On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-628-96-B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Hayden.
Following a hearing pursuant to Newburgh v. Arrigo, 88 N.J. 529 (1982), in this post-divorce dispute over payment of college costs, Judge Lawrence DeBello relieved the father, defendant Michael Camuso, of the obligation to pay his sixty-percent share for the 2010-11 school year upon evidence of a lack of communication regarding the son's college choice. The mother, plaintiff Dymphna Agos, has appealed.
The record discloses that the parties were married in 1991, they separated in 1994, and they were divorced in 1998. They have one child, a son, born in 1992. The final judgment of divorce, entered on May 4, 1998, incorporated a marital settlement agreement, which provided that defendant would pay $250 per week in child support and that, after utilization of specified custodial funds, defendant would pay sixty percent of the son's college expenses, after deductions for scholarships and student loans. College expenses were defined as including "application and testing fees, tuition, room, board, books, fees, supplies, and reasonable transportation to and from school." Plaintiff seeks that payment for the 2010-11 school year. She makes no claim of non-payment of child support, which defendant continues to pay on a regular basis.
The marital settlement agreement did not address child custody or visitation. However, the parties continued to honor the terms of a pendente lite order that provided for joint custody of the son, with plaintiff assuming residential custody. A visitation schedule was established for defendant. With the exception of a brief period of time when visitation was suspended because of claims by plaintiff that defendant had committed acts of child abuse - claims that were later determined to be unfounded - visitation continued for approximately ten years in accordance with the parties' agreement, as modified to accommodate the son's schedule, which became busier as he grew older. During this period, defendant saw his son frequently and additionally communicated with him by telephone and text message.
In 2006, defendant remarried, without prior notice to his son, and in October 2007, defendant's new wife gave birth to a baby girl. Although visitation continued for some time thereafter, in April 2008, the son rejected any further contact with his father. At the hearing, the son testified that he felt like a "third wheel" and an "outcast" in his father's new family - feelings that the son expressed to his mother - and that, generally, his father made him feel worthless. However, neither the son nor plaintiff divulged to defendant the reason for the estrangement, despite defendant's entreaties that they do so. Plaintiff took the position that the matter was solely between defendant and the son, and she declined to intervene.
In October 2008, defendant requested that the three engage in reconciliation therapy, which was arranged. However, the son refused to attend counseling with his father, and soon the counseling sessions were terminated. A letter written by defendant to his son upon the advice of the counselor remained unopened. When defendant attempted to contact his son by cell phone, the son had the phone disconnected, claiming that defendant's calls resulted in over-charges on his phone bill, which the son paid out of his allowance. Thereafter, defendant attempted to communicate by e-mail, but was rebuffed.
In May 2010, defendant asked plaintiff whether he would be invited to his son's high school graduation, and after a number of queries, he was told by plaintiff that the son did not want him to attend. Plaintiff then complained when defendant sent the son a graduation card, but not a gift.
During the early part of 2010, defendant sought information from plaintiff regarding the son's college plans. In February, plaintiff responded by naming some schools to which he had applied, but then stated that she really did not know all of the colleges to which applications had been sent, because the son applied on-line. In fact, in April 2010, the son was accepted to a five-year co-op business and engineering program at Drexel University in Philadelphia, a school that had not been identified in any fashion in prior communications. Some time thereafter, plaintiff rented an apartment near the school for use by her and the son during the week at a cost of $44,000 per year, while maintaining her residence in the Trenton area.
Although plaintiff paid a deposit on the Drexel tuition in April, neither she nor the son disclosed the son's college choice to defendant at that time, despite his frequent inquiries. In a June 2, 2010 e-mail, plaintiff informed defendant: "As far as [the son's] choice of college, I am hoping that he will let you know his college choice himself. He will be a commuter and living with me." Additionally, plaintiff gave defendant some of the details of projected costs. However, she did not disclose the identity of the school.
Two months later, on August 7, 2010, plaintiff finally informed defendant that the son had been accepted at Drexel and that tuition and expenses would be, after subtraction of $12,000 in financial aid, the sum of $27,180. Plaintiff stated that she expected defendant to pay sixty percent of the cost, and she demanded payment of his portion of the tuition payment within ten days. Plaintiff did not disclose that she and the son would be living together in ...