On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-001270-94.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 14, 2011
Before Judges Fuentes, J. N. Harris and Koblitz.
Plaintiff Donald R. Brock appeals from the September 16, 2010 post-judgment order requiring him to pay $61,275 of his daughter's college expenses as well as $2500 in counsel fees and denying plaintiff credit for the approximately ten years of child support payments that he made on behalf of his son after the child's emancipation. Because neither party complied with the procedures set forth in their property settlement agreement (PSA) and material issues of fact are contested, we reverse and remand for a plenary hearing.
The parties entered into a PSA, which was incorporated into their final judgment of divorce on June 8, 1995. The PSA included the parties' agreement that plaintiff would pay defendant $88.07 per child per week in support.*fn1 At the time of the divorce, the parties' son was fourteen years old and their daughter was eight years old. Under the PSA section titled "Termination of Obligation," plaintiff's obligation to make payments for the support and maintenance of the Children . . . shall terminate for each Child as each Child is emancipated, which shall be defined as occurring at the happening of any one of the following six events:
(a) Reaching the age of 18 (eighteen) years or completion of four years' academic college education,[*fn2 ] which ever last occurs;
(b) Marriage of the Child, even though that marriage may be void or voidable and despite any annulment of that marriage;
(c) Permanent residence away from the residence of [defendant]: residence at boarding school, camp, or college shall not be deemed to be a residence away from the residence of [defendant], and thus shall not be deemed an emancipation event;
(e) Entry into the Armed Forces of the United States, whether voluntary or involuntary;
(f) Engaging in full time employment upon or after the Child's attainment of 18 (eighteen) years of age, except that (1) the Child's engagement in full-time employment during school vacation and/or summer periods shall not be deemed emancipation.
The PSA also contained the parties' agreement as to financing the college education of their children. In the section titled "College Education of the Children," the agreement states that both parties have an obligation to provide for the college education of their Children, taking into consideration the respective income and assets of the parties at the time each Child attains the appropriate age. The parties agree to consult with a view toward adopting a harmonious policy concerning the college education of the Children. Accordingly, as each Child is prepared to enroll in college, each parent shall have the right to approve in advance an undergraduate college consistent with the family's means and the Child's abilities.
Any dispute in this regard shall be resolved by a Court of competent jurisdiction upon application properly made.
This section of the PSA also requires that the children "apply for any scholarships or financial aid available and, except for medical reasons, complete four continuous years of college education. Failure to complete college within four continuous years, except for medical reasons," entitles either party "to seek a modification of his or her obligation under this paragraph, through a Court of competent jurisdiction"
The PSA section further states that the parties agree that "each Child shall be required to apply to state schools within the State of New Jersey first, and shall only attend out of state schools in the event that both Husband and Wife agree thereto, or in the event that a Child i[s] unable to gain entrance into a college within the State of New Jersey."
The parties' daughter attended St. Thomas Aquinas College in Sparkhill, New York, beginning in September 2005. Defendant claims she attempted to notify plaintiff of their daughter's choice of college by regular and certified mail, return receipt requested, during that same month. The letter is dated September 5, 2005; however, the unclaimed certified letter indicates that delivery was attempted on October 13, 2005. Plaintiff denies having received this letter. The parties concur that no agreement was reached concerning their daughter's choice of college and that plaintiff and his daughter were completely estranged thereafter. Plaintiff claims that he sent gifts to his daughter that were not acknowledged. Plaintiff saw her only once since 2005, at his son's wedding in Costa Rica on April 16, 2010, shortly before the post-judgment application in question was filed.
In May 2010, after five continuous years of study, the parties' daughter graduated from St. Thomas Aquinas College. Plaintiff claims that her attendance at an out-of-state, private college was never discussed and denies having received a written request to contribute to her college expense prior to her graduation. On July 6, 2010, defendant filed a motion to enforce litigant's rights by compelling plaintiff to pay one-half of the daughter's college expenses. Plaintiff filed a cross-motion asking the court to retroactively emancipate the parties' two children, terminate ...