NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 only binding 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-2039-14T3 A-5032-14T3 A-5033-14T3 A-5034-14T3
MICHELE KRIEGMAN,
Plaintiff-Appellant,
v.
TARA SAE-CHIN,
Defendant-Respondent.
________________________________________________________________
Submitted September 27, 2016 – Decided August 16, 2017
Before Judges Espinosa and Suter.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-136-97.
Michele Kriegman, appellant pro se.
Respondent Tara Sae-Chin has not filed a brief.
PER CURIAM
Plaintiff filed appeals from four post-judgment child support
orders, dated October 15, 2014; January 23, 2015; March 23, 2015;
and May 21, 2015. We have consolidated the appeals from the three orders entered in 2015 and consolidate plaintiff's appeal from the
October 2014 order for the purpose of writing a single opinion.
For the reasons that follow, we affirm in part and reverse in
part, and conclude plaintiff's appeal from the May 2015 order is
moot.
I.
The parties have engaged in robust and extensive litigation
since their divorce in 1998. They entered into a property
settlement agreement (PSA) that governed their support obligations
for their three children and custody. Originally plaintiff had
sole legal and residential custody of all three children, Abigail,
Elanya and Derek.
The PSA provides, in relevant part, that a child is deemed
emancipated upon:
[t]he child reaching the age of twenty-two years or the completion of four continuous academic years of college education, whichever last occurs provided that the child takes no more than one year from graduation from high school prior to entry into college . . . .
Abigail graduated from college in May 2009. Elanya graduated
from college in May 2013 and Derek was scheduled to graduate from
college in May 2015.
There were several orders entered by the trial court,
including a consent order, the validity of which are not in
2 A-2039-14T3 dispute, that modify the parties' child support obligations under
the PSA.
The March 2005 consent order designated defendant as having
residential custody of Abigail and reduced his child support
obligation. Plaintiff retained residential custody of Elanya and
Derek. The order also directed the appointment of a certified
public account (CPA) and identified the reason for his appointment
and the scope of his assignment:
The parties have been unable to agree upon the arrears owed to one another, if any, relative to the unreimbursed medical expenses, with claims for the children, through December 31, 2004. The parties appoint Barry Pierce, C.P.A. as a jointly appointed arbitrator to determine what amount, if any, unreimbursed medical expenses are owed to one another.
Based upon their 2005 income, Pierce determined the
appropriate allocation for expenses to be: plaintiff 18%/defendant
82%. Pursuant to the final judgment of divorce, this percentage
was used to divide the cost of summer camp in 2006.
An October 2006 order established defendant's child support
obligation while Abigail was away from home, and defined certain
terms in the PSA.
Among other things, the January 18, 2013 order (1) emancipated
Abigail and terminated child support for her by consent of the
parties, (2) ordered the parties to set up an escrow account to
3 A-2039-14T3 fund college expenses as a percentage of their combined income at
an amount/percentage to be determined, and (3) awarded plaintiff
$2,451 for medical expenses and $2,472.30 for summer camp expenses
to be paid by defendant.
On April 11, 2014, the court entered an order declaring Elanya
emancipated by consent of the parties as of June 1, 2013.
Defendant's child support payments were reduced. Furthermore, the
order reflected the court's determination that the parties were
to split Derek's college expenses, with plaintiff paying thirty-
five percent (35%) and defendant paying sixty-five percent (65%).
Plaintiff was ordered to pay $500 and defendant to pay $927 of the
then outstanding balance of Derek's tuition.
Thereafter, the trial court ordered a plenary hearing to
resolve "a multitude of factual disputes" concerning child-related
expenses. The first of the orders challenged on appeal constituted
the trial judge's decision on the claims litigated in the plenary
hearing. The remaining orders appealed from followed.
II.
In reviewing orders regarding child support and related
matters, 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). Trial courts have "substantial
discretion" in making such determinations. Foust v. Glaser, 340
4 A-2039-14T3 N.J. Super. 312, 315 (App. Div. 2001). This is particularly true
in the adjudication of matrimonial matters, where the evidence is
primarily testimonial, "because the trial judge has 'a feel of the
case' and is in the best position to 'make first-hand credibility
judgments about the witnesses who appear on the stand.'" Elrom
v. Elrom, 439 N.J. Super. 424, 433 (App. Div. 2015) (quoting N.J.
Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).
Therefore, when this court "concludes there is satisfactory
evidentiary support for the trial court's findings, its task is
complete and it should not disturb the result." Ibid. (quoting
Beck v. Beck, 86 N.J. 480, 496 (1981) (internal quotation marks
omitted).
However, reversal is appropriate when "the trial court's
factual findings are 'so manifestly unsupported by or inconsistent
with the competent, relevant and reasonably credible evidence as
to offend the interests of justice . . . .'" Ibid. (quoting Rova
Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484
(1974)). In other words, a trial court will have abused its
discretion "when a decision is made without a rational explanation,
inexplicably departed from established policies, or rested on an
impermissible basis." Jacoby, supra, 427 N.J. Super. at 116
(citations and internal quotation marks omitted).
5 A-2039-14T3 While deference is accorded to the trial court as to fact-
finding, its "legal conclusions, and the application of those
conclusions to the facts, are subject to our plenary review."
Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013) (citing
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995)). As always, questions of law are reviewed de novo.
Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App.
Div. 2007).
Finally, Rule 1:7-4 requires judges trying issues without a
jury to include the findings of facts and conclusions of law in
each determination they make. Compliance with Rule 1:7-4 is
crucial because "[m]eaningful appellate review is inhibited unless
the judge sets forth the reasons for his or her opinion." Salch
v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990).
This court has firmly established that "[n]aked conclusions
are insufficient" and judges "must fully and specifically
articulate findings of fact and conclusions of law." Heinl v.
Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996) (citing R. 1:7-
4). In short, a failure to comply with Rule 1:7-4 ordinarily
results in remand. See Strahan v. Strahan, 402 N.J. Super. 298,
310 (App. Div. 2008) (reversing and remanding a trial judge's
child support award because it "failed to make the specific
6 A-2039-14T3 findings of fact necessary to sustain its decision regarding the
amount" contained in the award).
We turn to review the challenged orders and the trial court's
reasoning as to each.
III.
The opinion accompanying the October 15, 2014 order states
the court awarded plaintiff $23,441.79 on their children's tuition
and college expenses, Abigail's travel expenses, Derek's bar
mitzvah expenses, and prior awards entered by the court. Plaintiff
was ordered to pay Villanova, Derek's university, $6,277.95 for
his tuition and late fees. Plaintiff's claims for withheld child
support payments resulting from an incorrect calculation of
Abigail's emancipation date and defendant's overnight parenting
time were denied. The trial judge also denied some of plaintiff's
claims for tuition, college expenses and all of her claims for
other non-college/non-child support expenses. Defendant was
awarded $36,958.24 for the overpayment of Elanya's child support
and Derek's college tuition. After offsetting the award of
$23,441.79 to plaintiff against an award of $36,958.24 to
defendant, the trial judge's calculation resulted in an order that
provide in pertinent part:
1. The Plaintiff shall reimburse the Defendant the sum of $13,516.45 within forty- five (45) days.
7 A-2039-14T3 2. The Plaintiff shall take immediate steps to pay the balance of Derek's college tuition for Villanova of $6,277.95 plus any late fees ($150).
Plaintiff challenges the trial judge's failure to
retroactively emancipate Abigail and recalculate support
obligations accordingly and argues his factual determinations
regarding tuition, college and other expenses lack support in the
record. She further contends the trial judge: used the wrong
percentages to calculate defendant's obligation for Derek's bar
mitzvah, omitted an award to her of expenses defendant agreed to
pay, failed to apply a "reasonableness standard" in determining
whether defendant should pay for certain expenses and erred in
failing to credit her for defendant's unused overnight visitation. 1
We address each of these arguments in turn.
Abigail's emancipation
Plaintiff argues the trial judge used an inconsistent
methodology to determine the emancipation dates for Abigail and
Elanya, resulting in an unfair advantage to defendant. She asserts
that Abigail graduated from college before June 1, 2009 and that
1 Plaintiff made other claims, that are not in dispute on appeal, of (1) $3,413.59 for Elanya and Derek's automobile expenses; (2) $10,000 tax credit plaintiff claimed defendant improperly received for claiming Elanya as a dependent; (3) $2,084.58 for Abigail's post-graduate courses; (4) $4,923.30 previously ordered by the court; and (5) $25,000 for counsel fees reimbursements.
8 A-2039-14T3 "due to an oversight, she was not declared emancipated until" an
order dated January 18, 2013. An order had been entered in April
2014 that declared Elanya emancipated, retroactively, as of June
1, 2013 and directed that child support be recalculated
accordingly.2
Plaintiff asserts she asked for a corresponding retroactive
declaration of Abigail's emancipation and recalculation of child
support credits. She also contends that defendant received a
credit for Abigail for 185 weeks after her "de facto emancipation,"
and that this "resulted in improperly reduced child support" to
plaintiff for the two younger children. She does not, however,
provide citations to the record to support her statement that she
made such a request or her conclusion that her child support was
"improperly reduced" as a result.
The trial judge considered plaintiff's request as both a
claim for "back child support for Abigail" and a claim for
reimbursement or credit for the child support defendant did not
have to pay for Abigail. The trial judge observed that plaintiff
did not "truly have an affirmative claim for payment of child
support. Her claim is that Defendant benefited financially by not
having to pay child support for Abigail although Plaintiff did not
2 Plaintiff states she consented to the retroactive emancipation and recalculation.
9 A-2039-14T3 pay child support either." He concluded plaintiff's claim had
been waived because Abigail was declared emancipated by consent
in January 2013.
Whether plaintiff has stated a claim for the payment of child
support or waived such a claim are questions of law, subject to
de novo review. See Reese, supra, 430 N.J. Super. at 568 (citing
Dep't of Envtl. Prot., supra, 395 N.J. Super. at 601). Although
we do not condone plaintiff's belated assertion of her claim,
which resulted in unnecessary piecemeal litigation, we do not
conclude her delay foreclosed consideration of her claim.
Plaintiff provides the following rationale for her claim that
she is entitled to $49,500 from defendant. When Abigail went to
live with defendant, the March 2005 order lowered defendant's
child support obligation by $315 per week. When Abigail went away
to college, child support was modified, reducing the amount
defendant was credited for his support of Abigail by $45 per week.
As a result, she contends she was entitled to recover the $270
weekly offset to defendant's support obligation for the 185 weeks
from Abigail's graduation until the January 2013 order.
The premise for plaintiff's argument is that defendant's
child support payment to her would have automatically reverted to
his child support obligation prior to March 2005. This overly
simplistic premise is flawed. In essence, plaintiff requested a
10 A-2039-14T3 change in child support based on the change in circumstances caused
by Abigail's emancipation. Yet, her request is unsupported by the
documentation required to obtain such relief. See R. 5:5-4(a).
Her premise also ignores the fact that in the intervening years
there were other changes in the parties' circumstances, including
the younger children's attendance at college, that would have an
impact on support obligations. In short, the record does not
support plaintiff's contention that she was entitled to an
automatic retroactive increase of the claimed amount based upon
Abigail's belated emancipation.
Nonetheless, because the trial judge dismissed plaintiff's
claim on waiver grounds, the record fails to show that he
considered the economic consequences of Abigail's retroactive
emancipation for the parties' obligations and credits. Therefore,
a remand is necessary for the trial judge to determine what
credits, if any, are due plaintiff based upon the retroactive
emancipation of Abigail.
Tuition and College expenses for Derek and Elanya
Plaintiff argues the trial judge erred in his determination
of the parties' obligations and credits for payments made for
tuition and college-related expenses for Derek and Elanya. She
contends the judge's determinations lack support in the record,
that the judge erred in calculating the award and overlooked
11 A-2039-14T3 relevant evidence regarding her payment of expenses for Elanya and
Derek. The trial judge's failure to provide an adequate factual
basis and explanation for his determinations as well as
irreconcilable discrepancies in his characterizations of the sums
at issue, preclude a meaningful analysis of plaintiff's arguments.
As a preliminary matter, we note the following discrepancies
in the amounts the trial judge attributed to plaintiff's claims
in his initial breakdown and his later listing of plaintiff's
claims for reimbursements, and, for convenience, list the
disposition of those claims.
Breakdown "Claims" Award
Elanya
$7,071.36 tuition $11,176.21 $7.071.36
$13,598.83 non-tuition $11,561.98 $3,800.15 college expenses
$2,976.30 non-college $ 3,083.32 Denied expenses
Derek
$1,361.10 non-tuition $ 2,548.65 $1,1153 college expenses
$3,167.68 non-college $ 2,981.89 Denied expenses
3 We infer this amount was credited to plaintiff because the statement of reasons says, "Defendant accepts liability for $1,115 sought for Derek's college related expenses."
12 A-2039-14T3 The disparity between the two iterations of plaintiff's
claims is neither explained nor resolved in the judge's statement
of reasons. The following constitutes the portion of the trial
judge's October 2014 opinion that addresses the parties' awards
and obligations for their children's college expenses:
Defendant accepts liability for $1,115 sought for Derek's college related expenses. . . . Plaintiff has established tuition payments for Elanya entitling her to reimbursement of $7,071.36. (P-2a). Plaintiff has established college expenses for Elanya entitled her to reimbursement of $3,800.15. (P-11). . . .
Defendant has established that he has paid his portion of Derek's tuition as required of $17,016.38. Most recently Defendant paid $11,659.05 towards Derek's $17,937 tuition bill and the Plaintiff has failed to pay. Plaintiff shall make immediate payment of $6,277.95 plus any late fees ($150) to Villanova to protect Derek's right to uninterrupted education. Defendant has also established payment of $77,000 towards Abigail's tuition. (D-2). Plaintiff therefore owes him $26,950.
As is evident from this excerpt, the trial judge provided no
reasoning as to how he determined the amounts owed on each claim.
Because his citations to trial exhibits (i.e., "P-2a" and "D-2")
lack any description of their contents, it is not possible to
determine what support, if any, exists in the record for his
conclusions. For example, the trial judge acknowledged that
plaintiff sought a $11,561.98 reimbursement for Elanya's college
13 A-2039-14T3 expenses. He awarded her approximately one-third of that amount,
but provides no explanation as to why the award was reduced so
drastically. The sweeping statement, "Plaintiff has failed to
prove by a preponderance the balance of her claims," fails to
satisfy the requirement of Rule 1:7-4. See, e.g., Strahan, supra,
402 N.J. Super. at 310.
Plaintiff argues the trial judge omitted or overlooked
exhibits that documented tuition expenses for Elanya. She asserts
she supported her claim regarding Elanya's college expenses with
$12,165.47 in documented expenses and that the trial judge
overlooked two exhibits in awarding only $3,800.15. Plaintiff
argues the exhibit cited by the judge was only one of three
exhibits that documented her payment of college expenses for
Elanya. Because the trial judge provided no explanation for how
he arrived at the amount awarded or why the other sums plaintiff
asserts were documented were excluded, we cannot determine whether
her argument has merit.
Plaintiff also argues the trial judge overlooked exhibits
relating to her claim for Derek's college-related expenses. She
contends she submitted a claim, supported by documented expenses,
for $3,178.52. Although the judge initially listed this claim as
$3,167.68, her claim for reimbursement is later listed as
"$2,548.65." The only reference in the statement of reasons to
14 A-2039-14T3 the trial judge's disposition of this claim is: "Defendant accepts
liability for $1,115 sought for Derek's college related expenses."
Again, this is insufficient to permit appellate review.
The trial judge denied what he termed "non-college expenses"
for both Elanya and Derek, followed by the statement, "Plaintiff
should have sought and obtained the consent of the Defendant as
per the PSA and the 2005 Consent Order." The trial judge was
required to make findings of fact regarding which of plaintiff's
expenditures were appropriately considered "college costs and
expenses," and, thus, subject to reimbursement by defendant.4 The
October 2006 order defined the term "college costs and expenses"
in the PSA as "tuition, room and board or rent if living off
campus, books, school fees, travel to and from school for up to
four times per year." However, the trial judge merely stated a
series of dollar amounts without making the necessary preliminary
factual determinations of whether plaintiff's expenses fell inside
or outside the definition of "college costs and expenses." As a
result, we cannot determine whether he correctly excluded "non-
college expenses" for Elanya and Derek.
4 We note that plaintiff has not appealed the court's denial of her claim for automobile expenses for Elanya and Derek totaling $3,413.59.
15 A-2039-14T3 The trial judge also failed to explain how he apportioned the
college expense obligations between the parties. This issue is
also governed by the PSA, which states the parties shall "share
the expense of each child's college education in proportion to
their respective financial circumstances at the time such children
are in college." The term "financial circumstances" is defined
in the October 2006 order as "income, assets, expenses, and the
overall ability of each party to pay." Although crucial to
properly allocating the parties' obligations, the trial judge made
no factual determinations as to the parties' financial
circumstances at the time Elanya or Abigail were in college.
There was an order in place that determined the parties'
obligations for Derek's tuition. As noted, the October 15, 2014
order required plaintiff to pay $6,277.95 in tuition plus late
fees for Derek's tuition. The reasoning provided for this order
is:
Defendant has established that he has paid his portion of Derek's tuition as required of $17,016.38. Most recently Defendant paid $11,659.05 towards Derek's $17,937 tuition bill and the Plaintiff has failed to pay.
Although the April 2014 order established the percentages of
each party's responsibility, this reasoning is inadequate to
explain what proofs the judge relied upon to determine these
obligations.
16 A-2039-14T3 Such "naked conclusions" do not satisfy the Rule 1:7-4
requirement and are "a disservice to the litigants, the attorneys,
and the appellate court." Heinl, supra, 287 N.J. Super. at 347
(quoting Kenwood Assocs. v. Bd. of Adj. Englewood, 141 N.J. Super.
1, 4 (App. Div. 1976)); see also Curtis v. Finneran, 83 N.J. 563,
570 (1980). As a result of the failure to provide such
explanations, we are unable to determine the merit of plaintiff's
arguments. Therefore, the trial judge's determinations of credits
due and unmet obligations of the parties for Derek's and Elanya's
tuition and college expenses must be remanded for reconsideration
to enable the court to make the necessary findings of fact and
conclusions of law required by Rule 1:7-4. See Strahan, supra,
402 N.J. Super. at 310; Barnett & Herenchak, Inc. v. N.J. Dep't
of Transp., 276 N.J. Super. 465, 471 (App. Div. 1994).
Abigail's tuition
The trial judge's calculation that defendant was due an award
of $36,958.24 included his consideration of defendant's claim for
contribution toward Abigail's tuition. He stated,
Defendant has also established payment of $77,000 towards Abigail's tuition (D-2). Plaintiff therefore owes him $26,950.
Plaintiff argues the trial judge erred in determining she
owed money for Abigail's college tuition. She contends that her
father paid 100% of her obligation for Abigail's tuition. In the
17 A-2039-14T3 alternative, she states the percentage of the cost allocated to
her should be 18%, the percentage determined by the CPA in 2006.
To support her assertion that her tuition obligation was
fully satisfied, plaintiff cites exhibits that reflect her
father's voluntary assumption of her obligation for college
expenses and statement in August 2009 that he and defendant had
paid all of Abigail's college expenses. These exhibits relate to
her father's promises to her but fail to support her contention
the trial judge ignored proofs that established she had fulfilled
her obligation for Abigail's college expenses.
The trial judge's determination of plaintiff's obligation
suffers, however, from failures to identify the factual basis for
the award, what percentage of the expense was allocated to
plaintiff and the basis for allocating that percentage. Abigail
graduated in 2009, five years before the April 11, 2014 order
allocated responsibility for Derek's college expenses at 35% to
plaintiff and 65% to defendant. The trial judge did not explain
why this percentage was appropriate when, in 2006, the CPA
determined plaintiff should only be required to shoulder an 18%
obligation based on 2005 income.
Derek's bar mitzvah
Plaintiff further argues the trial judge made a mathematical
error in calculating defendant's obligation for Derek's bar
18 A-2039-14T3 mitzvah by using the 65%/35% split based upon the percentages used
in an April 11, 2014 order to allocate expenses for Derek's college
expenses. The exhibits reflect that the bar mitzvah occurred in
2005. Plaintiff contends the judge should have employed an 82%/18%
allocation, using the percentages determined by the CPA based on
the parties' 2005 income, resulting in an award of $5,361.57, a
sum $1,111.57 more than the amount in the judgment.
Plaintiff is correct that the court-appointed CPA determined
that the percentage of income for 2005 was eighty-two percent
(82%) for defendant and eighteen percent (18%) for plaintiff.
However, this apportionment was made specifically for the purpose
of allocating responsibility for unreimbursed medical expenses as
instructed in the March 2005 consent order and was also used for
the division of camp costs. It was not made for the purpose of
allocating the cost of Derek's bar mitzvah. Therefore, it is not
conclusive, as plaintiff suggests, that the correct apportionment
should have been an eighteen/eight-two percent (18%/82%) split.
However, it is a fair benchmark for the allocation of
responsibility for an expense incurred in 2005.
Although the judge did not explain why or how he determined
that plaintiff was entitled to a sixty-five percent (65%)
reimbursement from defendant, it appears he employed the
allocation set forth in the April 2014 order for Derek's college
19 A-2039-14T3 expenses. That allocation differs sharply from the determination
by the court-appointed CPA as to the parties' respective incomes
in 2005, the time when the bar mitzvah expenses were incurred. It
was incumbent upon the judge to explain why it was appropriate to
use a formula – devised for an entirely different purpose nine
years later – that doubled plaintiff's responsibility. Again, his
failure to support his determination with adequate findings of
facts or conclusions of law is counter to Rule 1:7-4, and this
court is "left to conjecture as to what the judge may have had in
mind." Salch, supra, 240 N.J. Super. at 443.
We therefore conclude the trial judge's determinations
regarding the parties' obligations for Derek's bar mitzvah
expenses must be reversed and the issue remanded for
reconsideration to enable the court to make the necessary findings
of facts or conclusions of law as required by Rule 1:7-4. Strahan,
supra, 402 N.J. Super. at 310; Barnett & Herenchak, Inc., supra,
276 N.J. Super. at 471.
Obligations defendant agreed to pay
Plaintiff next argues the trial judge failed to allocate a
share of certain expenses to defendant that he agreed to assume
during the trial, i.e., "the software [Derek] had to buy for his
school," "AP exams," and expenses for the "Scholastic Aptitude
Test."
20 A-2039-14T3 In his statement of reasons, the trial judge noted defendant
"accepts liability for $1,115 sought for Derek's college related
expenses. (P-10)" and then states "[n]on-college/non-child
support related expenses are denied for both Elanya and Derek."
Because there is no description of P-10 or other breakdown of the
expenses that were included in the award or disallowed, it is
impossible to discern whether the specific expenses that defendant
agreed to contribute to are included in the award.
Denial of claims to which defendant did not consent
Paragraph 15 of an order dated March 28, 2005, states:
The parties agree to consult with one another in advance on all issues related to the health, welfare and education of the children, including extracurricular activities and extraordinary expenses. Neither party may incur any such extraordinary expenses without the other's prior written consent (via e-mail). Neither party shall unreasonably withhold their consent. In the event the parties cannot agree as to a particular issue or activity, the parties shall submit same to the therapeutic mediator.
Plaintiff contends the trial judge failed to apply this
reasonableness standard to certain documented expenses and that,
based upon an entirely different order (August 20, 2001) and topic
(camp), she had the ultimate decision-making power. She contends
the trial judge gave defendant "veto" power over whether he should
contribute to "$9,730.87 for non-college/non-child support
21 A-2039-14T3 expenses for the two younger children." Plaintiff concedes that
mediation was not sought to resolve any dispute regarding these
expenses. We recognize that plaintiff is self-represented and
have attempted to decipher her argument. However, we are unable
to discern exactly what expenses plaintiff claims defendant
unreasonably withheld his consent to. As a result, she has failed
to show that the trial judge abused his discretion in denying her
the extent of the credit she claims she was entitled to receive.
Credit for overnight visitation not exercised
Plaintiff argues the trial judge failed to address the "issue
of adjusting 36% credit to Defendant for overnights for Elanya and
Derek." The trial judge's opinion states plaintiff "testified
that she was entitled to $16,737.60 because the Defendant received
credits against his child support obligation for overnights that
he did not exercise." Plaintiff argues the trial judge
misinterpreted her claim, thinking it related to Abigail when, in
fact, it related to the two younger children.
There is, however, no further discussion of this specific
claim in the statement of reasons. Although the trial judge
included the sentence, "[i]t is important to note that the
Plaintiff has failed to prove by a preponderance the balance of
her claims," that appears after a discussion of specific claims
for reimbursements. We cannot discern whether the trial judge
22 A-2039-14T3 decided a claim he acknowledged plaintiff had made or what reasons
existed for a decision.
Plaintiff argues she is entitled to the credit defendant
received toward his child support obligation for Elanya and Derek
for unexercised overnight parenting time. Plaintiff points to the
Child Support Guidelines Shared Payment Worksheet produced in
March 2005 (Guidelines Worksheet), which reflects that defendant's
child support obligation was calculated based on the fact defendant
would have Elanya and Derek overnight roughly thirty-six percent
(36%) of the year. Plaintiff claims defendant "ceased all
overnights in February 2013." According to plaintiff, because the
parenting time actually exercised by defendant was not reflected
in calculating his child support obligation between February 1,
2013 and June 1, 2015 (the date plaintiff claims Derek became
emancipated), she is entitled to $8,218.40 to reimburse her for
the credit defendant received during that time.
The trial judge denied plaintiff's claim for child support
resulting from unexercised parenting time on the basis that she
waived her claim because she did not raise it "well before the
trial." As discussed above, a parent cannot waive a claim to
child support, even due to the parent's own "negligence, purposeful
delay or obstinacy." L.V. v. R.S., 347 N.J. Super. 33, 40 (App.
Div. 2002); see also Colca v. Anson, 413 N.J. Super. 405, 421
23 A-2039-14T3 (App. Div. 2010). Therefore, as a matter of law, the trial judge's
determination that plaintiff waived her claim is unfounded.
Where there is a fair and equitable divorce settlement
agreement between the parties that governs the allocation of child
support obligations, courts are required to enforce such
agreements in adjudicating child support disputes between the
parties. See O.P. v. L.G.-P., 440 N.J. Super. 146, 156 (App. Div.
2015); see also Konzelman v. Konzelman, 158 N.J. 185, 194 (1999).
According to the PSA, when plaintiff had legal and physical
custody of all three children, defendant's child support
obligation was $750 per week. However, nothing in the PSA or in
any post-judgment order reflects an agreement to modify child
support obligations based upon unexercised parenting time.
In the absence of any agreement between the parties to modify
their child support obligations in the event either parent ceased
overnight parenting time with their children, plaintiff lacks
legal support for her claim. Therefore, we affirm the denial of
this claim, despite the erroneous ground that was the basis of the
trial judge's decision. See Do-Wop Corp. v. City of Rahway, 168
N.J. 191, 199 (2001) ("[A]ppeals are taken from orders and
judgments and not from opinions, oral decisions, informal written
decisions, or reasons given for the ultimate conclusion.").
24 A-2039-14T3 IV.
As a result of the consolidation of her appeals, plaintiff
filed a single brief that incorporated her arguments regarding the
orders entered in January, March and May 2015, which we now
address.
Plaintiff filed a motion for a stay of the judgment entered
October 15, 2014 pending appeal. Defendant filed a cross-motion
for enforcement of the October 2014 order, asking the court to
compel plaintiff to reimburse him $13,516.45, to compel plaintiff
to pay Derek's fall tuition and late fees ($6,277.95 + $150) and
his spring tuition, and to order probation to suspend his wage
garnishment to offset the credits due him.5
The trial judge denied plaintiff's motion and granted
defendant's motion by order entered on January 23, 2015, which
stated in pertinent part:
The Defendant's cross motion for enforcement of the provisions of the October 15, 2014 order is granted. The probation department is directed to halt the wage garnishment against the Defendant until such time as the sum of $19,944.40 is recouped. In the event Plaintiff makes direct payment to the Defendant, Defendant shall as [sic] advise probation and cooperate in the processing of the probation account.
5 Defendant's cross-motion is not included in the record provided to us. We rely upon the trial judge's description of the relief sought included in his written statement of reasons.
25 A-2039-14T3 The judge entered a Uniform Summary Support Order (USSO) that
directed the deduction of $205 per week "from support sums paid
by the defendant on behalf of Derek of $19,944.40." The USSO also
directed, "Order of Support is hereby TERMINATED effective
10/14/2014 as TO DEREK." Based upon the judge's description of
the relief sought by defendant, this was not requested. There is
no explanation provided in the written statement of reasons or on
the USSO for the termination of child support.
The trial judge entered another order, dated March 25, 2015,
which amended the January 2015 order, stating:
This Order will amend the Order dated 1/23/2015. Derek will be emancipated effective 10/14/2014 and the Child Support obligation is terminated. There is an additional overpayment of $4627.14 as a result of this emancipation . . . . Probation is to close its case.
Again, there is no statement of reasons given for the
termination of child support for Derek or the "additional
overpayment of $4627.14."
Plaintiff argues the trial judge erred in retroactively
emancipating Derek, effective October 14, 2014, and awarding
defendant $4,627.14 for overpaid child support. She points out
that, according to the PSA, Derek should have been considered
emancipated as of May 16, 2015, his expected date of graduation.
Thus, plaintiff argues "the amount of $4,627.14 should not be
26 A-2039-14T3 taken from Plaintiff or if already taken relief in this amount is
sought."
As defined in the PSA, emancipation could occur upon the
later of the child turning twenty-two or completing "four
continuous academic years of college education . . . provided that
the child takes no more than one year from graduation from high
school prior to entry into college." The record fails to show
that defendant ever sought to have Derek declared emancipated or
that emancipation was appropriate based on any circumstances in
the case. To the contrary, it appears that Derek was scheduled
to complete his college education in the spring of 2015.
Therefore, pursuant to the terms of the PSA, he would not be
emancipated as of October 2014.
Thus, the trial judge's determinations, emancipating Derek
and terminating child support, not only lack any reasonable
explanation, they are at odds with the relevant term of the PSA.
The orders emancipating Derek as of October 14, 2014 and
terminating child support are reversed.
The final order that is the subject of this appeal, dated May
21, 2015, was entered by a different judge on defendant's motion
27 A-2039-14T3 to enforce litigant's rights and plaintiff's cross-motion for a
stay of judgment pending appeal.6
The order stated, in pertinent part:
1. Plaintiff's request for a stay of the October 15, 2014 [order] is DENIED without prejudice;
2. Defendant's request for the issuance of an arrest warrant is DENIED without prejudice;
3. The Court shall modify the Court Order of October 15, 2014 to allow Plaintiff to pay the sum of $13,516.45 within six months of this Order. If Plaintiff fails to comply with the Court's Order, she may be subject to economic sanctions;
4. Any other request not mentioned above is DENIED without prejudice.
In light of our disposition of plaintiff's appeals from the
preceding orders, her appeal from the provisions of this order
that affect her is now moot.
In sum, we affirm the trial court's decisions: to deny
plaintiff credit for parenting time not exercised by defendant and
to deny plaintiff's claim based on expenses for which she asserted
defendant had unreasonably withheld his consent. We reverse the
trial court's orders emancipating Derek as of October 2014 and
terminating child support. As to the following issues, we reverse
6 Plaintiff also asked the court to require defendant to reimburse Derek the sum of $12,670.90 for the fall 2014 and spring 2015 college tuition fees.
28 A-2039-14T3 and remand for further proceedings consistent with this opinion
and for the judge to comply with Rule 1:7-4 as to each
determination:
1. the amount of credits, if any, due to plaintiff as a
result of Abigail's retroactive emancipation;
2. the amount of credits due and unmet obligations of the
parties for Derek's and Elanya's tuition and college
expenses;
3. the parties' respective obligations for Abigail's
tuition, including an identification of the factual
basis for the award, what percentage of the expense was
allocated to plaintiff and the basis for allocating that
percentage;
4. the determination of the appropriate allocation of
obligations for Derek's bar mitzvah expenses;
5. the determination of obligations defendant agreed to
pay.
Affirmed in part, reversed in part. The appeal of the May
2015 order is moot. We do not retain jurisdiction.
29 A-2039-14T3