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Olawski v. Olawski

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 21, 2009

DOUGLAS OLAWSKI, PLAINTIFF-APPELLANT,
v.
FRANCES OLAWSKI, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-1505-98.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 4, 2009

Before Judges Carchman and Ashrafi.

Plaintiff Douglas Olawski appeals from a December 5, 2008 order of the Family Part denying his application for reconsideration. He sought reconsideration of a September 26, 2008 order compelling him to pay one-half of the college expenses for the two children born of his marriage to defendant Frances Olawski. We conclude that the motion judge correctly enforced the Property Settlement Agreement (PSA) entered into by the parties requiring plaintiff to be responsible for an appropriate share of college expenses. We are constrained, however, to order a remand for the limited purpose of establishing the relative incomes of the respective parties so as to fix the percentage contributions to college expenses.

These relevant facts are simply stated. The parties were divorced by a judgment of January 5, 1999. Two children, Kimberly Ann, born in 1984, and Jennifer Liz, born in 1986, were born of the marriage. At the time of the divorce, the parties entered into a PSA, which provided in relevant part:

(v) College Education Costs. Both the HUSBAND and WIFE acknowledge that the children may at some time in the future decide to attend college. The choice of the college is to be agreed upon between the HUSBAND and WIFE and the child involved. Both parties recognize a financial responsibility to contribute to the children's educational needs beyond high school. It is specifically understood and agreed by and between the Husband and Wife that both parties have an obligation to provide for the college education of their children, taking into consideration the respective income and assets of the parties at the time each child attains the appropriate age. Said costs shall include but not be limited to: room, board, books, school supplies, tuition, travel expenses to and from custodial parents' residence for major vacations, and all other miscellaneous fees. All education funds of the children and student loans shall be the first source of college funding. The parties agree to consult with a view toward adopting a harmonious policy concerning the college education of the children. Accordingly, when each child is prepared to enroll in college, both parents shall have the right to approve in advance an undergraduate college consistent with the family's means and the children's ability. Any dispute in this regard shall be resolved by a court of competent jurisdiction upon application properly made.

When the motion was being considered, Kimberly had graduated, magna cum laude, from Montclair State University and Jennifer was attending William Paterson University. Both colleges were selected because they were relatively inexpensive and afforded the children an opportunity to commute from home.

In August 2008, plaintiff filed a motion seeking reimbursement of an overpayment of child support. Defendant cross-moved seeking reimbursement for college expenses for the children. Defendant had not previously sought contribution for these expenses.

Plaintiff opposed the application for college contribution noting that he had not been consulted about the children's college choices, no discussion had taken place regarding contribution, and Kimberly had graduated two years earlier.

Suffice to say, the relationship between the children and their father had been strained, and there was little communication between them on this and other issues.

As to relative income, plaintiff was employed by Stop and Shop supermarkets as an hourly employee. His Case Information Statement revealed that he earned approximately $42,000. Defendant did not file a Case Information Statement, and the only information regarding her income was defendant's oblique reference during oral argument that she was in the real estate business, and at one point earned $70,000, and at another, $50,000 or less.

The judge granted defendant's application and directed plaintiff to contribute 50% of the college expenses. He concluded that the PSA compelled plaintiff to contribute to college expenses, the incomes were relatively equal and plaintiff was to contribute an equal share. Plaintiff moved for reconsideration, and the judge denied that application. Plaintiff appeals.

On appeal, plaintiff asserts that defendant did not comply with the agreement, the failure to seek contribution at the time of the children's enrollment bars a later application for such relief, and the judge did not consider the relevant factors enunciated in Newburg v. Arrigo, 88 N.J. 529 (1982). In addition, plaintiff claims that the findings regarding defendant's income are not supported by the record. As to the claims regarding compliance with the agreement and failure to seek relief earlier, we conclude that they are without merit and require little additional discussion. R. 2:11-3(e)(1)(E). We agree, however, that the record is insufficient as to defendant's income and requires further consideration.

Before we address that issue, we offer some brief comments regarding plaintiff's other claims. As we have noted, the relationship between plaintiff and the children was strained, at best. Nevertheless, as the judge noted, the PSA addressed the issues in dispute. The PSA acknowledged that the "parties recognize a financial responsibility to contribute to the children's educational needs beyond high school." The parties recognized that "both parties have an obligation to provide for the college education of their children[.]" The agreement did call for consultation as well as parental approval of the choice of college; however, the record before us demonstrates that the colleges were selected based on proximity to the children's home as well as costs clearly in the forefront. Apparently, both children commuted to school, attending public institutions and secured available college loans, so we are skeptical of the nature of any objection plaintiff may have had to the college choices, even if consulted.

We conclude that plaintiff's reliance on Gac v. Gac, 186 N.J. 535 (2006), and Gotlib v. Gotlib, 399 N.J. Super. 295 (App. Div. 2008), are misplaced. We acknowledge the Court's admonition that in applying the Newburg factors, the failure to bring an application for college expenses before they are incurred "will weigh heavily against the grant of a future application." Gac, supra, 186 N.J. at 547. However, here, plaintiff, in the PSA, had committed to contribute to college expenses, a factor tending to neutralize the Court's observation in Gac. Also, both in Gac and in Gotlib, the moving party sought contribution to private and apparently expensive colleges that should have prompted discussion between the parties during the college selection period. Also, unlike Gac, the children's relationship with plaintiff was not compromised by their rejection of him. The record here convincingly demonstrates that Kimberly and Jennifer's college choices were premised on minimizing cost so that issues such as college choice and cost were essentially eliminated from any dispute.

We now address the issue of allocation of the college costs. Paragraph (v) of the agreement identifies the standard for allocation and provides that the obligation for contribution shall "tak[e] into consideration the respective income and assets of the parties at the time each child attains the appropriate age." The record supports plaintiff's assertion that his income was in the mid-forty thousand dollar range. Other than a brief colloquy during oral argument where defendant claimed her income was in the fifty-thousand dollar range, the record is devoid of information as to her earnings or assets.

The potential significant disparity in income between the parties requires defendant to be more forthcoming as to her actual income. We recognize that a remand will generate more cost where resources are limited; yet equity demands that all of the information be provided so that the motion judge has the benefit of all of the relevant facts on which to base his decision.

Reversed and remanded for a hearing consistent with this opinion. We do not retain jurisdiction.

20091221

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