DEBORAH KENO v. FRANKLYN PILGRIM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1896-04T31896-04T3

A-3955 04T3

DEBORAH KENO,

Plaintiff-Appellant,

v.

FRANKLYN PILGRIM,

Defendant-Respondent.

__________________________________________________________

 

Argued February 15, 2006 - Decided August 14, 2006

Before Judges Hoens and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FD-07-7300-90.

Deborah Keno, appellant, argued the cause pro se.

Amy R. Reisen argued the cause for respondent Franklyn Pilgrim (Freundlich & Reisen, attorneys; Ms. Reisen, on the brief).

PER CURIAM

Plaintiff, Deborah Keno, appeals pro se, from two orders entered in the Family Part, Essex County, in October 2004. The first order, entered on October 1, 2004, denied plaintiff's request for an upward modification of child support from defendant, Franklyn Pilgrim, and refused to vacate or modify a July 26, 2004 order that emancipated the parties' daughter, effective July 1, 2004. The second order from which plaintiff appeals was entered on October 22, 2004. It imposed the requirement that plaintiff provide medical proof as to each and every reimbursement of medical expenses and set a briefing schedule and return date for a hearing.

After the court reviewed plaintiff's submissions of claimed reimbursements, it entered a twelve-page order in opinion format, dated March 14, 2005, which recited the parties' factual allegations, summarized the procedural history of issues the parties had brought before the court from 1991 to the date of the order, and rejected defendant's contention that laches precluded plaintiff from recovering unreimbursed medical expenses up to July 2, 1999. That order provided that as of July 2, 1999, defendant was obligated to pay unreimbursed medical expenses in the total amount of $4,323.88. Under the March 14, 2005 order, sums claimed by plaintiff for unreimbursed medical expenditures after July 2, 2004, were denied. As to such post-July 2, 2004 sums, the court determined that plaintiff had not complied with an order, entered that date by a different judge, requiring plaintiff to inform defendant in writing thirty days prior to incurring any unreimbursed medical bills in excess of $250 per calendar year.

Defendant appealed separately from the March 14, 2005 order awarding plaintiff $4,323.88. The two appeals were consolidated, and oral arguments on both appeals were heard together. Although plaintiff states in the Preliminary Statement of her brief on appeal that the March 14, 2005 order is one of the orders from which she has appealed, her Notice of Appeal in Docket No. A-1896-04T3 does not list that order. That is understandable because her Notice of Appeal was filed on December 21, 2004, before the March 14, 2005 order was entered. Moreover, plaintiff did not file a cross-appeal when defendant filed his Notice of Appeal from the March 14, 2005 order in Docket No. A-3955-04T3. Nevertheless, because the issues are inextricably intertwined with those that are before the court on defendant's appeal, we shall in the interest of justice, consider plaintiff's arguments that she also is aggrieved by the March 14, 2005 order's denial of all claims for medical reimbursement after July 2, 1999. See State v. Berry, 140 N.J. 280, 301 (1995) (considering an issue not raised at trial where that issue was "within the scope of the questions addressed on re-argument" before the Court).

As to the October 2004 orders from which plaintiff has appealed and the portion of the March 14, 2005 order, from which she is deemed to have appealed, we reverse and remand. As to the sum awarded plaintiff in the March 14, 2005 order for medical reimbursement up to July 2, 1999, from which defendant has appealed, we affirm.

Plaintiff and defendant met in 1983 and began a relationship that produced one child, Nailah, born August 28, 1984. The parties never married. Defendant has three children from other marriages or relationships. On October 19, 1989, plaintiff filed a complaint in Superior Court seeking the establishment of a support order against defendant and on July 20, 1990, an order was entered to compel an HLA test. That confirmed that defendant is Nailah's father. The court entered an initial order of support on April 3, 1991, and the parties have been in and out of court concerning various issues since that time. Plaintiff claims she has tried over the years since 1991, without success, to obtain a hearing on her requests for an upward modification of child support.

The difficulty in this case, as is undoubtedly true in many disputes in family court, is that each dispute is influenced by and may be viewed as a facet of an earlier or different dispute. More specifically, in this case, plaintiff appeals from the October 1, 2004 order that denied as untimely her request for an increase in child support, whereas she contends her timely requests were never decided on the merits. The subject October 1, 2004 order also refused plaintiff's request for reconsideration of a July 26, 2004 order that emancipated the parties' daughter, effective July 1, 2004. We will begin with a review of the order of emancipation.

Nailah is a student at the Livingston Campus of Rutgers University. In the Spring of 2004, in partial response to a motion by plaintiff for upward modification of child support, issues relating to college tuition and expenses were raised and decided. In her first year at Rutgers, Nailah performed poorly, and as a result, the court entered an order on March 26, 2004 that included the following terms:

Nailah Keno must obtain a B or better average in each course, with a minimum of 12 credits hours, for the Spring 2004 semester. If she does, she will not be emancipated.

If Nailah does not obtain a B average, she will be emancipated and child support will be terminated. If her grades drop below the B requirement at any time after Spring 2004 semester, the child is emancipated and child support is terminated.

As the court explained, "Whatever she finishes this semester with, if it's a B average, [defendant] pays. If it's not a B average, he's off the hook, and maybe she has to take a year off and get a job and save money so she can go to school the next year. Maybe she has to go to school at night and work during the day or vice-versa." Although Nailah's academic performance improved, she did not "hit the benchmark" set by the court in the March 26, 2004 order. She did not achieve a B average in the Spring semester. The court reviewed her grades, observing that "[s]he's got a cumulative average of 2.4 and 34 credits toward a degree. She needs . . . 120 credits for a Bachelor's degree[.]"

The court acknowledged that Nailah had earned a 3.0 average for the Spring semester, but she did so with only three courses, having withdrawn from one course and having failed another. Under the circumstances, the court concluded, there was no question that Nailah had failed to comply with the March 26, 2004 order. Consequently, the order emancipating her, effective as of July 1, 2004, was entered on July 26, 2004. The court also determined, based on the monthly child support of $145 that defendant was not required to contribute to any deficits theretofore incurred toward tuition for Nailah's first two years at Rutgers. The July 26, 2004 order directed that "Probation is to terminate child support eff. 7-1-04. Arrears to con[tinue] if any. If no arrears [are] owed, case to be closed."

"Findings of fact by a trial judge 'are considered binding on appeal when supported by adequate, substantial and credible evidence.'" Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 164 (2004) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). But, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Twp. Comm., 140 N.J. 366, 378 (1995). "[W]here the focus of the dispute is not on credibility but, rather, alleged error in the [fact finder's] evaluation of the underlying fact and the implications to be drawn therefrom, our function broadens somewhat." Alderiso v. Med. Ctr., 167 N.J. 191, 198-99 (2001) (alterations in original) (quoting Manzo v. Amalgamated Indus. Union Local 76B, 241 N.J. Super. 604, 609 (App. Div.), certif. denied, 122 N.J. 372 (1990)). "Moreover, an appellate court is always free 'to resolve purely legal questions[.]'" Alderiso, supra, 167 N.J. at 199 (alterations in original) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).

Plaintiff asserts, and we agree, the trial court improperly emancipated Nailah based on her college grades and failed to apply prevailing case law. Emancipation of a child occurs "when the fundamental dependent relationship between parent and child is terminated. When a child moves beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status on his or her own, generally he or she will be deemed emancipated." Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995) (emphasis in original). New Jersey law does not fix an age at which emancipation occurs. Youssefi v. Youssefi, 328 N.J. Super. 12, 23 (App. Div. 2000); Wanner v. Litvak, 179 N.J. Super. 607, 612 (App. Div. 1981). N.J.S.A. 9:17B-3 establishes "[a] rebuttable presumption against emancipation" prior to a child reaching "the age of majority." Weitzman v. Weitzman, 228 N.J. Super. 346, 356 (App. Div. 1988), certif. denied, 114 N.J. 505 (1989).

A determination of emancipation and, thus, termination of a right to parental support is a fact-sensitive matter, requiring a critical evaluation of the circumstances presented by the parties to determine if the child has moved beyond the sphere of parental influence and responsibility and achieved an independent status. Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div 1997); Bishop, supra, 287 N.J. Super. at 598. See also Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). When emancipation occurs, a parent is relieved of the duty to support the child. Newburgh, supra, 88 N.J. at 543. However in most circumstances, until emancipation, parents remain "charged with their [children's] care, nurture, education and welfare . . . ." Weitzman, supra, 228 N.J. Super. at 355 (quoting N.J.S.A. 9:2-4) (alteration in original).

Here, the trial court utilized a solitary criterion to ascertain whether Nailah had moved beyond the parental sphere and obtained an independent status. The court's decision that Nailah was emancipated was based solely on her failure to maintain a "B" average at Rutgers. Early struggles at school do not take a child outside of the parental sphere and make him or her independent. On the contrary, when the child struggles in college he or she may need and rely on his or her parents even more than during times of success. The standard applied by the court was arbitrary, capricious and unreasonable. Such a standard has not been created in New Jersey. Therefore, as a matter of law, Nailah was not emancipated from her parents by virtue of her grades.

Next, having found that Nailah was improperly emancipated, we address the issue of contribution to Nailah's college education. Rule 1:7-4(a) requires that a court "find the facts and state its conclusions of law . . . on every motion decided by written order that is appealable as of right . . . ." The court's failure to comply with this obligation "constitutes a disservice to the litigants, the attorneys and the appellate court." In such instances this court can either remand for findings of fact and conclusions of law or this court itself can make "findings of fact pursuant to the constitutional grant of necessary original jurisdiction and R. 2:10-5." Pressler, Current N.J. Court Rules, comment 1 on R. 1:7-4(a) (2006); Farmingdale v. Farmingdale, 55 N.J. 103, 106 (1969). We decline to make the findings, but point out what we have noted in the record that would bear on the issues to be resolved on remand.

Of course, "the father of a child born out of wedlock" can be required "to provide post-minority support for the child's college education in the same manner and to the same extent as such support can be ordered in connection with a divorce." R.A.C. v. P.J.S., 380 N.J. Super. 94, 111 (App. Div. 2005). "[I]n appropriate circumstances, the privilege of parenthood carries with it the duty to assure a necessary education for children." Newburgh, supra, 88 N.J. at 543.

Under such circumstances, courts have interpreted "necessary education" as a flexible concept that can vary from case to case. Ibid. "In the past, a college education was reserved for the elite, but the vital impulse of egalitarianism has inspired the creation of a wide variety of educational institutions that provide post-secondary education for practically everyone." Id. at 544. The Court, in Khalaf v. Khalaf, 58 N.J. 63 (1971), observed that "[w]hile a 'common public school and high school education' may have been sufficient in an earlier time, . . . the trend has been toward greater education." Weitzman, supra, 228 N.J. Super. at 356 (alterations in original) (quoting Khalaf, supra, 58 N.J. at 71).

"In general, financially capable parents should contribute to the higher education of children . . . ." Newburgh, supra, 88 N.J. at 544. Moreover, "[i]n appropriate circumstances, parental responsibility includes the duty to assure children of a college and even of a postgraduate education such as law school." Ibid. Newburgh has been generally accepted for the proposition that "financially capable parents should contribute to the higher education of children . . . ." Moehring v. Maute, 268 N.J. Super. 477, 480 (App. Div. 1993) (quoting Newburgh, supra, 88 N.J. at 544). In evaluating the claim for contribution toward the cost of higher education, courts should consider all relevant factors, including:

(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 of the education requested to any prior training and to the overall long-range goals of the child.

[Newburgh, supra, 88 N.J. at 545.]

Among the foregoing Newburgh factors, "the parents' ability to pay is clearly the most significant." Moehring, supra, 268 N.J. Super. at 481; Weitzman, supra, 228 N.J. Super. at 375.

The extraordinary and ever escalating costs related to financing a college education results in economic sacrifice by parents regardless of their status, i.e. married, divorced, etc. "[C]ollege is an experience which will resonate throughout [the child's life]." Finger v. Zenn, 335 N.J. Super. 438, 445 (App. Div. 2000). For parents, "the college experience of their child provides a unique opportunity for them to witness and participate in this stage of intellectual, moral and social maturity of their daughters and sons." Ibid.

"It has been reported that Crito said to Socrates 'No man should bring children into this world who is unwilling to persevere to the end in their nurture and education.'" White v. White, 313 N.J. Super. 637, 645 (Ch. Div. 1998) (quoting Daly v. Daly, 21 N.J. 599, 604 (1956)). "The modern view, as reflected in N.J.S.A. 9:2-4, is that both parents equally share the rights and responsibilities of child rearing." White, supra, 313 N.J. Super. at 645. N.J.S.A. 2A:34-23 authorizes the courts to intervene to resolve sensitive family matters as long as the court's orders are "'fit, reasonable and just,' given the circumstances of the parties and the nature of the case." Ibid.

Here, the judge failed to consider the full set of applicable standards and guidelines. See Gac v. Gac, 351 N.J. Super. 54, 64 (App. Div. 2002), rev'd and remanded on other grounds, 186 N.J. 535 (2006). Instead, he created an artificial and arbitrary standard that attached controlling significance to the child's grades. New Jersey law does not mandate that a student attain a particular GPA in order to receive contribution from his or her parents. See Keegan v. Keegan, 326 N.J. Super. 289, 295 (App. Div. 1999) (affirming trial court's decision ordering father to continue contributing to his daughter's college education without giving any relevance to the daughter's 2.36 cumulative GPA). As such, the ultimate conclusion to deny plaintiff contribution from defendant toward Nailah's college expenses must be based on due consideration of the guidelines set forth in Newburgh.

Defendant points out that he is paying for two of his other children to attend college. That tends to underscore the reasonableness of plaintiff's expectation that defendant would have contributed to Nailah's tuition and expenses. Moreover, defendant's attorney offered at the July 2, 1999 hearing that defendant would be thrilled for Nailah to receive a college education and even go to medical school and that defendant would be quite proud to continue paying child support if she did. Thus, the first and second of the enumerated Newburgh factors is satisfied. Nailah should not be treated any differently from defendant's other children, for whom he readily contributes toward higher education expenses.

Both plaintiff and defendant attained degrees through higher education. It would be reasonable, therefore, for Nailah to conclude that defendant would contribute to her education, satisfying the second factor. Though she floundered somewhat at the start, Nailah has demonstrated a new resolve and commitment to complete her college education satisfying factor seven.

There was evidence produced that defendant broke off the relationship with Nailah, thereby negating the applicability of factor eleven. But a relationship between Nailah and defendant is not necessary. See Gac, supra, 186 N.J. at 546 ("A relationship between a non-custodial parent and a child is not required for the custodial parent or the child to ask the non-custodial parent for financial assistance to defray college expenses.").

The court stated that Nailah has to "take out any loan that's available . . . apply for scholarships, fellowships . . and . . . work besides that." See Finger, supra, 335 N.J. Super. at 442 (impliedly affirming trial court's decision not to force "the child to incur any loans for which the child would be responsible in the future, at least for the first two years of the child's schooling"). We merely observe at this juncture that a child's ability to take out loans does not decrease a parent's obligation to pay a share of his or her child's college expenses that the parent is financially able to bear.

The court failed to make adequate findings as to defendant's ability to contribute to Nailah's college tuition. In light of the Newburgh factors to be considered, on remand, the trial judge must determine the amount defendant is able to pay. The contribution by each parent should be based on his or her ability to pay. Once defendant's contribution is set, Nailah may, indeed, have to seek any additional money necessary for her education based on all attendant circumstances.

Next, plaintiff argues the court erred by barring any claim to reimbursement of medical expenses after July 2, 1999, because the order requiring thirty days notice prior to incurring any medical expense above the $250 threshold was arbitrary, capricious, unreasonable and unworkable. Defendant cross-appeals, arguing that plaintiff's recovery for medical expenses prior to July 2, 1999, should have been barred.

In his March 14, 2005 written opinion, the judge made the following findings and conclusions of law:

In this case it appears that the payment of unreimbursed medical expenses has been an ongoing issue from 1991 through 2004. Plaintiff has consistently asserted her right to repayment of expenses through the years, although there was a lapse of time between 2000 and 2003. Although Defendant is correct that the hearing on July 2, 1999 dealt specifically with the cost of the child's medical care; Judge Goldman, however, dismissed Plaintiff's other applications without prejudice and therefore left open Plaintiff's reapplication for payment of unreimbursed medical expenses. As aforesaid, there is a period of around 3 years where Plaintiff did not pursue her claims against Defendant and as will be explained, infra, Defendant is only responsible for expenses up to the July 2, 1999 Order. Defendant was certainly aware of the ongoing issue through the numerous occasions he was required to attend court. Therefore, Laches does not apply in this case.

. . . .

The July 1999 Order was specific that Plaintiff was required to inform the Defendant, in writing, thirty days prior to incurring any unreimbursed medical expenses over the initial $250. There is no evidence Plaintiff complied with that Order. Judge Goldman made it clear that if Plaintiff did not comply with the July 2 1999 Order then she would bear the cost of the minor's treatment. Therefore, since Plaintiff did not comply with the July Order she is not entitled to reimbursement of medical expenses from the period after the July Order until the present.

As to the first part of the ruling, relating to medical expenses prior to July 2, 1999, the judge did not abuse his discretion in finding that laches was inapplicable and we affirm substantially for the reasons set forth in the court's written opinion.

Defendant argues that the court lacked jurisdiction to consider the issues surrounding reimbursement of medical expenses because once plaintiff's appeal was filed the trial judge was barred from making any further rulings. Rule 2:9-1 provides, in part, that "The trial court, however, shall have continuing jurisdiction to enforce judgments and orders pursuant to R. 1:10 and as otherwise provided."

Arguably, the decision as to the medical expenses was an enforcement of the prior order requiring plaintiff to pay two-thirds of all unreimbursed medical expenses related to Nailah. Therefore, pursuant to R. 2:9-1(a), the trial court had jurisdiction to determine the medical reimbursement issue. Moreover, it was in the interest of efficiency and simplicity of procedure that the court consider those issues even though an appeal had been filed concerning other issues.

As to the second part of the order, the judge dismissed all of plaintiff's claims for medical expenses after July 2, 1999, because she had not complied with a different judge's order to provide defendant with thirty days notice prior to incurring any medical expenses above $250. As plaintiff points out, unless she was clairvoyant, there was no way for her to know in advance when her daughter would be sick or what would be the cost of any particular treatment. Moreover, plaintiff contends that during extended periods of time, she did not know where defendant was or how to reach him. Indeed, defendant conceded that he was in Brazil for two years.

Apart from not being in contact with defendant or knowing his whereabouts, she contends the order was and is unworkable since she cannot give advance notice of illnesses before they manifest themselves. We agree for that reason that the order requiring thirty days notice is not manageable and constitutes a mistaken exercise of discretion. As such, on remand the court must reconsider what amount, if any, defendant is required to contribute to the medical expenses incurred after July 2, 1999. Advance notice is not always practicable. Where practicable, advance notice should, of course, be given. If it is not practicable, the court should consider requiring that notice of any medical expenses be given when the visit or treatment is scheduled or within a reasonable time which may be specified, such as within five days after the date of the treatment or visit. We leave the particulars to the court on remand.

Finally, plaintiff contends the trial court erred by determining that her application for an upward modification of child support was time barred. She seeks such a modification and asks that it be applied retroactively to her initial request on April 14, 1993. She contends the court erred by continually failing to address her claims for an upward modification of child support. Defendant contends the requested relief is barred by laches.

The doctrine of laches is often described as allowing the courtroom doors to close on a claimant who has delayed "for a length of time which, unexplained and unexcused, is unreasonable under the circumstances and has been prejudicial to the other party." Northwest Covenant Med. Ctr. v. Fishman, 167 N.J. 123, 140 (2001) (quoting West Jersey Title & Guar. Co. v. Indus. Trust Co., 27 N.J. 144, 153 (1958)). In other words, "[l]aches is an equitable doctrine which penalizes knowing inaction by a party with a legal right from enforcing that right after passage of such a period of time that prejudice has resulted to the other [party] . . . ." L.V. v. R.S., 347 N.J. Super. 33, 39 (App. Div. 2002) (quoting Matter of Adoption of a Child of Indian Heritage, 111 N.J. 155, 182 n.8 (1988).

Laches is applied on a case by case basis depending on the various circumstances involved. See Donnelly v. Ritzendollar, 14 N.J. 96, 107-08 (1953). Usually, however, where laches is asserted by a party as an issue in the proceeding a "full factual hearing on both sides is usually required." Dorchester Manor v. Borough of New Milford, 287 N.J. Super. 163, 173 (Law Div. 1994), aff'd, 287 N.J. Super. 163, 172 (App. Div. 1996); See Urban League v. Mayor of Cateret, 115 N.J. 536, 554 (1989).

"Laches may only be enforced when the delaying party had sufficient opportunity to assert the right in the proper forum and the prejudiced party acted in good faith believing that the right had been abandoned." Knorr v. Smeal, 178 N.J. 169, 181 (2003). "The key factors to be considered in deciding whether to apply the doctrine are the length of the delay, the reasons for the delay, and the 'changing conditions of either or both parties during the delay.' The core equitable concern in applying laches is whether a party has been harmed by the delay." Knorr, supra, 178 N.J. at 181 (internal citations omitted) (quoting Lavin v. Hackensack Bd. of Educ., 90 N.J. 145, 152-53 (1982)).

The application of laches has been met with varied results in our courts demonstrating that time constraints "are not fixed but are characteristically flexible." Lavin, supra, 90 N.J. at 151. For example, in County of Morris v. Fauver, 153 N.J. 80 (1998), the court held that a seven-year time lapse did not bar the action because of laches. See also Gladden v. Bd. of Tr. of the Pub. Employees' Ret. Sys., 171 N.J. Super. 363 (1979) (holding that laches did not apply after a twenty-year delay because of the issue's importance and effect on many of defendant's employees); Cf. Lavin, supra, 90 N.J. at 153-55 (holding that laches applied to the present matter and barred the claim since it was not brought for more than nine years). In considering the impact of plaintiff's delay, it is emphasized that laches is "an equitable principle aimed to promote justice[.]" Lavin, supra, 90 N.J. at 152 n.1.

We conclude that plaintiff was entitled to a hearing as to the application of laches, which the trial court failed to provide. The October 1, 2004 order barring modification of child support as being time barred did not reflect the judge's reasons for applying laches to deny the modification of child support as required by R. 1:7-4(a).

Plaintiff claims she continually asserted her desire for an upward modification at every hearing. We note that plaintiff filed applications for upward modification of child support on September 16, 1996, December 13, 1996 and July 25, 1998. Our review of the record does not demonstrate a decision on the issue. The following are examples of the failures to address plaintiff's requests. On March 25, 1997, the parties appeared before a hearing officer. The hearing officer determined that the medical issues were too complex and referred plaintiff's case to a judge to hear. That order referring the matter to the trial court commented that "both parties [are] to provide income documentation at next hearing." On November 4, 1998, again after the case was heard before a hearing officer, plaintiff asserted that she had requested an upward modification of child support. The hearing officer, however, determined that the child support issue was not before her. The judge then presiding over the case stated on April 1, 1999, that he would hear the issue at the next hearing but, based on the record before us, other than to tell plaintiff to re-file for modification and to have her attorney contact defendant's attorney, the court did not address it when the parties returned on May 28, 1999. Also, plaintiff's delay between 1999 and 2003 is explainable, in part, by defendant's relocation.

Courts may "modify alimony and support orders at any time[.]" Lepis v. Lepis, 83 N.J. 139, 145 (1980); N.J.S.A. 2A:34-23. Consequently, "alimony and support orders define only the present obligations of the former spouses." Lepis, supra, 83 N.J. at 146. Thus, alimony and support obligations "are always subject to review and modification on a showing of 'changed circumstances.'" Ibid. (citations omitted). Examples of such "changed circumstances" warranting modification include:

(1) an increase in the cost of living;

(2) increase or decrease in the supporting spouse's income;

(3) illness, disability or infirmity arising after the original judgment;

(4) the dependent spouse's loss of a house or apartment;

(5) the dependent spouse's cohabitation with another;

(6) subsequent employment by the dependent spouse; and

(7) changes in federal income tax law.

 
[Id. at 151 (internal citations omitted).]

If changed circumstances are found requiring an upward modification of child support, such a modification can be ordered retroactively. Keegan, supra, 326 N.J. Super. at 291.

On remand, the court must determine whether defendant underpaid in child support from September 16, 1996, the date of plaintiff's motion for an upward modification, to the present and, if so, by what amount. See N.J.S.A. 2A:17-56.23a. The court can, if it deems necessary, implement a payment schedule for defendant to provide plaintiff with the child support Nailah is owed. Further, any new child support obligation determination should include the period after July 1, 2004, since the order emancipating the child was invalid. It appears plaintiff's pleas for an upward modification of defendant's child support obligation did, indeed, fall through the cracks. It would be a severe injustice for Nailah not to receive the full benefit of the child support to which she was entitled.

Finally, we address the court's imputation of income to plaintiff. It is settled law in New Jersey that "when a parent, without just cause, is voluntarily unemployed or underemployed, income may be imputed to that parent to provide for the child's needs." Caplan v. Caplan, 182 N.J. 250, 268 (2005). In Dorfman v. Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998), we held that essential to a finding of underemployment is belief that the obligor is purposefully earning less than he or she is able. We are not satisfied from the record that plaintiff was voluntarily unemployed or underemployed. Plaintiff's illnesses and surgeries raise a serious question as to whether just cause exists for her employment status. Therefore, on remand if the court determines to impute income to plaintiff, it should make explicit findings regarding plaintiff's purposeful acts of earning below her capability.

As we have done previously, "[i]n an abundance of caution, we direct that this matter be remanded to a different judge for the plenary hearing to avoid the appearance of bias or prejudice based upon the judge's prior involvement with the matter and his expressions of frustration [toward Nailah and her mother]". Entress v. Entress, 376 N.J. Super. 125, 133 (App. Div. 2005).

Affirmed in part, reversed in part and reversed and remanded in part for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

We note that plaintiff, in her attempt to have the court reconsider the decision to emancipate Nailah, submitted a letter from the Assistant Dean of Academic Services, who represented that "[a]ccording to the academic policies of the college, Nailah's GPA (grade point average) is well above the minimum GPA to be considered in good academic standing." That is an additional indication that the judge's standard of a "B" average is arbitrary, capricious and unreasonable.

(continued)

(continued)

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A-1896-04T3

August 14, 2006