KIMBERLY ROBINSON VS. ARMANDO ONORATI (FM-11-0489-03, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4687-16T3
KIMBERLY ROBINSON,
Plaintiff-Respondent/
Cross-Appellant,
v.
ARMANDO ONORATI,
Defendant-Appellant/
Cross-Respondent.
____________________________
Argued February 4, 2019 – Decided March 14, 2019
Before Judges Messano and Gooden Brown.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Mercer County,
Docket No. FM-11-0489-03.
Michael H. Nieschmidt argued the cause for
appellant/cross-respondent.
Jennifer D. Zoschak argued the cause for
respondent/cross-appellant (Oswald & Zoschak, PC,
attorneys; Jennifer D. Zoschak, on the brief).
PER CURIAM
In this post-judgment matrimonial matter, defendant (ex-husband) appeals
from the May 26, 2017 Family Part order, emancipating the parties' son , born
January 1995; recalculating child support and ordering college contributions for
the parties' unemancipated daughter, born October 1999; and denying him
counsel fees. Defendant argues the motion judge erred in emancipating their
son at the end of his first college semester, rather than when he graduated from
high school; finding his request to compel production of their son's college
transcripts moot; recalculating child support based upon an erroneous
emancipation date and plaintiff's (ex-wife) underemployed income; ordering
college contributions for their daughter without considering the factors
enumerated in Newburgh v. Arrigo, 88 N.J. 529 (1982); and failing to analyze
the requisite factors in denying him counsel fees. For the reasons that follow,
we affirm in part, reverse in part, and remand for further proceedings.1
1
Although plaintiff cross-appealed from the provisions of the order
emancipating the parties' son effective December 11, 2013, denying her request
for contribution to his college expenses, and denying her request for fees and
costs, she did not brief those issues in her merits brief. "[A]n issue not briefed
is deemed waived." Pressler & Verneiro, Current N.J. Court Rules, cmt. 5 on
R. 2:6-2 (2019). See also Telebright Corp. v. Dir., Div. of Taxation, 424 N.J.
Super. 384, 393 (App. Div. 2012) (deeming a contention waived when the party
failed to include any arguments supporting the contention in its brief).
Accordingly, plaintiff's "cross-appeal must be considered abandoned."
Zavodnick v. Leven, 340 N.J. Super. 94, 103 (App. Div. 2001).
A-4687-16T3
2
The parties married in 1997 and divorced in 2003. Under the parties'
property settlement agreement (PSA), which was incorporated into their June
25, 2003 final judgment of divorce (FJOD), the parties had "joint custody" of
the children, with plaintiff designated "the parent of primary residence."
Pursuant to the PSA, defendant was required to pay child support of $137 per
week, "in accordance with the New Jersey Child Support Guidelines"
(Guidelines). The child support payment was calculated with plaintiff and
defendant "having gross taxable income" of "$680[]" and "$671[] per week[,]"
respectively. Further, under the PSA, child support "payments shall continue
until the children are emancipated in accordance with the decisional law of the
State of New Jersey."
Regarding college contributions, the PSA specified:
[N]o consideration [was] given in this [PSA] with
respect to the college education expenses of the[]
children or the direct support, if any, to be paid on
behalf of said child in the event that a child pursues a
post high school education. That issue [was] expressly
reserved for future determination and if the parties
[were] not able to reach agreement, then in that event,
they may apply to the [c]ourt for a judicial
determination as to their respective responsibilities.
On April 4, 2017, defendant moved to compel plaintiff to provide him
with copies of their son's college transcripts; emancipate their son effective
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3
December 11, 2013, the last date he was believed to have attended college as a
full-time student; recalculate child support for their daughter, effective
December 11, 2013; credit defendant for all child support overpayments; and
award defendant counsel fees. Defendant supplied the court with financial
documents from 2013 to 2016, as well as a current Case Information Statement
(CIS), as required by Rule 5:5-4(a).
Regarding emancipation, in his supporting certification, defendant
asserted that their son, A.O., "graduated from high school in June 2013," and
"began attending Mercer County Community College [(Mercer County),]" a
"[two-year] institution," in the Fall 2013 semester. According to defendant, both
A.O., with whom he had a "strained" relationship, and plaintiff advised him that
A.O. "was attending college full[-]time" and "was doing well with his studies[,]"
leading defendant to believe A.O. would graduate in May 2015. However, when
"[p]laintiff informed [him] that [A.O.] would be continuing his studies at
[Mercer County] in the Fall [2015] [s]emester," he requested from both of them,
"copies of . . . grade reports and transcripts from [Mercer County]" to resolve
the inconsistency.
According to defendant, despite his repeated requests, "[a]t no time" was
he "ever provided" with A.O.'s "transcripts," or "grade reports," from Mercer
A-4687-16T3
4
County. Instead, he was only given "registration print[-]outs" for certain
semesters. Defendant asserted that a review of those "registration print[-]outs"
showed that "at most," A.O. only "attended [Mercer County] full[-]time . . . in
the Fall [2013] [s]emester, which ended on December 11, 2013." Additionally,
according to defendant, while attending college, A.O. "worked on average five
. . . days per week at two . . . different positions[,]" as a "[l]ot [a]ttendant" for a
"new car dealer" and a "[d]ishwasher and [d]river for a local pizzeria[.]"
Regarding the recalculation of child support, defendant certified that since
the divorce, both parties remarried and, pursuant to a "[c]onsent [o]rder of
January 7, 2010," the court increased his child support obligation from the PSA
amount to $200 weekly "based on [the parties'] agreed upon [weekly] income"
of "$867" for plaintiff and "[$1121]" for defendant. Thereafter, following the
birth of a child with his new wife in March 2010, on September 27, 2010, "the
[c]ourt granted [his unopposed] application" to reduce "[his] [c]hild [s]upport
obligation [to] $162 per week," using the same income figures specified "in the
January 7, 2010 [c]onsent [o]rder . . . , but also factoring in the income of [his]
current spouse" and "day care" expenses. Defendant acknowledged that he was
unaware of plaintiff's current earnings but believed "she continue[d] to work in
the exact same type of dental assistant/hygienist position in which she has
A-4687-16T3
5
historically worked[,]" and "assume[d]" that "commensurate with inflation," her
weekly "earnings have increased" from the $867 she "agreed" to in the January
7, 2010 consent order.
Finally, defendant asserted that "[p]laintiff's refusal to provide [him] with
[A.O.'s] academic records . . . [violated] the provisions of the [PSA,]" requiring
both parties "from time to time, at the request of the other[,] . . . [to] deliver[] to
the other party any and all further instruments that [may] be responsibly required
to give full force and effect to the provisions of [the PSA]." Accordingly,
defendant sought counsel fees based on plaintiff's "bad faith" and "lack[]" of
"integrity."
Plaintiff opposed the motion and cross-moved to recalculate child support,
require the parties to contribute to the college expenses of both children in
proportion to their respective income, and award her counsel fees. Regarding
emancipation, in her reply certification, plaintiff averred that in the Fall 2013
semester, A.O. "signed up [at Mercer County] for thirteen . . . credits," but failed
one class and "earned ten . . . credits" for that semester. However, "[o]ver the
last three . . . years," A.O. "continued to take classes and [was] due to graduate
with an Associate[] in Science Degree" after completing the Summer 2017
semester. Thereafter, A.O. "plan[ned] to attend [Rowan University] beginning
A-4687-16T3
6
Fall 2017." Plaintiff acknowledged that despite receiving assistance with
expenses from her and her new husband, A.O. "has worked part-time jobs in
order to pay for his education" and "[i]n 2014," had "to work more hours" and
"take fewer classes." However, she denied "'represent[ing]' anything to
[d]efendant about [A.O.'s] grades[,]" and explained that "[l]ike many students,"
A.O. "withdrew from classes" that "he felt . . . were too difficult," and "'tested
the waters,' taking classes he thought might be of interest." Attached to her
certification, plaintiff submitted a computer print-out of A.O.'s Mercer County
transcript and grades, showing he earned fifty-seven of the seventy-six credits
needed to graduate, as well as Mercer County registration statements ranging
from the Fall 2013 semester to the Summer 2017 semester.
Regarding college contributions, plaintiff sought an order requiring both
parents to contribute to both A.O.'s college expenses as well as their daughter's,
G.O., who was still in high school but "[would] be attending college in another
year[.]" Plaintiff asserted she did "not want to have to file a motion and spend
money . . . just to answer the question of whether or not [d]efendant will
contribute." Regarding the recalculation of child support, plaintiff certified she
also had another child with her new spouse and was entitled to the other
dependent deduction. Plaintiff averred she worked as "a dental assistant" with
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gross weekly earnings of $633, as evidenced by her 2016 tax return attached to
her CIS. Factoring in her new husband's earnings, plaintiff believed child
support for A.O. and G.O. should be $197 weekly, and $172 for G.O. alone if
A.O. was emancipated. As to counsel fees, plaintiff denied she "refused to
cooperate in the past" or "acted in bad faith," and explained that "[defendant]
never approached [her] to discuss [their] son's status, and . . . never discussed it
with [their] son directly." Thus, given "the disparity in [their] incomes,"
plaintiff sought an award of "counsel fees."
In a reply certification, defendant countered that based on the Mercer
County records submitted by plaintiff, "[A.O.] has been attending Mercer
County . . . for four . . . years[,]" but "[o]ut of eight . . . semesters," he was "a
part-time student for six" and "a full[-]time student" for "only . . . the two . . .
most recent semesters." Accordingly, defendant urged the court "to emancipate
[A.O.], effective his high school graduation day [in] June 2013," rather than
December 2013 as he had originally requested.
Regarding contributing to G.O.'s college expenses, defendant asserted he
had no objection to "paying whatever the [c]ourt determine[d]." However,
defendant noted he had been "left out" of any "discussion" regarding G.O.'s
college attendance "[]just like with [A.O.]" Additionally, defendant noted that
A-4687-16T3
8
"[p]laintiff's household income" and "household balance sheet" were "far, far
superior to" defendant's, and, when they divorced, neither party had "an
expectation" that their "children would attend college," as both parties "only
attended trade-schools, earning two . . . year degrees."
As to the recalculation of child support, defendant disputed plaintiff's
claim that her gross weekly income was $633. According to defendant, "back
in January 2010," plaintiff "agreed" to be imputed $867 as weekly gross income
because she "acknowledged . . . that she was underemployed." Defendant
asserted that currently, "[p]laintiff's full[-]time earnings should . . . be $960
weekly" because "a review of [her] pay stubs provided with her [CIS] reveal[ed]
that [she was] only working around twenty[-]six . . . hours per week at $24 per
hour[,]" indicating that she was still voluntarily underemployed.
Following oral argument, on May 26, 2017, in an oral opinion from the
bench, the judge granted in part, and denied in part, defendant's motion. As to
emancipation, "given [A.O.'s] age, [and] the sporadic and pervasively part[-
]time attendance at post[-]secondary education," the judge emancipated A.O.,
effective December 11, 2013, the first date he failed to maintain a full-time
credit load at Mercer County. The judge credited A.O.'s perseverance but could
not "find that his lengthy and part[-]time participation in post[-]secondary
A-4687-16T3
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education suffice[d] to defeat defendant's application for emancipation." In that
regard, the judge rejected plaintiff's argument that A.O. remained within the
sphere of influence and "took a light course load because of his need to work
two part[-]time jobs." The judge determined that defendant did not "contribute
to [A.O.'s] need to work" because defendant was up-to-date in his child support
payments and had "no recent history of non-payment." See Filippone v. Lee,
304 N.J. Super. 301, 308 (App. Div. 1997) ("essential [to the emancipation]
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'" (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995))).
In light of his decision, the judge denied as "moot" defendant's request for
all of A.O.'s college transcripts because plaintiff provided them with her
"opposition" and "cross-motion," and "the [c]ourt's disposition of . . . defendant's
claims for relief eliminate[d] defendant's ongoing need for those . . . transcripts."
The judge acknowledged that the transcripts were not "official," but noted "there
was no real question as to [their] authenticity or completeness."
Likewise, the judge "denie[d] defendant's application for a retroactive
modification of . . . child support back to [2013]." Instead, the judge ordered
"the recalculation of child support" to "be effective April 4[], 2017, the filing
A-4687-16T3
10
date of defendant's application[,]" obviating the need for any overpayment
credit. The judge acknowledged that "[a]lthough the retroactivity statute,
specifically N.J.S.A. 2A:17-56.23[a,] does not prohibit the retroactive
diminution of child support in instances of emancipation, the statute does not
require it, nor does it strip the Family Part judges of their discretion to fashion
court orders that would avoid injustice."
Observing that "a retroactive disgorgement of child support" from
plaintiff would "be substantial[,]" and child support payments were "used for
the benefit of the children" the judge concluded that "it would be an unnecessary
hardship" and "an injustice upon [plaintiff] . . . to [so] order." The judge
explained "plaintiff has supported the children, including [A.O.], by way of
continuing to provide them housing, providing tuition assistance , and other
forms of support. To retroactively require disgorgement would be unjust and
unfair."
Turning to plaintiff's cross-motion, the judge granted her application to
recalculate child support "to provide both parties with appropriate credit for the
other dependent deduction[,]" given that "[b]oth parties now have . . . new
family members for whom they are responsible." However, the judge's order
recalculating defendant's child support obligation to $172 weekly was based
A-4687-16T3
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upon plaintiff's gross weekly income of $633, which defendant had vehemently
disputed. As to plaintiff's application for college contributions, the judge
determined that "[b]y consent of the parties, both parents shall contribute to the
college expenses of [G.O.,]" who was then "a junior" in high school, and planned
"to attend college" after graduation.
The judge continued:
Plaintiff also seeks an order that the parties are
responsible proportionate to their income. Defendant
objects[,] arguing that [it is] too speculative at this point
and that that determination should not be made until
such time as more particulars are known with respect to
tuition and the other factors elucidated in Newburgh
....
The [c]ourt understands defendant's argument,
however, every dollar spent on counsel fees to litigate
questions of college contribution is one dollar less spent
on the post[-]secondary education of the parties[']
child. So without prejudice to a future determination of
the parties['] respective contributions, by way either of
mutual agreement between the two of them or future
order of this court, the parties shall contribute to
[G.O.'s] college expenses in proportion to their income
as calculated by the [Guidelines], specifically [thirty-
five] percent plaintiff, [sixty-five] percent defendant.
Finally, the judge denied both parties' requests for counsel fees ,
"determin[ing] that both parties shall be responsible for their own legal fees."
The judge explained:
A-4687-16T3
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[B]oth parties on the different issues that they raise in
their respective applications, raise positions that were
reasonable, they had a fair degree of success on both
parties['] applications and, likewise, the [c]ourt finds
that based upon the ability to pay, that both parties have
the ability to pay their own counsel fees and costs.
The judge entered a memorializing order and this appeal followed.
The scope of our review of a Family Part order is limited. Cesare v.
Cesare, 154 N.J. 394, 411 (1998). We generally defer to the Family Part's fact-
finding because of the court's "special expertise" in family matters and ability
to make credibility determinations. N.J. Div. of Youth & Family Servs. v. F.M.,
211 N.J. 420, 448 (2012). We defer to a judge's findings of fact unless they lack
support in the record or are inconsistent with the substantial, credible evidence.
Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 483-84 (1974). We
likewise defer to the Family Part on decisions that are committed to the trial
court's exercise of discretion. Milne v. Goldenberg, 428 N.J. Super. 184, 197
(App. Div. 2012). However, we owe no special deference to the court's
"interpretation of the law and the legal consequences that flow from established
facts." Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378
(1995). Also, if the "court ignores applicable standards, we are compelled to
reverse and remand for further proceedings." Gotlib v. Gotlib, 399 N.J. Super.
295, 309 (App. Div. 2008).
A-4687-16T3
13
On the issue of emancipation, we have said that "[n]o specific age equates
to emancipation of a child[,]" and attainment of the age of eighteen is only prima
facie "and not conclusive proof" of emancipation. Patetta v. Patetta, 358 N.J.
Super. 90, 93 (App. Div. 2003). The child's needs are determinative, and
"enrollment in a full-time educational program" may compel continued support.
Id. at 94. While the fact that a child may "take a brief hiatus from educational
pursuits," does not, in and of itself, demonstrate the child has "moved beyond
the sphere of influence of [his] parents[,]" Keegan v. Keegan, 326 N.J. Super.
289, 295 (App. Div. 1999), a child's lack of commitment to his education, or the
unexcused failure to remain a diligent, full-time student may be a basis for
emancipation because our law does not require "support and concomitant
deferred emancipation for a child unable to perform adequately in his academic
program." Filippone, 304 N.J. Super. at 311-12.
Here, we discern no abuse of discretion in the judge's decision to
emancipate A.O. effective December 11, 2013, the first date he failed to
maintain a full-time college credit load, rather than after he graduated from high
school as urged by defendant. Likewise, we agree that defendant's continued
request for A.O.'s official Mercer County transcripts was rendered moot by the
judge's decision. An issue is considered moot when the "decision sought in a
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matter, when rendered, can have no practical effect on the existing controversy."
Redd v. Bowman, 223 N.J. 87, 104 (2015) (quoting Deutsche Bank Nat'l Trust
Co. v. Mitchell, 422 N.J. Super. 214, 221-22 (App. Div. 2011)).
As to the judge's decision to recalculate child support retroactive to the
date defendant filed his motion, rather than the emancipation date, New Jersey's
anti-retroactivity statute generally prohibits retroactive modification of an
existing child support order to a date prior to the filing date of a motion for such
relief, or forty-five days earlier upon written notice. N.J.S.A. 2A:17-56.23a.
However, we have previously held that the anti-retroactivity statute does not
prevent a retroactive termination of child support when a child is retroactively
emancipated. See Bowens v. Bowens, 286 N.J. Super. 70, 73 (App. Div. 1995)
(permitting retroactive emancipation and termination of child support where an
obligor sought a retroactive cancellation of unpaid arrearages following the date
of emancipation); see also Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App.
Div. 1995) (emancipating and terminating child support for two children two
years apart in age, with each emancipation effective retroactive to each child's
eighteenth birthday, and holding "[w]here there is no longer a duty of support
by virtue of a judicial declaration of emancipation, no child support can become
due").
A-4687-16T3
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Factors to consider to accomplish "mutual fairness and equity" when a
party seeks modification of a previously paid child support obligation prior to
the motion filing date were thoroughly discussed in Harrington v. Harrington,
446 N.J. Super. 399, 411 (Ch. Div. 2016). There, the court identified a
comprehensive list of considerations relevant to a court's analysis of "the
comparative equities of whether to retroactively modify child support." Id. at
411-12.
Those considerations include the length of time and reasons for the
obligor's delay in filing the motion; whether "the non-custodial parent
continue[d] to pay the same level of child support to the obligee" even after he
could have filed the motion; "any fraud or misrepresentation" by the custodial
parent or the child that caused the obligor's delay in filing the motion; whether
the "custodial parent failed to communicate facts that would have led to
emancipation" at an earlier date and whether the non-custodial parent could
"have nonetheless otherwise easily obtained such information with a reasonable
degree of parental diligence and inquiry"; whether the "proposed retroactive
modification of child support" would be "unduly cumbersome and complicated"
to accurately calculate; whether the non-custodial parent seeks "only a credit,"
rather than "an actual return of child support already paid to, and used by, the
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custodial parent toward the financial expenses of the child living in the custodial
parent's home"; the potential of causing "an inequitable financial hardship" if
the "custodial parent who previously received [the] funds in good faith" were
required to repay the funds; and "any other factors the court deems relevant to
the analysis[.]" Id. at 407-09.
Here, we discern no abuse of discretion in the judge's determination that
because the overpayment would be substantial and plaintiff used the child
support payments for the benefit of A.O., a retroactive disgorgement by plaintiff
would create an unnecessary financial hardship that would be "unjust and
unfair." Given the judge's keen awareness of plaintiff's financial circumstances,
we see no reason to interfere with his imposition of an equitable remedy.
Turning to defendant's contention that the judge erred in recalculating the
child support payment based on plaintiff's "underemployed" income, in
calculating child support, the court is obliged to consider the "potential earning
capacity of an individual, not his or her actual income[.]" Caplan v. Caplan, 182
N.J. 250, 268 (2005) (quoting Halliwell v. Halliwell, 326 N.J. Super. 442, 448
(App. Div. 1999)). When a parent is "voluntarily unemployed or
underemployed" "without just cause," income should be imputed to "promot[e]
a fair and just allocation of the support obligation" of both parents, id. at 268-
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69, and when a party appeals a decision to impute or not impute income, we will
only disturb the result if "the underlying findings are inconsistent with or
unsupported by competent evidence." Storey v. Storey, 373 N.J. Super. 464,
474-75 (App. Div. 2004).
Here, defendant contends the judge erred by failing to, at the very least,
impute to plaintiff the $867 weekly income she agreed to in the January 7, 2010
consent order that was reaffirmed in the September 27, 2010 court order, and
instead accepting plaintiff's claim that her weekly income was $633. During
oral argument, when the judge queried plaintiff's attorney on defendant's claim
that she was "deflating [her] client's income[,]" plaintiff's attorney responded:
My client is working [twenty-six] hours a week. She
works part[-]time, everybody in her office works part[-
]time. There is no full[-]time employment available
. . . . [W]hen you work full[-]time and [you are] being
provided with benefits, [you are] not getting $24 an
hour, [you are] going to be earning significantly less
per hour. So [it is] going to even up as it is.
Without hearing any testimony, the judge accepted plaintiff's claim and
her attorney's representation that her weekly income was $633, despite
defendant's contrary claim and clear evidence in the record of a higher income
attributed to her in the past. We thus conclude the judge's decision was not
supported by competent evidence. That reason, standing alone, is a sufficient
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18
basis for reversing the child support order and remanding for a hearing on
plaintiff's earning potential and a determination of whether imputing income to
her is justified. Where "no hearing takes place, no evidence is admitted, and no
findings of fact are made," we owe no deference to the trial court's conclusions.
N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009).
Next, we consider defendant's argument that the judge erred in ordering
college contributions for G.O. without considering the Newburgh factors.2
2
The Newburgh factors for determining parents' college contributions include:
(1) whether the parent, if still living with the child,
would have contributed toward the costs of the
requested higher education; (2) the effect of the
background, values[,] and goals of the parent on the
reasonableness of the expectation of the child for higher
education; (3) the amount of the contribution sought by
the child for the cost of higher education; (4) the ability
of the parent to pay that cost; (5) the relationship of the
requested 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
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19
While the Family Part has "substantial discretion" in determining the parents'
obligation to pay a child's college expenses, if the court fails to consider and
apply the Newburgh factors, "we are compelled to reverse and remand for
further proceedings." Gotlib, 399 N.J. Super. at 308-09. In Gotlib, the trial
court failed to apply the Newburgh factors and instead ordered each parent to
pay half the college expenses, although the parties had not agreed to that
arrangement. We noted:
The JOD is silent as to how the parties would divide
higher education expenses; the provision merely stated
that "[b]oth parties shall contribute to the college costs
of the children in accordance with appropriate legal
standards." In arriving at his decision, the motion judge
did not address the Newburgh and statutory factors
reflected in N.J.S.A. 2A:34-23(a). The court simply
appears to have divided the expenses equally. This
approach is not sustainable.
[Id. at 310.]
of the education requested to any prior training and to
the overall long-range goals of the child.
[Newburgh, 88 N.J. at 545.]
These factors were reflected in later legislation concerning the parents' child
support obligations. N.J.S.A. 2A:34-23(a); see Kiken v. Kiken, 149 N.J. 441,
449-50 (1997).
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Likewise, here, despite acknowledging Newburgh's requirement, the
judge allocated college expenses for G.O. in proportion to their respective
incomes as specified in the Guidelines, notwithstanding the fact that defendant
disputed plaintiff's earnings. We recognize the judge's good intentions in that
he made the determination in order to spare the parties the expense of litigating
the issue later and to allow them to devote those averted litigation expenses to
G.O.'s college fund. However, despite acknowledging his limited funds, it is
apparent that defendant does not share the judge's concern. Accordingly, we are
constrained to reverse and remand for the judge to address the parties'
obligations to G.O.'s college expenses applying the Newburgh factors.
Finally, we consider defendant's contention that the judge failed to
analyze the requisite factors in denying him counsel fees. An award of counsel
fees in a matrimonial action is a discretionary determination, Williams v.
Williams, 59 N.J. 229, 233 (1971), reached after consideration of "the factors
set forth in the court rule on counsel fees, the financial circumstances of the
parties, and the good or bad faith of either party." N.J.S.A. 2A:34-23.
Rule 5:3-5(c) permits an award of fees upon consideration of the
following nine factors:
(1) the financial circumstances of the parties; (2) the
ability of the parties to pay their own fees or to
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contribute to the fees of the other party; (3) the
reasonableness and good faith of the positions
advanced by the parties both during and prior to trial;
(4) the extent of the fees incurred by both parties; (5)
any fees previously awarded; (6) the amount of fees
previously paid to counsel by each party; (7) the results
obtained; (8) the degree to which fees were incurred to
enforce existing orders or to compel discovery; and (9)
any other factor bearing on the fairness of an award.
[R. 5:3-5(c).]
See Mani v. Mani, 183 N.J. 70, 94-95 (2005) (explaining a court "must" consider
these factors even though Rule 5:3-5(c) says a court "should" consider them).
However, not every factor must be considered, Reese v. Weis, 430 N.J. Super.
552, 586 (App. Div. 2013), and "[w]e will disturb a trial court's determination
on counsel fees only on the 'rarest occasion,' and then only because of clear
abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div.
2008) (citing Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).
Here, we discern no clear abuse of discretion. The judge found that both
parties had reasonable positions, achieved some success, and had the ability to
bear their respective legal costs. We are satisfied that the judge's decision had
adequate support in the record, and we will not disturb that determination. In
sum, we reverse and remand for the judge to reconsider defendant's child support
obligation based on additional evidence on plaintiff's earning potential, and to
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address the parties' obligations to G.O.'s college expenses, applying the
Newburgh factors. We affirm in all other respects.
Affirmed in part; reversed and remanded in part for further proceedings
consistent with this opinion. We do not retain jurisdiction.
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