MELODY ANN TEKTAS VS. SALVATORE COVINO(FM-15-0680-01, OCEAN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4180-15T4

MELODY ANN TEKTAS
f/k/a MELODY ANN COVINO,

Plaintiff-Respondent,

v.

SALVATORE COVINO,

Defendant-Appellant.

_______________________________

Submitted October 25, 2017 – Decided December 1, 2017

Before Judges Alvarez and Geiger.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County,
Docket No. FM-15-0680-01.

Steven J. Sico, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Defendant Salvatore Covino appeals from the April 25, 2016

order denying his post-judgment motion and granting plaintiff

Melody Ann Tektas' cross-motion in part. After a careful review

of the facts and applicable legal principles, we affirm.
 Plaintiff and defendant were married on December 10, 1994,

and had two sons, Brett and Brandon Covino. The parties separated

on October 24, 2000. Plaintiff filed for divorce on November 13,

2000. On December 10, 2001, the parties entered into a

comprehensive property settlement agreement (PSA). They were

divorced in December 2001.

Defendant retired as a lieutenant from the Middlesex County

Sheriff's Department. He was eligible for Social Security benefits

and elected to have Brandon receive $1000 per month from his Social

Security benefits for the twenty-four month period when Brandon

was between sixteen and eighteen years old. He also paid child

support for Brandon to plaintiff.

The parties filed post-judgment cross-motions which were

resolved by a June 1, 2015 consent order that: (1) declared Brett

emancipated; (2) obligated defendant to pay plaintiff child

support of $168 per week for the support of Brandon; (3)

acknowledged plaintiff's receipt of $1000 per month from

defendant's Social Security benefits on behalf of Brandon since

October 2013; (4) required defendant to maintain health insurance

for Brett as long as he is eligible for coverage under defendant's

health insurance; (5) required the parties to equally share the

cost of Brandon's college education in accordance with the factors

set forth in Newburgh v. Arrigo, 88 N.J. 529 (1982); (6) allowed

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defendant full and complete participation in Brandon's college

selection process, with any failure in this regard being considered

"prima facie consent to emancipation of Brandon[;]" (7) allowed

defendant full and complete access to Brandon's enrollment and

financial aid packages, including the right to participate in

financial aid applications, loans, grants, and student loans, with

the failure to do so constituting "prima facie consent of defendant

not having to contribute to college contribution costs[;]" and (8)

provided that a failure by Brandon to maintain at least a 2.5

grade point average "will be prima facie for emancipation

regardless of the number of credits carried or coursework taken."

On November 30, 2015, defendant sought to enforce the consent

order by filing a certification under Rule 4:42-1, the so-called

"five-day rule." Plaintiff filed an objection to the proposed

order. The trial court then advised that defendant would have to

file a motion to enforce the consent order. On January 26, 2016,

defendant filed a motion to enforce litigant's rights and for the

following additional relief: (1) a full accounting of all Social

Security benefits paid to plaintiff on behalf of Brandon; (2)

declaring Brandon emancipated; and (3) terminating all support

obligations for Brandon, including child support and college

expense contribution.

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 In support of his motions, defendant certified to the

following facts: (1) plaintiff failed to meet her obligations

under the consent order because defendant had no involvement in

the selection process of his son's college, "no involvement or

knowledge of any attempts to obtain financial aid," and was not

given access to his son's online account for school work; (2)

under the consent agreement "if either party violates the terms

of the Consent Order it's a prima facie consent to the emancipation

of Brandon Covino[;]" and (3) plaintiff converted the Social

Security benefits, acting as if it belonged to her, rather than

applying it towards Brandon's college expenses.

Notably, defendant does not contend that Ocean County College

is academically inappropriate for Brandon, or that there was a

more appropriate or less expensive college that Brandon should

have considered.

On April 6, 2016, plaintiff filed a cross-motion for the

following relief: (1) imposing frivolous litigation sanctions

against defendant; (2) requiring defendant to reimburse plaintiff

for his one-half share of Brandon's first semester college

expenses; (3) requiring defendant to reimburse plaintiff for her

out-of-pocket expenses for Brandon's first semester books; (4)

requiring defendant to reimburse plaintiff for Brandon's spring

semester tuition; (5) requiring defendant to pay one-half of

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Brandon's future college costs; (6) requiring defendant to pay

one-half of Brandon's books and expenses for future semesters; (7)

requiring defendant to treat plaintiff and Brandon with respect

when discussing matters in the future; and (8) for counsel fees

and costs.

Plaintiff's supporting certification asserted the following

pertinent facts in response: (1) defendant did not make any

attempts to contact plaintiff or their son regarding his college

decision process; (2) defendant could have participated in any

aspect of their son's college admission process but he never

attempted to do so; (3) their son still lives with plaintiff; (4)

Ocean County College is very affordable; (5) one semester at Ocean

County College costs approximately $2000; and (6) the Social

Security money was spent on "[s]hoes, clothing, school supplies,

food, electricity," and anything else Brandon needed.

After the motions were twice transferred to different judges,

they were finally heard on April 22, 2016. During oral argument,

defendant requested that the trial court order discovery to

determine how the Social Security monies were used. Defendant

also sought a plenary hearing to address any issues of material

fact, arguing he had made a prima facie showing of emancipation.

Plaintiff did not object to a plenary hearing, offering to proceed

with the hearing that day. The judge indicated that he could not

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conduct a plenary hearing that day. The judge reserved decision

and subsequently issued a lengthy April 25, 2016 order, which

incorporated his findings and analysis.

The judge expressed the following initial concerns,

observations, and findings:

The court is concerned with both
parties['] unwillingness to communicate and
make decisions that are in the best interest
of the child, Brandon. Brandon chose to
attend Ocean County College after graduating
high school. The cost of tuition at Ocean
County College is significantly lower than
tuition at a public or private 4-year college
or university. However, the Defendant has
contradicted himself in his certification.
The Defendant seemed indignant that he was not
included in Brandon's selection process for
college per the Court Order. Furthermore, he
represented his dissatisfaction of having to
pay for Brandon's tuition because he was not
included in the process. It is unclear to the
Court if the Defendant would rather have the
child attend a 4-year university at a higher
cost as the Court cannot think of an
alternative college that would incur less
costs than a County College.

[Emphasis in original.]

The judge denied defendant's application to declare Brandon

emancipated without prejudice. The judge also denied defendant's

request for a plenary hearing with full discovery without

prejudice. In reaching that decision, the judge stated:

The child, Brandon, is currently attending
Ocean County College as a full-time
matriculating student. The Defendant was put

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 on notice of the child's desire to attend
Ocean County College for the fall semester.
If information regarding online access and a
release allowing the school to directly
contact the Defendant has not been provided
to the Defendant, the Plaintiff or Brandon
shall provide same by May 22, 2016.

Defendant's application to terminate child support for

Brandon was denied based on the finding that Brandon was not

emancipated.

Defendant's application to terminate any obligation to

contribute to Brandon's college expenses was also denied. Instead,

the judge referred the parties to economic mediation, stating:

The parties are REFERRED to ECONOMIC
MEDIATION. The parties' goal should be to
come up with a COLLEGE/POST GRADUATE EXPENSE
PLAN that will guide them for the future with
respect to BRANDON's plans. Hopefully, it
will also cut down on post judgment
litigation. The Defendant's request for full
discovery is DENIED, without prejudice. Mr.
Sico will forward a letter to [the] Court
listing discovery requested. Mr. Niemiec will
advise the Court wherein he agrees or
disagrees. The Court will then prepare the
discovery Order before the parties go to
ECONOMIC MEDIATION.

[Emphasis in original.]

Plaintiff's application to require defendant to reimburse her

for his one-half share of Brandon's out-of-pocket college costs

for the first semester was denied without prejudice. Similarly,

plaintiff's application to require defendant to reimburse her for

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one-half of the out-of-pocket expenses for 1) Brandon's first

semester books, 2) spring semester tuition, 3) college costs for

future semesters, and 4) books and expenses for future semesters,

was denied without prejudice.

The judge also denied defendant's application to compel a

full accounting of all Social Security monies paid to plaintiff

on behalf of Brandon, finding that plaintiff used the money to

support him.

Plaintiff's application for an award of counsel fees and

costs was denied without prejudice. Her application to sanction

defendant for filing a frivolous motion was also denied.

Defendant was ordered "to treat the Plaintiff and Brandon

Covino with respect when discussing these matters in the future .

. . ." Finally, the judge granted the following additional relief:

Both parties shall deposit $2,500.00 in each
respective attorney's bank account within
ninety (90) days of this Order. It shall be
used for Brandon's Ocean County College
tuition and college related expenses, upon the
consent of both parties either pre or post
ECONOMIC MEDIATION. Any unused monies shall
be released to the parties in equal shares
upon Brandon obtaining his associate's degree
or failing to maintain at least 12 credits per
semester, or upon further order of the Court.

Without first seeking the additional discovery or

participating in the economic mediation contemplated by the order,

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defendant filed this appeal. On August 19, 2016, the judge issued

the following clarification to paragraph 2 of his order:

The Court heard oral argument from
Defendant's counsel, STEVEN SICO, ESQ. Mr.
SICO indicated that the Defendant took a
deduction from his retirement, via social
security, to support the child in the amount
of $1,000 per month from the age of sixteen
(16) to eighteen (18). Counsel asserted that
this came to a total of $24,000.00, which has
not been accounted for. Defendant indicated
a similar argument in his written
certification.

The Court then heard oral argument from
Plaintiff's counsel, THADDEUS D. NIEMIEC, ESQ.
Mr. NIEMIEC indicated that the Plaintiff used
the funds to support the child. Counsel
represented that the child lived with the
Plaintiff during this time and it was to
provide food, clothes, and other necessities.
Plaintiff indicated a similar argument in
[her] written certification.

In this appeal, defendant contends the trial court erred by

deciding the motions based on conflicting factual certifications

without granting a plenary hearing. He further contends the trial

court abused its discretion by failing to enforce the June 1, 2015

consent order.

I.

"The scope of appellate review of a trial court's fact-finding

function is limited. The general rule is that findings by the

trial court are binding on appeal when supported by adequate,

substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394,

9 A-4180-15T4
411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins.

Co., 65 N.J. 474, 484 (1974)); accord MacKinnon v. MacKinnon, 191

N.J. 240, 253-54 (2007). "Furthermore, matrimonial courts possess

special expertise in the field of domestic relations." Id. at

412. "Because of the family courts' special jurisdiction and

expertise in family matters, appellate courts should accord

deference to family court factfinding." Id. at 413. "We reverse

only to ensure that there is not a denial of justice because the

family court's conclusions are clearly mistaken or wide of the

mark." Parish v. Parish, 412 N.J. Super. 39, 48 (App. Div. 2010)

(citations omitted). However, we owe no special deference to the

judge's legal conclusions. Manalapan Realty, L.P. v. Twp. Comm.

of Manalapan, 140 N.J. 366, 378 (1995).

Interpretation and construction of a contract, such as a

consent order, is a matter of law for the trial court, subject to

de novo review on appeal. Kaur v. Assured Lending Corp., 405 N.J.

Super. 468, 474 (App. Div. 2009) (reviewing the enforcement of a

settlement agreement de novo); Fastenberg v. Prudential Ins. Co.

of Am., 309 N.J. Super. 415, 420 (App. Div. 1998).

We "defer to a trial judge's discovery rulings absent an

abuse of discretion or a judge's misunderstanding or

misapplication of the law." Capital Health Sys. v. Horizon

Healthcare Servs., 230 N.J. 73, 79-80 (2017) (citing Pomerantz

10 A-4180-15T4
Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011)). Courts

"find[] an abuse of discretion when a decision is 'made without a

rational explanation, inexplicably departed from established

policies, or rested on an impermissible basis.'" US Bank Nat'l

Ass'n v. Guillaume, 209 N.J. 449, 467-68 (2012) (quoting Iliadis

v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).

II.

Defendant argues that the trial court erred in denying his

motion for enforcement of litigant's rights without conducting a

plenary hearing to resolve any disputed material facts. He

contends the consent order was fair and equitable and should have

been enforced. Defendant further contends that he made a prima

facie showing of emancipation.

When a moving party makes a prima facie showing that he is

"entitled to relief and there are contested issues of fact," the

trial court should hold a plenary hearing rather than come to a

decision based on "affidavits, answers to interrogatories and

depositions." Hallberg v. Hallberg, 113 N.J. Super. 205, 208 (App.

Div. 1971).

It is undisputed that plaintiff received the Social Security

funds to support Brandon, who resided with plaintiff during the

entire two years in question. As noted by the judge, plaintiff

provided Brandon with food, shelter, clothes, and other

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necessities. Although defendant contends that the Social Security

funds should have been used to pay for Brandon's college expenses,

the consent order indicates otherwise, requiring the parties to

equally share those expenses in addition to defendant paying child

support for Brandon.

Defendant's argument that the trial court erred by not

ordering full discovery misconstrues the trial court's ruling.

The trial court ordered defense counsel to supply the court with

a list of the requested discovery, followed by plaintiff's

counsel's response. The trial court would then prepare the

discovery order before the parties went to economic mediation.

Rather than comply with that directive, receive appropriate

discovery, and proceed to economic mediation, defendant filed this

appeal.

Defendant also argues that the trial court erred in failing

to enforce the consent order. New Jersey favors the use of

consensual agreements to resolve marital controversies. J.B. v.

W.B., 215 N.J. 305, 326 (2013) (citing Konzelman v. Konzelman, 158

N.J. 185, 193 (1999)). Matrimonial settlement agreements are

enforceable "'to the extent that they are just and equitable.'"

Lepis v. Lepis, 83 N.J. 139, 146 (1980) (quoting Schlemm v.

Schlemm, 31 N.J. 557, 581-82 (1960)). As in other contexts

involving contracts, a court must enforce a matrimonial agreement

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as the parties intended, so long as it is not inequitable to do

so. Pacifico v. Pacifico, 190 N.J. 258, 266 (2007).

In fact, the trial court did enforce the consent agreement.

The court required both parties to place $2500 into their

respective attorney's trust accounts for the purpose of paying for

the remainder of their son's college expenses pursuant to the

terms of the consent agreement.

Defendant further argues that the trial court erred in failing

to declare Brandon emancipated, warranting termination of child

support pursuant to the terms of the consent order. We disagree.

Emancipation does not occur automatically simply by reason

of the dependent child reaching the age of eighteen. Dolce v.

Dolce, 383 N.J. Super. 11, 17 (App. Div. 2006). "The issue of

[w]hether a child is emancipated at age eighteen, with the

correlative termination of the right to parental support, is fact-

sensitive." Ibid. (citation omitted). "[T]he 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." Id. at 17-18 (citations omitted).

A significant consideration in this regard is
the agreement of the parties to voluntarily
extend the parental duty of support beyond the
presumptive age of emancipation. In other
words, a parent can bind himself or herself
by consensual agreement, voluntarily and
knowingly negotiated, to support a child past

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 majority, and such agreement is enforceable
if fair and equitable.

[Id. at 18.]

Here, the parties voluntarily agreed to extend their duty to

support beyond the age of majority. Indeed, we note that the

consent order providing for child support and college expense

contribution was entered into less than four months before Brandon

turned eighteen years old.

We further note that the right of a child to be supported may

not be waived by a custodial parent. Gotlib v. Gotlib, 399 N.J.

Super. 295, 305 (App. Div. 2008); L.V. v. R.S., 347 N.J. Super.

33, 41 (App. Div. 2002)). "The public policy of this State as

derived from its parens patriae interest in the welfare of children

prohibits parents from bargaining away the essential rights of

their [children] to be properly supported." Patetta Patetta, 358

N.J. Super. 90, 95-96 (App. Div. 2003). Therefore, the parental

duty to support a child may not be waived or terminated by a

consent order, Martinetti v. Martinetti, 261 N.J. Super. 508, 512

(App. Div. 1993), or a property settlement agreement, Patetta,

supra, 358 N.J. Super. at 95-96.

Here, the provision in the consent order for "prima facie

consent" to the emancipation of Brandon and termination of child

support obligations upon failure to abide by the terms of the

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agreement is unenforceable against Brandon. Martinetti, supra,

261 N.J. Super. at 512.

Further, because defendant's emancipation argument relied

solely on plaintiff's alleged failure to comply with the terms of

the consent order, without addressing any of the Newburgh factors

for determining emancipation, the trial court properly determined

that defendant failed to make a prima facie showing of

emancipation. Moreover, the undisputed facts show that Brandon

was still living with plaintiff, supported by her, and attending

college full-time. Hence, defendant did not make out a prima

facie case that Brandon had moved beyond plaintiff's sphere of

influence and responsibility.

"[I]n the Family Part, a plenary hearing is only required if

there is a genuine, material and legitimate factual dispute."

Segal v. Lynch, 211 N.J. 230, 264-65 (2012). The requesting party

must make a prima facie showing that a "genuine issue of fact

exists bearing upon a critical question," which cannot be

accomplished by submitting conclusory certifications. Faucett v.

Vasquez, 411 N.J. Super. 108, 127-28 (App. Div. 2009) (citation

omitted).

Here, defendant's certification consists of merely conclusory

assertions, without addressing the pertinent facts and prevailing

circumstances critical to a fact-sensitive evaluation whether

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Brandon was emancipated. See Llewelyn, supra, 440 N.J. Super. at

216. Moreover, defendant failed to present any evidence that he

attempted to involve himself in the college selection and financial

aid applications and was prevented from doing so by plaintiff or

Brandon. Nor can we perceive a more economical manner to pursue

higher education than living at home with a parent while commuting

to a local community college. Thus, defendant failed to make a

prima facie showing entitling him to a plenary hearing.

In summary, we find no abuse of discretion by the trial court.

The record amply supports the mechanism employed by the trial

court to provide for additional discovery followed by economic

mediation without first conducting a plenary hearing. More

fundamentally, much of the relief sought by defendant was denied

without prejudice, allowing him to further pursue that relief if

the court-ordered economic mediation was unsuccessful. Defendant

unilaterally declined to do so, filing this appeal instead. He

should not be heard to complain that he was denied relief when he

chose not to participate in the reasonable procedures established

by the trial court to address the very issues he raised.

Affirmed.

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