WILLIAM DRIPPS v. REGINA DRIPPSAnnotate this Case
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-0
July 28, 2015
Before Judges Hayden and Tassini.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-29-10.
Regina Dripps, appellant pro se.
Dale E. Console, attorney for respondent.
This is an appeal from the order on the parties' post-judgment matrimonial motions. The parties entered into a property settlement agreement (PSA) and the Family Part incorporated the PSA into the judgment of divorce (JOD). Defendant ex-wife moved for an increase in alimony. Plaintiff ex-husband brought a cross motion for relief, including emancipation of two of the parties' children. Defendant then filed a purported motion for reconsideration of an order entered many months earlier. The Family Part entered an order denying the increase in alimony, granting emancipation of the children, and denying the motion for reconsideration. Defendant appeals. Plaintiff opposes the appeal, submitting that the Family Part orders were properly entered. We have considered the relevant law and the record and affirm.
On March 21, 1987, the parties were married. They are the parents of six children: W.D., born in 1990; Rb.D., born in 1991; Rg.D., born in 1992; Rc.D., born in 1995; Rn.D., born in 1997; and M.D., born in 1999. During most of the marriage, plaintiff was employed full-time, defendant was employed part-time, and the parties and children resided in their marital home in East Windsor.
Separation, Divorce Complaint, PSA, and JOD
Around June 2009, the parties separated, and on July 2, 2009, plaintiff filed for divorce. At that time, W.D. was in college; Rb.D. planned to enter college in fall 2009; Rg.D. and Rc.D. were in parochial high school; and Rn.D. and M.D. were in parochial elementary school. At that time also, plaintiff had income only from temporary consulting work with no benefits. By consent order, with both parties having counsel, defendant remained in the marital home, the parties had joint legal custody of the children, and, pending submission of case information statements (CISs), payment of bills retained status quo. By the spring of 2010, plaintiff had lost his consulting work and was unemployed for some months.
On January 13, 2011, the parties, both represented by counsel, entered into a comprehensive, twenty-eight-page PSA. On January 13, 2011, the Family Part entered the JOD, which incorporated the PSA.
In the PSA, alimony was based on plaintiff's income of $90,000 per year and defendant's income of $35,000 per year. The parties acknowledged that for 2009, plaintiff's income was $175,472 and that plaintiff had only recently been employed full time. Effective February 2011, plaintiff would pay defendant permanent alimony of $1,600 per month. The PSA stated that, for five years, the parties would exchange year-end financial documents. Plaintiff agreed to maintain life insurance to assure payment of his alimony obligation. The parties acknowledged full advice relative to Weishaus v. Weishaus, 180 N.J. 131 (2004); Crews v. Crews, 164 N.J. 11 (2000); and Lepis v. Lepis, 83 N.J. 139 (1980).
Relative to child support and emancipation, the PSA defined emancipation as occurring when a child reached the age of eighteen or graduated from high school unless the child was continually enrolled full-time in college or vocational school, in which circumstances, emancipation would occur upon graduation from college or school or five years from the date of high school graduation, whichever was earlier. Under no circumstances would the parties be required to pay child support after the child had reached the age of twenty-three years unless the child was unable to work due to illness, injury or disability.
Further, the PSA stated that the parties had a mutual responsibility for college education expenses for their unemancipated children, and that the choice of college would be made by consensus of the parties and the child. However, if the parties could not agree on their respective contributions, either party could apply to the court to establish each parent's obligation.
Relative to equitable distribution, the PSA provided that the parties agreed on division of the real and personal property acquired during the marriage. A lengthy list of personalty to be divided was attached to the PSA.
Finally, the parties agreed to "resolve matters of equitable distribution and property division, assumption and allocation of liabilities, spousal support and financial benefits and all other related matters through negotiation and settlement in lieu of Court decision and determination." The PSA stated that the parties had voluntarily entered into the PSA and each party mutually released the other from claims up to the date of the PSA. The PSA stated that, in the event of a dispute, each party would make a reasonable attempt to settle the dispute by negotiation and/or mediation and agreement before using the courts for any determination.
2012 Motion, Cross Motion, and Order
On July 9, 2012, defendant filed a notice of motion for enforcement of litigant's rights. Defendant certified that plaintiff failed to comply with the JOD and PSA in several ways. On or about July 26, 2012, plaintiff filed opposition and a cross motion. Plaintiff certified that defendant had been uncooperative and failed to comply with the JOD and PSA and subsequent orders, and she had engaged in frivolous litigation. He also made numerous requests for relief.
On September 27, 2012, the Family Part entered an order on the motion and cross motion without oral argument. Accompanying the order was the court's statement of facts and conclusions of law. The twenty-one paragraph order included the following pertinent orders.
The court denied defendant's request for an order requiring plaintiff to pay Rb.D.'s college expenses, and denied defendant's request for an order requiring plaintiff to provide her a Craftsman tool set and toolbox and to return a belt sander and chain saw. The court also denied plaintiff's request for an order related to equitable distribution of the personalty. The court granted plaintiff's request for an order finding that defendant failed to comply with the JOD and PSA, but the court also found plaintiff failed to comply with the JOD and PSA.
The court granted plaintiff's request and required defendant, within fifteen days of the date of the order, to provide plaintiff proof of her 2011 income and life insurance. However, the court denied plaintiff's request for an order requiring defendant to provide the personalty she allegedly withheld from him. Finally, the court reiterated that, consistent with the JOD and PSA, the parties were obligated to participate in mediation for any future disputes before filing any application with the court unless the dispute related to an emergency.
2013 Motions, Hearing on Motions, and Order
On June 19, 2013, defendant filed a motion, requesting an increase in alimony from $19,000 to $31,700 per year. Defendant's certification stated only that her alimony was not sufficient to allow her to maintain a "decent lifestyle." Defendant attached copies of her 2012 W-2, showing her earned income to be $37,788 and plaintiff's 2012 W-2, showing his income to be $98,393. Defendant failed to submit required documents, including copies of the JOD and PSA and prior and current CISs.
On July 5, 2013 plaintiff filed a cross motion with requests for relief, including emancipation of W.D. and Rb.D., payment from defendant for unreimbursed medical expenses, and proof from defendant that she was maintaining life insurance. Plaintiff also requested an order requiring defendant to provide documents showing her alleged out-of-pocket unreimbursed medical expenses, so that he could determine what, if any, amount was owed. Plaintiff supported his motion with a detailed certification.
Defendant, long out of time, filed a purported notice of cross-motion, dated July 17, 2013, requesting reconsideration of the September 27, 2012 order, without a copy of the order to be reconsidered. Defendant alleged that she was "medically unable to respond post-surgery (August 1, 2012)" to the September 27, 2012 order; however, she did not provide evidence to support her allegation.
Relative to life insurance, defendant stated that she had requested that her employer provide proof of insurance, but that the employer needed additional time to do so. She stated that neither W.D. nor Rb.D. had full-time employment. She acknowledged that Rc.D. was temporarily residing with plaintiff. She alleged that plaintiff had wrongfully refused to reimburse her for medical expenses incurred for the children.
On July 25, 2013, the Family Part judge held a hearing and heard the parties' testimony. The judge advised defendant that her motion failed to comply with the Court Rules as she failed to attach copies of the required documents, including the CISs, the JOD and PSA, current paystubs, tax return, and W-2 forms. R. 5:5-4. The judge noted that defendant's purported cross motion for reconsideration of the September 27, 2012 order was long out of time, so that it would not be considered. R. 4:49-2. However, the judge advised defendant that she would consider the papers submitted to support the motion for reconsideration as a reply to plaintiff's cross motion.
At the time of the hearing, W.D. was twenty-three years of age, had dropped out of college, and was residing with defendant. Consistent with the PSA's definition of emancipation, the judge found that W.D. was emancipated.
Rb.D., who was twenty-two years of age, had also dropped out of college, and had not attended college for three semesters. Rb.D had been treated by a psychiatrist, and in 2010, the psychiatrist recommended that, given her depression, she take a medical leave from college. At the time of the hearing, Rb.D. was employed by a security agency with ten hours per week guaranteed, fill-in time available, and had been working thirty-nine hours per week at $11 per hour for a total of $429. Defendant alleged that Rb.D. was severely dysfunctional, not self-supporting, and should not be emancipated. Plaintiff testified that on the night before the hearing, Rb.D. had visited him, seemed fine, and stated that work was going "great."
The judge noted that defendant had not submitted documentation sufficient to support her allegations of Rb.D's dysfunction. Based on Rb.D.'s working hours and income, the judge found that Rb.D. was emancipated. The judge noted that defendant, with whom Rb.D. was residing, could charge Rb.D. rent. Emancipation terminated plaintiff's obligation to pay child support and medical expenses for W.D. and Rb.D., but plaintiff volunteered to carry them on his medical insurance until they had employment with benefits or until he could no longer do so.
On July 30, 2013, the Family Part filed an order on the motions. The order denied defendant's motion for an increase in alimony. The court found defendant in violation of litigant's rights for failure to comply with previous court orders as well as the JOD and PSA. The court also ordered defendant, within thirty days of the date of the order, to provide proof of life insurance, and proof of her current income for purposes of determining her contribution to the college tuition for the unemancipated children. Additionally, the court ordered defendant, within two weeks of the date of the order, to complete and submit an updated CIS to plaintiff's counsel. The court also ordered both parties to cease arguing over personal property, and required the parties to meet at plaintiff's counsel's office within thirty days of the date of the order for a three-way conference. If the parties were unable to resolve the matter, the court would then order discovery and schedule a plenary hearing.
The court ordered W.D. and Rb.D. emancipated. As such, the court granted plaintiff's motion to adjust child support. However, both parties were ordered to contribute to the unemancipated children's on-going medical expenses, to reimburse the other for his or her share of expenses incurred and to submit proof of those expenses within thirty days, and restrained defendant from having medical providers bill plaintiff directly. Regarding the three-way conference, the court ordered the parties to discuss plaintiff's motion regarding parenting time and the amount of child support. If the parties could not come to an agreement, the court would hold a plenary hearing.
This appeal followed.1
Conclusions of Law
On appeal, defendant essentially seeks to relitigate the PSA and the September 27, 2012 order; but they are not the subject of this appeal. Concerning the order on appeal, it appears that defendant contests the court's failure to increase alimony, the denial of her purported motion for reconsideration, and the emancipation of the two children. She also asserts that the judge's rulings against her showed bias, and challenges the order requiring her to mediate disputes, the court's refusal to enforce the personal property distribution agreement, and the order to pay unreimbursed medical expenses. We are not persuaded.
On appeal, legal issues involving interpretation of a contract are subject to plenary review. Vosough v. Kierce, 437 N.J. Super. 218, 241 (App. Div. 2014), certif. denied, 221 N.J.218 (2015). "A trial court's interpretation of the law and the legal consequences that flow from established facts" are not entitled to "special deference" on appeal. Manalapan Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 140 N.J.366, 378 (1995).
However, the trial court's factual findings should be upheld "if they are supported by adequate, substantial and credible evidence on the record" and they are not "so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.261, 279 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super.172, 188 (App. Div. 1993)); Snyder Realty, Inc. v. B.M.W. of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J.165 (1989); see alsoMacKinnon v. MacKinnon, 191 N.J.240, 254 (2007); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J.474, 484 (1974).
The Family Part has "broad equitable powers" and a special role "to accomplish substantial justice." Weitzman v. Weitzman, 228 N.J. Super. 346, 358 (App. Div. 1988), certif. denied, 114 N.J. 505 (1989). Given the Family Part's special expertise in family matters, we owe substantial deference to its findings of fact. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). That is,
we "should not disturb the factual findings and legal conclusions of the trial judge unless . . . convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice" or when we determine the court has palpably abused its discretion.
[Parish v. Parish, 412 N.J. Super.39, 47 (App. Div. 2010) (quoting Cesare, supra, 154 N.J.at 412).]
When a motion or cross motion is brought for enforcement or modification of a prior order or judgment, a copy of the order or judgment sought to be enforced or modified shall be appended to the pleading filed in support of the motion. R. 5:5-4. When a motion or cross-motion is brought for the entry or modification of an order or judgment for alimony or child support based on changed circumstances, the pleading filed in support of the motion shall have appended to it a copy of the prior [CIS] or [CISs]. Ibid. Defendant failed to submit the prior JOD and PSA and failed to submit the requisite CISs. Consequently, we find that the court properly denied her motion.
Relative to emancipation of the two children, W.D. was twenty-three and Rb.D. was twenty-two, working and had not attended college for three semesters. Defendant failed to support her allegation that depression prevented Rb.D from working. The circumstances of the subject children at the time of the hearing on the motions clearly met the PSA's definition of emancipation. Public policy favors settlement of litigation. Bistricer v. Bistricer, 231 N.J. Super. 143, 151 (Ch. Div. 1987); U.S. v. Lightman, 988 F. Supp. 448, 465 (D.N.J. 1997). An agreement to settle litigation is a contract, which like all contracts freely entered into should be honored and enforced absent fraud or other compelling circumstances. Brundage v. Estate of Carambio, 195 N.J. 575, 601 (2008) (citations and quotation marks omitted). Consequently, the order emancipating the two children was pursuant to the express terms of the PSA and not an abuse of discretion.
Defendant also contends that the court should have heard her motion for reconsideration of an order entered many months earlier. Motions for reconsideration are to be made "not later than 20 days after service of the final order or judgement" that is the subject of the motion. R. 1:7-4(b). Defendant alleged that a minor operation she had several weeks before the return date of the motion prevented her from responding to the 2012 motion. In July 2013, defendant filed her motion for reconsideration of the September 27, 2012 order. Defendant did not substantiate any basis to justify her filing so long out of time. Moreover, "neither the parties nor the court may . . . enlarge the time specified by R. 1:7-4[.]" R. 1:3-4(c).
We have considered defendant's other contentions and find them without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). Suffice it to say that we have reviewed the record and find no evidence that the judge's rulings were biased or prejudiced in any way.
1 Defendant filed her appeal on September 13, 2013, but in a letter from October 2013, withdrew her appeal in light of a plenary hearing that was scheduled for October 21. The Family Part later dismissed the matter based on defendant's failure to prosecute or provide certain documents. Thereafter, on May 9, 2014, we granted defendant's motion for reinstatement of her appeal.