Opinion
DOCKET NO. A-2654-14T4 DOCKET NO. A-0929-15T4
02-17-2017
MELANIE M. TAFARO, Plaintiff-Respondent, v. STEPHEN TAFARO, Defendant-Appellant.
Stephen Tafaro, appellant, argued the cause pro se. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Koblitz and Sumners. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-942-12. Stephen Tafaro, appellant, argued the cause pro se. Respondent has not filed a brief. PER CURIAM
Defendant Stephen Tafaro appeals from two orders of the Family Court. We consolidate these appeals for the purpose of writing one opinion. In his appeal of a January 2, 2015 order denying his motion for reconsideration of a November 21, 2014 order, defendant primarily argues that the trial court judge abused his discretion by finding after a plenary hearing that, while defendant's son was found to be emancipated as of May 2011, his child support obligation for his son continued for an additional year. While this appeal was pending, defendant also appealed a September 28, 2015 order denying reconsideration of a July 27, 2015 order, arguing that the judge abused his discretion by denying defendant's request to modify child support. Defendant sought modification of child support for the year after his son had been emancipated. We affirm.
The parties were married on April 25, 1987, and had two children: their son, born in 1989, and daughter, born in 1990. Defendant is a pediatric dentist and plaintiff works in the medical field. The parties were divorced in 2004. Despite a Property Settlement Agreement (PSA) purporting to settle all issues, defendant has continued to litigate matters of custody, child support, and emancipation.
Defendant has appealed nine times prior to the current two appeals under consideration. We have issued seven opinions. Miller v. Tafaro, Nos. A-3709-09 and A-5461-09 (App. Div. May 27, 2011)(consolidating two appeals and affirming orders enforcing payment of college costs and child support because defendant was seeking to relitigate orders that had already been decided and affirmed); Miller v. Tafaro, Nos. A-2120-09 and A-3039-09 (App. Div. January 7, 2011) (consolidating two appeals and affirming requirements that defendant pay certain college costs and counsel fees and complete financial aid forms and denial of defendant's motion for judicial recusal), certif. denied, 205 N.J. 519 (2011); Miller v. Tafaro, No. A-4469-07 (App. Div. May 12, 2009)(affirming requirement that defendant pay seventy-five percent of the children's college expenses and stating "[a]ll of [the post-judgment disputes] have been precipitated by [defendant's] refusal to abide by the terms of the PSA and/or subsequent court orders, or by his unremitting belligerence with [plaintiff]"); Tafaro v. Tafaro, No. A-1189-05 (App. Div. August 16, 2006) (affirming (1) requirement that defendant pay for parenting time coordinator, (2) denial of defendant's motion to remove the coordinator, (3) amendment of a related final domestic violence restraining order, and (4) denial of defendant's request that the matter be assigned to a different judge); and Tafaro v. Tafaro, No. A-4402-04 (App. Div. July 13, 2006) (affirming parenting time decisions and denying request that the matter be assigned to a different judge).
Defendant has also brought actions involving several of the judges involved in the matter. See e.g. Tafaro v. Mawla, No. A-4858-11 (App. Div. 2013)(affirming dismissal of defendant's complaint against the judge for violating defendant's constitutional and civil rights for failing to state a claim upon which relief can be granted), certif. denied, 216 N.J. 6 (2013); Tafaro v. Miller, No. 11-4231, 2011 U.S. Dist. LEXIS 139847, at *7 (D.N.J. Dec. 6, 2011)(dismissing defendant's 42 U.S.C.A. § 1983 action against plaintiff and the State of New Jersey for a "conspiracy to deprive him of federal rights" because to "the extent that [defendant] asserts any discernible claims . . . such allegations appear to be based on mere speculation and thus are without merit").
Defendant's two most recent appeals concern the emancipation of his children. On June 13, 2012, we issued an opinion regarding a July 22, 2011 order denying defendant's application to emancipate his estranged son, who had completed four years of college without graduating. Tafaro v. Tafaro, No. A-6134-10 (App. Div. June 13, 2012) (slip op. at 2). Noting that "[t]he parties in this matter submitted conflicting certifications regarding their disparate interpretation of the PSA," we reversed the lower court decision and mandated that the motion judge conduct a plenary hearing on the issue of emancipation. Id. at 5-6.
Before the plenary hearing could occur, the parties' daughter was emancipated on May 12, 2012. On July 16, 2012 and August 31, 2012, the trial court issued orders reducing defendant's support obligation to reflect a temporary continuing obligation to support his son, pending the plenary hearing. Defendant appealed, and on January 22, 2014, we affirmed the trial court's denial of defendant's motion for reconsideration of two orders: "setting a temporary level of child support without prejudice to a plenary hearing and denying his application to retroactively adjust child support from 2007 when the parties' two children entered college." Tafaro v. Tafaro, No. A-0699-12 (App. Div. January 22, 2014) (slip op. at 1). Regarding defendant's argument that the support order was unfair, we noted that defendant did not file a motion for leave to appeal the interlocutory order. Id. at 2. We also noted that the "law of the case" doctrine barred defendant's relitigation of the same issue previously decided before the same court. Ibid.
In our 2012 opinion mandating a hearing, we recounted the son's educational history:
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.
Tarfaro, supra, slip op. at 3.
In a footnote, we stated:
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).
Id. at n.1.
On November 5 and 14, 2014, the motion judge held the plenary hearing we ordered. Central to the dispute at hand is the meaning of paragraph fourteen of the parties' PSA. The draft PSA reads as follows:
14. The Husband will continue to pay unadjusted 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 percentage allocation of costs between the Husband and Wife will therefore reflect the Wife's receipt of child support.The final PSA incorporated in the dual divorce judgment contains a similar provision, but certain portions had been crossed out and a hand-written sentence was added and initialed by both parties:
14. The Defendant will continue to payunadjustedchild 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 percentage allocation of costs between the Defendant and the Plaintiff will therefore reflect the Plaintiff's receipt of child support.The child support and education costs will be reviewed and adjusted as may be necessary at the time of each child's enrollment in college, based on the case of Newburgh v.
Arrigo[, 88 N.J. 529, 545 (1982)] and the law at that time.
The underlined portion was hand-written and initialed by the parties.
Under the heading of "Emancipation of Children" paragraph 17(a), the PSA reads:
17. 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[.]
Although he did not graduate from a four-year college, the son did receive two associates degrees from community college and, at the time of the hearing, continued to live with plaintiff.
After listening to the testimony, the motion judge concluded that the parties in paragraph 17 "anticipated some circumstances that might reasonably delay emancipation in excess of four years after enrollment in college." Furthermore, he found that the "parties' intent was not to strictly limit the children's college experience to four years."
The judge relied on the "credible, believable testimony presented." In particular, the judge made the factual finding that "both plaintiff and defendant valued education." The judge stated he "was impressed by the vigorous testimony of the defendant on the value he placed on education" and found it "inconceivable that defendant intended the four-year language to preclude a course of study which necessitated a longer time period."
The judge also found credible plaintiff's testimony that she anticipated certain circumstances that could arise that would interrupt the four-year period and "that she would not have agreed to a provision which would not have had the four-year period tolled as the result of circumstances outside of her children's control." The court did not find credible defendant's testimony that unanticipated events like an auto accident would not toll the time the child had to graduate from college merely because those events were not in the PSA.
Regarding whether an event which would toll emancipation before graduation had indeed transpired, the judge rejected plaintiff's first argument that the son's performance in college had been disrupted due to his diagnosed mental disorder — noting "plaintiff produced solely a single, one-page note from [the son]'s therapist confirming the diagnosis."
The court did find convincing, however, plaintiff's second argument that her son's "college experience was adversely affected by the difficulty she and [the son] experienced in meeting tuition obligations given the defendant's refusal to adhere to his financial obligations under the PSA and various court order." The judge noted the extensive motion history in which the court repeatedly ordered defendant to pay college costs. The judge stated that "[t]o argue that defendant's actions did not hinder [his son]'s academic prospects by placing both [his son] and the plaintiff under severe economic stress would be to ignore reality."
The judge also found that the parties' income — both at the time of the plenary hearing and at the time of the PSA — supports the finding "the parties possessed a joint income which would have allowed them to put their children through college."
The judge recognized "[t]he issue of emancipation is a fact-sensitive one." Referencing Filippone v. Lee, 304 N.J. Super. 301, 311 (App. Div. 1997), the judge stated the son, "as a child of an adequately affluent professional family . . . could reasonably assume that his parents would continue to support him if he were able to do so successfully (pursue college education), and, in the circumstances, the Newburg decision would require him to do so." The judge then quoted an earlier July 22, 2011 order that stated:
Proof of full-time student status requires registration for a full-time class load coupled with efforts designed to satisfy the degree or certificate requirements of the educational institution. Implicit in this standard is the child must act in good faith. The child must attend class and comply with other course requirements in the effort to satisfactorily pass.
Defendant did not supply a copy of this order. --------
Because the son had failed to meet the prior order's condition of graduation from Rutgers, the judge, "irrespective of defendant's contribution to [the son]'s requiring more time to complete his degree, deem[ed the son] emancipated effective May 15, 2011."
Despite determining the son was emancipated in May 2011, the judge went on to find that because the "parties' intent was not to strictly limit the college experience to four years" and because the son "reasonably relied upon [the prior judge]'s Order that he could continue his college studies, child support payments should continue until May 15, 2012." The judge found that support payments "were required to protect [the son]'s welfare and were necessitated in part by defendant's conduct."
We accord "substantial deference to the trial court's findings of fact provided that they are 'supported by adequate, substantial and credible evidence.'" Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382-83 (App. Div. 2015) (quoting Cosme v. Borough of E. Newark Twp. Comm., 304 N.J. Super. 191, 202-03 (App. Div. 1997), certif. denied, 156 N.J. 381 (1998)). In particular, we "are charged to accord substantial regard to the conclusions of trial judges and to discretionary determinations that flow from them." Cosme, supra, 304 N.J. Super. at 202-03. "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). In non-jury cases, the trial judge's findings should be respected "unless . . . they are so wholly insupportable as to result in a denial of justice." Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 483-84 (1974).
Unlike findings of fact, "appellate review of legal determinations is plenary." State v. Reece, 222 N.J. 154, 167 (2015). We do not interfere with the factual findings made by the court after a plenary hearing. "A determination of emancipation is a legal concept, imposed when the fundamental dependent relationship between parent and child ends." Llewelyn v. Shewchuk, 440 N.J. Super. 207, 215 (App. Div. 2015). As a general principle, "the parent relinquishes the right to custody and is relieved of the burden of support, and the child is no longer entitled to support. Filippone, supra, 304 N.J. Super. at 308; see also Newburgh, supra, 88 N.J. at 543.
Here, the trial judge determined that Andrew was emancipated as of May 2011 because he had not fulfilled the prior judge's order to graduate from Rutgers by May of 2012. Yet, the trial judge also determined that a reasonable interpretation of PSA at the time it was signed allowed for the extension of support under certain circumstances. The court then went on to find that such circumstances had occurred here, stating: "[t]he [c]ourt finds as reasonable that the defendant's economic intransigence contributed to [the son]'s need to work part-time while attending [] Community College."
Following our suggestion in our June 2012 opinion that remanded for a plenary hearing, the court relied on J.S., supra, 389 N.J. Super. at 205, for the proposition that "[e]mancipation does not automatically result in a retroactive termination of child support." In J.S., DNA testing revealed that the child for whom the man was paying pendente lite child support was not biologically his. Id. at 203. Nevertheless, the court determined that requiring reimbursement would be contrary to the best interest of the child. Id. at 205. It further determined that the mother had not been "unjustly enriched by her use of the money to care for her child." Ibid. Here also the son lived with his mother, who anticipated child support payments would continue because the order in effect did not anticipate emancipation until May 2012.
Emancipation generally triggers a cessation of child support. See Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995) (holding a family court may retroactively emancipate a child and terminate child support as of the date of that emancipation without violating N.J.S.A. 2A:17-56.23a); Bowens v. Bowens, 286 N.J. Super. 70, 73 (App. Div. 1995) (reversing the denial of a motion seeking elimination of all support arrearages due to retroactive emancipation of the child). Yet, this is an unusual situation.
The motion court determined after the parties' testimony that section 17(a) of their PSA was written to allow a delay in emancipation and an extension of time to pursue a college degree under certain circumstances. The court also determined that such a circumstances existed here due to defendant's history of failing to pay support. Yet, the court went on to emancipate the son because of his failure to get a four-year college degree, and then ordered this result. Support to continue for an additional year, while unusual, complies with our direction upon remand and equitably resolves this peculiarly complicated factual situation.
Filippone, cited by defendant, is not applicable to these circumstances. In Filippone, we determined that the son was emancipated when he not only failed his spring semester of college, but also failed "to return to school in the ensuing fall semester." Filippone, supra, 304 N.J. Super. at 311. Here, the record does not disclose the son's grades during his 2011 to 2012 college attendance — merely that he did not get a degree from Rutgers. The son ultimately received two associates degrees from a different college. As we stated in our June 2012 opinion, another 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." Tafaro, supra, at 3.
Defendant's appeal of the September 28, 2015 order denying his motion for reconsideration to modify support for his daughter alone is rendered moot by our affirmance of continued child support for the son, which requires defendant to continue support for both children until the same month. The numerous other issues raised by defendant are without sufficient merit to require discussion in this opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION