HUGH McCLUSKEY v. DIANE ROMANO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0289-06T10289-06T1

HUGH McCLUSKEY,

Plaintiff-Respondent,

v.

DIANE ROMANO,

Defendant-Appellant.

_______________________________________

 

Argued September 11, 2007 - Decided

Before Judges Fuentes, Grall and Chambers.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Morris County,

Docket No. FM-14-0811-01.

Lori A. Patrick argued the cause for appellant

(Coughlin Duffy, attorneys; Ms. Patrick, of counsel

and on the brief).

Alice M. Plastoris argued the cause for respondent.

PER CURIAM

Defendant Diane Romano (f/k/a McCluskey) appeals from the order of the Family Part denying her post-judgment motion seeking: (1) a modification of the terms of the Property Settlement Agreement (PSA), thereby increasing plaintiff's child support obligation; and (2) imputing additional income to plaintiff based on his alleged intentional underemployment. Defendant also appeals the court's order granting plaintiff's cross-motion for overnight parenting time with the parties' sixteen-year-old daughter.

After reviewing the record before us, and in light of prevailing standards of review, we reverse the court's order and remand this matter for further proceedings consistent with this opinion. We derive the following facts from the limited record developed before the motion judge.

The parties were married on February 1, 1987, and divorced on December 20, 2002. They had three children, Michael born in 1987, Matthew born in 1988 and Alexis born in 1991. With respect to the children's post-secondary education, the PSA provided as follows:

COLLEGE EXPENSE. The parties agree that it would be in the best interest of the children to obtain a college level education. If the children desire to attend college and have the ability, the parties agree that they will support the college education of the children financially based upon the level of financial commitment which would be necessary to send a child to Rutgers State University, room, board, tuition and books. It is anticipated that the children will contribute to the degree that they can by their work effort, scholarship applications and by processing and completing such student applications for assistance and loans as may be available. The parties shall contribute to the college education costs of the children based upon an allocation determined by the ratio of their respective available incomes to the total available income of both parties. (Emphasis added.)

Notwithstanding this provision, defendant averred that both she and plaintiff encouraged their sons "to attend the best college to which each was admitted." Without identifying whether she was present during these discussions, defendant certified that the boys discussed their intention to apply to the "highest academically ranked school to which each could GET admitted" with their father during their high school years. According to defendant, plaintiff "encouraged" the boys to do so.

In the certification in support of her motion before the Family Part, defendant states that Michael "informed" her that when he advised his father he wanted to attend Georgetown University, plaintiff reacted positively to the news, and even boasted to his friends that his son would be attending Georgetown.

Michael was admitted to Georgetown and has completed his first year of studies. According to defendant, plaintiff kept in contact with his son during this time period, and paid $10,500 for the fall semester, and $12,000 for the spring semester, to offset Michael's total freshman year "college expense of $45,000." Defendant did not pay any part of Michael's college expenses. In fact, defendant claims that she is "currently unable assist in the payment of Georgetown tuition."

Defendant makes a similar claim with respect to Matthew, and his decision to attend Boston College. According to defendant, Boston College was "the highest academically ranked school to which [Matthew] has been admitted. . ." Matthew formally enrolled as a freshman in the fall of 2006 with annual semester expenses of $22,496. The only funds available to Matthew was a $3,750 per semester academic scholarship, leaving an unfunded expense of $18,746.

Plaintiff submitted a certification in opposition to defendant's motion and in support of his own cross-motion seeking parenting time with his minor daughter. In this certification, plaintiff denied ever promising his two sons that he would assume financial responsibility for college expenses beyond the "Rutgers benchmark" identified in the PSA. By contrast, plaintiff claims that he "repeatedly" asked his sons to apply to Rutgers or other "public state operated college or university." Plaintiff also alleges that he was not included in any discussions involving what colleges his sons should attend.

In denying defendant's motion, the trial court found "no basis to modify the agreement between the parties as to payment of college expenses." This finding is not supported by the record. Confronted by irreconcilable factual contentions, it was incumbent upon the motion judge to conduct an evidentiary hearing where the credibility of the parties could be probed and tested through the rigors of cross-examination. Johnson v. Johnson, 390 N.J. Super. 261, 274 (App. Div. 2006).

Under these circumstances, strict enforcement of the literal terms of the PSA may not be warranted. Defendant's allegations concerning plaintiff's conduct created a sufficient basis for the court to consider whether plaintiff should be precluded from repudiating an alleged promise to pay college expenses in excess of the "Rutgers benchmark" identified in the PSA, provided he is financially able to do so. Trinity Church v. Atkin Olshin Lawson-Bell, 394 N.J. Super. 159, 171 (App. Div. 2007).

We will next address the trial court's decision to grant plaintiff's motion seeking enforcement of his right to overnight parenting time with his sixteen-year-old daughter. Under the PSA, plaintiff has the right to have overnight parenting time on "alternating weekends beginning Friday evening after work hours ending on Sunday evening after dinner."

In resisting plaintiff's motion, defendant alleged that plaintiff has a chronic alcohol problem, which at times has prevented him from exercising proper supervision of his children. Specifically, defendant referred to numerous incidents in which plaintiff was visibly intoxicated in the presence of his daughter, causing her great fear and distress. According to defendant, plaintiff's unaddressed alcoholism has caused him to miss past scheduled parenting time dates, causing a general estrangement from his daughter.

Without the benefit of a fact-finding hearing, and without interviewing the teenage child at issue here, the court summarily rejected defendant's claims and ordered that plaintiff have "parenting time with the parties' daughter as per the Property Settlement Agreement." In a seemingly implicit attempt at ameliorating defendant's concerns, the court further ordered that "[p]laintiff shall refrain from using alcohol during his parenting time." Despite this directive, the motion judge concluded that defendant had failed to present sufficient evidence to warrant having an evidentiary hearing.

We again disagree. Confronted with defendant's claims of plaintiff's uncontrolled alcoholism, it was incumbent upon the court to conduct a hearing in which these claims can be explored. Here, given the child's age, it is critically important for the judge to interview the child directly, in an effort to ascertain what her concerns and desires are with respect to establishing or reestablishing a parent/child relationship with her father. No court order is going to magically transform a recalcitrant teenager into a cooperative child; no judicial directive can repair the emotional damage caused by parental noninvolvement. In adjudicating a motion seeking enforcement of a parenting time agreement, it is absolutely necessary for the Family Part judge to carefully consider the wishes of the child in question, in those cases where the child is of a sufficient age to express her or his views on the matter.

The remaining issue raised by the parties, (whether plaintiff's child support obligation, independent of college expenses, should be modified), must also be explored in the context of an evidentiary hearing.

Reversed and remanded.

 

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A-0289-06T1

October 5, 2007