LORI-ANN K. GIPPLE v. MICHAEL W. ROGERS (FD-05-0046-99, CAPE MAY 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NOT FOR PUBLICATION WITHOUT THE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-1726-20
LORI-ANN K. GIPPLE,
Plaintiff-Respondent,
v.
MICHAEL W. ROGERS,
Defendant-Appellant.
_________________________
Submitted May 11, 2022 – Decided July 27, 2022
Before Judges Whipple and Susswein.
On appeal before the Superior Court of New Jersey,
Cape May County, Family Part, Docket No.
FD-05-0046-99.
Michael W. Rogers, appellant pro se.
Lori-Ann K. Gipple, appellant pro se.
PER CURIAM
Defendant Michael W. Rogers appeals from a February 1, 2021 Family
Part order denying reconsideration of an order pertaining to his child support
obligations. Defendant and plaintiff Lori-Ann K. Gipple share a daughter; the
daughter was twenty years old at the time the order was denied. Defendant
sought to terminate his child support obligation and receive a credit toward his
arrears. He raises numerous contentions on appeal, including that the
reconsideration judge erred by (1) accepting the child's testimony and an
enrollment letter as sufficient proof of the child's full-time college attendance;
(2) refusing to terminate his child support obligation based on the child's
income, indicating that she was financially independent; and (3) modifying the
credit previously awarded by another judge to reflect the date the child's
residence switched from defendant back to plaintiff, rather than the date on
which plaintiff had filed a motion for modification of child support, thereby
violating N.J.S.A. 2A:17-56.23(a).
After carefully reviewing the record in light of the arguments of the self-
represented parties and the applicable legal principles, we affirm the
reconsideration judge's rulings with respect to the child's college attendance and
her financial independence. However, it is unclear on the record before us
whether the court's calculation of credit towards defendant's arrears in practical
effect constitutes a retroactive modification of child support. The
reconsideration judge's oral opinion indicates that the modification relates back
A-1726-20
2
to when plaintiff filed her motion to modify child support. However, it is
unclear whether the court's calculation of the credit towards defendant's arrears
instead correlated to the date when the child's primary residence switched back
to her mother—an event that precedes the filing of plaintiff's motion for
modification of child support. We therefore remand the matter to the Family
court for the limited purposes of clarifying its ruling with respect to the
calculation of credits, and, if necessary, recalculating arrears to reflect the date
on which plaintiff filed her motion to modify child support.
I.
The parties divorced in 2011, followed by substantial post-divorce
litigation. We summarize the relevant facts and procedural history leading up
to the Family Part order at issue in this appeal.
On October 10, 2018, plaintiff filed a motion to terminate defendant's
child support obligation because their daughter had switched from living in
plaintiff's home to defendant's. On November 7, 2018, the parties by mutual
consent agreed that defendant would become the parent of primary residence.
At that time, defendant did not pursue any alteration in the child support
arrangement.
A-1726-20
3
On January 5, 2019, defendant was arrested on a warrant for unpaid child
support. Two days later, he filed a motion seeking child support from plaintiff.
On February 13, 2019, the Family Part judge (initial judge) ordered:
Plaintiff's child support obligation of $52.00 per week
shall be credited toward Defendant's arrears owed to
Plaintiff under case# CS11346849C. Plaintiff shall not
pay anything toward this obligation. The amount of
$1,508.00 representing $52.00 per week x 29 weeks
(2/13/19 through 8/28/2018) shall be credited to
Defendant's arrears. In September 2019 the Defendant
shall provide to Plaintiff and Probation proof that the
child is a full-time college student (completely enrolled
in 12 credits). If the Child is enrolled full time in school
then the obligation of $52.00 per week shall be
established and an appropriate credit/adjustment
process shall be implemented under case
CS90520977A. If the Child is not enrolled in school
full time, or if no school documentation is provided by
the Defendant by September 1, 2019, then the credit of
$1,508 shall be removed from case CS11346849C.
On or around July 16, 2019, the child moved back in with her mother,
plaintiff. Soon after, in August 2019, plaintiff was hospitalized in connection
with a life-threatening cerebral aneurysm that required surgery. Following the
surgery, plaintiff's recovery spanned "a few months." Plaintiff asserts that her
post-surgery recuperation explains why she did not file a motion to re-establish
child support until November 26, 2019.
A-1726-20
4
On December 19, 2019, a second judge convened a brief proceeding on
plaintiff's request to re-establish child support. During the hearing, defendant
expressed his wish to terminate his support obligation. The matter was
accordingly rescheduled for January 31, 2020, in order to allow for the child to
be present to hear defendant's wish to terminate child support. Plaintiff was
ordered to "make sure that the child attends the relisted Hearing for
Modification." Both parties were instructed to provide proof of income.
The same judge again presided over the January 31, 2020 hearing.
Plaintiff provided the requested proof of income along with an enrollment letter,
which she offered as proof of the child's full-time college enrollment. Defendant
failed to furnish proof of income as instructed. The child attended as the second
judge had ordered, and testified as to her college enrollment. The judge denied
defendant's motion to terminate child support. Lacking any proof of defendant's
income, the judge instead imputed minimum wage for the purpose of calculating
defendant's child support obligation. The second judge ultimately entered a new
child support order setting defendant's child support obligation at $101 weekly,
plus an additional $25 weekly payment toward his child support arrearages (then
totaling $4403).
A-1726-20
5
On February 19, 2020, plaintiff filed a motion for reconsideration. She
sought a grant of retroactive child support backdated to November 26, 2019, the
day on which she had filed her motion to re-establish defendant's child support
obligation. Plaintiff also requested that the court recalculate defendant's child
support obligation using his actual rather than imputed income. She contended
that defendant was receiving cash "under the table" as a member of a band.
In March 2020, the COVID-19 pandemic caused the courts to shut down.
On September 24, 2020, defendant filed a motion to terminate child support on
the grounds that his daughter was "more than financially able to pay for her own
room and board" and had not been attending remote classes as a full-time student
at Atlantic Cape Community College. In October 2020, the plaintiff received
notice of defendant's motion to terminate his child support obligation. This
notice led plaintiff to inquire about the status of her motion for reconsideration
that she had filed on February 19, 2020. An investigation by the clerk concluded
that the motion had been misplaced and was never put before the judge.
On November 9, 2020, a third judge (reconsideration judge) conducted a
virtual hearing on plaintiff's motion for reconsideration. The motion was
granted, and a new virtual hearing was scheduled for November 30, 2020. In
order to recalculate defendant's support obligation, the reconsideration judge
A-1726-20
6
ordered the parties to bring to the November 30 hearing proof of income,
including the previous three years of federal income tax returns, disability
income, and their three most recent paystubs. Plaintiff was additionally ordered
to produce proof of the child's college enrollment.
The November 30, 2020, hearing needed to be re-scheduled and was
instead reconvened via Zoom on December 14, 2020. The reconsideration judge
heard the parties' arguments on defendant's motion to terminate child support
and on plaintiff's motion to retroactively re-establish child support effective to
November 26, 2019. Plaintiff provided proof of her income as well as the
requested enrollment letter as proof of the child's full-time college student
status. The reconsideration judge confirmed that defendant had already
provided proof of his income as ordered.
Two critical facts were in dispute at the hearing: whether the child was
truly a full-time college student, and when the child switched residences from
her father's home back to her mother's. During the Zoom hearing, the child
arrived at her mother's home. After the child was sworn in, the reconsideration
judge questioned her in order to definitively resolve her student status and the
date on which she moved from her father's home back to her mother's. The child
confirmed that she was a full-time college student and that she had stopped
A-1726-20
7
residing with defendant and moved back in with her mother around her birthday,
which is July 19, 2000. The judge found the child's testimony credible. The
judge concluded that the child was a full-time college student. The child's
testimony also resolved when she resumed residing with her mother.
The reconsideration judge thereupon denied defendant's motion to
terminate support and, as the proof of income he had submitted "d[id] not show
that he [was] really making any money[,]" the judge again calculated defendant's
child support obligation by imputing minimum wage. 1 As the child's testimony
confirmed plaintiff's claim that defendant had ceased being the parent of primary
residence in July 2019, the reconsideration judge reduced the number of weeks
for which defendant had been awarded credit from twenty-nine weeks down to
twenty-four weeks. At the conclusion of the hearing, the reconsideration judge
awarded defendant a credit of $1,248 toward his arrears and set his child support
obligation at $101 per week, plus an additional $9 per week to be directed toward
the outstanding balance of arrears, setting the "effective date []as November 26,
2019."
1
A "court is authorized to impute income for the purpose of determining child
support when a parent is found to be voluntarily unemployed or underemployed
without cause." Elrom v Elrom, 439 N.J. Super. 424, 434 (App. Div. 2015).
A-1726-20
8
On January 19, 2021, defendant sent an email to a court employee in
which he requested that another judge hear the matter. The judge explained that
the email was an improper ex parte communication. Because plaintiff had not
been privy to the email, the reconsideration judge then read the email into the
record. In it, defendant expressed his belief that the initial judge had been "of a
completely different mindset[,]" leading defendant to believe the
reconsideration judge's ruling was tainted by some bias. 2
Defendant's email also expressed his belief that the reconsideration judge
had failed to require sufficient proof of the child's full-time college attendance
to sustain the denial of defendant's motion to terminate support. Additionally,
defendant complained that the reconsideration judge "did not award [him] an
equal amount of the $52 per week for [twenty-nine] weeks . . . from a previous
judge's order." Finally, defendant argued that the reconsideration judge's award
of "roughly five and a half months of retro[active child support]" to plaintiff,
2
We note that defendant does not raise the issue of bias in his appellate brief.
Accordingly, we deem that contention to be waived and do not address it on the
merits. See N.J. Dep't of Env't Prot. v. Alloway Twp., 438 N.J. Super. 501, 504
n.2, (App. Div. 2015) ("An issue that is not briefed is deemed waived upon
appeal.").
A-1726-20
9
was based on an erroneous 3 conclusion about when the parent of primary
residence shifted from defendant back to plaintiff.
The reconsideration judge elected to treat defendant's email as a motion
for reconsideration. She first addressed defendant's request for a new judge due
to bias. When the judge asked defendant "what's my bias?" defendant said, "bias
might be a strong word" and "might not be the proper . . . word" but explained
that he wanted a "fresh start with a new [j]udge who can look at this set of facts
with a new set of ears" because the reconsideration judge had "already [made] a
predetermination based on things that were already heard." She then explained
that defendant's desire for a "fresh start" with a "new set of eyes" was not
sufficient "grounds to give [defendant] a new [j]udge . . . ."
The reconsideration judge next explained that if defendant was unhappy
with a ruling, he could file an appeal with the Appellate Division, but that
defendant's email should have been filed as a motion for reconsideration.
After denying defendant's motion for a new judge, the judge explained
that she was going to review the email as a motion for reconsideration, then
explained the standard applicable to such a motion. The reconsideration judge
3
Defendant argued that although the child had moved back in with plaintiff in
July 2019, "she was still coming to [his] house often."
A-1726-20
10
noted that defendant's allegations lacked specificity, and that he failed to present
"any new information or [demonstrate] that the court acted in an arbitrary,
capricious, or unreasonably manner."
Defendant again raised before the reconsideration judge his argument that
the court had failed to require proof of the child's ongoing college attendance
sufficient to support the denial of his motion to terminate his support obligation.
In response, the judge noted that at the last hearing she had questioned
defendant's daughter. When asked what more proof he could possibly want,
defendant reiterated his argument that enrollment does not prove ongoing
attendance. The judge found that defendant had not met the burden required to
grant his motion for reconsideration. In the face of his continued insistence, the
reconsideration judge noted that the logical implication of defendant's argument
was that his daughter had lied under oath. The reconsideration judge reiterated
that she found the child's testimony credible. However, plaintiff explained that
since the December 14, 2020, hearing, the child had since decided to "take a
break from school." On that basis, plaintiff requested that defendant's child
support obligation be terminated. The reconsideration judge thereupon granted
plaintiff's request to terminate defendant's child support obligation, effective
December 24, 2020.
A-1726-20
11
This appeal follows. Defendant raises the following contentions for our
consideration:
POINT I
THE TRIAL COURT DID NOT APPROPRIATELY
CREDIT DEFENDANT'S ACCOUNT IN SUPPORT
OF A PREVIOUS COURT ORDER.
POINT II
THE TRIAL COURT ERRED IN GRANTING
JUDGMENT TO PLAINTIFF BECAUSE THE CHILD
WAS RECEIVING A SUBSTANTIAL AMOUNT OF
WEEKLY BENEFITS AS WELL AS FINANCIAL
AID.
POINT III
THE TRIAL COURT ERRED IN GRANTING
JUDGMENT TO PLAINTIFF BECAUSE TRIAL
JUDGE OVERRULED PRIOR JUDGE'S ORDER
AND AWARDED PLAINTIFF RETROACTIVE
CHILD SUPPORT, BUT NOT DEFENDANT; TRIAL
COURT BACKDATED PLAINTIFF'S RETRO TO
[FOUR] MONTHS BEFORE MOTION WAS FILED;
PLAINTIFF DIDN'T FILE SECOND MOTION ON
TIME.
POINT IV
THE TRIAL COURT ERRED IN GRANTING
JUDGMENT TO PLAINTIFF BECAUSE PLAINTIFF
DID NOT SUPPLY TRIAL COURT WITH
SUFFICIENT EVIDENCE OF CLASSES ATTENDED
SINCE THE PRIOR ORDER[.]
A-1726-20
12
POINT V
AS DEFENDANT CONTINUED TO BE ADAMANT
ABOUT ADEQUATE PROOF BEING PROVIDED,
THE TRIAL COURT FINALLY ASKED PLAINTIFF
TO RESPOND—SUDDENLY PLAINTIFF
REQUESTED TO CEASE CHILD SUPPORT[.]
II.
We begin our review by acknowledging the foundational legal principles
that govern this appeal. The scope of our review of a Family Part order is
limited. See Thieme v. Aucoin-Thieme, 227 N.J. 269, 282–83 (2016); Cesare
v. Cesare, 154 N.J. 394, 411 (1998). We accord deference to Family Part judges
due to their "special jurisdiction and expertise in family [law] matters." Cesare,
154 N.J. at 413. We are bound by the judge's findings so long as they are
"supported by adequate, substantial, credible evidence." Id. at 411–12 (citing
Rova Farms Resort, Inc. v. Invs. Ins. Co., 154 N.J. 474, 484 (1974). We will
not disturb the factual findings and legal conclusions unless convinced they are
"so manifestly unsupported by or inconsistent" with the evidence presented. Id.
at 412 (quoting Rova Farms, 474 N.J. at 484). However, challenges to legal
conclusions, as well as a trial judge's interpretation of the law are subject to our
de novo review. Est. of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369,
382 (2010).
A-1726-20
13
Child support awards and modifications are left to the sound discretion of
the trial judge; we are therefore limited to determining whether there was an
abuse of discretion. Innes v. Innes, 117 N.J. 496, 504 (1990); Raynor v. Raynor,
319 N.J. Super. 591, 605 (App. Div. 1999). "The trial [judge] has substantial
discretion in making a child support award." Tannen v. Tannen, 416 N.J. Super.
248, 278 (App. Div. 2010) (quoting Foust v. Glaser, 340 N.J. Super. 312, 315
(App. Div. 2001)). A child support determination will not be set aside unless it
is shown to be manifestly unreasonable, unsupported by substantial evidence, or
"the result of whim or caprice." Ibid. (quoting Foust, 340 N.J. Super. at 315).
Under New Jersey law, "[i]n appropriate circumstances, parental
responsibility includes the duty to assure children of a college and even of a
postgraduate education," Newburgh v. Arrigo, 88 N.J. 529, 544 (1982), even
though the child would otherwise be emancipated under N.J.S.A. 2A:17-56.67.
A Family Part judge determining whether a parent should contribute to a child's
higher education is required to consider the twelve factors set forth in
Newburgh, which "the Legislature essentially approved . . . when amending the
support statute, N.J.S.A. 2A:34-23(a)." Gac v. Gac, 186 N.J. 535, 543 (2006).
We add that the determination of whether a parent is required to contribute to a
child's college education applying the Newburgh factors is distinct from the
A-1726-20
14
calculation of child support owed to the parent of primary residence pursuant to
the child support guidelines.
A.
We first address defendant's contention that the reconsideration judge
erred in finding that the child was a full-time student during the period after she
had returned to live with plaintiff. Defendant argues that the court should have
demanded more definitive proof of not just the child's enrollment but her
continued school attendance. We disagree. The reconsideration judge accepted
the child's testimony as credible and we see no basis upon which we might
substitute our judgment for the Family Part judge's. We thus conclude that the
reconsideration judge's factual conclusion as to the child's enrollment status was
supported by sufficient credible evidence.
B.
We next address defendant's contention that the reconsideration judge erred by
denying his motion to terminate child support due to the child's financial
independence. At the December 14, 2020 termination hearing, defendant
catalogued the child's recent income, including public unemployment and
pandemic assistance. He estimated that, combined with the child's earnings
from a period of full-time employment, "the child made at least over $17,000"
A-1726-20
15
in the preceding nine months. In light of the child's full college scholarship,
which defendant said covered not only tuition, room and board, but also books,
transportation and various other sundry needs, defendant argued that his
continued financial obligation was unnecessary and so should be terminated.
However, when defendant asked, at the modification hearing, whether the
reconsideration judge would consider the child's income and her lack of "bills
or responsibilities of any kind," the judge explained that she would not. The
reconsideration judge rejected defendant's argument and refused to "consider
[the child's] work [income] as against [defendant's] obligation . . . ." The judge's
"sense" was that the child was "working so she [could] support other aspects of
her life" such as transportation.
As we have noted, the determination of child support obligations is
separate and distinct from the determination whether a parent is obligated to
contribute to a child's college education applying the Newburgh factors.
Although "the financial resources of the child" and "the ability of the child to
earn income" are among the Newburgh factors, 88 N.J. at 545, a court is not
required to consider the child's income in calculating the amount of child support
owed to the parent of primary residence. Cf. Martinetti v. Hickman, 261 N.J.
Super. 508, 513 (App. Div. 1993) ("[t]he tests of Newburgh v. Arrigo are to be
A-1726-20
16
applied only where a contribution toward the direct costs of higher education is
sought."). We are thus satisfied that the reconsideration judge did not abuse her
discretion in determining defendant's child support obligations.
C.
We turn next to defendant's contention that the reconsideration judge erred
in calculating the credit due toward his arrears by effectively awarding plaintiff
retroactive child support to a date before the date on which she filed her request
for the modification. The record clearly shows that the reconsideration judge
explicitly ordered that plaintiff be awarded child support retroactive to the date
on which she filed her motion to modify the child support order. The judge
stated:
Ms. Gipple, your application was filed in
November. I needed an exact date but I'm not going to
get it until I get the physical file. Nobody can get it
electronically.
That's going to take a little while to fashion[,] but
you are entitled to your child support retroactive to that
November date 2019.
The written order reflects a November date, as indicated by the
reconsideration judge's oral findings. Defendant was ordered to "pay support
. . . in the amount of: $101 (Child Support) + $9 (Arrears Payment) payable =
$110 (Total) payable WEEKLY effective [November 26, 2019.]"
A-1726-20
17
However, the record before us is unclear as to whether the actual
calculation of the arrears balance was based not on the November 26, 2019 date
but rather the earlier date on which the child resumed living with her mother,
that is, the date on which plaintiff was restored as the parent of primary
residence.4 We therefore deem it necessary and prudent to remand the matter to
the Family court for the limited purpose to clarify its ruling and to confirm t hat
the calculation of arrears is based upon the modification of child support
effective as of November 26, 2019. We do not retain jurisdiction.
To the extent that we have not explicitly addressed them, any remaining
contentions raised by defendant lack sufficient merit to warrant discussion in
this opinion. R. 2:11-3(e)(1)(E).
Affirmed in part and remanded in part.
4
As a general proposition, N.J.S.A. 2A:17-56.23(a) precludes the retroactive
modification of child support, subject to exceptions. We note that "[u] nder
N.J.S.A. 2A:17-56.23(a), a court may retroactively establish or increase one's
child support obligation back to at least the filing date of the application, or
forty-five days earlier upon service of advance written notice." Cameron v.
Cameron, 440 N.J. Super. 158, 166 (Ch. Div. 2014) (emphasis added)); see also
J.S. v. L.S., 389 N.J. Super. 200, 206 (App. Div. 2006) ("This court has
concluded that '[n]othing in the legislative history suggests that the law was
enacted to protect 'parents' from retroactive modifications increasing support
obligations where equitable.'" (quoting Keegan v. Keegan, 326 N.J. Super. 289,
294 (App. Div. 1999))). So far as the record reflects, plaintiff made no
application for retroactive modification of child support earlier than November
26, 2019.
A-1726-20
18