                                NOT FOR PUBLICATION WITHOUT THE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.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4321-17T2

K.S.,

          Plaintiff-Respondent,

v.

J.S.,

     Defendant-Appellant.
_____________________________

                    Argued March 20, 2019 – Decided April 4, 2019

                    Before Judges Reisner and Mawla.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Monmouth County,
                    Docket No. FM-13-0267-07.

                    J.S., appellant, argued the cause pro se.

                    K.S., respondent pro se.

PER CURIAM
        Defendant J.S.1 appeals from a post-judgment order dated April 12, 2018,

which addressed issues of child support, college payments, and parenting time.

We affirm in part, and reverse and remand in part, for the reasons set forth in

this opinion.

        We take the following facts from the record. The parties were married for

more than six years when the court entered a judgment of divorce on October

19, 2006, incorporating a property settlement agreement (PSA). A daughter and

son were born of the marriage, who are presently nineteen and seventeen years

of age, respectively.

        In May 2015, plaintiff K.S. filed a motion to enforce litigant's rights

requesting defendant pay his portion of expenses set forth in the PSA and child

support. Defendant filed a cross-motion to force the sale of the marital home,

located in Hazlet, and restrict plaintiff from relocating out-of-state. The court

directed the matter to mediation. The court subsequently signed an order dated

September 3, 2015, setting defendant's child support obligation at $455 per

week. On January 12, 2016, the court entered an order scheduling a case

management conference to address the unresolved issues.




1
    We utilize initials to protect the parties' and the children's privacy.
                                                                              A-4321-17T2
                                           2
      On September 9, 2016, the parties filed a consent order, which resolved

the remaining issues. The consent order stated the following:

                  CUSTODY AND PARENTING TIME

                  18. Plaintiff shall continue to be the [parent of]
            primary residence and [d]efendant the parent of
            alternate residence.

                   19. [The son] shall commute from Hazlet . . . to
            [New York City] during the week and if [d]efendant has
            a room set up for [the son], he will be allowed to have
            overnights with [d]efendant during the week, if [the
            son] so chooses. . . . Defendant shall have one weekend
            per month with [the son], if [the son] is residing in NYC
            from Monday to Thursday, which shall be agreed upon
            at the beginning of the school year with the parties to
            make efforts to coordinate those weekends with
            functions in the city or defendant's holidays. Plaintiff
            shall continue to remain the parent of primary residence
            of both children.

      The consent order also required defendant to continue paying child

support of $455 per week, and expressly contemplated the daughter's college

attendance beginning in fall 2017, and the son's enrollment at a private high

school in New York City in fall 2016. The consent order specifically noted the

fact the son's attendance of high school in New York City would not constitute

a change in circumstances enabling a modification of child support.

      The consent order also stated:



                                                                        A-4321-17T2
                                       3
            The parties agree that each shall contribute toward their
            children's college education. College expenses shall
            include tuition, room and board, miscellaneous school
            fees, books, computer, supplies, transportation, meal
            plans, and any other college related costs and expenses
            which are not covered by student loans, grants, work-
            study or scholarships. The child shall accept all
            possible financial aid and subsidized Stafford loans
            available to him or her. Defendant has an income of
            approximately $167,000 per year after deducting his
            child support obligation and [p]laintiff has an income
            of approximately $58,000.00 per year including child
            support by [d]efendant.       Based on the parties[']
            respective incomes, [d]efendant shall be responsible for
            seventy-five . . . percent and [p]laintiff shall be
            responsible for twenty[-]five . . . percent of any college
            expenses not covered by the child's financial aid as set
            forth above.

The parties also agreed to split the cost of the daughter's car insurance once she

turned seventeen and obtained her driver's license.

      In January 2017, plaintiff filed an order to show cause to transfer the son

from his high school in New York City to a school in Bensalem, Pennsylvania,

near her residence. The court granted the application.

      In November 2017, defendant filed a motion, in pertinent part, to enforce

the consent order's provisions concerning parenting time with the parties' son,

and payment of the daughter's college expenses and car insurance. He also

requested sanctions and attorney's fees due to plaintiff's refusal to mediate these

issues. Plaintiff cross-moved to enforce litigant's rights, including the payment

                                                                           A-4321-17T2
                                        4
of child support arrears, defendant's obligation for their daughter's car insurance,

reimbursement of medical expenses, and contribution to their son's

extracurricular activities.

      The motion judge interviewed the parties' son in camera, but failed to

record the interview. Subsequently, the judge signed the April 12, 2018 order,

which denied defendant's requests for parenting time and modification of child

support. In her written findings, the judge stated she considered the son's

representation during the interview that he was seeing defendant "at least

monthly and planned to continue to do so." Thus, the judge concluded "[i]n

light of the child's age," it was not appropriate to order parenting time with

defendant. The judge also found defendant did not present an "extreme change

of circumstances that warrants modification of the parties' agreed upon

parenting time schedule or child support."

      The motion judge also denied defendant's request that plaintiff pay

twenty-five percent of their daughter's college tuition pursuant to the consent

order. Specifically, the judge stated:

             Based on the parties' [c]ertifications, this [court] finds
             that it is inequitable for [plaintiff] to contribute
             [twenty-five percent] towards college contribution. It
             is clear that [plaintiff] does not have the money to
             contribute more than what she already has. Therefore,
             this [c]ourt finds that [plaintiff] shall be obligated to

                                                                            A-4321-17T2
                                         5
            contribute twenty[-]five percent . . . towards college
            expenses at a rate consistent with an in-state and public
            college/university. [Plaintiff] has provided [defendant]
            with [$2000] . . . towards college expenses and so
            [plaintiff]'s obligation towards college expenses has
            been satisfied.

The motion judge also denied defendant's request for sanctions and counsel fees.

The order granted plaintiff's cross-motion to enforce litigant's rights. This

appeal followed.

                                        I.

      "Appellate courts accord particular deference to the Family Part because

of its 'special jurisdiction and expertise' in family matters." Harte v. Hand, 433

N.J. Super. 457, 461 (App. Div. 2013) (quoting Cesare v. Cesare, 154 N.J. 394,

412 (1998)). "We do 'not disturb the "factual findings and legal conclusions of

the trial judge unless . . . convinced that they are so manifestly unsupported by

or inconsistent with the competent, relevant and reasonably credible evidence

as to offend the interests of justice."'" Gnall v. Gnall, 222 N.J. 414, 428 (2015)

(alterations in original) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of

Am., 65 N.J. 474, 484 (1974)).        Therefore, "[o]nly when the trial court's

conclusions are so 'clearly mistaken' or 'wide of the mark' should we interfere[.]"

Ibid. (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104

(2008)). "We will reverse only if we find the trial judge clearly abused his or

                                                                           A-4321-17T2
                                        6
her discretion[.]" Clark v. Clark, 429 N.J. Super. 61, 72 (App. Div. 2012).

However, "all legal issues are reviewed de novo." Ricci v. Ricci, 448 N.J. Super.

546, 565 (App. Div. 2017) (citing Reese v. Weis, 430 N.J. Super. 552, 568 (App.

Div. 2013)).

      Defendant raises the following arguments on appeal: 1) the motion judge

abused her discretion when she declined to enforce the parenting time provisions

of the consent order with the parties' son; 2) when plaintiff opposed defendant's

motion, she was actually seeking a modification of parenting time and the judge

erred because she did not make any findings as to whether there was a change

in circumstances; 3) the parenting time issue was not moot because, contrary to

his representations, the parties' son had not been seeing defendant; 4) the judge

interviewed the parties' son over defendant's objection and further erred when

she did not make a recording of the interview; 5) the judge permitted the parties'

son to schedule parenting time on his own, which essentially re-wrote the terms

of the consent order; 6) the judge erred when she denied defendant's request for

a downward modification of child support and failed to impute an income to

plaintiff; 7) the judge erred when she found defendant had to establish an

"extreme" change in circumstances in order to modify child support; 8)

defendant established a change in circumstances because his income had


                                                                          A-4321-17T2
                                        7
declined, his living expenses increased, plaintiff is voluntarily unemployed, and

plaintiff's standard of living has increased by virtue of her cohabitation with a

fiancé; 9) the judge erred when she did not enforce plaintiff's obligation to pay

twenty-five percent of their daughter's college expenses and limited plaintiff's

contribution without holding a plenary hearing or requiring her to complete a

case information statement (CIS); and 10) the judge erred by failing to sanction

plaintiff for refusing to attend mediation, as required by the consent order, and

award defendant counsel fees for enforcing the order.

                                       A.

      Rule 5:8-6 empowers "the court . . . on its own motion or at the request of

a litigant [to] conduct an in camera interview with the child(ren)." If a court

chooses to conduct an interview with the child,

            Rule 5:8–6 mandates the court to: (1) conduct an
            interview with the child in camera; (2) "afford counsel
            the opportunity to submit questions for the court's use
            during the interview"; (3) "place on the record its
            reasons for not asking any question thus submitted"; (4)
            create and preserve a stenographic or recorded audio
            record of each interview in its entirety; and (5) provide
            transcripts of the interview(s) to counsel and the parties
            upon request and payment for the cost.

            [D.A. v. R.C., 438 N.J. Super. 431, 459 (App. Div.
            2014) (quoting Peregoy, 358 N.J. Super. at 206)
            (quoting Rule 5:8-6).]


                                                                         A-4321-17T2
                                        8
      Because the motion judge did not comply with these requirements, we

must determine whether the oversight constitutes reversible error. Generally, to

be reversible, error must be clearly capable of producing an unjust result. State

v. Castagna, 187 N.J. 293, 312 (2006). If the error is harmless, it will be

disregarded by the court. State v. Macon, 57 N.J. 325, 333 (1971). The prospect

of an unjust result must be "sufficient to raise a reasonable doubt as to whether

the error led the [fact-finder] to a result it otherwise might not have reached."

Id. at 336.

      Here, the motion judge arguably had enough evidence to adjudicate the

parenting time dispute without conducting an in camera interview with the son

because of the order permitting the son to change schools and the consent order

granting him discretion to choose his residence. Moreover, at oral argument,

defendant clarified he does not seek a remand for the motion judge to re-

interview the parties' son because he opposed an interview from the onset.

Therefore, although the judge erred by failing to record the interview, the error

was harmless.

      Furthermore, "the age-of-majority statute provides that . . . 'every person

[eighteen] or more years of age shall . . . be deemed to be an adult,' N.J.S.A.

9:17B–3, in order to exercise 'the basic civil . . . rights' of adults, N.J.S.A.


                                                                         A-4321-17T2
                                       9
9:17B–1(a)." N.J. Div. of Youth & Family Servs. v. W.F., 434 N.J. Super. 288,

296 (App. Div. 2014). "Adults normally are not under the custody of another."

Ibid. "Therefore, the issue of custody of . . . children become[s] moot when they

turn[] eighteen-years-old."     Id. at 296-97.     "It is firmly established that

controversies which have become moot or academic prior to judicial resolution

ordinarily will be dismissed." Id. at 297 (quoting Cinque v. N.J. Dep't. of Corr.,

261 N.J. Super. 242, 243 (App. Div. 1993)). An appellate court will only decide

a moot matter if the issues at hand "involve significant matters of public policy,

are extremely important, and undoubtedly will recur in cases that are likely to

be mooted before adjudication." In re N.N., 146 N.J. 112, 124 (1996).

      As we noted, the parties' son is seventeen. He will become an adult in

May 2019. A remand of this matter to re-interview the parties' son on the record,

which defendant concedes he does not desire, would be an unwise expenditure

of judicial resources given the circumstances.

                                        B.

      We turn to the issues concerning child support and the terms of the

matrimonial settlement agreement.       Matrimonial settlement agreements are

"'entitled to considerable weight with respect to their validity and enforceability'

in equity, provided they are fair and just" because they are "essentially


                                                                            A-4321-17T2
                                        10
consensual and voluntary in character[.]" Dolce v. Dolce, 383 N.J. Super. 11,

20 (App. Div. 2006) (quoting Petersen v. Petersen, 85 N.J. 638, 642 (1981)); see

also Lepis v. Lepis, 83 N.J. 139, 153 (1980).         However, courts retain the

equitable power to modify support provisions at any time. Lepis, 83 N.J. at 145.

      The child support provisions of a matrimonial settlement agreement are

subject to review and modification on a showing of changed circumstances. Id.

at 146. Under that standard, the judge determines whether the agreement is fair,

equitable, and if it "should receive continued enforcement without

modification." Id. at 148–49. "Courts have consistently rejected requests for

modification based on circumstances which are only temporary or which are

expected but have not yet occurred." Id. at 151.

      "The moving party has the burden of establishing a prima facie case of

changed circumstances before discovery of the opposing spouse's finances will

be ordered." Stamberg v. Stamberg, 302 N.J. Super. 35, 42 (App. Div. 1997)

(citing Lepis, 83 N.J. at 157). "By prima facie is meant evidence that, if

unrebutted, would sustain a judgment in the proponent's favor." Baures v.

Lewis, 167 N.J. 91, 118 (2001). "When the movant is seeking modification of

child support, the guiding principle is the 'best interests of the children.'" Lepis,




                                                                             A-4321-17T2
                                        11
83 N.J. at 157 (quoting Hallberg v. Hallberg, 113 N.J. Super. 205, 209 (App.

Div. 1971)).

      In Lepis, the Court provided a non-exhaustive list of general principles in

which courts have recognized as changed circumstances:

                   (1) an increase in the cost of living . . .

                 (2) increase or decrease in the supporting
            spouse's income . . .

                  (3) illness, disability or infirmity arising after the
            original judgment . . .

                  (4) the dependent spouse's loss of a house or
            apartment . . .

                  (5) the dependent spouse's cohabitation with
            another . . .

                 (6) subsequent employment by the dependent
            spouse . . .

                   (7) changes in federal income tax law . . .

            [Lepis, 83 N.J. at 151 (citations omitted).]

"When children are involved, an increase in their needs — whether occasioned

by maturation, the rising cost of living or more unusual events — has been held

to justify an increase in support by a financially able parent[.]" Ibid.

      Here, as we noted, defendant alleged a multitude of changed

circumstances.    However, the consent order contemplated many of these

                                                                           A-4321-17T2
                                        12
circumstances, namely, the advent of college for the parties' daughter and the

attendant cost of transportation, and the son leaving his school in New York City

and residing with plaintiff. Other circumstances alleged by defendant existed

and were known to the parties at the time they entered into the order, including

defendant's cost of living in New York City, and plaintiff's unemployment and

residence with her fiancé. Some circumstances alleged by defendant simply do

not meet the bar to warrant modification of the consent order, namely, the

fourteen percent drop in defendant's income, which the record does not establish

was a permanent change.

      We agree with defendant the motion judge employed the incorrect

standard when she found he had not established an "extreme" change in

circumstances. However, this too was harmless error because the objective

evidence in the record did not demonstrate defendant had established a prima

facie case for a change in circumstances pursuant to Lepis.

                                       C.

      We reach a different result regarding the motion judge's determination

relating to the college contribution. The order lacked findings to support the

judge's decision.




                                                                         A-4321-17T2
                                      13
      "In appropriate circumstances, parental responsibility includes the duty to

assure children of a college . . . education." Newburgh v. Arrigo, 88 N.J. 529,

544 (1982). "Although the court will enforce an agreement to the extent it is

just and equitable, when it appears no longer fair to do so, the court is not bound

by the agreement or its prior orders." Moss, 289 N.J. Super. at 359 (citing Lepis,

83 N.J. at 146-48). Like any request to modify the terms of a matrimonial

agreement, "if circumstances have changed in such a way that requiring

defendant to pay for college would no longer be equitable and fair, the court also

remains free to alter the prior arrangement." Id. at 359-60 (quoting Lepis, 83

N.J. at 161 n.12).

      In Newburgh, 88 N.J. at 545, the Supreme Court set forth twelve factors

for evaluating claims for contribution towards the cost of higher education,

which are:

             (1) whether the parent, if still living with the child,
             would have contributed toward the costs of the
             requested higher education; (2) the effect of the
             background, values and goals of the parent on the
             reasonableness of the expectation of the child for higher
             education; (3) the amount of the contribution sought by
             the child for the cost of higher education; (4) the ability
             of the parent to pay that cost; (5) the relationship of the
             requested contribution to the kind of school or course
             of study sought by the child; (6) the financial resources
             of both parents; (7) the commitment to and aptitude of
             the child for the requested education; (8) the financial

                                                                           A-4321-17T2
                                        14
            resources of the child, including assets owned
            individually or held in custodianship or trust; (9) the
            ability of the child to earn income during the school
            year or on vacation; (10) the availability of financial aid
            in the form of college grants and loans; (11) the child's
            relationship to the paying parent, including mutual
            affection and shared goals as well as responsiveness to
            parental advice and guidance; and (12) the relationship
            of the education requested to any prior training and to
            the overall long-range goals of the child.

We have upheld the application of the Newburgh factors by a trial court, despite

the presence of an agreement to fund college expenses. See Moss, 289 N.J.

Super. at 359-60.

      Here, the consent order required defendant to pay seventy-five percent,

and plaintiff twenty-five percent, of the children's college expenses.          The

percentage of the parties' contributions was predicated on their incomes at the

time and the financial aid received to offset the cost of college. However, the

motion judge disregarded the consent order and concluded "it is inequitable for

[plaintiff] to contribute [twenty-five percent] towards [the] college contribution.

It is clear that [plaintiff] does not have the money to contribute more than what

she already has." Citing plaintiff's certification, which the motion judge found

credible, the judge limited plaintiff's "twenty[-] five percent [contribution] . . .

towards college expenses at a rate consistent with an in-state and public

college/university."

                                                                            A-4321-17T2
                                        15
      We are constrained to reverse the determination because there is no

evidence the parties intended to limit their college cost obligation to an in-state

or public college education. Indeed, the consent order does not impose such a

limitation, and the parties' daughter was attending a private college in Vermont

when the motion judge adjudicated the dispute.

      Notwithstanding, the judge relied upon plaintiff's certification, which was

disputed by defendant and offered no clarity.         Indeed, at once, plaintiff's

certification cited the in-state tuition cost of a four-year college in Pennsylvania,

certified the parties' daughter "could have also attended [New York] public

universities and received in-state tuition," and certified she believed at the time

their daughter would be attending another university in Pennsylvania on a full

scholarship. In an email submitted with her certification, plaintiff said that only

if her contribution were limited to $2000 per year would she consent to the

daughter attending private college.

      The motion judge's order lacked the necessary findings of fact or

conclusions of law to support her decision. R. 1:7-4(a). Instead, the order

appears to be an amalgamation of the views expressed in plaintiff's certification.

More was required because there was no objective evidence presented to the

judge of plaintiff's inability to pay more than $2000 per year. Indeed, plaintiff


                                                                             A-4321-17T2
                                        16
filed no CIS and her certifications only provided records of defendant's tax

history and a screenshot of her bank account. The evidence presented could not

permit a factfinder to determine plaintiff's college contribution either under the

terms of the consent order or Newburgh, let alone support the result achieved

here. For these reasons, we reverse and remand this aspect of the order, and

direct the parties to present CISs to the motion judge, who shall then determine

whether a plenary hearing is necessary to adjudicate the college contribution

dispute. The judge shall state her findings of fact and conclusions of law.

                                        D.

      Finally, we reject defendant's argument the motion judge erred when she

did not impose sanctions upon plaintiff for failing to attend mediation. We also

reject defendant's assertion it was an error to not award him counsel fees.

      Paragraph twenty-six of the parties' consent order required mediation in

the event a party breached the terms of the order and required the party in breach

to pay the costs of mediation. According to the record, defendant's attorney

emailed plaintiff to schedule mediation. Plaintiff replied as follows: "Prior to

scheduling any mediation we need a list of issues and positions because the party

in the wrong is to pay mediator's fees. Please send me a list of issues your client

is alleging and his positions." Defendant's counsel never proffered the list of


                                                                           A-4321-17T2
                                       17
issues for mediation and instead scheduled a mediation. In response, plaintiff

stated she would not attend mediation until she received a "clear and detailed

list of issues from [his counsel], and specifically what [defendant]'s position

[was on] each issue."

      The motion judge determined defendant had "unilaterally scheduled

mediation without [plaintiff]'s advice and consent. Further, [defendant] failed

to communicate with [plaintiff] as to the issues that were to be addressed in

mediation." We agree. Because mediation is an inherently voluntary process,

plaintiff could not be compelled to attend without first understanding the issues

in dispute and whether she was actually in breach to warrant a mediation.

      We reach a similar conclusion regarding the motion judge's denial of

counsel fees. "An allowance for counsel fees and costs in a family action is

discretionary." Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004) (citing

R. 4:42–9(a)(1)).

      Here, the judge concluded plaintiff's cross-motion was in good faith and

was successful. The judge determined defendant's application was in bad faith

and he had the ability to pay his own counsel fees. The judge concluded the

circumstances did not warrant an award of counsel fees to either party.




                                                                          A-4321-17T2
                                      18
      Our review of the record supports the motion judge's conclusions.

Although the judge's determination of the college issue was erroneous,

defendant's failure to identify the issues for mediation, unilateral scheduling of

mediation, and subsequent haste to file an enforcement motion that was

unsuccessful, supports a finding he did not act in good faith.

      Affirmed in part, and reversed and remanded in part. We do not retain

jurisdiction.




                                                                          A-4321-17T2
                                       19
