DMITRY KORSUNSKY VS. SVETLANA KURINSKY (FM-18-0388-07, SOMERSET COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-2559-19
DMITRY KORSUNSKY,
Plaintiff-Appellant,
v.
SVETLANA KURINSKY,
Defendant-Respondent.
Argued March 10, 2021 – Decided April 13, 2021
Before Judges Whipple and Rose.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Somerset County,
Docket No. FM-18-0388-07.
Stilianos M. Cambilis argued the cause for appellant
(The Law Office of Rajeh A. Saadeh, LLC, attorneys;
Rajeh A. Saadeh and Stilianos M. Cambilis, on the
briefs).
Cynthia J. Lambo argued the cause for respondent,
(Lambo & Lambo, LLC, attorneys; Cynthia J. Lambo,
on the brief).
PER CURIAM
Plaintiff Dimitry Korsunsky (Father) appeals from an amended February
21, 2020 Family Part order1 that allocated to him college costs and related
expenses for the only child (Daughter) born of his marriage to defendant
Svetlana Kurinsky (Mother). We affirm.
I.
The parties were married in January 1998; Daughter was born in October
2000. The marriage was dissolved by a May 7, 2007 dual final judgment of
divorce (JOD), which incorporated the parties' property settlement agreement
(PSA). Five provisions of the PSA directly and indirectly address Daughter's
education and Father's obligation to pay child support to Mother:
2. The parties shall jointly make any and all
significant decisions concerning, but not limited to the
child's health, education, religious education and
welfare with a view toward adopting and following
those policies that are in the child's best interests. The
parties shall not take any action that would impair the
other from being a full participant in their child's lives
[sic].
....
25. [Father] shall pay to [Mother] child support
for unemancipated child of the marriage in the amount
of $1[]300 per month, . . . until the child is emancipated.
1
Apparently, the February 21, 2020 order amended an earlier order to correct
the transposing of the parties' obligations to pay Daughter's college expenses.
The original order is not included in the record on appeal.
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. . . Child support shall be recalculated by the
[p]robation [d]epartment every three years.
....
33. The parties also agree to pay in proportion to
each parties' net income, based on the preceding year's
income tax return for the undergraduate college, junior
college, vocational or trade school education of
[Daughter]. Such payments shall include tuition, fees,
books and room and board. The parties and [Daughter]
shall consult with each other with respect to the child's
choice of school.
34. In the event a child is attending school away
from home, and not living in the home of [Mother], then
[Father]'s obligation to pay child support to [Mother]
for said unemancipated child shall be reduced by fifty
percent. If the child resides at home while attending
school, there shall be no reduction in support.
35. Both parties shall cooperate fully in the
child's application process, both for admission and for
financial aid, loans, grants and/or scholarships. They
shall fully and promptly provide any necessary
information, including tax returns and financial
statements, and complete all necessary forms in a
timely manner.
Following the sale of Father's business, the Family Part entered a consent
order on March 14, 2014, governing Father's child support obligations. Relevant
here, the parties agreed to an increase in Father's child support to "$2[]625 per
month, retroactive to April 20, 2013." Notably, the consent order expressly
provided: "All other terms and provisions of prior [c]ourt [o]rders," the JOD,
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and PSA "shall remain in full force and effect except as specifically modified
herein." No other provisions of the consent order pertained to Daughter's
college education. Apparently, Father did not file a case information statement
(CIS) with the Family Part prior to entry of the consent order, but a child support
worksheet was attached thereto.
On April 8, 2019, Mother emailed Father that Daughter had received
responses to college applications. Mother stated that Daughter, at Father's
behest, had explored schools in the Boston area but did not find any strong
programs in her desired field. Instead, Daughter narrowed her decision to two
colleges – one in Florida and the other in Georgia. Mother further stated that
the parties "need[ed] to address the financial side of her attending college."
Mother included links to the schools' websites regarding tuition and financial
aid and attached financial aid award letters for both colleges.
Six days later, on April 14, 2019, Father simply replied: "Let's try to work
it out." Father advised he would be present in New Jersey that week and
suggested the parties "meet and discuss." He also provided updated contact
information because he did not "check this email [account] very often."
The parties met four days later, on April 18, 2019, but failed to reach an
agreement concerning their allocation of Daughter's college tuition and
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expenses. Daughter thereafter enrolled in the school located in Florida.
Daughter was awarded merit-based scholarships, grants, and financial aid. She
declined a work-study program, which would have interfered with her studies.
Daughter's first semester expenses, including tuition and board, were $17,920.
With no agreement as to allocation in place, Father paid $11,061 and Mother
paid $6859.
After the parties' attempts at mediation failed, Mother filed an order to
show cause to compel Father to: pay the outstanding balance on Daughter's
second semester tuition – $10,427.45, plus interest and penalties; or withdraw
those funds from Father's bank account if he failed to pay the tuition bill within
three days.2 Father cross-moved to deny mother's application. Father also
sought: a downward modification of his child support obligation, retroactively
to the commencement of Daughter's enrollment in college; and a declaration that
Daughter waived his contribution toward her college expenses, or an offset of
his obligation resulting from financial aid Daughter received or declined. In
support of his cross-motion, father included a current CIS and his 2014 tax
2
The parties were unable to reach an agreement for payment of Daughter's
second semester tuition bill. Mother and Daughter paid $7,048.55; Father made
no contribution. Accordingly, Daughter's tuition and costs became past due.
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returns, which indicated his annual net income was reduced from $660,824 in
2014 to $118,262.72 in 2019.
The motion judge declined to consider the matter as emergent. Following
argument in the ordinary course, the judge issued a cogent statement of reasons
accompanying the February 21, 2020 order. The judge squarely addressed the
issues raised in view of the governing law and the terms of the PSA. Pertinent
to this appeal, the judge granted, as modified, Mother's request to compel Father
to pay the second semester tuition bill, apportioning eighty percent of the
expenses to Father and ten percent each to Mother and Daughter. Accordingly,
Father was ordered to pay $8,344.96 by February 28, 2020.
The motion judge also denied Father's request for a reduction in child
support based on a change of circumstances, finding Father "failed to file his
past [CIS](s) with required attachments." But the judge further observed "even
if [Father] had included his prior [CIS, Father]'s certification contain[ed] no
facts in support of his assertion that he ha[d] suffered a permanent involuntary
reduction in income." Instead, the judge found Father "merely assert[ed] that
he ma[d]e 'significantly less income,' without providing the reason behind the
decrease in earnings."
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Nonetheless, the judge granted Father's request for a downward
modification of child support, retroactive to Daughter's college start date.
Pursuant to paragraph 34 of the PSA, the judge found the parties agreed "to
reduce child support by [fifty percent] for any time that [Daughter] was
attending school and not residing at [Mother]'s residence." Noting Mother
provided proof that the college's 2019-20 academic calendar spanned
approximately seven months, the judge determined Father was "entitled to a
reduction in his child support obligation for the seven months that [Daughter
was] away at college and not residing with [Mother]." Accordingly, the judge
reduced Father's child support obligation from $2804 to $1986 per month. 3
The motion judge also rejected Father's argument that Mother and
Daughter failed to involve him in the application process, thereby entitl ing him
to waive his contribution for college expenses; and Father's alternate argument
for an offset of financial aid that Daughter "should have applied for."
Referencing the April 2019 email exchange between the parties, the judge found
3
It is unclear from the record when Father's $2625 per month child support
obligation under the March 14, 2014 consent order was increased to $2804 per
month. The judge calculated Father's obligation under paragraph 34 of the PSA
as follows: "[Seven] months at $1[]402 per month and [five] months at $2[]804
per month equals $23,834 per annum. Averaged over a [twelve] month period,
[Father]'s obligation is $1[]986 per month."
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Mother "submitted substantial documentation showing she provided at least
minimal information about [Daughter]'s college selection process to [Father]."
Conversely, Father "provided no credible, reliable, and verifiable proofs
that the relationship between [him] and [Daughter] [wa]s non-existent." Citing
Gac v. Gac, 186 N.J. 535, 545-46 (2006), and Black v. Black, 436 N.J. Super.
130, 146 (Ch. Div. 2013), the judge further determined Father failed to
demonstrate Daughter resisted Father's attempts to improve or rehabilitate their
relationship that would otherwise warrant termination of Father's "obligation to
contribute to [Daughter]'s college education."
In his overlapping arguments on appeal, Father argues the motion judge
erroneously: recalculated child support without considering Father's change in
income here, where no CIS was filed in connection with the March 14, 2014
consent order; failed to consider Daughter's college attendance as a "change in
circumstance" under Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div.
2012); and misconstrued the terms of the PSA. Father claims the judge
erroneously reduced Father's obligation under paragraph 34 of the PSA by fifty
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percent for the seven months Daughter resides on campus – instead of reducing
Father's obligation for the entire year while Daughter is enrolled in college. 4
Father also renews his contention that Mother and Daughter failed to
include him "in the college selection process." In sum, Father claims he
"essentially serve[s] as a human ATM to finance [Mother and Daughter's]
decisions made without his contribution, involvement, or knowledge until it
came time for payment."
II.
We review a trial judge's decision to grant or deny modification of child
support by examining "whether, given the facts, the trial judge abused his or her
discretion." J.B. v. W.B., 215 N.J. 305, 325-26 (2013) (internal quotation marks
omitted). Thus, trial courts are afforded "substantial discretion in making a child
support award" and "[i]f consistent with the law, such an award will not be
disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to
4
It is unclear from the record whether Father raised this precise argument before
the motion judge. In his certification in support of his cross-motion, Father
requested reduction of his child support "pursuant to paragraph 34" of the PSA;
he did not specifically contend that his obligation should be reduced year-round.
The motion judge did not specifically consider whether the obligation should be
reduced only for the months Daughter resides on campus or year-round while
she is enrolled in college. Instead, the judge simply noted Mother "agree[d]"
Father's obligation would be reduced by fifty percent for the months Daughter
was not living at home.
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reason or to other evidence, or the result of whim or caprice." Foust v. Glaser,
340 N.J. Super. 312, 315-16 (App. Div. 2001) (citation and internal quotation
marks omitted). "The Family Part's 'substantial discretion' in determining child
support applies equally to compelling a parent to contribute to their child's
college costs." Avelino-Catabran v. Catabran, 445 N.J. Super. 574, 588 (App.
Div. 2016). However, we review the Family Part's interpretation of the law de
novo, without giving any special deference to the trial court's decision. See N.J.
Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014).
A court may modify child support obligations when the party seeking
modification "demonstrat[es] a change in circumstances warranting an
adjustment." Jacoby, 427 N.J. Super. at 116. Generally, in determining child
support in the context of college tuition, the factors enumerated in N.J.S.A.
2A:34-23(a) should be followed, as "the child support obligation is considered
in light of all the financial circumstances of the parties and children." Raynor
v. Raynor, 319 N.J. Super. 591, 614 (App. Div. 1999). In the context of
allocating children's college expenses, the Family Part has "broad equitable
powers" to achieve "substantial justice." Weitzman v. Weitzman, 228 N.J.
Super. 346, 358 (App. Div. 1988).
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"When a party to a comprehensive negotiated PSA seeks to modify any
support obligation, that party must meet the threshold standard of changed
circumstances." J.B., 215 N.J. at 327. The "party seeking modification of his
or her child support obligation has the burden of demonstrating a change in
circumstances warranting an adjustment." Jacoby, 427 N.J. Super. at 116 (citing
Lepis v. Lepis, 83 N.J. 139, 157 (1980)). The moving party must present a prima
facie case of changed circumstances, such as a demonstration of child
maturation, increases in need, changes in income or child emancipation. See id.
at 118-19. Moreover, "[a]s a necessary and preliminary step to meeting this
burden, a movant is required to submit both a current and a prior CIS." Palombi
v. Palombi, 414 N.J. Super. 274, 291 (App. Div. 2010); see also R. 5:5-4(a)(2).
In the present matter, the motion judge properly denied Father's cross -
motion for modification of his child support obligation based on Father's
claimed reduction in income since entry of the March 14, 2014 consent order.
Father claims he did not include a CIS from 2014 because the March 14, 2019
consent order was entered without a CIS. Instead, to support his cross -motion,
Father annexed his 2014 income tax returns and current CIS to his certification,
and summarily stated he "ma[d]e significantly less in income than [he] did at
the time of the March 14, 2014 [c]onsent [o]rder." We therefore conclude the
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motion judge correctly determined Father failed to submit sufficient evidence
that he "suffered a permanent involuntary reduction in income." Nothing in the
record suggests the motion judge's finding in this instance was an abuse of
discretion.
Moreover, we reject Father's seemingly belated argument that the judge
failed to reduce his child support obligation to reflect Daughter's college
attendance, under Jacoby, 427 N.J. Super. at 122. Unlike the parties in Jacoby,
who had no agreement addressing child support while their children attended
college, 427 N.J. Super. at 113-14, the parties in this case expressly
contemplated a reduction in child support in paragraph 34 of the PSA. Father's
argument to the contrary lacks sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Nor do we find any merit in Father's argument that the motion judge
misinterpreted paragraph 34 of the PSA. "The polestar of contract construction
is to discover the intention of the parties as revealed by the language used by
them." EQR-LPC Urban Renewal N. Pier, LLC v. City of Jersey City, 452 N.J.
Super. 309, 319 (App. Div. 2016) (internal quotation marks omitted). "[W]hen
the intent of the parties is plain and the language is clear and unambiguous, a
court must enforce the agreement as written, unless doing so would lead to an
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absurd result." Quinn v. Quinn, 225 N.J. 34, 45 (2016). "[I]f the terms of [a]
contract are susceptible to at least two reasonable alternative interpretations, an
ambiguity exists" and "a court may look to extrinsic evidence as an aid to
interpretation." Barr v. Barr, 418 N.J. Super. 18, 32 (App. Div. 2011) (quoting
Chubb Custom Ins. Co. v. Prudential Ins. Co. of Am., 195 N.J. 231, 238 (2008)).
However, even if the contract is clear and unambiguous, a court "may consider
'all of the relevant evidence that will assist [the court] in determining [its] intent
and meaning.'" Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 118 (2014)
(quoting Conway v. 287 Corp. Ctr. Assocs., 187 N.J. 259, 269 (2006)).
Here, the motion judge correctly interpreted paragraph 34 of the PSA.
That paragraph governs two opposing scenarios. Pursuant to the first sentence,
the parties agreed that Father's child support obligation would be reduced by
one-half, "[i]n the event a child is attending school away from home, and not
living in the home of [Mother]." Conversely, the second sentence provides: "If
the child resides at home while attending school, there shall be no reduction in
support." Clearly, the parties intended that Father's child support obligation
would remain the same while Daughter resided at home with Mother and would
be reduced only if Daughter resided on campus. The terms of paragraph 34 are
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"clear and unambiguous"; therefore, the paragraph must be enforced as written.
Quinn, 225 N.J. at 45.
Because Daughter lives with Mother for five months per year when she is
home from college, the motion judge correctly reduced Father's child support
obligation only for the seven months of the year that Daughter resides on
campus. Moreover, we have previously recognized the need for parents to
maintain a home for their children while their children attend college away from
home. Jacoby, 427 N.J. Super. at 121-22. A plain reading of paragraph 34
achieves this end.
We likewise reject Father's contention that he is not obligated to pay for
Daughter's college education because he was excluded from her decision-
making process, and affirm for the reasons stated in the motion judge's well -
reasoned opinion. R. 2:11-3(e)(1)(A). We add only the following comments.
Parents, under a variety of circumstances, may be obligated to pay for
their child's college education. The Supreme Court set forth a dozen factors in
Newburgh v. Arrigo, 88 N.J. 529, 545 (1982), which the Legislature then
essentially adopted in an amendment to the support statute. Gac, 186 N.J. at
543; see N.J.S.A. 2A:34-23(a). Where there is no material factual dispute
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between the parties, a plenary hearing for factual findings pertaining to the
Newburgh factors is unnecessary. Jacoby, 427 N.J. Super. at 123.
Here, the parties agreed they would pay for Daughter's college education
as set forth in paragraph 33 of the PSA. That paragraph further provides that
the parties would "consult with each other with respect to [Daughter]'s choice
of school." As such, the parties' dispute was not whether Father was obligated
to contribute to Daughter's college expenses but rather, whether a failure to
include him in the decision-making process – as required by paragraph 33 of the
PSA – terminated that obligation. In that regard, Father's reliance on our
Supreme Court's decision in Gac and its progeny is misplaced.
In Gac, the Court held a father was not obligated to pay for his daughter's
college expenses, in part because: the daughter had no relationship with the
father and repeatedly, over several years, rejected his efforts to reestablish a
relationship; the father was not kept abreast of his daughter's plans as they were
being made, including her decision to attend an expensive private college instead
of a less-expensive state college; and the daughter did not request assistance
with paying for her college expenses until after she had graduated from college
and was saddled with loans. Id. at 545-46. Notably, the parties in Gac did not
contemplate college expenses in a PSA.
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By contrast, as the motion judge observed in the present matter, Father
was not shut out of Daughter's college decision-making process. Daughter
followed Father's advice to explore colleges in Boston. Father was informed of
Daughter's two preferences after she received responses to her applications.
When asked to contribute to Daughter's college expenses before Daughter even
graduated high school, Father met with Mother and engaged in mediation to
attempt to "work it out." Moreover, Father presented no evidence that he lacked
a relationship with Daughter or that their relationship was irreconcilable. Even
if Daughter refused to have a relationship with Father, "[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." Gac, 186 N.J. at 546.
We therefore conclude the motion judge did not abuse his discretion in
finding Father was consulted on Daughter's college decision-making as required
by paragraph 33 of the PSA. Nor did the motion judge err in ordering Father to
contribute to Daughter's college expenses as set forth in the PSA.
Affirmed.
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