MARILYN R. MILLS v. DENNIS M. MILLS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1764-04T31764-04T3

MARILYN R. MILLS,

Plaintiff,

v.

DENNIS M. MILLS,

Defendant-Respondent.

_______________________________

KATIE A. MILLS,

Intervenor-Appellant.

_______________________________

 

Submitted September 27, 2005 - Decided

Before Judges Lefelt and Seltzer.

On appeal from a Final Judgment of the

Superior Court of New Jersey,

Chancery Division, Family Part,

Camden County, FM-04-30726-92.

Michael J. Pimpinelli, attorney for

intervenor-appellant.

Maury K. Cutler, attorney for

respondent.

PER CURIAM

Katie Mills, the daughter of plaintiff and defendant, appeals from the denial of her motion to intervene in the litigation to allow her to file a post-judgment application to compel defendant, her father, to contribute to her college expenses. We reverse.

Plaintiff and defendant were married on May 17, 1975, and divorced on October 28, 1992. One child, the appellant, was born of the marriage on August 25, 1981. The economic and parenting issues were resolved by a Property Settlement Agreement executed on September 3, 1992. The Agreement provided that the parties would share joint legal custody of Katie with physical custody retained by the plaintiff. Defendant was to pay child support of Twenty-Five ($25.00) Dollars each week. The parties agreed to share responsibility for the cost of Katie's college education and agreed that enrollment in a college would constitute a change of circumstances, requiring a modification of the child support paid by defendant to plaintiff. The modification was to be accomplished after taking into account the respective contributions made by each party to their child's college education.

Eight years after the divorce, plaintiff sought, for the first time, an increase in child support. The record does not reflect whether a motion was filed or the request was made directly of defendant. In any event, the parties voluntarily modified defendant's support obligation by a Consent Order dated January 8, 2001. That Order increased the amount of child support paid by defendant to plaintiff from Twenty-Five ($25.00) Dollars per week to One Hundred and Ten ($110.00) Dollars per week, effective as of August 31, 2000. The Consent Order also provided that, other than the payment of no more than Two Hundred ($200.00) Dollars per year for a parking permit for Katie, defendant "... shall have no further obligation to contribute to the cost of said child's college education." It is that provision that leads to this controversy.

Defendant moved, on a date in 2003 undisclosed by this record, for an order emancipating his daughter. By Order, dated September 26, 2003, the motion was denied. The motion judge recognized that Katie was a full-time college student and, consequently, would not be deemed emancipated until the end of the Summer 2004 semester. During those proceedings, plaintiff made what appears to have been an informal request to require defendant to contribute financially to Katie's school loans and college expenses. The Order denying emancipation specifically noted that no decision had been made with respect to that request.

Approximately one year later, plaintiff filed a motion to require defendant to contribute to the cost of their daughter's college education. Katie was not, apparently, notified of the motion. The motion judge conducted a hearing and denied the motion by Order dated September 9, 2004. Plaintiff, apparently, has not appealed that Order and the time within which she might do so has long expired.

Rather than appeal the adverse decision, on September 20, 2004, plaintiff moved to permit her daughter to intervene pursuant to R. 4:33-1 and to amend the Complaint by adding appellant as a party plaintiff pursuant to R. 4:9-1. The motion was argued on October 29, 2004 and denied by Order entered that same day.

We begin our analysis by recognizing that applications to intervene as a matter of right, pursuant to R. 4:33-1, are evaluated in the first instance by the trial court. State by Bontempo v. Lanza, 39 N.J. 595, 600 (1963) cert. den. 375 U.S. 451, 11 L. Ed. 2d 477, 845 S. Ct. 525 (1964). Ordinarily, such applications should be liberally granted. Ibid.; Atlantic Employers v. Tots and Toddlers, 239 N.J. Super. 276, 280 (App. Div.), certif. denied 122 N.J. 147 (1990). To succeed on her motion, Katie was required to: (1) file a timely application to intervene; (2) claim an interest relating to the property or transaction which is the subject of the action; (3) be so situated that the disposition of the action may impair or impede her ability to protect that interest; and (4) show that her interests are not adequately represented by the existing parties to the suit. Unlike permissive intervention, R. 4:33-2, intervention as of right is not discretionary. If the required showing is made, an application for intervention as of right must be granted. Vicendese v. J-Fad, Inc., 160 N.J. Super. 373, 379 (Ch. Div. 1978) (citing 7A Wright and Miller, Federal Practice and Procedure, 1902 at 467).

Unfortunately, the argument before the motion judge, so far as we can tell, did not focus on the requirements of the Rule and the judge did not refer to them, except obliquely, in his oral decision. They are addressed before us only perfunctorily. Rather, the judge and the parties focused on the merits of the application, as if Katie had been permitted to intervene and had filed a motion seeking contribution from her father.

There is little doubt that Katie met the first three requirements; indeed, to the extent the parties have commented on the issue at all, they have focused upon the adequacy of the representation of Katie's interest by her mother in the motion of September 2004.

We do not have the benefit of the judge's full opinion given when denying plaintiff's initial motion to compel defendant's financial contribution, but when he denied the motion to intervene he recalled that he had

... conducted a plenary hearing and I denied the Plaintiff's request to oblige the Defendant to contribute to his daughter's college costs on the basis that the matter had been consented to and was agreed between the parties that in exchange for increased child support he would not have to make any college payments. That was a negotiated bargain for which consideration was paid, there was a detriment to Katie through her mother, but the mother received more child support.

Plaintiff does not appear to argue that her execution of the January 8, 2001, Consent Order was involuntary (although it is difficult to determine on what she based her claim for relief). Nevertheless, she might have, but apparently did not, question the efficacy of her consent and the consequent effect of the Order. Those arguments, however, would have required plaintiff to dispute her own actions.

For example, plaintiff might have argued that, despite her consent, the Order of January 8, 2001, by which defendant was relieved of his obligation to contribute to his daughter's college expenses in return for an increase of the support originally ordered some eight years previously, should not be enforced at all. Moss v. Nedas, 289 N.J. Super. 352, 359 (App. Div. 1996) (a Family Part order will be enforced only to the extent it is fair and reasonable). Plaintiff might have argued that, in the absence of her consent, the eight-year old support order would have been increased judicially, to the level consented to by defendant, without vacating defendant's college obligation. If that were the case, plaintiff might have argued, defendant could not, simply by consenting to the inevitable, absolve himself of his prior commitment. Plaintiff appears not to have raised that issue and the motion judge did not consider it when resolving the initial motion.

Moreover, plaintiff seems not to have recognized, or argued, that if she was impecunious, as defendant's brief seems to recognize, the shifting of the college obligation entirely to her is substantively equivalent to "bargaining away" the child's right to college support. It is well settled that the right to support belongs to the child and that right cannot be destroyed contractually by the parents. Kopack v. Polzer, 4 N.J. 327, 331 (1950); Johnson v. Bradbury, 233 N.J. Super 129, 136 (App. Div. 1989); Pascale v. Pascale, 140 N.J 583, 591 (1995); Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993). Parents may, of course, allocate that support, see Blum v. Ader, 279 N.J. Super. 1, 4 (App. Div. 1994), but a reasonable argument might have been made by plaintiff that her assumption of the entire obligation was, in fact, a contractual destruction of the child's right to support.

Obviously, we do not comment on the merits of these or other arguments that might have been raised. The point is that such arguments require plaintiff to challenge her own actions in executing the Consent Order. It is unrealistic to believe that Katie's interests could have been, or were, adequately represented by a litigant who would be required to argue that the litigant's prior actions were unacceptable.

In fact, the motion judge suggested that plaintiff's actions might subject her to a claim by her daughter. He speculated that:

It seems to me that this young woman may have a cause of action against her mother who bargained away her rights to receive tuition support. She may have a cause of action alleging that her mother couldn't do that or shouldn't have done that, but that would be a separate matter that she files. It really is the breach of a fiduciary duty action, it's a breach of contract action. But the defendant father and the ... [plaintiff] ... mother's matrimonial complaint is not the venue or the vehicle within which that claim may be brought, because among other things the Court's already ruled that the Defendant has no obligation to make payment for Katie's college costs.

This speculation by the motion judge highlights the conflict between plaintiff and her daughter.

Defendant refers us to Martinetti v. Hickman, supra, 261 N.J. Super. 508, and White v. White, 313 N.J. Super. 637, 640-41 (Ch. Div. 1998) for the proposition that children should not intervene when their interests are adequately represented by a parent. We do not quarrel with that proposition. We do not believe, however, for the reasons to which we have alluded, that Katie's interests could have been (or were) adequately represented. In this connection, we repeat that plaintiff has not appealed from the Order denying her motion for contribution by defendant. In the absence of intervention by Katie now, the propriety of that decision cannot be reviewed.

Because we believe Katie has met the requirements of R. 4:33-1, we do not remand this matter to the motion judge for an analysis of the intervention motion, which was the only application he had before him. Accordingly, we reverse the order denying intervention and remand to allow Katie's application to compel support from her father to be heard on the merits.

We reject, as without merit, Katie's request that the matter be remanded to another judge. The motion judge here determined that Katie was bound by her mother's voluntary execution of the January 8, 2001 Consent Order. We have determined that the judge erred in reaching that conclusion without first having heard from Katie. He has not, however, commented on, or considered, the merits of any arguments that Katie may raise. There is no reason to believe that, if he hears the application, he will exhibit anything less than the thoroughness and careful attention to argument that is characteristic of our Family Part judges.

Reversed and remanded.

 

Plaintiff filed the motion resulting in the Order from which the appeal is taken. The motion sought "an Order allowing Katie Mills to intervene ... " and amending the Complaint "adding her as a Party Plaintiff." The resulting Order denied the "application of the parties' daughter, Katie Mills, to intervene in this matter ...." We will treat the original motion, as did the motion judge, as if made by Katie Mills.

We refer to the appellant as "appellant" or "Katie" to avoid confusion with plaintiff and with no disrespect.

Neither the motion nor the transcript of the ensuing hearing is a part of the record on this appeal.

(continued)

(continued)

10

A-1764-04T3

October 20, 2005