NAZER ALI v. JACQUELINE H. ALI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION


SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5849-11T2




NAZER ALI,


Plaintiff-Respondent,


v.


JACQUELINE H. ALI,


Defendant-Appellant.

____________________________________

May 24, 2013


Argued April 9, 2013 Decided


Before Judges Ostrer and Mantineo.


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1368-09.


Esther M. Sieira-Alvarez argued the cause for appellant (Ms. Sieira-Alvarez, attorney; Linda E. Mallozzi, on the brief).


Gary E. Linderoth argued the cause for respondent (Kantor & Linderoth, attorneys; Mr. Linderoth, of counsel and on the brief).


PER CURIAM

In this post-matrimonial matter, defendant Jacqueline Ali, appeals from the January 20, 2012 and June 27, 2012 Family Part orders denying modification of her child support obligation and additional claims for relief.1 For the reasons that follow, we affirm in part and reverse and remand in part.

Plaintiff and defendant were married in 1991 and have two children: a son, born in 1993, and a daughter, born in 1995. In December of 2009 the pair divorced. A Property Settlement Agreement (PSA) was incorporated into the final judgment of divorce.

On November 28, 2011, plaintiff filed a motion seeking an order permitting the immediate listing and sale of the marital home. Defendant filed a cross motion seeking twenty separate claims for relief, which included a request to modify child support; a change of the parent of primary residence (PPR) designation from plaintiff to defendant; contribution by plaintiff to the health care costs for the children; and, recalculation of the parties' contribution for roof expenses based on current incomes.

For the purpose of review, we set forth those portions of the PSA that form the basis of the parties' arguments. The PSA provides the parties shall share joint legal custody of the children. "With regard to residential and physical custody, the parties . . . agree . . . that the [h]usband, Nazer Ali, shall be designated the Parent of Primary Residence." The PSA obligates defendant to pay plaintiff $800 per month in child support and further states "[t]he issue of the amount of child support due from either parent for a child who is attending a post-secondary institution, shall be evaluated and determined at that time."

The PSA requires that defendant "shall continue to maintain medical, dental and optical insurance for the . . . children so long as coverage is available through her employer [or] through any future employment." If at any time defendant is unable to provide coverage, "the parties shall split the financial responsibility for any costs incurred providing coverage for the children in proportion to their relative incomes."

With respect to the marital home, the PSA provides the parties would jointly reside in the home until 2013, when it would be listed for sale. Further, from the date of the divorce until the marital residence is sold, both parties "shall be equally responsible for all costs of ownership and maintenance . . . ." To facilitate equal payment of the costs of ownership related to the marital residence, "the [w]ife shall provide the [h]usband with the sum of $3,200 per month as her 50% share of these expenses" payable the 15th and 30th of every month "until the marital residence is sold."

On January 20, 2012, the return date for the motions, the parties agreed to list the marital home for sale.2 The court's order disposed of the parties' other claims for relief with the exception of defendant's request for recalculation of child support. The court granted, in part, defendant's motion to reconsider child support. To effectuate a review of the child support obligation, the court ordered the parties to exchange Child Support Guidelines worksheets by February 15, 2012. The court's order continued by stating "[i]f the parties cannot agree on a child support figure, they may return to [c]ourt to have the [c]ourt review the parties' contentions[.]" Thereafter, the parties exchanged worksheets but were unable to agree on a child support award. Per the court's order, defendant's attorney advised the court of this failure by letter dated May 16, 2012, and provided a copy to plaintiff's counsel. Plaintiff offered no response. On June 27, 2012, without notice to the parties or an opportunity for additional argument, the court entered an order continuing the child support award of $800 per month, until the marital home was sold. This appeal followed.

Defendant presents the following argument for our consideration:

THE TRIAL COURT BELOW committed REVERSIBLE ERRORS IN BOTH RULING UPON THE MOTIONS OF THE RESPECTIVE PARTIES AND IN DENYING THE DEFENDANT'S REQUEST FOR A RECALCULATION OF CHILD SUPPORT, GRANTED BY ORDER OF JANUARY 20, 2012, UPON DEFENDANT'S UNOPPOSED APPLICATION FOR MODIFICATION OF HER CHILD SUPPORT OBLIGATIONS AND RELATED ISSUES.

We begin with a review of basic 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). Consequently, we do not disturb the "factual findings and legal conclusions of the trial judge unless . . . 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." Id. at 412(quoting Rova Farms Resorts, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). 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).

New Jersey has a strong public policy favoring the enforcement of PSAs. Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995). These agreements are approached with the presumption that they are valid and enforceable, and they will be enforced "if they are fair and equitable." Ibid. We recognize "[t]he basic contractual nature of matrimonial agreements," and grant "particular leniency to agreements made in the domestic arena" and allow the Family Part "greater discretion when interpreting such agreements." Sachau v. Sachau, 206 N.J. 1, 5 (2011) (internal quotation marks and 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) (internal quotation marks and citations omitted).

Governed by these principles we are constrained to reverse the court's child support determination as it failed to reconsider the support award after the parties' son entered college.

The PSA specifically directed that "[t]he amount of child support due from either parents for a child who is attending post-secondary institution, shall be evaluated and determined at that time." Here, the parties' son had enrolled in college and was living at school when defendant filed her motion. The court found defendant had demonstrated this change of circumstances and, thus, urged the parties to attempt to arrive at an agreed upon support award. However, once they were unable to do so the court was required to enforce the terms of the PSA and reevaluate the child support award. The court's June 27 order that continued the award at $800 per month failed to take into account the son's enrollment in college as mandated in the PSA.

Based on the court's ruling that the award would "remain the same until the home was sold," we infer that the court did not wish to modify child support twice: once as a result of the child's attendance at college and then again, after the marital home was sold. However, the court was not free to ignore the clear terms of the PSA and thus was obligated to reconsider the award upon the child's enrollment in college, even if it meant the award would require modification again in the future.

Additionally, the court's order continuing child support at $800 per month is devoid of reasons for the ruling. We cannot determine from the record before us whether the trial court considered the proofs and found no basis for a change in the support ordered or if the court simply declined to consider the issue. R. 1:7-4(a), provides in part: "[t]he court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right." We have repeatedly stressed the importance of the trial court's responsibility to provide findings and conclusions to assure an informed appellate review. Rosenberg v. Bunce, 214 N.J. Super. 300, 303 (App. Div. 1986). Without findings relevant to the legal standards, a litigant and the reviewing court "can only speculate about the reasons" for the trial court's decision. Id. at 304. Thus, the trial court's obligation to make such findings of fact is critical to an appellate court's "meaningful review." Ronan v. Adely, 182 N.J. 103, 110-12 (2004). Given there were no findings made by the court in support of its June 27 order, we cannot meaningfully review the trial court's determination. This deficiency must be addressed by the court on remand.

We find defendant's other contentions without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm the remainder of the court's January 20, 2012 order. We add only the following comments.

Defendant argues the amount of money she was required to pay under the PSA was incorrect. She urged the court to find defendant was "getting a double dip" by her payment of both child support and contribution to the expenses of the marital home. Defendant also maintains her share of the household expenses is not the $3,200 per month she agreed to pay. Notably, defendant does not suggest she did not knowingly and voluntarily enter into the PSA, which dictates her financial obligations. Rather, she merely claims dissatisfaction with its terms. This court may not "make a better contract for either of the parties than the one which the parties themselves have created." Barr, supra, 418 N.J. Super. at 32 (internal quotation marks and citations omitted). It is only where circumstances arise making enforcement of the agreement inequitable should an exception be made to the strict enforcement of the agreement's terms. Glass v. Glass, 366 N.J. Super. 357, 379 (App. Div.), certif. denied, 180 N.J. 354 (2004). Defendant has failed to demonstrate enforcement of the agreement would be inequitable.

Accordingly, we remand the matter to the trial court for reconsideration of the child support award. All other provisions are affirmed.

Affirmed in part and reversed and remanded in part. We do not retain jurisdiction.

1 Plaintiff urges the court to find defendant's appeal untimely as she failed to file her notice of appeal within forty-five days of the January 20, 2012 order. We reject defendant's argument as the trial court did not issue a final order on the motion until its June 27, 2012 order denying modification of the child support award.

2 The parties advised this court at oral argument that the marital residence had been sold.