Cross–Appellant, v. Cross–Respondent. (2011)

Following the entry of an order on November 21, 2008, granting plaintiff Lisa Miccinilli's motion to enforce certain provisions of a property settlement agreement (PSA) entered into between plaintiff and her former husband, defendant Robert Collins, defendant appealed.   In an unreported opinion, we affirmed the order of the Family Part in all respects except for a remand “for the limited inquiry and consideration of the gross income of the parties.”   Miccinilli v. Collins, No. A–2266–08T2 (App.Div. March 5, 2010) (Slip. op. at 2).   We concluded that in assessing the responsibility for the payment of the parties' child's college tuition, the judge only considered the parties' W–2 income as opposed to the gross income as required by the PSA.

At the remand hearing, the judge heard the parties under oath and considered their 2008 tax returns, redacted in plaintiff's case to remove reference to her present husband's income information.   The judge then made findings as to the gross income of the parties.   She concluded that plaintiff's gross income was $113,822 and defendant's gross income was $102,418 for the same period.   She then allocated the parties' obligation for college tuition for the child for the 2008 school year to be 54% for plaintiff and 46% for defendant.¹

In addition, because plaintiff had not filed her 2009 tax return at the time of the hearing, and defendant's gross income had been reduced in the interim, the judge made a similar calculation for the next year reflecting plaintiff's gross income of $129,808 and defendant's of $87,661.   The judge allocated responsibility at 60% for plaintiff and 40% for defendant for the Fall 2009 tuition.   She also reserved defendant's right to seek further modification for future school obligations.

In addition, the judge, responding to additional motions filed by defendant, denied defendant's request to be designated as Parent of Primary Residence (PPR) as well as various other omnibus claims made by defendant, which had been the subject of prior motions that had resolved the issues.

Defendant now appeals asserting that the judge disregarded our mandate, improperly refused to allow review of plaintiff's financial documents, misread our decision related to our conclusions regarding the PPR issue and made no findings of fact.   Plaintiff cross-appeals and claims that the judge erred in refusing to award counsel fees.

We have carefully reviewed the record in this matter and conclude that both plaintiff and defendant's arguments are without merit.   R. 2:11–3(e)(1)(A) and (E).   We add the following comments.

In our earlier opinion, we alluded to the disputes between the parties as to the various issues raised then, which defendant attempts to resurrect by his current appeal.   We incorporate by reference our earlier discussion and note that the narrow issues in dispute should be easily resolvable rather than be subject to recurrent motion practice that taxes the limited resources of the parties and the court.   Apparently, the child is now an upperclass student at Loyola University in Chicago, and this ongoing dispute has jeopardized her financial standing at this excellent institution.

We raise this issue not to chastise either party.   While we decline to find that the judge abused her discretion in denying counsel fees without prejudice, we are mindful of her observation in her earlier April 9, 2009 order denying counsel fees where both parties demonstrated good faith in the filing of the motions that generated that order:

The Court, however, notes that the Defendant is establishing a record of engaging in litigious behavior that is both unnecessary and to the expense of the Plaintiff.   Such conduct is not in the best interests of the parties' child as evidenced by the child's submission to the Court by letter which describes the general acrimony between the parties.   Therefore, while the Court does not find that attorney's fees are warranted under the current circumstances as the within matter is on appeal and required clarification of pending issues, counsel fees may be warranted upon future applications.

As we have noted, we are not prepared to conclude that the judge abused her discretion in denying counsel fees as we note that the various adjustments of the college allocations inured to defendant's benefit, but we do take note of the fact that the appeal raises issues that have been previously resolved.

As to the issues raised here, we find no basis for our intervention.

Affirmed.

FOOTNOTES

FN1. The correct calculation made by the judge was 53%–47%, however, plaintiff agreed to assume the additional responsibility..  FN1. The correct calculation made by the judge was 53%–47%, however, plaintiff agreed to assume the additional responsibility.

PER CURIAM