SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4321-17T2

K.S.,

Plaintiff-Respondent,

v.

J.S.,

Defendant-Appellant.

_____________________________

Argued March 20, 2019 – Decided April 4, 2019

Before Judges Reisner and Mawla. 

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Monmouth County, 

Docket No. FM-13-0267-07.

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

K.S., respondent pro se.

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
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Defendant J.S.

1

appeals from a post-judgment order dated April 12, 2018, 

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

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

this opinion.

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

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

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

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

of age, respectively. 

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

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

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

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

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

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

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

management conference to address the unresolved issues. 

 

1

 We utilize initials to protect the parties' and the children's privacy.
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On September 9, 2016, the parties filed a consent order, which resolved 

the remaining issues. The consent order stated the following:

CUSTODY AND PARENTING TIME

18. Plaintiff shall continue to be the [parent of] 

primary residence and [d]efendant the parent of 

alternate residence.

19. [The son] shall commute from Hazlet . . . to 

[New York City] during the week and if [d]efendant has 

a room set up for [the son], he will be allowed to have 

overnights with [d]efendant during the week, if [the 

son] so chooses. . . . Defendant shall have one weekend 

per month with [the son], if [the son] is residing in NYC 

from Monday to Thursday, which shall be agreed upon 

at the beginning of the school year with the parties to 

make efforts to coordinate those weekends with 

functions in the city or defendant's holidays. Plaintiff

shall continue to remain the parent of primary residence 

of both children.

The consent order also required defendant to continue paying child 

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

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

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

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

a change in circumstances enabling a modification of child support.

The consent order also stated:
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The parties agree that each shall contribute toward their 

children's college education. College expenses shall 

include tuition, room and board, miscellaneous school 

fees, books, computer, supplies, transportation, meal 

plans, and any other college related costs and expenses 

which are not covered by student loans, grants, workstudy or scholarships. The child shall accept all 

possible financial aid and subsidized Stafford loans 

available to him or her. Defendant has an income of 

approximately $167,000 per year after deducting his 

child support obligation and [p]laintiff has an income 

of approximately $58,000.00 per year including child 

support by [d]efendant. Based on the parties[']

respective incomes, [d]efendant shall be responsible for 

seventy-five . . . percent and [p]laintiff shall be 

responsible for twenty[-]five . . . percent of any college 

expenses not covered by the child's financial aid as set 

forth above. 

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

turned seventeen and obtained her driver's license. 

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

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

near her residence. The court granted the application. 

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

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

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

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

issues. Plaintiff cross-moved to enforce litigant's rights, including the payment 
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of child support arrears, defendant's obligation for their daughter's car insurance, 

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

extracurricular activities. 

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

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

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

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

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

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

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

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

of circumstances that warrants modification of the parties' agreed upon 

parenting time schedule or child support." 

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

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

order. Specifically, the judge stated:

Based on the parties' [c]ertifications, this [court] finds 

that it is inequitable for [plaintiff] to contribute 

[twenty-five percent] towards college contribution. It 

is clear that [plaintiff] does not have the money to 

contribute more than what she already has. Therefore, 

this [c]ourt finds that [plaintiff] shall be obligated to 
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contribute twenty[-]five percent . . . towards college 

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

college/university. [Plaintiff] has provided [defendant]

with [$2000] . . . towards college expenses and so 

[plaintiff]'s obligation towards college expenses has 

been satisfied.

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

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

appeal followed.

I.

"Appellate courts accord particular deference to the Family Part because 

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

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

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

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

or inconsistent with the competent, relevant and reasonably credible evidence 

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

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

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

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

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

(2008)). "We will reverse only if we find the trial judge clearly abused his or 
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her discretion[.]" Clark v. Clark, 429 N.J. Super. 61, 72 (App. Div. 2012). 

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

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

Div. 2013)). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

defendant established a change in circumstances because his income had
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declined, his living expenses increased, plaintiff is voluntarily unemployed, and 

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

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

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

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

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

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

award defendant counsel fees for enforcing the order. 

A.

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

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

chooses to conduct an interview with the child,

Rule 5:8–6 mandates the court to: (1) conduct an 

interview with the child in camera; (2) "afford counsel 

the opportunity to submit questions for the court's use 

during the interview"; (3) "place on the record its 

reasons for not asking any question thus submitted"; (4) 

create and preserve a stenographic or recorded audio 

record of each interview in its entirety; and (5) provide 

transcripts of the interview(s) to counsel and the parties 

upon request and payment for the cost.

[D.A. v. R.C., 438 N.J. Super. 431, 459 (App. Div. 

2014) (quoting Peregoy, 358 N.J. Super. at 206) 

(quoting Rule 5:8-6).]
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Because the motion judge did not comply with these requirements, we 

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

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

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

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

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

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

Id. at 336.

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

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

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

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

defendant clarified he does not seek a remand for the motion judge to reinterview the parties' son because he opposed an interview from the onset. 

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

was harmless. 

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

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

9:17B–3, in order to exercise 'the basic civil . . . rights' of adults, N.J.S.A. 
10 A-4321-17T2

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

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

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

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

controversies which have become moot or academic prior to judicial resolution 

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

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

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

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

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

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

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

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

of judicial resources given the circumstances. 

B.

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

matrimonial settlement agreement. Matrimonial settlement agreements are 

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

in equity, provided they are fair and just" because they are "essentially 
11 A-4321-17T2

consensual and voluntary in character[.]" Dolce v. Dolce, 383 N.J. Super. 11, 

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

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

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

The child support provisions of a matrimonial settlement agreement are 

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

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

equitable, and if it "should receive continued enforcement without 

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

modification based on circumstances which are only temporary or which are 

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

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

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

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

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

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

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

child support, the guiding principle is the 'best interests of the children.'" Lepis, 
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83 N.J. at 157 (quoting Hallberg v. Hallberg, 113 N.J. Super. 205, 209 (App. 

Div. 1971)).

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

which courts have recognized as changed circumstances:

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

(2) increase or decrease in the supporting 

spouse's income . . . 

(3) illness, disability or infirmity arising after the 

original judgment . . . 

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

apartment . . . 

(5) the dependent spouse's cohabitation with 

another . . .

(6) subsequent employment by the dependent 

spouse . . . 

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

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

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

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

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

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

circumstances. However, the consent order contemplated many of these 
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circumstances, namely, the advent of college for the parties' daughter and the 

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

and residing with plaintiff. Other circumstances alleged by defendant existed 

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

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

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

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

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

was a permanent change. 

We agree with defendant the motion judge employed the incorrect 

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

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

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

facie case for a change in circumstances pursuant to Lepis. 

C.

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

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

judge's decision.
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"In appropriate circumstances, parental responsibility includes the duty to 

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

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

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

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

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

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

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

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

N.J. at 161 n.12).

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

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

which are:

(1) whether the parent, if still living with the child, 

would have contributed toward the costs of the 

requested higher education; (2) the effect of the 

background, values and goals of the parent on the 

reasonableness of the expectation of the child for higher 

education; (3) the amount of the contribution sought by 

the child for the cost of higher education; (4) the ability 

of the parent to pay that cost; (5) the relationship of the 

requested contribution to the kind of school or course 

of study sought by the child; (6) the financial resources 

of both parents; (7) the commitment to and aptitude of 

the child for the requested education; (8) the financial 
15 A-4321-17T2

resources of the child, including assets owned 

individually or held in custodianship or trust; (9) the 

ability of the child to earn income during the school 

year or on vacation; (10) the availability of financial aid 

in the form of college grants and loans; (11) the child's 

relationship to the paying parent, including mutual 

affection and shared goals as well as responsiveness to 

parental advice and guidance; and (12) the relationship 

of the education requested to any prior training and to 

the overall long-range goals of the child.

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

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

Super. at 359-60.

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

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

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

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

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

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

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

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

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

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

college/university." 
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We are constrained to reverse the determination because there is no 

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

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

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

when the motion judge adjudicated the dispute. 

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

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

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

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

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

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

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

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

daughter attending private college. 

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

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

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

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

judge of plaintiff's inability to pay more than $2000 per year. Indeed, plaintiff 
17 A-4321-17T2

filed no CIS and her certifications only provided records of defendant's tax 

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

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

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

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

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

whether a plenary hearing is necessary to adjudicate the college contribution 

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

D.

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

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

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

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

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

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

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

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

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

is alleging and his positions." Defendant's counsel never proffered the list of 
18 A-4321-17T2

issues for mediation and instead scheduled a mediation. In response, plaintiff

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

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

[was on] each issue." 

The motion judge determined defendant had "unilaterally scheduled 

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

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

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

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

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

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

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

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

R. 4:42–9(a)(1)). 

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

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

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

circumstances did not warrant an award of counsel fees to either party. 
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Our review of the record supports the motion judge's conclusions. 

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

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

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

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

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

jurisdiction.