Wood, Wm. Fillmore, J.c.c. (temporarily assigned).
[99 NJSuper Page 257] This case raises the question of whether this court has authority to require a divorced husband, on motion of the wife, to contribute toward the college expenses of an 18-year-old son in the mother's custody. The New Jersey law on the question is not entirely certain. Our Supreme Court has never
ruled thereon, and there is room for disagreement as to the meaning of the decisions of the former Court of Errors and Appeals and the Appellate Division of the Superior Court.
Final judgment of divorce was entered in this case on June 10, 1967. The preceding judgment nisi, dated March 9, 1967 and adopting the provisions of an earlier agreement between the parties, gave the plaintiff wife custody of the two minor children of the marriage, Jeffrey and Anne, then 18 and 11 years of age, respectively, and ordered the defendant to pay plaintiff $25 a week for the support of each of them and $50 a week for support of herself. A third child, John, was 21 and emancipated. At the time of the judgment nisi Jeffrey was a high school senior in Pingry School, a private institution, and John was a college senior at Princeton University. Both boys graduated at the end of the then current school year. In September 1967 Jeffrey entered Lafayette College.
By her motion, returnable November 3, 1967, plaintiff sought an order requiring defendant to pay for Jeffrey's college tuition or, in the alternative, to pay increased support for her and the two minor children so that she herself would be able to pay the tuition. In her supporting affidavit she alleged that at the time of the judgment nisi defendant had promised to contribute voluntarily a minimum of $1,000 a year, and more if his financial circumstances improved, toward Jeffrey's tuition and other college expenses and had assured her that it would not be necessary to provide for such expenses by court order. Defendant filed an answering affidavit claiming that he had stated only that he would voluntarily contribute something toward the college expenses if he was "financially able to do so." I am unable, on the basis of the affidavits alone, to determine the credibility of these inconsistent statements. However, in view of the ruling of law and finding of fact set forth herein, it is unnecessary to do so. Even if I accepted plaintiff's version of the conversation, I would be unable to say that the conversation amounted to a legally binding agreement. Hence, for the purpose of this decision, I shall assume that there was no such agreement.
Incidentally, I am of the opinion that there can be no valid legal distinction between ordering defendant to pay college expenses directly and ordering him to do so indirectly under the guise of increased support.
Defendant opposed the motion, contending that (1) this court lacks the power to require him against his will to pay college expenses, and (2) even if the court has that power, his financial condition is such that he should not be called upon to contribute for Jeffrey's support any more than the sum previously ordered. Defendant did not question Jeffrey's scholastic aptitude.
At the conclusion of the oral argument on the motion I determined that, considering defendant's financial assets and earning capacity, he was well able to contribute toward college expenses despite his claim of limited current income. I ruled that he must pay half of such expenses or $1,500 a year, whichever was lesser, unless he was shielded from such an obligation by the law of this State. I reserved decision on the law and instructed the attorneys to submit memoranda thereon. I have now received and carefully considered their memoranda.
There is no published decision by a New Jersey appellate court which required a father to pay college or professional school expenses. A few cases have held that, under the circumstances there present, the father need not pay such expenses and thus indicated, at least by implication, that payment of such expenses may be ordered under different circumstances. Streitwolf v. Streitwolf, 58 N.J. Eq. 570 (E. & A. 1899); Rufner v. Rufner, 131 N.J. Eq. 193 (E. & A. 1941); Jonitz v. Jonitz, 25 N.J. Super. 544 (App. Div. 1953). Cf. Foote v. Foote, 68 A. 467 (Ch. 1908), not officially reported, where the court, by implication, indicated that college expenses might be required of the father after the children had completed their pre-college preparation. Cf. also Ziesel v. Ziesel, 93 N.J. Eq. 153 (E. & A. 1921), wherein the court mentioned the father's limited income as one of the reasons for not requiring him to pay the expenses of his son
at a boarding high school. But Cf. Werner v. Werner, 7 N.J. Super. 229 (App. Div. 1950).
In Streitwolf, decided in 1899, the Court of Errors and Appeals, the State's then highest court, reversed an order of the trial court which had directed the father to pay law school expenses for a 20-year-old son. This is the first ...