NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2679-17T4
CARMELO BELARDO,
Plaintiff-Appellant,
v.
MARY JO BELARDO,
Defendant-Respondent. _________________________
Argued January 22, 2019 – Decided February 21, 2019
Before Judges Messano and Gooden Brown.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1564-03.
Gregory S. Baxter argued the cause for appellant (Caruso & Baxter, PA, attorneys; Gregory S. Baxter on the briefs).
Mary Jo Belardo, respondent, argued the cause pro se.
PER CURIAM In this post-judgment matrimonial matter, plaintiff ex-husband appeals
from a January 8, 2018 Family Part order denying his motion to emancipate the
parties' only child, a daughter born March 1998, and ordering him to pay sixty
percent of their daughter's college costs. For the reasons that follow, we reverse
and remand for further proceedings.
The parties married in 1997 and divorced in 2004. Under the parties'
property settlement agreement (PSA), which was incorporated into their
November 10, 2004 dual judgment of divorce (DJOD), defendant ex-wife had
"sole legal custody" and "primary physical custody" of their daughter, and
plaintiff was required to pay child support of $180 per week, payable through
the Probation Department. However, "[t]he parties agree[d] to recalculate child
support" when their daughter became "eligible to receive social security
benefits" based on plaintiff's anticipated receipt of benefits in 2006 when he
turned sixty-two years of age, "or upon the happening of any other change in
circumstances."
Pertinent to this appeal, under the PSA, plaintiff's child support obligation
would continue until their daughter was "deemed emancipated" upon the
occurrence of any of the following:
a. reaching the age of [eighteen] years or the completion of [four] academic years of continuous
A-2679-17T4 2 college education consisting of full[-]time attendance, taking at least twelve (12) credits per semester, whichever last occurs;
....
[b]. permanent residence away from the residence of the parent who has physical custody. A residence at . . . college is not to be deemed a residence away from the residence of the parent who has physical custody and hence such residence . . . is not to be deemed emancipation; [or]
[c]. engaging in full[-]time employment upon and after the attainment by the child of [eighteen] years of age, except if the child is in college[.]
Regarding the parties' obligation to contribute to college expenses, the
provision of the PSA entitled "College/Vocational School" specifically
provided:
Should the child desire to attend college or vocational school and have the ability to do so, each party shall be responsible to share the cost and expense of said college or vocational school, to the extent that each shall be financially able to do so, after first utilizing all loans, grants[,] and scholarships available to the child. Said costs shall include, but shall not be limited to application fees, tuition, costs, fees, financial aid consulting fees, room and board, books[,] and commuting expenses. The choice of said college or vocational school shall be mutually agreed upon in advance by . . . [plaintiff], . . . [defendant,] and the
A-2679-17T4 3 child. Neither party shall unreasonably withhold agreement with regard to said choice.
Additionally, the parties "agree[d] that child support [would] be renegotiated in
the event that the child attend[ed] college or vocational school and live[d] away
from home."
In negotiating and executing the PSA, the parties acknowledged "they
[had] been fully represented by their respective counsel," with whose services
"they [were] satisfied," and they understood "the legal and practical effect of
[the] [a]greement." They further acknowledged that the agreement was "fair and
equitable, that they enter[ed] into same voluntarily with no coercion, t hreats[,]
or undisclosed promises," and that the agreement was "not the result of any
fraud, duress[,] or undue influence" exercised by anyone.
Prompted by their daughter's high school graduation in June 2016, in a
June 17, 2016 consent order, the parties acknowledged their shared "obligation
to provide for the full-time college or vocational school education of [their
daughter]," and agreed to exchange financial information, including "2014 and
2015 tax returns," "W-2's" and "recent paystubs[,]" in order "to address the issue
. . . per the parties['] [PSA]." The financial documents were due within fourteen
days of the execution of the order.
A-2679-17T4 4 Thereafter, on March 23, 2017, plaintiff moved to emancipate their
daughter and terminate his child support obligation, effective April 1, 2017,
based upon her graduation from the Robert Fiance Beauty School (Robert
Fiance). Plaintiff also sought an order terminating his "obligation to pay any
amount toward [their daughter's] college/vocational school expenses . . . as of
[April 1, 2017,]" or limiting his contribution to the amount he "ha[d] already
paid" towards the Robert Fiance expenses. In the alternative, plaintiff sought a
recalculation of his child support obligation, taking into consideration his
payments to Robert Fiance and his daughter's receipt of social security benefits.
In his supporting certification, plaintiff stated that after graduating from
high school, their daughter enrolled in Robert Fiance's "ten month program" and
was graduating in March 2017. Plaintiff asserted "[i]t was [his] understanding
that [their daughter] would emancipate . . . upon her graduation from Robert
Fiance." Thus, at defendant's request, he had paid eighty percent of the total
cost, or $6760, in order for their daughter to attend Robert Fiance, and believed
that the payment satisfied his college contribution obligation under the PSA .
However, in "approximately [July] 2016," defendant advised him via text
message that their daughter "might attend Brookdale Community College
[(Brookdale)]." In addition, after Probation notified plaintiff that his child
A-2679-17T4 5 support obligation would automatically terminate on August 1, 2017, defendant
requested a "[c]ontinuation of [s]upport" based on their daughter's enrollment in
"college or other post-secondary education program," which resulted in a
determination that his child support obligation would continue until Ma rch 11,
2021.
Although plaintiff did "not know if [their daughter] ever attended
Brookdale," he did not believe he had "any responsibility to further contribute
to the cost of [her] attending college or Brookdale" because "the terms of both
[their] PSA and the [June 17, 2016 consent] [o]rder" only obligated him to pay
for "either college or vocational school[,] [n]ot both." Further, when he paid for
Robert Fiance, defendant represented to him in a text message that she was "not
asking [him] to pay for college."
Plaintiff also objected to paying for "any college above and beyond Robert
Fiance" because his daughter "ha[d] refused to have a relationship with [him,]"
and neither his daughter nor defendant consulted him about college in any
meaningful way. Plaintiff asserted that following the divorce, despite being
awarded "supervised parenting time," "[d]efendant did whatever she could to
prevent [him] from having any relationship at all with [their daughter,]" and, as
a result, he had no contact with her from 2003 to 2015. Further, he never
A-2679-17T4 6 received any acknowledgements for the "greeting cards" and "magazine
subscriptions" he sent her regularly during that time period. After he initiated
contact with her via text messaging, they exchanged texts and had four visits
from 2015 to 2016. However, according to plaintiff, as soon as he arranged to
make the Robert Fiance payments, "[their daughter] ceased speaking to [him]."
Plaintiff declared that if their daughter was not emancipated, he sought a
recalculation of child support 1 based on changed circumstances. Plaintiff stated
that he was then "[seventy-two] years old, . . . [twenty-one] years older than
[d]efendant," and, despite working "full-time" "as an optician," "simply
want[ed] to retire." 2 Plaintiff certified he "collected age-based Social Security
Benefits" since turning "age [sixty-five,]" and believed defendant and their
daughter received a "derivative Social Security Benefit" from his benefit. He
asserted further that defendant was "employed on a full[-]time basis as a sales
associate" and, although "[he did] not know how much [she] earn[ed,]" he
"believe[d] that [her] income ha[d] increased since [their] [d]ivorce." Plaintiff
1 Plaintiff certified he currently paid child support of $217 per week as a result of cost of living increases. 2 An addendum to the PSA provided that "[plaintiff's] retirement at age [sixty- two would] be a sufficient change of circumstances warranting a recalculation of [child] support, providing his income [was] reduced as a result of his retirement." A-2679-17T4 7 also criticized defendant for failing to provide her current financial information
as required by the consent order, despite his compliance. As a consequence, he
sought appropriate relief from the court.
Defendant opposed the motion and cross-moved for an order establishing
the respective college contributions of the parties, as well as other relief not
pertinent to this appeal. In her supporting certification, defendant disputed most
of plaintiff's assertions. Specifically, defendant certified that "[n]otwithstanding
[p]laintiff's efforts to avoid the discussion, [she had] engaged in repeated and
many communications with [p]laintiff about [their] daughter's college
education." According to defendant, rather than being emancipated, their
daughter "[was] attending Brookdale" "full-time," "commuting to college from
[defendant's] home," and "receiving scholarship funding[,]" resulting in an
"expected net cost" to them of "less than [$1000]" in college expenses.
Defendant supplied a letter from Brookdale College's enrollment specialist
indicating that their daughter was enrolled full-time for the Fall 2016 and the
Spring 2017 semesters.
Defendant asserted that plaintiff misinterpreted the PSA because "the use
of 'or' in [their] agreement as to vocational school and college was [never]
intended to limit [their] daughter's academic and life progress to one or the
A-2679-17T4 8 other." Defendant also denied preventing plaintiff from having a relationship
with their daughter and attributed "any distanced relationship" to plaintiff.
Additionally, defendant denied that their daughter was "receiving social security
benefits[,]" and denied that she (defendant) failed to provide financial
information as required by the consent order. Defendant claimed that her
earnings from working "at an eye glass store" represented twenty-five percent
of the parties' total income while plaintiff, "a most successful professional[,]"
earned the remaining seventy-five percent.
In a reply certification, plaintiff refuted several of defendant's contentions.
Specifically, plaintiff denied that either defendant or their daughter "ever
approached [him], consulted [him,] or otherwise advised [him] that [their
daughter] was going to attend Brookdale prior to her doing so." Further,
contrary to defendant's contention that he refused to reimburse her for the
Brookdale expenses, plaintiff denied receiving any schedules, grades[,] or
expenses from Brookdale or being provided "access to anything." While
plaintiff acknowledged that, at age nineteen, their daughter "may no longer [be]
receiv[ing] Social Security [b]enefits," he reaffirmed that "[she] received these
benefits for many years while [he] paid guideline child support." Further,
A-2679-17T4 9 plaintiff denied that defendant provided "her financials," in direct violation of
the consent order.
Plaintiff requested oral argument as permitted under Rule 1:6-2(c). Upon
being notified that the trial court wished to hear the motion and cross-motion on
the papers, plaintiff's counsel sent a letter to the court renewing plaintiff's
request for oral argument. Plaintiff's counsel also objected to the court
considering defendant's supplemental certification and attached exhibits,
submitted in response to plaintiff's reply certification without leave of court in
violation of Rule 1:6-3(b).3
Notwithstanding plaintiff's request, on January 8, 2018, over nine months
after plaintiff's motion was filed, without conducting oral argument, the court
denied plaintiff's motion to emancipate their daughter, or, in the alternative,
recalculate child support, and ordered him to contribute sixty percent towards
college expenses. In the statement of reasons accompanying the order, the court
applied the factors delineated in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982),
to determine a parent's obligation to pay for college expenses. Additionally, in
making factual findings, the court relied on the college contribution provision
3 Defendant's supplemental certification and exhibits were not provided by either party and are therefore not part of the record. A-2679-17T4 10 in the PSA, the parties' financial information, and the college expenses incurred
to date as supplied by defendant.
The court determined that "if the parties were still living together[,] . . .
they both would have contributed" to their daughter's college expenses and
"[had] the means to contribute." The court also found the cost of attendance, in
comparison to the parties' annual income, would not constitute "an unreasonable
burden," and was "in line with the traditional costs associated with programs at
[Robert Fiance] and [Brookdale]." Moreover, according to the court, the child
demonstrated the necessary aptitude for college, having completed Robert
Fiance, and now attending Brookdale "to enhance her future employment
prospects."
The court was "unable to determine whether either of the parties had been
actively engaged in [their daughter's] decision to attend [Robert Fiance] and
[Brookdale,]" and acknowledged that "[p]laintiff ha[d] a strained relationship
with [their] daughter." Nonetheless, the court determined "based on what has
been provided, . . . that [p]laintiff has attempted and continue[d] to attempt [to
have] a relationship with [their] daughter by way of correspondence and
contributing towards [their daughter's] college expenses in 2016."
The court concluded:
A-2679-17T4 11 [T]he parties[] have an obligation to contribute to [their daughter's] college expenses. The court acknowledges that [plaintiff's] lack of a relationship with the parties' child and [defendant's] failure to provide [plaintiff] with the child's course schedules and grades should bar him from having a college contribution obligation. However, the court will not dismiss [plaintiff's] obligation due to the fact that the parties' child has made a significant effort to continue her education and apply for grants, loans, and scholarships, which have almost completely covered the costs of her education.
At no point in the statement of reasons did the court expressly address the
provision of the PSA requiring plaintiff to contribute to either "college or
vocational school." This appeal followed.
On appeal, plaintiff argues the court erred in denying oral argument,
which is permitted under Rule 5:5-4(a) "when significant substantive issues are
raised." Plaintiff also argues the court "did not have the right to change the
parties' agreement" and confer a benefit to defendant that "was contrary to the
agreement reached by the parties." Thus, plaintiff argues the court erred in not
emancipating their daughter, and terminating his "obligation to provide child
support" and contribute to "college costs . . . based on the parties' agreement and
the case law." Additionally, plaintiff argues that "[a]ny reliance" placed on
defendant's "second reply certification should . . . be voided" as violating Rule
1:6-3(b).
A-2679-17T4 12 We begin with a review of basic principles. "Although we are obliged to
defer to the factual findings and discretionary decisions made by the Family Part
due to the specialized nature of the court," Barr v. Barr, 418 N.J. Super. 18, 31
(App. Div. 2011) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)), "a question
regarding the interpretation or construction of a contract is a legal one and our
review is plenary, with no special deference to the trial judge's interpretation of
the law and the legal consequences that flow from the established facts." Ibid.
It is well established that matrimonial agreements, like the PSA in this case, are
basically contractual in nature. Pacifico v. Pacifico, 190 N.J. 258, 265 (2007).
Thus, its interpretation is subject to de novo review on appeal. Zabilowicz v.
Kelsey, 200 N.J. 507, 512-13 (2009). See Kaur v. Assured Lending Corp., 405
N.J. Super. 468, 474 (App. Div. 2009) (reviewing the enforcement of a
settlement agreement de novo).
While we recognize "[t]he basic contractual nature of matrimonial
agreements," we grant "'particular leniency to agreements made in the domestic
arena'" and allow the Family Part "'greater discretion when interpreting such
agreements.'" Sachau v. Sachau, 206 N.J. 1, 5 (2011) (quoting Guglielmo v.
Guglielmo, 253 N.J. Super. 531, 542 (App. Div. 1992)). Nonetheless, New
Jersey has a strong public policy favoring the enforcement of PSAs. Massar v.
A-2679-17T4 13 Massar, 279 N.J. Super. 89, 93 (App. Div. 1995). As a result, these agreements
are approached with the presumption that they are valid and enforceable, and
will be enforced "if they are fair and equitable." Ibid. Indeed, "fair and
definitive arrangements arrived at by mutual consent should not be
unnecessarily or lightly disturbed[,]" Quinn v. Quinn, 225 N.J. 34, 44 (2016)
(quoting Konzelman v. Konzelman, 158 N.J. 185, 193-94 (1999)), and "a court
should not rewrite a contract or grant a better deal than that for which the parties
expressly bargained." Id. at 45.
To that end, in interpreting a PSA, "courts should discern and implement
the intentions of the parties[,]" and not "rewrite or revise an agreement when the
intent of the parties is clear." Ibid. "[W]hen the intent of the parties is plain and
the [PSA] language is clear and unambiguous, a court must enforce the
agreement as written, unless doing so would lead to an absurd result." Ibid.
However, "[t]o the extent that there is any ambiguity in the expression of the
terms of a settlement agreement, a hearing may be necessary to discern the intent
of the parties at the time the agreement was entered and to implement that
intent." Ibid. (citing Pacifico, 190 N.J. at 267). In making that determination,
courts look to the "'language used, the situation of the parties, the attendant
circumstances, and the objects the parties were striving to attain.'" Barr, 418
A-2679-17T4 14 N.J. Super. at 32 (quoting Celanese Ltd. v. Essex Cty. Improvement Auth., 404
N.J. Super. 514, 528 (App. Div. 2009)).
Applying these principles, we are constrained to reverse the court's
decision ordering plaintiff to contribute sixty percent towards college expenses
because the court failed to consider and enforce the explicit term of the PSA,
which was reinforced by the consent order. The PSA clearly required plaintiff
"to share the cost and expense" of "college or vocational school," which he did.
Inasmuch as the agreement was voluntary, knowing, and consensual, and "not
the result of any fraud, duress[,] or undue influence," there were no compelling
reasons to depart from the clear, unambiguous, and mutually understood terms
of the PSA. See Quinn, 225 N.J. at 47 ("A narrow exception to the general rule
of enforcing settlement agreements as the parties intended is the need to reform
a settlement agreement due to 'unconscionability, fraud, or overreaching in the
negotiations of the settlement[.]'" (alteration in original) (quoting Miller v.
Miller, 160 N.J. 408, 419 (1999))).
While we are satisfied that the PSA provision regarding plaintiff's college
contribution obligation obviated the need for an analysis of the issue under
Newburgh, parenthetically, we note that had such an analysis been required,
given the conflicting certifications of the parties, the court should have
A-2679-17T4 15 conducted a plenary hearing rather than adjudicate the issue on the papers. "[I]n
a variety of contexts, courts have opined on the impermissibility of deciding
contested issues of fact on the basis of conflicting affidavits or certifications
alone." State v. Pyatt, 316 N.J. Super. 46, 50 (App. Div. 1998). In particular,
where the parties' certifications raise issues of fact or require credibility
determinations, relief cannot be denied absent a plenary hearing. Whitfield v.
Whitfield, 315 N.J. Super. 1, 12 (App. Div. 1998).
Likewise, courts have noted that litigants should be permitted oral
argument of motions other than calendar matters and routine discovery
applications when requested "as a matter both of due process and the appearance
of due process." Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997);
see also Pressler & Verniero, Current N.J. Court Rules, cmt. 1.1 on R. 5:5-4
(2019) ("[T]here is a strong presumption favoring argument of motions other
than calendar matters and routine discovery applications.").
To that end, Rule 5:5-4(a) expressly provides:
Motions in family actions shall be governed by [Rule] 1:6-2(b) except that, in exercising its discretion as to the mode and scheduling of disposition of motions, the court shall ordinarily grant requests for oral argument on substantive and non-routine discovery motions and ordinarily deny requests for oral argument on calendar and routine discovery motions.
A-2679-17T4 16 "The discretion afforded by Rule 5:5-4(a) is designed to give the judge
'the option of dispensing with oral argument . . . when no evidence beyond the
motion papers themselves and whatever else is already in the record is necessary
to a decision. In short, it is the sole purpose of these rules to dispense with what
is regarded as unnecessary or unproductive advocacy.'" Palombi v. Palombi,
414 N.J. Super. 274, 285 (App. Div. 2010) (alteration in original) (quoting Fusco
v. Fusco, 186 N.J. Super. 321, 328-29 (App. Div. 1982)).
However, a judge's inquiry does not end simply because the "nature of an
issue presented can be labeled as pertaining to a substantive issue" or when the
parties disagree on all facts. Id. at 286. "Other circumstances, such as the
sufficiency of the supporting facts alleged are also relevant to the exercise of
discretion. This is particularly true in the case of motions that seek a
modification of financial obligations . . . because the movant must satisfy certain
requirements before these motions are ripe for decision by the court." Ibid.
To be sure, the issue of emancipation is "substantive" by nature.
Filippone, 304 N.J. Super. at 306. Nonetheless, plaintiff's request for oral
argument was effectively denied despite the parties' widely divergent and
conflicting certifications and the court's own acknowledgement that there were
gaps in the record. Thus, we remand for the court to conduct oral argument,
A-2679-17T4 17 and, if necessary, a plenary hearing on the issue of emancipation. 4 See Llewelyn
v. Shewchuk, 440 N.J. Super. 207, 217 (App. Div. 2015) (noting "[t]he critical
evaluation required for emancipation determinations typically necessitates a
plenary hearing, especially 'when the submissions show there is a genuine and
substantial factual dispute[,]' which the trial court must resolve" (second
alteration in original) (quoting Hand v. Hand, 391 N.J. Super. 102, 105 (App.
Div. 2007))); see also Tretola v. Tretola, 389 N.J. Super. 15 (App. Div. 2006)
(reversing the court's emancipation ruling because the court failed to conduct a
plenary hearing and "failed to recognize there were material facts in dispute and
evidence beyond the motion papers necessary for resolution of the matter").
Based on our decision, we need not address plaintiff's remaining
arguments, with the following exception. Plaintiff filed a motion to suppress
4 We disagree with plaintiff's contention during oral argument that if we agree he satisfied the condition in the PSA regarding his obligation to contribute to college expenses, then the child is automatically emancipated. See Newbugh, 88 N.J. at 543 (noting that despite finding "the facts did not warrant an award solely for college expenses," a court may order "continued support of son while son [was] enrolled as [a] student") (citing Jonitz v. Jonitz, 25 N.J. Super. 544, 556 (App. Div. 1953)). On the contrary, the PSA specifies that their daughter would be deemed emancipated upon the occurrence of certain events, including "completion of [four] academic years of continuous college education consisting of full[-]time attendance[.]" Thus, under the PSA, the child may not be deemed emancipated until she completes college, notwithstanding the termination of plaintiff's obligation to contribute to those expenses. A-2679-17T4 18 defendant's brief pursuant to Rule 2:6-9, arguing that the brief does not conform
with the court rules. However, in light of our decision and in the interest of
justice, we deny the motion.
Reversed and remanded for proceedings consistent with this opinion. We
do not retain jurisdiction.
A-2679-17T4 19