                                NOT FOR PUBLICATION WITHOUT THE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-3277-17T3

FERNANDO ZAPATA,

          Plaintiff-Appellant,

v.

MONICA ZAPATA,

     Defendant-Respondent.
______________________________

                   Submitted November 7, 2019 – Decided January 29, 2020

                   Before Judges Suter and DeAlmeida.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Passaic County,
                   Docket No. FM-16-0252-10.

                   Weinberger Divorce & Family Law Group, LLC
                   attorneys for appellant (Jessica Ragno Sprague, on the
                   briefs).

                   Dario, Albert, Metz & Eyerman, LLC attorneys for
                   respondent (Paul Joseph Concannon, on the brief).

PER CURIAM
                                         I.

      Plaintiff Fernando Zapata appeals the orders denying his request to

terminate payment for his child's college expenses and child support and

denying reconsideration.     He argues he should no longer provide support

because his daughter does not communicate with him. We affirm in part, reverse

in part, and remand for further proceedings. 1

      Plaintiff and defendant divorced in 2011. They had two children. Their

son was emancipated in 2014. Their daughter started college in 2014 and was a

full-time college student at all times relevant to this appeal.2

      The parties' property settlement agreement (PSA) was incorporated into

their dual final judgment of divorce. It addressed college expenses:

            [t]he parties have encouraged their children to obtain a
            college degree. In that regard, Fidelity Trust accounts
            were established for each child. However, since the
            parties were no longer financially able to contribute to
            those accounts, the funds were transferred to the

1
    Plaintiff filed a motion to strike portions of defendant Monica Zapata's
appendix and to remove any reference to those portions of the appendix in her
brief. Defendant filed a cross-motion to supplement the record and strike
statements in the plaintiff's brief. We denied plaintiff's motion without prejudice
and held defendant's cross-motion for consideration by this panel. In light of
our decision, we now deny both the motion and the cross-motion in their
entirety.
2
  She attended a private in-state college and resided there, graduating in May
2019.
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                                         2
            savings accounts in each child's name. The parties
            agree that their children's college education, including
            but not limited to: tuition, reasonable transportation
            costs, books, school activities/events shall—be funded
            in the following order:

            a) Any awarded college scholarship and/or
            grant;

            b) Any work study and/or school loans;

            c) The child's college (Fidelity) account
            until exhausted;

            d) Husband and Wife shall contribute according to their
            ability to pay.


      Under the PSA, plaintiff agreed to pay child support of $246 per week 3

based on his base salary in 2010 of $121,313 (with a $250 supplement in 2010)

and defendant's base salary of $70,000 (with a bonus of $3000 in 2010 that was

not guaranteed), and "with an alimony payment by [plaintiff] to [defendant]."

The child support obligation "shall continue after the date of the [divorce] and

continue for each child until each child is emancipated."




3
  The sole parenting worksheet shows that alimony received by defendant was
included in her side of the calculation.



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                                       3
       In September 2016, plaintiff filed a motion to terminate child support and

his obligation to pay college education expenses.4 He alleged that beginning in

2015, their daughter stopped all communication with him. She made "vile and

vulgar comments" about him. She did not respond to his letters. He asked to

terminate his support for her because she "clearly want[ed] no further

relationship with [him]." He last saw her on her twentieth birthday in 2016.

       This was the second time plaintiff asked the court to terminate his support

obligations. In a series of orders issued on October 21, 2014, the court ordered

plaintiff to continue to pay child support, but emancipated their son, and directed

that a plenary hearing be conducted on the "issues of [the] factors—Newburgh.5"

Another order on the same date required plaintiff and his daughter to attend

counselling, providing:

             [t]hat both [p]laintiff and [daughter] shall attend
             mandatory/court ordered joint counselling sessions
             within ___ days of this order. Failure of [daughter] to
             attend such counseling sessions, will be deemed a
             waiver of her receipt of any continued future college
             payments/support obligations to be made on behalf of
             the [p]laintiff.



4
  Plaintiff also requested an award of attorney's fees and to adjust the date he
paid alimony. The court denied both. Plaintiff did not appeal the alimony issue.
5
    Newburgh v. Arrigo, 88 N.J. 529 (1982).
                                                                           A-3277-17T3
                                        4
There was never a plenary hearing.

      In response to plaintiff's 2016 motion, defendant filed a cross-motion to

enforce plaintiff's payment of child support and college expenses, and for an

award of counsel fees. She requested plaintiff pay two-thirds of their daughter's

college expenses after applying scholarships, grants and federal loans. Their

daughter was a third-year engineering student with excellent grades. Although

scholarships and grants "substantially reduced" her educational expenses,

defendant already had paid $16,907 of their daughter's college, the daughter took

out $21,000 in loans and plaintiff paid $3715.16. Defendant claimed plaintiff's

income was double hers, affording him the ability to contribute more to the

child's education. She also requested plaintiff continue to pay child support

because their daughter was not emancipated.

      Defendant blamed plaintiff for the "strain" in his relationship with their

daughter. On her twentieth birthday, plaintiff emailed her: "I thank you very

much for inviting me to participate, but I must ask you not to invite me again as

I cannot afford such expensive dinners, much less when I have to pay for people

I don't even know and people that don't even talk to me." On her twenty-first

birthday, he emailed her saying, in part, this was a "new chapter" and




                                                                         A-3277-17T3
                                       5
"beginning" for her. "Today you can no longer blame others for what you do ,"

signing off as "[y]our forgotten dad."

      Their daughter also certified she attended four joint counselling sessions

with her father in 2014 and 2015. The sessions were jointly terminated by the

counselor, her father and herself because "they were no longer necessary." She

denied terminating the sessions unilaterally.          She disputed plaintiff's

representation about a lack of contact with her. He attended Christmas dinner

in 2015 and they exchanged text messages in 2016. She did not refuse to

communicate with her father. Her relationship with him was "broken, but . . .

not destroyed."

      Plaintiff agreed there had been five counselling sessions: two with just the

daughter and the counselor; one with just plaintiff and the counselor; and two

with the two of them and the counselor. He denied terminating the sessions.

The counselor indicated it was up to their daughter to continue the sessions, who

did not feel they were needed. He did not agree with her attending private

schools because of the costs. He claimed he was not consulted about her choice

of college. He did not deny the emails he sent her. The parties' son alleged in

his certification that his sister "spurned" attempts by plaintiff to communicate

with her and "refused to participate" in events with him.


                                                                          A-3277-17T3
                                         6
      On December 8, 2017, the court denied plaintiff's request to terminate

support because he failed to show that their daughter did not comply with the

2014 order. It granted defendant's request to require plaintiff to pay two-thirds

of her college expenses because plaintiff did not show any reason to alter this

agreement. The order from 2014 did not require a set number of sessions. The

court found plaintiff did not show a change in circumstances warranting a

change in his support obligation. The only factor he addressed from Newburgh

was the parent-child relationship. There was no requirement of a relationship

for the non-custodial parent to have the obligation to "defray college expenses."

      On reconsideration, plaintiff alleged the court did not consider the factors

under Newburgh. He claimed he would not have paid for their daughter's college

given her behavior if the parties were residing together (factor one). The court

had not made the finding that he had the financial ability to pay (factor one and

four). It did not consider the financial resources of the parties, (factor six), nor

the child's ability to earn income or her financial resources (factors eight and

nine). He objected to his daughter enrolling in private school because of the

cost and suggested a public university. Defendant requested contribution toward

the child's college expenses three years after she enrolled. Plaintiff disputed the




                                                                            A-3277-17T3
                                         7
PSA required him to pay two-thirds of the expenses. The court failed to consider

he was paying alimony.

       Plaintiff requested to modify child support, claiming he was still paying

for the emancipated son.      He again requested an award of counsel fees.

Defendant opposed reconsideration.

       The court denied reconsideration on February 16, 2018, finding it "made

clear, on both the record and written decision" that it considered the factors

enumerated under Newburgh and Gac.6 He "failed to show that termination of

his obligation towards college expenses was warranted."

       The court supplemented its decision in March 2018, clarifying it denied

plaintiff's request to modify child support because he had not requested that

relief in his original motion. It denied plaintiff's request to terminate support

for their daughter because the parties agreed to pay college expenses in their

PSA and plaintiff did not show the PSA should be modified or set aside.

       On appeal, plaintiff argues the court erred by requiring plaintiff to pay

child support for their daughter because she should have been emancipated and

because the Child Support Guidelines do not apply. He contends the court erred

by ordering him to pay two-thirds of her college expenses. The trial court failed


6
    Gac v. Gac, 186 N.J. 535 (2006).
                                                                         A-3277-17T3
                                       8
to consider the Newburgh factors. In the alternative, plaintiff requests a remand

for a plenary hearing on these issues. He argues the trial court erred by denying

his request for attorney's fees.

                                     II.

      We accord "great deference to discretionary decisions of Family Part

judges[,]" Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012), in

recognition of the "family courts' special jurisdiction and expertise in family

matters . . . ." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328,

343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). However, "[a]

trial court's interpretation of the law and the legal consequences that flow from

established facts are not entitled to any special deference."       Hitesman v.

Bridgeway, Inc., 218 N.J. 8, 26 (2014) (quoting Manalapan Realty, L.P. v. Twp.

Comm. of Manalapan, 140 N.J. 366, 378 (1995)). "Reversal is reserved for only

those circumstances in which we determine the factual findings and legal

conclusions of the trial judge went 'so wide of the mark that a mistake must have

been made.'" Avelino-Catabran v. Catabran, 445 N.J. Super. 574, 587 (App.

Div. 2016) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261,

279 (2007)).




                                                                         A-3277-17T3
                                           9
      We review for abuse of discretion the denial of plaintiff's request to

terminate support for his daughter. See Jacoby v. Jacoby, 427 N.J. Super. 109,

116 (App. Div. 2012). In New Jersey, a parent has the duty to support a child

until the child is emancipated. Gac, 186 N.J. at 542. A non-custodial parent,

such as plaintiff, can be required to pay child support for an unemancipated child

and also contribute to the unemancipated child's college expenses.            "The

payment of college costs differs from the payment of child support for a college

student." Jacoby, 427 N.J. Super. at 121 (citing Hudson v. Hudson, 315 N.J.

Super. 577, 584 (App. Div. 1998) (providing "[c]hild support and contribution

to college expenses are two discrete yet related obligations imposed on

parents")).    Plaintiff's November 2016 motion requested to terminate both

obligations.

      Addressing first the issue of college expenses, the parties agreed in their

PSA that they would pay for their children's college education and "contribute

according to their ability to pay."         They agreed the children would be

emancipated upon "reaching the age of eighteen . . . years, or the completion of

four . . . academic years of college education, within a period no longer than five

. . . academic years." Their daughter was not emancipated at the time plaintiff

filed to terminate support because she was attending college.


                                                                           A-3277-17T3
                                       10
      A parent's obligation to pay college expenses generally involves a "two-

fold" analysis "for an academically motivated unemancipated child . . . ." Ricci

v. Ricci, 448 N.J. Super. 546, 579 (App. Div. 2017). "First, it demands a

determination of whether equitable or other considerations militate against

parents paying college costs." Ibid. "Second, the court must scrutinize whether

the parents are financially capable of contributing." Ibid.

      Plaintiff's only argument against enforcement of the PSA's provision

requiring him to pay college expenses is that he and his daughter have no

relationship. We agree with the trial court that her participation in the

counselling sessions did not require a termination of plaintiff's obligation to pay

college expenses under the October 21, 2014 order. The parties all agreed there

were counselling sessions. That order did not include a specific number of

counselling visits nor say who could end the sessions.

      However, the record shows the parties have a different view of their

relationship.   Plaintiff contends they have no relationship; their daughter

contends the relationship is broken, but still exists. Plaintiff contends he was

not consulted about her selection to attend the college from which she recently

graduated. She contends he paid the application fee and is a graduate of the

same college. There was an order from 2014 that required a plenary hearing.


                                                                           A-3277-17T3
                                       11
Even if the trial court could have reevaluated the need for this plenary hearing,

it did not do so despite the parties' disagreement on this issue. The court erred

by not conducting a plenary hearing on this issue. "[W]here the affidavits show

that there is a genuine issue as to a material fact, and that the trial judge

determines that a plenary hearing would be helpful in deciding such factual

issues, . . . a plenary hearing is required." Jacoby, 427 N.J. Super. at 123

(quoting Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976)). We reverse

the orders that denied plaintiff's request to terminate his payment of college

expenses and order a plenary hearing to determine if the parties' relationship

provided an equitable basis not to enforce this portion of the PSA.

      The next step in the analysis is to determine the amount of the

contribution, assuming the college support obligation continues under the PSA.

The PSA listed the incomes of the parties as of 2011, but it did not provide they

would pay college expenses based on that income or based on a two-thirds, one-

third allocation. We are constrained to reverse the portion of the prior order that

allocated the responsibility by two-thirds to plaintiff and one-third to defendant.

"[A] trial court should balance the statutory criteria of N.J.S.A. 2A:34-23(a) and

the Newburgh factors, as well as any other relevant circumstances, to reach a

fair and just decision whether and, if so, in what amount, a parent or parents


                                                                           A-3277-17T3
                                       12
must contribute to a child's educational expenses."      Gac, 186 N.J. at 543.

Although the trial court indicated it had undertaken that analysis, it was not

evident from the record. A court is required to make findings of fact and reach

conclusions of law. See R. 1:7-4(a). On remand, the trial court will need to

evaluate the factors under N.J.S.A. 2A:34-23(a) based on updated financial

information.

      The court denied plaintiff's request to modify child support because he

filed a motion to terminate support not to modify it. However, in granting

defendant's cross-motion, the court required plaintiff to continue to make the

same support payments based on a finding there was no change of

circumstances. This was an error. "[T]he child's attendance at college is a

change in circumstance warranting review of the child support amount." Jacoby,

427 N.J. Super. at 113. Also, the parties' son had been emancipated, which was

an additional change in circumstances. Mahoney v. Pennell, 285 N.J. Super.

638, 643 (App. Div. 1995) (providing "[w]here there is no longer a duty of

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

become due"). Where "circumstances have changed in such a way that [the

support provision] would no longer be equitable and fair, the court . . . remains




                                                                         A-3277-17T3
                                      13
free to alter the prior arrangement." Lepis v. Lepis, 83 N.J. 139, 161 n.12

(1980).

         The existing child support order was based on the Child Support

Guidelines for two children. The Guidelines no longer applied because their

daughter was living away from home at college and the other child was

emancipated. See Jacoby, 427 N.J. Super. at 113 (providing "[r]esort to the

[guidelines] to make support calculations for college students living away from

home is error"). It was error for the court not to redetermine plaintiff's support

obligation based on the statutory factors under N.J.S.A. 2A:34-23(a).

         Plaintiff argues the trial court erred by denying his request for attorney's

fees because it did not provide reasons. "Rule 4:42-9(a)(1) authorizes the award

of counsel fees in a family action on a final determination pursuant to Rule 5:3-

5(c)."     Gotlib v. Gotlib, 399 N.J. Super. 295, 314 (App. Div. 2008).             In

determining the fee award, there are a number of factors to be considered as set

forth in Rule 5:3-5(c).     As long as there is support for the determination, the

trial court's factual findings will not be disturbed whether or not every factor is

discussed. See Reese v. Weis, 430 N.J. Super. 552, 586 (App. Div. 2013). The

assessment of attorney's fees is an issue left to the sound discretion of the trial

court. Tannen v. Tannen, 416 N.J. Super. 248, 285 (App. Div. 2010).


                                                                             A-3277-17T3
                                         14
      The court did not explain its decision for denying fees. Rule 1:7-4(a)

requires that in all actions tried without a jury the court "shall, by an opinion or

memorandum decision, either written or oral, find the facts and state its

conclusions of law . . . ." We are constrained to reverse the fee orders for that

reason. Also, in light of our remand, the decision on fees should await the

conclusion of the further proceedings.

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

We do not retain jurisdiction.




                                                                            A-3277-17T3
                                        15
