K.F. v. W.F.

• Court: New Jersey Superior Court Appellate Division
• Decided: July 23, 2024
• Docket: A-3410-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3410-22

K.F.,1

Plaintiff-Respondent,

v.

W.F.,

Defendant-Appellant. _______________________

Submitted July 16, 2024 – Decided July 23, 2024

Before Judges Susswein and Perez Friscia.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-0683-17.

W.F., appellant pro se.

K.F., respondent pro se.

PER CURIAM

1 We use initials to protect the privacy of the litigants and preserve the confidentiality of certain records because we discuss the parties' financial circumstances. See R. 1:38-3(d)(1). In this post-judgment matrimonial matter, defendant W.F. appeals from a

May 26, 2023 Family Part order modifying his child support obligation and

requiring reimbursement of out-of-pocket medical expenses and child tax credits

to plaintiff K.F., the child's mother. Following our review of the record and

applicable legal standards, we affirm in part, reverse in part, and remand for

further proceedings.

I.

The parties were married in October 1996 and share one child, G.F., born

in December 2003. On May 30, 2018, the parties divorced, entering an amended

final judgment of divorce that incorporated their marital settlement agreement

(MSA).

Under the terms of the MSA, the parties agreed: "[d]efendant shall pay

child support in the amount of $285 per week" with "[z]ero overnights credited";

"[p]laintiff shall be responsible for the first $250 per year in unreimbursed and

uninsured medical expenses for [G.F.]" with "remaining expenses . . . shared

pursuant to the income percentages on the [c]hild [s]upport [g]uideline[s]

[w]orksheet"; defendant was entitled to claim the child tax exemption for even

years if "current in his child support obligation"; and "[b]oth parties shall

contribute to the college expenses" for G.F. "in accordance with the laws of the

A-3410-22 2 State of New Jersey." Defendant's child support was calculated from his gross

weekly income of $2,500 and plaintiff's gross weekly income of $3,454. The

MSA acknowledged plaintiff's final restraining order (FRO) against defendant

and his continued "reunification therapy" with G.F.

After the parties' divorce, defendant's relationship with G.F. remained

strained with limited contact and no overnight parenting time. In June 2022,

G.F. graduated high school and thereafter enrolled in a private university.

In January 2023, the Burlington County Probation Division notified

defendant that his child support obligation of $294 per week would be adjusted

to $328 per week to "provide for the biennial cost-of-living adjustment (COLA)"

under "New Jersey Court Rule 5:6B." The increased child support was effective

January 10.

Defendant subsequently moved for: G.F.'s emancipation; child support

termination; reimbursement of child support overpayments; proof of G.F.'s

college enrollment and transcripts; and other relief. Plaintiff cross-moved for:

a denial of defendant's motion in its entirety; defendant's prohibition from filing

future motions; a determination G.F. was unemancipated until college

graduation; child support "totaling $567 per week," which included $125 per

week in child support plus defendant's payment of 42% of "all living expenses";

A-3410-22 3 reimbursement of "$3,449 in out-of-pocket medical expenses"; "$15,427 in

extraordinary expenses"; contribution of "$12,474 towards . . . college expenses

pursuant to the parties['] [MSA]"; defendant's contribution to G.F.'s expenses of

"$945 per month" upon "proof of [G.F.'s] apartment lease"; tax credit

reimbursement of "$1,800 for the 2018, 2020[,] and 2022 tax years"; and other

relief. In support of his motion, defendant submitted an incomplete case

information statement (CIS) certifying a gross weekly income of $2,330.18.

Defendant did not provide his tax returns, W-2 statements, or three recent pay

stubs. Plaintiff submitted a CIS with recent pay stubs and a 2022 W-2 statement.

She also provided a proposed college "budget for [G.F.] with the [CIS]."

On May 26, 2023, following argument, the motion judge provided an

initial oral decision. On June 6, he issued an order accompanied by a written

statement of reasons, consistent with his initial ruling. The judge acknowledged

plaintiff's FRO against defendant and that there was "substantial motion

practice, primarily initiated by [d]efendant." Based on defendant's partial CIS,

without the required attachments of tax returns and pay stubs, the judge

determined defendant's and plaintiff's gross weekly incomes were approximately

$2,330 and $4,500, respectively. Defendant's accepted gross weekly income

A-3410-22 4 was less than his 2018 gross weekly income of $2,500 memorialized in the MSA

to calculate child support.

Regarding defendant's motion, the judge: denied G.F.'s emancipation "by

agreement of the parties"; denied termination of child support decreasing child

support to $300 a week from the COLA increased $328 child support amount;

granted proof of G.F.'s college enrollment each semester; granted defendant's

request to have no college contribution obligation; and addressed various other

relief. The judge granted in part plaintiff's cross-motion, requiring defendant to

pay $3,449 for unreimbursed out-of-pocket medical expenses and $1,800 in tax

credits, denying the other requested relief.

On appeal, defendant seeks reversal of the judge's decision regarding:

emancipation and child support; reimbursement for G.F.'s uncovered medical

expenses without "receipts and [o]ffice [v]isit [n]otes"; and the requirement to

pay $1,800 for "child tax credits for 2018, 2020, and 2022." Plaintiff has not

cross-appealed.

II.

We generally "accord deference to Family Part judges due to their 'special

jurisdiction and expertise in family [law] matters.'" Gormley v. Gormley, 462

N.J. Super. 433, 442 (App. Div. 2019) (alteration in original) (quoting Cesare v.

A-3410-22 5 Cesare, 154 N.J. 394, 413 (1998)). Our scope of review of Family Part orders

is limited. Cesare, 154 N.J. at 411. A judge's findings "are binding on appeal

so long as their determinations are 'supported by adequate, substantial, credible

evidence.'" Gormley, 462 N.J. Super. at 442 (quoting Cesare, 154 N.J. at

411-12).

"The parental obligation to support children until they are emancipated is

fundamental to a sound society." Ricci v. Ricci, 448 N.J. Super. 546, 569 (App.

Div. 2017) (quoting Kiken v. Kiken, 149 N.J. 441, 446 (1997)). "[I]t is also

firmly established that child support is for the benefit of the children; therefore,

the right to receive support belongs to the children, not the custodial parent."

Llewelyn v. Shewchuk, 440 N.J. Super. 207, 215 (App. Div. 2015) (alteration

in original) (quoting Colca v. Anson, 413 N.J. Super. 405, 414 (App. Div.

2010)).

Further, the "determination of emancipation is a legal issue, imposed

when the fundamental dependent relationship between parent and child ends."

Ricci, 448 N.J. Super. at 571. A child's reaching the age of majority of eighteen

is prima facie proof of emancipation, but it is not determinative. Llewelyn, 440

N.J. Super. at 216. Once the age of majority is established, "the burden of proof

to rebut the statutory presumption of emancipation shifts to the party or child

A-3410-22 6 seeking to continue the support obligation." Ibid. "The presumption . . . may

be overcome by evidence that a dependent relationship with the parents

continues because of the needs of the child." Ibid.

"[W]hile parents are not generally required to support a child over

eighteen, [the child's] enrollment in a full-time educational program has been

held to require continued support." Patetta v. Patetta, 358 N.J. Super. 90, 94

(App. Div. 2003); see also Newburgh v. Arrigo, 88 N.J. 529, 543 (1982); Khalaf

v. Khalaf, 58 N.J. 63, 71-72 (1971). "The need and capacity of a child for higher

education are two of the many factors that a court must consider in determining

the amount of child support to order." Gac v. Gac, 186 N.J. 535, 542 (2006)

(citing N.J.S.A. 2A:34-23(a)(5)).

According to the Rules of Court, the child support guidelines "shall not

be used to determine parental contributions for college or other post -secondary

education . . . expenses nor the amount of support for a child attending college."

Child Support Guidelines, Pressler & Verniero, N.J. Court Rules, Appendix IX-

A to R. 5:6A, ¶ 18 (2024). The guidelines are not utilized for a child away at

college because "part of the child's college expenses" are accounted for in the

child support guidelines award. Ibid. A "court[] faced with the question of

setting child support for [a] college student[] living away from home must assess

A-3410-22 7 all applicable facts and circumstances, weighing the factors set forth in N.J.S.A.

2A:34-23a." Jacoby v. Jacoby, 427 N.J. Super. 109, 113 (App. Div. 2012).

Issues of emancipation often require a plenary hearing, especially "'when the

submissions show there is a genuine and substantial factual dispute,' which the

trial court must resolve." Ricci, 448 N.J. Super. at 574 (quoting Shewchuk, 440

N.J. Super. at 217).

III.

We first consider defendant's contention that the judge erroneously

increased child support having failed to determine G.F. was emancipated. This

argument is unavailing because at oral argument defendant's counsel agreed that

G.F. was enrolled "in school" at a private university. Further, counsel

acknowledged receiving confirmation of G.F.'s full-time enrollment and that she

was "not presently emancipated for purposes of child support." Thus, the judge

correctly accepted "by consent" that G.F. was unemancipated in considering the

parties' requested motion relief.

We next turn to defendant's argument that his child support obligation was

increased in error. In accordance with the child support guidelines and the

parties' 2018 MSA, defendant originally agreed to pay $285 per week in child

support. At the time defendant filed his January 2023 motion, his child support

A-3410-22 8 obligation had increased to $328 per week with COLA increases. See R.

5:6B(a). Defendant's argument that the judge increased his child support

obligation is unsupported by the record because the judge ordered $300 per week

in child support—a $28 reduction from the COLA increase.

In considering G.F.'s child support needs under N.J.S.A. 2A:34-23(a)(1),

the judge ordered a decrease in defendant's child support obligation, finding

plaintiff's CIS included "a list of [G.F.]'s expenses, which total[ed]

approximately $2,967 monthly," and that "[c]ertain expenses" were

inappropriate for consideration. After discounting various expenses, the judge

concluded "[G.F.]'s necessary expenses . . . total[ed] approximately $3,000,"

without clarifying the numerical discrepancies. We note that during oral

argument before the judge, defendant's counsel addressed G.F.'s college costs

and needs, arguing "I do not believe as of today in the record we have what the

matrimonial [CIS] requires." Counsel correctly referenced that provision twelve

of Part G of the CIS requires "all relevant information pertaining to [college

expenses] . . . including but not limited to documentation of all costs and

information pertaining to . . . tuition, board and books, proof of enrollment,

proof of financial aid, scholarships, grants and student loans obtained." Our

A-3410-22 9 review of the record yields insufficient financial information regarding G.F.'s

college expenses.

Further, pursuant to N.J.S.A. 2A:34-23(a)(2), (3), (4), and (9), the judge

considered plaintiff's and defendant's respective gross weekly incomes of

approximately $4,500 and $2,330. However, the judge elucidated no reasons

for accepting defendant's reduced gross weekly income from the income

established at the time of divorce. Defendant's CIS gross income was accepted

contrary to Rule 5:5-4(a)(2) and (4), which required defendant to submit a

completed CIS with his most recent tax returns, W-2 statements, and three pay

stubs. While defendant included with his appeal appendix the CIS submitted

before the judge, he failed to provide plaintiff's CIS and only included her W-2

statements and recent pay stubs. Although "we are not 'obliged to attempt

review of an issue when the relevant portions of the record are not included ,'"

State v. D.F.W., 468 N.J. Super. 422, 447 (App. Div. 2021) (quoting Cmty.

Hosp. Grp., Inc. v. Blume Goldfaden Berkowitz Donnelly Fried & Forte, P.C. ,

381 N.J. Super. 119, 127 (App. Div. 2005)), we have considered defendant's

contentions nonetheless on the merits to the extent feasible.

Ultimately, the judge found $300 per week was appropriate "in view of

the parties' respective incomes and earning capacities, as well as G[.F.'s]

A-3410-22 10 reasonable expenses as set forth in [p]laintiff's application," but provided no

specific financial analysis and findings. Without sufficient findings to support

the decreased child support ordered, we are constrained to reverse and remand

for further proceedings consistent with this opinion. See Curtis v. Finneran, 83

N.J. 563, 570 (1980) ("[T]he trial court must state clearly its factual findings

and correlate them with the relevant legal conclusions."); see also R. 1:7-4(a).

Accordingly, we reverse the judge's child support order and remand to

calculate child support under the N.J.S.A. 2A:34-23(a) factors. The parties shall

submit their required financial information, and plaintiff shall provide updated

college information regarding G.F.'s financial needs. Specifically, the court

shall "determine the child[]'s individual needs and assess the income, assets,

debts, earning ability, age, and health of [the] child and each parent to reach an

appropriate level of support." Jacoby, 427 N.J. Super. at 122. If there are

material issues of fact in dispute, the judge hearing the matter shall conduct a

plenary hearing. See id. at 123; Spangenberg v. Kolakowski, 442 N.J. Super.

529, 540 (App. Div. 2015) (noting a plenary hearing is required when "material

factual disputes presented by the parties' pleadings bear directly on the legal

conclusions required to be made").

A-3410-22 11 We note plaintiff in opposition requests a review of the judge's order

denying defendant's college contribution and other extraordinary child-related

expenses, but she did not cross-appeal. She specifically argues the judge failed

to consider defendant's actions resulted in an FRO and G.F.'s limited visitation

with no overnights, as supported by her counselors' letters. Under Rule 2:3-4(a),

"[a] respondent may cross[-]appeal as of right" to the Appellate Division.

However, we will not consider a respondent's allegations of error asserted in a

brief but not raised by a cross-appeal. See Reich v. Borough of Fort Lee Zoning

Bd. of Adjustment, 414 N.J. Super. 483, 499 n.9 (App. Div. 2010) (declining to

address respondent's assertion of error because it was not properly raised by

cross-appeal). We only add that nothing in this opinion precludes plaintiff from

presenting a fully supported application for relief concerning contribution for

G.F.'s college expenses.

We next address defendant's argument that the judge erred in ordering

reimbursement for G.F.'s uninsured medical expenses. Specifically, defendant

contends plaintiff did not provide medical expense records, including office visit

notes, proving "[G.F.] was the patient and this was a medical visit and not a

cosmetic treatment." We are unpersuaded. Preliminarily, we note defendant's

failure to provide G.F.'s medical documentation, which was considered by the

A-3410-22 12 judge, impeded our review. The record illustrates the judge considered

plaintiff's exhibit, "a chart of the medical expenses and the [treatment] date[s]"

including the explanations of benefits. Defendant's counsel acknowledged

receipt of the submissions, arguing the invoices were not provided to defendant

contemporaneously with the medical treatment.

Rule 2:5-4(a) states in relevant part: "The record on appeal shall consist

of all papers on file in the court . . . , with all entries as to matters made on the

records of such courts." See also R. 2:6-1(a)(1)(I) (requiring the appendix to

contain parts of the record "essential to the proper consideration of the issues").

We further note the motion transcript references other documents which

defendant did not provide in his appendix on appeal. See D.F.W., 468 N.J.

Super. at 447. On the record provided, we discern no reason to disturb the

judge's order requiring defendant to reimburse plaintiff $3,449 for medical

expenses.

We also reject defendant's contention that the judge erred in requiring his

payment of $1,800 for three years of tax credits taken for G.F. The judge

correctly determined the MSA required defendant to remain "current in his child

support." The judge found sufficient proofs that defendant was in arrears and

enforced "the agreement of the parties." The record reflects the judge

A-3410-22 13 considered arrears documentation, which was also not included in defendant's

appendix on appeal. Thus, because defendant failed to demonstrate evidence in

the record established that no arrearages existed, we again discern no reason to

disturb the judge's decision.

Finally, because the judge expressed opinions, weighed evidence, "and

may have a commitment to his findings," the preferable course is to assign this

matter to a different judge on remand. Carmichael v. Bryan, 310 N.J. Super. 34,

49 (App. Div. 1998); Freedman v. Freedman, 474 N.J. Super. 291, 308 (App.

Div. 2023); see also R. 1:12-1(d). We express no views regarding the outcome

on remand. Because of the potential import on G.F., the remand shall be

expeditiously completed within sixty days and child support shall continue to be

collected by probation under the existing order while pending full review on

remand.

Affirmed in part, reversed in part, and remanded for proceedings

consistent with this opinion. We do not retain jurisdiction.

A-3410-22 14