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Subbie v. Subbie

May 29, 2009

JOHN P. SUBBIE, PLAINTIFF-APPELLANT,
v.
MARIA SUBBIE, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-309-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 26, 2009

Before Judges Lisa and Sapp-Peterson.

Plaintiff appeals from that part of the December 7, 2007 Family Part order (1) requiring him to share in the college education expenses of his daughter, a student at New York University (NYU); (2) requiring him to reimburse defendant for a portion of the college expenses she incurred on behalf of their oldest child; and (3) awarding counsel fees to defendant. Plaintiff also appeals from the February 1, 2008 order denying reconsideration. We affirm.

Plaintiff and defendant, who were previously married to each other and divorced, once again married and again divorced on February 13, 2007. Three children were born to the couple, a son and two daughters. In May 2006, while the divorce complaint was pending, defendant sought pendente lite relief for the children's college expenses. Plaintiff cross-moved for dismissal of the motion and counsel fees. The court entered an order on May 19, 2006, directing plaintiff to reimburse defendant $1800 towards their son's 2005-2006 college tuition, and also ordered that the parties equally share towards those costs through May 2007. All other relief defendant sought related to college expenses was denied pending a plenary hearing on the issue.

Several months later, defendant filed a motion to enforce litigant's rights because plaintiff had failed to reimburse her the $1800 as previously ordered by the court. Plaintiff cross-moved to emancipate their son, who was attending his fifth year of college, and to re-compute child support. In an order dated October 19, 2006, the court granted defendant's motion to enforce litigant's rights, awarded counsel fees to defendant, and reserved the issues of their son's emancipation and the recalculation of child support to the plenary hearing.

The plenary hearing was conducted over non-consecutive days between February and May 2007. At its conclusion, the court issued a twenty-eight-page written opinion dated December 7, 2007. Of relevance to this appeal is the court's decision regarding plaintiff's contribution towards their daughter's college costs, reimbursement of the $1800 to defendant towards their son's senior year tuition, his emancipation issue, and the award of counsel fees.

Based upon the factors articulated in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982), the court concluded that had the marriage remained intact, both parents, who held college degrees, would have expected their daughter to attend college, they each possessed the financial resources to assist in defraying the college costs and would have contributed to those costs. Further, although recognizing the strained relationship plaintiff had with their daugher, the court nonetheless concluded that plaintiff should be required to contribute towards her education. In ordering plaintiff to contribute towards her higher education, the court agreed that the cost to attend NYU, her choice of college, was beyond the financial means of both parents. The $6000 per year the court ordered plaintiff to contribute was based upon what the court concluded was plaintiff's financial ability, irrespective of whether their daughter attended NYU. The court also ordered that while plaintiff would not be responsible for payment of their son's fifth year of college, he was still obligated to pay, with interest, the $1800 the court previously ordered him to pay, noting that plaintiff had flagrantly disregarded its previous order. Finally, the court again ordered that plaintiff pay $738 towards defendant's counsel fees, which amount was previously ordered on October 19, 2006.

The court reserved on the issue of counsel fees in connection with the plenary hearing. In its supplemental decision of December 17, 2007, the court recognized that defendant was in a slightly better financial position than plaintiff, and acknowledged that plaintiff had made minimal payments towards his own counsel fees. The court further noted defendant's argument that she had paid a substantial portion towards her counsel fees totaling over $12,000 but was unable to pay the $7,030.50 she incurred for the plenary hearing. The court found that during the course of the litigation, defendant advanced, in good faith, reasonable settlement proposals.

As to plaintiff, however, the court found that his proposed settlement offers were not reflective of his income. Rather, the court concluded that his settlement position appeared to have been solely based upon his disagreement with his daughter's choice of school. Additionally, the court noted that plaintiff had failed to comply with an earlier order to reimburse defendant the $1800 she expended on behalf of their son's college expenses. Finally, the court observed that plaintiff had prevailed on only one of his claims, namely, the emancipation date for their son, while defendant was the prevailing party on most of her claims.

In accordance with its findings, the court ordered plaintiff to pay counsel fees to defendant's counsel in the amount of $4,262.50, payable over a ten-month period at the rate of $426.25 per month.*fn1 Plaintiff moved for reconsideration, which the court denied. The present appeal followed.

On appeal, plaintiff contends (1) that he should not be held responsible for any portion of their daughter's tuition and fees incurred at NYU, (2) the counsel fee award to defendant was not justified, and (3) the court should have declared their son emancipated in 2005, thereby eliminating any responsibility for their son's college tuition after May 2005 or, alternatively, the court should have awarded him counsel fees in connection with the emancipation claim on which he prevailed.

We have considered plaintiff's arguments in light of the record and applicable legal principles. We affirm substantially for the reasons expressed in Judge Karen Cassidy's comprehensive and well-reasoned ...


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