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Murnen v. Murnen


February 28, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-137-96B.

Per curiam.


Argued December 19, 2007

Before Judges Payne and Messano.

In this post-judgment matrimonial action, plaintiff Judith B. Murnen appeals from those portions of a January 2, 2007, order that denied without prejudice her motion to enforce the child support provisions of a previously-entered property settlement agreement (PSA) between her and her former husband, defendant Stephen R. Murnen, and further denied her request for counsel fees. The salient facts are essentially undisputed.

Plaintiff and defendant were divorced on December 12, 1995, with the judgment of divorce incorporating a previously-executed PSA dated August 2, 1995. The PSA provided that custody of the parties' three daughters would be shared jointly; defendant would pay $1000 per month per child, until emancipation, which was defined in the PSA as any child's completion of undergraduate studies; unreimbursed medical expenses, clothing, music lessons, camp, and other special activity expenses would be shared equally by the parties; college and related expenses would be covered through the establishment of an education trust funded by seventy-five percent of defendant's bonuses and the parties would share expenses not covered by the fund; private school tuition would be shared equally by the parties; and defendant would pay plaintiff alimony for a limited duration of ten years.

Thereafter, several post-judgment applications were made culminating in a consent order dated April 14, 2003 (the revised PSA). The revised PSA eliminated the education trust fund; provided that defendant would be one-hundred percent responsible for the children's college-related expenses and set an amount defendant would pay for each girl's wedding; altered the methodology for computing defendant's alimony obligations; increased child support obligations to $1650 per month for the youngest daughter and decreased the amount for the two older daughters to $500 each per month; provided for equal sharing of the costs of music lessons, camp and other special activity expenses as to their youngest daughter; required defendant to assume one-hundred percent of the private school tuition costs for their youngest daughter; and required defendant to pay plaintiff an additional lump sum of alimony in the amount of $17,000.

While the revised PSA was in place, the court issued an order to show cause dated August 18, 2003, temporarily transferring custody of the three children to defendant. By order dated September 25, 2003, the judge transferred residential custody of all three girls to defendant, permitted him to enroll his youngest daughter, fifteen years old at the time, in school in Illinois where defendant now resided, and suspended defendant's child support obligation "until further notice of th[e] court."

Over the ensuing months, plaintiff filed a motion to enforce the alimony portions of the PSA arguing that the method for calculation of defendant's obligations should yield a greater monthly amount. She also sought counsel fees.

Defendant cross-moved seeking to have the court impute income to plaintiff, award child support for his youngest daughter, and award him counsel fees. Apparently while these applications were pending, the parties began an exchange of e-mails in which they attempted to resolve certain issues.

After some preliminary e-mails in which the two parties negotiated a number of items related to the custody, support, and outstanding expenses of their youngest daughter, plaintiff set forth the terms of her understanding of the parties' consensual agreement in an August 27, 2004, e-mail. As it relates to the issues on appeal, plaintiff and defendant agreed that their daughter would live in Princeton with plaintiff, though defendant would still have legal custody, and that defendant would pay $1650 per month in child support. Plaintiff agreed to a temporary $400 per month reduction to allow defendant to recoup costs already expended for private school tuition in Illinois. Plaintiff then noted, "I understand that you do not want to pay full child support through college. But, on the other hand, our Agreement does say that child support would be paid through college and that issue has nothing to do with [our daughter] in 2004." Plaintiff suggested, "How about holding that issue in abeyance until it becomes an issue."

Defendant answered the e-mail the next day, and stated, "[he] [was] fine with this . . . ." He added that while he had no objection to "putting this on paper," if it "include[d] any language related to child support during college, [he] [would not] sign it." He continued, "The fact that I am now obligated to pay all tuition makes the payment of child support to you while [our daughter is] away at college ludicrous." The agreement reflected in the e-mail exchanges was never reduced to writing.

On August 30, 2004, the motions previously filed were decided and the judge incorporated his conclusions into a written memorandum. In short, the judge ordered defendant to pay plaintiff $5729 per month in alimony, imputed yearly income to plaintiff in the amount of $24,000, ordered plaintiff to pay defendant $147 per week in child support for her youngest daughter, and denied both parties' request for counsel fees.

The parties' youngest daughter returned to New Jersey to live with plaintiff in September 2004 and the parties apparently operated under the terms of their consensual e-mail agreement until May 2006. Then, in an e-mail to plaintiff dated May 4, defendant advised that he was forwarding the child support payments for July and August. However, he noted, "Th[ese] are the last checks you will receive. When [our daughter] goes away to school I will pay all of her expenses directly."

On July 14, 2006, plaintiff moved to enforce the terms of the PSA regarding child support and sought continued payments during her daughter's college years; payment of one-half of the child's extracurricular activities; the costs of her daughter's travel to and from Illinois; and counsel fees. Defendant opposed plaintiff's requests, and by cross-motion he sought a permanent end to monthly child support obligations for his daughter; reimbursement of plaintiff's delinquent child support payments; and he agreed, contingent upon the cessation of child support, to pay one hundred percent of [his daughter's] "unreimbursed medical expenses, activity costs, travel and clothing."

The parties orally argued the motions on September 8, 2006, and the judge reserved decision. In a short statement of reasons that accompanied his order of January 2, 2007, the judge denied without prejudice plaintiff's request for continued monthly child support. He reasoned that the September 25, 2003, order "superseded the provisions of the PSA," because it was based upon "a change of circumstances," the children residing with defendant, "that was not contemplated by the PSA." Since the September 2003 order had never been amended, the judge reasoned that defendant's voluntary payment of child support did "not serve to revive the PSA or [] supersede [the 2003] order."

Although plaintiff sought an order requiring defendant to pay half of her daughter's other expenses, the judge ordered defendant to pay one-hundred percent of these and denied defendant's request for reimbursement of child support arrearages, finding defendant "failed to meet his burden of proof on this issue." The judge denied both parties' request for counsel fees. This appeal followed.

In a statement of amplification filed pursuant to Rule 2:5-1(b), the judge further explained his ruling. He noted that defendant had agreed to pay all of his daughter's college costs at Georgetown University; he found this was not simply a concession defendant made in exchange for plaintiff's agreement to forego any claims to a previous distribution of Accenture stock. The judge noted that plaintiff's motion was more properly "a request to re-establish child support rather than [a request] to enforce the PSA." Thus, the burden was more properly upon plaintiff to "demonstrate the actual need for child support," which she had failed to do. The judge noted his order allowed plaintiff "to re-file a motion to prove actual need over and above these expenses that defendant is responsible for paying."

Plaintiff contends that the motion judge erred because the terms of the PSA are still in full force having never been modified. Alternatively, plaintiff contends that there was no unforeseen change of circumstances that rendered the PSA support provisions inequitable, that the parties' expectations would be fulfilled by enforcement of the PSA's provisions, and that she reasonably relied upon those provisions as modified in 2003 because she withdrew any claim she had to defendant's Accenture stock distribution as a result. Plaintiff also contends she is entitled to an award of counsel fees.

Defendant argues the appeal should be dismissed because the judge denied plaintiff's request without prejudice and, therefore, the order is not appealable as of right. Alternatively, he argues that the judge correctly determined that changed circumstances resulted in the September 2003 order terminating his support obligations, that the court never modified that order, and that plaintiff had failed to demonstrate her entitlement to child support. He also contends the judge did not mistakenly exercise his discretion by refusing to grant plaintiff's counsel fee request.

We quickly dispatch with defendant's first argument that the appeal should be dismissed. Although the judge denied plaintiff's request without prejudice and noted her ability to re-file a future motion to re-establish child support, he did so only after determining the PSA was no longer in effect, thus imposing the burden of proof upon plaintiff. Contrary to defendant's assertions, the order was final as "to all issues and all parties" and therefore appealable as of right. Caggiano v. Fonture, 354 N.J. Super. 111, 123 (App. Div. 2002); R. 2:2-3(a)(1).

Likewise we eliminate plaintiff's procedural argument in which she claims that defendant was not entitled to modification of the PSA because he failed to abide by Rule 5:5-4, which requires the submission of a Case Information Statement by the party seeking a modification of his child support obligations. Defendant, however, did not seek modification of his child support payments; they had been suspended by the September 2003 order that had never been modified by any subsequent court action. We therefore think it is appropriate to turn to consideration of the merits of plaintiff's argument.

We begin by noting that our review of the motion judge's findings is limited. Those findings will typically remain undisturbed unless "they are so wholly unsupportable as to result in a denial of justice," and are upheld wherever they are "supported by adequate, substantial and credible evidence." Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974).

"Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).

Plaintiff asserts that while the September 2003 order suspending defendant's child support obligations was never judicially modified, the parties voluntarily reinstated the terms of the PSA. Plaintiff points to the e-mail exchanges as proof of the parties' intent. However, the e-mail exchanges more properly evidence a course of negotiations between the parties by which they sought to establish new terms. For example, in an earlier e-mail, defendant initially proposed that his child support obligations for his youngest daughter be reduced to $800 per month; when this was rejected by plaintiff, he increased the offer to $1250 per month and ultimately to $1650 per month. Plaintiff and defendant agreed to leave the issue of continued monthly child support during their daughter's college years open for a future date.

Thus, while the judge did not specifically reference the e-mail exchanges in his decision, the evidence in the record supports a finding that the parties sought to modify the PSA and revised PSA in significant respects, but they chose to leave for a later time resolution of the question of how long the monthly child support obligations would continue. In fact, plaintiff is the one that suggested this alternative.

Therefore, the judge's conclusion--that defendant's willingness to pay child support while his daughter resided with plaintiff did not serve to revive the parties' agreement--is amply supported by the record. In short, plaintiff's application was not properly a motion to enforce the terms of the PSA but rather was correctly viewed by the judge as a request to reinstitute defendant's child support obligations at a level previously agreed upon before a significant change of circumstances occurred and before the parties subsequently renegotiated the issue.

Since we agree with this basic premise, much of plaintiff's argument becomes superfluous. While plaintiff is correct in her assertion that PSAs should be given great deference by the court, this general rule is always subject to exceptions. See e.g., Ordukaya v. Brown, 357 N.J. Super. 231, 241 (App. Div. 2003)(noting that the right to make "bad deals" does not extend to child support, where the most critical issue is the children's interests). Despite the contractual nature of the marital agreement, "contract principles have little place in the law of domestic relations," Lepis v. Lepis, 83 N.J. 139, 148 (1980), and PSAs are only enforceable to the extent that they are fair and equitable. Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995).

We also accept the basic proposition that "the parental duty to support a child may not be waived or terminated by a property settlement agreement." Patetta v. Patetta, 358 N.J. Super. 90, 95 (App. Div. 2003). However, given the present posture of this case, where a prior, unmodified court order terminated defendant's support obligations, and the parties thereafter negotiated changes but never agreed on a final resolution, the issue now must be determined "based upon an evaluation of the child's needs and interests." Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993); see also Isaacson v. Isaacson, 348 N.J. Super. 560, 582-83 (App. Div.) (discussing the balancing of a parent's financial condition with the actual needs of the child so as avoid a windfall), certif. denied, 174 N.J. 364 (2002). We discern that this is precisely what the motion judge made available to plaintiff by entering an order that denied the relief she sought without prejudice.

"An award of support is within the discretion of the trial court. It will not be disturbed unless it is 'manifestly unreasonable, arbitrary, or clearly contrary to reason or to the evidence, or the result of whim or caprice.'" Raynor v. Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999) (quoting DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976)). Under the facts presented, we can find no mistaken exercise of the motion judge's discretion. Once he properly concluded the prior court order terminated defendant's child support obligations, and the conduct of the parties thereafter did not resurrect the original or revised PSA, he attempted to equitably decide the appropriate support obligations of each party. He did so with full cognizance of the current situation that had evolved over the more than eleven years since the original PSA was entered, and the nearly four years since the revised PSA was consensually agreed to by the parties. The judge's order terminated the monthly support obligations of defendant since his daughter no longer resided at home with her mother, while at the same time it imposed upon defendant the significant obligation to fully fund his daughter's college expenses and other un-reimbursed and miscellaneous expenses. Therefore, we affirm this portion of the order under review.

We move to consideration of plaintiff's second contention that the motion judge's denial of her request for counsel fees was a mistaken exercise of his discretion. In rather cursory fashion, the judge held that attorney's fees were unwarranted because plaintiff had not prevailed on her claim. Plaintiff argues that she partially prevailed on her claim because defendant agreed to pay one-hundred percent of their daughter's other expenses, and that reversal is required because the judge failed to consider the other factors that supported her request.

Defendant argues that plaintiff's contention is without merit because the fee request was deficient and lacked the requirements set forth in Rule 4:42-9, and because it was otherwise not warranted when measured against the factors contained in Rule 5:3-5(c).

The award of counsel fees in a matrimonial action rests in the sound discretion of the court. Addesa v. Addesa, 392 N.J. Super. 58, 78 (App. Div. 2007). That discretion is to be exercised by careful consideration of the factors set forth in Rule 5:3-5(c). The judge must also assess the application in light of the requirements set forth in Rule 4:42-9(b),(c), and (d). Pressler, Current N.J. Court Rules, comment 4.1 on R. 5:3-5(c) (2008). Whether a party prevails on her application is merely one factor in determining if an award of counsel fees is appropriate, and the failure to prevail does not necessarily preclude an award. Kingsdorf v. Kingsdorf, 351 N.J. Super. 144, 158 (App. Div. 2002).

Because the judge failed to consider the other factors contained in the rule, or, if he did, he failed to articulate his findings and conclusions, R. 1:7-4(a), we are unable to determine whether his ruling was an appropriate exercise of his discretion. Boardman v. Boardman, 314 N.J. Super. 340, 349 (App. Div. 1998). We must, therefore, reluctantly remand the matter for further consideration of the issue.

Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.


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