On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-03378-93.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 30, 2009
Before Judges Carchman and Lihotz.
Defendant Victor Papa appeals from a June 10, 2008 order of the Family Part finding that defendant was in violation of litigant's rights, R. 1:10-3, and ordering defendant to "pay one-half of all college and college related expenses for the two unemancipated children" of the marriage. The order was made retroactive to January 2008, and included an additional provision applying defendant's 2007 state or federal tax refund to his obligation. We affirm.
We briefly set forth the relevant facts. Defendant and plaintiff Patricia A. Papa were divorced by a judgment of November 3, 1993. Two daughters were born of the marriage and both have resided continuously with plaintiff with little contact with defendant. Both daughters accomplished significant academic achievements, and the oldest daughter matriculated at the University of Michigan, while the younger daughter matriculated at the University of Maryland. Both daughters receive the maximum available financial assistance, and even with such assistance, the oldest daughter's remaining annual college expenses approximated $21,000 while the younger daughter's remaining expenses approximated $26,000.
In October 2007, defendant moved to reduce or terminate child support, and in response, plaintiff moved to compel defendant to pay for one-half of the college and college-related expenses for the children. After the filing of the motion, the judge ordered the parties to "address all relevant arguments and specifically to address the twelve part test set forth in Newburgh v. Arrigo, 88 N.J. 529 (1982)." Following receipt of the requested submissions, the judge considered the relevant facts including defendant's and plaintiff's filed case information statement and after analyzing the relevant Newburgh factors, concluded that defendant would be responsible for contributing one-half of all college and college-related expenses. A motion to reconsider was denied. The decisions were memorialized by orders of November 2, 2007 and December 21, 2007. Defendant did not appeal those orders.
Defendant failed to comply with the order, and plaintiff moved to enforce litigant's rights. Defendant urged that he was a wage-earner employed by Amtrak earning approximately $60,000 to $70,000 per year and was unable to contribute to the expenses. Plaintiff, who was unemployed since July 2007, had indicated in her case information statement, that, when employed, she earned approximately $60,000. The judge entered an order enforcing litigant's rights. This appeal followed.
On appeal, defendant asserts that the judge erred in failing to grant defendant relief from the November and December 2007 orders.
We have carefully reviewed the sparse record presented and find no merit in defendant's argument. As we have noted, the judge analyzed and applied the relevant Newburgh factors in deciding the October application, concluding:
The defendant freely admits he would have contributed to the college education of the parties' children if he were still living with them. The Court finds that both daughters had an expectation to attend college and that both parents have an ability to pay. The daughters demonstrate an aptitude commensurate with the level of education they are pursuing. Furthermore, "[a] relationship between a non-custodial parent and a child is not required for the custodial parent or the child to ask the non-custodial parent for financial assistance to defray college expenses." Gac v. Gac, 186 N.J. 535, 542 (2006).
In denying defendant's application to reduce child support, the judge further concluded:
The standard for modification of a child support obligation is "changed circumstances" as defined under Lepis v. Lepis, 83 N.J. 139, 146 (1980). In determining the impact and magnitude of a change in circumstances, the reviewing Court must measure from the inception of the child support obligation to the present circumstances. Foust v. Glaser, 340 N.J. Super. 312, 316 (App. Div. 2001). The moving party bears the burden to prove that such change in circumstances requires a Court to modify the existing child support obligation. Lepis, supra, 4 N.J. at 157. A prima facie showing of changed circumstances must be made before a court will order discovery of an ex-spouse's financial status for the purposes of support modification.
This Court finds that the defendant failed to demonstrate a prima facie showing of a "change in ...