ANNETTE D. BARTOLOMEO v. DANIEL CASSANO

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1161-05T1

ANNETTE D. BARTOLOMEO,

Plaintiff-Respondent,

v.

DANIEL CASSANO,

Defendant-Appellant.

__________________________________

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December 4, 2006

Submitted October 23, 2006 Decided

Before Judges S.L. Reisner and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1544-95A.

Jacobowitz, Defino, Latimer, Fradkin, Comer & O'Toole, attorneys for appellant (Brian P. Latimer, of counsel; Marybeth Hershkowitz, on the brief).

Paras, Apy & Reiss, attorneys for respondent (Peter C. Paras, of counsel; Beth Anne Hahn, on the brief).

PER CURIAM
This is an appeal from a post-judgment order enforcing an obligation in a property settlement agreement (PSA) to contribute to the college education of the child born of the marriage. Defendant Daniel Cassano raises three issues on appeal: first, that the Family Part judge erred in requiring him to pay one hundred percent of the college expenses; second, that the judge erred in not adjusting child support payments in light of his obligation to contribute to college expenses; and third, that the judge erred in granting plaintiff the ability to enforce the support order with a bench warrant. We reverse and remand for further proceedings consistent with this opinion.
Plaintiff Annette Bartolomeo and Cassano were married on November 15, 1980. They had one daughter, Danielle, now known as Nicole, See footnote 1 who was born on May 11, 1986. Bartolomeo claimed that Cassano was physically and emotionally abusive towards herself and Nicole. Bartolomeo sought and obtained a temporary restraining order on April 7, 1995. See footnote 2
The parties' divorce was finalized on March 26, 1996, and the judgment of divorce incorporated the March 4, 1996, PSA. The provisions of the PSA included a weekly payment of $225 in child support, which had risen to $270 by the time of the post-judgment motions, to be made by Cassano to the Monmouth County Probation Department. In addition, the PSA provided for the payment of Nicole's college expenses as follows:
It is specifically understood and agreed by and between the parties that both parties have an obligation to provide for the college education of the child [Nicole], taking into consideration their respective income and assets at the time the child attains the appropriate age. The parties agree to consult with a view toward adopting a harmonious policy concerning the college education of the child. The parties agree that the child will make maximum use of any scholarships, grants, or financial aid available to her and shall apply a portion of her own assets and earnings towards said college education. Any shortfall shall be split by the parties based on their respective financial abilities at that time, subject to applicable law at the time the child applies to college. (Emphasis added.)

On June 28, 2005, Cassano filed a motion for post-judgment relief to emancipate Nicole and to discontinue his obligation to provide life insurance on her behalf. In his certification Cassano noted that Nicole had turned eighteen on May 11, 2004, and stated that he did not know if she was in college. Bartolomeo then filed a cross-motion to enforce litigants' rights and opposed the emancipation motion. Bartolomeo sought to enforce Cassano's obligation to contribute toward Nicole's college education, but provided no proof of those amounts. She also sought enforcement of the life insurance provision. She asked the judge "[n]ot to disclose the name and location of Nicole's college to the defendant" and supplied the judge in camera with the information showing that Nicole was attending college as a full-time student. Bartolomeo certified that Nicole had loans totaling more than $33,000 and that Bartolomeo had co-signed for them. There is no evidence in the record that Bartolomeo submitted a Case Information Statement (CIS) detailing her finances in conjunction with this cross-motion.
The judge denied Cassano's motion on July 22, 2005, and granted Bartolomeo's pro se cross-motion. Because Bartolomeo supplied the judge with proof of Nicole's enrollment in a four-year university, Cassano's motion for emancipation was denied. The judge also refused to terminate Cassano's life insurance obligation. Cassano was ordered to maintain his current child support contribution "as a means of contributing towards the child's college education as [Bartolomeo] has not provided proof of other college costs which [Cassano] should pay." The judge refused to disclose Nicole's location to Cassano.
On August 3, 2005, Cassano filed a motion for reconsideration of the sentence in the judge's statement of reasons that indicated that the "[f]inal restraining order warrants preventing defendant from learning daughter's location." Bartolomeo then filed a cross-motion in which she asked the judge to deny Cassano's application; to specifically enforce the terms of the July 22, 1998, final restraining order; to enforce and fix Cassano's obligation under the PSA to contribute to Nicole's college expenses; to require Cassano to reimburse Bartolomeo for his portion of Nicole's college expenses for her first three semesters in college; to set a timeline for the payment of future college expenses; and to require proof of satisfaction of the life insurance obligation. In her August 29, 2005, certification, Bartolomeo detailed Nicole's college expenses and stated the specific amounts paid by loans, grants and awards. The back-up documentation was not supplied to Cassano, but was submitted to the judge for in camera review. Bartolomeo certified that she attached a CIS. Neither the CIS nor the back-up documentation is in the record on appeal.
Bartolomeo asked the court to hold Cassano liable for a portion of Nicole's college expenses. She alleged that Cassano "is doing quite well," and that he owned Avanti Construction, Inc., "a well established business of twenty-five years." She also averred: "The housing market boom most certainly has positively impacted the defendant's financial situation. The defendant not only builds new homes, but is also a subcontractor for other builders. He also remodels bathrooms, kitchens, does masonry work, etc." Bartolomeo did not specifically state that the CIS Cassano filed when he sought emancipation was false or misleading.
At oral argument on September 16, 2005, Bartolomeo's attorney argued that Cassano had not responded to the issues raised by Bartolomeo respecting his employment and his ownership of Avanti Construction, Inc. The court responded:
I guess your position boils down to what I would call a MORRIS [Morris v. Morris, 263 N.J. Super. 237, 244-45 (App. Div. 1993)] application. If he doesn't want to have to pay the costs, then under MORRIS the burden is on him in this application to come forward with his complete financial picture and say here's what I can afford, Judge. That until he comes forward under MORRIS, in which the Appellate Division was absolutely clear 12 years ago that a person seeking to avoid a child support payment must reveal all of his assets, all of his borrowing capacity, and all of his income and every source of income including his tax returns, what sort of loans he has and from whom, and what he pays on them.

And once he comes forward with the complete picture, then I can determine whether or not his claim that he can't afford to do this is valid. Until he does that, I don't have to worry about it because MORRIS says it's his obligation to convince me this is what he can afford. And until he reaches that burden under MORRIS I don't have to do anything. . . . And I suppose your view is that the factors in NEWBURGH [Newburgh v. Arrigo, 88 N.J. 529, 545 (1982)] arise only because the law of this State encourages joint custody. But in this case there isn't any joint custody because of the DV.

Bartolomeo contended that a Newburgh hearing was not required because the only issue raised by Cassano was the lack of a relationship with Nicole, that the record clearly established that the lack of a relationship was solely attributable to Cassano's violent behavior, and that under those circumstances Cassano was not entitled to avoid his obligation under the PSA. She then departed from the position she took in her certification and contended that Cassano should be responsible for all of the loans that were required to pay for Nicole's education. The court then asked, "Is there some reason that that shouldn't be shared by the parents?" Bartolomeo's counsel replied, "There's no reason it shouldn't be shared. I'm not sure what the percentages should be though because we don't have any financial information." The following dialogue between the court and Bartolomeo's counsel ensued:
THE COURT: So, okay. Now I'm going to put you in a different position. I want you to put on the hat of the Appellate Division now, and you're going to get an order on your desk that's signed by me in which there was 12,000 that she put out last year and 17,000 that she's putting out in terms of loans that she has to repay over time, and I compel him to pay all 12,000 of it. Should that order simply be affirmed based on this record?

. . . .

MR. PARAS: I say, you know [the judge] did a wonderful job and we're going to affirm his decision.

THE COURT: And the reason being that . . . under NEWBURGH the defendant should pay because he has a greater income. Right?

MR. PARAS: That's the allegation and it's not refuted. And he had the opportunity to do so.

THE COURT: Okay. And so the reason that he pays 100 percent is I can't pay dime one of it, which is why I had to take out the loan. He's got a business, ergo . . . if he couldn't have paid it then he should have come forward and told me out of the 12,000 that I had to pay how much he could pay.

MR. PARAS: That's correct.

THE COURT: And since he didn't do that, then . . . the trial court was justified in hitting, under MORRIS, him with the entire bill because he had the burden to come forward, once he was handed the bill, to explain under the law what he could afford. And since he offered no explanation and she had to borrow every single dime of it, then he should pay.

Following this exchange, Cassano's counsel argued that it was his understanding that the motion that was pending before the court was "for reconsideration based upon the issue with regards to my client obtaining information about the college institution." He objected that the cross-motion to his motion for reconsideration should have been a separate motion, and that Cassano should have an opportunity to respond to a separate motion for a determination of the portion of college expenses each party should bear under the PSA. Counsel elaborated:
Your Honor, our submission would include any additional information with regards to the financial information and any contentions that my client will make or has made with regards to the payments already, including previous bonds. There's also issues with regards to whether or not the child has resided on campus or resided at home. There's inconsistencies with regards to tax returns that say the child lived at home for 12 months. And then there's, in the certification, an indication that total room and board for the entire year was 24, $25,000. So those statements in and of themselves are inconsistent. So there are some issues that would have to be resolved at a further hearing.

After oral argument on September 16, 2005, the judge denied Cassano's application and granted Bartolomeo's cross-motion. Two orders were entered on September 23, 2005. The order on Bartolomeo's motion established a fixed schedule and the amount of payments to be made by Cassano, See footnote 3 allowed Bartolomeo to apply for a bench warrant if Cassano failed to comply with the order, and ordered that Cassano pay Bartolomeo's counsel fees. The orders were accompanied by a statement of reasons pursuant to R. 1:6-2(f).
The judge found that the standards for reconsideration under R. 4:49-2 had not been met. The judge stated that Cassano "ha[d] not asserted any evidence under Rule 1:6-6 in his opposition to the cross-motion to create a genuine factual dispute" and had not provided financial information. The judge ordered Cassano to pay $30,150 for past college expenses by November 22, 2005, and required him to pay all future college expenses without any contribution by Bartolomeo. In addressing the question of counsel fees, the judge, in essence, stated that the reconsideration motion was meritless. Because of Bartolomeo's financial difficulties, and willingness to appear pro se in the past, he found her "request for counsel fees . . . reasonable," especially in light of the abuse she and Nicole allegedly experienced, and he awarded $2262.50 to Bartolomeo's counsel. This appeal followed.
Cassano contends that the judge erred when he modified the PSA to require Cassano to pay all of the college expenses without considering Bartolomeo's financial resources, Nicole's income and assets, and grants and scholarships she might receive. He contends that no court rule required him to provide financial information in connection with his motion. Cassano also contends that the judge erred when he failed to make an adjustment in child support in light of the judge's determination of the college-expense issue. Finally, Cassano contends that the judge erred in making his order enforceable by bench warrant, which may only be issued upon a finding of contempt.
The scope of review of a final determination by a judge of the Family Part is generally limited. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) ("The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence."). However, the deference usually accorded "when the evidence is largely testimonial and involves questions of credibility," In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997), is not applicable here, because the matter was decided based on certifications. We recognize that "matrimonial courts possess special expertise in the field of domestic relations" and that this expertise is also entitled to deference. Cesare, supra, 154 N.J. at 412-13. Nevertheless, any determination by a Family Part judge must be supported by adequate, substantial, credible evidence in the record. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974).
We begin our review with the procedural issue raised by Cassano. Rule 1:6-3(b) provides that "[a] cross-motion may be filed and served by the responding party together with that party's opposition to the motion and noticed for the same return date only if it relates to the subject matter of the original motion" (emphasis added). Bartolomeo's cross-motion to compel payment of Nicole's college expenses did not relate to the subject matter of the original motion, which only sought reconsideration of one of the judge's statements in his reasons for denying Cassano's first motion. Cassano is entirely correct in contending that he was not required to supply financial information in connection with his motion, and that the "cross-motion" was improperly filed. Bartolomeo's motion should have been denied without prejudice as improperly filed. See footnote 4
An additional ground mandated denial of the "cross-motion." A moving party is required to serve the notice of motion and all supporting affidavits or certifications upon the responding party. R. 1:6-3(a). The Rules of Court do not permit a moving or responding party to pick and choose which exhibits will be served; everything before the court must be served upon the responding party. If there is confidential information in a document, it may be redacted and subject to in camera review to determine the propriety of the redaction before a ruling is made on the motion. Thus, Bartolomeo was required to serve all of the documents respecting Nicole's college expenses on Cassano with the information identifying the college redacted. This was the process to which Cassano was due in order to permit him to fully respond.
Even assuming that the cross-motion was properly served and filed, the judge's decision on the cross-motion is not sustainable. Bartolomeo moved to enforce the PSA provision respecting college expenses. Therein, the parties had agreed that they each had an obligation to provide for Nicole's college education. Bartolomeo's motion did not seek to be relieved of that obligation, but only to compel Cassano to bear his proportionate share. Yet, Bartolomeo did not submit any proof that she and Cassano had "consult[ed] with a view toward adopting a harmonious policy concerning the college education of the child," or that Bartolomeo had attempted to do so. Indeed, Bartolomeo admitted that she had not consulted with Cassano and made no application to the court until three semesters had gone by. Cassano clearly did not know if Nicole was even in college, and so he moved to emancipate her. The impact of this failure to consult upon Cassano's obligation to pay must be determined. Gac v. Gac, 186 N.J. 535, 542, 546-47 (2006). See also Moss v. Nedas, 289 N.J. Super. 352, 359 (App. Div. 1996).
Furthermore, the PSA required that Nicole "make maximum use of any scholarships, grants, or financial aid available to her and shall apply a portion of her own assets and earnings towards said college education." Not only does the PSA require consideration of this information, but so does Newburgh, supra, 88 N.J. at 545 (factors (7) through (10)). There is no proof in the record before us that Nicole complied with her obligation, which is a condition precedent under the PSA to any financial obligation on the part of either parent. Further, the Family Part judge made no fact findings with respect to this condition.
In addition, the judge did not make any findings of fact about Bartolomeo's ability to contribute to Nicole's college expenses by analyzing her income, expenses, assets and ability to borrow. Bartolomeo obviously had an ability to borrow, because she had co-signed on significant loans. Yet the PSA specifically required that any shortfall shall be split by the parties based on their respective financial abilities at the time Nicole went to college. Not only did the PSA require analysis of both parties' income, expenses, assets, and ability to pay, so too did Newburgh, supra, 88 N.J. at 545 (factors (4) and (6)).
No analysis of these factors is contained in the judge's summary statement of reasons. He merely stated that Cassano did not "create a genuine factual dispute as to any of the twelve [Newburgh] factors." This is not the type of fact finding contemplated by R. 1:7-4. See generally, Ronan v. Adely, 182 N.J. 103, 110-11 (2004).
The judge's reliance on Morris, supra, to avoid the required analysis and to order Cassano to pay all of the college expenses was misplaced. In Morris the defendant husband sought relief from the alimony obligation to which he had agreed in the PSA. Morris, supra, 263 N.J. Super. at 238. He had agreed to pay $35,000 per year in alimony until the year 2001, at which time he agreed to make a $150,000 lump sum payment of alimony, after which his alimony obligation would end. Id. at 239. The defendant husband contended that his financial situation had taken a significant turn for the worse, however, the PSA had an anti-Lepis See footnote 5 provision. Id. at 240. We addressed that provision, and concluded that it was enforceable; however, we construed that provision as barring relief only on "the usual need (and ability) standards." Id. at 243. We held that the presence of the anti-Lepis provision did not preclude relief from defendant husband's payment obligation. Id. at 244. Although he could not reduce the total sum to be paid, we held that he could seek leave "to establish a reasonable level of current payment based upon defendant's income, assets, and reasonable resort to credit." Ibid. As to such an application, we stated that "he must be completely candid with the court. He must fully disclose his income, assets and available sources of credit." Ibid.
We are hardly suggesting that Cassano had no obligation to be candid with the court and make a full disclosure, but unlike Morris, he was not seeking to be relieved of the obligation to pay for Nicole's college expenses and did not bear the burden of proof. Rather, Bartolomeo was the party seeking relief from the court and bore the burden of proof at all times. The judge should not have penalized Cassano for failing to respond to an improper cross-motion. Furthermore, the effect of the judge's decision was to modify the PSA in the absence of any proof of changed circumstances under Lepis, supra, 83 N.J. at 153-56.
Once Cassano complained of the procedural irregularities, the judge should, at the very least, have reviewed the documents in camera, ordered production of redacted copies, if redaction was appropriate, and, thereafter, given Cassano the time allowed by R. 5:5-4(c) to respond and file a CIS compliant with R. 5:5-2(b) and Appendix V. Of course, Cassano would be obligated to attach the prior-year federal and state income tax returns, W-2 statements, Forms 1099, Schedules C, and other documents attached to the tax returns. Then, in deciding the parties' proportionate share of college expenses, the judge should consider N.J.S.A. 2A:34-23(a) and Newburgh, supra. See footnote 6
In addition, the judge must consider whether a continued child-support obligation for the unemancipated college student is warranted. See Considerations in the Use of Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A(18) to R. 5:6A at 2234-35 (2007). College or Other Post-Secondary Education Expenses (2007). Cassano cannot be made to pay for 100% of Nicole's college expenses and to continue to pay full child support when she is not living at home for the entire year. The court erred when it failed to consider this issue.
Because we are vacating the entirety of the order requiring Cassano to pay all of Nicole's college expenses, we do not address the use of a bench warrant in the absence of a finding of contempt. But see Saltzman v. Saltzman, 290 N.J. Super. 117, 124 (App. Div. 1996). We also do not address the propriety of the counsel fee award, except to observe that the award was not based on the evidence required by Williams v. Williams, 59 N.J. 229 (1971) and R. 5:3-5(c).
Bartolomeo may file a post-judgment motion to enforce the PSA within thirty days of the date of this decision. She is to file an up-to-date CIS to which she attaches all the documents required by the CIS form attached to our Rules of Court. The name of Nicole's college and similar identifying information is to be redacted from the copies of documents attached to the notice of motion and certification served upon Bartolomeo and an unredacted set of documents is to be provided to the judge for in camera review. Within the time permitted by R. 5:5-4(c), Cassano is to respond to the motion and file a CIS with all required documents attached, including similar financial information respecting Avanti Construction, Inc. Pending a ruling on that motion, the monies deposited by Cassano to secure a stay pending this appeal shall remain in escrow pending a ruling on the motion. If Bartolomeo does not file the post-judgment motion permitted by this opinion, Cassano may file a motion for the return of the funds.
Reversed and remanded for further proceedings consistent with this opinion.
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Footnote: 1 Danielle changed her name on July 3, 2000, to Nicole because she did not like being reminded of her father.
Footnote: 2
An amended final restraining order was entered on July 22, 1998, barring Cassano from having any contact with Nicole.
Footnote: 3 The amount sought by Bartolomeo and ordered by the judge represented the "shortfall" in the payment of Nicole's college expenses. Bartolomeo's attorney calculated this number as the amount "Ms. Bartolomeo has had to borrow in order to put the child through school. It was, for last year it was $12,585 and for this year it's $17,565." Though it is not included in the record on appeal, Bartolomeo's August 29, 2005, certification refers to the proof of these amounts as being attached.
Footnote: 4 We also note that it was not served and filed more than twenty-nine days before the return date. See R. 5:5-4(c).
Footnote: 5 Lepis v. Lepis, 83 N.J. 139 (1980).
Footnote: 6 In light of the PSA, we note that factors (1) and (2) in Newburgh and the statute may not be applicable to this case. They nonetheless should be discussed by the judge.

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