FREDERICK WULFF v. MARY G. CAROBENE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1813-04T21813-04T2

FREDERICK WULFF,

Plaintiff-Respondent,

v.

MARY G. CAROBENE,

Defendant-Appellant.

 

Submitted November 29, 2005 - Decided February 22, 2006

Before Judges Hoens and Seltzer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-26965-87.

Mary G. Carobene, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Defendant Mary G. Carobene appeals from two orders entered by the Chancery Division, Family Part. The October 29, 2004 order addressed her application in aid of litigant's rights relating to child support arrears and a request for contribution from plaintiff Frederick Wulff toward college costs. The November 9, 2004 order awarded defendant counsel fees in a sum lower than she had requested. Defendant appeals only to the extent that the orders denied her applications in part. We affirm.

The parties were divorced in 1987. As a part of that proceeding, they entered into a Property Settlement Agreement. In relevant part, plaintiff agreed to pay defendant $1,000 per month in child support for their only child until the child was emancipated. In addition, the parties established a $20,000 trust fund for the child's college education and agreed that they would share the child's educational costs on a pro rata basis to the extent that the fund was insufficient.

In 1997, the parties entered into a written agreement pursuant to which they temporarily reduced plaintiff's agreed-upon child support obligation to $750 per month, with the understanding that any and all arrears would be paid after the emancipation of the child. That agreement specified that as of November 1, 1997, the total amount of child support arrears was $8,250. The child of the parties was emancipated in 2001 after completing her college studies.

In August 2004, defendant filed her motion seeking to compel plaintiff to pay outstanding child support arrears of $17,400 and the sum of $19,812, which she asserted represented his share of the child's college expenses that were in excess of the amount in the trust fund.

Plaintiff opposed the application. He asserted that defendant had erred in her calculation of child support arrears by using a pre-November 1997 figure higher than the $8,250 that the parties had agreed was then due. He objected to the college expense reimbursement request on numerous grounds, including the accuracy of the calculations, the failure to take into account direct payments he had made to the child, the length of time that the child had taken to earn her degree, the child's decision not to attend a college to which she could commute, and the inclusion of the balance due on loans in the child's name in the amount demanded. Plaintiff also opposed the application based on intervening reductions in his income and the needs of his later-born child.

Defendant responded to many of these points in a further certification. In relevant part, she asserted that plaintiff had been aware of the college loans and she reiterated that her child support calculations were correct notwithstanding the fact that the figures she used were different from the amounts set forth in the 1997 agreement.

Following oral argument, the motion judge found that there was a mathematical error in the 1997 agreement respecting the then-outstanding child support arrears, but concluded that the parties were bound by that agreement. He therefore found that defendant's application for an award of arrears was overstated by $5,400 and he reduced the award accordingly from $17,400 to $12,000 in arrears.

The judge then addressed the application concerning the child's college expenses. He found that the parties had agreed to share those expenses until the child completed her education, rejecting plaintiff's arguments about the length of time it had taken the child to finish her studies, the child's living arrangements and the other claimed errors in the calculations. Notwithstanding that finding, the judge concluded that plaintiff was not responsible to repay any portion of the college expenses represented by the child's student loans. He reasoned that if the parties had sought his assistance in advance, he would have directed the child to secure financial assistance, including loans, prior to requiring the parties to fund her education in light of the parties' limited means. He further reasoned that the application was an inappropriate request for a retroactive child support modification. See N.J.S.A. 2A:12-56.23a. As a result, the judge ordered plaintiff to pay $1,656 representing plaintiff's share of the outstanding college expenses incurred by defendant after depletion of the trust fund and prior to the time when the child took out the loans.

Finally, the judge ordered that plaintiff pay counsel fees based on the child support arrears application. Counsel for defendant submitted her certification of services seeking $5,970.24 in counsel fees. Plaintiff opposed that request, pointing out, in relevant part, the limited success that defendant had achieved and his own modest financial means. On November 9, 2004, the judge awarded defendant $2,500 in counsel fees, noting that the motion for the child support arrears had been necessitated by the "unreasonable position of plaintiff."

On appeal, defendant asserts that the motion judge erred in refusing to recognize that the 1997 agreement was based on a mathematical error, in concluding that plaintiff was not responsible to pay any part of the child's student loans, in failing to consider an inheritance plaintiff had received as a source to pay for the child's college education and in reducing her counsel fee request. We have considered these arguments in light of the record and the applicable legal principles and we have concluded that they are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We therefore affirm and add only the following observations.

We begin our analysis of these issues with a brief review of well-established principles. In exercising our review function, an appellate court should give substantial deference to the trial court's findings of fact, as long as those findings are supported by adequate, substantial, credible evidence in the record. See Pascale v. Pascale, 113 N.J. 20, 33 (1988). Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).

We find no error in the judge's analysis of the application for an award of child support arrears. The 1997 agreement between the parties that fixed the amount of arrears is a contract that we interpret in accordance with ordinary contract principles. See Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995). It is enforceable unless it is "unconscionable or is the product of fraud or overreaching by a party with power to take advantage of a confidential relationship . . . ." Ibid. We discern nothing unconscionable in the terms of the agreement itself and no evidence of fraud or overreaching by plaintiff respecting the calculation of arrears as set forth in the November 1997 agreement.

In the alternative, to the extent that defendant asserts that the November 1997 agreement does not reflect the true amount of arrears and that it should be reformed, she must show that "a common mistake or the mistake of one party accompanied by the fraudulent knowledge of the other" occurred and that the writing does not express the true agreement of the parties. See Capanear v. Salzano, 222 N.J. Super. 403, 407 (App. Div. 1988). In addition, however, she must demonstrate, by clear and convincing proof, "that the contract in its reformed, and not original, form is the one that the contracting parties understood and meant it to be; and as, in fact, it was but for the alleged mistake in its drafting." Ibid. (quoting Kuller v. Fire Ass'n of Philadelphia, 124 N.J. Eq. 473, 475 (Ch. Div. 1938)).

There is no evidence in the record that the outstanding amount of child support arrears included in the 1997 agreement was the product of fraud or overreaching by plaintiff or that the parties were both mistaken about the amount owed. There is no evidence that the agreement does not reflect the understanding of the parties. We discern no error, therefore, in the judge's findings or in his decision to use the sum included in that agreement to fix the total amount of arrears.

Nor do we find merit in defendant's challenge to the judge's findings and his conclusions concerning the child's college costs. We defer to his finding that the agreement of the parties about their child's college costs did not obligate plaintiff to reimburse his child for loans taken in her own name. Moreover, we defer to his further finding that, in light of the financial circumstances of the parties, if defendant had sought an order directing plaintiff to pay these costs in advance of the child's decision to secure loans, the judge would have directed that the child would be obligated to repay the loans without contribution from plaintiff. Each of these findings is supported by sufficient credible evidence in the record and is entitled to our deference. See Cesare, supra, 154 N.J. at 411-12; Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

We also reject defendant's argument on appeal that the judge erred in refusing to direct plaintiff to use his inheritance to pay off the child's college loans. The only evidence in the record relating to plaintiff's inheritance is a copy of a will, presumably plaintiff's father's will, that left his estate to plaintiff and his sister. There is no evidence describing the size of the estate or of any sums plaintiff in fact inherited and there is no evidence that the parties discussed plaintiff's obligation to assist funding the child's college studies by use of any inherited funds. The record therefore lacks insufficient evidence to support defendant's claim for this relief.

Finally, although the judge did not separately address the factors relevant to the counsel fee award in connection with the entry of the November 9, 2004 order, we find no ground on which to disturb it. The ultimate decision about whether to award counsel fees rests within the sound discretion of the trial court. See Yueh v. Yueh, 329 N.J. Super. 447, 460 (App. Div. 2000). The record of the decision on the substantive motion demonstrates that the judge was aware of the relevant factors. He commented in particular that the counsel fee award was supported by the fact that plaintiff's failure to pay arrears had made the motion in aid of litigant's rights necessary. Moreover, it is apparent from his award of a reduced sum in place of the requested fee that he took into account defendant's limited success on her motions. In particular, defendant's motion was denied in part as to the quantum of the arrears and was denied nearly in its entirety as it related to the college loans.

 
The record reveals that the judge was also aware of the relative financial circumstances of the parties and the sums that plaintiff himself had expended for counsel fees. While a more thorough explanation of the precise grounds for his award would have been more appropriate, see Williams v. Williams, 59 N.J. 229, 233 (1971); Chestone v. Chestone, 322 N.J. Super. 250, 256 (App. Div. 1999), under the circumstances, the rather terse explanation for the reduced counsel fee award sufficed.

Affirmed.

It is apparent from the transcript of the oral argument that plaintiff filed certifications and documents relating to his financial status that the judge considered but that defendant has omitted from the appendix she filed in support of the appeal in contravention of our rules. See R. 2:6-1(a)(1)(I). Under the circumstances, we will address her arguments on appeal in light of the factual assertions that were made on plaintiff's behalf at the hearing without objection from defendant's attorney.

We presume that this document was in fact submitted to the motion judge for his consideration, but the method of its inclusion in the appendix is unusual. The will simply appears as a document entitled Schedule D at the end of the appendix. Although we would not consider it if it had not been a part of the record, see Middle Dep't Insp. Agency v. Home Ins. Co., 154 N.J. Super. 49, 56 (App. Div. 1977), certif. denied, 76 N.J. 234 (1978), we assume that the judge saw it. We note that defendant's certification referred to the subject of plaintiff's inheritance, and her attorney referred to the will itself during the oral argument on the matter.

(continued)

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A-1813-04T2

February 22, 2006