SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5288-16T3

DONNALEE GILLEN,

Plaintiff-Respondent,

v.

SHAHAB BINA,

Defendant-Appellant.

_______________________________

Submitted October 31, 2018 – Decided

Before Judges Alvarez and Mawla.

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Monmouth County, 

Docket No. FM-13-0321-99.

Paras, Apy & Reiss, PC, attorneys for appellant (Elissa 

A. Perkins and Bonnie M.S. Reiss, of counsel and on 

the briefs).

Law Office of Timothy F. McGoughran, LLC, 

attorneys for respondent (Sarah Martynowski and 

Timothy F. McGoughran, of counsel and 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NOT FOR PUBLICATION WITHOUT THE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.

November 27, 2018
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Defendant Shahab Bina appeals from a June 23, 2017 order granting in 

part his motion to compel plaintiff Donnalee Gillen to contribute to their 

children's college expenses. We affirm in part, and reverse and remand in part 

for the motion judge to conduct a plenary hearing regarding college contribution 

beginning from January 2015. 

The following facts are taken from the motion record. The parties were 

married in January 1993. Two children were born from the marriage, who are 

presently twenty-three and twenty-four years of age. A judgment of divorce was 

entered on March 22, 1999, which incorporated a property settlement agreement 

(PSA) signed beforehand. Pursuant to the PSA, the parties agreed to joint legal 

custody of the children with plaintiff designated as the parent of primary 

residence. The PSA also memorialized the parties' agreement requiring each to 

contribute to the children's college expenses based on an ability to pay. 

Both parties graduated as doctors of chiropractic medicine from New York 

Chiropractic College. Each is a licensed chiropractor in New Jersey. Plaintiff 

was a practicing chiropractor from 1998 to 2000. She then began to work parttime in other fields, including massage therapy. In 2000, defendant remarried 

and moved to Villanova, Pennsylvania where he operates his own chiropractic 

practice. 
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In 2001, plaintiff moved into a Wall Township home owned by her mother 

because she could no longer afford to live in the former marital residence. The 

children sought to live with defendant. On September 11, 2009, the court

entered an order temporarily transferring custody to defendant and scheduling a 

plenary hearing on the modification of custody. As part of this post-judgment 

proceeding, plaintiff's counsel prepared a proposed consent order, which was 

signed by plaintiff and her attorney, but never signed by defendant, his counsel, 

or entered by the court. However, on October 11, 2010, the court entered a 

consent order memorializing the transfer of custody to defendant and 

terminating his child support obligation. 

In 2011, the parties' older son began the college application process. 

Plaintiff and defendant communicated regarding prospective schools, the pros 

and cons of each, and the costs of attendance. The parties' son was accepted to 

several schools, however, only New York University (NYU) was willing to 

recruit him for its golf team. At a family meeting in April 2012, plaintiff 

suggested the parties' son attend a college in New Jersey because she could not 

afford the NYU tuition. Plaintiff also sent defendant an email on April 27, 2012,

expressing her disapproval because the parties' son would need to take loans to 

meet the tuition. Plaintiff's email made clear she had not committed to pay any 
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amount for college and had not agreed to either child attending an expensive 

school. She also stated she would not incur more debt than she already had,

would not agree to debts incurred on behalf of the children for college in the 

future, and did not agree the children should take on large amounts of debt to 

obtain a college degree. 

Notwithstanding, the parties' older son commenced at NYU in September 

2012. Defendant certified he and his wife unilaterally paid $67,760 for tuition,

room, and board. The older son was diagnosed with Lyme disease during the 

fall semester of his sophomore year, which required him to take medical leave 

for the remainder of the semester and return to live with defendant. Defendant 

and his wife incurred a $27,515 loan to pay for the fall 2013 semester tuition. 

The older son was also diagnosed with bio-toxin illness, manifesting as severe 

reactions to mold exposure due to the existence of mold in defendant's home. 

His illness required remediation of defendant's home. Defendant lacked the 

funds to pay for the mold remediation. Therefore, he reduced his work hours 

and performed the remediation himself. 

The older son's illnesses kept him out of school until the spring semester

of 2014. Instead of returning to NYU, defendant and his wife paid $34,900 in 

tuition for the older son to attend a college-accredited experiential program. The 
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parties' son eventually returned to college on a full-time basis during the spring 

2016 semester, this time enrolling in Elon University. The record reflects 

defendant and his wife paid $22,569, and also incurred parent loans totaling 

$38,866, to fund three semesters of schooling at Elon. Defendant certified the 

costs for the senior year at Elon would be $45,000. 

The parties' younger son decided to attend Wake Forest University 

because he was offered a spot on its Division I golf team. He began at Wake 

Forest in September 2013, but only spent three semesters there because his 

grades did not meet the standards to remain in the golf program as a studentathlete. Defendant and his wife paid $29,920, and incurred loans totaling 

$53,498, for three semesters of schooling at Wake Forest. 

The parties' younger son returned to live with defendant, and worked fulltime. He also enrolled in two classes costing $4400, which were paid for by 

defendant and his wife. He then began attending Elon University in the 2015 

fall semester. The younger son spent four semesters at Elon, for which

defendant and his wife paid $49,366 and incurred loans totaling $38,866. 

As we noted, plaintiff had moved from the former marital residence for 

financial reasons, and into a home owned by her mother. She certified her

chiropractic license lapsed in August 2009, because she could not afford the 
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fees. Plaintiff's mother, who resided in Beaver Falls, Pennsylvania, was 

diagnosed with Alzheimer's in 2009, and colon cancer in 2011. During this time, 

plaintiff regularly commuted from her home in Wall to care for her mother, who 

eventually passed away in January 2016. In addition to caring for her mother, 

plaintiff was diagnosed with bladder cancer in March 2015. 

Plaintiff certified she was unable to support herself during this period 

because she was caring for her mother, and was dealing with her own illness. 

However, plaintiff inherited her mother's home in Wall, and her 2017 case 

information statement (CIS) noted she also received an inheritance totaling 

$382,482.61 in September 2016. 

In January 2014, defendant's wife, who had been the primary breadwinner

for the family, experienced serious health problems. In March 2014, defendant 

and his wife were in an automobile accident, which left him unable to work for 

three months. His 2014 tax return reflected total gross revenue from his 

chiropractic practice of $28,153. 

Given the circumstances, on January 28, 2015, defendant sent plaintiff an 

email asking her to contribute one-third of the children's future college expenses. 

Defendant stated he and his wife would "absorb all of the money" they had spent 

to date without seeking a contribution from plaintiff if she agreed to contribute 
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to college moving forward. Plaintiff responded by stating: "I am in no position 

to pay or take out loans." Defendant sent emails on March 11, March 26, and 

April 29, 2015, seeking clarification of plaintiff's response, but she did not 

respond.

On July 29, 2015, defendant's counsel sent plaintiff a letter informing her 

defendant could no longer afford to pay the children's college expenses and 

seeking her contribution for the remaining semesters. The parties attended 

mediation in June 2016, without success. As a result, on February 28, 2017, 

defendant filed a motion to compel plaintiff's contribution to college. 

On June 23, 2017, the motion judge entered an order granting in part, and 

denying in part, defendant's motion. The judge ordered plaintiff to be

responsible for thirty-five percent of the older son's final year of school after he 

applied for all existing loans, scholarships, and any available financial 

assistance. The judge denied defendant's request to compel plaintiff's 

retroactive contribution to the children's education and defendant's request to 

impute an income of $127,000 to plaintiff. 

Although the judge's decision began with an analysis of the factors in 

Newburgh v. Arrigo, 88 N.J. 529 (1982), he stated "while the court reviewed 

those factors, this case [fell] upon an agreement between the parties." 
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Specifically, the judge found the unsigned consent order, dated January 5, 2010,

constituted a binding agreement between the parties because they had adhered 

to its terms. Pursuant to the consent order, the judge concluded plaintiff was 

not required to contribute to the children's college expenses which had been 

incurred. However, because the PSA contemplated both parties would 

contribute to college, the judge reasoned plaintiff should be responsible for 

thirty-five percent of the older son's final year of schooling because she had the 

ability to pay from her inheritance. This appeal followed. 

I.

"When reviewing a trial judge's order, we defer to 

factual findings 'supported by adequate, substantial, 

credible evidence.'" . . . However, reversal is warranted 

when the expressed factual findings are "so manifestly 

unsupported by or inconsistent with the competent, 

relevant and reasonably credible evidence as to offend 

the interests of justice." . . . 

Discretionary determinations, supported by the record, 

are examined to discern whether an abuse of reasoned 

discretion has occurred. . . .

While an "abuse of discretion . . . defies precise 

definition," we will not reverse the decision absent a 

finding the judge's decision "rested on an impermissible 

basis," considered "irrelevant or inappropriate factors," 

. . . "failed to consider controlling legal principles or 

made findings inconsistent with or unsupported by 

competent evidence." . . . 
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This court does not accord the same deference to a trial 

judge's legal determinations. . . . Rather, all legal issues 

are reviewed de novo. 

[Ricci v. Ricci, 448 N.J. Super. 546, 564-65 (App. Div. 

2017) (citations omitted).]

On appeal, defendant argues the motion judge erred as follows: (1) relying 

upon the unsigned draft consent order to find a contract in contravention of 

N.J.R.E. 408; (2) failing to hold a plenary hearing, given the material disputes

in fact, before finding defendant had waived a contribution to college; (3) failing 

to consider plaintiff's receipt of the inheritance and the downturn in his fortunes 

constituted a changed circumstance requiring a re-evaluation of the college 

contribution; (4) misapplying the Newburgh factors and failing to explain how 

he determined plaintiff's thirty-five percent share of the college expenses; (5)

considering a memorandum of understanding from the parties' mediation in 

violation of the mediation privilege; and (6) failing to impute an income to 

plaintiff. 

II.

We first address the motion judge's finding that the 2010 unsigned 

proposed consent order was an enforceable agreement. As we noted, plaintiff's 

counsel prepared a proposed consent order, which was signed by plaintiff and 
10 A-5288-16T3

her counsel, but not signed by defendant, his counsel, or the court. The proposed 

consent order addressed many issues, and, as to college, stated:

[A]ll issues relative to the children's college education 

shall abide the event; except that [plaintiff] and 

[defendant] agree to cooperate in filling out and timely 

submitting any FAFSA federal or other financial aid 

forms to facilitate the college application and financial 

aid process. Such cooperation does not bind [plaintiff] 

to any specific financial contribution. Should 

[defendant] elect to be responsible for all costs incident 

to the children's college education, then there shall be 

no requirement that he consult with [plaintiff] or that 

the parties reach mutual agreement on such issues.

The motion judge concluded these terms were binding because the parties 

had adhered to other aspects of the unsigned consent order. Specifically, he 

found the parties had "followed the parenting time schedule, the transportation 

arrangement, the provisions regarding the children's expenses, and [d]efendant's 

child support was terminated pursuant to the agreement." The judge also relied 

on defendant's email to plaintiff, dated January 28, 2015, stating he and his wife 

were "willing to absorb all of the money" they had spent to date, and the July 

29, 2015 letter from defendant's counsel to plaintiff seeking her contribution for 

the remaining semesters. The motion judge reasoned "the latter confirms the 

former and both confirm the understanding [d]efendant would assume the costs 

alone as outlined in the January 2010 proposed order." 
11 A-5288-16T3

We have long recognized the "basic contractual nature" of matrimonial 

agreements. Harrington v. Harrington, 281 N.J. Super. 39, 46 (App. Div. 1995). 

"[T]o be enforceable, matrimonial agreements . . . need not necessarily be

reduced to writing or placed on the record." Ibid. However, there must be an 

agreement. Ibid. Although "not every factual dispute that arises in the context 

of matrimonial proceedings triggers the need for a plenary hearing. . . . [W]e

have repeatedly emphasized that trial judges cannot resolve material factual 

disputes upon conflicting affidavits and certifications." Id. at 47 (internal 

citation omitted).

Here, the parties dispute whether they intended to be bound by the 

unsigned consent order. However, we need not reach this issue or defendant's 

arguments under N.J.R.E. 408, because we agree in part with the judge's 

conclusions defendant had waived, to a limited extent, a contribution to the 

expenses he had paid for the children's college education. 

Although the judge invoked principles of equity, such as laches and 

equitable estoppel, the record readily demonstrates the applicability of the 

related doctrine of waiver. The Supreme Court has stated: 

An effective waiver requires a party to have full 

knowledge of his legal rights and intent to surrender 

those rights. The intent to waive need not be stated 

expressly, provided the circumstances clearly show that 
12 A-5288-16T3

the party knew of the right and then abandoned it, either 

by design or indifference. 

[Knorr v. Smeal, 178 N.J. 169, 177 (2003) (citations

omitted).]

Defendant's January 28, 2015 email to plaintiff, in pertinent part, stated:

I am writing to [you] regarding your parental 

contribution to our sons['] education expenses.

In the spring of 2012 you, [my wife], [your aunt] and I 

met with the boys to discuss funding for their college. 

In that meeting you said you were not in any position 

to pay for your share of college expenses. I asked you 

if you would pay for your share when you had better 

finances and [were] working and you said "yes, of 

course[."] I am assuming that your situation is very 

different today than [three] years ago and I am reaching 

out to you again to ask you to pay for your share of the 

boys['] college expenses.

. . . .

We are willing to absorb all of the money we have spent 

to date without asking you to repay us anything.

Moving ahead, I am asking you to pay your share of 

college expenses for your sons. While you and I should 

be sharing these expenses [fifty-fifty], [my wife] has 

offered to pay [one-third], therefore, [my wife] and I 

will pay [two-thirds] and we are only asking you to help 

pay for the other [one-third]. I need to emphasize that 

it is very unusual for a step parent to have made 

personal sacrifices to provide such financial 

contributions and continue to be generous and offer to 

pay [one-third] of our sons['] educational expenses.
13 A-5288-16T3

. . . .

If you do not have access to the funds, the FAFSA form 

is easy to fill out online and your financial information 

will not be visible to us or anybody else for that matter. 

It is really our intent to do our best to resolve this in an 

amicable manner and I hope you feel the same.

Plaintiff responded to this email by stating: "I am in no position to pay or take 

out loans." 

In a July 29, 2015 letter from defendant's counsel to plaintiff, counsel 

stated:

As you know, to date your former husband . . . 

has paid all the college expenses for your sons[.] . . . As 

a result of medical issues which have severely affected 

his practice and his income, in addition to unexpected 

expenses for your sons, he is no longer able to absorb 

the college costs without assistance from you. 

According to the laws of our state both parents have an 

obligation to contribute to the college costs for their 

children.

If, going forward, you are prepared to share all 

costs of tuition, room, board, books, electronics, dorm 

set up, supplies and transportation to and from school 

equally, [defendant] will not seek any reimbursement 

for past expenses.

[Defendant] would like to resolve this issue 

expeditiously and without requiring that you disclose 

your assets and income or engage in costly 

litigation. . . .
14 A-5288-16T3

Defendant's counsel also sent a letter to plaintiff on October 8, 2015, 

which noted that: "By letter dated July 29, 2015 I contacted you and advised you 

that, due to medical issues that have impacted his practice, [defendant] can no 

longer shoulder all support and college expenses on his own. I note that there 

is no order requiring him to do so." Defendant's counsel again sent a letter on 

February 1, 2016, stating:

As you may recall I forwarded letters to you on July 29 

and October 8 . . . urging you to either suggest or 

propose a mediator for the purpose of discussing the 

sharing of college expenses for [the children]. You did 

not respond to either of those letters.

Out of consideration for you, [defendant] instructed me 

not to file a motion during your mother's illness. 

However, at this point he can wait no longer to resolve

this matter . . . .

Plaintiff replied to this letter on February 12, 2016, stating:

I am in receipt of your letters of July 29, 2015, October 

8, 2015, and February 1, 2016. In your letter of July 

29, 2015 you . . . threaten that I must pay fifty percent 

of all costs of tuition, room, board, books, electronics, 

dorm set up, supplies and transportation to and from 

school or you will charge me past expenses and also 

have threatened to litigate. Is that true? If so, what is 

the purpose of mediation?

Defendant's counsel replied to plaintiff's letter on February 17, 2016, stating: 

"Your reading of my letter as threatening is simply incorrect. [Defendant] 
15 A-5288-16T3

sought mediation both because he wants to resolve the sharing of expenses fairly 

and amicably and because you and [defendant] agreed to attempt mediation 

before approaching the court." 

Given this context, we agree with the motion judge's reasoning defendant 

did not seek a contribution to the funds expended for college prior to January 

28, 2015. The emails defendant's counsel exchanged with plaintiff demonstrated 

defendant was aware of his right to seek a contribution from plaintiff, but 

"absorbed" the expense of college for the children and only pursued plaintiff's 

contribution after he and his wife experienced an adverse change in 

circumstances. For these reasons, we affirm the judge's finding defendant was 

barred from seeking contribution to the college expenses he had paid as of 

January 28, 2015. 

III.

Defendant argues his change in circumstances warranted a review of the 

college contribution, the motion judge misapplied the Newburgh factors and did 

not explain how he determined plaintiff's thirty-five percent share of the 

expense, and failed to impute an income to plaintiff. We agree.
16 A-5288-16T3

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 

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.

Here, the motion judge acknowledged there were changed circumstances 

warranting a review of the parties' college obligation, namely, the downturn in 

defendant's financial circumstances and plaintiff's receipt of an inheritance from 

her mother. Defendant argues the judge misapplied Newburgh factors one, two, 

five, seven, eleven, and twelve, although his brief does not address these factors 
17 A-5288-16T3

with specificity. However, defendant specifically addresses the judge's findings 

regarding plaintiff's ability to pay. Defendant also claims the judge ignored 

plaintiff's "mortgage-free home, as well as the fact that she did not pay child 

support, and that she lived rent-free for fifteen years[,]" and asserts it was error 

for the judge to conclude plaintiff was excluded from the college selection 

process pursuant to Gac v. Gac, 186 N.J. 535 (2006). 

Child support is a right belonging to the child, which cannot be waived. 

See Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993). 

Regardless, we do not reach the claim relating to plaintiff's non-payment of child 

support because defendant did not seek it in the intervening years when the 

children moved into his home, and we can discern no concomitant savings on 

the part of plaintiff as a result of having no child support obligation. 

Newburgh factor eleven requires the trial court to assess "the child's 

relationship to the paying parent, including mutual affection and shared goals as 

well as responsiveness to parental advice and guidance." 88 N.J. at 545. In Gac, 

the Supreme Court addressed the issue of whether a parent who had been 

estranged by a child and the custodial parent should be required to contribute to 

the child's college obligation and declined to compel the non-custodial parent's 

contribution to college under such circumstances. 186 N.J. at 548.
18 A-5288-16T3

Here the motion judge made two seemingly conflicting findings on the 

issue of the parent-child relationship for college contribution purposes. 

Addressing Newburgh factor eleven, the judge stated: "There is no indication 

[p]laintiff does not have a relationship with the children or they have rebuked 

her advice and guidance." However, later in the judge's opinion, he concluded 

[p]laintiff had no input of influence on the children's 

choice of higher education and any comment she made 

was brushed aside. There is also no evidence she was 

involved in the college selection process for the 

younger child from the start of his college inquiry in the 

[f]all of 2012. 

Notwithstanding these findings, the motion judge compelled a 

contribution from plaintiff. Because we have affirmed the judge's decision that 

defendant was barred from seeking a contribution to the college expense prior 

to January 28, 2015, the judge's findings as they relate to Gac need not be 

revisited. However, the parties have a material dispute regarding whether 

plaintiff was excluded from the college selection process. Therefore, on remand, 

and following a plenary hearing, the judge should clarify his findings regarding 

factor eleven and explain how they impact plaintiff's obligation to contribute to 

the college expense. 
19 A-5288-16T3

Defendant argues the motion judge erred when he did not impute an 

income to plaintiff based on her professional training and education. On this 

issue, the motion judge reasoned as follows:

Plaintiff argues she does not have the ability to pay for 

the children's college expenses. She certifies she has 

no current income in her [CIS]. Plaintiff was a 

registered chiropractor at one point but certifies she did 

not renew her license since 2009. The New Jersey 

Bureau of Labor indicates an average salary of 

$123,000 for licensed chiropractors. She attended 

nursing school but certifies she did not take her 

NCLEX.1 The New Jersey Bureau of Labor indicates 

an average salary of $80,000 for registered nurses.

Plaintiff does not practice in either field [d]efendant 

references. Further she has put forth good reason for 

her inability to obtain employment in those positions 

and an extensive absence from such professions. It is 

unreasonable to expect, or impose, an average earning 

capacity in a particular profession upon someone who 

could only begin working in that profession comparable 

to an entry level professional.

Plaintiff has maintained she does not have the financial 

ability to contribute towards the children's college 

expenses, and certifies she made [d]efendant aware of 

that on numerous occasions. However, the court will 

note that even assuming [p]laintiff earned those 

amounts, the request for approximately $200,000 is 

excessive and well beyond the ability of a person 

earning those amounts to pay.

 

1 The National Council Licensure Examination is a nationwide examination for 

the licensing of nurses.
20 A-5288-16T3

Defendant argues [p]laintiff should be imputed a 

particular income in determining her ability to pay.

Defendant cites various case law that supports the 

imputation of income for determination of child 

support. However, even assuming plaintiff had the 

ability to earn the income [d]efendant argues should be 

imputed to her, there is an inherent difference between 

child support and college contributions. The former is 

controlled by a parents earning capacity, but the latter 

is controlled by the parent's actual ability at the time of 

the requested payment. While financial support of a 

child is a parental obligation, contribution toward 

college costs is not; hence the different legal standards 

and analysis applied by the court. Every child has the 

right to a basic financial support from both parents, but 

there is no right to a college education funded by a 

parent. Thus, a parent can only be forced to pay that 

which they are capable and the court is not controlled 

by theoretical abilities. 

We disagree with the judge's conclusion that considerations regarding a 

parent's ability to pay child support and college are dissimilar. "'Imputation of 

income is a discretionary matter not capable of precise or exact determination[,] 

but rather requir[es] a trial judge to realistically appraise capacity to earn and 

job availability.'" Elrom v. Elrom, 439 N.J. Super. 424, 434 (App. Div. 2015)

(citations omitted). In Elrom, we noted the authority to impute income 

is incorporated in the New Jersey Child Support 

Guidelines (Guidelines). See R. 5:6A (adopting 

Guidelines set forth in Appendix IX-A to the Court 

Rules). The Guidelines state:
21 A-5288-16T3

[i]f the court finds that either parent is, without just 

cause, voluntarily underemployed or unemployed, it 

shall impute income to that parent according to the 

following priorities:

a. impute income based on potential 

employment and earning capacity using the 

parent's work history, occupational 

qualifications, educational background, 

and prevailing job opportunities in the 

region. The court may impute income 

based on the parent's former income at that 

person's usual or former occupation or the 

average earnings for that occupation as 

reported by the New Jersey Department of 

Labor (NJDOL);

b. if potential earnings cannot be 

determined, impute income based on the 

parent's most recent wage or benefit record 

. . . .

[Elrom, 439 N.J. Super. at 435 (alteration in original) 

(quoting Child Support Guidelines, Pressler & 

Verniero, Current N.J. Court Rules, comment 12 on 

Appendix IX-A to R. 5:6A at 2635 (2015)).]

Additionally:

In determining whether income should be imputed to a 

parent and the amount of such income, the court should 

consider: (1) what the employment status and earning 

capacity of that parent would have been if the family 

had remained intact or would have formed, (2) the 

reason and intent for the voluntary underemployment 

or unemployment, (3) the availability of other assets 

that may be used to pay support, and (4) the ages of any 

children in the parent's household and child-care 
22 A-5288-16T3

alternatives. . . . When imputing income to a parent who 

is caring for young children, the parent's income share 

of child-care costs necessary to allow that person to 

work outside the home shall be deducted from the 

imputed income.

[Id. at 439 (quoting Child Support Guidelines Pressler 

& Verniero, Current N.J. Court Rules, comment 12 on 

Appendix IX-A to R. 5:6A at 2635).]

Notably, we applied the imputation rubric to disputes unrelated to child support 

when we stated: "These legal precepts equally apply when establishing a party's 

obligation to pay alimony." Id. at 435-36.

We have previously noted "there is a close relationship between college 

cost and support[.]" Jacoby v. Jacoby, 427 N.J. Super. 109, 122 (App. Div. 

2012). Indeed, "'[r]esolution of [the right to continued educational support] 

centers on a parent's duty to support a child until the child is emancipated. 

Consequently, [the child], if unemancipated, may be entitled' to continued 

support." Ricci, 448 N.J. Super. at 580 (alteration in original) (quoting 

Newburgh, 88 N.J. at 542).

Therefore, although the motion judge was ultimately free to reject 

$200,000, and instead impute no income to plaintiff, he should have employed 

the guideline factors when he considered defendant's imputation request. 

Furthermore, by conducting a plenary hearing on this disputed issue, the motion 
23 A-5288-16T3

judge would have testimony to enable him to follow the guideline factors, and 

would have explained: whether plaintiff was voluntarily unemployed; her 

earnings history; the entry level earnings for plaintiff in the nursing or 

chiropractic fields, and if plaintiff could achieve those earnings. For these 

reasons, we remand the determination for further findings on the imputation 

issue. 

Most importantly, although the judge addressed the Newburgh factors, we 

have no means of understanding how he arrived at a thirty-five percent 

contribution for plaintiff's share of the college expense. The judge's findings 

lack an assessment of the parties' income, needs, and expenses to enable us to

gauge whether the percentage contribution ordered by the judge was supported 

by adequate credible evidence of an ability to fund the college expenses through 

the use of income, assets, credit, or a combination of resources. 

The judge's assessment of Newburgh factor six, the financial resources of 

both parents, was as follows:

Defendant claims to have no income pursuant to his 

[CIS], [p]laintiff provided same and her resources are 

further outlined in [p]aragraph [four]2above. Although 

[d]efendant claims no income of note, his [CIS] 

identified monthly expenses of almost $35,000. In light 

 

2 Although the judge stated he was referencing Newburgh factor three, we 

believe he intended factor four, which addresses the parents' ability to pay.
24 A-5288-16T3

of his nominal income, extensive monthly expenses and 

lack of significant assets, he must be supported by his 

now wife. Although she has no financial obligation to 

the children, the court may consider the extent of his 

income or resources that become available—or are 

"freed up"—due to the support he obtains from his wife. 

The judge's findings accept the validity of defendant's expenses without a 

critical analysis or explanation of how defendant could justify such expenses,

given the overall financial downturn experienced by defendant and his wife. The 

findings also lack a description of plaintiff's expenses, defendant's earning 

capacity, and what income or resources could be "freed up" to fund college. 

Although we appreciate the judge's effort to address the Newburgh factors

without a hearing, many of these questions as well as the judge's ability to arrive 

at a record-based percentage for each parent, required one. Indeed,

"[m]eaningful appellate review is inhibited unless the judge sets forth the 

reasons for his or her opinion. In the absence of reasons, [the court is] left to 

conjecture as to what the judge may have had in mind." Salch v. Salch, 240 N.J. 

Super. 441, 443 (App. Div. 1990). 

Furthermore, because our decision has expanded the time period of 

college expenses for which plaintiff may be held responsible, this may operate 

to substantially decrease the percentage of plaintiff's contribution depending on 

her ability to pay and overall financial capabilities, despite defendant's claims 
25 A-5288-16T3

relating to plaintiff's rent/mortgage-free living circumstances and inheritance. 

For these reasons, we reverse and remand for a plenary hearing pursuant to 

Newburgh to determine whether, and to what extent, plaintiff shall be required 

to contribute to the children's college expenses as of January 28, 2015. 

IV.

Finally, we reject defendant's argument the motion judge's discussion of 

a confidential memorandum of understanding resulting from the parties' failed 

mediation constituted reversible error. As we noted, the parties engaged in 

mediation before the motion practice, which generated an unsigned draft 

memorandum of understanding prepared by the mediator. In the part of the 

motion judge's opinion addressing the parties' contentions, the judge noted

plaintiff had submitted "a [m]emorandum . . . as part of a mediation that states 

[p]laintiff does not have an obligation towards the children's past college-related 

expenses in light of her financial situation at the time." 

The Supreme Court has stated: "Communications made during the course 

of a mediation are generally privileged and therefore inadmissible in another 

proceeding." Willingboro Mall, Ltd. v. 240/242 Franklin Ave., L.L.C., 215 N.J. 

242, 245 (2013). A mediation communication is defined as any "statement, 

whether verbal or nonverbal or in a record, that occurs during a mediation or is 
26 A-5288-16T3

made for purposes of considering, conducting, participating in, initiating, 

continuing, or reconvening a mediation or retaining a mediator." Id. at 255 

(quoting N.J.S.A. 2A:23C-2). The privilege does not apply where there is a 

signed settlement agreement or where there is an express waiver of the privilege 

by the mediator and the parties. Id. at 257-58.

Generally, reversible error must be clearly capable of producing an unjust 

result. State v. Castagna, 187 N.J. 293, 312 (2006) (internal citations and 

quotations omitted). 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 [factfinder] to a result it otherwise might not have reached." Id. at 336.

Here, it was improper for plaintiff to submit the unsigned memorandum 

as a part of the motion pleadings. However, it was not reversible error for the 

motion judge to reference the document, where he merely noted plaintiff's claim 

and did not rely on the document to render his decision. Therefore, the error 

was harmless. 

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

proceedings in accordance with this opinion. We do not retain jurisdiction.