NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1822-08T21822-08T2

JANE COLCA f/k/a ANSON,

Plaintiff-Appellant/

Cross-Respondent,

v.

DAVID ANSON,

Defendant-Respondent/

Cross-Appellant.

__________________________

Argued December 15, 2009 - Decided

Before Judges Parrillo, Lihotz and Ashrafi.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1265-02.

Frank Imparato argued the cause for appellant/cross-respondent.

Randolph A. Newman argued the cause for respondent/cross-appellant (Newman & Andriuzzi, attorneys; Mr. Newman, on the brief).

The opinion of the court was delivered by

LIHOTZ, J.A.D.

Plaintiff Jane Colca appeals from a Family Part order filed on October 24, 2008. Defendant David Anson cross-appeals. In addition to challenging the court's determinations requiring her to reimburse college expenses incurred for their children and pay counsel fees awarded to defendant, plaintiff argues the trial court erred by imposing an obligation to pay child support in the absence of proof of changed circumstances following a prior order denying that same request. Defendant cross-appeals, arguing the court erred in limiting the ordered amount of college expense reimbursement and requesting an award of counsel fees for his participation in this appeal.

Given the unique factual circumstances presented, we conclude no error resulted from the court's order fixing child support, as plaintiff was not relieved of the fundamental duty to support the parties' child. We affirm the trial court's order of support, including the obligation to pay the children's college expenses, and the award of attorney's fees. Following our review, however, we conclude it is necessary to reverse two provisions of the order addressing the parties' respective obligations for the parties' daughter's past college costs. We remand the matter for further proceedings to discern whether sums plaintiff paid, for which she was denied credit, were received by defendant and, further, to determine the amount of plaintiff's contribution toward the tuition costs incurred for the parties' daughter in 2005-2006.

I.

Plaintiff and defendant divorced on February 18, 1993. They have two children: a son, age twenty-five, and a daughter, age twenty-three.

Substantial post-divorce litigation has occurred over the past fifteen years. In the recent past, a consent order was entered on January 31, 2005 (January consent order) awarding plaintiff residential custody of the parties' daughter and terminating "[p]laintiff's obligation to pay child support for [her]," effective June 14, 2004. Defendant was correspondingly ordered to pay child support of $149 per week. The parties' son was deemed emancipated and plaintiff's child support obligation for him was also terminated. Finally, the consent order provided "defendant shall pay 51% and the plaintiff shall pay 49% of college expenses" once the daughter was accepted to college.

A later motion regarding these same issues resulted in an order entered on November 3, 2005 (November order), which provided in pertinent part:

1. Each party shall be permitted the opportunity to retain the services of a forensic accountant for the purpose of determining the other party's 2003, 2004 and/or 2005 income at his or her own expense. Both parties shall cooperate with all reasonable requests for documents by the other party's forensic accountant.

. . . .

4. The Defendant's request for child support for [the children] is denied.

. . . .

9. The parties shall split [the daughter's] college expenses, and [the son's] college expenses incurred after September 6, 2005 as follows: the Plaintiff shall pay thirty-five (35%) percent; and the Defendant shall pay sixty-five (65%) percent. The children's college expenses shall include normal college expenses, including tuition, room and board and fees, and the parties' respective contributions shall be calculated after consideration of all available financial aid, scholarships and student loans received by the children.

. . . .

11. The Defendant shall promptly provide the Plaintiff with copies of all future bills for the children's college education, and the Plaintiff shall pay her proportionate share of same within thirty (30) days of receipt. For ongoing monthly college expenses for the parties' children, the Defendant shall provide a schedule of all future payments due. The Plaintiff shall forward her proportionate share of said ongoing monthly expenses to the Defendant at least seven (7) days prior to the date payment is due, and the Defendant shall pay said expenses.

. . . .

14. The Defendant shall provide the Plaintiff with an accounting of the monies he has already paid for the children's college expenses, and the Plaintiff shall reimburse the Defendant for her proportionate share of same within sixty (60) days.

When plaintiff failed to remit her percentage contribution of the children's college expenses, as required by the November order, defendant moved for enforcement of litigant's rights. His motion sought the payment of college expenses for both children, child support for the parties' daughter, and an award of attorney's fees based on the expense he incurred to file the motion.

Following its review of the parties' pleadings and consideration of oral argument, the court concluded plaintiff was in violation of litigant's rights and ordered her to pay (1) "the sum of $1768.69 . . . concerning reimbursement for college expenses [for the parties' daughter's attendance] at Berkeley College," (2) "the sum of $1,596[] . . . concerning reimbursement for college expenses [for the parties' son's attendance] at William Paterson University," (3) "the sum of $161 per week as and for child support for [the parties' daughter]" and $50 per week in arrears due for the time period of September 2, 2008 to October 28, 2008 totaling $1288, and (4) "the law firm of Newman & Andriuzzi the sum of $1250 as and for [defendant's] attorney's fees and costs for the necessity of filing this motion." The trial court denied defendant's reimbursement request for the parties' daughter's college expenses incurred while attending the Fashion Institute of Design and Manufacturing (FIDM) between October 2005 and February 2006, and plaintiff's cross-motion for counsel fees.

In a statement of reasons attached to the order, the trial court set forth its calculation of plaintiff's indebtedness. The court determined that two checks presented by plaintiff, payable to KCA Financial Services, Inc. and to Jeney & Jeney, LLC, would not be credited against her tuition obligation because "[n]o explanation was offered" as to the nature of the alleged payment. The trial court also denied defendant's request for reimbursement of the daughter's FIDM tuition, finding the "obligation" predated the November order.

In awarding support for the parties' daughter, the court found:

Defendant is supporting [the daughter]. There is simply no basis upon which the [c]ourt would deny [defendant's] right to obtain child support from plaintiff. The [c]ourt acknowledges that on November 3, 2005, defendant's request for child support was denied. The [c]ourt has not been provided with a Statement of Reasons regarding that denial. In any event, child support is the right of the child to the residential parent and [defendant] has a right to receive financial assistance from [the child's] mother.

The court relied on defendant's Case Information Statement and tax return to fix his annual income at $55,611. The court rejected plaintiff's assertions of "inaccuracies and possible infractions" because she failed to avail herself of the review granted "in its Order of November 3, 2005 that the parties were permitted to retain the services of a forensic accountant and right of discovery." Noting plaintiff "failed to provide any income information," the motion judge imputed annual income to her of $56,992, based upon "New Jersey State Labor Information." Plaintiff was ordered to pay child support of $161 per week.

With respect to the son's requested college expenses, plaintiff was ordered to reimburse thirty-five percent of the total obligation incurred at William Paterson University. Plaintiff's argument that defendant waived his claim because he waited two years to seek reimbursement was rejected, and no credit was given for some claimed payments based on a finding that they did not offset tuition. Defendant's request for plaintiff's payment of her share of their daughter's FIDM tuition was denied because the obligation was "incurred" prior to the date fixed in the November order, which ordered plaintiff's payment for college expenses "incurred after September 6, 2005."

Finally, the court made findings regarding the parties' respective requests for an award of attorney's fees. First, the judge noted that the parties' incomes were roughly comparable, although plaintiff failed to provide a Case Information Statement, preventing the court's consideration of her actual financial information. Second, the court found plaintiff's "position that she is not obligated to provide child support [] neither reasonable nor made in good faith" and that "she [] attempted to seek credits by submitting checks that clearly were not used for college tuition." Consequently, plaintiff was ordered to pay $1250 toward defendant's counsel fees. Plaintiff's request for counsel fees was denied, as she "failed to submit a basis upon which fees would be awarded."

II.

We begin our analysis by briefly discussing certain established principles that guide our review. The scope of appellate review of a trial court's fact-finding function is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). "We grant substantial deference to a trial court's findings of fact and conclusions of law, which will only be disturbed if they are 'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (internal citations omitted)). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. Generally, we reverse only when our review discerns the trial court's findings "'are so wholly un-supportable as to result in a denial of justice[.]'" Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988) (quoting Rova Farms Resort, supra, 65 N.J. at 483-84); Roe v. Roe, 253 N.J. Super. 418, 432 (App. Div. 1992). However, a trial court's "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Tp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

III.

A.

On appeal, plaintiff contends the court abused its discretion in modifying the November order even though defendant failed to prove changed circumstances, as required by Lepis v. Lepis, 83 N.J. 139 (1980). Plaintiff further argues the court "compounded its error . . . when it inconceivably accepted the defendant's representation of his annual income despite the proofs presented by the plaintiff[,] . . . which unequivocally contradicted the defendant's certification of his financial circumstance." We disagree.

The order under review addresses a parent's obligation to provide support, including college expenses for an unemancipated child, an area informed by several essential principles. First, "[o]ne 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) (citing Dunbar v. Dunbar, 190 U.S. 340, 351, 23 S. Ct. 757, 761, 47 L. Ed. 1084, 1092 (1903)); see also Cumberland County Bd. of Soc. Servs. v. W.J.P., 333 N.J. Super. 362, 365 (App. Div. 2000) (noting that "[a]t common law, parents had an absolute duty to support their children"). The obligation to provide child support "is engrained into our common law, statutory, and rule-based jurisprudence." Burns, supra, 367 N.J. Super. at 39.

Second, "it is settled that the best interests of the child [are] the greatest and overriding consideration in any family court matter." Monmouth County Div. of Soc. Servs. v. G.D.M., 308 N.J. Super. 83, 88 (Ch. Div. 1997) (citing Wilke v. Culp, 196 N.J. Super. 487, 489 (App. Div. 1984)). Accordingly, enforcing the parental duty to support children is "an inherent part of the 'best interests of the child' rubric which underlies our family courts." Ibid. Accordingly, "a parent is obliged to contribute to the basic support needs of an unemancipated child to the extent of the parent's financial ability[.]" Martinetti v. Hickman, 261 N.J. Super. 508, 513 (App. Div. 1993). "[C]hildren are entitled to be supported at least according to the standard of living to which they had grown accustomed prior to the separation of their parents," and the "talisman of concern is always the welfare of the child." Guglielmo v. Guglielmo, 253 N.J. Super. 531, 546 (App. Div. 1992).

Third, it is also firmly established that child support is for the benefit of the children; therefore, the right to receive support belongs to the children, not the custodial parent. Pascale v. Pascale, 140 N.J. 583, 591 (1995); Patetta v. Patetta, 358 N.J. Super. 90, 94 (App. Div. 2003); L.V. v. R.S., 347 N.J. Super. 33, 41 (App. Div. 2001); Blum v. Ader, 279 N.J. Super. 1, 4 (App. Div. 1994).

On appeal, plaintiff essentially argues the November order denying defendant's application for payment of child support was immutable, forever relieving her of the obligation to support the parties' daughter until and unless defendant could prove changed circumstances warranting modification of the order's provisions. This position is unsupportable as a matter of law.

As we have stated, a parent's support obligation continues until the child's emancipation. During that time, the inherent equitable powers of the Family Part allow the court to enter, revise or alter support orders "from time to time as circumstances may require." N.J.S.A. 2A:34-23; see also Lepis, supra, 83 N.J. at 146. Therefore, notwithstanding the denial of defendant's prior motion for child support, the court may enter an appropriate support order after examining the current facts and circumstances.

Neither we nor the motion judge were provided with a transcript of the November 2005 proceeding, precluding a review of the court's reasons for denying defendant's motion and limiting a full comparison of the facts. The record does show that in November 2005, the parties' daughter commenced college, was living in California and attending FIDM. Plaintiff's September 2, 2005 certification stated "[w]ithin the last four [] years, our children have gone back and forth between living with me and living with [] [d]efendant." Under these circumstances, the November order allocated the parents' financial obligations for "tuition, room and board, and fees" along with transportation. At the time the current motion was heard, the parties' daughter had left FIDM to attend a local school, Berkeley College. She remained a full-time student but was commuting to her classes while residing with defendant. The circumstances now presented are markedly different from those of November 2005. Therefore, entry of an order enforcing the "natural, vital[,] and fundamental" duty imposed on a parent to support his or her child was warranted. G.D.M., supra, 308 N.J. Super. at 94.

We also reject plaintiff's suggestion of error because the court did not consider the daughter's inheritance when fixing support. A child's assets may not be used to fulfill a financially able parent's support obligation. See In re Application of Conda, 104 N.J. 163, 170 (1986) (holding "the estate of a minor should not be charged for the support and maintenance of a minor where others are responsible and able to do so"); Cohen v. Cohen, 258 N.J. Super. 24, 30-31 (App. Div.) (construing Uniform Gift to Minor's Act to prevent a custodian who is also a parent from using a child's account to defray a financially able parent's legal obligation to support the child), certif. denied, 130 N.J. 596 (1992); Pressler, Current N.J. Court Rules, comment 2 to R. 5:6A (2010) ("It is also clear that a parent's support obligation cannot be met by resort to the child's personal estate, including property gifted to the child under the Uniform Gifts to Minors Act"). We conclude the order requiring plaintiff to fulfill her legal obligation to pay support for the parties' unemancipated daughter will not be disturbed.

We turn to plaintiff's attack on the incomes underpinning the court's calculation of child support. Defendant's income was proven by his June 30, 2008 Case Information Statement (CIS) and his 2007 federal income tax return, which included a Schedule "C" itemizing income and expenses from his business. The motion judge rejected plaintiff's unsupported suggestion of falsification. As the motion judge noted, plaintiff had made similar assertions in the past and was permitted to pursue broad post-judgment discovery. She chose not to utilize this opportunity, making her contentions no more than unfounded speculation.

Believing she was not obligated to support the parties' daughter, plaintiff failed to file a CIS or provide other proof of her income. Instead, the court, relying upon the job description and income data set forth in the New Jersey Occupational Wage Compendium published by the Department of Labor, imputed income.

In calculating child support, the "Considerations in the Use of Child Support Guidelines" allow for the imputation of income based on "the average earnings for that occupation as reported by the New Jersey Department of Labor (NJDOL)." Pressler, supra,