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Kenneth Schaefer v. Theresa Kamery F/K/A Theresa Schaefer


December 9, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, FM-18-718-06.

Per curiam.


Argued October 25, 2011

Before Judges Reisner and Hayden.

In this post-judgment matrimonial matter, defendant Theresa Kamery (formerly Theresa Schaefer) appeals from a January 31, 2011 order of the Family Part. We affirm.


Defendant and her then-husband, plaintiff Kenneth Schaefer, were divorced in 2007. They have two sons.*fn1 Because Theresa earned more than twice as much as Kenneth, the property settlement agreement (PSA) required her to pay Kenneth limited term alimony. Although the parties shared joint legal custody, the PSA provided that the children would reside with Theresa and required Kenneth to pay Theresa child support for both sons.

In January 2008, the older son, who was then twenty years old and a college student, moved in with Kenneth. After a series of disagreements over child support and other economic issues, Kenneth filed a motion on May 22, 2008, seeking custody of the older son and a reduction in his support obligation. Theresa filed a cross-motion seeking reimbursement for assorted expenses including the cost of buying the younger son a car.

In a series of interim orders, the Family Part awarded Kenneth residential custody of the older son and reduced Kenneth's child support obligation from paying Theresa $235 a week for both children to paying her $195 a week solely for the younger son.

Following an unsuccessful attempt at mediation, the court held a plenary hearing to determine the issues of Theresa's child support obligation and the parties' respective claims for reimbursement of various expenses. During that hearing, the parties fought over issues ranging from Kenneth's alleged obligation to pay about $30 toward the cost of a school trip, to Theresa's alleged obligation to pay $10 to fix a tire on the older son's truck. Ultimately, as the judge noted, the parties expended about $70,000 in counsel fees in a dispute over less than $15,000.

Based on the hearing testimony, there was no dispute that in January 2008, the older son moved out of Theresa's home and into Kenneth's home. Kenneth claimed that Theresa kicked the son out; she claimed the son was disobedient and Kenneth voluntarily agreed to temporarily let the son live with him. Pursuant to the PSA, both parents were paying their respective shares of the son's college tuition, believing that he was attending a local college. In fact, without telling either parent, the son stopped attending college classes in the fall of 2008, and enlisted in the Marines.

Theresa testified that even when the older son was living with Kenneth, he spent considerable amounts of time at her house. Each parent testified that the older son repeatedly said he was attending school and concealed from each of them the fact that he had dropped out.

Although the 2007 PSA provided that the parties waived all economic claims that arose prior to the date of the PSA, Theresa presented testimony to support her claim that Kenneth owed her for various expenses from 2006. She also claimed that Kenneth should contribute to the cost of a car that she bought for the seventeen-year-old younger son, over Kenneth's objections. The PSA made no provision for such a purchase, but she argued that the parties' earlier purchase of a car for the older son set a "precedent," and that the parties had agreed, prior to the date of the PSA, that they would buy each child a vehicle.

The parties presented extensive testimony about their expense claims against each other, and about their unsuccessful efforts to mediate those claims. Each party blamed the other for the failure to settle the matter. During the hearing, Theresa apparently presented receipts and other documents to support her claims for the child-related expenses that Kenneth owed her. However, she also sought to introduce a document that she prepared, summarizing her claims. Over objections from Kenneth's attorney, the judge allowed this summary document to be introduced in evidence, reserving decision as to what weight she would give it.

Following the evidentiary hearing, Judge Julie Marino issued an order dated January 11, 2011: declaring the older son emancipated "as of October 23, 2008, the date he dropped out of school;" ordering Theresa to pay Kenneth $1276 as child support for the older son, for the period between the time the son moved in with Kenneth and the date of his emancipation; ordering Theresa to reimburse Kenneth $960 credit for his overpayment of child support during that same time period, when he was paying her support for both children but was only legally responsible to pay support for the younger son; ordering Kenneth to pay Theresa $7,720.64 for "all child related expenses up until December 31, 2009;" denying certain of Kenneth's expense claims; and denying both parties' "request for counsel fees."

In a thorough written opinion, also issued January 11, 2011, Judge Marino made findings of fact and conclusions of law and explained the reasons for her decision. Notably, she believed both parties' testimony that the older son successfully deceived them into believing that he was attending college after he had dropped out. She found that the son should be declared emancipated as of the date he dropped out of college and was earning income, thus effectively moving beyond his parents' "sphere of influence."

Because both parents believed the son was attending college, and because he was living with Kenneth, the judge found it was not equitable to require Kenneth "alone to bear the cost of supporting [the older son]" from May 22 to October 23, 2008. Although he enlisted in the Marines as of October 2008, the son did not actually report for duty until the following January. However, the judge held he was emancipated as of the earlier date.

Judge Marino noted that "[n]either party has presented the court with his/her calculation of child support for [the older son]," and Kenneth failed to "submit a budget" for the son. However "[b]ased upon the parties' Case Information Statements" (CISs) the judge determined their incomes and used the Child Support Guidelines to set Theresa's support obligation for the older son at $253 per week, and Kenneth's obligation for the younger son at $195 per week.

The judge then addressed the parties' dispute over "allocation of expenses for the children." Judge Marino held that Theresa's "claims for funds she alleges were due her for expenses in 2006 were extinguished by the entry of the PSA." She then turned to Theresa's summary of her claimed expenses and the packets of back-up documentation she submitted for those expenses. The judge addressed each claimed expense. Notably, she found no basis to require Kenneth to contribute to purchasing a car for the younger son, an expense to which he did not agree and which was not covered by the PSA. She also found that the older son needed a car to commute to college, while the younger son was away at college and was not allowed to keep a car while living on campus. She also denied a claimed $247.18 expense for "Fullerton-Truck" for lack of documentation. After reviewing all of the expense claims, she determined that Kenneth owed a total of $7720.64. Subtracting the $2236 Theresa owed him for child support, Kenneth owed Theresa the net sum of $5484.64.

Noting that the parties had spent about $70,000 in counsel fees, the court declined to award fees to either party. She held:

The reality is that both these parties took unreasonable positions in this litigation. Despite [the older son's] needing a vehicle to commute to college, Plaintiff resisted contributing to repair and/or maintenance of the vehicle. On the other hand, despite Plaintiff's failure to agree to contribute to a vehicle for [the younger son] (who did not require it to commute to college) Defendant purchased it and demanded contribution. The list could go on as to both parties.

Sadly, the total claims in this case did not exceed $15,000, yet combined the parties incurred over $70,000 in counsel fees.

The Court cannot find that only one party acted in bad faith or unreasonably and therefore each shall be responsible for his/her own fees.


On this appeal, our review of Judge Marino's decision is limited. We must defer to the trial court's findings of fact as long as they are supported by substantial credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1975). We owe particular deference to the judge's credibility determinations and to "the family courts' special jurisdiction and expertise." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Unless the trial court's factual findings are "so wide of the mark that a mistake must have been made," those findings should be not be disturbed. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007).

On this appeal, Theresa presents the following point for our consideration:


Among other things, she argues that the court erred in awarding Kenneth child support for the older son; that the judge should have required Kenneth to contribute to the cost of the younger son's vehicle; and that Kenneth unreasonably refused to settle the case and should have been required to pay Theresa's counsel fees. She also contends that the court used the wrong income figures on which to base the child support calculation, and that the court erred in awarding or not awarding various minor expense items.

Except as discussed below, all of Theresa's appellate arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated in Judge Marino's opinion. However, to address a concern expressed in Theresa's brief, we confirm that the January 11, 2011 order only applies to expenses through December 31, 2009. It does not apply to expenses incurred in 2010 and thereafter.

We next comment on the record the parties presented to us on this appeal. While we were provided with the transcripts, and a relatively few pieces of evidence from the trial record, all of which we have read, the appendices are noteworthy for what they do not contain. Apart from her self-prepared summary of expenses, Theresa's appendix does not include any back-up documentation for those claims. The parties did not provide us with copies of their CISs, although they were in evidence and the trial court relied on them in setting child support. Neither party provided Judge Marino with proposed child support calculations for either child and they have not done so on this appeal either.

We find no basis to second-guess Judge Marino's decisions on witness credibility. Based on those findings, she reasonably awarded child support to Kenneth for the time period when the older son was living with him. That son was properly emancipated when he moved beyond his parents' "sphere of influence" and enlisted in the military. Keegan v. Keegan, 326 N.J. Super. 289, 295 (App. Div. 1999); Bishop v. Bishop, 287 N.J. Super. 593, 597-98 (Ch. Div. 1995). Further, because neither party has provided us with their CISs or other proof of their actual income during the relevant time periods, we have no basis on which to disturb the judge's child support calculations.

We agree with Judge Marino that the PSA does not require Kenneth to contribute to the purchase of a car for the younger son. Nor, in the absence of record evidence, is there any basis on which to find that she erred as to the various expense items she disallowed. For example, there is no documentary evidence to support an alleged expenditure for "Fullerton-Truck." Judge Marino was not required to credit Theresa's self-prepared summary, in the absence of copies of bills, canceled checks or similar proof, none of which appears in Theresa's appendix. Likewise, in discussing the issue of school lunches, Judge Marino referred, in her opinion, to evidentiary documents that Theresa has not provided to us. Therefore, we reject Theresa's appellate contentions about those items.

Finally, we find no abuse of discretion in Judge Marino's decision not to award counsel fees to either party. See Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004). We agree that both parties behaved unreasonably, and incurred litigation expenses far in excess of the amounts in controversy.


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