COLEEN FIORE VS. PETER FIORE (FM-12-2115-09, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-4672-17T4
COLEEN FIORE,

Plaintiff-Respondent,

v.

PETER FIORE,

Defendant-Appellant.
______________________________

Submitted May 27, 2020 – Decided July 6, 2020

Before Judges Yannotti, Currier and Firko.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FM-12-2115-09.

DiRienzo & DiRienzo, PA, attorneys for appellant
(Joseph DiRienzo, on the brief).

Drisgula & Thatcher, LLC, attorneys for respondent
(Candice L. Drisgula and Alisa H. Thatcher, on the
brief).

PER CURIAM
 Defendant Peter Fiore appeals from a January 2, 2018 Family Part order

that denied his motion to terminate or reduce his alimony obligation; eliminate

or reduce child support; reimburse him for losses sustained due to child

dependency tax deductions taken by plaintiff for a portion of his son's college

expenses; and for the Mercury Mountaineer lease and buyout payments. He also

appeals from a May 8, 2018 order denying reconsideration and granting the

parties' motions to fix his alimony arrears in accordance with the January 2,

2018 order.

After our careful review of the record, we affirm except to remand to the

Family Part judge for reconsideration of the child support termination date.

I.

The following factual history is derived from the motion record. After

almost twenty-one years of marriage, plaintiff Colleen Fiore and defendant

divorced in January 2010. They had one child, Peter, born in 1996. The final

dual judgment of divorce (JOD) incorporated their Matrimonial Settlement

Agreement (MSA), which resolved issues arising from the dissolution of the

marriage.

The MSA provided, among other things, that defendant, a college

graduate, would pay plaintiff permanent alimony of $31,400 per year or $550

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per week, plus two additional $1400 payments in June and October each year.

Alimony was premised upon defendant earning "approximately $80,000 from

his Fire Department employment" and an imputed "$25,000 per year income

from Environmental Pest Control LLC (termite business) for an imputed weekly

income of [$2019]." Plaintiff was imputed an income of $16,640 annually or

$320 per week. The MSA also provided that upon defendant's retirement from

the fire department, he could apply for a recalculation of alimony and plaintiff

"does not consider such retirement a change of circumstances and he will be le ft

to his proofs."

At the time of divorce, defendant was actively employed as a firefighter

at the Rahway Fire Department and working in his termite business. Plaintiff

was a stay-at-home mom during the marriage and worked part-time for a florist.

At times she was unemployed due to health issues. Plaintiff has a high school

education and no significant vocational training.

Defendant agreed to pay $154 per week for child support until Peter was

emancipated. Peter was enrolled at Montclair State University when the parties

divorced. The parties agreed that defendant had the right to claim the child as a

dependency deduction on his federal and state returns for tax year 2009. The

MSA included a handwritten provision that indicated the parties might change

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this section should the need arise. Defendant argued he was entitled to claim

Peter as a dependent on his 2010 and 2012 tax returns and that plaintiff

improperly took the deductions in those years. Consequently, defendant claimed

he was required to pay additional taxes of $1500 in 2010 and $3000 in 2012.

After the parties divorced, defendant continued working as a firefighter at

the Rahway fire department, which he joined in 1989. He also continued to

operate his termite business. The service requirement for retirement at the fire

department was twenty-five years. Defendant contended it was the parties'

mutual understanding he would retire after twenty-five years of service at the

age of fifty-nine.

During his time with the department, defendant received between 300 and

350 fire calls and responded to three to five active scenes per month. H is

responsibilities included entering burning buildings, carrying the hose line into

fires, and assisting victims out of cars and buildings.

In 2009, defendant suffered an asthma attack while responding to a

structure fire. He was evaluated by the city's doctors who referred him to Dr.

Adam J. Rowen, a pulmonologist. Dr. Rowen prescribed prednisone and

corticosteroids, which provided short-term relief and enabled defendant to

continue working as a firefighter. Over time, defendant claimed his condition

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progressively worsened and by 2014, he complained of persistent shortness of

breath, which prevented him from performing his duties as a firefighter.

In December 2014, defendant advised plaintiff he planned to retire as a

firefighter after surpassing twenty-five years of service, attempted pulmonary

rehabilitation, and unsuccessful use of medications. According to defendant, he

had continued working despite his medical issues in order to receive his full

sixty-five percent pension benefit. Because of his seniority, he was able to "take

it easy a little bit."

Thereafter, defendant consulted Dr. John Penek, a pulmonologist, for a

second opinion. After an evaluation with Dr. Penek on June 5, 2015, defendant

was diagnosed with moderately severe obstructive lung disease—"a category of

lung problems associated with air flow on expiration only." Dr. Penek

conducted a pulmonary function study, which revealed defendant was operating

at sixty-nine percent normal lung function for a person of his age. To a degree

of medical certainty, Dr. Penek opined "that [defendant] was permanently

disabled from functioning as a firefighter." Dr. Penek concluded that defendant

was incapable of performing his job "safely," and retirement was necessary.

In 2015, the termite business had a net income of $32,353 and in 2016, a

net income of $24,989, which defendant explained was negatively impacted by

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his mother's passing. Currently, defendant's only assets are his business income

and firefighter's pension. He does not own any real property or any other assets.

In January 2015, defendant reiterated his plans to retire to plaintiff, but the

parties could not agree on a modification of alimony.

On September 22, 2015, defendant filed a motion seeking termination or

modification of alimony, elimination or recalculation of child support,

reimbursement for Peter's college expenses, Mountaineer lease and buy-out

payments, and loss of dependent income tax deductions for Peter. In his moving

certification, defendant contended he was entitled to relief because he could no

longer work as a firefighter due to his pulmonary diagnosis, which rendered him

"permanently disabled." He argued his retirement was a changed circumstance

warranting termination or modification of his alimony obligation.

Defendant also contended he was supporting Peter and paid 100% of his

college tuition, room, board, health insurance, car payments, car insurance, cell

phone, and provided him with a debit card for pocket expenses. In May 2016,

Peter began residing in an off-campus apartment. Defendant claimed plaintiff

was receiving a windfall from the child support payments. As per the terms of

the MSA, defendant argued that plaintiff should be required to contribute

towards Peter's college costs. Defendant asserted that plaintiff was responsible

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for the Mountaineer payments under the terms of the MSA. In addition,

defendant sought a credit for plaintiff claiming Peter as a tax exemption each

year for the four years before he entered college instead of alternating the

exemption.

On October 31, 2015, defendant voluntarily retired at the age of fifty-nine

from his firefighter position after nearly twenty-seven years of service. Plaintiff

was fifty-three years old at the time. Defendant did not seek other employment

and intended his termite business to be his sole source of income.

Plaintiff opposed defendant's motion and filed a cross-motion on January

20, 2016. She requested the court deny defendant's application and find him in

violation of litigant's rights for failing to pay alimony and child support while

his motion was pending. She also sought an increase in alimony payments based

on her limited income as a "grunt worker" in a florist shop and clerical jobs. She

contended that unresolved knee and lower back injuries prevented her from

standing for long periods of time.

Plaintiff has a high school education and worked as a bartender and florist

prior to the marriage. Her mother provides her with support. Plaintiff also

asserted that on October 2, 2015, she underwent surgery to remove a cervical

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spine tumor and she suffers from emphysema, chronic bronchitis, thyroid

disease, type two diabetes, and sciatica. Plaintiff also sought counsel fees.

On February 19, 2016, the judge entered an order, reserving all economic

issues other than child support, pending referral to a post-judgment early

settlement panel and a plenary hearing. As to child support, the judge

determined that a recalculation was warranted; he suspended defendant's child

support obligation; and requested additional submissions from the parties.

On June 29, 2016, the judge entered an order denying defendant's motion

to suspend his support obligations and established pendente lite spousal support

of $696 per month. In October 2016 and September 2017, the Family Part judge

conducted a plenary hearing on the motions. Both parties testified. Dr. Penek,

a realtor, and two fact witnesses also testified. On December 28, 2017, the judge

issued a twenty-five-page written opinion followed by a memorializing

preliminary order on January 2, 2018 and a final order on May 8, 2018.

The judge denied defendant's motion for termination or modification of

alimony, noting "by his actions, [defendant] voluntarily placed himself in the

financial position he now confronts and engaged in 'self-help.'" As pointed out

by the judge, the testimony of Dr. Penek was "unpersuasive" and incredulous.

The judge determined that defendant "did not need to retire;" "exhibited few

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difficulties performing his duties managing a pest control business and has a

degree in urban planning." Defendant's treating doctor did not testify, and his

medical records showed he went to the doctor less than once a year.

On the other hand, "[p]laintiff's needs remain the same as before

[d]efendant's retirement." The judge observed plaintiff ambulates with a cane,

wears a neck brace at times, and has trouble breathing. She is ineligible for

Social Security Disability benefits and owns a house with a $55,000 lien due to

defendant at the time of sale.

In reaching his decision, the judge considered the factors under N.J.S.A.

2A:34-23(j) and found plaintiff experienced difficulty saving for retirement.

Plaintiff receives $31,400 per year in alimony and a share of defendant's

pension, which equals $23,040. An imputation of $16,640 was assessed, but

plaintiff has no additional income. The judge excluded the assets distributed by

way of equitable distribution in his analysis.

The judge terminated defendant's child support obligations as of

September 1, 2017 and denied defendant's motion for reimbursement of lease

and buy-out payments and the lost income from the missed dependent tax

deductions in 2010 and 2012. The judge denied plaintiff's cross-motion to

increase alimony and for counsel fees. This appeal followed.

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 On appeal, defendant contends the judge erred: (1) by finding there was

no substantial change of circumstances warranting a termination or modification

of alimony; (2) by finding child support should terminate effective September

1, 2017 instead of May 2016; (3) by limiting his right of reimbursement for

funds paid towards the lease and buy-out of the Mercury Mountaineer; and (4)

in denying his right to recoup his losses by plaintiff improperly claiming the

parties' son as a tax deduction.

II.

We turn first to defendant's argument that the Family Part judge erred by

denying his motion to terminate or modify alimony. Defendant contends he

presented "undisputed" evidence that he had a medical condition, which forced

his early retirement from his position as a firefighter. He contends the judge

erred by finding he did not need to retire for medical reasons and could have

continued working as a firefighter, but instead chose to retire after he became

eligible for full retirement benefits and failed to seek a comparable position.

We note initially that the scope of our review of Family Part orders is

limited. The trial court's factual findings "are binding on appeal when supported

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

411-12 (1998). However, a trial court's legal conclusions are not entitled to

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special deference and are reviewed de novo. Clark v. Clark, 429 N.J. Super. 61,

71 (App. Div. 2012).

New Jersey has a long-standing public policy favoring the use of

voluntary agreements to resolve marital controversies. Konzelman v.

Konzelman, 158 N.J. 185, 193 (1999). "[F]air and definitive arrangements

arrived at by mutual consent should not be unnecessarily or lightly disturbed."

Id. at 193-94 (quoting Smith v. Smith, 72 N.J. 350, 358 (1977)). However, a

court should enforce a matrimonial agreement only if it is "fair and equitable."

Lepis v. Lepis, 83 N.J. 139, 148 (1980).

Moreover, "such agreements should receive continued enforcement

without modification only so long as they remain fair and equitable." Id. at 148-

49. Our courts have the equitable power to modify alimony and support orders

at any time. Id. at 145 (citing N.J.S.A. 2A:34-23). Alimony and support orders

are subject to modification based "on a showing of changed circumstances." Id.

at 146 (citations omitted). We "must give due recognition" of the broad

discretion afforded to trial judges in addressing motions to modify alimony.

Reese v. Weis, 430 N.J. Super. 552, 571-72 (App. Div. 2013) (quoting Donnelly

v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009)). The court is required

to examine and weigh a list of objective considerations when it reviews an

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alimony termination or modification request for an obligor who has retired.

Landers v. Landers, 444 N.J. Super. 315, 321 (2016).

"Alimony is an economic right that arises out of the marital relationship"

and allows a spouse to continue according to "the standard of living enjoyed by

the parties prior to their separation." Quinn v. Quinn, 225 N.J. 34, 48 (2016)

(quotation marks and citations omitted). The award of "[a]limony in New Jersey

is primarily governed by statute." Gayet v. Gayet, 92 N.J. 149, 150 (1983); see,

N.J.S.A. 2A:34-23 ("[A]fter judgment of divorce or dissolution or maintenance,

. . . the court may make such order as to the alimony or maintenance of the

parties, . . . as the circumstances of the parties and the nature of the case shall

render fit, reasonable and just . . . ."). Family courts "have the equitable power

to establish alimony and support orders in connection with a pending

matrimonial action, or after a judgment of divorce or maintenance . . . ." Crews

v. Crews, 164 N.J. 11, 24 (2000).

Because alimony orders define "only the present obligations of former

spouses[,]" those determinations are "always subject to review and modification

on a showing of 'changed circumstances.'" Ibid. (quoting Lepis v. Lepis, 83 N.J.

139, 146 (1980)); see also N.J.S.A. 2A:34-23 ("[Alimony orders] may be revised

and altered by the court from time to time as circumstances may require."). The

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moving party "bears the burden of making a prima facie showing of changed

circumstances" to initiate this modification. Id. at 28 (quoting Miller v. Miller,

160 N.J. 408, 420 (1999)). Changed circumstances generally means a recent

inability to support himself or herself. Lepis, 83 N.J. at 157.

If the alimony order pre-dates September 10, 2014, the request for

modification or termination must be reviewed under N.J.S.A. 2A:34-23(j)(3).

That section expressly requires "[i]n making its determination, the court shall

consider the ability of the obligee to have saved adequately for retirement . . .

[and] whether the obligor, by a preponderance of the evidence, has demonstrated

that modification or termination of alimony is appropriate . . . ." N.J.S.A. 2A:34-

23(j)(3). The obligee's ability to have adequately saved is set "apart from other

considerations and require[s] . . . explicit analysis." Landers, 444 N.J. Super. at

324.

The statute requires the court to consider other factors, which include:

(a) The age and health of the parties at the time of the
application;

(b) The obligor's field of employment and the generally
accepted age of retirement for those in that field;

(c) The age when the obligor becomes eligible for
retirement at the obligor's place of employment,
including mandatory retirement dates or the dates upon

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 which continued employment would no longer increase
retirement benefits;

(d) The obligor's motives in retiring, including any
pressures to retire applied by the obligor's employer or
incentive plans offered by the obligor's employer;

(e) The reasonable expectations of the parties regarding
retirement during the marriage or civil union and at the
time of the divorce or dissolution;

(f) The ability of the obligor to maintain support
payments following retirement, including whether the
obligor will continue to be employed part-time or work
reduced hours;

(g) The obligee's level of financial independence and
the financial impact of the obligor's retirement upon the
obligee; and

(h) Any other relevant factors affecting the parties'
respective financial positions.

[N.J.S.A. 2A:34-23(j)(3)(a) to (h).]

Defendant argues that the Family Part judge improperly determined that

he did not establish a prima facie case of changed circumstances. He also

contends the judge failed to consider relevant factors and wrongfully rejected

Dr. Penek's testimony.

We do not agree that the judge erred in his analysis of the statutory factors.

The judge's ruling considered each of the factors under N.J.S.A. 2A:34-23(j)(3).

Moreover, the judge summarized Dr. Penek's testimony as follows:

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 Defendant called John Penek as an expert witness
concerning his alleged pulmonary disability. The
plaintiff stipulated to this expert's qualifications. Dr.
Penek was hired by the defendant and earned $2500 for
testimony and $500 for an initial exam. The purpose of
this presentation was an effort to persuade the court that
[defendant] is no longer able to work as a paid
firefighter in Rahway. . . . However, Dr. Penek testified
that [defendant's] history demonstrated shortness of
breath and a generalized difficulty in performing his job
duties.

According to Dr. Penek, [defendant] had difficulty
climbing stairs, suffered some pulmonary obstruction,
and had decreased air entry. In short, Dr. Penek found
[defendant] permanently disabled as a firefighter who
could not carry out his daily responsibilities. A
pulmonary function test [was] performed on [April 14,
2015] finding no acute pulmonary disease with clear
lungs. There was no functional capacity evaluation
administered. Dr. Penek . . . never treated [defendant]
and was not retained by the Rahway Fire Department
for any disability alleged by [defendant].

It is undisputed that defendant had suffered from pre-
existing asthma and allergies. [He] was not asked or
directed to retire by any Rahway official but tendered a
voluntary retirement after [twenty-five] years of
service.

The judge also stated "[a] pulmonary function test performed on [April

14, 2015] [found] no acute pulmonary disease with clear lungs." The judge

found defendant did not suffer from an "acute" pulmonary disease. The judge

concluded Dr. Penek's testimony was "unpersuasive."

A-4672-17T4
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 As noted in City of Long Branch v. Liu, 203 N.J. 464, 491 (2010), a fact-

finder is free to accept or reject, fully or partially, the opinions of qualified

experts. Based upon our deferential standard of review, we conclude that the

judge did not abuse his discretion by rejecting Dr. Penek's testimony and

denying defendant's motion to terminate or modify alimony.

Defendant also contends the judge erred in his analysis under N.J.S.A.

2A:34-23(j)(2) and (3) by concluding his retirement was voluntary and not based

on health-related reasons. We disagree.

N.J.S.A. 2A:34-23(j)(2) specifically addresses situations where an obligor

"seeks to retire prior to attaining the full retirement age . . . ." Id. at 322.

According to the statute, "full retirement age" means "the age at which a person

is eligible to receive full retirement for full retirement benefits under section

216 of the federal Social Security Act (42 U.S.C. § 416)." N.J.S.A. 2A:34-23.

Under that Act, defendant would not become eligible for full retirement

benefits until February 25, 2024. See 42 U.S.C. § 416 (l)(1)(E) ("[W]ith respect

to an individual who attains early retirement age after December 31, 2021,

[sixty-seven] years of age."). Subsection (j)(3), alternatively, addresses "[w]hen

a retirement application is filed in cases in which there is an existing final

alimony order or enforceable written agreement established prior to the effective

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date of this act," which is September 10, 2014. Id. at 321 (citing N.J.S.A. 2A:34-

23(j)(3)).

The judge considered defendant's application under subsections (j)(2) and

(3). The latter subsection requires that "[i]n making its determination, the court

shall consider the ability of the obligee to have saved adequately for retirement

as well as the following factors in order to determine whether the obligor, by a

preponderance of the evidence, has demonstrated that modification or

termination of alimony is appropriate . . . ."

On this factor, the judge found

Plaintiff has experienced difficulty saving for
retirement. The [p]laintiff receives a share of
[d]efendant's pension which equals [$23,040]. In
addition, she receives alimony in the amount of
[$31,400] per year. Although $16,640 was imputed to
[plaintiff] by a previous judge, she has no other income.
The court finds that . . . [p]laintiff is a high school
graduate with limited work skills. She owns a home
with a modest lien to [defendant] but relies upon her
mother for financial support, from time to time. It is
unlikely that [plaintiff] will be successful in the
workplace. Plaintiff failed to produce expert testimony
concerning her alleged medical condition. Therefore,
the court is unable to make a reasonable determination
concerning any medical problem or disability allegedly
afflicting . . . [p]laintiff. However, [p]laintiff had
worked as a bartender and a florist when she was
younger. She states that she is willing to "work from
home" but remains unsuccessful in securing a position.
[Plaintiff] is ineligible to collect [s]ocial [s]ecurity

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 benefits. The court finds that [plaintiff] has
accumulated limited savings and at age [fifty-five], will
face a substantial hurdle as she ages.

We discern no error in the court's determination that plaintiff was unable to save

for retirement. Put into context, plaintiff's limited ability to save for retirement

is supported by the record.

The judge then considered the additional factors, which are identical under

both subsections (j)(2) and (3). Applying these factors, an obligor must prove

by a preponderance of the evidence, that modification or termination of alimony

is appropriate. N.J.S.A. 2A:34-23(j)(2) and (3).

The first factor a court must consider is "[t]he age and health of the parties

at the time of the application . . . ." N.J.S.A. 2A:34-23(j)(2)(a). Defendant

argues that given his poor health condition, his retirement was objectively

reasonable. He contends the judge erroneously rejected his unrefuted evidence

regarding his medical status and instead focused on the fact that the City of

Rahway did not force his retirement.

Next, the court must consider "[t]he obligor's field of employment and the

generally accepted age of retirement for those in that field . . . ." N.J.S.A. 2A:34-

23(j)(3)(b). As to this factor, defendant argues that firefighters are permitted to

retire at age fifty-five, and must retire by age sixty-five. Since defendant retired

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at age fifty-nine, he contends that he falls squarely within the anticipated and

acceptable range for retirement.

The judge addressed the first factor at length and then incorporated his

findings from that section into the second factor analysis. As to both factors,

the judge found:

At the time of application, [d]efendant was [fifty-nine].
[Defendant] could have worked until age [sixty-five]
but chose to retire at age [fifty-nine]. He received his
full benefit package including a lifetime pension and
generous health plan. . . . The [C]ity of Rahway did not
require [d]efendant to retire early due to any medical
condition or disability. Therefore, [defendant's]
decision can be characterized as voluntary. . . . [T]he
court . . . was unmoved by [Dr. Penek's] testimony.

Dr. Penek was retained by [defendant] for the express
purpose of trial testimony. The court finds that
[d]efendant may have experienced shortness of breath,
limited ability to climb stairs, and decreased air entry
but overall, the testimony of Dr. Penek was
unpersuasive.

....

The court finds that [d]efendant could have continued
working as a Rahway firefighter but chose to retire
shortly after becoming eligible to receive full benefits.
The court also finds that [defendant] did not actively or
seriously seek another job earning a comparable salary
as a firefighter once he made the decision to retire.

....

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 The court might have arrived at a different conclusion
had [d]efendant presented an expert from the City of
Rahway with an opinion that [d]efendant was forced to
retire because of a medical problem. This was not the
case however, as defendant offered the testimony of a
"hired gun" who earned at least [$3000] for his initial
exam and court testimony.

Here, the judge correctly applied the factors and determined that

defendant did not need to retire for medical reasons and could have continued

working as a firefighter. The judge also found that plaintiff is financially

dependent and requires continued spousal support. In his opinion, the judge

determined that plaintiff lacks adequate, advanced work skills and is only

capable of performing a job earning a minimum wage.

The statute also requires a consideration of "[t]he age when the obligor

becomes eligible for retirement at the obligor's place of employment, including

mandatory retirement dates or the dates upon which continued employment

would no longer increase retirement benefits" as well as "[t]he obligor's motives

in retiring, including any pressures to retire applied by the obligor's employer or

incentive plans offered by the obligor's employer . . . ." N.J.S.A. 2A:34-

23(j)(3)(c) and (d).

On these points, defendant argues that while he was able to accrue

additional retirement benefits until he reached the mandatory retirement age of

A-4672-17T4
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sixty-five, he was permitted to retire at age fifty-five. Also, he asserts that while

he did not have an incentive to retire at the time he did, there was uncontroverted

evidence that his medical issues were the driving factor in making the decision

to retire and his motive was not improper.

Regarding factor (c), the judge found "defendant was eligible to retire at

age [fifty-five]. Defendant was [fifty-nine] when he retired but could have

continued working as a firefighter through age [sixty-five], earning a salary

greater than his pension."

Regarding factor (d),

The court questions [d]efendant's motives in retiring.
The court finds that [d]efendant waited until he was
eligible to receive his full pension and benefit package
to step down. Defense counsel concedes at page [five]
of his brief that "[defendant's] retirement benefits could
have increased until he reached the mandatory
retirement age in accordance with state law."
Defendant was not pressured by Rahway to retire and
was not offered any incentives. His decision was
voluntary.

Defendant's arguments are unavailing, and there was no abuse of

discretion by the judge. There is substantial, credible evidence in the record to

support the judge's findings under these factors.

The judge noted that plaintiff is unable to maintain her monthly household

expenses without spousal support. Moreover, the judge found defendant failed

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to show a substantial change of circumstances that would warrant a termination

or modification of alimony. There is sufficient credible evidence in the record

to support the judge's findings of fact and conclusions of law.

We have considered defendant's other contentions regarding the judge's

decision on his motion to terminate or modify alimony. We conclude these

arguments lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

III.

Next, defendant argues the judge erred by terminating his child support

obligation for the parties' son, Peter, effective September 1, 2017. Defendant

contends that date is inconsistent with the judge's finding that additional support

was not required because Peter had been residing in an off-campus apartment

since May 2016. In his opinion, the judge found that Peter "stays at his own

apartment more frequently and rarely spends his nights at his mother's home."

In considering the termination of defendant's child support obligations,

the judge analyzed the factors relevant to the issue of support, beyond college

expenses, for a child who attends college and lives on campus under Jacoby v.

Jacoby, 427 N.J. Super. 109 (App. Div. 2012). The judge weighed the child's

needs, earning potential, debts, age, and health; the parent's contribution towards

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college costs; and the possible continued need to retain a local residence for

schooling.

According to Jacoby, when addressing a support obligation for a child

who resides at college, utilizing the child support guidelines to determine the

amount is error. Id. at 113. Instead, the calculation of child support under those

circumstances should be based on an evaluation of the factors enumerated in

N.J.S.A. 2A:34-23(a). Id. at 122. Those factors include:

(1) Needs of the child;

(2) Standard of living and economic circumstances of
each parent;

(3) All sources of income and assets of each parent;

(4) Earning ability of each parent, including
educational background, training, employment skills,
work experience, custodial responsibility for children
including the cost of providing child care and the length
of time and cost of each parent to obtain training or
experience for appropriate employment;

(5) Need and capacity of the child for education,
including higher education;

(6) Age and health of the child and each parent;

(7) Income, assets and earning ability of the child;

(8) Responsibility of the parents for the court-ordered
support of others;

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 (9) Reasonable debts and liabilities of each child and
parent; and

(10) Any other factors the court may deem relevant.

[N.J.S.A. 2A:34-23(a).]

Here, the judge found:

[d]efendant has proven that the child's needs have
lessened since he began attending college, especially
when he moved into the apartment in Clifton. . . . It is
undisputed that a large share of the son's expenses are
now paid by the father: automobile; auto maintenance
and insurance; gasoline; parking pass for school; cell
phone; and health insurance. The son resided with his
mother during school breaks before he leased an
apartment, usually for [three] months during the
summer and occasionally during the weekends. The
court finds that [plaintiff] provided some benefits and
support to [their son] in the form of food, linens,
toiletries, and sundries. The [p]laintiff also alleges that
she paid for clothing, haircuts, entertainment, food, and
spending money on a sporadic basis. Therefore, the
court will not disturb the prior child support order in
place before [the son's] residence at the Clifton
apartment.

....

[However,] [t]he court finds [d]efendant credible that
after the son's sophomore year, he paid for an apartment
rental at the rate of $625 per month plus utilities and
cable television. The court also finds that [the son]
resides at the apartment most of the time, even during
breaks.

....

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 The judge granted defendant's motion on this issue and terminated child

support as of September 1, 2017. Defendant challenges the judge's decision

setting the child support termination date at September 1, 2017, the

commencement of Peter's senior year of college. Both parties acknowledged

that Peter resided in the apartment after it was leased in May 2016. The judge

found that prior to September 2017, Peter probably spent time at plaintiff's

home, and "[p]laintiff pays a nominal (if any) amount for [their son] since he

moved." Defendant contends the judge did not articulate why his child support

payments should continue for over a year while making other payments for

Peter. When defendant raised this issue by way of a motion, the judge said he

would consider it but instead issued an order with the same termination date and

no explanation.

We are constrained to remand to the Family Part judge to consider whether

child support should be terminated on a date in calendar year 2016 consistent

with the apartment rental, or to explain his reasons for selecting September 1,

2017. An abuse of discretion occurs when a decision is "made without a rational

explanation, inexplicably depart[s] from established policies, or rest[s] on an

impermissible basis." US Bank Nat'l Ass'n. v. Guillaume, 209 N.J. 449, 467-68

(2012) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)). Since

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25
the judge did not provide a rational explanation for ordering the effective child

support termination date of September 1, 2017, we reverse and remand the May

4, 2018 order insofar as it pertains to this issue for reconsideration by the judge.

IV.

Defendant argues the Family Part judge erred by not requiring plaintiff to

reimburse him for monies paid toward the lease and buy-out of the Mountaineer.

He contends that under the MSA, the parties agreed plaintiff would be

responsible for the lease payments with Ford Motor Credit. In his motion,

defendant sought $6,149.99, which represented payments he allegedly made for

the Mountaineer between April 20, 2010, and February 2, 2012. He also sought

$4000, which he paid to buy-out the vehicle, for a total claim of $10,141.99. At

the hearing, defendant presented the judge with copies of his bank statements,

which he testified substantiated his claim for the payments, along with a

corresponding Ford Motor Credit statement, and a copy of the $4000 check

representing the buy-out payment.

In opposition, plaintiff argued that she made payments from her account

but was habitually behind and sometimes had to rely on defendant to make

payments on her behalf. Plaintiff contended that she reimbursed defendant in

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26
cash, which she obtained from her parents, but failed to provide proof other than

her mother's partial corroboration for two occasions.

The judge found, however, that defendant did not submit copies of the

checks or other "actual proof of payment." The bank statements indicate that

defendant made certain payments to "Ford Credit." Plaintiff asserted that the

bank statements do not reflect any Ford Motor Credit account information and

therefore, do not confirm defendant made the payments.

The judge stated:

Plaintiff claims that the [$4000] check was a "gift" and
[d]efendant has characterized it as a "loan[."] The court
finds that the [$4000] check paid by [d]efendant to Bell
Ford[1] was for the benefit of the [p]laintiff regarding
the Mercury buy[-]out . . . [and] [t]he buy[-]out was
strictly for the benefit of the [p]laintiff[. . . .] [E]ven
though there was no written contract between the
parties concerning this issue, [plaintiff] maintained sole
use of the vehicle, enjoyed driving it, and did not want
to pay a "lease termination fee[."]

. . . However, since [d]efendant did not submit checks
(or other actual proof of payment) to Ford Motor
Company, the court respectfully denies a portion of his
claim concerning the vehicle. However, the court was
persuaded by the [d]efendant's more credible testimony
that the [$4000] paid to Bell Ford was primarily for
[p]laintiff's benefit and [plaintiff's] testimony that the
funds constituted a "gift" was not plausible.

1
Ford Motor Credit and Bell Ford are used synonymously throughout this
opinion.
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27
 Consequently, the judge ordered plaintiff to reimburse defendant the

$4000 amount. The evidence on this issue was contradictory and was based

partly on credibility and insufficient proof of payment. There was sufficient,

credible evidence in the record to support the judge's finding, which is entitled

to our deference. Therefore, we reject defendant's argument.

V.

Lastly, we address defendant's argument that he was entitled to

reimbursement for the losses he allegedly sustained because plaintiff improperly

claimed Peter as a tax deduction. Defendant asserts under the MSA, he was

entitled to claim Peter as a dependent on his 2010 and 2012 tax returns requiring

him to pay additional taxes. He seeks $1500 he lost in tax liability for both years

or a total of $3000.

The relevant section of the MSA provides:

The [defendant] shall have the right to claim the child
as a dependency deduction on his federal and state
returns for the tax years 2009, 2010 and 2012. In 2012,
and each year the child is in college, the parties shall
mutually consult with an accountant and determine if it
benefits the son's college tuition costs for the [plaintiff]
to claim the child . . . for . . . 2012, 2013, and 2014.

The judge noted this MSA provision was "convoluted" and required the

parties to consult an accountant to determine who should take the deduction

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"based on a set of conditions and future circumstances." The MSA also includes

a handwritten provision that indicates the parties might change this section "as

the need may arise."

Plaintiff testified that defendant agreed she could take the tax deduction

for Peter. She presented the judge with a series of messages between the parties

in which defendant agreed she could take the deduction. The judge concluded

that defendant "failed to substantiate this part of his claim" and onl y asserted

this demand "to add weight" to other aspects of his motion. Moreover, the judge

noted that the exchange only pertained to one year and defendant "never

seriously objected to the arrangement" until he filed his motion. To the contrary,

defendant approved plaintiff taking the deduction for one of the two years he

now disputes.

Our careful review of the record supports the judge's denial of defendant's

claim on this issue. There is sufficient, credible evidence in the record to support

the judge's finding. Therefore, we reject defendant's argument.

Affirmed in part, and remanded in part. We do not retain jurisdiction.

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