October 28, 2009
DAVID M. ROD, PLAINTIFF-APPELLANT,
DONNA M. GIDLEY (F/K/A DONNA M. ROD), DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-1019-96C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: August 25, 2009
Before Judges C.L. Miniman and Simonelli.
Plaintiff David M. Rod appeals from a final order entered on September 19, 2008, reconsidering and reinstating all provisions except ¶ 4 of an order entered on August 1, 2008; awarding defendant Donna M. Gidley, formerly known as Donna M. Rod, $500 in counsel fees; and denying plaintiff's request for a plenary hearing. The reinstated provisions of the earlier order set child-support arrears at $18,660 through July 28, 2008; directed the Probation Department to establish an account and collect the arrearages as well as weekly child support in the amount of $240 per week; required plaintiff to pay fifty percent of the eldest child's college expenses and related costs; reimburse $1,216.50 to defendant, which was one-half of the initial deposit paid to the college; reimburse defendant for his share ($438.60) of uncovered medical expenses; maintain life insurance; and reimburse defendant for $2,000 of counsel fees and costs in connection with her enforcement action. Plaintiff contends the Family Part judge erred in denying his post-decision request on September 19, 2008, for a plenary hearing and in requiring him to pay one-half of his daughter's college expenses. We affirm.
The parties were married on May 6, 1988, and divorced on April 15, 1996. There were two children born of the marriage, a daughter born in 1990, and a son born in 1992. The parties share joint custody with defendant as the parent of primary residence. The Inter-spousal Agreement executed on October 1, 1995, provided for child support as follows:
The husband shall pay to the wife the sum of $160.00 per month as and for child support, up until October of 1995, at which time this figure shall be increased to $180.00 per month. Payments shall be made directly from the Husband to the Wife. The husband shall also pay work related child care costs, until the children enter school.
As the children enter school, the saving resulting from the decrease in childcare costs shall be divided equally between the parties. This arrangement is made based on weekly net incomes of $363.50 for the Wife and $665.32 for the Husband. (Emphasis added.)
It is undisputed that plaintiff made weekly child support payments at a rate of $160 initially, then $180 as of October 1995, plus one-half of childcare expenses. When the children were both in school by September 2002, plaintiff was paying $240 each and every week through May 7, 2005. It is also undisputed that at that time plaintiff contacted defendant and advised her that he would not be able to make child support payments because he was unemployed.
Defendant agreed to suspend child support temporarily on condition that accumulating arrearages would be paid. Later, defendant agreed to permit plaintiff to make partial payments of $140 per week commencing July 31, 2005. Arrearages up to that time totaled $2,640. With the exception of August 14 and 21, 2005, plaintiff made weekly child support payments of $140 until May 19, 2008, with two payments in 2007 and the last six payments in 2008 being made late. Arrearages for the weeks of July 31, 2005, through May 19, 2008, totaled $14,880 for an outstanding total of $17,520.
Defendant made multiple informal efforts during this period to secure full payment of child support. On February 21, 2006, plaintiff wrote, "My full intention is to make sure [my son and daughter] have their support every week[,]" and reminded defendant that he had paid child support on time and in the full amount from the time of the divorce until May 2005. He promised to make payment when he could "afford to without losing my home." Defendant pressed for payment again on May 4, 2006, stating that plaintiff "owe[d] $6,820 in back CS."
On December 28, 2006, defendant wrote to plaintiff saying they had to talk about "getting back on track with your child support" and college for their daughter. She pointed out that he was $9,220 in arrears and she felt he was taking advantage of her. She threatened legal action if he did not get back on track in sixty days. She also stated that their daughter had begun her search for a college and liked Johnson and Wales University. She asked if he was prepared to pay his share and stated that their daughter would apply for every possible grant and loan, but it might not be enough. "According to our divorce agreement, you are responsible to pay 1/2."
The Inter-spousal Agreement actually provided:
It is specifically understood and agreed by and between the Husband and the Wife that both parties have an obligation to provide for the post secondary education of their children, taking into consideration the respective income and assets of the parties at the time the children [sic] attains sufficient age. The parties agree to consult with a view toward adopting a harmonious policy concerning the post secondary education of the child. Accordingly, when the child is prepared to enroll in post secondary school, the non-custodial parent shall have the right to approve, in advance, an educational institution consistent with the family's means and the child's abilities. Any dispute in this regard shall be resolved by the Court of competent jurisdiction upon application properly made.
Defendant continued to seek voluntary full payment of child support in 2007. On July 26, she wrote to plaintiff recounting his many promises to get back on track by making his full weekly child support payments on a biweekly basis. She noted he had refused to contribute to their daughter's education. She insisted that his procrastination had to stop and he had to begin making full child support payments by September 1, 2007. Finally, on November 12, defendant advised plaintiff that she had consulted with an attorney, who was preparing the necessary paperwork to secure judicial intervention.
The parties' daughter enrolled in a one-year career pastry program at The Institute for Culinary Education in New York City, the tuition for which was $24,334. Defendant made the initial deposit of $2,433 on October 23, 2007, but plaintiff did not contribute his share. Despite defendant's patience, plaintiff never increased his child support payments.
On July 18, 2008, defendant moved for enforcement of litigant's rights. Judge Sheldon R. Franklin granted the motion on August 1, 2008, without opposition from plaintiff as a result of his counsel's neglect. New counsel for plaintiff filed a timely motion for reconsideration, arguing he was only obligated under the Inter-spousal Agreement to make monthly child support payments. Plaintiff contended that payments beyond the prescribed monthly amount were gratuitous payments for the benefit of his children and, as a consequence, the arrearage claimed by defendant was incorrect. He also contended that he was never given a say in the selection of his daughter's post-secondary education and could not contribute to it.
Judge Franklin made specific note of the weekly regularity of plaintiff's payments of child support prior to May 14, 2005, suggesting the Inter-spousal Agreement had a clerical error, which the parties ignored until the reconsideration motion. The judge commented that he had never heard of anyone making regular extra payments for nine years. The judge also noted that plaintiff did not object to defendant's demand that he make up the missed payments at the end of his child support obligation, never suggesting that he did not owe the amount defendant claimed.
After considering oral argument from the parties' counsel, the judge placed his decision on the record:
I've reviewed all of the factual issues in this case, particularly as have now been presented by Mr. Rod, and I am going to reinstate my Order of August 1st, 2008. I find that the references to the amount of support contained in the Property Settlement Agreement were the result of clerical error and that the reference to payments on a monthly basis were intended by the parties to be payments on a weekly basis.
I find that Mr. Rod's conduct throughout the last four years reflects his understanding that his obligation was to pay on a weekly basis, not to pay on a monthly basis. Particularly for the reasons that I've set forth during this oral argument, it is inconceivable to me that he would make such regular payments if he did not have in his mind that he was obligated to make regular payments. It is even more inconceivable that when he has a financial setback and there are communications between the parties as to the nature and frequency of the payments that Mr. Rod would never say that he was paying more than he was required to pay because he thought his payment was supposed to be on a monthly basis, his response without waiver was that he was going to make up the money that he was not paying. There would be no need for him to make up money if his obligation was based on a monthly basis rather than a weekly basis.
I also find that the parties through various negotiations came to an agreement that he was going to pay $240 per week and that he commenced to make those payments at $240 per week in accordance with the agreement of the parties until such time as he ran into a financial problem and at that point in time began making payments of $100 per week less than what the parties had agreed to.
For those reasons, I am going to reinstitute all of the provisions of my August 1st, 2008 Order with the exception of Paragraph 4 which required Mr. Rod to file a Case Information Statement. He has now done that. I find based upon his Case Information Statement that he is presently employed by East Coast Fireplace; that his extrapolated annual salary there is $59,664 gross. And based upon that I find that he can contribute to his child's college education or post secondary education. It was represented to this Court that that entire expense was $24,000. I ordered him to contribute one-half of that expense. I'm going to stand by that. For that reason that paragraph will be also continued as per the Order of August 1, 2008.
I am going to grant to Ms. Gidley an additional $500 counsel fee to be paid by Mr. Rod for this additional hearing.
It was only after this decision that plaintiff for the first time sought a plenary hearing, claiming factual disputes required same. The judge denied this belated request:
The facts that I have found that have been presented to me are so uniformly supportive of a weekly support amount that I do not find that there is anything for me to take a plenary hearing on. This is based not only on the facts that [defendant] presents to the Court, but the facts that I have discerned from [plaintiff's] own conduct; his payments, his failure to raise the fact that he thought that he had overpaid his support account; the way he broke down payments, the letter that says that he knows that he's supposed to be paying every week; the letter that says that he has paid every week. Never in any of this does he take the position that he has overpaid. Never does he take the position that his obligation was on a monthly basis. For all those reasons it's clear to me that this is what both parties understood the arrangement was. So I don't feel that it's necessary for me to have a plenary hearing. The plenary hearing is when there's a substantial dispute as to material facts. And from my consideration of the positions of the parties, I do not find that there's a substantial dispute from the facts other than [plaintiff's] conclusion that there's a dispute. I don't really find that there is a dispute. It appears to me that both parties accepted the fact that this was a weekly payment. So that's why I did not order a plenary hearing.
An order was entered on the date of the hearing and this appeal followed.
Plaintiff contends the judge erred in denying his request for a plenary hearing, as required by Hand v. Hand, 391 N.J. Super. 102 (App. Div. 2007); Tretola v. Tretola, 389 N.J. Super. 15 (App. Div. 2006); and Whitfield v. Whitfield, 315 N.J. Super. 1 (App. Div. 1998). He also contends the judge erred in making him responsible for one-half of his daughter's post-secondary education because she had not made efforts to fund her own education, citing Newburgh v. Arrigo, 88 N.J. 529 (1982), and urges that there was no record support for the proposition that he had the ability to pay one-half of those expenses. He contends his income is less than his roof expenses, making the judge's conclusion untenable under Gac v. Gac, 352 N.J. Super. 54 (App. Div. 2002).
After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that the issues presented by plaintiff are without sufficient merit to warrant discussion in this opinion, R. 2:11-3(e)(1)(A), (E), and we affirm substantially for the reasons expressed by Judge Franklin in his well-reasoned oral opinion delivered on September 19, 2008. The findings and conclusions of the judge are supported by substantial, credible evidence in the record. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974).
We add only the following comments: We observed in Hand, "In some cases, there is clearly a need for an evidentiary hearing to resolve custody or parenting time issues." Hand, supra, 391 N.J. Super. at 105 (emphasis added); see also Tretola, supra, 389 N.J. Super. at 20-21 (requiring an evidential hearing to resolve dispute over emancipation of a child); Whitfield, supra, 315 N.J. Super. at 12 (quoting Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div. 1982) for the proposition that "disputes implicating the welfare of a child and involving conflicting contentions and opinions of lay and expert affiants must be submitted to a plenary hearing"). There was no need for a plenary hearing in this matter. The only "dispute" was plaintiff's claim that the language of the Inter-spousal Agreement trumped the fourteen-year history of weekly performance under the agreement. Where a course of performance is inconsistent with the language of the agreement, which one party claims to be erroneous, a court may look to the course of performance to determine the parties' intent and understanding and construe and reform the agreement to accord with the course of performance.*fn1 See, e.g., State Troopers Fraternal Ass'n of N.J., Inc. v. State, 149 N.J. 38, 50 (1997) (citation omitted) (reforming contract based on party's continuing practice of making retroactive pay adjustments not provided for in agreement); Capanear v. Salzano, 222 N.J. Super. 403, 407-408 (App. Div. 1988) (permitting reformation of a contract where the scrivener failed to accurately express what the parties intended). The judge did not err in denying a plenary hearing under these circumstances.
With respect to his daughter's efforts to fund her own education, although our Supreme Court has required courts to consider that factor, Newburgh, supra, 88 N.J. at 545, here the parties provided in the Inter-spousal Agreement that they would bear this expense and did not require their children to contribute to their education. Thus, this factor was not applicable to the issue before the court. As to plaintiff's ability to pay, in 2007 he earned roughly $30,000 and defendant's gross business income that year was about $33,000 from which she netted roughly $10,000. As of September 19, 2008, plaintiff's annual income was about $59,000. In his Case Information Statement, he did not disclose any assets or liabilities, but claimed his monthly expenses were $20,028.14 of which $2,517.88 was for a mortgage payment. This information was patently absurd. Furthermore, plaintiff had a pre-existing child support obligation and should not have undertaken expenses that jeopardized his ability to meet that obligation. A judge can only decide a case based on the information presented, and here plaintiff clearly did not make an accurate disclosure of his net available income. The resolution reached by Judge Franklin based on comparative gross incomes was fair and reasonable under the circumstances and redounded to the benefit of plaintiff, whose income exceeded that of defendant.