ROBERT PIKE v. LORRAINE PIKE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ROBERT PIKE,

Plaintiff-Appellant,

v.

LORRAINE PIKE,

Defendant-Respondent.

____________________________________

November 18, 2016

Submitted April 13, 2016 Decided

Before Judges Fuentes and Koblitz.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1494-94.

D'Arcy Johnson Day, attorneys for appellant (Andrew J. D'Arcy, on the brief).

Zager Fuchs, PC, attorneys for respondent (Susan L. Goldring, of counsel; Richard J. Angelo, on the brief).

PER CURIAM

Plaintiff Robert Pike and defendant Lorraine Pike married in May 1989 and have one child, a son born in July 1990. The parties divorced on May 28, 1996. The judgment of divorce (JOD) incorporated a property settlement agreement (PSA) that addressed all of the issues associated with the dissolution of the marriage. Relevant to the issues raised in this appeal, the PSA addressed plaintiff's child support obligation, the grounds for their son's emancipation, and a provision setting the parties' obligation to pay for the cost of their son's post-secondary education "based upon their respective ability to pay at the time that decision must be made."

In this appeal, plaintiff seeks to reverse the December 19, 2014 order of the Family Part, which: (1) directed him to pay "sixty-five percent . . . of [the] total college costs" incurred by his son when the son attended 2.5 years at Brookdale Community College and completed his undergraduate studies at Rutgers University in 2013; (2) suppressed plaintiff's "pleadings" as a sanction pursuant to Rule 4:23-5(a)(1) because he failed to provide discovery to defendant; and (3) awarded defendant $1000 in counsel fees.

After reviewing the record before the Family Part, we reverse and remand for the court to conduct an evidentiary hearing and make factual findings that resolve the disputed material issues of fact raised by the parties and their son in their certifications.

We derive the following facts from the record developed before the Family Part.

Paragraph 4 of the PSA provides

If the child born of the marriage . . . has the desire and ability to attend a post-secondary course of study on a full-time basis, the parties shall each be responsible to contribute to same based upon their respective ability to pay at the time that decision must be made.

In the first instance, however, the child shall be responsible for applying for financial assistance in the form of loans, grants and/or scholarships before looking to the parents for contribution.

The PSA also defines "emancipated" to include graduation by the son from a "four-year undergraduate school."

On July 23, 2013, plaintiff moved before the Family Part to declare his son emancipated based upon having "successful[ly] completed and graduated from an undergraduate program at Rutgers University[.]" In the certification he submitted to support the relief he requested, plaintiff stated he had spoken to defendant "about consenting to . . . the termination of my child support obligation, but she has refused to do so." Defendant opposed plaintiff's motion and filed a cross-motion, seeking an order "[r]equiring . . . plaintiff to contribute to the college education" and awarding counsel fees.

The parties' conflicting motions were first reviewed by a different Family Part Judge. On October 11, 2013, this other judge decided the motions on the papers because the parties had not requested oral argument. In an order entered that same day, the judge granted plaintiff's motion to emancipate his son, who was by then twenty-three years old. The judge concluded he had "obtained his undergraduate degree, and the parties agreed that the child should be emancipated." The judge denied without prejudice both defendant's cross-motion to compel plaintiff to contribute his proportionate share of their son's post-secondary educational expenses and her application for counsel fees.

In the Statement of Reasons attached to the order, the judge found that the parties' warring certifications presented "substantial issues of fact related to the amount that the defendant contributed to the expenses for the child's college education and the parties' obligations." The judge ordered the parties to "serve upon one another" a "list and copies of all relevant documents[,]" and a list of individuals with knowledge of the relevant facts. The parties were required to do this within thirty days of October 11, 2013. Within this same timeframe, the parties were to "agree upon an attorney to serve as a mediator[.]"

If the parties failed to agree on a mediator, the court directed them to seek attorney Vincent DeLuca who would serve as a court-appointed mediator. The court gave the parties forty-five days to mediate their dispute. "In the event the parties are unable to settle their differences, they shall notify the court in writing and the court will schedule a conference to determine if a plenary hearing is necessary."

Notwithstanding the order, a different Family Party judge prepared another order, dated December 19, 2014, which states that defendant "opened" this matter to the court on October 28, 2014. In the Statement of Reasons attached to that order, the judge stated that "[t]he parties exchanged financial documents and attended a mediation session on April 11, 2014 with Mr. Deluca, Esq." The parties failed to determine through mediation the share of college expenses each party was obligated to pay.

Despite the clear directive in the October 11, 2013 order, the December 19, 2014 order shows that defendant filed an application seeking: (1) the suppression of plaintiff's pleadings under Rule 4:23-5(a)(1) (2); (2) an order directing plaintiff to pay "an appropriate share of college costs for the parties' son[;]" and (3) an award of counsel fees. Defendant submitted a certification in support of her application alleging plaintiff withheld financial information in bad faith to avoid paying his fair share of his son's college expenses.

Plaintiff responded with his own certification refuting defendant's claims. Plaintiff also claims defendant intentionally inflated the true cost of his son's college education to $117,106.711 by including unrelated items, such as automobile expenses and the purchase of a new car. When calculating the cost of her son's college education, defendant also failed to account for the loans he obtained, the financial assistance he received, and the payments he made independent of defendant.

In the Statement of Reasons attached to the December 19, 2014 order, the second judge cited Rule 4:23-5(a)(1) to support her decision to "suppress[] . . . [p]laintiff's . . . pleadings." But this rule presumes the existence of a civil action governed by the applicable discovery deadlines. Here, the October 11, 2013 order directed the parties to exchange "all relevant documents" within thirty days. It is clear to us that the first judge intended to prepare the parties for mediation when he issued his order. The October 11, 2013 order did not authorize either party to seek sanctions under Rule 4:23-5.

The fact the parties exchanged warring certifications after mediation failed to produce a settlement demonstrates that the court must issue a case management order that clearly identifies the information that must be produced and unambiguously establishes enforceable deadlines for the production of that information. Once this has been accomplished, the court must conduct a plenary hearing to determine whether plaintiff was improperly excluded from the decision making process concerning his son's college education.

Here, defendant bears the burden of proof because she is the moving party. Her case is weakened by her son's certification, which refutes many of the material assertions defendant has made. The son stated

While it is true that some of my school loans were taken [out in] my mother's name, this was done solely due to eligibility and interest rate considerations. I have an agreement with my mother that I am responsible to pay all car loans, cellular phone bills and student loans regardless of who is responsible in name for these obligations. In fact, I have been making monthly payments to my mother for more than a year.

The court must assess the credibility of these allegations at an evidentiary hearing. There is no rational way to apportion liability between the parties under these circumstances. These same reasons compel us to reverse the court's decision to award counsel fees to defendant.

1 Defendant alleged in the certification she submitted to the first judge that the total indebtedness she incurred for her son's college education was $84,242.07. She claims she also paid an additional $32,864.63, which brought the total to $117,106.71.