MICHAEL POWELL v. CATHERINE POWELL-BUCHANAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MICHAEL POWELL,

Plaintiff-Respondent,

v.

CATHERINE POWELL-BUCHANAN,

Defendant-Appellant.

October 18, 2013

 

Submitted September 17, 2013 Decided

 

Before Judges Alvarez and Ostrer.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-0824-01.

 

Catherine Powell-Buchanan, appellant pro se.

 

Robert A. Gleaner, attorney for respondent.

 

PER CURIAM

Defendant Catherine Powell-Buchanan, who is self-represented, appeals from a Family Part order dated November 16, 2012, denying her the following relief: 1) the "un-emancipation" of the parties' older daughter, born in 1990, and a plenary hearing as to child support; 2) contribution by plaintiff Michael Powell to the older daughter's college education; 3) custody of the parties' younger daughter, born in 1992, who had also previously been emancipated; 4) child support for the younger daughter; 5) compelling plaintiff to supply both children with health insurance to age twenty-six; and 6) compelling plaintiff to disclose information regarding the paternity of the younger daughter's child. The court granted plaintiff the relief he sought by way of cross-motion: that defendant pay him $2167.50 in attorney's fees and reimburse him for overpayments on child support of $2007.71, payable at the rate of $85 per week.1

Defendant is also self-represented on the appeal. For the reasons that follow, we vacate the portion of the court's order relative to child support for the older daughter, and direct that the court, after ninety days of discovery, conduct a plenary hearing. At that hearing, the court will determine whether the older daughter's academic status warrants entry of an order requiring plaintiff to pay child support, contribute to her college expenses, and contribute to certain obligations defendant incurred to assist the older daughter in funding her studies.

We affirm the court's refusal to: address the younger daughter's status as an emancipated child, order plaintiff to provide health insurance for the children to age twenty-six,2 and compel plaintiff to provide information regarding the paternity of the younger daughter's child. On appeal, defendant also seeks to compel DNA testing of the younger daughter's child to verify the identity of the father, relief not mentioned in the order being appealed. That matter is so lacking in merit as to not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Furthermore, we vacate the award of attorney's fees to plaintiff. No financial proofs were presented by either party that would have enabled reasoned analysis of the request. Moreover, the court did not make the necessary findings as required by Rule 5:3-5(c).

To summarize the factual and procedural history of this matter, the parties have two children who initially resided with defendant when the parties divorced in 2001 and entered into the PSA, which addressed the issue of child support, although several post-judgment applications have followed.

Relevant to the issues we address is plaintiff's 2012 motion to emancipate the older daughter, in which he alleged that she was employed full-time and was not enrolled in enough college courses to require him to continue to pay child support. Defendant opposed the application. She did not, however, supply proof of the older daughter's school enrollment, or her own growing indebtedness to fund the older daughter's education, until she unsuccessfully sought reconsideration immediately prior to this appeal.

As to the younger daughter, plaintiff obtained custody in June 2008. A disagreement with her resulted in him demanding in writing, on April 22, 2011, that she leave his home by June 1. In the letter, he advised his younger daughter that if she did not vacate the premises by that date, he would change the locks and move her belongings to a storage unit. The younger daughter and her child moved initially into an apartment, but, at some unspecified time, relocated to defendant's home. Defendant, since then, has been struggling to support and aid both children, including co-signing educational loans for the older daughter.

We generally defer to the Family Part's factual findings because of the court's "special expertise in matters related to the family" and its "superior ability to gauge the credibility of the witnesses who testif[ied] before it." Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). We do not, however, defer to a trial judge's "interpretation of the law and the legal consequences that flow from established facts," Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), including those related to the interpretation of a contract.

Because the judge who decided the issue of the older daughter's status vis- -vis plaintiff's obligation to contribute to her education, support, or both, ignored "applicable standards," we reverse and remand. See Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008). Furthermore, because the judge did not consider the relevant rule or statute with regard to the award of attorney's fees, we believe he abused his discretion in making the award and vacate that order. See R. 5:3-5(c).

The older daughter resides in an apartment with a roommate. She appears to be supporting herself, albeit through loans, although the record is not clear on this point. Those circumstances, alone, do not necessarily mean that plaintiff has no obligation towards his child's ongoing education. A child is emancipated "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). The analysis "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." Ibid. (internal quotation marks omitted).

Even after emancipation, a child can, under limited circumstances, return to a dependent status. Sakovits v. Sakovits, 178 N.J. Super. 623, 628 (App. Div. 1981), is enlightening on the subject. In that case, defendant wife sought contribution from plaintiff husband towards the parties' son's college education. Id. at 626. The son had been declared emancipated after graduating from high school, as he had no interest in continuing his studies, maintained his own residence, was continuously employed, and visited with his mother only on weekends. Ibid. When the son requested contribution from his parents towards a college education, we stated, among other things: "[I]n today's society . . . a brief hiatus between high school and college is becoming commonplace . . . . If we were to hold that the college education exception should not be extended to situations where the child had been declared emancipated, then the child would forever be estopped from seeking such contribution. . . ." Id. at 631. Ultimately, no contribution was required in that case because the lapse in time was considered too lengthy. Id. at 632.

In this case, where the hiatus may have resulted solely from the limited resources available to the older daughter, it would be particularly inequitable to fail to support her efforts. This is particularly true in light of defendant's asserted debt of $21,646.77, allegedly incurred to assist the older daughter in her education. If, after a plenary hearing, a judge concludes that the older daughter's limited enrollment was attributable to her inability to fund a full-time education, and that had defendant provided the proper information, plaintiff might have been compelled to contribute so the older daughter could have continued as a full-time student, the outcome might be very different.

In any event, consideration of the factors found in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982), and the child support statute are necessary for fair resolution of the dispute. See Gotlib, supra, 399 N.J. Super. at 309. Therefore, the matter is remanded for the court to determine, after review of the Newburgh factors, "whether and to what extent each of the parties should contribute to" the older daughter's college expenses. See Philipp v. Stahl, 344 N.J. Super. 262, 272-73 (App. Div. 2001), rev d on dissent on other grounds, 172 N.J. 293 (2002). Should the court determine that, because of the older daughter's educational status, she should no longer be considered an emancipated child, the issue of medical insurance and uninsured medical expenses should be simultaneously addressed.

Attorney fee "determinations by trial courts will be disturbed only on the rarest occasions, and then only because of a clear abuse of discretion." Rendine v. Pantzer, 141 N.J. 292, 317 (1995). Rule 5:3-5(c) specifies the factors that must be considered before such awards are made. Clark v. Clark, 359 N.J. Super. 562, 572 (App. Div.), certif. denied, 178 N.J. 30 (2003). These factors include the parties' financial circumstances, ability to pay, the reasonableness and good faith of their positions, and the results obtained. Clark, supra, 359 N.J. Super. at 572 (quoting R. 5:3-5(c)). Although not entirely clear from the record, it appears that the judge awarded fees because he considered defendant's application to be frivolous or harassing. He said:

[T]he Court has reviewed the . . . Affidavit of Service for this particular application, and the Court will . . . grant the application for $2,167. I'm satisfied that it's been demonstrated that it appears that Counsel has had numerous occasions to address the very same issues that had been ruled [on] by Judge Famular [and] Judge McBride. And that's just overbearing.

I'm satisfied that the work performed by Counsel with respect to this matter is appropriate, reasonable, and appropriate in light of the Counsel's experience and training.

 

We do not agree that this application was made in bad faith by this pro se defendant. The older daughter's desire to complete her college education may warrant contribution from plaintiff. Even though defendant had difficulty, for whatever reason, producing the necessary documentation to the court, we cannot agree that her repeated efforts were made in bad faith. This, notwithstanding the frustration and expense occasioned to plaintiff.

Furthermore, because the court did not make specific findings, we simply do not know if defendant submitted the information necessary for a fair determination to be made as to whether she had the ability to pay toward plaintiff's counsel fees. In any event, this mistaken exercise of discretion warrants reversal.

Affirmed in part, reversed in part, and remanded for further proceedings.

1 Defendant does not appeal the reimbursement provision of the order; hence we do not address the issue.

2 The parties' Property Settlement Agreement (PSA) provided:

Husband shall continue to maintain and keep in full force and effect for the benefit of the minor children medical insurance. In addition to the foregoing, Husband and Wife shall be responsible for the equal payment of one-half of all unreimbursed extraordinary medical and dental bills arising out of treatment rendered to the minor child.

 

However, the PSA's "Emancipation Event" places the responsibility on defendant: "[T]he Wife's obligation to provide medical coverage for the benefit of the 'unemancipated' child shall continue during the time of the child's enrollment in college . . . ."