NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1832-14T1 A-2409-14T1

MAURA RICCI, n/k/a MAURA MCGARVEY,

Plaintiff-Appellant/ Cross-Respondent, APPROVED FOR PUBLICATION v. February 9, 2017 MICHAEL RICCI, APPELLATE DIVISION Defendant-Respondent,

and

CAITLYN RICCI,

Intervenor-Respondent/ Cross-Appellant. _____________________________________

MAURA RICCI, n/k/a MAURA MCGARVEY

Plaintiff-Respondent,

v.

MICHAEL RICCI,

Defendant-Appellant,

and

CAITLYN RICCI,

Intervener-Respondent. _____________________________________

Submitted November 3, 2016 - Decided February 9, 2017 Before Judges Lihotz, Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-0239-98.

Petersen & Martone, attorneys for appellant/ cross-respondent (Kelli M. Martone, on the briefs).

Morgenstern & Rochester, LLP, attorneys for respondent/cross-appellant (Andrew L. Rochester, on the brief).

Smithbridge, LLP, attorneys for appellant Michael Ricci in A-2409-14, join in the brief of appellant/cross-respondent Maura Ricci in A-1832-14.

The opinion of the court was delivered by

LIHOTZ, P.J.A.D.

More than thirty years have passed since the Supreme Court

issued Newburgh v. Arrigo,

(1982), which held "the

privilege of parenthood carries with it the duty to assure a

necessary education for children."

. Necessary

support for unemancipated children could include contribution

toward the cost of a college education, even though the child

has attained the age of majority.

. Since then,

courts have struggled to define the scope of this parental

obligation, as circumscribed by facts and circumstances unique

to each family. In this case, we examine the court's role in

navigating the interplay between emancipation and a parent's

2 A-1832-14T1 obligation to provide for a child's support in the form of

college tuition, when the child has left the parent's home.

Plaintiff Maura McGarvey appeals from several Family Part

orders mandating she and defendant Michael Ricci, plaintiff's

former husband, contribute to the college tuition expenses of

intervenor, their now twenty-three-year-old daughter, Caitlyn

Ricci. Plaintiff and defendant agreed Caitlyn was emancipated

when she left her mother's home to reside with her grandparents

at age nineteen. Plaintiff and defendant filed a consent order

terminating child support. Thereafter, Caitlyn moved to

intervene in the matrimonial matter, seeking to vacate the

emancipation order and require her parents to provide funds

allowing her to attend college. In the October 11, 2013 order,

the judge permitted Caitlyn to intervene and required plaintiff

and defendant to pay the tuition cost for Gloucester County

Community College (the community college), which was less than

$2,000.

Prior to completing her associate's degree, Caitlyn

transferred to Temple University, in Philadelphia, Pennsylvania

(the university). She moved for plaintiff and defendant to pay

annual tuition for the university, which, after awarded

financial aid, was significantly more than the tuition at the

community college. On October 31, 2014, a newly assigned judge

3 A-1832-14T1 considered Caitlyn's motion. He concluded the issue was

adjudicated and governed by the October 11, 2013 order.

Accordingly, without benefit of a plenary hearing or review of

financial documentation, the newly assigned judge "enforced" the

October 11 order and required plaintiff and defendant satisfy

the university's outstanding tuition, fees, and the cost of

books.

Plaintiff and defendant sought reconsideration and were

assigned to return to the initial motion judge. Unfortunately,

he limited his review to the provisions of the first order, not

the October 31, 2014 order. Thus, the judge declined to examine

whether and to what extent plaintiff and defendant could and

should pay tuition to the university. He noted Caitlyn did not

discuss attending the university in her October 2013 motion,

revealing only plans to attend a state university once she

earned her associate's degree. In the December 6, 2014 order,

the judge considered the factors identified in Newburgh, as to

the request plaintiff and defendant satisfy community college

tuition. There was no discussion regarding payment for the

university. In that regard, the judge declined to reconsider

the order to pay the university tuition set forth in the October

31, 2014 order.

4 A-1832-14T1 Plaintiff appeals from the October 11, 2013, October 31,

2014 and December 6, 2014 orders. Defendant also appeals from

these orders. The matters were consolidated and we granted

defendant's motion to join in and rely on the brief submitted by

plaintiff. Caitlyn filed a cross-appeal, challenging plaintiff's

attack on the October 11, 2013 order and argued the denial of

her request for attorney's fees in the October 31, 2014 and

December 6, 2014 orders was error.

Following our review, we conclude the judge properly

allowed Caitlyn to intervene in this action to advance her

request for support. However, the record is void of the basis

establishing Caitlyn was unemancipated at the time of the

October 11, 2013 review. As more thoroughly discussed in our

opinion, emancipation is a legal determination, which must be

resolved prior to awarding support, including payment of college

costs. Because this analysis is absent, we reverse and vacate

the provisions of the challenged order addressed to emancipation

and payment of support. We remand this matter for plenary

review.

I.

These facts are found in the record. Plaintiff and

defendant were divorced when Caitlyn was four years old.

Plaintiff was the parent of primary residence, defendant

5 A-1832-14T1 exercised regular parenting time and provided child support.

The record reflects the parents shared decision-making

responsibility regarding Caitlyn's care.

Caitlyn graduated from high school in June 2012. Various

actions resulted in the conclusion Caitlyn was not ready to live

away at college. With her parents' urging and support, Caitlyn

enrolled part-time in the community college. However,

estrangement with her parents heightened, and Caitlyn left her

mother's home in February 2013, to reside with her paternal

grandparents. Plaintiff and defendant agreed Caitlyn was

emancipated. This decision was memorialized in a March 30, 2013

consent order terminating defendant's obligation to pay child

support.

Legal action followed as Caitlyn moved to intervene in her

parents' dissolution action. She sought to vacate the March 30,

2013 order of emancipation, compel payment of her full-time

community college education costs, provide financial assistance

to acquire a new car, continue her health insurance coverage,

and pay counsel fees and costs. Plaintiff and defendant

objected to the relief Caitlyn requested. Specifically, both

parents challenged Caitlyn's request to intervene and asserted

her conduct demonstrated her desire to be independent of

parental control, which obviated any obligation for support.

6 A-1832-14T1 In an accompanying certification, Caitlyn briefly mentions

the family dynamics, stating, "substantial personal problems

. . . necessitated that I move out of my mother's home . . . .

I did not fit in well with her new family." She also stated "I

. . . had substantial problems with my father's new family[,]

and thus he was not an option."

Plaintiff and defendant's pleadings cast a different light

on the parent-child relationship. Both parents expressed their

love for Caitlyn and a willingness to address issues as a

family; however, plaintiff and defendant separately opposed

Caitlyn's motion based on her conduct and choices. Their

certifications detail the difficulties experienced with

Caitlyn's dangerous decisions and disobedience, which started

while she was in high school. Caitlyn's conduct included

smoking marijuana while driving, engaging in underage drinking

and sexual activity, participating in explicit sexual

conversations on the internet, and attempting to hurt herself.

Plaintiff explained she attempted to counsel her daughter,

who nevertheless did not obey her requests, expressed dislike

for imposed rules, and chose to leave her home. Plaintiff

asserted Caitlyn "willingly, knowingly, [and] voluntarily left

and went [out] on her own."

7 A-1832-14T1 Defendant discussed his view of Caitlyn's trouble with

alcohol, drugs, and impulsive behavior, as well as her acts of

opposition to plaintiff's imposition of discipline, including a

curfew and the obligation to perform household chores.

Defendant related his efforts to discuss these concerns with

Caitlyn, which she repeatedly rebuffed. He stated Caitlyn

refused to answer her parents' texts or calls prior to filing

her motion. Caitlyn had not spoken to either parent for six

months; she ignored birthdays, a family member's illness, and

mother and father's day. Finally, defendant pointedly objected

to Caitlyn's decision to reside with his parents, showing

unequivocally he was estranged from them and blamed them for

exacerbating parental relationship difficulties with Caitlyn.

The record also informed regarding Caitlyn's college

decisions. These facts are undisputed. When she was accepted

to attend Montclair State University, plaintiff and defendant

discussed contributing $5,000 each towards annual college costs,

with the remainder satisfied by Caitlyn obtaining student loans.

However, because of Caitlyn's behavior, it was agreed she was

not ready to live away from home, and should first attend

community college. Defendant paid the summer and fall 2012

community college tuition, and Caitlyn attended part-time. In

the winter of 2012, Caitlyn sought to attend the Disney College

8 A-1832-14T1 program in Florida. Plaintiff and defendant jointly agreed to

support Caitlyn's effort as a way of testing her readiness to

live on her own. They fully paid for her participation and

assisted her move to Florida. Unfortunately, within a month of

arriving, Caitlyn was expelled for underage alcohol use as the

host of a party in the dorms.

The parties disagreed on events occurring after Caitlyn

returned from Florida. Plaintiff and defendant wanted Caitlyn

to return to community college to compete her associate's

degree. With defendant's support, plaintiff outlined a course

of discipline, work, and community college courses demanded of

her daughter. Plaintiff recounted how Caitlyn rejected these

attempts to restore discipline and make-up missed college

credits, stating she wanted instead to spend the summer with

friends. Plaintiff asserted Caitlyn indulged in what she

labeled frivolous spending, inappropriate use of Facebook, and

multiple nights spent away from home. Plaintiff initiated

counselling, but Caitlyn attended only one session and refused

to continue. Caitlyn then decided to move to her grandparents'

home where she was not restricted.

Caitlyn's version expressed a different story. Caitlyn

maintained she did not "run to her grandparents in defiance";

rather, plaintiff "kicked [her] out" when she returned from

9 A-1832-14T1 Disney. Alternatively, Caitlyn attributed the move to her

grandparents as her parents' "suggestion." Further, she

characterized the behavior outlined by her parents as "things

that teenagers typically do" and insisted the control exerted by

her parents' demands was "impossible." Caitlyn asserted she was

following the college path her parents dictated and accepted all

conditions imposed, except the demand to work full-time and take

three summer classes. She insisted the imposed unrealistic

demands pushed her beyond the sphere of parental influence.

Caitlyn initiated litigation only after plaintiff and

defendant separately informed her they would not pay her

community college costs because she was not residing with either

of them. Caitlyn asserted she was a full-time community college

student and, upon completion of her associate's degree, planned

to attend Rowan University. Pay stubs reflected Caitlyn grossed

more than $400 per week waitressing.

During oral argument, in response to plaintiff's suggested

request for a plenary hearing to determine whether Caitlyn was

unemancipated, the Family Part judge stated:

Well, there may be a time in a future year that you need a plenary hearing, but based on the cost of the college for this year, I really think that would be overkill and I feel that the [c]ourt would have enough based upon the excellent briefs and the certifications that were submitted that I could make a decision today.

10 A-1832-14T1 Defendant's counsel asked whether the order was intended to

address just the current community college tuition request or

possible future costs at a four-year school. The judge answered

"I don't think I can do that."

The judge granted Caitlyn's motion to intervene.

Describing the matter as a "unique situation," he deemed Caitlyn

"un-emancipated [sic] solely for the purpose of a potential

contribution from [her parents] as it relates to college costs."

In rendering his order, the judge rendered his order, stating he

sought "to make the best economic decision[,]" and limited the

order's provisions to payment of community college costs for the

2013-2014 school year. He ordered Caitlyn to seek and apply for

loans and scholarships to reduce expenses. Caitlyn represented

she had done so and was awarded $2,500. Noting financial

information was not in the record, the judge stated plaintiff

and defendant were to split remaining "costs related to . . .

tuition, fees and books."

Also, the order stated:

4. For subsequent school years, before determining . . . [p]laintiff and [d]efendant's contribution to Caitlyn's tuition, fees and book costs, Caitlyn shall apply for all eligible loans and apply all eligible scholarships toward her tuition, fees, and book[] costs.

11 A-1832-14T1 5. On future matriculation (beginning the [f]all of 2014), the [p]laintiff and [d]efendant shall exchange tax returns and the three (3) most recent paystubs in regards to determining a child support percentage for each party. This child support percentage breakdown will determine the amount that the parties will pay towards Caitlyn's college tuition and books[,] after Caitlyn has obtained all financial aid, grants, and scholarships.

. . . .

9. For future academic years, all parties will attend economic mediation if they cannot agree to Caitlyn's college tuition, fees, and books.

The order denied Caitlyn's request for contribution toward

the purchase of a new car and found plaintiff always maintained

health insurance coverage for Caitlyn, making the request moot.

Finally, "in a compensatory manner," the judge awarded Caitlyn

$1,000 in counsel fees and costs, payable $500 by each parent,

which "shall come off the parties' contribution towards

Caitlyn's college costs for tuition, fees and books for the

2013-[20]14 academic year."

Caitlyn was accepted to attend the university, commencing

in the fall 2014. She notified plaintiff she was leaving

community college and requested plaintiff complete the Free

Application for Federal Student Aid (FAFSA). Plaintiff agreed

to do so but suggested Caitlyn first obtain her associate's

12 A-1832-14T1 degree, noting she and defendant could not afford the

university's tuition cost.

Caitlyn filed a motion to enforce litigant's rights,

seeking an order compelling plaintiff and defendant to attend

economic mediation to fix their respective contributions toward

the university's tuition, fee and book costs and to reimburse

past community college costs.

Caitlyn stated the university's financial aid evaluation

"was calculated as if there would be no parenting [sic]

contribution." Total aid reduced the $27,000 annual tuition and

fees by $19,180 per year, of which $14,000 represented student

loans. Caitlyn believed it reasonable to incur only federally

subsidized student loans, limiting her debt to $5,500.

Consequently, she required plaintiff and defendant to allocate

the remaining $17,000 per year. Thereafter, Caitlyn met with

the university's Senior Assistant Director of Student Financial

Services. When Caitlyn explained she was "unemancipated" for

college expense purposes, the university rescinded the financial

aid package and required one parent complete the FAFSA.

Plaintiff opposed Caitlyn's motion; defendant did not file

pleadings but appeared. The case was assigned to a different

Family Part judge. The judge ordered the parties comply with

the October 11, 2013 order's prerequisite for economic

13 A-1832-14T1 mediation. His September 10, 2014 order also required they

exchange financial information for the purposes of mediation,

and plaintiff agreed to complete the FAFSA parental disclosure.

The parties identified a mediator, and the session occurred in

early October 2014.1 Mediation was not successful.

Returning to the newly assigned motion judge, Caitlyn

asserted her revised financial aid award was $9,250 per year.

She applied for three of four additional loans suggested by

plaintiff, but the lenders required co-signors. Caitlyn argued

the October 11, 2013 order directed plaintiff and defendant to

allocate the university tuition and requested an order directing

them to split the cost equally. Plaintiff and defendant opposed

this request, asserting the order was limited to 2013-2014

community college tuition and left open other college costs.

Further, the parents maintained the judge never considered

payment of the university's tuition, which they agreed they

could not afford.

The newly assigned motion judge viewed plaintiff and

defendant's request not as a change in circumstances, but as a

request for reconsideration of the October 11, 2013 order. He

concluded reconsideration was not properly before him and must

1 Plaintiff's brief states mediation was held on October 2, while Caitlyn and plaintiff's pleadings identify mediation was held on October 9.

14 A-1832-14T1 be handled by the initial motion judge. Enforcing his

interpretation of that order's provisions, he ordered plaintiff

and defendant to satisfy the university tuition 40% and 60%

respectively. The October 31, 2014 order also scheduled a

plenary hearing to decide reimbursement of community college

costs and ordered the parties to mediate any modification

requests or future disputes. Finally, the judge denied

Caitlyn's application for attorney's fees.

Plaintiff and defendant moved for reconsideration of the

October 31, 2014 order. Both argued the order was unfounded, as

Caitlyn unilaterally left plaintiff's home; refused to

compromise her demands or return home; transferred to an

expensive out-of-state university; abandoned completion of

community college or attending Rowan. Moreover, Caitlyn refused

to communicate with her parents and continued to act

independently, without regard to parental input. Finally, the

court never reviewed whether and to what extent plaintiff and

defendant should or could pay for any expenses beyond community

college tuition.

Caitlyn opposed the motions and filed a cross-motion for

counsel fees. She additionally filed a separate motion seeking

an order of contempt, sanctions, and enforcement of litigant's

rights. Disposition was returned to the original motion judge.

15 A-1832-14T1 Concluding the October 11, 2013 order was interlocutory,

the judge limited his review to reconsideration of that order

and declined to reconsider challenges to the October 31, 2014

order, stating "for today, I can't address that." The judge

agreed to clarify Caitlyn's obligation to apply for "all

eligible loans . . . and all eligible scholarships." In his

oral opinion, he explained Caitlyn must attempt to apply for and

make a reasonable effort to secure "five or six" scholarships.

He then reviewed each provision of the October 11, 2013 order

and concluded the requirement to pay community college tuition

was "de minimis." The judge ordered plaintiff and defendant to

equally satisfy the claimed balance of $906 and rejected

Caitlyn's request for attorney's fees.

This court consolidated plaintiff's appeal and Caitlyn's

cross-appeal. Defendant joins in the brief submitted by plaintiff.

II.

A.

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

findings 'supported by adequate, substantial, credible

evidence.'" Spangenberg v. Kolakowski,

(App. Div. 2015) (quoting Gnall v. Gnall,

(2015)). However, reversal is warranted when the expressed

factual findings are "so manifestly unsupported by or

16 A-1832-14T1 inconsistent with the competent, relevant and reasonably

credible evidence as to offend the interests of justice." Elrom

v. Elrom,

(App. Div. 2015) (quoting

Rova Farms Resort, Inc. v. Investors Ins. Co. of Am.,

(1974)).

Discretionary determinations, supported by the record, are

examined to discern whether an abuse of reasoned discretion has

occurred. Gac v. Gac,

(2006).

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," Flagg v. Essex Cnty. Prosecutor,

(2002) (citations . . . omitted), "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)].

[Elrom, supra,

.] This court does not accord the same deference to a trial

judge's legal determinations. Reese v. Weis,

(App. Div. 2013). Rather, all legal issues are

reviewed de novo.

B.

As a preliminary matter, we examine Caitlyn's cross-appeal

urging dismissal of plaintiff's attack on the October 11, 2013

order as time barred. R. 2:4-1(a) (requiring appeals be filed

17 A-1832-14T1 within forty-five days of the date final judgment or order is

entered). "Where the appeal is untimely, the Appellate Division

has no jurisdiction to decide the merits of the appeal." In re

Hill,

(App. Div. 1990) (citing Alberti

v. Civil Service Comm'n,

(1963)).

"Generally, an order is considered final if it disposes of

all issues as to all parties." Silviera-Francisco v. Bd. of

Educ. of City of Elizabeth,

(2016). "By

definition, an order that 'does not finally determine a cause of

action but only decides some intervening matter pertaining to

the cause[,] and which requires further steps . . . to enable

the court to adjudicate the cause on the merits[,]' is

interlocutory." Moon v. Warren Haven Nursing Home,

(2005) (alterations in original) (quoting Black's Law

Dictionary 815 (6th ed. 1990)).

The distinction between a final order, appealable of right,

and an interlocutory order, which is not, is a "principle . . .

easily stated," but "not always easily applied." Wein v.

Morris,

(2008). The distinction is critical

because finality is a jurisdictional prerequisite for appeal, R.

2:2-3, and neither the parties nor the trial judge "may invest

the Appellate Division with jurisdiction it does not otherwise

18 A-1832-14T1 have." Pressler & Verniero, Current N.J. Court Rules, cmt.

2.2.1 on R. 2:2-3 (2017).

Without consideration of the legal sufficiency of its

terms, we note the October 11, 2013 order answered the question

of whether Caitlyn could intervene in her parents' matrimonial

action, imposed a limited provision regarding Caitlyn's

emancipation, and fixed parental obligations for the 2013-2014

community college tuition costs. The order's terms also

addressed "future matriculation" and "subsequent school years,"

imposing executory obligations on all parties. Had the order

resolved all issues regarding Caitlyn's post-secondary school

education, it would have been final. However, its terms, as

well as the judge's remarks on the provisions, show no final

decision was made fixing the extent of the parental support

beyond the 2013-2014 community college tuition costs.

The language used in paragraphs four and five of the order

set procedures, laying the preliminary groundwork necessary to

review allocation of future college costs. However, contrary to

Caitlyn's assertion, which was erroneously adopted in the

October 30, 2014 order, the issue was never finally adjudicated.

For example, paragraph four expressed a need for additional

review, reciting Caitlyn's obligations undertaken "before

determining the [p]laintiff and [d]efendant's contribution" for

19 A-1832-14T1 subsequent school years. In addition, paragraph nine mentioned

future academic years and imposed an economic mediation

prerequisite, which further demonstrates said issues were open.

Moreover, during the October 11, 2013 hearing, the judge

remarked he had not reviewed financial information and ordered

payment shared because the amount was "de minimis." During the

December 8, 2014 hearing, the judge clarified there were no

prior discussions addressed to payment for the university or

another college; the issues were limited to community college.2

We conclude the October 11, 2013 order resolved

intervention and dealt with the immediate community college

tuition. The order settled only the interim issue and did not

resolve all college contribution requests or finalize all rights

and responsibilities of the parties by finally adjudicating the

merits of all issues raised in the action. See Adams v. Adams,

(App. Div.), certif. denied,

(1959).

Once the proceeding concluded on December 8, 2014, with the

denial of reconsideration of the October 11, 2013 order and

rejection of reconsideration of the October 31, 2014 order, the

2 We recognize remarks by the initial judge in entering the order suggest the October 11, 2013 order's requirements for modest payment amount appeared directed to deescalate this family's growing alienation and sought to prompt healing of their emotional turmoil.

20 A-1832-14T1 obligation for college contributions became final for purposes

of appeal. Accordingly, plaintiff's appeal properly sought

review of all orders leading to the final determination. See

Sutter v. Horizon Blue Cross Blue Shield of N.J.,

(App. Div. 2009) ("'An appeal from a final

judgment raises the validity of all interlocutory orders'

previously entered in the trial court." (quoting In re Carton,

(1966))).

III.

For the first time, plaintiff argues the challenged orders

must be vacated because the Family Part has interfered with her

constitutional right to raise her daughter.

"[I]t is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest."

[Zaman v. Felton,

(2014) (quoting State v. Robinson,

(2009))].

See also Pressler & Verniero, supra, cmt. 3 on R. 2:6-2.

Because we conclude clarification of the law is necessary, we

have elected to address the merits of this argument.

Plaintiff's constitutional challenge maintains the court

may not interfere with a joint parental decision to set

21 A-1832-14T1 discipline and achievement requirements for Caitlyn. Caitlyn

argues no constitutional violation arises. She urges the court

properly enforced her right to support and her right to be

educated, and suggests the controversy is only about money.

These arguments speak to "the intersection between parents'

fundamental liberty interest in the care, custody, and control

of their children, and the state's interest in the protection of

those children." Fawzy v. Fawzy,

(2009).

A.

Unquestionably, "[t]he right to rear one's children is so

deeply embedded in our history and culture that it has been

identified as a fundamental liberty interest protected by the

Due Process Clause of the Fourteenth Amendment to the United

States Constitution."

at 473 (quoting Moriarty v. Bradt,

(2003), cert. denied,

,

,

(2004)). "The Federal and State

Constitutions protect the inviolability of the family unit." In

re Adoption of a Child by W.P. & M.P.,

(App. Div. 1998) (citing Stanley v. Illinois,

,

,

(1972),

vacated on other grounds,

(2000). Therefore,

"[p]arents have a constitutionally protected, fundamental

liberty interest in raising their biological children."

at

22 A-1832-14T1 382 (citing Santosky v. Kramer,

,

,

(1982)). See also Wisconsin

v. Yoder,

,

,

(1972) (explaining the "primary role" of parents

in raising their children is "an enduring American tradition"

and establishing the historic recognition of that right as

fundamental); Prince v. Massachusetts,

,

,

(1944) (identifying privacy

interest attached to child rearing, labeled the "private realm

of family life which the state cannot enter"); Meyer v.

Nebraska,

,

,

(1923) (characterizing parental right to raise children

"as essential to the orderly pursuit of happiness by free men").

As our Supreme Court has stated:

Deference to parental autonomy means that the State does not second-guess parental decision making or interfere with the shared opinion of parents regarding how a child should be raised. Nor does it impose its own notion of a child's best interests on a family. Rather, the State permits to stand unchallenged parental judgments that it might not have made or that could be characterized as unwise. That is because parental autonomy includes the "freedom to decide wrongly."

[Fawzy, supra,

-74 (quoting Janet Maleson Spencer & Joseph P. Zammit, Mediation-Arbitration: A Proposal for Private Resolution of Disputes Between

23 A-1832-14T1 Divorced or Separated Parents,

, 913 (1976)).]

See also Sacharow v. Sacharow,

(2003) (holding

the Due Process Clause of the Fourteenth Amendment of the United

States Constitution "encompasses [the] 'fundamental right of

parents to make decisions concerning the care, custody, and

control of their own children.'" (quoting Troxel v. Granville,

,

,

(2000))).

Legislation has been enacted to address and protect the

parent-child relationship. Specifically, N.J.S.A. 9:17-39

states a "'parent and child' relationship means the legal

relationship between a child and the child's . . . parents . . .

to which the law confers or imposes rights, privileges, duties,

and obligations." These rights, privileges, duties, and

obligations extend to both parents "equally . . . regardless of

marital status." N.J.S.A. 9:17-40.

B.

One duty imposed by law requires parents provide financial

support for their children. "The parental obligation to support

children until they are emancipated is fundamental to a sound

society." Kiken v. Kiken,

(1997). See

N.J.S.A. 9:17-53(c) (imposing an obligation to provide child

support to those against whom parentage is established).

24 A-1832-14T1 "In an intact family, the law assumes the parents will

provide for the children as well as they can."

. Payment of "[c]hild support after divorce is

necessary to ensure that a child's basic needs are provided by

his parents, who might otherwise neglect their responsibilities

to maintain the child." Pascale v. Pascale,

(1995). See N.J.S.A. 2A:34-23(a) (authorizing courts to

establish or modify child support in pending matrimonial

actions).

The Court has repeatedly emphasized "[c]hildren of divorce

have the right to be supported at least according to the

standard of living to which they had grown accustomed prior to

the separation of their parents."

(citations omitted). To that end, various principles have

evolved.

First, "[o]ne of the fundamental concepts in American society is that parents are expected to support their children until they are emancipated, regardless of whether the children live with one, both, or neither parent." Burns v. Edwards,

(App. Div. 2004) (citing Dunbar v. Dunbar,

,

,

(1903)); see also Cumberland Cnty. Bd. of Soc. Servs. v. W.J.P.,

(App. Div. 2000) (noting that "[a]t common law, parents had an absolute duty to support their children"). The obligation to provide child support "is engrained into our common law,

25 A-1832-14T1 statutory, and rule-based jurisprudence."

.

Second, "it is settled that the best interests of the child [are] the greatest and overriding consideration in any family court matter." Monmouth Cnty. Div. of Soc. Servs. v. G.D.M.,

(Ch. Div. 1997) (citing Wilke v. Culp,

(App. Div. 1984)). Accordingly, enforcing the parental duty to support children is "an inherent part of the 'best interests of the child' rubric which underlies our family courts."

Accordingly, "a parent is obliged to contribute to the basic support needs of an unemancipated child to the extent of the parent's financial ability[.]" Martinetti v. Hickman,

(App. Div. 1992). . . . "[C]hildren are entitled to be supported at least according to the standard of living to which they had grown accustomed prior to the separation of their parents," and the "talisman of concern is always the welfare of the child." Guglielmo v. Guglielmo,

(App. Div. 1992).

Third, it is also firmly established that child support is for the benefit of the children; therefore, the right to receive support belongs to the children, not the custodial parent.

; Patetta v. Patetta,

(App. Div. 2003); L.V. v. R.S.,

, 41 (App. Div. 2001); Blum v. Ader,

(App. Div. 1994).

[Colca v. Anson,

(App. Div. 2010).]

The Legislature granted "equitable powers" to the Family

Part, which allows the court to enter, revise or alter support

26 A-1832-14T1 orders "from time to time as circumstances may require."

N.J.S.A. 2A:34-23).

Although parental disagreement is most often heightened in

divorce matters, the event of divorce is not the basis of the

court's authority. Rather, the State's parens patriae

responsibility to protect the rights of children is the source

of its authority. Importantly, a child's right to support is

not "defeated merely because both parents are united in their

determination to declare the child emancipated." Johnson v.

Bradbury,

(App. Div. 1989).

However, the court's authority to impose support

obligations is circumscribed: it terminates with a child's

emancipation.

; Martinetti,

supra,

. "Where there is no longer a duty

of support by virtue of a judicial declaration of emancipation,

no child support can become due." Mahoney v. Pennell,

(App. Div. 1995).

A determination of emancipation is a legal issue, imposed

when the fundamental dependent relationship between parent and

child ends. See Dolce v. Dolce,

(App.

Div. 2006) (stating emancipation is "the conclusion of the

fundamental dependent relationship between parent and child").

It is not automatic and "need not occur at any particular age

27 A-1832-14T1 . . . ."

. When circumstances

surrounding the parent-child relationship support a finding the

child is emancipated, "the parent relinquishes the right to

custody and is relieved of the burden of support, and the child

is no longer entitled to support." Filippone v. Lee,

(App. Div. 1997).

Deciding whether a child is emancipated requires a fact-

sensitive analysis.

. "[T]he

essential inquiry is whether the child has moved 'beyond the

sphere of influence and responsibility exercised by a parent and

obtains an independent status of his or her own.'"

(quoting Bishop v. Bishop,

(Ch. Div. 1995)). A court's emancipation

"determination involves a critical evaluation of the prevailing

circumstances including the child's need, interests, and

independent resources, the family's reasonable expectations, and

the parties' financial ability, among other things."

(citing

).

A parent establishes "prima facie, but not conclusive,

proof of emancipation" when a child reaches the age of majority,

now eighteen. Id. at 17. See also N.J.S.A. 9:17B-3. Once the

presumption arises, the burden of proof to rebut the statutory

28 A-1832-14T1 presumption of emancipation shifts to the party or child seeking

to continue the support obligation.

.

"In certain situations, parents still have an economic duty

to support children after their eighteenth birthday . . . ."

Llewelyn v. Shewchuk,

(App. Div. 2015)

(quoting N.J. Div. of Youth & Family Services v. W.F.,

(App. Div.) (quoting

), certif. denied,

(2014)). "[W]hile parents

are not generally required to support a child over eighteen, his

or her enrollment in a full-time educational program has been

held to require continued support." Patetta v. Patetta,

(App. Div. 2003). See also

; Khalaf v. Khalaf,

(1971).

"[I]n appropriate circumstances, the privilege of parenthood

carries with it the duty to assure a necessary education for

children."

. In this regard,

college costs are recognized as a form of support for

unemancipated children. See

("The

Legislature and our courts have long recognized a child's need

for higher education and that this need is a proper

consideration in determining a parent's child support

obligation.");

("N.J.S.A. 2A:34-

29 A-1832-14T1 23(a) authorizes courts to enter reasonable and equitable

support orders, including orders for the education of

children.").

Prior to addressing whether parental support is required

for a child who reaches majority, the pivotal question is

whether the child remains unemancipated. If so, the next

consideration is whether the child has an aptitude for college.

"Newburgh does not require . . . support and concomitant

deferred emancipation for a child unable to perform adequately

in his [or her] academic program."

. If each of these questions is affirmatively

answered, then parental ability to afford the significant cost

of college must be examined; it is not presumed.

Some parents cannot pay, some can pay in part, and still others can pay the entire cost of higher education for their children. In general, financially capable parents should contribute to the higher education of children who are qualified students. In appropriate circumstances, parental responsibility includes the duty to assure children of a college and even of a postgraduate education such as law school.

[Newburgh, supra,

.]

To aid this determination, the Court in Newburgh provides

specific factors guiding the analysis of whether and to what

extent an obligation to pay for higher education is imposed.

. The Newburgh factors

30 A-1832-14T1 must be carefully applied by the trial court in light of a wide range of relevant facts and circumstances. The undertaking cannot be accomplished except after a presentation of all the evidence through direct and cross-examination and until the trial court has had an opportunity to observe the demeanor of the witnesses. The issue . . . implicates "highly significant policy considerations," and for this reason should not be decided on less than a full record.

[Bradbury, supra,

-37 (quoting Jackson v. Muhlenburg Hosp.,

(1969)).]

"It remains the ultimate responsibility of the judiciary to

address the fact[-]sensitive issue of emancipation when

presented."

. As we have

recently advised: "The critical evaluation required for

emancipation determinations typically necessitates a plenary

hearing, especially 'when the submissions show there is a

genuine and substantial factual dispute[,]' which the trial

court must resolve."

(quoting Hand v. Hand,

(App. Div.

2007)). So too, the examination of parental obligations to

provide college contributions for unemancipated children

requires a hearing.

.

C.

Applying these principles to the facts at hand, we reject

plaintiff's challenge attacking the order allowing Caitlyn to

31 A-1832-14T1 intervene. We conclude the judge correctly determined Caitlyn

had standing to do so.

;

. See also Pressler &

Verniero, supra, cmt. 1 on R. 4:33-1 (requiring a party moving

to intervene must "show an interest in the subject matter of the

litigation, an inability to protect that interest without

intervention, lack of adequate representation of that interest,

and timeliness of the application"). Caitlyn has an interest in

advancing the position she is unemancipated and in need of her

parents' support.

However, plaintiff's challenge to the conclusion Caitlyn

was unemancipated must be considered. Here, the October 11,

2013 order and hearing record are void of factual findings

supporting such a legal conclusion. Following our review, we

are unable to determine how or why the judge concluded to vacate

the prior order of emancipation.

Rule 1:7-4(a) requires a judge, "by an opinion or

memorandum decision, either written or oral, find the facts and

state [all] conclusions of law . . . on every motion decided by

a written order that is appealable as of right . . . ." Fodero

v. Fodero,

(App. Div. 2002). We

emphasize a judge's failure to perform the fact-finding duty

"constitutes a disservice to the litigants, the attorneys and

32 A-1832-14T1 the appellate court." Curtis v. Finneran,

(1980) (quoting Kenwood Assocs. v. Bd. of Adjustment Englewood,

(App. Div. 1976)).

In opposing Caitlyn's motion, plaintiff and defendant

asserted Caitlyn, by her own actions and decisions, was

emancipated. The certifications accompanying the motion papers

include quite divergent statements on this single issue. Not

only is there a material dispute about why Caitlyn left

plaintiff's home and did not seek residence with defendant, but

also at issue is whether Caitlyn diligently pursued her

secondary school education, whether she was a full-time student,

and whether Caitlyn affirmatively rejected efforts undertaken to

exercise reasonable parental influence to require she act

responsibly.

Plaintiff and defendant emphatically rejected the narrative

they "secretly" sought emancipation to avoid financial

responsibility. Rather, plaintiff and defendant maintain

Caitlyn frivolously squandered their emotional and financial

efforts because she desired to do what she wanted, without

parental oversight. They argue Caitlyn rejected their authority

to strike out on her own, sealing her emancipated status.

On the other hand, Caitlyn asserts she "made some mistakes"

but was dutiful and reasonably compliant. However, her parents

33 A-1832-14T1 continued to impose "impossible" requisites, in a joint effort

to thwart her efforts by foreclosing financial assistance.

It appears the initial motion judge recognized plaintiff

and defendant's prior provision of educational support to allow

Caitlyn's attendance at community and Disney college. He may

have assumed Caitlyn remained dependent and, therefore, was

unemancipated. The judge's comments also suggest a desire to

save the parties time and money by avoiding a plenary hearing on

the subject, perhaps believing payment of the relatively small

sum in controversy might mitigate fractures caused in the family

and reunite the parties.

Despite these very well intentioned purposes, the threshold

legal question of emancipation, which must precede any Newburgh

analysis, was not examined. Plaintiff and defendant advanced

facts showing Caitlyn, who was well over the age of eighteen,

rejected parental guidance and advice, because they were

accompanied by strings related to discipline and performance.

Caitlyn does not deny she committed the complained of conduct or

that her actions triggered parental demands for reform. Rather,

she dismisses her behavior as "things that teenagers typically

do," tempered by an admission she made some mistakes.

Whether Caitlyn's actions were irresponsible, as plaintiff

and defendant suggest, or youthful, as Caitlyn insists, begs the

34 A-1832-14T1 question. What is required is an examination of events that

triggered Caitlyn's departure from her mother's home and the

resultant March 30, 2013 order of emancipation. The fact that

Caitlyn is not living with either parent is significant. How

that event occurred bears heavily on whether Caitlyn exercised

"an independent status of . . . her own" and became emancipated.

.

Caitlyn's subsequent decisions and interactions with her

parents also bears on this issue. The dependent parent-child

relationship indicative of unemancipation is not merely shown by

a child's claimed need for financial support. Our jurisprudence

unmistakably mandates there must be examination of the parent-

child relationship itself.

. In fact, a better description is the relationship is one

of interdependence: the child's right to support and the

parents' obligation to provide payment are inextricably linked

to the child's acceptance and the parents' measured exercise of

guidance and influence. Conversely, a finding of emancipation

is a recognition of a child's independence from a parental

influence.

Despite the detail of events and the expressed strength of

conviction, the positions of the parties' in their pleadings are

at odds, and the legal conclusion Caitlyn is unemancipated

35 A-1832-14T1 cannot be upheld. Such "material factual disputes presented by

the parties' pleadings bear directly on the legal conclusions

required to be made and these disputes can only be resolved

through a plenary hearing."

. See

(stating a

plenary hearing is necessary when the parties' submissions show

a genuine and substantial factual dispute). The parties are

entitled to present their proofs and the judge must sift through

the evidence and state the supported factual findings.

Importantly, "[t]he credibility of the parties' contentions may

wither, or may be fortified, by exposure to cross-examination

and through clarifying questions posed by the court[]" in a

plenary hearing. Barblock v. Barblock,

(App. Div.), cert. denied,

(2006). See also Segal

v. Lynch,

(2012) (holding a "genuine,

material and legitimate factual dispute" requires resolution

following a plenary hearing).

If her parents' prove their claims, Caitlyn's choices have

consequences: a child is free to control his or her life;

however, this course relieves her parents of the obligation to

finance such self-determined decisions. See Black v. Black,

(Ch. Div. 2013) ("If an adult 'child'

refuses to have a relationship with a parent without a clear

36 A-1832-14T1 showing of exceptional circumstances, and . . . refuses to

participate in trying to heal the relationship, . . . the

child's message rings loud and clear . . . the parent/child

relationship no longer has any value."). If the evidence

sustains Caitlyn's version of events that her parents "threw"

her out despite her rigorous compliance with their "impossible"

demands, the court must protect the child's right to financial

support.

We also correct what appears to be a misinterpretation of

the law. We focus on the declaration Caitlyn was "un-

emancipated [sic] solely for the purpose of a potential

contribution from [her parents] as it relates to college costs."

A child's decision to seriously pursue a college education

alone does not create the required dependency allowing him or

her to be unemancipated. In Filippone, this court concluded the

parties' son, who left home at age fourteen, was not emancipated

until he reached the age of majority and, thereafter,

unsuccessfully completed college classes.

. In Llewelyn, we affirmed the Family Part's

finding the plaintiff-child failed to rebut the presumption of

emancipation, when she decided to leave her mother's home,

despite her later pursuit of education as a full-time college

student.

.

37 A-1832-14T1 Thus, facts matter, and the judge must fully analyze all

circumstances that separated Caitlyn from her parents and their

homes. It is insufficient to merely review Caitlyn's decisions

and her parents' financial status at the time Caitlyn filed her

motion. An independent child choosing her own path is not

entitled to support because support is due only to a child who

is not emancipated.

.

For the reasons stated, we affirm the order allowing

Caitlyn to intervene. We reverse, as factually unsupported, the

provisions in the October 11, 2013 order concluding Caitlyn is

unemancipated and plaintiff and defendant must provide college

contributions. On these issues, the October 11, 2013 order is

vacated, and the matter remanded for further proceedings,

including a plenary hearing. See Tretola v. Tretola,

(App. Div. 2006) (reversing a court's denial of

the plaintiff-father's request to emancipate his son because the

court "failed to recognize there were material facts in dispute

and evidence beyond the motion papers necessary for resolution

of the matter" following an evidentiary hearing, when the child

is "both employed and attending college full time.").

On October 31, 2014, the provisions of the October 11, 2013

order were mistakenly viewed as requiring each parent contribute

to any and all college costs. However, the record shows no

38 A-1832-14T1 analysis of Newburgh's factors was undertaken, and the prior

order was based on less than a complete record. Moreover, as we

point out, no findings supported the issue of emancipation.

Consequently, the October 31, 2014 order, which purported to

enforce the October 11, 2013 order, is also vacated. We add

these additional comments to aid review on remand.

Once the issue of emancipation is decided, an obligation to

pay college costs for an academically motivated unemancipated

child requires a two-fold analysis. First, it demands a

determination of whether equitable or other considerations

militate against parents paying college costs. See

("[A] parent or child seeking contribution

should initiate the application to the court before the expenses

are incurred. The failure to do so will weigh heavily against

the grant of a future application."); Moss v. Nedas,

(App. Div. 1996) (noting parent cannot be viewed

as a "wallet" and deprived of involvement of college decision

making process);

("[A]

student's rejection of the opportunity to attempt reunification

with a parent may be factually so compelling as to equitably

overshadow and eclipse the other Newburgh factors, and tilt the

scales of justice in favor of suspending or completely

39 A-1832-14T1 terminating the parent's obligation to financially contribute

towards the child's college education.").

Second, the court must scrutinize whether the parents are

financially capable of contributing. Weitzman v. Weitzman,

(App. Div. 1988). This requires broader

consideration than parental gross incomes. Other financial

obligations, expenses and debts must be weighed. Here, for

example, plaintiff and defendant each are responsible to support

other minor children, which reduces income available to pay

college costs. Indeed, the college student's contribution also

should be factored. This includes assets, income, scholarships,

loans and other financial aid.3

The October 31, 2014 order includes no analysis supporting

the allocation of the university tuition, fees and books, 40% to

plaintiff and 60% to defendant. Therefore, even if Caitlyn is

found to be unemancipated, the order cannot stand. See Rule

1:7-4(a).

We reject Caitlyn's claim plaintiff's motion for

reconsideration was untimely and also reverse the December 8,

2014 order. Plaintiff challenged the October 31, 2014 order's

interpretation of provisions ordered on October 11, 2013.

3 We note, the December 6, 2014 order clarified Caitlyn's responsibility to apply for scholarships, and she acquired financial aid.

40 A-1832-14T1 Unfortunately, the reviewing judge erred when he limited his

authority to consider only the terms of the October 11, 2013

order.

IV.

We turn to Caitlyn's cross-appeal, which seeks reversal of

the provisions denying her application for attorney's fees on

October 31, 2014 and December 8, 2014. New Jersey does not

subscribe to a system that "loser pays." Statutory provisions,

N.J.S.A. 2A:34-23, court rules, R. 5:3-5(c), R. 4:42-9(a), and

interpretative case law, see, e.g., Mani v. Mani,

(2005), clearly outline necessary considerations when

imposing a counsel fee award. The reviewing judges made

findings, albeit limited ones, regarding the plaintiff and

defendant's good faith in advancing the arguments presented,

which encompasses one consideration.

. Nevertheless, since we have vacated the orders,

attorney fee requests may abide the ordered remand proceedings.

V.

In summary, the starting point of the remand proceedings

determines whether Caitlyn was emancipated when she left her

parents' homes. Only when Caitlyn proves she was unemancipated

must a Newburgh analysis commence. See

("Resolution of [the right to continued educational

41 A-1832-14T1 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). This

includes all facts and circumstances surrounding the requested

college contributions, including the scope and cause of ongoing

estrangement and non-communication. Cf. Philipp v. Stahl,

(App. Div. 2001) (holding the absence of

a relationship between parent and child was "one of the many

factors that go into" the determination of post-secondary

support), rev'd on other grounds,

(2002). See also

(noting a parent or child seeking

contribution for college expenses must inform and communicate

with the parties concerning "the many issues inherent in

selecting a college");

.

Upon an affirmative showing college contribution is warranted,

the inquiry turns to the amount of the financial obligation

itself. This encompasses parental ability to pay,

(stating among the Newburgh

factors, parents' ability to pay is clearly the most

significant), the child's contributions, and reasonableness of

choice to enroll in a chosen school, despite a comparable

available education at other more economical universities, see

42 A-1832-14T1 Finger v. Zenn,

(App. Div. 2000),

certif. denied,

(2001).

Our final comments are observational. A plenary hearing on

emancipation, mandated by law, has one winner and the chasm

between parents and child surely will widen whatever the

outcome. The initial motion judge was very sensitive to this

possibility and urged the parties to seek an alternate course to

reach resolution. We applaud that effort imbued with common

sense. We also recognize demands placed on our Family Part

judges do not allow the luxury of uninterrupted consideration of

one matter at a time. Therefore, in addition to being

emotionally draining and time consuming, litigation is

expensive. In light of these realities, before undertaking the

course outlined by law, we encourage the parties give serious

consideration to whether their positions, and hopefully their

relationship, could be reconciled by a different course of

dispute resolution, which unlike litigation, might more closely

address the dynamic and complex interactions between parents and

child.

Affirmed in part, reversed and remanded in part for

additional proceedings as discussed in this opinion.

43 A-1832-14T1