SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-2979-21 

ALLISON RODEN, 

 Plaintiff-Respondent, 

v.

GREGG MISTRETTA, 

 Defendant-Appellant. 

________________________

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-04-1925-17.

The Marks Law Group, LLC, attorneys for appellant 

(Erika Rene Marks, on the briefs). 

Stockton Family Law, LLC, attorneys for respondent 

(Kathleen Pasquarello Stockton and Jessica Ann

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NOT FOR PUBLICATION WITHOUT THE 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 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.
2 A-2979-21

Defendant Gregg Mistretta appeals from an April 20, 2022 Family Part 

order denying his motion to terminate 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 attorneys' 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 from the parties, the parties' 

daughter, and Mistretta's business partner, Brian Lourenco. 

The parties were never married, but have a daughter, A.R., who was born 

in 2002. Each party is currently married with children; Roden has one teenager 

and Mistretta has three young children. 

On 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 modified in September 2016, 

and child support was reduced to $1,350 per month. 

1

 The consent order is dated May 17, 2004; however, the 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. 
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The consent order also addressed the parties' obligations 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 respective ability to pay for 

college. A.R. was to incur student loans in the event the college fund was 

"insufficient" to cover the full cost of college. 

On 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 college account for A.R. The 

order expressly provided that "[p]ursuant to the June 22, 2004 consent order, 

each parent [was] required by August 31, 2020 to have 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 recalculated upon A.R.'s

graduation from high school. 

Although both 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 multiple occasions that he and Roden had 
4 A-2979-21

saved $60,000 each for college and that she would be responsible for any costs 

greater than $114,000. Mistretta claimed that he did 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 application for federal student aid 

application process nor was he privy to any financial 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 Mistretta of her choice. She also 

stated that she received federal grants and loans and worked while in college. 

Mistretta timely paid his child support obligations prior to A.R.'s 

graduation from high school. Following A.R.'s graduation in June 2020, 

Mistretta, then self-represented, moved to terminate child support and 

emancipate A.R. He believed that his child support "payments were due to stop 

when [A.R.] [was] emancipated." The record shows after the filing of that

application, their father-daughter relationship fractured. 

Mistretta claimed that he had experienced "financial distress" related to 

the COVID-19 pandemic. He testified that he was self-employed and his 

entertainment business – a "DJ business and nightclub styled venue" were 
5 A-2979-21

reduced to "almost zero money" due to "mass cancellations" related to the

pandemic. Mistretta also owned a commercial building that housed 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 business 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 in unemployment benefits in 

2020 and continued to receive them in 2021. 

Mistretta also received $200,000 in paycheck protection 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 business, totaling $300,000 that 

had to be paid back. Lourenco corroborated Mistretta's testimony that the 

companies suffered financial distress during the pandemic 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 had saved only $5,000. 

Mistretta believed A.R. was not entitled to the entirety of the $61,000 that was 
6 A-2979-21

previously held in her college savings account because that money belonged to 

all his children. Mistretta testified using all of the college fund solely on A.R.'s 

education because she chose to attend a more expensive 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 from A.R.'s college fund 

account into the other children's college fund totaling $100,000. 

Five months later, Mistretta, represented by counsel, again moved to 

terminate child support, and requested that his college contribution be deemed 

sufficient to support A.R. Roden cross-moved, seeking Mistretta's cooperation 

with the forensic accountant she had retained, requiring payment of A.R.'s 

spring 2021 college tuition, and requiring the return of funds Mistretta removed 

from A.R.'s college fund account. Mistretta was ordered to pay A.R.'s Spring 

2021 tuition without prejudice. 

Four additional orders followed in January, July, September, and October 

2021. In each instance except for July, the court required Mistretta to pay A.R.'s 

college tuition. 

Roden testified that she and Mistretta had agreed in 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 Mistretta 
7 A-2979-21

declined to share A.R.'s high school tuition expenses, Roden testified that she 

spent $35,000 towards A.R.'s private high school tuition, limiting her ability to 

save for A.R.'s college education. However, she promised 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 accountant, 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 $160,896; and in 2020, his 

gross income was $94,711 and net income was $77,683. The forensic 

accountant noted that the pandemic "significantly impacted" 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 material level." 

Following the plenary hearing, the court rendered an oral decision, which 

summarized its findings of facts and reasoning. The court rejected Mistretta's 

argument that his estrangement from A.R. and the trial court's citation to 

Newburgh v. Arrigo, 88 N.J. 529 (1982) in the July 15, 2020 order required the 

application of the Newburgh factors. The court noted 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 and just." 
8 A-2979-21

The court found the Newburgh factors did not apply because Mistretta had 

agreed to contribute towards A.R.'s education in the parties' 2016 consent order 

and was involved throughout A.R's college selection process. The trial court 

further determined Mistretta's Newburgh argument was "disingenuous" because 

both parties envisioned paying for A.R.'s college tuition as evinced in the 2016 

consent order. The court found Mistretta had the money, "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 account was done in "bad faith" 

and "really [out of] spite." 

Nevertheless, the court addressed each Newburgh factors, finding the 

parties had an expectation that A.R. would attend college 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 that he was unaware of A.R.'s 

higher education pursuits. A.R.'s commitment and aptitude for higher 

education, along with her conversations with Mistretta, established a reasonable 
9 A-2979-21

expectation that she would attend college and knew how much her parents had 

saved for college. Further, A.R. informed Mistretta 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 child's required financial support 

lessens because the child attends college. The court noted that despite 

explaining that legal principle to Mistretta on numerous 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 attended 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 expenses 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 college 

expenses. 

After considering the relevant law and statutes, the court then computed 

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 determined 
10 A-2979-21

A.R's expenses totaled $2,485 per month and apportioned 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 attorneys' 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 lacked good faith throughout the 

litigation. Based on Roden's submissions, Mistretta was ordered to pay $16,450 

of her attorney's fees. 

II. 

On appeal, Mistretta presents three arguments. First, 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 court 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. Cesare v. Cesare, 154 N.J. 

394, 411 (1998). Appellate courts accord the trial court's factual findings after 
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a bench trial substantial deference when "'supported by adequate, substantial, 

credible evidence' in the record." Landers v. Landers, 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 discretion, failed to consider 

controlling legal principles or made findings inconsistent 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 award 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 trial 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 (quoting 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.'" Slutsky, 451 N.J. Super. at 344-45 

(quoting Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)). 

A.
12 A-2979-21

 New Jersey's legislature and courts "have long recognized 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 delineated in Newburgh when 

evaluating a claim for contribution towards the cost 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 should 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, expressly and unambiguously bound 

the parties to contribute $57,000 towards A.R.'s college 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 applicable, based on Mistretta's involvement in the college 

process, conversations with A.R. concerning her college fund, and his 

certification that he had the funds when he filed his first application to 
13 A-2979-21

emancipate A.R. The court found Mistretta not credible, and we discern no error 

in that finding. 

Even if Newburgh was applicable, the court found Mistretta did not 

present credible evidence of an inequity or a substantial change in circumstances 

which would relieve him from his obligation to contribute towards A.R.'s 

college expenses and shifting the sole responsibility 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, and determined the children 

did not demonstrate a change in circumstances sufficient to require a 

modification of his child support. We also add that based on the record, 

Mistretta has a "reasonable and fairly balanced plan" as shown by the college 

funds established for each of his three young children. 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 reasonable amount of time to continue 

to contribute toward their college funds in preparation for 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 enforcing the 2016 consent order and 
14 A-2979-21

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 

considered A.R.'s unverified expenses and incorrectly charged him for offcampus housing when he paid for campus room and board. 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 contribution 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 obligation will decrease because 

the child is attending college. Jacoby, 427 N.J. Super. 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 the 
15 A-2979-21

amount of support, courts should evaluate the parties' circumstances based on 

the factors in N.J.S.A. 2A:34-23a, as well as the child's continued need for a 

local residence during school breaks and between semesters and other "costs 

associated with supporting a college experience." Id. at 121-22.

Here, the record shows the trial court mistakenly applied the statute and 

corresponding legal principles in reviewing A.R.'s expenses as a college student 

and found most of the expenses to be reasonable. In contrast, the court correctly 

found gas, restaurants, vacations, and entertainment expenses to be 

unreasonable, and therefore should be paid by A.R. Second, Mistretta has not 

offered evidence showing that A.R.'s needs have lessened since attending 

college. Lastly, even at the peak of the pandemic, Mistretta earned more than 

Roden, had monthly expenses of over $20,000 per month, and retained over 

$200,000 in various savings and retirement accounts. We, however, conclude 

the trial court mistakenly included A.R's $750 monthly rent for her apartment 

and her $75 in monthly food expenses in the court's child support calculation. 

Although the 2004 and 2016 consent orders did not allocate college expenses, 

"[t]he typical college expenses associated with college attendance include 

tuition, registration fees, lab costs, housing, board, books, and computer costs." 

Jacoby, 427 N. J. Super. at 121. Therefore, we reverse the provision of the April 
16 A-2979-21

20, 2022 order, and remand to the Family Part for further analysis consistent 

with those governing principles. 

C.

Under Rule 4:42-9(a)(1), attorney's fees are allowable "[i]n a family 

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 . . . claims 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 tuition obligations. We 

agree. As we have discussed, Mistretta routinely refused 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. Accordingly, 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 any remaining arguments 

raised by Mistretta, we conclude they lack sufficient merit to warrant discussion 

in a written opinion. R. 2:11-3(e)(1)(E). 

Affirmed.