K.F. v. W.F. ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-3410-22
K.F.,1
Plaintiff-Respondent,
v.
W.F.,
Defendant-Appellant.
_______________________
Submitted July 16, 2024 – Decided July 23, 2024
Before Judges Susswein and Perez Friscia.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Burlington County,
Docket No. FM-03-0683-17.
W.F., appellant pro se.
K.F., respondent pro se.
PER CURIAM
1
We use initials to protect the privacy of the litigants and preserve the
confidentiality of certain records because we discuss the parties' financial
circumstances. See R. 1:38-3(d)(1).
In this post-judgment matrimonial matter, defendant W.F. appeals from a
May 26, 2023 Family Part order modifying his child support obligation and
requiring reimbursement of out-of-pocket medical expenses and child tax credits
to plaintiff K.F., the child's mother. Following our review of the record and
applicable legal standards, we affirm in part, reverse in part, and remand for
further proceedings.
I.
The parties were married in October 1996 and share one child, G.F., born
in December 2003. On May 30, 2018, the parties divorced, entering an amended
final judgment of divorce that incorporated their marital settlement agreement
(MSA).
Under the terms of the MSA, the parties agreed: "[d]efendant shall pay
child support in the amount of $285 per week" with "[z]ero overnights credited";
"[p]laintiff shall be responsible for the first $250 per year in unreimbursed and
uninsured medical expenses for [G.F.]" with "remaining expenses . . . shared
pursuant to the income percentages on the [c]hild [s]upport [g]uideline[s]
[w]orksheet"; defendant was entitled to claim the child tax exemption for even
years if "current in his child support obligation"; and "[b]oth parties shall
contribute to the college expenses" for G.F. "in accordance with the laws of the
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State of New Jersey." Defendant's child support was calculated from his gross
weekly income of $2,500 and plaintiff's gross weekly income of $3,454. The
MSA acknowledged plaintiff's final restraining order (FRO) against defendant
and his continued "reunification therapy" with G.F.
After the parties' divorce, defendant's relationship with G.F. remained
strained with limited contact and no overnight parenting time. In June 2022,
G.F. graduated high school and thereafter enrolled in a private university.
In January 2023, the Burlington County Probation Division notified
defendant that his child support obligation of $294 per week would be adjusted
to $328 per week to "provide for the biennial cost-of-living adjustment (COLA)"
under "New Jersey Court Rule 5:6B." The increased child support was effective
January 10.
Defendant subsequently moved for: G.F.'s emancipation; child support
termination; reimbursement of child support overpayments; proof of G.F.'s
college enrollment and transcripts; and other relief. Plaintiff cross-moved for:
a denial of defendant's motion in its entirety; defendant's prohibition from filing
future motions; a determination G.F. was unemancipated until college
graduation; child support "totaling $567 per week," which included $125 per
week in child support plus defendant's payment of 42% of "all living expenses";
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reimbursement of "$3,449 in out-of-pocket medical expenses"; "$15,427 in
extraordinary expenses"; contribution of "$12,474 towards . . . college expenses
pursuant to the parties['] [MSA]"; defendant's contribution to G.F.'s expenses of
"$945 per month" upon "proof of [G.F.'s] apartment lease"; tax credit
reimbursement of "$1,800 for the 2018, 2020[,] and 2022 tax years"; and other
relief. In support of his motion, defendant submitted an incomplete case
information statement (CIS) certifying a gross weekly income of $2,330.18.
Defendant did not provide his tax returns, W-2 statements, or three recent pay
stubs. Plaintiff submitted a CIS with recent pay stubs and a 2022 W-2 statement.
She also provided a proposed college "budget for [G.F.] with the [CIS]."
On May 26, 2023, following argument, the motion judge provided an
initial oral decision. On June 6, he issued an order accompanied by a written
statement of reasons, consistent with his initial ruling. The judge acknowledged
plaintiff's FRO against defendant and that there was "substantial motion
practice, primarily initiated by [d]efendant." Based on defendant's partial CIS,
without the required attachments of tax returns and pay stubs, the judge
determined defendant's and plaintiff's gross weekly incomes were approximately
$2,330 and $4,500, respectively. Defendant's accepted gross weekly income
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was less than his 2018 gross weekly income of $2,500 memorialized in the MSA
to calculate child support.
Regarding defendant's motion, the judge: denied G.F.'s emancipation "by
agreement of the parties"; denied termination of child support decreasing child
support to $300 a week from the COLA increased $328 child support amount;
granted proof of G.F.'s college enrollment each semester; granted defendant's
request to have no college contribution obligation; and addressed various other
relief. The judge granted in part plaintiff's cross-motion, requiring defendant to
pay $3,449 for unreimbursed out-of-pocket medical expenses and $1,800 in tax
credits, denying the other requested relief.
On appeal, defendant seeks reversal of the judge's decision regarding:
emancipation and child support; reimbursement for G.F.'s uncovered medical
expenses without "receipts and [o]ffice [v]isit [n]otes"; and the requirement to
pay $1,800 for "child tax credits for 2018, 2020, and 2022." Plaintiff has not
cross-appealed.
II.
We generally "accord deference to Family Part judges due to their 'special
jurisdiction and expertise in family [law] matters.'" Gormley v. Gormley, 462
N.J. Super. 433, 442 (App. Div. 2019) (alteration in original) (quoting Cesare v.
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Cesare, 154 N.J. 394, 413 (1998)). Our scope of review of Family Part orders
is limited. Cesare, 154 N.J. at 411. A judge's findings "are binding on appeal
so long as their determinations are 'supported by adequate, substantial, credible
evidence.'" Gormley, 462 N.J. Super. at 442 (quoting Cesare, 154 N.J. at
411-12).
"The parental obligation to support children until they are emancipated is
fundamental to a sound society." Ricci v. Ricci, 448 N.J. Super. 546, 569 (App.
Div. 2017) (quoting Kiken v. Kiken, 149 N.J. 441, 446 (1997)). "[I]t is also
firmly established that child support is for the benefit of the children; therefore,
the right to receive support belongs to the children, not the custodial parent."
Llewelyn v. Shewchuk, 440 N.J. Super. 207, 215 (App. Div. 2015) (alteration
in original) (quoting Colca v. Anson, 413 N.J. Super. 405, 414 (App. Div.
2010)).
Further, the "determination of emancipation is a legal issue, imposed
when the fundamental dependent relationship between parent and child ends."
Ricci, 448 N.J. Super. at 571. A child's reaching the age of majority of eighteen
is prima facie proof of emancipation, but it is not determinative. Llewelyn, 440
N.J. Super. at 216. Once the age of majority is established, "the burden of proof
to rebut the statutory presumption of emancipation shifts to the party or child
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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."[W]hile parents are not generally required to support a child over
eighteen, [the child's] enrollment in a full-time educational program has been
held to require continued support." Patetta v. Patetta, 358 N.J. Super. 90, 94
(App. Div. 2003); see also Newburgh v. Arrigo, 88 N.J. 529, 543 (1982); Khalaf
v. Khalaf, 58 N.J. 63, 71-72 (1971). "The need and capacity of a child for higher
education are two of the many factors that a court must consider in determining
the amount of child support to order." Gac v. Gac, 186 N.J. 535, 542 (2006)
(citing N.J.S.A. 2A:34-23(a)(5)).
According to the Rules of Court, the child support guidelines "shall not
be used to determine parental contributions for college or other post -secondary
education . . . expenses nor the amount of support for a child attending college."
Child Support Guidelines, Pressler & Verniero, N.J. Court Rules, Appendix IX-
A to R. 5:6A, ¶ 18 (2024). The guidelines are not utilized for a child away at
college because "part of the child's college expenses" are accounted for in the
child support guidelines award. Ibid. A "court[] faced with the question of
setting child support for [a] college student[] living away from home must assess
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all applicable facts and circumstances, weighing the factors set forth in N.J.S.A.
2A:34-23a." Jacoby v. Jacoby, 427 N.J. Super. 109, 113 (App. Div. 2012).
Issues of emancipation often require a plenary hearing, especially "'when the
submissions show there is a genuine and substantial factual dispute,' which the
trial court must resolve." Ricci, 448 N.J. Super. at 574 (quoting Shewchuk, 440
N.J. Super. at 217).
III.
We first consider defendant's contention that the judge erroneously
increased child support having failed to determine G.F. was emancipated. This
argument is unavailing because at oral argument defendant's counsel agreed that
G.F. was enrolled "in school" at a private university. Further, counsel
acknowledged receiving confirmation of G.F.'s full-time enrollment and that she
was "not presently emancipated for purposes of child support." Thus, the judge
correctly accepted "by consent" that G.F. was unemancipated in considering the
parties' requested motion relief.
We next turn to defendant's argument that his child support obligation was
increased in error. In accordance with the child support guidelines and the
parties' 2018 MSA, defendant originally agreed to pay $285 per week in child
support. At the time defendant filed his January 2023 motion, his child support
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obligation had increased to $328 per week with COLA increases. See R.
5:6B(a). Defendant's argument that the judge increased his child support
obligation is unsupported by the record because the judge ordered $300 per week
in child support—a $28 reduction from the COLA increase.
In considering G.F.'s child support needs under N.J.S.A. 2A:34-23(a)(1),
the judge ordered a decrease in defendant's child support obligation, finding
plaintiff's CIS included "a list of [G.F.]'s expenses, which total[ed]
approximately $2,967 monthly," and that "[c]ertain expenses" were
inappropriate for consideration. After discounting various expenses, the judge
concluded "[G.F.]'s necessary expenses . . . total[ed] approximately $3,000,"
without clarifying the numerical discrepancies. We note that during oral
argument before the judge, defendant's counsel addressed G.F.'s college costs
and needs, arguing "I do not believe as of today in the record we have what the
matrimonial [CIS] requires." Counsel correctly referenced that provision twelve
of Part G of the CIS requires "all relevant information pertaining to [college
expenses] . . . including but not limited to documentation of all costs and
information pertaining to . . . tuition, board and books, proof of enrollment,
proof of financial aid, scholarships, grants and student loans obtained." Our
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review of the record yields insufficient financial information regarding G.F.'s
college expenses.
Further, pursuant to N.J.S.A. 2A:34-23(a)(2), (3), (4), and (9), the judge
considered plaintiff's and defendant's respective gross weekly incomes of
approximately $4,500 and $2,330. However, the judge elucidated no reasons
for accepting defendant's reduced gross weekly income from the income
established at the time of divorce. Defendant's CIS gross income was accepted
contrary to Rule 5:5-4(a)(2) and (4), which required defendant to submit a
completed CIS with his most recent tax returns, W-2 statements, and three pay
stubs. While defendant included with his appeal appendix the CIS submitted
before the judge, he failed to provide plaintiff's CIS and only included her W-2
statements and recent pay stubs. Although "we are not 'obliged to attempt
review of an issue when the relevant portions of the record are not included ,'"
State v. D.F.W., 468 N.J. Super. 422, 447 (App. Div. 2021) (quoting Cmty.
Hosp. Grp., Inc. v. Blume Goldfaden Berkowitz Donnelly Fried & Forte, P.C. ,
381 N.J. Super. 119, 127 (App. Div. 2005)), we have considered defendant's
contentions nonetheless on the merits to the extent feasible.
Ultimately, the judge found $300 per week was appropriate "in view of
the parties' respective incomes and earning capacities, as well as G[.F.'s]
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reasonable expenses as set forth in [p]laintiff's application," but provided no
specific financial analysis and findings. Without sufficient findings to support
the decreased child support ordered, we are constrained to reverse and remand
for further proceedings consistent with this opinion. See Curtis v. Finneran, 83
N.J. 563, 570 (1980) ("[T]he trial court must state clearly its factual findings
and correlate them with the relevant legal conclusions."); see also R. 1:7-4(a).
Accordingly, we reverse the judge's child support order and remand to
calculate child support under the N.J.S.A. 2A:34-23(a) factors. The parties shall
submit their required financial information, and plaintiff shall provide updated
college information regarding G.F.'s financial needs. Specifically, the court
shall "determine the child[]'s individual needs and assess the income, assets,
debts, earning ability, age, and health of [the] child and each parent to reach an
appropriate level of support." Jacoby, 427 N.J. Super. at 122. If there are
material issues of fact in dispute, the judge hearing the matter shall conduct a
plenary hearing. See id. at 123; Spangenberg v. Kolakowski, 442 N.J. Super.
529, 540 (App. Div. 2015) (noting a plenary hearing is required when "material
factual disputes presented by the parties' pleadings bear directly on the legal
conclusions required to be made").
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We note plaintiff in opposition requests a review of the judge's order
denying defendant's college contribution and other extraordinary child-related
expenses, but she did not cross-appeal. She specifically argues the judge failed
to consider defendant's actions resulted in an FRO and G.F.'s limited visitation
with no overnights, as supported by her counselors' letters. Under Rule 2:3-4(a),
"[a] respondent may cross[-]appeal as of right" to the Appellate Division.
However, we will not consider a respondent's allegations of error asserted in a
brief but not raised by a cross-appeal. See Reich v. Borough of Fort Lee Zoning
Bd. of Adjustment, 414 N.J. Super. 483, 499 n.9 (App. Div. 2010) (declining to
address respondent's assertion of error because it was not properly raised by
cross-appeal). We only add that nothing in this opinion precludes plaintiff from
presenting a fully supported application for relief concerning contribution for
G.F.'s college expenses.
We next address defendant's argument that the judge erred in ordering
reimbursement for G.F.'s uninsured medical expenses. Specifically, defendant
contends plaintiff did not provide medical expense records, including office visit
notes, proving "[G.F.] was the patient and this was a medical visit and not a
cosmetic treatment." We are unpersuaded. Preliminarily, we note defendant's
failure to provide G.F.'s medical documentation, which was considered by the
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judge, impeded our review. The record illustrates the judge considered
plaintiff's exhibit, "a chart of the medical expenses and the [treatment] date[s]"
including the explanations of benefits. Defendant's counsel acknowledged
receipt of the submissions, arguing the invoices were not provided to defendant
contemporaneously with the medical treatment.
Rule 2:5-4(a) states in relevant part: "The record on appeal shall consist
of all papers on file in the court . . . , with all entries as to matters made on the
records of such courts." See also R. 2:6-1(a)(1)(I) (requiring the appendix to
contain parts of the record "essential to the proper consideration of the issues").
We further note the motion transcript references other documents which
defendant did not provide in his appendix on appeal. See D.F.W., 468 N.J.
Super. at 447. On the record provided, we discern no reason to disturb the
judge's order requiring defendant to reimburse plaintiff $3,449 for medical
expenses.
We also reject defendant's contention that the judge erred in requiring his
payment of $1,800 for three years of tax credits taken for G.F. The judge
correctly determined the MSA required defendant to remain "current in his child
support." The judge found sufficient proofs that defendant was in arrears and
enforced "the agreement of the parties." The record reflects the judge
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considered arrears documentation, which was also not included in defendant's
appendix on appeal. Thus, because defendant failed to demonstrate evidence in
the record established that no arrearages existed, we again discern no reason to
disturb the judge's decision.
Finally, because the judge expressed opinions, weighed evidence, "and
may have a commitment to his findings," the preferable course is to assign this
matter to a different judge on remand. Carmichael v. Bryan, 310 N.J. Super. 34,
49 (App. Div. 1998); Freedman v. Freedman, 474 N.J. Super. 291, 308 (App.
Div. 2023); see also R. 1:12-1(d). We express no views regarding the outcome
on remand. Because of the potential import on G.F., the remand shall be
expeditiously completed within sixty days and child support shall continue to be
collected by probation under the existing order while pending full review on
remand.
Affirmed in part, reversed in part, and remanded for proceedings
consistent with this opinion. We do not retain jurisdiction.
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