October 26, 2011
MAHNAZ FARZAN, PLAINTIFF-RESPONDENT,
REZA FARZAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-676-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 12, 2011 -
Before Judges Payne, Reisner and Hayden.
Defendant Reza Farzan appeals from an October 6, 2010 order of the Family Part.
We begin by briefly describing the background of this dispute. The parties were married in 1987 and divorced in 2009.
They have a son who was born in 1989 and a daughter born in 1994. When the parties divorced, they entered into a property settlement agreement (PSA) that was incorporated into the final divorce judgment dated June 25, 2009. In the PSA, they only provided for child support for their daughter, because their son was then twenty years old and attending college.*fn1 The son was not living with either parent at the time of the divorce, and he still does not live with either of them.
In the PSA, the parties agreed that they would both contribute to their children's college expenses to the extent they were financially able to do so, under the principles set forth in Newburgh v. Arrigo, 88 N.J. 529 (1982), "or the law in effect at that time." The PSA provided that the parties' contributions to college expenses would be limited to "that amount not covered by grants, loans, scholarships, work study programs or other available financial aid and only after considering the child's ability to contribute to his/her own college education."
Child support for the daughter was set at $9880 a year. Defendant's alimony obligation to plaintiff was set at $38,000 a year, but that amount was temporarily reduced while defendant was unemployed. There is no dispute that he is currently employed and earns $2200 per week.
Following the divorce, defendant filed a series of post-judgment motions, seeking to require plaintiff to contribute to the son's support as well as other relief. The court denied defendant's first motion on March 26, 2010, and denied his second motion on June 18, 2010. In the order denying the second motion, the judge warned defendant that if he persisted in filing repetitive motions, unsupported by evidence, the court might require him to pay plaintiff's counsel fees for having to defend herself against those motions.
Nonetheless, defendant sought some of the same relief in the motion that gave rise to this appeal. In addition to seeking plaintiff's contribution to the son's college tuition, defendant asked the court to: (1) order plaintiff to provide proof that she was sick on June 18, 2010, the return date of the prior motion, at which she was represented by counsel; (2) order plaintiff to remove the son's name from any credit cards held in plaintiff's name; (3) order plaintiff not to add their daughter's name to her credit cards; (4) order plaintiff to upgrade their children's cell phones; (5) order plaintiff to provide proof that she actually paid for their daughter's camps, lessons, and orthodontics; (6) order plaintiff to produce copies of her 2009 federal and state income tax returns; (7) require plaintiff to pay the son $215.00 per week for certain living expenses since January 21, 2010; (8) issue a subpoena directed to plaintiff's tenant to establish the amount of the rent; and (9) require plaintiff to pay defendant one day's compensation. In a statement of reasons accompanying her October 6, 2010
order, and in her oral opinion, Judge Thornton explained that she denied defendant's motion because he once again failed to support his allegations with evidence. He did not produce legally competent proof of the son's college expenses, proof that the son needed financial support from his parents, or the amount of that alleged financial need. The judge found that defendant also failed to provide any evidentiary or legal basis for any of his other requests for relief. The judge ordered defendant to pay plaintiff $1600 in counsel fees because defendant had filed frivolous, repetitive motions.*fn2
In considering defendant's appeal, we have independently reviewed the parties' briefs, and the record from the trial court proceedings.*fn3 Defendant's statement of facts is largely unsupported by citations to the record. See R. 2:6-2(a)(4) (the statement of facts in an appellate brief must contain citations to the appendix and transcripts). Further, defendant is challenging the June 18, 2010 order, which was not listed on his notice of appeal and as to which his notice of appeal would be untimely.
The June order was a final order of the trial court. Defendant waived his right to appeal that order when he failed to file a notice of appeal within the forty-five day time limit set by Rule 2:4-1(a). Defendant's arguments as to why the June 18, 2010 order was not final are completely without merit and do not warrant further discussion here. See R. 2:11-3(e)(1)(E).
Because defendant did not file a timely appeal from the June 18 order, we will not consider his assertions that plaintiff should "return to her son $10,000 child support money"; that plaintiff "must return to her son $5,000 cash that she took from his briefcase"; and that she "must pay half of son's medical expense." Those claims were considered and rejected by the trial court on June 18, 2010.
The only order properly before us on this appeal is the October 6, 2010 order. Defendant's appellate challenges to that order are not supported by citations to the record, nor are they supported by evidence in either party's appendix. His arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated on the record by Judge Lisa P. Thornton on October 6, 2010, and those set forth in her written statement of reasons incorporated in the October 6 order. We add the following comments.
On this appeal, defendant asserts, as he did in the trial court, that plaintiff should pay support for their son, including a contribution to his college expenses. However, such a claim must be supported by legally competent evidence. See Newburgh, supra, 88 N.J. at 546. As the Supreme Court held in Newburgh, a claim for contribution toward a child's college expenses depends on the court's consideration of the following non-exhaustive list of factors:
In evaluating the claim for contribution toward the cost of higher education, courts should consider all relevant factors, including (1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; (2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education; (3) the amount of the contribution sought by the child for the cost of higher education; (4) the ability of the parent to pay that cost; (5) the relationship of the requested contribution to the kind of school or course of study sought by the child; (6) the financial resources of both parents; (7) the commitment to and aptitude of the child for the requested education; (8) the financial resources of the child, including assets owned individually or held in custodianship or trust; (9) the ability of the child to earn income during the school year or on vacation; (10) the availability of financial aid in the form of college grants and loans; (11) the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and (12) the relationship of the education requested to any prior training and to the overall long-range goals of the child. [Newburgh, supra, 88 N.J. at 545.]
Those factors were codified in N.J.S.A. 2A:34-23(a). See Gac v. Gac, 186 N.J. 535, 543 (2006).
As Judge Thornton correctly observed, defendant did not submit legally competent evidence to permit her to consider the Newburgh factors. In particular, as she noted, he did not produce proof of the son's college and other living expenses, or the son's resources including student loans and earnings from part-time employment. Notably, although the son is an adult, defendant did not submit an affidavit or certification from the son attesting to his financial need, or his financial resources, or even his desire to receive financial assistance from his parents. We agree with Judge Thornton that, as with his previous applications, defendant once again failed to support his motion with evidence. Therefore, we affirm her order of October 6, 2010, denying his motion. In light of defendant's repetitive motion practice, and his failure to support his motions with evidence, we find no abuse of the judge's discretion in awarding counsel fees to plaintiff. See Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004); Kozak v. Kozak, 280 N.J. Super. 272 275-76 (Ch. Div. 1994).
Finally, we note that, regardless of his parents' agreement, so long as the son is unemancipated he has a right to financial support from his parents if he has a provable need that meets the Newburgh standards. Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993). Our opinion does not preclude the son from submitting his own application to the court, either pro se or through counsel, if he has legally competent evidence to support it and wishes to apply in his own name. See Gac v. Gac, supra, 186 N.J. at 546-47 (A child may make an application for college support). Should the son submit such an application, however, he may be required to appear in court and testify in support of the application. Lest there be any confusion on this point, in light of defendant's repetitive frivolous motion practice, we emphasize that defendant may not file a motion in his son's name, nor may he represent his son on a support application.