BARBARA SAVINI v. PETER TRIESTMAN (2010)

This appeal by defendant Peter Triestman represents the second review in as many years of orders denying his application to modify child support, relieving him from his obligation to maintain and fund a medical escrow account as well as relieving him from his obligation to reimburse plaintiff Barbara Savini for their children's medical expenses consistent with the Property Settlement Agreement (PSA) entered into by the parties.   Judge Weisenbeck, in the Family Part, denied the relief.   We affirm.

In 2007, defendant moved for similar relief, which was denied.   In an unpublished opinion, we affirmed.  Savini v. Triestman, No. A-5095-07T1 (App.Div. July 10, 2009).   We quote from that opinion to set forth relevant background information:

After approximately fourteen years of marriage, the parties were divorced on February 15, 2005.   The Final Judgment of Divorce (FJOD) incorporated a Property Settlement Agreement (PSA), which resolved all collateral issues raised in the matrimonial matter.

Relevant to the issues to be examined on appeal are two provision of the PSA. First, defendant was required to pay $3,000 per month as child support for the parties' three children.   In a section labeled “Modification,” the parties' agreement at section 3f stated:

Child support shall be subject to renegotiation and review every two years to take account of changes in the income of the parties and the Child Support Guidelines of the Courts of New Jersey.

Second, the PSA addressed payment of the children's medical expenses, stating:

The Husband shall continue to provide health insurance for the unemancipated children.   The Husband shall be responsible for orthodonture, psychotherapy and other uninsured medical and dental expenses for the children.   The Husband shall put $10,000 in an escrow account to be administered by the Wife and the Wife shall draw from the escrow account for these unreimbursed expenses.   Whenever the account is drawn down under $5,000, the Husband shall contribute additional funds to restore the account to $10,000.

Defendant solely owned and operated a building restoration business known as Triestman & Sons. The PSA contains no statement of the parties' respective incomes.   Under the equitable distribution provisions of the PSA, defendant received 100% of the value of the business and agreed to pay all debts associated with its past and current operation.   Plaintiff waived her right to obtain a formal business valuation and to receive any portion of the business.   Defendant also operated a restaurant, which he solely retained.

The parties filed cross-motions essentially seeking enforcement of various provisions of the PSA. The requests were denied without prejudice pending airing the issues in mediation, as required by the PSA. When mediation was unsuccessful, defendant again sought adjudication of the issues and both parties refiled their motions.

On November 16, 2006, after oral argument, the court entered two orders.   The first denied without prejudice defendant's request to recalculate child support and required plaintiff to submit discovery.   The second denied much of the relief sought by plaintiff in her cross-motion.   However, the order granted plaintiff's request regarding payment of the children's medical expenses and for replenishment of the $10,000 medical escrow account.   Defendant was ordered to fund the account within sixty days and to pay certain medical expenses incurred for the children.   The court also included a mechanism for defendant's review of future medical expenses after insurance reimbursements were obtained by plaintiff.

Defendant again filed a motion to reduce child support, suspend future child support payments, and require plaintiff to file a Case Information Statement (CIS).   Defendant's CIS reported the business's gross income, which he alleged dipped to -$51,577 in 2006.   He asserted his personal net income for that year was -$66,122.   Plaintiff filed a cross-motion to enforce litigant's rights.

In a statement of reasons accompanying the February 14, 2008 orders, the judge addressed defendant's arguments that the PSA required an automatic recalculation of child support every two years and that he suffered a dramatic reduction in his income.   The court stated:

The intent here [of paragraph 3f] was to provide for recalculation of child support if the parties' incomes changed, a clause that is consistent with New Jersey law․

Because defendant has misconstrued ¶ 3f, because he has not demonstrated a change in circumstances, and because any change that may have occurred to the Guidelines is not a basis for modification of a child support award in the absence of changed circumstances, [defendant's] motion is denied.

The court then addressed the many requests submitted in plaintiff's cross-motion.   Finding no support, the court denied plaintiff's application for enforcement of litigant's rights for alleged non-payment of support, sole custody, and an increase in child support.   The court also determined defendant failed to comply with the court's prior order and the provisions of the PSA. Defendant was directed to fund the children's $10,000 medical escrow account within thirty days and reimburse to plaintiff the sum of $6,311.17 for unreimbursed medical expenses and health insurance premiums she had paid for the children.   Finally, defendant was ordered to pay $750 toward plaintiff's counsel fees.   The companion order denied defendant's motion in its entirety.

Defendant filed a motion for reconsideration of the court's February 14, 2008 orders, and plaintiff filed a cross-motion for enforcement.   Following oral argument, the court denied defendant's motion and granted plaintiff's cross-motion reducing the $6,311.17 and the previously awarded counsel fee to judgment.   Additionally, plaintiff was awarded $1,260 in counsel fees, payable within thirty days.

[Savini, supra, No. A-5095-07T1 (slip. op. at 1-5).]

On his first appeal, ibid., defendant argued that the judge had erred in his interpretation of the agreement as well as in failing to find changed circumstances.   He also challenged the judge's determination that he had an obligation to replenish the medical escrow fund as well as the award of counsel fees.   We concluded that his arguments “lack[ed] sufficient merit to warrant extended discussion in a written opinion.   R. 2:11-3(e)(1)(E).”   We added that the PSA had failed to establish either plaintiff or defendant's income, and at the time the PSA was entered into, defendant was reporting a loss in his business enterprise, and defendant was responsible for reimbursement of the fund.

Following this unsuccessful appeal, defendant renewed his motion and subsequently filed similar motions ¹ raising essentially the same issues.   He cited facts and information that predated his earlier motion but were not included in the original motion filing.   The motions essentially tracked the earlier motions and included the entire record presented to us on the first appeal.

On February 3, 2009, the judge filed an order and written opinion providing:

2.  Defendant shall pay the children's monthly medical insurance premiums on a timely basis or be held in violation of litigant's rights;

3.  Plaintiff shall seek defendant's consent or the Court's permission before incurring any further out of network expenses, except in the case of an emergency.   If plaintiff fails to abide by this provision, she shall contribute towards 50% of such costs;

4.  Defendant shall pay $11,737.14, representing the children's unreimbursed medical expenses through July 31, 2008, to plaintiff within fourteen (14) days of this Order;

5.  Defendant shall provide proof that the children's medical escrow account is sufficiently funded pursuant to Part A, paragraph 3(b) of the parties' PSA within fourteen (14) days of this Order;

6.  Plaintiff shall supply proof within fourteen (14) days of this Order that the money utilized from the children's medical escrow account for her personal expenses was addressed in the previous Court Orders.   If plaintiff fails to submit such proof, the amount of $8,771.40, representing the children's medical escrow account monies used for plaintiff's personal expenses, shall be credited against defendant's future obligation for unreimbursed medical expenses;

7.  Plaintiff's request for the issuance of an arrest warrant for noncompliance with the Court's June 13, 2008 Order is denied without prejudice;

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11.  Plaintiff's request for counsel fees is granted.   Plaintiff's counsel fees is granted.   Plaintiff's counsel shall serve and file an updated Certification of Services within fourteen (14) days of this Order.   The Court will thereafter enter an award of fees;

12. Defendant's cross-motion is denied in its entirety;

13.  All other requested relief is denied.

In denying defendant's request for a downward modification, Judge Weisenbeck noted in its statement of reasons:

First, defendant fails to explain why he did not previously raise this argument.   Defendant claims that in 2006, plaintiff grossed in excess of $800,000 after the divorce.   Defendant clearly had notice of plaintiff's income when he sought a modification of child support in 2007, yet failed to advance this argument.   It would be inequitable if defendant is now allowed to seek another modification of child support when his previous request was denied merely five months before this motion was filed and the change of circumstances presently argued was known to him when he filed that initial motion.   In Larbig v. Larbig, 384 N.J.Super.   17 (App.Div..2006), the court refused to modify support based upon a change of circumstances when such relief was sought merely twenty (20) months after execution of the PSA. Similarly, defendant should not be entitled to bring multiple support modification motions utilizing evidence previously known to him when the initial motion was filed.   Moreover, defendant failed to file a prior and updated Case Information Statement pursuant to R. 5:5-4(a) and thus the Court is without sufficient documentation to award this relief.   For these reasons, the Court will not require plaintiff file a Case Information Statement or hold a plenary hearing on this issue.

Turning to the issue of medical expenses, the judge stated:

Plaintiff initially contends that defendant has failed to pay any health insurance premiums for the children, which almost resulted in a lapse of the children's insurance.   Defendant does not dispute this allegation and fails to set forth any reason why he failed to pay the children's health insurance premiums.   The Court therefore requires defendant pay the entire cost of the children's monthly health insurance premiums on a timely basis or be held in violation of litigant's rights.

Plaintiff also seeks payment of unreimbursed medical expenses accruing between February 2004 and July 31, 2008.   The court's November 30, 2007 Order, however, already reduced defendant's prior obligation for unreimbursed medical expenses to $6,311.17.   Plaintiff had an opportunity to submit these proofs with her previous motion and she cannot now seek to relitigate the amount awarded.   The Court therefore has only considered plaintiff's request for unreimbursed medical expenses that accrued subsequent to the Court's November 30, 2007 Order, less the $6,311.17 reduced to judgment and deposited with the Court.   Plaintiff is therefore seeking $11,737.14 in unreimbursed medical expenses that accrued through July 31, 2008.

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The Court does not believe it is necessary to submit the same dispute to mediation [in accordance with the PSA] if the parties have previously been unable to resolve this issue in that forum in the recent past.   Accordingly, the Court will not order mediation on the issue of unreimbursed medical expenses.

Alternatively, defendant argues that he should not be required to contribute toward these expenses because plaintiff did not submit the medical expenses in a timely manner.   Plaintiff claims that she did comply with previous Court Orders and submitted these unreimbursed medical expenses within approximately thirty (30) days after they were incurred.   Even if defendant was not properly notified of these medical expenses, he remains obligated to pay these costs as agreed to in the parties' PSA. See Gotlib v. Gotlib, 399 N.J.Super. 295, 306 (App.Div.2008) (requiring contributions toward unreimbursed medical expenses despite custodial parent's failure to strictly comply with the JOD, which required her to discuss doctors visits with the noncustodial parent and provide bills on a timely basis)․

Defendant claims that many of these expenses were unreasonable because plaintiff utilized out of network providers.   Plaintiff counters that the parties often used out of network providers during their marriage, defendant had prior knowledge and never contested such expenses and for at least one specialist, defendant would not sign a consent form which would have allowed her to seek in network care for the child.   Notably, the parties' PSA does not require plaintiff to seek in network medical care for the parties' children.   Furthermore, defendant does not dispute that he had previous knowledge that plaintiff previously utilized out of network care and noted, Part A, paragraph 3(b) of the PSA requires defendant be responsible for “other uninsured medical and dental expenses for the children” without requiring plaintiff seek in-network care.   Since this issue was not raised in the past and the Court does not believe that plaintiff sought out of network medical care in bad faith, defendant is obligated to pay these previously accrued out of network medical expenses.   In the future, however, plaintiff shall seek defendant's consent or the Court's permission before incurring such out of network expenses, except in the case of an emergency.   If plaintiff fails to abide by this provision, she shall contribute toward 50% of any out of network medical expenses.

In discussing the medical escrow account, Judge Weisenbeck noted:

Plaintiff acknowledges that defendant initially funded this account, but contends that the account has since been fully depleted without replenishment.   Defendant argues that the escrow account is fully funded.   Neither party provided any statement or an accounting of the medical escrow account.   Plaintiff's previous request for this relief was denied in the Court's June 13, 2008 Order because she did not show that the balance of this account was zero.   Defendant, however, remains obligated to ensure that the account was sufficiently funded under the Court's February 14, 2008 Order.   Defendant shall provide proof that this medical escrow account is sufficiently funded pursuant to Part A, paragraph 3(b) of the parties' PSA within fourteen (14) days of this Order.

Defendant argues that plaintiff previously used the funds from this account to pay her personal expenses.   Plaintiff admits that she accident[al]ly used the debit card from this medical escrow account to pay personal expenses but contends that this issue has been dealt with in prior Orders and she already reimbursed the medical escrow accounts the amounts she improperly withdrew.   Defendant denies the plaintiff reimbursed the children's medical escrow account.   A review of the previous Court orders does not reflect reimbursement of these funds.   Defendant contends, without opposition, that plaintiff documented $8,771.40 in improper personal expenses charged against the children's medical escrow fund.   Plaintiff does not dispute the alleged amount.   Plaintiff shall supply proof within fourteen (14) days that this issue was addressed and disposed of in previous Court Orders or otherwise such amount shall be credited against defendant's future obligation for unreimbursed medical expenses.

With respect to the parties' respective requests for counsel fees, the judge stated:

In exercising its discretion, the Court has carefully considered all of the relevant factors, especially:  (1) the financial ability of the party seeking the award to pay the counsel fees;  (2) the financial ability of the party against whom the fees are sought to pay said fees;  and (3) the good faith or bad faith of the parties.

Defendant requests counsel fees because he argues that plaintiff's income is significantly higher than his.   Defendant, however, provides no proof to support this bare allegation.   Moreover, defendant does not submit proof to support the contention that he is unable to pay his counsel fees.   The Court also does not believe that plaintiff acted in bad faith when she filed this enforcement motion and further recognizes that the majority of plaintiff's relief was granted.   Thus, defendant's request for counsel fees and costs is denied.

Plaintiff seeks an award of counsel fees and costs as well.   Plaintiff argues that she is financially unable to pay her counsel fees because she had drained her liquid assets to pay for the children's medical expenses.   Plaintiff indicates and provides proof that she was forced to take out a loan from her father to make some of these payments.   The Court finds her statements to be credible.   Defendant does not provide his income for 2007, but admits that his adjusted gross income in 2006 was $91,577 and does not indicate that his expenses exceed his earnings.   Therefore, the Court believes that defendant is financially capable of paying [plaintiff]'s counsel fees.   The Court further finds that defendant acted in bad faith by failing to comply with the PSA and previous Orders on several occasions, which resulted in plaintiff being compelled to file another enforcement motion for this relief.   A majority of the relief plaintiff requested was granted while defendant's entire cross-motion was denied.   Accordingly, plaintiff's request for counsel fees is granted.

A subsequent order was entered awarding counsel fees to plaintiff in the amount of $3,636.50 and “acknowledge[d] that plaintiff has submitted proof that she reimbursed at least a portion of improper charges made against the children's medical escrow account.”

On appeal, defendant raises the same issues that he raised on the first appeal.   He claims that the judge ² erred by failing to find a prima facie change of circumstances;  the judge erred by ordering reimbursement of the escrow fund and failing to eliminate the medical escrow fund;  and the judge erred by awarding plaintiff counsel fees.

We, too, have carefully reviewed the record and considered the arguments of counsel and we are satisfied that the arguments lack sufficient merit to warrant a written opinion.   R. 2:11-3(e)(1)(E).   We affirm substantially for the reasons set forth in Judge Weisenbeck's thorough and thoughtful opinion of February 3, 2009.   We add one additional cautionary note.

In denying relief, the judge made note of and considered that defendant had failed to present the alleged facts regarding plaintiff's income in his 2008 motions when that information was available to him.   Under the facts and circumstances presented in this particular case, we find that the judge's observation and consideration of defendant withholding this information was a proper exercise of discretion and not error.

There are circumstances, however, where previously known facts and information, properly established and relevant to such issues as child support, are brought to the attention of the court, and they should not, as a matter of law, be barred or disregarded.   Family Part decisions, including support, must be equitable and just, and ultimately, properly documented information should, as a general rule, be considered when brought to the court's attention.

This general rule does not apply here.   The proofs actually presented to presumably establish plaintiff's income were woefully inadequate and deficient.   As we have noted, Judge Weisenbeck properly concluded that defendant had not established a prima facie case warranting further inquiry.   We agree.

Affirmed.

FOOTNOTES

FN1. Defendant's motions were actually cross-motions in response to plaintiff's motions to enforce litigants rights, which included, among other prayers for relief, seeking an order to enforce defendant's obligation under the medical escrow provision..  FN1. Defendant's motions were actually cross-motions in response to plaintiff's motions to enforce litigants rights, which included, among other prayers for relief, seeking an order to enforce defendant's obligation under the medical escrow provision.

FN2. The series of motions prompting the first appeal were heard by a different judge..  FN2. The series of motions prompting the first appeal were heard by a different judge.

PER CURIAM