December 18, 2008
CHRISTOPHER YAX, PLAINTIFF-APPELLANT,
SHAUNA YAX, N/K/A SHAUNA DALY, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1997-98M.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2008
Before Judges Sabatino and Simonelli.
This appeal involves a dispute between divorced parents concerning college expenses for their daughter. Specifically, plaintiff, Christopher J. Yax ("the father"), appeals the Family Part's order of October 19, 2007, which, among other things, required him to pay half of the daughter's college expenses for the fall 2006 semester. The father also appeals the Family Part's ensuing denial of his motion for reconsideration in an order dated December 7, 2007. We vacate those dispositions relating to the college costs, and remand for further proceedings.
The parties were divorced in December 1998. They have two children, a daughter born in January 1987, whose college costs are the subject of this appeal, and a son born in August 1992. The mother, defendant Shuana Daly, now resides in California, where both children are domiciled. The father continues to reside in New Jersey.
The parties have had ongoing disputes over child support and educational expenses. Those disputes persisted when their daughter enrolled in Chapman University, an institution located in California, after she discontinued her studies at a prior college. The parties also contested their responsibilities for payment of their son's tuition at Santa Margarita Catholic High School.*fn1
In an effort to resolve their disagreements, the parties and their respective counsel entered into a Consent Order in the Family Part on November 9, 2006. Among other things, that Consent Order provided that the parties would share the daughter's college expenses equally beginning with the August 2006 payment. The reimbursable expenses were defined to include tuition, living arrangements and food. The father was obligated to apply for financial aid and college loans, with the required cooperation of the mother.
The Consent Order was modified, however, by an ensuing order issued by the Family Part on March 30, 2007. That modification order was the result of a motion by the father and a cross-motion by the mother concerning their lingering issues of support and enforcement.
Significant to the present appeal, paragraph 5 of the March 30, 2007 modification order specified:
[The mother] shall provide [the father] with documentation of all college expenses and proof of attendance, including transcripts, within fourteen (14) days. [The father] shall be responsible for his share of these expenses, pursuant to the November 14, 2006 Order, through the date of [the daughter's] emancipation. [The father] is responsible for his share of tuition for the full semester of Fall 2006. For other expenses, including housing, food, and utilities, [the father] is responsible only up to the date of emancipation. [The father] is not responsible for contribution after the date of [the daughter's] emancipation, however the Court strongly encourages [the father] to continue to assist [the daughter] in her academic endeavors to the best of his ability. [The father] shall submit payment for his share to [the mother] within sixty (60) days of [the father's] receipt of the documentation. If [the mother] fails to provide documentation that [the daughter] completed the Fall 2006 semester, [the father] is not responsible for contribution.
The father questioned whether the daughter had actually "completed" the Fall 2006 semester at Chapman University, noting that she had become pregnant in the fall of 2006. In November 2006, she married the expectant father-to-be, and she gave birth to the child in April 2007.
Chapman University billed the daughter for the fall 2006 semester and, after that term bill remained unpaid, put the matter into collections. Her mother apparently ended up paying the full amount and sought reimbursement from the father of his share. The father declined, because he believed that the daughter had not completed the fall 2006 semester, as required to trigger his obligation under the March 2007 order. The mother subsequently presented a supposed academic transcript, which showed that the daughter had received passing grades in four courses at Chapman for the fall 2006 semester. The father contends that this academic transcript was forged. The father presented a certification from his new son-in-law*fn2 ,
who advised the court that the daughter had gone to a copy center with her mother and "cut and paste[d] a fake transcript to submit it to the [c]court." Responding to this accusation, the mother admitted that the daughter had altered her transcript, but only "to show better grades." The mother insisted that the daughter had, in fact, completed the fall 2006 semester and that the father was therefore required to pay half of the college costs for that period.
Another Family Part judge*fn3 , the third successive judge involved in this matter since November 2006, heard the mother's subsequent motion for enforcement. The judge ruled that the father was obligated to pay half of the daughter's fall 2006 college costs, irrespective of whether she had actually completed that semester. The father moved, unsuccessfully, for reconsideration.
In the judge's letter memorandum explaining her reasons for denying relief to the father, she concluded that both parents should bear equal responsibility for their daughter's academic difficulties coinciding with her pregnancy, and that any fraud that was committed relating to the academic transcript was committed upon both parents and not just upon the father.
The father has appealed, arguing that the March 30, 2007 order was the "law of the case" and thereby he should be relieved of any responsibility for college costs because there has been no demonstration that the daughter completed that academic term. The mother, in her pro se submission, contends that the third judge's ruling was correct, and complains that the father has frequently been delinquent on other various support obligations since the time of their divorce.
Unfortunately, we have not been furnished with a transcript of the Family Part proceeding associated with the issuance of the March 30, 2007 modification order. We therefore cannot tell what exactly prompted the court to specify in paragraph 5 of that order that the father's college payment obligations would be tied to proof that the daughter completed the fall 2006 semester. Presumably, at the time of the proceedings in March 2007, the mother was likely to have been aware of whether or not her daughter had fulfilled her course requirements that preceding semester. Since the daughter's child was not born until April 2007, it is possible that the daughter had in fact completed the classes while she was pregnant. On the other hand, the admission that the academic transcript was altered is troubling and we cannot ascertain from this record whether the grades shown on the exhibit represent actual or fictitious grades received by the daughter.
Although the law-of-the-case doctrine does not specifically apply here because the March 30, 2007 order was, by its nature, interlocutory and was not affirmed on appeal, see In re Estate of Stockdale, 196 N.J. 275, 300 (2008), see also Abbamont v. Piscataway Twp. Bd. of Educ., 163 N.J. 14, 15 (1999), the father had a legitimate expectation that the March 2007 modification order would be complied with and not altered by the court, absent a demonstration by the mother of a material change of the parties' financial circumstances, which has not been established here. See Lepis v. Lepis, 83 N.J. 139 (1980). We respectfully disagree with the third motion judge's determination that it is irrelevant under these unusual circumstances whether or not the daughter actually completed her course of study in the fall 2006 semester. Although we appreciate the third judge's desire to promote the daughter's educational advancement and also to protect the mother from undue financial burden, the clear terms of paragraph 5 of the March 30, 2007 modification warranted a deeper examination of the disputed facts.
Because there remain genuine issues of material fact that require further proofs, we vacate the orders appealed from in part. See Conforti v. Guliadis, 128 N.J. 318, 322 (1992) (requiring plenary hearings to resolve material factual disputes); Barrie v. Barrie, 154 N.J. Super. 301, 303 (App. Div. 1977) (same), certif. denied, 75 N.J. 601 (1978). We remand for a plenary hearing on the discrete question of whether the daughter "completed" the fall 2006 semester in accordance with paragraph 5 of the March 30, 2007 modification order. If this is confirmed on remand, then the father is liable for his agreed-upon share of the college costs. If not, then no reimbursement for that particular semester is warranted.*fn4
The orders of October 19 and December 7, 2007 are vacated in part, consistent with this opinion, and the matter is remanded for a plenary hearing. We do not retain jurisdiction.