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Paula Sweet F/K/A Ludwig v. Kevin Ludwig

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 20, 2011

PAULA SWEET F/K/A LUDWIG, PLAINTIFF-APPELLANT,
v.
KEVIN LUDWIG, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FM-06-393-00.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 24, 2011

Before Judges Simonelli and Espinosa.

Plaintiff appeals from a post-judgment order that required defendant, her former husband, to pay for eighty-five percent of their son's direct college expenses, $150 per week while he is enrolled in college and $200 per week when he is on summer break. We affirm.

Plaintiff and defendant were married in September 1990 and had one child, a son. They were divorced in June 2000, and the comprehensive property settlement agreement (PSA) they agreed upon was incorporated into their judgment of divorce.

The PSA required defendant to pay child support of $380 per week and alimony of $3,000 per month. As for their son's college and graduate school education, the PSA stated that "the parties, to the extent that each shall be financially able, shall pay for or contribute to such advanced education." The parties agreed to consult regarding this issue and, if unable to agree, to have the matter resolved by a court of competent jurisdiction.

The parties were unable to resolve the college contribution issue. In April 2010, plaintiff filed a motion seeking contribution to college expenses and a modification of child support. Defendant filed a cross-motion, asking the court to deny plaintiff's motion, terminate child support, and direct their son to authorize the release of certain information. The parties exchanged current case information statements.

The court provided the parties with a tentative decision on these issues prior to oral argument. Plaintiff did not disagree with the 85/15% split of college expenses contained in the trial court's tentative decision. However, she argued that the breakdown should apply to all college costs, and that their son, who was already contributing $13,100 to his college costs based upon a scholarship and grant, should be relieved of any additional obligation to contribute to his expenses by obtaining loans. The trial court agreed with defendant that their son should be required to obtain all loans, grants and scholarships and entered an order that provided, in pertinent part:

DEFENDANT shall pay 85% of the direct costs for the college education of the child, [], less any scholarships, loans and grants received by him. PLAINTIFF shall pay the remainder, or 15% of the same . . . . [The child] shall apply for all available financial aid, including grants, loans and scholarships to offset the cost of the college expenses to both PLAINTIFF and DEFENDANT.

As for child support, plaintiff asked the court to set child support at $150 per week while their son was in college and $600 per week when he was on summer break. Defendant countered that he wanted to pay $100 per week. The trial court agreed to modify child support, requiring defendant to pay $150 per week while their son was in college and $200 per week while he was on summer break.

Plaintiff presents the following issues for our consideration in this appeal:

POINT I

THE TRIAL COURT ERRED IN DETERMINING THE AMOUNT OF MONEY THE UNEMANCIPATED CHILD MUST CONTRIBUTE TO HIS COLLEGE EDUCATION

POINT II

THE TRIAL COURT'S MODIFICATION OF CHILD SUPPORT WAS ERRONEOUS IN THAT DEFENDANT HAS THE ABILITY TO PAY AN ADDITIONAL AMOUNT OF CHILD SUPPORT

After carefully reviewing the record and briefs, we are satisfied that neither of these arguments has merit.

"The trial court has substantial discretion in making a child support award. If consistent with the law, such an award will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice." Foust v. Glaser, 340 N.J. Super. 312, 315 (App. Div. 2001) (internal citations and quotations omitted); see also Tannen v. Tannen, 416 N.J. Super. 248, 278 (App. Div. 2010). "'[F]indings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence . . .' in the record." Foust, supra, 340 N.J. Super. at 315-16 (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). Because contribution to college expenses is a form of child support, the same principles apply to our review of both the court's decision on college expenses and the modification of child support.

In Point I, plaintiff argues that their son already contributes one-third of the cost of his education by virtue of his scholarship and grant and that it was an abuse of discretion for the trial court to burden him with any additional financial obligation.

In her argument, plaintiff sets forth her own reasons for disagreeing with the trial court's decision, i.e., that the burden placed on the unemancipated child is greater than that imposed upon the parents who have the financial ability to pay more toward his education. While plaintiff's proffered resolution may be entirely reasonable, her argument falls short of showing the trial court's conclusion to be "manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice." See Tannen, supra, 416 N.J. Super. at 278.

Plaintiff also argues that the trial court erred in its modification of child support because defendant has the ability to pay more than that ordered by the court. As we have noted, plaintiff sought child support of $150 per week while their son was enrolled in college and $600 per week while he was on summer break. The court granted the $150 per week while the child was in college, as plaintiff requested, but awarded $200 per week for the periods when he was on summer break. Again, while plaintiff has succinctly explained her disagreement with the court's decision, she has not shown it to be so "manifestly unreasonable" as to constitute an abuse of discretion.

Affirmed.

20110920

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