RONALD DESIMONE VS. ABBE LANGÂ (FM-03-592-05, BURLINGTON COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4172-14T1
RONALD DESIMONE,
Plaintiff-Appellant,
v.
ABBE LANG, f/k/a ABBE DESIMONE,
Defendant-Respondent.
____________________________________
Submitted October 17, 2016 – Decided July 17, 2017
Before Judges Nugent and Currier.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Burlington County, Docket No. FM-03-592-05.
Ronald DeSimone, appellant pro se.
Klineburger and Nussey, attorneys for
respondent (D. Ryan Nussey and Carolyn G.
Labin, on the brief).
PER CURIAM
Plaintiff, Ronald DeSimone, appeals from December 15, 2014
and April 10, 2015 Family Part orders modifying his parenting time
and modifying portions of the parties' settlement agreement
concerning payment of their children's college expenses.
Plaintiff also raises an issue he did not raise before the trial
court, namely, a "cap" should be placed on his responsibility for
the children's college expenses.
For the reasons that follow, we affirm the provision of the
order modifying parenting time, vacate the provision of the order
deviating from the parties' agreement concerning the children's
college expenses, and remand for further proceedings. We decline
to address plaintiff's argument concerning a cap on his
responsibility for the children's college expenses because he did
not preserve the issue for appeal.
Following a fifteen-year marriage and the birth of their
three sons, the parties divorced. The March 29, 2007 Final
Judgment of Divorce (FJOD) included the terms of the parties'
agreement concerning custody, alimony, child support, and
equitable distribution (the settlement agreement). The settlement
agreement provided, among other things, that plaintiff would have
parenting time with the children every Wednesday overnight. The
settlement agreement concerning the children's college expenses
provided in pertinent part:
It is specifically understood and agreed
by and between Plaintiff and Defendant that
both parties have an obligation to pay for the
college education expenses of their children,
taking into consideration at the time each
child attains the appropriate age, the
respective total financial circumstances of
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the parties, as well as the obligation each
child should have to assist himself/herself
in obtaining a college degree. The parties
agree that they are and shall both be
responsible for all of the costs relating to
the children's attendance at college.
"College costs" shall be defined to include
without limitation application fees, test
preparation course fees, costs of visiting
colleges, tuition, room (on or off campus),
board, book, activity fees, reasonable costs
for the children to return home for vacations
and breaks, spending money and all other costs
associated with attendance at college.
The parties agree that both parties shall
be actively involved in the selection of each
child's college. Both parties shall be
entitled to visit colleges with the children,
as well as work with the children to select
the best college for each child. There shall
be mutual decision making with respect to each
child's choice of college. In addition,
either party may "veto" a child's choice of
college based on the party's financial
inability to pay his or her share of the costs
thereof.
In the absence of an agreement regarding
choice of college or the parties' respective
contributions toward college costs, either
party may apply to the Court. The Court shall
consider the total financial and other
circumstances of both parties in making its
decision. It is anticipated that the children
shall apply for all loans, aid, grants and
work-study programs for which they may be
eligible, and that these shall be applied "on
the top" with the uncovered balance of college
costs to be divided between the parties per
their agreement or, in the absence of
agreement, per Court Order.
[(Emphasis added).]
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According to the appellate record, motion practice began in
earnest after the parties' first son began college in 2011. The
motions were plentiful and protracted, occasionally acrimonious,
and usually accusatory. Although the motions and cross-motions
raised multiple issues, only two issues are relevant to this
appeal: plaintiff's Wednesday overnight visitation with the
parties' third son and the children's responsibility to apply "for
all loans, aid, grants and work-study programs for which they may
be eligible" for college.
Plaintiff's Wednesday overnight visitation was placed in
issue when defendant filed a January 31, 2013 Notice of Order to
Show Cause seeking to "maintain the status quo concerning the
parenting time schedule for the parties' youngest son." The status
quo was, according to defendant, "alternating weekends beginning
Friday after school through Sunday evening." Defendant also
requested the court to direct "that in the event of any dispute,
the issue of the parenting schedule be addressed at the plenary
hearing."
In support of her application, defendant averred plaintiff
had not exercised Wednesday overnight parenting time with their
youngest son for two years and had made no requests to resume it.
Then, the previous day, plaintiff showed up suddenly at defendant's
home demanding to resume overnight parenting time. When defendant
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refused to accommodate plaintiff, he called the police. The police
suggested the parties resolve the matter in court.
Defendant explained in her application the child's fragility.
She described how his physical and neurological impairments
affected him, how a disruption in his daily routine would
exacerbate his emotional condition, and that plaintiff lived an
hour away. Defendant surmised plaintiff's motivation to resume
his "forgotten parenting time" was to "get back" at her because
of his intense discontent with a recent mediation session.
The court eventually conducted interviews with the parties'
children in August 2013.1 For reasons not apparent from the
appellate record, it does not appear the court addressed the issue
again until August 19, 2014. At that time, the court granted
defendant's application. In an August 27, 2014 order, the court
provided that plaintiff would have overnight parenting time
"[d]uring the summer vacation until school commences, as well as
on any school year weekday during which [the child] does not have
school on Thursday[.]" The court further ordered that "[o]nce the
school year commences, as well as on any school year weekday during
1
The court apparently placed its findings and observations on the
record on August 14, 2013. The appellate record does not include
a transcript of these findings. Defendant filed a motion to compel
plaintiff to provide a copy of the transcript. The motion was
denied.
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which [the child] does have school on Thursday, [p]laintiff's
Wednesday parenting time shall not be overnight and shall commence
at 5:00 p.m. and conclude at 8:30 p.m."
Meanwhile, in January 2014, plaintiff filed a motion seeking
recalculation of child support and reallocation of certain
expenses, and a "recalculation" of the parties' responsibility for
their sons' college expenses. In his supporting papers, plaintiff
averred the parties' second son qualified for loans totaling $5500
per year, which he declined to take. Plaintiff asserted that
under the settlement agreement, those loans "must be taken off the
top of his tuition" before the remaining costs were allocated to
the parties.
Defendant filed a cross-motion seeking various relief not at
issue in this appeal. In a March 2014 letter, the trial court
sought additional information from the parties. After receiving
the additional information, the court decided, among other issues,
those now raised in this appeal. Based on its interview with the
children, specifically the youngest child, the court determined
there was "a prima facie showing of a substantial change in
circumstances, making it necessary for it to review some of the
parenting time arrangements[.]" The court went on to determine
it "really only . . . needs to make a slight modification on one
of those arrangements." Based on its interview with the youngest
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child, the court recalled the youngest child had two concerns:
that he be permitted to take his skateboard when he visited his
father, and "that he was concerned about being returned to school
late after times with dad. And he mentioned particular concern
on the Thursday after the Wednesday parenting time." For that
reason, the court determined it needed only "to make a slight
modification on one of [the parenting] arrangements."
Accordingly, the court determined "that the Wednesday parenting
time shall be on a non-overnight basis," commencing the following
Wednesday. The court also ordered the parties to "commence family
counseling immediately," and to refer any future parenting time
issues to the Burlington County Custody Mediation Program.
Next, the court recounted the considerable information the
parties submitted concerning their respective financial
conditions, and made findings of fact concerning their incomes and
other financial issues. The court determined "the allocation of
responsibility for the college education cost will be apportioned
at [sixty-nine] percent to the plaintiff and [thirty-one] percent
to the defendant." The court also determined "[t]his apportionment
shall start with the first dollar for the college education
expenses paid on behalf of [the oldest son]."
Addressing the children's obligations to obtain available
financial aid, the court decided that if:
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none of the financial aid [was] used, then
what the Court believes is that the kids ought
not to be penalized because that didn't come
out in the wash somehow between their parents.
So if there was no form of aid that was
utilized by either of the two older children,
at this point in time, the Court would order
and direct that it would vacate that portion
of the . . . agreement which requires that
they . . . be obligated to obtain any type of
financial aid, except any grants or work-study
programs which they would not have to repay.
The court explained it was trying to "put the three [children]
on an equal playing field."
The court entered two memorializing orders, both dated
December 15, 2014. In the "parenting time order," the court
ordered that during summer vacation, and "on any school year
weekday during which [the youngest child] does not have school on
Thursday, Plaintiff shall have overnight parenting time . . . as
otherwise set forth in the [settlement agreement] of the parties."
Once the school year commenced, however, when the youngest child
"does have school on Thursday, Plaintiff's Wednesday parenting
time shall not be overnight and shall commence at 5:00 p.m. and
conclude at 8:30 p.m." In the separate order concerning the
financial issues, the court ordered the sixty-nine percent –
thirty-one percent allocation between plaintiff and defendant for
the expenses of their children's college educations. Paragraphs
six and seven of the order provided:
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6. The [c]ourt reiterates as of October 22,
2014, there is a continuing obligation of all
of the children to obtain and utilize all
available loans, aid, grants and work-study
programs for which they may be eligible.
These funds shall be applied "on the top" and
then any uncovered balance of college costs
shall be divided between the parties in the
percentages set forth . . . above.
7. If any time frame has passed within which
either of the college age children could have
obtained loans, aid, grants and work-study
programs for which they may have been eligible
but did not obtain, then Paragraph 6 shall not
apply in that situation.
Defendant filed an order to show cause on January 29, 2015,
seeking enforcement of the December 15, 2014 order and compelling
plaintiff to pay his allocated share of the children's college
expenses. In his opposition, plaintiff alleged he had paid his
allocated share, but the second child did not take out available
loans in the amount of $6500, so plaintiff subtracted the amount
of the loan "off the top" and paid his allocated share of the
remaining balance. The court heard argument on the motion on
April 10, 2015.
The court issued a written opinion the same day, stating:
Based upon a review of the submissions
. . . the [c]ourt finds and determines that
neither [the oldest child] nor [the middle
child] shall be obligated to obtain loans in
connection with their college education
expenses. At the time of the hearing on this
matter, the [c]ourt expressed an intention to
place the children "on an equal playing field"
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with respect to college costs being subsidized
by loans. By way of further clarification,
in the event either [the oldest child] or [the
middle child] obtain financial aid by way of
scholarships, grants, or other assistance that
does not require repayment, that form of
financial aid shall be deducted from the gross
college education expenses due and owing to
the educational institution prior to the
utilization of the allocation of
responsibility as previously provided for in
the Order entered on December 15, 2015. This
determination applies to [the oldest child]
and [the middle child] and their respective
college costs and loans. By way of further
clarification, in the event either [the oldest
child] or [the middle child] obtain financial
aid by way of scholarships, grants, or other
assistance that does not require repayment,
that form of financial aid shall be deducted
from the gross college education expenses due
and owing to the educational institution prior
to the utilization of the allocation of
responsibility as previously provided for in
the Order entered on December 15, 2014.
Plaintiff filed this appeal. He makes three arguments:
POINT I THE COURT ERRED IN ITS DETERMINATION THAT
A SUBSTANTIAL CHANGE OF CIRCUMSTANCE
OCCURRED TO ALLOW THE COURT TO DEVIATE
FROM THE AGREED VISITATION SCHEDULE
WITHIN THE FINAL JUDGMENT OF DIVORCE.
POINT II THE COURT ERRED IN ITS DETERMINATION TO
MODIFY THE COLLEGE PROVISIONS SET FORTH
IN THE FINAL JUDGMENT OF DIVORCE AS TO
CAUSE THE CHILDREN NOT TO HAVE TO
CONTRIBUTE TO THEIR COLLEGE EXPENSES BY
TAKING LOANS WHICH WERE OTHERWISE
AVAILABLE TO THEM.
POINT III THE COURT ERRED BY NOT PLACING A CAP OF
RESPONSIBILITY UPON THE PARENTS AS TO
THEIR CONTRIBUTIONS TOWARDS COLLEGE
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EXPENSES TO ENSURE THE AFFORDABILITY TO
THE PARENTS TO CONTRIBUTE TO EACH CHILD'S
SECONDARY EDUCATION EQUALLY.
Plaintiff's arguments in Points I and III are without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E). We add only the following comments. In the
"Statement of Facts" section of his brief under "Visitation,"
plaintiff makes assertions without any reference to the record.
An appellant's brief is required to contain "[a] concise statement
of the facts material to the issues on appeal supported by
references to the appendix and transcript." R. 2:6-2(a)(5)
(emphasis added). Moreover, plaintiff did not include in his
appendix the transcript of the trial court's findings following
the court's interview with the children. Appellants are required
to provide "such . . . parts of the record . . . as are essential
to the proper consideration of the issues[.]" R. 2:6-1(a)(1)(I).
Our consideration of those parts of the record that have been
included in this appeal lead us to conclude the trial court did
not abuse its discretion in making the slight modification to the
parties' parenting time agreement.
Plaintiff did not raise before the trial court the issue of
a "cap" on his obligation to pay for the children's college
expenses. "It is a well-settled principle that our appellate
courts will decline to consider questions or issues not properly
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presented to the trial court when an opportunity for such a
presentation is available 'unless the questions so raised on appeal
go to the jurisdiction of the trial court or concern matters of
great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J.
229, 234 (1973) (quoting Reynolds Offset Co. v. Summer, 58 N.J.
Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554
(1960)).
Unlike the first and third points, we find merit in
plaintiff's second point. "Settlement of disputes, including
matrimonial disputes, is encouraged and highly valued in our
system." Quinn v. Quinn, 225 N.J. 34, 44 (2016) (citation
omitted). If parties have settled a matrimonial dispute, and the
terms of the settlement agreement are "clear, unambiguous, and
mutually understood," then a court should enforce the settlement
terms unless there is a compelling reason to depart from them. Id.
at 55. "When a court alters an agreement in the absence of a
compelling reason, the court eviscerates the certitude the parties
thought they had secured, and in the long run undermines this
Court's preference for settlement of all, including marital,
disputes." Ibid.
Here, it appears that the trial court's primary purpose in
departing from the clear, unambiguous terms of parties' settlement
agreement was to put the children "on equal footing." The trial
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court did not appear to undertake any in-depth legal analysis as
to whether or not such a reason was "compelling." Children may
differ in their abilities, and the differences may result in one
child getting financial assistance for college. For example, one
child may qualify for an academic or athletic scholarship, and
another may not. Such differences in children's abilities is not
a reason for departing from a parental agreement and understanding
that children should, to the extent possible, contribute to their
college educations by taking out loans for which they may qualify.
Having said that, we are unable to determine from the record
whether other considerations played a role in the trial court's
decision. For example, there is some suggestion that the decision
was based in part on the court's interview with the children. As
previously noted, we do not have the transcript of the court's
findings following the interviews. There is also some suggestion
in the record that the court's decision may have been based on
financial and other considerations. For these reasons, and out
of an abundance of caution, we vacate the provisions in the orders
essentially relieving the children from their obligations to
obtain appropriate aid. On remand, the court shall provide the
parties an opportunity to make an appropriate record on the issue.
The court shall support whatever decision it makes with appropriate
findings of facts and conclusions of law.
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The orders from which plaintiff appealed are affirmed in part
and vacated in part. This matter is remanded for further
proceedings consistent with this opinion. We do not retain
jurisdiction.
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