ANTOINETTE CANOVA v. JOSEPH S. CANOVA, SR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0839-07T20839-07T2

ANTOINETTE CANOVA,

Plaintiff-Respondent,

v.

JOSEPH S. CANOVA, SR.,

Defendant-Appellant.

______________________________________

 

Submitted January 27, 2009 - Decided

Before Judges Skillman and Grall.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Passaic County, Docket No. FM-16-1139-05.

Johnson, Murphy, Hubner, McKeon, Wubbenhorst, Bucco & Appelt, attorneys

for appellant (Christopher I. Woods, on

the brief).

Post, Polak, Goodsell, MacNeill & Strauchler, attorneys for respondent

(Nicole A. Casciola, on the brief).

PER CURIAM

Plaintiff Antoinette Canova and defendant Joseph S. Canova, Sr., were divorced on March 8, 2006. An oral agreement resolving all issues was placed on the record that day and that agreement was reduced to writing and incorporated in an amended final judgment on March 30, 2006. On August 17, 2007, the court granted plaintiff's motions to enforce the judgment and awarded counsel fees. On October 9, 2007, the court modified that order on defendant's motion for reconsideration and plaintiff's cross-motion to enforce. Defendant appeals from the orders entered on October 9, 2007.

The following facts are pertinent to the issues presented on this appeal. The Canovas have three children; the eldest was emancipated when his parents divorced. At the time of these motions, the Canovas' son Michael was attending college and their daughter Stephanie was attending high school. The present dispute concerns the scope of defendant's obligation to contribute to support his children.

Defendant's obligations to his children are addressed in the judgment. He must pay $200 per week in child support for Stephanie until she either graduates from college or is emancipated. In addition to and "above and beyond child support" due, defendant must pay $300 "on September 30 and March 30" of each year as "a clothing allowance" for Stephanie, until she "graduates from college." And, defendant must "provide Stephanie with a vehicle at his sole cost and expense," and pay fifty percent of "any" unreimbursed medical expenses for the children not covered by insurance.

The agreement specifies the parents' respective obligations to pay for their children's activities and college expenses. Paragraph eighteen provides, "each party shall pay 50% toward all extracurricular expenses for the parties' children until each child is emancipated." Paragraph sixteen provides, "it is anticipated that each party shall pay 50% of the children's college costs and tuition expenses after any scholarships or grants, based on each party's ability to pay at the time the child is to attend college."

Finally, the agreement addresses enforcement of the judgment. Paragraph twenty-two provides, "Husband agrees that if he violates the terms of this agreement, he shall be responsible for Wife's reasonable counsel fees and costs incurred in enforcing the provisions of this agreement." When the agreement was placed on the record, plaintiff's attorney acknowledged that the Canovas agreed "if either party

violates . . . the terms of this settlement, [that party will] be responsible for the other's reasonable counsel fees."

Defendant objected to plaintiff's request to compel him to contribute to one-half the cost of extracurricular activities, medical bills, college expenses and car insurance. He contended that the judgment should be read to require him to pay only one-half of the unreimbursed medical expenses in excess of $250 per year per child and that his obligation to pay one-half of the expenses for extracurricular activities should be read to exclude any expenses included in a child support award calculated pursuant to the child support guidelines. See Child Support Guidelines, Pressler, Current N.J. Court Rules,

Appendix IX-A to R. 5:6A at 2320-22 (2009) (addressing medical expenses and activities covered by a basic child support award). The court rejected defendant's interpretation of the judgment. It concluded that the parties' agreement obligated defendant to pay one-half of "any" medical expenses not covered by insurance and all extracurricular activities in addition to $200 weekly support.

Defendant also argued that while the judgment required him to provide a car, it did not require him to contribute to the cost of insuring that car. Plaintiff had submitted a letter from her insurance agent dated June 28, 2007 indicating that the additional premium would be $3288 for the period between July 19, 2007 and March 8, 2007. She agreed, however, to pay one-half of the cost.

The court rejected defendant's interpretation of the provisions of the judgment stating his obligations with respect to Stephanie's car. The court concluded that in agreeing to provide "a vehicle at his sole cost and expense," defendant assumed the responsibility for insurance necessary to operate the vehicle.

Finally, defendant objected to paying fifty percent of his share of the college expenses until the court determined the parties' respective ability to pay. The court concluded that the parties' agreement, which expressly noted the parties' expectation that each would pay one-half of this expense, contemplated calculation of the parties' respective income only upon a showing of a change in one party's ability to pay.

Accordingly, the court entered orders requiring defendant to pay a total of $2700.76 for his share of the children's college expenses and extracurricular costs incurred during the period beginning March 2006 through May 2007 plus $1644 for car insurance. In addition the court required defendant to pay plaintiff $1500 for counsel fees and costs, which was one-half of the amount charged by her attorney.

On defendant's motion for reconsideration, he raised the same issues concerning construction of the agreement incorporated in the judgment and contended that the child support payments required by the judgment, as construed by the court, were inconsistent with the child support guidelines and excessive. He also claimed that plaintiff had misrepresented the cost of the car insurance. He supported that claim with a policy change notice issued to plaintiff on July 13, 2007, which reflected a charge of $606.44 for insuring another car on plaintiff's policy from June 25, 2007 to March 1, 2008. On the ground of her alleged misrepresentation, he asked the court to vacate the provision of the prior order awarding counsel fees and costs and enter an order compelling plaintiff to pay his fees and costs.

In response, plaintiff noted that she had reported the cost of insurance stated in her agent's letter. She admitted that she had not yet received confirmation of the exact cost.

Defendant raises the following issues on appeal.

I. THE COURT BELOW COMMITTED CLEAR LEGAL

ERROR BY FAILING TO CONSIDER THE SUPREME COURT CHILD SUPPORT GUIDELINES.

A. The trial court erred as a matter

of law by refusing to interpret the applicable provisions of the Judgment of Divorce which served as the legal and factual basis for Defendant's opposition to Plaintiff's application.

B. The Trial Court refused to review

the child support guidelines submitted by Defendant and refused to incorporate the Supreme Court Guidelines Appendix IX-A concerning the items, which should have been included in Defendant's child support obligation and excluded as "extracurricular expenses."

II. THE TRIAL COURT COMMITTED CLEAR LEGAL

ERROR IN ITS DECISION ON THE MOTION FOR RECONSIDERATION BECAUSE IT FAILED TO CONSIDER NEW EVIDENCE AND LEGAL ARGUMENT ASSERTED BY THE DEFENDANT.

A. The trial court failed to properly

consider the Child Support Guidelines Worksheet produced by Defendant on the Motion for Reconsideration.

B. The trial court should have found

that Plaintiff fraudulently

misrepresented herself in the

original Motion Hearing, and thus

was not entitled to the attorneys

fees and costs originally awarded.

Defendant's objections to the court's interpretation of the parties' agreement in relation to the child support guidelines lack sufficient merit to warrant more than brief comment in a written opinion. R. 2:11-3(e)(1)(E); R. 5:6A. The unambiguous terms of the parties' agreement require defendant to pay $200 per week plus one-half of "any" medical expenses not covered by insurance and one-half the cost of extracurricular activities. Moreover, the court reasonably concluded that the agreement, in requiring defendant to "provide Stephanie with a vehicle at his sole cost and expense," contemplated his payment of the cost of car insurance.

Defendant's observation that a child support award calculated pursuant to the guidelines includes the first $250 of unreimbursed medical expenses and an amount for transportation and activities is clearly correct. Pressler, supra, Appendix IX-A to R. 5:6A at 2320-22. But Rule 5:6A permits parents to agree to pay support beyond that required by the guidelines, and when they do, they are bound by that agreement. Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006).

Defendant's objection to the amount the trial court required him to pay for insurance has merit. The papers submitted on the motion for reconsideration demonstrated that plaintiff had received two very different statements of the price of the insurance and did not yet know the cost. Accordingly, the court should have denied as premature her request to fix the amount due for insurance.

We also conclude that the trial court's interpretation of the parties' agreement on college expenses cannot be sustained. Based on the parties' expression of an "anticipated" allocation of responsibility, the trial court determined that expenses should be shared equally, absent a showing of a change in circumstances relevant to ability to pay. See Lepis v. Lepis, 83 N.J. 139, 146-47 (1980). Because any agreement concerning child support may be modified upon an adequate showing of a change in relevant circumstances, the trial court's interpretation gives no effect to the clause that requires consideration of "each party's ability to pay at the time the child is to attend college" without reference to changed circumstances. See ibid.

Plaintiff offers a construction that gives effect to both provisions. She contends that the "anticipated" equal division of responsibility controls absent a proper request for a determination of ability to pay. Because plaintiff's construction is consistent with terms of the agreement and does not render any term meaningless, we conclude that it is the correct interpretation. Cumberland County Improvement Auth. v. GSP Recycling Co., 358 N.J. Super. 484, 497 (App. Div.), certif. denied, 177 N.J. 222 (2003).

Despite our rejection of the trial court's interpretation of the agreement, we conclude that defendant is not entitled to relief from the present orders. Defendant did not file a motion or cross-motion seeking allocation of responsibility for college costs, and plaintiff sought nothing more than reimbursement for college expenses previously paid. For that reason, we see no basis for disturbing the trial court's order fixing the amount due for expenses incurred before defendant requested an allocation different than the equal division anticipated by the agreement. Nor do we find grounds that would permit us to conclude that the trial court abused its discretion in declining to consider defendant's request on his motion for reconsideration. See R. 4:50-1; Eaton v. Grau, 368 N.J. Super. 215, 222-23 (App. Div. 2004) (discussing determination and review of motions for reconsideration).

To summarize our conclusions with respect to college expenses, the judgment permits defendant to file an application to determine the allocation of college expenses at any time and without a preliminary showing of changed circumstances warranting modification. Absent such a request, however, the equal division of responsibility "anticipated" in the agreement controls.

Defendant's additional arguments do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed in part, reversed in part and remanded for entry of an order in conformity with this opinion.

 

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A-0839-07T2

April 24, 2009