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November 30, 2010


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1139-05C.

Per curiam.


Submitted October 19, 2010 - Decided Before Judges Payne and Koblitz.

Defendant Biao Xue appeals the trial court's order of November 6, 2009, directing that the parties' educational fund set up at the time of divorce could be used to pay for their daughter's educational expenses prior to college. After considering defendant's arguments in light of the record and applicable law, we affirm.

The parties were married on June 6, 1995, and had one child, B.X., who was born on March 7, 1996. Their divorce judgment of July 26, 2005, incorporated their signed Marital Settlement Agreement dated May 28, 2005. The parties drew up the agreement themselves. They both waived any spousal support from the other. Paragraph 8 of the agreement states:

The Husband and the Wife both agreed to set aside $90,000 in education funds for [B.X.] . . . It shall be used for [B.X.] exclusively . . . Any use of this money shall be agreed upon by both the Husband and the Wife.

The parties did not agree on the purpose or use of this educational fund. Defendant believed it should be saved for B.X.'s college expenses, while plaintiff wanted to use it for the child's current educational needs such as tutoring and educational summer camp. Plaintiff filed a post-judgment motion seeking, among other relief, the ability to use the fund for their daughter's current educational needs.

The trial court's order on November 6, 2009, states in pertinent part:

Paragraph 8 of the parties' Marital Settlement Agreement is amended as follows: the term "educational funds" shall encompass current and future educational tutors, learning camps, SAT exams and prep course costs, and educationally-related expenses for entrance applications, tuition and fees, housing[,] textbook costs, transportation and food.

Plaintiff relates that her daughter did very poorly in math until plaintiff hired a certified teacher charging $55 per hour to tutor B.X., thereby incurring charges of about $500 per month. In her brief, plaintiff indicates the child's math grade improved from a D to a B since receiving this tutoring.

Plaintiff also indicates that her employer will pay most, if not all, of B.X.'s college tuition, so the educational fund might not be fully utilized for college. Plaintiff works for Rider University, which allows the children of university employees to attend the school free of charge. In addition, if B.X. chooses to attend another college, Rider will pay eighty percent of the current Rider tuition up to the total tuition of that college.

Defendant argues that the parties agreed the fund was to be used only for college. He says they negotiated their agreement in Chinese and forgot to put the English word "college" before "education fund." He is also concerned that Rider may no longer offer tuition for the children of employees by time B.X. goes to college. He thinks plaintiff should pay for their daughter's current educational needs from plaintiff's salary and his child support. Defendant maintains that he pays enhanced child support of $1380 per month to ensure his daughter receives every advantage. Plaintiff maintains that the increased child support was in exchange for the permanent waiver of alimony. Plaintiff also points out that in 2004, one year prior to the divorce, defendant earned approximately $188,000 and plaintiff $66,000, so that the defendant's child support is consistent with the New Jersey Child Support Guidelines (Guidelines).*fn1 Pressler & Verniero, Current N.J. Court Rules, Appendix IX to R. 5:6A (2011). Defendant does not take issue with B.X.'s current need for tutoring, educational camps or other college preparation,*fn2 although he does blame plaintiff for neglecting B.X.'s education.

The trial court explained its decision*fn3 on March 4, 2010, by first relating the dictionary definition of "education," which of course encompasses the tutoring and other expenses delineated by plaintiff. The court then noted that:

[P]reparation for attendance at a college or university is often more important than attendance at the university itself. It is imperative that the student be properly prepared for attendance at the university or college. Preparation may include additional instruction, i.e. tutors, ...

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