KATHLEEN L. OLIVER v. BRIAN S. OLIVER

 

 
NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0903-05T50903-05T5

KATHLEEN L. OLIVER,

(now known as KATHLEEN L. GABRIEL),

Plaintiff-Respondent,

v.

BRIAN S. OLIVER,

Defendant-Appellant.

_____________________________________

 

Argued January 10, 2007 - Decided March 21, 2007

Before Judges Winkelstein and Fuentes.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Essex County, Docket No. FM-11960-92.

Irving Tobin argued the cause for appellant

(Gluck & Tobin, attorneys; Mr. Tobin, on the

brief).

Moira E. Colquhoun argued the cause for

respondent (Colquhoun & Colquhoun, attorneys;

Ms. Colquhoun, on the brief).

PER CURIAM

This is an appeal from the Family Part's denial of a post-judgment matrimonial motion. Defendant Brian Oliver moved to convert a custodial account, created by the parties at the time of their divorce to pay for their two children's college education, into a "trust account." The trial court also increased defendant's child support obligation to reflect additional expenses mainly attributable to the passage of time. In so doing, the court imputed income to plaintiff for her part-time work as a waitress, and denied defendant's request to consider the funds available in the educational custodial account. We affirm.

We will first address the issue of the custodial account. The parties were divorced on February 15, 1994. There were two children born of the marriage, two boys now ages twenty-two and sixteen. A property settlement agreement (PSA), negotiated by the parties was incorporated as part of the final judgment of the divorce. Under the PSA, plaintiff retained physical custody of both boys. Article 10 of the PSA created a custodial account for the benefit of the children. The specific provision in the PSA reads as follows:

There is currently in existence a custodial account, at Horizon Bank, in the name of the Wife, for the benefit of the parties oldest son, Devon. Both parties agree to execute all documents that may be required, to convert this custodial account to an account, in each of their names, as custodians for the benefit of the two children born of the marriage. The account currently has an [sic] value of approximately $66,000.00.

The parties agree that this account shall be earmarked specifically as an educational fund for the two infant children born of the marriage, and that any withdrawals on that account, shall be made for that purposes [sic], and shall require the signature of both parties.

Both parties further agree that said custodial account may be invaded, in the event that there is an extreme emergency requiring funds for the care, comfort, and maintenance of either of the children. In the event there is a disagreement between the parties as to the necessity of an invasion, an application may be made to the Court to invade these funds for the benefit of the children.

In the event either or both children do not attend college or other school of higher learning above the level of High School (for which this fund may also be used) and there are funds remaining in this custodial account, after the completion of college or other school of higher learning above the level of High School, or if one or both children do not choose to avail themselves with a higher education, then, in any of these events, all sums remaining in this custodial account, shall be divided equally and distributed one-half to the Wife and one-half to the Husband.

Defendant now argues that this account should be denoted a "trust account" to prevent the eldest child, who is now over the age of twenty-one, from claiming his share of the funds for a purpose other than defraying his educational expenses. The motion judge rejected this argument, declining to re-write an otherwise clearly worded statement of the parties' intent at the time the PSA was signed. We agree.

First, we note that defendant's apprehensions about what his oldest son might do after having reached the age of majority are purely speculative. The record is devoid of any evidence that this child has made any overtures toward accessing the funds in the account for any unauthorized purpose. Second, the wording in the agreement is straightforward and unambiguous. As such, we see no basis to modify it. See Larbig v. Larbig, 384 N.J. Super. 17, 26 (App. Div. 2006).

With respect to the modifications in child support ordered by the court, and the imputation of income to plaintiff, we discern no legal error in Judge Sivilli's analysis and conclusions, and thus affirm substantially for the reasons she expressed in her oral opinions dated June 10, 2005, and September 15, 2005. Plaintiff is employed as a part-time waitress. She suffers from multiple sclerosis and epilepsy. The $200 weekly child support established as part of the judgment of divorce had not been modified or otherwise indexed for inflation since 1994. Thus, based only on the passage of time, plaintiff presented a sufficient basis to seek an increase in support. Defendant's argument, seeking to terminate his child support obligation to the eldest child because he was attending college, lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(1)(E).

Finally, we are in complete agreement with Judge Sivilli that plaintiff's ill-health should be considered as a factor in imputing income to her, because it directly affects the number of hours she could reasonably be expected to work as a waitress.

Affirmed.

 

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A-0903-05T5

March 21, 2007