RUTH ANN MITCHELL v. FRED MITCHELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2679-08T22679-08T2

RUTH ANN MITCHELL,

Plaintiff-Appellant,

v.

FRED MITCHELL,

Defendant-Respondent.

________________________________________________________________

 

Argued January 11, 2010 - Decided

Before Judges Baxter and Coburn.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-263-07.

Nina Rossi argued the cause for appellant.

Laurence R. Sheller argued the cause for respondent (Graziano, Sumners & Young, LLC, attorneys; Renee Lamarre-Sumners, on the brief).

PER CURIAM

Plaintiff Ruth Ann Mitchell appeals from a December 15, 2008 order that denied her motion for enforcement of litigant's rights concerning a trust account for college tuition for the parties' son, declined to order the transfer of the parties' cat, and denied her request for counsel fees. We reject plaintiff's claim that her status as joint legal custodian of her college-age son obligates defendant Fred Mitchell to submit an accounting of the funds withdrawn from the trust account. We also agree with the judge's conclusion that in the absence of an agreement between the parties or a prior court order, defendant is not obligated to provide the son with a specified weekly allowance. We also see no basis to interfere with the motion judge's determination that the cat should remain with defendant, and that plaintiff should not be awarded counsel fees. Last, although we agree with plaintiff that the parties' marital settlement agreement (MSA) appears to specify that defendant is obliged to provide plaintiff with advance notice before making withdrawals from the trust account, the motion judge made no ruling, and consequently there is no order on that subject for us to review. We affirm.

I.

Plaintiff Ruth Ann Mitchell and defendant Fred Mitchell were divorced on December 5, 2007. One child was born of the marriage, a son, born in the spring of 1990; he is currently enrolled in college. The MSA specifies that the son's college tuition and other college expenses are to be paid from a Schwab account, for which defendant is designated the custodian. The account consists of joint marital monies and was established under the Uniform Transfer to Minors Act.

Although the parties share joint legal custody of their college-age son, defendant is the parent of primary residence, and plaintiff the parent of alternate residence. In addition to her earlier contribution to the joint funds in the Schwab account, plaintiff pays $145 per week in child support to defendant.

In relevant part, the MSA specifies that:

5.2 Payment of [the son's] College Expenses:

Currently, there is one account that exists and is expected to be utilized . . . to defray [the son's] college expenses: Charles Schwab UTMA account number *****765 . . . . Both parties shall be entitled to receive quarterly or annual statements from the aforesaid account as well as notice of anticipated expenditures. Payment of all [the son's] college expenses, defined in section 5.3 below, shall be paid by the funds in the aforesaid account. To the extent the aforesaid account does not defray [the son's] four years of college expenses, the Husband shall pay the . . . unpaid college expenses at the time of the event.

[(Emphasis added).]

On November 5, 2008, plaintiff filed the motion for enforcement of litigant's rights that is the subject of this appeal. In her motion, she sought: to compel defendant to submit an accounting, along with receipts and other supporting documents of monies withdrawn from the Schwab account; to compel defendant to provide the son with a regular, weekly allowance in order to obviate the son's alleged need to spend his own money on necessities; to compel defendant to provide her with monthly statements for the Schwab account or, alternatively, to provide her with online access; and to compel defendant to return her cat. Plaintiff also sought counsel fees.

In support of her request that defendant be ordered to provide her with monthly account statements, plaintiff alleged that she had not been receiving such statements for the Schwab account. After her motion was filed, her attorney began to receive monthly statements, thus making that issue moot.

Although plaintiff had begun to receive the monthly statements, she argued that although the statements reflected the dates and dollar amount of withdrawals from the Schwab account, defendant had not provided her with any prior notice before making the withdrawals, in violation of section 5.2 of the MSA that so required. Plaintiff also maintained that defendant had not provided her with documentation of how the withdrawals in question were applied to the son's college expenses.

In reply to plaintiff's motion, defendant provided plaintiff with a spreadsheet to document each withdrawal; however, plaintiff continued to assert that the figures on the spreadsheet did not match the dollar amounts withdrawn from the Schwab account.

On the subject of defendant's alleged obligation to provide the parties' son with a weekly allowance of $70, plaintiff pointed to an unsigned Memorandum of Understanding (Memorandum). The Memorandum refers to an April 23, 2008 meeting of the parties and their attorneys. According to the Memorandum, the parties agreed during that meeting that defendant would provide the son with $70 per week as an allowance. The Memorandum is not signed by either party; at the bottom, there is a notation that it had been drafted by plaintiff's then-attorney. Defendant denied that the Memorandum constituted a binding agreement, pointing to the absence of any signatures.

As to the cat, plaintiff asserted that during the marriage, she was the one who had taken care of the cat. She maintained that after the separation, when the parties' son began living with defendant, she agreed that the cat would live with defendant because of the son's attachment to the cat. She insisted that her agreement regarding the transfer of the family pet was expressly conditioned upon defendant's agreement to properly care for the animal.

Plaintiff also argued that in the two years that the cat had been living with defendant, the only occasions on which the cat had been taken to a veterinarian for checkups was when she had taken him there. The only evidence of any neglect of the cat by defendant consisted of plaintiff's contention that the cat had lost one pound while living with defendant.

The judge denied plaintiff's motion in its entirety, including her request for counsel fees. The judge also denied defendant's cross-motion for counsel fees. In particular, the judge reasoned that the issue of compelling defendant to provide monthly statements from the Schwab account was moot because plaintiff was currently receiving such statements. The judge denied plaintiff's request for a monthly accounting of the expenditures from the Schwab account because the MSA did not so provide, and nothing in the relevant case law establishes such an obligation. As to plaintiff's request that defendant be required to provide the son with a $70 weekly allowance, the judge found the Memorandum to be merely a proposal by plaintiff's attorney that established no binding legal obligation. He denied the request for transfer of the cat back to plaintiff because there was no evidence that defendant had mistreated the cat, and the son would be able to continue to see the cat while with his father during college recesses.

On the issue of plaintiff's claim that section 5.2 of the MSA obligated defendant to provide her with advance notice of any withdrawals from the Schwab account, the judge never made any findings, either in his written tentative decision or his oral ruling. Nor did he include any ruling on that subject in his order of December 15, 2008.

The judge denied plaintiff's counsel fee request, reasoning that each side had "raise[d] legitimate arguments" and neither one had acted "in bad faith."

II.

Although we are obliged to afford substantial deference to the Family Part's findings of fact due to that court's special expertise in family matters, Cesare v. Cesare, 154 N.J. 394, 411-12 (1998), we owe no deference to the judge's conclusions of law, which are reviewed de novo, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

III.

In Point I, plaintiff argues that the judge erred in refusing to require defendant to provide an accounting of the withdrawals from the Schwab account. She asserts that because she has joint legal custody of her son, she has an obligation to obtain an accounting "to assure that [the son's] education is secure. . . . Defendant's failure to provide a detailed accounting of monies spent from the Schwab account prevents plaintiff from fulfilling her obligation to [her son]." She maintains that "the only way that she can fulfill her obligation as legal custodian . . . is for a court to order that defendant provide her with documentation of [all] transactions on the Schwab account."

Other than a reference in her brief to opinions that stand for the broad proposition that a parent is obliged, where possible, to provide an education for his or her offspring, plaintiff provides no legal authority in support of the precise proposition she has advanced. In the absence of any showing of wrongdoing by defendant, we have been presented with no meritorious basis to disturb the judge's conclusion that defendant is not obligated to provide such an accounting. Moreover, the MSA obligates defendant to satisfy any difference between the funds in the Schwab account and the funds actually needed for the son's education. Under those circumstances, we deem it unlikely that defendant would intentionally dissipate the funds in the Schwab account. We thus affirm the portion of the December 15, 2008 order that denied plaintiff's motion to compel defendant to provide an accounting of the funds withdrawn from the Schwab account.

IV.

In Point II, plaintiff argues that because her son's college expenses are paid from a joint fund comprised of marital assets, she is entitled to receive advance notice of anticipated expenditures. She maintains that section 5.2 of the MSA obligates defendant to provide her with such notice. Although the parties briefly discussed this issue during oral argument before the Family Part, the judge never made a ruling on this subject. While we recognize that the language of section 5.2 of the MSA appears to support plaintiff's contention that she is entitled to notice, we decline to exercise original jurisdiction. However, plaintiff is free to renew her application before the trial court, and the judge should squarely address that motion should plaintiff choose to refile it. We thus neither affirm nor reverse on the question of notice because there is no order before us.

V.

In Point III, plaintiff contends the trial court erred in denying her request that the parties' son be provided with a regular, weekly allowance. She maintains that the judge erred by disregarding the plain and unambiguous terms of the Memorandum of Understanding. Like the trial judge, we conclude that plaintiff has failed to satisfy her burden of establishing that the Memorandum imposes a binding obligation on defendant. The document itself is not signed. Nor has plaintiff provided a certification from her then-attorney attesting to an agreement by defendant with the terms contained in that document. The judge concluded that plaintiff's proofs on this subject were wanting, and accordingly he denied her motion to enforce the weekly allowance provision contained in the unsigned Memorandum. We perceive no error in the judge's decision, and thus affirm the denial of plaintiff's motion to compel defendant to provide the son with a weekly allowance.

VI.

In Point IV, plaintiff contends that the trial court erred in denying her request that the cat be returned to her. Plaintiff maintains that the cat belongs to her, and now that the parties' son is away at college and no longer living in the same household as the cat, the cat should be returned to her. She asserts a second reason, claiming that defendant has neglected the cat by not taking him for annual checkups with the veterinarian. She also complains that the cat has lost one pound.

After the judge rendered his order, we decided Houseman v. Dare, 405 N.J. Super. 538, 544-46 (App. Div. 2009), in which we concluded that when litigants each demand custody of the family pet, and one party asserts the existence of an oral agreement on that subject, it is appropriate to conduct a hearing to determine which party had the greater attachment. We perceive no reason to require a Houseman hearing because we are satisfied, as was the trial judge, that plaintiff relinquished her right to the cat when she gave him to defendant. While plaintiff might be entitled to relief if she demonstrates that the cat is being neglected and has suffered some harm, the showing she has made falls considerably short of so establishing. We note that plaintiff has presented nothing from the veterinarian to demonstrate that defendant has neglected the cat. The loss of one pound over the course of a one or two-year period does not strike us as harm that would warrant an order returning the cat to her. We thus perceive no need to disturb the trial judge's order on this subject, and affirm the order that denied plaintiff's motion for the return of the cat.

VII.

In Point V, plaintiff argues the trial court erred in denying her request for counsel fees. Plaintiff was not the prevailing party, and our review of the MSA satisfies us that she has ample assets from which to pay her own attorney's fees. Under those circumstances, we find no abuse of discretion in the judge's treatment of this issue.

 
Affirmed.

We have redacted the other digits of the account number to maintain the parties' privacy.

The Memorandum does not contain any signature lines above or below the notation that it had been "Drafted by Gabrielle Strich, Esq."

The point heading in her brief does not advance the same argument that is contained in the discussion section of Point II. The point heading merely reads, "The college expenses are paid from the joint account of the plaintiff and the defendant. Plaintiff has a right to obtain an accounting of the Schwab account." Thus, as written, the point heading for Point II is identical to Point I. Despite this violation of Rule 2:6-2(a)(5), we nonetheless consider plaintiff's argument that she is entitled to advance notice of any withdrawals from the account.

(continued)

(continued)

4

A-2679-08T2

January 27, 2010