                                NOT FOR PUBLICATION WITHOUT THE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-5288-16T3

DONNALEE GILLEN,

          Plaintiff-Respondent,

v.

SHAHAB BINA,

     Defendant-Appellant.
_______________________________

                    Submitted October 31, 2018 – Decided November 27, 2018

                    Before Judges Alvarez and Mawla.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Monmouth County,
                    Docket No. FM-13-0321-99.

                    Paras, Apy & Reiss, PC, attorneys for appellant (Elissa
                    A. Perkins and Bonnie M.S. Reiss, of counsel and on
                    the briefs).

                    Law Office of Timothy F. McGoughran, LLC,
                    attorneys for respondent (Sarah Martynowski and
                    Timothy F. McGoughran, of counsel and on the brief).

PER CURIAM
      Defendant Shahab Bina appeals from a June 23, 2017 order granting in

part his motion to compel plaintiff Donnalee Gillen to contribute to their

children's college expenses. We affirm in part, and reverse and remand in part

for the motion judge to conduct a plenary hearing regarding college contribution

beginning from January 2015.

      The following facts are taken from the motion record. The parties were

married in January 1993. Two children were born from the marriage , who are

presently twenty-three and twenty-four years of age. A judgment of divorce was

entered on March 22, 1999, which incorporated a property settlement agreement

(PSA) signed beforehand. Pursuant to the PSA, the parties agreed to joint legal

custody of the children with plaintiff designated as the parent of primary

residence. The PSA also memorialized the parties' agreement requiring each to

contribute to the children's college expenses based on an ability to pay.

      Both parties graduated as doctors of chiropractic medicine from New York

Chiropractic College. Each is a licensed chiropractor in New Jersey. Plaintiff

was a practicing chiropractor from 1998 to 2000. She then began to work part-

time in other fields, including massage therapy. In 2000, defendant remarried

and moved to Villanova, Pennsylvania where he operates his own chiropractic

practice.


                                                                            A-5288-16T3
                                        2
      In 2001, plaintiff moved into a Wall Township home owned by her mother

because she could no longer afford to live in the former marital residence. The

children sought to live with defendant. On September 11, 2009, the court

entered an order temporarily transferring custody to defendant and scheduling a

plenary hearing on the modification of custody. As part of this post-judgment

proceeding, plaintiff's counsel prepared a proposed consent order, which was

signed by plaintiff and her attorney, but never signed by defendant, his counsel,

or entered by the court. However, on October 11, 2010, the court entered a

consent order memorializing the transfer of custody to defendant and

terminating his child support obligation.

      In 2011, the parties' older son began the college application process.

Plaintiff and defendant communicated regarding prospective schools, the pros

and cons of each, and the costs of attendance. The parties' son was accepted to

several schools, however, only New York University (NYU) was willing to

recruit him for its golf team. At a family meeting in April 2012, plaintiff

suggested the parties' son attend a college in New Jersey because she could not

afford the NYU tuition. Plaintiff also sent defendant an email on April 27, 2012,

expressing her disapproval because the parties' son would need to take loans to

meet the tuition. Plaintiff's email made clear she had not committed to pay any


                                                                         A-5288-16T3
                                       3
amount for college and had not agreed to either child attending an expensive

school. She also stated she would not incur more debt than she already had,

would not agree to debts incurred on behalf of the children for college in the

future, and did not agree the children should take on large amounts of debt to

obtain a college degree.

      Notwithstanding, the parties' older son commenced at NYU in Septemb er

2012. Defendant certified he and his wife unilaterally paid $67,760 for tuition,

room, and board. The older son was diagnosed with Lyme disease during the

fall semester of his sophomore year, which required him to take medical leave

for the remainder of the semester and return to live with defendant. Defendant

and his wife incurred a $27,515 loan to pay for the fall 2013 semester tuition.

The older son was also diagnosed with bio-toxin illness, manifesting as severe

reactions to mold exposure due to the existence of mold in defendant's home.

His illness required remediation of defendant's home. Defendant lacked the

funds to pay for the mold remediation. Therefore, he reduced his work hours

and performed the remediation himself.

      The older son's illnesses kept him out of school until the spring semester

of 2014. Instead of returning to NYU, defendant and his wife paid $34,900 in

tuition for the older son to attend a college-accredited experiential program. The


                                                                          A-5288-16T3
                                        4
parties' son eventually returned to college on a full-time basis during the spring

2016 semester, this time enrolling in Elon University. The record reflects

defendant and his wife paid $22,569, and also incurred parent loans totaling

$38,866, to fund three semesters of schooling at Elon. Defendant certified the

costs for the senior year at Elon would be $45,000.

      The parties' younger son decided to attend Wake Forest University

because he was offered a spot on its Division I golf team. He began at Wake

Forest in September 2013, but only spent three semesters there because his

grades did not meet the standards to remain in the golf program as a student -

athlete.   Defendant and his wife paid $29,920, and incurred loans totaling

$53,498, for three semesters of schooling at Wake Forest.

      The parties' younger son returned to live with defendant, and worked full-

time. He also enrolled in two classes costing $4400, which were paid for by

defendant and his wife. He then began attending Elon University in the 2015

fall semester.   The younger son spent four semesters at Elon, for which

defendant and his wife paid $49,366 and incurred loans totaling $38,866.

      As we noted, plaintiff had moved from the former marital residence for

financial reasons, and into a home owned by her mother. She certified her

chiropractic license lapsed in August 2009, because she could not afford the


                                                                          A-5288-16T3
                                        5
fees.    Plaintiff's mother, who resided in Beaver Falls, Pennsylvania, was

diagnosed with Alzheimer's in 2009, and colon cancer in 2011. During this time,

plaintiff regularly commuted from her home in Wall to care for her mother, who

eventually passed away in January 2016. In addition to caring for her mother,

plaintiff was diagnosed with bladder cancer in March 2015.

        Plaintiff certified she was unable to support herself during this period

because she was caring for her mother, and was dealing with her own illness.

However, plaintiff inherited her mother's home in Wall, and her 2017 case

information statement (CIS) noted she also received an inheritance totaling

$382,482.61 in September 2016.

        In January 2014, defendant's wife, who had been the primary breadwinner

for the family, experienced serious health problems. In March 2014, defendant

and his wife were in an automobile accident, which left him unable to work for

three months.     His 2014 tax return reflected total gross revenue from his

chiropractic practice of $28,153.

        Given the circumstances, on January 28, 2015, defendant sent plaintiff an

email asking her to contribute one-third of the children's future college expenses.

Defendant stated he and his wife would "absorb all of the money" they had spent

to date without seeking a contribution from plaintiff if she agreed to contribute


                                                                           A-5288-16T3
                                        6
to college moving forward. Plaintiff responded by stating: "I am in no position

to pay or take out loans." Defendant sent emails on March 11, March 26, and

April 29, 2015, seeking clarification of plaintiff's response, but she did not

respond.

      On July 29, 2015, defendant's counsel sent plaintiff a letter informing her

defendant could no longer afford to pay the children's college expenses and

seeking her contribution for the remaining semesters. The parties attended

mediation in June 2016, without success. As a result, on February 28, 2017,

defendant filed a motion to compel plaintiff's contribution to college.

      On June 23, 2017, the motion judge entered an order granting in part, and

denying in part, defendant's motion.         The judge ordered plaintiff to be

responsible for thirty-five percent of the older son's final year of school after he

applied for all existing loans, scholarships, and any available financial

assistance.   The judge denied defendant's request to compel plaintiff's

retroactive contribution to the children's education and defendant's request to

impute an income of $127,000 to plaintiff.

      Although the judge's decision began with an analysis of the factors in

Newburgh v. Arrigo, 88 N.J. 529 (1982), he stated "while the court reviewed

those factors, this case [fell] upon an agreement between the parties."


                                                                            A-5288-16T3
                                         7
Specifically, the judge found the unsigned consent order, dated January 5, 2010,

constituted a binding agreement between the parties because they had adhered

to its terms. Pursuant to the consent order, the judge concluded plaintiff was

not required to contribute to the children's college expenses which had been

incurred.   However, because the PSA contemplated both parties would

contribute to college, the judge reasoned plaintiff should be responsible for

thirty-five percent of the older son's final year of schooling because she had the

ability to pay from her inheritance. This appeal followed.

                                        I.

            "When reviewing a trial judge's order, we defer to
            factual findings 'supported by adequate, substantial,
            credible evidence.'" . . . However, reversal is warranted
            when the expressed factual findings are "so manifestly
            unsupported by or inconsistent with the competent,
            relevant and reasonably credible evidence as to offend
            the interests of justice." . . .

            Discretionary determinations, supported by the record,
            are examined to discern whether an abuse of reasoned
            discretion has occurred. . . .

            While an "abuse of discretion . . . defies precise
            definition," we will not reverse the decision absent a
            finding the judge's decision "rested on an impermissible
            basis," considered "irrelevant or inappropriate factors,"
            . . . "failed to consider controlling legal principles or
            made findings inconsistent with or unsupported by
            competent evidence." . . .


                                                                          A-5288-16T3
                                        8
             This court does not accord the same deference to a trial
             judge's legal determinations. . . . Rather, all legal issues
             are reviewed de novo.

             [Ricci v. Ricci, 448 N.J. Super. 546, 564-65 (App. Div.
             2017) (citations omitted).]

       On appeal, defendant argues the motion judge erred as follows: (1) relying

upon the unsigned draft consent order to find a contract in contravention of

N.J.R.E. 408; (2) failing to hold a plenary hearing, given the material disputes

in fact, before finding defendant had waived a contribution to college; (3) failing

to consider plaintiff's receipt of the inheritance and the downturn in his fortunes

constituted a changed circumstance requiring a re-evaluation of the college

contribution; (4) misapplying the Newburgh factors and failing to explain how

he determined plaintiff's thirty-five percent share of the college expenses; (5)

considering a memorandum of understanding from the parties' mediation in

violation of the mediation privilege; and (6) failing to impute an income to

plaintiff.

                                         II.

       We first address the motion judge's finding that the 2010 unsigned

proposed consent order was an enforceable agreement. As we noted, plaintiff's

counsel prepared a proposed consent order, which was signed by plaintiff and



                                                                            A-5288-16T3
                                          9
her counsel, but not signed by defendant, his counsel, or the court. The proposed

consent order addressed many issues, and, as to college, stated:

            [A]ll issues relative to the children's college education
            shall abide the event; except that [plaintiff] and
            [defendant] agree to cooperate in filling out and timely
            submitting any FAFSA federal or other financial aid
            forms to facilitate the college application and financial
            aid process. Such cooperation does not bind [plaintiff]
            to any specific financial contribution.            Should
            [defendant] elect to be responsible for all costs incident
            to the children's college education, then there shall be
            no requirement that he consult with [plaintiff] or that
            the parties reach mutual agreement on such issues.

      The motion judge concluded these terms were binding because the parties

had adhered to other aspects of the unsigned consent order. Specifically, he

found the parties had "followed the parenting time schedule, the transportation

arrangement, the provisions regarding the children's expenses, and [d]efen dant's

child support was terminated pursuant to the agreement." The judge also relied

on defendant's email to plaintiff, dated January 28, 2015, stating he and his wife

were "willing to absorb all of the money" they had spent to date, and the July

29, 2015 letter from defendant's counsel to plaintiff seeking her contribution for

the remaining semesters. The motion judge reasoned "the latter confirms the

former and both confirm the understanding [d]efendant would assume the costs

alone as outlined in the January 2010 proposed order."


                                                                          A-5288-16T3
                                       10
      We have long recognized the "basic contractual nature" of matrimonial

agreements. Harrington v. Harrington, 281 N.J. Super. 39, 46 (App. Div. 1995).

"[T]o be enforceable, matrimonial agreements . . . need not necessarily be

reduced to writing or placed on the record." Ibid. However, there must be an

agreement. Ibid. Although "not every factual dispute that arises in the context

of matrimonial proceedings triggers the need for a plenary hearing. . . . [W]e

have repeatedly emphasized that trial judges cannot resolve material factual

disputes upon conflicting affidavits and certifications."    Id. at 47 (internal

citation omitted).

      Here, the parties dispute whether they intended to be bound by the

unsigned consent order. However, we need not reach this issue or defendant's

arguments under N.J.R.E. 408, because we agree in part with the judge's

conclusions defendant had waived, to a limited extent, a contribution to the

expenses he had paid for the children's college education.

      Although the judge invoked principles of equity, such as laches and

equitable estoppel, the record readily demonstrates the applicability of the

related doctrine of waiver. The Supreme Court has stated:

            An effective waiver requires a party to have full
            knowledge of his legal rights and intent to surrender
            those rights. The intent to waive need not be stated
            expressly, provided the circumstances clearly show that

                                                                        A-5288-16T3
                                      11
      the party knew of the right and then abandoned it, either
      by design or indifference.

      [Knorr v. Smeal, 178 N.J. 169, 177 (2003) (citations
      omitted).]

Defendant's January 28, 2015 email to plaintiff, in pertinent part, stated:

      I am writing to [you] regarding your parental
      contribution to our sons['] education expenses.

      In the spring of 2012 you, [my wife], [your aunt] and I
      met with the boys to discuss funding for their college.
      In that meeting you said you were not in any position
      to pay for your share of college expenses. I asked you
      if you would pay for your share when you had better
      finances and [were] working and you said "yes, of
      course[."] I am assuming that your situation is very
      different today than [three] years ago and I am reaching
      out to you again to ask you to pay for your share of the
      boys['] college expenses.

            ....

      We are willing to absorb all of the money we have spent
      to date without asking you to repay us anything.

      Moving ahead, I am asking you to pay your share of
      college expenses for your sons. While you and I should
      be sharing these expenses [fifty-fifty], [my wife] has
      offered to pay [one-third], therefore, [my wife] and I
      will pay [two-thirds] and we are only asking you to help
      pay for the other [one-third]. I need to emphasize that
      it is very unusual for a step parent to have made
      personal sacrifices to provide such financial
      contributions and continue to be generous and offer to
      pay [one-third] of our sons['] educational expenses.


                                                                    A-5288-16T3
                                12
                    ....

              If you do not have access to the funds, the FAFSA form
              is easy to fill out online and your financial information
              will not be visible to us or anybody else for that matter.
              It is really our intent to do our best to resolve this in an
              amicable manner and I hope you feel the same.

Plaintiff responded to this email by stating: "I am in no position to pay or take

out loans."

      In a July 29, 2015 letter from defendant's counsel to plaintiff, counsel

stated:

                    As you know, to date your former husband . . .
              has paid all the college expenses for your sons[.] . . . As
              a result of medical issues which have severely affected
              his practice and his income, in addition to unexpected
              expenses for your sons, he is no longer able to absorb
              the college costs without assistance from you.
              According to the laws of our state both parents have an
              obligation to contribute to the college costs for their
              children.

                    If, going forward, you are prepared to share all
              costs of tuition, room, board, books, electronics, dorm
              set up, supplies and transportation to and from school
              equally, [defendant] will not seek any reimbursement
              for past expenses.

                     [Defendant] would like to resolve this issue
              expeditiously and without requiring that you disclose
              your assets and income or engage in costly
              litigation. . . .



                                                                             A-5288-16T3
                                         13
      Defendant's counsel also sent a letter to plaintiff on October 8, 2015,

which noted that: "By letter dated July 29, 2015 I contacted you and advised you

that, due to medical issues that have impacted his practice, [defendant] can no

longer shoulder all support and college expenses on his own. I note that there

is no order requiring him to do so." Defendant's counsel again sent a letter on

February 1, 2016, stating:

            As you may recall I forwarded letters to you on July 29
            and October 8 . . . urging you to either suggest or
            propose a mediator for the purpose of discussing the
            sharing of college expenses for [the children]. You did
            not respond to either of those letters.

            Out of consideration for you, [defendant] instructed me
            not to file a motion during your mother's illness.
            However, at this point he can wait no longer to resolve
            this matter . . . .

      Plaintiff replied to this letter on February 12, 2016, stating:

            I am in receipt of your letters of July 29, 2015, October
            8, 2015, and February 1, 2016. In your letter of July
            29, 2015 you . . . threaten that I must pay fifty percent
            of all costs of tuition, room, board, books, electronics,
            dorm set up, supplies and transportation to and from
            school or you will charge me past expenses and also
            have threatened to litigate. Is that true? If so, what is
            the purpose of mediation?

Defendant's counsel replied to plaintiff's letter on February 17, 2016, stating:

"Your reading of my letter as threatening is simply incorrect. [Defendant]


                                                                        A-5288-16T3
                                       14
sought mediation both because he wants to resolve the sharing of expenses fairly

and amicably and because you and [defendant] agreed to attempt mediation

before approaching the court."

      Given this context, we agree with the motion judge's reasoning defendant

did not seek a contribution to the funds expended for college prior to January

28, 2015. The emails defendant's counsel exchanged with plaintiff demonstrated

defendant was aware of his right to seek a contribution from plaintiff, but

"absorbed" the expense of college for the children and only pursued plaintiff's

contribution after he and his wife experienced an adverse change in

circumstances. For these reasons, we affirm the judge's finding defendant was

barred from seeking contribution to the college expenses he had paid as of

January 28, 2015.

                                      III.

      Defendant argues his change in circumstances warranted a review of the

college contribution, the motion judge misapplied the Newburgh factors and did

not explain how he determined plaintiff's thirty-five percent share of the

expense, and failed to impute an income to plaintiff. We agree.




                                                                        A-5288-16T3
                                      15
      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
             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.

      Here, the motion judge acknowledged there were changed circumstances

warranting a review of the parties' college obligation, namely, the downturn in

defendant's financial circumstances and plaintiff's receipt of an inheritance from

her mother. Defendant argues the judge misapplied Newburgh factors one, two,

five, seven, eleven, and twelve, although his brief does not address these factors

                                                                           A-5288-16T3
                                        16
with specificity. However, defendant specifically addresses the judge's findings

regarding plaintiff's ability to pay. Defendant also claims the judge ignored

plaintiff's "mortgage-free home, as well as the fact that she did not pay child

support, and that she lived rent-free for fifteen years[,]" and asserts it was error

for the judge to conclude plaintiff was excluded from the college selection

process pursuant to Gac v. Gac, 186 N.J. 535 (2006).

      Child support is a right belonging to the child, which cannot be waived.

See Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993).

Regardless, we do not reach the claim relating to plaintiff's non-payment of child

support because defendant did not seek it in the intervening years when the

children moved into his home, and we can discern no concomitant savings on

the part of plaintiff as a result of having no child support obligation.

      Newburgh factor eleven requires the trial court to assess "the child's

relationship to the paying parent, including mutual affection and shared goals as

well as responsiveness to parental advice and guidance." 88 N.J. at 545. In Gac,

the Supreme Court addressed the issue of whether a parent who had been

estranged by a child and the custodial parent should be required to contribute to

the child's college obligation and declined to compel the non-custodial parent's

contribution to college under such circumstances. 186 N.J. at 548.


                                                                            A-5288-16T3
                                        17
      Here the motion judge made two seemingly conflicting findings on the

issue of the parent-child relationship for college contribution purposes.

Addressing Newburgh factor eleven, the judge stated: "There is no indication

[p]laintiff does not have a relationship with the children or they have rebuked

her advice and guidance." However, later in the judge's opinion, he concluded

             [p]laintiff had no input of influence on the children's
             choice of higher education and any comment she made
             was brushed aside. There is also no evidence she was
             involved in the college selection process for the
             younger child from the start of his college inquiry in the
             [f]all of 2012.

      Notwithstanding these findings, the motion judge compelled a

contribution from plaintiff. Because we have affirmed the judge's decision that

defendant was barred from seeking a contribution to the college expense prior

to January 28, 2015, the judge's findings as they relate to Gac need not be

revisited.   However, the parties have a material dispute regarding whether

plaintiff was excluded from the college selection process. Therefore, on remand,

and following a plenary hearing, the judge should clarify his findings regarding

factor eleven and explain how they impact plaintiff's obligation to contribute to

the college expense.




                                                                          A-5288-16T3
                                        18
      Defendant argues the motion judge erred when he did not impute an

income to plaintiff based on her professional training and education. On this

issue, the motion judge reasoned as follows:

            Plaintiff argues she does not have the ability to pay for
            the children's college expenses. She certifies she has
            no current income in her [CIS]. Plaintiff was a
            registered chiropractor at one point but certifies she did
            not renew her license since 2009. The New Jersey
            Bureau of Labor indicates an average salary of
            $123,000 for licensed chiropractors. She attended
            nursing school but certifies she did not take her
            NCLEX.1 The New Jersey Bureau of Labor indicates
            an average salary of $80,000 for registered nurses.
            Plaintiff does not practice in either field [d]efendant
            references. Further she has put forth good reason for
            her inability to obtain employment in those positions
            and an extensive absence from such professions. It is
            unreasonable to expect, or impose, an average earning
            capacity in a particular profession upon someone who
            could only begin working in that profession comparable
            to an entry level professional.

            Plaintiff has maintained she does not have the financial
            ability to contribute towards the children's college
            expenses, and certifies she made [d]efendant aware of
            that on numerous occasions. However, the court will
            note that even assuming [p]laintiff earned those
            amounts, the request for approximately $200,000 is
            excessive and well beyond the ability of a person
            earning those amounts to pay.



1
  The National Council Licensure Examination is a nationwide examination for
the licensing of nurses.
                                                                         A-5288-16T3
                                       19
            Defendant argues [p]laintiff should be imputed a
            particular income in determining her ability to pay.
            Defendant cites various case law that supports the
            imputation of income for determination of child
            support. However, even assuming plaintiff had the
            ability to earn the income [d]efendant argues should be
            imputed to her, there is an inherent difference between
            child support and college contributions. The former is
            controlled by a parents earning capacity, but the latter
            is controlled by the parent's actual ability at the time of
            the requested payment. While financial support of a
            child is a parental obligation, contribution toward
            college costs is not; hence the different legal standards
            and analysis applied by the court. Every child has the
            right to a basic financial support from both parents, but
            there is no right to a college education funded by a
            parent. Thus, a parent can only be forced to pay that
            which they are capable and the court is not controlled
            by theoretical abilities.

      We disagree with the judge's conclusion that considerations regarding a

parent's ability to pay child support and college are dissimilar. "'Imputation of

income is a discretionary matter not capable of precise or exact determination[,]

but rather requir[es] a trial judge to realistically appraise capacity to earn and

job availability.'" Elrom v. Elrom, 439 N.J. Super. 424, 434 (App. Div. 2015)

(citations omitted). In Elrom, we noted the authority to impute income

            is incorporated in the New Jersey Child Support
            Guidelines (Guidelines).     See R. 5:6A (adopting
            Guidelines set forth in Appendix IX-A to the Court
            Rules). The Guidelines state:



                                                                          A-5288-16T3
                                       20
     [i]f the court finds that either parent is, without just
     cause, voluntarily underemployed or unemployed, it
     shall impute income to that parent according to the
     following priorities:

           a. impute income based on potential
           employment and earning capacity using the
           parent's work history, occupational
           qualifications, educational background,
           and prevailing job opportunities in the
           region. The court may impute income
           based on the parent's former income at that
           person's usual or former occupation or the
           average earnings for that occupation as
           reported by the New Jersey Department of
           Labor (NJDOL);

           b. if potential earnings cannot be
           determined, impute income based on the
           parent's most recent wage or benefit record
           ....

     [Elrom, 439 N.J. Super. at 435 (alteration in original)
     (quoting Child Support Guidelines, Pressler &
     Verniero, Current N.J. Court Rules, comment 12 on
     Appendix IX-A to R. 5:6A at 2635 (2015)).]

Additionally:

     In determining whether income should be imputed to a
     parent and the amount of such income, the court should
     consider: (1) what the employment status and earning
     capacity of that parent would have been if the family
     had remained intact or would have formed, (2) the
     reason and intent for the voluntary underemployment
     or unemployment, (3) the availability of other assets
     that may be used to pay support, and (4) the ages of any
     children in the parent's household and child-care

                                                                A-5288-16T3
                               21
            alternatives. . . . When imputing income to a parent who
            is caring for young children, the parent's income share
            of child-care costs necessary to allow that person to
            work outside the home shall be deducted from the
            imputed income.

            [Id. at 439 (quoting Child Support Guidelines Pressler
            & Verniero, Current N.J. Court Rules, comment 12 on
            Appendix IX-A to R. 5:6A at 2635).]

Notably, we applied the imputation rubric to disputes unrelated to child support

when we stated: "These legal precepts equally apply when establishing a party's

obligation to pay alimony." Id. at 435-36.

      We have previously noted "there is a close relationship between college

cost and support[.]" Jacoby v. Jacoby, 427 N.J. Super. 109, 122 (App. Div.

2012). Indeed, "'[r]esolution of [the right to continued educational support]

centers on a parent's duty to support a child until the child is emancip ated.

Consequently, [the child], if unemancipated, may be entitled' to continued

support."   Ricci, 448 N.J. Super. at 580 (alteration in original) (quoting

Newburgh, 88 N.J. at 542).

      Therefore, although the motion judge was ultimately free to reject

$200,000, and instead impute no income to plaintiff, he should have employed

the guideline factors when he considered defendant's imputation request.

Furthermore, by conducting a plenary hearing on this disputed issue, the motion


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judge would have testimony to enable him to follow the guideline factors, and

would have explained: whether plaintiff was voluntarily unemployed; her

earnings history; the entry level earnings for plaintiff in the nursing or

chiropractic fields, and if plaintiff could achieve those earnings. For these

reasons, we remand the determination for further findings on the imputation

issue.

         Most importantly, although the judge addressed the Newburgh factors, we

have no means of understanding how he arrived at a thirty-five percent

contribution for plaintiff's share of the college expense. The judge's findings

lack an assessment of the parties' income, needs, and expenses to enable us to

gauge whether the percentage contribution ordered by the judge was supported

by adequate credible evidence of an ability to fund the college expenses through

the use of income, assets, credit, or a combination of resources.

         The judge's assessment of Newburgh factor six, the financial resources of

both parents, was as follows:

               Defendant claims to have no income pursuant to his
               [CIS], [p]laintiff provided same and her resources are
               further outlined in [p]aragraph [four]2 above. Although
               [d]efendant claims no income of note, his [CIS]
               identified monthly expenses of almost $35,000. In light

2
   Although the judge stated he was referencing Newburgh factor three, we
believe he intended factor four, which addresses the parents' ability to pay.
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            of his nominal income, extensive monthly expenses and
            lack of significant assets, he must be supported by his
            now wife. Although she has no financial obligation to
            the children, the court may consider the extent of his
            income or resources that become available—or are
            "freed up"—due to the support he obtains from his wife.

The judge's findings accept the validity of defendant's expenses without a

critical analysis or explanation of how defendant could justify such expenses ,

given the overall financial downturn experienced by defendant and his wife. The

findings also lack a description of plaintiff's expenses, defendant's earning

capacity, and what income or resources could be "freed up" to fund college.

      Although we appreciate the judge's effort to address the Newburgh factors

without a hearing, many of these questions as well as the judge's ability to arrive

at a record-based percentage for each parent, required one.                Indeed,

"[m]eaningful appellate review is inhibited unless the judge sets forth the

reasons for his or her opinion. In the absence of reasons, [the court is] left to

conjecture as to what the judge may have had in mind." Salch v. Salch, 240 N.J.

Super. 441, 443 (App. Div. 1990).

      Furthermore, because our decision has expanded the time period of

college expenses for which plaintiff may be held responsible, this may operate

to substantially decrease the percentage of plaintiff's contribution depending on

her ability to pay and overall financial capabilities, despite defendant's claims

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                                       24
relating to plaintiff's rent/mortgage-free living circumstances and inheritance.

For these reasons, we reverse and remand for a plenary hearing pursuant to

Newburgh to determine whether, and to what extent, plaintiff shall be required

to contribute to the children's college expenses as of January 28, 2015.

                                        IV.

      Finally, we reject defendant's argument the motion judge's discussion of

a confidential memorandum of understanding resulting from the parties' failed

mediation constituted reversible error. As we noted, the parties engaged in

mediation before the motion practice, which generated an unsigned draft

memorandum of understanding prepared by the mediator. In the part of the

motion judge's opinion addressing the parties' contentions, the judge noted

plaintiff had submitted "a [m]emorandum . . . as part of a mediation that states

[p]laintiff does not have an obligation towards the children's past college-related

expenses in light of her financial situation at the time."

      The Supreme Court has stated: "Communications made during the course

of a mediation are generally privileged and therefore inadmissible in another

proceeding." Willingboro Mall, Ltd. v. 240/242 Franklin Ave., L.L.C., 215 N.J.

242, 245 (2013). A mediation communication is defined as any "statement,

whether verbal or nonverbal or in a record, that occurs during a mediation or is


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                                        25
made for purposes of considering, conducting, participating in, initiating,

continuing, or reconvening a mediation or retaining a mediator." Id. at 255

(quoting N.J.S.A. 2A:23C-2). The privilege does not apply where there is a

signed settlement agreement or where there is an express waiver of the privilege

by the mediator and the parties. Id. at 257-58.

      Generally, reversible error must be clearly capable of producing an unjust

result. State v. Castagna, 187 N.J. 293, 312 (2006) (internal citations and

quotations omitted). 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, it was improper for plaintiff to submit the unsigned memorandum

as a part of the motion pleadings. However, it was not reversible error for the

motion judge to reference the document, where he merely noted plaintiff's claim

and did not rely on the document to render his decision. Therefore, the error

was harmless.

      Affirmed in part, and reversed and remanded in part for further

proceedings in accordance with this opinion. We do not retain jurisdiction.




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