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Anderson v. Anderson

October 28, 2008

JAMES H. ANDERSON, PLAINTIFF-APPELLANT,
v.
GAIL ANN ANDERSON, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-18085-88J.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: August 20, 2008

Before Judges C.L. Miniman and Lihotz.

This is the third occasion on which we have reviewed decisions of the Family Part judge assigned responsibility for determining applications of defendant Gail Ann Anderson (mother) seeking to compel plaintiff James H. Anderson (father) to contribute to the expense of educating their two children, James, born August 10, 1980, and Michelle, born August 10, 1985.

On September 1, 2005, we reversed an order compelling the father to pay two-thirds of the student loans secured to pay for his childrens' college education. Anderson v. Anderson, No. A-1172-04T5 (App. Div. Sep. 1, 2005) (slip op. at 1) (Anderson I). The judge granted that relief without oral argument or a plenary hearing and without reason or explanation until pressed for fact findings and legal conclusions. Id. at 4. After the notice of appeal was filed, "the judge filed a statement, pursuant to Rule 2:5-1(b), explaining his decision." Id. at 5. However, "his belated findings of fact and conclusions of law were based on a less[-]than[-]complete record." Id. at 6. We found that the judge erred in failing to explain his reasons for denying the father's request for oral argument. Id. at 7-8. And we also found that the judge's Rule 2:5-1(b) statement was not supported by the record and failed to consider all of the factors established by Newburgh v. Arrigo, 88 N.J. 529, 545 (1982). Anderson I at 8-9. As a result, we reversed and remanded the matter for proceedings consistent with our opinion. Id. at 9.

Those subsequent proceedings generated the next appeal. Anderson v. Anderson, Docket No. A-4859-05T5 (App. Div. May 17, 2007) (slip op. at 1) (Anderson II). The same Family Part judge required the father to pay one-half of the student loans after concluding that the doctrine of contra proferentum required the judge to construe the property settlement agreement (PSA) against him on the ground that his attorney drafted the PSA. Id. at 4-5. We reversed reliance on that doctrine in light of Pacifico v. Pacifico, 190 N.J. 258 (2007). Anderson II at 5. We exercised our original jurisdiction to construe the PSA because our interpretation would "eliminate the need for any further litigation." Ibid. We also reversed the award of counsel fees to the mother, again because the "judge failed to make findings of fact and state his conclusions of law with respect to the award of $16,257.55 to the mother." Id. at 8-9. We remanded the matter for reassignment to a different Family Part judge for a hearing on the allowance of fees. Id. at 10. At the time of oral argument in this matter on August 20, 2008, more than fifteen months after our decision, we were advised that there had been no compliance with our mandate.

Shortly before we decided the second appeal, the mother filed a motion returnable on May 11, 2007, seeking an order compelling the father to pay for two-thirds of Michelle's college costs for a fifth year at Rutgers College for which she would receive a master's degree in science education. In support of her application, the mother certified that Michelle had been admitted into the Rutgers five-year joint bachelor's and master's degree program during the spring semester of her junior year. She averred that in or about April 2006 the father was informed of this program and Michelle's intention to complete it and he did not protest Michelle's plan. The mother pointed out that their son James had completed a five-and-one-half-year course of study for which the father was ordered to pay and she estimated that Michelle's tuition for her fifth year at Rutgers would cost $12,000. Because Michelle lived with the mother, there would be no charges for room and board. The mother certified that the father had the ability to pay because in 2004 he had a net income of $272,887 and assets of $2,392,441. She also sought an award of legal fees in the amount of $1885 incurred in connection with her motion.

The father cross-moved for counsel fees and costs. He certified that Michelle made the decision to attend Rutgers without consulting with him and that he refused to pay for the fifth year on December 28, 2006. He pointed out that Michelle gave up a fifty-percent scholarship when she transferred from Stockton College to Rutgers. He asserted that the mother did not have Michelle take out student loans for courses taken during the summer of 2006, contrary to the requirements of the PSA, and urged that the PSA provided that Michelle would be deemed emancipated upon completion of a four-year undergraduate college education. He also asserted that Michelle was living with her grandparents, not her mother, who was still receiving child support on Michelle's behalf. He certified that he and Michelle "have been estranged due to the Court's rulings" and that the mother should not be awarded counsel fees because she has not acted in good faith.

In her reply certification, the mother reiterated some of the averments in her supporting certification and, while acknowledging the loss of the Stockton scholarship, pointed out that the expenses were reduced by having Michelle live at home. She denied that loans were available for summer courses and certified that "Michelle has applied for student loans every year."

Although oral argument was initially denied, it was thereafter permitted on May 11, 2007, but no plenary hearing was ever held. The Family Part judge whose two prior decisions had been reversed by us on appeal granted the relief sought by the mother and denied the cross-motion. This time the judge made findings of fact and discussed the Newburgh factors. He also awarded counsel fees to the mother in the amount of $1,995.50. Specifically, the judge found that the father would have contributed to the cost of Michelle's higher education had the parties not been divorced and that the cost of her education was "minimal when contrasted with the [father's] extraordinarily high income." He also found that the father, a dentist, values higher education and academic success and that Michelle's expectation that he would contribute to her education was "entirely reasonable." The mother sought a two-thirds contribution of $8,000 toward this fifth year of education in the Rutgers joint-degree program, which the judge found was relatively low, reflecting an in-state resident at a public university. He concluded that the father had the ability to pay because he earned a net income of $272,887 and owned assets worth $2,392,441 and was thus "more than financially capable of contributing $8,000.00 towards Michelle's fifth (5th) year at Rutgers University."

The judge found that the joint-degree program was consistent with Michelle's ambitions to become a science teacher and that the father's "income and assets far exceed those of the [mother]." He found that Michelle was highly committed to her goal of becoming a science teacher, admission to Rutgers' Graduate School of Education was highly competitive, and Michelle has continuously succeeded academically. With respect to the financial resources of Michelle, the judge found that "there is no indication that she individually owns assets or holds assets in custodianship or trust." He also found that "[t]here is no indication that Michelle is able to earn substantial income during her full-time enrollment at Rutgers University." He concluded that the father's high income "would render Michelle ineligible" for university grants and that she has been applying for student loans every year.

As to the relationship of the father with Michelle, the judge found that:

[A]ny existing strain on the current relationship between the [father] and Michelle resulted from the [father's] engagement in aggressive litigation and resistance in supporting Michelle's education. Given that the [father] has been responsible for creating a deteriorating relationship with Michelle, the [father's] argument that a strained ...


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