On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-632-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Baxter and Koblitz.
In this post-divorce case, defendant Lorre Smith appeals from an order awarding continued child support and counsel fees to plaintiff Leslie Smith and allocating college expenses between the parties. He also appeals from an earlier order quashing his subpoena and awarding plaintiff related counselfees. Defendant contends that the trial judge erred in resolving contested issues of material fact without an evidentiary hearing. After reviewing the record in light of the contentions advanced on appeal, we affirm the judge's suppression of the subpoena and two counsel fee awards, and reverse and remand for a plenary hearing on the remaining issues concerning the calculation of child support and allocation of child-related expenses.
The parties were married in 1978, and two children were born of the marriage; Marc in 1985 and Julie in 1989. Throughout the marriage, defendant, an attorney in solo practice who handled some matrimonial matters, was the primary breadwinner for the family. Between 1998 and 2000, his practice generated an average annual gross income of approximately $405,000 and net income of approximately $230,000, with "adjusted practice income"*fn1 of approximately $270,000. Plaintiff was a school teacher who went back to work shortly before the divorce was finalized, earning approximately $40,000 the first year. In 2006, plaintiff enrolled in a three-year program to obtain a master's degree in speech therapy, which she has since completed.
In 2000, plaintiff filed for divorce. The parties placed a property settlement agreement (PSA) on the record on April 3, 2002, which the judge reduced to writing because the parties were unable to resolve the wording of the written agreement. The judge incorporated the PSA in the final judgment of divorce, entered on June 21, 2002. Neither party sought a modification of the judge's version of their agreement.
According to the terms of the PSA, after a long-term marriage of twenty-two years, plaintiff agreed to waive permanent alimony in return for a one-time payment of $50,000 plus limited duration alimony consisting of $50,000 per year for five years, followed by $35,000 per year for four additional years. The PSA further provided that plaintiff was to be the parent of primary residence for both children and that defendant would pay child support as follows:
9. Defendant shall begin to pay Plaintiff child support payments of $15,000.00 per year . . . until each child completes his or her post high school education . . . . The child support shall be revised per the guidelines when each child enters college or is emancipated. Additionally, the Defendant shall pay one half of the children's summer programs, camp, sports clinics and lessons, riding lessons, horse shows and horse expenses, etc., up to the sum of $3,750.00 per child representing one-half up to $15,000.00 of recreational expenses, starting on April 5, 2002. When Marc starts college, the amount that the Defendant shall pay will be adjusted to the sum of $2,500.00 representing one-half up to $10,000.00 of previously described expenses. [Emphasis added.]
The PSA also addressed anticipated college expenses as follows:
10. The parties agree that their children's college tuition, room, board, books, fees, computer, transportation, [and] application fees shall be paid from the children's trust funds held by the Defendant as the Trustee to be prorated over the remaining number of semesters for said child. . . . The balance due and owing shall be paid by the parties on a prorated basis to their respective income plus or minus any support payments to the other party for the prior year. The Defendant's income from his business shall be the total amount of the income on his Schedule C [tax form], the pension deductions, if any, and the sum of $5,000.00 for his "perks." [Emphasis added.]
The parties specified that the limited duration alimony payments were "tax-deductible to" defendant and "tax-reportable to" plaintiff.
In the fall of 2004, Marc began attending Fairleigh Dickinson University (FDU). In December 2004, plaintiff retained her prior divorce attorney to address what she believed to be defendant's failure to comply with the terms of the parties' divorce agreement. In a 2004 letter to defendant, plaintiff's counsel discussed defendant's obligations regarding the allocation of Marc's college expenses as follows:
Allocation of college tuition and costs required you to supply copies of your  income tax return Schedule-C. . . .
Based on your alleged Schedule-C Income of $197,668 [of net profit], $5,000 for PERKS and $35,000 of retirement contributions less $50,000 of alimony and $15,000 of child support leaves $172,668 versus Leslie's $41,587 of salary, $50,000 of alimony, $5,000 of child support and $4,338.00 of unemployment for a total of $110,925.*fn2 This means you would be liable for 61% and Leslie 39%. However, until the complete Schedule-C or business return is produced, we cannot be sure that you have continued to operate your business in the same fashion as pre-divorce.
In the spring of 2007, Marc was twenty-one years old and residing in an apartment rented on a yearly basis during his junior year at University of Central Florida (UCF), having transferred there from FDU at the beginning of the school year. Julie was seventeen years old and about to graduate from high school. She planned to attend the University of Vermont (UV) in August 2007.
In May 2007, plaintiff filed a motion requesting an increase in child support in accordance with the income of the parties, an extension of the duration of defendant's $50,000 alimony obligation, reimbursement of $4800 in recreational expenses, copies of the children's trust account statements and copies of defendant's tax returns for 2004, 2005 and 2006.
Defendant cross-moved seeking the elimination of his obligation to pay child support to plaintiff based upon the children's residence at out-of-state colleges, his maintenance of rooms for them at his home, and plaintiff's having "failed miserably" as the parent of primary residence. He also argued that, as both children would be living at college, the Child Support Guidelines (Guidelines) were wholly inapplicable. Defendant further sought reimbursement from plaintiff of $10,511 in college and other child-related expenses.
A second judge signed two orders in October 2007, denying plaintiff's request for an extension of her $50,000 per year alimony and directing plaintiff to pay an unspecified "share" of college expenses for Marc for 2004 through 2007. The judge further directed defendant to pay plaintiff slightly increased child support of $15,860 per year, or $305 per week, based on attached Guideline calculations.
In an attached statement of reasons, the judge explained her rationale for increasing defendant's child ...