On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FM-13-957-99A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Winkelstein.
Defendant, Louise Leotsakos, seeks relief from the Family Part's October 27, 2006 order that denied her motion to enforce the parties' Inter-spousal Agreement (Agreement) as it pertains to plaintiff's obligation to have his pension evaluated and to contribute to the college education costs of the parties' son, Kyle. In his responsive brief, plaintiff has agreed to have the pension evaluated and the appropriate Qualified Domestic Relations Order prepared in accordance with the terms of the Agreement. That issue is therefore moot.
The primary issue remaining is whether the trial court erred by excusing plaintiff from complying with the terms of the Agreement that obligated him to contribute to Kyle's college expenses. A secondary issue is whether plaintiff should be required to reimburse Kyle for a $10,000 student loan that Kyle incurred to attend Rider University in Lawrenceville. We affirm that portion of the Family Part's order that denied defendant's motion to require plaintiff to reimburse Kyle for the $10,000 loan, but reverse that portion of the order that relieved plaintiff of his obligation to pay for Kyle's college expenses.
The parties were married on February 4, 1982, and had two children: Michael, born on September 9, 1982; and Kyle, born on August 13, 1984. The court entered a dual judgment of divorce on June 22, 1999, which incorporated the Agreement by reference. Defendant was awarded custody of the children. The Agreement's provision regarding child support addresses plaintiff's obligation to contribute to college costs for the children. Specifically, it provides:
It is recognized and acknowledged by and between the parties that the children are presently attending expensive private schools. Kyle attends Peddie and [Michael attends] Lakewood Prep. The parties agree that the husband shall pay the tuition for said private schools and colleges of their choice. It is acknowledged, agreed and understood that so long as the children are attending said private schools and colleges, and husband pays his liability for said schooling, wife shall not seek any child support or alimony contributions from husband, but she specifically agrees to suspend her rights and claims during said time of school attendance. It is further agreed and understood that, so long as husband continues to work full time for the Star Ledger, and if wife makes a claim and application for child support and/or alimony in the future, that any application will be limited to husband's income from his job at the Star Ledger and no other income will be utilized in calculating any child support and/or alimony obligation husband may have to the wife. In the event husband ceases employment with Star Ledger, other sources of income may be utilized for payment of alimony, as per attached schedule. Husband shall contribute for college tuition, room and board, and other college expenses, after giving credit for all grants, aid, loans, scholarships, and earnings of the child.
The Agreement also calls for plaintiff to pay alimony to defendant, for four years, in the amount of $1000 per month; the obligation was deferred until June 2006. At the time of the divorce, defendant earned between $40,000 and $50,000 per year; plaintiff earned in excess of $100,000 per year.
Post-judgment, plaintiff appears to have admitted to manipulating defendant into agreeing to the terms of the Agreement. In a letter signed by both parties and notarized on July 30, 2002, plaintiff stated: "I also admit that I manipulated [defendant] into agreeing to terms of the inter-spousal agreement that she would not have agreed to if not under such emotional/financial stress."
Kyle attended Rider for approximately a year and a half, from 2002 through 2004. While there, he maintained a 2.9 grade point average, but apparently stopped attending in 2004 after getting a job and regularly working thirty hours a week. He asserts that his father urged him to work while in college, which caused his school work to suffer and eventually led him to drop out of school. Since leaving Rider, he has held a full-time job. He has been accepted at the Methodist College in Fayetteville, North Carolina, where college costs are approximately $23,000 per year.
In denying defendant's motion to enforce the Agreement to require plaintiff to pay for Kyle's tuition at Methodist College, the trial court made the following findings:
There is really no formula that a court can apply on the issue of the enforcement or non enforcement of a provision in an inter-spousal or in a property settlement agreement . . . as it relates to the college obligation.
It involves a variety of factors. You have to take a look at the history of, in this case, the son Kyle from the time that he graduated from high school. Did he proceed to a stance leading ...