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Morales v. Morales

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 1, 2008

TIMOTHY F. MORALES, PLAINTIFF-APPELLANT,
v.
LINDA G. MORALES, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, No. FM-07-871-96.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 5, 2008

Before Judges Wefing, Parker and R. B. Coleman.

Plaintiff appeals from post-judgment orders entered by the trial court on May 25, 2007, and June 13, 2007. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The parties were married in 1988, and two children were born of the marriage. The parties were divorced pursuant to a judgment of divorce entered on May 21, 1996. In connection with those divorce proceedings, the parties negotiated an agreement incorporated within their judgment of divorce with respect to property, custody and support questions. Each party waived any claim to alimony, and plaintiff agreed to pay $75 per week as child support for each child until that child attained the age of eighteen or completed a course of higher education. The agreement defined that term as being a full-time student in an accredited college or trade school and attending consecutive years in pursuit of a two- or four-year degree. The agreement also stated that if the children wished to pursue higher education and were capable of doing so, "the husband and wife will at that time decide upon the financial and related arrangement."

In September 2004 the trial court entered an order which modified the parties' agreement in several respects. The order increased plaintiff's child support obligation to $181.32 per week. In addition, the order contained the following provision:

The parties are to divide the costs of college education for the children on a 50-50 basis. The parties must consult with each other prior to choosing a college.

Plaintiff's motion for reconsideration was denied.

Although the children were at that point several years away from college, the trial court entered the order at defendant's request so that the question of the parties' respective financial responsibility would be resolved in advance. Unfortunately, the goal of avoiding disputes was not achieved.

In April 2007 plaintiff filed a motion for relief from the terms of the earlier order directing the parties to share equally the costs of college. His motion was generated by his daughter's decision to attend Quinnipiac University in Connecticut, rather than a college in New Jersey. The tuition at Quinnipiac exceeded forty-thousand dollars per year, and plaintiff contended she could attend a local college at much less expense.

Plaintiff asserted in his motion that his financial position had deteriorated since the divorce. He noted that he was a high school graduate and had worked as a machinist during the marriage. The company for which he had worked had ceased operations, and such jobs were increasingly scarce in New Jersey, and he had been unable to find anything comparable.

Defendant opposed the motion, submitting material to demonstrate that once the financial aid package offered by Quinnipiac was taken into account, the yearly cost would be approximately ten thousand dollars per year for tuition, room and board, substantially less than the total cost at institutions plaintiff had recommended. Defendant also maintained that plaintiff was deliberately under-employed.

After hearing oral argument and reviewing the parties' submissions, the trial court entered the order of May 25, 2007, which capped plaintiff's responsibilities for his daughter's college costs at ten thousand dollars per year. And, because the charge for his daughter's first year at Quinnipiac was only slightly in excess of ten thousand dollars, plaintiff was only required to pay five thousand five hundred dollars for that year. Under the court's order, plaintiff will not be obligated to pay more than ten thousand dollars per year even if the charges at Quinnipiac increase.

Plaintiff's brief on appeal ignores those aspects of the record and speaks as if the trial court had ordered him to pay one-half of forty-thousand dollars per year, or more than twenty thousand dollars per year. In the course of entering this order, the trial court noted that plaintiff had received notice more than three years in advance that he would be responsible for contributing to his daughter's college expenses and that he should have attempted to make some provisions in the interim for this obligation. Although the trial court did not make a specific finding that plaintiff was under-employed, we think such a finding is fairly inferable from the record before us. We are confident that there is no justification to remand this matter to the trial court for that purpose in light of the expense and emotional stress and anxiety such a remand would involve for the parties.

Plaintiff also listed in his notice of appeal the order of June 13, 2007. That order required plaintiff to pay two thousand seven hundred fifty dollars toward his daughter's first year's college expenses no later than June 19, 2007, denied his motion for reconsideration and denied his motion for a stay. The same reasons that lead us to conclude that the order of May 25, 2007, should be affirmed lead us to conclude that the order of June 13, 2007, should be affirmed as well.

The orders under review are affirmed.


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