JAYNE VALENTI v. DAVID BASSINDER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JAYNE VALENTI,

Plaintiff-Respondent,

v.

DAVID BASSINDER,

Defendant-Appellant.

______________________________

Telephonically argued January 29, 2014 - Decided March 6, 2014

Before Judges Ostrer and Carroll.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FD-15-168-09.

Alexis L. Gasiorowski argued the cause for appellant (Gasiorowski & Holobinko, attorneys; Ronald S. Gasiorowski, of counsel; Ms. Gasiorowski, on the briefs).

Jayne Valenti, respondent, argued the cause pro se.

PER CURIAM

Defendant appeals from a Family Part order enforcing his agreement to pay for "reasonable extracurricular expenses" of his son, Mark,1 born 1995. In particular, the order requires defendant to defray expenses related to Mark's attendance at fencing tournaments in various locales across the country. Having reviewed defendant's arguments in view of the undisputed facts and applicable law, we affirm.

I.

The parties had a long-term, unmarried relationship that ended by 2008, when they entered into a consent order formally governing custody, and defendant's obligation to support Mark, and, to some extent, plaintiff. The parties agreed to share legal custody of their son, with plaintiff designated the primary residential parent.

Defendant voluntarily assumed the obligation to pay over $100,000 a year to support his son. Defendant did not file a case information statement or otherwise disclose his finances in advance of entering the consent order, which is not accompanied by a child support worksheet. Nonetheless, the financial provisions of the consent order reflect that defendant is a person of substantial means. The evidence also reflects that plaintiff is not.

Defendant agreed to pay child support of $1200 a week directly to plaintiff. He also agreed to defray plaintiff's $1800 a month mortgage until it was satisfied in less than a year, after which he would pay an extra $300 a week in child support, for a total of $1500. He also agreed to provide health insurance for Mark and plaintiff, and to pay all of Mark's unreimbursed medical expenses.

In addition, defendant accepted responsibility for Mark's educational expenses. He agreed to pay tuition at the private school Mark was attending, or at a comparable school. Tuition was then $25,000 a year. Defendant also agreed to pay "100% of reasonable college costs including tuition/room and board." Finally, of significance to this appeal, defendant agreed to "pay all reasonable extra[]curricular expenses for the minor child."

To secure his obligation, in lieu of insurance, defendant granted plaintiff a $700,000 lien against his estate. Beginning in 2010, the amount would decline by $100,000 a year. Plaintiff was also entitled to retain certain personal property.

By 2010, Mark had become an accomplished fencer. For a significant period of time, defendant defrayed Mark's expenses without objection. It was undisputed those extracurricular expenses included the costs of equipment, lessons, fencing camps, and club fees. In particular, defendant also reimbursed plaintiff for the costs associated with Mark's attendance at tournaments outside New Jersey in 2010, 2011 and early 2012. Plaintiff's records, attached to her certification, did not always reflect the destination, but the travel usually included airfare, hotel expenses, and fencing-related costs.

Defendant paid $1100 for a November 2010 fencing trip, including airfare, a car, hotel room, and a coaching fee. He reimbursed plaintiff $1357 for a fencing trip to Dallas in January 2011. Defendant paid for a tournament in March 2011 at a cost of $1584, and a summer 2011 tournament in Reno at a cost of $3286 including $990 in airfare and $1487 in hotel costs. In October 2011, Mark attended the National Cup tournament in Virginia at a cost of $1634. He attended another tournament in Texas in November 2011, at a cost of $1154. He attended two tournaments in March 2012, one in Columbus, Ohio, and the other in Cincinnati, for a total cost of $1679. Plaintiff used frequent flier miles for the Cincinnati tournament.

In July 2012, Mark traveled to the Summer Nationals in California. Plaintiff asked defendant to reimburse her a total of $2953, consisting of: $845 for Mark's airfare; $880 for a hotel room, which as usual Mark shared with plaintiff; $300 for the coach; $351 for the entry fee; and $427 for equipment costs. She also requested $150 for a half-day fencing camp. Defendant refused to pay.

In September 2012, plaintiff filed a pro se application to enforce the 2008 consent order and obtain reimbursement for the July 2012 tournament expenses. She alleged that his refusal to pay was prompted by a disagreement on an unrelated matter. She also alleged there was no change of circumstances and the expenses were the same kind that he had previously paid without objection. She attached an itemized record of the expenses, discussed above.

Defendant filed a cross-motion requesting an order: denying plaintiff's motion; compelling defendant to pay all the extracurricular expenses submitted by plaintiff "except for the cost of . . . [Mark's] fencing tournament"; and requiring plaintiff to provide an accounting of child support received in the previous year. In a supporting certification, defendant highlighted the substantial support he provided to plaintiff for Mark. Under those circumstances, he asserted "it is not 'reasonable' for me to pay for 100% of the cost of the extracurricular activities submitted by the plaintiff."2 Defendant did not dispute plaintiff's evidence of past tournament expenses, nor his payment of those expenses without protest.

The parties appeared before a Family Part judge on December 10, 2012, after a child support hearing officer (CSHO) declined to address the motion and referred it to the court for decision.3 The court heard brief argument from plaintiff and defendant's counsel, and received limited testimony from the two parties. Plaintiff argued that the protested expenses were for the same sort of tournament that Mark had attended, at least ten times, over the last four years, and that defendant paid them without protest.

Defense counsel argued that expenses for tournaments around the country were not "reasonable extracurricular expenses" and should be covered by the $1500 a week of support. She also argued, without any evidential support, that the tournaments were not "national tournaments" where Mark's attendance was mandatory. Defendant stated that in 2008, Mark was not travelling to California, Chicago and Dallas. However, he did not address plaintiff's claims of expenses in 2010 through March 2012. Plaintiff also disputed counsel's and defendant's factual claims.

The judge granted plaintiff's motion, finding there were no changed circumstances that justified defendant's refusal to pay. The court also declined to consider defendant's cross-motion on an emergent basis and suggested that defendant "come in on a motion." Defense counsel agreed, "We'll come in on a motion." The judge entered an order granting plaintiff's motion and denying the cross-motion to the extent it requested a denial of plaintiff's motion. The order otherwise did not address the cross-motion.

This appeal followed. Defendant argues the court failed to make sufficient findings of fact and conclusions of law; the court erred because defendant made an initial showing that the fencing tournament expenses were not reasonable; and, at a minimum, the court should have conducted a plenary hearing to resolve what defendant asserted was a genuine issue of material fact regarding the reasonableness of the expenses. We disagree.

II.

An appellate court is required to defer to the Family Court's fact-finding because of the court's "special expertise" in family matters and the court's "superior ability to gauge the credibility of the witnesses who testify before it[.]" N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012); see also Cesare v. Cesare, 154 N.J. 394, 413 (1998). We also "accord great deference to discretionary decisions of Family Part judges." Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012).

On the other hand, if the "court ignores applicable standards, we are compelled to reverse and remand for further proceedings." Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008). The trial court must articulate the reasons for its decision, to inform the litigants, and to enable the appellate court to conduct appropriate review. See Curtis v. Finneran, 83 N.J.563, 569-70 (1980); R.1:7-4 (requiring court in non-jury trial to "find the facts and state its conclusions of law thereon").

No special deference is owed to the trial judge's "interpretation of the law and the legal consequences that flow from established facts[.]" Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We review de novo the trial court's interpretation of a contract. Fastenberg v. Prudential Ins. Co. of Am., 309 N.J. Super.415, 420 (App. Div. 1998). We apply contract principles to ascertain the meaning of a consent order governing domestic relations. Pacifico v. Pacifico, 190 N.J.258, 266 (2007); Petersen v. Petersen, 85 N.J.638, 642 (1981). Thus, we look to the intention of the parties as revealed by the language used, and also extrinsic evidence, such as the parties' subsequent dealings. Michaels v. Brookchester, Inc., 26 N.J.379, 388 (1958). See alsoTwp. of White v. Castle Ridge Dev. Corp., 419 N.J. Super. 68, 77 (App. Div. 2011) (considering course of performance in construing vague or ambiguous contract provisions). "The parties to an agreement know best what they meant and their action under it is often the strongest evidence of their meaning." Restatement (Second) of Contracts 202(4) comment g (1981).

Applying these principles, we discern little merit in defendant's argument that the tournament expenses at issue were not "reasonable extracurricular expenses" under the consent order. We recognize that the term "reasonable extracurricular expenses" is on its face vague and subject to debate. What may be an unreasonable expense for a parent of modest means may be perfectly reasonable for a parent, like defendant, of substantial means.

Where a contract term is ambiguous, resolution of its meaning is a fact question. Michaels, supra, 26 N.J.at 388. However, a plenary hearing is not required to resolve the meaning of an ambiguous contract term if, after considering all relevant materials, a genuine issue of fact no longer remains. In re Teamsters Indus. Emps. Welfare Fund, 989 F.2d 132, 137 (3d Cir. 1993) (stating no fact hearing was necessary to determine ambiguous contract term's meaning, where no genuine issue of fact remained in view of "[t]he past dealings of [the] contracting parties").

In this case, the undisputed evidence established that defendant reimbursed plaintiff for Mark's tournament expenses from as early as November 2010 through early 2012. Defendant provided no persuasive evidence that the expenses of the August 2012 tournament were different in kind or amount from those that he deemed acceptable during the preceding months. The trial court's conclusion that defendant had failed to show changed circumstances was supported by substantial credible evidence in the record. Based on the parties' dealings, the disputed expenses were reasonable extracurricular expenses.4

We also are unpersuaded by defendant's argument that the tournament expenses must be deemed unreasonable in view of the substantial weekly support defendant separately provided to plaintiff for Mark. The issue is not whether plaintiff could bear the tournament costs, based on the weekly support she receives. Defendant voluntarily assumed obligations over and above the $1500 a week in support, including the obligation to pay all of Mark's reasonable extracurricular expenses. He is bound by his agreement.

To the extent not addressed, defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R.2:11-3(e)(1)(E).

1 We use a pseudonym for the child.

2 In his certification, defendant also asserted that plaintiff had disclosed details of the litigation to Mark and requested an order restraining her from doing so in the future. However, that requested relief was not expressly identified in his notice of motion, although defendant sought "such other . . . relief as the Court may deem equitable and just."

3 The CSHO's jurisdiction does not extend to a case not subject to the Child Support Guidelines because of high income; non-Title IV-D cases that are not paid through Probation; and complex issues. See R. 5:25-3(b); New Jersey Judiciary, Child Support Hearing Officer Program Operations Manual 20 (2009). As the CSHO did not hear the matter and issue a recommended decision, the Family Part judge was not required to consider the matter immediately. Cf. R. 5:25-3(d) (referring to immediate judicial review of recommended decisions of CSHO and the conduct of a de novo hearing).

4 We recognize that the trial court's opinion could have been more detailed. On the other hand, we understand the time pressures of a Family Part judge handling emergent child support appeals. In any event, there is no need for a remand for an amplification, as we exercise de novo review over the consent order's meaning.