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Pennell v. Pennell

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 10, 2009

BERNADETTE PENNELL N/K/A SEJECK, PLAINTIFF-APPELLANT,
v.
ALAN PENNELL, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-754-06N.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 12, 2009

Before Judges Graves and Newman.

Plaintiff Bernadette Pennell n/k/a Sejeck appeals from a post-judgment order in this matrimonial action. The parties were married on September 23, 1994, and divorced on April 19, 2006. Two children were born of the marriage, a daughter in 1993 and a son in 1995. Their daughter is an athlete who participates in field hockey, lacrosse, and soccer. Their son is also an athlete and participates in lacrosse, football, and other sports as well. The daughter received a $30,000 scholarship to the Peddie School, attributable to her athletic skills. The parents each contributed one-half of the additional tuition costs in the amount of $5,000 each, along with sharing the costs of her books.

The parties entered into a Property Settlement Agreement (PSA), according to which, they share joint legal custody and plaintiff has primary physical custody of the two children. There has been a history of post-judgment motions which have involved aspects of support and the sale of the marital home, among other issues.

The subject of this appeal refers to plaintiff's motion for the following relief: 1) to retroactively increase child support award to April 20, 2007 to account for increased health insurance premium and unexercised parenting time; 2) to review the child support guidelines as child support has not been modified in three years; 3) to request that defendant pay post-judgment interest, $64.10; and 4) to request defendant pay $2,996.76, plus interest for the children's sports activities.

Defendant urged the motion court to deny plaintiff's motion in its entirety and cross-moved to decrease child support, to compel plaintiff to amend her 2007 federal and state tax returns and claim only the daughter as a dependent, and to compel plaintiff to amend her 2008 federal and state tax returns to claim only her son if she had already filed the return and claimed both children. He also sought counsel fees and costs.

In a written post-judgment order, the court addressed each of the issues presented in some detail. Judge Arnold B. Goldman reduced the child support that had been set at $213 per week to $174. He reasoned that the daughter was away at the Peddie School with each of the parties contributing approximately $5,000 plus incidental costs. Taking this into consideration, child support was not found necessary when the daughter was boarding at school for six months of the year.

The court also recognized that there were zero overnight visits for defendant, who had not complied with the visitation schedule. The court pointed out that the wife was receiving $300 per month in limited duration alimony and mentioned the union dues that defendant was required to pay for his full-time position with the post office and the union dues he had to pay at Shop Rite, where he worked a second job to keep up with expenses. In retroactively modifying the child support, the trial court used the motion filing date of December 16, 2008.

The trial court noted that with respect to the issue of claiming dependents, paragraph 23 of the PSA provided that the parties could each claim one of the children as a dependency exemption on federal and state income tax returns. After the first year, the parties agreed to alternate which child was claimed as a dependent. The PSA further stated: "The Husband shall forfeit his right to claim either child as a dependent exemption if he is not current in his child support obligation on January 30 of each year." Defendant proved that he was current with his child support obligation on both January 30, 2007, and January 30, 2008, and the judge so found.

With regard to the issue of the claimed sports arrearage, the PSA set forth in paragraph 8 that: "The parties agree to allocate fifty (50%) percent to the Husband and fifty (50%) percent to the Wife for any and all seasonal sports or sports camp fees, including registration, tournaments and equipment."

Plaintiff sought to be reimbursed $2,996.76 plus interest for various expenses incurred for the sports activities of the children. The trial court agreed that defendant should not be held responsible for the full amount because it included monies expended for gas, hotel, food, and transportation to games and tournaments both within and outside of the State. The court considered the inclusion of all of these charges was "simply over-reaching by plaintiff." The parties agreed to arrears of $726.56 to be paid within sixty days.

In connection with future sports expenses, Judge Goldman considered that the financial burden of the sports activities had become onerous on defendant. It further appeared to the judge that the obligation to obtain defendant's prior consent to engage in new activities was not being strictly adhered to. As a consequence, the court capped defendant's obligation towards sports activities at $1,000 per year with two installments of $500 each payable on January 1, and on July 1.

On appeal, plaintiff raises the following issues for our consideration:

A. THE COURT ERRED BY MODIFYING THE TERMS OF THE PSA LIMITING THE RESPONDENT'S RESPONSIBILITY FOR FUTURE SPORTS EXPENSES TO $1,000.00 PER YEAR.

B. THE TRIAL COURT ERRED IN FAILING TO FULLY ENFORCE THE TERMS OF THE PSA AS IT REDUCED THE AMOUNT THE RESPONDENT WAS REQUIRED TO PAY.

C. THE TRIAL COURT ERRED IN NOT GRANTING RETROACTIVE MODIFICATION TO ACCOUNT FOR THE CREDITS RESPONDENT RECEIVED AS THE PARENT OF ALTERNATE RESIDENCE DURING A TIME IN WHICH HE DID NOT EXERCISE VISITATION BACK TO WHEN HE STOPPED EXERCISING VISITATION, NOT JUST THE FILING DATE.

D. THE TRIAL COURT ERRED IN REDUCING THE CHILD SUPPORT DOWNWARD TO ACCOUNT FOR ONE CHILD'S ATTENDANCE AT THE PEDDIE SCHOOL WHEN ATTENDANCE WAS CONTEMPLATED BY THE PARTIES' PSA.

E. THE TRIAL COURT ERRED IN ALLOWING RESPONDENT TO CLAIM ONE CHILD AS A TAX EXEMPTION ON HIS INCOME TAX RETURNS FOR TAX YEARS 2007 AND 2008 IN VIOLATION OF THE PARTIES' PSA.

An order entered by the Family Part is entitled to our deference. Cesare v. Cesare, 154 N.J. 394, 412 (1998). Where the findings by a trial court are supported by adequate substantial credible evidence they are ordinarily binding. Id. at 411-12. Indeed, we are admonished not to disturb the "factual findings and legal conclusions of the trial judge unless we are convinced they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interest of justice . . . ." Rova Farms Resort Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citation omitted).

Furthermore, matrimonial courts have special expertise in the field of domestic relations and because of that we accord deference to their fact finding. Cesare, supra, 154 N.J. at 412-13. The trial court's findings are amply supported by the evidence in the record and by further comments made during the colloquy at oral argument on February 20, 2009. Additionally, a retroactive decrease in child support could not go beyond the date of the filing of the motion in accordance with the proscription of N.J.S.A. 2A:17-56.23a. See Keegan v. Keegan, 326 N.J. Super. 289, 294 (App. Div. 1999).

We reject plaintiff's arguments set forth in Points C and D regarding the reduction in the amount of child support based on the daughter's attendance at the Peddie School for six months of the year. The change of circumstances found by the trial court was obvious and lent itself to ready calculation.

With respect to the argument in Point E in allowing defendant to claim one child as a tax exemption for the tax year 2007 and 2008, there was no dispute that he was current with his child support obligation. In fact, defendant had a slight surplus in support payments for each of those years.

Nonetheless, plaintiff argues that defendant was not current with his fifty percent share for the "seasonal sports, camps, fees, registration, tournaments and equipment," and therefore, should not be entitled to claim the exemptions. Plaintiff also claims that defendant was in arrears for unpaid post-judgment interest of $64.10 and $464 for his portion of the fifty-eight weeks of the children's increased health insurance premium. None of these expenses were child support obligations as set forth in the PSA. The trial court properly determined that defendant was entitled to claim one child for each of the tax years 2007 and 2008 on the federal and state tax returns.

We turn to the arguments which relate to the modification of the PSA by limiting the husband's responsibility for future sports-related expenses to $1,000 per year. Paragraph 8 of the PSA called for him to participate to the extent of fifty percent for any "any and all seasonal sports or sports camp fees, including registration, tournaments and equipment." In a prior motion proceeding, noted by Judge Goldman, Judge Millard had been troubled by the fact that defendant had not been consulted for his consent to the youths' participation in various sports activities, and Judge Millard directed that requirement be strictly adhered to in the future. Judge Goldman commented that it did not appear that Judge Millard's directive was being followed.

Judge Goldman observed that the costs were out of hand. Plaintiff submitted receipts for all the traveling she did with the in-state and out-of-state activities which included lodging, gas, tolls, and meals. None of these expenses were set forth in the PSA, which limited the cost sharing to fees for seasonal sports or sports camps which included, as expressly stated, "registration, tournaments and equipment." The number of invoices that were submitted on the motion prompted the court to engage in the following colloquy with regard to contribution for future sports expenses:

THE COURT: Well, Judge Millard set an [o]rder for a reason.

MS. SEJECK: And we followed it. Both the children and I both asked Alan prior to them participating.

THE COURT: Well, see, I don't remember the children being a party. That's him, him and you.

MS. SEJECK: Right.

THE COURT: Did he follow it?

MS. SEJECK: But the children let him know that they want to play. I mean, he asks, "Do you want to play"?

THE COURT: I see. You have the children go ask him.

MS. SEJECK: No. I ask him. And the children tell him that they would like to play. He approved them. I haven't asked for anything that I did not seek his permission prior to putting them in.

THE COURT: Well--

MS. SEJECK: And if he's gonna pay for one soccer team but she no longer plays on that team, she plays on one that costs at least half if not a third less--same with the lacrosse teams; they're cheaper than they were the year before. I'm not moving to more expensive teams.

MS. ADAMS (Defendant's attorney): Your Honor, I think the one amount per year would be beneficial just because it would get rid of the charts and the need for receipts and all that.

THE COURT: And it's also a reasonable thing to do because I can, you know, this is his salary, this is all he can really afford regardless of whether he wants it for the children, he'd like the best for the children.

MS. ADAMS: I mean, he actually had to go out and obtain a part-time job at Shop-Rite to help with these expenses. So--

THE COURT: And that impressed me.

MS. ADAMS: -- it's not as if he's just saying --

THE COURT: It impressed me not only that he did, but that he explained it all very well, I thought, in the papers. And I was impressed by that.

MS ADAMS: So he paid 1500 over an 18-month period. So I guess a year would be, if you want to do it by year, it would be 1,000 a year.

MS. SEJECK: That's fine.

THE COURT: Make a new paragraph. Future sports expenses. How are you going to pay this, sir?

MR. PENNELL: I can pay her directly.

THE COURT: But how? A thousand dollars on January 1st of every year?

MR. PENNELL: Oh.

MS. ADAMS: Do you want quarterly, like 250 every quarter, or 500 every six months?

MR. PENNELL: Yeah, I could do it like that, 500.

MS. ADAMS: Five hundred every six months? So, maybe 500 on January 1st and 500 on July 1st.

THE COURT: Any objection?

MS. SEJECK: No.

THE COURT: All right. Future sports activities--future costs of future sports activities. It appears that the financial burden of the children's sports activities have become onerous on the defendant. In the future--make it--it also appears that the obligation to obtain his prior consent is not being strictly adhered to in the spirit of the prior Order. Therefore, the Court is setting the husband's contribution towards extracurricular sports activities of the children to be $1,000 per year. This shall be paid 500 on January 1st at the beginning of the year and 500 on July 1st to the plaintiff.

Anything else?

MS. SEJECK: No, your Honor.

It is clear from the record that plaintiff agreed to a $1,000 annual payment by indicating, "That's fine." When asked if she had any objection to payment in two installments of $500 each on January 1st and July 1st, plaintiff responded, "No." While appearing pro se, we note that plaintiff is a graduate of Widener School of Law. Furthermore, it is evident from the brief she has filed in this court and her presentation of the issues on the motion that she exhibited considerable advocacy skills and knowledge as to the law. Plaintiff cannot take a different position on appeal regarding the limitation of the contribution to be made by defendant to the sports activities of their children from what she agreed to on the record before the trial court. See Pressler, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2009); River Vale Planning Bd. v. E & R Office Interiors, Inc., 241 N.J. Super. 391, 402 (App. Div. 1990).

We are well aware that a PSA between the parties is entitled to deference and its contents should be given significant consideration. Glass v. Glass, 366 N.J. Super. 357, 372 (App. Div.), certif. denied, 180 N.J. 354 (2004). Indeed, the enforcement of such consensual agreements provide the parties with stability in such matters. Ibid. However, there is nothing to preclude the parties from agreeing to a change in the PSA where those terms are no longer workable. Given the economic circumstances and the unanticipated expenses involved in the myriad of sporting activities that both children have been participants, Judge Goldman sought a fair resolution to the situation presented which was expressly agreed to on the record.

Affirmed.

20091210

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