STEFANIE TOWNS v. JOHN P. ORNOWSKI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1542-08T3

STEFANIE TOWNS,

Plaintiff-Appellant,

v.

JOHN P. ORNOWSKI,

Defendant-Respondent.

_________________________________

December 8, 2009

Submitted November 17, 2009 - Decided

Before Judges Grall and LeWinn.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Monmouth County, Docket No. FM-13-879-01A.

LaRocca & Associates, attorneys for

appellant (Frank J. LaRocca and Melanie

B. Andrews, on the brief).

Margaret M. Mahon, attorney for

respondent.

PER CURIAM

Plaintiff Stefanie Towns appeals from an order entered on her post-judgment application to compel her former husband, defendant John P. Ornowski, to contribute to their child's expenses. The court's order requires defendant to pay sixty percent of the child's medical and dental expenses incurred in 2008 but absolves defendant of any obligation to contribute to expenses for treatment incurred in earlier years. The court also denied plaintiff's request to compel defendant to contribute to the costs of school and summer camp, because she incurred those expenses without consulting defendant.

Because the trial court's determinations on summer camp and school expenses give effect to the parties' property settlement agreement, we affirm that aspect of the order. The court's denial of reimbursement for medical and dental expenses, however, is inconsistent with this court's decision in Gotlib v. Gotlib, 399 N.J. Super. 295 (App. Div. 2008). Accordingly, we modify that portion of the court's order.

The parties were married on March 1, 1998 and have one child who was born in 1999. They were divorced on May 30, 2002, after reaching an agreement on custody, parenting time and support of their child. In August 2008, plaintiff applied for reimbursement by way of a cross-motion she filed in response to defendant's motion for an order compelling her to pay for the cost of defendant's travel to visit their child at a summer camp in Maine that year. This was the first application plaintiff made for contribution to the child's expenses since the divorce in 2002.

Plaintiff sought reimbursement in the total amount of $14,882.17. The amount she sought included $684.68, which was sixty percent of $1141.14 she paid for the child's unreimbursed medical and dental expenses. With the exception of one $488 charge for eye care, which plaintiff paid in two payments of $244, there was no charge in excess of $150.

The remaining $14,197.50 was for fifty percent of the cost of child care since the divorce: $12,000 for summer care; $2087.50 for care prior to and after school; and $110 for additional child care.

The following provisions of the parties' agreement are pertinent to plaintiff's request for reimbursement.

Paragraph 4.2 provides: "Any unreimbursed or uncovered medical, dental, hospitalization or prescription drug expenses for the child shall be paid 60% by the Husband and 40% by the Wife. Neither party shall incur any expense in excess of $150 without the consent of the other party except in the case of an emergency."

Paragraph 3.4 provides:

The parties acknowledge that their child is currently in full-time day care at the Goddard School at a cost of approximately $725 per month. The parties acknowledge that the child will need full-time day care until at least September of 2004 when he will be eligible to begin Kindergarten. Beginning the first Friday following the date of this Agreement, and continuing until the child begins Kindergarten, the Husband shall pay directly to the Wife the sum of $54 per week which will represent the Husband's contribution to these day care expenses. The Wife shall be responsible for the remaining day care expenses, however, the parties acknowledge and agree that the Wife shall have the right to choose alternate (less expensive) day care arrangements, at any time in the future. If the day care expenses are reduced to less than $108 per week, the Husband's contribution would be reduced to 50% of the actual amount. Once the child begins Kindergarten, the parties shall jointly agree upon appropriate pre-school and after-school care and the Husband shall be responsible for 50% of the cost thereof.

Paragraph 9.10 provides: "Failure on the part of either party to insist upon the strict performance of any of the provisions of this Agreement shall in no way constitute a waiver of any subsequent default or similar nature."

With respect to expenses for summer camp and child care, the trial judge found that the parties' agreement conditioned defendant's obligation to contribute that expense on consultation and agreement. We agree. Paragraph 3.4 does not permit any other interpretation. Its terms unambiguously define the parties' respective responsibility for work-related child care costs during the period prior to September 2004. Thereafter, the parties agreed that defendant would pay fifty percent of the cost of the "pre-school and after-school care" that they both deemed appropriate for their child. Without a subsequent agreement on appropriate care, and plaintiff does not claim that there was one, defendant had no obligation under paragraph 3.4. Thus, we find no error in the trial court's decision that plaintiff could not recover for child care expenses she incurred without defendant's agreement or a court order compelling contribution.

With respect to medical expenses, the trial court denied plaintiff's request for reimbursement for expenses incurred prior to 2008 on the ground that plaintiff did not make timely requests for payment. That was error.

The agreement does require that result and, as our decision in Gotlib, supra, 399 N.J. Super. at 306 demonstrates, controlling legal principles do not support it.

Paragraph 4.2 is silent on the issue. The only limitation on plaintiff's right to seek contribution from defendant for the child's medical expenses is her obligation to consult him before making an expenditure in excess of $150 in a situation that does not involve an emergency. And, as we explained in Gotlib, plaintiff's delay in seeking contribution for care that is the right of the child does not eliminate the child's right to that support from his father. Ibid.

Plaintiff's obligation to consult with defendant for non-emergency expenses involves different considerations. In this case, unlike Gotlib, there is no evidence that plaintiff's efforts to consult about non-emergency eye care would have been futile. See id. at 306. Under these circumstances, plaintiff should not have expected to receive payment for sixty percent of the costs of eyeglasses without consulting defendant before she incurred that expense. Accordingly, defendant's obligation for that expense should be reduced to sixty percent of the $150, which is the amount he agreed to pay without consultation. With that adjustment, defendant must pay plaintiff a total of $445.88 as reimbursement for the medical expenses itemized and documented by plaintiff.

Affirmed as modified.