                                NOT FOR PUBLICATION WITHOUT THE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-4687-16T3

KIMBERLY ROBINSON,

          Plaintiff-Respondent/
          Cross-Appellant,

v.

ARMANDO ONORATI,

     Defendant-Appellant/
     Cross-Respondent.
____________________________

                    Argued February 4, 2019 – Decided March 14, 2019

                    Before Judges Messano and Gooden Brown.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Mercer County,
                    Docket No. FM-11-0489-03.

                    Michael H. Nieschmidt argued                              the      cause       for
                    appellant/cross-respondent.

                    Jennifer D. Zoschak argued the cause for
                    respondent/cross-appellant (Oswald & Zoschak, PC,
                    attorneys; Jennifer D. Zoschak, on the brief).

PER CURIAM
      In this post-judgment matrimonial matter, defendant (ex-husband) appeals

from the May 26, 2017 Family Part order, emancipating the parties' son , born

January 1995; recalculating child support and ordering college contributions for

the parties' unemancipated daughter, born October 1999; and denying him

counsel fees. Defendant argues the motion judge erred in emancipating their

son at the end of his first college semester, rather than when he graduated from

high school; finding his request to compel production of their son's college

transcripts moot; recalculating child support based upon an erroneous

emancipation date and plaintiff's (ex-wife) underemployed income; ordering

college contributions for their daughter without considering the factors

enumerated in Newburgh v. Arrigo, 88 N.J. 529 (1982); and failing to analyze

the requisite factors in denying him counsel fees. For the reasons that follow,

we affirm in part, reverse in part, and remand for further proceedings.1



1
     Although plaintiff cross-appealed from the provisions of the order
emancipating the parties' son effective December 11, 2013, denying her request
for contribution to his college expenses, and denying her request for fees and
costs, she did not brief those issues in her merits brief. "[A]n issue not briefed
is deemed waived." Pressler & Verneiro, Current N.J. Court Rules, cmt. 5 on
R. 2:6-2 (2019). See also Telebright Corp. v. Dir., Div. of Taxation, 424 N.J.
Super. 384, 393 (App. Div. 2012) (deeming a contention waived when the party
failed to include any arguments supporting the contention in its brief).
Accordingly, plaintiff's "cross-appeal must be considered abandoned."
Zavodnick v. Leven, 340 N.J. Super. 94, 103 (App. Div. 2001).
                                                                           A-4687-16T3
                                        2
      The parties married in 1997 and divorced in 2003. Under the parties'

property settlement agreement (PSA), which was incorporated into their June

25, 2003 final judgment of divorce (FJOD), the parties had "joint custody" of

the children, with plaintiff designated "the parent of primary residence."

Pursuant to the PSA, defendant was required to pay child support of $137 per

week, "in accordance with the New Jersey Child Support Guidelines"

(Guidelines). The child support payment was calculated with plaintiff and

defendant "having gross taxable income" of "$680[]" and "$671[] per week[,]"

respectively. Further, under the PSA, child support "payments shall continue

until the children are emancipated in accordance with the decisional law of the

State of New Jersey."

      Regarding college contributions, the PSA specified:

            [N]o consideration [was] given in this [PSA] with
            respect to the college education expenses of the[]
            children or the direct support, if any, to be paid on
            behalf of said child in the event that a child pursues a
            post high school education. That issue [was] expressly
            reserved for future determination and if the parties
            [were] not able to reach agreement, then in that event,
            they may apply to the [c]ourt for a judicial
            determination as to their respective responsibilities.

      On April 4, 2017, defendant moved to compel plaintiff to provide him

with copies of their son's college transcripts; emancipate their son effective


                                                                       A-4687-16T3
                                       3
December 11, 2013, the last date he was believed to have attended college as a

full-time student; recalculate child support for their daughter, effective

December 11, 2013; credit defendant for all child support overpayments; and

award defendant counsel fees. Defendant supplied the court with financial

documents from 2013 to 2016, as well as a current Case Information Statement

(CIS), as required by Rule 5:5-4(a).

      Regarding emancipation, in his supporting certification, defendant

asserted that their son, A.O., "graduated from high school in June 2013," and

"began attending Mercer County Community College [(Mercer County),]" a

"[two-year] institution," in the Fall 2013 semester. According to defendant, both

A.O., with whom he had a "strained" relationship, and plaintiff advised him that

A.O. "was attending college full[-]time" and "was doing well with his studies[,]"

leading defendant to believe A.O. would graduate in May 2015. However, when

"[p]laintiff informed [him] that [A.O.] would be continuing his studies at

[Mercer County] in the Fall [2015] [s]emester," he requested from both of them,

"copies of . . . grade reports and transcripts from [Mercer County]" to resolve

the inconsistency.

      According to defendant, despite his repeated requests, "[a]t no time" was

he "ever provided" with A.O.'s "transcripts," or "grade reports," from Mercer


                                                                         A-4687-16T3
                                       4
County.    Instead, he was only given "registration print[-]outs" for certain

semesters. Defendant asserted that a review of those "registration print[-]outs"

showed that "at most," A.O. only "attended [Mercer County] full[-]time . . . in

the Fall [2013] [s]emester, which ended on December 11, 2013." Additionally,

according to defendant, while attending college, A.O. "worked on average five

. . . days per week at two . . . different positions[,]" as a "[l]ot [a]ttendant" for a

"new car dealer" and a "[d]ishwasher and [d]river for a local pizzeria[.]"

      Regarding the recalculation of child support, defendant certified that since

the divorce, both parties remarried and, pursuant to a "[c]onsent [o]rder of

January 7, 2010," the court increased his child support obligation from the PSA

amount to $200 weekly "based on [the parties'] agreed upon [weekly] income"

of "$867" for plaintiff and "[$1121]" for defendant. Thereafter, following the

birth of a child with his new wife in March 2010, on September 27, 2010, "the

[c]ourt granted [his unopposed] application" to reduce "[his] [c]hild [s]upport

obligation [to] $162 per week," using the same income figures specified "in the

January 7, 2010 [c]onsent [o]rder . . . , but also factoring in the income of [his]

current spouse" and "day care" expenses. Defendant acknowledged that he was

unaware of plaintiff's current earnings but believed "she continue[d] to work in

the exact same type of dental assistant/hygienist position in which she has


                                                                               A-4687-16T3
                                          5
historically worked[,]" and "assume[d]" that "commensurate with inflation," her

weekly "earnings have increased" from the $867 she "agreed" to in the January

7, 2010 consent order.

      Finally, defendant asserted that "[p]laintiff's refusal to provide [him] with

[A.O.'s] academic records . . . [violated] the provisions of the [PSA,]" requiring

both parties "from time to time, at the request of the other[,] . . . [to] deliver[] to

the other party any and all further instruments that [may] be responsibly required

to give full force and effect to the provisions of [the PSA]." Accordingly,

defendant sought counsel fees based on plaintiff's "bad faith" and "lack[]" of

"integrity."

      Plaintiff opposed the motion and cross-moved to recalculate child support,

require the parties to contribute to the college expenses of both children in

proportion to their respective income, and award her counsel fees. Regarding

emancipation, in her reply certification, plaintiff averred that in the Fall 2013

semester, A.O. "signed up [at Mercer County] for thirteen . . . credits," but failed

one class and "earned ten . . . credits" for that semester. However, "[o]ver the

last three . . . years," A.O. "continued to take classes and [was] due to graduate

with an Associate[] in Science Degree" after completing the Summer 2017

semester. Thereafter, A.O. "plan[ned] to attend [Rowan University] beginning


                                                                               A-4687-16T3
                                          6
Fall 2017."   Plaintiff acknowledged that despite receiving assistance with

expenses from her and her new husband, A.O. "has worked part-time jobs in

order to pay for his education" and "[i]n 2014," had "to work more hours" and

"take fewer classes."     However, she denied "'represent[ing]' anything to

[d]efendant about [A.O.'s] grades[,]" and explained that "[l]ike many students,"

A.O. "withdrew from classes" that "he felt . . . were too difficult," and "'tested

the waters,' taking classes he thought might be of interest." Attached to her

certification, plaintiff submitted a computer print-out of A.O.'s Mercer County

transcript and grades, showing he earned fifty-seven of the seventy-six credits

needed to graduate, as well as Mercer County registration statements ranging

from the Fall 2013 semester to the Summer 2017 semester.

      Regarding college contributions, plaintiff sought an order requiring both

parents to contribute to both A.O.'s college expenses as well as their daughter's,

G.O., who was still in high school but "[would] be attending college in another

year[.]" Plaintiff asserted she did "not want to have to file a motion and spend

money . . . just to answer the question of whether or not [d]efendant will

contribute." Regarding the recalculation of child support, plaintiff certified she

also had another child with her new spouse and was entitled to the other

dependent deduction. Plaintiff averred she worked as "a dental assistant" with


                                                                          A-4687-16T3
                                        7
gross weekly earnings of $633, as evidenced by her 2016 tax return attached to

her CIS. Factoring in her new husband's earnings, plaintiff believed child

support for A.O. and G.O. should be $197 weekly, and $172 for G.O. alone if

A.O. was emancipated. As to counsel fees, plaintiff denied she "refused to

cooperate in the past" or "acted in bad faith," and explained that "[defendant]

never approached [her] to discuss [their] son's status, and . . . never discussed it

with [their] son directly."    Thus, given "the disparity in [their] incomes,"

plaintiff sought an award of "counsel fees."

      In a reply certification, defendant countered that based on the Mercer

County records submitted by plaintiff, "[A.O.] has been attending Mercer

County . . . for four . . . years[,]" but "[o]ut of eight . . . semesters," he was "a

part-time student for six" and "a full[-]time student" for "only . . . the two . . .

most recent semesters." Accordingly, defendant urged the court "to emancipate

[A.O.], effective his high school graduation day [in] June 2013," rather than

December 2013 as he had originally requested.

      Regarding contributing to G.O.'s college expenses, defendant asserted he

had no objection to "paying whatever the [c]ourt determine[d]." However,

defendant noted he had been "left out" of any "discussion" regarding G.O.'s

college attendance "[]just like with [A.O.]" Additionally, defendant noted that


                                                                             A-4687-16T3
                                         8
"[p]laintiff's household income" and "household balance sheet" were "far, far

superior to" defendant's, and, when they divorced, neither party had "an

expectation" that their "children would attend college," as both parties "only

attended trade-schools, earning two . . . year degrees."

      As to the recalculation of child support, defendant disputed plaintiff's

claim that her gross weekly income was $633. According to defendant, "back

in January 2010," plaintiff "agreed" to be imputed $867 as weekly gross income

because she "acknowledged . . . that she was underemployed."          Defendant

asserted that currently, "[p]laintiff's full[-]time earnings should . . . be $960

weekly" because "a review of [her] pay stubs provided with her [CIS] reveal[ed]

that [she was] only working around twenty[-]six . . . hours per week at $24 per

hour[,]" indicating that she was still voluntarily underemployed.

      Following oral argument, on May 26, 2017, in an oral opinion from the

bench, the judge granted in part, and denied in part, defendant's motion. As to

emancipation, "given [A.O.'s] age, [and] the sporadic and pervasively part[-

]time attendance at post[-]secondary education," the judge emancipated A.O.,

effective December 11, 2013, the first date he failed to maintain a full-time

credit load at Mercer County. The judge credited A.O.'s perseverance but could

not "find that his lengthy and part[-]time participation in post[-]secondary


                                                                         A-4687-16T3
                                        9
education suffice[d] to defeat defendant's application for emancipation." In that

regard, the judge rejected plaintiff's argument that A.O. remained within the

sphere of influence and "took a light course load because of his need to work

two part[-]time jobs." The judge determined that defendant did not "contribute

to [A.O.'s] need to work" because defendant was up-to-date in his child support

payments and had "no recent history of non-payment." See Filippone v. Lee,

304 N.J. Super. 301, 308 (App. Div. 1997) ("essential [to the emancipation]

inquiry is whether the child has moved 'beyond the sphere of influence and

responsibility exercised by a parent and obtains an independent status of his or

her own'" (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995))).

      In light of his decision, the judge denied as "moot" defendant's request for

all of A.O.'s college transcripts because plaintiff provided them with her

"opposition" and "cross-motion," and "the [c]ourt's disposition of . . . defendant's

claims for relief eliminate[d] defendant's ongoing need for those . . . transcripts."

The judge acknowledged that the transcripts were not "official," but noted "there

was no real question as to [their] authenticity or completeness."

      Likewise, the judge "denie[d] defendant's application for a retroactive

modification of . . . child support back to [2013]." Instead, the judge ordered

"the recalculation of child support" to "be effective April 4[], 2017, the filing


                                                                             A-4687-16T3
                                        10
date of defendant's application[,]" obviating the need for any overpayment

credit.    The judge acknowledged that "[a]lthough the retroactivity statute,

specifically N.J.S.A. 2A:17-56.23[a,] does not prohibit the retroactive

diminution of child support in instances of emancipation, the statute does not

require it, nor does it strip the Family Part judges of their discretion to fashion

court orders that would avoid injustice."

      Observing that "a retroactive disgorgement of child support" from

plaintiff would "be substantial[,]" and child support payments were "used for

the benefit of the children" the judge concluded that "it would be an unnecessary

hardship" and "an injustice upon [plaintiff] . . . to [so] order." The judge

explained "plaintiff has supported the children, including [A.O.], by way of

continuing to provide them housing, providing tuition assistance , and other

forms of support. To retroactively require disgorgement would be unjust and

unfair."

      Turning to plaintiff's cross-motion, the judge granted her application to

recalculate child support "to provide both parties with appropriate credit for the

other dependent deduction[,]" given that "[b]oth parties now have . . . new

family members for whom they are responsible." However, the judge's order

recalculating defendant's child support obligation to $172 weekly was based


                                                                           A-4687-16T3
                                       11
upon plaintiff's gross weekly income of $633, which defendant had vehemently

disputed.   As to plaintiff's application for college contributions, the judge

determined that "[b]y consent of the parties, both parents shall contribute to the

college expenses of [G.O.,]" who was then "a junior" in high school, and planned

"to attend college" after graduation.

      The judge continued:

                   Plaintiff also seeks an order that the parties are
            responsible proportionate to their income. Defendant
            objects[,] arguing that [it is] too speculative at this point
            and that that determination should not be made until
            such time as more particulars are known with respect to
            tuition and the other factors elucidated in Newburgh
            ....

                   The [c]ourt understands defendant's argument,
            however, every dollar spent on counsel fees to litigate
            questions of college contribution is one dollar less spent
            on the post[-]secondary education of the parties[']
            child. So without prejudice to a future determination of
            the parties['] respective contributions, by way either of
            mutual agreement between the two of them or future
            order of this court, the parties shall contribute to
            [G.O.'s] college expenses in proportion to their income
            as calculated by the [Guidelines], specifically [thirty-
            five] percent plaintiff, [sixty-five] percent defendant.

      Finally, the judge denied both parties' requests for counsel fees ,

"determin[ing] that both parties shall be responsible for their own legal fees."

The judge explained:


                                                                            A-4687-16T3
                                        12
            [B]oth parties on the different issues that they raise in
            their respective applications, raise positions that were
            reasonable, they had a fair degree of success on both
            parties['] applications and, likewise, the [c]ourt finds
            that based upon the ability to pay, that both parties have
            the ability to pay their own counsel fees and costs.

The judge entered a memorializing order and this appeal followed.

      The scope of our review of a Family Part order is limited. Cesare v.

Cesare, 154 N.J. 394, 411 (1998). We generally defer to the Family Part's fact-

finding because of the court's "special expertise" in family matters and ability

to make credibility determinations. N.J. Div. of Youth & Family Servs. v. F.M.,

211 N.J. 420, 448 (2012). We defer to a judge's findings of fact unless they lack

support in the record or are inconsistent with the substantial, credible evidence.

Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 483-84 (1974). We

likewise defer to the Family Part on decisions that are committed to the trial

court's exercise of discretion. Milne v. Goldenberg, 428 N.J. Super. 184, 197

(App. Div. 2012).     However, we owe no special deference to the court's

"interpretation of the law and the legal consequences that flow from established

facts." Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378

(1995). Also, if the "court ignores applicable standards, we are compelled to

reverse and remand for further proceedings." Gotlib v. Gotlib, 399 N.J. Super.

295, 309 (App. Div. 2008).

                                                                          A-4687-16T3
                                       13
      On the issue of emancipation, we have said that "[n]o specific age equates

to emancipation of a child[,]" and attainment of the age of eighteen is only prima

facie "and not conclusive proof" of emancipation. Patetta v. Patetta, 358 N.J.

Super. 90, 93 (App. Div. 2003). The child's needs are determinative, and

"enrollment in a full-time educational program" may compel continued support.

Id. at 94. While the fact that a child may "take a brief hiatus from educational

pursuits," does not, in and of itself, demonstrate the child has "moved beyond

the sphere of influence of [his] parents[,]" Keegan v. Keegan, 326 N.J. Super.

289, 295 (App. Div. 1999), a child's lack of commitment to his education, or the

unexcused failure to remain a diligent, full-time student may be a basis for

emancipation because our law does not require "support and concomitant

deferred emancipation for a child unable to perform adequately in his academic

program." Filippone, 304 N.J. Super. at 311-12.

      Here, we discern no abuse of discretion in the judge's decision to

emancipate A.O. effective December 11, 2013, the first date he failed to

maintain a full-time college credit load, rather than after he graduated from high

school as urged by defendant. Likewise, we agree that defendant's continued

request for A.O.'s official Mercer County transcripts was rendered moot by the

judge's decision. An issue is considered moot when the "decision sought in a


                                                                          A-4687-16T3
                                       14
matter, when rendered, can have no practical effect on the existing controversy."

Redd v. Bowman, 223 N.J. 87, 104 (2015) (quoting Deutsche Bank Nat'l Trust

Co. v. Mitchell, 422 N.J. Super. 214, 221-22 (App. Div. 2011)).

         As to the judge's decision to recalculate child support retroactive to the

date defendant filed his motion, rather than the emancipation date, New Jersey's

anti-retroactivity statute generally prohibits retroactive modification of an

existing child support order to a date prior to the filing date of a motion for such

relief, or forty-five days earlier upon written notice. N.J.S.A. 2A:17-56.23a.

However, we have previously held that the anti-retroactivity statute does not

prevent a retroactive termination of child support when a child is retroactively

emancipated. See Bowens v. Bowens, 286 N.J. Super. 70, 73 (App. Div. 1995)

(permitting retroactive emancipation and termination of child support where an

obligor sought a retroactive cancellation of unpaid arrearages following the date

of emancipation); see also Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App.

Div. 1995) (emancipating and terminating child support for two children two

years apart in age, with each emancipation effective retroactive to each child's

eighteenth birthday, and holding "[w]here there is no longer a duty of support

by virtue of a judicial declaration of emancipation, no child support can become

due").


                                                                            A-4687-16T3
                                         15
      Factors to consider to accomplish "mutual fairness and equity" when a

party seeks modification of a previously paid child support obligation prior to

the motion filing date were thoroughly discussed in Harrington v. Harrington,

446 N.J. Super. 399, 411 (Ch. Div. 2016).         There, the court identified a

comprehensive list of considerations relevant to a court's analysis of "the

comparative equities of whether to retroactively modify child support." Id. at

411-12.

      Those considerations include the length of time and reasons for the

obligor's delay in filing the motion; whether "the non-custodial parent

continue[d] to pay the same level of child support to the obligee" even after he

could have filed the motion; "any fraud or misrepresentation" by the custodial

parent or the child that caused the obligor's delay in filing the motion; whether

the "custodial parent failed to communicate facts that would have led to

emancipation" at an earlier date and whether the non-custodial parent could

"have nonetheless otherwise easily obtained such information with a reasonable

degree of parental diligence and inquiry"; whether the "proposed retroactive

modification of child support" would be "unduly cumbersome and complicated"

to accurately calculate; whether the non-custodial parent seeks "only a credit,"

rather than "an actual return of child support already paid to, and used by, the


                                                                         A-4687-16T3
                                      16
custodial parent toward the financial expenses of the child living in the custodial

parent's home"; the potential of causing "an inequitable financial hardship" if

the "custodial parent who previously received [the] funds in good faith" were

required to repay the funds; and "any other factors the court deems relevant to

the analysis[.]" Id. at 407-09.

      Here, we discern no abuse of discretion in the judge's determination that

because the overpayment would be substantial and plaintiff used the child

support payments for the benefit of A.O., a retroactive disgorgement by plaintiff

would create an unnecessary financial hardship that would be "unjust and

unfair." Given the judge's keen awareness of plaintiff's financial circumstances,

we see no reason to interfere with his imposition of an equitable remedy.

      Turning to defendant's contention that the judge erred in recalculating the

child support payment based on plaintiff's "underemployed" income, in

calculating child support, the court is obliged to consider the "potential earning

capacity of an individual, not his or her actual income[.]" Caplan v. Caplan, 182

N.J. 250, 268 (2005) (quoting Halliwell v. Halliwell, 326 N.J. Super. 442, 448

(App. Div. 1999)).        When a parent is "voluntarily unemployed or

underemployed" "without just cause," income should be imputed to "promot[e]

a fair and just allocation of the support obligation" of both parents, id. at 268-


                                                                           A-4687-16T3
                                       17
69, and when a party appeals a decision to impute or not impute income, we will

only disturb the result if "the underlying findings are inconsistent with or

unsupported by competent evidence." Storey v. Storey, 373 N.J. Super. 464,

474-75 (App. Div. 2004).

      Here, defendant contends the judge erred by failing to, at the very least,

impute to plaintiff the $867 weekly income she agreed to in the January 7, 2010

consent order that was reaffirmed in the September 27, 2010 court order, and

instead accepting plaintiff's claim that her weekly income was $633. During

oral argument, when the judge queried plaintiff's attorney on defendant's claim

that she was "deflating [her] client's income[,]" plaintiff's attorney responded:

            My client is working [twenty-six] hours a week. She
            works part[-]time, everybody in her office works part[-
            ]time. There is no full[-]time employment available
            . . . . [W]hen you work full[-]time and [you are] being
            provided with benefits, [you are] not getting $24 an
            hour, [you are] going to be earning significantly less
            per hour. So [it is] going to even up as it is.

       Without hearing any testimony, the judge accepted plaintiff's claim and

her attorney's representation that her weekly income was $633, despite

defendant's contrary claim and clear evidence in the record of a higher income

attributed to her in the past. We thus conclude the judge's decision was not

supported by competent evidence. That reason, standing alone, is a sufficient


                                                                           A-4687-16T3
                                       18
basis for reversing the child support order and remanding for a hearing on

plaintiff's earning potential and a determination of whether imputing income to

her is justified. Where "no hearing takes place, no evidence is admitted, and no

findings of fact are made," we owe no deference to the trial court's conclusions.

N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009).

       Next, we consider defendant's argument that the judge erred in ordering

college contributions for G.O. without considering the Newburgh factors.2


2
    The Newburgh factors for determining parents' college contributions include:

             (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


                                                                           A-4687-16T3
                                        19
While the Family Part has "substantial discretion" in determining the parents'

obligation to pay a child's college expenses, if the court fails to consider and

apply the Newburgh factors, "we are compelled to reverse and remand for

further proceedings." Gotlib, 399 N.J. Super. at 308-09. In Gotlib, the trial

court failed to apply the Newburgh factors and instead ordered each parent to

pay half the college expenses, although the parties had not agreed to that

arrangement. We noted:

            The JOD is silent as to how the parties would divide
            higher education expenses; the provision merely stated
            that "[b]oth parties shall contribute to the college costs
            of the children in accordance with appropriate legal
            standards." In arriving at his decision, the motion judge
            did not address the Newburgh and statutory factors
            reflected in N.J.S.A. 2A:34-23(a). The court simply
            appears to have divided the expenses equally. This
            approach is not sustainable.

            [Id. at 310.]




            of the education requested to any prior training and to
            the overall long-range goals of the child.

            [Newburgh, 88 N.J. at 545.]

These factors were reflected in later legislation concerning the parents' child
support obligations. N.J.S.A. 2A:34-23(a); see Kiken v. Kiken, 149 N.J. 441,
449-50 (1997).
                                                                         A-4687-16T3
                                       20
      Likewise, here, despite acknowledging Newburgh's requirement, the

judge allocated college expenses for G.O. in proportion to their respective

incomes as specified in the Guidelines, notwithstanding the fact that defendant

disputed plaintiff's earnings. We recognize the judge's good intentions in that

he made the determination in order to spare the parties the expense of litigating

the issue later and to allow them to devote those averted litigation expenses to

G.O.'s college fund. However, despite acknowledging his limited funds, it is

apparent that defendant does not share the judge's concern. Accordingly, we are

constrained to reverse and remand for the judge to address the parties'

obligations to G.O.'s college expenses applying the Newburgh factors.

      Finally, we consider defendant's contention that the judge failed to

analyze the requisite factors in denying him counsel fees. An award of counsel

fees in a matrimonial action is a discretionary determination, Williams v.

Williams, 59 N.J. 229, 233 (1971), reached after consideration of "the factors

set forth in the court rule on counsel fees, the financial circumstances of the

parties, and the good or bad faith of either party." N.J.S.A. 2A:34-23.

      Rule 5:3-5(c) permits an award of fees upon consideration of the

following nine factors:

            (1) the financial circumstances of the parties; (2) the
            ability of the parties to pay their own fees or to

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            contribute to the fees of the other party; (3) the
            reasonableness and good faith of the positions
            advanced by the parties both during and prior to trial;
            (4) the extent of the fees incurred by both parties; (5)
            any fees previously awarded; (6) the amount of fees
            previously paid to counsel by each party; (7) the results
            obtained; (8) the degree to which fees were incurred to
            enforce existing orders or to compel discovery; and (9)
            any other factor bearing on the fairness of an award.

            [R. 5:3-5(c).]

See Mani v. Mani, 183 N.J. 70, 94-95 (2005) (explaining a court "must" consider

these factors even though Rule 5:3-5(c) says a court "should" consider them).

However, not every factor must be considered, Reese v. Weis, 430 N.J. Super.

552, 586 (App. Div. 2013), and "[w]e will disturb a trial court's determination

on counsel fees only on the 'rarest occasion,' and then only because of clear

abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div.

2008) (citing Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).

      Here, we discern no clear abuse of discretion. The judge found that both

parties had reasonable positions, achieved some success, and had the ability to

bear their respective legal costs. We are satisfied that the judge's decision had

adequate support in the record, and we will not disturb that determination. In

sum, we reverse and remand for the judge to reconsider defendant's child support

obligation based on additional evidence on plaintiff's earning potential, and to


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address the parties' obligations to G.O.'s college expenses, applying the

Newburgh factors. We affirm in all other respects.

      Affirmed in part; reversed and remanded in part for further proceedings

consistent with this opinion. We do not retain jurisdiction.




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