A-0HERMINIO RIVERA, JR v. KATIOSCA RIVERA January 13, 2014

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

HERMINIO RIVERA, JR.,

Plaintiff-Appellant,

v.

KATIOSCA RIVERA,

Defendant-Respondent.

___________________________________________________

January 13, 2014

 

Submitted December 17, 2013 Decided

 

Before Judges Messano and Hayden.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1169-99.

 

Law Offices of Jef Henninger, attorneys for appellant (Jef Henninger, of counsel and on the brief; Jacyln N. Wyrwas, on the brief).

 

Respondent has not filed a brief.

PER CURIAM

Plaintiff Herminio Rivera, Jr., and defendant Katiosca Rivera (now known as Katiosca Aponte) are the parents of two children, a daughter ("Alice"), born in 1990, and a son ("James"), born in 1994.1 Following the parties' divorce, and pursuant to a post-judgment order entered on December 7, 2008, plaintiff was granted custody of the children and defendant was ordered to pay child support. By order dated December 7, 2009, defendant was to be responsible for twenty-four percent of "all child care costs including . . . post[-]financial aid college tuition."

On October 19, 2012, defendant filed a motion to modify her child support obligation based upon alleged changes in financial circumstances, most notably the undisputed fact that Alice now resided with her mother. Plaintiff cross-moved seeking a declaration that Alice was emancipated and that defendant pay twenty-four percent of "[p]arent loans" taken out to finance both children's post-secondary education in accordance with the December 2009 order.

In his certification, plaintiff claimed that Alice had "made no progress[] in . . . earning a degree[,] . . . ha[d] not taken her education seriously[,]" and failed to maintain a passing grade point average at various schools she had attended. He also noted that Alice earned $12,964 during 2011, evidence, he claimed, of her independence from her parents.

Defendant's reply certification asserted that Alice was currently enrolled in community college and taking an online course at one of the State universities. She also claimed that she was not advised of James' decision to attend an "out-of-state" school before his enrollment at Springfield College.

On December 5, 2012, the judge entered an order that, among other things, 1) denied plaintiff's request to have Alice be declared emancipated; 2) granted plaintiff's request to have defendant pay twenty-four percent of Alice's parent loans; and 3) denied plaintiff's request that defendant pay twenty-four percent of James's parent loans for 2012 and 2013. In his written statement of reasons, the judge determined that based upon the parties' certifications, Alice "appear[ed] to be attending college and does not yet appear to be beyond the sphere of influence and responsibility exercised by parents."

Regarding the loans, the judge noted the December 2009 order was "clear on its face," and, therefore, defendant was responsible for twenty-four percent of Alice's loans. However, citing Gac v. Gac, 186 N.J. 535 (2006), and again based upon the parties' certifications, the judge determined that "[p]laintiff appear[ed] to have enrolled [James] . . . without discussing this matter with [d]efendant." The judge concluded that "[p]laintiff cannot now request reimbursement for such expenses without notifying [d]efendant or filing a [m]otion before the expenses were incurred."

Plaintiff moved for reconsideration on January 11, 2013. He contested defendant's assertion that she was unaware of James's college selection. In support, James filed a certification in which he claimed that, despite his efforts to keep defendant informed, she "never took a role in researching or visiting any colleges." Defendant filed opposition and cross-moved to compel plaintiff to pay child support for Alice retroactive to August 16, 2012, the date Alice began living with defendant. Defendant also sought to compel plaintiff to pay "his share" of Alice's college expenses since she planned to enroll at Rowan University.

In his reply certification, plaintiff asserted that Alice failed all of her classes at community college during the fall 2012 semester. Noting that defendant did not provide any proof of Alice's enrollment at Rowan, he expressed doubt that she had actually matriculated.

The judge entered an order on February 4 that required defendant to provide plaintiff with proof of Alice's enrollment at Rowan University within fourteen days, and, if defendant failed to do so, plaintiff could again move for emancipation. The judge ordered plaintiff to pay child support on behalf of Alice, retroactive to August 16, 2012, and further required him to pay seventy-six percent of Alice's "out-of-pocket college expenses at Rowan . . . including her commuting expenses when she begins her attendance there . . . ."

The judge also ordered defendant to pay twelve percent of James's parent loans for the 2012-2013 school year. In his written statement of reasons, the judge explained there was "a vast disparity in the parties' incomes," and defendant had been paying child support for James while he was attending college. The judge arrived at "the appropriate percentage" of defendant's contribution after considering, in particular, three of the factors set forth in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982), specifically the amount of the contribution sought by the child for the cost of higher education, the ability of the parent to pay that cost and the financial resources of both parents.

Plaintiff filed this appeal on March 4, 2013. His notice of appeal seeks review of both the December 5, 2012 order and the February 4, 2013 order upon reconsideration.

I.

We first note that plaintiff's appeal from the December 5, 2012 order is untimely. See Rule 2:4-1 (requiring appeals from final judgments be taken within forty-five days of their entry). The time is tolled "by the timely filing and service of a motion . . . for rehearing or reconsideration . . . pursuant to R. 4:49-2." R. 2:4-3(e). A motion for reconsideration, however, must be filed "not later than [twenty] days after service of the judgment or order . . . . R. 4:49-2. "[A]n untimely motion to reconsider does not" toll the time for appeal. Eastampton Ctr., LLC v. Planning Board of Eastampton, 354 N.J. Super. 171, 187 (App. Div. 2002). Plaintiff's motion for reconsideration was untimely and, therefore, did not serve to toll the time for seeking review of the December 5, 2012 order. We therefore only review the February 4, 2013 order.

Motions for reconsideration are addressed to "'the sound discretion of the Court, to be exercised in the interest of justice.'" Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). Reconsideration is to be utilized narrowly, and reserved for situations where the court relied "'on plainly incorrect reasoning[,]'" where the court failed to consider probative, competent evidence, or where "'there is good reason for [the court] to reconsider new'" evidence. Town of Phillipsburg v. Block 1508, Lot 12, 380 N.J. Super. 159, 175 (App. Div. 2005) (emphasis omitted) (quoting Pressler, Current N.J. Court Rules, Comment 2 on R. 4:49-2 (2005)); see also Fusco v. Board of Ed., 349 N.J. Super. 455, 462 (App. Div.) (noting "'[r]econsideration should be used only for those cases which fall into that narrow corridor'" where "'the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or . . . the Court either did not consider, or failed to appreciate the significance of probative, competent evidence[]'") (quoting D'Atria, supra, 242 N.J. Super. at 401), certif. denied, 174 N.J. 544 (2002). Reconsideration should be exercised "'in the service of the ultimate goal of substantial justice.'" Casino Reinvestment Dev. Auth. v. Teller, 384 N.J. Super. 408, 413 (App. Div. 2006) (quoting Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 264 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988)).

II.

Plaintiff contends that the judge erred in denying his request to declare Alice emancipated. He also argues the judge failed to make sufficient findings of fact in deciding the share defendant was to pay toward James's college expenses, and, because there were material disputed facts, a plenary hearing was required.

Although plaintiff never specifically sought a plenary hearing on either issue, we agree that the proper resolution of both issues could not be made on the basis of the parties' dueling certifications. We therefore reverse the February 4, 2013 order and remand the matter to the trial court for further proceedings consistent with this opinion.

Alice's Emancipation

Plaintiff's essential point is that given Alice's undisputed failure to maintain enrollment at various educational institutions and the lack of proof regarding her current enrollment, the judge should have declared her emancipated. Plaintiff's motion for reconsideration did not seek this relief. However, defendant's cross-motion sought an order requiring plaintiff to pay child support for Alice, including payment of seventy-six percent of her out-of-pocket expenses at college, thus triggering reconsideration of the child's status.

Emancipation is "the act by which a parent relinquishes the right to custody and is relieved of the duty to support the child." Newburgh, supra, 88 N.J. at 543. We have said that emancipation is appropriate when "the fundamental dependent relationship between parent and child is concluded, the parent relinquishes the right to custody and is relieved of the burden of support, and the child is no longer entitled to support." Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997).

Resolution of whether a child is emancipated requires a fact-sensitive inquiry, and the party who seeks a declaration of emancipation bears the burden of proof. Ibid. The court must determine "whether the child has moved 'beyond the sphere of influence and responsibility exercised by a parent and obtain[ed] an independent status of his or her own.'" Ibid. (quoting Bishop v. Bishop, 298 N.J. Super. 593, 598 (Ch. Div. 1995)).

Here, when he sought reconsideration and responded to defendant's cross-motion, plaintiff argued that defendant failed to provide any proof that Alice had matriculated for the current semester. In his written statement of reasons, the judge indeed noted that "there is no proof of [Alice] attending Rowan College." Nevertheless, he denied plaintiff's request and required only that defendant furnish proof, leaving plaintiff the option of filing yet another motion.

Plaintiff correctly notes that Alice's dismal academic record to date may ultimately compel the legal conclusion she is emancipated. As we said in Filippone, supra, 301 N.J. Super. at 311-312, "Newburgh does not require . . . support and concomitant deferred emancipation for a child unable to perform successfully in [her] academic program." However, in Fillippone, we considered not only the child's poor academic record, but also his failure to return to school in the semester after he left. Ibid.

In other words, whether Alice was indeed enrolled at Rowan University, as defendant contended, or not, as plaintiff asked the judge to infer from lack of proof, was a significant factor in the calculus of any decision regarding emancipation, as well as those college costs for which plaintiff was now made responsible. See Tretola v. Tretola, 389 N.J. Super. 15, 20 (App. Div. 2006) (noting in this context the need for a plenary hearing when "there were material facts in dispute and evidence beyond the motion papers [is] necessary for resolution of the matter . . .").

Therefore, we think it was a mistaken exercise of discretion to again effectively delay the emancipation decision and place the onus on plaintiff to re-file his request. We decline the opportunity to resolve the issue as a matter of law based on the record presented. Whether emancipation of Alice is appropriate can be decided on remand when the judge will have the benefit of current facts.

Payment of James's College Expenses

Plaintiff argues that the judge failed to provide adequate findings of fact and conclusions of law regarding defendant's share of responsibility for the parent loans associated with James's college expenses. Plaintiff urges for the first time that, because there were disputed material facts, a plenary hearing should have been held.

We note that the judge exercised his discretion and reconsidered his prior order. Apparently concluding that his earlier reliance upon Gac, supra, to deny plaintiff's request required reconsideration in light of James's certification, the judge determined defendant bore some responsibility for the parent loans. However, instead of ordering defendant to comply with the December 2009 order that required her to pay twenty-four percent of the expenses, the judge concluded she should pay only half that amount.

In Newburgh, supra, 88 N.J. at 545, the Court provided a framework for evaluating parental contribution towards a child's post-secondary education. Courts are instructed to "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 [22] education; (8) the financial resources of the child, including assets owned [1039] 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.

[Ibid.]

The judge "has an obligation under Newburgh and N.J.S.A. 2A:34-23(a) to consider all the enumerated factors." Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008) (emphasis added) (citing Raynor v. Raynor, 319 N.J. Super. 591, 617 (App. Div. 1999)).

We do not necessarily agree that reversal is required simply because the judge mentioned only three of the Newburgh factors in his opinion. However, we do agree with plaintiff that other factors clearly had relevance, and there were factual disputes as to some that could not be resolved on the parties' certifications.

Additionally, a prior order setting defendant's support obligations for James was in effect. Although the judge based his reconsideration decision upon the "vast disparity" in incomes between plaintiff and defendant, there was nothing to indicate this was a change in circumstances. See Lepis v. Lepis, 83 N.J. 139, 148 (1980) (noting that post-judgment modification or judicial decree requires a showing of changed circumstances). Moreover, as a result of denying plaintiff's emancipation request, defendant was now going to receive child support for Alice, a factor that does not seem to be reflected in the judge's consideration of the parties' respective financial conditions. As a result, we believe it was a mistaken exercise of discretion to modify the amount of support defendant was obligated to pay toward the parent loans for James without a plenary hearing.

Because disputed material facts may prove crucial to the judge's consideration of the Newburgh factors, and because of the interdependence of both this issue and Alice's emancipation, we remand the matter to the trial court for a plenary hearing on both.

Reversed and remanded. We do not retain jurisdiction.

1 For privacy concerns, we have fictionalized the names of the parties' children.