On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1596-06D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein, Fuentes and Gilroy.
Plaintiff Ann Jamison appeals and defendant Richard Orris cross-appeals from various parts of the orders of August 2, 2006; October 13, 2006; November 29, 2006; and December 19, 2006 that addressed issues of emancipation, child support, contribution toward their son's college costs and counsel fees. We affirm both the appeal and cross-appeal in part; reverse in part; and remand to the trial court for further proceedings consistent with this opinion.
Plaintiff and defendant were married on April 20, 1985. They had two children: John,*fn1 born in February 1988; and a daughter, born in March 1990. Plaintiff, who was diagnosed with rheumatoid arthritis as an adolescent, underwent several procedures before and during the marriage to correct extensive joint deterioration. In 1990, she began receiving Social Security disability (SSD) benefits.
On July 30, 1991, the parties separated. That year, plaintiff and the children moved to New Jersey, while defendant remained a resident of Pennsylvania. On February 19, 1992, defendant filed for divorce in Pennsylvania. The parties subsequently entered into an undated custody stipulation, and an amended stipulation dated December 2, 1992 (hereinafter, the custody agreement). On December 7, 1992, the Pennsylvania court entered an order directing the parties to comply with the custody agreement which, among other matters, gave both parties joint legal custody of the children, with plaintiff designated as the parent of primary residence. The parties also agreed that major decisions concerning their [children's] health, welfare, education, religious training and upbringing shall be made by the parents jointly, after discussion and consultation with each other, with a view towards obtaining and following a harmonious policy in the [c]hildren's best interests. Each party agrees to keep the other party informed of the progress of the [c]hildren's education and social adjustments.
On February 5, 1993, the parties entered into a consent child support order. In March 1993, Dr. Gabor Barabas, a pediatric neurologist, evaluated John who was having difficulties in nursery school. The doctor diagnosed him as having "Attention Deficit Disorder with Hyperactivity." Dr. Barabas also believed that he might have Asperger's Syndrome (Asperger's), which the doctor described as a form of pervasive developmental disorder. In July 1993, Dr. Isabelle Rapin, a professor of neurology and pediatrics at Albert Einstein College of Medicine of Yeshiva University in New York, confirmed the Asperger's diagnosis.
On May 3, 1995, plaintiff and defendant executed a post-nuptial agreement (PNA). That same day, a Pennsylvania court entered a final divorce decree incorporating the PNA by reference. As explained in the PNA, plaintiff conveyed to defendant title to the marital residence in return for a lump sum payment of $50,000. Plaintiff also received limited duration alimony in the amount of $192.30 per week, or $10,000 per year, for a term of six years. The parties agreed to continue the child support order and recognized that it was "modifiable pursuant to the case law and statutes of the Commonwealth of Pennsylvania."
The PNA expressly indicated the parties' desire for their children to attend college and obtain an undergraduate education. The parties agreed that, "in a manner commensurate with their financial circumstances at the time," each of them would be responsible "for those necessary payments of tuition, dormitory and/or room and board, books, supplies, fees, assessments, and other regular and normal college charges and expenses." They further agreed to urge their children to seek all possible financial aid available and "utilize in the calculation of each party's financial responsibility all scholarships, loans, grants, and the assets and earnings of the child attending college." Additionally, the PNA limited the college education to four years, to be completed within five years after each child graduated from high school. The PNA did not address emancipation of the children. However, the parties did agree that the PNA would be construed in accordance with Pennsylvania law.
After the parties' divorce, the Pennsylvania court periodically reviewed defendant's support obligations and made adjustments when necessary. For example, at the last support modification conference on March 22, 2001, the Pennsylvania court ordered defendant to pay $332 per week in child support and $192.30 in alimony,*fn2 and directed that child support increase to $378 per week effective May 5, 2001, to reflect the agreed upon termination of defendant's obligation to pay alimony.
In 2001, defendant moved to New Jersey where he resided with his new wife. At that time, he worked in the New York office of Morgan Stanley.*fn3 After defendant moved to New Jersey, the parties' daughter stayed with him during the summers when she attended camp. According to defendant, every summer except one, he paid the daughter's camp costs (ranging from $1,700 to $2,600 per summer) without a reduction in his child support payments.
Meanwhile, John continued to have problems in school with socialization. In May 1998, when he was in the fourth grade, the child study team of his public school district asked the Children's Center of Monmouth County (Children's Center) to make recommendations to enhance his social skills. Recognizing that children with Asperger's presented special challenges, the Children's Center made several suggestions. At some point, however, John was placed in Woodcliff Academy, an out-of-district private school that serves children with disabilities.
In November 2004, when John was in the eleventh grade, the Ocean Township child study team referred him to Dorothy M. Pietrucha, M.D., at Meridian Health, for a neurologic examination. In her report, Pietrucha advised that John was doing well at Woodcliff Academy, he had made a lot of progress over the years, and he had more socialization and interaction with his peers. She noted that John had previously taken Paxil and Risperdal, but did not respond well to those medications and was not on any medicine when she saw him. Pietrucha concluded that, because of his Asperger's, John remained eligible for special education and related services.
In the 2005 annual review of his individualized education program (IEP), John was deemed eligible for continued special education and related services. The IEP report described his academic progress as follows:
[John] continues to willingly participate in group counseling and insight continues to improve. He is in the higher functioning group currently. Change continues to be an issue. [John] continues to enjoy a social "niche" and interactions are appropriate. His work effort is good. He works at a slower pace and takes longer to complete tasks. [John] continues to work on organization and independent work skills.
The report observed that, although he socialized with his peers, he continued to have difficulty with "flexibility, transitions, and changes in routine." Nonetheless, it concluded that, if he was not graduating, he was "successful enough" that "Woodcliff would recommend returning [him] to district or another school." At the time, he was living with his mother and spending every other weekend with his father.
During his senior year, John applied to several colleges. According to defendant, he and plaintiff had agreed that their son would attend a community college. Defendant believed that community college was a better alternative because the classes were smaller and it would be "socially easier" than a "big school."
John, however, applied only to four-year colleges. He received acceptances to six schools, but decided to attend Fairleigh Dickinson University in Madison, where he was admitted into the Freshman Intensive Studies (FIS) program. Plaintiff explained that John did not apply to any community colleges because he could "do better."
Plaintiff and John chose Fairleigh Dickinson because the FIS program offered him "a lighter course load, a special dormitory with student monitoring and additional tutoring as needed." Fairleigh Dickinson described the FIS program as unique because of its four distinguishing features: tailored courses; a managed academic credit load; a range of academic support services; and the ability to graduate in four years. John's teachers, the members of his IEP team, and his school guidance counselor agreed that he could attend college provided he was able to go home for visits.
Defendant did not participate in John's college choice. Plaintiff claimed that defendant refused to discuss their son's attendance at a four-year college and, instead, wanted John to live with him, attend community college, and work in his wife's real estate business. Defendant countered that John never consulted with him before applying to four-year colleges and plaintiff never informed him in advance about his college applications. He first learned of John's acceptance to Fairleigh Dickinson on March 18, 2006, and did not receive the estimated costs of the four-year college until June 1, 2006, even though their son was admitted into the FIS program as early as February 2006.
John received a financial aid package from Fairleigh Dickinson, which amounted to an estimated $26,565.*fn4 The projected annual cost of tuition, room, board, and fees for the 2006/2007 school year was $35,973. After deducting the deposits made by plaintiff for tuition ($200) and housing ($350), there was an unpaid balance of $8,858.
According to plaintiff, her income level was so low that federal guidelines did not require her to pay any amount toward John's college education. As of July 2006, she had a total monthly income of $2,859 from all sources including SSD benefits and child support. However, her monthly expenses totaled $5,916. To help pay her expenses, plaintiff's parents and her sister and brother-in-law provided some financial assistance. For example, plaintiff's parents paid her counsel fees and the first two monthly payments to Fairleigh Dickinson.
Defendant expressed concerns about John's choice of college. In a certification dated July 13, 2006, he explained that, because an IEP safety net did not exist at Fairleigh Dickinson, if his son failed out of school, he could not "go for a program for the learning disabled." He further explained:
I do feel that if [John] goes to Fairleigh Dickinson, he could flunk out. Going away to college is difficult enough for children without learning disabilities. Once again, [John] is Autistic. He is not stupid by any means. He is probably in the top 5% or so of Autistic people with Asperger's who are fully capable of making it on their own, but I am very concerned about him, especially socially.
Defendant also questioned the plan for John to take three semesters to complete the first year's coursework and then "miraculously" become "a regular full[-]time student."
Instead, defendant suggested that John attend one of the community partner schools for Fairleigh Dickinson and live with him; and, in return, he offered to pay $7,000 toward John's college expenses, plus his car insurance up to a certain amount; gas money; health insurance; and a pro-rata share of his unreimbursed medical expenses, excluding the $250 per year deductible. Alternatively, defendant asked the court to hold a hearing to determine the best course of action.
Meanwhile, in December 2005, the Social Security Administration (SSA) denied plaintiff's application for supplemental security income (SSI) for John based on his living arrangements and his monthly income from Social Security benefits and child support payments. On February 3, 2006, the SSA advised plaintiff that John was no longer eligible for Social Security benefits because in that month, (1) he was eighteen-years old, (2) not disabled, and (3) not a full-time elementary or secondary level school student. On the same date, the SSA increased the parties' daughter's monthly benefits to $436.00.
Also in February 2006, plaintiff received a notice from the Pennsylvania court requesting information about her disability status and John's then-present condition. On March 13, 2006, the Pennsylvania court issued an order directing the parties to appear at a "modification conference." On March 20, 2006, plaintiff requested an adjournment, stating that she was in the process of obtaining legal representation "to domesticate th[e] matter in New Jersey where all parties reside." She also claimed that arthritis prevented her from driving long distances. When plaintiff asked defendant to consent to registering the foreign judgment of divorce in New Jersey, he refused. On March 24, 2006, the Pennsylvania court cancelled the conference, noting defendant failed to file a petition to modify his child support obligations.
On April 7, 2006, defendant filed a petition to modify the existing child support order in anticipation of John's emancipation upon graduation from high school. On April 12, 2006, the Pennsylvania court again ordered the parties to appear at a modification conference on May 3, 2006.
On April 25, 2006, plaintiff filed her complaint in the Family Part, seeking to register the foreign judgment of divorce in New Jersey, and requesting the court to direct defendant to pay child support for both children, college educational expenses for John, and counsel fees. Plaintiff advised the Pennsylvania court that she was filing the complaint and requested a stay of all proceedings in Pennsylvania pending the outcome of the New Jersey litigation.
The complaint specifically alleged that: (1) the Pennsylvania divorce decree, PNA and custody agreement should be registered in New Jersey and be given full faith and credit; (2) the Pennsylvania action should be dismissed, or alternatively stayed, pending a determination on the issue of registering the foreign judgment of divorce; (3) John was unemancipated under New Jersey law because he remained dependent on both parents for financial support; (4) defendant should pay child support in accordance with the laws of New Jersey; (5) defendant should be directed to pay his fair share of John's college educational expenses as determined by the PNA; (6) defendant should maintain medical insurance coverage for the children; and (7) defendant should pay plaintiff's counsel fees.
On May 3, 2006, the Pennsylvania court again issued an order directing the parties to appear at a support modification conference on June 12, 2006. On May 15, 2006, defendant filed a motion seeking to dismiss the Family Part complaint. He argued that the complaint lacked subject matter jurisdiction because of the pendency of the action in Pennsylvania or, alternatively, that the court should stay the action pending a decision from the Pennsylvania court. On May 25, 2006, plaintiff requested an adjournment of the June 2006 Pennsylvania modification conference not only to avoid potentially conflicting litigation in two states, but also to defray excessive legal expenses.
On June 1, 2006, the SSA denied plaintiff's claim on behalf of John for SSD benefits based on his Asperger's and Hypotonia.*fn5
While acknowledging that his condition affected his ability to perform some activities, the SSA believed that he "should be able to take care of [his] personal needs, do simple jobs when shown and understand and follow simple instructions." It also found that his Hypotonia did not limit his "ability to move about and use [his] limbs." According to its standards, the SSA concluded that he "should be able to perform jobs which do not require more than a short training period" and, therefore, he was not disabled.
On June 7, 2006, defendant made a settlement offer. According to plaintiff, the offer did not provide the necessary financial information for her to assess its reasonableness. That same day, plaintiff filed an order to show cause (OTSC) in the Family Part to prevent the Pennsylvania action from proceeding pending a decision by the New Jersey court on plaintiff's complaint and defendant's cross-motion to dismiss plaintiff's action. On June 9, 2006, a Family Part judge granted the order with temporary restraints, enjoining defendant from proceeding with his Pennsylvania action to emancipate John until after July 7, 2006. Also on June 9, the Pennsylvania court adjourned the June hearing. On June 27, 2006, defendant filed an answer to the complaint to register the Pennsylvania decree, and a counterclaim. On June 30, 2006, John graduated from Woodcliff Academy.
On July 13, 2006, plaintiff moved to enforce college contribution, to establish child support, and for other relief pursuant to Rule 1:10-3. Specifically, plaintiff requested the court to: direct defendant to pay the full cost of John's college education which was not covered by loans, scholarships, grants, and other financial aid; recalculate child support for their children in accordance with the New Jersey Child Support Guidelines*fn6 (Guidelines); register the Pennsylvania divorce decree, PNA, and custody order, and exercise exclusive jurisdiction over this matter; enjoin defendant from certain conduct during extended parenting time with their daughter; and direct defendant to pay her counsel fees.
In support of her motion, plaintiff attached her case information statement (CIS), filed on June 13, 2006. The CIS indicated that she had a gross earned income for 2005 of zero, and a total unearned income of $4,368. In 2005, she received a total of $10,057.40 in SSD benefits. At the time of filing, plaintiff received child support from defendant through wage garnishment in the amount of $819 per month each for their son and daughter. She received SSD benefits for John in the amount of $436 for the period from January 1 to February 28, 2006; and for their daughter, in the amount of $1,755 for the period from January 1 though May 31, 2006, which included $436 per month since March 1, 2006. She did not receive any alimony. Plaintiff's CIS reflected total assets of $319,191, with her residence comprising the largest portion at $291,700. She listed her net worth as $205,601.
On July 13, 2006, defendant filed a cross-motion requesting the Family Part to apply Pennsylvania substantive law to the interpretation and enforcement of the PNA, to require John to attend community college, to allow Pennsylvania to recalculate child support for their daughter retroactive to June 28, 2006, and to compel plaintiff to contribute toward his counsel fees. According to defendant, both parties had voluntarily submitted themselves to Pennsylvania law after they relocated to New Jersey because the Pennsylvania court was "abundantly familiar" with their case, and the PNA referred to Pennsylvania law. In defendant's July 2006 certification, he stated that if the Pennsylvania court deemed John emancipated and recalculated child support for their daughter only, he would agree to transfer all further issues to New Jersey jurisdiction.
In his CIS dated June 28, 2006, defendant indicated that he had a gross earned income for 2005 of $119,523, and total gross assets of $1,186,864. Defendant's largest asset was his residence, which he valued at $600,000. He placed his net worth at $868,837.
On July 28, 2006, the parties appeared before a second Family Part judge for argument on the motions. The judge granted the registration of the Pennsylvania divorce decree, the PNA, and the custody order in New Jersey, determining that New Jersey would exercise exclusive jurisdiction. He also directed the parties to pay for John's college expenses commensurate with their financial circumstances, which he allocated at 88% for defendant and 12% for plaintiff. In so deciding, the judge noted that the parties acknowledged in the PNA their desire for the children to attend college and obtain an undergraduate education, commensurate with their financial circumstances. He further found that it was in their son's best interest to attend Fairleigh Dickinson. Noting that the laws in New Jersey and Pennsylvania differed with respect to emancipation, the judge reserved decision on that issue pending further review. He then directed defendant to update his CIS and other financial information so that he could evaluate defendant's child support obligation as it related to the emancipation issue.
On August 2, 2006, the judge issued an order memorializing his decision on the cross-motions. This order also applied Pennsylvania law and determined John emancipated as of February 4, 2006, the date of his eighteenth birthday. In addition, the order enjoined defendant from making any further applications in Pennsylvania and ordered him to pay an additional $200 per month in child support from September 1, 2006, to August 31, 2007, based on the expectation that John would frequently return home the first year of college due to his special needs. Lastly, the order denied defendant's application to find plaintiff in contempt for failing to consult with him in advance about John's college choice, and to require John to attend community college.
With regard to the daughter, the order directed the recalculation of defendant's child support obligation, effective July 13, 2006, in accordance with the Guidelines, because the parties resided in this State and were subject to the New Jersey cost of living. It directed both parties to exchange financial information and update their CISs, so that counsel could submit an amended consent order to the court for enforcement. Additionally, the order denied plaintiff's applications which sought to direct defendant to disclose all real estate ventures and to require defendant to account for all monies earned by their daughter throughout her summer employment. Lastly, the order directed defendant to pay plaintiff's counsel fees in the amount of $5,000.
On August 21, 2006, defendant filed a motion seeking to amend the prior order pursuant to Rule 4:49-2 and Rule 4:50-1, and for reconsideration of the August 2006 order pursuant to Rule 1:7-4. Among other matters, defendant sought credit for any overpayments of child support after the date on which the court declared John emancipated, and a recalculation of Pennsylvania child support payments retroactive to February 4, 2006, for their daughter only. He also requested the court to reconsider its decision to obligate him to pay plaintiff's counsel fees.
On September 13, 2006, plaintiff cross-moved, requesting the court to find defendant in contempt for continuing litigation in Pennsylvania and for failing to pay her counsel fees. On September 18, 2006, defendant paid the counsel fees. On September 20, 2006, defendant wrote to the Pennsylvania court requesting that it defer further action until the New Jersey court decided his motion for reconsideration.
On October 2, 2006, plaintiff filed another OTSC relating to her ongoing allegations that defendant was proceeding in Pennsylvania in violation of the August 2006 order. Plaintiff filed the OTSC because defendant had obtained an adjournment of the New Jersey hearing on her enforcement motion and plaintiff required relief before October 6, 2006, when she was scheduled to appear in Pennsylvania court or risk arrest. On October 3, 2006, the Family Part granted the OTSC with temporary restraints. It enjoined defendant from proceeding with any litigation filed in Pennsylvania arising from the parties' divorce decree. It also ordered defendant to appear at a hearing on October 13, 2006, to determine if he should be held in contempt.
On October 5, 2006, plaintiff filed a motion requesting that the Family Part deny defendant's application for reconsideration, apply New Jersey law to support obligations for John, deem John unemancipated, and direct defendant to pay 100% of John's college expenses. Plaintiff also asked the court to direct defendant to provide unredacted 2005 tax returns and enforce all restraints against defendant for alleged misconduct toward their daughter. On October 12, 2006, defendant advised the ...