August 12, 2008
CHARLES F. SPICER, PLAINTIFF-RESPONDENT,
AZZMEIAH R. VAZQUEZ F/K/A AZZMEIAH SPICER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-14-00M.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 28, 2008
Before Judges Graves and Yannotti.
In this post-judgment matrimonial matter, defendant Azzemiah R. Vazquez appeals from an order dated December 7, 2007, which denied her request to compel plaintiff Charles F. Spicer to contribute "toward the tuition and costs associated with educating the parties' [daughter] at a private boarding school through her high school years." We affirm.
The parties have one child, T.S., who was born on December 12, 1993. In their judgment of divorce (JOD), dated February 18, 1999, the parties incorporated an oral agreement, which included the following: "The plaintiff and defendant shall have joint custody of the minor child and shall confer on the major decision making process including but not limited to health, education, and general welfare. The defendant shall be the primary physical custodian of the child." The parties also agreed defendant was to pay the sum of $104 per week as child support, and in paragraph six of the JOD the parties agreed as follows: "PRIVATE PAROCHIAL GRADE SCHOOL EDUCATION - The minor child is a student at St. Patrick's School in Brooklyn, N.Y. The plaintiff shall contribute forty-five (45%) per cent and the defendant fifty-five (55%) toward tuition, registration, and books."
On March 10, 2007, T.S. was accepted by the Peddie School, a boarding school in Hightstown, New Jersey, to begin her high school education in September 2007. While the yearly tuition for grade school was $3735, defendant estimated the yearly cost of enrollment at the Peddie School, "including clothing, food, school supplies, books, dormitory necessities, fees, and tuition," would total "approximately $50,000.00 per annum."
On September 5, 2006, defendant filed a motion to enforce litigant's rights, and plaintiff filed a cross-motion seeking a declaration that he was not responsible for forty-five percent of T.S.'s private high school tuition.*fn1 Paragraph two of the order entered on October 6, 2006, provided as follows:
Plaintiff's request for dissolution of his contribution to parochial school is granted in part. Plaintiff shall continue to contribute towards [T.S.'s] attendance at the [grade school] for the current school year. As per the parties' Judgment of Divorce, [p]laintiff is not required to contribute towards [T.S.'s] attendance at a private high school.
In her motion for reconsideration, defendant alleged "[t]he [c]court . . . erred in making such an arbitrary determination regarding the child's educational future not based on facts." According to defendant, "[t]he parties negotiated [the JOD] with the intention that the child would continue in a similar [private] educational institution through high school." Moreover, defendant stated that enrolling T.S. in a public high school "would be traumatizing and not in her best interest," and defendant claimed the court "erred in arbitrarily granting [p]laintiff's request for dissolution of his contribution towards [T.S.'s] private parochial high school tuition."
Plaintiff, on the other hand, certified the JOD "does not imply nor state that [he] agreed to continue with payments for private high school." According to plaintiff, he "agreed to waive [his] rights to alimony from the [d]efendant based upon what was negotiated and agreed upon as reflected in [the JOD], such as paying for [p]rivate [g]rade [s]chool, and not [p]rivate [h]igh school." Furthermore, plaintiff claimed enrollment in a private high school "was never [his] preferred choice" and he "was never given the opportunity to make the decisions regarding the school [T.S.] attended."
The order denying defendant's motion for reconsideration, dated December 1, 2006, stated:*fn2
Defendant has failed to provide the [c]court with matters or controlling decisions which were overlooked by the [c]court or as to which the [c]court erred, as per R. 4:49-2, when the [c]court first considered the [m]otion on October 6, 2006. The parties' certifications are in direct conflict on the issue of whether it was their intention that their child, [T.S.], would attend private parochial school throughout high school. There is nothing in the parties' Final Judgment of Divorce that supports [d]efendant's contention that the parties intended [T.S.] to attend private parochial school throughout high school. Paragraph 6 of the Final Judgment of Divorce is titled--
"Private Parochial Grade School Education." In its previous decision the [c]court interpreted the parties' agreement according to its plain meaning. Plaintiff was required to meet his obligation to contribute to private parochial grade school costs. The decision not to extend [p]laintiff's obligation beyond what was contained in the parties' written agreement was not arbitrary. Though [d]efendant certifies that private parochial high school was contemplated at the time of divorce, the Final Judgment of Divorce contains no mention of private high school. There is a substantial difference between the cost of private parochial grade school and private parochial high school. Defendant has presented no evidence that plaintiff agreed to bear the cost of private high school.
Defendant did not appeal the order dated December 1, 2006, or the amended order dated January 2, 2007. However, on October 4, 2007, defendant filed a "Notice of Motion for Enforcement of Litigants Rights & Other Relief," which sought, among other things, to modify plaintiff's child support obligation "to reflect the substantial change in circumstances of the child's maturation and attendance at a highly-competitive, exclusive private boarding school, and the costs associated therewith." In an order entered on December 7, 2007, the court ruled: "Defendant's motion to require [p]laintiff to contribute to [T.S.'s] boarding school tuition and costs is denied. The parties' [JOD] is silent regarding the parental tuition contributions to private high school. The [c]court [o]rder of October 6, 2006 found that [p]laintiff would not be compelled to make contributions."
On appeal to this court, defendant argues:
WHEN A PROPERTY SETTLEMENT AGREEMENT OR FINAL JUDGMENT OF DIVORCE IS SILENT AS TO A PARENT'S CONTRIBUTION TOWARDS THE PRIVATE SECONDARY EDUCATION OF THEIR CHILDREN, THE CONFLUENCE OF STATUTORY LAW, CASE PRECEDENT AND THE PRINCIPLES GOVERNING THE COURTS OF EQUITY OF THE STATE OF NEW JERSEY ALLOW FOR THE ENTRY OF AN ORDER COMPELLING THAT CONTRIBUTION.
After reviewing defendant's contentions in light of the record and applicable law, we affirm substantially for the reasons stated by the trial court in the orders dated October 6, 2006, December 1, 2006, and December 7, 2007. We add only the following comments.
The trial court's initial order on October 6, 2006, clearly and unequivocally determined plaintiff would "not [be] required to contribute towards [T.S.'s] attendance at a private high school." Likewise, in denying defendant's motion for reconsideration the court reaffirmed its determination that "nothing in the parties' . . . [JOD] supports [d]efendant's contention that the parties intended [T.S.] to attend private parochial school throughout high school." Because defendant chose not to appeal either of the orders entered in 2006, and she has failed to establish any valid change of circumstances, defendant's appeal is nothing more than an untimely attempt to appeal from the orders entered October 6 and December 1, 2006.
Moreover, even if defendant had appealed the court's orders entered on October 6 and December 1, 2006, we would find no reason to disturb the trial court's rulings. As the court noted in its December 1 order, the "plain meaning" of the parties' JOD indicated plaintiff was only obligated to contribute towards T.S.'s private grade school education. "[C]courts [may not] remake a better contract for the parties than they themselves have seen fit to enter into, or to alter it for the benefit of one party and to the detriment of the other." Karl's Sales & Serv. v. Gimbel Bros., 249 N.J. Super. 487, 493 (App. Div.), certif. denied, 127 N.J. 548 (1991). The court's conclusion that defendant "presented no evidence that [p]laintiff agreed to bear the cost of private high school" is binding on appeal because it is "supported by adequate, substantial, credible evidence." See Cesare v. Cesare, 154 N.J. 394, 413 (1998); (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).