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Simrell v. Simrell

November 17, 2010

KEITH SIMRELL, PLAINTIFF-APPELLANT,
v.
MARY SIMRELL, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-820-97B.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 29, 2010

Before Judges Kestin and Coburn.

Plaintiff, Keith Simrell (the father), appeals from provisions of an order entered on October 1, 2009, allocating the college expenses of the parties' son and awarding a reimbursement of $5,804.65 to defendant, Mary Simrell (the mother).

In his brief on appeal--to which no answering brief has been filed--the father propounds five arguments: 1) that "the order . . . ignores and contradicts the previous consent order of April 7, 2006, without explanation or merit"; 2) that he "was ordered to pay expenses not incurred by the [mother]"; 3) that "the calculation used by the court to determine the percentage to share expenses based on financial ability does not consider the existing support order effecting [sic] their incomes without explanation"; 4) that "the court did not enforce it's [sic] own order directing both parties to submit a current [Case Information Statement] in order to determine the income available to share college expenses"; and 5) that "the Child Support Guideline Worksheet was prepared by the Court using incomplete and inaccurate financial information, and deviations from the specific guidelines were made without notation."

The parties were divorced in 1997. The judgment of divorce incorporating their 1995 property settlement agreement was thereafter modified by consent orders from time to time. Residential custody of the two children was with the mother throughout. The last consent order, entered on April 7, 2006, adjusted child-support-based claims between the parties existing at the time, and contained the following provisions in a clause bearing on the allocation of both children's college expenses:

If the amount of total support required from the non-custodial parent for tuition, books and related expenses is more than $1,000 per semester, it must be agreed to and approved in writing before the application for such costs is processed. This shall not preclude the other party applying to the Court to require a greater expenditure than $1,000 per semester.

At the time the last consent order was entered, the parties' son was a commuting student at a community college. When the instant matter was before the court, the son had become a residential student at a State college, declining the father's offer to reside with him nearby. Under the parties' agreement, the son was to pay fifty percent of his college costs and the parties were to divide the remaining fifty percent subject to the $1,000 negotiated limit on the father's contribution (with the father paying two-thirds for the first two academic years and half thereafter). The college payment issues in the instant matter aside, the father paid what was expected of him under the parties' agreement as modified, including support for the younger child, the parties' daughter.

The instant matter came before the court because of increased costs attributable to the son's change in educational circumstances. It was raised on the mother's application for a modification of the $1,000 limit to require the father, instead, to pay half of the parents' share of those increased educational costs.

By the time of the plenary hearing, the son had recently graduated from college. After considering the parties' written submissions and their testimony, Judge Jacobson determined that the son had been emancipated as of his graduation date, and she permitted the parties to make additional submissions regarding their finances before she decided the issues.

The order, entered on October 1, 2009, provided for a reduced child support obligation retroactive to the date of the son's emancipation, and referred the account to the Burlington County Probation Department for recalculation and development of a payment plan. The order also established the $5,804.65 college expense reimbursement due from the father and set out the parameters of a payment plan.

In her oral decision on May 29, 2009, at the conclusion of the plenary hearing, Judge Jacobson had found that the decision of the son to pursue a bachelor's degree program in a four-year college following completion of his two-year community college associate's degree program was reasonable. She also found, given the family history and the son's undertaking to pay fifty percent of his college costs himself, that the decision to reside at college rather than live with his father was reasonable, as well.

In a statement of reasons appended to the order of October 1, 2009, Judge Jacobson amplified her findings and conclusions. She made specific findings regarding the amount of college expenses, the shares of the costs attributable to the parties and their son, the amount due from the father, and the mode of payment; and she directed the probation department to ...


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