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Jamison v. Orris


March 10, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1596-06D.

Per curiam.


Argued November 18, 2008

Before Judges Winkelstein, Fuentes and Gilroy.

Plaintiff Ann Jamison appeals and defendant Richard Orris cross-appeals from various parts of the orders of August 2, 2006; October 13, 2006; November 29, 2006; and December 19, 2006 that addressed issues of emancipation, child support, contribution toward their son's college costs and counsel fees. We affirm both the appeal and cross-appeal in part; reverse in part; and remand to the trial court for further proceedings consistent with this opinion.


Plaintiff and defendant were married on April 20, 1985. They had two children: John,*fn1 born in February 1988; and a daughter, born in March 1990. Plaintiff, who was diagnosed with rheumatoid arthritis as an adolescent, underwent several procedures before and during the marriage to correct extensive joint deterioration. In 1990, she began receiving Social Security disability (SSD) benefits.

On July 30, 1991, the parties separated. That year, plaintiff and the children moved to New Jersey, while defendant remained a resident of Pennsylvania. On February 19, 1992, defendant filed for divorce in Pennsylvania. The parties subsequently entered into an undated custody stipulation, and an amended stipulation dated December 2, 1992 (hereinafter, the custody agreement). On December 7, 1992, the Pennsylvania court entered an order directing the parties to comply with the custody agreement which, among other matters, gave both parties joint legal custody of the children, with plaintiff designated as the parent of primary residence. The parties also agreed that major decisions concerning their [children's] health, welfare, education, religious training and upbringing shall be made by the parents jointly, after discussion and consultation with each other, with a view towards obtaining and following a harmonious policy in the [c]hildren's best interests. Each party agrees to keep the other party informed of the progress of the [c]hildren's education and social adjustments.

On February 5, 1993, the parties entered into a consent child support order. In March 1993, Dr. Gabor Barabas, a pediatric neurologist, evaluated John who was having difficulties in nursery school. The doctor diagnosed him as having "Attention Deficit Disorder with Hyperactivity." Dr. Barabas also believed that he might have Asperger's Syndrome (Asperger's), which the doctor described as a form of pervasive developmental disorder. In July 1993, Dr. Isabelle Rapin, a professor of neurology and pediatrics at Albert Einstein College of Medicine of Yeshiva University in New York, confirmed the Asperger's diagnosis.

On May 3, 1995, plaintiff and defendant executed a post-nuptial agreement (PNA). That same day, a Pennsylvania court entered a final divorce decree incorporating the PNA by reference. As explained in the PNA, plaintiff conveyed to defendant title to the marital residence in return for a lump sum payment of $50,000. Plaintiff also received limited duration alimony in the amount of $192.30 per week, or $10,000 per year, for a term of six years. The parties agreed to continue the child support order and recognized that it was "modifiable pursuant to the case law and statutes of the Commonwealth of Pennsylvania."

The PNA expressly indicated the parties' desire for their children to attend college and obtain an undergraduate education. The parties agreed that, "in a manner commensurate with their financial circumstances at the time," each of them would be responsible "for those necessary payments of tuition, dormitory and/or room and board, books, supplies, fees, assessments, and other regular and normal college charges and expenses." They further agreed to urge their children to seek all possible financial aid available and "utilize in the calculation of each party's financial responsibility all scholarships, loans, grants, and the assets and earnings of the child attending college." Additionally, the PNA limited the college education to four years, to be completed within five years after each child graduated from high school. The PNA did not address emancipation of the children. However, the parties did agree that the PNA would be construed in accordance with Pennsylvania law.

After the parties' divorce, the Pennsylvania court periodically reviewed defendant's support obligations and made adjustments when necessary. For example, at the last support modification conference on March 22, 2001, the Pennsylvania court ordered defendant to pay $332 per week in child support and $192.30 in alimony,*fn2 and directed that child support increase to $378 per week effective May 5, 2001, to reflect the agreed upon termination of defendant's obligation to pay alimony.

In 2001, defendant moved to New Jersey where he resided with his new wife. At that time, he worked in the New York office of Morgan Stanley.*fn3 After defendant moved to New Jersey, the parties' daughter stayed with him during the summers when she attended camp. According to defendant, every summer except one, he paid the daughter's camp costs (ranging from $1,700 to $2,600 per summer) without a reduction in his child support payments.

Meanwhile, John continued to have problems in school with socialization. In May 1998, when he was in the fourth grade, the child study team of his public school district asked the Children's Center of Monmouth County (Children's Center) to make recommendations to enhance his social skills. Recognizing that children with Asperger's presented special challenges, the Children's Center made several suggestions. At some point, however, John was placed in Woodcliff Academy, an out-of-district private school that serves children with disabilities.

In November 2004, when John was in the eleventh grade, the Ocean Township child study team referred him to Dorothy M. Pietrucha, M.D., at Meridian Health, for a neurologic examination. In her report, Pietrucha advised that John was doing well at Woodcliff Academy, he had made a lot of progress over the years, and he had more socialization and interaction with his peers. She noted that John had previously taken Paxil and Risperdal, but did not respond well to those medications and was not on any medicine when she saw him. Pietrucha concluded that, because of his Asperger's, John remained eligible for special education and related services.

In the 2005 annual review of his individualized education program (IEP), John was deemed eligible for continued special education and related services. The IEP report described his academic progress as follows:

[John] continues to willingly participate in group counseling and insight continues to improve. He is in the higher functioning group currently. Change continues to be an issue. [John] continues to enjoy a social "niche" and interactions are appropriate. His work effort is good. He works at a slower pace and takes longer to complete tasks. [John] continues to work on organization and independent work skills.

The report observed that, although he socialized with his peers, he continued to have difficulty with "flexibility, transitions, and changes in routine." Nonetheless, it concluded that, if he was not graduating, he was "successful enough" that "Woodcliff would recommend returning [him] to district or another school." At the time, he was living with his mother and spending every other weekend with his father.

During his senior year, John applied to several colleges. According to defendant, he and plaintiff had agreed that their son would attend a community college. Defendant believed that community college was a better alternative because the classes were smaller and it would be "socially easier" than a "big school."

John, however, applied only to four-year colleges. He received acceptances to six schools, but decided to attend Fairleigh Dickinson University in Madison, where he was admitted into the Freshman Intensive Studies (FIS) program. Plaintiff explained that John did not apply to any community colleges because he could "do better."

Plaintiff and John chose Fairleigh Dickinson because the FIS program offered him "a lighter course load, a special dormitory with student monitoring and additional tutoring as needed." Fairleigh Dickinson described the FIS program as unique because of its four distinguishing features: tailored courses; a managed academic credit load; a range of academic support services; and the ability to graduate in four years. John's teachers, the members of his IEP team, and his school guidance counselor agreed that he could attend college provided he was able to go home for visits.

Defendant did not participate in John's college choice. Plaintiff claimed that defendant refused to discuss their son's attendance at a four-year college and, instead, wanted John to live with him, attend community college, and work in his wife's real estate business. Defendant countered that John never consulted with him before applying to four-year colleges and plaintiff never informed him in advance about his college applications. He first learned of John's acceptance to Fairleigh Dickinson on March 18, 2006, and did not receive the estimated costs of the four-year college until June 1, 2006, even though their son was admitted into the FIS program as early as February 2006.

John received a financial aid package from Fairleigh Dickinson, which amounted to an estimated $26,565.*fn4 The projected annual cost of tuition, room, board, and fees for the 2006/2007 school year was $35,973. After deducting the deposits made by plaintiff for tuition ($200) and housing ($350), there was an unpaid balance of $8,858.

According to plaintiff, her income level was so low that federal guidelines did not require her to pay any amount toward John's college education. As of July 2006, she had a total monthly income of $2,859 from all sources including SSD benefits and child support. However, her monthly expenses totaled $5,916. To help pay her expenses, plaintiff's parents and her sister and brother-in-law provided some financial assistance. For example, plaintiff's parents paid her counsel fees and the first two monthly payments to Fairleigh Dickinson.

Defendant expressed concerns about John's choice of college. In a certification dated July 13, 2006, he explained that, because an IEP safety net did not exist at Fairleigh Dickinson, if his son failed out of school, he could not "go for a program for the learning disabled." He further explained:

I do feel that if [John] goes to Fairleigh Dickinson, he could flunk out. Going away to college is difficult enough for children without learning disabilities. Once again, [John] is Autistic. He is not stupid by any means. He is probably in the top 5% or so of Autistic people with Asperger's who are fully capable of making it on their own, but I am very concerned about him, especially socially.

Defendant also questioned the plan for John to take three semesters to complete the first year's coursework and then "miraculously" become "a regular full[-]time student."

Instead, defendant suggested that John attend one of the community partner schools for Fairleigh Dickinson and live with him; and, in return, he offered to pay $7,000 toward John's college expenses, plus his car insurance up to a certain amount; gas money; health insurance; and a pro-rata share of his unreimbursed medical expenses, excluding the $250 per year deductible. Alternatively, defendant asked the court to hold a hearing to determine the best course of action.

Meanwhile, in December 2005, the Social Security Administration (SSA) denied plaintiff's application for supplemental security income (SSI) for John based on his living arrangements and his monthly income from Social Security benefits and child support payments. On February 3, 2006, the SSA advised plaintiff that John was no longer eligible for Social Security benefits because in that month, (1) he was eighteen-years old, (2) not disabled, and (3) not a full-time elementary or secondary level school student. On the same date, the SSA increased the parties' daughter's monthly benefits to $436.00.

Also in February 2006, plaintiff received a notice from the Pennsylvania court requesting information about her disability status and John's then-present condition. On March 13, 2006, the Pennsylvania court issued an order directing the parties to appear at a "modification conference." On March 20, 2006, plaintiff requested an adjournment, stating that she was in the process of obtaining legal representation "to domesticate th[e] matter in New Jersey where all parties reside." She also claimed that arthritis prevented her from driving long distances. When plaintiff asked defendant to consent to registering the foreign judgment of divorce in New Jersey, he refused. On March 24, 2006, the Pennsylvania court cancelled the conference, noting defendant failed to file a petition to modify his child support obligations.

On April 7, 2006, defendant filed a petition to modify the existing child support order in anticipation of John's emancipation upon graduation from high school. On April 12, 2006, the Pennsylvania court again ordered the parties to appear at a modification conference on May 3, 2006.

On April 25, 2006, plaintiff filed her complaint in the Family Part, seeking to register the foreign judgment of divorce in New Jersey, and requesting the court to direct defendant to pay child support for both children, college educational expenses for John, and counsel fees. Plaintiff advised the Pennsylvania court that she was filing the complaint and requested a stay of all proceedings in Pennsylvania pending the outcome of the New Jersey litigation.

The complaint specifically alleged that: (1) the Pennsylvania divorce decree, PNA and custody agreement should be registered in New Jersey and be given full faith and credit; (2) the Pennsylvania action should be dismissed, or alternatively stayed, pending a determination on the issue of registering the foreign judgment of divorce; (3) John was unemancipated under New Jersey law because he remained dependent on both parents for financial support; (4) defendant should pay child support in accordance with the laws of New Jersey; (5) defendant should be directed to pay his fair share of John's college educational expenses as determined by the PNA; (6) defendant should maintain medical insurance coverage for the children; and (7) defendant should pay plaintiff's counsel fees.

On May 3, 2006, the Pennsylvania court again issued an order directing the parties to appear at a support modification conference on June 12, 2006. On May 15, 2006, defendant filed a motion seeking to dismiss the Family Part complaint. He argued that the complaint lacked subject matter jurisdiction because of the pendency of the action in Pennsylvania or, alternatively, that the court should stay the action pending a decision from the Pennsylvania court. On May 25, 2006, plaintiff requested an adjournment of the June 2006 Pennsylvania modification conference not only to avoid potentially conflicting litigation in two states, but also to defray excessive legal expenses.

On June 1, 2006, the SSA denied plaintiff's claim on behalf of John for SSD benefits based on his Asperger's and Hypotonia.*fn5

While acknowledging that his condition affected his ability to perform some activities, the SSA believed that he "should be able to take care of [his] personal needs, do simple jobs when shown and understand and follow simple instructions." It also found that his Hypotonia did not limit his "ability to move about and use [his] limbs." According to its standards, the SSA concluded that he "should be able to perform jobs which do not require more than a short training period" and, therefore, he was not disabled.

On June 7, 2006, defendant made a settlement offer. According to plaintiff, the offer did not provide the necessary financial information for her to assess its reasonableness. That same day, plaintiff filed an order to show cause (OTSC) in the Family Part to prevent the Pennsylvania action from proceeding pending a decision by the New Jersey court on plaintiff's complaint and defendant's cross-motion to dismiss plaintiff's action. On June 9, 2006, a Family Part judge granted the order with temporary restraints, enjoining defendant from proceeding with his Pennsylvania action to emancipate John until after July 7, 2006. Also on June 9, the Pennsylvania court adjourned the June hearing. On June 27, 2006, defendant filed an answer to the complaint to register the Pennsylvania decree, and a counterclaim. On June 30, 2006, John graduated from Woodcliff Academy.

On July 13, 2006, plaintiff moved to enforce college contribution, to establish child support, and for other relief pursuant to Rule 1:10-3. Specifically, plaintiff requested the court to: direct defendant to pay the full cost of John's college education which was not covered by loans, scholarships, grants, and other financial aid; recalculate child support for their children in accordance with the New Jersey Child Support Guidelines*fn6 (Guidelines); register the Pennsylvania divorce decree, PNA, and custody order, and exercise exclusive jurisdiction over this matter; enjoin defendant from certain conduct during extended parenting time with their daughter; and direct defendant to pay her counsel fees.

In support of her motion, plaintiff attached her case information statement (CIS), filed on June 13, 2006. The CIS indicated that she had a gross earned income for 2005 of zero, and a total unearned income of $4,368. In 2005, she received a total of $10,057.40 in SSD benefits. At the time of filing, plaintiff received child support from defendant through wage garnishment in the amount of $819 per month each for their son and daughter. She received SSD benefits for John in the amount of $436 for the period from January 1 to February 28, 2006; and for their daughter, in the amount of $1,755 for the period from January 1 though May 31, 2006, which included $436 per month since March 1, 2006. She did not receive any alimony. Plaintiff's CIS reflected total assets of $319,191, with her residence comprising the largest portion at $291,700. She listed her net worth as $205,601.

On July 13, 2006, defendant filed a cross-motion requesting the Family Part to apply Pennsylvania substantive law to the interpretation and enforcement of the PNA, to require John to attend community college, to allow Pennsylvania to recalculate child support for their daughter retroactive to June 28, 2006, and to compel plaintiff to contribute toward his counsel fees. According to defendant, both parties had voluntarily submitted themselves to Pennsylvania law after they relocated to New Jersey because the Pennsylvania court was "abundantly familiar" with their case, and the PNA referred to Pennsylvania law. In defendant's July 2006 certification, he stated that if the Pennsylvania court deemed John emancipated and recalculated child support for their daughter only, he would agree to transfer all further issues to New Jersey jurisdiction.

In his CIS dated June 28, 2006, defendant indicated that he had a gross earned income for 2005 of $119,523, and total gross assets of $1,186,864. Defendant's largest asset was his residence, which he valued at $600,000. He placed his net worth at $868,837.

On July 28, 2006, the parties appeared before a second Family Part judge for argument on the motions. The judge granted the registration of the Pennsylvania divorce decree, the PNA, and the custody order in New Jersey, determining that New Jersey would exercise exclusive jurisdiction. He also directed the parties to pay for John's college expenses commensurate with their financial circumstances, which he allocated at 88% for defendant and 12% for plaintiff. In so deciding, the judge noted that the parties acknowledged in the PNA their desire for the children to attend college and obtain an undergraduate education, commensurate with their financial circumstances. He further found that it was in their son's best interest to attend Fairleigh Dickinson. Noting that the laws in New Jersey and Pennsylvania differed with respect to emancipation, the judge reserved decision on that issue pending further review. He then directed defendant to update his CIS and other financial information so that he could evaluate defendant's child support obligation as it related to the emancipation issue.

On August 2, 2006, the judge issued an order memorializing his decision on the cross-motions. This order also applied Pennsylvania law and determined John emancipated as of February 4, 2006, the date of his eighteenth birthday. In addition, the order enjoined defendant from making any further applications in Pennsylvania and ordered him to pay an additional $200 per month in child support from September 1, 2006, to August 31, 2007, based on the expectation that John would frequently return home the first year of college due to his special needs. Lastly, the order denied defendant's application to find plaintiff in contempt for failing to consult with him in advance about John's college choice, and to require John to attend community college.

With regard to the daughter, the order directed the recalculation of defendant's child support obligation, effective July 13, 2006, in accordance with the Guidelines, because the parties resided in this State and were subject to the New Jersey cost of living. It directed both parties to exchange financial information and update their CISs, so that counsel could submit an amended consent order to the court for enforcement. Additionally, the order denied plaintiff's applications which sought to direct defendant to disclose all real estate ventures and to require defendant to account for all monies earned by their daughter throughout her summer employment. Lastly, the order directed defendant to pay plaintiff's counsel fees in the amount of $5,000.

On August 21, 2006, defendant filed a motion seeking to amend the prior order pursuant to Rule 4:49-2 and Rule 4:50-1, and for reconsideration of the August 2006 order pursuant to Rule 1:7-4. Among other matters, defendant sought credit for any overpayments of child support after the date on which the court declared John emancipated, and a recalculation of Pennsylvania child support payments retroactive to February 4, 2006, for their daughter only. He also requested the court to reconsider its decision to obligate him to pay plaintiff's counsel fees.

On September 13, 2006, plaintiff cross-moved, requesting the court to find defendant in contempt for continuing litigation in Pennsylvania and for failing to pay her counsel fees. On September 18, 2006, defendant paid the counsel fees. On September 20, 2006, defendant wrote to the Pennsylvania court requesting that it defer further action until the New Jersey court decided his motion for reconsideration.

On October 2, 2006, plaintiff filed another OTSC relating to her ongoing allegations that defendant was proceeding in Pennsylvania in violation of the August 2006 order. Plaintiff filed the OTSC because defendant had obtained an adjournment of the New Jersey hearing on her enforcement motion and plaintiff required relief before October 6, 2006, when she was scheduled to appear in Pennsylvania court or risk arrest. On October 3, 2006, the Family Part granted the OTSC with temporary restraints. It enjoined defendant from proceeding with any litigation filed in Pennsylvania arising from the parties' divorce decree. It also ordered defendant to appear at a hearing on October 13, 2006, to determine if he should be held in contempt.

On October 5, 2006, plaintiff filed a motion requesting that the Family Part deny defendant's application for reconsideration, apply New Jersey law to support obligations for John, deem John unemancipated, and direct defendant to pay 100% of John's college expenses. Plaintiff also asked the court to direct defendant to provide unredacted 2005 tax returns and enforce all restraints against defendant for alleged misconduct toward their daughter. On October 12, 2006, defendant advised the Pennsylvania court that he was withdrawing the petition he filed on April 7, 2006, to modify the existing child support order.

On October 13, 2006, a third Family Part judge heard argument on plaintiff's motion to enforce, and on defendant's motion for reconsideration.*fn7 The court denied the motion for reconsideration, stating that it could not determine whether the second judge's decision fell within the narrow standard for reconsideration of D'Atria v. D'Atria, 242 N.J. Super. 392 (Ch. Div. 1990). The court also declared John emancipated as of June 22, 2006, and ordered that child support be recalculated for their daughter as of that date. Lastly, the court directed New Jersey's Probation Department to credit defendant with any overpayments.

In the conforming order of October 13, 2006, the court denied plaintiff's motion to deem John unemancipated in accordance with New Jersey law and to hold defendant responsible for all of John's college expenses. The court ordered defendant to produce his unredacted 2005 tax returns for an in camera review to determine whether the redacted portions contained information solely pertinent to defendant's wife, and to determine the actual amount of defendant's income before calculating his child support obligation under the Guidelines. The court also enforced all restraints against defendant as to his daughter, and granted those portions of plaintiff's OTSC filed on October 2, 2006, that had not already been determined.

On November 29, 2006, the court entered another order in response to defendant's motion for an amendment and reconsideration of the August 2, 2006 order. The order amended certain paragraphs of the August 2006 order, including defendant's college contribution obligation, defendant's credits for any overpayment of child support, and recalculation of defendant's child support obligation for their daughter. Additionally, the order amended John's emancipation date to June 30, 2006, and directed that the $200 support payments be deposited in a separate account in John's behalf with plaintiff designated as custodian. Finally, on December 19, 2006, the court entered an order in response to plaintiff's motion to enforce the August 2006 order. The court held defendant in contempt for his willful disregard of the August 2006 order barring him from proceeding with litigation of the matrimonial matter in Pennsylvania. It also directed defendant to pay an additional $2,000 in counsel fees.


We first address the issue of whether John should have been declared emancipated. Plaintiff argues that the trial court erred by declaring John emancipated when he graduated from high school in accordance with Pennsylvania law. She argues that Pennsylvania law does not apply because the PNA did not address the issue of emancipation, John was a resident of New Jersey for fifteen years, and John and his sister received government assistance in New Jersey. Plaintiff contends that New Jersey, as the forum state, has exclusive jurisdiction over the issue of John's emancipation for purposes of child support pursuant to the Uniform Interstate Family Support Act (UIFSA), N.J.S.A. 2A:4-30.65 to -30.123. Alternatively, plaintiff asserts that if Pennsylvania law applies, defendant has a duty to support John because the Asperger's prevents him from being self-supporting.

Defendant counters that Pennsylvania law controls the issue of emancipation because the initial child support order and divorce judgment were entered in Pennsylvania; the parties agreed in the PNA to be bound by Pennsylvania law; and, under the UIFSA, a New Jersey court cannot extend the duration of child support beyond the time that Pennsylvania law allows.

In its August 2006 order, the court applied Pennsylvania law in deciding the issue of emancipation. It explained:

[T]he State of New Jersey shall use Pennsylvania law to interpret the parties' decree in divorce, custody order and post[-] nuptial agreement, pursuant to section L of the parties' post[-]nuptial agreement which states "this Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania," particularly with respect to the issue of emancipation.

The court deemed John emancipated as of February 4, 2006, the date of his eighteenth birthday. On October 13, 2006, the court denied plaintiff's motion for reconsideration. However, on November 29, 2006, the court amended the August 2006 order, declaring John emancipated as of June 30, 2006.

Because the trial court decided this case as a matter of law without a plenary hearing, appellate review is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); Marshak v. Weser, 390 N.J. Super. 387, 390 (App. Div. 2007). Thus, the trial court's legal conclusions "are not entitled to any special deference." Manalapan Realty, supra, 140 N.J. at 378.

"UIFSA is a model act adopted by the National Conference of Commissioners on Uniform State Laws at the behest of Congress in 1992 and revised in 1996." Marshak, supra, 390 N.J. Super. at 390. In 1998, New Jersey adopted UIFSA; Pennsylvania adopted it as well. Id. at 391. Under N.J.S.A. 2A:4-30.71:

a. A tribunal of this State may exercise jurisdiction to establish a support order if the complaint, petition or comparable pleading is filed after a complaint or comparable pleading is filed in another state only if:

(1) the complaint, petition or comparable pleading in this State is filed before the expiration of the time allowed in the other state for filing a responsive pleading challenging the exercise of jurisdiction by the other state;

(2) the contesting party timely challenges the exercise of jurisdiction in the other state; and

(3) if relevant, this State is the home state of the child.

A similar provision is contained in 23 Pa. Cons. Stat. § 7205(a) (2008).

Importantly, both New Jersey and Pennsylvania adopted the model provision which provides in relevant part: "A tribunal of this State may not modify any aspect of a child support order that may not be modified under the law of the issuing state." N.J.S.A. 2A:4-30.114(c); 23 Pa. Cons. Stat. § 7611(c) (2008). New Jersey's statute also provides that "[t]he law of the issuing state governs the nature, extent, amount, and duration of current payments and other obligations of support and the payment of arrearages under the order." N.J.S.A. 2A:4-30.107a.

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 v. Arrigo, 88 N.J. 529, 543 (1982).

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, 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).

Because "the privilege of parenthood carries with it the duty to assure a necessary education for children[,]" courts in New Jersey have recognized that, in appropriate circumstances, the child support obligation includes a duty to contribute to the cost of a child's college education. Newburgh, supra, 88 N.J. at 543. "[N]ecessary education" is "a flexible concept that can vary in different circumstances." Ibid. Generally, courts require financially capable parents to contribute to the higher education of children who are qualified students. Id. at 544; Monmouth County Div. of Social Servs. v. C.R., 316 N.J. Super. 600, 616 (Ch. Div. 1998) (recognizing the well-established "educational exception" to emancipation); N.J.S.A. 2A:34-23a(5) (listing the "[n]eed and capacity of the child for education, including higher education" as a factor to consider in determining the amount to be paid by a parent for support of a child and the period during which a duty of support is owed). Thus, in New Jersey, parents may decide how to divide college expenses of a "resident child" but cannot bargain away the child's rights by eliminating their obligations to pay. Blum v. Ader, 279 N.J. Super. 1, 4 (App. Div. 1994).

In contrast, Pennsylvania law does not require a parent to pay college expenses for a child who has either reached the age of eighteen or finished high school, whichever occurs later. Marshak, supra, 390 N.J. Super. at 391 (citing Sheetz v. Sheetz, 840 A.2d 1000, 1002 (Pa. Super. Ct. 2003)); Blue v. Blue, 616 A.2d 628, 633 (Pa. 1992) (declining to require a parent to make college contribution because no such legal duty had been imposed by the General Assembly or developed by case law).*fn8 Courts in Pennsylvania, however, have long recognized an exception to this general rule, and the exception is supported by statute. Geiger v. Rouse, 715 A.2d 454, 458 (Pa. Super. Ct. 1998), appeal denied, No. 634 M.D. Alloc. Dkt. 1998 (Pa. March 3, 1999). Under 23 Pa. Cons. Stat. § 4321(3) (2008), "[p]arents may be liable for the support of their children who are 18 years of age or older."

When a child has a mental or physical condition at the time of reaching majority, which prevents the child from being self-supporting, the parental obligation continues under 23 Pa. Cons. Stat. § 4321(3). Heitzman-Nolte v. Nolte, 837 A.2d 1182, 1185 (Pa. Super. Ct. 2003) (ordering the defendant-father to continue child support for the parties' son who attended college but whose blindness prevented him from being self-supporting), appeal denied, 853 A.2d 362 (Pa. 2004); Geiger, supra, 715 A.2d at 458 (holding the parents had a continuing duty to pay medical bills of their daughter who, although she attended college and was over the age of eighteen, remained "'totally dependent upon her parents' as a result of her 'moderately severe cerebral palsy,' was 'severely depressed,' and had no means of employment"); Hanson v. Hanson, 625 A.2d 1212, 1214 (Pa. Super. Ct. 1993) (holding the father had a continuing duty to support his adult child who was employable but incapable of self-support due to her mental and physical conditions); Commonwealth ex rel. Cann v. Cann, 418 A.2d 403, 406 (Pa. Super. Ct. 1980) (holding the lower court did not abuse its discretion by continuing a support order against the father where the child was unable to earn a supporting wage because of her limited mental capacity). "To determine if an order of support is appropriate, the test is whether the child is physically and mentally able to engage in profitable employment and whether employment is available to that child at a supporting wage." Hanson, supra, 625 A.2d at 1214.

Here, the parties agreed that their PNA would be construed in accordance with Pennsylvania law. Where a contract expresses a clear intent to have a particular jurisdiction's law govern, New Jersey courts will generally uphold the parties' choice of law unless it violates this State's public policy. Haynoski v. Haynoski, 264 N.J. Super. 408, 413 (App. Div. 1993); Kalman Floor Co. v. Jos. L. Muscarelle, Inc., 196 N.J. Super. 16, 21 (App. Div. 1984), aff'd, 98 N.J. 266 (1985). In negotiated agreements between spouses, however, New Jersey courts have declined to adopt a per se rule of enforceability, especially when the agreements relate to children who reside in this State. Black v. Walker, 295 N.J. Super. 244, 253 (App. Div. 1996); Massar v. Massar, 279 N.J. Super. 89, 94 (App. Div. 1995). Thus, contract principles do not necessarily control issues in New Jersey's "matrimonial or parent-child relations." Black, supra, 295 N.J. Super. at 253.

Moreover, to the extent that contract principles are consulted for guidance, courts have rejected the traditional contract choice-of-law rule that the place of contracting automatically and conclusively determines the parties' rights and duties. Id. at 253-54. Instead, New Jersey focuses "on the jurisdiction which has the most significant relevant contacts with the parties and the subject matter of the agreement." Id. at 254. Accordingly, New Jersey courts have applied the forum's laws "'unless the dominant and significant relationship of another state to the parties and the underlying issue dictates that this basic rule should yield[.]'" Ibid. (quoting Gilbert Spruance Co. v. Pa. Mfrs. Ass'n Ins. Co., 134 N.J. 96, 102 (1993)); see also Blum, supra, 279 N.J. Super. at 3-5 (reversing and remanding the trial court's decision to apply Delaware law to hold that the father was not responsible for college expenses of a child who was a New Jersey resident).

Plaintiff initially approaches the issue of John's emancipation by applying a choice-of-law analysis. Because the PNA was silent on the issue, she argues that New Jersey law governs because it has the most significant relationship to the parties. She relies primarily on the reasoning of Black, supra, 295 N.J. Super. at 249, a factually distinguishable case where the parties executed three "support and maintenance" agreements, none of which mentioned anything about an obligation to pay college expenses.

However, the Supreme Court has declined to adopt the conflict-of-laws approach. Philipp v. Stahl, 344 N.J. Super. 262, 275 (App. Div. 2001), rev'd on dissent, 172 N.J. 293 (2002). In Philipp, the parties were divorced in Georgia, the wife and children then moved to New Jersey, and the son eventually returned to Georgia to live with his father. Id. at 266, 268. New Jersey subsequently entered three orders affecting child support payments. Id. at 267-68. The wife eventually filed an application in New Jersey for an order requiring defendant to contribute to their daughter's college expenses. Id. at 263. Such relief was unavailable under Georgia law, which terminates child support payments when a child becomes emancipated. Id. at 268. The trial court held that the UIFSA gave Georgia "exclusive jurisdiction" because it had issued the original support order, and that New Jersey had no jurisdiction to modify the father's obligations. Id. at 263. Citing subsections of the UIFSA set forth in N.J.S.A. 2A:4-30.72, and over the objections detailed in Judge Wecker's dissenting opinion, the Appellate Division reversed and remanded, concluding Georgia lost "continuing, exclusive jurisdiction" because New Jersey had issued several post-divorce support orders, and the wife and daughter lived in the State. Id. at 263-66.

The Supreme Court reversed, "substantially for the reasons expressed in Judge Wecker's dissenting opinion[.]" Philipp, supra, 172 N.J. at 293. Judge Wecker concluded that New Jersey lacked subject matter jurisdiction under N.J.S.A. 2A:4-30.72a to require the defendant to make college payments, and that the record was insufficient to determine if it had personal jurisdiction over him for purposes of modifying child support. Philipp, supra, 344 N.J. Super. at 274. The judge "considered and rejected the possibility that a conflict of laws regarding a parent's obligation to contribute to a child's college expenses should affect our determination respecting subject matter jurisdiction." Id. at 275. She found that a Georgia court issued the original order, the father still resided in Georgia, and the parties did not file written consents for a New Jersey court to assume jurisdiction. Id. at 278. She further found that three New Jersey orders enforced, rather than modified, the original Georgia support order. Id. at 280.

In dicta, Judge Wecker indicated that if New Jersey did have subject matter jurisdiction, she would remand for development of a record sufficient to make a determination with respect to in personam jurisdiction. Id. at 274. "If both New Jersey and Georgia could be found to have continuing exclusive jurisdiction over child support modification, Georgia would be the proper jurisdiction with respect to any new determination of child support for [the parties' son], since Georgia is now his home state." Ibid. If New Jersey had subject matter and personal jurisdiction, Judge Wecker agreed with the majority opinion that the court would require a plenary hearing with respect to the plaintiff's application for college expenses. Id. at 275.

The Appellate Division revisited the issue of UIFSA and its relationship to New Jersey law in another case addressing whether New Jersey courts could modify a Pennsylvania child support order to require payment of college expenses for an emancipated child. Marshak, supra, 390 N.J. Super. at 388-89. In Marshak, the parties were divorced in Pennsylvania and the original child support order was entered there. Id. at 389. Unlike the parties in Philipp, supra, both parties and their children later moved to New Jersey, where they signed a consent order which recalculated child support for the youngest child in anticipation of the Pennsylvania court issuing an order emancipating the older child who had turned eighteen. Ibid.

When the younger child also turned eighteen and graduated from high school, the defendant filed a motion in New Jersey to have him declared emancipated. Ibid. The plaintiff filed a cross-motion "seeking to 'unemancipate' the older child and to require [the] defendant to contribute to both children's college expenses pursuant to New Jersey law." Ibid. The trial court concluded that the Court's decision in Philipp, supra, indicated that it would apply New Jersey law provided both parties currently lived in the State. Id. at 390. It also reasoned that the New Jersey Legislature had not adopted a 2001 amendment to UIFSA providing that a court may not extend the duration of a child support obligation imposed by the court of another state. Ibid. Thus, the trial court ordered the defendant to pay his younger son's college expenses without holding a plenary hearing or reviewing the twelve factors in Newburgh, supra, 88 N.J. at 545. Ibid.

On appeal, we reversed. Id. at 394. Citing UIFSA provisions N.J.S.A. 2A:4-30.107a and 2A:4-30.114c, we concluded that a New Jersey court could not modify a Pennsylvania child support order to provide a longer duration than Pennsylvania law would allow. Id. at 391. In construing UIFSA, we considered the 2001 amendment to the model UIFSA, noting "'the legislative policy and intent of the new statute may inform interpretation and application of the existing version of the statute.'" Id. at 392 (quoting Poluhovich v. Pellerano, 373 N.J. Super. 319, 354 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005)). We also considered the comment to the amendment. Ibid.; see e.g., Town Tobacconist v. Kimmelman, 94 N.J. 85, 106-07 (1983) (upholding constitutionality of a drug paraphernalia law by relying, in part, on the model act and comments). The model amendment provided:

'In a proceeding to modify a child-support order, the law of the State that is determined to have issued the initial controlling order governs the duration of the obligation of support. The obligor's fulfillment of the duty of support established by that order precludes imposition of a further obligation of support by a tribunal of this State.' [Id. at 392 (quoting Unif. Interstate Family Support Act § 611(d) (2001)).]

The comment specifically indicated that "the amendment was intended to address modifications to impose college tuition payments for adult offspring where the law of the issuing state would not provide for such support." Ibid.

With regard to Judge Wecker's dicta, the Marshak court concluded that the dissent expressed her agreement with the majority's view that a New Jersey court would need to hold a hearing pursuant to Newburgh, supra, only if it had jurisdiction to decide the issue of college expenses. Id. at 394. Moreover, it found that the Court's reversal "substantially" for the reasons stated in Judge Wecker's dissent did "not necessarily place the Court's imprimatur upon dicta in the opinion." Ibid. (citing State v. Hempele, 120 N.J. 182, 221 (1990) (stating "mere dicta [is] not binding")).

Here, unlike Philipp, New Jersey has continuing, exclusive jurisdiction over child support because both parties and their children reside in New Jersey. Thus, plaintiff has the right under UIFSA to modify the initial child support order provided the modification would be permitted under Pennsylvania law.

Although the Pennsylvania general rule relieves parents of the duty to support children who have reached age eighteen or graduated from high school, we conclude that a Pennsylvania court would find John was not emancipated because, at the time he reached the age of majority, Asperger's prevented him from being self-supporting. Hanson, supra, 625 A.2d at 1214. Despite defendant's arguments to the contrary, the facts established that John, like the plaintiff with "unquestioned intelligence" in Heitzman-Nolte, had reached adulthood "without assimilating all of the essential skills necessary for independence." Heitzman-Nolte, supra, 837 A.2d at 1185. Additionally, our Supreme Court "has recognized that persons suffering from Asperger's Disorder have an incapacity for socialization that can be both 'serious and debilitating.'" State v. Burr, 195 N.J. 119, 129 n.6 (2008) (quoting T.H. v. Div. of Developmental Disabilities, 189 N.J. 478, 486 (2007)).

Indeed, defendant admitted that: John suffered from a form of autism; John had social problems; he was concerned about John's ability to make it on his own; and he believed John could fail out of Fairleigh Dickinson because "[g]oing away to college is difficult enough for children without learning disabilities." Accordingly, we conclude that the trial court erred in declaring John emancipated because while John may acquire the necessary social skills over time, he presently needs parental support. Because we determined that John should not have been declared emancipated under Pennsylvania law, we need not address plaintiff's other arguments concerning the issue of emancipation. Moreover, requiring defendant to contribute toward John's college expenses is consistent with the parties' prior agreement. Under Pennsylvania law a party may contractually assume a duty to support his or her child's post-secondary education. Reif v. Reif, 626 A.2d 169, 173 (Pa. Super. Ct. 1993). Where such an agreement is incorporated, but not merged with the divorce decree, it must be viewed as a "separate and independent contract." Wineburgh v. Wineburgh, 816 A.2d 1105, 1108 (Pa. Super. Ct. 2002), appeal denied, 828 A.2d 351 (Pa. 2003).

Here, the parties stipulated in their initial custody agreement that major decisions concerning such matters as education would be made "after discussion and consultation with each other, with a view towards obtaining and following a harmonious policy in the Children's best interests." However, they did not incorporate the custody agreement into the PNA executed three years later.

In the PNA, which was incorporated by reference into the divorce decree, the parties agreed in Paragraph VI that each "shall" be responsible for post-majority support, including necessary college expenses. Accordingly, defendant had a contractual duty to pay his commensurate share of the children's college expenses. That John did not consult with defendant prior to selecting a college does not relieve defendant of his obligation. See Wineburgh, supra, 816 A.2d at 1109 (finding a post-separation agreement, giving the father a "say" in the choice of college, did not impose an obligation on the mother or son to "consult" with the father about college plans); Fina v. Fina, 737 A.2d 760, 767 (Pa. Super. Ct. 1999) (refusing a defendant's claim for reimbursement of college expenses, notwithstanding that his child violated the separation agreement's requirement that she consult with the defendant-father about her choice of college).

Accordingly, we affirm the trial court's decision to apply Pennsylvania law to the issue of emancipation, but reverse its decision to declare John emancipated. Under UIFSA, the Pennsylvania support order should be modified to extend defendant's support obligation for John, including contributing toward his college expenses. This result is consistent with the parties' written agreement.


We next address the issue of allocation of John's college expenses. Plaintiff argues that the court erred in directing her to pay 12% of the expenses. She contends that the court misapplied the factors in Newburgh, supra, 88 N.J. at 545, placing an "oppressive obligation" on her, which she cannot meet. Specifically, she asserts that her only source of income is her SSD benefits and her sole asset is her home, which has a mortgage. She further argues that defendant should pay all of John's college expenses because: he "earns well over $100,000[] per year as a vice-president working for Morgan Stanley"; his second wife owns her own real estate company; he and his second wife have no children; he has the ability to acquire more assets in the future; and, if necessary, he can borrow against his house, retirement, or investment accounts. Lastly, plaintiff claims that, while she receives some financial assistance from her family, the court's decision in effect erroneously transferred defendant's support obligation onto her parents who were "approaching eighty."

At the hearing in July 2006, the second trial judge found that it was in John's best interest to attend Fairleigh Dickinson. In his view, John had "risen above going to a community college," and qualified for Fairleigh Dickinson which offered a special course "created almost for him." The judge noted that defendant made enough money to pay John's college expenses, and that plaintiff should also contribute because she wanted their son to attend college and had "upped the ante from Brookdale [Community College] to . . . Fairleigh Dickinson." While acknowledging that both parties had "problems," he noted that John did not seek or obtain the divorce and that the parties should have been saving for college. The judge explained:

This is one of the major problems I have here. [Defendant] is lucky he is not paying $42,000 a year, which is the average that I have been seeing lately for a substantial four-year college. That's what we're talking about. What did he think it was to be, $5,000 a year for college? Like I get parents in here who say, when I went to college, -- I don't care when you went to college. He pays. He makes over $100,000 a year. It's difficult. He brought the child into the world and the child has a lot of problems. The child has done a lot better than anticipated. So he pays.

Under the law of the State of New Jersey he pays and we're in New Jersey now.

Based on his review of the "Guidelines," "income statements," and "all the papers," the trial judge indicated that he was going to order defendant to pay 88% and plaintiff 12% of John's college expenses. The judge, however, directed defendant to file an updated CIS, "together with his most recent tax returns, W-2's, 1099's, three most recent pay stubs[,]" stating he would use that information in calculating child support obligations. He denied a plenary hearing, finding there was no meaningful disagreement on the college choice because of the PNA.

The judge memorialized his oral decision in the August 2006 order. He specified that college expenses should be apportioned "after application of all available scholarships, loans, grant[s], assets and earnings of the child." He also ordered defendant to pay directly to plaintiff an additional $200 per month from September 1, 2006, to August 31, 2007, "towards [John's] first year college expenses, as it is expected that he will find it necessary to return home often during his first year of college, due to his special needs."

In October 2006, the third trial judge denied plaintiff's motion to reconsider the August decision and hold defendant responsible for all of John's college expenses. However, in November 2006, the judge amended the August 2006 order by directing defendant to deposit the $200 monthly payments into a separate account in John's behalf with plaintiff acting as custodian.

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. Also, we generally grant deference to the trial court's credibility determinations. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). Such deference is especially owed to family court fact-findings "[b]ecause of the family courts' special jurisdiction and expertise in family matters." Cesare, supra, 154 N.J. at 413. An appellate court, however, does not owe any special deference to a trial court's legal conclusions. Manalapan Realty, supra, 140 N.J. at 378.

We reverse the trial court's apportionment of the college expenses because its rulings in August, October and November 2006 did not comply with the requirements of Rule 1:7-4(a). Under that rule, "[t]he court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right[.]" R. 1:7-4(a).

While the judges each held hearings in this matter, their oral opinions and written orders with respect to the allocation of college expenses did not include the required findings. Because the judges failed to adequately explain their reasons for ordering defendant to pay 88% and plaintiff 12% of John's college costs, or for ordering defendant to pay additional monthly payments of $200, we are not able to perform a meaningful review and are left to conjecture as to what they had in mind. See Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990) ("Meaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion.").

The Court in Newburgh, supra, 88 N.J. at 545, set forth twelve factors a court should consider in evaluating a claim for college contribution. They are:

(1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; (2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education; (3) the amount of the contribution sought by the child for the cost of higher education; (4) the ability of the parent to pay that cost; (5) the relationship of the requested contribution to the kind of school or course of study sought by the child; (6) the financial resources of both parents; (7) the commitment to and aptitude of the child for the requested education; (8) the financial resources of the child, including assets owned individually or held in custodianship or trust; (9) the ability of the child to earn income during the school year or on vacation; (10) the availability of financial aid in the form of college grants and loans; (11) the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and (12) the relationship of the education requested to any prior training and to the overall long-range goals of the child. [Ibid.]

The Legislature essentially approved these factors when, six years after Newburgh, it amended the support statute, N.J.S.A. 2A:34-23a.*fn9 Gac, supra, 186 N.J. at 543. A trial court, therefore, "should balance the statutory criteria of N.J.S.A. 2A:34-23a and the Newburgh factors, as well as any other relevant circumstances, to reach a fair and just decision whether and, if so, in what amount, a parent or parents must contribute to a child's educational expenses." Ibid.

During the first hearing, both parties requested the court to consider the Newburgh factors with regard to the issue of college expenses. Defendant argued that he did not have the ability to pay the percentage proposed by the court because he had another child "coming in the ranks." The court rejected this argument, noting college was not a surprise and defendant should have been saving his money. At the second hearing, defendant advised the court that he agreed to pay the 88%. On appeal, defendant confirms "there was a rational basis to [the second judge's] 88/12 ratio."

Plaintiff, however, argued in the Family Part, and continues to argue on appeal, that she should not have to pay any of their son's college expenses because her weekly income was only $204 while defendant's weekly income was $2,585. Specifically, she asserts that the court did not properly assess her ability to pay 12% (Newburgh factor four) or the financial resources of both parents (Newburgh factor six). We agree.

When announcing his decision to allocate college expenses, the second judge stated: "Well, I have worked it out, quite frankly, at 88 percent, we'll cut to the chase, 88 percent the husband to pay and 12 percent the wife." Although he did not explain how he arrived at these percentages, he indicated that he "ran [the] Guidelines and income statements and did what we could and in the order you'll see it." He later stated that the court would determine each party's ability to contribute towards John's college expenses.

The court, however, apparently decided the issue based solely on the parties' income, rather than their financial resources and abilities to pay. For example, the parties' CISs showed that, in 2005, plaintiff and defendant had total gross earned incomes of $10,057.40 and $119,523, respectively. Put differently, in the year preceding the hearing, plaintiff earned approximately 12% of the parties' combined gross earned income.

The second judge acknowledged that plaintiff was living on Social Security, and agreed with plaintiff's representation that it was a form of state assistance. He also agreed with plaintiff that defendant should have been more forthcoming and that he had the income to "pick up the tab." He nonetheless dismissed plaintiff's arguments, stating everyone has "tough decisions to make in life" and plaintiff made the decision to send [John] to Fairleigh Dickinson, rather than to a less expensive community college.

We conclude the second judge did not examine the individual ability of each parent to pay for college costs as required by the PNA. Under their agreement, each party was obligated to pay for their children's college expenses "in a manner commensurate with their financial circumstances at the time." The consideration of the parties' financial circumstances requires an analysis of the Newburgh factors. Income alone is not dispositive.

Because the record provides no insight into the trial court's reason for its apportionment of the parties' college contributions, other than its consistency with the percentage of their combined incomes, a remand is necessary. In addition to rendering specific findings as to each party's ability to pay and financial resources, the court on remand shall consider the other Newburgh factors. If the court determines, on remand, that any fact is in dispute, it may require further information either by written submissions or a plenary hearing, or both. Id. at 585.

With regard to the $200 support payments, the second judge said only that he expected John would "find it necessary to return home often during his first year of college, due to his special needs." Again, there is no indication that the judge considered the statutory criteria in N.J.S.A. 2A:34-23a, or made any findings of fact or conclusions of law. Thus, on remand, the trial court is directed to place its findings on the record on this issue.

Lastly, plaintiff contends the court erred by requiring her elderly parents to pay for John's college expenses. She argues that the court relied on her parents' income in assessing her contribution. Her sole support in the record is the following colloquy which took place during the first hearing:

Court: 88/12, come on. [Plaintiff's I understand that, Your counsel] Honor, but listen. I don't --Court: Her parents can continue. 12 percent, you want the boy to go to college. You've upped the ante from Brookdale to the school, to Fairleigh Dickinson. [(emphasis added).]

While the second judge acknowledged that plaintiff's family gave her financial assistance, the record is devoid of evidence establishing that such family support formed the basis for his decision. Instead, the judge apparently decided plaintiff had a responsibility to pay a portion of John's college expenses because she made the decision to send him to Fairleigh Dickinson.

Defendant counters that he requested the court to consider "regular and recurring" income that plaintiff receives from her family as income for the purpose of determining her ability to contribute towards John's unreimbursed college expenses. He believes that one or more of plaintiff's family members gave her regular and recurring gifts of $3,057 per month.*fn10 Defendant argues that if the court had considered this financial assistance as "gift income," it would have directed plaintiff to pay 40% and defendant 60% of John's college expenses.*fn11

We disagree with defendant's argument. There is no credible evidence in the record to support defendant's claim that his former wife received $3,057 per month from one or more members of her family. In fact, while he argues this on appeal, he took a more skeptical position in his reply certification of July 24, 2006, where he stated:

Plaintiff readily admits to over-spending by $3,057.00 per month. We have been separated/divorced for over fifteen (15) years or 180 months. If you multiply $3,057.00 by 180 months, you have a shortfall of $550,260.00! Plaintiff states that she makes up this short-fall by getting money from family members and that "her parents help sustain her". How many parents and family members can afford this sort of subsidy? Something is not right in the state of plaintiff's finances[.]

Plaintiff admits only that she received funds as requested from her parents, and that her sister and brother-in-law gave her what they could afford.

Second, we find no legal precedent suggesting that, under these facts, a court is required to consider financial gifts from a grandparent as income for purposes of apportioning college expenses. Defendant asserts that regular and recurring income should be included in a party's gross income for the purpose of determining his or her child support obligation, citing Pressler, Current N.J. Court Rules, Appendix IX-B, Use of the Child Support Guidelines, Lines 1 through 5 - Determining Income, Definition of Gross Income to Guidelines. We find defendant's argument unpersuasive. The contributions or gifts received by plaintiff from family members are by the very nature, voluntary and unpredictable, and as such, cannot fall under the umbrella of "regular and recurring" income. Because we are satisfied that the record is devoid of evidence establishing that the monetary gifts received by plaintiff qualify as regular or recurring income, we find that the trial court properly excluded such income when apportioning college expenses.

Accordingly, we reverse and remand for further proceedings on the issue of the parties' commensurate shares of John's college expenses.


We next address the issue of counsel fees. Plaintiff argues that the court erred by awarding her less than half of the legal fees she incurred. First, she contends the court erred by awarding her $5,000 in counsel fees through the date of oral argument on July 28, 2006, when she actually incurred fees of $13,000. Plaintiff asserts that defendant was solely responsible for the protracted litigation of "what should have been an uncontested registration proceeding" and "an easily resolved issue regarding college contribution." She further claims that he acted in bad faith by pursuing litigation in Pennsylvania and by refusing to pay all of John's college expenses. Second, plaintiff argues the court erred by awarding her only $2,000 in counsel fees for filing a motion to enforce and an OTSC, when she incurred more than twice that amount because of defendant's bad faith in continuing to pursue the Pennsylvania litigation despite repeated court orders.

Defendant counters that the court properly awarded plaintiff less than half of her counsel fees. However, on cross-appeal, he argues that the court erred by awarding these fees without issuing proper findings of fact and conclusions of law, and by finding the request to reconsider the $5,000 award moot because it was already paid.

At the July 2006 hearing, the second trial judge reserved decision on the issue of counsel fees, stating he would review plaintiff's request and that some fees would be granted. The judge, however, denied defendant's request for counsel fees given plaintiff's "worse financial position," and the fact that the judgment should have been registered in New Jersey long ago and without difficulty. In his August 2006 order, the judge directed defendant to pay plaintiff's counsel fees in the amount of $5,000. On September 15, 2006, defendant paid the $5,000.

At the October 2006 hearing, in response to plaintiff's motion to enforce the August 2006 order, the third judge denied defendant's motion to reconsider the second judge's decision directing him to pay $5,000 in counsel fees. The judge found the motion was moot because defendant had paid the award prior to the October 2006 hearing date.

Also at the October 2006 hearing, plaintiff sought additional counsel fees relating to the filing of a motion to enforce the restraint against litigation in Pennsylvania and an OTSC. Plaintiff filed the enforcement motion to enjoin and restrain defendant from proceeding with the Pennsylvania litigation. She subsequently filed the OTSC because the enforcement motion was not scheduled to be heard until after the date she was scheduled to appear in the Pennsylvania court.

The judge granted all relief requested in the OTSC. He noted the order was necessitated because plaintiff discovered that defendant had actually proceeded with the Pennsylvania litigation. The judge explained:

But as to the issue of counsel fees, obviously the wife's attorney had to undertake representation of her in this order to show cause, which I believe she had to do because of the bad faith. Certainly there is a need on her part for counsel fees. There is an ability to pay. There is a disparity in the income of the parties.

The judge requested the parties to submit updated certifications, stating that he would apportion the fees. However, in his October 2006 order, the judge denied not only defendant's motion for reconsideration, including his request for counsel fees, but also plaintiff's request for fees incurred "for the filing of the within application."

The next month, the judge issued another order denying as moot defendant's application to reconsider the second judge's decision requiring him to pay the initial $5,000 counsel fee award. In his December 2006 order, the judge awarded plaintiff an additional $2,000 in counsel fees and costs. He also granted plaintiff's request to reduce these fees to judgment, with post-judgment interest, in the event defendant failed to pay them.

An award of counsel fees in matrimonial matters rests in the discretion of the trial court. R. 4:42-9(a)(1); R. 5:3-5(c); Williams v. Williams, 59 N.J. 229, 233 (1971); Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004). An exercise of discretion will not be disturbed in the absence of a showing of abuse. Chestone v. Chestone, 322 N.J. Super. 250, 258 (App. Div. 1999).

When reviewing an application for counsel fees, a court must "consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party." N.J.S.A. 2A:34-23. In a family action, Rule 4:42-9(a)(1) authorizes the award of counsel fees and refers to Rule 5:3-5(c), which provides that a court should consider the following factors:

(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.

[R. 5:3-5(c).]

For a court to award counsel fees based on a party's bad faith, there must be evidence of something more than a showing of an unreasonable, mistaken or frivolous position. Kelly v. Kelly, 262 N.J. Super. 303, 308 (Ch. Div. 1992). There must be evidence that a party had malicious motives, was unfair, desired to destroy the opposing party, or used the court system improperly to force a concession which was not otherwise available. Ibid. "'[W]here one party acts in bad faith, the relative economic position of the parties has little relevance' because the purpose of the award is to protect the innocent party from unnecessary costs and to punish the guilty party." Yueh v. Yueh, 329 N.J. Super. 447, 461 (App. Div. 2000) (quoting Kelly, supra, 262 N.J. Super. at 307).

Plaintiff first asks us to review the court's decision limiting her counsel fee award to $5,000 through the date of the first hearing. Plaintiff's CIS indicated that she had a limited income and depended on SSD benefits, whereas defendant's CIS showed he was in a much better financial position and earned more income than plaintiff received. Defendant's CIS and supporting documents confirmed his financial position and the extent to which he had the ability to pay counsel fees.

Additionally, the record supports the finding that defendant acted in bad faith by making the registration process more lengthy and difficult than necessary. Specifically, he refused to consent to plaintiff's initial request to register the divorce judgment in New Jersey and, instead, pursued litigation in both states despite court orders enjoining him from doing so. Thus, there was a legitimate basis for an award of counsel fees.

Neither judge, however, explained on the record how he arrived at the amount awarded. While plaintiff claims on appeal that she incurred more than $13,000 in fees through oral argument held on July 28, 2006, her attorney's certification of services of July 13, 2006, states that plaintiff incurred legal expenses of $9,015. The court directed defendant to pay $5,000. Absent any explanation in the record for the amount of the award and, given plaintiff's financial situation, we are not able to determine if the award was reasonable or "so wide of the mark" as to constitute an abuse of discretion. Chestone, supra, 322 N.J. Super. at 258. That is, we cannot determine if the award was correct, or too low as argued by plaintiff on appeal, or too high as argued by defendant on cross-appeal.

We agree with defendant that the trial court erred in determining that his challenge to the August 2006 order directing him to pay the $5,000 counsel fee award was moot. The August 2006 order, until modified by the trial court or reversed on appeal, is a valid order. Failing to comply with the terms of an order compelling payment subjects a defendant to a motion for enforcement under Rule 1:10-3. Thus, a defendant may pay the award and challenge the award on appeal. Accordingly, we remand this issue for further proceedings because the $5,000 award was entered without the benefit of any analysis or explanation.

Plaintiff also objects to the court's second award of only $2,000 in counsel fees for filing an enforcement motion on September 13, 2006, and an OTSC on October 2, 2006. She argues that defendant acted in bad faith by disregarding four prior orders by three different judges restraining him from making any further applications in this matter in Pennsylvania. The court issued these orders on June 9, 2006; August 2, 2006; October 3, 2006; and on October 13, 2006. Notably, plaintiff does not state in her appellate brief the amount of counsel fees and costs she claims is due; rather, she asks us to consider the certification of services in the record and to make an appropriate award of counsel fees. Because we are remanding this matter on other issues, we decline the invitation.

On November 16, 2006, plaintiff's attorney submitted a certification seeking additional counsel fees in the amount of $4,820 for work performed between August 7, 2006 and November 15, 2006. This certification evidently replaced an earlier certification dated October 5, 2006, in which plaintiff's attorney sought reimbursement of $5,472.50 for services provided from September 6, 2006 through October 5, 2006. The November 16 certification was accompanied by a detailed fee application that deleted all entries for services rendered on matters other than the enforcement motion and the OTSC.

Again, the court did not award plaintiff the full amount which she requested for counsel fees even though she incurred the additional legal fees as a result of defendant's refusal to comply with court orders restraining him from pursuing litigation in Pennsylvania. Like the second judge, the third judge apparently relied solely on plaintiff's attorney-fee petition without any analysis or explanation. Accordingly, we remand this issue concerning the amount of the second counsel fee award for the trial court to reconsider plaintiff's application in accordance with this opinion.


We next address plaintiff's remaining arguments. First, plaintiff argues that the court erred by refusing to permit discovery into the extent of defendant's real estate income for the purpose of determining his child support obligation. Plaintiff asserts she made a prima facie showing of changed circumstances due to John's entry into college, and that she has a right to view defendant's "complete financial information." She argues discovery of defendant's real estate income is necessary because: (1) defendant may have an interest, legal or equitable, in his wife's real estate business based on his history of dabbling in real estate; and (2) defendant might be using real estate ventures to reduce his income in contemplation of John's upcoming college expenses.

At the July hearing, the second trial judge denied the discovery motion, stating he did not "see the point," and calling it a "fishing expedition." On reconsideration, the third judge in his October 2006 order also denied plaintiff's request to require defendant to "make a full and accurate disclosure of all real estate ventures in which he has participated, principally or collaterally, directly or indirectly, held in the name of defendant, the defendant's wife or an entity under whose title the defendant has conducted business, in the past five (5) years." However, beyond denying relief, the judge did not place his reasons on the record.

A trial court has substantial discretion to make a child support award. Foust v. Glaser, 340 N.J. Super. 312, 315 (App. Div. 2001). If the award is consistent with the law, it will not be disturbed unless it is unreasonable, arbitrary, or contrary to the evidence. Id. at 315-16. The findings of the trial court are binding on appeal when supported by adequate, substantial, and credible evidence. Cesare, supra, 154 N.J. at 411-12. Moreover, an appellate court deems "the quantum of discovery on modification applications to be governed by proper application of discretion by the motion judge." Isaacson v. Isaacson, 348 N.J. Super. 560, 586 (App. Div.), certif. denied, 174 N.J. 364 (2002).

However, child support orders are "always subject to review and modification on a showing of 'changed circumstances.'" Lepis v. Lepis, 83 N.J. 139, 146 (1980) (quoting Chalmers v. Chalmers, 65 N.J. 186, 192 (1974)). Such orders "may be revised and altered by the court from time to time as circumstances may require." N.J.S.A. 2A:34-23. The party seeking a modification has the burden of making a prima facie showing of changed circumstances, which requires "a demonstration that the child's needs have increased to an extent for which the original arrangement does not provide." Lepis, supra, 83 N.J. at 157.

After the moving party has made a prima facie showing, a court has the right to order full discovery regarding the other spouse's financial circumstances. Ibid.; Isaacson, supra, 348 N.J. Super. at 579. "[W]ithout access to such reliable indicia of the supporting spouse's financial ability, the movant may be unable to prove that modification is warranted." Lepis, supra, 83 N.J. at 157-58. Because the responding spouse's ability to pay becomes a factor for the court to consider, discovery of tax returns and other financial information should be ordered. Id. at 157. However, a court is only required to hold a hearing if material facts are in dispute. Id. at 159. To determine whether a material fact is in dispute, a court should rely on supporting documents and affidavits, and disregard conclusory allegations. Ibid.

Plaintiff cites Beck v. Beck, 239 N.J. Super. 183 (App. Div. 1990), arguing that further discovery was necessary in light of John's entry into college. In Beck, we found that, "since entry of the 1985 order, amended in 1986 to reflect the college-tuition obligation for the older daughter, plaintiff's income had declined significantly, his expenses for educating the two children had increased significantly, and defendant's independent income had also increased significantly." Id. at 189-90. We determined that the trial court did not properly consider the issue with respect to the younger daughter's college education, stating: "The question was not one of her emancipation but rather whether the substantial tuition obligation plaintiff undertook should have resulted in a deduction of unallocated alimony as had been ordered by the court when the older daughter started college." Id. at 190. Thus, we concluded that the alleged change in the plaintiff's circumstances from the time the motion for relief was made to the last order fixing support obligations was sufficient to warrant a Lepis hearing. Id. at 190-91.

Plaintiff asserts that John's admission to Fairleigh Dickinson represents a changed circumstance since the last support order was issued by a Pennsylvania court in 2001, and that payment of 12% of his college expenses will substantially impair her ability to support the children. We agree that those factors may establish a prima facie showing of changed circumstances. Although we do not express a position on the outcome of a renewed application for discovery, we are satisfied that, under Beck, plaintiff is entitled to pursue her request for discovery of defendant's real estate income on remand. On deciding plaintiff's renewed application for discovery, the trial court shall fully explain its reasons in granting or denying the request. Accordingly, we reverse those parts of the August and October 2006 orders that denied plaintiff's request for discovery into defendant's real estate ventures.

Second, plaintiff contends that the third trial judge erred by dismissing as untimely her cross-motion for reconsideration of the August 2006 order. On plaintiff's October 5, 2006 cross-motion for reconsideration, she requested the court to: 1) reconsider applying Pennsylvania law to support obligations for John; 2) declare the child unemancipated; 3) order defendant responsible for all of John's college expenses; 4) establish child support for John upon review of defendant's complete financial information; and 5) direct defendant to pay the $5,000 counsel fee award. Because of our rulings on the issues discussed supra, we determine plaintiff's argument that the trial judge improperly dismissed her reconsideration motion is moot.

Third, for the first time on appeal, plaintiff contends the trial court erred by misapplying the Guidelines and ordering defendant to pay no more than 7% of his income in child support.

She argues: (1) the court denied her due process by failing to provide her with a copy of defendant's unredacted tax returns; (2) the court failed to consider defendant's 2006 year-to-date income when establishing his child support obligations; (3) the court failed to consider the impact of using her SSD benefits to reduce defendant's child support obligation from $1,638 to $706.33 per month; and (4) the court failed to consider the totality of the parties' financial circumstances when calculating child support. Because these arguments were not raised in the trial court and do not go to the jurisdiction of the court or concern matters of substantial public interest, we decline to consider them. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Nevertheless, we add the following comment.

Plaintiff's arguments primarily concern the trial court's order setting defendant's support obligation for their daughter at $163 per week, effective June 30, 2006, the date the court declared John emancipated. Because we have determined that John is unemancipated and have remanded the matter to the trial court for further proceedings on other matters, plaintiff may raise these child support issues in the trial court on remand.


We now address defendant's cross-appeal. In Points I, II, III, V, VI, VII, VIII and XII, defendant raises issues challenging the trial court's orders pertaining to apportionment of John's college expenses; the amount of his support obligation for his daughter; the plaintiff's and John's failure to consult with him prior to John enrolling in Fairleigh Dickinson University; and the counsel fee awards. These issues have been fully addressed supra.

Defendant also argues that the court erred: 1) by not holding plaintiff in contempt for failing to consult with him prior to enrolling John in college; 2) by entering and continuing restraints against him vis-à-vis their daughter and denying his request to make such restraints mutual against plaintiff; 3) by granting portions of the relief requested in plaintiff's OTSC of October 2006, determining that he violated prior orders of court by continuing litigation in Pennsylvania; 4) by entering the December 19, 2006 order because it was "duplicitous" of the October 2006 order in almost every respect except counsel fees; and 5) by deciding contested matters of fact without conducting a plenary hearing. We have considered each of these five additional arguments in light of the record and applicable law. We conclude that the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).


In summary, on plaintiff's appeal we reverse those portions of the orders of August 2, 2006; October 13, 2006; November 29, 2006; and December 19, 2006, that: 1) determined John emancipated; 2) allocated John's college expenses at 88% for defendant and 12% for plaintiff; 3) directed defendant to pay an additional $200 a month in child support from September 1, 2006 through August 31, 2007; 4) directed defendant to pay counsel fee awards in the amounts of $5,000 and $2000; and 5) fixed defendant's child support obligation for the parties' daughter at $162 as of June 30, 2006. The issues reversed are remanded to the trial court.

On remand, the trial court is to reconsider the issues of allocation of John's college expenses; defendant's child support obligations for both children; and counsel fees, with the trial court fully explaining on the record its findings of fact and conclusions of law supporting its decision on each issue. On defendant's cross-appeal, we reverse those provisions of the same four orders on the issues of allocation of college expenses, defendant's child support obligations for both children; and the two counsel fee awards. All other provisions of the four orders, not addressed in our opinion, are affirmed.

We affirm both the appeal and the cross-appeal in part; reverse in part; and remand to the trial court for further proceedings consistent with this opinion.

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