CHARLES W. LEE v. CHIARA CHANDOHA

NOT FOR PUBLICATION WITHOUT THE
                       APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2651-16T2

CHARLES W. LEE,

        Plaintiff-Appellant,

v.

CHIARA CHANDOHA,

     Defendant-Respondent.
______________________________

              Submitted April 23, 2018 – Decided May 11, 2018

              Before Judges Sabatino and Rose.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Hunterdon
              County, Docket No. FM-10-0117-04.

              Damiano M. Fracasso, attorney for appellant.

              Respondent has not filed a brief.

PER CURIAM

        In this unopposed appeal, plaintiff Charles Lee, the father

of two unemancipated adult children enrolled in college, seeks

reversal of the Family Part's November 16, 2016 order denying his

request      to    eliminate   his   child   support    obligation     for   those

children.         The father asserts the two children reside with him and
not with their mother, defendant Chiara Chandoha, when they are

home from college.      Additionally, the father appeals the Family

Part's February 22, 2017 denial of his motion for reconsideration.

For the reasons that follow, we remand for an evidentiary hearing

to resolve the contested factual issues.

     The parties, who have been divorced since 2004, have three

children: a son born in October 1992, a middle child born in

November 1995, and a daughter born in June 1997.           The parties

agreed the oldest child should be emancipated because he has

graduated from college, and the trial court accordingly granted

that portion of the requested relief.

     Child support of $80 weekly, payable to the mother for the

two younger children, was established in a September 11, 2013

consent order.   In support of his present application for relief

from that support level, the father submitted his own certification

as well as affidavits from the middle child and the youngest child,

attesting that they do not reside with their mother when they are

home from college.      The motion judge declined to consider those

affidavits, even though both of those children are now above the

age of eighteen, because she found such involvement in their

parents'   litigation    "inappropriate   and   not   in   their   best

interests."



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     Meanwhile, the mother's opposing certification disputed the

pertinent facts.       The mother asserted she still has to expend

funds for the children, even though they are living away at college

for much of the year.        During the motion argument, however, her

attorney conceded that the middle child lives with the father when

he is not at college.     Nevertheless, the mother asserted that the

father's child support obligation for the youngest child is less

than it would be otherwise, because of the related child support

he has been paying for the middle child.         By her reasoning, if the

middle   child's   support    were    reduced   or    eliminated   from   the

calculus, then support for the youngest child would need to be

adjusted higher.

     The father contended that the children's college expenses are

all paid out of a trust, and that the mother does not have any

financial responsibility for them. He argued that she is therefore

receiving a windfall in child support.               The judge did order a

plenary hearing to allocate disputed college expenses, but the

parties resolved that particular issue and deemed it moot.                Thus

no plenary hearing on any subject was conducted.

     Certain well established principles guide our review. The

standard   for   the   modification    of   a   negotiated   child   support

agreement is one of changed circumstances.              Smith v. Smith, 
72 N.J. 350, 360 (1977); Jacoby v. Jacoby, 
427 N.J. Super. 109, 116,

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118-19 (App. Div. 2012).         This changed-circumstances standard

applies to all requests to modify child support, irrespective of

the kind of action in which support was initially ordered.               See,

e.g., W.S. v. X.Y., 
290 N.J. Super. 534, 540 (App. Div. 1996).

      Contested material factual matters relating to modification

generally need to be sorted out in a plenary hearing.               Conforti

v.   Guliadis,   
128 N.J.   318,   322-23   (1992)   (requiring    plenary

hearings   to    resolve   material    factual   disputes);   Tretola       v.

Tretola, 
389 N.J. Super. 15, 20 (App. Div. 2006) (requiring a

plenary hearing in a child support modification case).              See also

Fusco v. Fusco, 
186 N.J. Super. 321, 329 (App. Div. 1982) ("[I]f

the proper disposition of a matrimonial dispute requires a plenary

hearing, the dispute is by definition not subject to disposition

on the papers, with or without oral argument.").               In such a

proceeding, the judge will have a chance to assess the credibility

of the movant's assertions and the opposing party's counter-

assertions, as tested through the rigors of cross-examination and

any clarifying questioning by the court.

      We defer to the motion judge's discretion in declining to

consider the affidavits executed by the two children in support

of their father's motion.       Even so, the competing submissions of

the father and the mother about the children's true primary

residency when they are not at college suffice to create genuine

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factual issues.     A plenary hearing is necessary to resolve those

issues.

    At that hearing, the mother's actual position respecting the

middle child should be clarified or confirmed.         If, after the

hearing, the trial court concludes an elimination or adjustment

of the support is warranted, the court also shall consider the

appropriate effective date of such relief in compliance with


N.J.S.A. 7A:17-56.23a, and the propriety of any requested award

of reasonable trial and appellate counsel fees.

    Remanded      for   a   plenary   hearing.   We   do   not    retain

jurisdiction.




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