KAREN RASMUSSEN VS. ROBERT W. RASMUSSEN (FM-02-1134-05, BERGEN COUNTY AND STATEWIDE) (CONSOLIDATED) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-1417-19
A-3369-19
KAREN RASMUSSEN (n/k/a
KAREN KEANEY),
Plaintiff-Respondent,
v.
ROBERT W. RASMUSSEN,
Defendant-Appellant.
_________________________
Argued June 2, 2021 – Decided July 13, 2021
Before Judges Mawla and Natali.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-1134-05.
Damiano M. Fracasso argued the cause for appellant.
Joseph M. Freda, III argued the cause for respondent
(Gomperts Penza McDermott & Von Ellen, LLC,
attorneys; Joseph M. Freda, III, of counsel and on the
briefs).
PER CURIAM
In these appeals, which we consider back-to-back and have consolidated
for the purpose of writing a single opinion, defendant Robert Rasmussen
challenges November 14, 2019 and March 16, 2020 Family Part orders that
required him to reimburse plaintiff Karen Rasmussen for tuition costs and
medical expenses for their children. After considering the parties' contentions
in the context of the record and the applicable legal principles, we vacate the
court's November 14, 2019 order to the extent it required defendant to reimburse
plaintiff for his daughter's fall 2019 college expenses, and remand for further
factual findings. We affirm all remaining and challenged portions of the
November 14, 2019 order. We also vacate the court's March 16, 2020 order
because it was entered in violation of the United States Bankruptcy Code's
automatic stay provision.
I.
To provide context for our decisions, we provide an extended discussion
of the procedural history and facts derived from the record. Plaintiff and
defendant, after a marriage of approximately nine years, divorced on August 29,
2005, pursuant to a final judgment of divorce, which incorporated their written
property settlement agreement (PSA). During the course of their marriage, the
parties had a daughter and son. In the PSA, defendant acknowledged he had not
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seen the children for several months and "voluntarily relinquished his parenting
time rights."
Plaintiff and defendant agreed that they considered the PSA's terms "fair,
reasonable[,] and satisfactory," and their "obligation to support [their c]hildren
shall remain until [their] respective emancipation." Emancipation was defined
as "the facts in existence at the time one of the parents allege a child to be
emancipated."
The parties also agreed to "equally share" the children's medical expenses
not covered by insurance and "to contribute to the college/trade school/post -
secondary education expenses of the [c]hildren." The PSA did not explicitly
address the parties' involvement in the children's college decision-making
process.
Plaintiff subsequently moved for sole legal and residential custody of the
children, which the court granted in a May 28, 2010 order. On April 27, 2011,
the parties entered a consent order reducing defendant's child support
obligations because he filed a Chapter 13 bankruptcy petition. See 11 U.S.C. §
301. In that order, plaintiff and defendant agreed that defendant would remain
responsible for thirty percent of the children's medical expenses and that all prior
orders remained "in full force and effect" unless specifically modified.
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After the parties' daughter turned nineteen-years-old, the court issued an
October 10, 2018 administrative order terminating defendant's obligations to
pay child support pursuant to N.J.S.A. 2A:17-56.67(a). The following month,
plaintiff filed a motion seeking, among other relief, to vacate the October 10,
2018 order because the parties' daughter was a registered full-time college
student, which plaintiff supported with a letter from the registrar of their
daughter's college. Plaintiff also sought to enforce defendant's obligations under
the previous orders to contribute towards the health and education expenses of
the children, and for counsel fees.
On February 22, 2019, the court ordered defendant "for the reasons
expressed on the record,"1 to reimburse plaintiff for thirty percent of the
children's medical expenses pursuant to the April 27, 2011 consent order. In
addition, the court ordered plaintiff to send defendant copies of all unreimbursed
medical expenses within two weeks of her receipt.
The court also un-emancipated the parties' daughter until her twenty-third
birthday and ordered, as a college student, she had an "affirmative obligation to
1
We have not been provided with the court's written or oral statement of reasons
supporting the February 22, 2019 order.
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complete and sign a FERPA form,[2] giving [defendant] access to her grades,
class schedule, . . . and financial aid information every semester that she is in
college, in order to have [d]efendant . . . contribute towards her college costs."
The court ordered again, "by consent," that defendant's proportionate share of
his daughter's education expenses was thirty percent. In a separate March 29,
2019 order, the court denied plaintiff's request for counsel fees.
On September 10, 2019, defendant filed a motion "enforcing . . . [his]
[r]ights as a [l]itigant," and seeking to vacate the court's February 22, 2019 order
to the extent it obligated him to reimburse any of his daughter's college
expenses. He specifically sought to determine "the amount of unreimbursed
medical expenses, if any, the [p]laintiff is entitled to . . . based on [her] failure
to substantially comply" with the February 22, 2019 order. Finally, he requested
the court enter an order emancipating his daughter and awarding him counsel
fees.
2
FERPA refers to the Family Educational Rights and Privacy Act, 20 U.S.C. §
1232g, which we have noted "prohibit[s] the federal funding of educational
institutions that have a policy or practice of releasing education records to
unauthorized persons." L.R. v. Camden City Pub. Sch. Dist., 452 N.J. Super.
56, 75 (App. Div. 2017) (alteration in original) (quoting Gonzaga Univ. v. Doe,
536 U.S. 273, 276 (2002)).
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In his supporting certification, defendant asserted neither plaintiff nor his
daughter provided him with the FERPA form granting him access to her college
information. He stated plaintiff "wrote to [his] wife that [their daughter] was
not attending college," and questioned whether his daughter was "still enrolled
in and attending college anywhere." Defendant further certified that he received
a letter from plaintiff's attorney prior to filing his motion seeking payment of
medical expenses. He argued however, that plaintiff failed to comply with the
time requirements included in the February 22, 2019 order when she sent the
outstanding and unreimbursed medical expenses.
Plaintiff opposed defendant's application and filed a cross-motion to
compel defendant to pay thirty percent of the children's unreimbursed medical
expenses and college costs through the fall 2019 semester, and for counsel fees.
Plaintiff certified that the FERPA form "was signed and provided" to the school
on March 13, 2019, a copy of which she appended, and that "[a]ll [d]efendant
had to do . . . was call the school." She also stated she provided defendant with
proof of all unreimbursed medical expenses on April 13, 2019, "via certified
mail [and] in conformity" with the February 22, 2019 order, and requested
defendant reimburse her in an August 5, 2019 letter from her attorney, which
was returned to plaintiff as "[u]nclaimed."
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Neither party requested a plenary hearing to resolve the issues raised in
the motion, and agreed to have the motions heard on the papers. They also
waived oral arguments.
In a reply certification filed with the court on October 8, 2019, defendant
stated he contacted the registrar's office of his daughter's college and that they
did not have a signed FERPA form to grant him access to his daughter's
information, and he alleged the form plaintiff produced to the court was
fraudulently created. He also certified that he received notice to collect an
unspecified delivery at the post office, but he was unaware it contained medical
bills for which plaintiff sought reimbursement.
On November 14, 2019, the court denied defendant's motion in its entirety,
and concluded defendant violated the February 22, 2019 order. The court also
granted in part plaintiff's cross-motion and ordered defendant to pay all
outstanding and unreimbursed medical and college expenses within five days of
the date of the order.
In the court's corresponding statement of reasons, it found defendant's
motion "repeated arguments previously litigated and decided" and concluded
"[p]laintiff provided invoices for the medical expenses and proof of mailing
these invoices to [d]efendant prior to the filing date." Further, the court noted
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defendant agreed to pay thirty percent of his daughter's college expenses by
consent, as memorialized in the February 22, 2019 order. Absent a showing of
duress, which defendant neither asserted nor established, the court concluded
that provision of the order remained enforceable.
Regarding defendant's argument that plaintiff failed to file the FERPA
form as required by the February 22, 2019 order, the court found the issue moot
based on plaintiff's "evidence of compliance," and stated "[p]laintiff should be
cognizant of the educational institution's policy regarding the need to file a new
FERPA form every semester." It further noted defendant did not make any
argument as to why his daughter should be emancipated "beyond his lack of
relationship with her." Finally, the court reviewed the Rule 5:3-5(c) factors and
denied both parties' request for counsel fees finding they each demonstrated
good faith in making their motions.
The following day, defendant's counsel sent the court a letter asking
whether it: 1) considered defendant's cross-motion and reply, 2) would stay its
order requiring defendant to reimburse the children's expenses within five days,
and 3) intended to file "a statement or opinion pursuant to [Rule] 2:5-1." The
court did not respond to defendant's counsel's communication.
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On January 14, 2020, plaintiff filed a motion to enforce the terms of the
November 14, 2019 order. She also requested additional unreimbursed medical
costs, contribution with regard to their daughter's spring 2020 semester college
expenses, and for the court to impose "coercive measures to secure [defendant's]
compliance" with the November 14, 2019 order. Plaintiff sought sanctions for
every day defendant failed to make the required payments, the accrual of post-
judgment interest, and counsel fees.
On January 20, 2020, defendant filed a second Chapter 13 bankruptcy
petition. The parties disputed the applicability of the automatic stay provision
of the United States Bankruptcy Code, 11 U.S.C. § 362(a), to plaintiff's January
14, 2020 motion. Defendant also noted that the bankruptcy court had not
approved his lawyer, Damiano Marcello Fracasso, as special counsel for the
state court proceedings, and therefore, his counsel of choice was unable to
"formally participate in [the] proceeding." 3
On March 16, 2020, the court entered an order requiring defendant to pay
plaintiff $18,664.21, representing the disputed and unreimbursed medical and
3
On March 18, 2020, defendant applied to the bankruptcy court for permission
to retain Fracasso as counsel for "post-judgment enforcement actions pending in
the Superior Court of New Jersey," which the bankruptcy court approved on
March 27, 2020.
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college expenses, including those related to their daughter's spring 2020
semester, and concluded that defendant was in violation of the November 14,
2019 order. Specifically, the court found that defendant was obligated to pay
$1,278.98 in medical expenses and $13,004 in college tuition related to the
November 14, 2019 order, along with an additional $179.97 in medical expenses
and $4,201.26 for their daughter's spring 2020 term. The court also denied
plaintiff's request for sanctions, coercive incarceration, post-judgment interest,
and counsel fees.
In the court's accompanying written statement of reasons, it noted
defendant failed to raise his "jurisdictional and substantive objections in a
formal opposition," and the court therefore proceeded as if the motion was
unopposed. The court concluded that defendant was in direct violation of its
November 14, 2019 order obligating him to pay plaintiff the unreimbursed
medical expenses and his proportionate thirty percent share of the parties'
daughter's college expenses. The court also determined that plaintiff provided
competent proofs regarding the unreimbursed medical expenses from October
1, 2019 through December 30, 2019, in addition to the expenses related to their
daughter's spring 2020 semester colleges costs. These appeals followed.
II.
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Our review of Family Part orders is limited. Cesare v. Cesare, 154 N.J.
394, 411 (1998). "We review the Family Part judge's findings in accordance
with a deferential standard of review, recognizing the court's 'special jurisdiction
and expertise in family matters.'" Thieme v. Aucoin-Thieme, 227 N.J. 269, 282-
83 (2016) (quoting Cesare, 154 N.J. at 413).
We uphold Family Part findings if those findings are supported by
"adequate, substantial, credible evidence." N.J. Div. of Child Prot. &
Permanency v. S.K., 456 N.J. Super. 245, 261 (App. Div. 2018) (quoting Cesare,
154 N.J. at 411-12). Likewise, an order granting a motion to enforce litigant's
rights is reviewed under an abuse of discretion standard. N. Jersey Media Grp.,
Inc. v. State, Off. of Governor, 451 N.J. Super. 282, 296, 299 (App. Div. 2017).
We do not, however, owe any deference to the Family Part's "interpretation of
the law." Thieme, 227 N.J. at 283 (quoting D.W. v. R.W., 212 N.J. 232, 245
(2012)).
We may also exercise more extensive review of trial court findings that
do not involve a testimonial hearing or the opportunity to assess witness
credibility. See N.J. Div. of Youth & Fam. Servs. v. G.M., 198 N.J. 382, 396
(2009) (stating that we "need not afford deference" to Family Part conclusions
when "no hearing takes place, no evidence is admitted, and no findings of fact
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are made"). Nevertheless, "[r]eversal is reserved only for those circumstances
when 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.'" Llewelyn v.
Shewchuk, 440 N.J. Super. 207, 214 (App. Div. 2015) (quoting N.J. Div. of
Youth & Fam. Servs. v. M.M., 189 N.J. 261, 279 (2007)).
III.
In A-1417-19, defendant challenges the November 14, 2019 order denying
his motion for post-judgment relief and requiring him to pay thirty percent of
his children's unreimbursed medical and college expenses pursuant to the
February 22, 2019 order. Defendant argues the court erred by: 1) depriving him
of due process; 2) incorrectly refusing to vacate or amend the February 22, 2019
order; 3) misapplying the law on emancipation; 4) failing to order a plenary
hearing, particularly on the issue of whether plaintiff provided a FERPA form
for the fall 2019 semester; 5) requiring him to reimburse his children's medical
expenses despite plaintiff's alleged violation of the February 22, 2019 order; and
6) ordering him to reimburse his daughter's college expenses.4
4
Defendant also argued the court did not possess authority in its November 14,
2019 order to compel him to comply with the court's mandate within five days,
but concedes the issue is moot in light of his Chapter 13 bankruptcy petition,
and the subsequent entry of a payment plan. We therefore decline to address the
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We agree the court erred in concluding that based on the motion record, a
FERPA form was provided for the fall 2019 semester, but otherwise disagree
with defendant's remaining contentions. Accordingly, we vacate a portion of
the November 14, 2019 order and remand for the limited purpose for the court
to determine if the fall 2019 FERPA form was provided and, if not, whether that
failure relieves defendant's obligation to reimburse plaintiff for college expenses
related to the fall 2019 semester.
"When faced with evidence of disputed material facts, a judge must permit
a plenary hearing in order to reach a resolution." Milne v. Goldenberg, 428 N.J.
Super. 184, 201 (App. Div. 2012) (quoting Tretola v. Tretola, 389 N.J. Super.
15, 20 (App. Div. 2006)). "When the evidence discloses genuine material issues
of fact, the failure to conduct a plenary hearing to resolve those issues requires
us to reverse and remand for such a hearing." K.A.F. v. D.L.M., 437 N.J. Super.
123, 138 (App. Div. 2014). However, "where . . . affidavits do not show the
existence of a genuine issue of material fact, the trial judge . . . may decide the
motion without a plenary hearing." Shaw v. Shaw, 138 N.J. Super. 436, 440
(App. Div. 1976); see also Quinn v. Quinn, 225 N.J. 34, 45 (2016).
merits of this argument, but note the court has broad equitable powers to enforce
child support obligations under Rule 5:3-7(b).
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"Conclusory allegations [should] . . . be disregarded. Only statements to
which a party could testify should be considered." Lepis v. Lepis, 83 N.J. 139,
159 (1980); see also Pressler & Verniero, Current N.J. Court Rules, cmt. on R.
1:6-6 (2021) ("Personal knowledge . . . clearly excludes facts based merely on
'information and belief.'").
A. Due Process
Defendant argues the court failed to consider his opposition and reply
papers before issuing its November 14, 2019 order, which deprived him of due
process. We disagree.
The United States Constitution provides that no state shall "deprive any
person of life, liberty, or property, without due process of law." U.S. Const.
amend. XIV, § 1; see also N.J. Const. art. 1, ¶ 1. "In examining a procedural
due process claim, we first assess whether a liberty or property interest has been
interfered with by the State, and second, whether the procedures attendant upon
that deprivation are constitutionally sufficient." Doe v. Poritz, 142 N.J. 1, 99
(1995) (citation omitted).
Here, defendant's reply certification was received by the court on October
8, 2019, as indicated by its time stamp, and the court specified in its November
14, 2019 order that it "read the papers presented by the parties." Further, we are
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satisfied from an independent review of the record that the court conscientiously
and thoroughly considered all of the parties' arguments. As such, we find no
violations of defendant's due process rights based on the court's alleged failure
to consider his opposition and reply papers, or on any other basis.
B. Failure to Vacate
We also disagree with defendant that the court incorrectly refused to
vacate or amend the February 22, 2019 order. Specifically, he contends the court
erred in requiring him to show duress instead of considering the standards and
bases for vacating or amending final judgments as set forth under Rule 4:50-1.
Motions to reopen or set aside a judgment are governed by Rule 4:50-1,
which provides:
[T]he court may relieve a party or the party's legal
representative from a final judgment or order for the
following reasons: (a) mistake, inadvertence, surprise,
or excusable neglect; (b) newly discovered evidence
which would probably alter the judgment or order and
which by due diligence could not have been discovered
in time to move for a new trial under [Rule] 4:49; (c)
fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct of an
adverse party; (d) the judgment or order is void; (e) the
judgment or order has been satisfied, released or
discharged, or a prior judgment or order upon which it
is based has been reversed or otherwise vacated, or it is
no longer equitable that the judgment or order should
have prospective application; or (f) any other reason
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justifying relief from the operation of the judgment or
order.
"As a general matter, judgments and orders in family actions are covered
by this rule." Pressler & Verniero, Current N.J. Court Rules, cmt. 6.1 on R.
4:50-1 (2021). "Regardless of the basis, vacation of a judgment under Rule
4:50-1 should be granted sparingly." In re Guardianship of J.N.H., 172 N.J. 440,
473-74 (2002).
As best we can discern, defendant contends the court should have vacated
the February 22, 2019 order, and in failing to do so erroneously relied
exclusively on the lack of "duress," as a basis for refusing to set aside that order.
Defendant's claims are without merit. First, defendant has not identified
affirmatively either in the trial court or before us which provision of Rule 4:50-
1 he relies upon in support of his position that the February 22, 2019 order
should be vacated. Second, defendant failed to establish his right to relief under
any provision of Rule 4:50-1. He has not shown the order was entered by
mistake, should be vacated due to newly discovered evidence, or that the parties'
misconduct warranted relief under Rule 4:50-1. Nor do any of the reasons
expressed in subsections (d), (e), or (f) apply. We therefore conclude the court
did not abuse its discretion in denying defendant's motion to vacate or amend
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the February 22, 2019 order. See U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J.
449, 467 (2012).
C. Emancipation
Defendant next argues that the court erred in refusing to emancipate his
daughter. Specifically, he contends the court misapplied the law on
emancipation and erred in failing to grant him a plenary hearing.
Emancipation is a legal concept, imposed when "the fundamental
dependent relationship between parent and child" ends. See Dolce v. Dolce, 383
N.J. Super. 11, 17 (App. Div. 2006). "It is not automatic and 'need not occur at
any particular age . . . .'" Llewelyn, 440 N.J. Super. at 216 (quoting Newburgh
v. Arrigo, 88 N.J. 529, 543 (1982)). "When the circumstances surrounding the
parent-child relationship support a finding 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.'" Ibid. (quoting Filippone v. Lee, 304
N.J. Super. 301, 308 (App. Div. 1997)).
However, the law "provides that once a child reaches the age of majority,
now eighteen, N.J.S.A. 9:17B-3, a parent has established 'prima facie, but not
conclusive, proof of emancipation.'" Ibid. (quoting Johnson v. Bradbury, 233
N.J. Super. 129, 136 (App. Div. 1989)). Once established, "the burden of proof
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to rebut the statutory presumption of emancipation shifts to the party or child
seeking to continue the support obligation." Ibid. The presumption "may be
overcome by evidence that a dependent relationship with the parents continues
because of the needs of the child." Ibid. A child's attendance in postsecondary
education is one 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).
The issue of whether a child is emancipated demands a fact-sensitive
analysis. Newburgh, 88 N.J. at 543. "[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." Llewelyn, 440
N.J. Super. at 216 (alteration in original) (quoting Filippone, 304 N.J. Super. at
308). The "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.'" Ibid. (quoting Dolce, 383 N.J. Super. at 18); see also
N.J.S.A. 2A:17-56.67; R. 5:6-9.
Issues of emancipation typically require a plenary hearing, especially
"when the submissions show there is a genuine and substantial factual dispute"
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that the trial court must resolve. Hand v. Hand, 391 N.J. Super. 102, 105 (App.
Div. 2007). Nevertheless, "[a]s is particularly the case in matters that arise in
the Family Part, a plenary hearing is only required if there is a genuine, material
and legitimate factual dispute." Llewelyn, 440 N.J. Super. at 217 (alteration in
original) (quoting Segal v. Lynch, 211 N.J. 230, 264-65 (2012)).
Here, the issue of whether the parties' daughter should be emancipated
was first decided in the court's February 22, 2019 order. By the time the court
reached that decision, the parties' daughter already completed a semester of
college and the court concluded emancipation was not supported. As indicated
by the court in its November 14, 2019 order, defendant's motion for post -
judgment relief "repeated arguments previously litigated and decided." We are
satisfied defendant has failed to establish a "genuine, material and legitimate
factual dispute," Llewelyn, 440 N.J. Super. at 217, as to whether the parties'
daughter was outside her parent's sphere of influence, and find no basis to
disturb the court's decision denying defendant's request without a plenary
hearing.
D. Medical Expenses
Defendant next contends that he should be relieved of his obligation to
reimburse plaintiff for the children's medical expenses. Specifically, defendant
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maintains plaintiff's failure to provide him with receipts of medical expenses
exactly within two weeks of her receiving them, contrary to the February 22,
2019 order, discharged his obligation to reimburse these expenses. Again, we
disagree.
Unlike defendant's obligation to pay for his daughter's college expenses,
his obligation to pay his children's medical expenses, which he agreed to in the
PSA and April 27, 2011 consent order, could only be extinguished upon
emancipation. Under the circumstances before us, plaintiff's failure to provide
defendant with copies of the disputed medical expenses within two weeks of
receipt as required by the February 22, 2019 order, did not relieve him of his
obligation to reimburse those expenses, it merely delayed plaintiff's right to
receive payment for these expenses. In the future, however, plaintiff shall timely
provide any unreimbursed medical expenses to defendant consistent with the
February 22, 2019 order. We find that the court's enforcement of defendant's
obligations, after he had more than two weeks' notice of the disputed expenses
to be "fair and equitable," Dolce, 383 N.J. Super. at 18, and the court's decision
to rely on equitable principles to deny defendant relief supported by "adequate,
substantial, credible evidence." S.K., 456 N.J. Super. at 261 (citation omitted).
E. College Expenses
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We also disagree with defendant's argument that he should be relieved of his
obligation to pay his thirty percent share of his daughter's college expenses.
Specifically, defendant contends the Newburgh factors, 88 N.J. at 543-45, and
principles expressed in Gac v. Gac, 186 N.J. 535, 545-46 (2006), and Moss v.
Nedas, 289 N.J. Super. 352, 359-60 (App. Div. 1996), support his position
because he does not have a relationship with his daughter, and she "only
perceives [him] as an open check book." We agree, however, that there was a
genuine dispute as to whether a FERPA form was filed with the school for the fall
2019 semester, which may affect his obligation under the February 22, 2019
order to reimburse his daughter's college expenses for that semester.
In determining whether a separated or divorced parent is obligated to
contribute to a child's college expenses, the Supreme Court set forth a dozen
factors in Newburgh, 88 N.J. at 545, which the Legislature then essentially
adopted in an amendment to the child support statute. Gac, 186 N.J. at 543; see
N.J.S.A. 2A:34-23(a). Those factors are:
(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
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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
the overall long-range goals of the child.
[Newburgh, 88 N.J. at 545.]
In Gac, the Court applied these factors and held a father was not obligated to
pay for his daughter's college expenses, in part because: the daughter had no
relationship with the father and repeatedly, over several years, rejected his efforts to
reestablish a relationship; the father, who received a modest income, was not kept
abreast of his daughter's plans as they were being made, including her decision to
attend an expensive private college instead of a less-expensive state college; and the
daughter did not request assistance with paying for her college expenses until after
she had graduated from college and was saddled with loans. 186 N.J. at 545-46.
Notably, the parties in Gac did not contemplate the father reimbursing the daughter's
college expenses before those expenses were incurred. Ibid.A-1417-19
22
Notwithstanding emancipation, "a parent can bind himself or herself by
consensual agreement, voluntarily and knowingly negotiated, to support a child"
beyond the presumptive age of emancipation, which is "enforceable if fair and
equitable." Dolce, 383 N.J. Super. at 18. When parents have created an
enforceable agreement as to child support, "the parental obligation is not
measured by legal duties otherwise imposed, but rather founded upon
contractual and equitable principles." Ibid. (citation omitted); see also Jennings
v. Reed, 381 N.J. Super. 217, 227 (App. Div. 2005) (noting duress, deception,
fraud, undue pressure, unseemly conduct, incapacity, or incompetence may be
grounds to vacate a settlement agreement).
"If circumstances have changed in such a way that [the support provision]
would no longer be equitable and fair, the court also remains free to alter the
prior arrangement." Lepis, 83 N.J. at 161 n.12 (citations omitted). In such
circumstances, application of the Newburgh factors may be appropriate despite
the presence of an agreement to fund college expenses. See Moss, 289 N.J.
Super. at 359-60. However, "where parties to a divorce have reached an
agreement regarding children attending college . . . and no showing has been
made that the agreement should be vacated or modified, the Family Part need
not apply all twelve factors pertinent to college expenses as identified in
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23
Newburgh . . . ." Avelino-Catabran v. Catabran, 445 N.J. Super. 574, 591 (App.
Div. 2016).
In Moss, 289 N.J. Super. at 354, 356, the trial court initially required a
father to pay a share of a daughter's college tuition in accordance with the
parent's settlement agreement. After the daughter transferred to a different
college without notifying the father, the court reduced his obligation for that
school year and ordered that he would not be responsible for any further
contribution "unless and until he is fully advised of all choices considered" by
the daughter. Ibid. Despite the "clear requirement that [the mother]
communicate with [the father] concerning [the daughter]'s educational progress
and plans," the daughter transferred schools again without notice to the father,
and the court terminated his obligation because of the complete lack of
communication. Id. at 359-60. We affirmed finding no abuse of discretion and
noted prior arrangements can be set aside when a change in circumstances no
longer makes them fair and equitable. Ibid.Here, defendant and plaintiff unequivocally agreed in their PSA "to
contribute to the . . . post-secondary education expenses of the [c]hildren."
Defendant further agreed as memorialized in the February 22, 2019 order that
his proportion of the daughter's college expenses would be thirty percent. As
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24
such, defendant's obligations are "not measured by legal duties otherwise
imposed," Dolce, 383 N.J. Super. at 18, but by his contractual agreement.
Defendant's argument that he does not have a relationship with his
daughter and that she perceives him as an "open check book" does not support
extinguishing his obligations to contribute to his daughter's college expenses.
As noted, defendant "voluntarily relinquished his parenting time rights" in the
PSA and nonetheless agreed that contributing to his daughter's education w as
"fair, reasonable[,] and satisfactory." Defendant never asserted that he
developed any relationship with his daughter between that time and the February
22, 2019 consent order. Even when defendant agreed to contribute thirty percent
towards his daughter's education, she already completed her first semester
without defendant's decision-making input.
Further, defendant has not shown, based on the record before us, that his
obligation to reimburse the college expenses of the parties' daughter should be
extinguished based on the Newburgh factors, 88 N.J. at 543-45, or the principles
expressed in Gac, N.J. at 545-46, and Moss, 289 N.J. Super. at 359-60.
Defendant failed to specifically address the Newburgh factors, and, unlike Moss,
defendant does not indicate he was expected to be involved in his daughter's
college decision-making process. Nor does defendant cite evidence of his
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25
attempts to establish a relationship with his daughter or his lack of knowledge
about the college expenses until she graduated college, such as in Gac.
However, the court erred in granting plaintiff's motion requiring defendant
to reimburse his daughter's fall 2019 college expenses because there was a
genuine dispute as to whether a FERPA form was filed with the school as
required by the February 22, 2019 order. Plaintiff only certified that a FERPA
form was provided for the spring 2019 semester and that "[a]ll [d]efend ant had
to do . . . was call the school." Defendant's reply certification stated he contacted
the school and was unable to access his daughter's information for the fall 2019
semester. Thus, a genuine dispute exists as to whether a FERPA form was
actually submitted for the fall 2019 semester.
Without any findings to support the court's conclusion that a FERPA form
was provided for the fall 2019 semester as required by the February 22, 2019
order, we "need not afford deference" to the court's conclusion. G.M., 198 N.J.
at 396. Based on these circumstances, we are compelled to vacate the November
14, 2019 order to the extent it concluded a FERPA form for the fall 2019
semester was provided and remand on this limited issue for further findings of
facts. We offer no opinion as to whether the failure to provide a FERPA form
A-1417-19
26
for the fall 2019 semester, if true, alters defendant's obligation under equitable
principles to contribute to his daughter's education expenses for that semester.
IV.
In A-3369-19, defendant argues the March 16, 2020 order awarding
plaintiff medical and college reimbursement costs was entered contrary to the
United States Bankruptcy Code automatic stay provision. See 11 U.S.C. § 362.
Under that provision, defendant argues that once he filed his petition, the court
was prohibited from ordering him to pay an award from the property of the
bankruptcy estate.
Defendant also contends that to the extent plaintiff argues the March 16,
2020 order "modified" an earlier order, the court lacked subject matter
jurisdiction to address such a claim under Rule 2:9-1. He also contends the court
committed reversible error by denying defendant the opportunity "to apply to
the . . . [b]ankruptcy [c]ourt for the appointment of court approved special
counsel."
We agree the March 16, 2020 order was entered in violation of the
automatic stay provision and vacate it. Our opinion is expressly limited to the
March 16, 2020 order under review.
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27
New Jersey courts have concurrent jurisdiction with federal bankruptcy courts
to address the applicability of the automatic stay. Citizens First Nat. Bank v. Marcus,
253 N.J. Super. 1, 6 (App. Div. 1991) (citing In re Bona, 124 B.R. 11, 15 (Bankr.
S.D.N.Y. 1991)); see also Minelli v. Harrah's Resort Atl. City, 463 N.J. Super. 539,
546-47 (App. Div. 2020) ("[A] state trial court must decide its own jurisdiction to
hear the case before it, including, specifically, whether that case is stayed by
operation of Section 362.").
In addition, "[a]ctions taken in violation of the [automatic] stay are void." In
re Myers, 491 F.3d 120, 127 (3rd Cir. 2007). "A state court judgment entered while
the automatic stay is in place renders that judgment void ab initio," or a nullity from
the beginning. Bascom Corp. v. Chase Manhattan Bank, 363 N.J. Super. 334, 341
(App. Div. 2003); see also Clark v. Pomponio, 397 N.J. Super. 630, 634 (App. Div.
2008). This results because sole jurisdiction regarding collection of a pre-petition
claim rests with the bankruptcy court, stripping the state court of all authority on the
subject matter. In re Siciliano, 13 F.3d 748, 750 (3d Cir. 1994). The bankruptcy
court, however, may "cure acts that are otherwise void under the automatic stay"
pursuant to 11 U.S.C. § 362(d). In re Askew, 312 B.R. 274, 281 (Bankr. D. N.J.
2004) (citing In re Siciliano, 13 F.3d at 751). The bankruptcy court retains authority
to issue retroactive annulment of the stay. In re Myers, 491 F.3d at 127.
A-1417-19
28
Section 362(a) provides:
Except as provided in subsection (b) of this section, a
petition filed under . . . [11 U.S.C. § 301, 302, or 303],
or an application filed under . . . [15 U.S.C. §
78eee(a)(3)], operates as a stay, applicable to all
entities, of—
(1) the commencement or continuation, including the
issuance or employment of process, of a judicial,
administrative, or other action or proceeding against the
debtor that was or could have been commenced before
the commencement of the case under this title, or to
recover a claim against the debtor that arose before the
commencement of the case under this title; [and]
(2) the enforcement, against the debtor or against
property of the estate, of a judgment obtained before
the commencement of the case under this title . . . .
"The stay that comes into effect upon filing a bankruptcy petition has been
described as 'an instrument of sweeping breadth and tremendous power.'" Clark,
397 N.J. Super. at 637 (quoting Henry J. Sommer et al., Collier Family Law and the
Bankruptcy Code ¶ 5.03 (Alan N. Resnick & Henry J. Sommer eds., 2007)). Further,
"the stay is automatic, in that it immediately goes into effect once the bankruptcy
petition is filed." Id. at 638. The stay "permits the bankruptcy court to maintain
control over virtually all aspects of the debtor's financial affairs in a single
proceeding, with other parties or courts permitted to interfere only as the bankruptcy
A-1417-19
29
court allows." Henry J. Sommer & Margaret Dee McGarity, Collier Family Law
and the Bankruptcy Code ¶ 5.03 (Matthew Bender ed., 2021).
The automatic stay, however, "does not operate as a stay . . . of the
commencement or continuation of a civil action or proceeding . . . for the
establishment or modification of an order for domestic support obligations . . . ." 11
U.S.C. § 362(b)(2)(A)(ii) (emphasis added). The automatic stay also does not apply
to the "collection of a domestic support obligation from property that is not property
of the estate" or "with respect to the withholding of income that is property of the
estate or property of the debtor for payment of a domestic support obligation under
a judicial or administrative order or a statute." 11 U.S.C. § 362(b)(2)(B), (C).
The bankruptcy code defines a domestic support obligation as "a debt that
accrues before, on, or after the date of the order for relief in a case under this title,
including interest that accrues on that debt as provided under applicable
nonbankruptcy law notwithstanding any other provision of this title . . . ." 11 U.S.C.
§ 101(14A). Further, the debt must be "owed to or recoverable by . . . a spouse,
former spouse, or child of the debtor or such child's parent, legal guardian, or
responsible relative" and "in the nature of alimony, maintenance, or support . . . of
such spouse, former spouse, or child of the debtor or such child's parent, without
A-1417-19
30
regard to whether such debt is expressly so designated . . . ." 11 U.S.C. §
101(14A)(A)(i), (B).
Federal courts have held that a court order obligating a parent to pay college
expenses should be treated as a domestic support obligation under federal law. In re
Schmacher, 495 B.R. 735, 744 (Bankr. W.D. Tex. 2013); In re Maiorino, 435 B.R.
806, 808 (Bankr. D. Mass. 2010); Soffel v. Shar, 299 B.R. 107, 112-14 (Bankr. W.D.
Pa. 2003). Likewise, federal courts have indicated that medical expenses are a
domestic support obligation. See In re Hutchens, 480 B.R. 374, 388 (Bankr. M.D.
Fla. 2012).
In In re Miller, 501 B.R. 266, 279 (Bankr. E.D. Pa. 2013), the court reviewed
whether "a particular ongoing state court proceeding involving the collection of
money or property from the debtor is excepted from the automatic stay" under
section 362(b)(2)(A) and (B). First, the court must determine whether the debt [is]
a domestic support obligation. Ibid. Second, if the debt is a domestic support
obligation, the question is whether "the moving party is seeking an order in state
court that merely establishes or modifies the [domestic support obligation.]" Ibid.Third, if "the moving party is seeking more than a state court order establishing or
modifying the [domestic support obligation]—i.e., an order enforcing the payment
of a [domestic support obligation]—is the party seeking payment from sources other
A-1417-19
31
than property of the bankruptcy estate?" Ibid. If "the answer to the first question is
'yes' and the second question is 'no,' the answer to the third question must be 'yes.'"
Ibid. In that event, the moving party would be allowed to proceed in state court
under 11 U.S.C. § 362(b)(2)(C) "[o]therwise, the exception to the automatic stay is
inapplicable." Ibid.
Exceptions under subparagraph (C), however, apply to wage garnishment
orders. In re DeSouza, 493 B.R. 669, 673 (BAP 1st Cir. 2013). Indeed, "the
collection of a domestic support obligation from property of a debtor's estate only
may be accomplished through a wage garnishment order; otherwise, it violates the
automatic stay." In re Dougherty-Kelsay, 601 B.R. 426, 443 (Bankr. E. Ky. 2019).
11 U.S.C. § 541(a) defines property of the bankruptcy estate as "all legal or
equitable interests of the debtor in property as of the commencement of the case."
The bankruptcy courts have "emphasized that section 541(a) was intended to sweep
broadly to include all kinds of property, including tangible or intangible property,
[and] causes of action[.]" In re Majestic Star Casino, 716 F.3d 736, 750 (3d Cir.
2013) (alteration in original) (citation omitted). Further, in a Chapter 13 bankruptcy,
property of the estate includes "all property of the kind specified in [section 541]
that the debtor acquires after the commencement of the case but before the case is
closed . . . and . . . earnings from services performed by the debtor after the
A-1417-19
32
commencement of the case but before the case is closed . . . ." 11 U.S.C. §
1306(a)(1)-(2).
Here, the parties do not dispute that the award in the March 16, 2020 order is
a domestic support obligation. Indeed, both parties' arguments are premised on that
classification. Further, applicable case law and the plain language of 11 U.S.C. §
101(14A)(A)(i), (B), supports the finding that the children's medical and college
expenses are a domestic support obligation. Plaintiff was owed a debt, enforceable
by her, for support in the form of college and medical expenses for the parties'
children. Therefore, the issue is whether plaintiff's motion sought an order which
modified or established a domestic support obligation and if not, whether plaintiff
sought "payment from sources other than property of the bankruptcy estate[.]" In re
Miller, 501 B.R. at 279.
Plaintiff's January 14, 2020 motion clearly seeks enforcement of the
November 14, 2019 order which established a domestic support obligation. The
motion specifically stated that defendant violated the November 14, 2019 order by
failing to reimburse plaintiff the medical and college expenses. Further, the motion
requested an order compelling defendant to "reimburse" plaintiff for college and
medical expenses that defendant already agreed to contribute to as memorialized
in the February 22, 2019 order, including for the spring 2020 college semester.
A-1417-19
33
Plaintiff did not request a modification of a previous domestic support
obligation or the establishment of a new obligation, she moved to collect payment.
Indeed, in plaintiff's merits brief, and as informed during oral arguments before us,
she specifically stated that her motion "sought reimbursement by [d]efendant of his
share of the children's unreimbursed medical expenses" and "their daughter's college
costs" in addition to "enforcement mechanisms to ensure [d]efendant's compliance."
Although we acknowledge that the November 14, 2019 order did not quantify the
spring 2020 costs and additional medical expenses, plaintiff did not seek an order to
merely establish these obligations. In re Miller, 501 B.R. at 279. As noted, plaintiff
moved to collect payment and sought "coercive measures to secure" compliance
from defendant in her January 14, 2020 motion.
Further, plaintiff did not contend she sought payment from property that was
not part of the bankruptcy estate, nor did the court indicate whether the payments
were to come from a source other than the bankruptcy estate. The court simply
ordered defendant to pay plaintiff within thirty days from entry of the March 16,
2020 order. Finally, plaintiff did not seek, nor did the court enter an order imposing
a wage garnishment to recover these funds. On such a record, we conclude the
March 16, 2020 order was entered in violation of the automatic stay and is, therefore,
void.
A-1417-19
34
In light of our decision that the March 16, 2020 order was entered in violation
of the automatic stay, we need not address defendant's remaining arguments in A-
3369-19 that the court lacked subject matter jurisdiction under Rule 2:9-1 and
committed reversible error by denying him the opportunity to obtain court approved
counsel, and do not express an opinion as to the merits of these contentions. To the
extent we have not specifically addressed or referenced any of defendant's remaining
arguments, it is because we have concluded they are without sufficient merit to
warrant discussion in this opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, vacated in part, and remanded for further proceedings
consistent with this opinion. We do not retain jurisdiction.
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35