Opinion
DOCKET NO. A-5762-12T2
08-07-2015
PAULA YANNUZZI, Plaintiff-Appellant/Cross-Respondent, v. JOHN YANNUZZI, Defendant-Respondent/Cross-Appellant.
Mark W. Phillips argued the cause for appellant/cross-respondent (Gianos & Phillips, LLC, attorneys; Mr. Phillips, on the briefs). Matheu D. Nunn argued the cause for respondent/cross-appellant (Einhorn, Harris, Ascher, Barbarito & Frost, P.C., attorneys; Mr. Nunn and Mark Wechsler, on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Hayden. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-870-04. Mark W. Phillips argued the cause for appellant/cross-respondent (Gianos & Phillips, LLC, attorneys; Mr. Phillips, on the briefs). Matheu D. Nunn argued the cause for respondent/cross-appellant (Einhorn, Harris, Ascher, Barbarito & Frost, P.C., attorneys; Mr. Nunn and Mark Wechsler, on the briefs). PER CURIAM
This post-judgment matrimonial matter involves issues of cohabitation, alimony and child support arrears, college expenses, and attorney's fees. After a plenary hearing over several days in 2012 and 2013, the court entered an April 10, 2013 order, reducing defendant's alimony arrears after finding that for significant post-judgment periods, plaintiff resumed living with defendant, or cohabitated with another man, John Glauda, whom she married in 2012. After applying the factors in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982), the court eliminated defendant's obligation to pay his daughter's college expenses, notwithstanding a contrary provision of the parties' property settlement agreement (PSA). The court awarded plaintiff a partial $80,000 attorney's fee award, finding defendant acted in bad faith in failing to pay child support. Upon reconsideration in June 2013, the court ordered Probation to calculate defendant's child support arrears from July 1, 2007 to June 8, 2008, finding no arrears were appropriate between 2004 and 2007, because defendant lived with plaintiff and the children during that time, and supported the children.
On appeal, plaintiff challenges the trial court's factual findings regarding the parties' post-divorce cohabitation, and plaintiff's cohabitation with Glauda, which underlie the court's rulings on alimony and child support arrears. She also argues that the court erred in failing to award post-judgment interest on child support arrears. She also contends the court erred in relieving defendant of any obligation to pay for his eldest daughter's college expenses. Finally, both parties challenge the attorney's fee award.
Having reviewed the parties' arguments and the applicable principles of law, we affirm in part and reverse in part.
I.
We provide a brief overview of facts, which we will review in greater detail in the context of our discussion of the legal issues on appeal.
The parties were divorced in April 2004 after less than thirteen years of marriage. At the time, according to an addendum to the judgment of divorce (JOD), defendant's gross income was $400,000, and plaintiff's was zero. Defendant agreed to pay alimony of $120,000 a year, to continue until either party died, "or the Wife's remarriage or cohabitation with an unrelated, adult male." Six years later, the parties stipulated that defendant's income was $250,000 and plaintiff's $75,000. Defendant stated that in 2004, he filed "a Chapter 11 bankruptcy," apparently involving one or more of his businesses.
The parties have three children, A.Y., K.Y., and B.Y., born in 1993, 1995, and 1997. Defendant agreed to pay child support of $800 a week. Plaintiff was designated the primary residential parent, while the parties shared joint legal custody. The parties agreed to "contribute to the children's college education expenses in proportion to their respective abilities to do so at the time the child(ren) go to college." A separate custody order provided that the parties were to participate in major decisions affecting the children, including their education, and "[i]mportant educational decisions will be made jointly." The PSA also expressly acknowledged child support and alimony were subject to modification in the event of a substantial change in circumstances.
Regarding equitable distribution, the parties agreed to sell their marital home in Morris County, with all the net proceeds to plaintiff. The house was encumbered by $694,076 in debt. Defendant asserted the house had over $1 million in equity. However, as late as 2009, the house was not sold. Plaintiff also retained a farm property, also encumbered by a mortgage, with a net equity of $600,000, on which she intended to build a new home. The parties divided joint bank accounts and securities. The PSA also allocated various businesses between the parties.
The record does not reflect the value of the businesses, and whether they were pre-marital assets. However, based on the names of the businesses, and statements in the record, it appears that defendant was engaged in businesses related to excavation for construction, and disposal of construction and perhaps other waste. Among the businesses distributed to plaintiff was Yannuzzi Disposal Services, a licensed solid waste disposal company. Defendant retained Tri-County Rock Products LLC, Yannuzzi & Sons, Inc., Yannuzzi Demolition & Recycling, Yannuzzi Enterprises, Yan-Yan, and Yannuzzi Sales, Inc. However, shortly after the divorce, defendant sought bankruptcy protection for some or all of the businesses he retained.
Defendant never directly paid alimony to plaintiff. Plaintiff testified that defendant did direct a $10,000 payment to her in 2006 from a third-party business. Defendant also paid no child support to plaintiff until late 2008. He paid $109,417.57 from 2009 through January 2013. According to Probation, his arrears exceeded $120,000 as of January 1, 2013.
Defendant contended through counsel that he, plaintiff and the children lived together post-divorce until July 2007. However, defendant did not testify at the plenary hearing; he relied on testimony from plaintiff and other witnesses, and documentary evidence, to prove his post-divorce cohabitation with plaintiff. Defendant asserted in a January 2011 certification that the parties cohabited until August 2007.
Defendant contended that as early as February 2008, plaintiff was living with Glauda in the former marital home. Defendant argues that he was relieved of alimony obligations except for the period of time when neither he nor Glauda lived with plaintiff. He also contended that A.Y.'s college plans were made without consulting with him; and his relationship with A.Y. was estranged.
Plaintiff denied that she lived with defendant post-divorce; she contended her cohabitation with Glauda began in April 2009. She acknowledged that she took no legal action until 2008 to enforce defendant's support obligations, but she testified that she relied on defendant's assurance that he would fulfill his obligations.
The plenary hearing followed multiple post-judgment applications, and cross-applications for relief, beginning in 2008. They were heard by multiple judges. Defendant first sought, unsuccessfully, to modify his support obligations in the first half of 2008. In a June 2008 order, the court denied defendant's motion, and granted plaintiff's cross-motion to compel payment of spousal and child support through Probation.
Apparently, in support of his motion, defendant stated that the parties' PSA — which, as noted, apparently shifted a disproportionate share of assets to plaintiff — was drafted to shield assets from defendant's anticipated bankruptcy filing. Defendant apparently contended that the parties never intended that the PSA would be binding. The record does not include defendant's certification in support of his motion. We rely on the court's characterization of his statements. The court held that defendant was estopped from repudiating the PSA.
The record does not reflect that plaintiff sought arrears dating back to entry of the JOD. The only reference to arrears is found in the court's statement of reasons, where it directs Probation to add just $1200 to defendant's child support account as arrears. In a decision denying defendant's motion for reconsideration in September 2008, the court noted, "Defendant further contends that plaintiff never asked for arrears."
Plaintiff again sought to enforce defendant's support obligations in November 2008. Defendant cross-moved to reduce his obligations, asserting plaintiff was cohabiting with Glauda, and defendant's own financial situation had deteriorated. In March 2009, the court denied defendant's cross-motion without prejudice; required the parties to retain an economic expert to analyze the parties' income; and referred the parties to post-judgment economic mediation. The court noted plaintiff's contention that her home was in foreclosure. Defendant alleged that plaintiff withdrew roughly $1 million in equity out of the home. He also asserted that his income had dropped while plaintiff's income had risen.
The court found defendant had established a prima facie showing of changed circumstances, based on evidence that his financial situation had deteriorated. However, the court found that defendant's proof of cohabitation between plaintiff and Glauda was insufficient and denied without prejudice his request to terminate alimony on that basis.
In April and May 2009, the court entered child support enforcement orders reflecting arrears of $127,830 as of April 16, 2009, and $142,169 as of May 21, 2009. The basis for the calculation is not stated, however, it obviously did not include unpaid alimony and child support since 2004, which would have accrued, respectively, at the annual rate of $120,000 and $41,600.
In September 2009, the court denied without prejudice another round of motions and cross-motions. Plaintiff sought enforcement and defendant sought modification. Defendant renewed his motion to terminate alimony based on cohabitation in June 2010. In response, plaintiff apparently admitted cohabitation. The court entered an order in February 2011, terminating alimony as of April 2009, reserving defendant's right to attempt to prove an earlier date.
In September 2011, defendant filed a motion seeking various forms of relief related to ongoing discovery, and to vacate arrears pending a plenary hearing. Plaintiff cross-moved to compel defendant to pay for ninety percent of A.Y.'s past and future college expenses. Plaintiff also sought alimony arrears from April 21, 2004.
The record does not include plaintiff's notice of motion. However, based on the court's silence in its order on the motion, it appears that plaintiff did not seek child support arrears from April 21, 2004.
Pending the hearing, the court denied without prejudice the request for reimbursement of college expenses. After a period of discovery, the plenary hearing on alimony, child support, and college expenses was conducted over several days between July 2012 and January 2013. After the hearing, the court ordered that defendant pay $70,000 in alimony arrears, spanning the period of July 2007, when he vacated the marital residence, and February 2008, when plaintiff began cohabiting with defendant. The court ordered defendant to pay child support from the date of his departure from the former marital residence, with a credit for payments made, and without any post-judgment interest, to be calculated by Probation. The court awarded plaintiff $80,000 in attorney's fees, but credited defendant $1500 for fees previously awarded to him that plaintiff had not paid. Finally, the court denied plaintiff's application for enforcement of the PSA compelling defendant to pay for college and related expenses.
II.
We exercise limited review of the trial court's findings of fact. We will not disturb a trial court's fact-finding if supported by "adequate, substantial, credible evidence"; deference is "especially appropriate when the evidence is largely testimonial and involves questions of credibility" because the trial judge who has observed and heard witnesses can better assess veracity; and we accord deference to the family court based on its "special jurisdiction and expertise." Cesare v. Cesare, 154 N.J. 394, 411-13 (1998) (internal quotation marks and citation omitted). However, we will reverse a trial court's findings that are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Id. at 412 (internal quotation marks and citation omitted). In other words, we may reverse fact findings that "went so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation marks and citation omitted).
We exercise broader review when considering "the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom." Ibid. (internal quotation marks and citation omitted). We are compelled to reverse "if the court ignores applicable standards[.]" Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008). Finally, we owe no special deference 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).
III.
The court found that defendant cohabited with plaintiff after the divorce, until July 1, 2007. The judge rejected defendant's argument that plaintiff was barred by the doctrine of laches in seeking spousal and child support prior to her filing in 2008. The court found that defendant failed to show any prejudice based on plaintiff's inaction. However, the court found plaintiff waived the claim for alimony "because the Defendant supported Plaintiff." The court likewise found that child support arrears should be calculated from July 1, 2007, because "[d]efendant was supporting the Plaintiff, and therefore his family" prior to that date.
Plaintiff contends that the record evidence does not adequately support the court's finding of post-divorce cohabitation of the parties, or financial support. Based on our review of the record, we are satisfied there was sufficient, credible evidence in the record to support the court's finding that the parties continued to live together in the marital home after the divorce. We agree that the evidence of defendant's support is sparse. However, for the reasons set forth below, we nonetheless affirm the court's determination that plaintiff is barred from claiming support during the period of post-divorce cohabitation with defendant.
The record supports the court's finding that the parties continued to live together, notwithstanding that plaintiff denied the cohabitation, and plaintiff testified that she supported herself, relying in part on the income generated from the business she received in equitable distribution. She also testified defendant paid nothing toward household expenses or support of the children. However, the court found that plaintiff was "not credible in many aspects." The court noted she was evasive in her testimony, which was "fraught with inconsistencies."
Defendant presented substantial direct and circumstantial evidence to support his claim of post-divorce cohabitation with plaintiff. Significantly, plaintiff took no action until 2008 to enforce her right to support — which tended to show that she was still living with, and supported by, defendant — although she attributed her inaction to defendant's inability to pay, advice of counsel, and defendant's alleged assurances.
A local police officer testified that when he responded to the former marital home in February 2006, plaintiff told him that she and defendant "were legally divorced on paper, but have not separated." Another officer testified that in April 2006, he responded to a nearby hotel to take defendant's complaint that a former employee was harassing him. The officer reported that defendant explained he was staying in a hotel "due to some ongoing marital problems with his ex-wife." The officer's report indicated the marital home's address as defendant's place of residence.
A builder, Richard Maddaluna, testified that he worked with the parties in early 2007 on plans to build a new home on the farmland property. The parties appeared to Maddaluna to be married, and defendant co-signed a May 2007 contract. A neighbor who moved next door to the parties in May 2003 testified that he socialized with the parties; observed their comings and goings; introduced them to Maddaluna; and, "[f]or sure, they were living together."
Finally, the record includes a letter from A.Y. that supports defendant's claim. Although the letter was included to demonstrate the estrangement between father and daughter, it is probative on the issue of cohabitation, inasmuch as A.Y. wrote in January 2009, "I lived with you for 14 years of my life and I respected and loved you for those 14 years." A.Y. became fourteen in September 2007. In sum, the record sufficiently supports the court's finding that the parties lived together until July 2007 after the divorce.
We agree that the record of the plenary hearing lacks substantial evidence describing the nature of defendant's support during the more than three years, post-divorce, in which he continued to live with plaintiff and their children. However, in view of the court's finding that the parties cohabited with one another, we need not delve into the nature of defendant's economic contribution to resolve plaintiff's claim for alimony. The parties agreed in their PSA that defendant would not be liable for alimony upon "cohabitation with an unrelated, adult male." Simply put, post-divorce, defendant was an "unrelated, adult male."
Defendant established that, despite the divorce, he cohabited with plaintiff, the two enjoying a "marriage-like relationship."
Cohabitation involves an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage. These can include, but are not limited to, living together, intertwined finances such as joint bank accounts, sharing living expenses and household chores, and recognition of the relationship in the couple's social and family circle.
[Konzelman v. Konzelman, 158 N.J. 185, 202 (1999).]
Where parties agree that cohabitation alone will trigger a suspension of alimony, the court need not "delve" into the economic benefits received by the supported spouse:
[A] specific consensual agreement between the parties to terminate or reduce alimony
based on a predetermined change of circumstances does not require an inquiry into the financial circumstances or economic status of the dependent spouse so long as the provision itself is fair. Thus, where the parties have agreed that cohabitation will constitute a material changed circumstance, and that agreement has been judged fair and equitable, the court should defer to the arrangements undertaken by the parties. In that situation where the dependent spouse has entered into a new marriage-like relationship, the court need not delve into the economic needs of the dependent former spouse.
[Id. at 197.]
Alternatively, one may conclude that plaintiff waived her claim to alimony by continuing to reside with defendant in a marriage-like relationship. McDermott v. McDermott, 120 N.J. Super. 42, 44 (Ch. Div. 1972) (stating "it is fair to rule that during the time parties live together following their divorce, the alimony order should be deemed as having been waived by the former wife"). Cf. Weiner v. Weiner, 120 N.J. Super. 36, 39 (Ch. Div. 1972) (stating that "reconciliation or resumption of cohabitation before a divorce abrogates the executory provisions of a separation agreement"), aff'd o.b., 126 N.J. Super. 155 (App. Div.), certif. denied, 65 N.J. 286 (1974); Brazina v. Brazina, 233 N.J. Super. 145, 151-152 (Ch. Div. 1989).
We recognize that the parties' PSA provision regarding cohabitation does not resolve plaintiff's claim for child support. Moreover, the record does not reflect the extent to which defendant contributed financially to the support of the children. We have found no New Jersey case that directly addresses the question whether a supporting parent is entitled to relief or credit for child support arrearages for the period of time when he or she has reconciled or cohabited with the former spouse and their children. The courts of other states have taken varying approaches to the issue. See generally, Alice M. Wright, "Right to Credit on Child Support Arrearages for Time Parties Resided Together After Separation or Divorce," 104 A.L.R.5th 605 (2014) (collecting cases that accept or reject right to credit upon various grounds and subject to various limitations).
One court has concluded that a payor parent who resumes residence with a divorced spouse should be entitled to a credit against child-support arrears, but only to the extent the payor spouse can document financial support. See Helgestad v. Vargas, 180 Cal.Rptr.3d 318, 330 (Ct. App. 2014). However, that approach requires a level of proof that is likely to be impractical where the parties have genuinely resumed a marriage-like relationship and intermingled their finances and resumed the joint enterprise of supporting their children. Difficulties of proof are magnified when the support recipient delays in requesting payment of arrears.
Another court has applied equitable principles of estoppel, to bar a payee ex-spouse from seeking child support arrears for a period of post-divorce cohabitation, provided the payor ex-spouse can prove he was misled to his detriment by the payee's actions. Ramsey v. Ramsey, 861 S.W.2d 313 (Ark. App. 1993). However, estoppel presumes an intentional act or misrepresentation, inducing detrimental reliance. See Reese v. Weis, 430 N.J. Super. 552, 583 n.6 (App. Div. 2013) (distinguishing laches and equitable estoppel).
Our courts have accepted the application of principles of laches to bar a custodial parent's application for reimbursement of past support, although not to bar a child's right to future support from the date of the application:
While laches does not arise from delay alone, the actions and non-actions of the plaintiff are sufficient to justify the bar of laches to deny her any claim for reimbursement. The record shows that she was aware of procedures to obtain child support and to locate defendant but chose not to do so in order to inhibit any daughter-father relationship. The equitable balance therefore clearly favors defendant [father] regarding any monetary claim by plaintiff [mother]. However, the issue sub judice involves not plaintiff's right to a monetary claim but rather the claim made on behalf of Michelle for on-going support.Laches requires proof of delay, and resulting prejudice. Id. at 39 ("Laches . . . penalizes knowing inaction by a party with a legal right from enforcing that right after passage of such a period of time that prejudice has resulted to the other parents so that it would be inequitable to enforce the right."); see also Reese, supra, 430 N.J. Super. at 583.
[L.V. v. R.S., 347 N.J. Super. 33, 39-40 (App. Div. 2002) (emphasis added).]
We are convinced that these principles should be applied to bar plaintiff from recovering child support for the years she and defendant lived together post-divorce. The record evidence indicates that the children enjoyed the financial support of both parents, as part of a unified household, notwithstanding the dearth of evidence regarding the actual level of expenditures by each parent. Defendant lived at home. There was also record evidence that he and plaintiff worked together at Yannuzzi Disposal Services after the divorce. Defendant joined plaintiff in making arrangements for construction of a new home, cosigning a contract as an equal partner with her. Thus, the circumstantial evidence indicates that the parties' finances were intermingled during their post-divorce cohabitation.
It would have imposed an unreasonable burden on defendant to have required him to document, in a plenary hearing in 2012 and 2013, the specific level of expenditures he made from 2004 to 2007 to support his children. The prejudice to defendant from plaintiff's delay goes beyond the lack of proof. It pertains to defendant's decision to participate in the joint enterprise of child rearing as cohabitant in the family home, notwithstanding the parties' divorce. We question whether, under the circumstances of the cohabitation in this case, the correct measure of defendant's obligation would be an arithmetic calculation: the amount of monetary support set forth in the PSA, minus the value of cash or in-kind support. Rather, it seems implicit in the nature of the marriage-like relationship that the parties have jointly undertaken the support of their children; and there need not be a strict accounting of each parent's contribution. Plaintiff gave defendant no indication to the contrary. Although plaintiff first sought enforcement of child support payments in 2008, the record does not include a request at that time for arrears for the period of cohabitation.
Although we affirm the court's holding that plaintiff was not entitled to payment of child support arrears that accrued during the parties' post-divorce cohabitation, we are constrained to reverse the court's denial of post-judgment interest on the child support arrears that accrued after the parties' post-divorce separation. Plaintiff is entitled to interest pursuant to Rule 5:7-5(g) ("In accordance with N.J.S.A. 2A:17-56.23a, past-due child support payments are a judgment by operation of law on or after the date due and are subject to post-judgment interest at the rates prescribed in Rule 4:42-11 at the time of satisfaction or execution."). See Pryce v. Scharff, 384 N.J. Super. 197, 211 (App. Div. 2006) (reversing trial court denial of post-judgment interest on child support judgment). The trial court did not provide any persuasive basis to deny that relief. We therefore remand for the court to consider plaintiff's calculations of interest due.
IV.
Plaintiff also appeals from the court's determination that her cohabitation with Glauda began in February 2008, fourteen months earlier than she maintained. Additionally, she argues defendant failed to establish that her cohabitation reduced her financial needs, citing Gayet v. Gayet, 92 N.J. 149, 152-54 (1983).
We are satisfied that substantial, credible evidence in the record supports the court's finding regarding the commencement of cohabitation. The court found that Glauda, like plaintiff, lacked credibility. Thus, the court was free to reject Glauda's and plaintiff's testimony that Glauda did not begin living with plaintiff until April 2009, when they both moved into a new home, and that he resided in Ocean County before then.
Plaintiff testified that she and Glauda married in August 2012. She could not recall whether they were engaged on May 28, 2011 or 2010.
There was adequate evidence to prove that the parties cohabited much earlier, including Glauda's sworn testimony in an unrelated domestic violence case. Glauda also testified at trial that he took plaintiff and the parties' children on a Florida vacation in April 2008, although Glauda insisted they were not "officially dating."
Upon their return from Florida, a domestic dispute between Glauda and plaintiff regarding Glauda's ex-girlfriend prompted a police visit to the home. The officer testified that Glauda "stated that he was staying with [plaintiff]. He had lived with her for the past two months. They'd just returned that morning from vacation in Florida." The police report listed Glauda's home address as that of the parties' former marital home. At the plenary hearing, Glauda did not deny telling the officer he lived at the house for the previous two months, but testified that what he said to the officer was false.
The next day, the ex-girlfriend appeared at the home. A different officer responded to plaintiff's call. Glauda was not home at the time. Based on the incident, Glauda sought a temporary restraining order against his former girlfriend. He appeared before a Family Part judge, and testified under oath that he lived with his ex-girlfriend for six years, and left her "about two and a half months ago" and is now "with a new woman . . . and a new family." Glauda testified that his ex-girlfriend was "showing up unannounced, and where I'm living, there's . . . young children involved." He continued, "And when we came home yesterday, we were away for spring break, we were in Florida . . . ." He identified plaintiff as "my girlfriend that I - that I - I live with."
The judge entered a TRO against the ex-girlfriend barring her from "plaintiff's residence" — which was not identified as the address in Ocean County, but as the parties' former marital home — "and places of employment." At the plenary hearing, Glauda asserted his testimony at the TRO hearing was not true, but was designed to obtain the restraining order.
Defendant also supported his claim of cohabitation with a report of a private investigator, who observed Glauda and plaintiff living together in December 2008. Plaintiff asserted that Glauda was in the home to assist her because she had the flu. Glauda testified that he began receiving mail at the former marital home in "the beginning of '08, or some time in '08. March, April, May. Probably — probably May of '08." Glauda insisted the mail was work-related, and he was assisting her in managing her business from the home. The next-door neighbor also observed Glauda living at the marital home in the "year or years preceding the exodus," from the house.
Also telling are the two letters from A.Y. in the record. One, sent in April 2008, apparently refers to Glauda's entry into the family's life. Referring to the emotional turmoil of living with her father, she stated that she was finally happy; there were "no more late night fights or worrying about money and we're moving, finally we're building a house." In a January 2009 letter filled with accusations, and deep emotions about her estrangement from her father, she basically told her father she did not want to have a relationship with him, and referred apparently to Glauda, stating, "I am so grateful to have someone who could replace you."
There was also evidence of Glauda's economic and spousal support of plaintiff earlier than April 2009. Glauda testified that he provided plaintiff around $120,000 or $130,000 over the course of year, which he characterized as a loan, although he never demanded repayment. Plaintiff produced a "promissory note" signed by both parties on August 20, 2010, stating that plaintiff owed Glauda $132,000 from "April 1, 2009 thru July 31, 2010." Plaintiff testified that in "2008" she borrowed over $200,000 "from Mr. Glauda" to pay for living expenses and her mortgage. On January 2, 2009, she admitted in a certification, and again on redirect at the plenary hearing, that she borrowed money from a company that Glauda's son-in-law owned. Glauda also admitted that he paid for some of the children's expenses, including sports and hobbies, and movies — although he could not identify when that began.
In sum, applying the definition of cohabitation in Konzelman, supra, quoted above, there was sufficient evidence for the court to conclude that plaintiff and Glauda began a marriage-like relationship in February 2008. Plaintiff also misplaces reliance on Gayet, supra, in support of her argument that defendant failed to establish that plaintiff's cohabitation reduced her financial needs. The parties agreed in their PSA that proof of cohabitation was enough. As discussed above, Konzelman, supra, established that if such an agreement is fair, neither the parties nor the court need inquire "into the financial circumstances or economic status of the dependent spouse." 158 N.J. at 197.
V.
We next consider the issue of payment of A.Y.'s college education expenses at a private four-year college in New York State. The court determined that a change in circumstances — consisting of the deterioration of the relationship between defendant and A.Y., among other factors — justified application of Newburgh factors, despite the presence of an agreement to fund college expenses. The court relied on, among other authorities, Gotlib, supra, 399 N.J. Super. at 310-11, and Moss v. Nedas, 289 N.J. Super. 352, 360 (App. Div. 1996).
In denying plaintiff's request for contribution, the court noted there was little evidence regarding most of the Newburgh factors. The court placed great weight on factor eleven — "the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance," Newburgh, supra, 88 N.J. at 545.
In connection to that factor, the court found that "the expenses have been incurred without prior notification to the [d]efendant preventing any meaningful input into the process and resultant financial obligation." The court found:
[Plaintiff] testified that there has been no communication with [defendant] concerning [A.Y.'s] college attendance. He has not been apprised of her scores, her acceptances, and/or her financial aid. The evidence is such that there is absolutely no relationship between [A.Y.] and her father. [Plaintiff] felt no obligation to advise [defendant] about the status of his children since they have no relationship. According to [plaintiff], [d]efendant has a responsibility to be a [']father . . . a role model . . . and have a relationship with them.['] He's done nothing in the past
5 years other than a one-time meeting with [A.Y.] and a one-time call to [K.Y.]. John Glauda confirmed that the [d]efendant has no relationship with [A.Y.] and vice-versa. He also has no relationship with [K.Y.] and [B.Y.]. John Glauda has basically assume[d] a father role for these children who now live in South Carolina.
. . . .
The [d]efendant is and has been totally estranged from [A.Y.] and his children for many years. This is partially his fault for sure, however, the Court is satisfied that, not only, has the [p]laintiff . . . precipitated this unfortunate state of affairs, but she has also squashed any potential amelioration of a father-child relation by moving with the children to South Carolina. She has remarried and foisted her new husband into the role of father.
The court relied on Gac v. Gac, 186 N.J. 535, 546 (2006), for the proposition that plaintiff's and A.Y.'s failure to consult with defendant before incurring the expenses weighed against granting plaintiff's application. See Ibid. (stating that a parent's and child's failure to consult in advance with the proposed payor-parent regarding college, to enable that parent "to participate in [the child's] educational decision as well as to plan for his own financial future weighs heavily against ordering him to contribute to her educational expenses after her education was completed").
Plaintiff presents a two-pronged argument. First, she contends that the court was obliged to enforce the PSA, which required payment of college costs. Second, she contends that even if the court were authorized to apply the Newburgh factors, the court relied too heavily on the lack of a relationship between father and daughter, in the absence of evidence regarding "the cause of that strain" and defendant's "efforts to repair his relationship with his children."
As for the first argument, we agree with the trial court that a PSA provision requiring payment of college expenses is subject to modification based on a significant change in circumstances, as are other provisions regarding child support. Our Court has long recognized that an agreement to pay child support is subject to modification based on a significant change of circumstances. Lepis v. Lepis, 83 N.J. 139, 150-56 (1980).
The Lepis Court expressly addressed an "obligation under [an] agreement to pay for the expense of higher education." Id. at 161. The Court held, "If circumstances have changed in such a way that requiring defendant to pay for college would no longer be equitable and fair, the court also remains free to alter the prior arrangement." Id. at 161 n.12. See also Moss, supra, 289 N.J. Super. at 359-60 (quoting Lepis and affirming order terminating father's obligation to contribute to college expenses because of mother's failure to consult notwithstanding order to do so); Black v. Black, 436 N.J. Super. 130, 147 (Ch. Div. 2013) (holding that agreement to contribute to college expenses "never stated that . . . [it] was permanently non-modifiable, or that defendant would be absolutely forced to pay even if his son refused to talk with him ever again and then stuck with that position for three long years"); cf. Gotlib, supra, 399 N.J. Super. at 310 (reversing trial court's order directing defendant to contribute to college expenses and requiring application of Newburgh factors where parties agreed to pay college expenses, but did so "in accordance with appropriate legal standards") (internal quotation marks and citation omitted).
We are satisfied that the undisputed deterioration of the relationship between A.Y. and defendant constitutes a significant change in circumstances warranting reconsideration of defendant's obligation to pay an equitable share of A.Y.'s college expenses. We observe that while the PSA provided that "[t]he parties shall contribute to the children's college education expenses in proportion to their respective abilities to do so at the time the child(ren) go to college," the PSA also stated each party "understands and acknowledges that the amount of . . . child support set forth in this Agreement is subject to modification should either party experience a substantial change in circumstances."
Moreover, the PSA required plaintiff to consult with defendant regarding educational issues and stated that important educational decisions would be made "jointly." Plaintiff's admitted breach of this provision of the PSA may be deemed a significant change in circumstances. Finally, there was no so-called "anti-Lepis" clause that required payment of college expenses regardless of a change in circumstances. See Morris v. Morris, 263 N.J. Super. 237, 242 (App. Div. 1993).
We do not mean to suggest that the breach of such an agreement by a custodial parent, without more, relieves the supporting spouse of the obligation to support his or her child. In Colca v. Anson, 413 N.J. Super. 405, 420-21 (App. Div. 2010), we held, under the circumstances of that case, that the child's right to college support would not be prejudiced by the parent's failure to abide by the procedures for seeking college expense reimbursement under a prior order. Similarly, in Gotlib, supra, we rejected the defendant-father's argument that he was not responsible for paying various unreimbursed medical expenses because the custodial parent failed to comply strictly with an agreement to confer 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). Nonetheless, as a child matures, and certainly once a child reaches the age of majority, the failure to confer with a supporting parent cannot be attributed only to the parent.
We can certainly imagine a situation in which parties may agree to a non-modifiable college contribution provision, and modification thereafter would be inequitable — for example, where one party waives a significant share of equitable distribution at the time of divorce, in return for the other spouse's agreement to bear the cost of college later.
We are also unpersuaded by plaintiff's argument that defendant should be denied relief from the college contribution obligation because he failed to establish fault in the deterioration of his relationship with A.Y. As noted above, the court laid blame on both parents for the deterioration of defendant's relationship with the children. Certainly, our law should not reward a parent who engages in abusive behavior or alienates the child, such that the lack of a relationship with the child is a result of the parent's own doing. Gac, supra, 186 N.J. at 544. "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." Id. at 546.
On the other hand, as the court in Black, supra, insightfully observed, it is usually counter-productive to attempt to assess blame in the deterioration of a parent-child relationship in the wake of a divorce. 436 N.J. Super. at 143-144. Sadly, divorces are often preceded by emotional turmoil in the household; children are too frequently entangled in the differences between the parties; they often take a side, sometimes with the unfortunate acquiescence or encouragement of one party but sometimes despite the parties' efforts to the contrary.
We are constrained to note that in late 2012, plaintiff unilaterally, and without any notice to defendant, relocated to South Carolina with Glauda, her then new husband, and the three children. Absent any provisions for contact between defendant and the children, the relocation presumably widened the divide between defendant and his children.
The record before us certainly establishes that the relationship between defendant and his children, and A.Y. in particular, deteriorated. But, the reasons why are far from clear. Plaintiff testified that the last time defendant had any contact with the children was in 2007. However, plaintiff also testified that defendant "had a great relationship with the children" after the divorce. This appears to be the more accurate statement. As the trial court found, defendant remained in the household until mid-2007. The parties' next-door neighbor testified that he "periodically" saw defendant playing with the children. Glauda also testified that the children had a relationship with their father for a few years after the divorce.
We agree that efforts to repair the relationship are more relevant. Black, supra, 436 N.J. Super. at 145. However, we reject plaintiff's argument that the record lacks evidence of defendant's effort to repair the relationship. A.Y. wrote a letter to her father in January 2009 — when she was fifteen years old — essentially burning the bridge between her and her father. She recounted the emotional pains she experienced during the breakdown of her parent's relationship; her parents' disputes in and out of court; their financial troubles as she perceived them; and her father's alleged infidelity. She laid the blame at her father's feet, accusing him of various wrongs against her mother and herself.
A.Y. told her father she never wanted to talk to him again. She called defendant "some stranger I wish I never knew," and wrote "thank god that there are no laws that can ever force me to talk to you." She further stated, "I have the right to say if I ever want to talk to you again or see you again. Because John, to be honest, I don't want to and Mom does not agree with me at all." Significantly, A.Y. made it clear that it was her decision, contrary to plaintiff's wishes, to cut off communication with her father. She wrote, "I don't ever want you near me ever again and I just want you to know you ruined my childhood and teenage years. You'll never have the chance to come back into my life."
Moreover, A.Y.'s letters confirmed that her father had attempted to communicate with her. She ridiculed Christmas cards he had sent to her and her siblings. She referred to his repeated phone calls, which she refused to take. On A.Y.'s sixteenth birthday in late 2009, defendant sent her a card — and Glauda indicated A.Y. was upset at what she perceived to be the cheapness of the gift.
Glauda attempted to encourage the children to have a relationship with their father. He visited defendant's office "to help him have a relationship with his kids again." However, the children were "lukewarm about it." Glauda again attempted a reconciliation at a later date but the children "said no."
Under those circumstances, we cannot agree that the record lacks evidence of defendant's efforts to repair the relationship.
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 that school year 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.
Ultimately, the allocation of college expenses is a fact-sensitive task. Newburgh, supra, 88 N.J. at 545. We defer to the trial court's exercise of discretion, provided the court applies the applicable legal principles based on adequately supported findings of fact. Plaintiff has presented insufficient grounds, based on the record before us, to disturb the trial court's decision regarding the college educational expenses of A.Y.
In reaching this conclusion, we do not intend to foreclose an application by A.Y.'s younger siblings for college support. We recognize that at this point, A.Y. likely has graduated from college. The record does not disclose the nature of the relationship between defendant and B.Y. and K.Y. A genuine effort by the children to repair their relationship with defendant, and to confer with him regarding their college plans, would be a significant factor in assessing the nature of defendant's obligation. --------
VI.
Plaintiff argues on appeal that the trial court's award of $80,000 in attorney's fees was inadequate; she seeks an additional award for fees incurred in resisting defendant's motion to reduce his child support obligation. In his cross-appeal, defendant argues that the trial court's award of attorney's fees against him must be reversed; he argues that the court attributed bad faith to him based on an error of fact; in particular, the court found that defendant resisted agreement as to his current income.
Under Rule 4:42-9(a), counsel fees may be recovered in family actions. In awarding counsel fees, the court shall consider
(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.
[R. 5:3-5(c).]
"We will disturb a trial court's determination on counsel fees only on the 'rarest occasion,' and then only because of clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (citing Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). When one party acts in bad faith, it is unnecessary to consider the financial circumstances of the party. Yueh v. Yueh, 329 N.J. Super. 447, 461 (App. Div. 2000).
In its brief discussion of its attorney's fee award, the court recited the factors set forth in the rule, and focused on the defendant's bad faith.
Defendant has demonstrated bad faith. Up to the date of trial Defendant refused to capitulate as to his income and earnings causing voluminous discovery and delays. He has amassed thousands of dollars in arrears in alimony and child support. After scrutinizing the extensive billing records, the Court has determined an appropriate fee award which is granted in favor of the Plaintiff.
Although it may be debatable, as defendant contends, whether defendant refused to stipulate as to his income up to the date of trial, the more significant factor is defendant's intentional non-payment of support. Defendant's reduction of income did not justify a complete cessation of payments.
We also note that the parties incurred roughly the same amount of fees, totaling $400,000. Requiring defendant to incur $80,000 of plaintiff's fees would result, roughly, in defendant bearing seventy percent of the total fees (280,000/400,000 = .70). By contrast, the ratio of defendant's stipulated income to plaintiff's income is 79 percent to 21 percent. We perceive no inequity in the court's fee award.
In sum, we affirm the trial court's decision, with the exception of its denial of post-judgment interest on child support arrears.
Affirmed in part; reversed in part. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION