SUSAN A. CAREY v. JOSEPH CAREY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6246-03T26246-03T2

SUSAN A. CAREY n/k/a

SUSAN A. COPPOCK,

Plaintiff-Respondent,

v.

JOSEPH J. CAREY,

Defendant-Appellant.

____________________________

 

Argued on September 27, 2005 - Decided March 21, 2006

Before Judges Coburn, Collester and Lisa.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Gloucester

County, FM-08-389-02.

Charles J. Sprigman, Jr. argued the cause for

appellant.

Michael C. Cascio argued the cause for respondent.

PER CURIAM

Susan and Joseph Carey were married in Pennsylvania on October 11, 1980. Three children were born of the marriage: Justin (born December 10, 1981), Brian (born January 21, 1984), and Sara (born August 3, 1986). After Joseph left the marital residence on May 28, 2000, Susan filed for divorce. They retained counsel and entered into the property settlement agreement (PSA) on February 13, 2001, which provided that it was to "be construed in accordance with the laws of the Commonwealth of Pennsylvania." They agreed to joint legal custody of their unemancipated children, Brian and Sara, and Susan was designated primary physical custodian. Joseph's child support obligation was stated in paragraph 4.2 as follows:

A. Monthly Support Payments

Husband shall pay Wife the sum of Two Hundred Fifty Dollars ($250.00) per month for the support of the two children.... If wife seeks to modify child support so that Husband's support obligation [is] increased above and beyond the sum of Two Hundred Fifty Dollars ($250.00) per month for the support of the two children, Wife shall be responsible to setoff and pay over to Husband any excess award over Two Hundred Fifty Dollars ($250.00) per month.

A no-fault divorce decree was entered on May 16, 2001, in the Court of Common Pleas, Delaware County, Pennsylvania, which incorporated the PSA. Susan remarried in July 2001, and shortly thereafter moved to Gloucester County, New Jersey. Joseph also moved to Gloucester County and was remarried in September 2001. A month later on October 17, 2001, Susan filed a motion in the Gloucester County Family Court to register the PSA and the Pennsylvania divorce decree in New Jersey; to specify that New Jersey had exclusive jurisdiction on all post-judgment matters; to increase child support in accordance with New Jersey child support guidelines; and to declare paragraph 4.2(A) of the PSA unenforceable as contravening New Jersey law. Joseph opposed, arguing that since the PSA was to be construed under Pennsylvania law, New Jersey had no jurisdiction to alter its terms. After ruling that the divorce decree and the PSA were to be registered in New Jersey, the motion judge declined to declare paragraph 4.2(A) unenforceable. He held that Pennsylvania law applied to construe the PSA but that New Jersey had jurisdiction to consider modification of the child support provision. However, he denied Susan's application for an increase, finding that she did not make a sufficient showing of changed circumstances in the period of eight months since the PSA was signed or the five months since the divorce.

On April 26, 2002, Susan petitioned in Pennsylvania for an increase in child support in excess of the PSA amount. The court denied her application on July 10, 2002, on grounds that Pennsylvania no longer had jurisdiction over child support but adding, "if the Court were to determine it had jurisdiction the Court would be inclined to find based upon decisional law of the Commonwealth that Section 4.2(A) in the parties' Property Settlement Agreement is void as against public policy."

On February 21, 2003, Susan filed another motion in the Gloucester County Family Court to invalidate section 4.2(A) of the PSA, to declare that child support continues while the two children remained in college, to increase child support, and to make the increase retroactive to the date of her first motion.

Joseph responded that the New Jersey court had previously held Pennsylvania law governed construction of the PSA and should not revisit the issue. As to the application for an increase, he said the PSA figure of $250 per month was negotiated in consideration of his assumption of substantial debt incurred by Susan for her personal benefit. On April 29, 2003, Judge David W. Morgan held that since all parties and the children resided in New Jersey and the Pennsylvania court declined jurisdiction, New Jersey had continuing and exclusive jurisdiction on issues of child support. He ordered a plenary hearing on the issue of whether Joseph's child support obligation should be increased. He also found that section 4.2(A) of the PSA was void as against public policy.

Susan testified at the hearing that she was forced to agree to child support of $250 per month because Joseph would otherwise refuse to leave the marital home. While she admitted to incurring substantial debt without telling Joseph, she insisted that it was not for herself but to pay family expenses. Joseph disputed this testimony, saying that Susan secretly incurred credit card debt for her personal benefit when she planned to end the marriage. He claimed that he and Susan agreed that if he paid half of the credit card debt of $43,000, his child support payments would be fixed at $250 per month, which was calculated by deducting $103 from the weekly child support figure of $160 per week per child derived from the Pennsylvania child support guidelines.

On May 12, 2004, Judge Morgan gave an oral decision in which he ruled that the law of New Jersey governed on the issue of child support and as a result support for the two children was to continue past age eighteen while they attended college, giving the following reasons:

[T]he primary focus of this court, bar none, is the best interest of the child, that provides the policy and provides fairly significant weight to saying that New Jersey's rule far outweighs that of Pennsylvania. And that using the thinking of those cases as well as that philosophy, and using the governmental, the flexible governmental interest doctrine in choosing law, I'm satisfied that New Jersey law applies to this case, notwithstanding the fact that the parties had elected and agreed to be bound by the laws of Pennsylvania.

Judge Morgan denied Joseph's claims for credit in the form of lesser child support for his assuming the so-called "secret debt" amassed by Susan because New Jersey law does not permit an equitable distribution credit to be taken against child support. He also found that the debt incurred by Susan was for family expenses rather than her personal financial enhancement. He recalculated child support based on the New Jersey guidelines at $212 per week from June 1, 2004 to August 31, 2004, and $195 per week thereafter until the children finished college or were otherwise emancipated, and made the increase retroactive to the date of Susan's initial motion for modification on October 17, 2001, and fixing an arrearage of $17,841.

Joseph argues on appeal that Judge Morgan erred by declining to enforce the PSA child support provision and failing to interpret the PSA under Pennsylvania law. He also seeks counsel fees pursuant to the PSA for defending against Susan's breach of the agreement. Alternatively, he argues that if New Jersey law is deemed applicable and child support is increased, it was error to order support retroactive to the date of Susan's first modification motion.

Under Pennsylvania law a parent's duty to support ends when the child reaches eighteen or finishes high school, whichever is sooner, and there is no obligation to make a college contribution. Blue v. Blue, 532 Pa. 521, 616 A.2d 628 (1992); see also Curtis v. Kline, 542 Pa. 249, 666 A.2d 265 (1995). In contrast the law of this State is that a parent's child support obligation does not automatically terminate at age eighteen, and the obligation encompasses a child's right to college contribution when the parents are financially capable and the child is college qualified. Newburgh v. Arrigo, 88 N.J. 529, 543-44 (1982); Khalaf v. Khalaf, 58 N.J. 63, 71-72 (1971); Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997); Limpert v. Limpert, 119 N.J. Super. 438, 441 (App. Div. 1972).

Parties to a PSA may stipulate that the law of a foreign state governs their rights and obligations and New Jersey courts will normally adhere to their choice of law. Kalman Floor Co. Inc. v. Jos. L. Muscarelle, Inc., 196 N.J. Super. 16, 21 (App. Div. 1984, aff'd, 98 N.J. 266 (1985); Haynoski v. Haynoski, 264 N.J. Super. 408, 413 (App. Div. 1993). However, our courts have declined to adopt a per se rule of enforceability of negotiated agreements between spouses, especially when they relate to children residing in this State. Fantony v. Fantony, 21 N.J. 525, 535 (1956); Black v. Walker, 295 N.J. Super. 244, 253-54 (App. Div. 1996); Massar v. Massar, 279 N.J. Super. 89, 94 (App. Div. 1995). When New Jersey is the forum its choice of law principles will govern. Gilbert Spruance Co. v. Pennsylvania Mfrs. Ass'n Ins. Co., 134 N.J. 96, 102 (1993); McBride v. Minstar, Inc., 283 N.J. Super. 471, 481-82 (Law Div. 1994), aff'd o.b. sub nom McBride v. Raichle Molitor, USA, 283 N.J. Super. 422 (App. Div.), certif. denied, 143 N.J. 319 (1995).

It is settled law and public policy of this State that parents cannot bargain away the rights of their children. Zazzo v. Zazzo, 245 N.J. Super. 124, 130 (App. Div. 1990), certif. denied, 126 N.J. 321 (1991) ("There is no divorce between parent and child."). The right of support belongs to the child, not the parent. Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993).

A case in point is Blum v. Ader, 279 N.J. Super. 1, 4 (App. Div. 1994), where the parties agreed to be bound by the law of Delaware. After the former wife moved to New Jersey, she first sought the continuation of alimony beyond the two-year alimony limitation of Delaware law at the time of the PSA. We upheld the PSA provision as part of the voluntary negotiated agreement. Id. at 3. The subsequent appeal dealt with the manipulation of the parties' daughter, then eighteen and a full-time student at Seton Hall University. While the PSA was silent on the issue, the trial judge applied Delaware law that child support ceases at age eighteen and a parent is not responsible to pay for college education. We reversed both the termination of child support and the holding that the father was not responsible for college expenses.

Parties may stipulate the state's law that will govern their agreement. Even if the [parties'] choice of law provision in their separation agreement was intended by them to govern their obligation to pay for their children's higher education if still residents of Delaware, we would not enforce such a provision as it applied to a New Jersey resident child. Under New Jersey law, which clearly governs Blakely's right of support from her parents, the parties could have bargained concerning how they would divide college expenses between themselves. But they cannot bargain away Blakely's rights, and thus eliminate their obligations to pay for her college expenses.

[Id. at 4. (Citations omitted.)]

Blum is illustrative of the choice of law determination in family law cases. While PSA provisions incorporating foreign law as to issues of alimony or equitable distribution are more readily recognized and enforced, the rights of resident children cannot be terminated or circumscribed contrary to the law and public policy of this state.

Whitfield v. Whitfield, 315 N.J. Super. 1, 14 (App. Div. 1998), cited by Joseph, is not to the contrary. In that case the parties were divorced in Virginia and executed a PSA specifying that child support was to be determined in accordance with Virginia support guidelines as long as one party resided in Virginia. At the time of the divorce the father was unemployed and, by agreement in the PSA, no child support was ordered. After moving to New Jersey with the children, the mother sought child support in Virginia where the father still lived. The Virginia court imputed income to the father and directed him to pay support, but it did not fix an amount. The mother then sought and obtained an order of child support in New Jersey. On appeal we held that the motion judge had jurisdiction to enter a support order for children residing in New Jersey but erroneously fixed support under the New Jersey child support guidelines when both the PSA and the Virginia divorce decree specified that child support was to be fixed by Virginia support guidelines. Therefore, Whitfield is inapposite to the issue before us, which is not calculation of a child support order but termination of child support under laws of a foreign state.

We conclude that Judge Morgan properly determined that under New Jersey law support for the children did not terminate at age eighteen since they were attending college. Furthermore, we find no error or abuse of discretion in his calculation of the child support obligation imposed on Joseph after the lengthy plenary hearing. Rova Farms Resort, Inc. v. Investors Ins. Co., Inc., 65 N.J. 474, 483-84 (1974); see Weitzman v. Weitzman, 228 N.J. Super. 346, 358 (App. Div. 1988), certif. denied, 114 N.J. 505 (1989).

Defendant next argues that Judge Morgan both erred and abused discretion in giving retroactive effect to his increased order of child support back to October 17, 2001, the filing date of plaintiff's initial motion to modify child support, and fixing an arrearage of $17,841. Defendant first asserts that pursuant to N.J.S.A. 2A:17-56.23a, his child support obligation cannot be retroactively increased. However, in Keegan v. Keegan, 326 N.J. Super. 289, 291 (App. Div. 1999), we held that the anti-retroactive support statute prevented retroactive modifications decreasing or vacating child support orders but did not insulate parents from retroactive increases. Here the amount of child support fixed in the PSA was artificially low and obviously inadequate which gave Judge Morgan the equitable discretion to retroactively increase child support. See Tash v. Tash, 353 N.J. Super. 94, 100 (App. Div. 2002).

Joseph next argues that calculation of arrears must be limited to February 21, 2003, the date Susan filed her second motion to increase child support. He notes that Susan's initial motion on October 17, 2001, was denied by the court for a failure to show changed circumstances justifying an increase and that Susan did not appeal the denial. He argues that therefore retroactive support cannot relate back to the original motion. We disagree. Judge Morgan's decision did not revisit the issue of changed circumstances as of October 17, 2001, but focused on the different question of whether child support was restricted to the PSA amount or was to be calculated and enforced in accordance with the child support guidelines. After holding that the guidelines were applicable and that the amount of child support in the PSA was well below the guidelines, Judge Morgan had equitable discretion to retroactively apply his order of child support back to the date of Susan's original application in light of the paucity of support paid by Joseph which was obviously inadequate to meet the needs of his children. Tash v. Tash, supra, 353 N.J. Super. at 100.

Finally, defendant contends that Judge Morgan erred in failing to award him counsel fees under the PSA provision stating:

If either party violates the terms of this Agreement and the other party is required to expend funds for an attorney, court costs or expenses to enforce the terms of this Agreement, the breaching party shall be liable to the non-breaching party for these costs and expenses reasonably incurred.

Parties may stipulate in an agreement as to the payment of counsel fees, Jobe v. Jobe, 197 N.J. Super. 396 (App. Div. 1984). However, in this instance the agreement requires a breach in order to trigger a counsel fee award. We concur with Judge Morgan that Susan did not breach the agreement in seeking to modify a child support restriction that is contrary to the law and public policy of this State.

 
Affirmed.

Joseph does not assert that there is any significant differential between the New Jersey and Pennsylvania child support guidelines.

Judge Morgan also ordered that issues of payment or reimbursement for college expenses for the two children was to be determined in accordance with New Jersey law. Since no application has been made for any such payments, we do not address the issue.

"No payment or installment of an order for child support, or those portions of an order which are allocated for child support established prior to or subsequent to the effective date of P.L. 1993, c.45 (C. 2A:17-56.23a), shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification, but only from the date the notice of motion was mailed either directly or through the appropriate agent. The written notice will state that a change of circumstances has occurred and a motion for modification of the order will be filed within 45 days. In the event a motion is not filed within the 45-day period, modification shall be permitted only from the date the motion is filed with the court." N.J.S.A. 2A:17-56.23a.

(continued)

(continued)

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A-6246-03T2

March 21, 2006