On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-744-98.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 4, 2011
Before Judges Payne and Simonelli.
In this post-judgment matrimonial matter, plaintiff William Nieves appealed from the July 2, 2010 Family Part order, which denied his motion to emancipate the parties' daughter, D.N.,*fn1 and terminate child support, retroactive to May 31, 2009. Following a temporary remand for reconsideration of the July 2, 2010 order, the trial judge entered an order on February 7, 2011, which granted plaintiff's motion, but emancipated D.N. and terminated child support effective September 27, 2010.*fn2 We affirm in part, reverse in part, and remand for further proceedings.
Plaintiff and defendant Linda Tinati-Cuellar, f/k/a/ Linda Nieves, married in March 1985, and divorced in February 1999. D.N., born in December 1986, is their only child. Pursuant to their Property Settlement Agreement (PSA), which was incorporated into the Final Judgment of Divorce, plaintiff had to pay $113 weekly child support until D.N. reached the age of eighteen. The PSA also required plaintiff to provide health and dental insurance for D.N., but contained no provision for payment of college expenses. In February 2004, child support increased to $1000 monthly.
D.N. began attending Temple University in September 2005. On January 18, 2007, the parties filed a consent order, which required plaintiff to continue paying child support of $1000 monthly in lieu of contribution for previous or future college costs. This provision was contingent on D.N.'s enrollment as a full-time student in good standing, and terminated child support when D.N. completed her undergraduate degree at Temple. D.N. was required to provide plaintiff with verifiable evidence of her matriculation status, send her official transcript to him each semester, execute authorizations necessary for him to directly contact Temple, and permit him full access to her student records, including financial aid information and grades.
Plaintiff claimed that he encountered difficulty obtaining D.N.'s transcripts from Temple, and, when he asked defendant to provide this information, she merely provided a redacted and unofficial transcript. Plaintiff also claimed that in July 2008, he finally received a copy of D.N.'s official transcript, which revealed that she had falsified sixteen of her thirty grades on the unofficial transcript that defendant had sent him, substituting A's for D's. Also, D.N. had only seven credits for the spring 2007 semester, which no longer qualified her as a full-time student. As a result, in September 2008, plaintiff filed a motion to terminate child support because D.N. did not attend the 2007 spring semester on a full-time basis.*fn3
In opposition, D.N. submitted a certification admitting that she had modified certain grades because she was embarrassed; however, her grades had improved, and she had taken courses over two summer sessions to compensate for the classes she did not finish in the 2007 spring semester.
In a December 24, 2008 order, the trial judge denied plaintiff's motion, and required him to continue paying child support and provide health and dental insurance for D.N. The judge found that D.N. had obtained "make up" course credits during two 2008 summer sessions, she did not ask plaintiff to contribute toward those summer sessions, she was currently a full-time student in good standing and living on campus and was scheduled to graduate on time. The judge also ordered defendant give plaintiff access to D.N.'s academic and financial records, and submit a certification regarding her knowledge of D.N.'s plan to attend summer sessions.*fn4
In February 2009, plaintiff filed a motion based on the January 18, 2007 consent order to emancipate D.N. and terminate child support as of May 31, 2009, the date she would graduate from Temple. In opposition, defendant argued that D.N. planned to attend law school in the fall of 2009, and was prohibited from working during her first year.
The judge denied plaintiff's motion. After analyzing the Newburgh*fn5 factors, the judge concluded that plaintiff was not required to contribute toward law school. After applying the Child Support Guidelines, the judge reduced child support to $106 weekly, retroactive to May 31, 2009. The judge also ordered defendant to provide proof of D.N.'s enrollment in law school, allow plaintiff direct access to D.N.'s tuition information, including financial aid, scholarships or grants she receives, and arrange for plaintiff to receive proof of D.N.'s enrollment and a copy of her transcript directly from the law school after each semester. The judge entered an order on July 13, 2009, memorializing his decision.
D.N. began attending the Drexel University Earle Mack School of Law (Drexel Law School) in the fall of 2009. Plaintiff subsequently discovered that the law school permits first-year students to work up to twenty hours per week. As a result, on May 7, 2010,*fn6 he filed another motion for emancipation and termination of child support, retroactive to May 31, 2009, the date D.N. graduated from Temple. He also sought reimbursement for overpaid medical expenses from 1998 to 2008, and overpaid child support retroactive to May 31, 2009. He did not argue that D.N. was not attending law school full time; rather, he argued that D.N. had misrepresented that a law school policy prohibited her from working during her first year, but that Drexel Law School permits first year students to work up to twenty hours per week. As for terminating child support, he argued that the factors set forth in N.J.S.A. 2A:34-23, not the Child Support Guidelines, applied, and that he had satisfied each applicable factor that supported termination.
The judge deemed plaintiff's motion to be one for reconsideration of the July 13, 2009 order and denied it, finding it was untimely filed, and plaintiff knew or could have discovered prior to July 2009, that D.N. was permitted to work during her first year at Drexel Law School. Substantively, the judge found that D.N. was entitled to continued support because she was "diligently pursuing her legal education as a full-time law student . . ...