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Robbyn Scott, F/K/A Tully v. Michael Tully

March 31, 2011


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-496-94.

Per curiam.


Submitted February 22, 2011

Before Judges Kestin and Newman.

Plaintiff Robbyn Scott, f/k/a Tully, appeals from an order denying her motion for reconsideration of a prior order of the Family Part. Plaintiff contends that the trial judge should have ordered discovery and a plenary hearing in connection with her application to require defendant, Michael Tully, her former husband, to contribute to the college expenses, both past and future, on behalf of their son, S.T. She had also asked the court to determine a percentage contribution for the college expenses of their twins, a boy and a girl, who were likely to attend college in the near future. Plaintiff had also sought discovery related to defendant's income in response to his request for recalculation of his child support obligation, and as it may bear upon the college contribution issue.

We are satisfied that the issue of the contributions to the oldest son's college expenses should have been the subject of a hearing and reverse on that issue. We affirm on the other grounds previously mentioned.

Plaintiff and defendant have three children, the oldest son born in April, 1988, and the twins born in November, 1992. Plaintiff receives weekly child support for all three children.

Plaintiff indicated that the oldest son is interested in a law enforcement career as a State Trooper in the state of Pennsylvania. He attended Atlantic Cape Community College following graduation from high school. Two weeks before the son matriculated, plaintiff requested that defendant contribute to the tuition, which he refused to do. Plaintiff paid $8,621 in tuition with no contribution from defendant.

In the fall of 2008, the oldest son enrolled at Temple University. Prior to his actual enrollment, he inquired of his father whether he could reside with his father so that he could take advantage of a tuition reduction as an in-state student. According to plaintiff, tuition and other charges were $12,336 in the fall of 2008, and $11,719.37 in the spring of 2009. In the fall of 2009, the tuition was $12,114. Plaintiff signed for student loans in the amount of $27,871.73, with a minimum monthly payment required in the amount of $93.17. Plaintiff's son's rent is $555 per month, with a one-time fee of $225 for a security deposit and other expenses in connection with the rental of the apartment.

Plaintiff had requested that she be reimbursed in a proper percentage for the tuition she paid to the community college, existing student loans, and for any future loans necessary to complete her son's education.

Defendant had responded, by way of his certification, that he was not a party to "any discussion about college attendance or selection until" a decision had already been made and his son "was already registered to attend." Defendant acknowledged that he did have a conversation with plaintiff when she called two weeks before their son was to begin classes at the community college and requested that defendant contribute to the bill. He declined to do so, noting that he had not been involved in any discussion before the decision was made, and that there was no provision when the judgment of divorce was entered requiring any contribution toward college education.

Defendant certified that he had no reasonable expectation that he would be asked to contribute to the children's college costs and, as a result, he did not make any financial arrangements for that purpose. He also acknowledged that his son did ask about living with him to qualify as an in-state resident when he decided to attend Temple University; however, his son ultimately decided to live on campus, and then secured an off-campus apartment. Defendant claims he had no involvement in his son's choice of living arrangements. Defendant acknowledges that mail from his son's school comes to his address in Pennsylvania and that he had received a report of his son's grades for the 2008 fall semester. He is not aware of any financial aid applications or whether his son has sought or received grants, scholarships, or loans.

Defendant has, however, provided an incentive program for his son through a grade bonus system at a maximum level for an A-plus grade, under which his son would receive fifty points times the factor of nine for an award of $450. This grade bonus system descends to where his son would receive only $2 for a C-minus grade.

In denying any college tuition contribution, the trial court enumerated the twelve factors to be considered under Newburgh v. Arrigo, 88 N.J. 529, 545 (1982). The court did not analyze the various factors under Newburgh, but considered that "a non-custodial parent may not have to pay their share of college expenses if there was a breakdown in the parent-child relationship and the non-custodial parent was not consulted as to what college the child wants to attend," pursuant to Gac v. Gac, 186 N.J. 535 (2006). Here, the court pointed out that the older son had already begun school and that "[i]t appears from the assertions of both parties that [D]efendant ...

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