PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

Before Judges Waugh and Nugent.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-618-05.

Amy Sara Cores argued the cause for appellant (Cores & Nachlinger, LLC, attorneys; Ms. Cores, on the brief).

Respondent has not filed a brief. PER CURIAM

Defendant Howard Spivak appeals the Family Part's June 27, 2013 order denying his motion to emancipate his daughter. We reverse and remand for further consideration of the issue of emancipation.

I.

Spivak and plaintiff Susan Spivak, now known as Susan-Lori Goodman, were married on January 21, 1990. Their daughter, an only child, was born in April 1991. They divorced on January 31, 2007. The dual judgment of divorce incorporated a property settlement agreement (PSA), which contained provisions for their daughter's support, education, and emancipation.

The PSA's emancipation clause states in pertinent part:

4.3 Emancipation. The child shall be deemed, for purpose of this Agreement, to have become emancipated as contemplated herein upon the happening of any one of the following events:
(a) Graduation from high school, however, in the event a child ceases to attend high school, other than for reasons of illness, disability, or other reasons recognized by the court, then it shall be at the time said child ceases attending high school on a permanent basis. If the child continues education after high school, whether it be college or trade school, then upon the child's graduation from said institution;
. . . .
(f) Engaging in full-time employment, at any age, while not attending an institution of higher education, except that the child engaging in partial, part-time or sporadic employment while a full-time student shall not constitute emancipation. Furthermore, the child shall not be deemed to be emancipated by engaging in full-time employment during vacations and summer periods.
[(Emphasis added).]

7.1 College Education. Husband and wife agree that upon graduation from high school, it is anticipated that [their daughter] will attend a post-secondary institution in Canada at a public institution. The parties agree that prior to any contribution from either husband or wife, the parties shall be guided by the Supreme Court Case of Newburgh v. Arrigo, 88 N.J. 529 (1982) and the recent Supreme Court case of Gac v. Gac, 186 N.J. 535 (2006). Any contribution required by either party shall be fixed in accordance with those cases and the parties specifically recognize that the quality of the relationship between husband and [their daughter] will be considered in determining husband's obligation to contribute to college tuition and expenses for her. It shall be incumbent upon the husband by the wife and [their daughter] to notify the husband of the anticipated selections of post-high school education, in writing, with said notice at least nine (9) months prior to [their daughter's] expected matriculation, as to the location of the school, the cost of the school and the financial aid, if any, available to be applied toward said schools.

The parties' daughter graduated from high school in 2008. In January 2009, after taking a semester off, she entered a three-year arts program at Dawson College, which is located in Montreal. She graduated from Dawson's professional theatre program in May 2013.

In March 2013, Spivak filed a motion to emancipate his daughter and end his support obligations. Goodman filed a cross-motion, opposing the motion and seeking an award of counsel fees. Both parties requested oral argument.

Spivak argued that his daughter's graduation from Dawson College triggered her emancipation under the terms of the PSA. Goodman argued that, because their daughter had been accepted by McGill University for a four-year program leading to a bachelor's degree, she was not yet emancipated. In her certification, Goodman explained that, in the Province of Quebec, there are four distinct education levels: grade school, high school, college, and university. She asserted that the daughter's attendance at a university following graduation from a college was consistent with the terms of the PSA and the educational system in Quebec.

Despite the request of both parties for oral argument, the motion judge decided the motion on the papers. She entered an order on June 27, 2013, denying both the motion and cross-motion. In the attached written statement of reasons, the judge based her decision on the fact that the parties' daughter had not yet completed her post-secondary education, comparing her situation to an American student who begins post-secondary education at a community college and then transfers to a traditional college to obtain a bachelor's degree. However, the judge noted that this was "not an optimal scenario" because it would take the daughter more than four years to obtain her degree. This appeal followed.

II.

On appeal, Spivak argues that the motion judge erred in denying oral argument, failing to enforce the provisions of the PSA, and misapplying the law concerning emancipation and the obligation to pay for college expenses.

We start our analysis by noting that the motion judge decided the complicated issue before her without granting oral argument, as requested by both parties. In doing so, she abused the discretion conferred by Rule 5:5-4(a), which provides that

[m]otions in family actions shall be governed by R. 1:6-2(b) except that, in exercising its discretion as to the mode and scheduling of disposition of motions, the court shall ordinarily grant requests for oral argument on substantive and non-routine discovery motions and ordinarily deny
requests for oral argument on calendar and routine discovery motions.

In a long line of decisions, our Supreme Court has "emphasized repeatedly that matrimonial agreements between spouses . . . which are fair and just, fall within the category of contracts enforceable in equity." Petersen v. Petersen, 85 N.J. 638, 642 (1981); see also Berkowitz v. Berkowitz, 55 N.J. 564, 569 (1970); Schlemm v. Schlemm, 31 N.J. 557, 581-82 (1960).

As we held in Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995), "the contractual nature of such agreements has long been recognized and principles of contract interpretation have been invoked particularly to define the terms of the agreement and divine the intent of the parties." In addition, the Supreme Court stated in Pacifico v. Pacifico, 190 N.J. 258, 266 (2007), "it is a basic rule of contractual interpretation that a court must discern and implement the common intention of the parties." Our "role is to consider what is written in the context of the circumstances at the time of drafting and to apply a rational meaning in keeping with the 'expressed general purpose.'" Ibid. (citation omitted). We "will not draft a new agreement for the parties." Massar, supra, 27 9 N.J. Super. at 93.

A literal reading of the operative sentence - "If the child continues education after high school, whether it be college or trade school, then upon the child's graduation from said institution" - would suggest that the daughter should have been emancipated once she graduated from Dawson College. That, however, might not have been the intention of the parties. The judge's suggestion that the daughter's situation should be compared to attendance at a community college followed by attendance at a traditional college to obtain a bachelor's degree has some merit, but that does not appear to be what actually happened here.

Especially in the context of the differences between Quebec's and New Jersey's educational systems and the specific factual situation before us, the requirements of the PSA are not clear on their face. Although the PSA, in paragraph 7.1, contemplated that the parties' daughter would study in Canada, we do not know whether the wording of paragraph 4.3 was specifically keyed to the post-secondary system in Quebec so as to include the distinction between a "college" and a "university"; whether the parties contemplated that their daughter would be able to obtain multiple degrees from several institutions; whether they contemplated that their daughter's post-secondary education would extend beyond what might ordinarily be four or five years of post-secondary education to nine years; or whether they contemplated that Spivak would be obligated to pay not only his daughter's educational expenses but also full child support for such an extended period. See Jacoby v. Jacoby, 427 N.J. Super. 109, 113 (App. Div. 2012) (recognizing that attendance at college is a changed circumstance that permits a reexamination of child support). Finally, the PSA itself requires that the parents' respective shares of the cost of post-secondary education be calculated pursuant to the Newburgh and Gac standards, specifically including the factor concerning the relationship between Spivak and his daughter.

For the reasons outlined, we reverse the order on appeal and remand to the Family Part for reconsideration of the issue of emancipation. The judge must also consider whether there should be an adjustment in the amount of the child support pursuant to Jacoby or the allocation of the educational expenses in light of the provisions of paragraph 7.1 of the PSA. Given the issues involved, the motion judge should make her determination following a plenary hearing. We do not retain jurisdiction.

Reversed and remanded.

I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION