KATHI MCGOVERN v. KEVIN MCGOVERN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1260-05T11260-05T1

KATHI MCGOVERN,

Plaintiff-Respondent,

v.

KEVIN MCGOVERN,

Defendant-Appellant.

____________________________________

 

Submitted October 31, 2006 - Decided December 15, 2006

Before Judges Holston, Jr. and Grall.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Morris County, FM-14-663-03.

Ulrichsen, Rosen & Freed, attorneys for

appellant (Derek M. Freed, on the brief).

Berman Rosenbach, attorneys for respondent

(William J. Berman, on the brief).

PER CURIAM

Defendant Kevin McGovern appeals from two post-judgment orders entered in this divorce case. The first order denies "with prejudice" his application to modify the support provisions of the final judgment of divorce. The second order requires him to pay a portion of the counsel fees that his former wife, plaintiff Kathi McGovern, incurred in enforcing the judgment and opposing his motion for modification. Although we amend the order to clarify that there is no bar against future modifications based on changed circumstances, we otherwise affirm substantially for the reasons stated by Judge McCarthy.

The McGoverns married on May 11, 1985. They have three sons. The oldest was born in April 1987 and the youngest in September 1991. On December 21, 2001, the McGoverns separated and executed a marital settlement agreement. On December 18, 2002, they amended the agreement, and it was incorporated in their final judgment of divorce entered that day.

The McGoverns' agreement states the following support obligations. Defendant must maintain health insurance for plaintiff and the children. In addition, he must pay alimony in the amount of $1425 per month plus one-half of the first $40,000 of his annual bonus and child support in the amount of $1500 per month per child.

The parties also addressed college expenses in that agreement. They agreed to deposit one-third of the proceeds from the sale of the marital residence in a "trust" dedicated to their children's education and to continue child support for any child in college. Plaintiff must pay the cost of "food plans, clothing and accessories" of any child who attends college, and defendant must pay "all costs related to college" other than those assigned to plaintiff.

The agreement also allocates counsel fees in the event of post-judgment litigation. On applications to modify the agreement, "the party that is attempting the modification is responsible in full for any and all legal fees acquired [sic] by the other." If there is litigation to enforce the agreement, "the party in default shall be responsible for any and all legal fees acquired [sic] by the other."

Defendant's earnings during the relevant periods were as follows. When the parties negotiated their agreement in December 2001, defendant was employed by Merrill Lynch as a financial controller/accountant. In 2001, he earned a salary and bonus in the amount of $235,586. In 2002, the year of the divorce and amended agreement, defendant was paid a total of $208,900. In 2003, his total earnings were $228,059, and in 2004, his total earnings were $225,146.

The McGoverns' oldest son completed his junior year of high school in 2004. On August 11, 2004, plaintiff wrote to defendant about the child's college education. She reported the child's interest in various colleges and universities and explained that she was "interested in having [the child] see what [schools defendant] thought might be a good fit." She outlined her plans for taking the child to see various schools. On September 27, 2004, defendant sent his son a list of the schools that he recommended. The schools defendant named included Columbia, New York University, Harvard, Georgetown, Notre Dame, Cornell and the University of Pennsylvania, at a cost ranging from $35,310 to $38,440.

On November 14, 2004, defendant obtained a court order that required plaintiff to consult with him before permitting their son to apply to a college. On November 21, 2004, he wrote to plaintiff. Defendant reported that the child was speaking to him about college, but he warned that he did not have the resources to pay the full expense. The child was admitted to the University of Scranton's class of 2009 and was awarded grants and loans in the amount of $10,525 for his first year.

In July 2005 plaintiff filed a motion to compel defendant to meet his obligations under the final judgment of divorce. Defendant filed a cross-motion to modify his support obligations. The pay stubs defendant submitted in support of that motion showed payments of salary and bonus at a rate that would yield income of approximately $233,000 in 2005.

Relying on Lepis v. Lepis, 83 N.J. 139 (1980), Judge McCarthy found that defendant failed to establish a prima facie case of change in circumstances warranting modification of defendant's obligations under the final judgment. By order of September 30, 2005, he denied defendant's request to modify and granted plaintiff's request to enforce the agreement.

On November 3, 2005, the judge entered an order requiring defendant to pay counsel fees and costs in the amount of $6661. Based on the parties' financial circumstances, respective ability to pay and contribute to counsel fees, the reasonableness of the positions asserted and the degree to which plaintiff incurred fees to enforce the judgment, the judge concluded that an award of fees was consistent with the parties' agreement and warranted by Rule 5:3-5(c)(1)-(3), (8). The judge considered fees and costs in the amount of $7950 and reduced the amount to $6661 to eliminate charges that he found duplicative or excessive.

Defendant raises four issues on appeal:

I. The Appellant's Alimony and Child

Support Obligations Must Be Modified

II. The Trial Court Should Have Held A

Plenary Hearing To Determine The

Parties' Obligations With Regard To

[Their Son's] College Tuition And

Expenses

III. The Trial Court Erred In Awarding

Counsel Fees To Respondent

IV. The Denial "With Prejudice" Of

Appellant's Cross-Motion Was Erroneous

With the exception of the issue raised in Point IV, the arguments lack sufficient merit to warrant discussion in a written opinion, and we affirm. See R. 2:11-3(e)(1)(E). With respect to the issue raised in Point IV, we question whether it is reasonable to read the phrase "with prejudice," which appears in paragraph eleven of the September 30, 2005 order, to foreclose future applications based on new allegations of changed circumstances. Nonetheless, both parties construe the language in that manner. For that reason, we amend the order to eliminate the phrase "with prejudice" and thereby avoid unnecessary litigation in the future.

Affirmed as modified.

 

While the judge's factual findings are less detailed than required, our review leads us to conclude that the findings are supported by the record and that the fees, as reduced by the judge, are reasonable.

(continued)

(continued)

6

A-1260-05T1

December 15, 2006