It is rarely a good sign when App Div says “this is the latest chapter in his effort to make life difficult for his ex-wife”
This case is an example of how not to handle yourself after the divorce more than it is an example of any specific child support or college expenses issues. By conducting himself in the way he did, Tafaro likely cost himself a Newburgh hearing where he could have possibly save money. That is why I ask my clients to focus on the facts and leave out the emotion. If you are facing a Newburgh hearing in NJ (any court) call our team of tough, smart lawyers to discuss your case.
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-4469-07T34469-07T3
MELANIE MILLER f/k/a
Argued April 22, 2009 – Decided
Before Judges Rodr�guez and Espinosa.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-339-03.
William J. Courtney argued the cause for appellant (Law Offices of William J. Courtney, L.L.C., attorneys; Mr. Courtney, of counsel; Laurie J. Bice, on the brief).
June L. Pellegrino argued the cause for respondent (Lee B. Roth Law Offices, attorneys; Ms. Pellegrino, on the brief).
Defendant Stephen Tafaro appeals from the March 20, 2008 post-divorce judgment order; which among other things, directed him to pay seventy-five percent of the college costs, including tuition and room and board, for his two children. The same order required him to reimburse plaintiff, Melanie Miller, $8,131.33, representing his share of the older child’s expenses for the Fall 2007 enrollment at Rutgers University and $7,142.55 for the Spring 2008 semester. Tafaro also appeals from the May 2, 2008 order, denying his motion for reconsideration. We affirm.
These are the salient facts. Tafaro is a pediatric dentist. Miller and Tafaro were divorced in June 2004, after seventeen years of marriage. The dual judgment of divorce included a Property Settlement Agreement (PSA), which provided for joint legal custody of the two children (a son now nineteen years old and a daughter now eighteen years old) and the appointment of a parent coordinator. The PSA also addressed the college costs for the children by providing:
The parties recognize that each may have an obligation to assist the minor children of the marriage financially regarding their future college costs. In light of the children’s ages, the parties agree to address the issues of college costs at the time they are incurred. The parties agree that the choice of college will be based upon the input of both parents as well as the child’s wishes, so long as the school preferred by the child provides a curriculum and an environment that is consistent with the child’s ability, aptitude and goals. The parents shall not unreasonably withhold consent on the selection thereof.
The Defendant will continue to pay child support so long as the children remain enrolled as full-time students for a period not to exceed four years after graduation from high school. The child support and education costs will be reviewed and adjusted as may be necessary at the time of each child’s enrollment in college, based on the issues of Newburgh v. Arrigo and the law at that time.
Despite the existence of a comprehensive PSA, there have been many post-judgment disputes. All of these have been precipitated by Tafaro’s refusal to abide by the terms of the PSA and/or subsequent court orders, or by his unremitting belligerence with Miller. In this course of action, Tafaro has not spared his children’s mental well-being. This appeal is the latest chapter in his effort to make life difficult for his ex-wife, his children and the parenting coordinators.
Pursuant to the PSA, Judge Stephen B. Rubin appointed John W. Thatcher, Esq., as parent coordinator. Shortly thereafter, there was a disruption in the father/children relationship. In support of her request for payment of a proportionate share of college expenses from Tafaro, Miller certified that “[p]rior to and ever since the entry of the Judgment of Divorce, [Tafaro’s] relationship among himself, [Miller] and [their] two children has been, to say the least, extremely strained.” By way of example, Miller discusses an incident that occurred on September 21, 2004, in which Tafaro “became completely out-of-control with the children.”
Upon picking up the children for parenting time, Tafaro informed them that he would not be returning them home that evening as he was obligated to do. The children became upset and the daughter attempted to get out of the moving car. Once at Tafaro’s home, the children refused to go inside and franticly called Miller to come and pick them up. Miller states that as the children approached her car, Tafaro began to yell that she was trying to kidnap the children. Tafaro proceeded to call 9-1-1, even after having been told by the parenting coordinator not to call the police in such situations. The police arrived and eventually the children returned home with Miller.
The following day, Tafaro informed Miller that as punishment for the children’s behavior they were to remove all of their belongings from his house by the end of their next weekend with him. Tafaro further told the children that they could only eat his food after asking and receiving permission. Miller states that during that weekend, things became so volatile among Tafaro and the children that the son threatened to commit suicide if he had to spend any more time with his father.
Following this incident, parent coordinator Thatcher wrote a letter to Judge Rubin in which he concluded:
Under the circumstances, I do not believe the children should be subjected to their father’s brutality. In my opinion, it is absolutely not in their best interest, and at the same time could lead to frightening circumstances. I do not believe [the son’s] threat of suicide was gratuitous. It must be taken seriously. I believe that joint custody should be terminated and that Ms. Miller be given full custody of the children on a temporary basis pending further order f the Court. Parenting time/visitation with Dr. Tafaro should be suspended and should only occur in the future under supervision. I believe it is clear that Dr. Tafaro needs psychological help and that the privileges of parenting should not be reinstated until Dr. Tafaro has proven his ability to the Court through a professional.
Miller subsequently filed an order to show cause. Judge Julie M. Marino suspended Tafaro’s parenting time on a temporary basis. On November 3, 2004, Judge Rubin continued the suspension of Tafaro’s visitation rights, but permitted parenting time at the initiation of the children. The order also stated that Miller was to have:
[F]inal authority in decisions regarding schooling, medical/psychological needs and other major decisions affecting their children. However, [Miller] shall notify and make best efforts to confer with [Tafaro], joint legal custodian, in all such decisions. Any counseling is to be done either by a psychologist or a psychiatrist. [Tafaro] shall not have direct contact with any such person selected by [Miller].
Tafaro moved for reconsideration of the November 3, 2004 order. Judge Rubin denied the motion to reconsider and appointed a new parent coordinator, Dr. William Campagna, Ph.D. Further, Tafaro was ordered to bring his child support current and to reimburse Miller for his share of the cost of the parent coordinator. Tafaro appealed the order denying reconsideration. We affirmed and denied Tafaro’s request for a plenary hearing. Tafaro v. Tafaro, No. A-4402-04T1 (App. Div. July 13, 2006).
Prior to the divorce, Miller had obtained a final restraining order (FRO) against Tafaro pursuant to the Prevention of Domestic Violence Act of 1991, N.J.S.A.to -35. The FRO was amended by Judge Rubin on July 13, 2005 to prohibit Tafaro from contacting the children’s therapist. 2C:25-17
Tafaro moved to have Dr. Campagna removed as parent coordinator; to vacate the judgment for arrears against him; to get a credit to his child support account; and to revise the amended FRO to eliminate the restraints preventing him from contacting the therapist. Miller cross-moved, seeking enforcement of prior court orders concerning payment of unreimbursed medical expenses and counseling fees for the children. Judge Rubin permitted Miller to execute on Tafaro’s assets to satisfy the arrears judgment and denied Tafaro’s other requests. Tafaro appealed. We affirmed. Tafaro v. Tafaro, No. A-1189-05T1 (App. Div. Aug. 16, 2006). We ordered Tafaro to pay $5,000 in counsel fees, plus costs.
Tafaro then moved to compel Miller to comply with the parenting time order entered prior to the divorce. The judge denied Tafaro’s request to enforce the parenting time order, finding that it was abrogated by the November 3, 2004 order. Tafaro’s motion to reconsider was denied.
Charles J. Most, Psy.D was appointed as the new parent coordinator on March 30, 2007. In a letter to the parties dated July 6, 2007, Dr. Most discussed a visitation plan because Tafaro had had no contact with his children in thirty-three months. Dr. Most recommended:
[I]n order for this to be successful the following must take place: Dr. Tafaro should involve himself in at least twice weekly psychotherapy with an analytically trained clinician of my recommendation. This should take place for at least six months prior to a further recommendation of a family psychotherapist for father and children, also of my recommendation. This recommendation is put forth in order to lower the anxiety level within Dr. Tafaro so that he can better manage his affect. Upon completion of the groundwork needed for visitation, a schedule will be recommended.
A few days later, Tafaro telephoned Dr. Most, indicating that he was not satisfied with the recommendations and was going to arrange a visit with the children on July 31, 2007. By letter dated July 18, 2007, Dr. Most stated that he “was not able to fully discuss this matter and find resolution with Dr. Tafaro.” Dr. Most further noted that he made phone contact with the children, who informed him that they did not want to see their father and feared for their safety. Dr. Most concluded the letter, recommending against the July 31, 2007 visit until further discussions could be arranged.
On February 19, 2008, Miller moved for reimbursement from Tafaro of his proportionate share of the expenses associated with the college costs of their children.
In support of her motion for apportionment of college costs, Miller certifies that she made numerous attempts to advise Tafaro of the children’s intent to attend college and the names of the colleges being considered. According to Miller, all such attempts were rejected by Tafaro. Tafaro was informed of the son’s SAT scores and his choice of Rutgers University. Upon the son’s enrollment at Rutgers, Miller paid $8,520.40 for tuition and room and board for the Fall 2007 semester. Additional expenses included: assistance in setting up the dorm room, $690.33; purchase of text books, $350; and incidentals, $50 per week or $1,281.04 for the semester. The total amount Miller expended for the Fall 2007 semester was $10,841.77. The Spring 2008 semester resulted in similar expenses, totaling $9,523.40. These costs took into consideration a $3,750 interest-free loan for the 2007-2008 school year.
According to Miller, she attempted to inform Tafaro of the daughter’s intent to attend college Fall 2008. There was no cooperation from Tafaro. Miller sent a letter to Tafaro, via certified mail, advising him of the daughter’s college choices. The letter was returned to Miller after three failed attempts at delivery were made. The daughter agreed to meet with her father at his home on January 18, 2008, in order to discuss her options for college. Miller states that after twenty minutes the daughter ran out of the house in tears.
In Tafaro’s responding certification he “totally disagrees with [Miller’s] interpretation of past events . . . .” Tafaro alleges that it was Miller who refused to verbally communicate with him between March 2001 and December 2006. In regard to the son’s education, Tafaro contends that he tried to be involved. He attended college night at the son’s high school along with Miller and the children. During his time there, Tafaro claims that both children refused to interact with him. Tafaro asked his son to call him on the phone so they could arrange a meeting. However, the son never followed up with a call. In August 2006, Miller notified Tafaro that she and the son would be attending an open house at American University. Tafaro informed Miller in writing that he would like to attend with them. However, Miller wrote back telling him that neither she nor the son were ready to spend time with him.
In March 2007, at Miller’s request, the son telephoned Tafaro. Tafaro invited his son to his home for dinner for a discussion about college. The son accepted the invitation. Tafaro states, however, that the night before their meeting, his son left a message on Tafaro’s cell phone stating that he would not meet at Tafaro’s home as he found it to be traumatic. The son suggested they meet at a caf�. Tafaro found this inappropriate, rejecting the son’s suggestion. The son, via email, then offered to speak with Tafaro at his office because the presence of Tafaro’s mother, who lived with Tafaro, offended him. Tafaro found his son’s email to imply that he would harm Tafaro and his mother if they were to meet. Thus, Tafaro felt it best to avoid any contact with his son.
Judge Fred H. Kumpf set Tafaro’s share of college costs at seventy-five percent. The judge went through the twelve Newburgh factors. With respect to the child’s relationship with the paying parent, a major point of Tafaro’s objection, the judge found:
Based upon the parties’ discussion of the applicable factors of Newburgh, it is clear that both parties should be responsible for contributing towards [the children’s] college expenses. The only factor that points against such a finding is that regarding the child’s relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance. While it appears that the children do not have a relationship with [Tafaro], this is but one of twelve factors to be considered and alone is not dispositive of a finding that [Tafaro] should be required to contribute to the college expenses of the parties’ children. Furthermore, [Tafaro’s] reliance on Gac v. Gac, 186 N.J. 535 (2006), is misplaced. The decision found that a father did not have to contribute to pay for his daughter’s college loans where there was no relationship between the father and the daughter, where the father paid child support while the daughter was in college, and where the daughter sought contribution after she had already graduated from college. The court found that a parent or child seeking contribution for college should seek an order for relief before such expenses are incurred. The failure to seek such an application should weigh heavily against the grant of a future application. Id. at 546-547.
Weighing all factors here involved, the parties shall be responsible for contributing their proportionate share of the combined income towards college expenses. Based on the information provided, [Miller] has a net income of $79,558 and [Tafaro] has a net income of $239,602. The total combined income of the parties is $319,160. Therefore, [Tafaro’s] proportionate share of the parties’ total income is 75%.
With respect to the award of $1,762.50 to Miller, the judge stated:
With regard to bad faith, [Tafaro] has refused to cooperate with regard to establishing the parties’ respective responsibility to contribute to the college expenses. These actions are clearly evidence of bad faith on the part of defendant. Therefore, [Tafaro] shall be responsible to reimburse [Miller] for counsel fees and costs associated with filing of this motion. [Tafaro] shall be responsible to reimburse [Miller] for counsel fees and costs associated with filing this motion in the amount of $1,762.50 within 20 days.
Tafaro argues on appeal that Judge Kumpf erred in ordering him to pay a portion of the children’s college costs. He argues that: “the clear language of the [PSA] was not given the proper weight” and the judge “failed to properly apply the Newburgh factors to this case or to order a plenary hearing . . . .” Tafaro also contends that the judge “abused his discretion in ordering [him] to pay seventy-five percent of all college costs.” He further contends that “the court erred in not reducing [his] child support obligation and by requiring him to pay seventy-five percent of all college expenses.” Finally, Tafaro contends that the judge erred in awarding attorney’s fees to Miller. We disagree.
From our careful review of the record, we hold that the judge properly applied the governing legal principles. Moreover, the findings by the judge are supported by the evidence presented in support and in opposition of the motion. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). It is settled that because of the Family Part’s expertise in family matters, we must defer to its findings of facts. Id. at 413. We do so here.
Newburgh v. Arrigo, 88 N.J. 529 (1982).
Comment: My 20 yr old son was attending the University of Central Florida part time, and has now moved back to New Jersey, resides by himself and seeking employment. He is not sure about what he wants to do for the future and this hiatus could be months. I have filed for emancipation. Do you think New Jersey will emancipate him?
Response: First, I hate to beat a dead horse, but without an attorney, your chances of success are always less. Of course, an attorney doesn’t mean you are assured anything as one side has to lose a contested case. Second, courts allow a brief hiatus during college. Thus, a lot will depend on the facts of the case and how it is argued. I’ve been down this road before and sometimes you win right away and sometimes it is a longer fight as the promise to go back to college can often be a lie.
If your child stopped attending college and you are still paying child support, call our team of tough, smart lawyers to discuss the NJ child support laws on emancipation. We’ll tell you when and how you can get your child emancipated.
This case seems pretty straightforward and I find it odd that it went to trial. You have to be careful what you agree to in a PSA with regard to child support and college expenses. NJ law makes it clear that child support and college expenses are separate yet related obligations. This case captures some of the NJ child support laws regarding a child in college and the importance of following the language in the PSA. Before you file a motion with the court, call our lawyers to discuss the NJ college expenses law and how it impacts your case.
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ROBIN HORNE, n.k.a.
BRETT D. HORNE,
Submitted February 25, 2009 – Decided
Before Judges Rodríguez, Payne and Waugh.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-387-04.
Law Offices of John H. Rittley, LLC, attorneys for appellant (Mr. Rittley, of counsel and on the brief).
Respondent has not filed a brief.
Defendant Brett D. Horne appeals from orders of the Family Part that require him to: (1) pay for college expenses for his daughter Amanda; (2) reimburse plaintiff Robin Manfredi (formerly Horne) for certain expenses in connection with the marital residence; and (3) pay Manfredi’s counsel fees. We affirm in part and remand in part.
The parties were divorced in 2004 after nineteen years of marriage. They have two children, Amanda and Nicole. Nicole was found to be emancipated in a November 2007 order and is not involved in this appeal. In an earlier appeal involving the parties, we determined that Amanda became emancipated when she became a part-time student and started full-time employment. Horne v. Horne, No. A-2043-07T2 (App. Div. Nov. 13, 2008).
As it relates to Amanda, this appeal concerns responsibility for payment for her first two years of college at Florida State University. The issue is governed by Paragraph 12 of the parties’ property settlement agreement (PSA), which provides as follows:
The parties agree that, if the children have the ability, and if they are financially able to pay for the children’s college education, which costs shall include tuition, room and board, books, and reasonable costs of transportation (4 round trips per year), the children shall either attend a state university or community college. The parties agree that the children shall apply and be responsible for all financial aid, loans, grants and scholarships available to them prior to either party contributing to their education. After all financial assistance is calculated, then the parties shall share that net amount due with the Husband being responsible for 60% and the Wife being responsible for 40%. Said college tuition shall not exceed the cost of two years of college at Rutgers the State University of New Jersey. The parties shall modify the then existing child support order when either child enters college. The Husband shall pay 60% costs for both children’s college tuition, costs, fees, room and board. At that time, the Husband shall pay $800 per month in child support for the remaining unemancipated child and contribute 60% of the costs for the other child’s college tuition, costs, fees, room and board during the (30) thirty weeks of the college year. The Wife shall contribute 40% of the college tuition, costs, fees, room and board for the child enrolled as a full time student. The parties agree that Husband shall pay the $1000.00 per month child support for the remaining 22 weeks of the year when the college classes are not in session. Said payments shall be made directly to the Wife. The parties agree to split the first two years of the college costs and tuition, including books, fees, room and board with Husband paying 60% and Wife paying 40%. Neither party shall have an obligation to contribute after the first two years of college for costs but the child support obligation shall continue until the child is emancipated as defined herein. This agreement is based upon the parties understanding of their respective earnings, Husband earning $95,000.00 and Wife earning $58,000.00. The Husband’s share shall not exceed the equivalent of 60% of the cost of Rutgers the State University of New Jersey and that the Husband shall only be required to contribute for two years of college education for each child.
Unlike the parties in Gac v. Gac, 186 N.J. 535 (2006), and Newburgh v. Arrigo, 88 N.J. 529 (1982), the parties now before us discussed and agreed in advance on their respective obligations in the event their children sought to attend college. In such cases, the obligation of the courts is to interpret and enforce the parties’ own agreement. Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995) (citing Petersen v. Petersen, 85 N.J. 638, 642 (1981)). We will not draft a new agreement for the parties. Ibid.; Rolnick v. Rolnick, 262 N.J. Super. 343, 352 (App. Div. 1993) (quoting Berkowitz v. Berkowitz, 55 N.J. 564, 569 (1970)).
Although Amanda and her father had discussed her attendance at college prior to the divorce, their relationship became strained thereafter. Consequently, he was not involved in her choice of Florida State. Nevertheless, Amanda asked Horne to attend her student orientation with her and he was initially willing to do so, but the plan fell through when Horne insisted on their being accompanied by his girlfriend.
It appears from the record that Amanda attended Florida State as a full-time student during the 2005-2006 and 2006-2007 academic years. She became a part-time student for the 2007-2008 academic year, during which she was also working full-time and attempting to establish Florida residency to lower her educational expenses.1
On May 24, 2006, Manfredi filed a motion in aid of litigants rights, R. 1:10-3, seeking to enforce Horne’s college-payment obligation under the PSA. A plenary hearing was held over several days during the second half of 2007. The trial judge determined that Horne was obligated to contribute to Amanda’s tuition and that he was able to do so during the relevant period, noting in particular a significant discrepancy between the income reported by Horne to taxing authorities and on his application to refinance the former marital residence.
Our scope of review of the trial judge’s factual findings is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1988); Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007). We are generally bound by the trial court’s findings of fact “when supported by adequate, substantial, credible evidence.” Cesare, supra, 154 N.J. at 411-12. This is especially so when questions of credibility are involved. Id. at 412. In addition, “[b]ecause of the family courts’ special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.” Id. at 413.
We are satisfied from our review of the record that the trial judge’s factual findings should not be disturbed with respect to the costs incurred by Amanda and Horne’s ability to pay. Questions of credibility were for the trial judge to determine. Id. at 412. The expenses were documented and supported by testimony the trial judge found to be credible. Manfredi testified that the expenses at Florida State, including living expenses, were slightly more than tuition at Rutgers without including living expenses. However, the PSA requires the parents to contribute to both tuition and room and board during the first two years of college. Consequently, Horne’s suggestion that the total cost at Florida State must be compared with tuition only at Rutgers is incorrect. Horne did not come forward with contrary evidence to support his claim that the applicable costs of attending Florida State exceeded those payable at Rutgers. Amanda did not become a part-time student until her third year, at which time she was emancipated pursuant to the PSA and, in any event, her parents obligation to pay two years of college expenses under the PSA had ended.
The loan at issue was taken out by Amanda and guaranteed by her maternal grandfather. It was not the type of subsidized student loan referred to in the PSA. The trial court was satisfied that Amanda applied for, but did not receive, financial aid.
With respect to Horne’s ability to pay, the trial court’s determination that Horne understated his income was supported by the record and the credibility findings. As noted, Horne made significantly different representations about his income and income-producing capacity depending upon the forum, court, or loan application, involved.
We also reject Horne’s contention that the trial judge unduly favored Manfredi because she was representing herself. We find no support for that assertion in the record. The sua sponte reopening of testimony by the trial judge to address Newburgh factors was well within his discretion. See Newburgh, supra, 88 N.J. at 545. It must be noted that the educational expenses sought were for the benefit of Amanda, not Manfredi.
Consequently, we affirm the trial court’s orders with respect to Horne’s obligations to pay for Amanda’s first two years of college, as he agreed to do in the PSA.
Horne also appeals from the award of counsel fees to the attorney who filed the motion on Manfredi’s behalf, although she was pro se at the time of the evidential hearings. In his written opinion of January 29, 2008, the trial judge stated:
I have found defendant in violation of litigant’s rights. I have granted most of the relief requested by the plaintiff. I find that there is bad faith on the part of the defendant in misstating his income. I, therefore, conclude that plaintiff is entitled to counsel fees for the motion that was filed on May 24, 2006.
“The award of counsel fees in matrimonial actions is discretionary with the trial court, R. 4:42-9(a)(1), and an exercise thereof will not be disturbed in the absence of a showing of abuse.” Berkowitz, supra, 55 N.J. at 570. See also R. 5:3-5(c). “We recognize the historical right of trial judges to exercise discretion to award counsel fees in certain matrimonial cases pursuant to Rule 4:42-9(a)(1), without always requiring a plenary hearing where there is a dispute.” Jacobitti v. Jacobitti, 263 N.J. Super. 608, 619 (App. Div.),aff’d, 135 N.J. 571 (1993).
Our review of the issue of counsel fees has been hampered by the fact that the underlying order of March 28, 2008, which set the amount of the fees, and any statement of reasons by the trial judge are not contained in the record. “[A] trial court must analyze the [relevant] factors in determining an award of reasonable counsel fees and then must state its reasons on the record for awarding a particular fee.” R.M. v. Supreme Court of New Jersey, 190 N.J. 1, 12 (2007).2
In any event, it appears from the pleadings contained in the record that Horne’s attorney did not timely receive the certification of services filed by Manfredi’s former counsel and that he did not know that an application had actually been made until shortly before he received the trial court’s March 28, 2008, order granting counsel fees. He raised the issue by motion, but the trial judge declined to address the issue because of the pending appeal. Consequently, we remand the issue for further consideration by the trial judge and do not retain jurisdiction.
After considering Horne’s remaining contentions in light of the record, his brief, and the applicable law, we conclude they are without sufficient merit to warrant discussion in a written opinion and affirm substantially for the reasons set forth in the trial judge’s comprehensive written opinion dated January 29, 2008, and his statement of reasons for denying the motion for reconsideration dated April 18, 2008. R. 2:11-3(e)(1)(E).
Affirmed in part and remanded in part.
April 3, 2009
This case is just another example of what could happen when you represent yourself. Besides not knowing what you are doing, the court could just run you over in its ruling. This could cost you a fortune. Thus, while it might be tough to afford an attorney, it will be much tougher to afford the high child support that you may have to pay as a result. Child Support Lawyers in NJ don’t have to cost a lot of money. Furthermore, payment plans can also be worked out with our firm. Let our NJ Child Support Lawyers help you. Call us today.
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-1147-07T21147-07T2
DARLENE LEWIS, f/k/a DARLENE
Argued January 5, 2009 – Decided
Before Judges Lisa and Sapp-Peterson.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FM-13-1690-98.
Amy Sara Cores argued the cause for appellant (Hoffman, Schreiber & Cores, attorneys; Ms. Cores, on the brief).
August J. Landi argued the cause for respondent.
Plaintiff appeals from the September 21, 2007 order of the Family Part judge ordering him to pay seventy percent of the “parties’ children’s college tuition, room and board [net] after loans, grants, the children’s money and other sources of financial aid . . . have been exhausted . . . .” The order requires the parties to share equally other college-related expenses. Because we conclude the court mistakenly exercised its discretion in permitting the matter to proceed to oral argument in defendant’s absence, we reverse and remand for reconsideration of all issues anew.
The parties divorced in December 1998. Four children were born of their union. At the time of the divorce, the children ranged in age from fourteen to seven. Incorporated into the judgment of divorce was a Property Settlement Agreement (PSA) that included a provision addressing the parties’ expectations related to their children’s higher education:
The parties recognize that they have an obligation to provide for the college education of their children, taking into consideration at the time each child attains the appropriate age, the respective income and assets of the parties and the child as well as the child’s abilities. The parties agree to consult with a view toward adopting a harmonious policy concerning the college education of each child. Accordingly, as each child is prepared to make application to colleges, both parents shall have the right to approve of the application process and participate in the selection of appropriate schools. It is understood that the children will use their own money and seek all loans, grants, and other sources of financial aid. Post high school education shall include the costs of tuition, room, board, books, school fees and reasonable transportation costs between home and school for school vacations. The parties agree to cooperate in completing any financial aid application.
When their oldest child, who was emancipated at the time the present matter was before the court, attended college, the parties reached an agreement about their respective contributions. Plaintiff agreed to be responsible for seventy percent of the costs, while defendant, Darlene Lewis, was responsible for the remaining thirty percent of those expenses. Their second child was accepted at the University of Scranton. The total estimated annual costs were $39,768. After deducting from that amount the financial aid awarded in the form of loans, grants, and scholarships, the anticipated yearly balance that remained was $17,768.
Defendant proposed to split the costs 70/30 once again. The parties were unable to reach an agreement. Consequently, defendant filed a pro se post-judgment motion seeking an order directing plaintiff to contribute seventy percent towards the college expenses of their second child after deducting financial aid from all sources. Defendant based her request upon what she characterized as the precedent established by plaintiff’s seventy percent contribution towards their oldest child’s college costs.
Plaintiff, also appearing pro se, opposed the motion. He submitted his tax returns for the previous four years to demonstrate that there had been a substantial decrease in his income over the four-year period. He argued that (1) contrary to the PSA, he was not consulted regarding the college application process or the selection of the University of Scranton; (2) defendant inaccurately stated that he earned “3.8 times what she does”; (3) defendant was receiving $38,000 in non-taxable child support, which he urged was the equivalent of $65,000 in taxable income; and (4) he was unable to pay seventy percent of the costs as requested. Plaintiff proposed that the expenses be split three ways between defendant, plaintiff, and their college-bound child, each being responsible for one-third of the costs.
On the return date of the motion, plaintiff did not appear. The court acknowledged his absence. The court also acknowledged that defendant had requested oral argument and proceeded to hear oral argument. At its conclusion, the court ordered that plaintiff be responsible for seventy percent of the costs not only for their second child, who was the subject of the motion, but for all of the unemancipated children unless there was a change.
On appeal, plaintiff contends the court improperly allocated the respective percentages each party is required to contribute towards college expenses, improperly failed to reduce the child support, which it should have done in consideration of those children attending college, and “misapplied” its discretion by permitting defendant to appear and argue the motion in plaintiff’s absence and without making sufficient findings of fact and conclusions of law.
Rule 5:5-4(a) governing motions in the Family Part provides that in exercising its discretion as to the mode and scheduling of disposition of motions, “the court shall ordinarily grant requests for oral argument on substantive . . . motions.” R. 5:5-4(a); see also Mackowski v. Mackowski, 317 N.J. Super. 8, 14 (App. Div. 1998) (citing Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997)). As interpreted, the rule contemplates oral argument “when significant substantive issues are raised and argument is requested.” Ibid.
Here, the return date of the motion was originally scheduled for August 17, but was adjourned at the request of plaintiff. The court rescheduled the matter for August 31. Plaintiff, as part of his opposition to defendant’s motion, submitted a certification dated August 22, in which he requested another adjournment:
I also need to inform his honor that I can not attend in person on August 31 to represent myself in oral argument. My coworker is on vacation next week and my presence at work is mandatory. My job is directly related to the existing credit crunch in the financing markets and I have to be at work. I humbly ask for an adjournment and full financial disclosure [to] settle this matter.
Although defendant did not specifically request oral argument, it is apparent by his adjournment request that he wanted to appear to “represent [himself] in oral argument.” There is no record indicating that the court responded to plaintiff’s second adjournment request. Rather, it appears that the court was unaware that the request had been made. Before defendant commenced her oral argument on August 31, the following exchange occurred between defendant and the court:
THE COURT: All right. I note Mr. Eastwood is not here. Ms. Lewis had requested oral argument, so I will proceed on her motion and also hear your response to his motion.
MS. LEWIS: Okay. I did not receive a motion from him.
THE COURT: Oh, wait a minute. Perhaps — just bear with me a second.
MS. LEWIS: Sure.
THE COURT: Oh, you are correct. It was just your motion. Okay. All right. I’ll hear from you.
MS. LEWIS: Okay. I don’t know why he’s not here. He did e-mail me actually saying that this was the date today that we were supposed to be here. It’s a very timely matter, as my son started school and the first payment was due August 22nd. I had had a court date for August 17th, which he called and said he couldn’t make, so you adjourned it for this date. Any he’s not here again. Tuition is now late. My son has started school. I’m kind of in a bind. So I’m happy that you’ve allowed me to present my oral argument today.
The court proceeded to consider defendant’s oral argument without placing on the record any reasons for exercising its discretion to proceed in plaintiff’s absence. Under these circumstances, we are constrained to vacate the order entered and remand for reconsideration of the matter to afford plaintiff an opportunity to appear for oral argument.
In view of our remand, we take the opportunity to comment upon plaintiff’s contention that the court reached its decision without considering defendant’s remarriage, without requiring defendant to submit a completed Case Information Statement (CIS), and without considering the fact that child support had not been adjusted to reflect that his second child was not living at home during the school year.
Plaintiff’s certification in opposition to defendant’s motion did not raise any of these issues. Nonetheless, in light of our remand and the passage of time, the court should direct the parties to submit updated CIS’s and, when considering the motion anew, articulate its consideration of the factors set forth in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982), where the Court established a twelve-factor balancing test to aid in determining whether and to what extent a court should require a parent to contribute to the cost of a child’s post-secondary education. See R. 1:7-4 (requiring by written or oral opinion, findings of fact and conclusions of law “on every motion decided by a written order that is appealable as of right”).
Reversed and remanded for further proceedings consistent with this opinion
Client came in my office today and I really felt bad for him. He has been handling his child support cases for years by himself with no success. He should have filed a motion to reduce his child support when his older child was away at college but did not to so. He also botched his motion to reduce his child support when he was unemployed. As a result, his arrears swelled to over $27,000.
He then filed a motion to emancipate his older child which was denied even though his ex-wife did not oppose it! He also failed to file a motion to reduce his child support with regard to his younger child being away at college.
While I can help him reduce most of his arrears, I can’t make all of it go away. If he would have worked with an attorney in the beginning, he would have likely never had an arrears problem. For only a few thousand dollars, he could have saved $30,000 or more.
Don’t let this happen to you, call the team of tough, smart Cumberland County Child Support Lawyers today to discuss your case.
If you needed another reason as to why you need, an attorney, here is a great one. This judge decided the case using the wrong legal standard! Unfortunately, stuff like this does happen. If you are facing an emancipation case in any court in New Jersey, call the team of tough, smart NJ Emancipation Lawyers today to discuss your case.
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-2427-07T3
HELENE L. RIGNEY,
February 27, 2009
Submitted January 21, 2009 – Decided
Before Judges Winkelstein and Gilroy.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2495-97.
Helene L. Rigney, appellant pro se.
Steven Brandes has not filed a brief.
Defendant Helene L. Rigney appeals from that part of the September 20, 2007 order of the Family Part, as amended by a second order of the same day and by an order of September 26, 2007, that declared the parties’ younger son emancipated. She also appeals from the orders of November 2, 2007, and December 21, 2007, denying her motions for reconsideration. We reverse and remand for further proceedings consistent with this opinion.
Following fifteen years of marriage, the parties were divorced on July 29, 1997. Three children were born of the marriage: Raymond, born December 1982; Eric, born July 1985; and Jessica, born June 1990. The judgment of divorce incorporated the parties’ July 9, 1997 property settlement agreement (PSA), and addressed issues of child custody and child support, including the parties’ obligations to contribute toward the children’s college expenses in proportion to the parties’ financial abilities.
Initially, the parties shared legal custody of the three children, with plaintiff designated as the custodial parent. In March 1998, an order was entered transferring physical custody of Raymond to defendant. In May 1998, a child support order was entered as to both parties. In September 2000, plaintiff consented to a transfer of physical custody of Eric and Jessica to defendant. On July 23, 2004, the court entered an order denying plaintiff’s motion seeking to have Raymond and Eric declared emancipated.1
In September 2007, plaintiff moved a second time to have the parties’ sons emancipated. At the time of oral argument on September 20, 2007, Raymond was age twenty-four, had recently graduated from law school, and had begun a judicial clerkship. Based on those findings, the court declared Raymond emancipated. Defendant does not challenge that determination.
Plaintiff sought to have Eric emancipated, alleging that he could no longer afford to pay Eric’s college expenses, his son having already attended four years of college. Defendant objected, contending that part of Eric’s difficulty in completing college was because of health issues. After referencing the factors in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982), the trial court declared Eric emancipated as of the day of oral argument. As to Eric’s college expenses, the court directed that Eric should obtain personal loans for college, and if he successfully completes his college education in the next three years, he could then move for reimbursement of his educational expenses from his parents. The court entered a confirming order on September 20, 2007. On that same day and on September 26, 2007, the court entered two amended orders increasing plaintiff’s child support obligation for the parties’ daughter.
At oral argument, defendant accepted the court’s reasoning that it would be better to compel Eric to pay for his own college expenses in hope that he will pursue his college education more diligently than he has in the past. However, defendant twice moved for reconsideration of the court’s order declaring Eric emancipated. Although the motions also sought other miscellaneous relief, the parts of both motions seeking reconsideration of the court’s determination of Eric’s emancipation were denied.
On appeal, defendant argues: 1) the record does not support the court’s finding that Eric was emancipated, not having left the sphere of parental influence; 2) the court erred in determining Eric emancipated based solely on his lack of commitment to his educational endeavors; 3) the court did not consider Eric’s medical condition in determining him emancipated; 4) the court improperly cited the Newburgh factors as a basis for emancipation; 5) the court improperly reversed the prior order denying emancipation without proof of a change of circumstances; and 6) the court did not conduct a plenary hearing.
Appellate review of a trial court’s fact-finding function is limited. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). The general rule is that a trial court’s findings are binding on appeal when supported by adequate, substantial, and credible evidence. Ibid. Such deference is especially owed to family court fact-findings “[b]ecause of the family courts’ special jurisdiction and expertise in family matters.” Id. at 413. An appellate court, however, does not owe any special deference to a trial court’s legal conclusions. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Generally, “emancipation is the act by which a parent relinquishes the right to custody and is relieved of the duty to support a child.” Newburgh, supra, 88 N.J. at 543. In New Jersey, there is no fixed age when emancipation occurs. Gac v. Gac, 186 N.J. 535, 542 (2006). While a rebuttable presumption against emancipation occurs prior to reaching the age of majority, N.J.S.A. 9:17B-3, attainment of age eighteen establishes prima facie, but not conclusive, proof of emancipation. Ibid. For example, emancipation may occur upon a child’s marriage, upon induction into military service, by court order based on a child’s best interest, or by attainment of an appropriate age. Newburgh, supra, 88 N.J. at 543. The issue is fact sensitive. Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997).
“[T]he essential inquiry is whether the child has moved ‘beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own.'” Ibid. (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)). This determination requires “a critical evaluation of the prevailing circumstances including the child’s need[s], interests, and independent resources, the family’s reasonable expectations, and the parties’ financial ability, among other things.” Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006). It is against these principles that we consider defendant’s arguments.
The trial court decided plaintiff’s emancipation motion on the arguments of the parties and their certifications filed with the court. Plaintiff certified in his August 7, 2007 certification that Eric turned eighteen on July 2, 2003; that during the prior four years, Eric had attended three colleges “on and off” without acquiring a two-year degree; Eric no longer resides with defendant, having moved out of defendant’s home to reside with other individuals in New Brunswick; and Eric was employed as a security guard more than twenty hours a week, earning money “to pay for his car, games and other personal interests.”
In her opposing certification defendant countered that, although Eric presently resides in New Brunswick, it “is primarily for the ease of the commute to DeVry [Technical Institute] in North Brunswick, and is not a permanent move.” Defendant asserted that Eric’s living in New Brunswick with other roommates is not an immediate emancipation event because “Eric plans to attend DeVry Technical Institute in September and will be living [in New Brunswick] during the school [t]erm. DeVry does not offer on[-]campus housing, and seeing that [I live] in Warren County, the commute time is extraordinary.”
As to Eric’s support, defendant certified that she presently pays for his car insurance and phone bill; and provides him money for food, clothing, and all other means of support. She denied that Eric has been going to college for four years “on and off,” but rather has continuously attended college during the four years without any gaps. Although defendant concedes that Eric transferred colleges during that time period, she stated that the primary reason he left the first college was because of the long commute to Newark where he was attending college after she moved to Phillipsburg. In addition, Eric suffered cardiac problems during the fall of 2005 and spring 2006, causing him to miss classes. Concerning Eric’s present intentions, defendant informed the court that he desires to continue his education and attend DeVry. Lastly, as to Eric’s employment as a security guard, defendant stated that “[t]his is certainly not a full[-]time job and is merely a part[-]time [j]ob for extra spending money while he is preparing to attend [s]chool [f]ull [t]ime in the fall.”
We agree with defendant that the trial court did not apply the proper legal standard in deciding the issue of Eric’s emancipation. The Newburgh factors that the court referenced concern a parent’s obligation to pay for a child’s college expenses. Here, the PSA addressed that issue. Thus, the issue before the court was whether Eric was emancipated. If found emancipated, then plaintiff’s obligation to pay child support for Eric and to contribute toward his college expenses would terminate. If not emancipated, then plaintiff’s obligation to contribute toward his support, including college expenses, as agreed upon in the PSA, would continue.
Here, the trial court did not determine whether Eric has reached such an independent status in his life as to be deemed emancipated. Bishop, supra, 287 N.J. Super. at 598. Because we are satisfied the trial judge did not properly decide the issue of emancipation under the correct legal principles, we reverse those parts of the three orders of September 20, 2007 and September 26, 2007, that determined Eric emancipated. We remand the matter to the trial court to reconsider that issue and, if necessary, to conduct a plenary hearing on the matter to resolve the issue of the conflicting certifications of the parties.
Defendant requests on remand that we direct that the matter be considered by a different judge. We decline the invitation. The assignment of the matter to a different trial judge for a “fresh look” is not warranted because the trial judge did not make findings concerning either party’s credibility. Brown v. Brown, 348 N.J. Super. 466, 493 (App. Div.), certif. denied, 174 N.J. 193 (2002); J.L. v. J.F., 317 N.J. Super. 418, 438 (App. Div.), certif. denied, 158 N.J. 685 (1999).
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
1 Although the order only denies plaintiff’s request to have Raymond emancipated, defendant states in her procedural history that, at that time, plaintiff sought the emancipation of Eric as well.