CHERYL SMITH,(n/k/a MUNROE) v. GREGORY G. SMITH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6438-05T36438-05T3

CHERYL SMITH,

(n/k/a MUNROE),

Plaintiff-Respondent,

v.

GREGORY G. SMITH,

Defendant-Appellant.

_________________________________

 

Argued May 31, 2007 - Decided June 22, 2007

Before Judges Sabatino and Lyons.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FM-07-891-96.

Gregory G. Smith, appellant, argued the cause pro se.

Joseph C. Nuzzo argued the cause for respondent.

PER CURIAM

Defendant, Gregory G. Smith ("father"), appeals a May 8, 2006 order of the Family Part concerning child support and college expenses, and the Family Part's subsequent July 24, 2006 order denying him reconsideration and also awarding counsel fees to his ex-wife, defendant Cheryl Smith ("mother"). We affirm, without prejudice to future applications in the Family Part that may be justified because of any sufficiently changed circumstances.

The parties were married in February 1984. Their marriage produced two children, a daughter born July 15, 1984 and a son born June 5, 1987. The parties were divorced on November 10, 1997. Pursuant to the agreed-upon final judgment of divorce (FJD) the mother retained residential custody of the children. As part of the divorce settlement, the father agreed to pay the mother $320 per month in child support, plus half of the children's reasonable medical, dental and clothing expenses. The FJD did not address the parties' future obligations for the children's higher education.

The father moved to New York in the mid-1990's, where he has since been engaged in the private practice of law. He remarried in November 2003. His present wife is a physician. The two of them have a child that was born on May 16, 2006.

Meanwhile, the mother remained in New Jersey. She has ceased working as the result of severe health problems, having been diagnosed with chronic and end-stage renal disease, chronic heart failure, asthma, hypertension and other debilitating conditions. She is dependent upon three weekly dialysis treatments to survive. In October 2000 the Social Security Administration declared the mother totally disabled and unable to hold a full-time job over any extended period of time. At the time the motions now on review were decided, the mother was subsisting on Social Security disability payments of $1,114 per month, plus child support from the father which the Family Part had increased in April 2004 to $353.50 per week because of her disability.

The parties' two children have presented challenges. The daughter had a child as a teenager, although she was nonetheless able to pursue some college studies thereafter at Rutgers University. The father was ordered in April 2004 to pay eighty-three percent of the daughter's unfunded college expenses at Rutgers. The son has had numerous academic and behavioral difficulties, which we need not detail at length in this opinion. He temporarily attended a military academy before his senior year, after which he resumed and completed high school.

The son enrolled, without prior consultation with his father, at Howard University in the fall of 2005. The mother then forwarded to the father the son's tuition bill and demanded that he pay it. Without waiving his rights, the father deposited a $5000.00 lump sum into the mother's Probation account, intending those monies to be used towards the son's tuition. After his first semester at Howard, the son was placed on academic probation because of failing grades, making him temporarily ineligible for financial aid.

As time progressed, the father fell behind in his financial obligations to the mother. He contends that he sustained a downturn in his law practice and that he could not afford the combined burdens of funding both the $353.50 weekly child support payments as well as college expenses for his children. He also asserts that his children have not maintained adequate communication with him and, in particular, that he has not been timely consulted about his son's academic circumstances.

In November 2005 the mother filed a motion to increase support, and also to compel the father to pay for all of the son's unfunded college expenses. The father filed a cross-motion opposing that relief, and seeking, among other things, a downward reduction in child support to reflect his financial contributions towards the college expenses. The father also sought to emancipate both children. As part of his contentions, the father asserted that his law practice recently had become less profitable because of various factors, including his removal from the list of designated counsel for appointment in federal criminal cases.

After efforts over several months to attempt to settle the parties' disputes failed, the Family Part heard argument on May 2, 2006. Both parties were then represented by counsel. Judge James Troiano considered numerous certifications submitted on the mother's motion and the father's cross-motion, including financial data and tax returns. The judge declined the father's request for a plenary hearing, observing the absence of "any significant factual issue that would necessitate" the presentation of live testimony.

After considering the parties' submissions and arguments, Judge Troiano issued an oral ruling on May 8, 2006. Among other things, the ruling declared the parties' daughter emancipated, but found that the son, who continued to reside with his mother when not at school, was still unemancipated. The judge held that the father should pay $330.66 weekly in child support to the mother. The judge further held that the father should be responsible for the son's unfunded college tuition, but only after the son applied for all applicable loans, grants and scholarships. The judge reserved on the mother's application for counsel fees.

In reaching his decision on these motions, Judge Troiano observed, among other things, that the mother had no significant assets or income, and that she was living "barely above poverty level." The judge specifically noted that the mother's monthly expenses for shelter, transportation, food and other needs, totaling $2,535.83 on her updated Case Information Statement (CIS) filed with the motion papers, were "extraordinarily minimal." The judge noted that when the mother's $1,114 in Social Security benefits were subtracted out, her monthly shortfall was $1421.83. The judge divided that figure by 4.3 weeks per month, yielding $330.66, a sum which the judge found "is needed by her on a weekly basis to be able to survive in the location that she is in and to provide a home for [the son] when he is there four or five months out of the year."

As to the father, the judge noted that in 2005 he had $78,000 in gross income earned as an attorney, plus $12,000 in unearned income. The judge also noted that the father had made approximately $20,000 in charitable donations in the preceding year, suggesting that the father had a significant degree of discretion in the disposition of his income. The judge also noted that the father was presently married to a practicing physician, and that they were living in a condominium in New York City and sharing household expenses.

Presented with these difficult circumstances, and explicitly recognizing that both parties had filed their respective motions in good faith, Judge Troiano determined that the mother was financially unable to contribute to her son's college tuition, and that the father should necessarily bear the full costs of the unfunded portion of the son's college tuition. However, the judge stressed that it is the son's "obligation" to apply "for all necessary forms of financial aid." The judge also determined that the mother, because of her documented medical disabilities and her continued caretaking responsibilities for her son, was entitled to more than the $231 in weekly child support that would be called for under the State's Child Support Guidelines. The judge instead determined that the husband should pay $330.66 weekly, to fill the gap between the mother's Social Security benefits and her basic subsistence needs.

The judge also determined, because of the parties' disparate financial circumstances, that the mother was entitled to a counsel fee award for the motion practice. However, the judge reserved decision on the amount of fees pending the submission of certification from the mother's attorney clarifying whether he had been retained on an invoiced basis or a pro bono basis.

The father moved for reconsideration of the May 8, 2006 order. His motion contended, among other things, that the judge should have reduced child support to the Guidelines level of $231 per week. He further argued that the court should have made the father's obligations to fund the son's college expenses expressly contingent on the son timely communicating his financial and academic status to his father, and maintaining a "C" grade-point average. The mother opposed the reconsideration motion, with her attorney furnishing a certification confirming that he had been retained on an invoiced, not a pro bono, basis, and attesting to accrued fees and expenses of $5,413.25.

On July 20, 2006, Judge Troiano issued a written decision denying the father's motion for reconsideration, noting that the motion did not satisfy the requirements of R. 4:50-1. In particular, the judge observed that there was no "newly discovered evidence to change the outcome;" no demonstration of "mistake, inadvertence, surprise, or excusable neglect;" nor any "fraud, misrepresentation, or misconduct on the part of the adversary." As to the previously-reserved question of the mother's counsel fees, the judge noted that he was satisfied by her attorney's certification that the attorney had not been engaged on a pro bono basis. Noting the mother's inability to pay the counsel fees occasioned by her need for judicial enforcement, the judge ordered those fees to be paid by the husband, but reduced the sum to $5000.00.

This appeal ensued, in which the husband argues that (1) the judge should have conducted a plenary hearing in May 2006 on the motion and cross-motion; and (2) the judge abused his discretion in awarding the mother counsel fees in July 2006.

With respect to the husband's demand for a plenary hearing, we are satisfied that no such evidentiary proceedings were necessary to resolve the discrete matters presented to the Family Part in May 2006. Although disputes in the Family Part often do raise material and genuine factual issues that are not amenable to disposition without live testimony and associated credibility assessments, a plenary hearing is not required on all contested post-judgment motions. Barblock v. Barblock, 383 N.J. Super. 114, 123 (App. Div.), certif. denied, 187 N.J. 81 (2006) (noting that "Family Part judges must also bear in mind the costs, both financial and personal, that the litigants will incur in preparing for and participating in such [plenary] hearings").

Here, there were no genuine and consequential issues of material fact that required live testimony from the father, the mother and one or both of their children, in order for the judge to decide the pending motions. The mother's documented serious medical conditions are not disputed. As the father acknowledged before us, the mother lacks the financial wherewithal to fund the son's college costs. The father also does not dispute that the mother singularly provides the son with food and shelter when he is not away at school. It is obvious that the father is the sole financial provider, and is the only parent who realistically can subsidize the son's college costs.

The father's certifications in the Family Part sadly detailed a history of alienation and non-communication between him and his son. His certifications also recounted his son's past behavioral and academic problems, and his son's failures to pursue financial aid in a timely manner. The father also noted his son's continued refusal to initiate contact with him. None of those assertions were rejected by the motion judge. To the contrary, the judge appears to have been fully aware of these contentions, but nevertheless determined that the father must pay for the son's unfunded college expenses. However, the court recognized that the son must follow through on applying for all available financial aid. The judge also specifically required both parties, including the mother, to cooperate and assist in the application process for such aid.

We are mindful that a child's alienation from, and non-communication with, a parent is one of many factors that bear upon the determination of a parent's financial obligations for a child's college costs. See Gac v. Gac, 186 N.J. 535, 542-44 (2006); Newburgh v. Arrigo, 88 N.J. 529, 545 (1982). However, in these particular circumstances, we are satisfied that the judge's conclusion that the father shall provide the sole parental support for his son's higher education costs was justified by the record facts, at least for the academic years in question.

Nor are we persuaded that a plenary hearing was needed on the child support issue. The court actually reduced the father's monthly obligations slightly, from the prior level of $353.30 per week to $330.66 per week. That payment is clearly justified to fill the gap between the mother's governmental assistance and her modest household budgetary needs as the son's sole caretaker. Because the son is above the age of eighteen, the Child Support Guidelines do not specifically apply. See Child Support Guidelines, Pressler, Current New Jersey Court Rules, Appendix IXA to R. 5:6A at 2234-35 (2007). The father stresses that his earnings as an attorney have decreased in recent years, but such a potentially short-term diminution in earnings does not automatically warrant an adjustment in child support or qualify as a change in circumstances under Lepis v. Lepis, 83 N.J. 139 (1980). See also Innes v. Innes, 117 N.J. 496, 504 (1990).

Although we appreciate that the combined burdens of child support and college tuition on the father are not insubstantial, we are unpersuaded that the judge's factual determination of the father's ability to pay lacks support in the proofs. The father has demonstrated the capacity to earn close to, or even in excess of, a six-figure income as a professional, and he managed to make over $20,000 in discretionary charitable gifts in the calendar year before the mother's motion was filed. Also, even though we do not perceive that the father leads a lavish lifestyle, his living expenses are undoubtedly defrayed in part by living with another professional spouse.

In sum, given our deferential standard of review of factual determinations in Family Part matters, see Cesare v. Cesare, 154 N.J. 394, 413 (1998), we affirm the child support and college funding orders entered on May 8, 2006, as they are supported by adequate, substantial and credible proofs. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974).

We also are satisfied that the Family Part equitably awarded a reduced sum of reasonable counsel fees to the mother. She indisputably lacks the means to pay for her own representation in litigation with her ex-husband, who is himself a lawyer. The judge had ample reason to find that she had acted in good faith in coming to court to have support arrears paid and her son's unreimbursed college costs satisfied. See Williams v. Williams, 59 N.J. 229 (1971). We reject the husband's contention that the fee award was unreasonable or unjustified. Lastly, we affirm the Family Part's denial of the father's motion for reconsideration, which did not present any evidence that the father could not have produced on the original motions, and did not establish that the judge had overlooked or misapplied controlling legal authority. See R. 4:49-2; Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996).

We do observe, however, that our disposition of this appeal is without prejudice to any future applications that may be heard in the Family Part based upon events and circumstances ensuing after July 2006 when the last order on review was issued. We were advised at oral argument that the mother has a unheard motion for enforcement pending in the Family Part. We understand that the father may wish to pursue relief in a cross-motion based upon more recent developments.

We also note our perception that a considerable source of ongoing tension and conflict within this family stems from communication failures, particularly with respect to their son. Both sides indicated to us at oral argument that they are willing to pursue family counseling that may aid in repairing some of their damaged relationships and in restoring lines of constructive communication. We urge the parties to follow through on their represented commitment to seek such counseling, and to encourage their son, who, of course, is not a party to these proceedings, to participate in such endeavors. We also suggest that the Family Part judge hearing any further applications in this case monitor the parties' efforts in this regard, and consider the appointment of an independent counselor if the parties and the son have failed to achieve progress on their own.

 
Affirmed.

The papers also sometimes identify the mother as Cheryl Munroe.

That order was not appealed, and is not before us.

We learned from counsel at oral argument that the son has since resumed his studies at Howard, and is reportedly doing well.

The daughter subsequently wrote a letter to the court requesting that she wished to be declared emancipated, as she then had plans to leave the country with her child. The record further reflects that the daughter has since given birth to a second child, and because of various circumstances, has had to discontinue her college studies.

The emancipation rulings are not challenged by either party on appeal.

Indeed, the father's own cross-motion in the Family Part argued that the Guidelines do not apply.

We, of course, do not consider or speculate as to the new wife's income, but merely note the impact of her employment on the father's living expenses.

Indeed, as was pointed out at oral argument, a plenary hearing may have only served to increase the father's financial burden through fee-shifting consequences.

These circumstances may include, for example, any demonstrable additional financial burden on the father arising from his newborn child.

(continued)

(continued)

15

A-6438-05T3

June 22, 2007