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Miller v. Miller


February 16, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-1099-91-S.

Per curiam.


Submitted December 15, 2009

Before Judges Gilroy and Simonelli.

Defendant Matthew Miller appeals from that part of the January 22, 2009 Family Part order fixing the amount of child support and child support arrears; and requiring him to reimburse plaintiff Susan Baita for college expenses for the parties' children and to pay eighty percent of all future college expenses. Defendant also appeals from the trial court's refusal to hear oral argument on the issue of counsel fees. We affirm.

The parties were married on September 24, 1983. They divorced on July 16, 1991. Two children were born of the marriage: M.M., born in 1986, and K.M., born in 1990.

The parties' Property Settlement Agreement (PSA) required defendant to pay $650 per month for child support, which the parties based on defendant's then yearly gross income of approximately $51,000. Plaintiff was not working at the time. The PSA also required defendant to provide medical insurance and to pay all non-covered medical expenses for the children.

The PSA contained the following provision regarding the children's college education:

It is specifically understood and agreed by and between Husband and Wife that both parties have an obligation to provide for the college education of their child, taking into consideration respective income and assets of the parties at the time the children obtain the appropriate age. Parties agree to consult with a view toward adopting a harmonious policy concerning college education of the child. Accordingly, when the child is prepared to enroll in college, the party without primary custody shall have the right to approve in advance an undergraduate college consistent with the family's means the child's abilities. Any dispute in this regard shall be resolved by a court of competent jurisdiction upon application properly made. It shall be understood and agreed that each of the children shall make every effort to apply for scholarships, grants and loans prior to seeking monetary help from their parents for their college education.

Further, children shall fully cooperate with said agencies to attempt to obtain financial aid.

M.M. graduated from high school in June 2005. Before and after that time, defendant had an active role in M.M.'s college selection and paid all travel costs and expenses for his son to visit the University of California, Los Angeles, the University of Southern California, California State University, the University of Arizona (UA), the University of Texas, and colleges in Washington D.C.

M.M was accepted to UA for the 2005-06 academic year and awarded an $8000 per year scholarship. Defendant was fully aware of M.M.'s matriculation at UA. To be sure, defendant paid for and participated in M.M.'s college visit to UA, he agreed to M.M.'s choice of UA, he assisted his son in moving to Arizona, he attended M.M.'s freshman orientation, and he admitted that he would help support M.M. while he was at UA.

Defendant was also fully aware of the cost of M.M.'s college education at UA. In fact, he prepared a four-year cash flow analysis of those expenses. Notwithstanding the PSA's requirement that the parties contribute to those college expenses based on their respective incomes, defendant, plaintiff and M.M. discussed the cash flow analysis and agreed to each pay one-third of M.M.'s college expenses, with M.M.'s portion paid from his scholarship, student loans and work study or part-time work. According to plaintiff, she only agreed to this arrangement for the first year because she could afford her one-third portion.

M.M. began the 2005 fall semester at UA. He left after the 2006 spring semester and lost his scholarship. M.M. then attended Ocean County College (OCC) for the 2006 fall semester, with defendant and plaintiff each paying one-third of his college expenses. Plaintiff also paid M.M.'s one-third portion because he did not have any money.

In the spring of 2007, M.M. returned to Arizona, attended Pima Community College, and obtained a Sallie Mae loan, which paid all of his college expenses. M.M. then returned to UA for the 2007 fall semester and obtained a Stafford loan for $2100. Defendant admitted that he "was willing to sacrifice, and have [M.M.] return [to U.A.] without his scholarship if that's what [M.M.] wanted[,]" that he "was happy that [M.M.] wanted to return to UA[,]" that he "thought that [M.M.'s return to UA] was a great idea[,]" that he and M.M. "had several conversations about [M.M.'s return to UA,]" and that he encouraged and supported the return. However, defendant refused to contribute to his son's college expenses. As a result, plaintiff paid $6275, representing the balance of M.M.'s college expenses. Although defendant denied knowledge of such payments, he agreed that he should pay one-third of M.M.'s total 2007 fall semester college expenses.

M.M. left UA after the 2007 fall semester. Defendant admitted that he "would help [M.M.] choose a new school for the Spring semester 2008." M.M. then attended OCC for the 2008 spring semester. He applied for, but did not receive, financial aid. M.M. paid for his books and other costs, plaintiff paid his $1055 tuition, and defendant paid nothing. Defendant claimed he did not receive any documentation confirming financial aid applications for either of his children's college expenses. Nevertheless, he agreed that he should pay one-third of the $1055 tuition.

M.M. remained at OCC for the 2008 fall semester. He again paid for his books and other costs and plaintiff paid his $1538 tuition. Defendant refused to contribute to M.M.'s tuition because M.M. has not communicated with him since August 2008.

K.M. graduated high school in June 2008. He attended OCC for the 2008 fall semester. He applied for, but did not receive, financial aid. He paid for his books and other costs and plaintiff paid his $1885 tuition. K.M. continued at OCC in the 2009 spring semester, with plaintiff paying $540 of his $1520 tuition. Defendant attempted to pay one-third of K.M.'s tuition but plaintiff's attorney returned his check, claiming that the parties' one-third agreement did not extend beyond M.M.'s first year at UA.

Defendant did not make his June and July 2008 child support payments. As a result, on July 23, 2008, plaintiff filed a motion, seeking, in part, child support arrears, reimbursement for defendant's portion of the children's college expenses that she paid, and an increase in child support for K.M. based on defendant's increase in yearly income to over $100,000 and on her anticipated earnings of $13,000 in 2008.*fn1 Defendant filed a cross-motion, seeking, in part, to declare M.M. emancipated, to terminate his obligation to contribute to M.M.'s college expenses, to readjust child support for K.M., and for counsel fees. By order entered November 21, 2008, the court emancipated M.M. as of October 1, 2008, and denied counsel fees. The court reserved decision on the remaining issues and directed the parties to file updated Case Information Statements (CIS).

At a plenary hearing on January 22, 2009, defendant advised the court that his employment had been involuntarily terminated five weeks before the hearing. The judge advised defendant that this was not a basis for a modification at that time, that defendant had an obligation to obtain other employment, and that defendant's loss of employment may be a basis for a future modification of child support or college expenses apportionment if he did not secure other employment.

Defendant claimed that his 2008 gross income was $125,000. However, his CIS indicated that he earned $122,454 through December 1, 2008, making his twelve-month income $133,500. Defendant contended that he received a one-time payment from his former employment for accrued vacation time, which explained the difference. Defendant also agreed that plaintiff could earn between $20,000 to $24,000 according to the Department of Labor statistics for New Jersey.

Regarding college expenses, the judge found that Gac v. Gac, 186 N.J. 535 (2006) had been satisfied as to M.M.'s college expenses because the parties had reached an agreement for each to pay one-third of M.M.'s college expenses for four years, and because defendant knew that his son was returning to UA and "was all for it[,]" was "pleased with that circumstance[,]" and "was encouraging it, supporting it." In fact, defendant had agreed with the judge's comment during the plenary hearing that "this is not a situation where [defendant was] in a bubble and [did not] know what's going on and four years later somebody hands him a bill[.]" Accordingly, the judge ordered defendant to reimburse plaintiff $3531 for his one-third share of M.M.'s college expenses ($2667 for M.M.'s 2007 fall semester at UA; $352 for the 2008 spring semester at OCC; and $512 for the 2008 fall semester at OCC).

The judge also found, and defendant conceded, that Gac did not apply to K.M.'s college expenses. The judge further found that the parties had no enforceable agreement to pay one-third of K.M.'s college expenses. The judge apportioned those expenses pursuant to the PSA according to their respective incomes and ordered defendant to pay eighty percent and plaintiff to pay twenty percent. The judge also ordered defendant to reimburse plaintiff $1739 for his eighty percent share of K.M.'s OCC college expenses and to pay OCC the balance of the 2008 spring semester college expenses. The judge further ordered that plaintiff and K.M must apply annually for financial aid and take an annual Stafford loan, and that K.M. must discuss with both parties his intention to continue at a four-year institution.

Applying the child support guidelines, the judge set child support for K.M. at $275 per week retroactive to October 1, 2008, based on defendant's yearly gross income of $133,500 and on plaintiff's imputed yearly gross income of $20,000. The court also fixed defendant's child support arrears at $3300 and directed that future payments be made through the Ocean County Probation Department. The court also ordered that the college expense reimbursement of $4270 be added to the child support arrears and paid over time through Probation.

Lastly, because defendant had no health insurance due to the loss of employment, the judge ordered plaintiff to place K.M. on her current husband's health insurance policy, if possible.

On appeal, defendant contends that the court erred in fixing the amount of child support based on a 2008 gross income of $133,500, which improperly included an $8500 one-time payment defendant received for accrued vacation time. Defendant also contends that the court improperly failed to consider his involuntary unemployment as changed circumstances affecting his ability to pay child support, and improperly "forced" defendant into accepting an imputed yearly gross income of $20,000 for plaintiff without conducting an investigation of plaintiff's job skills, possible job training and capacity to work.

Regarding college expenses, defendant, relying on Gac, contends that the judge should have relieved him of his college expense obligation for both children because plaintiff did not seek reimbursement prior to actually incurring the expenses, she did not communicate with him, and she failed to provide timely, adequate documentation for financial aid and loan applications for both children. Defendant also contends that the court failed to apply the factors set forth in Newburgh v. Arrigo, 88 N.J. 529 (1982) in determining college expense contribution, and improperly precluded oral argument at the plenary hearing on the issue of counsel fees.

Our review of a trial judge's findings is a limited one. Cesare v. Cesare, 154 N.J. 394, 411 (1998). "Because of the family courts' special jurisdiction and expertise in family matters, [we] should accord deference to family court factfinding." Id. at 413. Accordingly, we will not "'engage in an independent assessment of the evidence as if [we] were the court of first instance,'" N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)), and will "not disturb the 'factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Where our review addresses questions of law, a trial judge's findings "are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." Z.P.R., supra, 351 N.J. Super. at 434 (citing Manalapan Realty, L.P. v. Twp. Comm. Of Manalapan, 140 N.J. 366, 378 (1995)).

Applying these standards, we conclude that defendant's challenges to the court's decision lack merit. There is "adequate, substantial and credible evidence" supporting the judge's determinations and that the judge correctly applied the law. As to the child support award, defendant's CIS reported his 2008 gross income as $122,454 through December 1, 2008. Calculated for the entire year, defendant's actual 2008 gross income was $133,586. Defendant did not support with competent documentary evidence his claim of a one-time, non-occurring accrued vacation payment.

We reject defendant's contention that the judge "forced" him to accept plaintiff's imputed income of $20,000. Defendant conceded that the Department of Labor's statistics in New Jersey would show that plaintiff should be able to earn roughly $20,000 to $24,000. The court imputed income of $20,000. Defendant neither suggests an alternative amount, nor shows that plaintiff possesses the training and skills necessary to resume a secretarial career or engage in any other type of employment.

Further, "[c]courts have consistently rejected requests for modification [of support obligations] based on circumstances which are only temporary or which are expected but have not yet occurred." Lepsis v. Lepsis, 83 N.J. 139, 151 (1980) (citing Bonnano v. Bonnano, 4 N.J. 268 (1950)). See also Innes v. Innes, 117 N.J. 496, 504 (1990) "[S]upport, whether set by court order or agreement, [may] be modified upon a showing of substantial, non-temporary changes in ability to support oneself or pay support." Gordon v. Rozenwald, 380 N.J. Super. 55, 67-68 (App. Div. 2005). "[T]emporary unemployment is not grounds for a modification of support." Gertcher v. Gertcher, 262 N.J. Super. 176, 177 (Ch. Div. 1992); See also Bonnano, supra, 4 N.J. at 275.

Although defendant was unemployed at the time of the plenary hearing, there is no evidence that this situation was anything other than temporary. Thus, defendant's temporary unemployment at the time of the plenary hearing did not constitute changed circumstances.

Defendant's remaining contentions relating to college expenses are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we add the following comments.

Unlike Gac and Newburgh, a property settlement agreement exists in this case, wherein defendant agreed to contribute to his children's college expenses. There is no doubt that defendant was intricately involved in M.M.'s college selection, that consultation about and defendant's approval of M.M.'s initial matriculation at and return to UA occurred, and that defendant knew of the costs of M.M.'s UA college education. There also is no doubt that defendant knew his children were attending the much less costly OCC, and he conceded at the plenary hearing that he should pay a portion of those college expenses.


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