TARA WICKER v. JAMES WICKER (FM-03-0028-13, BURLINGTON COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-1932-20
TARA WICKER,
Plaintiff-Respondent,
v.
JAMES WICKER,
Defendant-Appellant.
_______________________
Submitted September 13, 2022 – Decided October 7, 2022
Before Judges Sumners and Berdote Byrne.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Burlington County,
Docket No. FM-03-0028-13.
Petrelli Previtera, LLC, attorneys for appellant (Sara B.
Cohen, on the brief).
Patricia Ronayne, Esquire, PC, attorneys for respondent
(Jaclyn Kasmaul, on the brief).
PER CURIAM
In this post-judgment dissolution matter, defendant James Wicker appeals
from the trial court's July 27, 2021 order modifying his arrears and support
obligations for his children. He also appeals from the trial court's April 15, 2021
orders amending his child support obligations from two previous orders. The
previous orders include one denying defendant's request to emancipate the
parties' then soon to be twenty-three-year-old daughter and recalculating his
obligation for her, and another order granting plaintiff Tara Wicker's unopposed
motion requesting defendant pay weekly support for their children. Because we
conclude defendant's appeal of the emancipation issue is untimely, we affirm
the trial court's ruling regarding emancipation and the denial of a plenary
hearing. We also affirm the trial court's 2019 decision regarding college
contribution because the appeal is untimely. However, we are constrained to
remand, in part, the trial court's decision regarding the calculation of off -
guidelines child support and financial maintenance for two of the children due
to a lack of specific findings.
Because our ruling is based upon the timing of certain post-divorce
motions, a detailed recitation of the procedural history is warranted. The parties
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share three children born of the marriage, Veronica, 1 age twenty-three as of the
filing of this appeal on March 19, 2021, 2 Maria, age twenty-one on March 19,
2021, and Martha, age twenty on March 19, 2021. The parties were divorced
pursuant to a judgment of divorce (JOD), amended on December 17, 2013,
which incorporated their partial property settlement agreement (PSA). In their
partial PSA, the parties agreed to some of their obligations regarding the support
of their children. The PSA specifically states:
Pursuant to New Jersey case law, the parties' children
shall consult with both parties regarding their choice of
college which will include the cost of attendance to
include tuition, room and board, meal plan, fees, etc.
The children shall be obligated to obtain any and all
scholarships and Stafford loans before determining
each party's respective contributions.
The PSA also provides contribution for the children's medical expenses would
be "based upon the parties' percentage share of income from line six (6) of the
[Guidelines], which shall be determined by the [c]ourt." The remaining issues
were tried and in an amended JOD, the judge calculated child support for all
1
Fictitious names are used to protect the privacy of the parties' children.
2
Defendant filed his initial appeal on March 19, 2021, and filed four subsequent
amended notices of appeal on May 27, July 25, August 21, 2021, and February
28, 2022. The most recent amended notice of appeal from February 28, 2022,
advised, per this court's instruction, the subjects of the appeal are the April 15
and July 27, 2021 orders.
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three children based on the Child Support Guidelines ("Guidelines") 3 and set
defendant's child support obligation for the three children at $382 per week.
That calculation was based on several findings, including plaintiff's gross
weekly income of $593, defendant's gross weekly income of $4,292, defendant's
alimony payment to plaintiff of $1,300 per week, and the number of overnights
the children spent with each parent.
On January 25, 2019, the trial court entered an order requiring the parties
to contribute a total of $15,000 per year per child toward college, with defendant
paying 62% and plaintiff paying 38% in accordance with their percentage share
of income, finding:
[p]laintiff has provided the [c]ourt with the necessary
proofs to satisfy the criteria set forth in the case of
Newburgh v. Arrigo, 88 N.J. 529, 545 (1982), including
[p]laintiff's certification that if both parents were still
living with the children, both would have encouraged
higher education for the parties' children. The parties'
PSA supports that both parents envisioned the
children's college education as part of the parties'
expenses.
3
The child support guidelines are governed by Rule 5:6(A) and set forth in
Appendix IX(A) thereto (collectively, the "Guidelines"). Child Support
Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to
R. 5:6A, www.gannlaw.com (2023). ("The guidelines set forth in Appendix IX
of these Rules shall be applied when an application to establish or modify child
support is considered by the court.").
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On May 28, 2020, plaintiff filed a motion to modify child support for the
parties' two younger daughters and require defendant provide financial support
for Veronica beyond her twenty-third birthday to allow her to complete her final
year of college. In support, plaintiff certified defendant's current child support
obligation did not reflect an upcoming change in circumstances because
Veronica was about to become twenty-three years old, and Maria required an
off-Guidelines4 calculation of child support because she was residing at college.
Plaintiff asserted Veronica required the parties' continued financial
support because she did not have the financial ability to support herself while
finishing her last year of college due to her medical conditions and resulting
learning disabilities. Plaintiff explained Veronica suffers from
Neurofibromatosis Type 1, a genetic disease that causes learning disabilities and
4
The guidelines make clear "If the guidelines are found to be inapplicable in a
particular case, the court should consider the factors set forth in N.J.S.A. 2A:34 -
23 or N.J.S.A. 9:17-53 when establishing the child support award." Child
Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix
IX-A to R. 5:6A, ¶ 3, www.gannlaw.com (2023). Our case law further instructs,
when determining a parent's support obligation for a child attending college,
Family Part judges should "balance the statutory criteria of N.J.S.A. 2A:34 -
23(a) and the Newburgh factors (collectively, "off-Guidelines") 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, 186 N.J. 535, 543 (2006).
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benign tumor growth on nerve pathways, and because she received
accommodations in college due to her learning disabilities, she was expected to
graduate in May 2021. Plaintiff provided exhibits, including Veronica's budget,
statement of liabilities, and both of their 2019 tax returns. Additionally, plaintiff
requested defendant's off-Guidelines child support for Maria, who would be
living away from home while enrolled in college, in the amount of $168 or 62%
of her expenses, attaching supporting exhibits, including Maria's proof of full -
time status at college, monthly budget, statement of liabilities, and 2019 tax
return. Thirdly, plaintiff requested Guidelines-based child support for the
parties' youngest child Martha and included an updated case information
statement (CIS).
In response, defendant filed a cross-motion on June 25, 2020, seeking to
deny plaintiff's motion, emancipate Veronica, and reduce his child support
obligation. In his supporting certification, defendant claimed financial
maintenance of a child beyond the age of twenty-three years old is available
only if the child is completely disabled, he had no obligation to support Veronica
because she was not completely disabled, and her delay in graduating from
college by one year stemmed from a "lack of commitment." Defendant conceded
Martha's child support should be calculated using the Guidelines. He challenged
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plaintiff's income as represented in her CIS, claiming she should be imputed a
full-time salary and her income should include the child support amount she was
receiving. Defendant also challenged various line items in plaintiff's expenses
and the children's budget. Defendant did not attach any exhibits but provided
his updated CIS.
After considering oral arguments on July 10, 2020, the trial court entered
an order on July 17, 2020, denying defendant's request to emancipate Veronica
without prejudice. Citing N.J.S.A. 2A:17-56.67(e), the court stated:
Nothing in this section shall be construed to 1) prevent
a child who is beyond [twenty-three] years of age from
seeking a court order requiring the payment of other
forms of financial maintenance or reimbursement from
a parent as authorized by law to the extent that such
financial maintenance or reimbursement is not payable
or enforceable as child support as defined in . . .
N.J.S.A. 2A:17-56.52.
The court found plaintiff successfully rebutted the presumption of emancipation
by showing Veronica had not yet graduated from college and was still attending,
ordered defendant to contribute 62% of Veronica's and Maria's college and
medical costs, and pay Guidelines-based child support for Martha in the amount
of $399 per week. The court ordered Veronica's support to "terminate upon her
graduation in May of 2021 or her twenty-fourth birthday, whichever comes
first."
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On August 31, 2020, defendant filed a notice of appeal, challenging the
trial court's denial of his cross-motion to emancipate Veronica and the 62%
contribution ordered for Veronica and Maria's college expenses. However, he
failed to prosecute his appeal, and on September 25, 2020, we dismissed without
prejudice for failure to prosecute.
Plaintiff then filed a motion on October 6, 2020, apparently to enforce 5
the July 17, 2020 order by calculating an actual amount to represent defendant's
weekly off-Guidelines child support obligation for Maria and financial
maintenance for Veronica. Plaintiff requested defendant pay child support in
the amount of $168 per week for Maria and $168 weekly financial maintenance
for Veronica. Defendant did not file opposition, yet at oral argument on
December 7, 2020, plaintiff's counsel did not object to defense counsel's
participation. Defense counsel stated he did not "argue against anything"
plaintiff's counsel proposed but sought only clarification as to the finality of the
court's July 17, 2020 denial of his cross motion "without prejudice" to
emancipate Veronica. The trial court confirmed the July 17, 2020 order was a
5
Plaintiff's motion does not specify she is seeking to enforce the previous order
but also does not allege a change in circumstances.
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final order.6 The judge also confirmed with defendant's counsel that his wages
and expenses had not changed since his CIS was submitted.
On February 3, 2021, the trial court entered an order granting all of
plaintiff's requested relief, ordering defendant pay $168 per week in off -
Guidelines child support for Maria and $132 per week in off-Guidelines
financial maintenance for Veronica, effective May 28, 2020. His arrears for
each child were calculated to be $5,880 and $4,620 respectively, and he was
ordered to pay an additional $75 per week toward those arrears. The trial court
also restated, pursuant to the July 17, 2020 order, defendant's financial
maintenance for Veronica's expenses would end upon her graduation in May
6
Because post-judgment motions are allowed in the Family Part after entry of
final judgment, Family Part judges often incorrectly designate a final post -
judgment order "without prejudice" to alert the parties that certain issues, such
as child support, custody, or emancipation, may always be reviewed by a trial
court in the future upon a showing of changed circumstances. Lepis v. Lepis,
83 N.J. 139, 148-49 (1980) ("The equitable authority of a court to modify
support obligations in response to changed circumstances, regardless of their
source, cannot be restricted."). Although the record before us demonstrates the
trial court's July 17, 2020 order was a final order on the issue of Veronica's non -
emancipation, it is incumbent on the parties to request a finality letter from the
trial court if unsure.
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2021, or her twenty-fourth birthday, whichever occurred first. Defendant's
support obligation of $399 per week for Martha remained unchanged.7
This appeal followed. Defendant amended his appeal four times, finally
clarifying he was appealing from the April 15 and July 27, 2021 orders. On
appeal, defendant argues his obligation to support Veronica would continue after
her twenty-third birthday only if she had a "severe mental or physical
incapacity" that caused her continued financial dependence, citing N.J.S.A.
2A:17-56.67(e) and N.J.S.A. 2A:34-23(a). Alternatively, defendant argues the
trial court failed to make the requisite findings of fact and a plenary hearing was
necessary to determine the extent of Veronica's alleged incapacity.
Plaintiff argues the July 17, 2020 order denied defendant's request to
declare Veronica emancipated, not the February 3, 2021, or either of the April
15, 2021 orders and claims defendant's appeal, filed on March 19, 2021, is
untimely because it was not filed within forty-five days of July 17, 2020.
Additionally, plaintiff argues the trial court did not abuse its discretion in
denying the application for emancipation, contending N.J.S.A. 2A:17-
7
On April 15, 2021, the judge sua sponte entered amended orders, reducing
defendant's child support obligation for Martha from $399 to $348 pursuant to
a Guidelines worksheet dated September 10, 2020. Defendant amended his
appeal to include these April 15, 2021 orders.
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56.67(f)(1) permits a court to extend financial maintenance for a reasonable
period of time to permit a child to become self-sufficient, and the court properly
considered Veronica had only one year of college left despite her learning
disabilities and other medical issues. Finally, plaintiff also argues the trial court
made necessary findings and acted within its discretion to decide this issue
without a plenary hearing where no material facts were in dispute due to
defendant's lack of evidence in his competing certification.
We agree defendant's appeal as to the issue of emancipation is untimely.
The orders appealed from amended defendant's child support obligations and
those unrelated modifications did not toll the time to appeal Veronica's non-
emancipation. See Newark v. Fischer, 3 N.J. 488, 492-93 (1950) (recognizing
"where a judgment is amended in a material and substantial respect the time
within which an appeal from such determination may be taken begins to run
from the date of the amendment," however "where an amendment relates solely
to the correction of a clerical or formal error in a judgment it does not toll the
time for appeal").
Although we recognize there may have been some confusion regarding
whether the July 17, 2020 order was a final order given the trial court's insertion
of the words "without prejudice" in the order denying emancipation, the
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defendant's claim that he did not know it was a final order is belied by the record.
On August 31, 2020, defendant filed an appeal of the July 17, 2020 order, thus
understanding it to be a final order. We specifically asked him to provide a
letter of finality, which he failed to do. Consequently, we dismissed his appeal
of the emancipation issue for failure to prosecute. At no time did defendant
attempt to file a motion to extend the time or amended notice of appeal from the
July 17, 2020 order. Instead, months later, he appealed from the April 2021
order and July 27, 2021 orders, unrelated to Veronica's emancipation. His
appeal is now untimely. See Lombardi v. Masso, 207 N.J. 517, 540 (2011)
(citing R. 2:4-1) (recognizing appeal from final judgment "must be filed with
the Appellate Division within forty-five days of its entry").
Defendant's subsequent failure to file opposition to plaintiff's motion that
resulted in the February 3, 2021 order, failure to raise the issue of emancipation
or lack of a plenary hearing in opposition or during oral argument of that motion,
despite being afforded the opportunity to do so, and confirming the financial
information in defendant's CIS submitted in support of the cross motion the year
before, likewise precludes him from raising those issues on appeal now. The
plain error rule applies to arguments raised on appeal not raised before the trial
court. Rule 2:10-2 provides "[a]ny error or omission shall be disregarded by the
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appellate court unless it is of such a nature as to have been clearly capable of
producing an unjust result . . . . The mere possibility of an unjust result is not
enough." State v. Funderburg, 225 N.J. 66, 79 (2016). The plain error standard
requires a determination of "(1) whether there was error; and (2) whether that
error was 'clearly capable of producing an unjust result,' R. 2:10-2; that is
whether there is 'a reasonable doubt . . . as to whether the error led . . . to a result
it otherwise might not have reached.'" State v. Dunbrack, 245 N.J. 531, 544
(2021) (quoting Funderburg, 225 N.J. at 79).
Even if defendant's confusion as to the finality of the July 17, 2020 order
requires us to address the emancipation issue substantively, no error occurred
and defendant's argument is without merit. Although there is a statutory
presumption that a child reaches adulthood at eighteen, see N.J.S.A. 9:17B-3,
and absent a court order to the contrary, a parent's obligation to support a child
automatically ends at age nineteen, see N.J.S.A. 2A:17-56.67(a), it remains
beyond cavil in this State that "[i]n certain situations, parents still have an
economic duty to support children" beyond those ages. Ricci v. Ricci, 448 N.J.
Super. 546, 572 (App. Div. 2017) (quoting Llewelyn v. Shewchuk, 440 N.J.
Super. 207, 215 (App. Div. 2015)). The determination of whether an adult child
is emancipated remains highly fact-sensitive. See Newburgh, 88 N.J. at 543. In
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Ricci, we summarized a trial court's considerations when determining whether
a child is emancipated. We stated:
A determination of emancipation is a legal issue,
imposed when the fundamental dependent relationship
between parent and child ends. It is not automatic and
need not occur at any particular age. When
circumstances surrounding the parent-child
relationship support a finding that the child is
emancipated, the parent relinquishes the right to
custody and is relieved of the burden of support, and
the child is no longer entitled to support.
....
[T]he 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. A [judge]'s emancipation
determination involves 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.
[Ricci, 448 N.J. Super. at 571-73 (citation omitted).]
Applying these legal principles, the trial court concluded in July 2020
Veronica was not emancipated, conducting the required fact-sensitive review of
the parties' and Veronica's circumstances, especially when viewed in concert
with the court's January 25, 2019 decision, from which no appeal was taken. In
the 2019 decision, the trial court considered the Newburgh factors and was
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satisfied plaintiff demonstrated she and defendant were required to contribute to
Veronica and Maria's college expenses. At the time the court considered its July
17, 2020 decision Veronica was due to graduate college in May 2021, only one
year longer than originally expected, despite significant learning disabilities
requiring accommodations and other medical challenges. Defendant conceded
Veronica suffered from medical issues and learning disabilities and did not
provide any evidence to the contrary, either in 2019 or 2020, to support his bald
assertion that Veronica "lacked commitment," and no plenary hearing was
necessary. See Lepis, 83 N.J. at 159 (recognizing whether a material fact is in
dispute depends on affidavits and supporting documents of the parties and
conclusory allegations are not considered). Veronica remaining unemancipated
through May 2021 was supported by substantial, credible evidence in the record
establishing she remained within her parents' sphere of influence and
responsibility and had not yet obtained an independent status of her own.
Defendant's reference to N.J.S.A. 2A:17-56.67(e) and N.J.S.A. 2A:34-23(a) is
misplaced as those sections of the statute apply when a parent or guardian seeks
lifetime, on-going support for a disabled person who has reached age 23.
Plaintiff sought a specific end date for Veronica's support beyond age 23, as
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required by N.J.S.A. 2A:17-56.67, and the trial court set a date certain for the
cessation of that support.
The remaining issues on appeal, the amount of Guidelines calculated
support for Martha, and the off-Guidelines child support/financial maintenance
calculations for Veronica and Maria, are properly before us. Contrary to the
emancipation issue, defendant's child support obligation for Martha in the July
10, 2020 order was amended in a "material and substantial" respect in the April
15, 2021 order. See Newark, 3 N.J. at 492-93 (acknowledging "where a
judgment is amended in a material and substantial respect the time within which
an appeal from such determination may be taken begins to run from the date of
the amendment").
The Guidelines are generally used in cases where child support is being
calculated. R. 5:6(A). When a child support award is calculated in accordance
with the Guidelines, there is a rebuttable presumption the award is correct
"unless a party proves . . . that circumstances exist that make a [G]uidelines -
based award inappropriate in a specific case." Child Support Guidelines,
Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A, ¶ 2,
www.gannlaw.com (2023). The Guidelines aim to ensure fairness in child
support awards. Caplan v. Caplan, 182 N.J. 250, 264-65 (2005).
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Defendant does not argue the court's calculation of Martha's child support
is wrong. Defendant argues, for the first time on appeal, the judge failed to
"determine and outline the incomes of the parties" and did not provide her
Guidelines worksheet in a timely manner. Clearly, the Guidelines worksheet
delineated the incomes of the parties. Defendant confirmed his income at oral
argument on December 7, 2020, and does not demonstrate any reason to disturb
the court's calculation of his child support obligation for Martha. The trial
court's calculation of Martha's Guidelines-based child support is affirmed.
We typically defer to factual findings made by Family Part judges when
they are supported by "'adequate, substantial, credible evidence.'" Cesare v.
Cesare, 154 N.J. 394, 411-12 (1998). "Because of the family courts' special
jurisdiction and expertise in family matters, appellate courts should accord
deference to family court factfinding." Id. at 413. "Minimally adequate fact
finding requires a discussion that demonstrates that the court has heard and
addressed the relevant facts and claims under the controlling legal standards."
Gordon v. Rozenwald, 380 N.J. Super. 55, 76-77 (App. Div. 2005) (citing Bailey
v. Bd. of Rev., 339 N.J. Super. 29, 33 (App. Div. 2001)). "A trial court's rulings
in such matters are discretionary and not overturned unless the court abused its
discretion, failed to consider controlling legal principles[,] or made findings
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inconsistent with or unsupported by competent evidence." Id. at 76. However,
"all legal issues are reviewed de novo." Ricci, 448 N.J. Super. at 565.
"The payment of college costs differs from the payment of child support
for a college student." Jacoby v. Jacoby, 427 N.J. Super. 109, 121 (App. Div.
2012); see Hudson v. Hudson, 315 N.J. Super. 577, 584 (App. Div. 1998)
("Child support and contribution to college expenses are two discrete yet related
obligations imposed on parents."). "The Guidelines are not applicable when
determining the parental obligation for child support of unemancipated college
students . . . ." Raynor v. Raynor, 319 N.J. Super. 591, 614 (App. Div. 1999).
"Although the child support needs are less in certain areas, such as room and
board, arguably other necessary expenses may increase when a child goes to
college." Jacoby, 427 N.J. Super. at 121. The trial court's findings in 2019
regarding college contribution, requiring the parties contribute a total of $15,000
per year per child toward college, with defendant paying 62% and plaintiff
paying 38% in accordance with their percentage share of income cannot be
disturbed (absent a demonstration of changed circumstances in the future)
because this issue was not raised on appeal until now. However, the trial court's
findings regarding the calculation of off-Guidelines child support for both
children are lacking in sufficient findings. Off-Guidelines support cannot, by
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definition, be based merely upon the 62% and 38% percentage share of income,
as that is a line item in the Guidelines-specific calculation. Furthermore, off-
Guidelines support requires the trial court consider which expenses are included
in the college expenses and which are part of child support. 8 Although we
recognize defendant did not oppose the motion that resulted in the February 3,
2021 order regarding off-Guidelines support, the court was required to make
specific findings to support the calculations. "Even litigants who have not
challenged a motion . . . are entitled to a recitation of the reasons for the granting
(or denial) of relief. More significantly, even in an uncontested motion, the
judge must consider whether undisputed facts are sufficient to entitle a party to
relief." Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289, 302 (App. Div. 2009).
Defendant's appeal of Veronica's emancipation and the parties' respective
contributions to college costs for Veronica and Maria is untimely, and we affirm
the trial court's prior orders regarding those issues. We also affirm the trial
court's calculation of Guidelines-based child support for Martha. However, we
conclude the off-Guidelines calculation of child support/financial maintenance
8
When determining a parent's child support obligation for a child attending
college, Family Part judges should "balance the statutory criteria of N.J.S.A.
2A:34-23(a) and the Newburgh factors, as well as any other relevant
circumstances . . . . " Gac, 186 N.J. at 543.
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for Veronica and Maria lack sufficient findings and are constrained to remand
those calculations to the trial court to provide a statement of reasons and cure
any deficiencies, consistent with the financial evidence available to the trial
court at that time. Because defendant had an opportunity to oppose the motion
but did not, and confirmed his financial information at oral argument, both
parties are precluded from submitting new or additional financial evidence for
the calculation of off-Guidelines support for Maria and financial maintenance
for Veronica. Any current changes to financial circumstances are more properly
the subject of a new motion for changed circumstances pursuant to Lepis but
shall not affect the calculation of arrears.
In sum, we affirm the trial court's findings regarding the non-emancipation
of Veronica, the calculation of college contribution for the children, and the
Guidelines-based calculation of child support for Martha. We remand, in part,
for specific findings regarding the off-Guidelines child support calculation for
Maria and off-Guidelines financial maintenance for Veronica and the resulting
arrears.
Affirmed in part, remanded in part. We do not retain jurisdiction.
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