LISA M. DEMARIS v. PETER G. DEMARIS, SR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6315-05T56315-05T5

LISA M. DEMARIS,

Plaintiff-Appellant,

v.

PETER G. DEMARIS, SR.

Defendant-Respondent.

_______________________________________

 

Submitted October 31, 2007 - Decided

Before Judges Wefing and Lyons.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-652-04(X).

Vincent L. Robertson, attorney for appellant.

Patricia Ronayne, attorney for respondent.

PER CURIAM

Plaintiff Lisa M. DeMaris appeals from an order entered on June 30, 2006, requiring plaintiff to pay her ex-husband, defendant Peter G. DeMaris, Sr., $111 per week as her share of her child, Peter G. DeMaris, Jr.'s, weekly support obligation; thirty-five percent of a loan payment owed in connection with Peter Jr.'s attendance at the University of Vermont and thirty-five percent of a loan obtained from Sallie Mae incurred in connection with her son's attendance at Full Sail Real World Education (Full Sail). The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

Plaintiff and defendant were married on January 10, 1987. They have three children, Peter Jr., now age twenty, M.D., now age seventeen, and N.D., now age sixteen. Plaintiff and defendant, during their marriage, had discussed their children attending college. On June 2, 2004, the parties divorced and plaintiff initially had custody of all three children. Parenting, however, was shared. In October 2004, Peter Jr. moved in with defendant. At that time, he was a senior in high school. He was a B/C student and had achieved a score of 1210 on his college SAT test. In February 2005, custody of Peter Jr. was officially transferred to defendant.

In the winter and spring of 2005, plaintiff arranged one college visit for Peter Jr. and went herself with him to visit the University of Delaware. Defendant sent more than five letters, some certified, during this period to plaintiff regarding their son's college selection options, the choice of the school he was to attend, and certain background information on the finances involved. Because of the animosity evident in the record between the parents, it is clear that most of the discussions were by mail or email, as opposed to face-to-face. In the spring of 2005, plaintiff was informed that Peter Jr. would be attending the University of Vermont in the fall. In July 2005, defendant demanded that plaintiff contribute thirty-five percent of the college costs for her son in response to her inquiries regarding items needed to be purchased in preparation for her son's attendance at college. At that time, defendant instructed plaintiff that if she were looking for details, she should ask Peter Jr. directly.

In September 2005, Peter Jr. began matriculating at the University of Vermont. Also during that period, plaintiff was laid off from her job at Campbell's Soup Company where she had been making $40,500 per year. In November 2005, Peter Jr. withdrew from the University of Vermont, without the consent or approval of either parent. While at the University of Vermont, he incurred a number of student loans in his own name, and his father had co-signed a loan in the amount of $11,888 to pay for the tuition there.

On December 19, 2005, defendant filed a motion to enforce plaintiff's obligation to contribute to her son's college education. In the application, defendant advised that their son was looking at a school in Florida and would be enrolling in February 2006 at that school. He did not specify the name of the school or the cost. On January 9, 2006, plaintiff filed a cross-motion in opposition to defendant's motion. On February 27, 2006, Peter Jr. began attending Full Sail in Florida. He had an apartment there as the school did not provide housing. Defendant advanced the start-up costs and obtained a loan for the son's educational expenses through Sallie Mae.

Also in February 2006, the individual with whom plaintiff had been living died. His will provided that plaintiff was to receive the home they were living in free and clear. At the time that the home was purchased, it had a value of approximately $330,000.

On March 28 and April 3, 2006, the trial court had a plenary hearing regarding the application to have plaintiff contribute to Peter Jr.'s college costs. On May 1, 2006, the trial court issued a comprehensive letter opinion with its decision; an order was entered on June 30, 2006. A notice of appeal to our court was filed on August 15, 2006.

In March 2007, plaintiff filed a motion to remand the matter to the trial court since Peter Jr. was finishing classes at Full Sail and "did not want to stay in Florida to continue the program he had started," but rather voiced a desire to attend Drexel University. Plaintiff sought to file a motion for emancipation, modification, and reconsideration in the trial court. Our court granted the motion to remand. On remand, plaintiff's motion was heard by a different trial judge and was substantially denied. The trial court denied the motion to terminate child support with respect to Peter Jr., to emancipate Peter Jr., and to recalculate child support for the younger children. Plaintiff's motion was granted in part requiring that defendant provide documentation concerning the terms of the Sallie Mae loan and directing him to provide his resident address, work, home and cell telephone numbers. Plaintiff's motion to resume her maiden name was also granted. This appeal was then briefed and submitted for decision.

On appeal, plaintiff presents the following arguments for our consideration:

POINT I

THE TRIAL COURT ERRED IN PRECLUDING TESTIMONY CONCERNING CONVERSATIONS BETWEEN PLAINTIFF AND PETER JR. ON HEARSAY GROUNDS.

POINT II

IT WAS ERROR FOR THE TRIAL COURT TO IGNORE DEFENDANT'S FAILURE TO PROVIDE PLAINTIFF A MEANINGFUL OPPORTUNITY TO PARTICIPATE IN PETER JR.'S COLLEGE CHOICES.

POINT III

THE TRIAL COURT ERRED IN IMPUTING INCOME TO PLAINTIFF.

POINT IV

THE TRIAL COURT'S ERRORS UNFAIRLY DISADVANTAGED THE YOUNGER CHILDREN.

We will address the issues on appeal seriatim. Plaintiff first argues that the trial court erroneously excluded evidence of certain discussions between plaintiff and Peter Jr. as hearsay. Plaintiff objects that she was not permitted to testify, that when she questioned Peter Jr. about finances in connection with the school in Florida, she was told by him that defendant would take care of it. She also objects to her not being able to testify about Peter Jr.'s response when she criticized his purchasing a $260 ring for his girlfriend. Lastly, she argues that it was error to not permit testimony concerning Peter Jr.'s statement about the trip Peter Jr. and defendant took to look at Full Sail.

First of all, we note that plaintiff's argument in response to the objection raised at trial was that the testimony was not hearsay because plaintiff heard it herself. We agree with the trial judge that that argument in opposition to the objection had no merit. Now on appeal, plaintiff argues that the statements were sought to be admitted not for the truth of the statements but to demonstrate that Peter Jr. was not forthcoming with her when she asked for details about the financial arrangements for Peter Jr.'s college; that the statements demonstrate Peter Jr. did not have a shared goal with her concerning finances; and that these statements show the "incongruity of the 'background, values and goals of the parent on the reasonableness' of the child's expectations on paying for his higher education."

"Traditional rules of appellate review require substantial deference to a trial court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998). We find no fault in the trial court's ruling because the statements were hearsay and counsel did not point to any exception to the hearsay rule pursuant to which the statements could be admitted. See N.J.R.E. 802. As specifically noted in the trial judge's written opinion, plaintiff contended that her son consistently told her that Peter Sr. was handling the finances. In discussing the eleventh Newburgh factor (the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance), the trial court made findings concerning Peter Jr.'s difficulty in communicating well with plaintiff concerning her questions regarding Full Sail and the expenses for same. See Newburgh v. Arrigo, 88 N.J. 529 (1982). Consequently, we find no abuse of discretion and, even if it could be argued there was error, the error was harmless and would not justify reversal. State v. Macon, 57 N.J. 325, 338 (1971); Purdy v. Nationwide Mut. Ins. Co., 184 N.J. Super. 123, 130 (App. Div. 1982).

Plaintiff next alleges that it was error for the trial court to ignore defendant's failure to provide plaintiff a meaningful opportunity to participate in Peter Jr.'s college choices. We find this argument has no merit. The record clearly demonstrates that defendant testified that he sent more than five letters at appropriate times to plaintiff to inform her of developments with respect to Peter Jr.'s college choices and the financial arrangements related thereto. When plaintiff inquired in the summer before Peter Jr. went to college as to details and coordinating the preparation of Peter Jr. for college, defendant informed her that she should talk directly to Peter Jr. The record also indicates that plaintiff helped arrange one campus visit and took her son on another campus visit during the application process. She sought certain details from her son and, at times, was put off, but she was certainly knowledgeable of his goals and his choices. Furthermore, plaintiff received a timely demand for contribution in the summer before he began school at the University of Vermont.

There is no question from this record that there is great animosity between defendant and plaintiff. Plaintiff demonstrated that dialogue between the parties is difficult. However, plaintiff's reliance on Gac v. Gac, 186 N.J. 535 (2006) is misplaced. Gac holds that when there is no communication between the parties concerning college education choices and expenses, the non-custodial parent may be relieved of the obligation to contribute to college expenses. Gac, supra, 186 N.J. 535. The trial court made extensive, detailed, and thorough findings of fact and conclusions of law. The trial court noted that "plaintiff clearly had knowledge of her son's college choices, including UVM and Embry, though she may not have been actively involved in the selection process for Full Sail." The court noted that there were communication problems because the child was placed in the middle and the parents had not discussed the subject. The court specifically found, however, that neither defendant nor the child treated plaintiff as a "wallet."

Further, the trial court found that it could not be said there was a lack of mutual affection between mother and son or a lack of shared goals. The situation in this case, as in all divorces as recognized in Gac, is "unique." Gac, supra,

186 N.J. at 545. There was clearly a relationship between plaintiff and Peter Jr. While the communications between the parents were certainly less than optimal, plaintiff received sufficient information to act to protect her financial interests if she had so chosen. She was notified well before school began of Peter Jr.'s selection, and she received a demand for contributions in July 2005. We agree with the trial court that this is not a Gac case.

Defendant also argues that the trial court erred in imputing income to plaintiff. Plaintiff had been laid off since September 2005. The trial court found that plaintiff was capable of earning $40,500 per year consistent with her prior employment. At the time of trial, though, she was receiving alimony of $100 per week, and unemployment compensation of $467. Plaintiff argues that because she was not voluntarily unemployed, it was improper to impute income to her. We disagree.

The trial court found that plaintiff's current earning ability is a minimum of $40,500 per year and that her custodial responsibilities for her younger children do not interfere with her earning capacity. It is clear from the record that plaintiff was temporarily unemployed. Temporary circumstances are an insufficient basis to modify a support obligation. See Innes v. Innes, 117 N.J. 496, 504 (1990); Bonanno v. Bonanno, 4 N.J. 268, 275 (1950). The trial court appropriately viewed plaintiff's situation as a temporary one. The trial court noted that plaintiff was considering working at a local hospital initially as a medical assistant, and that position provided her with the ability to obtain her registered nursing license. In addition, the trial court noted that she had received a home, free and clear, from the man that she had shared the home with and could, in the interim, utilize the home to obtain funds. We see no error in the trial judge's findings based on the substantial credible evidence in the record.

Lastly, plaintiff argues that the court's decision unfairly disadvantaged the younger children. The trial court correctly began its analysis with the child support for the two younger children. The court utilized the Child Support Guidelines in order to recalculate child support for the two younger children, with the plaintiff as the parent of primary residence, and defendant as the parent of alternate residence using the guideline calculations. The court established the appropriate child support obligations for each parent. Then, the court subtracted plaintiff's obligation to contribute to the support for Peter Jr. from defendant's support obligation for the two younger children. The court noted that neither party had put aside any money for Peter Jr.'s education, but that each had a substantial ability to borrow in order to provide for Peter Jr.'s college expenses. We see nothing in the record that indicates the trial court's decision unfairly disadvantages the younger children. R. 2:11-3(e)(1)(A).

We affirm.

(continued)

(continued)

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A-6315-05T5

November 29, 2007