CHERRIE DEHERE v. JOHN N. BOOKER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3385-08T1

CHERRIE DEHERE,

Plaintiff-Respondent,

v.

JOHN N. BOOKER,

Defendant-Appellant.

_________________________________________________________

 

Submitted January 27, 2010 - Decided

Before Judges Graves and Sabatino.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Hudson County,

Docket No. FM-09-120-94.

John N. Booker, appellant pro se.

Cherrie Dehere, respondent pro se.

PER CURIAM

The parties were divorced on January 10, 1994. They have two children: a son John, who is twenty-six years old, and a daughter Natasha, who is twenty-three. Defendant John Booker appeals from an order dated February 2, 2009, denying his motion to emancipate both children and to adjust his support arrears. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings consistent with this opinion.

The judgment of divorce incorporated a property settlement agreement (PSA) signed by the parties on June 18, 1990, and a child support order dated March 18, 1991, that required defendant to pay support in the amount of $137 per week for both children. Pursuant to the PSA, emancipation of each child would occur upon reaching the age of eighteen "or the completion of four academic years of college education." The parties further agreed that they would both assist each child with "reasonable expenses of higher education" and that defendant would pay one-half of the children's "post-secondary educational expenses until each completes his or her higher education or reaches 23 years of age, provided that each child is in legitimate and diligent pursuit of such education."

The parties' children have not attended college on a consistent full-time basis. On April 29, 2004, the court determined that John was emancipated. However, after he returned to college, the court found John was no longer emancipated in an order dated February 3, 2006. The same order denied defendant's motion to emancipate Natasha because she was then "a full time college student." On April 13, 2006, the court required defendant to reimburse plaintiff for his share of the children's "school related expenses" in the amount of $7086.48 and defendant's child support payment was increased to $186 per week. Thereafter, on December 1, 2006, the court denied defendant's motion to emancipate his daughter based on a finding that Natasha was "not in school" because no child support payments had been made since October 17, 2006. Similarly, in an order dated January 16, 2007, the court noted the two children were unable to attend college on a full-time basis because of defendant's failure to make consistent child support payments and his failure to pay his share of the children's college expenses.

In a notice of motion returnable on January 30, 2009, defendant sought to emancipate both children because the children were "not full-time students, as per the divorce settlement." On February 2, 2009, the court denied defendant's motion in a written order. The court's findings and conclusions, as set forth in the order, consisted of the following:

Plaintiff was served . . . . She responded and submitted proof to the Court that both John and Natasha are currently enrolled as full-time college students. John is due to graduate in May/June 2009. Wage garnishment shall continue at the rate of $199 support obligation + $50 arrears = $149/week.

On appeal, defendant contends the court erred in denying his motion to emancipate the children and to adjust his child support arrears because John was more than twenty-three years old when the order was entered on February 2, 2009. In addition, defendant claims both children failed to diligently pursue a college education following their graduation from high school.

We recognize, of course, that "a brief hiatus between high school and college is becoming commonplace," Sakovits v. Sakovits, 178 N.J. Super. 623, 631 (Ch. Div. 1981), and that it may be unreasonable to enforce the PSA as written and agreed to by the parties because of changed circumstances or other equitable considerations, including defendant's failure to consistently comply with his financial obligations. See Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006) (noting that an agreement between parents to support a child past majority "is enforceable if fair and equitable").

The findings of a Family Part judge are "binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Nevertheless, in the present matter, the court did not determine whether "each child is in legitimate and diligent pursuit" of higher education under the parties' PSA, and whether it was fair and equitable to enforce the emancipation provisions of the PSA in light of defendant's failure to satisfy his financial obligations or his claim of changed circumstances. Consequently, we are constrained to reverse and remand to the Family Part for further proceedings because the order denying defendant's motion was entered without oral argument, without adequate factual findings, and it is mathematically incorrect.

Defendant requested oral argument when he filed his notice of motion, and he was presumptively entitled to oral argument under Rule 1:6-2(d) and Rule 5:5-4(a). See also Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997) ("This was obviously a substantive motion that the parties should have been allowed to argue orally as a matter both of due process and the appearance of due process."). In addition, Rule 1:7-4 requires a court to "find the facts and state its conclusions of law . . . on every motion decided by a written order that is appealable as of right." Unsupported conclusions are insufficient. "Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions." Curtis v. Finneran, 83 N.J. 563, 570 (1980). That did not happen here. Accordingly, the order denying defendant's motion to emancipate the children is reversed and the matter is remanded to the Family Part for such further proceedings as the court deems necessary and appropriate to resolve the disputed issues. We do not retain jurisdiction.

 
Reversed and remanded.

The order incorrectly states that defendant must pay only $149 per week in child support instead of $249 ($199 plus $50 = $249).

(continued)

(continued)

6

A-3385-08T1

June 15, 2010