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Levine v. Levine

January 23, 2009

LARRY LEVINE, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
JODY LEVINE, DEFENDANT-RESPONDENT/ CROSS-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM-09-1075-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 17, 2008

Before Judges Payne and Newman.

Plaintiff Larry Levine appeals from an order of August 20, 2007, requiring that he pay for one-half of the high school tuition and books for his older daughter, now fifteen years old.

Defendant Jody Levine cross-appeals from the same order requiring her to pay ancillary high school expenses which include commutation expenses from Jersey City to New York City, cost of uniforms and a class trip to England. Defendant also cross-appeals from the court's denial of defendant's request to have one-half of the parking expenses while the older daughter was hospitalized over an extended period of time paid by plaintiff and modification of the Property Settlement Agreement (PSA) to allow out of country vacations for more than a one week time period. Although denied by the trial court, no mention of these rulings is made in the August 29, 2007, order. We affirm the trial court's orders for both the direct and cross-appeals.

The proceedings leading up to the plenary hearing held on August 20, 2007, may be summarized as follows. A dual judgment of divorce, incorporating the PSA, was entered on January 25, 2006. On January 22, 2007, defendant filed a motion for post-judgment relief seeking to compel plaintiff to contribute to the private high school tuition and costs for the oldest daughter, and for other relief unrelated to this appeal. Plaintiff filed a cross-motion seeking to modify his child support and alimony obligations based upon changed circumstances, to restrain defendant from removing the children from the country for more than one week, and for other relief. On March 6, 2007, the court entered two orders denying defendant's motion to compel plaintiff to contribute to the private high school tuition and costs, denying without prejudice plaintiff's application to modify child support and alimony payments, and granting plaintiff's application to enjoin defendant from removing the children from the court's jurisdiction for more than one week pursuant to the PSA.

Defendant filed a motion for reconsideration, which was heard on June 15, 2007. On that date, the trial court entered an order that amended the PSA to permit both parties, for one time, to travel with the children for seventeen consecutive days. In addition, the court ordered a plenary hearing to be held on August 20, 2007, to determine the parties' contribution toward the oldest daughter's private high school tuition. The court further ordered that "if Defendant files a motion pertaining to financial issues in a timely fashion, the court will merge the hearings, as they depend upon the same facts [and] evidence."

On August 16, 2007, plaintiff filed an application with the court for modification of his child support and alimony obligations to be consolidated with the scheduled hearing on August 20, 2007. The trial judge, who only received a copy of the application on August 20, 2007, declined to hear the motion.

The facts relevant to the issues considered at the plenary hearing are as follows.

According to the terms of the PSA, the parties agreed to share joint legal custody of the two children of the marriage, with defendant being the parent of primary residence. The PSA provided that "[t]he parties may each take two weeks vacation with the children a year. No party shall take more than one consecutive week vacation with the children at a time."

Regarding support and maintenance, the parties agreed that defendant's annual income would be imputed at $40,000, even though she was not employed, and plaintiff's annual income would be imputed at $150,000. Plaintiff agreed to pay defendant permanent alimony in the amount of $33,098 per year. The parties further agreed that plaintiff's child support obligation was an additional $33,098 per year for the two girls.

On the issue of the children's education, the PSA provided in relevant part that:

2. Wife shall pay the children's elementary school tuition, lessons, camps and other extracurricular activities currently estimated at approximately thirty-five thousand dollars ($35,000.00) per year one-half (1/2) from her own assets/income and one-half (1/2) from the equitable distribution of pre-marital assets of Husband. [. . .]

4. At the time the child(ren) attend high school, the contribution to same by both parents will be negotiated and if no agreement is reached, the parties may make an application to the court.

Plaintiff testified that at the time of the divorce, he had been unemployed for a long period of time. Previously, in the late 1990s, plaintiff earned approximately $150,000 to $200,000 per year as a consultant. In 2001, plaintiff had surgery for pheochromocytoma, and, as a result, he became addicted to painkillers and antidepressants, which precluded him from working for the better part of the year. In 2002, plaintiff began rebuilding his consulting business, but had trouble maintaining employment. Since that time, plaintiff's annual income after business deductions did not exceed $60,000. Plaintiff stated that for 2006, his earned income, after deductions for expenses, was $59,280. In addition, he borrowed $26,000 from his mother, and $17,000 from his girlfriend to pay his living expenses. At the time of the divorce in 2005, plaintiff also began withdrawing $44,000 a year from his retirement account to supplement his income.*fn1

On the day before the date of the divorce trial, plaintiff received an employment offer from an Internet start-up company for a consulting assignment. The offer, which was terminable at will by either party, guaranteed a monthly payment of $4,166 for three months, with the potential term of employment to extend up to seven-and-a-half months. In addition, the offer included an incentive based upon company performance that was projected to earn plaintiff approximately $171,000. Relying in part on this offer, plaintiff agreed to imputed income of $150,000 per year in the divorce settlement.

Both of the parties' daughters attended private elementary school, which was paid by defendant in part with the equitable distribution of plaintiff's pre-martial assets, which were set aside specifically for this purpose. According to defendant's testimony, the parties disagreed as to whether the oldest daughter should attend private high school. Defendant testified that plaintiff wanted the oldest daughter to attend public school, and he removed himself from the process of selecting a private high school. Defendant and the oldest daughter decided that she should attend the Nightingale School in New York City, where she received $28,000 in scholarships for the first year. The annual tuition was approximately $32,000, plus costs of books, daily commuting from Jersey City, school uniforms, and a mandatory trip to England, totaling approximately an additional $3,300.

On appeal, plaintiff raises the following issues for our consideration:

POINT I: THE COURT FAILED TO INCLUDE ALL RELEVANT INFORMATION IN DETERMINING THE ISSUE OF CONTRIBUTION TO HIGH SCHOOL TUITION BASED UPON A FINDING OF NO CHANGED CIRCUMSTANCES.

POINT II: THE COURT COMMITTED JUDICIAL MISTAKE OF FACT IN THE COURT'S ACCOUNTING OF THE ADD-BACKS OF THE APPELLANT'S INCOME AND MISTAKENLY IMPLIED AN INCORRECT PERCENTAGE AS THE THRESHOLD AMOUNT AND CHANGED CIRCUMSTANCES.

On the cross-appeal, defendant brings the following points to our attention.

POINT III: THE TRIAL JUDGE SHOULD HAVE ORDERED PLAINTIFF TO PAY ONE HALF OF TRAVEL AND OTHER HIGH SCHOOL EXPENSES, ...


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