ROBIN HORNE v. BRETT D. HORNE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4626-07T24626-07T2

ROBIN HORNE, n.k.a.

ROBIN MANFREDI,

Plaintiff-Respondent,

v.

BRETT D. HORNE,

Defendant-Appellant.

__________________________________

 

Submitted February 25, 2009 - Decided

Before Judges Rodr guez, Payne and Waugh.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-387-04.

Law Offices of John H. Rittley, LLC, attorneys for appellant (Mr. Rittley, of counsel and on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant Brett D. Horne appeals from orders of the Family Part that require him to: (1) pay for college expenses for his daughter Amanda; (2) reimburse plaintiff Robin Manfredi (formerly Horne) for certain expenses in connection with the marital residence; and (3) pay Manfredi's counsel fees. We affirm in part and remand in part.

The parties were divorced in 2004 after nineteen years of marriage. They have two children, Amanda and Nicole. Nicole was found to be emancipated in a November 2007 order and is not involved in this appeal. In an earlier appeal involving the parties, we determined that Amanda became emancipated when she became a part-time student and started full-time employment. Horne v. Horne, No. A-2043-07T2 (App. Div. Nov. 13, 2008).

I

As it relates to Amanda, this appeal concerns responsibility for payment for her first two years of college at Florida State University. The issue is governed by Paragraph 12 of the parties' property settlement agreement (PSA), which provides as follows:

The parties agree that, if the children have the ability, and if they are financially able to pay for the children's college education, which costs shall include tuition, room and board, books, and reasonable costs of transportation (4 round trips per year), the children shall either attend a state university or community college. The parties agree that the children shall apply and be responsible for all financial aid, loans, grants and scholarships available to them prior to either party contributing to their education. After all financial assistance is calculated, then the parties shall share that net amount due with the Husband being responsible for 60% and the Wife being responsible for 40%. Said college tuition shall not exceed the cost of two years of college at Rutgers the State University of New Jersey. The parties shall modify the then existing child support order when either child enters college. The Husband shall pay 60% costs for both children's college tuition, costs, fees, room and board. At that time, the Husband shall pay $800 per month in child support for the remaining unemancipated child and contribute 60% of the costs for the other child's college tuition, costs, fees, room and board during the (30) thirty weeks of the college year. The Wife shall contribute 40% of the college tuition, costs, fees, room and board for the child enrolled as a full time student. The parties agree that Husband shall pay the $1000.00 per month child support for the remaining 22 weeks of the year when the college classes are not in session. Said payments shall be made directly to the Wife. The parties agree to split the first two years of the college costs and tuition, including books, fees, room and board with Husband paying 60% and Wife paying 40%. Neither party shall have an obligation to contribute after the first two years of college for costs but the child support obligation shall continue until the child is emancipated as defined herein. This agreement is based upon the parties understanding of their respective earnings, Husband earning $95,000.00 and Wife earning $58,000.00. The Husband's share shall not exceed the equivalent of 60% of the cost of Rutgers the State University of New Jersey and that the Husband shall only be required to contribute for two years of college education for each child.

Unlike the parties in Gac v. Gac, 186 N.J. 535 (2006), and Newburgh v. Arrigo, 88 N.J. 529 (1982), the parties now before us discussed and agreed in advance on their respective obligations in the event their children sought to attend college. In such cases, the obligation of the courts is to interpret and enforce the parties' own agreement. Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995) (citing Petersen v. Petersen, 85 N.J. 638, 642 (1981)). We will not draft a new agreement for the parties. Ibid.; Rolnick v. Rolnick, 262 N.J. Super. 343, 352 (App. Div. 1993) (quoting Berkowitz v. Berkowitz, 55 N.J. 564, 569 (1970)).

Although Amanda and her father had discussed her attendance at college prior to the divorce, their relationship became strained thereafter. Consequently, he was not involved in her choice of Florida State. Nevertheless, Amanda asked Horne to attend her student orientation with her and he was initially willing to do so, but the plan fell through when Horne insisted on their being accompanied by his girlfriend.

It appears from the record that Amanda attended Florida State as a full-time student during the 2005-2006 and 2006-2007 academic years. She became a part-time student for the 2007-2008 academic year, during which she was also working full-time and attempting to establish Florida residency to lower her educational expenses.

On May 24, 2006, Manfredi filed a motion in aid of litigants rights, R. 1:10-3, seeking to enforce Horne's college-payment obligation under the PSA. A plenary hearing was held over several days during the second half of 2007. The trial judge determined that Horne was obligated to contribute to Amanda's tuition and that he was able to do so during the relevant period, noting in particular a significant discrepancy between the income reported by Horne to taxing authorities and on his application to refinance the former marital residence.

Our scope of review of the trial judge's factual findings is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1988); Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007). We are generally bound by the trial court's findings of fact "when supported by adequate, substantial, credible evidence." Cesare, supra, 154 N.J. at 411-12. This is especially so when questions of credibility are involved. Id. at 412. In addition, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.

We are satisfied from our review of the record that the trial judge's factual findings should not be disturbed with respect to the costs incurred by Amanda and Horne's ability to pay. Questions of credibility were for the trial judge to determine. Id. at 412. The expenses were documented and supported by testimony the trial judge found to be credible. Manfredi testified that the expenses at Florida State, including living expenses, were slightly more than tuition at Rutgers without including living expenses. However, the PSA requires the parents to contribute to both tuition and room and board during the first two years of college. Consequently, Horne's suggestion that the total cost at Florida State must be compared with tuition only at Rutgers is incorrect. Horne did not come forward with contrary evidence to support his claim that the applicable costs of attending Florida State exceeded those payable at Rutgers. Amanda did not become a part-time student until her third year, at which time she was emancipated pursuant to the PSA and, in any event, her parents obligation to pay two years of college expenses under the PSA had ended.

The loan at issue was taken out by Amanda and guaranteed by her maternal grandfather. It was not the type of subsidized student loan referred to in the PSA. The trial court was satisfied that Amanda applied for, but did not receive, financial aid.

With respect to Horne's ability to pay, the trial court's determination that Horne understated his income was supported by the record and the credibility findings. As noted, Horne made significantly different representations about his income and income-producing capacity depending upon the forum, court, or loan application, involved.

We also reject Horne's contention that the trial judge unduly favored Manfredi because she was representing herself. We find no support for that assertion in the record. The sua sponte reopening of testimony by the trial judge to address Newburgh factors was well within his discretion. See Newburgh, supra, 88 N.J. at 545. It must be noted that the educational expenses sought were for the benefit of Amanda, not Manfredi.

Consequently, we affirm the trial court's orders with respect to Horne's obligations to pay for Amanda's first two years of college, as he agreed to do in the PSA.

II

Horne also appeals from the award of counsel fees to the attorney who filed the motion on Manfredi's behalf, although she was pro se at the time of the evidential hearings. In his written opinion of January 29, 2008, the trial judge stated:

I have found defendant in violation of litigant's rights. I have granted most of the relief requested by the plaintiff. I find that there is bad faith on the part of the defendant in misstating his income. I, therefore, conclude that plaintiff is entitled to counsel fees for the motion that was filed on May 24, 2006.

"The award of counsel fees in matrimonial actions is discretionary with the trial court, R. 4:42-9(a)(1), and an exercise thereof will not be disturbed in the absence of a showing of abuse." Berkowitz, supra, 55 N.J. at 570. See also R. 5:3-5(c). "We recognize the historical right of trial judges to exercise discretion to award counsel fees in certain matrimonial cases pursuant to Rule 4:42-9(a)(1), without always requiring a plenary hearing where there is a dispute." Jacobitti v. Jacobitti, 263 N.J. Super. 608, 619 (App. Div.), aff'd, 135 N.J. 571 (1993).

Our review of the issue of counsel fees has been hampered by the fact that the underlying order of March 28, 2008, which set the amount of the fees, and any statement of reasons by the trial judge are not contained in the record. "[A] trial court must analyze the [relevant] factors in determining an award of reasonable counsel fees and then must state its reasons on the record for awarding a particular fee." R.M. v. Supreme Court of New Jersey, 190 N.J. 1, 12 (2007).

In any event, it appears from the pleadings contained in the record that Horne's attorney did not timely receive the certification of services filed by Manfredi's former counsel and that he did not know that an application had actually been made until shortly before he received the trial court's March 28, 2008, order granting counsel fees. He raised the issue by motion, but the trial judge declined to address the issue because of the pending appeal. Consequently, we remand the issue for further consideration by the trial judge and do not retain jurisdiction.

III

After considering Horne's remaining contentions in light of the record, his brief, and the applicable law, we conclude they are without sufficient merit to warrant discussion in a written opinion and affirm substantially for the reasons set forth in the trial judge's comprehensive written opinion dated January 29, 2008, and his statement of reasons for denying the motion for reconsideration dated April 18, 2008. R. 2:11-3(e)(1)(E).

Affirmed in part and remanded in part.

 

Because our prior opinion incorrectly states that Amanda was emancipated at the end of her first year of college, we will enter an order correcting the date of emancipation.

We also note that Rule 4:42-9(d) requires that an award of counsel fees be contained in the order or judgment granting the substantive relief, rather than in a separate order.

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A-4626-07T2

April 3, 2009