April 9, 2009
JACALYN DI RENZO, F/N/A JACALYN ZIGARELLI, PLAINTIFF-RESPONDENT,
CARL ZIGARELLI, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-45319-92.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2009
Before Judges Lisa and Sapp-Peterson.
Defendant appeals from the December 6, 2007 order directing defendant to pay thirty-five percent of the net college expenses incurred by his two daughters while they attended college. We affirm.
The parties divorced on November 6, 1991. The Dual Final Judgment of Divorce (FJOD) did not address the parties' obligation, if any, for the girls' college costs. The girls were eight and six years old at the time of the divorce. The older daughter incurred $124,000 in total net college expenses. A structured settlement she received as part of a settlement from a negligence action was partially used for her education costs. The younger daughter attended a two-year college and later transferred to Montclair State University. Defendant paid half of her net college expenses for the two-year college. Plaintiff filed a motion seeking to enforce litigant's rights. The court decided the motion on the papers, concluding that oral argument would not advance the court's understanding of the issues or expedite resolution. The court reasoned that the motion could be resolved by applying the factors articulated in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982) and that there were no "significant substantive issues raised." The court ordered the defendant to pay thirty-five percent of the net college expenses incurred by both children. In reaching its decision, the court stated:
Plaintiff requests that defendant be directed to contribute 50% toward the children's college education. Defendant objects to plaintiff's demand, indicating that the parties agreed that the $120,000 settlement received by [their older daughter] was going to be utilized toward both children's college education. While college expenses were never discussed during the parties' divorce and the parties' Property Settlement Agreement (PSA) is silent on this issue, that does not necessarily relieve defendant of his responsibility to contribute toward the children's post-secondary education. In Newburg[h] v. Arrigo, 88 N.J. 529 (1982), the Supreme Court of New Jersey held that in appropriate circumstances, parental responsibility includes the duty to assure children of a college education. Id. at 544.
In evaluating a claim for contribution toward the cost of higher education, courts consider all relevant factors, including whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education; the amount of the contribution sought by the child for the cost of higher education; the ability of the parent to pay that cost; the relationship of the requested contribution to the kind of school or course of study sought by the child; the financial resources of both parents; and the commitment to and aptitude of the child for the requested education. Id. at 545.
The court has considered the amount of contribution sought for the cost of education, the ability of the parent to pay for the cost of the children's education, the availability of financial aid, and the commitment to and aptitude of the children for the requested education. The court finds these to be the most relevant of the factors and has applied these factors in reaching its decision.
Although the plaintiff asserts that the defendant earns more than his reported income and seeks to have the court impute income of $75,000 to the defendant, she does not substantiate these claims. The court cannot impute a salary to the defendant based merely on plaintiff's allegations. Based on the documentation provided, specifically defendant's last three pay stubs, defendant earns a gross salary of $41,600. Similarly, plaintiff's income is calculated as $76,200 based on her most recent pay stubs.
Both children have received financial aid, as shown on the tuition bills provided, and have received loans and, in [their older daughter's] case, grants as well. Both children have enrolled in college and continue to pursue their studies.
Taking into consideration the Newburg[h] factors, the court finds that the defendant is able to contribute to the children's college education expense. The court finds that based on the parties' income defendant should pay 35% of both children's college expenses. As [their older daughter] has agreed to pay 1/3 of her total college expenses, defendant shall pay 35% of the remaining balance. Plaintiff asserts that the defendant owes her $12,108.88 in college expenses for [their younger daughter] and $41,143.78 in college expenses for [their older daughter]. However, she does not clearly state how she arrived at the total cost owed to her by the defendant. Plaintiff shall present to defendant official, notarized documentation from both Villanova University and Montclair State University clearly stating the total expenses charged by each university. Upon receipt of such documentation defendant shall pay his share of those expenses.
On appeal defendant raises the following points for our consideration:
LEGAL ARGUMENT: THE DEFENDANT SHOULD NOT BE RESPONSIBLE FOR PAYING THE CHILDREN['S] COLLEGE EXPENSES AFTER THEIR GRADUATION.
B. EQUITY WOULD DEMAND THAT THE DEFENDANT SHOULD NOT BE ORDERED TO RETROACTIVELY PAY 35% OF EACH OF THE CHILDREN'S STUDENT LOANS AND/OR COLLEGE COSTS AFTER THE CHILDREN HAD GRADUATED.*fn1
(1) THE PLAINTIFF IS GUILTY OF LACHES WHICH WOULD BAR COLLECTION FROM THE DEFENDANT.
(2) PLAINTIFF'S FAILURE TO SEEK REIMBURSEMENT DURING THE YEARS THE STUDENT LOANS WERE INCURRED SEVERELY PREJUDICED THE DEFENDANT.
C. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO PROPERLY ADDRESS ALL OF THE FACTORS SET FORTH IN NEWBURG[H] V. ARRIGO.
D. THE DEFENDANT WOULD NOT BE REQUIRED TO PAY FOR COLLEGE EXPENSES UPON REVIEW OF ALL OF THE FACTORS SET FORTH IN NEWBURGH V. ARRIGO.
E. THE TRIAL COURT JUDGE FAILED TO COMPLY WITH [RULE] 1:7-4 BY FAILING TO SET FORTH HIS FINDINGS IN ACCORDANCE WITH THE RULES OF COURT.
F. THE TRIAL COURT JUDGE SHOULD HAVE SET THIS MATTER FOR A PLENARY HEARING.
We have considered the points raised in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Robert J. Brennan in his statement of reasons incorporated in his December 6, 2007 order. We add the following comments.
"The scope of appellate review of a trial court's fact- finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. We will not "'disturb the factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).
Here, the court found that the relevant factors it should consider in reaching its decision were: (1) the contribution sought; (2) the ability of the parents to pay; (3) the availability of financial aid; (4) the commitment to and aptitude of the children as "the most relevant of the factors and . . . applied [those] factor in reaching its decision."
Although there may have been a disputed issue as to whether plaintiff attempted to consult with defendant about college issues, Gac v. Gac, 186 N.J. 535, 546 (2006), there is no evidence of any estrangement between defendant and his daughters. Nor is there any evidence that defendant objected to his daughters attending college because his primary objection appears to have been the allocation of net college costs. We are satisfied that the record provides no basis for our determination that the judge's factual findings and conclusions were so wide of the mark to offend the interests of justice. Cesare, supra, 154 N.J. at 412.