NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-5249-07T2
MARY L. DIEMER,
ROY R. DIEMER,
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
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
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.
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.
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
defendant being the major financial support of the family while
plaintiff has pursued further education towards her chosen new
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
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
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.
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
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
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
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
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
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.
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.
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
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
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.
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
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
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
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
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
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
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.
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
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
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.
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)
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
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
(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
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
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
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
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
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
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
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
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
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.
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.
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
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
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.
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.
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).
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