NASH v. MEIJER No. A-5166-10T3.

BARBARA NASH (f/k/a MEIJER), Plaintiff-Appellant/Cross-Respondent, v. ROBERT MEIJER, Defendant-Respondent/Cross-Appellant.

Superior Court of New Jersey, Appellate Division.
Decided April 9, 2012.
Joseph Nitti argued the cause for respondent/cross-appellant (Nitti & Nitti Law Office, attorneys; Mr. Nitti, on the brief).
Before Judges Fuentes, Koblitz and Haas.

NOT FOR PUBLICATION

PER CURIAM.

Plaintiff Barbara Nash appeals from a May 16, 2011 order, which (1) denied her motion to require defendant Robert Meijer to pay half of the cost of their younger daughter's private school tuition; (2) granted defendant's motion to reduce his contribution to work-related child care expenses; and (3) denied plaintiff's request for counsel fees. Defendant has filed a cross-appeal from the same order, which denied his motion for counsel fees. We affirm, substantially for the reasons stated in the May 17, 2011 written opinion of Judge Donald A. Kessler.1

The facts and procedural history of this case are discussed in detail in the trial judge's opinion and need not be repeated here. In summary, the parties were divorced on May 5, 2003. They have two children. In 2007, when the older of the children entered the sixth grade, the parties agreed that she should attend private school and that they would equally share the cost of the approximately $30,000 annual tuition. Defendant's motion to use the child's education trust fund to pay the 2008 tuition was denied. In 2009, defendant refused to make any contribution and plaintiff successfully moved to require him to continue to pay fifty percent of the tuition.

In 2010, plaintiff enrolled the parties' youngest child in the same private school and filed a motion to compel defendant to pay half of the combined $60,000 annual tuition for both children. Defendant filed a cross-motion to reduce his child support contribution. Both parties sought counsel fees. The trial judge conducted a two-day plenary hearing. Both parties testified and each presented expert testimony concerning their respective incomes.

On the basis of this testimony, the judge found that each party's annual income fluctuated and, therefore, he determined that their incomes should be averaged over the three-year period between 2008 and 2010. Plaintiff is employed as a banker and her average annual income over this period was $470,416. She had $1.8 million in assets and no liabilities. Defendant is self-employed and operates a construction company. A number of his living expenses are paid through his business. The judge added these expenses back into defendant's income and determined that his annual average income over the three-year period was $98,282. His net worth was $113,604.

Based upon the wide disparity in the parties' incomes, the trial judge found that plaintiff was better positioned to pay a larger share of the tuition expenses. The judge ruled that defendant would continue to pay half of the older child's tuition, but that plaintiff would pay all education costs for the younger child. In effect, defendant was ordered to pay one quarter of the overall education expenses for both children.

The judge denied defendant's motion to reduce his $1,300 per month child support obligation for both children. However, the judge found that an adjustment was needed with regard to defendant's obligation to pay work-related child care expenses. Under the parties' property settlement agreement ("PSA"), defendant was required to pay $500 per month toward these expenses, regardless of the children's actual expenses. Because the children were now older, however, their expenses were now only about $370 per month. Finding that there had been a substantial change of circumstances and after examining the parties' disparate incomes, the judge reduced defendant's share of these expenses to $73.80 per month.

Finally, the trial judge denied each party's motion for counsel fees. The judge found that both parties had taken unreasonable positions during the litigation, that neither party had completely prevailed on their motion, and that each had the ability to bear their own fees.

On appeal, plaintiff argues that the trial judge should have found that defendant earned more than he disclosed and that he should have been required to borrow money to pay a larger share of the children's tuition. She also contends that, even though the children's actual child care costs are now only $370 per month, defendant should still be required to pay $500 per month as set forth in the PSA. Each party argues that the other should pay for all of their counsel fees. After reviewing the record, including the transcript of the plenary hearing, we conclude that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We make the following brief comments.

The scope of our review is limited. "[F]indings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. "Trial court findings are ordinarily not disturbed unless `they are so wholly unsupportable as to result in a denial of justice'...." Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)).

Contrary to plaintiff's argument, the trial judge was not required to accept her expert's theory that defendant's income should be determined through an accrual accounting method. As the judge explained, defendant had always used a cash basis of accounting in his business. Use of the cash basis method enabled the judge to fully evaluate defendant's ability to contribute toward the children's tuition costs. We defer to the judge's rejection of plaintiff's expert's testimony on this point, "noting that the trial court is better positioned to evaluate the [expert] witness' credibility, qualifications, and the weight to be accorded [his] testimony." In re Guardianship of DMH, 161 N.J. 365, 382 (1999).

Plaintiff's argument that the trial judge erred by reducing defendant's share of the children's work-related child care expenses is not persuasive. Despite the presence of a PSA, a court is authorized to reexamine existing support orders if the movant, as here, can establish that there has been a substantial change of circumstances. Lepis v. Lepis, 83 N.J. 139, 157 (1980). Finally, in denying each party's motion for counsel fees, the trial judge appropriately considered the factors enumerated in Rule 5:3-5(c).

Based on our limited standard of review, we find no basis to interfere with the decision of the trial judge. Judge Kessler made detailed findings of fact and conclusions of law, which he cogently explained. His decision is supported by the trial evidence and is entirely consistent with applicable law.

The appeal and cross-appeal are affirmed.

FootNotes


1. On August 5, 2011, Judge Kessler filed a written amplification of his findings of fact and conclusions of law pursuant to 2:5-1(b).

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