NOT FOR PUBLICATION WITHOUT THE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-1476-15T2
JANINE CLAPPER n/k/a
JANINE SEELEY,
Plaintiff-Respondent,
v.
GREGORY CLAPPER,
Defendant-Appellant.
_____________________________
Submitted December 7, 2016 – Decided May 25, 2017
Before Judges Fuentes, Carroll and Gooden
Brown.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Ocean
County, Docket No. FM-15-1104-10.
Gary L. Goldberg, attorney for appellant.
Respondent has not filed a brief.1
PER CURIAM
In this post-judgment matrimonial matter, defendant Gregory
Clapper appeals from the provisions of the October 23, 2015 Family
1
Plaintiff did not file a brief, having had her ability to file
a brief suppressed by our order dated May 23, 2016.
Part Order denying his application to emancipate the parties' then
twenty-one-year-old son, J.C., denying his application to
terminate child support, and granting plaintiff's cross-motion
requiring defendant to contribute prospectively towards J.C.'s
post high school education expenses pursuant to the parties'
property settlement agreement (PSA). Defendant contends that the
"information provided to the [t]rial [c]ourt, was woefully
inadequate to justify denying emancipation" and the court "erred
in failing to terminate" or "reduce child support" and "in
requiring [] defendant to contribute to the cost of [J.C.]'s
training prospectively" without considering the factors enunciated
in Newburgh v. Arrigo, 88 N.J. 529 (1982) and Gac v. Gac, 186 N.J.
535 (2006). Having considered these arguments in light of the
record and applicable legal principles, we reverse and remand for
an evidentiary hearing.
I.
We derive the following facts from the record. Defendant and
plaintiff Janine Clapper divorced in 2011 following a nineteen-
year marriage. Two children were born of the marriage, J.C., born
in September 1994, and G.C., born in March 2001. A final judgment
of divorce terminating the parties' marriage was entered on March
15, 2011, which incorporated a PSA between the parties. Under the
PSA, the parties share joint legal custody of the children with
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plaintiff designated as the parent of primary residence and
defendant designated as the parent of alternate residence.
Defendant was obligated to pay $232 per week in child support
"which exceeds the Child Support Guidelines[.]"
The PSA provides for termination of defendant's child support
obligations on the first of the following events:
A. Graduation from high school, however, in
the event the child cease[s] to attend high
school, then and in that event, upon the
child's eighteenth birthday. If the child
continues full time education after high
school, then upon graduation from the post-
high school institution.
B. The child's marriage.
C. Anything to the contrary notwithstanding,
if the child becomes disabled[.]
D. Demise of the child or the [defendant.]
E. Entry in the Armed Forces of the United
States[.]
F. Engaging in full time employment upon and
after the child attaining the age of eighteen
(18) years, except that: (i) [e]ngaging by the
child in partial, part-time or sporadic
employment shall not constitute emancipation,
and (ii) [e]ngaging by the child in full time
employment during vacation and summer periods
shall not be deemed emancipation.
G. Emancipation arising from employment shall
be deemed terminated and nullified upon the
cessation by the child, for any reason, from
full time employment and the period, if any,
from such termination until the earliest of
3 A-1476-15T2
any of the other events herein set forth,
shall, for all purposes under this Agreement,
be deemed a period prior to the occurrence of
such emancipation.
H. A child attending college or similar post
high school educational institution shall not
be considered emancipated.
Additionally, in connection with college education, the PSA
expressly provides:
6.1 JOINT OBLIGATION: The [p]arties recognize
that they have a joint, but not necessarily
equal, obligation to provide a college
education for the unemancipated child of the
marriage and the precise amount of their
respective contributions shall be determined
at the time the college expense is incurred.
This determination shall be based upon a
review of each [p]arty's overall financial
circumstances including their income, assets
and obligations including, but not limited to,
the [defendant's] obligation to pay child
support.
6.2 REVIEW: The [p]arties acknowledge that
depending upon the location of the college,
the actual cost, and the [p]arties financial
circumstances at the time, the new college
educational expense may require a review of
the [defendant's] child support obligation.
6.3 COLLEGE EXPENSES: A college expense shall
be defined as an expense for tuition, books,
room and board, student fees, and
transportation from the residence to school,
student activity fees and such other costs
reasonably necessary to maintain the child in
school. Prior to either [p]arty having an
obligation to contribute to such expenses, the
child shall first have the obligation to apply
for all existing loans, scholarships, grants,
4 A-1476-15T2
and further to utilize any funds accumulated
by the child to meet the obligation.
6.4 CASELAW: The factors to be considered on
the issue of evaluating a claim for
contribution towards the cost of higher
education were summarized in the New Jersey
Supreme Court case of Newburgh v. Arrigo, 88
N.J. 529 [(1982)]. The [p]arties agree to
comply with their respective obligations in
accordance with this case.
In April 2015, defendant filed a motion seeking, among other
things, an order declaring J.C. emancipated retroactive to
February 28, 2013, reimbursement of post-emancipation child
support payments, and termination of child support for J.C.
Plaintiff filed a cross-motion seeking, among other things, to
compel defendant to contribute towards J.C.'s "post high school
educational expenses pursuant to article 6.1 of the [PSA]."
In support of his motion, defendant certified that he was
"essentially out of work" as "a self-employed painter" due to
"major health problems" and "has applied for disability."
Defendant averred that his tax return reflected an income of
"[$29,684] in 2014" while, at the time of the divorce, he "was
imputed with income of [$40,000]." According to defendant, "he
has no income to date for 2015" and "has been paying child support
[by] liquidating assets, which are just about exhausted."
Defendant also certified that after J.C.'s graduation from
high school in June 2012, J.C. "went to North Carolina in October
5 A-1476-15T2
2012," where he attended NASCAR Technical School (NASCAR Tech) and
"worked part-time." According to defendant, J.C. graduated from
NASCAR Tech "in February 2013" and obtained full-time employment
with "Goodyear Racing Tires in North Carolina" while working "as
a jackman in [ARCA] Racing." Defendant certified that J.C. is no
longer "attending college, or any school[.]" As a result,
defendant sought an order emancipating J.C. retroactive to
February 2013 when he graduated from NASCAR Tech.
In contrast, plaintiff certified that J.C. graduated from
Universal Technical Institute, NASCAR's technical school, in
February 2014, rather than 2013 as asserted by defendant. Further,
plaintiff averred that "[t]his was the initial phase of the
education and training [J.C.] would need to have before he could
reach his career goal[]" of becoming "a [p]it [c]rew member for a
NASCAR racing team."
According to plaintiff, after graduating from NASCAR Tech,
J.C. continued his education by immediately enrolling in "PIT U
Training Course[,]" the only pit crew training school "licensed
by the North Carolina Community College System." Plaintiff
described the program as "a graduate program by invitation only[]"
where J.C. currently "attends mandatory classes two (2) days a
week and field training five (5) days per week. In addition [J.C.]
6 A-1476-15T2
interns with the ARCA racing programs during the racing season at
various tracks around the country as a [j]ackman."
According to plaintiff, "[d]ue to his rigorous schedule
[J.C.] can only work part-time." Plaintiff certified that "in
2014[, J.C.] only earned a little over $16,000." Plaintiff
continued that "[J.C.] presently works for Randstand in the
Goodyear Racing Division as a tire specialist." However, plaintiff
averred that J.C. continued to rely on her financially to meet his
basic expenses, including housing costs.
Plaintiff provided a document from Universal Technical
Institute listing payments totaling $34,650 to J.C.'s student
account as of April 14, 2015. Plaintiff also submitted a NAVIENT
student loan payment history statement dated April 24, 2015,
showing a total balance of $22,781.59 and a private student loan
balance of $1,004.56 as of April 24, 2015. Additionally, plaintiff
presented a document signed by J.C.'s purported landlord stating
that plaintiff has paid $300 each month since October 2012 for
J.C.'s rent in North Carolina.
According to plaintiff, some of these expenses have been met
through contributions made by her mother. Plaintiff certified
further that "each time [she] . . . made a request for [d]efendant
to make a financial contribution towards the costs, [d]efendant
either refused or ignored the requests." Plaintiff also dismissed
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defendant's "claims of poverty" and disputed that defendant was
out of work.
After hearing argument on the motions, the trial court denied
defendant's application for emancipation and termination of child
support without prejudice and ordered defendant "to contribute
towards [J.C.'s] post high school educational expenses pursuant
to article 6.1 of the [PSA]" prospectively from July 14, 2015.
The court determined that Justin was still in the process of
completing a non-traditional post high school education in order
to reach "his goal of working in the pit crew on NASCAR[,]" through
a program that the court described as a "hybrid vo-tech and in
class" "clinical education." The judge explained that
the P.S.A. says, 'If the child continues
full-time education after high school, then
upon graduation from post high school
institution' -- it doesn't say college with a
capital C or university with a capital U. Here
he has completed two years of the one program
and now there's this other program. . . . [M]y
inclination certainly is to say by May or June
of 2016 he'll be emancipated more likely than
not because if he's completed the program
then, that's it. That will be your four years,
if you will, of college or post high school
education.
Relying on Gac v. Gac, supra, the court denied plaintiff's
request for retroactive contributions without prejudice finding
that, based on the record before the court, plaintiff did not
discuss or consult with defendant ahead of time and "[plaintiff]
8 A-1476-15T2
never once put anything in writing" to defendant seeking
contributions. However, the court explained that "because
everybody knows now where we're at and that they're seeking
contribution, and . . . I don't set any number here or do anything
other than to say prospectively. Everybody knows what's going on
now[.]"
This appeal followed. On appeal, defendant argues that:
THE TRIAL COURT ABUSED ITS DISCRETION, AND ERRED, IN
FAILING TO FOLLOW THE CRITERIA SET FORTH IN NEWBURGH
V[.] ARRIGO AND OTHER CONTROLLING CASES, AND ERRED IN
FAILING TO EMANCIPATE AND TERMINATE CHILD SUPPORT FOR
[J.C.] RETROACTIVE.
II.
We ordinarily accord great deference to the discretionary
decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J.
Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384
N.J. Super. 17, 21 (App. Div. 2006)). Similar deference is
accorded to the factual findings of those judges following an
evidentiary hearing. Cesare v. Cesare, 154 N.J. 394, 411-12
(1998). While we respect the Family Court's special expertise,
we may exercise more extensive review of trial court findings that
do not involve a testimonial hearing or assessments of witness
credibility. Cf. N.J. Div. of Youth & Family Servs. v. G.M., 198
N.J. 382, 396 (2009) (stating that deference to Family Court
9 A-1476-15T2
conclusions is not required where "no hearing takes place, no
evidence is admitted, and no findings of fact are made").
A judge may not make credibility determinations or resolve
genuine factual issues based on conflicting affidavits. Conforti
v. Guliadis, 128 N.J. 318, 322 (1992). When the evidence discloses
genuine material issues of fact, a Family Court's failure to
conduct a plenary hearing to resolve those issues is a basis to
reverse and remand for such a hearing. See, e.g., Fusco v. Fusco,
186 N.J. Super. 321, 329 (App. Div. 1982); Tancredi v. Tancredi,
101 N.J. Super. 259, 262 (App. Div. 1968). We must always
determine whether there is sufficient credible evidence in the
record to support the trial court's factual determinations. Rova
Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484
(1974).
Having set forth our standard of review, we next discuss the
principles that guide our analysis of the issue of emancipation
and a claim for contribution to the costs of higher education. In
Filippone v. Lee, 304 N.J. Super. 301 (App. Div. 1997), we
summarized the controlling principles regarding emancipation:
Emancipation of a child is reached when the
fundamental dependent relationship between
parent and child is concluded, the parent
relinquishes the right to custody and is
relieved of the burden of support, and the
child is no longer entitled to support.
Emancipation may occur by reason of the
10 A-1476-15T2
child's marriage, by court order, or by
reaching an appropriate age, and although
there is a presumption of emancipation at age
eighteen, that presumption is rebuttable. In
the end the issue is always fact-sensitive and
the 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." Bishop v. Bishop, 287 N.J. Super. 593,
598 (Ch. Div. 1995).
[Filippone, supra, 304 N.J. Super. at 308.]
In making this determination, a court must engage in "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 v. Dolce, 383 N.J. Super. 11, 18 (App. Div.
2006) (citing Newburgh, supra, 88 N.J. at 545). Thus, upon a
showing the child has reached the age of majority, the proponent
of emancipation satisfies the prima facie showing, shifting the
burden to the opponent of emancipation to show there is a basis
to continue support. Filippone, supra, 304 N.J. Super. at 308.
We have held that a child's attendance in postsecondary
education may be a basis to delay emancipation and continue
support. See Patetta v. Patetta, 358 N.J. Super. 90, 93-94 (App.
Div. 2003); Keegan v. Keegan, 326 N.J. Super. 289, 295 (App. Div.
1999). In addition to child support, financially capable parents
may be required to contribute to the higher education of children
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who are qualified students. In Newburgh, our Supreme Court
identified twelve non-exhaustive factors a court should consider
when deciding a claim by one parent for contribution to the costs
of a child's higher education, namely,
(1) whether the parent, if still living with
the child, would have contributed toward the
costs of the requested higher education; (2)
the effect of the background, values and goals
of the parent on the reasonableness of the
expectation of the child for higher education;
(3) the amount of the contribution sought by
the child for the cost of higher education;
(4) the ability of the parent to pay that cost;
(5) the relationship of the requested
contribution to the kind of school or course
of study sought by the child; (6) the
financial resources of both parents; (7) the
commitment to and aptitude of the child for
the requested education; (8) the financial
resources of the child, including assets owned
individually or held in custodianship or
trust; (9) the ability of the child to earn
income during the school year or on vacation;
(10) the availability of financial aid in the
form of college grants and loans; (11) the
child's relationship to the paying parent,
including mutual affection and shared goals
as well as responsiveness to parental advice
and guidance; and (12) the relationship of the
education requested to any prior training and
to overall long-range goals of the child.
[Newburgh, supra, 88 N.J. at 545.]
No one factor is alone determinative. Ibid.
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In a later opinion, our Supreme Court directed that courts
"should balance the statutory criteria of N.J.S.A. 2A:34-23(a)2
and the Newburgh factors, as well as any other relevant
circumstances, to reach a fair and just decision whether and, if
so, in what amount, a parent or parents must contribute to a
child's educational expenses." Gac v. Gac, supra, 186 N.J. at
543. Furthermore,
the factors set forth in Newburgh . . .
contemplate that a parent or child seeking
contribution towards the expenses of higher
education will make the request before the
educational expenses are incurred. As soon
as practical, the parent or child should
communicate with the other parent concerning
the many issues inherent in selecting a
college. At a minimum, a parent or child
seeking contribution should initiate the
application to the court before the expenses
are incurred. The failure to do so will weigh
heavily against the grant of a future
application.
[Id. at 546-47.]
Because these issues are fact-sensitive, courts must be
cautious when making these rulings without an evidentiary hearing
where there are material facts in dispute. See Hand v. Hand, 391
N.J. Super. 102, 105 (App. Div. 2007) (indicating that where facts
2
N.J.S.A. 2A:34-23(a) sets forth additional factors to consider
"[i]n determining the amount to be paid by a parent for the support
of the child and the period during which the duty of support is
owed[.]"
13 A-1476-15T2
are disputed or depend on credibility evaluations, a plenary
hearing is required); see also Tretola v. Tretola, 389 N.J. Super.
15, 20 (App. Div. 2006) (reversing an emancipation motion and
requiring a plenary hearing because the court failed to recognize
disputed material facts and "evidence beyond the motion papers
necessary for resolution of the matter") (citation omitted);
Conforti, supra, 128 N.J. at 322 (holding that a plenary hearing
is necessary when there remains "contested issues of material fact
on the basis of conflicting affidavits") (citation omitted).
Here, the court did not conduct an evidentiary hearing and
decided the emancipation and college contribution issues solely
on the parties' conflicting certifications, without resolving the
discrepancies raised during oral argument. As a result, several
important issues remained unresolved. Further, the court's ruling
includes no consideration of the Newburgh factors as required
under the PSA and caselaw. Specifically, the court never addressed
defendant's financial ability to make contributions or J.C.'s
actual education expenses. The court never verified J.C.'s
financial need or annual income. The court never explored the
availability of financial aid or the relationship between the
requested contribution to the course of study or kind of school
selected.
14 A-1476-15T2
The court concluded that the NASCAR Tech program constituted
post high school education as prescribed in the PSA without proofs
detailing the programs of study, J.C.'s aptitude for them, or
transcripts encompassing courses or credits. Further, the court
determined that J.C.'s continued student status forestalled
emancipation despite defendant's assertion that the program, in
fact, concluded in 2013 and plaintiff's limited proofs identifying
an anticipated completion date.
In ordering defendant to contribute only prospectively to
J.C.'s education expenses, the court concluded that defendant was
never consulted prior to J.C.'s enrollment based on plaintiff's
failure to produce any documentary evidence supporting her claim
to the contrary. However, because defendant did not specifically
dispute that claim and acknowledged J.C.'s enrollment in the NASCAR
Tech program in October 2012, limiting the contribution to future
education expenses appears to be unsubstantiated. Further, the
court's ruling includes no determination of the precise amount of
defendant's contribution as required by the PSA and Gac.
We have held that "[d]isputes of material fact should not be
resolved on the basis of [written] certifications nor in reliance
upon ambiguous terms in a property settlement agreement." Palmieri
v. Palmieri, 388 N.J. Super. 562, 564 (App. Div. 2006) (citing
Conforti, supra, 128 N.J. at 328-29). We agree with defendant
15 A-1476-15T2
that the information provided to the court was "woefully
inadequate" to resolve the facts in dispute and to justify the
court's rulings. As such, a plenary hearing is necessary to guide
the court in reaching an appropriate resolution of the issues.
Reversed and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
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