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Subbie v. Subbie


May 29, 2009


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

Per curiam.


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 written opinions of December 7, 2007 and December 19, 2007.

Because family courts have "special jurisdiction and expertise in family matters," we accord deference to a trial court's findings of fact that are supported by substantial credible evidence in the record. Cesare v. Cesare, 154 N.J. 394, 412 (1998). Moreover, because trial courts enjoy a more familiar experience in hearing the case and observing witnesses, they "[have] a better perspective than a reviewing court in evaluating the veracity of the witnesses." Cesare, supra, 154 N.J. at 412 (internal citations omitted). "Therefore, an appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] 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.'" Ibid. (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).

It is well-settled that a parent's obligation to contribute towards a child's necessary education may include college and post-graduate costs. Necessary education is "a flexible concept that can vary in different circumstances." Id. at 543-44. In Newburgh, supra, 88 N.J. at 545, the Supreme Court established a non-exhaustive list of factors courts should consider in evaluating whether a parent is obligated to contribute to their child's postgraduate education expenses. Those factors include whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education, the parents' and child's expectation with respect to higher education, the financial resources available to the parents and the child, as well as the child's aptitude for the higher education sought, and the relationship of the child to the paying parent. Ibid.

Six years after Newburgh, supra, was decided, the Legislature codified the Newburgh factors into law. See N.J.S.A. 2A:34-23(a). Gac v. Gac, 186 N.J. 535, 543 (2006). The Newburgh factors and the statutory incorporation of those factors into law demonstrate both legislative and judicial recognition that in appropriate circumstances, parents may be responsible for supporting their children while they pursue higher education. Kiken v. Kiken, 149 N.J. 441, 450 (1997) (citing Newburgh, supra, 88 N.J. at 453-54). A trial judge "should balance the statutory criteria of N.J.S.A. 2A:34-23(a) and the Newburgh factors, as well as any other relevant circumstances, to reach a fair and just decision whether and, if so, in what amount, a parent or parents must contribute to a child's educational expenses." Gac, supra, 186 N.J. at 543.

Here, Judge Cassidy appropriately considered the relevant Newburgh factors and concluded that plaintiff had the ability to contribute towards their daughter's higher education, "recognized [her] academic achievements and that she would be attending college[,]" did not object to her attending college but to her choice of college, and that although plaintiff's relationship with her was strained, such had not always been the case. The court reasoned that the strained relationship flowed from the divorce itself, as well as what appeared to be a lack of effort on plaintiff's part "to attempt to repair any damage that that proceeding may have done to his relationship to his children." Finally, the court observed that because it was declaring their son emancipated, plaintiff's additional child support obligation would be lowered. The factual findings and legal conclusions are well-supported by the evidence and we discern no legal basis to disturb them. Rova Farms Resort, Inc., supra, 65 N.J. at 484.

Plaintiff's remaining arguments that the counsel fees awarded to defendant were not justified and that the court's determination that their son was emancipated as of 2006 rather than 2005 was improper, are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.

The allowance of counsel fees and costs in a family action is discretionary. Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004) (citing Williams v. Williams, 59 N.J. 229, 233 (1971)). On appeal, a trial court's decision to award counsel fees will not be reversed absent a showing of an abuse of discretion involving a clear error in judgment. Chestone v. Chestone, 322 N.J. Super. 250, 258 (App. Div. 1999) (citing Berkowitz v. Berkowitz, 55 N.J. 564, 570 (1970)). Judge Cassidy appropriately considered the financial circumstances of the parties, their ability to pay the fees incurred, the reasonableness and good faith of the positions advanced by the parties, what fees had previously been paid by the parties, the results the parties obtained, and whether any fees were incurred as a result of the necessity to enforce any prior orders. Judge Cassidy's consideration of these factors comported both with statutory and court rules governing the award of counsel fees in family-type actions. See N.J.S.A. 2A:34-23; see also R. 5:3-5(c); R. 4:42-9(a)(1).

Likewise, the record supports Judge Cassidy's conclusion that their son should be declared emancipated as of 2006. Plaintiff argues that he earned approximately $10,000 in 2005/2006 and 2006/2007, purchased a brand new Mini Cooper automobile, and incurred a large credit card debt, factors which plaintiff contends demonstrate that he should have been declared emancipated as of May 2005. The court did not find the fact that their son worked, earning the same amount of money in 2005 and 2006, as dispositive because he had historically worked, even prior to the divorce, and plaintiff, at that time, contributed towards his college education. The court noted defendant simply sought a continuation of what plaintiff had contributed prior to the divorce. Further, the court observed that the order directing plaintiff to be responsible for the $1800 reimbursement payment to defendant "as it related to [their son's] senior year" had been encompassed in a prior order that specifically reserved to trial the possibility of an adjustment of the order. However, notwithstanding that the prior order was entered without prejudice to plaintiff to seek an adjustment at trial, plaintiff failed to comply with the order to reimburse defendant the $1800 she expended for his share of their son's college costs. The court reasoned that it "cannot condone [plaintiff's] flagrant violation of the Court's previous order." We conclude that neither legal error nor any mistaken exercise of judicial discretion warrants our intervention on this issue.


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