On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Gloucester County, Docket No. FM-08-3-99.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 31, 2007
Before Judges Cuff, Lisa and Lihotz.
Plaintiff Adrian DeWindt-King and defendant Stanley O. King divorced in 1990. They have two children, a son born in 1983 and a daughter born in 1985. Their son enrolled in a doctoral program at the University of Virginia following completion of his undergraduate education in May 2005. In December 2006, plaintiff filed a motion to compel defendant to continue to pay child support and educational expenses not covered by their son's generous grant package. Defendant filed a cross-motion to declare his son emancipated. Plaintiff appeals from the order denying her motion to compel defendant to pay child support and educational expenses, declaring their son emancipated as of May 31, 2005, and denying counsel fees. We affirm the order of emancipation but modify the date of emancipation to the date defendant filed his cross-motion. We also affirm the denial of counsel fees.
The parties married in 1981 and divorced in 1990. By order dated July 8, 2004, plaintiff was required to pay 48% of the children's educational expenses, after deduction of loans and scholarships. Defendant was responsible for the balance. If a child chose to reside off-campus, the child was required to pay one-third of off-campus room, board, food and utilities if "the cost exceeds the expense for on-campus room and board." Defendant was also required to pay $205 each week in child support.
In July 2004, the parties' son was about to commence his senior year in college. It is undisputed that he graduated in May 2005 and enrolled in a behavioral neuroscience Ph.D. program at the University of Virginia. The parties' son received an extremely generous fellowship from the institution that provides virtually full financial support.
Following the son's graduation, defendant continued to pay child support. He did not file a motion to emancipate his son until plaintiff filed a motion on December 4, 2006, to enforce the July 2004 order. In her motion, plaintiff sought an order requiring defendant to pay 52% of the post-secondary educational expenses of their son, 55% of the children's uncovered medical expenses, and to reimburse her for past educational and medical expenses.
In an oral opinion, the judge ordered the parties' son emancipated as of May 31, 2005, thereby denying plaintiff's request for child support and contribution to their son's graduate educational expenses. Citing the parents' educational and vocational backgrounds and their son's educational accomplishments, the judge noted that both parents seemed willing to make voluntary contributions to their son as needed. The issue for the judge was whether he should compel such contributions. The judge reviewed the Newburgh*fn1 factors and concluded that in this instance, the son should be considered emancipated. In the course of his opinion, the judge suggested that, when the child is pursuing a graduate or professional degree, the child/student should present evidence that the advanced degree may not allow him to repay student loans. The judge also noted that the age of the parents, their need to plan for retirement, and any new responsibilities assumed by subsequent marriages should be considered.
On appeal, plaintiff urges a de novo review of the ruling because the motion judge misapplied the law to the facts. Plaintiff argues that the weight of authority dictates that the parties' son should not be considered emancipated and that the motion judge impermissibly shifted the focus from the best interests of the child to the best interests of the parent. She also contends that her request for counsel fees should have been granted. Defendant responds that the motion judge properly applied the law to the facts and did not err by denying counsel fees.
In support of her argument that their son should not be considered emancipated and that defendant should be compelled to pay child support to her and a portion of any uncovered personal expenses of their son, plaintiff cites the educational accomplishments of both parents. It is admitted that both parents possess advanced degrees; it is also undisputed that both parents bore the costs of those advanced degrees.
The seminal case on the issue of parental contribution to post-secondary education is Newburgh v. Arrigo, supra. The Court sought to identify factors to guide judicial consideration of an application to contribute to post-secondary education. 88 N.J. at 545. In doing so, the course a family would have taken if the family had not been fractured by divorce is one of several factors to be considered because
[u]nique problems arise when parents divorce. The heightened economic concerns and animosity that may develop as part of the divorce process in all too many cases may influence a parent's viewpoint as to how he or she would have acted if the family had remained together. Consequently, we have no hesitation in concluding that the first Newburgh factor is not a threshold factor, but rather, is one of the numerous factors to be evaluated and weighed in determining whether a non-custodial parent must contribute to higher education expenses. [Gac v. Gac, 186 N.J. 535, 545 (2006).]
By identifying a non-exclusive list of factors, the Court attempted to eliminate any educational disadvantage to the children of divorced parents. Newburgh, supra, 88 N.J. at ...