Opinion
DOCKET NO. A-0560-12T3
2013-09-30
MAHNAZ FARZAN, Plaintiff-Respondent, v. REZA FARZAN, Defendant-Appellant.
Reza Farzan, appellant, argued the cause pro se. Robert A. Abrams argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Carroll.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-676-05.
Reza Farzan, appellant, argued the cause pro se.
Robert A. Abrams argued the cause for respondent. PER CURIAM
Defendant, Reza Farzan, appeals from portions of an August 21, 2012 Family Part order which, among other things, (1) denied his motion to terminate child support for his eighteen-year old daughter; (2) reduced to judgment prior counsel fee awards in plaintiff's favor, totaling $2300; and (3) awarded plaintiff an additional $700 counsel fee by virtue of defendant having again filed a frivolous, repetitive, and unsupported motion. We affirm, substantially for the reasons stated by Judge John R. Tassini in his written findings which accompanied the August 21, 2012 order.
I.
The parties were married in 1998 and had two children, a son, born in 1989, and a daughter, born in 1994. A judgment of divorce (JOD) was entered on June 25, 2009. The JOD incorporated a property settlement agreement (PSA) entered into between the parties on the same date. Article III of the PSA obligated defendant to pay child support for the daughter in the sum of $9880 per year, payable $190 weekly, which at the time of this motion had increased to $199 weekly. Additionally, §3.3 provided, in relevant part, that "child support shall terminate upon the emancipation of the child . . . ." Emancipation was defined in Article IV, as follows:
4.1 A child shall be deemed, for purposes of this Agreement, to have become emancipated upon the earliest happening of any of the following:In Article XIII of the PSA, the parties also agreed that they would both contribute to their children's college expenses to the extent they were financially able to do so, under the principles set forth in Newburgh v. Arrigo, 88 N.J. 529 (1982), or the law in effect at that time.
4.2 "Emancipation" of a child as used in this Agreement shall be deemed to have occurred upon the earliest happening of any of the following events.
a) The child attaining the age of eighteen (18) years unless the child shall be pursuing a reasonably continuous course of college education leading to an
undergraduate degree as a full-time day, undergraduate student at an accredited college or university, in which event emancipation shall not take place until the child attains the age of twenty-two years, unless another emancipation event shall have previously occurred. This paragraph shall apply equally if the children shall pursue a full-time vocational course of study. . . .
As we noted in our prior unpublished decision, following the divorce, defendant filed a series of post-judgment motions, initially seeking to require plaintiff to contribute to the son's support as well as other related relief. We briefly summarize this prior history, to the extent that it bears on the issues raised in this appeal.
Farzan v. Farzan, No. A-1363-10 (App. Div. October 26, 2011) (slip op. at 3).
On June 18, 2010, Judge Honora O'Brien Kilgallen denied defendant's motion, which sought to declare the son emancipated. In her decision, Judge Kilgallen noted "[s]o here, [defendant] is back and he does indeed raise many of the exact same issues raised before."
In September 2010, defendant filed another post-judgment motion seeking relief similar to that requested in previous motions, which the trial judge denied on October 6, 2010. Defendant appealed, and in affirming the trial judge's ruling we noted:
Following the divorce, defendant filed a series of postjudgment motions, seeking to require plaintiff to contribute to the son's support as well as other relief. The court denied defendant's first motion on March 26, 2010, and denied his second motion on June 18, 2010. In the order denying the second motion, the judge warned defendant that if he persisted in filing repetitive motions, unsupported by evidence, the court might require him to pay plaintiff's counsel fees for having to defend herself against those motions.
Nonetheless, defendant sought some of the same relief in the motion that gave rise to this appeal.
[Farzan, supra (slip op. at 3).]
In April 2011, plaintiff filed a motion to hold defendant in violation of litigant's rights. On May 13, 2011, Judge Lisa P. Thornton granted plaintiff's motion, and ordered defendant to immediately pay plaintiff's counsel fees of $2300, representing $1600 pursuant to the October 6, 2010 order, and $700 pursuant to a January 7, 2011 order.
In November 2011, defendant filed another motion in which he sought various forms of relief, including a request that child support for the daughter terminate upon her upcoming eighteenth birthday in March 2012. Judge Dennis O'Brien denied that relief on December 2, 2012. In his accompanying statement of reasons, Judge O'Brien noted: "[i]n addition, pursuant to the parties' PSA, their daughter, [], will not be considered emancipated if she is attending school full-time despite reaching the age of majority."
In June 2012, immediately following the daughter's graduation from high school, defendant again moved to terminate child support for his daughter entirely, on the grounds that she was now emancipated, notwithstanding Judge O'Brien's earlier determination. Plaintiff opposed the motion on the grounds that the daughter had been accepted as a full-time student at a New Jersey college, where she had received a substantial financial aid package. Additionally, plaintiff filed a cross-motion seeking, among other things, (1) to deny defendant's motion as frivolous; (2) to require defendant to contribute to the cost of the daughter's college education; (3) to enter judgment against defendant in the sum of $2300 for the prior unpaid counsel fee awards; and (4) for counsel fees attributable to this motion.
Defendant did not seek to modify child support based on "changed circumstances". See Lepis v. Lepis, 83 N.J. 139, 146 (1980). Rather, he sought a complete termination of child support, claiming that the daughter was emancipated.
Judge Tassini again denied defendant's request to terminate his child support obligation. In his cogent written statement of reasons on the various issues raised in the motion and cross-motion, the judge noted that the PSA, which the parties negotiated and agreed to, defined emancipation as occurring when the child reached eighteen, unless the child was a full-time student. Here, the child continued as a full-time college student. The judge found "defendant's representation that he did not understand that his daughter would attend college [] incredible," and deemed defendant's motion for emancipation "frivolous." The judge further found that "defendant has — once again - also caused [] plaintiff to incur attorney's fees in opposing [] defendant's unsupported motions . . . ." Accordingly Judge Tassini reduced the prior counsel fee awards to judgment, and awarded plaintiff an additional $700 counsel fee on this motion. Defendant again appeals.
II.
We begin by reviewing certain principles. Child support is necessary to ensure that parents provide for the "basic needs" of their children. Pascale v. Pascale, 140 N.J. 583, 590 (1995). "The right to child support belongs to the child and 'cannot be waived by the custodial parent.'" Id. at 591 (1995) (quoting Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993)); see also Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006) ("Of course, a parent cannot bargain away a child's right to support because the right to support belongs to the child, not the parent."); Patetta v. Patetta, 358 N.J. Super. 90, 94-96 (App. Div. 2003) (declining to enforce parents' agreement to emancipate child at age eighteen). Parents are permitted to fashion an agreement contrary to prevailing law, as long as they do not bargain away the child's support. See Ordukaya v. Brown, 357 N.J. Super. 231, 239-41 (App. Div. 2003) (parties may agree to deviate below the standards for child support in the guidelines, but not if the child will be prejudiced).
By statute, parents are presumptively required to provide for the financial support of their unemancipated children. N.J.S.A. 2A:34-23(a). Conversely, "emancipation is the act by which a parent relinquishes the right to custody and is relieved of the duty to support a child." Newburgh v. Arrigo, supra, 88 N.J. at 543 (1982). Emancipation can occur, for example, upon the child's marriage, entrance into military service, attainment of the age of majority, or by court order in the child's best interest. Ibid. "In appropriate circumstances, parental responsibility includes the duty to assure children of a college and even of a postgraduate education such as law school." Id. at 544.
As with other forms of child support, a parent's obligation to pay educational expenses ordinarily terminates upon emancipation. See Gac v. Gac, 186 N.J. 535, 542 (2006); Newburgh, supra, 88 N.J. at 543-45; Johnson v. Bradbury, 233 N.J. Super. 129, 136 (App. Div. 1989). Notwithstanding, "a parent can bind himself or herself by consensual agreement, voluntarily and knowingly negotiated, to support a child" beyond the time that an application of Gac, Newburgh, and N.J.S.A. 2A:34-23(a) would otherwise mandate. Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006). Such agreements are enforceable if they are "fair and equitable." Ibid. When parents have created an enforceable agreement as to child support, "the parental obligation is not measured by legal duties otherwise imposed, but rather founded upon contractual and equitable principles." Dolce, supra, 383 N.J. Super. at 18.
Here, in their PSA, the parties also made provision for payment of college costs beyond the age of majority. However, that issue is not presently before us, as plaintiff has not cross-appealed from the denial, without prejudice, of her cross-motion to compel defendant to contribute to the daughter's college costs.
Judge Tassini recognized this principle in his statement of reasons. Judge Tassini did not explicitly discuss its application, but he did note that when the parties divorced, defendant stated that he was satisfied with the PSA. The judge further noted that "[d]uring [] defendant's appearance on this motion, [] defendant appeared to be intelligent and well educated and he was articulate and assertive. [] [D]efendant has not shown that he was forced to sign the PSA." Additionally, in §25.9 of the PSA, each party acknowledged that they entered into the PSA "freely and voluntarily", and that the PSA was "fair and reasonable".
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As in the trial court, defendant's primary argument on appeal is that he should no longer be required to pay child support for his daughter since she has now attained the age of majority and completed high school. Not only is this argument contrary to existing case law, cited above, it is expressly contrary to the PSA wherein defendant specifically agreed to remain obligated to pay child support beyond the age of majority so long as the child was not emancipated, which clearly here had not yet occurred.
We similarly decline to disturb the counsel fee awards. Here, the record indicates that the $2300 counsel fees charged to defendant were a result of plaintiff's efforts to enforce the terms of the PSA. Article XXI of the PSA specifically authorizes an award of attorney's fees against the defaulting party. Defendant did not appeal either of the two prior counsel fee awards which comprised the $2300 sum, which went unpaid and were accordingly reduced to judgment. There is no indication that any fee was unreasonable.
The judge made findings of bad faith on defendant's part, specifically citing defendant's failure and/or refusal to comply with prior orders. A party's bad faith weighs heavily into the appropriateness of an award of attorney's fees. See Mani v. Mani, 183 N.J. 70, 95 (2005). Here, the court's finding of bad faith finds ample support in the record.
Defendant's additional appellate contentions, which include (1) an unavailing equal protection argument; (2) that plaintiff has disappeared, and that plaintiff's attorney cannot speak for her; and (3) that a plenary hearing was necessary, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). As previously noted, we affirm for the reasons stated by Judge Tassini, which are amply supported by the record. R. 2:11-3(e)(1)(A).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION