AARON CHANDLER VS. ANTOINETTE CHANDLER ANTOINETTE CHANDLER VS. AARON CHANDLER (FM-12-1165-14 AND FM-12-1024-10, MIDDLESEX COUNTY AND STATEWIDE)(CONSOLIDATED) VICTORY ENTERTAINMENT, INC. VS. RICHARD D. SCHIBELL (C-000046-15, MIDDLESEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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 NOS. A-2386-16T2
A-0122-17T2
AARON CHANDLER,
Plaintiff-Appellant,
v.
ANTOINETTE CHANDLER,
Defendant-Respondent.
_______________________________
ANTOINETTE CHANDLER,
Plaintiff-Respondent,
v.
AARON CHANDLER,
Defendant-Appellant.
_____________________________________
Submitted May 30, 2018 – Decided June 21, 2018
Before Judges Mawla and DeAlmeida.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex
County, Docket Nos. FM-12-1165-14 and FM-12-
1024-10.
Aaron Chandler, appellant pro se.
Cohen & Marinello, LLC, attorneys for
respondent (Ronald A. Cohen, on the brief).
PER CURIAM
In A-2386-16, Aaron Chandler1 appeals from an order dated
November 4, 2016, which denied his motion to terminate alimony and
apply the overpayment to child support, and granted Antoinette
Chandler's motion to compel payment of child support arrears,
modify child support, and pay for college expenses. Aaron also
appeals from a December 22, 2016 order denying reconsideration.
In A-0122-17, Aaron appeals from a June 7, 2017 order denying his
motion to modify custody and disqualify the motion judge, and a
July 20, 2017 order denying his motion for reconsideration. We
consolidate these back-to-back matters for purposes of this
opinion, and affirm.
We glean the following facts from the record. The parties
were married in April 1999. Two children were born of the
marriage, a daughter now twenty-one, and a son now nineteen years
of age. The parties were divorced in July 2010, and their final
judgment of divorce incorporated a property settlement agreement
(PSA).
1
We utilize the parties' first names to differentiate them because
Aaron Chandler is plaintiff in A-2386-16 and defendant in A-0122-
17, and Antoinette Chandler is defendant in A-2386-16 and plaintiff
in A-0122-17. By doing so we mean no disrespect.
2 A-2386-16T2
The PSA provided the parties would share joint legal custody
of the children, with Antoinette designated as the parent of
primary residence. The PSA provided Aaron would have reasonable
parenting time with the children, including every other weekend
from Friday after school until Sunday evening.
The PSA also established child support, payable to Antoinette
at a rate of $101 per week through probation, based on Aaron's
unemployment compensation of $600 per week, and Antoinette's
income of $750 per week. The PSA stipulated child support would
be recalculated upon Aaron obtaining employment.
With regard to extracurricular activities and educational
expenses, the PSA stated:
38. EXTRACURRICULAR ACTIVITIES/EDUCATIONAL
EXPENSES
At this time [Aaron] and [Antoinette] do not
agree to share the cost for the children's
extracurricular activities. Upon [Aaron's]
full[-]time employment, the cost of the
extracurricular activities shall be
revisited.
39. POST HIGH SCHOOL EDUCATIONAL PROVISION:
The parties are desirous of their children
attaining a college education to the extent
appropriate and consistent with the talents,
potential and abilities of the children. The
parties and children shall apply for the
maximum available scholarships, grants, loans
and financial aid available. In the event
that after the application of any financial
aid, scholarships and/or grant, there is a
3 A-2386-16T2
balance due, the parties agree to share in the
costs of the college education in accordance
with their respective incomes.
The PSA provided Aaron would pay Antoinette alimony at a
minimum of $130 per week for five years, commencing when he
obtained full-time employment. The PSA stipulated if Aaron
obtained employment earning between $85,000 and $94,999, alimony
would be $165 per week, and if he obtained employment earning more
than $95,000, alimony would be $200 per week. After thirty months,
the parties were to exchange income information, and Aaron's
alimony obligation would be recalculated to represent one-third
of the difference between the parties' incomes.
In August 2016, Aaron filed a motion seeking to terminate his
alimony payments, and "apply any over payment of alimony to arrears
or to credit child support order." It appears Aaron's alimony
obligation was $200 per week at the time he filed his motion.
Antoinette agreed Aaron was entitled to a termination in alimony,
but noted Aaron's alimony and child support arrears totaled
$3641.02. Therefore, Antoinette cross-moved for an order: 1)
requiring Aaron to satisfy all arrears before modifying the wage
garnishment; 2) modifying child support consistent with Aaron's
current income; 3) reimbursing Antoinette for college and
extracurricular activities expenses she paid on behalf of the
children; and 4) counsel fees.
4 A-2386-16T2
The motion judge terminated Aaron's alimony obligation
effective August 26, 2016. The judge ordered Aaron to satisfy all
alimony and child support arrears before receiving a modification
of the monthly wage garnishment. The judge ordered child support
to be recalculated, and Aaron was ordered to submit financial
information for those purposes.
Aaron was ordered to reimburse Antoinette for his share of
college and extracurricular activities. Pursuant to the PSA, the
judge noted the parties agreed to contribute to college expenses
in accordance with their respective incomes. The judge reasoned
because "the parties' incomes, based upon the respective parties'
paystubs are $1729 net for [Aaron] and $1459 net for [Antoinette],
the parties shall hereby evenly split (50/50) college costs for
[the parties' daughter] as per the parties' [PSA]." The judge
also stated because the parties' PSA provided contributions to
extracurricular activities would be evaluated once Aaron was
employed, and Aaron was employed, he was responsible for fifty
percent of the extracurricular expenses on behalf of the children.
Aaron sought reconsideration of the order, specifically the
college contribution and extracurricular activities costs. He
argued the judge erred by failing to apply the factors in Newburgh
v. Arrigo, 88 N.J. 529 (1982), before ordering the college
contribution. Aaron's motion for reconsideration was denied. The
5 A-2386-16T2
motion judge stated "a Newburgh analysis is not necessary when the
parties have stipulated to sharing college costs as the parties
have in this matter." The judge also denied reconsideration of
the order requiring Aaron to reimburse Antoinette for
extracurricular costs, stating "the parties are to share these
costs. It is inconsequential whether the extracurricular costs
are reoccurring as it is stipulated that the parties shall split
these costs in their [PSA]."
In May 2017, Aaron filed a motion seeking residential custody
of the parties' son, claiming he wished to live with Aaron.
Antoinette filed a cross-motion to enforce the orders for
reimbursement of extracurricular activities. Aaron's motion was
denied, and Antoinette's cross-motion was granted in part. The
motion judge ordered Aaron to reimburse Antoinette for
extracurricular activities within sixty days.
Aaron filed a motion for reconsideration of the order denying
him residential custody of the parties' son. In addition, he
sought the recusal of the motion judge. Aaron's motion was denied.
The judge found Aaron failed to demonstrate changed circumstances
warranting a change in custody, and failed to demonstrate any
grounds necessitating the judge's recusal. These appeals
followed.
I.
6 A-2386-16T2
We begin by reciting our standard of review. "The scope of
appellate review of a trial court's fact-finding function 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).
The "court must give due recognition to the wide discretion which
our law rightly affords to the trial judges," and disturb such
determinations only where the court abused its discretion. Larbig
v. Larbig, 384 N.J. Super. 17, 21, 23 (App. Div. 2006) (quoting
Martindell v. Martindell, 21 N.J. 341, 355 (1956)). Appellate
courts reverse only if there is "'a denial of justice' because the
family court's 'conclusions are . . . "clearly mistaken" or wide
of the mark.'" Parish v. Parish, 412 N.J. Super. 39, 48 (App.
Div. 2010) (quoting N.J. Div. of Youth & Family Servs. v. E.P.,
196 N.J. 88, 104 (2008)).
However, "[t]his court does not accord the same deference to
a trial judge's legal determinations." "Rather, all legal issues
are reviewed de novo." Ricci v. Ricci, 448 N.J. Super. 546, 565
(App. Div. 2017) (citation omitted). Furthermore, "where there
is a denial of a motion for reconsideration [pursuant to Rule
4:49-2], the standard . . . is 'abuse of discretion.'" Cummings
v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996).
7 A-2386-16T2
In A-2386-16, Aaron argues he should not be required to pay
for extracurricular expenses. He argues paragraph 38 of the PSA
states the parties agreed not to share extracurricular activity
costs and would revisit them when he re-gained full-time
employment. Aaron also argues laches bar Antoinette from seeking
payment of extracurricular expenses because she waited three years
before filing a motion. He argues neither Antoinette nor the
parties' daughter made him aware of, or consulted with him about,
the expenses. Aaron asserts the expenses are more than necessary
to maintain their daughter in her dance activity.
Aaron also asserts Antoinette enrolled the parties' son in
football training without his approval, and he should not have to
contribute to the expense because he would have found inexpensive
or free football training for their son. Aaron argues the expenses
for their son are "not supported" by the child support guidelines
because they are not a recurring activity, and do not warrant
payment outside of the base child support amount.
Aaron argues he should not be required to pay for college
because he is estranged from the parties' daughter. Alternatively,
he argues that if he is compelled to pay, it should only be after
he and their daughter go to therapy. He argues he should not be
required to incur a loan for college until Antoinette demonstrates
8 A-2386-16T2
she paid out-of-pocket for college. Aaron argues the judge did
not consider the Newburgh factors.
In A-122-17, Aaron argues the motion judge did not consider
the factors of N.J.S.A. 9:2-4(c) when the judge concluded Aaron
had not established a changed circumstance. Aaron also argues the
judge should have been disqualified for bias because he admonished
Aaron to comply with the rules of court when filing motions. Aaron
asserts the admonition constituted a threat, which violated the
judicial canons. Aaron contends the judge was biased in favor of
Antoinette's attorney because the judge cited cases supporting
Antoinette's arguments. Aaron argues the judge was not competent
because he misinterpreted the statutory bar on retroactive
modifications. Aaron also asserts a member of the judge's staff
was annoyed with him, which further demonstrates the judge's bias
against him. We address these arguments in turn.
A.
Child support is the exclusive right of the child. Martinetti
v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993). Child
support is a joint obligation of both parents for as long as a
child remains un-emancipated. Llewelyn v. Shewchuk, 440 N.J.
Super. 207, 214-15 (App. Div. 2015); Lynn v. Lynn, 165 N.J. Super.
328, 343 (App. Div. 1979).
9 A-2386-16T2
The guidelines state a child support award includes
entertainment expenditures, specifically "[f]ees, memberships and
admissions to sports, recreational, or social events, lessons or
instructions, movie rentals, televisions, mobile devices, sound
equipment, pets, hobbies, toys, playground equipment, photographic
equipment, film processing, video games, and recreational,
exercise or sports equipment." Pressler & Verniero, Current N.J.
Court Rules, cmt. 8 on Appendix IX-A to R. 5:6A (2018). However,
the guidelines also state "[b]ecause some child-related expenses
represent large or variable expenditures or are not incurred by
typical intact families, it is not appropriate to include them in
the . . . basic child support award." Pressler & Verniero, cmt.
9 on Appendix IX-A to R. 5:6A. The guidelines specify:
Other Expenses Approved by the Court – These
are predictable and recurring expenses for
children that may not be incurred by average
or intact families such as private elementary
or secondary education, special needs of
gifted or disabled children, and NCP/PAR time
transportation expenses. The addition of
these expenses to the basic obligation must
be approved by the court. If incurred,
special expenses that are not predictable and
recurring should be shared by the parents in
proportion to their relative incomes (i.e.,
the sharing of these expenses should be
addressed in the general language of the order
or judgment). Special expenses not included
in the award should be paid directly to the
parent who made or will make the expenditure
or to the provider of the goods or services.
10 A-2386-16T2
[Ibid.]
Regarding Antoinette's request for reimbursement of
extracurricular activities the motion judge concluded:
[I]n accordance with the . . . [PSA],
[paragraph] 38, [which] stated that
extracurricular expenses would be revisited at
the time [Aaron] is employed, and as [Aaron]
is now gainfully employed, [he] shall hereby
be responsible for [fifty percent] of the
extracurricular expenses incurred by
[Antoinette] on behalf of the parties'
children[.]
We agree. Contrary to Aaron's argument, the PSA did not
extinguish his obligation to contribute to extracurricular
activities. Rather, the issue was to be addressed when Aaron
gained employment, which he had done when the judge heard the
motion. There is no evidence the motion judge abused his
discretion by ordering Aaron to pay fifty percent of
extracurricular activity expenses. Indeed, both children's
activities fell within the guideline-defined "special expenses,"
because they were variable expenses. Pressler & Verniero, comment
9 on Appendix IX-A to R. 5:6A. Aaron misreads the guidelines as
holding nonrecurring expenses are included within the base child
support amount, whereas the guidelines instead state nonrecurring
expenses should be paid in addition to child support. Ibid.11 A-2386-16T2
We also reject Aaron's argument the motion judge erred by not
applying laches to Antoinette's request for contribution to the
children's expenses.
Laches is an equitable doctrine which
penalizes knowing inaction by a party with a
legal right from enforcing that right after
passage of such a period of time that
prejudice has resulted to the other parents
so that it would be inequitable to enforce the
right. The key ingredients are knowledge and
delay by one party and change of position by
the other.
[L.V. v. R.S., 347 N.J. Super. 33, 39 (App.
Div. 2002) (citation omitted).]
As we noted, child support is a right belonging to the child.
Consistent with this premise we have held "there is no basis to
impute to a child the custodial parent's negligence, purposeful
delay or obstinacy so as to vitiate the child's independent right
of support from a natural parent." Id. at 40.
We reject Aaron's reliance on laches as a bar to his
obligation to contribute to the children's expenses. The equities
do not favor application of the doctrine. Aaron does not dispute
he owed child support and was in arrears thereby depriving
Antoinette of funds she may have used to meet the children's needs.
Moreover, even if Antoinette's motion was untimely, the length of
the delay in filing it was not so significant that there was a
12 A-2386-16T2
concomitant prejudice to Aaron by requiring him to contribute his
share of the expenses for the children's benefit.
Furthermore, we reject Aaron's arguments the motion judge
could not order him to contribute to the college expenses. It is
well established that matrimonial settlement agreements are
contractual in nature, and because they are voluntary and
consensual, they are presumed valid and enforceable. Pacifico v.
Pacifico, 190 N.J. 258, 265 (2007); see Massar v. Massar, 279 N.J.
Super. 89, 93 (App. Div. 1995). Thus, "[a]s a general rule, courts
should enforce contracts as the parties intended." Pacifico, 190
N.J. at 266. A court should "enforce [a contract] as written[,]"
where the terms are unambiguous. Cty. of Morris v. Fauver, 153
N.J. 80, 103 (1998); see also Quinn v. Quinn, 225 N.J. 34, 39
(2016).
Moreover, within the context of a college contribution, we
have stated:
Absent inequity or unanticipated changed
circumstances not addressed by the agreement,
a court is obligated to enforce its terms when
it was "entered [into] by fully informed
parties, represented by independent counsel,
and without any evidence of overreaching,
fraud, or coercion." Otherwise, "the court
eviscerates the certitude the parties thought
they had secured, and in the long run
undermines this Court's preference for
settlement of all, including marital,
disputes."
13 A-2386-16T2
A court's obligation to enforce marital
settlement agreements applies to provisions
regarding the parents' obligation to pay for
their children's college expenses. Although
parents generally are not obligated to support
a child who has attained the age of majority,
"in appropriate circumstances, the privilege
of parenthood carries with it the duty to
assure a necessary education for children."
"In general, financially capable parents
should contribute to the higher education of
children who are qualified students."
Accordingly, where parties to a divorce have
reached an agreement regarding children
attending college and how those college
expenses should be divided, and no showing has
been made that the agreement should be vacated
or modified, the Family Part need not apply
all twelve factors pertinent to college
expenses as identified in Newburgh. Rather,
the court should enforce the agreement as
written.
[Avelino-Catabran v. Catabran, 445 N.J. Super.
574, 590-91 (App. Div. 2016) (alteration in
original) (citations omitted).]
Here, the parties contracted in the PSA to share the costs
of college commensurate with their respective incomes. The judge
followed the parties' PSA. Aaron did not present credible evidence
of an inequity or a substantial change in circumstance, which
mandated relieving him from his obligation to contribute to college
while Antoinette and the children bore the expense alone. Even
if the evidence of Aaron's estrangement from the parties' daughter
were proven to be the daughter's fault, it is but one factor within
a twelve-factor Newburgh calculus, the balance of which Aaron did
14 A-2386-16T2
not address. For these reasons, the motion judge was not required
to analyze the Newburgh factors anew.
Aaron argues "the trial court abused its discretion by not
acknowledging or adhering to the full context of N.J.S.A. 2A:17-
56.23(a) by not applying [the] over payment of alimony to current
child support arrears and ordering [Antoinette] to reimburse [him]
for any overpayment through the child support agency." Aaron's
argument is hard to decipher and, in any event, lacks merit.
"Our rules clearly impose upon the . . . parties to the appeal
the absolute duty to make unnecessary an independent examination
of the record by the court, R. 2:6-9, even though the court
inevitably undertakes to review the record for itself." State v.
Hild, 148 N.J. Super. 294, 296 (App. Div. 1977). Notwithstanding,
we surmise Aaron is arguing the motion judge erred by declining
to apply Aaron's alleged overpayment of alimony to his child
support obligation, and that Aaron believes this to be a violation
of N.J.S.A. 2A:17-56.23(a). Specifically, he believes because his
alimony obligation was terminated effective August 26, 2016, and
because he continued to pay alimony until November 4, 2016, the
overpayment should have been applied to his child support
obligation.
The record does not support Aaron's argument he overpaid
alimony. His alimony arrears were $1741 as of September 21, 2016.
15 A-2386-16T2
Aaron's alimony obligation was $200 per week, and there were six
weeks of payment between the statement date and the order
terminating his alimony obligation on November 4, 2016. Thus,
Aaron's alimony payments during this time totaling $1200 would
have been applied to his alimony arrears, which exceeded the
payments, and he still owed alimony of $541.
Even if Aaron had overpaid alimony, it is not probation's
role to collect from an obligee. Indeed, "all support orders are
to be enforced by withholding income from the obligor unless the
parties agree otherwise or the court so orders for good cause."
Pryce v. Scharff, 384 N.J. Super. 197, 206 (App. Div. 2006)
(emphasis added). Furthermore, an alimony overpayment is not
included within the category of judgments subject to probation
enforcement and collection. Id. at 209; see also N.J.S.A. 2A:17-
56.52.
B.
As we noted, Aaron sought custody of the parties' then-
seventeen-year-old son. Aaron challenges the motion judge's order
denying the custody modification and asserts the failure to
demonstrate a changed circumstance "should not be a sufficient
reason to deny a change of custody, when a child has had the desire
to live with a parent for many years." He further asserts the
motion judge's order was "vague and often used reasoning by judges
16 A-2386-16T2
to deny fathers custody[.]" Aaron argues he is entitled to custody
pursuant to the factors under N.J.S.A. 9:2-4(c). We are
unpersuaded.
At the outset:
A judgment, whether reached by consent or
adjudication, embodies a best interests
determination. It is only when such a
determination has been made and a judgment
entered that a moving party must bear the
threshold burden of showing changed
circumstances which would affect the welfare
of the children. . . . [T]he circumstances
under which a prior judgment may be disturbed
. . . are changed circumstances which would
have an impact on the child's welfare.
[Todd v. Sheridan, 268 N.J. Super. 387, 398
(App. Div. 1993) (citation omitted).]
Secondly, we disagree the motion judge's findings were vague.
Rather, pursuant to Todd, the motion judge found:
[Aaron] . . . fails to demonstrate the changed
circumstances necessary to effectuate a
custody change. Further, [the parties' son]
is [seventeen] years old and [Antoinette]
certified that he only has one year of high
school left and is comfortable in his school.
As [the parties' son] will be [eighteen] this
year, and as [Aaron] fails to demonstrate
significant changed circumstances, the
[c]ourt will not modify residential custody
at this time.
We discern no error or abuse of discretion in the motion
judge's findings. We add that the parties' son is presently
eighteen years old, and N.J.S.A. 9:2-4 applies only to minors.
17 A-2386-16T2
Therefore, the issue of custody is now moot because the parties'
son is an adult. See Greenfield v. N.J. Dep't of Corr., 382 N.J.
Super. 254, 257-58 (App. Div. 2006) ("An issue is 'moot' when the
decision sought in a matter, when rendered, can have no practical
effect on the existing controversy.") (quoting N.Y. Susquehanna &
W. Ry. Corp. v. N.J. Dep't of Treasury, Div. of Taxation, 6 N.J.
Tax. 575, 582 (Tax Ct. 1984)). "[C]ourts of this state do not
resolve issues that have become moot due to the passage of time
or intervening events." State v. Davila, 443 N.J. Super. 577, 584
(App. Div. 2016) (alteration in original) (quoting City of Camden
v. Whitman, 325 N.J. Super. 236, 243 (App. Div. 1999)).
Finally, Aaron asserts the motion judge should have been
disqualified for bias. We disagree.
Rule 1:12-1, in pertinent part, provides:
The judge of any court shall be disqualified
on the court's own motion and shall not sit
in any matter . . .
. . . .
(g) when there is any other reason which might
preclude a fair and unbiased hearing and
judgment, or which might reasonably lead
counsel or the parties to believe so.
Additionally, Canon 3.17(B)(1) of the Code of Judicial
Conduct provides:
(B) Judges shall disqualify themselves in
proceedings in which their impartiality or the
18 A-2386-16T2
appearance of their impartiality might
reasonably be questioned, including but not
limited to the following:
(1) Personal bias, prejudice or knowledge.
Judges shall disqualify themselves if they
have a personal bias or prejudice toward a
party or a party's lawyer or have personal
knowledge of disputed evidentiary facts
involved in the proceeding.
[Code of Judicial Conduct, Pressler &
Verniero, Current N.J. Court Rules, Appendix
to Part 1 at 534 (2018).]
Aaron has failed to offer any objective evidence of the bias
alleged to warrant the motion judge's recusal. The record
demonstrates the opposite of his assertions, namely, that the
judge fulfilled his obligation to assess the evidence and apply
the facts to the law in adjudicating the motions. R. 1:7-4(a).
Aaron's arguments for recusal are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
19 A-2386-16T2