MIA M. VOLPA n/k/a MIA M. WERNEGA v. EDWARD J. VOLPA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6402-04T36402-04T3

MIA M. VOLPA n/k/a

MIA M. WERNEGA,

Plaintiff-Respondent/

Cross-Appellant,

v.

EDWARD J. VOLPA,

Defendant-Appellant/

Cross-Respondent.

____________________________

 

Submitted May 16, 2006 - Decided June 2, 2006

Before Judges Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, FM-08-844-94.

Paul H. Scull, Jr., attorney for appellant.

Mia M. Wernega, respondent pro se.

PER CURIAM

This case concerns post-judgment matrimonial motions. Defendant Edward Volpa appeals and plaintiff Mia Volpa cross-appeals from an order entered by Judge Testa on June 24, 2005. We affirm.

I

The parties were divorced on October 3, 1994. They have two children, a daughter born in 1991 and a son born in 1993. On March 2, 2001, the parties entered into a consent order modifying their original property settlement agreement with respect to child support and other financial issues.

In the consent order, Edward agreed to pay $500 per week in child support, which would include his "full contribution toward any and all day care expenses" of $140 per week. The parties agreed that when the children ceased attending day care, Edward's child support obligation would be reduced by fifty dollars per week. The parties also defined the circumstances in which they each might seek an upward or downward modification in child support, by agreeing that unless Edward's gross income exceeded $135,000, Mia could not seek an increase in support, and Edward could not seek a decrease in his support obligation unless his gross income was less than $90,000 per year. The consent order also specified a formula by which gross income was to be calculated. The consent order also specified the amounts and percentages they would each pay toward the children's medical, psychological and dental bills. Both parties waived their right to spousal support.

In May 2005, Mia filed a motion seeking a panoply of relief: a review of child support; to require Edward to provide health insurance for the children; to require him to pay 100% of any uncovered medical expenses as a result of an alleged "gap" in their medical coverage; to require him to reimburse her for medical expenses incurred in 2003 and 2005 as a result of this alleged gap in coverage; to require Edward to pay his share of the children's orthodontic care; to require Edward to promptly pay Mia for unreimbursed medical expenses; and to require him to pay Mia $356 for medical expenses for 2004. She also sought counsel fees.

In June 2005, Edward filed opposition and a cross-motion, seeking $10,400 in reimbursement "for the overpayment of day care expenses for the years 2002, 2003, and 2004." He also asked that Mia pay $150 for day care expenses that she had not actually incurred, and that Mia henceforth pay 50% of the children's medical expenses instead of the 20% she was required to pay under the consent order. He also sought counsel fees.

In written findings incorporated in his June 24, 2005 order, Judge Testa denied Mia's motion to review child support; he found that Edward's income for 2004 was $132,538, and that under the consent order the parties agreed that Mia would not seek an increase in child support unless Edward's income was over $135,000. He also found as fact that there was no "gap" in medical coverage for the children. Based on proof supplied by Edward he found that the children's previous medical coverage ended on March 31, 2005, but they were immediately covered by COBRA as of April 1, 2005. He also concluded that the children had medical coverage in 2003 and that Mia had not provided "any proof of the uncovered medical expenses." He also concluded that Mia's claims for medical expenses for 2003 were barred by the doctrine of laches.

With respect to orthodontic expenses, he ordered Edward to pay any expenses that the orthodontist documented in writing as being medically necessary. He also ordered Edward to promptly pay his share of the children's future unreimbursed medical expenses, provided Mia gave him prompt notice of those expenses. This applied to past expenses for 2004 as well; Edward was to pay his eighty percent provided Mia promptly provided proof of those expenses. He denied Mia's application for counsel fees.

Judge Testa denied Edward's application for reimbursement of alleged overpayments for child care expenses for 2002, 2003 and 2004. He found these claims barred by laches. But he confirmed that defendant's child care obligation was $450 per week as of June 20, 2005. He also denied Edward's application to increase Mia's share of the medical expenses to 50%. He granted Edward $750 in counsel fees, because "several of [p]laintiff's requests were frivolous as [d]efendant clearly had medical coverage for the children since April 1, 2005," and because the consent order provided that under some circumstances the losing party in an application to increase child support would pay counsel fees.

II

On this appeal, Edward raises the following issue:

POINT I: THE TRIAL COURT ERRED IN [ITS] DETERMINATION THAT THE DOCTRINE OF LACHES APPLIED TO PLAINTIFF'S APPLICATION AND THAT THE SUPPORT COULD NOT BE RETROACTIVELY MODIFIED BY FAILING TO MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW BASED ON THESE FACTS PURSUANT TO N.J. COURT RULE 1:7-4, AND BY FAILING TO FIND THAT NO DUTY TO PAY DAY CARE EXISTED PURSUANT TO THE PARTIES' AGREEMENT, AS OF APRIL 2001.

Mia raises the following issues on her cross appeal:

POINT I: THE TRIAL COURT ABUSED ITS DEISCRETION BY DENYING PLAINTIFF'S REQUEST FOR REVIEW OF CHILD SUPPORT AND SHOULD BE REVERSED AND REMANDED FOR A COMPLETE AND ACCURATE ASSESSMENT OF ALL PERTINENT INFORMATION PURSUANT TO STATE LAW.

A. ALL CHILD SUPPORT OBLIGATIONS SHOULD BE DETERMINED PURSUANT TO NEW JERSEY LAW.

B. THE CONSENT ORDER DATED MARCH 2, 2001 IS NOT ENFORCEABLE. PLAINTIFF CANNOT WAIVE HER CHILDREN'S RIGHT TO CHILD SUPPORT.

C. ALL ORDERS FOR CHILD SUPPORT SHALL BE REVIEWED EVERY TWO YEARS TO REFLECT THE COST OF LIVING. ALL CHILD SUPPORT ORDERS ARE SUBJECT TO REVIEW FROM TIME TO TIME REGARDLESS OF CHANGE OF CIRCUMSTANCES.

POINT II: THE COURT ERRED BY NOT ORDERING THE CORRECT FULL AMOUNT DUE TO BE PAID TO PLAINTIFF FOR UNINSURED/UNREIMBURSED MEDICAL EXPENSES.

POINT III: THE TRIAL COURT ERRED BY AWARDING [DEFENDANT] ATTORNEY'S FEES WITHOUT PROPERLY CONSIDERING N.J.S.A. 2A:34-23A.

POINT IV: THE EQUITABLE DOCTRINE OF CLEAN HANDS SHOULD BE APPLIED TO DEFENDANT AND BAR ANY RELIEF DEFENDANT SOUGHT BELOW.

POINT V: THE TRIAL COURT CORRECTLY APPLIED THE DOCTRINE OF LACHES TO DEFENDANT'S APPLICATION FOR REIMBURSEMENT OF ALLEGED OVERPAYMENT OF CHILD SUPPORT.

POINT VI: DEFENDANT HAS A CONTINUING DUTY TO SUPPORT HIS MINOR CHILDREN.

Having reviewed the record, we conclude that Judge Testa's decision is supported by substantial credible evidence, is consistent with applicable law, and must therefore be affirmed. R. 2:11-3(e)(1)(A); Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, except as discussed below, the parties' contentions in support of their appeal and cross-appeal, respectively, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.

On his appeal, Edward challenges Judge Testa's decision denying his application for reimbursement for overpayments of child care expenses. Edward contended that he contacted Probation in 2002 and asked that his support obligation be modified to reflect the absence of child care expenses. Mia contends that he continued to voluntarily pay her the additional $50 per week because he knew she was unemployed and needed the money. We agree with Judge Testa's determination that Edward's claim was barred by laches. We find inapt Edward's analogy to the termination of a child support obligation upon the child's emancipation. Nor does this case involve a party seeking to cancel child support arrearages. Hence, his reliance on Mahoney v. Pennell, 285 N.J. Super. 638 (App. Div. 1995), and Thorsen v. Thorsen, 241 N.J. Super. 10 (Ch. Div. 1989), is misplaced.

In a different context, the Supreme Court recently held that an emancipated child seeking college expenses from a divorced parent should do so before the expense is incurred rather than years later. Gac v. Gac, ___ N.J. ___ (2006). While the case was not decided on laches grounds, the same concept is applicable here. Divorced parents need to be able to plan their finances with some degree of certainty. It is fundamentally unfair for a party who believes he or she is overpaying child support to wait years before asking for reimbursement.

We likewise find no merit in Mia's cross-appeal. At oral argument, her attorney conceded that there was no gap in medical coverage for the children (as she stated, "now we know there was insurance."). She argued only that her client should be provided with insurance cards. Further, Judge Testa's order provided a mechanism for Mia to obtain reimbursement of medical expenses by promptly providing Edward proof of those expenses. If Edward does not comply with the June 24, 2005 order, Mia may file a motion with the trial court to enforce the order.

In her arguments concerning child support, Mia appears to be rearguing issues decided in earlier proceedings going back to 2000. Such arguments are untimely. Further, the record reflects that Probation did conduct a review of child support on February 8, 2005. And based on our review of the record documents provided to us, none of Mia's motion submissions would have enabled the trial judge to conclude that there had been a change of circumstances since the 2001 consent order. See Lepis v. Lepis, 83 N.J. 139 (1980).

Affirmed.

 

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A-6402-04T3

June 2, 2006