NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4973-13T4
CHRISTINE AVELINO-CATABRAN, APPROVED FOR PUBLICATION Plaintiff-Appellant, June 16, 2016 v. APPELLATE DIVISION
JOSEPH A. CATABRAN,
Defendant-Respondent. ____________________________________
Submitted December 8, 2015 – Decided June 16, 2016
Before Judges Fisher, Rothstadt, and Currier.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-791-02.
Newsome O'Donnell, L.L.C., attorneys for appellant (Lynn Fontaine Newsome, of counsel; Alyssa M. Clemente, on the brief).
Ann Crawshaw Coquin, attorney for respondent.
The opinion of the court was delivered by
ROTHSTADT, J.A.D.
In this post-judgment dissolution matter, plaintiff
Christine Ewart, formerly known as Christine Avelino-Catabran,
appeals from the Family Part's May 12, 2014 order recalculating
child support and holding her responsible for half of the parties' eldest daughter's college expenses. She also appeals
from the court's May 30, 2014 order that deemed the new child
support amount retroactive to October 25, 2012.1 Her primary
argument is that, when determining plaintiff's obligation for
college costs, the court improperly excluded from the child's
available financial aid a Federal Direct PLUS Loan (PLUS Loan)
secured by the parties. Plaintiff also contends that the court
improperly determined she should be responsible for fifty
percent of those costs. Finally, she challenges the portions of
the court's order that modified support, arguing the court
"erred in utilizing a mathematical formula to determine child
support" and in changing custody and parenting time without a
hearing.
Defendant Joseph A. Catabran disagrees and argues that the
court correctly excluded the PLUS Loan from the child's
contribution to college costs and properly required plaintiff to
be responsible for fifty percent of those expenses in accordance
with the parties' property settlement agreement (PSA). He
further contends that support was correctly calculated and that
not only did plaintiff fail to raise certain issues she now
1 This issue, however, has not been briefed, and we consider it abandoned. See N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 505 n.2 (App. Div.), certif. denied, 222 N.J. 17 (2015).
2 A-4973-13T4 argues on appeal, but she also "failed to cooperate with
discovery[, and] withheld information from . . . [and] gave
false information to the trial court." Defendant avers that
plaintiff comes before this court with "unclean hands"
preventing relief being granted to her.
We have considered the parties' contentions in light of our
review of the record and the applicable legal principles. We
affirm the court's order as to college expenses, but vacate and
remand for recalculation of child support.
The salient facts developed in the motion record can be
summarized as follows. The parties were married on June 18,
1993, and their divorce was finalized on August 14, 2002. The
final judgment of divorce (JOD) incorporated the parties' PSA,
which addressed the custody and support of their two daughters —
Catherine, now twenty-one years old, and Isabelle, seventeen.
Pursuant to the PSA, the parties shared joint legal and
physical custody of the children, with the parent of primary
residence designated as plaintiff during the school year and
defendant during the summer. The PSA required defendant to pay
$137 per week to support both children, though the parties
apparently agreed to increase this obligation to $800 per month
in 2009.
3 A-4973-13T4 The PSA also provided that the parties would be equally
responsible for the children's net college expenses — those
remaining after the children applied for financial assistance.
Specifically, it provides:
The minor children shall have an obligation to apply for any and all scholarships, student loans, grants and financial aid that may be available to help defray the cost of each child's attendance at college. After deductions for scholarships, student loans, grants and financial aid, the parties agree to be responsible for the net college educational costs of the minor children. Net college cost[s] will be split equally by both parties.[2]
In June 2004, the parties agreed to change their custody
arrangement, eliminating alternating weekends such that the
children would live full-time with plaintiff during the school
year and with defendant during the summer. They changed the
custody arrangement again in May 2011, when plaintiff and her
new husband moved to Switzerland with the children. In order to
facilitate the move, defendant signed a letter stating plaintiff
had sole custody of the children "[f]or the duration of, and
subject to, their residing in Switzerland."
2 Notably, the last sentence was a handwritten addition to the provision, initialed by the parties, that replaced stricken language that stated "commensurate with their ability to pay at the time."
4 A-4973-13T4 After graduating from high school, Catherine decided to
attend New York University (NYU) beginning in the fall of 2012.
NYU's total cost of attendance was $62,768, but the school
offered her an extensive financial aid package, which included a
$12,720 scholarship, $3000 for work-study, and a total of $7900
in student loans. It also included $39,148 in PLUS Loans, which
the award letter defined as "the maximum amount . . . . [a]
parent may borrow." (emphasis added). Catherine accepted the
full amount of the scholarship, work-study, and student loans
available to her. In an email sent to plaintiff on June 21,
2012, defendant asked plaintiff, "how much Parent PLUS Loan
should we borrow?," and suggested they borrow $12,770 to cover
plaintiff's share of the balance owed for college.3 Plaintiff
responded by directing defendant to "Please borrow this money on
behalf of Catherine." Pursuant to this exchange, defendant
accepted $12,770 of the available PLUS Loan.
On October 25, 2012, defendant filed a motion seeking a
modification of child support to reflect a split-parenting
arrangement, an order requiring plaintiff to pay half of
Catherine's net college expenses, and judgment against plaintiff
3 According to defendant, plaintiff needed the loan because her credit was bad. According to plaintiff, that loan was to be repaid by Catherine.
5 A-4973-13T4 for the amounts due on the PLUS Loan and owed to NYU for the
Spring 2013 semester, among other relief. In response,
plaintiff asserted there were no funds owed by her for
Catherine's college costs because NYU provided Catherine enough
financial aid to cover the entire cost. The financial documents
submitted indicated plaintiff's gross income was approximately
$225,000 annually and defendant's $113,000, substantially more
than the approximately $73,000 they each were earning at the
time of the divorce.
On May 1, 2013, the Family Part entered an order, dated
April 26, 2013, granting in part and denying in part defendant's
request for contribution for Catherine's schooling, and granting
his request for a child support modification (May 1 order). The
order stated, "[t]he Court has determined that the [p]laintiff
shall make a contribution to the child's college expenses but
needs the parties to submit their financial documents in order
to determine how much that contribution should be." The order
directed them to submit pay stubs and tax returns for that
purpose and for calculating the parties' support obligations
moving forward.
In its appended statement of reasons, the court found that
Catherine's financial aid package did not cover the full cost of
attendance, that the PLUS Loans were available only to parents,
6 A-4973-13T4 and that defendant had established changed circumstances
warranting a support modification. It stated that, based upon
the parties' email exchanges, "[p]laintiff was well aware of the
minor child's financial aid package [and] the loans that the
[d]efendant was taking out to cover her share of the expenses."
It also found that, based on the circumstances and superior
employment opportunities offered to NYU graduates, the child
made a legitimate decision to attend NYU instead of a school
suggested by plaintiff. As to child support, the court found
that a change was warranted because the parties' "income[s]
ha[d] changed dramatically since [they] first entered into the
PSA."
On June 4, 2013, the parties moved for reconsideration and
clarification of the May 1 order.4 The court denied the parties'
respective motions on January 24, 2014,5 determining that their
4 In response to the May 1 order, both parties submitted letters to the court requesting clarification of certain issues raised by the order — namely, the method by which support would be calculated and the extent of plaintiff's obligation to contribute to Catherine's college expenses. When the court did not respond to the parties' letters, they filed their respective reconsideration motions. 5 This was actually the second order it entered. The court signed an original order on August 15, 2013. However, the parties did not receive a copy of this order and did not learn of it until January 2014. Upon learning of the order, defendant requested the court vacate the August order and enter an identical order to protect the parties' rights to seek timely (continued)
7 A-4973-13T4 motions were attempts "to re-argue issues that were already
decided," and were time-barred. Over the next five months, the
parties submitted multiple letters to the court with additional
information regarding their finances. In one submission,
plaintiff claimed she could not afford to pay for her daughter's
college and that she had filed for "Chapter 11" relief in
bankruptcy court in June 2013.
On May 12, 2014, the court ordered plaintiff to contribute
fifty percent of Catherine's net college expenses and defendant
to provide proof of such expenses. The court also modified the
parties' support obligations, ordering defendant to pay $186 per
week to plaintiff for Isabelle, and plaintiff to pay $281 per
week to defendant for Catherine, resulting in a net payment of
$95 per week to defendant.
In the accompanying statement of reasons, the court stated
it found plaintiff had sufficient resources to contribute to
Catherine's college expenses in accordance with the parties'
PSA. In support of its determination, the court considered the
factors established in Newburgh v. Arrigo, 88 N.J. 529, 545
(continued) relief from the court's order. The court obliged, and entered an order on January 24, 2014, recognizing that a clerical error led to the original order not being forwarded to the parties and "giv[ing] [the original order] an effective date of January 24, 2014."
8 A-4973-13T4 (1982), but relied upon the PSA's express requirement that the
parties contribute equally to their children's college expenses,
noting also that "both parents share[d] the goal of educating
their daughter." It concluded that, despite her pending
bankruptcy petition, which did not impact her support
obligation, plaintiff had sufficient resources to meet her
obligation under the PSA.
As to child support, the court noted that "[d]efendant
[was] seeking a modification of child support based on the
[p]arties' daughters['] living arrangements. Namely, Catherine
is in college, and Isabelle lives overseas in Switzerland." The
court found that "the living arrangements of the children ha[d]
changed significantly enough to warrant a corresponding change
in child support." It observed that Catherine lived with
roommates at college and "primarily visit[ed] [d]efendant during
her time off from school," and that Isabelle lived in
Switzerland with plaintiff and her husband "and does not have
visitation with her father."
Based on those living arrangements, the court determined
the parties' new child support obligations by relying on a
combination of the court's Child Support Guidelines
(guidelines), R. 5:6A, and defendant's proposal for support,
9 A-4973-13T4 without setting forth the details of the proposal in the court's
decision. The court stated:
Defendant has submitted a well thought out, and clearly articulated plan for determining child support. His calculations take into consideration the incomes of the [p]arties including bonuses, income attributable to the [p]arties, conversion of Swiss [f]rancs to American [d]ollars, a 40% reduction in child support for Catherine based on her room and board taken into consideration above, medical insurance, as well as a 4% increase in child support over the guidelines to take into consideration the [p]laintiff's income being over the guidelines threshold for calculation. He has calculated the child support from him to Isabelle as $186 per week or $806 per month, and to Catherine from [p]laintiff of $281.00 per week or $1,218 per month. His calculations are not off the mark. The Court accepts the calculations and the [p]arties shall pay accordingly. This results in a payment of $95 to [d]efendant from [p]laintiff weekly.
The court attached to its statement of reasons a "Child Support
Guidelines-Sole Parenting Worksheet" for two children in a
"split-parenting situation."6
6 "The 'split-parenting' provisions . . . deal with a multi- child family in which one parent has custody of one or more children, and the other parent has custody of other children." Benisch v. Benisch, 347 N.J. Super. 393, 400 (App. Div. 2002); see also Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A, ¶ 15, to R. 5:6A at www.gannlaw.com (2016) [hereinafter Guidelines].
10 A-4973-13T4 As noted, the court later supplemented the order to clarify
that the support modification was retroactive to October 25,
2012, the date of defendant's initial motion.
After the court's entry of its orders, plaintiff filed this
appeal.
We begin by recognizing that our review of the Family
Part's determinations regarding child support is limited. We
"do not disturb the factual findings and legal conclusions of
the [motion] judge unless we are convinced that they are so
manifestly unsupported by or inconsistent with the competent,
relevant and reasonably credible evidence as to offend the
interests of justice." Rova Farms Resort, Inc. v. Inv'rs Ins.
Co. of Am., 65 N.J. 474, 484 (1974). Also, "[b]ecause of the
family courts' special jurisdiction and expertise in family
matters, appellate courts should accord deference to family
court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).
Accordingly, "[t]he general rule is that findings by a trial
court are binding on appeal when supported by adequate,
substantial, credible evidence." Gnall v. Gnall, 222 N.J. 414,
428 (2015); see also Rova Farms, supra, 65 N.J. at 483-84.
However, we confer no deference to a trial court's
interpretation of the law, which we review de novo to determine
whether the judge correctly adhered to applicable legal
11 A-4973-13T4 standards. See Manalapan Realty, L.P. v. Twp. Comm., 140 N.J.
366, 378 (1995). Reversal is reserved for only those
circumstances in which we determine the factual findings and
legal conclusions of the trial judge went "so wide of the mark
that a mistake must have been made." N.J. Div. of Youth &
Family Servs. v. M.M., 189 N.J. 261, 279 (2007).
"When reviewing decisions granting or denying applications
to modify child support, we examine whether, given the facts,
the trial judge abused his or her discretion." Jacoby v.
Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012); see also J.B.
v. W.B., 215 N.J. 305, 325-26 (2013). "If consistent with the
law, such an award will not be disturbed unless it is manifestly
unreasonable, arbitrary, or clearly contrary to reason or to
other evidence, or the result of whim or caprice." Jacoby,
supra, 427 N.J. Super. at 116 (quoting Foust v. Glaser, 340 N.J.
Super. 312, 315-16 (App. Div. 2001)).
The Family Part's "substantial discretion" in determining
child support applies equally to compelling a parent to
contribute to their child's college costs. Gotlib v. Gotlib,
399 N.J. Super. 295, 308 (App. Div. 2008). We must accept the
Family Part's determination concerning a parent's obligation to
contribute toward college tuition, provided the factual findings
are supported by substantial credible evidence in the record and
12 A-4973-13T4 the judge has not abused his or her discretion. Gac v. Gac, 186
N.J. 535, 547 (2006); Cesare, supra, 154 N.J. at 411-12.
Applying these parameters to our review, we first consider
plaintiff's arguments regarding the motion judge's conclusion
that she was obligated to pay fifty percent of her child's
college costs in accordance with the PSA, rather than
determining the extent of her obligation using the factors set
forth in Newburgh,7 and that the PLUS Loan was not part of the
7 Newburgh provides for the balancing of the following factors:
(1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; (2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education; (3) the amount of the contribution sought by the child . . . ; (4) the ability of the parent to pay that cost; (5) the relationship of the requested contribution to the kind of school or course of study sought by the child; (6) the financial resources of both parents; (7) the commitment to and aptitude of the child for the requested education; (8) the financial resources of the child . . . ; (9) the ability of the child to earn income during the school year or on vacation; (10) the availability of financial aid in the form of college grants and loans; (11) the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and (12) the relationship of the education requested to any prior training (continued)
13 A-4973-13T4 child's independent financial aid resources, relying upon NYU's
inclusion of PLUS Loans as a type of financial aid available to
its students and the distinction made in the PSA between
"student loans" and "financial aid." She warns that the court's
finding that PLUS Loans are not considered financial aid "will
undoubtedly have wide sweeping public policy implications,"
namely by "modify[ing] the intent of any Property Settlement
Agreement containing this language." We find her arguments to
be without merit.
The trial court correctly enforced the provisions of the
PSA that obligated plaintiff to be equally responsible for the
(continued) and to the overall long-range goals of the child.
[Newburgh, supra, 88 N.J. at 545.]
Notably, defendant correctly argues that plaintiff did not raise these factors to the motion judge as being applicable to the parties' dispute, contending instead that the language of the PSA supported her position. She now asserts them on appeal because they were considered by the motion judge, who, after identifying the factors in his written decision, relied upon the parties' PSA in ordering plaintiff to contribute towards her daughter's education. Under these circumstances we choose to consider and clarify the issue rather than, as defendant argues, exercise our right to "decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest." Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).
14 A-4973-13T4 children's college expenses. Absent "compelling reasons to
depart from the clear, unambiguous, and mutually understood
terms of the PSA," a court is generally bound to enforce the
terms of a PSA. Quinn v. Quinn, ___ N.J. ___, ___ (2016) (slip
op. at 36) (enforcing termination of alimony consistent with the
parties' agreement regarding cohabitation). Consistent with New
Jersey's "strong public policy favoring stability of
arrangements in matrimonial matters," id. at ___ (slip op. at
19) (quoting Konzelman v. Konzelman, 158 N.J. 185, 193 (1999)),
where matters in dispute in a post-judgment matrimonial motion
are addressed in a PSA, courts will not "unnecessarily or
lightly disturb[]" the agreement so long as it is fair and
equitable. Id. at ___ (slip op. at 20) (quoting Konzelman,
supra, 158 N.J. at 193-94); see also Pacifico v. Pacifico, 190
N.J. 258, 266 (2007) (a matrimonial agreement is enforceable so
long as it is not inequitable); Dolce v. Dolce, 383 N.J. Super.
11, 20 (App. Div. 2006) (PSAs are entitled to "'considerable
weight with respect to their validity and enforceability' in
equity, provided they are fair and just." (quoting Petersen v.
Petersen, 85 N.J. 638, 642 (1981))). If the meaning of the
agreement is in dispute, "[t]he court's role is to consider what
is written in the context of the circumstances at the time of
the drafting and to apply a rational meaning in keeping with the
15 A-4973-13T4 'expressed general purpose.'" Pacifico, supra, 190 N.J. at 266
(2007) (quoting Atl. N. Airlines v. Schwimmer, 12 N.J. 293, 302
(1953)).
However, if circumstances have changed in such a way that
strict enforcement of the agreement would no longer be
equitable, a court remains free to alter prior arrangements.
See Quinn, supra, ___ N.J. ___ (slip op. at 25-26); see also
Lepis v. Lepis, 83 N.J. 139, 146-48 (1980). Similarly, "[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.'" Quinn,
supra, ___ N.J. at ___ (slip op. at 23) (quoting Miller v.
Miller, 160 N.J. 408, 419 (1999)).
Absent inequity or unanticipated changed circumstances not
addressed by the agreement, a court is obligated to enforce its
terms when it was "entered [into] by fully informed parties,
represented by independent counsel, and without any evidence of
overreaching, fraud, or coercion." Id. at ___ (slip op. at 35).
Otherwise, "the court eviscerates the certitude the parties
thought they had secured, and in the long run undermines this
Court's preference for settlement of all, including marital,
disputes." Id. at ___ (slip op. at 36).
16 A-4973-13T4 A court's obligation to enforce marital settlement
agreements applies to provisions regarding the parents'
obligation to pay for their children's college expenses.
Although parents generally are not obligated to support a child
who has attained the age of majority, "in appropriate
circumstances, the privilege of parenthood carries with it the
duty to assure a necessary education for children." Newburgh,
supra, 88 N.J. at 543. "In general, financially capable parents
should contribute to the higher education of children who are
qualified students." Id. at 544.
Accordingly, where parties to a divorce have reached an
agreement regarding children attending college and how those
college expenses should be divided, and no showing has been made
that the agreement should be vacated or modified, the Family
Part need not apply all twelve factors pertinent to college
expenses as identified in Newburgh, supra, 88 N.J. at 545.
Rather, the court should enforce the agreement as written.8 See
Quinn, supra, ___ N.J. at ___ (slip op. at 35-36). Cf. Gac,
supra, 186 N.J. at 544-45 (discussing the determination of
college contribution in the absence of a PSA or JOD addressing
8 In the absence of an agreement by the parties regarding the specific division of college costs, courts should balance the factors set forth in Newburgh and the statutory criteria of N.J.S.A. 2A:34-23(a), along with any other factors the court deems relevant to a fair allocation of expenses.
17 A-4973-13T4 the parents' obligations); Newburgh, supra, 88 N.J. at 534
(requiring consideration of factors where there was no agreement
regarding college expenses); Gotlib, supra, 399 N.J. Super. at
307-08 (finding Family Part erred in failing to consider factors
where JOD provided that college expenses would be divided "in
accordance with appropriate legal standards"); Moss v. Nedas,
289 N.J. Super. 352, 354, 360 (App. Div. 1996) (approving
balancing of factors where PSA allocated costs "in proportion to
[the parents'] ability to contribute").9
Here, the language of the parties' PSA clearly provides
that "[n]et college cost[s] will be split equally by both
parties," and the court considered their abilities to afford
that contribution before ordering plaintiff to contribute
equally, thereby ensuring there would be no undue burden on
either parent. Given that plaintiff's income was at least two
hundred thousand dollars per year, it cannot be said that the
court's finding that she has sufficient resources to contribute
equally, despite her pending bankruptcy petition, is "manifestly
unsupported by or inconsistent with the competent, relevant and
9 In Moss, the PSA stated that the parents would pay college expenses "in proportion to their ability to contribute," and the mother and the child had concealed important facts about college attendance from the father and even from the Family Part as the dispute was being litigated. Moss, supra, 289 N.J. Super. at 354-55.
18 A-4973-13T4 reasonably credible evidence." Gnall, supra, 222 N.J. at 414
(quoting Cesare, supra, 154 N.J. at 412).
We are not persuaded otherwise by plaintiff's contention
that she is not responsible for payment of the PLUS Loan she
authorized defendant to secure "for Catherine." Catherine is
not eligible to apply for or receive PLUS Loans herself. See 20
U.S.C.A. § 1078-2(a) (defining eligibility for PLUS Loans);
Office of Fed. Student Aid, U.S. Dep't of Ed., Direct PLUS Loan
Basics for Parents 8 (2015). Therefore, the PLUS Loans cannot
be considered a student loan or financial aid available to
Catherine for which she had to apply, as contemplated by the
parties. The court correctly determined that plaintiff
authorized the loan and she was responsible for same.
Turning to child support, we initially reject as being
without merit plaintiff's contention that the court improperly
determined, without a hearing, that defendant established a
change in circumstances warranting modification of support. We
afford deference to the family court's determination regarding
the need for a support hearing and review them for an abuse of
discretion. Jacoby, supra, 427 N.J. Super. at 123. A hearing
is required only "when the submissions show there is a genuine
and substantial factual dispute . . . , and the trial judge
determines that a plenary hearing is necessary to resolve the
19 A-4973-13T4 factual dispute." Hand v. Hand, 391 N.J. Super. 102, 105 (App.
Div. 2007); see also Jacoby, supra, 427 N.J. Super. at 123.
The court here correctly determined from the parties'
submissions that Catherine's living at college and spending her
time off with her father, rather than living in Switzerland with
her mother, was a change in circumstances warranting a
modification in support. See Jacoby, supra, 427 N.J. Super. at
113. We reject plaintiff's contention that by recognizing the
children's current living arrangements the court changed
custody. We also agree with the court's undisputed finding that
the parties' incomes had substantially changed since their
divorce. "A change in circumstances warranting modification of
support may . . . result from an alteration in the fortunes of
either party." Stamberg v. Stamberg, 302 N.J. Super. 35, 42
(App. Div. 1997). A supporting spouse "is as much entitled to a
reconsideration of child support where there has been a
significant change for the better in the circumstances of the
dependent spouse as where there has been a significant change
for the worse in the [supporting] spouse's own circumstances."
Ibid.
Plaintiff also contends the court erred in modifying the
parties' child support obligations, as it used an incorrect
method to calculate the award because it considered the factors
20 A-4973-13T4 set forth in the guidelines rather than those set forth in
N.J.S.A. 2A:34-23(a),10 as required by Jacoby. Jacoby, supra,
427 N.J. Super. at 122. Defendant responds, arguing plaintiff
cannot claim error in the court's calculation, as she neither
criticized his proposed formula nor provided any alternative
method of calculation for the court to apply. We reject
defendant's argument and agree with plaintiff.
10 N.J.S.A. 2A:34-23(a) requires the court to consider:
(1) Needs of the child;
(2) Standard of living and economic circumstances of each parent;
(3) All sources of income and assets of each parent;
(4) Earning ability of each parent . . . ;
(5) Need and capacity of the child for education, including higher education;
(6) Age and health of the child and each parent;
(7) Income, assets and earning ability of the child;
(8) Responsibility of the parents for the court-ordered support of others;
(9) Reasonable debts and liabilities of each child and parent; and
(10) Any other factors the court may deem relevant.
[N.J.S.A. 2A:34-23(a).]
21 A-4973-13T4 We conclude the motion judge failed to satisfy his
obligations to properly calculate the child support award and to
issue a clear statement of his reasons for the court's award.
The court's reliance on defendant's use of the guidelines for
calculating child support and its incorporation by reference of
defendant's calculations were both improper and warrant
reversal.
When applicable, the guidelines must be used to calculate
child support awards. R. 5:6A; see also Guidelines, supra,
Appendix IX-A. However, the support amount provided for by the
guidelines may be "modified or disregarded by the court" upon a
showing of good cause. R. 5:6A; see also Guidelines, supra,
Appendix IX-A, ¶ 2. All support orders, even those relying upon
a strict application of the guidelines, "must be based on the
evidence and supported by a statement of reasons." Pressler &
Verniero, supra, comment 1.2 on R. 5:6A.
If a court determines deviation from the guidelines is
appropriate, it must nevertheless calculate the guidelines-based
support award and state the specific findings justifying its
deviation therefrom — specifically, why deviation is in the best
interests of the child. R. 5:6A; see also Guidelines, supra,
Appendix IX-A, ¶ 21. Thus, a court must follow this procedure
when deviating from the guidelines to fix support in accordance
22 A-4973-13T4 with an agreement by the parties. See Guidelines, supra,
Appendix IX-A, ¶ 22.
When a trial court issues reasons for its decision, it
"must state clearly [its] factual findings and correlate them
with relevant legal conclusions, so that parties and the
appellate courts [are] informed of the rationale underlying
th[ose] conclusion[s]." Monte v. Monte, 212 N.J. Super. 557,
565 (App. Div. 1986). The trial court does not discharge that
function simply by recounting the parties' conflicting
assertions and then stating a legal conclusion, or, as here,
incorporating by reference one of the parties' arguments. Also,
a court cannot simply attach a guidelines worksheet in lieu of
providing a statement of reasons. Fodero v. Fodero, 355 N.J.
Super. 168, 170 (App. Div. 2002).
When "faced with the question of setting child support for
college students living away from home," however, the guidelines
are inapplicable and the court must determine support based on
the factors set forth in N.J.S.A. 2A:34-23(a). Jacoby, supra,
427 N.J. Super. at 113; see also Guidelines, Appendix IX-A ¶ 18.
Reliance exclusively upon the guidelines in these situations
constitutes reversible error. Jacoby, supra, 427 N.J. Super. at
113.
23 A-4973-13T4 Here, the court was required to consider the factors set
forth in N.J.S.A. 2A:34-23(a) when calculating support for
Catherine, as she was a college student living away from home.
See Jacoby, supra, 427 N.J. Super. at 113. With respect to the
parties' younger daughter, Isabelle, the court was required to
apply the guidelines and explain any deviations therefrom. See
R. 5:6A. The court did neither. Instead, the court relied upon
defendant's "well thought out, and clearly articulated plan for
determining child support," and accepted defendant's support
calculations after determining they were "not off the mark."
The court's statement regarding its abdication to defendant of
its obligation to calculate support did not satisfy its
obligation to provide a statement of reasons for its decision.
See R. 1:7-4.
The court's reliance on defendant's proposed calculations
for Catherine's support was also improper because the relied-
upon calculation was based on the guidelines. R. 5:6A. As we
stated in Jacoby,
courts faced with the question of setting child support for college students living away from home must assess all applicable facts and circumstances, weighing the factors set forth in N.J.S.A. 2A:34-23a. Resort to the [guidelines] to make support calculations for college students living away from home is error.
24 A-4973-13T4 [Jacoby, supra, 427 N.J. Super. at 113 (citation omitted).]
Finally, defendant's argument that plaintiff cannot
challenge the court's method of calculation for the first time
on appeal is without merit, as the court's support calculation
was plainly inconsistent with established law. See Nieder,
supra, 62 N.J. at 235; Jacoby, supra, 427 N.J. Super. at 116.
In sum, due to the court's failure to analyze the factors
set forth in N.J.S.A. 2A:34-23(a) when calculating Catherine's
support, and to properly calculate Isabelle's award under the
guidelines and explain any deviation therefrom, we conclude the
court abused its discretion by calculating the support award in
a manner inconsistent with established law, and reverse the
court's order modifying support. We remand for determination of
child support anew.
In light of our determination, we need not reach the
parties' remaining arguments.
Affirmed in part; reversed and remanded for calculation of
child support and the issuance of a statement of reasons
consistent with this opinion. We do not retain jurisdiction.
25 A-4973-13T4