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Steven Brandes v. Helene L. Rigney

December 16, 2010

STEVEN BRANDES, PLAINTIFF-RESPONDENT,
v.
HELENE L. RIGNEY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FM-12-2495-97.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 6, 2010

Before Judges Lisa, Reisner and Sabatino.

Defendant Helene L. Rigney appeals from an October 9, 2009 order declaring the parties' son emancipated. We affirm.

I

This is the second appeal concerning the parties' dispute over financial support for the second of their three children ("the son" or "the younger son"). See Brandes v. Rigney, No. A-2427-07 (App. Div. Feb. 27, 2009). Rigney and plaintiff Steven Brandes were divorced in 1997. Their property settlement agreement (PSA) provided for child support, which by the specific terms of the agreement would terminate on each child's emancipation. A separate provision of the PSA governed the parties' obligation to pay for their children's college tuition. That section contained no provision concerning emancipation.

The parties' oldest son graduated from college and law school and is now emancipated. As set forth in the trial court's October 9, 2009 opinion, the younger son's college career has been extended. He has attended a variety of colleges without obtaining a degree. The parties' youngest child, a daughter, was also in college at the time of the hearing.

Against that brief backdrop, we consider what issues are properly before us on this appeal. Isolating those issues requires that we review the prior orders and the prior appeal in this case, as well as the plenary hearing and order from which this appeal arose.

In the September 20, 2007 and November 2, 2007 orders on the prior appeal, the trial judge declared the younger son to be emancipated and required him to pay for his college tuition with loans. However, the orders also provided that if the son finished DeVry University in three years, he could ask Brandes to reimburse him for Brandes' share of the college loans, pursuant to the PSA. In a December 21, 2007 statement of reasons, the trial judge clarified that he was trying to motivate the son to finish college by declaring him emancipated, but with the important caveat that if he finished in three years, the court would then decide how much of his tuition each of his parents, and the son himself, should be responsible for.

Rigney only appealed from the provision that emancipated the son, not from the requirement that Brandes reimburse him for a portion of the tuition or from the requirement that the son pay for his tuition with loans. The opinion deciding Rigney's first appeal noted that she agreed that the son should be required to pay for his college tuition with loans in order to motivate him to finish his education and obtain a degree. Brandes did not appeal from the tuition reimbursement provision either. Neither party appealed from the provision giving Rigney $225 per week in child support; there is no dispute that the $225 a week was only for the parties' daughter.

On Rigney's first appeal, another panel of this court remanded the case to the trial judge for a new determination as to whether the son was emancipated. The panel reasoned that the judge had mistakenly applied the Newburgh*fn1 factors applicable to a parent's college tuition obligations, rather than the separate criteria applicable to the emancipation determination. However, because neither party had appealed from the portion of the trial court's order requiring possible reimbursement of the son's college loans, we conclude that the tuition reimbursement provision was not properly before that panel and was not the subject of the remand.

On remand, the trial judge held a plenary hearing. On the first day of the hearing, on May 11, 2009, the son testified to the financial support provided by his mother and her new husband. This included being covered by their health insurance policy, assistance with his car insurance and cell phone bill, and occasional assistance with his rent of $500 per month. The son, who was then almost twenty-four years old, testified that he worked as an intern at Verizon. His W-2 forms showed that he had earned over $22,600 in 2008. He was attending DeVry University and expected to graduate with an engineering-related degree after one or two more semesters.

Brandes testified that he had been laid off from his job and could not afford to pay tuition and child support for both the younger son and the parties' daughter. He also testified that the son would be able to obtain additional financial support if he were ...


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