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					                    NOT FOR PUBLICATION WITHOUT THE

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-5249-07T2







         Argued March 8, 2011 - Decided     June 9, 2011

         Before Judges Carchman, Graves and Waugh.

         On appeal from the Superior Court of New
         Jersey, Chancery Division, Family Part,
         Sussex County, Docket No. FM-19-161-98.

         Noel E. Schablik argued the cause for
         appellant (Noel E. Schablik, P.A.,
         attorneys; John T. Knapp and Mr. Schablik,
         of counsel and on the brief).

         Peter J. Laemers argued the cause for
         respondent (Albino, Ullmann, Laemers &
         Pompelio, L.L.C., attorneys; Elizabeth A.
         Calandrillo, on the brief).


    This appeal represents our second review of an on-going

matrimonial dispute between plaintiff Mary Diemer and defendant

Roy R. Diemer.    In our earlier opinion, Diemer v. Diemer, No. A-
2875-02 (App. Div. March 5, 2004) (Diemer I), we reversed the

trial court's denial of alimony to plaintiff and remanded for

further consideration of that issue.    We also reversed and

remanded the portions of the order addressing child support for

the parties' son Matt, and ordering the immediate sale of the

marital home.

     After extensive motion practice and hearings before

various judges on these issues, plaintiff again appeals from

both a May 22, 2008 amended dual judgment of divorce and two

orders, dated July 9, 2004 and April 9, 2009, all issued

following our remand.    Specifically, she claims that the trial

courts erred by:    (1) denying her motion for alimony; (2)

failing to require the payment of child support, and by ordering

that any support should be paid directly to Matt rather than to

plaintiff; (3) refusing to order defendant to contribute to the

college and unreimbursed medical expenses incurred by the

parties' daughter, Jessica; (4) denying her request for one-half

of the value of timeshares that the couple purchased during the

marriage; and (5) ordering that the marital residence be sold

immediately.    Finally, she urges that we assert original

jurisdiction and decide the alimony issue.

    We decline to exercise original jurisdiction; however, we

agree that the trial judge erred as to alimony and child

                                  2                           A-5249-07T2
support.    Accordingly, we reverse and remand as to those two

issues.    As to the remaining issues, we affirm.



     We briefly set forth the procedural history of this matter

following our decision in Diemer I.

     After our remand, plaintiff moved for relief pending the

remand hearing.    Specifically, she sought $250 per week in

temporary alimony, temporary child support for Matt and support

for Jessica's college and other expenses.    She also sought an

order preventing defendant from selling the marital home and

requiring him to pay all maintenance fees and late charge

payments for the timeshares the couple had purchased during the


     On July 9, 2004, the motion judge1 entered an order denying

the relief plaintiff sought, and requiring the immediate sale of

the timeshares.    The judge noted that the issues of alimony and

child support for Matt would be addressed at the remand hearing,

and that the issue of defendant's contribution towards Jessica's

college expenses would require a subsequent hearing.

     Remand hearings took place before a second judge in August

2007, and an amended dual judgment of divorce was issued on

  Three different judges entered the orders which are the subject
of this appeal.

                                  3                         A-5249-07T2
March 22, 2008.   Specifically, the marital home was to be sold

within thirty days and defendant's alimony obligation was

terminated as of April 20, 2008.       Further, "child support"

payments previously made to plaintiff were terminated

immediately, but defendant was ordered to pay $150 per week in

support directly to Matt.

    Plaintiff filed a notice of appeal from that order on July

7, 2008; however, plaintiff's counsel realized that the remand

court had failed to address all of the remanded issues and

sought a limited remand, which we granted.

    A limited remand hearing took place on several dates in

February and March 2009.    On April 9, 2009, the third judge

hearing the matter entered an order in which he declined to

award child support for Jessica because she was "emancipated

upon her graduation from school."       Similarly, the judge denied

plaintiff's request for reimbursement of Jessica's college and

unreimbursed medical expenses.    Finally, the judge denied

plaintiff's request for damages related to the loss of the

timeshares to foreclosure.

    Plaintiff thereafter filed an amended notice of appeal, in

which she appealed from the July 9, 2004, May 22, 2008 and April

9, 2009, orders and judgments.


                                   4                          A-5249-07T2
    In Diemer I, we set forth the factual background related to

the marriage and this dispute.   We incorporate those facts by

reference and do not repeat them here.       See Diemer I, supra, No.

A-2875-02 (slip op. at 2-14).

    To better understand the nature of the remand hearing, we

briefly set forth the basis for our decision in Diemer I.          In

Diemer I, we agreed with plaintiff that the trial court erred in

denying her permanent or rehabilitative alimony.       We noted that

the trial court had relied on plaintiff having already obtained

her Bachelor's degree, and imputed $26,000 to $30,000 in full-

time wages to her on that basis.       Moreover, the trial court

concluded that plaintiff could have earned a starting salary of

$40,000 per year once she obtained her Master's degree.

    The trial court found that while defendant had

"considerable seniority and job security" in his position at

USPS, he had "no apparent chance of significant further

advancement or promotion."   His income ranged from $56,000 in

1998 to $59,000 in 2001, reflecting his "present income


    The trial court further concluded that through the support

he paid, defendant had assisted plaintiff, during the pendency

of the divorce, in obtaining her college degree.       According to

the judge, plaintiff had "in effect received rehabilitative

alimony during the pendency of the divorce by reason of

                                   5                          A-5249-07T2
defendant being the major financial support of the family while

plaintiff has pursued further education towards her chosen new

career goal."

    The trial court found that plaintiff could have earned

$15,000 to $20,000 per year during the last five years given her

education at Berkley and prior work experience, rather than the

$5,500 she actually earned in 2001.   In short, the trial court

found that plaintiff received "pendente lite rehabilitative

alimony" during the pendency of divorce, in that defendant

supported the entire family on his income until plaintiff began

working in 1995.

    Moreover, the court found that plaintiff's income would

approach, and could eventually exceed, defendant's, and that

plaintiff had received approximately $100,000 in an inheritance.

The trial court concluded that "plaintiff's present income and

projected income ability should be sufficient to support one

person at, or near, the standard of living enjoyed during the

marriage, and that she is not a candidate for further alimony or

permanent alimony."

    We concluded in Diemer I that the trial court erred for

several reasons.   First, the trial court erred in finding that

defendant "shouldered all of the family's expenses during the

entire pendency of the divorce," because plaintiff worked part-

time between 1997 and 1999.   Diemer I, supra, A-2875-02 (slip

                                 6                        A-5249-07T2
op. at 20).   Moreover, defendant did not pay all of the

obligations required of him, and some of the support was on

behalf of the children and not just for plaintiff.          We did "not

believe that defendant's 'support' qualifie[d] as rehabilitative

alimony."   Id. at 20-21.   More importantly, plaintiff had not

earned a Bachelor's degree from Sussex County Community College

(SCCC), as the trial court had found, but had earned only an

Associate's degree.    Id. at 21.

    In addition, there was no evidence that defendant could not

seek a more senior position at USPS, and plaintiff had used her

life insurance proceeds and inheritance to meet house expenses

for her and her children; she did not have $100,000 available as

found by the trial court.    Ibid.       Given that:   (1) the marriage

was long-term and plaintiff was discouraged from working by

defendant; (2) plaintiff was not prepared to enter the job

market with her "twenty-year old degree [from Berkeley] that had

little relevancy or value today"; and that (3) plaintiff's

future projected income with a graduate degree "was entirely

irrelevant at the time of trial," we could "not agree that term

or rehabilitative alimony was unauthorized in this case."         We

reversed and remanded "for reconsideration of alimony and an

assessment of the monies needed by plaintiff so that she [could]

complete her Bachelor's degree and thereafter re-enter the work

force."   Id. at 22.

                                     7                           A-5249-07T2
    We also reversed the trial court's decision regarding child

support and noted the trial court had imputed $27,500 in income

to plaintiff, based on its mistaken belief that she had already

earned a Bachelor's degree.   Moreover, additional income should

have been imputed to defendant, who had failed to work extra

hours, as he had done during the marriage, after he left the

marital residence.   We remanded for a reassessment of

defendant's child support obligation to Matt in light of

plaintiff's and defendant's actual present circumstances and

earning power.   Id. at 24-25.

    We also concluded that the trial court erred in ordering

the immediate sale of the marital home.   The trial court ordered

that sale because the real estate market in New Jersey was so

strong at that time, and because it wanted to protect the

parties' equity in the home; however, we disagreed because the

trial court failed to consider "the parties' wishes, Matthew's

needs and the significant monies owed by [defendant] to

plaintiff."   Id. at 31-32.   Notably, defendant indicated at

trial that he did not want the home sold until Matt had

graduated from college.   Moreover, it was unlikely that

plaintiff could find comparable housing for herself and her

children given her then-current circumstances.   Given the money

owed by defendant to plaintiff, it was "possible that plaintiff

                                  8                         A-5249-07T2
could be awarded defendant's share of the equity in the house in

lieu of other payment."   Id. at 32.


      At the first remand hearing in August 2007, plaintiff

reiterated information related to defendant's earnings and

described the parties' lifestyle noting that the parties

purchased their home, invested in time shares and took multiple

vacations.   Although the lifestyle was by no means extravagant,

they shared a middle class lifestyle commensurate with their


      Plaintiff also reiterated her post-marital education,

issues and facts that we had discussed in Diemer I.      Plaintiff's

goal was to obtain a position as a speech pathologist for a

school district.   As of the hearing, she had applied for

licenses in New York and New Jersey that would allow her to do

so.   She anticipated that that position would pay her

approximately $50,000 per year.    As a result, plaintiff chose

not to apply for positions as a teacher after graduating with

her Bachelor's degree in 2004 because that would have taken her

off of her career path.   Rather, plaintiff began work on her

Master's degree and took an internship in 2006.

      In May 2007, plaintiff began working in a temporary

position as a speech teacher for an Orange County, New York

school.   Her contract paid her $7,100, less the time she missed

                                   9                         A-5249-07T2
to attend the remand hearing.    As of the hearing, plaintiff had

year-to-date earnings in 2007 of $6,133.60 from this teaching


    Defendant continued to work for the USPS.     The "State"

wages reported on defendant's tax returns, rather than his

"Federal" wages, which the parties relied upon during the

hearing, were $59,251.69 in 2001, $63,528.93 in 2002, $60,428.71

in 2003, $68,434.00 in 2004, $78,192.76 in 2005 and $82,484.21

in 2006.    Defendant conceded that although promotions were

available and he was qualified, he never applied for any,

because he was told by his superiors that doing so would be a

"waste of [time]."

    Defendant planned to retire once the marital home was sold,

because he would have had thirty-eight years of service with the

USPS as of September 6, 2007.    He anticipated receiving a $4,023

monthly pension with an annuity upon his retirement.

    Plaintiff lived in the marital home as of the first remand

hearing.    She acknowledged that Jessica had moved out, Matt was

in college and he had taken an internship the past summer.

Nevertheless, she wanted to keep the marital home until Matt

graduated from college, so that he could maintain state aid and

to store all of his belongings.    Defendant was willing to let

plaintiff buy out his interest; otherwise, he wanted the home

sold immediately.

                                  10                        A-5249-07T2
    Plaintiff filed a Case Information Statement (CIS) on June

5, 2007.   She described her income from 2006 and 2007 and listed

current shelter expenses as $1,515.92 per month, transportation

costs of $790 per month (which would increase by $350 when she

purchased another car), and current personal expenses of $1,901

per month (which would increase by $570 per month when her

student loan payments commenced).    Her current total monthly

expenses were $4,426.92.

    Obviously, plaintiff's living expenses exceeded her income.

She testified that she lived in part on the life insurance and

inheritance proceeds discussed above after her mother and

stepfather died.   She also used that money for litigation

expenses of $5,200, and to bring the mortgage on the marital

home current.   Plaintiff also lived on the $45,000 share she

received from the proceeds of the sale of the vacant lot.

    In addition, defendant paid one-half of the two mortgages

on the marital residence (approximately $600 per month), health

insurance for the children of approximately $35 per month, and

$195 in weekly support for Matt.     Defendant also paid $440 per

month, approximately $10,000 in total, to pay off marital credit

card debt.   According to defendant, as of the time of the

hearing, he was living rent-free with his girlfriend in Hamburg.

The couple split the other household expenses.    Defendant termed

                                11                           A-5249-07T2
that a temporary situation, as he planned to move to his own

house once he retired.

    Defendant submitted a CIS, based on his expenses living in

the apartment, on August 31, 2005.   That CIS reflected monthly

shelter expenses of $1,146.44, including $525 in rent, $385.21

in monthly transportation costs, and $1,152.83 in monthly

personal expenses.   Defendant's total expenses were $2,684.48

per month.   Defendant noted that his income in 2004 exceeded

$68,000.   Defendant listed as assets his interest in the marital

home, the timeshares, stock he valued at approximately $21,000

and his $123,019 of interest in his pension plan.   His

liabilities included the mortgage on the marital home, $7,800 in

credit card debt, and $43,000 in legal fees.

    Defendant conceded that before the divorce, he contributed

only $650 toward his TSP, his retirement plan.   In 2004,

however, he contributed $8,700; the next year he contributed

$10,000 and in 2006 he contributed $15,000.    The balance in the

account was $82,156.56 as of August 29,2007, and as of the

hearing he was contributing as much as $1000 every other week.

Defendant claimed that his contributions increased after 2003

because he finished paying off the marital credit card debt.

    In our earlier opinion, we concluded that the timeshares

were worth "$32,000 at the time of [the original] trial."    At

the remand hearing, plaintiff explained that although the couple

                                12                          A-5249-07T2
purchased several timeshares during the marriage; only the

Georgia timeshare is in dispute here.

    Although the timeshares had been previously ordered sold,

plaintiff claimed that defendant refused to cooperate with her.

As a result, plaintiff paid the maintenance fees on them in

order to keep them out of foreclosure.   However, she was

ultimately unable to continue paying those fees, and the

timeshares were ultimately lost in foreclosure.    In total,

plaintiff paid $5,305.94 in maintenance fees from 1998 through


    Defendant conceded that although he paid the maintenance

fees during the marriage, he made no payments toward them after

the separation.   However, he claimed that plaintiff never

contacted him regarding sale of the timeshares nor payment of

the maintenance fees.

    As to child support for the parties' son, Matt, plaintiff

indicated that he was nineteen years old at the time of the

hearings.   He was a physics major in his sophomore year at

Stevens Institute of Technology in Hoboken and spent the summer

of 2007 working as an intern in New York City.    However, his

possessions were still at the marital home, and he lived there

when not in school or on internship.    Plaintiff paid for many of

Matt's college expenses.

                                13                           A-5249-07T2
     Defendant paid the child support and health insurance, and

contributed one-half of the mortgages on the marital home.     He

also provided Matt with $20 per week in cash while he was at

school, and that amount plus another $30 to $40 per week for

groceries during the summer.

     As for Jessica, she was twenty-three years old as of the

first remand hearing.   She graduated from high school in 2001,

battled some illnesses, and eventually earned an Associate's

degree at (SCCC).   Jessica was in the process of completing her

course work to obtain a Bachelor's degree from Indiana

University (IU) and intended to graduate in December 2007.

Defendant had never paid child support on her behalf.    Jessica

had married shortly before the first remand hearing, and was

living with her husband in Indiana.   Until Jessica married,

plaintiff supported her by paying her car insurance, cell phone

and by providing $200 to $300 for her expenses each month.

Plaintiff also paid for substantial medical expenses incurred by


     At this hearing, defendant learned that Jessica was

married.    He had seen her only occasionally since 1997, and she

  Proofs concerning the specific expenses and the amounts paid by
plaintiff for Jessica's education and support were not submitted
until the second remand hearing and will be described, infra.

                                 14                        A-5249-07T2
had not responded to any of the numerous emails he had recently


    Following the first remand hearing, the trial judge noted

that the issues before him were "a reassessment of the sale of

the marital home, child support and alimony."

    He concluded that "[t]he marital home should be ordered

sold at this time," because Matt was in school and returned home

only "for short periods and on some weekends."    "There [was] no

reason to maintain the home for his benefit," as plaintiff had

claimed during trial.    After the mortgages were paid and other

credits resolved, the couple would evenly divide the remaining


    The judge next concluded that "[r]ehabilitative alimony is

warranted based upon the evidence in this case."    Specifically,

he noted that defendant had paid $195 per week in child support

for Matt, plus one-half of the mortgages and insurance and taxes

on the marital home.    He also paid approximately $66,000 in

marital credit card debt to which plaintiff did not contribute.

    However, the judge found that plaintiff had "an earning

capacity of approximately $55,000 in her first full year of

employment," and had had the opportunity to obtain two degrees

that "will result in a stream of income which is not far from

what the defendant is earning after 38 years."    He rejected

plaintiff's claim that the parties enjoyed an "above average

                                 15                        A-5249-07T2
lifestyle during the marriage," finding instead that they "lived

a modest lifestyle on their available income."

    The judge concluded, based on these facts, that "[b]y

virtue of the appeal and passage of time plaintiff has received

de facto rehabilitative alimony for a period of 5 years.    The

rehabilitative alimony recognized herein shall end effective

April 20, 2008[,] some ten years since the parties separated."

The parties would thereafter each be responsible for one-half of

the mortgages and taxes on the marital home until it was sold;

plaintiff was responsible for all utilities, maintenance and

"ordinary repairs costing less than $500.00 until the property

is sold."

    Finally, he found that "[t]he child support guidelines

[did] not apply" to Matt because he was in college and was not

residing with plaintiff.   He concluded, without making any

further findings, that "[n]o additional child support is

warranted." Nevertheless, defendant was ordered to pay $100 per

week in "direct support" to Matt, to buy at least $50 of

groceries for Matt each week and to maintain health insurance

for Matt and pay for his unreimbursed medical expenses.

    Unfortunately, the judge failed to rule on either

plaintiff's request for damages related to the timeshares or her

request for child support and reimbursement for Jessica's

college and unreimbursed medical expenses.

                                16                          A-5249-07T2
    We granted a limited remand, and at that hearing the

parties reiterated their positions regarding their prior

payments to support the timeshares.

    In addition, prior testimony regarding Jessica was

repeated, except Jessica claimed that her relationship with

defendant was poor because defendant verbally and physically

abused her and plaintiff, and that she terminated her visits

with defendant after he verbally assaulted her one day without

provocation.   Defendant denied such abuse, and claimed that he

and Jessica had a good relationship during the marriage.

Defendant rarely saw Jessica after the separation; he tried to

call her in December 2008, but she was not interested in

speaking with him.    Jessica did not respond to any of the

several emails defendant sent her over the years.

    As a result, defendant initially claimed that he did not

learn that Jessica was actually attending SCCC until after the

fact.   However, he conceded during the hearing that the issue

did come up during the first divorce trial, before Jessica began

matriculating there.

    Plaintiff and Jessica testified that Jessica attended SCCC

part-time beginning in the fall of 2003, and went full-time for

her final semester.    She graduated in the spring of 2004.

Jessica did not immediately begin college after graduating from

                                 17                           A-5249-07T2
high school, in part due to medical issues such as anxiety,

depression and constant pain.

    Jessica worked part-time while at SCCC and earned

approximately $12,000 in 2002 and $2,192 in 2003.    Nevertheless,

Jessica and plaintiff testified that she was dependent on

plaintiff for all of her housing, transportation and personal

needs.   Jessica paid the majority of her tuition at SCCC through

grants, state aid and a $2,600 loan.

    In the spring of 2004, Jessica began attending Indiana

University, which she chose for its curriculum (she was

interested in Native American studies, and the school awarded

her an internship which provided her with free room and partial

board during her tenure there).    Plaintiff claimed that she

informed defendant of Jessica's decision to study there and

asked for financial assistance, both orally and in court

documents.   Defendant never agreed to provide such support.

    Plaintiff and Jessica applied for loans so that Jessica

could attend IU full-time, but their applications were denied.

Jessica did obtain loans and a grant in the amount of $7,500 and

attended the school part-time until she graduated.    Jessica

established residency in Indiana in September 2005 in order to

reduce her tuition.

    Jessica's college loans totaled $25,125, and with interest

amounted to $34,531.10.   Jessica and plaintiff both testified

                                  18                        A-5249-07T2
that plaintiff had orally agreed to assist Jessica in paying the

loans, even though plaintiff was not listed as a co-guarantor.

    Plaintiff claimed that she gave Jessica money while she

lived in Indiana, and when she visited she bought her food and


    Defendant asserted that while he learned that Jessica was

attending IU in court, there was no connection between him and

either plaintiff or Jessica, he received no transcripts or bill

from IU and he did not ask about the cost of attending that


    As of this hearing, Jessica had begun a "fledgling

education service" by which she educated children about Native

American culture and provided related services at local parks.

    Plaintiff also sought reimbursement from defendant for the

medical expenses she paid on Jessica's behalf until Jessica

married.    Plaintiff testified at length about those expenses,

including oral surgery and numerous physician and prescription

bills.    The medical expenses for which plaintiff sought

reimbursement totaled $4,378.03.

    Plaintiff testified that she did not inform defendant of

Jessica's medical issues because he was not interested.     She did

not provide defendant with copies of the pertinent bills until

the first remand hearing.    Defendant confirmed that he was

                                 19                         A-5249-07T2
unaware of Jessica's medical problems and did not receive any

bills until the hearing.

    Following this testimony, the judge at the second remand

hearing denied plaintiff's requests for both child support on

behalf of Jessica, and for reimbursement of her medical and

college expenses.   He concluded, that Jessica was emancipated as

of the divorce trial.   He also concluded that plaintiff was not

entitled to damages relating to the foreclosure of the Georgia



    On appeal, plaintiff asserts that the judge in the first

remand hearing erred in refusing to award alimony, in

calculating child support for Matt and in ordering the house to

be sold immediately.    She further challenges the rulings in the

second remand hearing, arguing that the judge erred in refusing

to pay child support or reimburse for Jessica's medical expenses

and in refusing to award plaintiff one-half the value of the


    We address the issues seriatim.

    Plaintiff first asserts that the court erred in denying her

claim for permanent or rehabilitative alimony, arguing that the

remand court failed to abide by the appellate court's direction

                                 20                        A-5249-07T2
in Diemer I to recalculate her alimony based on her actual

circumstances.   We agree.

    An award of alimony is governed by the factors enumerated

at N.J.S.A. 2A:34-23(b).     In Crews v. Crews, 164 N.J. 11, 16

(2000), the Supreme Court reaffirmed the principle of Lepis v.

Lepis, 83 N.J. 139 (1980), and held that "the goal of a proper

alimony award is to assist the supported spouse in achieving a

lifestyle that is reasonably comparable to the one enjoyed while

living with the supporting spouse during the marriage."    The

Court further reaffirmed the three factor "examination"

established in Lepis, supra, 83 N.J. at 152; specifically, a

court must consider the dependent spouse's needs, that spouse's

ability to contribute towards those needs, and the supporting

spouse's ability to maintain the other spouse in the former

standard of living.   Crews, supra, 164 N.J. at 24.

    N.J.S.A. 2A:34-23(b) provides that a court is authorized to

award "one or more of the following types of alimony:    permanent

alimony; rehabilitative alimony; limited duration alimony; or

reimbursement alimony[.]"    Rehabilitative alimony, particularly

relevant here, permits a short-term alimony award to enable a

supported spouse to become economically self-sufficient.     Hill

v. Hill, 91 N.J. 506, 509 (1982); Cox v. Cox, 335 N.J. Super.

465, 474-75 (App. Div. 2000).    The focus is "upon the ability of

a dependent spouse to engage in gainful employment, combined

                                  21                        A-5249-07T2
with the length of the marriage, the age of the party, and the

spouse's ability to regain a place in the workplace."      Id. at

475.    Rehabilitative alimony "is awarded for a term determined

on the basis of plans to enhance and improve earning

capacity[.]"    Gordon v. Rozenwald, 380 N.J. Super. 55, 66 (App.

Div. 2005).    Such support ceases "when the dependent spouse is

in a position of self-support."     Hughes v. Hughes, 311 N.J.

Super. 15, 31 (App. Div. 1998).     Notably, an award of both

rehabilitative and permanent alimony "is favored, where

appropriate."    Id. at 32.

       "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, 411-12 (1998).      Accord Overbay v. Overbay, 376 N.J.

Super. 99, 106 (App. Div. 2005).

       A trial judge must obey the mandate of an appellate court,

Miah v. Ahmed, 179 N.J. 511, 528 (2004), whose "instructions to

the trial court on remand are binding on that court[.]"      Tomaino

v. Burman, 364 N.J. Super. 224, 234 (App. Div. 2003), certif.

denied, 179 N.J. 310 (2004).     In fact, "the very essence of the

appellate function is to direct conforming judicial action."

Id. at 233.

                                   22                        A-5249-07T2
    We concluded in Diemer I that the trial court erred in

denying plaintiff any alimony in the original divorce judgment.

We reversed and remanded for a consideration of defendant's

alimony obligation in light of plaintiff's financial need,

taking into consideration the fact that plaintiff was working

toward her Bachelor's and Master's degrees.

    The remand judge concluded that rehabilitative alimony was

warranted.   However, he found that defendant had provided

$17,400 per year in support to plaintiff since the December 2002

judgment of divorce (in mortgage payments and child support) and

had paid $66,000 in marital credit card debt.   Further,

plaintiff had by that time an earning capacity of $55,000 per

year given her education.

    In sum, the judge concluded that plaintiff had received "de

facto rehabilitative alimony for a period of 5 years," and

ordered it terminated as of April 20, 2008.

    The judge erred in several respects.   He made no findings

regarding any of the statutory factors relevant to an award of

alimony, nor did he comment on why he awarded only

rehabilitative, as opposed to either permanent or permanent and

                                23                           A-5249-07T2
rehabilitative alimony.     Under the facts presented here,

permanent alimony may also have been appropriate.3

     Rule 1:7-4 mandates that the "court shall, by an opinion or

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

state its conclusions of law thereon in all actions tried

without a jury[.]"   The rule requires a trial court sitting

without a jury to clearly state its factual findings and

"'correlate them with relevant legal conclusions.'"     State v.

Locurto, 157 N.J. 463, 470 (1999) (quoting Curtis v. Finneran,

83 N.J. 563, 570 (1980)).

     While the record does not suggest any reasons for the

judge's decision on the issue of alimony, we note that he found

that defendant paid $1,450 per month in expenses on the family's

behalf plus $66,000 in joint credit card debt over the last ten

years, or $6600 per year ($550 per month).     Given plaintiff's

limited income, defendant's income of over $60,000 per year, and

the fact that defendant was living rent-free for much of this

time, on remand, the judge was required to consider defendant's

resources and his proven ability to pay almost $2,000 per month

in expenses.

  We make no finding on that issue but since we remand this
matter, the judge shall make a finding as to the appropriateness
of permanent as well as rehabilitative alimony.

                                  24                          A-5249-07T2
    In Diemer I, we noted that some of the money defendant paid

toward the family's expenses benefited Jessica and Matt, and not

only plaintiff, and that some of the credit card debt defendant

paid might have been his debt and not marital debt.    However,

the remand judge relied on defendant's payment of those expenses

in ruling that defendant's alimony obligation should be

terminated.    In addition, he alluded to and relied on the child

support paid for Matt.   We previously determined that expenses

not geared towards plaintiff should not be considered in this

respect.    On remand, the judge was to consider only support

defendant paid on plaintiff's behalf in deciding on the issue of


    We also questioned whether the amounts defendant paid for

his family qualified as rehabilitative alimony in any event. The

characterization of "de facto rehabilitative alimony" appears to

have disregarded our observation.

    We now reverse the determination as to "de facto

rehabilitative alimony."    We again remand and direct the remand

judge to:   (1) identify and analyze the facts, and particularly

the amounts defendant actually expended on plaintiff's behalf,

considering the statutory factors; (2) explain why only

rehabilitative, and not rehabilitative and permanent alimony,

was appropriate in an almost fifteen year marriage during which

the plaintiff rarely worked, mainly at defendant's request; (3)

                                 25                        A-5249-07T2
and explain how much alimony, if any, plaintiff is entitled to

from the judgment of divorce forward.    The remand judge shall

calculate the type and amount of alimony, and then determine

whether defendant is entitled to credit for payments previously


    We reject plaintiff's request that we exercise original

jurisdiction under Rule 2:10-5.    Resort to original jurisdiction

authority is inappropriate when fact-finding is necessary to

resolve the matter.     Tomaino, supra, 364 N.J. Super. at 234-35;

Hansen v. Hansen, 339 N.J. Super. 128, 143 (App. Div. 2002).

The absence of fact-finding here precludes our granting this

extraordinary relief.


    We now address the issue of child support for both


    Plaintiff argues that the judge erred by refusing to

recalculate child support for Matt from the date between the

divorce judgment and the date of his 2008 remand decision, in

accordance with Diemer I, the judge erred in failing to make

specific findings; and the judge erred by ordering that child

support of $100 per week be paid directly to Matt.

    Traditionally, a duty to contribute towards child support

has been imposed based upon the ability of the parents to pay

and the child's needs.    Johns v. Johns, 208 N.J. Super. 733, 735

                                  26                        A-5249-07T2
(Ch. Div. 1985).    N.J.S.A. 2A:34-23(a) provides that a court, in

determining the amount of child support to be paid by the

supporting spouse, shall consider ten specific factors,

including the needs of the child, the parents' standard of

living and economic circumstances, the parents' sources of

income and earning capacities and any other factors the court

deems relevant.    Moreover, our court rules contain guidelines to

be applied by a court in determining the level of child support.

Child Support Guidelines, Pressler & Verniero, Current N.J.

Court Rules, Appendix IX-A to R. 5:6A at 2429 (2011).

    In establishing defendant's child support obligation to

Matt, the trial judge imputed income of $27,500 ($529 per week)

to plaintiff.   The trial judge established defendant's gross

income at $1139 per week, his actual earnings when the judgment

was entered.    Applying the Child Support Guidelines, the judge

set defendant's obligation to Matt at $170 per week.

    As we noted in Diemer I, we found that the trial judge

erred in two respects - plaintiff's Bachelor degree and the

failure to impute income to defendant.   We remanded for a

reassessment of child support "in light of plaintiff's actual

circumstances," and given "defendant's actual present earning

power."   Diemer I, supra, A-2895-02 (slip op. at 25).

    In making his salary and college degree findings, the judge

concluded that "[t]he child support guidelines do not apply

                                 27                          A-5249-07T2
since Matthew is in college and does not reside with the

plaintiff.   No additional child support is warranted.   The

defendant shall pay direct support to Matthew in the amount of

$100.00 per week [and] buy groceries in an amount of at least

$50.00 per week[.]"

    We are hampered in our analysis by the absence of findings

addressing the statutory factors relevant to Matt's and

defendant's future circumstances, except to note the parties'

respective incomes and Matt's status as a college student.     This

failure necessitates a remand.

    Moreover, we ordered a reassessment of defendant's then-

$190 a week child support obligation from the judgment of

divorce until at least the remand hearing based on the two

errors noted above.    Rather than recalculating defendant's

obligation during that time frame, the judge relied on the

circumstances then before him, i.e., that Matt was in college

and that plaintiff would earn $50,000 to $55,000 per year in


    The judge did not recalculate defendant's support

obligation to Matt from the period between the December 2002

judgment and the remand hearing in May 2008.   During at least

part of that period, Matt was not in college but was instead

living at home (i.e., he was only a sophomore at Stevens as of

the remand hearing).   Further, plaintiff did not obtain her

                                 28                         A-5249-07T2
Bachelor's degree until 2004, and did not graduate with her

Master's degree until May 2007.    During that time frame,

plaintiff was entitled to a recalculation of child support for

Matt as we had previously ordered.

     Child support is for the benefit of the child.     Pascale v.

Pascale, 140 N.J. 583, 591 (1995).     The judge's decision to make

child support payable directly to Matt is reasonable given his

current circumstances, and the limited contribution plaintiff

actually makes towards his needs at the present time.    We find

no error in that determination.

     As to the period between December 2002 and May 2008, we

remand for recalculation of defendant's support obligation

considering the circumstances that existed during that time

frame.   The judge should consider all of the statutory criteria

described at N.J.S.A. 2A:34-23(a).     In addition, we cannot over-

emphasize the necessity of compliance with Rule 1:7-4, and the

need to make the requisite findings as to the statutory factors

relevant to child support from the remand decision in May 2008

going forward.

     As to Jessica, we conclude that a reversal and remand is

appropriate.4    While we agree that Jessica was emancipated, we

disagree that the emancipation event took place in 2002.     In

  The issue of reimbursement for Jessica arose in the second
remand hearing.

                                  29                         A-5249-07T2
general, a parent is under no duty to contribute to the support

of an emancipated child.      Gac v. Gac, 186 N.J. 535, 542 (2006).

The Court has held that emancipation can occur upon the child's

marriage, induction into the military, by court order based on

the child's best interests or by attainment of an appropriate

age.    Ibid.; Newburgh v. Arrigo, 88 N.J. 529, 543 (1982).

Attainment of the age of majority, eighteen, establishes prima

facie, but not conclusive, proof of emancipation.      Whether a

child is actually emancipated at age eighteen depends upon the

facts of each case.       Dolce v. Dolce, 383 N.J. Super. 11, 17

(App. Div. 2006); Patetta v. Patetta, 358 N.J. Super. 90, 93

(App. Div. 2003).

       The needs of the child "are determinative of the duty of

support."    Id. at 94.    The essential inquiry is whether the

child moved beyond a parents' sphere of influence and

responsibility and obtained independence status.      Dolce, supra,

383 N.J. Super. at 17-18.      Relevant circumstances to evaluate

include the needs, interests, and independent resources of the

child, the family's expectations and the parties' financial

ability.    Newburgh, supra, 88 N.J. at 545; Dolce, supra, 383

N.J. Super. at 18.

       We have held that a child is not emancipated even if the

child takes a relatively brief hiatus from college, during which

the child worked full-time, because the child had not yet moved

                                    30                        A-5249-07T2
beyond his or her parents' sphere of influence.   Keegan v.

Keegan, 326 N.J. Super. 289, 294-95 (App. Div. 1999).     Moreover,

residence by a minor separate from his parents, without more,

does not necessarily result in emancipation.   Filipone v. Lee,

304 N.J. Super. 301, 311 (App. Div. 1997).

    We have previously described the circumstances related to

Jessica's education and based on these facts, the judge

concluded that Jessica was emancipated as of the divorce trial,

and was not entitled to child support or a contribution from

defendant for her college or unreimbursed medical expenses.     He

specifically found that, in contrast to Matt, Jessica was not

awarded child support in the divorce judgment, defendant did not

have to pay for her life insurance, and defendant could not take

Jessica as a child dependent.

    However, the divorce judgment also provided that if Jessica

started at SCCC in the fall of 2002 as she planned, defendant

would have had to provide medical insurance for her and might

have had to pay "additional support for educational assistance"

if an application for such relief was filed.   Plaintiff filed an

application in May 2004, and in July 2004, the trial judge

required that a hearing be conducted on that issue.

    The judge noted that there was a rebuttable presumption

that Jessica was emancipated at age eighteen and reiterated that

when the divorce judgment was entered in 2001, Jessica was

                                31                          A-5249-07T2
emancipated.   He concluded she was entitled to no support.      He

also noted that N.J.S.A. 2A:17-56.23(a), which he interpreted to

prohibit retroactive child support, further supported his


    The judge acknowledged that plaintiff provided Jessica with

continued support after 2002, but found that it was "voluntary"

and could "not be used as a factor in determining that she was

not emancipated."

    He also concluded that plaintiff was not also entitled to

reimbursement for Jessica's college or unreimbursed medical

expenses given her emancipation.     In addition, the divorce

judgment did not require defendant to pay for Jessica's

unreimbursed medical expenses and "there was no proof defendant

could have added [Jessica] back on his [medical insurance]

policy" after 2002.

    The divorce judgment provided that Jessica might be

entitled to additional support or educational assistance upon

proper application if she actually attended SCCC.      We interpret

that provision so as to permit an application for additional

support if Jessica attended college.     She did so.   Jessica

attended SCCC beginning in the spring of 2002, and in July 2004,

upon her application, the trial judge ordered that the issue of

a contribution to Jessica's college expenses be reconsidered at

a hearing.   Our disagreement with the remand judge is the

                                32                           A-5249-07T2
conclusion that because Jessica was apparently deemed

emancipated in the December 2002 divorce judgment, she was not

entitled to any support from that year forward.

    Until Jessica left for Indiana in 2004, she was not

emancipated.   She was living at home at the time the divorce

judgment was entered, and had actually started classes at SCCC

that prior spring.     From that time until she graduated from SCCC

in the spring of 2004, plaintiff supported Jessica, except for

the minor wages Jessica earned in 2002 and 2003 and except for

college tuition.   Jessica had not yet moved beyond the sphere of

plaintiff's influence and responsibility and obtained

independence status.    Jessica had few independent resources,

needed plaintiff's assistance to live and deal with her

illnesses, and attended SCCC never holding a full-time job.

     We conclude that Jessica was not emancipated as of the

December 2002 divorce judgment.     The issue of child support must

be reconsidered.   Upon remand, the judge shall consider

defendant's obligation to contribute towards Jessica's college

expenses at SCCC as well as her unreimbursed medical expenses

through her graduation from that school in the spring of 2004.

    Finally,   we conclude that this relief is not statutorily

barred.   N.J.S.A. 2A:17-56.23(a) provides that

          [n]o payment or installment or an order for
          child support, or those portions of an order
          which are allocated for child support

                                  33                        A-5249-07T2
           established prior to or subsequent to the
           effective date of P.L. 1993, c.45 (C.2A:17-
           56.23a), shall be retroactively modified by
           the court except with respect to the period
           during which there is a pending application
           for modification, but only from the date the
           notice of motion was mailed either directly
           or through the appropriate agent.

    This statute was adopted to avoid the financial hardship

imposed on a family created by retroactive modification, J.S. v.

L.S., 389 N.J. Super. 200, 206 (App. Div. 2006), certif. denied,

192 N.J. 295 (2007), and to "remedy the loopholes of interstate

child support enforcement laws in order to benefit children, not

eliminate any perceived unfairness[.]"    Keegan, supra, 326 N.J.

Super. at 294.    Nothing in the statute suggests that it was

adopted to protect parents "'from retroactive modifications

increasing support obligations where equitable.'"    J.S., supra,

389 N.J. Super. at 207 (quoting Keegan, supra, 326 N.J. Super.

at 294).

    We further conclude that Jessica was emancipated once she

left for Indiana.    She obtained living quarters by acquiring an

internship at IU, paid for almost all of her educational costs

through loans and grants she received, and eventually met and

married her husband, with whom she was living at the second

remand hearing.    While plaintiff did contribute to her needs,

Jessica had moved outside of the sphere of plaintiff's influence

upon her relocation to Indiana and marriage.

                                 34                        A-5249-07T2
    As to Jessica's total college expenses, mainly the $25,000

in loans, on remand, the judge shall consider whether the

factors in Newburgh, supra, apply here and whether defendant has

any obligation to reimburse for such costs.    We make no finding

as to that issue.

    We recognize that the judge in the second remand hearing

did not apply these factors but that was based on a finding of

emancipation in 2002.   This issue should be revisited on remand.

    Plaintiff next asserts that the judge erred in requiring

the immediate sale of the marital residence, because it would

provide security for any future obligation imposed on defendant

following the remand hearing.    Moreover, plaintiff argues that

she should be allowed to live there until Matt graduates from

college, and that defendant should contribute one-half of the

carrying costs.   We disagree.

    The marital home was purchased during the marriage and that

the parties agreed that the value was slightly over $200,000.

The judgment of divorce required that the home and the adjacent

vacant lake lot be sold immediately, because the real estate

market at that time was at a high point.    The parties could

maximize the value of the home by selling it immediately.    The

net proceeds were to be evenly divided between the parties.

    We reversed, because:    (1) there was little equity in the

home, and thus the trial court's rationale was flawed; (2) it

                                 35                         A-5249-07T2
was unlikely that plaintiff could obtain comparable housing for

her and her children at a similar cost; and (3) plaintiff might

be awarded defendant's interest in the house as a credit in

equitable distribution.

    The remand judge ordered the home listed for sale within

thirty days and sold as quickly as possible following the remand

hearing.   In doing so, he noted that Matt, nineteen years old by

then, lived at the home only "for short periods and some

weekends."   Moreover, the "sale of the home is reasonable and is

justified base[d] upon the economic circumstances and the age of

the unemancipated child [Matt] and the status of the parties."

    The court required the couple to evenly split the costs and

taxes on the home pending its sale; however, plaintiff was

responsible for the utilities on the home, and for all repair

costs less than $500.

    The remand judge's decision was correct.   Plaintiff's

reliance on Diemer I is misplaced, since her circumstances had

changed since that opinion was rendered.   Specifically, by the

time of the remand hearing, plaintiff conceded that she was

essentially living alone in the marital residence most of the

time.   Jessica was living in Indiana and Matt was a full-time

student at Stevens who lived in a dormitory during the school

year, and who had participated in an internship and lived in New

York City during the summer prior to the remand hearing.

                                36                         A-5249-07T2
     Nevertheless, plaintiff wanted to continue living in the

home until Matt graduated from college, claiming that she needed

a place for Matt to store his personal property until he

graduated.   Moreover, by maintaining the marital home, Matt

would remain eligible for financial aid available to New Jersey

state residents.   However, if the house was sold plaintiff would

receive one-half of the net proceeds.5

     Plaintiff also claims that preserving the marital house was

the only way to ensure that defendant honored his continuing

financial obligations.   Plaintiff can move in the Family Part if

she feels she needs security, but precluding sale of the house

is independent of that issue.

     Plaintiff also claims that the court erred in requiring her

to be solely responsible for association dues and repairs

costing less than $500 pending the home's sale.   She relies on

Diemer I, which she claims required "that the parties be equally

responsible for the costs associated with the former marital

residence until its sale."

     We held only that defendant "should have been directed to

contribute towards all of the expenses associated with the

marital home . . . and that [plaintiff] is entitled to

  Plaintiff was offered the opportunity to purchase defendant's
interest in the home. Although initially rejected, that
opportunity may still be extant.

                                37                          A-5249-07T2
reimbursement for any monies she expended on [defendant's]

behalf."   The matter was remanded for an award to plaintiff "of

the amounts due in connection with . . . the mortgage and the

marital home expenses."    Our decision was directed at the

repayment to plaintiff of any money she had previously spent on

home expenses, and did not require defendant to make continued

payments on the house in the future.

    Finally, we reject plaintiff's argument that the judge

erred in denying her claim for one-half of the value of the

Georgia timeshares the couple owned during the marriage.

    N.J.S.A. 2A:34-23.1(i) (emphasis added) requires a court to

consider the "contribution of each party to the acquisition,

dissipation, . . . or appreciation" in the value or amount of

property subject to distribution.      The concept of "dissipation"

of assets is "a plastic one, suited to fit the demands of the

individual case."     Kothari v. Kothari, 255 N.J. Super. 500, 506

(App. Div. 1992).    The question to be answered in this respect

is "whether the assets were expended by one spouse with the

intent of diminishing the other spouses' share of the marital

estate."   Ibid.    In short, if one party dissipates marital

assets, resulting in a loss of marital property, the "equitable

distribution scheme should be crafted to reflect that result."

Chen v. Chen, 297 N.J. Super. 480, 491 (App. Div. 1997).

                                  38                          A-5249-07T2
    The judge on the second remand found that the parties were

directed to sell the timeshare in the original divorce judgment,

but never did so.   They were ordered to sell the unit again in

July 2004 but again failed to do so.

    The judge found that there was insufficient evidence to

demonstrate that defendant took steps to intentionally diminish

plaintiff's value in the timeshare; in fact, defendant also lost

his one-half interest in the asset, valued at $32,000 at trial.

indicating that the loss of this asset was not intentional on

his part.   We find no error in his determination on this issue.

    We affirm the order of May 22, 2008 ordering the sale of

the marital home and the order of April 9, 2009 denying

plaintiff's claim for one-half of the value of the timeshare.

As to the other issues, we reverse and remand for further

proceedings consistent with this opinion.   We do not retain


                                39                          A-5249-07T2

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