ROBIN S. ROSEN v. PHILIP S. ROSEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0504-08T10504-08T1

ROBIN S. ROSEN,

Plaintiff-Respondent,

v.

PHILIP S. ROSEN,

Defendant-Appellant.

_______________________________

 

Submitted October 14, 2009 - Decided

Before Judges Carchman and Ashrafi.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Bergen County,

Docket No. FM-02-1943-98.

Philip S. Rosen, appellant pro se

Robin S. Rosen has not filed a brief.

PER CURIAM

Pro se defendant Philip Rosen appeals from two orders of the Chancery Division, Family Part, denying parts of his motion for post-judgment relief and denying the same relief upon reconsideration. Plaintiff Robin Rosen has not filed a responding brief. Philip contends that the family court made several errors concerning his applications to claim the parties' daughter as an exemption for the 2006 and 2008 tax years and also to take a college tuition tax credit for those years. He asserts the value of those tax items to him is at least $4,200.

We have reviewed the incomplete record provided in Philip's appendix filed on this appeal. We conclude that the family court did not abuse its discretion in denying Philip's motions. See, e.g., Brown v. Brown, 348 N.J. Super. 466, 475 (App. Div.) (appellate court defers to rulings of family court that are supported by substantial credible evidence), certif. denied, 174 N.J. 193 (2002); LaSala v. LaSala, 335 N.J. Super. 1, 6 (App. Div. 2000) (abuse of discretion standard applicable to distribu-tion of marital assets). We affirm.

I.

Philip and Robin were divorced in January 2000. A property settlement agreement (PSA) was incorporated in the judgment of divorce. Regarding their only child, Mallory, born in 1986, the parties agreed to joint legal custody with Robin designated as the parent of primary residence. Philip agreed to pay child support to Robin. The PSA also contained general provisions regarding sharing of information about Mallory's education and medical needs.

The parties agreed they would alternate the right to declare Mallory as a dependent on income tax returns, Philip taking odd-numbered years. Robin could declare Mallory as a dependent in even-numbered years provided that she was working full-time, which was defined as employment of thirty-five hours per week on average for any nine-month period during the calendar year.

At the time of the divorce, the parties maintained a college fund for Mallory valued at $28,500. Robin was designated custodian of the fund subject to stated limitations and obligations with respect to her management of the fund and Philip's participation. One-fourth of the college fund was to be applied to each undergraduate year, and, after available financial aid and loans, Philip was responsible for sixty percent and Robin forty percent of any remaining balance of college expenses up to a maximum equivalent to expenses at Rutgers University.

The fund grew to $32,000 after the divorce. At that time, Philip, who is a certified public accountant, advised Robin to reinvest it in a plan he described as NJ Best 529 because of several advantages of that plan, including a moral obligation clause by which the State of New Jersey guaranteed preservation of the principal. Robin did not heed his advice.

After the stock market fell in September 2001, the college fund dropped to $14,000 in value. Angered that Robin had allowed the fund to diminish, Philip moved to preclude Robin from demanding that he pay for Mallory's college expenses. In response, Robin represented that she and Mallory would pay for college expenses above the remaining fund. In March 2004, the family court dismissed Philip's motion without prejudice. The court observed that Robin could not waive Mallory's right to claim college expenses from her father but that Philip's motion was not ripe for adjudication because no claim had been made at that time that he pay college expenses.

In 2005, the parties brought cross-motions pertaining to child support and the college fund. Robin sought a declaration that Mallory was not emancipated because she was attending college and that Philip was still obligated to pay child support. Philip sought information about the college fund and college expenses and also sought sanctions against Robin for allegedly failing to abide by the terms of the PSA. The parties reached a settlement of the issues, which was embodied in an order of May 10, 2005. They stipulated that Mallory was not emancipated at that time because she was a full-time college student. They expected that she would graduate in spring 2008. Robin waived any claim for retroactive child support and agreed not to seek an increase in child support for at least one year.

In provisions relevant to this appeal, the order of May 10, 2005, stated in paragraph four:

As plaintiff is not requesting contribution from defendant toward their daughter's college expenses, plaintiff shall not have any obligation to provide defendant with an accounting or documentation, past, present or future, concerning their daughter's college account. Likewise, she shall have no obligation to provide defendant with information concerning financial aid or the child's income. However, should plaintiff or their daughter seek contribution from defendant toward their daughter's college expenses in the future, she shall be obligated to comply with all disclosure requirements set forth in the Property Settlement Agreement.

Paragraph seven of the order provided that Philip would claim Mallory as a tax exemption for 2005 provided that he paid child support on time. Regarding the tax exemption for upcoming even-numbered years, paragraph ten stated:

[Robin] shall promptly advise [Philip] by January 1, 2007 and January 1, 2009 whether [Robin] has been employed, full time, for a minimum of 39 weeks in CY [calendar year] 2006 and 2008 so that [Philip] can tax plan and take income tax deductions for daughter in accord with the PSA.

No provision in the PSA or any order had previously addressed an obligation on the part of Robin to inform Philip about the particulars of her employment status. In a note dated November 17, 2006, Robin wrote to Philip, "This letter is to inform you that I have been working full time. I will take Mallory as a dependent on my income tax return for the year 2006."

In 2008, Philip moved to declare Mallory emancipated, to declare that Robin had violated the order of May 10, 2005, to impose sanctions for those violations, to obtain information from Robin and Mallory's college regarding her full-time status and her college bills, to require Robin to document her employment status, and to award punitive damages to Philip. Robin opposed the motion. Both parties waived oral argument. By order dated June 20, 2008, the family court granted Philip's motion to declare Mallory emancipated, finding that she had graduated from college on May 20, 2008. It relieved Philip of further payment of child support or maintenance of life insurance for the benefit of Mallory. The court denied the remainder of Philip's requests.

Philip then filed a motion for reconsideration and requested oral argument. The court denied oral argument and later denied the motion for reconsideration by order dated August 15, 2008, setting forth in the order detailed reasons for the denial. See R. 1:7-4. Philip filed a timely notice of appeal from the orders of June 20, 2008, and August 15, 2008.

II.

Philip's appeal suffers from deficiencies and distractions often found in pro se matrimonial litigation; instead of providing a complete record and relying exclusively on that record, Philip vilifies his ex-wife and makes disjointed and sometimes irrelevant arguments. Notwithstanding these deficiencies, we address the merits of the appeal.

Philip appeals from the first six provisions of the June 20, 2008, order and the entirety of the August 15, 2008, order. Only some of his arguments warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E). We note briefly that his procedural arguments fail because the court gave sufficient explanation for its rulings in the latter order, see R. 1:6-2(f), and the court exercised permissible discretion in denying oral argument on the motion for reconsideration, see R. 5:5-4(a).

Concerning the substance of his claims, Philip essentially argues that he should be permitted to declare Mallory as his dependent for 2006 and 2008 and that Robin cannot benefit from college tax credits if she had no income during those even-numbered years. He states that tax credits are available only if the child is a dependent and that he needs documented information about college expenses to be able to take the credits for all years of Mallory's attendance as an undergraduate. He argues that Robin's waiver of additional payments from him for college expenses is irrelevant because his earlier contributions to the college fund make him eligible to take the tax credits.

For purposes of the appeal, we will accept the premise of Philip's argument that he contributed to the college fund and that he is eligible to take tuition tax credits if he declares Mallory as his dependent during even-numbered years. We cannot tell by the record Philip has provided whether Robin could also benefit by the tax credit in those years, but we need not make that determination.

The PSA stated generally that both husband and wife were "entitled to complete and full information" from teachers and schools and that "[t]he parties shall consult with each other with respect to the child's education." Later, paragraph four of the order of May 10, 2005, quoted previously, relieved Robin of providing information to Philip regarding the college account or Mallory's college expenses in consideration for her waiving any claim against Philip for college expenses. Only if Robin or Mallory demanded in the future that Philip pay college expenses would disclosure obligations referenced in the PSA be revived. Robin and Mallory never demanded that Philip pay additional amounts toward Mallory's college expenses. Consequently, the family court ruled correctly that Robin had no obligation to provide information to Philip about Mallory's college expenses.

The PSA gave Robin the right to declare Mallory her dependent in 2006 and 2008 if Robin was working full-time. The PSA contained no provision obligating Robin to establish her employment status by means of paystubs, tax forms, or an IRS transcript as Philip demanded in his 2008 motions. Paragraph ten of the order of May 10, 2005, required that Robin advise Philip by January 1, 2007 and January 1, 2009, whether she was employed full-time for the previous year. At the time of the orders appealed from, the deadline for the 2008 tax year had not passed. As to 2006, the family court found that Robin's November 17, 2006 letter to Philip fulfilled her obligation. The letter stated that Robin was working full-time in 2006 and would take Mallory as a dependent exemption on her tax return.

We find no abuse of the court's discretion in crediting Robin's letter as sufficient to satisfy the obligation established by the May 10, 2005, order. See Clarke v. Clarke, 349 N.J. Super. 55, 58 (App. Div. 2002) (appellate court is bound to give substantial deference to discretionary rulings of family court). When the parties entered into the PSA in January 2000, they did not agree that Robin would provide documentation of her employment status to Philip's satisfaction. In fact, the premise of the PSA was that the parties would alternate taking a dependent exemption for Mallory unless Robin was not working full-time. Nothing in the record shows that Robin's statement about her employment in 2006 was false.

We find no error in the family court's disposition of Philip's motions. The orders of June 20, 2008, and August 15, 2008, are affirmed.

In using the parties' first names, we sacrifice formality for easier reference by the reader.

The appendix does not include the motion papers that are the subject of this appeal, only the court's orders. See R. 2:6-1(a)(1)(I) (appellant's appendix shall contain "such other parts of the record, excluding the stenographic transcript, as are essential to the proper consideration of the issues"); Soc'y Hill Condo. Ass'n v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177 (App. Div. 2002).

An order to that effect is not contained in the appendix, but a statement of reasons for the order is included.

On the motion for reconsideration, the judge of the family court found that Philip was "acting in less than good faith" in bringing the motions, which were the ninth and tenth post-judgment motions since the parties' divorce in January 2000. Robin had been represented by counsel in some of the earlier motions. Although a listing of all previous motions is not included in the record on appeal, many if not all of them pertained to the same subject, the parties' college fund for their daughter. Another judge had previously made a similar finding that Philip was not acting in good faith.

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A-0504-08T1

December 11, 2009