NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant appeals from a November 21, 2014 post-judgment matrimonial order denying his motion to emancipate the parties' child. On appeal, defendant argues the judge erroneously applied the law governing emancipation and ignored the specific terms of the parties' October 15, 2013 mediated agreement regarding parenting time for their unemancipated child. Defendant also asserts the judge violated the "law of the case" doctrine by ordering he pay unreimbursed dental expenses and a portion of Homeowners Association (HOA) fees. Finally, he maintains the attorney award to plaintiff was unsupported. Following our review, we affirm in part and reverse and remand in part.

These facts are taken from the motion record. The parties were divorced pursuant to a final judgment of divorce (FJOD), filed on June 24, 2011. Defendant filed the current motion in September 2014 seeking to emancipate one of the parties' children, who was then nineteen. The child was enrolled in community college, but not attending on a full-time basis, and had earned only six to nine credits in each of the three prior semesters. Further, defendant certified the child had been working thirty to thirty-five hours each week for eight months. Defendant also asked to recalculate child support for the benefit of the parties' youngest, unemancipated child.

Defendant's motion additionally requested an order memorializing what he maintained was the current parenting time arrangement previously set forth in a mediated agreement. At the time the parties attended parenting time mediation, defendant was permitted visits with the child for three hours every other weekend and at other times as the parties agreed, supervised by his parents. The order also precluded smoking in the residence during the visitation because the child suffered from asthma. Following mediation, the parties agreed to continue the supervised visits and, over the ensuing three months, allow additional parenting time one day per week, and at the conclusion of the three-month period, "it [wa]s expected that [defendant] w[ould] have over nights." The parties also consented to share holidays and each would enjoy two weeks vacation time.

Six months before he filed the motion now under review, defendant stated he was enjoying parenting time every other weekend and requested an order confirming this schedule. He also sought vacation time, and requested plaintiff inform him if she and the child were going out of the country.

Plaintiff opposed defendant's motion and filed a cross-motion seeking a lump sum payment for the older child's college tuition costs, an increase in and enforcement of child support for both children, reimbursement of uninsured medical and dental costs, payment of half the HOA fees and a $7342 award of counsel fees and costs.

Plaintiff certified the older child lived at home and remained financially dependent upon her. She admitted he worked part-time but insisted he earned gross wages of approximately $200 per week and could not independently support himself. Plaintiff also urged his child support continue, suggesting the only reason the child was not attending college full-time was because of financial hardship caused by defendant's outstanding $24,000 child support arrearages.

Plaintiff also thought child support should be increased because defendant's income had increased and she also requested defendant contribute to the nineteen-year-old's college costs. Plaintiff believed defendant should match the tuition amounts she paid to date by solely paying the cost of fifteen credits for two semesters. Finally, she maintained the weekly arrearage payment should be set at $100. Her cross-motion also requested enforcement of the FJOD's provision requiring defendant share the outstanding uninsured medical, orthodontic, and dental related costs for both children that had been accumulating since June 24, 2011, and pay her counsel fees and costs.

With regard to parenting time, plaintiff certified defendant never followed the terms of the mediated agreement, as he never engaged in weekday parenting time during the designated three-month period. She asserted defendant only saw the child three to four times in six months and, during those months spent only five overnights with the child. Plaintiff believed defendant's conduct showed he was unwilling to commit to a consistent schedule, noting he participated in the child's activities on a limited basis, did not assist him with homework or attend the child's school functions. Consequently, plaintiff asserted no change in parenting time should occur until defendant complies with the mediated agreement; that is, engages in weekday parenting time one day a week for three months. Further, she sought enforcement of a smoking ban because defendant and his girlfriend smoke. Plaintiff opposed a two-week vacation period as not in the child's best interests because of his fragile relationship with defendant. She suggested the child was reluctant to spend more than twenty-four hours with defendant and wanted only to attend vacation for perhaps a couple of days, if accompanied by an older sibling. Plaintiff agreed to incorporate the court's standard holiday schedule, except for Christmas, which the parties agreed would always be at her home and Christmas Eve would be at his home.

Plaintiff sought to impose additional prerequisites to increased parenting and vacation time to include proof defendant's driving privileges were current, he continues to abstain from alcohol, and submits to a substance evaluation.

Following oral argument, the judge issued an order explaining its rationale in a lengthy written order. The judge denied emancipation, without prejudice.1 Noting the child had not attended school on a full-time basis, the judge cited "equitable considerations" to suggest defendant has the ability to contribute to the child's college tuition costs. The judge modified child support for the two children and added to the weekly arrearage payment. Defendant also was ordered to reimburse his share of the children's medical and dental expenses, payable over twelve months; the orthodontic costs were denied without prejudice.

Defendant was ordered to contribute a lump sum to the nineteen-year-old's college tuition costs for the upcoming semester within thirty days, and again for the following semester contingent on proof of the child's full-time college enrollment, provision of transcripts, and an application for financial aid, unless plaintiff verified her application would have an adverse financial impact. The tuition payments would reduce the outstanding child support arrearages.

Addressing parenting time, the judge concluded the mediated parenting time agreement was ambiguous and ordered the parties to participate in the court's custody neutral assessment program, which provides a custody evaluation without testing. The assessment would consider defendant's vacation time request and plaintiff's requests for proof of defendant's current driving privileges and sobriety. Pending that review, a parenting time schedule, including one evening per week and one overnight every four weeks was imposed without prejudice. During defendant's parenting time, the ban on smoking in any residence was reaffirmed and expanded to include any automobile. Additional holiday parenting time was provided but vacation time was denied.

The judge decided defendant was obligated to reimburse plaintiff $1,000 of past HOA fees, pursuant to the terms of the FJOD. Repayment was ordered to be made in four installments over twelve months. Finally, plaintiff's application for counsel fees was granted in the amount of $2,500, payable by defendant at the rate of $100 a month.

On January 12, 2015, the judge supplemented his factual findings regarding the counsel fee award. R. 2:5-1(b). The written submission determined defendant's ability to pay fees was greater, in part, because he was self-represented while plaintiff engaged counsel. Further, there was no finding either party acted in bad faith or advanced unreasonable positions and the final results were mixed. Finally, the court determined defendant shared his living expenses with another and had accumulated significant child support arrears that impaired plaintiff's financial ability to pay for her attorney.

Defendant's appeal challenges the denial of the application for emancipation and overnight parenting and vacation time. He also appeals from those provisions ordering payment of dental costs and HOA fees as contrary to the FJOD. Lastly, he maintains the award of counsel fees was erroneous and unsupported.

We start with the principle that all matrimonial orders shall be accompanied by the underlying factual findings and reasoning supporting the legal conclusions reached. Rule 1:7-4(a) (requiring a court, "by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon ... on every motion decided by a written order that is appealable as of right"). We have repeatedly reminded trial courts of their factfinding obligation, noting factfinding "is fundamental to the fairness of ... proceedings and serves as a necessary predicate to meaningful [appellate] review." R.M. v. Supreme Court of N.J., 190 N.J. 1, 12 (2007). "Naked conclusions do not satisfy the purpose of R[ule] 1:7-4. Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions." Curtis v. Finneran, 83 N.J. 563, 569-70 (1980). Importantly, the necessity of factfinding on issues in dispute allows the parties and this court to "be informed of the rationale underlying his [or her] conclusion[s]." Esposito v. Esposito, 158 N.J.Super. 285, 291 (App. Div. 1978). Failure to perform that duty "constitutes a disservice to the litigants, the attorneys and the appellate court." Kenwood Assocs. v. Bd. of Adj., 141 N.J.Super. 1, 4 (App. Div. 1976).

We defer to a judge's findings unless they are demonstrated to lack support in the record or are inconsistent with the substantial, credible evidence. Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 483-84 (1974). Although this court does not defer to a judge's legal conclusions, "we do not second-guess ... findings and the exercise of ... sound discretion" by our Family Part judges. Hand v. Hand, 391 N.J.Super. 102, 111 (App. Div. 2007).

Guided by these standards, we first examine the denial of defendant's application to emancipate the nineteen-year-old child. Even though the application was denied without prejudice, the judge's determination appeared to accept plaintiff's assertions the nineteen-year-old had not "moved `beyond the sphere of influence and responsibility exercised by a parent'" or obtained "an independent status of his or her own." Filippone v. Lee, 304 N.J.Super. 301, 308 (App. Div. 1997) (quoting Bishop v. Bishop, 287 N.J.Super. 593, 598 (Ch. Div. 1995)). Plaintiff's factual support included that the child lived in her home, worked part-time and attended school part-time. The stated limited analysis is insufficient to rebut the statutory presumption of emancipation and support the denial of defendant's request. Consequently, the order denying emancipation must be reversed.

The critical starting point in this analysis is the statutory presumption of emancipation occurs when a child reaches the age of majority, as defined in N.J.S.A. 9:17B-3. Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). While emancipation does not occur automatically upon a child's eighteenth birthday, the child's age establishes "prima facie, but not conclusive, proof of emancipation." Ibid.; Gac v. Gac, 186 N.J. 535, 542 (2006). "Once the presumption is established, the burden of proof to rebut the statutory presumption of emancipation shifts to the party or child seeking to continue the support obligation." Llewelyn v. Shewchuk, 440 N.J.Super. 207, 216 (App. Div. 2015).

Rebutting the presumption of emancipation for a child who has reached eighteen years old, with the correlative termination of the right to parental support, becomes fact-sensitive. Newburgh, supra, 88 N.J. at 543. "Emancipation of a child is reached when the fundamental dependent relationship between parent and child is concluded, the parent relinquishes the right to custody and is relieved of the burden of support, and the child is no longer entitled to support." Filippone, supra, 304 N.J. Super. at 308. The determination can only be made by critical evaluation of all prevailing facts and circumstances, including but not limited to proof of "the child's needs, interests, ... independent resources, the family's reasonable expectations, and the parties' financial ability, among other things." Dolce v. Dolce, 383 N.J.Super. 11, 18 (App. Div. 2006) (citing Newburgh, supra, 88 N.J. at 545).

Importantly, the critical evaluation required for emancipation determinations often necessitates a plenary hearing, especially "when the submissions show there is a genuine and substantial factual dispute[,]" which the trial court must resolve. Hand, supra, 391 N.J. Super. at 105; Tretola v. Tretola, 389 N.J.Super. 15, 20 (App. Div. 2006) (reversing motion on emancipation because the court "failed to recognize there were material facts in dispute and evidence beyond the motion papers necessary for resolution of the matter," requiring a plenary hearing); see also Segal v. Lynch, 211 N.J. 230, 264-65 (2012) ("As is particularly the case in matters that arise in the Family Part, a plenary hearing is only required if there is a genuine, material and legitimate factual dispute.").

One specific circumstance recognized as defeating the presumption of emancipation of a child over age eighteen results when the child is enrolled in a full-time higher education course of study. See Gac, supra, 186 N.J. at 543 ("The Legislature and our courts have long recognized a child's need for higher education and that this need is a proper consideration in determining a parent's child support obligation."); Patetta v. Patetta, 358 N.J.Super. 90, 94 (App. Div. 2003) ("[w]hile parents are not generally required to support a child over eighteen, his or her enrollment in a full-time educational program has been held to require continued support.").

In this matter, defendant established the child was over eighteen and not a full-time student. These uncontroverted facts shift the burden to plaintiff to demonstrate the child is not emancipated. Plaintiff could not rebut the presumption merely by claiming the child was dependent and attending community college part-time while living in her home. However, her pleadings urge the child's part-time education status resulted solely from economic necessity and further argued the child remained dependent.

Our review of the record reveals it offers inconclusive proof to defeat emancipation. Indeed, no explanatory information regarding individual expenses paid by or for the child is recited and there is nothing to demonstrate why plaintiff's income along with the child's, which when annualized was at least $10,500, was insufficient to expend $23 per week, the cost of one additional course per semester. Further, plaintiff's bald assertion she should not be required to apply for financial aid because it would cause her to be penalized is unaccompanied by any factual or legal basis.

Our review of this record strongly suggests a plenary hearing is required, at which plaintiff must prove her claims of financial hardship and the child's dependence. In the event of his failure to rebut the statutory presumption of emancipation, an order terminating child support must be entered. In the event emancipation is upheld, child support must be recalculated from the date of emancipation.2

Defendant next challenges the court's failure to follow the terms of the mediated parenting time agreement and its imposition of the order requiring him to attend a custody neutral assessment. We agree this was erroneous. The provision for an additional custody assessment was contingent on the parties' inability "to reach an agreement at mediation," a critical fact overlooked by the judge. The mediated agreement fully addresses defendant's gradual modification in parenting time. Both parties agree he now enjoys unsupervised overnight parenting time. That plaintiff wants to revert to one weekday and one weekend cannot alter the reality that the child and defendant have moved beyond the need to strictly limit parenting time. Plaintiff's concern for the child's continued safety as defendant reengages may legitimately result from the child's expressions of disquiet. However, since mediation, other than in respect to the child's activity schedule, the record provides no basis justifying these concerns. The child is now almost sixteen and the passage of time may further obviate defendant's objections. Nevertheless, the need for an additional evaluation is not supported.

Consequently, we vacate the order reversing the provisions for a custody neutral assessment and remand this issue for further evaluation in light of the very clear provisions of the mediated parenting time agreement and, if determined helpful, a child interview. R. 5:8-6.

As to the ordered payment of his proportionate share of uninsured health-related costs incurred for the children, defendant's objection is directed to including dental costs, and particularly a bill for teeth whitening. He also notes the court failed to recognize child support includes a $250 per child per year sum for health related expenses, which must reduce the sums sought. Although we reject as unavailing the contention defendant has no obligation to pay the children's dental costs, we conclude the remaining objections in this regard have merit and must be addressed on remand.

The children's dental expenses are in the nature of support, which both parties should be responsible to satisfy. See Colca v. Anson, 413 N.J.Super. 405, 421 (App. Div. 2010) (enforcing obligor's responsibility to satisfy an "obligation [that] is in the nature of support for an unemancipated child," despite the obligee's "failure to abide strictly by the procedures" to obtain payment). However, absent the parties' agreement or proven medical necessity, teeth whitening is elective and cosmetic and not a shared uninsured medical expense. Furthermore, paragraph 8 of the consideration for use of the Child Support Guidelines states support awards under the Guidelines include "unreimbursed health care up to and including $250 per child per year ..." Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at www.Gannlaw.com (2016). Thus, plaintiff's claims for allocating uninsured medical and dental costs must be reduced by this sum.

We also reject defendant's challenge to the HOA fees. The FJOD stated defendant "shall be responsible for [half] of all fees related to the [marital home]," which include the unpaid HOA fees. Although the FJOD did not include an amount, we conclude plaintiff's proofs of the obligation supported the judge's conclusion.

Finally, defendant seeks to vacate plaintiff's award of attorney's fees. New Jersey has a strong policy disfavoring the shifting of attorneys' fees. McGuire v. City of Jersey City, 125 N.J. 310, 326 (1991). We do not abide the proposition that "loser pays" and generally each party should pay his or her own attorneys' fees. Rendine v. Pantzer, 141 N.J. 292, 322 (1995).

Certain exceptions to this principle are recognized in our statutes and court rules. Pursuant to N.J.S.A. 2A:34-23,

In addition, Rule 5:3-5(c) lists the following considerations as impacting a fee award:

See also Addesa v. Addesa, 392 N.J.Super. 58, 78 (App. Div. 2007) (stating factors).

The fee award here was not premised on a disparity in the parties' incomes, see Argila v. Argila, 256 N.J.Super. 484, 494 (App. Div. 1992), which were virtually identical. Also, neither party demonstrated bad faith conduct, Williams v. Williams, 59 N.J. 229, 233 (1971). Rather, in his amplification of findings, the judge found defendant was in a slightly better financial position and therefore, had an ability to pay plaintiff's fees because: (1) he had no debts; (2) he did not hire counsel, yet plaintiff did; and (3) he lived with another and plaintiff did not. Each of these findings must be set aside.

First, as to debt, the judge ignored defendant's almost $24,000 in child support arrears and any ramifications caused by his bankruptcy filing. Second, we reject any rationale suggesting a party of modest means, who determines he or she is unable to hire counsel to pursue relief as a self-represented litigant, should be considered as in a financially superior position to the opposing party who determines he or she has the wherewithal to engage counsel. A decision to hire counsel carries a presumption of the ability to pay counsel. Third, no evidence supports the finding defendant's girlfriend had an ability to contribute to his expenses. Also, the judge ignored whether the adult children living with plaintiff were able to contribute to the household expenses. Finally, we have reversed several provisions of the November 21, 2014 order initially favoring plaintiff because defendant's arguments were meritorious and not properly considered by the judge. This strengthens defendant's good faith conduct. Once these facts are evaluated, the balance between the parties changes significantly. Consequently, support for an award of counsel fees and costs is unsupported and must be reversed.

In summary, we reverse the denial of emancipation and remand for a plenary hearing regarding plaintiff's otherwise general claims of financial hardship offered to rebut the presumption of emancipation imposed by N.J.S.A. 9:17B-3. We also vacate the order requiring the parties to attend a custody neutral assessment and remand for review of parenting and vacation time as provided in the parties' October 15, 2013 mediated parenting time agreement. We affirm the order requiring defendant to satisfy his share of the children's uninsured medical and dental expenses, except we reverse the inclusion of the cost of teeth whitening absent medical necessity and require the sums due be reduced by $250 per child per year as provided by the Child Support Guidelines. We also affirm defendant's obligation to satisfy his share of the HOA fees. Finally, we reverse the award of counsel fees and costs as unfounded.

Affirmed in part, reversed in part and remanded.