MARK COCKROFT v. JACQUELINE COCKROFT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2596-08T22596-08T2

MARK COCKROFT,

Plaintiff-Appellant/

Cross-Respondent,

v.

JACQUELINE COCKROFT,

Defendant-Respondent/

Cross-Appellant.

______________________________

 

Submitted January 26, 2010 - Decided

Before Judges Skillman and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1395-07.

Pomper & Associates, attorneys for appellant/cross-respondent (Janna M. Chernetz, on the brief).

Aronsohn Weiner & Salerno, P.C., attorneys for respondent/cross-appellant (Kevin L. Bremer, on the brief).

PER CURIAM

Plaintiff Mark Cockroft appeals from those parts of the January 7, 2009 Family Part order that denied his post-judgment of divorce motion. Defendant Jacqueline Cockroft cross-appeals from that part of the same order denying her application for counsel fees. On the appeal, we affirm in part and reverse in part. On the cross-appeal, we reverse.

Following twenty-three years of marriage, the parties divorced on November 15, 2007. On that day, the parties placed the terms of their property settlement agreement (PSA) on the record. On December 17, 2007, the parties reduced the PSA to writing. Three children were born of the marriage: Michael, born in 1989; Mary, born in 1991; and Thomas, born in 1997. The parties agreed to share legal custody of their children, designating defendant as the parent of primary residency, and allowing plaintiff liberal parenting time.

Pursuant to Paragraph 4.1 of the PSA, plaintiff agreed to pay child support for the three children in the amount of $372 per week. The agreed-upon amount was in accordance with the Guidelines. Paragraph 4.2 provides "[t]he above child support shall be in addition to the Husband's obligation to contribute to the payment of those additional child-related expenses, not specifically contemplated by the [Guidelines], such as summer camp in which the Husband shall be obligated to pay 62% and the Wife 38%."

Paragraph 5.1(a) of the PSA defines emancipation in relevant part as: "Reaching the age of 18 years and not going on to college or similar . . . school, or graduation from an institution of higher learning, including but not limited to a 4 year college, a 2 year college, vocational or technical school, [or] attaining 23 years of age whichever first occurs."

Lastly, Paragraphs 12.1 and 12.2 address the parties' responsibilities for their children's college expenses. Paragraph 12.1 provides: "[t]he Parties agree to pay for any and all of the college room, board, tuition, travel expenses, college preparatory classes, travel to and from school during the selection process, books, supplies, computer hardware and software, laboratory fees and book expenses for the children born of the marriage." Paragraph 12.2 provides:

The Parties agree to pay for . . . costs of the college room, board, tuition and related expenses for the children of the marriage in proportion to their respective earned and unearned income, earning ability, assets and financial status with the Husband paying 62% and the Wife 38% after the deduction of any financial aid, grant and/or scholarship, including work related scholarships which may be obtainable by the children. The children shall be obligated to make every effort to obtain financial aid, scholarships and grants in the financing of his/her college education.

On November 6, 2008, plaintiff filed a motion seeking an order: 1) declaring Michael emancipated, effective September 1, 2008; 2) terminating his obligation to pay his share of Mary's college expenses; and 3) recalculating his child support obligation for Mary and Thomas. Plaintiff supported the motion with his certification stating in part that: 1) Michael, then nineteen years old, completed his first year of college during the 2007-2008 school year; 2) in the fall of 2008, Michael registered for only one online course at Passaic Community College; and 3) during the past summer Michael obtained fulltime employment as a manager of a local pizzeria, earning what plaintiff believed was between $500 to $600 per week. Concerning Mary, plaintiff certified that she was a senior in high school with intentions to enroll in college in September 2009; and because Mary has refused to maintain a relationship with him since the parties' divorce, he should be free of his obligation to contribute toward the cost of her college education.

Defendant not only opposed plaintiff's motion, but also filed a cross-motion pursuant to Paragraph 4.2 of the PSA seeking to compel plaintiff to pay $6,218.60 or 62% of the ice skating expenses defendant had expended for Mary since the divorce. In so doing, defendant filed a certification, stating in part, that as to plaintiff's request for an order declaring Michael emancipated, she had not been aware that Michael had reduced his college credits by registering for a single course; however, upon receiving plaintiff's motion, she stressed to Michael the importance of a college education, whereby Michael registered to take fifteen credits in the January 2009 semester.

As to plaintiff's request to be relieved of his obligation to pay his share of Mary's college expenses, defendant acknowledged that her daughter was having difficulty in accepting the divorce, but that defendant was encouraging Mary to communicate with plaintiff. Nevertheless, defendant argued that Mary's lack of contact with plaintiff was not a reason for plaintiff to be relieved of his obligation to pay his share of Mary's college expenses.

Lastly, in support of her cross-motion seeking to compel plaintiff to pay 62% of Mary's ice skating expenses, defendant certified that Mary has pursued ice skating since she was nine years old. At first, Mary skated competitively, taking ice skating lessons every morning before school. Although plaintiff initially supported Mary's ice skating, he stopped contributing toward her ice skating expenses during the divorce proceedings, forcing Mary to stop competing in April 2007. However, Mary continues to train with three coaches eight hours a week. Defendant certified that since December 2007, she had expended $10,030 for Mary's training, ice time, and other related expenses.

On January 7, 2009, the trial court entered an order supported by an oral decision denying plaintiff's motion; granting defendant's cross-motion seeking to compel plaintiff to reimburse her for 62% or $6,218.60 of Mary's ice skating expenses; and denying defendant's application for counsel fees. It is from this order that the parties appeal.

Plaintiff first argues that the trial court erroneously denied his application to declare Michael emancipated. Alternatively, plaintiff contends that the court erred in failing to conduct a plenary hearing on the issue. We disagree with plaintiff's primary argument; however, we agree with his alternate contention.

Generally, "emancipation is the act by which a parent relinquishes the right to custody and is relieved of the duty to support a child." Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). In New Jersey, "there is no fixed age when emancipation occurs." Gac v. Gac, 186 N.J. 535, 542 (2006). While there is a rebuttable presumption against emancipation prior to reaching the age of majority, N.J.S.A. 9:17B-3, attainment of age eighteen establishes prima facie, but not conclusive, proof of emancipation. Ibid. For example, emancipation may occur upon a child's marriage, induction into military service, or by a court order based on the child's best interests. Newburgh, supra, 88 N.J. at 543. The issue is fact sensitive. Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997).

"[T]he essential inquiry is whether the child has moved 'beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own.'" Ibid. (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)). This determination requires "a critical evaluation of the prevailing circumstances including the child's need[s], interests, and independent resources, the family's reasonable expectations, and the parties' financial ability, among other things." Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006).

Here, the trial court decided the emancipation issue solely on the parties' certifications. With conflicting certifications having been presented, we conclude that the trial court mistakenly decided the emancipation issue without the benefit of a plenary hearing to determine whether Michael has moved beyond the sphere of his parents' influence. See Conforti v. Guliadis, 128 N.J. 318, 322 (1992) (holding that plenary hearings are required when there are "contested issues of material fact on the basis of conflicting affidavits"); see also State v. Pyatt, 316 N.J. Super. 46, 50 (App. Div. 1998) (stating that "[i]n a variety of contexts, courts have opined on the impermissibility of deciding contested issues of fact on the basis of conflicting affidavits or certifications alone"), certif. denied, 158 N.J. 72 (1999).

We reverse the trial court's decision denying plaintiff's application for an order declaring Michael emancipated and remand for further proceedings. On remand, the trial court shall conduct a plenary hearing to determine whether Michael has obtained independent status or whether he remains under the sphere of his parents' influence. Certainly, with Michael having graduated from high school nearly three years ago and having reached the age of twenty, his testimony could be beneficial in deciding the issue.

Plaintiff argues next that the trial court erred in denying his motion seeking to be relieved of his obligation to pay 62% of Mary's college expenses. We disagree.

The court determined that, although there may be a "disconnect" between plaintiff and Mary because of the divorce, it would not be in Mary's best interest to terminate plaintiff's obligation to pay for a share of her college expenses as required by the PSA. In so deciding, the court concluded that the motion was premature: "We don't even know how much it's going to cost, . . . we have no indication what it's going to be, we don't know where she's going, we don't know what efforts are going to be made between now and the time she does go to reunify these two." We agree and affirm for the reasons expressed by the trial court. R. 2:11-3(e)(1)(A).

Plaintiff argues next that the trial court erred in denying his motion to recalculate his child support obligations for Mary and Thomas. That part of the motion was premised on plaintiff's anticipation that the court would declare Michael emancipated effective September 1, 2008, and that Mary would be living away at college for most of the year commencing in the fall 2009. Because on remand the trial court is to re-consider Michael's emancipation, we reverse the denial of that part of plaintiff's motion seeking recalculation of his child support obligation, and direct that the court also re-consider that question on remand after deciding the emancipation issue.

Lastly, plaintiff argues the trial court erred in determining that he was obligated to reimburse defendant for 62% of the ice skating expenses defendant paid on behalf of their daughter since the divorce. Plaintiff contends that at the time the PSA was negotiated, the parties never intended for Paragraph 4.2 to address Mary's ice skating expenses. Plaintiff further asserts that at the time the parties negotiated the PSA, there was a pendente lite order in place requiring defendant to pay those expenses and, as such, plaintiff "had no reason to believe this obligation would change as a result of the signing of the [PSA]." Alternatively, plaintiff contends that if he is obligated to reimburse defendant for the ice skating expenses, he should only be required to reimburse her for such expenses that are "reasonable."

Initially, "provisions of a pendente lite order do not survive the entry of a judgment of divorce unless expressly preserved in it or reduced to judgment prior to entry of final judgment." Mallamo v. Mallamo, 280 N.J. Super. 8, 12 (App. Div. 1995). Here, plaintiff has not provided the court with a copy of the pendente lite order, nor has he cited to evidence in the record to support his argument that the pendente lite provision survived the judgment of divorce. Accordingly, we reject plaintiff's argument that the parties did not intend for Paragraph 4.2 of the PSA to have modified their pendente lite obligations to contribute toward Mary's ice skating expenses.

As a general principle, "courts should enforce contracts as the parties intended." Pacifico v. Pacifico, 190 N.J. 258, 266 (2007). "An agreement must be construed in the context of the circumstances under which it was entered into[,] and it must be accorded a rational meaning in keeping with the express general purpose." Tessmar v. Grosner, 23 N.J. 193, 201 (1957). "The polestar of contract construction is to discover the intention of the parties as revealed by the language used by them." Karl's Sales & Serv., Inc., v. Gimbel Bros., Inc., 249 N.J. Super. 487, 492 (App. Div.), certif. denied, 127 N.J. 548 (1991).

We have considered plaintiff's argument in light of the record and applicable law. We conclude that the trial court correctly determined that Mary's ice skating expenses constitute an "additional child-related expense[] not specifically contemplated by the [Guidelines]" within the intent of Paragraph 4.2 of the PSA. Accordingly, we affirm the trial court's determination that plaintiff is to reimburse defendant 62% of those expenses. In so doing, we note that the trial court reserved to plaintiff the right to challenge the expenses, upon receipt of documents, supporting defendant's demand: "The defendant shall provide all substantiating documents for the underlying expenses . . . ." We assume that defendant has complied with that provision of the order. Thus, if plaintiff believes that any of the ice skating expenses for which reimbursement is sought are unreasonable, plaintiff may challenge those particular expenses at the remand hearing.

Defendant argues on her cross-appeal that the trial court erred in denying her application for counsel fees. We agree. An award of counsel fees in matrimonial matters rests in the discretion of the trial court. R. 4:42-9(a)(1); R. 5:3-5(c); Williams v. Williams, 59 N.J. 229, 233 (1971). Such exercise of discretion will not be disturbed in the absence of showing of abuse. Chestone v. Chestone, 322 N.J. Super. 250, 258 (App. Div. 1999). "Discretion, however, means legal discretion, 'in the exercise of which the judge must take account of the law applicable to the particular circumstances of the case and be governed accordingly.'" Alves v. Rosenberg, 400 N.J. Super. 553, 562-63 (App. Div. 2008) (quoting State v. Steele, 92 N.J. Super. 498, 507 (App. Div. 1966)). "Obviously, '[i]f the trial judge misconceives the applicable law or misapplies it . . . the exercise of legal discretion lacks a foundation and becomes an arbitrary act.'" Id. at 563 (quoting Steele, supra, 92 N.J. Super. at 507).

Here, although the trial court determined that plaintiff had brought his motion in good faith, it failed to consider the remaining factors set forth in Rule 5:3-5(c). Accordingly, we reverse that part of the order denying defendant's application for counsel fees and remand for the trial court to re-consider in accordance with Rule 5:3-5(c) and applicable case law.

In sum, on plaintiff's appeal, we reverse those parts of the January 7, 2009 order denying plaintiff's motion to declare Michael emancipated and to recalculate plaintiff's child support obligation for the parties' two youngest children, Mary and Thomas; we affirm those parts of the order that denied plaintiff's motion seeking to terminate his obligation to pay his share of Mary's college expenses, and directing plaintiff to reimburse defendant $6,218.60, or 62% of Mary's ice skating expenses, subject to plaintiff's right to challenge the reasonableness of those expenses on remand. On defendant's cross-appeal, we reverse and remand. The matter is remanded to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

The children's names are fictitious.

Child Support Guidelines, Pressler, Current N.J. Court Rules, appendix IX-A to R. 5:6A (2010).

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A-2596-08T2

February 25, 2010