On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, FM-10-91-95.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Collester and Sabatino.
This appeal presents again the issue of whether a parent is obliged to contribute to the college education of a child who is alienated from the parent. Plaintiff Christopher D. Winans and Kathy Ann Finch-Winans were divorced on February 21, 1995. Two children were born of the marriage: Benjamin, now emancipated, and Spencer, born October 20, 1986, who is the subject of this appeal. By the terms of a property settlement agreement (PSA) incorporated into the judgment of divorce (JOD), plaintiff was awarded custody of the two children because of defendant's mental illness. She was not required to pay child support while unemployed. Because plaintiff assumed custody and was the sole support of the children, he was to retain all the equity in the martial home after defendant conveyed her interest to him. Plaintiff agreed to pay $300 per week as alimony to defendant while granting him discretion to require defendant to enroll in any government program including social security disability that would reduce his obligation to her. The PSA dealt with the children's college expenses in the following manner:
In the event that either of the children does attend and undergraduate college, the parties agree to contribute to such education for a four-year continuous period which can be extended up to one semester solely because of illness or disability to the extent of tuition, books, school fees, on campus room and board, applications for admissions and graduation fees to the extent of their then existing ability, after deduction for any of available scholarships, grants, work study monies, loans or other emoluments to which each child may be entitled.
Neither party shall be obliged to contribute to graduate school education.
Another PSA provision rendered its terms irrevocable:
The within Agreement is IRREVOCABLE and contains the entire understanding of the parties and cannot be changed orally.
About a month after the entry of the divorce judgment, plaintiff remarried. His second wife (Laurie) had two children, a son and a daughter. Sadly, the daughter struggled with cancer and died. Later plaintiff and Laurie adopted a girl. The relationship between plaintiff's two sons and Laurie was rocky from the start. Spencer claims that Laurie was a "control freak," was verbally and physically abusive, and treated him and Ben as "second-class citizens" in their own home. However, plaintiff says the accusations were untrue and that it was Ben and later Spencer who were verbally abusive to both Laurie and himself. Plaintiff said that Ben was a behavioral problem. He was suspended from high school, had various "scrapes with the law," and used both drugs and alcohol. He was belligerent to plaintiff and Laurie, at one point threatening to burn down the house. Plaintiff had Ben evaluated by a psychiatrist and subsequently enrolled him in a residential treatment program in far away Spokane.
After Ben left, the relationship between fourteen-year-old Spencer with his father and stepmother became worse. Plaintiff said that he became hostile to all the members of the household including his stepbrother and stepsister. Spencer claimed that Laurie physically abused him and that his father did nothing about it.
In 2000, Spencer and his father agreed that he would attend the Fishburne Military Academy. While plaintiff asserts Spencer wanted to go away to military school, Spencer says that he agreed only because he was afraid to be at home with his stepmother. He also felt that his father was sending him away just as he had his brother to get him out of the home to satisfy Laurie. Spencer said that Fishburne was a school for troubled children, and he hated it. After he completed the eighth and ninth grades at Fishburne, he did not want to return. Because his problems at the home with his stepmother did not improve, it was agreed that he would go to another private boarding school, the Hill School in Pennsylvania.
Plaintiff has another version of the events leading to Spencer's transfer to the Hill School. He said that he told Spencer that he would not enroll Spencer in the Hill School because it was too expensive at $30,000 per year. He said Spencer was "devastated" and did not want to return to Fishburne. Plaintiff said at this time he had an argument with sixteen-year-old Spencer, who made "an informed choice" that if his father paid for the Hill School, Spencer would pay for his own college education. Spencer denies making any such agreement.
Spencer attended the Hill School, but he did not return to live at home. Rather he stayed with Mr. and Mrs. DiFazio, parents of one of his friends, on school recesses and the summer. It was made clear that he was not welcome in his father's home. After Mr. DiFazio perished in the World Trade Center disaster of September 11, 2001, Mrs. DiFazio expressed reservations about Spencer spending the summer since she had three other adolescents at home. Spencer then spent his time during school recesses with Charles and Linda Bachman and their children, where he remains to this date. Plaintiff agreed to pay the Bachmans $800 a month for Spencer to remain at their home. Spencer stayed with the Bachmans through his high school graduation, to which he did not invite his father.
During Spencer's senior year Charles Bachman agreed to act on Spencer's behalf to discuss the issue of college with plaintiff. In their first phone conversation plaintiff said that he would not pay anything for Spencer's college because he wanted him to experience the "character building value of working one's way through college." In the second conversation plaintiff proposed contributing $10,000 per year as well as continuing to pay the Bachmans $800 a month. Although Spencer's choice was Northeastern, plaintiff refused to give him "a blank check" and restricted the college to Rutgers. Plaintiff explained to Bachman that he borrowed money for each year of Spencer's private high schools, and that $10,000 per year for college was a stretch. When Bachman disagreed, plaintiff threatened to remove Spencer from the Bachman home and the Hill School.
Spencer certified that he was accepted at Northeastern which cost about $40,000 per year. He said he was willing to pay a portion of his college expenses. He took a Stafford loan in the maximum amount of $2,546, worked during the summer to save $2,000 for spending money and another $1,000 toward a required computer. Spencer also said that because of his father's income and the fact that he still reported him as a ...