SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3392-16T2

STEPHEN E. BRYANT,

Plaintiff-Appellant,

v.

MELISSA J. ELAM (f/k/a

BRYANT),

Defendant-Respondent.

_____________________________

Submitted July 3, 2018 – Decided March 20, 2019

Before Judges O'Connor and Moynihan.

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Hudson County, 

Docket No. FM-09-1697-00.

Stephen Bryant, appellant pro se.

Respondent has not filed a brief.

The opinion of the court was delivered by 

O'CONNOR, J.A.D.

NOT FOR PUBLICATION WITHOUT THE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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Plaintiff Stephen Bryant appeals from a February 27, 2017 Family Part 

order which, among other things, compels him to contribute toward the parties'

children's college education expenses. Plaintiff also appeals from a March 24, 

2017 order denying his motion for reconsideration. We affirm in part and 

reverse in part.

I

Plaintiff and defendant Melissa Elam have two children, a son and a 

daughter. The parties were divorced in 2001. The judgment of divorce states 

a settlement agreement resolving all issues was placed on the record on May 7, 

2001, and that such agreement was made part of that judgment. Four months 

later, the court received a written property settlement agreement (agreement) 

for its files, although the copy the court received was not signed by either 

party.

Three paragraphs in the agreement pertain to the parties' obligation to 

contribute toward their children's college education. Those paragraphs state as 

follows:

14. The parties acknowledge their responsibility to 

contribute towards the education of their children. 

15. When [the children] attain college age and they 

demonstrate an interest and aptitude to pursue a college 

education, the parties shall contribute to the cost of that 
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education according to their relative financial abilities 

at that time. College expenses, which will be paid by 

the parties[,] are room, board, tuition, books, fees and 

transportation to and from school. All other expenses 

for [the children][,] for example, clothing and 

entertainment, will be paid by the Wife or by [the 

children] from their earnings during the school year or 

during their summer vacation. 

16. The payment of each party of [the children's] 

college expenses for each school year will be according 

to the ratio of each party's income to the total combined 

income of both parties for the preceding calendar year. 

The percentages payable by each party will be adjusted 

on a yearly basis based on each party's income for the 

preceding calendar year. For example, if during the 

calendar year preceding the commencement of [the 

children's] first year of college, the total income of the 

parties is $150,000.00, with the Husband's gross 

income being $100,000.00 and the Wife's gross income 

being $50,000.00, the Husband would pay for twothirds of the college expenses for [a child's] first year 

of college and the Wife could pay one-third. 

In February 2017, defendant filed an emergent application seeking 

enforcement of the parties' agreement. Specifically, she sought an order 

directing plaintiff pay certain expenses associated with their daughter's recent 

enrollment in a particular college. Finding it was not emergent, the court 

converted the application into a motion and adjourned the matter to a later 

date. Plaintiff did not file any opposition to the motion but, during oral 
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argument on the return date of the motion, the court permitted him to place his 

position on the record.

Significantly, despite numerous references to the written agreement 

during oral argument, at no time did plaintiff disavow the existence or validity 

of the written agreement. In fact, the following exchange occurred during 

colloquy between the court and plaintiff:

THE COURT: All right, but you understand that under 

the judgment of divorce, you agreed to both pay. It 

doesn't say the kids are to get their own financial loans; 

it says that the parents are both to contribute according 

to their income. 

PLAINTIFF: Okay. 

THE COURT: Right?

PLAINTIFF: Right. 

On February 27, 2017, the court entered an order granting defendant's 

motion to enforce the college contribution provisions of the parties' written 

agreement. The order noted plaintiff was responsible for 85.14% and 

defendant 14.86% of the children's college expenses for the "2017 academic 

year." The order also noted that, after applying grants, scholarships, and loans, 

plaintiff's 85.14% share of the daughter's tuition was $6,445.61 and 

defendant's 14.86% share was $1,124.99. Plaintiff was ordered to pay his 
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share within seven days. Plaintiff was also ordered to pay his share of the 

son's tuition within seven days of receiving a copy of the tuition invoice from 

defendant.

Plaintiff filed a motion for reconsideration of the February 27, 2017 

order. Relevant to the issues on appeal, plaintiff contended the written 

agreement did not accurately reflect the agreement placed on the record at the 

time the judgment of divorce was entered. The court rejected this argument. 

During oral argument, the court advised it had reviewed the court's file and 

discovered that, over the previous sixteen years, plaintiff sought to enforce 

various provisions of the written agreement when it suited him. The court 

determined plaintiff was barred under the doctrine of laches 1from asserting the 

written agreement did not accurately reflect the agreement that was placed on 

the record during the uncontested divorce hearing.

On March 24, 2017, the court entered an order which, among other 

things, denied plaintiff's motion for reconsideration and a request he obtain a 

 

1

 "Laches is an equitable doctrine, operating as an affirmative defense that 

precludes relief when there is an 'unexplainable and inexcusable delay' in 

exercising a right, which results in prejudice to another party." Fox v. 

Millman, 210 N.J. 401, 417 (2012) (quoting Cty. of Morris v. Fauver, 153 N.J. 

80, 105 (1998)).
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copy of defendant's income tax returns and her Social Security Disability 

Award letter. This appeal ensued.

II

On appeal, plaintiff's principal contentions are the trial court erred 

because it failed to order a plenary hearing to determine: (1) whether the 

written agreement contained the terms agreed upon by the parties; (2) the 

parties' respective gross incomes; and (3) whether the children had become 

emancipated. In addition, plaintiff asserted the February 27, 2017 and March 

24, 2017 orders should not have been entered because the children did not 

consult with him "in the college decision making process." Finally, plaintiff 

argues that, on remand, this matter must be heard by a different judge.

Our review of the trial court's decision is limited. We must defer to the 

court's factual findings, so long as they are supported by sufficient credible 

evidence. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). However, if "the 

trial court's conclusions are . . . 'clearly mistaken' or 'wide of the mark'" we 

will "intervene and make [our] own findings to ensure that there is not a denial 

of justice." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 

(2008) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 

(2007)). 
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A plenary hearing is not required in every contested proceeding. A 

plenary hearing is in order only if there is a genuine, material and legitimate 

factual dispute. See Lepis v. Lepis, 83 N.J. 139, 159 (1980) (holding that "a 

party must clearly demonstrate the existence of a genuine issue as to a material 

fact before a hearing is necessary."); see also Hand v. Hand, 391 N.J. Super. 

102, 105 (App. Div. 2007) (explaining that hearing is required only when there 

"is a genuine and substantial factual dispute . . . .").

We reject plaintiff's contention the court was obligated to hold a plenary 

hearing to determine whether the written agreement contained the terms agreed 

upon by the parties. In our view, there was sufficient evidence the parties 

recognized the written agreement as valid and binding upon them. As the 

court found, plaintiff has used the written agreement when necessary to 

advance his interests, key evidence he does recognize the validity of the 

agreement. The court's factual findings are supported by sufficient credible 

evidence, to which we must defer.

Further, plaintiff failed to file any opposition to the original motion, 

even though defendant clearly relied upon the terms of the written agreement 

in support of the arguments in her moving application. Significantly, plaintiff

did not dispute the validity of the agreement during oral argument; in fact, he 
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admitted the terms of the agreement that pertained to college expenses were 

binding upon the parties. Finally, if plaintiff were in fact earnest in his 

conviction the written agreement did not accurately reflect the agreement the 

parties placed on the record at the time of the uncontested divorce hearing, 

then it behooved him to produce a transcript of that hearing.

Plaintiff argues that neither the February 27, 2017 nor the March 24, 

2017 order should have been entered, because the children did not consult with 

him before they chose the college they wished to attend. He also contends the 

court should have scheduled a plenary hearing to determine whether the 

children had become emancipated. Based upon the record plaintiff provided to 

us, neither of these two arguments was raised before the trial court. 

"Generally, an appellate court will not consider issues, even constitutional 

ones, which were not raised below." State v. Galicia, 210 N.J. 364, 383 

(2012).

To be sure, during argument on the motion for reconsideration, plaintiff 

referenced the fact he wanted his daughter to heed his advice on what college 

to attend and how to finance her education. But his position was not that he 

should be relieved of his obligation to contribute toward college expenses 

because the children did not discuss their choice of college with him.
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Plaintiff argues the court should have conducted a plenary hearing to 

determine the parties' respective gross incomes. We do not agree a plenary 

hearing was necessary, but we do agree a copy of defendant's income tax 

returns and the Social Security Disability Award letter should have been 

provided to plaintiff. He was entitled to ascertain if defendant's income tax 

returns indicated she was receiving income from a source other than from 

disability payments. We therefore reverse that portion of the March 24, 2017 

order that denied plaintiff's request for these documents, and remand this 

matter to the trial court so that it can enter an order forthwith granting such 

relief to plaintiff by a date certain.

We have considered plaintiff's remaining arguments, including but not 

limited to the argument this matter should be heard by a different judge, and 

determine they are without sufficient merit to warrant discussion in a written 

opinion. See R. 2:11-3(e)(1)(E).

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

consistent with this opinion.