On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-879-01A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 17, 2009
Before Judges Grall and LeWinn.
Plaintiff Stefanie Towns appeals from an order entered on her post-judgment application to compel her former husband, defendant John P. Ornowski, to contribute to their child's expenses. The court's order requires defendant to pay sixty percent of the child's medical and dental expenses incurred in 2008 but absolves defendant of any obligation to contribute to expenses for treatment incurred in earlier years. The court also denied plaintiff's request to compel defendant to contribute to the costs of school and summer camp, because she incurred those expenses without consulting defendant.
Because the trial court's determinations on summer camp and school expenses give effect to the parties' property settlement agreement, we affirm that aspect of the order. The court's denial of reimbursement for medical and dental expenses, however, is inconsistent with this court's decision in Gotlib v. Gotlib, 399 N.J. Super. 295 (App. Div. 2008). Accordingly, we modify that portion of the court's order.
The parties were married on March 1, 1998 and have one child who was born in 1999. They were divorced on May 30, 2002, after reaching an agreement on custody, parenting time and support of their child. In August 2008, plaintiff applied for reimbursement by way of a cross-motion she filed in response to defendant's motion for an order compelling her to pay for the cost of defendant's travel to visit their child at a summer camp in Maine that year. This was the first application plaintiff made for contribution to the child's expenses since the divorce in 2002.
Plaintiff sought reimbursement in the total amount of $14,882.17. The amount she sought included $684.68, which was sixty percent of $1141.14 she paid for the child's unreimbursed medical and dental expenses. With the exception of one $488 charge for eye care, which plaintiff paid in two payments of $244, there was no charge in excess of $150.
The remaining $14,197.50 was for fifty percent of the cost of child care since the divorce: $12,000 for summer care; $2087.50 for care prior to and after school; and $110 for additional child care.
The following provisions of the parties' agreement are pertinent to plaintiff's request for reimbursement.
Paragraph 4.2 provides: "Any unreimbursed or uncovered medical, dental, hospitalization or prescription drug expenses for the child shall be paid 60% by the Husband and 40% by the Wife. Neither party shall incur any expense in excess of $150 without the consent of the other party except in the case of an emergency."
The parties acknowledge that their child is currently in full-time day care at the Goddard School at a cost of approximately $725 per month. The parties acknowledge that the child will need full-time day care until at least September of 2004 when he will be eligible to begin Kindergarten. Beginning the first Friday following the date of this Agreement, and continuing until the child begins Kindergarten, the Husband shall pay directly to the Wife the sum of $54 per week which will represent the Husband's contribution to these day care expenses. The Wife shall be responsible for the remaining day care expenses, however, the parties acknowledge and agree that the Wife shall have the right to choose alternate (less expensive) day care arrangements, at any time in the future. If the day care expenses are reduced to less than $108 per week, the Husband's contribution would be reduced to 50% of the actual amount. Once the child begins Kindergarten, the parties shall jointly agree upon appropriate pre-school and after-school care and the Husband shall be responsible for 50% of the cost thereof. Paragraph 9.10 provides: "Failure on the part of either party to insist upon the strict performance of any of the provisions of this Agreement shall in no way constitute a waiver of any subsequent default or similar nature."
With respect to expenses for summer camp and child care, the trial judge found that the parties' agreement conditioned defendant's obligation to contribute that expense on consultation and agreement. We agree. Paragraph 3.4 does not permit any other interpretation. Its terms unambiguously define the parties' respective responsibility for work-related child care costs during the period prior to September 2004. Thereafter, the parties agreed that defendant would pay fifty percent of the cost of the "pre-school and after-school care" that they both deemed appropriate for their child. Without a subsequent agreement on appropriate care, and plaintiff does not claim that there was one, defendant had no obligation under paragraph 3.4. Thus, ...