BERNIER LAUREDAN v. GERTRUDE LAUREDAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0155-11T1

BERNIER LAUREDAN,

Plaintiff-Respondent/

Cross-Appellant,

vs.

GERTRUDE LAUREDAN,

Defendant-Appellant/

Cross-Respondent.

-

October 19, 2012

Argued September 19, 2012 - Decided

Before Judges Reisner and Hoffman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-24-99.

Charles F. Ryan argued the cause for appellant/cross-respondent.

Landry Belizaire argued the cause for respondent/cross-appellant (Belizaire & Associates, attorneys; Mr. Belizaire, on the brief).

PER CURIAM

In this post-judgment matrimonial case, defendant Gertrude Lauredan appeals from the July 28, 2011 Family Part order ruling on her application to compel payment of college tuition and expenses. Plaintiff Bernier Lauredan cross-appeals from a separate order entered the same date on his motion for emancipation of the parties' oldest child. Because the trial court failed to fully address defendant's college-cost application, we are constrained to reverse and remand on that issue. As to the court's emancipation ruling, we affirm.

I.

The parties were married in 1985, separated in 1988 and divorced in 1992. They had two children, a daughter born in 1985 (the daughter) and a son born in 1987 (the son). There is a long history of conflict between the parties. Defendant was granted custody of the children in the Final Judgment of Divorce. In 1998, plaintiff filed to change custody resulting in a full custody trial. By then, plaintiff had utilized over a dozen attorneys. Plaintiff was unsuccessful and defendant was awarded over $21,000 in counsel fees and costs.

The divorce judgment was silent on the issue of college expenses. The first order in the record addressing college expenses was a September 14, 2004 consent order. The order required plaintiff to pay one-half of the daughter's net college costs after deduction of loans and/or scholarships.1

The daughter graduated from college in May 2008, at the age of twenty-three, and the son graduated from college in May 2009, at the age of twenty-two.

Since 2004, plaintiff, a physician, had been paying child support through probation at the rate of $400 per week. Plaintiff continued to pay child support at the same rate until May 2010, when he stopped paying child support for both children. The record contains no explanation for plaintiff's failure to address his child support obligation upon the graduation of each child. When plaintiff stopped making the $400-weekly payment, he took no action to formally terminate the existing child support order. As a result, a warrant issued for his arrest. Plaintiff immediately filed an order to show cause to cancel the warrant. He also sought retroactive emancipation of the children to the time of their graduation.

On December 15, 2010, the trial court entered an order emancipating the son, effective June 1, 2009, and ordering the parties into mediation to try to resolve the issue of the daughter's emancipation date. The mediation never took place, with each party blaming the other for this failure.

Plaintiff then filed a further application to address the issue of the date of the daughter's emancipation, and to seek a refund of overpayments. Defendant filed a cross-motion requesting "[e]nforcement of order for plaintiff to pay for one-half of children's college tuition and expenses."

On July 28, 2011, the trial court decided the motions under review, without oral argument, and signed two orders.2 The first order emancipated the daughter and terminated child support for her, effective June 1, 2009, and required defendant to reimburse plaintiff a total of $16,800 in child support overpayments for both children. The second order, on defendant's college-expense motion, granted "[e]nforcement of order mandating plaintiff to pay for half of children's college tuition and expenses." (emphasis added). Additional language in the order, as well as the judge's statement of reasons, would indicate the judge intended only to grant relief on defendant's cross-motion for the daughter's college expenses in the amount of $6,612.40, representing only her first year, and as to that figure, the judge left the door open to adjustment by referencing the possibility of "further supplemental proof of payment." The judge completely failed to address the last three years of the daughter's college costs and all four years of the son's college costs.

II.

"Findings by [a] trial judge are considered binding on appeal when supported by adequate, substantial, and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1975). The appellate court should "exercise its original fact finding jurisdiction sparingly," and findings on which a judgment is based "should not be disturbed unless 'they are wholly insupportable as to result in a denial of justice.'" Id. at 483-84. Furthermore, "because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998); see N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 112 (2011).

In Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997), Judge Pressler summarized the controlling principles relating to emancipation:

Emancipation of a child is reached 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. Emancipation may occur by reason of the child's marriage, by court order, or by reaching an appropriate age, and although there is a presumption of emancipation at age eighteen, that presumption is rebuttable. In the end the issue is always fact-sensitive and the 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." Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div.1995).

Further, the court's emancipation determination "involves a critical evaluation of the prevailing circumstances including the child's need, 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) (citing Newburgh v. Arrigo, 88 N.J. 529, 545 (1982)). Emancipation is "the conclusion of the fundamental dependent relationship between parent and child[.]" Id. at 17.

III.

We turn first to plaintiff's challenge to the court's determination as to the date of the daughter's emancipation. Upon graduation, she continued to reside with defendant while working temporarily at a hotel, close to defendant's home. In August 2009, she moved out of defendant's home to New York, where she finally obtained a job in her field. Here, the record supports the trial court's determination that the daughter was emancipated as of September 1, 2009 rather than the earlier date of June 1, 2008. Plaintiff does not dispute that upon graduation, The daughter lived in defendant's home and worked at a low-paying, temporary job while searching for employment in her field, journalism. Furthermore, when requesting modification of an existing duty to pay child support, the moving party bears the burden to establish the circumstances that warrant change. Dolce, supra, 383 N.J. Super. at 19. Plaintiff presented no evidence that The daughter had moved beyond the sphere of her mother's influence before moving out of her home.

The judge correctly applied the controlling legal principles and did not mistakenly exercise his discretion in determining that the daughter became emancipated on September 1, 2009. We therefore have no basis to disturb his ruling on the emancipation issue.

We next consider the court's ruling on defendant's motion to enforce plaintiff's obligation to pay for one-half of the children's college tuition and expenses. The September 14, 2004 consent order contained the following paragraphs relevant to the issue of college costs:

1. With regard to this past college year (August 2003 through June 2004) of [the daughter's], the total tuition after allowing for any loans, grants, or scholarships totaled $13,124.80, which entire bill was paid by defendant, Gertrude Lauredan; plaintiff, Bernier Lauredan therefore owes Gertrude Lauredan $6,612.40 which he may pay either by paying $551.04 per month on the first of each month beginning in the month of July 2004 and continuing on the first of each month for that month and an additional eleven months; or by paying the first $13,224.80 of tuition for the 2004-2005 school term; any missed payments will result in the balance owed being immediately reduced to a judgment suitable for docketing.

2. The parties will be responsible, each of them, to bear one half of the net costs (after loans and/or scholarships), which costs will include tuition due for their daughter . . . at . . . College as well as her room and board, fees and books, and which payments will be made in a timely fashion so as to not jeopardize [the daughter's] course schedule or to incur late fees. Any late fees due to late payments will be immediately paid by the party whose payment was late.

. . .

8. With regard to any other costs or monies paid in connection with college on behalf of the parties' daughter . . . including monies paid directly to [the daughter], monies paid for the value of a car for [the daughter], or monies paid by either party for anything over and above tuition, room and board, fees and books, as specifically set forth in this order, those payments on the part of either party will be deemed voluntary.

Attachments to defendant's supporting certification appear to document a claim of $23,185.21 for the daughter's college expenses and $56,258 for the son's college expenses. However, the payment records and accounting provided by defendant are not particularly clear or easy to follow.

The judge's order relating to college costs clearly granted "[e]nforcement of order mandating plaintiff to pay for half of the children's college tuition and expenses." (emphasis added). However, the balance of the judge's order only specifically directed plaintiff pay defendant "$6,612.40 or amount proven he paid $13,224.80 of tuition as per [September 14, 2004] order[]". The judge also indicated that "[p]laintiff has not presented any proof of payment[]" regarding the daughter's college expenses.

Defendant argues that the judge misapplied the September 14, 2004 consent order requiring plaintiff to contribute to the children's college expenses. Defendant contends the judge misinterpreted the consent order as requiring plaintiff to contribute only to the daughter's 2003-2004 college term rather than her entire tenure at college. Plaintiff does not dispute that he is responsible for half of the total college costs of both children; rather, plaintiff only claims that the trial court "incorrectly decided the issue of the daughter's tuition for the 2004 academic year," arguing that he already paid the tuition but could not produce documentary proof of payment.3

In light of the conflicting language in the order addressing college costs, and the absence of any language in the judge's statement of reasons addressing defendant's application for college expenses for the daughter's last three years, or the son's four years, we have no alternative but to reverse and remand for an evidentiary hearing to determine the net amount owed by plaintiff to defendant, i.e. one-half the total net college costs for both children, less $16,800 in child support overpayments.

It was an abuse of discretion to enter the order relating to college costs as it failed to fully address the matters before the court. O'Donnell v. Singleton, 384 N.J. Super. 141, 144 (App. Div. 2006) (an appellate court will only disturb the findings of a Family Part judge where there has been an abuse of discretion). With the emancipation of the children, it was time for the parties to go their separate ways. Before that can happen however, the remaining issues must be fully and fairly addressed. The matter is therefore remanded for an evidentiary hearing to determine the actual college costs incurred and the actual payments made by plaintiff, for both children. The court is reminded of the critical importance of deciding all remaining issues as well making appropriate findings. As Judge Pressler aptly noted:

We have repeatedly cautioned the trial court with respect to the critical importance of the obligation to provide findings and a statement of reasons both in terms of the trial and appellate process. Litigants and their attorneys are entitled to know the factual and legal basis of the court's determination, and they are disserved if the trial court fails in this obligation. Moreover, the appellate court ordinarily cannot perform its review function in the absence of findings.

[Filippone, supra, 304 N.J. Super. at 306.]

Plaintiff's remaining arguments that we did not specifically address lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed, in part; reversed and remanded, in part.

1 The order is silent as to the college costs of the son; however, plaintiff has not argued this point on appeal. We therefore conclude that he agrees with defendant's position that the same formula for the daughter's college costs should apply to the son's as well.

2 These cross-motions were heard by a different judge than the judge who heard plaintiff's order to show cause.

3 In his reply brief, plaintiff argues that defendant's request for 2003 tuition payments should have been denied under the equitable doctrine of laches. "'Laches is an equitable defense that may be interposed in the absence of the statute of limitations,' and is defined as 'an inexcusable delay in asserting a right'." Borough of Princeton v. Bd. of Chosen Freeholders, 169 N.J. 135, 157 (2001) (quoting Northwest Covenant Meal. Ctr. v. Fishman, 167 N.J. 123, 140 (2001)). Contrary to plaintiff's argument, defendant has raised the issue of college costs multiple times, including in 2004 when the consent order required plaintiff pay half. Moreover, plaintiff may not raise the doctrine of laches because he has unclean hands due to his violation of the 2004 consent order. See id. at 158.