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Hikes v. Hikes

August 13, 2009

JANICE HIKES, PLAINTIFF-RESPONDENT,
v.
DAVID W. HIKES, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-40690-89H.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 3, 2009

Before Judges Wefing, Yannotti and LeWinn.

In this post-judgment matrimonial matter, defendant David W. Hikes appeals from numerous provisions of the order entered in the Family Part on July 24, 2007. For the reasons that follow, we affirm in part and reverse in part.

I.

The pertinent factual background may be summarized as follows. The parties were married on June 19, 1965, and have three children: J., born in 1967; D., born in 1969; and R., born in 1978. At the time of the proceedings below, J. was emancipated and the mother of three children; D., who was diagnosed with schizophrenia during high school, was unemancipated and resided with plaintiff in the marital residence. Issues regarding the post-secondary education and emancipation of the youngest child, R., are involved in this appeal and will be discussed below.

The parties were divorced by a judgment entered on March 5, 1992. The judgment incorporated an oral agreement between the parties according to which defendant paid $200 per week in unallocated child support on behalf of D. and R., and $200 per week in permanent alimony.

On February 10, 1999, a judge granted defendant's motion to declare R. emancipated as of June 30, 1996, and required defendant to continue paying $100 per week in child support for D. In that same order, the judge denied plaintiff's request for contribution from defendant towards R.'s college costs. On June 7, 1999, the judge denied plaintiff's motion for reconsideration, but increased defendant's child support obligation for D. to $200 per week.

Plaintiff appealed from those orders and we reversed and remanded for a plenary hearing "to address all relevant factors in a[ss]essing [R.]'s emancipation and the financial issues [d]evolving upon that determination." Hikes v. Hikes, No. A-5614-98 (App. Div. November 22, 2000), slip op. at 12. We also reversed the trial judge's denial of plaintiff's request for enforcement of certain equitable distribution provisions of the divorce judgment "based on laches[,] . . . and remand[ed] for a hearing and findings of fact in accordance with R. 1:7-4." Ibid. We ordered that prior to the hearing on remand, "both parties [were] to submit current case information statements and other relevant financial information." Ibid.

Following our remand, Judge Harriet Derman issued a series of case management orders, two of which are pertinent to the present appeal. On April 30, 2001, Judge Derman issued a case management order scheduling a settlement conference in September and requiring the parties to exchange financial documents. On August 7, 2001, Judge Derman issued an order rescheduling the settlement conference for October 2001, and providing further that defendant was to pay $100 per day after September 1, 2001, "if he d[id] not provide all documents ordered to be produced by the court in its 4/30/01 order (current CIS, 96, 97, 98, 99, 2000 tax returns [and] any amendments)."

Subsequent to the entry of those orders, both parties developed significant health problems resulting in the December 22, 2004 order entered by another judge, noting that "defendant currently suffers from a debilitating heart condition[,] and . . . plaintiff is also . . . afflicted with certain maladies which makes it very difficult for her to appear in court[,]" and ordering the following:

[G]iven [that] the parties' respective health problems have posed (and continue to pose) a significant impediment to the accomplishment of the required plenary hearing, this matter shall be dismissed without prejudice subject to a restoration application which presumably will be made at such time that the parties are well enough to physically appear and prosecute this matter . . . .

The matter was reinstated a year and a half later by an order entered July 18, 2006, which also compelled defendant to "turn over his entire financial portfolio to [plaintiff's attorney] . . . no later than . . . July 19, 2006 at his office."

In June 2007, another Family Part judge conducted a three-day plenary hearing pursuant to our 2000 remand. Defendant represented himself and plaintiff appeared with counsel. The facts adduced at the plenary hearing pertinent to the issues on appeal, are as follows.

Defendant had been employed at Merck, but retired in 1989 due to a heart condition and has not been employed since then. The support obligations set forth in the divorce judgment were based upon defendant's annual income of approximately $75,000, which was derived from stock income, social security, disability insurance and pension benefits. Defendant testified that his taxable income in 2002 was $33,000 and that by 2006, that income had decreased to $12,321; however, defendant submitted no tax returns to substantiate these claims.

Plaintiff asserted that at the time R. was preparing to attend college in 1996, defendant had assets totaling approximately $750,000. At the hearing, plaintiff reviewed defendant's investment statements that had been provided in discovery; those statements disclosed that, as of May 31, 2007, defendant's assets totaled $1,204,545.66.

Plaintiff testified that she was unable to work following the divorce, given the time needed to care for D., as well as her own health problems, which included diabetes, hypertension and a heart condition that required two angioplasties and the insertion of two cardiac stents. Thus, her only income was the support received from defendant; however, plaintiff claimed that her financial difficulties were further exacerbated by defendant's failure to pay child support and alimony in a timely fashion.

Regarding the issue of R.'s emancipation, plaintiff testified that R. performed well academically at a private high school, graduated in 1996 and was accepted at several colleges. Plaintiff stated that R. discussed his college choices with defendant by written correspondence because defendant had moved to Illinois after the divorce. In January 1996, defendant offered to pay one-third of R.'s college expenses if plaintiff and R. would each contribute the same amount.

Defendant claimed that he and R. had no meaningful relationship and that no one had consulted him regarding R.'s college education choices. Citing this lack of communication, as well as his opinion that R. lacked the desire to succeed, defendant questioned why he should contribute to R.'s college expenses. Defendant's total contributions to those expenses consisted of $1200 in checks to R. and approximately $17,000 in stock that defendant had previously purchased for R.

R. chose to attend Rutgers University. He lived with plaintiff because he could not afford room and board. R. worked during the summer and had part-time jobs during the school year. The pressures of working, commuting daily and a difficult course load caused R.'s grades to suffer. R. became distraught and withdrew from Rutgers following the fall 1996 semester. As of that time, plaintiff had paid a total $3515.51 for his Rutgers education.

R. thereafter enrolled in Middlesex County College, where he remained until the fall 2000 semester. Plaintiff paid approximately $11,700 for R.'s attendance at Middlesex County College.

In 2001, R. became employed full-time and earned almost $22,000. In the spring of 2002, R. enrolled as a full-time student at Kean University, and paid his expenses with his earnings as well as with unemployment benefits he received after leaving his prior employment. R. graduated from Kean with honors in August 2004. The total cost incurred by plaintiff for R.'s education at Kean was $18,354.95. Plaintiff testified that she also paid for a computer and dorm expenses, as well as a car, insurance and gasoline for R.

Plaintiff produced a spreadsheet documenting that the expenses she incurred in connection with R.'s post-secondary education totaled $87,897.76. She met those expenses by applying defendant's support payments, borrowing from her mother, incurring substantial credit ...


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