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Rosen v. Rosen

December 11, 2009

ROBIN S. ROSEN, PLAINTIFF-RESPONDENT,
v.
PHILIP S. ROSEN, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1943-98.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 14, 2009

Before Judges Carchman and Ashrafi.

Pro se defendant Philip Rosen appeals from two orders of the Chancery Division, Family Part, denying parts of his motion for post-judgment relief and denying the same relief upon reconsideration. Plaintiff Robin Rosen has not filed a responding brief. Philip*fn1 contends that the family court made several errors concerning his applications to claim the parties' daughter as an exemption for the 2006 and 2008 tax years and also to take a college tuition tax credit for those years. He asserts the value of those tax items to him is at least $4,200.

We have reviewed the incomplete record provided in Philip's appendix filed on this appeal.*fn2 We conclude that the family court did not abuse its discretion in denying Philip's motions. See, e.g., Brown v. Brown, 348 N.J. Super. 466, 475 (App. Div.) (appellate court defers to rulings of family court that are supported by substantial credible evidence), certif. denied, 174 N.J. 193 (2002); LaSala v. LaSala, 335 N.J. Super. 1, 6 (App. Div. 2000) (abuse of discretion standard applicable to distribution of marital assets). We affirm.

I.

Philip and Robin were divorced in January 2000. A property settlement agreement (PSA) was incorporated in the judgment of divorce. Regarding their only child, Mallory, born in 1986, the parties agreed to joint legal custody with Robin designated as the parent of primary residence. Philip agreed to pay child support to Robin. The PSA also contained general provisions regarding sharing of information about Mallory's education and medical needs.

The parties agreed they would alternate the right to declare Mallory as a dependent on income tax returns, Philip taking odd-numbered years. Robin could declare Mallory as a dependent in even-numbered years provided that she was working full-time, which was defined as employment of thirty-five hours per week on average for any nine-month period during the calendar year.

At the time of the divorce, the parties maintained a college fund for Mallory valued at $28,500. Robin was designated custodian of the fund subject to stated limitations and obligations with respect to her management of the fund and Philip's participation. One-fourth of the college fund was to be applied to each undergraduate year, and, after available financial aid and loans, Philip was responsible for sixty percent and Robin forty percent of any remaining balance of college expenses up to a maximum equivalent to expenses at Rutgers University.

The fund grew to $32,000 after the divorce. At that time, Philip, who is a certified public accountant, advised Robin to reinvest it in a plan he described as NJ Best 529 because of several advantages of that plan, including a moral obligation clause by which the State of New Jersey guaranteed preservation of the principal. Robin did not heed his advice.

After the stock market fell in September 2001, the college fund dropped to $14,000 in value. Angered that Robin had allowed the fund to diminish, Philip moved to preclude Robin from demanding that he pay for Mallory's college expenses. In response, Robin represented that she and Mallory would pay for college expenses above the remaining fund. In March 2004, the family court dismissed Philip's motion without prejudice.*fn3 The court observed that Robin could not waive Mallory's right to claim college expenses from her father but that Philip's motion was not ripe for adjudication because no claim had been made at that time that he pay college expenses.

In 2005, the parties brought cross-motions pertaining to child support and the college fund. Robin sought a declaration that Mallory was not emancipated because she was attending college and that Philip was still obligated to pay child support. Philip sought information about the college fund and college expenses and also sought sanctions against Robin for allegedly failing to abide by the terms of the PSA. The parties reached a settlement of the issues, which was embodied in an order of May 10, 2005. They stipulated that Mallory was not emancipated at that time because she was a full-time college student. They expected that ...


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