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Mitchell v. Mitchell

January 27, 2010

RUTH ANN MITCHELL, PLAINTIFF-APPELLANT,
v.
FRED MITCHELL, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-263-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 11, 2010

Before Judges Baxter and Coburn.

Plaintiff Ruth Ann Mitchell appeals from a December 15, 2008 order that denied her motion for enforcement of litigant's rights concerning a trust account for college tuition for the parties' son, declined to order the transfer of the parties' cat, and denied her request for counsel fees. We reject plaintiff's claim that her status as joint legal custodian of her college-age son obligates defendant Fred Mitchell to submit an accounting of the funds withdrawn from the trust account. We also agree with the judge's conclusion that in the absence of an agreement between the parties or a prior court order, defendant is not obligated to provide the son with a specified weekly allowance. We also see no basis to interfere with the motion judge's determination that the cat should remain with defendant, and that plaintiff should not be awarded counsel fees. Last, although we agree with plaintiff that the parties' marital settlement agreement (MSA) appears to specify that defendant is obliged to provide plaintiff with advance notice before making withdrawals from the trust account, the motion judge made no ruling, and consequently there is no order on that subject for us to review. We affirm.

I.

Plaintiff Ruth Ann Mitchell and defendant Fred Mitchell were divorced on December 5, 2007. One child was born of the marriage, a son, born in the spring of 1990; he is currently enrolled in college. The MSA specifies that the son's college tuition and other college expenses are to be paid from a Schwab account, for which defendant is designated the custodian. The account consists of joint marital monies and was established under the Uniform Transfer to Minors Act.

Although the parties share joint legal custody of their college-age son, defendant is the parent of primary residence, and plaintiff the parent of alternate residence. In addition to her earlier contribution to the joint funds in the Schwab account, plaintiff pays $145 per week in child support to defendant.

In relevant part, the MSA specifies that:

5.2 Payment of [the son's] College Expenses: Currently, there is one account that exists and is expected to be utilized . . . to defray [the son's] college expenses:

Charles Schwab UTMA account number *****765*fn1 . . . . Both parties shall be entitled to receive quarterly or annual statements from the aforesaid account as well as notice of anticipated expenditures. Payment of all [the son's] college expenses, defined in section 5.3 below, shall be paid by the funds in the aforesaid account. To the extent the aforesaid account does not defray [the son's] four years of college expenses, the Husband shall pay the . . . unpaid college expenses at the time of the event. [(Emphasis added).]

On November 5, 2008, plaintiff filed the motion for enforcement of litigant's rights that is the subject of this appeal. In her motion, she sought: to compel defendant to submit an accounting, along with receipts and other supporting documents of monies withdrawn from the Schwab account; to compel defendant to provide the son with a regular, weekly allowance in order to obviate the son's alleged need to spend his own money on necessities; to compel defendant to provide her with monthly statements for the Schwab account or, alternatively, to provide her with online access; and to compel defendant to return her cat. Plaintiff also sought counsel fees.

In support of her request that defendant be ordered to provide her with monthly account statements, plaintiff alleged that she had not been receiving such statements for the Schwab account. After her motion was filed, her attorney began to receive monthly statements, thus making that issue moot.

Although plaintiff had begun to receive the monthly statements, she argued that although the statements reflected the dates and dollar amount of withdrawals from the Schwab account, defendant had not provided her with any prior notice before making the withdrawals, in violation of section 5.2 of the MSA that so required. Plaintiff also maintained that defendant had not provided her ...


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