July 15, 2013
MARI LYNN DOBBERFUHL, Plaintiff-Respondent,
MARCUS DOBBERFUHL, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 23, 2013.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-00307-09.
Stanley L. Bergman, Jr. argued the cause for appellant.
Lisa M. Radell argued the cause for respondent.
Before Judges Lihotz and Kennedy.
Defendant appeals from a Family Part order requiring him to contribute to the college expenses of his youngest daughter and to "bring current his one-half share of [her] college tuition" within sixty days. Defendant argues that the judge erred by deciding the motion without affording the parties oral argument or a plenary hearing on "factual disputes" raised in their "conflicting certifications." Defendant also argues that the judge failed to make "appropriate findings of fact" and erred in awarding counsel fees. Having considered these arguments in light of the record and applicable law, we affirm.
We discern the following facts and procedural history from the record on appeal.
Plaintiff and defendant were married on September 30, 1984, and two daughters were born of the marriage: the first in 1986, and the second in 1992. The marriage was dissolved by a judgment of divorce entered on December 29, 2009. The judgment incorporated the terms of a matrimonial settlement agreement (MSA) the parties had earlier negotiated and executed.
The MSA stated that the parties intended their agreement "to resolve all issues of asset exemption, asset division and liability, . . . parenting and child support issues . . ., issues of spousal support and all other matters relating to the rights, obligations, responsibilities or entitlements which arise from the marital relationship." Both parties waived all claims for alimony and acknowledged that plaintiff earned approximately $59, 400 per year and defendant earned approximately $37, 500 per year at the time of the judgment of divorce.
Further, the MSA acknowledged that the older daughter resided with defendant and the younger daughter resided with plaintiff, and that "neither [party] shall pay child support to the other." Nonetheless, the MSA stated that within eighteen months the older daughter "is going to be emancipated" because she will no longer be a full-time college student, and that such emancipation would constitute a "substantial change in circumstances" under Lepis v. Lepis, 83 N.J. 139 (1980), obligating the parties to "recalculate child support" for the younger daughter.
Moreover, in paragraph 4.5 the MSA addressed "post high school education" expenses of the children, stating:
Notwithstanding any actions by the New Jersey Assembly and/or Senate modifying a parent's obligation to contribute to the college education of his/her children, the parties adopt the factors contained in Newburgh v. Arrigo, 88 N.J. 529 (1982), in evaluating a claim for contribution toward the cost of the higher education of the minor children of the marriage. The parties acknowledge that neither of them have significant financial means to send either daughter to a private university without the daughter receiving substantial grants, scholarships and/or loans. They agree to split the uncovered expenses equally if they are able to do so.
The older daughter had attended a private college in South Carolina starting in 2005 and was emancipated in June 2011.
In August 2010, the younger daughter began attending a private college in Connecticut, for which she was awarded substantial grants and loans. Nonetheless, her uncovered tuition and room and board expenses in her freshman year were $15, 528 and increased to $21, 386 in her sophomore year, for a total of $36, 914. Defendant paid only $7000 toward such uncovered costs, and plaintiff paid the balance.
After plaintiff repeatedly and unsuccessfully sought to convince defendant to reimburse her for one-half the uncovered balance for tuition, room and board at the college,  and to accept his obligation to pay one-half of those costs in the future, plaintiff filed a post-judgment motion to compel defendant to contribute to the younger daughter's college costs and expenses, to "bring current his one-half share" of those costs and for other relief. Plaintiff supported the motion with a lengthy certification to which she attached various tuition bills, and scholarship and loan statements for the younger daughter's college.
Plaintiff also stated that she earned $70, 500 as a teacher in 2011, of which $14, 400 was received as a temporary tutor for a home-bound student, and she estimated her 2012 income to be $55, 000. She added that defendant earned $60, 000 as a supervisor for an Atlantic City casino, and an unknown amount as a part-time employee at a Pennsylvania casino.
Defendant responded with a cross-motion seeking "bills and an accounting" for the younger daughter's college expenses, and an order requiring plaintiff to utilize a college savings account the parties had earlier established for the child. In his supporting certification, defendant stated he earned $73, 000 in 2011 and claimed he could only afford to pay $5000 each year for the younger daughter's college costs, and, in fact, had agreed to pay that sum each year. He added that the MSA explicitly conditioned the obligation of the parties to contribute to college costs on their "ability to pay" and acknowledged that neither party had the means to afford a private university without "substantial grants, scholarships and/or loans." Defendant also took issue with entries for expenses in plaintiff's Case Information Statement.
In a later reply certification, defendant claimed his monthly expenses exceeded $6000, and again challenged plaintiff's claimed living expenses. Shortly thereafter, the motion judge issue a letter opinion in which he concluded that the MSA incorporated into the divorce judgment "clearly contemplates an equal contribution" to college expenses "assuming [they are] reasonable." He also found that "defendant concedes a responsibility of $5, 000 per year" for those expenses and explained the issue is whether defendant should be compelled to pay half of those costs "net of grants and loans."
The judge also found that defendant had been "involved in the college selection process" and implicitly approved the younger daughter's college selection and that "a simple reading of the [MSA] as well as an application of the Newburgh factors compels" the conclusion that defendant is able and obligated to pay half the uncovered costs and expenses of the younger daughter's college education. He added that any funds in the college savings account for the younger daughter must be applied to her costs and expenses for her junior and senior years in college, and the parties "will thereafter split the [net] costs of the college equally."
The judge concluded that "given the parties['] past practice with regard to their older daughter, and given each of the parties' income and income history, the requested contribution is clearly within both the spirit and letter of the agreement." Because the judge also granted defendant's cross-motion, in part, requiring plaintiff to utilize the college savings account to pay the child's tuition and expenses, he only required defendant to pay half the fees sought by plaintiff. This appeal followed.
As noted earlier, defendant argues that the judge erred in not hearing oral argument on the motions, and in not convening a plenary hearing to determine "factual disputes raised in the conflicting certifications" regarding the "purpose" of paragraph 4.5 of the MSA and the actual college costs of the younger daughter. Further, defendant argues that the judge did not make "appropriate findings of fact" and erred in awarding counsel fees to plaintiff.
We turn to defendant's first contention, that the judge improperly denied his request for oral argument. Defendant contends that oral argument should have been granted so that he could have fully argued his contentions pertaining to the purpose of the MSA, and to also clarify his request for documentary evidence of the college costs. Plaintiff argues that the trial judge did not abuse his discretion because the record was sufficient to decide the issues.
Rule 5:5-4(a) states:
Motions in family actions shall be governed by R. 1:6-2(b) except that, in exercising its discretion as to the mode and scheduling of disposition of motions, the court shall ordinarily grant requests for oral argument on substantive and non-routine discovery motions and ordinarily deny requests for oral argument on calendar and routine discovery motions.
This rule has been interpreted as "mandating argument when significant substantive issues are raised and argument is requested." Mackowski v. Mackowski, 317 N.J.Super. 8, 14 (App. Div. 1998). "The denial of such argument deprives litigants of an opportunity to present their case fully to a court." Ibid. "However, the Rule still permits a trial court to exercise its discretion to deny such requests, even in cases involving 'substantive' issues." Palombi v. Palombi, 414 N.J.Super. 274, 285 (App. Div. 2010). The intention of this rule
is to give the trial judge the option of dispensing with oral argument . . . when no evidence beyond the motion papers themselves and whatever else is already in the record is necessary to a decision. In short, it is the sole purpose of this rule to dispense with what is regarded as unnecessary or unproductive advocacy.
[Fusco v. Fusco, 186 N.J.Super. 321, 328-29 (App. Div. 1982).]
"Advocacy does not become necessary or productive simply because the parties disagree as to facts, however minor." Palombi, supra, 414 N.J.Super. at 285.
While not absolute, oral argument is normally granted where substantive issues are involved. Requests for oral argument on a substantive issue may be denied if the motion is frivolous, repetitive, unsubstantiated or intended to harass. Kozak v. Kozak, 280 N.J.Super. 272, 275-77 (Ch. Div. 1994), certif. denied, 157 N.J. 73 (1997). We have found that oral argument should have been granted on such substantive issues as emancipation of the parties' children, Filippone v. Lee, 304 N.J.Super. 301, 306 (App. Div. 1997), and change of custody, Mackowski, supra, 317 N.J.Super. at 14.
Here, plaintiff's motion and defendant's cross-motion presented substantive issues on which oral argument should normally be granted. Our decision to affirm should not be interpreted as condoning a departure from that general rule. However, we conclude that any error by the judge in denying oral argument was harmless, under the particular facts and circumstances presented.
While there were some factual disputes in the parties' opposing certifications, defendant's certifications were largely argumentative and pertained to the "intent" underlying paragraph 4.5 of the MSA. As we shall note later in this opinion, however, the intent of the parties to an integrated document must be drawn in the first instance from the language in the document itself. Here, the language was clear and unambiguous and the intent of the parties was explicitly set forth in the MSA. Having ourselves had the opportunity to engage counsel for the parties at oral argument, and for the reasons set forth above, we find no prejudice to defendant by the judge's failure to allow the parties to orally present arguments fully set forth in their certifications.
Next, defendant challenges the judge's failure to hold a plenary hearing on the "factual disputes" pertaining to the intent of the parties in including paragraph 4.5 in the MSA and the actual college expenses of the younger daughter. Defendant argues that the judge should have held a plenary hearing on the issue of the intent underlying the MSA; whether the younger daughter's attendance at a private college was "reasonable[;]" and whether the parties agreed to limit defendant's obligation to pay college expenses for the younger daughter to $5000 per year.
Before addressing this issue, we set forth some principles that guide our analysis. We have held that "not every factual dispute that arises in the context of matrimonial proceedings triggers the need for a plenary hearing." Harrington v. Harrington, 281 N.J.Super. 39, 47 (App. Div.) (citing Adler v. Adler, 229 N.J.Super. 496, 500 (App. Div. 1988)), certif. denied, 142 N.J. 455 (1995). Where material facts are disputed or depend on credibility evaluations, a plenary hearing is required. Tancredi v. Tancredi, 101 N.J.Super. 259, 262 (App. Div. 1968); see also Scott v. Salerno, 297 N.J.Super. 437, 452 (App. Div.), certif. denied, 149 N.J. 409 (1997).
"[W]here the need for a plenary hearing is not . . . obvious, the threshold issue is whether the movant has made a prima facie showing that a plenary hearing is necessary." Hand v. Hand, 391 N.J.Super. 102, 106 (App. Div. 2007). This rule was crafted with an eye to judicial economy, given that "practically every dispute in the matrimonial motion practice involves a factual dispute of some nature." Klipstein v. Zalewski, 230 N.J.Super. 567, 576 (Ch. Div. 1988). "An inflexible rule requiring a plenary hearing" on every matrimonial application "would impede the sound administration of justice, impose an intolerable burden upon our trial judges, and place an undue financial burden upon the litigants." Shaw v. Shaw, 138 N.J.Super. 436, 440 (App. Div. 1976).
In addition, the need for a plenary hearing necessarily depends on the type of issue presented. The interpretation of a contract ordinarily "is a matter of law for the court subject to de novo review." Fastenberg v. Prudential Ins. Co., 309 N.J.Super. 415, 420 (App. Div. 1998). Matrimonial agreements are contractual in nature. Petersen v. Petersen, 85 N.J. 638, 642 (1981); Harrington, supra, 281 N.J.Super. at 46. "The law grants particular leniency to agreements made in the domestic arena, and likewise allows judges greater discretion when interpreting such agreements." Guglielmo v. Guglielmo, 253 N.J.Super. 531, 542 (App Div. 1992). "Marital agreements, however, are enforceable only if they are fair and equitable." Massar v. Massar, 279 N.J.Super. 89, 93 (App. Div. 1995).
"'[F]undamental canons of contract construction require that we examine the plain language of the contract and the parties' intent, as evidenced by the contract's purpose and surrounding circumstances.'" Highland Lakes Country Club & Cmty. Ass'n. v. Franzino, 186 N.J. 99, 115 (2006) (quoting State Trooper Fraternal Ass'n v. New Jersey, 149 N.J. 38, 47 (1997). An agreement must be accorded a rational meaning in keeping with the express general purpose. Tessmar v. Grosner, 23 N.J. 193, 201 (1957) (citations omitted).
"Generally, once the parties have reached an agreement, no court may create a 'new or better' contract for them." Aarvig v. Aarvig, 248 N.J.Super. 181, 185 (Ch. Div. 1991) (quoting Commc'n Workers of Am., Local 1087 v. Monmouth Cnty. Bd., 96 N.J. 442, 452 (1984)). A court may not adopt "an interpretation contrary to the . . . plain meaning" of the contract's wording because "[a] party that uses unambiguous terms in a contract cannot be relieved from the language simply because it had a secret, unexpressed intent" to a different effect. Schor v. FMS Fin. Corp., 357 N.J.Super. 185, 191 (App. Div. 2002).
With these principles in mind, we find unpersuasive defendant's argument that the judge erred in failing to hold a plenary hearing in these circumstances. First, as we noted earlier, the intent underlying an integrated document must be gleaned in the first instance from the language employed by the parties in the document. Here, the language used in paragraph 4.5 is clear and unambiguous. The parties "agree[d] to split the uncovered [college] expenses if they are able to do so." Moreover, the paragraph recognizes that neither party has the means to send "either daughter to a private university without the daughter received substantial grants, scholarships or loans."
The MSA thus clearly acknowledges the obligation of the parties to "split the uncovered [college] expenses equally" conditioned only on their ability to pay. While the agreement does not quantify the word "substantial" in the sentence referring to a child's attendance at a private school, defendant does not challenge the accomplishments of the younger daughter who qualified for financial aid in the form of grants and loans that covered half the yearly cost of tuition and room and board. Accordingly, there was no substantial necessity to convene a plenary hearing to decide that issue.
Second, we find no factual issue requiring a plenary hearing on whether the younger child's selection of a private college was "reasonable." Defendant knew she had elected to attend the private college and, indeed, helped her to move in. Obviously, she was and is a capable scholar, given the financial aid she received to attend the school and the grades she has achieved there. Defendant's protests about contributing to the uncovered expenses began only after plaintiff pressed him to honor his obligation under the MSA.
Finally, the certifications of the defendant reveal only that he "agreed" to contribute a "maximum amount of $5, 000 per year" given his financial circumstances. The question for resolution, therefore, as recognized by the judge, was whether he was able to pay more than that. Both parties filed Case Information Statements, as well as their 2011 income tax returns and other financial information. Defendant generally argues that this factual issue required a plenary hearing, but does not argue that the parties' ability to pay could not be gleaned from the documentary evidence each party submitted
Next defendant challenges the adequacy of the findings of fact and the conclusions of law set forth by the judge in his letter opinion While it would have been preferable for the judge to have submitted a more expansive statement of the basis for his findings and conclusions we have examined the record submitted and we find no basis to set aside his findings and conclusions
The essential facts here were not in dispute The amount of the uncovered college expenses was not disputed The parties each worked two jobs and had nearly equal gross incomes While there was some challenge to discretionary monthly expenses such dispute was not determinative of each parties' ability to pay Therefore the motion judge had all the necessary factual information to make his ruling
Defendant's arguments respecting the award of counsel fees are without sufficient merit to warrant discussion in a written opinion R 2:11-3(e)(1)(E)