PER CURIAM

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Hoffman. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-254-08. Paul Lomberg argued the cause for appellant (Lomberg & Del Vescovo, LLC, attorneys; Mr. Lomberg, Francine Del Vescovo, and Janet S. Del Gaizo, on the brief). Arthur Del Colliano argued the cause for respondent. PER CURIAM

Plaintiff L.B.G. appeals from the February 13, 2013 Family Part order granting the motion of defendant J.P.G. to compel plaintiff "to bear the full cost of private Catholic high school" for parties' son, and denying plaintiff's cross-motion to enjoin defendant from disparaging parochial schools. We affirm in part, reverse in part, and remand for a plenary hearing.

I.

We discern the following facts from the record. Plaintiff and defendant wed in September 1997. They had one child, Phillip, who was born in August 1999. On January 10, 2005, the parties divorced and executed a Property Settlement Agreement ("PSA").

The PSA provided that the parties would share joint legal custody of Phillip. Plaintiff was the parent of primary residence, and was solely responsible for child support for Phillip until May 1, 2007. The PSA provided for defendant to have parenting time on Thursday evenings and Sunday afternoons. Both parties waived alimony, and defendant waived his interest in the former marital home. They agreed to split Phillip's college expenses evenly, and to cooperate on all important child-rearing decisions.

On October 30, 2008, the parties filed a consent order that changed defendant's parenting time to Wednesday evenings and Saturday afternoon until Sunday afternoon. Defendant also agreed to begin paying plaintiff $490 per week in child support, effective November 8, 2008.

Phillip attended public school until the fall of 2012, when he transferred to a Catholic middle school. According to plaintiff, Phillip's public school classmates had begun bullying him, causing him to regress. Despite the fact that defendant is Catholic, and that much of his family attended parochial high schools, defendant opposed Phillip's transfer. On November 8, 2012, defendant filed the instant motion, seeking to prevent plaintiff from enrolling Phillip in Bergen Catholic High School, or, in the alternative, to absolve defendant from any obligation to contribute to the cost of a parochial high school education.

On December 19, 2012, plaintiff cross-moved for contribution towards the costs of parochial middle school and high school, and to enjoin defendant from disparaging parochial schools. Plaintiff certified that Phillip "has adjusted well to the rigors" of his parochial middle school and "has made many new friends." Plaintiff further certified that she had reached an agreement with defendant whereby she would pay for all of the middle-school tuition, and half of the high-school tuition, with defendant to pay the remaining half of the high-school tuition. In a reply certification, defendant disputed the existence of such an agreement, asserting that plaintiff's claim "has no credibility whatsoever."

Both parties submitted evidence concerning the cost and fitness of the parochial and public high schools in the region. In particular, plaintiff certified that the parochial school schedules would allow Phillip to pursue competitive swimming without disrupting other extracurricular activities. The parties' certifications also disputed defendant's actual level of involvement in Phillip's day-to-day life.

The motion court heard oral argument on January 11, 2013. The court, distinguishing the motions before it, bifurcated the issue of plaintiff's decision to send Phillip to parochial school from defendant's obligation to contribute towards tuition. The court awarded a presumption in favor of plaintiff on the former issue, by analogy to an action to change the name of a minor child, citing Gubernat v. Deremer, 140 N.J. 120, 145 (1995), and allotted the burden of proof to plaintiff on the latter issue, effectively creating a presumption in favor of defendant.

After weighing the factors articulated in Hoefers v. Jones, 288 N.J. Super. 590, 611-12 (Ch. Div. 1994), aff'd o.b. 288 N.J. Super. 478, (App. Div. 1996), the court found no relative advantage between the public and parochial schools in the area, and concluded that neither party overcame his or her respective burden or presumption. Accordingly, the court denied defendant's motion to enjoin plaintiff from enrolling Phillip in a parochial high school, but granted defendant's motion to compel plaintiff to bear the full cost of Phillip's "Catholic high school" education while denying plaintiff's cross-motion for contribution from defendant. Finding that plaintiff submitted no evidence that defendant had disparaged parochial schools, the court denied plaintiff's cross-motion to restrain defendant from making such comments.

On appeal, plaintiff argues that the motion court erred by: (1) bifurcating the attendance and tuition issues; (2) failing to address the equitable defenses raised by plaintiff; and (3) denying her motion to enjoin defendant from disparaging parochial schools. Defendant does not cross-appeal from the denial of his motion to enjoin plaintiff from enrolling Phillip in a Catholic high school.

II.

We afford special deference to the family court's "special jurisdiction and expertise" when reviewing findings of fact. In re State ex rel. A.P., 212 N.J. 200, 230 (2012) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). However, that deference is tempered where there is no plenary hearing, and thus no opportunity for the motion court to hear live testimony. See N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) ("[W]hen no hearing takes place, no evidence is admitted, and no findings of fact are made, . . . appellate courts need not afford deference to the conclusions of the trial court."). We also review legal decisions de novo. D.W. v. R.W., 212 N.J. 232, 245 (2012).

Contribution towards private schooling is an aspect of child support, which is governed by N.J.S.A. 2A:34-23a. The amount of child support requires consideration, among other factors, of the "[n]eed and capacity of the child for education[.]" As with any family court matter, the overriding consideration of a child support decision is the best interests of the child. Colca v. Anson, 413 N.J. Super. 405, 414 (App. Div. 2010).

In Hoefers, supra, 288 N.J. Super. at 611-12, the trial court articulated fourteen factors relevant to a motion to compel payment of private school tuition. On appeal, we signaled our approval of that framework by affirming substantially for the reasons stated in the trial court's opinion. Hoefers, supra, 288 N.J. Super. at 479.

Generally, the party seeking modification of child support bears the burden of proof, and must show changed circumstances. Miller v. Miller, 160 N.J. 408, 420 (1999). However, the best interests of the child preclude application of the burden of proof as a strict presumption. Notably, in Emma v. Evans, 215 N.J. 197, 217-19 (2013), our Supreme Court limited Gubernat, supra, 140 N.J. 120, rejecting a presumption in favor of the custodial parent in a "major decision" like an action to change a minor's surname. The Court found that "continued use [of the presumption] arguably can shrink the best-interests analysis to an automatic endorsement of the primary custodial parent's choice . . . ." Emma, supra, 215 N.J. at 218.

Here, the motion court bifurcated the attendance and tuition issues, and applied a presumption in favor of the non-moving party on each issue. Weighing the evidence before it, the court found the schools equal, effectively declining to determine which was in Phillip's best interests, and thus decided both issues by presumption.

The court determined that Phillip should go to parochial school, and defendant has not challenged that decision. We conclude, however, that the court erred by employing a presumption in favor of defendant in determining whether he should share in the costs of sending Phillip to private Catholic high school. The result failed to acknowledge or address defendant's obligation to support Phillip's best interests. See Martinetti v. Hickman, 261 N.J. Super. 508, 513 (App. Div. 1993) ("[A] parent is obliged to contribute to the basic support needs of an unemancipated child to the extent of the parent's financial ability . . . ."); Hoefers, supra, 288 N.J. Super. at 604 ("'Best interests' means, among other things, the right of children to be supported, nurtured, [and] educated in accord with the collective available income of both parents[.]"). The court should have resolved the contribution issue by considering the Hoefers factors.

The motion court also failed to decide substantive issues of disputed fact, including the existence of an alleged prior agreement between the parties regarding tuition, as well as defendant's actual level of involvement in Phillip's day-to-day life. "[T]rial judges cannot resolve material factual disputes upon conflicting affidavits and certifications." Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.), certif. denied, 142 N.J. 455 (1995); accord Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div. 1982). Accordingly, we reverse the denial of plaintiff's cross-motion to compel contribution towards the cost of Catholic high school and remand for a plenary hearing.

We briefly address defendant's arguments that: (1) the PSA, by omission, waived plaintiff's right to contribution towards private grade school; (2) under Rosenthal v. Rosenthal, 19 N.J. Super. 521, 526 (Ch. Div. 1952) modified on other grounds, 26 N.J. Super. 400 (App. Div. 1953), parents are not obligated to contribute towards private school tuition; and (3) plaintiff's appeal is barred by the acceptance-of-benefits doctrine.

First, the failure to address private grade school in the PSA, while a relevant factor, does not bar plaintiff's right to seek contribution. Finger v. Zenn, 335 N.J. Super. 438, 444 (App. Div. 2000), certif. denied, 167 N.J. 633 (2001). Second, Rosenthal has been superseded, and is no longer good law. Hoefers, supra, 288 N.J. Super. at 613-14. Third, the acceptance-of-benefits doctrine is not applicable here, where plaintiff's appeal is neither inconsistent with, nor a repudiation of, the benefit she received. Simon v. Simon, 148 N.J. Super. 40, 42 (App. Div.), certif. denied, 75 N.J. 12 (1977).

Finally, as to the denial of plaintiff's cross-motion to restrain defendant from making disparaging comments to Phillip about enrollment in parochial school, we discern no basis for disturbing the motion court's determination that plaintiff failed to present any evidence in support of this request for relief.

Affirmed in part, and reversed and remanded, in part. 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 APPELLATE DIVISION