On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-387-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 25, 2009
Before Judges Rodríguez, Payne and Waugh.
Defendant Brett D. Horne appeals from orders of the Family Part that require him to: (1) pay for college expenses for his daughter Amanda; (2) reimburse plaintiff Robin Manfredi (formerly Horne) for certain expenses in connection with the marital residence; and (3) pay Manfredi's counsel fees. We affirm in part and remand in part.
The parties were divorced in 2004 after nineteen years of marriage. They have two children, Amanda and Nicole. Nicole was found to be emancipated in a November 2007 order and is not involved in this appeal. In an earlier appeal involving the parties, we determined that Amanda became emancipated when she became a part-time student and started full-time employment. Horne v. Horne, No. A-2043-07T2 (App. Div. Nov. 13, 2008).
As it relates to Amanda, this appeal concerns responsibility for payment for her first two years of college at Florida State University. The issue is governed by Paragraph 12 of the parties' property settlement agreement (PSA), which provides as follows:
The parties agree that, if the children have the ability, and if they are financially able to pay for the children's college education, which costs shall include tuition, room and board, books, and reasonable costs of transportation (4 round trips per year), the children shall either attend a state university or community college. The parties agree that the children shall apply and be responsible for all financial aid, loans, grants and scholarships available to them prior to either party contributing to their education. After all financial assistance is calculated, then the parties shall share that net amount due with the Husband being responsible for 60% and the Wife being responsible for 40%. Said college tuition shall not exceed the cost of two years of college at Rutgers the State University of New Jersey. The parties shall modify the then existing child support order when either child enters college. The Husband shall pay 60% costs for both children's college tuition, costs, fees, room and board. At that time, the Husband shall pay $800 per month in child support for the remaining unemancipated child and contribute 60% of the costs for the other child's college tuition, costs, fees, room and board during the (30) thirty weeks of the college year. The Wife shall contribute 40% of the college tuition, costs, fees, room and board for the child enrolled as a full time student. The parties agree that Husband shall pay the $1000.00 per month child support for the remaining 22 weeks of the year when the college classes are not in session. Said payments shall be made directly to the Wife. The parties agree to split the first two years of the college costs and tuition, including books, fees, room and board with Husband paying 60% and Wife paying 40%. Neither party shall have an obligation to contribute after the first two years of college for costs but the child support obligation shall continue until the child is emancipated as defined herein.
This agreement is based upon the parties understanding of their respective earnings, Husband earning $95,000.00 and Wife earning $58,000.00. The Husband's share shall not exceed the equivalent of 60% of the cost of Rutgers the State University of New Jersey and that the Husband shall only be required to contribute for two years of college education for each child.
Unlike the parties in Gac v. Gac, 186 N.J. 535 (2006), and Newburgh v. Arrigo, 88 N.J. 529 (1982), the parties now before us discussed and agreed in advance on their respective obligations in the event their children sought to attend college. In such cases, the obligation of the courts is to interpret and enforce the parties' own agreement. Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995) (citing Petersen v. Petersen, 85 N.J. 638, 642 (1981)). We will not draft a new agreement for the parties. Ibid.; Rolnick v. Rolnick, 262 N.J. Super. 343, 352 (App. Div. 1993) (quoting Berkowitz v. Berkowitz, 55 N.J. 564, 569 (1970)).
Although Amanda and her father had discussed her attendance at college prior to the divorce, their relationship became strained thereafter. Consequently, he was not involved in her choice of Florida State. Nevertheless, Amanda asked Horne to attend her student orientation with her and he was initially willing to do so, but the plan fell through when Horne insisted on their being accompanied by his girlfriend.
It appears from the record that Amanda attended Florida State as a full-time student during the 2005-2006 and 2006-2007 academic years. She became a part-time student for the 2007-2008 academic year, during which she was also working full-time and attempting to establish Florida residency to lower her educational expenses.*fn1
On May 24, 2006, Manfredi filed a motion in aid of litigants rights, R. 1:10-3, seeking to enforce Horne's college-payment obligation under the PSA. A plenary hearing was held over several days during the second half of 2007. The trial judge determined that Horne was obligated to contribute to Amanda's tuition and that he was able to do so during the relevant period, noting in particular a significant discrepancy between the ...