JAMES HALL, Plaintiff–Appellant, v. DEBORAH HALL, Defendant–Respondent.
Plaintiff appeals from the Family Part's post-judgment orders compelling him to contribute to his eldest daughter's college expenses; awarding defendant attorney's fees; requiring payment through income withholding; and denying recusal. Judge Robert Kirsch entered the orders after striking plaintiff's pleadings and conducting a proof hearing. The court did so because it found that plaintiff failed to comply with orders to disclose his tax return, and to pay, without prejudice, a share of his daughter's college expenses pending a hearing.
Plaintiff argues that he had no obligation to contribute to his daughter's college expenses because defendant did not satisfy conditions precedent in the parties' property settlement agreement (PSA). He asserted defendant failed to confer with him, as required, about his daughter's college search, and his daughter failed to assume maximum loans to pay for college. Therefore, he argues, the court erred in requiring his financial disclosures and pendente lite payments, and in striking his pleadings when he failed to comply. He asserts the fee award should be reversed because it is predicated on the court's erroneous findings. He also argues that he is not subject to income withholding because he is not a salaried worker and, instead, receives distributions of partnership income.
Having reviewed plaintiff's arguments in light of the record and applicable legal principles, we affirm.
This post-judgment matter began with a routine motion in December 2010 for contribution to college expenses. However, due to plaintiff's opposition and litigiousness, it mushroomed into an expensive, and time-consuming proceeding involving plaintiff's numerous unsuccessful requests for interlocutory review; multiple conferences to obtain plaintiff's compliance with the court's orders; several orders finding plaintiff in violation of defendant's litigant's rights and numerous other oral and written orders; a testimonial proof hearing; and numerous extensive written opinions and statements of reasons by the trial court, setting forth the bases for its rulings.
The parties were divorced on December 21, 2005, after more than seventeen years of marriage. The PSA, entered the previous January, was incorporated in the final judgment of divorce, along with a subsequent addendum concerning communications about the children. The parties have three children: Caren, born in 1992; Cathy, born in 1994; and Lance, born 1998.1 The parties were awarded joint legal custody, and defendant was designated the parent of primary residence. Plaintiff, an attorney, relocated to California in 2006 to accept employment there, after his firm in New York dissolved. He ultimately remarried in May 2008 and had another child in late 2009.
Plaintiff agreed to pay monthly child support of $4999 for the three children based on his 2003 income of $225,000 and defendant's income of $49,892. The PSA stated that the parties did not utilize the Child Support Guidelines because their combined income exceeded the maximum.2 Defendant waived alimony — notwithstanding the long-term marriage and the parties' disparate earnings — and conceded she would be unable to maintain the marital lifestyle.
The parties addressed their obligation to pay for college expenses in three interrelated paragraphs. The first paragraph refers to the children's “maximum application” for loans and other non-parental sources of support; the second refers to application “for all available loans” and other support. The second paragraph also refers to the parties' obligation to confer. In one paragraph, the PSA states that the parties' respective obligations would be determined according to federal financial aid guidelines “and/or” an individual college's financial aid process. Yet, another paragraph states that the parties' respective shares would be proportionate to their relative incomes as determined by the Child Support Guidelines.
The PSA states:
13. The parties agree to pay for the post-secondary educational expenses of the three (3) children born of the marriage to the best of their respective financial abilities at the time, after maximum application of grants, loans, and other financial aid. The amounts to be paid by each party will be determined in accordance with the standards established by the Federal financial aid application process and/or the college financial aid department based on the parties' respective financial circumstances.
14. The parties agree to meet and discuss the child's post-secondary education no later than the middle of the child's junior year in high school. At this time, the parties shall discuss the potential schools the child may attend, the costs, and will endeavor to plan for same and reach an amicable understanding regarding same. The child shall apply for all available loans, scholarships, grants and student aid. Any and all remaining expenses shall be borne by the parties in the manner specified in Paragraph 15 above [sic]. For the purposes of determining proportionate incomes, same shall be calculated as it would be via the New Jersey Child Support Guidelines.
15. College expenses shall be defined to include, without limitation, tuition, room, board, student fees, student activity fees, miscellaneous school fees, books, supplies and transportation. Any other expenses, such as college application expenses such as fees, reasonable travel to prospective schools, and SAT preparatory classes, must be mutually agreed upon. Neither party will unreasonably withhold such consent.
The parties also agreed that “[s]hould either the Husband or the Wife fail to substantially abide by the terms of this Agreement, the defaulting party shall indemnify the other for all reasonable expenses and costs, including, but not limited to, attorneys fees incurred in successfully enforcing this Agreement.”
In the fall of 2010, Caren enrolled in Seton Hall University's four-year, combined bachelors and masters program in business and professional accounting. The university's financial aid department, after considering the information provided on the Free Application for Federal Student Aid (FAFSA), offered Caren an annual University Scholarship of $17,500 a year; a $3500 federally subsidized Stafford loan; and a $2000 unsubsidized Stafford loan. The balance due, based on a cost of attendance of $47,914 for the 2010–2011 academic year, was $24,914, or $12,457 a semester. This was described as “Est. Private Loan / Tuition Pay.”
Caren declined the $2000 unsubsidized variable rate Stafford loan because it required immediate repayments. But, she decided to commute to school, rather than live on campus. What remained was $7527 for the fall 2010 semester.
Defendant filed her motion in December 2010 seeking plaintiff's contribution to college expenses, in proportion to the parties' relative incomes. She also sought an order compelling plaintiff's filing of a complete case information statement if he did not file one in response to her motion.3 Anticipating his defense, she asserted that she made a good faith effort to keep him informed of Caren's plans. She also included a certification from Caren regarding her communications with her father.
Plaintiff cross-moved for an order denying the motion. He disclaimed liability based on the alleged failure to satisfy what he characterized as “conditions precedent” to his contribution “requiring the parties to be involved in the college selection process and requiring the child to apply for the maximum amount of loans available.” He also argued that he should be relieved from contributing based upon a substantial change of circumstances, consisting of the deterioration of his relationship with Caren.4 Plaintiff did not include a CIS, but sought a schedule for discovery followed by a plenary hearing.
It was undisputed that plaintiff's relationship with his children was strained. The parties disputed who was to blame. Plaintiff alleged defendant alienated the children from him. Defendant alleged plaintiff failed to make the effort to be involved in their lives. The parties also disputed the extent of their consultations regarding Caren's selection of a college. They also disagreed about the intended meaning of the PSA's provisions on college expenses.
Plaintiff asserted that the parties intended to pay nothing to defray their children's college costs, once maximum loans were obtained. In one email exchange in the summer of 2010, plaintiff asserted, “I have told both of you for years (since we were married) that I would not be paying for college and that the kids should pay for their own post-high school educations.” He also asserted that he lost his job at the end of 2010.
Defendant asserted that the parties always intended to contribute to college expenses; they contributed to college savings accounts during the marriage, but plaintiff emptied them prior to divorce. She argued the loan obligation provision should be interpreted reasonably, to require assumption only of subsidized, deferred loans. She also challenged plaintiff's claims of financial distress, noting his recent purchase of an expensive home.
On the return date of March 16, 2011, the court did not conduct oral argument. The judge met with counsel in chambers to explore a resolution. Defendant was present in court, but plaintiff was not. The judge shared non-binding impressions and stated on the record that, based on the papers, it appeared neither party had fully complied with the PSA, and the court was not inclined to award fees to either side. All the terms of the proposed settlement were not disclosed on the record, but they included therapeutic visitation between plaintiff and Caren. The court granted plaintiff's counsel's request for a one-week adjournment to “attempt to resolve this matter with his client.”
The court then orally ordered plaintiff to file a CIS no later than March 30 if the matter was not resolved. A hearing would then be conducted on April 18. Plaintiff's counsel did not object.
Once the court learned that plaintiff had not filed a CIS as required, it initiated a case management conference on April 13, 2011. Plaintiff's counsel explained that his client was overseas and he could not speak to him about settlement or a CIS. The court then orally directed plaintiff to file a CIS no later than April 26, stating that if he failed to comply, the court could find him in violation of litigant's rights and subject him to sanctions. Plaintiff's counsel voiced no objection. The court then entered a conforming written order, which also set May 6 as the hearing date.
By letter on April 21, 2011, plaintiff's counsel asked the court to reconsider its order that plaintiff file a CIS. He argued that defendant had not made a prima facie showing for a college contribution, requiring financial disclosure. He also argued that financial disclosure should only be made after the court decided if plaintiff's interpretation of the PSA was correct.5
The court rejected plaintiff's request for reconsideration of the order requiring a CIS. The court noted that counsel had not previously objected and the parties' respective financial circumstances were relevant, as reflected in the PSA. Plaintiff's counsel then asked for two additional days to file his CIS, which the court granted.
However, on the new due date, plaintiff's counsel advised the court that plaintiff refused to file his CIS and would seek emergent interlocutory review of the court's order. Pending plaintiff's effort to secure interlocutory review, the trial court on its own motion entered an order on May 3, 2011, finding plaintiff in violation of litigant's rights. The court's order set escalating monetary sanctions for non-compliance, and ordered plaintiff's pleadings stricken without prejudice if the CIS was not filed by May 11, 2011. The order was accompanied by the first of the court's numerous written opinions in this matter. The court reasoned that the PSA contemplated a comparison of the parties' financial circumstances, which were also a factor in considering an application for contributions to college expenses under Newburgh v. Arrigo, 88 N.J. 529, 545 (1982). Citing Gac v. Gac, 186 N.J. 535 (2006), the court held that it was not required to make a threshold determination as to the obligation to contribute, before requiring financial disclosures. Soon thereafter, in another written opinion, the court denied plaintiff's application by order to show cause to stay the court's orders. The court also issued a clarifying letter on May 19 to counsel and to our court, that it had not imposed the monetary sanctions and would not proceed with the matter until the Appellate Division ruled.
We initially declined to consider plaintiff's motion for leave to appeal on an emergent basis. On remand from the Supreme Court, we denied plaintiff's motion for a stay of the court's April 13 order compelling the filing of a CIS, and the May 3 order imposing sanctions and new deadlines. We also denied plaintiff's motion for leave to appeal. In a written opinion, we found plaintiff was unlikely to prevail on the merits. We wrote, “Although the paragraphs of the PSA refer to the application for financial aid and an agreement to meet and discuss college plans, the PSA does not establish those references as conditions that must be met before the court may consider the relative financial abilities of the parties.” We later granted defendant's request for appellate counsel fees and costs in the amount of $7786.80. The Supreme Court declined plaintiff's two separate requests for further interlocutory review of our two orders.
After the Supreme Court ruled on the first motion for leave to appeal, the court advised counsel by a July 5 letter that plaintiff was to file his CIS by July 8, 2011 — later extended to July 12 — and attach copies of his 2009 and 2010 income tax returns, and three recent pay stubs. The court permitted plaintiff to redact information pertaining to his current wife's financial information.
After the court extended the filing deadline,6 plaintiff ultimately filed a CIS on July 12, 2011. In a letter to the court, counsel advised that plaintiff refused to include his 2009 tax return because of asserted concerns about the privacy of his wife's information. His 2010 return was not yet filed. However, he did include three statements reporting his draw as a law firm partner, and his federal and various state schedule K–1s from 2009. Based on those documents, as well as his statements of income in his CIS, plaintiff disclosed that his income had grown substantially since the divorce.7 He reported that he had become a partner of a law firm after three months of unemployment in 2011; yet, his long-term status was uncertain. He also reported that he had separated from his current wife and anticipated paying alimony to her. The CIS omitted his monthly expenses. It also omitted his current home's value, preventing a calculation of his net worth.
Defendant's counsel wrote to the court and counsel on July 13, noting that plaintiff's CIS was incomplete, and sought the scheduling of a motion hearing and a plenary hearing if the court determined one was necessary.
The court then initiated a telephone conference with counsel.8 After recounting the history of the case, the court found plaintiff in violation of litigant's rights for filing an incomplete CIS. The court also opined that plaintiff had obstructed and delayed resolution of the case and defied the court's orders. The court required plaintiff, pendente lite, and without prejudice, to pay eighty-one percent of Caren's college expenses for her first year. In a confirming written order, the amount was set at $9341.73. The order stated that non-compliance could result in a bench warrant.
Plaintiff responded with a lengthy certification on July 26, 2011, in which he accused the judge of bias and suggested that he recuse himself. He also filed a revised CIS on July 26 that included his expenses and stated that he was paying $13,666 a month in spousal support to his wife of three years, $3100 a month in child support and day care for his young child, and $5000 a month in travel expenses to visit the child in Asia. Although he continued to omit a valuation of his real property, he stated that his wife would retain the house pursuant to a separation agreement, although plaintiff reported the mortgage debt as his liability. Plaintiff's counsel also filed an extensive letter to the court, repeating his client's perception that the court had prejudged the matter and was intent upon finding plaintiff liable.
In an August conference, plaintiff's counsel asserted that his client was unable to make the pendente lite $9341.73 payment by July 21, 2011, and requested an ability-to-pay hearing. As plaintiff had not formally moved for the court's recusal, the court required plaintiff to file a formal motion, which he did, asserting bias, premature credibility findings, and disparate treatment. Plaintiff's counsel confirmed that plaintiff had paid plaintiff's counsel roughly $30,000 out of $54,000 in fees through June 2011, by charging them on a credit card.9
The court denied the recusal motion after oral argument. In a twenty-three page written opinion, the court noted that the parties had incurred “in excess of $100,000 in counsel fees,” which far exceeded the entire projected parental contribution to Caren's college expenses. The court recounted the case's history and rejected plaintiff's claims of bias and pre-judging the merits. The court emphasized that it had not yet conducted a “full” motion hearing because of plaintiff's “disregard of Court Orders” and the delays resulting from plaintiff's adjournment requests and “multiple appeals.” Also, the court noted no sanctions had yet been imposed. The court denied disparate treatment, noting that defendant had supplied a CIS with her notice of motion before a 2010 tax return was due and, while her income had not substantially changed, she had no objection to providing her 2010 and 2011 returns. Plaintiff supplied no financial information until July 12, 2011. The court also explained that “plaintiff's failure to provide the Court with a fuller picture of his finances, and in light of the protracted litigation in this matter,” (footnote omitted) justified requiring the pendente lite payment, without prejudice. The court declined to stay its order. We also denied a stay and a motion for leave to appeal. The Supreme Court also denied plaintiff's request for interlocutory review.
Meanwhile, defendant filed a child support enforcement motion in September 2011, asserting plaintiff was two months behind in his payments. Plaintiff cross-moved to stay enforcement of his child support obligation until finality of his motions for interlocutory review of the orders pertaining to recusal and college expenses. Alternatively, he sought an ability-to-pay hearing.10 The court advised counsel to address compliance with the court's July 14 pendente lite order upon the return date.
At a hearing in mid-October, plaintiff's counsel conceded his client was in arrears for three months of child support, minus $1000. He objected to a wage garnishment because defendant had not demonstrated “need.”
By order entered October 18, 2011, the court again found plaintiff in violation of litigant's rights for failing to comply with the July 14, 2011, order, and for failing to pay child support. The court ordered plaintiff to pay defendant $14,736.30, which was eighty-two percent of Caren's tuition and book costs for the 2010–2011 school year, and the first semester of 2011–2012. The funds were to be paid within ten days, or by October 28, 2011, and were characterized as “in the nature of child support” and thus not dischargeable in bankruptcy. The order provided that if plaintiff failed to make the payments, the court would enter an order striking plaintiff's pleadings and conduct an uncontested proof hearing. The court also reduced plaintiff's child support arrears of $13,997 to judgment. The order directed payment of child support — excluding the college-related amounts — through probation, at the monthly rate under the PSA, plus $1000 a month towards arrears. The court denied plaintiff's motions for discovery of defendant's finances; as well as his motions for a stay of enforcement and for an ability-to-pay hearing.
In an accompanying twenty-two-page written opinion, the court found that plaintiff had delayed and obstructed resolution of the case, and violated the court's orders, prompting two findings in violation of litigant's rights. The court noted that plaintiff still had not produced his 2009 tax return for in camera review and failed to remit payment of the $9341.73 ordered in July. The court noted plaintiff's numerous adjournment requests, his efforts to stay the proceedings, and his repeated requests for interlocutory review. The court noted the disparity between plaintiff's alleged obligations to his current wife, and those to his three children with defendant. The court again rejected plaintiff's claims of bias. The court noted the parties' legal fees reached $143,550 — $105,000 of which were plaintiff's.
The court noted that the pendente lite award consisted of a small fraction of plaintiff's reported gross annual salary. The court concluded that plaintiff's resistance to payment “can only be characterized as bad faith.” The court denied plaintiff's motion for an ability-to-pay hearing because he failed to move for a modification of support, or demonstrate a prima facie case of changed circumstances, particularly in light of his increased income and current lifestyle reflected in his incomplete CIS. The court rejected plaintiff's reliance on claimed obligations to his current wife, citing Wei v. Wei, 248 N.J.Super. 572, 576 (App.Div.1991). The court held that defendant was entitled to be paid through probation under Rule 5:7–4(b), as plaintiff had not shown “good cause to the contrary,” and denied plaintiff's request to suspend his support payments “as there is no justifiable legal basis for his failure to pay child support as required by his PSA.”
Plaintiff again sought the court's recusal by order to show cause, relying in part on Judge Kirsch's decision to retain this case (as well as several other matrimonial matters) notwithstanding his transfer to a different Family Part assignment. In the alternative, plaintiff sought a stay of all actions pending appellate review. The court denied the motion by order entered October 27, 2011, accompanied by a nine-page statement of reasons generally relying on the court's prior findings. The court found plaintiff's new grounds for recusal meritless, and concluded a stay was unwarranted because — largely reprising previous findings — plaintiff was unlikely to prevail and would not suffer hardship if a stay were denied.
By letter dated October 28, 2011, defendant requested that the court strike plaintiff's pleadings and schedule an uncontested proof hearing because plaintiff failed to make payment pursuant to the October 18, 2011, order. In an October 28, 2011, order, the court found plaintiff in violation of litigant's rights for the fifth time and granted defendant's motion to strike plaintiff's pleadings. Plaintiff's pleadings could be reinstated if the $14,736.30 due was paid before the uncontested proof hearing scheduled for November 1, 2011. Plaintiff unsuccessfully sought a stay by this court and the Supreme Court of the court's orders and the default hearing.11
The court conducted a proof hearing on November 1, 2011, denying plaintiff's counsel's requests for an adjournment. At the outset, the court denied plaintiff's oral motion to vacate the default and delay the hearing for sixty days to permit plaintiff an opportunity to borrow the amount due. Plaintiff continued to claim an inability to pay amounts ordered. The court also denied plaintiff's motion for pre-hearing discovery of financial documents from defendant and her boyfriend.
Defendant was the sole witness. The court generally held that the only relevant issue at the hearing pertained to the amounts defendant spent on Caren's behalf, and the parties' earnings. Defendant introduced bills for Caren's first three semesters, and testified that she paid the net amounts due, as well as for Caren's books for the fall and spring semesters freshman year. Caren herself paid for her books for the fall 2011 semester, and took out a second, deferred interest loan from Seton Hall for the fall semester. She worked during the summer and the school year and used her earnings for gasoline, automobile maintenance, and meals. Defendant disclosed her current 2011 salary, plus a bonus she received in 2011 for her performance in 2010.
Defense counsel was apparently prepared to elicit testimony regarding the meaning of the PSA — specifically regarding the parties' obligation to confer and the children's obligation to maximize loans — and defendant's compliance. However, the court held that such testimony was unnecessary. The court also generally barred cross-examination on those subjects. The court limited cross-examination regarding the nature of Caren's relationship with her father, and defendant's financial need for plaintiff's contribution.
Nonetheless, defendant asserted she complied with the PSA's three paragraphs concerning college expenses. She testified that the parties intended to pay for their children's educations to the best of their financial abilities, and referred to the parties' college savings that plaintiff depleted. She explained the parties did not confer during Caren's junior year both because plaintiff did not seek to, and Caren did not begin her college search until her senior year. Defendant conceded that Caren did not take out “private loans.”
In a November 2, 2011, order of judgment, amended a week later, accompanied by a statement of reasons, the court found that both parties “intended and agreed to provide for their children's post-secondary educational expenses.” The court ordered plaintiff to pay eighty percent of Caren's college and related expenses, based upon the parties' stated annual incomes. The court utilized plaintiff's annualized 2011 salary, as reported in his CIS; and defendant's 2010 income, plus the bonus she received in 2011 for 2010. The court reduced to judgment plaintiff's obligation to pay $14,156.56, deemed it child support non-dischargeable in bankruptcy, and ordered that it be collected through probation. The court directed plaintiff's employer to remit an arrears payment of $5230 within seventy-two hours, and increased the monthly arrears payment through probation from $1000 to $4001 effective November 1, 2011. Defendant was required to provide plaintiff with future tuition bills and invoices for books and Caren's grades within prescribed time frames. The court found that Caren “secured financing for approximately two-thirds of the total amount of her college tuition and related expenses through scholarship and loans.” The court found defendant to be “a wholly credible witness” and her testimony corroborated by documents admitted into evidence. The court reserved decision on the issue of counsel fees.
The court later issued an “amplified statement of reasons” for its November 9 order in which the court analyzed the Newburgh factors. The court found the parties' PSA “makes it clear that both parents, including plaintiff, desired and intended to contribute toward the costs of their children's (including [Caren's] ) requested higher education.” Also, “[Caren's] expectation for higher education is reasonable in light of the background, values, and goals of the sought contributor” and because “[b]oth parents are successful professionals.” Because Caren secured scholarships and subsidized loans covering about two-thirds of her tuition, the roughly $12,000 per year in remaining expenses was “relatively modest,” especially compared to the parties' “substantial income.” Although plaintiff's CIS was incomplete, “both parents clearly have the financial means and resources to honor their agreement to provide for their children's higher education.” Caren was “solely responsible for $14,000 in subsidized loans” and, in addition to his having cashed out the children's college fund, plaintiff produced no proof of Caren's assets. It was an “unreasonable expectation” for Caren to earn substantial income while in school.
The court also found that a relationship between the parent and child was not a pre-condition to requiring plaintiff to contribute to Caren's college costs. Defendant filed her motion for contribution from plaintiff before Caren's first semester ended and plaintiff only visited periodically since the divorce. Further, “whatever the present state of the relationship between plaintiff and [Caren], ․ the extraordinary facts and circumstances of Gac are not indicated, and ․ do not outweigh the remaining factors which militate, overwhelmingly and consistently, in favor of requiring plaintiff's contribution.”
In November 2011, plaintiff moved to vacate provisions of the court's orders dealing with payments through probation.12
The parties also filed opposing certifications in connection with defendant's motion for counsel fees. Plaintiff's counsel renewed arguments pertaining to the merits of his client's position. Counsel also certified that plaintiff had incurred counsel fees of $83,094.50 at the trial level and “approximately $90,000.00 at the Appellate level.” Plaintiff had paid $33,628.29 of those fees to date by credit card.
At a hearing on December 8, 2011, plaintiff's counsel disclosed that plaintiff had not yet paid the fees ordered by our court in July 2011. Defendant's counsel fee costs at that point were estimated to be around $60,000. Plaintiff's counsel fees were estimated at $186,000 “for everything.” Plaintiff had not paid child support since the $1000 payment in August. Plaintiff's counsel advised plaintiff's employer that it was plaintiff's position that the court order was unenforceable; he did not know if the employer was withholding the money.
The court entered an order December 12, 2011, directing plaintiff to pay $39,125.42 of defendant's counsel fees and costs. The court also noted that the fee award was to be reduced to a judgment and was “in the nature of” child support and therefore not dischargeable in bankruptcy.
In late December, defendant sought an order finding plaintiff in violation of litigant's rights for failing to comply with various provisions of the October 18, November 9, and December 12, 2011, orders.13 Defendant certified that she had to borrow money to pay Caren's fall 2011 tuition, because of plaintiff's failure to pay. She also stated plaintiff had ceased paying child support, and failed to pay any counsel fees ordered by this court or the trial court. Defendant requested an order requiring plaintiff's employer to implement the ordered withholdings.
In a certification dated January 5, 2012, plaintiff claimed he was unable to pay support because he was unemployed for the first three months of 2011 and had obligations to his current wife. He attached a June 2011 agreement between himself and his wife in which he agreed to pay, retroactive to January 1, 2011, without a fixed term, $16,666 a month in spousal support, as well as $2100 in child support and $1000 in day care. The amounts were “based on the parties' current respective incomes and financial ability.” Plaintiff also transferred a ninety-nine percent interest in his California home, but retained responsibility for its expenses, and the right to live in it for his lifetime.14 Plaintiff also continued to claim that wage garnishment was barred because he was “not a W–2 wage earner.”
At a hearing on January 11, 2012, defendant testified that plaintiff had stopped paying child support, and had not made any contribution to college expenses. Plaintiff was in arrears in the amount of $28,994. Addressing the Spring 2012 tuition bill, defendant testified that $5958 was due, after the $2250 Stafford subsidized loan, the $1000 unsubsidized loan and the $8750 scholarship. Defendant was unable to pay the tuition, and books were needed by the next week.
By “amplified order on income withholding” dated January 12, 2012, the court ordered: future child support payments of $4999 per month be paid through income withholding via Union County Probation; arrears of $28,994 were reduced to judgment; an additional $4001 per month towards arrears be paid through probation; plaintiff's outstanding college contributions of $18,922.96 were reduced to a judgment and characterized as “in the nature of child support, and non-dischargeable in bankruptcy”; total arrears were set at $47,916.96 as of January 11, 2012; and plaintiff's employer immediately remit the entire amount of $23,230 currently being withheld. In addition, defendant was directed to provide plaintiff with written notice of Caren's grades and the tuition bills within seven days of receipt via certified mail. The parties were to enter into a “mutually agreed upon payment plan” for future college expenses or plaintiff would be directed to remit his 80% share within five days of receipt of the bill, receipt or invoice.
In a second order entered January 12, 2012, the court denied plaintiff's motion from late November to vacate the orders of October 18, 2011, and November 9, 2011. Plaintiff was again found to be in violation of litigant's rights for failing to comply with the October 18, and November 9, 2011, orders.
In a twenty-one-page statement of reasons, the court questioned the legitimacy of plaintiff's agreement to pay spousal and child support to his current wife, noting discrepancies between its terms and plaintiff's subsequent CIS. Finding it clear that plaintiff would not comply absent income withholding, the court found withholding appropriate for both child support and college contributions, which were in the nature of child support, citing N.J.S.A. 2A:34–23(a)(5) and Raynor v. Raynor, 319 N.J.Super. 591, 606 (App.Div.1999). The court rejected plaintiff's argument that because he was not a W–2 employee, his earnings could not be withheld, citing N.J.S.A. 2A:17–56.52. The court found it was empowered to enforce its orders notwithstanding plaintiff's residence in California, pursuant to N.J.S.A. 2A:4–30.68.
The court also granted defendant's motion to find plaintiff in violation of litigant's rights for failing to comply with the October 18, and November 9, 2011, orders, and for counsel fees. After consideration of the factors set forth in Rule 5:3–5(c), the court awarded defendant $4692.50 in counsel fees for this motion.15
On January 25, 2012, plaintiff appealed nineteen orders entered by the court during this litigation. Plaintiff presents the following points for our consideration:
THE STATE OF NEW JERSEY HAS A STRONG PUBLIC POLICY FAVORING ENFORCEMENT OF VOLUNTARY AGRE[E]MENTS BETWEEN LITIGANTS, WHICH THE TRIAL COURT VIOLATED IN THIS CASE BY ORDERING MR. HALL TO CONTRIBUTE TO HIS DAUGHTER, [CAREN'S], COLLEGE EXPENSES.
IN THE ALTERNATIVE, MR. HALL SHOULD NOT HAVE BEEN REQUIRED TO CONTRIBUTE TO [CAREN'S] COLLEGE EXPENSES DUE TO THE PARENTAL ALIENATION COMMITTED AGAINST HIM BY DEFENDANT, WHICH CONSTITUTED A SUBSTANTIAL CHANGE IN CIRCUMSTANCES.
THE PROCEDURE THAT THE TRIAL COURT FOLLOWED WHEREBY IT ENTERED A SERIES OF PENDENTE LITE ORDERS, HELD MR. HALL IN DEFAULT, AND ULTIMATELY GRANTED DEFENDANT'S MOTION VIOLATED MR. HALL'S CONSTITUTIONAL RIGHTS TO DUE PROCESS AND EQUAL PROTECTION.
EVEN IF THE ENTRY OF DEFAULT AGAINST MR. HALL WAS PROPER, THE TRIAL COURT'S ORDER FOLLOWING THE DEFAULT HEARING, WHICH REQUIRED MR. HALL TO PAY [CAREN'S] COLLEGE EXPENSES, SHOULD BE REVERSED BECAUSE DEFENDANT FAILED TO ESTABLISH MR. HALL'S LIABILITY, DEMONSTRATE [CAREN'S] NEED, OR DISCLOSE HER FINANCES.
THE TRIAL COURT'S ORDER THAT REQUIRED MR. HALL TO PAY [CAREN'S] COLLEGE EXPEN [ ]SES SHOULD ALSO BE REVERSED BECAUSE, CONTRARY TO THE TRIAL COURT'S HOLDING, THE PROVISION OF THE PARTIES' AGREEMENT THAT REQUIRES THE CHILDREN TO HELP FINANCE THEIR EDUCATION IS NOT CONTRARY TO PUBLIC POLICY AND IS ENFORCEABLE.
THE TRIAL COURT'S ORDER DIRECTING THAT MR. HALL'S OBLIGATION FOR COLLEGE EXPENSES BE ADDED TO HIS CHILD SUPPORT ARREARS SHOULD BE REVERSED BECAUSE CHILD SUPPORT AND CONTRIBUTION TO COLLEGE COSTS ARE TWO DISTINCT AND SEPARATE OBLIGATIONS.
THE TRIAL COURT'S ORDER REQUIRING MR. HALL TO PAY HIS CHILD SUPPORT AND COLLEGE CONTRIBUTION OBLIGATIONS VIA INCOME WITHHOLDING SHOULD BE REVERSED BECAUSE MR. HALL HAS NO “DISPOSABLE INCOME.”
THE TRIAL COURT'S ORDER REQUIRING MR. HALL TO PAY DEFENDANT'S COUNSEL FEES SHOULD BE REVERSED BECAUSE THE COURT'S PRIOR ORDERS WERE IMPROPER AND BECAUSE THE COURT FAILED TO CONSIDER ALL OF THE RELEVANT FACTORS UNDER THE RULES.
DUE TO THE APPEARANCE OF BIAS EXHIBITED BY THE TRIAL COURT AGAINST MR. HALL, THIS MATTER SHOULD BE REMANDED TO A DIFFERENT JUDGE AND THAT JUDGE SHOULD BE INSTRUCTED TO INVESTIGATE DEFENDANT'S COMMUNICATIONS WITH A SITTING UNION COUNTY JUDGE.
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, 412–13 (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). However, 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). Also, 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).
A judge may not make credibility determinations or resolve genuine factual issues based on conflicting affidavits. Conforti v. Guliadis, 245 N.J.Super. 561, 565–66 (App.Div.1991), aff'd in part and modified in part on other grounds, 128 N.J. 318 (1992). However, a plenary hearing is required only if there are genuine and substantial issues of fact. Compare, e.g., Mackowski v. Mackowski, 317 N.J.Super. 8, 11 (App.Div.1998) (reversing and remanding for plenary hearing where “trial court's order was based on its evaluation of conflicting affidavits and adoption of the assertions of one party over the other without the benefit of a plenary hearing”), superseded on other grounds by R. 5:8–6, with Barblock v. Barblock, 383 N.J.Super. 114, 124 (App.Div.) (no plenary hearing was required to authorize mother's relocation of her children out of state, over the father's objection, where no material factual disputes were demonstrated), certif. denied, 187 N.J. 81 (2006).
We begin with plaintiff's argument that the court erred by failing to enforce the parties' PSA. He argues he was not obliged to pay college expenses because defendant allegedly failed to confer with him during Caren's junior year of high school, and Caren refused to seek “maximum” loans, including unsubsidized, undeferred loans.
We disagree. We recognize the high value our courts place on the private settlement of matrimonial disputes. See, e.g., Konzelman v. Konzelman, 158 N.J. 185, 193–94 (1999). Yet, we are unpersuaded that the parties' obligation to confer during junior year, and the “maximum application of grants, loans, and other financial aid” were “conditions precedent” to plaintiff's obligation to contribute to college expenses. Moreover, even if they were, those conditions may not be enforced in a way that disserved the child's best interests.
The presence of a condition of performance is subject to general principles of contract interpretation, although conditions are often accompanied by explicit language such as “ ‘on condition that,’ ” “ ‘provided that,’ ” and “ ‘if.’ ” Restatement (Second) of Contracts § 226 comment a (1981) (Restatement ). If the presence of a condition is doubtful, “an interpretation is preferred that will reduce the risk of forfeiture.” Id. § 227, comment b. See also Gazis v. Miller, 378 N.J.Super. 59, 65 (App.Div.2005) (“ ‘To the extent that the non-occurrence of a condition would cause disproportionate forfeiture, a court may excuse the non-occurrence of that condition unless its occurrence was a material part of the agreed exchange.’ ” (quoting Restatement, supra, § 229)), aff'd, 186 N.J. 224 (2006).
Here, there is no explicit indication in the PSA that the parties' agreement to meet and discuss a child's college plans during his or her junior year, under paragraph 14, was a condition to a payment obligation. The obligation is not tied directly to the obligation to pay. Also, the PSA does not require an agreement between the parents about the child's college plans. Instead, the parties were only required to “endeavor to plan ․ and reach an amicable understanding regarding same.” Moreover, the duty to meet and discuss was imposed upon both parties. Undeniably, there are genuine issues of fact regarding the extent of the consultations and who was to blame. Plaintiff provided no evidence that he sought a junior year meeting and was rebuffed.
Paragraph 13 states that the parties agree to pay for college “after maximum application of grants, loans, and other financial aid.” The language could be interpreted two ways: (1) as plaintiff argues, a parent has no obligation whatsoever until “maximum application”; or (2) a parent's obligation would be reduced to the extent the child failed to apply, presuming the application would have been successful. The separate sentence in paragraph 14 states that “[t]he child shall apply for all available loans, scholarships, grants and student aid.” It then goes on to say that the parties shall bear “all remaining expenses as provided in Paragraph 15 above” where the “15” was an obvious typographical error and meant to be “13.” Given our predisposition against a forfeiture, these two provisions should be interpreted at most to relieve the parties of their obligation, to the extent the child failed to apply, and to the extent it was established that such applications would have produced additional aid.
Moreover, we reject plaintiff's argument that “loans” meant private loans, regardless of the interest rate or term. Taken in context, the reference to “loans” in paragraph 13 appears to contemplate subsidized “loans,” since the provision refers to “grants, loans, and other financial aid.” (Emphasis added). The meaning of “maximum application of ․ loans” is also illuminated by the second sentence in the paragraph, which states, “The amounts to be paid by each party will be determined in accordance with the standards established by the Federal financial aid application process and/or the college financial aid department based on the parties' respective financial circumstances.” The record includes a determination by the Seton Hall University financial aid department describing the “financial aid” offered to Caren. It included her University Scholarship, and two forms of Stafford loans — $3500 of which was subsidized and $2000 of which was not, but presumably was offered based on other favorable terms or underwriting standards that qualified it as “aid.” The balance due of $24,914 was the amount remaining after accounting for financial aid. This was to be borne by the parties. Caren had no obligation to incur those costs.
However, even if the parties did agree to condition college support on a conference during Caren's junior year, and on Caren's applying for “maximum” loans as plaintiff claims, the parties' authority to enter such an agreement pertaining to the support of a child was limited by the child's best interests. See Kopak v. Polzer, 4 N.J. 327, 333 (1950) (stating that a “child cannot be prejudiced by an agreement between parents”); Ordukaya v. Brown, 357 N.J.Super. 231, 241 (App.Div.2003) (stating that court must ensure that a child's interests are protected where parents reach a compromise pertaining to support); Gulick v. Gulick, 113 N.J.Super. 366, 371 (Ch. Div.1971) (“[T]he conscience of equity will not permit present needs of children to be limited by the agreement of the [parties].”).
The child's best interests is the “ ‘greatest and overriding consideration’ ” in a family court matter. Colca v. Anson, 413 N.J.Super. 405, 414 (App.Div.2010) (quoting Monmouth Cnty. Div. of Soc. Servs. v. G.D.M., 308 N.J.Super. 83, 88 (Ch. Div.1997)). “[T]he right to receive support belongs to the children, not the custodial parent.” Ibid.; see also L.V. v. R.S., 347 N.J.Super. 33, 41 (App.Div.2002). Consistent with this principle, a parent may not waive a child's right to support. Gotlib, supra, 399 N.J.Super. at 305; Dolce v. Dolce, 383 N.J.Super. 11, 18 (App.Div.2006) (“Of course, a parent cannot bargain away a child's right to support because the right to support belongs to the child, not the parent.”); Martinetti v. Hickman, 261 N.J.Super. 508, 512 (App.Div.1993) (“[T]he right to child support cannot be waived by the custodial parent.”); Johnson v. Bradbury, 233 N.J.Super. 129 (App.Div.1989) (holding that unwilling parents were compelled to provide support for child's college costs).
Consequently, a parent's failure to abide by provisions of a PSA cannot prejudice the child's right to support. In Gotlib, supra, we rejected the defendant-father's argument that he was not responsible for paying various unreimbursed medical expenses because the custodial plaintiff-mother failed to comply strictly with provisions of the divorce judgment requiring that she confer in advance before incurring expenses, and bill him on a monthly basis. Holding that the right to receive payments belonged to the children, we refused to “ ‘impute to [the] child the custodial parent's negligence, purposeful delay or obstinacy so as to vitiate the child's independent right of support from a natural parent.’ ” 399 N.J.Super. at 306 (quoting L.V., supra, 347 N.J.Super. at 40).
Similarly, in Colca, supra, we held that a child's right to college support would not be prejudiced by a parent's failure to abide by the procedures for seeking college expense reimbursement from the other parent under a prior order. “Even though defendant failed to comply with the mechanism for review and reimbursement set forth in the November order, he remains entitled to receive reimbursement.” 413 N.J.Super. at 420. “[B]ecause plaintiff's obligation is in the nature of support for an unemancipated child, she is obligated to provide these necessary payments, even in the face of defendant's failure to abide strictly by the procedures provided in the November order.” Id. at 421.
Even if the parties agreed to require Caren to apply for maximum unsubsidized and undeferred loans, their agreement may not be enforced if it were contrary to the child's best interest. We would not blindly enforce such an agreement, any more than an agreement among parents to refuse all support for a college education. See Johnson, supra, 233 N.J.Super. at 136. An unemancipated child is entitled to his or her parents' support for college expenses, at least at the level that would be imposed according to the standards set forth in Newburgh, supra, and Gac, supra.16
In sum, we are unpersuaded that the duty to meet, or the “maximum application of ․ loans” were conditions to plaintiff's obligation to contribute to Caren's college expenses. Moreover, the parties were not empowered to deprive Caren of her right to their support, to the extent they imposed obligations upon her greater than those that would be imposed pursuant to Newburgh and Gac. Therefore, plaintiff had no right to refuse all support for Caren's college expenses based on the alleged failure to confer, and to submit “maximum application of ․ loans.”
We consider next plaintiff's challenge to the procedures followed by the court, including the court's orders compelling plaintiff to file a complete CIS including his personal tax return, requiring him to contribute pendente lite to Caren's college expenses, striking his pleadings when he failed to do so, and then, after a proof hearing, finding him obliged to pay eighty percent of Caren's college expenses, after deducting her scholarships and loans.
We discern no error in the court's determination, after the initial settlement conference on the matter on March 16, 2011, to require plaintiff to file a CIS. Defendant at the very least established a prima facie basis for requiring plaintiff's contribution toward college expenses. It was therefore appropriate to compel plaintiff to supply a CIS, to enable the court to determine the parties' respective contributions, if any, toward Caren's college education. See Lepis v. Lepis, 83 N.J. 139, 157–58 (1980) (noting that “[b]ecause financial ability of the supporting spouse may be crucial to the proper disposition of a motion for modification,” a “prima facie showing of changed circumstances” satisfied the good cause required to compel disclosure of personal financial information, including tax returns); Isaacson v. Isaacson, 348 N.J.Super. 560, 586 (App.Div.) (stating that “absent compelling reasons,” a “CIS should be filed by a responding party once the moving party has established a prima facie case warranting the motion to proceed”), certif. denied, 174 N.J. 364 (2002).
Moreover, as an alternative to his “conditions precedent argument,” plaintiff cross-moved to be relieved of a college support obligation based on a change in circumstances consisting of the alienation of his daughter. That cross-motion also triggered plaintiff's obligation to supply a CIS. “When a ․ cross-motion is brought for the ․ modification of an order or judgment for ․ child support based on changed circumstances, the pleading filed in support of the motion shall have appended to it ․ a copy of a current case information statement.” R. 5:5–4(a).
Although the court did not conduct oral argument on March 16, it was not required to do so, and plaintiff's counsel did not insist upon oral argument, nor did he object to the court's oral order that plaintiff produce a CIS. The decision whether to grant oral argument is discretionary. Palombi v. Palombi, 414 N.J.Super. 274, 285 (App.Div.2010). A court should generally grant oral argument on substantive motions. Ibid. (citing Mackowski v. Mackowski, 317 N.J.Super. 8, 14 (App.Div.1998)). However, a judge has “ ‘the option of dispensing with oral argument ․ when no evidence beyond the motion papers themselves and whatever else is already in the record is necessary to a decision.’ ” Ibid. (quoting Fusco v. Fusco, 186 N.J.Super. 321, 328 (App.Div.1982)). For example, we held that the failure to comply with the mandate to file a CIS under Rule 5:5–4 obviated the necessity to conduct oral argument on a motion to modify support. Palombi, supra, 414 N.J.Super. at 287–88. Under the circumstances, given the mandate of the Rules and the clear relevance of the parties' financial information, the court was not obliged to hear oral argument.
We also reject plaintiff's argument that the court should have addressed his condition precedent argument first, before requiring financial disclosures, on the theory that if he prevailed, there would have been no need for financial disclosures. Our system disapproves of piecemeal litigation. See, e.g., Kent Motor Cars, Inc. v. Reynolds, 207 N.J. 428, 443 (2011); State v. Mitchell, 126 N.J. 565, 584 (1992); Hudson v. Hudson, 36 N.J. 549, 552–53 (1962) (“[W]e do not approve of piecemeal adjudication of controversies.”). The court, in its discretion, manages the mode of trial. See Lieberman v. Emp'rs Ins. of Wausau, 84 N.J. 325, 343 (1980); N.J.R.E. 611. Our rules also generally disapprove of any required sequence of discovery. Cf. R. 4:10–4 (absent an order to the contrary, methods of discovery may be used “in any sequence”). Rule 5:5–4(a) is intended to enable a trial judge to obtain a complete picture of the case at the outset. Gulya v. Gulya, 251 N.J.Super. 250, 253–54 (App.Div.1991). In sum, aside from our assessment that plaintiff's condition precedent argument lacked merit, the trial court was not obliged to fully resolve plaintiff's argument before ordering financial disclosure.
After defendant refused to comply with the court's order, despite his unsuccessful attempts to secure interlocutory review or a stay, the court imposed a pendente lite obligation to contribute. We discern no error. The court has broad discretion to grant appropriate remedies for a failure to comply with its orders. R. 1:10–3. The college expenses burdened defendant and Caren. The order was imposed without prejudice to the ultimate determination of plaintiff's obligation, if any, which would have been made after a hearing, had plaintiff complied with the order to produce a complete CIS and, later, the order to pay the pendente lite support. The fact that such a hearing never occurred was the result of plaintiff's own actions.
After unsuccessful attempts to secure interlocutory review of the pendente lite order, plaintiff persisted in his non-compliance, prompting the court to strike plaintiff's pleadings. The court did not abuse its discretion in doing so. See Abtrax Pharm. v. Elkins–Sinn, 139 N.J. 499, 517 (1995) (stating that appellate court reviews for an abuse of discretion a trial court's order striking a party's pleadings as a sanction for violating a discovery order). The record demonstrated that plaintiff had the ability to comply with the pendente lite order. See Pressler & Verniero, Current N.J. Court Rules, comment 4.3 to R. 1:10–3 (2014) (“Clearly, before relief can be afforded, the court must be satisfied that the party had the capacity to comply with the order and was willfully contumacious.”). Plaintiff's income was substantial. His own submissions belied his claim of an inability to pay. For example, his alleged June 2011 agreement with his current wife stated that based on his “current ․ income[ ] and financial ability,” he accepted the obligation to pay his current spouse $16,666 a month in spousal support, as well as $2100 in child support and $1000 in day care. Plaintiff also asserted that he was spending $5000 a month to travel to see his new child in Asia.
The court was empowered to strike plaintiff's pleadings, given its broad authority to secure compliance with its order. See R. 1:10–3; R. 5:3–7(b)(8). We recognize that the striking of a party's pleadings should generally be a last resort. Abtrax Pharm., supra, 139 N.J. at 514. The harm to the non-delinquent party must be great, the non-compliance deliberate, and no lesser sanction should suffice. Ibid. However, the court found, supported by ample evidence in the record, that those requirements were met. Moreover, the court's order to strike plaintiff's pleadings was without prejudice. Even up to the eve of the proof hearing, the court was ready to restore plaintiff's pleadings upon payment.
We also reject plaintiff's argument that the trial court improperly limited his counsel's ability to cross-examine defendant in the proof hearing. Although cross-examination was restricted, plaintiff's counsel questioned defendant about the intent of the parties and the meaning of paragraphs 13 and 14. Defendant's finances were also explored. Moreover, defendant testified regarding Caren's own finances — specifically, that she worked during the summer and part-time to defray her automobile and meal expenses.
“ ‘[I]t is well-settled that whether a defaulting party may cross-examine liability witnesses against him is a matter of judicial discretion.’ ” Jugan v. Pollen, 253 N.J.Super. 123, 129 (App.Div.1992) (affirming trial court's decision to limit cross-examination on liability). Generally, a defaulting party enjoys a broader opportunity to engage in cross-examination pertaining to damages. See id. at 133–34 (distinguishing between liability and damages, and reversing trial court's limitation on damages cross-examination).
The trial court appropriately exercised its discretion. As we have discussed, plaintiff's argument that he was relieved of any obligation based on a failure of conditions precedent lacked merit. There was no error in limiting inquiry into the parties' subjective intent regarding paragraphs 13 and 14. The court also appropriately limited inquiry regarding defendant's finances and her relationship with another man. The parties agreed that their respective shares of college expenses would be allocated according to their relative net incomes, as calculated pursuant to the Child Support Guidelines. Any indirect support received from defendant's boyfriend was irrelevant.
Given the parties' substantial incomes, the court appropriately curtailed inquiry into Caren's finances. Presumably, the college financial aid process — to which the parties agreed to be bound in paragraph 13 — took into account her finances. Moreover, she had assumed $3500 in subsidized Stafford loans her first year. She increased her loan burden the second year by accepting additional loans from Seton Hall. She lived at home to avoid room and board charges, and she worked during the summer to help defray her automobile and meal costs. No further evidence was required to establish that the balance remaining after accounting for her loans and scholarships should be the responsibility of the parties, given their substantial incomes, and the application of other Newburgh factors.
Finally, we reject plaintiff's challenge that the court misapplied the Newburgh factors in allocating eighty percent of the balance of Caren's college expenses. In its supplemental written opinion, the court analyzed the Newburgh factors, which are:
(1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; (2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education; (3) the amount of the contribution sought by the child for the cost of higher education; (4) the ability of the parent to pay that cost; (5) the relationship of the requested contribution to the kind of school or course of study sought by the child; (6) the financial resources of both parents; (7) the commitment to and aptitude of the child for the requested education; (8) the financial resources of the child, including assets owned individually or held in custodianship or trust; (9) the ability of the child to earn income during the school year or on vacation; (10) the availability of financial aid in the form of college grants and loans; (11) the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and (12) the relationship of the education requested to any prior training and to the overall long-range goals of the child.
[Newburgh, supra, 88 N.J. at 545.]
There was sufficient credible evidence in the record to support the court's findings. We reject plaintiff's arguments that based on factors (1), (2), (10), and (11), the court erred. Notwithstanding plaintiff's claims that he would not have contributed to his children's college education, the parties' agreement itself, the evidence of their college saving accounts, and the parties' expectations that their children would attend college, all supported the court's finding that factors (1) and (2) favored imposing a payment obligation on plaintiff.
Regarding factor (10), we do not view private market, unsubsidized market rate loans to be “financial aid.” As we already discussed, Caren only declined to avail herself of $2000 in unsubsidized loans in her freshman year. Instead, she chose to live at home, reducing her college costs by a much greater amount. She also took out additional loans her sophomore year. She used summer earnings to pay for commuting expenses. Given the parties' resources, the $2000 in declined borrowing should not affect the parties' obligation.
We recognize the evidence of estrangement between Caren and her father. However, we shall not disturb the court's conclusion that the factor should be assigned little weight under the circumstances. “A relationship between a non-custodial parent and a child is not required for the custodial parent or the child to ask the non-custodial parent for financial assistance to defray college expenses.” Gac, supra, 186 N.J. at 546.
Neither Gac, supra, nor Moss v. Nedas, 289 N.J.Super. 352 (App.Div.1996), compel a different result. The Court in Gac, supra, affirmed the denial of a request for a parent's contribution to her daughter's college loans because of the lateness of the application — after the child had graduated from college. 186 N.J. at 548. The evidence here demonstrated that defendant sought contributions months before Caren was enrolled.
In Moss, supra, the trial court initially required a father to pay a share of a daughter's college tuition. 289 N.J.Super. at 356. After the daughter transferred to a different college without notifying the father, the court reduced his obligation for one semester and ordered that he shall not be responsible for any further contribution “unless and until he is fully advised of all choices considered” by the daughter. Ibid. After the child transferred schools again without notice to the father, the court terminated his obligation because of the total lack of communication. Id. at 359. Here, there was no refusal to confer after a court order to do so. Rather, there was evidence of consultations before enrollment.
More importantly, in affirming the trial court in Moss, we did not imply that factor (11) should be assigned comparable weight in all cases. Rather, we deferred to the court's exercise of discretion, “[g]iven the subjectivity and imprecision of [the Newburgh ] multi-factor analysis, which implies substantial legal discretion in the judge in implementation.” Id. at 360. Similarly, we shall not disturb the trial court's exercise of discretion in this case, which assigned comparatively little weight to the same factor.
We briefly address plaintiff's remaining issues on appeal. The trial court did not err in deeming plaintiff's college contributions in the nature of child support, which shall be collected through probation. We have stated that “[c]hild support and contribution to college expenses are two discrete yet related obligations imposed on parents.” Hudson v. Hudson, 315 N.J.Super. 577, 584 (App.Div.1998). We have done so in recognition of the fact that the obligations are determined separately, and the amount of one form of support may affect the amount of the other. See Raynor, supra, 319 N.J.Super. at 613–14.
Child support is calculated according to the Child Support Guidelines. College expense contributions are not. Yet, contribution to a child's education undeniably constitutes support of the child. We held in Colca that “because [the] plaintiff's obligation [to pay for college] is in the nature of support for an unemancipated child, she is obligated to provide these necessary payments” despite procedural deviations. Colca, supra, 413 N.J.Super. at 421. In Raynor, supra, 319 N.J.Super. at 606, we held that the proceeds of an insurance policy to secure the support of a deceased parent's children shall be usable for college expenses, stating, “We view an imposed college contribution as simply another form of child support.” See also N.J.S.A. 2A:34–23 (stating that “the court may make such order as to the ․ education and maintenance of the children”).
Our statutes provide that child support orders shall generally be enforced by income withholding, barring an order to the contrary.
The court shall ensure that in the case of each obligor against whom a support order is or has been issued or modified, the obligor's income shall be withheld to comply with the order. An amount shall be withheld to pay the support obligation and it shall include an amount to be applied toward liquidation of arrearages reduced to judgments․
A support provision contained in an order or judgment issued by the court shall be paid by income withholding unless the order or judgment specifically provides for an alternative payment arrangement to which the parties agree in writing or the obligor or obligee demonstrates and the court finds good cause for establishing an alternative arrangement.
“Child support” for purposes of N.J.S.A. 2A:17–56.8 is broadly defined to include any “monetary support” for the child, as well as “attorney's fees” incurred:
“Child support” means the amount required to be paid under a judgment, decree, or order, whether temporary, final or subject to modification, issued by the Superior Court, Chancery Division, Family Part or a court or administrative agency of competent jurisdiction of another state, for the support and maintenance of a child, or the support and maintenance of a child and the parent with whom the child is living, which provides monetary support, health care coverage, any arrearage or reimbursement, and which may include other related costs and fees, interest and penalties, income withholding, attorney's fees and other relief.
The New Jersey Child Support Program Improvement Act — of which N.J.S.A. 2A:17–56.8 and –56.52 are a part — is remedial in nature. See L. 1998, c. 1, § 2 (stating Legislature's findings); Pryce v. Scharff, 384 N.J.Super. 197, 206 (App.Div.2006). It should be liberally construed to further its ends. See, e.g., Young v. Schering Corp., 141 N.J. 16, 25 (1995) (“Where the Legislature's intent is remedial, a court should construe a statute liberally.”). Therefore, we affirm the trial court's determination that college payment obligations are includable within “child support” subject to income withholding.
We also reject plaintiff's argument that he is not subject to income withholding because his income consists solely of distributions of income from a limited liability partnership, a law firm, of which he is a partner. “Income,” for purposes of enforcing a child support order, is defined to include, but is not limited to:
commissions, salaries, earnings, wages, rent monies, unemployment compensation, workers' compensation, any legal or equitable interest or entitlement owed that was acquired by a cause of action, suit, claim or counterclaim, insurance benefits, claims, accounts, assets of estates, inheritances, trusts, federal or State income tax refunds, homestead rebates, State lottery prizes, casino and racetrack winnings, annuities, retirement benefits, veteran's benefits, union benefits, or any other earnings or other periodic entitlements to money from any source and any other property subject to withholding for child support pursuant to State law.
Plaintiff misplaces reliance on the definition of “disposable earnings,” which may be garnished pursuant to Title III of the Federal Consumer Credit Protection Act (FCCPA), 15 U.S.C.A. §§ 1671 to 1677. However, the FCCPA only imposes limits on the garnishment of a person's disposable wages. 15 U.S.C.A. § 1673(b)(2). If plaintiff's partnership income were not deemed “disposable earnings,” then the FCCPA's limits simply would not apply. Moreover, “disposable earnings” are defined as “that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld.” 15 U.S.C.A. § 1672(b) (emphasis added). “Earnings” in turn is defined as “compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program.” It is not limited to W–2 wages. Ibid.
We also reject plaintiff's challenge to the court's award of counsel fees. Plaintiff asserts since the court's underlying orders should be reversed, the court mischaracterized defendant as the prevailing party. As we have discussed at length, we disagree, and affirm the trial court's orders.
Plaintiff's conduct of the litigation in this case, recounted in detail above, provides ample support for the court's conclusion that plaintiff opposed defendant's application in bad faith. The trial court observed the parties accrued legal fees that totaled over $250,000 — contesting an annual college expense of roughly $12,000 — because of “plaintiff's abuse of the judicial process, bad faith and unreasonable legal and factual positions.” The trial court set forth the tortured history in detail. The court grounded its award of fees on the provision in the PSA that entitled the award of fees incurred by a party in successfully enforcing rights under the agreement; and under Rule 4:42–9(a)(1).
We are satisfied that the court fairly analyzed the factors set forth in Rule 5:3–5(c), according to the principles enunciated in Yueh v. Yueh, 329 N.J.Super. 447, 461 (App.Div.2000) (stating that “ ‘[W]here one party acts in bad faith, the relative economic position of the parties has little relevance’ because the purpose of the award is to protect the innocent party from unnecessary costs and to punish the guilty party.” (quoting Kelly v. Kelly, 262 N.J.Super. 303, 307 (Ch. Div.1992))). See also Welch v. Welch, 401 N.J.Super. 438, 447–48 (Ch. Div.2008) (noting there is no need to consider financial circumstances and ability to pay where one party acts in bad faith). We discern no abuse of discretion. Platt v. Platt, 384 N.J.Super. 418, 429 (App.Div.2006) (stating that absent a clear abuse of discretion, a trial court's award of fees should not be disturbed).
Finally, we find no merit whatsoever to plaintiff's challenge to the trial judge's impartiality. Plaintiff waged an unrelenting battle against defendant, and the court. The court responded without bias, favor or predisposition. It did so deliberately and cogently, setting forth in clear detail, usually in extensive written opinions, the factual findings and conclusions of law in support of its orders. No further comment is required.
To the extent they have not been addressed, plaintiff's remaining arguments lack sufficient merit to warrant discussion in a written opinion. See R. 2:11–3(e)(1)(E).
1. FN1. To protect the children's privacy, we adopt pseudonyms.
2. FN2. The parties did not comply with the mandate that parents with combined net income in excess of the maximum are required to apply the guidelines up to the maximum and then supplement the guidelines-based award with a discretionary amount based on the remaining family income pursuant to statutory factors. See Pressler, Current N.J. Court Rules, Appendix IX–A to R. 5:6A, ¶ 20(b) (2005); N.J.S.A. 2A:34–23.
3. FN3. Defendant also sought enforcement of other provisions of the PSA, which are not before us.
4. FN4. Plaintiff also responded to defendant's other requests for relief. He also sought an order requiring “reunification therapy” with Caren and Cathy, at defendant's sole expense.
5. FN5. In a separate letter, plaintiff's counsel advised that his client was employed again, and requested permission to appear by telephone at the May 6 hearing. The court granted that request.
6. FN6. The court denied plaintiff's counsel's request for an extension until July 29, 2011. The court then granted plaintiff's subsequent request to move the deadline to July 12.
7. FN7. We do not find it necessary to state precisely the income disclosed.
8. FN8. Plaintiff's counsel, who appeared by telephone while on vacation, objected to the conference on short notice. The court read into the record defendant's counsel's letter, as plaintiff's counsel had not received it.
9. FN9. In a July 2010 email from defendant to plaintiff, defendant had claimed she spoke about her case to an unnamed judge, who allegedly predicted, according to defendant, that “it would break out to about 1/3 me and 2/3 you.” Plaintiff sought the identity of the judge with whom defendant spoke. Judge Kirsch declined to pursue the matter after stating that he personally had no ex parte contacts with defendant or another judge.
10. FN10. This motion was apparently filed in response to defendant's motion for child support arrears. That motion was not included in the record but the hearing was conducted on October 14, 2011, as set forth herein.
11. FN11. The Supreme Court rendered its decision after the proof hearing.
12. FN12. Plaintiff's counsel also wrote to defense counsel threatening legal action if defendant directly served a copy of the court's order on plaintiff's employer. Plaintiff's counsel also advised the probation department to cease communicating with plaintiff's employer, claiming the law firm was “not an income withholding entity”; educational expenses were not subject to withholding; and the firm was not subject to the jurisdiction of probation.
13. FN13. It is not clear in the record what motion is connected to this cross-motion.
14. FN14. Plaintiff also agreed to maintain $2 million in life insurance for his new child's benefit. Although the life insurance issue is not on appeal, the court had previously ordered plaintiff to comply with his obligation to provide $1 million in life insurance for the benefit of his three children in New Jersey. In a subsequent hearing, plaintiff asserted he was unable to comply. The court found the failure to be “willful, intentional, and unreasonable.”
15. FN15. In a fourth order dated January 12, 2012, the court found plaintiff in violation of litigant's rights for the ninth time for failing to comply with the requirement that he provide life insurance pursuant to the terms of the PSA.
16. FN16. Parties may agree to provide more than the law would otherwise require. Such agreements are enforceable in the child's interests. Dolce, supra, 383 N.J.Super. at 18.
The opinion of the court was delivered by OSTRER, J.A.D.