JOHN R. SHUBECK v. CATHERINE S. SHUBECK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JOHN R. SHUBECK,

Plaintiff-Appellant,

v.

CATHERINE S. SHUBECK,

Defendant-Respondent.

September 25, 2014

Before Judges Maven and Hoffman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-0345-04.

John R. Shubeck, appellant pro se.

Phillip F. Guidone, attorney for respondent.

The opinion of the court was delivered by

HOFFMAN, J.A.D.

Plaintiff John R. Shubeck appeals from an October 5, 2012 Family Part order modifying his support obligations, and a December 1, 2013 order denying reconsideration. Following a plenary hearing where plaintiff failed to appear, the court awarded permanent alimony to defendant Catherine S. Shubeck, and ordered plaintiff to pay college tuition and child support for the parties' son. Plaintiff argues the trial court's rulings represent a mistaken exercise of discretion, warranting reversal. Following our review, we reject plaintiff's argument and find he fails to demonstrate any clear legal, factual, or procedural error. The record fully supports the trial court's factual findings, to which the court properly applied the law. Moreover, the court's procedural decisions were within its discretion. Therefore, we affirm.

We discern the following facts from the record. The parties married in January 1982, and have three children. Early in the marriage, plaintiff worked at Union Carbide, but eventually returned to school part-time to take computer programming classes while defendant briefly helped support the couple as a part-time bank teller. Plaintiff eventually returned to full-time employment as a computer specialist.

Defendant never completed her college studies, and her premarital work history was limited to part-time retail positions. After the birth of their children, the parties agreed defendant would stay home, where she was primarily a homemaker. After their oldest son left for college in 2001, defendant reentered the work force part-time. The parties generally maintained a modest marital standard of living.

On October 29, 2003, the parties divorced. The final judgment of divorce (JOD) incorporated the parties' October 2, 2003 property settlement agreement (PSA). The PSA provided defendant would remain in the marital home until the youngest child graduated from high school, at which point the parties would sell the home and divide the net proceeds. Plaintiff pledged to pay all home-related costs and the majority of the children's expenses, including private high school tuition. Plaintiff also agreed to pay all college expenses for all three children as long as he received annual bonus income. In the event plaintiff did not receive a bonus, the parties agreed to contribute to the children's college costs in proportion to their respective incomes. Defendant assumed sole responsibility for her daily living expenses. The PSA further provided the parties would reevaluate plaintiff's support obligations upon the sale of the former marital home.

Plaintiff became estranged from his youngest child when the child was in eighth grade. Around the time the child graduated from high school, sometime between 2009 and 2011, defendant began working full-time as a receptionist.

In January 2011, the parties sold the marital home for $215,000. Plaintiff immediately ceased providing support to defendant and the youngest child. In August 2011, defendant quit her job because cataracts significantly impaired her vision. She eventually acquired a part-time retail position. The trial court found defendant could earn $11,726 annually, "working at her highest and best level." The court also found defendant had approximately $5890 in monthly expenses.

As of the date of the plenary hearing, plaintiff was still employed as a computer technology professional. From 2008 to 2010, plaintiff earned an average annual gross income of over $200,000.

The present appeal arises from the trial court's order regarding defendant's motion, and plaintiff's cross-motion. Among other things, defendant sought alimony, retroactive to the date of the sale of the marital home, reimbursement for the youngest child's college expenses, and payment of attorney fees. Plaintiff sought termination of his ongoing support obligations to defendant and the child, arguing defendant allegedly committed fraud, and was, therefore, barred from ongoing support by the doctrine of unclean hands.

Final determination was significantly delayed by mediation, emergent applications, and motion practice. The court eventually scheduled a plenary hearing for June 25, 2012. At plaintiff's request, the court adjourned the hearing to September 27, 2012. In the interim, plaintiff moved for dismissal or to compel discovery. Plaintiff then sought to postpone the hearing or to appear telephonically, which the court denied.

On September 27, 2012, plaintiff did not appear. The court dismissed plaintiff's outstanding motions for lack of prosecution. Defendant and the youngest child testified, and defendant admitted exhibits into the record. At the close of evidence, the court set forth its factual findings and legal conclusions in an oral opinion. The court ordered plaintiff to pay, among other things, permanent alimony of $5000 per month and child support of $75 per week. Both obligations were to be paid retroactively to the date of sale of the marital home. The court also ordered plaintiff to reimburse defendant for the youngest child's past college tuition, future college tuition, and $33,125 of defendant's attorney's fees and costs. This appeal followed.

Plaintiff challenges various procedural decisions by the trial court. Plaintiff argues the judge should not have conducted the hearing while plaintiff's outstanding discovery requests were pending. He also argues his requests for postponement or telephonic appearance should have been granted. We reject these contentions.

"[A] trial court has wide discretion in controlling the courtroom and the court proceedings." D.G. v. N. Plainfield Bd. of Educ., 400 N.J. Super. 1, 26 (App. Div. 2008); see also Huszar v. Greate Bay Hotel, 375 N.J. Super. 463, 471-73 (App. Div.) (affording discretion to trial court's denial of a motion to extend discovery), rev'd on other grounds, 185 N.J. 290 (2005); State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div.) ("[T]rial adjournment[] rests within the sound discretion of the trial court."), certif. denied, 58 N.J. 335 (1971).

Here, after the trial court gave plaintiff a three month postponement of the hearing, plaintiff submitted last minute requests for another postponement and additional discovery. The extensive delay between the filing of defendant's motion in May 2011, and the hearing held on September 27, 2012, placed an ongoing financial burden on defendant. Moreover, plaintiff's discovery requests were untimely, he fails to explain the relevance or import of the missing discovery, and he does not demonstrate the prejudicial impact of the denials. D.G., supra, 400 N.J. Super. at 26. In light of these facts, the court's denial of plaintiff's requests for postponement and additional discovery was within its discretion.

Similarly, the court was within its discretion to deny plaintiff's request to appear telephonically. In person testimony enhances the court's ability to determine credibility. Testimony via telephone should be limited to "special situations in which there is either exigency or consent and in which the witness' identity and credentials are known quantities." Aqua Marine Prod. v. Pathe Computer, 229 N.J. Super. 264, 275 (App. Div. 1988). Here, plaintiff fails to demonstrate exigency or consent. Therefore, the court did not abuse its discretion by denying plaintiff's motion.

Plaintiff next argues the judge should have vacated the instant default judgment. However, plaintiff did not file to vacate default with the trial court. Therefore, this issue is not properly before us, and we will not consider it on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J.229, 234-35 (1973) ("[A]ppellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available[.]").

Plaintiff argues the trial court failed to "find the facts and state its conclusions of law," as required by Rule 1:7-4. We disagree and determine the bench ruling satisfied the requirements of the Rule. R. 2:11-3(e)(1)(E).

Plaintiff disputes the trial court order awarding permanent alimony. First, plaintiff raises numerous factual arguments challenging the court's findings of fact. Plaintiff argues that the court improperly considered defendant's sight impairment, misunderstood defendant's employment history, underestimated defendant's imputed income, overestimated defendant's living expenses, overestimated plaintiff's income, failed to consider defendant's alleged fraud, and failed to consider defendant's alleged attempts to alienate plaintiff from his youngest child.

Family Part factfinding receives particular deference because of "the family courts' special jurisdiction and expertise in family matters," [Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)], which will be disturbed only upon a showing that the findings are "'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence'" to ensure there is no denial of justice, Platt v. Platt, 384 N.J. Super. 418, 425, (App. Div. 2006) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484, (1974)).

 
[Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012).]

Here, the court's findings were based upon the unrebutted testimony of defendant and the youngest child. Plaintiff argues this testimony was controverted by exhibits he attached to prior motions. However, a review of the referenced exhibits reflects they were not automatically admissible. The documents contained hearsay, N.J.R.E. 801, unauthenticated documents, N.J.R.E. 901, and lay opinion, N.J.R.E. 701 (stating lay opinion is only admissible if "rationally based on the perception of the witness and [helpful] in understanding the witness' testimony or in determining a fact in issue."), and they were never offered for admission because plaintiff chose not to appear. As the court's findings were supported by adequate testimony and competent evidence, we will not disturb them.

Plaintiff next argues that defendant's claim should be barred by the doctrine of unclean hands, alleging defendant refused to comply with court orders, willfully sought to alienate plaintiff from his youngest child, falsely accused plaintiff of inappropriate sexual behavior, committed adultery, forged plaintiff's signature, and committed various other acts of fraud. However, there is no competent evidence in the record to support any of these allegations. As noted, plaintiff was not present to offer his evidence for admission. Therefore, plaintiff's arguments are unpersuasive, and the trial court did not err by failing to consider the doctrine of unclean hands.

Plaintiff also argues defendant failed to demonstrate circumstances warranting alimony, disputing defendant's sight impairment and present ability to work. Again, we note the factual findings of the trial court were adequately based upon the evidence in the record. Moreover, it is undisputed that defendant recently moved out of the marital home. The PSA specifically provided the parties would reevaluate plaintiff's support obligations upon the sale of the former marital home. Therefore, plaintiff's argument fails.

Our review of this matter is guided by the former provisions of N.J.S.A. 2A:34-23(b), as the State enacted 2 014 N.J. Laws 42 on September 10, 2014, significantly modifying the statute. Under the prior law, when "examining any alimony request, the court begins its analysis by considering whether permanent alimony should be awarded." Gnall v. Gnall, 432 N.J. Super. 129, 149-50 (App. Div. 2013), certif. granted, 217 N.J. 52 (2014). "All facts regarding each unique marital partnership must be evaluated when considering evidence regarding a claim of economic dependence warranting long-lasting support." Id. at 153. Alimony should be crafted to allow the supported spouse to live the same lifestyle he or she enjoyed during the marriage. Mani v. Mani, 183 N.J. 70, 80 (2005). In addition, the court must consider

(1) The actual need and ability of the parties to pay;

(2) The duration of the marriage or civil union;

(3) The age, physical and emotional health of the parties;

(4) The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living;

(5) The earning capacities, educational levels, vocational skills, and employability of the parties;

(6) The length of absence from the job market of the party seeking maintenance;

(7) The parental responsibilities for the children;

(8) The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;

(9) The history of the financial or non-financial contributions to the marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;

(10) The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;

(11) The income available to either party through investment of any assets held by that party;

(12) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment; and

(13) Any other factors which the court may deem relevant.

[N.J.S.A. 2A:34-23(b).]

Here, the court found that plaintiff supported defendant in a modest lifestyle during the course of a twenty-one year marriage. During that time, defendant contributed significantly as a homemaker, and forewent a meaningful professional career. Presently, defendant has limited ability to support herself, while plaintiff earns a substantial living. We are satisfied the court properly considered the factors enumerated in N.J.S.A. 2A:34-23(b) in awarding permanent alimony, and, based on the evidence, the court's conclusions were reasonable. In light of defendant's clear need for support and plaintiff's substantial income, and considering all relevant factors, we discern no indication the court erred or otherwise abused its discretion by ordering permanent alimony of $5000 per month.

Plaintiff next disputes the trial court order for child support and payment of college tuition. Plaintiff challenges various findings of fact made by the court, arguing defendant excluded plaintiff from the college selection process. Plaintiff also alleges his youngest child chose to cut off contact with him against his efforts. As discussed previously, the trial court has broad discretion in fact-finding, Milne, supra, 428 N.J. Super. at 197, and plaintiff's factual arguments are unsupported by the competent evidence in the record. Therefore, plaintiff's arguments are unpersuasive.

Plaintiff argues the trial court failed to properly consider Newburgh v. Arrigo, 88 N.J. 529 (1982), when ordering him to pay for his child's higher education. Newburgh enumerates twelve factors for a claim of contribution towards the cost of higher education. Id. at 545. Plaintiff argues factor eleven, "the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance," should have been considered dispositive on the issue, obviating plaintiff's contribution. Ibid.

The trial court must weigh all of the Newburgh factors, and no single factor is independently dispositive. Raynor v. Raynor, 319 N.J. Super. 591, 617 (App. Div. 1999). Here, the court found the child made significant attempts to maintain a relationship with plaintiff, and concluded plaintiff was responsible for the estrangement with the child. The court, therefore, disregarded factor eleven as controlling, and properly found the remaining factors favored payment of the child's tuition. The court's factual findings were adequately based on the evidence in the record, and its conclusion was consistent with legal authority. We find no basis to disturb the court's ruling on the payment of child support and tuition for plaintiff's youngest child.

Finally, plaintiff argues the trial court award of attorney's fees was error. This decision also rests with the trial court's reasoned discretion, and will only be disturbed for a clear abuse of discretion. Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008). Pursuant to Rule5:3-5(c), the court has discretion to award counsel fees in a matrimonial action, considering

(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.

Here, the trial court specifically found plaintiff "acted in bad faith, failed to appear, failed to be responsive to mediation sessions, failed to take and maintain reasonable positions throughout the case, [and] basically stonewalled the defendant, causing her to borrow significantly from her parents . . . ." Although the court's findings do not enumerate each and every factor listed, we infer from the court's findings and the facts in the record defendant had a financial need, plaintiff had the ability to pay, and plaintiff acted in bad faith. These findings are adequately based on the record and support the award of attorney's fees. Therefore, we conclude plaintiff's argument lacks merit.

To the extent we have not specifically addressed any of defendant's arguments, we find them to be without sufficient merit to warrant additional discussion. R. 2:11-3(e)(1)(E).

Affirmed.