NINA C. LONGER VS. ROBERT J. NACE (FM-03-0535-02, BURLINGTON 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NOT FOR PUBLICATION WITHOUT THE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-1018-17T3

NINA C. LONGER,

Plaintiff-Respondent,

v.

ROBERT J. NACE,

Defendant-Appellant.

Submitted September 20, 2018 - Decided March 4, 2019

Before Judges Fuentes and Accurso.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Burlington County,
Docket No. FM-03-0535-02.

Rabkin Law Offices, PC, attorneys for appellant
(Maryann J. Rabkin, on the brief).

Nina C. Longer, respondent pro se.

PER CURIAM

Defendant Robert J. Nace appeals from a post-judgment order denying his

motion to emancipate the daughter born of his marriage to plaintiff Nina C.
Longer. Because we conclude the judge failed to enforce the parties' property

settlement agreement incorporated into their judgment of divorce, which appears

fair and equitable, we reverse.

The essential facts are undisputed. The parties were divorced in 2002

after eleven years of marriage. Their children were ten and seven. As relevant

to the issues on appeal, the parties agreed they would share equally all costs of

their children's post-secondary education and that their obligation "to make

payments for the support and maintenance of the child(ren)" would terminate

upon the emancipation of each child, "which shall be defined by the laws of the

State of New Jersey at the time of the event, and generally deemed to occur

today at the earliest happening of the following events: (a) Reaching the age

of eighteen (18) years or completion of college education, whichever last

occurs."

Both children attended private colleges. Defendant, a retired teacher, and

plaintiff, the director of special services for a school district, shared equally the

costs of their children's college educations without requiring them to first

exhaust all available loans, grants and scholarships. As a result, the parties have

gone into considerable debt to avoid saddling their son and daughter with like

loans.

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 Following their daughter's graduation from college, defendant moved to

declare her emancipated in accordance with their property settlement agreement.

He also moved for the same relief as to their son, who by then had himself

graduated from college, worked full-time for two years while living with

plaintiff and enrolled in law school. Although acknowledging the parties' son

was emancipated, plaintiff opposed the motion as to the parties' daughter,

relying on N.J.S.A. 2A:17-56.67, a new law effective February 1, 2017, that

provides generally that "the obligation to pay child support shall terminate by

operation of law when a child reaches 23 years of age."

Plaintiff further asserted, without dispute by defendant, that the parties'

daughter, then twenty-two, had enrolled in a two-year program at Bryn Mawr

College to obtain a master's degree in social work. Plaintiff certified the young

woman was living at home with her and commuting to school, and that her field

placement obligations prevented her from obtaining paid employment. Plaintiff

argued their daughter was "not emancipated by any equitable standard or the

legal standard recently imposed by the New Jersey Legislature, which is the

controlling standard Defendant Nace agreed to in our Property Settlement

Agreement."

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 After hearing argument on the motion, the court entered an order,

consistent with its tentative decision, emancipating the parties' son but denying

that relief to defendant as to the parties' daughter. Although plaintiff was not

seeking defendant's contribution to their daughter's graduate school expenses

but only continuation of defendant's child support obligation for her, the court

analyzed the Newburgh 1 factors based on an unpublished opinion from this

court, albeit acknowledging it had no precedential value. See R. 1:36-3.2 After

a cursory review of the Newburgh factors, the court declined defendant's request

1
Newburgh v. Arrigo, 88 N.J. 529, 545 (1982).
2
The prohibition of R. 1:36-3 against a court citing an unreported decision is
not limited to an acknowledgment of the decision's lack of precedential value.
The larger point is that such a decision "cannot reliably be considered part of
our common law." Trinity Cemetery Ass'n, Inc. v. Twp. of Wall, 170 N.J. 39,
48 (2001) (Verniero, J. concurring). Writing for no audience other than the
parties, we have no need to painstakingly explain facts and circumstances of
which they are already aware. That lack of detail, however, presents a risk to
others attempting to rely on the opinion. Here, a close read of the unpublished
opinion makes plain the panel was not suggesting a court analyze the Newburgh
factors when "deciding a decision to end child support" as the trial judge stated.
Instead we were critical of the trial court for engaging in a less than "full review"
of those factors in determining whether the parents were obligated to contribute
to their child's graduate school costs, a point that had become moot while the
case was on appeal because of the financial package offered the child. In no
event should a court rely even on the persuasive value of an unreported opinion
when it is at odds with published authority, as here. See Martinetti v. Hickman,
261 N.J. Super. 508, 513 (App. Div. 1993) (noting "the tests of Newburgh . . .
are to be applied only where a contribution toward the direct costs of higher
education is sought").
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to enforce the property settlement agreement, finding the daughter had not

moved beyond her parents' sphere of influence, see Filippone v. Lee, 304 N.J.

Super. 301, 308 (App. Div. 1997), based on her enrollment in a full-time

graduate program.

We ordinarily accord deference to the family part based on its special

jurisdiction and expertise. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We

defer to the court's factual findings if "supported by adequate, substantial, and

credible evidence in the record." D.A. v. R.C., 438 N.J. Super. 431, 451 (App.

Div. 2014). We owe no deference, however, to rulings not based on witness

testimony or credibility findings. Yueh v. Yueh, 329 N.J. Super. 447, 461 (App.

Div. 2000). Our review of questions of law, including the interpretation of a

marital agreement is, of course, de novo. Nicholas v. Mynster, 213 N.J. 463,

478 (2013); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.

366, 378 (1995).

The law is well settled that "'absen[t] . . . unconscionability, fraud, or

overreaching in negotiations of the settlement,' a trial court has 'no legal or

equitable basis ... to reform the parties' property settlement agreement.'" J.B. v.

W.B., 215 N.J. 305, 326 (2013) (quoting Miller v. Miller, 160 N.J. 408, 419

(1999)). Of course, should changed circumstances render a fairly negotiated

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agreement no longer equitable, a court remains free to modify the prior

arrangement. Lepis v. Lepis, 83 N.J. 139, 146, 157, 161 n.12 (1980). And

although changed circumstances are not limited to those unanticipated by the

parties when they entered into their agreement, Dolce v. Dolce, 383 N.J. Super.

11, 19 (App. Div. 2006), the Supreme Court has cautioned that "care must be

taken not to upset the reasonable expectations of the parties," J.B.v. W.B., 215

N.J. at 327.

Emancipation is that point at which "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, 304 N.J. Super. at 308. Although our law

presumes a child emancipated upon attaining majority, parents can bind

themselves "by consensual agreement, voluntarily and knowingly negotiated, to

support a child past majority, and such agreement is enforceable if fair and

equitable." Dolce, 383 N.J. Super. at 18. When parents do so, "the parental

obligation is not measured by legal duties otherwise imposed, but rather founded

upon contractual and equitable principles." Ibid.

The parties in this case entered into a marital agreement to support their

children through "the age of eighteen (18) years or completion of college

education, whichever last occurs," sharing the costs equally. Moreover, they

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determined they would not require their children to work or apply for loans,

instead agreeing they would absorb all of the costs, going into debt if necessary,

to spare their children significant debt upon their graduations. As both parties

acknowledged the agreement was fair and equitable when they entered into it,

and plaintiff presented no proof of changed circumstances justifying its

modification, see Zazzo v. Zazzo, 245 N.J. Super. 124, 132 (App. Div. 1990),

the trial court should have enforced it as written, see Dolce, 383 N.J. Super. at

21.

We do not read N.J.S.A. 2A:17-56.67 to require a different result. That

statute provides for termination of any obligation to pay child support by

operation of law "when a child reaches 19 years of age unless: (1) another age

for the termination of the obligation to pay child support, which shall not extend

beyond the date the child reaches 23 years of age, is specified in a court order. "

By its terms, the statute establishes an outer limit, age 23, for payment of child

support. It cannot sensibly be read to extend an obligation of support that parties

freely negotiated in a consensual agreement to that outer limit. See DiProspero

v. Penn, 183 N.J. 477, 492 (2005) (noting the best indicator of the Legislature's

statutory intent is the statutory language).

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 The parties having entered into a consensual and fair agreement providing

for the emancipation of their children upon the completion of their college

educations, which both parties claim they incurred substantial debt to finance,

and plaintiff having not established changed circumstances sufficient to justify

modification of that agreement, the court erred in setting aside its terms.

Reversed.

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