A.R. v. T.R.

1

A.R.,^[1] Plaintiff-Respondent, v. T.R., Defendant-Appellant.

No. A-0974-21

Superior Court of New Jersey, Appellate Division

February 27, 2023

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.

Submitted January 23, 2023

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No FM-18-0001-05.

T.R appellant pro se.

Picillo &Picillo, PC, attorneys for respondent (Natalee A. Picillo, on the brief).

Before Judges DeAlmeida and Mitterhoff.

PER CURIAM

In this post-judgment matrimonial matter, defendant T.R. appeals from an October 8, 2021 Family Part order, which denied defendant's motions for reconsideration and granted plaintiff A.R.'s cross-motion to correct the calculations utilized to determine the monies allegedly owed to defendant. We affirm, substantially for the reasons articulated in Judge Haekyoung Suh's well-reasoned written opinion.

We discern the following facts from the record. The parties were married on September 21, 1996. Two children were born of the marriage, T.X.R.^[2] (born in 1997) and C.R. (born in 1998).

A Judgment of Divorce ("JOD"), which incorporated the parties' Property Settlement and Support Agreement ("PSA"), was entered in this matter on December 29 2003. As pertinent here, Article XIV of the PSA dealt in part with payment of the children's college expenses. In paragraph four, defendant agreed to pay $12,500 ($6,250 per child) into 529 accounts for the children by December 31, 2009. Paragraph ten provided:

With a portion of the net proceeds of sale from the former Marital home received by [defendant] and from the net sale proceeds from the sale of the former Hoboken Condominium by [defendant], both of which [plaintiff] has acknowledged are immune from equitable distribution, [defendant] has created two 529 Accounts, one for each of the children at Alliance. As of February 13, 2003, the value of each 529 Account was approximately $50,000. The Parties agree that these monies are to be used for the benefit of the children and in accordance with Rules and Regulations governing 529 Accounts.

With respect to college contributions, paragraph eleven included:

The Parties will contribute to the college educational expenses of the children relative to the costs of room, board, books and tuition, based upon their respective abilities to contribute, considering their then respective assets, liabilities, income and expenses. Neither Party will be compelled to contribute unless there is a shortfall between the aforesaid college costs and the ability to pay for same from any or all of the following sources: substantial assets of the Child(ren); income of the Child(ren); 529 Accounts or successors thereto; Child(ren) savings accounts; and/or scholarships, financial aid, student loans or other similar financial resources available to the Child(ren). The Parties and each child are to agree on where each child will receive post-high school education, considering the relevant financial circumstances of the Parties, the wishes of the Child(ren), the opportunities available to the Child(ren) and the needs of the Child(ren).

Despite the explicit terms of the PSA, the parties have been unable to agree on their proportionate share of the children's college expenses, triggering extensive litigation that continues to date. Currently, T.X.R. is twenty-five years old and has graduated from Trinity College in Dublin, Ireland; C.R. is twenty-four years old, has dropped out of Raritan Valley Community College, and-by consent order dated July 15, 2020-was deemed emancipated as of May 29, 2020. Defendant's obligation to pay for C.R.'s college has therefore been vacated. As of March 31, 2021, the ending balance in T.X.R.'s 529 account was $62.93 and the ending balancing in C.R.'s 529 account was $4,154.77.

On July 14, 2009, after plenary hearings conducted on March 30 and July 10, the court entered an order finding that the 529 accounts established by defendant at the time of divorce were used in accordance with the PSA and further ordered defendant to create a second 529 account. Specifically, the July 14, 2009 order:

ORDERED that the 529 account which will be established by December 2009 is an account intended to be used to pay the educational expenses of the children prior to any individual contribution by [p]laintiff or [d]efendant; and it is further

ORDERED that[d] efendant shall fund the 529 account as provided for in the agreement; but [p]laintiff shall be listed as the owner of the account. Neither party may use any funds from this account except with the written consent of the other party. Plaintiff shall provide on a timely basis, copies of statements of the account to [d]efendant ....

For reasons unknown to the court, the 529 accounts at Franklin Templeton Investments for T.X.R. and C.R. were not transferred to plaintiff until September 6, 2016. Thereafter, the parties continued to dispute the allocation of monies in the 529 accounts and the parties' responsibilities to pay for their children's college expenses.

In an October 10, 2017 order, the Family Part ordered defendant to continue to contribute two-thirds of the children's college tuition and expenses, absent an agreement to the contrary. In an August 17, 2018 order, the court enforced a prior January 3, 2018 order, which provided that "[p]laintiff shall pay [one-third] of the college educational expenses of the children unless and until the parties negotiate and/or mediate a new arrangement under the PSA." The court noted that plaintiff had presented prima facie proof that she had paid her one-third share of T.X.R.'s college expenses. The court further clarified that plaintiff "may fund or partially fund her one-third [] obligation through loans [T.X.R.] is eligible for, which she 'guarantees' by making the payments, regardless as to whether [p]laintiff is a promisor or guarantor of the [n]ote."

Defendant, however, continued to insist that he paid more than his two-thirds share of the children's college expenses while plaintiff paid less than her designated one-third share. Therefore, defendant filed yet another motion to find plaintiff in violation of litigant's rights for failing to properly utilize the funds contained within the children's 529 accounts, and plaintiff filed crossmotions, which resulted in the court's June 25, 2021 order. In that order, the court found that plaintiff failed to satisfy her obligation to provide defendant with copies of statements from the 529 accounts and compelled her to provide defendant with the requisite information regarding all disbursements and any remaining funds in the children's 529 accounts.

Thereafter, plaintiff provided the requisite proofs to defendant, which resulted in defendant filing a motion to compel plaintiff to pay him $14,771.51, representing his alleged overpayment toward the children's college expenses. On August 27, 2021, Judge Suh entered an order, which provided:

1. Defendant's motion to compel plaintiff to pay him $14,771.51 representing his alleged share of the children's college costs paid from their respective 529 accounts is DENIED. ...

3. Plaintiff's motion to permit her to pay two-thirds [] of the funds disbursed from [T.X.R.]'s 529 account by refunding same, to be used to pay for [T.X.R.]'s master's degree program, is DENIED.

In Judge Suh's reasoning for paragraphs 1 and 3, she explained:

[i]n accord with the July 14, 2009 [o]rder, the proper method to calculate defendant's contribution to the children's college costs would be to subtract $22,157.27 from the total tuition paid on behalf of both children. The remaining funds in the 529 accounts ($4,154.77 + 62.94 as of March 31, 2021) should have also gone towards the children's college tuition before defendant would have been obligated to contribute, totaling $26,374.98. Defendant would not have been obligated to contribute until $26,374,98 in 529 funds were used to contribute towards same. ...

Because the court does not have an accounting of the total tuition paid, the court is unable to determine whether defendant is entitled to repayment. If either party furnishes proof of the entire cost of tuition for [T.X.R.] and [C.R.], $26,374.98 should be deducted from same, then the remaining amount should be divided between the parties, plaintiff one-third, defendant two-thirds. If defendant furnishes proof he paid more than this amount towards the children's college costs, he would be entitled to a credit. However, absent proof of these expenses, the court cannot grant defendant his requested relief. Defendant's motion to compel plaintiff to pay him $14,771.51 representing his alleged share of the children's college costs paid from their respective 529 accounts is DENIED.

. . . The 529 accounts should not be refunded, as same were ordered to be depleted before defendant was obligated to contribute to the children's college costs. Plaintiff's motion to permit her to pay two-thirds of the funds defendant alleges are owed to him from [T.X.R.]'s 529 account disbursements by refunding [T.X.R.]'s 529 account, to be used to pay for her master's degree program, is DENIED.

On September 13, 2021, defendant moved to amend paragraph one of the August 27, 2021 order due to newly available evidence, on the grounds that he finally provided the court with an accounting of T.X.R.'s statement of fees paid to Trinity College. As for T.X.R., defendant claimed that he paid $81,429.09, or $97,714.91,^[3] towards her Trinity College tuition and other expenses. As for C.R.'s college expenses, defendant...