CARMELO BELARDO VS. MARY JO BELARDO (FM-13-1564-03, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-2679-17T4

CARMELO BELARDO,

Plaintiff-Appellant,

v.

MARY JO BELARDO,

Defendant-Respondent.
_________________________

Argued January 22, 2019 – Decided February 21, 2019

Before Judges Messano and Gooden Brown.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FM-13-1564-03.

Gregory S. Baxter argued the cause for appellant
(Caruso & Baxter, PA, attorneys; Gregory S. Baxter on
the briefs).

Mary Jo Belardo, respondent, argued the cause pro se.

PER CURIAM
 In this post-judgment matrimonial matter, plaintiff ex-husband appeals

from a January 8, 2018 Family Part order denying his motion to emancipate the

parties' only child, a daughter born March 1998, and ordering him to pay sixty

percent of their daughter's college costs. For the reasons that follow, we reverse

and remand for further proceedings.

The parties married in 1997 and divorced in 2004. Under the parties'

property settlement agreement (PSA), which was incorporated into their

November 10, 2004 dual judgment of divorce (DJOD), defendant ex-wife had

"sole legal custody" and "primary physical custody" of their daughter, and

plaintiff was required to pay child support of $180 per week, payable through

the Probation Department. However, "[t]he parties agree[d] to recalculate child

support" when their daughter became "eligible to receive social security

benefits" based on plaintiff's anticipated receipt of benefits in 2006 when he

turned sixty-two years of age, "or upon the happening of any other change in

circumstances."

Pertinent to this appeal, under the PSA, plaintiff's child support obligation

would continue until their daughter was "deemed emancipated" upon the

occurrence of any of the following:

a. reaching the age of [eighteen] years or the
completion of [four] academic years of continuous

A-2679-17T4
2
 college education consisting of full[-]time attendance,
taking at least twelve (12) credits per semester,
whichever last occurs;

....

[b]. permanent residence away from the residence of
the parent who has physical custody. A residence at
. . . college is not to be deemed a residence away from
the residence of the parent who has physical custody
and hence such residence . . . is not to be deemed
emancipation; [or]

....

[c]. engaging in full[-]time employment upon and
after the attainment by the child of [eighteen] years of
age, except if the child is in college[.]

Regarding the parties' obligation to contribute to college expenses, the

provision of the PSA entitled "College/Vocational School" specifically

provided:

Should the child desire to attend college or
vocational school and have the ability to do so, each
party shall be responsible to share the cost and expense
of said college or vocational school, to the extent that
each shall be financially able to do so, after first
utilizing all loans, grants[,] and scholarships available
to the child. Said costs shall include, but shall not be
limited to application fees, tuition, costs, fees, financial
aid consulting fees, room and board, books[,] and
commuting expenses. The choice of said college or
vocational school shall be mutually agreed upon in
advance by . . . [plaintiff], . . . [defendant,] and the

A-2679-17T4
3
 child. Neither party shall unreasonably withhold
agreement with regard to said choice.

Additionally, the parties "agree[d] that child support [would] be renegotiated in

the event that the child attend[ed] college or vocational school and live[d] away

from home."

In negotiating and executing the PSA, the parties acknowledged "they

[had] been fully represented by their respective counsel," with whose services

"they [were] satisfied," and they understood "the legal and practical effect of

[the] [a]greement." They further acknowledged that the agreement was "fair and

equitable, that they enter[ed] into same voluntarily with no coercion, t hreats[,]

or undisclosed promises," and that the agreement was "not the result of any

fraud, duress[,] or undue influence" exercised by anyone.

Prompted by their daughter's high school graduation in June 2016, in a

June 17, 2016 consent order, the parties acknowledged their shared "obligation

to provide for the full-time college or vocational school education of [their

daughter]," and agreed to exchange financial information, including "2014 and

2015 tax returns," "W-2's" and "recent paystubs[,]" in order "to address the issue

. . . per the parties['] [PSA]." The financial documents were due within fourteen

days of the execution of the order.

A-2679-17T4
4
 Thereafter, on March 23, 2017, plaintiff moved to emancipate their

daughter and terminate his child support obligation, effective April 1, 2017,

based upon her graduation from the Robert Fiance Beauty School (Robert

Fiance). Plaintiff also sought an order terminating his "obligation to pay any

amount toward [their daughter's] college/vocational school expenses . . . as of

[April 1, 2017,]" or limiting his contribution to the amount he "ha[d] already

paid" towards the Robert Fiance expenses. In the alternative, plaintiff sought a

recalculation of his child support obligation, taking into consideration his

payments to Robert Fiance and his daughter's receipt of social security benefits.

In his supporting certification, plaintiff stated that after graduating from

high school, their daughter enrolled in Robert Fiance's "ten month program" and

was graduating in March 2017. Plaintiff asserted "[i]t was [his] understanding

that [their daughter] would emancipate . . . upon her graduation from Robert

Fiance." Thus, at defendant's request, he had paid eighty percent of the total

cost, or $6760, in order for their daughter to attend Robert Fiance, and believed

that the payment satisfied his college contribution obligation under the PSA .

However, in "approximately [July] 2016," defendant advised him via text

message that their daughter "might attend Brookdale Community College

[(Brookdale)]." In addition, after Probation notified plaintiff that his child

A-2679-17T4
5
support obligation would automatically terminate on August 1, 2017, defendant

requested a "[c]ontinuation of [s]upport" based on their daughter's enrollment in

"college or other post-secondary education program," which resulted in a

determination that his child support obligation would continue until Ma rch 11,

2021.

Although plaintiff did "not know if [their daughter] ever attended

Brookdale," he did not believe he had "any responsibility to further contribute

to the cost of [her] attending college or Brookdale" because "the terms of both

[their] PSA and the [June 17, 2016 consent] [o]rder" only obligated him to pay

for "either college or vocational school[,] [n]ot both." Further, when he paid for

Robert Fiance, defendant represented to him in a text message that she was "not

asking [him] to pay for college."

Plaintiff also objected to paying for "any college above and beyond Robert

Fiance" because his daughter "ha[d] refused to have a relationship with [him,]"

and neither his daughter nor defendant consulted him about college in any

meaningful way. Plaintiff asserted that following the divorce, despite being

awarded "supervised parenting time," "[d]efendant did whatever she could to

prevent [him] from having any relationship at all with [their daughter,]" and, as

a result, he had no contact with her from 2003 to 2015. Further, he never

A-2679-17T4
6
received any acknowledgements for the "greeting cards" and "magazine

subscriptions" he sent her regularly during that time period. After he initiated

contact with her via text messaging, they exchanged texts and had four visits

from 2015 to 2016. However, according to plaintiff, as soon as he arranged to

make the Robert Fiance payments, "[their daughter] ceased speaking to [him]."

Plaintiff declared that if their daughter was not emancipated, he sought a

recalculation of child support 1 based on changed circumstances. Plaintiff stated

that he was then "[seventy-two] years old, . . . [twenty-one] years older than

[d]efendant," and, despite working "full-time" "as an optician," "simply

want[ed] to retire." 2 Plaintiff certified he "collected age-based Social Security

Benefits" since turning "age [sixty-five,]" and believed defendant and their

daughter received a "derivative Social Security Benefit" from his benefit. He

asserted further that defendant was "employed on a full[-]time basis as a sales

associate" and, although "[he did] not know how much [she] earn[ed,]" he

"believe[d] that [her] income ha[d] increased since [their] [d]ivorce." Plaintiff

1
Plaintiff certified he currently paid child support of $217 per week as a result
of cost of living increases.
2
An addendum to the PSA provided that "[plaintiff's] retirement at age [sixty-
two would] be a sufficient change of circumstances warranting a recalculation
of [child] support, providing his income [was] reduced as a result of his
retirement."
A-2679-17T4
7
also criticized defendant for failing to provide her current financial information

as required by the consent order, despite his compliance. As a consequence, he

sought appropriate relief from the court.

Defendant opposed the motion and cross-moved for an order establishing

the respective college contributions of the parties, as well as other relief not

pertinent to this appeal. In her supporting certification, defendant disputed most

of plaintiff's assertions. Specifically, defendant certified that "[n]otwithstanding

[p]laintiff's efforts to avoid the discussion, [she had] engaged in repeated and

many communications with [p]laintiff about [their] daughter's college

education." According to defendant, rather than being emancipated, their

daughter "[was] attending Brookdale" "full-time," "commuting to college from

[defendant's] home," and "receiving scholarship funding[,]" resulting in an

"expected net cost" to them of "less than [$1000]" in college expenses.

Defendant supplied a letter from Brookdale College's enrollment specialist

indicating that their daughter was enrolled full-time for the Fall 2016 and the

Spring 2017 semesters.

Defendant asserted that plaintiff misinterpreted the PSA because "the use

of 'or' in [their] agreement as to vocational school and college was [never]

intended to limit [their] daughter's academic and life progress to one or the

A-2679-17T4
8
other." Defendant also denied preventing plaintiff from having a relationship

with their daughter and attributed "any distanced relationship" to plaintiff.

Additionally, defendant denied that their daughter was "receiving social security

benefits[,]" and denied that she (defendant) failed to provide financial

information as required by the consent order. Defendant claimed that her

earnings from working "at an eye glass store" represented twenty-five percent

of the parties' total income while plaintiff, "a most successful professional[,]"

earned the remaining seventy-five percent.

In a reply certification, plaintiff refuted several of defendant's contentions.

Specifically, plaintiff denied that either defendant or their daughter "ever

approached [him], consulted [him,] or otherwise advised [him] that [their

daughter] was going to attend Brookdale prior to her doing so." Further,

contrary to defendant's contention that he refused to reimburse her for the

Brookdale expenses, plaintiff denied receiving any schedules, grades[,] or

expenses from Brookdale or being provided "access to anything." While

plaintiff acknowledged that, at age nineteen, their daughter "may no longer [be]

receiv[ing] Social Security [b]enefits," he reaffirmed that "[she] received these

benefits for many years while [he] paid guideline child support." Further,

A-2679-17T4
9
plaintiff denied that defendant provided "her financials," in direct violation of

the consent order.

Plaintiff requested oral argument as permitted under Rule 1:6-2(c). Upon

being notified that the trial court wished to hear the motion and cross-motion on

the papers, plaintiff's counsel sent a letter to the court renewing plaintiff's

request for oral argument. Plaintiff's counsel also objected to the court

considering defendant's supplemental certification and attached exhibits,

submitted in response to plaintiff's reply certification without leave of court in

violation of Rule 1:6-3(b).3

Notwithstanding plaintiff's request, on January 8, 2018, over nine months

after plaintiff's motion was filed, without conducting oral argument, the court

denied plaintiff's motion to emancipate their daughter, or, in the alternative,

recalculate child support, and ordered him to contribute sixty percent towards

college expenses. In the statement of reasons accompanying the order, the court

applied the factors delineated in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982),

to determine a parent's obligation to pay for college expenses. Additionally, in

making factual findings, the court relied on the college contribution provision

3
Defendant's supplemental certification and exhibits were not provided by
either party and are therefore not part of the record.
A-2679-17T4
10
in the PSA, the parties' financial information, and the college expenses incurred

to date as supplied by defendant.

The court determined that "if the parties were still living together[,] . . .

they both would have contributed" to their daughter's college expenses and

"[had] the means to contribute." The court also found the cost of attendance, in

comparison to the parties' annual income, would not constitute "an unreasonable

burden," and was "in line with the traditional costs associated with programs at

[Robert Fiance] and [Brookdale]." Moreover, according to the court, the child

demonstrated the necessary aptitude for college, having completed Robert

Fiance, and now attending Brookdale "to enhance her future employment

prospects."

The court was "unable to determine whether either of the parties had been

actively engaged in [their daughter's] decision to attend [Robert Fiance] and

[Brookdale,]" and acknowledged that "[p]laintiff ha[d] a strained relationship

with [their] daughter." Nonetheless, the court determined "based on what has

been provided, . . . that [p]laintiff has attempted and continue[d] to attempt [to

have] a relationship with [their] daughter by way of correspondence and

contributing towards [their daughter's] college expenses in 2016."

The court concluded:

A-2679-17T4
11
 [T]he parties[] have an obligation to contribute to [their
daughter's] college expenses. The court acknowledges
that [plaintiff's] lack of a relationship with the parties'
child and [defendant's] failure to provide [plaintiff]
with the child's course schedules and grades should bar
him from having a college contribution obligation.
However, the court will not dismiss [plaintiff's]
obligation due to the fact that the parties' child has
made a significant effort to continue her education and
apply for grants, loans, and scholarships, which have
almost completely covered the costs of her education.

At no point in the statement of reasons did the court expressly address the

provision of the PSA requiring plaintiff to contribute to either "college or

vocational school." This appeal followed.

On appeal, plaintiff argues the court erred in denying oral argument,

which is permitted under Rule 5:5-4(a) "when significant substantive issues are

raised." Plaintiff also argues the court "did not have the right to change the

parties' agreement" and confer a benefit to defendant that "was contrary to the

agreement reached by the parties." Thus, plaintiff argues the court erred in not

emancipating their daughter, and terminating his "obligation to provide child

support" and contribute to "college costs . . . based on the parties' agreement and

the case law." Additionally, plaintiff argues that "[a]ny reliance" placed on

defendant's "second reply certification should . . . be voided" as violating Rule

1:6-3(b).

A-2679-17T4
12
 We begin with a review of basic principles. "Although we are obliged to

defer to the factual findings and discretionary decisions made by the Family Part

due to the specialized nature of the court," Barr v. Barr, 418 N.J. Super. 18, 31

(App. Div. 2011) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)), "a question

regarding the interpretation or construction of a contract is a legal one and our

review is plenary, with no special deference to the trial judge's interpretation of

the law and the legal consequences that flow from the established facts." Ibid.

It is well established that matrimonial agreements, like the PSA in this case, are

basically contractual in nature. Pacifico v. Pacifico, 190 N.J. 258, 265 (2007).

Thus, its interpretation is subject to de novo review on appeal. Zabilowicz v.

Kelsey, 200 N.J. 507, 512-13 (2009). See Kaur v. Assured Lending Corp., 405

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

settlement agreement de novo).

While we recognize "[t]he basic contractual nature of matrimonial

agreements," we grant "'particular leniency to agreements made in the domestic

arena'" and allow the Family Part "'greater discretion when interpreting such

agreements.'" Sachau v. Sachau, 206 N.J. 1, 5 (2011) (quoting Guglielmo v.

Guglielmo, 253 N.J. Super. 531, 542 (App. Div. 1992)). Nonetheless, New

Jersey has a strong public policy favoring the enforcement of PSAs. Massar v.

A-2679-17T4
13
Massar, 279 N.J. Super. 89, 93 (App. Div. 1995). As a result, these agreements

are approached with the presumption that they are valid and enforceable, and

will be enforced "if they are fair and equitable." Ibid. Indeed, "fair and

definitive arrangements arrived at by mutual consent should not be

unnecessarily or lightly disturbed[,]" Quinn v. Quinn, 225 N.J. 34, 44 (2016)

(quoting Konzelman v. Konzelman, 158 N.J. 185, 193-94 (1999)), and "a court

should not rewrite a contract or grant a better deal than that for which the parties

expressly bargained." Id. at 45.

To that end, in interpreting a PSA, "courts should discern and implement

the intentions of the parties[,]" and not "rewrite or revise an agreement when the

intent of the parties is clear." Ibid. "[W]hen the intent of the parties is plain and

the [PSA] language is clear and unambiguous, a court must enforce the

agreement as written, unless doing so would lead to an absurd result." Ibid.

However, "[t]o the extent that there is any ambiguity in the expression of the

terms of a settlement agreement, a hearing may be necessary to discern the intent

of the parties at the time the agreement was entered and to implement that

intent." Ibid. (citing Pacifico, 190 N.J. at 267). In making that determination,

courts look to the "'language used, the situation of the parties, the attendant

circumstances, and the objects the parties were striving to attain.'" Barr, 418

A-2679-17T4
14
N.J. Super. at 32 (quoting Celanese Ltd. v. Essex Cty. Improvement Auth., 404

N.J. Super. 514, 528 (App. Div. 2009)).

Applying these principles, we are constrained to reverse the court's

decision ordering plaintiff to contribute sixty percent towards college expenses

because the court failed to consider and enforce the explicit term of the PSA,

which was reinforced by the consent order. The PSA clearly required plaintiff

"to share the cost and expense" of "college or vocational school," which he did.

Inasmuch as the agreement was voluntary, knowing, and consensual, and "not

the result of any fraud, duress[,] or undue influence," there were no compelling

reasons to depart from the clear, unambiguous, and mutually understood terms

of the PSA. See Quinn, 225 N.J. at 47 ("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[.]'" (alteration in original) (quoting Miller v.

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

While we are satisfied that the PSA provision regarding plaintiff's college

contribution obligation obviated the need for an analysis of the issue under

Newburgh, parenthetically, we note that had such an analysis been required,

given the conflicting certifications of the parties, the court should have

A-2679-17T4
15
conducted a plenary hearing rather than adjudicate the issue on the papers. "[I]n

a variety of contexts, courts have opined on the impermissibility of deciding

contested issues of fact on the basis of conflicting affidavits or certifications

alone." State v. Pyatt, 316 N.J. Super. 46, 50 (App. Div. 1998). In particular,

where the parties' certifications raise issues of fact or require credibility

determinations, relief cannot be denied absent a plenary hearing. Whitfield v.

Whitfield, 315 N.J. Super. 1, 12 (App. Div. 1998).

Likewise, courts have noted that litigants should be permitted oral

argument of motions other than calendar matters and routine discovery

applications when requested "as a matter both of due process and the appearance

of due process." Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997);

see also Pressler & Verniero, Current N.J. Court Rules, cmt. 1.1 on R. 5:5-4

(2019) ("[T]here is a strong presumption favoring argument of motions other

than calendar matters and routine discovery applications.").

To that end, Rule 5:5-4(a) expressly provides:

Motions in family actions shall be governed by [Rule]
1:6-2(b) except that, in exercising its discretion as to
the mode and scheduling of disposition of motions, the
court shall ordinarily grant requests for oral argument
on substantive and non-routine discovery motions and
ordinarily deny requests for oral argument on calendar
and routine discovery motions.

A-2679-17T4
16
 "The discretion afforded by Rule 5:5-4(a) is designed to give the judge

'the option of dispensing with oral argument . . . when no evidence beyond the

motion papers themselves and whatever else is already in the record is necessary

to a decision. In short, it is the sole purpose of these rules to dispense with what

is regarded as unnecessary or unproductive advocacy.'" Palombi v. Palombi,

414 N.J. Super. 274, 285 (App. Div. 2010) (alteration in original) (quoting Fusco

v. Fusco, 186 N.J. Super. 321, 328-29 (App. Div. 1982)).

However, a judge's inquiry does not end simply because the "nature of an

issue presented can be labeled as pertaining to a substantive issue" or when the

parties disagree on all facts. Id. at 286. "Other circumstances, such as the

sufficiency of the supporting facts alleged are also relevant to the exercise of

discretion. This is particularly true in the case of motions that seek a

modification of financial obligations . . . because the movant must satisfy certain

requirements before these motions are ripe for decision by the court." Ibid.

To be sure, the issue of emancipation is "substantive" by nature.

Filippone, 304 N.J. Super. at 306. Nonetheless, plaintiff's request for oral

argument was effectively denied despite the parties' widely divergent and

conflicting certifications and the court's own acknowledgement that there were

gaps in the record. Thus, we remand for the court to conduct oral argument,

A-2679-17T4
17
and, if necessary, a plenary hearing on the issue of emancipation. 4 See Llewelyn

v. Shewchuk, 440 N.J. Super. 207, 217 (App. Div. 2015) (noting "[t]he critical

evaluation required for emancipation determinations typically necessitates a

plenary hearing, especially 'when the submissions show there is a genuine and

substantial factual dispute[,]' which the trial court must resolve" (second

alteration in original) (quoting Hand v. Hand, 391 N.J. Super. 102, 105 (App.

Div. 2007))); see also Tretola v. Tretola, 389 N.J. Super. 15 (App. Div. 2006)

(reversing the court's emancipation ruling because the court failed to conduct a

plenary hearing and "failed to recognize there were material facts in dispute and

evidence beyond the motion papers necessary for resolution of the matter").

Based on our decision, we need not address plaintiff's remaining

arguments, with the following exception. Plaintiff filed a motion to suppress

4
We disagree with plaintiff's contention during oral argument that if we agree
he satisfied the condition in the PSA regarding his obligation to contribute to
college expenses, then the child is automatically emancipated. See Newbugh,
88 N.J. at 543 (noting that despite finding "the facts did not warrant an award
solely for college expenses," a court may order "continued support of son while
son [was] enrolled as [a] student") (citing Jonitz v. Jonitz, 25 N.J. Super. 544,
556 (App. Div. 1953)). On the contrary, the PSA specifies that their daughter
would be deemed emancipated upon the occurrence of certain events, including
"completion of [four] academic years of continuous college education consisting
of full[-]time attendance[.]" Thus, under the PSA, the child may not be deemed
emancipated until she completes college, notwithstanding the termination of
plaintiff's obligation to contribute to those expenses.
A-2679-17T4
18
defendant's brief pursuant to Rule 2:6-9, arguing that the brief does not conform

with the court rules. However, in light of our decision and in the interest of

justice, we deny the motion.

Reversed and remanded for proceedings consistent with this opinion. We

do not retain jurisdiction.

A-2679-17T4
19