JANE FRENCH v. MARK FRENCH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6192-04T56192-04T5

A-0571-05T5

JANE FRENCH,

Plaintiff-Respondent,

v.

MARK FRENCH,

Defendant-Appellant.

________________________________________________________________

 

Submitted October 4, 2006 - Decided October 25, 2006

Before Judges Graves and Lihotz.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Bergen County,

Docket No. FM-02-1148-01-D.

Lomberg & Del Vescovo, attorneys for appellant

(Paul Lomberg, on the brief).

Spinato, November & Conte, attorneys for

respondent (Marie L. Napoliello, on the brief).

PER CURIAM

The parties were married on September 28, 1985, and divorced on October 16, 2002. The amended dual judgment of divorce states that the parties reached a "written agreement which is incorporated herein." Three children were born of the marriage: Olivia is thirteen, Marcus is twelve, and William is eight. Defendant, Mark French, appeals from portions of orders entered by the Family Part on June 10, 2005, August 26, 2005, and January 24, 2006. We affirm in part and reverse in part.

On appeal, defendant presents the following arguments:

THE COMPETENT EVIDENCE DOES NOT SUPPORT THE TRIAL COURT'S FINDINGS[.]

A. DIRECTING DEFENDANT TO PAY FOR THREE MONTHS OF CHILD CARE DESPITE NEVER RECEIVING CONTRACTUALLY AGREED, AND REASONABLY VERIFIABLE, PROOFS OF ENTITLEMENT WAS ERROR[.]

B. THE LOWER COURT'S REFUSAL TO DIRECT PLAINTIFF TO RETURN CONVERTED INSURANCE PROCEEDS WAS ERROR[.]

C. DIRECTING THAT FUNDS IN ESCROW BE HELD PENDING A PROBATION AUDIT TO SECURE AN OVERPAYMENT WAS ERROR[.]

D. REQUIRING DEFENDANT TO PAY $3,000 IN WORK RELATED CHILD CARE COSTS WITHOUT PROPER DOCUMENTATION WAS ERROR[.]

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Because of the family courts' special expertise in family matters, "appellate courts should accord deference to family court factfinding." Id. at 413. We do not disturb the trial court's factual findings and legal conclusions unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Id. at 412 (citation omitted).

In this case, it appears that two of defendant's arguments (paragraphs A and D) relate to the same issue--work related child care costs for the months of January, February, and March 2005. In her certification to the trial court, plaintiff stated that defendant's monthly payments for child care were "consistently late and have not been paid at all for the months of January, February and March." During oral argument on June 10, 2005, defendant's attorney claimed that defendant had a right to stop paying his portion of the child care expenses because plaintiff failed to provide a certification from the child care provider as required by the parties' agreement.

The trial court's reasons for requiring defendant to pay his share of the child care expenses were as follows:

The PSA [(Property Settlement Agreement)], at 5(c) provides that the [d]efendant will pay $1000 per month to the [p]laintiff for work related child care. The [p]laintiff will, however, provide "documentation" of the actual expenditures. In addition, the [p]laintiff was to receive a certification from the provider as to the "actual hours and days worked."

The [p]laintiff certified that she has provided a calendar outline of such costs which the [d]efendant has accepted and paid until January 2005 when he unilaterally stopped all child care payments.

The [d]efendant made application by way of his cross-motion for an accounting in accord with the PSA.

The [d]efendant is entitled to the documentation of actual expenditure for child care in accord with the PSA. On the other hand, the parties have exchanged information concerning the child care which was satisfactory to the [d]efendant as evidenced by his prior payment of the child care. Therefore, the [c]ourt includes that the parties, as evidenced by the course of performance through April 2005, did have an agreed upon formulation for the plaintiff to demonstrate that she had incurred child care.

The [c]ourt will, therefore, order the [d]efendant to pay any unpaid child care due through March 2005. The court will order the [p]laintiff to provide verification of child care for the period commencing April 1, 2005 through June 2005 by July 1, 2005 and for each month thereafter in accord with the PSA. The parties will be ordered to adhere to the terms of the PSA concerning verification of child care costs for the month of July 2005 and for each month thereafter as may be appropriate.

Our review of the record confirms that the payment ordered by the court was consistent with the course of conduct established by the parties through December 2004. We conclude therefore that the required payment is neither unfair nor unreasonable, and it does not constitute an improper exercise of discretion.

We are also convinced that the trial court did not err when it directed defendant to "provide all records of payments made as and for child support for an audit by the Hudson County Probation Department," and it authorized the sum of $10,573.00 to be held by counsel for the plaintiff, in its trust account, pending completion of the audit. Given the conflicting allegations, including plaintiff's claim that she was owed child support arrears and the sum of $10,618.28 for unreimbursed medical expenses and extracurricular activities for the children, we perceive no misapplication of discretion by the trial court.

Defendant also contends that the trial court's "refusal to direct plaintiff to return converted insurance proceeds was error." With respect to this issue, the trial court's findings were as follows:

The [d]efendant demands that the [p]laintiff turnover to the [d]efendant $32,000 for insurance proceeds received due to the loss of jewelry consisting of an engagement ring and a wedding ring. The [p]laintiff certifies that the jewelry was an absolute gift from the [d]efendant.

The parties were married when the gift was completed by delivery to the [p]laintiff. The context of the exchange does not raise any issue as to a gift in contemplation of marriage but rather, with respect to the engagement ring, it was a gift after ten (10) years of marriage. The wedding ring was presented to the plaintiff on the day of the wedding ceremony.

The Property Settlement Agreement ("PSA") does not contemplate the return of jewelry or the proceeds from insurance.

The court ordered the [p]laintiff to provide to the [d]efendant copies of the claim forms submitted to the insurance carrie[r] (See MDS 5). The [p]laintiff has complied with the [c]ourt's [o]rder. The [c]ourt considers this issue closed.

We conclude, however, that there is a genuine factual dispute regarding this issue. On May 30, 2003, plaintiff received a check from Atlantic Mutual Insurance Company in the amount of $32,000 for jewelry that had been either lost or stolen. Plaintiff certified that she received $27,000 for her engagement ring and $5,000 for her wedding ring. On the other hand, defendant certified that he was entitled to receive the insurance money because it represented payment for jewelry he inherited from either his mother or his grandmother. In support of his claim, defendant provided the court with a copy of a fax he said he received from plaintiff on November 30, 2002. The fax contains the following statements:

As you have yet to pay the monthly payments owed by you and incurred for the children's extracurricular activities (extraordinary expenses) for both November 2002 and December 2002[,] I propose we credit the overpayment made by wage garnishment to any extracurricular or extraordinary expenses incurred on the children's behalf and outlined specifically in the divorce settlement agreement.

I also propose that when the overpayment of garnishment is used up (having been applied month after month to the children's extracurricular activities) should you still owe monies on either the children's monthly incurred extracurricular activities (extraordinary expenses) or the lump sum alimony payment that we use any further monies that I may owe you, including but not limited to, the insurance money on the missing diamond ring to any monies which you may owe me.

Mark, should you in fact be paid up-to-date with both extracurricular expenses and the lump sum alimony payment, I will happily turn over to you any monies owed you including but not limited to your entitled half of the insurance money.

HOWEVER; MARK..... Should you not have paid in full all your monies owed me as outlined to you, I will hold all monies I owe you including but not limited to the jewelry insurance money and apply them to my lump sum alimony payment and ALL monthly extraordinary/extracurricular expenses I incur on the children's behalf--expenses you also are responsible for as outlined in the divorce settlement agreement.

. . . .

Finally, should you fail to pay monthly extra-curricular [sic] activity/extra ordinary [sic] expenses on the children's behalf, or fail to pay me the balance of my lump sum alimony payment, I will hold back paying you any future monies owed you, including but not limited to the jewelry insurance money (when it is paid) until you pay me monies owed.

[Emphasis added.]

In light of the conflicting certifications, and the fax presented by defendant, we conclude that this dispute should not have been resolved by the court without the benefit of a plenary hearing. See, e.g., Innes v. Innes, 117 N.J. 496, 520 (1990); Lepis v. Lepis, 83 N.J. 139, 159 (1980); Accardi v. Accardi, 369 N.J. Super. 75, 87 (App. Div. 2004); Isaacson v. Isaacson, 348 N.J. Super. 560, 579 (App. Div.), certif. denied, 174 N.J. 364 (2002); Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.) ("Judges cannot resolve material factual disputes [based] upon conflicting affidavits and certifications."), certif. denied, 142 N.J. 455 (1995).

We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

 

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A-6192-04T5

October 25, 2006