On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FM-13-1760-95A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker and Koblitz.
In this post-judgment matrimonial matter, defendant, Richard William Schultze, appeals from an order entered September 29, 2006, and a subsequent order denying reconsideration. The September 29 order denied defendant's application to change visitation arrangements to allow the parties' younger son, Spencer, to depart from New York, Philadelphia or Newark when flying to California to see defendant. The order also denied defendant's application to emancipate the older son, Thomas, and reduce child support as a result of the emancipation. In addition, the order required defendant to reimburse plaintiff $26,920.89 in college costs for Thomas and share proportionately in future college expenses. The order adjudged defendant to be in violation of litigant's rights for failure to exchange financial information and allocate college expenses. The trial court denied defendant's application for reconsideration on January 5, 2007, and in a companion order of the same date declared defendant to be in violation of litigant's rights for failure to pay the college costs previously ordered. The trial court ordered defendant to pay $1,242.50 in counsel fees and costs to plaintiff as a result of his failure to pay the court-ordered college costs.
On appeal, defendant argues that the trial court erred (1) in not emancipating Thomas; (2) in compelling defendant to pay a portion of the past college expenses without documentation of those expenses, without documentation of plaintiff's income, and without regard to the parties' agreement which held that income would be adjusted by child support; and (3) in not amending a December 2005 order to include the provision that Spencer could fly from New York City as well as Newark to visit his father in California. We affirm the trial court's decision not to emancipate Thomas. We reverse and remand to the trial court for an order permitting Spencer to fly from New York City or Newark to visit with his father, as clearly stated by the judge at the motion hearing in December 2005. We also remand for a plenary hearing to determine the quantity of past college expenses appropriately allocated to defendant.
The parties, who were divorced in 1995, had two sons; Thomas, twenty-three at the time of the September 2006 order, and Spencer, who was thirteen at that time. The judgment of divorce incorporated the terms of the parties' property settlement agreement (PSA), which provided, among other things, that emancipation would occur at the later event: the child reaching the age of eighteen or completion of four academic years of college education so long as the child pursued college education with reasonable diligence. In no event would the child remain unemancipated past his twenty-fifth birthday. The PSA also called for a reduction of 50% of child support for a child who lived away from home while attending college. The parties agreed to exchange tax returns every year and evaluate child support every three years. They also agreed to share in the cost of college proportionately to their earned and unearned income and adjust their income by the level of child support and alimony (if applicable) for the year in which tuition was due and owing.
In the fall of 2005, Thomas was in his fifth year of college at the University of Arizona, anticipating graduation in May 2006. Defendant's motion at that time to emancipate Thomas and reduce child support was denied. The judge ordered the parties to exchange only W-2 income information, not tax returns, for the years 2001 to 2005 and plaintiff was required to provide proof of college expenses after the deduction of any grants, loans, or scholarships. The allocation of college expenses was to be in proportion to the parties' W-2 earned income. Unearned income was not to be used in the calculation, nor was child support to be deducted from income for the purposes of calculating responsibility for payment for college. The judge anticipated that the parties would not be able to agree on included expenses, stating that this was a "starting point" and predicting another application on this issue.
The judge indicated at oral argument that Spencer could fly non-stop from either Newark or New York City to visit his father in California. The order, however, reflected that the flight should depart only from Newark. Defendant did not appeal or file a motion for reconsideration of this order.
In September 2006 defendant filed a motion to change Spencer's visitation arrangement to allow for flights to California from New York City, Philadelphia or Newark. The motion also sought the emancipation of Thomas, who was then twenty-three and in his sixth year of college, anticipating graduation in May 2007.*fn1 He also sought a reduction in child support. Plaintiff cross-moved for an award of $26,920.89, which represented her calculation of defendant's share of college expenses not covered by child support.
The trial court found that the issue of Thomas' emancipation had already been decided a year earlier at the time of the previous motion, since Thomas was still diligently pursuing his college education and had not yet reached the age of twenty-five. We agree that Thomas remained unemancipated in 2006 since he was diligently pursuing his education as he had been doing in 2005 when the earlier decision was rendered. Thomas did not graduate after his fifth year as had been expected, but otherwise he was similarly enrolled full-time in college and had not yet turned twenty-five.
The trial court accepted plaintiff's summary and allocation of college expenses. On reconsideration, the trial court indicated it did not wish to micro-manage the mother's college budget and ordered reimbursement of the entire amount that she sought. He accepted the calculations of plaintiff's counsel with regard to the parties' proportionate share of those expenses based on the W-2 income disclosed by both parties.
The trial court correctly enforced the prior judge's method of determining income for purposes of calculating the parties' proportionate obligation to pay college expenses. Only W-2 income was used and child support was not deducted. Plaintiff provided defendant's prior counsel with her W-2 information. That attorney may not have passed the information along to defendant.
As anticipated by the prior motion judge, the parties could not agree on how to divide the college obligation. Defendant disputed the reasonableness of some of the college expenses, as well as the extent to which the weekly child support payments, rather than supplemental educational payments, should be used to cover housing supplies and other expenses. Plaintiff presented the court with a spread-sheet description of the college costs ...