NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 limi ted. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5465-17T3
NEIL REDNOR,
Plaintiff-Respondent,
v.
CHRISTINE REDNOR,
Defendant-Appellant. ___________________________
Argued January 7, 2020 – Decided April 2, 2020
Before Judges Yannotti, Hoffman and Currier.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM-09-0985-18.
Sadaf Trimarchi, argued the cause for appellant.
Carleen M. Steward argued the cause for respondent (Fruhschein & Steward, LLC, attorneys; Carleen M. Steward, on the brief).
PER CURIAM Defendant appeals from an order entered by the Family Part on May 9,
2018, which among other things, denied her motion to set aside the parties'
marital settlement agreement (MSA); in addition, she appeals from a July 16,
2018 order denying reconsideration. For the reasons that follow, we affirm in
part, and reverse in part, and remand for further proceedings.
I.
The parties married in April 1983. They have two adult daughters,
Martha,1 born in 1983, and Melinda, born in 1986. In September 2010, plaintiff
filed a complaint for divorce, which he voluntarily dismissed in December 2011.
Six days later, on December 22, 2011, plaintiff filed a complaint seeking a
divorce from bed and board, pursuant to N.J.S.A. 2A:34-3.
In connection with the divorce proceedings, the court entered a September
6, 2012 consent case management order signed by the parties' attorneys. The
order stated, "The children are emancipated"; however, the order also stated,
"Defendant alleges that the children's physical and emotional conditions
requires continued direct support to the children." At that time, Martha was
twenty-eight years old and Melinda was twenty-six years old.
1 We use pseudonyms to maintain the confidentiality of the parties' children. R. 1:38-3(d)(1)(3). A-5465-17T3 2 Three months later, in December 2012, Melinda suffered a subarachnoid
brain hemorrhage, requiring a sub-occipital craniectomy and placement on a
ventilator; in the following days, she had a tracheotomy, a cranial shunt
implanted for hydrocephalus, and a feeding tube implanted. Now thirty-three
years old, Melinda remains disabled. She has lived with defendant since her
release from the hospital following her brain injury.
In June 2013, approximately six months after Melinda's injury, the parties
executed their MSA. Regarding support, the MSA contains a section entitled
ALIMONY, which required plaintiff to "pay [defendant] $4000 per month" until
the death of either party or defendant's remarriage. In the same provision,
plaintiff waived "any right or claim to alimony or other form of spousal support
from WIFE[,]" and agreed that his waiver would be "non-modifiable regardless
of future circumstances," notwithstanding "the provisions of Lepis v. Lepis, 83
N.J. 139 (1980)." Significantly, this anti-Lepis clause2 applied only to plaintiff's
waiver of alimony and support. The MSA clearly stated that defendant
2 An anti-Lepis clause is a provision wherein parties waive modification of alimony based on a change of circumstances. See Morris v. Morris, 263 N.J. Super. 237, 245-46 (App. Div. 1993). Such a clause must clearly state that the change-of-circumstances standard does not apply, or detail how the parties intend to handle modification of alimony requests. Id. at 240.
A-5465-17T3 3 maintained her right to seek a modification of alimony in the event of a change
in circumstances.
While the MSA did not provide for the payment of child support for
Melinda, it did obligate plaintiff to "pay Melinda's health insurance premiums
until she reaches the age of [thirty]." In addition, the MSA provided that
defendant "shall be entitled to claim [Melinda] as a dependency exemption . . .
in odd years and [plaintiff] shall be entitled to claim [Melinda] as a dependency
exemption . . . in even years." The MSA did not otherwise address the issue of
either child's emancipation nor did it acknowledge Melinda's disabled status.
On June 27, 2013, the court held a hearing to consider plaintiff's complaint
seeking a judgment of divorce from bed and board. At that hearing, plaintiff
testified that Melinda had been emancipated by the time of her injury. While
defendant did not directly dispute plaintiff's contention, she testified that
Melinda is "not now emancipated" and explained she was taking care of Melinda
"[twenty-four] hours a day . . . [seven] days a week." The court found both
parties voluntarily entered into the MSA and granted plaintiff a final judgment
of divorce from bed and board, incorporating the MSA. On December 7, 2016,
the court granted plaintiff's motion to convert the judgment into an absolute
divorce.
A-5465-17T3 4 In March 2018, defendant filed the motion under review, seeking "child
support, enforcement, and other relief." In support of her request to set aside
the MSA, defendant claimed she signed the agreement under duress and based
on misrepresentations.
Defendant's attorney 3 apparently misinterpreted the anti-Lepis clause as
applying to both parties; as a result, defendant's initial motion did not include a
request to increase her alimony. Upon realizing this error during oral argument,
defendant's attorney asked the court to consider defendant's motion as a request
for increased alimony. The motion judge denied the request, citing defendant's
failure "to attach to her motion her prior case information statement from the
time of the divorce and her current case information statement, as required by
. . . Rule 5:5-4(a)(4)."
Defendant's motion also requested the court to determine that Melinda "be
deemed not emancipated by virtue of [her] permanent disability," and sought
reimbursement from plaintiff "for his share of out-of-pocket expenses incurred
by [defendant] for [Melinda]" since 2013. In addition, defendant sought
ongoing support for Melinda, including housing and the establishment of a
3 The attorney representing defendant on this appeal did not represent her at the time of the motions under review. A-5465-17T3 5 special needs trust for her. In support of this request, defendant submitted a
certification from Dr. Neil Jasey, the Director of Brain Injury Services at Kessler
Institute for Rehabilitation, who served as Melinda's treating physician since
January 2013. According to Dr. Jasey, Melinda remains disabled from her brain
hemorrhage and continues to suffer "deficits in cognition and mobility"; she
requires someone to prepare her food and to guide her when using a walker.
Regarding the future, Dr. Jasey stated, "It is very unlikely that [Melinda] will be
able to work or support herself given her physical limitations."
Defendant further requested the court to direct plaintiff to reimburse all
funds plaintiff withdrew from Melinda's bank accounts without her consent.
Finally, defendant requested the court to award her "counsel fees . . . under
[Rule] 4:42-9(a)."
The motion judge denied all of defendant's requests for relief. In her oral
decision, the judge ruled defendant's motion to set aside the MSA based on fraud
was not timely under Rule 4:50-1, nor supported by clear and convincing
evidence. The judge found defendant had not shown any fraud in connection
with the agreement, or that she agreed to the MSA under duress.
The judge also rejected defendant's claim for reimbursement of certain
sums that plaintiff allegedly withdrew from Melinda's accounts between January
A-5465-17T3 6 2013 and October 2013. The judge found the claim was barred because some of
the withdrawals occurred prior to the date of the MSA. Regarding defendant's
request for reimbursement for plaintiff's "share of out-of-pocket expenses" she
incurred for Melinda since 2013, the judge ruled that defendant could not come
back to court five years later and seek to have plaintiff pay Melinda's expenses
"on an ongoing basis from 2013 forward."
The judge also rejected defendant's application for support for Melinda.
The judge noted that Melinda suffered her injury in December 2012,
approximately six months before the parties agreed to the MSA. The judge
found that the parties knew of Melinda's condition when they entered into the
MSA, and further noted Melinda previously had been emancipated, citing the
September 6, 2012 case management order.
The judge found the parties essentially had addressed support for Melinda
in the alimony provision of the MSA. The judge explained,
[T]he record is clear that when devising the $4000 per month alimony payment [the MSA] was factoring in defendant's cost to have certain living and transportation accommodations or expenses in defendant's column that included [Melinda] solely because [Melinda] was living with the defendant[,] and if [Melinda] needed certain vehicle accommodations and housing accommodations, it was defendant's vehicle or house that had those accommodations and
A-5465-17T3 7 therefore those were defendant's expenses that were factored when determining the alimony obligation.
Notwithstanding her acknowledgment that the amount of alimony in the MSA
factored in the cost for certain living and transportation costs for Melinda, the
judge found the MSA precluded defendant from asserting any claim for
Melinda's support. The judge ruled that since Melinda was emancipated by the
time the parties signed their MSA, if the parties had intended to include child
support for her, it should have been expressly stated in the MSA. Because the
judge interpreted the MSA as not containing any separate provision for
Melinda's support, the judge concluded she could not grant any form of financial
relief to defendant, rejecting defendant's argument that N.J.S.A. 2A:17-56.67(e)
provides an alternative basis for ordering plaintiff to pay some other form of
"financial maintenance" for Melinda. Defendant then filed a motion for
reconsideration, which the court denied.
This appeal followed. On appeal, defendant contends the motion judge
erred in failing to: 1) set aside the parties' MSA; 2) find Melinda unemancipated;
3) find Melinda eligible to receive "financial maintenance" under N.J.S.A.
2A:17-56.67(e); 4) order plaintiff to reimburse unauthorized withdrawals made
from Melinda's bank account; 5) conduct a plenary hearing; and 6) award
attorney's fees.
A-5465-17T3 8 II.
Our review of the trial court's fact-finding is limited. "The general rule is
that findings by the trial court are binding on appeal when supported by
adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-
12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and
expertise in family matters, appellate courts should accord deference to family
court factfinding." Id. at 413. "Accordingly, when a reviewing court concludes
there is satisfactory evidentiary support for the trial court's findings, 'its task is
complete and it should not disturb the result, even though it has the feeling it
might have reached a different conclusion were it the trial tribunal.'" Llewelyn
v. Shewchuk, 440 N.J. Super. 207, 213-14 (App. Div. 2015) (quoting Beck v.
Beck, 86 N.J. 480, 496 (1981)).
"A trial court's interpretation of the law and the legal consequences that
flow from established facts are not entitled to any special deference."
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
"A trial court's legal conclusions, and the application of those conclusions to the
facts, are subject to our plenary review." Spangenberg v. Kolakowski, 442 N.J.
Super. 529, 535 (App. Div. 2015) (quoting Reese v. Weis, 430 N.J. Super. 552,
568 (App. Div. 2013)). "To the extent that the trial court's decision constitutes
A-5465-17T3 9 a legal determination, we review it de novo." D'Agostino v. Maldonado, 216
N.J. 168, 182 (2013).
A. Requests to Vacate MSA and for Retroactive Reimbursement
To vacate a judgment based on fraud, a party must demonstrate by clear
and convincing evidence that the conduct was willfully false, material to the
issue, and that the falsity could not have been discovered by reasonable
diligence. See Shammas v. Shammas, 9 N.J. 321, 330 (1952); Pavlicka v.
Pavlicka, 84 N.J. Super. 357, 366 (App. Div. 1964). Moreover, a movant is
entitled to a plenary hearing only after clearly demonstrating the existence of a
genuine issue of material fact entitling the party to relief. Lepis, 83 N.J. at 159;
Eaton v. Grau, 368 N.J. Super. 215, 222 (App. Div. 2004).
In support of the motion under review, defendant alleged the MSA "was a
fraud. . . . secured in bad faith." Rule 4:50-1(c) expressly governs allegations
of "misrepresentation" and "fraud," notwithstanding defendant's attempt to
avoid the one-year time bar on such claims by stating she "sought to vacate the
MSA under R. 4:50-1(e) and (f)." Rule 4:50-2 requires claims under Rule 4:50-
1(c) to be brought within one year of the entry of judgment. Because the
absolute judgment of divorce was entered in December 2016, and defendant
filed her motion in March 2018, the judge correctly rejected her request to set
A-5465-17T3 10 aside the MSA based on alleged fraud as untimely filed. The judge also correctly
concluded defendant failed to support her claim of fraud with substantial
credible evidence. We further conclude the judge correctly rejected defendant's
request for reimbursement for expenses incurred relating to her care of Melinda
dating back to 2013. N.J.S.A. 2A:17-56.23a clearly bars retroactive
modification of child support.
B. Defendant's Request for Prospective Support for Melinda
When a party to a comprehensive negotiated property settlement
agreement seeks to modify any support obligation, that party must meet the
threshold standard of changed circumstances. Lepis, 83 N.J. at 146-48.
"Changed circumstances are not confined to events unknown or unanticipated at
the time of the agreement." J.B. v. W.B., 215 N.J. 305, 327 (2013), citing Dolce
v. Dolce, 383 N.J. Super. 11, 19 (App. Div. 2006).
Emancipation
A child's emancipation is "the conclusion of the fundamental dependent
relationship between parent and child . . . [,]" Dolce, 383 N.J. Super. at 17, and
is "the act by which a parent relinquishes the right to custody and is relieved of
the duty to support a child." Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). The
determination of whether a child is emancipated is fact sensitive. Ibid.
A-5465-17T3 11 Generally, the question of emancipation hinges upon whether the children, have
moved "beyond the sphere of influence" of their parents and have the ability and
responsibility to support themselves as adults. Filippone v. Lee, 304 N.J. Super.
301, 308 (App. Div. 1997) (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598
(Ch. Div. 1995)).
Emancipation is that point at which "the parent relinquishes the right to
custody and is relieved of the burden of support, and the child is no longer
entitled to support." Filippone, 304 N.J. Super. at 308. Although our law
presumes a child is emancipated upon attaining majority, parents can bind
themselves "by consensual agreement, voluntarily and knowingly negotiated, to
support a child past majority, and such agreement is enforceable if fair and
equitable." Dolce, 383 N.J. Super. at 18. When parents do so, "the parental
obligation is not measured by legal duties otherwise imposed, but rather founded
upon contractual and equitable principles." Ibid.
In an August 30, 2018 written opinion amplifying her prior rulings, the
motion judge provided the following explanation for denying defendant's
request that Melinda "be deemed not emancipated" by virtue of her permanent
disability: "Subsequent to Melinda becoming injured, the [c]ourt record is silent
of either party advising the [c]ourt that [Melinda] was no longer 'emancipated'
A-5465-17T3 12 as stated in the September 6, 2012 consent [c]ase [m]anagement [o]rder."
However, contrary to this finding and as previously noted, defendant confirmed
on June 27, 2013 that Melinda is "not now emancipated" and "is unable to care
for herself." Defendant told the court she was taking care of Melinda "[twenty-
four] hours a day . . . [seven] days a week."
We conclude the judge erred by ruling that Melinda was emancipated
solely based on one sentence in the September 6, 2012 case management order,
especially where the order contained language disputing emancipation. In the
face of conflicting evidence regarding whether Melinda was emancipated at the
time of the September 6, 2012 case management order, and the compelling
evidence of Melinda's disabled status when the parties signed the MSA, we
conclude defendant's request to deem Melinda "not emancipated" warranted a
plenary hearing. The judge failed to recognize that material facts remained in
dispute and that evidence beyond the motion papers was necessary for proper
resolution of the matter, that could not be determined without a plenary hearing.
Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div. 1982).
N.J.S.A. 2A:17-56.67
On January 19, 2016, the Legislature enacted a new statute regarding
termination of a parent's obligation to pay child support, N.J.S.A. 2A:17-56.67,
A-5465-17T3 13 which formally went into effect on February 1, 2017. Regarding child support
for a child who turns twenty-three years of age, the new statute provided, in
pertinent part:
a. Unless otherwise provided in a court order or judgment, the obligation to pay child support shall terminate by operation of law without order by the court on the date that a child marries, dies, or enters the military service. In addition, a child support obligation shall terminate by operation of law without order by the court when a child reaches [nineteen] years of age unless:
(1) another age for the termination of the obligation to pay child support, which shall not extend beyond the date the child reaches [twenty-three] years of age, is specified in a court order;
Notwithstanding this language precluding child support obligations from
extending beyond a child's age of twenty-two, in the concluding paragraph of
the statute, the Legislature made clear it did not intend to preclude disabled
children beyond the age of twenty-three from seeking support from their parents.
Subparagraph (e) provides, in relevant part, that nothing in this section shall be
construed to:
(1) prevent a child who is beyond [twenty-three] years of age from seeking a court order requiring the payment of other forms of financial maintenance or reimbursement from a parent as authorized by law to the extent that such financial maintenance or reimbursement is not payable or enforceable as child
A-5465-17T3 14 support as defined in section 3 of P.L.1998, c.1 (C.2A:17-56.52); or
(2) prevent the court, upon application of a parent or child, from converting, due to exceptional circumstances including, but not limited to, a mental or physical disability, a child support obligation to another form of financial maintenance for a child who has reached the age of [twenty-three].
The language of the statute reflects the intent of the Legislature that a
parent will not pay "child support" to the other parent for a child who is [twenty-
three] years or older. The Legislature, however, left the door open, in
exceptional circumstances, for the court to convert a child support obligation to
some other form of "financial maintenance" for such child.
While the parties' MSA did not require plaintiff to make monetary child
support payments for Melinda, it did require him to support her by paying
"Melinda's health insurance premiums until she reaches the age of [thirty]." The
MSA further provided the parties would alternate years in which they would
claim Melinda as a dependent. 4 Notwithstanding these provisions evidencing
plaintiff's support of Melinda and her dependence upon both parents, the motion
judge rejected defendant's request to utilize N.J.S.A. 2A:17-56.67 as a basis for
4 To claim Melinda as a dependent, plaintiff needed to provide over one-half of Melinda's support. See The Internal Revenue Code, 26 U.S.C. § 152(a)(1). A-5465-17T3 15 requiring plaintiff to make payments for Melinda's support. The judge reasoned,
"Since [Melinda] was previously emancipated by the parties in connection with
their underlying divorce and since [Melinda] did not sustain her disability prior
to reaching the age of [nineteen], there is no relief available to defendant under
. . . N.J.S.A. 2A:17-56.67."
We conclude the motion judge mistakenly construed N.J.S.A. 2A:17-
56.67 as requiring a weekly child support obligation to trigger its application.
We discern no basis for imposing such a condition. The judge also gave undue
weight to the September 6, 2012 case management order, which contained
inconsistent provisions, declaring the children "emancipated" while confirming
defendant's contention "that the children's physical and emotional conditions
requires continued direct support." As noted, the MSA inexplicably did not
confirm the emancipation of either child, nor did it acknowledge or address
Melinda's disabled status, except to provide for the payment of her health
insurance and alternate her dependence exemption.
"[N]othing in the law, and no principle of public policy prevents a parent
from freely undertaking to support a child beyond the presumptive legal limits
of parental responsibility." Dolce, 383 N.J. Super. at 18. Here, plaintiff agreed
"to pay Melinda's health insurance premiums until she reaches the age of
A-5465-17T3 16 [thirty]." It appears the motion judge interpreted the MSA as barring defendant
from seeking additional support for Melinda. We reject the conclusion that
defendant could contract away Melinda's right to seek additional support from
her father.
"The purpose of child support is to benefit children, not to protect or
support either parent. Our courts have repeatedly recognized that the right to
child support belongs to the child, not the custodial parent," J.S. v. L.S., 389
N.J. Super. 200, 205 (App. Div. 2006), and "may not be waived by a custodial
parent . . ." Gotlib v. Gotlib, 399 N.J. Super. 295, 305 (App. Div. 2008) (quoting
L.V. v. R.S., 347 N.J. Super. 33, 41 (App. Div. 2002)). As such, "the parental
duty to support a child may not be waived or terminated by a property settlement
agreement." Patetta v. Patetta, 358 N.J. Super. 90, 95 (App. Div. 2003); see also
J.B., 215 N.J. 329 ("reemphasiz[ing]" that the right to child support belongs to
the child); Martinetti v. Hickman, 261 N.J. Super. 508 (App. Div. 1993) (finding
the right to child support was not barred by a property settlement agreement
providing for the termination of support when the child turned eighteen).
The MSA was not dispositive of plaintiff's child support obligation
because the right to child support belonged to Melinda and not defendant. J.S.,
389 N.J. Super. at 205. Contrary to the judge's ruling, the MSA could not
A-5465-17T3 17 deprive Melinda of a right to support to which she may otherwise have been
entitled. Patetta, 358 N.J. Super. at 95-96. Like with the emancipation issue,
the judge failed to recognize that material facts remained in dispute, requiring a
plenary hearing. Fusco, 186 N.J. Super. at 329.
C. Request for Reimbursement of Unauthorized Withdrawals
We also conclude the motion judge erred by rejecting defendant's claim
for reimbursement of monies plaintiff withdrew from Melinda's accounts from
January 2013 to October 2013. The parties agreed to the MSA in June 2013.
Defendant's signing of the MSA in June 2013 could not serve to waive her right
to contest unauthorized withdrawals made after the signing of the MSA. In
addition, defendant's signing of the MSA would preclude her from challenging
earlier unauthorized withdrawals from the account only if the court concludes
that she knew, or should have known, of the earlier withdrawals when she signed
the MSA. We conclude this issue also requires a plenary hearing to determine
if plaintiff made unauthorized withdrawals from Melinda's accounts after the
date of the MSA.
We therefore vacate that portion of the motion court's order that denied
defendant's request for support for Melinda, based upon her being deemed not
emancipated, as well as that portion of the court's order that denied defendant's
A-5465-17T3 18 request for "financial maintenance," under N.J.S.A. 2A:17-56.67. We also
vacate the motion court's denial of defendant's request to compel plaintiff to
reimburse Melinda's account for unauthorized withdrawals. We remand this
matter for a plenary hearing to address these issues. Since the motion judge's
decision to deny defendant's request for attorney's fees was based in significant
part upon the judge's determination that defendant's requests all lacked merit,
we also vacate that ruling and remand that issue for further consideration,
following the outcome of the plenary hearing.
Before proceeding on remand, the court should consider whether this
matter warrants the appointment of a guardian ad litem to assist the court in
addressing the issues presented. See J.B., 215 N.J. at 332-33. We acknowledge,
of course, the decision to appoint a guardian ad litem is reposed in the discretion
of the trial court. Id. at 333.
Affirmed in part, and vacated and remanded, in part, to the motion court
for further proceedings in conformance with this opinion. We do not retain
jurisdiction.
A-5465-17T3 19