NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-5304-16T1
A-2120-17T1
P.H.,
Plaintiff-Appellant/
Cross-Respondent,
v.
E.M.,
Defendant-Respondent/
Cross-Appellant.1
__________________________
Argued January 7, 2020 – Decided February 19, 2020
Before Judges Yannotti, Hoffman and Currier.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-0793-98.
Francis W. Donahue argued the cause for appellant/
cross-respondent (Donahue, Hagan, Klein & Weisberg,
LLC, attorneys; Francis W. Donahue, on the briefs).
1
Because we discuss information contained in records of the Family Part
proceedings to which the public does not have access, we use initials to identify
the parties and other individuals. R. 1:38-3(d)(1).
Marianne Quinn argued the cause for respondent/cross-
appellant (Meyerson, Fox, Mancinelli & Conte, PA,
attorneys; Marianne Quinn and Kiera E. Kenniff, on the
briefs).
PER CURIAM
In A-5304-16, plaintiff appeals and defendant cross-appeals from an order
of the trial court, dated June 16, 2017, which allocated the college costs and
related expenses for their daughter, M.H., and denied their respective
applications for attorney's fees. In A-2120-17, plaintiff appeals from the court's
orders dated December 1, 2017, which enforced the June 16, 2017 order and
denied plaintiff's cross-motion for attorney's fees. We address both appeals in
this opinion. For the reasons that follow, in A-5304-16, we affirm on the appeal
and cross-appeal; and in A-2120-17, we reverse and remand for further
proceedings.
I.
Plaintiff and defendant were married in 1994, and M.H. was born in
September 1996. The parties separated in 1997, and the marriage was dissolved
by a dual judgment of divorce (JOD), which was filed on May 9, 2000, and
incorporated the parties' Property Settlement and Support Agreement (PSA) .
The PSA states that plaintiff would pay defendant a lump sum of $150,000 for
A-5304-16T1
2
alimony and equitable distribution. Plaintiff also agreed to pay $1500 per month
for child support, to maintain life insurance and medical insurance for M.H., and
to pay M.H.'s reasonable medical expenses.
Although M.H. was only three years old at the time of the divorce, in
paragraph three of the PSA, the parties addressed payment of her private
grammar school, high school, and college tuition. Concerning grammar school
and high school, the parties agreed that M.H. would apply to Horace Mann
School in New York City, plaintiff's alma mater, and that she would attend
Horace Mann "if [the parties] agree she is best suited for" that school. M.H.
could also apply to other schools, and plaintiff agreed to "pay the tuition for the
private school [M.H.] attends."
The PSA further provides that the parties would consult on the selection
of a college for M.H. and take her preferences into account. The PSA states that
if M.H. gains admission to one of certain named Ivy League colleges, plaintiff
would "pay the tuition and reasonable school-related expenses" for her
attendance at that school. The PSA also stated that if M.H. lives away from
home while attending college, plaintiff's child support obligation will decrease,
either as agreed upon by the parties or as determined by the court.
A-5304-16T1
3
Defendant later remarried and had three children with her new spouse.
Plaintiff also remarried and had a child. M.H. was not accepted by Horace
Mann. Instead, she attended The Chapin School in New York City, beginning
with kindergarten.
In June 2003, plaintiff filed a motion to reduce his child support
obligation. He asserted that in 2000, his net worth totaled $9,721,999, but he
estimated that his net worth had "declined more than 100%" since that time, and
that his debts exceeded his assets.
The parties eventually agreed to settle the dispute, and the settlement was
memorialized in a court order filed May 13, 2004, referred to herein as "the
Agreement." The Agreement provides in relevant part that:
1. Plaintiff, [P.H.], shall pay tuition plus all
tuition increases for the parties' daughter, [M.H.],
incurred at The Chapin School now and in the future
through the twelfth grade and [M.H.] shall continue and
attend The Chapin School through twelfth grade.
2. Aside from The Chapin School tuition and any
increases in same through the twelfth grade, [P.H.]
shall have no other obligations for direct or indirect
child support for [M.H.] other than he shall be
responsible for one-half of the uncovered medical,
dental, pharmaceutical, and optical bills for said child.
....
A-5304-16T1
4
7. Both parties further agree that there shall be a
ten (10) year moratorium on any issues of child support
and both parties further agree that their agreement as
contained herein relative to their respective child
support obligations shall be firm and there shall be no
modification of the within agreement for a period of ten
(10) years, under any circumstances.
....
9. Where not in conflict with the within Order,
the terms of the parties' prior Property Settlement and
Support Agreement of March 30, 2000 shall remain in
full force and effect.
On July 22, 2004, the trial court amended its May 13, 2004 order. The
amended order required defendant to "pay all activity fees and all other expenses
for [M.H.] at The Chapin School, other than the tuition and any increases in
same in the future."
In November 2014, after the ten-year moratorium in the Agreement
expired, plaintiff filed a motion to compel defendant to pay all of M.H.'s college
expenses. The trial court referred the matter to mediation, which was
unsuccessful. In September 2015, M.H. enrolled in Duke University.
Thereafter, the court conducted a plenary hearing on plaintiff's motion.
The hearing began on October 26, 2016, continued on fourteen non-consecutive
dates, and concluded on May 3, 2017. Plaintiff and defendant testified at the
A-5304-16T1
5
hearing. Defendant also presented testimony from Dr. David Stein, a state-
licensed and board-certified vocational and rehabilitation counselor.
On June 16, 2017, the judge filed a written opinion in which he concluded
that the Agreement did not relieve plaintiff of his responsibility to contribute to
M.H.'s college education. The judge found that tuition, fees, room and board,
books, and personal expenses for M.H.'s attendance at Duke were approximately
$73,000 per year, but noted that defendant claimed the costs would be closer to
$83,400, if travel and spending money are included.
The judge then considered the relevant factors under N.J.S.A. 2A:34-23(a)
and Newburgh v. Arrigo, 88 N.J. 529, 545 (1982), and found that the parties
both were obligated to contribute to M.H.'s undergraduate education. The judge
imputed annual income of $160,000 to plaintiff and $98,700 to defendant.
Based on the amounts of income imputed to the parties, the judge determined
that plaintiff must pay sixty-two percent of M.H.'s college costs and defendant
must pay the remaining thirty-eight percent.
The judge denied the parties' respective motions for attorney's fees, and
dismissed without prejudice plaintiff's request for a decision on the financing of
M.H.'s graduate school education, finding that such a decision would be
premature.
A-5304-16T1
6
The judge memorialized his decision in an order dated June 16, 2017.
Plaintiff filed an appeal from the court's order, and defendant filed a
cross-appeal. As noted, the appeal was docketed under A-5304-16.
Thereafter, defendant filed a motion in the trial court to enforce the June
16, 2017 order and sought clarification as to "what is included in college costs
and college related expenses." Plaintiff opposed the motion and filed a
cross-motion which included a request for attorney's fees. By orders dated
December 1, 2017, the judge granted defendant's motion, ordered plaintiff to
reimburse defendant $33,658.06 for certain college costs and related expenses,
and denied plaintiff's cross-motion.
Initially, plaintiff filed a motion under docket number A-5304-16 to
vacate the December 1, 2017 order granting defendant's motion. Plaintiff argued
that the trial court did not have jurisdiction to consider the motion and grant
such relief. Plaintiff also moved to supplement the record. We denied both
motions. Plaintiff then filed an appeal from the December 1, 2017 orders, which
was docketed under A-2120-17.
In A-5304-16, plaintiff raises the following arguments:
POINT I
THE 2004 AGREEMENT PRECLUDES
PLAINTIFF'S LIABILITY FOR M.H.'S HIGHER-
EDUCATION EXPENSES.
A-5304-16T1
7
POINT II
ALTERNATIVELY, EVEN IF THE 2004
AGREEMENT IS NOT CONTROLLING, [THE
JUDGE'S] OWN FACT FINDINGS PROVE HIS
APPORTIONMENT IS MANIFESTLY
UNREASONABLE AND ESTABLISH
DEFENDANT'S LIABILITY FOR SUPPORT FOR
ALL OF M.H.'S COLLEGE EXPENSES.
POINT III
ALTERNATIVELY, IN APPORTIONING COLLEGE
SUPPORT, [THE JUDGE] FAILED TO APPLY
CONTROLLING LAW, DENIED PLAINTIFF
ESSENTIAL DISCOVERY, AND MADE
UNSUPPORTED FINDINGS CONTRARY TO ALL
COMPETENT EVIDENCE.
POINT IV
[THE JUDGE] MISTAKENLY DENIED PLAINTIFF
A COUNSEL-FEE AWARD.
POINT V
THIS COURT SHOULD DIRECT ANY REMAND BE
REASSIGNED TO A NEW MOTION JUDGE.
In her cross-appeal, defendant raises the following argument:
THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S REQUEST FOR COUNSEL FEES
AS [THE JUDGE] DETERMINED THAT
PLAINTIFF'S POSITION THROUGHOUT THE
PENDENCY OF THIS MATTER WAS NOT
ADVANCED IN GOOD FAITH.
In A-2120-17, plaintiff argues:
A-5304-16T1
8
POINT I
THIS COURT SHOULD VACATE, FOR LACK OF
JURISDICTION PURSUANT TO [RULE] 2:9-1, [THE
JUDGE'S] DECEMBER 1, 2017, ORDER ON
DEFENDANT'S MOTION.
POINT II
ALTERNATIVELY, THIS COURT SHOULD
REVERSE, FOR FAILURE TO STATE FINDINGS
AND REASONS AS REQUIRED BY [RULE] 1:7-
4(a), [THE JUDGE'S] DECEMBER 1, 2017, ORDER
ON DEFENDANT'S MOTION. ([N]ot raised below).
POINT III
THIS COURT SHOULD REVERSE, FOR FAILURE
TO STATE FINDINGS AND REASONS AS
REQUIRED BY [RULE] 1:7-4(a), [THE JUDGE'S]
DECEMBER 1, 2017, ORDER DENYING
PLAINTIFF A COUNSEL FEE AWARD. ([N]ot
raised below).
II.
Appeal No. A-5304-16
A. The Agreement.
Plaintiff argues that the trial court erred in its interpretation of the
Agreement. He contends the Agreement relieved him of any obligation to pay
a share of M.H.'s college costs and the court erred by concluding otherwise.
Paragraph two of the Agreement states that "[a]side from The Chapin School
tuition and any increases in same through the twelfth grade," plaintiff "shall
A-5304-16T1
9
have no other obligations for direct or indirect child support" other than one -
half of the uncovered medical bills.
The judge accepted defendant's testimony and found that in paragraph
two, defendant had "agreed to waive child support" of $1500 per month for
eleven years, which totaled $198,000, because she wanted to ensure that M.H.
would attend The Chapin School through high school and that plaintiff would
pay the tuition. The judge noted that neither paragraph two nor any other part
of the Agreement mentioned college.
The judge pointed out that paragraph three of the PSA states that plaintiff
would pay M.H.'s college "tuition and reasonable school related expenses for
same" if she is accepted to and decides to attend one of certain named Ivy League
schools. Paragraph three also states that "[w]hen [M.H.] attends college,
providing she lives away, the amount of child support being paid by [P.H.] to
[E.H.] will decrease" as agreed by the parties, or provided by court order. The
judge found that in the PSA, the parties "recognized the distinction between
child support and the costs of college."
The judge noted that the Agreement did not modify or replace paragraph
three of the PSA because the Agreement did not address college at all. The
judge stated that if the parties had intended to modify that provision of the PSA
A-5304-16T1
10
in light of plaintiff's willingness to pay 100% of M.H.'s tuition at the Chapin
School, the Agreement would have stated that plaintiff "shall have no other
obligations for direct or indirect child support including college ."
The judge also observed that in 2003, after plaintiff filed his motion for a
reduction in child support, plaintiff testified at a deposition and denied he was
unwilling to pay for M.H.'s college education. Plaintiff said the parties would
"cross that bridge when we get to it." The judge found plaintiff's testimony
supported the conclusion that the phrase "direct and indirect child support" in
the Agreement did not relieve plaintiff of paying a share of M.H.'s college costs.
On appeal, plaintiff argues that the Agreement "unambiguously expresses
the parties' intent" that he would "pay nearly all of [M.H.'s] child support,"
including her private school tuition at The Chapin School through the twelfth
grade, while defendant would pay "nearly all other child support," including
M.H.'s college costs. He contends the trial court added new terms to the
Agreement and gave defendant "a better bargain" than the one the parties made
for themselves.
"We review the Family Part judge's findings in accordance with a
deferential standard of review, recognizing the court's 'special jurisd iction and
expertise in family matters.'" Thieme v. Aucoin-Thieme, 227 N.J. 269, 282-83
A-5304-16T1
11
(2016) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "The Family Part's
'substantial discretion' in determining child support applies equally to
compelling a parent to contribute to their child's college costs."
Avelino-Catabran v. Catabran, 445 N.J. Super. 574, 588 (App. Div. 2016)
(quoting Gotlib v. Gotlib, 399 N.J. Super. 295, 308 (App. Div. 2008)). "We
must accept the Family Part's determination concerning a parent's obligation to
contribute toward college tuition, provided the factual findings are supported by
substantial credible evidence in the record and the judge has not abused his or
her discretion." Ibid.
Here, the judge applied well-established principles of contract
interpretation when he interpreted the parties' Agreement. "The polestar of
contract construction is to discover the intention of the parties as revealed by
the language used by them." EQR-LPC Urban Renewal N. Pier, LLC v. City of
Jersey City, 452 N.J. Super. 309, 319 (App. Div. 2016) (quoting Karl's Sales &
Serv., Inc. v. Gimbel Bros, Inc., 249 N.J. Super. 487, 492 (App. Div. 1991)),
aff'd, 231 N.J. 157 (2017). "[W]hen the intent of the parties is plain and the
language is clear and unambiguous, a court must enforce the agreement as
written, unless doing so would lead to an absurd result." Quinn v. Quinn, 225
N.J. 34, 45 (2016).
A-5304-16T1
12
"[I]f the terms of [a] contract are susceptible to at least two reasonable
alternative interpretations, an ambiguity exists" and "a court may look to
extrinsic evidence as an aid to interpretation." Barr v. Barr, 418 N.J. Super. 18,
32 (App. Div. 2011) (quoting Chubb Custom Ins. Co. v. Prudential Ins. Co. of
Am., 195 N.J. 231, 238 (2008)). However, even if the contract is clear and
unambiguous, a court "may consider 'all of the relevant evidence that will assist
[the court] in determining [its] intent and meaning.'" Manahawkin Convalescent
v. O'Neill, 217 N.J. 99, 118 (2014) (quoting Conway v. 287 Corp. Ctr. Assocs.,
187 N.J. 259, 269 (2006)).
We are convinced that there is sufficient credible evidence in the record
to support the trial court's conclusion that the Agreement did not relieve plaintiff
of his obligation to pay a share of M.H.'s college costs. The court's finding is
supported by the plain language of the Agreement. As the court noted, neither
paragraph two nor any other provision in the Agreement specifically addresses
M.H.'s college or college costs. Indeed, paragraph two of the Agreement
pertains only to M.H.'s secondary school education at The Chapin School.
Moreover, the Agreement's ten-year moratorium on modification of
support in paragraph seven ended in 2014, when M.H. was still in high school.
When read together, paragraph two and paragraph seven support the conclusion
A-5304-16T1
13
that the parties anticipated that the economic issues concerning college tuition
and ongoing support for M.H. would be addressed after the moratorium ended.
In addition, in paragraph three of the PSA, the parties recognized the
distinction between college costs and child support. The PSA provides that
plaintiff's child support obligation would decrease if M.H. lived away from
home during college. This provision of the PSA supports the trial court's finding
that the parties did not intend that the phrase "direct or indirect child support,"
as used in the Agreement, would include M.H.'s college costs.
Plaintiff argues, however, that the judge erred by considering extrinsic
evidence because the judge found that the relevant provision of the Agreement
was unambiguous. We disagree. As noted previously, even though the
Agreement is clear and unambiguous, the court had the discretion to consider all
relevant evidence when interpreting the Agreement. Ibid. (quoting Conway, 187
N.J. at 269). The extrinsic evidence supports the court's conclusion that the
Agreement does not relieve plaintiff of his obligation to pay a share of M.H.'s
college costs.
Plaintiff further argues that the trial judge's interpretation of the
Agreement is inconsistent with Raynor v. Raynor, 319 N.J. Super. 591, 596
(App. Div. 1999). In Raynor, the decedent and his first wife had two children.
A-5304-16T1
14
When they divorced, the judgment required the decedent to maintain a life
insurance policy his employer had provided, with his children named as
"irrevocable beneficiaries for as long as [the decedent's] child support obligation
continue[d]." Ibid. The judgment did not mention college expenses, but we
held that the insurance policy was intended "to secure [the] decedent's support
obligation, which encompasses a contribution for college costs." Id. at 611
(citing N.J.S.A. 2A:34-23(a)).
In this case, however, the PSA distinguished college costs from child
support. In addition, the Agreement addressed the cost for M.H.'s attendance at
The Chapin School, not M.H.'s college expenses. Furthermore, plaintiff's
deposition testimony, which we discussed earlier, supports the conclusion that
the Agreement did not relieve plaintiff of his obligation to pay a share of M.H.'s
college costs. Thus, plaintiff's reliance upon Raynor is misplaced.
In further support of his arguments on appeal, plaintiff relies upon Jacoby
v. Jacoby, 427 N.J. Super. 109 (App. Div. 2012), and Hudson v. Hudson, 315
N.J. Super. 577, 584 (App. Div. 1998). Plaintiff contends that our opinions in
these cases show that the phrase "direct or indirect child support" in the
Agreement includes college costs and expenses as a matter of law. He therefore
A-5304-16T1
15
argues that the Agreement relieves him of any responsibility to pay M.H.'s
college costs. Again, we disagree.
In Jacoby, we stated that "[t]he payment of college costs differs from the
payment of [basic] child support." 427 N.J. Super. at 121. We also stated that
child support for "college costs should be provided in addition to the amount of
[basic] child support." Ibid. (citation omitted). Moreover, in Hudson, we stated
that "[basic] [c]hild support and contribution to college expenses are two
discrete yet related obligations." 315 N.J. Super. at 584.
Thus, Jacoby and Hudson do not support plaintiff's contention that the
phrase "direct or indirect child support" in the Agreement includes college costs.
Rather, these opinions support the conclusion that there is a difference between
basic child support and college costs, which the parties recognized in the PSA
and the Agreement. Jacoby and Hudson support the trial court's determination
that the Agreement did not relieve plaintiff of his obligation to pay a share of
M.H.'s college costs.
B. Allocation of the College Costs.
Plaintiff argues that, assuming the trial court correctly found the
Agreement does not relieve him of his obligation to contribute to the payment
of M.H.'s college costs, the court erred by allocating sixty-two percent of those
A-5304-16T1
16
costs to him. Plaintiff contends the court's apportionment is manifestly
unreasonable, contrary to law, and unsupported by the record. He also contends
the court's findings show that defendant should have the sole responsibility for
M.H.'s college costs.
Absent an enforceable agreement apportioning child support and college
costs, "a trial court should balance the statutory criteria of N.J.S.A. 2A:34 -23(a)
and the Newburgh factors, as well as any other relevant circumstances, to reach
a fair and just decision whether and, if so, in what amount, a parent or parents
must contribute to a child's educational expenses." Gac v. Gac, 186 N.J. 535,
543 (2006). Accord Avelino-Catabran, 445 N.J. Super. at 591 n.8. Our Supreme
Court has observed that "the Legislature essentially approved" the Newburgh
factors when it amended N.J.S.A. 2A:34-23(a). Kiken v. Kiken, 149 N.J. 441,
449 (1997).
In his opinion, the judge made detailed findings of fact regarding the
twelve Newburgh factors. Among other things, the judge found that the parties
had anticipated M.H. would attend college, and that the cost of M.H.'s
attendance at Duke is currently about $73,000 per year, though defendant
claimed the cost would be about $83,400 if travel expenses and spending money
is included. The judge noted that these costs "will likely increase in the future."
A-5304-16T1
17
The judge found that both parties had the ability to pay a share of these
college costs. The judge rejected plaintiff's assertion that he did not have the
ability to pay a share of these costs. The judge accepted Dr. Stein's opinion that
plaintiff "should be able to enter the workforce and earn a base salary in the
range of at least $160,000 to $250,000" as a marketing manager, financial
manager, financial analyst, sales manager, investment bank manager, registered
representative, or investment analyst and consultant. As noted previously, the
judge imputed annual income of $160,000 to plaintiff.
The judge rejected plaintiff's testimony that he would be unable to secure
employment in any of the positions cited by Dr. Stein. The judge found
plaintiff's testimony was "not credible inasmuch as he has neither attempted to
find any job nor attempted to obtain gainful employment or exhibit any
motivation or intent to apply for any job, which could produce steady income."
In addition, the judge observed that defendant was a stay-at-home mother,
which was due, in part, to the significant special needs of her oldest child. The
judge pointed out that defendant has three advanced degrees. The judge noted
that defendant had the ability to earn income in the field of microbiology, and
cited the New Jersey Department of Labor and Workforce Development's
Occupational Wage Survey (Wage Survey), which states that "microbiologists
A-5304-16T1
18
can be expected to earn between $78,000 and $98,700." The judge found that
defendant could earn $98,700 annually.
The judge also considered the parties' respective financial assets and
liabilities and noted that defendant's current spouse has no legal obligation to
support M.H. The judge found that the parties did not expect M.H. to contribute
towards her college costs, and it was unlikely M.H. would qualify for financial
aid. The judge stated that the parties had a "strong personal relationship" with
M.H., and they would continue to share parenting time when M.H. is home from
college.
The judge apportioned M.H.'s college costs to the parties in proportion to
the amounts of income he imputed to them, with plaintiff responsible for
sixty-two percent of the costs and defendant responsible for the remaining thirty-
eight percent. The judge found that "there is no reason why [M.H.] cannot work
part time during the academic year or work part time during the summer or other
school breaks." The judge added that if M.H. chooses not to work, "she should
at least apply for all available scholarships[,] loans and grants for which she
qualifies" that are not need-based.
We are convinced there is sufficient credible evidence in the record to
support the trial court's findings of fact and its decision to apportion sixty -two
A-5304-16T1
19
percent of M.H.'s college costs to plaintiff and thirty-eight percent to defendant.
The record supports the trial court's finding that the parties have the ability to
pay their allocated shares of M.H.'s estimated college costs, and the parties'
respective contributions will not exceed the amounts of income the court
imputed to them.
Although the judge did not expressly find that plaintiff was
underemployed, the judge did not err by imputing income to plaintiff because
plaintiff failed to establish he was "earning at capacity." Storey v. Storey, 373
N.J. Super. 464, 474 (App. Div. 2004). Accord Elrom v. Elrom, 439 N.J. Super.
424, 436 (App. Div. 2015). In this regard, we note that plaintiff did not report
any earned income on his 2016 Case Information Statement (CIS).
On appeal, plaintiff argues that the record does not support the judge's
finding that he could find employment in one of the positions identified by Dr.
Stein. The record shows, however, that plaintiff has a medical degree from
Columbia Medical School and a master's degree from Harvard Business School.
He also has experience working in the financial industry. The judge found that
plaintiff's claim that he could not find employment in one of the positions
identified by Dr. Stein was not credible. The record supports that finding.
A-5304-16T1
20
Plaintiff argues that the trial court erred by accepting Dr. Stein's
testimony, which he contends was an unsupported, net opinion. The net opinion
rule bars an expert from providing conclusions that are not based on "factual
evidence or similar data." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J.
344, 372 (2011) (citing Polzo v. Cty. of Essex, 196 N.J. 569, 583 (2008);
Buckelew v. Grossbard, 87 N.J. 512, 524 (1981)). An expert must "give the
why and wherefore" of his opinion, "rather than a mere conclusion." Polzo, 196
N.J. at 583 (quoting State v. Townsend, 186 N.J. 473, 494 (2006)).
Here, Dr. Stein's opinions were based on his interview of plaintiff,
plaintiff's worker-trait profile, statistical data, and his forty years of experience
as a vocational evaluator. Dr. Stein provided the "why and wherefore" of his
opinions. His testimony was not a net opinion.
Plaintiff also contends that the trial court erred by failing to consider the
taxes he would be required to pay on his imputed income. He asserts that after
deducting taxes, the amount of annual income imputed to him will not be
sufficient to pay his share of M.H.'s college costs. He claims he will have to
cease paying rent and all personal expenses in order to afford his share of M.H.'s
college costs.
A-5304-16T1
21
Plaintiff's assertions are unavailing. As noted previously, the judge
imputed annual income to plaintiff at the low end of the range of his potential
earnings, which was from $160,000 to $250,000. Dr. Stein also testified that
plaintiff could earn fringe benefits and bonuses, which could substantially
increase his annual income. The judge did not err by finding that plaintiff is
capable of paying his share of M.H.'s college costs.
Plaintiff further argues that defendant should have been required to pay
all of M.H.'s college costs because defendant and her current spouse have
accumulated a substantial amount of assets. He asserts that because defendant's
current spouse provides for her living expenses, all of her imputed income can
be used to fund M.H.'s college expenses.
Essentially, plaintiff is asserting that defendant's current spouse should
bear some responsibility for paying for M.H.'s attendance at college. It is well-
established, however, "that a current spouse has no obligation to support
someone else's child." Hudson, 315 N.J. Super. at 584.
In addition, plaintiff argues the judge failed to account for the fact that in
2000, while she was working as a consultant at a law firm, defendant earned
$120,000, along with a bonus. Defendant testified, however, that 2000 was the
A-5304-16T1
22
only year in which she earned in excess of $100,000 and she typically earned
less than that.
We have considered plaintiff's other arguments on the imputation of
income and allocation of costs. We are convinced these arguments lack
sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
We therefore conclude that the record supports the trial court's decision
allocating sixty-two percent of M.H.'s college costs to plaintiff and thirty-eight
percent to defendant.
C. Discovery.
Plaintiff argues that the judge erred by denying his motion for discovery.
He contends the judge "deprived" him "of essential discovery proving
defendant's ability to pay" M.H.'s college expenses, child support, and counsel
fees.
On appeal, "we accord substantial deference to a trial court's disposition
of a discovery dispute" and "will not ordinarily reverse" those decisions "absent
an abuse of discretion or a judge's misunderstanding or misapplication of the
law." Brugaletta v. Garcia, 234 N.J. 225, 240 (2018) (quoting Capital Health
Sys., Inc. v. Horizon Healthcare Servs., Inc., 230 N.J. 73, 79-80 (2017)).
"Discovery in post-judgment family motions is at the discretion of the court and
A-5304-16T1
23
requires a preliminary threshold showing." Welch v. Welch, 401 N.J. Super.
438, 446 (Ch. Div. 2008).
The record shows that defendant provided plaintiff with her CISs and joint
income tax returns. Thereafter, plaintiff filed a motion to compel defendant to
provide answers to interrogatories concerning "the totality of [d]efendant's
financial circumstances with her non-party spouse . . . including their income,
lifestyle, assets, and liabilities, no matter in whose name titled."
The judge denied plaintiff's motion, finding that both parties had already
exchanged their CISs and financial documents, and that "[a]nything beyond this
. . . is not reasonably related to settling the issues that are before the [c]ourt."
The judge decided that the information plaintiff sought was "tangential,"
"oppressive," and "unnecessary."
Plaintiff argues, however, that defendant's CISs were incomplete. He
asserts that defendant omitted her current spouse's income, and failed to disclose
certain marital assets or credit cards held in her spouse's name only. Plaintiff
further argues that although defendant produced her joint income tax returns,
she failed to include "her Schedules K-1 revealing capital accounts."
We are convinced that the trial court did not mistakenly exercise its
discretion by finding that plaintiff had been provided with ample information
A-5304-16T1
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about defendant's finances and further discovery was not warranted. Plaintiff
acknowledges that defendant has no income of her own. Furthermore,
defendant's current spouse's income was reflected on the joint tax returns he and
defendant filed for tax years 2008 through 2015. Those tax returns were
provided to plaintiff during discovery.
Moreover, defendant's CISs disclosed the value of her individual assets
and the marital assets she jointly held with her current spouse, including real
estate and automobiles. The CISs also detailed the couple's monthly expenses
and marital lifestyle.
As we have pointed out, since defendant's current spouse is not M.H.'s
biological father, he is not obligated to contribute toward her college expenses
unless he voluntarily assumes that responsibility. Hudson, 315 N.J. Super. at
584. There is no evidence that defendant's current spouse voluntarily assumed
responsibility for supporting M.H.
As noted, plaintiff asserts that additional discovery was warranted because
defendant did not produce copies of the K-1 schedules for her tax returns.
However, plaintiff has not shown the information on these schedules was likely
to have a significant bearing upon the court's ultimate decision. We therefore
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25
reject plaintiff's contention that the trial court erred by denying his motion to
compel discovery.
D. Attorney's Fees.
Plaintiff argues that the trial court erred by denying his motion for
attorney's fees. Plaintiff contends the judge made "unsupported findings" and
"failed to apply governing law." In her cross-appeal, defendant argues that the
court erred by denying her motion for counsel fees. Defendant contends the
judge should have awarded her counsel fees because he found plaintiff had not
advanced his position in good faith.
N.J.S.A 2A:34-23 provides that when an application is made to the court
regarding child support, the court may make an award of counsel fees, and in
doing so, the court "shall consider the factors set forth in the court rule on
counsel fees, the financial circumstances of the parties, and the good or bad faith
of either party." Moreover, Rule 5:3-5(c) requires the Family Part to consider
nine enumerated factors when deciding whether to award attorney's fees.
"We will disturb a trial court's determination on counsel fees only on the
'rarest occasion,' and then only because of clear abuse of discretion." Strahan v.
Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (quoting Rendine v. Pantzer,
141 N.J. 292, 317 (1995)).
A-5304-16T1
26
Here, the judge considered the relevant factors under N.J.S.A. 2A:34-23
and the court rule. The judge found that plaintiff "did not get what he wanted"
and did not act in good faith. The judge stated that the litigation costs, which
exceeded $500,000, "were driven by the lack of cooperation between the parties
and their inability to arrive at an amicable resolution--all to the detriment of
their daughter."
The judge found that neither plaintiff nor defendant had the ability to pay
the other party's attorney's fees. The judge noted that plaintiff had "deplet[ed]
his assets to the point where his wife needed to volunteer at [his son's] school,"
and "defendant reached a point where her current husband has drawn the line"
and "[t]here simply is not enough money to fund a war without impacting their
family."
We are convinced that the judge did not err by denying the parties' motions
for counsel fees. The judge's decision was not a mistaken exercise of discretion.
The parties' arguments regarding counsel fees lack sufficient merit to warrant
further comment. R. 2:11-3(e)(1)(E).
Accordingly, we affirm the trial court's order of June 19, 2017.
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27
III.
Appeal No. A-2120-17
We turn to plaintiff's appeal from the trial court's orders of December 1,
2017. Plaintiff argues that the trial court did not have jurisdiction to grant
defendant's motion because an appeal was pending from the June 16, 2017 order.
He also contends the court erred by failing to make necessary findings of fact
and conclusions of law.
A. Defendant's Motion.
On September 19, 2017, defendant filed a motion to compel plaintiff to
pay her $30,967.08, which she claimed was sixty-two percent of the cost
incurred for M.H.'s attendance at Duke through March 2017. Defendant also
sought immediate reimbursement of $1987.99, which she said was sixty-two
percent of M.H.'s college costs and expenses incurred between March 2017 and
the end of the Spring 2017 semester.
In addition, defendant sought $702.99, which was allegedly plaintiff's
share of M.H.'s airfare to Rome for the semester abroad beginning in the Fall of
2017. The expenses for which defendant demanded reimbursement included
charges that M.H. incurred for transportation, UPS, laundry, purchases at the
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28
Apple store, payments to Duke for "damages," M.H.'s "flex account," and other
miscellaneous expenses.
In her motion, defendant also asked the court to clarify its prior decision
and determine that: (1) plaintiff's share of M.H.'s college costs and related
expenses is not subject to a $73,000 per year cap; and (2) M.H.'s college costs
and related expenses include, but are not limited to, "transportation, clothing,
entertainment, toiletries and sundries, laundry, dorm/apartment set up, shipping
and storage of personal effects, etc."
Plaintiff opposed defendant's motion and argued that he had already
contributed more than his allocated share of the costs. He cross-moved for an
order denying the relief sought and for an award of attorney's fees.
Among other things, plaintiff asserted that he could not afford to
contribute to M.H.'s extravagant lifestyle expenses, which he said included
"hundreds of Uber, taxi, restaurant, and similar charges." He also asserted that
defendant's request for "clarification" was tantamount to an untimely motion for
reconsideration, and that the court's allocation order was "crystal clear as
written."
The trial court did not conduct oral argument on the motion and cross-
motion. On December 1, 2017, the judge entered two orders. The first order
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29
granted defendant's motion and directed plaintiff to pay defendant the amounts
she claimed. The order states that M.H.'s college costs and related expenses are
not "capped" at $73,000 per year, and that the costs are like the costs included
in the examples identified in Jacoby, 427 N.J. Super. at 109. In the second order,
the judge denied plaintiff's cross-motion.
On appeal, plaintiff argues that the trial court erred by failing to provide
findings of fact and conclusions of law for his orders. We agree.
Rule 1:7-4(a) states that "[t]he court shall, by an opinion or memorandum
decision, either written or oral, find the facts and state its conclusions of law
thereon in all actions tried without a jury, on every motion decided by a written
order that is appealable as of right." "Naked conclusions do not satisfy the
purpose of R. 1:7-4." Curtis v. Finneran, 83 N.J. 563, 569-70 (1980). Moreover,
"[m]eaningful appellate review is inhibited unless the judge sets forth the
reasons for his or her opinion." Salch v. Salch, 240 N.J. Super. 441, 443 (App.
Div. 1990).
Here, the judge did not issue any oral or written findings of fact or
conclusions of law on defendant's motion for reimbursement. The judge ordered
plaintiff to pay defendant $33,658.06. We cannot discern from the record
A-5304-16T1
30
whether the judge analyzed defendant's proofs or determined that they
adequately supported her reimbursement request.
The judge did not address plaintiff's contention that some of the expenses
for which defendant sought reimbursement were extravagant. The judge did not
analyze the nature of the expenses, determine whether the expenses were
essential or non-essential, or make any findings as to the appropriateness or
reasonableness of the costs.
Furthermore, the judge did not clarify the expenses that are subject to
apportionment. The judge merely stated on the order that they include expenses
like those identified in Jacoby. In Jacoby, the court set forth a non-exhaustive
list of expenses that are "illustrative of costs associated with supporting a college
experience." 427 N.J. Super. at 121-22.
On remand, the trial court should identify with specificity the expenses
that are subject to apportionment. The court should determine whether the costs
for which defendant seeks reimbursement are essential or non-essential, and
whether they are reasonable and appropriate. The court also should explain the
reasons for denying plaintiff's cross-motion for counsel fees.
We therefore reverse the trial court's orders of December 1, 2017, and
remand defendant's motion and plaintiff's cross-motion to the trial court for
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31
further proceedings on the motions in conformity with this opinion. The court
shall make the findings of fact and conclusions of law required by Rule 1:7-4.
In view of our decision, we need not address plaintiff's contention that the
trial court did not have jurisdiction to entertain defendant's motion.
Affirmed on the appeal and cross-appeal in A-5304-16; reversed and
remanded to the trial court for further proceedings in A-2120-17. We do not
retain jurisdiction.
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P.H. VS. E.M. (FM-02-0793-98, BERGEN COUNTY AND STATEWIDE) (CONSOLIDATED)
Combined Opinion