LESLIE A. HYMAN v. CHARLES E MARTIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5687-09T1

LESLIE A. HYMAN,

f/k/a LESLIE A. MARTIN,

Plaintiff-Respondent,

v.

CHARLES E. MARTIN,

Defendant-Appellant.

______________________________________

May 4, 2011

Argued January 26, 2011 - Decided

Before Judges Ashrafi and Nugent.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-000270-98.

Kevin C. Grubb argued the cause for appellant.

William W. Goodwin, Jr., argued the cause for respondent (Gebhardt & Kiefer, P.C., attorneys; Mr. Goodwin and Diana N. Fredericks, on the brief).

PER CURIAM

This appeal arises out of post-divorce litigation to fix child support and the parents' responsibility for college expenses. Defendant Charles Martin appeals from orders dated April 30 and June 28, 2010, requiring him to pay seventy-five percent of net college expenses and $969 per month child support for the parties' son, and $7,500 in attorney's fees to plaintiff Leslie Hyman. We affirm.

The parties were divorced in 1999. They have two children, a girl born in 1990 and a boy born in 1992. Because the children were very young at the time of the divorce, the parties did not specify at that time how they would share in the cost of their education after high school, except that custodial accounts of the children would be maintained for that purpose. In 2009, the daughter was attending community college and living with her paternal grandfather. The parents were each providing one half of her college expenses. The son was a senior in high school and applying to attend college. He lived with Hyman and her husband.

In December 2009, Hyman contacted Martin by email to discuss an arrangement to share in their son's college expenses. Martin emailed Hyman stating that he had discussed the matter with their son, and he would pay one half the college expenses after financial aid "contingent on him being in good standing w[ith] me." Hyman did not agree to that arrangement and attempted further discussions without success. She then retained counsel and filed a motion to fix the parties' responsibilities for the boy's college expenses and child support. Martin filed a pro se response to the motion.

Judge Ann Bartlett reviewed the submissions and issued a tentative decision before the return date of the motion. On that date, she heard from the parties in open court and made partial rulings on the motion. By order dated April 30, 2010, supported by written reasons as to each of its provisions, Judge Bartlett required that Martin execute a protective agreement so that financial information, including that of Hyman's husband, might be exchanged with restrictions on its use for any purpose other than the post-divorce litigation. The judge also ordered that the parties exchange current case information statements (CIS) and prepare one for their son's anticipated income and expenses while at college.

Because financial information had not been provided pending execution of the protective agreement, the judge made limited rulings on the merits of Hyman's application for college expenses and child support. She ordered that Martin contribute a fair share of the son's college expenses but did not fix the amount pending exchange of financial information. Child support was treated similarly, pending future determination of the amount either through agreement of the parties or determination by the court after exchange and submission of financial information. At oral argument on the motion, the judge encouraged the parties to discuss the matter within the parameters of her rulings and to come to agreement if they could without the need for further litigation.

The order also prohibited the parties from discussing the litigation with the then seventeen-year-old boy, other than to determine his college budget, and it required that Hyman obtain and provide bank statements for the children's custodial accounts. It denied certain other specific requests made by Martin, and it also denied without prejudice Hyman's request for reimbursement of her attorney's fees in bringing the motion. As to attorney's fees, the order stated: "The court will not award Plaintiff counsel fees without any financial documentation from the parties. However, if Plaintiff is forced to come back to the court on motion, the court will consider counsel fees for this and the follow-up motion."

In June 2010, Hyman filed a follow-up motion to fix child support and contribution for college expenses. She stated that Martin had not timely provided documents supporting his CIS and had not responded to Hyman's emails attempting to schedule a date for them to discuss the issues. Martin, again proceeding pro se, submitted written opposition, which included documents that the court eventually accepted as a cross-motion to fix child support for the parties' daughter.

The court again issued a tentative decision in writing and heard from the parties in open court on June 25, 2010. The judge patiently explained each part of her ruling and later supplemented the rulings with written reasons for each provision of an order entered on June 28, 2010. Having reviewed the financial information of the parties and their son, the judge ordered that Martin pay seventy-five percent of the net college expenses and Hyman twenty-five percent.

Defendant argues that this ruling was without consideration of all factors listed in the controlling case of Newburgh v. Arrigo, 88 N.J. 529, 545 (1982). We disagree. In the course of deciding Hyman's earlier and subsequent motions, the judge considered the relevant Newburgh factors. She expressly informed the parties at the time of the first motion that consideration of the factors that were established by the record at that time required each party to contribute to the boy's college expenses and only the specific amount had to await further development of the financial record. There was nothing improper in the court having reached conclusions in two stages rather than repeating her review of all the Newburgh factors when ruling on the subsequent motion.

Concerning child support, defendant argues that the judge erroneously failed to take into consideration Hyman's non-liquid assets and the financial contribution made to her shelter expenses by Hyman's husband. Our review of the record indicates that the court took into account detailed information establishing the boy's expenses and the parties' income and assets in the context of the factors listed in N.J.S.A. 2A:34-23a.

When, as in this case, an order for child support is not controlled by the Child Support Guidelines, see Pressler & Verniero Current N.J. Court Rules, Appendix IX-A to Rule 5:6A at 2447 (2011), the trial court has discretion to determine the amount of child support by flexibly applying the statutory factors. See Pascale v. Pascale, 140 N.J. 583, 594 (1995). "If consistent with the law, such an award 'will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice.'" Foust v. Glaser, 340 N.J. Super. 312, 315-16 (App. Div. 2001) (quoting Raynor v. Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999)).

The findings of Family Part judges are "binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id.at 413. In this case, Judge Bartlett considered the current CIS of each party and their son, as well as the supporting documents submitted. See Zazzo v. Zazzo, 245 N.J. Super. 124, 128-29 (App. Div. 1990), certif. denied, 126 N.J. 321 (1991); R. 5:5-2. She made precise findings as to the boy's anticipated college-year expenses and income and the parties' income and assets. We find no abuse of discretion in the court's reliance on the evidence that was submitted, and that evidence provided substantial support for the judge's findings and conclusions.

Defendant argues that the court erroneously failed to grant his cross-motion and to order child support for the parties' daughter. However, Judge Bartlett explained that Martin had not provided the financial information necessary to determine the daughter's income and expenses, as Hyman had for their son, and the judge denied the cross-motion without prejudice to it being re-filed with appropriate supporting evidence.

Defendant challenges the court's award of $7,500 in attorney's fees to Hyman, alleging that it was improperly intended to punish him for failing to reach agreement on the financial issues. "[T]he award of counsel fees and costs in a matrimonial action rests in the discretion of the trial court." Guglielmo v. Guglielmo, 253 N.J. Super. 531, 544-45 (App. Div. 1992); see also Gotlib v. Gotlib, 399 N.J. Super. 295, 314-15 (App. Div. 2008) (application of R. 5:3-5(c) and decision to award counsel fees rests within the court's sound discretion); Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004) (allowance for attorney's fees and costs remains discretionary).

Here, Judge Bartlett initially denied attorney's fees to Hyman at the time of the first motion, but she expressly stated she would consider awarding it for that motion as well as any renewed motion that may become necessary. At the time of the second motion, the judge made specific findings, based on email evidence and the nature of Martin's submissions to the court, that he had displayed a "stubborn unwillingness to negotiate in good faith." She concluded that Martin was unresponsive to Hyman's overtures to arrange a meeting and disregarded her requests that she negotiate directly with him instead of through her attorney so that she might not be put to the expense of paying her attorney. The only logical explanation the judge could discern in Martin's refusal to negotiate directly with Hyman was that he was "running up her attorney's fees to harass her." The judge also found that Martin had not followed "the court's prior directive with respect to the submission of pertinent financial data." These findings, together with the financial information established on the record showing Martin's ability to pay Hyman's attorney's fees, supported the court's determination that a portion of those fees for the two motions should be borne by Martin. We find no abuse of discretion in the court's ruling.

In sum, we affirm the court's decisions challenged on appeal for the reasons stated in Judge Bartlett's detailed written and oral decisions.

Affirmed.