May 12, 2009
MELANIE MILLER F/K/A TAFARO, PLAINTIFF-RESPONDENT,
STEPHEN TAFARO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-339-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 22, 2009
Before Judges Rodríguez and Espinosa.
Defendant Stephen Tafaro appeals from the March 20, 2008 post-divorce judgment order; which among other things, directed him to pay seventy-five percent of the college costs, including tuition and room and board, for his two children. The same order required him to reimburse plaintiff, Melanie Miller, $8,131.33, representing his share of the older child's expenses for the Fall 2007 enrollment at Rutgers University and $7,142.55 for the Spring 2008 semester. Tafaro also appeals from the May 2, 2008 order, denying his motion for reconsideration. We affirm.
These are the salient facts. Tafaro is a pediatric dentist. Miller and Tafaro were divorced in June 2004, after seventeen years of marriage. The dual judgment of divorce included a Property Settlement Agreement (PSA), which provided for joint legal custody of the two children (a son now nineteen years old and a daughter now eighteen years old) and the appointment of a parent coordinator. The PSA also addressed the college costs for the children by providing:
The parties recognize that each may have an obligation to assist the minor children of the marriage financially regarding their future college costs. In light of the children's ages, the parties agree to address the issues of college costs at the time they are incurred. The parties agree that the choice of college will be based upon the input of both parents as well as the child's wishes, so long as the school preferred by the child provides a curriculum and an environment that is consistent with the child's ability, aptitude and goals. The parents shall not unreasonably withhold consent on the selection thereof.
The Defendant will continue to pay child support so long as the children remain enrolled as full-time students for a period not to exceed four years after graduation from high school. The child support and education costs will be reviewed and adjusted as may be necessary at the time of each child's enrollment in college, based on the issues of Newburgh v. Arrigo and the law at that time. [emphasis added]
Despite the existence of a comprehensive PSA, there have been many post-judgment disputes. All of these have been precipitated by Tafaro's refusal to abide by the terms of the PSA and/or subsequent court orders, or by his unremitting belligerence with Miller. In this course of action, Tafaro has not spared his children's mental well-being. This appeal is the latest chapter in his effort to make life difficult for his ex-wife, his children and the parenting coordinators.
Pursuant to the PSA, Judge Stephen B. Rubin appointed John W. Thatcher, Esq., as parent coordinator. Shortly thereafter, there was a disruption in the father/children relationship. In support of her request for payment of a proportionate share of college expenses from Tafaro, Miller certified that "[p]rior to and ever since the entry of the Judgment of Divorce, [Tafaro's] relationship among himself, [Miller] and [their] two children has been, to say the least, extremely strained." By way of example, Miller discusses an incident that occurred on September 21, 2004, in which Tafaro "became completely out-of-control with the children."
Upon picking up the children for parenting time, Tafaro informed them that he would not be returning them home that evening as he was obligated to do. The children became upset and the daughter attempted to get out of the moving car. Once at Tafaro's home, the children refused to go inside and franticly called Miller to come and pick them up. Miller states that as the children approached her car, Tafaro began to yell that she was trying to kidnap the children. Tafaro proceeded to call 9-1-1, even after having been told by the parenting coordinator not to call the police in such situations. The police arrived and eventually the children returned home with Miller.
The following day, Tafaro informed Miller that as punishment for the children's behavior they were to remove all of their belongings from his house by the end of their next weekend with him. Tafaro further told the children that they could only eat his food after asking and receiving permission. Miller states that during that weekend, things became so volatile among Tafaro and the children that the son threatened to commit suicide if he had to spend any more time with his father.
Following this incident, parent coordinator Thatcher wrote a letter to Judge Rubin in which he concluded:
Under the circumstances, I do not believe the children should be subjected to their father's brutality. In my opinion, it is absolutely not in their best interest, and at the same time could lead to frightening circumstances. I do not believe [the son's] threat of suicide was gratuitous. It must be taken seriously. I believe that joint custody should be terminated and that Ms. Miller be given full custody of the children on a temporary basis pending further order f the Court. Parenting time/visitation with Dr. Tafaro should be suspended and should only occur in the future under supervision. I believe it is clear that Dr. Tafaro needs psychological help and that the privileges of parenting should not be reinstated until Dr. Tafaro has proven his ability to the Court through a professional.
Miller subsequently filed an order to show cause. Judge Julie M. Marino suspended Tafaro's parenting time on a temporary basis. On November 3, 2004, Judge Rubin continued the suspension of Tafaro's visitation rights, but permitted parenting time at the initiation of the children. The order also stated that Miller was to have:
[F]inal authority in decisions regarding schooling, medical/psychological needs and other major decisions affecting their children. However, [Miller] shall notify and make best efforts to confer with [Tafaro], joint legal custodian, in all such decisions. Any counseling is to be done either by a psychologist or a psychiatrist. [Tafaro] shall not have direct contact with any such person selected by [Miller].
Tafaro moved for reconsideration of the November 3, 2004 order. Judge Rubin denied the motion to reconsider and appointed a new parent coordinator, Dr. William Campagna, Ph.D. Further, Tafaro was ordered to bring his child support current and to reimburse Miller for his share of the cost of the parent coordinator. Tafaro appealed the order denying reconsideration. We affirmed and denied Tafaro's request for a plenary hearing. Tafaro v. Tafaro, No. A-4402-04T1 (App. Div. July 13, 2006).
Prior to the divorce, Miller had obtained a final restraining order (FRO) against Tafaro pursuant to the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35. The FRO was amended by Judge Rubin on July 13, 2005 to prohibit Tafaro from contacting the children's therapist.
Tafaro moved to have Dr. Campagna removed as parent coordinator; to vacate the judgment for arrears against him; to get a credit to his child support account; and to revise the amended FRO to eliminate the restraints preventing him from contacting the therapist. Miller cross-moved, seeking enforcement of prior court orders concerning payment of unreimbursed medical expenses and counseling fees for the children. Judge Rubin permitted Miller to execute on Tafaro's assets to satisfy the arrears judgment and denied Tafaro's other requests. Tafaro appealed. We affirmed. Tafaro v. Tafaro, No. A-1189-05T1 (App. Div. Aug. 16, 2006). We ordered Tafaro to pay $5,000 in counsel fees, plus costs.
Tafaro then moved to compel Miller to comply with the parenting time order entered prior to the divorce. The judge denied Tafaro's request to enforce the parenting time order, finding that it was abrogated by the November 3, 2004 order. Tafaro's motion to reconsider was denied.
Charles J. Most, Psy.D was appointed as the new parent coordinator on March 30, 2007. In a letter to the parties dated July 6, 2007, Dr. Most discussed a visitation plan because Tafaro had had no contact with his children in thirty-three months. Dr. Most recommended:
[I]n order for this to be successful the following must take place: Dr. Tafaro should involve himself in at least twice weekly psychotherapy with an analytically trained clinician of my recommendation. This should take place for at least six months prior to a further recommendation of a family psychotherapist for father and children, also of my recommendation. This recommendation is put forth in order to lower the anxiety level within Dr. Tafaro so that he can better manage his affect. Upon completion of the groundwork needed for visitation, a schedule will be recommended.
A few days later, Tafaro telephoned Dr. Most, indicating that he was not satisfied with the recommendations and was going to arrange a visit with the children on July 31, 2007. By letter dated July 18, 2007, Dr. Most stated that he "was not able to fully discuss this matter and find resolution with Dr. Tafaro." Dr. Most further noted that he made phone contact with the children, who informed him that they did not want to see their father and feared for their safety. Dr. Most concluded the letter, recommending against the July 31, 2007 visit until further discussions could be arranged.
On February 19, 2008, Miller moved for reimbursement from Tafaro of his proportionate share of the expenses associated with the college costs of their children.
In support of her motion for apportionment of college costs, Miller certifies that she made numerous attempts to advise Tafaro of the children's intent to attend college and the names of the colleges being considered. According to Miller, all such attempts were rejected by Tafaro. Tafaro was informed of the son's SAT scores and his choice of Rutgers University. Upon the son's enrollment at Rutgers, Miller paid $8,520.40 for tuition and room and board for the Fall 2007 semester. Additional expenses included: assistance in setting up the dorm room, $690.33; purchase of text books, $350; and incidentals, $50 per week or $1,281.04 for the semester. The total amount Miller expended for the Fall 2007 semester was $10,841.77. The Spring 2008 semester resulted in similar expenses, totaling $9,523.40. These costs took into consideration a $3,750 interest-free loan for the 2007-2008 school year.
According to Miller, she attempted to inform Tafaro of the daughter's intent to attend college Fall 2008. There was no cooperation from Tafaro. Miller sent a letter to Tafaro, via certified mail, advising him of the daughter's college choices. The letter was returned to Miller after three failed attempts at delivery were made. The daughter agreed to meet with her father at his home on January 18, 2008, in order to discuss her options for college. Miller states that after twenty minutes the daughter ran out of the house in tears.
In Tafaro's responding certification he "totally disagrees with [Miller's] interpretation of past events . . . ." Tafaro alleges that it was Miller who refused to verbally communicate with him between March 2001 and December 2006. In regard to the son's education, Tafaro contends that he tried to be involved. He attended college night at the son's high school along with Miller and the children. During his time there, Tafaro claims that both children refused to interact with him. Tafaro asked his son to call him on the phone so they could arrange a meeting. However, the son never followed up with a call. In August 2006, Miller notified Tafaro that she and the son would be attending an open house at American University. Tafaro informed Miller in writing that he would like to attend with them. However, Miller wrote back telling him that neither she nor the son were ready to spend time with him.
In March 2007, at Miller's request, the son telephoned Tafaro. Tafaro invited his son to his home for dinner for a discussion about college. The son accepted the invitation. Tafaro states, however, that the night before their meeting, his son left a message on Tafaro's cell phone stating that he would not meet at Tafaro's home as he found it to be traumatic. The son suggested they meet at a café. Tafaro found this inappropriate, rejecting the son's suggestion. The son, via email, then offered to speak with Tafaro at his office because the presence of Tafaro's mother, who lived with Tafaro, offended him. Tafaro found his son's email to imply that he would harm Tafaro and his mother if they were to meet. Thus, Tafaro felt it best to avoid any contact with his son.
Judge Fred H. Kumpf set Tafaro's share of college costs at seventy-five percent. The judge went through the twelve Newburgh*fn1 factors. With respect to the child's relationship with the paying parent, a major point of Tafaro's objection, the judge found:
Based upon the parties' discussion of the applicable factors of Newburgh, it is clear that both parties should be responsible for contributing towards [the children's] college expenses. The only factor that points against such a finding is that regarding the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance. While it appears that the children do not have a relationship with [Tafaro], this is but one of twelve factors to be considered and alone is not dispositive of a finding that [Tafaro] should be required to contribute to the college expenses of the parties' children. Furthermore, [Tafaro's] reliance on Gac v. Gac, 186 N.J. 535 (2006), is misplaced. The decision found that a father did not have to contribute to pay for his daughter's college loans where there was no relationship between the father and the daughter, where the father paid child support while the daughter was in college, and where the daughter sought contribution after she had already graduated from college. The court found that a parent or child seeking contribution for college should seek an order for relief before such expenses are incurred. The failure to seek such an application should weigh heavily against the grant of a future application. Id. at 546-547.
Weighing all factors here involved, the parties shall be responsible for contributing their proportionate share of the combined income towards college expenses. Based on the information provided, [Miller] has a net income of $79,558 and [Tafaro] has a net income of $239,602. The total combined income of the parties is $319,160. Therefore, [Tafaro's] proportionate share of the parties' total income is 75%.
With respect to the award of $1,762.50 to Miller, the judge stated:
With regard to bad faith, [Tafaro] has refused to cooperate with regard to establishing the parties' respective responsibility to contribute to the college expenses. These actions are clearly evidence of bad faith on the part of defendant. Therefore, [Tafaro] shall be responsible to reimburse [Miller] for counsel fees and costs associated with filing of this motion. [Tafaro] shall be responsible to reimburse [Miller] for counsel fees and costs associated with filing this motion in the amount of $1,762.50 within 20 days.
Tafaro argues on appeal that Judge Kumpf erred in ordering him to pay a portion of the children's college costs. He argues that: "the clear language of the [PSA] was not given the proper weight" and the judge "failed to properly apply the Newburgh factors to this case or to order a plenary hearing . . . ." Tafaro also contends that the judge "abused his discretion in ordering [him] to pay seventy-five percent of all college costs." He further contends that "the court erred in not reducing [his] child support obligation and by requiring him to pay seventy-five percent of all college expenses." Finally, Tafaro contends that the judge erred in awarding attorney's fees to Miller. We disagree.
From our careful review of the record, we hold that the judge properly applied the governing legal principles.
Moreover, the findings by the judge are supported by the evidence presented in support and in opposition of the motion. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). It is settled that because of the Family Part's expertise in family matters, we must defer to its findings of facts. Id. at 413. We do so here.