KATHLEEN KELLY VS. ROLF-DIETER KRENZ (FM-07-0905-12, ESSEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-0901-19
KATHLEEN KELLY,
Plaintiff-Respondent,
v.
ROLF-DIETER KRENZ,
Defendant-Appellant.
Argued February 22, 2021 – Decided April 21, 2021
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FM-07-0905-12.
Karin Duchin Haber argued the cause for appellant
(Haber Silver Simpson & Russoniello, attorneys; Karin
Duchin Haber, of counsel; Jani Wase Vinick, on the
briefs).
Kathleen Kelly, respondent, argued the cause pro se.
PER CURIAM
After twenty years of marriage, the parties divorced in 2014. This appeal
arises out of the parties' dispute regarding the emancipation of their oldest son,
who has been attending college since August 2016 and is now twenty-three years
old. In a September 13, 2019 order, the Family Part judge denied defendant's
motion for emancipation and granted plaintiff counsel fees. After reviewing the
parties' agreement, we are satisfied the ruling regarding the son's emancipation
was correct although for different reasons than those posited by the court.
However, because more than eighteen months have elapsed between the
court's order and our review, and the son has now attended college for five years
without any realistic certainty of completing his coursework within a reasonable
period of time, we remand for further proceedings as directed. We also vacate
the award of counsel fees to plaintiff as unsupported by sufficient analysis and
reasons.
When the parties were divorced, a property settlement agreement (PSA)
was incorporated into the judgment of divorce. The PSA included the following
relevant provisions:
6. COLLEGE EDUCATION OF THE CHILDREN
6.1 In addition to all other payments required to be
made hereunder, the parties also agree to pay for the
undergraduate college, junior college, vocational or
trade school education of each child of the marriage,
with . . . [defendant] paying [sixty percent] and . . .
[plaintiff] paying [forty percent] of such expenses,
subject to the income floors set forth in Paragraphs 3.2
and 4.4, and provided neither party experiences a
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dramatic change in his or her financial circumstances.
Such payments shall include all necessary charges for
application fees, pre-admission standardized tests,
tuition, room, board, activity fees, lab fees, books,
computers and supplies, transportation at the beginning
and end of each semester and school breaks.
....
6.3 It is the anticipation of the parties that the children
will complete college in four years of study unless
additional time is academically required for the chosen
course of study or there is an illness, injury, disability
or other extenuating circumstances.
7. EMANCIPATION EVENT
7.1 With respect to a child, an emancipation event shall
occur or be deemed to have occurred upon the earliest
happening of any of the following:
A. Reaching the age of eighteen years, or graduation
from high school with subsequent full-time
employment, or completion of secondary school
without subsequent immediate attendance at college or
trade school and engaging in or having the ability to
engage in full time employment, upon and after the
attaining by the child of eighteen years of age, except
and provided that (1) engaging by the child in partial or
part-time employment shall not be deemed an
emancipation event; (2) engaging by the child in full
time employment during vacation and summer periods
shall not be deemed an emancipation event unless the
child has the ability to engage in full time employment,
and no other exception provided in this paragraph apply
simultaneously; and (3) if, during the course of such
full-time schooling, the child takes up to one year off
for employment or travel, the child shall not be deemed
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emancipated, but the support obligation shall be
suspended for the said period of time that the child is
not attending school.
B. The completion of undergraduate college education,
but in no event beyond the date on which the child
reaches age [twenty-three] unless completion of the
college education is delayed by injury, illness or
disability of the child[.]
....
G. Notwithstanding anything contained in
subparagraph A above, an emancipation event shall be
deemed deferred beyond the twenty-second birthday of
the child only if and so long as the child pursues college
education with reasonable diligence and on a normally
continuous basis. In no event shall emancipation be
delayed beyond the twenty-third birthday of the child
unless the delay is caused by injury, illness or disability
of the child.
[Emphasis added]
After graduating high school, the parties' son enrolled at Arizona State
University. In Fall 2016, the first semester of his freshman year, he registered
for five classes worth eleven credits. The son later withdrew from three classes
and received a 2.5 GPA for the remaining two courses. In Spring 2017, he
registered for four classes worth ten credits but subsequently withdrew from two
classes and received a 2.67 GPA for the other two courses. In Fall 2017, the son
enrolled in five classes worth thirteen credits but withdrew from one class,
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earning a 3.0 GPA for the semester. In Spring 2018, he took four classes worth
ten credits. He earned a 3.33 GPA, but the D he received in one course was not
counted toward his GPA. In Fall 2018, the son enrolled in five classes worth
thirteen credits and earned a 2.38 GPA for the semester. In Spring 2019, he took
four classes worth twelve credits, achieving a 1.83 GPA. After six semesters –
three years – the son had completed fifty credits and had a 2.54 GPA.
In June 2019, defendant filed a motion requesting the court emancipate
his son. At the time, the son was twenty-one years old. Defendant argued
emancipation was warranted under paragraph 7.1G of the PSA because the son
had not pursued his college education "with reasonable diligence and on a
normally continuous basis."
According to defendant's certification, if the son continued in the same
manner as his first three years of college, it would take him another three-and-
a-half years to obtain the 120 credits needed to graduate. Defendant also
highlighted additional facts regarding the son's academic performance: he had
only completed five classes needed for his major after six semesters; and if he
had not been permitted to withdraw from six classes needed for his major, his
GPA would have likely fallen below the 2.5 minimum requirement.
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Defendant also informed the court of the son's drug use and extracurricular
activities. According to defendant, prior to his college enrollment, the son
attended a wilderness program and therapeutic boarding school to address his
drug habit and drug use. Defendant further stated that the son regularly used
different forms of marijuana, had drugs shipped to defendant's home without his
knowledge or permission, and has left drug paraphernalia in plain view of his
younger brothers. Defendant also described the numerous amenities at the
luxury apartment building the son lived in while at college. According to
defendant, his son's friendship circle was comprised of young adults from
affluent families who use drugs; he took spring break excursions to Hawaii and
Florida; and had a preference for expensive designer clothing and accessories.
Plaintiff, in her certification opposing the motion and supporting her
cross-motion, asserted the son had a long history of mental health issues and had
been treated for Obsessive Compulsive Disorder (OCD) and anxiety. She
explained that her son started smoking marijuana to cope with his OCD and he
would get violent when frustrated.
Plaintiff stated after-school drug rehabilitation and therapy was
ineffective, so she enrolled him in a therapeutic program designed to help
troubled teens and then a therapeutic boarding school. Plaintiff credited these
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programs with helping the son graduate high school and get accepted into
college. Plaintiff blamed his academic struggles on his mental health issues and
his desire to enroll in more courses than he could handle.
According to plaintiff, after the filing of this motion, she apprised the
college of the son's OCD and other issues. In response, the school's Disability
Resource Center (DRC) sent a letter to the son, advising that, "based on the
information you have submitted" he was eligible for certain services including
requesting a reduced academic load. The letter stated: "Students with
disabilities that significantly limit their ability to manage a full-time course load
(12 or more credits) may be accommodated by receiving approval to take a
reduced course load each semester. Requests for this accommodation will be
considered on a semester-by-semester basis."
The DRC also sent a letter in July 2019 to the Registrar, recommending a
reduced course load of nine credits for the Fall 2019 semester for the son "who
[was] a qualified student with a disability." The letter stated: "This
recommended accommodation is determined by the assigned DRC disability
access consultant and based on qualifying disability documentation. This
accommodation will be evaluated and recommended on a semester by semester
basis."
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Plaintiff asserted defendant misinterpreted the relevant PSA provisions.
She referenced paragraphs 6.3 and 7.1B from the PSA, contending they were
limited by certain circumstances, including a child's disability. Plaintiff argued
because the PSA expressly contemplated deferment of emancipation in the event
of a disability, the son should not be deemed emancipated because he had not
completed college due to his disability.
In her cross-motion, plaintiff requested other forms of relief not pertinent
to this appeal, as well as counsel fees, contending defendant's motion to deem
their son emancipated was made in bad faith. According to plaintiff, in addition
to the fact that defendant had only paid for three years of college at the time he
filed his motion, he was also well aware of their son's disability.
In defendant's reply certification, he asserted that plaintiff wanted their
son to remain in college in Arizona because of their contentious relationship.
He stated that plaintiff and the son had a history of confrontation that had
resulted in the police forcefully removing him from her home and plaintiff
locking him out. He attached text and email exchanges from both plaintiff and
the son documenting their dislike for each other. In the messages, plaintiff
informed defendant she did not want their son to live with her and the son said
there was "absolutely no possibility of me staying in NJ." Defendant also noted
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plaintiff had been living with her boyfriend for several years and this was an
additional motivation for her to keep the son living in Arizona because he did
not get along with her boyfriend.
Defendant maintained the son's bad grades were due to his drug use and
not to any mental health issues. According to defendant, the son was sent to
therapeutic boarding school because he was using drugs regularly and failing
classes at his prep school and plaintiff could no longer deal with his drug use or
violent behavior. Defendant described instances where the son stole money and
credit cards from him, plaintiff, and his younger brothers to support his drug
habit. Defendant also stated the son had told him he was selling drugs while at
school.
Defendant questioned the university's recent decision to permit the son to
continue with a reduced course load. According to defendant, plaintiff's efforts
to prove the son is only capable of a reduced full-time course load are
disingenuous because she only pursued them once he moved to emancipate the
son. Defendant stated he was informed by the DRC that the son was not required
to produce information from a medical professional to be considered disabled
and receive accommodations. Defendant also noted this same individual
informed him she had never seen a Full-Time Enrollment Equivalency
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Recommendation Form issued on behalf of a student. Defendant attached his
insurance statements from June 14, 2018 through July 23, 2019 to demonstrate
that, despite plaintiff's representations regarding their son's mental health, there
was not a single charge for any therapist or psychiatric treatment. While
defendant recognized that seeking such accommodations would have been
appropriate when the son started college, after three years of poor academic
performance, defendant contended plaintiff only pursued this course of action
for the purpose of the litigation.
During oral argument in September 2019 on the parties' motions,
plaintiff's counsel made representations to the court that plaintiff had copied
defendant on the email correspondence she had with Arizona State University
regarding the son's alleged disability, and that a doctor had submitted medical
records to the college. Defense counsel responded that plaintiff had not included
any emails or medical records in her submissions to the court. She only provided
the two DRC letters.
When plaintiff's counsel offered to take testimony from his client about
the issue, the judge responded:
I'll take everything that you argue here for what it's
worth. . . . I am going to rely on the papers. I mean I'm
sure in all likelihood this issue isn't going to go away
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after today either. So if you want to submit those proofs
on the next application, you're free to do so. . . .
In an oral decision issued at the close of argument, the judge denied
defendant's application for the son's emancipation, stating:
[U]nfortunately, the [c]ourt has to determine th[e]
[emancipation] issue on the documents that are
presented before the [c]ourt. And while [the son]
clearly has struggled with his college education the
agreement doesn't require him to perform at any
particular level. It only requires that he be enrolled full
time at a college and he is enrolled at ASU.
The documents that have been submitted by . . . plaintiff
regarding his disability, while defendant says they're
hearsay, they do appear to be legitimate. I . . . don't
know if there's any proof that this is somehow
fabricated or fraudulent. And the agreement does talk
about a disability or an illness extending [the son's]
schooling.
Now, I don't know what ASU's criteria is to determine
that a student has a disability. But they have
determined that [the son] does qualify as a student with
a disability and he is, therefore, able to have a full time
equivalency enrollment as opposed to basing it purely
on the number of credits.
So, although[] he is taking fewer than twelve credits it
is the equivalent based upon his disability of a full time
enrollment.
So with respect to the terms of the agreement, not
withstanding the fact that it has been demonstrated
from the parties' submissions that [their son] may not
be the student who's always in the library studying as
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opposed to doing what he's doing[,] he does meet the
criteria of a full time enrolled student in a college. And,
therefore, there is no emancipation presented . . . .
....
So based upon that[,] . . . defendant's motion to deem
. . . [the son] as emancipated is denied. The [PSA]
appended to the final judgment defines the
circumstances under which the children of [the]
marriage are deemed emancipated.
....
Under the terms of the PSA an emancipating event has
not occurred. The child has attended college on a
continuous basis since Fall [] 2016. And currently has
a cumulative GPA of 2.54.
Plaintiff states the child suffers from [OCD] and
anxiety. Plaintiff has provided an undated letter from
Arizona State University [DRC] offering
accommodations including full time equivalency for
the child's illness or disabilities.
Plaintiff[] also[] offers a full time enrollment
equivalency recommendation form dated July 10[],
2019 recommending a reduced course load for the child
of [nine] hours for the Fall 2019 semester. The child is
currently [twenty-one] years of age and will be
attending ASU for the Fall semester with a reduced
course load of . . . only [nine] credits. The child is
attending school full time and on a continuous basis
with an accommodation for illness or disabilities and,
therefore, is not emancipated.
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The court also awarded plaintiff $5000 in counsel fees "in connection with
the cost of these applications. . . . [D]efendant is responsible for these counsel
fees because of his failure to adhere to previous court order[s]." The judge later
added that he found defendant's position "with respect to the application to
emancipate was not reasonable."
On appeal, defendant asserts the trial court erred in denying his
application to emancipate the son. He contends the court should have provided
the opportunity for discovery and a plenary hearing "to resolve the material
factual disputes relevant to the issues of emancipation and college contribution."
In addition, defendant challenges the award of attorney's fees to plaintiff as
unsupported by the evidential record. And, defendant states, that because the
Family Part judge made credibility determinations, the case should be assigned
to a different judge on remand.
We defer to family court fact findings "'when supported by adequate,
substantial, credible evidence.'" Fattore v. Fattore, 458 N.J. Super. 75, 83 (App.
Div. 2019) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). Where
there is "satisfactory evidentiary support for the trial court's findings . . . [we]
should not disturb the result." Llewelyn v. Shewchuk, 440 N.J. Super. 207, 213
(App. Div. 2015) (citing Beck v. Beck, 86 N.J. 480, 496 (1981)).
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Here, defendant seeks to enforce the "emancipation" provisions of the
parties' PSA. "Interpretation and construction of a contract is a matter of law
for the court subject to de novo review." Fastenberg v. Prudential Ins. Co. of
Am., 309 N.J. Super. 415, 420 (App. Div. 1998) (citing Bradford v. Kupper
Assocs., 283 N.J. Super. 556, 583 (App. Div. 1995)).
"Marital agreements . . . are approached with a predisposition in favor of
their validity and enforceability." Massar v. Massar, 279 N.J. Super. 89, 93
(App. Div. 1995) (citing Petersen v. Petersen, 85 N.J. 638, 642 (1981)). "The
basic contractual nature of matrimonial agreements has long been recognized."
Pacifico v. Pacifico, 190 N.J. 258, 265-66 (2007) (citing Harrington v.
Harrington, 281 N.J. Super. 39, 46 (App. Div. 1995)).
"The polestar of [contract] construction is the intention of the parties. . . ."
Atl. N. Airlines, Inc. v. Schwimmer, 12 N.J. 293, 301 (1953). "The starting
point in ascertaining that intent is the language of the contract." Commc'ns
Workers of Am., Local 1087 v. Monmouth Cnty. Bd. of Soc. Servs., 96 N.J.
442, 452 (1984) (citation omitted). Where there is ambiguity in the parties'
contract, a plenary hearing is necessary "to discern the intent of the parties at
the time the agreement was entered and to implement that intent." Quinn v.
Quinn, 225 N.J. 34, 45 (2016) (citing Pacifico, 190 N.J. at 267).
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Paragraph 7.1B of the PSA provides: "[A]n emancipation event shall
occur or be deemed to have occurred upon . . . [t]he completion of undergraduate
college education, but in no event beyond the date on which the child reaches
age [twenty-three] unless completion of the college education is delayed by
injury, illness or disability. . . ." Paragraph 7.1G provides:
Notwithstanding anything contained in [paragraph
7.1A] above, an emancipation event shall be deemed
deferred beyond the twenty-second birthday of the
child only if and so long as the child pursues college
education with reasonable diligence and on a normally
continuous basis. In no event shall emancipation be
delayed beyond the twenty-third birthday of the child
unless the delay is caused by the injury, illness or
disability of the child.
Read together, these paragraphs set forth the following requirements:
Emancipation occurs: at age twenty-two, unless the child pursues a college
education with reasonable diligence on a normally continuous basis; at college
graduation; or at age twenty-three, unless the completion of college studies was
delayed by injury, illness or disability. Therefore, the earliest date emancipation
may occur is when a child who has not pursued college with reasonable diligence
on a normally continuous basis turns twenty-two. Although it was certainly
arguable that the son had not pursued his studies with reasonable diligence or
on a normally continuous basis, he was only twenty-one years old when
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defendant filed his application. Therefore, there were no grounds for
emancipation at that time under the specific language of the PSA.
Defendant urges an interpretation of Paragraph 7.1G that allows him to
seek emancipation whenever a child fails to pursue college with reasonable
diligence and on a normally continuous basis. But this interpretation would
allow defendant to seek emancipation if these circumstances occurred in the
child's freshman year.
It is not uncommon for some students to begin college without reasonable
diligence and then get on track to graduate on time or shortly thereafter. Because
paragraph 7.1B extends the graduation emancipation event to age twenty-three,
it appears the parties recognized an allowance of additional time might be
necessary in the event a child did not finish college in four years. For these
reasons, the construction that a child attending college had to be at least twenty-
two-years old before emancipation could occur "appears to be in accord with
justice and common sense and the probable intention of the parties ."
Krosnowski v. Krosnowski, 22 N.J. 376, 386-87 (1956) (citations and quotation
marks omitted).
In denying defendant's application for emancipation, the trial court found
plaintiff had established the son had a disability sufficient to delay his
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emancipation. We disagree. On the scant record provided to the court – two
unsigned hearsay documents from the college – it was a misapplication of
discretion to determine, without a deeper factual inquiry and evidential
substantiation, that the son had a disability envisioned by the parties under the
PSA and to require the parties to pay all college-related expenses for an
indefinite period.
Nevertheless, because the PSA did not permit the emancipation of a child
prior to age twenty-two, we agree defendant's application was properly denied.
"A trial court judgment that reaches the proper conclusion must be affirmed even
if it is based on the wrong reasoning." Hayes v. Delamotte, 231 N.J. 373, 387
(2018) (quoting Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001)).
However, the son is now twenty-three years old. And, under the PSA, his
emancipation can only be deferred if the delay is caused by an injury, illness, or
disability. Plaintiff asserted before the Family Part and this court that the son
has been diagnosed with OCD, which she contends is a qualifying disability and
a sufficient condition to forestall emancipation and require defendant (and
herself) to continue footing the son's college tuition bills, housing, and all other
related expenses.
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During oral argument before this court, counsel and plaintiff represented
that the son expects to complete eighty-six college credits when the current
semester ends in May 2021 – after attending the university for five years. If he
continues to take only nine credits per semester, he will not graduate for another
three years.
Plaintiff did not present any records or documentation to the Family Court
to support her contention that the son is sufficiently disabled to defer his
emancipation. The Family Part judge acknowledged he did not know what the
DRC considered a disability. There was no medical expert who opined for the
court whether the son is unable to complete more than nine credits in a semester.
We disagree that the PSA was so clear on its face that the trial court could
determine as a matter of law that the parties' son was disabled to avoid
emancipation. An unsigned hearsay document from a college employee is not
sufficient to support a finding that the son is disabled as the parties intended
under the PSA. Indeed, there is no evidence that the son did not attain his high
school degree in the usual four years. Without any information, we cannot know
whether the son's abysmal prolonged college record is related to a mental health
or medical issue, or just a lack of desire or interest to pursue and complete a
college education.
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Therefore, we affirm the order denying emancipation. However, we
remand to the trial court for a plenary hearing to determine whether the son
should be emancipated retroactively effective as of his twenty-second birthday
or another subsequent date. As stated, the son cannot be deemed emancipated
earlier than his twenty-second birthday.
Because the Family Part judge made credibility determinations on the
original application, on remand, a different judge shall be assigned to handle the
case. We do so as a prophylactic measure without any criticism of the judge.
N.J. Div. of Youth & Fam. Servs. v. A.W., 103 N.J. 591, 617 (1986). The judge
should conference the case with the parties and counsel to attempt to achieve an
agreement in light of the time that has passed. This conference should take place
within thirty days of the date of this order.
Defendant may renew his request for all documentation provided to the
college to support plaintiff's request for the categorization of the son as
"disabled" and for a diminution of required credits. As the DRC letters advised,
a student's status would be reviewed each semester; plaintiff must produce all
of the information she provided to the school for each subsequent semester as
well. Of course, it is within the court's discretion to order the exchange of any
other documents or to order mental health or physical examinations if
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appropriate. Any hearing should be scheduled and completed before July 15,
2021 so the parties and their son will know his status before the fall semester.
As stated, the trial court awarded plaintiff $5000 in counsel fees at the
close of its oral decision. It is unclear on what basis the award was made. In
addition, the court failed to analyze the required statutory factors and did not
proffer any reason for its conclusion that defendant's argument regarding
emancipation was unreasonable. Therefore, we reverse the award of fees and
instruct the court on remand to consider the request anew, along with any
applications concerning appellate fees. See R. 2:11-4.
"In awarding attorney's fees, N.J.S.A. 2A:34-23 requires a court 'to
consider the factors set forth in the court rule on counsel fees, the financial
circumstances of the parties, and the good or bad faith of either party.'" Mani
v. Mani, 183 N.J. 70, 94-94 (2005). Rule 5:3-5(c) sets forth nine factors for
courts to consider when determining whether to award attorney fees in a family
action. "In considering an award of counsel fees, the judge must comply with
[Rule] 1:7-4(a) and clearly set forth reasons for the exercise of discretion."
Scullion v. State Farm Ins. Co., 345 N.J. Super. 431, 439 (App. Div. 2001)
(citing Brewster v. Keystone Ins. Co., 238 N.J. Super. 580, 587 (App. Div.
1990)).
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Initially, the trial court stated it was awarding plaintiff fees because
defendant had neither paid the previously-ordered college costs nor the current
college costs that had since come due. However, defendant's counsel advised
the court that plaintiff's cross-motion did not mention unpaid college expenses
and defendant had documented his compliance with the required payments in
his reply papers.
Plaintiff conceded that her motion concerned defendant's alleged non-
payment of alimony arrears and failure to comply with the life insurance
beneficiary designation required by the PSA. But she told the court it could
assess fees because defendant was unsuccessful in his motion for emancipation.
The court responded: "The . . . basis for my awarding of counsel fees is[] based
upon the representation that [defendant] was in arrears[,] which was not
challenged, and that the position . . . of the party with respect to the application
to emancipate was not reasonable." However, defendant had rebutted plaintiff's
arguments in his reply certification supported with documentary evidence.
On remand, after considering the son's emancipation, the Family Part
judge must also consider plaintiff's application for counsel fees. In doing so,
the judge will consider the factors under N.J.S.A. 2A:34-23 and Rule 5:3-5(c)
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and set forth its reasons for any award or its denial as required under Rule 1:7-
4(a).
Affirmed in part, reversed in part, and remanded to the trial court for
further proceedings in accordance with this opinion. We do not retain
jurisdiction.
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