LORI B. LICHTER VS. BRAD E. LICHTERÂ (FM-13-136-93, MONMOUTH COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-2192-15T2
LORI B. LICHTER,
Plaintiff-Appellant,
v.
BRAD E. LICHTER,
Defendant-Respondent.
____________________________
Argued May 4, 2017 – Decided June 23, 2017
Before Judges O'Connor and Whipple.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth
County, Docket No. FM-13-136-93.
John J. Hopkins, III argued the cause for
appellant.
Richard J. Kaplow argued the cause for
respondent.
PER CURIAM
Plaintiff appeals from an October 26, 2015 order denying her
motion for reconsideration of an August 11, 2015 order, which
emancipated the parties' daughter. We affirm.
Plaintiff and defendant divorced on October 26, 1993,
pursuant to a final judgment of divorce. The parties executed a
property settlement and support agreement, which provided that
plaintiff and defendant would have joint legal custody, however,
plaintiff would have primary residential custody of the couple's
son and daughter. Plaintiff was to receive $630 twice per month
in child support for the children, who at the time were four and
one. Both parties agreed to contribute to college expenses, but
the precise amount of each parties' share would "abide the event."
In 2007, defendant's child support was modified to $150 per week.
We note at the outset the limited record before us. We do
not have notices of motion, nor certifications or affidavits
submitted by either party in support of the August 11, 2015 motion
for emancipation and other relief. We rely upon and discern the
facts as recited in the August 11, 2015 opinion and order of the
Family Part, as well as the transcript of the motion for
reconsideration.
Following the daughter's college graduation, defendant moved
for emancipation and to terminate child support, effective April
30, 2015, recalculate child support for his son, and for counsel
fees and costs. At the time of the application, defendant asserted
his daughter was twenty-three years old, worked part-time, and
supported herself. Plaintiff moved to deny defendant's request
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to emancipate, sought an increase in child support for the parties'
son, asked for the matter to be referred to probation for
recalculation of child support, and for counsel fees and costs.
Plaintiff argued her daughter would attend Monmouth University
full-time in the fall of 2015, would be involved in an intensive
internship program, and would not be able to earn an income during
that time. Plaintiff requested defendant pay for some school
expenses, including, but not limited to, $32,000 in taxes
attributed to the Monmouth tuition benefit and some book expenses.1
Plaintiff also requested an increase in child support for the
parties' son, whose Supplemental Security Income would be reduced
to $420.25 per month in June 2015. Defendant responded the
parties' agreement did not contemplate contribution to graduate
school.
On August 11, 2015, the Family Part judge granted defendant's
motion to emancipate the daughter and terminate child support
payments as to her. The court reserved decision as to the
recalculation of child support in order for plaintiff to complete
1
Plaintiff is an employee of Monmouth University, and as such,
her daughter attended the undergraduate program without tuition
charges. The $32,000 tuition was an employment benefit of
plaintiff. However, plaintiff asserts her daughter's post-
graduate tuition was included in plaintiff's salary, substantially
increasing her associated tax withholding, thus diminishing
plaintiff's weekly income.
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a case information statement (CIS). The Family Part judge found
it unclear whether the daughter was "beyond the sphere of parental
influence" but because she is over eighteen, there is a rebuttable
presumption of emancipation at eighteen which plaintiff had not
overcome. Counsel fees were denied.
Plaintiff filed an untimely motion for reconsideration of the
August 11, 2015 emancipation order, arguing defendant should be
required to contribute to the daughter's graduate school expenses
pursuant to their property settlement and support agreement to
contribute to college.2 Oral argument was held on October 16,
2015, and on October 26, the court denied plaintiff's motion,
finding plaintiff had not articulated a basis to reconsider the
order of emancipation, concluding the terms of the parties'
agreement extended only to college costs, and noting plaintiff's
motion was untimely. This appeal followed.
Plaintiff's notice of appeal and CIS identify only the October
26, 2015 denial of the motion for reconsideration for our review;
however, her brief addresses the August 11, 2015 order granting
defendant's motion to emancipate. Rule 2:5-1(f)(3)(A) states,
"the notice of appeal . . . shall designate the judgment, decision,
action or rule, or part thereof appealed from." "[O]nly the
2
We have not been provided the notice of motion for
reconsideration.
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judgments or orders or parts thereof designated in the notice of
appeal which are subject to the appeal process and review."
Pressler, Current N.J. Court Rules, cmt. 6 on R. 2:5-1(f) (2017).
We may consider an order not identified in the notice of appeal
where "the basis for the motion judge's ruling on [a first order
and a later order are] the same. In such cases, an appeal [from
the later order] may be sufficient for an appellate review of the
[earlier order], particularly where those issues are raised in the
CIS," Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super.
455, 461 (App. Div.), certif. denied, 174 N.J. 544 (2002), by
"clearly indicat[ing]" the earlier order is "one of the primary
issues presented by the appeal." Synnex Corp. v. ADT Sec. Servs.,
Inc., 394 N.J. Super. 577, 588 (App. Div. 2007). Here, plaintiff
has not provided a record sufficient to address the August 11,
2015 order; therefore, we only address plaintiff's appeal of the
October 26, 2015 motion for reconsideration.
On appeal plaintiff argues the court erred by emancipating
the parties' daughter and should have required defendant to
contribute to graduate school expenses.
This court's review of a trial court's findings are limited,
and "findings by the trial court are binding on appeal when
supported by adequate, substantial, [and] credible evidence."
Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms
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Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)).
"Because of the family courts' special jurisdiction and expertise
in family matters, appellate courts should accord deference to
family court fact[-]finding." Id. at 413. Additionally, we will
not disturb a trial court's reconsideration decision unless there
has been a clear abuse of discretion. Fusco, supra, 349 N.J.
Super. at 462.
After a child reaches the age of eighteen, there is a
rebuttable presumption of emancipation. Filippone v. Lee, 304
N.J. Super. 301, 308 (App. Div. 1997). A child is emancipated
"when the fundamental dependent relationship between parent and
child is concluded, the parent relinquishes the right to custody
and is relieved of the burden of support, and the child is no
longer entitled to support." Ibid. Whether or not a child is
emancipated is a fact-sensitive inquiry. Ibid. The question is
therefore "whether the child has 'moved beyond the sphere of
influence and responsibility exercised by a parent and obtains an
independent status of his or her own.'" Ibid. (quoting Bishop v.
Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)). The factual
inquiry must necessarily include issues such as the "child's need,
interests, and independent resources, the family's reasonable
expectations, and the parties' financial ability, among other
things." Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006).
6 A-2192-15T2
Initially the Family Part judge found it was "unclear" whether
the daughter was attending school since graduating from college
in January 2015, whether she was working full or part-time, and
whether there had been a lapse in her attendance at school.
Plaintiff did not provide evidence the daughter was living with
her during this time and did not demonstrate how the daughter was
not "beyond the sphere of parental influence." Therefore, the
court found plaintiff had not overcome the rebuttable presumption
her daughter was emancipated.
On reconsideration, plaintiff attempted to supplement the
record by providing a certification by the daughter in support of
plaintiff's motion for contribution. This certification was filed
in September 2015, after the trial court granted defendant's motion
for emancipation. These facts were not previously presented when
the court issued its August 11, 2015 order despite the fact
plaintiff was aware of the information. The Family Part judge
denied plaintiff's motion because plaintiff did not demonstrate
the court failed to consider relevant evidence or based its
decision on incorrect reasoning.
Motions for reconsideration are only granted in two narrow
situations. Fusco, supra, 349 N.J. Super. at 462. The first is
when "the [c]ourt has expressed its decision based upon a palpably
incorrect or irrational basis" and the second is when "it is
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obvious that the [c]ourt either did not consider, or failed to
appreciate the significance of probative, competent evidence."
D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990).
Plaintiff's motion for reconsideration was denied in part because
plaintiff did not establish the court failed to consider evidence
or based its decision on incorrect reasoning.3 Based upon the
record before us, however, because the court found it was "not
clear" the daughter was beyond the sphere of parental influence,
we modify the order denying reconsideration to be without prejudice
to the right of plaintiff to move to unemancipate the couple's
daughter.
Plaintiff also argues the judge erred in denying
reconsideration of the denial of plaintiff's request for
contribution of graduate school expenses. The judge denied
reconsideration relying on the parties' agreement, which only
contemplated contribution to college, not graduate school.
Plaintiff argues the judge should have considered Newburgh v.
Arrigo, 88 N.J. 529 (1982), which she asserts establishes her
right to receive both child support and contribution to graduate
school. In Newburgh, our Supreme Court held that, "in appropriate
circumstances, the privilege of parenthood carries with it the
3
The motion for reconsideration was also denied because it was
filed out of time and was therefore procedurally deficient.
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duty to assure a necessary education for children." Newburgh,
supra, 88 N.J. at 543. The Court added "[i]n general, financially
capable parents should contribute to the higher education of
children who are qualified students. In appropriate
circumstances, parental responsibility includes the duty to assure
children of a college and even of a postgraduate education such
as law school." Id. at 544.
Defendant cites Gac v. Gac, 186 N.J. 535 (2006), which
reiterated "[i]n general, a parent's responsibility to pay child
support terminates when the child is emancipated." Id. at 542
(citing Newburgh, supra, 88 N.J. at 542-43). However, nothing
"prevents a parent from freely undertaking to support a child
beyond the presumptive legal limits of parental responsibility."
Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006). A parent
may be required to contribute to a child's higher education
expenses even if the parent is no longer obligated to make monthly
child support payments to the other parent. See Jacoby v. Jacoby,
427 N.J. Super. 109, 118-19 (App. Div. 2012). Additionally, an
order emancipating a child does not necessarily bar a subsequent
order requiring parental contribution to higher education. Wanner
v. Litvak, 179 N.J. Super. 607, 612 (App. Div. 1981) (citing
Sakovits v. Sakovits, 178 N.J. Super. 623 (Ch. Div. 1981)). Here,
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the parties agreed to defer discussion of contribution to college
costs but did not expressly agree to graduate school costs4.
New Jersey favors the use of consensual agreements to resolve
marital controversies. J.B. v. W.B., 215 N.J. 305, 326 (2013).
Matrimonial settlement agreements are enforceable "to the extent
that they are just and equitable." Lepis v. Lepis, 83 N.J. 139,
146 (1980) (quoting Schlemm v. Schlemm, 31 N.J. 557, 581-82
(1960)). As in other contexts involving contracts, a court must
enforce a matrimonial agreement as the parties intended, so long
as it is not inequitable to do so. See Pacifico v. Pacifico, 190
N.J. 258, 266 (2007). When interpreting matrimonial settlement
agreements, the court should look to the terms as written "in the
context of the circumstances at the time of drafting and . . .
apply a rational meaning in keeping with the 'expressed general
purpose.'" Id. at 266 (quoting N. Airlines, Inc. v. Schwimmer,
12 N.J. 293, 302 (1953)). A court should not add terms to an
agreement "because one party later suggests that a few changes
would have made the agreement fairer." Dworkin v. Dworkin, 217
N.J. Super. 518, 523 (App. Div. 1987). Under that rational, the
4
We do not know if the parties have ever addressed the deferred
discussion of contribution towards college expenses or whether
there were expenses defendant should have shared and for which he
may still be held accountable. Nothing in the agreement forecloses
the recovery of college expenses as contemplated.
10 A-2192-15T2
Family Part judge relied upon the plain language of the parties'
agreement to deny plaintiff's application.
Affirmed as modified.
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