JANICE HIKES, Plaintiff–Appellant, v. DAVID W. HIKES, Defendant–Respondent.
Plaintiff Janice Hikes appeals from an order entered by the Family Part on July 24, 2012, following a remand from this court. For the reasons that follow, we affirm.
The parties were married on June 19, 1965. Three children were born of the marriage, J.H., D.H., and R.H. The marriage was dissolved by a final judgment of divorce dated March 5, 1992, which incorporated the parties' property settlement agreement (PSA). At the time of the divorce, J.H. was emancipated, but D.H. and R.H. were not.1 Among other things, the PSA required defendant to pay $200 per week in child support for D.H. and R.H. He was also required to pay $200 per week in alimony, until either party died or plaintiff remarried.
The PSA also provided that R.H.'s post-high school education costs were to be “paid in accordance with the parties' ability to pay at the time after utilizing any funds held for R.H. that are available at the time that he incurs such expenses.” In addition, the PSA required defendant to name the children as beneficiaries on the life insurance provided through his employer, until they became emancipated.
In November 1998, defendant filed a motion to declare R.H. emancipated retroactive to June 30, 1996, the date he graduated from high school, and for reimbursement of the child support he paid for R.H., calculated at $100 per week for 129 weeks. Plaintiff filed a cross-motion seeking, among other things, child support arrears and reimbursement of certain expenses she incurred for R.H.'s college education.
On February 10, 1999, the judge entered an order declaring R.H. emancipated as of June 30, 1996, and gave defendant credit for the support payments he made for R.H. after that date. The judge required defendant to continue to pay $100 per week for D.H.'s support pending further review. The judge also denied plaintiff's application for reimbursement of R.H.'s college expenses, and ordered that a plenary hearing would be held to determine defendant's obligation if R.H. successfully completed the spring 1999 semester.
Plaintiff filed a motion for reconsideration, and the judge entered an order dated June 7, 1999, granting the motion in part. The judge ordered defendant to pay $200 per week in support for D.H. Plaintiff's motion for reconsideration of the credits awarded to defendant based on R.H.'s emancipation was granted without prejudice, since the amount of the credit was “not quantifiable on the current record.” The judge also ordered defendant to pay any outstanding child support arrears, at a rate of $25 per week.
Plaintiff appealed. We reversed the judge's determination that R.H. was emancipated and remanded the matter to the trial court for a plenary hearing to address all relevant factors concerning R.H.'s emancipation “and the financial issues revolving upon that determination.” Hikes v. Hikes, No. A–5614–98 (Nov. 22, 2000) (slip op. at 12). We noted that the issues to be addressed on remand included support for R.H. and D.H., as well as defendant's obligation to pay R.H.'s college costs. Ibid.
Because both parties had health problems, the plenary hearing was not held until June 2007. The judge who conducted the hearing issued an order dated July 24, 2007, which declared R.H. emancipated as of August 21, 2004.
The July 24, 2007 order required that a Lynn trust be created, with $150,000 provided by defendant, to ensure that monies would be available to pay alimony and support for D.H., should defendant default on these obligations.2 The order stated that defendant could seek modification of the trust if he established that he has been current with his support obligations.
The order additionally provided that child support would be recalculated. The judge noted that defendant had willfully failed to provide the discovery needed to make the child support calculations. The judge gave defendant thirty days in which to provide an accurate statement of his finances. The order further provided that the court would impute income to defendant and determine his support obligation if he was unable or unwilling to provide the required documentation.
In addition, defendant was ordered to pay plaintiff $87,897.76 for R.H.'s college expenses. The order stated that “interest shall be added to these sums annually, at the rate of five percent (5%) per annum.” Defendant also was ordered to pay $212,400 in sanctions for violating the court's discovery orders.
The order further stated that defendant must provide proof that he had life insurance coverage, naming plaintiff and D.H. as beneficiaries. If defendant failed to provide such proof within thirty days, an additional $195,500 would be held in the Lynn Trust to ensure that defendant met his alimony and support obligations.
The judge entered another order on August 1, 2007, awarding plaintiff $39,942.76 in counsel fees. The judge filed two additional orders on August 17, 2007, one of which required defendant to post an appeal bond, and the other set defendant's child support and alimony arrears at $266,430.70.
Defendant appealed and challenged certain provisions of the July 24, 2007 order. We remanded the matter for further proceedings on two issues: the calculation of defendant's arrears and the $212,400 in sanctions imposed for failure to comply with the court's discovery orders. Hikes v. Hikes, No. A–6642–06 (Aug. 13, 2009) (slip op. at 13). We affirmed the other provisions of the order at issue, substantially for the reasons stated by the judge. Ibid.
The remand proceedings were assigned to a different judge, who conducted a hearing on October 27, 2010. The judge found that defendant's alimony and child support payments were current, and vacated the provision of the July 24, 2007 order imposing the sanctions upon defendant. The judge memorialized her findings in an order dated December 21, 2010.
On August 25, 2011, defendant filed a motion to: (1) vacate the Lynn trust and release the funds held in trust; (2) terminate his alimony obligation based on changed circumstances; (3) modify his child support obligation; and (4) award him counsel fees.
On September 18, 2011, plaintiff filed a cross-motion seeking: (1) interest on the monies she paid for R.H.'s college costs and the monies defendant was required to pay her; (2) a judgment for half of the $184,000 that defendant received from his employer, Merck & Co., Inc., after the divorce; (3) recalculation of child support; (4) the award of counsel fees in lieu of the sanctions previously imposed; (5) a determination of defendant's arrears; (6) to limit defendant's support credits to the amounts he paid since June 1996, rather than 1992; (7) to compel defendant to file an updated Case Information Statement (CIS); (8) an award of counsel fees; and (9) a plenary hearing on these issues.
The judge heard oral argument on the motions and on February 7, 2012, entered a written opinion and order. The judge denied defendant's application to vacate the Lynn trust and release the funds held therein, noting that the trust was established “in lieu of life insurance and as a way of securing compliance with defendant's support obligations.” The judge stated that, although defendant was current in his support obligations, he had a history of non-compliance and therefore maintenance of the trust was necessary.
The judge determined that the decrease in the value of defendant's stock assets and plaintiff's inheritance from her mother constituted a prima facie showing of changed circumstances for purposes of seeking a change in his alimony obligation. The judge ordered the parties to exchange discovery. The judge said that if the parties could not resolve the dispute over alimony, the matter would be referred to mediation.
In addition, the judge rejected plaintiff's claim that she was entitled to interest on the funds she advanced for R.H.'s college expenses and the monies that defendant had been required to pay her from July 24, 2007. The judge rejected plaintiff's argument that the July 24, 2007 order required interest to run from the dates when plaintiff advanced the monies for R.H.'s college expenses and the dates defendant was required to pay plaintiff.
The judge also rejected plaintiff's contention that she was entitled to one-half of the payments that defendant received from Merck in 1993. The judge determined that the monies were defendant's pension payments and plaintiff waived her right to the pension in the PSA. The judge found no merit in plaintiff's claim that defendant was not forthright in disclosing this asset during the divorce proceedings.
Thereafter, the parties filed motions for reconsideration of various provisions of the February 7, 2012 order. On July 20, 2012, the judge heard argument on these motions, and entered an order conditionally reducing the Lynn trust by $35,000, but denied, without prejudice, defendant's application to release all of the funds held in trust.
The judge also enjoined plaintiff from making any arguments that are inconsistent with the probation department's audit of defendant's support payments and the court's order of December 21, 2010 on this issue. The judge denied plaintiff's motion for reconsideration and her application for an increase in alimony. This appeal followed.
Plaintiff argues that the judge: (1) failed to enforce the provision of the July 24, 2007 order awarding her retroactive child support to June 1996; (2) did not enforce the provision of the July 24, 2007 order, which she claims required interest to run from the dates she advanced funds for R.H.'s college education and the dates when defendant was required to pay her certain monies; (3) erroneously refused to award her one-half of the $184,000 that defendant received from Merck in 1993; (4) erred by refusing to award her counsel fees in lieu of the sanctions previously imposed; and (5) should have ordered defendant to maintain life insurance for the benefit of the parties' son, D.H.
We first consider plaintiff's argument that the remand judge erred by finding that defendant was current in his child support payments.
The following facts inform our decision on this issue. In July 2007, the judge granted plaintiff's motion to recalculate child support retroactive to 1996, when R.H. graduated from high school. Because defendant did not provide the necessary discovery, the judge gave him thirty days to do so.
The judge ordered that, if defendant did not provide the required information, he would determine his support obligation by imputing income to him. Defendant never provided the information needed to determine child support. The trial court entered an order dated August 17, 2007, which established his child support obligation and fixed defendant's child support and alimony arrears at $266,430.70.
As noted previously, in the earlier appeal, we remanded the matter to the trial court for “review and clarification of both [defendant's] child support and his alimony payments.” Hikes, supra, No. A–6642–06 (slip op. at 21). We directed the trial court to determine an “accurate support arrearages figure.” Ibid. We added that “[i]n making that calculation, the judge on remand [could] impute income to defendant.” Ibid.
The judge handling the remand proceedings held a plenary hearing in October 2010, and issued an opinion on December 21, 2010, noting that plaintiff interpreted this court's decision to require a recalculation of child support from 1996, and had urged the court to follow the methodology used by the judge who previously established defendant's arrears.
The remand judge also noted that plaintiff had argued that the probation department had erroneously given defendant credit for support payments made from 1992 to June 1996. The judge found that our mandate was
to simply review and clarify [d]efendant's alimony and child support payments so that an accurate arrearages figure may be determined. At issue is whether the trial court, when calculating [d]efendant's total arrears, was justified in including alimony arrears, and whether there is any evidence that [d]efendant had not paid. The [c]ourt finds that the Appellate Division's directive allows, to the extent necessary, a recalculation of support based upon the methodology [that the court had] used to calculate the support arrears.
The judge reviewed documents submitted at the plenary hearing and determined that defendant was current in his alimony and child support payments. The judge signed an order dated December 21, 2010, setting forth that finding.
Plaintiff did not appeal from the December 21, 2010 order. Instead, nine months after that order was entered, plaintiff filed a cross-motion seeking a recalculation of child support back to 1996, and another calculation of defendant's arrears. The judge considered the application as a motion under Rule 4:50–1(f) for relief from the December 21, 2010 order.
The judge found “no additional evidence has been provided that would make the court's [December 21, 2010] order inequitable.” The judge determined that plaintiff had not established entitlement to relief under Rule 4:50–1(f) because she did not show that enforcement of the December 21, 2010 order would be unjust, oppressive or inequitable.
By order entered on February 7, 2012, the judge denied plaintiff's motion for relief from the order. Plaintiff then moved for reconsideration. On July 24, 2012, the judge denied plaintiff's motion.
Plaintiff has only appealed from the July 24, 2012 order denying her motion for reconsideration. She maintains that the judge “essentially ․ ignored” her Rule 4:50–1(f) motion. We disagree. As we stated previously, the judge cited that rule and found that plaintiff had not established a basis to set aside the prior order.
The record indicates that, at the 2010 plenary hearing, the remand judge fully understood plaintiff's claims. The judge correctly stated that we had remanded the matter to review and clarify defendant's child support obligations and determine his arrears, if any. The judge carried out this mandate. If plaintiff was dissatisfied with the December 21, 2010 order, she should have filed a timely motion for reconsideration or taken an appeal from that order. She did neither.
Furthermore, as the remand judge pointed out in her December 21, 2010 statement of reasons, the total amount of arrears, which was said to be $266,430.70, did not reflect any of the payments that defendant made. Indeed, the spreadsheet that reflects a summary of the so-called arrears, was merely a statement of the total amount of alimony and child support that defendant owed from 1996 through July 2007.
The remand judge also noted that the records of the county probation department indicated that defendant had, in fact, paid all of the $266,430.70 in child support and alimony determined to be due. The remand judge found, based on the probation department's fiscal audit, that defendant was current in both his alimony and child support payments.
The remand judge noted that plaintiff had argued that the audit was erroneous. She had maintained that defendant had been inappropriately given credit for certain payments. The judge found, however, that “there is nothing in the record that would support a finding that the probation department's audit was erroneous” and refused to disregard the probation department's accounting.
Thus, plaintiff failed to show that enforcement of the court's December 21, 2010 order was in any way inequitable. The remand judge properly determined that plaintiff was not entitled to relief under Rule 4:50–1(f).
Next, plaintiff argues that the judge erred by not enforcing the court's July 24, 2007 order, which plaintiff interprets as granting her interest at five percent per annum from the dates that she advanced funds to pay for R.H.'s college expenses, and from the dates defendant should have paid her certain monies.
The following facts are pertinent to our consideration of this argument. In our opinion of November 22, 2000, we determined that the trial court erred by finding that R.H. was emancipated as of June 30, 1996. We ordered the court to conduct a plenary hearing to address all relevant facts in determining whether R.H. was emancipated, and to address the related financial issues, including child support and payment of college costs. Hikes, supra, No. A–5614–98 (slip op. at 8–12).
In the remand proceedings that followed, plaintiff submitted a statement of the amounts she paid for R.H.'s college education. According to plaintiff, R.H. attended Rutgers in the fall of 1996, and Middlesex County Community College (MCCC) from spring of 1997 through the end of the term beginning in the spring of 2002. In addition, R.H. attended Kean University from the fall of 2002 to the end of the term beginning in the summer of 2004.
Plaintiff stated that she paid $15,266.19 for R.H.'s tuition and books at Rutgers and MCCC. She also stated that she paid $18,354.95 for R.H.'s tuition and books at Kean. Plaintiff did not, however, provide the court with specific dates when she made these payments. Plaintiff only indicated the costs were incurred for the terms beginning in the fall, spring and summer of the years R.H. attended college.
Plaintiff further stated that she incurred housing costs related to R.H.'s attendance at college. Plaintiff said she paid rent and utilities of $400 per month for 27 months; and rent and utilities of $650 per month for four months. Plaintiff also said that for eight years she paid $1,200 per year for R.H.'s auto insurance, and $2,400 per year for his gasoline purchases. Plaintiff sought a total of $87,897.76.3
In his order of July 24, 2007, the judge accepted plaintiff's claim and ordered defendant to pay that amount. The order stated that “interest shall be added to these sums annually, at the rate of five percent (5%) per annum.” We affirmed this provision of the court's order but did not address when interest would begin to run. Hikes, supra, No. A–6642–06 (slip op. at 14–15).
On remand, plaintiff claimed that interest on these payments began to run, not from the date of the court's order of July 24, 2007, but rather from the dates she made the payments. The remand judge rejected plaintiff's contention that the July 24, 2007 order required interest to be calculated in this manner.
The judge found that the order only required interest from July 24, 2007. The judge noted that defendant paid the amounts required by that order, but he did so at different times. The judge directed the parties to exchange discovery to determine the dates defendant made the payments, so that the amount of interest could be determined.
We are not persuaded by plaintiff's contention that the remand judge erroneously failed to enforce the terms of the July 24, 2007 order. The order awarded plaintiff the $87,897.76 she requested and stated that interest would be added to the amounts awarded. The order did not, however, indicate when interest would begin to run. Plaintiff did not file a motion to amend the order to expressly include interest that accrued prior to July 24, 2007.
Plaintiff contends that the July 24, 2007 order should be interpreted in light of comments that the judge made at the June 21, 2007 hearing. The judge stated that he was going to require defendant to pay interest “all the way back to when” R.H. graduated from high school. However, that statement pertained to child support, not R.H.'s college costs.
Plaintiff also cites a letter that the judge wrote in December 2009, after he left the bench, in which he said that “even though it was not indicated on the judgment, [he] intended that the 5% interest imposed would and should be calculated from the date of payments made by the plaintiff, not the date of the judgment.” However, the letter was not submitted to the remand court and it is not part of the record on appeal. R. 2:5–4(a). Furthermore, in the letter, the judge recognizes that the July 24, 2007 order did not provide for interest from the dates of plaintiff's payments. We are convinced that the remand judge correctly determined that interest on the college expenses defendant was ordered to pay runs from July 24, 2007, the date of the court's order.
Plaintiff further argues that the remand judge erred by refusing to enforce the provision of the July 24, 2007 order that directed defendant to pay plaintiff “interest at a rate of five percent (5%) per annum, for all the obligations that [d]efendant was required to pay to [plaintiff] under the pendente lite [o]rder of July 3, 1989, and the Dual Judgment of Divorce, dated March 5, 1992.” Plaintiff contends that the order requires interest to be paid from the dates defendant should have made his payments. Again, we disagree.
In the July 24, 2007 order, the judge indicated that the total amount of these obligations was $19,453. That amount consists of $1,500 for a savings account that defendant “appropriated”; $5,400 for certain “Schedule B” assets; $1,053 in “miscellaneous obligations” reflected in the divorce judgment; $1,500 for home repairs; and $10,000 representing one-half of the monies defendant had withdrawn from a joint savings account.
We conclude, essentially for the same reasons set forth above regarding the interest on the college expenses, that the remand judge correctly found that interest on the $19,453 should run from July 24, 2007, the date the court entered the order mandating payment. The judge correctly determined that the July 24, 2007 order did not require that interest would accrue prior to the date of the order.
Plaintiff further argues that the remand judge erred by refusing to award her one-half of monies that Merck paid to defendant in 1993. Plaintiff claims that defendant failed to disclose this asset for purposes of equitable distribution. She alternatively contends that the parties' failure to include this asset in the equitable distribution was a mutual mistake that the trial court should have corrected.
Here, the remand judge found that the Merck payments were payments of defendant's pension and that plaintiff waived any interest in the pension in the PSA. The judge rejected plaintiff's claim that defendant was not forthright in disclosing this asset during the divorce proceedings. Plaintiff argues that the record does not support the judge's findings. She also contends that she presented sufficient evidence to warrant a plenary hearing on this issue.
The factual findings of the trial court, sitting without a jury, are binding on appeal if supported by adequate, substantial and credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citing N.J. Tpk. Auth. v. Sisselman, 106 N.J.Super. 358, 370 (App.Div.), certif. denied, 54 N.J. 565 (1969)). We will not disturb those findings unless “ ‘they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.’ ” Ibid. (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J.Super. 154, 155 (App.Div.), certif. denied, 40 N.J. 221 (1963)).
The record discloses the following. In his CIS dated June 5, 1989, defendant stated that he was employed by Merck. Under the section of the CIS for pensions, profit sharing, retirement plans and the like, defendant listed a Merck 401k, with a value of $14,827.75, and an Individual Retirement Account (IRA) of $8,276.68.
The divorce judgment dated March 13, 1992, provided for the equitable distribution of the parties' marital property. Among other things, the judgment stated that defendant would convey to plaintiff his interest in the marital home, and a Merck “[s]avings [p]lan” would be equally divided, as of the date of distribution, pursuant to a Qualified Domestic Relations Order.
In addition, plaintiff received 20% of the shares of certain stock, and $15,000 in defendant's Merck credit union account. Defendant received various assets, including the cash surrender value of certain insurance policies, shares and dividends of certain stock, monies in two checking accounts, defendant's IRA with Prudential Securities, and his Merck “pension.”
In 1993, defendant retired and received payments totaling $184,217.10 from Merck. Plaintiff learned of these payments at some time thereafter. Defendant says plaintiff became aware of the payments when she contacted Merck in 1993.
During the proceedings that followed our remand in 2000, the trial court appointed a forensic accountant to evaluate all of defendant's assets. In July 2004, the accountant provided the court with a report in which he noted that Merck had confirmed that defendant took a disability retirement in June 1993, and received a lump sum payment from Merck's retirement plan. The accountant stated that no further pension benefits were due to defendant. A copy of the accountant's report was provided to plaintiff's counsel.
It appears, however, that plaintiff's counsel did not obtain copies of the records pertaining to the Merck payments until March 2007. Those documents reveal that, by letter dated July 8, 1993, Merck's Senior Benefits Administrator (SBA) advised defendant that his application for a disability retirement had been approved, with an effective date of June 1, 1993.
In her letter, the SBA noted that defendant had elected the lump sum option. She stated that defendant had previously been awarded permanent disability of $20,000, and he had deposited that sum in a Prudential account. Defendant was advised that, since he had retired, he could request an immediate payout of the $20,000. It appears that defendant requested payment of the $20,000.
Documents provided by Merck also indicated that defendant had applied for retirement under the company's Voluntary Retirement Incentive Program. The Merck documents stated that, if defendant elected the life income option, he would receive an annuity of $14,300.04 until he reached the age of 62. Thereafter, he would receive an annuity of $12,831.96. The Merck documents stated that the lump sum payout would be $162,555.43.
On August 5, 1994, Merck provided defendant with a check in the amount of $164,217.10, which included interest retroactive to July 1, 1993. The accompanying letter from Merck's SBA stated that this check represented “the lump-sum payment of [defendant's] retirement benefits.”
Thus, the evidence supports the remand judge's finding that the monies Merck paid to defendant in 1993 were pension payments, which were specifically granted to defendant in the equitable distribution under the 1992 divorce judgment. According to Merck's records, defendant opted for the lump sum payment of his pension, in lieu of annuity payments that would have continued throughout the remainder of his life.
Moreover, the record does not support plaintiff's contention that defendant improperly failed to reveal this pension before the parties entered into the PSA. Although defendant's 1989 CIS does not specifically mention the Merck pension, it was disclosed at some point during the divorce proceedings. Indeed, plaintiff knew of the pension because it is specifically addressed in the PSA.
Plaintiff nevertheless states that in his CIS, defendant misrepresented that the pension had a value of $14,000. However, the $14,000 mentioned in the CIS pertained to defendant's 401k account, not the pension.
Plaintiff also says that defendant failed to disclose the Merck payments prior to the finalization of the divorce. But the payments took place in 1993, after the divorce was finalized. There is no evidence that defendant knew prior to the divorce that he would retire in 1993, and receive the lump sum payments of his pension benefits.
Furthermore, in her certification of April 26, 2012, plaintiff states that, during the divorce proceedings, defendant had retained Ralph Garfield to evaluate the pension and Garfield stated that the pension's value was $16,513. Plaintiff said her attorney relied on that valuation.
Thus, the record makes clear plaintiff knew about the pension during the divorce proceedings. The asset had been valued. Plaintiff knew of defendant's valuation of the pension. She was represented by counsel and he accepted the valuation. She elected to waive any claim to the pension, in exchange for her receipt of other assets. As the remand judge stated in her decision of February 7, 2012, the pension was addressed in the parties' PSA, and “[t]o the extent that plaintiff believed she was entitled to” more information about the pension, she should have requested it before she entered into that agreement. We agree.
Plaintiff argues that the remand judge erred by failing to award her counsel fees, in lieu of the discovery sanctions that the court set aside. An appellate court will, however, disturb a trial court's determination on counsel fees only on the “rarest occasions,” and then only because of a clear abuse of discretion. Rendine v. Pantzer, 141 N.J. 292, 317 (1995).
Plaintiff was not expected to benefit from the sanctions, so there is no basis for her claim that she should be awarded counsel fees when the sanctions were set aside. Plaintiff's arguments on this point are without sufficient merit to warrant further discussion. R. 2:11–3(e)(1)(E).
Plaintiff also contends that the judge erred by failing to compel defendant to maintain life insurance for the benefit of D.H. As we pointed out previously, the judgment of divorce required defendant to maintain life insurance naming the children as beneficiaries, until their emancipation. D.H. remains unemancipated. The Lynn trust was established because the court recognized that, due to his health problems, defendant “could not be expected to go out and buy term life insurance.”
It appears that plaintiff never filed a motion to compel defendant to provide a life insurance policy for D.H. as a “back up” for the Lynn trust. If plaintiff wants defendant to provide life insurance in addition to the trust, she must first seek that relief in the trial court.
1. FN1. D.H. was an adult when the parties divorced. He has certain health issues and the parties anticipate that he will not become emancipated.
2. FN2. A Lynn trust guarantees payment of a party's support obligations. Lynn v. Lynn, 165 N.J.Super. 328, 342 (App.Div.), certif. denied, 81 N.J. 52 (1979).
3. FN3. It appears that plaintiff's claim actually totaled $87,797.76, since the total amount for tuition and books was $45,597.76, not $45,697.76, as she stated.