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Enrico v. Goldsmith

Decided: January 10, 1990.

THOMAS J. ENRICO, PLAINTIFF-APPELLANT,
v.
CAROLYN GOLDSMITH (FORMERLY CAROLYN ENRICO), DEFENDANT-RESPONDENT



Pressler, Long and Landau. The opinion of the court was delivered by Landau, J.A.D.

Landau

This is an appeal by plaintiff Thomas J. Enrico from the denial of a motion to reconsider a post-divorce modification order. Enrico was divorced from defendant Carolyn Goldsmith (formerly Enrico) in 1981. There are two children, Randi, now age 19, and Pamela, now 15.

Enrico challenges the order which requires that he pay two thirds of Randi's college expenses up to $5,200 per year and 100% of those expenses in excess of $5,200, subject to a limited reduction in the amount of his support for Randi when she is attending a college with yearly costs in excess of $5,200. Enrico's 1987 gross income as a high school principal was $57,700. Both he and Goldsmith have remarried. Custody is nominally joint, but Goldsmith has primary custody of the children. She reported a gross income of $23,845 in 1987 from unspecified employment with a theatrical lighting company.

The original property settlement agreement, incorporated in the judgment of divorce, provided that Enrico should be involved in the children's lives, including matters such as education, health and social development. In accordance with the agreement, he paid $180 per week in child support, plus 75% of medical bills unreimbursed after coverage under his basic and major medical coverage. The agreement provided that:

The husband and wife shall consult upon the higher form of education to be attended to by each child. The parties agree that their own financial situation shall be taken into account, and each party agrees, that to the extent of his or her financial ability, to contribute to the cost of same, that they shall do so. The financial ability to pay and to contribute shall be determined at the time the need arises.

The present issue arose when Enrico moved for an order appointing a family counselor to "attempt to enable the parties and . . . [Randi] to discuss the child's attendance at college, choice of college and; other relevant details . . .," to set forth the respective responsibility of each party for college costs, and to allocate his own support obligation towards Randi's college expenses.

Although Randi's final college choice, and consequently the projected expenses, fluctuated during the course of the proceedings below, it appears clear that her college costs are about $10,000 per year. Enrico originally sought an order directing Randi to apply to a lower cost state college (See, e.g., Nebel v. Nebel, 99 N.J. Super. 256 (Ch.Div.1968), aff'd 103 N.J. Super. 216 (App.Div.1968)), but this issue has not been pursued on appeal. Randi now attends Southern Connecticut University, and the order which the trial judge declined to materially modify provides for Enrico to pay two thirds of Randi's college costs up to $5,200, plus 100% of the excess college cost. The latter condition was partially offset by reducing Randi's weekly support from $90 to $45. There was a modification requiring Randi to apply for scholarship and loan aid.

Enrico submitted financial information which showed a net worth of about $3,000. He complained of Goldsmith's failure to submit information as to her assets which include ownership of a late model Mercedes Benz and half interest in a $400,000 residence and a shore vacation home. Goldsmith argued that the extent of her assets should not be a factor in determining where to place the principal burden of paying for Randi's college costs. She pointed to the fact that even when Enrico's support payments were added to her available income, and deducted from his income, she earned one third less than he.

Accordingly she urged that two thirds of Randi's college expenses should be paid by Enrico, and that neither party should be required to sell assets to finance a child's college costs.

While recognizing that the earnings of Goldsmith's present husband should not be considered when fixing her contribution to child support, Enrico complained that her declared annual expenses included substantial payments on the Mercedes and that her residential mortgage payments were directly attributable to the husband's substantial lifestyle. But for that costly lifestyle, Enrico urged, Goldsmith would have substantial funds available to assist in meeting Randi's college costs, notwithstanding income differential.

On appeal Enrico notes that although Goldsmith had herself requested a two thirds/one third allocation of Randi's education expenses, the result of the present order is to impose an even more disproportionate burden upon him because the $45 weekly support reduction is far less than the impact of paying 100% of all college expenses over $5,200. He argues that the trial judge made no findings of fact in fixing the college expense obligation, that it was error not to consider Goldsmith's substantial net assets when making the allocation, and that, in these circumstances, requiring him to contribute over 40% of his income toward child support was an abuse of discretion. He further contends that a plenary hearing should have been conducted respecting the parties' assets and ability to pay. Enrico further requests that we exercise original jurisdiction to ...


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