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Miller v. Miller

February 16, 2010

SUSAN MILLER (N/K/A BAITA), PLAINTIFF-RESPONDENT,
v.
MATTHEW P. MILLER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-1099-91-S.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 15, 2009

Before Judges Gilroy and Simonelli.

Defendant Matthew Miller appeals from that part of the January 22, 2009 Family Part order fixing the amount of child support and child support arrears; and requiring him to reimburse plaintiff Susan Baita for college expenses for the parties' children and to pay eighty percent of all future college expenses. Defendant also appeals from the trial court's refusal to hear oral argument on the issue of counsel fees. We affirm.

The parties were married on September 24, 1983. They divorced on July 16, 1991. Two children were born of the marriage: M.M., born in 1986, and K.M., born in 1990.

The parties' Property Settlement Agreement (PSA) required defendant to pay $650 per month for child support, which the parties based on defendant's then yearly gross income of approximately $51,000. Plaintiff was not working at the time. The PSA also required defendant to provide medical insurance and to pay all non-covered medical expenses for the children.

The PSA contained the following provision regarding the children's college education:

It is specifically understood and agreed by and between Husband and Wife that both parties have an obligation to provide for the college education of their child, taking into consideration respective income and assets of the parties at the time the children obtain the appropriate age. Parties agree to consult with a view toward adopting a harmonious policy concerning college education of the child. Accordingly, when the child is prepared to enroll in college, the party without primary custody shall have the right to approve in advance an undergraduate college consistent with the family's means the child's abilities. Any dispute in this regard shall be resolved by a court of competent jurisdiction upon application properly made. It shall be understood and agreed that each of the children shall make every effort to apply for scholarships, grants and loans prior to seeking monetary help from their parents for their college education.

Further, children shall fully cooperate with said agencies to attempt to obtain financial aid.

M.M. graduated from high school in June 2005. Before and after that time, defendant had an active role in M.M.'s college selection and paid all travel costs and expenses for his son to visit the University of California, Los Angeles, the University of Southern California, California State University, the University of Arizona (UA), the University of Texas, and colleges in Washington D.C.

M.M was accepted to UA for the 2005-06 academic year and awarded an $8000 per year scholarship. Defendant was fully aware of M.M.'s matriculation at UA. To be sure, defendant paid for and participated in M.M.'s college visit to UA, he agreed to M.M.'s choice of UA, he assisted his son in moving to Arizona, he attended M.M.'s freshman orientation, and he admitted that he would help support M.M. while he was at UA.

Defendant was also fully aware of the cost of M.M.'s college education at UA. In fact, he prepared a four-year cash flow analysis of those expenses. Notwithstanding the PSA's requirement that the parties contribute to those college expenses based on their respective incomes, defendant, plaintiff and M.M. discussed the cash flow analysis and agreed to each pay one-third of M.M.'s college expenses, with M.M.'s portion paid from his scholarship, student loans and work study or part-time work. According to plaintiff, she only agreed to this arrangement for the first year because she could afford her one-third portion.

M.M. began the 2005 fall semester at UA. He left after the 2006 spring semester and lost his scholarship. M.M. then attended Ocean County College (OCC) for the 2006 fall semester, with defendant and plaintiff each paying one-third of his college expenses. Plaintiff ...


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