Opinion
DOCKET NO. A-5507-12T3
06-19-2014
SUSAN FRANCISCO, Plaintiff-Respondent, v. GERALD FRANCISCO, Defendant-Appellant.
Frank Pisano, III, argued the cause for appellant (Needleman and Pisano, attorneys; Mr. Pisano, on the briefs). Robert J. Gallop argued the cause for respondent (O'Toole Fernandez Weiner Van Lieu, L.L.C., attorneys; Mr. Gallop, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Koblitz and O'Connor.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1426-04.
Frank Pisano, III, argued the cause for appellant (Needleman and Pisano, attorneys; Mr. Pisano, on the briefs).
Robert J. Gallop argued the cause for respondent (O'Toole Fernandez Weiner Van Lieu, L.L.C., attorneys; Mr. Gallop, of counsel and on the brief). PER CURIAM
Defendant Gerald Francisco (father) appeals from the April 18, 2013 order directing that he reimburse plaintiff Susan Francisco (mother) for the cost of the children's health insurance premiums incorporated in the resulting June 3, 2013 judgment for $13,760 entered after a plenary hearing held at our direction. We affirm.
Father's obligation is limited because in April 2011 mother's employer began providing health insurance coverage for the children at no cost to mother.
We previously related the history of this dispute in our opinion remanding to the trial court for a plenary hearing. Francisco v. Francisco, No. A-4554-10 (App. Div. Apr. 19, 2012). We need not repeat the facts in detail. The parties' 2005 judgment of divorce (JOD) required father to be responsible for the cost of health insurance for the parties' three children. The parents divided equally the unreimbursed medical costs. In 2008, one of the children required an operation for a longstanding medical condition. The child's doctor no longer accepted father's insurance, but did accept mother's insurance. Mother's insurance carrier required a court order before it would provide coverage. To promote the well-being of the child and reduce the parents' financial obligation for the unreimbursed cost they would incur if they allowed this doctor to treat the child, the parents entered into a written agreement stating that the JOD was amended
to remove responsibility for providing health insurance benefits for the three children from [father] and place responsibility for providing health
insurance benefits for the three children upon [mother.]
Mother's attorney prepared the order and wrote a letter to father's attorney stating:
Regarding your inquiry as to there being "no additional cost" to [father], I do not understand this statement. By removing the children from his policy, his insurance rates should be reduced. However, my client, by undertaking insurance coverage of the children, in no way is waiving her right to request a modification in [the] current child support award at a later time. Any requests for such modification would obviously reflect a change in insurance coverage, any changes in overnight visitation and change in income of both parties. At this time, such a request is not being contemplated.
In an August 7, 2009 order, entered after mother, plaintiff, filed a motion to review child support, the judge crossed out the provision in mother's proposed order stating, "The defendant's credit for health insurance is eliminated." Instead, the following language is hand-written, "defendant shall provide this coverage for children (by consent)[.]" On March 15, 2010, another judge, after denying mother's request to give her "credit" for her cost of paying for the children's health insurance, ordered father to reimburse mother the cost of health insurance for the children. In December 2010, the judge entered an order specifying the amount due and subsequently denied father's motion seeking relief pursuant to Rule 4:50-1(f). Because father had not chosen to participate in the earlier orders imposing the obligation on him to reimburse mother for her cost of paying for the children's health insurance, and he had a "colorable defense" that he was relieved of that financial responsibility, we reversed and remanded for a plenary hearing with limited discovery on this issue.
Years later father argued that the judge mistakenly wrote "defendant" rather than "plaintiff" in this order.
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After the short plenary hearing at which he heard both parties testify briefly, a new family judge disregarded the March 15, 2010 order because mother had not at that time asked that father reimburse her for the insurance payments. The judge determined that mother had received no consideration for taking over the responsibility to insure the children in 2008. He thus properly applied general contract principles with an eye to the original intent of the parties and fairness to the children. See Guglielmo v. Guglielmo, 253 N.J. Super. 531, 541 (App. Div. 1992) (stating that the court may apply "basic principles of fairness and equity to resolve ambiguities" in marital agreements).
The judge determined that, in mother's concern over her son's "medical crises," she neglected to consider the cost of the children's insurance. Father paid $1010 per month in support for the three children at that time. The children's insurance cost mother $411 per month. As this was a term not contained in the 2008 agreement, and because mother received no consideration for shouldering this significant additional cost, the judge applied the principles of contract law as applied in the family context to ensure fairness and equity to provide sufficient support for the children. See Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995) (stating that although marital agreements are contractual in nature, they are "enforceable only if they are fair and equitable").
Although a parent may certainly negotiate a fair level of child support, a parent is not permitted to bargain away a child's right to support. Child support is necessary to ensure that parents provide for the "basic needs" of their children. Pascale v. Pascale, 140 N.J. 583, 590 (1995). "The right to child support belongs to the child and 'cannot be waived by the custodial parent.'" Id. at 591 (1995) (quoting Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993)). We explained in Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006) that a "a parent cannot bargain away a child's right to support because the right to support belongs to the child, not the parent." We agree with the family hearing judge that father, who, at the time of divorce had voluntarily taken on the obligation of providing health insurance for the children at his sole cost, should continue to pay for the cost of that insurance. It is irrelevant that coverage was transferred to the mother's insurance carrier for the medical benefit of the child and financial benefit of the parents. Principles of equity prohibit an interpretation of the 2008 agreement resulting in mother giving away a substantial portion of the children's monthly support for no consideration.
Our standard of review of a plenary hearing in the Family Part is highly deferential. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). After hearing the parties testify under oath, the judge made an equitable decision to which we defer.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION