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Kelly v. Kelly

November 19, 2010

ADAM KELLY, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
REBECCA KELLY, DEFENDANT-RESPONDENT/CROSS-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1353-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 22, 2010

Before Judges R. B. Coleman, Lihotz and J. N. Harris.

Plaintiff Adam Kelly appeals from the Family Part's order following a post-judgment plenary hearing, which denied his request to terminate alimony and child support, and directed him to reimburse defendant Rebecca Kelly, his ex-wife, a portion of their children's college related expenses, health care costs, and child support arrears. Defendant cross-appeals from the same order challenging a credit granted to plaintiff despite insufficient proofs and denying her request for enforcement of a prior order for payment.

Following our review of the arguments presented on appeal, in light of the record and applicable law, we reverse the calculation of child support made pursuant to the child support guidelines and remand for further proceedings to calculate the college student's support needs guided by N.J.S.A. 2A:34-23. In all other respects, we affirm.

The parties were married in July 1985. After an almost nine-year marriage, a Judgment of Divorce (JOD) was entered on June 29, 2004, following a hotly contested trial on all issues. The JOD was amended on July 20, 2004.

The motion court's written opinion determined plaintiff's income, generated from his union counsel position, receipts from a part-time law practice and investments, was fixed at approximately $80,000 per year and imputed $30,000 annually to defendant. The court, although unable to "pin down the parties['] actual lifestyle," noted plaintiff earned between $45,000 - $50,000 during their marriage, but the parties' household expenses exceeded their income by $5,000 - $6,000 every month. Finding the family was subsidized by gifts from defendant's father, the court stated, while plaintiff earned approximately $80,000 in 2004, compared to $50,000 while he was married to defendant, "there [wa]s no way plaintiff c[ould] support [] [d]efendant and the two children at home in the life style primarily established by [d]efendant's father, even if [he] gave [] his net paycheck." After reviewing the parties' incomes and the circumstances surrounding the parties' marital lifestyle, plaintiff was ordered to pay defendant $15,000 per year as permanent alimony. The JOD also provided the oldest and youngest children would reside with defendant and the middle child with plaintiff. Taking into account one child was in his care, plaintiff was ordered to pay $259 per week for the two children in defendant's primary care, which was reduced to $231 when the oldest commenced college.

Animosity continued requiring entry of numerous post-judgment motions to clarify, enforce, or modify the parties' responsibilities recited in the JOD.*fn1 Pursuant to the terms of the post-judgment orders, the two were obligated to contribute funds towards each child's college related expenses, healthcare, and other support costs, with plaintiff being responsible for 55% and defendant 45%.

The hearing under review was ordered following the filing of cross-motions in 2008. Defendant's post judgment motion enumerated sixteen requests for relief, including an adjudication that plaintiff violated prior court orders mandating he contribute to their oldest child's college related expenses and healthcare costs, a request for reallocation of the parties' future financial obligations for the children, and an increase in her alimony award to the level of the marital standard of living. Plaintiff's cross-motion sought reimbursement for tuition costs for their middle child's college costs, emancipation of the children and termination of his obligations to pay alimony and child support. Attempts to mediate a resolution, as well as requests for the parties to stipulate certain facts, failed.*fn2

We briefly recite the status of the children at the time of the hearing. The oldest child was enrolled in a five-year nursing program living in off-campus housing. Graduation was set for May 1, 2009, at which time the parties agreed the child was emancipated. Plaintiff agreed to maintain medical insurance for the child until December 31, 2009. The middle child had attended college for one year while residing with plaintiff, but left school, was working full-time and living with defendant. As discussed below, over defendant's objection, the court declared the child emancipated as of July 1, 2008. The youngest child was a full-time college student, living at school, whose education expenses were satisfied by a scholarship and additional grants, subject to achieving a cumulative 2.7 grade point average.

Defendant was the predominate witness throughout the eleven-day trial that commenced on December 9, 2009 and ended on August 5, 2010. The most contested issue was her request for reimbursement of plaintiff's share of the education-related expenses incurred for their oldest child, beginning in July 2006 until graduation on May 1, 2009. Generally, defendant sought 55% of the following items: approximately $30,000 for three years' tuition, $8400 for fourteen months' housing, $14,000 for meals generalized by using the lowest university meal plan for seven semesters, and $15,000 in student loans.

Plaintiff opposed defendant's claims, repeatedly asserting he had not received any bills or letters relating to the costs, arguing defendant's proofs were deficient particularly as to the application of the child's trust fund monies, objecting to paying items he believed were not encompassed within the term "college expenses," particularly during the child's study abroad, and suggesting the child earned sufficient money in a co-op program to be emancipated.

As to the middle child, plaintiff sought an offset of defendant's proportionate obligation of his estimated $14,000 in educational costs. Plaintiff produced only one check showing he paid $2,850 against a detailed billing invoice reflecting a balance due thereafter of $3,211.18. He asserted he did not need to provide additional receipts or canceled checks as proof of the expenses, only that they were paid while the child resided with him. Defendant argued the child's educational costs must account for $5,000 from his trust funds and any student loans.

On the fourth day of trial, the parties suggested terms of settlement had been reached. While the terms were being recited, however, disagreement arose. Additional efforts to resolve the disputes proved ineffectual.

Trial continued. On the issue of alimony and child support, plaintiff earned approximately $139,046 in 2006, a sum that exceeded the $80,000 found by the court at the time of divorce. He suggested his level of income remained at this level in 2008.

Defendant was employed part-time, as reflected by past income tax returns. In 2008 she earned $7,060.67, testifying her earning capacity was compromised because she had a criminal arrest record as a result of charges pressed by plaintiff or his girlfriend. Although defendant was acquitted following a jury trial, the arrests were not expunged and she believed they precluded her efforts to obtain full-time employment. Defendant argued she could ...


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