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Gonzalez v. Valentine

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 10, 2009

GILBERT GONZALEZ, PLAINTIFF-APPELLANT,
v.
ROSEMARIE RAMOS VALENTINE, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, FM-06-2090-93.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 26, 2009

Before Judges RodrÍguez and Reisner.

Plaintiff Gilbert Gonzalez appeals from orders of the Family Part dated February 21, 2008, July 25, 2008 and August 13, 2008, concerning defendant Rosemarie Valentine's obligation to pay her share of their older son's college tuition. We vacate those portions of the three orders under review that concern Valentine's college expense obligation and remand this matter to the trial court.

I.

The parties were divorced in 1997. They have two sons. By order dated January 15, 2004, the Family Part decided the parties' obligation for the older son's college expenses as follows: The son was to live at home and pay for his school lunches. Thus, neither defendant nor plaintiff was responsible for buying the son a college meal plan or paying for college housing. In addition to living at home and paying for his own lunches, the son was responsible for paying one-third of his other college expenses. The parents were responsible for the remaining two-thirds, with defendant to pay 70% of that amount (70% of 2/3), and plaintiff to pay 30% of that amount (30% of 2/3). We reject plaintiff's appellate contention that defendant owes "70%" of the son's college expenses.

At some point, defendant stopped paying her share of the college expenses, and began accruing arrears. On May 2, 2005, the parties signed an agreement, later incorporated into a June 3, 2005 court order, requiring defendant to pay her share of the college expenses at the rate of $125 per week through a wage garnishment. However, the wage garnishment stopped in June 2007, when defendant voluntarily retired from her job.

By order dated August 17, 2007, the court granted defendant's motion to emancipate the older son, on the grounds that he was then twenty-four years old and had completed his college education. However, while the court order provided that defendant's child support obligation for the older son "shall be terminated effective June 29, 2007, the date Defendant filed her motion," the order also provided that "any arrears that may still exist . . . must be paid at a rate of $125 per week until said arrears are reduced to zero." It is clear from the transcript of the August 17 hearing that the "arrears" in question were for college expenses.*fn2

The court also ordered the Probation Department to audit defendant's account, primarily in response to plaintiff's claim that defendant still owed $10,753.48 toward the older son's tuition, while the Probation records showed that she owed about $7000. After Probation mistakenly declined to audit the college arrears, plaintiff filed another motion and on November 16, 2007, the court again ordered Probation to conduct the audit.

However, when Probation audited defendant's arrears account, it did not properly calculate the amount defendant still owed for college expenses because it treated that obligation as ending when the son was emancipated.*fn3 Further, in an order dated February 21, 2008, the court mistakenly confirmed that view by indicating that the emancipation order had terminated defendant's obligation to pay her share of the college expenses.

The February 21, 2008 order continued child support for the younger son and provided that "arrears are to be paid back at the rate of $125 per week." However, it did not indicate whether the $125 was child support for the younger son or college tuition for the older son. Further, the order confirmed the audit results showing "the current arrears as of January 31, 2008 are set at $5159.46," an amount based on Probation's mistaken understanding that defendant's tuition obligation ended when the older son was emancipated.

Plaintiff, then represented by counsel, filed a motion for reconsideration, and defendant filed a motion to emancipate the younger son. On July 25, 2008, the court entered an order granting emancipation, but denying plaintiff's motion for reconsideration of the August 17, 2007 order. Although the court later entered a supplemental order on August 13, 2008, requiring defendant to pay $125 per week toward arrearages, that order was not specifically directed to college expenses, and did not correct the underlying error in the calculation of the arrears.

II.

Ordinarily, we would defer to the trial court's decisions concerning tuition payments, absent an abuse of discretion. See Moss v. Nedas, 289 N.J. Super. 352, 359 (App. Div. 1996). However, in this case, deference is not warranted because the orders on appeal were the result of inadvertent error.

Because we are convinced that Probation made errors in calculating defendant's college expense obligation, we remand this matter to the trial court for the following: a supplemental Probation audit limited to determining (1) the total dollar amount that defendant was obligated to pay as her share of the older son's college expenses, and (2) the dollar amount she still owes for her share of the older son's college expenses. Following any appropriate proceedings to settle the amount if the parties disagree, the trial court shall enter an order setting forth the total amount of defendant's obligation for college expenses and the amount she still owes, ordering defendant to pay the amount she still owes, and setting a schedule for payment. We do not retain jurisdiction.

Remanded.


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