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Mislavsky v. Mislavsky

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 14, 2008

EDWARD MISLAVSKY, PLAINTIFF-APPELLANT,
v.
DONNA MISLAVSKY, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1297-00C.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 28, 2008

Before Judges Stern, A. A. Rodríguez and C. S. Fisher.

Plaintiff Edward Mislavsky (father), moved post-divorce judgment to declare two of his children emancipated. Donna Mislavsky (mother) opposed the motion. The judge denied the motion. Father appealed to us. In an unpublished opinion, we affirmed the order, but remanded on four "discrete issues." No. A-2640-02T3 (App. Div. August 20, 2004).

On remand, the judge issued a written opinion denying father relief on these four issues. Father attempted to appeal this order out of time. We denied this request. No. AM-261-06T5 (App. Div. Jan. 16, 2007). Father then moved "to modify [his] support obligation[s] and enforce litigant's rights." Mother cross-moved for enforcement of litigant's rights and other relief. The remand judge addressed the motions and issues, which were decided in mother's favor. Father moved for reconsideration, which was similarly denied after a hearing.

Father appealed. Mother moved to strike portions of father's appendix. We reserved decision on the motion pending consideration of the merits of the appeal. We now affirm on the issues decided after remand and deny the motion to strike portions of father's appendix.*fn1

The pertinent facts can be summarized as follows. The parties were divorced in 2002 after twenty-two years of marriage. The parties have three children. The oldest daughter is now emancipated. The other children are: Susan, age twenty-four; and Robert, now age twenty-one. Father is now fifty-two years old and mother is fifty-four years old. Both parties have since remarried.

The trial judge ordered child support of $264 per week for Robert, $30 per week combined for the oldest daughter and Susan (who were in college at the time), and $51.50 per week to cover the cost of health insurance for all three children.

Father has had a very strained and virtually non-existent relationship with the children for many years. The hostilities apparently began when father secretly taped a phone conversation between mother and her paramour while the parties were still married. Father then played the tape for Robert and Susan. According to father, he met with Robert (then a senior in high school) and Susan (who was then in college) in May 2005 to try to re-establish a relationship. Both children told him that they did not wish to have any contact with him.

Susan's college career took many turns. She started at West Chester University, transferred to Brookdale Community College, then transferred to Towson University, and then returned to Brookdale before going to Georgian Court College. According to mother, Susan was expected to graduate in May 2007, one year after the date of this motion. At the time of the motion, Susan was living with mother and attending college full- time. She worked "a few hours a week" baby-sitting and doing bookkeeping while in school.

Susan did not consult with her father about any of her academic plans or goals. According to the divorce judgment, mother had the responsibility to "provid[e] [father] with written notice of relevant developments regarding the children's college costs and progress."

Robert has attended the University of Maryland since 2005. He did not consult with his father about his academic plans. Pursuant to the divorce judgment, mother was required to "keep [father] advised as to Robert's college application and selection process[,]" which she did. According to mother, Robert has excelled in college. He lives on campus during the school year, but comes home for vacations and holidays. He was not employed while attending school.

On appeal, father argues:

THE TRIAL COURT ABUSED ITS DISCRETION AND/OR OTHERWISE ERRED IN ITS RULINGS PERTAINING TO THE EMANCIPATION OF THE PARTIES' CHILDREN.

We disagree.

Pursuant to N.J.S.A. 9:2-4, and Grotsky v. Grotsky, 58 N.J. 354, 356 (1971), parents are equally charged with their children's care, nurture, education and welfare. The duty to support continues until the child is emancipated. Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). Age alone is not dispositive of emancipation. Bishop v. Bishop, 287 N.J. Super. 593, 597 (Ch. Div. 1995).

According to Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997):

Emancipation of a child is reached when the fundamental dependent relationship between parent and child is concluded, the parent relinquishes the right to custody and is relieved of the burden of support, and the child is no longer entitled to support. Emancipation may occur by reason of the child's marriage, by court order, or by reaching an appropriate age, and although there is a presumption of emancipation at age eighteen, that presumption is rebuttable. In the end the issue is always fact-sensitive and the essential inquiry is whether the child has moved "beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own."

Bishop, supra, 287 N.J. Super. at 598.

The determination of whether the child has moved beyond the parental sphere of influence "involves a critical evaluation of the prevailing circumstances[,] including the child's need, interests, and independent resources, the family's reasonable expectations, and the parties' financial ability, among other things." Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006). The "educational exception" to emancipation has become "well-established." Monmouth County Div. of Social Servs. v. C.R., 316 N.J. Super. 600, 616 (Ch. Div. 1998).

"It is basic that a case should not be decided merely on the basis of conflicting affidavits or an inadequate record." Wilke v. Culp, 196 N.J. Super. 487, 501 (App. Div. 1984) (internal citations omitted), certif. denied, 99 N.J. 243 (1985). However, a party must clearly demonstrate the existence of a genuine issue as to a material fact before a plenary hearing is necessary. Lepis v. Lepis, 83 N.J. 139, 159 (1980).

Here, father contends that the judge failed to conduct a plenary hearing regarding emancipation to consider: 1) the unilateral decision by the children to sever their relationship with their father; 2) the children's work history and independent resources; and 3) the actual needs of the children. As to the first alleged issue-the children's lack of relationship with father-there was no need for a plenary hearing. Father's motion asked the court to emancipate Susan and Robert based on their unilateral termination of their relationship with him and their deliberate move beyond his "sphere of influence." However, a relationship between a non-custodial parent and a child is not required as a basis for ordering support. Gac v. Gac, 186 N.J. 535, 546 (2006). The two younger children still live with their mother. Therefore, she is entitled to receive support.

Father next contends a plenary hearing was necessary to delve into the children's work history and "independent resources." Mother certified that the children worked minimally while they attended college, which was not contradicted. Nor did father raise any circumstantial evidence that either child was gainfully employed. In short, father presented no material fact in dispute that required a plenary hearing.

Finally, father suggests that a plenary hearing was necessary to determine the "actual needs" of the children. Such a hearing would presuppose that the children's needs have decreased since the entry of the judgment. However, with both children in college full-time, there is no showing that their needs have decreased.

Next, father contends:

THE TRIAL COURT ABUSED ITS DISCRETION AND/OR OTHERWISE ERRED IN ITS RULINGS PERTAINING TO COLLEGE CONTRIBUTION.

We disagree.

In evaluating a claim for contribution toward the cost of a child's higher education, courts look to Newburgh v. Arrigo, supra, 88 N.J. at 542, which sets forth twelve relevant factors that a court must consider in its analysis. Among those particularly relevant to this case, are the ability of the parent to pay, and the child's relationship to the parent, "including mutual affection and shared goals as well as responsiveness to parental advice and guidance." Ibid.

Father argues that, using the Newburgh factors, his situation is analogous to that presented in Gac, supra, 186 N.J. at 547, and Moss v. Nedas, 289 N.J. Super. 352 (App. Div. 1996), in which the fathers did not have to contribute to the college costs of their children because they had not been consulted prior to the selection of the colleges.

We reject this argument. Unlike Gac and Moss, father's obligation to pay for college was explored at the divorce trial, and the opinion regarding the judgment of divorce explicitly addresses the same concerns he now raises. After analyzing the Newburgh factors, the judge found that prior to the parties' marital difficulties, it was their intention and expectation that the children would attend college, given that they had already established custodial college accounts for each child. Thus, the court reasoned that "father should not be entitled to abandon his obligation with regard to higher education simply because the children have become estranged from him as a result of their parents' bitter and protracted divorce."

As for father's claim that he was never consulted during Susan's college selection process, the judge found Susan's decisions reasonable, despite acknowledging that mother should have kept father abreast of all decisions. The judge made similar findings with respect to Robert's college ambitions. After analyzing the parties' financial situation, the judge determined that father would be responsible for sixty percent of the children's college costs.

On remand, the judge granted father's motion for reconsideration on this issue, but ultimately found "that based on the Newburgh factors, Gac, and the evidence before [him], father must continue to contribute to the children's support and college expenses, as previously ordered." He also noted that the trial judge's previous order only required mother to advise father of the children's college plans.

Therefore, father has failed to present any disputed issues of material fact that would necessitate a plenary hearing. The record is devoid of any evidence demonstrating a change in circumstances, since the time of the divorce, which would require a reexamination of the college contribution order. The issue of college expenses was fully explored and addressed at the divorce trial, when the relationship status was the same as it is now. Although the court did not require father's consent to the children's plans, he was ordered to be kept advised of their decisions. Unlike the supporting parent in Gac, father knew that he would have college expenses for his children.

Therefore, he had adequate notice to arrange his own affairs in preparation for this expense.

Next, father argues:

THE TRIAL COURT ABUSED ITS DISCRETION AND/OR OTHERWISE ERRED IN ITS RULINGS PERTAINING TO LIFE INSURANCE COVERAGE.

We disagree.

Pursuant to the judgment of divorce, father was required to "continue to maintain or replace, if necessary, all life insurance policies in effect as of January 1, 2000" for the benefit of securing mother's alimony and the children's support. The coverage in effect as of January 1, 2000, was $1.1 million. After father's appeal, and our subsequent remand, his obligation was reduced to $440,243. In June 2006, the judge held father in contempt for failing to supply proof of life insurance. He gave father an additional twenty days to submit proof or else mother could apply for a bench warrant.

In father's motion for reconsideration, he sought a reduction in his life insurance obligation because the purpose of the life insurance was to secure his alimony, child support, and college obligations, which he argued were greatly reduced with mother's remarriage, the emancipation of the oldest daughter, and Susan's graduation from college. He further certified that as a former cancer patient, he could not obtain any further life insurance "at any reasonably affordable level." He argued that the monthly premium for a $500,000 policy would be $465. In August 2006, the judge granted father's request, and ordered that he provide life insurance of between $200,000 and $250,000, with two-thirds being allocated to Robert and one-third to Susan. Thereafter, in September 2006, mother agreed to accept the amount of life insurance father had through his employer, 150% of his salary. At that time, this amount was $170,250.

Father argues that the remand judge's ruling regarding life insurance "is inequitable[,] . . . not grounded in reason[,]" and its "sole goal" was to punish him. He seeks a remand to determine the amount of life insurance that should be maintained "that is logically related to each party's support obligation[s]." Specifically, he wants to be able to provide life insurance for his new wife and seeks to have mother removed as the trustee for his children, allowing him to name them directly as beneficiaries.

Mother argues that she accepted the reduced amount of insurance, yet father insists on flouting the court orders to name her as trustee of the money. Further, she argues that Robert has two years of college left, and father's obligation for that has not yet been determined because he has failed to submit his 2004 and 2005 tax returns to the court. Further, she says father is obligated to pay child support for Robert.

A court may enter an order for minor children to survive their father's death and may direct the father to maintain his insurance, naming the minor children as beneficiaries, for the purpose of securing fulfillment of the support order during their minority. Grotsky, supra, 58 N.J. at 361. Pursuant to N.J.S.A. 2A:34-25, alimony terminates upon the death of the payer spouse. However, the act reserves the right of a court to "order[] either spouse to maintain life insurance for the protection of the former spouse, partner, or the children of the marriage or civil union in the event of the payer spouses' . . . death." Ibid.

Thus, there is no question that the court had the authority to order that father maintain life insurance to secure his support obligations to the children. Robert's two-thirds share of the $170,000 policy is needed to cover his child support and the remaining two years of his college expenses. As to Susan, at the time of father's motion, she was not emancipated. Once this occurs, father can move to have her one-third share terminated, allowing him to distribute the remaining proceeds on his life insurance policy as he so chooses. For now, father must maintain the life insurance policy as previously agreed.

Next, father argues:

THE TRIAL COURT ABUSED ITS DISCRETION AND/OR OTHERWISE ERRED IN ITS RULINGS PERTAINING TO THE AWARD OF COUNSEL AND OTHER FEES.

We disagree.

A court may, in its discretion, make an allowance of counsel fees to be paid by any party in a matrimonial action.

R. 5:3-5(c).

In determining the amount of the fee award, the court should consider, in addition to the information required to be submitted pursuant to R. 4:42-9, the following factors: (1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award. [Ibid.]

Here, the trial judge awarded $2500 in counsel fees to mother.*fn2 On father's motion for reconsideration, the judge upheld his previous decision, given "[f]ather's [repeated] frivolous application[s] [to the court], which [involved issues that] had already been litigated multiple times." A separate counsel fee award of $2770 was imposed as a result of father's unsuccessful application for reconsideration.

Father maintains that both awards for counsel fees demonstrates the judges' animosity towards him. He argues that the judges are "blind" to mother's legion of faults, but punish him for his. He also claims that he does not have the financial ability to pay counsel fees.

Preliminarily, the trial judge's award of counsel fees is not on review, given that we have previously upheld this order. As to the additional counsel fee awards, father has failed to offer any tangible evidence regarding what his current financial status is, including reference to his case information statement, his pay stubs, his income tax returns, or any other document that would demonstrate his financial circumstances. He also fails to cite to any documentation showing that mother has a superior financial position as compared to him.

It is well settled that a brief must have supporting legal argument with appropriate references to the record. R. 2:6-9; State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977). Where an issue is not briefed beyond the conclusory statement of the brief writer, it will not be considered. Miller v. Reis, 189 N.J. Super. 437, 441 (App. Div. 1983). Father does not provide any information to support his claims.

Furthermore, there is ample evidence in the record of father's bad faith. Issues concerning emancipation and college contribution were already addressed by the trial court and previously appealed from; yet, father persists in raising these issues when nothing has changed. Additionally, father has repeatedly failed to comply with the life insurance requirement for years, forcing mother to file an enforcement action. Contrary to his contentions, mother has not displayed bad faith, and has been forced to spend time and resources chasing father to get him to do what he has been repeatedly ordered to do.

Lastly, father argues that he was ordered to pay mother $14,354.25 and $3,221.53, respectively. This allegation is not documented. Father does not specify to what orders he refers, making it impossible to review his claim. See Miller, supra, 189 N.J. Super. at 441.

Next, father argues:

THE TRIAL COURT ABUSED ITS DISCRETION AND/OR OTHERWISE ERRED IN ITS RULINGS PERTAINING TO SANCTIONS AGAINST [FATHER] FOR HIS INABILITY TO OBTAIN LIFE INSURANCE.

We disagree.

Pursuant to the judgment of divorce, father was ordered to obtain life insurance within twenty days of the date of the judgment or he would be sanctioned fifty dollars for every day he was in default. In a January 22, 2004 order, the remand judge imposed a sanction of $18,250, based upon father's violation of that order. Father never appealed this order. Instead, father sought to have the amount of the judgment reduced in his motion for reconsideration. This was improper procedurally, as motions for reconsideration are limited to clear error or matters the court overlooked on the original motion. R. 1:7-4. Nevertheless, the judge ruled on his request. The judge denied father the relief sought and reiterated that father was ordered to provide proof of life insurance, which he had failed to do. As the foregoing rule makes clear, father cannot now challenge the imposition of sanctions on appeal. We reject father's argument. R. 2:11-3(e)(1)(E).

Father argues:

THE TRIAL COURT ABUSED ITS DISCRETION AND/OR OTHERWISE ERRED IN ITS RULINGS PERTAINING TO UNFREEZING BANK ACCOUNT CONTAINING FUNDS FROM [FATHER'S] BROTHER.

In a supplemental order to the judgment of divorce, the trial judge ordered that assets in a joint Sovereign bank account, which father shares with his brother, be frozen until further order of the court. Thereafter, father moved before the trial judge to release the bank account, arguing that "all obligations under the Dual Judgment of Divorce have been met and alimony and child support are no longer required." This motion was denied, except for any corporate accounts held by father.

Now, on appeal, father maintains that mother already received credits for this account in the final judgment of divorce, and that she previously agreed to release the account. Father also argues that the remand judge disregarded his motion without considering the merits, which he cannot prove because the transcript was lost.

Father did not address these issues on his motion for reconsideration. Moreover, father has failed to include the original order entered by the trial judge freezing the account. He also fails to offer any explanation in his brief discussing why the account was frozen in the first place, or what circumstances have changed since then. Without more than conclusory statements, we cannot address this issue. Miller, supra, 189 N.J. Super. at 441.

Father argues:

THE TRIAL COURT ABUSED ITS DISCRETION AND/OR OTHERWISE ERRED IN ITS RULINGS PERTAINING TO [FATHER'S] OVERPAYMENTS OF CHILD SUPPORT.

We disagree.

Father sought a credit for child support paid after Susan left her mother's home and after Robert left to attend college. Specifically, he sought $13,121, representing nineteen payments of $691 paid for Robert and Susan. The judge denied this motion, and father moved for reconsideration. This motion was also denied with the judge finding that child support would be modified effective May 1, 2006, but that no further credits were due. Additionally, on his motion for reconsideration, father also sought a $51.50 credit for each week he paid mother since the date of their divorce towards health insurance for the children. He maintained that mother did not actually incur these costs; therefore, he should be reimbursed. The judge, however, refused to consider father's request for a health insurance credit since he failed to seek this relief in his original motion.

As to child support payments, they are not subject to retroactive modification, and can only be altered upon a showing of changed circumstances, to the date of the pending motion.

N.J.S.A. 2A:17-56.23a. Because father had not previously sought to modify child support, he was not entitled to any credits. If father wishes to move before the court for a reduction in the future, we note that the effective date should be as of April 6, 2006.

Finally, father raises the issue of recovering sums paid for the oldest daughter after she was emancipated. Although retroactive modification of a support order is permitted based upon a court's declaration that a child had been emancipated on a date certain, Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995), we decline to consider this issue due to father's failure to properly present this issue before the remand judge. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Lastly, father argues:

THIS MATTER SHOULD BE REMANDED TO DIFFERENT TRIAL JUDGES AND REMAIN UNDER THE JURISDICTION OF THE APPELLATE DIVISION BECAUSE THE JUDGES HEARING THIS MATTER HAVE DEMONSTRATED AN INABILITY TO BE OBJECTIVE.

We decline to address this issue as it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.


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