ELIZABETH M. WILLIAMSON f/k/a ELIZABETH VEGLIANTE v. STEVEN V. VEGLIANTE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5619-04T55619-04T5

ELIZABETH M. WILLIAMSON

f/k/a ELIZABETH VEGLIANTE,

Plaintiff-Appellant,

v.

STEVEN V. VEGLIANTE,

Defendant-Respondent.

_______________________________________

 

Argued March 29, 2006 - Decided May 1, 2006

Before Judges Parker and Grall.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Passaic County, FM-16-816-95.

Thomas R. Williamson, III argued the cause

for appellant.

Thomas R. Raimondi argued the cause for

respondent (Afflitto, Raimondi & Afflitto,

attorneys; Mr. Raimondi, on the brief).

PER CURIAM

Plaintiff Elizabeth Williamson appeals from an order of the Family Part denying reconsideration of a post-judgment order increasing defendant Steven Vegliante's child support obligation. That order also requires her to pay $600 for defendant's counsel fees on the motion for reconsideration. Because the orders in place are supported by the record, consistent with controlling legal principles and well within the discretion of the trial judge, we affirm.

There has been extensive post-judgment litigation in this matrimonial case. The procedural history and facts pertinent to the issues on this appeal are as follows.

Plaintiff and defendant have four children. The parties were divorced on February 5, 1996. Pursuant to the final judgment of divorce, which incorporates their agreement, plaintiff has primary residential custody and defendant pays child support in the amount of $350.00 per week and maintains medical insurance for the children. The parties agreed to divide equally the children's unreimbursed medical expenses and "contribute to their children's college expenses, as their then economic situation allow[]."

By order entered in May 1998, defendant's child support was reduced to $300.00 per week, and he was required to contribute $5,000 per year to the cost of their eldest daughter's college education. In 2002 defendant sought further reduction of his child support obligation. Child support was reduced to $245 per week due to the emancipation of the eldest child. Plaintiff appealed, and we remanded for further proceedings. Williamson v. Vegliante, No. A-2006-02 (App. Div. Dec. 5, 2003) (slip op. at 4-6).

Following remand, the trial judge entered a discovery order and subsequently denied plaintiff's motion for reconsideration of that order. Plaintiff filed a motion for leave to appeal, which we denied. A hearing was held, and on March 21, 2005, the trial court issued an order and written decision.

Plaintiff and the three unemancipated children live in the State of Georgia with her current husband, who is a patent attorney and licensed to practice in this State. At the time of the hearing plaintiff had custody of the children: twin daughters who were fifteen years of age and a twenty-one year old son. The twins spend six weeks of the year with defendant: thirty days in the summer; visitation on holidays; and a week during spring break.

Plaintiff gave general testimony about expenses for the twins that were increasing as they matured. She noted the need to buy them a car, obtain car insurance and the cost of extra-curricular activities. However, with the exception of a reference to $400 for lacrosse, she did not quantify the costs. She testified that she had a list of extraordinary expenses, but she did not produce that list or any other evidence. She acknowledged that defendant had given the twins the money necessary to pay for their mandatory driver-education courses.

The parties presented the following information about their income. Although plaintiff did not provide information documenting her income at the time of the hearing, the judge accepted her testimony subject to her providing documentation. She testified that she earned $1,000 per week and had a pension plan to which she was not required to contribute. Defendant produced his most recent tax returns and pay stubs. While plaintiff suspected that defendant had income from rental property, he reported a loss of income on that property on both his 2002 and 2003 tax returns. His final pay stub for 2004 showed wages and a bonus in the total amount of $62,905. Defendant also produced documentation that explained that his income for the year 2000 was $55,765.20, an amount not clear from review of the income documentation presented to this court on the prior appeal. Williamson, supra, slip op. at 4-6.

Plaintiff also testified about college expenses for the parties' son. He was attending school full time at Southern Poly-Technical University, having transferred from the University of Georgia. He had not spoken to his father for several years. Defendant was unaware of his son's transfer and knew nothing about his courses, grades or applications for financial aid. He acknowledged that plaintiff had sent him copies of eligibility forms documenting his son's full-time college attendance for purposes of medical insurance coverage.

The judge prepared a written decision. He addressed this court's questions about defendant's income in the year 2000 and demonstrated that the income utilized in the prior child support award was accurate. The judge also addressed the evidence relevant to current child support. The taxable income the judge utilized in the child support calculation is consistent with the testimony and evidence: $1,000 per week for plaintiff and $1,210 ($62,900 per year (wages plus bonus)) for defendant. After taxes, plaintiff has 48.04% and defendant has 51.96% of the parties' combined net income. The judge awarded support in the guidelines amount, $262 per week, effective March 21, 2005.

The judge denied, without prejudice, plaintiff's application for contribution to expenses associated with their son's college education. The judge's decision clearly explains that plaintiff had not provided sufficient information to permit him to make a decision in accordance with Newburgh v. Arrigo, 88 N.J. 529 (1982). The judge noted that he had included all three children in setting the total child support award pending further order. The judge denied plaintiff's request to increase the child support amount to include the cost of a car, car insurance and extracurricular activities on the ground that such expenses are included in child support awards calculated in accordance with the Child Support Guidelines.

The judge continued the parties' agreement to share unreimbursed medical expenses equally. In recognition of the fact that child support calculated pursuant to the guidelines includes $250 per year per child for unreimbursed medical expenses, the judge provided for equal sharing of expenses in excess of that amount. The judge also ordered defendant to contribute $652.68 toward expenses plaintiff incurred in traveling to New Jersey for a deposition and hearing that were adjourned at defendant's request.

Plaintiff filed a motion for reconsideration of the judge's order. She objected to the following: calculation of defendant's current income (including failure to consider his bonus, rental income and a third party's payment of counsel fees); the judge's failure to apply a cost-of-living adjustment for the period between August 1, 2001 and March 21, 2005; her obligation to pay the first $250 per year of unreimbursed medical expenses; and, the judge's failure to increase the child support award to include the cost of car insurance for the twins. She included, for the first time in that motion, information about college expenses, insurance and the value of defendant's rental property that she had not provided at the hearing. Defendant filed a cross-motion for attorney's fees on the motion.

The judge denied plaintiff's motion and ordered plaintiff to pay counsel fees to defendant in the amount of $600.00. He provided his reasons for the denial by way of annotation to the order. The judge referenced plaintiff's failure to provide a factual basis for the relief requested and cited to the appendix to the court rules explaining that the child support guidelines amount includes $250 per year per child for unreimbursed medical expenses. See Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2306.

Plaintiff filed a notice of appeal, and the judge supplemented his decision as authorized by R. 2:5-1(b). In his supplemental decision, the judge explained that the order would be amended to include reference to cost of living adjustments that are mandated where, as here, child support is paid through the Probation Department. See R. 5:6B; N.J.S.A. 2A:17-56.9a.

Plaintiff raises the following arguments for our consideration on appeal:

I. THE TRIAL COURT ABUSED ITS DISCRETION

BY AWARDING ATTORNEY FEES TO DEFENDANT,

NOTWITHSTANDING PLAINTIFF'S CLEARLY

ARTICULATED BASES IN THE MOTION TO

RECONSIDER.

A. The Trial Court plainly erred

in holding that the parties

had agreed that Plaintiff

would pay the first $250.00 of

unreimbursed medical expense,

and even had to change its

reason in the Order of May 17,

2005 on Plaintiff's Motion to

Reconsider, thereby clearly

demonstrating that Plaintiff

had the required basis for her

Motion to Reconsider.

B. The Trial Court failed to

include R. 5B:6 cost of living

increase language in its Order

of March 21, 2005, and the

Trial Court again stated in

its Order of May 17, 2005, on

the Motion to Reconsider that

Plaintiff had no basis. The

Trial Court has now recognized

its error, demonstrating that

Plaintiff had clear basis for

her Motion to Reconsider.

Notwithstanding, the Trial

Court abused its discretion by

awarding attorney fees against

Plaintiff.

C. Although the Trial Court

clearly "denied" Plaintiff's

request to reconsider college

costs in its Order of May 17,

2005, the Trial Court has now

stated that it meant to deny

college costs 'without

prejudice,' showing once again

that Plaintiff had clear basis

for her Motion to Reconsider

and that the Trial Court

abused its discretion by

awarding attorney fees.

D. In calculating child support,

the Trial Court erred in not

including any bonus of

Defendant, and denied

Plaintiff discovery to show

imputed income. The record

shows that the Trial Court

utilized only Defendant's base

salary for child support

calculation, and, thus,

Plaintiff showed basis for the

Motion to Reconsider and the

award of attorney fees was

abuse of discretion.

E. The trial court did not show

that it considered that

Georgia allows children to

drive earlier than New Jersey.

II. THE TRIAL COURT ERRED IN FACT, ORDERED

CONTRARY TO THE PARTIES' EXPRESS

AGREEMENT, AND CHANGED THE PSA

NOTWITHSTANDING PREVIOUS INSTRUCTIONS

FROM THE APPELLATE DIVISION THAT THERE

WAS NO REASON TO DO SO.

III. THE TRIAL COURT HAS NOW ADMITTED THAT

IT ERRED IN LAW IN NOT ORDERING COST OF

LIVING PER R. 5B:6, THE ERROR HAVING

BEEN CLEARLY POINTED OUT BY PLAINTIFF

IN HER MOTION TO RECONSIDER. ONCE THE

TRIAL COURT AMENDS ITS ORDER, THIS WILL

BE RENDERED MOOT.

IV. THE TRIAL COURT HAS NOW STATED, VIA

R. 2:5-1(B) LETTER, THAT IT WILL

CONSIDER A MOTION FOR COLLEGE EXPENSES,

ALTHOUGH IT HAD DENIED SAME PREVIOUSLY

IN THE ORDER OF MAY 17, 2005. SINCE

ALL THE FACTS AND EVIDENCE ARE BEFORE

THE APPELLATE DIVISION, DEFENDANT ASKS

THE APPELLATE DIVISION TO REVERSE THE

DENIAL AND AWARD COLLEGE EXPENSES.

V. THE TRIAL COURT DID NOT INCLUDE

DEFENDANT'S BONUS INCOME IN CALCULATING

CHILD SUPPORT AND DENIED PLAINTIFF

DISCOVERY TO SHOW IMPUTED INCOME. THE

TRIAL COURT ABUSED ITS DISCRETION BY

NOT PERMITTING DISCOVERY, WHICH IS A

MATTER OF RIGHT.

VI. THE TRIAL COURT DID NOT CONSIDER THAT

GEORGIA ALLOWS CHILDREN TO DRIVE

EARLIER THAN NEW JERSEY.

The decision to award counsel fees is one left to the sound discretion of the trial judge. Loro v. Del Colliano, 354 N.J. Super. 212, 227 (App. Div.), certif. denied, 174 N.J. 544 (2002). Pursuant to R. 5:3-5(c), the judge should consider the following factors:

(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.

[Ibid.]

While the judge did not articulate his findings with any detail, we recognize that this motion for reconsideration followed a detailed decision that addressed many of the pertinent factors, and for that reason neither this court nor the parties were left to speculate about the basis for the court's ruling. Cf. Clarke v. Clark ex rel. Costine, 359 N.J. Super. 562, 572 (App. Div. 2003). Our review of the record and the judge's decisions on the hearing and the motion for reconsideration convinces us that he did not abuse his discretion.

The parties have nearly equivalent net income. Plaintiff appeared pro se and incurred no counsel fees during the hearing or on the motion for reconsideration. In contrast, defendant incurred counsel fees in the amount of $600 on the motion for reconsideration alone. In addition, defendant had been required to contribute to transportation expenses incurred by plaintiff as a result of an adjournment he requested.

This motion for reconsideration followed a hearing at which plaintiff had the opportunity to present evidence in support of her claims. Yet, her motion for reconsideration included evidence and arguments that she neglected to present at the hearing. Her failure to bring her income information to the hearing further complicated the proceeding.

Plaintiff's objections to the judge's rulings raised in the motion for reconsideration were totally lacking in merit when considered in light of the evidence presented and arguments raised at the time of the hearing. Our consideration of each of the arguments that plaintiff raises on appeal and offers to demonstrate that her positions were reasonable and asserted in good faith convinces us that the motion for reconsideration was unnecessary.

The trial judge's ruling on unreimbursed medical expenses was proper and in fulfillment of the parties' agreement to share equally all unreimbursed medical expenses. The parties reached that agreement when they divorced in February 1996. The child support guidelines "were substantially revised effective September 1, 1997." See Pressler, supra, comment on R. 5:6A at 1932. The basic child support award under the new guidelines includes $250 per year per child for unreimbursed medical expenses. Pressler, supra, Appendix IX-A to R. 5:6A at 2306.

Contrary to plaintiff's claim, if the judge had not required her to pay the first $250 of unreimbursed medical expenses, the expense would not have been divided as the parties envisioned. Plaintiff would have received $130 per year per child toward that expense and defendant would have been given no credit for the payment. Because $250 per year per child for uninsured medical expenses is a component of the basic child support award, it is shared. The basic child support amount is divided between the parties in accordance with their percentage share of combined net income. Pressler, supra, Appendix IX-B to R. 5:6A at 2236. As noted above, plaintiff and defendant have net income that is nearly equivalent; plaintiff has 48.04% of the combined net income. Thus, under the judge's order, plaintiff is responsible for 48.04% of the $250 amount ($120) and defendant is responsible for 51.96% ($130). But payments need not change hands to effectuate that division, which is accomplished through calculation of the basic child support that defendant must pay plaintiff.

Plaintiff's objection to the provision of the order addressing medical expenses is based on her misunderstanding of the guidelines. The order requires defendant to pay a minimal amount over his 50% share, $5 per year per child. That amount is not significantly different than the parties' agreement, and, to the extent that there is an inconsistency, it benefits plaintiff not her former husband. The judge took an equitable and practical approach to the problem; one that avoids the need for plaintiff to request contribution from defendant until expenses exceed $250 per year. If expenses do not reach that level, plaintiff is free to spend the allocated amount as she sees fit. An order that strictly complied with the parties' agreement on medical expenses would have required a $750 per year ($250 per year per child) reduction of the total basic child support amount and routine communications over minor unreimbursed medical costs. Plaintiff's objection to the judge's equitable order that reduced the potential for future disagreements is not reasonable.

Plaintiff's second claim, failure to include reference to statutory cost of living adjustments, is raised for the first time on appeal. The argument plaintiff raised on motion for reconsideration was different from the one raised here. On her motion for reconsideration, plaintiff assumed that cost of living adjustments were automatic and that the court erred in not awarding such adjustments retroactively. Cost of living adjustments are not automatic. See R. 5:6B. Plaintiff does not pursue this issue on appeal, which indicates that she too recognizes that the objection that she raised below was not valid. While the reference to cost of living adjustments should have been included in the order, the omission was technical in nature and did not require or justify the complex motion presented below. See ibid.

Plaintiff's third claim is that the judge's initial order denied her request for contribution to college expenses with prejudice. That claim is simply wrong. Paragraph six of the March 21, 2005 order provides: "The plaintiff's request for reimbursement of college costs for their son [] is denied at this time without prejudice for lack of sufficient information being given to the court to make a determination . . . ."

At oral argument, plaintiff's present husband, who is admitted to practice law in this State and argued on her behalf, acknowledged that the judge considered defendant's bonus income in calculating child support. He withdrew plaintiff's claims that her motion for reconsideration was reasonable because of an error relevant to earned income and provided grounds for reversal of the order. We add that there was no competent evidence that defendant had unearned income relevant to child support that the judge failed to consider. Defendant's tax returns demonstrated a net loss on his rental property, and a third-party's payment of a one-time debt is not evidence of recurring income or of a gift that produces income or reduces expenses on an annual basis. See Pressler, supra, Appendix IX-B to R. 5:6A at 2326-30. The relevant inquiry with respect to support is a realistic assessment of ability to pay; non-recurring receipts in a single year are immaterial. See Storey v. Storey, 373 N.J. Super. 464, 472 (App. Div. 2004).

Finally, plaintiff's claim that she was forced to move for reconsideration or that we adjust support because the trial judge failed to consider the cost of car insurance for the twins is without merit. Plaintiff did not provide any evidence about that expense at the hearing, and, as the trial judge noted, the guidelines include transportation expenses. A party seeking a child support award that deviates from the guidelines has the burden of showing "good cause" for the deviation in accordance with R. 5:6A. See Accardi v. Accardi, 369 N.J. Super. 75, 87-89 (App. Div. 2004). Plaintiff simply mentioned car insurance costs during her testimony at the hearing; she neither articulated the argument she subsequently raised on motion for reconsideration nor presented the relevant evidence.

Our review convinces us that there is no basis for us to interfere with the trial judge's award of counsel fees or rulings on the merits of the issues presented at the hearing. By virtue of the trial judge's ruling of March 21, 2005, plaintiff is free to present a new application for contribution to college expenses. When that matter is addressed, the trial judge will, as his decision clearly states, modify child support again. At that point, plaintiff should present any argument she wishes to pursue in her moving papers so as to provide notice to defendant and permit an orderly disposition of the issues.

Affirmed.

 

(continued)

(continued)

16

A-5619-04T5

May 1, 2006