D.I.L. v. P.C.L.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

D.I.L.,

Plaintiff-Appellant,

v.

P.C.L.,

Defendant-Respondent.

-

July 19, 2016

Argued November 9, 2015 Decided

Before Judges Fasciale and Nugent.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-776-12.

Michael Confusione argued the cause for appellant (Hegge & Confusione, LLC, attorneys; Mr. Confusione, of counsel and on the brief).

Erin L. Thompson argued the cause for respondent (Bastarrika, Soto, Gonzalez, Somohano, LLP, attorneys; Ms. Thompson, on the brief).

PER CURIAM

Plaintiff D.I.L. appeals from provisions of two June 17, 2014 Family Part orders: compelling plaintiff to cooperate in selling the marital home, finding no change in circumstances requiring modification of child support, granting defendant extended parenting time with two children, denying plaintiff's motion to compel defendant to pay agreed-upon expenses, and denying plaintiff attorney's fees. For the reasons that follow, we affirm in part and remand for further proceedings.

The parties were married for twenty-six years and had five children. They divorced in June 2013 when, following a hearing, a Family Part judge entered a Dual Joint Judgment of Divorce (JOD). The judge determined during the hearing the parties had freely and voluntarily entered into a Matrimonial Settlement Agreement (MSA), which was incorporated into the JOD. The JOD directed the parties to comply with the terms of the MSA.

When the parties were divorced, one of their five children had been emancipated and two others had reached the age of majority. The MSA provided the parties' would share joint legal custody of the two minor children and designated plaintiff "their primary residential custodian" and defendant "their alternate residential custodian." Paragraph 1.3 provided if the parties were unable to address and resolve any issues concerning their children, "they shall present the issue to an experienced family law mediator."

The MSA allocated parenting time during the week and during holidays, stating "[t]he parties agree that the holiday schedule shall supersede the vacation schedule and the regular parenting time schedule. In addition, the vacation schedule shall supersede the regular parenting time schedule."

Defendant agreed to pay weekly child support of $156. MSA paragraph 2.1 provided: "The payment of support shall be made directly to [plaintiff] effective upon the sale of the marital home." The parties agreed "to list the marital residence for sale immediately." MSA paragraph 2.2 stated: "Child support may be modified based on changed circumstances as permitted by New Jersey Case Law." The MSA required defendant to pay plaintiff yearly alimony of $66,000, commencing upon sale of the marital residence, and $600 per month pending sale of the house. Concerning the children, defendant was responsible for sixty percent and plaintiff for forty percent of the children's private school tuition and fees for extra-curricular activities. Defendant agreed to: be one hundred percent responsible for college costs and expenses of the two older, unemancipated children; continue to maintain health, prescription, and dental coverage through his insurance at work; and maintain his life insurance in the amount of $500,000 with his children as irrevocable beneficiaries. The parties were each "entitled to complete and full information from any physician, dentist, consultants or specialists attending the children for any reason whatsoever and to have copies of any reports given by them or any of them to the [defendant] and [plaintiff]."

Lastly, the MSA addressed equitable distribution. Defendant agreed plaintiff could remain in the marital property until it was sold.

Less than a year after the court filed the JOD, the parties filed cross-motions. By then, the three older children were not speaking to plaintiff. Defendant sought additional parenting time with the two younger children. Plaintiff filed a cross-motion seeking substantial modification of virtually all the MSA's provisions concerning parenting time, child support, and the sale of the marital home.

In a supporting certification, plaintiff made serious allegations against defendant, claiming he had exposed the children to pornography and underage drinking, and had permitted one or more of them to drive without a license. Plaintiff also alleged defendant had sexually abused one of their minor daughters. According to plaintiff, one of the parties' daughters had to be hospitalized and, upon her discharge, continued to suffer from depression.

Plaintiff further alleged her former husband had abused her severely, mentally and physically, during their marriage. She averred she had obtained a final restraining order against defendant, but he continued to violate it by coming to the marital home and ignoring the curbside pick-up.

Concerning the MSA, plaintiff certified defendant had failed to pay for many of his obligations, including alimony, child support, his share of private school tuition for the children, mortgage, medical, life, and auto insurance costs. She also asserted defendant did not comply with the parenting time schedule and had not cooperated in providing insurance information that would cover their daughter's medical expenses. Plaintiff requested the marital home not be sold, because two of her daughter's medical providers opined that it would not be in the child's best interest to disrupt her current living arrangement.

Lastly, plaintiff alleged defendant was involved in tax fraud and perjury. Consequently, she refused to cooperate in matters involving the parties' taxes.

Defendant opposed plaintiff's cross-motion. He adamantly disputed plaintiff's averments, asserting they demonstrated she was deeply troubled. He claimed her own doctor had diagnosed her as "delusional with paranoid schizophrenic ideations." He pointed out that she had previously made the same allegations, which had been investigated and found to be meritless.

Defendant claimed plaintiff had prevented him from communicating with two of the children. He asserted plaintiff had not informed him one of the younger children had been hospitalized. As to plaintiff's specific allegations, defendant averred he had maintained medical insurance on the children, produced emails documenting his attempts to resolve parenting time issues, and recounted plaintiff's obstruction of his attempts to maintain the marital residence and have it sold.

The Family Part judge entered two orders on June 17, 2014, one addressing each motion. Defendant has not appealed. Among other issues addressed, the judge ordered defendant to supply medical insurance cards for the two minor children and provide proof of medical coverage. He also ordered defendant to bring current and keep current all outstanding utilities, car payments, and other expenses required by the JOD. Additionally, the judge ordered defendant to immediately bring current his 60% share of the children's private tuition payments, and to reimburse plaintiff for his share of tuition she had previously paid.

The judge granted defendant extended parenting time for vacation with the children, upon thirty days notice to plaintiff, noting such parenting time was in accordance with the MSA. The judge also enforced the terms of the MSA by ordering the sale of the marital residence, and by requiring defendant to make the support payments "directly to [plaintiff] effective upon the sale of the marital residence." The judge denied both parties counsel fees.

Plaintiff appealed from most of the orders' provisions decided aversely to her. Shortly after oral argument on plaintiff's appeal, defendant's counsel advised that plaintiff had filed a bankruptcy petition, and defense counsel enclosed a bankruptcy court "Order Vacating Stay For Limited Purpose and Waiving The Fourteen-Day Stay." The order granted defendant's motion to permit him to remove plaintiff from the marital residence to allow the property to be sold or further listed and marketed. The motion was denied to the extent it sought a sale of the marital residence outside of bankruptcy court, as the property had become an asset of the bankruptcy estate. The parties have provided no further information concerning either the sale of the marital residence or the status of the bankruptcy proceedings.

On appeal, plaintiff asserts the Family Part judge erred when he: (1) ordered the parties to comply with the MSA and sell the marital home; (2) did not compel defendant to pay child support and alimony; (3) granted defendant extended parenting time; (4) did not order defendant to pay the mortgage, medical, life, and auto insurance costs as required by the MSA; and (5) denied plaintiff counsel fees.

In view of the bankruptcy proceedings, and because the marital residence became an asset of the bankruptcy estate, plaintiff's first argument is now beyond our jurisdiction. Moreover, we are unaware of the status of the bankruptcy proceedings. For those reasons, we cannot address plaintiff's first argument.

Plaintiff's second argument, concerning child support and alimony, is entwined with the first issue concerning the sale of the marital residence. Her argument is threefold: first, the MSA provision tethering child support and increased alimony payments to the sale of the marital residence violated public policy, as the right to child support belongs to the children, not the custodial parent; second, the judge failed to evaluate defendant's child support obligations under the child support guidelines; and third, the judge erred by finding no change in circumstances justifying a modification of child support.

We fail to discern from the record where plaintiff raised the first two issues.

It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available "unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest."

[Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)).]

We decline to address the issues not raised on the motion.

Whether a child support obligation should be modified based on changed circumstances is a decision that rests within a Family Part judge's sound discretion. See Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). Each case "rests upon its own particular footing and the appellate court must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters." Ibid. (quoting Martindell v. Martindell, 21 N.J. 341, 355 (1956)). We will not disturb a trial court's decision "unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice." Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012) (quoting Foust v. Glaser, 340 N.J. Super. 312, 315-16 (App. Div. 2001)).

Plaintiff's primary premise circumstances have changed because it is no longer in the children's best interests to sell the house is no longer valid. The bankruptcy court has apparently permitted the sale to proceed. Consequently, plaintiff's argument is moot.

Plaintiff's third argument, attacking the judge's grant of extended vacation parenting time to defendant, is without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). The argument is based on stale allegations pre-dating the parties' divorce. These allegations had been previously investigated. Although plaintiff alleged that a child's recent hospitalization stemmed in part from previous abuse by defendant, the allegation was unsupported by competent evidence. Under those circumstances, we find no abuse of discretion in the judge's granting extended parenting time in accordance with the MSA.

In her fourth argument, plaintiff argues the court erred by failing to enforce the MSA provisions requiring defendant to pay his share of the mortgage, medical, life, and auto insurance costs required by the MSA. We glean from the record plaintiff did allege defendant's non-compliance with these MSA obligations in the certification she submitted in support of her cross-motion. Defendant did not address them in his reply certification. During oral argument, defense counsel claimed if defendant had not paid utility bills and payments for plaintiff's car, it was because plaintiff had not sent the bills to him. Plaintiff's counsel denied that assertion. Defense counsel argued there was "no mortgage" and there was "[n]o car insurance and no life insurance. In other words, the insurance should be taken out." He said the same thing concerning homeowners insurance.

MSA Article 5 requires defendant to maintain life insurance in the amount of $500,000 naming the children as irrevocable beneficiaries and naming plaintiff trustee, until such time as children become emancipated. MSA paragraph 11.1 states

[Plaintiff] shall retain the 2008 Mercedes Benz free of any claim of [defendant], and shall be solely responsible for all costs in connection with her automobile including but not limited to car payments, insurance, maintenance, repairs, gasoline, turn-in fees, and the like and shall indemnify and hold [defendant] harmless thereon. [Defendant] will make payments on this account and shall make sure that the payments are current until the home is sold. Upon the sale of the home [plaintiff] will take over all payments on this vehicle.

The parties disputed whether, pending sale of the home, defendant was to make only the car payment or the insurance and other payments as well. In its final order, the judge required defendant to make car payments, but did not require defendant to pay for any other expenses related to the car, or any insurances.

Unfortunately, the judge did not explain his reasons for this part of his decision. Clearly, defendant was not required to make the mortgage payment as per the MSA. But the MSA expressly required defendant to maintain life insurance, and there was a dispute as to what expenses associated with plaintiff's car defendant was obligated to pay pending sale of the marital home. We cannot evaluate whether the judge abused his discretion as to these issues without understanding the reasons for his decision. Rule 1:7-4(a) states, in pertinent 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 in all actions tried without a jury, [and] on every motion decided by a written order that is appealable as of right." Accordingly, we remand this matter so the motion judge can make findings of fact and conclusions of law as to paragraphs ten and eleven of the June 17, 2014 order submitted by plaintiff's attorney, as altered and filed by the judge; particularly his exclusion of life insurance and auto insurance from defendant's obligations. We leave to the discretion of the judge whether a hearing is required to resolve these issues.

We would ordinarily retain jurisdiction were this the only issue to be decided on remand. Here, however, it is readily apparent plaintiff has undergone a significant change in circumstances that may warrant modification of defendant's child support obligation. Plaintiff is bankrupt. Any equity she had in the marital residence is now an asset, subject to any allowed exemptions, of the bankruptcy estate. Plaintiff has not received child support for the two younger children because under the MSA the sale of the marital residence is the trigger for child support payments, a trigger of dubious validity, but one raising an issue that has not been properly preserved or developed on the record before us. This is certainly not the fault of the two children who have not had the benefit of child support. Accordingly, we direct the judge to address the issue of child support on remand, unless plaintiff no longer chooses to pursue it. We do not preclude the parties from seeking enforcement of the court's previous orders.

Lastly, plaintiff challenges the Family Part judge's denial of counsel fees. In view of our remand, the judge can consider whether counsel fees may be awarded in light of the criteria set forth in Rules 4:42-9(a)(1) and 5:3-5(c).

Affirmed in part, remanded in part for further proceedings consistent with this opinion. We do not retain jurisdiction.