January 13, 2011
DENNIS M. O'DELL, PLAINTIFF-APPELLANT,
GERALDINE L. O'DELL, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2478-98.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 3, 2011
Before Judges Lisa, Reisner and Alvarez.
Plaintiff Dennis M. O'Dell appeals from a series of Family Part orders dated June 17, 2009, August 26, 2009, and December 17, 2009. In relevant part, the orders set plaintiff's child support obligation at $220 a week and ordered him to pay arrears to his former wife, defendant Geraldine L. O'Dell; required him to pay $11,000 toward their son's college tuition; denied modification of child support based on changed financial circumstances; and denied an application by plaintiff's current wife to be admitted pro hac vice as his attorney in the Family Part action. We affirm the order denying the pro hac vice application. We remand to the trial court for further proceedings on the issues of child support and college tuition.
These are the most pertinent facts. The parties were married in 1984. They have one son, who was born in 1991. When the parties were divorced in 1998, they signed a property settlement agreement (PSA) providing for joint legal custody of their son, whom they agreed would reside with defendant.
The "Child Support" section of the PSA (Article IV) began by stating that "[t]he parties' respective obligations as to the support and maintenance of the child until the child is emancipated, shall be as follows." Paragraph one provided that plaintiff would pay $220 per week in child support "until the child is eighteen (18) or has graduated from High School, which ever shall occur last, irrespective of college attendance."*fn1 The child care section did not define what level of child support would be due after the child turned eighteen or graduated from high school.
Article V of the PSA addressed college expenses. The parties agreed that "each of them shall contribute based on their ability to pay at the time to the child's . . . college expenses." They further agreed to meet and discuss college plans with the child when he was a junior in high school. They also agreed that they would set up "a trust account" for the child's education, "into which each parent will contribute up to $1,000 per year . . . based on the ability to pay" (emphasis added). In Article VI, the parties agreed that the child would be deemed emancipated at age eighteen or upon graduation from high school, unless he was "attending full-time college." The parties each waived their right to alimony and agreed to each maintain $200,000 worth of life insurance for the child's benefit.
For several years after the divorce, the parties engaged in repeated and acrimonious post-judgment motion practice, mainly concerning visitation and other issues relating to their son. During this period, plaintiff re-married, moved to Pennsylvania and changed jobs, albeit remaining in the same field of employment.
In May 2009, defendant filed an application to set child support arrears and require plaintiff to pay support through Probation. Plaintiff opposed the application, contending that he was current in his past obligations, and that under the PSA his obligation to pay child support terminated when the son turned eighteen. On June 17, 2009, the Family Part judge granted defendant's application.
On that same date, plaintiff filed a pro se motion to dismiss defendant's claim for support arrearages. The motion asserted that plaintiff had fulfilled his child support obligations to date, in part by directing that his Social Security benefits be paid to his son. He also contended that the son had "reached the age of emancipation," and that his child support obligations had ended under the terms of the PSA.
Defendant filed a cross-motion opposing plaintiff's "application to emancipate the [c]hild" and seeking, among other things, an order directing plaintiff to pay $11,000 toward the son's college tuition. According to defendant's certification, the son was not emancipated; rather, he graduated high school in June 2009 and was due to start college in September 2009. Defendant also contended that because the PSA provided for each party to deposit $1000 into a college trust fund every year since 1999, plaintiff was automatically required to pay $11,000 toward the son's current tuition. She represented that she intended to file a future application "to adjudicate financial responsibility for the balance of [the son's college] expenses." In response, plaintiff denied that he was seeking to have the son declared emancipated; rather, he sought to enforce the PSA which he contended terminated his child support obligation when the son turned eighteen. Plaintiff further contended that he had retired and had limited financial resources, while defendant was affluent.
In addressing the motion and cross-motion on August 26, 2009, the judge considered that a different Family Part judge had entered an order in June 2009, setting child support at $220, and defendant had not appealed from that order. The judge also reasoned that, even if plaintiff's current motion were deemed an application for reconsideration of the June order, an agreement to waive child support would be void as against public policy. He acknowledged that if plaintiff was paying for a portion of the son's college expenses, a reduction in child support might be appropriate to avoid duplication. However, he noted that plaintiff had not filed an application seeking to reduce child support on that basis, nor had plaintiff provided the financial documentation necessary for an application to reduce child support based on changed financial circumstances.
Plaintiff, now represented by counsel, filed a motion for reconsideration of the court's order requiring him to continue paying child support. He argued that the parties negotiated the PSA with an eye to his likely declining earning potential and defendant's likely increasing earnings, and thus they agreed that by the time the child was eighteen defendant should take on the full expense of child support. He also sought reconsideration of his child support obligation based on an alleged change in his financial circumstances. See Lepis v. Lepis, 83 N.J. 139, 149 (1980). Plaintiff further argued that the son's support needs were "very different than they were eleven years ago when he was seven years old, thereby supporting the need for a review of how the child support obligation should be . . . allocated." He also contended that the son did not consult him before choosing to attend an expensive private college. In her opposition, defendant contended that plaintiff was consulted about the choice of college, that he was hiding income, that his new wife was affluent and that defendant, by contrast, was barely scraping by.
The reconsideration motion was heard on December 17, 2009. At the motion hearing, plaintiff's counsel indicated that plaintiff did not object to paying $11,000 toward the son's college expenses, provided that he was not also required to pay child support. He contended that plaintiff could not afford to pay both.
In deciding the motion, the court construed the PSA as requiring "both parties to set aside money [at a] minimum [amount] of $1,000 per year." He viewed the $11,000 payment as a past obligation toward the son's college expenses that began in September 2009, although he recognized that future college expenses might constitute a change in circumstances justifying an adjustment of child support obligations.
The judge also found that although plaintiff claimed to have experienced a significant permanent reduction in his income, plaintiff failed to provide proof supporting that contention. Plaintiff instead submitted "a tax return that is not the actual tax return submitted to the IRS nor is it signed by either party. It is . . . handwritten in parts with respect to [the] actual amount of wages. . . . [O]nly his name appears on the tax return, but it's indicated it's a joint tax return." Nor had plaintiff submitted a copy of the original case information statement (CIS) dating from "the time the original judgment was entered" as required by R. 5:5-4(a), or even a copy of his tax returns dating from that time period. Therefore, the judge denied the Lepis motion without prejudice to plaintiff's right to file a new motion with proper financial documentation, an application the judge anticipated would be filed promptly.
The judge also denied a pro hac vice motion filed by plaintiff's wife, an attorney who practiced public utility law with a large Pennsylvania law firm. The judge reasoned that the wife would inevitably need to be a witness in the ongoing dispute over plaintiff's income, employment and ability to pay support and college expenses.
On this appeal, plaintiff contends that the trial judge misconstrued the PSA in requiring him to pay $11,000 toward the son's college expenses, without considering his ability to pay that amount and without considering the other factors set forth in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982). He also argues that the trial court should have enforced what he contends was an agreement in the PSA to "transfer" the entire child support obligation to defendant once the son turned eighteen. In the alternative, he argues that because the son was about to attend college, and the PSA did not set forth an agreement on the amount of child support once the son turned eighteen, the trial court should have recalculated the support obligations of each party based on the son's needs and the parties' respective financial resources. Finally, plaintiff argues that the trial court erred in denying his wife's application for admission pro hac vice.
Addressing the college expenses first, we agree with plaintiff that the judge misconstrued the PSA and failed to consider the Newburgh factors. While the PSA required each party to deposit "up to" $1000 a year in an education trust for the son, the PSA did not require that whatever money was in the trust account simply be turned over to the son when he started college. Instead, the PSA specifically provided that the parties would contribute to the son's college expenses according to their respective financial abilities.
Further, the PSA required that the son's choice of college be made after consultation with both parents. Plaintiff claims he was not consulted. Moreover, although both parents claim to be in straitened financial circumstances, the son chose to attend an expensive private college, raising an interesting issue as to how the college choice was made.
In determining the extent to which parents must contribute to a child's college education, the Family Part must consider the twelve factors set forth in Newburgh:
In evaluating the claim for contribution toward the cost of higher education, courts should consider all relevant factors, including (1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; (2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education; (3) the amount of the contribution sought by the child for the cost of higher education; (4) the ability of the parent to pay that cost; (5) the relationship of the requested contribution to the kind of school or course of study sought by the child; (6) the financial resources of both parents; (7) the commitment to and aptitude of the child for the requested education; (8) the financial resources of the child, including assets owned individually or held in custodianship or trust; (9) the ability of the child to earn income during the school year or on vacation; (10) the availability of financial aid in the form of college grants and loans; (11) the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and (12) the relationship of the education requested to any prior training and to the overall long-range goals of the child. [Newburgh, supra, 88 N.J. at 545 (emphasis added).]
These factors were reflected in later legislation concerning the parents' child support obligations. N.J.S.A. 2A:34-23(a); see Kiken v. Kiken, 149 N.J. 441, 449-50 (1997).
While the Family Part has "substantial discretion" in determining the parents' obligation to pay a child's college expenses, if the court fails to consider and apply the Newburgh factors "we are compelled to reverse and remand for further proceedings." Gotlib v. Gotlib, 399 N.J. Super. 295, 308-09 (App. Div. 2008). As in this case, in Gotlib the trial court failed to apply the Newburgh factors and instead ordered each parent to pay half the college expenses, although the parties had not agreed to that arrangement:
The JOD is silent as to how the parties would divide higher education expenses; the provision merely stated that "[b]oth parties shall contribute to the college costs of the children in accordance with appropriate legal standards." In arriving at his decision, the motion judge did not address the Newburgh and statutory factors reflected in N.J.S.A. 2A:34-23(a). The court simply appears to have divided the expenses equally. This approach is not sustainable. [Id. at 310.]
The trial judge's failure to consider or apply the Newburgh factors here mandates that we remand for further proceedings to determine the parties' respective obligations to pay the son's college expenses. Since it is obvious that the dispute over those expenses will be ongoing unless resolved, the court should address the parties' obligations for the son's first year of college and for succeeding years, applying the Newburgh factors.
In making that determination, the court must consider the income and other financial resources of both parties. Newburgh, supra, 88 N.J. at 545; Enrico v. Goldsmith, 237 N.J. Super. 572, 576 (App. Div. 1990). In addition, while a party's current spouse is not obligated to pay college expenses of that parties' child with a former spouse, "a current spouse's income may be relevant in determining a parent's ability to contribute to college expenses." Hudson v. Hudson, 315 N.J. Super. 577, 582 (App. Div. 1998).
A court cannot consider issues such as college contribution in a vacuum and disregard substantial economic benefits and financial resources inuring to the benefit of a parent as a result of a remarriage.
But any analysis must remain focused on the underlying premise that a current spouse's contribution to the household does not create an obligation on such spouse to share in his or her spouse's parental responsibility for college expenses. The limit of a parent's college contribution should not exceed that parent's income whether earned, unearned or imputed. [Id. at 584.]
Moreover, the consideration of college expenses and child support may be intertwined:
Child support and contribution to college expenses are two discrete yet related obligations imposed on parents. See, e.g., Beck v. Beck, 239 N.J. Super. 183, 190 (App. Div. 1990) (suggesting that a court must consider whether the payment of substantial tuition should result in the reduction of child support (unallocated alimony)). The relationship between the two is not fixed but depends on the facts of each case. [Ibid.]
That brings us to plaintiff's arguments concerning his child support obligation. We agree with the trial judge that the parties could not legally waive the son's right to child support from one parent. See, e.g., Patetta v. Patetta, 358 N.J. Super. 90, 94 (App Div. 2003). However, it is not at all clear that the PSA should be interpreted that way.
The PSA does not specifically state that once the child turns eighteen, plaintiff has no further support obligation. Rather, it defines the amount he owes until the child turns eighteen, and leaves the amount he owes thereafter undefined. Further, absent an agreement on the support amount, once the child turned eighteen and began attending college the court would need to revisit the child support issue, because the college and support obligations are intertwined and may involve overlapping expenses. See Hudson, supra, 315 N.J. Super. at 584-85.
Therefore, we also remand the child support issue to the trial court for reconsideration together with the issue of the parties' obligation to contribute to the college expenses. While we do not vacate the order requiring plaintiff to pay $220 in support on an interim basis, that shall be deemed interim and subject to refund or offset depending on the court's decision on remand.
On remand, each party must file a CIS and provide legally competent evidence of current income. That evidence is relevant to both the issues of child support and contribution to college expenses. See Gulya v. Gulya, 251 N.J. Super. 250, 253-54 (App. Div. 1991). Further, subject to any protective order the court may find appropriate, plaintiff must submit evidence of his wife's income, as it is relevant to the issues on remand. See Hudson, supra, 315 N.J. Super. at 582. Both parties should be entitled to discovery, subject to the court's supervision.
If on remand there are disputed issues of material fact as to any issues, the trial court must hold a plenary hearing on those issues. See Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.), certif. denied, 142 N.J. 455 (1995). For example, on the record as it now stands, there appear to be material disputes of fact as to the parties' incomes and as to whether plaintiff was consulted about the son's choice of college. While the parties may be able to resolve their disputes, thereby avoiding additional litigation costs they both claim to be unable to afford, it thus far appears likely that they otherwise will be put to that expense.
Finally, we find no abuse of discretion in the trial judge's decision denying the application by plaintiff's wife for admission pro hac vice for the purpose of representing plaintiff in this litigation. It appears highly likely that the wife will need to be a witness in this case, on the issues of her income and her husband's employment and income. See RPC 3.7(a); State v. Dayton, 292 N.J. Super. 76, 84 (App. Div. 1996). Further, given the longstanding acrimony between the parties, as reflected in the tenor of this litigation, and the difficulty even the best attorney may have in providing objective legal advice to the attorney's spouse engaged in such litigation, it is questionable whether admission pro hac vice would serve the interests of justice in this case.*fn2
Affirmed in part, remanded in part.