VALERIE L. COLELLA v. HARRY C. COLELLA, JR
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0091-16T1
VALERIE L. COLELLA,
Plaintiff-Appellant/
Cross-Respondent,
v.
HARRY C. COLELLA, JR.,
Defendant-Respondent/
Cross-Appellant.
___________________________
Argued January 24, 2018 – Decided March 8, 2018
Before Judges Currier and Geiger.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Burlington
County, Docket No. FM-03-0335-02.
Michael P. Sawka argued the cause for
appellant/cross respondent.
Thomas J. Hurley argued the cause for
respondent/cross appellant.
PER CURIAM
Plaintiff Valerie L. Colella appeals from a July 28, 2016
order, terminating child support, setting college contribution
expenses, and reducing defendant Harry C. Colella's life insurance
requirement. For the reasons that follow, we affirm in part and
reverse and remand in part.
We derive the following facts from the record. The parties
were married on October 8, 1988, and divorced on May 13, 2003.
Two daughters were born of the marriage, Courtney, age twenty-
five, and Alexis, age nineteen. The May 13, 2003 dual final
judgment of divorce (FJOD) incorporated the settlement terms
reached by the parties, including custody, parenting time, child
support, and life insurance. The parties agreed to joint legal
custody of their then minor children with plaintiff designated as
the parent of primary residence and defendant designated as the
parent of alternate residence. Additionally, defendant agreed to
pay plaintiff child support of $187 per week and to maintain
$400,000 in life insurance, naming the minor children as
beneficiaries, with the life insurance "allocated equally to each
of the children."
A March 23, 2012 order held plaintiff responsible for twenty-
eight percent of Courtney's college tuition and expenses,
defendant responsible for the remaining seventy-two percent, and
modified child support to $276 per week for Alexis because Courtney
was attending college away from home. Through cost of living
adjustments, child support increased to $287 per week as of July
16, 2016.
2 A-0091-16T1
Notably, Courtney was emancipated in 2012, has since
graduated from college, and is now a nurse. Alexis matriculated
at West Chester University where she now lives during the academic
year. Prior to starting college, Alexis resided with her mother
who has been the parent of primary residence for most of her life.
On June 8, 2016, defendant filed a motion seeking, in relevant
part, to: (1) eliminate or substantially reduce child support for
Alexis based on her matriculation at college and his satisfaction
of Jacoby1 expenses; (2) require plaintiff to pay a portion of
college expenses for Alexis; (3) take into consideration
defendant’s satisfaction of Prosper loans in the amount of $1841
per month for Courtney when calculating child support and college
expense payments for Alexis; and (4) award him counsel fees and
costs.
In his accompanying certification, defendant outlined Jacoby
expenses he pays on behalf of Alexis "without judicial
intervention," including college-related costs, auto repair, car
insurance, cell phone, and medical expense payments. Defendant
also alleged he signed Prosper loans, co-signed by Courtney, in
the amount of $33,000, in an effort to consolidate debt he incurred
contributing to Courtney’s college education.
1
Jacoby v. Jacoby,
427 N.J. Super. 109 (App. Div. 2012).
3 A-0091-16T1
On June 29, 2016, plaintiff filed a cross-motion for an order:
(1) denying defendant’s motion in its entirety; (2) postponing the
matter until defendant submitted an updated case information
statement (CIS); (3) recalculating child support for Alexis; (4)
requiring both parties to contribute to college tuition in
accordance with the twelve Newburgh2 factors; (5) adjusting medical
expenses based on an income ratio; and (6) requiring defendant to
provide proof of the $400,000 life insurance policy. Plaintiff
also questioned the Prosper loans, claiming Courtney indicated no
knowledge of the loans.
During oral argument, defendant contended he paid $17,000
annually in Jacoby expenses, including the car insurance, cell
phone, computer, and "all of those other expenses," for the
parties’ daughter. Defendant argued his child support obligation
should be reduced and his contribution should be made to Alexis
directly rather than to plaintiff.
Plaintiff contended Alexis would be spending over forty
percent of the year at home with her. This calculation was based
on West Chester University's academic calendar, summer vacation,
and overnights on weekends.
2
Newburgh v. Arrigo,
88 N.J. 529 (1982).
4 A-0091-16T1
Plaintiff argued the court miscalculated the child support
and college expense contribution, contending defendant claimed an
annual income of $213,000, yet his 2015 tax returns revealed a
gross income of $226,000. Plaintiff further alleged the defendant
received a raise and bonus in the first half of 2016, and earned
additional income performing in a band. Finally, plaintiff argued
her monthly income was overstated by failing to account for
deductions. She claimed her monthly expenses exceeded her net
income.
The trial court terminated child support for Alexis effective
June 10, 2016, due to her residing on campus while attending
college without conducting an analysis of the factors set forth
in
N.J.S.A. 2A:34-23(a). Instead, the court took into account
defendant's alleged "satisfaction of the Jacoby expenses as
outlined in his [c]ertification."
With regard to college expense contribution, the court
considered the twelve Newburgh factors, the cost of West Chester
University at $37,554 per year, and the $5500 student loan Alexis
obtained. Calculating net tuition expenses at $16,027 per
semester, the court reasoned:
With these factors in mind, and in light
of the parties’ Case Information Statements',
the [c]ourt finds it appropriate to compel the
parties to apportion the cost of Alexis’
college tuition and expenses on a percentage
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of income basis, after all loans, grants,
scholarships and financial aid packages
available are applied. The [c]ourt notes that
for Courtney, the parties’ first child, the
[c]ourt previously ordered that, pursuant to
the child support guidelines, [p]laintiff was
responsible for 28% of Courtney’s college
tuition and expenses and [d]efendant was
responsible for 72% of same for Freshman year
and going forward. Accordingly, for Alexis
the [c]ourt finds [p]laintiff’s 2015 income
is approximately $80,000.00 and [d]efendant’s
2015 income is approximately $214,000. Based
upon these figures and the facts found by the
[c]ourt as set forth above, [p]laintiff shall
be responsible for 27% of the college costs
and tuition for Alexis and Defendant shall be
responsible for 73% of the college costs and
tuition for Alexis.
On July 28, 2016, the court issued an order: (1) terminating
child support for Alexis effective June 10, 2016; (2) requiring
plaintiff to contribute twenty-seven percent and defendant
seventy-three percent of the college costs and tuition for Alexis;
(3) granting defendant’s request that his satisfaction of the
Prosper loans for Courtney be considered when calculating college
contribution for Alexis; (4) granting defendant's request to
reduce his life insurance requirement due to Courtney's
emancipation; (5) requiring defendant to be responsible for
seventy-three percent of Alexis's unreimbursed medical expenses
and plaintiff to be responsible for the remaining twenty-seven
percent; (6) denying the parties' respective applications for an
award of counsel fees; and (7) directing probation to modify its
6 A-0091-16T1
records to reflect Courtney's emancipation effective June 10,
2016. This appeal followed.
On appeal, plaintiff raises the following arguments: (1) the
trial court erred by terminating child support without considering
all material facts, including the parties' actual income, number
of overnights Alexis spends at plaintiff's residence, and the
statutory factors under
N.J.S.A. 2A:34-23(a); (2) the trial court
erred by reducing defendant's life insurance obligation; and (3)
this matter should be assigned to a different judge on remand.
Defendant filed a notice of cross-appeal regarding the denial of
his application for an award of counsel fees by the trial court
and an award of counsel fees on appeal.3
We begin by recognizing our review of the Family Part's
determinations regarding child support is limited. Avelino-
Catabran v. Catabran,
445 N.J. Super. 574, 587 (App. Div. 2016).
"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). "We 'do not disturb the factual findings and legal
3
We conclude defendant abandoned his cross-appeal because he
failed to brief any argument relating to an award of counsel fees.
See Zavodnick v. Leven,
340 N.J. Super. 94, 103 (App. Div. 2001)
(indicating that the failure to present an argument relating to
an appeal renders that appeal "abandoned").
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conclusions of the [motion] judge unless we are convinced that
they are so manifestly unsupported by or inconsistent with the
competent, relevant and reasonably credible evidence as to offend
the interests of justice.'" Catabran,
445 N.J. Super. at 587
(alteration in original) (quoting Rova Farms Resort, Inc. v. Inv'rs
Ins. Co. of Am.,
65 N.J. 474, 484 (1974)). While deference is
accorded to the trial court as to factfinding, its "legal
conclusions, and the application of those conclusions to the facts,
are subject to our plenary review." Reese v. Weis,
430 N.J. Super.
552, 568 (App. Div. 2013) (citing Manalapan Realty, LP v. Twp.
Comm. of Manalapan,
140 N.J. 366, 378 (1995)).
"When reviewing decisions granting or denying applications
to modify child support, we examine whether, given the facts, the
trial judge abused his or her discretion." Jacoby,
427 N.J. Super.
at 116 (citing Larbig v. Larbig,
384 N.J. Super. 17, 21 (App. Div.
2006); Loro v. Del Colliano,
354 N.J. Super. 212, 220 (App. Div.
2002)); see also J.B. v. W.B.,
215 N.J. 305, 325-26 (2013). "If
consistent with the law, such an award will not be disturbed unless
it is manifestly unreasonable, arbitrary, or clearly contrary to
reason or to other evidence, or the result of whim or caprice."
Jacoby,
427 N.J. Super. at 116 (quoting Foust v. Glaser,
340 N.J.
Super. 312, 315-16 (App. Div. 2001)).
8 A-0091-16T1
The Family Part's "substantial discretion" in determining
child support applies equally to compelling a parent to contribute
to their child's college costs. Catabran,
445 N.J. Super. at 588
(citing Gotlib v. Gotlib,
399 N.J. Super. 295, 308 (App. Div.
2008)). We must accept the Family Part's determination concerning
a parent's obligation to contribute toward college tuition
provided the factual findings are supported by substantial
credible evidence in the record and the judge has not abused his
or her discretion. Ibid. (citing Gac v. Gac,
186 N.J. 535, 547
(2006); Cesare,
154 N.J. at 411-12).
We are asked to review whether child support should be
terminated when a child resides on campus while attending college.
Plaintiff claims the trial court erred by terminating child support
for Alexis solely because she was living on campus while attending
college. Plaintiff contends the trial court failed to assess all
applicable facts and weigh the factors set forth in
N.J.S.A. 2A:34-
23(a). Plaintiff further argues the court's failure to consider
discrepancies in the parties' financial information amounts to
plain error, mandating reversal and remand.
A "child's attendance at college is a change in circumstances
warranting review of the child support amount. However, there is
no presumption that a child's required financial support lessens
because he or she attends college." Jacoby, 427 N.J. Super. at
9 A-0091-16T1
113. As we recognized in Jacoby, "[t]he payment of college costs
differs from the payment of child support for a college student."
Id. at 121. Although child support needs lessen in certain
respects, such as room and board, which are college costs, other
necessary expenses may remain the same or actually increase when
a child goes to college. Ibid. These necessary expenses typically
include: transportation, furniture, clothing, linens and bedding,
telephone, supplies, sundries, toiletries, insurance,
entertainment, and spending money. Ibid. The student's ability
to contribute to those expenses must also be considered. Id. at
122. We have also recognized "the possible continued need to
maintain a residence for a child who returns home from college
during school breaks and vacations." Id. at 121 (citing Hudson
v. Hudson,
315 N.J. Super. 577, 585 (App. Div. 1998)).
Because child support determinations in this context are
fact-sensitive, "courts faced with the question of setting child
support for college students living away from home must assess all
applicable facts and circumstances, weighing the factors set forth
in N.J.S.A. 2A:34-23(a)." Id. at 113.
N.J.S.A. 2A:34-23(a) requires the court to consider:
(1) Needs of the child;
(2) Standard of living and economic
circumstances of each parent;
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(3) All sources of income and assets of each
parent;
(4) Earning ability of each parent . . . ;
(5) Need and capacity of the child for
education, including higher education;
(6) Age and health of the child and each
parent;
(7) Income, assets and earning ability of the
child;
(8) Responsibility of the parents for the
court-ordered support of others;
(9) Reasonable debts and liabilities of each
child and parent; and
(10) Any other factors the court may deem
relevant.
In rendering the decision to terminate child support for
Alexis, the trial court erred by basing its decision exclusively
on the Jacoby expenses allegedly paid by defendant without
assessing the expenses incurred by plaintiff and weighing the
statutory factors. Accordingly, we reverse the order terminating
child support and remand for further proceedings. On remand, the
calculation of child support for Alexis must be based on an
evaluation of the factors enumerated in
N.J.S.A. 2A:34-23(a) in
light of the facts and circumstances presented. The evaluation
should include consideration of the costs associated with
maintaining a residence for Alexis during school breaks and
11 A-0091-16T1
vacations. See Hudson,
315 N.J. Super. at 585. It should also
include consideration of the aforementioned "child support
expenses [which] remain even when a child heads to college."
Jacoby,
427 N.J. Super. at 121. We defer to the trial judge to
determine whether a plenary hearing must be conducted.
Plaintiff also contends the trial court erred in calculating
the college expense contribution responsibility of each party.
Applying our deferential review standard, we conclude plaintiff's
challenges to the trial court's decision lack merit. The trial
court appropriately considered the Newburgh factors, including the
parties' respective incomes and budgets. The court's analysis and
findings are supported by the record. We discern no abuse of
discretion and affirm the college contribution ruling.
We next address plaintiff's argument the trial court erred
by reducing defendant's life insurance requirement from $400,000
to $200,000. We discern no abuse of discretion. The FJOD requires
defendant "to maintain $400,000.00 in life insurance naming the
minor children as beneficiary." It further provides: "This life
insurance shall be allocated equally to each of the children."
Courtney has finished college, is employed as a nurse, and is
emancipated. Consequently, there is no need for defendant to
maintain life insurance as to Courtney. Accordingly, the trial
court properly reduced defendant's life insurance requirement by
12 A-0091-16T1
one-half since the life insurance is "allocated equally" to each
child.
Finally, we address plaintiff's argument that a different
judge should be assigned on remand to preserve the appearance of
a fair and unprejudiced hearing. Plaintiff contends a fresh
judicial examination is warranted because the judge did not
question the validity of defendant's financial statements.
Plaintiff also expresses concern over the judge's potential
commitment to his prior findings. We are unpersuaded by this
argument. The judge did not conduct a testimonial plenary hearing,
weigh the credibility of witnesses, or make findings about a
party's intent. Therefore, we find no basis to direct that on
remand the matter be assigned to a different judge. See Brown v.
Brown,
348 N.J. Super. 466, 493 (App. Div. 2002).
Affirmed in part, reversed and remanded in part. We do not
retain jurisdiction.
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