On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-19525-91.
The opinion of the court was delivered by: Fuentes, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 11, 2007
Before Judges Coburn, Fuentes and Grall.
Plaintiff, Linda Lavin Gotlib, moved before the Family Part seeking post-judgment relief in the form of an order directing defendant Jonathan Gotlib to: (1) reimburse her for his one-half share of the children's un-reimbursed medical expenses, as arguably required under the final Judgment of Divorce (JOD); and (2) to pay his proportionate share of the children's college expenses, as required by the JOD.
Plaintiff also sought a judicial declaration that defendant did not have the right to assign the mortgage he received under the JOD, which is secured by the former marital residence; and that the assignee, Nicholas E. Purpura, is not a holder in due course of this instrument. Finally, plaintiff requested that the court award her counsel fees incurred in the prosecution of this motion.
The motion judge granted plaintiff's request concerning the children's un-reimbursed medical expenses and the children's college expenses. The court denied, however, the remainder of plaintiff's requests, finding that defendant, as mortgagee, retained the legal right to assign the mortgage; the court further held that the assignee of the mortgage was a holder in due course; and denied plaintiff's application for counsel fees and costs.
Defendant now appeals, arguing that the court erred in holding that plaintiff retained her right to require him to pay un-reimbursed medical expenses and by failing to apply the relevant legal factors in calculating his obligation to contribute to his children's college expenses.
Plaintiff cross-appeals, challenging the court's decisions: permitting defendant to assign the mortgage secured by the former marital residence, conferring upon the mortgage assignee the legal status of holder in due course and denying her application for counsel fees and costs.
After reviewing the record before us, and in light of prevailing legal standards, we affirm the trial court's ruling finding that plaintiff retained the right to seek reimbursement from defendant for his share of the children's medical expenses not covered by medical insurance. We hold that a parent's obligation to pay un-reimbursed medical expenses should be deemed by a court reviewing a motion to enforce litigant's rights as an essential benefit to the parties' children. In this light, the right to receive these payments belongs to the children, and is therefore not subject to waiver by a custodial parent. The non-custodial parent from whom reimbursement is sought retains the right to question the reasonableness of any individual medical expense.
We reverse the court's ruling concerning the children's college education, and remand for the trial court to make factual findings, after conducting a plenary hearing, guided by the factors outlined in Gac v. Gac, 186 N.J. 535 (2006) and Newburgh v. Arrigo, 88 N.J. 529 (1982). On the issue concerning the mortgage held by defendant on the former marital residence, we affirm the court's ruling upholding defendant's right of assignment, but reverse the ruling conferring holder in due course status on the assignee. Finally, we affirm the court's denial of plaintiff's application for counsel fees.
We examine these issues in the context of the factual record developed before the trial court.
I. The Parties were Married on March 6, 1982
They had three children: Aaron, born May 3, 1986; Rebecca, born September 17, 1987; and Zachary, born October 7, 1990. After fourteen years of marriage, the parties divorced. The trial dissolving the marriage lasted a total of forty-nine days. The court granted plaintiff legal and residential custody of the children; defendant was awarded parenting time. The JOD contemplated, however, that both parents would remain significantly involved in the children's lives. Toward that end, paragraph five of the JOD specifically provides as follows:
The plaintiff shall have the affirmative obligation [to] consult with defendant with regards to the children on issues before the event is to occur relating to medical, dental, therapeutic, educational, religious, recreational, school and camp needs, except in the event of an emergency. The defendant shall have the right to render his opinion.
In the event of a disagreement, the plaintiff will have the right to [make] the ultimate decision.
Both parties are attorneys. Although at the time of the divorce defendant was unemployed, the court imputed income to him in the amount of $125,000. Based on this imputed income, defendant was required to pay $352 per week in child support. After the entry of the JOD, defendant claims he developed "Chronic Fatigue Syndrome" and became totally disabled. He certified that he began receiving Social Security disability benefits in 1997; based on this change in his financial condition, his child support obligation was reduced to $109 per week.
With respect to medical expenses involving the children, the JOD provides as follows:
29. . . . The parties shall be equally responsible to provide for the children's medical, dental, orthodontial, opthalmological, or pharmaceutical expenses that are not covered by the health insurance. The plaintiff shall advance such sums. On the first day of each month, the plaintiff shall forward to the defendant, by regular mail and certified mail, return receipt requested, copies of all bills incurred for the children for which she seeks contribution, as well as the calculations of the monies due. The defendant may consult with the providers of services, as he cares to. He shall reimburse the plaintiff his 50% share thereof within thirty days of receipt by him of the bills.
On September 8, 1996, plaintiff sent defendant a letter enclosing copies of medical bills from March through September. She requested that defendant assume responsibility for half of the total or $1179.25. When he failed to do so, plaintiff moved to enforce litigant's rights demanding reimbursement. By order dated June 13, 1997, the court directed defendant to pay plaintiff $3454.76*fn1 for medical expenses; a second order dated July 14, 1997 directed defendant to pay plaintiff $388.55, also for medical expenses. Plaintiff claims defendant has failed to comply with both of these orders.
On February 2, 1999, plaintiff sent defendant a letter requesting $1050 for orthodontist expenses and $504 for dental work; these medical expenses related to the children. By letter dated March 22, 1999, plaintiff again wrote to defendant requesting payment for the expenses outlined in her February 2, 1999 letter. In this letter, plaintiff also requested payment of one-half of the children's medical insurance premiums amounting to $1748.10 for 1998 and $367.90 for the coverage period from January and February of 1999.
On April 19, 1999, plaintiff sent defendant a third letter requesting payment as previously discussed in her February and March letters. Plaintiff also sent an undated letter requesting $5866.25 for medical expenses; $241.25 for eye care bills, $750 for psychologist bills, and $4875 for other bills that were attached. Again, all of these expenses related to the children.
In total, plaintiff demanded payment from defendant in the amount of $23,397.73; this figure constitutes un-reimbursed medical expenses, $3843.31 of which the court had previously ordered defendant to pay. Broken down by category, plaintiff claims defendant owes her $5475 for the children's orthodontial bills, $4878.70 for the children's dental bills, $349 for the children's opthamological bills, $1776.72 for Rebecca's physical therapy and co-payments for medicine, and $7705.00 for Aaron's psychological bills.
In response, defendant argues that plaintiff failed to deduct insurance reimbursements from the medical bills; the bills were not delivered to him on a monthly basis; and plaintiff did not consult him or seek his input on the need for these medical services, as required by the JOD. By way of example, defendant claims plaintiff purchased the children braces, which he cannot afford, switched Aaron's ...