SHERI SHAFFER v. HAL J. SHAFFER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0884-04T10884-04T1

SHERI SHAFFER,

Plaintiff-Respondent,

v.

HAL J. SHAFFER,

Defendant-Appellant.

_______________________________

 

Argued: December 7, 2005 - Decided:

Before Judges Skillman and Axelrad.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Camden County, FM-4-1230-01.

Hal J. Shaffer, appellant, argued the cause pro se.

Joseph M. Weinberg argued the cause for respondent (Weinberg, McCormick, Chatzinoff & Zoll, attorneys; Barry Chatzinoff, on the brief).

PER CURIAM

Defendant Hal Shaffer appeals from paragraph three of the court's September 7, 2004 order, as supplemented by the October 26, 2004 order, requiring him to pay $130,973 towards the college expenses of the parties' daughter Samantha, based on a finding that he misappropriated that amount of money, stocks and bonds given to Samantha, primarily by her grandfather, under the Uniform Gift to Minors Act (UGMA). Defendant does not challenge that portion of the order requiring him to pay twenty-five percent of any remaining college expenses.

This order arose in connection with a post-judgment application by plaintiff to compel defendant to be responsible for Samantha's college expenses. The issue had been deferred in paragraph 2(f) of the parties' December l8, 200l property settlement agreement incorporated into their final judgment of divorce. During the four-day plenary hearing, additional facts were brought to the court's attention regarding defendant's use of funds gifted to the parties' four children by plaintiff's wealthy father, which defendant held as custodian under the UGMA. Defendant acknowledged that during the marriage he used funds entrusted to him on his children's behalf, including specific gifts to Samantha, to support the family lifestyle and for the general benefit of the children, such as summer camp, trips to Aspen and to build and furnish a $1,400,000 home.

The court found "a clear pattern of [defendant's] use of funds designated for his children to be held by him in a parental fiduciary capacity for other purposes," and made specific findings as to the value of the various gifts held for Samantha which had been utilized by defendant. The court also found defendant had substantial income upon which to support his family, and thus his use of Samantha's funds constituted a misappropriation warranting repayment. The court further concluded that a trust the maternal grandfather had established for his thirteen grandchildren, including Samantha, had not been earmarked for education expenses. Accordingly, the court ordered defendant to pay the first $130,973 of Samantha's college education expenses, with credit for funds he paid on behalf of such expenses prior to the date of the order and any balance to be shared proportionally by the parties.

Defendant does not challenge the trial court's factual finding as to the amount or use of Samantha's funds. He contends, however, the court erred in concluding he breached his duty as custodian and fiduciary for his daughter, and claims he properly used the custodial gifts. He further contends the court erroneously considered the donor's lack of permission to use the gifts for family purposes in finding misappropriation, which is not required by the UGMA.

We disagree. When commenting on the evidence presented at the plenary hearing, the trial court noted the donor's lack of permission for use of the gifts. It is clear from the record, however, that was not the sole basis for the court's finding. We affirm substantially for the reasons articulated by Judge Holden in his oral decision on August 24, 2004. We note the trial court's decision is amply supported by our decision in Cohen v. Cohen, 258 N.J. Super. 24, 30-31 (App. Div.), certif. denied, 130 N.J. 596 (1992), which held:

In New Jersey, the estate of a minor may not be used for his support and maintenance if those who are legally responsible for the minor have sufficient funds to enable them to fulfill their responsibilities . . . In view of this well established principle, we construe the Uniform Gift to Minors Act in the same way that the courts of other states have done. We hold that despite the broad language of the statute purporting to confer wide discretion on the custodian, a custodian who is also a parent cannot properly use assets of a UGMA account to defray the parent's legal obligations to a child if the parent is financially able to support the child.

Thus, regardless of defendant's intentions in spending the money, his actions constituted a breach of his fiduciary duty to Samantha.

 
Affirmed.

(continued)

(continued)

4

A-0884-04T1

December 19, 2005