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Kim Nitz v. Sean Fitzpatrick

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 21, 2011

KIM NITZ, PLAINTIFF-APPELLANT,
v.
SEAN FITZPATRICK, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-237-01.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 8, 2010

Before Judges Ashrafi and Nugent.

Plaintiff Kim Nitz appeals the Family Part's order of February 17, 2010, entered after a post-divorce plenary hearing on defendant Sean Fitzpatrick's motion to modify his child support obligations. The parties' twin sons, Sean and Liam, were nineteen years old at the time of the hearing. Sean had enlisted in the United States Army, and Liam had started college. The court ordered Sean emancipated and terminated child support for him as of October 4, 2009. It also ordered resumption of arrears payments by Fitzpatrick following a short period of unemployment.

Nitz appeals only those provisions of the February 17, 2010 order that reduced Fitzpatrick's child support obligation for Liam to $120 per week and that allocated Liam's net college expenses 50% to Liam and the remaining 50% to be split 52% to Nitz and 48% to Fitzpatrick. Nitz seeks an increase in child support to at least $150 per week and an increase in Fitzpatrick's college contribution to at least one-third of the net expenses. In addition, she seeks reimbursement of her attorney's fees totaling almost $14,000.

Having reviewed the parties' pro se briefs, the record of the proceedings, and documents entered in evidence, we affirm the child support order as within the discretionary authority of the Family Part, but we remand to the Family Part for clarification or reconsideration of Fitzpatrick's obligation to contribute to Liam's college expenses, and to consider any renewed application by Nitz for attorney's fees.

I

The parties were married in 1985 and divorced in 2001. Their only children are the twin boys, born in January 1991.

The boys have resided with Nitz since the divorce. Fitzpatrick has remarried and has a third son.

At the time of the divorce, the parties entered into a marital settlement agreement requiring payment of limited duration alimony to Nitz through 2016 and fixing the amount of child support for the boys. The parties have returned to the court several times to litigate disputes about support payments and arrears.

In September 2009, Fitzpatrick filed a motion requesting emancipation of and termination of child support for Sean; reduction of child support for Liam, who was starting his freshman year at the University of Tampa; recalculation of the relative child support obligations of the parties because Fitzpatrick had lost his job and now had another dependent to support; and temporary suspension during his unemployment of prior orders requiring that he pay $500 per month toward arrears. The Family Part scheduled a plenary hearing and entered a pendente lite order on October 29, 2009, declaring Sean emancipated and terminating child support for him, modifying the child support for Liam to $194 per week based on potential income of $108,000 per year attributed to Fitzpatrick, and temporarily suspending the arrears payments.

The plenary hearing was held on February 2, 2010. The only witnesses were the two parties. Nitz was represented by counsel; Fitzpatrick appeared pro se.*fn1 In considering Fitzpatrick's motion, the court found it necessary to address allocation of college expenses for Liam because it would affect its order on child support.

At the hearing, Fitzpatrick testified that he lost his job in June 2009 and did not have sufficient funds to pay alimony of $1,000 per month, child support of $194 per week, college expenses for Liam, and the expenses of his new family. He acknowledged that he had received severance pay equal to eight weeks' salary, that he had received unemployment compensation, and that he had obtained new employment beginning in December 2009 at an annual salary of $73,300, which was a substantial reduction of his income.

Fitzpatrick testified that he had not been consulted about Liam's selection of the University of Tampa, and that he had attempted to direct Liam to less expensive schools. He claimed that Liam was entitled to payments from an annuity fund, and that he had also received the proceeds of a college fund established by Fitzpatrick's parents in the amount of $4,375.95 as shown on a 1099 tax form.

Nitz testified that Fitzpatrick was fully aware that Liam was applying to the University of Tampa. She entered in evidence emails exchanged between father and son showing that Fitzpatrick offered to visit that college with Liam the previous spring. She testified that the total expenses at the University of Tampa for Liam's freshman year were approximately $33,000, and Liam had obtained financial aid of $18,000, leaving a balance of about $15,000 to be paid by the family. Nitz had co-signed a Sallie Mae loan with Liam for the principal sum of $14,398.98, toward which she personally made monthly payments. According to the Sallie Mae payment schedule, a total of $11,620.59 in interest would be payable over the twelve-year term of the loan, making a total of $26,019.57 in principal and interest to be paid over time.

Nitz testified that Liam worked part-time while at college, thus receiving an income for his personal expenses. She acknowledged that he had received on his eighteenth birthday a payment of $3,500 from an annuity established when he was a child as settlement of a personal injury claim. The two remaining payments of the annuity were to be $5,000 on Liam's twenty-first birthday and $7,285 when he turned twenty-five. She said she had no knowledge of Liam receiving the proceeds of the college fund established by Fitzpatrick's parents. Nitz testified further that Liam still resided much of the year in her home, and she needed continuing child support to maintain the home and to help pay Liam's expenses.

The judge of the Family Part issued a written decision by which he found that Fitzpatrick's gross income was $73,300 and Nitz's income $55,000. After adjustment for alimony, the comparative incomes were $61,300 for him and $67,000 for her, which translates to about 48% for him and 52% for her of the total gross income of both parents. The court concluded that Liam should be responsible for 50% of the net $15,000 in college expenses because he had received the grandparents' college fund and had the ability to earn income through part-time and summer jobs. The parents were to pay the balance of the net college expenses in accordance with their relative percentages of income. This calculation meant that Fitzpatrick would pay $3,600 toward Liam's freshman year expenses.

In determining child support, the court accepted Fitzpatrick's contention that he could not pay more than $200 per week toward both child support and college expenses for Liam. It concluded that $150 per week in child support was appropriate, but it reduced that figure to $120 per week because some of Liam's expenses would be covered by Fitzpatrick's contribution toward college expenses. The court ordered Fitzpatrick to pay his share of college expenses at the rate of $75 per week, making Fitzpatrick's total support obligation for Liam $195 per week. Also, the court reinstated the requirement that Fitzpatrick pay $500 per month for arrears.

II

Nitz contends Fitzpatrick should pay more child support because Liam still lives with her during most of the year, including breaks, vacations and summers. She argues that she needs at least $150 per week in child support to maintain her home and to pay Liam's expenses while he is not away at college. She argues the court improperly reduced child support because of Fitzpatrick's obligations to his second family and temporary unemployment. In her appellate brief, she recites a lengthy history of arrears and resistance by Fitzpatrick in meeting his support obligations to his sons.*fn2

When, as in this case, an order for child support is not controlled by the Child Support Guidelines, see Pressler & Verniero Current N.J. Court Rules, Appendix IX-A to Rule 5:6A at 2447 (2011), the trial court has discretion to determine the amount by flexibly applying the factors listed in N.J.S.A. 2A:34-23a. See Pascale v. Pascale, 140 N.J. 583, 594 (1995). "If consistent with the law, such an award 'will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice.'" Foust v. Glaser, 340 N.J. Super. 312, 315-16 (App. Div. 2001) (quoting Raynor v. Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999)).

The findings of Family Part judges are "binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.

In this case, the Family Part judge considered the current case information statements of the parties and Fitzpatrick's bank statements. See Zazzo v. Zazzo, 245 N.J. Super. 124, 128-29 (App. Div. 1990), certif. denied, 126 N.J. 321 (1991); R. 5:5-2. The court relied on documented income information that the parties provided. It took into account current living expenses of each party and the factors listed in N.J.S.A. 2A:34-23(a). We find no abuse of discretion in the court's reliance on the evidence that was presented.

Nitz argues that the court failed to enforce her notice in lieu of subpoena demanding that Fitzpatrick produce at the hearing documents to establish his income and expenses. The transcript of the hearing, however, contains no application to enforce her notice in lieu of subpoena and to compel production of documents. Generally, issues not raised in the trial court will not be considered on appeal unless they affect the jurisdiction of the trial court or concern matters of substantial public interest. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Because enforcement of the notice in lieu of subpoena was not raised in the trial court, we will not consider it on appeal.

We recognize that the total amount of child support and contribution toward college expenses ordered by the court was less than Fitzpatrick was paying as child support for Liam before he began college. Usually, supporting a child attending college increases, not decreases, a parent's financial obligation. Nevertheless, having reviewed the record, we conclude that the trial court did not abuse its discretionary authority in the amount of child support ordered.

III

Concerning Liam's first-year college expenses, the trial court considered the factors listed in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982). It correctly rejected Fitzpatrick's request to be relieved of responsibility for Liam's college expenses because he was not consulted about the University of Tampa and because that college is unreasonably expensive. See Gac v. Gac, 186 N.J. 535, 539-40 (2006). Not only did the evidence prove Fitzpatrick was consulted, but Liam's net college expenses were significantly reduced through financial aid and were thus consistent with many less expensive options.

Nitz argues the court erred in refusing to divide college expenses into three equal shares among Liam, Nitz, and Fitzpatrick. Because the total payments on the Sallie Mae loan will be $26,019.57, not the $15,000 net college expenses that the court took into consideration, Nitz argues that Fitzpatrick's contribution for Liam's freshman year should be $8,675 (about 1/3 of $26,019.57), or alternatively $6,250 (about 24% of $26,019.57).

We disagree with Nitz that the figure to be allocated should be the full $26,019.57 over the life of the Sallie Mae loan; that amount is not yet due and payable. The court appropriately began its calculation of the parties' responsibility for college expenses with the $15,000 net figure. As we will discuss, however, the court may have deviated from the apparent objective of its allocation order by allowing one party, Fitzpatrick, to pay his share of those expenses over an entire year without adequate consideration of the additional expense to Nitz and Liam in paying their shares in a lump sum when due to the college.

Also, the percentage allocations of college expenses among Liam, Nitz, and Fitzpatrick were within the court's discretion to determine based on credible evidence in the record.*fn3 Liam had resources to share in the payment of his college expenses. Upon turning eighteen, he had received an annuity payment of $3,500, and the court found that he also received the grandparents' college savings fund of $4,375.95.

Although we reject Nitz's argument as presented, we see irregularities in the court's decision and order pertaining to Fitzpatrick's contribution for college expenses. The court's February 17, 2010 order states:

[Fitzpatrick] shall contribute 48% of the college costs for Liam, after grants and scholarships, of $3600 for the school year 2009-2010 at the rate of $75 per week. The $75 per week shall be added to the $120 per week in child support for a total of $195 per week until a total of $3600 has been collected for college costs for 2009-2010.

The court's written decision of the same date also states the same figures but then adds ambiguously:

At $75 per week [Fitzpatrick] would pay $3900 during a calendar year (52 X $75). Any shortfall will accrue until Liam is emancipated at which time [Fitzpatrick] will continue to pay for college costs until his obligation is paid in full.

Because the total of weekly payments would exceed the $3,600 allocated to Fitzpatrick, we cannot tell what the court meant by "shortfall" that would accrue and be payable after Liam's emancipation.

At oral argument before us, Fitzpatrick was asked whether it was equitable for him to pay a substantially reduced amount of child support and only 11% of his son's total college expenses ($3,600 - $33,000 = 10.9%). He responded that his share was more than 11% because he understood his obligation to be $7,200 for Liam's first-year expenses, payable over time because of his reduced income and greater expenses. Similarly in his brief, Fitzpatrick stated that he was to pay $7,200 for Liam's first year of college. The reason for the inconsistency between the court's order and Fitzpatrick's understanding may be the court's designation of his share as 48% of 50%. If 48% is taken of the full net expenses of $15,000, the resulting figure is $7,200. In these circumstances, the trial court must clarify Fitzpatrick's obligation for college expenses and also indicate what it meant by the reference to a "shortfall."

The Family Part should also reconsider whether the weekly payment it allowed for Fitzpatrick is consistent with the percentage allocation it intended to impose upon him. In allowing Fitzpatrick to pay his share over time, the court did not take into consideration that Nitz and Liam also did not have funds available to pay their shares to the University of Tampa but were required to take a loan for the balance of the net expenses. By failing to allocate the interest expense for the Sallie Mae loan during the time that Fitzpatrick was required to pay his share, the court effectively increased the percentage payable by Nitz and reduced Fitzpatrick's effective percentage share.

On remand, the court may consider whether Nitz is entitled to reimbursement for some of the interest she has paid on the Sallie Mae loan during the time of Fitzpatrick's payments to her.*fn4

IV

Finally, Nitz argues she should be reimbursed for legal fees totaling $12,497.29, plus $1,500 retainer. She argues that she has in the past been required to pursue arrears from Fitzpatrick and to seek enforcement of court orders through further litigation. Fitzpatrick responds that he was the prevailing party in these proceedings and should not have to pay Nitz's attorney's fees.

"[T]he award of counsel fees and costs in a matrimonial action rests in the discretion of the trial court." Guglielmo v. Guglielmo, 253 N.J. Super. 531, 544-45 (App. Div. 1992); see also Gotlib v. Gotlib, 399 N.J. Super. 295, 314-15 (App. Div. 2008) (application of R. 5:3-5(c) and decision to award counsel fees rests within the court's sound discretion); Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004) (allowance for attorney's fees and costs remains discretionary). "Success is . . . not a prerequisite for an award of counsel fees." Guglielmo, supra, 253 N.J. Super. at 545.

Here, the trial court did not address attorney's fees in its written decision or order, but we also do not have an explicit application in the Family Part record for attorney's fees. The record only shows that, approximately one month before the plenary hearing, counsel for Nitz submitted to the court and Fitzpatrick a certification listing his rates and services. We have found no specific request for attorney's fees at the plenary hearing. Thus, the court did not err in omitting a ruling on attorney's fees from its decision. Nevertheless, accepting the pre-hearing filing by Nitz's attorney as a request for attorney's fees, the Family Part should consider on remand any renewed application for attorney's fees.

V

We affirm the court's child support order of February 17, 2010, but remand for clarification and reconsideration of contributions for Liam's first-year college expenses and any renewed application for attorney's fees. We do not retain jurisdiction.


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