On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FM-01-734-01B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodriguez and Fasciale.
In this post-divorce matrimonial case in which plaintiff- wife sought to modify defendant-husband's child support obligations, plaintiff appeals from paragraph three of an October 22, 2010 order enforcing a verbal agreement to split equally the private high school tuition for the parties' children.*fn1 We reverse, remand, and direct the judge to (1) recalculate defendant's child support obligations, and consider in her analysis the children's private high school educational expenses and any other relevant factors; and (2) determine the nature of the parties' agreement and whether reallocation is warranted.
The parties were married for eight and one-half years, produced three daughters,*fn2 and divorced in 2001. On March 29, 2001, the court entered a final judgment of divorce (JOD), which incorporated the parties' property settlement agreement (PSA).
The PSA provided that defendant would pay child support and the parties would contribute to post-secondary education expenses "to the extent that each shall be financially able[.]" Although the PSA did not address private high school tuition, the parties alleged that at some point they agreed verbally to contribute to the costs equally.
Over the next decade, defendant's income increased substantially. As a result, plaintiff filed a motion to modify child support, and she requested that the judge (1) recalculate the parties' obligation under the PSA to pay post-secondary education costs, and (2) reallocate the parties' obligation to pay high school tuition.*fn3 Plaintiff argued that defendant's increased income constituted changed circumstances warranting a modification to defendant's support obligation. Defendant's counsel conceded that "a recalc[ulation] of the child support isn't a problem[,]" indicated that defendant agreed to send his children to private high school, but requested that the judge enforce the parties verbal agreement to split the high school costs equally.
The judge conducted oral argument, issued an oral opinion, and entered the October 22, 2010 order. She determined that plaintiff demonstrated changed circumstances due to defendant's increased income, agreed to modify defendant's support obligations, and reserved decision on the calculations "pending submission of additional information from both parties." The judge scheduled a plenary hearing, allowed the parties to resubmit child support guideline proposals,*fn4 and indicated that at the hearing she would address the parties' obligation to pay post-secondary education costs.*fn5 In paragraph three of the October 22, 2010 order, the judge denied plaintiff's request to recalculate the parties' obligations to pay high school tuition. In her oral decision, she stated:
On the high school cost issue[,] the parties have an oral agreement it appears, . . . without having a plenary hearing, but I do think that the certifications*fn6 . . . do not contradict one another, that there was an oral agreement for the parties to split the cost of high school fifty-fifty. If that was their agreement, I'm going to enforce that agreement. I'm going to deny the application for a change in the allocation of the high school costs at this time.
On appeal, plaintiff agrees with the judge that defendant's increased income constituted changed circumstances warranting modification of defendant's child support obligations.
Plaintiff contends, however, that the judge (1) failed to consider the children's high school expenses when modifying defendant's child support obligations, in violation of N.J.S.A. 2A:34-23 and the Child Support ...