March 12, 2008
EDITH L. CRUZ-CHASE, PLAINTIFF-RESPONDENT,
FELIX A. DEJESUS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FD-04-4028-97.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 8, 2008
Before Judges Winkelstein and LeWinn.
The parties were married on August 2, 1982, and divorced by judgment entered on November 9, 1990. They have one son, Brandon DeJesus, born January 27, 1987. According to the property settlement agreement (PSA) incorporated into the divorce judgment, defendant's child support obligation was set at $75 per week "until the child reaches the age of 18 years... or graduates from high school, whichever is later." The PSA also provided that the parties would equally share Brandon's college expenses, subject to either party's right to petition the court "to modify this provision in the event that they are financially unable to meet their obligation to pay for the child's college tuition and related costs."
In August 2005, plaintiff filed a pro se motion resulting in an order compelling defendant to pay $7,325.50 to Kings College as his one-half share of Brandon's college expenses, pursuant to the PSA. This order also increased defendant's child support obligation to $133 per week, pursuant to the Child Support Guidelines, plus an additional $50 per week towards accrued arrears. Defendant did not respond to the motion.
In October 2005, plaintiff filed another pro se motion resulting in an order enforcing the August order for payment of college expenses and increasing the weekly child support arrears assessment to $80. Again, defendant failed to respond to this motion.
In August 2006, plaintiff filed another enforcement motion for college expenses and payment of child support. In October 2006, defendant filed a cross-motion seeking numerous forms of relief, including: (1) to be relieved of any obligation to contribute to Brandon's college expenses, or, alternatively, to require Brandon to pursue all available forms of financial aid, and compelling plaintiff to provide copies of all college-related financial documents and reports, and other information; and (2) to reduce his child support obligation. At this point, both parties were represented by counsel.
On February 5, 2007, the trial judge entered an order requiring defendant to pay $15,690 as his one-half share of Brandon's college expenses for his freshman and sophomore years, and to continue to be responsible for one-half of Brandon's expenses in his remaining college years; defendant was further required to submit, by February 9, a proposed timetable for making his overdue college payments. Plaintiff was ordered to give defendant copies of all tuition bills with statements as to any financial aid Brandon received.
On February 22, 2007, in response to correspondence from counsel for both parties, the judge entered an order modifying defendant's child support obligation to $110 per week plus $80 per week towards arrears. This order further set forth a timetable for defendant's payments on his outstanding obligation for college expenses.
Defendant now appeals from the trial court's orders of February 5 and 22, 2007, raising the following issues:
POINT I: THE LOWER COURT ERRED BY MODIFYING CHILD SUPPORT TO A NON-GUIDELINES AMOUNT WITHOUT CONSIDERING THE REQUIRED STATUTORY FACTORS AS SET FORTH IN N.J.S.A. 2A:34-23(a)
POINT II: THE LOWER COURT ERRED BY DENYING APPELLANT'S REQUEST FOR A CREDIT IN OVER-PAID CHILD SUPPORT AND TO RE-ALLOCATE THE CONTRIBUTIONS TOWARD THE MINOR CHILD'S COLLEGE TUITITON AND RELATED EXPENSES
For the reasons set forth, we conclude that the trial judge's decisions in support of her orders of February 5 and 22, 2007, failed to comply with the requirements of Rule 1:7-4. Therefore, we remand this matter for further proceedings.
Rule 1:7-4(a) provides:
The trial court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right[.]
The trial judge held two proceedings in this matter. On December 1, 2006, counsel for both parties presented oral argument on the then-pending motions. On that date the judge denied plaintiff's request for sanctions against defendant for non-payment of support and college expenses; she further ordered plaintiff to submit a case information statement in order to review child support and apportionment of college expenses. The judge also denied defendant's request for retroactive modification of child support and allocation of college expenses. Neither party moved for reconsideration of, or filed an appeal from, the court's order.
The court held a second proceeding on February 5, 2007. Counsel presented arguments based on the parties' then-current case information statements. Regarding the college expenses issue, defendant asked the court to consider the factors under Newburgh v. Arrigo, 88 N.J. 529 (1982), contending that he has been estranged from his son and had no involvement in the college selection process. The court responded to this request by noting the extensive financial aid Brandon had obtained to defray his college costs.
The judge stated she would not "undo" prior court orders, but would consider defendant's motion as one for modification going forward. At a later point in the colloquy with counsel about college expenses, the judge stated that she would not "modify what [the parties] agreed to way back when in 1999, so . . . [w]e'll leave it at 50/50." The judge gave defendant until Friday of that week to submit his proposed payment plan.
After both counsel received the judge's order of February 5, 2007, each wrote to the court on the issue of defendant's request to modify child support based on Brandon's attendance at college. On February 22, 2007, the judge entered her second order under appeal, accompanied by a letter that stated:
It appears that if the child support guidelines were used with current income, the amount that would be owed by the Defendant would be $185 per week. However, the Court recognizes that this is not a child support guidelines case and that the New Jersey Child Support Guidelines do not apply to full time college students who reside on campus.
In reviewing the respective incomes and budgetary concerns of the parties, together with the expenses for the college student, the Court orders that the child support shall be modified to $110 per week. Additionally, the Defendant will continue to pay $80 per week toward the arrears and shall pay the sum of $400 per month toward the college tuition and related expenses of the child which total approximately $15,690 to date (his share).
We turn now to the adequacy of the judge's findings of fact and conclusions of law in support of the two orders on appeal.
We first address the order modifying defendant's child support obligation. Rule 5:6A mandates application of the New Jersey Child Support Guidelines to determine child support. However, the Guidelines do not apply to children over the age of 18 who attend college away from home. Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2301 (2008). "When determining whether continued financial support for children attending college . . . [is] appropriate, the court shall consider relevant case law and statutes." Ibid. N.J.S.A. 2A:34-23(a) sets forth the factors a court must consider when determining child support in a case "not governed by court rule[:]"
(1) Needs of the child;
(2) Standard of living and economic circumstances of each parent;
(3) All sources of income and assets of each parent;
(4) Earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children including the cost of providing child care and the length of time and cost of each parent to obtain training or experience for appropriate employment;
(5) Need and capacity of the child for education, including higher education;
(6) Age and health of the child and each parent;
(7) Income, assets and earning ability of the child;
(8) Responsibility of the parents for the court-ordered support of others;
(9) Reasonable debts and liabilities of each child and parent; and
(10) Any other factors the court may deem relevant.
As the parties' son is over the age of 18 and attends Kings College in Wilkes-Barre, Pennsylvania, defendant's child support obligation must be determined by application of these statutory factors. At the February 5, 2007, proceeding, the trial judge reviewed the parties' case information statements. However, that review was conducted in the context of defendant's request to reduce his percentage share of responsibility for the child's college expenses. In fact, the court's order of February 5, 2007, did not address child support. It was not until counsel wrote to the court to request resolution of child support that the judge issued her letter and order of February 22, 2007.
In that letter, the only explanation for the non-Guidelines child support amount of $110 per week in the accompanying order was the court's review of "the respective incomes and budgetary concerns of the parties, together with the expenses for the college student[.]" Unfortunately, this summary explanation fails to shed any light on how the trial court arrived at the particular amount of $110. The letter is completely devoid of analysis vis-à-vis the mandatory statutory factors.
Therefore, on remand, the trial court shall address and apply the factors set forth in N.J.S.A. 2A:34-23(a)(1) to (10) in calculating defendant's support obligation for the child while he attends college. In light of the passage of time, the trial court may consider requiring updated case information statements from the parties and allowing them to file and serve supplemental certifications.
The second issue raised by defendant - - his obligation to contribute to the child's college expenses - - also requires a remand due to the lack of any findings of fact or conclusions of law as required by Rule 1:7-4. In his motion papers and at oral argument on February 5, defendant specifically raised issues relating to the nature of his relationship with his son, his non-participation in decisions affecting the child's life including his choice of college, and his inability to afford the college chosen by plaintiff and his son. In his certification supporting his cross-motion, defendant stated:
I have not seen my son since he was approximately six years of age. I have had no discussion with Plaintiff relative to our son's college education. Specifically, I was not advised of the schools to which he applied, the costs, the availability of financial aid and loans, etc. Essentially, I had no involvement in the decision for our child to attend college. . . . .
I simply do not have the financial means to pay full guideline [sic] child support . . . and contribute toward our son's college expenses as directed in this Court's prior Orders. . . . .
The college tuition alone is beyond my financial means. I simply do not have the income to pay one-half of our son's college tuition. Since I was not a part of the initial decision making process concerning where our child would attend college, my position was not taken into account.
Rather, Plaintiff and our son chose a school without any consideration of my ability to pay.
For these reasons, defendant asked the court, at the February 5 hearing, to consider the so-called "Newburgh factors" in deciding what, if any, obligation he should have to contribute to the child's college costs. As noted, the judge denied that request without any discussion, concluding only that, "[w]e'll leave it at 50/50."
In Newburgh, supra, 88 N.J. at 545, the Supreme Court held:
In evaluating the claim for contribution toward the cost of higher education, courts should consider all relevant factors, including (1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; (2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education; (3) the amount of the contribution sought by the child for the cost of higher education; (4) the ability of the parent to pay that cost; (5) the relationship of the requested contribution to the kind of school or course of study sought by the child; (6) the financial resources of both parents; (7) the commitment to and aptitude of the child for the requested education; (8) the financial resources of the child, including assets owned individually or held in custodianship or trust; (9) the ability of the child to earn income during the school year or on vacation; (10) the availability of financial aid in the form of college grants and loans;
(11) the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and (12) the relationship of the education requested to any prior training and to the overall long-range goals of the child.
The trial judge did engage in an analysis of the parties' respective financial situations through review of their case information statements. There was also evidence before the court of the financial aid made available to the child to offset expenses.
However, the trial judge failed to address factors (1), (2), (5), (7), (11) or (12), all of which relate to non-financial factors such as the nature of the relationship between father and son, the appropriateness of the college chosen in light of the child's interests and aptitudes, and the relationship of the requested contribution to the type of school chosen. Defendant is entitled to have the court's assessment of these issues as they bear upon the college contribution issue.
Because the record provides no insight into the trial judge's reasons for her college contribution decision, other than her view of the parties' respective financial situations and the financial aid obtained by the child, a remand is necessary. If plaintiff contests defendant's "Newburgh" claims, the judge may find the need for a plenary hearing. Gac v. Gac, 186 N.J. 535, 543 (2006).
Finally, defendant seeks a "credit" for the period of time he paid a full Guidelines child support amount while the parties' son lived away at college. In his cross-motion filed on October 10, 2006, defendant requested a reduction of child support "based upon a substantial change of circumstance, specifically, the minor child's attendance at college as a full-time student residing on campus."
On December 1, 2006, the trial court agreed that "after a child goes to college, we don't use the straight child support guidelines calculation, so if dad in fact, has been overpaying by some amount, then I can certainly take that into consideration, but part of that consideration has to be the fact that this gentleman is in excess of $10,000 in arrears." The judge then noted that, if defendant did not previously ask for a reduction in child support because the child is in college, she could not "go back and undo it, [she] can only do it going forward."
The judge's December 1, 2006, order states: "Defendant's requests for retroactive modification of child support and retroactive reallocation of tuition responsibility are denied." Thereafter, in her order of February 22, 2007, the trial judge modified defendant's child support obligation to $110 per week (plus $80 per week towards arrears). However, the order does not specify the effective date of that modification.
N.J.S.A. 2A:17-56.23(a) provides that no child support order "shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification, but only from the date the notice of motion was mailed either directly or through the appropriate agent." Therefore, defendant may be entitled to retroactive modification of his child support obligation back to October 10, 2006, the date on which he filed his motion seeking that relief. Whatever figure results from that retroactive application will be a credit against his support arrears.
Reversed and remanded for further proceedings consistent with this opinion. Compliance with this remand shall be completed within forty-five days, and this court shall be notified of the result. We retain jurisdiction.
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