Christine Avelino-Catabran v. Joseph A. Catabran

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4973-13T4

CHRISTINE AVELINO-CATABRAN,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
June 16, 2016
v. APPELLATE DIVISION

JOSEPH A. CATABRAN,

Defendant-Respondent.
____________________________________

Submitted December 8, 2015 – Decided June 16, 2016

Before Judges Fisher, Rothstadt, and
Currier.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Morris
County, Docket No. FM-14-791-02.

Newsome O'Donnell, L.L.C., attorneys for
appellant (Lynn Fontaine Newsome, of
counsel; Alyssa M. Clemente, on the brief).

Ann Crawshaw Coquin, attorney for
respondent.

The opinion of the court was delivered by

ROTHSTADT, J.A.D.

In this post-judgment dissolution matter, plaintiff

Christine Ewart, formerly known as Christine Avelino-Catabran,

appeals from the Family Part's May 12, 2014 order recalculating

child support and holding her responsible for half of the
parties' eldest daughter's college expenses. She also appeals

from the court's May 30, 2014 order that deemed the new child

support amount retroactive to October 25, 2012.1 Her primary

argument is that, when determining plaintiff's obligation for

college costs, the court improperly excluded from the child's

available financial aid a Federal Direct PLUS Loan (PLUS Loan)

secured by the parties. Plaintiff also contends that the court

improperly determined she should be responsible for fifty

percent of those costs. Finally, she challenges the portions of

the court's order that modified support, arguing the court

"erred in utilizing a mathematical formula to determine child

support" and in changing custody and parenting time without a

hearing.

Defendant Joseph A. Catabran disagrees and argues that the

court correctly excluded the PLUS Loan from the child's

contribution to college costs and properly required plaintiff to

be responsible for fifty percent of those expenses in accordance

with the parties' property settlement agreement (PSA). He

further contends that support was correctly calculated and that

not only did plaintiff fail to raise certain issues she now

1
This issue, however, has not been briefed, and we consider it
abandoned. See N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438
N.J. Super. 501, 505 n.2 (App. Div.), certif. denied, 222 N.J.
17 (2015).

2 A-4973-13T4
argues on appeal, but she also "failed to cooperate with

discovery[, and] withheld information from . . . [and] gave

false information to the trial court." Defendant avers that

plaintiff comes before this court with "unclean hands"

preventing relief being granted to her.

We have considered the parties' contentions in light of our

review of the record and the applicable legal principles. We

affirm the court's order as to college expenses, but vacate and

remand for recalculation of child support.

The salient facts developed in the motion record can be

summarized as follows. The parties were married on June 18,

1993, and their divorce was finalized on August 14, 2002. The

final judgment of divorce (JOD) incorporated the parties' PSA,

which addressed the custody and support of their two daughters —

Catherine, now twenty-one years old, and Isabelle, seventeen.

Pursuant to the PSA, the parties shared joint legal and

physical custody of the children, with the parent of primary

residence designated as plaintiff during the school year and

defendant during the summer. The PSA required defendant to pay

$137 per week to support both children, though the parties

apparently agreed to increase this obligation to $800 per month

in 2009.

3 A-4973-13T4
 The PSA also provided that the parties would be equally

responsible for the children's net college expenses — those

remaining after the children applied for financial assistance.

Specifically, it provides:

The minor children shall have an
obligation to apply for any and all
scholarships, student loans, grants and
financial aid that may be available to help
defray the cost of each child's attendance
at college. After deductions for
scholarships, student loans, grants and
financial aid, the parties agree to be
responsible for the net college educational
costs of the minor children. Net college
cost[s] will be split equally by both
parties.[2]

In June 2004, the parties agreed to change their custody

arrangement, eliminating alternating weekends such that the

children would live full-time with plaintiff during the school

year and with defendant during the summer. They changed the

custody arrangement again in May 2011, when plaintiff and her

new husband moved to Switzerland with the children. In order to

facilitate the move, defendant signed a letter stating plaintiff

had sole custody of the children "[f]or the duration of, and

subject to, their residing in Switzerland."

2
Notably, the last sentence was a handwritten addition to the
provision, initialed by the parties, that replaced stricken
language that stated "commensurate with their ability to pay at
the time."

4 A-4973-13T4
 After graduating from high school, Catherine decided to

attend New York University (NYU) beginning in the fall of 2012.

NYU's total cost of attendance was $62,768, but the school

offered her an extensive financial aid package, which included a

$12,720 scholarship, $3000 for work-study, and a total of $7900

in student loans. It also included $39,148 in PLUS Loans, which

the award letter defined as "the maximum amount . . . . [a]

parent may borrow." (emphasis added). Catherine accepted the

full amount of the scholarship, work-study, and student loans

available to her. In an email sent to plaintiff on June 21,

2012, defendant asked plaintiff, "how much Parent PLUS Loan

should we borrow?," and suggested they borrow $12,770 to cover

plaintiff's share of the balance owed for college.3 Plaintiff

responded by directing defendant to "Please borrow this money on

behalf of Catherine." Pursuant to this exchange, defendant

accepted $12,770 of the available PLUS Loan.

On October 25, 2012, defendant filed a motion seeking a

modification of child support to reflect a split-parenting

arrangement, an order requiring plaintiff to pay half of

Catherine's net college expenses, and judgment against plaintiff

3
According to defendant, plaintiff needed the loan because her
credit was bad. According to plaintiff, that loan was to be
repaid by Catherine.

5 A-4973-13T4
for the amounts due on the PLUS Loan and owed to NYU for the

Spring 2013 semester, among other relief. In response,

plaintiff asserted there were no funds owed by her for

Catherine's college costs because NYU provided Catherine enough

financial aid to cover the entire cost. The financial documents

submitted indicated plaintiff's gross income was approximately

$225,000 annually and defendant's $113,000, substantially more

than the approximately $73,000 they each were earning at the

time of the divorce.

On May 1, 2013, the Family Part entered an order, dated

April 26, 2013, granting in part and denying in part defendant's

request for contribution for Catherine's schooling, and granting

his request for a child support modification (May 1 order). The

order stated, "[t]he Court has determined that the [p]laintiff

shall make a contribution to the child's college expenses but

needs the parties to submit their financial documents in order

to determine how much that contribution should be." The order

directed them to submit pay stubs and tax returns for that

purpose and for calculating the parties' support obligations

moving forward.

In its appended statement of reasons, the court found that

Catherine's financial aid package did not cover the full cost of

attendance, that the PLUS Loans were available only to parents,

6 A-4973-13T4
and that defendant had established changed circumstances

warranting a support modification. It stated that, based upon

the parties' email exchanges, "[p]laintiff was well aware of the

minor child's financial aid package [and] the loans that the

[d]efendant was taking out to cover her share of the expenses."

It also found that, based on the circumstances and superior

employment opportunities offered to NYU graduates, the child

made a legitimate decision to attend NYU instead of a school

suggested by plaintiff. As to child support, the court found

that a change was warranted because the parties' "income[s]

ha[d] changed dramatically since [they] first entered into the

PSA."

On June 4, 2013, the parties moved for reconsideration and

clarification of the May 1 order.4 The court denied the parties'

respective motions on January 24, 2014,5 determining that their

4
In response to the May 1 order, both parties submitted
letters to the court requesting clarification of certain issues
raised by the order — namely, the method by which support would
be calculated and the extent of plaintiff's obligation to
contribute to Catherine's college expenses. When the court did
not respond to the parties' letters, they filed their respective
reconsideration motions.
5
This was actually the second order it entered. The court
signed an original order on August 15, 2013. However, the
parties did not receive a copy of this order and did not learn
of it until January 2014. Upon learning of the order, defendant
requested the court vacate the August order and enter an
identical order to protect the parties' rights to seek timely
(continued)

7 A-4973-13T4
motions were attempts "to re-argue issues that were already

decided," and were time-barred. Over the next five months, the

parties submitted multiple letters to the court with additional

information regarding their finances. In one submission,

plaintiff claimed she could not afford to pay for her daughter's

college and that she had filed for "Chapter 11" relief in

bankruptcy court in June 2013.

On May 12, 2014, the court ordered plaintiff to contribute

fifty percent of Catherine's net college expenses and defendant

to provide proof of such expenses. The court also modified the

parties' support obligations, ordering defendant to pay $186 per

week to plaintiff for Isabelle, and plaintiff to pay $281 per

week to defendant for Catherine, resulting in a net payment of

$95 per week to defendant.

In the accompanying statement of reasons, the court stated

it found plaintiff had sufficient resources to contribute to

Catherine's college expenses in accordance with the parties'

PSA. In support of its determination, the court considered the

factors established in Newburgh v. Arrigo, 88 N.J. 529, 545

(continued)
relief from the court's order. The court obliged, and entered
an order on January 24, 2014, recognizing that a clerical error
led to the original order not being forwarded to the parties and
"giv[ing] [the original order] an effective date of January 24,
2014."

8 A-4973-13T4
(1982), but relied upon the PSA's express requirement that the

parties contribute equally to their children's college expenses,

noting also that "both parents share[d] the goal of educating

their daughter." It concluded that, despite her pending

bankruptcy petition, which did not impact her support

obligation, plaintiff had sufficient resources to meet her

obligation under the PSA.

As to child support, the court noted that "[d]efendant

[was] seeking a modification of child support based on the

[p]arties' daughters['] living arrangements. Namely, Catherine

is in college, and Isabelle lives overseas in Switzerland." The

court found that "the living arrangements of the children ha[d]

changed significantly enough to warrant a corresponding change

in child support." It observed that Catherine lived with

roommates at college and "primarily visit[ed] [d]efendant during

her time off from school," and that Isabelle lived in

Switzerland with plaintiff and her husband "and does not have

visitation with her father."

Based on those living arrangements, the court determined

the parties' new child support obligations by relying on a

combination of the court's Child Support Guidelines

(guidelines), R. 5:6A, and defendant's proposal for support,

9 A-4973-13T4
without setting forth the details of the proposal in the court's

decision. The court stated:

Defendant has submitted a well thought out,
and clearly articulated plan for determining
child support. His calculations take into
consideration the incomes of the [p]arties
including bonuses, income attributable to
the [p]arties, conversion of Swiss [f]rancs
to American [d]ollars, a 40% reduction in
child support for Catherine based on her
room and board taken into consideration
above, medical insurance, as well as a 4%
increase in child support over the
guidelines to take into consideration the
[p]laintiff's income being over the
guidelines threshold for calculation. He
has calculated the child support from him to
Isabelle as $186 per week or $806 per month,
and to Catherine from [p]laintiff of $281.00
per week or $1,218 per month. His
calculations are not off the mark. The
Court accepts the calculations and the
[p]arties shall pay accordingly. This
results in a payment of $95 to [d]efendant
from [p]laintiff weekly.

The court attached to its statement of reasons a "Child Support

Guidelines-Sole Parenting Worksheet" for two children in a

"split-parenting situation."6

6
"The 'split-parenting' provisions . . . deal with a multi-
child family in which one parent has custody of one or more
children, and the other parent has custody of other children."
Benisch v. Benisch, 347 N.J. Super. 393, 400 (App. Div. 2002);
see also Child Support Guidelines, Pressler & Verniero, Current
N.J. Court Rules, Appendix IX-A, ¶ 15, to R. 5:6A at
www.gannlaw.com (2016) [hereinafter Guidelines].

10 A-4973-13T4
 As noted, the court later supplemented the order to clarify

that the support modification was retroactive to October 25,

2012, the date of defendant's initial motion.

After the court's entry of its orders, plaintiff filed this

appeal.

We begin by recognizing that our review of the Family

Part's determinations regarding child support is limited. We

"do not disturb the factual findings and legal 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." Rova Farms Resort, Inc. v. Inv'rs Ins.

Co. of Am., 65 N.J. 474, 484 (1974). Also, "[b]ecause 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).

Accordingly, "[t]he general rule is that findings by a trial

court are binding on appeal when supported by adequate,

substantial, credible evidence." Gnall v. Gnall, 222 N.J. 414,

428 (2015); see also Rova Farms, supra, 65 N.J. at 483-84.

However, we confer no deference to a trial court's

interpretation of the law, which we review de novo to determine

whether the judge correctly adhered to applicable legal

11 A-4973-13T4
standards. See Manalapan Realty, L.P. v. Twp. Comm., 140 N.J.

366, 378 (1995). Reversal is reserved for only those

circumstances in which we determine the factual findings and

legal conclusions of the trial judge went "so wide of the mark

that a mistake must have been made." N.J. Div. of Youth &

Family Servs. v. M.M., 189 N.J. 261, 279 (2007).

"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 v.

Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012); 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,

supra, 427 N.J. Super. at 116 (quoting Foust v. Glaser, 340 N.J.

Super. 312, 315-16 (App. Div. 2001)).

The Family Part's "substantial discretion" in determining

child support applies equally to compelling a parent to

contribute to their child's college costs. 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

12 A-4973-13T4
the judge has not abused his or her discretion. Gac v. Gac, 186

N.J. 535, 547 (2006); Cesare, supra, 154 N.J. at 411-12.

Applying these parameters to our review, we first consider

plaintiff's arguments regarding the motion judge's conclusion

that she was obligated to pay fifty percent of her child's

college costs in accordance with the PSA, rather than

determining the extent of her obligation using the factors set

forth in Newburgh,7 and that the PLUS Loan was not part of the

7
Newburgh provides for the balancing of the following factors:

(1) whether the parent, if still living with
the child, would have contributed toward the
costs of the requested higher education; (2)
the effect of the background, values and
goals of the parent on the reasonableness of
the expectation of the child for higher
education; (3) the amount of the
contribution sought by the child . . . ; (4)
the ability of the parent to pay that cost;
(5) the relationship of the requested
contribution to the kind of school or course
of study sought by the child; (6) the
financial resources of both parents; (7) the
commitment to and aptitude of the child for
the requested education; (8) the financial
resources of the child . . . ; (9) the
ability of the child to earn income during
the school year or on vacation; (10) the
availability of financial aid in the form of
college grants and loans; (11) the child's
relationship to the paying parent, including
mutual affection and shared goals as well as
responsiveness to parental advice and
guidance; and (12) the relationship of the
education requested to any prior training
(continued)

13 A-4973-13T4
child's independent financial aid resources, relying upon NYU's

inclusion of PLUS Loans as a type of financial aid available to

its students and the distinction made in the PSA between

"student loans" and "financial aid." She warns that the court's

finding that PLUS Loans are not considered financial aid "will

undoubtedly have wide sweeping public policy implications,"

namely by "modify[ing] the intent of any Property Settlement

Agreement containing this language." We find her arguments to

be without merit.

The trial court correctly enforced the provisions of the

PSA that obligated plaintiff to be equally responsible for the

(continued)
and to the overall long-range goals of the
child.

[Newburgh, supra, 88 N.J. at 545.]

Notably, defendant correctly argues that plaintiff did not
raise these factors to the motion judge as being applicable to
the parties' dispute, contending instead that the language of
the PSA supported her position. She now asserts them on appeal
because they were considered by the motion judge, who, after
identifying the factors in his written decision, relied upon the
parties' PSA in ordering plaintiff to contribute towards her
daughter's education. Under these circumstances we choose to
consider and clarify the issue rather than, as defendant argues,
exercise our right to "decline to consider questions or issues
not properly presented to the trial court when an opportunity
for such a presentation is available unless the questions so
raised on appeal go to the jurisdiction of the trial court or
concern matters of great public interest." Selective Ins. Co.
of Am. v. Rothman, 208 N.J. 580, 586 (2012) (quoting Nieder v.
Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).

14 A-4973-13T4
children's college expenses. Absent "compelling reasons to

depart from the clear, unambiguous, and mutually understood

terms of the PSA," a court is generally bound to enforce the

terms of a PSA. Quinn v. Quinn, ___ N.J. ___, ___ (2016) (slip

op. at 36) (enforcing termination of alimony consistent with the

parties' agreement regarding cohabitation). Consistent with New

Jersey's "strong public policy favoring stability of

arrangements in matrimonial matters," id. at ___ (slip op. at

19) (quoting Konzelman v. Konzelman, 158 N.J. 185, 193 (1999)),

where matters in dispute in a post-judgment matrimonial motion

are addressed in a PSA, courts will not "unnecessarily or

lightly disturb[]" the agreement so long as it is fair and

equitable. Id. at ___ (slip op. at 20) (quoting Konzelman,

supra, 158 N.J. at 193-94); see also Pacifico v. Pacifico, 190

N.J. 258, 266 (2007) (a matrimonial agreement is enforceable so

long as it is not inequitable); Dolce v. Dolce, 383 N.J. Super.

11, 20 (App. Div. 2006) (PSAs are entitled to "'considerable

weight with respect to their validity and enforceability' in

equity, provided they are fair and just." (quoting Petersen v.

Petersen, 85 N.J. 638, 642 (1981))). If the meaning of the

agreement is in dispute, "[t]he court's role is to consider what

is written in the context of the circumstances at the time of

the drafting and to apply a rational meaning in keeping with the

15 A-4973-13T4
'expressed general purpose.'" Pacifico, supra, 190 N.J. at 266

(2007) (quoting Atl. N. Airlines v. Schwimmer, 12 N.J. 293, 302

(1953)).

However, if circumstances have changed in such a way that

strict enforcement of the agreement would no longer be

equitable, a court remains free to alter prior arrangements.

See Quinn, supra, ___ N.J. ___ (slip op. at 25-26); see also

Lepis v. Lepis, 83 N.J. 139, 146-48 (1980). Similarly, "[a]

narrow exception to the general rule of enforcing settlement

agreements as the parties intended is the need to reform a

settlement agreement due to 'unconscionability, fraud, or

overreaching in the negotiations of the settlement.'" Quinn,

supra, ___ N.J. at ___ (slip op. at 23) (quoting Miller v.

Miller, 160 N.J. 408, 419 (1999)).

Absent inequity or unanticipated changed circumstances not

addressed by the agreement, a court is obligated to enforce its

terms when it was "entered [into] by fully informed parties,

represented by independent counsel, and without any evidence of

overreaching, fraud, or coercion." Id. at ___ (slip op. at 35).

Otherwise, "the court eviscerates the certitude the parties

thought they had secured, and in the long run undermines this

Court's preference for settlement of all, including marital,

disputes." Id. at ___ (slip op. at 36).

16 A-4973-13T4
 A court's obligation to enforce marital settlement

agreements applies to provisions regarding the parents'

obligation to pay for their children's college expenses.

Although parents generally are not obligated to support a child

who has attained the age of majority, "in appropriate

circumstances, the privilege of parenthood carries with it the

duty to assure a necessary education for children." Newburgh,

supra, 88 N.J. at 543. "In general, financially capable parents

should contribute to the higher education of children who are

qualified students." Id. at 544.

Accordingly, where parties to a divorce have reached an

agreement regarding children attending college and how those

college expenses should be divided, and no showing has been made

that the agreement should be vacated or modified, the Family

Part need not apply all twelve factors pertinent to college

expenses as identified in Newburgh, supra, 88 N.J. at 545.

Rather, the court should enforce the agreement as written.8 See

Quinn, supra, ___ N.J. at ___ (slip op. at 35-36). Cf. Gac,

supra, 186 N.J. at 544-45 (discussing the determination of

college contribution in the absence of a PSA or JOD addressing

8
In the absence of an agreement by the parties regarding the
specific division of college costs, courts should balance the
factors set forth in Newburgh and the statutory criteria of
N.J.S.A. 2A:34-23(a), along with any other factors the court
deems relevant to a fair allocation of expenses.

17 A-4973-13T4
the parents' obligations); Newburgh, supra, 88 N.J. at 534

(requiring consideration of factors where there was no agreement

regarding college expenses); Gotlib, supra, 399 N.J. Super. at

307-08 (finding Family Part erred in failing to consider factors

where JOD provided that college expenses would be divided "in

accordance with appropriate legal standards"); Moss v. Nedas,

289 N.J. Super. 352, 354, 360 (App. Div. 1996) (approving

balancing of factors where PSA allocated costs "in proportion to

[the parents'] ability to contribute").9

Here, the language of the parties' PSA clearly provides

that "[n]et college cost[s] will be split equally by both

parties," and the court considered their abilities to afford

that contribution before ordering plaintiff to contribute

equally, thereby ensuring there would be no undue burden on

either parent. Given that plaintiff's income was at least two

hundred thousand dollars per year, it cannot be said that the

court's finding that she has sufficient resources to contribute

equally, despite her pending bankruptcy petition, is "manifestly

unsupported by or inconsistent with the competent, relevant and

9
In Moss, the PSA stated that the parents would pay college
expenses "in proportion to their ability to contribute," and the
mother and the child had concealed important facts about college
attendance from the father and even from the Family Part as the
dispute was being litigated. Moss, supra, 289 N.J. Super. at
354-55.

18 A-4973-13T4
reasonably credible evidence." Gnall, supra, 222 N.J. at 414

(quoting Cesare, supra, 154 N.J. at 412).

We are not persuaded otherwise by plaintiff's contention

that she is not responsible for payment of the PLUS Loan she

authorized defendant to secure "for Catherine." Catherine is

not eligible to apply for or receive PLUS Loans herself. See 20

U.S.C.A. § 1078-2(a) (defining eligibility for PLUS Loans);

Office of Fed. Student Aid, U.S. Dep't of Ed., Direct PLUS Loan

Basics for Parents 8 (2015). Therefore, the PLUS Loans cannot

be considered a student loan or financial aid available to

Catherine for which she had to apply, as contemplated by the

parties. The court correctly determined that plaintiff

authorized the loan and she was responsible for same.

Turning to child support, we initially reject as being

without merit plaintiff's contention that the court improperly

determined, without a hearing, that defendant established a

change in circumstances warranting modification of support. We

afford deference to the family court's determination regarding

the need for a support hearing and review them for an abuse of

discretion. Jacoby, supra, 427 N.J. Super. at 123. A hearing

is required only "when the submissions show there is a genuine

and substantial factual dispute . . . , and the trial judge

determines that a plenary hearing is necessary to resolve the

19 A-4973-13T4
factual dispute." Hand v. Hand, 391 N.J. Super. 102, 105 (App.

Div. 2007); see also Jacoby, supra, 427 N.J. Super. at 123.

The court here correctly determined from the parties'

submissions that Catherine's living at college and spending her

time off with her father, rather than living in Switzerland with

her mother, was a change in circumstances warranting a

modification in support. See Jacoby, supra, 427 N.J. Super. at

113. We reject plaintiff's contention that by recognizing the

children's current living arrangements the court changed

custody. We also agree with the court's undisputed finding that

the parties' incomes had substantially changed since their

divorce. "A change in circumstances warranting modification of

support may . . . result from an alteration in the fortunes of

either party." Stamberg v. Stamberg, 302 N.J. Super. 35, 42

(App. Div. 1997). A supporting spouse "is as much entitled to a

reconsideration of child support where there has been a

significant change for the better in the circumstances of the

dependent spouse as where there has been a significant change

for the worse in the [supporting] spouse's own circumstances."

Ibid.

Plaintiff also contends the court erred in modifying the

parties' child support obligations, as it used an incorrect

method to calculate the award because it considered the factors

20 A-4973-13T4
set forth in the guidelines rather than those set forth in

N.J.S.A. 2A:34-23(a),10 as required by Jacoby. Jacoby, supra,

427 N.J. Super. at 122. Defendant responds, arguing plaintiff

cannot claim error in the court's calculation, as she neither

criticized his proposed formula nor provided any alternative

method of calculation for the court to apply. We reject

defendant's argument and agree with plaintiff.

10
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;

(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.

[N.J.S.A. 2A:34-23(a).]

21 A-4973-13T4
 We conclude the motion judge failed to satisfy his

obligations to properly calculate the child support award and to

issue a clear statement of his reasons for the court's award.

The court's reliance on defendant's use of the guidelines for

calculating child support and its incorporation by reference of

defendant's calculations were both improper and warrant

reversal.

When applicable, the guidelines must be used to calculate

child support awards. R. 5:6A; see also Guidelines, supra,

Appendix IX-A. However, the support amount provided for by the

guidelines may be "modified or disregarded by the court" upon a

showing of good cause. R. 5:6A; see also Guidelines, supra,

Appendix IX-A, ¶ 2. All support orders, even those relying upon

a strict application of the guidelines, "must be based on the

evidence and supported by a statement of reasons." Pressler &

Verniero, supra, comment 1.2 on R. 5:6A.

If a court determines deviation from the guidelines is

appropriate, it must nevertheless calculate the guidelines-based

support award and state the specific findings justifying its

deviation therefrom — specifically, why deviation is in the best

interests of the child. R. 5:6A; see also Guidelines, supra,

Appendix IX-A, ¶ 21. Thus, a court must follow this procedure

when deviating from the guidelines to fix support in accordance

22 A-4973-13T4
with an agreement by the parties. See Guidelines, supra,

Appendix IX-A, ¶ 22.

When a trial court issues reasons for its decision, it

"must state clearly [its] factual findings and correlate them

with relevant legal conclusions, so that parties and the

appellate courts [are] informed of the rationale underlying

th[ose] conclusion[s]." Monte v. Monte, 212 N.J. Super. 557,

565 (App. Div. 1986). The trial court does not discharge that

function simply by recounting the parties' conflicting

assertions and then stating a legal conclusion, or, as here,

incorporating by reference one of the parties' arguments. Also,

a court cannot simply attach a guidelines worksheet in lieu of

providing a statement of reasons. Fodero v. Fodero, 355 N.J.

Super. 168, 170 (App. Div. 2002).

When "faced with the question of setting child support for

college students living away from home," however, the guidelines

are inapplicable and the court must determine support based on

the factors set forth in N.J.S.A. 2A:34-23(a). Jacoby, supra,

427 N.J. Super. at 113; see also Guidelines, Appendix IX-A ¶ 18.

Reliance exclusively upon the guidelines in these situations

constitutes reversible error. Jacoby, supra, 427 N.J. Super. at

113.

23 A-4973-13T4
 Here, the court was required to consider the factors set

forth in N.J.S.A. 2A:34-23(a) when calculating support for

Catherine, as she was a college student living away from home.

See Jacoby, supra, 427 N.J. Super. at 113. With respect to the

parties' younger daughter, Isabelle, the court was required to

apply the guidelines and explain any deviations therefrom. See

R. 5:6A. The court did neither. Instead, the court relied upon

defendant's "well thought out, and clearly articulated plan for

determining child support," and accepted defendant's support

calculations after determining they were "not off the mark."

The court's statement regarding its abdication to defendant of

its obligation to calculate support did not satisfy its

obligation to provide a statement of reasons for its decision.

See R. 1:7-4.

The court's reliance on defendant's proposed calculations

for Catherine's support was also improper because the relied-

upon calculation was based on the guidelines. R. 5:6A. As we

stated in Jacoby,

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:34-23a.
Resort to the [guidelines] to make support
calculations for college students living
away from home is error.

24 A-4973-13T4
 [Jacoby, supra, 427 N.J. Super. at 113
(citation omitted).]

Finally, defendant's argument that plaintiff cannot

challenge the court's method of calculation for the first time

on appeal is without merit, as the court's support calculation

was plainly inconsistent with established law. See Nieder,

supra, 62 N.J. at 235; Jacoby, supra, 427 N.J. Super. at 116.

In sum, due to the court's failure to analyze the factors

set forth in N.J.S.A. 2A:34-23(a) when calculating Catherine's

support, and to properly calculate Isabelle's award under the

guidelines and explain any deviation therefrom, we conclude the

court abused its discretion by calculating the support award in

a manner inconsistent with established law, and reverse the

court's order modifying support. We remand for determination of

child support anew.

In light of our determination, we need not reach the

parties' remaining arguments.

Affirmed in part; reversed and remanded for calculation of

child support and the issuance of a statement of reasons

consistent with this opinion. We do not retain jurisdiction.

25 A-4973-13T4