DAVID A. FORMAN VS. AMY LEVENSON (FM-02-1773-10, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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 i t 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-0238-18T3

DAVID A. FORMAN,

Plaintiff-Respondent,

v.

AMY LEVENSON,

Defendant-Appellant.

Submitted December 9, 2019 – Decided January 22, 2020

Before Judges Fasciale, Rothstadt and Moynihan.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-1773-10.

Hegge & Confusione, LLC attorneys for appellant
(Steven Resnick, on the briefs).

Laufer, Dalena, Jensen & Bradley, LLC, attorneys for
respondent (Terryann K. Bradley and Peter Gino
Bracuti, on the brief).

PER CURIAM

Defendant appeals from paragraphs one and three of an August 31, 2018
order partially denying reconsideration of a June 12, 2018 order pertaining to

child support; and a September 18, 2018 order, which amended defendant's child

support obligation. 1 Plaintiff sought child support for his eighteen-year-old son

(the son) and, after initially denying that application, the judge awarded plaintiff

support until the son's twenty-third birthday. We reverse that part of the judge's

order on the emancipation ruling, vacate the child support award in plaintiff's

favor, and remand for a plenary hearing consistent with this opinion. We

otherwise affirm.

In May 2018, plaintiff filed a motion for (1) child support; (2) permission

to issue subpoenas relating to settlement monies paid to defendant by her former

employer (the Barclays settlement); (3) enforcement of a provision of the

Marital Settlement Agreement (MSA) relating to an investment account at

Goldman Sachs (GS account); and (4) counsel fees. Plaintiff's May 2018 motion

led to the orders under review.

On appeal, defendant argues the judge (1) deprived her of due process; (2)

1
On today's date, we released our opinion in Forman v. Levenson (Forman I),
No. A-3518-17 (App. Div. Jan. 22, 2020) (slip op. at 1). In that action, defendant
appealed from a March 23, 2018 order confirming an arbitration award.
Defendant primarily argued that the arbitration agreement was invalid, the
Arbitrator exceeded the scope of his powers, and plaintiff engaged in fraud. We
disagreed and upheld the award.
A-0238-18T3
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erred by denying reconsideration; (3) lacked jurisdiction; (4) erroneously

awarded plaintiff child support without conducting a plenary hearing; (5)

improperly ordered that her support payments be made via income withholding;

(6) mistakenly concluded the son would remain unemancipated; and (7) abused

her discretion by awarding plaintiff counsel fees and finding defendant engaged

in bad faith.

I.

We begin with defendant's argument that the judge denied her due process

by failing to adjourn the return date on plaintiff's motion. We see no abuse of

discretion by denying the adjournment request and conclude there was no due

process violation.

Plaintiff filed his motion on May 4, 2018, with a return date of June 8,

2018. Defendant did not file a timely opposition. On June 4, 2018, defendant

requested consent to adjourn the motion, which plaintiff's counsel refused.

Defendant then wrote the judge two letters. Her first letter—which was

undated—requested an adjournment and advised the judge that she had been ill

and misunderstood the deadline for filing an opposition. In that same letter,

defendant pointed out inaccuracies in plaintiff's case information statement

(CIS), detailed her own finances, and argued the judge lacked jurisdiction

A-0238-18T3
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because the appeal in Forman I was pending. Her second letter—dated June 8,

2018—alleged that plaintiff's counsel submitted "a knowingly inaccurate CIS,"

and stated that "the issues of child support and respective income are in the

appellate court now," thus depriving the judge of "jurisdiction on non-

enforcement issues."

The judge disbelieved that defendant was confused, found that defendant

represented herself in multiple post-judgment matters and was familiar with the

court system, and determined that defendant acted in bad faith. Moreover,

defendant did not explain what information she would have presented to the

judge had she obtained the adjournment. Although the decision to grant or deny

an adjournment "is peculiarly within the sound discretion of the trial court,"

because one party's right to compliance with the rules could conflict with the

other party's right to an adjudication on the merits, "competing policies are

involved in disputes over procedural issues." Abtrax Pharm., Inc. v. Elkins-

Sinn, Inc., 139 N.J. 499, 513 (1995) (internal quotation marks and citation

omitted). An adjournment request should be granted when denying it would

cause the requesting party manifest wrong or injury. See Allegro v. Afton Vill.

Corp., 9 N.J. 156, 161 (1952). Here, there was no prejudice because the relief

in the order was not adverse to defendant.

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 First, the judge denied plaintiff's motion seeking permission to issue

subpoenas. As for child support, the judge initially denied plaintiff's motion. It

was not until plaintiff's reconsideration motion that plaintiff obtained an order

from the judge awarding child support, and by then, defendant had filed an

opposition. Thus, the child support award—which we are vacating—resulted

from the timely opposed motion for reconsideration, not from the judge's denial

of defendant's adjournment request.

Second, defendant was aware, before plaintiff filed the May 2018 motion,

that the Arbitrator ordered her to pay the awards, and that the judge confirmed

the specific amounts. Defendant had every opportunity to litigate the

substantive merits of those awards during the arbitration proceedings. Indeed,

we upheld the awards in Forman I.

Third, defendant does not appeal or dispute the judge's findings that

plaintiff was entitled to $1098.61 for his share of the GS account, and that

defendant failed to give him his share as required by the MSA. It was not a

manifest wrong or injury for the judge to order defendant to pay a debt that she

failed to dispute. See Allegro, 9 N.J. at 161.

Fourth, the judge's grant of attorneys' fees to plaintiff was grounded in

defendant's bad faith pertaining to failure to pay the arbitration awards—which

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we will subsequently address—not solely on defendant's bad faith for making

the adjournment request. In other words, the judge saw bad faith, concluding

defendant falsely claimed she "genuinely was unaware of the procedural filing

requirements." The judge however premised the award of attorneys' fees on her

finding that defendant failed to pay the arbitration awards and that defendant

"acted in bad faith in not complying with the provisions of the MSA." The judge

found the MSA allowed for attorneys' fees for any willful violation.

II.

Defendant argues that the judge erred by denying her motion for

reconsideration of the June 12, 2018 order. Essentially, she contends that,

because she submitted a certification attesting to her health issues and her

confusion regarding the return date, the judge should have found that her

representations as to those facts were correct. We see no abuse of discretion by

denying defendant's motion.

On June 12, 2018, the judge denied plaintiff's request for child support

and "subpoena power," but ordered defendant to pay plaintiff (1) $344,972.58

from the Barclays settlement; (2) $15,000 towards plaintiff's attorneys' fees,

ordered by the Arbitrator on February 2, 2018; and (3) $2665 to pay directly to

plaintiff's attorneys, ordered by the Arbitrator on October 25, 2017. The June

A-0238-18T3
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12, 2018 order provided that the specified amounts would be "reduced to

judgment in favor of the [p]laintiff" if defendant failed to comply. 2 This order

further required defendant to make additional payments, including (1) $1098.61

for his share of the GS account, and (2) $4185 in counsel fees. 3

Defendant unsuccessfully moved for reconsideration of the monetary

amounts referenced in the June 12, 2018 order. Plaintiff filed a motion in aid of

litigant's rights, and cross-moved for reconsideration of the judge's denial of

child support. On August 31, 2018, the judge granted plaintiff's motion for

reconsideration, and without holding a plenary hearing, ordered defendant to

"pay child support . . . in the amount of $367.00 per week with $10.00 in arrears

until paid in full effective May 4, 2018 through Bergen County Probation[.]"

The judge also granted plaintiff's motion to hold defendant in violation of

litigant's rights, and ordered defendant to pay $3345 to plaintiff's attorneys.

"[R]econsideration 'is a matter within the sound discretion of the [c]ourt,

to be exercised in the interest of justice.'" Cummings v. Bahr, 295 N.J. Super.

2
The $344,972.58 award was reduced to judgment by an earlier order dated
April 30, 2018, which was entered by another judge.
3
The order stated "[p]laintiff to pay counsel fees for this motion," but the
accompanying statement of reasons and later references make clear that
defendant, rather than plaintiff, was to pay the fees.
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374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401

(Ch. Div. 1990)). Reconsideration should only be used "'for those cases which

fall into that narrow corridor in which either 1) the [c]ourt has expressed its

decision based upon a palpably incorrect or irrational basis, or 2) it is obvious

that the [c]ourt either did not consider, or failed to appreciate the significance

of probative, competent evidence[.]'" Ibid. (quoting D'Atria, 242 N.J. Super. at

401-02).

A party should not seek reconsideration based only on dissatisfaction with

the judge's decision, and "[t]he standards for reconsideration are substantially

harder to meet than are those for a reversal of a judgment on appeal." Regent

Care Ctr., Inc. v. Hackensack City, 20 N.J. Tax 181, 184-85 (2001). The party

seeking reconsideration must show that the judge "acted in an arbitrary,

capricious, or unreasonable manner." D'Atria, 242 N.J. Super. at 401 (remarking

that "[a]lthough it is an overstatement to say that a decision is not arbitrary,

capricious, or unreasonable whenever a [c]ourt can review the reasons stated for

the decision without a loud guffaw or involuntary gasp, it is not much of an

overstatement").

The judge acted within her discretion in denying defendant's adjournment

request, even assuming the truth of defendant's representations regarding her

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state of health and confusion. The fact that defendant more formally certified

to the same facts that she previously presented in her two informal letters to the

judge did not establish an abuse of discretion. Defendant's poor health and

procedural misunderstanding did not entitle her to an adjournment, regardless

of how those facts were presented. Thus, for the same reasons the judge did not

abuse her discretion in denying the adjournment request in the first instance, she

did not abuse her discretion in refusing to reconsider that determination.

III.

Defendant argues that the trial court lacked jurisdiction to address

plaintiff's request for child support because defendant's appeal from the

arbitration award was pending (Forman I). Defendant explained to the judge

that "[m]uch of [p]laintiff's requested relief" was the subject of the pending

appeal, but she did not specify which relief. The judge did not specifically

address this issue because it was not adequately raised. Defendant generally

argues that the judge lacked jurisdiction to make a substantive ruling on child

support because that issue was before the Arbitrator.

The Arbitrator considered defendant's application for child support, filed

in January 2014 and decided in February 2018, and the final order ending all

issues in the arbitration was entered on April 2, 2018. Plaintiff did not seek

A-0238-18T3
9
child support during arbitration, but in May 2018, he sought child support from

the judge, retroactive to September 2017. The judge awarded plaintiff child

support, but declined giving retroactive effect to the award, holding that

defendant's obligation would begin in May 2018⸺when plaintiff filed his

motion in the trial court.

The arbitration only dealt with defendant’s request for child support, not

plaintiff's. But because the parties agreed in December 2017 to submit "[a]ll

issues that could have been raised and adjudicated by the [c]ourt in the New

Jersey Superior Court, Family Part – both interim and final" to the Arbitrator,

arguably any request for child support during the arbitration period, including

plaintiff's, should have been submitted to the Arbitrator. Once the arbitration

was fully concluded in April 2018, however, there was no reason plaintiff could

not apply to the judge for child support based on changed circumstances. See

Lepis v. Lepis, 83 N.J. 139, 145 (1980) (noting that "[t]he equitable power of

the courts to modify alimony and support orders at any time is specifically

recognized by N.J.S.A. 2A:34-23"); see also Chalmers v. Chalmers, 65 N.J. 186,

192 (1974) (stating that child support is "always subject to review on a showing

of changed circumstances"). Thus, notwithstanding the appeal in Forman I, the

judge had jurisdiction to consider plaintiff's application based on changed

A-0238-18T3
10
circumstances, which takes us to the main reason we conclude remand is

necessary.

IV.

Defendant argues that the judge erred in awarding plaintiff child support

based on changed circumstances without holding a plenary hearing to consider

"new evidence and updated financial information." On this point, we agree with

defendant. We therefore vacate the child support award and remand for a

hearing.

"Because 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 [judge] are binding on appeal when supported by

adequate, substantial, credible evidence." Gnall v. Gnall, 222 N.J. 414, 428

(2015). However, a reviewing court owes no deference to a trial judge's

interpretation of the law, which it reviews de novo. Manalapan Realty, L.P. v.

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

A trial judge's decision to grant or deny an application to modify child

support is reviewed for an abuse of discretion. Larbig v. Larbig, 384 N.J. Super.

17, 21 (App. Div. 2006). "Of course, the exercise of this discretion is not

A-0238-18T3
11
limitless" and remains guided by the law and principles of equity. Steneken v.

Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004). A judge abuses his or her

discretion where the award is "manifestly unreasonable, arbitrary, or clearly

contrary to reason or to other evidence, or the result of whim or caprice." Jacoby

v. Jacoby, 427 N.J. Super. 109, 116-17 (App. Div. 2012) (internal quotation

marks and citation omitted).

In determining whether to modify child support, the trial judge should

bear in mind that "New Jersey has long espoused a policy favoring the use of

consensual agreements to resolve marital controversies." Konzelman v.

Konzelman, 158 N.J. 185, 193 (1999). As contracts, MSAs should be enforced

according to the original intent of the parties. Pacifico v. Pacifico, 190 N.J. 258,

266 (2007).

Absent "compelling reasons to depart from the clear, unambiguous, and

mutually understood terms of" the MSA, a judge is generally bound to enforce

its terms. Quinn v. Quinn, 225 N.J. 34, 55 (2016). Our Supreme Court "has

observed that it is 'shortsighted and unwise for courts to reject out of hand

consensual solutions to vexatious personal matrimonial problems that have been

advanced by the parties themselves.'" Id. at 44 (quoting Konzelman, 158 N.J.

at 193). Consistent with New Jersey's "strong public policy favoring stability

A-0238-18T3
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of arrangements in matrimonial matters," courts will not "unnecessarily or

lightly disturb[]" MSAs that are fair and equitable. Ibid. (internal quotation

marks and citations omitted).

Notwithstanding the policy in favor of enforcing MSAs, courts have the

ability to modify marital agreements when changed circumstances occur due to

"the nature of some post-judgment issues, such as custody of children and

financial support for the family[.]" Id. at 46; see also Conforti v. Guliadis, 128

N.J. 318, 323 (1992) (noting that MSAs are unlike other contracts in that they

"must serve the strong public and statutory purpose of ensuring fairness and

equity in the dissolution of marriages"). "While courts are predisposed to

uphold [MSAs], this enforceability is subject to judicial supervisory control."

Patetta v. Patetta, 358 N.J. Super. 90, 95 (App. Div. 2003) (citation omitted);

see also N.J.S.A. 2A:34-23 (stating that child support orders "may be revised

and altered by the [judge] from time to time as circumstances may require").

In considering the equity of agreed-upon child support, courts must bear

in mind that the right of support belongs to the child, not the cust odial parent.

Pascale v. Pascale, 140 N.J. 583, 591 (1995); Ordukaya v. Brown, 357 N.J.

Super. 231, 241 (App. Div. 2003) (citations omitted); see also Blum v. Ader,

279 N.J. Super. 1, 4 (App. Div. 1994) (holding that the parties to a contract

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"cannot bargain away" their child's right to support); accord Patetta, 358 N.J.

Super. at 95 (noting that where the rights of children are concerned, agreements

are subject to "careful judicial scrutiny").

The party seeking to modify a support obligation included in an MSA

bears the burden of showing changed circumstances. Lepis, 83 N.J. at 146-48.

"Changed circumstances are not confined to events unknown or unanticipated at

the time of the agreement[,]" but courts must take care "not to upset the

reasonable expectations of the parties." J.B. v. W.B., 215 N.J. 305, 327 (2013).

Moreover, when one or both of the parties have contractually "agreed to

undertakings advantageous to a child beyond that minimally required," the

public policy in favor of enforcing such agreements "usually counsels against

modification." Ibid. (citations omitted); see also Lissner v. Marburger, 394 N.J.

Super. 393, 403 (Ch. Div. 2007) (noting that "if a party agrees to support a child

beyond that otherwise required, a court must favor the agreement, in the interests

of the child"); cf. Avelino-Catabran v. Catabran, 445 N.J. Super. 574, 584 (App.

Div. 2016) (holding child support modification warranted because the parties'

incomes had "changed dramatically" since they settled their divorce disputes).

Based on plaintiff's certification regarding the change in custody for the

son and the Arbitrator's findings regarding income, the judge (1) relieved the

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parties of their obligation under the MSA to each be responsible for child-care

costs during each party's parenting time, and (2) set a specific sum for child

support. Although the party's respective parenting time of the son admittedly

changed to some degree, the nature and extent of that change was in dispute and

not fully developed. The judge should have considered whether the extent of

the changed circumstances justified a departure from the MSA's terms.

Assuming that changed circumstances warranted some child support award, we

conclude there was inadequate consideration given to the appropriate amount

and to whether equitable principles warranted a deviation from the child support

guidelines.

Here, in the August 2018 order awarding child support to plaintiff, the

judge stated that "[s]ince September 2017, [p]laintiff has had physical custody

of the [son] . . . . Defendant acknowledged said change in custody during the

arbitration." This finding is not adequately supported by the record. Plaintiff

certified that the son lived with him "on a full-time basis" and visited defendant

in Long Island "primarily on alternate weekends, but usually only overnights on

Fridays." The judge accepted this fact, awarding plaintiff child support based

on the son spending only twenty-six overnights per year with defendant. In

addition, plaintiff asserted, and the judge accepted, that defendant admitted

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during the arbitration that plaintiff had physical custody of the son.

During the arbitration, however, defendant only admitted that the son was

staying with her part time, not that the son now spent virtually all of his time in

plaintiff's custody. Defendant specifically stated that the son spent "[t]hree out

of four weekends" per month in Long Island with her as of September 2017.

Also, the undisputed reason for the change was the distance of defendant's

residence from the son's school, which would only apply during weeks when the

school was in session.

Moreover, in opposing plaintiff's motion to reconsider the denial of child

support, defendant certified that: (1) the "window of time" when the son

"switched residences" was only approximately nine months, meaning that the

son's living arrangements changed again in June 2018; (2) during the time when

he "switched residences," the son spent "at least" one or two nights per week

with a friend, rather than at either parent's home; and (3) defendant paid many

of the son's living expenses even when he was not staying with her. The judge

accepted plaintiff's assertions without resolving the conflicting facts offered by

defendant and without considering that plaintiff failed to offer evidence as to

custody arrangements during school breaks and summer vacations. There were

no findings as to the duration and extent of the change in the son's custody, his

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summer living arrangements, or the payment of his living expenses when he

stayed overnight with friends.

There was no consideration of the MSA's terms nor whether the alleged

change in custody was sufficient to justify deviating from the parties' agreed-

upon child support arrangement. Plaintiff and the judge both cited a portion of

the April 2015 consent order for the proposition that the parties agreed support

would change if living arrangements changed. However, in context, the cited

portion of the April 2015 consent order does not support this.

The parties agreed in the MSA that neither would pay child support. They

then agreed in the April 2015 consent order that if the Arbitrator awarded child

support to defendant and, later, "the overnight arrangement as utilized in any

child support calculation change substantially[,]" then the parties would "consult

on recalculation." Since the Arbitrator made no award of child support, there

was no "child support calculation" that the parties were obliged to discuss and,

if necessary, recalculate. Thus, plaintiff's assertion that the parties affirmatively

agreed that any change in custody would trigger a right to child support is not

supported by the record.

Even assuming that plaintiff carried his burden of establishing that

changed circumstances warranted a deviation from the MSA and an award of

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child support, the judge erred in simply accepting the sum proposed by plaintiff

without analyzing the circumstances, the needs of the child, and equitable

considerations. The judge accepted the child support figure proposed by

plaintiff of $367 per week without discussion. Plaintiff certified that he arrived

at this amount using the child support guidelines. See Schedule of Child Support

Awards, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-F to R.

5:6A, www.gannlaw.com (2019) (Appendix IX-F Schedule). Plaintiff stated

that he was making the "concession" that he was "willing to accept that . . .

defendant pay child support based upon the . . . [g]uidelines alone[,]" even

though the parties' income exceeded the amount covered by them. The judge

was obliged to conduct an independent analysis of the appropriate award,

notwithstanding plaintiff's purported "concession."

Rule 5:6A provides that "when an application to establish or modify child

support is considered by the court," the child support guidelines "shall be

applied" but "may be modified or disregarded by the court only where good

cause is shown." Good cause exists, in part, where (1) there are "other relevant

factors which may make the guidelines inapplicable or subject to modification,"

or (2) an "injustice would result from the application of the guidelines." R.

5:6A.

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 The guidelines apply to the calculation of income when the parties have a

combined gross taxable income of a specified amount or less. Connell v.

Connell, 313 N.J. Super. 426, 431 (App. Div. 1998); Appendix IX-F Schedule.

Applying the Appendix IX-F Schedule, the specified amount is currently $3600

per week. When, as in this case, the parties' combined income exceeds $3600

per week, the trial court has to apply the guidelines up to the maximum; when

making an additional award, the amount should be determined by considering

the factors enumerated in N.J.S.A. 2A:34-23(a). Pascale, 140 N.J. at 595;

Connell, 313 N.J. Super. at 431. Courts should not simply extrapolate an

additional amount from the guideline because that method undermines the

statistical basis of the guidelines. See Pascale, 140 N.J. at 593; Walton v. Visgil,

248 N.J. Super. 642, 649 (App. Div. 1991); see also Considerations in the Use

of Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules,

Appendix IX-A(20)(b) to R. 5:6A, www.gannlaw.com (2019).

In Rubin v. Rubin, this court cautioned the trial judge against relying on

incomplete income information and simply imposing the amount sought by the

party requesting support. 188 N.J. Super. 155, 160 (App. Div. 1982). This court

explained:

We are dealing here with the support of a child. It may
well be that the income tax returns would have

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 indicated the propriety of [the] defendant being ordered
to pay more than the $100 a week child support
requested by the wife based on her uninformed
speculation as to what the defendant's income was.

[Ibid.]

This court noted that "the child's interests may well have been adversely

prejudiced by the precipitous action of the court" in refusing to allow and

consider all relevant evidence. Ibid.

Here, the judge erred in relying on the numbers provided by plaintiff and

his "concession" that he would take less than the amount to which he was legally

entitled. If changed circumstances warranted an award, it was the son, not

plaintiff, who was entitled to support. The judge had an affirmative duty to

obtain relevant financial information from both parties and, upon finding facts

sufficient to justify making an award, to determine an equitable sum above the

child support guidelines' maximum.

In addition, the judge's reliance on the Arbitrator's conclusion regarding

defendant's income was misplaced. The Arbitrator noted defendant's

approximate income of $200,000 for purposes of deciding whether she carried

her evidentiary burden to establish changed circumstances sufficient to warrant

an award of child support from plaintiff to her. The purpose of the Arbitrator's

approximation was to determine that "[d]efendant had higher earnings than

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[p]laintiff since the filing of [defendant's] motion[,]" thus rendering an award of

support to her inappropriate. The $200,000 amount referenced by the Arbitrator

was not intended to be a finding of defendant's specific income upon which to

base a particular calculation. The judge should have sought and considered

updated and accurate information regarding defendant's income rather than

solely relying on the Arbitrator's estimate.

We therefore vacate the child support award and remand for a plenary

hearing to allow the parties to present all relevant evidence regarding changed

circumstances, income, and expenses. We leave the details of the plenary

hearing to the judge's discretion.

V.

Defendant argues that the judge erred in ordering her child support

payments be made via income withholding without first requiring plaintiff to

file an application requesting that relief and giving defendant an opportunity to

respond. We see no error in that regard but understand that continued child

support payments will be dependent on the findings of fact and conclusions of

law on remand.

The applicable legal standards are set forth in N.J.S.A. 2A:17-56.8 and

Rule 5:7-4A(a). The statute provides, in pertinent part:

A-0238-18T3
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 A support provision contained in an order or judgment
issued by the court shall be paid by income withholding
unless the order or judgment specifically provides for
an alternative payment arrangement to which the
parties agree in writing or the obligor or obligee
demonstrates and the court finds good cause for
establishing an alternative arrangement.

[N.J.S.A. 2A:17-56.8.]

Similarly, Rule 5:7-4A(a) states: "[a]ll orders that include child support shall

be paid through immediate income withholding from the obligor's current and

future income, unless the parties agree in writing to an alternative arrangement,

or either party shows and the court finds good cause for an alternative

arrangement." Thus, by ordering income withholding, the judge committed no

error, but was simply implementing the statutory and rule requirements.

Nevertheless, defendant's contention that she was unaware income

withholding could be ordered is concerning. Both the statute and the Rule

placed the obligation on plaintiff to include written notice that income

withholding would result from a child support award to defendant in his motion

for child support and his motion for reconsideration. Similarly, the judge's order

should have included this notice. N.J.S.A. 2A:17-56.8 establishes:

Every complaint, notice or pleading for the entry or
modification of a support order and every court order
which includes child support shall include a written
notice to the obligor stating that the child support

A-0238-18T3
22
 provision of the order shall, and the health care
coverage provision may, as appropriate, be enforced by
an income withholding upon the current or future
income due from the obligor's employer or successor
employers and upon the unemployment compensation
benefits due the obligor and against debts, income, trust
funds, profits or income from any other source due the
obligor except as provided in section 3 of [L.] 1981, [c.]
417 . . . . The written notice shall also state that the
driver's license and professional or occupational
licenses, or recreational or sporting license in
accordance with [L.] 1996, [c.] 7 . . . held or applied for
by the obligor may be denied, suspended or revoked if:
the child support arrearage is equal to or exceeds the
amount of child support payable for six months; the
obligor fails to provide health care coverage for the
children as ordered by the court for six months; or the
obligor fails to respond to a subpoena relating to a
paternity or child support proceeding; or a warrant for
the obligor's arrest has been issued by the court due to
failure to pay child support as ordered, failure to appear
at a hearing to establish paternity or child support, or
failure to appear at a hearing to enforce a child support
order and said warrant remains outstanding. The
written notice shall also state that the amount of a child
support order and the provisions for health care
coverage may be reviewed and updated when there has
been a change in circumstances or in accordance with
section 5 of [L.] 1990, [c.] 92[.]

Correspondingly, Rule 5:7-4A(a)(3) provides:

Every complaint, notice or pleading for the entry or
modification of a child support order shall include the
following written notice: [i]n accordance with N.J.S.A.
2A:17-56.7a[], the child support provisions of a court
order are subject to income withholding on the effective
date of the order unless the parties agree, in writing, to

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 an alternative arrangement or either party shows and
the court finds good cause to establish an alternative
arrangement. The income withholding is effective
upon all types of income including wages from current
and future employment.

Plaintiff did not provide defendant with the required written notice when he

applied to the judge for child support, and the judge's order does not contain this

notice.

The lack of prior notice alone, however, should not invalidate a child

support award. That is particularly true where, as here, no prejudice resulted.

Although defendant contends that September 18, 2018 order was sent to her

employer, "causing violations of her firm protocol," nothing in the record

supports this. The income withholding order indicates that the identity of

defendant's employer was unknown, and defendant submits no proof as to her

employer's identity or protocols. Also, defendant offers nothing to suggest that

if she had prior notice and an opportunity to object, she could have shown good

cause to exempt her case from the general income withholding requirement.

VI.

Defendant argues that the judge erred in ordering her to pay child support

for the son until his twenty-third birthday. We conclude, especially because we

have vacated the child support award and have remanded for a hearing, that the

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record must be more fully developed on the question of whether the son was or

would remain unemancipated.

"One of the fundamental concepts in American society is that parents are

expected to support their children until they are emancipated, regardless of

whether the children live with one, both, or neither parent." Burns v. Edwards,

367 N.J. Super. 29, 39 (App. Div. 2004). "Emancipation⸻the conclusion of the

fundamental dependent relationship between parent and child⸺is not a self-

executing principle[]" and does not automatically occur when a child reaches a

certain age. Dolce v. Dolce, 383 N.J. Super. 11, 17 (App. Div. 2006); see also

Newburgh v. Arrigo, 88 N.J. 529, 543 (1982) (noting that "emancipation need

not occur at any particular age"). Nevertheless, "a rebuttable presumption

against emancipation exists prior to attaining the age of eighteen," and the fact

that a child has reached that age establishes prima facie proof of emancipation.

Dolce, 383 N.J. Super. at 17; see also N.J.S.A. 9:17B-3 (providing that, with

specified exceptions, "every person [eighteen] or more years of age shall in all

other matters and for all other purposes be deemed to be an adult and,

notwithstanding any other provision of law to the contrary, shall have the same

legal capacity to act and the same powers and obligations as a person [twenty-

one] or more years of age").

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 "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." Dolce,

383 N.J. Super. at 17 (alteration in original) (quoting Newburgh, 88 N.J. at 543).

"[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.'" Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div.

1997) (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)).

"This determination involves a critical evaluation of the prevailing

circumstances including the child's need, interests, and independent resources,

the family's reasonable expectations, and the parties' financial ability, among

other things." Dolce, 383 N.J. Super. at 18.

Once the age of majority is reached and the presumption of emancipation

arises, "the burden of proof to rebut the statutory presumption of emancipation

shifts to the party or child seeking to continue the support obligation." Ricci v.

Ricci, 448 N.J. Super. 546, 572 (App. Div. 2017). In this regard, "while parents

are not generally required to support a child over eighteen, his or her enrollment

in a full-time educational program has been held to require continued support."

Patetta, 358 N.J. Super. at 94; see also Newburgh, 88 N.J. at 543 (noting that "in

appropriate circumstances, the privilege of parenthood carries with it the duty

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to assure a necessary education for children"). In keeping with this duty,

"college costs are recognized as a form of support for unemancipated children."

Ricci, 448 N.J. Super. at 572; see also N.J.S.A. 2A:17-56.67(a) (providing that

"a child support obligation shall terminate by operation of law without order by

the court when a child reaches [nineteen] years of age unless" certain criteria,

including continued enrollment in specified educational institutions, are met).

The son had just turned nineteen when the judge ordered child support.

The August 2018 order and statement of reasons said nothing about the son's

emancipation or educational status. Indeed, the judge referenced "the parties'

minor child, [the son]," suggesting that she was unaware that the son had reached

the age of majority before plaintiff moved for support. The September 2018

order stated that child support would continue until the son's twenty-third

birthday "due to . . . his educational status effective" as of the time the May 2018

motion was filed.

However, the certifications plaintiff filed with the May 2018 motion and

his motion for reconsideration did not address the son's educational status at the

time, and there was no evidence as to when and under what circumstances he

might attend college. The only evidence regarding his education was

defendant's statement in the May 10, 2017 arbitration transcript that the son was

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then in the eleventh grade. Presumably, by the time plaintiff filed his motion

the following year, the son was preparing to graduate from high school.

Plaintiff notes that N.J.S.A. 2A:17-56.67(c) provides that "[a] parent

responsible for paying child support who disagrees with the court's decision to

continue child support beyond the date the child reaches [nineteen] years of age"

is free to move for relief from that obligation at a later date. The statute,

however, also provides that the "custodial parent" must "establish sufficient

proof" of one of the enumerated bases to continue child support after the age of

nineteen. Ibid. Here, the record must be more fully developed on this point.

Plaintiff argues that the support award's duration is appropriate because

"defendant does not contest the [son's] educational status." However, this puts

the onus on defendant to come forward with proofs that her adult-child does not

need continuing support for college, which impermissibly shifts the applicable

burden. Moreover, regardless of whether defendant offered evidence, the judge

was required to do a fact-specific analysis "including the child's need, interests,

and independent resources, the family's reasonable expectations, and the parties'

financial ability, among other things[,]" to determine the son's emancipation and

educational status. Dolce, 383 N.J. Super. at 18. This analysis was particularly

necessary here because the sole reason the judge ordered support was the

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purported change in the son's custody resulting from the son's continued

attendance at a New York City high school. In the absence of any evidence

regarding the son's college plans, there was no basis for the judge to conclude

that the son would spend more of his time in his father's residence after leaving

high school.

As to college costs, we see no evidence from which the judge could have

concluded that plaintiff needed the support order. Paragraph 5.5 of the MSA

provides for the parties to essentially split any post-secondary education

expenses, which establishes the parties had affirmatively agreed on how to

finance college for the son. There was no evidence to justify relieving either

party of this obligation under the MSA.

In sum, even assuming that plaintiff established changed circumstances

sufficient to justify deviating from the parties' agreement regarding child

support, the judge erred in ordering the continuation of that support until the

son's twenty-third birthday, absent proof regarding his emancipation and

educational status.

We therefore vacate the child support award and remand for a plenary

hearing, allowing the parties to present all relevant evidence on these points to

the judge.

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 VII.

The judge did not abuse her discretion by awarding attorneys' fees to

plaintiff on his motion leading to the financial awards in the June 2018 order.

A judge may, in his or her discretion, order a party to pay the successful

opposing party's attorneys' fees in family actions. R. 4:42-9(a)(1); R. 5:3-5(c).

When doing so, the judge should consider:

(1) the financial circumstances of the parties; (2) the
ability of the parties to pay their own fees or to
contribute to the fees of the other party; (3) the
reasonableness and good faith of the positions
advanced by the parties both during and prior to trial;
(4) the extent of the fees incurred by both parties; (5)
any fees previously awarded; (6) the amount of fees
previously paid to counsel by each party; (7) the results
obtained; (8) the degree to which fees were incurred to
enforce existing orders or to compel discovery; and (9)
any other factor bearing on the fairness of an award.

[R. 5:3-5(c); see also Mani v. Mani, 183 N.J. 70, 94-95
(2005); N.J.S.A. 2A:34-23 (providing that the judge
"shall consider the factors set forth in the court rule on
counsel fees, the financial circumstances of the parties,
and the good or bad faith of either party").]

Fee awards should be disturbed "only on the rarest occasions, and then only

because of a clear abuse of discretion." Rendine v. Pantzer, 141 N.J. 292, 317

(1995). A trial judge's failure to consider the appropriate factors, make the

required findings, and state its conclusions of law, constitutes a clear abuse of

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discretion. Saffos v. Avaya Inc., 419 N.J. Super. 244, 270-71 (App. Div. 2011).

Ordinarily, the purpose of a counsel fee award in a matrimonial action is to

equalize the relative financial resources of the parties. J.E.V. v. K.V., 426 N.J.

Super. 475, 493 (App. Div. 2012).

The judge analyzed the relevant factors. She awarded counsel fees to

plaintiff based on her findings that defendant acted in bad faith and that she had

the ability to pay because defendant earned "significantly more." Thus, the

judge's finding that defendant had the ability to pay and earned "significantly

more" than plaintiff, coupled with her finding of bad faith, provided a sufficient

basis to exercise her discretion to award attorneys' fees.

Bad faith in the context of a fee application "is not simply bad judgment

or negligence[;] rather it implies the conscious doing of a wrong because of

dishonest purpose or moral obliquity." Borzillo v. Borzillo, 259 N.J. Super. 274,

292 (Ch. Div. 1992) (internal quotation marks and citation omitted). "'Bad faith'

has also been defined as an intent to mislead or deceive another, or a neglect or

refusal to fulfill some duty or contractual obligation not prompted by some

honest mistake as to one's rights or duties, but by some interested or sinister

motive." Ibid. (citing Black's Law Dictionary 127 (5th ed. 1979)).

Here, the judge disbelieved defendant's explanation for failing to file a

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timely reply to the May 2018 motion. Additionally, the judge found that

defendant failed to pay (1) the amounts ordered in three arbitration orders that

were confirmed by the trial judge, and (2) plaintiff his share of the GS

investment account. Moreover, defendant agreed to indemnify plaintiff for his

attorneys' fees should she "willfully fail to abide by any terms" of the MSA. The

judge found that defendant's "willful violation of the MSA resulted in

[p]laintiff's counsel fees being significantly protracted in this matter. "

Defendant does not dispute that the MSA obliged her to pay plaintiff his share

of the GS account and that she willfully failed to do so.

To the extent that we have not specifically addressed any of defendant's

remaining arguments, we conclude they lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

We vacate the child support award and remand for a plenary hearing

consistent with this opinion. Along with all other required findings and

conclusions of law, the judge should determine whether child support is

warranted, and if so, the amount of support and whether it should continue until

any specific age. We otherwise affirm.

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