On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1395-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 26, 2010
Before Judges Skillman and Gilroy.
Plaintiff Mark Cockroft appeals from those parts of the January 7, 2009 Family Part order that denied his post-judgment of divorce motion. Defendant Jacqueline Cockroft cross-appeals from that part of the same order denying her application for counsel fees. On the appeal, we affirm in part and reverse in part. On the cross-appeal, we reverse.
Following twenty-three years of marriage, the parties divorced on November 15, 2007. On that day, the parties placed the terms of their property settlement agreement (PSA) on the record. On December 17, 2007, the parties reduced the PSA to writing. Three children were born of the marriage: Michael, born in 1989; Mary, born in 1991; and Thomas, born in 1997.*fn1 The parties agreed to share legal custody of their children, designating defendant as the parent of primary residency, and allowing plaintiff liberal parenting time.
Pursuant to Paragraph 4.1 of the PSA, plaintiff agreed to pay child support for the three children in the amount of $372 per week. The agreed-upon amount was in accordance with the Guidelines.*fn2 Paragraph 4.2 provides "[t]he above child support shall be in addition to the Husband's obligation to contribute to the payment of those additional child-related expenses, not specifically contemplated by the [Guidelines], such as summer camp in which the Husband shall be obligated to pay 62% and the Wife 38%."
Paragraph 5.1(a) of the PSA defines emancipation in relevant part as: "Reaching the age of 18 years and not going on to college or similar . . . school, or graduation from an institution of higher learning, including but not limited to a 4 year college, a 2 year college, vocational or technical school, [or] attaining 23 years of age whichever first occurs."
Lastly, Paragraphs 12.1 and 12.2 address the parties' responsibilities for their children's college expenses. Paragraph 12.1 provides: "[t]he Parties agree to pay for any and all of the college room, board, tuition, travel expenses, college preparatory classes, travel to and from school during the selection process, books, supplies, computer hardware and software, laboratory fees and book expenses for the children born of the marriage." Paragraph 12.2 provides:
The Parties agree to pay for . . . costs of the college room, board, tuition and related expenses for the children of the marriage in proportion to their respective earned and unearned income, earning ability, assets and financial status with the Husband paying 62% and the Wife 38% after the deduction of any financial aid, grant and/or scholarship, including work related scholarships which may be obtainable by the children. The children shall be obligated to make every effort to obtain financial aid, scholarships and grants in the financing of his/her college education.
On November 6, 2008, plaintiff filed a motion seeking an order: 1) declaring Michael emancipated, effective September 1, 2008; 2) terminating his obligation to pay his share of Mary's college expenses; and 3) recalculating his child support obligation for Mary and Thomas. Plaintiff supported the motion with his certification stating in part that: 1) Michael, then nineteen years old, completed his first year of college during the 2007-2008 school year; 2) in the fall of 2008, Michael registered for only one online course at Passaic Community College; and 3) during the past summer Michael obtained fulltime employment as a manager of a local pizzeria, earning what plaintiff believed was between $500 to $600 per week. Concerning Mary, plaintiff certified that she was a senior in high school with intentions to enroll in college in September 2009; and because Mary has refused to maintain a relationship with him since the parties' divorce, he should be free of his obligation to contribute toward the cost of her college education.
Defendant not only opposed plaintiff's motion, but also filed a cross-motion pursuant to Paragraph 4.2 of the PSA seeking to compel plaintiff to pay $6,218.60 or 62% of the ice skating expenses defendant had expended for Mary since the divorce. In so doing, defendant filed a certification, stating in part, that as to plaintiff's request for an order declaring Michael emancipated, she had not been aware that Michael had reduced his college credits by registering for a single course; however, upon receiving plaintiff's motion, she stressed to Michael the importance of a college education, whereby Michael registered to take fifteen credits in the January 2009 semester.
As to plaintiff's request to be relieved of his obligation to pay his share of Mary's college expenses, defendant acknowledged that her daughter was having difficulty in accepting the divorce, but that defendant was encouraging Mary to communicate with plaintiff. Nevertheless, defendant argued that Mary's lack of contact with plaintiff was not a reason for plaintiff to be relieved of his obligation to pay his share of Mary's college expenses.
Lastly, in support of her cross-motion seeking to compel plaintiff to pay 62% of Mary's ice skating expenses, defendant certified that Mary has pursued ice skating since she was nine years old. At first, Mary skated competitively, taking ice skating lessons every morning before school. Although plaintiff initially supported Mary's ice skating, he stopped contributing toward her ice skating expenses during the divorce proceedings, ...