THOMAS F. SAN FILIPPO, SR v. HELEN BARTEK

NOT FOR PUBLICATION WITHOUT THE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-3751-16T2

THOMAS F. SAN FILIPPO, SR.,

           Plaintiff-Respondent,

     v.

HELEN BARTEK,

          Defendant-Appellant.
_________________________________

           Submitted April 17, 2018 – Decided April 27, 2018

           Before Judges Fisher and Fasciale.

           On appeal from Superior Court of New Jersey,
           Chancery Division, Family Part, Morris County,
           Docket No. FM-14-1057-07.

           Gruber,   Colabella,   Liuzza  &   Thompson,
           attorneys for appellant (Chris H. Colabella,
           of counsel; Kristen C. Montella, on the
           brief).

           Simon,   O'Brien  &   Knapp,  attorneys   for
           respondent (John T. Knapp, of counsel and on
           the brief; Jaclyn N. Kahn, on the brief).

PER CURIAM

     The   parties    were   married    in   1984.   That   marriage,     which

produced three children – a son born in 1981, and daughters born
in 1986 and 1989 – ended in 2008 when they divorced. The divorce

judgment incorporated a property settlement agreement (PSA), in

which they agreed, in paragraph 3, "to be equally responsible for

the college expenses" of their two daughters and "to share equally

the cost of th[os]e children's college education."1

     Both daughters graduated from college. The youngest child

began her college education in Vermont in the fall of 2007.

Defendant Helen Bartek took out loans then and continuing until

2010 in an amount alleged to exceed $100,000. According to Helen,

she believed plaintiff Thomas F. San Filippo, Sr., had already

borne the cost of the older daugther's education and that Helen's

incurring of the debt for the youngest was consistent with their

agreement   to   equally   split   the   overall   college-education

obligation called for in paragraph 3. Helen, however, claimed to

have later learned her supposition was incorrect; consequently,

she moved in February 2016 for an order compelling payment of

Thomas's fifty percent share of the youngest child's education

expenses. Thomas opposed the motion, and an evidentiary hearing

was ordered.


1
   Their agreement defined "college education" as including
"tuition, room and board, books, miscellaneous fees and reasonable
costs of transportation." The parties also "acknowledge[d] that
each child shall be responsible for making a diligent effort to
obtain all applicable loans, scholarships and grants in order to
defray their parents' obligation to provide for said education."

                                   2                         A-3751-16T2
     Helen appeared without counsel at the October 5, 2016 hearing.

At the conclusion of her case-in-chief, Thomas's attorney moved

for a directed verdict, claiming the PSA and the doctrine of laches

precluded the relief Helen sought. The judge granted Thomas's

motion. In his oral decision, the judge referred to: the seminal

decision   of   Newburgh   v.   Arrigo,   
88 N.J.   529   (1982);     legal

principles that require that courts enforce the terms of property

settlement agreements absent proof of an inequity or a change in

circumstances; the presence of another PSA provision purporting

to negate Thomas's obligation on the loans taken out by Helen for

the youngest child's education; Helen's delay; and Helen's failure

to include Thomas "in the process" of obtaining the student loans.

Consequently, the judge entered an order that day that rejected

Helen's claim and granted Thomas's application for counsel fees

in an amount to be later quantified. On April 11, 2017, the judge

ordered Helen to pay $10,384.28 in counsel fees.

     Helen appeals both orders, arguing:

           I. THE TRIAL COURT ERRED IN DENYING [HER]
           APPLICATION TO HOLD [THOMAS] RESPONSIBLE FOR
           THE LOANS TAKEN BY [HELEN] FOR THE COLLEGE
           EXPENSES OF THE PARTIES' [YOUNGEST] DAUGHTER.

           II. THE TRIAL COURT'S AWARD OF COUNSEL FEES
           TO [THOMAS] SHOULD BE REVERSED.

We agree that the judge's involuntary dismissal of Helen's claim

cannot stand and, therefore, we reverse and remand for further

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proceedings. In addition, we vacate the counsel-fee award but

without prejudice to the continuing right of either party to pursue

an appropriate fee award upon completion of the remand proceedings.

     To explain our determination, we initially note that the

judge took the unusual step of granting an involuntary dismissal

of a post-judgment matrimonial motion at the conclusion of the

movant's proofs at an evidentiary hearing previously determined

to be necessary. That ruling requires an examination of the judge's

decision in light of the standard contained in Rule 4:37-2(b).2

That Rule requires a denial of such a motion "if the evidence,

together with the legitimate inferences therefrom, could sustain

a judgment in [the claimant's] favor." Ibid. We reverse because

Helen provided evidence that would excuse her failure to pursue a

remedy at an earlier time and that would justify an imposition of

relief against Thomas so many years after the accrual of the

obligation. How persuasive that evidence might have seemed to the

judge was not relevant. See Dolson v. Anastasia, 
55 N.J. 2, 5-6

(1969) (recognizing that the judicial function at this stage "is

not concerned with the worth, nature or extent (beyond a scintilla)



2
  The judge expressly ordered a directed verdict; the standard
applicable to such a determination in this context, however, is
no different than that applied to motions for involuntary
dismissals. See Frugis v. Bracigliano, 
177 N.J. 250, 269-70 (2003).
We view his ruling as more akin to an involuntary dismissal.

                                4                           A-3751-16T2
of the evidence, but only with its existence, viewed most favorably

to the party opposing the motion").

     First, we note that Helen testified that as late as 2014

Thomas "led [her] to believe that he was taking care of [the older

daughter's] tuition and [consequently, she] would be taking care

of [the younger daughter's] education." Helen claimed to have

assumed this was the case until speaking with her older daughter,

who expressed in 2014 her difficulties paying off the loan on her

education; Helen expressed surprise at this circumstance because

she had assumed the older daughter's college education was being

or had been paid by Thomas. Only then did she learn from her older

daughter that, although Thomas had cosigned her loan, she was

solely   bearing   the   responsibility   for   its   repayment.     Helen

thereafter wrote to Thomas to ask his help in repaying the youngest

child's loan, and his refusal led to these proceedings. To the

extent the doctrine of laches3 might apply in such circumstances

– an issues we need not decide – Helen provided an explanation for

the delay, and the evidence did not suggest either that her right




3
  The doctrine of laches applies when one party has delayed for an
inexplicable and inexcusable period of time in pursuing "a known
right" and thereby prejudices the other party. Gladden v. Pub.
Emp. Ret. Sys. Tr. Bd., 
171 N.J. Super. 363, 370-71 (App. Div.
1979); see also Brunswick Bank & Tr. v. Heln Mgmt., LLC, __ N.J.
Super. __, __ (App. Div. 2018) (slip op. at 15 n.12).

                                  5                                A-3751-16T2
was known until shortly before she filed her motion or that Thomas

was prejudiced from Helen's failure to sooner seek relief.

     We also reject the notion that Newburgh might have application

here. This is not a circumstance in which these divorced parents

made no provision for their children's college education. Instead,

the parties – both represented by counsel at the time – agreed

they would equally share that burden. As the judge correctly

recognized in other aspects of his oral decision, his obligation

was to enforce the PSA absent a finding that its terms were

inequitable or that circumstances had changed. Because the parties

had addressed how they would deal with their children's college

education, Newburgh should not have been applied; indeed, if the

judge applied its principles, his brief oral decision does not

clearly explain how those principles were incorporated into his

ultimate rejection of Helen's claim.

     Lastly, we consider the judge's apparent determination that

another   PSA   provision   precluded   Helen's   pursuit   of   Thomas's

alleged share of the burden of the student loans. Paragraph 27,

to which the judge referred, contains both parties' stipulations

that they had "not incurred any debts or obligations" for which

the other might be liable. Paragraph 19, however, touches on the

same subject, but includes an exception: "The parties agree that

each shall be solely responsible for any debt and obligation in

                                   6                              A-3751-16T2
their name except as provided by this [a]greement" (emphasis

added). The judge's opinion doesn't explain why paragraph 27 should

be applied so broadly here and permitted to swallow up what the

parties had otherwise agreed in both paragraph 19 and, even more

importantly, paragraph 3. At the very least, when applying Rule

4:37-2(b), the judge should have assumed paragraph 27 was limited

by paragraph 20, and that paragraph 20 was further limited or

informed by paragraph 3. Indeed, the fact that Helen undertook to

comply with her paragraph 3 obligation by securing one or more

loans is a bit of a red herring when seeking Thomas's compliance

with paragraph 3. However Helen secured the funds to pay her share

of the children's education, Thomas was equally obligated. For

every dollar Helen paid for that purpose – no matter how she came

up with that dollar – paragraph 3 imposed on Thomas the obligation

to also contribute a dollar. The source of those funds, and the

PSA paragraphs absolving the parties' for their existing or future

debts, seems – at least when applying Rule 4:37-2(b) – irrelevant.

     For these reasons, we reverse the October 5, 2016 order and

remand for further proceedings in conformity with this opinion.

We also vacate the April 11, 2017 order; the imposition of a

counsel-fee   award   against   either   party   should   abide   the

disposition of the merits.



                                 7                           A-3751-16T2
    Reversed in part, vacated in part, and remanded for further

proceedings. We do not retain jurisdiction.




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