LAWRENCE R. BERKOWITZ VS. LINDA BERKOWITZ (FM-12-2205-97, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1725-18T2
LAWRENCE R. BERKOWITZ,
Plaintiff-Respondent/
Cross-Appellant,
v.
LINDA BERKOWITZ, n/k/a
LINDA FRIEDMAN,
Defendant-Appellant/
Cross-Respondent.
_____________________________
Submitted January 27, 2020 – Decided March 2, 2020
Before Judges Geiger and Natali.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FM-12-2205-97.
Dwyer, Bachman, Newman & Solop, attorneys for
appellant/cross-respondent (Howard Alan Bachman, of
counsel and on the briefs; Lauren A. Conway, on the
briefs).
The Weir Law Firm, LLC, attorneys for
respondent/cross-appellant (Bonnie M. Weir and
Marie-Christine Aziz, on the briefs).
PER CURIAM
Defendant Linda Berkowitz, now known as Linda Friedman, appeals from
a November 9, 2018 Family Part order denying her post-judgment motion to
compel plaintiff Lawrence R. Berkowitz to contribute to their son Zachary's
college expenses for his sophomore, junior, and senior years, including loans
taken out by Zachary and co-signed by defendant. Both parties appeal from the
denial of their respective applications for counsel fees. We affirm.
The parties were married in October 1983. They have two children,
Mitchell, born in 1988 and Zachary, born in 1992. The children have now
completed college and are emancipated.
The parties were divorced on June 26, 1997. The judgment of divorce
incorporated a Property Settlement Agreement (PSA) that the parties entered
into. The PSA included provisions that addressed support for their children
through college. Relevant here, paragraph 4 of the PSA states in pertinent part:
A. It is anticipated that the children will attend college
and both parties agree that they shall share the cost of
attendance based upon their respective abilities to pay,
taking into consideration the parties income and assets
from all sources.
The cost of college shall include, but not be limited to:
tuition, room, board, travel expenses, books, telephone,
athletic and club participations, fees and reasonable
living expenses.
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B. The choice of college shall be made by both parties
and the child, with both parties fully involved in the
application process. The parties' respective
obligations, if any, shall follow after utilization of the
child's individual assets, income, loans, grants,
scholarships and aid.
In January 2010, a consent order was entered regarding Mitchell's trust
fund and college expenses, as well as recalculation of child support. The parties
agreed that: (1) the remaining money in Mitchell's trust fund would not be used
for "college obligations" and he would have full control of the money following
graduation; (2) child support would be reduced; and (3) they would equally share
Mitchell's college cost and all related expenses.
In September 2011, Zachary began attending Bryant University.
Apparently, plaintiff felt he was not fully involved in the decision for Zachary
to attend Bryant and instead, wanted Zachary to attend James Madison
University. Defendant contends Zachary applied there but was denied
admission and that the costs to attend either university was similar. The parties
equally split the initial seat deposit required by the university. The total tuition
and costs for that year of study were also equally split by the parties.
Following Zachary's freshman year, plaintiff filed for personal bankruptcy
and did not contribute to the cost of Zachary's education during his sophomore,
junior, and senior years. Zachary graduated from Bryant in 2015.
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The parties contest who should be responsible for the cost of Zachary's
last three years at Bryant. For Zachary's sophomore and junior year, a third-
party private loan paid to finance his academic costs after applying grants,
scholarship, and federal loans. Zachary signed and defendant co-signed a loan
for $28,072 with Wells Fargo for his sophomore year and a second loan for
$28,300 for his junior year to finance Zachary's college expenses. For Zachary's
senior year, defendant paid $18,848 out-of-pocket for Zachary's tuition after
applying the grants, scholarships, and federal loans Zachary received.
Correspondence Between Plaintiff and Defendant
Throughout each academic year the parties exchanged emails and letters
by their attorneys regarding the costs and payment for Zachary's education.
An April 13, 2012 letter to plaintiff's counsel described the need to review
child support when Mitchell graduated in May 2011 and again when Zachary
began college in September 2011. The letter supplied defendant's 2010 and 2011
W-2s and pay stubs and asserted that plaintiff unilaterally reduced child support
by fifty percent when Mitchell graduated.
An October 8, 2012 letter to plaintiff's counsel alleged a second unilateral
child support reduction by plaintiff. It also alleged an error in the child support
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calculation and that plaintiff did not contribute to the children's vision and dental
costs.
During the summer between Zachary's sophomore and junior years the
parties exchanged a series of emails. In July 2013, plaintiff emailed defendant
stating he could not pay Zachary's college tuition that year, was unable to take
out loans, and was is in the process of filing for personal bankruptcy. He further
stated that he explained to Zachary that he would have to take out a private loan.
Defendant responded she needed a letter regarding the bankruptcy to negotiate
tuition with the university. Plaintiff replied that he would have his attorney send
a letter.
In the summer between Zachary's junior and senior years the parties
exchanged another set of emails. In July 2014, defendant forwarded a billing
statement from the university to plaintiff. She stated that "I will be paying my
[one-half] for this year. What is your plan? I will not be taking any more loans."
Later that month, she emailed plaintiff again asking him to acknowledge the
previous email. No response was provided in the record.
During a further email exchange in December 2014 and January 2015,
defendant forwarded another billing statement from the university for Zachary's
final semester to plaintiff. She stated that she met with the director of financial
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aid to get Zachary another grant. Defendant also stated she paid over $14,000
for the previous semester and could not take out any more loans or pay for it by
herself. She asked plaintiff how much of the final semester he would be paying
to ensure Zachary graduates. Plaintiff replied:
As you know I had to declare bankruptcy and therefore
I am not in a position to be able to contribute towards
his tuition. Thank you for all the help you have given
him. At this point in time my suggestion would be for
Zack to take out the loan for his last semester.
Defendant responded the next day, explaining that Zachary could not afford to
incur another loan and she was unable to co-sign any additional loans because
of her debts. In a later email, plaintiff reiterated that he could not help.
In an undated email, defendant advised plaintiff that Zachary's final
semester was plaintiff's or his responsibility. It went on to state that Zachary
was unable to obtain loan approval. Defendant asked plaintiff to confirm that
he would reimburse her if she pays, reminding plaintiff, "[y]ou also agreed to
pay half of all loans I took out." Plaintiff did not respond.
The 2015 Motion and Order
During Zachary's final semester of school, after all payments for his
education had been made, defendant moved to have the court enforce the PSA
and plaintiff's obligation to contribute to Zachary's education costs. The motion
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sought to compel plaintiff to pay for fifty percent of: (1) the cost of Zachary's
senior year tuition; (2) the cost of monthly student loans from Zachary's
sophomore and junior years; (3) the cost of items for on-campus housing; and
(4) the cost of food at school. Defendant also sought several other changes and
payments regarding child support. The court denied the application in its
entirety, but ordered both parties to submit financial documentation to determine
the contribution amounts they were obligated to pay under the PSA.
The court determined the PSA did not require contributing fifty percent.
Rather, contribution was based on the parties' respective ability to pay. The
court stated that it would "maintain some obligation because [p]laintiff agreed
to and did in fact contribute towards Zachary's freshman year." By doing so,
the court found that plaintiff had indicated Bryant University was acceptable to
him. The court concluded that the "parties' respective percentage obligations
will be calculated after both parties submit their most recent financial
information." Based on the record, this reassessment did not occur.
The 2018 Motion and Order
In October 2018, defendant filed a second motion to compel plaintiff to:
(1) file an updated CIS; (2) impute gross income to plaintiff in the amount of
$92,000 per year; (3) reimburse defendant for his fifty percent share of Zachary's
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uncovered college tuition for the 2014-2015 school year; (4) reimburse
defendant for $849.45 for his share of the Wells Fargo private student loans for
July and August 2018; and (5) award counsel fees. Plaintiff cross-moved for
counsel fees. The trial court issued an order and written statement of reasons
denying defendant's motion without prejudice and the parties cross-applications
for counsel fees and costs without prejudice.
Defendant argued that repayment of the student loans was deferred
because of Zachary's enrollment in graduate school. The court noted defendant
did not move to compel plaintiff to contribute to Zachary's sophomore, junior,
or senior years of college until April 2015. The court emphasized that the 2015
order determined the consent decree for contribution to Mitchell's college costs
did not modify the PSA as to Zachary. Rather, the 2015 order reaffirmed
plaintiff's reimbursement obligation based on his ability to pay. The parties'
contribution level was to be calculated after submission of current financial
information.
The court rejected defendant's argument that the 2015 order modified the
PSA. The court also found defendant did not comply with the order's financial
disclosure requirements for three years.
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The court then analyzed the parties' college expense contribution
obligation under the PSA. It emphasized that the parties were only obliged to
contribute after "utilization of the child's individual assets, income, loans,
grants, scholarships and aid." The court stated that the obligation to contribute
did not differentiate between private and federal loans and to do so would
"attempt to essentially rewrite the parties' PSA." Therefore, it determined that
plaintiff was not obligated to contribute to repayment of Zachary's private loans
that defendant co-signed because the obligation to contribute only arose after
applying Zachary's loans. The type of loan did not matter.
The court was skeptical about why Zachary was unable to obtain loans for
his senior year. The court found defendant "implicitly acknowledges that . . .
Zachary did not apply for loans consistent with the PSA . . . [or] consistent with
what he had done for his [s]ophomore and [j]unior years." It reasoned that
defendant's payments for Zachary's final year were voluntary because there was
no apparent reason why Zachary could not have been able to obtain funding
through another private loan. Thus, requiring plaintiff to contribute fifty percent
of the final year expenses would be contrary to the plain language of the PSA.
The court emphasized that Zachary had assured plaintiff that his contribution
was not being sought and that defendant had not sought contribution until after
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the costs were incurred. This was compounded, according to the court, by
defendant's inaction for three years following the 2015 order.
Lastly, the court denied both parties' applications for counsel fees without
prejudice. As for defendant's request, the court noted defendant's motion was
denied in its entirety. It found plaintiff "does not have any ability to contribute
to [defendant's] counsel fees, nor should he in light of the fact the [c]ourt finds
her requests for relief to be unmeritorious." As for plaintiff's request, the court
stated it did not find defendant's motion was filed in bad faith.
This appeal and cross-appeal followed. Defendant raises the following
points:
I. THE TRIAL COURT ABUSED ITS DISCRETION
IN FAILING TO ENFORCE THE PARTIES'
PROPERTY SETTLEMENT AGREEMENT AS IT
RELATES TO ZACHARY'S COLLEGE EXPENSES
BY RELIEVING THE PLAINTIFF OF HIS
OBLIGATION TO CONTRIBUTE.
II. THE TRIAL COURT ABUSED ITS DISCRETION
IN FAILING TO ENFORCE THE MAY 18, 2015
ORDER AS IT RELATES TO ZACHARY'S
COLLEGE EXPENSES.
III. THE DOCTRINE OF LACHES DOES NOT
APPLY TO THE INSTANT MATTER.
Plaintiff raises the following point in his cross-appeal:
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THE TRIAL COURT ERRED IN FAILING TO ISSUE
A JUDGMENT FOR COUNSEL FEES IN FAVOR OF
THE PLAINTIFF.
II.
Our review of Family Part orders is limited. Cesare v. Cesare, 154 N.J.
394, 411 (1998). We "accord particular deference to the Family Part because of
its 'special jurisdiction and expertise' in family matters." Harte v. Hand, 433
N.J. Super. 457, 461 (App. Div. 2013) (quoting Cesare, 154 N.J. at 413).
Generally, "findings by the trial court are binding on appeal when supported by
adequate, substantial, credible evidence." Cesare, 154 N.J. at 411-12 (citing
Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974)). We
will not disturb the factual findings and legal conclusions unless convinced they
are "so manifestly unsupported by or inconsistent with the competent, relevant
and reasonably credible evidence as to offend the interests of justice." Ricci v.
Ricci, 448 N.J. Super. 546, 564 (App. Div. 2017) (quoting Elrom v. Elrom, 439
N.J. Super. 424, 433 (App. Div. 2015)).
"Discretionary determinations, supported by the record, are examined to
discern whether an abuse of reasoned discretion has occurred." Ibid. (citing Gac
v. Gac, 186 N.J. 535, 547 (2006)). An abuse of discretion occurs when a trial
court "fail[s] to consider controlling legal principles," makes "findings
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inconsistent with or unsupported by competent evidence," utilizes "irrelevant or
inappropriate factors," and reaches a "decision [that] rest[s] on an impermissible
basis." Elrom, 439 N.J. Super. at 434 (citations and internal quotation marks
omitted).
We do not accord special deference to the Family Part's interpretation of
the law. D.W. v. R.W., 212 N.J. 232, 245 (2012) (citing N.J. Div. of Youth &
Family Servs. v. I.S., 202 N.J. 145, 183 (2010)). Challenges to legal
conclusions, as well as a trial court's interpretation of the law, are subject to de
novo review. Ricci, 448 N.J. Super. at 565 (citing Reese v. Weis, 430 N.J.
Super. 552, 568 (App. Div. 2013)).
We review an order regarding attorney’s fees in a matrimonial case to
determine if the trial court abused its discretion. Harte, 433 N.J. Super. at 465-
66 (citing J.E.V. v. K.V., 426 N.J. Super. 475, 492 (App. Div. 2012)). We "will
disturb a trial court’s determination on counsel fees only on the 'rarest occasions,
and then only because of a clear abuse of discretion.'" J.E.V., 426 N.J. Super.
at 492 (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).
A court may award counsel fees in a matrimonial matter and "shall
consider the factors set forth in the court rule on counsel fees, the financial
circumstances of the parties, and the good or bad faith of either party." N.J.S.A.
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2A:34-23. Our Court Rules provide that a trial judge may, in his or her
discretion, award counsel fees in a matrimonial action. R. 5:3-5(c).
III.
We affirm substantially for the reasons expressed by the trial court in its
written statement of reasons. We add the following comments.
The trial court's analysis of plaintiff's responsibility for contributing to
Zachary's college expenses is supported by the terms of the PSA and the record.
We discern no abuse by the trial court.
The plain and unambiguous language of the PSA only obligated plaintiff
to contribute to Zachary's college expenses after "utilization of the child's
individual assets, income, loans, grants, scholarships and aid." The PSA did not
differentiate between private and federal loans. Accordingly, plaintiff was not
obligated to contribute to repayment of Zachary's private loans that defendant
co-signed because he was only obligated to contribute after applying Zachary's
loans.
As to the cost of Zachary's senior year, the court found Zachary did not
apply for loans consistent with the PSA and there was no apparent reason why
he would not have been able to obtain funding through another private loan.
Zachary was obligated to so under the PSA. By failing to demonstrate that
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Zachary had diligently applied for college loans to finance his senior year,
defendant did not establish plaintiff was required to contribute or that he had
violated the PSA. In any event, requiring plaintiff to contribute fifty percent of
the final year expenses would be contrary to plain language of paragraph 4A of
the PSA, which apportioned responsibility for contribution to college expenses
"based upon their respective abilities to pay, taking into consideration the
parties['] income and assets from all sources."
The trial court considered the three-year delay in filing the 2018 motion.
The fact that a parent seeks contribution only after a child graduated from
college is "significant and tip[s] the scale in favor of denial of [defendant's]
request for contribution." Gac, 186 N.J. at 535. As explained by the Court:
Obviously, the factors set forth in [Newburgh v. Arrigo,
88 N.J. 529 (1982)] and reaffirmed today contemplate
that a parent or child seeking contribution towards the
expenses of higher education will make the request
before the educational expenses are incurred. As soon
as practical, the parent or child should communicate
with the other parent concerning the many issues
inherent in selecting a college. At a minimum, a parent
or child seeking contribution should initiate the
application to the court before the expenses are
incurred. The failure to do so will weigh heavily
against the grant of a future application.
[Id. 546-47 (footnote omitted).]
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Thus, the trial court properly considered the three-year delay in filing the
application without undertaking a laches or waiver analysis.
Lastly, each party argues the trial court erred by denying their respective
request for counsel fees. Their arguments are without sufficient merit to warrant
extended discussion in a written opinion. R. 2:11-3(e)(1)(E). The counsel fee
applications were denied without prejudice. Defendant's motion was denied in
its entirety. See R. 5:3-5(c)(7) (the court should consider "the results obtained").
The trial court's finding that plaintiff did not have any ability to contribute to
defendant's counsel fees is supported by the record. See R. 5:3-5(c)(1) (the court
should consider "the financial circumstances of the parties"); R. 5:3-5(c)(2) (the
court should consider "the ability of the parties . . . to contribute to the fees of
the other party"). Its finding that defendant's motion was not filed in bad faith
is also supported by the record. See R. 5:3-5(c)(3) (the court should consider
"the reasonableness and good faith of the positions advanced by the parties ").
Accordingly, we discern no abuse of discretion.
Affirmed.
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