September 4, 2009
JACKIE MYERS SIMMS, PLAINTIFF-APPELLANT,
GARY J. BASRALIAN, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-562-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 3, 2009
Before Judges Graves and Ashrafi.
This is a post-judgment marital matter. The parties were married on August 24, 2002, and divorced on December 15, 2005. They have one child, who was born in 2003. In a property settlement agreement (PSA) that was incorporated into the dual judgment of divorce, the parties agreed to joint legal custody of their child, with plaintiff as the parent of primary residence. The parties further agreed that plaintiff and the child could relocate to suburban Philadelphia.
With respect to their child, the parties agreed to equally share the cost of private preschool, kindergarten, summer camp, and college education. Specifically, paragraphs thirty-five and thirty-six of the PSA read as follows:
35. Each party shall pay one-half of the cost of kindergarten at a school mutually selected and pre-school at the West Hill School or a mutually selected pre-school which costs an equivalent amount of money and has a program on Monday, Wednesday and Friday mornings for three year olds and a five-day morning schedule for four year olds. Each party will pay one-half of the cost of an agreed upon camp with the cost of camp to be determined by the parties at the time of scheduling.
36. Each party shall pay one-half of the cost of the child's college education after the use of custodial funds specifically earmarked for college. The Wife represents that there are no custodial funds that are so specifically earmarked.
The PSA does not state whether the child is to attend private school or public school between kindergarten and college. In February 2008, when the child was four years old, plaintiff filed a motion to compel defendant to pay one-half of the preschool costs at the Shipley School, an exclusive private school for students in preschool through grade twelve. In response to plaintiff's motion, defendant certified that he never agreed to enroll their child "in a school which costs more than the West Hill School," and he certified that the West Hill School costs approximately $5500 per year and the Shipley School costs approximately $18,000 per year. In addition, defendant filed a cross-motion seeking the appointment of a parenting coordinator to assist the parties in promoting their child's best interests. Defendant also sought an order compelling plaintiff to cooperate with the parenting coordinator "upon penalty of contempt."
Following oral argument on March 25, 2008, the trial court found that defendant had not agreed to enroll the parties' child in the Shipley School and, if plaintiff elected to enroll the child in the Shipley School for preschool during the 2008-2009 term and for kindergarten during the 2009-2010 term, then defendant's financial contribution would be limited to the cost of the West Hill School. The court also appointed a parenting coordinator, and it required plaintiff to cooperate with the parenting coordinator. The trial court's oral decision was memorialized in an order dated April 11, 2008. Plaintiff appeals from paragraphs two and six*fn1 of the order which read as follows:
2. Plaintiff shall be entitled to enroll [the child] in the Shipley School for pre-school during the 2008-2009 term and for kindergarten for the 2009-2010 term. In the event that plaintiff elects to enroll [the child] at the Shipley School for pre-school and kindergarten, defendant's financial responsibility shall be limited to the cost of the West Hill School and plaintiff shall pay all of the remaining cost for the enrollment at the Shipley School including tuition, books, fees, and any other expenses associated with [the child's] enrollment at the Shipley School. The parties' Property Settlement Agreement shall otherwise govern [the child's] education, which Agreement only allows [the child's] enrollment in private school for pre-school and kindergarten.
6. Plaintiff shall cooperate with the Parenting Coordinator, and failure to do so may result in sanctions and/or contempt charges.
On appeal, plaintiff presents the following arguments:*fn2
THE TRIAL COURT'S SUA SPONTE RULINGS WITH REGARD TO THE CHILD'S POST-KINDERGARTEN EDUCATION WERE MADE IN VIOLATION OF THE PLAINTIFF'S PROCEDURAL DUE PROCESS RIGHTS AS BEYOND THE SCOPE OF THE ISSUES BEFORE IT.
IN RULING SUA SPONTE THAT THE PARTIES' DIVORCE AGREEMENT ONLY ALLOWED THE MINOR CHILD TO ATTEND PRIVATE SCHOOL FOR PRESCHOOL AND KINDERGARTEN, THE TRIAL COURT IMPROPERLY ENGAGED IN A REWRITING OF THE PARTIES' DIVORCE AGREEMENT WITHOUT LEGAL BASIS MANDATING REVERSAL.
THE TRIAL COURT'S SUA SPONTE RULING WITH REGARD TO THE CHILD'S POST-KINDERGARTEN EDUCATION WAS IN DEROGATION OF THE MINOR CHILD'S SUBSTANTIVE DUE PROCESS RIGHTS AS WELL AS BEING PREMATURE AND WITHOUT ANY EVIDENTIAL BASIS WHATSOEVER, INCLUDING ANY EVIDENCE AS TO WHAT EDUCATION OR SCHOOLING WOULD BE IN THE CHILD'S BEST INTEREST OR WITHIN THE PARTIES' FINANCIAL ABILITY TO PAY TWO YEARS HENCE.
THE TRIAL COURT ERRED IN RENDERING ITS SUA SPONTE RULING WITH REGARD TO THE CHILD'S POST-KINDERGARTEN EDUCATION IN THE ABSENCE OF A PLENARY HEARING, GIVEN THE GENUINE ISSUES AND MATERIAL FACT AS TO WHETHER THE CHILD WOULD ATTEND PRIVATE OR PUBLIC SCHOOL AT THAT JUNCTURE.
THE TRIAL COURT ERRED IN REFUSING TO HOLD THAT THE DEFENDANT'S POST-ACCEPTANCE OBJECTION TO THE SHIPLEY SCHOOL WAS NOT BARRED BY THE DOCTRINES OF LACHES, WAIVER OR ESTOPPEL, BUT AS BEING REASONABLE UNDER THE CIRCUMSTANCES, AND THEREBY DECLINING TO ENFORCE THE PARTIES' DIVORCE AGREEMENT SO AS TO REQUIRE THE DEFENDANT TO CONTRIBUTE ONE HALF THE COST TOWARDS THE CHILD'S ATTENDANCE AT THE SHIPLEY SCHOOL.
THE TRIAL COURT ERRED IN FAILING TO CONDUCT A PLENARY [HEARING] GIVEN THE GENUINE ISSUES AND MATERIAL FACT AS TO WHETHER AN AGREEMENT EXISTED AS TO THE CHILD'S ENROLLMENT AT THE SHIPLEY SCHOOL OR ANY FINANCIAL LIMITATIONS AS TO THE RESPONSIBILITY FOR THE COST OF SAME.
THE TRIAL COURT ERRED IN THREATENING THE PLAINTIFF WITH THE IMPOSITION OF SANCTIONS AND/OR CONTEMPT CHARGES WITH REGARD TO THE PARENTING COORDINATOR PROCESS GOING FORWARD IN THE ABSENCE OF ANY FINDING OF ANY PRIOR LACK OF COOPERATION ON THE PART OF THE PLAINTIFF, AND THAT DOING SO WAS VIOLATIVE OF THE PLAINTIFF'S DUE PROCESS RIGHTS UNDER BOTH THE FEDERAL AND STATE CONSTITUTIONS.
After reviewing these contentions in light of the record and the applicable law, it is clear from the e-mails sent by defendant to plaintiff on February 1, 2008, and February 5, 2008, that he never agreed to enroll their child in the Shipley School, and it is equally clear that his objection to the Shipley School is not barred by any equitable considerations. Accordingly, we affirm the part of the order that denied plaintiff's motion to compel defendant to pay one-half of the child's expenses at the Shipley School, and we also affirm the part of the order that requires plaintiff to cooperate with the parenting coordinator. However, because the PSA is silent regarding the child's enrollment in public school after kindergarten, and the record was not sufficiently developed to support a reliable finding that the parties had agreed that the child would attend public school after kindergarten, we reverse the part of the order stating the PSA "only allows [the child's] enrollment in private school for pre-school and kindergarten."
In a certification in opposition to plaintiff's motion, defendant argued the PSA "envisioned" that the parties' child "would be enrolled in the public school program" after kindergarten. But plaintiff certified to the contrary: "It was always discussed and agreed that [our child] would attend a private school." In addition, plaintiff argued it was important for their child "to be settled in one spot for his academic career." Despite these conflicting assertions, the motion judge ruled the PSA "only allows" the child to attend preschool and kindergarten at a private school.
Plaintiff contends the court erred in prematurely determining the child's future education. We agree. Although a plenary hearing is not required to resolve every factual dispute arising in the context of a post-judgment matrimonial proceeding, this was a genuine, substantial dispute regarding an important matter and, in such cases, "we have repeatedly emphasized that trial judges cannot resolve material factual disputes upon conflicting affidavits and certifications."
Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.), certif. denied, 142 N.J. 455 (1995).
With respect to paragraph six of the order, which requires plaintiff to cooperate with the parenting coordinator, we perceive no valid reason to intervene because plaintiff's concerns at this point are purely hypothetical. "We will not render advisory opinions or function in the abstract; nor will we decide a case based upon facts which are undeveloped or uncertain." Zamboni v. Stamler, 199 N.J. Super. 378, 383 (App. Div. 1995).
In view of the foregoing, the order on appeal is affirmed in part and reversed in part.