EILEEN ANN WHALEN v. WILLIAM J. CONNOLLY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2278-11T3

EILEEN ANN WHALEN,

Plaintiff-Appellant,

v.

WILLIAM J. CONNOLLY,

Defendant-Respondent.

_________________________________________________

April 19, 2013

Submitted April 9, 2013 Decided

Before Judges Hayden and Hoffman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-433-06.

Felsenfeld and Clopton, P.C., attorneys for appellant (Howard L. Felsenfeld, on the brief).

Ulrichsen Rosen & Freed, L.L.C., attorneys for respondent (Derek M. Freed, of counsel;

Mr. Freed and Michael A. Conte, on the brief).

PER CURIAM

In this post-judgment matrimonial matter, plaintiff Eileen Ann Whalen appeals from the November 18, 2011 Family Part order denying her requests for increased child support, credit for reducing the mortgage principal, and reimbursement for child care and tutoring expenses. She also appeals from the judge's grant of attorney's fees to defendant William J. Connolly. For the reasons that follow, we affirm.

The parties were married on October 12, 1991 and had two children. A final judgment of divorce was entered on December 18, 2006, incorporating a property settlement agreement ("PSA").

Pursuant to the PSA, the parties marital home, which had been listed for sale during the divorce proceeding, continued to be listed with a mutually selected realtor for an agreed listing price. The PSA further provided:

Upon the sale of the marital residence, the parties agree to pay any real estate commissions, taxes, mortgages, other closing expenses, and joint credit card debt listed in Section D herein (the parties represent that no credit card debt was incurred after July 13, 2006) from the proceeds of the sale. Thereafter, the Wife shall receive the sum of $35,000, in conformity with the parties' Ante-Nuptial Agreement dated July 1, 1991, and then the parties shall equally divide the remainder.

The Wife shall henceforth have exclusive possession of the residence until such time that it is sold.

Regarding child support, the PSA specified that the New Jersey Child Support Guidelines were used to calculate support and that defendant was to pay $250 per week in child support. The parties agreed to exchange financial information each year and, if appropriate, re-calculate the child support to account for changes in income. Further, covered child care expenses, including summer camp, day care, and before and after school care, were to be paid by both parties according to their respective incomes. Additionally, defendant agreed to pay plaintiff alimony of $255 per week for an eight-year term.

The marital home remained unsold. On June 23, 2009, Judge Mary C. Jacobson, granting a motion by defendant, ordered plaintiff to comply with the PSA provision regarding the marketing and sale of the marital home. On August 17, 2009, Judge Jacobson entered another order lowering the listing price and, if the property was not sold by October 1, 2009, decreasing the price again.

In 2010, plaintiff moved for a retroactive increase in child support based upon defendant's failure "to utilize overnights" and a credit against the marital residence's sale proceeds for the principal reduction due to mortgage payments she made since January 1, 2007. Defendant filed a cross-motion which opposed these requests, and sought a further reduction in the listing price of the property. Judge Lawrence P. DeBello, in a March 12, 2010 order, denied plaintiff's request for retroactive child support adjustment, finding no "willful failure to comply with a parenting time provision . . . ." The judge also denied her request for credit for mortgage principal reduction, determining that, while mortgage payments were not expressly addressed in the PSA, the parties' three year course of conduct demonstrated her obligation to pay during her exclusive use of the premises. He likewise found significant that defendant's child and spousal support payments encompassed housing expenses. The judge also granted defendant's cross-motion to reduce the list price of the property. Plaintiff moved for reconsideration of the March 12, 2010 order, which Judge DeBello denied. On August 31, 2010, the judge granted defendant's motion to again reduce the list price of the property.

On October 14, 2011, plaintiff filed another motion, requesting, in part, an increase in child support for 2010 and 2011 due to the children s refusal to visit with defendant, credit for a $48,330 reduction in the mortgage principal due to her three years of mortgage payments, and $4069 in reimbursement for after school and summer care for both children and summer tutoring for their son. Plaintiff listed the purported expenses for child care and summer tutoring, which included $2,653 for February-June 2011, $3,805 for June-August 2011, $532 for September 2011, and $408 for summer tutoring. No supporting documentation was offered to explain or corroborate these costs. Defendant opposed the motion in its entirety.

On November 18, 2011, Judge DeBello issued a lengthy order, which included a statement of reasons, on the parties' motions. The judge denied plaintiff's motion to increase child support for 2010 and 2011, noting that he previously denied her motion for similar relief in his March 12, 2010 order. The judge agreed with plaintiff that willful non-compliance with parenting time over an extended time period may support a child support adjustment. However, the judge found that plaintiff s motion did not include a case information statement (CIS) with supporting documentation as required by Rule 5:5-4. Consequently, the judge denied her request for prospective modification of child support. The judge also rejected plaintiff's claim for a past child support increase because N.J.S.A. 2A:34-23 prohibits retroactive modification of child support.

Further, Judge DeBello denied plaintiff's motion for credit for mortgage principal reduction. He noted that the PSA specified that the proceeds of the home sale must be divided equally between the parties but did not address "the length of time it would take to sell the marital property or who would pay the mortgage." The judge, observing that he denied this same claim in his March 12, 2010 order, reiterated that "the parties' course of conduct since execution of the [PSA] demonstrated that plaintiff took on the obligation to pay the mortgage during her exclusive use of the premises. Furthermore, defendant's payments of child and spousal support included contributions towards housing expenses." In addition, the judge denied without prejudice plaintiff's motion for reimbursement of the children's after school and summer care. The judge reasoned that a mere listing of the purported expenses, without more, does not offer an opportunity for defendant and the court to assess if the expenses are legitimate and reasonable.

The judge also awarded defendant $1500 in counsel fees and $356 in court costs, because plaintiff raised claims that were already adjudicated and since defendant's cross-motion was required, in large part, to object to these claims. This appeal followed.

On appeal, plaintiff raises the following contentions for our consideration:

POINT I: THE COURT ERRED AS A MATTER OF LAW IN DENYING THE PLAINTIFF'S APPLICATION FOR A CREDIT IN THE PRINCIPAL REDUCTION OF THE MORTGAGE FOR THE FORMER MARITAL HOME.

POINT II: THE COURT ERRED IN NOT ADJUSTING THE CHILD SUPPORT EVEN IF IT WERE IN FUTURO TO PROVIDE FOR THE ACTUAL NUMBER OF OVERNIGHTS WHICH THE DEFENDANT SHOULD RECEIVE CREDIT BY WAY OF THE CHILD SUPPORT GUIDELINES.

POINT III: THE COURT ERRED IN NOT ALLOWING THE CHILD CARE AND DAY CARE AND SUMMER CAMP EXPENSES TO BE PAID BY THE DEFENDANT TO THE PLAINTIFF IN ACCORDANCE WITH THE PARTIES' AGREEMENT WHICH WAS CONSISTENT WITH THE CHILD SUPPORT GUIDELINES.

POINT IV: THE TRIAL COURT ERRED IN AWARDING COUNSEL FEES INASMUCH AS IT FAILED TO SET FORTH ANY CRITERIA FOR THE AWARD UNDER WILLIAMS V. WILLIAMS.

We begin by reviewing a few basic legal principles. In general, since the Family Part has special expertise in family matters and has the opportunity to see and hear the witnesses first hand, its fact-finding should be accorded particular deference on appeal. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). However, we review the Family Part s interpretation of the law de novo without any special deference. Manalapan Realty, L.P v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Further, in construing and enforcing a PSA, the judge must consider the parties intent, as well as common sense and equity. Sachau v. Sachau, 206 N.J. 1, 5-6 (2011).

After considering plaintiff s arguments in light of the applicable legal principles, we find them without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially on the basis of Judge DeBello s November 18, 2011 order. We add only the following comments.

Plaintiff made regular mortgage payments for three years, from January 1, 2007 to the filing of her motion in 2010, without objection. Plaintiff argues that because the PSA did not address who would make mortgage payments it was ambiguous on this issue. Thus, she contends the trial court erred in making a factual determination on an ambiguous clause without a fact-finding hearing. We do not agree.

While we recognize "[t]he basic contractual nature of matrimonial agreements," we grant "particular leniency to agreements made in the domestic arena" and give the Family Part "greater discretion when interpreting such agreements." Sachau, supra, 206 N.J. at 5 (citations omitted). In interpreting a PSA, we look to "the language used, the situation of the parties, the attendant circumstances, and the objects the parties were striving to attain." Barr v. Barr, 418 N.J. Super. 18, 32 (App. Div. 2011) (quoting Celanese Ltd. v. Essex Cnty. Imp. Auth., 404 N.J. Super. 514, 528 (App. Div. 2009)). We may not supply terms to contracts that are plain and unambiguous or make a better contract for either of the parties than the one which the parties themselves have created. Id. at 31-32.

We concur with Judge DeBello that the PSA clearly and unambiguously specified that the parties equally divide the proceeds from the sale of the marital residence after the enumerated deductions and credits were taken. Moreover, the judge reasonably determined that the PSA provision giving plaintiff sole possession of the residence and her payment of the mortgage for three years without reservation both demonstrated that the parties intent was that she would be responsible for the payments. Plaintiff has not established a basis for a plenary hearing as the PSA is not ambiguous, and plaintiff s payment of the mortgage for three years is not disputed. See Rolnik v. Rolnik, 262 N.J. Super. 343, 364 (App. Div. 1993) (plenary hearing needed only if material factual dispute exists). We also note that the house remained unsold for many years due to the refusal of plaintiff to work with the realtors to set a realistic listing price. We are satisfied that the judge correctly determined that nothing in the PSA or in the parties' actions since the divorce established that they intended plaintiff to receive credit for any principal reduction due to her mortgage payments.

Plaintiff does not contest on appeal the judge s ruling that past child support cannot be modified retroactively under N.J.S.A. 2A:34-23. However, she claims that the trial judge erred by not recalculating future child support with the number of days credited to parenting time adjusted to reflect defendant s failure to have the overnight visitation used in the prior support calculation. Again, we disagree. Plaintiff s argument misperceives the judge s ruling. The judge acknowledged that the Child Support Guidelines allow prospective modification for willful non-compliance with parenting time, and that plaintiff raised relevant information that may be probative on this matter. However, because she had failed to provide a CIS, which is required pursuant to Rule 5:5-4, the judge refused to consider her application.

The CIS is "a way for the trial judge to get a complete picture of the finances of the movants in a modification case." Gulya v. Gulya, 251 N.J. Super. 250, 253 (App. Div. 1991). They are necessary to offer "an adequate factual basis for the court to assess essential facts necessary to a determination of the issues presented." Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010). As such, the failure to include a case information statement renders a modification motion incomplete. Ibid. Because plaintiff failed to provide proper documentation pursuant to Rule 5:5-4, we discern no abuse of discretion in the judge's decision to deny plaintiff relief.

Similarly, Judge DeBello denied plaintiff s claim for child care expenses and tutoring, not on the merits, but because she did not provide any support or details concerning her claims. The moving party has the burden of showing that her expenses are legitimate and reasonable. Accardi v. Accardi, 369 N.J. Super. 75, 87 (App. Div. 2004). Moreover, "[a] mere listing of the purported expenses, without more, is insufficient." Ibid. To warrant a plenary hearing generally a moving party must make a prima facie showing entitlement to relief and contested issues of fact, which plaintiff has not demonstrated here. Jacoby v. Jacoby, 427 N.J. Super. 109, 123 (App. Div. 2012). Accordingly, we find that the judge's decision both to deny relief and to not hold further fact finding on the expenses was reasonable in light of the paucity of evidence plaintiff presented.

Finally, plaintiff argues that there was an inadequate factual basis for the judge's award of counsel fees to defendant. We disagree.

"An allowance for counsel fees is permitted to any party . . . in a divorce action, R. 5:3-5(c), subject to the provisions of Rule 4:42-9." Barr, supra, 418 N.J. Super. at 46. The decision to award counsel fees to the prevailing party is left to the court's sound discretion. Yueh v. Yueh, 329 N.J. Super. 447, 460 (App. Div. 2000). A trial court's determination on counsel fees will only be disturbed "on the 'rarest occasion,' and then only because of clear abuse of discretion." Barr, supra, 418 N.J. Super. at 46 (quoting Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008)).

We find that Judge DeBello clearly did not abuse his discretion in ordering plaintiff to pay attorney s fees and costs incurred by defendant in opposing her motion. Ibid. The judge explicitly found that defendant s cross-motion was necessitated primarily to address claims for relief already adjudicated and that defendant had prevailed substantially in objecting to her requested relief. In addition, he only awarded a portion of defendant s counsel s total fees since defendant did not prevail on his claims. As these findings are supported by the record, we do not perceive the award of counsel fees to defendant to be a clear abuse of discretion.