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Kmetz v. Fusaro

October 9, 2009

LINDA KMETZ, PLAINTIFF-RESPONDENT,
v.
RICHARD FUSARO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1125-94D.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 21, 2009

Before Judges Reisner and Chambers.

In this post-judgment of divorce application, defendant Richard Fusaro appeals from the July 14, 2008 trial court order requiring him to contribute $58,703.73 toward the college costs of his daughter. We conclude that the trial court correctly required defendant to make a further contribution to his daughter's education for the last semester of her junior year and entire senior year at college. However, based on our analysis under Gac v. Gac, 186 N.J. 535 (2006), defendant should not have been required to make any further contribution to his daughter's freshman, sophomore, and first semester junior years, because plaintiff had not requested defendant to pay for those terms until those semesters had already ended, and under the circumstances, it would be inequitable to require him to do so retroactively.

Defendant and plaintiff Linda Kmetz were married on September 29, 1979, and had one child, a daughter, born in 1986. They were divorced on March 3, 1995. Their property settlement agreement contains the following provision regarding funding for their daughter's college education:

The parties acknowledge their desire for the child to attend college or other post graduate professional schooling consistent with the child's ability and the parent's financial means. Each party agrees to assist the child in such endeavor and to contribute according to their then available means after resort to all available financial aid, scholarships and part-time and summer earnings.

After graduating from high school, the daughter attended Marist College. Defendant voluntarily paid $1,500 each year toward her freshman and sophomore year college costs. In the summer between the sophomore and junior year, plaintiff requested that defendant increase his contribution because the daughter would be studying abroad, thereby incurring additional expenses. Defendant increased his contribution to $2,000 that year. In the middle of the daughter's junior year, plaintiff's attorney wrote defendant a letter dated December 29, 2006, seeking additional contributions from him toward the daughter's college expenses. When the parties could not reach a mutual agreement on the amount of defendant's contributions, plaintiff moved to compel defendant to make further contributions to the college costs, among other relief. By order dated July 20, 2007, the trial court directed that the parties exchange financial information, including updated Case Information Statements. It further provided that if the parties could not resolve the matter, another application to the court could be made.

Unable to resolve the matter, plaintiff filed a motion on May 1, 2008, to compel defendant to contribute to the daughter's college expenses. The daughter's college expenses, after deducting scholarships, grants, and loans, totaled $96,255 for four years, broken down by year as follows: freshman year - $21,607; sophomore year - $23,981; junior year $27,026; and senior year $21,509. Defendant contributed a total of $7,500 toward these expenses. He also paid $200 a week, for a total of $10,400 annually, in child support.

According to the Case Information Statements filed by the parties, defendant's annual income in 2006 was $127,048 and his net worth was $97,195, consisting primarily of his 401K; plaintiff's income in 2006 was $59,769 and her net worth was $51,948, also consisting primarily of her 401K. Both parties have remarried. In her motion, plaintiff proposed that the parties divide the daughter's four year college expenses based on the ratio of their incomes. Under this proposal, defendant would be responsible for sixty-eight percent of the college costs.

Defendant filed a cross-motion in opposition, seeking a declaration that his obligation to contribute to the college expenses had been satisfied. Further, he advised the court that he had lost his long-time employment with Schering-Plough and was out of work. His benefits from Schering-Plough were scheduled to terminate on May 14, 2009.

Without hearing oral argument, although requested in both motions, the trial court entered an order dated June 20, 2008, and amended July 14, 2008, requiring defendant to pay plaintiff $58,703.73. This sum represented his sixty-eight percent share of the college expenses, less the $7,500 he had already contributed. Further, defendant was required to pay plaintiff $660 in counsel fees.

In this appeal, defendant contends that plaintiff's application was untimely and barred by the Court's holding in Gac v. Gac, 186 N.J. 535 (2006). Defendant further contends that a plenary hearing is required in order to resolve two factual issues, namely whether he was consulted about his daughter's choice of college and whether plaintiff advised him that his contributions were insufficient.

A non-custodial parent's obligation to contribute to a child's higher education costs is determined by evaluating all of the relevant ...


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