On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1136-98.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and Lyons.
This case arises from a dispute between former spouses, defendant, Diane M. Bove, and plaintiff, Philip A. Bove. Defendant appeals an order requiring her to pay counsel fees for a motion plaintiff filed to compel defendant to allow him to take their daughter on vacation; to confirm that plaintiff would not be liable for any tuition fees for their daughter prior to college; and to set forth what constituted reimbursable "college expenses" as defined in their supplemental judgment of divorce. Defendant also appeals an order denying her motion for reconsideration and compelling her to pay additional counsel fees. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.
The parties divorced on June 28, 2001. There were three children born of the marriage, two adult sons, both twenty-one years old, and a daughter, who is sixteen-years old. The parties' supplemental judgment of divorce provided for joint legal custody of the children, with defendant having sole physical custody. Plaintiff was required to create trust funds for the children's college expenses and he agreed to cover eighty percent of the daughter's college tuition.
In a letter dated October 5, 2007, defendant informed plaintiff she was dissatisfied with the school their daughter would be attending the following year. She was attending the local public school, but defendant explained that both she and the daughter felt the public high school "left something to be desired." Defendant informed plaintiff that she was looking into alternative schools, all of which "range[d] in tuition from $11,000-$13,000." She also noted that "there is absolutely no way I can pay towards any of these schools. [. . .] I would, however be able to apply to financial aid, and I understand at least St. Elizabeth does give out financial aid awards." Defendant then expressed that she would be taking their daughter to various open houses and encouraged plaintiff to share his "thoughts on the matter."
Plaintiff responded by letter dated October 12, 2007. Because plaintiff was required to cover eighty percent of his daughter's college tuition, he informed defendant that he would not contribute in any way to tuition prior to college. He also expressed his frustration that defendant would discuss such issues with their daughter without conferring with him first. Under defendant's direction, and despite plaintiff's expressed disapproval, their daughter took the placement exam for St. Elizabeth's High School and defendant paid $500 to reserve a spot for the daughter for the coming school year, though she did not formally enroll. Plaintiff thereafter verbally requested that defendant sign a written statement confirming that she would not seek any contribution for high school tuition from plaintiff. Defendant refused.
In addition to the daughter's scholastic future, there were other matters of contention relating to educational expenses between the parties. Both sons have college trust funds, as required by the judgment of divorce, which were created to cover only "college expenses." At the time the supplemental judgment of divorce was entered, "college expenses" was defined as "tuition, room, board, books, necessary fees and transportation to and from home for vacation." Since the time their sons enrolled in college, defendant had requested reimbursement from the college trust for miscellaneous items such as food, toiletries, over-the-counter medication, and various other items not specified as "college expenses." Defendant contends that plaintiff also used the funds to cover non-college expenses.
Pursuant to the judgment of divorce, plaintiff was permitted to request dates for vacation with the children upon sixty-days notice. The judgment required plaintiff to respond to such requests within fifteen days of their receipt. Pursuant to these terms, plaintiff sent defendant a letter on January 16, 2008, expressing his desire to take their daughter to Cancun, Mexico, for vacation. Plaintiff had scheduled the vacation for April 19, 2008, through April 27, 2008, which coincided with the daughter's school break. Defendant did not respond to this letter.
Plaintiff sent a subsequent letter on February 2, 2008, reiterating his request from January 16, 2008, and also included a consent letter for defendant to sign, permitting their daughter to leave the United States. Defendant responded on February 10, 2008, and advised plaintiff that she had not reached a decision as to whether or not she felt "comfortable" allowing their daughter to leave the country. Plaintiff sent defendant another letter dated February 14, 2008, imploring her to allow their daughter to accompany him on the trip.
Defendant responded by letter, dated February 16, 2008, reiterating her concerns about the daughter leaving the country, especially because defendant herself did not have a passport and therefore would not be able to travel to Mexico to be with her daughter in the event of an emergency. However she stated, "I am willing to proceed ahead with getting her passport . . . . As of today, that is he [sic] best I can tell you."
On February 26, 2008, plaintiff filed a motion seeking an order granting him permission to take his daughter on vacation and compelling defendant to cooperate in securing their daughter's passport. Plaintiff also requested that the court compel defendant to cover any of their daughter's tuition expenses prior to college, should defendant enroll her in a private high school. In addition, plaintiff sought to have the court define "college expenses" so as to prevent defendant from seeking reimbursement for items outside the scope of the trust. He also requested counsel fees. The court bifurcated the motion to ensure that the vacation issue would be heard before it became moot. Defendant filed a certification on March 20, 2008, addressing only the vacation issue. Plaintiff filed a reply on March 25, 2008.
The court held oral argument on March 28, 2008, and entered an order allowing plaintiff to take his daughter on the scheduled vacation. On that same day, defendant submitted her certification in opposition to the remaining requests contained in plaintiff's February 26, 2008, motion. In that certification, defendant argued that she never requested financial contributions from plaintiff for their daughter's tuition. She also noted that plaintiff often withdrew funds from the children's trust accounts for non-college expenses and had never objected to her requests for reimbursement before.
Plaintiff filed his reply on April 2, 2008, in which he stated that if defendant was sincere in not seeking contributions from him for high school tuition, she "should not have any problem directing her counsel to sign the [consent order] confirming that I will not be responsible for these costs, which is being submitted to her counsel simultaneous to the within motion." He also attached a copy of a deed evidencing defendant's recent sale of investment property for $202,500. Plaintiff asserted that those funds should be used to reimburse him for his counsel fees. His attorney also included a certification of services in compliance with Rule 4:42-9(b).
After the court entered its order on March 28, 2008, defendant sent plaintiff a "travel permission document," which was necessary for the daughter to present upon leaving the United States for the vacation in Cancun, Mexico. However, defendant failed to have the document notarized, rendering it incomplete. Plaintiff informed defendant of the ...