SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-2979- 21 ALLISON RODEN, Plaintiff-Respondent,

v. GREGG MISTRETTA, Defendant-Appellant.

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Submitted December 11, 2023

– Decided April 2, 2024 Before Judges Berdote Byrne and Bishop-Thompson On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FD- 04

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- 17. The Marks Law Group, LLC, attorneys for appellant (Erika Rene Marks, on the briefs). Stockton Family Law, LLC, attorneys for respondent (Kathleen Pasquarel lo Stockton and Jessica A nn Beardsley, on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 t he internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 2979

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Defendant Gregg Mistretta appeals from an April 20, 2022 Family Part order denying his motion to terminat e child support as of May 2020 , to determine a fixed amount of college expenses , denying his request for attorneys' fees, and granting plaintiff Allison Roden's attorn eys' fees. Having considered the record in light of applicable legal standards, we affirm in part, reverse in part, and remand

. I. We glean the following facts from the record of the six -day plenary hearing, during which the court heard testimony fro m the parties, the parties' daughter, and Mistretta's business partner, Brian L ourenco. The parties were never married, but have a daughter , A.R., who was born in 2002. Each party is currently married with chil dren; Roden has one teenager and Mistretta has three young children.
O n May 17, 2004, 1 the parties entered a consent order for parenting time and child support. The consent order obligated Mistretta to pay $1,400 per month in child support. Mistretta's obligation was m odified in September 2016, and child support was reduced to $1,350 per month.

1 The consent order is dated May 17, 2004; however, t he order was filed on June 22, 2004. As such, the portions of the record and the Family Part's order use June 22, 2004 as the controlling date for the 2004 consent order.3 A- 2979

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The consent order also addressed the parties' oblig ations toward college expenses. Each party agreed to deposit $2,400 into A.R.'s college fund, increasing that amount by $200 per year until each party contributed $3,600 maximum per year until A.R. began college. The parties also agreed to pay the balance of any college expenses based on their resp ective ability to pay for college. A.R. was to incur student loans in the ev ent the college fund was "insufficient" to cover the full cost of college.
O n August 25, 2016, the parties entered another consent order that directed Roden to transfer $5,000 , previously deposited by Mistretta, from A.R.'s college account held by her into Mistretta's c ollege account for A.R. The order expressly provided that "[p]ursuant to the Ju ne 22, 2004 consent order, each parent [was] required by August 31, 2020 to ha ve at least $57,000 available to contribute to [A.R.'s] college education expenses. " Lastly, the parties agreed Mistretta's child support obligation would be recal culated upon A.R. 's graduat ion from high school. Although b oth parties were involved in A.R.'s college search, they separately took A.R. on college tours. A.R. applied to ten colleges and was accepted into her first-choice college , a public university in South Carolina

. Mistretta testified that he told A.R. on mu ltiple occasions that he and Roden had4 A- 2979

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saved $60,000 each for college and that she would b e responsible for any costs greater than $114,000. Mistretta claimed that he d id not have any specific discussions with Roden concerning A.R.'s selection of the university. He further claimed that he did not participate in the free app lication for federal student aid application process nor was he privy to any financi al documents associated with A.R.'s college enrollment. In contrast, A.R. testified that both parents were "pretty active in the decision-making process" of her enrollment decision

. A.R. ultimately decided to attend college in South Carolina and told Mistre tta of her choice. She also stated that she received federal grants and loans a nd worked while in college. Mistretta timely paid his child support obligations prior to A.R.'s graduation from high school. Following A.R.'s grad uation in June 2020, Mistretta, then self-represented, moved to terminat e child support and emancipate A.R. He believed that his child support "paym ents were due to stop when [A.R.] [was] emancipated." The record shows a fter the filing of th at application , their father-daughter relationship fractured

. Mistretta claimed that he had experienced "financia l distress" related to the COVID-19 pandemic. He testified that he was se lf-employed and his entertainment business

– a "DJ business and nightclub styled venue" were5 A- 2979

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reduced to "almost zero money" due to "mass cancell ations" related to t he pandemic

. Mistretta also owned a commercial building that ho used the nightclub, which had been vacant since the start of the pandemic, and he had not made mortgage payments on the nightclub in fifteen months as of the date of the hearing. Mistretta claimed that in 2020, the busin ess had "zero" future bookings, he was not collecting deposits, and he had no cash flow. According to his case information statement, Mistretta received $52,000 i n unemployment benefits in 2020 and continued to receive them in 2021

. Mistretta also received $200,000 in paycheck protec tion program (PPP) loans, the majority of which has been forgiven

. Most of the funds were used to pay the business credit card , a "couple of mortgage payments," employee payroll for several months, and employee benefits. He also received two COVID- 19 economic injury disaster loans (EIDL) for each busi ness, totaling $300,000 that had to be paid back. Lourenco corrob or ated Mistretta's testimony that the companies suffered financial distress during the pa ndemic and received two "unforgiveable" EIDL loans. As of August 2020, Mistretta had complied with the 2016 order and funded $61,000 in A.R.'s college fund while Roden h ad saved only $5,000.
Mistretta believed A.R. was not entitled to the ent irety of the $61,000 that was6 A- 2979

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previously held in her college savings account beca use that money belonged to all his children. Mistretta testified us ing all of the college fund solely on A.R.'s education because she chose to attend a more expens ive school was not fair to his other children, and he closed the college fund designated for A.R. So, by October 2020, Mistretta had deposited the $60,000 f rom A.R.'s college fund account into the other children's college fund tota ling $100,000. Five months later, Mistretta, represented by counse l, again moved to terminate child support, and requested that his col lege contribution be deemed sufficient to support A.R. Roden cross-moved, seek ing Mistretta's cooperation with the forensic accountant she had retained , requiring payment of A.R.'s spring 2021 college tuition, and requir ing the return of funds Mistretta removed from A.R.'s college fund account. Mistretta was or dered to pay A.R.'s Spring 2021 tuition without prejudice. Four additional orders followed in January, July, Septe mber, and October 2021. In each instance except for July, the court req uired Mistretta to pay A.R.'s college tuition. Roden testified that she and Mistretta had agreed i n 2017 to send A.R. to private school for the remainder of her high school education and that Roden could use her portion of A.R.'s college fund to pay for it. After Mistretta7 A- 2979

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declined to share A.R.'s high school tuition expens es, Roden testified that she spent $35,000 towards A.R.'s private high school tu ition, limiting her ability to save for A.R.'s college education. However, she pr omised that she would contribute the $57,000 in compliance with the 2016 consent order. Roden also testified that she retained a forensic accountant, who prepared an expert report. Based on Mistretta's records reviewed by the accoun tant, he opined that in 2018, Mistretta 's gross income was $243,214 and net income was $199, 435; in 2019 , his gross income was $196,215 and net income was $1 60,896; and in 2020 , his gross income was $94,711 and net income was $77,683

. The forensic accountant noted that the pandemic "significantly i mpacted" Mistretta's business operations. The forensic accountant further opined that Mistretta' s 2021 income would meet or exceed that of 2020, but "not at a ma terial level." Following the plenary hearing, the court rendered a n oral decision, which summarized its findings of facts and reasoning. Th e court rejected Mistretta's argument that his estrangement from A.R. and the trial court's citat ion to Newburgh v. Arrigo, 88 N.J. 529 (1982) in the July 15, 2020 order required the application of the Newburgh factors. The court not ed that the law was clear that Newburgh does not apply when there's "an agreement, a consent order, and a court order" as long as the terms are "equitable an d just."8 A- 2979

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The court found the Newburgh factors did not apply because Mistretta had agreed to contribute towards A.R.'s education in th e parties' 20 16 consent order and was involved throughout A.R's college selection process. The trial court further determined Mistretta's Newburgh argument wa s "disingenuous" because both parties envisioned paying for A.R.'s college t uition as evinced in the 2016 consent order. The court found Mistretta had the m oney, "collected the money," made an application to the court certifying that he had the money, and the first case information statement showed he had the money. However, when his application to terminate child support was denied, he unilaterally closed A.R.'s account. In sum, the court found that Mistretta's testimony was "contradictory," "not credible," and the closure of A.R.'s college ac count was done in "bad faith" and "really [out of] spite." Nevertheless, the court addressed each Newburgh fac tors, finding the parties had an expectation that A.R. would attend c ollege and there was "no question" Mistretta would have contributed to A.R.' s college education had she resided with him, given the parties' consent orders

. The court also found that the record did not support Mistretta's argument tha t he was unaware of A.R.'s higher education pursuits

. A.R. 's commitment and aptitude for higher education, along with her conversations with Mistre tta, established a reasonable9 A- 2979

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expectation that she would attend college and knew how much her parents had saved for college. Further, A.R. informed Mistrett a when she made her choice to attend college in South Carolina. Citing Jacoby v. Jacoby , 427 N.J. Super. 109 (App. Div. 2012), the court explained that there was no presumption that a chil d's required financial support lessens because the child attends college. The cou rt noted that despite explaining that legal principle to Mistretta on num erous occasions, he "refused to pay. " The court considered that Mistretta lived a "very nice lifestyle" with income close to $300,000 , had family vacations, made contributions to his savings and retirement accounts and the children's college funds, drove "fancy cars" and paid car loans, and his young children at tend ed day care , camps, and private schools. The court then enforced the 2016 consent order and directed Mistretta to pay $8,673 towards A.R.'s college expe nses after considering his prior contributions of $48,327 , Roden to pay an additional $31,981.74 towards A.R.'s college expenses , and A.R. to be responsible for any additional colle ge
expenses. After consider ing the relevant law and statutes, the court then comp uted child support based on A.R.'s status as an out- of -state college student and her continued reliance on Roden's New Jersey residence. The court determined10 A- 2979

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A.R's expenses totaled $2,485 per month and apporti oned the expenses evenly between the parties. Mistretta was ordered to pay $1,242.50 per month in child support, retroactive to September 2020. The court also granted Roden's request for attorney s' fees. In analyzing the factors outlined in Rule 5:3 -5(c), the court found Mistretta could pay Roden's fees because he had his own fees reimbursed by his father. The court also found that Mistretta took unreasonable positions and lack ed good faith throughout the litigation. Based on Roden's submissions, Mistrett a was ordered to pay $16,450 of her attorney's fees.
II. On appeal, Mistretta presents three arguments. Fir st, the trial court erred in enforcing the August 2016 order regarding college contributions based on his changed circumstances due to the COVID-19 pandemic and Roden's lack of compliance with the court orders. Second, the cour t erred in establishing a child support award in accordance with N.J.S.A. 2A:34- 23a . Third, the court abused its discretion in awarding attorneys' fees to Roden and denying his "good faith" application for attorneys' fees. Our review of Family Part orders is limited. Cesar e v. Cesare, 154 N.J. 394, 411 (1998). Appellate courts accord the trial court's factual findings after11 A- 2979

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a bench trial substantial deference when "'supporte d by adequate, substantial, credible evidence' in the record." Landers v. Land ers, 444 N.J. Super. 315, 319 (App. Div. 2016) (quoting Gnall v. Gnall, 222 N.J. 414, 428 (2015)). Deference does not extend to legal issues, which are subject to de novo review. Ricci v. Ricci, 448 N.J. Super. 546, 565 (App. Div. 2017). "[W]e do not overturn those determinations unless the court abused its discreti on, failed to consider controlling legal principles or made findings incon sistent with or unsupported by competent evidence." Storey v. Storey, 373 N.J. Super. 464, 479 (App. Div. 2004). The same standard guides our review of an a ward of attorneys' fees. Diamond Beach, LLC v. March Assocs., 457 N.J. Super . 265, 285 (App. Div. 2018). We defer to the credibility determinations made by the tria l court because the trial court "'hears the case, sees and observes the witnesses, and hears them testify,' affording it 'a better perspective than a reviewing court in evaluating the veracity of a witness.'" Gnall, 222 N.J. at 428 (q uoting Cesare, 154 N.J. at 412). But "[a]ll 'legal conclusions, and the application of those conclusions to the facts, are subject to our plenary review.'" Slutsk y, 451 N.J. Super. at 344-45 (quoting Reese v. Weis, 430 N.J. Super. 552, 568 (A pp. Div. 2013)).
A.12 A- 2979

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New Jersey's legislature and courts "have long rec ognized a child's need for higher education . . . ." Gac v. Gac, 186 N.J. 535, 542 (2005). As such, courts should consider the non-exhaustive factors d elineated in Newburgh when evaluating a claim for contribution towards the cos t of a child's higher education. Id. at 543. When there is an agreement between the parties regarding the child's college education and the agreement is clear as to how expenses should be divided, Newburgh is inapplicable and the "court sh ould enforce the agreement as written." Avelino-Catabran v. Catabran, 445 N.J . Super. 574, 591 (App. Div. 2016) (citations omitted). Applying these governing principles, we conclude the trial court did not abuse her discretion in enforcing the 2004 consent order. The parties' 2004 consent order, reaffirmed in the 2016 order, expres sly and unambiguously bound the parties to contribute $57,000 towards A.R.'s co llege tuition based on their respective incomes. Having reviewed the record, we are satisfied that the trial court correctly followed the 2016 consent order and concluded the Newburgh factors were not applica ble , based on Mistretta's involvement in the college process, conversations with A.R. concerning her col lege fund, and his certification that he had the funds when he filed h is first application to13 A- 2979

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emancipate A.R. The court found Mistretta not cred ible, and we discern no error in that finding. Even if Newburgh was applicable, the court found Mi stretta did not present credible evidence of an inequity or a subst antial change in circumstances which would relieve him from his obligation to contribute towa rds A.R.'s college expenses and shifting the sole responsibili ty to Roden and A.R. The court evaluated Mistretta 's claim that he could not afford to pay any further child support because he has three additional children, a nd determined the children did not demonstrate a change in circumstances suffi cient to require a modification of his child support. We also add that based on the record, Mistretta has a "reasonable and fairly balanced pla n" as shown by the college funds established for each of his three young child ren. See Black v. Black, 436 N.J. Super. 130, 153- 155 (Ch. Div. 2013). Assuming Mistretta's three other children aspire to attend college, he has a reasona ble amount of time to continue to contribute toward their college funds in preparation fo r their future education pursuits. See Enrico v. Goldsmith, 237 N.J. 572, 577 (App . Div. 1990 ). Lastly, assuming any estrangement by A.R., it is but one factor within a twelve-factor Newburgh analysis , which was not sufficiently supported by the record. We see no reason to disturb the trial court order enforcin g the 2016 consent order and14 A- 2979

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finding Mistretta remained financially responsible for his share of A.R.'s college
expenses. B. Mistretta argues the trial court failed to analyze the factors in N.J.S.A.
2A:34 -23a in recalculating his child support obligation. Instead, the trial court consider ed A.R.'s unverified expenses and incorrectly charged him for offcampus housing when he paid for campus room and boa rd. We are persuaded by Mistretta's arguments. The obligation of a parent and the right of a child to support may give rise

to "the duty to assure children of a college and even of a postgraduate education" Newburgh, 88 N.J. at 544. It is well-established that college contribution differs from child support of a college student. See Hudson v. Hudson, 315 N.J. Super. 577, 584 (App. Div. 1998) ("Child support and contributio n to college expenses are two discrete yet related obligations imposed on parents." ). As explained to Mistretta by the Family Part court on numerous occasions, there is no presumption a parent's child support ob ligation will decrease because the child is attending college. Jacoby, 427 N.J. S uper. at 113. Since the "payment of college costs differs from the payment of child support for a college student," an obligor's costs may even rise. Id. at 121. When determining the15 A- 2979

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amount of support, courts should evaluate the parti es' circumstances based on the factors in N.J.S.A. 2A:34-23a, as well as the c hild's continued need for a local residence during school breaks and between se mesters and other "costs associated with supporting a college experience." Id. at 121- 22. Here, the record shows the trial court mistakenly a pplied the statute and corresponding legal principles in review ing A.R.'s expenses as a college student and found most of the expenses to be reasonable. I n contrast, the court correctly found gas, restaurants, vacations, and entertainmen t expenses to be unreasonable , and therefore should be paid by A.R. Second, Mistr etta has not offered evidence showing that A.R.'s needs have les sened since attending college. Lastly, even at the peak of the pandemic, Mistretta earned more than Roden, had monthly expenses of over $20,000 per mon th, and retained over $200,000 in various savings and retirement accounts

. We, however, conclude the trial court mistakenly included A.R's $750 mont hly rent for her apartment and her $75 in monthly food expenses in the court's child supp ort calculation. Although the 2004 and 2016 consent orders did not allocate college ex penses, "[t]he typical college expenses associated with col lege attendance include tuition, registration fees, lab costs, housing, board, books, and computer costs. " Jacoby, 427 N. J. Super. at 121. Therefore, we rev erse the provision of the April16 A- 2979

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20, 2022 order, and remand to the Family Part for f urther analysis consistent with those governing principles.
C. Under Rule 4:42 -9(a)(1), attorney's fees are allowable "[i]n a fam ily action . . . pursuant to Rule 5:3 -5(c)." Rule 5:3 -5(c) provides in part that the court, in its discretion, may award attorney's fees to be paid by any party in a Family Part matter who succeeds on "any . . . claim s relating to family type
matters." The trial court appropriately considered the Rules of Professional Conduct 1.5 factors and rejected Mistretta's claim that he filed his motions in good -faith to determine his child support and college t uition obligations. We agree. As we have discussed, Mistretta routinely r efused to abide by the 2004 consent order, was repeatedly ordered to pay A.R.'s college tuition , and unilaterally closed A.R.'s college fund account. A ccordingly, we affirm the awarding of attorneys' fees to Roden and the denial of attorneys' fees to defendant. To the extent we have not specifically discussed an y remaining arguments raised by Mistretta, we conclude they lack sufficie nt merit to warrant discussion in a written opinion. R. 2:11 -3(e)(1)(E). Affirmed.