On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1277-96.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Messano.
In this post-judgment Family Part matter, defendant Jose Orero appeals from the denial of his motion for reconsideration that followed entry of an earlier order that granted plaintiff Ronda Orero's motion to compel defendant to contribute to the costs of their daughter's college education. We have considered the arguments defendant raises in light of the record and applicable legal standards. We affirm.
The parties were married in 1987 and divorced in 1996. Two children were born of the marriage, a daughter in 1989 and a son in 1991. The property settlement agreement (PSA) incorporated into the parties' divorce judgment provided: "The [p]arties... agree that if the children are capable and have the desire to attend college they shall each contribute to the best of their ability."
On July 18, 2008, plaintiff moved for an order compelling defendant to contribute to the expenses of their daughter's college education. In support of the motion, she attached a letter sent by her attorney to defendant a year earlier when the couple's daughter was about to matriculate as a freshman at the University of Colorado. The July 2007 letter set forth the amount of financial aid that plaintiff expected, and requested defendant to contribute some of the balance of the expenses. Plaintiff indicated her willingness to contribute nearly fifty percent of the unpaid balance from savings in a "529 account," and agreed to split the remainder with defendant. Defendant responded by letter to plaintiff's counsel proposing a "'one time college credit' of $20,015 per child." Defendant conditioned his payment of the "one time college credit" upon each child's ability to maintain a certain grade average while in college, and other modifications of the PSA. Plaintiff rejected the proposal out of hand as "an attempt... to lower or eliminate [defendant's] child support obligations."
In her certification supporting the motion, plaintiff alleged that defendant was fully aware of their daughter's intention to attend college in Colorado. After applying the funds available from an "NJBest 529" account, plaintiff paid the shortfall during the prior school year through "loans which [she] guaranteed." Plaintiff claimed defendant remained employed at General Electric, as he had for the last thirty years, and "ma[de] well in excess of $100,000 a year with full benefits." On the other hand, plaintiff was "employed as a hair dresser and ma[de] approximately $15,000 a year." Plaintiff attached a current Case Information Statement (CIS) to corroborate her claims.
Defendant's opposing certification claimed that his daughter had spoken to him about potential colleges on only one occasion, and that he "suggested... that she look at Rutgers and other schools within the State of New Jersey." His daughter, however, opposed his suggestion. Defendant claimed that he had only one communication with his daughter after she started school, and that he was not "provided with [her] grades or progress reports since she started college." Referencing plaintiff's counsel's letter from the prior year, defendant claimed that he had never received the tuition bill. Defendant further alleged that his salary was $85,000 per year, and that he was helping three daughters from a prior marriage "with their college expenses." He was "willing to contribute" toward his daughter's college costs, "but... d[id] not feel that [he] should be made to pay 50%...."
Plaintiff's reply certification noted that defendant's W-2 reflected earnings in excess of $91,000, and that defendant had not disclosed the value of his pension with General Electric. Plaintiff attached several e-mails that she sent to defendant, alerting him of their daughter's interest in attending school in Colorado prior to her actual matriculation in 2007.
On August 6, 2008, after oral argument, Judge Peter J. Melchionne entered an order that required defendant to pay plaintiff fifty percent of their daughter's "college tuition/costs for the college year 2007-2008 within 60 days...." The order further provided that defendant would pay plaintiff "50% per annum... by August 15 of each year for the college years commencing in the fall semester 2008... until [their daughter's] graduation." The judge denied plaintiff's request for counsel fees.
Defendant filed a motion for reconsideration on August 25, and plaintiff cross-moved to enforce litigant's rights and sought counsel fees. Defendant reiterated his claim that his daughter had not consulted him prior to deciding to attend college in Colorado. Since plaintiff had not demonstrated that his daughter was actually enrolled for the 2008 school year, defendant asked that his daughter be declared "emancipated," and sought a reduction in child support under the PSA. Defendant claimed that his income for the last two years had been "inflated" because his employer was short-staffed. Lastly, defendant alleged that the judge had "overlooked the Newburgh v. Arrigo*fn1 factors" by failing to take into account his obligations to his other children.
In her certification in support of the cross-motion, plaintiff alleged defendant had not complied with the prior order by paying her the monies she had expended during the 2007-2008 school year. Plaintiff attached proof of her daughter's attendance at classes for the current school year, and stated she was using the child support payments she received under the PSA to defray her daughter's shelter expenses, thus reducing ...