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Rucker v. Rucker

Superior Court of New Jersey, Appellate Division

June 21, 2013

KAREN LEVINE RUCKER, Plaintiff-Appellant,
v.
BRIAN RUCKER, Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 22, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-1031-97.

Karen Levine Rucker, appellant pro se.

J. Patrick McShane, III, argued the cause for respondent (Forkin, McShane, Manos & Rotz, attorneys; Mr. McShane, on the brief).

Before Judges Graves and Guadagno.

PER CURIAM

Plaintiff Karen Levine Rucker and defendant Brian Rucker were married in 1984 and divorced in 1999. Two children were born of the marriage: Miriam, born in 1989, graduated from Rutgers University in Camden in June 2012; and Elana, born in 1993, is currently enrolled at Rutgers University in New Brunswick. Plaintiff appeals from two post-judgment matrimonial orders. The first, dated January 6, 2012, determined the parties' obligations for their children's college costs. The second, dated February 24, 2012, denied plaintiff's motion for reconsideration and granted portions of defendant's cross-motion for reconsideration. For the reasons that follow, we affirm both orders.

This is the third appeal involving these parties.[1]Following the second appeal, the parties entered into a consent order on March 7, 2005. Pursuant to the consent order, defendant paid plaintiff "the sum of $50, 000 . . . to resolve all equitable distribution, child support or counsel fee issues raised on appeal or otherwise." The order constituted a "final resolution of financial issues except for child support." However, the consent order did not address college costs.

In December 2011, plaintiff filed a motion to "compel defendant to pay for college costs." At that time, Miriam was a senior at Rutgers University in Camden, and Elana was also attending Rutgers University in Camden, but planned to transfer to Rutgers in New Brunswick and live on campus.

Plaintiff's case information statement (CIS), submitted in support of her motion, stated she earned approximately $96, 119 in 2010 and had a net worth of $518, 379.75. According to defendant's CIS, dated December 26, 2011, he earned approximately $107, 000 in 2010 and had a net worth of $642, 631. The parties appeared pro se at oral argument on January 6, 2012, and plaintiff stated her salary was $87, 000 and it would increase to $90, 000 "sometime in January." However, her pay statement for the period ending November 18, 2011, showed year-to-date gross wages of $95, 408.36. Defendant stated his current salary was "approximately $109, 000" per year. His pay statement for the period ending December 3, 2011, showed a year-to-date salary of $119, 238. But defendant explained his relocation from Washington D.C. to Georgia resulted in a salary reduction because of a "locality difference."

Following oral argument, the court ordered the parties to share the costs of tuition, room and board, "based upon the percentages of their incomes, 46% for plaintiff (using $90, 000 annually) and 54% for defendant (using $109, 000 annually)." The court stated:

[W]e have to address the issue of contribution for college education. And, for purposes of computing . . . the income of the parties, the income of the plaintiff . . . is somewhat inflated as a result of overtime. And . . . she has indicated she does not anticipate that she is going to receive that type of overtime opportunities going forward.
She testified that her base salary is $87, 000 and she, candidly, anticipates a three percent raise pursuant to contract, which would place her yearly salary at $90, 000.
[W]e have a pay stub submitted by . . . Mr. Rucker, and, again, the court does not find it hard to believe that the cost of living allowance afforded in the Washington, D.C. area is much higher . . . than that in Georgia. And, although the computations contained in the court's tentative [decision] suggest that based on year-to-date [salary] he would be making in the neighborhood . . . of $120, 000, the Court is going to utilize . . . his stated yearly income based upon his position presently in Georgia at $109, 000.

Both parties sought reconsideration of the order entered on January 6, 2012. Plaintiff alleged the court erred by failing to consider defendant's assets when allocating college costs. On the other hand, defendant asked the court to identify the expenses that qualified as college costs and to require the children to contribute to their college expenses.

During oral argument on February 24, 2012, plaintiff asked for a "full accounting of the inheritance received by defendant" after his mother died in 1997. The court rejected plaintiff's request, because the March 7, 2006 consent order resolved all outstanding financial issues.

Plaintiff additionally argued defendant was "not truthful in completing his CIS." However, the court did not agree:

Both parties have submitted case information statements [including] attachments related to employment and have listed assets and liabilities, and plaintiff has failed to establish that the content of the defendant's case information statement is inaccurate or misrepresents his financial status.
The court further finds as a fact that the yearly gross income of defendant is $109, 000 based on his employment with the Federal Government, and the gross annual income of the plaintiff is $90, 000 from her employment as a [special education] teacher in the employ of a Pennsylvania school system, period.
Further, the court finds as a fact that there is not a great disparity in the income and present assets of the parties for purposes of calculating child support (non-guidelines) for college contribution.

Regarding extracurricular college activities, the court ordered the parties to "confer to determine whether or not the costs should be incurred. In the event the parties cannot agree, the child shall not participate in the extracurricular activity unless the financial obligation is borne solely by the requesting party." The court granted defendant's cross-motion in part and outlined the following payment schedule for college costs:

a. It shall be the obligation of the children to apply for all available scholarship and grants. In addition, children shall be required to apply for work study programs if available through the institution. Children's obligation to seek available scholarships, grants and work study shall be effective college semesters commencing September 2012. Plaintiff or children shall provide defendant with all applications made for scholarships, grants and/or work studies and results of same.
b. Any scholarships, grants, or work studies received by the children shall be provided within 14 days to defendant. In addition, each child shall be required to make contribution in the amount of $750.00 per year to their cost of college education.
c. Funds in the parents' possession designated for the children's education per prior court orders shall be applied to college costs until exhausted.
d. Any remaining costs shall be paid for by the parties with the share to be proportional to their incomes and assets in the amount of 46% by plaintiff and 54% by defendant. The court has considered plaintiff's application to reassess the financial resources available to defendant under Newburgh v. Arrigo, [88 N.J. 529, 545 (1982)] and confirms the percentage as set forth above.

On appeal, plaintiff raises three arguments. First, defendant's cross-motion for reconsideration "was untimely and should not have been considered by the court." Second, "the items raised by defendant's cross-motion for reconsideration that were not addressed in the December 2011 motion should not have been considered by the court." Third, "the court erred by not requiring an evidentiary hearing" to determine the value of defendant's assets. We do not agree.

The scope of our review is limited. "[F]indings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, we accord special deference to the family court because of its "special jurisdiction and expertise in family matters." Id. at 413. However, the "trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

With regard to plaintiff's first two points, Rule 5:5-4(c) provides that any cross-motions "shall be served and filed not later than 15 days before the return date. For example, a response must be served and filed on a Thursday for a motion date falling on a Friday 15 days later." Plaintiff's motion for reconsideration was filed on Thursday, January 19, 2012, defendant's cross-motion was filed on Thursday, February 9, 2012, and the court considered both matters on Friday, February 24, 2012. Thus, defendant's cross-motion for reconsideration was timely filed. Moreover, it was not unreasonable for the trial court to allow the parties "an opportunity to address their matters" and resolve all related issues in a single hearing See Mitchell v Oksienik 380 N.J.Super. 119 131 (App Div 2005) ("As a matter of judicial economy all issues between the parties should be resolved in the matter at hand as long as actual notice is provided as to the specific relief sought")

In her third point plaintiff argues the court should have held an evidentiary hearing to determine "the exact amount and nature of defendant's assets" This argument has no merit R 2:11-3(e)(1)(E) As the trial court correctly concluded plaintiff failed to establish that defendant misrepresented his financial status

Affirmed


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