CHRISTINE M. BETTENCOURT v. DAVID A. BETTENCOURT

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1374-05T51374-05T5

CHRISTINE M. BETTENCOURT,

Plaintiff-Respondent,

v.

DAVID A. BETTENCOURT,

Defendant-Appellant.

__________________________________

 

Submitted November 14, 2006 - Decided December 11, 2006

Before Judges Skillman and Grall.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-279-04C.

Gregory M. Gennaro, attorney for appellant.

Corinne Campi, attorney for respondent.

PER CURIAM

This is an appeal from parts of two post-judgment orders entered on October 7, 2005.

The parties were married in 2000 and divorced in 2004. Two children were born of the marriage, who were ages two and four when the post-judgment orders were entered. The parties have joint legal custody, with plaintiff the parent of primary residence.

The property settlement agreement incorporated in the judgment of divorce required defendant to pay $231 per week for child support. The agreement also obligated defendant to pay 50% of "the cost of all reasonable and necessary work-related child care for the children[.]" The agreement further provided that "[a]ll personalty and contents of the marital home" shall be divided equally and that all "marital credit card debt" shall be paid equally.

Around six months after the divorce, a dispute arose concerning defendant's payment of work-related child care costs, the division of the contents of the marital home and allocation of credit card debt. The dispute was brought before the trial court by cross-motions.

In the certification in support of his motion, defendant stated that plaintiff had continued, over his objection, to care for the children by means of "nannies." Defendant contended that the children would be provided better care at a lower cost by placement in daycare. In her answering certification, plaintiff contended that child care by a nanny was more feasible than daycare and preferable for the children because of her irregular work hours and the children's ages.

Defendant also alleged that plaintiff had not provided him with credit card statements for the period for which she was seeking contribution and that she appeared to be seeking half the costs of items that were her sole responsibility such as the cost of her cosmetic surgery. In addition, defendant alleged that he had not received half the personalty and contents of the marital home, as provided under the property settlement agreement, despite repeated requests for plaintiff to comply with this part of the agreement.

In her answering certification, plaintiff alleged that all issues relating to marital debt had been resolved in a meeting at her attorney's office on December 20, 2004. Plaintiff claimed that defendant's entitlement to half the personalty and contents of the marital home had been satisfied by his removal from the garage of tools and equipment used in his business.

By an oral opinion rendered on October 7, 2005, supplemented by a written opinion dated November 16, 2005, the trial court rejected defendant's claims relating to child care costs, responsibility for credit card debt and defendant's entitlement to one-half the personalty and contents of the marital home. Accordingly, the court entered orders requiring defendant to pay work-related child care expense arrearages in the amount of $5,450 through July 15, 2005 and future work-related child care expenses in the amount of $212.50 per week. The court denied defendant's claims relating to credit card debt and the division of the contents of marital home, except for his grandmother's table and one painting.

We affirm in part, reverse in part, and remand the case to the trial court.

I

Defendant argues that plaintiff failed to consult with him regarding the form of child care that should be provided for the children and failed to document the expenses she incurred in providing daycare. Defendant also argues that it would be better for the children to be placed in a structured daycare program than to be cared for at home by a nanny.

The property settlement agreement provides in pertinent part:

Work-Related Child Care: The parties shall divide the cost of all reasonable and necessary work-related child care for the children on an equal 50/50 basis. Husband shall pay his share of these expenses directly to Wife within ten (10) days of being presented with proof of the expense. The parties shall discuss and agree, in advance, on any paid child care with neither party unreasonably withholding his or her consent as to the decisions concerning same.

The trial court did not find that plaintiff had complied with her obligation "to discuss and agree, in advance on any paid child care," and we question whether the record could support such a finding. We also question whether the record adequately supports the court's finding that care at home with a nanny, rather than in a structured daycare program, is in the children's best interests. Nevertheless, we see no basis for relieving defendant of his obligation to contribute half the cost of work-related child care. Moreover, defendant acknowledged in his communications with plaintiff's counsel that the reasonable cost of a nanny was approximately the amount upon which his obligation to plaintiff was calculated. Therefore, we affirm the parts of the order on appeal that require defendant to pay work-related child care expenses arrearages in the amount of $5,450 through July 15, 2005 and future work-related child care expenses in the amount of $212.50 per week.

However, we agree with defendant that the trial court did not give adequate consideration to his allegation that care at home with a nanny is not in the children's best interests on an ongoing basis. Therefore, we remand to the trial court for reconsideration of that issue. Defendant's obligation to pay plaintiff $212.50 per week for child care shall continue pending that reconsideration.

II

The property settlement agreement negotiated in June 2004 provided:

Credit Cards: The parties have incurred marital credit card debt, which are primarily in Wife's name. The parties shall evenly divide the minimum monthly payments due on this debt until the closing of sale of the marital home, at which time all balances due will be paid from the sale proceeds before either party receives their share. The marital credit card debt has been itemized by card name and balance due as of the date of the signing of this Agreement on Schedule "C" attached hereto.

The parties shall each be responsible for their own personal credit card debts incurred since their separation without any contribution from the other party.

The "Schedule 'C'" referred to in this provision was not attached and apparently does not exist.

Before executing this agreement on November 16, 2004, the parties agreed on an addendum that states in pertinent part:

The parties shall exchange proof of marital credit card debt that exists in joint names or in either party's name within twenty-one days. The parties specifically agree to produce proof of debt for which they are seeking contribution from the other within this twenty-one days. Marital debt shall be defined as debt existing at the time of the filing of the Second Complaint for Divorce dated August 20, 2004. The parties will thereafter negotiate and memorialize the marital debt into a Schedule "C". If an agreement can not be reached, either party may file an application seeking court intervention and request an award of counsel fees against the unreasonable party. At closing of sale of the marital home, the total amount of disputed marital debt will be held in escrow pending further Order of the Court.

The parties apparently failed to exchange proof of marital credit card debt or to execute a "Schedule 'C'," as provided in this addendum.

Approximately a month after execution of the agreement, at a time when defendant was not represented by counsel, the parties discussed credit card debt as well as other issues in the office of plaintiff's counsel. The agreements reached at this meeting were memorialized by a letter from plaintiff's counsel, dated December 20, 2004, which stated in pertinent part:

It was agreed that I will now take the sum of $45,000.00 and place it in a separate and distinct trust account within our Attorney Trust Account. From those funds, I will pay the mutually agreed upon joint marital credit card debt whether it be in both names, Christine's name or in David's name. The figure of $45,000.00 was agreed upon as a result of both of you indicating your belief that there was approximately $45,000.00 in total debt. Once all joint credit card debt has been paid from this separate trust account, the balance will be evenly divided between the two of you.

. . . .

It was further agreed that each of you will provide the other with any remaining credit card statements that are required in order for you to satisfy one another that the debts being paid from the account which I am establishing today are in fact marital and mutually agreeable.

By letter dated January 6, 2005 to defendant, plaintiff's counsel confirmed the parties' agreement that defendant was only liable for 50% of marital credit card debt and not for credit card debt incurred by plaintiff for her personal expenses:

We agreed at the end of the meeting at my office that $45,000 would be escrowed and that Christine's credit card bills in the total approximate amount of $28,000 would be paid subject to your review of those bills and comments. Christine asked you and you agreed to get the bills paid due to the fact that she was having a mortgage application completed and closing of a new home which required her to have these debts resolved.

. . . .

I am leaving it up to Christine and [you] to dispute the specific charges of these credit card between yourselves. If you cannot resolve this issue, then a Motion will have to be filed by one of you and Judge can decide the issue. . . .

With regard to your comments concerning [plaintiff's cosmetic surgery] please note that you asked me in Court on November 16th, 2004, whether you would have to contribute to Christine's surgery and I indicated that typically these charges would not be considered marital. I do not believe that Christine is disputing your position.

In rejecting defendant's application for an order compelling plaintiff to produce itemized credit card statements for all items she claims are marital debt or, in the alternative, an order declaring that all such items are plaintiff's sole responsibility, the trial court relied solely upon the agreement between the parties reached at the December 20, 2004 meeting at the office of plaintiff's counsel. However, as indicated by the previously quoted December 20, 2004 and January 6, 2005 letters from plaintiff's counsel, this agreement only authorized plaintiff's counsel to pay off the parties' outstanding credit card bills so that plaintiff could obtain a mortgage. The agreement did not determine what portion of that credit card indebtedness was true marital debt and what portion was the individual debt of each of the parties. This question was left for resolution at a later date after the parties had produced credit card statements that showed the individual entries in the various accounts. This intent was made unmistakably clear in the December 20, 2004 letter:

It was further agreed that each of you will provide the other with any remaining credit card statements that are required in order for you to satisfy one another that the debts being paid from the account which I am establishing today are in fact marital and mutually agreeable.

Moreover, insofar as the record before us indicates, plaintiff never produced all the statements for the credit card debt paid by her attorney. Therefore, the trial court erred in denying this part of defendant's motion.

III

The property settlement agreement contained the following provision regarding the distribution of personalty:

Personalty, and Contents of the Marital home: All personalty and contents of the marital home shall be split 50/50.

Any and all other personal property not specifically mentioned in this Agreement which is present in the possession, ownership, or name of the respective parties as of the date hereof, will remain in their individual possession and ownership and shall include, but not be limited to, personal possessions, bank accounts, stocks, bonds, jewelry and other such property.

The furniture and artwork in the marital home clearly constitute "personalty and contents of the marital home," which the agreement obligated the parties to "split 50/50[,]" rather than "other personal property," which the agreement allowed the individual in possession to retain.

In concluding that defendant was not entitled to any of the furniture and artwork in the marital home except for his grandmother's table and one painting, the trial court stated:

This court's interpretation of the PSA is that the parties were required to split the marital property prior to the divorce and prior to the defendant leaving the marital home. This did not occur, and now almost eighteen months since the PSA, the defendant would like to divide up the household furniture. After such a long delay, based on the facts of this case and evidence presented, it would not be fair or just for this court to grant the relief that the defendant requests. Plaintiff's motion is granted and the issue of personalty between the parties is concluded consistent with the terms of the PSA, with each retaining the property currently in their possession, with the exception of the table belonging to defendant's grandmother and one remaining painting, both of which defendant shall retrieve within ten days of this order.

We find no support in the property settlement agreement for the court's conclusion that the parties were required to divide the marital property prior to the divorce and prior to defendant leaving the marital home. To the contrary, the communications between the parties after the divorce clearly indicate that this was not their understanding. There is also no support in the record for the court's conclusion that defendant delayed "almost eighteen months" before asserting his right to one-half the furniture and artwork. The record indicates that the parties continued to live together in the marital home until August 2004. Moreover, defendant sent letters to plaintiffs' counsel regarding the furniture and artwork in the marital home on November 18, 2004, January 5, 2005, January 10, 2005 and January 11, 2005, and after defendant retained new counsel, he sent letters on defendant's behalf to plaintiff's counsel regarding the furniture and artwork on March 3, 2005, May 17, 2005 and July 6, 2005. The record thus indicates that the division of the furniture and artwork was a subject of continuous controversy between the date of the divorce and the filing of the cross-motions that brought this issue before the trial court. Therefore, the trial court erred in concluding that defendant delayed unduly in asserting this claim.

Accordingly, we remand the issue of work-related child care to the trial court for reconsideration in conformity with this opinion. We reverse the parts of the October 7, 2005 orders relating to the allocation of marital credit card debt and the division of the furniture and artwork and remand those claims. The October 7, 2005 orders are affirmed in all other respects.

 

The trial court also made various other rulings that are not challenged on this appeal.

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A-1374-05T5

December 11, 2006