MARIA S. HILTNER v. THOMAS D. HILTNER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5740-08T15740-08T1

MARIA S. HILTNER,

Plaintiff-Respondent,

V.

THOMAS D. HILTNER,

Defendant-Appellant.

_____________________________________________

 

Submitted June 23, 2010 - Decided

Before Judges Chambers and Kestin.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FM-01-933-03B.

Goldenberg, Mackler, Sayegh, Mintz, Pfeffer, Bonchi & Gill, attorneys for appellant (Michael A. Gill, on the brief).

Maria S. Hiltner, respondent pro se.

PER CURIAM

In this post-judgment matrimonial matter, defendant, Thomas Hiltner, appeals from the trial court's denial, following a plenary hearing, of his motion for contribution by plaintiff to the college costs incurred by the parties' son. The scope of the appeal includes a challenge to a provision of the interlocutory order that set up the plenary hearing, which also denied termination, modification or suspension of alimony for lack of changed circumstances.

The parties were married on July 1, 1989. Their son was born of the marriage on March 26, 1990. A judgment of limited divorce was entered on March 19, 2004. Among its other clauses, the judgment provided for defendant to pay plaintiff alimony of $450 per week until March 12, 2007, and $425 per week thereafter. An "order supplementing judgment of limited divorce" was entered on April 7, 2004, memorializing "[t]he parties['] agree[ment] that they each have a responsibility to contribute towards the minor child's education as their means and ability allow at the time of the event."

According to its terms, the divorce took the form of a limited judgment "for the purposes of allowing plaintiff . . . to remain on defendant['s] . . . health insurance policy for a period of one (1) year." The form of judgment allowed for defendant to "finalize the divorce" via a motion after March 4, 2005; however, the record before us reveals no such development. The judgment went on to provide: "It is expected that during the [one-]year period [plaintiff] is going to make diligent efforts to obtain full-time employment and obtain health insurance through her employment."

Under the terms of the judgment, the parties shared joint legal custody of the child, with defendant as the primary residential parent. The text of the judgment continued: "[Defendant] is not seeking child support at this time. [Defendant] has stipulated that his intentions are that he will not seek child support unless [plaintiff] seeks modification of alimony."

College studies for the son commenced in August 2008, with defendant paying the full costs thereof. According to his uncontroverted testimony at the plenary hearing, those expenses exceeded $50,000 per year.

Defendant also testified that he worked sixty to seventy hours per week in four positions: City Clerk and Tax Collector for the City of Margate, part-time Tax Collector for the Borough of Longport, Deputy Clerk for the Borough of Longport, and Treasurer of school funds for the Margate City Board of Education. In 2008, he earned $147,000 to $148,000 from the four sources.

Plaintiff was unemployed. She testified that she was unable to work as a manicurist, her former occupation, because she suffered from carpal tunnel syndrome. During the marriage, she had become addicted to prescription pain medication and was still using drugs at the time of the divorce. She had since successfully completed drug rehabilitation treatment at a facility in Florida, where she also worked for a time as a "mental health tech." She returned to New Jersey in August 2007, and was living in an apartment she rented from her father for $650 per month, plus utilities.

She testified to extensive health problems and several hospitalizations. For a short time, she qualified for and received temporary disability benefits. On cross-examination, the following colloquy occurred:

[Counsel for defendant]: "So you will acknowledge you're not totally disabled. There are certain things you can do.

[Plaintiff]: No, I don't think I'm totally disabled. I think that right now I'm disabled to the extent that I can't go back and do what I used to do. That's out of the question. Am I permanently disabled? I don't know. I mean I'm still going to physicians to figure that out. It's not really my call. I don't really know my limits since I had a stroke. It sort of goes daily.

In her letter memorandum of decision, Judge Wild recounted the background of the matter and the undisputed facts. Under the heading "Findings of Fact on Disputed Issues," the judge referred to plaintiff's contention "that she is unable to contribute to [her son's] college expenses as her only source of income is the alimony paid to her by defendant." The judge quoted the stipulation in the judgment of limited divorce stating the "expect[ation] that during the [one-]year period . . . [plaintiff] is going to make diligent efforts to obtain full-time employment and obtain health insurance through her employment." The judge found: "Thus, although he agreed to pay permanent alimony, defendant had the reasonable expectation that alimony he was paying was not going to be plaintiff's sole source of income."

The findings continued with a reference to plaintiff's testimony

regarding her drug addiction, her continuing steps to maintain her recovery from the addiction and regarding other physical ailments that have befallen her. Plaintiff maintains her NJ license as a cosmetologist and stated that for a period she has worked as a shampoo person in the salon owned and operated by her father. She testified that she could not return to her prior work as a manicurist due to carp[a]l tunnel syndrome. The court need not engage in an analysis of the medical history presented, as plaintiff admitted on cross-examination that she is not totally disabled, but that she (because of her physical limitations) cannot go back to working as a manicurist. Based on this admission, the court finds that plaintiff has an ability to work and is capable of obtaining employment at least at the level of the minimum wage rate.

The decision continued with a reference to Newburgh v. Arrigo, 88 N.J. 529 (1982), and its "twelve . . . determinative factors which a court must consider in deciding whether a parent is to be required to make contributions to the college expenses of a child." Judge Wild found

that the evidence given by both parties . . . supports a conclusion that both parties should be required to contribute to the college expenses [of] their son, BUT FOR two very important factors:

4.The ability of the parent to pay the cost;

6.The financial resources of both parties[.]

These two factors are fundamentally the most practical factors in the consideration of the college costs contribution issue. It makes no sense for a court to order college contributions where a party cannot afford to meet the expenses.

At the time of the plenary hearing, plaintiff's income was $22,100 per year. The court finds that plaintiff has minimally enough income to support herself. And the court must be mindful of the specific language of the Supplemental Order: "The parties agree that they each have a responsibility to contribute towards the minor child's education as their means allow at the time of the event . . . ." Plaintiff does not at this time have the means and ability to contribute to the college expenses of the parties' son. Although defendant alleged that plaintiff is living a lifestyle beyond her income, he failed to prove that lifestyle and failed to prove that plaintiff has any continuing source of income beyond the alimony which he pays to her.

Therefore, the court will not order plaintiff to contribute at this time to the college expenses of [the parties' son].

On the basis of its finding "that plaintiff is not disabled and that she is capable of finding employment at least at the minimum wage rate," the court granted defendant the opportunity "to monitor any change in plaintiff's income which may give rise to a basis for a future application for college costs contribution," by providing for annual disclosure of plaintiff's tax returns until the child's graduation from college or emancipation.

In reviewing a judgment or order, appellate courts are required to defer to a trial court's findings and the conclusions flowing from those findings that are supported by substantial evidence. See Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974).

[O]ur appellate function is a limited one: we do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.

[Fagliarone v. Township of North Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963).]

Particular deference is to be accorded to family court fact-finding and the discretionary determinations of those tribunals "[b]ecause of the family courts' special jurisdiction and expertise in family matters[.]" Cesare v. Cesare, 154 N.J. 394, 413 (1998).

By reason of her finding "that plaintiff has an ability to work and is capable of obtaining employment at least at the level of the minimum wage rate[,]" Judge Wild could have imputed an income to plaintiff, and surcharged her to that extent. See Caplan v. Caplan, 182 N.J. 250, 267-72 (2005) (where parent is voluntarily unemployed without just cause, income may be imputed to that parent). We respect the judge's discretionary choice not to do so in the light of her finding that plaintiff could not afford an assessment at the time, along with the decision, instead, to mandate a mechanism for monitoring any earnings plaintiff might come to have so that appropriate action could be taken in the future.

From a review of the record, it is clear that the trial court was also correct in denying defendant's change-of-circumstances motion regarding alimony. Although the high cost of his son's college education surely qualified as a change in defendant's circumstances -- not entirely unanticipated -- no showing had been made, as the trial court's findings make clear, regarding a change in plaintiff's circumstances. She had been earning no income at the time of the judgment and was earning no income at the time of the plenary hearing. See Lepis v. Lepis, 83 N.J. 139, 157-58 (1980)(the financial status of both parties is required in order for a court to be able "to make an informed determination as to 'what, in light of all the [circumstances] is equitable and fair'")(alteration in original).

Neither we nor the trial court can minimize the burdens a parent, such as defendant, experiences with the choice to support a high-cost college education for his child. Admiration for such an election, and its sometimes excruciating consequences, cannot be used as a surrogate for the plain and necessary standard applied by the trial court in this case, that, in order for the other parent to be charged, that other parent must be able, as a matter of practical evaluation, to be able to afford the levy. The trial court's findings and conclusions herein are supported by substantial evidence in the record, and the result that eventuated was well within the trial court's discretion in the circumstances.

 
Accordingly, we affirm.

(continued)

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A-5740-08T1

August 3, 2010