On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-62-96.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Alvarez.
Defendant Peter Hagarty appeals from a March 11, 2011 order requiring him to contribute twenty-eight percent of his youngest daughter's college tuition and expenses. We affirm in part and reverse in part, and remand the matter for a plenary hearing on the issue of defendant's proportionate share of the obligation.
From the time of their divorce in 1997 to January 2009, defendant and plaintiff Nina Sciacca shared joint custody and equal time with their two daughters, the oldest of whom has long since been emancipated. In fact, the divorce decree required plaintiff to pay $57 per week in child support to defendant. The record does not reflect when that order was modified, or if defendant is currently ordered to pay child support directly to plaintiff on behalf of the remaining unemancipated child.
In January 2009, in the middle of her senior year in high school, the youngest child and defendant had a serious conflict, and she chose as a result to live exclusively with plaintiff. Prior to her departure from his home, defendant had assisted the child in preparing for her SAT exams, completing four college applications (including to Lake Erie College where she is now a student) as well as completing her financial aid submissions. The child's academic focus is on equestrian studies, as her ambition is to become a member of the Olympic equestrian team. The admission letter from Lake Erie College was sent to defendant's home because the college applications were mailed from that address. The financial aid letter from Lake Erie College was also sent to defendant's home.
In late February 2009, after the child's admission to Lake Erie College, defendant e-mailed plaintiff that because of his allegedly reduced income and the child "being very abusive to [defendant] both physically and verbally[,]" he was not going to "reward [her] with carte blanche towards her collegiate choices." Thus even after the child had decided to attend Lake Erie College, defendant continued to press her to visit and consider another less expensive school before making her final choice.
By spring 2009, plaintiff and defendant had begun the exchange of acrimonious e-mails regarding defendant's contribution towards the child's college education, which continued through to the filing of plaintiff's motion. Commendably, despite being unable to reach an agreement, both parents took the child to Lake Erie College for the start of her freshman year.
Defendant was diagnosed with prostate cancer on February 12, 2010. Two days prior to his scheduled surgery, he suffered a heart attack and a stint was placed in an artery. On a date not specified in the record, a second stint was implanted after a second heart attack. His cancer surgery was postponed to August 2, 2010. After surgery, defendant was medically cleared by his treating oncologist for work as of October 2, 2010, with an "excellent prognosis."
Defendant is an upholsterer. He was laid-off in 2008 and that year received unemployment compensation totaling $18,705. In 2009, he received $19,095 in unemployment compensation. He then started his own business, claiming to gross only $9390 from January 1, 2010 to October 30, 2010, resulting in a net of only $2895.
On October 22, 2010, plaintiff filed the motion to compel defendant to contribute to the child's college education which resulted in the order now appealed. On January 14, 2011, after oral argument on the application, the judge determined that defendant was obliged to contribute to the child's college tuition and expenses. He deferred calculating the amount until the parties supplemented the record, however, directing defendant to "provide  within thirty days, updated medical reports which will address the prognosis and defendant's ability to work as an upholsterer." The only additional material defendant submitted was the oncologist's letter clearing him for work as of October 2, 2010.
In his March 11, 2011 decision, the trial judge acknowledged that defendant was unable to work for brief periods of time in 2010 as a result of health issues. But as the judge correctly stated, temporary unemployment is not equivalent to a substantial change of circumstances. See Gertcher v. Gertcher, 262 N.J. Super. 176, 176 (Ch. Div. 1992).
Therefore, based on plaintiff's annual income of $90,054.36 and the income the judge imputed to defendant of $34,410,*fn1
defendant was ordered to pay twenty-eight percent of the child's tuition and expenses, plaintiff to pay the remaining seventy-two percent. The obligation was imposed retroactive to the fall of 2009, hence defendant owed plaintiff a total of $13,138.95 for two academic years in addition ...