DENISE NETTA (F/K/A DENISE MONEK) VS. CHRISTOPHER MONEK(FM-12-2213-94, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-1194-14T1
DENISE NETTA (f/k/a DENISE
MONEK),
Plaintiff-Appellant/Cross-
Respondent,
v.
CHRISTOPHER MONEK,
Defendant-Respondent/Cross-
Appellant.
__________________________________
Submitted October 6, 2016 – Decided May 11, 2017
Before Judges Alvarez and Accurso.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex
County, Docket No. FM-12-2213-94.
Robbins & Robbins, LLP, attorneys for
appellant/cross-respondent (Claudia C.
Lucas, of counsel and on the brief).
Shane & White, LLC, attorneys for
respondent/cross-appellant (Kenneth A.
White, of counsel; Katelyn M. Brack, on the
brief).
PER CURIAM
Plaintiff Denise Netta appeals from aspects of a post-
judgment order entered by the Family Part on September 15, 2014,
denying her motion to compel her ex-husband, defendant
Christopher Monek, to contribute to the college costs of their
twenty-two-year-old daughter. Defendant cross-appeals from
aspects of the same order denying his motion to emancipate the
child retroactive to a prior order entered in January 2011 and
to terminate or reduce his child support obligation from that
date. Both parties complain that the court denied their request
for fees. We vacate the order and remand for a plenary hearing.
By way of background, the parties were married in 1991 and
divorced in 1994. Their only child together, a daughter, was
two years old at the time their marriage broke up. Although
plaintiff did not attend college, and defendant attended only an
eighteen-month program at DeVry before becoming employed as a
police officer, they agreed to either resolve their respective
contributions toward her college expenses themselves, or submit
the issue to the court for resolution, "at the appropriate
time."
Unable to agree on their respective contributions when the
time came, the court resolved their dispute. In January 2011, a
Family Part judge ordered plaintiff to assume 32%, and defendant
to assume 68%, of "all expenses incurred which are reasonably
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related to [their daughter's] college education, after grants,
scholarships, and loans." The court granted plaintiff's motion
to increase child support and denied defendant's cross-motion to
emancipate the child. The statement of reasons accompanying
that order includes a limitation on defendant's contribution not
contained in the order itself. It provides that defendant's 68%
share of college expenses "shall apply so long as [the child] is
attending either Mercer County Community College (MCCC) or
Rutgers University." No explanation for the limitation was
provided and its basis is not apparent from the record.
It is not possible to summarize accurately the facts of the
parties' most recent dispute as they disagree on almost
everything. Defendant claims the parties' daughter dropped out
of high school and failed to complete her first semester at
Rutgers in fall 2010, which he refers to as "Strike One."
"Strike Two" followed with her failure to secure more than nine
credits at MCCC in the spring 2011 term, thus "failing to
maintain full-time student status." Her failure to earn more
than six credits in the fall 2012 term earned her "Strike Three"
in his view, which she followed with "Strike Four" by posting
only nine credits in spring 2013.
Defendant claims the child "has no special needs, and
therefore no excuse for having amassed only 1 1/2 years of
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credit toward the college program she is seeking to enter"
despite having "been enrolled for eight (8) full-time
semesters." He claims she works full-time, and that she and her
mother have never kept him apprised of the child's academic
progress or school plans. He maintains the parties' daughter,
"has proven that she is not capable of consistently meeting the
responsibility of maintaining full-time student status."
Finally, defendant claims it is "unconstitutional for the
court to compel [him] as a divorced parent to contribute to the
college costs and expenses of [his twenty-two] year old child as
the court would lack the ability to so compel [him] had [he]
remained married." Defendant maintains he supports a ten-year-
old child from a second marriage and wishes to retire from the
police force in the near future. Thus he claims he and does not
"have the financial ability to support [the parties' daughter]
thru 3 [plus] more years of college, particularly at an out-of-
state private college (with a $60,000 a year price tag)."
Plaintiff counters that the parties' daughter "was a
straight 'A' honor student and varsity cheerleader" in high
school and graduated with her class, albeit having attended her
senior year at night as a result of "anxiety issues as her
father well knows." Plaintiff acknowledges that the child
withdrew from Rutgers during her first semester in fall 2010,
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but maintains she thereafter diligently pursued her studies at
MCCC, as a full-time student every semester, achieving a 3.83
average and her associate's degree in 2014. She explains their
daughter attended MCCC for three years instead of two because
she was pursuing a career in photography, and was taking classes
in a prescribed order and creating a portfolio.
Plaintiff maintains defendant was always kept apprised of
their daughter's academic plans and progress, as demonstrated by
the vast number of emails she attached to her certification.
Further, plaintiff contends in February 2014, defendant paid his
share of the cost of her applications to Parsons School of
Design and the School of Visual Arts (SVA), both located in
Manhattan. After the child was accepted at both, and decided to
go to SVA, plaintiff claims defendant agreed to pay his share of
the costs, and only reneged when he got the bill.
Finally, plaintiff contends that defendant has paid
"virtually zero" in college costs for the parties' daughter, and
thus his attempt to "give the impression that he has already put
her through college for 4 years is disingenuous." She maintains
their daughter attends school full-time, is plainly not
emancipated and that defendant's desire to retire at forty-five
years old should not redound to the detriment of their
daughter's education.
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The trial judge denied plaintiff's request to find
defendant in violation of the prior order, as under that order
defendant "is only responsible for 68% of [the child's] college
expenses if she is attending either Mercer County Community
College or Rutgers University." The judge denied plaintiff's
further request that defendant pay his 68% share of the costs of
SVA "for the reason stated above," i.e., it is not Rutgers or
MCCC. The court further found, "based on the evidence
provided," that plaintiff had not shown that defendant "ever
agreed to pay any amount towards SVA's tuition and costs." The
judge likewise denied plaintiff's request that defendant
reimburse her $884, representing his 68% share of the $1300
enrollment fee and dorm room deposit plaintiff paid SVA.
The judge denied defendant's cross-motion to emancipate the
parties' daughter or decrease his child support. In an
accompanying statement of reasons, the judge noted that the
parties' daughter still lives with plaintiff, "intends to
continue her higher education and does not work full-time."
Finding the child was "not independent nor outside the sphere of
influence of her parents," the judge deemed emancipation
unwarranted. Noting that defendant earns in excess of $100,000
as a police officer and that his claim the parties' daughter
"works full-time is unsubstantiated," the judge found defendant
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had failed to demonstrate a change in circumstances warranting a
reduction in his child support. The judge denied counsel fees
to both parties, finding it "not evident" that either had "acted
in bad faith."
The parties appeal, reprising essentially the same
arguments they made to the trial court. Having reviewed the
record, we think it readily apparent that neither defendant's
motion to emancipate the parties' daughter, nor plaintiff's
motion to compel defendant to contribute to her expenses at SVA,
could be decided in the absence of a plenary hearing. See
K.A.F. v. D.L.M., 437 N.J. Super. 123, 137 (App. Div. 2014)
(noting a court may not resolve conflicting factual averments on
material issues without a plenary hearing).
The parties' views about the academic abilities and
diligence of their daughter could not be more diametrically
opposed. Plaintiff says that she is an excellent student,
diligently pursuing her studies full-time with the goal of
pursuing a career in photography while working part-time to
defray expenses. Defendant presents the same child as one
unable to remain regularly enrolled, who works full-time.
Plaintiff maintains that defendant is financially secure and can
well contribute to their daughter's education. Defendant claims
he has other obligations, wishes to retire and cannot contribute
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to the child's education and should not have to. The court
accepted on the basis of the conflicting certifications that the
child is not independent and is pursuing her degree, but without
any reference to the Newburgh factors determined that defendant
had no obligation to contribute to the costs of her education.
See Newburgh v. Arrigo, 88 N.J. 529, 545 (1982) (setting forth
twelve factors courts should consider in evaluating a claim for
contribution toward the cost of higher education).
The parties' conflicting certifications make clear that
there are material facts in dispute on the critical questions of
whether the parties' daughter has moved beyond the sphere of her
parents' influence or instead remains a full-time student
entitled to some level of support from them in the discharge of
their parental duty to assure her an education. See id. at 544
("In appropriate circumstances, parental responsibility includes
the duty to assure children of a college and even of a
postgraduate education."). We remand for discovery and a
plenary hearing. See Tretola v. Tretola, 389 N.J. Super. 15,
20-21 (App. Div. 2006) (underscoring the need for a plenary
hearing to determine parents' obligation for support when their
child both worked full-time and attended community college with
intent of pursuing four-year degree). In light of our
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disposition, we need not reach the parties' remaining arguments,
including defendant's constitutional claims.
Reversed and remanded for further proceedings consistent
with this opinion. We do not retain jurisdiction.
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