Table of Contents
Cover Page.................................................. i
Table of Contents.......................................... ii
Table of Authorities...................................... iii
Index to Transcripts....................................... ii
Table of Contents to
Appendix.............................. iv
Procedural History.......................................... 1
Statement of Facts.......................................... 4
Legal Argument
I. THE TRIAL COURT ERRED IN MODIFYING THE TERMS OF THE PARTIES'
AGREEMENT IN THE ABSENCE OF A FINDING THAT A CHANGE IN CIRCUMSTANCES HAD
OCCURRED OR THAT ENFORCEMENT OF ITS TERMS WOULD BE UNJUST 6
II. IF ANY ASPECT OF THIS MATTER IS REMANDED, IT SHOULD BE HEARD BY A DIFFERENT JUDGE 9
Conclusion 10
Table of Authorities
New Jersey Court Rules
Rule 1:7‑4(a) 7
New Jersey Case Law
|
Brill
v. The Guardian Life Ins. Co. of America,
142
N.J. 520 (1995)
|
5
|
|
Carmichael
v. Bryan,
310
N.J. Super. 34 (App. Div. 1998)
|
8
|
|
Cesare
v. Cesare,
154
N.J. 394 (1998)
|
5
|
|
Curtis
v. Finneran,
83
N.J. 563 (1980)
|
7
|
|
Gallo
v. Gallo,
66
N.J.Super. 1 (App.Div.1961)
|
5
|
|
In
re Baby M.,
109
N.J. 396 (1988
|
8
|
|
J.L.
v. J.F.,
317
N.J.Super. 418 (App. Div. 1999)
|
8
|
|
Lepis
v. Lepis,
83
N.J. 139 (1980).
|
6
|
|
New
Jersey Division of Youth and Family Services. v. A.W.,
103
N.J. 591 (1986)
|
8
|
|
P.T.,
A.T. and H.T. v.M.S.,
325
N.J.Super. 193 (App. Div. 1999)
|
8
|
|
Pascale
v. Pascale,
113
N.J. 20 (1988)
|
5
|
|
Petersen
v. Petersen,
85
N.J. 638 (1981)
|
5
|
|
Rova
Farms Resort, Inc. v. Investors Ins. Co.,
65
N.J. 474 (1974)
|
5
|
|
Shaw
v. Shaw,
138
N.J.Super. 436 (App.Div.1976)
|
5
|
|
Smith
v. Smith,
72
N.J. 350 (1977).
|
8
|
|
Tancredi
v. Tancredi,
101
N.J. Super. 259 (App. Div. 1968)
|
5
|
|
Weishaus
v. Weishaus
180
N.J. 131 (2004)
|
5
|
Table of Contents to
Appendix
Judgment of Divorce 1-8
Order on motion (under
appeal) 9-10
Order following remand
(under appeal) 11-13
Plaintiff's motion
(1/17/2004) 14-24
Defendant's (cross) motion
(2/20/2004) 25-37
Plaintiff's reply
("Answer cross motion") (2/27/2004) 38-43
Defendant's motion (on
remand) (5/7/2004) 44-51
Exhibit A to motion (prior
orders) (5/7/2004) 52-62
Exhibit B to motion (JOD)
(5/7/2004) 1-8
Exhibit C to motion (Tuition
costs) (5/7/2004) 63-65
Exhibit D to motion (Payment
proof) (5/7/2004) 66-71
Plaintiff's cross motion
(6/8/2004) 72-77
Exhibit A to cross motion
(Financial Aid) (6/8/2004) 78
Exhibit B to cross motion
(School costs) (6/8/2004) 79-81
Exhibit C to cross motion
(Payment proof) (6/8/2004) 82
Defendant's reply
(6/21/2004) 84-87
Exhibit A to reply
(Appellate motion) (6/21/2004) 88-95
Exhibit B to reply (Payment
proof) (6/21/2004) 96-111
Notice of Appeal 112-113
Appellate Case Information
Statement 114-116
Transcript Request Form 117
Appellate
Division Order (6/14/2004) 118
Appellate Division Order
(10/21/2004) 119
Appellate Division Order
(4/6/2005) 120
Appellate Division Order
(6/7/2005) 121
Appellate Division Order
(1/12/2006) 122
Index to Transcripts
There is no transcript.
The trial court did not permit oral argument, in spite of it being
requested by both parties on both the original motion and the application heard
upon remand by this court.
Procedural History
The parties to this postjudgment matrimonial action divorced in
1998 (Da 1-8). They are the parents of
two children, Lindsay and Zachary (Da 3).
Lindsay is now 24 years old and emancipated. Zachary is 21 and a full time student.
On May 11, 1998, the parties entered into a comprehensive
property settlement agreement incorporated into their judgment of divorce (Da
1-8). The Agreement was "the product
of negotiations between the parties with the assistance of counsel" (Da
1).
On January 17, 2004, plaintiff filed a pro se motion seeking "enforcement of litigant's rights"
and to compel defendant to contribute to college costs (Da 14-24).
On February 11, 2004, defendant, also pro se, filed a cross motion (Da 25-37) and opposition to
plaintiff's motion. In his opposition,
defendant cited the relevant portion of the judgment of divorce, which required
him to contribute to college "tuition only" in an amount equal to the
average of a New Jersey state college (Da 5, Paragraph 2) and sought an
accounting of the child's Bar Mitzvah funds and financial aid, which were
explicitly to be applied to Zachary's tuition costs before looking to defendant
for contribution.
On February 27, 2004, plaintiff filed a reply certification (Da
38-43). Plaintiff initially admitted
that defendant's liability was capped at the cost of tuition only (Da 38 at
paragraph 2), then claimed that defendant was obligated "to pay for
Zachary's college education" including but not limited to travel expenses,
living expenses, and fraternity costs (Da 42).
Plaintiff did not allege that a change in circumstances had occurred
warranting deviation from the parties' agreement nor that enforcement of the
property settlement agreement's "tuition only" provision would be
unjust.
On April 5, 2004, Hon. Roger W. Daley issued an order without
holding oral argument requiring defendant to contribute to Zachary's
"college expenses" and establishing the parties' relative percentage
contributions (Da 9). Shortly
thereafter, defendant retained counsel.
On May 7, 2004, defendant filed a notice of appeal along with a
motion to the appellate division seeking a remand to permit the filing of a
motion to clarify whether "college expenses" should be read to
include more than tuition. The motion
for remand was granted.
At the same time, on May 7, 2004, defendant also filed a motion
in the trial court seeking, inter alia,
to clarify that his only liability was for "tuition" as per the
parties' judgment of divorce (Da 44-71). Defendant sought oral argument.
On June 8, 2004, plaintiff filed a cross motion. Plaintiff also requested oral argument (Da
72-82).
On June 21, 2004, defendant filed a reply certification (Da
84-111).
On November 18, 2004, without hearing oral argument, the court
entered an order on the remand (Da 11-13).
On April 6, 2005, the appeal was dismissed as a result of
defendant's alleged failure to file a transcript. The appeal was reinstated on defendant's
motion after it was clarified that there was no transcript as the trial court
had not permitted oral argument.
On January 12, 2006, the appeal was dismissed for failure to file
the appellant's brief.
On July 31, 2006, a motion was filed to reinstate and to permit
the filing of appellant's brief nunc pro
tunc, explaining that defendant had suffered the loss of a parent and his
employment and that he had been unable to assist in the prosecution of the
appeal.
Statement of Facts
The parties entered into a comprehensive property settlement
agreement incorporated into their judgment of divorce (Da 1-8). The Agreement was "the product of
negotiations between the parties with the assistance of counsel" (Da
1). Plaintiff received the entire
marital residence free and clear of any claim by defendant (Da 6) and her
entire PERS pension free and clear of any claim by defendant (Da 6). Defendant agreed to pay alimony, provide
non-modifiable child support and bear all costs of transporting the children
for parenting time (Da 2-3).
The judgment further states, in at least five separate places,
that defendant (in consideration of these other terms of the agreement) would
be required to contribute to his son's "tuition only" when he
attended college.
Plaintiff did not allege, and the trial court did not find, that
a change in circumstances had occurred warranting deviation from the parties'
agreement. Plaintiff did not allege,
and the trial court did not find, that enforcement of the property settlement
agreement's "tuition only" provision would be unjust. Absent one or other of these occurring, the
trial court erred by modifying the PSA and requiring defendant to contribute to
"educational expenses."
LEGAL
ARGUMENT
The general rule is that findings of a trial Court are binding on
appeal when supported by adequate, substantial and credible evidence in the
record. Pascale v. Pascale, 113 N.J.
20, 33, (1988) (quoting Gallo v. Gallo, 66 N.J.Super. 1, 5,
(App.Div.1961)), Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J.
474, 484 (1974). It is not the role of
the Appellate Division to re‑weigh the factual determinations of the
trial court, which alone has the opportunity to view the demeanor of and judge
the credibility of witnesses. Cesare
v. Cesare, 154 N.J. 394, 416 (1998).
However when, as here, the trial Court issues an order without
making the required findings, this court should reverse. Brill v. The Guardian Life Ins. Co. of
America, 142 N.J. 520 (1995), Tancredi v. Tancredi, 101 N.J.
Super. 259 (App. Div. 1968), Shaw v. Shaw, 138 N.J.Super. 436
(App.Div.1976).
I. THE TRIAL COURT ERRED
IN MODIFYING THE TERMS OF THE PARTIES' AGREEMENT IN THE ABSENCE OF A FINDING
THAT A CHANGE IN CIRCUMSTANCES HAD OCCURRED OR THAT ENFORCEMENT OF ITS TERMS
WOULD BE UNJUST
The Supreme Court has repeatedly and unambiguously held that
agreements reached by parties to a divorce action should be awarded substantial
deference upon a subsequent challenge by one of the parties:
Voluntary
agreements that address and reconcile conflicting interests of divorcing
parties support our "strong public policy favoring stability of
arrangements" in matrimonial matters... The prominence and weight we
accord such arrangements reflect the importance attached to individual autonomy
and freedom, enabling parties to order their personal lives consistently with
their post‑marital responsibilities....
Thus, it "would be shortsighted and unwise for courts to reject out
of hand consensual solutions to vexatious personal matrimonial problems that
have been advanced by the parties themselves.
For these reasons, "fair and definitive arrangements arrived at by
mutual consent should not be unnecessarily or lightly disturbed." Weishaus
v. Weishaus 180 N.J. 131 (2004) citing
Petersen v. Petersen, 85 N.J. 638, 645 (1981), Smith v. Smith,
72 N.J. 350, 358 (1977).
In consideration of the other terms of the Agreement, which were
overwhelmingly favorable to plaintiff, the parties agreed that defendant would
be required only to contribute to the tuition expenses incurred by his son (Da 5, Paragraph 2). The remainder of the cost was to be borne by
application of funds from the child's Bar Mitzvah, student loans, grants,
financial aid, and by plaintiff.
There are two circumstances under which an agreement reached by
parties will not be enforced. Initially,
a trial court could find that enforcement of the agreement would be unjust and
inequitable. Petersen v. Petersen,
85 N.J. 638, 645 (1981), Smith v. Smith, 72 N.J. 350, 358
(1977).
Second, a trial court could find that a "substantial,
involuntary and permanent change in circumstances" had occurred and that
the agreement should be modified on this basis. e.g., Lepis v. Lepis, 83 N.J. 139, 148 (1980).
Neither of these circumstances occurred in the matter before this
Court. Plaintiff's motion to
"enforce" the judgment of divorce and to require defendant to
contribute to the "college expenses" incurred by the parties' son did
not allege that a change in circumstances had occurred or that enforcement of
the agreement that parties had reached on this issue would be unjust.
The trial court ignored the requests for oral argument made by
both sides and did not issue findings of fact or conclusions of law that
justified its decision.
As the appellate division has noted on several occasions,
"in trials conducted without a jury the court must find the facts and
state its conclusions of law. See R. 1:7‑4(a).
The failure of the trial judge to perform those functions constitutes a
disservice to the litigants, the attorneys, and the appellate court." Curtis v. Finneran, 83 N.J.
563, 569‑70, 417 A.2d 15 (1980).
In the absence of a finding of a change in circumstances or that
the agreement was unjust, this court should reverse Judge Daley's order and
remand for the entry of an order capping defendant's liability at his income
proportionate share of "the cost of tuition in an amount equal to the
average of a New Jersey state college."
II. IF ANY ASPECT OF THIS
MATTER IS REMANDED, IT SHOULD BE HEARD
BY A DIFFERENT JUDGE.
While not strictly a matter of disqualification, the appellate
court has the authority to direct that a different judge consider the matter in
order to preserve the appearance of a fair and unprejudiced hearing. See,
e.g., Carmichael v. Bryan, 310 N.J. Super. 34, 49, (App. Div.
1998). Although not as a result of a
full and fair hearing, Judge Daley demonstrated, in improperly modifying the
parties' property settlement agreement, that a "fresh judicial
examination" is warranted if further proceedings beyond the entry of an
order are required. See R. 1:12‑1(f).
In In re Baby M., 109 N.J. 396, 463, (1988), reversing
217 N.J.Super. 313, (Ch. Div. 1987), the Supreme Court cited the trial
judge's "potential 'commitment to its findings'" to support a
determination that a different should hear a matter on remand. The Appellate Division also has remanded
cases to be heard by a different judge on several occasions. See, e.g., P.T., A.T. and H.T. v.M.S., 325 N.J.Super.
193, 222 (App. Div. 1999); New Jersey
Division of Youth and Family Services. v. A.W., 103 N.J. 591, 617,
(1986); J.L. v. J.F., 317 N.J.Super.
418, 438, (App. Div. 1999); Carmichael v. Bryan, 310 N.J.Super.
34, 49 (App.Div.1998).
If any aspect of this matter is remanded and requires further
proceedings, it should be heard by a different judge.
Conclusion
For the above reasons, this court should reverse the trial
court's improper modification of the parties' Property Settlement Agreement and
remand for the entry of an order compelling defendant to contribute his income
proportionate share of "the cost of tuition in an amount equal to the
average of a New Jersey state college."
Respectfully submitted,
David Perry Davis, Esq.
