JANINE CLAPPER VS. GREGORY CLAPPER (FM-15-1104-10, OCEAN COUNTY AND STATEWIDE) ( 2017 )


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  •                          NOT FOR PUBLICATION WITHOUT THE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-1476-15T2
    JANINE CLAPPER n/k/a
    JANINE SEELEY,
    Plaintiff-Respondent,
    v.
    GREGORY CLAPPER,
    Defendant-Appellant.
    _____________________________
    Submitted December 7, 2016 – Decided May 25, 2017
    Before    Judges    Fuentes,    Carroll    and   Gooden
    Brown.
    On appeal from the Superior Court of New
    Jersey, Chancery Division, Family Part, Ocean
    County, Docket No. FM-15-1104-10.
    Gary L. Goldberg, attorney for appellant.
    Respondent has not filed a brief.1
    PER CURIAM
    In this post-judgment matrimonial matter, defendant Gregory
    Clapper appeals from the provisions of the October 23, 2015 Family
    1
    Plaintiff did not file a brief, having had her ability to file
    a brief suppressed by our order dated May 23, 2016.
    Part Order denying his application to emancipate the parties' then
    twenty-one-year-old      son,    J.C.,      denying   his     application       to
    terminate child support, and granting plaintiff's cross-motion
    requiring defendant to contribute prospectively towards J.C.'s
    post high school education expenses pursuant to the parties'
    property settlement agreement (PSA).          Defendant contends that the
    "information     provided   to   the     [t]rial    [c]ourt,    was    woefully
    inadequate to justify denying emancipation" and the court "erred
    in   failing   to   terminate"   or    "reduce     child    support"    and   "in
    requiring [] defendant to contribute to the cost of [J.C.]'s
    training prospectively" without considering the factors enunciated
    in Newburgh v. Arrigo, 
    88 N.J. 529
    (1982) and Gac v. Gac, 
    186 N.J. 535
    (2006).     Having considered these arguments in light of the
    record and applicable legal principles, we reverse and remand for
    an evidentiary hearing.
    I.
    We derive the following facts from the record.            Defendant and
    plaintiff Janine Clapper divorced in 2011 following a nineteen-
    year marriage.      Two children were born of the marriage, J.C., born
    in September 1994, and G.C., born in March 2001.             A final judgment
    of divorce terminating the parties' marriage was entered on March
    15, 2011, which incorporated a PSA between the parties.                Under the
    PSA, the parties share joint legal custody of the children with
    2                                 A-1476-15T2
    plaintiff   designated    as   the   parent   of    primary   residence   and
    defendant    designated   as   the   parent    of    alternate   residence.
    Defendant was obligated to pay $232 per week in child support
    "which exceeds the Child Support Guidelines[.]"
    The PSA provides for termination of defendant's child support
    obligations on the first of the following events:
    A. Graduation from high school, however, in
    the event the child cease[s] to attend high
    school, then and in that event, upon the
    child's eighteenth birthday.   If the child
    continues full time education after high
    school, then upon graduation from the post-
    high school institution.
    B. The child's marriage.
    C. Anything to the contrary notwithstanding,
    if the child becomes disabled[.]
    D. Demise of the child or the [defendant.]
    E. Entry in the Armed Forces of the United
    States[.]
    F. Engaging in full time employment upon and
    after the child attaining the age of eighteen
    (18) years, except that: (i) [e]ngaging by the
    child in partial, part-time or sporadic
    employment shall not constitute emancipation,
    and (ii) [e]ngaging by the child in full time
    employment during vacation and summer periods
    shall not be deemed emancipation.
    G. Emancipation arising from employment shall
    be deemed terminated and nullified upon the
    cessation by the child, for any reason, from
    full time employment and the period, if any,
    from such termination until the earliest of
    3                             A-1476-15T2
    any of the other events herein set forth,
    shall, for all purposes under this Agreement,
    be deemed a period prior to the occurrence of
    such emancipation.
    H. A child attending college or similar post
    high school educational institution shall not
    be considered emancipated.
    Additionally, in connection with college education, the PSA
    expressly provides:
    6.1 JOINT OBLIGATION: The [p]arties recognize
    that they have a joint, but not necessarily
    equal, obligation to provide a college
    education for the unemancipated child of the
    marriage and the precise amount of their
    respective contributions shall be determined
    at the time the college expense is incurred.
    This determination shall be based upon a
    review of each [p]arty's overall financial
    circumstances including their income, assets
    and obligations including, but not limited to,
    the [defendant's] obligation to pay child
    support.
    6.2 REVIEW:   The [p]arties acknowledge that
    depending upon the location of the college,
    the actual cost, and the [p]arties financial
    circumstances at the time, the new college
    educational expense may require a review of
    the [defendant's] child support obligation.
    6.3 COLLEGE EXPENSES: A college expense shall
    be defined as an expense for tuition, books,
    room    and   board,    student   fees,    and
    transportation from the residence to school,
    student activity fees and such other costs
    reasonably necessary to maintain the child in
    school.   Prior to either [p]arty having an
    obligation to contribute to such expenses, the
    child shall first have the obligation to apply
    for all existing loans, scholarships, grants,
    4                          A-1476-15T2
    and further to utilize any funds accumulated
    by the child to meet the obligation.
    6.4 CASELAW: The factors to be considered on
    the   issue  of   evaluating   a  claim  for
    contribution towards the cost of higher
    education were summarized in the New Jersey
    Supreme Court case of Newburgh v. Arrigo, 
    88 N.J. 529
    [(1982)].    The [p]arties agree to
    comply with their respective obligations in
    accordance with this case.
    In April 2015, defendant filed a motion seeking, among other
    things,    an   order   declaring      J.C.    emancipated    retroactive      to
    February    28,     2013,   reimbursement      of   post-emancipation       child
    support    payments,    and   termination      of   child   support   for   J.C.
    Plaintiff filed a cross-motion seeking, among other things, to
    compel defendant to contribute towards J.C.'s "post high school
    educational expenses pursuant to article 6.1 of the [PSA]."
    In support of his motion, defendant certified that he was
    "essentially out of work" as "a self-employed painter" due to
    "major     health    problems"   and    "has    applied     for   disability."
    Defendant averred that his tax return reflected an income of
    "[$29,684] in 2014" while, at the time of the divorce, he "was
    imputed with income of [$40,000]."             According to defendant, "he
    has no income to date for 2015" and "has been paying child support
    [by] liquidating assets, which are just about exhausted."
    Defendant also certified that after J.C.'s graduation from
    high school in June 2012, J.C. "went to North Carolina in October
    5                               A-1476-15T2
    2012," where he attended NASCAR Technical School (NASCAR Tech) and
    "worked part-time."          According to defendant, J.C. graduated from
    NASCAR Tech "in February 2013" and obtained full-time employment
    with "Goodyear Racing Tires in North Carolina" while working "as
    a jackman in [ARCA] Racing."          Defendant certified that J.C. is no
    longer     "attending   college,      or       any   school[.]"    As    a   result,
    defendant     sought    an    order   emancipating         J.C.   retroactive       to
    February 2013 when he graduated from NASCAR Tech.
    In contrast, plaintiff certified that J.C. graduated from
    Universal     Technical      Institute,        NASCAR's    technical    school,     in
    February 2014, rather than 2013 as asserted by defendant. Further,
    plaintiff averred that "[t]his was the initial phase of the
    education and training [J.C.] would need to have before he could
    reach his career goal[]" of becoming "a [p]it [c]rew member for a
    NASCAR racing team."
    According to plaintiff, after graduating from NASCAR Tech,
    J.C. continued his education by immediately enrolling in "PIT U
    Training Course[,]" the only pit crew training school "licensed
    by   the   North   Carolina     Community        College    System."     Plaintiff
    described the program as "a graduate program by invitation only[]"
    where J.C. currently "attends mandatory classes two (2) days a
    week and field training five (5) days per week. In addition [J.C.]
    6                                 A-1476-15T2
    interns with the ARCA racing programs during the racing season at
    various tracks around the country as a [j]ackman."
    According     to   plaintiff,   "[d]ue   to    his    rigorous    schedule
    [J.C.] can only work part-time."          Plaintiff certified that "in
    2014[, J.C.] only earned a little over $16,000."                      Plaintiff
    continued   that   "[J.C.]    presently   works     for    Randstand    in   the
    Goodyear Racing Division as a tire specialist." However, plaintiff
    averred that J.C. continued to rely on her financially to meet his
    basic expenses, including housing costs.
    Plaintiff     provided   a   document    from    Universal       Technical
    Institute listing payments totaling $34,650 to J.C.'s student
    account as of April 14, 2015.        Plaintiff also submitted a NAVIENT
    student loan payment history statement dated April 24, 2015,
    showing a total balance of $22,781.59 and a private student loan
    balance of $1,004.56 as of April 24, 2015. Additionally, plaintiff
    presented a document signed by J.C.'s purported landlord stating
    that plaintiff has paid $300 each month since October 2012 for
    J.C.'s rent in North Carolina.
    According to plaintiff, some of these expenses have been met
    through contributions made by her mother.                 Plaintiff certified
    further that "each time [she] . . . made a request for [d]efendant
    to make a financial contribution towards the costs, [d]efendant
    either refused or ignored the requests."           Plaintiff also dismissed
    7                                 A-1476-15T2
    defendant's "claims of poverty" and disputed that defendant was
    out of work.
    After hearing argument on the motions, the trial court denied
    defendant's application for emancipation and termination of child
    support without prejudice and ordered defendant "to contribute
    towards [J.C.'s] post high school educational expenses pursuant
    to article 6.1 of the [PSA]" prospectively from July 14, 2015.
    The court determined that Justin was still in the process of
    completing a non-traditional post high school education in order
    to reach "his goal of working in the pit crew on NASCAR[,]" through
    a program that the court described as a "hybrid vo-tech and in
    class" "clinical education."   The judge explained that
    the P.S.A. says, 'If the child continues
    full-time education after high school, then
    upon   graduation   from   post   high   school
    institution' -- it doesn't say college with a
    capital C or university with a capital U. Here
    he has completed two years of the one program
    and now there's this other program. . . . [M]y
    inclination certainly is to say by May or June
    of 2016 he'll be emancipated more likely than
    not because if he's completed the program
    then, that's it. That will be your four years,
    if you will, of college or post high school
    education.
    Relying on Gac v. 
    Gac, supra
    , the court denied plaintiff's
    request for retroactive contributions without prejudice finding
    that, based on the record before the court, plaintiff did not
    discuss or consult with defendant ahead of time and "[plaintiff]
    8                           A-1476-15T2
    never     once   put   anything   in     writing"     to   defendant   seeking
    contributions.         However,   the    court     explained   that    "because
    everybody knows now where we're at and that they're seeking
    contribution, and . . . I don't set any number here or do anything
    other than to say prospectively.              Everybody knows what's going on
    now[.]"
    This appeal followed.        On appeal, defendant argues that:
    THE TRIAL COURT ABUSED ITS DISCRETION, AND ERRED, IN
    FAILING TO FOLLOW THE CRITERIA SET FORTH IN NEWBURGH
    V[.] ARRIGO AND OTHER CONTROLLING CASES, AND ERRED IN
    FAILING TO EMANCIPATE AND TERMINATE CHILD SUPPORT FOR
    [J.C.] RETROACTIVE.
    II.
    We ordinarily accord great deference to the discretionary
    decisions of Family Part judges.              Donnelly v. Donnelly, 405 N.J.
    Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 
    384 N.J. Super. 17
    , 21 (App. Div. 2006)).                  Similar deference is
    accorded to the factual findings of those judges following an
    evidentiary hearing.        Cesare v. Cesare, 
    154 N.J. 394
    , 411-12
    (1998).     While we respect the Family Court's special expertise,
    we may exercise more extensive review of trial court findings that
    do not involve a testimonial hearing or assessments of witness
    credibility.     Cf. N.J. Div. of Youth & Family Servs. v. G.M., 
    198 N.J. 382
    , 396 (2009) (stating that deference to Family Court
    9                              A-1476-15T2
    conclusions is not required where "no hearing takes place, no
    evidence is admitted, and no findings of fact are made").
    A judge may not make credibility determinations or resolve
    genuine factual issues based on conflicting affidavits.             Conforti
    v. Guliadis, 
    128 N.J. 318
    , 322 (1992). When the evidence discloses
    genuine material issues of fact, a Family Court's failure to
    conduct a plenary hearing to resolve those issues is a basis to
    reverse and remand for such a hearing.         See, e.g., Fusco v. Fusco,
    
    186 N.J. Super. 321
    , 329 (App. Div. 1982); Tancredi v. Tancredi,
    
    101 N.J. Super. 259
    , 262 (App. Div. 1968).                  We must always
    determine whether there is sufficient credible evidence in the
    record to support the trial court's factual determinations.              Rova
    Farms Resort, Inc. v. Investors Ins. Co. of Am., 
    65 N.J. 474
    , 484
    (1974).
    Having set forth our standard of review, we next discuss the
    principles that guide our analysis of the issue of emancipation
    and a claim for contribution to the costs of higher education.              In
    Filippone   v.   Lee,   304   N.J.   Super.   301   (App.   Div.   1997),   we
    summarized the controlling principles regarding emancipation:
    Emancipation of a child is reached 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.
    Emancipation may occur by reason of the
    10                              A-1476-15T2
    child's marriage, by court order, or by
    reaching an appropriate age, and although
    there is a presumption of emancipation at age
    eighteen, that presumption is rebuttable. In
    the end the issue is always fact-sensitive and
    the essential inquiry is 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." Bishop v. Bishop, 
    287 N.J. Super. 593
    ,
    598 (Ch. Div. 1995).
    
    [Filippone, supra
    , 304 N.J. Super. at 308.]
    In making this determination, a court must engage in "a
    critical evaluation of the prevailing circumstances including 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) (citing 
    Newburgh, supra
    , 88 N.J. at 545).       Thus, upon a
    showing the child has reached the age of majority, the proponent
    of emancipation satisfies the prima facie showing, shifting the
    burden to the opponent of emancipation to show there is a basis
    to continue   support.   Filippone, 
    supra, 304 N.J. Super. at 308
    .
    We have held that a child's attendance in postsecondary
    education may be a basis to delay emancipation and continue
    support.   See Patetta v. Patetta, 
    358 N.J. Super. 90
    , 93-94 (App.
    Div. 2003); Keegan v. Keegan, 
    326 N.J. Super. 289
    , 295 (App. Div.
    1999).   In addition to child support, financially capable parents
    may be required to contribute to the higher education of children
    11                          A-1476-15T2
    who are qualified students.      In Newburgh, our Supreme Court
    identified twelve non-exhaustive factors a court should consider
    when deciding a claim by one parent for contribution to the costs
    of a child's higher education, namely,
    (1) whether the parent, if still living with
    the child, would have contributed toward the
    costs of the requested higher education; (2)
    the effect of the background, values and goals
    of the parent on the reasonableness of the
    expectation of the child for higher education;
    (3) the amount of the contribution sought by
    the child for the cost of higher education;
    (4) the ability of the parent to pay that cost;
    (5)   the   relationship   of   the   requested
    contribution to the kind of school or course
    of study sought by the child; (6) the
    financial resources of both parents; (7) the
    commitment to and aptitude of the child for
    the requested education; (8) the financial
    resources of the child, including assets owned
    individually or held in custodianship or
    trust; (9) the ability of the child to earn
    income during the school year or on vacation;
    (10) the availability of financial aid in the
    form of college grants and loans; (11) the
    child's relationship to the paying parent,
    including mutual affection and shared goals
    as well as responsiveness to parental advice
    and guidance; and (12) the relationship of the
    education requested to any prior training and
    to overall long-range goals of the child.
    [
    Newburgh, supra
    , 88 N.J. at 545.]
    No one factor is alone determinative.    
    Ibid. 12 A-1476-15T2 In
    a later opinion, our Supreme Court directed that courts
    "should balance the statutory criteria of N.J.S.A. 2A:34-23(a)2
    and    the   Newburgh    factors,   as    well   as   any   other    relevant
    circumstances, to reach a fair and just decision whether and, if
    so, in what amount, a parent or parents must contribute to a
    child's educational expenses."           Gac v. 
    Gac, supra
    , 186 N.J. at
    543.    Furthermore,
    the factors set forth in Newburgh . . .
    contemplate that a parent or child seeking
    contribution towards the expenses of higher
    education will make the request before the
    educational expenses are incurred.    As soon
    as practical, the parent or child should
    communicate with the other parent concerning
    the many issues inherent in selecting a
    college.   At a minimum, a parent or child
    seeking contribution should initiate the
    application to the court before the expenses
    are incurred. The failure to do so will weigh
    heavily against the grant of a future
    application.
    [Id. at 546-47.]
    Because   these   issues   are    fact-sensitive,    courts   must    be
    cautious when making these rulings without an evidentiary hearing
    where there are material facts in dispute.            See Hand v. Hand, 
    391 N.J. Super. 102
    , 105 (App. Div. 2007) (indicating that where facts
    2
    N.J.S.A. 2A:34-23(a) sets forth additional factors to consider
    "[i]n determining the amount to be paid by a parent for the support
    of the child and the period during which the duty of support is
    owed[.]"
    13                                A-1476-15T2
    are disputed or depend on credibility evaluations, a plenary
    hearing is required); see also Tretola v. Tretola, 
    389 N.J. Super. 15
    , 20 (App. Div. 2006) (reversing an emancipation motion and
    requiring a plenary hearing because the court failed to recognize
    disputed material facts and "evidence beyond the motion papers
    necessary   for   resolution   of   the   matter")   (citation   omitted);
    
    Conforti, supra
    , 128 N.J. at 322 (holding that a plenary hearing
    is necessary when there remains "contested issues of material fact
    on the basis of conflicting affidavits") (citation omitted).
    Here, the court did not conduct an evidentiary hearing and
    decided the emancipation and college contribution issues solely
    on the parties' conflicting certifications, without resolving the
    discrepancies raised during oral argument.           As a result, several
    important issues remained unresolved.       Further, the court's ruling
    includes no consideration of the Newburgh factors as required
    under the PSA and caselaw. Specifically, the court never addressed
    defendant's financial ability to make contributions or J.C.'s
    actual   education   expenses.      The   court   never   verified    J.C.'s
    financial need or annual income.          The court never explored the
    availability of financial aid or the relationship between the
    requested contribution to the course of study or kind of school
    selected.
    14                               A-1476-15T2
    The court concluded that the NASCAR Tech program constituted
    post high school education as prescribed in the PSA without proofs
    detailing the programs of study, J.C.'s aptitude for them, or
    transcripts encompassing courses or credits.       Further, the court
    determined   that   J.C.'s   continued   student   status    forestalled
    emancipation despite defendant's assertion that the program, in
    fact, concluded in 2013 and plaintiff's limited proofs identifying
    an anticipated completion date.
    In ordering defendant to contribute only prospectively to
    J.C.'s education expenses, the court concluded that defendant was
    never consulted prior to J.C.'s enrollment based on plaintiff's
    failure to produce any documentary evidence supporting her claim
    to the contrary.    However, because defendant did not specifically
    dispute that claim and acknowledged J.C.'s enrollment in the NASCAR
    Tech program in October 2012, limiting the contribution to future
    education expenses appears to be unsubstantiated.           Further, the
    court's ruling includes no determination of the precise amount of
    defendant's contribution as required by the PSA and Gac.
    We have held that "[d]isputes of material fact should not be
    resolved on the basis of [written] certifications nor in reliance
    upon ambiguous terms in a property settlement agreement." Palmieri
    v. Palmieri, 
    388 N.J. Super. 562
    , 564 (App. Div. 2006) (citing
    
    Conforti, supra
    , 128 N.J. at 328-29).        We agree with defendant
    15                             A-1476-15T2
    that    the   information   provided   to   the   court   was   "woefully
    inadequate" to resolve the facts in dispute and to justify the
    court's rulings.    As such, a plenary hearing is necessary to guide
    the court in reaching an appropriate resolution of the issues.
    Reversed and remanded for further proceedings consistent with
    this opinion.    We do not retain jurisdiction.
    16                              A-1476-15T2