CHRISTINE DALENA VS. DANIEL T. DALENA (FM-19-0071-12, SUSSEX 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NOT FOR PUBLICATION WITHOUT THE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-0412-18T3
CHRISTINE DALENA,
Plaintiff-Respondent,
v.
DANIEL T. DALENA,
Defendant-Appellant.
________________________
Submitted September 30, 2020 – Decided October 13, 2020
Before Judges Fisher and Moynihan.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Sussex County,
Docket No. FM-19-0071-12.
Daniel T. Dalena, appellant pro se.
Laufer, Dalena, Jensen & Bradley, LLC, attorneys for
respondent (Michelle A. Benedek, of counsel and on
the brief, William M. Laufer, on the brief).
PER CURIAM
In this post-judgment matrimonial matter, defendant Daniel Dalena
appeals from a final order and other interlocutory orders that collectively
awarded plaintiff Christine Dalena reimbursement of, among other things,
college tuition expenses for the parties' three children. Daniel contends the trial
judge misconstrued the emancipation and college expenses provisions in the
parties' property settlement agreement (PSA), as well as in entering the orders
that compelled his payment of counsel, mediation and late fees. We find no
merit in any of his arguments and affirm.
The parties to this matrimonial action are both attorneys. They married in
1989 and had three children: Matthew, Brielle, and Justin, who were born in
1991, 1993, and 1998, respectively. The parties separated around 2002, and the
children continued to live with Christine in the marital home.
Christine filed a complaint for divorce in 2011; Daniel filed a
counterclaim seeking the same relief. They resolved all their existing
differences, and a dual judgment of divorce, which incorporated the PSA, was
entered on January 30, 2013.
The PSA stipulated that the parties both waived alimony and that Christine
would be the primary custodian of the children, who were then twenty-one,
nineteen, and fourteen. Of particular interest here is the parties' stipulation that
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emancipation would result from the first of six events: (1) a child's death; (2) a
child's marriage; (3) the child's graduation from high school and reaching the
age of eighteen "or the completion of four . . . continuous academic years of
college or vocational education or other post-high school education, which shall
commence within six months from graduation of high school, whichever last
occurs"; (4) the child's entry into the military; (5) the "termination of education
or engaging in full-time employment or upon and after the obtaining by the child
of eighteen . . . years of age" 1; and (6) any other circumstance acknowledged by
law. The third and fifth subsections are implicated here.
The PSA also addressed college costs and selection, requiring
unemancipated children to
apply for any financial aid and scholarships that may be
available to help defray the costs of their attendance at
college [and] to apply for student loans for 2 of their 4
years at college (not to exceed $10,000.00 per child in
the aggregate) so that all children are treated fairly.
After the deduction of financial aid, student loans, and scholarships, both
Christine and Daniel agreed "to be equally (50/50) responsible for the net
college educational costs of the minor children." They also stipulated "[t]he
1
The PSA limits the impact of a child's "partial employment" in specific ways
not relevant to our disposition of this appeal.
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choice of where the child[] shall attend college" would be agreed upon by both
parents and the child, and that such "consent shall not be unreasonably withheld,
so as to ascertain the reasonableness of the costs thereof and the appropriateness
of said curriculum."
Of interest as well is the PSA's provision that all the support provisions
"are non-modifiable regardless of any change in circumstances," and the parties
stipulated they had "considered all foreseeable and unforeseeable events
occurring to either of them in accepting these provisions."
The parties moved and cross-moved numerous times about child-related
issues between 2013 and 2017, resulting in the entry of numerous orders. Issues
that could not be resolved on the papers were developed during a three-day
evidentiary hearing in July 2018, and the following month the judge entered an
order resolving all remaining issues.
Daniel appeals, arguing that the judge erred: (1) in imposing on him
certain costs arising from Matthew's education; (2) in failing to consider Brielle
emancipated on an earlier date; (3) in finding the costs of Justin's attendance at
Muhlenberg University to be reasonable; (4) in awarding Christine $3000 in
attorneys' fees; (5) in requiring Daniel's payment of certain health insurance
costs that he claims were undocumented; (6) in imposing penalties for Daniel's
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late payments; (7) in adjusting Daniel's share of the mediation costs; and (8) "in
more than doubling the judgment th[r]ough QDRO."2 We find insufficient merit
in the last five of these issues to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E). And, for the reasons that follow, we reject the first three issues,
in which Daniel challenges the relief granted to Christine arising from her
bearing of certain college expenses for all three children.
Matthew. The record reveals that Matthew started his college education
in the south in 2009. After one semester, Matthew transferred to a New Jersey
college, and then transferred for the start of his sophomore year to the University
of Maryland, which he attended without interruption through his fourth year. In
2013, during Matthew's fourth year (his third at the University of Maryland), the
parties entered into the PSA. Around the same time, Matthew was advised by
the University of Maryland that although the credits he earned at the schools he
2
In the eighth point, Daniel claims that while the trial judge ascertained that he
was obligated to Christine for all the items in question in an amount slightly in
excess of $60,000, the qualified domestic relations order (QDRO) authorized
the withdrawal of slightly less than $130,000 from Daniel's 401K. This,
however, did not double his liability to Christine; the judge found, ba sed on
information from an accountant, that this was the "grossed-up" amount
necessary to provide for any taxes, penalties, and fees from the withdrawal while
netting Christine the $60,000 amount she was owed. If Daniel was desirous of
avoiding this consequence, he need only have paid the $60,000 to Christine in
the months allowed him prior to entry of the QDRO. We find no abuse of
discretion in this disposition.
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attended his freshman year had been accepted, he was still required to complete
two other courses to fulfill Maryland's core requirements. Matthew was allowed
to participate in the May 2013 graduation proceedings, but the school would not
release his diploma until the two courses were completed. Matthew completed
the required courses at the County College of Morris (CCM). Christine bore the
expense.
Daniel asserted that he was not obligated to share in either the expense
incurred for the two CCM courses or for child support accruing after the
graduation ceremony at the University of Maryland in May 2013. In his view,
Matthew was then emancipated under the PSA definitions quoted above. In
seeking Daniel's share of the CCM expenses, Christine did not seek child
support relating to Matthew after May 2013. She only sought Daniel's share of
the CCM expenses, which amounted to less than $1000. In ruling on the papers,
the motion judge determined that these expenses were "reasonable and necessary
in order for Matthew to complete his college requirements" and graduate from
Maryland, concluding that Daniel should be held liable to reimburse Christine
for half that amount.3
3
The record provides differing numbers for these amounts. It suffices for our
purposes to note that the total expenditure for which Christine sought relief was
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Daniel's argument is that Matthew should have been deemed emancipated
in May 2013, and he should not be held accountable for his share of this
additional minor cost that accrued shortly thereafter. We agree that the
obligation to pay college expenses was not so rigidly prescribed in the PSA or
in law as to free a parent from paying a share of such an expense. Neither the
child nor the parent willing to bear the expense need turn such square corners to
secure an unwilling parent's fair and equitable share of a necessary college
expense.
Brielle. When the parties entered into the PSA, Brielle was in her
sophomore year at the University of Delaware. For various reasons, she decided
– and with Daniel's encouragement – to take a leave of absence with the firm
intention of returning to school the following Fall. The parties agreed to allow
Brielle to spend time in Europe during this sabbatical; in fact, Daniel agreed to
bear one-third of the expenses. Christine advanced the necessary funds and
Daniel paid $800 toward his portion but later failed to reimburse the remaining
share of slightly more than $500.
less than $1000, so Daniel's share – the sole amount in question in the disposition
of the Matthew-related claims – was less than $500.
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In February 2013, after Brielle returned from Europe, Daniel agreed to let
Brielle work part-time as an intern in California for a few months while she
applied to other colleges. She resided in California with a cousin of Christine's,
and Daniel paid a portion of her expenses. In April, she requested her parents'
permission to complete a second internship during the summer, anticipating this
would enhance her employment search after graduation. In May, Daniel agreed
to pay one-third Brielle's expenses provided he received a sixty-day extension
to make a payment of unpaid pendente lite support. Christine agreed and
advanced all the funds Brielle required to stay in California; Daniel ultimately
failed to reimburse his share.
During the second internship, Brielle applied to and was accepted at a
number of colleges. Due to an omitted transcript from her application, the
University of Maryland delayed her admission until January 2014, and so Brielle
remained in California and took a class at UCLA. She resumed her full-time
college education at Maryland in January 2014, and Daniel voluntarily paid his
share of her tuition and board for the Spring 2014 semester.
By motion, Daniel argued Brielle became emancipated when she took a
break in her college education in 2013. We reject Daniel's argument that the
requirement in the PSA that a child be emancipated at the age of eighteen unless,
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among other things, the child is engaged in and completes "four . . . continuous
academic years of college" (emphasis added), compelled a ruling that Brielle
was emancipated when she took a leave of absence in January 2013 to travel
abroad for a month and then to take two internships in California before
returning to school in 2014. The break Brielle took from school was with th e
consent and encouragement of both parents; Daniel participated in Brielle's
consideration of taking a leave of absence, consented to it, knew she fully
intended to return to college, approved her plan to complete the two internships
in California and agreed to contribute to the expenses incurred, was involved in
Brielle's applications for returning to school in 2013, and voluntarily made
payments toward her Spring 2014 tuition and other expenses. The judge
correctly determined that Brielle had not moved beyond the sphere of her
parents' influence. See Fillipone v. Lee, 304 N.J. Super. 301, 308 (App. Div.
1997). We agree and conclude that it would be inequitable for a parent – after
agreeing to and contributing toward a child's leave of absence from school – to
hold that sabbatical against the child, or, ultimately, against the more
understanding parent who contributed more than a fair share to the remaining
college expenses. In addition, we have not viewed a brief break in a college
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education as compelling emancipation in all circumstances. See Keegan v.
Keegan, 326 N.J. Super. 289, 295 (App. Div. 1999).
Lastly, we note – as Christine argues – that the parties, as a result of a
later round of motions, entered into a consent order that declared Brielle
emancipated as of June 1, 2016. Having consented to the entry of that order
without any attempt to reserve a right to challenge the earlier order, Daniel
cannot now complain that Brielle was emancipated at an earlier date.
Justin. Unlike his siblings, Justin did not attend the University of
Maryland but instead matriculated at Muhlenberg University. Daniel argues that
what he was ordered to pay toward Justin's education was unreasonable. We
affirm the order in this regard substantially for the reasons set forth in the judge's
thorough and thoughtful fifty-one-page written opinion. We add only the
following brief comments.
Devoting only slightly more than two pages of legal argument to this
point, and with little specification to the record and few citations to legal
authorities, Daniel poses three separate questions about the judge's
determination.
First, Daniel argues that the cost of Justin's education exceeded that
incurred for his siblings. Daniel claims that "nothing could be more fair and
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reasonable tha[n] to put all three children on a similar status with respect to
college costs." While it is true that the PSA exhibits a desire that all three
children be "treated fairly" in this regard, there is nothing about the relevant
PSA provisions that limits a parent's required contribution to that which was
paid for other siblings or that the obligation for a younger child is somehow
capped at the amount expended for older children. Moreover, the judge
conducted an evidentiary hearing about the reasonableness of the expenses and
the fairness of requiring Daniel's contribution and made findings, which
command our deference. See Cesare v. Cesare, 154 N.J. 394, 412 (1998). Even
if the polestar for fixing a reasonable cost is what was expended for Justin's
older siblings, the judge found that the expense of sending Justin to Muhlenberg
University was not significantly greater than the cost of sending the others to
the University of Maryland when factoring in Justin's $10,000 annual merit
scholarship. In short, finding such a similarity in expenditures, the judge
concluded that the cost for sending Justin to Muhlenberg was reasonable and
that it was fair and equitable to require Daniel to equally share in those costs.
We defer to those findings.
Second, Daniel argues that the lack of a sound relationship between he
and Justin somehow excuses or limits his obligation to contribute to Justi n's
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education. Not so. See Gac v. Gac, 186 N.J. 535, 546 (2006). In any event, the
judge was justified in finding that Daniel – not Justin – was the cause for the rift
in their relationship because Justin viewed his father as having made his
mother's life "a living hell."
Third, Daniel asserts that the judge was biased against him. He bases this
contention on the fact that the trial judge relied on testimony that Daniel asserts
never occurred. In his written opinion, the judge referred to the fact that Justin
was "understandably emotional as his father continued to badger and challenge
him on cross-examination." The judge added that, "[d]espite the level of
hostility defendant created through his cross-examination," when Justin was
asked by Daniel "'Why do you hate me?' Justin's honest reply was that 'I can't
say I hate you.'" Daniel argues that neither the quoted question nor the quoted
answer appear in the trial transcript.
Our review of the transcript confirms Daniel's argument that he never
asked that question and Justin never gave that answer. It may be the judge
rendered his decision without the aid of a transcript and interpreted what
transpired during the 158 pages (single-spaced) of similar cross-examination as
the equivalent of the nonexistent question and answer he included in his written
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decision.4 The point of the judge's finding was that in an attempt to demonstrate
through this rigorous cross-examination that he was not the cause for the rift
between the two, Daniel in fact proved exactly why Justin was justified in
feeling about Daniel the way that he did. Having carefully examined the entire
transcript, including the cross-examination in question, and the judge's written
decision, we find absolutely no evidence of bias. Indeed, we see too often
disgruntled litigants hurling such accusations against our able family judges;
sadly, this unsupported accusation comes from a member of the Bar who should
know better.
Affirmed.
4
For example, it may be that the judge was recalling Daniel's asking Justin:
"Do you love me?," to which Justin responded, "Absolutely." That question, of
course, sounds like the opposite of what the judge said in his opinion, but that
actual question ("Do you love me?") was an opportunity for Daniel to elicit from
his son, who was highly emotional during cross-examination – as is clear even
from a reading of a transcript, let alone the judge's express findings – to say that
he hated his father. There are other examples during the lengthy cross -
examination that could have led the judge to mistakenly recall the quoted
question and answer that never seems to have occurred. There was one exchange
in which Daniel attempted to badger Justin into saying that he (Daniel) was "the
least important person in our family." Also, in response to an objection, Daniel
argued to the judge that he was trying to show why Justin was "ang[ry] with me
and why he ha[d] a dislike [for] me," which the judge could also have mistakenly
equated with the thrust of the entire, painful cross-examination, the purpose of
which was to show that Justin did not like his father and that, in Daniel's view,
there was no reason for such feelings. In any event, we find no significance in
the judge's mistaken recollection about the cross-examination.
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