Opinion
DOCKET NO. A-6134-10T1
06-13-2012
MELANIE M. TAFARO, Plaintiff-Respondent, v. STEPHEN T. TAFARO, Defendant-Appellant.
Stephen T. Tafaro, appellant, argued the cause pro se. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Koblitz.PER CURIAM
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-339-03.
Stephen T. Tafaro, appellant, argued the cause pro se.
Respondent has not filed a brief.
Defendant Stephen T. Tafaro appeals from the July 22, 2011 order denying his application to emancipate his estranged twenty-two-year-old son, who has completed four years of college without graduating. The motion judge denied defendant's application without prejudice and ordered the son to take the maximum credit load allowed by Rutgers University to facilitate his graduation as soon as possible. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for the motion judge to conduct a plenary hearing if the issue of emancipation remains in contention.
We do not know if the son has met the conditions imposed by the motion judge, who indicated that if he failed to do so, the judge would consider retroactively emancipating the young man. We note that such a retroactive emancipation would not necessarily require plaintiff to reimburse defendant for child support paid in the interim. See e.g., J.S. v. L.S., 389 N.J. Super. 200, 205-06 (App. Div. 2006), certif. denied, 192 N.J. 295 (2007) (concluding that, even when the party seeking reimbursement was deceived into believing he was the child's biological father, support payments made prior to the results of the paternity test need not be repaid by the custodial mother so as to protect the child's welfare).
Following a seventeen-year marriage, the parties divorced in 2004. They have two children. Their eldest child, a son, was born in 1989. Their final judgment of divorce incorporates the parties' property settlement agreement (PSA). Defendant has been ordered to pay 75% of the educational costs of his children and agreed in the PSA to pay $485 per week in child support for both children. PSA ¶ 4.
The PSA has two provisions that relate to emancipation. Paragraph 14 states:
The [d]efendant will continue to pay child support so long as the children remain enrolled as full-time students for a period not to exceed four years after graduation from high school. The child support and
education costs will be reviewed and adjusted as may be necessary at the time the child's enrollment in college, based on the case of Newburgh v. Arrigo and law at the time.
88 N.J. 529 (1982).
Paragraph 17 states in pertinent part:
The minor children shall be deemed emancipated upon the earliest happening of the following:
a) Attaining the age of eighteen years or the completion of four academic years of continuous college education, whichever event last occurs. It being understood that the interruption of a child's education as the result of a substance abuse problem shall not postpone his or her emancipation, notwithstanding the recognition above of substance abuse as a valid medical condition;
The son began college at Rutgers University in September 2007. Due to his poor academic progress, he transferred to Raritan Valley Community College in January 2009. In January 2010, he returned to Rutgers, transferring some, but not all, of the credits he earned while at community college. As of May 15, 2011, the date on which the parties anticipated he would graduate after four continuous years of college attendance, the son remained forty-eight credits shy of graduation.
In his Spring 2011 semester at Rutgers, he earned three C's and a D. The motion judge found the son's "efforts to pursue a college degree to be in good faith despite not graduating in four years because he continued to pursue his education in a cost-effective and, for him, a slightly less competitive environment given his mediocre grades at Rutgers." He also found that the son continued to live with his mother and depended on her for support.
Defendant raises the following issues on appeal:
POINT I: [THE JUDGE] FAILED TO CONSIDER THE PARTIES' PSA, FAILED TO CONSIDER ANY CASE LAW REGARDING THIS DOCUMENT'S WEIGHT AND FAILED TO ACKNOWLEDGE ANY OF THE DEFENDANT'S INFORMATION AND ARGUMENTS PRESENTED IN HIS CERTIFICATIONS AND AT ORAL ARGUMENTS.
POINT II: [THE JUDGE] ERRED BY BASING HIS DECISION UPON ILLOGICAL AND INACCURATE REASONING THAT IS NOT SUPPORTED BY THE CASE LAW.
POINT III: [THE JUDGE] FAILED TO CONDUCT A PROPER HEARING AND MADE HIS CONCLUSIONS PRIOR TO HAVING A MOTION HEARING.
POINT IV: THIS CASE SHOULD BE REMANDED TO A DIFFERENT JUDGE TO DETERMINE CHILD SUPPORT OBLIGATIONS FROM THE DATE OF ANDREW'S EMANCIPATION AND THE CREDIT DUE TO THE DEFENDANT.
On seven prior occasions, defendant has appealed post-judgment matrimonial orders. Those appeals have resulted in five opinions affirming the motion court. Miller v Tafaro, No. A-3709-09, 2011 N.J. Super. Unpub. LEXIS 1368 (App. Div. May 27, 2011) (consolidating two appeals and affirming orders enforcing payment of college costs and child support); Miller v Tafaro, No. A-2120-09, 2011 N.J. Super. Unpub. LEXIS 49 (App. Div. January 7, 2011) (consolidating two appeals and affirming requirements that Tafaro pay certain college costs and counsel fees and complete financial aid forms); Miller v. Tafaro, No. A-4469-07, 2009 N.J. Super. Unpub. LEXIS 1150 (App. Div. May 12, 2009) (affirming requirement that Tafaro pay seventy-five percent of the children's college expenses); Tafaro v. Tafaro, No. A-1189-05, 2006 N.J. Super. Unpub. LEXIS 1327 (App. Div. Aug. 16, 2006) (affirming (1) requirement that Tafaro pay for a parenting time coordinator, (2) denial of Tafaro's motion to remove the coordinator, (3) affirming amendment of a related final domestic violence restraining order, and (4) denying Tafaro's request that the matter be assigned to a different judge); and Tafaro v. Tafaro, No. A-4402-04, 2006 N.J. Super. Unpub. LEXIS 2874 (App. Div. July 13, 2006) (affirming parenting time decisions and denying request that the matter be assigned to a different judge).
We acknowledge our general deference to factual findings made by Family Part judges when they are supported by "'adequate, substantial, credible evidence.'" Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "Because 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. "Minimally adequate fact finding requires a discussion that demonstrates that the court has heard and addressed the relevant facts and claims under the controlling legal standards." Gordon v. Rozenwald, 380 N.J. Super. 55, 76-77 (App. Div. 2005) (citing Bailey v. Bd. of Review, 339 N.J. Super. 29, 33 (App. Div. 2001)). "A trial court's rulings in such matters are discretionary and not overturned unless the court abused its discretion, failed to consider controlling legal principles or made findings inconsistent with or unsupported by competent evidence." Id. at 76 (citations omitted).
The parties in this matter submitted conflicting certifications regarding their disparate interpretation of the PSA. The motion judge's findings were based solely on the parties' written submissions and oral argument. Thus, we do not owe the same degree of deference to the motion judge's fact finding as we would if the judge had made credibility findings after a plenary hearing. See P.B. v. T.H., 370 N.J. Super. 586, 601 (App. Div. 2004) ("Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility because, having heard the case, and seen and observed the witnesses, the trial court has a better perspective than a reviewing court in evaluating the veracity of witnesses.").
The contractual nature of matrimonial agreements has long been recognized in New Jersey. Pacifico v Pacifico, 190 N.J. 258, 265 (2007) (citing Harrington v. Harrington, 281 N.J. Super. 39, 46 (App. Div.), certif. denied, 142 N.J. 455 (1995)). As a general rule, a contract's terms should be enforced as the parties intended. Id. at 266. The PSA in this case delineates the circumstances intended by the parties to qualify as events of emancipation, one of which is completion of four years of college.
In light of the language that child support will continue "for a period not to exceed four years after graduation from high school" in paragraph 14 of the PSA, defendant makes a strong argument that this provision was a bargained-for, thoughtful and specific articulation not subject to interpretation. Plaintiff Melanie M. Tafaro, however, argued before the motion judge that Rutgers did not accept fifteen credits earned by the son at Raritan and the son's part-time work at Wal-Mart caused him to fail Calculus I. He then stopped working and took the course again. She thus furnished support for the judge's conclusion that the son made a good-faith effort to complete college.
Plaintiff did not submit an appellate brief, but defendant appended her trial pleadings to his brief.
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The language in paragraph 17(a) of the PSA that "the interruption of a child's education as the result of a substance abuse problem shall not postpone his or her emancipation" also supports the conclusion that the parents anticipated some circumstances might reasonably delay emancipation after completing four years of college.
At the time of the PSA, defendant earned $264,784 as a dentist and plaintiff earned $63,856. PSA ¶ 5 and ¶ 11. Their joint income indicates an ability to put their two children through college even if it took more than four years. It was not an abuse of discretion for the judge, in an effort to protect the child's welfare, to investigate whether the parties intended to limit the children to four years of college under all circumstances or whether they intended to support their children's pursuit to obtain a college degree even if it required longer than four years. Such an inquiry, however, could not be resolved without a plenary hearing.
A plenary hearing is necessary in light of the parties' inability to agree on the meaning of terms in the written PSA. See Pacifico, supra, 190 N.J. at 266-67 (remanding for a plenary hearing where a PSA provided for a buyout of the marital home but did not specify the pricing terms to which the parties disagreed); see also Harrington, supra, 281 N.J. Super. at 47. At the hearing, the judge will have an opportunity to assess the credibility of the parties' assertions, as tested through the rigors of cross-examination. Eaton v. Grau, 368 N.J. Super. 215, 222 (App. Div. 2004).
Reversed and remanded for a plenary hearing. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELATE DIVISION