BRENDA DIMITRO v. ROBERT DIMITRO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3196-03T3

BRENDA DIMITRO,

Plaintiff-Appellant/Cross-Respondent,

v.

ROBERT DIMITRO,

Defendant-Respondent/Cross-Appellant.

_______________________________

 
Argued Telephonically September 16, 2005 - Decided

Before Judges Kestin, R. B. Coleman and Seltzer.

On appeal from the Superior Court of

New Jersey, Chancery Division, Family Part, Monmouth County, FM-13-979-96C.

Yale L. Greenspoon argued the cause for

appellant/cross-respondent (Greenspoon and

Greenspoon, attorneys; Mr. Greenspoon, on

the brief).

Brian Latimer argued the cause for

respondent/cross-appellant (Jacobowitz,

Grabelle, Defino, Latimer, Fradkin and

Comer, attorneys; Mr. Latimer, on the brief).

PER CURIAM

This opinion considers cross-appeals from two Family Part Orders modifying child support, fixing responsibility for college expenses, denying plaintiff reimbursement of other expenses, and awarding fees. We conclude that discovery and, perhaps, a plenary hearing will be necessary before the support and fee applications may be decided. We also conclude that the motion judge failed to provide a statement of his reasons for the orders entered as required by R. 1:7-4. This failure sufficiently hampers our review of the issues, other than those relating to support and fees, that we are compelled to remand the entire matter for further proceedings consistent with this opinion.

The parties were divorced in 1993, having parented two children. The older, Farah, was born in 1984, and was attending Rutgers University in 2003 when the motions resulting in the Orders from which these appeals are taken were first filed. The younger, Larissa, was born in 1987, and was living with plaintiff, although defendant was entitled, under various orders, to substantial visitation. The record is not clear as to the extent to which that visitation was exercised.

The economic and parenting issues between the parties were originally resolved in a Property Settlement Agreement that was incorporated into the Judgment of Divorce and later modified by a July 25, 1997, Consent Order. The parties had fixed child support at $350 per week. They also obligated themselves to pay for their children's college educations, providing in their agreement that: "After resort to the college fund, if any, and all grants and scholarships available, the parties shall split equally all college expenses of the children."

In 2003, plaintiff filed two motions seeking various relief, including a request for an increase in child support and reimbursement of certain expenses she claims to have made in reliance upon defendant's promise to repay her.

Defendant filed a cross-motion seeking to reduce his child support obligations because he had remarried and fathered two additional children. He also sought an order:

Enforcing the Final Judgment of Divorce by requiring plaintiff to use student loans and any college fund to pay Farah's or Larissa's college costs in accordance with the terms of the Final Judgment of Divorce and supply evidence of such to the defendant as well as supplying defendant with complete access to websites: i.e. FASFA, Rutgers financial aid awards, etc., in order that defendant may view such accounts, before defendant shall make any payments.

Defendant requested, as a corollary to the "enforcement" motion, a $7,000 credit for loans he claimed might have been, but were not, both sought and obtained for the Fall 2002 and Spring 2003 semesters. Finally, he moved to compel plaintiff to supply information about his older daughter and for the award of fees.

The cross-motions were argued on October 3, 2003, and the argument was continued to October 20, 2003, to allow additional submissions. The motion judge made no findings but, instead, generated an Order dated October 20, 2003, that was filed on November 20, 2003.

The Order provided that the July 25, 1997, Consent Order should remain in "full force and effect" and denied the majority of the relief sought, including the cross-motions for modification of child support. The Order did provide that the proceeds of loans would be deducted from Farah's college expenses before her parents would be required to pay those expenses but denied defendant's claim for a credit toward his obligation. It also awarded fees of $3,500 to defendant and contained other additional provisions that are relevant to his appeal. Those specific provisions will be identified in connection with our discussion of the issues generated by them.

Both parties filed motions for reconsideration and defendant sought, as well, enforcement of the October 20, 2003, Order. Those motions were argued on January 2, 2004. At the conclusion of the argument, the motion judge indicated that fees would be assessed against plaintiff because she had violated portions of his October 20, 2003, Order. He indicated that he would determine what portions of the Order had been violated upon further review of the file. He added, without further explanation, that plaintiff's objection to the provisions of the October 20, 2003, Order that added "loans" to the list of deductions from college expenses contained in the Judgment of Divorce was a "frivolous and spurious use of the Courts." The motion judge, again, made no findings of fact but, instead, generated an Order dated January 2, 2004. The Order denied plaintiff's reconsideration motion, granted defendant's motion for reduction of his child support obligation and fixed the amount of that obligation. It also declared plaintiff in violation of litigant's rights and awarded fees of $1,000 to defendant. Finally, it denied defendant's motion for reconsideration of the denial of his request for a $7,000 credit toward his obligation for Farah's college expense.

Plaintiff filed a Notice of Appeal on February 13, 2004, and defendant filed a Notice of Cross-Appeal on March 3, 2004. On March 15, 2004, the motion judge rendered an oral "amplification," presumably pursuant to R. 2:5-1(b).

I

We begin our analysis with the judge's treatment of the cross-motions for modification of defendant's child support obligations. The parties do not dispute that defendant's children from his re-marriage constitute changed circumstances that warrant a re-examination of his support obligation. Martinez v. Martinez, 282 N.J. Super. 332, 341 (Ch. Div. 1995). Accordingly, plaintiff does not object to the motion judge's reconsideration of his October 20, 2003, decision denying defendant's motion to modify his support obligation. She does, however, contest defendant's representations of his current income and the consequent level at which his support was set.

The January 2, 2004, Order resolved the support issue thusly:

2. Defendant's request for reconsideration of 2 of the Court's ... [October] ... 20, 2003 Order regarding his child support obligation is GRANTED. Based upon the financial information provided and the fact that defendant has two additional children from another marriage, defendant's new child support obligation is $185.00 per week, pursuant to the child support guidelines. The amount is allocated $135.00 per week for Larissa, and $50.00 per week for Farah. The new child support obligation shall be made retroactive to September 25, 2003, the date of defendant's original filing. Any credits for which defendant is entitled due to the retroactivity shall be spread out over a reasonable time period, rather than deducted in a lump sum.

The motion judge rejected plaintiff's request for discovery and a hearing, at which she alleged she would be able to show that defendant earned more than was represented in his application. Instead, the judge simply accepted the income information contained in the submissions, applied the Child Support Guidelines, and derived a support amount.

We believe this procedure improperly curtailed plaintiff's right to an accurate support computation.

Whenever there is presented to the court a motion to modify the terms of a judgment and the motion makes a prima facie showing that the moving party is entitled to relief and there are contested issues of fact, the motion should not be disposed of by affidavits, answers to interrogatories and depositions. There should be a plenary hearing. At the conclusion of the plenary hearing, the trial court must find the facts both subsidiary and ultimate and "state its conclusions of law thereon." R. 1:7-4.

[Hallberg v. Hallberg, 113 N.J. Super. 205, 208 (App. Div. 1971).]

At argument before us, defendant asserted that plaintiff is not entitled to discovery respecting his income or to a hearing unless she is able to provide some evidence that defendant's income representations were incorrect. We are unable to find any authority to that effect. Indeed, the purpose of discovery is to allow a party a "reasonable opportunity to obtain facts not available to it other than through formal discovery." Wilson v. Amerada Hess Corp. 168 N.J. 236, 253 (2001). Moreover, absent that opportunity, plaintiff would be without any means to test defendant's assertions and would, necessarily, be forced to accept them.

Accordingly, the issue of the appropriate amount of child support must be remanded for discovery, followed, if necessary, by a hearing to resolve any remaining factual disputes. Because the matter must be remanded, we add the following comments. The parties agree that defendant's child support obligations will be computed in accordance with the Child Support Guidelines, attached as Appendix IX to the Rules Governing the Courts of the State of New Jersey. Support may be computed by use of the Sole Parenting Worksheet (Appendix IX-C) or the Shared Parenting Worksheet (Appendix IX-D). The criteria for selecting the correct Worksheet are contained in Appendix IX-B.

Computing the correct child support amount requires the selection of the correct Worksheet. In this case, the judge selected the Sole Parenting Worksheet without explanation, even though the defendant appears to be entitled to substantial time with, at least, his younger daughter. When the amount of support is computed, the motion judge should provide a statement of his findings and an explanation of his reasons, pursuant to R. 1:7-4, for selecting one Worksheet rather than the other. Of course, the judge will also be required to decide what income should be attributed to both plaintiff and defendant and to explain the basis for his decision.

II

The judge's treatment of defendant's obligation to pay a portion of his daughter's college expenses is integrally related to the support issue. As we have noted, the parties' original agreement required them to divide college expenses equally after "resort to the college fund, if any, and all grants and scholarships available ...." Defendant's initial modification motion, as we have also noted, contained a request that this provision be "enforced" by requiring plaintiff to use loans to pay for college costs. The motion was accompanied by a certification that mentions loans in two paragraphs, but neither paragraph explained why the Property Settlement Agreement required plaintiff to seek loans.

This issue was resolved by paragraph 8 of the October 20, 2003, Order:

8. Regarding college expenses, plaintiff and defendant shall abide by the terms of the Final Judgment of Divorce, 3, which states, "After resort to the college fund, if any, and all grants and scholarships available, the parties shall split equally all college expenses of the children. College expenses shall include tuition, fees, room/board, books, and any other costs specifically incurred as a result from attendance at a particular institution." After all grants, scholarships, loans, and college funds are utilized, all remaining payments shall be made upon receipt of the bill in a timely fashion, to the educational institution when possible, so as not to jeopardize the children's academics or housing opportunities at school. Neither plaintiff nor defendant shall prepay any college expenses without consultation and written consent of the other party. Any other monies necessary for the children's "entertainment expenses" shall be the responsibility of the child.

No explanation was given for the inclusion of the word "loans" in the third sentence of the paragraph. Similarly, the motion judge correctly quoted the Property Settlement Agreement in his March 15, 2005, oral statement: "The Judgment of Divorce ... states 'After resort to the college fund, if any, and all grants and scholarships available, the parties shall split equally all college expenses of the children.'" However, the judge then required that "The terms of the ...[Judgment of Divorce]... shall be followed where each party pays 50 percent of all college expenses, including tuition, fees, room, board, books, et cetera, after all loans, grants, aid and college funds have been exhausted." (emphasis added). There was, again, no explanation for the insertion of the word "loans" and we are unable to determine from whence it was imported. The insertion is all the more puzzling because the judge agreed, with respect to another claim, with defendant who "... does not see any reason to alter agreements that ... [the parties]... have voluntarily entered." In any event, paragraph 8 of the October 20, 2003, Order, although quoting the Final Judgment correctly, provided for the payment of expenses after application of loan proceeds and it is to that provision that plaintiff objects.

We have no doubt that an agreement concerning the allocation of payment for a child's college expenses may be modified judicially under the appropriate circumstances.

Lepis v. Lepis, 83 N.J. 146 (1980). Nevertheless, the basis for that modification must be made clear. Any change in the financial conditions of the parties or in their personal relationships should be considered. The nature of the original agreement should also be analyzed. It might, for example, be less appropriate to modify an agreement that resulted from the parties conscious decision not to burden their daughter with loans under any circumstances than an agreement that simply did not consider the issue. Glass v. Glass, 366 N.J. Super. 357 (App. Div.), certif. denied, 180 N.J. 354 (2004). In any event, the analysis leading to a result must be more than a simple judicial fiat. R. 1:7-4. A failure to provide an explanation for the operative provisions of an order "constitutes a disservice to the litigants, the attorneys and the appellate court." Kenwood Assocs. v. Bd. of Adj. Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976).

III

The same infirmity infects the judge's disposition of defendant's request for a $7,000 credit against his obligation to contribute to Farah's tuition. Defendant explained the basis for his request in his certification in support of his initial application:

I am asking the Court to Order that Farah take student loans in the amount of $2,500.00 per semester and to avail herself of any and all financial aid available to her, including work-study. In 2002-2003, none of these things were done. As such, I am to understand from plaintiff that no significant financial awards were granted to Farah this year, nor was work-study offered to her, nor were there student loans. I would ask the Court to permit me a credit in the amount of aid that would have been available to Farah had plaintiff so applied, for her lack of compliance with the divorce agreement, which does, in fact, compel our daughter and plaintiff to take loans and permit Farah to do work-study. I would ask the Court that the amount of $3,500.00 per semester be deducted from my tuition obligation. The amount of $3,500.00 represents the $2,500.00 student loan awarded Farah per semester and forfeited last year plus $1,000.00 per semester work-study grant, which was also forfeited.

The motion judge denied the request "based on the doctrine of laches." Laches is an equitable doctrine that denies

a party enforcement of a known right when the party engages in an inexcusable and unexplained delay in exercising that right to the prejudice of the other party. ... The core equitable concern in applying laches is whether a party has been harmed by the delay.

[Knorr v. Smeal, 178 N.J. 169, 181 (2003).]

The decision to apply the doctrine depends upon the facts of a particular case, Mancini v. Tp. of Teaneck, 179 N.J. 425, 436 (2004), and involves "weighing the peculiar facts of the case." Lavin v. Hackensack Bd. of Educ., 90 N.J. 145, 157-58 (1982) (Pashman, J., dissenting). The motion judge here did not address any of the facts that would support the application of the doctrine and we are at a loss to explain the basis for his decision, especially since defendant appears to have moved within months of learning that no loans had been secured.

Additional considerations, however, inform our decision to remand this issue. It may be that, on remand, the motion judge will explain that he believed it appropriate to modify the Property Settlement Agreement to require the use of loans as a source of payment for Farah's education, even though the agreement imposed no such obligation. If that is the case, we do not see a basis for imposing an obligation to apply loans to expenses incurred before the modification took place. If, on the other hand, for some reason, the judge explains that the original Property Settlement Agreement required the application of loans, it may be appropriate to grant the credit unless laches is applicable. In that event, the judge would be required to consider the elements of laches.

IV

Plaintiff also appeals from a denial of her request for reimbursement of certain expenses incurred by her on behalf of Farah. The expenses claimed by plaintiff fall into two categories. The first comprised items plaintiff claims were the subject of an oral agreement with defendant. Plaintiff asserts that defendant voluntarily agreed to share the costs of expenses attendant upon Farah's High School graduation and her initial expenses, including moving expenses, at college.

The second category included various medical bills, only one of which was produced. That was a dental bill of $300. The parties dispute the nature of the bill and whether it is included in the obligation of the parties to bear uninsured medical expenses. This category also included: a claim for a salary check alleged to have been taken by defendant; $2,500 representing the proceeds of the sale of Farah's car by defendant but not delivered to Farah; and a claim for $415 incurred by Farah because defendant had failed to provide housing on a trip as he had promised.

The operative provisions of the October 20, 2004, Order relating to these claims were paragraphs 6 and 9:

6. Plaintiff's request for expenses incurred as per the October 7, 1993 and the July 25, 1997 Order is DENIED. Plaintiff has failed to clearly prove what expenses she has incurred. Moreover, 13 of the 1997 Order states, "The parties will not be compelled to make any additional contributions for the children's activities unless they voluntarily wish to do so."

9. Plaintiff's request for college moving expenses is hereby DENIED for failure to provide proof of such expenses.

It thus appears that the judge denied these claims on the grounds that prior orders provided that defendant could not be compelled to pay additional sums and that, in any event, plaintiff failed to prove the existence of the expenditure.

As to the former basis, the judge recognized that the July 25, 1997, Order prohibited compelled payments but explicitly allowed the parties to reach a voluntary agreement. Plaintiff asserted that such a voluntary agreement was reached with respect to these expenses. So far as we can determine from this record, defendant never denied the allegation. At the very least, plaintiff was entitled to a hearing at which the credibility of her assertion regarding the existence of a voluntary assumption of responsibility could be assessed.

As to the latter basis, the record indicates that all of the expenses claimed by plaintiff were identified in "Document 6" annexed to her certification in support of her initial motion. We believe that this assertion is sufficient to require defendant to accept the claim, reject the claim, or seek discovery to test the bona fides of the claim. The motion judge's rejection of plaintiff's claim is tantamount to making a credibility determination on an affidavit. Said another way, the motion judge must have opined either that the plaintiff's testimony (as presented in her certification) was false or that her testimony was insufficient. There is no basis for concluding that plaintiff's testimony was insufficient to raise the issue, and a determination that her certification was false is simply improper. Hallberg v. Hallberg, supra, 113

N.J. Super. at 208. Such a finding may be made only after defendant determines whether to contest the amount of each item and, if so, after a hearing if the issue cannot be resolved on motion.

V

The final issues raised on this appeal relate to the motion judge's determination that plaintiff was in violation of litigant's rights with respect to four provisions of the October 20, 2003, Order, his award of $3,500 in fees to defendant on the initial application, and his award of $1,000 in fees to defendant on the reconsideration and enforcement motions.

The October 20, 2004, Order resolved defendant's request for information by these paragraphs:

20. The parties' daughters shall sign a release to Rutgers or any other college or university to provide transcripts of their grades, tuition, and other college related bills and financial aid awards until their graduation before defendant is required to pay same. Proof and current pass codes to all pertinent websites shall be supplied to defendant on an ongoing basis before payment by defendant shall occur.

21. Plaintiff and defendant shall provide the other party with any information pertaining to all of the accounts each may hold for the children within 7 days of this Order.

22. Plaintiff shall supply defendant with the current address and telephone numbers for Farah at Rutgers within 7 days of this Order.

The judge determined that plaintiff had violated four provisions of his October 20, 2004, Order. He identified the failings in his March 15, 2004, statement:

The following four applications for relief . . . [are where]. . . she was to provide Farah's address and telephone number at school pursuant to Paragraph 22 of the order ... She was to provide Farah's transcripts and grades for the fall 2002 semester, ... pursuant to Paragraph 20 of such order and to provide copies of Farah's awards, grants, FAFSA filings, work study grants and student loan information from the fall 2002 to the present, pursuant to Paragraph 8 of that order and to provide copies of all other accounts for the children in the wife's possession pursuant to Paragraph 21 of said order, none of which were done.

We note initially that paragraph 8, supra, pp. 9-10, dealt only with whether loan proceeds should be considered in fixing the amount of the parties' respective college expense contribution. The paragraph does not order plaintiff to do anything and it is difficult to tell in what manner she violated the provisions of Paragraph 8.

We assume the judge was referring to paragraph 16, at least with respect to plaintiff's obligation to provide information and access. Paragraph 16 does not require applications for loans, but does require that:

Plaintiff shall provide defendant with copies of all scholarship, grant, and loan applications with a current status for the ... college education expenses within 7 days of receipt of such. If website access is available, plaintiff, or the child, shall provide defendant with the ability to access the accounts.

The judge found plaintiff had failed to comply with this provision. He said

The wife asserts that the web site will give husband access to everything he wants, such as statements of the account for all semesters, financial aid with social security number, transcripts, citing her Exhibit F. The Court finds this is not compliance with the Court's order. The wife must supply the information, not an avenue for access.

A fair reading, however, of paragraph 16 would permit the information to be conveyed by web access and the judge did not further explain his finding of non-compliance with either paragraph 8 or 16.

Paragraph 20 requires Farah to execute a release to allow defendant to obtain certain information. The motion judge had evidence before him that access, available to defendant, provided the information requested, but he did not comment on that evidence. Moreover, he did not comment on the structure of the paragraph which is directed to Farah. By its terms it does not require plaintiff to do anything and it is hard to understand how she can have failed to obey an Order that does not purport to bind her.

Paragraph 21 requires the parties to disclose the existence of any accounts held for the children. The judge explained, in his March 15, 2005, statement, that

Regarding accounts for the children, the husband believes that there are joint bank accounts between the wife and each child. The wife states that there ... [are] ... not and therefore, if there are, she should be provide husband with an accounting of such. If there are not, there are not.

No finding was made that plaintiff held accounts and had failed to disclose them. We can discern no basis for a finding that plaintiff violated the provisions of paragraph 21.

We have considered simply reversing the finding of violations of paragraphs 8 (or 16), 20, and 21. We have determined, however, that since the Orders generating this dispute must be reversed and the issues remanded, it is appropriate to allow the judge to reconsider these findings as well. It may be that there is a basis, not apparent to us from this record, that would justify the orders respecting plaintiff's violation of the prior order. If so, the judge should explain the underpinnings for his Order. R. 1:7-4.

Finally, plaintiff admits that she has failed to provide defendant with Farah's phone number as required by paragraph 22. She claims that she withheld the information at Farah's request, but that does not excuse the failure to obey the Order. Roselle v. Mayor and Council of Borough Moonachie, 48 N.J. Super. 17, 24-25 (App. Div. 1957), reaffirmed 49 N.J. Super.

35 (App. Div. 1958). It would have been appropriate to seek to vacate that portion of the October 20, 2003, Order or to appeal it. Having failed to do either, plaintiff cannot object to the finding that she did not comply. Nevertheless, on remand, the judge may, if he deems it appropriate, reconsider his ruling in light of the explanation for her failure, which was proffered by plaintiff for the first time on January 2, 2005.

Lastly, we address the award of fees. Although the motion judge recognized the factors governing the award of fees set out in R. 5:3-5 and Williams v. Williams, 59 N.J. 229, 233 (1971), he did not relate those factors to the dispute before him. Accordingly, we are unable to determine if each award was appropriate or, if so, whether the amount of each award was appropriate. On remand, findings justifying whatever award is ultimately given must be made. To the extent that R. 1:10-3 justified any of the fees awarded by the January 2, 2004, Order, the judge should determine what portion of the award was attributable to the enforcement motion and what portion was attributable to the reconsideration motion.

We recognize that the motion judge was faced with a host of competing claims and that his consideration of them was made more difficult by an overly complex presentation by plaintiff, who was then appearing pro se. Nevertheless, as we have explained, the litigants and this Court, as well as our system of resolving disputes, deserve a reasoned explanation for the entry of orders that, in the final analysis, will impact the lives of the litigants.

 
Affirmed in part, reversed in part, and remanded.

The transcript of the proceeding indicates that it took place on October 30, 2003, but all parties agree that the date was October 20,2003. The memorializing Order was dated October 20, 2003.

(continued)

(continued)

21

A-3196-03T3

November 30, 2005