July 25, 2011
SCOTT CARIDI, PLAINTIFF-APPELLANT,
MICHELLE COPLAND, F/K/A MICHELLE CARIDI, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-422-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 12, 2011
Before Judges Sapp-Peterson and Ashrafi.
Plaintiff Scott Caridi appeals from a June 8, 2010 order of the Family Part requiring that he pay one half the expenses for his daughters' private high school and college education, and an August 9, 2010 order denying his motion for reconsideration. We reverse and remand for a plenary hearing.
The parties were married in 1990 and divorced in 2003. They have two daughters, born in 1991 and 1996. At the time of divorce, they entered into a comprehensive marital settlement agreement, which designates defendant Michelle Copland (formerly Caridi) as the parent of primary residence and sets a parenting time schedule for plaintiff Scott Caridi. In addition to fixing the amount of child support and defining the circumstances under which the children would be emancipated, the agreement addresses the children's private school tuition through the eighth grade, summer camp expenses, and future college costs. It does not contain any provision for payment of private high school expenses.
As to elementary and middle school, Article IV, paragraph
4.1, of the agreement states in full: The parties acknowledge that their two
children currently attend Holy Family School in Norwood, New Jersey. The parties acknowledge that it is their intention to have both of their children continue to attend Holy Family School through 8th grade. Husband shall be fully responsible for all private school educational expenses payable to Holy Family School in Norwood, New Jersey. In the event a change of schools is necessary for any reason, the parties shall attempt to agree upon the selection of a new school and the payment of school expenses.
Article VIII of the agreement addresses sharing of future college expenses:
8.1 Both parties agree and acknowledge that it is their intention to make all efforts to have the two children born of the marriage afforded the opportunity to attend a college or university in accordance with their desires and capabilities. The parties also acknowledge that the[y] each have an obligation to contribute to the college education expenses of the children. The parties' respective financial contributions toward their children's college education shall be addressed at the time each child is prepared to enroll in college, taking into consideration the parties' respective incomes and abilities to contribute to such college expenses, and after applying for all available financial aid, grants, loans, scholarships, etc.
Paragraph 8.2 of the same article states that the parties shall cooperate in the selection of colleges for their children and shall not unreasonably withhold consent.
Caridi paid the private school expenses of both daughters through the eighth grade directly to Holy Family School. The older daughter attended high school from 2006 through 2010 at Holy Angels Academy, a private school. Copland paid more than half her high school tuition and expenses. Caridi made two direct payments to Holy Angels Academy, $4,800 in August 2006 and $5,000 in July 2007. After the older daughter's second year of high school, Caridi did not make any further payments.
In May 2010, the older daughter was accepted for college at the Fashion Institute of Technology in New York. Copland filed a motion to compel Caridi to pay the balance of one-half her high school tuition, and also to pay two-thirds of her college expenses. Her motion also sought payment by Caridi of one-half the expenses of the younger daughter for private secondary school tuition at Holy Angels Academy, which she was about to enter as a freshman the following fall. Caridi filed opposition to Copland's motion, contending that he had never agreed to pay for private high school expenses, that he was willing to pay a fair share of the older daughter's college expenses, and that his financial circumstances had changed significantly from the time of the marriage and divorce such that he could not afford to pay the sums sought by Copland. He stated he was now unemployed and had very limited income, and he had to support a new family. He also asserted he had paid child support, elementary school costs, and summer camp expenses as required by the marital settlement agreement.
The Family Part decided the motion without a hearing or oral argument.*fn1 By order dated June 8, 2010, the court required that Caridi pay fifty percent of the older daughter's completed expenses at Holy Angels Academy, the same percentage for the younger daughter's anticipated expenses at the same private high school, and also fifty percent of both children's current and future college expenses after exhaustion of financial aid opportunities.
The court stated its reasons for the rulings within the text of the June 8, 2010 order. As to the private high school expenses of the older daughter, the court mistakenly adopted Copland's representation that Caridi had paid fifty percent of those expenses for the first three years. It appears from the limited record provided to us that the two payments from Caridi totaling $9,800 were less than half the tuition and fees for the first two years, and Caridi made no payments in the third year. Nevertheless, relying on the history of past payments, the court said Caridi could not "hide behind the language of the parties' Property Settlement Agreement" to avoid payment for the final year.
As to the younger daughter, the court again referenced Caridi's "history of paying" and found that his case information statement (CIS) "does not set forth any reason why [Caridi] cannot pay his fair share . . . and provide [the younger daughter] with the same education that he has helped to provide" for the older daughter. Regarding college expenses of both daughters, the court recited the previously-quoted provisions of Article VIII of the parties' agreement, and also recited the factors listed in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982), relevant in determining whether a divorced parent has an obligation to pay the expenses of higher education for a child. Without a specific statement of how those factors were being applied in this case, the court concluded that the parents should share equally in college expenses for both children.
Caridi filed a motion for reconsideration, which the court denied by order dated August 9, 2010. Caridi then filed a motion to stay his required payments pending appeal, and Copland filed a cross-motion to enforce the prior orders and require specific sums to be paid immediately. A new judge was assigned to the case because of a change in court assignments unrelated to this case. The new Family Part judge issued an order dated October 14, 2010, denying Caridi's motion for a stay and ordering him to pay a total of $25,209.38 within thirty days. That sum consisted of the following: $6,050 for the older daughter's 2008-09 high school tuition, $6,050 for the older daughter's 2009-10 high school tuition, $6,825 for the younger daughter's 2010-11 high school tuition, $350 for the younger daughter's high school registration, $102.38 for the younger daughter's book expenses, $997.50 for the younger daughter's computer, and $4,834.50 for the older daughter's fall college tuition at Fashion Institute of Technology. The order further required that Caridi make timely payments of similar future educational expenses as they become due.
On further motions, the court ordered that Caridi pay $1,787.50 for Copland's attorney's fees. On Caridi's application to us, we denied a stay of the Family Part's several orders. Subsequently, Caridi's payment obligation increased as the second semester of college began in January 2011. On January 6, 2011, the Family Part entered an order compelling Caridi to make payments as previously ordered, added another $1,625 in attorney's fees, and also ordered Caridi immediately to list his home for sale so that proceeds of its sale could be used to discharge his payment obligations. In addition, the court issued a bench warrant for Caridi's arrest for non-payment. Caridi then paid $16,500 in school expenses and promised to pay an additional $15,831.38 by April 30, 2011. As a result, the court vacated the bench warrant and parts of the prior enforcement order.
On appeal, Caridi argues he has been erroneously compelled to make payments for private secondary school that were not agreed upon in the comprehensive marital settlement agreement, or otherwise required under the law pertaining to the obligations of a parent to support his children. He contends he has lost his sources of income and cannot afford the private educational expenses the Family Part has ordered, and that the court improperly ordered a sharing of college expenses for the younger daughter when she was just beginning high school.
We begin by restating well-established principles. Settlement agreements in matrimonial cases are contracts that should be enforced as long as they are fair and just. Petersen v. Petersen, 85 N.J. 638, 642 (1981); see also Lepis v. Lepis, 83 N.J. 139, 146 (1980) (matrimonial settlement agreements are enforceable "to the extent that they are just and equitable" (quoting Schlemm v. Schlemm, 31 N.J. 557, 581-82 (1960))). Our courts recognize a "'strong public policy favoring stability of arrangements' in matrimonial matters." Konzelman v. Konzelman, 158 N.J. 185, 193 (1999) (quoting Smith v. Smith, 72 N.J. 350, 360 (1977)). "[F]air and definitive arrangements arrived at by mutual consent should not be unnecessarily or lightly disturbed." Id. at 193-94 (quoting Smith, supra, 72 N.J. at 358); see also Dolce v. Dolce, 383 N.J. Super. 11, 20 (App. Div. 2006) ("Settlement agreements . . . are entitled to considerable weight with respect to their validity and enforceability in equity, provided they are fair and just."). As in other contexts involving contracts, a court must enforce a matrimonial agreement as the parties intended, so long as it is not inequitable to do so. See Pacifico v. Pacifico, 190 N.J. 258, 266 (2007).
These principles lead us initially to conclude that the court erred by ordering at this time that Caridi pay one-half the younger daughter's future college expenses. Article VIII quoted previously provides that "[t]he parties' respective financial contributions toward their children's college education shall be addressed at the time each child is prepared to enroll in college, taking into consideration the parties' respective incomes and abilities to contribute." Furthermore, the factors listed in Newburgh, supra, 88 N.J. at 545, must be considered and applied to the parties' circumstances at the time the child is attending or about to attend college. Although the Family Part recited the Newburgh factors in its order of June 8, 2010, it could not apply them to the younger daughter because she was only beginning her freshman year in high school. The court's order that Caridi pay in the future one-half the younger daughter's college expenses was premature. We reverse that order, without prejudice to its renewal if necessary, when the child is ready to enter college.
With respect to private high school tuition at Holy Angels Academy, Caridi contends the parties agreed his obligation would end after the girls' graduation from eighth grade. He argues the absence of any requirement in the marital settlement agreement that he pay private high school expenses is evidence that he has no such obligation, and his two payments in 2006 and 2007 to Holy Angels Academy were strictly voluntary. We do not read the absence of a provision in the agreement for private secondary school tuition as proof that the parties agreed at the time of divorce the obligation could not later be imposed. Without evidence of a contrary intent at the time of the marital settlement agreement, the issue is simply not addressed in the parties' agreement.
On the other hand, the Family Part did not have sufficient evidence in the written submissions on Copland's motion to rule that Caridi must pay for eight years of private high school expenses for two daughters. The court mistakenly relied on the two voluntary payments by Caridi to impose an eight-year obligation. A parent's voluntary payments should not so readily be viewed as a waiver of future objection to similar payments. Voluntary undertaking of a financial obligation for the child's benefit is not an immutable commitment. Were it otherwise, divorced parents would have strong incentive not to make voluntary payments beyond what they are required to pay by court order or explicit agreement.
The financial circumstances of parents may change, allowing voluntary contributions one year but placing constraints on the parent's ability to provide the same support and assistance in another year. A parent who no longer has the financial wherewithal to pay for private secondary education is not depriving his child of a right to private schooling; he is managing his financial circumstances according to current needs and abilities. Moreover, attendance of one child at a private school does not create an entitlement in the same for another child.
Unlike college, a high school education is available without payment of tuition and related expenses. Caridi contends that a good public high school has been available in their community that would avoid the need for the expenses of private high school tuition. We make no determination here regarding what school Copland and Caridi jointly or otherwise determine their daughters should attend. We agree with Caridi's argument, however, that the costs of private secondary school are seldom a necessity in the same way as other expenses of the children. Rather, a private high school education is a choice parents have a right to make, and the obligation of each parent to contribute to costs of that choice should be determined equitably through a careful assessment of factors like those listed in Newburgh.
Copland argues that Caridi is not truthful in claiming he lacks the financial resources to pay for the younger girl's private school tuition. She alleged in her certification that Caridi enjoys a luxurious lifestyle in his new marriage and unfortunately has lost interest in providing for his daughters as he did previously. Because no evidentiary record was developed of the parties' financial circumstances, we cannot determine whether Caridi can afford to pay private secondary school tuition. His current handwritten CIS is too cryptic, and Copland's CIS also contains information that must be better explained. Through a hearing, the Family Part must make findings of fact regarding the parties' relative ability to pay the school expenses requested by Copland and determine whether Caridi is unreasonably withholding consent to pay a share of the girls' high school expenses. The court can also order appropriate discovery in that regard, if requested.
Next, with respect to the requirement that Caridi pay one half the older daughter's college expenses, the court's ruling was essentially appropriate. The parties' expressed in Article VIII of the marital settlement agreement their future intentions in providing for college expenses. Also, the motion record established the child's abilities and choice of college. There was evidence from which the court could determine many of the listed Newburgh factors without a full evidentiary hearing.
Caridi does not dispute that his daughter should attend the Fashion Institute of Technology or that the costs are reasonable. Were payment for the older daughter's college expenses the only financial obligation placed upon Caridi, we suspect there would have been no appeal, and perhaps no need for the Family Part's intervention in the first instance. However, because an evidentiary hearing is necessary to determine the parties' ability and obligation to pay for private secondary school, the parties may also request that the court reconsider whether the fifty-fifty split of the older daughter's college expenses is consonant with its fact findings.
Finally, because we must reverse the court's primary order of June 8, 2010, and remand for fact finding by means of a plenary hearing, the subsequent orders imposing additional money penalties and obligations upon Caridi may also be reconsidered after resolving the primary dispute concerning educational expenses.
Reversed and remanded for an evidentiary hearing. We do not retain jurisdiction.