March 5, 2012
AYODELE ADEYERI, PLAINTIFF-APPELLANT,
SANDRINE DESAMOURS, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1017-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 9, 2011 -
Before Judges Ashrafi and Nugent.
Plaintiff Ayodele Adeyeri appeals from that part of a post-judgment Family Part order that required him to pay a share of his daughter's education and activity expenses, and from the order that denied his motion for reconsideration. We affirm.
Plaintiff and defendant, Sandrine Desamours, were married in 1996 and divorced in 2000. Their only child, a daughter, was born in 1997. The judgment of divorce incorporated the parties' property settlement agreement (PSA), which provided, in part, that the parties would have joint legal custody of their daughter, but defendant would have residential custody. The PSA also required that plaintiff pay weekly child support of $322, and monthly payments of $150 to establish a college fund for the parties' daughter, the latter obligation to end when the payments totaled $100,000. When the parties were divorced in 2000, plaintiff was residing in New Jersey and earning $130,000 yearly; defendant was residing in Florida, earning $8,000 yearly, attending law school, and raising their daughter.
In August 2001, defendant enrolled the parties' then four-year-old daughter in the private "French Education System" in Miami, Florida. The child remains in that international system today, attending school in Tanzania. Throughout her young life, the child has participated in a variety of activities, including acting, dancing, gymnastics, piano, pottery, tennis, and swimming. She has also studied and become fluent in several languages. These activities currently cost her mother, the defendant, approximately $500 per month.
In August 2003, defendant began working with the United Nations High Commissioner for Refugees. Her position required her to move first to the Dominican Republic, then to Cameroon, and later to Tanzania, where she and her daughter have resided since 2009. In the certifications defendant submitted to the trial court, she explained that when she resided in the Dominican Republic, the local schools were substandard and the only international school was a French system school. When defendant moved to Cameroon, she enrolled her daughter in the only available French private school, other Cameroonian schools being inadequate. Finally, in Tanzania, defendant enrolled their daughter in another French private school. The only other international school was "fully enrolled" and the local schools did not offer the same quality education.
Nine years after the divorce, in June 2009, plaintiff filed a motion seeking, in part, to decrease his child support obligation. Defendant filed a cross-motion seeking various forms of relief, including an order compelling plaintiff to contribute toward their daughter's tuition, activity, and health expenses. The court denied plaintiff's motion because he did not append to it a "prior case information statement or statements filed before entry of the order or judgment sought to be modified." See R. 5:5-4(a). The court also denied defendant's motion to compel plaintiff to share in tuition, activity, and health expenses because she had failed to provide documentary proof of those expenses. Both motions were denied without prejudice.
Five months later, in November 2009, plaintiff filed a motion seeking, among other things, an order modifying his child support obligation. Defendant filed a cross-motion seeking an order compelling plaintiff to share tuition, activity, and health expenses for their daughter, and other relief. On March 8, 2010, the court entered an order denying plaintiff's motion because he again had failed to append to his motion prior case information statements. As to defendant's cross-motion, the order provided:
The Defendant's cross[-]motion to require the Plaintiff to pay for his share of the parties' child's educational and activity expenses is granted. The Defendant shall provide the Plaintiff with proof of the parties' child's educational expenses within 30 days from the date that said expenses are incurred. The Court notes that the parties'
Property Settlement Agreement is silent regarding said expenses.
On April 5, 2010, plaintiff filed a motion for reconsideration in which he requested that the court modify his child support obligation, vacate that part of the March 8, 2010 order requiring him to contribute to his daughter's education, and direct defendant to provide him with a copy of their daughter's school schedule. The court entered an order on July 7, 2010, that in the first two paragraphs appeared to deny plaintiff's motion for reconsideration because it had not been filed within twenty days as required by Rule 4:49-2. However, in a subsequent paragraph, the order stated, "Plaintiff's motion to recalculate his child support obligation to the Defendant is granted."*fn1 The court decreased plaintiff's weekly child support obligation to $213, retroactive to April 6, 2010; basing its decision primarily on plaintiff's gross annual salary, which plaintiff certified as $135,000, and defendant's June 2009 case information statement reflecting 2008 income of $124,092.
Plaintiff appeals, raising the following issues:
I. THE TRIAL COURT ERRED BY REFUSING TO VACATE A PORTION OF THE ORDER OF MARCH 8, 2010.
II. THE TRIAL COURT ERRED BY OBLIGATING FATHER TO PAY
"HIS SHARE" OF [DAUGHTER'S] EDUCATION EXPENSES WITHOUT SPECIFYING WHAT AMOUNT OF EXPENSES IT WAS APPROVING.
III. THE TRIAL COURT ERRED BY OBLIGATING FATHER TO PAY A PORTION OF [DAUGHTER'S] EDUCATION EXPENSES WITHOUT GIVING FATHER THE RIGHT TO APPROVE THE EDUCATION CHOICE AND WITHOUT HOLDING A HEARING.
Plaintiff contends in Point I that the trial court improperly considered his April 2010 motion as a motion for reconsideration under Rule 4:49-2 instead of a motion for relief from a judgment or order under Rule 4:50-1(f).
Rule 4:49-2 requires "a motion for rehearing or reconsideration seeking to alter or amend a judgment or order [to] be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it."*fn2
The twenty-day time restriction may not be enlarged: "Neither the parties nor the court may . . . enlarge the time specified by . . . [Rule] 4:49-2 . . . ."*fn3 R. 1:3-4(c). A trial court's determination of a reconsideration motion is left to the court's discretion. See Triffin v. Johnston, 359 N.J. Super. 543, 550 (App. Div. 2003); D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990).
Rule 4:50-1 authorizes a court to relieve a party from a final judgment or order for reasons such as: mistake or inadvertence, R. 4:50-1(a); certain newly discovered evidence, R. 4:50-1(b); fraud, R. 4:50-1(c); the judgment or order is void, R. 4:50-1(d); or the judgment has been satisfied, R. 4:50-1(e). Rule 4:50-1(f) is a catch-all provision that authorizes a court to relieve a party from a judgment or order for "any other reason." "No categorization can be made of the situations which would warrant redress under subsection (f). . . . [T]he very essence of (f) is its capacity for relief in exceptional situations. And in such exceptional cases its boundaries are as expansive as the need to achieve equity and justice." DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 269-270 (2009). We review a court's determination of a Rule 4:50-1(f) motion under an abuse of discretion standard. Johnson v. Johnson, 320 N.J. Super. 371, 378 (App. Div. 1999).
Plaintiff's April 2010 motion was captioned "Notice of Motion for Reconsideration." The notice of motion indicated that plaintiff would apply for an order: (1) reconsidering the March 8, 2010 order; (2) downwardly modifying the order for child support; (3) vacating the provision in the March 8, 2010 order requiring the plaintiff to contribute to current education costs; and (4) directing the defendant to provide the plaintiff with a copy of their daughter's school schedule. The notice of motion stated that in support of the motion plaintiff would rely upon "the annexed certification and exhibit(s)."
Nowhere in the notice of motion, supporting certification, or exhibits did plaintiff refer to Rule 4:50-1(f). Nowhere in his appeal brief does plaintiff suggest that he specifically asked the trial court to consider his motion under Rule 4:50-1(f).*fn4 Considering that plaintiff titled his motion as one for reconsideration, specifically asked the trial court to reconsider its previous order, and failed to inform the trial court that he was seeking relief under Rule 4:50-1, we conclude the trial court did not err by considering the motion under Rule 4:49-2 and denying it as untimely filed. Additionally, as explained below, plaintiff has not demonstrated that this is the type of exceptional case that would warrant relief under Rule 4:50-1(f).
Plaintiff argues in Point II that the trial court abused its discretion by refusing to vacate the previous order compelling him to pay "his share" of education expenses for his daughter "once it became clear that 'his share' could mean a number of different amounts." Plaintiff maintains that because the March 2010 order did not specify the amount of expenses to be allocated between the parties, it gave no guidance to the parties as to what constituted plaintiff's fair share. We disagree.
Plaintiff can readily calculate his percentage share of his daughter's education and activity expenses. Indeed, he represented in the certification supporting his reconsideration motion that his salary was $135,000 and defendant's income was $124,092; and he utilized those figures to persuade the trial court to reduce his support obligation. Plaintiff concedes the court intended his "share" to be determined in proportion to the parties' relative income.
Plaintiff does not suggest that calculating his proportionate share of the sum of his and defendant's income is a difficult or unworkable task. Rather, he maintains that the court's decision was arbitrary because it did not specify those expenses toward which he was obligated to contribute; and that such an order is contrary to the twin goals of predictability and fairness, and grants "total power to [the defendant] to determine what the education expenses will be."
Plaintiff's argument is unpersuasive. Defendant submitted a certification in opposition to plaintiff's November 2009 motion and in support of her cross-motion, in which she specified the amount of their daughter's private school tuition for the first trimester of the 2009-2010 school year. Defendant also attached to her certification documentation of the tuition. Plaintiff never disputed the amount. Plaintiff's knowledge of that amount notwithstanding, the trial court expressly ordered defendant to provide plaintiff with proof of their daughter's education expenses within twenty days "from the date that said expenses are incurred." There was no confusion about either plaintiff's percentage contribution or the amount of the expenses.
Plaintiff also contends that his daughter's education expenses may have been paid, in whole or in part, by defendant's employer. Defendant admitted in her pleadings that part of the education expenses are paid by her employer. But the court's March 2010 order explicitly requires defendant to submit for reimbursement, and for plaintiff to pay, only those education and activity expenses incurred by defendant. Under the court order, she is only entitled to be paid for unreimbursed expenses. If plaintiff has a bona fide dispute about whether an expense has been reimbursed by defendant's employer, then he may make an appropriate application to the trial court. He cannot, however, defy the court order and simply decline to pay his share of his daughter's education expenses.
In summary, based upon his and defendant's yearly income, plaintiff knows the precise proportionate share that he is required to pay toward his daughter's education. The latest tuition bill had been submitted by defendant, so the precise amount was known. Contrary to plaintiff's argument, there was nothing uncertain about either his specific percentage share of his daughter's tuition or the amount of that tuition.
Plaintiff does not argue that the court was required to approve his daughter's activity expenses before he was required to pay his proportionate share. Nor does plaintiff raise a bona fide dispute about the amount of his daughter's activity expenses.
Finally, in Point III, plaintiff argues that the trial court erred by compelling him to pay his share of his daughter's education and activity expenses without giving him the right to approve defendant's educational decision and without conducting a hearing. He argues that defendant cannot be "given unrestrained permission to spend [his] money on educational choices that may not even be best for [their daughter]."
Defendant replies that their daughter has been enrolled in the French school system since age four, and plaintiff has never questioned the need to send their daughter to private school. She asserts that since leaving the United States, there has been no reasonable alternative to educating their daughter under the French system. This is particularly so in Tanzania, where, as plaintiff himself points out, the per capita income per year is $442. Defendant maintains that plaintiff's request for a hearing is a ploy and an attempt to further delay paying child support.
Defendant's arguments have substantial support in the record. In his submissions, plaintiff concedes that he has communicated with, and has had parenting time with his daughter over the years. He never asserts that he was unaware of where his daughter was attending school, and he recognizes that defendant is "on the spot and is better able to evaluate the school she selects for [their daughter]." Notably, plaintiff never states that he disapproves of the school his daughter attends, nor at any time in the past did he disapprove of defendant's educational choices. Rather, plaintiff makes general statements about the possibility that other choices may exist.
Plaintiff does not dispute the need for his daughter to attend private school while she resides in Tanzania. Consequently, this is not a parental dispute about whether a child should attend public or private school. Though plaintiff speculates about the possibility of other educational alternatives, he has provided no facts to dispute defendant's averment that of the two international schools accessible by their daughter in Tanzania, one was unavailable when defendant enrolled their daughter in the other.
More significantly, plaintiff has not contested a single expense of which he is aware, or that has been submitted to him by defendant. He has not identified any activity expenses that he contests, and he has not disputed that the expenses being paid to educate his daughter in Tanzania are reasonable. For those reasons, we see no need to disturb the trial court's decision.
That said, if either party has any uncertainty about specific expenses to which the March 2010 order applies, then a motion may be made to the trial court to fix the amount. Additionally, if plaintiff disagrees with a decision made by defendant about the education of their daughter, he may file a motion for appropriate relief.
Defendant has filed a brief in which she not only opposes the points plaintiff raises in this appeal, but also raises points supporting the cross-motion she had filed in the trial court. Because defendant did not file a notice of cross-appeal, we do not address her arguments. See Linek v. Korbeil, 333 N.J. Super. 464, 471 (App. Div.), certif. denied, 165 N.J. 676 (2000).