WILLIAM NIEVES v. LINDA R. TINATI-CUELLAR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5686-09T2

WILLIAM NIEVES,

Plaintiff-Appellant,

v.

LINDA R. TINATI-CUELLAR,

f/k/a LINDA NIEVES,

Defendant-Respondent.

__________________________

November 23, 2011

Submitted October 4, 2011 - Decided

Before Judges Payne and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-744-98.

William Nieves, appellant pro se.

Linda R. Tinati-Cuellar, respondent pro se.

PER CURIAM

In this post-judgment matrimonial matter, plaintiff William Nieves appealed from the July 2, 2010 Family Part order, which denied his motion to emancipate the parties' daughter, D.N.,1 and terminate child support, retroactive to May 31, 2009. Following a temporary remand for reconsideration of the July 2, 2010 order, the trial judge entered an order on February 7, 2011, which granted plaintiff's motion, but emancipated D.N. and terminated child support effective September 27, 2010.2 We affirm in part, reverse in part, and remand for further proceedings.

Plaintiff and defendant Linda Tinati-Cuellar, f/k/a/ Linda Nieves, married in March 1985, and divorced in February 1999. D.N., born in December 1986, is their only child. Pursuant to their Property Settlement Agreement (PSA), which was incorporated into the Final Judgment of Divorce, plaintiff had to pay $113 weekly child support until D.N. reached the age of eighteen. The PSA also required plaintiff to provide health and dental insurance for D.N., but contained no provision for payment of college expenses. In February 2004, child support increased to $1000 monthly.

D.N. began attending Temple University in September 2005. On January 18, 2007, the parties filed a consent order, which required plaintiff to continue paying child support of $1000 monthly in lieu of contribution for previous or future college costs. This provision was contingent on D.N.'s enrollment as a full-time student in good standing, and terminated child support when D.N. completed her undergraduate degree at Temple. D.N. was required to provide plaintiff with verifiable evidence of her matriculation status, send her official transcript to him each semester, execute authorizations necessary for him to directly contact Temple, and permit him full access to her student records, including financial aid information and grades.

Plaintiff claimed that he encountered difficulty obtaining D.N.'s transcripts from Temple, and, when he asked defendant to provide this information, she merely provided a redacted and unofficial transcript. Plaintiff also claimed that in July 2008, he finally received a copy of D.N.'s official transcript, which revealed that she had falsified sixteen of her thirty grades on the unofficial transcript that defendant had sent him, substituting A's for D's. Also, D.N. had only seven credits for the spring 2007 semester, which no longer qualified her as a full-time student. As a result, in September 2008, plaintiff filed a motion to terminate child support because D.N. did not attend the 2007 spring semester on a full-time basis.3

In opposition, D.N. submitted a certification admitting that she had modified certain grades because she was embarrassed; however, her grades had improved, and she had taken courses over two summer sessions to compensate for the classes she did not finish in the 2007 spring semester.

In a December 24, 2008 order, the trial judge denied plaintiff's motion, and required him to continue paying child support and provide health and dental insurance for D.N. The judge found that D.N. had obtained "make up" course credits during two 2008 summer sessions, she did not ask plaintiff to contribute toward those summer sessions, she was currently a full-time student in good standing and living on campus and was scheduled to graduate on time. The judge also ordered defendant give plaintiff access to D.N.'s academic and financial records, and submit a certification regarding her knowledge of D.N.'s plan to attend summer sessions.4

In February 2009, plaintiff filed a motion based on the January 18, 2007 consent order to emancipate D.N. and terminate child support as of May 31, 2009, the date she would graduate from Temple. In opposition, defendant argued that D.N. planned to attend law school in the fall of 2009, and was prohibited from working during her first year.

The judge denied plaintiff's motion. After analyzing the Newburgh5 factors, the judge concluded that plaintiff was not required to contribute toward law school. After applying the Child Support Guidelines, the judge reduced child support to $106 weekly, retroactive to May 31, 2009. The judge also ordered defendant to provide proof of D.N.'s enrollment in law school, allow plaintiff direct access to D.N.'s tuition information, including financial aid, scholarships or grants she receives, and arrange for plaintiff to receive proof of D.N.'s enrollment and a copy of her transcript directly from the law school after each semester. The judge entered an order on July 13, 2009, memorializing his decision.

D.N. began attending the Drexel University Earle Mack School of Law (Drexel Law School) in the fall of 2009. Plaintiff subsequently discovered that the law school permits first-year students to work up to twenty hours per week. As a result, on May 7, 2010,6 he filed another motion for emancipation and termination of child support, retroactive to May 31, 2009, the date D.N. graduated from Temple. He also sought reimbursement for overpaid medical expenses from 1998 to 2008, and overpaid child support retroactive to May 31, 2009. He did not argue that D.N. was not attending law school full time; rather, he argued that D.N. had misrepresented that a law school policy prohibited her from working during her first year, but that Drexel Law School permits first year students to work up to twenty hours per week. As for terminating child support, he argued that the factors set forth in N.J.S.A. 2A:34-23, not the Child Support Guidelines, applied, and that he had satisfied each applicable factor that supported termination.

The judge deemed plaintiff's motion to be one for reconsideration of the July 13, 2009 order and denied it, finding it was untimely filed, and plaintiff knew or could have discovered prior to July 2009, that D.N. was permitted to work during her first year at Drexel Law School. Substantively, the judge found that D.N. was entitled to continued support because she was "diligently pursuing her legal education as a full-time law student . . . " The judge memorialized his decision in the July 2, 2010 order. It is from this order that plaintiff appealed.

Following the filing of the appeal, the judge supplemented his decision pursuant to Rule 2:5-1(b). He acknowledged that he should have applied N.J.S.A. 2A:34-23, not the Child Support Guidelines, in setting child support, but nonetheless concluded that because plaintiff did not appeal from the July 13, 2009 order or move for reconsideration, Rule 4:49-2 barred his motion as well.

On November 17, 2010, plaintiff filed a motion in this court to supplement the record to include a withdrawal form from Drexel Law School that he discovered on November 11, 2010, which indicated that D.N. had withdrawn on September 27, 2010. We temporarily remanded for reconsideration of the July 2, 2010 order in light of this new information. The parties and D.N. submitted correspondence to the judge addressing the new information. D.N. advised the judge that, although she was attending Rutgers University full time, she agreed to emancipation. Accordingly, the judge entered an order on February 7, 2011, which granted plaintiff's motion, but emancipated D.N. and terminated plaintiff's child support obligation retroactive to September 27, 2010, the date that D.N. withdrew from Drexel Law School. The judge also ordered defendant to refund plaintiff $2211 for overpaid child support from September 27, 2010.

On appeal, plaintiff contends in his initial merits brief that the judge erred in deeming his May 2010 motion to be an untimely motion for reconsideration pursuant to Rule 4:49-2. He argues that Rule 4:50-1 applied to his motion because he presented new reasons for emancipation and termination of child support than he had previously presented, including that N.J.S.A. 2A:34-23 applied to his request to terminate child support. Plaintiff also contends that the judge erred in failing to apply N.J.S.A. 2A:34-23.

In his supplemental brief following the remand, plaintiff contends that the emancipation date should be November 7, 2009, because this date represents the end of the Drexel Law School's fall 2009 semester and the date through which there is an official transcript. He argues that there was no official transcript showing that D.N. attended law school full time after November 7, 2009, and the judge erroneously relied on a letter from D.N. to find that she was diligently pursuing her law degree from November 2009 through September 2010.

We review a trial court's decision regarding the emancipation of a child under an abuse of discretion standard. See Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006) (holding that "given the inherent equitable powers of the Family Part, support orders, including those setting emancipation events, may be revised and altered by the court from time to time as circumstances may require . . . ." (internal quotation omitted). "[An] abuse of discretion only arises on demonstration of 'manifest error or injustice[,]'" Hisenaj v. Kuehner, 194 N.J.6, 20 (2008) (quoting State v. Torres, 183 N.J.554, 572 (2005)), and occurs when the trial judge's "'decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" United States ex rel. USDA v. Scurry, 193 N.J.492, 504 (2008) (alteration in original) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J.561, 571 (2002)).

Applying these standards, we discern no reason to disturb the judge's decision on the emancipation date. The withdrawal form that plaintiff submitted to us proves that D.N. was still enrolled as a full-time student in good standing at Drexel Law School until September 27, 2010.

We reach a different conclusion as to the denial of defendant's motion to terminate child support, filed on May 7, 2010, which we also review under an abuse of discretion standard. See Gotlib v. Gotlib, 399 N.J. Super. 295, 308-09 (App. Div. 2008). First, the motion was not one for reconsideration; rather, it was based on new reasons for emancipation and termination of child support D.N.'s alleged misrepresentation about the law school policy prohibiting a first-year student from working, and the application of the factors set forth in N.J.S.A. 2A:34-23. As the judge acknowledged, he should have applied N.J.S.A. 2A:34-23, not the Child Support Guidelines, in determining child support at that time. Accordingly, we remand for consideration of plaintiff's motion pursuant to N.J.S.A. 2A:34-23. The motion ruling shall be retroactive to May 7, 2010.

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

1 We use initials in order to protect the daughter's identity.

2 The order reflects September 22, 2010 as the emancipation date, but September 27, 2010, is the actual date.

3 Except for a motion plaintiff filed in May 2010, and defendant's and D.N.'s opposition thereto, plaintiff has failed to include in his appendix any of the numerous motions, cross-motions, and supplemental motions, as well as supporting certifications filed with respect thereto. Accordingly, we have derived some of the parties' arguments and facts relating thereto from the trial judge's statements of reasons attached to the orders dated December 24, 2008, March 6, 2009, July 13, 2009, July 2, 2010, and February 7, 2011.

4 In a March 6, 2009 supplemental order, the judge ordered defendant to pay $854.85 for plaintiff's attorney's fees and costs for the motion, among other relief.

5 Newburgh v. Arrigo, 88 N.J. 529 (1982).

6 In his procedural history and statement of facts, plaintiff states that May 4, 2010 is the filing date of this motion; however, his notice of motion and supporting certification are dated May 7, 2010. We, thus, use May 7, 2010, as the filing date.