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Finger v. Zenn

December 12, 2000

CAROL FINGER,
PLAINTIFF-RESPONDENT,
V.
ROGER ZENN,
DEFENDANT-APPELLANT.



Before Judges A. A. Rodr¡guez, Collester and Fall.

The opinion of the court was delivered by: Collester, J.A.D.

Argued November 8, 2000

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County.

The central issue of this appeal is whether a divorced spouse can be compelled to contribute to the college education of a child at a private college. Under the factual circumstances of this case we affirm the order directing defendant to make an equal contribution.

Defendant Robert Zenn appeals from those portions of a post-judgment order of the Family Part directing him to pay the following:

(1) fifty percent of the cost of parties' children for a four year college education for each child, including "the cost of tuition, room and board, books, fees and laboratory expenses"; (2) fifty percent of his son David's "matriculation at George Washington University, commencing in the summer of 1999"; (3) an amount equivalent to fifty percent of child support for seven months of the calendar year while each child was in college; and (4) counsel fees to plaintiff in the amount of $3,000.

The parties were divorced on August 18, 1989. Two children were born of the marriage: David, born March 6, 1981, and Jacob, born February 25, 1983. At the divorce hearing an oral agreement was placed upon the record, assented to by the parties and incorporated into the judgment. The agreement provided that plaintiff was to retain physical custody of the children and that there was to be "joint decisional custody on important issues regarding the health and welfare of the children." With respect to college education, the agreement as stated on the record was as follows:

Although the children certainly are not at college age-they are eight and six-the parties agree that when, I guess, David first commences college, Dr. Zenn [defendant] is receiving a credit of $25,000.00 to be applied over the four-year period of college education; that credit will execute a non-interest bearing mortgage which may be subordinated and may be substituted should the house be sold in the future. Dr. Zenn is to receive a $25,000.00 credit over the four-year period of time.

The other obligations, with respect to college, since it is anticipated and won't be happening for a number of years from now, $6,000.00 a year might not cover all college costs; that will be a matter between the Zenn's at that time and based upon the existing law at that time. There is no agreement now with respect to the obligations beyond this credit.

David is presently attending George Washington University, and Jacob is a high school senior. Both children have the aptitude for college, and the agreement reflects that both parties expected that their sons would be college educated. Plaintiff attended the University of Pennsylvania, and defendant is a graduate of Lafayette College and New York University Dental School.

In 1998 David applied to various schools including George Washington University, his first choice, and Penn State. Defendant concedes that he discussed different colleges with his son and in fact encouraged him to apply to Lehigh University. Nothing in the record indicates that defendant spoke with David about attending or applying to Rutgers. According to plaintiff's certification, David was told by his high school guidance counselor that it was unlikely that he would be accepted at Rutgers.

Because of the inability of the parties to reach an agreement as to payment for David's college education, plaintiff's attorney proposed an equal division of college expenses. Defendant's attorney responded that defendant agreed to pay only a sum equivalent to fifty percent of the expenses for a full-time student at Rutgers University, which at that time was about $12,000 per year.

David was rejected at Penn State. He then modified his application at George Washington for early acceptance. When he was accepted, he withdrew his other applications. The annual expense of a student at George Washington at that time was about $31,000 per year.

Plaintiff moved before the Family Part for an order directing defendant to pay fifty percent of college costs for both children, requiring defendant to pay fifty percent of the cost of sending David to George Washington University and limiting any reduction of regular child support payments to twenty-five percent while David was away at college. Defendant filed a cross-motion seeking limitation of his contribution to David's college costs to fifty percent of the cost at Rutgers and for a seventy-five percent child support reduction while David was at college. Judge Zampino reduced child support for David by fifty percent "during the seven months that the ...


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