Weitzman v. Weitzman

• Decision Date: 27 October 1988
• Citation: 228 N.J.Super. 346,549 A.2d 888
• Parties: Risa WEITZMAN (now Smith), Plaintiff-Appellant, v. Gerald WEITZMAN, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 346

228 N.J.Super. 346

549 A.2d 888

Risa WEITZMAN (now Smith), Plaintiff-Appellant, v. Gerald WEITZMAN, Defendant-Respondent.

Superior Court of New Jersey,

Appellate Division.

Argued Sept. 26, 1988.

Decided Oct. 27, 1988.

Jack L. Wolff, Morristown, for plaintiff-appellant (Scerbo, Kobin, Litwin & Wolff, attorneys, Jack L. Wolff, on the brief).

George E. Sabbath, Butler, for defendant-respondent (Sabbath, Struble, Appelt & Ragno, attorneys, George E. Sabbath on the letter-brief).

Before Judges DEIGHAN and BAIME.

The opinion of the court was delivered by

BAIME, J.A.D.

Plaintiff appeals from a post-divorce judgment order denying her motion for reimbursement of defendant's proportionate share of college expenses she advanced on behalf of the parties' two children. Plaintiff also appeals from other provisions contained in the order denying her application for reimbursement of medical, dental and insurance expenses. Relying upon a cryptic and ambiguous order which had been entered approximately four years earlier denying plaintiff's motion requesting somewhat similar relief, the trial court apparently determined that it was divested of the power to consider the present application on the merits. We reverse.

We need not recount the facts at length. The parties were divorced on April 10, 1973. The final judgment, which incorporated a property settlement agreement, was supplemented some six months later. The supplemental judgment directed defendant to pay plaintiff $25 per week for each of the parties' two children "until emancipation," to provide Blue Cross-Blue Shield medical insurance or its equivalent for the children's benefit, and to be "responsible for extraordinary medical and dental expenses." In the latter respect, plaintiff was required to give defendant advance notice of anticipated extraordinary expenses and to permit him to have the children examined by a physician or dentist of his own choosing.

Although the paltry record is generally uninformative, it is clear that both parties confronted difficult economic plights following the divorce. At least for some period of time, plaintiff found it necessary to accept public assistance. In a similar vein, defendant was sporadically employed during this period. Sometime in the autumn of 1982, plaintiff sought a court order compelling defendant to pay his proportionate share of expenses for the room, board and tuition of the parties' oldest child who had matriculated at Trenton State College. On December 17, 1982, an order was entered granting each party discovery. The matter proceeded at a desultory pace until December 1985 when the parties filed cross-motions, plaintiff's seeking a proportionate share of their daughter's college expenses, and defendant's seeking to suspend payment of child support without accumulation of arrears.

Unfortunately, the record is not altogether clear with respect to the manner in which these motions were resolved. No oral argument or evidentiary hearing was conducted. All that we have is a cryptic order signed by the then presiding judge of the Family Part, denying defendant's motion to suspend support payments. The order, which was prepared by plaintiff's attorney, contained provisions requiring defendant to pay a proportionate share of college expenses, but these portions were crossed out by the court. According to plaintiff's counsel, no appeal was taken from that order because defendant had moved to Texas and then California, and, in any event, was financially unable to contribute.

Plaintiff, who had remarried, continued to shoulder the burden of her daughter's college education. In addition, the younger of the two children ultimately graduated high school and matriculated at William Paterson College. Although she left college after three semesters, plaintiff expended $3,556.40 on her behalf during this period. Ultimately the older daughter graduated from Trenton State College. It is undisputed that plaintiff paid a total of $20,585.20 to finance her children's education.

Some three months after her daughter's graduation, plaintiff filed a motion seeking (1) reimbursement by defendant of his proportionate share of amounts paid for the children's college education, (2) reimbursement of payments made to secure medical insurance as a result of defendant's alleged failure to comply with his obligation under the supplemental divorce judgment, (3) reimbursement of extraordinary medical and dental expenses and (4) payment of arrearages. In support of her application, plaintiff emphasized that defendant's mother had recently died, leaving him with the bulk of her estate. It was estimated that the value of the estate was in excess of several hundred thousand dollars. Plaintiff argued that defendant, who had remarried, was obliged to reimburse her for expenses she had incurred on behalf of the parties' two children. Although the amount of arrearages was stipulated and paid, the trial court denied the remainder of plaintiff's motion. As we have noted, the trial court relied upon the prior order denying plaintiff's motion to compel defendant to contribute to the children's college education.

We are convinced the trial court was mistaken in determining that the order entered some four years earlier had a preclusive effect upon the issues plaintiff sought to raise. Initially, we point out that the prior order contained no reference to defendant's obligation to maintain Blue Cross-Blue Shield coverage on behalf of the children. Nor did it relate in any way to amounts plaintiff had expended for the children's orthodontics. Although the record discloses that the parties had engaged in negotiations pertaining to these matters, we stress that the prior order is wholly devoid of anything suggesting that these issues had been presented to the court. Succinctly stated, the trial court was inaccurate in its statement that the question of reimbursement for medical insurance and orthodontic expenses had been resolved previously by the order of January 16, 1984.

Beyond this, we are of the view that the prior order was not of the quality which would, as the trial court perceived it, divest it of the authority to rehear the matter. As we observed previously, no oral argument or evidentiary hearing was conducted on plaintiff's prior motion. No statement of reasons accompanied the order. Although the judge crossed out the portion of the proposed order requiring defendant to pay a proportionate share of the daughter's college expenses, it cannot fairly be said that this somewhat enigmatic action was intended to resolve the issue on the merits for all time. See Wanner v. Litvak, 179 N.J.Super. 607, 610-612, 433 A.2d 445 (App.Div.1981). Cf. State v. Reldan, 100 N.J. 187, 203-204, 495 A.2d 76 (1985).

The fact that plaintiff failed to appeal from the prior order or seek clarification from the trial court did not preclude her from renewing her application. It is undisputed that defendant had left the state, and, in any event, was impecunious. It would be wholly unreasonable to require plaintiff to file a costly appeal under these circumstances. Although perhaps it would have been wise had plaintiff sought clarification or taken other action to reserve her right to such reimbursement in the future, it hardly can be said that she voluntarily waived this right by failing to take such action.

Wholly apart from these considerations, the court's determination was plainly inconsistent with the broad equitable powers of trial judges to review and modify alimony and support orders at any time, as recognized by N.J.S.A. 2A:34-23. That statute provides in pertinent part that such "[o]rders ... may be revised and altered by the court from time to time as circumstances may require." Ibid. In Lepis v. Lepis, 83 N.J. 139, 416 A.2d 45 (1980), our Supreme Court stressed that "[a]s a result of this judicial authority, alimony and support orders define only the present obligations of the former spouses" and "[t]hose duties are always subject to review and modification on a showing of 'changed circumstances.' " Id. at 146, 416 A.2d 45. See also Smith v. Smith, 72 N.J. 350, 360, 371 A.2d 1 (1977). While we recognize that a claim of "changed circumstances" should not be a shibboleth used to open the floodgates to an avalanche of repeated motions, all seeking redress for the same perceived grievance, we are satisfied that plaintiff's motion and accompanying papers presented genuine issues that should have been addressed and decided by the trial court. See Wanner v. Litvak, supra, 179 N.J.Super. at 611-612, 433 A.2d 445.

Since the trial court did not consider plaintiff's application on its merits, we are obliged to reverse and remand for further proceedings. We merely offer the following comments for future guidance. The principal issue presented is whether defendant's recent inheritance, which now enables him to perform an obligation he was unable to assume when his children attended college, constituted such a "changed circumstance" as to compel him to reimburse plaintiff for the amounts she expended for that purpose. In this respect, defendant contends that the child support order contained in the supplemental divorce judgment operated "in praesenti" and reflected his then financial ability to pay. He claims that it would be unfair to retroactively increase his child support obligation based upon the unforeseeable happenstance of his inheritance.

The question presented is of first impression. We have long held that a court "has every right to appraise realistically [a spouse's] potential earning power." Mowery v. Mowery, 38 N.J.Super. 92, 102, 118 A.2d 49 (App.Div.1955), certif. den. 20 N.J. 307, 119 A.2d 791 (1956). "In treating the matter of support, our courts have always looked beyond the [spouse's] claims of limited resources and economic opportunity." Ibid. Although historically, "[t]he [spouse's] current income is the primary fund looked to,...