MELODY ANN TEKTAS VS. SALVATORE COVINO(FM-15-0680-01, OCEAN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4180-15T4
MELODY ANN TEKTAS
f/k/a MELODY ANN COVINO,
Plaintiff-Respondent,
v.
SALVATORE COVINO,
Defendant-Appellant.
_______________________________
Submitted October 25, 2017 – Decided December 1, 2017
Before Judges Alvarez and Geiger.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County,
Docket No. FM-15-0680-01.
Steven J. Sico, attorney for appellant.
Respondent has not filed a brief.
PER CURIAM
Defendant Salvatore Covino appeals from the April 25, 2016
order denying his post-judgment motion and granting plaintiff
Melody Ann Tektas' cross-motion in part. After a careful review
of the facts and applicable legal principles, we affirm.
Plaintiff and defendant were married on December 10, 1994,
and had two sons, Brett and Brandon Covino. The parties separated
on October 24, 2000. Plaintiff filed for divorce on November 13,
2000. On December 10, 2001, the parties entered into a
comprehensive property settlement agreement (PSA). They were
divorced in December 2001.
Defendant retired as a lieutenant from the Middlesex County
Sheriff's Department. He was eligible for Social Security benefits
and elected to have Brandon receive $1000 per month from his Social
Security benefits for the twenty-four month period when Brandon
was between sixteen and eighteen years old. He also paid child
support for Brandon to plaintiff.
The parties filed post-judgment cross-motions which were
resolved by a June 1, 2015 consent order that: (1) declared Brett
emancipated; (2) obligated defendant to pay plaintiff child
support of $168 per week for the support of Brandon; (3)
acknowledged plaintiff's receipt of $1000 per month from
defendant's Social Security benefits on behalf of Brandon since
October 2013; (4) required defendant to maintain health insurance
for Brett as long as he is eligible for coverage under defendant's
health insurance; (5) required the parties to equally share the
cost of Brandon's college education in accordance with the factors
set forth in Newburgh v. Arrigo, 88 N.J. 529 (1982); (6) allowed
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defendant full and complete participation in Brandon's college
selection process, with any failure in this regard being considered
"prima facie consent to emancipation of Brandon[;]" (7) allowed
defendant full and complete access to Brandon's enrollment and
financial aid packages, including the right to participate in
financial aid applications, loans, grants, and student loans, with
the failure to do so constituting "prima facie consent of defendant
not having to contribute to college contribution costs[;]" and (8)
provided that a failure by Brandon to maintain at least a 2.5
grade point average "will be prima facie for emancipation
regardless of the number of credits carried or coursework taken."
On November 30, 2015, defendant sought to enforce the consent
order by filing a certification under Rule 4:42-1, the so-called
"five-day rule." Plaintiff filed an objection to the proposed
order. The trial court then advised that defendant would have to
file a motion to enforce the consent order. On January 26, 2016,
defendant filed a motion to enforce litigant's rights and for the
following additional relief: (1) a full accounting of all Social
Security benefits paid to plaintiff on behalf of Brandon; (2)
declaring Brandon emancipated; and (3) terminating all support
obligations for Brandon, including child support and college
expense contribution.
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In support of his motions, defendant certified to the
following facts: (1) plaintiff failed to meet her obligations
under the consent order because defendant had no involvement in
the selection process of his son's college, "no involvement or
knowledge of any attempts to obtain financial aid," and was not
given access to his son's online account for school work; (2)
under the consent agreement "if either party violates the terms
of the Consent Order it's a prima facie consent to the emancipation
of Brandon Covino[;]" and (3) plaintiff converted the Social
Security benefits, acting as if it belonged to her, rather than
applying it towards Brandon's college expenses.
Notably, defendant does not contend that Ocean County College
is academically inappropriate for Brandon, or that there was a
more appropriate or less expensive college that Brandon should
have considered.
On April 6, 2016, plaintiff filed a cross-motion for the
following relief: (1) imposing frivolous litigation sanctions
against defendant; (2) requiring defendant to reimburse plaintiff
for his one-half share of Brandon's first semester college
expenses; (3) requiring defendant to reimburse plaintiff for her
out-of-pocket expenses for Brandon's first semester books; (4)
requiring defendant to reimburse plaintiff for Brandon's spring
semester tuition; (5) requiring defendant to pay one-half of
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Brandon's future college costs; (6) requiring defendant to pay
one-half of Brandon's books and expenses for future semesters; (7)
requiring defendant to treat plaintiff and Brandon with respect
when discussing matters in the future; and (8) for counsel fees
and costs.
Plaintiff's supporting certification asserted the following
pertinent facts in response: (1) defendant did not make any
attempts to contact plaintiff or their son regarding his college
decision process; (2) defendant could have participated in any
aspect of their son's college admission process but he never
attempted to do so; (3) their son still lives with plaintiff; (4)
Ocean County College is very affordable; (5) one semester at Ocean
County College costs approximately $2000; and (6) the Social
Security money was spent on "[s]hoes, clothing, school supplies,
food, electricity," and anything else Brandon needed.
After the motions were twice transferred to different judges,
they were finally heard on April 22, 2016. During oral argument,
defendant requested that the trial court order discovery to
determine how the Social Security monies were used. Defendant
also sought a plenary hearing to address any issues of material
fact, arguing he had made a prima facie showing of emancipation.
Plaintiff did not object to a plenary hearing, offering to proceed
with the hearing that day. The judge indicated that he could not
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conduct a plenary hearing that day. The judge reserved decision
and subsequently issued a lengthy April 25, 2016 order, which
incorporated his findings and analysis.
The judge expressed the following initial concerns,
observations, and findings:
The court is concerned with both
parties['] unwillingness to communicate and
make decisions that are in the best interest
of the child, Brandon. Brandon chose to
attend Ocean County College after graduating
high school. The cost of tuition at Ocean
County College is significantly lower than
tuition at a public or private 4-year college
or university. However, the Defendant has
contradicted himself in his certification.
The Defendant seemed indignant that he was not
included in Brandon's selection process for
college per the Court Order. Furthermore, he
represented his dissatisfaction of having to
pay for Brandon's tuition because he was not
included in the process. It is unclear to the
Court if the Defendant would rather have the
child attend a 4-year university at a higher
cost as the Court cannot think of an
alternative college that would incur less
costs than a County College.
[Emphasis in original.]
The judge denied defendant's application to declare Brandon
emancipated without prejudice. The judge also denied defendant's
request for a plenary hearing with full discovery without
prejudice. In reaching that decision, the judge stated:
The child, Brandon, is currently attending
Ocean County College as a full-time
matriculating student. The Defendant was put
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on notice of the child's desire to attend
Ocean County College for the fall semester.
If information regarding online access and a
release allowing the school to directly
contact the Defendant has not been provided
to the Defendant, the Plaintiff or Brandon
shall provide same by May 22, 2016.
Defendant's application to terminate child support for
Brandon was denied based on the finding that Brandon was not
emancipated.
Defendant's application to terminate any obligation to
contribute to Brandon's college expenses was also denied. Instead,
the judge referred the parties to economic mediation, stating:
The parties are REFERRED to ECONOMIC
MEDIATION. The parties' goal should be to
come up with a COLLEGE/POST GRADUATE EXPENSE
PLAN that will guide them for the future with
respect to BRANDON's plans. Hopefully, it
will also cut down on post judgment
litigation. The Defendant's request for full
discovery is DENIED, without prejudice. Mr.
Sico will forward a letter to [the] Court
listing discovery requested. Mr. Niemiec will
advise the Court wherein he agrees or
disagrees. The Court will then prepare the
discovery Order before the parties go to
ECONOMIC MEDIATION.
[Emphasis in original.]
Plaintiff's application to require defendant to reimburse her
for his one-half share of Brandon's out-of-pocket college costs
for the first semester was denied without prejudice. Similarly,
plaintiff's application to require defendant to reimburse her for
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one-half of the out-of-pocket expenses for 1) Brandon's first
semester books, 2) spring semester tuition, 3) college costs for
future semesters, and 4) books and expenses for future semesters,
was denied without prejudice.
The judge also denied defendant's application to compel a
full accounting of all Social Security monies paid to plaintiff
on behalf of Brandon, finding that plaintiff used the money to
support him.
Plaintiff's application for an award of counsel fees and
costs was denied without prejudice. Her application to sanction
defendant for filing a frivolous motion was also denied.
Defendant was ordered "to treat the Plaintiff and Brandon
Covino with respect when discussing these matters in the future .
. . ." Finally, the judge granted the following additional relief:
Both parties shall deposit $2,500.00 in each
respective attorney's bank account within
ninety (90) days of this Order. It shall be
used for Brandon's Ocean County College
tuition and college related expenses, upon the
consent of both parties either pre or post
ECONOMIC MEDIATION. Any unused monies shall
be released to the parties in equal shares
upon Brandon obtaining his associate's degree
or failing to maintain at least 12 credits per
semester, or upon further order of the Court.
Without first seeking the additional discovery or
participating in the economic mediation contemplated by the order,
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defendant filed this appeal. On August 19, 2016, the judge issued
the following clarification to paragraph 2 of his order:
The Court heard oral argument from
Defendant's counsel, STEVEN SICO, ESQ. Mr.
SICO indicated that the Defendant took a
deduction from his retirement, via social
security, to support the child in the amount
of $1,000 per month from the age of sixteen
(16) to eighteen (18). Counsel asserted that
this came to a total of $24,000.00, which has
not been accounted for. Defendant indicated
a similar argument in his written
certification.
The Court then heard oral argument from
Plaintiff's counsel, THADDEUS D. NIEMIEC, ESQ.
Mr. NIEMIEC indicated that the Plaintiff used
the funds to support the child. Counsel
represented that the child lived with the
Plaintiff during this time and it was to
provide food, clothes, and other necessities.
Plaintiff indicated a similar argument in
[her] written certification.
In this appeal, defendant contends the trial court erred by
deciding the motions based on conflicting factual certifications
without granting a plenary hearing. He further contends the trial
court abused its discretion by failing to enforce the June 1, 2015
consent order.
I.
"The scope of appellate review of a trial court's fact-finding
function is limited. The general rule is that findings by the
trial court are binding on appeal when supported by adequate,
substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394,
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411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins.
Co., 65 N.J. 474, 484 (1974)); accord MacKinnon v. MacKinnon, 191
N.J. 240, 253-54 (2007). "Furthermore, matrimonial courts possess
special expertise in the field of domestic relations." Id. at
412. "Because of the family courts' special jurisdiction and
expertise in family matters, appellate courts should accord
deference to family court factfinding." Id. at 413. "We reverse
only to ensure that there is not a denial of justice because the
family court's conclusions are clearly mistaken or wide of the
mark." Parish v. Parish, 412 N.J. Super. 39, 48 (App. Div. 2010)
(citations omitted). However, we owe no special deference to the
judge's legal conclusions. Manalapan Realty, L.P. v. Twp. Comm.
of Manalapan, 140 N.J. 366, 378 (1995).
Interpretation and construction of a contract, such as a
consent order, is a matter of law for the trial court, subject to
de novo review on appeal. Kaur v. Assured Lending Corp., 405 N.J.
Super. 468, 474 (App. Div. 2009) (reviewing the enforcement of a
settlement agreement de novo); Fastenberg v. Prudential Ins. Co.
of Am., 309 N.J. Super. 415, 420 (App. Div. 1998).
We "defer to a trial judge's discovery rulings absent an
abuse of discretion or a judge's misunderstanding or
misapplication of the law." Capital Health Sys. v. Horizon
Healthcare Servs., 230 N.J. 73, 79-80 (2017) (citing Pomerantz
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Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011)). Courts
"find[] an abuse of discretion when a decision is 'made without a
rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis.'" US Bank Nat'l
Ass'n v. Guillaume, 209 N.J. 449, 467-68 (2012) (quoting Iliadis
v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).
II.
Defendant argues that the trial court erred in denying his
motion for enforcement of litigant's rights without conducting a
plenary hearing to resolve any disputed material facts. He
contends the consent order was fair and equitable and should have
been enforced. Defendant further contends that he made a prima
facie showing of emancipation.
When a moving party makes a prima facie showing that he is
"entitled to relief and there are contested issues of fact," the
trial court should hold a plenary hearing rather than come to a
decision based on "affidavits, answers to interrogatories and
depositions." Hallberg v. Hallberg, 113 N.J. Super. 205, 208 (App.
Div. 1971).
It is undisputed that plaintiff received the Social Security
funds to support Brandon, who resided with plaintiff during the
entire two years in question. As noted by the judge, plaintiff
provided Brandon with food, shelter, clothes, and other
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necessities. Although defendant contends that the Social Security
funds should have been used to pay for Brandon's college expenses,
the consent order indicates otherwise, requiring the parties to
equally share those expenses in addition to defendant paying child
support for Brandon.
Defendant's argument that the trial court erred by not
ordering full discovery misconstrues the trial court's ruling.
The trial court ordered defense counsel to supply the court with
a list of the requested discovery, followed by plaintiff's
counsel's response. The trial court would then prepare the
discovery order before the parties went to economic mediation.
Rather than comply with that directive, receive appropriate
discovery, and proceed to economic mediation, defendant filed this
appeal.
Defendant also argues that the trial court erred in failing
to enforce the consent order. New Jersey favors the use of
consensual agreements to resolve marital controversies. J.B. v.
W.B., 215 N.J. 305, 326 (2013) (citing Konzelman v. Konzelman, 158
N.J. 185, 193 (1999)). Matrimonial settlement agreements are
enforceable "'to the extent that they are just and equitable.'"
Lepis v. Lepis, 83 N.J. 139, 146 (1980) (quoting Schlemm v.
Schlemm, 31 N.J. 557, 581-82 (1960)). As in other contexts
involving contracts, a court must enforce a matrimonial agreement
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as the parties intended, so long as it is not inequitable to do
so. Pacifico v. Pacifico, 190 N.J. 258, 266 (2007).
In fact, the trial court did enforce the consent agreement.
The court required both parties to place $2500 into their
respective attorney's trust accounts for the purpose of paying for
the remainder of their son's college expenses pursuant to the
terms of the consent agreement.
Defendant further argues that the trial court erred in failing
to declare Brandon emancipated, warranting termination of child
support pursuant to the terms of the consent order. We disagree.
Emancipation does not occur automatically simply by reason
of the dependent child reaching the age of eighteen. Dolce v.
Dolce, 383 N.J. Super. 11, 17 (App. Div. 2006). "The issue of
[w]hether a child is emancipated at age eighteen, with the
correlative termination of the right to parental support, is fact-
sensitive." Ibid. (citation omitted). "[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." Id. at 17-18 (citations omitted).
A significant consideration in this regard is
the agreement of the parties to voluntarily
extend the parental duty of support beyond the
presumptive age of emancipation. In other
words, a parent can bind himself or herself
by consensual agreement, voluntarily and
knowingly negotiated, to support a child past
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majority, and such agreement is enforceable
if fair and equitable.
[Id. at 18.]
Here, the parties voluntarily agreed to extend their duty to
support beyond the age of majority. Indeed, we note that the
consent order providing for child support and college expense
contribution was entered into less than four months before Brandon
turned eighteen years old.
We further note that the right of a child to be supported may
not be waived by a custodial parent. Gotlib v. Gotlib, 399 N.J.
Super. 295, 305 (App. Div. 2008); L.V. v. R.S., 347 N.J. Super.
33, 41 (App. Div. 2002)). "The public policy of this State as
derived from its parens patriae interest in the welfare of children
prohibits parents from bargaining away the essential rights of
their [children] to be properly supported." Patetta Patetta, 358
N.J. Super. 90, 95-96 (App. Div. 2003). Therefore, the parental
duty to support a child may not be waived or terminated by a
consent order, Martinetti v. Martinetti, 261 N.J. Super. 508, 512
(App. Div. 1993), or a property settlement agreement, Patetta,
supra, 358 N.J. Super. at 95-96.
Here, the provision in the consent order for "prima facie
consent" to the emancipation of Brandon and termination of child
support obligations upon failure to abide by the terms of the
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agreement is unenforceable against Brandon. Martinetti, supra,
261 N.J. Super. at 512.
Further, because defendant's emancipation argument relied
solely on plaintiff's alleged failure to comply with the terms of
the consent order, without addressing any of the Newburgh factors
for determining emancipation, the trial court properly determined
that defendant failed to make a prima facie showing of
emancipation. Moreover, the undisputed facts show that Brandon
was still living with plaintiff, supported by her, and attending
college full-time. Hence, defendant did not make out a prima
facie case that Brandon had moved beyond plaintiff's sphere of
influence and responsibility.
"[I]n the Family Part, a plenary hearing is only required if
there is a genuine, material and legitimate factual dispute."
Segal v. Lynch, 211 N.J. 230, 264-65 (2012). The requesting party
must make a prima facie showing that a "genuine issue of fact
exists bearing upon a critical question," which cannot be
accomplished by submitting conclusory certifications. Faucett v.
Vasquez, 411 N.J. Super. 108, 127-28 (App. Div. 2009) (citation
omitted).
Here, defendant's certification consists of merely conclusory
assertions, without addressing the pertinent facts and prevailing
circumstances critical to a fact-sensitive evaluation whether
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Brandon was emancipated. See Llewelyn, supra, 440 N.J. Super. at
216. Moreover, defendant failed to present any evidence that he
attempted to involve himself in the college selection and financial
aid applications and was prevented from doing so by plaintiff or
Brandon. Nor can we perceive a more economical manner to pursue
higher education than living at home with a parent while commuting
to a local community college. Thus, defendant failed to make a
prima facie showing entitling him to a plenary hearing.
In summary, we find no abuse of discretion by the trial court.
The record amply supports the mechanism employed by the trial
court to provide for additional discovery followed by economic
mediation without first conducting a plenary hearing. More
fundamentally, much of the relief sought by defendant was denied
without prejudice, allowing him to further pursue that relief if
the court-ordered economic mediation was unsuccessful. Defendant
unilaterally declined to do so, filing this appeal instead. He
should not be heard to complain that he was denied relief when he
chose not to participate in the reasonable procedures established
by the trial court to address the very issues he raised.
Affirmed.
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