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Mary L. Diemer v. Roy R. Diemer


June 9, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-161-98.

Per curiam.


Argued March 8, 2011

Before Judges Carchman, Graves and Waugh.

This appeal represents our second review of an on-going matrimonial dispute between plaintiff Mary Diemer and defendant Roy R. Diemer. In our earlier opinion, Diemer v. Diemer, No. A- 2875-02 (App. Div. March 5, 2004) (Diemer I), we reversed the trial court's denial of alimony to plaintiff and remanded for further consideration of that issue. We also reversed and remanded the portions of the order addressing child support for the parties' son Matt, and ordering the immediate sale of the marital home.

After extensive motion practice and hearings before various judges on these issues, plaintiff again appeals from both a May 22, 2008 amended dual judgment of divorce and two orders, dated July 9, 2004 and April 9, 2009, all issued following our remand. Specifically, she claims that the trial courts erred by: (1) denying her motion for alimony; (2) failing to require the payment of child support, and by ordering that any support should be paid directly to Matt rather than to plaintiff; (3) refusing to order defendant to contribute to the college and unreimbursed medical expenses incurred by the parties' daughter, Jessica; (4) denying her request for one-half of the value of timeshares that the couple purchased during the marriage; and (5) ordering that the marital residence be sold immediately. Finally, she urges that we assert original jurisdiction and decide the alimony issue.

We decline to exercise original jurisdiction; however, we agree that the trial judge erred as to alimony and child support. Accordingly, we reverse and remand as to those two issues. As to the remaining issues, we affirm.



We briefly set forth the procedural history of this matter following our decision in Diemer I.

After our remand, plaintiff moved for relief pending the remand hearing. Specifically, she sought $250 per week in temporary alimony, temporary child support for Matt and support for Jessica's college and other expenses. She also sought an order preventing defendant from selling the marital home and requiring him to pay all maintenance fees and late charge payments for the timeshares the couple had purchased during the marriage.

On July 9, 2004, the motion judge*fn1 entered an order denying the relief plaintiff sought, and requiring the immediate sale of the timeshares. The judge noted that the issues of alimony and child support for Matt would be addressed at the remand hearing, and that the issue of defendant's contribution towards Jessica's college expenses would require a subsequent hearing.

Remand hearings took place before a second judge in August 2007, and an amended dual judgment of divorce was issued on March 22, 2008. Specifically, the marital home was to be sold within thirty days and defendant's alimony obligation was terminated as of April 20, 2008. Further, "child support" payments previously made to plaintiff were terminated immediately, but defendant was ordered to pay $150 per week in support directly to Matt.

Plaintiff filed a notice of appeal from that order on July 7, 2008; however, plaintiff's counsel realized that the remand court had failed to address all of the remanded issues and sought a limited remand, which we granted.

A limited remand hearing took place on several dates in February and March 2009. On April 9, 2009, the third judge hearing the matter entered an order in which he declined to award child support for Jessica because she was "emancipated upon her graduation from school." Similarly, the judge denied plaintiff's request for reimbursement of Jessica's college and unreimbursed medical expenses. Finally, the judge denied plaintiff's request for damages related to the loss of the timeshares to foreclosure.

Plaintiff thereafter filed an amended notice of appeal, in which she appealed from the July 9, 2004, May 22, 2008 and April 9, 2009, orders and judgments.


In Diemer I, we set forth the factual background related to the marriage and this dispute. We incorporate those facts by reference and do not repeat them here. See Diemer I, supra, No. A-2875-02 (slip op. at 2-14).

To better understand the nature of the remand hearing, we briefly set forth the basis for our decision in Diemer I. In Diemer I, we agreed with plaintiff that the trial court erred in denying her permanent or rehabilitative alimony. We noted that the trial court had relied on plaintiff having already obtained her Bachelor's degree, and imputed $26,000 to $30,000 in full-time wages to her on that basis. Moreover, the trial court concluded that plaintiff could have earned a starting salary of $40,000 per year once she obtained her Master's degree.

The trial court found that while defendant had "considerable seniority and job security" in his position at USPS, he had "no apparent chance of significant further advancement or promotion." His income ranged from $56,000 in 1998 to $59,000 in 2001, reflecting his "present income ability."

The trial court further concluded that through the support he paid, defendant had assisted plaintiff, during the pendency of the divorce, in obtaining her college degree. According to the judge, plaintiff had "in effect received rehabilitative alimony during the pendency of the divorce by reason of defendant being the major financial support of the family while plaintiff has pursued further education towards her chosen new career goal."

The trial court found that plaintiff could have earned $15,000 to $20,000 per year during the last five years given her education at Berkley and prior work experience, rather than the $5,500 she actually earned in 2001. In short, the trial court found that plaintiff received "pendente lite rehabilitative alimony" during the pendency of divorce, in that defendant supported the entire family on his income until plaintiff began working in 1995.

Moreover, the court found that plaintiff's income would approach, and could eventually exceed, defendant's, and that plaintiff had received approximately $100,000 in an inheritance. The trial court concluded that "plaintiff's present income and projected income ability should be sufficient to support one person at, or near, the standard of living enjoyed during the marriage, and that she is not a candidate for further alimony or permanent alimony."

We concluded in Diemer I that the trial court erred for several reasons. First, the trial court erred in finding that defendant "shouldered all of the family's expenses during the entire pendency of the divorce," because plaintiff worked part-time between 1997 and 1999. Diemer I, supra, A-2875-02 (slip op. at 20). Moreover, defendant did not pay all of the obligations required of him, and some of the support was on behalf of the children and not just for plaintiff. We did "not believe that defendant's 'support' qualifie[d] as rehabilitative alimony." Id. at 20-21. More importantly, plaintiff had not earned a Bachelor's degree from Sussex County Community College (SCCC), as the trial court had found, but had earned only an Associate's degree. Id. at 21.

In addition, there was no evidence that defendant could not seek a more senior position at USPS, and plaintiff had used her life insurance proceeds and inheritance to meet house expenses for her and her children; she did not have $100,000 available as found by the trial court. Ibid. Given that: (1) the marriage was long-term and plaintiff was discouraged from working by defendant; (2) plaintiff was not prepared to enter the job market with her "twenty-year old degree [from Berkeley] that had little relevancy or value today"; and that (3) plaintiff's future projected income with a graduate degree "was entirely irrelevant at the time of trial," we could "not agree that term or rehabilitative alimony was unauthorized in this case." We reversed and remanded "for reconsideration of alimony and an assessment of the monies needed by plaintiff so that she [could] complete her Bachelor's degree and thereafter re-enter the work force." Id. at 22.

We also reversed the trial court's decision regarding child support and noted the trial court had imputed $27,500 in income to plaintiff, based on its mistaken belief that she had already earned a Bachelor's degree. Moreover, additional income should have been imputed to defendant, who had failed to work extra hours, as he had done during the marriage, after he left the marital residence. We remanded for a reassessment of defendant's child support obligation to Matt in light of plaintiff's and defendant's actual present circumstances and earning power. Id. at 24-25.

We also concluded that the trial court erred in ordering the immediate sale of the marital home. The trial court ordered that sale because the real estate market in New Jersey was so strong at that time, and because it wanted to protect the parties' equity in the home; however, we disagreed because the trial court failed to consider "the parties' wishes, Matthew's needs and the significant monies owed by [defendant] to plaintiff." Id. at 31-32. Notably, defendant indicated at trial that he did not want the home sold until Matt had graduated from college. Moreover, it was unlikely that plaintiff could find comparable housing for herself and her children given her then-current circumstances. Given the money owed by defendant to plaintiff, it was "possible that plaintiff could be awarded defendant's share of the equity in the house in lieu of other payment." Id. at 32.


At the first remand hearing in August 2007, plaintiff reiterated information related to defendant's earnings and described the parties' lifestyle noting that the parties purchased their home, invested in time shares and took multiple vacations. Although the lifestyle was by no means extravagant, they shared a middle class lifestyle commensurate with their earnings.

Plaintiff also reiterated her post-marital education, issues and facts that we had discussed in Diemer I. Plaintiff's goal was to obtain a position as a speech pathologist for a school district. As of the hearing, she had applied for licenses in New York and New Jersey that would allow her to do so. She anticipated that that position would pay her approximately $50,000 per year. As a result, plaintiff chose not to apply for positions as a teacher after graduating with her Bachelor's degree in 2004 because that would have taken her off of her career path. Rather, plaintiff began work on her Master's degree and took an internship in 2006.

In May 2007, plaintiff began working in a temporary position as a speech teacher for an Orange County, New York school. Her contract paid her $7,100, less the time she missed to attend the remand hearing. As of the hearing, plaintiff had year-to-date earnings in 2007 of $6,133.60 from this teaching position.

Defendant continued to work for the USPS. The "State" wages reported on defendant's tax returns, rather than his "Federal" wages, which the parties relied upon during the hearing, were $59,251.69 in 2001, $63,528.93 in 2002, $60,428.71 in 2003, $68,434.00 in 2004, $78,192.76 in 2005 and $82,484.21 in 2006. Defendant conceded that although promotions were available and he was qualified, he never applied for any, because he was told by his superiors that doing so would be a "waste of [time]."

Defendant planned to retire once the marital home was sold, because he would have had thirty-eight years of service with the USPS as of September 6, 2007. He anticipated receiving a $4,023 monthly pension with an annuity upon his retirement.

Plaintiff lived in the marital home as of the first remand hearing. She acknowledged that Jessica had moved out, Matt was in college and he had taken an internship the past summer. Nevertheless, she wanted to keep the marital home until Matt graduated from college, so that he could maintain state aid and to store all of his belongings. Defendant was willing to let plaintiff buy out his interest; otherwise, he wanted the home sold immediately.

Plaintiff filed a Case Information Statement (CIS) on June 5, 2007. She described her income from 2006 and 2007 and listed current shelter expenses as $1,515.92 per month, transportation costs of $790 per month (which would increase by $350 when she purchased another car), and current personal expenses of $1,901 per month (which would increase by $570 per month when her student loan payments commenced). Her current total monthly expenses were $4,426.92.

Obviously, plaintiff's living expenses exceeded her income. She testified that she lived in part on the life insurance and inheritance proceeds discussed above after her mother and stepfather died. She also used that money for litigation expenses of $5,200, and to bring the mortgage on the marital home current. Plaintiff also lived on the $45,000 share she received from the proceeds of the sale of the vacant lot.

In addition, defendant paid one-half of the two mortgages on the marital residence (approximately $600 per month), health insurance for the children of approximately $35 per month, and $195 in weekly support for Matt. Defendant also paid $440 per month, approximately $10,000 in total, to pay off marital credit card debt. According to defendant, as of the time of the hearing, he was living rent-free with his girlfriend in Hamburg. The couple split the other household expenses. Defendant termed that a temporary situation, as he planned to move to his own house once he retired.

Defendant submitted a CIS, based on his expenses living in the apartment, on August 31, 2005. That CIS reflected monthly shelter expenses of $1,146.44, including $525 in rent, $385.21 in monthly transportation costs, and $1,152.83 in monthly personal expenses. Defendant's total expenses were $2,684.48 per month. Defendant noted that his income in 2004 exceeded $68,000. Defendant listed as assets his interest in the marital home, the timeshares, stock he valued at approximately $21,000 and his $123,019 of interest in his pension plan. His liabilities included the mortgage on the marital home, $7,800 in credit card debt, and $43,000 in legal fees.

Defendant conceded that before the divorce, he contributed only $650 toward his TSP, his retirement plan. In 2004, however, he contributed $8,700; the next year he contributed $10,000 and in 2006 he contributed $15,000. The balance in the account was $82,156.56 as of August 29,2007, and as of the hearing he was contributing as much as $1000 every other week. Defendant claimed that his contributions increased after 2003 because he finished paying off the marital credit card debt.

In our earlier opinion, we concluded that the timeshares were worth "$32,000 at the time of [the original] trial." At the remand hearing, plaintiff explained that although the couple purchased several timeshares during the marriage; only the Georgia timeshare is in dispute here.

Although the timeshares had been previously ordered sold, plaintiff claimed that defendant refused to cooperate with her. As a result, plaintiff paid the maintenance fees on them in order to keep them out of foreclosure. However, she was ultimately unable to continue paying those fees, and the timeshares were ultimately lost in foreclosure. In total, plaintiff paid $5,305.94 in maintenance fees from 1998 through 2003.

Defendant conceded that although he paid the maintenance fees during the marriage, he made no payments toward them after the separation. However, he claimed that plaintiff never contacted him regarding sale of the timeshares nor payment of the maintenance fees.

As to child support for the parties' son, Matt, plaintiff indicated that he was nineteen years old at the time of the hearings. He was a physics major in his sophomore year at Stevens Institute of Technology in Hoboken and spent the summer of 2007 working as an intern in New York City. However, his possessions were still at the marital home, and he lived there when not in school or on internship. Plaintiff paid for many of Matt's college expenses.

Defendant paid the child support and health insurance, and contributed one-half of the mortgages on the marital home. He also provided Matt with $20 per week in cash while he was at school, and that amount plus another $30 to $40 per week for groceries during the summer.

As for Jessica, she was twenty-three years old as of the first remand hearing. She graduated from high school in 2001, battled some illnesses, and eventually earned an Associate's degree at (SCCC). Jessica was in the process of completing her course work to obtain a Bachelor's degree from Indiana University (IU) and intended to graduate in December 2007. Defendant had never paid child support on her behalf. Jessica had married shortly before the first remand hearing, and was living with her husband in Indiana. Until Jessica married, plaintiff supported her by paying her car insurance, cell phone and by providing $200 to $300 for her expenses each month. Plaintiff also paid for substantial medical expenses incurred by Jessica.*fn2

At this hearing, defendant learned that Jessica was married. He had seen her only occasionally since 1997, and she had not responded to any of the numerous emails he had recently sent.

Following the first remand hearing, the trial judge noted that the issues before him were "a reassessment of the sale of the marital home, child support and alimony."

He concluded that "[t]he marital home should be ordered sold at this time," because Matt was in school and returned home only "for short periods and on some weekends." "There [was] no reason to maintain the home for his benefit," as plaintiff had claimed during trial. After the mortgages were paid and other credits resolved, the couple would evenly divide the remaining proceeds.

The judge next concluded that "[r]ehabilitative alimony is warranted based upon the evidence in this case." Specifically, he noted that defendant had paid $195 per week in child support for Matt, plus one-half of the mortgages and insurance and taxes on the marital home. He also paid approximately $66,000 in marital credit card debt to which plaintiff did not contribute.

However, the judge found that plaintiff had "an earning capacity of approximately $55,000 in her first full year of employment," and had had the opportunity to obtain two degrees that "will result in a stream of income which is not far from what the defendant is earning after 38 years." He rejected plaintiff's claim that the parties enjoyed an "above average lifestyle during the marriage," finding instead that they "lived a modest lifestyle on their available income."

The judge concluded, based on these facts, that "[b]y virtue of the appeal and passage of time plaintiff has received de facto rehabilitative alimony for a period of 5 years. The rehabilitative alimony recognized herein shall end effective April 20, 2008[,] some ten years since the parties separated." The parties would thereafter each be responsible for one-half of the mortgages and taxes on the marital home until it was sold; plaintiff was responsible for all utilities, maintenance and "ordinary repairs costing less than $500.00 until the property is sold."

Finally, he found that "[t]he child support guidelines [did] not apply" to Matt because he was in college and was not residing with plaintiff. He concluded, without making any further findings, that "[n]o additional child support is warranted." Nevertheless, defendant was ordered to pay $100 per week in "direct support" to Matt, to buy at least $50 of groceries for Matt each week and to maintain health insurance for Matt and pay for his unreimbursed medical expenses.

Unfortunately, the judge failed to rule on either plaintiff's request for damages related to the timeshares or her request for child support and reimbursement for Jessica's college and unreimbursed medical expenses.

We granted a limited remand, and at that hearing the parties reiterated their positions regarding their prior payments to support the timeshares.

In addition, prior testimony regarding Jessica was repeated, except Jessica claimed that her relationship with defendant was poor because defendant verbally and physically abused her and plaintiff, and that she terminated her visits with defendant after he verbally assaulted her one day without provocation. Defendant denied such abuse, and claimed that he and Jessica had a good relationship during the marriage. Defendant rarely saw Jessica after the separation; he tried to call her in December 2008, but she was not interested in speaking with him. Jessica did not respond to any of the several emails defendant sent her over the years.

As a result, defendant initially claimed that he did not learn that Jessica was actually attending SCCC until after the fact. However, he conceded during the hearing that the issue did come up during the first divorce trial, before Jessica began matriculating there.

Plaintiff and Jessica testified that Jessica attended SCCC part-time beginning in the fall of 2003, and went full-time for her final semester. She graduated in the spring of 2004. Jessica did not immediately begin college after graduating from high school, in part due to medical issues such as anxiety, depression and constant pain.

Jessica worked part-time while at SCCC and earned approximately $12,000 in 2002 and $2,192 in 2003. Nevertheless, Jessica and plaintiff testified that she was dependent on plaintiff for all of her housing, transportation and personal needs. Jessica paid the majority of her tuition at SCCC through grants, state aid and a $2,600 loan.

In the spring of 2004, Jessica began attending Indiana University, which she chose for its curriculum (she was interested in Native American studies, and the school awarded her an internship which provided her with free room and partial board during her tenure there). Plaintiff claimed that she informed defendant of Jessica's decision to study there and asked for financial assistance, both orally and in court documents. Defendant never agreed to provide such support.

Plaintiff and Jessica applied for loans so that Jessica could attend IU full-time, but their applications were denied. Jessica did obtain loans and a grant in the amount of $7,500 and attended the school part-time until she graduated. Jessica established residency in Indiana in September 2005 in order to reduce her tuition.

Jessica's college loans totaled $25,125, and with interest amounted to $34,531.10. Jessica and plaintiff both testified that plaintiff had orally agreed to assist Jessica in paying the loans, even though plaintiff was not listed as a co-guarantor.

Plaintiff claimed that she gave Jessica money while she lived in Indiana, and when she visited she bought her food and clothing.

Defendant asserted that while he learned that Jessica was attending IU in court, there was no connection between him and either plaintiff or Jessica, he received no transcripts or bill from IU and he did not ask about the cost of attending that school.

As of this hearing, Jessica had begun a "fledgling education service" by which she educated children about Native American culture and provided related services at local parks.

Plaintiff also sought reimbursement from defendant for the medical expenses she paid on Jessica's behalf until Jessica married. Plaintiff testified at length about those expenses, including oral surgery and numerous physician and prescription bills. The medical expenses for which plaintiff sought reimbursement totaled $4,378.03.

Plaintiff testified that she did not inform defendant of Jessica's medical issues because he was not interested. She did not provide defendant with copies of the pertinent bills until the first remand hearing. Defendant confirmed that he was unaware of Jessica's medical problems and did not receive any bills until the hearing.

Following this testimony, the judge at the second remand hearing denied plaintiff's requests for both child support on behalf of Jessica, and for reimbursement of her medical and college expenses. He concluded, that Jessica was emancipated as of the divorce trial. He also concluded that plaintiff was not entitled to damages relating to the foreclosure of the Georgia timeshare.


On appeal, plaintiff asserts that the judge in the first remand hearing erred in refusing to award alimony, in calculating child support for Matt and in ordering the house to be sold immediately. She further challenges the rulings in the second remand hearing, arguing that the judge erred in refusing to pay child support or reimburse for Jessica's medical expenses and in refusing to award plaintiff one-half the value of the timeshares.

We address the issues seriatim.

Plaintiff first asserts that the court erred in denying her claim for permanent or rehabilitative alimony, arguing that the remand court failed to abide by the appellate court's direction in Diemer I to recalculate her alimony based on her actual circumstances. We agree.

An award of alimony is governed by the factors enumerated at N.J.S.A. 2A:34-23(b). In Crews v. Crews, 164 N.J. 11, 16 (2000), the Supreme Court reaffirmed the principle of Lepis v. Lepis, 83 N.J. 139 (1980), and held that "the goal of a proper alimony award is to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage." The Court further reaffirmed the three factor "examination" established in Lepis, supra, 83 N.J. at 152; specifically, a court must consider the dependent spouse's needs, that spouse's ability to contribute towards those needs, and the supporting spouse's ability to maintain the other spouse in the former standard of living. Crews, supra, 164 N.J. at 24.

N.J.S.A. 2A:34-23(b) provides that a court is authorized to award "one or more of the following types of alimony: permanent alimony; rehabilitative alimony; limited duration alimony; or reimbursement alimony[.]" Rehabilitative alimony, particularly relevant here, permits a short-term alimony award to enable a supported spouse to become economically self-sufficient. Hill v. Hill, 91 N.J. 506, 509 (1982); Cox v. Cox, 335 N.J. Super. 465, 474-75 (App. Div. 2000). The focus is "upon the ability of a dependent spouse to engage in gainful employment, combined with the length of the marriage, the age of the party, and the spouse's ability to regain a place in the workplace." Id. at 475. Rehabilitative alimony "is awarded for a term determined on the basis of plans to enhance and improve earning capacity[.]" Gordon v. Rozenwald, 380 N.J. Super. 55, 66 (App. Div. 2005). Such support ceases "when the dependent spouse is in a position of self-support." Hughes v. Hughes, 311 N.J. Super. 15, 31 (App. Div. 1998). Notably, an award of both rehabilitative and permanent alimony "is favored, where appropriate." Id. at 32.

"The scope of appellate review of a trial court's fact finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate substantial credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Accord Overbay v. Overbay, 376 N.J. Super. 99, 106 (App. Div. 2005).

A trial judge must obey the mandate of an appellate court, Miah v. Ahmed, 179 N.J. 511, 528 (2004), whose "instructions to the trial court on remand are binding on that court[.]" Tomaino v. Burman, 364 N.J. Super. 224, 234 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004). In fact, "the very essence of the appellate function is to direct conforming judicial action." Id. at 233.

We concluded in Diemer I that the trial court erred in denying plaintiff any alimony in the original divorce judgment. We reversed and remanded for a consideration of defendant's alimony obligation in light of plaintiff's financial need, taking into consideration the fact that plaintiff was working toward her Bachelor's and Master's degrees.

The remand judge concluded that rehabilitative alimony was warranted. However, he found that defendant had provided $17,400 per year in support to plaintiff since the December 2002 judgment of divorce (in mortgage payments and child support) and had paid $66,000 in marital credit card debt. Further, plaintiff had by that time an earning capacity of $55,000 per year given her education.

In sum, the judge concluded that plaintiff had received "de facto rehabilitative alimony for a period of 5 years," and ordered it terminated as of April 20, 2008.

The judge erred in several respects. He made no findings regarding any of the statutory factors relevant to an award of alimony, nor did he comment on why he awarded only rehabilitative, as opposed to either permanent or permanent and rehabilitative alimony. Under the facts presented here, permanent alimony may also have been appropriate.*fn3

Rule 1:7-4 mandates that the "court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon in all actions tried without a jury[.]" The rule requires a trial court sitting without a jury to clearly state its factual findings and"'correlate them with relevant legal conclusions.'" State v. Locurto, 157 N.J. 463, 470 (1999) (quoting Curtis v. Finneran, 83 N.J. 563, 570 (1980)).

While the record does not suggest any reasons for the

judge's decision on the issue of alimony, we note that he found that defendant paid $1,450 per month in expenses on the family's behalf plus $66,000 in joint credit card debt over the last ten years, or $6600 per year ($550 per month). Given plaintiff's limited income, defendant's income of over $60,000 per year, and the fact that defendant was living rent-free for much of this time, on remand, the judge was required to consider defendant's resources and his proven ability to pay almost $2,000 per month in expenses.

In Diemer I, we noted that some of the money defendant paid toward the family's expenses benefited Jessica and Matt, and not only plaintiff, and that some of the credit card debt defendant paid might have been his debt and not marital debt. However, the remand judge relied on defendant's payment of those expenses in ruling that defendant's alimony obligation should be terminated. In addition, he alluded to and relied on the child support paid for Matt. We previously determined that expenses not geared towards plaintiff should not be considered in this respect. On remand, the judge was to consider only support defendant paid on plaintiff's behalf in deciding on the issue of alimony.

We also questioned whether the amounts defendant paid for his family qualified as rehabilitative alimony in any event. The characterization of "de facto rehabilitative alimony" appears to have disregarded our observation.

We now reverse the determination as to "de facto rehabilitative alimony." We again remand and direct the remand judge to: (1) identify and analyze the facts, and particularly the amounts defendant actually expended on plaintiff's behalf, considering the statutory factors; (2) explain why only rehabilitative, and not rehabilitative and permanent alimony, was appropriate in an almost fifteen year marriage during which the plaintiff rarely worked, mainly at defendant's request; (3) and explain how much alimony, if any, plaintiff is entitled to from the judgment of divorce forward. The remand judge shall calculate the type and amount of alimony, and then determine whether defendant is entitled to credit for payments previously made.

We reject plaintiff's request that we exercise original jurisdiction under Rule 2:10-5. Resort to original jurisdiction authority is inappropriate when fact-finding is necessary to resolve the matter. Tomaino, supra, 364 N.J. Super. at 234-35;

Hansen v. Hansen, 339 N.J. Super. 128, 143 (App. Div. 2002). The absence of fact-finding here precludes our granting this extraordinary relief.


We now address the issue of child support for both children.

Plaintiff argues that the judge erred by refusing to recalculate child support for Matt from the date between the divorce judgment and the date of his 2008 remand decision, in accordance with Diemer I, the judge erred in failing to make specific findings; and the judge erred by ordering that child support of $100 per week be paid directly to Matt.

Traditionally, a duty to contribute towards child support has been imposed based upon the ability of the parents to pay and the child's needs. Johns v. Johns, 208 N.J. Super. 733, 735 (Ch. Div. 1985). N.J.S.A. 2A:34-23(a) provides that a court, in determining the amount of child support to be paid by the supporting spouse, shall consider ten specific factors, including the needs of the child, the parents' standard of living and economic circumstances, the parents' sources of income and earning capacities and any other factors the court deems relevant. Moreover, our court rules contain guidelines to be applied by a court in determining the level of child support.

Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2429 (2011).

In establishing defendant's child support obligation to Matt, the trial judge imputed income of $27,500 ($529 per week) to plaintiff. The trial judge established defendant's gross income at $1139 per week, his actual earnings when the judgment was entered. Applying the Child Support Guidelines, the judge set defendant's obligation to Matt at $170 per week.

As we noted in Diemer I, we found that the trial judge erred in two respects - plaintiff's Bachelor degree and the failure to impute income to defendant. We remanded for a reassessment of child support "in light of plaintiff's actual circumstances," and given "defendant's actual present earning power." Diemer I, supra, A-2895-02 (slip op. at 25).

In making his salary and college degree findings, the judge concluded that "[t]he child support guidelines do not apply since Matthew is in college and does not reside with the plaintiff. No additional child support is warranted. The defendant shall pay direct support to Matthew in the amount of $100.00 per week [and] buy groceries in an amount of at least $50.00 per week[.]"

We are hampered in our analysis by the absence of findings addressing the statutory factors relevant to Matt's and defendant's future circumstances, except to note the parties' respective incomes and Matt's status as a college student. This failure necessitates a remand.

Moreover, we ordered a reassessment of defendant's then-$190 a week child support obligation from the judgment of divorce until at least the remand hearing based on the two errors noted above. Rather than recalculating defendant's obligation during that time frame, the judge relied on the circumstances then before him, i.e., that Matt was in college and that plaintiff would earn $50,000 to $55,000 per year in income.

The judge did not recalculate defendant's support obligation to Matt from the period between the December 2002 judgment and the remand hearing in May 2008. During at least part of that period, Matt was not in college but was instead living at home (i.e., he was only a sophomore at Stevens as of the remand hearing). Further, plaintiff did not obtain her Bachelor's degree until 2004, and did not graduate with her Master's degree until May 2007. During that time frame, plaintiff was entitled to a recalculation of child support for Matt as we had previously ordered.

Child support is for the benefit of the child. Pascale v. Pascale, 140 N.J. 583, 591 (1995). The judge's decision to make child support payable directly to Matt is reasonable given his current circumstances, and the limited contribution plaintiff actually makes towards his needs at the present time. We find no error in that determination.

As to the period between December 2002 and May 2008, we remand for recalculation of defendant's support obligation considering the circumstances that existed during that time frame. The judge should consider all of the statutory criteria described at N.J.S.A. 2A:34-23(a). In addition, we cannot over-emphasize the necessity of compliance with Rule 1:7-4, and the need to make the requisite findings as to the statutory factors relevant to child support from the remand decision in May 2008 going forward.

As to Jessica, we conclude that a reversal and remand is appropriate.*fn4 While we agree that Jessica was emancipated, we disagree that the emancipation event took place in 2002. In general, a parent is under no duty to contribute to the support of an emancipated child. Gac v. Gac, 186 N.J. 535, 542 (2006). The Court has held that emancipation can occur upon the child's marriage, induction into the military, by court order based on the child's best interests or by attainment of an appropriate age. Ibid.; Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). Attainment of the age of majority, eighteen, establishes prima facie, but not conclusive, proof of emancipation. Whether a child is actually emancipated at age eighteen depends upon the facts of each case. Dolce v. Dolce, 383 N.J. Super. 11, 17 (App. Div. 2006); Patetta v. Patetta, 358 N.J. Super. 90, 93 (App. Div. 2003).

The needs of the child "are determinative of the duty of support." Id. at 94. The essential inquiry is whether the child moved beyond a parents' sphere of influence and responsibility and obtained independence status. Dolce, supra, 383 N.J. Super. at 17-18. Relevant circumstances to evaluate include the needs, interests, and independent resources of the child, the family's expectations and the parties' financial ability. Newburgh, supra, 88 N.J. at 545; Dolce, supra, 383 N.J. Super. at 18.

We have held that a child is not emancipated even if the child takes a relatively brief hiatus from college, during which the child worked full-time, because the child had not yet moved beyond his or her parents' sphere of influence. Keegan v. Keegan, 326 N.J. Super. 289, 294-95 (App. Div. 1999). Moreover, residence by a minor separate from his parents, without more, does not necessarily result in emancipation. Filipone v. Lee, 304 N.J. Super. 301, 311 (App. Div. 1997).

We have previously described the circumstances related to Jessica's education and based on these facts, the judge concluded that Jessica was emancipated as of the divorce trial, and was not entitled to child support or a contribution from defendant for her college or unreimbursed medical expenses. He specifically found that, in contrast to Matt, Jessica was not awarded child support in the divorce judgment, defendant did not have to pay for her life insurance, and defendant could not take Jessica as a child dependent.

However, the divorce judgment also provided that if Jessica started at SCCC in the fall of 2002 as she planned, defendant would have had to provide medical insurance for her and might have had to pay "additional support for educational assistance" if an application for such relief was filed. Plaintiff filed an application in May 2004, and in July 2004, the trial judge required that a hearing be conducted on that issue.

The judge noted that there was a rebuttable presumption that Jessica was emancipated at age eighteen and reiterated that when the divorce judgment was entered in 2001, Jessica was emancipated. He concluded she was entitled to no support. He also noted that N.J.S.A. 2A:17-56.23(a), which he interpreted to prohibit retroactive child support, further supported his decision.

The judge acknowledged that plaintiff provided Jessica with continued support after 2002, but found that it was "voluntary" and could "not be used as a factor in determining that she was not emancipated."

He also concluded that plaintiff was not also entitled to reimbursement for Jessica's college or unreimbursed medical expenses given her emancipation. In addition, the divorce judgment did not require defendant to pay for Jessica's unreimbursed medical expenses and "there was no proof defendant could have added [Jessica] back on his [medical insurance] policy" after 2002.

The divorce judgment provided that Jessica might be entitled to additional support or educational assistance upon proper application if she actually attended SCCC. We interpret that provision so as to permit an application for additional support if Jessica attended college. She did so. Jessica attended SCCC beginning in the spring of 2002, and in July 2004, upon her application, the trial judge ordered that the issue of a contribution to Jessica's college expenses be reconsidered at a hearing. Our disagreement with the remand judge is the conclusion that because Jessica was apparently deemed emancipated in the December 2002 divorce judgment, she was not entitled to any support from that year forward.

Until Jessica left for Indiana in 2004, she was not emancipated. She was living at home at the time the divorce judgment was entered, and had actually started classes at SCCC that prior spring. From that time until she graduated from SCCC in the spring of 2004, plaintiff supported Jessica, except for the minor wages Jessica earned in 2002 and 2003 and except for college tuition. Jessica had not yet moved beyond the sphere of plaintiff's influence and responsibility and obtained independence status. Jessica had few independent resources, needed plaintiff's assistance to live and deal with her illnesses, and attended SCCC never holding a full-time job.

We conclude that Jessica was not emancipated as of the December 2002 divorce judgment. The issue of child support must be reconsidered. Upon remand, the judge shall consider defendant's obligation to contribute towards Jessica's college expenses at SCCC as well as her unreimbursed medical expenses through her graduation from that school in the spring of 2004.

Finally, we conclude that this relief is not statutorily barred. N.J.S.A. 2A:17-56.23(a) provides that [n]o payment or installment or an order for child support, or those portions of an order which are allocated for child support established prior to or subsequent to the effective date of P.L. 1993, c.45 (C.2A:17-56.23a), shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification, but only from the date the notice of motion was mailed either directly or through the appropriate agent.

This statute was adopted to avoid the financial hardship imposed on a family created by retroactive modification, J.S. v.

L.S., 389 N.J. Super. 200, 206 (App. Div. 2006), certif. denied, 192 N.J. 295 (2007), and to "remedy the loopholes of interstate child support enforcement laws in order to benefit children, not eliminate any perceived unfairness[.]" Keegan, supra, 326 N.J. Super. at 294. Nothing in the statute suggests that it was adopted to protect parents "'from retroactive modifications increasing support obligations where equitable.'" J.S., supra, 389 N.J. Super. at 207 (quoting Keegan, supra, 326 N.J. Super. at 294).

We further conclude that Jessica was emancipated once she left for Indiana. She obtained living quarters by acquiring an internship at IU, paid for almost all of her educational costs through loans and grants she received, and eventually met and married her husband, with whom she was living at the second remand hearing. While plaintiff did contribute to her needs, Jessica had moved outside of the sphere of plaintiff's influence upon her relocation to Indiana and marriage.

As to Jessica's total college expenses, mainly the $25,000 in loans, on remand, the judge shall consider whether the factors in Newburgh, supra, apply here and whether defendant has any obligation to reimburse for such costs. We make no finding as to that issue.

We recognize that the judge in the second remand hearing did not apply these factors but that was based on a finding of emancipation in 2002. This issue should be revisited on remand.

Plaintiff next asserts that the judge erred in requiring the immediate sale of the marital residence, because it would provide security for any future obligation imposed on defendant following the remand hearing. Moreover, plaintiff argues that she should be allowed to live there until Matt graduates from college, and that defendant should contribute one-half of the carrying costs. We disagree.

The marital home was purchased during the marriage and that the parties agreed that the value was slightly over $200,000. The judgment of divorce required that the home and the adjacent vacant lake lot be sold immediately, because the real estate market at that time was at a high point. The parties could maximize the value of the home by selling it immediately. The net proceeds were to be evenly divided between the parties.

We reversed, because: (1) there was little equity in the home, and thus the trial court's rationale was flawed; (2) it was unlikely that plaintiff could obtain comparable housing for her and her children at a similar cost; and (3) plaintiff might be awarded defendant's interest in the house as a credit in equitable distribution.

The remand judge ordered the home listed for sale within thirty days and sold as quickly as possible following the remand hearing. In doing so, he noted that Matt, nineteen years old by then, lived at the home only "for short periods and some weekends." Moreover, the "sale of the home is reasonable and is justified base[d] upon the economic circumstances and the age of the unemancipated child [Matt] and the status of the parties."

The court required the couple to evenly split the costs and taxes on the home pending its sale; however, plaintiff was responsible for the utilities on the home, and for all repair costs less than $500.

The remand judge's decision was correct. Plaintiff's reliance on Diemer I is misplaced, since her circumstances had changed since that opinion was rendered. Specifically, by the time of the remand hearing, plaintiff conceded that she was essentially living alone in the marital residence most of the time. Jessica was living in Indiana and Matt was a full-time student at Stevens who lived in a dormitory during the school year, and who had participated in an internship and lived in New York City during the summer prior to the remand hearing.

Nevertheless, plaintiff wanted to continue living in the home until Matt graduated from college, claiming that she needed a place for Matt to store his personal property until he graduated. Moreover, by maintaining the marital home, Matt would remain eligible for financial aid available to New Jersey state residents. However, if the house was sold plaintiff would receive one-half of the net proceeds.*fn5

Plaintiff also claims that preserving the marital house was the only way to ensure that defendant honored his continuing financial obligations. Plaintiff can move in the Family Part if she feels she needs security, but precluding sale of the house is independent of that issue.

Plaintiff also claims that the court erred in requiring her to be solely responsible for association dues and repairs costing less than $500 pending the home's sale. She relies on Diemer I, which she claims required "that the parties be equally responsible for the costs associated with the former marital residence until its sale."

We held only that defendant "should have been directed to contribute towards all of the expenses associated with the marital home . . . and that [plaintiff] is entitled to reimbursement for any monies she expended on [defendant's] behalf." The matter was remanded for an award to plaintiff "of the amounts due in connection with . . . the mortgage and the marital home expenses." Our decision was directed at the repayment to plaintiff of any money she had previously spent on home expenses, and did not require defendant to make continued payments on the house in the future.

Finally, we reject plaintiff's argument that the judge erred in denying her claim for one-half of the value of the Georgia timeshares the couple owned during the marriage.

N.J.S.A. 2A:34-23.1(i) (emphasis added) requires a court to consider the "contribution of each party to the acquisition, dissipation, . . . or appreciation" in the value or amount of property subject to distribution. The concept of "dissipation" of assets is "a plastic one, suited to fit the demands of the individual case." Kothari v. Kothari, 255 N.J. Super. 500, 506 (App. Div. 1992). The question to be answered in this respect is "whether the assets were expended by one spouse with the intent of diminishing the other spouses' share of the marital estate." Ibid. In short, if one party dissipates marital assets, resulting in a loss of marital property, the "equitable distribution scheme should be crafted to reflect that result." Chen v. Chen, 297 N.J. Super. 480, 491 (App. Div. 1997).

The judge on the second remand found that the parties were directed to sell the timeshare in the original divorce judgment, but never did so. They were ordered to sell the unit again in July 2004 but again failed to do so.

The judge found that there was insufficient evidence to demonstrate that defendant took steps to intentionally diminish plaintiff's value in the timeshare; in fact, defendant also lost his one-half interest in the asset, valued at $32,000 at trial. indicating that the loss of this asset was not intentional on his part. We find no error in his determination on this issue.

We affirm the order of May 22, 2008 ordering the sale of the marital home and the order of April 9, 2009 denying plaintiff's claim for one-half of the value of the timeshare. As to the other issues, we reverse and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.

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