CATHY S. ETTINGER v. RONALD B. ETTINGER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1862-04T51862-04T5

CATHY S. ETTINGER,

Plaintiff-Appellant,

v.

RONALD B. ETTINGER,

Defendant-Respondent.

____________________________

 

Submitted October 3, 2005 - Decided

Before Judges Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FM-04-1438-96.

Cathy S. Ettinger, appellant pro se.

Ronald B. Ettinger, respondent pro se.

PER CURIAM

This is a matrimonial case. Plaintiff Cathy S. Ettinger appeals from two orders of the trial court, dated May 14, 2004 and November 5, 2004. The May 14 order denied her request to convert rehabilitative alimony to permanent alimony and denied her application for reimbursement for their son Jeffrey's freshman year tuition, but ordered defendant, Ronald Ettinger, to pay 75% of Jeffrey's college expenses net of any loans and scholarships beginning with the 2003-04 school year, and denied plaintiff's application for counsel fees. The November order reduced Ronald's child support obligation for Jeffrey. We affirm both orders as they relate to the issues of alimony, child support, retroactive tuition payments, and counsel fees.

I

The parties were divorced in 1997 after eighteen years of marriage. They have two children, Robert, who was born in 1981, and Jeffrey, who was born in 1984. Plaintiff had primarily been a homemaker during the marriage, while defendant was a corporate executive. Prior to the divorce, plaintiff was evaluated by a vocational specialist, who opined that she could earn between $15,000 and $18,720 per year, and as much as "the mid-twenty thousand dollar range within several years." After lengthy negotiations the parties entered into a property settlement agreement (PSA). Pursuant to the PSA, defendant would pay plaintiff seven years of rehabilitative alimony, after which his alimony obligation would cease. In the first five years after the divorce, plaintiff's earnings were consistent with the vocational specialist's predictions. However, in 2002, she obtained employment with a charitable foundation that paid her $37,621. In 2004, she earned $43,779 at the same job. She was laid off in 2004.

On December 15, 2000, following the filing of motions, the trial court entered an order directing defendant to pay 75% of Robert's college expenses and plaintiff to pay 25% of the expenses. That order also set child support for the two children at "$316.00 per week based upon one child being in college." The court declined to modify "the current alimony order."

In 2004, plaintiff filed a motion for several forms of relief. We will discuss here only those which are relevant to this appeal. Plaintiff sought to convert the rehabilitative alimony into permanent alimony and to require defendant to increase alimony. She contended that she was unemployed and had been unable to find work and that defendant was affluent and could afford to continue to pay alimony. She also sought to require defendant to pay for Jeffrey's college tuition, and asked that he be required to reimburse her for her payment of the tuition for the previous year. Defendant contended that plaintiff's unemployment was temporary and did not justify permanent alimony. He also contended that he had refrained from seeking a reduction in child support during the past year, even though both children were in college, and that he expected that the child support he was paying would be applied in part to Jeffrey's tuition. He sought a reduction in child support because both children were in college. He also sought to raise the issue of plaintiff's alleged cohabitation with a significant other.

In an oral opinion placed on the record on May 14, 2004, the trial judge denied plaintiff's application for permanent alimony. He concluded that her earnings history had met, and even exceeded, the parties' expectations at the time they negotiated the PSA, that she had not established that her unemployment was anything but temporary, and that these factual circumstances did not warrant a modification of the PSA to require permanent alimony. He likewise declined to increase the rehabilitative alimony, which under the PSA was to cease in June 2004. The judge ordered the parties to pay Jeffrey's tuition in the same 75-25 ratio that they had contributed to Robert's tuition under the 2000 order. He also ordered that Jeffrey and Robert each pay $5,000 toward their tuition from an existing college fund. He declined to order that either party reimburse the other for the prior year's tuition or for overpayments in child support, reasoning that the parties had waived the right to such relief by failing to make a timely application. The judge also noted that the 2000 order gave defendant the right to have a plenary hearing on the issue of cohabitation, but he had waived that opportunity. He directed both sides to file updated financial information on the issue of child support. He denied plaintiff's application for counsel fees, finding no bad faith on either side.

In a subsequent order dated November 5, 2004, the trial court reduced defendant's alimony payments to $175 per week based on factual findings recited in the body of the order. Those facts included Jeffrey's status as a full-time college student, thereby justifying a departure from the child support guidelines, N.J.S.A. 9:17-53(e), the parties' respective earning capacities, Jeffrey's part-time job with an imputed income of $5,000 per year, defendant's obligation to pay 75% of Jeffrey's college expenses, and "[t]hat both parties contribute to Jeffrey's pocket money and miscellaneous expenses."

II

On this appeal, plaintiff contends that the trial court erred in denying her application for permanent alimony, in denying her application for reimbursement of Jeffrey's freshman year tuition, in reducing child support and in denying her application for counsel fees. Having reviewed the record, we conclude that her arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons stated in the trial court's oral opinion of May 14, 2004, and the November 5, 2004 order. We add the following comments.

We recognize that under appropriate circumstances, an award of rehabilitative alimony can be converted to an award of permanent alimony, where there is "no reasonable likelihood . . . [that the moving party will] be able to achieve economic self-sufficiency in the future." Milner v. Milner, 288 N.J Super. 209, 216 (App. Div. 1996). In this case, the parties knew when they entered into the PSA that plaintiff had limited earning capacity, but she nonetheless agreed to limited alimony as part of a comprehensive economic agreement. Further, plaintiff far exceeded predictions concerning her earning capacity, and she did not establish that her unemployment was more than temporary. She did not establish the changed circumstances necessary to justify a change in alimony. See Lepis v. Lepis, 83 N.J. 139, 151 (1980); Milner, supra, 288 N.J. Super. at 214; N.J.S.A. 2A:34-23(d).

We also find no error in the trial court's denial of plaintiff's application to be reimbursed for a portion of Jeffrey's freshman year tuition. During that same year, plaintiff was continuing to receive child support for both children, although they were both in college at the time. As the trial judge noted, plaintiff could have filed a timely motion to require defendant to pay a share of tuition, and defendant could have filed a timely motion to reduce his child support obligation. Further, had the trial court permitted plaintiff to seek a retroactive adjustment for tuition payments, defendant might also have sought a retroactive adjustment due to his allegation that plaintiff was cohabiting with a significant other during that time period. We find no abuse of discretion in the trial court's determination to deny relief to both parties due to their failure to make timely applications for relief. See Raynor v. Raynor, 319 N.J. Super. 591, 605 (App Div. 1999).

We decline to address the issue of whether Jeffrey should be required to take additional loans to pay for his college education, because that issue is moot with respect to the 2003-04 and 2004-05 school years, and it is still under consideration by the trial court with respect to later years. In her reply brief, plaintiff brought to our attention an application filed by the defendant in May 2005, seeking to reduce his obligation to pay Jeffrey's college expenses for the 2003-2004 and 2004-05 school years due to Jeffrey's alleged failure to obtain available loans. In an order dated June 3, 2005, the trial court denied defendant's motion, but reserved judgment with respect to the 2005-06 school year. We will not address the issue of the 2005-06 expense, since it has not been addressed by the trial court and neither party has appealed the June 3, 2005 order.

We find no abuse of discretion in the court's decision to decrease the level of child support, for reasons amply justified in the order of November 5, 2004. And we find no abuse of discretion in the denial of counsel fees. See Martindell v. Martindell, 21 N.J. 341, 355-56 (1956); R. 5:3-5(c).

 
Affirmed.

Jeffrey took a $2,250 loan in the 2003-04 school year and no loans in 2004-05. Neither party has supplied us with the transcript of the oral argument on the motion or with any statement of reasons which the court may have issued for the June 2005 order. Arguably, the trial court lacked jurisdiction to entertain defendant's motion because of the pending appeal, unless the motion was deemed to be an application to enforce the court's May 14, 2004 order. It is not clear whether the May 2004 order obligated Jeffrey to apply for loans. That issue may be clarified by the trial court should defendant pursue the issue with respect to the 2005-06 school year.

(continued)

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A-1862-04T5

October 19, 2005