TRACEY A. DUNN v. ANTHONY J. RUGGIERO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5883-11T1

TRACEY A. DUNN,

Plaintiff-Appellant/

Cross-Respondent,

v.

ANTHONY J. RUGGIERO,

Defendant-Respondent/

Cross-Appellant.

____________________________________

October 28, 2013

 

Argued September 23, 2013 Decided

 

Before Judges Yannotti and Ashrafi.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FD-14-453-95.

 

Joseph J. Fritzen argued the cause for appellant/cross-respondent.

 

Peter G. Bracuti argued the cause for respondent/cross-appellant (Walder, Hayden & Brogan, P.A., attorneys; Mr. Bracuti, of counsel and on the brief).

PER CURIAM

Plaintiff Tracey A. Dunn appeals from an order entered by the Family Part on June 21, 2012, which granted in part, and denied in part, plaintiff's motion for reconsideration of an order entered by the court on December 2, 2011. Defendant Anthony Ruggiero cross-appeals from the June 21, 2012 order. For the reasons that follow, we affirm on the appeal, reverse on the cross-appeal, and remand the matter to the trial court for recalculation of defendant's child support obligation.

I.

We briefly summarize the relevant facts. The parties were never married; however, the parties had a daughter who was born in 1993. Thereafter, the trial court entered an order dated February 23, 1996, which required defendant to pay $165 per week in child support. In May 2006, plaintiff filed a motion seeking an increase in child support, and the court filed a consent order dated July 20, 2006, which increased defendant's child support obligation to $201 per week. In May 2010, defendant's child support obligation was increased by a cost-of-living adjustment to $219 per week.

On August 12, 2011, plaintiff filed a motion in the trial court seeking, among other relief, an order modifying defendant's child support obligation and requiring defendant to pay a proportionate share of the daughter's college expenses. In a certification submitted in support of her motion, plaintiff stated that the daughter would be attending a county college beginning in fall 2011. Plaintiff said that she had already paid tuition in the amount of $1744.40, and would be incurring additional expenses to purchase books and other college-related items. In addition, plaintiff asserted that an increase of defendant's child support obligation was warranted because defendant had received "a significant inheritance" upon the death of his mother, Dolores Moles, in June 2009.

Defendant opposed plaintiff's motion regarding the college expenses. In his supporting certification, defendant stated that it was his understanding that his daughter had been awarded $5500 in financial aid, and he asked the court to require plaintiff to explain what she had done with that money. Defendant noted that he was already paying some of the daughter's expenses through child support.

Defendant also opposed plaintiff's application for an increase in child support and filed a cross-motion seeking a reduction in his support obligation. Defendant disputed plaintiff's assertions regarding his inheritance from his mother's estate. Defendant said he had only received a one-time payment when he redeemed his mother's individual retirement account (IRA), of which he was the beneficiary.

The court referred the parties for a conference with the court's staff. At the conclusion of the conference, the parties consented to the form of order entered by the court on September 22, 2011. Among other things, the order required the parties to disclose their complete financial records to the court. The order stated that the court would determine the amount of support and college expenses to be paid by each party based on those submissions.

Thereafter, the parties submitted their financial records and the court entered an order dated December 2, 2011, which required defendant to pay fifty-seven percent of the daughter's college expenses, after application of any financial aid received. The order required plaintiff to present defendant with the bills for the expenses within fourteen days after she received them. Defendant was ordered to pay those bills within fourteen days after he was provided with them.

Defendant also was ordered to pay fifty-seven percent of the costs plaintiff had already incurred for the fall 2011 semester, after application of any financial aid award. Plaintiff was required to provide defendant with copies of the receipts for the tuition payments and books within seven days of the date of the order. Defendant was required to reimburse plaintiff within thirty days thereafter.

In the December 2, 2011 order, the court also granted defendant's motion for a downward modification of his child support obligation, which the court determined to be $164 per week. In calculating that obligation, the court included the $5547 that defendant received for the redemption of his mother's IRA.

In the statement of reasons appended to the order, the court rejected plaintiff's claim that defendant had received a substantial inheritance from his mother's estate. The court stated that it had not been "swayed" by plaintiff's claim that defendant had "unfettered control over other funds" in his mother's estate.

On December 27, 2011, plaintiff filed a motion for reconsideration of the December 2, 2011 order. Plaintiff asked the court to correct an error in the child support calculation. Plaintiff also requested that the court require defendant to fully disclose all of his 2009 and 2010 income, as well as "all details" of the monies he had inherited from his mother.

Plaintiff additionally asked the court to recalculate the parties' respective obligations for their daughter's college costs, to compel defendant to reimburse plaintiff for his share of the college costs previously paid, and to award her counsel fees and costs for her motion. Defendant opposed plaintiff's motion and filed a cross-motion seeking an award of counsel fees incurred to oppose the motion.

The court heard argument on the motions on February 23, 2012. At that proceeding, defendant was sworn and then questioned regarding the monies he received from his mother's estate. He said he had only received $5547 when he redeemed his mother's IRA. Plaintiff's counsel noted that the estate plan was "complicated" and pointed out that defendant had never provided his tax return for 2009, which is the year his mother died. The court ordered defendant to submit his tax returns for 2009 and 2011, along with an updated Case Information Statement.

On June 21, 2012, the court entered an order granting in part and denying in part plaintiff's motion for reconsideration. The court recalculated defendant's child support obligation and stated that it should be $168 per week, effective August 15, 2011.

The court directed plaintiff to present proof of the college expenses she had incurred within twenty days, and ordered defendant to reimburse plaintiff for his share of those expenses within thirty days thereafter. The court also ordered the parties to cooperate with their daughter in seeking financial aid and denied the other relief requested by the parties.

Plaintiff's appeal and defendant's cross-appeal followed.

II.

Plaintiff contends that the trial court erred in its allocation of responsibility for the daughter's college expenses. Plaintiff contends that the court failed to consider all of the factors in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982), and erroneously passed the burden of the college costs to the parties' daughter by requiring her to seek financial aid in the form of loans. Plaintiff says the daughter should not have been compelled to take on such debt. We disagree.

The Newburgh Court stated that all relevant factors should be considered when evaluating a claim for contribution by a parent for the cost of a child's higher education, including

(1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; (2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education; (3) the amount of the contribution sought by the child for the cost of higher education; (4) the ability of the parent to pay that cost; (5) the relationship of the requested contribution to the kind of school or course of study sought by the child; (6) the financial resources of both parents; (7) the commitment to and aptitude of the child for the requested education; (8) the financial resources of the child, including assets owned individually or held in custodianship or trust; (9) the ability of the child to earn income during the school year or on vacation; (10) the availability of financial aid in the form of college grants or loans; (11) the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and (12) the relationship of the education requested to any prior training and to the overall long-range goals of the child.

 

[Ibid.]

In the statement of reasons that accompanied the December 2, 2011 order, the court noted that, based on the parties' 2010 tax returns, plaintiff's income was $42,000 per year, while defendant's income was $66,519. The court pointed out that the daughter's college expenses were expected to be $4400 per year. The court noted that, while this amount was "sizeable," it was a cost the parties were capable of bearing. The court pointed out that this expense would be "lessened" by the daughter's receipt of financial assistance.

The court's determination is entirely consistent with Newburgh, which expressly permits the court to consider, among other things, the ability of the parents to bear the college costs, the parents' financial resources, and the availability of financial aid in the form of grants or loans. Ibid. We are convinced that, given the annual incomes reported by the parties and the amount of the college costs involved, the trial court did not err by requiring the parties to pay their respective shares of those costs, after application of any financial aid received. Newburgh recognizes that a child might be required to bear some of the expense of attending college with loans. Thus, the court did not err by requiring the daughter to seek such financial aid.

III.

Plaintiff additionally argues that the trial court erred by refusing to allow discovery with respect to defendant's inheritance from his mother's estate. Again, we disagree.

In the statement of reasons appended to the June 21, 2012 order, the trial court stated:

Plaintiff appears dissatisfied with the Court's earlier decision as she claims Defendant received a substantial inheritance from his mother's estate. However, there is no proof of a substantial inheritance. In fact, Defendant's submission of an updated Case Information Statement, tax returns from 2009, 2010, and 2011, and proof of his current income confirmed the Court's view of Defendant's finances. Defendant's disclosure of such information also renders Plaintiff's request for more detailed financial information from Defendant moot. Plaintiff's filings attempt to re-litigate issues the Court has already addressed.

 

The record supports the court's finding that there was no evidence showing that defendant had received "a substantial inheritance" from his mother's estate. To the contrary, all of the evidence before the court indicated that defendant had not received a substantial amount of money from the estate.

In her will, Moles provided that, in the event her husband survived her, $675,000 or the "aggregate federal estate tax exemption" would be given to her descendants, whichever was less. The term "aggregate federal estate tax exemption" was defined in the will to be the amount that could be transferred at death without incurring any federal estate tax.

In addition, Moles left the residue of her estate to her husband in trust should he survive her, with the net income to be paid to her husband during his lifetime. Moles authorized the trustees to distribute some, all or none of the principal of the trust to her husband for the maintenance of his health and other living expenses.

In her will, Moles additionally directed that, upon the death of her husband, the trustees are to distribute the balance of the trust fund in equal parts to her two sons, if living at the time and, if they are not living, to their then-living descendants. Moles appointed her husband executor of the estate.

The refunding bonds and releases filed with the Middlesex County Surrogate indicate that the executor of the estate distributed $831,200 to Daniel J. Moles and Jason Ruggiero as trustees of the trust created under the will. The bonds and releases also indicate that $110,562 was disbursed to Jason and $5538 was disbursed to defendant.

At the February 23, 2012 motion hearing, defendant testified that his mother died in 2009. He stated that on his 2010 tax return, he reported $5547, which was the amount he received from his mother's IRA. He said he received no income from the estate in 2011. He noted that he might receive "some funds" when his stepfather died, but his stepfather was "still alive" at the time.

As the court pointed out in the statement of reasons appended to the June 21, 2012 order, defendant's tax returns for 2009, 2010 and 2011 and his proof of current income established that he had not received any monies from his mother's estate in those years, except for the $5547 reported on the 2010 tax return. Since Moles' husband survived her death, the trust created with the residue of the estate was for his benefit during his lifetime. The refunding bonds and releases also indicate that defendant only received $5538 from the estate. We assume that the $5538 represented the monies defendant received for the IRA, despite the small difference in amounts.

Plaintiff contends that the court erred by refusing to permit her to conduct discovery so she could ascertain whether defendant inherited other monies from his mother's estate. We do not agree. In our view, the court properly relied upon the will, the refunding bonds and releases, defendant's testimony, along with defendant's tax returns and his updated financial information, as support for its finding that defendant did not receive any distribution from his mother's estate in the period from 2009-2011 other than the income that defendant reported on his 2010 return.

IV.

Plaintiff additionally argues that the trial court erred by failing to address her motion to compel defendant to pay his share of the unreimbursed medical expenses she had incurred for the parties' daughter. We disagree.

We note that in her August 12, 2011 motion, plaintiff sought to modify the percentages the parties were to pay for the unreimbursed medical expenses for their daughter. The July 20, 2006 consent order stated that the parties would share these expenses equally. In opposing plaintiff's motion, defendant asserted that the equal sharing of these costs had "worked fine" and plaintiff had not established any material change in circumstances that would warrant a modification of the parties' respective obligations for these costs.

The court's December 2, 2011 order denied plaintiff's application to modify the percentages the parties agreed to pay for these expenses. In her reconsideration motion, plaintiff asked the court to compel defendant to pay the expenses "proportionate to his actual income." The court's order of June 21, 2012 denied this application.

Thus, the record indicates that plaintiff was seeking an increase in the percentage defendant was required to pay for the daughter's unreimbursed medical expenses. Plaintiff was not seeking an order compelling defendant to pay any particular expense. As we have explained, the court did, in fact, address plaintiff's application in its December 2, 2011 and June 21, 2012 orders. Furthermore, the record supports the court's determination that the change sought by plaintiff was not warranted.

Plaintiff also argues that the court erred by refusing to award her attorney's fees for her motion to reconsider the December 2, 2011 order. She contends that her motion was proper, and defendant's opposition inappropriate and unreasonable. However, plaintiff's motion for reconsideration was granted in part and denied in part. The court made a minor change in the calculation of defendant's child support, directed defendant to pay his share of the previously-incurred college expenses, but denied all of the other relief that plaintiff sought.

In its statement of reasons, the court wrote that, upon consideration of the factors in Rule 5:3-5, an award of counsel fees was not appropriate. The court pointed out that, while some facets of its prior order required clarification and adjustment, plaintiff was merely seeking to re-litigate issues that had been addressed. The court also stated that both parties had advanced "good faith positions in some aspects."

As plaintiff recognizes, the award of counsel fees is committed to the sound discretion of the trial court. Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004). We are convinced that the court did not abuse its discretion by denying plaintiff's application for attorney's fees for a motion on which plaintiff achieved partial success, and as to which both parties advanced good faith arguments.

V.

In his cross-appeal, defendant argues that the trial court erred in the re-calculation of his child support obligation, as reflected in the June 21, 2012 order. Defendant contends that the $5547 he received in 2010 for his mother's IRA was not "recurring" income and, therefore, should not have been considered in determining his support obligation. We agree. Defendant's one-time receipt of monies upon the redemption of his mother's IRA should not have been considered in determining child support. See Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules (2014), Appendix IX-B to R. 5:6A, at 2604 (noting that for purposes of calculating child support, gross income includes all "recurring" earned and unearned income).

Accordingly, we reverse the provision of the court's June 21, 2012 order, which increased defendant's child support obligation from $164 to $168, and remand the matter to the trial court for a re-calculation of defendant's support obligation. We expect the court will give defendant credit for any overpayments attributable to the error.

Affirmed on the appeal; reversed on the cross-appeal and remanded to the trial court to recalculate defendant's child support obligation. We do not retain jurisdiction.