On Appeal from Superior Court of New Jersey, Chancery Division, Ocean County, FM-1521021-85S.
Before Judges Baime, Axelrad and Bilder.
The opinion of the court was delivered by: Baime, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant appeals from a post-divorce judgment order requiring him retroactively to pay fifty percent of his daughter's tuition loans which she incurred while obtaining an undergraduate degree at Quinnipiac College. He argues that the Family Part judge failed to consider and weigh the factors described in Newburgh v. Arrigo, 88 N.J. 529 (1982). We reverse the order entered and remand for further proceedings.
The parties were married in 1971. Two children were born of the marriage, Justin and Alyssa. Justin was eight and Alyssa was five when the parties separated in 1983. The parties were divorced in 1987. While the judgment required defendant to pay $225 per month in child support, it was silent concerning the obligations of the parties toward the college expenses of the children.
It is undisputed that the marriage was a stormy one. During the divorce proceedings, the Family Part ordered Dr. Mathias Hagovsky to perform a psychological evaluation of the family. Plaintiff recounted in her interview with Hagovsky that the marriage was punctuated by defendant's abusive and threatening acts. She asserted that defendant "physically abused her in [the presence] of the children." This allegation was corroborated by Justin who told Hagovsky that he "had seen violence and bitter exchanges between his parents." Hagovsky found that Justin was "traumatized" by these experiences, "convinced that his father would not change," and felt "no safety in contact with [defendant]," fearing that defendant "could hurt someone." Alyssa harbored similar feelings toward defendant. While convinced that her mother "want[ed] her to [visit] with [defendant]," she felt "nervous" about that prospect and "despite her best intentions," was unable "to tell her father how she really felt." Defendant admitted to Hagovsky that he "ha[d] a terrible temper in the past which affect[ed] his wife and children." While "frustrated" by his children's negative feelings toward him, defendant conceded that "there was a good deal of rage and face-to-face screaming to which the children were often exposed."
These experiences had a profound effect on the parties and both children. Dr. Hagovsky observed:
Essentially, both children and their mother have allied themselves in a very effective manner against the father to the point where considerable fear and trauma exists even at the possibility of contact between them. At the moment, this fear is real to the children and to Mrs. Gac as well, and is unlikely to be effectively assuaged even with direct, psychotherapeutic intervention.
In effect, these three have divested themselves emotionally from their husband and father to the point where productive contact is literally impossible. As a result, it is the examiner's impression that to force the issue of contact would be counter-productive and perhaps even destructive to the well being of these children. In their view, seeing their father is an unpleasant, even traumatic resurrection of bad experiences and is to be avoided at all costs. Therefore, the examiner recommends to the court and to Mr. Gac that he refrain from demanding visitation time with the children. It would be in their best interests to publicly make such a statement on the record emphasizing that to do so would be accomplished only by virtue of what is in their best interests and not by dint of his own lack of interest in seeing them.
Formal statements of availability at any time should they wish access should be made including an opportunity for him to write or perhaps even call on special occasions; a chance to send occasional gifts to the children should also be made available. Emphasis should be placed on Mr. Gac's development of this "one way" relationship until such times as the children develop their own need to respond to him.
The Family Part followed Hagovsky's recommendation and did not order visitation between defendant and the children. Although defendant sought to develop a relationship with the children, these efforts proved wholly unavailing. Defendant followed the advice of Dr. Hagovsky and pursued the "one way" relationship recommended, but neither Justin nor Alyssa ever responded. To the contrary, at age sixteen Alyssa made it clear that she did not consider defendant to be her father and she did not want to see him. She reiterated that sentiment at age twenty-two. Even when she attended the funeral of defendant's mother, Alyssa did not utter a word to him. She also stated that she did not "feel comfortable" receiving letters from defendant.
During the period between 1987 and 1994 defendant sent postcards, packages, holiday cards, and monthly or bi-weekly letters to the children. He did not telephone the children, because he was told that they did not want to speak with him. With the exception of returning the written cards and letters to defendant with a note, which read: "we don't want to hear from you. We don't want anything to do with you," Alyssa did not respond to her father's communications. These communications stopped in 1994 when Alyssa moved with her maternal ...