November 18, 2009
MARILYN GORMAN F/K/A MARILYN CRUZ, PLAINTIFF-APPELLANT,
LUIS CRUZ, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, FM-16-703-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 22, 2009
Before Judges Wefing, Grall and LeWinn.
Plaintiff Marilyn Gorman, formerly known as Marilyn Cruz, and defendant Luis Cruz were divorced in 2005. Plaintiff appeals from orders entered on her post-judgment motion to enforce their settlement agreement and her motion for reconsideration. She challenges the court's modification of defendant's obligation to maintain life insurance for the benefit of their children, the denial of her request to compel her former husband to contribute to their eldest daughter's post-high school education and the counsel fees plaintiff incurred on the motions. Because the court's determinations are not supported by the record and inconsistent with a reasonable interpretation of the parties' agreement and the relevant legal principles, we reverse.
The parties were married in 1987, and their children were born in 1988 and 1993. The final judgment entered in 2005 incorporates their settlement agreement. It provides for plaintiff to serve as the children's primary residential custodian and defendant to pay child support until emancipation. The agreement also requires defendant to provide medical insurance for his children that is available through his employment and to pay two-thirds of the children's uncovered medical, optical, dental and pharmaceutical costs. The parties also agreed to "pay for the college educations of the children in accordance with their abilities at the time those expenses are incurred."
Paragraph 2.6 of their agreement includes this definition of "emancipation":
(a) The completion of the child's formal education on a matriculated basis, whether she/he graduates from a four year undergraduate school, college, university or technical school, it being understood that so long as the child is diligently pursuing a formal education through a four-year full time undergraduate college education and obtaining passing grades, the child shall not be considered emancipated. In no event shall child support continue for the child beyond that child attaining the age of 23 years;
(b) Upon completion of any of the aforesaid segments of the child's education and upon failure to commence the next segment of her education, or upon leaving school, the child shall be deemed emancipated unless failure to continue on with her education as a result from injury or illness or some other cause beyond the child's control;
(e) The child obtaining full-time employment in lieu of a full-time formal college education; and
(f) Any other "emancipating" events, as defined by applicable statute and case law.
In addition to his agreement on support, defendant assumed two obligations to maintain life insurance. Despite a mutual waiver of alimony, he agreed to maintain a life insurance policy in the amount of $200,000 naming plaintiff as the primary beneficiary. And without regard to emancipation of either child or his support obligation, defendant agreed to designate their children as the primary beneficiaries on his "retirement system life insurance policy while he is active...."
The parties' eldest daughter was about seventeen years of age at the time of her parents' divorce in 2005. In June 2006, when she was eighteen years old, she enrolled in the Parisian Beauty Academy to study cosmetology.
Plaintiff remarried in August 2006, and in Spring 2007 she gave birth to her second husband's child. Although plaintiff intended to return to work after the summer of 2007, her employer had replaced her and did not have any work for plaintiff.
In September 2007, plaintiff, through her attorney, commenced efforts to resolve questions about enforcement of the agreement incorporated in the parties' final judgment of divorce. She sought modification of child support, contribution to the cost of their eldest daughter's education at the Parisian Beauty Academy, amounts due for uninsured health care expenses incurred by the children and proof of defendant's compliance with his obligations to provide life insurance under the terms of their agreement.
The parties were unable to resolve the issues. In March 2008, plaintiff filed a post-judgment motion to compel defendant to pay his share of the costs of the Parisian Beauty Academy, his share of the children's medical expenses not covered by insurance and additional child support. She also sought an order directing defendant to provide proof of his compliance with their agreement on life insurance. Defendant filed a cross-motion seeking an order emancipating his eldest daughter and modifying child support.
By the time the motion was decided, plaintiff had found a new job and expected to earn $35,000 after completing the training period. Defendant was employed, as he had been at the time of the divorce, in a position in which he is an active participant in the Police and Firemen Retirement System. His pay stubs for 2008 reflect earnings at a rate of about $100,000 annually.
The parties' children had continued their educations. Their eldest daughter had obtained a Cosmetology Certificate and full-time employment in her chosen field; she was earning about $255 per week or $13,260 per year. The total cost of education at the Parisian Beauty Academy was $13,332. Defendant asserted that he had contributed $1000 to that expense, and plaintiff claimed she had contributed $1792 and helped her daughter secure the loans used to finance the remainder of the cost. Their youngest daughter was attending the eighth grade in a public school district.
On June 6, 2008, the trial court entered two orders addressing the motion and cross-motion. The court emancipated the parties' eldest daughter. In addition, the court directed defendant to supply proof that he had designated his youngest, but not his eldest, daughter as a primary beneficiary of the life insurance available to him as an active member of the Police and Fire Retirement System; pay two-thirds of the outstanding medical expenses upon receipt of proof of the expenses; and pay child support in an amount calculated pursuant to the guidelines on the basis of the parties' respective earned income. The guidelines worksheet, which is appended to the order, reflects that defendant has about 71% and plaintiff about 29% of their total net income. Neither party challenges that calculation on appeal.
Plaintiff's applications for contribution from defendant to the cost of the eldest daughter's post-high school education and an award of counsel fees on the motion were denied.
On June 27, 2008, plaintiff moved for reconsideration of three of the court's determinations. Her objections were to: the decree allowing defendant to exclude their eldest daughter as a beneficiary of his life insurance; the denial of her application for a contribution to the cost of the Parisian Beauty Academy; and the denial of her application for counsel fees. Defendant opposed that motion.
The trial court denied all relief. The statement of reasons accompanying the order provides:
The court emancipated [the eldest child] as she is over 18 and not in school. Therefore[, she has] no insurable interest in her father. [That child] did not apply for school costs until the costs had been incurred and paid. She could have been in court to get payment from her Dad up front.
But [she] waited until after all were paid leaving Dad no choice.
On this appeal plaintiff contends that the trial court's ruling on responsibility for the expense of their daughter's post-high school, vocational education, the modification of agreement on life insurance and the denial of counsel fees are the product of a mistaken exercise of discretion. We agree.
Decisions on child support are entrusted to the sound exercise of the judge's discretion. Caplan v. Caplan, 182 N.J. 250, 271 (2005). Our review is limited to determining whether the judge's factual findings are "supported by adequate, substantial, credible evidence" and the conclusions reached were based upon a proper understanding of the relevant law. See Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (discussing deference owed to the factual findings of judges assigned to the family part due to their "special expertise" in family matters); N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002) (noting that deference is not afforded to determinations based on a "misunderstanding of the applicable legal principles").
Where matters in dispute on a post-judgment motion in an action for divorce are addressed in an agreement between the parties, the agreement is "'entitled to considerable weight with respect to [its] validity and enforceability' in equity, provided [it is] fair and just." Dolce v. Dolce, 383 N.J. Super. 11, 20 (App. Div. 2006) (quoting Petersen v. Petersen, 85 N.J. 638, 642 (1981)); see also Lepis v. Lepis, 83 N.J. 139, 153 (1980). Where the meaning of the agreement is in dispute, "[t]he court's role is to consider what is written [in the agreement] in the context of the circumstances at the time of drafting and to apply a rational meaning in keeping with the 'expressed general purpose.'" Pacifico v. Pacifico, 190 N.J. 258, 266 (2007) (quoting Atl. N. Airlines, Inc. v. Schwimmer, 12 N.J. 293, 302 (1953)). Nevertheless, the interpretation and enforcement of provisions of an agreement governing support of children is always guided and restricted by fundamental principles recognizing the parents' shared obligation to support their children and their children's right to receive it. See Dolce, supra, 383 N.J. Super. at 19-20; Ordukaya v. Brown, 357 N.J. Super. 231, 241 (App. Div. 2003).
The obligation and right to child support include "a necessary education for children" after high school whether it be in a "vocational school" or a "college." Newburgh v. Arrigo, 88 N.J. 529, 544 (1982). The existence and extent of a parent's obligation for the cost of such post-secondary education depend upon considerations of the expectations and relevant abilities of the child and his or her parents under factors identified in Newburgh and reaffirmed in Gac v. Gac, 186 N.J. 535, 543, 546-47 (2006).*fn1 "Th[ose] factors... contemplate that a parent or child seeking contribution towards the expenses of higher education will make the request before the educational expenses are incurred." Id. at 546. Accordingly, the failure to seek an order compelling contribution before the fact "weigh[s] heavily against the grant of a future application." Id. at 547.
In this case, the trial court gave conclusive weight to the timing of the application. In fact, the only reason the trial court gave for the denial of plaintiff's request to compel defendant to contribute to his daughter's educational expense was that the child did "not apply for school costs until the costs had been incurred and paid."
Gac does not support the trial court's determination. As noted above, under Gac delay is one factor that weighs against entry of an order compelling a contribution to post-secondary education. Ibid. Gac does not establish a bright line rule permitting automatic denial whenever a request is filed after educational expense has been incurred.
Moreover, the facts of this case bear little resemblance to those facts in Gac that led to the denial of that untimely application. The position of the father in Gac was as follows. Two years before his daughter started college, she informed him that she did not want to hear from him, and, thereafter, neither she nor her mother consulted him or asked him to contribute to her college education. Id. at 538-39. Defendant's position was quite different. His assertions in opposition to the motion - that he did contribute $1000 to the cost before plaintiff filed her motion - compel the conclusion that he knew about and did not disapprove of his daughter's post-high school plan to obtain education and a certification that would permit her to work as a cosmetologist.
Several Newburgh factors implicated by the timing of the request for contribution in Gac were not at issue here: whether the parent would have contributed if the marriage were intact; parental values and goals and the reasonableness of the child's expectation of assistance; and the father's ability to contribute to an educational cost that can only be deemed relatively modest when compared that of any four-year college. Newburgh, supra, 88 N.J. at 545. The inferences reasonably drawn from defendant's assertion of partial payment are that he supported, or at a minimum acquiesced in, his daughter's educational and career plan and was able and willing to contribute. That conduct and the terms of the agreement also gave rise to a reasonable expectation that he would share in the expense. Given the rationale of Gac, which focuses on the unfairness of an untimely after-the-fact demand for contribution to educational expenses incurred without consultation or reasonable expectation of payment, it was error to deny this request based upon the date on which the motion was filed.
On appeal defendant urges us to affirm the trial court's decision on a different ground. He contends that the agreement incorporated in the final judgment of divorce was one to contribute to college, not education in a technical school.
The agreement is not sufficiently clear on the point to permit us to understand it as one obligating defendant to contribute to college but absolving him of any responsibility for educating a child who pursues a career that requires less costly technical education. While the parents' agreement refers only to "pay[ment] for the college educations of the children," the provisions governing emancipation, which are quoted above, refer to diligent pursuit of a four-year college education and to "technical school." Moreover, giving due recognition to parents' obligation to contribute to their child's post-high school education to the extent they can, we decline to conclude that defendant has no obligation to educate a daughter whose skills and interests led to her successful pursuit of a career as a certified cosmetologist. Defendant's construction of the agreement would require us to give it a meaning that is both less than rational and inconsistent with the general purpose revealed by the agreement read a whole - a commitment to help a child who incurs educational expense in the diligent pursuit of a career.
An important indicator of what parties to an agreement intend is their course of performance tendered pursuant to that agreement. Joseph Hilton & Assocs., Inc. v. Evans, 201 N.J. Super. 156, 171 (App. Div.), certif. denied, 101 N.J. 326 (1985); Regan v. Regan, 246 N.J. Super. 475 (Ch. Div. 1990). Defendant's conduct - contributing $1000 toward his daughter's expenses at the Parisian Beauty Academy before the motion was filed - reflects his understanding that the agreement to contribute to college encompassed the less burdensome commitment to contribute to the cost of the Parisian Beauty Academy to provide his daughter with the education she needed for her chosen career. Newburgh, supra, 88 N.J. at 543-44.
For the foregoing reasons, we reverse and remand for entry of an order allocating the responsibility for the student loans in accordance with the parties' ability to pay.
We also reverse the provision of the trial court's order that implies defendant may eliminate his emancipated daughter as a primary beneficiary "on his retirement system life insurance policy while he is active." The parties' agreement does not tie this obligation to his duty to support the children or to their emancipation. The only limitation is discontinuation of his "active" status in the retirement system. Furthermore, this aspect of the order cannot be sustained because it was entered without a request and despite the fact that defendant did not dispute the obligation or object to plaintiff's request for information confirming his compliance.
Because we have determined that plaintiff is entitled to relief beyond that awarded by the trial court and because the court did not explain why counsel fees were denied on plaintiff's motion, which was for the most part successful, we direct the court to revisit that ruling. The court should consider plaintiff's request anew in light of paragraph 8.2, which addresses counsel fees, of the parties' agreement as well as the provisions of Rule 5:3-5(c). As the award of fees on appeal should abide the trial court's determinations on remand, we refer the issue of fees for appellate services to the trial court for disposition. R. 2:11-4.
Reversed and remanded for proceedings in conformity with this opinion.