October 30, 2006
MARIA THOMAS, PLAINTIFF-RESPONDENT,
EDWARD THOMAS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-767-97.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 27, 2006
Before Judges Parker and C.S. Fisher.
In this post-judgment matrimonial matter, defendant Edward Thomas appeals from an order entered on November 9, 2005 directing him to pay a total of $40,420 in college tuition for his daughter, Adriana. We affirm.
The parties were married on December 15, 1984 and a judgment of divorce was entered on October 6, 1997. Two daughters were born of the marriage, Adriana and Simone. The parties entered into a Property Settlement Agreement that was incorporated into the judgment of divorce. The agreement provides that the parties would have joint legal custody of the children and that each party would be responsible for their proportionate share of the children's college expenses:
College Expenses: The Husband and Wife agree that if the children shall attend college, after any loans, financial aid, etc. which may [be] available, each party shall be responsible to pay their share based upon their proportion of income for the college expenses of the minor children of the marriage.
Adriana graduated from high school in June 2004 and was accepted at Fairleigh Dickinson University. Defendant, who lives in Florida, objected to her attending college and indicated that if she wished to do so, she should move to Florida to live with him and attend college there because it is cheaper than in New Jersey. He certified that he did not attend college and was a self-made success and stated: "I believe that a proper work ethic is necessary for achievement in life. I do not believe that a college education is necessary for everyone." Moreover, defendant claimed that Adriana was not academically suited for college, despite the fact that she was inducted into the Honor Society at Fairleigh Dickinson.
Defendant's tax return for 2003 indicates that his adjusted gross income for that year was $396,615. Plaintiff, on the other hand, had $37,298 in adjusted gross income for the 2003 tax year. After evaluating the parties' respective incomes and the various other factors, the trial judge ordered defendant to pay 91% of Adrianna's tuition and costs at Fairleigh Dickinson.
In this appeal, defendant argues that the trial court (1) failed to consider his right as a parent with joint legal custody to participate in the decision as to where his daughter would attend college; (2) failed to consider what he believed was a necessary education for his daughter under Newburgh v. Arrigo, 88 N.J. 529 (1982); and (3) erred in ordering him to pay plaintiff's counsel fees.
The trial judge rendered a letter opinion on November 9, 2005, in which he considered defendant's position on Adriana's education but essentially discounted it because it was unreasonable, given defendant's financial capability and Adriana's interests and talents. Although the judge did not specifically cite Newburgh v. Arrigo, he did, in fact, consider the Newburgh factors, emphasizing the disparity in the parties' income and their respective abilities to pay the tuition.
Moreover, award of counsel fees is within the discretion of the trial court. Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004). We find no abuse of discretion here. The award of counsel fees was appropriate under R. 5:3-5(c).
We have carefully considered the record in light of defendant's arguments and the applicable law. We are satisfied that the trial court's decision is more than adequately supported by the evidence. R. 2:11-3(e)(1)(A). We affirm substantially for the reasons set forth in Judge John E. Selser's letter opinion dated November 9, 2005.
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