D.N. VS. T.G. (FM-07-0608-15, ESSEX COUNTY AND STATEWIDE) ( 2019 )


Menu:
  •                                 NOT FOR PUBLICATION WITHOUT THE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-4839-16T2
    D.N.,
    Plaintiff-Respondent,
    v.
    T.G.,
    Defendant-Appellant.
    ____________________________
    Submitted January 23, 2019 – Decided February 15, 2019
    Before Judges Rothstadt and Natali.
    On appeal from Superior Court of New Jersey,
    Chancery Division, Family Part, Essex County, Docket
    No. FM-07-0608-15.
    T.G., appellant pro se.
    D.N., respondent pro se.
    PER CURIAM
    Defendant T.G.1 appeals from the Family Part's May 24, 2017 order that
    required him to pay $52,661.47 in support arrears and sanctions and 40% of his
    children's college expenses. On appeal, defendant argues that the court failed to
    properly consider the Newburgh factors in establishing his obligation to pay for
    his children's college expenses and incorrectly determined his ability to pay
    amounts previously ordered by the court. After conducting a thorough review
    of the record in light of the arguments raised on appeal, we affirm in part, reverse
    in part, and remand for further proceedings based on the existing record.
    I.
    This appeal represents the latest chapter in this heavily litigated and
    contentious matrimonial matter. We discuss the complicated procedural history
    because it relates to the May 24, 2017 order, and necessarily informs our
    decision.
    On September 27, 2005, the court entered a Dual Judgment of Divorce
    (JOD), which dissolved the twelve-year marriage between plaintiff D.N. and
    defendant, and incorporated a Property Settlement Agreement (PSA). Article I
    of the PSA addressed child custody, visitation, and support for the parties' two
    1
    We refer to the parties and their children by initials to protect their privacy
    interests, and to maintain confidentiality.
    A-4839-16T2
    2
    children, S.G. and H.G. Pursuant to section 1.3, the parties agreed that plaintiff
    would pay the first $250 per child, per year in unreimbursed medical expenses
    and defendant would pay the next $1000. Section 1.6 required defendant to pay
    50% of the cost of religious education for the children, up to a total cost of $3500
    per year. With regard to the children's college expenses, section 1.11 states that
    "[t]he parties agree that college education shall abide the event and shall be
    governed by the existing New Jersey law."
    Over the next decade, the parties engaged in unrelenting post-judgment
    motion practice and related litigation, primarily involving allegations of sexual
    abuse by defendant, and his failure to comply with the financial obligations set
    forth in the PSA. Specifically, on September 6, 2005, plaintiff filed a Title Nine
    abuse and neglect complaint, pursuant to N.J.S.A. 9:6-1(e) and 9:6-8.21(c)(3),
    against defendant alleging that he had sexually abused their children. The Title
    Nine action, in which the Division of Youth and Family Services (Division)
    A-4839-16T2
    3
    ultimately intervened,2 lasted nearly two years, during which time defendant was
    precluded from seeing or communicating with S.G. and H.G. 3
    On February 15, 2006, plaintiff "knowingly, willingly and voluntarily,"
    stipulated that he abused or neglected S.G. by showering nude with him.
    Specifically, defendant admitted to "using poor boundaries and may have placed
    the minor at risk for emotional harm." The Title Nine trial commenced a few
    months later. In light of defendant's stipulation, the court denied plaintiff's
    request for a plenary fact-finding on the other allegations of abuse and neglect.
    Instead, the court heard from eleven witnesses over the course of sixteen days
    in order "to reach a dispositional determination concerning [defendant's] future
    contact with S.G. and H.G."
    2
    Pursuant to L. 2012, c. 16, effective June 29, 2012, the name of the Division
    of Youth and Family Services was changed to the Division of Child Protection
    and Permanency.
    3
    In July 2008, defendant filed a lawsuit against plaintiff, her father and mothe r,
    and three psychologists, who he alleged falsely claimed that he sexually abused
    the children. After the trial court dismissed the complaint, we affirmed the
    dismissal as against plaintiff, her parents, and one psychologist, but reversed
    and remanded for further proceedings with respect to the remaining two
    psychologists. T.G. v. Kaplan, No. A-5523-08 (App. Div. March 23, 2011).
    Because the parties have not included a copy of the transcript from the Title
    Nine matter in the record, we base our recitation of the facts from our
    unpublished opinion.
    A-4839-16T2
    4
    In its oral decision, the court concluded that defendant "had inflicted
    emotional harm on the children by exposing them to his naked body." The court
    determined that H.G. suffered from "posttraumatic stress disorder" and that
    "both children have suffered and are continuing to suffer from emotional distress
    caused by the[ir] father exposing himself to them." The court stated that it
    accepted the findings "that these children were sexually abused by their father
    . . . ."
    Despite the court's findings that defendant's conduct caused harm to the
    children, the court agreed with the Division's and Law Guardian's
    recommendation that the children should undergo therapy with a goal toward
    resuming parenting time with him. By mid-2007, defendant was allowed to see
    his children again, through supervised visits, and according to defendant his
    "relationship with [his] children had seemingly been restored" by late-2008.
    Thereafter, plaintiff moved to Long Island, New York, and a new parenting
    agreement was signed in 2009, granting plaintiff full residential custody and
    allowing defendant unsupervised parenting time.
    In May 2012, defendant and S.G., then thirteen-years old, got into a
    physical altercation. According to defendant, after he attempted to discipline
    his son for swearing at him and his girlfriend, S.G. attacked him. Defendant
    A-4839-16T2
    5
    maintains he took defensive actions to restrain S.G. by throwing him on a bed
    and holding him down. According to defendant, during the altercation, S.G.
    accused defendant of abusing him, stating "Mom told me you physically abused
    us. That’s why you couldn’t see us." S.G. added, "You hit us all the time."
    Defendant had another altercation involving his children at their B’nai
    Mitzvah on October 5, 2012. Defendant claimed that S.G. approached him at
    the synagogue and told him that neither he, H.G., nor plaintiff wanted him at the
    ceremony. The argument escalated and turned physical, requiring plaintiff's
    then-boyfriend to restrain S.G.
    The next day, defendant cancelled S.G.'s cell phone service and demanded
    the return of a computer he gave to him as a gift. Defendant claims that absent
    a single call with his son in which he informed him that defendant's mother had
    died, he has not spoken to either child since the May 2012 incident.
    In support of his claim that his children have consciously avoided having
    any relationship with him, defendant submitted four text messages he sent to
    H.G. between August 2013 and July 2014, eight text messages he sent to S.G.
    between February 2015 and November 2016, and six emails he sent to H.G. from
    September 2012 to November 2013. During this period, defendant remarried
    and moved to Alabama. Plaintiff contended that defendant had not seen his
    A-4839-16T2
    6
    children since 2012, had not spoken to them, and did not inform them of either
    his marriage or his move to Alabama. Defendant responded that he attempted
    to contact the children but they failed to respond to his emails or text messages,
    and refused to pick up the phone when he called.
    In addition to causing the estrangement between defendant and his
    children, plaintiff maintained that defendant willfully failed to pay his support
    obligations mandated by the PSA. Accordingly, she filed a motion to enforce
    the PSA and hold defendant in violation of litigant’s rights for failing to pay for
    child care, religious education costs, and other expenses. On April 24, 2014, the
    court granted plaintiff's motion, and required defendant to pay outstanding child
    care and Hebrew school expenses.
    Shortly thereafter, plaintiff filed a motion to compel defendant to
    reimburse plaintiff for unreimbursed medical expenses. In response, defendant
    filed a motion for reconsideration of the April 24, 2014 order. On July 17, 2014,
    the court granted plaintiff’s motion, ordered defendant to reimburse plaintiff for
    $6049.16 in medical expenses incurred on behalf of the children, and directed
    him to replenish the balance of the court-ordered bank account utilized for
    unreimbursed medical expenses. In a separate July 17, 2014 order, the court
    denied defendant's motion for reconsideration and his request to recalculate his
    A-4839-16T2
    7
    unreimbursed medical expense obligation. We affirmed the court's July 17,
    2014 orders in an unpublished opinion.
    As a result of defendant's continued non-compliance with his obligations
    under the PSA and the court's prior orders, plaintiff file a third enforcement
    motion. In a February 6, 2015 order, the court found defendant in violation of
    litigant’s rights under Rule 1:10, and ordered defendant to pay plaintiff, pursuant
    to the April 24, 2014 order: 1) $12,821.26 for child care expenses; 2) $9661.75
    for Hebrew School expenses; 3) $8385 for counsel fees; and 4) $2100 in
    sanctions.
    Defendant was also ordered to pay, pursuant to the July 17, 2014 order,
    $6549.16 for unreimbursed medical expenses incurred on behalf of the parties'
    children, plus $500 in sanctions, and $400 in sanctions for his failure to maintain
    a court-ordered minimum balance of $2500 in his bank account for
    unreimbursed medical expenses. The court ordered defendant to make these
    payments by February 20, 2015.
    When defendant failed to comply with the court’s February 6, 2015 order,
    plaintiff requested that the court issue a bench warrant for defendant’s arrest.
    Defendant responded by filing a cross-motion for reconsideration of the
    February 6, 2016 order. On April 10, 2015, the court entered an order denying
    A-4839-16T2
    8
    defendant's motion for reconsideration and scheduling an ability to pay hearing
    for June 2, 2015, to determine if defendant had "funds to pay arrears as set forth
    [i]n the parties' February 6, 2015 order." The hearing was not held as scheduled.
    On March 23, 2016, plaintiff filed a motion to compel defendant to pay
    his pro rata share of the children’s college expenses.          After hearing oral
    arguments, the court issued an August 19, 2016 order that directed the parties to
    appear at a plenary hearing: 1) "to analyze the facts of this case under Newburgh
    v. Arrigo, 
    88 N.J. 529
     (1982) to determine whether defendant has a legal
    obligation to contribute to the children's college expenses;" and 2) "to analyze
    the parties' financial status to determine [their] pro rata share[s] of the college
    expenses." On February 2, 2017 and February 24, 2017, the court held a plenary
    hearing that addressed both defendant's ability to pay his support arrears, and
    his obligation to contribute to his children's college expenses .
    At the plenary hearing, plaintiff testified that as of the date of the hearing,
    she was earning a gross salary of $116,000 per year, and would be earning
    $118,000 per year as of her next paycheck. She testified as to her children's
    finances. Plaintiff explained that as of September 30, 2016, the balances of her
    A-4839-16T2
    9
    children's 529 accounts4 were $2625.12 and $9782.84 for S.G.'s two accounts
    and $16,700.75 for H.G's account. She stated that S.G's savings account had a
    balance of $33,122.92, and his Vanguard account had a balance of $12,204.62.
    She testified that H.G's bank account had a balance of $25,712.16 and her
    Vanguard account had a balance of $13,542.54.         Plaintiff claimed that the
    children's money was never intended to be used for their college expenses, as
    she and defendant agreed that they would pay for their children’s college
    educations. In this regard, she testified that the 529 accounts were established
    for this very purpose.
    Defendant called Linda Bruyette, CPA, his personal accountant and the
    CFO of his company, NorthStar Litigation (NorthStar), as a witness.           She
    testified that NorthStar had a "decent cash flow" in 2012, but it had declined in
    2013, 2014, and 2015. In addition, she stated that NorthStar's revenue dropped
    from 2012 to 2016, and defendant and his partner make half the income they
    once made. She testified that both defendant and his partner stopped taking a
    weekly salary, and only received distributions when cash flow was sufficient.
    4
    Established pursuant to 
    26 U.S.C.A. § 529
    , these accounts provide tax
    advantages to promote individuals to save for college expenses.
    A-4839-16T2
    10
    Bruyette also stated that NorthStar provided loans to defendant, totaling
    $2500 per month, to address a significant Internal Revenue Service (IRS) debt,
    and to satisfy his child support payments. Defendant was challenging his IRS
    liability, and Bruyette testified that defendant and the IRS entered into an "offer
    of compromise," whereby defendant's payment are "put on hold" during the
    appeal process.
    Defendant testified as to his personal finances and explained that although
    his case information statements in 2013 and 2014 listed his salary as $210,000,
    he did not earn that amount because, as Bruyette stated, he stopped taking
    paychecks when NorthStar's cash flow was insufficient. He explained that he
    failed to comply with the court's prior orders because he did not have the money
    to comply. Defendant conceded, however, that during the litigation, he valued
    NorthStar as high as $500,000, and at the time plaintiff sought contribution for
    the children's college expenses, he valued it at approximately $100,000.
    Defendant also testified regarding his personal expenses to rebut
    plaintiff's claims that he was living extravagantly and had the means to pay his
    support obligations but willfully elected not to pay those court-ordered costs.
    Defendant acknowledged that he spent approximately $13,000 for his wedding
    in December 2013, $4000 for his honeymoon in January 2014, and $1100 for a
    A-4839-16T2
    11
    suit and shoes in October and November 2013. However, he maintained that his
    move to Alabama reduced his monthly expenses and testified that his current
    $1975 monthly rent was significantly less than what he was paying in New
    Jersey. Finally, defendant testified to spending a modest $28 per month on
    haircuts at Life Time Spa and approximately $21 per week on alcohol for
    personal use in 2014 and 2015.
    Defendant also sought to call his business partner, Justin Cooper, as a
    witness to testify regarding the financial state of NorthStar, and their incomes.
    On February 17, 2017, the court precluded Cooper’s testimony, concluding it
    was "cumulative and/or irrelevant." The court noted that Cooper's proffered
    testimony with respect to NorthStar's revenues and expenses, the partners'
    compensation, and loans to defendant was already provided by Bruyette, and
    defendant failed to demonstrate that Cooper possessed any relevant financial
    information that he did not have access to himself. Additionally, the court noted
    that plaintiff's application to compel defendant to pay his support arrears had
    been pending for two years, mostly due to adjournments at defendant's request,
    and "Cooper's proffered testimony would necessarily cause further undue delay
    without sufficient probative value."
    A-4839-16T2
    12
    The court entered an order on May 22, 2017, and an amended order and
    statement of reasons on May 24, 2017. The court found that defendant "has the
    ability to pay his outstanding arrears and monetary sanctions totaling
    $52,661.47, pursuant to the . . . February 6, 2015 [order]" and ordered him to
    pay plaintiff $3000 per month towards that amount until satisfied.            In its
    accompanying statement of reasons, the court noted defendant’s "excessive or
    unnecessary" expenditures, including pet expenses and monthly gym
    membership costs. The court explained that defendant had the ability to borrow
    money from NorthStar and had additional potential income from his 30%
    ownership stake in a court reporting company, NorthStar Deposition Services.
    Further, after applying the Newburgh factors, the court ordered defendant
    to pay "40% of the children’s college expenses after the application of the
    children’s 529 accounts, available grants, scholarships, and any other available
    financial aid." These factors include: "(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
    A-4839-16T2
    13
    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 . . . ;
    (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 the overall
    long-range goals of the child." Newburgh, 
    88 N.J. at 545
     (1982). The court
    explained that "[b]ased on the financial information presented," defendant can
    only "reasonably afford the cost of a state school tuition" and limited defendant's
    tuition obligation to that charged by the State University of New York.
    With respect to Newburgh factor one, the court concluded that the parties
    intended to pay for the children's college expenses, as evidenced by their
    opening of 529 accounts. The court further determined that if defendant was
    still residing in the marital home, he would have contributed to those costs. As
    to factor two, the court noted that both parties were college educated and their
    parents contributed toward their college expenses, and, therefore, "the
    background values and goals of the parties establish the reasonableness of the
    A-4839-16T2
    14
    children's expectations" that plaintiff and defendant would contribute toward
    their college expenses.
    Under factor three, the court noted the balance in S.G.'s and H.G.'s 529
    accounts, and their ability to obtain scholarships and grants which would reduce
    the financial burden on each parent, and concluded that it was reasonable for
    each parent to contribute a pro rata share of the college expenses. With respect
    to factors four, five and six, the court determined that defendant had the ability
    "to make some contribution" toward college expenses but plaintiff had a "greater
    ability." It also noted that the children are seeking assistance from their parents
    to attend four year colleges and each parent has the financial resources to
    contribute.
    As to factor seven, the court determined that H.G. and S.G. have the
    aptitude and commitment to attend college as reflected by their high
    standardized test scores. In assessing factors eight, nine and ten, the court
    acknowledged that "both children have financial resources," and noted the
    significant balances in their 529, Vanguard, and bank accounts. The court also
    recognized that "both children have the ability to earn income during the school
    year, as well as during vacations" and have the ability to seek financial aid.
    A-4839-16T2
    15
    With respect to factor eleven, the court noted the prior abuse and neglect
    proceedings and concluded that the lack of relationship between defendant and
    the children "is not something that should be used to penalize them." The court
    concluded that there was insufficient evidence presented by the parties to make
    a finding as to factor twelve.
    On appeal, defendant argues that the court failed to properly consider
    Newburgh factors three, eight, nine, ten, and eleven. 5 Defendant also contends
    the court failed to follow its February 17, 2017 order by permitting evidence
    regarding pre-2014 expenses as proof of his current ability to pay. Finally,
    defendant asserts that the court committed error "by ignoring the actual evidence
    and assuming facts not in evidence."
    With respect to his first point, we agree with defendant that the court's
    May 24, 2017 order and statement of reasons failed to correlate the court's
    factual findings to all of the Newburgh factors, and specifically factors four,
    eight and nine. Further, the court failed to make factual findings regarding each
    5
    Defendant does not take issue with the court's findings and legal conclusions
    related to factors one, two, five, six, and seven. As such, we consider any
    challenges to the court's findings as to those factors waived. Jefferson Loan Co.
    v. Session, 
    397 N.J. Super. 520
    , 525 n.4 (App. Div. 2008) (an issue not briefed
    on appeal is deemed waived).
    A-4839-16T2
    16
    child's college expenses, and did not sufficiently explain the basis for requiring
    defendant to pay 40% of those costs.
    However, we disagree with defendant as to Newburgh factors three, ten,
    and eleven, and conclude the court's findings were supported by substantial,
    credible evidence. Accordingly, we remand for the court to make additional
    factual findings as to factors four, eight and nine, and the extent of defendant's
    contribution to college expenses. We find no merit in defendant's remaining
    arguments.
    II.
    Our review of a trial court's factual findings is limited. We will not disturb
    a trial court's fact-finding if supported by "adequate, substantial, credible
    evidence." Cesare v. Cesare, 
    154 N.J. 394
    , 412 (1998). Our deference is
    particularly appropriate "when the evidence is largely testimonial and involves
    questions of credibility" because the trial judge who has observed and heard
    witnesses can better assess veracity. 
    Ibid.
     (quoting In re Return of Weapons to
    J.W.D., 
    149 N.J. 108
    , 117 (1997)). Further, we recognize a family court's
    "special jurisdiction and expertise." Id. at 413. However, we will reverse a trial
    court's findings that are "so manifestly unsupported by or inconsistent with the
    competent, relevant and reasonably credible evidence as to offend the interests
    A-4839-16T2
    17
    of justice." Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 
    65 N.J. 474
    , 484 (1974)). In other words, reversal is appropriate when the court's
    factual findings "went so wide of the mark that a mistake must have been made."
    N.J. Div. of Youth & Family Servs. v. M.M., 
    189 N.J. 261
    , 279 (2007) (quoting
    C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 
    233 N.J. Super. 65
    , 69 (App.
    Div. 1989)).
    We exercise broader review with respect to a "trial judge's evaluation of
    the underlying facts and the implications to be drawn therefrom." 
    Ibid.
     (quoting
    In re Guardianship of J.T., 
    269 N.J. Super. 172
    , 188-89 (App. Div. 1993)). We
    are compelled to reverse "if the court ignores applicable standards . . . ." Gotlib
    v. Gotlib, 
    399 N.J. Super. 295
    , 309 (App. Div. 2008). Finally, we owe no special
    deference to the trial judge's "interpretation of the law and the legal
    consequences that flow from established facts . . . ." Manalapan Realty, L.P. v.
    Twp. Comm. of Manalapan, 
    140 N.J. 366
    , 378 (1995).
    In determining whether a parent should be required to contribute to a
    child's college costs, a trial court must balance the statutory criteria of N.J.S.A.
    2A:34-23(a), the Newburgh factors, and any other relevant facts. Gac v. Gac,
    
    186 N.J. 535
    , 543 (2006). Once it is established that “college contribution is
    A-4839-16T2
    18
    warranted, the inquiry turns to the amount of the financial obligation itself.”
    Ricci v. Ricci, 
    448 N.J. Super. 546
    , 581 (App. Div. 2017).
    Defendant primarily argues that the court committed error in its finding
    regarding factor eleven because it did not "properly consider the parent/child
    relationship in determining defendant's obligation to contribute toward the
    children's college expenses." We disagree and conclude that the judge's findings
    under Newburgh factor eleven were not "so wide of the mark that the judge was
    clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 
    191 N.J. 59
    , 605
    (2007).
    The court's conclusion that the children should not be penalized for their
    lack of relationship with defendant is supported by substantial, credible
    evidence. That evidence included defendant's prior stipulation that he abused
    and neglected his son and plaintiff's testimony that defendant moved to Alabama
    and remarried without informing his children, repeatedly failed to comply with
    support orders, and maintained no relationship with either child.
    While defendant relied on a series of text messages and emails to his
    children from September 2012 to November 2016, and uncorroborated attempts
    to reach his children by telephone, there is no evidence in the record that
    defendant sought to enforce his visitation rights, or otherwise attempted to
    A-4839-16T2
    19
    engage in therapy to restore the relationship with his children during the past
    five years. While both children certainly disengaged from their father, in light
    of defendant's sporadic to non-existent role in their lives over the last five years,
    we cannot conclude that the court abused its discretion in requiring defendant to
    contribute to his children's college expenses.
    Additionally, even assuming the cause of the alienation was as defendant
    contends, as the trial court explained, "[a] relationship between a non-custodial
    parent and a child is not required for the custodial parent or the child to ask the
    noncustodial parent for financial assistance to defray college expenses." Gac,
    
    186 N.J. at 546
    . Rather, factor eleven is one of twelve factors that a court must
    consider.
    We reach a similar conclusion with respect to the court's findings as to
    Newburgh factors three and ten.        With respect to those factors, defendant
    contends that despite the court's acknowledgment that his children "have
    significant financial resources, can seek financial aid and can get a job," the
    court's order does not require his children to "apply for aid whatsoever."
    Defendant's position is contradicted by the explicit terms of the May 24, 2017
    order which sequences his contribution to be "after the application of the
    children's 529 accounts, available grants, scholarships, and any other available
    A-4839-16T2
    20
    financial aid." Thus, defendant's contribution is not triggered until the children
    utilize the funds in their 529 accounts, and apply any funds obtained by way of
    grants, scholarships and financial aid.
    However, with respect to factors four, eight and nine, we conclude
    additional fact finding is necessary. As to factor four, the court determined that
    defendant had the ability "to make some contribution" to college expenses, and
    quantified that obligation at 40% of those expenses. However, the court did not
    determine the gross amount of the college costs, or the net amount of those
    expenses, after application of the children's 529 accounts, grants, scholarships
    and available financial aid, that defendant was expected to pay. Without that
    information, or at a minimum, a reasonable estimate of those gross and net
    expenses, we are unable to conclude that the court's decision that defendant had
    the ability to pay 40% of those expenses was supported by substantial, credible
    evidence.
    Further, we are unable to discern from the court's statement of reasons
    why it set defendant's contribution at 40%, as opposed to some other percentage.
    In this regard, the court did not explain if that percentage was grounded in the
    parties' current income or assets. And, while we acknowledge that the court
    attempted to minimize the financial impact on defendant by limiting, in part, his
    A-4839-16T2
    21
    percentage contribution to the cost of tuition charged by the State University of
    New York, as opposed to the cost of tuition at a private college, without an
    explanation of how the court reached its conclusion that defendant is able to pay
    40%, the fact that the tuition expenses may be less than a private college does
    explain why the court elected 40% in the first instance and why that percentage
    is consistent with the principles underlying Newburgh.
    We similarly conclude that additional factual findings are necessary to
    support the court's conclusions regarding Newburgh factors eight and nine.
    With respect to factor eight, while plaintiff testified that the children's Vanguard
    funds and saving accounts came from inheritances and gifts and "were never
    intended for the children to spend on their college education," the court made
    no findings as to these accounts, other than acknowledging their existence. As
    to factor nine, although the court concluded that both children were capable of
    earning income during the school year, and while on vacations, the court's
    statement of reasons, and accompanying order, make no connection between this
    finding and the court's conclusion that defendant pay 40% of the children's
    college expenses.
    On remand, the court should reconsider Newburgh factor four in light of
    the actual, or reasonably estimated, college expenses for each child. The court
    A-4839-16T2
    22
    should also detail the factual and legal basis for any percentage contribution
    ascribed to plaintiff and defendant. Further, under factors eight and nine, the
    court should determine a reasonable estimate of the amount each child is capable
    of earning, and what amount, if any, they should contribute to their college
    expenses. Additionally, the court should make relevant findings regarding the
    children's Vanguard and savings accounts to determine if those funds should be
    utilized to defray their college expenses.
    III.
    Turning to defendant's second point on appeal, we reject his claim that the
    court committed error by "not following its previous order regarding the central
    issue of the hearing." The scope of the plenary hearing was detailed in the
    court's April 10, 2015 and August 19, 2016 orders. Among the issues before the
    court was whether defendant's failure to pay his support arrears was willful or
    excusable.     During the plenary hearing, the court considered evidence of
    defendant's personal bank statements and determined that defendant could have
    substituted many of his purchases with "less costly alternatives." The issue of
    defendant's personal expenditures was directly relevant to defendant's
    willfulness.
    A-4839-16T2
    23
    Further, the court's decision to preclude Cooper from testifying was based
    on the court's fully supported finding that Cooper's testimony was duplicative
    of Bruyette's testimony. In any event, the court permitted defendant to testify
    extensively regarding his income and expenses, which he described as
    reasonable and largely business related.
    IV.
    Finally, we reject defendant's claim that the court "ignor[ed] the actual
    evidence and assum[ed] facts not in evidence." In support of this argument,
    defendant maintains the court incorrectly concluded that he had the capacity to
    earn additional income based on his 30% ownership interest in NorthStar
    Deposition Services, as there was no evidence that he ever received income from
    that company. Further, defendant argues that there was no evidence to support
    the court's finding that he had the ability to borrow funds from NorthStar, as he
    had not "borrowed money from the company since 2014" and it "no longer has
    the ability to lend money."
    "The issue to be decided at an ability to [pay] hearing closely parallels
    determinations Family Part judges make on a daily basis concerning the
    evaluation of financial information provided through documents and testimony,"
    in an "attempt[] to achieve a fair resolution of the economic issues of parties
    A-4839-16T2
    24
    going through the emotionally charged process of divorce."           Schochet v.
    Schochet, 
    435 N.J. Super. 542
    , 550-51 (App. Div. 2014). The hearing's purpose
    is "simply to determine whether that failure was excusable or willful," or
    essentially, if "the obligor was able to pay and did not." 
    Id. at 548
    .
    Here, the court's factual finding regarding defendant's willful non-
    compliance and his ability to pay his arrears is fully supported by the record.
    The court reached its conclusion after reviewing defendant's business and
    personal expenditures and characterized certain of those expenditures, such a s
    his "pet expenses, . . . high end clothes and shoe purchases, . . . gym
    memberships . . . , and his honeymoon to Punta Cana," as "excessive or
    unnecessary."
    Further, the court explained that defendant regularly borrowed money to
    make significant monthly payments to the IRS, and correctly noted that due to
    the "offer and compromise" between defendant and the IRS, his payment
    obligations were currently suspended.       The court correctly observed that
    defendant could have continued to borrow money from NorthStar, which he
    admitted had a value of at least $100,000, but chose not to. Based on these
    actions, the court concluded that defendant "triaged" which debts were important
    to pay.
    A-4839-16T2
    25
    To the extent the court erroneously concluded that defendant received
    income from NorthStar Deposition Services, we find any error harmless as there
    was sufficient, independent support in the record for the court's findings that
    defendant had the ability to pay his arrears. Further, defendant has not claimed
    on appeal that he is unable to pay the $3000 per month ordered by the court to
    satisfy his arrears based on his current income. As such, whether NorthStar
    Deposition Services will provide income to defendant in the future is not
    relevant.
    To the degree that we have not specifically addressed any of defendant's
    arguments, we find them without sufficient merit to warrant discussion in a
    written opinion. R. 2:11-3(e)(1)(E).
    Affirmed in part and reversed in part and remanded for further
    proceedings. We do not retain jurisdiction.
    A-4839-16T2
    26