemancipated at the time of the post-judgment motions at issue here. During the marriage, defendant, a licensed chiropractor, earned about $250,000 per year, while plaintiff, a homemaker, earned only $5000 annually. The parties amassed certain assets, including their marital home, a 2001 Jaguar S Type 4.0, a 2000 Dodge Caravan, and a 1998 Cessna 182 airplane. They also held money in several bank and brokerage accounts, and held trust accounts for their children's college education, including one Merrill Lynch & Company account for each of their three children, with plaintiff acting as sole custodian on all three, and a J.B. Hanauer & Company account containing $8000, with defendant acting as sole custodian.
The parties separated in 2002 and began negotiating the terms of their impending divorce. Over one year later, a proposed property settlement agreement (PSA) was drafted, providing for, among other things, alimony to plaintiff of $71,000 per year effective February 1, 2004, reduced to $30,000 per year commencing three years later; equitable distribution*fn1; and equal division of the costs of uncovered medical expenses beyond the first $250, for which plaintiff is solely responsible, plaintiff being obliged to use physicians designated by defendant's medical insurance carrier. Provision was also made for the joint filing of federal and state income tax returns for 2003. As part of the child support obligation, the parties agreed that the existing trust accounts would first be utilized to fund the children's college education before any contribution by the parties, with the exception that defendant would place an additional $109,000 in trust for this purpose. Finally, for present purposes, the PSA provided that a defaulting party would reimburse the other party "for any and all expense, costs and reasonable attorney's fees resulting from or made necessary by the bringing of any suit or other proceeding to enforce any of the terms, covenants or conditions of this Agreement."
On April 29, 2004, the PSA was amended on the record. At that time, the parties clarified that defendant's $109,000 contribution to the children's college education fund would be placed in a new account within eighteen months, with both parties acting as joint custodians. The parties also clarified that defendant would pay plaintiff one-half of the $125,000 equitable distribution ($62,500) one year from that date (April 29, 2005) and the other one-half one year from then (April 29, 2006).
The parties further discussed payment of their 2002 and 2003 federal and state income taxes. At the time, an obligation of $1,031.18 was past due for 2002. An extension had been granted to file their 2003 return, which would have otherwise been past due as well. Regarding the payment of any 2003 taX liability, the parties expressly agreed to split the obligation evenly.*fn2 As to their 2002 tax obligation, specifically, the following discussion between the parties ensued:
[Plaintiff's Counsel]: The 20, the balance left in your trust account, which is $23,500 to each. What's going to happen with that?
[Defendant's Counsel]: Well that's in the agreement . . . Is there any objection to taking the first 2,000 to pay the 2002 taxes?
[Plaintiff]: I object to that. I need that money now. You're holding everything else off on me. I need that now.
[Defendant]: Well, who's going to. [Plaintiff's Counsel]: Let her know what it is and then she'll have to pay it.
[Plaintiff]: And I'll reimburse you for it.
[Defendant]: Oh, okay, all right. [(emphasis added).]
A judgment of divorce was then entered, incorporating the PSA as amended on the record.
Certain post-judgment developments are relevant to the issues on this appeal. The parties' eldest daughter, A.A., had developed an eating disorder and plaintiff sought treatment for her with Dr. Bierne, an out-of-network psychiatrist with Monmouth Psychological Associates (MPA), incurring $570 in uncovered medical expenses. A.A. was also treated by Dr. Erwin, another out-of-network psychiatrist with MPA, incurring $3,402.95 in uncovered expenses. Apparently her condition did not improve and on the advice of the MPA, A.A. was treated at the inpatient psychiatric facility at Princeton University Medical Center. Defendant's medical insurance did not entirely cover A.A.'s treatment at this facility and defendant was directly billed $2,680.04, which he refused to pay. The parties dispute whether defendant was notified of, or consented to, any of these uncovered treatments.
Another post-judgment development concerned payment of the parties' income tax obligations. In August 2004, the parties' accountant, Walter Weinberg, completed the parties' 2003 tax return (on extension) and determined that they owed a total of $9798 in federal taxes and $6530 in New York taxes, due on August 14, 2004. Consequently, defendant paid his one-half share of $4899 to the IRS and $3265 to the State of New York on August 20, 2004. Plaintiff, however, did not pay her share of these taxes. As a result, the IRS assessed the parties $1291.58 in interest and penalties, and the State of New York assessed them $1211.65.
As of June 9, 2005, defendant had failed to make either his first scheduled equitable distribution payment of $62,500, or his $109,000 contribution to the children's college education account. Plaintiff then filed a motion to enforce litigant's rights, and defendant cross-moved for custody. By orders of June 9, 2005, the Family Part judge directed, among other things, that:
 Defendant is hereby ordered to pay to plaintiff the sum of $54,500.00 [of the $109,000 due] within 10 days. . . . Defendant is further ordered to pay the remaining payment of $54,500.00 on or before April 29, 2006.
 Defendant is hereby restrained from removing, transferring or otherwise altering the children's accounts which shall be in the plaintiff's name alone.
 Defendant is hereby ordered to pay plaintiff the sum of $62,500.00 which was due April 29, 2005. . . . Defendant is further ordered [to] make the second installment payment of $62,500.00 on or before April 29, 2006.
 Defendant is hereby not found solely responsible for any and all tax liabilities on the parties' 2002 tax return.
 [P]laintiff shall pay her one-half (1/2) share of the 2002 Federal and State income tax liability. . . .
 [P]laintiff shall pay her one-half (1/2) share of the 2003 Federal and State income taxes, plus interest and penalties.*fn3 . . .
 Defendant is hereby ordered to pay the tax liability for the 2003 tax return and plaintiff shall reimburse defendant her share of the liability from her receipt of the first installment payment of $62,500.00 in equitable distribution.
 [P]laintiff shall stop making unilateral decisions regarding the children, in violation of the joint custody provision of the Property Settlement Agreement.
Neither of the parties appealed these orders. Pursuant to the June 9, 2005 orders, defendant made his first equitable distribution payment to plaintiff in August, but deducted $11,503.24 from the $62,500 due, consisting of the $7203.76 he paid to the IRS for plaintiff's share of the parties' 2002 and 2003 taxes and penalties, and $4300 for plaintiff's share of the New York State taxes and penalties. In part due to defendant's refusal to pay the $2,680.04 bill from Princeton University Medical Center, plaintiff once again moved to enforce litigant's rights seeking, among other things, payment of uncovered medical expenses, reimbursement for taxes, interest and penalties for 2003, and custody of the children's J.B. Hanauer account. Defendant cross-moved to create a joint custody account for the children and for clarification that the June 9, 2005 order served to make plaintiff the sole custodian of the "Merrill Lynch accounts only." (emphasis added).
On May 8, 2006, the Family Part judge issued two orders which collectively provided for, among other things:
 Defendant shall reimburse plaintiff in the amount of $7731.15 for taxes penalties and interest within 30 (thirty) days from the date of this Order.
 Defendant shall reimburse the plaintiff the total sum of $4,300.00 for the parties' joint taxes and all penalties incurred.
 Defendant shall be responsible to pay Monmouth Psychological Associates directly for [A.A.'s] continued medical treatment.
 [P]laintiff shall reimburse the defendant the sum of $2,680.04, representing the outstanding medical bills for the parties' daughter [A.A.] which the defendant paid to the Princeton Health Care System.*fn4
 The June 9, 2005 Order shall not be interpreted to mean that the plaintiff remain as the sole custodian for [t]he children's Merrill Lynch accounts only.
 . . . [D]efendant shall not remain as the custodian over the J.B. Hanauer account in his name.
 Defendant shall pay counsel fees and costs in the amount of $1,550.00 to Lynne Andreades, Esquire, within 30 days of this Order.
Because the judge's May 8, 2006 order contradicted his earlier, June 9, 2005 order which assigned penalties and interest to plaintiff, defendant moved for a remand during the pendency of this appeal, which we granted. On remand, on December 8, 2006, the judge concluded that his original order, which assigned penalties and interest to plaintiff, included a "scrivener's error." The judge opined, given a contrary intent evinced in his statement of reasons to assign the penalties to defendant, he must have inadvertently failed to cross out the words "penalty and interest" in order to limit plaintiff's obligation to the principal.
This appeal follows.
I. Penalties and Interest Resulting From Plaintiff's Non-Payment of Her One-Half Share of the 2003 Tax Liability
In support of his May 8, 2006 order directing defendant to reimburse plaintiff for penalties and interest, the judge reasoned:
The agreement did not state that H was to pay W's portion of the 2003 tax liability. W failed to pay her portion of the 2003 tax liability and penalties were incurred. The June 9, 2005 order compelled H to pay W's share of the 2003 liability and stated that H would be reimbursed from W's share of equitable distribution. . . . H, in accordance with the order, paid W's share and then deducted it from her portion of equitable distribution. However, unbeknownst to either party at that time New York had placed a levy on W's bank account in the amount of $4300 and therefore W has paid twice. H acknowledges that he owes W $4300. The parties['] main argument is over who should be responsible for the penalties incurred because W's share was paid late. Although the agreement did not state that H was to pay W's 2003 share and then later be reimbursed, at the time W was to pay her 2003 liability she still had not received her share of equitable distribution and did not have the funds to pay. . . . H should be responsible for the interest and penalties. [(emphasis added).]
We disagree. The court's assignment of penalties contravenes the clear intent of the PSA.
Agreements between husband and wife executed voluntarily and for the purpose of settling the matrimonial issues between them are specifically enforceable to the extent that they are "fair and equitable." Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995) (citations omitted); Segal v. Segal, 278 N.J. Super. 218, 222 (App. Div. 1994). In fact, our courts specifically encourage the settlement of marital issues through such contractual arrangements. Davidson v. Davidson, 194 N.J. Super. 547, 553-54 (Ch. Div. 1984). Indeed, "fair and definitive arrangements arrived at by mutual consent should not be unnecessarily or lightly disturbed." Smith v. Smith, 72 N.J. 350, 358 (1977).
Inter-spousal agreements dealing with property division and equitable distribution are construed in accordance with general contract law. See Capanear v. Salzano, 222 N.J. Super. 403, 407 (App. Div. 1988). Contra Lepis v. Lepis, 83 N.J. 139, 148 (1980) (finding that "contract principles have little place in the law of domestic relations" in the context of alimony and child support provisions). However, formal and interpretive rules may be subordinated, where necessary, in order to ascertain the "'probable intent of the parties in an effort to find a reasonable meaning in keeping with the express general purposes of the,'" entire agreement and the surrounding circumstances. Argent v. Brady, 386 N.J. Super. 343, 350-51 (App. Div. 2006) (quoting Sinopoli v. North River Ins. Co., 224 N.J. Super. 245, 250 (App. Div. 1990), certif. denied, 127 N.J. 325 (1991)); see also Pacifico v. Pacifico, 190 N.J. 258, 266 (2007). Accord Regan v. Regan, 246 N.J. Super. 473, 478-79 (Ch. Div. 1990).
The general construction of contractual terms is a matter of law for the court. Healy v. Farleigh Dickinson Univ., 287 N.J. Super. 407, 413 (App. Div. 1995), certif. denied, 145 N.J. 372, cert. denied, 519 U.S. 1007, 117 S.Ct. 510, 136 L.Ed. 2d 399 (1996). "The polestar of contract construction is to [ascertain] the intent of the parties as revealed by the language used" in the contract, Sons of Thunder, Inc. v. Borden, Inc., 285 N.J. Super. 27, 47 (App. Div. 1995), rev'd on other grounds, 148 N.J. 396 (1997) (citations omitted), from the purpose of the contract, Simonson v. Z Cranbury Assocs., 149 N.J. 536, 538-39 (1997), as gleaned from the contract itself, K. Woodmere Assocs. v. Menk Corp., 316 N.J. Super. 306, 316 (App. Div. 1998), and "'surrounding circumstances,'" Singer v. Commodities Corp., 292 N.J. Super. 391, 403 (App. Div. 1996) (quoting Marchak v. Claridge Commons, 134 N.J. 275, 282 (1993)). On appeal of a contract interpretation or construction, the determination of law is reviewed de novo. Fastenberg v. Prudential Ins. Co. of Am., 309 N.J. Super. 415, 420 (App. Div. 1998).
The pertinent principles of contractual construction are straightforward. The court makes the determination whether a contractual term is clear or ambiguous. Nester v. O'Donnell, 301 N.J. Super. 198, 210 (App. Div. 1997).
"An ambiguity in a contract exists if the terms of the contract are susceptible to at least two reasonable alternative interpretations. . . . To determine the meaning of the terms of an agreement by the objective manifestations of the parties' intent, the terms of the contract must be given their 'plain and ordinary meaning.'" [Ibid. (quoting Kaufman v. Provident Life & Cas. Ins. Co., 828 F. Supp. 275, 283 (D.N.J. 1992), aff'd, 993 F.2d 877 (3d Cir. 1993)).]
The court should examine the document as a whole and the "'court should not torture the language of [a contract] to create an ambiguity.'" Ibid. (alteration in original) (quoting Stiefel v. Bayly, Martin & Fay, Inc., 242 N.J. Super. 643, 651 (App. Div. 1990)). If the meaning is clear, the contract must be enforced as written.
Although in limited circumstances a court can modify the agreement, we have previously ruled that "the changed circumstances" modification does not apply outside of the context of alimony and child support provisions. Rosen v. Rosen, 225 N.J. Super. 33, 35-36 (App. Div.), certif. denied, 111 N.J. 649 (1988). See Monte v. Monte, 212 N.J. Super. 557, 561 (App. Div. 1986) ("Unlike an award of alimony which can be adjusted after divorce to reflect unanticipated changes in parties' circumstances, a property division or equitable distribution may not be adjusted.").
Here, the PSA, as well as the April 29, 2004 oral modification, is clear and unambiguous. The record demonstrates that at the time of divorce, both parties knew they owed a tax obligation for 2002 to the IRS in the amount of $1031.18, and orally agreed on April 29, 2004 that in the year 2002, defendant would pay the tax and plaintiff would reimburse him her one-half share, or $515.59. However, there was no such reimbursement agreement for the year 2003. Rather, the PSA expressly and plainly stated the parties' obligation to each pay their 50% share of the taxes owed, or equally split any refunds due. In contrast to defendant, plaintiff failed to pay her one-half share of the federal tax or the New York State tax, in August 2004, when they were due, which was in violation of the PSA.
The rather clear implication from the PSA's allocation of tax liability is that the defaulting party be responsible for the interest and penalties. But even more explicitly, paragraph 20.1 of the PSA specifically provides that a defaulting party must "indemnify the other party against or . . . reimburse him or her for any and all expense, costs and reasonable attorney's fees resulting [therefrom]." So clear is the agreement that the court, in its June 9, 2005 order, enforced it as written, directing plaintiff to pay her one-half share of the 2003 federal and state income taxes plus interest and penalties.
Although the court reversed itself in its May 8, 2006 order, now finding defendant liable for penalty and interest, it did so on faulty grounds, namely its impression that plaintiff did not have the money to pay her share of the 2003 taxes because defendant failed to make an equitable distribution payment. Defendant's first scheduled installment payment was not due until April 2005, eight months after the 2003 income taxes were due (on extension, on August 14, 2004). Clearly, at the time of the divorce, when plaintiff agreed to pay her share of the 2003 income tax liability when due, she knew that the first equitable distribution payment was not scheduled until eight months later. Moreover, we find no competent evidence in the record to support the court's finding of plaintiff's financial inability, otherwise, to fund her fair share of the parties' tax obligation. Accordingly, we conclude the court erred in modifying the terms of an otherwise clear and unequivocal agreement to the benefit of the defaulting party.
II. A.A.'s Uncovered Medical Expenses with MPA and Princeton Medical Center
As to the MPA bills, the judge reasoned:
The parties['] daughter suffers from an eating disorder. Monmouth Psychological Associates, the eating disorder facility that daughter has been treating with, will no longer be participating in any insurance plans. W wants to compel H to pay for daughter's $125 weekly visits as there is no other facility in this County that offers these comprehensive services for daughter's condition. H does not consent to daughter treating with this facility and has expressed concern with W's choice as daughter's condition is deteriorating. W acknowledges that daughter has lost even more weight recently but states that this is part of the disease. Under the Property Settlement Agreement W has the obligation to use designated physicians as provided by H's insurance carrier. However, W asserts that this is the only facility in Monmouth County that includes nutritional, group and individual counseling. H has not come forth with any alternate doctor or program and therefore should be responsible for the cost in this best interest of the parties['] daughter. [(emphasis added).]
As to Princeton University Medical Center, the judge concluded that: "It appears that Princeton University Medical Center has accepted H's insurance and that H consented to daughter treating there. W should not have to reimburse H for these bills." Here again, both these decisions contravene the express terms of the PSA.
In contrast to inter-spousal agreements dealing with property division, which, as noted, are usually construed in accordance with general contract law, see Capanear, supra, 222 N.J. Super. at 407, there is some hesitance to apply general contract law to the interpretation of agreements dealing with child support and alimony. Lepis, supra, 83 N.J. at 148 (finding that "contract principles have little place in the law of domestic relations"). It has been said that "[t]he law grants particular leniency to agreements made in the domestic arena, [thus allowing] judges greater discretion when interpreting such agreements." Guglielmo v. Guglielmo, 253 N.J. Super. 531, 542 (App. Div. 1992). Contract principles are still applicable, however, to help discern the parties' intent. See ibid.
In contrast to provisions dealing with equitable distribution and property division, courts have the power to modify support terms where a party can show that there has been a change in circumstances that "substantially impair[s] the dependent spouse's ability to maintain the standard of living reflected in the original decree." Lepis, supra, 83 N.J. at 153 (under the authority of N.J.S.A. 2A:34-23 which provides that support orders "may be revised and altered by the court from time to time as circumstances may require"); Guglielmo, supra, 253 N.J. Super. at 542. The court must also consider the extent to which the supporting spouse's ability to pay permits modification. Guglielmo, supra, 253 N.J. Super. at 542. When children are involved, an increase in their needs -- whether occasioned by maturation, the rising cost of living or more unusual events -- has been held to justify an increase in support by a financially able parent. Lepis, supra, 83 N.J. at 152.
However, modifications are the exception, not the rule. Glass v. Glass, 366 N.J. Super. 357, 379 (App. Div.), certif. denied, 180 N.J. 354 (2004). The burden is on the payee-moving party who must prove that the modification is in the child's best interest, that is, whether their needs have increased beyond which the existing support can provide. Bencivenga v. Bencivenga, 254 N.J. Super. 328, 331 (App. Div. 1992); see Glass, supra, 366 N.J. Super. at 379. Once that has been established, the burden shifts to the payor to show that he or she cannot afford the increase. Miller v. Miller, 160 N.J. 408, 420 (1999). A so-called Lepis plenary hearing, can be ordered where there is a genuine issue as to a material fact. Lepis, supra, 83 N.J. at 159; Miller, supra, 160 N.J. at 420; Murphy v. Murphy, 313 N.J. Super. 575, 580 (App. Div. 1998).
Here, the assignment of the entire cost of A.A.'s medical treatment to defendant is inconsistent with the parties' intent as plainly expressed in the PSA, requiring the burden of paying the children's unreimbursed medical expenses to be shared equally, after plaintiff pays the first $250 per year per child. Even given the "discretion" afforded judges in interpreting such agreements, this conclusion is inescapable. Guglielmo, supra, 253 N.J. Super. at 542. Of course, if the assignment were the result of a modification rather than interpretation of the terms of the PSA, it would fare no better. The record is devoid of any facts of "changed circumstances" supporting such a modification. And while the court found that treatment was in A.A.'s best interest, there was no correlation between allocating the full burden to defendant and the parties' respective abilities to fund the cost. As such, we conclude the court erred in assigning the entire cost of A.A.'s medical treatment to defendant.
III. Counsel Fees
In his statement of reasons accompanying his May 8, 2006 order awarding plaintiff counsel fees of $1550, the judge explained: "H failed to abide by the terms of the settlement and counsel fees are therefore awarded to W." (emphasis added). Presumably, the judge was referring to the fact that defendant's failure to pay equitable distribution caused the late payment of taxes and the resulting penalty assessments, for which she incurred legal fees in enforcing her perceived rights under the PSA. This finding, however, also used by the trial court to support imposition on defendant of the obligation to pay penalty and interest, is fatally flawed, for the same reasons we struck down the court's other ruling.
The PSA clearly provides that the defaulting party is responsible "for any and all expense, costs and reasonable attorney's fees resulting from or made necessary by the bringing of any suit or other proceeding to enforce any of the terms . . . ." (emphasis added). While defendant may not have made timely payment of equitable distribution, the lapse occurred well after plaintiff's tax payments were due and therefore is not the cause of the penalty and interest assessment for which plaintiff was liable. Moreover, the equitable distribution payment was made before the present motion giving rise to the orders now on appeal. In fact, that motion was made to compel defendant to pay the penalties on the taxes and A.A.'s unreimbursed medical expenses, and not for payment of equitable distribution. As the former were clearly not defendant's obligations under the PSA, and therefore defendant was not a "defaulting party" thereunder, defendant was not liable under the PSA for plaintiff's counsel fees. Accordingly, the court's award of counsel fees to plaintiff was not a reasonable exercise of the court's discretion.
Defendant raises a host of other issues for our consideration, including:
I. THE TRIAL COURT SHOULD HAVE RECUSED ITSELF FROM HEARING THE CASE BECAUSE THE JUDGE HAD PREVIOUSLY MADE A DECISION THAT DEFENDANT WAS NOT CREDIBLE ON TWO PRIOR DOMESTIC VIOLENCE HEARINGS.
II. THE TRIAL COURT ERRED IN THE "ABRAMS" MAY 8, 2006 ORDER BY DIRECTING THAT THE PARTIES WERE NOT TO OPEN A THIRD CUSTODIAL ACCOUNT FOR THE CHILDREN IN BOTH PARTIES' NAMES PURSUANT TO TERMS OF THE SETTLEMENT AGREEMENT.
III. THE TRIAL COURT ERRED BY . . . DENYING THE DEFENDANT'S REQUEST THAT PLAINTIFF PAY HIS COUNSEL FEES AND COSTS.
We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part; reversed in part.