On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-5328-86.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Sapp-Peterson and Messano.
In this post-judgment matrimonial action, plaintiff Kristin O'Connell appeals from that portion of the April 10, 2006 order granting her former spouse, defendant Andrew Nataloni's cross-motion for a downward modification of child support and denying her motion to recover all reasonable attorney fees she incurred in connection with her motion to enforce the terms of their Property Settlement Agreement (PSA). Plaintiff contends the trial court erred in ordering a downward modification of defendant's child support obligations, erred in its determination of the amount of imputed income attributable to defendant, failed to take into consideration the financial contributions of defendant's second wife, and awarded plaintiff an insufficient amount of attorney's fees. We affirm the orders in all respects except as to the award of counsel fees.
The parties were married in August 1983. At the time of the marriage, defendant was a third-year resident in obstetrics/gynecology (ob/gyn) at Flushing Hospital and Medical Center in Queens, New York. The only child of the marriage, H.N., was born in June 1984, at the end of defendant's third year of residency. Plaintiff, at the time of the marriage, held two bachelor's degrees and a teaching certificate, and prior to the birth of H.N., had been working for a weight-loss company. The parties reported their joint income for 1984 as approximately $31,400.
During the last ten months of defendant's third year of residency, the parties moved to Bergen County, New Jersey, to accommodate plaintiff's dislike for New York, which increased defendant's commute and negatively impacted on the time he was able to spend with H.N. Subsequently, during the summer of 1985, defendant relocated the family from New Jersey to Riverhead, New York, where defendant had been raised, where his father, also an ob/gyn physician, maintained a practice, and where defendant wanted to begin his practice. Plaintiff remained in Riverhead for a very short period of time before returning to New Jersey with then one-year-old H.N. to live with her parents in Westwood. Plaintiff filed for divorce in September 1985, and in June 1988 the parties entered into a PSA that was incorporated into the Dual Final Judgment of Divorce (JOD) granted by the court on September 14, 1988.
Under the PSA, defendant agreed to pay $9,100 per year in base child support. The agreement contained an "escalator clause" that increased child support annually in accordance with the Consumer Price Index (CPI) but also allowed defendant to contest the CPI increase if his income did not increase consistent with the CPI. Defendant also agreed to promptly pay, "upon demand," the reasonable cost of special lessons and extracurricular activities, including summer camp activities, ballet lessons, music lessons, and swimming lessons. Further, the parties also agreed that child support would continue until H.N. was emancipated, which the agreement defined as the earlier of the following events: (1) H.N.'s marriage after the age of twenty-four years, (2) H.N's death, (3) a more-than-two-year interruption of H.N.'s continued education beyond age eighteen, or (4) H.N.'s thirtieth birthday, except in the event of illness or disability.
The PSA also contained a broad provision regarding educational costs. Article 5.2 provided:
Insofar as the Father shall be financially able, he hereby agrees and undertakes to pay and be responsible for all reasonable educational expenses which shall involve the Child's attendance at pre-school (Nursery), kindergarten, grammar and high school, college, junior college, trade school, art school, music school, ballet and dance school, technical school, professional school (law, medical/etc.), and/or graduate school. The educational expenses refer[r]ed to in this subparagraph shall include but shall not be limited to application and testing fees, review courses for entrance tests, room, board, tuition, university and activity fees, required books, materials and supplies, reasonable transportation and incidental expenses.
Moreover, the parties agreed to share information "regarding the selection of the educational institutions for the Child prior to her graduation from high school[.]"
The PSA also addressed life and health insurance with the parties, agreeing that defendant would maintain a $300,000 life insurance policy for H.N.'s benefit until her emancipation as defined under the PSA, health insurance coverage, and that defendant would pay all of H.N.'s unreimbursed health care expenses. An additional provision of the agreement provided that if either party "shall experience a material change in financial circumstances," that party retained the right to seek from the court "such other and different support provisions" as may be permissible under law. Finally, the parties agreed that in the event there was a violation of the terms of the agreement, "the party at fault will pay entire counsel fees, costs and expenses of the aggrieved party."
In January 1989, defendant married Zeinab Fath-El Bab,*fn1 an ob/gyn physician who maintained practices in Riverhead and Wading River. A few months later, they purchased a house in Riverhead for approximately $195,000, and were still living in that home at the time of the trial.
On January 6, 2004, nearly sixteen years after the parties entered into the PSA, plaintiff filed a motion seeking to enforce payment of child support arrears, to have all future support monies paid through the Probation Department, and for reasonable attorney's fees. Defendant filed opposition to the motion and cross-moved for modification of several of his obligations under the PSA. After plaintiff and defendant each filed additional papers in reply, the court entered an order on March 26, 2004, for a plenary hearing. Plaintiff moved for reconsideration, and sought, by way of an Order to Show Cause (OTSC), immediate payment of child support arrears, at least as to those sums defendant conceded were owed, as well as reasonable attorney's fees. The court granted reconsideration only as to child support arrears and entered judgment for $25,000 in favor of plaintiff without prejudice to the claims of either party.
The parties were afforded an opportunity to conduct discovery prior to the plenary hearing. The hearing spanned eleven non-consecutive days beginning May 23, 2005, and ending on March 24, 2006. At the outset of the hearing, the parties agreed that up until September 2001, defendant had paid all child support requested, H.N.'s high school tuition at a parochial school had been waived because of plaintiff's employment at the school, and that her college tuition costs at Fordham University (Fordham) were reduced fifty percent due to plaintiff's brother's employment at the university.
According to the exhibits introduced at trial, defendant's total indebtedness to plaintiff was in excess of $60,000, primarily representing child support arrears and H.N.'s college expenses, as well as "other expenses" she incurred on behalf of H.N. over the years, some of which dated back to 1997 and for which she had received no reimbursement from defendant.
Plaintiff explained that early in the divorce, when she tried to stop defendant from exercising overnight parenting time, she took that position only because she thought her own absence from the scene would be "very, very disheartening and disruptive" to H.N. She believed that several psychiatrists concurred in that view, but she "wholly encouraged" non-overnight parenting time. She indicated that H.N. had been used to spending most of her time with her and they were "inseparable," especially because there were some nights during defendant's residency when he did not come home and he did not spend much time with H.N. when he was home. Plaintiff admitted that she had asserted in a case information statement (CIS) dated August 31, 1985: "'It's essential that the Court acknowledges psychiatric instability of the father, and limit access to the child. There's been attempts of kidnaping [sic] by the litigant/defendant, who has been remarkably unstable throughout the marriage.'" Plaintiff also acknowledged that during the divorce proceedings, she believed that because defendant had dual citizenship, there was a risk he could flee to Italy with H.N. Plaintiff had no evidence that she tried to keep defendant informed about H.N.'s school progress, medical issues, or artwork during her schooling; she asserted that this was because defendant showed no interest in H.N.
Defendant testified that he and Fath-El Bab separately maintained their pre-marital assets. Additionally, with respect to his medical practice, he, Fath-El Bab and three other doctors operated on a "time share" basis out of the same Riverhead Medical Arts Building space that defendant had been renting since 1988. Defendant indicated the lease was in his name but that each doctor had use of the entire office during his or her allocated hours and that they all shared the rent and utility expenses. Defendant explained that although they shared the cost of a receptionist and billing person, the practice of each doctor was an independent practice with employees who worked exclusively for the particular doctor. According to defendant, he had been in a similar arrangement when he operated a practice out of the Wading River office, but could not keep up with the expenses.
According to defendant, he and his wife had never combined their medical practices together. He described their professional relationship as being competitors, and testified that they did not refer patients to each other, except that if a minor patient wanted to see a female doctor, defendant would recommend his wife. He explained that they paid professional expenses separately, had separate malpractice insurance policies, and maintained separate credit ...