CATHERINE BITSKO v. GREGORY BITSKO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5400-08T3

CATHERINE BITSKO,

n/k/a CATHERINE VAN

BENSCHOTEN,

Plaintiff-Respondent/

Cross-Appellant,

v.

GREGORY BITSKO,

Defendant-Appellant/

Cross-Respondent.

________________________________________________________________

December 10, 2010

 

Submitted October 26, 2010 - Decided

 

Before Judges Wefing, Baxter and Koblitz.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1758-99.

 

August J. Landi, attorney for appellant/

cross-respondent.

 

Pandolfe, Shaw & Rubino, L.L.C., attorneys for respondent/cross-appellant (Charles F. Shaw, III, on the brief).

PER CURIAM

In this post-judgment matrimonial dispute, defendant Gregory Bitsko moved to reduce his alimony obligation. His ex-wife responded by asking for increased alimony and reimbursement for payments she made for their children s medical care and daycare over the past ten years pursuant to an order requiring them to divide such costs. The trial court declined to modify alimony, but on the basis of the papers submitted, ordered defendant to reimburse plaintiff $10,488 for the children s expenses. Defendant appealed only the portion of the order requiring him to reimburse plaintiff for the children s expenses and plaintiff cross-appealed only the denial of her request for defendant to pay her counsel fees. After considering the contentions of the parties in light of our review of the facts and the law, we reverse and remand for a plenary hearing.

The parties were married in 1985 and divorced in 2000 after having three children, B.B., E.B. and M.B. The judgment of divorce (JOD) called for the parties to share legal custody of the children, with plaintiff having primary physical custody. The JOD required defendant to make weekly payments of $375 in alimony and $250 in child support. These amounts were based on plaintiff being able to earn $15,000 and defendant actually earning $85,000 annually. The JOD also called for the unreimbursed medical and health-related expenses of the children to be split evenly.

In 2005, plaintiff moved to modify child support, requesting an increase to cover daycare and summer camp for M.B. and asking that medical bills, including orthodontia, be split between the parties with plaintiff paying thirty percent and defendant seventy percent. On August 11, 2005, the trial court entered an order requiring defendant to pay for the children's daycare and medical expenses. The order reads as follows:

1. Defendant's child support obligation be and is hereby increased to $342.00 per week effective 9/1/05, which is to be payable through Probation, wage garnished, with a two week bench warrant provision.

 

1A. Upon verification that B.B. commenced residing with defendant, child support for plaintiff shall be reduced to $266 per week. In addition, the allocation of unreimbursed expenses shall readjust to 70% defendant and 30% plaintiff. This computation assumes work related child care remains at $195 per month.

 

2. Defendant is to pay sixty-five percent (65%) of any and all work related daycare expenses within 60 days of receipt of said bill.*

 

* Covers only day care costs preceding the 9/1/05 effective date of this support adjustment as the order herein includes an adjustment for work-related child care through the YMCA program. Future summer work-related child care not covered by the YMCA program shall be divided proportionately as noted herein, but a necessary prerequisite is use of the least expensive, qualified child care alternative available. Plaintiff shall provide reasonable advance notice*[*] of the alternatives available and defendant's failure to respond with a viable alternative within 14 days thereafter shall constitute an authorization for same. Contribution shall be reduced/offset by the $195 per month already included in the guidelines calculation.

 

*[*]at least 30 days.

 

 

On February 24, 2006, defendant was granted primary physical custody of B.B., triggering the seventy percent reimbursement of "expenses. M.B. stopped attending daycare in June of 2007.

On March 12, 2009, defendant filed a motion seeking to eliminate his wage garnishment for after-school care for M.B. of $195 per month because the child had not been attending since June 2007, obtain reimbursement for after-school care payments made since the child stopped attending, and decrease alimony. Plaintiff filed a cross-motion seeking an increase in alimony, reimbursement for improvements to the marital home, payment by defendant of his share of medical bills and summer child care, and counsel fees.

After hearing oral argument, on May 27, 2009, the trial court entered an order: (1) denying defendant's request for a reduction in alimony; (2) granting defendant's request for reimbursement of the $3900 garnished after M.B. stopped receiving after-school care, to be offset against other payments due plaintiff; (3) granting defendant's request to eliminate wage garnishment for after-school expenses; (4) denying defendant's request to offset the amount he owed by the expenses he incurred; (5) denying plaintiff's requests for increased alimony and reimbursement for home repairs; (6) ordering defendant to reimburse plaintiff $10,488 for medical and child-care expenses; and (7) denying plaintiff's request for counsel fees.

Defendant raises the following issues on appeal:

I. THE HODGE PODGE OF CHECKS AND OTHER INDICIA OF PAYMENTS APPENDED BY PLAINTIFF TO THE RECORD IS NON-JUSTICIABLE; & THE TRIAL COURT'S CONCLUSORY FINDINGS DO NOT MEET THE MINIMUM STANDARD OF RULE 1:7-4, AND ARE NOT REVIEWABLE ON APPEAL[.]

 

II. PLAINTIFF IS JUDICIALLY & EQUITABLY ESTOPPED FROM REACHING BACK TO EXPENSES INCURRED PRIOR TO THE COURT'S POST-JUDGMENT ORDER OF AUGUST 11, 2005. THE "LAW OF THE CASE PRECLUDES SUCH CLAIM[.]"[]

 

III. THE TRIAL DECISION ORDERS APPELLANT TO PAY EXPENSES NOT COVERED BY THE PARTIES['] JOD OR POST-JUDGMENT ORDERS WHILE DENYING SIMILAR RELIEF TO APPELLANT -- THUS DENYING APPELLANT EQUAL PROTECTION OF THE LAW.

 

 

Plaintiff raises the following issue on cross-appeal:

 

THE COURT'S FINDINGS IN DENYING PLAINTIFF'S APPLICATION FOR COUNSEL FEES WERE DEFICIENT; THE APPELLATE COURT SHOULD REMAND FOR ADDITIONAL FINDINGS.

 

Fact findings of the trial court should be deferred to if they are supported by "'adequate, substantial, credible evidence.'" Parrish v. Parrish, 412 N.J. Super. 39, 47 (App. Div. 2010) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 412. "Minimally adequate fact finding requires a discussion that demonstrates that the court has heard and addressed the relevant facts and claims under the controlling legal standards." Gordon v. Rozenwald, 380 N.J. Super. 55, 76 (App. Div. 2005). "A trial court's rulings in such matters are discretionary and not overturned unless the court abused its discretion, failed to consider controlling legal principles or made findings inconsistent with or unsupported by competent evidence." Ibid.

The family court must make specific findings of fact for deference to attach to its decision. See Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2009). In Strahan, supra, 402 N.J. Super. at 310, we remanded, after the plaintiff's motion for reconsideration was denied, because the trial court failed to make specific findings of fact to support the amount of supplemental child support awarded. We found that some of the expenses claimed by the defendant custodial parent clearly should have been deleted by the trial court, such as the children's need for landscaping or purchase of expensive gifts for their grandparents. Id. at 311. "Naked conclusions do not satisfy the purpose of R. 1:7-4. Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions." Curtis v. Finneran, 83 N.J. 563, 570 (1980).

Here, plaintiff submitted to the trial court 238 pages of bills reaching back almost ten years from the beginning of 2001. She claimed in her certification she added all the expenses and separated out those relating to home improvement.

Plaintiff in her certification laid out the amount due as follows:

The defendant simply has refused to pay me these uncovered home improvements, medical and child care bills for years. Accordingly, I have totaled them all up in Exhibit E. This covers every year from 2001 through the present. Making the home improvements separately, the total I have spent over those years is $5,150.00, which means the defendant owes me 50% of that total or $2,575.00. As to the medical and child care, the totals have to be split between the years 2001 and September 1, 2005 based on the Order of August 11, 2005. In addition, I have to pay a $250.00 deductible for each child that I had uncovered medical expenses for, and leave off those medical expenses that did not total $250.00 for each child during each respective year. Then the defendant is responsible for 50% of those prior to September 1, 2005, and 65% of those figures after September 1, 2005. When you calculate those figures and add the total that the defendant owes for the home improvements, you come out with a total of $16,963.00. This is the amount of money he owes me for unreimbursed expenses. I have supplied all of the cancelled checks and all the proofs that these were paid.

 

[Emphasis added.]

 

Rather than wade through these hundreds of documents supplied by plaintiff, the court denied the home improvement reimbursement she requested and accepted the remaining calculations, apparently without detailed scrutiny. The court deducted the disallowed home improvements and defendant s over-payment of child-care from the amount plaintiff claimed defendant owed her. A careful scrutiny of plaintiff s submissions reveals various difficulties with the reimbursement ordered by the trial court.

The parties disagree as to the correct interpretation of the 2005 order. Plaintiff claims the following expenses as child-care expenses: Little League fees, Boosters, E.B.'s eighth grade class trip, sporting goods, a band trip, soccer camp, saxophone rental and karate lessons. These are not properly considered child-care expenses as they are already included in the basic child support calculation. See Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2390 (2011). Entertainment costs including lessons or instructions, hobbies, sports and recreational equipment and miscellaneous items such as supplies for education and cash contributions are already included in the guidelines. Ibid. Thus, defendant is not obligated to pay additional sums beyond child support for these items.

Plaintiff additionally includes summer camp expenses without acknowledging that she received $195 per month in additional child support as partial payment for summer camp. Also, defendant claims he wrote a check in the amount of $650.65 directly to the camp. A hearing to review these documents in light of the orders in effect at the time is necessary, though time-consuming. Arbitration or mediation could provide a swifter, less expensive resolution to the dispute. Should the parties choose to litigate, the trial court will have to spend the time to sort out the precise amount due.

Defendant also argues persuasively that the trial court should not have awarded plaintiff reimbursements for child-care prior to the order of 2005. In 2005, plaintiff sought future payment of daycare and summer camp. She had the opportunity to seek reimbursement for past expenses at this time and did not do so. Her belated request four years later should not be granted. Although a parent may not waive child support as it belongs to the child, Gotlib v. Gotlib, 399 N.J. Super. 295, 305 (App. Div. 2008), neither may an individual litigate for future expenses, conceding that past payments are not due, and then take a contradictory position years later. Plaintiff was not employed outside the home until June 6, 2005, thus defendant would not ordinarily be required to pay any child-care expenses prior to that date. See Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2436 (2011). The JOD did not call for child-care payments by defendant as plaintiff was not working at the time of the divorce, although $15,000 in income was imputed to her for the purpose of calculating child support. Plaintiff's request for reimbursement for child-care prior to her employment should be denied.

Plaintiff cross-appeals the court s denial of counsel fees. The court may award fees to any successful party in an action on a claim for support. R. 5:3-5(c). An award of fees is at the trial court's discretion, and the decision is reviewable under the abuse of discretion standard. Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004). The appellate court should only overturn the trial court's determination on fees "on the rarest occasion," and only for a clear abuse of discretion. Strahan, supra, 402 N.J. Super. at 317 (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). The court should consider the following factors:

(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.

 

[R. 5:3-5(c).]

 

Even though the decision on fees is discretionary, the court must consider the above factors in making its determination. Pressler & Verniero, Current N.J. Court Rules, comment 4.1 on R. 5:3-5 (2011). If deemed just, an award may be made in favor of either party, whether or not they prevailed. See Kingsdorf v. Kingsdorf, 351 N.J. Super. 144, 158 (App. Div. 2002).

The trial court here determined,

[s]ince Plaintiff relies on alimony from Defendant, a presumption may be made that she is in financial need. Though Defendant's income is higher than Plaintiff's, he does not have financial ability to pay for Plaintiff's counsel fees, based on his monthly expenses. Defendant is also the sole provider for his household.

 

Defendant represented himself before the trial court. He has re-married and supports a new family. Both parties prevailed on some issues before the trial court. The court did not find that either party litigated in bad faith. The court found that neither party had the excess funds to pay lawyers. Plaintiff s counsel sought a modest fee of $1,856 (6.75 hours at $275 per hour) for his services before the trial court. We do not find an abuse of discretion in the trial court's denying counsel fees. When this matter is tried on remand, the court should consider any further counsel fee applications for that litigation.

R

eversed and remanded for a plenary hearing consistent with this opinion.