PHILIP CELLER v. SHARI CELLER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0094-06T50094-06T5

PHILIP CELLER,

Plaintiff-Respondent,

v.

SHARI CELLER,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 11, 2007 - Decided

Before Judges Sapp-Peterson and Messano.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1870-01.

Ansell Zaro Grimm & Aaron, attorneys for appellant (Donna L. Maul, of counsel and on the brief).

Philip Celler, respondent pro se.

PER CURIAM

Defendant Shari Celler appeals from a May 2, 2006, order denying her post-judgment motion to compel her former husband, plaintiff Philip Celler, to pay their son's tuition costs, and the July 25, 2006, order denying her motion for reconsideration. The record reveals that the parties were divorced on March 6, 2002, and pursuant to a dual judgment of divorce and property settlement agreement (PSA) entered the same day, they agreed to share joint custody of their son who was less than three years old at the time.

Pursuant to the PSA, plaintiff was designated the primary custodial parent, however, "[a]ll major decisions concerning the child's . . . education . . . and religious upbringing [were to] be joint and equal decisions." The PSA also provided

13. [Defendant] is contemplating the child going to a private school after his pre-school experience. The parties have been unable to reach an agreement as to the [plaintiff's] obligation to pay all or any part of said private school education. This issue is reserved for further discussion between the parties or further Court Order at the time the situation arises.

. . . .

15. The parties have been unable to agree upon whether or not the [plaintiff] should have any responsibility for the child's Bar Mitzvah. This issue shall be discussed at the time the child is ready for his Bar Mitzvah and if an agreement cannot be reached, either party may make an application to the Court regarding the same.

These two provisions provide the context for defendant's appeal.

In March 2003, the parties filed cross-motions seeking various relief. These applications resulted in the entry of two consent orders that provided, among other things, that 1) payment for "private elementary school [would] not be required by the court but the parties [were] free to confer in the future regarding same;" and 2) that "[b]oth parties [were] . . . ordered to mediate the future issue of the[ir] son['s] attendance at Hebrew School . . . when these issues arise and before any motion is filed."

As contemplated by the PSA, defendant moved to Florida with the child. Plaintiff, meanwhile, remarried and had a son with his second wife. In March 2005, he filed a motion seeking to reduce his child support payments. Defendant responded by filing opposition and a cross-motion seeking, among other things, to compel plaintiff to contribute to their son's private and Hebrew school tuition.

A different Family Part judge heard the applications and entered two orders dated March 18, 2005. He denied plaintiff's request for a downward modification of support, ordered the parties to engage in discovery, and ordered a forensic accountant to audit plaintiff's business. The judge denied defendant's request to have plaintiff pay for their child's private school, "without prejudice," and denied her request to have him pay for Hebrew school.

After the forensic accounting was completed, the parties still could not agree on any appropriate downward modification of plaintiff's support obligations, and further motion practice ensued. Plaintiff again sought a revision and defendant again opposed the application. She also cross-moved for additional relief including the payment of private school and Hebrew school tuition for their son.

Defendant's certification in support of her cross-motion included evaluations from her son's psychologist, Philip J. Lazarus, who diagnosed the child with attention-deficit hyperactivity disorder (ADHD). Lazarus opined that the boy "would profit from a well structured small classroom environment (approximately ten to fifteen students) that is highly organized and where firm behavioral limits are maintained." Lazarus also stated that the private school chosen by defendant would "meet [the child's] academic and behavioral needs." The child's speech pathologist recommended a school placement "sensitive to [his] communication needs" with "minimal communicative and/or interpersonal stress." Defendant argued the needs of her son would not be addressed by the Florida public school system given its average class size. Defendant's cross-motion also sought to have plaintiff pay for their son's attendance at Hebrew school claiming that despite his age -- he was only six -- religious training in anticipation of his bar mitzvah was necessary.

Plaintiff's opposition to the cross-motion noted that these issues were previously decided in 2003 when consent orders were entered, and further argued that defendant had previously extolled the virtues of the Florida school system as a basis for moving their son from New Jersey in the first instance. He also noted that neither of defendant's expert medical providers actually suggested that private school was necessary or even preferable to public school.

As to the issue of Hebrew school, plaintiff's reply noted that his son was still seven years away from his bar mitzvah, and the issue was premature. He also argued that the child was not being raised in "a Jewish environment," and questioned whether Hebrew school was necessary at all.

A hearing on the applications was held before the motion judge on April 28, 2006. In his oral decision, the judge denied defendant's request for payment of private school tuition. He reasoned that the PSA did not require plaintiff to pay for the costs, that the child was doing well in public school, and that the 2003 consent order resolved the question. As to the issue of Hebrew school costs, the judge determined that the 2003 consent order contemplated that the parties would mediate the issue, that no mediation had occurred, and that the issue was "somewhat premature . . . at this time." He entered an order, dated May 2, 2006, granting plaintiff's motion for a downward modification of his support obligations and denying defendant's cross-motion as to both private and Hebrew school tuition "with prejudice."

Defendant moved for reconsideration and argued that the motion judge failed to consider the child psychologist's diagnosis of ADHD which was a "recent change in circumstances." She noted that the child was currently enrolled in a private Hebrew day school with smaller classroom sizes as recommended by two more recent reports from the child's psychologists. Plaintiff opposed the application and reiterated the arguments he made earlier in opposition.

In his July 21, 2006, oral opinion, the motion judge determined that there was no change in circumstance since the prior application was filed. He noted that the child's diagnosed condition was already provided to the court. The judge further concluded that the more recent information provided from the psychologists was available when the first motion was filed, "but was not presented at that time." He concluded that defendant "ha[d] not met the burden for reconsideration of [the] court's prior decision, and therefore her application [was] denied." The judge reached the same conclusion regarding defendant's request that he reconsider the denial of her application for reimbursement of Hebrew school tuition costs. He entered an order to that effect on July 25, 2006, and this appeal ensued.

Defendant raises four points for our consideration.

POINT I

THE COURT ERRED IN FAILING TO RECONSIDER THE MAY 2, 2006 ORDER ON THE ISSUES OF PRIVATE AND HEBREW SCHOOL CONTRIBUTION.

POINT II

THE COURT ERRED IN FAILING TO RECOGNIZE THAT CHILD SUPPORT IS ALWAYS SUBJECT TO REVIEW BASED UPON A CHANGE OF CIRCUMSTANCES.

POINT III

THE COURT ERRED IN FAILING TO APPRECIATE SIGNIFICANT PROBATIVE FACTUAL EVIDENCE REGARDING THE PAYMENT OF THE CHILD'S HEBREW SCHOOL EXPENSES.

POINT IV

AT A MINIMUM THE TRIAL COURT ERRED IN FAILING TO ORDER A PLENARY HEARING.

We have considered these arguments in light of the record and applicable legal standards. We affirm both orders under review. However, with respect to the May 2, 2006, order, we conclude that the denial of the defendant's motion "with prejudice" was inappropriate, and we therefore remand the matter to the motion judge for the entry of an amended order consistent with this decision.

Defendant's first point requires only brief comment. A motion for reconsideration is addressed to the "'sound discretion of the court to be exercised in the interests of justice.'" Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996)(quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). Reconsideration is reserved for "cases that fall into that narrow corridor" where the prior decision was "based upon a palpably incorrect or irrational basis," or failed to consider or appreciate "probative, competent evidence," or where a "litigant wishes to bring new or additional information to the Court's attention which it could not have provided on the first application." D'Atria, supra, 242 N.J. Super. at 401.

Here, the judge did not fail to consider or appreciate any information regarding defendant's son. The diagnosis of his condition was made known to the court at the time of the initial application. In fact, defendant's initial motion sought to seal all of her son's medical and school records that contained any reference to his condition; the judge granted this portion of defendant's application in his May 2, 2006, order.

Nor did defendant present anything new. Despite her characterization of the opinions contained in the later psychological reports, a close reading reveals that none of the medical experts opines that the child must attend a private school for therapeutic reasons. The same lack of any new evidence regarding Hebrew school tuition foreclosed reconsideration on that front. We therefore conclude that the judge's denial of defendant's motion for reconsideration was an appropriate exercise of his discretion and we affirm the July 25, 2006, order.

Turning to the other points raised by defendant, she argues that the trial judge erred in "failing to recognize that child support is always subject to review based upon a change of circumstances." She further contends that although she agreed not to pursue plaintiff's contribution toward private school expenses at the time of the March 21, 2003, consent order, she did not "permanently or irrevocably waive contribution requests in the future."

Defendant correctly points out that child support orders, including orders dealing with the education of children, private or public, are "generally subject to judicial review." Kiken v. Kiken, 149 N.J. 441, 455 (1997). Despite the presence of a PSA, a court should reexamine existing support orders if the movant can establish that there has been a substantial change of circumstances. Lepis v. Lepis, 83 N.J. 139, 157 (1980). Defendant contends that she met this burden by submitting proof of her son's ADHD diagnosis, coupled with the fact that he was now entering primary school. This substantial change in circumstances, she argues, compelled the judge to consider the appropriate factors cited in Hoefers v. Jones, 288 N.J. Super. 590, 611-12 (Ch. Div. 1994), aff'd, 288 N.J. Super. 478 (App. Div. 1996).

We agree with defendant that neither the PSA nor the 2003 consent order forever barred reconsideration of the issue. We part company, therefore, with the motion judge to the extent he concluded otherwise. Nevertheless, we affirm his order for a different reason. See Home Properties of New York, L.P. v. Ocino, Inc., 341 N.J. Super. 604, 616 (App. Div. 2001)(affirming trial judge's decision for different reasons than those expressed in his opinion).

Defendant's motion failed to demonstrate by any measure that her son's educational needs as a child with ADHD would not be met by the Florida public schools. While the psychological reports expressed a preference for small class sizes, and defendant certified as to the average class size in the public school district, there was no evidence to support a conclusion that the public school would not accommodate her son's special needs. Therefore, while there may have been a demonstration of a change of circumstances, defendant failed to prove private schooling was necessary, or, indeed, preferable to public schooling. In short, the PSA expressly noted defendant's contemplation of her son's future enrollment in private school. The proof in support of her application was essentially nothing more than an expression of her personal desire to have this occur.

We therefore affirm that portion of the May 2, 2006, order denying the request to compel plaintiff to pay for all or a portion of the his son's private school tuition. However, because, as noted above, the issue is always subject to review, the denial should not have been "with prejudice." We remand the matter to the motion judge for the entry of an appropriate amended order.

Defendant's next point regarding the denial of her application for payment or reimbursement of Hebrew school tuition costs may also be disposed of with brief comment. She contends the trial judge adopted factual findings without the benefit of any testimony, specifically concluding that defendant was not raising the child in the Jewish faith.

This argument misstates the basis of the motion judge's decision. The judge determined that the 2003 consent orders required the parties to mediate any dispute regarding this issue before any motion was made, and, since defendant failed to assert that she attempted mediation, the motion was "premature."

We agree with the motion judge's conclusion. Our Supreme Court has stated, "[W]hile settlement is an encouraged mode of resolving cases generally, 'the use of consensual agreements to resolve marital controversies' is particularly favored in divorce matters." Weishaus v. Weishaus, 180 N.J. 131, 143 (2004)(quoting Konzelman v. Konzelman, 158 N.J. 185, 193 (1999)). "[F]air and definitive arrangements arrived at by mutual consent should not be unnecessarily or lightly disturbed." Smith v. Smith, 72 N.J. 350, 358 (1977).

Here, defendant failed to demonstrate her compliance with the consensual agreement she reached with plaintiff less than three years earlier. She presented no reason that would otherwise cause the motion judge to set aside the fair and reasonable process for dispute resolution envisioned by the consent order.

These circumstances, however, may change. Therefore, we fail to discern the motion judge's reason for denying this requested relief "with prejudice." We affirm the order under review, but remand the matter to the judge for the entry of an appropriate amended order.

Lastly, defendant contends the motion judge should have ordered a plenary hearing because of material factual disputes in the certifications that supported or opposed the various applications. Defendant argues these "genuine issues of material fact as to the plaintiff's income and assets . . . including the potential for payment of private school and Hebrew school" should not have been resolved without testimony.

Since defendant's reply brief makes clear that she seeks review of the motion judge's orders as to "the private and Hebrew school issues only," and since the judge did not consider the financial circumstances of the parties in deciding those two issues, we fail to see why a plenary hearing was necessary. While the financial circumstances of plaintiff were vigorously contested on both sides, the motion judge resolved any factual disputes on the issue and ordered a downward modification of support obligations. Defendant has not appealed from that portion of the May 2, 2006, order. In short, on the two issues that are the subject to this appeal, defendant failed to make a prima facie showing of entitlement to relief, and therefore a plenary hearing was not necessary. Lepis, supra, 83 N.J. at 157; Hallberg v. Hallberg, 113 N.J. Super. 205, 208 (App. Div. 1971).

Affirmed. The matter is remanded for the entry of modified orders consistent with this opinion.

We have not been supplied with the transcript of this hearing or the court's decision.

By this time, another child was born to plaintiff and his second wife.

Plaintiff also filed a motion for reconsideration of the May 2, 2006, order arguing the judge erred in the recalculation of his support obligations. That request was denied by order of June 19, 2006. Though defendant's reply brief argues this order should be vacated, we fail to discern any basis for our review since it denied plaintiff's requested relief.

These factors are: () [a]bility of non-custodial parent to pay; (2)[p]ast attendance of one or both parents at that or a similar private shcool; (3) [w]hether children were attending private school pre or post divorce; (4) [p]rior agreement of non-custodial parent to pay or send children to private school; (5) [r]eligious background of the parties and their children; (6)[a]re special educational, psychological and/or special needs of child met, advanced by such private schooling?; (7) is the academic environment in child's best interest?; (8) [w]hether court order or agreement of parties prefers specific right of school choice on residential custodial parent; (9) [w]ere actions of residential custodial parent to enroll or to continue to enroll the children reasonable under the circumstances?; (10) [i]s such private school tuition permitted or authorized as part of that state's child support guidelines, or by other law[s]?; (11) [a]bility of child to respond, prosper from this educational experience; (12) [l]ack of present, past non-custodial parental involvement in children's education; (13) [d]egree of involvement of custodial parent in children's education; (14) [i]s residential custodial parent's view desires consistent with past practices regarding private school education?" Ibid.

(continued)

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A-0094-06T5

October 5, 2007