LISA FORMOSO VS. MICHAEL FORMOSO (FM-19-0251-00, SUSSEX 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NOT FOR PUBLICATION WITHOUT THE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-3726-18T1

LISA FORMOSO, n/k/a
LISA KING,

Plaintiff-Respondent,

v.

MICHAEL FORMOSO,

Defendant-Appellant.
___________________________

Submitted February 25, 2020 – Decided April 17, 2020

Before Judges Fisher and Gilson.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Sussex County,
Docket No. FM-19-0251-00.

Dario, Albert, Metz, & Eyerman, LLC, attorneys for
appellant (Shelley D. Albert, of counsel; Paul Joseph
Concannon, on the briefs).

Lisa Formoso, respondent pro se.

PER CURIAM
 In this post-judgement matrimonial dispute, defendant, the former

husband, appeals from a February 15, 2019 order denying his motion to

retroactively change child support and granting plaintiff's cross-motion to

compel him to pay over $43,000 for their eldest daughter's college expenses.

Defendant also appeals from an April 12, 2019 order denying his motion for

reconsideration. Having reviewed the parties' arguments in light of the record

and law, we are constrained to remand for a plenary hearing on the issues of

child support and college expenses.

I.

The parties were married in May 1983 and divorced in August 2001.

There were two children born of their marriage: a daughter born in July 1994,

and a daughter born in March 1998. Defendant has remarried and has two

additional children with his new wife.

At the time of their divorce, the parties entered into a Property Settlement

Agreement (PSA), which was incorporated into their judgment of divorce.

Under the PSA, defendant was to pay plaintiff child support, which over the

years was increased to $304 per week. The PSA also provided that the parties

would pay for their children's college expenses based on their financial situation

at the time that the children attended college. In that regard, the PSA states:

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 (a) In the event that the children are able and inclined to attend
college or post high school career training, Husband and Wife shall
pay for college or career training relative to their ability to pay at
that time, and proportionate to the parties' respective incomes at the
time, and only after all savings and/or other accounts held for the
children's college expenses are exhausted, as well as after all
scholarships, grants, and financial aid is applied for and received.
The parties shall fully cooperate with one another and shall assist
the children in obtaining financial aid, grants, and loans for the
benefit of the children's training and/or college expenses.

(b) Wife shall provide Husband upon reasonable request, copies of
all bank statements, and/or accounts held for the benefit of the
children's college and/or post high school career training.

(c) In the event the children attend a community college, four-year
college, university[,] or career training and continue to reside at
home, child support shall not be reduced and Husband shall
continue to pay child support directly to Wife.

(d) In the event the child shall reside on campus or in off-campus
housing, or otherwise away from home, the issue of child support
shall be renegotiated.

The oldest daughter attended Rutgers University from September 2012 to

May 2016. In December 2018, defendant moved to declare the oldest daughter

emancipated as of June 2016, and to retroactively reduce his child support

obligation. Defendant certified that he was not seeking the repayment of any

child support already paid; rather, he requested "an offset" against his child

support for his second daughter until she was emancipated. He also contended

that there had been a change of circumstances because he was remarried, he had

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two additional children with his current wife, and he believed that plaintiff's

income had increased.

Plaintiff opposed defendant's motion and cross-moved to compel

defendant to pay over $16,000 for an alleged underpayment of child support, to

pay his share of the oldest daughter's college expenses, and to pay her attorney's

fees. Plaintiff confirmed that the oldest daughter had graduated from Rutgers in

May 2016. She also certified that the daughter's total tuition was just over

$102,000, the daughter had received $15,287 in scholarships and grants, and the

daughter had incurred just over $72,800 in loans. Plaintiff also certified that as

of January 2019, she had paid just over $13,800 of the daughter's tuition and the

balances on the daughter's loans were approximately $57,000. Plaintiff also

certified that she had discussed college expenses with defendant before and

while the oldest daughter was attending Rutgers, but defendant refused to cosign

for any loans or provide any financial assistance.

In response to defendant's motion, plaintiff certified that the parties had

entered into a consent order dated January 17, 2017. She attached a copy of that

order, which had been entered in Bergen County. The order stated:

With the consent of both parties, [the oldest daughter] is
emancipated effective August 31, 2016. Child support for the
remaining minor child . . . is to continue at a rate of $304.00
per week effective August 31, 2016. Both parties consent to

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 set arrears at a zero balance effective 11/03/2016. Probation
to adjust the account accordingly.

Defendant, in reply, submitted a certification disputing facts raised by

plaintiff. Regarding the January 17, 2017 consent order, defendant certified that

he had never seen that order. Specifically, he stated:

I have never seen this order. The representations contained
in paragraph twenty-three that I consented to certain
provisions of this Order are untrue.

....

I can attest to this court however that I had no knowledge of
this purported Order, did not participate in the same, and until
this application was made, I never saw this order.

In opposition to plaintiff's cross-motion for college expenses, defendant

certified that there had been limited discussions about the daughter's college

plans and that he had informed plaintiff that he could not afford to pay for

college and, thereafter, plaintiff had not requested him to contribute to the

college expenses. Defendant also contended that plaintiff should be barred

under principles of laches and equitable estoppel from seeking college expenses

that had been incurred more than seven years prior to her cross-motion. Finally,

defendant contended that a comparison of his income to plaintiff's income

demonstrated that he could not pay for the oldest daughter's college expenses.

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 Without conducting a hearing or hearing oral argument, the family court

denied defendant's motion and granted, in part, plaintiff's motion. Specifically,

in an order dated February 15, 2019, the family court (1) denied defendant's

request to retroactively emancipate the oldest daughter, finding that she had

been emancipated on August 31, 2016, by the January 17, 2017 consent order;

(2) denied defendant's request to retroactively reduce his child support; (3)

granted plaintiff's request for college expenses; and (4) ordered defendant to pay

$43,375.48 of the oldest daughter's college expenses. The order stated that

defendant was to make the payment for college expenses within 180 days of

February 15, 2019. The family court also denied plaintiff's request to compel

defendant to pay the alleged underpayment of child support and her attorney's

fees.

The court explained the reasons for its ruling in a written statement

attached to its order. With regard to defendant's motion, the court noted that th e

January 17, 2017 order was issued in Bergen County, and without resolving any

of the disputed issues, accepted that order as a binding court order. In addressing

plaintiff's request for college expenses, the court accepted plaintiff's assertions

set forth in her certification, the court then looked at the parties' incomes in

2018, as reflected in the Case Information Statements submitted by the parties,

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and found that defendant's gross income was just over $124,800 and plaintiff's

gross income was just over $128,500. Thus, the court found that it was

appropriate to direct that the parties equally share the college expenses. Based

on the submissions from plaintiff, the court found that the total tuition expense s

for the oldest daughter were $102,037.95, but the daughter had received

scholarships and grants in the amount of $15,287, and therefore each of the

parents was responsible for $43,375.48.

Defendant moved for reconsideration and submitted a certification

augmenting his contentions that he was not aware of the January 17, 2017

consent order and disputing his obligations to pay for the oldest daughter's

college expenses. Again, without holding a hearing or hearing oral argument,

the family court denied that motion in an order dated April 12, 2019. The court

again issued a written statement of reasons in support of its ruling.

II.

Defendant now appeals from the provisions of the February 15, 2019 order

denying his motion. He also appeals from the provisions of the April 12, 2019

order denying his motion for reconsideration. He asserts eight arguments that

can be distilled into two basic points. First, he contends that he was entitled to

a plenary hearing. Second, he contends that the family court did not conduct the

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appropriate analysis in determining his share of the oldest daughter's college

expenses and did not consider his inability to pay those expenses, particularly

within the 180 days ordered by the family court. Given the disputed facts set

forth in the parties' certifications, we remand this matter so the family court can

hold an appropriate plenary hearing.

While we normally give substantial deference to a family court's

determinations concerning contributions for college expenses, we owe no such

deference, if there are disputed issues of fact and the court conducts no

evidentiary hearing. Avelino-Catabran v. Catabran, 445 N.J. Super. 574, 588

(App. Div. 2016); Gottlib v. Gottlib, 399 N.J. Super. 295, 308-09 (App. Div.

2008). We apply contract principles to the interpretation of a PSA and,

accordingly, review those issues de novo. Pacifico v. Pacifico, 190 N.J. 258,

265-66 (2007).

Initially, it is helpful to identify the issues on appeal. Defendant has

appealed from the portions of the orders denying the request to retroactively

change his child support obligations. He also disputes the provisions of the

orders requiring him to pay just over $43,000 in college expenses for the oldest

daughter. Plaintiff did not file a cross-appeal so none of her requests for relief

are being challenged. Moreover, in their briefs the parties both agree that the

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second daughter is now emancipated and there are no disputes concerning any

costs incurred for her post-high school education or training.

Resolution of defendant's request to retroactively change his child support

obligations and resolution of plaintiff's request for college expenses both

involve disputed issues of material fact. The issue concerning child support is

relatively narrow. Plaintiff relies on the January 17, 2017 consent order.

Defendant disputes that the order is a viable order. Accordingly, the family

court simply needs to hold a short hearing to determine whether the January 17,

2017 consent order was entered and whether it is enforceable. The parties'

divorce and their motions were filed in Sussex County. No one explains in the

current record why the January 17, 2017 order was entered in Bergen County.

In that regard, we note that the Bergen County order contains the Sussex County

docket number. More particularly, the family court needs to hold a short

hearing to confirm that the order was entered and to assess defendant's

credibility in his denial of knowledge of that order.

In remanding this matter, we note that normally a court would not need a

hearing to verify a court order. Here, however, the family court itself

acknowledged that it had no knowledge of the January 17, 2017 consent order

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and therefore the order cannot simply be accepted as a valid and enforceable

court order.

In remanding this matter, we express no view on whether defendant may

be entitled to a retroactive adjustment in child support if the court finds that the

January 17, 2017 order is not a binding order. New Jersey generally prohibits

retroactive modifications of existing child support orders to a date prior to the

filing date of a motion for such relief, or forty-five days earlier upon written

notice. N.J.S.A. 2A:17-56.23(a). Nevertheless, we have previously held that

the anti-retroactivity statute does not prevent a retroactive termination of child

support when a child is retroactively emancipated. See Bowens v. Bowens, 286

N.J. Super. 70, 73 (App. Div. 1995) (permitting retroactive emancipation and

termination of child support where an obligor sought a retroactive cancelation

of unpaid arrears following the date of emancipation); see also Mahoney v.

Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995) (emancipating and

terminating child support for two children two years apart in age, with each

emancipation effective retroactive to each child's eighteenth birthday and

holding "[w]here there is no longer a duty of support by virtue of a judicial

declaration of emancipation, no child support can become due"). There are also

issues of fairness and equity to be considered in determining whether defendant

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is entitled to modification of a previously paid child support obligation. See

Harrington v. Harrington, 446 N.J. Super. 399, 411 (Ch. Div. 2016).

Turning to the college expenses, there are several issues in dispute. First,

defendant contests whether he was fully informed of the plans of the oldest

daughter to attend college and how college expenses were going to be paid.

Second, he certifies that he informed plaintiff that he would not have the

financial ability to pay for any of the oldest daughter's college expenses and

thereafter plaintiff never sought any contributions from him. While plaintiff

clearly disputes both of those points, those material issues need to be addressed

at an evidentiary hearing.

The family court also needs to evaluate the appropriate factors in

apportioning the child's college expenses. See Newburgh v. Arrigo, 88 N.J. 529,

545 (1982); N.J.S.A. 2A:34-23(a). The family court did not balance all the

factors identified in Newburgh and it needs to do so considering the disputed

issues. See Gac v. Gac, 186 N.J. 535, 543-45 (2006).

Moreover, in determining defendant's obligation to pay college expenses

the court, consistent with the parties' PSA, will need to look at the parties'

respective incomes "at that time." In other words, the court will need to look at

the parties' incomes in 2012 through 2016. In the order entered on February 15,

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2019, the family court relied on the parties' incomes as of 2018. Accordingly,

the parties will need to submit evidence of their income in each of the years

during which their daughter attended Rutgers University and the family court

will then need to make an appropriate determination using those income levels.

Finally, we note that the court continues to have substantial discretion in

terms of controlling the exchange of information in connection with the plenary

hearing and the scope of that hearing. As already discussed, some of the issues

do not appear to require a lengthy or detailed hearing.

In summary, we vacate paragraphs one, two, and five of the February 15,

2019 order and paragraph one of the April 12, 2019 order. We remand for a

plenary hearing.

Vacated and remanded consistent with this opinion. We do not retain

jurisdiction.

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