PER CURIAM
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, St. John and Guadagno. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-245-09. Nancy C. Ferro argued the cause for appellant (Ferro and Ferro, attorneys; Ms. Ferro and Victor F. Azar, on the briefs). Stacey A. Cozewith argued the cause for respondent (Snyder & Sarno, LLC, attorneys; Edward S. Snyder, of counsel; Ms. Cozewith, Mr. Snyder and Ruth Kim, on the brief). PER CURIAM
Defendant Anthony R. Conti appeals from a final judgment entered by the Family Part on June 12, 2013, which awarded plaintiff Michelle M. Gelinas palimony, other monetary relief, and attorney's fees. We affirm.
I.
We briefly summarize the relevant facts and procedural history. The parties met in 1981, while they were both working for an accounting firm. Defendant was a partner in the firm, in charge of mergers and acquisitions. Plaintiff worked for the firm as an accountant. At the time, plaintiff was not married and had no children. Defendant was married and had two children. The parties began a relationship, and in December 1984 or January 1985, moved into an apartment in Secaucus.
In 1985, defendant and others purchased a company that owned a retail store, and defendant was named its Chief Executive Officer (CEO). Defendant hired plaintiff to serve as a part-time consultant for the company. In May 1986, the parties had a child, V.C. Before the child was born, the parties experienced difficulties in their relationship. After V.C.'s birth, the parties separated.
We refer to the children and others by their initials in order to protect their privacy.
In November 1986, plaintiff and V.C. moved into a condominium in Chatham, which defendant had purchased for them. Defendant then began to give plaintiff $5,000 per month, except for the time when she was working. Defendant also provided monies to establish a college fund for V.C.
Defendant left the company that owned the retail store, and thereafter worked as a consultant. In 1989, defendant became the CEO of a medical services company located in Georgia. He worked in Georgia during the week, and returned to New Jersey on the weekends. Although the parties lived apart, they continued their relationship and had two other children: C.C., who was born in December 1989; and M.C., who was born in December 1990.
In March 1992, plaintiff and defendant entered into an agreement to amicably resolve various issues, including custody, visitation, child support, housing, support for plaintiff, and payment of other expenses for the children. The agreement stated in pertinent part:
Except as may be otherwise provided elsewhere in this agreement, each party mutually remise, release and forever discharge the other from any and all actions, suits, debts and claims, demands and obligations whatsoever, both in law and in equity, which either of them ever had, now has, or may hereafter have against the other upon or by reason of any matter, cause or thing up to the date hereof. Each party acknowledges that it is their respective intentions that henceforth there shall be as between them only such rights and obligations as are specifically set forth and provided in this agreement.
After the parties signed the agreement, plaintiff lived with the children in a home in Chatham that defendant had purchased. Beginning in August 1996, the parties participated in counseling sessions with a psychologist. In October 1996, defendant divorced his wife. At that time, he was residing with his brother in New York. Defendant rented a condominium in Fort Lee beginning February 1, 1997. In 1998 or 1999, defendant moved his company from Georgia to New Jersey. In January 1999, defendant began a relationship with J.S., and in May 2000, J.S. moved into defendant's Fort Lee apartment.
In July 2001, the medical services company ceased operations, and defendant began to explore business opportunities in Italy. In September 2001, defendant moved to Italy. He claimed, however, that he returned to New Jersey every four to six weeks to visit his children. In July 2002, defendant ended his relationship with J.S., although they remained friends. He began a relationship with a woman in Italy, and they had a child in October 2002.
In February 2004, when the lease on the Fort Lee apartment expired, defendant rented an apartment in Far Hills. In 2006, plaintiff consented to the sale of the Chatham residence, and plaintiff and the parties' children moved with defendant to Italy, where defendant continued to pursue business interests. Plaintiff and the children returned to the United States in June 2007. Plaintiff rented a house in Chatham. In January 2008, plaintiff broke off her relationship with defendant.
In February 2008, plaintiff filed a complaint against defendant in the Family Part, seeking support and enforcement of the parties' 1992 agreement. Defendant disputed plaintiff's claims under the agreement, and asserted that he was entitled to credits for amounts due thereunder. Defendant also asserted that he had no continuing obligation to support plaintiff.
Judge Thomas C. Miller conducted a trial in the matter over seventeen days from March 19, 2012, to July 10, 2012. Thereafter, the judge filed a written opinion in which he found that defendant owed plaintiff $463,232.72, and awarded plaintiff lump sum palimony in the amount of $703,939. The judge also required the parties to continue to share the college expenses for M.C., and awarded plaintiff $200,000 in attorney's fees. The judge memorialized his findings in a judgment dated June 12, 2013.
Defendant appeals and argues that the judge erred by: (1) not enforcing the agreement as to both parties and by awarding plaintiff $463,232.72; (2) ruling that the parties' 1992 agreement did not preclude plaintiff from asserting a claim for palimony; (3) finding that plaintiff had a valid palimony claim and awarding her $703,939; and (4) awarding plaintiff counsel fees in the amount of $200,000.
II.
We turn first to defendant's contention that the trial court erred by not fully enforcing the agreement and awarding plaintiff $463,232.72. Defendant contends that the court erred by failing to give him credits towards his child support arrears.
We note initially that a trial court's findings of fact are binding on appeal if supported by sufficient credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). Deference to the court's findings "is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).
Furthermore, an appellate court should give deference to Family Part's findings of fact because of that court's special jurisdiction and expertise in family matters. Id. at 413. We note, however, that we owe no special deference to a trial court's interpretation of the law or its determination as to the legal consequences that flow from established facts. Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995).
A. Child Support.
The 1992 agreement between the parties provides that defendant would pay $5,300 per month for the support and maintenance of the unemancipated children, and that amount could be increased or decreased each calendar year through 1997, based upon changes in the cost of living in the New York-New Jersey metropolitan area. Thereafter, the amount of support reverts to $5,300 per month, although it "should" be reduced if one of the children graduates from high school, pursues post-high school education, and lives away from plaintiff.
The agreement further provides that the amount of child support shall be reduced in the event that in any year plaintiff has income that exceeds $60,000. According to the agreement, defendant would be entitled in that year to a reduction of his child support obligation in the amount of sixty cents for each dollar that plaintiff earned in excess of $60,000; however, defendant's obligation would not be reduced to less than half of his previously-defined obligation.
The parties stipulated that defendant paid all child support due through 1999. They also stipulated that from 1999 to 2011, defendant's support obligation was $693,417.40. Plaintiff alleged that defendant's arrears totaled $242,603.81. Defendant asserts the trial court should have awarded him certain credits toward the arrears.
Defendant argues that the amount of his child support should have been reduced in 2002 because in that year plaintiff had received an inheritance of about $80,000. He contends that the inheritance constituted "income" pursuant to the agreement, which states in part that:
For purposes of determining income which would provide [defendant] with the right to reduce child support or exercise other rights as contained elsewhere in this agreement, it is agreed and understood between the parties that any income received by [plaintiff] or any individual with whom [plaintiff] is residing in the residence, from any source earned or unearned, taxable or non-taxable.
Judge Miller determined that the agreement was ambiguous because it did not specifically indicate whether an inheritance would be considered "income." The judge therefore looked to dictionary definitions of the word "income," but noted that they did not include inheritance monies. The judge then turned to a publication of the Internal Revenue Services (IRS), which sets forth a detailed description of various forms of income, taxable and non-taxable. The judge noted that, as indicated in that publication, the IRS did not consider inheritance monies to be subject to income taxation, although such funds might be subject to estate and inheritance taxes.
The judge determined that plaintiff's inheritance monies did not constitute "income" under the agreement. The judge stated that the parties would have intended that the agreement be interpreted in light of the commonly used and understood meaning of the term "income," which does not include inheritance proceeds.
We reject defendant's contention that the judge ignored the terms of the agreement, and improperly considered other evidence in order to ascertain the intention of the parties as to the meaning of the term "income." When interpreting a contract, the court must determine the intention of the parties by reviewing the language used. Great Atl. & Pac. Tea Co. v. Checchio, 335 N.J. Super. 495, 501 (App. Div. 2000) (citations omitted). If the meaning of the agreement is ambiguous, the court may consider extrinsic evidence to aid in its interpretation. Ibid. (citations omitted).
Here, the judge correctly found that the agreement does not specifically indicate whether an inheritance is "income" and the court reasonably relied upon the IRS publication and other sources to define that term. The record supports the judge's finding that the term "income" in the agreement does not include monies that have been inherited.
Defendant further argues that the trial court should have given him credit for direct wire transfers he made to the children totaling $69,790.22. Judge Miller found that the agreement required defendant to pay child support to plaintiff in specified amounts and did not provide for direct payments to the children. The judge found that defendant was not entitled to a credit for the direct payments because these payments were made in addition to those required under the agreement.
The judge noted that the child support payments were intended to provide plaintiff with monies for expenses she incurred for the children. Defendant's direct wire transfers to the children would not defray those costs. We are satisfied that there is sufficient credible evidence for the judge's findings.
B. The "Italian Check" of $70,125.
Defendant argues that the judge erred by failing to give him a credit for $49,671, which was included in a check for $70,125 that defendant gave to plaintiff in 2006, when the parties were living in Italy. Defendant asserts that he provided the funds to plaintiff after she sent him an e-mail message, indicating that her bills were "piling up."
In her e-mail, plaintiff mentioned dental bills, credit cards, and health insurance. Defendant claims that the $70,125 check included $23,000 for health insurance; $16,000 for college costs; and money for certain dental bills for the children. Plaintiff testified, however, that defendant gave her the money so that she could go out and buy clothes.
The judge found that that plaintiff's testimony on this issue was "believable and credible." The judge stated that it would be consistent with defendant's "character" to provide the money to plaintiff so that she could purchase clothes, noting that defendant lived "a rather luxurious lifestyle while he court[ed] and support[ed] various women and children that he has borne." He also said that "[d]efendant saw himself (and acted and lived the part) as a lothario."
The judge also noted that plaintiff had given defendant a $30,000 credit from the $70,125 check, which the judge viewed as "generous" under the circumstances. We are convinced that the judge's findings are supported by the record.
C. College Expenses.
The agreement provides that defendant must establish a college fund for the children in the amount of $60,000, which defendant would manage. The agreement states that if the monies in the fund are insufficient, the parties would split the remaining costs for the children's post-secondary education equally.
It appears that, over time, the amount in the fund grew to $123,000, but suffered losses of about $10,000.
Defendant notes that a pendente lite order entered by the court on October 10, 2008, required him to pay plaintiff $4,000 each month, and these payments continued for more than two years. Defendant asserts that he reasonably believed part of these monthly payments were for M.C.'s college expenses. He asserts that the court should have given him a credit equal to the difference between the $4,000 monthly payments and the amounts he was required to pay for M.C.'s support.
We disagree. The trial court's order of October 2008 required defendant to pay $2,000 for M.C.'s support, and $2,000 for plaintiff's support. The order did not state that any part of the $2,000 paid for M.C.'s support should be applied to his college expenses. Thus, the record supports the trial court's determination that no part of those payments should be applied to reduce defendant's obligation under the agreement for the children's college expenses.
D. Medical Expenses.
Defendant contends that the trial court erred by failing to give him a credit for $8,516 that he allegedly paid for the children's ordinary medical expenses. He also contends the court should have given him a credit for a $10,555 dental bill he allegedly paid twice, once pursuant to the court's October 10, 2008 pendente lite order, and once with part of the "Italian Check."
The agreement provides that "[a]ll ordinary non-covered medical expenses incurred by either party on behalf of any of the children shall be [plaintiff]'s responsibility. All extraordinary non-covered medical expenses incurred by either party on behalf of any of the children shall be [defendant]'s responsibility." The agreement states that "[a]n 'extraordinary medical expense' is defined as any medical expense in excess of $1,000 for any incident, injury, illness or continuing course of treatment."
Defendant asserts that the court erroneously assumed that any amount over $1,000 was an extraordinary medical expense. He argues that certain payments that exceeded $1,000 were comprised of several medical expenses that were each less than $1,000, and were plaintiff's responsibility.
We are convinced, however, that Judge Miller reasonably determined that all payments that exceeded $1,000 constituted extraordinary medical expenses under the agreement. As the judge found, defendant did not present sufficient evidence to establish that the entire $8,516 was paid for individually-billed medical expenses that were less than $1,000.
We also reject defendant's contention that he should have been given a credit of $10,555 for a dental bill that he allegedly paid twice. The court's order of February 2, 2009, states that defendant had paid this bill on December 16, 2008. However, as noted previously, the court found that defendant gave the "Italian Check" to plaintiff so that she could go shopping for clothes. Thus, the record does not support defendant's claim that he paid the bill twice.
Moreover, plaintiff credited defendant with $30,000 from the $70,125 he had provided to her. Even if we assume that some of the $70,125 was used to pay the dental bill, the $30,000 credit is sufficient to cover any overpayment. We conclude that the court did not err by refusing to provide defendant a credit for the amount of this bill.
E. Tuition Paid in Italy.
Defendant argues that he should have been awarded a credit for the $45,760.29 he paid to send his sons to school in Italy. He contends the parties mutually agreed to sell the Chatham house and take the children to Italy. According to defendant, plaintiff voluntarily chose to let the children have this experience, and she was aware they would be required to attend a school in Italy.
Again, we disagree. Defendant voluntarily paid tuition for his sons to attend schools in Italy, and the agreement does not require plaintiff to pay all or part of these expenses. We reject defendant's contention that the court erred by failing to give defendant a credit for these payments as a matter of equity and fairness. The contention is without sufficient merit to warrant further comment. R. 2:11-3(e)(1)(E).
F. Credit Card Receipts.
Defendant contends that the trial court should have given him a credit for payments he made to support his family while they were living in Italy, and for certain direct payments made on behalf of plaintiff and the children in the United States. He claims these payments totaled $100,000.
Defendant argues that it was unfair for the trial court to require him to pay child support while refusing to credit him for these expenditures. We are convinced that these arguments are without merit. The agreement required defendant to pay child support, and it provides no credits for additional sums that defendant voluntarily chose to spend on behalf of plaintiff and his children.
G. Plaintiff's Shelter Expenses.
The agreement states that plaintiff could live in the Chatham house for the remainder of her life, provided she abides by certain provisions of the agreement. The agreement also states that defendant and his estate will pay the mortgage on the Chatham property until such time as plaintiff "voluntarily relinquishes her rights to remain in the premises."
Defendant argues that plaintiff forfeited her right to remain in the home by failing to: provide a statement of household income; and pay the property taxes, homeowner's insurance and certain utility bills for the home. He also argues that plaintiff violated the terms of the agreement by allowing her father to reside in the house, without paying defendant rent for his residence there, as provided in the agreement.
Here, the judge found that defendant was always aware of the amount of plaintiff's income, and defendant never demanded that plaintiff provide a formal statement of her income, even though required by the agreement. The judge noted that the parties had not insisted upon strict compliance with this provision of the agreement. The judge also found that the evidence showed that plaintiff paid all of the costs, carrying charges and expenses related to the Chatham residence.
In addition, the judge noted that plaintiff's father had lived with plaintiff in the Chatham house at various times while he was convalescing from an illness, and defendant must have been aware of that situation because he was in frequent contact with plaintiff during this time. The judge pointed out that defendant did not insist upon the rental payments under the agreement, noting that "the agreement was not meant to include that circumstance."
The judge observed that apparently "good sense and reasonableness caused [d]efendant to not make such a claim at the time of the occurrence." The judge stated that the parties' conduct memorialized a "reasonable interpretation of the terms of their agreement." We are convinced that there is sufficient credible evidence in the record to support the judge's finding that plaintiff satisfied all of the conditions in the agreement to allow her to remain in the Chatham residence for her entire life.
Defendant further argues that plaintiff voluntarily relinquished her right to remain in the Chatham house, which precluded her from subsequently asserting a claim for future shelter expenses. Here, the judge determined that plaintiff consented to the sale of the property but did not release and relinquish her right to have defendant provide her with a place to reside for life. The judge noted that plaintiff had agreed to the sale of the house when the family moved to Italy with defendant. The judge found that plaintiff's consent to the sale was based on defendant's promise, both express and implied, that he would provide her with shelter in Italy.
When plaintiff and the children returned to United States in June 2007, the parties discussed purchasing another home together. The judge found that this explained why plaintiff did not immediately demand a replacement for the previously-sold Chatham residence. The judge determined that plaintiff's failure to immediately insist upon replacement shelter was justifiable under the circumstances.
The judge found that defendant was contractually bound to provide plaintiff with shelter for life, and to conclude otherwise would be contrary to the clear intent and language of the agreement. The judge found that the equities weighed heavily in favor of plaintiff's claim to shelter expenses.
The judge stated that plaintiff would not have moved to Italy, and agreed to sell the Chatham house, if defendant had not expressly and implicitly agreed to provide her with shelter. The judge found that plaintiff credibly testified that she would not have agreed to sell the house if she had been aware that defendant was "unfaithful" to her with J.S., or the woman in Italy who bore him a child in 2002.
We are convinced that there is sufficient credible evidence in the record to support the judge's conclusion that defendant had a contractual obligation to provide plaintiff shelter for life. The record also supports the judge's finding that it would be contrary to the agreement and inequitable to conclude that plaintiff's right to shelter under the agreement was extinguished by her consent to the sale of the premises.
H. Retirement Fund for Plaintiff.
The agreement provides that defendant would create a trust fund in the amount of $100,000 for plaintiff, which would be for her benefit upon retirement. Defendant was required to pay the fund $800 per month for a period of ten years, beginning no later than September 1, 1997. The agreement states that the monies in the fund would be forfeited if plaintiff violated certain provisions of the agreement. Defendant contends plaintiff failed to comply with those provisions and forfeited any right she might have to the retirement fund.
The judge rejected defendant's claim, noting that defendant never created the fund, even though it was required by the agreement. The judge pointed out that, as of the time of his decision, defendant had never made any payments into the fund. The judge found that plaintiff had complied with the relevant provisions of the agreement and did not forfeit her right to the retirement fund.
We are convinced that there is sufficient credible evidence in the record to support the judge's findings. The judge reasonably determined that defendant was obligated to plaintiff for the entire $100,000 that should have been paid and accumulated "long ago had [d]efendant abided by the terms of the agreement."
III.
Next, defendant argues that the judge erred by finding that a palimony claim could exist "in the face" of the 1992 agreement. He also argues that the judge erred by finding that plaintiff had a valid claim for palimony and awarding her $703,939.
"[I]n general terms," an action for palimony "is a claim for support between unmarried persons." Devaney v. L'Esperance, 195 N.J. 247, 253 (2008) (citing Kozlowski v. Kozlowski, 80 N.J. 378 (1979)). The "indispensable elements" required to support a claim for palimony are "the promise to support, expressed or implied, coupled with a marital-type relationship." Id. at 258.
We note that under N.J.S.A. 25:1-5(h), which became effective in 2010, a promise to pay palimony requires a signed writing and the advice of independent counsel. These requirements do not, however, apply to the present matter as the statute does not apply retroactively. Macker v. Ross, 219 N.J. 565, 581-82 (2014). --------
In this case, the trial judge determined that when the parties entered their agreement in 1992, they "could not have recognized or known whether the separate and independent palimony obligation could arise from [d]efendant's conduct that occurred [after the] agreement." The judge noted that under the agreement, defendant had an obligation to pay spousal-type support until September 2003. The agreement did not, however, preclude the parties from entering into a new and separate agreement to pay support in addition to the payments required by the 1992 agreement.
We are convinced that the judge properly interpreted the relevant provision of the agreement. We reject defendant's contention that the 1992 agreement precluded plaintiff from asserting a claim for support based upon promises made in the years after the agreement was made and the contractual support payments ended, particularly in view of the undisputed evidence that plaintiff's relationship with plaintiff continued after 1992.
We also reject defendant's contention that the judge erred by finding that plaintiff established a valid claim for palimony, and awarding plaintiff $703,939, substantially for the reasons stated by Judge Miller in his opinion. The record supports the judge's findings that the parties lived together in a marital-type relationship for much of 1996 through 2008; defendant made express and implied promises to support plaintiff for life; and defendant's promise of support was made in exchange for valid consideration.
Defendant's remaining arguments on this issue are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
IV.
In addition, defendant argues that the trial court erred by awarding plaintiff counsel fees in the amount of $200,000. Defendant contends that he did not exhibit bad faith in the litigation, and the record shows plaintiff litigated the matter in bad faith. He argues that plaintiff has substantial income and did not establish financial need for the award of counsel fees. He also argues that the award of $200,000 was not warranted in view of the monetary relief awarded to plaintiff in this litigation.
When fees are sought in a matter in the Family Part, the court must consider the factors in Rule 5:3-5(c). Mani v. Mani, 183 N.J. 70, 93-94 (2005). When awarding fees under the rule, the trial court must consider
whether the party requesting the fees is in financial need; whether the party against whom the fees are sought has the ability to pay; the good or bad faith of either party
in pursuing or defending the action; the nature and extent of the services rendered; and the reasonableness of the fees.
[Id. at 94-95 (citations omitted).]
We review the trial court's award of fees under an abuse of discretion standard.
Yueh v. Yueh,
329 N.J. Super. 447, 466 (App. Div. 2000) (citation omitted).
Here, Judge Miller reviewed plaintiff's application for fees in light of the criteria in Rule 5:3-5(c). The judge noted that plaintiff's counsel fees were substantial. She had incurred fees of at least $323,517.37, and the results obtained by plaintiff were greater than those obtained by defendant. Moreover, some of defendant's defenses were motivated by bad faith, and the court had made credibility findings adverse to defendant.
The judge found that balancing the relevant factors, defendant should be required to pay a portion of the fees that plaintiff had incurred. The judge thereafter awarded plaintiff counsel fees in the amount of $200,000. We are convinced that the judge's findings on this issue are supported by the record, and the award does not constitute a mistaken exercise of discretion. Defendant's arguments to the contrary are without merit and do not warrant further discussion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION