TONYA WOODLAND v. STEVEN J. COLLINS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3788-06T23788-06T2

TONYA WOODLAND,

Plaintiff-Appellant,

v.

STEVEN J. COLLINS,

Defendant-Respondent.

__________________________________

 

Submitted November 7, 2007 - Decided

Before Judges Coburn and Grall.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Cape May County, Docket No. FD-05-366-02.

Borger, Jones & Keeley-Cain, P.A., attorneys

for appellant (Thomas M. Keeley-Cain, on

the brief).

Respondent did not file a brief.

PER CURIAM

Plaintiff Tonya Woodland and defendant Steven J. Collins have two children, a daughter Lea and a son Sam. Woodland appeals from a final order of the Family Part emancipating Sam and denying her motion to reinstate Collins's child support obligation for Lea. Collins did not file a brief in opposition to Woodland's appeal. Because Collins's obligation to provide child support for Sam was not before the court, we reverse the order terminating that obligation. Because the court did not state the facts or reasons supporting its conclusion that there was no basis for reinstating child support for Lea, we also reverse and remand the order denying that request.

The facts stated below are drawn from court records and the unsworn testimony given by Woodland and Collins during the hearing before the judge of the Family Part on December 14, 2006.

Lea was born in 1986 and graduated from high school in 2004. She was five years old when her parents separated. According to Woodland, Lea attended community college for three semesters and then left school for one semester because Woodland had left her job to care for her mother and could not afford to contribute to her tuition. In the fall of 2006, Lea re-enrolled in college and took four classes for a total of thirteen credits. The tuition is $1500 per semester. Lea works ten hours per week and earns nine dollars per hour. She lives in her mother's home. At the time of this hearing, Lea was registered to attend community college during the spring semester.

Sam was born in 1988. He was three years old when his parents separated. Sam graduated from high school in 2006. He applied to Rutgers University but was not accepted. He was admitted to Kean University and to Clark Atlanta University. Although Clark Atlanta is more expensive than Kean, Sam preferred Clark Atlanta, and Woodland believed that the environment in Atlanta would be better for him. Sam was scheduled to start classes in January 2007, and, while waiting to commence his studies, he was working twenty-five hours per week and earning between thirteen and fourteen dollars per hour. Tuition and fees for Clark Atlanta total $22,000 per year. Room and board is $7000 per year. Sam will receive approximately $600 per year in financial aid, and Woodland plans to co-sign the student loans he will obtain.

Woodland earns $70,000 per year. She pays $516 per month to cover the children under her car insurance. She also provides them with food, clothing and shelter in her home.

Collins earns $28,000 per year. In 2004, he attempted to reestablish his relationship with the children. Collins said he recognized his responsibility and had "no problem" with contributing to his son's support. He objected to providing support for his daughter, who would soon be twenty-one years of age. According to Collins, Lea interrupted her education more than once and should, at this point, take responsibility for her support.

On August 31, 2006, Collins filed a motion to emancipate Sam. On September 29, 2006, Woodland filed a motion to reinstate Collins's obligation to pay child support for Lea, which had been terminated on September 22, 2005. On October 12, 2006, the parties appeared before a hearing officer who determined that the break in Sam's education was temporary. Accordingly, the officer recommended an order placing Collins's child support obligation to Sam on hold and granting his application to emancipate Sam effective August 31, 2006, unless Woodland provided proof of Sam's enrollment in college as a full-time student by December 31, 2006. A judge of the Family Part entered an order incorporating those recommendations on October 12, 2006. The order did not address Woodland's motion to reinstate child support for Lea.

On October 26, 2006, Woodland filed a motion for reconsideration in order to obtain a ruling on her motion to reinstate support for Lea. On December 14, 2006, the parties appeared before a hearing officer, who determined that the matter was complex and should be considered, in the first instance, by a judge. The judge heard the parties later that day.

We address the judge's ruling emancipating Sam first. In addressing the support she provided to Lea, Woodland mentioned Sam's expenses. The judge apparently understood Woodland's reference to Sam as a request for an order compelling Collins to contribute to his son's support and college expense. There was, however, no application relevant to Sam's support before the judge. Under the terms of the order issued on October 12, 2006, Woodland had until December 31, 2006, to provide proof of Sam's enrollment in college as a full-time student for the term commencing in January 2007. Because the issue of Sam's emancipation was not before the court and because Collins acknowledged his obligation to contribute to Sam's support, we vacate the order emancipating Sam. Because the order of December 14, 2006, erroneously abbreviated the deadline for Woodland to provide proof of Sam's enrollment in college, we remand for further proceedings necessary to determine the parties' respective obligations under the October 12 order. The judge should set a new date by which Woodland must present the evidence of Sam's college enrollment required by the October 12 order.

We also must reverse and remand the order denying Woodland's application to reinstate support for Lea. The judge did not make findings of fact or explain his reasons for concluding that he did not have "any basis upon which" to reinstate Collins's obligation to contribute to Lea's support. Because the parties gave conflicting unsworn testimony about the history of Lea's college attendance, the judge should conduct a second hearing and consider only testimony given under oath. N.J.R.E. 603; see Penbara v. Straczynski, 347 N.J. Super. 155, 158 n.1 (App. Div. 2002) (noting the importance of administering an oath prior to taking testimony). The judge should consider both the standard for emancipation enunciated in Tretola v. Tretola, 389 N.J. Super. 15 (App. Div. 2006); Filippone v. Lee, 304 N.J. Super. 301 (App. Div. 1997) and the standard for contribution to college costs enunciated in Gac v. Gac, 186 N.J. 535 (2006); Newburgh v. Arrigo, 88 N.J. 529 (1982). The standards are not identical.

Reversed and remanded.

 

The names Lea and Sam are fictitious.

(continued)

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6

A-3788-06T2

November 19, 2007