Preview:

a3452-09.opn.html
Original Wordprocessor Version
(NOTE: The status of this decision is Unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3452-09T4
KIM NITZ,
Plaintiff-Appellant,
v.
SEAN FITZPATRICK,
Defendant-Respondent.
January 21, 2011
Argued December 8, 2010 - Decided
Before Judges Ashrafi and Nugent.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part,
Bergen County, Docket No. FM-02-237-01.
file:///C|/Users/Peter/Desktop/Opinions/a3452-09.opn.html[4/20/2013 4:00:51 PM]




a3452-09.opn.html
Kim Nitz, appellant, argued the cause
pro se.
Sean Fitzpatrick, respondent, argued the cause pro se.
PER CURIAM
Plaintiff Kim Nitz appeals the Family Part's order of February 17, 2010, entered after a post-divorce
plenary hearing on defendant Sean Fitzpatrick's motion to modify his child support obligations. The parties'
twin sons, Sean and Liam, were nineteen years old at the time of the hearing. Sean had enlisted in the
United States Army, and Liam had started college. The court ordered Sean emancipated and terminated
child support for him as of October 4, 2009. It also ordered resumption of arrears payments by Fitzpatrick
following a short period of unemployment.
Nitz appeals only those provisions of the February 17, 2010 order that reduced Fitzpatrick's child
support obligation for Liam to $120 per week and that allocated Liam's net college expenses 50% to Liam
and the remaining 50% to be split 52% to Nitz and 48% to Fitzpatrick. Nitz seeks an increase in child
support to at least $150 per week and an increase in Fitzpatrick's college contribution to at least one-third
of the net expenses. In addition, she seeks reimbursement of her attorney's fees totaling almost $14,000.
Having reviewed the parties' pro se briefs, the record of the proceedings, and documents entered in
evidence, we affirm the child support order as within the discretionary authority of the Family Part, but we
remand to the Family Part for clarification or reconsideration of Fitzpatrick's obligation to contribute to
Liam's college expenses, and to consider any renewed application by Nitz for attorney's fees.
I
The parties were married in 1985 and divorced in 2001. Their only children are the twin boys, born in
January 1991. The boys have resided with Nitz since the divorce. Fitzpatrick has remarried and has a third
son.
At the time of the divorce, the parties entered into a marital settlement agreement requiring payment
of limited duration alimony to Nitz through 2016 and fixing the amount of child support for the boys. The
file:///C|/Users/Peter/Desktop/Opinions/a3452-09.opn.html[4/20/2013 4:00:51 PM]




a3452-09.opn.html
parties have returned to the court several times to litigate disputes about support payments and arrears.
In September 2009, Fitzpatrick filed a motion requesting emancipation of and termination of child
support for Sean; reduction of child support for Liam, who was starting his freshman year at the University
of Tampa; recalculation of the relative child support obligations of the parties because Fitzpatrick had lost
his job and now had another dependent to support; and temporary suspension during his unemployment of
prior orders requiring that he pay $500 per month toward arrears. The Family Part scheduled a plenary
hearing and entered a pendente lite order on October 29, 2009, declaring Sean emancipated and
terminating child support for him, modifying the child support for Liam to $194 per week based on potential
income of $108,000 per year attributed to Fitzpatrick, and temporarily suspending the arrears payments.
The plenary hearing was held on February 2, 2010. The only witnesses were the two parties. Nitz
was represented by counsel; Fitzpatrick appeared pro se.1 In considering Fitzpatrick's motion, the court
found it necessary to address allocation of college expenses for Liam because it would affect its order on
child support.
At the hearing, Fitzpatrick testified that he lost his job in June 2009 and did not have sufficient funds
to pay alimony of $1,000 per month, child support of $194 per week, college expenses for Liam, and the
expenses of his new family. He acknowledged that he had received severance pay equal to eight weeks'
salary, that he had received unemployment compensation, and that he had obtained new employment
beginning in December 2009 at an annual salary of $73,300, which was a substantial reduction of his
income.
Fitzpatrick testified that he had not been consulted about Liam's selection of the University of Tampa,
and that he had attempted to direct Liam to less expensive schools. He claimed that Liam was entitled to
payments from an annuity fund, and that he had also received the proceeds of a college fund established
by Fitzpatrick's parents in the amount of $4,375.95 as shown on a 1099 tax form.
Nitz testified that Fitzpatrick was fully aware that Liam was applying to the University of Tampa. She
entered in evidence emails exchanged between father and son showing that Fitzpatrick offered to visit that
college with Liam the previous spring. She testified that the total expenses at the University of Tampa for
Liam's freshman year were approximately $33,000, and Liam had obtained financial aid of $18,000, leaving
a balance of about $15,000 to be paid by the family. Nitz had co-signed a Sallie Mae loan with Liam for the
file:///C|/Users/Peter/Desktop/Opinions/a3452-09.opn.html[4/20/2013 4:00:51 PM]




a3452-09.opn.html
principal sum of $14,398.98, toward which she personally made monthly payments. According to the Sallie
Mae payment schedule, a total of $11,620.59 in interest would be payable over the twelve-year term of the
loan, making a total of $26,019.57 in principal and interest to be paid over time.
Nitz testified that Liam worked part-time while at college, thus receiving an income for his personal
expenses. She acknowledged that he had received on his eighteenth birthday a payment of $3,500 from an
annuity established when he was a child as settlement of a personal injury claim. The two remaining
payments of the annuity were to be $5,000 on Liam's twenty-first birthday and $7,285 when he turned
twenty-five. She said she had no knowledge of Liam receiving the proceeds of the college fund established
by Fitzpatrick's parents. Nitz testified further that Liam still resided much of the year in her home, and she
needed continuing child support to maintain the home and to help pay Liam's expenses.
The judge of the Family Part issued a written decision by which he found that Fitzpatrick's gross
income was $73,300 and Nitz's income $55,000. After adjustment for alimony, the comparative incomes
were $61,300 for him and $67,000 for her, which translates to about 48% for him and 52% for her of the
total gross income of both parents. The court concluded that Liam should be responsible for 50% of the net
$15,000 in college expenses because he had received the grandparents' college fund and had the ability to
earn income through part-time and summer jobs. The parents were to pay the balance of the net college
expenses in accordance with their relative percentages of income. This calculation meant that Fitzpatrick
would pay $3,600 toward Liam's freshman year expenses.
In determining child support, the court accepted Fitzpatrick's contention that he could not pay more
than $200 per week toward both child support and college expenses for Liam. It concluded that $150 per
week in child support was appropriate, but it reduced that figure to $120 per week because some of Liam's
expenses would be covered by Fitzpatrick's contribution toward college expenses. The court ordered
Fitzpatrick to pay his share of college expenses at the rate of $75 per week, making Fitzpatrick's total
support obligation for Liam $195 per week. Also, the court reinstated the requirement that Fitzpatrick pay
$500 per month for arrears.
II
Nitz contends Fitzpatrick should pay more child support because Liam still lives with her during most
of the year, including breaks, vacations and summers. She argues that she needs at least $150 per week in
file:///C|/Users/Peter/Desktop/Opinions/a3452-09.opn.html[4/20/2013 4:00:51 PM]




a3452-09.opn.html
child support to maintain her home and to pay Liam's expenses while he is not away at college. She argues
the court improperly reduced child support because of Fitzpatrick's obligations to his second family and
temporary unemployment. In her appellate brief, she recites a lengthy history of arrears and resistance by
Fitzpatrick in meeting his support obligations to his sons.2
When, as in this case, an order for child support is not controlled by the Child Support Guidelines,
see Pressler & Verniero Current N.J. Court Rules, Appendix IX-A to Rule 5:6A at 2447 (2011), the trial court
has discretion to determine the amount by flexibly applying the factors listed in N.J.S.A. 2A:34-23a. See
Pascale v. Pascale, 140 N.J. 583, 594 (1995). "If consistent with the law, such an award 'will not be
disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to 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) (quoting
Raynor v. Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999)).
The findings of Family Part judges are "binding on appeal when supported by adequate, substantial,
credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). "Because of the family courts' special
jurisdiction and expertise in family matters, appellate courts should accord deference to family court
factfinding." Id. at 413.
In this case, the Family Part judge considered the current case information statements of the parties
and Fitzpatrick's bank statements. See Zazzo v. Zazzo, 245 N.J. Super. 124, 128-29 (App. Div. 1990), certif.
denied, 126 N.J. 321 (1991); R. 5:5-2. The court relied on documented income information that the parties
provided. It took into account current living expenses of each party and the factors listed in N.J.S.A. 2A:34-
23(a). We find no abuse of discretion in the court's reliance on the evidence that was presented.
Nitz argues that the court failed to enforce her notice in lieu of subpoena demanding that Fitzpatrick
produce at the hearing documents to establish his income and expenses. The transcript of the hearing,
however, contains no application to enforce her notice in lieu of subpoena and to compel production of
documents. Generally, issues not raised in the trial court will not be considered on appeal unless they affect
the jurisdiction of the trial court or concern matters of substantial public interest. See Nieder v. Royal
Indem. Ins. Co., 62 N.J. 229, 234 (1973). Because enforcement of the notice in lieu of subpoena was not
raised in the trial court, we will not consider it on appeal.
file:///C|/Users/Peter/Desktop/Opinions/a3452-09.opn.html[4/20/2013 4:00:51 PM]




a3452-09.opn.html
We recognize that the total amount of child support and contribution toward college expenses
ordered by the court was less than Fitzpatrick was paying as child support for Liam before he began
college. Usually, supporting a child attending college increases, not decreases, a parent's financial
obligation. Nevertheless, having reviewed the record, we conclude that the trial court did not abuse its
discretionary authority in the amount of child support ordered.
III
Concerning Liam's first-year college expenses, the trial court considered the factors listed in
Newburgh v. Arrigo, 88 N.J. 529, 545 (1982). It correctly rejected Fitzpatrick's request to be relieved of
responsibility for Liam's college expenses because he was not consulted about the University of Tampa and
because that college is unreasonably expensive. See Gac v. Gac, 186 N.J. 535, 539-40 (2006). Not only did
the evidence prove Fitzpatrick was consulted, but Liam's net college expenses were significantly reduced
through financial aid and were thus consistent with many less expensive options.
Nitz argues the court erred in refusing to divide college expenses into three equal shares among
Liam, Nitz, and Fitzpatrick. Because the total payments on the Sallie Mae loan will be $26,019.57, not the
$15,000 net college expenses that the court took into consideration, Nitz argues that Fitzpatrick's
contribution for Liam's freshman year should be $8,675 (about 1/3 of $26,019.57), or alternatively $6,250
(about 24% of $26,019.57).
We disagree with Nitz that the figure to be allocated should be the full $26,019.57 over the life of the
Sallie Mae loan; that amount is not yet due and payable. The court appropriately began its calculation of
the parties' responsibility for college expenses with the $15,000 net figure. As we will discuss, however, the
court may have deviated from the apparent objective of its allocation order by allowing one party,
Fitzpatrick, to pay his share of those expenses over an entire year without adequate consideration of the
additional expense to Nitz and Liam in paying their shares in a lump sum when due to the college.
Also, the percentage allocations of college expenses among Liam, Nitz, and Fitzpatrick were within
the court's discretion to determine based on credible evidence in the record.3 Liam had resources to share
in the payment of his college expenses. Upon turning eighteen, he had received an annuity payment of
$3,500, and the court found that he also received the grandparents' college savings fund of $4,375.95.
file:///C|/Users/Peter/Desktop/Opinions/a3452-09.opn.html[4/20/2013 4:00:51 PM]




a3452-09.opn.html
Although we reject Nitz's argument as presented, we see irregularities in the court's decision and
order pertaining to Fitzpatrick's contribution for college expenses. The court's February 17, 2010 order
states:
[Fitzpatrick] shall contribute 48% of the college costs for Liam, after grants and
scholarships, of $3600 for the school year 2009-2010 at the rate of $75 per
week. The $75 per week shall be added to the $120 per week in child support
for a total of $195 per week until a total of $3600 has been collected for college
costs for 2009-2010.
The court's written decision of the same date also states the same figures but then adds ambiguously:
At $75 per week [Fitzpatrick] would pay $3900 during a calendar year (52 X
$75). Any shortfall will accrue until Liam is emancipated at which time
[Fitzpatrick] will continue to pay for college costs until his obligation is paid in
full.
Because the total of weekly payments would exceed the $3,600 allocated to Fitzpatrick, we cannot tell what
the court meant by "shortfall" that would accrue and be payable after Liam's emancipation.
At oral argument before us, Fitzpatrick was asked whether it was equitable for him to pay a
substantially reduced amount of child support and only 11% of his son's total college expenses ($3,600 ÷
$33,000 = 10.9%). He responded that his share was more than 11% because he understood his obligation
to be $7,200 for Liam's first-year expenses, payable over time because of his reduced income and greater
expenses. Similarly in his brief, Fitzpatrick stated that he was to pay $7,200 for Liam's first year of college.
The reason for the inconsistency between the court's order and Fitzpatrick's understanding may be the
court's designation of his share as 48% of 50%. If 48% is taken of the full net expenses of $15,000, the
resulting figure is $7,200. In these circumstances, the trial court must clarify Fitzpatrick's obligation for
college expenses and also indicate what it meant by the reference to a "shortfall."
The Family Part should also reconsider whether the weekly payment it allowed for Fitzpatrick is
consistent with the percentage allocation it intended to impose upon him. In allowing Fitzpatrick to pay his
share over time, the court did not take into consideration that Nitz and Liam also did not have funds
available to pay their shares to the University of Tampa but were required to take a loan for the balance of
the net expenses. By failing to allocate the interest expense for the Sallie Mae loan during the time that
Fitzpatrick was required to pay his share, the court effectively increased the percentage payable by Nitz and
reduced Fitzpatrick's effective percentage share.
file:///C|/Users/Peter/Desktop/Opinions/a3452-09.opn.html[4/20/2013 4:00:51 PM]




a3452-09.opn.html
On remand, the court may consider whether Nitz is entitled to reimbursement for some of the
interest she has paid on the Sallie Mae loan during the time of Fitzpatrick's payments to her.4
IV
Finally, Nitz argues she should be reimbursed for legal fees totaling $12,497.29, plus $1,500 retainer.
She argues that she has in the past been required to pursue arrears from Fitzpatrick and to seek
enforcement of court orders through further litigation. Fitzpatrick responds that he was the prevailing party
in these proceedings and should not have to pay Nitz's attorney's fees.
"[T]he award of counsel fees and costs in a matrimonial action rests in the discretion of the trial court."
Guglielmo v. Guglielmo, 253 N.J. Super. 531, 544-45 (App. Div. 1992); see also Gotlib v. Gotlib, 399 N.J.
Super. 295, 314-15 (App. Div. 2008) (application of R. 5:3-5(c) and decision to award counsel fees rests
within the court's sound discretion); Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004) (allowance
for attorney's fees and costs remains discretionary). "Success is . . . not a prerequisite for an award of
counsel fees." Guglielmo, supra, 253 N.J. Super. at 545.
Here, the trial court did not address attorney's fees in its written decision or order, but we also do not have
an explicit application in the Family Part record for attorney's fees. The record only shows that,
approximately one month before the plenary hearing, counsel for Nitz submitted to the court and Fitzpatrick
a certification listing his rates and services. We have found no specific request for attorney's fees at the
plenary hearing. Thus, the court did not err in omitting a ruling on attorney's fees from its decision.
Nevertheless, accepting the pre-hearing filing by Nitz's attorney as a request for attorney's fees, the Family
Part should consider on remand any renewed application for attorney's fees.
V
We affirm the court's child support order of February 17, 2010, but remand for clarification and
reconsideration of contributions for Liam's first-year college expenses and any renewed application for
attorney's fees. We do not retain jurisdiction.
1 The transcript of the hearing reflects unacceptable disrespect for the court and belligerence toward
file:///C|/Users/Peter/Desktop/Opinions/a3452-09.opn.html[4/20/2013 4:00:51 PM]




a3452-09.opn.html
opposing counsel displayed by Fitzpatrick. The judge of the Family Part was patient with Fitzpatrick's
interruptions and aggressive remarks. In accordance with Rule 1:10-1(a), the court has the power to
impose sanctions, such as money penalties, for misbehavior in the courtroom. See In re Daniels, 118 N.J.
51, cert. denied, 498 U.S. 951, 111 S. Ct. 371, 112 L. Ed.2d 333 (1990); In re DeMarco, 224 N.J. Super.
105 (App. Div. 1988); see also In re Lynch, 369 N.J. Super. 93, 99-100 (App. Div. 2004) (procedural and
substantive requirements of summary contempt adjudication under R. 1:10-1).
2 Both parties have argued matters that go far beyond the issues on appeal, and both have included in
their appellate appendices documents that were not part of the record in the trial court. Our review is
limited to the issues presented by the notice of appeal and evidence admitted by the trial court at the time
of the plenary hearing.
3 The record does not clearly indicate Liam's total personal responsibility for his freshman-year expenses. In
her appendix, Nitz has included Liam's second-year financial award statement. That document shows that
$6,500 of the total award of $17,500 for the second year is in the form of loans to be repaid by Liam. We
do not have a clear record of whether any part of the $18,000 award for the first year was also in the form
of loans that Liam will have to repay. At the plenary hearing, Nitz agreed with the judge's assumption that
the full $18,000 consisted of scholarships and grants. In his appellate appendix, however, Fitzpatrick has
attached a copy of an email from Nitz dated June 4, 2009, which states that only $11,600 of the financial
aid award for Liam's freshman year was by scholarships or grants; $22,400 of his expenses were to be paid
through loans or other sources.
Because no documents were admitted in evidence that establish Liam's personal obligation to pay his
freshman-year college expenses, including his personal loans, the court did not err in relying on Nitz's
testimony and concluding that the actual expenses to be allocated among the three were $15,000.
4 Nitz also asks us to order Fitzpatrick's contribution for Liam's second year of college. We do not sit as a
court of original jurisdiction determining factual issues that were not presented to the trial court. Nitz must
move before the Family Part for that relief, if the issue has not already been resolved.
This archive is a service of Rutgers School of Law - Camden.
file:///C|/Users/Peter/Desktop/Opinions/a3452-09.opn.html[4/20/2013 4:00:51 PM]

Download a3452-09.opn.pdf

New Jersey Law