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Kelly v. Kelly


November 19, 2010


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

Per curiam.


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 not reach the imputed $30,000 in the JOD and asked the court to revise that provision and reset her alimony award.

Plaintiff attacked defendant's claims, introducing her 2006 federal income tax form K-1 reflecting her $149,675 capital account in the Lapidus Family Partnership, and her Smith Barney Financial Management Account reflecting a value in July 2007 of $137,799.81, with six months earnings of $3,895.18.

As to claims for reimbursement of medical expenses incurred for the children, defendant compiled a schedule, testifying the bills totaled $763.11 not $711.58 as recited in her certification. Plaintiff condemned defendant's failure to use in-network providers and asserted he was not provided copies of the bills for prior approval. Defendant's additional request sought return of the amount of a dental insurance reimbursement check delivered to plaintiff for services that had been paid by defendant. A prior order required plaintiff to pay this sum, which he avowed he had done.

The trial judge issued a forty-four page, written opinion on August 28, 2009. In accordance with his findings and conclusions, plaintiff was ordered to reimburse defendant 55% of their oldest child's college related expenses for the 2006 through 2009 academic years, computed as $17,902.87. In this regard, the court disallowed certain claims for clothing and travel costs as beyond the scope of the prior orders, but determined the parties were responsible to pay off campus rental expenses, food and books.

As to the college costs for the middle child, the court noted plaintiff failed to substantiate the claimed expenses by "canceled checks or tuition statements," except for the single check and accompanying invoice reflecting tuition and fees equaled $6,061.18. Consequently, defendant's obligation was $2,727.53. This sum was offset against amounts due defendant.

In fixing child support, the trial judge incorporated the parties' agreement that the oldest child was emancipated as of May 1, 2009. The court determined the parties' oldest child, while living at college, incurred duplicate living expenses, entitling plaintiff to a decrease in child support payments for that period. The court determined the middle child was emancipated as of July 1, 2008. Consequently, plaintiff was due a $20 per week credit from July 1, 2008 until May 1, 2009 or $880. This resulted from defendant's child support obligation for the middle child, which was accounted for by reducing the child support plaintiff paid for the youngest child. The court denied plaintiff's request for emancipation of the youngest child, who remained a full-time college student. Although most of the child's expenses were covered by scholarships, the court applied the child support guidelines and calculated plaintiff's child support obligation at $226 per week, effective May 1, 2009.

The court granted defendant's request for reimbursement of $736.11 she incurred for the children's medical expenses, finding them reasonable. The judge denied repayment of the dental check claim, concluding it had been resolved by a prior court order.

The trial judge denied defendant's request to increase alimony, as well as plaintiff's request to terminate alimony, concluding each party had "failed to show[] a changed circumstance[]." The trial judge accepted the established marital lifestyle as stated in the JOD, commenting the court could not "pin down the parties' actual lifestyle," but found "a range of marital lifestyle" as "established by a combination of plaintiff's income and defendant's father's substantial contribution." In reviewing defendant's trial exhibits, the court determined defendant's combined sources of income allowed her to "liv[e] the marital lifestyle." In regard to plaintiff's application, the court noted his financial circumstances, which had improved following divorce, had no affect on his ability to pay support.

On appeal, plaintiff argues the court erred in (1) denying his request to terminate child support and instead applying the child support guidelines to fix child support for their college student and, in so doing, ignored income from defendant's assets; (2) awarding defendant sums related to claims she had abandoned during trial; (3) incorrectly computing the amounts he paid for the son's college costs; (4) continuing alimony using "a range of marital lifestyle[,]" which was inconsistent with competent, relevant and reasonably credible evidence; and (5) failing to "rule on defendant's credibility nor rule on plaintiff's application to dismiss the pleadings under the doctrine of unclean hands." Defendant's cross-appeal argues the court's calculation of a credit based on the costs expended for the middle child's college expenses "was clearly erroneous" and the denial of the insurance check reimbursement was error.

Our review of a trial judge's factfinding is limited: any such findings will be binding on appeal "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998). Family Part factfinding receives particular deference because of "the family courts' special jurisdiction and expertise in family matters," id. at 413, and will be disturbed only upon a showing that they are "manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence." Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)) (internal quotation marks omitted).

When confronted with the claim that the trial court erred in its determination of the facts, we consider "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record.'" Beck v. Beck, 86 N.J. 480, 496 (1981) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). We defer to the trial court's assessment of witness testimony, and the credibility determinations therefrom. Cesare, supra, 154 N.J. at 412; Pascale v. Pascale, 113 N.J. 20, 33 (1988). When a reviewing court satisfies itself of the evidentiary support for the trial court's findings, "'its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal.'" Beck, supra, 86 N.J. at 496 (quoting Johnson, supra, 42 N.J. at 162).

On the other hand, we owe no deference to a court's application of the governing law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). With these principles in mind, we review the arguments offered by the parties.

Plaintiff argues the court erred in not eliminating his support obligation and, instead, increasing the weekly payment after calculating support pursuant to the child support guidelines. R. 5:6A. He asserts the youngest child's grants and scholarships satisfy all tuition and housing costs, and her access to trust fund monies would satisfy any other expenses. Plaintiff advances the proposition that child support should be reduced when a child goes to college because of the duplication of expenses when the child lives at college.

The issue of "[w]hether a child is emancipated at age 18, with the correlative termination of the right to parental support," is fact-sensitive. Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). "[T]he essential inquiry is whether the child has moved 'beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own.'" Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997) (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)). This determination involves a critical evaluation of the prevailing circumstances including the child's needs, interests, and independent resources, the family's reasonable expectations, and the parties' financial ability, among other things. Newburgh, supra, 88 N.J. at 545. The moving party bears the burden to establish the circumstances that warrant a change in support. Zazzo v. Zazzo, 245 N.J. Super. 124, 132 (App. Div. 1990), certif. denied, 126 N.J. 321 (1991).

We reject plaintiff's argument that he should be relieved of his obligation to pay child support. Moreover, plaintiff's assertion suggesting he was denied a full hearing in regard to the child's emancipation lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

The child's laudable effort and initiative resulted in the award of scholarships relieving her parents of the financial burden of college costs. This alone does not result in the elimination of support. Plaintiff offers no backing for the suggestion that the child's costs are lessened, which is therefore rejected. Arguably, a child's needs may increase while away at college. See Madeline Marzano-Lesnevich and Scott Adam Laterra, Child Support and College: What is the Correct Result?, Journal of the American Academy of Matrimonial Lawyers, Volume 22, Number 2, 2009, 335 (arguing the myriad of college costs should be provided in addition to the amount of child support allowed in the guidelines). In addition to defendant's maintenance of a residence for the child, Hudson v. Hudson, 315 N.J. Super. 577, 584 (App. Div. 1998), typical expenses outside of the cost of tuition, housing, books and computer costs include items necessary for a college experience such as transportation (including automobile, gasoline, parking and travel expenses), furniture (such as lamps, shelves, or dorm set-up and small appliances), clothing, luggage, linens and bedding, haircuts, telephone, supplies (like paper, pens, markers or calculators), sundries (such as cleaning supplies, laundry detergent), toiletries (soap, shampoo and other personal hygiene necessaries), insurance (automobile, health and personal property), costs of college events and organizations, entertainment (including school breaks and vacations), and spending money. This list is not exhaustive and likely would be expanded if a child lived in an off-campus apartment.

Nevertheless, the items cited easily illustrate the need for parental support for a child attending college.

We do agree, however, that the appropriateness of calculating child support under the guidelines for a twenty-year old living at college was not explained. We are constrained to remand for further review of this issue.

"The guidelines... shall be applied when an application to... modify child support is considered by the court." R. 5:6A. This presumptive application of the guidelines may be rebuttable and, upon a showing of "good cause," which includes "the considerations set forth in Appendix IX-A[,]" the guidelines may not apply. Ibid. Specifically, Appendix IX-A states the guidelines apply to children up to age seventeen and "shall not be used to determine parental contributions for college... nor the amount of support for a child attending college." Pressler & Verniero, Current N.J. Court Rules, ¶ 18 Appendix IX-A to R. 5:6A (2011). In instances of the guidelines' inapplicability, the decision to set support is subject to the consideration of the factors enumerated in N.J.S.A. 2A:34-23.

It may well be that once a statutory analysis of the child's expenses is made, plaintiff's obligation may be more or less than the guidelines' amount. In any event, the analysis of these facts must be made when fixing support in the circumstances here presented. Although we reverse the provision of the August 28, 2009 order and remand for additional proceedings, we note the prior order requiring the payment of $193 per week would remain in effect, subject to further modification upon remand.

Plaintiff next suggests "the court erred when it awarded funds to the defendant after the claims had been abandoned." Plaintiff refers to the trial court's determination that the oldest child incurred $10,523.13 for "food and books" of which he was ordered to pay 55%. Defendant agreed she was not entitled to the reimbursement, explaining the child used her own money for the expenses but declined to participate in the proceeding.

During cross-examination, plaintiff argued defendant was not entitled to contributions for anything but college-related expenses covered by the December 2005 order. The trial court reviewed the obligations, stating: "As per Provision 4 of the December 5, 2005 Order, 'plaintiff shall pay 55% of the daughter's college food and book expense going forward.'" This provision specifically took into account that the child used her earnings to pay "miscellaneous expenses not defined as 'college expenses.'"

Further, in his presentation of his case, plaintiff advanced no reason to be relieved from the provisions of the prior order, the terms of which are explicit and were never appealed.

In view of the entirety of the record, we disagree that defendant abandoned this claim. Child support remains an entitlement of the child that cannot be waived by the parent. See Dolce v. Dolce, 383 N.J. Super. 11, 18-19 (App. Div. 2006) (stating "a parent cannot bargain away a child's right to support because the right to support belongs to the child, not the parent"); Patetta v. Patetta, 358 N.J. Super. 90, 94 (App. Div. 2003). We find no unfairness or inequity in the court's exercised discretion to enforce its prior order. Crespo, supra, 395 N.J. Super. at 193-94.

In our view, the trial judge thoroughly reviewed the evidence, which included the child's bank statements and identified items spent for food and books. Finding no basis to relieve plaintiff of his previously ordered obligation, the court enforced the provisions of the December 5, 2005 order. See Dolce, supra, 383 N.J. Super. at 19 ("'[T]he moving party has the burden of establishing the circumstances that warrant the change.'" (quoting Zazzo, supra, 245 N.J. Super. at 132).

Plaintiff also suggests defendant abandoned a claim for overpaid child support in the amount of $880, resulting from the middle child's emancipation. Alternatively, he argues defendant's pleadings did not explicitly address this request, precluding her entitlement to payment. We are not persuaded.

The trial judge analyzed the parties' support obligations in light of plaintiff's motion to emancipate the children and otherwise to eliminate his obligation to pay support. "[G]iven the inherent equitable powers of the Family Part, support orders, including those setting emancipation events, 'may be revised and altered by the court from time to time as circumstances may require[.]'" Dolce, supra, 383 N.J. Super. at 18 (citing N.J.S.A. 2A:34-23). "If circumstances have changed in such a way that [the support provision] would no longer be equitable and fair, the court also remains free to alter the prior arrangement." Lepis v. Lepis, 83 N.J. 139, 161 n.12 (1980).

In accepting plaintiff's assertion that the middle child had not unequivocally moved until July 1, 2008, the trial judge could not ignore the fact that from that date until May 1, 2009, plaintiff continued to receive a financial benefit as if the child had not been emancipated. Once a child is declared emancipated, the entitlement to receive child support ends.

Filippone, supra, 304 N.J. Super. 308. Under these circumstances, the court's determination that defendant overpaid her obligation after the date of emancipation is not an abuse of discretion. Plaintiff was merely ordered to return that to which he was not entitled.

In support of his assertion that defendant waived her claim to the uninsured medical expenses, plaintiff accurately recites one segment of the record; however, he omits the remaining portions that give context to the quoted statement. Defendant's agreement not to pursue the reimbursement requests was part of what was believed to be a settlement. Once plaintiff rejected the partial resolution in favor of a comprehensive settlement of all issues, the offer was rendered meaningless.

The trial court considered defendant's testimony of why out-of-network providers were used along with her proffers regarding notice to plaintiff. The trial judge determined the expenses were "reasonable," incurred for the benefit of the children and, thus, subject to reimbursement. We again decline to interfere with the court's exercised discretion.

Next, plaintiff challenges the limitation of the reimbursement of the middle child's college expenses to only those sums proven to be paid by him. At trial, plaintiff asserted "there's nothing to contravene that I made those payments." As he did below, plaintiff raises the same contention.

The court rejected plaintiff's general claim for $14,000, because he introduced only one check and an invoice showing a balance due of $3,211.18. The court declined to order reimbursement for payments, likely from a tuition payment service, that were never explained, as well as loan expenses and $5,000 from the child's trust fund. In light of the animus and distrust between these parties, which is palpable when reading the record, we defer to the determinations of the trial judge who had the opportunity to view the witnesses.

Also, plaintiff, citing Aronson v. Aronson, 245 N.J. Super. 354 (App. Div. 1991), argues the court erred by failing to determine whether plaintiff's restricted capital account in the Lapidus Family Limited Partnership should be considered as if it were a liquid asset. We reject this argument, concluding it lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We include only these brief comments.

In Aronson, we held consideration of an obligee's income from an inheritance must be considered when reviewing the need for alimony. Id. at 363. We stated: "The issue is not actual receipt of funds but access to them. So long as the spouse has the ability to tap the income source... whether he or she actually obtains the cash in hand is inconsequential." Id. at 364-65.

This principle has no application here. Defendant's interest in the family partnership was not recently acquired; it existed at the time of divorce and the minimal income distributed from the asset was considered when alimony was determined. The record supports the trial court's finding that the parties failed to prove changed circumstances warranting a review of the previously determined alimony award. That conclusion will not be disturbed.

Finally, we reject as meritless plaintiff's last two challenges arguing: (1) the trial court's statement that there was "a range of marital lifestyle" and, otherwise, that the trial judge was required to enhance the finding stated in the JOD; and (2) the court failed to rule on plaintiff's motion to dismiss, contending defendant was guilty of unclean hands. These arguments do not warrant further discussion. R. 2:11-3(e)(1)(E).

Turning to defendant's cross-appeal, she first argues that granting plaintiff a credit, computed as 45% of the amount allowed for the middle child's college costs, against the sums she was owed was erroneous, because plaintiff did not prove he paid the sums. The court's findings are based upon a combination of the documents and plaintiff's testimony, which was accepted. We discern no basis to interfere with this finding and the conclusions drawn therefrom. Crespo, supra, 395 N.J. Super. at 193-94.

Next, defendant suggests the judge erred in denying her claim for the insurance reimbursement of a dental bill intercepted by plaintiff. The court accepted plaintiff's explanation that the reconciliation of payments set forth in the February 2005 order showed he satisfied the amount from his share of escrowed funds. Defendant's claim of error is not persuasive. Crespo, supra, 395 N.J. Super. at 193-94. See also Packard-Bamberger & Co., Inc. v. Collier, 167 N.J. 427, 447 (2001).

In summary, save for the calculation of child support, which is reversed and remanded for a review guided by N.J.S.A. 2A:34-23, we affirm the Family Part order dated August 20, 2009, in all other respects.

Affirmed in part and reversed and remanded in part.

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