February 3, 2011
LUZ M. MARIN, PLAINTIFF-RESPONDENT,
RAFAEL H. RODRIGUEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1245-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 6, 2010
Before Judges Reisner and Alvarez.
Defendant Rafael H. Rodriguez appeals a November 10, 2009 order denying his motion for reconsideration of an earlier decision terminating plaintiff Luz M. Marin's child support obligation. The order also awarded plaintiff $2000 in counsel fees. For the reasons that follow, we affirm.
By way of background, the parties divorced on February 16, 2006, and signed a property settlement agreement (PSA) on the same date. They have one child, born February 12, 1989. The PSA designated plaintiff the parent of primary residential custody and defendant agreed to pay $121 per week in child support. Additionally, the parties agreed that, based on their financial circumstances, plaintiff would be responsible for thirty-eight percent of their daughter's college expenses, while defendant would be responsible for sixty-two percent.
On November 7, 2008, after defendant filed an application to modify child support based on changed circumstances, the Family Part terminated his child support obligation. At that juncture, the parties' daughter had moved to a home owned by defendant, although whether he lived there as well was disputed. Plaintiff was simultaneously ordered to pay defendant $127 weekly. The parties' daughter attends County College of Morris and works full-time.
The parties' financial circumstances were still at variance - although both earn relatively modest incomes from employment, defendant owns four houses, one of which is a three-family rental property, while plaintiff owns only her home, to which she added a rental unit.
On plaintiff's ensuing motion for reconsideration, child support was terminated and defendant was ordered to pay $2000 in counsel fees. In reaching his decision, the motion judge relied in part on defendant's failure to provide additional documentation of his claimed contributions towards the child's support. Likewise, plaintiff submitted a certification from the parties' daughter stating that, despite the fact she was attending school full-time, she had been promoted to manager at the restaurant where she worked and was earning $25,000 per year, not much less than her mother's salary. Furthermore, she stated that she did not need actual child support in light of her earnings and requested that her mother not be compelled to pay support because she could not afford it.
Defendant contended his daughter was coerced into signing the certification. He then filed a motion for reconsideration, which was denied on November 10, 2009. It is this order from which appeal is taken.
Defendant raises the following points on appeal:
THE COURT ERRED IN CONCLUDING SUA SPONTE THAT THE PARTIES' DAUGHTER WAS EMANCIPATED, BASED SOLELY ON DISPUTED FACTS CONTAINED IN CONFLICTING CERTIFICATIONS, AND WITHOUT CONDUCTING A PLENARY HEARING, THEREBY DEPRIVING DEFENDANT OF DUE PROCESS OF LAW POINT II THE AWARD OF $2,000 IN COUNSEL FEES TO PLAINTIFF IS AN ABUSE OF DISCRETION BECAUSE THE COURT DID NOT CONSIDER REQUIRED FACTORS AND APPLICABLE CASE LAW, BUT CONSIDERED INAPPROPRIATE AND IRRELEVANT FACTORS
As a threshold matter, we do not agree with defendant that the court emancipated the parties' child. The court's statement of reasons did not include that term. The parties were not relieved of their obligation to contribute to the child's expenses as she completes her college education. It is apparent the court assumed, as do we, that the parties will continue to make at will and voluntary intermittent contributions to their daughter's support, education, and incidental costs of living. However, on this record, defendant failed to document the support he allegedly provided to the daughter, and therefore failed to substantiate his claim that plaintiff should be required to send him child support payments for the daughter's benefit.
Although there is a presumption of emancipation upon a child reaching the age of majority, N.J.S.A. 9:17B-3, the issue is ultimately fact-sensitive. Bishop v. Bishop, 287 N.J. Super. 593, 597 (Ch. Div. 1995). Where a child continues in school, for example, attainment of the age of majority will not trigger emancipation. Newburgh v. Arrigo, 88 N.J. 529, 543-44 (1982). Nonetheless, it was appropriate for the court to terminate payment of court-ordered child support where the child earns significant wages, the parents provide her with financial aid as needed, and the adult-age child attests that she neither needs nor wants a formal support order.
In his first point, defendant also contends the motion judge erred because prior to terminating plaintiff's obligation to pay defendant child support, a plenary hearing should have been conducted. Again, we disagree.
A plenary hearing is required to resolve only material factual disputes. Colca v. Anson, 413 N.J. Super. 405, 422 (App. Div. 2010); Conforti v. Guliadis, 128 N.J. 318, 322 (1992); see also Barrie v. Barrie, 154 N.J. Super. 301, 303 (App. Div. 1977), certif. denied, 75 N.J. 601 (1978). But no such disputes are raised by the certifications supplied to the court.
Defendant was afforded an opportunity to provide additional documentation of the expenses he paid on behalf of the child, and failed to do so. Although he disputes his daughter earns as much as $25,000 per year, the question of how much she earns is not a material fact in dispute. The precise amount of the daughter's wages is not relevant if she is satisfied her present resources are sufficient to continue her education. She is to be commended because she attends school full-time while working full-time, and her parents should be proud of their daughter's achievements and independence. Given the child has certified that in the main she supports herself, no benefit would result from conducting a plenary hearing. Any factual disputes between the parties are peripheral to the central issue of whether weekly child support payments are necessary. The facts in dispute are simply not material. No plenary hearing is therefore necessary.
We next address defendant's challenge to the award of counsel fees. In making such decisions, a court considers the nine factors enumerated in Rule 5:3-5(c) in the exercise of its discretion. Guglielmo v. Guglielmo, 253 N.J. Super. 531, 544-45 (App. Div. 1992) (stating that "[u]nder the laws of New Jersey, the award of counsel fees and costs in a matrimonial action rests in the discretion of the trial court."). Of particular consequence are whether the party seeking payment is in financial need, the ability of the other party to pay, and if litigation was initiated in good-faith. Id. at 545. "[A] reviewing court will disturb a trial court's award of counsel fees 'only on the rarest of occasions, and then only because of a clear abuse of discretion.'" Litton Indus. v. IMO Indus., 200 N.J. 372, 386 (2009) (quoting Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001)).
In its September 23, 2009 order, the court stated as follows with respect to the nine factors:
Of particular significance in this case is
(3) reasonableness and good faith of the positions advanced and (7) results obtained. Plaintiff has prevailed as indicated above and defendant has failed to provide the specific information ordered by the [c]court.
As to the financial circumstances of the parties and the ability of the parties to pay their own fees, defendant has superior income than plaintiff as well as assets in the form of real estate. The [c]court is unaware of the fees paid by defendant and, therefore, that factor is not considered nor are fees previously awarded as that information is not available. The other factors are not relevant to this decision.
Although defendant describes the parties' financial circumstances as being in dispute, it is clear he is in a superior financial position to plaintiff. His position was neither reasonable nor advanced in good faith; the results reflect this conclusion. The standard of review is abuse of discretion, and we find none.
The findings of the Family Part are entitled to particular deference in view of the "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Nothing in this case requires us to disturb the factual findings and legal conclusions reached by the Family Part. They are based on adequate, competent evidence in the record. They reflect a correct application of the law to the circumstances of the parties.
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