ANTHONY NARDI, JR v. JEAN L. NARDI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0574-07T30574-07T3

ANTHONY NARDI, JR.,

Plaintiff-Respondent,

v.

JEAN L. NARDI,

Defendant-Appellant.

_______________________________________

 

Argued June 3, 2008 - Decided

Before Judges Winkelstein and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FM-06-424-05.

Carol J. Kernan argued the cause for appellant (Gruccio, Pepper, De Santo & Ruth, P.A., attorneys; Ms. Kernan, of counsel and on the brief).

Rebecca J. Bertram argued the cause for respondent (Baker, Krell, Haag & Bertram, attorneys; Ms. Bertram, on the brief).

PER CURIAM

Defendant Jean L. Nardi appeals from an order entered by the Family Part on August 24, 2007, which denied defendant's motions for post-judgment relief, and granted a cross-motion for relief by plaintiff Anthony Nardi. We affirm.

I.

The parties were married on April 19, 1980. Three children were born of the marriage, J.N., C.N. and A.N. On February 15, 2005, plaintiff filed a complaint for divorce. A final judgment of divorce was entered by the court on August 2, 2005, which incorporated a property settlement agreement (PSA) between the parties that had been executed on July 5, 2005. The PSA noted that J.N. and C.N. were emancipated. The PSA provided that, although plaintiff was designated the parent of primary residence for A.N., plaintiff would pay defendant $100 every other week as child support.

According to the PSA, the agreed-upon amount of child support "takes into account [plaintiff's] present income of approximately $70,000 per year and [defendant's] estimated imputed income of $25,000 per year." The PSA further provided that the parties could revisit the issue of child support after two years. In addition, the PSA stated that the parties agreed "to share equally in the costs and expenses associated with the further education of [A.N.] after all grants, scholarships or loans are taken."

The PSA additionally provided that the parties waived "their respective rights to alimony and support of any nature, in consideration of these stipulations and lump sum alimony being paid." The PSA stated in pertinent part that:

[t]his waiver is for any and all past, present or future support, regardless of a change in circumstances. This waiver of rights by both parties shall continue until the time of death, regardless of any change in circumstances, including but not limited to any sickness or inability on the part of either to be employed or maintain themselves. Both parties acknowledge that they have been advised of the case of Lepis v. Lepis [ 83 N.J. 139 (1980)] and understand that they are waiving their rights pursuant to that case and the laws and decisions of the State of New Jersey to seek alimony or any other form of support or of maintenance at any time in the future from the other party and hereby waive the right to the same for the past and present.

The agreement stated that plaintiff shall pay defendant $36,000 "as lump sum alimony and also in consideration of [defendant's] waiver of lump sum alimony, [plaintiff] shall transfer $14,000 from his individual IRA account . . . to [defendant]."

The PSA also indicated that defendant waived her right, title and interest in the former marital residence, and plaintiff would pay defendant $110,000 for her interest in the property. The bank accounts in the names of either party remained "the sole and exclusive property of that party." Plaintiff waived his right, title and interest in defendant's motor vehicle. Plaintiff agreed to be responsible to continue medical insurance coverage for defendant for thirty-six months. Provision also was made for a division of the parties' interests in certain retirement benefits. In addition, plaintiff waived any interest in defendant's business.

On July 25, 2007, defendant filed a motion seeking an order: 1) amending the parenting plan for A.N. and increasing the child support payments from plaintiff to defendant; 2) re-opening the final judgment of divorce; 3) awarding plaintiff alimony; 4) re-apportioning the parties' respective contributions to A.N.'s college costs; 5) awarding defendant attorney's fees and costs; and 6) granting defendant such other relief as the court may deem just and equitable.

Plaintiff opposed defendant's motion and filed a cross-motion seeking an order: 1) denying defendant's motion; 2) enforcing the final judgment and PSA "as it exists;" 3) terminating child support; 4) awarding plaintiff counsel fees and costs; and 5) granting plaintiff such other relief as the court deems just and equitable.

The judge heard the motions on August 24, 2007. The judge entered an order on that date that denied defendant's motion to amend the parenting plan for A.N. and require plaintiff to pay additional child support for A.N. The judge denied defendant's request to re-open the final judgment, finding that defendant had not met her burden for such relief under Rule 4:50-1. In addition, the court denied defendant's motion for an award of alimony, her request to re-apportion the parties' respective shares of A.N.'s college costs, and her motion for an award of attorneys' fees and costs. The court granted plaintiff's cross-motion to enforce the final judgment and PSA; terminated plaintiff's child support obligation as of August 8, 2007; and ordered defendant to pay plaintiff $750 for his counsel fees and costs. This appeal followed.

Defendant raises the following issues for our consideration:

POINT I:

THE COURT ABUSED ITS DISCRETION IN FAILING TO ESTABLISH CHILD SUPPORT IN FAVOR OF THE DEFENDANT/WIFE ON BEHALF OF THE PARTIES' DAUGHTER, [A.N.], WHO ATTENDS CUMBERLAND COUNTY COLLEGE AND RESIDES WITH THE DEFENDANT/WIFE.

POINT II:

A CIRCUMSTANCE ANTICIPATED TO OCCUR DID NOT OCCUR WHICH CONSTITUTES A SUBSTANTIAL CHANGE IN CIRCUMSTANCES WHICH REQUIRES THE REVISITING OF ALIMONY.

POINT III:

THE PROPERTY SETTLEMENT AGREEMENT IS UNCONSCIONABLE AND SHOULD BE REOPENED IN ACCORDANCE WITH [RULE] 4:50.

POINT IV:

THE TRIAL COURT ERRED IN REFUSING TO REAPPORTION THE PARTIES' RESPECTIVE CONTRIBUTIONS TO THE COLLEGE COSTS OF THE CHILDREN.

POINT V:

THE COUNSEL FEE AWARD IN FAVOR OF PLAINTIFF/HUSBAND SHOULD BE SET ASIDE.

II.

We turn first to defendant's arguments that the judge erred by refusing to increase the child support for A.N., terminating plaintiff's child support obligation, and refusing to re-apportion the parties' respective contributions to A.N.'s college costs. In our view, these arguments are without merit.

In the certification in support of her motions, defendant asserted that A.N. graduated high school in June 2007 and planned to attend college beginning in the fall of 2007. Defendant noted that in the PSA, plaintiff had been designated as the primary residential parent for A.N. but defendant stated that A.N. had "always spent more time with [her] than with [plaintiff]." Defendant additionally noted that the PSA required that plaintiff pay her child support for A.N. in the amount of $50 per week. Defendant stated:

Over time, [A.N.] has spent more and more time with me. The present arrangement is that [A.N.] spends 6 out of 7 nights per week with me, usually spending Wednesday, overnight, with her father. For at least a year, this has been the arrangement. [The PSA] provides that "child support may be reviewed by either party at the expiration of two years from the date of this agreement" and I believe that the change in the parenting time arrangement is a substantial change in circumstances that justifies the revisiting of the support order.

Defendant requested that the court issue an order requiring plaintiff to pay support for A.N. in an amount required by the child support guidelines.

In addition, defendant stated that, despite the "great disparity" in their respective incomes, the parties had agreed in the PSA to share the costs of A.N.'s college education. Defendant asserted, "I do not have the ability to pay one half of these costs and I ask that the court reform the agreement to provide an equitable apportionment of these costs between" the parties.

In response, plaintiff submitted a certification in which he disputed the assertion that A.N. resides with defendant six out of seven nights per week. Plaintiff stated that A.N. "comes and goes from each of our homes as she pleases." Plaintiff asserted that he should remain the parent of primary residence for A.N. He stated that defendant only wished to change that provision of the PSA because "she is trying to get more money from" him.

Plaintiff additionally stated that he had been paying defendant $50 per week for child support, and continued to pay for A.N.'s car and its upkeep. He said that he had to take an unsecured loan to purchase the vehicle. Plaintiff also asserted that his case information statement indicated that he has "virtually no extra money to spend on anything."

With regard to defendant's request that the court modify the terms of the PSA pertaining to the sharing of the cost of A.N.'s college education, plaintiff noted that A.N. had not yet enrolled in college. Plaintiff asserted that A.N. should endeavor to get grants and student aid for her education. Plaintiff stated that A.N. was working at the time and should be responsible for some of her own expenses. He said that A.N. had informed him that her employer would contribute to her education if she transferred to another school. Plaintiff asserted that there was no basis to change the provision of the PSA requiring the parties to share the cost of A.N.'s higher education.

In her reply certification, defendant noted that the parties could not agree as to how much time A.N. spends at their respective homes. She stated that A.N. had enrolled in college. She asserted that the provision of the PSA requiring the parties to share the cost of A.N.'s education was not fair because plaintiff "earns much more" than she does.

As stated previously, the court denied the relief sought by defendant and terminated plaintiff's child support obligation for A.N. In his decision on the record, the judge made clear that he was doing so without prejudice. The judge noted that, in determining the respective obligations of the parties for A.N.'s education, he was required to consider the factors enumerated in Newburg v. Arrigo, 88 N.J. 529 (1982). The judge stated that defendant had not provided evidence addressing those factors. The judge further opined that, once he had considered the Newburg factors, he would be in a position to determine whether plaintiff should pay child support while A.N. was attending college. We find no abuse of discretion in the judge's handling of these issues.

In Newburg, the Court stated that emancipation of a child generally occurs when a parent relinquishes the right to custody and is relieved of the duty to support a child. Id. at 543. There is a rebuttable presumption that emancipation occurs when a child reaches the age of majority, which is presently eighteen years of age. Ibid. However, "[w]hether a child is emancipated at age [eighteen], with the correlative termination of the right to parental support, depends upon the facts of each case." Ibid. The Court observed that, "[g]enerally parents are not under a duty to support children after the age of majority. Nonetheless, in appropriate circumstances, the privilege of parenthood carries with it the duty to assure a necessary education for children." Ibid.

The Court added that "financially capable parents" ordinarily "should contribute to the higher education of children who are qualified students." Id. at 544. Depending upon the circumstances, a parent may be required to "assure children of a college and even of a postgraduate education[.]" Ibid. In evaluating a claim for contribution towards the cost of higher education, the trial court should consider "all relevant factors," including the following:

(1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; (2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education; (3) the amount of the contribution sought by the child for the cost of higher education; (4) the ability of the parent to pay that cost; (5) the relationship of the requested contribution to the kind of school or course of study sought by the child; (6) the financial resources of both parents; (7) the commitment to and the aptitude of the child for the requested education; (8) the financial resources of the child, including assets owned individually or held in custodianship or trust; (9) the ability of the child to earn income during the school year or on vacation; (10) the availability of financial aid in the form of college grants and loans; (11) the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and (12) the relationship of the education requested to any prior training and to the overall long-range goals of the child.

[Id. at 545.]

Here, the parties had agreed in the PSA to an equal division of the costs of A.N.'s college education. In her motion, defendant sought relief from that provision of the agreement. Defendant argued that this provision was unconscionable because she was not capable of bearing that financial burden and plaintiff earns more money than she does. Therefore, it was incumbent upon defendant not only to present evidence that addressed the Newburg factors, but also to present evidence that established grounds under Rule 4:50-1 for relief from the relevant provision of the PSA. We are convinced that the judge did not abuse his discretion by denying defendant's motion without prejudice because she failed to present sufficient evidence to address those issues.

We also are convinced that the judge did not err in denying defendant's motion for an increase in child support payments and terminating plaintiff's obligation for child support as of August 8, 2007. Here, the record established that A.N. had enrolled in college. It appears that she was residing at various times in her parents' respective residences, although there was a dispute between the parties as to the number of nights that A.N. was staying with defendant each week. In any event, A.N. had reached the age of majority, was working, and receiving some financial assistance from plaintiff. In our view, the judge properly concluded that the issue of whether plaintiff should pay child support for A.N. while she attends college should be considered along with the issue of the parties' respective obligations for the costs of A.N.'s education.

Indeed, the Newburg factors require the court to consider the child's own resources, her ability to earn income while in school, available financial aid, and the financial resources of the parents. Evidence regarding those factors will have an important bearing upon whether defendant should be required to pay child support while A.N. attends college.

We note that the child support guidelines state in pertinent part that the support schedules

shall not be used to determine parental contributions for college or other post-secondary education . . . expenses nor the amount of support for a child attending college. The child support guidelines may be applied in the court's discretion to support for students over 18 years of age who commute to college.

[Pressler, Current N.J. Court Rules (2008), Appendix IX-A to R. 5:6A at 2301 (2008).]

Thus, the child support guidelines permit, but do not require, support payments in these circumstances. The matter is left to the sound discretion of the trial court.

We are satisfied that the judge did not abuse that discretion by granting plaintiff's motion to terminate child support, with the understanding that the issue of child support may be revisited by the trial court if defendant presents evidence warranting further review of the parties' respective obligations for A.N.'s college costs.

III.

We next consider defendant's contention that the judge erred by denying her application for relief from the provision of the PSA in which she waived any claim she might have for alimony or support. Defendant argues that the judge should have set aside this provision of the agreement and ordered plaintiff to pay her alimony. Again, we disagree.

It is well established that courts have the equitable power to modify property settlement agreements executed by the parties in divorce proceedings. Miller v. Miller, 160 N.J. 408, 418 (1999) (citing Conforti v. Guliadis, 128 N.J. 318, 323 (1992) and other cases). Any such "agreement must reflect the strong public and statutory purpose of ensuring fairness and equity in the dissolution of marriages." Ibid. (citing Peterson v. Peterson, 85 N.J. 638, 644 (1981)). A property settlement agreement may be reformed on the basis of unconscionability if the agreement was arrived at under egregious circumstances. Ibid. (citing Guglielmo v. Guglielmo, 253 N.J. Super. 531, 542 (App. Div. 1992)). "Matrimonial agreements may also be reformed when, through a common mistake, or mistake of one party accompanied by concealment of the other, the agreement fails to express the real intent of the parties." Id. at 419 (citing Capanear v. Salzano, 222 N.J. Super. 403, 407 (App. Div. 1988)).

Here, the trial court properly found that defendant failed to establish grounds for relief from the judgment of divorce and the PSA. The judge noted that defendant had argued that her attorney, Gerald Spall, had become ill during the course of his representation and he did not return to work after July, 2005. The judge found that Mr. Spall was a skilled practitioner in the field of family law and there was no evidence that suggested that he was not "of sound mind and was not doing what he always did at his best of protecting his client."

The judge also noted that Carol J. Kernan had assumed responsibility for representing defendant when the PSA was presented to the court for its approval on August 2, 2005. At the August 24, 2007 hearing, Ms. Kernan conceded that she had reservations regarding the PSA when it was presented to the court in August 2005 and advised defendant accordingly but defendant elected to proceed with the agreement. Furthermore, Ms. Kernan stated that, when the PSA was presented to the court in August 2005, defendant stated on the record that she believed the agreement was fair. Thus, this is not a case where defendant entered the agreement to waive alimony and support as the result of fraud or overreaching on the part of plaintiff.

Moreover, there is no evidence that the agreement was the result of a mistake or failed to reflect the "real intent of the parties." Ibid. Defendant asserts that, when she entered the agreement, she believed that she would be able to support herself through her massage therapy business. Apparently, she has not been able to do so. Nevertheless, there is no evidence that defendant's agreement to waive her claim for alimony and support in exchange for certain monetary concessions was the result of any mistake on her part as to the terms of the agreement. In addition, the intent of the parties as to defendant's waiver of her claim to alimony or support was clearly spelled out in the plain language of the agreement.

Defendant maintains, however, that the agreement is nonsensical. She notes that the agreement states that she will receive $36,000 as "lump sum alimony" but also states that she will receive an additional $14,000 in consideration of her waiver of "lump sum alimony." We agree that the language of the agreement could have been more precise. Nevertheless, the intent of the parties to have defendant waive her claim for alimony and support in exchange for the payment of $50,000 is clear.

Defendant also argues that the agreement is unconscionable and unfair. In this regard, we note that in November 2005, a few months after the parties entered into the PSA, defendant moved in the trial court to enforce the PSA. As part of that application, defendant sought to compel compliance by plaintiff with the provision of the agreement in which she waived her claims to alimony and support in exchange for specific monetary concessions.

It appears that plaintiff had not paid defendant the $14,000 that he had agreed to pay in exchange for the waiver of defendant's claim for alimony or support. The court entered an order on November 14, 2005, requiring plaintiff to pay the $14,000 by November 30, 2005. Defendant did not suggest at the time that the PSA was in any way unfair or unconscionable. Indeed, she insisted upon enforcement of the very provision of the agreement from which she now seeks relief.

We agree with plaintiff that the parties bargained fairly for the results they obtained in the agreement. Defendant received her vehicle and business. Plaintiff paid defendant $110,000 for her interest in the former marital residence. Defendant received continued medical insurance benefits, a division of certain retirement benefits, as well as certain lump sum cash payments. In exchange, she agreed to waive her claim for alimony or support. Defendant obtained all of the financial benefits she bargained for and then sought to be relieved of her waiver of her alimony claim. We are convinced that the trial judge properly found that defendant had failed to establish any basis for such relief.

IV.

Defendant also seeks reversal of the provision of the trial court's August 24, 2007 order awarding plaintiff $750 in counsel fees for the time devoted by counsel to respond to defendant's motion. The counsel fees and costs awarded to plaintiff were modest and not in any sense disproportionate to the relief he obtained. "An allowance for counsel fees and costs in a family action is discretionary." Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004). We are satisfied that, in the circumstances presented here, the judge did not abuse his discretion by awarding counsel fees to plaintiff.

 
Affirmed.

(continued)

(continued)

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A-0574-07T3

July 7, 2008