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Laura Valero, N/K/A Weiss v. Kevin Valero

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 27, 2011

LAURA VALERO, N/K/A WEISS, PLAINTIFF-RESPONDENT,
v.
KEVIN VALERO, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-7910-92.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 5, 2011

Before Judges Wefing, Payne and Hayden.

Defendant, Kevin Valero, appeals from a Family Part order of April 1, 2010 reducing his obligation to provide child support to his youngest daughter to $42 per week plus $20 per week in arrears, requiring that he pay one-third of the cost of her tuition and books while attending Rider University, and requiring that he pay seventy-eight percent of her living expenses of $10,380 per year. At the time of the court's order, the daughter lived independently in rented quarters near her school and was expected to graduate in May 2011. She did not reside with either of her parents when school was not in session. The daughter's two older sisters are both emancipated.

On appeal, defendant makes the following arguments:

1. The trial court erred in fixing defendant's child support obligation [at] $42.00 per week by utilizing The New Jersey Child Support Guidelines and the solo parenting worksheet instead of the shared parenting worksheet.

2. The trial court erred in ordering defendant to pay $20.00 per week towards his arrears balance until the arrears balance is paid in full and in not ordering plaintiff to pay $1437.06 in arrears for the Fall 2009 semester and in not assessing the plaintiff's deficiency in her contribution for the Spring 2010 semester in the amount of $5,198.00.

3. The trial court erred in modifying the terms of the parties' agreement in the absence of a finding that a change in circumstances had occurred or that enforcement of its terms would be unjust.

4. No review of the factors set forth in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982) w[as] made, even though this is required when deviating from a 50/50 split in college expense contribution.

5. The court erred in not granting oral argument although requested by both parties.

We reverse and remand the matter for further proceedings in accordance with this opinion.

The parties were married in 1982 and were divorced in 1993. In connection with their divorce, they entered into an oral property settlement agreement (PSA), incorporated into the judgment of divorce, that provided for the payment of $300 per week as support for the three children of the marriage until such time as the children were emancipated. The PSA further provided that emancipation would occur upon graduation from high school unless the child attended a full-time two or four-year college program. A section captioned "College Education" provided:

The parties agree to be responsible for the children's college education in relation to their financial ability at the time each child enters college. The choice of college shall be determined by the financial ability of the parties in conjunction with the wishes of the child and her ability to receive financial aid.

Upon emancipation of the two older daughters by order dated August 20, 2004, defendant's child support obligation was reduced. On February 7, 2010, defendant moved before the Family Part for an order terminating his then-applicable weekly child support payments of $249, determining that his contribution to college expenses would be $12,948 (the amount of his child support contribution and $2,552 in excess of his agreed one-third obligation for college expenses), and requiring that plaintiff, Laura Weiss, contribute one-third of the cost of the youngest daughter's college education. Oral argument was requested.

In support of his motion, defendant certified that his daughter had graduated from Raritan Valley Community College in December 2008, and in January 2009, she had moved from her mother's house to a rented apartment and commenced attending Rider. The tuition there was $28,470 per year, and the daughter had been awarded an $8000 scholarship. The daughter's living expenses, consisting of $540 per month rent, $125 for utilities and $200 for food amounted annually to $10,380. Defendant claimed that the daughter had agreed to pay one-third of the total cost, financing that amount through loans and employment as a server at a Houlihans restaurant. Defendant asserted that plaintiff and defendant had likewise agreed to one-third payment, each. It was defendant's position that his one-third contribution should be substituted for his child support obligation. Defendant noted in his certification that plaintiff was in arrears in fulfilling her payment obligations.

Defendant supplied a financial statement, a case information statement (CIS), and his 2009 federal tax return in connection with his motion. In his CIS, he stated that his gross earned income for the prior year as a UPS truck driver had been $85,802.

Plaintiff opposed defendant's motion and filed a cross-motion. In an accompanying certification, plaintiff noted that the PSA required the parties to contribute to their children's college educational expense in accordance with their ability to do so, and that she had complied. However, she affirmed the existence of an agreement between herself, defendant and the daughter that each would pay one-third of "college bills due plus books" and she stated that such an agreement had been in effect with respect to the older two daughters until their emancipation. In that instance, defendant had paid one-third of the daughters' college expenses plus child support. Plaintiff claimed, however, that defendant had not contributed to the youngest daughter's college expenses at Raritan Valley Community College. It is unclear whether plaintiff claims that defendant failed to pay all of his share of the daughter's educational expenses at Rider.

Plaintiff certified that she was a licensed hair stylist, and that she had resumed employment in that field in June 2009. Her earnings for that year were $11,300 plus an unspecified amount in tips. She requested that the court "enforce the terms of [the parties'] divorce agreement requiring Defendant to contribute toward [the daughter's] college education in arrears from September, 2006 - May, 2011 to the best of his ability, in addition, child support until graduation from college." In a financial statement submitted with her opposition and cross-motion, plaintiff stated that her salary was $350 per week. Plaintiff did not submit a CIS. Plaintiff, like defendant, requested oral argument.

In a detailed reply certification, defendant contested many of plaintiff's assertions, claiming that plaintiff was shifting to the daughter much of the college expense cost that plaintiff had agreed to undertake. Additionally, defendant claimed that plaintiff was underemployed, and he noted that she had failed to provide information regarding her tips. He also detailed monetary payments made to his daughter in addition to his child support payments.

Without holding oral argument, on April 1, 2010, the court issued the order that defendant has appealed. In setting child support, the court utilized a sole parenting worksheet, and it accepted at face value plaintiff's earnings statement of $350 per week, without requiring a CIS or other income verification. The court did not consider defendant's claim that plaintiff was underemployed. Defendant's weekly income was based on his 2009 statement of earnings as verified by his tax returns.

Additionally, the court resolved the issue of fact regarding the extent of the parties' agreement to split educational costs by accepting plaintiff's position that it applied only to tuition and books, not to living expenses as claimed by defendant. She then utilized the percentage share of income reflected on the sole parenting worksheet to establish the proportionate contributions of plaintiff and defendant to their daughter's independent living expenses, requiring no contribution by the daughter. The court did not set an amount of defendant's arrears or explain why such arrears existed, given the fact that he was subject to a wage execution. The court did not rule on whether plaintiff was in arrears in her payment obligations.

Our review of the record satisfies us that the court was mistaken in some of its rulings, that it failed to adequately explain others, and that it also failed to rule on a number of issues. As an initial matter, we conclude that oral argument pursuant to Rule 5:5-4(a) and, likely, an evidentiary hearing should have been held in the matter. Both parties requested oral argument. Moreover, the parties' motions were substantive in nature, and they raised issues of fact regarding plaintiff's alleged underemployment, the scope of the parties' agreement to share college expenses, and the extent of arrears that should not have been determined on the papers. "[M]otions which by their nature require evidentiary hearings for disposition can never be determined on the papers alone unless there is no dispute as to any material fact." Pressler & Verniero, Current N.J. Court Rules, comment 1.1 on R. 5:5-4 (2011). Here, multiple disputes existed. In particular, the scope of the parties' agreement with respect to the sharing of college expenses and the relationship of that agreement to college-related provisions in the PSA requires exploration. Additionally, the court must set forth the basis for holding that defendant is responsible for seventy-eight percent of his daughter's independent living expenses and that she is required to make no contribution.

Defendant argues that the court erred in utilizing the sole-parenting worksheet in calculating child support. We agree. The daughter was not living with either parent, and as a result, that worksheet was inapplicable. While the shared-parenting worksheet is likewise not directly applicable in this circumstance, because it assumes the equality of both parents, it can be utilized more equitably in the circumstances presented. On remand, as an aid to the calculation of child support and other contributions to the daughter, plaintiff should be required to provide more accurate and verifiable information regarding her wages and tips, and the court should consider defendant's argument with respect to underemployment.

Defendant next argues that the court erred in not ordering payment of arrears by plaintiff. Because the amount of arrears pertaining to both parties has not been sufficiently established, a hearing on that issue should be held, as well.

We recognize the likelihood that the daughter has now graduated from Rider and, in accordance with the PSA, is eligible for emancipation. As a consequence, the financial obligations of the parties can be fixed and the matter terminated. We suggest that negotiations between the parties to settle those obligations may be beneficial. However, if they are not successful, the parties are entitled to obtain proper judicial resolution of the matters that they have raised.

Reversed and remanded. We do not retain jurisdiction.

20110727

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