March 19, 2009
PAMELA FALZON, PLAINTIFF-RESPONDENT,
PASCAL FALZON, DEFENDANT-RESPONDENT,
MARC A. FALZON, APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-7079-92.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 13, 2009
Before Judges Graves and Grall.
The parties' son, Marc A. Falzon (Marc), appeals from an order entered on February 14, 2008, denying his motion to intervene. After reviewing the record and applicable law in light of the contentions advanced on appeal, we affirm.
When the parties were divorced on March 18, 1992, Marc was four years old. Following the divorce, defendant did not maintain a relationship with his son. However, defendant continued to pay his court-ordered child support obligation on a regular basis. On June 19, 2006, Marc sent his father an e-mail requesting financial assistance with his college expenses. In his e-mail, Marc stated he would be attending the School of the Art Institute at Chicago (SAIC), and he provided his father with the following information:
Let me tell you about the school and the financial help it is offering. SAIC has a very strong program in textile, fabric, and fashion design, which is the area of art that attracts me most right now. SAIC seems to like my work. After a competitive review of my portfolio, it has offered me a four-year financial aid package worth $27,645 each year for a total of $110,580[.] The package consists of grants, scholarship, loans, and work-study. All but the work-study is applied to tuition. The work-study will go toward living expenses.
Ordinarily SAIC charges $29,400 per year for tuition and fees, but because of the financial aid package my tuition and fee bill for each year will be only $5,255. I am aware that when my mother first told you about SAIC you said that you would contribute toward the cost of my education.
If I go to SAIC, I will take out loans in the amount of $4,625 each year. This is part of the package that brings my tuition down to the $5,000 level.
As to living expenses, I estimate that for a full calendar year, (the academic year plus the summer vacation). I will need $13,900.
This is after I apply the amounts I earn from summer work and the work-study program.
In September 2006 plaintiff filed a motion seeking, among other things, to compel defendant to contribute to Marc's college costs. The motion was denied without prejudice on November 20, 2006, pending discovery and a plenary hearing. During the discovery period, Marc was deposed and he itemized his college costs and his unreimbursed living expenses for his freshman year.
The parties were both represented by counsel when they appeared in court for the plenary hearing on August 29, 2007. Marc was also present. The parties were successful, however, in resolving their differences and the agreement was placed on the record by the attorneys. Prior to hearing from the attorneys, the court advised the parties "to please pay attention as the settlement terms are being read on the record" because they were to be questioned regarding the agreement. After the attorneys set forth the terms of the agreement, the parties were sworn and they both testified: they fully understood the terms of the agreement; they entered into the agreement freely and voluntarily; they considered the agreement to be fair and equitable; and they were satisfied with the legal services rendered on their behalf. Accordingly, the court approved the agreement.
The agreement specified that Marc's unreimbursed expenses for his freshman year totaled $20,363, but his net unreimbursed expenses were $17,863 based on Marc's ability to earn at least $2,500 per year. The parties also agreed that defendant would pay fifty-two percent of the net unreimbursed expenses in the amount of $9,288.76 by increasing his child support payments from $105 to $178.63 per week.
On December 20, 2007, after plaintiff discharged her attorney, defendant's attorney submitted a proposed order to the court. In a letter dated January 7, 2008, plaintiff informed the court that she objected to the proposed order, and she listed her objections. Plaintiff also advised the court as follows: "Although I did the best I could to protect Marc's interest in this matter, I believe I have fallen short. Marc intends to apply to intervene. I endorse his application."
Shortly thereafter, Marc filed his motion to intervene claiming his interest was "not adequately protected by the existing parties." In a certification in opposition to Marc's motion, defendant's attorney stated that all negotiations with plaintiff "were conducted by plaintiff, plaintiff's counsel and Marc A. Falzon. Marc A. Falzon was intimately familiar with the negotiations which occurred, was deposed and actively participated in the settlement in Court which occurred on August 29, 2007." On February 14, 2008, Marc's motion to intervene was denied. The court ruled that his motion was untimely and that his interests "were adequately represented" because he had actively participated in the settlement process.
On appeal, Marc presents the following arguments:
THE TRIAL COURT'S DETERMINATION TO DENY ME THE OPPORTUNITY TO INTERVENE AS OF RIGHT BASED ON ITS FINDING THAT MY MOTION WAS FILED UNTIMELY IS ERRONEOUS. THE MOTION TO INTERVENE WAS FILED WITHIN A REASONABLE TIME AFTER THE LONG DELAYED CONSENT ORDER WAS SUBMITTED FOR REVIEW AND I LEARNED FOR THE FIRST TIME THAT THE SETTLEMENT HARMED MY INTERESTS IN WAYS THAT WERE UNKNOWN TO ME AT THE TIME THE SETTLEMENT WAS PLACED ON THE RECORD.
REVIEW OF THE CONSENT ORDER REVEALED THAT THE SETTLEMENT HAD TERMINATED MY FATHER'S OBLIGATION TO PROVIDE ME WITH CHILD SUPPORT FOR PERIODS WHEN I WAS NOT IN SCHOOL, IGNORED APPROPRIATE LEGAL REQUIREMENTS SET BY NEWBURGH v. ARRIGO AND N.J.S.A. 2A:34-23a TO ASSURE A FAIR AND SUSTAINABLE ALLOCATION OF MY PARENTS' CONTRIBUTION TOWARD MY UNREIMBURSED COLLEGE EXPENSES, AND MISSTATED CRITICAL FINANCIAL FACTS, ALL TO MY DISADVANTAGE.
We are satisfied that these contentions do not warrant extended discussion. R. 2:11-3(e)(1)(A) and (E).
Based on our review of the record, we are satisfied the trial court's findings and conclusions are fully supported by the record, and the court correctly applied well-settled legal principles. This court has recognized that when one parent seeks a contribution for college expenses from the other parent, it is usually unnecessary for the child "to proceed against either parent." Martinetti v. Hickman, 261 N.J. Super. 508, 513 (App. Div. 1993). Moreover, the settlement agreement approved by the court provides for the adjustment of college expenses during Marc's junior and senior years, and there has been no showing that the settlement agreement is unfair or unreasonable, or that the parties failed to consider relevant facts or circumstances. See Newburgh v. Arrigo, 88 N.J. 529, 545 (1982) (listing various factors a court should consider when evaluating a claim for contribution toward the cost of higher education); N.J.S.A. 2A:34-23(a) (listing factors to be considered in determining child support in cases not governed by Rule 5:6A).
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