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Colca v. Anson

May 21, 2010

JANE COLCA F/K/A ANSON, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
DAVID ANSON, DEFENDANT-RESPONDENT/ CROSS-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1265-02.

The opinion of the court was delivered by: Lihotz, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued December 15, 2009

Before Judges Parrillo, Lihotz and Ashrafi.

Plaintiff Jane Colca appeals from a Family Part order filed on October 24, 2008. Defendant David Anson cross-appeals. In addition to challenging the court's determinations requiring her to reimburse college expenses incurred for their children and pay counsel fees awarded to defendant, plaintiff argues the trial court erred by imposing an obligation to pay child support in the absence of proof of changed circumstances following a prior order denying that same request. Defendant cross-appeals, arguing the court erred in limiting the ordered amount of college expense reimbursement and requesting an award of counsel fees for his participation in this appeal.

Given the unique factual circumstances presented, we conclude no error resulted from the court's order fixing child support, as plaintiff was not relieved of the fundamental duty to support the parties' child. We affirm the trial court's order of support, including the obligation to pay the children's college expenses, and the award of attorney's fees. Following our review, however, we conclude it is necessary to reverse two provisions of the order addressing the parties' respective obligations for the parties' daughter's past college costs. We remand the matter for further proceedings to discern whether sums plaintiff paid, for which she was denied credit, were received by defendant and, further, to determine the amount of plaintiff's contribution toward the tuition costs incurred for the parties' daughter in 2005-2006.

I.

Plaintiff and defendant divorced on February 18, 1993. They have two children: a son, age twenty-five, and a daughter, age twenty-three.

Substantial post-divorce litigation has occurred over the past fifteen years. In the recent past, a consent order was entered on January 31, 2005 (January consent order) awarding plaintiff residential custody of the parties' daughter and terminating "[p]laintiff's obligation to pay child support for [her]," effective June 14, 2004. Defendant was correspondingly ordered to pay child support of $149 per week. The parties' son was deemed emancipated and plaintiff's child support obligation for him was also terminated. Finally, the consent order provided "defendant shall pay 51% and the plaintiff shall pay 49% of college expenses" once the daughter was accepted to college.

A later motion regarding these same issues resulted in an order entered on November 3, 2005 (November order), which provided in pertinent part:

1. Each party shall be permitted the opportunity to retain the services of a forensic accountant for the purpose of determining the other party's 2003, 2004 and/or 2005 income at his or her own expense. Both parties shall cooperate with all reasonable requests for documents by the other party's forensic accountant.

4. The Defendant's request for child support for [the children] is denied.

9. The parties shall split [the daughter's] college expenses, and [the son's] college expenses incurred after September 6, 2005 as follows: the Plaintiff shall pay thirty-five (35%) percent; and the Defendant shall pay sixty-five (65%) percent. The children's college expenses shall include normal college expenses, including tuition, room and board and fees, and the parties' respective contributions shall be calculated after consideration of all available financial aid, scholarships and student loans received by the children.

11. The Defendant shall promptly provide the Plaintiff with copies of all future bills for the children's college education, and the Plaintiff shall pay her proportionate share of same within thirty (30) days of receipt. For ongoing monthly college expenses for the parties' children, the Defendant shall provide a schedule of all future payments due. The Plaintiff shall forward her proportionate share of said ongoing monthly expenses to the Defendant at least seven (7) days prior to the date payment is due, and the Defendant shall pay said expenses.

14. The Defendant shall provide the Plaintiff with an accounting of the monies he has already paid for the children's college expenses, and the Plaintiff shall reimburse the Defendant for her proportionate share of same within sixty (60) days.

When plaintiff failed to remit her percentage contribution of the children's college expenses, as required by the November order, defendant moved for enforcement of litigant's rights. His motion sought the payment of college expenses for both children, child support for the parties' daughter, and an award of attorney's fees based on the expense he incurred to file the motion.

Following its review of the parties' pleadings and consideration of oral argument, the court concluded plaintiff was in violation of litigant's rights and ordered her to pay (1) "the sum of $1768.69 . . . concerning reimbursement for college expenses [for the parties' daughter's attendance] at Berkeley College," (2) "the sum of $1,596[] . . . concerning reimbursement for college expenses [for the parties' son's attendance] at William Paterson University," (3) "the sum of $161 per week as and for child support for [the parties' daughter]" and $50 per week in arrears due for the time period of September 2, 2008 to October 28, 2008 totaling $1288, and (4) "the law firm of Newman & Andriuzzi the sum of $1250 as and for [defendant's] attorney's fees and costs for the necessity of filing this motion." The trial court denied defendant's reimbursement request for the parties' daughter's college expenses incurred while attending the Fashion Institute of Design and Manufacturing (FIDM) between October 2005 and February 2006, and plaintiff's cross-motion for counsel fees.

In a statement of reasons attached to the order, the trial court set forth its calculation of plaintiff's indebtedness. The court determined that two checks presented by plaintiff, payable to KCA Financial Services, Inc. and to Jeney & Jeney, LLC, would not be credited against her tuition obligation because "[n]o explanation was offered" as to the nature of the alleged payment. The trial court also denied defendant's ...


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