FERNANDO ZAPATA VS. MONICA ZAPATA (FM-16-0252-10, PASSAIC COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-3277-17T3
FERNANDO ZAPATA,
Plaintiff-Appellant,
v.
MONICA ZAPATA,
Defendant-Respondent.
______________________________
Submitted November 7, 2019 – Decided January 29, 2020
Before Judges Suter and DeAlmeida.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Passaic County,
Docket No. FM-16-0252-10.
Weinberger Divorce & Family Law Group, LLC
attorneys for appellant (Jessica Ragno Sprague, on the
briefs).
Dario, Albert, Metz & Eyerman, LLC attorneys for
respondent (Paul Joseph Concannon, on the brief).
PER CURIAM
I.
Plaintiff Fernando Zapata appeals the orders denying his request to
terminate payment for his child's college expenses and child support and
denying reconsideration. He argues he should no longer provide support
because his daughter does not communicate with him. We affirm in part, reverse
in part, and remand for further proceedings. 1
Plaintiff and defendant divorced in 2011. They had two children. Their
son was emancipated in 2014. Their daughter started college in 2014 and was a
full-time college student at all times relevant to this appeal.2
The parties' property settlement agreement (PSA) was incorporated into
their dual final judgment of divorce. It addressed college expenses:
[t]he parties have encouraged their children to obtain a
college degree. In that regard, Fidelity Trust accounts
were established for each child. However, since the
parties were no longer financially able to contribute to
those accounts, the funds were transferred to the
1
Plaintiff filed a motion to strike portions of defendant Monica Zapata's
appendix and to remove any reference to those portions of the appendix in her
brief. Defendant filed a cross-motion to supplement the record and strike
statements in the plaintiff's brief. We denied plaintiff's motion without prejudice
and held defendant's cross-motion for consideration by this panel. In light of
our decision, we now deny both the motion and the cross-motion in their
entirety.
2
She attended a private in-state college and resided there, graduating in May
2019.
A-3277-17T3
2
savings accounts in each child's name. The parties
agree that their children's college education, including
but not limited to: tuition, reasonable transportation
costs, books, school activities/events shall—be funded
in the following order:
a) Any awarded college scholarship and/or
grant;
b) Any work study and/or school loans;
c) The child's college (Fidelity) account
until exhausted;
d) Husband and Wife shall contribute according to their
ability to pay.
Under the PSA, plaintiff agreed to pay child support of $246 per week 3
based on his base salary in 2010 of $121,313 (with a $250 supplement in 2010)
and defendant's base salary of $70,000 (with a bonus of $3000 in 2010 that was
not guaranteed), and "with an alimony payment by [plaintiff] to [defendant]."
The child support obligation "shall continue after the date of the [divorce] and
continue for each child until each child is emancipated."
3
The sole parenting worksheet shows that alimony received by defendant was
included in her side of the calculation.
A-3277-17T3
3
In September 2016, plaintiff filed a motion to terminate child support and
his obligation to pay college education expenses.4 He alleged that beginning in
2015, their daughter stopped all communication with him. She made "vile and
vulgar comments" about him. She did not respond to his letters. He asked to
terminate his support for her because she "clearly want[ed] no further
relationship with [him]." He last saw her on her twentieth birthday in 2016.
This was the second time plaintiff asked the court to terminate his support
obligations. In a series of orders issued on October 21, 2014, the court ordered
plaintiff to continue to pay child support, but emancipated their son, and directed
that a plenary hearing be conducted on the "issues of [the] factors—Newburgh.5"
Another order on the same date required plaintiff and his daughter to attend
counselling, providing:
[t]hat both [p]laintiff and [daughter] shall attend
mandatory/court ordered joint counselling sessions
within ___ days of this order. Failure of [daughter] to
attend such counseling sessions, will be deemed a
waiver of her receipt of any continued future college
payments/support obligations to be made on behalf of
the [p]laintiff.
4
Plaintiff also requested an award of attorney's fees and to adjust the date he
paid alimony. The court denied both. Plaintiff did not appeal the alimony issue.
5
Newburgh v. Arrigo, 88 N.J. 529 (1982).
A-3277-17T3
4
There was never a plenary hearing.
In response to plaintiff's 2016 motion, defendant filed a cross-motion to
enforce plaintiff's payment of child support and college expenses, and for an
award of counsel fees. She requested plaintiff pay two-thirds of their daughter's
college expenses after applying scholarships, grants and federal loans. Their
daughter was a third-year engineering student with excellent grades. Although
scholarships and grants "substantially reduced" her educational expenses,
defendant already had paid $16,907 of their daughter's college, the daughter took
out $21,000 in loans and plaintiff paid $3715.16. Defendant claimed plaintiff's
income was double hers, affording him the ability to contribute more to the
child's education. She also requested plaintiff continue to pay child support
because their daughter was not emancipated.
Defendant blamed plaintiff for the "strain" in his relationship with their
daughter. On her twentieth birthday, plaintiff emailed her: "I thank you very
much for inviting me to participate, but I must ask you not to invite me again as
I cannot afford such expensive dinners, much less when I have to pay for people
I don't even know and people that don't even talk to me." On her twenty-first
birthday, he emailed her saying, in part, this was a "new chapter" and
A-3277-17T3
5
"beginning" for her. "Today you can no longer blame others for what you do ,"
signing off as "[y]our forgotten dad."
Their daughter also certified she attended four joint counselling sessions
with her father in 2014 and 2015. The sessions were jointly terminated by the
counselor, her father and herself because "they were no longer necessary." She
denied terminating the sessions unilaterally. She disputed plaintiff's
representation about a lack of contact with her. He attended Christmas dinner
in 2015 and they exchanged text messages in 2016. She did not refuse to
communicate with her father. Her relationship with him was "broken, but . . .
not destroyed."
Plaintiff agreed there had been five counselling sessions: two with just the
daughter and the counselor; one with just plaintiff and the counselor; and two
with the two of them and the counselor. He denied terminating the sessions.
The counselor indicated it was up to their daughter to continue the sessions, who
did not feel they were needed. He did not agree with her attending private
schools because of the costs. He claimed he was not consulted about her choice
of college. He did not deny the emails he sent her. The parties' son alleged in
his certification that his sister "spurned" attempts by plaintiff to communicate
with her and "refused to participate" in events with him.
A-3277-17T3
6
On December 8, 2017, the court denied plaintiff's request to terminate
support because he failed to show that their daughter did not comply with the
2014 order. It granted defendant's request to require plaintiff to pay two-thirds
of her college expenses because plaintiff did not show any reason to alter this
agreement. The order from 2014 did not require a set number of sessions. The
court found plaintiff did not show a change in circumstances warranting a
change in his support obligation. The only factor he addressed from Newburgh
was the parent-child relationship. There was no requirement of a relationship
for the non-custodial parent to have the obligation to "defray college expenses."
On reconsideration, plaintiff alleged the court did not consider the factors
under Newburgh. He claimed he would not have paid for their daughter's college
given her behavior if the parties were residing together (factor one). The court
had not made the finding that he had the financial ability to pay (factor one and
four). It did not consider the financial resources of the parties, (factor six), nor
the child's ability to earn income or her financial resources (factors eight and
nine). He objected to his daughter enrolling in private school because of the
cost and suggested a public university. Defendant requested contribution toward
the child's college expenses three years after she enrolled. Plaintiff disputed the
A-3277-17T3
7
PSA required him to pay two-thirds of the expenses. The court failed to consider
he was paying alimony.
Plaintiff requested to modify child support, claiming he was still paying
for the emancipated son. He again requested an award of counsel fees.
Defendant opposed reconsideration.
The court denied reconsideration on February 16, 2018, finding it "made
clear, on both the record and written decision" that it considered the factors
enumerated under Newburgh and Gac.6 He "failed to show that termination of
his obligation towards college expenses was warranted."
The court supplemented its decision in March 2018, clarifying it denied
plaintiff's request to modify child support because he had not requested that
relief in his original motion. It denied plaintiff's request to terminate support
for their daughter because the parties agreed to pay college expenses in their
PSA and plaintiff did not show the PSA should be modified or set aside.
On appeal, plaintiff argues the court erred by requiring plaintiff to pay
child support for their daughter because she should have been emancipated and
because the Child Support Guidelines do not apply. He contends the court erred
by ordering him to pay two-thirds of her college expenses. The trial court failed
6
Gac v. Gac, 186 N.J. 535 (2006).
A-3277-17T3
8
to consider the Newburgh factors. In the alternative, plaintiff requests a remand
for a plenary hearing on these issues. He argues the trial court erred by denying
his request for attorney's fees.
II.
We accord "great deference to discretionary decisions of Family Part
judges[,]" Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012), in
recognition of the "family courts' special jurisdiction and expertise in family
matters . . . ." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328,
343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). However, "[a]
trial court's interpretation of the law and the legal consequences that flow from
established facts are not entitled to any special deference." Hitesman v.
Bridgeway, Inc., 218 N.J. 8, 26 (2014) (quoting Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995)). "Reversal is reserved for only
those circumstances in which we determine the factual findings and legal
conclusions of the trial judge went 'so wide of the mark that a mistake must have
been made.'" Avelino-Catabran v. Catabran, 445 N.J. Super. 574, 587 (App.
Div. 2016) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261,
279 (2007)).
A-3277-17T3
9
We review for abuse of discretion the denial of plaintiff's request to
terminate support for his daughter. See Jacoby v. Jacoby, 427 N.J. Super. 109,
116 (App. Div. 2012). In New Jersey, a parent has the duty to support a child
until the child is emancipated. Gac, 186 N.J. at 542. A non-custodial parent,
such as plaintiff, can be required to pay child support for an unemancipated child
and also contribute to the unemancipated child's college expenses. "The
payment of college costs differs from the payment of child support for a college
student." Jacoby, 427 N.J. Super. at 121 (citing Hudson v. Hudson, 315 N.J.
Super. 577, 584 (App. Div. 1998) (providing "[c]hild support and contribution
to college expenses are two discrete yet related obligations imposed on
parents")). Plaintiff's November 2016 motion requested to terminate both
obligations.
Addressing first the issue of college expenses, the parties agreed in their
PSA that they would pay for their children's college education and "contribute
according to their ability to pay." They agreed the children would be
emancipated upon "reaching the age of eighteen . . . years, or the completion of
four . . . academic years of college education, within a period no longer than five
. . . academic years." Their daughter was not emancipated at the time plaintiff
filed to terminate support because she was attending college.
A-3277-17T3
10
A parent's obligation to pay college expenses generally involves a "two-
fold" analysis "for an academically motivated unemancipated child . . . ." Ricci
v. Ricci, 448 N.J. Super. 546, 579 (App. Div. 2017). "First, it demands a
determination of whether equitable or other considerations militate against
parents paying college costs." Ibid. "Second, the court must scrutinize whether
the parents are financially capable of contributing." Ibid.
Plaintiff's only argument against enforcement of the PSA's provision
requiring him to pay college expenses is that he and his daughter have no
relationship. We agree with the trial court that her participation in the
counselling sessions did not require a termination of plaintiff's obligation to pay
college expenses under the October 21, 2014 order. The parties all agreed there
were counselling sessions. That order did not include a specific number of
counselling visits nor say who could end the sessions.
However, the record shows the parties have a different view of their
relationship. Plaintiff contends they have no relationship; their daughter
contends the relationship is broken, but still exists. Plaintiff contends he was
not consulted about her selection to attend the college from which she recently
graduated. She contends he paid the application fee and is a graduate of the
same college. There was an order from 2014 that required a plenary hearing.
A-3277-17T3
11
Even if the trial court could have reevaluated the need for this plenary hearing,
it did not do so despite the parties' disagreement on this issue. The court erred
by not conducting a plenary hearing on this issue. "[W]here the affidavits show
that there is a genuine issue as to a material fact, and that the trial judge
determines that a plenary hearing would be helpful in deciding such factual
issues, . . . a plenary hearing is required." Jacoby, 427 N.J. Super. at 123
(quoting Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976)). We reverse
the orders that denied plaintiff's request to terminate his payment of college
expenses and order a plenary hearing to determine if the parties' relationship
provided an equitable basis not to enforce this portion of the PSA.
The next step in the analysis is to determine the amount of the
contribution, assuming the college support obligation continues under the PSA.
The PSA listed the incomes of the parties as of 2011, but it did not provide they
would pay college expenses based on that income or based on a two-thirds, one-
third allocation. We are constrained to reverse the portion of the prior order that
allocated the responsibility by two-thirds to plaintiff and one-third to defendant.
"[A] trial court 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, to reach a
fair and just decision whether and, if so, in what amount, a parent or parents
A-3277-17T3
12
must contribute to a child's educational expenses." Gac, 186 N.J. at 543.
Although the trial court indicated it had undertaken that analysis, it was not
evident from the record. A court is required to make findings of fact and reach
conclusions of law. See R. 1:7-4(a). On remand, the trial court will need to
evaluate the factors under N.J.S.A. 2A:34-23(a) based on updated financial
information.
The court denied plaintiff's request to modify child support because he
filed a motion to terminate support not to modify it. However, in granting
defendant's cross-motion, the court required plaintiff to continue to make the
same support payments based on a finding there was no change of
circumstances. This was an error. "[T]he child's attendance at college is a
change in circumstance warranting review of the child support amount." Jacoby,
427 N.J. Super. at 113. Also, the parties' son had been emancipated, which was
an additional change in circumstances. Mahoney v. Pennell, 285 N.J. Super.
638, 643 (App. Div. 1995) (providing "[w]here there is no longer a duty of
support by virtue of a judicial declaration of emancipation, no child support can
become due"). Where "circumstances have changed in such a way that [the
support provision] would no longer be equitable and fair, the court . . . remains
A-3277-17T3
13
free to alter the prior arrangement." Lepis v. Lepis, 83 N.J. 139, 161 n.12
(1980).
The existing child support order was based on the Child Support
Guidelines for two children. The Guidelines no longer applied because their
daughter was living away from home at college and the other child was
emancipated. See Jacoby, 427 N.J. Super. at 113 (providing "[r]esort to the
[guidelines] to make support calculations for college students living away from
home is error"). It was error for the court not to redetermine plaintiff's support
obligation based on the statutory factors under N.J.S.A. 2A:34-23(a).
Plaintiff argues the trial court erred by denying his request for attorney's
fees because it did not provide reasons. "Rule 4:42-9(a)(1) authorizes the award
of counsel fees in a family action on a final determination pursuant to Rule 5:3-
5(c)." Gotlib v. Gotlib, 399 N.J. Super. 295, 314 (App. Div. 2008). In
determining the fee award, there are a number of factors to be considered as set
forth in Rule 5:3-5(c). As long as there is support for the determination, the
trial court's factual findings will not be disturbed whether or not every factor is
discussed. See Reese v. Weis, 430 N.J. Super. 552, 586 (App. Div. 2013). The
assessment of attorney's fees is an issue left to the sound discretion of the trial
court. Tannen v. Tannen, 416 N.J. Super. 248, 285 (App. Div. 2010).
A-3277-17T3
14
The court did not explain its decision for denying fees. Rule 1:7-4(a)
requires that in all actions tried without a jury the court "shall, by an opinion or
memorandum decision, either written or oral, find the facts and state its
conclusions of law . . . ." We are constrained to reverse the fee orders for that
reason. Also, in light of our remand, the decision on fees should await the
conclusion of the further proceedings.
Affirmed in part, reversed in part, and remanded for further proceedings.
We do not retain jurisdiction.
A-3277-17T3
15