On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FD-04-4781-96.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, C.L. Miniman and LeWinn.
In this post-judgment matrimonial matter, defendant appeals from three orders of the trial court: (1) requiring him to reimburse plaintiff the amount of $16,982.50, representing one-half of the college expenses of the parties' children; (2) denying his motion to vacate that order; and (3) ordering him to pay plaintiff $2,635.42 in counsel fees. We reverse all three orders.
The parties were married in 1982 and have two children born in 1984 and 1986. They were divorced in Pennsylvania in 1987 and incorporated their property settlement agreement (PSA) into that judgment. The pertinent provisions of the PSA are: paragraph 15, which states that defendant's child support obligation "shall continue until each child reaches the age of majority"*fn1 ; and paragraph 17, which provides:
In addition to all provisions and covenants contained herein, and in consideration thereof, [defendant] agrees to provide financial support, equal to the amount of support provided by [plaintiff], to each of the children for the exclusive purpose of providing to them a college education or any post-secondary education related to their preparation for a job or career . . . .
The parties' daughter turned eighteen in 2002, and their son in 2004. Nonetheless, defendant continued to pay child support until May 24, 2007, when both children, then ages twenty-one and twenty-three, were declared emancipated as of that date by a court order entered on June 4, 2007. Although both children attended college prior to emancipation, defendant did not contribute directly to their college expenses.
On or about October 15, 2009, plaintiff filed a motion in Camden County to require defendant to pay one-half of the children's college tuition pursuant to paragraph 17 of the PSA; she submitted documentation that the children's combined tuitions totaled $33,965. Plaintiff certified that defendant "knew the kids were in college. [She] paid the tuition [and] continually asked . . . [d]efendant for his one-half share of the tuition but he always side-stepped sending [her] a check." Plaintiff also sought counsel fees.
Defendant certified in opposition that when their daughter graduated high school, he "mentioned that [he] would stop paying child support for [her]." However, plaintiff "suggested that [he] continue paying the child support and the extra money would go toward [his] share of [the daughter's] college costs. That [is] exactly what [he] did." The "same arrangement took place" when their son turned eighteen. "Rather than terminate [his] child support payments to [plaintiff], [he] continued to pay her support for the next several years as [his] contribution to . . . college costs." Defendant asserted that plaintiff "had never asked [him] for a single dollar towards [the] children's college expenses at any time before or during their attendanceat school. The simple reason . . . is that [he] was funding their college educations by continuing to pay her child support long after [his] obligation ended."
Defendant further certified that plaintiff first asked him to contribute to college expenses "two years after [their daughter] graduated." However, "[b]ecause [he] already contributed to both children's college expenses by overpaying approximately $20,000 in child support, [he] did not agree to pay anything additional for . . . college expenses."*fn2
Plaintiff certified in reply that "[c]ontrary to what [d]efendant sa[id], he and [she] never had any discussions after the two high school graduations of [their] children that his child support . . . would be his contribution to their support and college tuition." She reiterated that defendant's "college tuition obligation . . . is outlined in" paragraph 17 of the PSA, and that she "paid all the tuition . . . ." She further asserted that she did not have to seek reimbursement of college expenses earlier "because the children weren't emancipated until they graduated college and [she has] a divorce [j]udgment that addresses college tuition."
After hearing oral argument, the judge determined that defendant did not make "overpayments on child support because he voluntarily continued to pay child support until such time as th[e] order of emancipation was entered." The judge added that even if defendant's payments were considered as child support, they could "also be considered the ancillary costs of the college education. [The children] were living at home." In response to defendant's contention that under Pennsylvania law his child support would have terminated when each child reached the age of eighteen, the judge noted:
[E]ven if . . . I had applied Pennsylvania law and said, these children have reached the age of majority . . . and the [c]court would have said, [defendant does not] have to pay child support, to use that label, any more, he still would have been responsible for half of the expenses of room and board and ...