Rasmussen v. Rasmussen
| Decision Date | 13 July 2021 |
| Docket Number | A-1417-19,A-3369-19 |
| Parties | KAREN RASMUSSEN (n/k/a KAREN KEANEY), Plaintiff-Respondent, v. ROBERT W. RASMUSSEN, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 2, 2021
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No FM-02-1134-05.
Damiano M. Fracasso argued the cause for appellant.
Joseph M. Freda, III argued the cause for respondent (Gomperts Penza McDermott &Von Ellen, LLC, attorneys; Joseph M. Freda III, of counsel and on the briefs).
Before Judges Mawla and Natali.
In these appeals, which we consider back-to-back and have consolidated for the purpose of writing a single opinion defendant Robert Rasmussen challenges November 14, 2019 and March 16, 2020 Family Part orders that required him to reimburse plaintiff Karen Rasmussen for tuition costs and medical expenses for their children. After considering the parties' contentions in the context of the record and the applicable legal principles, we vacate the court's November 14, 2019 order to the extent it required defendant to reimburse plaintiff for his daughter's fall 2019 college expenses, and remand for further factual findings. We affirm all remaining and challenged portions of the November 14, 2019 order. We also vacate the court's March 16, 2020 order because it was entered in violation of the United States Bankruptcy Code's automatic stay provision.
To provide context for our decisions, we provide an extended discussion of the procedural history and facts derived from the record. Plaintiff and defendant, after a marriage of approximately nine years, divorced on August 29, 2005 pursuant to a final judgment of divorce, which incorporated their written property settlement agreement (PSA). During the course of their marriage, the parties had a daughter and son. In the PSA, defendant acknowledged he had not seen the children for several months and "voluntarily relinquished his parenting time rights."
Plaintiff and defendant agreed that they considered the PSA's terms "fair, reasonable[, ] and satisfactory," and their "obligation to support [their c]hildren shall remain until [their] respective emancipation." Emancipation was defined as "the facts in existence at the time one of the parents allege a child to be emancipated."
The parties also agreed to "equally share" the children's medical expenses not covered by insurance and "to contribute to the college/trade school/post-secondary education expenses of the [c]hildren." The PSA did not explicitly address the parties' involvement in the children's college decision-making process.
Plaintiff subsequently moved for sole legal and residential custody of the children, which the court granted in a May 28, 2010 order. On April 27, 2011, the parties entered a consent order reducing defendant's child support obligations because he filed a Chapter 13 bankruptcy petition. See 11 U.S.C. § 301. In that order, plaintiff and defendant agreed that defendant would remain responsible for thirty percent of the children's medical expenses and that all prior orders remained "in full force and effect" unless specifically modified.
After the parties' daughter turned nineteen-years-old, the court issued an October 10, 2018 administrative order terminating defendant's obligations to pay child support pursuant to N.J.S.A. 2A:17-56.67(a). The following month, plaintiff filed a motion seeking, among other relief, to vacate the October 10, 2018 order because the parties' daughter was a registered full-time college student, which plaintiff supported with a letter from the registrar of their daughter's college. Plaintiff also sought to enforce defendant's obligations under the previous orders to contribute towards the health and education expenses of the children, and for counsel fees.
On February 22, 2019, the court ordered defendant "for the reasons expressed on the record, "[1] to reimburse plaintiff for thirty percent of the children's medical expenses pursuant to the April 27, 2011 consent order. In addition, the court ordered plaintiff to send defendant copies of all unreimbursed medical expenses within two weeks of her receipt.
The court also un-emancipated the parties' daughter until her twenty-third birthday and ordered, as a college student, she had an "affirmative obligation to complete and sign a FERPA form, [2] giving [defendant] access to her grades, class schedule, . . . and financial aid information every semester that she is in college, in order to have [d]efendant . . . contribute towards her college costs." The court ordered again, "by consent," that defendant's proportionate share of his daughter's education expenses was thirty percent. In a separate March 29, 2019 order, the court denied plaintiff's request for counsel fees.
On September 10, 2019, defendant filed a motion "enforcing . . . [his] [r]ights as a [l]itigant," and seeking to vacate the court's February 22, 2019 order to the extent it obligated him to reimburse any of his daughter's college expenses. He specifically sought to determine "the amount of unreimbursed medical expenses, if any, the [p]laintiff is entitled to . . . based on [her] failure to substantially comply" with the February 22, 2019 order. Finally, he requested the court enter an order emancipating his daughter and awarding him counsel fees.
In his supporting certification, defendant asserted neither plaintiff nor his daughter provided him with the FERPA form granting him access to her college information. He stated plaintiff "wrote to [his] wife that [their daughter] was not attending college," and questioned whether his daughter was "still enrolled in and attending college anywhere." Defendant further certified that he received a letter from plaintiff's attorney prior to filing his motion seeking payment of medical expenses. He argued however, that plaintiff failed to comply with the time requirements included in the February 22, 2019 order when she sent the outstanding and unreimbursed medical expenses.
Plaintiff opposed defendant's application and filed a cross-motion to compel defendant to pay thirty percent of the children's unreimbursed medical expenses and college costs through the fall 2019 semester, and for counsel fees. Plaintiff certified that the FERPA form "was signed and provided" to the school on March 13, 2019, a copy of which she appended, and that "[a]ll [d]efendant had to do . . . was call the school." She also stated she provided defendant with proof of all unreimbursed medical expenses on April 13, 2019, "via certified mail [and] in conformity" with the February 22, 2019 order, and requested defendant reimburse her in an August 5, 2019 letter from her attorney, which was returned to plaintiff as "[u]nclaimed."
Neither party requested a plenary hearing to resolve the issues raised in the motion, and agreed to have the motions heard on the papers. They also waived oral arguments.
In a reply certification filed with the court on October 8, 2019, defendant stated he contacted the registrar's office of his daughter's college and that they did not have a signed FERPA form to grant him access to his daughter's information, and he alleged the form plaintiff produced to the court was fraudulently created. He also certified that he received notice to collect an unspecified delivery at the post office, but he was unaware it contained medical bills for which plaintiff sought reimbursement.
On November 14, 2019, the court denied defendant's motion in its entirety, and concluded defendant violated the February 22, 2019 order. The court also granted in part plaintiff's cross-motion and ordered defendant to pay all outstanding and unreimbursed medical and college expenses within five days of the date of the order.
In the court's corresponding statement of reasons, it found defendant's motion "repeated arguments previously litigated and decided" and concluded "[p]laintiff provided invoices for the medical expenses and proof of mailing these invoices to [d]efendant prior to the filing date." Further, the court noted defendant agreed to pay thirty percent of his daughter's college expenses by consent, as memorialized in the February 22, 2019 order. Absent a showing of duress, which defendant neither asserted nor established, the court concluded that provision of the order remained enforceable.
Regarding defendant's argument that plaintiff failed to file the FERPA form as required by the February 22, 2019 order, the court found the issue moot based on plaintiff's "evidence of compliance," and stated "[p]laintiff should be cognizant of the educational institution's policy regarding the need to file a new FERPA form every semester." It further noted defendant did not make any argument as to why his daughter should be emancipated "beyond his lack of relationship with her." Finally, the court reviewed the Rule 5:3-5(c) factors and denied both parties' request for counsel fees finding they each demonstrated good faith in making their motions.
The following day, defendant's counsel sent the court a letter asking whether it: 1) considered defendant's cross-motion and reply, 2) would stay its order requiring defendant to reimburse the children's expenses within five days, and 3) intended to file "a statement or opinion pursuant to [Rule] 2:5-1." The court did not respond to defendant's counsel's communication.
On January 14, 2020, plaintiff filed a motion to enforce the terms of the November 14, 2019 order. She also requested additional unreimbursed medical costs, contribution with regard to their daughter's spring 2020 semester college expenses, and for the court to impose ...
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