Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Neiss v. Neiss

Superior Court of New Jersey, Appellate Division

October 9, 2013

JOSEPH M. NEISS, Plaintiff-Respondent,
KRIS M. NEISS, Defendant-Appellant.


Submitted October 2, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-142-06.

Kris M. Neiss, appellant pro se.

Caruso & Baxter, P.A., attorneys for respondent (Gregory S. Baxter, on the brief).

Before Judges Fasciale and Haas.


In this post-judgment matrimonial matter, defendant appeals from the April 2, 2012 order of the Family Part granting plaintiff's motion to emancipate the parties' son[1] and the court's June 8, 2012 order denying defendant's motion for reconsideration and awarding plaintiff $2, 457.75 in counsel fees. We are constrained to reverse and remand because the trial court did not conduct a plenary hearing and did not make adequate findings of fact and conclusions of law.

The parties were married in 1981 and divorced on May 31, 2006. At the time of the divorce, the son was a senior in high school. The son has a history of, and receives treatment for, some disabilities. However, the parties dispute the full extent of his condition and its impact on his educational pursuits.

The parties' Property Settlement Agreement (PSA) required plaintiff to pay defendant $130 a week in child support. The PSA provided that the parties' son would be deemed emancipated as of the date of his graduation from high school unless he enrolled in an "undergraduate college." If the son attended college, the PSA stated he would "not be deemed emancipated until [he] completes undergraduate college, " provided he was a "full[-]time student in good standing, completing twelve (12) credits or more per semester, without interruption . . . ."

Upon his graduation from high school, the son enrolled at Brookdale Community College. He remained there for two years on a full-time basis. In September 2008, he transferred to Rutgers University, where he hoped to be accepted into the music program. On November 7, 2008, the parties entered into a consent order, which required them to contribute equally to their son's college costs and expenses. The son completed one full year at Rutgers, but was not accepted into the music program.

In the fall semester of 2009, the son enrolled in a four-year music program at West Chester University (WCU) in Pennsylvania. Defendant asserts that the son advised plaintiff of his plan to attend WCU before he enrolled, but plaintiff denies that he approved his son's decision to attend.

The parties also dispute WCU's program requirements. The son's transcript indicates that he was able to transfer sixty-four of the credits he previously earned at Brookdale and Rutgers to WCU. Nevertheless, defendant contends the son must still remain in the program for the full four years to earn his degree. In addition, she asserts that some of the courses the son took at WCU would not count toward his degree. However, plaintiff argues he was not advised there was a problem with the son's credits or that it would take four years for him to complete the WCU program.

Plaintiff paid half of the son's expenses at WCU for three semesters. When plaintiff failed to make any further contributions, defendant obtained an order on March 4, 2010 requiring him to continue to pay half of the college costs.

On December 19, 2011, plaintiff filed a motion to emancipate the parties' son. Defendant filed a motion on December 27, 2011 to require plaintiff to continue to pay his portion of the son's tuition. For reasons that are not clear from the record, the trial court did not consider the two motions together. Instead, on February 3, 2012, the court granted plaintiff's motion to emancipate the son "as unopposed for reasons set forth in the parties' moving papers, without prejudice." On February 9, 2012, however, the court considered defendant's motion and entered a second order "unemancipating" the son "because of his fulltime enrollment in college."

On February 27, 2012, plaintiff filed a motion for reconsideration of the February 9 order. On April 2, 2012, the court entered an order vacating the February 9 order, emancipating the son, and terminating plaintiff's support obligations retroactive to January 1, 2012. The court explained its ruling as follows:

[W]hat is a concern of mine is that [the son] is attending [WCU] and is a music major [and] is now in his seventh year of college.
And it doesn't appear to, from what I, you know, I know both sides have different opinions on this, - - different positions that, the defendant maintains that the plaintiff is not interested in maintaining a relationship with [the son] and the plaintiff says, well he's left in the dark as to all events with [the son]. And probably the truth lies somewhere in the middle.
However, you know, I believe that it is time that [the son stood on] his own two feet. I mean, it's seven years and I don't buy the defendant's argument that the plaintiff knew that it is a four-year program. You know, I, what I think occurs is that on a four-year program you can transfer credits in and some credits do transfer, some do not. But I don't find that from the day he sets foot in [WCU] that it's a four-year program.
I think yeah, okay, it may have taken some time for [the son] to find his way and you know, five years, you know, I certainly wouldn't be critical of that . . . . Five-and-a-half years, okay. But seven, seven-plus years, I think it's about time that [the son] is accountable for his own future.
And so I'm going to grant plaintiff's relief.

On April 26, 2012, defendant filed a motion for reconsideration, which the court denied on June 8, 2012. In an oral decision, the judge stated:

First off, the time for which to file a motion for reconsideration is out of time. And while under normal circumstances, I might be willing to forego that. However, I don't see any new evidence, anything that [] wasn't considered the last time this case came before me, for me to change my decision.
While [the son] certainly has a right to pursue a music career, I'm not satisfied that it is totally, the reason why it has taken so long for him to get through college is because of his disability. I saw his transcripts . . . .
. . . The point I'm trying to make is that it sounds to me that there is something more to it than just simply his disability as to why he is not completing his education quicker than later.
I don't think it's fair for the plaintiff to have to bear this burden, number one. Number two, I find that . . . the evidence that has been presented to me that [plaintiff] has been kind of left in the dark on this. [Plaintiff hasn't] had any meaningful relationship with [the son], certainly not with [defendant] and has not been brought up to speed as far as [the son's] future, his plans, his career goals, his academics, course curriculum, et cetera[.]
I think Gac [v.] Gac is [the] controlling case. [T]he factors in Gac have been considered and accordingly, the defendant's motion is denied.

The court also ordered defendant to pay $2, 457.75 in counsel fees to plaintiff. The court stated, "I'm going to order counsel fees, I don't believe this was in good faith. It shouldn't have been filed. And quite frankly, I haven't seen anything different from [] the last time the parties were before me." This appeal followed.

In determining whether a child has become emancipated, "the 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.'" Filippone v. Lee, 304 N.J.Super. 301, 308 (App. Div. 1997) (quoting Bishop v. Bishop, 287 N.J.Super. 593, 598 (Ch. Div. 1995)). This issue "is always fact-sensitive." Ibid. Therefore, if there are factual issues material to the determination of whether a child has become emancipated, the trial court must conduct an evidentiary hearing to resolve those issues. Johnson v. Bradbury, 233 N.J.Super. 129, 136-37 (App. Div. 1989). Our review of the record compels us to conclude that the evidence presented by the parties in their certifications is clearly conflicting and therefore deserving of resolution at a plenary hearing.

The trial court granted plaintiff's request to emancipate the parties' son and denied defendant's motion for reconsideration. However, the court's finding as to the son's ability to "stand on his own two feet" is not supported by the limited record developed on the competing motions. There was no evidence presented that the son had attained an independent status of his own or that he had moved beyond the sphere of influence of his parents. In this regard, the parties substantially disagreed as to the extent of their son's disabilities, the effect of those disabilities on his capacity to succeed at taking a minimum of twelve credits per semester, and whether, because of his disabilities, the son was able to support himself on his own.

In addition, the parties disputed whether the music education program at WCU was four years in addition to the courses the son already completed at the other schools, whether the son's failure to receive credit for some courses brought him below the twelve-credit minimum despite his being enrolled for twelve or more credits, and whether his attendance at school was in fact full-time. The parties also could not agree whether the son kept plaintiff fully apprised of his education plans prior to enrolling at WCU, whether plaintiff approved of those plans, and whether plaintiff was responsible for his poor relationship with his son. Finally, the court failed to address the provision of the PSA which required child support to continue until their son completed his undergraduate degree program and did not determine whether the parties ever intended for a time limit to be placed on the completion of his studies. Resolution of these hotly contested issues plainly required a plenary hearing.

Besides failing to conduct a hearing, the trial court did not explain why it chose one version of the facts set forth in the parties' competing certifications over another. Instead, the court simply expressed a belief that the parties' son should stand "on his own two feet" and stated that it was "not satisfied" that his disability prevented him from completing his studies sooner. The court identified Gac v. Gac, 186 N.J. 535 (2006) as a "controlling case, " but did not apply the specific facts of this matter to the decision in any meaningful way. The court did not adequately explain why it found on February 9, 2012 that the son should not be emancipated because he was a full-time college student only to reverse this decision on essentially the same proofs a few months later.

Finally, the court failed to make sufficient findings of fact supporting its decision to grant plaintiff's request for counsel fees. An award of counsel fees in family actions is permitted by Rule 5:3-5(c) and Rule 4:42-9(a)(1). See Berkowitz v. Berkowitz, 55 N.J. 564, 570 (1970). Although the award is discretionary, N.J.S.A. 2A:34-23 requires the court to consider the following factors set forth by court rule:

(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 both during and prior to trial; (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); See also Mani v. Mani, 183 N.J. 70, 93-94 (2005).]

Here, the court stated that defendant's motion for reconsideration was not filed in good faith. However, because the court made three different decisions between February 3, 2012 and April 2, 2012 on the son's emancipation status, we perceive no support in the record for the court's finding. In addition, the court did not address any of the other factors required by Rule 5:3-5(c).

Rule 1:7-4(a) clearly states that a trial "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[.]" See Shulas v. Estabrook, 385 N.J.Super. 91, 96 (App. Div. 2006) (requiring an adequate explanation of the basis for a court's action). "'Meaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion.'" Strahan v. Strahan, 402 N.J.Super. 298, 310 (App. Div. 2008) (quoting Salch v. Salch, 240 N.J.Super. 441, 443 (App. Div. 1990)). The failure to provide findings of fact and conclusions of law "'constitutes a disservice to the litigants, the attorneys and the appellate court.'" Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (quoting Kenwood Assocs. v. Bd. of Adjustment of Englewood, 141 N.J.Super. 1, 4 (App. Div. 1976)).

Because the trial court did not conduct a plenary hearing as required due to the sharply conflicting certifications of the parties on material factual issues, and failed to make any meaningful findings of fact, the April 2, 2012 and June 8, 2012 orders must be reversed and the matter remanded for a plenary hearing.

Reversed and remanded. We do not retain jurisdiction.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.